REPORTS OF OASES RULED AND ADJUDGED IN THE SEVERAL COURTS OF THE UNITED STATES AND OF PENNSYLVANIA, HELD AT THE SEAT OF THE FEDERAL GOVERNMENT. BY A. J. DALLAS. A.tque eo magis neeessaria est hac opera, quod et nostro saeculo non desunt, et olim non defuerunt, qui hanc juris partem ita contemnerent, quasi nihil ejus prater inane nomen existeret.—Grotius. VOL. IV. THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETO. THE BANKS LAW PUBLISHING COMPANY, 21 Murray Street, NEW YORK. 1899. Entered according to Act of Congress, in the year 1882, By BANKS & BROTHERS, b the office of the Librarian of Congress, at Washington. A TABLE OF THE NAMES OF THE CASES COMPRISED IN THIS VOLUME. The references are to the Stab ♦ pages. A ♦page Amelia, The.................. 34 Anonymous.................. 147 Anonymous.................. 214 Attorney-General v. Grantees... 237 Austyn v. McLure............ 226 B B. C. v. Latimer........ app. i. Balfour v. Meade........ 175 n., 363 Ball v. Dennison ........... 163 Bank v. Pettit............. 127, Bank v. Wycoff................ 151 Bas v. Tingy................ 37 Beissell v. Sholl............211 Bell v. Andrews............ 152 Bell v. Beveridge............272 Bell v. Levers.............. 210 Bender v. Fromberger,.... 436,441 Black v. Wistar............. 267 Blaine v. The Charles........ 22 Blair v. Miller.............. 21 Blanchard v. Ingersoll. ...305 n. Boyd«. Cowan................ 138 Bradley v. Bradley...........112 Browne v. Arbunkle..........338 n. Burd «.Smith................. 76 Bussy «. Donaldson.....,,. 206 Butler w. Penn...........354 0 ♦page Galbraith«. Searjght..........325 Calhoun’s Lessee «. Dunning... 120 Carr «, Kepple,, 155 Carson «, Hood’s Executors..... 108 Chancellor «. Phillips.......... 213 Charles Carter, The.22 Cochran «. Cummings........ 250 Conframp «. Bunel............ 419 Commonwealth v. Addison.......225 Commonwealth «. Baynton..... 282 Commonwealth v. Biron......... 125 Commonwealth «. Chambre....... 143 Commonwealth «. Coxe.......... 171 Commonwealth «. Dallas........ 229 Commonwealth «. Dillon....... 116 Commonwealth «. Fitch212 Commonwealth «. Franklin. 255, 316 Commonwealth v. Gibbs....... 253 Commonwealth «. Lyon........ 302 Commonwealth v. Matlock..... 303 Commonwealth «. McKissick.,. 292 Commonwealth «. Mulatto Bob. 145 Commonwealth «. Shaffer, app. xxvi. Conrad v. Conrad’s Adm’rs..... 130 Cooper «. Telfair................. 14 Coulon «. Maybin............. 293 Course «. Stead.............. 22 Cramond’s Ex’rs «. U. S. Bank. 291 ili CASES REPORTED. *PAGE Crawford v. Willing........ 286 Crousillat v. Ball.............294 D Deering v. Parker.......app. xxiii. Deshler v. Beery...............300 Donaldson v. Means............ 109 Donath v. Ins. Co. of North Am. 463 Duncanson v. McLure............308 Du Pont v. Pichon..............321 Dutilh v. Gatliff............. 446 E Eddowes v. Neil................133 Edgar v. Robinson..............132 Eliza, The..................... 37 Enmell v. Garwood...............321 n. Evans v. Bollen............. 342 Ewalt v. Highlands........... 161 Ewing v. Houston............... 67 F Falconer v. Montgomery.......232 Febeiger v. Craighead........ 151 Fitzgerald v. Caldwell’s Ex’rs... 251 Freeman v. Ruston............214 G Gander v. Burns............... 122 Geyer v. Irwin.................107 Graham v. Bickham............. 149 Guppy v. Brown.................410 H Hazlehurst v. United States .... 6 Heidekoper v. Douglass.......392 Hepburn v. Levy................218 Hollingsworth v. Duane.......353 Hollingsworth v. Fry...........845 Holloback v. Buskirk’s adm’rs.. 147 Humphries v. Blight’s assignees. 370 Hurst’s Case...................887 Hurst v. Jones............... 853 J Jackson v. Winchester. ••••••• • 205 kiv ♦page Johnston v. Haines.......... 64 Jones v. Ins. Co. of N. Am. 246,249 K Kepple v. Carr............. 155 Kisselman v. Old........... 168 Kingston v. Gerard......... 274 Knox v. Greenleaf.......... 360 L Lacock’s Case.............. 801 Lea v. Yard............... 95 Levezey v. Gorgas........... 71 Levy v. United States Bank.... 234 Levy v. Wallis............. 167 Little v. Dawson............Ill Ludlow v. Bingham........... 47 Lyle v. Barker.....«........483 M McClay v. Hanna............ 160 McCullough v. Young........ 292 McEwen v. Gibbs............ 137 McFadden v. Parker......... 275 McLaughlin v. Dawson........221 Massey’s Executors v. Learning. 123 Mather v. Pratt.............224 Maxwell v. Levy.............830 Maybin v. Conlon............298 Mayor v. Mason..............266 •Mitchell v. Smith..........269 Moliere v. Noe..............450 Morgan v. Insurance Company of North America............455 Morris v. Neighman..........209 Morris v. Smith.............119 Mossman v. Higginson........ 12 Murgatroyd v, McLure........842 N New York v, Connecticut.... 1, 8, 6 Nicholson v. Wallis..... 164 O O’Hara v. Hall..............848 Ozeas v. Johnson............434 CASES REPORTED. P ’PAGE Passmore v. Pettit...........271 Pemberton v. Hicks........... 168 Penn v. Butler...............354 Penn v. Kline................403 Penn v. Penn.............. 354 Pollock v. Hall..............222 Priestman v. United States.... 28 R Racroth v. Van Buskirk.......147 Reed v. Ingraham.............169 Robinson v. Adams.........app. xii. Rundle v. Murgatroyd......304 Russel v. Union Insurance Com- pany ........................421 Rutherford v. Fisher......... 22 S Sansom v. Ball............. 459 Schenkhouse v. Gibbs.........136 Seagrove v. Redman...........145 Searight v. Galbraith........325 Sharp v. Pettit............. 212 Sharpless v. Welsh...........279 Smith v. Brodhead’s Executors.. 115 Smythe v. Banks..............329 Snell v. Delaware Insurance Co. 430 Stanbury v. Marks........... 130 Stroud v. Lockart........... 145 Symonds v. Union Insurance Co. 417 T Talbot v. The Amalia, 84 ♦page Thurston v. Koch........... 348 Turner v. Enrille............ 7 Turner v. Bank of North Am.. 8 U United States v. U. S. Bank.. 235n. United States v. Cooper.....341 United States v. Cunningham... 358 United States v. Johns......412 United States v. McGill.....426 United States v. Passmore. .... 372 United States v. Priestman..30 n. United States v. Willings...376n. V Vaughan v. Blanchard........ 124 Vuyton v. Brieulle.......... 205 n. W Wagoner v. Shool............211 Walker v. Smith............ 389 Wainwright v. Crawford......225 Waters v. McLellan..........208 Watson v. Ins. Co. of North Am. 283 Weitzell v. Fry.............218 Welsh v. Murray.............320 Williams v. Paschal........ 284 Williamson v. Kincaid....... 20 Willing v. Rowland..........106 n. Willings v. United States... 374 Z Zantzinger v, Ketch .A..,...132 v A TABLE OF THE CASES CITED IN THIS VOLUME. The references are to the Star * pages. A *PAGH Alderson v. Temple...............4 Burr. 2241........................ 87 Attorney-General v. Grantees.....4 Dall. 237........................ 392 Attorney-General v. Guise........2 Vern. 266........................ 203 Avery v. Jenkins.................MS..................................269 B Badger v. Lloyd..................1 Salk. 232......................xviii. Balfour v. Meade.................4 Dall. 363................... 175, 392 Bank of N. A. v. McKnight........2 Dall. 158........................ 128 Berty v. Lord Faulkland..........12 Mod. 183; 1 Salk. 231........... 242 Bingham v. Cabot.................3 Dall. 382.......8, 9, 10, 27, 21, 26, 27 Blair v. Miller..................4 Dall. 21.......................... 25 Blanchard v. Ingersoll...........MS................................ 305 Blight v. Page...................3 Bos. & Pul. 295.. ’. ’. ’. ’. ’ ’. ’ ’ ’ 457 Bloomfield’s Case................5 Co 8ß qia Bonham v. Walker.................MS ............445 Bowes v. Brackett................Cowp. 239*. * xiv. Bradshaw’s Case..................9 Co no 43« Bridgwater, Countess of, v. Bolton 6 Mod. 112.................... '’ xiv Brown v. Franklyn................Carth. 474..........’.’.’.’.’iii. ix* Browne v. Arbunkle...............1 W. C. C. 484 ' 338 Browning v. Wright.............. .2 Bos. & Pul. 14............. ” ” 440 Brudenell v. Vaux................2 Dalh 302................... 144 Burrows v. Jemino................2 Str. 733............* ’ ’ ’ ..... 128 Bustard’s Case....................4 Co. 121.... 443 0 Chaloner’s Case.................... Dan. ßoo......................... 96 Chambers v. Mason................Yelv. 48 • ...............211 vii CASES CITED. *PAGH Chancellor v. Philips...........4 Dall. 213................ 168, 209 Chapman v. Steinmetz............1 Dall. 261.................... 157 Chew v. Jones...................MS............................. 223 Clarke v. Russell...............3 Dall. 415................... 340 Cole v. Rawlinson...............1 Salk. 235................ xviii. Commonwealth v. Cobbett.........3 Dall. 467................... 264 Commonwealth v. Cox.............4 Dall. 170.........243, 368, 392, 399 Course v. Stead.................4 Dall. 22 n................... 21 Cowperthwaite v. Jones..........2 Dall. 55................... 114 Crawford v. Willing........ ♦. * .4 DalL 286................... 390 D Dallas v. Hazlehurst............MS..............................106 Davie v. Stevens................1 Doug. 309....................xiv. Davis v. Parker.................MS............................. 223 Denn v. Gaskin..................Cowp. 659..................... xiv. Dixon v. Hosack.................MS............................. 141 Doe v. Carleton.................1 Wils. 225.................... 108 Duncanson v. McLure.............4 Dall. 308.................271-342 Duncomb v. Motteram.............Prac. Reg. Com. Pl. 62......... 139 Dundon v. Gaskell...... *........2 Yeates 268................ 288 E Emnel v. Garwood................MS..................,,..........321 Estwick v. Cailland.............5 T. R. 420...................90-94 Evans v. Astley.................3 Burr. 1581............... xviii. Ewalt v. Highlands..............4 Dall. 162.................175-221 F Fairclaim v. Shamtitle..........3 Burr. 1293, 1295............. 140 Falconer v. Montgomery..........4 Dall. 232.................... 272 Falkland, Lord, v. Bertie.......2 Vern. 339.................... 242 Fenwick v. Pearson..............Barnes 86...................... 140 Fitzgerald v. Caldwell..........2 Dall. 215.................... 251 Footman’s Case..................MS.............................. 96 Foulk v. Reimicks...............MS..............................223 Fox v. Franklin.................MS............................. 122 Froginorton v. Holyday..........3 Burr. 1622-3................ xix. Fry v. Porter...................1 Cas. in Ch. 138...............242 G Godin v. London Assurance Co.... 1 Burr. 492...,............... 351 Goss v. Withers.................2 Burr. 683.................... 449 - Graff v. Smith................1 Dall. 481.................... 453 Grayson v. Atkinson.............1 Wils. 333...............,,,. .xviii. Gregory v. Christie....,....... .Park Ins. 41.................. 462 viii CASES CITED. H ♦PAGE Hall v. Lawrence............... 4 T. R. 589................. .... 233 Hamilton v. Mendes..............2 Burr. 1198; 1 W. BL 2-76...... 449 Henfield’s Case.................Whart. St. Tr. 85..............xxiv. Hodgson v. Ambrose.........* 1 Doug. 327... *.................. xiv. Hogan v. Jackson..........>.....Cowp. 307. ................... xix. Holland Land Co. v. Coxe......... .4 Dali. 170......*........364, 368 Hooton v. Will..................1 Dail. 185, 45*0............. 321 Huff v. Parker.................3 Yeates 567..................... 285 Hurst v. Fell...................MS.......................*...... 133 Hurst v. Hurst.............. .3 Dail. 512.................. 387 Hurst v. Hurst...................2 W. C. C. 127................ 338 Hurst v. Rodney. *...............2 W. C. C. 49................. 387 I Ibbetson v. Beckwith.......u... .Cas. temp. Talb. 157......... . xviii. Inglis v. Grant............ *5 T. R. 530........................ 90 Ingraham v. Gibbs...............2 DalL 134........................ 136 J Jones v. Insurance Co. of N. Am,.,4 Dail. 246 ........ 250, 274 K Kerston v. Yeager... ;.......MS................,........ 223 Key v. Pearce.............. .2 Doug. 584.................7.’.. iii Kingston v. Girard ..........4 Dail. 274................ *250 Kingston v. Preston..........Doug. 665 .................. 242 Knight v. Lillo................ Wils. 81............777.. xix. L Lamalere v. Case........;..... 1 W. C. O. 435.............435 Laycock’s Case...............2 Dali. 128 .......77777 77 301 Le Caux v. Eden..............2 Doug. 572............. iii. Leech v. Armitage............2 Dali. 125.....’............223 Levine v. Will.......... ... .1 Dail. 430.7.77 77....7 7 453 Levy v. Wallis...............4 Dail. 167 ..........7. ’¿09 213 Lindo v. Rodney..............2 Doug. 591............. " ’ üi Lloyd v. Taylor..............2 Dali. 223................. 222 Lord Conningsby’s Case.......9 Mod. 95................... 9 Loveacres v. Blight..........Cowp. 335.....’xviii. M McCullough v. Huston.........1 Dali. 453___ m McKimm«. Elto»...............i Dali. ..... J ’ Ba McLaughlin v. Dawson......... .4 Dali. 221...... ......... Mather v. Pratt..... ».. ....4 Dali. 224 ... .777 ...77 ’86 ix CASES CITED. ♦bags Maxwell v. Levy.................4 Dall. 330.................. 338 Maybin v. Coulon................4 Dall. 298.................271, 313 Maybury v. Madison..............1 Cr. 137.................... 19 Mitchell v. Cue.................2 Burr. 660 .................. 140 Morris v. Barry.................2 Str. 1180................... 108 Morris v. Neighman..............4 Dall. 209.............175, 205, 243 Moses v. Macferlan..............2 Burr. 1005 ................. 340 Mossman v. Higginson............4 Dall. 12..................... 26 Mumford v. Church...............1 Johns. Cas. 147............. 448 Murgatroyd v. Crawford..........3 Dall. 491 ................314, 342 Murgatroyd v. McLure............3 Yeates 45................... 308 N Neave v. Forbes.................MS..............................223 Needier v. Bishop of Winchester./.Hob. 229..................... 424 Newby v. Reed...................1 W. BL 416.....................352 Norton v. Turville..............2 P. Wins. 145................. 116 P Penn v. Baltimore...............1 Ves. 454....................4, 171 Penn v. Goff....................1 W. C. C. 390................. 410 Perit v. Wallis.................2 Dall. 252.................... 167 Perot v. Penrose................MS............................. 456 Plym v. Skillenbergen...........MS............................. 223 Pringle v. Vaughan..............MS............................ 223 Pollard v. Shaaffer.............1 Dall. 213.....................245 Purviance v. Angus.1 DalL 180.. .*•••••....................... 206 R Ravara’s Case...................2 Dall. 297................... xxiv. Reed v. Ingraham................3 Dall. 505..................... 58 Rex v. Harrison.................1 Leach 215.....................416 Rhinelander v. Ins. Co. of Penn.. .4 Cr. 29.................... 450 Ridly v. Egglesfield............2 Lev. 25...................... ix. Robertson v. Vogle..............1 Dall. 252.................... 128 Robinson v. Robinson............1 Burr. 50-1....................xv. Rush v. Cobbett.................2 Yeates, 275................ 264 S Santa Cruz, The.................1 Rob. 54..................... 44 Scott v. McClenachan............MS..............................137 Scrimshire v. Aiderton..........2 Str. 1182.................... 97 Sheldon’s Case..................Cro. Eliz. 483.................. 85 Sims v. Irvine..................2 Dall. 383.................... 329 Starret’s Case..................1 Dall. 356.................... 888 Steinmetz v. Currie.............1 Dall. 234, 270............... 166 Stephens v. Hide ...............Cas. temp. Talb. 29............xiv. CASES CITED. *PAGB Sterret v. Chambers............MS..............,,..............223 Stevenson v. Snow..............3 Burr. 1237................... 471 Strongv. Cummin...... • •......2 Burr. 770.................... • xiv. T Talbot v. Braddill.............1 Vern. 183...........,........ 242 Talbot v. Seeman...............MS.............................. 42 Tanner v. Morse................Cas. temp. Talb. 284.........xviii. Taylor v. Rebera...............Godb. 76....................... 242 Tharpe v. Bell.................MS............................. 142 Thomas v. Howell...............1 Salk. 170; 4 Mod. 66......... 242 Treheme v. Gressingham.........Barnes 59...................... 141 Tufnell v. Page................Barnard. 9...................xviii. Turner v. Bank of North America.4 Ball. 8................... 21, 26 Turner v. Enrille..............4 DalL 7...................13, 26 U United States v. Conyingham....4 DalL 858.............. 168, 209, 213 United States v. Ravara........2 DalL 297..................... 374 United States v. Russell.......MS.............................\ 414 United States v. Worrell.........2 DalL 384................. 874 V Vachel v. Vachel...............1 Cas. in Ch. 129............. 242 Vuyton v. Brenell...............1 W. C. C. 467................ 206 W Wallace v. Fitzsimmons.........1 Dall. 248.. 357 Water v. McClellan.............4 DalL 208...................*... 213 Watts v. Willing...............2 Dall. 100.................." 157 Weston v. Mason................3 Burr. 1725................* *" 108 Whitefield’s Case..............1 Lill. Pr. Reg. 680.... ” ; 141 Williamson v. Kincaid..........4 Dall. 20 .................*2*5 26 Willing v. Rowland.......... .MS......................WWW... *106 Worlay v, Harrison.............Dyer 249.................. * * * * 333 Y Tarte, v. Stewart.............MS............................. 142 V xi ““ CASES DETERMINED IN THE SUPREME COURT OP THE UNITED STATES. AUGUST TERM, 1799. Present, Ellsworth, Chief Justice, and Paterson, Chase and Washington, Justices. State of New York v. State of Conneotioitt et al. Injunction.—Equity process. An injunction will neither be granted by the court, nor a single judge, without reasonable notice to the adverse party, or his attorney: what is reasonable notice. An injunction will not be granted, to stay proceedings in common-law suits, at the instance of a state, not a party thereto, nor interested in their decision. A subpwna in equity must be served sixty days before the return-day. Bill in Equity. " The State of New York, one of the United States of America, by Josiah Ogden Hoffman, the attorney-general of the said state,” filed this bill in consequence of the rejection of the motion to grant writs of certiorari, for the removal of Fowler v. Lindsey and Fowler v. Miller (3 Dall. 411),1 from the circuit court of Connecticut into the supreme- court The plaintiffs in those suits were made defendants to the present bill; and the complainant, after setting forth the title of New York to the lands in question, prayed (inter alia) for an injunction against them. The notices to the defendants, that the injunction would be moved for, were delivered on the 25th and 26th of July; but on the 6th of August,(a) Ingersoll, who appeared for. the individuals, though not for the state, referred to the act of congress, which provides, that “ no writ of injunction shall be granted, in any case, without reasonable previous notice to the adverse party or his attorney, of the time and place of moving for the same. (1 U. S. Stat. 334-5, § 5.) And he contended, that reasonable notice had not been given in this case. (a) The term commenced on the 5th of August, but a quorum of the judges did not.attend until the day following; and Cushing and Ibedell, Justices, were prevented by indisposition from taking their seats on the bench, during the whole term. In Fowler v. Lindsey, a certiorari was re- because she was not interested in the eject-fused, because the state was not a party to the ments. record; in this case, an injunction was denied, 4 Dall.—1 j *2 SUPREME COURT [Aug. New York v. Connecticut. * Hoffman (the Attorney-General of New York) contended, that the notice was reasonable in relation to its present object; though it might not be sufficient for requiring the defendant to put in an answer or demurrer to the bill. The injunction prayed for is not a perpetual one, but only until answer, and further order of the court. Nor ought the section of the act of congress to bo extended by construction ; for a universal application of the rule would be unreasonable, and in many cases, enable the party to defeat the very purpose of an injunction. It is questionable, indeed, whether the section at all relates to a motion, either in the supreme court or the circuit court, for an injunction ; since its only object seems to have been, to vest in a single judge the same power that the courts previously-possessed, to grant the writs of injunction and ne exeat. But at all events, if the court shall think notice of such a motion necessary, they will construe the shortest notice to be reasonable notice, for the purpose of preserving peace, and effectuating justice. Ingersoll, in reply.—With respect to the state of Connecticut, it is a fact, that since the decision on the motion for a certiorari, at the last term, there has not been a meeting of the legislature ; so that it is impossible to ascertain what course she will adopt on the occasion ; and with respect to the individual plaintiffs in the circuit court, it is a matter of great importance, that a trial on their rights should not be suspended, by the interposition of a state, whose interests cannot be affected by any decision that may be given below. It is enough, however, that by the positive provisions of the act of congress, it is contemplated, that no injunction shall issue, in any case, unless satisfactory reasons are assigned; and that, therefore, reasonable notice of an application for the writ, must be given to the adverse party. The opinion of the Court was delivered by the Chief Justice. Ellsworth, Chief Justice.—The prohibition contained in the statute, that writs of injunction shall not be granted, without reasonable notice to the adverse party or his attorney, extends to injunctions granted by the supreme court or the circuit court, as well as to those that may be granted by a single judge. The design and effect, however, of injunctions,.must render a shorter notice, reasonable notice, in the case of an application to a court, than would be so construed, in most cases of an application to a single judge : and until a general rule shall be settled, the particular circumstances of each case must also be regarded. Circumstanced as the present case is, the notice which has been given, is, in the opinion of the court, sufficient, as it respects the parties against whom an injunction is prayed. *3] *Same Cause. The bill in this case contained an historical account of the title of New York, to the soil and jurisdiction of the tract of land in dispute ; set forth an agreement of the 28th of November 1883, between the two states, on the subject; and prayed a discovery, relief and injunction to stay the proceeding in the Connecticut ejectments. 3 Ball. 411. As the state had not appeared, the question of injunction was the only one now argued. Hoffman (the Attorney-General of New York), in support of the prayer for an injunction, and the general merits of the bill, urged various points, 2 1799] OF THE UNITED STATES. 3 New York v. Connecticut. with great force and ability. 1st. It is necessary to execute the special agreement between the states: it is a principle of equity, that wherever there is an agreement as to a right, whether it is a mere franchise, or a right of soil, it shall be enforced and rendered conclusive upon the parties, by the interposition of the court. The agreement admits that the tract of land belonged to New York ; and the bill states, that notwithstanding this admission, Connecticut has since undertaken to grant a part of it to the plaintiffs in the ejectments. Hence, it became necessary (or the bill would have been incomplete) to make those plaintiffs parties to the present suit. The agreement, indeed, only gives the equitable title to New York ; while the plaintiffs below possess the legal title, and must, of course, recover in the ejectments. A specific performance of the agreement being decreed against Connecticut, would not be an adequate and complete remedy ; and all parties in interest, however remote, must be brought before the court, or they cannot be affected by its proceedings. 2d. It will prevent a multiplicity of suits. The bill is emphatically a bill of peace ; since, considering the character of the parties to the principal controversy, without this remedy, the consequences upon the public tranquillity can hardly be conjectured. It is true, however, that the right of the state of New York cannot be affected by a decision in the circuit court; but until that right is lawfully settled, the number of suits, by individuals, must be indefinitely great; and merely to avoid a multiplicity of suits, to cut off, by one decision, various sources of strife and litigation, is a substantive ground for the exercise of a chancery jurisdiction. 1 Atk. 282; 2 Ibid. 484. 3d. It is a bill for the discovery of title, which parties in interest, as well as parties in possession, may certainly maintain. 1 Ves. 249. (a) 4th. It is a bill to settle a question *of boundary between two slates. Of this question, the court can, incontestably, take cognisance ; and it will not allow the decision of the principal matter to be interrupted or prevented by collateral considerations; particularly, when the decision of the principal, will settle all the inferior matters in dispute. In Penn v. Pcdtimore, 1 Ves. 454, the bill was sustained upon similar principles; and the. jurisdiction there assumed, upon principle, in a case of contested provincial boundary, may surely be exercised here under the additional sanction of the constitution. 2 Dall. 442, 415, 419; 3 Ibid. 1, 412. But it is not simply a bill to settle a question of boundary between two states ; it involves the right of soil, which, in relation to a great part of New York’ results from the right of jurisdiction ; so that, deciding the latter, is virtually a decision of the former. In this respect, New York is, perhaps, distinguished from her sister states, whose claims of territory are, generally founded upon positive grant; while her claim of soil is a mere incident of the sovereignty and jurisdiction with which the revolution invested her. (5) defiX^tiUtT0^ Justice-~Does the biU etate’ that the plaintiff is ignorant of the Hoffman.—Yes, expressly. Washington, Justice.—Then you are aware, that if the injunction should be granted, upon that ground, it must, of course, be dissolved, as soon as the discoverv is obtained. J Justice.—Generally speaking, the proposition is true, that, as to states, jurisdiction and the right of soil go together. 4 8 4 ' 1 ‘supreme COURT ’ [Aug. New York v. Connecticut. Ingersoll, against granting the prayer for an injunction.—In the suits below, the state of New York is not a party, and cannot be affected oy their decision ; while the defendants below are not parties to the present bill, though they are the persons most likely to be injured by those suits. But no part of the bill states that any of the land belongs to New York ; so non constat that she is interested in the question of soil; and the question of state boundary cannot be decided, as between the states, in the circuit * court, (a) There is no instance of the interposition of a court of -* *equity, by way of injunction, unless upon the application of a party immediately interested in the subject of the common-law suits, or there is property likely to be withdrawn. 1 Ch. Prec. 186-7 ; Gilb. Ch. 19 ; 2 Dall. 402 ; 5 Bot. Car. Cane. 439 ; Hind. Ch. 585. Besides, there is a regular course, in which the judgment of this court, independent of its equity character, may be obtained ; as, by a writ of error, on a demurrer to evidence, the construction and effect of the alleged agreement between the states might here be revised, and authoritatively declared ; and “ suits in equity cannot be sustained in any court of the United States, in any case where plain, adequate and complete remedy may be had at law.”(&) (1 U. S. Stat. 82, § 16). Cowp. 215-6 ; 2 H. Black. 187. An eventual responsibility cannot constitute a party to the suits below. The several states should, in justice, refund the price of the confiscated estates, if those, who have now brought suits against the purchasers under their respective laws, should succeed ; and Pennsylvania was bound, in honor, to compensate General Irwine for the loss of Montour’s Island, on the failure of the title derived from her grant (3 Dall. 425) ; but surely, such considerations will not constitute parties to a judicial proceeding. As to a discovery of title, by whom and (a) Ellsworth, Chief Justice.—If the bill contains no averment of a right of soil in New York, I think, it must be defective, and lays no foundation for an injunction. To have the benefit of the agreement between the states, the defendants below (who are the settlers of New York) must apply to a court of equity as well as the state herself ; but in no case can a specific performance be decreed, unless there is a substantial right of soil, not a mere political jurisdiction, to be protected and enforced. Besides, is not the bill, likewise, defective for want of making the defendants below parties to it ? Chase, Justice.—The validity of the grant of either state must depend upon the question of boundary ; for neither New York nor Connecticut could grant land, which it did not own. Hence, I think, the question of boundary must necessarily arise in the suits below. Paterson, Justice.—On the question just proposed by the chief justice, it may be remarked, that some difficulty would occur in sustaining a bill in this court, at the suit of the defendants below. But it does not appear to me, that any of the cases in the books apply to the present case. What does the bill present ? A case of disputed boundaries between two states ; and the question of soil, oh their conflicting grants, must be decided by the question of jurisdiction. The state of Connecticut has granted out the Gore : the state of New York has also granted out the Gore. The grantees of Connecticut have brought suits in Connecticut, against the grantees of New York, and will obtain possession of the land. If the grantees of New York are thus evicted, they will brings uits in New York, and, on their possession. But where will this feud and litigation end ? It is difficult and painful to conjecture, unless this court can, under the constitution, lay hold of the case, to decide the question of boundary, which will be a decision of all the appendages and consequences. (5) Paterson, Justice.—The rule was so before, and is so, independent of the provision in the act of congress. 4 1799] OF THE UNITED STATES. 5 New York v. Connecticut. Against whom is it sought ? One party to the suit does not require it from another, but a third person requires it, in a suit to which he is not a party, and the decision in which cannot affect his right, whatever it may be. Lewis, for the complainant, in reply.—The difficulties of the case are obvious to all; and unless the present remedy is applied, the difficulties will dangerously increase. If the lands are not in Connecticut, the ejectments arc coram non judice: if they are not in New York, suits there would be equally objectionable. Neither state will be satisfied, however, by the judgment of a court held in the other ; and for want of a peaceful forum to decide the controversy, an odious and vindictive litigation may be perpetuated. But this court has a constitutional jurisdiction on a question of boundary between states ; and upon such an occasion, will be eager to exercise it. The interest of New York, too, is sufficient to justify the exercise of it, upon her application. The right and possession of a sovereign state, are not to be treated like the usufructuary right, the possessio pedis, of a farmer. A sovereign state possesses what she governs. But is not New York interested, even in a pecuniary point of view, so as to claim the interposition *of this court, to which her settlers, the defendants below, cannot originally resort ? It is a fundamental principle of the law of L ' nature and of nations, that every government is bound to preserve peace and order, to protect individuals, to indemnify those who trust to its faith, and to prevent a dismemberment of its territory. This political and moral obligation, enforced by a regard to her public improvements, and fiscal operations, creates an interest of the highest character in the government, of New York ; and such as the court will cherish with all its benevolence and authority. 21 Vin. Abr. 181, pl. 1 ; Ibid. 183, pl. 4, 5, 7 ; Ibid. pl. 8, 11 ; 3 Black. Com. 255-6. The Court, after advisement, delivered their opinion, that as the state of New York was not a party io the suits below, nor interested in the decision of those suits, an injunction ought not to issue. Injunction refused, (a) Same Cause. As the state of Connecticut did not appear, Hoffman moved that she should appear on the first day of next term, or that the plaintiff be then at liberty to proceed ex parte. (3 Dall. 335.) But Lewis observed, that the rule required that a subpoena issuing in a suit in equity, should be served (a) Hoffman.—In every grant by New York, there is a reservation of gold and silver mines, and of five acres per cent for roads. The bill might, besides, be amended, by averring the state to be interested in a residuum of the land, if that would be sufficient to sustain the prayer for an injunction. Washington, Justice.—The amendment would not satisfy me; for my opinion is founded upon the fact, that New York is not interested in the suits below. Chase, Justice. It is a mere bill to settle boundaries; and we must take it as we nnd it, not as it might be made. ++ Chief Justice.—If there had been a quorum of judges, without my attendance, I should have declined sitting in this cause. As it is, I am glad, that decision.1011 brethren’ dispenses with the necessity of my making a part in the 5 6 SUPREME COURT [Aug. Turner v. Enrille. sixty days before the return ; which had not been done in the present case The first motion was, thereupon, waived ; and an alias subpoena awarded. (3 Dall. 320.) Hazlehurst et al. v. United States. Practice.—Non-pros. In error from the Circuit Court for the district of South Carolina. A rule had been obtained by Lee, the Attorney-General, at the opening of the court, that the plaintiffs appear and prosecute their writ of error within the term, or suffer a non-pros.: but it was found, that errors had been q assigned in the court below, and *a joinder in error entered here. The -I rule was, therefore, changed to the following : “ that unless the plaintiffs in error appear and argue the errors to-morrow, a non-pros, be entered.” The plaintiffs not appearing, the writ of error was non-prossed, according to the rule. Turner, administrator, -u. Enrille. Averment of jurisdiction. Where the jurisdiction of the federal courts depends on alienage, or the citizenship of the parties, it must be set forth on the record. Bingham v. Cabot, 3 Dall. 382, re-affirmed. Eebor from the Circuit Court of South Carolina. The record, as abridged for the judges, presenting the following case: The Marquis de Caso Enrille instituted an action on the case, against Thomas Turner, the administrator of Wright Stanley, in the circuit court of North Carolina, of June term 1795. A declaration in case was filed by the Marquis de Caso Enrille, of -----------------in the island of-, of June term 1796, in which it is set forth, that Wright Stanley (the intestate) and John Wright Stanley and James Greene were “ merchants and partners, at Newbern, in the said district p that Wright Stanley survived the other partners; that on the 4th of June 1791, in the lifetime of all the partners, they were indebted unto the said Marquis in------------------------------dollars ; and in consideration thereof, assumed to pay, &c. The 2d count, insimul computassent, when the said partners were found in arrear to the said Marquis, in other----------dollars, &c. The plaintiff concluded with the usual averments of non-payment, to the damage of the said Marquis,--------------------------------------dollars, &c. On the 30th November 1796, the defendant appeared, and pleaded— 1st. Non. assumpsit intest.: replication and issue. 2d. The statute of limitations as to the intestate : replication, an account-current between merchant and factor : rejoinder, and issue. 3d. Set-off, that the plaintiff was indebted to the intestate, on the 1st of January 1792, in more than the damages by the plaintiff sustained, &c., to wit, in $4000, for money had and received by the plaintiff to the intestate’s use, which sum is still due to the defendant, as administrator: replication, that plaintiff owed nothing, &c.: rejoinder, and issue. 4th. The statute of limitations, as to the administrator: replication, Ji . 1799] OF THE UNITED STATES. 7 Turner v. Bank of North America. that the demand was made within three years, &c : reminder, and issue. 5th. Plene administravit: replication, assets : rejoinder, and issue. On the 1st of June 1799, the issues were tried, a verdict was given on all the issues for the plaintiff, and .the jury assessed damages at $3289.65. Judgment for damages, costs and charges. Writ of error. Errors assigned : 1st. That it does not appear on the pleadings, &c., that either plaintiff or defendant was an alien, oi that they were citizens of different states : 2d. That there are blanks in the declaration for places, dates and sums : 3d. The general errors. Plea, in nullo est erratum: replication, and issue. *For the defendant in error, Dallas lamented the obvious irregu- pg larities on the face of the record, though the merits were incontestibly L established in his favor, by the verdict and judgment. He thought, however, that the court would give every reasonable intendment to the allegations of the record, in support of the judgment and verdict; and therefore, endeavored to distinguish the present case from the case of Bingham v. Cabot, 3 Dall. 382. In Bingham n. Cabot the defendant’s place of residence was not even stated; here, the defendants are stated to be merchants of Newbern, in the district of North Carolina. There, the plaintiffs were described generally of Massachusetts, &c.: here, the plaintiff is described specially of an island ; and the cause of action is found to arise on accounts between merchant and factor. It has not been judicially decided, that the averment of alienage, or of citizenship of different states, as a foundation for the federal jurisdiction, must be positive ; and it is sufficient, in reason, if circumstantial evidence of the fact can be collected from the record. As to the blanks in the declaration, in relation to the sums, Dallas requested an opportunity to consider how far the defect was cured by the verdict, or might be amended, if the court was not decisively against him on the first point. Ingersoll, for the plaintiff in error, observed, that the case was so very desperate, that it had been virtually abandoned by the opposite counsel. He should, therefore, decline troubling the court. By the Court.—The decision in the case of Bingham n. Cabot must govern the present case. Let the judgment be reversed with costs. Turner, administrator of Stanley, plaintiff in error, v. The President, Directors and Company of the Bank of North Amrrtcia, defendants- Jurisdiction.—Pœrties. Where an action is brought upon a promissory note, in a federal court, by an indorsee, »gainst the maker, not only the parties to the suit, but also the payee, must be stated on the record, to be such as to give the court jurisdiction.1 Error from the Circuit Court of North Carolina. This was an action upon a promissory note, made in Philadelphia, by Stanley, the intestate, in favor of Biddle & Co., and indorsed by Biddle & Co. to the Bank of North America. Id™“ V' Tommce> 9 087 5 Bradley v. Rhiner, 8 Wall. 893; Morgan v. Gay, 19 1 8 SUPREME COURT Turner v. Bank of North America. [Aug. The declaration (which contained only a count upon the note itself) stated, that the president and directors of the bank were citizens of the state of Pennsylvania; and that Turner, the administrator, and Stanley, the in-tstate, were citizens of the state of North Carolina; but of Biddle & Co., the payees and indorsers of the note, there was no other designation upon the record, than “ that they used trade and merchandise in partnership together, at Philadelphia or North Carolina.” * _ The error assigned and insisted upon, to wit, an insufficient de-scription of Biddle & Co., was founded *on that part of the 11th section of the judicial act (1 U. S. Stat. 79) which declares, that no district or circuit court “ shall have cognisance of any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.” Ingersoll, for the plaintiff in error, argued, that unless it was averred upon the record, that the original parties to the note, as well as the parties to the suit, were of different states, or one a citizen, and the other an alien, it could not judicially appear, that the circuit court had jurisdiction of the cause. Though the federal courts are not to be regarded as inferior courts, they are courts of a limited jurisdiction. The jurisdiction of the state courts is general; but the jurisdiction of the federal courts is special, and in the nature of an exception from the general jurisdiction of the state courts. That the parties are citizens of different states, is one ground for the exception ; and so far as respects the immediate parties to the suit, the ground for the exception sufficiently appears upon the record. But if an action is brought by the indorsee of a promissory note, he cannot have the benefit of the exception, unless he shows that his indorser, as well as himself, was entitled to resort to a federal tribunal. Congress knew, that the English courts had amplified their jurisdiction, through the medium of legal fictions ; and it was readily foreseen, that by the means of a colorable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper might be drawn into the federal courts. Hence, the original character of the debt is declared to be the exclusive test of jurisdiction, in an action to recover it. Unless the original character of the note furnished a subject of federal jurisdiction, it is emphatically declared, that “no district or circuit court shall have cognisance of the suit;” and a court of special jurisdiction cannot take cognisance of the suit, unless the case judicially appears by the record to be within its jurisdiction. Lord Coning shy’s Case, 9 Mod. 95. So, wherever a party takes advantage of a clause in a statute, to which a proviso is attached, he must not only bring his case within the general clause, but show that it is not affected by the proviso. 5 Bac. Abr. 666 ; Plowd. 410 ; Ld. Raym. Nor is the present too late a period to take advantage of the defect. Silence, inadvertence or consent cannot give jurisdiction, where the law denies it. In Bingham v. Cabot, 3 Dall. 382, the ground of jurisdiction was more strongly laid ; and yet a similar defect was successfully assigned for error. Bawle, for the defendant in error.—It is not intended to controvert the 8 1799] OF THE TTNITED STATES. 9 Turner v. Bank of North America. general proposition, that where a suit is brought before an inferior court, the circumstances that gave it jurisdiction *must be set forth on the r*in record ; and if they are omitted, it may be taken advantage of upon L a writ of error. But the circuit court is not, in technical language or intendment, an inferior court; and this consideration alone destroys the application of most of the English authorities. It is, then, to be remarked, that the judicial power is the grant of the constitution; and congress can no more limit, than enlarge the constitutional grant. In the second section of the third article, the constitution contemplates the parties to the controversy, as alone raising the question of jurisdiction ; and if the existing controversy is “ between citizens Of different states,” the judicial power of the United States expressly extends to it. (a) By the opposite construction, however, congress has imposed a limitation upon the judicial power, not warranted by the constitution, when, without regard to the immediate parties to the controversy, the law excepts from the cognisance of the federal courts, suits upon promissory notes, which, by assignment, have placed the immediate parties in the relation of citizens of different states. If the circuit court is not an inferior, neither is it, in the sense asserted, a limited jurisdiction, but it is a court of general jurisdiction, having some cases expressly excepted from its cognisance. It may be compared to the king’s bench in England, from whose general jurisdiction is excepted the cognisance of cases, belonging to the counties Palatine. Carth. 11, 12, 354; 1 Saund. 73; 2 Mod. 71-3. As to such courts, it is sufficient, if it appears to the appellate authority, that, from the subject-matter, the court below might have jurisdiction ; and at all events, it would be too late, on a writ of error, to take the exception—an objection not suggested in Bingham v. Cabot. Then, here, the parties are stated to be citizens of different states; the place was not exempt from federal jurisdiction; and the nature of the controvers'” did not, of itself, deprive the circuit court of its general cognisance of suits between citizens of different states. The Chief Justice delivered the opinion of the Court, in the following terms: Ellsworth, Chief Justice.—The action below was brought by the president and directors of the Bank of North America, who *are well p- . described to be citizens of Pennsylvania, against Turner and others, who are well described to be citizens of North Carolina, upon a promissory note, made by the defendant, payable to Biddle & Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are no otherwise , (a) Ellsworth, Chief Justice.—How far is it meant to carry this argument ? Will it be affirmed, that in every case, to which the judicial power of the United States extends, the federal courts may exercise a jurisdiction, without the intervention of the legislature, to distribute and regulate the power ? Chase, Justice.—The notion has frequently been entertained, that thefederal courts derive their judicial power immediately from the constitution; but the political truth is, that the disposal of the judicial power (except m a few specified instances) belongs o congress. If congress has given the power to this court, we possess it, not otherwise : and if congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, per aps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant. 9 11 SUPREME COURT [Aug Turner v. Bank of North America. described, than as “ using trade and merchandise in partnership together,” at Philadelphia or North Carolina : and judgment was for the plaintiff. The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co., the promisees, or any of them, are citizens of a state other than that of North Carolina, or aliens. A circuit court, though an inferior court, in the language of the constitution, is not so in the language of the common law ; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution or jealousy of the courts at Westminister long applied to courts of that denomination ; but are entitled to as liberal intendments or presumptions in favor of their regularity, as those of any supreme court. A circuit court, however, is of limited jurisdiction : and has cognisance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the cases which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction, until the contrary appears. This renders it necessary, inasmuch as the proceedings of no court can be deemed valid, further than its jurisdiction appears, or can be presumed, to set forth upon the record of a circuit court, the facts or circumstances which give jurisdictiou, either expressly, or in such manner as to render them certain by legal intendment. Among those circumstances, it is necessary, where the defendant appears to be a citizen of one state, to show that the plaintiff is a citizen of some other state, or an alien ; or if (as in the present case) the suit be upon a promissory note, by an assignee, to show that the original promisee is so : for by a special provision of the statute, it is his description, as well as that of the assignee, which effectuates jurisdiction. But here, the description given of the promisee only is, that “ he used trade” at Philadelphia or North Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a state, other than that of North Carolina, or an alien ; nor anything which, by legal intendment, can amount to such averment. We must, therefore, say that there is error. It is exceedingly to be regretted, that exceptions which might be taken in abatement, a ud often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits. Judgment reversed. 10 1800] OF THE UNITED STATES. ♦12 »FEBRUARY TERM, 1800. Present, Cushing, Paterson, Chase and Washington, Justices. Mossman, surviving executor, Plaintiff in error, v. Higginson, surviving partner, Defendant in error. Amendment.—Description of parties. A writ of error, regularly tested, with a blank for the return-day, was allowed to be amended, the term to which it was returnable, the time when it was filed in the court below, and when in the supreme court, appearing by indorsements on the writ.1 In proceedings in a federal court, in equity, to foreclose, it is as necessary to describe thè parties, as in any other suit. To give jurisdiction to a circuit court, it is not enough that an alien is a party ; it must also appear that the other party is a citizen.2 This was a writ of error, to remove the proceedings on a bill in equity, from the Circuit Court for the district of Georgia, tested the 27th November 1798, returnable on the--next. The case, on the bill and pleadings, was briefly this : Alexander Willy, an inhabitant of Georgia, being indebted to Higginson & Greenwood, British merchants, gave them a bond and mortgage, payable the first of January, 1773. In the year 1778, Willy was banished from the state of Georgia, and his estate confiscated by law. The mortgaged premises were seized and sold by the commissioners for forfeited estates, to certain purchasers, who afterwards sold the same to James Houston ; and the property remained in his possession, or in the possession of his executors, until the 12th of September 1796, when it was levied upon, sold and conveyed to William Mien, by the creditors of Houston ; notice of the mortgage having been given to Mossman, the executor of Houston, to Mien, the agent for his creditors, and to the marshal, before the sale. In March 1797, Higginson, the surviving mortgagee, filed the present bill, to foreclose the equity of redemption, stating himself to be a subject of Great Britain ; but in no part of the proceedings, were the defendants, or any of them, stated to be citizens of the United States. The defendants pleaded the confiscation laws of Georgia in bar, and answered *to the merits ; but Wash- r*, _ ington, Justice, overruled the pleas, and decreed, that unless William *-Mien paid the principal and interest of the debt, before the 17th of February 1799, the equity of redemption should be foreclosed. The merits of the decree were not, however, discussed on the writ of error, but the following points occurred : I. Dallas, for the plaintiff in error, moved to amend the writ, by inserting the return-day of the present term, in the blank. The writ is regularly tested, and by indorsements, it appeared, when it was filed below, and when it was filed here. The clerk of the circuit court had also indorsed, “ Returnable to February term 1799.” There is, therefore, sufficient matter to amend 1 And see Course v. Stead, post, p. 22. Bank, 2 Sumn. 422 ; Prentiss v. Brennan, 2 BL 2 Jackson v. Twentyman, 2 Pet 136 ; Pic- C. C. 162 ; Robson v. Bernard, 8 Id. 248. quet v. Swan, 5 Mason 35 ; Wilson v. City 11 13 SUPREME COURT [Feb’y Mossman v. Higginson. by; and the amendment is within the provision of the act of congress. (1 U. S. Stat. 91, § 32.) By the Court.—Let the amendment be made. II. It was objected by Ingersoll and Dallas, for the plaintiff in error, that the jurisdiction of the court did not appear upon the record, as there was no designation of the citizenship of the defendants. 3 Dall. 382, 369 ; Turner v. Enrille (ante, p. 7). It was answered, by E. Tilghman and Reed (of South Carolina), that as no process was prayed against Willy, he was not, in legal contemplation, a party to the suit (1 P. Wms. 593); that the prayer of process against Mossman, who never held the land, was irregular, and to be regarded as mere surplusage ; that there was no pretence to charge Houston ; and that Mien, being expressly stated to be the purchaser of the land, the court will take notice of the law of Georgia, by which no alien can hold real estate ; and by necessary implication, the purchaser must be a citizen. Besides, it is enough, under the constitution, the treaty of 1783, and the 11th section of the judiciary act, that an alien is a party to the suit, whose real object is the thing mortgaged, a proceeding in rem, and not a personal recovery. At all events, the court will permit the defect to be amended. Ingersoll, in reply.—The judiciary act was only intended to carry the constitution into effect, and cannot amplify or alter its provisions. The constitution nowhere gives jurisdiction (nor has any judge ever countenanced the idea) in suits between alien and alien. It is not an exception to the rule, that the bill in equity is in the nature of a proceeding in rem: for there cannot be a foreclosure of the equity of redemption, without a personal suit. It is not like the case of a monition to condemn a prize-ship, which is notice to all the world, and no party respondent is requisite; and the supposed inference of citizenship from purchasing land fails, when it is recollected that the purchase does not fix the use. The jurisdiction of the federal courts *1 (Const, art. III. § 2) *is not, where a question arises that may be J affected by a treaty, but where a case arises under a treaty ; and if a question on the validity of a treaty arises in a state court, there is a special provision for transferring it to the supreme court. (1 U.S. Stat. 84, § 22.) But in the present instance, it does not appear that any question can arise under the treaty; for it is not referred to, directly nor indirectly, in any part of the record. As to an amendment, there is nothing to amend by. The citizenship of the defendants could only be judicially known, by the admission of the parties, or by evidence of the fact. It is not expressly or Impliedly admitted ; and this court cannot try an issue to ascertain it. By the Court.—The decisions on this subject govern the present case; and the 11th section of the judiciary act can and must receive a construction consistent with the constitution. It says, it is true, in general terms, that the circuit court shall have cognisance of suits “ where an alien is a party;” but as the legislative power of conferring jurisdiction on the federal courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case, “ where, indeed, an alien is one party,” but a citizen is the other. Neither the constitution, nor 12 1800] OF THE UNITED STATES. 14 Cooper v Telfair. the act of congress, regard, on this point, the subject of the suit, but the parties. A description of the parties is, therefore, indispensable to the exercise of jurisdiction. There is here no such description ; and of course, Thé writ of error must be quashed. Cooper v. Telfair. Constitutional law. A state legislature, before the adoption of the constitution of the United States, had power to pass a bill of attainder and confiscation, unless restrained by the state constitution. The act of the législature of Georgia, of the 4th of May 1782, inflicting penalties on, and confiscating the estate of such persons as are therein declared guilty of treason, is not repugnant to the constitution of that state. Semble, that this court can declare an unconstitutional law invalid.(a) Quaere? Whether this court can invalidate laws enacted previously to the adoption of the constitution of the United States. Error from the Circuit Court for the district of Georgia. The record exhibited the following case : Basil Cooper, at present of the island of Jamaica, in the dominions of his Britannic majesty, formerly an inhabitant of the state of Georgia, brought an action in the circuit court of Georgia, to November term 1797, against Edward Telfair, of the district of Georgia, upon a bond for 1000/. sterling, equal to $4285.70, dated the 14th of May 1774. After oyer of the bond and condition, the defendant pleaded in bar, 1st, Payment : 2d, “That on the fourth day of May 1782, an act was passed by the legislature of the state of Georgia, entitled ‘ An act for inflicting penalties on, and confiscating the estate of such persons as are therein declared guilty of treason, and for other purposes therein mentioned,’ by which it is, among other things, enacted and declared, ‘ that all and every the persons, named and included in the said act, are banished from the said state ; and that all and singular the estate, real and personal, of each and every of the aforesaid persons, which they held, possessed or were entitled *to, in law or equity, on the 19th day of April 1775, and which they have L held since, or do hold in possession, or others holding in trust for them, or to which they are, or may be, entitled, in law or equity, or which they may have, hold or be possessed of, in right of others, together with all debts, dues and demands of whatsoever nature, that are or may be owing to the aforesaid persons, or either of them, be confiscated to and for the benefit of this state.’ That the said Basil Cooper is expressly named and included in the above in part recited acts ; and that he was, on the said 4th day of May 1782, and for a long time before, a citizen of the state of Georgia, and of the United States of America. That the said Basil Cooper, being a citizen, &c., owing allegiance, &c., on the 4th of May 1782, and for a long time before, adhered to the troops of his Britannic majesty, then at open war with the said state of Georgia and United States of America, and did take up arms with the said troops, &c. That the said Basil Cooper hath never since returned within the limits and jurisdiction of the said United States, or either ( a) The federal courts have the power to declare an unconstitutional law invalid. Federalist No. 78 ; Marbury v. Madison, 1 Or. 137 ; Cohens v. Virginia, 6 Wheat. 886, 414. 15 - SUPREME COURT [Feb’y Cooper v. Telfair. of them. That by virtue of the above-recited act, and also of an act, entitled, ‘ An act to continue an act to authorize the auditor to liquidate the demands of such persons as have claims against the confiscated estates, and for other purposes therein mentioned,’ passed the 13th February 1786 : and of another act entitled ‘ An act to compel the settlement of the public accounts, for inflicting penalties on officers of this state, who may neglect their duty, and for vesting the auditors with certain powers for the more speedy settlement of the accounts of this state, with the United States,’ passed the 10th of February 1787 ; the sum of money mentioned in the condition of the bond, and all interest thereon, have become forfeited and confiscated to the state of Georgia ; and the right of action attached thereto; and no cause of action hath accrued to the said Basil Cooper to demand and have of the said Edward Telfair, the said sum of money, &c.” To this plea, the plaintiff replied, “ that he was never tried, convicted or attainted of the crime of treason alleged against him ; and that by the constitution of the state (in force at the time of passing the acts in the said plea set forth, to wit, on the 4th day of May 1782), unanimously agreed to in a convention of the people of this state, on the 5th of February 1777, it is ordained, that— “Article 1. The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other. “ Article 7. The house of assembly shall have power to make such laws and regulations, as may be conducive to the good order and well-being of the state, provided such laws and regulations be not repugnant to the true intent and meaning of any rule or regulation contained in this constitution. “Article 39. All matters of breach of the peace, felony, murder - * and *treason against the state, to be tried in the county where the crime was committed, &c. “ Article 60. The principles of the habeas corpus act shall be part of this constitution. “ Article 61. The freedom of the press, and the trial by jury, to remain inviolate for ever. “ And that the said recited acts, so far as they can operate to bar the said Basil from maintaining his action, are repugnant to the true intent and meaning of divers rules and regulations contained in the said constitution, and are, as to the action of the said Basil, null and void: without that, &c.” The defendant demurred to the replication ; and the plaintiff joined in demurrer. On the 2d of May 1799, the circuit court, composed of Ellswobth, Chief Justice, and Clay, District Judge, decided, that the replication was insufficient ; that the plea in bar was sufficient; and that judgment on the demurrer be entered for the defendant. Upon this judgment, the present writ of error was brought, and the following errors assigned : 1. The general errors. 2. That the plea does not set forth the constitutional power of the legislature of Georgia, to deprive the plaintiff of his rights as a citizen; and on their own authority, to pass sentence of confiscation and banishment. 3. That the judgment decides that the legislature had cognisance of the treason alleged against the plaintiff, and could legally try, convict and banish him ; whereas, they had no such power, on constitutional principles. 14t 1800] OF THE UNITED STATES. 16 Cooper v. Telfair. 4. That by the judgment, it appears, the legislature could deprive individuals of their lives and property, without trial by jury, or inquest of office, contrary to the constitution of Georgia. 5. That the judgment gives effect to an act of Georgia, which is an union and usurpation of judicial, as well as legislative powers ; which powers the constitution declares should be kept separate. The case was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas, for the defendant, on the 7th of February 1800, upon the general question, whether the confiscation acts of Georgia, were repugnant to the constitution of the state, and therefore void ? For the plaintiff.—1st. If the law is contrary to the constitution, the law is void ; and the judiciary authority either of the state, or of the United states, may pronounce it so. (2 Dall. 308, 410 ; 3 Ibid. 383.) 2d. The law is contrary to the constitution, inasmuch as it is an exercise of the judicial power by the legislative *authority, in opposition to an express prohibition of such an union of jurisdiction. That acts of attainder, L banishment and confiscation are an exercise of judicial power, the English as well as the American authorities, clearly establish. (2 Woodes. Leet. 621-2 ; 11 State Trials, 25 ; 6 Ibid. 405 ; 4 Inst.; 2 Woodes. 147 ; 3 Dall. 389.) 3d. Whatever right Georgia had to confiscate the property of her enemy ; yet, as the pleadings show the plaintiff to have been a citizen, his property could only be forfeited by the regular judgment of a court, upon a trial by his peers, or the law of the land. As the case is now presented, it is a legislative act, by which the property of an individual citizen is arbitrarily taken from him, and given to the state of Georgia. (3 Dall. 388, 389.) For the defendant.—It is conceded, that if the law plainly and obviously violates the constitution of Georgia, it is void, and never was a valid rule of action. The only question, therefore, to be discussed, is, whether such a fatal collision actually exists ? Or, in other words, whether the legislature of Georgia had a power, consistently with the constitution, to pass a law, confiscating the property of her own citizens, who had fled beyond the reach of the ordinary legal process ? 1st. Georgia, at the time of passing the law, was a sovereign, independent state, with all the rights, prerogatives and powers resulting from that character; except so far as she had expressly devolved on congress a portion of her sovereignty; an exception that does not affect the present case. 2d. To a corporation of the most limited nature, the power of passing by-laws is a necessary incident. And to every sovereign legislature, an indefinite power of making laws is equally an incident, restricted only by impossibilities ; for even if they should be against natural justice, Blackstone tells us, they would be valid. 3d. The constitution of Georgia does not declare, that “ no bill of attainder shall be passed.” There is, therefore, no express restriction of the sovereign legislative authority upon the subject; and to decide in favor of the restriction, would be to make, ex post facto, not to enforce, the constitution of Georgia. 4th. Such acts of attainder and confiscation were not novelties in America, any more than in England. (2 Woodes. Leet. 621, 624, 497, 498, 622. See Confiscation Acts of the several states.) They are exercises of political authority, rather than of judicial power; they are laws, not judgments. And as the 15 17 SUPREME COURT [Feb’y Cooper v. Telfair. power of attainder, banishment and confiscation, is essential to the existence and operations of government, yet, cannot be exercised by the ordinary tribunals of justice ; it naturally belongs to the sovereign, that is, to the legislature of the nation. 5th. But, independently of the necessity of the existence of such a power, and of the implication that it does exist under every constitution, unless it is expressly excluded, a just analysis of the * various clauses of the constitution *itself (which contemplates a trial -• by jury only in the case of an offence committed within a county of the state), the contemporaneous construction of the legislature of Georgia, the corroborative example of other states, whose constitutions contain the same provisions, and even the authoritative recommendations of congress, with the recognitions of the treaty of peace; demonstrate the legitimacy and validity of the acts of attainder and confiscation, which naturally grew out of the revolutionary war. 6th. Attainder and confiscation acts are most common in England ; yet, generally speaking, the judicial power and the legislative power, are there kept separate and distinct. (Blackstone, Woode-son, Montesquieu, De Lolme.) They are the exercise of a constitutional power of legislation. (2 Wood. 621, 647.) And to exercise a power, not within the scope of the judicial authority, cannot be confounding the distinct branches of the government. On the 13th of February 1800, the judges (except the Chief Justice, who had decided the cause in the circuit court) delivered their opinions, seriatim, in substance, as follows: Washington, Justice.—The constitution of Georgia does not expressly interdict the passing of an act of attainder and confiscation, by the authority of the legislature. Is such an act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication ? Where an offence is not committed within some county of the state, the constitution makes no provision for a trial, neither as to the place, nor as to the manner. Is such an offence (perhaps, the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary ? If the plaintiff in error had shown, that the offence with which he was charged, had been committed in any county of Georgia, he might have raised the question of conflict and collision, between the constitution and the law : but as that fact does not appear, there is no ground on which I could be prepared to say, that the law is void. The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated. Chase, Justice.—I agree, for the reason which has been assigned, to affirm the judgment. Before the plaintiff in error could claim the benefit of a trial by jury, under the constitution, it was, at least, incumbent upon him to show, that the offence charged was committed in some county of Georgia, in which case alone, the constitution provides for the trial. But even if he had established that fact, I should not have thought the law a violation of the constitution. The general principles contained in the constitution are not to be regarded as rules to fetter and control; but as matter merely declaratory and directory: for even in the constitution .16 1800] OF THE UNITED STATES. *19' Cooper v. Telfair. *itself, we may trace repeated departures from the theoretical doctrine, that the legislative, executive and judicial powers should be kept separate and distinct. There is, likewise, a material difference between laws passed by the individual states, during the revolution, and laws passed subsequently to the organization of the federal constitution. Few of the revolutionary acts would stand the rigorous tests now applied: and although it is alleged, that all acts of the legislature, in direct opposition to the prohibitions of the constitution, would be void ; yet, it still remains a question, where the power resides to declare it void? It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the judges have, individually, in the circuits, decided, that the supreme court can declare an act of congress to be unconstitutional, and therefore, invalid ; but there is no adjudication of the supreme court itself upon the point. I concur, however, in the general sentiment, with reference to the period, when the existing constitution came into operation ; but whether the power under the existing constitution, can be employed to invalidate laws previously enacted, is a very different question, turning upon very different principles ; and with respect to which, I abstain from giving an opinion ; since, on other ground, I am satisfied with the correctness of the judgment of the circuit court. Paterson, Justice.—I consider it a sound political proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes. The legislative power of Georgia, though it is in some respects restricted and qualified, is not defined by the constitution of the state. Had, then, the legislature power to punish its citizens, who had joined the enemy, and could not be punished by the ordinary course of law? It is denied, because it would be an exercise of judicial authority. But the power of confiscation and banishment does not belong to the judicial authority, whose process could not reach the offenders : and yet, it is a power that grows out of the very nature of the social compact, which must reside somewhere, and which is so inherent in the legislature, that it cannot be divested or transferred, without an express provision of the constitution. The constitutions of several of the other states of the Union, contain the same general principles and restrictions ; but it never was imagined, that they applied to a case like the present; and to authorize this court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative application. *Cushing, Justice.—Although I am of opinion, that this court has r*9n the same power that a court of the state of Georgia would possess, to declare the law void, I do not think, that the occasion would warrant an exercise of the power. The right to confiscate and banish, in the case of an offending citizen, must belong to every government. It is not within the judicial power, as created and regulated by the constitution of Georgia: and it, naturally, as well as tacitly, belongs to the legislature. By the Court.—Let the judgment be affirmed, with costs» 4 Dall.—2 20 SUPREME COURT [Feb’y Williamson-, Plaintiff in error, v. Kinoaid. Jurisdiction in error.—Amount in controversy.—Supersedeas. If the value of the matter in dispute do not appear on the record, it may be shown by affidavit; but in such a case, the writ of error is not a supersedeas.1 » Error from the Circuit Court of Georgia. It appeared from the record, that “Marian Kincaid., of Great Britain, widow, demanded against John G. Williamson, the one-third of 300 acres of land, &c., in Chatham county, as dower. That the tenant pleaded : 1st. The act of Georgia (passed the 1st of March 1778) attainting G. Kincaid (the demandant’s late husband), forfeiting his estate, and vesting it in Georgia; without office. 2d. The act of the 4th of May 1782, banishing G. Kincaid, and confiscating his estate. 3d. The appropriation and sale of the lands in question, by virtue of the said attainder and confiscation, before the 3d of September 1783 (the date of the definitive treaty of peace), and before G. Kincaid’s death. 4th. The alienage of the demandant (who was resident abroad on the 4th of July 1776 and ever since), and therefore, incapable of holding lands in Georgia. That the demandant replied, that she and her husband were inhabitants of Georgia, on the 19th of April 1775, then under the dominion of Great Britain ; that her husband continued a subject of Great Britain, and never owed allegiance to Georgia, nor was ever convicted, by any lawful authority, of any crime against the state. That the tenant demurred to the replication, the demandant joined in demurrer, and judgment was pronounced by the circuit court (composed of Washington, Justice, and Clay, District Judge), for the demandant.” On this judgment, the writ of error was brought, and the following errors assigned. 1. The general errors. 2. The attainder of G. Kincaid and the forfeiture and sale of his estate ; so no right to dower accrued ; and no land out of which it could be enjoyed. 3. The alienage of the widow, on the 4th of July 1776, and ever since, by which she was incapable to take and hold real estate in Georgia. The principal question (whether an alien British subject was entitled, under the treaty of peace, to claim and hold lands in Mower) was not •* discussed, as the judgment was reversed, for want of a sufficient description of the parties to the suit, on the authority of Bingham v. Cabot, 3 Dall. 382, and Turner v. iBank of North America {ante, p. 8). But an important point of practice was previously settled, relative to the mode of ascertaining the value of the matter in dispute, in an action like the present. For the plaintiff in error, it was admitted, in answer to an objection, that the value of the matter in dispute did not appear upon the record ; but it was urged that, from the nature of the subject, the demand of the plaintiff could not ascertain it; nor from the nature of the suit (like a case of ejectment, where the damages are only given for the ouster) could it be fixed by the finding of a jury, on the judgment of the court. 3 Bl. Com. 35-6. As, therefore, there was no act of congress, nor any rule of the court, prescribing a mode to ascertain, in such cases, the value in dispute, that the party may have the benefit of writ of error, it was proposed to continue the cause. 18 1 Course v. Stead, post, p. 22. 1800] OF THE UNITED STATES. 21 Rutherford v. Fisher. to afford an opportunity to satisfy the court, by affidavits, of the actual value of the property. By the Court.—Be it so : let the value of the matter in dispute be ascertained by affidavits, to be taken on ten days’ notice to the demandant, or her counsel, in Georgia. But, consequently, the writ of error is not to be a supersedeas. Ingersoll and Dallas, for the plaintiff in error. E. Tilghman, for the defendant in error. Blair et al., Plaintiffs in error, v. Miller et al. Practice. A writ of error, not returned at the term to which it is returnable, is a nullity. Writ of error from the Circuit Court of Virginia. The judgment was rendered in the circuit court, on the 28th of May 1799, and a writ of error issued, returnable to August term 1799 ; but the record was not transmitted, nor the writ returned into the office of the clerk of the supreme court, until the 4th of February 1800. Swift objected to the acceptance and return of the record and writ: And— By the Court.—The writ has become a nullity, because it was not returned at the proper term. It cannot, of course, be a legal instrument, to bring the record of the circuit court before us for revision, (a) *Rutherford et al., Plaintiffs in error, v. Fisher et al. [*22 Error. A writ of error will only lie, in the case of a final judgment. Error from the Circuit Court of New Jersey, sitting in equity. It appeared, that the defendants in the circuit court had pleaded the statute of limitations to the bill of the complainants ; and that the plea was overruled, and the defendants ordered to answer the bill. On this decree, the present writ of error was sued out, and Stockton (of New Jersey) moved to quash the writ, because it was not a final decree, upon which alone a writ of error would lie. (1 U. S. Stat. 84, § 22.) E. Tilghman, for the plaintiff in error, acknowledged the force of the words, “ final judgment,” in the act of congress ; and submitted the case, without argument. Chase, Justice.—In England, a writ of error may be brought upon an interlocutory decree or order; and until a decision is obtained upon the writ, the proceedings of the court below are stayed. But here, the words of the act, which allow a writ of error, allow it only in the case of a final judgment. By the Court.—The writ must be quashed, with costs. (a) See Course v. Stead, post, p. 22. 19 22 SUPREME COURT [Feb’y The Charles Carter. Blaine v. The Ship Charles Carter et al. Error. Whatever may be the original nature of the suit in a circuit court, it cannot be removed into the supreme court, except by writ of error. This was an appeal from the Circuit Court of Virginia ; and the preliminary question discussed was, whether such a process could be sustained? After argument— The Court decided, that the removal of suits, from the circuit court into the supreme court, must be by writ of error, in every case, whatever maybe the original nature of the suits? Course et al. v. Stead and wife, et al. Amendment.—Jurisdiction in error.—Averment of dtizensJnp.—^-Judidal notice. The teste of a writ of error is amendable, of course. The value of the land in controversy may be shown by affidavit, to sustain the writ of error, if it do not appear on the record. If a new party and subject-matter be brought before the court, by supplemental bill, it must show that the court has jurisdiction, by reason of the citizenship of the parties to such supplemental bill. The federal courts will take judidial notice, without proof, of the laws of the sever«} states. Error from the Circuit Court of the Georgia district, sitting in equity. On the record, it appeared, that upon the 5th of May 1795, an order has been made, in the case of Stead et al., executors of Stead, v. Telfair et al., the legal representatives of Rae & Somerville,(a) “ that 36342. 14s. ^ld. sterling, with interest at 5 per cent, from the 1st of January 1774, to the 5th of May 1795, deducting interest from the 19th of April 1775, until the 3d of September 1783, be paid to the complainants in that suit, with 5 per cent. * _ on the amount of principal and interest, *for making the remittance J to Great Britain. That the partnership property of Rae & Somerville, admitted by the defendants to be in their hands, be first applied to the payment of the complainants. That the lands belonging to J. Rae, or J. Somerville, deceased, referred to in the answers of the several defendants, and the title-deeds of which they admitted to be in their possession, be sold by the marshal, and the proceeds be applied to satisfy the decree ; the deeds to be deposited with the clerk in three months.” On the 15th of November 1796, a second order was made by consent (Paterson, Justice, presiding), upon the report of the clerk, that, on the 4th of January 1796, the reremained due to the complainants $11,196.77; “that the (a) The order was made when Blair, Justice, presided. The deduction of interest during the war (this being a British debt) has not received the sanction of all the fed eral judges. See 2 Dall. 104, in note. 1 An appeal is allowed in cases of equity, admiralty and prize, by act of 3d March 1803 § 2 (2 U. S. Stat. 244); and R. S. § 692. • 20 1800] OF THE UNITED STATES. 23 Course v. Stead. partnership property of Rae & Somerville, in the hands of Telfair, be sold, and the bonds, &c., delivered over, under a general assignment. That if these assets are not sufficient to pay the debt, the remainder of Somerville’s property be sold; and after paying a prior judgment, shall be applied to the debt of the complainants. That a bond, admitted by W. Stephens, one of the defendants, to be in his hands, given by R. Whitfield & Co. to J. Rae, senior, be delivered to the complainants. That certain negroes, in the custody of S. & R. Hammond and J. Habersham, be sold, and applied to the payment of the complainants’ debt.” On the 2d of May 1797, Elizabeth Course, executrix of Daniel .Course was made a defendant, upon motion of the solicitor for the complainants ; and on the 2d of April 1798, the supplemental bill was filed, which gave rise to the present writ of error, and on which a subpoena issued only against Elizabeth Course. This bill set forth the original bill of Stead et al. v. Telfair et al.; the orders and decrees above stated ; and the outstanding balance on the 4th of April 1798, amounting to $8479.58. It then alleged, “ that J. Rae, senior, was seised, in his lifetime, of a tract of 450 acres of land, which was subject to the decree in favor of the complainants ; and that Elizabeth Course held the said tract of land unjustly, and without title. And it concluded with praying a discovery of the title, and surrender of the premises in satisfaction of the decree ; and that the other defendants may disclose assets, &c.” On the 3d of April 1799, Elizabeth Course filed an answer to the supplemental bill, in which she set forth, “ that she found among her late husband’s papers a deed of the 5th of May 1792, executed by F. Courvoise, taxrcollector of Chatham county, to him, as purchaser at public auction, of the said tract of land, for 1284 19s. 4) Debt. Plea, payment, with leave to give the will of testatrix in evidence. The case was simply this : Mrs. Massey, the testatrix, was in a low state of health, for some time before her death; the defendant took the charge of her affairs, and had some accounts against her ; but he borrowed 150?. from her, for which he gave a bond, payable in one year, with interest. On the 5th of June 1784, she made her will, which was proved on the 21st of June, containing, among other things, this bequest : “I give to T. Learning, in consideration of his many services to me, 200?. in real specie ; provided, he brings ne account against me and my estate ; and if he happen to bring any account against me, or my estate, then this bequest to be void with a devise over of the testatrix’s estate. The legacy was paid to T. Learning ; the present action was brought upon his bond; and the question of law arose, whether the bequest operated as a release ? The plaintiff’s counsel suggested, that they were ready to prove, that there was a deficiency of assets to pay debts. Upon this suggestion, it was agreed, that a verdict be given for the plaintiff, subject to the opinion of the court, whether the bequest was an extinguishment of the debt ? If it was so considered, then the plaintiff shall be at liberty to prove a deficiency of assets, for the payment of debts. After depending for a great period on the docket, the suit was, finally, marked “ not to be brought forward.” Tilghman and Levy, for the plaintiff. Sergeant, for the defendant. (a) Tried at nisi prius, Philadelphia county, in May 1792. (S) “There can be no pretence to say, because the testator gave a legacy of 500?. to the defendant Wood, therefore this was an argument, or evidence, that the testator intended to remit the former debt; but if a man gives a legacy to his creditor to the amount of the debt, this has been construed a payment or satisfaction of the debt.” Jeffs ®. Wood, 2 P. Wms. 132.1 1A legacy to a debtor is not, per se, a discharge of the debt; but it may be shown to have been so intended, by extrinsic proof. Zeigler v. Eckert, 6 Penn. St. 13 ; Strong v. Bass, 85 Id. 833. And see Bichets v. Livingston, 2 Johns. Cas. 97; Smith v. Kearney, 2 Barb. Ch. 533; Stagg v. Beekman, 2 Edw. Ch. 89 ; Clark v. Bogardus, Id. 387; Negley’s Estate, 25 Pitts. L. J. 99. 107 ♦124 SUPREME COURT [Sept. ♦SEPTEMBER TERM, 1792. Vaughan et al., Assignees of Nancarrow, v. Blanchard et al. (a) Nonsuit.—Landlord and tenant. The court will not direct a nonsuit, for want of proof, by the plaintiffs, of a material fact, where they have offered some evidence of it.1 If a landlord interrupt the tenant’s enjoyment of the demised premises, the rent is suspended, unless it be shown that such an interruption was in pursuance of a reserved privilege.8 Debt, for rent. The facts were these : Nancarrow advertised to let the room and front cellar of a house, which he rented from Pemberton; and the defendants agreed to take them at 130?. per annum, commencing the 27 th of July 1784, and continuing until the end of Nancarrow’s term in the house. A lease in writing was drawn, but never executed, though the defendants entered into possession of the premises, made some repairs, and paid a part of the rent. Soon, however, after the defendants had taken possession of the room and cellar, it was again advertised to be let, with directions to apply to them for particulars; and, accordingly, they let the premises to one Dixon ; Dixon again let them to Fox, the agent of a merchant of the name of Leuffer; and Leuffer deposited a considerable quantity of merchandise in the cellar. Nancarrow now claimed a right to pass through the front cellar, into the back cellar ; Leuffer objected to it; but, upon Nancarrow’s persevering, he took another house, at the end of Dixon’s time (six or nine months), to which he removed his goods. Leuffer’s agent offered to pay his rent to Nancarrow, but Nancarrow refused to accept it, unless the receipt was taken, as from Blanchard. Under these circumstances, the present action was brought, to recover a half year’s rent, on a demise (as stated in the declaration) to hold from the 27th of July 1784, until the expiration of Nancarrow’s term in the premises, with an averment that Nancarrow had a lease from Pemberton. Blanchard then instituted an action against Fox, to whom the premises were underlet, for Leuffer; but declaring that he would only prosecute his claim, if he was compelled to pay the plaintiffs in the present suit. , *1. Sergeant and Ingersoll, for the defendants, moved to nonsuit the plaintiffs, because there was no proof of a lease from Pemberton to Nancarrow, as the declaration averred. The only ground of recovery in this action, is, either that the defendants actually occupied the premises ; or that the plaintiffs, in pursuance of the bargain, had vested them with a right of occupancy. Now, the lease of the defendants was made dependent upon the lease of Pemberton : and non constat that such a lease existed, as it has not been produced, nor any regular account of it. (Doug. 642-3.) But— By the Court.—Whether it is necessary, or not, in this action, to prove (a) s. c. 1 Yeates 175. 1 Stout v. Russel, 2 Yeates 334; Morse v. Bogert, 4 Den. 108; Labas v. Copton, 4 N. Y. 647; Colt v. Sixth Avenue Railroad Co., 49 Id. 671. 8 Garrett v. Cummina, 2 Phila. 207 ; Doran v. Chase, 2 W. N. 0. 609. 108 1792] OF PENNSYLVANIA. ' 125 Commonwealth v. Biron. the existence of a lease from Pemberton, there is no ground for a nonsuit. The plaintiffs have offered some evidence to show that Nancarrow possessed a term in the house ; and of the operation and effect of that evidence, however it applies to the issue, the jury must judge and decide. II. In the charge to the jury, it was stated by The Court, that the cause depends upon a single fact, whether Nancarrow had a right of passage through the front, into the back cellar ? The affirmative, it was incumbent on the plaintiffs to prove ; but they had not proved it, either by written or parol evidence. Then, the law declares, that such an interruption in the enjoyment of the premises demised, will suspend the rent. Verdict for the defendants. Commonwealth v. Margaret Biron. Homicide.—Manslaughter. Indictment for the murder of Jane McGlaughlin. It appeared in evidence, on the trial, that Hugh McGlaughlin, the husband of the deceased, rented from the prisoner, a part of the house in which she lived; that on the 10th of June 1792, while it rained hard, a noise was heard at the house, and the deceased was attempting to get in ; that she said, “ You whore, let me come in ;” and the prisoner said, “ You whore, you shan’t;” that the deceased appeared to be then in liquor, though by all accounts, she was a very quiet woman ; that the prisoner opened the door, and she and the deceased began to struggle, when the former pushed the latter down the steps, and her head struck the wall; that the deceased seemed to be bent by her fall, and the prisoner came out of the house, saying, “ Ah ! this is the way I am troubled with this kind of people ! her husband has just left her in this situation;” that the witness observed, “ You pushed her down,” to which she answered, “Idid not;” but after the deceased was carried into the house, she acknowledged that she had done it, and said she was in a great passion ; and that the deceased and the prisoner used before *to quarrel, but had not been seen to strike each other. On examining the deceased, Dr. ■-Hutchinson said, that he found considerable injury done to the bone on one side of the head ; but that the wound was not necessarily mortal; and he thought, from appearances, that the deceased must have been intoxicated, at the time of her fall. By the Court.—The circumstances present to the consideration of the jury, a case of atrocious manslaughter ; but in our opinion, no more. Verdict, guilty of manslaughter, but not guilty of murder, (a) (a) The indictment was tried in a court of oyer and terminer, in Philadelphia county, on the 19th of November 1792. 109 *127 SUPREME COURT [April ♦APRIL TERM, 1793. Bank of North America v. Pettit. Notice of nonpayment. Notice of non-payment of a promissory note by the maker, must be given by the holder to the indorser, with a demand of payment from him, within a reasonable time. What constitutes a notice within a reasonable time, still remains, in Pennsylvania, a fact for the jury to determine. Case against the payee and indorser of a promissory note, made by George Henry, for $1100, payable in 45 days, and dated the 26th of March 1785. The defence was, that due notice had not been given of the maker’s non-payment of the note ; and the following evidence was produced pro and con. For the plaintiff, the runner of the bank stated, that he believed he gave the maker notice when the note became due, as it was his custom to do ; that it was also his custom, at the expiration of the three days’ grace, to give the indorser notice; and he conceived, he must have called on the defendant on the evening of the last day of grace ; but if not then, he was very clear, he called the next day, or the second succeeding day, at farthest ; that he thinks he spoke to the defendant’s son, and supposes he mentioned his business ; that his reason for thinking he gave notice is, that he has a memorandum of Henry’s notes lying over ; and the president of the bank was very particular about them, and the indorsers; that when he called at the defendant’s counting-house, he gave verbal notice, that the indorsement was unpaid, and the person he saw, told him that he would inform the defendant of it; that it was not then a practice to leave written notice ; and finally, that he was not doubtful, but very clear, that he gave the notice. For the defendant, his clerk declared that it was usual to leave notice of the protest of notes in writing; and that he did not recollect that either written or verbal notice was given in the present case. The defendant’s son declared, that he had no recollection of receiving any notice ; but, on the *19R1 contrary, he remembered, *that, upon making an estimate of his J father’s indorsements at the bank, the cashier said they amounted to $2300 ; and this being denied, Henry’s note was produced ; which was the first intimation that the son ever had of its existence, or of its being protested. It was argued by Tilghman and Lewis, for the plaintiff, that although the cause turned upon a mere matter of fact; and that fact being established, the decision must be governed by the principles of the mercantile law, which, generally considered, are the same throughout the mercantile world ; yet, that there are special usages, arising from local circumstances, or municipal policy, that must prevail, in modifying the operation of the general law of merchants. Thus, the general law of merchants declares, that the acceptor of a bill of exchange is bound by his acceptance ; but how far he is bound, varies at different places. (Burrow n. Jemino, 2 Strange 733.) So, notice of the protest of a bill of exchange must be given, upon the principles of the general law; but there is a different usage, in different places, 110 1793J ’ OF PENNSYLVANIA. 128 Bank of North America v. Pettit. as to the strictness of the time, within which the notice must be given. The statute of Anne introduced the negotiable character of promissory notes, and the process of declaring upon them as instruments. The practice of giving notice, in the case of promissory notes, soon followed in England, though the statute speaks nothing of the time ; but, at first, a great latitude was allowed ; and it is only, step by step, that the present degree of strictness on the subject has been there established. In Pennsylvania, however, promissory notes were scarcely to be regarded as a currency, before the revolution; insomuch that it is difficult to trace a suit on the records of the courts, by the indorsee against the indorser. The act of assembly of 1715, which gave the indorsee an action against the maker, in his own name, made no positive provision on the subject of notice ; and the English practice was not adopted under the act. Punctuality, indeed, in paying such engagements, was rare, and almost impracticable, from the state of the country. The Bank of North America began the rule of punctuality ; and originated the usage of notice ; and upon that usage, a period of six, seven or eight days has been allowed for giving the notice. What, then, is the evidence of a demand of payment from the indorser, in a reasonable time, is the only question. The runner of the bank gave notice of the protest; and this, by the common understanding of our merchants, amounts to information, that the holder of the note looks to the indorser for satisfaction. The cases cited for the plaintiff were 2 Str. 1175, 1248 ; Ld. Raym. 744 ; Robertson v. Vogle, 1 Dall. 252 ; Bank n. McKnight, Ibid. 158. It was argued by Ingersoll and Sergeant, for the defendant, that the holder of a dishonored note, must conform to the law-merchant, *which r*^29 requires notice to be given to the indorser ; as even the declaration shows, by the averment that notice was given: and they contended, that the notice in this case (if given at all) not being given to the defendant on the very next day, after the expiration of the days of grace ; and not being accompanied with an explicit demand for payment, was not a sufficient notice, according to the law of merchants ; which being, in this respect, founded on general principles of reason and equity (to prevent the indorser from suffering by the indulgence or negligence of the holder), was as applicable in Pennsylvania, as in any other country. They cited 1 Wils. 47 ; 2 Bl. Rep. 747 ; Doug. 650 ; 2 T. R. 713; 1 Dall. 252 ; Bull. N. P. 274-6 ; 1 Str. 508. By the Court.—The defence is want of notice of the protest of the note in question, within a reasonable time. The law in England is very strict upon this subject. Before any tatutes existed there, to render promissory notes negotiable, such notes were often made ; but they were only regarded as evidence of a debt, and could not, as instruments, ae declared upon in an action at law, until the provision was made in the statutes of Wm. III. and Anne. It is not material, however, to review the history of this paper medium, either here or in England ; since it is clear, that in both countries, at this day, the law requires, that notice must be given by the holder, to the indorser of a promissory note, with a demand of payment, in a reasonable time after the note is dishonored by the maker, (a) What con- (a) “Death, bankruptcy, notorious insolvency, or the drawer’s being in prison, con- 111 129 SUPREME COURT [April Stansbury v. Marks. stitutes a reasonable time, was formerly considered, by the English courts, in most cases, as a matter of fact, for the decision of a jury : and since it has been deemed by those courts, a matter of law, they have held, that if the parties live in the same town, an allowance of even a single day to the * holder is quite sufficient. But in Pennsylvania, the question of reasonable notice still remains a fact for the jury to determine. Before the institution of the Bank of North America, promissory notes were few ; there was no time fixed for giving notice ; and two or three months have often elapsed, before it was given. The bank had, however, a right to introduce new rules, for transacting business with their customers ; and those rules being understood and enforced, formed a law of the contract, binding on both parties. Indeed, the punctuality, and other beneficial consequences, flowing from those rules, seem to have given them a more general operation and force ; so as to constitute a general usage, and not merely a usage of the bank. But notwithstanding the necessity of giving notice exists, on general principles, as well as upon the usage, its reasonableness, we repeat, still depends, here, upon the verdict of the jury. As soon as we can, consistently with the state of the country, its roads, and its posts, it will be wise to adopt the English law upon the *subject, for the sake of certainty J and uniformity, in the administration of justice : and perhaps (such is the rapid progress of population and public improvement), the court may, in future, incline to adopt it. (a) Stansbury v. Marks. • Defence of infancy, In assumpsit, infancy can be given in evidence, under the general issue, but the jury may decide, whether it is a sufficient discharge. Case. Plea, non assumpsit. The defendant offered to give infancy in evidence, on this plea; to which the plaintiff objected. But— By the Court.—The evidence is clearly admissible. Under the general issue, however, the jury may decide, whether the evidence is sufficient to discharge him, or not. The position is generally true, that an infant can only bind himself for necessaries ; yet, in the court of chancery, cases occur, in which a payment would be decreed, contrary to the strict rule of the common law. In this form of action, equity is the principal consideration ; and from necessity, the courts of law, in Pennsylvania, adopt the principles of the English courts of chancery. stitute no excuses, either at law or equity; because many means may remain with him of obtaining payment, by the assistance of friends or otherwise, of which it is reasonable the indorser should have an opportunity of availing himself; and it is not competent to the holder to show, that delay in giving notice, has not, in fact, been preju- J diciai.” Gibbs v. Cannon, 9 S. & R. 201. (a) As to what is sufficient notice of non-payment of a promissory note, and when such notice must be given, see Steinmetz®. Curry, 1 Dall. 234-5 n.; Robertson ®. Vogle, Id. 252-6 n.; Ball ®. Dennison, post, p. 163; Smith ®. Hawthorn, 8 Rawle 855. Verbal notice is sufficient, and a protest, with notice thereof, is not necessary. Rohm v. Phila-delchia Bank, 1 Rawle 335. . 112/ 1793] OF PENNSYLVANIA. 130 Jacob Conrad v. Conrad et al., Administrators of G. Conrad. Assumpsit for work and services. Where an illegitimate son works for his father, on an express promise, that he should be put on a footing with the legitimate children, he may recover the value of his services, to that extent, from the administrators. Assumpsit, upon a special agreement of intestate, that if plaintiff would live with him, and work his plantation (consisting of 260 acres), until plaintiff was of age, intestate would give him 100 acres of it; he did so remain, but was maintained, &c., by intestate: intestate had three legitimate children (two sons and a daughter), and three illegitimate (plaintiff and two daughters) ; he had once intimated an intention of putting plaintiff on a footing with his own children. Held, that, considering the circumstances of the case, it would be excessive, to give the full value of the land in damages; that the jury might depart from that standard, and that the intimation of intestate, that he would give plaintiff a child’s share of his estate, might be construed as explanatory of his former promise. This was an action on the case, brought by Jacob Conrad, the natural son of George Conrad, against the administrators of his father, in which a declaration was filed, containing two counts : 1st. Upon a special agreement that if the plaintiff would live with the intestate, and work his plantation for six years, the intestate would give and convey to him 100 acres of the land. 2d. Upon a quantum meruit, íqt work and service. Pleas, non assumpsit, and the statute of limitations. Upon the trial of the cause, it was proved, that Jacob Conrad having expressed an intention to leave his father’s, and learn a trade, the father said to him, with some solicitude, “ stay and work the plantation, until you are of age, and I will give you a hundred acres of it.” It also appeared, that Jacob did remain with his father, and worked the plantation ably and diligently ; that the father had three legitimate children, two sons and. a daughter, and three illegitimate children, Jacob and two daughters ; that the two legitimate sons worked with Jacob on the plantation; that the father once intimated an intention of putting Jacob on footing with his other children; that the plantation consisted of about 260 acres, and was appraised at 750?.; and that Jacob Conrad was well maintained, clothed and schooled, while he remained with his father. *For the defendants, it was urged, that the action was a novelty ; that on general principles, the service of a minor child (whether legi- *• timate or not) was due to the parent, in consideration of his maintenance and education ; and that the supposed special contract was unreasonable, and, consequently, void. (1 Black. Com. 449, 453, 450 ; Yelv. 17 ; 2 Str. 728 ; Doct. and Stud. 211, 212.) If, therefore, the plaintiff is entitled to recover anything, it must be on the count for a quantum meruit, when, considering him as a servant, the expense incurred for his clothing and education must be set off against a claim for wages. For the plaintiff, it was answered, that the contract was expressly proved, upon a good and valuable consideration, performed by the plaintiff ; and that considering the rights of a bastard in relation to the father’s estate, to be only such as he could himself acquire, the court would be anxious to support so meritorious a claim. (1 Black. Com. 459.) By the Court.—This is an action to recover damages, for the nonconveyance of 100 acres of land, agreeable to an express promise of the intestate ; with respect to which, the evidence certainly supports the declara- 4 Dall.—8 113 131 SUPREME COURT. [April Edgar v. Robinson. tion. Considering, however, the relation of the parties, the other parental obligations of the intestate, and the extent of the property, it would seem rather excessive to give the full value of the land in damages, for a breach of the promise. Is there, then, anything in the evidence, that will warrant the jury in departing from that strict standard of the damages ? We think, there is. The father’s intimation, that he would place Jacob on a footing with his other children, may be fairly construed as a promise (explanatory of what he had before said), that he would give him a child’s share of the estate. If the jury adopt the construction, however, the other illegitimate children must be put out of the calculation. On this principle, one-fifth would entitle him to a verdict for 150?. As to interest, it will depend upon the discretion of the jury: but if the eldest son took the estate, at the valuation, he must have paid interest to the younger children ; and consequently, on the ground of equality, it would be right to allow it to the plaintiff. Verdict for the plaintiff, 1451 damages, (a) C. Hall, C. Smith and Hartley, for the plaintiff. J. Smith, Duncan and Tilghman, for the defendant. *132] *Edgar’s Lessee v. James Robinson-, Jr., and William Robinson. Parol evidence. Parol evidence of a deed is admissible, without a notice to produce it, as against one, not a party to the deed; nor can he be compelled to produce it, if he is merely a witness thereto. Ejectment, tried at York Town, in which defence was taken for one-third part of the premises. The title of the lessor of the plaintiff was deduced from a patent, dated the 10th of June 1734, to Thomas Lenton, who conveyed, on the 8th of January 1741, to James Rowland, and James Rowland afterwards conveyed to Robert Rowland, who devised the premises to his sons James, John and Matthew, by a will dated the 9th of January 1799. A sheriff’s deed was then read, dated the 29th of April 1785, which recited a judgment and execution, at the suit of Andrew Leiper against Matthew Johnston and James Robinson for 30l.; and a sale of one-third part of the land, as the estate of James Robinson, to Samuel Edgar (the lessor of the plaintiff) for 40?. And parol evidence was offered to show, that James Rowland had conveyed one-third of the premises to James Robinson, senior (uncle of the defendants), who was the defendant in a former ejectment; and who was in possession of the land at the time of the judgment and sale. It was, thereupon, objected, that no parol proof could be given of a conveyance of real estate ; nor, generally, of any instrument, without previous notice to produce it. But— By the Court.—The present defendant, James Robinson, Jr., is net the party to the alleged deed ; and therefore, no notice could be gRen to him, (a) This cause was tried at York Town nisi prius, before Shippen and Bradford, Justices, in May 1793. 114 1793] OF PENNSYLVANIA. 132 Zantzinger v. Ketch. within the general rule, for the production of deeds . nor, if he stands merely in the character of a witness to the deed, is he compellable to pro* duce it. There is, therefore, no way of getting at the title, but the one proposed, if the defendant in an action chooses, under such circumstances, to conceal the muniments of the estate. The witnesses were, accordingly, examined; and the plaintiff obtained a verdict, conformable to the charge of the court.1 Zantzinger v. Ketch. Parol evidence. Parol evidence was admitted to explain the meaning of the words “ the deed of conveyance ” in articles of agreement, as meaning a deed conveying the land, free from all incumbrances.(a) This was an action of debt, on articles of agreement to pay 135?., in two instalments, for lands bought by the defendant from the plaintiff; and in the articles it was stipulated, that “ the deed of conveyance shall be made to the said Michael Ketch, at the first payment.” The defendant offered the parol testimony of a witness, who was present at the execution of the articles, to show that by the expression, “ the deed of conveyance,” the parties meant and understood, a “ deed conveying the land, free of all incumbrances.” *2 Ves. 299 ; Hurst v. Fell, in the supreme court of Pennsylvania. L The evidence was opposed, as tending to contradict the deed, whose expressions were clear, and did not require explanation. The Court, however, upon the authority of Hurst v. Fell, admitted the evidence, though with great reluctance; and declaring that they would reserve the point. But as the verdict was for the full amount of the plaintiff’s demand, the question was not revived. (6) C. Smith, for the plaintiff. Hamilton, for the defendant. (a) See on the admissibility of parol evidence, in variance of a written contract, Thomson ®. White, 1 Dall. 424, and the notes; O’Hara ®. Hall, 4 Id. 340; Christine ®. Whitehill, 16 S. & R. 98; Huitz ®. Wright, 16 Id. 345; Chess v. Chess, IP. & W. 32; Ingham ®. Mason, Id. 389. (&) This cause was tried at Carlisle nisi prius, on the 15th of May 1793, before Shippen and Bradford, Justices. 1 Of this case, Chief Justice Tilghman says, cumstances of the case, under which it mi"ht in Little v. Delancey, 5 Binn. 171: “ The re- have been proper to admit parol evidence, al-port is short, and I am satisfied the reporter was though it does not clearly appear what those not present at the trial, or the case would have circumstances were; at all events, it is not a been stated with more clearness and precision;” case which can be set up as a general rule.” and after analyzing the facts as above stated, And Judge Yeates says (p. 273); “ There he continues, “ upon the whole, there appears must certainly have been other facts, upon to have been something particular in the cir- which the judgment of the court turned.” 115 133 SUPREME COURT [April Eddoweb et al, v. Thomas Nikll. Letter of credit.—Presumption of payment. J hi order to render a letter of credit obligatory, it is not necessary, that it should be answered.1 A lapse of nineteen years, without notice of a default in payment, by the principal, is not, considering the circumstances of this case, such gross negligence, as to discharge the surety , and from the nature of this contract, such a lapse of time will not warrant a presumption of payment.2 This was an action on the case, for goods sold and delivered to William Niell, upon a special assumpsit by the defendant, Thomas Niell, to guaranty the payment of the price: pleas, 1st, non assumpsit, on which issue was joined ; and 2d, the statute of limitations, to which, resident .beyond seas, was replied, &c. The plaintiffs were British merchants, from whom William Niell, a trader in Baltimore, was accustomed to import goods. On the 14th of January 1771, his brother, the defendant, wrote a letter to them, in which he said, “ that to strengthen his brother’s credit, he would guaranty all his dealings with their house. ” Several shipments of goods were made, both before and after the receipt of this letter ; and William Niell continued to make payments on account, until the year 1775, when the revolutionary war began its agitations ; and all commercial and amicable intercourse, between Great Britain and the United States was suspended, until the peace of 1783. In the year 1784, the plaintiffs sent a power of attorney to collect the debts due to them here ; their agent applied to William Niell, who acknowledged the justice of the debt; but claimed an abatement of eight years’ interest, on account of the war ; and a further credit upon giving his bond for the amount; which the agent refused. In 1785, William Niell died, leaving the defendant his executor ; to whom, in that character, the agent of the plaintiffs applied for payment; and he answered, by admitting the claim, and recommending a suit against the estate. No demand, however, was made, on the ground of the defendant’s guarantee, until about the time of commencing the present action, in January 1790. *1 ^41 *On ^ese general facts, plaintiffs counsel contended : 1st. That J the demand was fair and legal, founded upon an unequivocal letter of credit, applicable, in its terms and meaning, as well to shipments made before, as after, it was received. 2d. That it was not necessary, to render the letter binding on the defendant, that the plaintiffs should answer it; nor that they should give notice to him of a default (as in the case of bills of exchange), at any period of the transaction. 3d. That there was no express waiver of the guarantee ; and nothing can be implied, even in favor of a 1 s. p. Smith v. Dann, 6 Hill 643; Union Bank v. Coster, 3 N. Y. 203. But in Kay v. Allen, 9 Penn. St. 320, it was decided, that a letter of credit does not create a liability on the part of the writer, unless he has notice of acceptance, or the guarantee and credit given were contemporaneous. See also, to the same point, Kellogg v. Stockton, 29 Penn. St. 460; Bay v. Thompson, 1 Pears. 661; Douglass v. Reynolds, 7 Pet. 113; s. c. 12 Id. 497; Lee v. Dick, 10 Id. 482; Adams v., Jones, 12 Id. 207; Wildes v. Savage, 1 Story 22. 2 A continuing guarantor is not discharged, by the mere neglect of the creditor to enforce payment, in the absence of connivance, or of negligence so gross as to amount to fraud. McKechnie v. Ward, 68 N. Y. 541. 116 1793] OF PENNSYLVANIA. 134 Eddowes v. Niell. surety, since no new security was taken ; nor any negligence shown, in omitting to prosecute the principal, upon the demand of the surety. For the defendant, it was urged: 1st. That the demand was a harsh and stale one ; founded on a letter, which had not, in fact, created any additional confidence or credit ; the receipt of which had never been acknowledged ; and the responsibility of which had never been suggested, for more than nineteen years. 2d. That the guarantee ought not to receive an indefinite interpretation ; but to be regarded as a credit, according to the course of the American trade, for a year ; and to forbear a suit for so long a time, during the life, and after the death of the principal, was, in fact, giving a new and independent credit; which is tantamount to a release of the surety. 3d. That although the statute of limitations may not apply, as a plea in bar (the plaintiffs residing abroad), the lapse of time furnishes a presumption, that the defendant’s letter never was accepted or relied upon, as a guarantee. 4th. That, on the most rigid construction, the guarantee can only apply to future, not to past transactions. And on these points, respectively, the following books were cited: 1 T. R. 167 ; 2 Bro. Ch. 579 ; 2 T. R. 366, 370 ; 1 Pow. Cont. 287 ; Ibid. 8, 9, 10. By the Court.—Letters of credit are a common and useful instrument in the course of commerce. They are, however, of a very serious nature ; and the writer is bound to comply with the contents, according to their genuine and honest import. In order to render them obligatory as a contract, it is not necessary, that they should be answered, if credit is given upon them. Like the case of transmitting a bond, in a letter, acquiescence and acceptance are implied, in the silent receipt of the instrument. It has been urged that the lapse of nineteen years, without notice of a default in payment by the principal, is a virtual abandonment of all recourse to the surety; on the principles applicable to bills of exchange, and to other negotiable instruments. But there is no analogy between the cases ; for the engagement of the letter of credit extends, in its very nature, to various future transactions, without reference to time or amount. It is true, however, that the gross negligence of a creditor, even of the *obligee in a bond, may operate to discharge a surety; as where the obligee is requested by the surety to proceed against the principal, in order to save the debt; if he neglects or refuses to do so, the surety, both in law and equity, will be exonerated; and this is the case in 2 Brown’s Chancery Reports, 579. But does the evidence in the present action, justify an adoption of the rule? From the years 1771 and 1772, when the shipments were made, until the year 1775, when payments were first suspended, there could be no reason for calling on the defendant. From 1775, until the peace of 1783, the debtor was guilty of no default, which would warrant an application to the surety; for he was prevented, by the war, from corresponding with the creditor, and making any payment or remittance on account of the debt. As soon as the peace had restored the intercourse between the parties, the creditor applied for payment to the debtor, who acknowledged the debt; claimed an abatement of interest; and made some overtures for a settlement ; but died in the next year, without effecting anything in that respect. The agent of the plaintiffs then addressed the defendant, not as surety, but 117 135 SUPREME COURT Schenckhouse v. Gibbs. [Jau’y as executor of his brother : and, indeed, it does not appear, that the agent knew of the letter of credit, until sometime afterwards. On this review of the facts, we cannot perceive any culpable negligence, on the part of the plaintiffs, in pursuing their original debtor : nor is it clear, that they had any right to call upon the defendant, as a surety, until they had failed in their endeavors to recover from the principal; or the principal had become notoriously insolvent. The want of notice, therefore, in such a case, and under such circumstances, does not, in itself, furnish a bar t© the demand; and although, in some instances of debts, a lapse of time will warrant a presumption of payment; yet, from the nature of this contract, no such presumption can arise here. Verdict for the plaintiffs, (a) Tilghman and Do.wie, for the plaintiffs. Ingersoll, Smith and Duncan, for the defendant. *136] *JANUARY TERM, 1794. SCHENKHOUSE V. GlBBS et al. (b) Factors.—General average. If a factor is employed by several foreign merchants, unconnected with each other, he may remit by a general bill, payable to one, with separate drafts on him, in favor of each of the others; but notice of such a remittance must be given to all the parties. In such a case, if a partial loss occurs, it must be borne, as a general average, by all who are concerned. Case. The facts on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et al. (2 Dall. 134) ; and the note annexed to it. (Ibid. 136.) The following charge was delivered to the jury. By the Court.—We are of opinion, that the mode of remitting by a general bill, payable to one merchant, with separate drafts in favor of each of the other merchants, who are interested in the amount of the bill, is a good and lawful execution of the trust and authority of a factor, employed by several distinct and unconnected merchants, resident abroad. No inconvenience can arise from the transaction, if all the parties are apprised of the distributive appropriation. It is essential, however, to such a remittance, that notice should be given to the parties. In the present case, there is no proof of express notice to the plaintiff : but this may be supplied by facts, which raise a fair presumption of the plaintiff’s knowledge on the subject: and his delay in protesting and returning the bill, together with the draft on Portener, sent directly by the defendants to him, are facts of that description. (a) This cause was tried at York Town nisi prius, on the 22d of May 1793, before Shippen and Bradford, Justices. (&) An outline of this case was annexed in a note to the case of Ingraham v. Gibbs, 2 Dall. 134; but it was thought of some importance^ to add the opinion expressed by the court on the trial. 118 -------- 1794] OF PENNSYLVANIA. 136 McEwen v. Gibbs. It only remains to observe, that Portener, the general trustee, could give no preference to any claimant on the fund ; and that in case of a partial loss, it must have been borne, as a general average, by all the concerned. Verdict for the defendants. *McEwen >y. Gibbs et al. [*137 Witness. Plaintiff, a certificated bankrupt, was admitted to prove a parol acceptance of a bill of exchange, the foundation of the action, after he had released his interest at the bar, his assignees having previously entered into security for costs.(a) Case, on a parol acceptance of a bill of exchange. The plaintiff having become a certificated bankrupt, was called as a witness to prove the acceptance. Dallas objected to his competency, on the ground of the witness’s liability for costs ; and his interest in augmenting the estate surrendered under his commission. But it appearing, that the assignees carried on the suit, and had entered into security for costs, The Coubt (after the plaintiff had released his interest at the bar) directed him to be sworn, upon the authority of Scott v. Me Clenachan. (a) A party to a suit is a competent witness to prove many facts, which are collateral to the issue; thus, a party is a competent witness to prove the service of notice to produce papers on the trial of a cause, and to prove notice of taking depositions. Jordan v. Cooper, 3 S. & R. 564. So, to prove that a subscribing witness to a deed is dead, to let in secondary evidence of its execution (Douglass’s Lessee ®. Sanderson, 1 Dall. 116; s. c. 1 Yeates 15); and that a material witness, whose deposition has been taken, is unable to attend court, by reason of advanced age and indisposition; Mean s Lessee v. Flora, cited, 1 Yeates 16; 2 Dall. 117. A person interested in a suit may be a witness to show the identity of blocks, taken from marked trees, on the different lines claimed by the parties. Lessee of Coxe v. Ewing, 4 Yeates 429. See also, The King v. Lukens, 1 Dall. 5, and note; Bank of Pennsylvania v. Hadfeg, 3 Yeates If no evidence is offered against a defendant to a suit, he may be a witness for his co-defendant, Wakely v. Hart, 6 Binn. 316; but if circumstances are proved, from which it is possible for the jury to presume facts amounting , to guilt, the person against whom these facts have been proved, cannot be received as a witness. Pennsylvania ®. Leach, Add. 353. After a submission to an indictment, it is usual to hear the defendant’s statement, but not under oath. Respublica v. Askew, 2 Dall. 189. A party may be made a competent witness, wherever all his interest in the event of the suit can be removed. A plaintiff who, after the commencement of a suit, has made a voluntary assignment of all his property to creditors, and has also executed a release to the assignees, of all his interest in the money which may be recovered in the action is a competent witness in the cause, provided all the costs are paid before he is sworn.’ Steele v. Phoenix Ins. Co., 3 Binn. 306. See also, Field v. Biddle, 2 Dall. 171-2 note-Bennett ®. Fleshington, 16 S. & R. 193; Cook v. Grant, Id. 198. In replevin by R.’ the defendant avowed the taking, in a house occupied by N., for rent due by N. to defendant; the plaintiff replied no rent in arrear; Held,, that N. was not a witness for the plaintiff, being liable to plaintiff for the costs of suit, in addition to the amount of rent recovered. Rush ®. Flickwire, 17 S. & R. 82. See, on this subject, McHroy ®. McIlroy 1 Rawle 433; Hart®. Heilner, 3 Id. 407; Kimball ®. Kimball, Id. 469; Cox ®. Noi> ton, 1 P. & W. 412; Black ®. Marvin, 2 Id. 138 ; Gallagher ®. Milligan, 8 Id. 177. 119 *188 SUPREME COURT [April *APRIL TERM, 1794. Boyd’s Lessee v. Cowan. Ejectment.—Mesne profits. The mesne profits can be recovered in an ejectment, by way of i amage8.(a) Ejectment, tried at West Chester, in Chester county, on the 2 2d of October 1793. The jury gave a verdict in favor of the plaintiff, for the premises mentioned in the declaration ; and also for 41?. 13s. 4c?. damages, being the value of the mesne profits ; subject to the opinion of the court on a point reserved ; to wit: whether the mesne profits can be recovered in an ejectment, by way of damages ? After argument, when the judges were about to deliver their opinions, the parties made an amicable settlement of their dispute : but the general question being of importance, no excuse will be offered, for inserting here, the opinion prepared by the chief justice. McKean, Chief Justice.—In delivering my sentiments upon the point reserved in this cause, I shall first consider the objections made to the recovery of the mesne profits, in the action of ejectment; and then, the reasons in favor of such a recovery. 1. The leading objection (and which, at first sight, appears the strongest) is, that the action of trespass for the mesne profits, is always laid with a continuando ; thus differing from the form of the action of ejectment, which alleges only a single act of entry and ouster. For which 3 Black. 205 ; 3 Wils. 118 ; 2 Bac. Abr. 181; and Runnington, 4, 5, 44, 164, have been cited. 2. ‘ Special bail can be required in the action of trespass for the mesne profits, but not in the ejectment. (2 Barnes 59.) 3. If damages are given for the mesne profits, in the ejectment, and an action of trespass shall afterwards be brought for the same cause, the former cannot be pleaded in bar. 4. The law has been against this practice, and cannot now be altered except by the legislature. *1 qai *5, would be inconvenient to allow the practice ; because titles J are frequently so complicated and difficult, as sufficiently to command the whole attention of the jury; and it would be too burdensome to impose (a) The plaintiff in an action of ejectment may recover mesne profits, on giving notice to the defendant,' that he intends to proceed for them. Lessee of Battin ®. Bigelow, 1 Peters G. 0. 452. “When the action of ejectment remained in its primitive state; while it was strictly a remedy for a lessee, quare ejicit infra terminum, there, the value of the land, during the time the defendant tortiously held it, was the measure of damages. When the proceeding came to be fictitious, nominal damages only were given; and this introduced the action of trespass vi et a/rmis, generally called the action for mesne profits, and it would seem, that even in the fictitious action, the plaintiff may recover his real damages, by giving notice of his intention to the defendant. But the usual and safest course is, only to take a verdict for nominal damages, and recover the real damages in the action for the mesne profits, and that has been the unvaried practice, as well before as since the act introducing the writ.” Per Duncan, J., Osbourne v. Osbourne, 11 S. & K. 58. 120 1794] OF PENNSYLVANIA. 139 Boyd v. Cowan. upon them, also, the ascertaining the value of the mesne profits by one verdict. This is the amount of all that has been, or, I believe, that can be urged against the measure. My answer to the first objection is, that I agree that the form of the writ and declaration in an action of trespass for the mesne profits contains a continuando of the trespass, and that it cannot be changed but by positive law. This prevents the necessity of several actions of trespass, for every several trespass ; and unless it is so laid, it nowhere appearing on the record that the trespass was continued for a certain time, it must be takm by the court and jury to be for a single act, and damages can be given for nothing more. But in an ejectment, there is no arrest, no writ, and the form of the charge in the declaration in the king’s bench in England is, “that the defendant entered into the tenements, &c., of the plaintiff, with force and arms, &c., and ejected, expelled and removed him ; and him being so ejected, expelled and removed, the defendant hath hitherto withheld from him, and still doth withhold, the possession, &c.” (Jacob’s Law Dictionary, title Ejectment ; 1 vol. Attorney’s Practice in K. B. page 424, 440; Lill. Ent. 192, 205.) Besides, it sufficiently appears on the whole record in the ejectment, that the plaintiff was in possession, that the defendants ousted him on a certain day, and detained the possession until the trial; so that the action is not for a single act of trespass; and therefore, the jury may well give damages for the whole time the wrong continued. At all events, the precedent may be so made, in the common pleas, as well as in the supreme court. With respect to the second objection, that special bail can be required in the action of trespass for the mesne profits, but not in the ejectment: it is true, that, upon affidavit, the court of common pleas, in England, has ruled special bail in the action of trespass for mesne profits, though it has been held otherwise in the king’s bench. (Duncombe v. Motteram, Pr. Reg. Com. Pl. 62.) However, there appears to be no weight in this, when it is considered, that this action is brought after the ejectment is determined, so that the plaintiff is in no worse condition (although he has no special bail in the ejectment) on that account, but rather a better ; for if the value of the mesne profits is recovered in the ejectment, he may have a fieri facias for them immediately. If, too, the defendant should, before execution is executed, withdraw his person and effects from the jurisdiction of the court, the plaintiff would still be left in a better situation ; for if he pursues the defendant, he may arrest him in an action of debt on the judgment, in any of the United States ; whereas, in such a case, no action of trespass for the * mesne profits could be brought (it being a local action), in a foreign country, and bail demanded. *In answer to the third, I will only mention, that nothing appears . plainer, than that the defendant may plead the recovery of the dam-ages in the ejectment; with an averment that they were given for the mesne profits, in bar of the action of trespass. (1 Leon. 313, ca. 437 : 3 Ibid. 194. ca. 242. ’ The fourth objection, that this court cannot alter the law, is correct, beyond controversy; but there is no positive law respecting this action, or directing that the mesne profits shall not be recovered in it, as well as possession ; and the court can alter the practice, and institute any rules in an 121 140 SUPREME COURT [April Boyd v. Cowan. action of ejectment, which they may deem beneficial, or for the furtherance of justice, without legislative aid. An ejectment is the creature of Westminster Hall, and has been gradually moulded into a course of practice, by the rules of the courts. It is, in form, a fiction; in substance, an action invented for the speedy trial of titles to the possession of lands. For a long time, damages only could be recovered in this action, the measure of which was always the mesne profits. (3 Wils. 118, 120.) In the 14 Hen. VII, and not before, the term or thing, as well as damages, were allowed to be recovered. At first, there was a lease really sealed on the land, and the action was against the real tenant in possession. It came in place of the assize, in which action, the possession, as well as the mesne profits, was recoverable. Afterwards, casual ejectors were set up ; and notice ordered to be given to the tenant in possession. Then the new practice was invented by Chief Justice Rolle. Not very long ago (in 1751), it was ruled in the common pleas, that if, after a recovery in ejectment against the defendant, he should bring a writ of error, he should give bail to the plaintiff in a sum equal to the value of, at least, two years’ mesne profits. (2 Barnes Notes, 86.) Many other alterations have taken place ; and the same authority which brought it thus far, may certainly carry it to a higher degree of perfection, as experience happens to show inconveniences or defects. Being under the control of the court, it may be modelled so as to answer, in the best manner, every end of justice and convenience. (3 Burr. 1292, 1295 ; 3 Bl. Com. 205 ; 2 Burr. 660.) Besides, by the 6th section of the act of assembly, entitled “ an act for the more speedy and effectual administration of justice,” it is declared and enacted, that “ the justices of the supreme court have full power and authority to make such rules for the regulating the practice of the said court, and expediting the determination of suits, as they in their discretion shall judge necessary.” Of the power of the court, therefore, in this particular, I entertain no doubt. I shall now, briefly, consider the argumentum ab inconvenienti ; which refers but to a single instance, to wit, the difficulty the jury may labor under, in deciding on the titles of the parties to the possession, and at the same time, in fixing the value *of the mesne profits, if the verdict ■* shall be for the plaintiff. There can be no great hardship in this. In actions of waste, dower, assize, and all others where the thing itself, as well as the damages, is recovered, the jury are liable to the same inconvenience : nor can I perceive any great perplexity that can arise in determining the rent, or annual value of a house, or parcel of land, when complete evidence is given of it. It appears to me, that the inconvenience or hardship is the other way. After a person has been unlawfully kept out of his house or land, for a series of years, and undergone great trouble and expense in recovering a judgment for them ; to give him the possession merely, without any satisfaction for the use and occupation, pending the action, does not seem complete justice. To tell him, “You must sue for the mesne profits in a new action, fee counsel, attend the courts, produce witnesses, and have a new trial, for the sole purpose of fixing their value,” is certainly imposing an improper burden upon him, if justice can be had in a more speedy, cheap and easy way. Taking a verdict for the amount of the mesne profits, as well as on the title in 122 1794] OF PENNSYLVANIA. 141 Boyd v. Cowan. the ejectment, will prevent this circuity, delay and expense ; and I believe it to be equally beneficial for the defendant ; for if, on the trial, he shows a reasonable ground for controverting the plaintiff’s claim, or a specious title in himself, a jury would be inclined to give but very moderate damages against him (of which the jury in the action for the mesne profits can have no consideration, as the title cannot in that action be again gone into), and he would certainly be saved the costs and expenses of the second suit. It is in argument, in law and in logic, as it is in nature {destructio unius, est generatio alterius), that the destruction begets a proof. I shall, however, proceed to consider the arguments and proofs on the other side of the question. This improvement of the action of ejectment has been suggested by the court in the case of Treherney. Gressingham, 2 Barnes Notes 59; White-field's case, 1 Lill. P. R. 680; Buller’s Nisi Prius, 88. There has been no judicial opinion given on this subject, in the supreme court of Pennsylvania, prior to the revolution, that I have heard of, unless it was in the case of the Lessees of James Dixon v. Thomas Iio sack, tried on the 15th of April 1775, when 414 were awarded for the plaintiff ; but such an opinion has been given in Delaware, above thirty years ago ; and the general practice in that state has been, ever since, to take a verdict for the mesne profits, in the action of ejectment. Nay, my memory does not serve me, in recollecting a single instance, where an action of trespass for the mesne profits has been brought in Delaware, from the time mentioned ; though, without doubt, it might have been done. There has been no similar precedent in Pennsylvania, since the revolution ; but on the other hand, it has been recommended, *more than once, in the supreme court of this state, to take a verdict for the L 142 mesne profits, in the ejectment ; and the point now before the court was argued, and the same case cited, by Messieurs Tilghman and Sergeant, in the case of 'William Tharpe v. John Bell, of September term 1787, when judgment was given in favor of the measure. So, in an ejectment, on the demise of Jasper Yeates, Esq., and others v. Charles Stewart, which was tried at nisi prius, at Chambersburg, for the county of Franklin, in June 1789, a verdict was taken for 1304 damages, for the mesne profits ; and a judgment rendered upon it, for the plaintiff, in banc. Upon the whole, as it appears that this court has the power of allowing a verdict to be given for the mesne profits, as damages in the ejectment ; as the judges in England, so late as the year 1742, could see no reason why it should not be done ; as it has been in use for many years in the state of Delaware, under similar authority, and no inconvenience from the practice has hitherto been there discovered; as it has been in precedent in this court, by judicial decisions : and as it is calculated, in my judgment, for the reasons assigned, to answer more fully the ends of justice and convenience, by avoiding unnecessary delay, a circuity of action, and a double expense to suitors, I still must hold the opinion, which my former brethren, as well as myself, unanimously, entertained upon the subject. If it shall be thought best by the court, that plaintiffs in ejectments should in all cases be turned round to an action of trespass, for recovering the mesne profits ; yet, after what has passed, on former occasions, I conceive it ought not to be the rule in this action ; but should be applied only to future cases ; because, at the 123 142 SUPREME COURT Commonwealth v. Chambré. [Sept. present moment, the law in Pennsylvania is, that the verdict in this action is regular, and agreeable to the practice of the supreme court. JEst boni judicis, ampliare justitiam. ♦143] *SEPTEMBER TERM, 1794. Commonwealth v. Chambre. Computation of time. The computation of time must be by calendar months, in the exception (in the 10th section of the act of 1780, for the gradual abolition of slavery) of domestic slaves attending upon persons passing through, or sojourning in the state, &c., provided they be not retained therein longer than six months. A habeas corpus was issued to the jailer of Philadelphia, to bring before Judge Shippen, the bodies of Magdalen and Zare, two negro women, committed as the absconding slaves of Mrs. Chambré. The judge, after hearing the case opened, adjourned it, for argument and decision, to the supreme court, on the 13th of September 1794, when the following facts appeared : Mrs. Chambré was a widow lady, in the island of St. Domingo, and owned the negroes in question as slaves : but on the conflagration at Cape François, she fled, bringing them with her to Philadelphia ; where she resided five calendar months and three weeks ; a period that exceeds six lunar months, in computation of time. She then removed with the negroes to Burlington, in the state of New Jersey, designing, as it was suggested, to avoid the operation of the act for the gradual abolition of slavery ; but no proof was offered, that she had ever intended to settle in Pennsylvania. The negroes, absconding from Mrs. Chambré, came to Philadelphia ; and now they asserted their freedom, under the 10th section of the act, which declares all unregistered negroes and mulattoes to be free, “ except {intef alia) the domestic slaves attending upon persons passing through or sojourning in this state, and not becoming resident therein : provided such domestic slaves be not aliened or sold to any inhabitant, nor retained in this state longer than six months.” (1 Dall. Laws, 841.) For the negroes, it was contended, that, upon authority, the general legislative expression, must be construed to mean lunar, and not calendar, months ; for which were cited, 5 Co. 2 ; Cro. Jac. 167 ; 1 Str. 446 ; 2 Bl. *1441 ’ 3 Burr. 1455 ; Doug. 446, 463. *And that, even if the J computation by calendar months were more usual at common law, a different construction would be adopted in favor of liberty, and to prevent an evasion of the most honorable statute in the Pennsylvania code. Harg. Co. Litt. 145 b. But The Court (stopping the counsel for Mrs. Chambré) said, that 1 It is now well settled, that mesne profits are 230. But the plaintiff must give previous notice recoverable in the ejectment suit, up to the of such claim. Cook v. Nicholas, 2 W. & & time of the verdict. Duncan v. McGill, 4 Whart. 27 ; Bayard v. Inglis, 5 Id. 465. 124 1795] OF PENNSYLVANIA. 144 Respublica v. Mulatto Bob. they were unanimously of opinion, that the legislature intended calendar months;(a) that the same expression, in other acts, of the general assembly, had uniformly received the same construction pruderteli n. Vaux, 2 Dall. 302) ; that there was nothing illegal or improper in the conduct of Mrs. Chambrè, on the occasion ; and that, therefore, the negroes must be remanded into her service. Lewis, Ingersoll and Franklin, for the negroes. Levy, for Mrs. Chambrè. ♦SEPTEMBER TERM, 1795. [*145 Respublica v. Mulatto Bob. FLurder.— Witness. Although murder in the first degree is, by the act of assembly, confined to the wilful, deliberate and premeditated killing of another, yet, the intention remains, as much as ever, the criterion of the crime. A slave is not a competent witness. Indictment for murder of the first degree. The charge of the court was delivered by the Chief Justice, who stated the facts and the law to the following effect :(5) McKean, Chief Justice.—The evidence in this case may be comprised in a few words. It appears, that a wedding being fixed for Easter Monday, a considerable number of negroes assembled; and about 10 o’clock at night, a quarrel arose between mulatto Bob, the prisoner at the bar, and negro David, the deceased. For awhile, the parties fought with fists; and the prisoner was heard to exclaim “ enough 1” The affray, however, became general, and continued so for some time. When it was over, the prisoner went to a neighboring pile of wood, and furnished himself with a club ; he was advised not to use it, but he declared that he would, and entered the crowd with it in his hand ; after remaining there about ten minutes, he left the crowd, without his club ; and again repairing to the wood-pile, took up an axe ; being likewise dissuaded from returning to the crowd with the axe, he said “ he would do itand striking the instrument, with great passion, into the ground, “ swore, that he would split down any fellows that were (a) Months are to be considered calendar, in all contracts or transactions between man and man, Shapley ®. Garey, 6 S. & R. 539 ;* but where a sentence of imprisonment was recorded, for the space of one month, the prisoner was discharged at the expiration of a lunar month. Respublica v. Oswald, 1 Dall. 329, in note. (5) During the trial, the counsel for the prisoner offered a negro slave as a witness in his favor; but, the attorney-general objecting to his competency, he was rejected, without argument: and it was said by McKean, Chief Justice, that it was a settled point at common law, that a slave could not be a witness, because of the unbounded influence of his master over him; which was, at least, equal to duress; that the act of assembly was in aid of the common law, not to change its principles; and that it would be diffi-cult to administer an oath to a slave, for want of knowing any religion he professed. 1 Thomas v. Shoemaker, 6 W. & S. 179. The word “month,” in a statute, means a calendar month. Moore v. Houston, 3 S. & R. 169. 125 145 SUPREME COURT [Sept. Eespublica v Mulatto Bob. saucy.” Accordingly, he mixed once more among the people ; a struggle *i *was immediately heard about the axe ; the prisoner then struck the J deceased with it, on the head; the deceased fell; and as he was attempting to rise, the prisoner gave him a second blow on the head, with the sharp edge, which penetrated to the brain. After languishing three days, death was the consequence of this wound. From these facts, we are to inquire, what crime the prisoner has committed ? Murder, in the first degree, is the wilful, deliberate and premeditated killing of another, (a) There are various inferior kinds of homicide ; but on the present indictment, our attention is confined to a consideration of the highest, and most aggravated description of the crime. Then, let us ask, did the prisoner wilfully kill the deceased ? It is not pretended, that there was any accident in the caseand therefore, the act must have been wilful. Was the killing deliberate and premeditated? or was it the effect of sudden passion, produced by a reasonable provocation ? There had been a combat with fists ; but this was over, when the prisoner, without any new provocation, first procured a club, and losing that weapon, afterwards armed himself with an axe. It cannot surely be thought, that the original combat was a sufficient provocation for the prisoner’s taking the life of his antagonist. An assault and battery may, indeed, be resisted and repelled, by a battery more violent; but the life of a fellow-creature must not be taken, unless in self-defence. It has been objected, however, that the amendment of our penal code, renders premeditation an indispensable ingredient, to constitute murder of the first degree. But still, it must be allowed, that the intention remains as much as ever the true criterion of crimes, in law, as well as in ethics ; and the intention of the party can only be collected from his words and actions. In the present case, the prisoner declared, that he would split the skull of any fellows who would be saucy ; and he actually killed the deceased, in the way which he had menaced. But let it be supposed, that a man, without uttering a word, should strike another on the head with an axe, it must, on every principle by which we can judge of human actions, be deemed a premeditated violence. The construction which is now given to the act of assembly on this point, must decide, whether the law shall have a beneficial or pernicious operation. Before the act was passed, the prisoner’s offence would clearly have amounted to murder; all the circumstances implying that malice which is the gist of the definition of the crime at common law ; and if he escapes with impunity, under an interpretation of the act, different from the one which we have delivered, a case can hardly occur to warrant a conviction for murder in the first degree.1 .h-i *Tenderness and mercy are amiable qualities of the mind ; but if J they are exercised and indulged, beyond the control of reason, and (a) 3 Smith’s Laws, 187. 1 In murder, if an intention to kill exist, it is wilful ; if the intention be accompanied by such circumstances as evince a mind fully conscious of its own purpose and design, it is deliberate ; and if sufficient time be afforded to enable the 126 mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. Commonwealth v. Drum, 58 Penn. St 9 ? Green v. Commonwealth, 83 Id. 75. 1795J OF PENNSYLVANIA. ^147 Anonymous. the limits of justice, for the sake of individuals, the peace, order and happiness of society, will inevitably be impaired and endangered. So far as-respects the prisoner, I lament the tendency of these observations ; but so far as respects the public, I have felt it a sacred duty to submit them to your consideration. Verdict, guilty, (a) Holloback v. Van Buskink, surviving administrator, &c. Racroth et ux. v. The Same. Assumpsit. Assumpsit will lie on the part of residuary legatees, against an administrator cum testamento annexo, without proof of an express assumption by him.1 These were actions on the case, in which the plaintiffs declared on a general indebitatus assumpsit, for money had and received by the defendant (who was the surviving administrator cum testamento annexo of Catharine Holloback) to their use, respectively. They claim, distributive shares in the residuum of the estate of Catharine Holloback, under her will: but it was questioned, whether such actions would lie, without proving an assumption on the part of the defendant. The Court, however, declared their opinion, that the actions might, be maintained, without proof of an express assumpsit: and verdicts were, accordingly, given for the plaintiffs, with leave to move for new trials, (5) Anonymous, (c) Conditional verdict. Case for obstructing a water-course, by which the plaintiff’s meadow was watered. Plaintiff having proved his right to the course, his counsel executed and filed a writing, by which they bound him to release any damages, that the jury might give, if defendant should execute a deed, securing to plaintiff the enjoyment of the water, and the court advised the jury, on this condition, to find the full value of the meadow in damages. This was an action on the case for obstructing a water-course, by which the plaintiff’s-meadow was watered. On the trial, it appeared, that the defendant had purchased a mill, with notice that the vendor had before sold the meadow in question to the plaintiff, covenanting that the plaintiff might use the water, over and above what was necessary for the mill. The defendant obstructed the water-course ; and it seemed to have been his object, by so doing, to compel the plaintiff to sell the meadow to him- On these facts, The Court recommended (with the concurrence of the indictment was tried at Easton, on the 21st of June 1795, before McKean Chief Justice, and Smith, Justice. ’ (&) Decided before Yeates and Smith, Justices, at Northampton nisi prius in October 1795. » (c) The name of this case is Walker Butz, 1 Yeates 574, which is a better report la«’ - the preSent day; the remedy k now exclusively in the orphans’ court Ashford v. Ewing, 25 Penn. St 218. 127 •148 SUPREME COURT Graham v. Bickham. [Dec. counsel on both sides) that the defendant should do *an act of justice in securing to the plaintiff, by deed, the enjoyment of the water-course; but he obstinately rejected the proposition. The plaintiff’s counsel, thereupon, executed and filed a writing, by which they bound their client to release any damages that the jury might give, in case the defendant should execute such a deed as the court had proposed ; and the court advised the jury, on this condition, to find the full value of the meadow in damages ; which was, accordingly, done, (a) Sitgreaves and Thomas, for the plaintiff. Ingersoll and Clymer, for the defendant. (5) •149] »DECEMBER TERM, 1795. Geaham v. Rtokham? . Damages. Unless the penalty for breach of a contract, is a sum, agreed to be paid and received, absolutely, in lieu of performance, damages may be recovered commensurate with the injury suffered by a non-performance. This was an action on the case for damages, which were laid at 10,000?. in the declaration, founded upon the following agreement, signed by the defendant: “ I do certify, that I have bought of William Graham 17,344 dollars, six per cents of the United States, to be delivered to me, on the 1st of July next, on my paying to him, on or before transferring the same, the sum of 22,818 dollars in specie. And for the faithful performance of the above agreement, I bind myself, my heirs and executors, in the sum of 1000?., lawful money of Pennsylvania, to be paid to said Graham, or his order, in case the same is not fully complied with by me. Philadelphia, 17th January 1792.” On the trial of the cause, a verdict was given in favor of the plaintiff, for 1798?. 17s. 7c?., subject to the opinion of the court, on the question, whether the plaintiff could recover more than 1000?. in an action upon this agreement ? The case was argued by D. Tilghman and Ingersoll, for the plaintiff, on the position, that unless a certain sum is agreed by the parties to be paid (a) In the case of Clyde ®. Clyde, 1 Yeates 92, which was a special action of assumpsit for a privilege of a water-course through the lands of the defendant, large damages were given by the jury, under the direction of the court, to compel the defendant to do justice. See, on the subject of conditional verdicts, Decamp v. Feay, 5 S. & R. 323 ; Coolbaugh ®. Pierce, 8 Id. 418.2 (5) Decided before Yeates and Smith, Justices, at Northampton nisi prius, in October 1795. In delivering the charge to the jury, Mr. Justice Yeates referred to a similar case, before the Chief Justice and himself, in which the court had given, and the jury had adopted, the same advice. 1 s. c. 2 Yeates 62. 2 And see J Tr^A H. Pr.,§ 68, and notes. J 128 1796] OF PENNSYLVANIA. Febeiger v. Craighead. 149 and received, at all events, as the measure of damages, the plaintiff may waive the penalty of the agreement, and proceed for damages according to the actual injury. (4 Burr. 2228 ; 2 Atk. 371 ; 1 H. Black. 232 ; 1 W Black. 395, 373 ; 2 Atk. 190.) Lewis and Rawle, for the defendant, insisted, that the contract ought not to be enforced, beyond the meaning and understanding of the parties; which was obviously to fix a sum, as the extent of the defendant’s responsibility, in case of a non-compliance *with his engagement. (16 Vin. r*. Abr. 301, “ Penalty,” pl. 3, 5, 10.) By the Court.—The substance of the agreement between the parties was, to buy and sell stock. The penalty was merely superadded as a security for performance ; and not as a sum to be paid and received absolutely, in lieu of performance. The plaintiff is entitled (notwithstanding the penalty) to recover damages, commensurate with the injury suffered by a nonperformance. The judgment must, therefore, be rendered in his favor, for the full amount of the verdict. ♦MARCH TERM, 1796. [*151 Febeiger’s Lessee v. ORATonvAn, (&) Sheriff's sale. k sheriff’s sale of land, by virtue of a judgment and execution, subsequent to a mortgage to the trustees of the loan-office, does not destroy its lien. At a court of Nisi Prius, held at Carlisle, a case was stated for the opinion of the court, containing these facts: A tract of land, in Cumberland county, was mortgaged by John Glenn to the trustees of the loan-office (whose rights, powers and duties, have been transferred by law to the plaintiff, as state treasurer), and the land was afterward levied upon, and sold at a sheriff’s sale, to the defendant, by virtue of a subsequent judgment and execution. The question is, whether the mortgage remains a lien upon the land, against the purchaser at sheriff’s sale ?(5) (a) s. c. 2 Yeates 42 ; and for 0. J. Shippen’s notes of this case, see 3 Rawle 117, note a.1 (5) Whatever may have been the effect of a judicial sale on other interests, both the policy and the practice of the legislature have been, to hold the lien of a mortgage to the state undischarged, by anything but actual payment into the treasury, and such mortgage is not divested by a judicial sale, on any other lien of the land mnrtgaged, nor is it to be paid out of the purchase-money raised by such sale. Duncan v. Reiff, 3 P. & W. 368. In the report of the case of Febeiger’s Lessee®. Craighead, by Yeates, a queers is made, as to the effect, upon a prior mortgage to an individual, of a sale under an execution issued by virtue of a judgment subsequent to the mortgage. In the case of Moliere’s Lessee v. Noe, 4 Dall. 450, which was a sale by order of an orphans’ court, this point was suggested, and the judges expressed their opinion, in concurrence with that of the counsel on both sides, that a mortgage retains its lien on the premises, not- 1 Said to be imperfectly reported, in 8 Rawle 187. J Daix.^-9/ 129 151 SUPREME COURT [March Bank of North America v. Wycoff. By the Court.—The case admits of no doubt. Judgment must be entered for th 3 plaintiff. IngersoU, attorney-general, for the plaintiff. Zewts, for the defendant. Bank of North America v. Wycoff. (a) Notice of non-payment.— Witness. The indorser of a promissory note must receive notice, within a reasonable time, of the non-payment of the note by the maker. An executor, who is entitled to a share in the residuum of his testator’s estate, which is interested in the suit, is not a competent witness to prove such notice, although the objection appear on his cross-examination. Case, by the indorsee against the payee and indorser of a promissory note, made by Joseph Harrison. The question was, whether the defendant had received notice within a reasonable time, of the non-payment of the note by the maker? Jacob Lawerswyler, the runner of the bank, was called as a witness, to prove the notice ; but after a long examination in chief, he stated on his cross-examination, “ that he was the executor of Jacob Winney, a stockholder in the bank of North America; and was entitled to a share in the residuum of the testator’s estate.” *The defendant’s counsel then objected to the competency of the J witness, on account of his interest in the bank. They insisted, that although this appeared after a cross-examination, it was sufficient for the rejection of his evidence altogether; and that, consequently, as there was no proof of notice, independent of his evidence, the plaintiff must be nonsuited. The Court concurring, clearly and explicitly, in the opinion of the defendant’s counsel, The plaintiff suffered a nonsuit. withstanding such a sale. The question above stated was, however, presented to the supreme court, for the first time, for direct decision, in Willard v. Norris, 2 Rawle 56 ; and then it was held, that when land, subject to a mortgage, is sold under a judgment, obtained subsequently to the execution and recording of the mortgage, the purchaser at sheriff’s sale takes the land discharged of the lien of the mortgage. This decision was received with astonishment by the profession, and alarm by the public; and at the ensuing session of the legislature, bills were simultaneously introduced into both houses, to preserve the lien of a mortgage, notwithstanding a sale under a junior incumbrance; subsequently, the act of 6th April 1830, was passed to that effect. Several decisions followed that in Willard ®. Morris, sustaining and confirming it; McLanahan v. Wyant, 1 P. & W. 96; Fickes ®. Ersick, 2 Rawle 166; Presbyterian Corporation v. Wallace, 3 Id. 109; in this case, the principle was fully discussed, as res Integra ; and the learned arguments of the counsel on both sides, and the elaborate and profound opinion of the court, present a complete disquisition on the subject. Notwithstanding the act of 1830, the lien of a mortgage may be divested by a sale under a junior incumbrance, if such be the agreement of the parties. Shultz ®. Diehl, 2 P. & W. 273.1 (a) s. c. 2 Yeates 39. 1 The decisions under the act of 1830, which v. Craighead, will be found collected in Bright, are foreign to the point involved in Febeiger Dig. 1103-4. And see 1 Tr. & H. Pr. § 1317-8 130 1796] OF PENNSYLVANIA. 152 Bell v. Andrews. (a) Statute of frauds. Where there has been payment of the price of land, under a parol agreement for the sale of it, an action will lie to recover damages for the non-performance of such a contract.1 This was an action on the case, to recover damages, for the breach of an agreement to sell and convey to the plaintiff, in fee-simple, a tract of land in Westmoreland county. Hallowell, for the plaintiff, offered parol evidence of the agreement, as stated in the declaration ; of the payment of the price of the land; of the defendant’s subsequent acknowledgment of the sale and payment ; and of the defendant’s refusal to execute a conveyance. 8. Levy, for the defendant, objected to any proof of a parol agreement, for the sale of lands in fee-simple, as the act for the prevention of frauds and perjuries (1 Dall. Laws, 640; 1 Sm. Laws, 389), required, expressly, that all such agreements, to have the full effect, must be put in writing, and be signed by the parties, or their agents. But— By the Court.—The payment of the consideration-money may, certainly, be proved by parol evidence. The agreement being then executed by one of the parties, is not affected by the act of assembly ;(6) and it is settled, that the English statute against frauds and perjuries was never extended to Pennsylvania. The act of assembly does not make a parol agreement for the sale of lands, void ; though it restricts the operation of the agreement, as to the acquisition of an interest in the land, and no title in fee-simple can be derived under it. But, certainly, an action will lie to recover damages for the non-performance of such an agreement, (c) The objection to the evidence overruled. (a) This case was tried at nisi prius, on the 25th of August 1796, before McKean, Chief Justice, and Shippen and Smith, Justices, and there was a verdict for the plaintiff. It appears by the record, that two witnesses were examined. (S) Though the decision in this case is perfectly correct, yet the dictum of the court when ruling the question of evidence before them, must be attributed to the hurry of a jury-trial; for no aid from the doctrine of part performance could be necessary, in a case which depended for support, not upon the agreement being taken out of the operation of the act of assembly, by the equity arising from part performance of it, but upon the ground that the agreement was not rendered void by the act. (c) Ewing v. Tees, 1 Binn. 450, in which Chief Justice Tilghman says, “in several cases at nisi prius, damages have been recovered on parol contracts for the sale of land.”» 1 Clyde v. Clyde, 1 Yeates 92; Sedam v. Shaffer, 5 W. & S. 629 ; Meason v. Kaine, 63 Penn. St. 336; s. c. 67 Id. 126; Thompson v. Shep-lar, 72 Id. 160. 2 As to the measure of damages, see Eilet v. Paxson, 2 W. & S. 418; Meason v. Kaine, 63 Penn. St. 335; s. c. 67 Id. 126; Bouser v. Cessna, 62 Id. 148; Harris v. Harris, 70 Id. 170. If no expenses have been incurred on the faith of the agreement, only nominal damages are recoverable. McCafferty v. Griswold, 29 Pitts. L. J. 269. 131 •153 1 SUPREME COURT [Deo. •DECEMBER TERM, 1797. Stroud, assignee, &c., v. Lookart el al. Mortgage. If the purchaser of property knows, at the time of his purchase, of the existence of a mortgage, which has not been recorded according to the act of assembly, the premises will be bound by • the mortgage.(a) Scire facias on a mortgage. The mortgage had not been recorded, conformable to the act of assembly ; and Lockart had purchased the premises. But, on the trial, the plaintiff proved, that Lockart knew of the existence of the mortgage, at the time of his purchase, and said he would have to pay it, although it was not then recorded. By the Court.—The case is too plain for controversy. The plaintiff must have a verdict; and all the trouble of the jury will be to calculate the interest. Verdict for the plaintiff. Seagrove v. Redman et al. (6) Evidence. A book of original entries (some of which were made in the plaintiff’s handwriting, and some In that of a clerk), relating to a mercantile transaction in a foreign country, produced and sworn to by the plaintiff, was admitted in evidence. The plaintiff resided in the Havana, and was the agent of the defendants in fitting out a privateer for them, during the war. On the trial of this cause, he produced, and swore to the authenticity of, his book of original entries (some of which were made in his own handwriting, and some in the handwriting of a clerk), to prove the disbursements for the privateer. And The Court admitted the evidence, after opposition, upon the principle, that as it related to a mercantile transaction, which took place in a foreign country, a relaxation of the strict rules of the common law was reasonable, just and necessary. (a) See, on this point, Levinz v. Will, 1 Dall. 430, and notes ; Parker ®. Wood, Id. 436.1 (f) s. c. 2 Yeates 254. 1 And see Speer v. Evans, 47 Penn. St. 141. Actual notice is equivalent to constructive notice by recording. Id. 144 ; Woodwaed, C. J. 132 1798] OF PENNSYLVANIA. *164 ♦DECEMBER TERM, 1798. Nicholson’s Lessee v. Wallis, (a) Ejectment.—Limitation. A decision of the Board of Property was pronounced, upon a caveat, in favor of the defendant, on the 14th of February 1796: a declaration, entitled as of April term 1796, was served by a private individual on the defendant, on the 10th of August 1796; and it was entered on the docket of the supreme court, on the 20th of that month; but contrary to expectation, the court had risen on the preceding day, which, of course, then ended the term: Held, that the ejectment was well brought, within the six months allowed by the act of 1792. This cause had been decided by the board of property, in favor of the defendant, upon a caveat respecting land in Northumberland county, on the 14thof February 1796; but the patent was stayedfor six months, within which time, the party is allowed, by the act of assembly, to enter his suit at common law, in the nature of an appeal. (Act 3d April 1792, § 11, 3 Sm. Laws, 74.) For that purpose, a declaration in ejectment was framed, entitled as of April term 1796 ; it was served by a private hand (not the sheriff), on the defendant, in Philadelphia, on the 10th of August 1796 ; and it was entered on the docket of the supreme court, on Saturday, the 20th of August 1796 : but the court had risen (contrary to the usual practice, and the expectation of the bar) on the preceding day, when, of course, the term ended. In April 1797, a rule was obtained, by the defendant, to show cause why the ejectment should not be stricken from the docket; on the ground, that it was not entered, within the six months allowed by the act of assembly. And upon the argument in chief, at the present term, it was contended, that the cause was not in the possession of the court, until the process was returned (6 T. R. 617); that, in the case of the sheriff, the court might have called for a return, but not in the case of a special agent, employed by the plaintiff to execute a writ (4 T. R. 119); and that a service of the declaration in ejectment upon the defendant, is not an entry of the suit, within the terms or meaning of the law. The plaintiffs counsel urged the injustice that would be done, by a mere matter of accident and surprise, if the rising of the court, a day earlier than the usage, should be the ground of quashing the present suit. They further insisted, that the service *of the declaration in ejectment upon the defendant, was a commencement of the suit within six months, according to the spirit and intention of the law ; that the declaration was the only process in ejectment (2 Sell. Pr. 164); that it might be served on the tenant himself, in any place ; though, if the service was on a wife or servant, it must be on the premises (2 Cromp. Pr. 165 ; Runn. Eject. 155); that the sheriffs of the several counties were now obliged by law, to serve declarations in ejectment (3 Dall. Laws, 170, § 10); that the return is the certificate of the sheriff, stating what has been done touching the execution of the writ (Compl. Sheriff, 144; Dalt. 162); and that the proceedings of a special bailiff, (a) s. a 2 Yeates 416, reported as Nicholson’s Lessee ®. Wallace. 133 155 SUPREME COURT [Dec. Keppele v. Carr. being recognised by law, as a competent person to serve the process in ejectment, must be as effectual as the proceedings of the sheriff. After consideration, The Coubt were of opinion, that the ejectment was well brought, within the six months allowed by the act of assembly; and ordered that the rule to show cause be discharged. Rule discharged. Keppele et al. v. Cabb et al. Carr et al. v. Keppele et al. Bills of exchange.—Damages. The damages on a protested bill belong to the party at whose risk it was remitted. A. & B., being indebted to C. & Sons, foreign merchants, delivered a bill of exchange, drawn by one S., and indorsed by A. & B., to C., one of the firm of C. & Sons, but he refused to remit it on their account and risk: the bill was returned unpaid and protested, and then A. & B. tendered to 0. the principal and interest of it, and demanded its restitution, with the protest, but he rejected this offer, saying, that he would settle it with S.; B. then told C., that they, A. & B., should consider the bill at the risk of C. & Sons, from that day: C. afterwards entered into an arrangement with S., and took his note for principal, damages and charges, but before the note became due, S. failed: A. & B. sued C. & Sons for the damages included in the note, with interest from its date; and C. & Sons sued A. & B., for the original consideration of the indorsement of the bill; Held, that A. & B. were entitled to their demand, and that their debt to C. & Sons was paid in law, by the conduct of the latter. The case was briefly this: Keppele & Zantzinger, Philadelphia merchants, being idebted to Carr & Sons, English merchants, for goods sold and delivered, bought a bill of exchange from John Swanwick for the amount, drawn in their favor, and indorsed by them; delivered the bill to one of the partners of Carr & Sons, who was in Philadelphia, but who expressly refused to remit it, on the account and risk of his house; and informed Carr & Sons by letters, dated respectively the 20th of May, and 20th of June 1796, “that the bill, when paid, will be in full for merchandise (high charged) to our G. Keppele, by your invoice, dated the 31st of March 1795.” The bill was duly presented and protested for non-acceptance, on the 27th of June, and for non-payment, on the 29th of August 1796 ; and on its being returned with the protest, notice was regularly given to the drawer and indorsers. Keppele & Zantzinger then (about the 5th of-November 1796) tendered to Carr the principal and interest of the bill, and demanded restitution of it, with the protest; but Carr refused to accept the tender, or to deliver up the bill; saying, “ that he would settle the bill himself with Swanwick:” whereupon, Zantzinger declared, “we shall consider the bill at your risk, from this day.” Carr then entered into an arrangement with Swanwick, took his promissory note for principal, damages and charges, and delivered to him the bill and protest. Before the note became due, rpi *Swanwick had failed ; and Carr demanded payment from Keppele & J Zantzinger, on the footing of the original account for goods sold. On the other hand, Keppele & Zantzinger demanded from Carr, the twenty per cent, damages, included in Swanwick’s note, with interest from the date of the note. And upon these adverse claims, the present actions were instituted, and tried at the same time. At the trial of the cause, three grounds were taken in favor of Carr <& Sons: 1st. That the language of the letters, written by Keppele & Zantzinger 134 , 1798] OF PENNSYLVANIA. 156 Keppele v. Carr. was not meant to retain an interest in the bill of exchange ; but to preserve unimpaired the original contract, if the bill was not honored ; or, at most, to protect them, as indorsers, from being liable for damages ; but not to entitle them to receive any. Carr & Sons had a complete power over the bill; they might have cancelled it, after acceptance, for the acceptor’s note; or they might have released it, upon any, or no consideration, to the drawer’s agent in England; the only effect of* which would be, to render the bill payment of the proceeding debt, as in Watts v. Willing, 2 Dall. 100. And Chapman n. Steinmetz, 1 Dall. 261, differs from this case ; because the suit was there against the drawer of the bill, who was also the original debtor, expressly stipulating, that he should not be liable for damages ; and here Carr & Sons do not sue Keppele & Zantzinger on the bill, for damages. 2d. That whatever might be the operation of the original contract, the claim of Keppele & Zantzinger to damages was extinguished, when Zantzinger declared, that “ the bill would be considered, for the future, at the risk of Carr & Sons changing essentially the relative responsibility of the parties. 3d. That the suit brought by Keppele & Zantzinger, for the damages, was a disaffirmance of any implied contract, that the bill of exchange was paid or received in satisfaction of the precedent debt; and consequently, Carr & Sons are entitled to recover upon the old account, whatever may be their responsibility for the principal, as well as the damages of the bill. In that respect, too, Keppele & Zantzinger have chosen to regard them as agents ; and can only be entitled to recover what Carr & Sons received, to wit, Swanwick’s promissory note. In favor of Keppele & Zantzinger, it was urged : 1st. That the remit-tance of the bill of exchange was, by express stipulation, upon their account, and at their risk ; and the terms of the remittance came, pointedly, within the principle of Watts v. Willing, and Chapman v. Stevnmetz. Until the bill was paid, in England; or, in case of a protest, until it was recovered from the drawer here, it was, exclusively, at the risk of Keppele & Zantzinger ; and they, who were exposed to the whole risk, were entitled, in law and equity, to the whole benefit of an indemnity. *2d. That the declaration of. Zantzinger does not, either in the intention or the * expression, amount to a waiver of the claim for damages ; nor can it, in any respect, impair or alter the conditional contract on which the remittance was made. 3d. That the conduct of Carr & Sons has made the bill of exchange an absolute fund for the payment of the precedent debt'; and that debt was eventually extinguished and satisfied, by taking Swanwick’s note : but their conduct creates no right to receive more than the amount of the precedent debt; and consequently, they are liable for the damages in one suit, though they cannot recover upon the account, in the other suit. Shipped, Justice, (a)—The sum in controversy is small; but the principle of the decision is of great and general importance. What is the law, the justice and the usage, upon the subject? It appears from two cases (a) The Judges differing in opinion, each addressed the jury; hut the Chief Justice on account of indisposition, added only a few words, in affirmance of the sentiments of Shippen, Justice. 135 157 SUPREME COURT [Dec. Keppele v. Carr. that have been cited (1 Dall. 261 ; 2 Ibid. 100), to be the settled law, that where a bill of exchange is not paid and received, in satisfaction of a debt, due from a merchant to his correspondent, it goes at the risk of the debtor ; and the creditor who remits it for acceptance and payment, stands on the footing of an agent only, until the bill is actually paid. Then, in point of justice, it seems but fair, to allow every incidental or casual profit and emolument, to the party who is exposed to all the hazard and inconvenience of the remittance. As to the usage, the jury are best able to ascertain it from personal experience ; but so far as I have been able to collect information, there appears to be only one opinion among commercial men ; to wit, that he is entitled to the damages, on whose account and risk the bill of exchange is remitted. To disturb this usage, would, obviously, operate very injuriously to the American merchant, in favor of foreign merchants ; but if the usage were not established, or if it were an unreasonable one, our decision would not depend upon considerations of that nature : we should ruat coelum ! Let us, then, consider the facts of the present case, under this general view of the law, justice and usage of merchants. The debt was due and payable in London : the creditor refused to accept payment here, on account of the rate of exchange : the immediate loss and expense of the remittance fell, therefore, on the debtor, as well as the contingent risk of the bill. The creditor also refused to take the hazard of the remittance to himself; and, in effect, agreed to act as the agent of the debtor, in all that related to the bill of exchange. There is not, in short, the least doubt on this important fact, that the bill was remitted on account of Keppele & Zantzinger, though indorsed by them *to Carr & Sons. When the bill returned pro- J tested, the debtor demanded it, tendering the amount of principal and interest; but this overture to a payment was peremptorily rejected by Carr; and he assumed the sole management of settling the business with Swanwick. Whether it was settled by a cash payment, or by a promissory note, is not material ; the bill being delivered up without the authority or consent of Keppele & Zantzinger; and Carr & Sons becoming, consequently, responsible to them for the full value of their interest in the bill. That interest was the amount of the damages, on the principles which have been suggested ; particularly, because Keppele & Zantzinger defrayed the whole expense, and ran the whole risk of the remittance. Suppose, produce had been shipped to Carr & Sons, to be sold on account of the shippers, but the proceeds were to be applied to the payment of their debt, could it be pretended, that the consignees would be entitled to any profit on the sale ; or that, in case of a loss, it must be borne by them ? No, in that instance, and I think, with a parity of reason, in the instance before the court, Carr & Sons are neither to know profit or loss, in the transaction. It is surely enough for the British merchant to enjoy the fair profit charged upon the goods, which he sells and transmits to his American customers ; without being allowed to speculate upon the damages on bills of exchange, the usual medium for paying his account, in a way, that enables him to pocket all the gain, and to cast upon them all the loss. In justice to Carr & Sons, however, it is proper to take notice of another ground, on which their cause has been placed; the only ground, indeed, that has created any doubt or difference in the minds of the judges. On the 5th 136 1798] OF PENNSYLVANIA. 158 Keppele v. Carr. of November 1790, when they refused to accept a tender of principal and interest, Keppel* & Zantzinger made a declaration, which, at the first view, looked as if they relinquished every pretension to the bill of exchange : “We shall consider the bill as at your risk, from this day.” This expression, however, cannot, in law, be regarded as constituting a new contract or agreement; for, certainly, there was no mutuality of bargain; no coincidence of proposition and assent. But it may, in point of fact, be regarded as an extinguishment of the conditional terms of the remittance ; as an abandonment of all claim upon the bill of exchange ; a fact which the jury must decide. It appears to me, however, that if law, justice and usage had previously vested the right to damages in Keppele & Zantzinger, it is too light, too equivocal, an expression, to be construed into a waiver of that right; particularly, when it may with, at least, equal propriety, be construed to mean, that they should consider Carr & Sons responsible, if Swanwick failed in payment. On the action by Carr & Sons, against Keppele & Zantzinger, it is unnecessary to detain the jury with any explanatory *remarks. The r*iKQ account was settled ; and, by the conduct of the plaintiffs, it has been completely paid, in law and justice. Smith, Justice.—I concur in the opinion of my venerable brother, as to the second action ; and subscribe, indeed, to all the general principles, which he has stated, in reference to the first. But it is my misfortune to view in a different manner from him, the important transaction of the 5th of November 1796: for whatever may have been the antecedent rights of Keppele & Zantzinger, the conversation of that day, does, in my opinion, essentially change the situation of the parties. The bill was thenceforth entirely at the risk of Carr & Sons ; and if Swanwick had failed, the very next day, before any arrangement for payment, or before any laches in the endeavor to obtain payment, Carr & Sons could never have recovered from Keppele & Zantzinger, either on the original account, or on the indorsement of the bill. The risk of Keppele & Zantzinger being thus at end, all their legal and equitable claim to the damages, on account of risk, must also be extinct. In an early stage of the transaction, too, I think, there is some fallacy in treating Carr & Sons merely as the agents of their debtor, in relation to the bill of exchange. If they had lost or destroyed it; if, on the protest, the drawer’s friend had paid it in London, for his honor ; or, if Carr & Sons, after an acceptance, had released the acceptor, with or without a consideration ; surely, in none of these instances, could a claim to twenty per cent, damages arise ; and all that Keppele & Zantzinger could insist upon, in law, justice or usage, would be, that the bill, under such circumstances, should be deemed a payment of their debt, notwithstanding the conditional terms of the remittance. In these sentiments, I am uninfluenced by any consideration of attachment to the American merchant, or of enmity to the British merchant; and I think, they will be found to conform best to the honor of all merchants, which, like the chastity of a female, should be free from suspicion, as well as free from taint. McKean, Chief Justice.—Upon the refusal of the tender, in November 1796, Zantzinger declared, that the bill of exchange should be at the risk of 137 159 SUPREME COURT [March McCIay v. Hanna. Carr & Sons for the future. The meaning of this declaration^ I understand to be (at least, it is a reasonable interpretation), that Carr & Sons themselves should be answerable to Keppele & Zantzinger, for the principal, interest and damages, even if Swanwick should become insolvent. Under the view of the case, I concur with my brother Shippen, in all his remarks which he has delivered to the jury. Verdict for Keppele & Zantzinger in both actions. Ingersoll and Brinton, for Keppele & Zantzinger. Dallas, for Carr & Sons. *160] *MARCH TERM, 1799. MoClay v. Hanna et al. Appeal. An appeal from an orphans’ court dismissed, because it did not appear that a definitive decree had been pronounced. When and how an executor shall be charged with property conveyed to him on a secret trust, quaere ? This was an appeal from the Orphans’ Court of Dauphin county, under the following circumstances : John Harris, by his will, dated the 25th of May 1790, proved 2d of August 1791, bequeathed all his personal estate to his sons, David, Robert and James, and his daughters, Mary McCIay and Mary Hanna, to be equally divided between them. He also ordered his executors to sell all his lands, not otherwise disposed of by his will, and divide the proceeds as aforesaid. He directed his executors to settle their accounts in the orphans’ court, in one year after his decease, and continue to settle an account annually, until the estate was finally settled. In January 1795, a citation was issued at the request of William McCIay, one of the executors of John Harris, against David Harris, Robert Harris, John Andrew Hanna, Joseph Work and John McCIay, the other executors, to appear at the next orphans’ court for Dauphin county, to make a full disclosure of all effects and estate of the deceased which had come to their hands, possession or knowledge, and settle and abide the order and judgment of the court in the premises. The cause came to a hearing in the orphans’ court, in September 1795 ; when a motion was made by McClay’s counsel, that Robert Harris and John A. Hanna should answer on oath, to a charge of having received money for the sale of sundry lots, which had been conveyed to them by the testator, by absolute deed, on a secret trust to be accountable for the proceeds of the sales ; and that they should bring the said proceeds into their administration account, and charge themselves therewith. The Court determined:—1st. That the said Harris and Hanna, should not be obliged to answer on their oath to the said charge: and 2d. That the *1811 P-a^iff should ^not be allowed to produce evidence, to substantiate J the truth of his charge against the said John A. Hanna; but that the account of the said Harris and Hanna, as then exhibited to the court, should be received and passed. The plaintiff appealed from this judgment; and the cause came up on the appeal. 138 1799] OF PENNSYLVANIA. 161 Ewalt v. Highlands. After argument, by W. Tilghman and Dallas, for the appellant; and by Ingersoll, for the appellees, The Court dismissed the appeal, because it did not appear, that the orphans’ court had pronounced a definitive decree. Ewalt’s Lessee v. Highlands, (a) Settlement. Personal residence must accompany every settlement, on which a survey can be regularly made, unless such danger exists, as would prevent a man of reasonable firmness from remaining on the land; and even then, the animus residendi must appear: deadening an acre or two of timber, planting a few peach-stones, apple-seeds and potatoes, can never be circumstances amounting to a settlement, though a cabin should also be put up, if the party resides at a distance, and no tenant actually occupies the land. (6) Ejectment for 400 acres of land at Gerty’s Run, across the Allegheny, the plaintiff claiming under settlement and survey. From the evidence, it appeared, that on the 30th of April 1792, the lessor of the plaintiff passed the Allegheny, with two hands, to make an improvement; that they dead ened about one acre of wood, returned, and about two weeks afterwards, went over again, and deadened a little more wood ; that a cabin was erected, with a clap-board roof, eight feet square, and logs cut out for a door; that a fefr peach-stones, apple-seeds and potatoes were planted; but no other improvements were made ; and neither the lessor of the plaintiff, nor any tenant for him, resided on the land. On the 9th of April 1794, a survey was made by Jonathan Leet, the deputy-surveyor of the district, under this settlement. On the 10th of Feruary 1796, Ewalt leased the land to P. Smith, who went over the Allegheny, kindled a fire in the cabin, stayed there an hour, and then removed; but Ewalt and his family constantly resided on the east side of the river ; while, on the other hand, the defendant and his family lived for three years on the premises. I. When Leet’s survey was offered in evidence, the defendant’s counsel objected; but it was admitted by The Court, upon the ground, “ that in cases of title, under settlement and improvement of lands, north and west of the rivers Ohio and Allegheny and Conewango creek, the deputy-surveyor must, in the first instance, judge of the right; though subject to the opinion of the court and jury.” II. In delivering the charge, the following sentiments were expressed. By the Court.—It is now the province and the duty of the court and jury to decide, whether the survey in question was properly made, under the act of the 3d of April 1792. (3 Dall. Laws, 209.) The act itself has laid down no general rule *ascertaining what kind and extent of settle-ment and improvement will warrant a survey ; nor is it the intention 162 (a) Tried at Pittsburgh, May 1799, before Yeates and Smith, Justices. (5) The following cases are among the earliest and most interesting on this subject: Commonwealth ®. Coxe, post, p. 170; Morris’s Lessee ®. Neighman, post, p. 209; s. c. 2 Yeates, 450 ; McLaughlin’s Lessee ®. Dawson, post, p. 221; s. c. 3 Yeates, 61; Balfour’s Lessee v. Meade, post, p. 363; s. c. 1 W. 0. C. 18; Huidekoper’s Lessee ®. Douglass, post, p. 392; s. c. 3 Or. 1, and 1 W. 0. C. 258; s. p. Lessee of Huidekoper ®. Burrus, Id. 109; Huidekoper ®. McClean, Id. 1&6. 139 162 SUPREME COURT [Sept. Ball v. Dennison. of the court, upon the present occasion, to lay down any general rule upon the subject. It may, however, be observed, that personal residence must accompany any settlement, on which a survey can be regurlarly made; unless such danger exists, as would prevent a man of reasonable firmness from remaining on the land ; and even then, the animus residendi must appear. Again, though we agree, that what constitutes a settlement will essentially depend on the circumstances of each case ; we may state, negatively, that deadening an acre or two of timber, planting a few peach-stones, a few apple-seeds, or a few grains of corn, can never be deemed circumstances, amounting in themselves, to a settlement, in any case, though a cabin should also be put up, if the party resides at a distance, and no tenant actually occupies the land. If these can give no legal preference, much less will, it be deemed a case of preference, contemplated by the act of assembly, that a man has set his foot, or his heart, on a tract, and claims it as his own. It is hardly necessary to add, that we do not think the acts of the lessor of the plaintiff, in the present case, constituted such an actual settlement, as authorized a survey ; and consequently, he has no title to recover the land. The plaintiff’s counsel, finding the opinion of the Court thus decidedly against him, suffered a nonsuit. Brackenridge, for the plaintiff. JFbocZs and Collins, for the defendant. ♦163] *SEPTEMBER TERM, 1799. Ball v. Dennison. • Notice of nonrpa/gment. When a promissory note has been dishonored by the maker, the indorser is not liable to pay it, if the holder neglects to give him due notice of non-payment. What is due notice is, in Pennsylvania, a matter of fact to be decided by the jury, (a) This was an action brought by the indorsee against the indorser of a promissory note for $5000, made by Samuel Emory, on the 26th of December 1795, and payable 65 days after sight. The maker failing to pay the note, it was regularly protested, on the 3d of March 1796 ; and the only question agitated upon the trial, was, whether reasonable notice of the non-payment was given to the indorser, or due diligence employed to give it ? The material facts were these : Emory and Dennison had purchased from the managers of the Schuylkill canal lottery, a number of tickets, for which a note was given to the president, the plaintiff in this action. The purchasers settled their accounts of the speculation, before the note became due, in consequence of which Emmory was bound to pay the note; but when it became due, Dennison agreed to continue his indorsement for the accommodation of Emory, though the joint interest had ceased ; and (a) See Donaldson Means, ante, p. 109 ; Bank of North America Pettit, ante, p. 127. uni 1799] OF PENNSYLVANIA. Ball v. Dennison. 163 the plaintiff, by way of renewal, at the instance of Emory, took the note on which the present action was instituted. Dennison was not a permanent inhabitant of Philadelphia, but was domiciled at Havre de Grace, in Maryland. He had, however, an agent in Philadelphia, to whom the banks, in consequence of written instructions, delivered the notices of his paper engagements, payable there, on which he was maker (not indorser), during the years 1795 and 1796 ; and who, constantly, for that period, made the necessary payments ; nor would he have hesitated (he declared) to pay the present note, if he had been informed of the default of the maker. It appeared likewise, that Dennison was, occasionally, in the city of Philadelphia, in the months of February, March, April, May, June, August and September 1796 ; and *in the month of May, Emory informed him of the protest; but at the same time, declared that he had made pre- L paration to discharge the note. On the other hand, it was proved, that after the default of the maker, particular and repeated inquiry was made for the indorser, by the notary, as well from Emory as others; that the indorser was not then in Philadelphia, and the notary did not himself know that he had an agent here, for such purposes, though he knew there were transactions of business between him and the person who was said to have been his agent; that the notary heard Dennison lived at Havre de Grace, but at the same time, was told, he had gone to the eastward ; that as soon as the plaintiff understood that Dennison was in the city (about six weeks or two months after the protest), the plaintiff’s clerk called on Dennison, mentioned the facts, and demanded payment; when Dennison said, that he had received no part of the proceeds of the lottery-tickets ; but that he would urge Emory to discharge the note. The defendant's counsel contended, on these facts, that there was not reasonable notice of the protest of the note, nor due diligence to give it: that under the circumstances of the case, the defendant was not under a moral obligation to pay the note, and might fairly take advantage of the strict rule of law, according to 1 Dall. 234, 252, 270 ; 2 Ibid. 158, 192 ; that no notice was given to the indorser, until May 1796, though he was occasionally here, before that time, and subsequent to the protest; though he had an agent here ; and though he lived in a neighboring state, to which the post would have carried notice, in the course of a few days ; and that actual knowledge of non-payment is not sufficient to charge an indorser, unless the information is received promptly from the holder, with notice that he looked to the indorser for payment: Kyd on Bills, 79 ; 1 T. R. 167 ; 5 Burr. 2670 ; 1 T. R. 712. The plaintiff's counsel insisted, that as the private arrangement between Dennison and Emory was unknown to the plaintiff, his claim upon the defendant, in morality, as well as law, could not be impaired by it; that the law was not controverted, on the authority of the cases cited ; but still it left the matter of fact to be ascertained, what was reasonable notice of protest, under all the circumstances of the case? That the first important feature of the case exhibits the defendant as a non-resident of Philadelphia, a mere transient visiter ; that notice sent south to Havre de Grace, when it was- known he had gone north, would have been useless and idle; that the notary did not know, and the evidence is, otherwise, uncertain, in the 141 164 SUPREME COURT [Sept. Ball v. Dennison. instance of the defendant’s being an indorser, that he had any agent in Philadelphia : and that due and diligent inquiry was made for the indorser in Philadelphia, where the consideration arose, and the note was given. *As to the cases cited for the defendant, they are susceptible of J answers, easily distinguishing them from the present case. Thus, in 1 Dall. 234, 270, the bill was kept two years and a half ; the indorser lived in Poughkeepsie, only 130 miles distant; he was a man of note, in extensive business, and actually had some transactions with another of the indorsers. In 1 Dall. 252, the note was protested for non-payment on the 12th of June 1786 ; on the 5th of July and 23d of August, the plaintiff received partial payments from the maker ; and it was not until after the last date, when the maker had become embarrassed, that notice was given to the indorser; who, during the whole time, lived and kept a counting-house in Philadelphia. In 2 Dall. 158, both parties lived in Philadelphia; and the jury thought three or four days was not too late to give notice. In 2 Dall. 192, the bill of exchange was drawn in September 1781, presented and refused acceptance in November 1781, and protested for non-payment in August 1782 ; but no notice was given to the indorser until the beginning of the year 1790. When the bill was presented, the drawee had funds of the drawer in his hands ; but he had paid the amount to the drawer’s agent, who died, and whose wife had lost the money. Shippen, Justice, (a)—The cause depends upon one point, which is a matter of fact. The general law is, that when a promissory note is dishonored by the maker, the indorser becomes immediately liable; and the holder is entitled to recover the amount from him, unless he is discharged by the act of the holder, either in giving further time or credit to the maker; or in neglecting to give the indorser due notice of the non-payment. This notice is indispensable : so much so, that it is immaterial, whether the maker becomes insolvent before the notice, or not. Still, however, what constitutes due notice, is a point to be settled. In England (where it is regarded as a question of law), the rule is strict and positive, that the notice must be given on the next day, if the parties live in the same place; and by the next post, if they live in different places. But in Pennsylvania, it has hitherto been regarded as a matter of fact, to be decided by a jury, under all the circumstances of each case, as it arises. In deciding it, however, the jury will always be governed by a sound and reasonable discretion. They will allow but a short time for giving notice, where the parties reside in the same town ; for, six weeks, in such a case, would certainly be too long; and fo giving notice in different parts of the country, they will bring into the calculation of a reasonable time, the facility of the post, the state of the roads, and the dispersion of the inhabitants in relation to the post-towns. ««1 *With these prefatory remarks, let us review the circumstances of -• the present case. The note was duly protested for non-payment; the notary, at the same time made diligent inquiry after the indorser ; particularly from the maker, who was most likely to possess the necessary information. He heard that the indorser lived at Havre de Grace, but was then gone to the eastward. Proof has also been given of Dennison’s repeatedly (a) Shippen and Smith, Justices, were the only judges on the bench, at the trial of this cause. 142 1799] OF PENNSYLVANIA. Levy v. Wallis. 166 visiting Philadelphia, after the protest; but it is not proved, that the plain tiff was acquainted with the fact; and without that proof, he cannot be legally charged with laches. It is proved, that J. B. Bond was Dennison’s general agent in Philadelphia ; but it is not proved, that he was a public known agent; nor (which is again essential to affect the plaintiff’s claim) that the plaintiff was apprised of the agency. As to the fact that Dennison lived at Havre de Grace ; and as to the argument, that notice ought to be given, wherever the indorser lives ; it is important to remember, that the commencement of the transaction was in Philadelphia; that the note was dated there; and that all the parties contemplated Philadelphia as the place of payment. Besides, it would interrupt the negotiability of notes, and greatly embarrass the general operations of commercial credit, if an indorser was entitled to notice, on the strict terms suggested, though he lived in the East, or the West Indies ; or though he was a mere itinerant, constantly shifting the place of his abode, and the scene of his business. It is, therefore, an object of leading influence, in the decision of this cause, to consider whether, under all the circumstances in proof, the plaintiff was bound to inquire for the defendant, beyond the city of Philadelphia ? The case of Steinmetz v. Curry, 1 Dall. 234, 270, ought not to be a guide on the occasion ; for there, the bill was kept by the holder for two years and a half, without giving notice to an indorser, who was known to reside constantly at Poughkeepsie, in New York. But upon the whole, it appears to the court, that the plaintiff did make a prompt inquiry for the indorser, in the city of Philadelphia ; and that the defendant has not sufficiently established those facts, which would have made it incumbent upon him, either to send notice to Havre de Grace, or to serve notice upon the agent in Philadelphia. If the jury concur in the opinion, they will find for the plaintiff ; but if they do not, it is their right, and their duty, to find for the defendant. Verdict (delivered without the jury’s retiring from the bar) for the plaintiff, $6051.13, and six cents costs. *DECEMBER TERM, 1799. [*167 Levy v. Wallis. Presumption of fraud. The act of suffering goods to remain in the hands of the defendant, after they have been levied on, furnishes no presumption of fraud; but if the intention of leaving them is fraudulent, a subsequent execution will be preferred, (a) In this case, a testatimfi. fa. issued on the 27th of December 1798, returnable to March term 1799, which was levied on twelve horses. A venditioni (a) In the United States courts, the decisions all sustain the principle, that when goods, of whatever kind they may be, upon which a levy has been made, are left in the possession of the defendant, by the permission of the plaintiff—or where proceedings are stayed, before a levy is actually made, though after the writ has been placed in the ands of the sheriff, the levy is void, as to a subsequent execution-creditor, or a bond fide purchaser; and there is no distinction between a suspension for one day, or one or 143 167 SUPREME COURT [Dec. Levy v. Wallis. exponas issued to September term 1799 ; and an alias vend. exp. issued to December term 1799. On the last writ, the sheriff returned, that he had sold the horses to the amount of $1021; that Thomas Hamilton had bought seven of the horses for $630 ; but that, both before and after the sale, he had given written notice, that he claimed the money arising on the sales, by virtue of a levy previously made for him, upon an execution, by the former sheriff: and that, therefore, he claimed to retain the amount of his purchases, in part satisfaction of his execution; and the remaining money of the sales aforesaid, the said sheriff has ready, &c. From the records, it appeared, that Hamilton had issued ^fi. fa. against Wallis, on the 25th of January, returnable to March term 1798, which was levied (inter alia) upon seven horses; and that on the 11th of December 1798, a vend. exp. issued, but was never prosecuted. It also appeared, that in the case of Ferity executor, y. Wallis, a testatum fl. fa. had issued to March term 1797, which was levied (inter alia) upon seven horses ; that a vend. exp. issued; that an alias vend. exp. issued to September term 1798, on which the sales were put off, at the risk of the plaintiff ; and that &pluries vend. exp. issued to September term 1799. The general question was, whether the prior execution-creditors, Hamilton and Perit, had not lost their liens, by allowing the property levied upon to remain in the hands of the defendant ? The Court declared, that it had been repeatedly determined, and was *icq1 beoome the settled law of Pennsylvania, that the act of *suffering J goods to remain in the hands of the defendant, after they were levied upon, furnished no presumption of fraud here, as it did in England; and that more months. But the force and effect of the writ or levy may be restored by a countermand. It is not, however, necessary, that the officer should remove or sell the property immediately, but it must be removed or sold within a reasonable time. United States Conyngham, Wall. 0. C. 178; Barnes ®. Billington, 1 W. C. C. 29; Berry ®. Smith, 3 Id. 60. The rule adopted by the supreme court of Pennsylvania is, that if, after a levy upon goods, other than household furniture, the plaintiff suffers them to remain in the possession of the defendant, while they so remain, the lien of the execution is lost The exception of household furniture was allowed from sentiments of humanity, and the peculiar necessities of the country at the time. Chancellor v. Phillips, post, p. 213 ; Eberle v. Mayer, 1 Rawle 366. But this exemption ought not to be extended to all the furniture of an innkeeper ; and whether the exception ought to embrace all a debtor’s furniture, however valuable, without limitation, may, perhaps, at some time, be worthy of serious investigation. The exemption of any species of property is to be regretted, as every day’s experience shows, that it tends to produce collusion and fraud. (Rogers, J., 8 Rawle 343.) Even in the case of household furniture, if the plaintiff directs the sheriff to stay proceedings, until further orders, levy to remain, it is a waiver of his priority, in favor of a second execution, received by the sheriff, during the continuance of the stay. Commonwealth v. Strembeck, 3 Rawle 341. It is not necessary that the officer should remove the property, nor put a person in charge of the goods, nor sell them immediately, but this must be done within a reasonable time. Ibid. In general, all executions issued, or kept on foot, with intent to delay, hinder and defraud creditors, are avoided by statute 13 Eliz. If, therefore, the sale of personal property levied on, is hindered by the management of an executioncreditor, he will be postponed to a subsequent one. Snyder v. Kunkleman, 3 P. & W. 487. See also Water’s Executors v. McClellan, post, p. 208, and note. 144. 1799] OF PENNSYLVANIA. 168 Kesselman v. Old. this departure from the English rule arose from sentiments of humanity; and the peculiar necessities of the country. In the interior of the state, particularly, it was the universal practice not to remove the goods, after a levy. If, however, the intention of leaving them with the defendant was fraudulent, a subsequent execution would be preferred, in Pennsylvania, as well as m England. In the present instance, there is no proof of fraud ; the first levies are, of course, good; and the sheriff must pay the money arising from the sales accordingly, (a) Pemberton’s Lessee v. Hicks. Forfeiture. A tenant by the curtesy initiate, has not an estate forfeitable upon his attainder for treason. This cause (which was argued in December term 1798, 3 Dall. 479) was kept under advisement, until the 23d of December 1799, when Shippen, Chief Justice, and Yeates, Justice, were of opinion with the plaintiff, and Smith, Justice, was of opinion with the defendant. Judgment for the plaintiff. (S) Hesselman’s Lessee v. Old. (c) Collateral warranty. A collateral warranty of an ancestor, who had no estate, in possession, of the premises, is an estoppel to his heir. ( or judicial practice; and Consequently, that the collateral J warranty of the ancestor operated as an estoppel to his heir, the plaintiff.1 Judgment for the defendant. Reed v. Ingraham, (a) Negotiable instrument. A contract to receive from J. B., or order, certain stocks, is negotiable. On a motion for a new trial, this cause came again before the court (3 Dall. 505), but after argument, the judges cited 4 T. R.; 2 Bl. 1269; and declared, that they were confirmed, upon mature deliberation, in the opinion, which had been given in charge to the jury, that the action was well brought in the name of the assignee of the stock-contract, promising to receive a transfer from “ J. B. or order.” Judgment for the plaintiff. ♦170] ♦MARCH TERM, 1800. Commonwealth v. Tench Coxe, Esq. Settlement.—Holla/nd La/nd Company. The settlement and residence made necessary by sect. 9th of the act of 1792, within the times respectively mentioned therein, are not excused by the proviso in the same section; but if a warrant-holder has been prevented from making such settlement, or has been driven therefrom, by force of arms, and has persisted in his endeavors to make such settlement, no advantage can be taken of him, from want of a successive continuation of his settlement.2 Yeates and Smith, J J., and Shippen, C. J., dissenting. If the condition of a grant by the commonwealth has not been fulfilled, advantage can only be taken of a breach of a condition, by the commonwealth, in a method prescribed by law.8 Quoere ? Whether a mandamus can be issued against the secretary of the land-office, commanding him to prepare and deliver patents in favor of a warrantee of a tract of land.4 In September term last, a rule was obtained, on behalf of a number of persons, who had associated under the denomination of “ The Holland Company,” for the purchase and settlement of lands, lying in the county of Allegheny, north and west of the rivers Ohio and Allegheny, and west of (a) s. c. 2 Yeates 487, where there is a full report of the case. 1 But the collateral warranty only descends upon the eldest son, the heir at common law. Jourdan v. Jourdan, 9 S. & R. 268. 2 Attorney-General v. The Grantees, post. p. 237 ; Patterson 1, Ross, 22 Penn. St. 340. 146 3 Morris v. Neighman, post, p. 209; s. c. 2 Yeates 450; Wilkins v. Allenton, 3 Id. 273; Eddy v. Faulkner, Id. 580. 4 See Commonwealth v. Cochran, 5 Binn. 87. 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 179 Conewango creek, by which the secretary of the land-office was directed to show cause why a mandamus should not be awarded, commanding him to prepare and deliver patents to the company, for various tracts of land, for which warrants had previously issued in their favor, under the act of the general assembly, passed the 3d of April 1792. The attorney-general (McKeari), M. Levy, W. Tilghman and Cooper, now showed cause for discharging the rule ; and Lewis, E. Tilghman, Ingersoll and Dallas, argued for making it absolute. In order, however, to introduce, with perspicuity and advantage, a discussion of the important question involved in this case, it is necessary to give a general view of the facts and circumstances, which produced the controversy. By the charter granted to William Penn, on the 14th of March 1681, he became the proprietor of the soil embraced within the boundaries of Pennsylvania. The charter title, however, was fortified, as well since, as before the revolution, by successive purchases from the Indians ; whose claim may be considered as fairly and finally extinguished, throughout the territory of the state, by the treaty of Fort Stanwix, on the 23d of October 1784; and the treaty of Fort McIntosh, on the 21st of January 1785. (a) Independently *too, of the charter, the boundaries of the state have been defined and enlarged, by judicial decisions, by compact and by purchase. A * controversy on the subject early arose between the proprietaries of Pennsylvania and Maryland ; which was finally adjusted in the year 1750, by a decree in the chancery of England, enforcing the specific performance of an agreement, which the parties had entered into in the year 1732.(5) The visionary and extravagant pretensions of Connecticut, extending to lands westward, as far as the South Sea, began to annoy the peace of Pennsylvania so early as the year 1753 ;(c) and although the rights of sovereignty and jurisdiction, after much irritation and conflict, were, at last, in the year 1782, authoritatively decided to belong to the latter state, the intruders under the spurious title of Connecticut continued to assert a private right of soil over a considerable tract of Pennsylvania, (d) The western line of the charter boundary, corresponding with the meanders of the river Delaware, remained undefined by actual survey ; and it was, for a while, difficult to ascertain the limits between the jurisdiction of Pennsylvania and Virginia; but the two states, actuated by a just and friendly spirit of compromise, appointed commissioners to run a line of separation; and their report upon the subject was adopted and established in the year 1784. (e) On similar principles, the jurisdiction and property of the islands in the river Delaware had been settled between Pennsylvania and New Jersey in the year 1783. (^) And in the year 1792, the state completed the present range (a) For a reference to the purchases from the Indians, and to the laws respecting landsand the land-office, see 1 Dall. Laws, 5, 39, 248, 503, 891, 908; 2 Id. 21, 201; 3 Id. 209, and generally the proper titles to the index of that work. (5) See Proud’s History of Pennsylvania, 1 vol., 187; Penn v. Baltimore, Cases in Chancery, temp. Ld. Hardwicke, 332; s. c. 1 Ves. 444. (c) For a history of the rise and progress of the claim, see a pamphlet published in the year 1774, by Dr. William Smith, the late provost of the college of Philadelphia. (d) For the proceedings, which terminated in the decree of Trenton, see the Journals of Congress, for the year 1781, vol. 7, p. 169, 171, &c. (e) See 2 Dall. Laws, 207. (g) See 2 DalL Laws, 143. . 147 171 SUPREME COURT Commonwealth v. Coxe. [March of her territory, by obtaining a formal grant from the United States of a triangular tract of land, bounded by lake Erie ; which tract had been ceded and relinquished by resolutions of congress of the 6th of June, and 4th of September 1788 ; and the Indian title was purchased, and extinguished by commissioners, appointed by the state, in January 1789. The settlement and cultivation of Pennsylvania have, at all times, been the favorite objects of her government. The proprietaries, while the soil and jurisdiction were vested in them, resisted every attempt of individuals to purchase lands from the Indians ; but permitted a free access to the landoffice, or board of commissioners which they instituted, either for the purpose of obtaining original grants, or for the purpose of completing equitable *721 titles, within the territory over which they had themselves extin- ■* guished the Indian claim. The ownership of the unappropriate soil naturally passed with the political sovereignty, from the proprietaries to the commonwealth, upon the principles of the revolution; and accordingly, the legislature, on the 27th of November 1779, assumed the general territorial rights of the proprietaries ; but at the same time, confirmed to them all their private estates, and such proprietary tenths of manors, with the rents reserved on them, as had been surveyed and returned into the land-office, before the 4th of July 1776 : granting also a sum of 130,000?. sterling to the Penn family, as a mark of gratitude for the services of the founder of Pennsylvania, (a) This change in the ownership of the soil rendered it necessary to provide, under the authority of the state, for pre-existing claims to particular tracts of land, taken up and located under the proprietary grants, warrants and other office-rights. With that view, exclusively, a landoffice was opened in the year 1781; (6) and in the ensuing year, a board of property was instituted, with power “ to hear and determine in all cases of controversy or caveats, in all matters of difficulty or irregularity, touching escheats, warrants on escheats, warrants to agree, rights of pre-emption, promises, imperfect titles or otherwise, which heretofore have, or hereafter may arise, in transacting the business of the land-office.”(c) The earliest direct appropriations of any of the territory of the state for public use, subsequent to the revolution, were two provisions; the first for laying off a tract of land, to redeem the depreciation certificates which had been issued to the officers and soldiers of the Pennsylvania line ; and the second, for laying off another tract of land, to satisfy the donation which had been promised to the same troops, by a legislative vote of the 7th of March 1780 ; both tracts lying north and west of the rivers Ohio and Allegheny and Conewango creek. (er centum ior roads. The manner of locating, surveying and securing to the respective purchasers the tracts of land claimed, either upon warrants upon actual settlements completed, or upon actual settlements commenced, may easily be traced in the several sections of the act; but as the present case depends particularly on a construction of the 9th section, it is proper to recite it here at large : “ And be it further enacted, &c., that no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating, at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing, or causing a family to reside thereon, for the space of five years next following his first settlement of the same, if he, or she, shall so long live; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth, to issue new warrants to other actual settlers, for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made, in pursuance thereof, and so as often as default shall be made, for the time and in the manner aforesaid; which new grants shall be under and subject to all and every the regulations contained in this act: Provided always, nevertheless, that if any such actual settler,, or any grantee in any *such original or succeeding warrant shall, by force of arms of the enemies of the L United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands; in the same manner as if the actual settlement had been made and continued. (3 Dall. Laws, 212.) 149 » ' ' I ' I I 174 SUPREME COURT [March Commonwealth v. Coxe. As the dispensation contained in the proviso was to operate only in the case of an existing warfare, it was stated in the discussion of the present case, that, in fact, hostilities between the United States and the Indians, were never so entirely discontinued, from the period of the revolutionary contest, until General Wayne’s treaty in the year 1795, as to render it practicable, with safety, to make actual settlements upon the lands in question. The position was shown, historically, from the military operations of the federal and state governments; judicially, from the opinions of the courts of justice ; and experimentally, from the evidence of disinterested individuals. Thus, After the European peace of 1783, an army was always maintained on the western frontier. During several years, General Harmer was employed in making hostile incursions into the Indian country ; and in the year 1790, he was defeated. The progress of General St. Clair terminated also in defeat, on the 4th of November 1791, only five months previously to the date of the law. General Wayne succeeded to the command, prosecuted the war with vigor, and completely routed the enemy in the year 1794. This victory produced a treaty, which was signed on the 3d of August 1795, and was ratified on the 22d of December following. While these events occurred, the north-western frontier of Pennsylvania was constantly exposed to the sanguinary incursions of the Indians ; many lives were lost; and in the very description of the proviso to the 9th section of the act, every actual settler or grantee was, “by force of arms of the enemies of the United States either prevented from making an actual settlement, or driven from it.” The state of Pennsylvania, co-operating with the federal government, before the act passed, in the very session in which it passed, and so late as December 1795, called out parties of the militia, raised regular troops, and established military posts ; and at one period, while negotiations for peace were carrying on, the state suspended her settlements, and plans of defence, in the country bordering on lake Erie, at the request of the federal government, lest the enemy might take umbrage and break off the treaty, (a) In fine, the result of these circumstances to prevent making and continuing actual settlements, during the Indian war, has been repeatedly recognised in the western county courts, and in the courts of Nisi Prius, held by the judges of the supreme court in Allegheny county, subsequent to the ratification of General Wayne’s treaty. (¿») But the dispensation contained in the proviso, is likewise qualified with a stipulation, that the actual settler or grantee in any warrant, “ shall per- (a) For the various military measures pursued by the state government, and the general opinion of danger, see the following laws, and the entries in the journals of the senate: 3 Dall. Laws, 19,17th March 1791; 1 Journ. Sen. 272-3, 24th August 1791; Ibid. 27, 29, 37, 47, 54, December 1791, and January 1792; 3 Dall. Laws, 177, 20th January 1792; 2 Journ. Sen., 8th December 1792; 3 Dall. Laws, 335, 3d April 1793; 2 Journ. Sen., 288, 29th August, 1793; lb. 294, 4th September 1793 ; lb. 5th December 1793; 3 Dall. Laws, 464, § 2, 3, 28th February, 1794; lb. 483, 8th April 1794; 2 Journ. Sen., 264-5, 2d September 1794 ; 3 Dall. Laws, 757, 13th April 1795 ; lb. 763, § 13,14. (5) See Ewalt’s Lessee v. Highland, ante, p. 161. McLaughlin’s Lessee v. Dawson, post, p. 221; and Morris’s Lessee®. Neighman, post, p. 209. Since this report was pre- 150 1800] OF PENNSYLVANIA. 175 Commonwealth v. Coxe. gist in his endeavors to make such actual settlement ” as the law describes. The perseverance of the Holland Company, in time, in labor, and in money, was, therefore, exhibited in detail upon the present occasion. It appeared from various official documents and depositions, that the company had purchased and paid for 1162 tracts, of 400 acres each, situated in districts No. 1, 2, 3, 6 and 7, and that for these tracts, warrants of survey were issued, dated, respectively, in the months of April 1792, and of April and August 1793. From the day of issuing the warrants, until the present day, the endeavor of the company and their agents, to occupy, improve and settle the lands, has been incessant. Thus, as soon after the dates of the warrants, as the deputy-surveyors could be prevailed upon to attempt to execute the surveys, in the years 1794 and 1795, a general agent was appointed to superintend the business of the company, a large store was built at Cassewago, or Meade-ville, and a sum exceeding $5000 was actually disbursed. In the year 1796, companies of settlers were invited, encouraged and engaged ; ample supplies of provisions, implements, utensils, &c., were sent into the country; the expenses of transporting families were liberally advanced ; a bounty of one hundred acres was given for improving and settling each tract; and a further sum of about $22,000 was actually disbursed.. In the year 1797, a sum of about $60,000 was further expended, in promoting the same objects, including payments *on contracts for settle-ment, and quieting adverse claims. In the year 1798, mills were L erected, roads were opened, and other exertions were made, at a charge of not less than $30,000. In the year 1799, the sum of $40,000 and upwards was expended in improvements and settlements ; in the salaries and wages of agents and workmen ; in opening and repairing roads ; and in patenting 876 tracts of land. And in 1800, the operations and advances of the company will, at least, be equal to those of any preceding year. In short, at the close of the present year, near $400,000 will be expended, according to the following view of the subject. The amount of the purchase of the late James Wilson, Esq., including the purchase-money paid to the state, at the period of obtaining the warrants, was................................ 222,071 10 The amount of disbursements for making improvements, settlements, &c., was ........................................ 157,000 00 The amount of taxes and expenditures, for the year 1800, will be..................................................... 18,000 00 $397,071 10 pared, the same question has been agitated in the circuit court of the United States, in the Lessee of Balfour v. Meade (post, p. 363). The evidence was conclusive, that until the spring of 1796, it was not safe to prosecute settlements in the country lying north and west of the rivers Ohio and Allegheny, and Conewango creek: and although the cause was decided in favor of the defendant, who claimed as an actual settler, upon other grounds, Judge Washington, in his charge to the jury, admitted the fact to be proved, and declared, that where the fact of prevention could avail the party, it operated during the whole war, and for a reasonable time (according to the circumstances of the case) after the treaty of peace. 151 i76 SUPREME COURT Commonwealth v. Coxe. [March And regarding the operations of the company, in another aspect, we find, that the gross amount of the expenditures, upon the quantity of land which remained for them to improve and settle, will furnish an average at the rate of $230 for, each and every tract. For instance : Tracts. The original number of warrants called for,........................... 1162 But, from this aggregate, there must be deducted, on account of prior occupants of the land,....................................113 On account of tracts lost, upon resurveys, in district No. 1, 11 On account of tracts lost, upon resurveys, in district No. 6, 3 On account of bounties to actual settlers, who improved under the company, but at their own charge, one-fourth of 1021 tracts,............................................................259 ----- 386 776 Then, it is seen, that the gross amount of the expenditure to the present period, of $178,000, being equally apportioned to 776 tracts, furnishes, as has been stated, an average disbursement of about $230, for improving each tract; a sum which, in ordinary times, would certainly have been competent to accomplish every improvement designated in the act of the 3d of April 1792. k-wu-] *But leaving these details, for a moment, to contemplate the gen-J eral effect of the capital, industry and enterprise, which the Holland Company have thus employed and displayed; and it is found, that by a conduct the most upright and conciliatory, they have avoided or adjusted every conflicting claim to any part of their purchase ; so that there does not now exist a single caveat on the files of the land-office, against the issuing of any patent they demand. The benefit of their exertions has extended, too, far beyond the limits of their own property : nor are they merely their neighbors who are accommodated and enriched; but the opulence, population and security of the whole range of western frontier have been augmented beyond all calculation. Nay, the influence of the example has been diffused throughout the state, and is felt in every quarter of the Union. Considering the terms of the act of the 3d of April 1792, it became a question at the land-office, in what manner the accomplishment of an actual settlement and residence, within the meaning of the enacting part of the 9th section, should be proved ; and also, upon what evidence the dispensation of the proviso was to be allowed. On the 1st object, the board of property, on the 16th of December 1797, prepared and published the form of a certificate, in the terms of the law, to be signed by the deputy-surveyor of the proper district, and by the district judge, or two justices of the peace, residing in the vicinity of the land : (a) and on the second object, they took the pre- (a) The minute of the board of property, is in these words: At a special meeting of the Board of Property, 16th Dec. 1797. 5 Daniel Brodhead, S. G. 1 j John Hall, Secretary, > T Aa? Francis Johnston, R' G. J Land Office- Resolved, That the following be the form of the certificate to be produced to the secretary of the land-office, before any patents shall issue for land lying north and west 152 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. caution of consulting the attorney-general, upon the form which they had drafted ; and that gentleman, as it appears from the minutes of the board, dated the 21st December 1797, declared “the certificate proposed by them, respecting the lands lying north and west of the rivers *Ohio and Allegheny and Conewango creek, to be unexceptionable, if there was added a clause, conformable to the proviso contained in the ninth section of the act, that where the settler or grantee has been prevented making such settlement, or hath been driven therefrom, by force of arms of the enemies of the United States, and has persisted in his endeavors to make such settlement, he is entitled, as if such settlement had actually been made and continued.”^) *Upon such deliberation, and with such uniformity of opinion, in [*179 of the rivers Ohio and Allegheny, and Conewango creek, and that the same be signed by the proper deputy-surveyor of the district where the land lies, and by the district judge, or two justices of the peace in the vicinity of the said land, and that the secretary cause the said form, with this resolution, to be published in the Pittsburgh Gazette. We do hereby certify, that---------------------hath made, or caused to be made, an actual settlement on a tract of land containing------acres, lying north and west of the rivers Ohio and Allegheny, and Conewango creek, situate, &c. (here describe the land), by clearing, fencing and cultivating at least two acres for every hundred acres, contained in the survey of said tract ; that he hath erected thereon a messuage for the habitation of man, and resided, or caused a family to reside thereon, for the space of five years next following his first settling of the same. • (A true copy.) John Hall, Secretary of the land-office. (a) The proceedings on this subject are as follows : December 21st, 1797. The Board, desirous of establishing a legal form of a certificate, to be produced to the secretary of the land-office, before patents shall issue for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, wrote to Jared Ingersoll, Esq., attorney-general, for his opinion and directions on this subject, to which they received the following reply, viz. : “ Gentlemen, The certificate proposed by you, respecting the lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, appears to me to be unexceptionable in its form, provided you add aclau se conformable to the proviso contained in the 9th section, that where the settler or grantee has been prevented making such settlement, or hath been driven therefrom by force of arms of the enemies of the United States, and has persisted in his endeavors to make such settlement, he is entitled as if such settlement had actually been made and continued.” Whereupon, the board made the following resolution, adopting the annexed form of certificates, viz. : Resolved, That the following be the form of the certificate, or certificates, to be produced to the secretary of the land-office, before any patent or patents shall issue for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, and that the same be signed by the proper deputy-surveyor of the district where the land lies, and by the district judge, or two justices of the peace, in the vicinity of the said land ; and that the secretary cause the same form, with this resolution, to be published in the Pittsburgh Gazette : “We do hereby certify, satisfactory proof having been made to us, that ---------— hath made, or caused to be made, an actual settlement on a tract of land, containing-------- acres, lying north and west of the rivers Ohio and Allegheny and Conewango creek, 153 179 SUPREME COURT [March Commonwealth v. Coxe. *1 Rd °^cers °f the government, the forms of patents as well J *as the forms of the certificates of settlement, or of prevention, were fixed and declared. The Population Company (an association formed on situate, &c. (here describe the land), by clearing, fencing and cultivating at least two acres for every hundred acres contained in the survey of the said tract: that he hath erected, or caused to be erected, a messuage for the habitation of man, and resided, or caused a family to reside thereon, for the space of five years next following his first settling the same.” Or, “We do hereby certify, that------------the grantee or settler, hath been prevented from making a settlement on a tract of land, containing situate, &c.--------conformable to the proviso contained in the 9th section of the act, entitled ‘ An act for the sale of vacant lands within this commonwealth,’ passed the third day of April 1792, by force of arms of the enemies of the United States ; and that he, the said ----------------------------------------------------------------------------, hath persisted in his endeavors to make such settlement.” I certify, that the above and foregoing is a true copy of a minute of the board of property of Pennsylvania, entered in minute of property-book, No. 5, pages 259 and 260, remaining in the office of the secretary of the land-office of Pennsylvania. In testimony whereof, I have hereunto set my hand and seal, in the land-office aforesaid, at Lancaster, this 14th day of February, 1803. Andrew Ellicott, (L. S.) Secretary of the land-office. The form of Patent adopted, in case of Prevention, and issued to the Company. THE COMMONWEALTH OF PENNSYLVANIA, To all to whom these presents shall come, Greeting: Know ye, That in consideration of the moneys paid by (L. S.) THO. MIFFLIN. John Melbeck, into the receiver-general’s office of this com- monwealth, at the granting of the warrant hereinafter mentioned, and of the sum of three pounds, eight shillings and nine pence, lawful money, now paid by Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck, into the said office; and also in consideration of the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck having made it appear to the board of property, that they were, by force of arms of the enemies of the United States, prevented from making such settlement on the hereinafter described tract of land, as is required by the 9th section of an act of the general assembly of this commonwealth, passed the third day of April 1792, entitled “an act for the sale of vacant lands within this commonwealth,” within the time therein mentioned, and that they the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck have persisted in their endeavors to make such settlement, there is granted by the said Commonwealth unto the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck, of the city of Amsterdam, a certain tract*of land called Normandy, situate in the district No. 2, north and west of the rivers Ohio and Allegheny, in Allegheny county, beginning at an ironwood; thence, by land of Charles W. Peale, south, three hundred and twenty perches, to a red oak ; thence, by land of Michael Canner, west, two hundred and thirteen perches, to an oak; thence, by land of William Camron and land of Peter Baynton, north, three hundred and twenty perches, to a white oak; and thence by land of Isaac Paxton, east, two hundred and thirteen perches, to the beginning, containing four hundred and one acres, one hundred and fifty perches, and the allowance of six per cent, for roads, &c. (which said tract was surveyed in pursuance of a warrant, dated the eighteenth day of April 1792, granted 154. 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 180 similar principles and with similar views) received, on the 4th of February 1799, patents for numerous tracts of land, upon exhibiting the proofs of prevention prescribed by the board of property. The Holland Company applied for patents for all their tracts, and have actually received patents for 876 racts ; the other patents being then withheld, merely for the purpose of a resurvey, which the. surveyor-general directed to be made, in consequence of the inaccuracy of the deputy-surveyor. But before the resurvey could be executed, a change had taken place in the land-officers ; a new construction was given to the proviso attached to the 9th section of the act; it was insisted, that no patent could issue, unless the terms of settlement and residence were, at some period, completed, though the obligation to complete them, during the Indian war, was suspended ; and the resolutions and proceedings of the former board of property, on the subject, were not deemed authoritative and conclusive upon the present board. At the same time, a number of persons intruded upon the lands of the warrantees, on the pretence that the forfeiture for non-settlement was absolute, at the expiration of two years from the date of the warrants, and set up claims as actual settlers. When, therefore, the Holland Company renewed their applications for the rest of their patents, the secretary of the land-office refused to issue them ; and the present motion, was made, to compel him to do so, as an official duty, by a writ of mandamus.(a) Such were the circumstances (collected from evidence of unquestionable notoriety, from testimony in the cause, or from concessions of counsel) upon which the controversy arose. The general question was, whether the Holland Company had performed the condition of improvement, settlement and residence, annexed to the sale of the lands : or were released, by the operation of the proviso to the 9th section of the act, from the obligation to perform it ? And the arguments in support of the rule, embraced three distinct objects of inquiry: 1st. The facts relative to the hostile state of the country, and the persevering endeavors of the Holland Company to accomplish the to the said John Melbeck, who by deed, dated the fifth day of January 1791, conveyed the said tract to the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck, with the appurtenances. To have and to hold the said tract or parcel of land, with the appurtenances, unto the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck, their heirs and assigns, to the use of the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven and Rutgert Jan Schimmelpenninck, their heirs and assigns for ever, free and clear of all restrictions and reservations as to mines, royalties, quit-rents or otherwise, excepting and reserving only the fifth part of all gold and silver ore, for the use of this commonwealth, to be delivered at the pit’s mouth, clear of all charges. In Witness whereof, Thomas Mifflin, governor of the said commonwealth, hath hereto set his hand, and caused the state seal to be hereunto affixed, the seventh day of October, in the year of our Lord, one thousand seven hundred and ninety-nine, and of the commonwealth, the twenty-fourth. Attest, James Trimble, Dep. Sec’ry. (a) Several objections were made, in the course of the argument, to the form of the certificates produced by the Holland Company; but these and other objections in ’point of form, eventually yielded to a discussion and decision of the general question. 155 léo SUPREME COURT Commonwealth v. Coxe. [March settlement prescribed by the act. 2d. The construction of the proviso attached to the 9th section of the act. 3d. The propriety of proceeding, in this case, by mandamus. I. Of the facts relative to the hostile state of the country ; and the persevering endeavors of the Holland Company, to accomplish the settlement prescribed by the act. * Whatever may be the effect of the proviso in suspending or releasing the obligation to settle and improve the land, the case in which it operates cannot be mistaken. If a grantee in any warrant is prevented, by force of arms of the enemies of the United States, from making an actual settlement, it is the express case of the proviso : but it will not be contended, that the force of arms, here mentioned, means an actual application of military force, the tomahawk, or the rifle, either to drive a man from, his settlement, or to prevent his entering upon the land, with a view to settle it. A well-grounded apprehension of personal violence and danger, from a public enemy ; a terror arising from the force of arms in the neighborhood ; are equally within the spirit and protection of the law. The actual state of hostility is proved in every possible way. The army of the United States was opposed to the Indians, as to a public enemy, and with various success, from the year 1783 to the year 1795. At the time of passing the act of the 3d of April 1792 (and, certainly, this fact furnished the inducement for inserting the proviso to the 9th section), the whole of the north-western frontier of Pennsylvania was in constant danger and al^rm. For some time after the act was passed, the deputy-surveyors did not dare to venture upon the execution of the duties of their office. And until the spring of 1796, not an actual settler inhabited the country, except, perhaps, a few bold and enterprising men, in the vicinity of a garrison. But the constitution of the United States has declared “ that no state shall, without the consent of congress, lay any duty of tonnage, keep troops or ships of war, in time of peace, &c., or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” Art. I. § 10. Now, the state of Pennsylvania did raise and maintain troops, for the defence of her western frontier, from the 17th of March 1791, until the spring of the year 1796, alleging “that there was imminent danger of being invaded by the Indian tribes, then at war with the United States ; and that it was necessary to take immediate and vigorous measures to prevent hostile incursions, and to provide for the security of the frontier inhabitants of this commonwealth.” The military operations of the state must, therefore, be regarded, on constitutional ground, as the best evidence that a war existed ; and the effects of that war, in preventing the settlement and occupancy of lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, cannot be more forcibly portrayed, than in the legislative and executive declarations and acts of the government. The judicial authority, indeed, has already settled the fact, that hostilities existed from the time of passing the act, until the ratification of General Wayne’s treaty ; and without limiting the operation of the fact to a mere suspension of the condition *1821 settlement, improvement and residence, the operation, so far, *at -1 least, was expressly recognised, during the continuance of hostilities, in the case of Morris's Lessee v. Neighman [post, p. 209). 156 1800] OF PENNSYLVANIA. 182 Commonwealth v. Coxe. But notwithstanding the hostile state of the country, the Holland Company commenced and prosecuted their attempts to settle and improve the land, during the whole period of the war, in a manner equally meritorious and beneficial. It is true, perhaps, that an attempt was not made to settle each particular tract; but the general effort to settle the whole, was all that could be reasonably expected, under such circumstances ; a combinatiqn of force and capital could alone diminish the danger to be encountered ; and the result greatly contributed to establish a barrier against the incursions of the Indians. To the exertions during the years 1794 and 1795, while the war continued, must be added the perseverance« of the company, in their endeavors to settle and improve in every subsequent year. During the war, the disbursements for purchase money, and charges of improvement, amounted to near $230,000 ; and since the war, besides the allowance to settlers, the disbursements of cash have exceeded $178,000. Nor ought it to b.e forgotten, that after the dangers of war had ceased, another evil, almost as embarrassing, interrupted, annoyed and, in many instances, frustrated the endeavors of the company. Rumors, raised and circulated by artful and interested men, and countenanced by the obscure and equivocal language of the law, were heard to insinuate, that the warrantees had incurred a forfeiture of their lands, by the lapse of two years from the dates of the warrants, notwithstanding the terms of the proviso. Some of those persons who had engaged to settle for the company, began to assert a right of settlement for themselves. Hordes of intruders were pressing eagerly into the possession of the best tracts ; and in short, such was the doubt and solicitude universally excited upon this question of forfeiture, that the warrantees could hardly obtain assistance, in the business of settlement and improvement, upon the most liberal terms of participation in the land, or payment of expenses. Although these occurrences will sufficiently show the impracticability of settling each particular tract, even since the peace ; and although they increased the difficulties to be surmounted, in the general effort to settle the whole ; yet, the integrity, enterprise and perseverance of the company to effectuate the settlements, were uniformly displayed, and have, on every occasion, been candidly applauded. Upon motives of interest, as well as upon the principles of their contract, they “ persisted in their endeavors for even after the board of property had decided, that they had acquired a legal title to the lands, and issued patents in their favor ; even at the moment of the present discussion ; they have been, and are, employed (anxiously, laboriously and expensively employed) in completing the settlement and improvement of every tract which they have purchased. *Let it, then, be recollected, that this controversy does not arise pjog between contending individuals, claiming under adverse titles ; but *• between individuals, who have long paid for the lands, and the commonwealth, who annexed to the sale certain conditions, to be released on a certain event, which event has actually happened. Of the forfeiture, if a forfeiture has accrued, the state alone can take advantage ; and independently of the strict legal question, will it be pretended, that on any principle of equity, the advantage of a forfeiture ought, in such a case, to be taken ? The obstacle to a full compliance with the conditions of sale, proceeded from a public calamity, against which it was the duty of the government to protect its citizens, the existence and operation of which the individuals 157 183 SUPREME COURT ' [March Commonwealth v. Coxe. could not avert or control; and for the consequences of which, they ought not, upon the soundest maxims of civil policy, to be condemned to suffer. But if it was the object of the state to replenish her treasury by the sale of her western lands, that object has been promoted by the sale to the Holland Company, far beyond what could reasonably have been hoped. If the object was to strengthen and secure the frontiers, that object too has been more effectually obtained, by the general operations of the company, than it could have been by the weak and unconnected efforts of particular men : and if it is the spirit and policy of our laws, that the country should be settled, its soil cultivated, and the arts of social life extended, what country was ever more rapidly, or more, by the exertions of a single association, converted from a desert and a wilderness, into a scene of population, industry and prosperity ? Every inhabitant, every traveller, every writer, will be found in unison upon this subject ; and even the secretary of the landoffice, whose conduct has occasioned the present motion for a mandamus, has appeared as the eulogist of the Holland Company ; exhibiting the merit and the success of their example, as an instrument to procure the public patronage for his own project of settlement, in other parts of the stale. Whatever, then, is the law, it must prevail: but it will not be denied, that a claim to a liberal and equitable construction of an ambiguous law, never was better founded. Prevented from accomplishing the settlements designated in the act, by a public enemy; opposed in the prosecution of those settlements by intruders, who derived, indeed, some color for their pretensions, from an imperfect expression of the legislative meaning ; and thrown off their guard, by the deliberate decisions of the board of property, and the authoritative proceedings of the public officers, under the seal of the commonwealth ;. can it be conscientious, can it be just, can it be honorable, that the Holland Company, after a labor of eight years, and an expenditure of $400,000, should be condemned to a forfeiture of the lands, for which they have paid the full consideration, in favor of the state, who has received that consideration ; who, if there has been error or mistake, the error or , mistake *lies in the persons of her officers ; and who, if the doctrine J of forfeiture prevails, will not only retain the consideration-money, but resume the soil, in absolute ownership, with all its ameliorations and improvements ? Strange as it would appear, to exact a forfeiture, under such circumstances, for the benefit of the state, the occurrence would be still more extraordinary, if it had only the effect to take the land from a meritorious warrantee, and to give it to a lawless intruder. Until the forfeiture is regularly established, until the government has determined to take advantage of it, and until a second warrant has issued, reciting the default of the first warrantee, any attempt of an individual to seize and retain the possession of the land, merits, not reward, but punishment. If such conduct should receive an executive, a judicial or a legislative, countenance, a scene of conflict, litigation and tumult must inevitably ensue, fatal to the rights of property, and the peace of the community. The spirit of interested jealousy will extend its baneful influence over what has been sanctioned with the seal of office ; intrusions and forcible entries will generate riots and civil feuds ; the company will be despoiled of every benefit from their patents, their labors and their disbursements ; and if right is not to be passively sur- 158 1800] OF PENNSYLVANIA. 184 Commonwealth v. Coxe. rendered to violence, the state will ultimately find another insurrection to suppress. To avert the danger of such a scene, as well as to obtain a safe and certain guide for their conduct, the Holland Company have anxiously sought the opinion of this court; and they trust, that exceptions to form will not be permitted to defeat the present opportunity, to place the subject on a permanent foundation, just to the public, beneficial to settlers, and useful to warrantees. Unless, indeed, a judicial construction of the law can now be obtained, exertions and success will be in an inverse ratio : exertions will be greater, but settlements will be fewer, in each succeeding year ; until despair takes the place of enterprise; and the whole business of settlement and improvement shall be abandoned to occupants, whose only title is force, without patent, without warrant and without purchase. II. The construction of the proviso, attached to the 9th section of the act of the 3d of April 1792. The exposition of the proviso, has produced a variety of propositions. 1st. By some, it has been supposed, that unless the terms of improvement, settlement and residence had been strictly performed, within the respective periods of two years and five years, a forfeiture accrued, though a war had raged throughout and beyond those periods. 2d. Others, admitting a qualified suspension of the condition, during a war, have, nevertheless, held, that no title could be acquired, until the performance of the terms of im-provement, settlement and residence, though the war should last for a century ; nor even then, unless the warrantee *had, during the whole r*185 war, persisted in his endeavors to perform them. 3d. A third con- *-struction maintains, that if a warrantee has been prevented, by force of arms, from accomplishing the improvement, settlement and residence, designated in the act, but has persisted in his endeavors to accomplish them, during the time mentioned in the 9th section, the proviso operates as an extinguishment of the condition, and the title becomes absolute. And 4th. It has been asserted, that a warrantee, having been prevented by war, from making the improvement, settlement and residence, during the time mentioned in the act, will acquire an absolute title, if he persists in his endeavors for a reasonable period, after the expiration of the war, though all his endeavors should prove ineffectual. 1. The first opinion is at once extravagant and iniquitous. No rational man, during the existence of a war, which he could not resist or terminate, would have formed a contract of such a nature. Nor is it conceivable, if this were the design and meaning of the legislature, that the proviso would have found any place in the act, unless, indeed, fraud and deception can be imputed to its authors ; and it is to be presumed, that an inconsistent, repugnant and ambiguous proviso has been employed, as the instrument to effectuate them ? The enacting part of the 9th section prescribes a settlement to be finished in two years, and a residence to be continued for five years ; and unless the proviso either dispensed with the settlement and residence altogether, or enlarged the periods for accomplishing them, it is utterly impossible to ascribe to it a motive or a use. 2. The second opinion is also pregnant with inconvenience, injustice and absurdity. If it affords the legitimate construction of the act, it applies equally to the case of the actual settler, before warrant, and to the case 159 185 SUPREME COURT Commonwealth v. Coxe. [March of the warrantee, with a view to actual settlement. The price of the land could not, therefore, be collected for the use of the state, nor could a title be acquired by the individual, for a century, if the war should last so long ; nay, even at the termination of a long protracted war, the individual would be without remedy, unless he could prove, that whatever might be the intermediate expense or danger, his endeavors to accomplish a settlement had never been suspended or remitted. Consider the state of the country, and such a condition annexed to the purchase of lands, would inevitably frustrate the primary intention of the legislature. 2 & 3. But it is not directly denied, that the right of the Holland Company is alive ; and it is insinuated, that the opposite arguments do not militate against future grants, if the company shall go on to complete the settlements and residence described in the act. It is proper, therefore, to consider the second and third constructions of the 9th section, connected *1 rrI each other, *and with the facts arising in the present case. The J concession of the opposite counsel, is, indeed, an acknowledgment of the inception and progress, but a denial of the maturity, of the company’s title : while it is contended, for the company, that although the enacting part of the 9th section constitutes a condition precedent to the vesting of a legal title in the warrantees, that condition is totally superseded or extinguished, if the case of the warrantee is embraced by the descriptions of the proviso ; so that he, thereupon, acquires a legal title, without settlement, improvement or residence. By the act, two descriptions of settlers are contemplated : 1st. Those who have made improvements and settlements, without warrants ; and 2d. Those who apply for warrants, with a desire to settle and improve. On both descriptions, it is imposed as a condition precedent, that they shall pay the price of the land, when warrants are taken out; that they shall pay the expense of surveys ; and that they shall improve, settle and reside, in the manner, and for the period, prescribed. It is to be remarked, however, that a distinction is made, in one respect, between the settler and the warrantee; the former being bound to fulfil the condition precedent personally ; and the latter being authorized either to do it himself, or to cause it to be done by others. This, which, at the first blush, might appear an advantage to the warrantee, is converted into a hardship and an injury, the moment the suspicion of forfeiture insinuates itself among the class of people who are to form the actual settlers. There is another distinction also, that the actual settler must pay interest from the date of the improvement ; and he was bound to apply for a warrant within ten years after passing the act ;(a) but, on the other hand, the land and personal property of the warrantee and actual settler were equally exempt from state taxes, for the same period ; and it is urged, that the price of the land was trifling, compared with its real value. Let it be answered, however, that the exemption from taxes can hardly be regarded as a favor ; and the lowness of the price affords no reasonable ground of argument. The settler without warrant is charged an interest, and the settler with warrant advances his money. From the fund created by warrantees, invested in the Bank of Pennsylvania and in public stock, the state has drawn a great (d) The period has been enlarged. 4 Sm. Laws, 200 160 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 186 portion of that revenue, which has been adequate, for many years, to all her objects of public expenditure and improvement. Besides, no state tax was then imposed, there was none likely to be imposed for ten years; and the fact is, that even at this day, a state tax is not in existence, nor in contemplation. The lowness of the price, too, arose from an avowed consciousness that a great part of the public lands would not sell higher ; and as to the rest, the price would be exorbitant, *indeed, on the principles of the opposite construction. After all, the wealth of the state consists in *-its population, and advancement in the arts of agriculture, commerce and manufactures, not in the mere accumulation of coin. These preliminary remarks are suggested, with a view to place the controversy on its real footing ; on the footing of a bargain, in which the seller and the purchaser equally consulted their respective interests, and are equally bound (though the one is a state, and the other a private person), by the terms of the contract. It is agreed, that there was a condition precedent, which must be performed, or be dispensed with, upon the terms of the contract, before any title could vest in the warrantees. It is also agreed, that the condition precedent has not been strictly performed ; for more than two years have elapsed since the date of the warrants, but no such settlement, improvement and residence have been made and continued, as the enacting part of the 9th section describes. What, then, is the operation of the contract, under such circumstances, connected with the Indian war? The adverse counsel will not explicitly aver, that the result is an absolute forfeiture of the lands ; but they peremptorily deny that it amounts to a release or extinguishment of the condition precedent. Where, however, is the expression to be found, that the predicated event dispenses with the condition in part, and adheres to it in part; that dispenses with the limitation of time for performing the act, but, nevertheless, insists upon the act being performed? Even in the condition precedent, a residence of five years is not, in every case, necessary ; for it is only required (independent of hostilities), if the warrantee or settler “ shall so long live.” That cause of absolute dispensation, with respect to residence, must often occur; and it is reasonable to conclude, that the existence of hostilities was likewise considered and intended as entitling the party to an equal degree of indulgence. But after all, it must be agreed, that the wording of the act is, in some places, incoherent and absurd. Thus, on a grammatical construction, the actual settlement described by the 9th section, comprises a residence of five years; and yet, the same actual settlement is required to be made within two years from the date of the warrant. Subsequent passages, indeed, treat actual settlement and residence as distinct objects ; but another confusion of ideas is introduced : for we find that the party is called “ such actual settler,” though he has been “ prevented making such actual settlement,” and it is provided, that “ if he is prevented from making an actual settlement, but persists in his endeavors to make it, he and his heirs shall have and hold the lands, in the same manner, as if the actual settlement had been made and continued.” From the difficulties of the language of the act, therefore, we must endeavor to rescue ourselves, by ascribing to the legislature a mean-mg, which, while it comports *with a rational exposition of the words, . shall be consistent with public policy and the principles of justice. *■ $$ The state, having received the money of the warrantees, was naturally , 4 Dall.—11 188 SUPREME COURT [Maren Commonwealth v. Coxe. led, from the existing hostilities, to contemplate the injury to which their purchase was exposed. Whether the hostilities would prevent the settlement, or not, . t might be difficult to foresee ; but the legislature, in offering the lands for sale, must have held out the probability, that there would be a safe opportunity to settle; or the condition of settlement could never rationally an 1 fairly have boon proposed. If, therefore, the opportunity, implied in this overture, was defeated, it seems to follow, as a legitimate consequence, that the condition ought not to be enforced. Consider, for a moment, the situation of a warrantee, bound by the strict condition to settle, or, by the dispensing proviso, to persist in his endeavors to settle. He must explore, locate and survey each tract, before he can attempt to settle. He must collect, appropriate and apply the funds necessary to defray the various expenses of settlement, improvement and residence. He must be in constant preparation to seize and employ the opportunity for settling. Under such obligations, the mere pecuniary charge of watching for a safe occasion to enter upon his lands (independent of time, labor and anxiety) would, in most instances, be greater than the cost of actual settlement, in a season of public tranquility. Exhausted in money, perplexed by doubt and suspense, grown old and infirm in a course of exertion or persistence, what pretext could justify an accumulation of such disappointment, injury and loss, by exacting a forfeiture of the lands ? The peace warrantee, who has waited until the storm has passed away ; or the intruder, who, at the close of a war, usurps the name of actual settler, has none of these calamities to encounter ; and yet, no greater price has been paid, no other conditions are imposed, in either of those cases, than in the case of the warrantee, who is defeated in all his exertions, and drained of all his resources, by the unavoidable operations of a public war! Is there, then, no principle of justice and humanity, to claim relief from the legislature, upon the construction for which the Holland Company contend ? Would it be unreasonable, to suppose, that under such circumstances, the legislature intended to vest in the persevering, but unsuccessful, warrantee, an absolute estate in the land, upon which he might establish a credit, to furnish means for renewing his exertions, and ultimately compensating his advances and his labors ? If the supposition involves nothing unjust or irrational, the frame of words will sufficiently serve to give it body and effect. Thus, it is declared, that should the grantee “ be prevented from making such actual settlement,” and persist in his endeavors to make it, he shall hold the lands, as if it were made and continued : but the word prevented *1891 ^mP^es *that he had failed ; and persisting in an endeavor, does not import succeeding in it. Again, the grantee is to have the lands, if he persists in his endeavors to make such actual settlement: but this does not involve a condition, that he shall persist until he has made it, or so as to make it; and “ endeavoring to make,” is an expression that designates an attempt, not a performance. Again, if the grantee is prevented, but persists in his endeavors to settle, he is entitled “ to have and to hold the lands, in the same manner as if the actual settlement had been made and continued :” but no title could vest in the grantee, unless the condition precedent was performed ; and yet, by force of the proviso, he is to have the lands (not merely the benefit of a prolongation of the time for settlement), in a case where, from the h ypothetical terms employed, it must be clearly understood that 162 [1800 OF PENNSYLVANIA. 189 Commonwealth v. Coxe. the condition had not been performed. Again, the grantee, being prevented, but persisting in his endeavors to settle, is, by force of the proviso, to have and to hold the lands, “ in the same manner,” as if the condition precedent had been performed : but if the condition precedent had been performed, the grantee would have held the lands in fee, discharged from any limitation, contingency or incumbrance whatsoever ; and consequently, in this case, to enable the grantee to hold in the same manner, persisting in his endeavors to settle, must be considered as tantamount to actual settlement and residence. In short, in every sentence of the proviso, the legislature plainly points at a certain state of things, at some concurrence of circumstances, when the grantee would be absolutely entitled to the land, before, and without, making and continuing an actual settlement. The only question, then, must be, what is the nature of the endeavors prescribed ; during what period, the endeavors are to be made ; and how long the grantee is bound to persist ? The actual settlement must be made or excused, within two years from the date of the warrant; and the residence must not only be five years, but five years next following the first settlement. The time, therefore, is a characteristic of the condition precedent; an ingredient in the definition, as essential to the contract, as the nature of the act required to be performed. If the time is as essential, it is as limited, as the nature of the act to be performed ; and hence, does it not follow, that at the expiration of two years, as to the settlement, and of five years, as to the residence, the condition must be actually performed or virtually annulled ? The excuse for non-performance is also limited ; since, on an allegation of being prevented from settling or residing, the grantee must state the force of arms which prevented him, to be within, and until the end of two years (as to the settlement) next immediately after the date of his warrant; and within and until the end of five years (as to the residence) from the date of his first settlement; or his plea shows no dispensation from the condition. *Thus, the time, within which performance is to be effected, or an apology for non-performance to be received, is the same, or, at least, commensurate : and if the period within which the substitute for performance is exacted, within which the endeavor to perform must be shown, cannot be extended in favor of the warrantee, what right, express or implied, can there be, on the part of the state, to insist on a continuance of the endeavor, beyond the period within which the contract obliged her to accept it, as a commutation for the performance ? Equality is equity, whoever may be the parties to the bargain—states or individuals : but it would be a doctrine of arbitrary prerogative, if performance, or endeavors to perform, should only avail the grantee, to release him from the condition, within a limited period; yet, that the obligation to perform, or to persist in the endeavor to perform, should be indefinite and perpetual. Nor is the idea correct, that the war excused the warrantees from endeavoring to effect a settlement, during its continuance ; and that the law contemplated a perseverance only when it could be effectual. On the contrary, the law obviously required a perseverance in the endeavor to settle during the war ; but left the degree of perseverance to be regulated by considerations of a reasonable discretion and personal safety. That this was the construction of the Holland Company, appears incontestably, from the immediate steps which they pursued to complete their surveys and improvements: and this is, in truth, 103 190 * ' Supreme court ' [March Commonwealth v. Coxe. the material ground of complaint against the opposite doctrine ; that, by the contract, the grantees were obliged to make laborious, hazardous and expensive exertions, during the war; and, yet, at the conclusion of the war, derive no advantage from those exertions, in consummating the legal title to the lands. On the doctrine, that the grantee or settler must persist in his endeavors to improve and reside, for any other periods, or beyond the respective periods of two and five years, let it be asked, when those other periods are to commence, and how long are they to be protracted ? The law itself is silent ; and yet, if an intention of that kind had been entertained, how easily, and how certainly, would the legislature have said, that “ the grantee shall have the lands, if the settlement is completed within two years after the cessation of hostilities, and the residence continued for five years subsequent to the same epoch.” But by whom shall the silence of the law be supplied? What power exists to add the slightest circumstance to the terms of the contract? The legislature, as a party, cannot explain or expound it. The courts of justice can only declare the meaning, from the fair and genuine import of the language of the act; they cannot diminish or enlarge the vested rights of individuals, any more than they can supersede the rights of the state. And on this occasion, the officers of the landoffice have only a ministerial function to perform. Let it, therefore,- be repeated, that *the proviso to the 9th section having rested the con-summation of the grantee’s title, simply upon the persisting in an endeavor, it would be creating a new contract, making a new law, introducing another principle, and amplifying the words of the legislature, to require, not a persevering endeavor, but an actual performance. Besides, would it be just, to fix upon the close of the war, as the period for commencing the endeavor, without giving some credit for the exertions of the grantee or the settler, flagrante bello ? And yet, who shall make the apportionment of time, of laboi’ and of expense ; and upon what principle, can it be made ? It often happens, that what is intended to afford an undue preference to a favorite, in a remote consequence, proves peculiarly injurious to him. The merits of the actual settler have sometimes been enhanced, in order, by an invidious comparison, to depreciate the claims of the purchaser or warrantee : but, it is obvious, that a determination upon the ground taken by the opposite counsel, would operate more severely, with greater cruelty, towards the actual settler, than any consequence that can flow from the construction urged in favor of the Holland Company. For instance, a man enters upon his lands, in the year 1792, with a view to make the improvements which the act requires. He is attacked by the Indians, and driven from his cabin and his field, before he has time to make any visible progress in building, clearing and cultivating ; but he observes, in the words of the act, that being driven from his settlement, he shall, nevertheless, have title, as if he had completed his improvement and continued his residence, if he persists in his endeavors : he, therefore, returns the next year, and is again driven away, re infecta ; and so on, for a succession of years. Shall such a perseverance be accounted as nothing? And is it not obvious, that to require that the actual settler shall be driven away, and constantly kept away, and yet shall complete the settlement and residence, places him in a condition 164 1800] OF PENNSYLVANIA, ' 191 Commonwealth v. Coxe. more grievous than even the case of the warrantee, who is merely prevented from entering and improving the land ? Upon the whole, then, let the proviso operate as a release of the condition precedent, or let it be taken as qualifying the condition, and requiring a reasonable perseverance during or after a war, the claim of the Holland Company must be established. They persisted, in spite of every danger, while hostilities raged; and more than five years have elapsed since the Indian treaty, during which they have also persisted. III. Of the propriety of proceeding, in this case, by a mandamus. In entering upon this part of the discussion, it is proper to inquire, whether the construction given by the board of property to the proviso is not conclusive. It was given after great deliberation, *and upon the legal advice of the law-officer of the state. Patents have been issued, in pursuance of the construction; and transfers have been made and accepted, upon the faith of the public grants, under the great seal. Stare decisis is a maxim to be held for ever sacred, on questions of property; and in the present instance, applies with peculiar force, as the rule was given by the state herself, through the medium of her officers ; and with her alone, not with any individual, can a conflict arise. The board of property is of a judicial character, and had jurisdiction in the present case. (2 Dall. Laws, 21, § 2, 3 ; 3 Ibid. 2,456 ; 4 Ibid. 476; 3 Ibid. 213, 311.) There is no revisory or appellate authority established for questions of this nature : and, certainly, the secretary of the land-office, though a constituent member of the board of property, is merely, as secretary, a ministerial officer, bound by the decisions of the board, though contrary to his own opinions. His ministerial duties (of which it is one, that he shall obey the orders of the board of property) are stated in the several laws relating to the land-office, and they have received a practical exposition, which devolves on him the care of preparing patents for the governor’s signature, and the seal of the state. He is bound, then, to execute the public laws relating to the land-office; and, if he refuses to do so, the court will compel him by mandamus, on general principles, as well as on the authority of particular cases. The general principle of the mandamus points at cases, in which there is no other legal, specific remedy; for a satisfaction in damages is not regarded, in such cases, as an adequate reparation: and then it may be awarded to any public, or private person. (1 Woodes. Leet. 118 ; 3 Black. Com. 110; 3 Burr. 1267, 1659 ; 4 Ibid. 2188 ; 2 Ibid. 1045 ; 3 T. R 651; Ibid. 404 ; Doug. 568.) The particular instances are numerous. It lies to compel the ordinary to grant letters of administration. (1 W. Black. 640.) To compel the delivery of an administration-bond to be put in suit. (4 Bac. Abr. 508; Cowp. 140.) To compel the grant of a license to a curate, if refused without just reason. (4 Bac. Abr. 502, 506 ; 2 Str. 797.) To compel the proper officer to affix a seal. (4 Bac. Abr. 509.) Or to register a certificate, being merely a ministerial act. (Ibid. 508 ; 1 Wils. 283.) To compel the party to proceed in proving a will. (Ld. Raym. 235 ; 15 Vin. Abr. 203.) To oblige any officer to do his duty. (4 Com. Dig. 207.) To compel obedience to things enjoined by statute. (2 Str. 992.) To compel the enrolment of a testament, 'which, by custom, ought to be enrolled. (2 Roll. Abr, 106 ; 1 Sid. 443.) To compel a clerk of a company to deliver up books. 165 192 SUPREME COURT Commonwealth v. Coxe. [March (1 Str. 879.) To compel an old officer to deliver records to a new one. (1 Sid. 31.) The arguments in opposition to the motion for a mandamus> were arranged *1931 un<^er three considerations : 1st. What is the real *import of the J condition precedent: 2d. What the Holland Company had performed, to vest in them a legal title to the lands : and 3d. Whether a mandamus does lie to the secretary of the land-office, even if the company are entitled to patents. I. What is the real import of the condition precedent. This general inquiry naturally divides itself into a view of what must be accomplished by persons who meet with no prevention from the enemies of the United States ; and of what must be done, even by persons who are so prevented, in order to obtain a legal title to the land. The policy and object of the legislature are to be ascertained, by the circumstances which induced them to pass the act of the 3d of April 1792. Before it was passed, and at the time of passing it, there was a subsisting Indian war ; and the treaty of 1794 between the United States and Great Britain, had not removed the causes of irritation and apprehension in relation to that power, which extended along the northern and western boundaries of the state. Hence, it became of the greatest importance to advance the range of settlement ; and to interpose the barrier of a bold and hardy population, in the quarter where danger was so apparent. Treasure was, obviously, only a secondary consideration; and settlement itself was only stipulated, where the danger existed. Thus, the lands east of the Allegheny were offered for sale, unshackled with conditions of settlement; while those on the west could never be vested in any individual, upon any other terms, than those of actual settlement and residence. The steady caution of the legislature on this point, is conspicuous in almost every section of the act. The sale is only offered to persons, who will cultivate, improve and settle the lands. (3 Dall. Laws, 209, § 2.) An actual settler, without warrant, is so highly regarded, that although the law would deem him a trespasser, on general principles, the act prohibits any deputy-surveyor from surveying any settled land, but for the owner of the settlement. (§ 5, p. 210.) A period of ten years’ credit is given to an actual settler for the price of his land. (§ 10, p. 210.) The land is exempt from direct taxes for an equal term. (§ 12, p. 213.) And when the legislature, in the year 1794, closed the land-office, it was with an express exception in favor of actual settlers. (3 Dall. Laws, 637.) (a) In addition to these proofs of the policy and design of the legislature, it must be of great force, to recollect, that shortly before the time of offering the land for sale at the rate of 7Z. 10s. per 100 acres, the state had paid to * qthe United States, at the rate of three-fourths of a *dollar for every acre, contained in the triangular tract bordering on lake Erie. (6) (a) The land-office appears to have been closed, upon the suggestion of the governor, that warrants had issued for a greater quantity of land than the state owned; and not with a view to favor actual settlers. See the governor’s message of the 2d of September 1794. (& ) The payment was made in public certificates; which, it was insisted, were greatly depreciated in value. 166 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 194 The language of the act ought, then, to be expounded, in consistency with the policy that gave it birth; and this can only be done, by considering the effect of a prevention by a public enemy, to be a suspension, and not an extinguishment, of the obligation to settle and reside upon the land. The legislature must have presumed that, notwithstanding the existence of the Indian war, there would be an extension of the western settlements; the accomplishment of a settlement was made a sine qua non to the investment of a legal title ; and the proviso declares nothing more, in effect, than that the war shall be an excuse for non-settlement, while it continues, and the warrantee sincerely persist in his endeavors to settle. But an endeavor to settle must be shown, whether war raged or not; and the endeavor must be to settle every tract (each being the subject of .a separate grant), not a general effort to improve an extensive and indefinite range of country. It being the spirit of the contract, that the land should be settled, no argument ought to avail, on the score of the warrantee’s having paid the stipulated price ; and the word settlement, wherever used, is pregnant with all the consequences of building, cultivation and residence, described in the 9th section of the act It is now too late to complain of hard terms. Whatever was intended and undertaken, by virtue of the law, it is just and lawful to enforce. Say, even, that a forfeiture has been incurred, and insisted on, it can be no reason, at this day, to reproach the government. That point, however, is not urged; for every argument, used on the present occasion, to oppose the mandamus, is perfectly consistent with the idea of future grants or patents being issued to the Holland Company, if they persevere, and in a reasonable time, comply with the requisites of the condition precedent. II. What have the Holland Company performed, to vest in them a legal title to the lands ? It must be repeated, that every tract is the subject of a distinct grant; and that the condition precedent attaches to each tract. Nor does it affect the obligations of the condition, that the Holland Company are the holders of all the warrants in question; for the law is the same, as if each warrant belonged to a separate individual owner. Have the company, then, shown an actual settlement, or even an endeavor to settle, upon each of the tracts ? The evidence exhibited by the company themselves establishes a contrary position. Can it be sufficient to say, that they have improved a great deal of the country, and therefore, are entitled to hold what they have not im-proved ? The spirit of monopoly *was an evil against which the legis-lature meant to guard, by dividing the territory offered for sale into *-tracts, and restricting the right of purchase to a single tract. It is true, that the contrivance of opulent speculators has evaded the legislative precaution; and instead of each settler being the owner of the tract on which he resides, he is the mere instrument of an association of foreigners (who never have visited, and probably, never will visit America), to obtain, for their emolument, the lands which the state had offered for sale, with very different views of policy and benefit. Let it be admitted, however, that the Indian war operated as an excuse for not settling each tract until the spring of 1796 ; yet, the ratification of General Wayne’s treaty removed every obstacle, and was a warning to every warrantee, that the season had arrived, when, by persisting in his endeavors, he might consummate his legal title. If, indeed, no industry or care could 167 105 SUPREME COURT [March Commonwealth v. Coxe. have enabled the company to comply with their contract, the condition would still, perhaps, be suspended: but it is not clear, that a settlement was impracticable at any time, and certainly, it has been practicable for five years past. The company have already obtained 876 patents, without a performance of the condition ; and it is remarkable, that until the resurvey in 1799, they could not even ascertain what tracts were embraced by the remaining 153 warrants. As to the lands, therefore, for which patents are now claimed, nothing more has been done by the company, than to locate and survey them; and unless the Indian war operated as a release of the condition, there is no title acquired ? HI. Whether a mandamus does lie to the secretary of the land-office, even if the Holland company are entitled to patents. The Board of Property is a court of justice; and should be governed by the principles of law, in relation to the proof of matters within their jurisdiction. The certificate of prevention, framed by the order of the 21st of December 1797, is destitute of every characteristic of evidence ; and it has even been evaded, in the manner of returning it; for the order required the signature of the proper deputy-surveyor, and two justices ; but in many instances, the certificate is signed by the same person twice, once as deputysurveyor, and again as a justice. Consider the order as a rule of practice; rules of practice are for ever in the power of the court, to alter or rescind ; and the succeeding board of property could not be restrained in this respect, by the acts of their predecessors. Besides, the order of the 21st December 1797, is radically defective in other points. The board of property was bound to inquire for themselves, whether settlements had been completed or prevented, within the meaning of the law ; it was a judicial authority, which could not be delegated ; and yet, by this order, it was actually transferred *1961 deputy-surveyors *and justices ; nor was the sanction of an J oath required for the fidelity of their certificate ; which, indeed, is not a statement of facts, but the declaration of a result. The introduction of such an order was, therefore, an error, and its revocation became a duty. The secretary of the land-office, in his judicial capacity, as a member of the board of property, decided against the force of the certificate of prevention, to entitle warrantees to patents; and the effect of the mandamus would be, to compel him to do, as an executive officer, what he has declared, as a judge, ought not to be done. Nor is the act required within the duties of his office. The patent is an act of the governor; and affixing the state seal, is an act of the secretary of the commonwealth : but the secretary of the land-office can neither issue a patent, nor affix the seal, nor compel others to do so. It is to be remembered, likewise, that the board of property is established expressly as a tribunal to advise and regulate the proceedings of the land-office ; and a mandamus ought not to issue to any of the ministerial officers, requiring an act to be done, which the board has prohibited. (2 Dall. Laws, 21 ; 3 Ibid. 3, § 3 ; 3 Bl. Com. 111.) But there is, both in law, and in practice, a specific, appropriate and adequate remedy, which supersedes any pretext for issuing a mandamus. If the secretary of the land-office refuses to perform a duty, an application may be made to the board of property, whose orders he must obey; and if the decision of the board of property is not satisfactory to the applicant, he may institute an ejectmen* By this course, order will be preserved, 168 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 196 justice will be administered, and the interests of the state, as well as of individuals, will be protected. After taking time for deliberation, the judges delivered their opinions seriatim :(a) Shippen, Chief Justice.—The legislature, by the act of the 3d of April 1792, meant to sell the remaining lands of the state, particularly, those lying on the north and west of the rivers Ohio and Allegheny. The consideration-money was to be paid, on issuing the warrants. They had likewise another object, namely, that, if possible, the lands should be settled by improvers. The latier terms, however, were not to be exacted from the grantees, at all events. The act passed at a time when hostilities existed on the part of the Indian tribes. It was uncertain, when they would cease : the legislature, therefore, contemplated, that warrants might be taken out, during the existence of these hostilities, which might continue so long, as to make it impossible for the *warrantees to make the settlements 1*^0^ required, for a length' of time; not, perhaps, until after these hos-tilities should entirely cease. Yet, they make no provision, that the settlements should be made within a reasonable time after the peace; but expressly within two years after the dates of the warrants. As, however, they wished to sell the lands, and were to receive the consideration-money immediately, it would have been unreasonable, and probably, have defeated their views in selling, to require settlements to be made on each tract of four hundred acres, houses to be built, and lands to be cleared ; in case such acts should be rendered impossible by the continuance of the Indian war. They, therefore, make the proviso, which is the subject of the present dispute, in the following words: “ Provided always, nevertheless, that if any such actual settler, or any grantee in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid ; then, in either case, he and his heirs, shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” When were such actual settlements to be made ? The same section of the act, which contains the above proviso, gives a direct and unequivocal answer to this question, “ within the space of two years next after the date of the warrant.” If the settlements were not made within that time, owing to the force, or reasonable dread, of the enemies of the United States, and it was evident, that the parties had used their best endeavors to effect the settlement; then by the express words of the law, the residence of the improvers for five years afterwards, was expressly dispensed with ; and their titles to the lands was complete, and patents might issue accordingly. It is contended, that the words “ persist in their endeavors ” in the proviso, should be extended to mean, that if, within the two years, they should be prevented by the Indian hostilities from making the settlement; yet, when (a) Mr. Justice Brackenridge having been retained, while he was at the bar, as counsel for the Holland Company, declined taking any part in the decision of this cause. 169 19? SUPREME COURT [March Commonwealth v. Coxe. they should he no longer prevented by those hostilities, as by a treaty of peace, it was incumbent on them, then, to persist to make such settlement. The legislature might, if they had so pleased, have exacted those terms (and they would not, perhaps, have been unreasonable) ; but they have not done so : they have expressly confined the time of making such settlements, to the term of two years from the date of the warrant. Their meaning and intention can alone be sought for, from the words they have used, in which there seems to me, in this part of the act, to be no great ambiguity. If the contrary had been their meaning, they would not have made use of the word “ endeavors,” which supposes a possibility, at least, if not a probability, as things then stood, of those endeavors failing, on account of the hostilities ; * and would, therefore, *have expressly exacted actual settlements to J be made, when the purchaser should no longer run any risk in making them. The state having received the consideration-money, and required a settlement within two years, if not prevented by enemies ; and in that case, dispensing with the condition of settlement and residence, and declaring that the title shall be then good, and as effectual as if the settlement had been made and continued ; I cannot conceive, they could mean to exact that settlement, at any future indefinite time. And, although it is said, they meant that condition to be indispensable, and that it must be complied with in a reasonable time ; we have not left to us that latitude of construction, as the legislature have expressly limited the time themselves. It is urged, that the main view of the legislature was to get the country settled and a barrier formed : this was, undoubtedly, one of their views, and for that purpose, they have given extraordinary encouragement to individual settlers ; but they had, likewise, evidently, another view, that of increasing the revenue of the state, by the sale of the lands. The very title of the act is 11 for the sale of the vacant lands within this commonwealth this latter object they have really effected, but not by the means of the voluntary settlers ; it could alone be effected by the purses of rich men or large companies of men, who would not have been prevailed upon to lay out such sums of money as they have done, if they had thought their purchases were clogged with such impracticable conditions. I have hitherto argued, upon the presumption, that the words “persist in their endeavors,” relate to the grantees as well as the settlers ; but in considering the words of the proviso, it may be well doubted, whether they relate to any other grantee or settler, than those who have been driven from their settlements. The word “ persist,” applies very properly to such. The words of the proviso are, “ if such actual settler, or any grantee, shall by force of arms of the enemies of the United States, be prevented from making such settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement ; then, in either case, he and his heirs shall be entitled, &c.” Here, besides that the grammatical construction of referring the word 11 persist ” to the last antecedent, is best answered; the sense of it is only applicable to settlements begun, and not to the condition of the grantees. There are two members of the sentence, one relates to the grantees, who, it is supposed, may be prevented from making their settlements : the other to the settlers, who are supposed to be driven away from the settlements. The latter words, as to them, are proper ; as to the 170 18t0] OF PENNSYLVANIA. Commonwealth v. Coxe. 198 grantees, who never began a settlement, improper. The act says, in either case, that is, if the grantees are prevented from making their settlements, or *if the settlers are driven away, and persist in their endeavors to com-plete their settlements, in either case, they shall be entitled to the land. L I will not say, this construction is entirely free from doubt : if it was, there would be an end of the question. But taking it for granted, as it has been done at the bar, that the words relate to the grantees, as well as to the settlers ; yet, although inaccurate with regard to the former, it seems to me, the legislature could only mean to exact from the grantees, their best endeavors to make the settlements, within the space of two years from the date of their warrants ; at the end of which time, if they have been prevented from complying with the terms of the law, by the actual force of the enemy, as they had actually paid for the land, they are then entitled to their patents. If the legislature really meant differently, all I can say is, that they have very unfortunately expressed their meaning. The propriety of awarding a mandamus, is another question, which I mean not to discuss, as I presume a decision of a majority of the court will make it unnecessary. Yeates, Justice.—I have long hoped and flattered myself, that the difficulties attendant on the present motion, would have been brought before the justice and equity of the legislature for solution, and not come before the judicial authority, who are compelled to deliver the law as they find it written for decision. The question has often occurred to our minds, under the act of the 3d of April 1792, which has so frequently engaged our attention in our western circuits. The Holland Company have paid to the state the consideration-money of one thousand one hundred and sixty-two warrants, and the surveying fees on one thousand and forty-eight tracts of land ; besides making very considerable expenditures, by their exertions, honorable to themselves, and useful to the community (as has been correctly stated), in order to effect settlements. Computing the sums advanced, the lost tracts, by prior improvements and interferences, and the quantity of one hundred acres granted to each individual for making an actual settlement on their lands ; it is said, that, averaging the whole, between $230 and $240 have been expended by the company, on each tract of land they now lay claim to. The Indian war, which raged previous to, and at the time of the passing of the law, and until the ratification of the treaty at Fort Grenville, must have thrown insurmountable bars in the way of those persons, who were desirous of sitting down immediately on lands, at any distance from the military posts. These obstacles must necessarily have continued for some time after the removal of impending danger, from imperious circumstances ; the *scattered state of the inhabitants, and the difficulty of early collecting supplies of provisions; besides, it is obvious, that settle-ments, in most instances, could not be made, until the lands were designated and appropriated by surveys, and more especially so, where warrants have express relation to others, depending on a leading warrant, which particularly locates some known spot of ground. On the head of merit, in the Holland Land Company’s sparing no expense to procure settlements, I believe, there are few dissenting voices in 200 SUPREME COURT [March Commonwealth v. Coxe. beyond the mountains: and one would be induced to conclude, that a variety of united, equitable circumstances would not fail to produce a proper degree of influence on the public will of the community. But we are Compelled by the duties of our office, to give a judicial opinion upon the abstract legal question, whether, if a warrant-holder, under the act of the 3d of April 1792, has begun to make his actual settlement, and is prevented from completing the same, “ by force of arms of the enemies of the United States, or is driven therefrom,” and shall make new endeavors to complete the same, but fails in the accomplishment thereof, the condition of actual settlement and residence is dispensed with and extinguished ? I am constrained, after giving the subject every consideration in my power, to declare, that I hold the negative of the proposition, for the following reasons, collected from the body of the act itself : 1st. The motives inducing the legislature to enact the law, are distinctly marked in the preamble, that “ the prices fixed by law for other lands ” (than those included in the Indian purchase of 1768), “are found to be so high, as to discourage actual settlers from purchasing and improving the same.” (3 Dall. Laws, 209.) 2d. “ The lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, are offered for sale, to persons who will cultivate, im-prove and settle the same, or cause the same to be cultivated, improved and settled, at and for the price of 77. 10s. for every hundred acres thereof.” By § 2, the price of lands is thus lowered, to encourage actual settlements. 3d. By § 3, “ upon the application of any person who may have settled and improved, or is desirous to settle and improve, a plantation within the limits aforesaid, there shall be granted to him a warrant not exceding four hundred acres,” &c. The application granted, is not to take up lands ; but it must be accompanied, either by a previous settlement and improvement, or expressions of a desire to settle and improve a plantation; and in this form, all such warrants have issued. *2011 *4th. By § 5, “lands actually settled and improved, prior to the J date of the entry of a warrant with the deputy-surveyor of the district, shall not be surveyed; except for the owner of such settlement and improvement.” This marked preference of actual settlers over warrantholders, who may have paid their money into the treasury for a particular tract, even, perhaps, before any improvement of the land was meditated, shows, in a striking manner, the intention of the legislature. 5th. By § 8, “the deputy-survivor of the district, shall, upon the application of any person who has made an actual settlement and improvement on these lands, survey and mark out the lines of the tract of land, not exceeding four hundred, for such applicant.” The settlement and improvement alone are made equivalent to a warrant; which may be taken out, by § 10, ten years after the time of passing this act. 6th. I found my opinion, on what I take to be the true and legitimate construction of the 9th section ; in the close of which, is to be found the proviso from whence spring all the doubts on the subject. It has been said at the bar, that three different constructions have been put on this section. (1.) That if the warrant-holder has been prevented by Indian hostilities, 172 1800] OF PENNSYLVANIA. ' 201 Commonwealth v. Coxe. from making his settlement within two years, next after the date of his warrant, and until the 22d of December 1795 (the time of ratification of General Wayne’s treaty), the condition of settlement and residence is extinct and gone. (2.) That though such prevention did not wholly dispense with the condition, it hindered its running within that period ; and that the grantee’s persisting in his endeavors to make an actual settlement and residence, for five years, or within a reasonable time thereafter, shall be deemed a full compliance with the condition. (3.) That in all events, except the death of the party, the settlement and residence shall precede the vesting of the complete and absolute estate. Though such great disagreement has obtained, as to the true meaning of this 9th section, both sides agree in this, that it is worded very inaccurately, inartificially and obscurely. Thus, it will be found, towards the beginning of the clause, that the words “ actual settlement,” are used in an extensive sense, as inclusive of residence for five years : because its constituent parts are enumerated and described, to be by “ clearing, fencing and cultivating at least two acres for every hundred acres, contained in one survey ; erecting thereon a messuage for the habitation of man, and residing, or causing a family to reside thereon, *for the space of five years, next following his r#on9 first settling the same, if he or she shall so long live.” In the mid- *-die of the clause, the same words are used in a more limited sense, and are coupled with the expression “and residence,” and in the close of the section, in the proviso, the same words, as I understand them, in a strict grammatical construction of the whole clause, must be taken in the same large and comprehensive sense, as they first conveyed ; because, the terms “ such actual settlement,” used in the middle of the section, are repeated in the proviso, and refer to the settlement described in the foregoing part: and the words “ actual settlement, as aforesaid,” evidently relate to the enumeration of the qualities of such settlement. Again, the confining of the settlement to be within the space of two years next after the date of the warrant, seems a strange provision. A Atar with the Indian natives subsisted, when the law passed, and its continuance was uncertain. The state of the country might prevent the making of surveys for several years ; and until the lands were appropriated by surveys, the precise places where they lay, could not be ascertained generally. Still, I apprehend, that the intention of the legislature may be fairly collected from their own words. But I cannot accede to the first construction, said to have been made of the proviso in this 9th section ; because it rejects as wholly superfluous, and assigns no operation whatever, to the subsequent expressions “if any grantee shall persist in his endeavors,” &c., which is taking an unwarrantable liberty with the law. Nor can I subscribe to the second construction stated, because it appears to me to militate against the general spirit and words of the law, and distorts its great prominent features in the passages already cited, and for other reasons, which I shall subjoin. I adhere to the third construction, and will now again consider the 9th section. It enacts, in the first instance, that “ no warrant or survey for lands, lying north and west of the rivers Ohio and Allegheny and Conewango creek, shall vest any title, unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, 4 202 SUPREME COURT [Maren Commonwealth v. Coxe. within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, &c. Provided always, nevertheless, that if any such actual settler, or any grantee in any such original or succeeding warrant, shall by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid ; then, in either case, he and his heirs, shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” “ Persist ” is the correlative of attempt or endeavor, and signifies “ hold „1 on,” “ persevere,” &c. The beginning words of the section, *restnct J the settlement, “ to be within two years next after the date of the warrant, by clearing, &c., and by residing for the space of five years, next following his first settling of the same, if he or she shall so long live and in default thereof, annexes a penalty of forfeiture, in a mode prescribed But the proviso relieves against this penalty, if the grantee is prevented from making such settlement by force, &c., and shall persist in his endeavors to make such actual settlement as aforesaid. The relief, then, as I read the words, goes merely as to the times of two years next after the date of the warrant, and five years next following the party’s first settling of the same ; and the proviso declares, that persisting, &c., shall be equivalent to a continuation of the settlement. To be more intelligible, I paraphrase the 9th section thus :—Every warrant-holder shall cause a settlement to be made on his lands, within two years next after the date of his warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture, by a new warrant. Nevertheless, if he shall be interrupted or obstructed, by external force, from doing these acts, within the limited periods, and shall afterwards persevere in his efforts, in a reasonable time after the removal of such force, until those objects are accomplished, no advantage shall be taken of him, for the want of a successive continuation of his settlement. The construction I have adopted, appears to me «to restore perfect symmetry to the whole act, and to preserve its due proportions. It affords an easy answer to the ingenious question, proposed by the counsel of the Holland Company. If, say they, immediately after a warrant issues, a settler, without delay, goes on the ground, the 11th of April 1792, and stays there until the next day, when he is driven off by a savage enemy, after a gallant defence ; and then fixes his residence as near the spot as he can, consistently with his personal safety, does the warrantee lose all pretensions of equity ? Or, suppose, he has the good fortune to continue there, firmly adhering to the soil, for two or three years, during the Indian hostilities; but is, at length, compelled to remove by a superior force, is all to go for nothing, and must he necessarily begin again ? I answer to both queries, in the negative—by no means. The proviso supplies the chasm of successive years of residence ; for every day and week he resides on the soil, he is entitled to credit in his account with the commonwealth: but upon a return of peace, when the state of the country will admit of it, after making all reasonable allowances, he must resume the occupation of the land, and complete his actual settlement. Although a charity cannot take place according to 174 1800] OF PENNSYLVANIA. Commonwealth v. Coxe. 20-1 the letter, yet it ought to be performed cypres, and the substance pursued. (2 Vern. 266 ; 2 Fonbl. 221.) *It has been objected, that such a contract with the state, is r*9fU unreasonable, and hard on those land-holders, and ought not to be insisted upon. It will be said, in reply, they knew the terms before they engaged in the bargain, and must abide by the consequences : the only question is, whether the interpretation given of it be correct or not. 7th. A due conformity to the provisions of the act, is equally exacted of those who found their preference to lands on their personal labor, as of those who ground it on the payment of money. I know of no other distinctions between these two sets of land-holders, as to actual settlement and residence, than that the claims of the former must be limited to a single plantation, and the labor be exerted by them, or under their direction ; while the latter may purchase as many warrants as they can, and make, or cause to be made, the settlements required by law. (Addison, 340, 341.) It is admitted, on all sides, that the terms of actual settlement and residence, are, in the first place, precedent conditions to the vesting of absolute estates in these lands ; and I cannot bring myself to believe, that they are dispensed with, by unsuccessful efforts, either in the case of warrant-holders, or actual settlers. In the latter instance, our uniform decisions have been, that a firm adherence to the soil, unless controlled by imperious circumstances, was the great criterion which marked the preference in such cases ; and I have seen no reason to alter my opinion.1 8th. Lastly, it is obvious from the preamble, and § 2, that the settlement of the country, as well as the sale of the lands, was meditated by this law ; the latter, however, appears to be a secondary object with the legislature. The peopling of the country, by a hardy race of men, to the most extreme frontier, was certainly the most powerful barrier against a savage enemy. Having been thus minute, and I fear tedious, in delivering my opinion, it remains for me to say a few words, respecting those persons who have taken possession of part of these lands, supposing the warrants to be dead, according to the cant word of the day, and who, though not parties to the suit, are asserted to be implicated in our decision. If the lands are forfeited in the eye of the law, though they have been fully paid for, the breach of the condition can only be taken advantage of by the commonwealth, in a method prescribed by law. Innumerable mischiefs and endless confusion would ensue, from individuals taking upon themselves to judge when warrants and surveys cease to have validity, and making entries on such lands at their will and pleasure. I will repeat what we told the jury in Morris’s Lessee v. Neighman and Shaiver (2 Yeates 453), “ If the expressions of the law were not as particular as we find them, we should have no difficulty in *pronouncing that no person should take advantage of their own r*9nt-wrong, and that it does not lie in the mouths of men, like those we are speaking of, to say the warrants are dead; we will take and withhold the possession, and thereby entitle ourselves to reap benefits from an unlawful act.” On the whole, I am of opinion, that the rule should be discharged. Smith, Justice.—I have had a full opportunity of considering the opinion 1 Denied, by Kennedy, J., in Campbell v. Galbreath, 1 Watts 81. 175 205 SUPREME COURT Commonwealth v. Coxe. [March delivered by my brother Yeates ; and as I perfectly concur in all its principles, I shall confine myself to a simple declaration of assent. I could not hope, indeed, to add to the argument; and I am certain, I could not equal the language which he has used on the occasion. By the Court.—Let the rule be discharged, (a) (a) Since this decision was pronounced, the subject has been revived and agitated in various interesting forms. In the winter of 1801-2, several petitions were presented by the intruders, to the legislature, requesting their interposition, but the committee of the senate, to whom these petitions were referred, reported against them, and admitted, that the controversy belonged exclusively to the courts of justice. But soon after this report was made, a bill was introduced, entitled “ An act,” &c. which recites the existing controversies, gives a legislative opinion against the claim of the warrantees, and institutes an extraordinary tribunal, to hear and decide between the parties. The appearance of this bill produced two remonstrances from the Holland Company, but without effect. As soon as it became a law, the attorney-general and the counsel for the company were invited to a conference with the judges, on the carrying of it into effect; but, upon mature consideration, the counsel for the company declined taking any part in the business, and assigned their reasons in a letter addressed to the judges, dated the 24th of June 1802. An issue was then formed, by the direction of the judges, which was tried at Sunbury, on the 25th of November following, before Yeates, Smith and Brackenridge, justices, and a report of the proceedings and decision on that occasion will be found in a subsequent part of the present volume.2 1 Act 2d April 1802, P. L. 153. 2 Attorney-General v. The Grantees, post, p. 237. The Holland Land Company thereupon instituted a number of ejectments in the circuit court of the United States, one of which was certified, on disagreement of opinion between the judges, to the supreme court, where the question was determined in favor of the title of the Holland Land Company, in opposition to the decision of the state court. Huidekoper v. Douglass, post, p. 392, more fully reported in 3 Cr. 1. And on a second trial, there was a verdict and judgment in favor of that title. 1W. C. C. 258. But though this judgment settled the rights of the company, in the particular case, yet it is said by Judge Kennedy, in Campbell v. Galbreath, 1 Watts 101, that the supreme court of the state never changed its decision. And it is very questionable, whether Huidekoper v. Douglass was rightly decided, 176 since the 34th section of the judiciary act declares that the laws of the several states shall be regarded as rules of decision, in trials at common law, in the court of the United States, in cases where they apply. And accordingly, it has frequently been determined, that the federal courts are bound by the decisions of the highest state courts, as to the local law of real property, whether grounded on the construction of a statute, or on the unwritten law of the state. St. John v. Chase, 12 Wheat. 153; Bell v. Morrison, 1 Pet. 352 ; Henderson v. Griffin, 5 Id. 151; Green v. Neal, 6 Id. 291; Brashear v. West, 7 Id. 609; Beauregard v. New Orleans, 18 How. 497; Suydam v. Williamson, 24 Id.; Chicago v. Robbins, 2 Black 419; Sumner v. Hicks, Id. 352; Williamson v. Suydam, 6 Wall. 723; Williams v. Kirtland, 13 Id. 306; Richmond v. Smith, 15 Id. 429. 1800] OF PENNSYLVANIA. 205 Jackson et al. v. Winchester, (a) Practice.—Evidence. Issues were joined on the pleas of non assumpsit, and payment: plaintiffs had been obliged to send a commission to another state, to prove the assumption; and when the jury was about to be impannelled, defendant moved to strike out the former plea: Held, that he should not be allowed to strike it out. Nothing that passes before a judge, on a question, of bail, can be evidence on the trial of a cause, unless it was clearly admitted as a fact, by the opposite party. The following points occurred in this case: I. The issues in this case were joined on pleas of non assumpsit, and payment. When the jury were about to be impannelled, the defendant’s counsel moved to strike out the former plea, by which (leaving only the affirmative plea of payment) he would be entitled to the conclifsion in addressing the jury. The plaintiff’s counsel objected, with an allegation, that upon the issues, as they now stood, they had been obliged to send a commission into another state, to prove the sale and delivery of the goods, for which the action was brought. And The Court refused to allow the plea of non assumpsit to be stricken off. (5) *H. The defendant alleged, that the plaintiffs had agreed to take payment of the debt, for which the action was brought, in Tennes- L see militia certificates, if David Allison approved of it. Allison approved in writing of the proposed payment, and the certificates were delivered to him ; but it became a question, how far that delivery was satisfaction to the plaintiffs ? And Allison being dead, M. Levy offered himself as a witness to prove that, on a question of bail, before McKean, C. J., Allison deposed that the plaintiffs had debited him with the amount of the certificates in their account-current. The plaintiffs’ counsel objected to the evidence, and— By the Court.—Nothing that passed before the judge, on the ques- (a) s. c. 2 Yeates 529. (5) A defendant has not a right to strike off a plea, but it rests with the court to allow or refuse him permission to do so; and if the plaintiff has not been put to any trouble or expense, to prove the issue made by a plea, the defendant may, on motion, obtain leave to strike it out, more especially, if the motion is made at a term previous to that of the trial of the cause. Wikoff ®. Perot, 1 Yeates 38; Rankin ®. Cooper, 2 Bro. 13; Waggoner v. Line, 3 Binn. 589; Weidman v. Kohr, 13 S. & R. 24. But a defendant will not be allowed, at the moment of trial, to withdraw his plea, and substitute another, changing the issue. McDaniels v. Train, 1 Bro. 342. Whilst this work was in the press, the same question occurred in the circuit court of the United States; and the judges decided, that where the pleas were non assumpsit and payment, the defendant might, of course, strike out the plea of non assumpsit, without applying to the court, at any time before the jury were actually sworn. They said, it operated to relieve the plaintiff, from the necessity of proving the assumption, and was, there fore, for his advantage. But they distinguished it from the case of adding a plea, as essentially different; that case requiring the authority of the court. Vuyton ®, Brieulle, October term 1806 (1 W. C. C. 467). Dallas, tor the plaintiff. Ingersoll and Du Ponceau, for the defendant. 4 Dall—12 \ 206 ' SUPREME COURT ' [March Bussy v. Donaldson. tion of bail, can be evidence on the trial, unless it was clearly admitted, as a fact, by the party. W. Tilghman and Hallowell, for the plaintiffs. Jf. Levy and Dallas, for the defendant. Bussy v. Donaldson. Collision.—Dilots. —Damages. The fact that a ship is in charge of a licensed pilot, does not relieve her owners from liability for a collision, occasioned by negligence.1 In an action for a tort, the plaintiff is entitled to recover damages, commensurate with the injury, and equivalent to a full indemnity. Smith, J., dissenting. This was an action on the case, against the owner of the ship Edward, for running foul of and sinking the brig Katy, at the piers in the river Delaware, by negligence, and improvident and unskilful management, &c. The defence was made on three grounds : 1st. That the injury was occasioned by unavoidable accident, for which no reparation ought to be exacted. 2d. That as the ship Edward was in the charge of a public pilot of the port (a person not the choice, nor the voluntary agent, of the owner), when the injury was committed, the owner was not legally responsible. And on this point, the following authorities were cited : 3 Bac. Abr. 591-2 ; 7 Geo. IL, c. 15 ; 3 Dall. Laws, 422, § 8, 10, 15 ; Wesk. 395 ; Beawes, 122 ; 1 Emerig. 402-3 ; 1 Bl. Com. 431-2 ; 1 Dorn. 241, tit. 16, § 3 ; Salk. 442, 440 ; 3 Bac. Abr. 560. 3d. That the amount of the injury actually sustained, is not the measure of damages, in the present action. Durviance v. Angus, 1 Dall. 180. After argument, by IK Tilghman, AT. Levy and Dawle, for the plaintiff, ♦q/xh-I and by Ingersoll, IE. Tilghman and Lewis, for the *defendant, the -* judges delivered their opinions to the jury, in substance, as follows : Shippen, Chief Justice.—The first object that naturally presents itself, is to ascertain, whether the injury complained of was the consequence of gross negligence, or of mere accident ? This falls, exclusively, within the province of the jury ; but if they shall think, that the injury was the consequence of gross negligence, then the plaintiff is entitled to recover damages; unless some rule of law interposes to prevent it, under the peculiar circumstances of the present case. In considering the point of law, we are led into a field of inquiry equally interesting for its novelty and its importance ; for although the defendant admits, that in ordinary cases, the owner of a ship is answerable, civiliter, for the injuries committed in the course of his service, by the master and crew ; it is insisted, that a pilot, under the regulations of our act of assembly, for his examination and appointment, is not to be regarded as the agent or servant of the owner, but rather as the officer of the public. Though it is not agreeable to deliver opinions on important points of law, «iddenly started in the course of a trial, I think, I can safely pronounce, ’The China, 7 Wall. 53 ; The Merrimac, 14 dry, 1 How. 28; The China, ut supra, and cases Id. 202; Sherlock V. Alling, 03 U. S. 100; there cited. The English law is otherwise. Smith v, Con- 178 1800] OF PENNSYLVANIA. 207 Bussy v. Donaldson. on the pi esent occasion, that the distinction which has been taken, is rather plausible than solid. The legislative regulations were not intended to alter or obliterate the principles of law by which the owner of a vessel was previously responsible for the conduct of the pilot; but to secure, in favor of every person (strangers as well as residents) trading to our port, a class of experienced, skilful and honest mariners, to navigate their vessels safe up the bay and river Delaware. The mere right of choice, indeed, is one, but not the only reason, why the law, in general, makes the master liable for the acts of his servant : and in many cases, where the responsibility is allowed to exist, the servant may not, in fact, be the choice of the master. For instance, if the master of a merchant vessel dies on the voyage, the mate becomes master; and the owner is liable for his acts, though the owner did not hire him, originally, nor expressly choose him to succeed the master. The reason is plain : he is in the actual service of the owner, placed there, as it were, by the act of God. And so, in the case under consideration, the pilot was in the actual service of the owner of the ship, though placed in that service by the provident act of the legislature. The general rule of law, then, entitles the plaintiff to recover ; and we have heard of no authority, we can recollect none, that distinguishes the case of a pilot, from those numerous cases, on which the general rule is founded, (a) As to the assessment of damages : it is a rational, and a legal principle, that the compensation should be equivalent to the injury. There may bo some occasional departures from this principle; *but I think it will be found safest to adhere to it, in all cases proper for a legal indemni- •-fication, in the shape of damages. Smith, Justice.—I perfectly concur in the opinion expressed by the Chief Justice, upon the responsibility of the owner of a ship. But I confess, that I am not prepared to accede to his opinion, on the assessment of damages. I take this distinction. In a case of contract; or in a case of damage by gross negligence ; the jury should always, I think, give a compensation to the full amount of the injury actually sustained. But if an injury is (a) s. p. The Eliza v. The Decatur, 2 Whart. Dig. p. 685, § 524. A pilot, while he has charge of a vessel, is the agent of the owner, and although it is under the command of a pilot, who has the entire control and management of it, the owner is liable to the injured party, when, through the fault or negligence of any one on board, his vessel injures another vessel, by running foul of it. Yeates ®. Brown, 8 Pick. 23. The rule was the same in England. Neptune The Second, 1 Dods. 467; Bowcher v. Noidstrom, 1 Taunt. 568. See also Fletcher ®. Braddick, 5 Bos. & Pul. 182. But the liability of the master and owner, in such a case, was removed by Stat. 52 Geo. III., c. 39, § 30. Bennet ®. Moita, 7 Taunt. 258 ; Ritchie ®. Bowsfield, 7 Id. 309. If, in the case of a collision; the vessel in fault is under the command of a pilot, and the master is absent at the time, he is not responsible for the damage (Snell ®. Rich, 1 Johns. 305), and it has been said that even if the master were present, he would not be liable in such a case. Yates ®. Brown, ut supra. A captain of a sloop of war has been held not to be responsible for the damage done by a collision, when the accident happened during the watch of the lieutenant, since he acted independently of any authority from the captain. Nicholson®. Mouncey, 15 East 384; but see Bowcher ®. Noidstrom, ut supra, and a casa cited by Lawbence, J., 1 Taunt. 569. 179 208 SUPREME COURT Waters v. McClellan. [March done, in a way merely fortuitous and accidental, I think, the jury have a legal and salutary discretion upon the subject. Bbackenridge, Justice, concurred generally in the sentiments of the Chief Justice. Verdict in favor of the plaintiff for $2500.(a) Waters’ executors u McClellan et al. (5) Fraud,—Retention of possession.—Distress. The mere fact that a purchaser at a judicial sale permits the former owner to retain the possession, is not a badge of fraud, in Ponnsylvania.(c) One who shows title under a distress for rent, need not prove that it was made upon the premises, as against third persons. In trespass, for selling the plaintiff’s cattle, under an execution against a third person, lawfully in possession, the defendant may show, in mitigation of damages, that such third person had been to an expense in feeding them, which exceeded a fair compensation for their use. Trespass for goods of the testator, taken and sold by the sheriff, on an execution issued against Dewees. The principal part of the goods were claimed by the testator, under a distress and sale, which he had also executed (a) The account exhibited for the whole expense of raising and repairing the brig, amounted to 1310Z. 8«. 9d. (5) Tried in the circuit court, West Chester, 29th of May 1800, before Shippen, Chief Justice, and Yeates, Justice. (c) The rule is very old, that as to third persons, possession of chattels determines their ownership, and that all transfers of personal chattels, where the possession is not also changed, are fraudulent in law. The decisions on this subject have been uniform in the federal courts, and with few exceptions, the rule has been inflexibly upheld, by the courts of the state of Pennsylvania. The rule has been equally applied whether the contract was that of mortgage, or of absolute sale. Hamilton ®. Russell, 1 Or. 809; Meeker ®. Wilson, 1 Gallis. 419 ; Clow Woods, 5 S. & R. 275 ; Cunningham ®. Neville, 10 Id. 201; Babb ®. Clemson, Id. 419; Welsh ®. Bekey, 1 P. & W. 57: as to what is a sufficient delivery of possession, see Cameron v. Montgomery, 13 S. & R. 128. (Dawes v. Cope, 4 Binn. 258.) If, by a contract for the sale of chattels, the vendor and vendee agree, that the possession shall pass to the vendee, but that the property shall remain in the vendor, until the whole purchase-money shall have been paid, such agreement is fraudulent in law, and the goods may be taken in execution, as the property of the vendee. Martin v. Mathiot, 14 S. &R. 214.1 But, after a public sale of chattels, by process of law, they may be left in the possession of the former owner, and they cannot be sold again for a debt due at the time of the sale, unless there is fraud in fact. Myers v. Harvey, 2 P. & W. 478.2 The delivery of possession is, however, not necessary to the validity of an assignment, where such delivery has been rendered impossible, by an intervening execution, before the goods could be delivered to the assignee. Wilt v. Franklin, 1 Binn. 502. In what cases, transfers of chattels need not be accompanied by a change of possession, see Meeker v. Wilson, and Clow ®. Woods, ut supra. ■ 1 Rose v. Story, 1 Penn. St. 190 ; s. p. Jenkins v. Eichelberger, 4 Watts 121; Hook v. Linderman, 64 Penn. St. 499; Wylie’s Appeal, 90 Id. 210; Stadtfield v. Huntsman, 92 Id. 63; Heppe v. Speakman, 3 Brewst. 648; Stiles v. Whitaker, 1 Phila. 271; Euwer v. Van Giesen, 180 6 W. N. C. 363 ; Brunswick v. Hoover, 10 Id. 219 ; Boynton v. Isaacs, Id. 190. 2 Craig’s Appeal, 77 Penn. St. 448 ; Walter v. Gemant, 18 Id. 616 ; Maytier v. Atwater, 88 Id. 496 ; Besbing v. Third National Bank, 93 Id. 79 ; Miller v. Irvine, 94 Id. 405. 1800] OF PENNSYLVANIA. 208 Waters v. McClellan. against Dewees; but he had left the goods in Dewees’ possession for four or five years. The charge contained the following points : Shippen, Chief Justice.—1st. It is incumbent on the plaintiff, to prove Lis property in the goods, which were taken by the sheriff ; and to do this, he has produced evidence of a former distress and sale of the same goods, for rent due from Dewees to him. But the defendants answer, that the distress was fraudulent; because (among other reasons) the goods were left in the possession of the debtor. In the case of a voluntary sale of goods, the law, both in Pennsylvania and England, regards the continuance of the debtor’s possession as a badge of fraud. In England, the law is the same, where the sale is made by the sheriff ;(a) but in Pennsylvania, a different rule, in that case, has prevailed; and where a relation or friend, after a fair purchase, at public sale, leaves the goods in the occupancy and use of the debtor, it never has been deemed a fraud upon creditors. As, therefore, the purchase, on the present occasion, was not by a private bill of sale ; but at an open, public vendue; the continued possession *by Dewees r*9nQ does not, in the opinion of the court, justify the defendant’s taking •-and sale. (5) 2d. It has been objected, for the defendants, that the plaintiff was bound to show, that the distress was made on the premises ; whereas, at least, a part of the goods appears to have been distrained elsewhere. However available this objection might have been, upon a replevin between the original parties, we do not think, that third persons can take advantage of it. 3d. It is urged, that there were a number of young cattle taken on the distress ; and that as these have been fed and reared, by the care and cost of Dewees, he had acquired a property in their increased value. Of the truth and operation of this allegation, the jury will consider; and if they are of opinion, that the expense of maintaining, has exceeded a fair compensation for the use of the cattle, they will make a reasonable deduction from the plaintiff’s demand. Verdict for the plaintiff. (a) This was an erroneous statement ; see Sturtevant ®. Ballard, 9 Johns. 342. (5) The defendant’s comsel cited the following cases on this point: 3 Co. 81; 2 T. R. 594, 5, 6; 1 Wils. 44. But see Levy ®. Wallis, ante, p. 167-8; Chancellor e. Phillips, post, p. 213 ; United States ®. Conyngham, post, p. 358 ; s. c. Walt 0. 0. 178. 181 209 SUPREME COURT [March Morris’s Lessee v. Neighman. (a) Settlement.— Vacating warrant. The settlement required by the act of 1 *792, § 9, need not be made within the time prescribed therein, if the warrant-holder was, by force of arms, prevented from making such settlement, provided he persisted in his endeavors to effect it, after the removal of the force; and in that case, he has not incurred a forfeiture of his land. Where a forfeiture of land, granted by the commonwealth, has been incurred, no advantage can be taken of it, except by the state, in the form directed by law.(d) Ejectment for land on the north-west of the rivers Ohio and Allegheny and Conewango creek. The plaintiff claimed under a warrant, dated the 4th of March 1793, on which a survey was executed, on the 12th of November, 1794 ; but he had made no endeavor to settle the land, until July 1796. The defendant claimed as an actual settler, under a settlement commenced in the year 1796, prior to any attempt by the plaintiff ; and upon a presumption that the plaintiff had incurred an absolute forfeiture of his rights, by not making a settlement within two years from the date of his warrant, according to the terms of the act of the 3d of April 1792. (3 Dall. Laws, 209.) But— By the Court.—In the charge to the jury, two points were expressly decided : 1st. That the plaintiff did not forfeit his rights, by not making a settlement within two years from the date of his warrant. It is notorious, that an Indian war existed from the year 1790, until General Wayne’s treaty, which was made on the 3d of August 1795, and ratified on the 23d „n of December 1795. The ratification of this treaty is to be considered J as the terminus d quo *a man might safely begin a settlement on the western frontier of Pennsylvania; and if, after that epoch, actual settlers or grantees persisted in their endeavors to make a settlement, they would not incur a forfeiture of the land. 2d. That even if it were a case of forfeiture, no individual could take advantage of it, by entering on the land : the advantage could only be taken by the commonwealth, whose officers might issue new warrants, in the form prescribed by the act of assembly. Verdict, accordingly, for the plaintiff. Ross, for the plaintiff. Brackenridge and Young, for the defendant. (a) Tried at Pittsburgh circuit court, May 1800, before Yeates and Smith, Justices, s. c. 2 Yeates 450; 2 Sm. Laws, 211, which are fuller reports of the case. (&) See Ewait’s Lessee ®. Highland, a 193 222 SUPREME COURT [Dec. Pollock v. Hall. the court ; but before or after declaration filed ; after demurrer joined and entered; after verdict on a writ of inquiry ; and even after a special verdict ; the leave of the court is granted, as matter of course. (Sherid. Pr. 534-5 ; Barn. 170; 6 T. R. G16 ; Cro. Jac. 35 ; 1 Salk. 178 ; Gilb. 272; 7 T. R. 6 ; Barn. 169 ; Carth. 87.) 2d. That the case of a trial by jury, and the case of a reference, do not, in this respect, differ. The act of assembly places a report of referees on the same footing as a verdict; and does not affect, in any manner, the power of the plaintiff over his suit. 3d. That the practice of Pennsylvania, both on general principles, and under the statute, has been uniform in favor of the plaintiff’s right. A discontinuance, indeed, no more requires the act of the court, than a non-pros., when the plaintiff prevents a verdict, though he could not prevent a trial. The records of the court will establish the right of discontinuance, before and after issue joined, by the mere act of the plaintiff : Lloyd's Lessees. Taylor, 2 Dall. 223 ; *Plym's Lessee v. Skilleribergen, Sept. T. 1765 ; Chew J v. Jones, Sept. T. 1767 ; Kerston v. Yeager, Sept. T. 1766 ; Neave n. Forbes, Sept. T. 1771. So, after reference. Lavis v. Porteer, Sept. T. 1798 ; FouTk's Lessee v. Pennicks, Sept. T. 1767. So, after judgment, plaintiff may open the judgment, and discontinue. Pringle v. Vaughan, Dec. T. 1797. So, after special verdict. Leech's Lessee v. Armitage, 2 Dall. 125. (a) So, even after a report of referees actually filed. Stcrret v. Chambers et al., Sept. T. 1757.(6) IK Tilghman and Morgan argued, against the right to discontinue. 1st. That, on general principle, there could be no discontinuance, without leave of the court, which would only be granted, on payment of costs. 2d. That after a jury was sworn, the plaintiff could not discontinue, though he might suffer a non-pros., which had consequences differing from those of a discontinuance. 3d. That the statute reference was of a peculiar character ; which implied the agreement of the parties to receive the report of the referees ; and which, by the operation of a set-off, frequently converted the defendant into the real plaintiff, with the remedy of a scire facias. In the course of the argument they cited Styles 198, 199 ; Cas. temp. Hardw. 200 ; (a) The special verdict was found, on the 21st of April 1775; and on the 22d of April, “the plaintiff, by Mr. Reed, his counsel, discontinues the action.” (6) The following is the docket-entry in this case: Sept. 1757. Ross. James Sterret Ata court of nisi prius, held at Carlisle, the 18th v. day of May 1768. By order of court and consent James Chambers, Nathaniel of parties, the matters in variance between them Smith, and Elizabeth his are referred to the final determination of James Chew, wife, Randle Chambers, J- Galbraith, John Byers, James Maxwell, Jonathan Dick. William Chambers, Jean Hogge and John Montgomery, or any three of Gal. Chambers, Mary Cham, them, who are to make report to the supreme court, bers, John Chambers and in next September. Rule, that the referees proMargaret Chambers. J ceed ex parte, on twelve days’ notice. 21st September 1768: Report of referees returned into the office, finding that the plaintiff hath no cause of action against the defendants. 24th September 1768: Before the sitting of the court, plaintiff came into the office, and discontinued his action. 194 1800] OF PENNSYLVANIA. W Pollock v. Hall. Gilb. C. P. 219 ; Cromp. Pr. 119 ; Garth. 87 ; 2 W. Bl. 815 ; 1 Dall. 430, 143, 355, 514. By the Coubt.—The case of Sterret v. Chambers et al. induced us to pause, before we decided the point now submitted to our consideration. It does not appear, however, that the right to discontinue was at all contested in that case ; and the other cases, cited from our records, do not import any judicial decision, that would be binding upon us, as authority, on the present occasion. In this situation, we think we are at liberty to deny the right for which the plaintiff contends ; and that the policy of the legislature, *as well . as the principles of justice, will sanction the denial. The act of as-sembly sought to compose strifes, to shorten litigation, by assigning an amicable tribunal, to which the parties might voluntarily resort : and when both have agreed to resort to that tribunal, it would be inconsistent with thé general nature of an agreement, to permit one of them alone to withdraw from its jurisdiction. Feuds would be inflamed, instead of being allayed ; and suits multiplied, instead of being diminished, by such a construction of the law. There may be cases, however, in which a plaintiff, alleging surprise or mistake, would be allowed by the court to discontinue his suit : but after an agreement to refer, a disclosure and hearing before the referees, and an opinion expressed or intimated by them, upon the merits, a discontinuance cannot be regarded as a matter of right, and would only be permitted upon very cogent reasons, such, perhaps, as would invalidate the report itself, (a) In the present case, we are of opinion, that the plaintiff had not a right to discontinue the suits ; and that no sufficient reason appears, for allowing a discontinuance upon the authority of the court. On the discussion of other exceptions to the report (one of which was, that a single report was made, though two suits were referred), it was agreed to consolidate the actions, and to refer the disputed points again to the same referees. (a) Though the plaintiff’s right to discontinue is, generally, a matter of course, it is subject to restrictions. An action cannot be discontinued, after the jurisdiction of arbitrators has attached ; which is considered as attaching from the moment of their appointment, and the cause is then out of court. Horn ®. Roberts, 1 Ash. 45. So, a plaintiff will not be permitted to discontinue, where it will give him an undne advantage, or tend to vex and oppress the defendant. Mechanics’ Bank ®. Fisher, 1 Rawle 341. In replevin, where the goods have been delivered to the plaintiff, the court will not give him leave to discontinue ; and there may be cases, where the court will refuse such leave, though the possession remains with the defendant, on his claim of property. Broom ®. Fox, 2 Yeates 530. A party cannot discontinue his suit, after a bond, fide assignment of the debt, to a third person, for a valuable consideration. McCullum ®. Coxe, I Dall. 139. Under a plea of payment, proof of the discontinuance of a suit cannot be given in evidence ; the defendant, by appearing and making defence, waives th? objection. Latapee ®. Pecholier, 2 W. 0. 0. 180. 195 224] * SUPREME COURT ' [March Mather v. Pratt et al. Assignment for the benefit of creditors. Where there is an assignment for the benefit of such creditors of the assignors, as shall, within a certain period, execute a general release to them, a creditor who has not executed the release, cannot maintain an action against the assignees, (a) This was an action brought by the plaintiff, as indorsee and holder of several promissory notes, made by Dorey & Bayhir, in favor of Joseph Mussi, against the defendants, to whom Dorey & Bayhir had assigned all their estate, in trust for the payment, pro rata, of such of their creditors, as should, within a certain period, execute a general release ; and the dividend of the non-assenting creditors was to be paid to them. The plaintiff had not executed the release ; and it was objected, that he could not sue the trustees, even for a dividend, in his own name, without performing the condition precedent. The Court were unanimously, and clearly, of this opinion; and the plaintiff suffered a nonsuit. (6) HI. Levy, for the plaintiff. Dallas, for the defendant. *225] *MARCH TERM, 1801. Commonwealth v. AsDiBQiS, Information. If the presiding judge of a court of common pleas, wilfully prevent an associate from delivering his sentiments to the grand jury, after the president has concluded his charge; it is not an indictable offence, and therefore, not a case in which an information will ba granted; but every judge has a right, and it is emphatically his duty, to deliver his sentiments, upon every subject that occurs in court. The Attorney-General made a motion, for a rule to show cause why an information should not be granted against the defendant, the president of the courts of common pleas, in the fifth circuit ; on the affidavit of J. C. Lucas, an associate judge of the court of common pleas of Allegheny county, stating that he had been wilfully prevented by Mr. Addison, from deliver- (®) Where a voluntary assignment has been made for the benefit of such of the creditors of the assignor, as shall, within a specified time, execute a release of their debts, a creditor must release within the time specified, or he will not be entitled to a dividend, though he should execute a release, before any dividend has been declared. Cheever v.. Imlay, 7 S. & R. 510. It is not sufficient, that an offer to release has. been made, within the specified time, nor will the acceptance of the trust by an assignee, who is a creditor, entitle him to the benefit of it, if he has failed to execute the .release within the time. Pearpoint v. Graham, 4 W. C. C. 232. But a release, executed after the specified time, will discharge the debt, where there is neither fraud nor mis take. Coe v. Hutton, 1 S. & R. 398. (ft) After this nonsuit, the plaintiff issued a foreign attachment against Dorey & Bayhir, and attached the dividend in the hands of the defendants, which was, eventually, recovered. -198 1801] OF PENNSYLVANIA. Wainwright v. Crawford. 225 ing his sentiments to the grand jury, after Mr. Addison, as President, had concluded his charge, &c. In support of the motion, the attorney-general cited 1 Reeves Hist. Eng. Law, 201, c. 4 ; 2 Ibid. 2 ; Jacob’s L. Diet. tit. “Chapitre ;” 4 Bl. Com. 303; Const. Penn. art. V. § 4; 6 Mod. 96. But—- Bv the Court.—We are unanimously of opinion, that the case does not present to our consideration an indictable offence ; and, of course, it is not a case, in which an information ought to be granted. But we are (with the same unanimity) of opinion, that every judge has a right, and, emphatically, that it is his duty, to deliver his sentiments upon every subject that occurs in court. We add, so far as the expression of our sense of decorum m^y have weight, that we think, it would be indecent and improper, in any presiding judge, to attempt to prevent his associates from the exercise of this right; from the performance of this duty. Motion refused.1 *Wainwright et al. v. Crawford, (a) [*226 Master of vessel. The master of a vessel may bind his owners, personally, by borrowing money to make necessary repairs to the vessel, in a foreign port, if the lenders, after due inquiry, did not know that the master had sufficient funds to relieve the necessity. This was an action on thè case, brought by foreign merchants, against the defendant, to recover the amount of money lent to the master, to pay for disbursements in repairing and supplying his ship in a foreign port. It was proved, by the evidence of the master, that he had no funds belonging to his owner, or to himself ; and that he borrowed the money from the plaintiffs, to make the necessary repairs of the ship, for the prosecution of her voyage. Moylan, for the defendant, observed, that the power of the master of a ship, extended no further, than to authorize him to hypothecate the ship herself, in a foreign port, for absolute necessaries : but he contended, that the master could not, under any circumstances, personally bind the owners. Moll. c. 1, 6, 2, §10, § 14 ; Beawes’ L. M. 95-6 ; 1 T. R. 18 ; 2 Dall. 195 ; 1 Salk. 35 ; 2 Ld. Raym. 984. Ingersoll and Franklin, for the plaintiffs, insisted, that every person who supplied a ship, had a triple security; to wit9 the master, the owner and the ship ; that, by the maritime law, the master was the authorized agent of the owners, in foreign ports ; and that, independent of his power to bind the ship herself, he might bind the owners personally, upon proof that the money or supplies went to their use. Cowp. 636 ; 1 Ves. 443 ; 1 T. R. 73 ; 2 Vern. 643 ; 14 Vih. Abr. 300, pl. 9. (a) s. c. 3 Yeates 131, which is a better report. 1 Judge Addison was subsequently impeached and disqualification from thereafter holding for the cause assigned, and having been con- the office of judge, within the state. See Addi~ victed, was sentenced to removal from office, son’s Trial, 154. And see Porter’s Trial, 61. 197 226 SUPREME COURT Austyn v. McLure. [Sept. Shippen, Chief Justice.—If the jury are satisfied (and the evidence is strong upon the point) that there was an actual necessity for borrowing the money, to repair the ship, the plaintiffs ought to recover. The lender i? bound, it is true, to make due inquiry, whether the repairs are necessary ; and whether the master has effects in his hands, sufficient to defray the expense of repairing, without resorting to a loan : but he is not bound to know, nor to inquire, what is the state of the accounts between the owner and the master. If, therefore, the case of necessity existed; and the plaintiffs did not know (for we fix on their knowledge as the test) that the master had sufficient funds in possession, to relieve the necessity; we think that the contract of the master will bind his owners, personally, (a) Verdict, accordingly, for the defendant. *227] *SEPTEMBER TERM, 1801. Austyn v. MoLube. Consideration. The smallest spark of benefit or accommodation is sufficient, to create a valid consideration foi a promise.1 Case, on a special assumpsit. The declaration contained three counts, of each of which, the following is the substance. 1st Count.—After stating that a controversy subsisted between the plaintiff and one Rowson (a British merchant, for whom the defendant was agent); that they had agreed to enter an amicable action and reference, in the federal circuit court, and that the referees met on the 12th of January 1798 ; the declaration proceeded, that at the said meeting, “ it was agreed between McLure and Austyn, that in consideration that the said Austyn would waive all objections to the referees proceeding to arbitrate between the said Rowson and Austyn, and would submit the matters in controversy between them to the said referees; as also in consideration of the said Austyn’s having promised, on demand thereof made, to give security to pay to the said McLure whatever sum the said referees might award to be paid to the said Rowson, should the said referees decide the said controversy and dispute against the said Austyn, he the said McLure undertook, &c., that he would well and truly pay the said Austyn whatever sum of money the said referees might award to be due from the said Rowson to the said Austyn.” And the declaration then averred, “ that Austyn did waive all objections, &c., and (a) The owner of a vessel cannot be made personally liable, by the contracts of the master, in a foreign port, when he has not authority to hypothecate the vessel ; and he cannot hypothecate the vessel, while there are goods of his own, or of the owner, on board. Cuspino v. Perez, 2 Dall. 194. 1 s. p. Greeves v. McAllister, 2 Binn. 591 ; Lancaster, 5 Penn. St 160 ; Cunningham v. Hassinger v, Solms, 5 S. & R. 4 ; Bull v. Allen, Garvin, 10 Id. 866 ; Harlan ». Harlan, 20 Id. 11 Id. 53 ; Hind v. Holdship, 2 Watts 104 ; 808 ; Muirhead v. Kirkpatrick, 21 Id. 287. Smith v. Plummer, 5 Whart. 89 ; Mercer v. 198 1801] OF PENNSYLVANIA. Austyn v. McLure. 227 always was ready to give to the said MeLure the said security above mentioned, when he should be required by the said McLure. And that the referees awarded a balance of 81454.06 to be due from Rowson to Austyn, &c.” 2d Count.—After stating the agreement to arbitrate between Rowson and Austyn, the declaration proceeded, that “ in consideration that the said Austyn had, at the request of the said *McLure, promised and under- r*99R took, when he should be thereunto required by the said McLure, to procure good and sufficient security for the performance of the award which should be given by the said arbitrators, and for the payment of the sum which might be awarded against the said Austyn, the said McLure did, on his part, undertake, &c., to the said Austyn, to perform the said award on the part of the said Rowson, if it should be given against the said Rowson, by the said arbitrators, and to pay to the said Austyn, when thereto lawfully required, whatever sum of money might be awarded to be due from the said Rowson to the said Austyn, &c.” The declaration then made an averment of the award as before; and “ that the said Austyn was always ready and prepared well, &c., to perform his said promise and undertaking, and to give good and sufficient security, when he should be thereto required by the said McLure, &c.” 3d Count.—After stating the same agreement to arbitrate, the declaration proceeded, “ that in consideration that the said Austyn would not object to the said referees proceeding to hear and determine the disputes and controversies aforesaid, without delay, and in consideration that the said •referees would so proceed, without delay, the said McLure promised, &c., that he would perform the award of the referees, &c.” The declaration then averred, “ that Austyn did not object, &c., that the arbitrators proceeded, without delay, &c., and made their award, &c.” On the evidence, it appeared, that after the referees had met, more than once, Austyn (whose circumstances were considerably embarrassed) observed, “ that he wished to understand, in what situation he would be placed, if the award should be against Rowson ; for if it went against him, he was present to answer the demand ; or, should he be thought insufficient, he was ready to produce satisfactory security to answer it.” McLure replied, “that he was Rowson’s agent, and stood in Rowson’s place or stead.” The referees understood, that Austyn’s offer of security was meant, “ if it should be required by McLure,” who did not ask it, though he never waived it: and that McLure’s declaration was meant, “ that he would himself be answerable, in case the award was against Rowson.” The referees proceeded to hear and decide upon the case; and nothing further passed between the parties on the subject of security. Austyn, however, it appeared, had applied to Mr. Gallaudetto be his surety, at some time in 1797 or 1798 (the witness could not recollect when, nor what passed upon the occasion), and Mr. Gallaudet, having then funds of Austyn’s in his hands, said, “ that he would have become the surety, if it had been then further requested.” On these facts, the plaintiff’s counsel {Ingersoll, Hallowell and Todd) contended, that the special assumption of the defendant *was proved; r*99Q and that there was a good legal and equitable consideration to sus- L tain it. In the course of the argument, they cited the following authorities. Oro. Eliz. 543, 703; 1 Com. Dig. 199 ; 5 Mod. 411, 412; Cro. Eliz. 67, 70; 199 229 SUPREME COURT [Sept. Commonwealth v. Dallas. 3 Burr. 1666 ; 1 Com. Dig. 200; 1 Bac. Abr. 267 ; Com. Rep. 99 ; 12 Mod. 457 ; 1 Pow. Cont. 344. The defendant’s counsel {Dallas) contended, that whatever might be the impressions or inferences of the referees, the declaration of McLure did not, in itself, amount to an express assumpsit; that it was not a case, in which an implied assumpsit could be raised ; that, at most, it was a mere gratuitous undertaking, without any possible consideration, beneficial to McLure ; a nudum pactum, on which no action could be maintained; and that the consideration was not proved by the evidence, as it was laid in the declaration. 2 Bl. Com. 445; 3 Ibid. 159; Bull. N. P. 147; Bulstr. 120; Dyer 272 ; 2 Burr. 1666 ; Cro. Eliz. 79 ; 2 Burr. 1671. The Court delivered a charge to the jury, in which they stated, that the smallest spark of benefit or accommodation, was sufficient to create a valid consideration for a promise ; and intimated, that their opinion was decidedly in favor of the plaintiff, (a) Verdict, accordingly, for the plaintiff. Commonwealth v. Dallas, Attorney of the United States, &c. (5) Recorder of Philadelphia. The Recorder of the city of Philadelphia is not a judge, within the meaning of the 8th section of the 2d article of the constitution of the state of Pennsylvania. Quo Warranto. The President having honored the defendant with an appointment, as attorney of the United States for the eastern district of Pennsylvania ; and the Governor having been pleased also to appoint him Recorder of the city of Philadelphia ; it was thought, by some of the members of the select and common councils, that the tenure of these offices, by by the same person, at the same time, was constitutionally incompatible. And in order to try the question, Mr. Hopkinson, the solicitor of the corporation, was instructed to move the supreme court, for leave to file an information (on the relation of the select and common councils), (c) in nature of a writ of quo warranto, to inquire by what authority the defendant exer-*2301 cise<^ the office of recorder. *It was agreed, that the merits of the J case should be discussed and decided upon this preliminary motion, in order to avoid any public inconvenience ; as the defendant declared his determination not to act as recorder, while a doubt rested upon his right. The case turned principally on the construction of the 8th section of the 2d article of the constitution of Pennsylvania ; which is expressed in these words : “No member of congress from this state, nor any person holding (a) Brackenridge, Justice, seemed to dissent from the opinion of the court, with this remark: “ The English books say, that there must he a spark of consideration (though a single spark is enough) to maintain an action upon a promise: but in this case, the court have blown out the spark; and I cannot perceive, whence they get light sufficient to enable them to decide for the plaintiff.” (&) s. c. 8 Yeates 800. (c) The court declared, that upon a proceeding of this kind, it was necessary to name the relator, at whose instance it was instituted. 200 1801] OP PENNSYLVANIA. 230 Commonwealth v. Dallas. or exercising any office of trust or profit under the United States, shall, at the same time, hold or exercise the office of judge, secretary, treasurer, prothonotary, register of wills, recorder of deeds, sheriff, or any office in this state, to which a salary is by law annexed, or any other office which future legislatures shall declare incompatible with offices or appointments under the United States.” The argument was conducted, with great and equal ability and candor, by Messrs. Hopkinson, H Tilghman and Lewis, in support of the motion ; and by Messrs. Ingersoll and McKean, against it. In support of the motion, it was stated, as a foundation, that the Recorder of the city of Philadelphia is a judge ; and consequently, within the clause of the constitution, which excludes an officer of the United States, from holding or exercising the office of a judge, in this state. It was said, that the policy of the exclusion originated in a jealousy, lest the federal government should overshadow the state governments ; and if there was a doubt upon the subject, that policy required a decision, affirming the incompatibility of thé offices in question. The commission, duties and powers of the recorder were then analyzed, with a view to prove that his office was a judicial character ; particularly, when he acted as the organ of the mayor’s court ; and that it was not the name (as a recorder, a justice, &c.), but the duty, which constituted a judge. 2 Dall. Laws, 658, § 14 ; Ibid. 660, § 19, 20 ; Ibid. 662, § 22 ; Const. Penn., Art. V., § 1 ; 4 Dall. Laws, 75. Nor, it was insisted, did he merely perform his judicial functions as a ministerial agent of the corporation ; but he was, in fact and in law, a judge, within the meaning of the constitution, and the interpretation of the most authoritative writers. Cun. Law Diet. “ Judge ;” Johnson’s Diet. “Real;” Jac. L. Diet. “Judge;” 1 Bl. Com. 269 ; 4 Ibid. 84, 125 ; 1 Bae. Abr.; 3 Bl. Com., in App. 3, 38-40 ; 4 Inst. 73, 23 ; 6 Co. 20; 9 Ibid. 118 ; 1 Hale H. P. C. 231 ; Cro. Car. 146 ; 1 Bl. Com. 269 ; 12 Wm. HL; 1 Geo.III.; 1 Tidd 426; Min. of Conv. 81, 85,138,139, 194, 198. In opposition to the motion, it was premised, that further than the constitution has prescribed, a spirit of'jealousy, between the federal and state governments, ought not to be encouraged : and *the argument was pursued upon the following general propositions : 1st. That the 8th L section of the 2d article of the constitution, does not include in its prohibition, any other than the state officers. 2d. That the Recorder of the city of Philadelphia is not ‘an officer of the commonwealth or state ; but an officer of the corporation. 3d. That the recorder, according to the letter, the spirit and the meaning of the constitution, is not a judge. The following books were cited on these several propositions ; Min. Coun. Cens. 139, 140, 141, 142 ; 2 Dall. Laws, 546, 334, 565, 634, 636, 658 ; Const. Penn. 1776, ch. 2, § 9 ; 2 Dall. Laws, 654, § 1, § 14 ; 4 Bl. Com. 84-5, 126; Cro. Car. 373 ; 1 Hale P. C. 58, 440; Ibid. 231; 9 Co. 118 b ; 2 T. R. 87 ; Cro. Car. 138 ; Sir William Jones, 193 ; Cro. Eliz. 76 ; 3 Burr. 1615, 1616 ; 1 Sid. 305 ; Doug. 382; 2 T. R. 88 ; Priv. Lond. 16, 23, 25, 63, 64 ; 1 Kyd 426 ; 2 Ibid. 80, 82, 83 ; 1 Bl. Com. 76 ; 3 Ibid. 334, 60 ; 6 Co. 20 ; Cro. Car. 146 ; 9 Co. 1186 ; Str. 1103 ; 1 Burr. 542 ; 12 & 13 Wm. HL, c. 2, § 3 ; 1 Geo. III., c. 23 ; Min. Conv. 39, 63, 78, 82, 126, 138. The argument was, unavoidably, protracted until late in the last day 201 231 SUPREME COURT [March Falconer v. Montgomery. of the term ; and the judges, declaring that the question was of too much importance to be decided without deliberation, directed a curia advisare vult until the next term; when the unanimous opinion of the court, was delivered by— Shippen, Chief Justice.—That although the Recorder of the city of Philadelphia possesses some powers, and performs some duties, of a judicial nature, he is not a judge, within the terms, spirit and meaning of the 8th section of the 2d article of the constitution. The motion for leave to file an information in the nature of a quo warranto, was, therefore, refused. *232] *MARCH TERM, 1802. Falconer v. Montgomery et al. Award. Where, on a reference to two persons, with power to choose an umpire, if they should disagree, an umpire is appointed, who receives the statement of the case from the referees, in the absence of the parties, and without hearing them, the award will be set aside.1 This was a replevin for fifteen hogsheads of rum ; and the matters in dispute were referred to James Currie and David Winchester, with power to choose an umpire, if they disagreed. The two referees met, by consent of parties, in Baltimore ; and both sides were fully heard ; the evidence being all in writing, and no part of it rejected. It appeared, however, that the plaintiff objected to the consideration and decision of any other matter than the claim to the rum, for which the replevin was brought; while the defendants insisted upon an investigation of all the commercial transactions between the parties. The referees divided in opinion upon these propositions ; and appointing Joseph Williams, as an umpire, they stated to him (in the absence of the parties) the facts, as they had previously appeared to them. The umpire then examined the accounts produced to him (the parties being still absent), concurred in opinion with the referee, who thought that the reference was confined to the dispute about the rum; and signed, with him, a report, in favor of the plaintiff, for $1837.45 ; but the other referee, persevering in his opinion of the general nature of the subject submitted, declined joining in the report. Exceptions were filed by the defendants; but the only one pressed in argument, upon the court, was, “ that the umpire had not himself heard, from the parties themselves, their respective allegations and arguments on the merits of the controversy.” For the defendants, it was urged, that an umpire, being a judge, ought to hear for himself, and not through another, the evidence and the reason-ing, on which he is to decide; that it is also the right of every suitor, J to be heard himself, originally, *and not to have his cause depend 1 Passmore v. 202 1802] OF PENNSYLVANIA. Falconer v. Montgomery. 283 upon a second-hand report of his proofs and arguments; and that, in the presen-j instance, the umpire might have been induced to view the facts and principles of the case, in a different point of light, if they had been presented by the parties, who were alone interested to give them all their force. (1 Dall. 293.) For the plaintiff, it was observed, that however widely the parties differed on facts and principles, the referees knew no diversity of sentiment, but upon the single question, how far the rule of reference extended. Their general statements, therefore, to the umpire, were in unison ; and he examined for himself, all the accounts, which the parties had exhibited. It has been decided, in Hall v. Lawrence, 4 T. R. 589, that the award of an umpire will not be set aside, because he received the evidence from the arbitrators, without examining the witnesses himself, unless such a reexamination was expressly requested. By the Court.—The case of Hall v. Lawrence was decided in 1792. It is not, therefore, binding upon us, as an authority ; and upon principle, we cannot accede to the decision. The plainest dictates of natural justice must prescribe to every tribunal, the law, that “ no man shall be condemned unheard.” It is not merely an abstract rule, or positive right; but it is the result of long experience, and of a wise attention to the feelings and dispositions of human nature. An artless narrative of facts, a natural and ardent course of reasoning, by the party himself, will sometimes have a wonderful effect upon a sound and generous mind ; an effect which the cold and minute details of a reporter, can neither produce nor supplant. Besides there is scarcely a piece of written evidence, or a sentence of oral testimony, that is not susceptible of some explanation, or exposed to some contradiction: there is scarcely an argument that may not be elucidated, so as to insure success ; or controverted, so as to prevent it. To exclude the party, therefore, from the opportunity of interposing, in any of these modes (which the most candid and the most intelligent, but a disinterested, person, may easily overlook), is not only a privation of his right, but an act of injustice to the umpire, whose mind might be materially influenced by such an interposition. Under these impressions, and upon the single ground to which they relate, we are, unanimously, of opinion, that the report of the referees must be set aside. Report set aside. M. Levy and Franklin, for the plaintiff. Ingersoll, Moylan and Hop' kinson, for the defendants. 208 *234 SUPREME COURT ^March ♦Levy v. Bank of the United States, (a) Banks.—Consideration. Where a forged check of a customer is received by a bank, as cash, and passed to the credit of a depositor (who is ignorant of the forgery, and who has paid the full value of the check), it is equivalent to an actual payment, and if the depositor, after having been informed of the forgery, on a sudden misconception of his rights, agrees, that if the check is a forgery, it is no deposit; it will not constitute a promise to refund. This was an action brought upon the following circumstances, which appeared in evidence upon the trial of the cause. The plaintiff, Mr. Levy, kept his cash account with the Bank of the United States. On the 3d of August 1798, between 11 and 12 o’clock in the forenoon, his student presented for payment a check on the bank, dated the 31st of July 1798, purporting to be drawn by Charles Wharton, in favor of Joseph Thomas (to whom Mr. Levy had paid the money), or bearer, for $2600 : and the amount was regularly and promptly entered to Mr. Levy’s credit, in his cash-book, in the usual form, as of a deposit of cash. At the examination of the checks, in the afternoon of the same day, the check in question was discovered to be a forgery; the entry was cancelled in the bank-books; and one of the clerks was sent to Mr. Levy, about 4 o’clock, to inform him of it, to return the forged check, and to demand his check in lieu of it. This clerk, at first, told Mr. Levy, that the check was not good, because Mr. Wharton had not the money in bank; to which Mr. Levy replied, “that is nothing to me.” The clerk then told him, that the check was forged ; on which Mr. Levy, with great surprise, said, “that he would take until tomorrow, to consider of the propriety of giving his own check in exchange for it.” The clerk urged an immediate exchange of checks, declaring, “ that although he was not authorized by the cashier to give such notice, he was confident the amount of the forged check would be retained by the bank, in their account with Mr. Levy.” The clerk deposed, that Mr. Levy thereupon answered : “ On that score, we are perfectly agreed ; if the check is a forgery, it is no deposit; but I wish some time, to ascertain the fact.” On the 4th of August, however, Mr. Levy informed the president of the bank, that he would not refund the money, nor allow the entry to his credit, to be erased from his bank-book. He then drew a check on the bank, for the balance of his account, which was paid, except to the amount of the forged check ; and to recover that amount, the present action was instituted. It also appeared in evidence, that Thomas’s forgeries were suspected by individuals, so early as thie 31st of July, but the fact was not generally known until the 3d of August 1798 ; that between 9 and 10 o’clock of the night of the 3d of August, he executed, in Philadelphia, an assignment of his property, in trust for the benefit of his creditors; and that an hour or two afterwards, he absconded from the city. The cause, upon these facts, underwent three several arguments : 1st, on the trial before the jury ; 2d, on a motion for a new trial; and 3d, on a *2351 error, in the high court of errors and appeals : but in every J stage, the decision was in favor of the plaintiff; and the points of (a) s. c. 1 Binn. 27, where the case is more fully reported. 204 1902] OF PENNSYLVANIA. 235 Levy v. Bank of the Whited States. argument, and the authorities cited, were the same, throughout the discussion. For the plaintiffs it was contended : 1st. That the entry in the bankbook was tantamount to a payment in cash of the forged check ; and that it was on the ground of that payment, not of the forgery, the plaintiff claimed. 2d. That the bank,, the drawees of the check, had no power to rescind or annul the payment, on account of the subsequent discovery of the forgery. 3d. That the plaintiff’s sudden misconception of his legal rights, in his conversation with the clerk of the bank, did not constitute a promise to refund, in law, equity or conscience. And the following authorities were cited, in the course of the argument: 2 Str. 946 ; 1 H. Bl. 316 ; 1 Salk. 127 ; 4 Vin. Abr. 265, pl. 3 ; 2 Barnard. 82 ; Bull. N. P. 273 ; 3 Burr. 1516 ; 7 T. R. 420 ; 3 Burr. 1355 ; 1 W. Bl. 390 ; 1 T. R. 655 ; Kyd on Exch. 134, 48, 100 ; 3 T. R. 127, 129, 132, 325, 335 ; 4 Ibid. 325, 335 ; 7 Ibid. 604, 612 ; Ambl. 503 ; Doug. 611, 637 ; 3 Woodes. 115; 7 T. R. 423, 430; 6 Ibid. 139, 143 ; Cowp. 565 ; Leach C. L. 189 ; 5 Burr. 2670 ; 1 T. R. 713 ; 2 Bro. Ch. Ca. 150 ; United States v. JBank.(a) For the defendant, it was contended : 1st. That the entry to the plaintiff’s credit, in the bank-book, was made by mistake ; was corrected as soon as it was discovered ; and was not, in its nature, nor in mercantile usage, equivalent to a payment in cash. 2d. That although there were some features of similitude between bills and checks, they were not so strictly analo-gous (for instance, there is no acceptance of a check, and so it is not taken on the acceptor’s credit), that all the principles applicable in the one case, must govern in both cases. 3d. That the acceptor of a bill of exchange is not precluded from showing, that the drawer’s handwriting is forged, in an action brought by the payee. 4th. That the plaintiff’s conversation with the clerk of the bank amounted to a promise to refund ; or, at least, induced the bank to suspend any inquiry for Thomas. 5th. That the plaintiff is not entitled to recover, because he claims through a felony. And the following authorities were cited : 1 Burr. 642 ; 6 T. R. 189, 143 ; 1 Ld. Raym. 743 ; 2 Str. 946 ; 1 H. Bl. 316 ; 1 Salk. 127 ; 2 Str. 1051 ; 1 Ibid. 648 ; Kyd 60, 90 ; IT. R. 654-5 ; 3 Ibid. 127 ; Cowp. 566 ; 6 T. R. 139 ; 2 P. Wms. 76 ; Ambl. 503 ; *2 Bro. Ch. 150 ; 2 T. R. 420, 424 ; Kyd 202-3 ; 1 T. R. 167 ; 1 Str. 508 ; 2 Ibid. 1175 ; 1 Ld. Raym. 444. The Covet delivered a charge to the jury decidedly in favor of the plaintiff; the Chief Justice declaring, that he thought any attempt to distinguish between a credit in the bank-book of a customer, and an actual cash payment, as impolitic on the part of the bank, as it was unjust towards the individual, who accepted the credit, instead of his money. The verdict found for the plaintiff the sum demanded and interest: and (a) United States v. Bank of the United States. This cause was tried in the federal circuit court, on the 17th of October 1800, before Paterson and Peters, Justices. In the course of the discussion, Ingersoll, for the defendants, admitted and stated, that if a man accepts a forged bill or draft, he is not only conscientiously, but legally bound to pay it. And each of the judges expressly declared their concurrence in the admission. 236 SUPREME COURT JSept. Attorney-General v. The Grantees. (after an ineffectual motion for a new trial, as above stated) a judgment was rendered upon the verdict, which was affirmed upon a writ of error. Ingersoll, E. Tilghman, McKean and Dallas, for the plaintiff. Rawls and Lewis, for the defendants. *237] *SEPTEMBER TERM, 1802. Attorney-General v. The Grantees under the act of April 1792. Land-warrants.—Patents. Warrants granted under the act of 3d April 1792, are not ipso facto void, where the conditions of settlement and residence, within the time specified therein, have not been performed: the case of every such warrant, must depend on, and be governed by, its own peculiar circumstances. Patents, and prevention-certificates recited in the patents, are not conclusive evidence against the commonwealth, or any person claiming under the act, that the patentees have performed the conditions enjoined on them, although they have pursued the form prescribed by the land-officers.(a) On the 2d of April 1802, an act of the general assembly was passed, entitled “ An act to settle the controversies arising from contending claims to land, within that part of the territory of this commonwealth north and west of the rivers Ohio and Allegheny and Conewango creek” (P. L. 153), by which the judges of the supreme court were directed to devise an issue, for trying the following questions, at Sunbury, in Northumberland county: 1st. Are warrants heretofore granted under the act of the 3d of April 1792, valid and effectual in law, against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the said act, at any time before the date of such warrants, respectively, or within two years after ? 2d. Are the titles that have issued from the land-office, under the act aforesaid, whether by warrant or patent, good and effectual in law, against this commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority and have been grounded upon the certificates of two justices of the peace, usually called preventioncertificates, without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence required by the said act, could not be complied with ? The judges, having devised and published the form of a feigned issue, *2381 on a waSerJto try these questions ; having given public *notice, that J all parties interested in the issue would be heard at the trial; and having settled and prescribed the other necessary proceedings; three of (a) See McLaughlin’s Lessee v. Dawson, ante, p. 221-2, and note. / 206 1802] ’ OF PENNSYLVANIA. 238 Attorney-General v. The Grantees. them (Yeates, Smith and Brackenridge, Justices) assembled at Sunbury, on the 25th of November 1802 ; when a jury was impanneled, and the case argued by the attorney-general (McKean), TK Tilghman and Cooper, for the commonwealth, in the negative of the propositions contained in the questions ; but no counsel appeared to argue in the affirmative, (a) On the next day, the presiding judge delivered the following charge to the jury : (a) The reasons for not embracing this opportunity to discuss the subject, are assigned by the counsel of the Holland Company, in a letter addressed to the judges of the supreme court: “Gentlemen—Having attentively considered the suggestions which were made yesterday, during the conference at the chambers of the Chief Justice, on the subject of the act of the general assembly, passed at the last session, with a view to settle the controversies arising from contending claims to lands north and west of the rivers Ohio find Allegheny and Conewango creek, we beg leave briefly to submit the result, as a justification for the advice that will be given to our clients. 1st. Although the Holland Company and their counsel cannot approve the terms of the preamble of the act, by which the legislature has undertaken to declare the meaning and construction of the original contract (the very point in controversy), and though they cannot admit the right or propriety of dictating a new, and, perhaps, unconstitutional mode of settling a judicial question, without the assent of all the parties in interest; yet they feel the importance of an early decision, and would cheerfully concur in any form of proceeding, by which the merits of the case could be fully and fairly investigated and decided. 2d. The merits of the case on the part of the Holland Company, as disclosed to the supreme court, on the motion for a mandamus, and as presented to the legislature, evidently involve the following considerations: 1st. Whether the company have vi’nplied with the condition of the 9th section of the act of April 1792? 2d. Whether the reasons assigned for a non-compliance with the condition, bring their case within the proviso ? 3d. Whether the proviso operates upon cases that are brought within its terms, to discharge the condition entirely, or only to enlarge the time for performing it ? 4th. Whether the company have so persisted in their endeavors to perform the condition, as to be still within the benefit of the proviso ? And Sth. Whether the government, by prescribing the evidence, on which patents had actually issued, in cases brought within the proviso, could now take advantage of the forfeiture for a supposed non-compliance with the original condition ? 3d. But the questions which the legislature has proposed, are the following ? 1st. Are warrants heretofore granted under the act of the 3d day of April 1792, valid and effectual in law against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence required by the said act, at any time before the date of such warrants respectively, or within two years after ? 2d. Are the titles that have issued from the land-office under the act aforesaid, whether by warrant or patent, good and effectual in law against this commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority, and have been grounded upon the certificates of two justices of the peace, usually called “ prevention-certificates,” without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence required by the said act, could not be complied with ? These questions, in our opinion, exclude an investigation and decision upon any other point than the following: 1st. Whether, if the Holland Company have not performed the condition, on which the warrants originally issued, within two years, though the residence could not be completed until the expiration of five years, the state is barred from granting the same lands to other applicants ? And 2d. Whether patents having issued 207 *239 SUPREME COURT [Sept. Attorney-General v. The Grantees. * Yeates, Justice.—That the decision of the court and jury on the present feigned issue should “settle the controversies arising from contending claims to lands north and west of the rivers Ohio and Allegheny and Conewango creek,” is an event devoutly to be wished for by every good citizen. “ It is indispensably necessary that the peace of that part of the state should be preserved, and complete justice done to all parties interested, as effectually as possible.” (Close of Preamble to the Act of 2d of April 1802, p. 155.) We have no hesitation in declaring, that we are not without our fears, that the good intentions of the legislature, expressed in the law under which we now sit, will not be effected. We hope, we shall be happy enough to acknowledge our mistake hereafter. It is obvious, that the validity of the claims of the warrant-holders, as well as of the actual settlers, must depend upon the true and correct construction of the act of the 3d of April 1792, considered as a solemn contract between the commonwealth and each individual. The circumstances attendant on each particular case, may vary the general legal conclusion in many instances. We proceed to the discharge of the duties enjoined on us by the late act. *9401 *^e question proposed to our consideration is as follows : Are J warrants heretofore granted under the act of the 3d of April 1792, valid and effectual in law, against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the said act, at any time before the date of such warrants respectively, or within two years after ? It will be proper here to observe, that on the motion for the mandamus to the late secretary of the land-office, at the instance of the Holland Company, the members of the court, after great consideration of the subject, were divided in their opinion. The Chief Justice seemed to be of opinion, that if the warrantee was, “ by force of arms of the enemies of the United on the evidence of prevention-certificates alone, they are not void, so as to authorize the state to sell the same land to other purchasers ? 4th. On the first of these points, we observe, that it has never been contended that the Holland Company have performed the condition within two years ; but only, that the condition was discharged or suspended by the operation of the proviso, on the facts of their case; particularly, the fact that an Indian war existed for several years, beyond the term of two years specified in the act of assembly. And on the second point, it is sufficient to say, that although the prevention-certificate was the evidence prescribed by the public officers, and ought, therefore, to be binding on the government, yet that, even waiving that objection, the patentees will be deprived of their land, when other satisfactory and legal evidence was, and is, in their power, to prove the circumstances which entitled them to patents. , Without recurring to the many other obvious objections to the form and provisions of the act of assembly, we are confident, that the view which has been offered upon he subject, will justify our advising the Holland Company to decline becoming a party to the suit proposed to be instituted; since, we repeat, a decision on the two abstract questions proposed by the legislature, would still leave untouched and undecided,-the great and essential part of the controversy.. J. Ingersoll, W. Lewis, * Philadelphia, June 24, 1802. A, J. Pallas.” Laos j 1802] OF PENNSYLVANIA. 240 Attorney-General v. The Grantees. States, prevented from making an actual settlement, as described in the act, or was driven therefrom, and should persist in his endeavors to make such actual settlement thereafter,” it would amount to a performance of the condition in law. Two of us (Yeates and Smith) thought, that in all events, except the death of the party, the settlement and residence contemplated by the act, should precede the vesting of the complete and absolute estate, and that “ every warrant-holder should cause a settlement to be made on his lands, within two years next affer the date of the warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture, by a new warrant; but if, nevertheless, he should be interrupted or obstructed by the force of the enemy from doing those acts, within the limited periods, and should afterwards persevere in his efforts, in a reasonable time after the removal of such force, until these objects should be accomplished, no advantage shall be taken of him, for the want of a successive continuation of his settlement.” To this opinion, Judge Brackenridge subscribes. It would ill become us to say, which of these constructions is entitled to a preference. It is true, that in the preamble of the act of the 2d of April 1802 (p. 154), it is expressed, that “it appears from the act aforesaid (3d of April 1792), that the commonwealth regarded a full compliance with those conditions of settlement, improvement and residence, as an indispeus-able part of the purchase or consideration of the land itself.” But it is equally certain, that the true test of title to the lands in question, must be resolved into the legitimate meaning of the act of 1792, extracted ex viceri-bus suis, independent of any legislative exposition thereof. I adhere to the opinion which I formerly delivered in banc; yet, if a different interpretation of the law shall be made by courts of a competent jurisdiction in the dernier resort, I shall be bound to acquiesce, though I may not be able to change my sentiments. If the meaning of the first question *be, are titles r*241 under warrants, issued under the law of the 3d of April 1792, for lands north and west of the rivers Ohio and Allegheny and Conewango creek, good and available against the commonwealth, so as to bar the granting of the same land to other applicants, where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the law, at any time before, or within two years after, the dates of the respective warrants, in time of profound peace, when they were not prevented from making such actual settlement by force of arms of the enemies of the United States, or reasonable and well-grounded fear of the enemies of the United States ? The answer is ready in the language of the acts before us, and can admit of no hesitation. “No warrant of survey for those lands shall vest any title, unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, &c.; and in default thereof, it shall and may be lawful to and for the commonwealth to issue new warrants, to other actual settlers, for the said lands, or any part thereof, &c.” (Act of the 3d of April 1792, § 8.) “ For the commonwealth regarded a full compliance with the conditions of settlement and residence as an indispensable part of the purchase or consideration of the lands so granted.” (Preamble to Act of 1802.) 4 Pall.—14 209 241 ** SUPREME COURT " [Sept. Attorney-General v. The Grantees. But if the true meaning of the question be, whether, under all given or supposed, circumstances of peace or war, of times of perfect tranquillity, or imminent danger, such warrants are not ipso facto void and dead in law, we are constrained to say, that our minds refuse assent to the general affirmative of the proposition. We will exemplify our ideas on this subject. Put the case, that a warrant, taken out early in 1792, calls for an island, or describes certain land, with accuracy and precision, by the course t>f waters, or other natural boundaries, distant from any military post, and that the warrantee, after evidencing the fullest intentions of making an actual settlement on the lands applied for, by all the necessary preparation of provisions, implements of husbandry, laborers, cattle, &c., cannot, with any degree of personal safety, seat himself on the lands, within two years after the date of the warrant, and by reason of the just terror of savage hostilities ? Will not the proviso in the 9th section of the act of the 3d of April 1792, excuse the temporary non-performance of an act, rendered highly dangerous, if not absolutely impracticable, by imperious circumstances, over which he had no control ? Or, suppose another warrant, depending, in point of description, on other leading warrants, which the district-surveyor, either from the state of the country, the hurry of the business of his office, or other causes, could not *2421 survey> until the two years were *nearly expired, and the depredations 1 of the Indians, should intervene, for the residue of the term, will not this also suspend the operation of the forfeiture ? Nothing can be clearer to us, than that the terms of the proviso embrace and aid such cases ; and independent of the strong expressions made use of, we should require strong proof to satisfy our minds, that the legislature could possibly mean to make a wanton sacrifice of the lives of her citizens. It is said in the books, that conditions rendered impossible by the act of God, are void. Salk. 170 ; 2 Co. 79 b; Co. Litt. 206 a; 290 b ; 1 Roll. Abr. 449, I, 50 ; 1 Fonbl. 199. But conditions precedent must be strictly performed, to make the estate vest, and though become impossible, even by the act of God, the estate will not vest; aLiter, of conditions subsequent. 12 Mod. 183 ; Co. Litt. 218 a; 2 Vern. 339 ; 1 Ch. Ca. 129, 138 ; Salk. 231 ; 1 Vern. 183; 4 Mod. 66. We desire to be understood to mean, that the “ prevention by force of arms of the enemies of the United States,” does not, in our idea, absolutely dispense with and annul the conditions of actual settlement, improvement and residence, but that it suspends the forfeiture, by protracting the limited periods. Still, the conditions must be performed cy pres, whenever the real terror arising from the enemy has subsided, and he shall honestly persist in his endeavors to make such actual settlement, improvement and residence, until the conditions are fairly and complied with. Other instances may be supposed, wherein the principles of prevention may effectually be applicable. If a person, under the pretence of being an actual settler, shall seat himself on lands, previously warranted and surveyed, within the period allowed, under a fair construction of the law, to the warrantee, for the making his settlement, withhold, che possession, and obstruct him from making his settlement, he shall derive no benefit from this unlawful act. If the party himself is the cause, wherefore the condition cannot be 210 1802] OF PENNSYLVANIA. Attorney-General v. The Grantees. 242 performed, he shall never take advantage. Co. Litt. 206 ; Doug. 691 ; 1 Roll. Abr. 454, pl. 8 ; Gobd. 76 ; 5 Vin. 246, pl. 25. We trust that we have said enough, to convey our sentiments on the first point. Our answer to the question, as proposed, is, that such warrants may or may not be valid and effectual in law against the commonwealth, according to the several times and existing facts accompanying such warrants.. The result of our opinion, founded on our best consideration of the matter is, that every case must depend on, and be governed by, its own peculiar circumstances. The second question for decision is, are the titles that have issued from the land-office, under the act aforesaid, whether by warrant or patent, good and effectual against the commonwealth, or any person claiming under the act aforesaid, in cases where *such titles have issued on the authority, ^243 and have been grounded on the certificates of two justices of the peace, *-usually called prevention-certificates, without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence, required by the said act, could not be complied with ? It was stated in evidence, on the motion for the mandamus, and proved on this trial, that the board of property, being desirous of settling a formal mode of certificate, on which patents might issue for lands north and west of the rivers Ohio and Allegheny and Conewango creek, required the opinion of Mr. Ingersoll, the then attorney-general, thereon ; and on due consideration, a form was afterwards adopted, on the 21st of December 1797, which was ordered to be published in the Pittsburgh Gazette, and patents issued, of course, on the prescribed form being complied with. The received opinion of the supreme executive magistrate, the attorneygeneral, the board of property, and of a respectable part of the bar (whose sentiments on legal questions will always have great and deserved weight), at that day, certainly was, that if a warrant-holder was prevented, by force of arms of the enemies of the United States, from making his actual settlement, within two years after the date of his warrant, and afterwards persisted in his endeavors to make such settlement, that the condition was extinguished and gone. Persisting in endeavors, was construed to mean something ; attempts, essays, &c.; but that did not imply absolute success, or accomplishment of the objects intended to be effected. By some, it was thought, that the endeavors were only to be commensurate as to the time of making the actual settlement, and were tantamount, and should avail the parties, “ in the same manner as if the actual settlements had been made and continued.” The decisions of the court in Morris's Lessee n. Neighman and others (ante, p. 209), at Pittsburgh, May 1799, tended to make the former opinion questionable ; and two of the justices of the supreme court adopted a differ ent doctrine, in their judgment between the Holland Company and Tench Coxe (ante, p. 170). In the argument in that case, it was insisted by the counsel for the plaintiffs, that the board of property, in their resolves, and the governor, by his patent, represented the commonwealth, pro hdc vice y and that interests vested under them, which could not afterwards be defeated. We cannot subscribe hereto. If the conditions of settlement, improvement and residence are indispensable at all events; they become so 211 243 SUPREME COURT [Sept. Attorney-General v. The Grantees. by an act of the different branches of the legislature. The governor who has *2441 a Qua^e^ negative in the passing of laws, *cannot dispense with their J injunctions: and it cannot be said, that this case falls within the meaning of the 9th section of the second article of the constitution. “ The governor shall have power to remit fines and forfeitures, and to grant reprieves and pardons, except in case of impeachment.” It relates merely to penalties consequent on public offences. Nor can it be pretended, that the board of property, by any act whatever of their own, can derogate from the binding force of law. But the fact is, an intention of dispensing with the law of 1792, cannot, with any degree of justice, be ascribed to the governor, or board of property for the time being. They considered themselves, in their different functions, virtually discharging their respective duties, in carrying the act into execution, according to the general received opinion of the day ; they never intended to purge a forfeiture, if it had really accrued, nor to excuse the non-performance of a condition, if it had not been complied with, agreeable to the public will expressed in a legislative contract. The rule of law is thus laid down in England. A false or partial suggestion by the grantee of the king, to the king’s prejudice, whereby he is deceived, will make the grant of the king void. Hob. 229 ; Cro. Eliz. 632 ; Yel. 48 ; 1 Co. 44 a; 51 6 y 3 Leon. 5 ; 2 Hawk. 398 ; Bl. Com. 226. But where the words are the words of the king, and it appears, that he has only mistaken the law, there he shall not be said to be so deceived to the avoidance of the grant : per Sir Samuel Eybe, Justice, Ld. Raym. 50 ; 6 Co. 55 b; 56 b, accord. But if any of the lands concerning which the question arises, became forfeited by the omission of certain acts enjoined on the warrant-holders, they do not escheat to the governor for the time being, for his benefit, nor can he be prejudiced, as governor, by any grant thereof ; they become vested in the whole body of the citizens, as the property of the commonwealth, subject to the disposition of the laws. We are decidedly of opinion, that the patents, and the prevention-certificates recited in the patents, are not conclusive evidence against this commonwealth, or any person claiming under the act of 3d of April, 1792, of the patentees having performed the conditions enjoined on them, although they have pursued the form prescribed by the land-officers. But we also think, that the circumstances of recital of such certificates will not ipso facto avoid and nullify the patent, if the actual settlement, improvement and residence, pointed out by the law, can be established by other proof. We must repeat, on this head, what we asserted on the former, that every case must be governed by its own peculiar circumstances. Until the facts really existing, as to each tract of land, are ascertained with accuracy, the legal conclusion cannot be drawn with any degree of correctness. Em facto oritur jus. 2d. Here we feel ourselves irresistibly impelled to mention a difficulty, *2451 strikes our minds forcibly. Our reflections on the *subjec -1 have led us to ask ourselves this question on our pillows: what would a wise, just and independent chancellor decree, on the last question ? Executory contracts are the peculiar objects of chancery jurisdiction, and can be specifically enforced by chancery alone. Equity forms a part of our law, says the late Chief Justice, truly. (1 Dall. 213.) If it had appeared to such a chancellor, by the pleadings or other proofs, 212 1802] OF PENNSYLVANIA. Jones v. Insurance Co. of North America. 245 that the purchase-money had been fully paid to the government, by the individual, for a tract of land, under the law of the 3d April 1792 ; that times of difficulty and danger had intervened ; that sums of money had been expended to effect an actual settlement, improvement and residence, which had not been accomplished fully ; that by means of an unintentional mistake, on the part of the state officers, in granting him his patent (the officers not led to that mistake by any species of fraud or deception on the part of the grantee) he had been led into an error, and lulled into a confidence, that the conditions of the grant had been legally complied with, and therefore, he had remitted in his endeavors therein ; would not he think, that under all these circumstances, thus combined, equity should interpose and mitigate the rigid law of forfeiture, by protracting the limited periods ? And would it not be an additional ground of equity, that the political state of the country has materially changed since 1792, by a surrender of the western posts to the government of the United States, and peace with the Indian nations, both which render an immediate settlement of the frontiers, in some measure, less necessary than heretofore ? But it is not submitted to us, to draw the line of property to these lands; they must be left to the cool and temperate decisions of others, before whom the questions of title may be agitated : we are confined to the wager, on the matters before us; and on both questions, we have given you our dispassionate sentiments, formed on due reflection, according to the best of our judgment. We are interested merely as common citizens, whose safety and happiness is involved in a due administration of the laws. We profess and feel an ardent desire, that peace and tranquillity should be preserved to the most remote inhabitants of this commonwealth. The jury found a general verdict in favor of the attorney-general, on the feigned issue ; and judgment was rendered in these words : il Whereupon, it is considered by the court here, that the said attorney-general do recover of the said grantees, his damages, costs and charges aforesaid, amounting in the whole to $200.06, and the court accordingly render judgment thereon for the plaintiff, subject to the proviso in the 9th section of the act of assembly, passed the 3d day of April 1792.” *DECEMBER TERM, 1802. [*246 Jones et al. v. Insurance Company of North America. Insurance on freight.—Partial loss.—Exception. The expenses incurred for seamen’s wages, provisions and extra-pilotage, during an embargo on a vessel, are recoverable, as a partial loss, from the underwriter on freight. • A bill of exceptions to the charge of the court, may be tendered, at any time before the jury have delivered their verdict, even when they are ready to deliver it, and are at the bar. Covenant, on a policy of insurance, dated the 30th of November 1792, upon the freight of the brig, called the Benjamin Franklin, valued at $3000, for a voyage “ at and from Bordeaux to a port in the United States,” against 213 246 SUPREME COURT [Dec. Jones v. Insurance Co. of North America. w the seas, &c., arrests, restraints, detainments of all kings, &c.,” in the usual terms of the printed policies. The premium was six per cent.; and, it was declared, that this insurance is made on the freight of the above brig, valued at the sum insured, for two-thirds thereof, &c.” On the evidence, it appeared, that the brig sailed from Bordeaux, on the 17th day of November 1792, bound for Philadelphia; but on the 20th of November, before she had reached the mouth of the Garonne, she was embargoed by the French government. The embargo continued until the 10th of January 1793 ; when the brig prosecuted her voyage ; arrived at Philadelphia, on the 5th of March ; and there, on delivery of the cargo, the assured received the amount of the freight, originally stipulated to be paid, from the respective shippers. During the embargo, however, an expense was incurred, for the seamen’s wages and provisions, and extra-pilotage, amounting to $875.13, for two-thirds of which (according to the proportion of freight insured), the plaintiffs claimed to be indemnified, by the underwriters upon the present policy : and the validity of this claim was the only matter in controversy, upon the trial of the cause. For the plaintiffs, it was contended, that the expenses incurred during the embargo, were a direct consequence of the embargo, operating as a par-hi tial loss upon the freight ; that, therefore, the sum *ought to be paid J or reimbursed by the defendants, so far as the interest of the plaintiffs extended ; that the expenses of the embargo might either be estimated by the jury, upon a consideration of the time, and the burden of the vessel; or from the actual disbursement (which the counsel for the defendants agreed and admitted), and that the premium, being paid for an insurance against the peril of an embargo, applied to a partial, as well as to a total, loss of the freight. In the course of the plaintiff’s argument, the following books were cited : Mill, on Ins. 339 ; Park, 121, 124 ; Abb. 274-5, 282-6 ; 2 Marsh. 620, 628 ; 2 T. R. 414 ; 1 Vai. Com. 168-170; 1 Emerig. 539 ; Park, 53 ; 1 T. R. 127, 129, 132 ; 4 Ibid. 208, 210, 211 ; 6 Ibid. 413, 419, 422, 423,425 ; Park, 127 ; 1 Mag. 250, 254 ; 7 T. R. 421 ; Park, 78 ; 2 East 544 ; 1 Bos. & Pul. 203 ; Doug. 268, 586 ; 1 East 228 ; 2 Burr. 696. For the defendants, it was insisted, that on this policy upon freight specifically, the expenses of seamen’s wages, Huckstering. Elizabeth Mason. ) Amicable action. The defendant appeared before me by consent, and was charged, on the oath of Barney Cart, and the affirmation of W. Johnston, clerks of the High Street market, in her presence, with being a person who follows the business of a huckster, and selling provisions, &c., at second-hand. And that the defendant did this day offer for sale, within the limits of the said market, butter, veal, pork, fowls, eggs and nuts, contrary to an ordinance in that case made and provided. I, therefore, adjudge, that the defendant pay a fine of 11. 17s. Sd., and costs 2s. Qd. To this return, a great variety of exceptions were filed ; but the argument and decision proceeded principally upon the following : (ci) The cause was argued upon the other objections in arrest of judgment, before the supreme court, in December term 1804. Seeposi, p. 816. (&) An exception that the words “of Philadelphia” had been omitted in the corporate title, was waived. There were several other cases, depending on the decision in this case. 230 1803] OF PENNSYLVANIA. 266 Black v. Wistar. 1. It is not stated, at what place the defendant followed the business of a huckster. 2. It is not stated, in what city High Street market is situated. *3. It is not stated, against which clause of the ordinance the de- r*™/; fendant had offended. *■ 4. It is not stated, that the defendant was convicted, though judgment is rendered against her. The exceptions were supported by McKean and Porter, who cited, 1 Burn. 409, 142 ; Ordin. 29th March 1798, § 16 ; Bose. 12 ; 1 Burn. 411 ; 5 State Laws, 265; 1 Burn. 413 ; 3 Mod. 159; 2 Burr. 1163; 4 Ibid. 2063; 5 T. R. 253 ; 2 Burr. 1176 ; Hullock 19, 200, 201 ; Bull. N. P. 333 ; Gilb. C. P. 225, 234-5 ; Salk. 378 ; 2 Hawk. 250 ; 1 Str. 316 ; 2 Ibid. 1120. Dickerson (tho solicitor for the corporation) endeavored to answer the exceptions, and cited 1 Str. 316 ; 10 Co. 125 ; 1 Bac. Abr. But— By the Court.—Some of the objections are insurmountable. In the first place, it is not sufficient to state the evidence ; but the magistrate must go on to declare, that the offence was committed, and the defendant thereof convicted. Here, neither the offence, nor the conviction, are to be found in the proceedings. In the next place, we have no statement where the defendant carried on the business of huckster ; and it might be, where it was no offence to do so ; or where the corporation had no jurisdiction to punish it as an offence.1 The proceedings are, therefore, manifestly erroneous, and must be set aside. Black, Plaintiff in error, v. Wistar. Waiver of error.—Amendment. Error may be waived, by consent. Where there is a variance between the writ and the count, the writ may be amended by the pr would have *been decisive one way or the other. But it J is not so answered, and his own counsel now object, that he did not answer directly to the question, and therefore, the only remedy was to except to the answer for insufficiency, and compel a better answer. This objection, I think, may be easily obviated by the following considerations. 1st. If the question had been an improper one, it might have been demurred to. By that not being done, it is confessed that the question was proper, and of course, it ought to have been answered. And it is little short of an insult on the court, now, to tell it, that the lessor of the plaintiff purposely declined answering a question fairly put to him, which he might and ought to have answered, but by his not doing it he now sets the court at defiance. 2d. If, for want of a fuller answer, no evidence was before the court, the objection might possibly be of weight. But all the other facts admitted by the answer are open to all proper inferences, as well such as arise from this wilful and insolent omission, as from any other part of the case. The object was to effect a discovery, whether certain conveyances were actually given for the sole purpose of evading the constitutional limits, as to jurisdiction, prescribed to this court. Such a design could be expected only to be disclosed by direct confession, or a number of concurring circumstances. 3d. It does not appear, that he will ever give a better answer. He may choose to go through all the processes of contempt for not answering sufficiently, as he appears already to have done, for not answering at all. He may even submit to perpetual imprisonment. Is the case never to be decided, until he thinks fit to consent, it shall be ? 4th. The jurisdiction of this court is not primd facie general, but special, (a) A man must assign a good reason for coming here. If the fact is denied, upon which he grounds his right to come here, he must prove it. The courts of the United States have jurisdiction in a case between the citizens of the same state, if the plaintiff is only a nominal plaintiff, for the use of an alien. Browne ®. Strode, 5 Cr. 303. If a citizen of one state should remove into another state, with a bond fide intention of abandoning his former place of residence, he may maintain an action in the circuit court of the state which he has abandoned; although it should appear, that his only motive was to enable him to bring a suit in a court of the United States. Lessee of Cooper ®. Galbraith, 3 W. 0. C. 554. \ 288 1797] PENNSYLVANIA DISTRICT. 332 Maxfield v. Levy. He, therefore, is the actor in the proof ; and consequently, he has no right, where the point is contested, to throw the onus probandi on the defendant. As this, undoubtedly, is the general principle, I see no reason to depart from it, on the present occasion, when the knowledge of all the circumstances of the case is fully possessed by the lessor of the plaintiff, and he is regularly called upon to disclose them. For these reasons, I am clearly of opinion, that Maxfield’s forbearing to give a fuller answer, is no reason for my not weighing the amount of the answer, which he has thought proper to give; and considering whether it sufficiently establishes the allegations of the defendants in these causes. But it is objected, that Maxfield’s answer, though evidence against him, is no evidence against Wallis, who is said to be the cestui que trust, and Maxfield a bare trustee. *Answer : Upon the face of these eject-ments, Wallis’s name nowhere appears. Maxfield, therefore, is the *• only person to be considered here. If a cestui que trust has a right to support an ejectment, but is forced, upon legal principles, to use the name of his trustee, he must take the consequences. This court, as a court of law, cannot punish the trustee for a breach of trust, though in another capacity it may. But if it had been material to have made Wallis a party, a great, if not an insuperable difficulty has been alleged in doing it. Wallis and the defendants being citizens of the same state, it is very doubtful, whether a bill in equity would have lain against Wallis, in this court, though it was merely incidental to the suit at law. But it is clear, that the objection in this case is merely frivolous, because, upon the return of the rule to show cause, an ex parte affidavit might be produced. Wallis’s affidavit, undoubtedly, might have been, as well as any others. Why has it not been ? No reason has been assigned, to show it could not be done, or that he desired, or that his counsel wished, he should do it. Nor has time been solicited for his putting in such an affidavit, though it is so seriously alleged, that it was highly important to him to have had an opportunity of answering this charge. It is alleged, that Maxfield was a trustee, and as such authorized to come into this court. A trustee I for what purpose ? There is not the least shadow of evidence, that he was a trustee for any other purpose, than that Wallis should have a color for suing in this court, in his name. The deed is not even stated to have been delivered. No fair object of the trust is specified. Wallis lived in Pennsylvania; the land lies in Pennsylvania; Maxfield lived in Delaware. What was he to do ? It appears, from his own acknowledgment, that he has done nothing hitherto, nor does he state he was to do anything. But it is said, a man is not obliged to specify any object of a trust. He may create a trust from mere whim. Admitted: But the law cannot, without absurdity, permit a man to create a trust, for the purpose of defeating a solemn provision of its own. Nothing could be more ridiculous than such a principle. When the constitution has guarded, with the utmost solicitude, against the exercise of a particular authority, so as that, under certain circumstances, one man shall not sue another in a court created under it, can such a court for a moment support a doctrine, that it shall be in the power of such a man, by any contrivance, expressly calculated to defeat this object, to render it wholly nugatory? This, indeed, would be to render the laws of our country a farce; to make the constitution a mere shadow ; 4 Dall.—19 289 333 UNITED STATES CIRCUIT COURT, [April Maxfield v. Levy. and deservedly to draw upon those entrusted with its execution, an odium which has been industriously, but I hope will ever be in vain, attempted. *0041 *But it is said, the system of fictions is not new ; and an attempt J has been gravely made, to induce this court, by flattering expressions, to add to the list of fictions in being, one of its own, in the face of the constitution we are sworn to support, and by every other sacred tie, bound to maintain inviolate. It is true, the courts of law in England have countenanced and supported some fictions. Such (for instance) as a fine and recovery, and an ejectment; and still more exceptionably, fictions to give a jurisdiction, which otherwise could not be maintained. It is sufficient to say of all these, that they originally took place, when very dark notions of law and liberty were entertained ; that they are supported now solely on the authority of long usage ; and that no court would now dare to set up a new one. No court in America ever yet thought, nor, I hope, ever will, of acquiring jurisdiction by a fiction. And the only fiction ever in general use in America (perhaps, with a few exceptions as to fines and recoveries), I believe, has been that of proceeding by ejectment, which is a mere form of action, and so modified as to do no possible injury. It cannot substantially affect any man’s right whatever. In order to encourage the court to countenance this scheme, it is said, that no injury can arise from this practice, because the decision in this court will be on the same principles, and it is to be presumed, with an equal regard to justice, in this court, as in a state court. If a serious answer to such an observation is required, it is surely evident, that we are not to assume a voluntary jurisdiction, because, we think, or any others may think, it may be exercised innocently, or even wisely. The court is not to fix the bounds of its own jurisdiction, according to its own discretion. A jurisdiction assumed without authority, would be equally an usurpation, whether exercised wisely or unwisely. But the fact assumed cannot be admitted to be true. If this court exercise a jurisdiction in such a case, it may do so, after all avenues to a state jurisdiction are for ever closed: that is alleged to be the fact in the present instance. There are also other differences, such as regard the place of trial, the venue of the jurors, and other circumstances omitted to be mentioned, because this part of the case is too plain to require any formal discussion. On this occasion, it may be material to consider whether, on the facts now apparent to the court, Maxfield has any title, either in equity or at law , because, if he has not, it is evident, the title to be contested must be Wallis’s, and not his ; and of course, the subject-matter to be decided, is a title in question between two citizens of the same state. 1st. As to equity. He has none, by his own acknowledgment; he paid no consideration ; he is to perform no duty ; he only permits his name *ooki *to be used, for the support of a fraud on the jurisdiction of the J court; a purpose which a court of equity would reject with the highest disdain. 2d. As little, in my opinion, can he support any title at law. 1st. Consider this as a mere bargain and sale. A bargain and sale is of no validity, where no money has been paid. Nothing gives a legal title under the act of Hen. VIII. (concerning uses) which was not an equitable one before that statute. At that time, no bargainee could have compelled a bargainor to 290 1797] PENNSYLVANIA DISTRICT. 335 Maxfield v. Levy. convey, who had received no money: therefore, since the statute, no use can arise on such a deed, without some money to support it. 2d. Allowing the highest efficacy to this deed, under the act of assembly. This can only mean, that what a man can lawfully grant, by any form of conveyance, shall be sufficiently granted in this form. Of course, if under any other form of conveyance, owing to technical difficulties, such a purpose could succeed, without redress, a deed, professedly a bargain and sale, is not to have its influence extended, merely that an illegal purpose should take effect, under color of form. The intent of the act certainly was, that the want of form should not defeat the intention of an honest, but unskilful conveyance ; but surely not to smooth the path of injustice, by converting a rightful estate into a wrongful one. 3d. But admitting it to be any form of conveyance you please, then I say, that a court of law will not, any more than court of equity, support a deed formally good, but substantially fraudulent. And whether the fraud be of a moral nature, for the purpose of doing a wilful injustice, or the act be, as the lawyers term it, in fraudem legis (that is, to evade some law), the law will equally interpose, to prevent its own principles from being made mere instruments to defeat its own purposes. There is no act in law, within my recollection, which fraud will not vitiate. It will vitiate a feoffment, which is a very strict conveyance, requiring no consideration, and passes by an actual livery. It will vitiate a fine, though a solemn transaction in a court of justice, and peculiarly favored. It will even deprive a party of the benefit of a judgment deliberately given. Conveyances to defeat creditors (however formally agreeable to law) are held absolutely void, at least as against them. So also, in the common case of usury, for which so many contrivances have been devised. No contrivance, no color, no form whatever, can protect any transaction, which really appears to have been usurious, from being declared so. The application of these principles is obvious. If (as I observed before), the deed in question is to be considered as a mere bargain and sale, it is absolutely void for want of a legal consideration (which must be money alone) to support *it. If it is to be considered as any other kind of r*qofi conveyance, it having no consideration whatever but an illegal one *■ (that of defeating the constitution and laws of the United States in a most essential point), it is at least void as to that purpose, and, therefore, does not authorize Maxfield to come into this court. I, therefore, conclude, without difficulty, that Maxfield has neither a legal nor an equitable title to authorize him to come into this court. The only remaining consideration is, as to the remedy, which, from the first, was the only difficulty I found. I will venture to lay it down as an unquestionable principle, that no grievance can arise in the law, but some remedy may be applied to it. The present grievance, therefore (which, if unredressed, will, in any case like the present, enable two persons, at their pleasure, to do injustice to a third, and force this court to exercise a jurisdiction never delegated to it), must admit of some remedy. Only three have been suggested, in the present stage of the proceeding. 1st. The method now under consideration. 2d. A plea to the jurisdiction. 3d. An injunction in equity. I will consider the last two first; for if they are removed out of the way (as I think they must be), it will facilitate our consideration of the first. 291 386 * UNITED1 STATES CIRCUIT COURT,' [April Maxfield v. Levy. As to a plea to the jurisdiction. This can be of no avail, unless not only the fact, at the proper time of pleading, be known to the defendant, but that he has disinterested proof of it. This, in a thousand instances, would be impossible ; and in no instance, Can be expected. To insist on this, therefore, as the only method, would leave the constitution and the law, in almost every instance, open to certain evasion. It, consequently, cannot be admitted, that this is the only method of redress. With regard to a bill in equity. I will not say, equity ought not to interpose a remedy in any case. But it seems most proper, that a court of law should support its own jurisdiction, on its own principles, and if proof can be obtained, I conceive it is necessarily incident to every court, to take care that its jurisdiction be not encroached upon, or, in other words, that the court be not made, either voluntarily or involuntarily (if it can prevent it), an usurper of jurisdiction not belonging to it. In this case, the aid of equity may be useful (as it has been on the present occasion), in compelling a discovery; but there, I think, its interference ought to stop, unless the power of the law-court over the action has entirely ceased; as, for instance, after a judgment, in which case (but in which, perhaps, alone), equity might properly grant an injunction, to prevent a party availing himself of his own fraud. * *The only remaining remedy suggested (or which occurs to me), J in the present stage of the proceeding, is that now under consideration ; and of course, this must be adopted, if an interference by the court in the present stage of the cause is proper. It is, however, objected, that the court ought not to interfere, at present, but permit the case to go before the jury, who may find for the defendants, if they believe the facts suggested, and apply the law accordingly. If this case had, indeed, gone before the jury, I should have had no difficulty in telling them, that admitting the truth of the facts as stated, the lessor of the plaintiff had, in my opinion, no title ; and if the jury had found accordingly, redress (though late) could be obtained. But, at present, I do not think myself at liberty to submit the case to the jury, for the following reasons. 1. The court is the proper guardian of its own jurisdiction. It is alone responsible for itj and must, therefore, take care that it neither abandons a jurisdiction rightfully belonging to it, nor usurps that which does not. 2. Admitting that a plea to the jurisdiction is not the only remedy, for the reasons I have given, upon complaint made of any fraud on the jurisdiction having been practised, if the complaint is supported on good grounds, it is just, that an immediate inquiry should be made into it, in order that if any injury to a party has been hitherto unavoidably sustained, by any such fraud, it may be put a stop to, as soon as possible. To compel a party, in such a case, to stay in court, until a jury shall be summoned and convened, to try a general issue, would be a voluntary exercise of jurisdiction, after the court entertained reason to doubt, at least, whether they had any. 3. To swear a jury is an exercise of jurisdiction. With what propriety can I order that, after being fully convinced from evidence, admitted to be competent, that the court hath no jurisdiction at all ? 4. Suppose, the jury in this case should find for the plaintiff, when the court was thoroughly convinced it had no jurisdiction of the cause ? Can the court give judgment for the plaintiff in such a case ? Surely not. If, &292, ] 797] PENNSYLVANIA DISTRICT. 337 Maxfield v. Levy. therefore, a verdict to that effect, could produce no good, why should a verdict he required of them ? Because this would not be an ordinary case concerning a new trial; in which case, after two or three verdicts the same way, a court might be compelled to stop and proceed no further. But if there were a hundred verdicts in a case, in their opinion, not within their jurisdiction, they could not give judgment, without voluntarily usurping a power not belonging to them. 5. In this case, there is no occasion for a jury to try the facts, because the facts are not denied, and the court surely will *not call a jury to decide a question of law, and a question which, as I have just *• observed, they could not decide finally. Maxfield’s allegations in this case, are either a direct confession, or as to some points (if the expression is proper) a nil dicit. In neither case, is a jury wanting : a complete denial can alone entitle a party to have facts tried by a jury. There is no denial in this case, but of the merits, upon which a jury can be sworn ; which certainly would be premature when facts had already been confessed sufficient to oust the jurisdiction. Had he positively denied, indeed, the allegations of the bill in equity, the jury must have been sworn ; for as a judge, I certainly could not, in any shape, determine on an issue of fact. But as he has not thought proper to deny them, but, in my opinion, substantially confessed everything to show that the court had no jurisdiction of the cause ; I consider myself bound to order these ejectments to be dismissed, and do accordingly order them to be dismissed, with costs, (a) Here, one of the counsel interfered, and asked the judge whether he would order costs, in a case where he declared the court had no jurisdiction. The Judge answered.—That that circumstance did not occur to him; he acknowledged he had committed a mistake in that part of the order. But if it was in his power, he would order double costs. (5) (a) Mr. William Tilghman, one of the counsel for the defendants, quoted a case in Savill’s Reports, p. 12, which Judge Iredell thought much in point, and meant to have declared so, in delivering his opinion, but inadvertently omitted it. See Worlay v. Harrison, Dyer 249 ; 2 Inst. 215 ; 21 Viner 535, 536, tit. Vacat. (5) In the case of Browne’s Lessee v. Arbunkle, in the circuit court, at October term 1806 (1W. C. 0. 484), it appeared, upon bill and answer on the equity side of the court, that the lessor of the plaintiff was a citizen of the state of New York, and the defendant was a citizen of Pennsylvania; that the former was a member of the population company, who had purchased extensive tracts of land, on the north-western boundary of Pennsylvania; that the land so purchased was held by trustees (all citizens of Pennsylvania), for the use of the company ; that the trustees had conveyed to the lessor of the plaintiff his portion of the land (including the premises mentioned in the declaration), in severalty ; and that the present ejectment was founded upon that conveyance. The defendant, upon these facts, and upon the authority of Maxwell’s Lessee v. Levy, and Hurst ®. Hurst, moved to strike from the record this ejectment, and others in the same predicament. But the motion was overruled by the court: and this distinction taken: Washington, Justice.—In the cases cited, the deeds were executed, with a collusive intention, to give a jurisdiction to the court, which the court could not possess without them. The objection proceeded on two grounds: 1st. On the equity of the statute provision, which declares, that a suit shall not be maintained in a federal court, by the assignee of a promissory note, or other chose in action (with the single exception of foreign bills of exchange), unless it could have been brought there, by the original 293 ♦340 UNITED STATES CIRCUIT COURT, [April ♦APRIL TERM, 1800. Present—Chase, Justice, and Petebs, District Judge., O’Haea v. Hall. Parol evidence. Parol evidence is admissible to explain, but not to alter, a written contract. In an action by the assignee of a bond, against the assignor, upon a written assignment, in genera’ terms, parol testimony is not admissible, to show that the defendant had expressly guarantied the payment. Case. This was an action brought by the assignee of a bond, against the assignor, upon a written assignment, in general terms. On the trial, Ingersoll, for the plaintiff, offered parol testimony to show that the defendant had expressly guarantied the payment of the bond. JR Tilghman objected, that as the contract of the parties was in writing, no parol testimony could be admitted, on a trial at law, to vary its expressions and import. Ingersoll replied, that wherever there is an oral misrepresentation, at the time of a sale or transfer, even though the principal bargain is reduced to writing, the misrepresentation may be proved. A court of equity would, in such case, grant relief; and even the courts of law are now accustomed to regard actions on the case, like the present, as bills in equity. (Moses n. Macferlan, 2 Burr. 1005 ; 1 Dall. 428.) Chase, Justice.—You may explain, but you cannot alter, a written contract, by parol testimony. A case of explanation implies uncertainty, ambiguity and doubt, upon the face of the writing. But the proposition now, is a plain case of alteration: that is, an offer to prove by witnesses, that the assignor promised something, beyond the plain words and meaning of his written contract. Such evidence is inadmissible; and has been so adjudged by the supreme court, in Clarke v. Russell, 3 Dall. 415. As to the authority of Moses v. Macferlan, it has always been suspected, and has * . lately been overruled, on the principle, *that the previous decision, J there brought into question, was pronounced by a competent court. I grant, that chancery will not confine itself to the strict rule, in cases of fraud and of trust. But we are sitting as judges at common law; and I can perceive no reason to depart from it. Peters, Justice.—If we were sitting as judges in a state court, I should be inclined to admit the testimony, in order to attain the real justice of the cause ; as there is no court of equity in Pennsylvania. But there is no such defect in the federal jurisdiction ; and therefore, when the party comes to the common-law side of the court, he must be content with the strict common-law rule of evidence. party. And 2d. On the manifest attempt, by a fraud, to create jurisdiction. But in the case now under consideration, the lessor of the plaintiff would have had a right, as a citizen of New York, to apply to the equity side of the court, to compel the trustees to convey his share of the trust-estate to him: and if the trustees have only voluntarily made a conveyance, which the court would have decreed, surely we cannot call it a fraudulent deed, or refuse to take cognisance of a suit founded upon it, between a citizen of New York and a citizen of Pennsylvania. 294 1800] PENNSYLVANIA DISTRICT. 341 United States j. Coopee. Privilege. A member of congress is not excempt from the service nor obligations of a tubpoena, in a criminal case. The defendant, being indicted for a libel on the President, applied to the court, for a letter to be addressed by them, to several members of congress (congress being in session) requesting their attendance as witnesses on his behalf.1 In support of the application, a variety of similar cases, arising under the government of Pennsylvania, were referred to. Chase, Justice.—The constitution gives to every man charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service or the obligations of a subpoena, in such cases. I will not sign any letter of the kind proposed. If, upon service of a subpoena, the members of congress do not attend, a different question may arise ; and it will then be time enough to decide, whether an attachment ought, or ought not, to issue. It is not a necessary consequence of non-attendance, after the service of a subpoena, that an attachment shall issue. A satisfactory reason may appear to the court, to justify or excuse it. Peters, Justice.—I know the practice in Pennsylvania to be as it has been stated ; for I have received such letters from the supreme court, while I was speaker of the house of representatives, requesting that members might be permitted to attend as witnesses. In the present case, I should have no objection to acquiesce in the defendant’s application, with the concurrence of the presiding judge. Motion refused. Murgatroyd MoLuee. [*342 Illegal contract. Replevin cannot be maintained for a vessel, by registered owner, who has received the full value of it from another, for whom he is mere trustee, in fraud of the laws of the United States. Replevin, for the ship Mount Vernon. The defendant claimed property, under a capture and condemnation as prize, in the French Court of Prizes, established at the city of St. Domingo, in the island of St. Domingo, under the circumstances stated in the reports of the trials, relative to the same ship. Murgatroyd n. Crawford, 3 Dall. 491 ; Puncanson v. McLure, ante, p. 308. After hearing the evidence— Chase, Justice, declared, that the whole transaction between Murgatroyd and Duncanson was a mere cover to evade the laws of the United States ; that the former was a mere trustee for the latter; and that having been paid the full price for the ship, he had no property, on which the replevin could be maintained. The plaintiff suffered a nonsuit. 1 See Cooper’s case, in Wharton’s State Trials 659. 295 342 UNITED STATES CIRCUIT COURT, [April Evans, qui tam, dec., v. Bollen. Jurisdiction.—Penal action. The circuit court cannot take original cognisance of a suit for a penalty incurred by an offence against the laws of the United States: if the offence was committed within a state, it must be tried in such state.* This was qui tam action, in which the following declaration was filed: October Session, 1797. In the Circuit Court of the United States for the Pennsylvania District, of the Middle Circuit. District of Pennsylvania, ss. George Bollen, late of the district of Pennsylvania, yeoman, was summoned to answer to the United States and to John Evans, who sues in this behalf, as well for the said United States as for himself, of a plea that he rendered to the raid United States, and to the said John, who sues as aforesaid, the sum of $2000, which to them he owes, and from them unjustly detains : and whereupon, the said John, who sues in this behalf, as well for the said United States, as for himself, by Joseph Thomas, his attorney, saith, that the said George, on the first day of April, in the year of our Lord 1797, at the port of New York, to wit, at the district aforesaid, was aiding and abetting, in preparing and sending away from a port within the said United States, to wit, from the port of New York, a certain vessel called the Betsey, intending that the same should be employed for the purpose of procuring from a foreign country, to wit, from the coast of Africa, the inhabitants of such foreign country, to be transported to a foreign country, to wit, to the island of Saint Croix, to be disposed of as slaves, against the form of the *3431 a^atute in suc^ case ma^e and provided ; by means whereof, *and by J force of the statute in such case made and provided, an action hath accrued to the said John, who sues in this behalf, as well for the said United Stater», as for himself, to have and demand of and from the said George, the said pum of $2000 : yet the said George (although often requested) hath not paid tiie said $2000, or any part thereof, to the said John, who in this behalf sues tor the United States as well as for himself, but the same to him to pay hath hitherto wholly refused, and still doth refuse, to the damage of the said John, who sues as aforesaid, $500. And thereof he brings suit, &c. Pledges, Do* ° ’ ( Richard Roe. Joseph Thomas, attorney for plaintiff. The action was founded on the act of congress, “ to prohibit the carrying ca the slave trade, from the United States to any foreign place or country” (1 U. S. Stat. 347), of which the following were the material sections, in the discussion: Sect. 1. “ That no citizen or citizens of the United States, or foreigner, nr any other person coming into, or residing within the same, shall, for him-self or any other person whatsoever, either as master, factor or owner, build, fit, equip, load or otherwise prepare any ship or vessel, within any port or 1 The Cassius, 2 Dall. 866; Hall v. Warren, 2 McLean 882. 296 1800] PENNSYLVANIA DISTRICT. 343 Evans v. Bollen. place of the said United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves, to any foreign country ; or for the purpose of procuring, from any foreign kingdom, place or country, the inhabitants of such kingdom, place or country, to be transported to any foreign country, port or place whatever, to be sold or disposed of as slaves : and if any ship or vessel shall be so fitted out as aforesaid, for the said purposes, or shall be caused to sail, so as aforesaid, every such ship or vessel, her tackle, furniture, apparel and other appurtenances shall be forfeited to the United States ; and shall be liable to be seized, prosecuted and condemned in any of the circuit courts or district court for the district, where the said ship or vessel may be found and seized. Sect. 2. “ That all and every person, so building, fitting out, equipping, loading or otherwise preparing or sending away, any ship or vessel, knowing, or intending, that the same shall be employed in such trade or business, contrary to the true intent and meaning of this act, or any ways aiding or abetting therein, shall severally forfeit and pay the sum of $2000; one moiety thereof to the use of the United States, and the other moiety thereof to the use of him or her who shall sue for and prosecute the same.” *The facts were proved, as stated in the declaration, but the de-fendants counsel made two objections to the jurisdiction of the court: *• 1st. That this was a suit under the second section, and the circuit court could not take original cognisance of a case of penalty or forfeiture, as the judicial act expressly declared, that the district court should have “ exclusive original cognisance of all suits for forfeitures and penalties incurred under the laws of the United States.” (1 U. S. Stat. 76, § 9.) 2d. That the offence was committed in the state of New York; and ought to be tried there, upon the principles of the common law, adopted by the constitution of the United States, and various acts of congress. Const. Art. III., § 2 ; Amend. Const. Art. VIII., IX.; 4 Black. Com. 350 ; 3 Ibid. 359, 360 ; 2 Dall. 335. It was agreed, that a verdict should be given for the plaintiff, subject to the opinion of the court on these points ; and after argument, by E Tilghman, for the plaintiff, and Levy, for the defendant— The Court declared, that they had no jurisdiction of the cause; and directed a non-pros. to be entered. 297 ♦345 UNITED STATES CIRCUIT COURT, [Oct. ♦OCTOBER TERM, 1800. Present—Paterson, Justice, and Peters, District Judge. Hollingsworth v. Fry. Construction.—Time in equity. The great rule of interpretation, with respect to deeds and contracts, is, to put such a construction upon them, as will effectuate the intention of the parties, if such intent be consistent with the principles of law.1 Equity will not interfere in favor of one who has been guilty of gross laches ; a complainant must use legal diligence in the enforcement of his rights. When the time of payment of the consideration-money mentioned in an agreement is made a substantial and not a mere formal circumstance, it enters into the essence of the contract; and a failure to pay at the day, will not be relieved against in equity.2 In Equity. The bill, after setting forth a variety of transactions between the parties, relative to a tract of land, mills and mill-race, in Dauphin county, stated, that on the trial of a writ of partition for the premises, they consented to withdraw a juror, and entered into the following agreement, dated the 19th of November 1790 : “It is mutually agreed, that judgment shall be entered for the defendant, on the day in bank, on the 3d of January next, unless the said plaintiff, or Robert Ralston, his assignee, shall, previous thereto, by such good and unexceptionable sureties, in such sum, and in such manner, as shall be approved of by the honorable judges of this court, engage for, and secure, the payment of one moiety of all moneys which the defendant hath advanced or expended, or shall appear to be reasonably entitled to, for or by reason of his improvement of the lands in question, or for any matter relative thereto, or of any other lands held in common or jointly between the-said parties, within six months from the said 3d day of January next. Butin case such unexceptionable security shall be given, and a question shall arise as to the quantum of the moneys to which the defendant shall be entitled, then John Kean, Joshua Elder and John Carson, gentlemen, or any two of them, shall determine the said sum, on full hearing of the said parties, their witnesses and proofs. And in case of a full conformity thereto, *and the money being *3461 paid and discharged as aforesaid, within the said period of six months, and not otherwise, that then judgment shall be entered in this action, not only for the lands in the declaration mentioned, but of all lands and mills held jointly or in common between them the said parties, by virtue of any article between them, or between them and John Fisher, made. But if the moneys so due shall not be paid and discharged, within the said period, the defendant shall hold the said lands free and discharged from the claims of the said plaintiff, and all persons claiming under him ; and judgment shall in such case be entered for him in this action.” It also appeared, from the pleadings and exhibits, that the bond re- 1 Bradley v. Steam-packet Co. 13 Pet. 89. 2 Garnett v. Macon, 2 Brock. 185; Stinson v. Dousman, 20 How. 461; Longworth v. Taylor, 1 McLean 895; s. o., 14 Pet, 172; Mason v. Wallace, 8 McLean 148 ; Lester v. McDowell, 18 Penn. St. 91 ; Patchen v. Lumborn, 81 Id. 814;. Chew v. Phillippi, 82 Id. 206; Waters v. Waters, Id. 807. 298 1800] PENNSYLVANIA DISTRICT. 346 Hollingsworth v. Fry. quired by the agreement, was duly executed on the part of the plaintiff ; that the referees undertook the business of the reference; and that on the 13th of April 1791, the following report was filed : “ We, the referees, &c., report, that after hearing the parties, their allegations and witnesses, and investigating their accounts and vouchers, we are of opinion, that George Fry is reasonably entitled to the sum of 3646?. 6s. V^d. specie ; that being the one moiety or half part of his expenditures on the lands, mills and their appurtenances in question, after giving John Hollingsworth credit for the money by him expended on the same lands.” It also appeared, that the plaintiff filed a number of exceptions, which the supreme court, after argument, overruled, on the 2d of July 1791, and gave judgment on the report ; and that on the 26th of September 1796, the complainant sent his son, to tender to the defendant the amount of the report in his favor ; which the defendant refused to accept. Upon these general premises, the bill proceeded to complain, that the defendant had appeared in the supreme court, by his counsel, on the 2d of July 1791, alleging the exceptions to the report to be untrue, whereas, the complainant averred that they were true ; that although notice had been given to produce books and accounts, none were produced on the hearing in court ; that the conduct of the referees was improper in various particulars ; that the books, accounts and statements laid by the defendant before the referees, were untrue and fraudulent; that the defendant suppressed several material documents which he alone possessed ; and that the value of a moiety of the property in dispute was at least 10,000?. The bill concluded with a prayer for a perpetual injunction against all proceedings on the judgment; for a discovery and account; for a partition of the premises ; and for general relief. *To this bill, the defendant filed a plea and answer : 1st. Plea in r*o4H bar, a former bill in equity, for the same cause, filed by the com-plainant, on the 24th of April 1792 ; demurrer to the bill, and joinder in demurrer ; and a decree, in April term 1796, pronouncing the demurrer to be sufficient, and dismissing the bill; which decree remained unreversed and in full force. 2d. Plea in bar, the judgment of the supreme court of Pennsylvania (a competent tribunal), upon the agreement, reference and report, which judgment remained still in force; with an averment that the complainant did not, within six months after making or filing the report, nor after the exceptions were overruled (which exceptions contained all the matter alleged in the bill) and the judgment rendered, pay or offer to pay to the defendant, the said sum of 3646?. 6s. ^d. or any part thereof. 3d. Answer, That the judgment was fairly obtained ; that the defendant did not submit to the referees any books, accounts or statements that were untrue or fraudulent, nor suppress any material documents ; that on the 26th of September 1796, the complainant’s son came to him with a bank-bill; but never before that time; and that the defendant had been exposed to all intermediate expenses and casualties, &c. A general replication was filed ; and after argument, the following opinion was delivered, Judge Peters declining to take a part in the decision : Paterson, Justice.—The great rule of interpretation with respect to deeds and contracts, is, td put such a construction upon them, as will effec- 299 347 UNITED STATES CIRCUIT COURT, [Oct. Hollingsworth v. Fry. tuate the intention of the parties, if such intention be consistent with the principles of law. In the present case, there is no difficulty in coming at the intention, as it is clearly and forcibly expressed in the agreement, and is capable of receiving one construction only. The time of payment is made a substantial, and not a mere formal, circumstance ; it enters into the essence of the contract; and therefore, must be observed, (a) The court cannot decree against the legal and express stipulation of the parties themselves. The situation of the parties, the nature of the property, and the speculative spirit of the project, were powerful inducements for drawing up the agreement, in the plainest and strongest terms, so as to leave no doubt as to the intention, and to render the time of performance a cardinal point. Again, if the agreement would admit of another construction, the complainant, under the circumstances of the case, comes too late to avail himself of it. The door of equity cannot remain open for ever. The complainant did not make a tender of the money, until a lapse of five years after the termination of the time limited by the contract. So far was he from using legal diligence, that he has been guilty of gross delay. (6) In cases of the present kind, equity will not suffer a party to lie by, until the event of * the *experiment shall enable him to make his election, with certainty J of profit one way, and without loss any way. This mode of procedure is unfair, contrary to natural justice, and in exclusion of mutuality. There is a strange mixture of legal and equitable powers in the courts of law of this state. This arises from the want of a distinct forum, to exercise chancery jurisdiction; and therefore, the common-law courts equitize as far as possible. Whether, if relief be proper, the supreme court of this state could have extended it to the complainant, it is unnecessary to determine. Thus (a) Although it has been intimated in some cases, that time could not he made of the essence of contract, even hy a positive stipulation of the parties, there has been no decision to that effect. In other and later cases, it has been admitted, that parties may make time of the essence of the agreement, and whether they have done so must depend on all the circumstances. McCrelish ®. Churchman, 4 Rawle. 26. The principle seems to be firmly established, that time may be a circumstance of decisive importance, but that it may be waived by the conduct of either party. It is incumbent on a plaintiff, whether at law or in equity, to show that he has used due diligence in the performance of his part of the contract, or that if he has not, his negligence arose from some just cause, or has been acquiesced in; but it is not necessary for the defendant to show any particular inconvenience; it is sufficient, if he has not acquiesced in the negligence of the plaintiff. Ibid. In a deed conveying land, and reserving a rent-charge, the grantor covenanted to release and discharge the rent, if the grantee should, within seven years, pay a certain sum; it was held, that after a lapse of eighteen years from the time prescribed, he could not call upon the grantor to perform his covenant In re Henry Shoemaker, 1 Rawle 89. So, where a judgment in ejectment was entered by agreement of the parties, to be released on the payment of a certain sum, on or before a certain day, time was considered the essence of the contract, and the money not having been paid, on or before the day, the judgment became absolute and indefeasible. Gable®. Hain, IP. & W. 264. See also Jordan ®. Cooper, 3 S. & R. 564; Roberts ®. Beatty, 2 P. & W. 63 ; Shaw ®. Turnpike Co., Id. 454. But see W/son’s Adm’rs ®. Lewis, 2 Yeates 467; Decamp ®. Feay, 5 S. & R. 323. (5) Time, generally speaking, is not essential in equity; but considerable delay, without sufficient reason to account for it, will be considered satisfactory evidence of an abandonment Bellas ®. Hays, 5 S. & R. 448. 800 1800] PENNSYLVANIA DISTRICT. 348 Thurston v. Koch. much, however, might and ought to have been done, on the part of the complainant ; he ought, when notice was given for him to show cause why judgment should not be entered, to have laid the equity of the case before the judges of that court, who, if they thought proper, might have deferred the entering of judgment, or ordered it to be entered on terms, to wit, to be vacated on payment of the awarded sum, by a limited period. But the complainant, although he had previous notice, did not avail himself of an appeal to the discretion of the court; but suffered judgment to pass against him, without making any objection. There being no equity in the complainant’s case, his bill must be dismissed, with costs. Thurston v. Koch. Double insurance. In cases of double insurance, the assured may, at his election, sue either set of underwriters, and recover a full indemnity ;* and if there be a recovery against one, the others are bound to contribute ratably, in proportion to the amount insured.2 This cause came before the court on the following case stated by the , counsel, Condy, for the plaintiff, and Ingersoll, for the defendant. “ On the 13th of October 1796, William I. Vredenburgh, of the city of New York, merchant, caused himself to be insured, at the city of New York, in a certain policy of insurance, which was subscribed by the plaintiff, in the sum of Si4,500, upon any kind of goods and merchandise, laden or to be laden on board the brigantine Nancy, Captain King, master, lost or not lost, at and from any port and ports in the West Indies, and at and from thence to New York, and there safely landed, beginning the adventure upon the said goods and merchandises, from the lading thereof on board the said vessel, at the W est Indies. “ On the 17th of October 1796, the said William I. Vredenburgh, by Jacob Sperry & Co., his agents, caused himself to be insured, at the city of Philadelphia, in a certain other policy of insurance, which was subscribed by the defendant, in the sum of $1300, with other underwriters, in the whole amounting to $12,000, upon all kinds of lawful goods and merchandises, lost or not lost, laden or to be laden on *board the said brigan-tine Nancy, at and from Cape Nichola Mole, to any ports and places in the West Indies, to trade, at and from either of them, to New York, beginning the adventure from and immediately following the loading thereof on board the said brigantine, at Cape Nichola Mole, and so to continue, until safely landed at any ports and places in the West Indies, and at 1 Potter v. Marine Ins. Co., 2 Mason 475; Craig v. Murgatroyd, 4 Yeates 161. This has since been remedied by the introduction into policies of the clause respecting prior insurances. Gibson, J., in Peters v. Delaware Ins. Co., 5 S. & R. 481. The rule is the same in cases of fire insurance. Lucas v. Jefferson Ins. Co., 6 Cow. 635. 2 In this, the court adopted the English rule, contrary to that adopted in this country, that the other insurers should contribute ratably, and not according to priority of contract. Stacey v. Franklin Fire Ins. Co., 2 W. & S. 542-3, Rogers, J. But to constitute a case of double insurance, there must be the same risk, and for the same person. Warder v. Horton, 4 Binn 529; Columbian Ins. Co. v. Lynch, 11 Johns, 233. And see Peters v. Delaware Ins. Co., 5 S. & R. 473; Wells v. Philadelphia Ins. Co., 9 Id. 103; Sloat v. Royal Ins. Co., 49 Penn. St. 14. 349 UNITED STATES CIRCUIT COURT, [Oct Thurston v. Koch. New York aforesaid. The premium demanded upon this policy, was ten per cent., and was duly paid by the said Jacob Sperry & Co., on behalf of the said William I. Vredenburgh, to the defendant and the other underwriters upon this policy. “ On the 20th of October 1796, the said William I. Vredenburgh caused himself to be insured, at the city of New York, in a certain other policy of insurance, which was subscribed by the New York Insurance Company, for the sum of $2200, upon all kinds of lawful goods and merchandises, lost or not lost, laden or to be laden on board the said brigantine Nancy, at and from any port or ports in the West Indies, to New York, beginning the adventure from the loading thereof on board the said brigantine, at any port or ports in the West Indies, and so to continue, until safely landed at New York, &c. “ On the 12th day of September 1796, the said brigantine Nancy, with the said goods and merchandises so laden, on board, and insured and covered by the said policies as aforesaid, sailed from Cape Nichola Mole, in the West Indies, for St. Marks, likewise in the West Indies, and in the prosecution of the said voyage, from Cape Nichola Mole to St. Marks aforesaid, with her cargo, including the said goods and merchandises, so insured as aforesaid, was captured by a French privateer, and condemned; by which capture, the said goods and merchandises were wholly lost to the-insured. Upon this, suits were brought into the supreme court of the state of New York, against the plaintiff, upon the policy by him subscribed, and against the New York Insurance Company, on the policy by them subscribed ; in which suits, the insured, the said William I. Vredenburgh, recovered as for a total loss. “ The amount paid by the plaintiff (after the usual deductions) for the loss, was $12,740, with $1783.60 interest, and $418.32 costs. He has likewise paid to the said assured, $1083.60, being the amount of the premium upon the policy subscribed by the defendants (after the deductions allowed in the case of a returned premium), as a consideration for the assignment of the said policy to the plaintiff. The New York Insurance Company have paid to the assured $2156, being the amount of their policy (after the usual deduction in case of loss), with $301.84 interest. The several sums so paid have completely satisfied the loss, with all the interest and costs. $ 1 *“ Question for the opinion of the court. Is the defendant (one J of the underwriters, on the Philadelphia policy, of the 17th of October 1796) liable to make any, and if any, what contribution to the plaintiff, upon the loss so paid as aforesaid by him ? Or, in other words, is the defendant liable to pay more than the amount of the loss, beyond the sum previously insured ? If the court shall be of opinion in the affirmative, then judgment shall be entered for the plaintiff, in such sum as, upon the principles established by the court, shall be found due. But if the court shall be of opinion in the negative, then judgment shall be entered for the defendant.” After argument, the opinion of the court was delivered by the presiding judge, in the following terms : Patersox, Just' ie.—The case before the court is that of a double insurance ; and the question is, whether the insurers shall contribute ratably, or 302 1800] PENNSYLVANIA DISTRICT. 350 Thurston ¥. Koch. shall pay according to priority of contract, until the insured be satisfied to the amount of his loss. The law on this subject is different in different nations of Europe, owing to the diversity of local ordinances, which have been made to regulate commercial transactions. By the ordinance of one country, the contract is declared to be void, and a forfeiture superadded ; whereas, by the ordinance of other countries, the contract is merely void, without any forfeiture. By the ordinance of Spain, if a policy be signed, on the same day, by several persons, the first signer becomes first responsible, and so on, until the insured receive full satisfaction to the value of his loss ; the posterior insurers being liable only for the deficiency, and that, too, according to the order of priority. But in such case, by the ordinance of France, the several insurers, on the same day, shall contribute ratably to make up the loss ; whereas, by the same ordinance, if the policies bear date on different days, the rate of contribution is rejected, and that of priority established; or, in other words, if the first policy absorb the loss, or amount to the value of the goods insured, the posterior insurers are not liable, but shall withdraw their insurances, after retaining a certain per-centage. The solvency of the first insurer to the full value being assumed, the ordinance is predicated on the principle, that there remains no property to be insured, and of course, no risk to be run. But suppose, the solvency of the first insurer should become doubtful, what course is to be pursued ? As this is a risk, it ought to be provided against; and accordingly, we find, that some of these ordinances have declared, that such insurer’s solvability may be insured. It is obvious, that this is a point of great delicacy ; for by questioning the solvency of a merchant, you wound his credit, and perhaps, cast him into a state of bankruptcy. Most, if not all, of these ordinances, are of ancient date, and were calculated for the then existing state of commerce in *the sev-eral countries which formed them. L It is, however, evident, that the law-merchant varies in different nations, and even in the same nation, at different times. The course of trade, local circumstance, commercial interests and national policy, induce to some variation of the rule. The law in this particular, as it was understood and practised in England, prior to, and at the commencement of, our revolution, was different from the rule which prevailed in France, Spain and other countries, under their local ordinances. A double insurance is, where the same man is to receive two sums instead of one, or the same sum twice over, for the same loss, by reason of his having made two insurances upon the same ship or goods. In such case, the risk must be the same. This kind of insurance is agreeable to the practice and law of England, and is considered as being founded in utility, convenience and policy. In the case of Godin v. London Assurance Company, in February 1758, Lord Mansfield, in delivering the opinion of the court, expressed himself as follows : “As between them, and upon the foot of commutative justice merely, there is no color why the insurers should not pay the insured the whole : for they have received a premium for the whole risk. Before the introduction of wagering policies, it was, upon principles if convenience, very wisely established, ‘ that a man should not recover more than he had lost.’ Insurance was considered as an indemnity only, in case of a loss : and therefore, 303 351 UNITED STATES CIRCUIT COURT, [Oct. Thurston v. Koch. the satisfaction ought not to exceed the loss? This rule was calculated to prevent fraud ; lest the temptation of gain should occasion unfair and wilful losses. a If the insured is to receive but one satisfaction, natural justice says, that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured. No particular cases are to be found, upon this head; or, at least, none have been cited by the counsel on either side. “ Where a man makes a double insurance for the same thing, in such a manner that he can clearly recover against several insurers, in distinct policies a double satisfaction, the law certainly says, ‘that he ought not to recover doubly for the same loss, but be content with one single satisfaction for it? And if the same man, really, and for his own proper account, insures the same goods doubly, though both insurances be not made in his own name, but one or both of them, in the name of another person, yet that is just the same thing ; for the same person is to have the benefit of both policies. And if the whole should be recovered from one, he ought to stand in the place of the insured, to receive contribution from the other, who was equally liable to pay the whole.” (1 Burr. 492.) * *In case v* at sittings after term, in 1763, 2 ' W. Bl. 416, the same doctrine is laid down, agreed to, and confirmed. For, “ it was ruled by Lord Mansfield, Chief Justice, and agreed to be the course of practice, that upon a double insurance, though the insured is not entitled to two satisfactions ; yet, upon the first action, he may recover the whole sum insured, and may leave the defendant therein to recover a ratable satisfaction from the insurers.” These cases have never been contradicted, and must be decisive on the subject. The law, as stated in the above adjudications, is recognised by Park and Millar, two recent and respectable writers on marine insurances. Such being the law of England, as to double insurances, before and at the commencement of our revolution, it was also the law of this country, and is so now. It is of authoritative force, and must govern the present case. Besides, if the court were at liberty to elect a rule, I should adopt the English regulation, which divides the loss ratably among the insurers. It is the most convenient, equal and consonant to natural justice, and has been practised upon, nearly half a century, by the first commercial nation in the world. I am not clear, that the practice of France is not in conformity with this rule ; for it is probable, that they open but one policy, bearing the same date, though signed at different times, or different policies of the same date; in either of which cases, by the French ordinance, the insurers contribute ratably to satisfy the loss sustained by the insured. If so, it is precisely the English and American rule. Equality is equity : this maxim is particularly applicable to commercial transactions ; and therefore, the rule of contribution ought to be favored. The pressure, instead of crushing an individual, will be sustained by several, and be light. The result is, that the defendant must contribute ratably to make up the loss of the insured. Petees, Justice?—The point in this cause is, whether in a case of double 1 But see Aitcheson v, Lohre, 4 App, Cases 755, where it is said, that a policy of marine . insurance is not a contract of mere indemnity. 2 In the last edition, this opinion was printed in the appendix; it has now been transferred to its proper place. 304 1800] PENNSYLVANIA DISTRICT. Thurston v. Koch. 352 insurance, the policies are to be taken according to priority ; that is, whether the second is answerable, before the first is exhausted, if the loss is greater than the sum covered by the first ? And if the loss is fully covered by the first, whether, if it be paid by the insurers on the first, they can oblige those on the second to contribute pro rata ? To be respectable abroad, and to facilitate and simplify mercantile business at home, we should have a national, uniform and generally received law-merchant. The custom or practice of one state, differing, perhaps, from that of another, must yield to general and established principles. There is, however, no custom of merchants, in this or any other district of the United States, stated in the case, and we cannot travel out of the statement, in giving our judgment. I mention, as an extraneous fact, of which I have been informed by persons intelligent in business of insurance, that the rule in New York, where they followed the British practice, for a great length of time, was variant from that they now use. The custom in Philadelphia has been, for a long course of years, to settle losses, where there are double insurances, according to priority of policy in date, without regard to time of individual signature : that is, not to call on the second set of underwriters, if those on the first policy were competent, or had paid the amount of subscription or loss. In this event, those on the second policy return the premium, retaining one-half per cent. If this be so, and I have no reason to doubt, it is one of the very few subjects, in which I have been able to discover a decided and universal custom of merchants here. It may have originated, when the British rule was more similar to that of many other nations, than it is now, and was at the time of our revolution. It appears to me, that the custom here is agreeable to the general maritime custom and law of Europe, in this particular. The authorities produced in this cause, on the part of the defendant, warrant me in this opinion. All the European nations, it is true, do not agree : there may not, in every detail, be an exact conformity among any considerable number. But I conceive, that where the greater number of particular laws are coincident in a general principle, this will establish what is called general law. In the point before us, there are exceptions in the laws of Spain, and those of England, to what seems to be the general principle and rule among other trading nations. And the arrangements of those two countries differ from each other. The law or custom of merchants in England was, formerly, more agreeable to the general custom and maritime law of other nations, than it has been decided, in latter times, to be. It is contended, that the British authorities do not show direct decisions of their courts on this point; yet, they are sufficient to satisfy me, of what the law there is. It appears to me, to be clearly settled as law, in England, that in cases of double insurances, if all the policies cover the same risks, there shall be a ratable contribution. It was so settled, at the period of our independence. It was their law-merchant, which, being part of the common law, was binding on us ; and is now engrafted into our maritime code. The cases, before our declaration of independence, clearly show that the law was then so settled. And in cases since that declaration, it is recognised and agreed to be the law. Our insurances in that country being still considerable, the rule is yet useful, on that account, among others. 4 Dall.—20 305 852a UNITED STATES CIRCUIT COURT, [Oct. Thurstca v. Koch. In France, agreeable to an ordinance of Louis XIV., the first policy is to be exhausted, before the second operates, if dated at different times. But different policies, of the same date, are considered as one, and there is a ratable contribution. In Spain, the date and time of individual subscription are attended to, and insurers are called on, according to priority of subscription, even on the same policy. I have had frequent occasions to recur to Spanish regulations. There is, in most of the Spanish maritime laws and customs, a peculiarity which creates an exception, rather than a rule, on many general principles. I cannot see, that it will be materially disadvantageous to commerce, to settle this question, in either way contended for in this cause. It is of most importance, that the point should be clearly decided and settled in one or the other way ; that merchants may know, and accommodate their affairs to the decision. This court can, at least, commence the means of final decision. I believe, with Professor Smith, in his “Wealth of Nations,” cited in this cause, that distributing the burden of losses among the greater number, to prevent the ruin of a few, or of an individual, is most conformable to the principles of insurance, and most conducive to the general prosperity of commerce. The wisdom and experience of the British nation, grown out of their more modern and extended state of commerce, have given additional value to this opinion. Whatever respect (and it is not slight) I may entertain for the laws of other nations, I deem myself bound to follow what was the established law and custom of merchants in England, at the time of our becoming an independent nation : not because it was the law merely of that country ; but because it was, and is, our law. There is sufficient evidence in my mind, in the cases produced out of the British books, to this point, to satisfy me of the law and custom there established on this question. I, therefore, conclude, according to the case of Newby v. Reed (W. Black. 410), that “the insured may recover the whole sum ; and leave the insurer to recover a ratable proportion, from other insurers, on ‘ a double policy,’ and the insured may elect which set of insurers, or which of the individuals, he will sue for the amount of actual loss; beyond which he cannot recover, as he can have but one satisfaction.” On the point stated (the details of which merchants can best adjust), I am of opinion, that the defendant is liable to pay to the plaintiff, a contribution, upon the loss paid by him as stated. This contribution must be made by all the insurers, on all the policies, ratably, as their respective subscriptions bear a proportion to each other, and all of them to the actual loss. The defendant, of course, must pay to the plaintiff his ratable proportion, on these principles, according to the amount of his subscription. Judgment for plaintiff. 306 1801] PENNSYLVANIA DISTRICT. *368 *MAY TERM, 1801. Present—Tilghman, Chief Justice, and Basset and Griffiths, Circuit Judges.1 Hurst’s Lessee v. Jones. Costs of former suit. A defendant cannot, be compelled to proceed to trial, until payment of the costs of a former action, between the same parties, for the same cause, which had been non-prossed. A former ejectment, between the same parties, for the same land, had been non-prossed; but the costs of suit remained unpaid. The defendant’s counsel objected to the trial of the present ejectment, until the costs of the former were paid. By the Court.—The objection is reasonable and just. The defendant cannot, under such circumstances, be compelled to proceed to a trial. The cause continued. Ravels, for the plaintiff. E. Tilghman, for the defendant. Hollingsworth v. New triad. A verdict will not be set aside, on account of the alienage of a juror. Semite, that it is a cause of challenge, before he is sworn. In this case (which was an action for a libel), the defendant filed a plea to the jurisdiction of the court, on the ground, that he, as well as the plaintiff, was a citizen of Pennsylvania. Issue being joined on that fact, it was found by the jury, that the defendant was not a citizen ; and thereupon, in consequence of a previous agreement, a venire issued to ascertain the quantum oi damages, which the verdict settled at $600. After *the ver-diet was given, it appeared, that one of the jurors was an alien ; and (a) s. c. Wall. C. 1 This was the court established under the act of 13th February 1801 (1 U. S. Stat. 89), under the Adams’ administration. Hon. William Tilghman (afterwards and for many years Chief Justice of Pennsylvania) was commissioned as its president judge, on the 3d March 1801, to hold his office, during good behavior, as provided by the constitution. But on the 8th of March 1802, on the coming in of the Jefferson administration, the act was repealed (1 U. S. Stat. 132), and the judges were deprived of their offices, without the imputation of a fault. It is known, that Chief Justice Tilghman’s opinion was against the validity of the repealing law ; for, in a very able protest, published by Judge Basset, in which the breach of the constitution was strenuously as- C. 47, 51, 77, 141. serted, he remarks: “ If any difference between me and my associates in office exists, it relates merely to the point of time for expressing our sentiments. I can confidently assert that, on deliberation, they coincide with me in other respects.” It is said, that Judge Tilghman, in after life, never alluded to the circumstance of his having been a judge of that court. Binney’s Eulogium, 16 S. & R. 441. Its decisions are chief reported in Mr. JohnB. Wallace’s reports, originally published in 1801, by Asbury Dickens. The constitutionality of the repealing act was mooted, in the case of Stuart v. Laird, 1 Cr. 299, but the judges avoided any expression of opinion upon the question. 807 354 CIRCUIT COURT UNITED STATES, [May Penn v. Butler. Dallas obtained a rule to show cause, why the verdict should not be set aside for that reason. On the argument in support of the rule, it was contended : 1st. That the trial by jury, entire, was anxiously adopted by the United States, as well as by this state; including the right and causes of challenge as at common law, in civil and in criminal cases. 1 Dall. Laws, App. 55, § 9, 11 ; Ibid. 58. § 25; 3 Ibid. 36, § 9, 6; 4 vol. Acts Cong. p. 25, art. 8, 9; 1 Dall. Laws, 134, § 4; 2 Ibid. 802, § 2; 3 Ibid. 606, § 16; 2 Ibid. 264, § 9, 12, 3 ; 1 vol. Acts Cong. 113, § 30; Ibid. 68, § 29. 2d. That on principle, as well as on authority, alienage was a cause of challenge to a juror, before verdict. 3 Dall. Laws, Const, art. VIII.; 1 Acts Cong. Const, art. VI.; Ibid. 67, § 29 ; 1 Roll. Abr. 657 ; Co. Litt. 156 b ; 3 Bl. Com. 362; Gilb. P. C. 94 ; 1 Dall. 74. 3d. That if the cause of challenge was unknown, when the jury was qualified, it may be used to set aside the verdict, as for a mistrial. 3 Dall. 515 ; 11 Mod. 119 ; 2 Wood. 352 ; An. Reg. 1790,p. 46 ; 2 Ld.Raym. 1410; 1 Str. 640 ; 1 Acts Cong. 6, § 17 ; 2 Str. 1000, 593. D. Tilghman and Ingersoll, in opposition to the rule, contended, 1st. That, in Pennsylvania, alienage was not a cause of challenge to a juror. But 2d. That the objection was too late, after the juror was sworn, and the verdict was given. The Court, after a long advisement upon the subject, seemed to think, that alienage might have been a cause of challenge, before the juror was sworn ; but upon an extensive review of the authorities, they decided, that advantage could not be taken of it, after verdict. Rule discharged, (a) Penn v. Butler. Butler v. Penn. Penn v. Penn. Same v. Same. Possession of securities. The survivor of two joint obligees, is, at law, entitled to the possession of the joint securities; and a court of equity will not interfere with the disposition of them, unless some ground is laid for its interposition. These were bills in equity, involving a great variety of facts, respecting the disposition of the estates of the late proprietary family : but the principal object of all of them, was submitted for the opinion of the court, on the following agreement : “ It is agreed, that these suits be submitted for the opinion of the court upon the following statement of facts, admitted by *all the parties, except the fact, that Anthony Butler, for his own accommodation, and without the consent, knowledge or approbation of John Penn, the elder, took, inter alia, in part payment of certain sales hereinafter mentioned, certain bonds and mortgages, in the joint names of John Penn, the elder, and John Penn, the younger, as obligees and mortgagees ; which fact, it is agreed, (a) Since the discussion of this case, the marshal has been directed not to return aliens upon the panel; and, in many instances, when aliens have been returned, the state, as well as the federal, courts have discharged them, upon their own application. 308 1801] PENNSYLVANIA DISTRICT. 355 Penn v. Butler. shall be decided by the court, on evidence to be produced; and that such formal decrees be eventually drawn and entered in each, as will effectuate the opinion which the court shall pronounce. Case. John Penn, the elder, and John Penn, the younger, after the act of assembly of Pennsylvania, passed November 27th, 1779, entitled “ an act for vesting the estates of the late proprietaries of Pennsylvania in this commonwealth,” remained seised and possessed, as tenants in common, of all their manors, reserved tracts, &c., in Pennsylvania, with power to sell in fee: three-fourth parts being the property of John Penn, the younger ; and onefourth part being the property of John Penn, the elder. On the 19th of November 1787, John Penn, the elder, appointed John F. Mifflin his attorney, with power to sell and convey, &c., to receive payment for lands sold, either in money or securities ; and to substitute any agent or agents; and on the 23d of December 1787, John F. Mifflin substituted Anthony Butler. On the 29th day of June, in the year 1787, John Penn, the younger, appointed Robert Millegan and John F. Mifflin his attorneys, with power to sell and convey, &c., to receive payment for lands sold, either in money or securities ; and to substitute any agent or agents. And on the 29th day of June, in the year 1787, Robert Millegan and John F. Mifflin substituted Anthony Butler. John Penn, the younger, afterwards revoked the power of attorney, which he had granted to Robert Millegan and John F. Mifflin ; and on the 29th of April 1788, John Penn, the younger, appointed the said Anthony Butler his attorney, with power to sell and convey, and to receive in payment money or securities. By virtue of the several powers above stated, Anthony Butler did, at sundry times, sell several tracts of land belonging to the said John Penn, the elder, and John Penn, the younger, as tenants in common, in the proportions aforesaid; and in payment therefor {inter alia) took, for his own accommodation, without the consent, knowledge or approbation of the said John Penn, the elder, certain bonds and mortgages, in the joint names of John Penn, the younger, and John Penn, the elder, as obligees and mortgagees. After the time of taking the said bonds and mortgages, to wit, on 9th of February 1795, John Penn, the elder, died, leaving Anne Penn and John F. Mifflin, executrix and executor of his last will and testament, * “ There are in the hands of Anthony Butler a number of bonds and mortgages, taken as aforesaid, in each and all of which bonds and mortgages, the said John Penn, the younger, is interested three undivided fourth parts ; and the aforesaid executors of John Penn, the elder, are interested the other one undivided fourth part. “ Questions. 1st. Whether John Penn, the younger, as surviving obligee and mortgagee, is entitled to have and receive from Anthony Butler, all the said bonds and mortgages, for the purpose of collecting and distributing the money thereby secured and made payable, according to the respective interests of the parties ? “2d. Or, whether the executors of John Penn, the elder, are entitled to receive one-fourth part in value of the said specific bonds and mortgages, for their separate use and benefit ? “ 3d. Or, whether the court will consider the bonds and mortgages, under the circumstances of the case, as several, as well as joint, to be followed with the consequences inferrible from such principle ?” 309 J I ' I • 356 UNITED STATES CIRCUIT COURT, [May Penn v. Butler. On the hearing, Mr. Butler’s testimony stated, “that he was, at first, the separate agent oi John Penn, the younger, when Mr. T. Francis was the separate agent of John Penn, the elder ; that during this period, the bonds for purchase-money of lands sold, were separately taken, according to the interest of the parties; that in September 1787, he became the agent of both the Penns, but continued, for some time, to take separate bonds ; that the purchasers complained of the expense of giving separate bonds and mortgages, and he then determined to take them for the joint use of his principals ; that he received no instructions upon the subject, from either party ; and that he was nt t, in fact, aware of any difference between taking the bonds jointly, or severally.” It also appeared, that Mr. J. R. Coates had been appointed the agent of John Penn, the younger ; and the general question was, whether Mr. Butler should be directed to deliver up the joint bonds and mortgages to him, as the agent of the surviving obligee ? Ingersoll and Mifflin contended, against the claim of the surviving obligee : 1st. That it was founded merely on the mistake and misapprehension of the agent, acting for two parties, having distinct interests, and giving separate powers. 2d. That, under such circumstances, a court of equity can and ought to apportion the securities, by a fair division of them; so that each party may possess the entire interest and remedy in his proportion. 3d. That even if an apportionment could not be made, the court will appoint a receiver, to collect and divide the joint fund, in the regular proportions. On these points, the following books were cited : 3 P. Wms. #35^ 158 ; 21 Vin. Abr. 509, pl. 4; Carth. 16 ; 1 Eq. Abr. 293 ; *3 Ves. jr., 628, 631, 399 ; 2 Com. Dig. 255, 258; 1 Eq. Abr. 290 a. Rawle and Dallas, in support of the claim of the surviving obligee, urged, 1st. That the point of law is clearly in favor of the claim ; and to set aside a plain rule of law, there must be strong, controlling principles of equity, in favor of the opposite party. 2d. That the act of taking joint securities was not a mistake or error ; but a deliberate act, for the accommodation of purchasers. 3d. That there was no suggestion of a fraud, a breach of trust, wilful laches, or probable insolvency, in reference to the surviving obligee. 4th. That there is, therefore, no foundation for the interposition of the court to appoint a receiver; nor to justify a court of equity in compelling the parties to accede to an arbitrary apportionment of the securities. On these points were cited, Yelv. 177 ; Vent. 34 ; 3 Dyer 350; Sheph. 363, 356 ; 2 Brownl. 207 ; 1 Eq. Abr. 290 ; 2 Pow. 263 ; Ambl. 311 ; Wallace v. Fitzsimons, 1 Dall. 248 ; 2 Com. Dig. 110, 209, 213, 255 ; 2 Vern. 556. The Court were decidedly of opinion, that, at law, the surviving obligee was entitled to the possession of the joint securities, that he might recover the amount; and that there was no ground laid, on the present occasion, for the interposition of a court of equity, (a) (a) On this clear intimation of the opinion of the court, Mr. Coates liberally declared, that if the executors of John Penn, the elder, would concur in giving him immediate possession of the securities, he would not charge a commission for collecting and paying their proportion of the amount ; and the proposition was, accordingly, agreed to. 310 1802] PENNSYLVANIA DISTRICT. *358 *MAY TERM, 1802. Present—The same Judges. United States v. Conyngham et al' Execution.—Constructive frond. Goods, though chiefly household furniture, suffered to remain in the possession of the defendant, for more than a year after a levy, are liable to a subsequent execution? This cause came before the Court, on a case stated for their opinion, in the following terms : “At the term of September 1798, judgment was obtained in the supreme court of Pennsylvania, at the suit of John Travis et al. v. Francis and John West, for 1365?. 3s. 9^. debt, and 6c?. costs. A fieri facias issued under the said judgment, returnable to December term 1798, under which certain goods and chattels, (a) belonging to the defendants, were levied on and taken in execution, by the sheriff of the county of Philadelphia, on the 8th day of January 1799. The 8th of January 1799, the said John Travis and others, plaintiffs in the said action, for a full and valuable consideration, to them paid by the defendants in this action, assigned the judgment, and all the moneys due thereon, to them, the said David H. Conyngham and John M. Nesbitt. The goods and chattels so as aforesaid levied upon, were, with the assent and approbation of the said plaintiffs in the said judgment, before the said assignment, and by the defendants in this action, since the said assignment, and by the sheriff, with the assent and approbation aforesaid, permitted to be and remain *in the possession of the said Francis and pq-n John West, until the levying of the execution hereinafter men- *• tioned. “At the August sessions 1797, of the district court of the United States for the Pennsylvania district, judgment was obtained, at the suit of the United States, against the said Francis and John West, under which judgment, a writ of fieri facias was issued, and on the 13th day of January 1800, was levied on the same gdods and chattels, then being in the possession of the said Francis and John West, or one of them. On or about the 20th day of April 1801, after a time had been fixed, by the marshal of the United States, for the sale of the property so levied on by him, at the suit of the United States, and after advertisements had been put up in the most public places of the city of Philadelphia, notifying the time and place of such sale, the present defendants, for the first time, gave notice of the prior execution before mentioned. Notice was given to the marshal, that if he proceeded on the sale, an action would be brought against him ; and it was, therefore, agreed, that the goods should be appraised by sworn appraisers, which was done, and the value thereof, according to the appraisement, amounting to $1557.75, is admitted to be in the hands of the defendants in this action. (a) It was agreed, on the argument, to state, that the goods were principally household furniture. ’s c. Wall. 0.0.178. 2 See the remarks of Judge Duncan, in Dean v. Patton, 18 8. & R. 845 311 359 UNITED STATES CIRCUIT COURT, [May Knox v. Greenleaf. “ The question submitted to the court is, whether, on the preceding circumstances, the execution issued by John Travis et al. can be supported against the execution subsequently issued by the United States. If the court shall be of opinion in the affirmative, then judgment to be given for the defendant, otherwise, for the plaintiff. “January 30th, 1802. A. J. Dallas, for plaintiff. Moses Levy, for defendant.” The question was discussed by Rawle and Dallas, for the plaintiff, and by Dewis and Devy, for the defendant; the former relying on the authorities in the English books : 1 Yes. 245-6 ; 1 Wils. 44; 7 Mod. 37 ; 10 Vin. Abr. 561, 568 ; Peake N. P. 65 ; 1 Salk. 320 ; Carth. 420 ; 2 Vern. 238 ; Ld. Raym. 251 ; Cowp. 712 ; 1 T. R. 729 ; 1 Esp. 205. And the latter relying on the decisions of the courts of Pennsylvania, varying the English rule of law, according to the peculiar circumstances of the country. See ante, p. 165, 208, 213. (a) The Court, after great deliberation and research, delivered elaborate opinions, seriatim, upon the principles and authorities connected with the discussion ; expressed their regret at differing from the decisions of the state courts ; and unanimously gave judgment for the plaintiff. *360] *Knox et al. v. Greenleaf. (6) Jv/risdiction.—Citizenship. A citizen of one state, removing to another, purchasing real estate, paying taxes and residing in the latter for about four years, becomes a citizen thereof, so far as regards the jurisdiction of a federal court; notwithstanding a temporary absence, during which he acquired and exercised municipal rights in a third state. Case. The defendant filed the following plea in abatement: “The said James Greenleaf, who is impleaded by the addition and description of a citizen of the state of Maryland, by Jared Ingersoll, his attorney, comes and defends the force and injury, &c., and says, that he, long before the arrest in the present action, and at the same time, as well as twelve months preceding the said arrest, and continually afterwards, was, and yet is, a citizen of the state of Pennsylvania, having his permanent domicil and residence in the said state or district of Pennsylvania, and not a citizen of the state of Maryland. And the said James Greenleaf, by his attorney aforesaid, further saith, that according to the constitution and laws of the United States, a citizen of Pennsylvania cannot be impleaded or compelled to answer by another citizen of the same state, before the judges of the circuit court, but only in the courts of the state, having competent jurisdiction of the case. And this he is ready to verify : therefore, he prays judgment, if he ought, to be compelled to answer the said William to the said plea in court, &c. The plaintiffs filed a replication, averring that the defendant was a citi- (a) See further, on this subject, Pritchett ®. Jones, 4 Rawle 264. (5) s. c. Wall. C. C. 108; which is a report of the case, on a motion to discharge the defendant on common bail. 312 1802] PENNSYLVANIA DISTRICT. Knox v. Greenleaf. 360 zen of Maryland ; and issue being thereupon joined, the question ^as tried before Griffiths and Basset, associate judges, the Chief Judge declining, on account of a family connection with the defendant, to take judicial part in the cause. Upon the evidence, it appeared, that the defendant was a native of Massachusetts ; that he came to Philadelphia in 1796, and purchased a valuable house in Chestnut street, in which he lived, until his pecuniary embarrassments and consequent imprisonment occurred, in 1798 ; that his clerks and servants continued afterwards to live there, until the house was sold to Mr. Tilghman ; that being discharged by the Pennsylvania insolvent acts, in March 1798, he went to the southward, and returned to Philadelphia before the yellow fever of 1798 had subsided ; that between the 5th of November 1798, and the 20th of January 1799, he applied to the legislature of Maryland, styling himself of that state, for the benefit of an insolvent act, in the nature of a bankrupt law, that on the 10th of January 1799, an act was passed accordingly, in which he was described as “ of Prince George county,” and by which it was provided, that the chancellor, before granting the benefit of the act, should be satisfied, by competent testimony, that the defendant was, at the time of passing the act, “ a citizen of the United States, and of this state*that the defendant was discharged under this act, on the 30th of August 1799 ; that he returned to Philadel- *• phia in February 1800 ; that he removed from Philadelphia to Northampton county, in June of the same year, had paid taxes there, and had never left the state since ; and that he was arrested, in the present suit, on the 20th of February 1801. The principal point discussed, upon these facts, was, whether the defendant was a citizen of Pennsylvania, so as to exclude the jurisdiction of the federal court, the plaintiffs being themselves citizens of that state ? (a) For the plaintiffs, it was contended, by Moylan, that the defendant could only be regarded as an inhabitant, not as a citizen, of Pennsylvania ; that he had represented and proved himself to be a citizen of Maryland, in August 1799, or he could not have enjoyed the benefit of the act of that state ; and that he had not, upon the most liberal calculation of time, resided in Pennsylvania long enough to acquire the rights of permanent citizenship, upon the principle of the constitution. (1 U. S. Stat. 78, § 11; Const. Penn. Art. III. § 1.) For the defendant, it was contended, by Ingersoll and Dallas, that a citizen of one state was constitutionally entitled to be a citizen of every state ; that the acts of congress prescribe a mode for naturalizing aliens, but none for communicating the municipal rights of citizenship to a citizen removing from one state to another ; that as to the naturalization of aliens, Pennsylvania leaves the subject to the acts of congress ; and for the exercise (a) This action was brought against Mr. Greenleaf, as indorser of notes issued by Morris & Nicholson, which he had pledged as security for his, own notes, given to the plaintiffs. His own notes were due, before he was discharged under the insolvent act; but the notes of which he was indorser, became due afterwards. This afforded matter for argument, but did not appear to enter into the decision of the court. The plaintiff’s counsel cited Howis ®. Wiggins, 4 T. R. 714. 813 361 UNITED STATES CIRCUIT COURT, [April Balfour v. Meade. and enjoyment of every right of citizenship, her constitution only stipulates, that the party shall be a citizen, shall have resided for a specified time, and shall have paid taxes ; that the three requisites must be complied with, in the case of a native, as well as of an adopted citizen, for the purposes contemplated ; that, being a citizen, absence from the state does not disfranchise, except as to the right of electing and being elected, which depends on residence as well as citizenship ; that a citizen of Massachusetts, coming into Pennsylvania, with a view to settle, acquiring real estate, and paying taxes, is a citizen of Pennsylvania, to every purpose, but that of electing or being elected, within the respective periods prescribed by the constitution; and that the laws of Maryland communicate, instanter, the rights of municipal * citi2611^!?} *t0 a citizen going thither from another state, without J impairing the permanent domiciliated citizenship, to which he is entitled in his own state. (Const, art. IV. § 1 ; 2 Dall. 370 ; Const. Penn, art. I. § 3, 8 ; art. II. § 4, 8 ; art. III. § 1 ; art. IV. § 1 ; art. IX. § 20, 21; 4 Dall. Laws, 332, § 1 ; 1 Dall. 152, 158, 241 ; Maryland Laws, July 1779, ch. 6 ; Nov. 1789, ch. 24 ; Nov. 1792, ch. 14 ; Nov. 1793, ch. 26.) The Covet were clearly of opinion, that the defendant was entitled to be considered as a citizen of Pennsylvania ; and the jury found a verdict accordingly. Verdict for the defendant. ♦363] * APRIL TERM, 1803. Present—Washington, Justice, and Petees, District Judge. Balfoue’s Lessee v. Meade, (d) Settlement. To constitute a settlement, under the act of April 3d 1792, so as to vest in any one an inceptive title to the lands lying north and west of the Ohio, &c., there must have been an occupancy by him, accompanied by a bond fide intention to reside upon the land, either in person, or by a tenant: the making of improvements merely, is not such a settlement. The proviso of the 9th section of that act applies solely to those who had incipient titles, which could only have been created by such occupancy or by warrant: a warrant of acceptance for these lands, not founded on such settlement, though containing a false recital of it, gives no title. This was an ejectment for four tracts of land, lying north and west of the Ohio and Allegheny rivers and Conewango creek, in Pennsylvania. The plaintiff’s title rested upon settlement rights, surveys and warrants. In 1793, the plaintiff was a surgeon in the army, in garrison at Fort Franklin. He took some of the soldiers, went out, cut down a few trees, and built up five pens or cabins, about ten feet square, and without putting covers on them, returned back to the fort, in six or seven days. In April 1795, he had these five tracts surveyed in the name of himself, Elizabeth Balfour, and three others, each, four hundred acres. The deputy-surveyor (a) s. c. 1 W. C. 0.18. 8U 1803] PENNSYLVANIA DISTRICT. 363 Balfour v. Meade. had, upon application of the plaintiff, directed one' Wilson to make the surveys, but something preventing him from doing it, the plaintiff employed one Steel to do it; and upon returning the surveys to Stokely, the deputysurveyor, he prevailed upon him to write an authority to Steel to make the surveys, which Stokely says, he did: and ante-dated it, in order to make it appear to precede the surveys. In May 1795, he obtained warrants of acceptance for two of the surveys of two of the tracts, having paid the consideration-money for all. In the autumn of 1794, Meade, the defendant, finding no person settled upon these tracts, built cabins upon the four tracts in controversy, covered them, or some of them, and then went off, not returning again, until November 1795, when he came, with his family, to reside in one of the cabins, and fixed settlers upon the other tracts. In July 1795, the plaintiff gave notice to the defendant, *that he claimed the tracts in question, that he intended to settle them, and forewarned him to proceed no further L with his improvements thereon. In January 1796, the defendant caveated the plaintiff in form, and the same being tried before the board of property, in March 1800, the caveats were dismissed, and warrants were ordered to issue; but they never did issue, in consequence of doubts afterwards existing respecting the plaintiff’s title. In April 1796, the plaintiff made engagements with some persons to settle these lands for him; but after they had seen and approved the lands, they declined going on them, on hearing of the defendant’s claim. It was in proof, by many witnesses, that the war with the Indians rendered it dangerous to settle that country, during the year 1793, 1794 and 1795, and that but few attempted, before the spring or autumn of 1796. E. Tilghman and Dallas contended, that the plaintiff had acquired a good right by settlement, survey and warrant, to the lands in question, under the laws of Pennsylvania, and particularly the act of the 3d of April 1792 (3 Dall. Laws, 209) ; that the settlement of Meade, in 1795, was in violation of the plaintiff’s prior right, and, of course, void ; that the plaintiff had been prevented by the Indian hostilities, from settling or fixing settlers, until the treaty of Fort Grenville, made in August 1795, and ratified in December 1795, and that he had attempted to settle it in a reasonable time after that event. 1 Dall. 6 ; 2 Ibid. 98; 3 Ibid. 457 ; Addison 216, 354, 218. Ingersoll and McKean contended, that the plaintiff never had made a settlement, within the meaning of the law, not having accompanied it with actual residence, or an intention to reside; that, of course, he never had an inceptive title, to be protected by the proviso in the 9th section of the act of the 3d of April 1792. They cited Addison, 248, 335 ; the case of the Holland Company v. Coxe, in the supreme court of this state (ante, p. 170), and the decisions of the judges of that court, in a feigned issue, tried at Sunbury (ante, p. 237). Washington, Justice.—The importance of this cause led the court to wink at some irregularities in the argument at the bar, which have tended to protract it to an unreasonable length. Depending on the construction of laws of the state, and particularly on that of the 3d „of April 1792, it 815 364 UNITED STATES CIRCUIT COURT, [April Balfour v. Meade. had, at first, the appearance of a difficult and very complicated case. It is not easy, at the first reading of a long statute, to discover the bearings of one section upon another, so as to obtain a distinct view of the meaning and intention of the legislature. But the opinion I now entertain was *00si formed on Saturday, before we parted; open, however, *as it always J is, to such alterations as ulterior reason and argument may produce. The better to explain, and to understand, the subject, it will be necessary to take a general view of the different sections of the act of the 3d of April 1792, upon which this cause must turn. The 1st section reduces the price of all vacant land, not previously settled or improved, within the limits of the Indian purchase, made in 1768, and all precedent purchases, to 50s. for every 100 acres; that of the vacant lands within the Indian purchase made in 1784, lying east of Allegheny river and Conewango creek, to 54, to be granted to purchasers in the manner authorized by former laws. The 2d section offers for sale all the other lands of the state, lying north and west of the Ohio, Allegheny and Conewango, to persons who will cultivate, improve and settle the same, or cause it to be done, at the price Ox 74 10s. per hundred acres, to be located, surveyed and secured as directed by this law. It is to be remarked, that all the above lands lie in different districts, and are offered at different prices. Title to any of them may be acquired by settlement, and to all, except those lying north and west of the Ohio, Allegheny and Conewango, by warrant, without settlement. The 3d section, referring to all the above lands, authorizes applications to the secretary of the land-office, by any person having settled and improved, or who was desirous to settle and improve, a plantation, to be particularly described ; for a warrant for any quantity of land, not exceeding 400 acres, which warrant is to authorize and require the surveyor-general to cause the same to be surveyed, and to make return of it, the grantee paying the purchase-money and fees of office. The 8th section, which I notice in this place, because intimately connected with the third section, directs the deputy-surveyor to survey and mark the lines of the tract, upon the application of the settler. This survey, I conceive, has no other validity than to furnish the particular description, which must accompany the application at the land-office for a warrant. The 4th section, amongst other regulations, protects the title of an actual settler, against a warrant entered with the deputy-surveyor, posterior to such actual settlement. The 9th section, referring exclusively to the lands north and west of the Ohio,- Allegheny and Conewango, declares, “ that no warrant or survey of lands within that district, shall give a title, unless the grantee has, prior to the date of the warrant, made, or caused to be made, or shall, within two years after the date of it, make or cause to be made, an actual settlement, by clearing, fencing and cultivating two acres, at least, in each hundred acres, erecting thereon a house for the habitation of man, and residing, or causing a family to reside, thereon, for five years next following his J first settling the same, if he shall *so long live; and in default of such actual settlement and residence, other actual settlers may acquire title thereto.” Let us now consider this case, as if the law had stopped here. A title to the land in controversy, lying north and west of the Ohio, Allegheny and 316 1803] PENNSYLVANIA DISTRICT^ 36ff Balfour v. Meade. Conewango, co aid be acquired in no other manner than by actual settlement ; no sum of money could entitle a person to a warrant, unless the application was preceded by actual settlement on the land, or, if not so preceded by actual settlement, the warrant would give no title, unless it were followed by such settlement, within two years thereafter. The question then is, what constitutes such an actual settler, within the meaning and intention of this law, as will vest in him an inceptive title, so as to authorize the granting to him a warrant ; not a pedis possessio ; not the erection of a cabin, the clearing, or even the cultivation, of a field: these acts may deserve the name of improvements, but not settlements. There must be an occupancy, accompanied with a bond fide intention to reside and live upon the land, either in person, or by that of his tenant, to make it the place of his habitation, not at some distant day, but at the time he is improving : for if this intention be only future, either as to his own personal residence, or that of a tenant, then the execution of that intention, by such actual residence, fixes the date; the commencement of the settlement, and the previous improvements, will stand for nothing in the calculation. The erection of a house, and the clearing and cultivating the ground, all or either of them, may afford evidence of the quo animo with which it was done ; of the intention to settle ; but neither, nor all, will constitute a settlement, if unaccompanied by residence. Suppose, then, impro vements made, the person making them, declaring at the time, that they were intended for temporary purposes of convenience, and not with a view to settle and reside : could this be called an actual settlement, within the meaning and intention of the legislature ? Surely, no : but though such acts, against express declarations of the quo animo, will not make a settlement, it does not follow, that the converse of the proposition will; for a declaration of an intention to settle, without actually carrying that intention into execution, will not constitute an actual settlement. How do these principles apply to the case of the plaintiff? In 1793, he leaves the fort at which he was stationed, and in which he was an officer, with a few soldiers; cuts down some trees, erects four or five pens (for, not being covered, they do not deserve the name of cabins), and in five, six or seven days, having accomplished this work, he returns into the fort, to his former place of residence. Why did he retreat so precipitately ? We hear of no danger existing, at the time of completing these labors, which did not exist during the time he was engaged in them. What prevented him from proceeding to cover the cabins *and from inhabiting them ? Except the state of general hostility, which existed in that part of the coun- L try, there is no evidence of a particular necessity for flight, in the instance of this plaintiff. It is most obvious, that the object of his visit to this wilderness was, to erect what he considered to be improvements; but tbe^ were, in fact, uninhabitable by a human being, and consequently, could not have been intended for a present settlement. He was, besides, an officer in the army, and whilst in that service, he could not settle and reside at his cabin, although the country had been in a state of perfect tranquillity. In short, his whole conduct, both at that time and afterwards ; his own statements, when asserting a title to the lands, the recitals in his warrants of acceptance, and certificates of survey, all afford proof which is irresistible, that he did 317 367 ' UNITED STATES CIRCUIT COURT, [April Balfour v. Meade. not mean, in 1793, to settle. Mistaking the law, as it seems many others have done in this respect, he supposed that an improvement was equivalent to a settlement, for vesting a right in those lands. It is not pretended, even now, nor is it proved by a single witness, not even by Crouse, who assisted in making the improvements, that he contemplated a settlement. It has been asked, could the legislature have meant to require persons to sit down, for a moment, on land encompassed by dangers from a savage enemy ? I answer, no : at such a time, it was very improbable, that men would be found rash enough to make settlements. But yet no title could be acquired, without such a settlement, and if men were found hardy enough to brave the dangers of a savage wilderness, they might be called imprudent men, but they would also deserve the promised reward, not for their boldness, but for their settlement. The first evidence we have of an intention in the plaintiff to make an actual settlement, was in the spring of 1796, long after the actual bond fide settlement of the defendant with his family; for I give no credit to the notice from the plaintiff to the defendant, in July 1795, since, so far from accompanying it with actual settlement, he speaks of a future settlement, which, however, was never carried into execution. Everything which I have said with respect to the 400 acres surveyed in the name of George Balfour, will apply, d fortiori, against the three other surveys in the name of Elizabeth Balfour, &c., who it is not pretended were ever privy even to the making of the cabins, or ever contemplated a settlement upon those lands. If the law, then, had stopped at the proviso, it is clear, that the plaintiff never made such a settlement as would entitle him to a warrant. But he excuses himself from having made such a settlement, as the law required, by urging the danger to which any person, attempting a residence in that country, would have been exposed. He relies on the proviso to the 9th section of the law, which declares, “ that if any such actual settler, or any grantee #qg8-i in any such original or succeeding warrant, shall, by force of *arms b -• of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if each actual settlement had been made and continued.” Evidence has been given of the hostile state of that country, during the years 1793, 1794, 1795, and the danger to which settlers would have been exposed. We know, that the treaty at Fort Grenville was signed on the 3d of August 1795, and ratified the 22d of December, in the same year. Although Meade settled, with his family, in November 1795, it is not conclusive proof that there was no danger, even then; and, at any rate, it would require some little time and preparation, for those who had been driven off, to return to their settlements ; and if the cause turned upon the question, whether the plaintiff had persevered in his exertions to return and make such settlements, as the law requires, I should leave that question to the jury, upon the evidence they have heard. But the plaintiff, to entitle himself to the benefit of the proviso, should have had an incipient title, at some time or other, and this could only have been created, by actual settlement, preceding the necessity which obliges him to seek the benefit of the proviso, or by warrant. I do not mean to say, that he must have had such an actual settlement, 318 1803] PENNSYLVANIA DISTRICT. 368 Balfour v. Meade. as this section requires to give a perfect title; for if he had built a cabin, and commenced his improvement, in such manner, as to afford evidence of a bond fide intention to reside, and had been forced off by the enemy, at any stage of his labors, persevering, at all proper times afterwards, in endeavors to return, when he might safely do so, he would have been saved by the proviso. But it is incumbent on the plaintiff, if he would excuse himself from the performance of what has been correctly called a condition precedent, to bring himself fully and fairly within the proviso, which was made for his benefit: this he has not done. Decisions in the supreme court, and in the common pleas of this state, have been cited at the bar, two of which I shall notice, for the purpose of pointing out the peculiar mark which distinguishes them from the present, and to prevent any conclusions from being drawn from what has been said, either to countenance or impeach those decisions. The cases I allude to are, the Holland Company v. Coxe, and the feigned issue tried at Sunbury. The incipient title, under which the plaintiffs claimed in those causes, were warrants, authorized by the 3d section of the law ; the incipient title in the present case, is settlement. The former was to be completed by settlement, survey and patent; this was to precede the warrant; and for the more distinct explanation of this distinction, it will be important to r*36g ascertain what acts will constitute an actual settler, to whom a war- L rant may issue, and what constitute an actual settlement as the foundation of a title. I have before explained, who may be an actual settler, to demand a warrant, namely, one who has gone upon and occupied land, with a bond fide intention of an actual present residence, although he should have been compelled to abandon his settlement, by the public enemies, in the first stages of his settlement: but actual settlement, intended by the 9th section, consists in clearing, fencing and cultivating, two acres of ground, at least, on each hundred acres, erecting a house thereon, fit for the habitation of man, and a residence continued for five years next following his first settling, if he shall so long live. This kind of settlement more properly deserves the name of improvements, as the different acts to be performed clearly import. This will satisfactorily explain what, at first, appeared to be an absurdity in that part of the proviso, which declares, that11 if such actual settler shall be prevented from making such actual settlement, &c.” The plain meaning is, that if a person has once occupied land, with an intention of residing, although he has neither cleared or fenced any land, and is forced off by the enemies of the United States, before he could make the improvements, and continue thereon for five years ; having once had an incipient title, he shall be excused by the necessity, which prevented his doing what the law required, and in the manner required; or if the warrant-holder, who, likewise, has an incipient title, although he never put his foot upon the land, shall be prevented by the same cause, from making these improvements, &c., he, too «hall be excused if, as is required also of the settler, he has persevered in his endeavors to make those improvements; &c. But what it becomes such a grantee to do, before he can claim a patent, or even a good title, is quite another question, upon which I give no opinion. As to the plaintiff’s surveys and warrants, they cannot give him a title. Not the surveys. 1st. Because they are a mere description of the land, which the surveyor is authorized by the 8th section to make, and the appli- 319 369 UNITED STATES CIRCUIT COURT, [April Humphries v. Blight. cant for the warrant is directed, by the 3d section, to lodge in the land-office at the time he applies for the warrant. It is merely a demarcation, a special location of the land intended to be appropriated, and gives notice of the bounds thereof, that others may be able to make adjoining locations, without danger of interference : that is not such a survey as is returnable, so as to lay the foundation of a patent. 2d. It is not authorized by a warrant. 3d. It was not for an actual settler. 4th. It was not made by an authorized surveyor, if you believe, upon the evidence, that the authority to Steel was ante-dated, and given after the survey was returned. Not the warrants. 1st. Because it was not a warrant of title, but of acceptance. *2d. -1 It is not founded on settlement, but improvement, and if it had recited the consideration to be actual settlement, the recital would have been false in fact, and could have produced no legal valid consequence. As to the caveat ; the effect of it was to close the doors of the land-office against the further progress of the plaintiff in perfecting his title. The dismissal of it, again opened the door, but still, the question as to title is open for examination in ejectment, if brought within six months, and the patent will issue to the successful party. The plaintiff, therefore, having failed to show a title sufficient to enable him to recover in this action, it is unnecessary to say anything about the defendant’s title ; and your verdict ought to be for the defendant. The jury found for the defendant. Humphries v. Blight’s assignees, (a) Bankruptcy.—Set-off. Where the holder of a negotiable note indorses it to a third person, after a commission of bankruptcy has issued against the payee, the indorsee may prove under the commission, but subject to all just off-sets, existing at the time of the bankruptcy. This was an amicable action, to obtain a decision upon these general facts : Murgatroyd, being possessed of two notes, made by Peter Blight, payable without defalcation, and being indebted to Humphries, offered to give the notes in part payment, and cash for the rest of the debt. The notes had been due for some time ; and a commission of bankruptcy had previously issued against Blight; but Blight, upon an application from Humphries, advised him to accept the proposition, without any intimation of a defence or set-off. The notes were, accordingly, indorsed by Murgatroyd to Humphries ; but when presented by the indorsee, to be proved under the commission, the assignees of Blight claimed a right to set off a debt due from Murgatroyd to Blight; and for the trial of this claim the present action was instituted. Two questions, however, were discussed on the trial: 1st. Whether the holder of a promissory note, purchased after a commission of bankruptcy had issued against the maker, could prove the debt, under the commission ? 2d. Whether the note, being purchased after it was due, had not lost its general negotiable character; and consequently, remained subject to any set-off, that would apply between the drawer and payee ? (a) s. c. 1 W. 0. 0. 44. 320 1804] PENNSYLVANIA DISTRICT; 370 United States v. Passmore. Hare and Dallas argued for the plaintiff, and cited 5 vol. Acts Cong. p. 68, § 34; 5 Geo. IL, c. 30, § 7,§ 28; 5 vol. Acts Cong. p. 15, 74, § 1, § 42 ; 1 Atk. 73; 2 Wils. 135 ; Cull. 99; Evans 220; Co. B. L. 19; 1 Atk. 119; 4 Dall. Laws, 102-3 ; 3 T. R. 80, 7 Ibid. 429 ; 2 Dall. 396 ; 2 Fonbl. 150 ; Anstr 427. * Ramie argued for the defendants, and cited 4 T. R. 714 ; 6 Ibid. 57 ; 2 Str. 1234 ; 3 T. R. 80 , Co. 96 ; 5 vol. Acts Cong. p. 74, § 42. L By the Court.—1st. We have no doubt upon the right of the assignee of the note, in this case, to prove the debt under the commission, and to receive a dividend. The certificate of the bankrupt would be a bar to a recovery, in an action by the present holder of the note against him; and wherever a certificate will be a bar, the right to prove the debt, under the commission, must be unquestionable. 2d. In the case of negotiable paper, or in the case of an assignable bond, we have always thought, that the assignee takes it.discharged of all the equity (as between the original parties) of which he had no notice. But whenever the assignee has notice of such equity, either positively or con-stru.ctively, he takes the assignment at his peril. The assignment, in this case, was taken after the commission of bankruptcy had issued; and the commission was legal notice, that wherever mutual debts subsisted between the bankrupt and his creditors, the right of set-off attached. The set-off claimed by the assignees must, therefore, be allowed : and this opinion is given, without admitting any distinction, whether the notes were due or not, before the assignment; but merely upon the ground that the assignment was subsequent to the commission. * APRIL TERM, 1804. [*372 Present—Washington, Justice, and Peters, District Judge. United States v. Thomas Passmore? Perjury.—Repeal of statute. Perjury, under the bankrupt law of 1800, was not indictable, under the act of 80th April 1790, § 18; that section only applies to perjuries committed in judicial proceedings. An indictment cannot be sustained, under a statute which has been repealed, without any saving clause.2 The defendant, who had become bankrupt, was prosecuted by indictment, containing two counts, for perjury, in swearing before the commissioners, on the 20th day of September 1803, that he “ could not tell exactly the time, but believed it was the latter (end) of 1799, that he first owned 1 s. o. 1 W. 0. 0. 84. 2 United States v. Finlay, 1 Abb. U. S. 364; e. c. 3 Pitts. 126; Ex parte Landsberg, 11 Int. R. Rec. 150; United States v. Bennett, 12 Bl. C. 0. 345. And the repeal of a penal statute 4 Dale.—21 puts an end to a pending indictment under it; United States v. Tynen, 11 Wall. 88; Commonwealth v. Duane, 1 Binn. 601; Genkmger v. Commonwealth, 32 Penn. St. 99; Hartung v. People, 22 N. Y. 95. t321 372 UNITED STATES CIRCUIT COURT, [April United States v. Passmore. the brig Abigail. He ceased to own her, he rather thought, in the year 1800,” when, in truth and in fact, he never did own her, but had covered the property for an alien under his name. He had before sworn at the customhouse (on the 31st of July 1799), that he “was the true and only owner of the brig Abigail; that there was no subject nor citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence or otherwise, interested therein, or in the profits or issues thereof but no information, tending to falsify this oath, was received, until a prosecution was barred by the act of limitation. 1 U. S. Stat. 119, § 32. (a) On the 19th of December 1803 (2 Ibid. 248), an act of congress was passed, enacting, “that the act of congress, passed on the 4th day of April 1800, entitled ‘ an act to establish an uniform system of bankruptcy, throughout the United States,’ shall be and the same is hereby repealed : provided, nevertheless, that the repeal of the said act shall in nowise affect the *execution of any J commission of bankruptcy, which may have been issued prior to the passing of this act, but every such commission shall be proceeded on and fully executed, as though this act had not passed.” The facts being laid before the jury, Rawle and Dickerson, made a defence, principally, upon two grounds : 1st. That the defendant was not guilty upon the merits., 2d. That the oath, charged to be false, was taken before the repeal of the bankrupt law; and in consequence of the repeal, could not be the subject of a prosecution, either under the bankrupt la^, under the general penal law, or at common law. (5) On the first ground, they cited 4 Bl. Com. 136 ; 1 Ibid. 60; 1 Hawk. 331 ; 2 Ibid. 84; Cro. Car. 852; Cro. Eliz. 148; 1 Salk. 374; Bank. Law, § 18; 2 Esp. 281; 1 McNall. L. of Ev. 3; 1 Ld. Raym. 396; 1 Hale 706; 2 Salk. 513; 10 Mod. 335; Cro. Jac. 644; 3 Mod. 78; 2 Ld. Raym. 991; 1 Burr. 543; 4 Ibid. 2026; Cowp. 297; Leach C. L. 252, 268; Bank. Law, § 15, 21, 51; 4 vol. Acts Cong. 427, § 88; 3 vol. 337; 2 vol. 30; 2 vol. 21; 4 vol. 102, § 2; 2 vol. 157, 193. And on the second ground, they cited 1 W. Black. 451; 1 Hale 291, 525; 1 Hawk. 306; 4 vol. Acts Cong. 523, 202. Dallas (the district-attorney) submitted to the court three propositions : 1st. That, notwithstanding the repealing act, the perjury charged was indictable, according to the first count of the indictment, under the bankrupt law, as an incident to the execution of the commission. 5 vol. 61, § 21; 6 Bac. Abr. 384, 390; 2 Leach 810; Co. B. L. 7; 5 Geo. IL, c. 30, § 44; 6 vol. 95, § 14; 5 vol. 238; 6 vol. 93; 1 vol. 113, § 32; 2 Hawk. 87, c. 69, § 4; 6 vol. 80, § 5; 3 vol. 163; 6 vol. 58, § 1; 1 vol. 337, § 46; 3 vol. 97; 3 vol. (a) In consequence of this, and other similar cases, occurring at the custom-house, the time allowed for prosecuting offences under the revenue laws, was enlarged. (1 U. S. Stat. 290.) (5) Before the jury was sworn, Ramie said, that although he did not mean to move to quash the indictment, he should propose, under the sanction of the court, that the question of law arising upon the repealing act, should be discussed, as soon as the jury were sworn, and before any evidence was produced. The attorney of the district objected to the novelty of such a proceeding. And by The Court.—The trial must proceed, in the usual course: the evidence and law must both be laid before the jury, who will then give a verdict, under the charge of the court. If the verdict should be against the defendant, his counsel may move the point of law, in arrest of judgment. 322 1804] PENNSYLVANIA DISTRICT. 373 . Willing v. United States. 334; 5 vol. 126; 4 vol. 456; 3 vol. 88; 1 vol. 236; 4 vol. 446, § 112; Ibid. 427; 1 Hawk. 306; Bro. Abr. 203; 1 Hale 291, 525; 2 Ibid. 190. 2d. That the perjury charged, was indictable, according to the second count of the indictment, independent of the bankrupt law, upon the general penal act (1 vol. 108), inasmuch as the provisions of the bankrupt law, do not create the offence; are affirmative and not repugnant: and, with respect to the punishment, are cumulative. Cowp. 297; 2 Hale 705; 4 Burr. 2026; 23 Geo. II., C. 13; *Leach 253; 1 Hawk. 306, B. 1, c. 40, § 5; Leach, 715; 2 Hale r*3^ 191-2. And 3d. That according to the opinions of some of the judges *■ of the supreme court, (a) the perjury charged, was indictable at common law ; and in that case, the conclusion of the indictment, “ against the form of the statute,” was to be regarded as surplusage. 2 Hawk. 83; United States v. Ravara, 2 Dall. 297; Williams* case, 2 Cranch 82, in note; United States v. Worrell, 2 Dall. 384. Washington, Justice, delivered the charge of the court at large, upon the points of law; but cautiously abstained from giving any opinion upon the facts. He considered the repealing act as an absolute bar to the prosecution; and told the jury, expressly, that the defendant was, on that ground alone, independent of any question upon the merits, entitled to an acquittal. On this charge, the jury immediately found a verdict of not guilty. Willing et al., Plaintiffs in error, v. United States. (5) Shi/ppimg.—Registry.—American character. The sale of part of a vessel, by parol, whilst at sea, to an American citizen, and a resale to the vendor, on her arrival in port, and before entry, does not forfeit her American character, nor render her subject to foreign duties; a new register is not necessary. Error from the District Court of Pennsylvania. Upon the record, it appeared, that this was an action upon a bond, dated the 16th of November 1802, given by Willings & Francis and J. Miller, in the penal sum of $15,442, to secure the payment of $7720.41, being the amount of one-half of the duties payable on the cargo of the ship Missouri, on the 16th of May 1803. The defendants pleaded, 1st. That the duties on the goods in question amounted only to $14,036.73, on account of one-half of which ($7018.36) the bond was given. And 2d. Payment. , The plaintiff replied, 1st. That the ship was an American registered vessel, owned by the defendants, when she sailed from Philadelphia for Canton, on the 1st of December 1800 ; that after her departure, she was in part sold to Jacob G. Koch and others, on the 12th of February 1801; that on making the sale, the ship was not registered anew, nor was there any bill of sale executed, reciting her register; that the goods were imported into the port of Philadelphia, subsequent to the sale, on the 16th of Nov- (a) The attorney of the district stated that the last point was made, in deference to the opinion of the court, on the question of a common-law federal jurisdiction, in criminal cases; and not as expressive of his own sentiments upon the subject. (&) s. c. 1 W. 0. 0. 125, which is a better report of the opinion of Washington, J. 323 374 * UNITED1 STATES CIRCUIT COURT,’ [April Willing v. United States. ember 1802 ; that the amount of the duties was $15,440.82, for one-half of which, payable in six months, the bond was given. 2d. Non solverunt. The defendants rejoined, that they admit the sale to Koch and others, and the importation of the goods after such sale ; but they *aver that J the ship was at sea, at the time of the sale, having her register on board, and that it was not, therefore, in the power of the defendants to deliver it up, at the time of the sale ; that on her arrival, the 15th of November, the defendants did execute a bill of sale to Koch and others, reciting the register, and the master delivered up the register to the collector, whereupon, the ship was registered anew, as the joint property of the defendant and Koch and others ; that on the 7th of January 1803, Koch and others resold to the defendants, and executed a bill of sale reciting the register last mentioned; and that, thereupon, the ship was registered anew as the property of the defendants, whereby she continued an American registered vessel, not liable to foreign duties, and that the domestic duties only amounted to $14,036.73, &c. The plaintiffs sur-rejoined, that they admit, the ship was at sea, when she was in part sold to Koch and others; but aver, that she was not registered anew, nor was there a bill of sale, reciting the register, at the time of the sale, nor at the time of her arrival. That they also admit that the master delivered to the collector the register of the ship, at the time of his arrival; but they insist that it was long after she had been in part sold, without being registered anew, &c.; that the registry of the ship, on the 22d of December 1802, in the name of Koch and others and the defendants, was made after the resale by Koch and others to the defendants, when Koch and others had ceased to own any part; and that they admit, that Koch and others, having previously resold, did, on the 24th of January 1803, deliver up the register in their names, and the ship was then registered anew, as the exclusive property of the defendants. But they insist, that at the time of the actual resale by Koch and others (15th November 1801), she was not registered anew, nor did they then execute a bill of sale, reciting the register; that the registry of the 24th of January 1803, was made under color of a bill of sale executed by Koch and others to the defendants, long after the resale, and they had ceased to have any interest in the ship ; and that at the time of the sale in part to Koch and others, of the resale by them to the defendants, of. the arrival of the ship in the port of Philadelphia, and of her entry, she had ceased to be deemed a ship of the United States. The defendants demurred, generally, to the sur-rejoin-der ; and the plaintiffs joined in demurrer. The general question, upon the demurrer, was, whether a registered vessel of the United States, being sold in part, to resident citizens of the United States, while she was at sea, without a bill of sale, reciting the register, and without being then registered anew, was liable, with her cargo, to the payment of foreign, or only to the payment of domestic, tonnage and duties, on her return to a port of the United States ? And the argument *3761 res^ed chiefly upon the terms and meaning of *the 14th section of J the registering act, which is in these words : “ And be it further enacted, that when any ship or vessel, which shall have been registered pursuant to this act, or the act hereby in part repealed, shall, in whole, or in part, be sold or transferredto a citizen or citizens of 824 1804] PENNSYLVANIA DISTRICT. 376 Willing v. United States. the United States , or shall be altered in form or burden by being lengthened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, in every such case, the said ship or vessel shall be registered anew, by her former name, according to the directions herein-before contained (otherwise she shall cease to be deemed a ship or vessel of the United States), and her former certificate of registry shall be delivered up to the collector to whom application for such new registry shall be made, at the time that the same shall be made, to be by him transmitted to the register of the treasury, who shall cause the same to be cancelled. And in every such case of sale or transfer, there shall be some instrument of writing, in the nature of a bill of sale, which shall recite at length the said certificate, otherwise the said ship or vessel shall be incapable of being so registered anew ; and in every case in which a ship or vessel is hereby required to be registered anew, if she shall not be so registered anew, she shall not be entitled to any of the privileges or benefits of a ship or vessel of the United States. And further, if her said former certificate of registry shall not be delivered up, as aforesaid, except where the same may have been destroyed, lost, or unintentionally mislaid, and an oath or affirmation thereof shall have been made as aforesaid, the owner or owners of such ship or vessel shall forfeit and pay the sum of five hundred dollars, to be recovered with costs of suit.” In the district court, judgment was rendered for the United States, (a) (a) Before the decision of the district court, on the principal question, a preliminary point of some importance was determined. By the 65th section of the impost law (4 vol. 386-7), it is provided, that “ where suit shall be instituted on any bond for the recovery of duties due to the United States, it shall be the duty of the court where the same shall be pending, to grant judgment at the return term, upon motion,unless the defendant shall, in open court, the United States attorney being present, make oath or affirmation, that an error has been committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district, prior to the commencement of the return-term aforesaid. Whereupon, if the court be satisfied, that a continuance until the next succeeding term is necessary for the attainment of justice, and not otherwise, a continuance may be granted, until next succeeding term and no longer.” In order to obtain a continuance of the cause, at the return-term, the defendants filed the following affidavit: “Thomas W. Francis, one of the above defendants, being duly sworn, deposeth, that an error has been committed in the liquidation of the duties demanded on the above bond, for which this suit is brought, inasmuch as the sum of $7720.41 is thereby demanded for duties on goods, per the ship Missouri, whereas, the sum of $7018.73 only was due for the same, the said ship, the Missouri, being a registered ship, belonging to citizens of the United States, and not a foreign or unregistered ship, or liable to foreign duties. And the said Thomas W. Francis further deposes, that the above errors have been notified in writing to the collector of the district of Phil idelphia, before the commencement of this present term, being the return-term to which the above action was brought, and that this deponent did, in behalf of himself and the other obligors in the said bond, on the 16th day of May last, tender to the cashier of the bank of the United States, where the said bond was deposited for collection, the last-mentioned sum of money ($7018.73) being, as this deponent verily believes, the whole amount thereon due: that the said cashier of the bank refusing to receive the same, this deponent, in behalf of the aforesaid, tendered the same sum of money to the collector of the district of Philadelphia, on the 17th day of the same month, being as soon 325 ♦377 UNITED STATES CIRCUIT COURT, [April Willing v. United States. ♦The cause was again argued in the circuit court, on the 6th and 7th of May 1804, by Dallas (district-attorney), for the United States, and by Rawle and Lewisfor the plaintiffs in error. *378] *For the United States.—The general question is, whether the as he could ascertain by inquiry that the said bond had been returned from the bank of the United States to the collector. That the said collector also refused to receive the same ; that this deponent afterwards, to wit, on the 7th of July last, did pay to the attorney of the district of Pennsylvania the said sum of $7018.73, say, seven thousand and eighteen dollars and seventy-three cents, on the terms and conditions expressed in a receipt, whereof a copy is hereunto annexed.” Dallas (the district-attorney) insisted, that the cause assigned for a postponement of trial, in the affidavit, was not an error in the liquidation of the duties; for the manifest policy and intent of the law, where to enforce a payment of the revenue, against every plea or pretext, except a plain error in fact; and here, no error in the calculation of figures, no accidental error in the rate of duties, was assigned; but a defence was suggested, upon a principle, which would equally apply to a charge of foreign duties, made in consequence of any other description of forfeiture and disability, under the acts of congress; though the secretary of the treasury was vested with a special power of remission and mitigation in such cases. After argument, however {Rawle and Lewis being for the defendants), the district judge decided, that the cause assigned for a postponement, was within the terms and meaning of the act of congress. The opinion of the court, on the principal question, was afterwards delivered in the (following terms: Peters, District Judge.—This is a suit commenced on a custom-house bond, for one-half the duties due to the United States, by the defendants, Willings & Francis, on goods imported in the ship Missouri, from Canton. The bond is in the usual form, dated the 15th of November 1802; and was given with other bonds for duties, as charged at the custom-house, amounting to $15,440.82 ; being the sum chargeable on goods imported in a ship belonging to a foreigner. For the facts, I refer to the pleadings on file. The real point in dispute is, “ Whether the goods imported in the ship Missouri are liable to foreign or domestic duties ?” There is no doubt, and by the joinder in demurrer it is allowed, that the ship, when the goods were laden, and ever since, did belong to citizens of the United States. And if they had been the same citizens to whom the ship belonged at the time of her clearing out at the American custom-house, before her departure for Canton, only the domestic duties could have been charged. These would have amounted to $14,036.73, causing a difference in favor of the defendants, Willings & Francis, of $1404.09. This sum only is in dispute, at this time, though, it is said, the defendants are affected by the point in controversy, to a considerable amount. But the difficulty is created by a transfer having been made by Willings & Francis, the original owners, to Jacob Gerard Koch and others, also citizens of the United States, of a part of the ship Missouri, while at sea and on her voyage. No bill of sale, reciting the register of the ship, was made, until after her arrival at the port of Philadelphia. A parol sale was made which, though legal, bond fide and effectual, as between the parties, was not so conformable to the law of the United States, as to entitle the vendees to have their names inserted in a new register. Finally (after the sale by parol before mentioned and a resale to the original owners), a bill of sale was given agreeable to law, and the vessel obtained a new register, though the duties remained as at first charged at the custom-house. T. W. Francis, at the time of the entry, disclosed all the circumstances, and the whole proceedings are bond fide and withont fraud, or any improper intention. The amount having been liquidated at the custom-house as for foreign duties, and the bond before mentioned, among others, given for their amount, a suit was commenced in this court thereon. At the return of the writ, the attorney of 326 1804] PENN SYLVANIA DISTRICT. 378 Willing v. United States. cargo of the ship Missouri was liable to the payment of foreign duties, on the 15th of November 1802, when she returned to the *port of Philadelphia. It will be attempted to maintain the affirmative on two *• grounds : 1st. That she had not a register in force. 2d. That she was not then entitled to be registered anew. the district moved for judgment agreeable to the act of congress. The defendants filed an affidavit in legal form, requesting a trial or a continuance, because they alleged there had been an error in the liquidation of the account at the custom-house, owing to foreign, instead of domestic, duties having been charged. On mature consideration, and after diligent and careful examination into the technical meaning of the word “ liquidation,” as explained by the best authorities, both legal and philological, I was of opinion, that the court was bound to comply with the defendant’s request. The authority of the court to give an opportunity for legal investigation, is grounded on the true meaning of this word liquidation, which comprehends the principles, as well as arrangements of accounts. The case has been ably argued on both sides. The whole controversy turns on the 14th section of the act entitled “ an act concerning the registering and recording of ships and vessels,” passed the 81st of December 1792. A very extensive range has been taken by the counsel on both sides of the question. The principles, intent and policy of the act have been investigated with much ability and talent. I do not hesitate to say, that to me this question, on the words of the section, is difficult, though one of the counsel for the defendants seems to consider the case as perfectly clear. I do not give an opinion upon it, with confidence, though my duty requires it, and I must decide. Were I in a situation to say what the law ought, in this case, to have been, I should have a clear conviction, and would, accordingly, decide in favor of the defendants. I should be warranted in this opinion, by the law as it now is. The knotty part of the question, is that affected by the time when, in the 14th section. “ When any ship or vessel, which shall have been registered pursuant to this act, or the act hereby in part repealed, shall, in whole or in part, be sold or transferred to a citizen or citizens of the United States, or shall be altered in form, &c.” On the part of the defendants, it is insisted, that the word when means any time after the arrival of the vessel, at the port where a new register can be legally obtained And according to Lord Coke’s opinion, when one is bound to do an act, but no time fixed, the party has his whole lifetime allowed to perform it. Authorities were produced to show, that in the construction of even penal statutes, the spirit, and intent and policy of the law might be called in aid, where words are doubtful: that it is impossible to procure the new register, until the certificate of registry is delivered up : that this cannot be done, before her return from her voyage; and until it is done, provided it be accomplished before her proceeding on another voyage, she is still to be considered as holding her original character ; and therefore, not subject to the disabilities attached to a foreign ship. That if it were otherwise, the law would be oppressive on our own citizens, although its policy is grounded in a system to serve them, while it prohibited foreign ships from trading, on terms so beneficial as those of our own nation. That if the word “ when ” could not be satisfied, but by a new register, procured at the time of the sale, it would amount to an unjust and burdensome exclusion of all sales to citizens, of our vessels, in whole or in part, while at sea or on their voyages; to the great injury of our commerce, and ruinous embarrassment of our merchants, whose necessities or plans required transfers of their vessels, either to relieve them from pressures, or enable them to form new speculations. That such a rigorous construction might be justifiable, when ships in port were sold or transferred, because their certificates of registry were attainable. But as the law does not compel parties to impossibilities (lex non cogit ad impossibilid), it is otherwise, when ships are at sea. It satisfies the law, if the new register is applied for, when the temporary impracticability is removed. True it is, that foreigners can never obtain new registers, under transfers or sales from Ameri tan citizens. All the precautionary measures of the law are aimed at them. The oath at 327 *380 UNITED STATES CIRCUIT COURT, [April Willing v. United States. *lst. The discussion does not turn upon the fact of American ownership, but upon the legal existence, of an American register. *^811 *^e of file law was to secure to American citizens, the ex- J elusive benefit of American tonnage and navigation. The means employed were directed, to ascertain, first, the fact that the vessel was American built; and secondly, to trace every change of ownership, in whole, or in part. And the means being suited to the object, all theories, all arguments ab inconvenienti, must yield to the positive terms of the law, in this instance, the time of entry must disclose the owners; or foreign character will be presumed. This shows that if the oath is taken, and no foreign ownership appears, it is all the law requires to establish the American character. But the character of the vessel sold by one American citizen to another, was not even suspended, by the clause under consideration, until after her departure from the port whereat she could have obtained a new register, on her arrival from her voyage, during which the sale or transfer was made. It is, therefore, concluded that domestic, and not foreign, duties should have been charged on the goods imported in the ship in question. And that as to the law of the 3d March 1803, it neither has or should have any influence on a precedent transaction: it only fixes the time when a new register must be applied for, which was before uncertain: it also gives power to the secretary of the treasury to remit penalties and forfeitures and remove disabilities, in past as well as future cases. On behalf of the United States, it was contended, that as no time was fixed in the law for renewing the register, it must be done instanter. Where a disability is the consequence, it cannot be removed, until the renewal is completed. If it cannot be done at the moment, owing to impediments not then to be overcome, the party laboring under them must suffer temporary inconveniences, which it was in his power to foresee. In England, where the character of the ship is not altered, an arrangement was made of sending information of the transfer immediately to the custom-house. According to British authorities, though they relate only to the validity of the transfer as between the parties, it is said, 2 East 404, that “ if the act of parliament (dictating this measure) were to be considered as giving an indefinite time (or even a reasonable time, after the execution) for the compliance with its requisites; it would enable a transfer of property to be made to foreigners, who might remain concealed owners, until the return of the vessel to her port, which might not be for a great length of time.” No time being fixed in the 14th section, it must be instanter, A number of extracts from the laws of the United States were produced, to show, that all these laws required the strictest attention to their injunctions, under the severest penalties and forfeitures. That it is not denied that one citizen may sell and transfer to another a ship at sea: but if it is done, the sale is subject to inconveniences on which the parties ought to calculate or take the consequences. The law is or ought to be known to everybody. Those who are shippers of goods should make themselves masters of the subject, both as it relates to sales to citizens and to foreigners, or suffer any inconveniences arising from want of caution. It was asserted, that the fiscal officers had uniformly construed the law as it is now contended for. The congress passing this law meant to exclude sales at sea, to prevent the use of our vessels covertly by foreigners. The register of the Missouri was vacated on the 12th February 1801: she was from that time subject to the disabilities of a foreign ship, until her character was revived: and that could not be done until after the 21st December 1802, when the legal bill of sale was made. No subsequent transaction can, by relation, operate on the duties chargeable, though the character of the ship may be restored. If the foreign character of the vessel existed at the time of the liquidation, no ex post facto proceedings can alter the then existing circumstances. There is no distinction in the law between a sale in port, or one at sea: an immediate application for a new register is required in both cases. If it cannot be had, on a sale at sea, it shows 328 1804] . PENNSYLVANIA DISTRICT. 381 Willing v. United States. as in numerous other instances of forfeiture under the navigation and revenue laws. In order to ascertain the changes or transfers of property, considerations respecting the transfer to an alien, whether the vessel was in port or at sea, on the one hand; and on the other hand, respecting the transfer to a citizen, whether the vessel was in port or at sea, naturally occurred. Now, no American vessel, wherever she may be, if sold to an alien, can be regis-tered anew. In England, a bill of sale to an alien is void, without the consent of three-fourths of the owners, indorsed upon the certificate. In America, there is no such provision ; but still, upon a clandestine sale of a part-owner the law meant to exclude the vessel for the time from her American character : eo in-stanti, that the property is changed, her character ceases or is suspended according as she is sold to a foreigner or a citizen. A number of British cases were produced ; and said to be analogous, though in that country, they related to change of property. In this, the principles apply to change of character. 3 T. R. 406; 3 Bro. Ch. 571; 5 T. R. 710; 2 East 399, 404 ; 1 Bos. & Pul. 483; Parker 215. There is no distinction in the laws of the United States, as they relate to a sale either to a citizen or a foreigner, in the point of time, in which the American character ceases to operate : in both cases, the cessation is at the moment of sale. The citizen may revive it, but the foreigner never can. The law of March 1803, was produced to show a legislative construction. And the custom of the fiscal officers was said to be a contemporaneous and continued interpretation. Although I may not have done justice to the arguments of the counsel on either side, I have thought it proper to recite them in a summary way, to show the conflict of opinion, on the subject. For myself, I declare, that, although the interpretation given on the part of the United States, is not consistent with my ideas of what the law should have been, I do not see that I am authorized judicially to pronounce that it was not, as on the part of the United States, it is contended to have been, at the time of the transaction, which is the subject of discussion. It appears to me, that the congress enacting the law of 1792, in their zeal to exclude foreigners, did not see, or chose to think lightly of, the inconveniences to which, in such cases as the one now before me, they subjected our own citizens. It also seems to me, a case omitted, either accidentally or with design. The legislature alone were competent to remedy the defect: and they have done this, in cases occurring after their act of March 1803. In the department in which I am placed, I am not competent to give relief; or by interpretations of supposed spirit and intention, supply omissions, or add to the provisions of the then existing law. In cases attended with such unmerited penalties, it is consolatory, that the laws of our country have not left the parties without protection. The congress of 1803, sensible of the hardships consequent on a rigid construction of the former law, have specially and clearly authorized the secretary of the treasury to remit “ any foreign duties, which shall have been incurred,” by reason of disabilities, happening under the former laws, recited in the act of March 1803. There is no doubt in my mind, that this (the foreign duties having been incurred under the former laws, by a temporary disability and incapacity to obtain a new register) is a case proper for the deliberation of the officer vested with the powei* of mitigating or dispensing with the severity of fiscal laws. He may (if he so inclines, under the circumstances stated to him) give the relief which the austerity of judicial duty disables a court from affording. Although this is my view of the subject, I think it a hard case, and that it ought not to rest on my opinion. I shall deem myself bound to give every facility to an appeal. If other cases, depending on the same point, occur, I shall, on payment of the undisputed part of the demand, suspend judgment (or grant it on terms) for the contested sums, until the opinion of a superior court can be had; if the parties affected shall choose to take that course. Let judgment be entered for the sum now due to the United-States. I understand, that the domestic duties in part of the bond have been paid. \ 329 381 UNITED STATES CIRCUIT COURT, [April Willing v. United States. the innocent owners are protected to the amount of their interest in the vessel. 4 vol. Acts Cong. 11; Abbot, 45; 13 Geo. III., c. 26; 2 vol. Acts Cong, p. 131, § 16, 17, 7; Abbot, 30; 26 Geo. III., c. 60, § 15. Again, an American vessel, if sold even to a citizen, must, upon every sale, in whole or in part, be registered anew; the old register must be surrendered ; the bill of sale must be in writing, containing a recital of the register ; and on every entry at a port of the United States, the mesne transfers must be disclosed. 2 vol. p. 131, § 14, 17. In England, a distinct provision is made for cases, in which vessels are sold, when in port; and for cases, in which they are sold, while at sea. For the former, it is required, that an indorsement shall be made on the register ; or that the vessel be registered anew, at the option of the remaining owners, without which the sale is void. (7 <0 8 Wm. III., c. 22, § 21; 34 Geo. Ill, c. 68, § 15, 21.) And for the latter, it is required, in order to render the sale valid, that the bill of sale shall recite the register ; that a copy of the bill of sale be delivered to the commissioners ; that notice of the transfer be given at the ship’s port; and that the indorsement be made on the register, when the ship returns. (Ibid.) But in America, the only provision in the case of a sale of a vessel at sea is contained in the 14th section of the law (2 vol. p. 131); while the sale of a vessel in port is anxiously guarded, as well by that section, as by the 14th, 11th and 12th sections. The registering bond does not embrace the case of a sale, while the vessel is at sea ; the 17th section only requires a disclosure of the fact, without declaring any consequence ; and in short, it is only in the 14th section, that any provision is made for a formal bill of sale, for a surrender of the old register, or for the taking out of a new one. And yet, the policy which prescribes such guards against unlawful transfers, while a vessel is in port, operates more forcibly in the *cases of a transfer, while a vessel is at sea. The J legislative jealousy of sales abroad, is manifested, indeed, by the provision, which disqualifies citizens, resident in foreign countries (with a few exceptions) from being holders of American registered vessels. (2 vol. 132, § 2, 134, § 4.) Then, if the policy of the law is general, so are the words of the 14th section of the act, embracing every sale of a vessel, in whole or in part, at home or abroad ; and to preserve the American privileges of the vessel, the requisites of the section are, a new register on the sale, a surrender of the old register, and a bill of sale, reciting the register. On the sale of the Missouri, to Koch and his associates, her old register ceased to be in force. A new one might be obtained, provided, at the time of applying for it, the old one was surrendered, and a bill of sale, in due form, was produced : but after vacating the old register by a sale, the ship ceased to be privileged, until a new register was obtained. A formal bill of sale is a sine qua non, in every case ; and emphatically, it is necessary in the case of a sale, while a vessel is at sea, as the act of congress provides no other guard against an unlawful transfer. Besides, why should the 17th section merely require, upon the entry of a vessel from abroad, a disclosure of the fact, whether there has been any antecedent change of ownership, if it was not to bring the case within the provisions of the 14th section of the act? And if a vessel sold at home, is subject to the rigor of all the regulations of the 14th section, on what principle can a vessel sold abroad pretend to an exemption ? Is it not more within the policy, spirit and language of the law, to say, that the vessel Bold abroad, shall, like the vessel sold at home, lose her privilege upon the 330 1804] PENNSYLVANIA DISTRICT. 882 Willing v. United States. sale ; and as the danger of unlawful sales is greater abroad than at home, she shall remain unprivileged, until the actual renewal of her register ? In illustration of the argument on this point, the following authorities were cited : 3 T. R. 406; 3 Bro. Ch. 571; s. c. 5 T. R. 710; 7 Ibid. 306; 2 East 399; 1 Bos. & Pul. 483. 2d. Nor was the Missouri even entitled to be registered anew, at the time of her return to the port of Philadelphia. There did not then exist a bill of sale, reciting the register ; and the recital might as easily be made from the record at the custom-house, as from the certificate of registry carried with the vessel. The construction now contended for, has uniformly prevailed in the treasury department; and contemporaneous construction ought to be regarded in deaiding upon a doubtful law. (Park. 215.) Legislative construction is also in favor of the United States, for the very case of a vessel sold while at sea, has been specially introduced into the system (6 vol. 223, § 3); the power to remit the foreign duties incurred by such sale has been vested in the secretary of the treasury ; and legislative construction of a legislative act, where the words are doubtful, ought to be conclusive. (Parker 217.) *For Willings & Francis.—In the present case, there is no sug- r*q8o gestion of alien ownership, or mala fides of any kind. The meaning ‘-of the legislature should, therefore, be perfectly clear, before a decision inflicting, in effect, a heavy penalty, on the plaintiffs in error, is pronounced. The general policy of the law is, to give an advantage to the American citizen ; and if its language is at all obscure, he is entitled to the most beneficial interpretation. In this view of the controversy, the recapitulation of a few plain rules, will lead to a favorable result. 1st. A vessel can have but one register, at the same time. 2d. The certificate of the registry is delivered to the master of the vessel, when he leaves the port, and must be deposited at the custom-house upon his return. 3d. The register remains in force, until it has been legally vacated or cancelled. 4th. On a change of property, whether in whole or in part, a new register must be taken out; but no new register can be granted, until the old one is surrendered. 5th. The execution of a bill of sale, reciting the register, will not authorize the granting of a new register, without such surrender of the old one ; but both must concur for that purpose. In no part of the law, is a particular time prescribed, either for the execution of a bill of sale, or for the application for a new register. The 14th section amounts to nothing more than a declaration, that a vessel, which has been sold, in whole or in part, shall not enjoy the American privileges, until she is registered anew ; but the word “ when ” is not used as an adverb of time ; nor does the section require, that the vessel shall be registered anew, at the moment of the transfer. If, therefore, the bill of sale is executed, and the old register surrendered, when an application is first made for the enjoyment of American privileges, the words and policy of the law are satisfied ; nor will the court go beyond the words of a law, to create a forfeiture. (1 Bos. & Pul. 483 ; 19 Vin. Abr. 512, pl. 8, 9 ; 3 T. R. 401; 2 East 399.) The 17th section of the act, however, seems to fix the sense of the legislature ; for it obviously contemplates the disclosure of a transfer, while 831 383 UNITED STATES CIRCUIT COURT, [April Willing v. United States. the vessel was at sea ; and if the oath which it prescribes, is truly taken, there is no forfeiture of her American character. The doctrine contenled for, on behalf of the United States, would introduce the greatest mischiefs. Could congress mean (in an act, too, for the benefit of American tonnage and navigation), so to tie up the property in ships, that, while they are at sea, they could not be sold, without incurring a forfeiture of their privileges ? And is it consistent with justice and reason, that the innocent shippers of a cargo on board an American vessel, should be taxed with the payment of foreign duties, in consequence of successive transfers, to which they were neither parties nor privies ? To these inconveniences, the claim of foreign duties, in this case, adds the reproach, that congress has required *an impossibility ; to wit, the immediate -1 surrender of the register at the custom-house, while, in fact, it was on board of the vessel, at sea. As to a contemporary construction, it is not clearly and uniformly shown, in favor of the adverse doctrine ; nor, if it were, could it prevail against the plain words and obvious meaning of the law. And as to a supposed legislative construction of the act of the 2d of March 1803 (6 vol. 223, § 3, 4), the act is merely affirmative ; and even if it were declaratory of the legislative opinion, upon the previous state of the law, it could not be binding upon the judges, who must exercise their own judgments upon the law itself, independent of legislative exposition. Washington, Justice.—Although the pleadings, in this case, are lengthy, it has been agreed by both parties, that the only question to be considered and decided, upon the whole record, is, whether the cargo imported in the ship Missouri, is subject to the payment of foreign or of domestic, duties ? By the first section of the “ act concerning the registering and recording of ships or vessels,” passed on the 31st of December 1792, it was provided, that all vessels, registered pursuant to that law, should be denominated and deemed vessels of the United States : and all vessels of the United States, are entitled, by law, to certain benefits and privileges denied to foreign vessels ; so long as they shall continue to be wholly owned, and to be commanded, by a citizen or citizens of the United States. The ship Missouri was a duly registered vessel of the United States, and has always continued to be owned and commanded by citizens. She was, therefore, entitled to the benefits and privileges of her American character, when she arrived at the port of Philadelphia, in November 1802 ; unless the partial sale made to American citizens, while she was at sea, deprived her of that character. Whether the transaction referred to, produced such an effect, may, I think, be decided upon a joint consideration of the fourteenth and first sections of the registering act alone; though other sections will afford fair ground for reasoning and illustration. The 14th section is composed of several sentences, which must be distinctly, as well as collectively, considered, to ascertain the general meaning and result. The first sentence declares, that when a registered vessel is sold to a citizen, she shall be registered anew, by her former name, or she shall cease to be deemed a vessel of the United States, and that her former register shall be delivered up, at the time of applying for a new one. The second sentence leclares, that in every such case of sale or transfer, there 332 1804] PENNSYLVANIA DISTRICT. 384 Willing v. United States. shall be a bill of sale, reciting, at length, the certificate of registry, otherwise the vessel shall be incapable of being registered anew. And the third sentence declares, generally, *that in every case, in which a ves-sei is required to be registered anew, she shall not be entitled to the *-privileges of a vessel of the United States, if she is not so registered. It is difficult to conjecture, why, in the first sentence, the want of a new register should be declared, within a parenthesis, to deprive a vessel of her American character ; and that, in the third sentence, the same effect should be again declared, for the same cause. The latter declaration, however, is obviously, tautology: for if the former declaration can be said to have destroyed the privilege, eo instanti, when the sale was effected; it was useless and superflous to repeat, that the vessel should not, at any subsequent period, be entitled to enjoy it. The clear meaning, however, of both sentences, appears to be, that the vessel should lose her American privileges, not simply upon the sale, but upon the neglect to obtain a new registry, after the sale. It is here, then, material to inquire, in what manner, and on what terms, a new registry can be obtained ? A bill of sale, reciting the old certificate of registry, must be produced to the collector. The old certificate of registry must also be surrendered. Now, though a bill of sale might be formally executed, in the absence of the ship ; yet, the .ship is bound, by law, to carry the certificate of her registry with her ; and consequently, it is impossible for her owner to surrender that instrument to the collector, while she is herself at sea. If, however, the surrender of the certificate must be made, or the privilege must be lost, it is manifest, that the law either requires the performance of an impossibility (which is not hastily to be imputed to the expression, and never to the intention of a law), or it prohibits, in effect, the sale of a ship, at sea, by one of our citizens to another. There is no part of our navigation system, that expressly avows this to be the intention of the legislature ; and from what principle of public policy can it be inferred or presumed ? The cargo is not liable to the claim of foreign duties, until an actual sale of the ship ; and why should the owner of the cargo lose his privilege, on account of the sale, which is an act of the owner of the ship alone ? Or be punished as for a fault, on account of the neglect of the owner of the ship to take out a new register ; an omission which the owner of the cargo can neither prevent nor supply ? Even, however, with respect to the ship, why, I repeat, should the privilege be lost, and her owner punished as for a fault, in omitting to deliver an instrument to the collector, on shore, which the law directs to be kept on board her, at sea ? A consequence more injurious would not proceed from a sale to an alien ; and yet, in the case of a sale to an alien, the act of congress declares the forfeiture of the American privilege in express words ; as being incurred, eo instanti, on the sale ; but no such declaration is made, in the case of a sale to a citizen. *It appears to me, that the fourth sentence of the 14th section of the act is also important; for it declares, that " if the former certiti- L cate of registry shall not be delivered up as aforesaid, the owner or owners of the ship or vessel, shall forfeit and pay the sum of $500 And thus, if the construction contended for by the attorney of the United States is correct, the law not only prohibits the sale of a vessel at sea, by one citizen to another, on pain of forfeiting, at the moment of sale, the privileges of 883 ~ 386 UNITED STATES CIRCUIT COURT, [Oct Hurst’s Case. the vessel; but subjects the owner to a penalty, although it is physically impossible, that he should do the thing, for the omission of which he is to be punished. But an American vessel does not cease to be entitled to her privilege, any more by the act of sale, than by the act of altering her form or burden ; both cases being embraced by the provisions of the 14th section. Let us suppose, therefore, that the construction of the vessel should be altered, either in the port to which she belongs, or in any other port: would she lose her privilege, before the owners could have an opportunity to apply for a new registry ? And if not, why should the privileges be lost, before an opportunity occurs to make the application for a new registry, in the case of a sale ? I can perceive no reason for a distinction. As to the provisions of the 17th section, they are designed to compel a discovery of any transfers of a vessel, which may have been made, during her absence from the port; in order that it might appear, whether she continued to be a privileged vessel of the United States. If it appeared, that she had been transferred to a foreigner, her privileges were forfeited, from the moment of transfer ; and if it appeared, that she had been sold to a citizen, the officers of the customs were enabled, by a knowledge of the fact, to exact the foreign duties, in future, should no application be made for a new registry. I am, upon the whole, of opinion, that the appellants are not liable for higher duties, than are payable by vessels of the United States ; and consequently, the judgment of the district court must be reversed. Judgment reversed, (a) *387] *OCTOBER TERM, 1804. Present—Washington, Justice, and Petebs, District Judge. Hubst’s Case. (5) Privilege of suitor. A citizen of another state, who, when in attendance on court as a suitor, has been subpoenaed as a witness in another case, is privileged from an arrest in execution, issuing from a state court, while at his lodgings; and the sheriff will be indemnified, by an order of discharge of a court of competent jurisdiction. On the affidavit of Timothy Hurst, it appeared that he had come from his residence at New York, to attend the trial of Hurst n. Hurst (in which he was a party), at the present term ; that after his arrival, he had been subpoenaed as a witness, in the case of IK Hurst v. Rodney, which was also upon the trial-list ; that yesterday (the 13th of November), while he was at his lodgings, in Hardy’s tavern, he had been arrested by the sheriff, upon a ca. sa. issuing from the supreme court of Pennsylvania; and that he had come to Philadelphia, and was remaining here, at the time of the arrest, only upon the business of his suit, and in obedience to the subpoena. ¿a) This judgment was affirmed by the supreme court, in 4 Or. 48, (&) s. c. 1 W. 0. C. 186. 334 1804] PENNSYLVANIA DISTRICT. 387 Hurst’s Case. Ingersoll, upon these facts, moved that Hurst should be discharged from the custody of the sheriff. And he argued, in support of the motion : 1st. That the application was properly addressed to this court, and not to the supreme court. 2d. That a discharge from the ca. sa., by order of the court, without the consent or concurrence of the plaintiff, would not operate as a satisfaction of the debt; and another execution might afterwards be taken out. 3d. That the discharge by a competent court, would excuse and protect the sheriff, in an action for an escape. Barnes 2 ; Ld. Raym. 1524 ; Bac. Abr. 631; 5 T. R. 686 ; 5 Bac. Abr. 617, 673 ; 1 H. Bl. 636 ; Tidd Pr. 61; 2 Str. 990 ; 1 Dall. 356 ;(a) 3 Ibid. 478 ; Dyer 60.(6) JRawle, in opposition to the discharge, insisted, that under the circumstances of this case, Hurst was neither privileged as a witness, nor as a party. 1st. Not as a witness : the arrest was made at the lodgings of the defendant; but although a witness is privileged, while he is going from home, while he is actually attending the court, and while he is returning to his home ; he is not privileged while he is at home. 2d. Not as a party : if the privilege of a party is not limited to the same times and places, as the privilege of a witness, its extent is indefinite, and its operation unequal. Is a suitor in this court, residing in Georgia, protected from arrest, as soon as he receives the notice of trial, in his own state, and in every state through which he passes on his journey to Philadelphia ? Again, is every resident citizen of Philadelphia, who has a suit depending, privileged during the trial term, not only while actually attending the court, but while at home, with his family ? And if not, why should a non-resident suitor be protected at his lodgings, which are his home ? There is, indeed, a distinction between the cases, favorable to the witness; for a witness is under an absolute obligation to attend the court; but a party may prosecute his suit by an attorney, without personal attendance. Besides, the sheriff will be bound to show a regular discharge, in an action for an escape ; and if the supreme court should adhere to the rule in Starretts case, the order of this court will not be a justification. 1 Brownl. 15 ; Barn. 200 ; 5 T. R. 686 ; 2 Cha. Ca. 69 ; T. Raym. 100 ; 2 Ld. Raym. 1524 ; 6 Com. Dig. 89, 88 ; Wood’s Inst. 478 ; 2 Bro. Abr. 159, tit. Priv., pl. 37. Washington, Justice.—I will not examine the powers of the supreme court of the state, upon the present occasion. It is enough, to ascertain that the power of this court is competent to the object proposed. If, indeed, any injury would be done either to the plaintiff in the suit, or to the sheriff (both of whom have acted innocently, and without knowledge of the facts, on which the claim of privilege arises), by our interposition, we might be induced to pause upon the subject. But, as to the plaintiff, it is clear, that he may renew his execution, whenever the privilege ceases : and as to the sheriff, the order of a court of competent jurisdiction, touching the subject- (a) It was admitted by the counsel, on both sides, that the authority of Starret’s case, had been often doubted, both on the bench and at the bar, though never expressly overruled.1 (6) See also, 1 Dall. 357 note. 1 But see the opinion of Yeates, J., in Hannum v. Askew, 1 Yeates 25. 335 388 UNITED STATES CIRCUIT COURT, [Oct. Walker v. Smith. matter, must be a conclusive justification in every other court, acting upon sound principles of law and justice. To decide the principal question, therefore, I find it necessary to go no *qqq-] further than to state, that I think the witness was, in *this case, priv- J ileged, while he was at his lodgings. The subpoena was in force; and the arrest of the witness, at that place, has all the effects which could be produced by an arrest in the streets while coming to or going from the court. Peters, Justice.—I concur in the sentiments that have been expressed by the presiding judge; and add, as my separate opinion, that the party is entitled to be discharged, upon both the grounds of privilege. A special order of discharge was, accordingly, made and filed, at the instance of Dallas, who appeared for the sheriff. Walker et al. v. Smith. Factor.—Damages. One who accepts a consignment, is liable in damages for a breach of instructions, though his services were rendered gratuitously. Where there is a legal measure of damages, the jury are bound by it, though the action sound in tort. Case. On the trial of this cause, the following facts appeared: The plaintiffs were merchants of London ; and in March 1796, shipped and consigned to the defendant certain goods, invoiced at 2707. 14 s. 8(7. sterling, accompanied with a letter, stating that “ these goods were shipped by order of Mr. J. B., and for his account; and he was to remit us the amount, on his arrival at Philadelphia: but since they were shipped, some circumstances have occurred, which have created some doubts in our minds, respecting his solidity ; and by the advice of our friends, we have adopted this method to secure ourselves, through your friendly assistance, which we request on this occasion. As we do not want to deprive B. of the benefits to be derived from the sale of these goods, we wish you to hold them at his disposal, but not to deliver them to him, without being paid for the amount, or having such security given you therefor, as is satisfactory to yourself. Should he not be able to effect either of these, in a reasonable time, we would wish you to dispose of them for our account, and remit us the amount in good bills.” The defendant duly received the goods, but delivered them over to B., without receiving payment, or exacting security; and shortly afterwards, B. failed. The defendant, however, representing other creditors of B., as well as the plaintiffs, made a composition, by which he received for the proportion of the plaintiffs, 1517. 16s. sterling, and remitted that sum to them, without charging commissions, in a letter dated the 11th of December 1800. The plaintiffs refused to ratify the composition, and brought the present suit to recover the invoice value of the goods, with interest, according to the usage of trade. On the trial, Ingersoll assumed three grounds of defence : 1st. That there was no cause of action; as the defendant had accepted the consign- 336 1804] PENNSYLVANIA DISTRICT. Walker v. Smith. 389 ment, on principles of mere courtesy, without interest, directly or indirectly; and had exercised a fair and impartial discretion, for the equal inter- r*qOn est of all the creditors of B. 2d. That even if the action could be maintained, it is a case, in which the jury are at liberty to give less by way of damages than the amount of the loss actually proved. (1 Dall. 180; 2 Wils. 328; 2 Bac. Abr. 266; Bull. N. P. 156; 1 Esp. N. P. 179.) 3d. That the defendant, acting as a general consignee, may be considered as selling the goods to B., and, consequently, is not liable to his principal, for more than he actually received. (Willes 407.) For the plaintiffs, J. Sergeant and Dallas contended : 1st. That although the defendant was not obliged to accept the consignment, yet, if he did accept it, he was answerable, like every other agent or factor, for a breach of the positive orders of his principal. (1 Beawes L. M. 44, 46; Moll. 493, 497; 4 Com. Dig. 227-8; 2 Cha. Cases 57; 4 Rob. 218; 1 Marsh. 206-7,209, 210.) 2d. That although the jury had a great and useful latitude in cases of tort, and mixed cases of negligence and tort, where no precise standard of damages was established ; the legal discretion of a jury could indulge in no capricious or conjectural estimate, in cases of contract, express or implied, where a mere calculation of figures furnishes a certain and uniform standard of right. (2 W. Bl. 942 ; 4 T. R. 654-5 ; 5 Ibid. 255 ; Barnes 455, 448; 1 Str. 425.) 3d. That on these principles, the defendant was liable for the debt, as if he were a purchaser of the goods; and every purchaser is chargeable with interest, after the usual term of credit is expired. (1 Dall. 265 ; Doug. 361 ; 2 Bos. & Pul. 337 ; Crawford n. Willing, ante, p. 286.) The Court, in their charge to the jury, (a) expressly declared an opinion, that, on the evidence, the plaintiffs were entitled to recover the full amount of the original debt, with such reasonable compensation for the delay of payment, as the jury should think proper. (5) The jury, however, gave a verdict ^for only $468.44, which was the amount of the plaintiffs’ demand (after crediting the remittance), estimating the sterling money at par, allowing the defendant a commission, and deducting the interest. The jury added, that the plaintiffs should pay the costs.(c) *The plaintiffs' counsel then moved for a new trial, because the r*qQ1 verdict was against law, evidence and the charge of the court : but (a) For a full report of the charge of Washington, J., see 1 W. C. 0. 153. Qi) It appears by the record, that the action was brought to October Sessions 1801, and that the declaration was in assumpsit, with the following counts, two in indebitatus assumpsit, for goods sold and delivered and for money had and received, and one quantum valebant. (c) The finding of the jury, that the plaintiffs should pay the costs, was, at once, abandoned by the defendant’s counsel, on general principles; but Ingersoll stated, that the first judicial law provided, that the plaintiff should not be allowed costs, if he -ecovered a sum less than $500 (6 vol. 16, §3; 1 vol. 61, § 20); and that although the action was instituted, when the sum required, in that respect, was only $400 ; yet he referred to a decision of Judge Chase, in the circuit court of Delaware, which pronounced, that the act repealing the latter provision, revived the former, and was to be applied to all suits, present or future. Dallas referred, however, to the acts of congress (5 vol. 237, § 11; 6 vol. 16, § 4). And the court declared that the plaintiffs were clearly entitled to costs. 4 Dall.—22 337 391 * UNITED STATES CIRCUIT COURT, [April Huidekoper v. Douglass. after argument, the motion was overruled ; and it was observed by Washington, Justice, that although he was not satisfied with the verdict, nor should he have assented to it as a juror ; yet, the question of damages, or of interest in the nature of damages, belonged so peculiarly to the jury, that he could not allow himself to invade their province ; while he felt a determination to prevent on their part, any invasion of the judicial province of the court, (a) *392] *APRIL TERM, 1805. Present—Washington, Justice, and Peters, District Judge. Huidekoper’s Lessee v. Douglass. (5) Warrantee. —Settlement. A grantee by warrant, of lands lying north and west of the Ohio, &c., who was prevented from making such settlement as the law requires, for the space of two years from the- date of his warrant, but who, during that period, persisted in his endeavors to make the settlement, although he afterwards made no such attempt, is entitled to hold his land in fee-simple: it is not every slight or temporary danger, which will excuse him, but such as a prudent man ought to regard.1 This was an ejectment brought for a tract of land, lying north and west of the rivers Ohio and Allegheny and Conewango creek. The lessor of the plaintiff made title under the Holland Company, to whom a patent was issued, upon a warrant and survey. The defendant claimed as an actual settler, under the act of the 3d of April 1792. A great many ejectments were depending upon the same facts and principles ; (c) and on the trial of another ejectment, at a former term, Washington, Justice, had delivered a charge to the jury, coinciding, generally, with the construction given by the supreme court of Pennsylvania, to the act of April 1792, from which Judge Peters dissented. It was, therefore, upon the recommendation of the court, determined to submit the questions, upon which the opinions of the judges were opposed, to the supreme court of the United States, under the provision made, in case of such a disagreement, by the act of the 29th of April 1802. (2 U. S. Stat. 159, §) 6. The questions were, accordingly, stated, at the last October term, in the following form : “ 1st. Whether, under the act of the legislature of Pennsylvania, passed on the 3d day of April 1792, entitled ‘ an act for the sale of the vacant lands within this commonwealth,’ the grantee by warrant of a tract of land lying ‘ north and *3931 we8^ *rivers Ohio and Allegheny and Conewango creek,’ who, J by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from (a) For the report of the case, on the motion for a new trial, see 1 W. C. C. 202. (5) s. c. 1 W. 0. 0. 253. (c) For a general view of this important controversy, see Commonwealth v. Coxe, ante, p. 170; Attorney General ®. The Grantees, ante, p. 237; and Balfour’s Lessee v. Meade, ante, p. 363. 1 See note to Commonwealth v. Coxe, ante, p. 237. 338 1805] PENNSYLVANIA DISTRICT. 393 Huidekoper v. Douglass. the 10th day of Api’il 1793, the date of the said warrant, until the 1st day of January 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee. 44 2d. Whether a warrant for a tract of land, lying north and west of the Ohio and Allegheny and Conewango creek, granted in the year 1793, under and by virtue of the act of the legislature of Pennsylvania, entitled 4 An act for the sale of vacant lands, within this commonwealth ’ to a person, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the date of the said warrant, until the first day of January 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, vests any, and if any, what title in or to the said land, unless the said grantee shall, after the said prevention ceases, commence, and within the space of two years thereafter, clear, fence and cultivate, at least two acres contained in his said survey, erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon, for th« space of five years next following his first settling the same, the said grantee being yet in full life. 44 3d. Whether a grantee in such warrant as aforesaid, who has failed to make such settlement as the enacting clause of the said ninth section requires, and who is not within the benefit of the proviso, has thereby forfeited his right and title to the said land, until the commonwealth has taken advantage of the said forfeiture, so as to prevent the said grantee from recovering the possession of said land in ejectment, against a person who, at any time after two years from the time the prevention ceased, or at any subsequent period, has settled and improved the said land and has ever since been in possession of the same.” The questions were argued in the supreme court, at February term 1805, by E. Tilghman, Ingersoll, Lewis and Dallas, for the plaintiff; and by McKean (attorney-general of Pennsylvania) and IK Tilghman, for the defendant, (a) The opinion of the court was delivered by the Chief Justice, in the following manner. Marshall, Chief Justice.—The questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by *the legislature of that state, entitled 44 An Act for the sale of the vacant lands within this com- L monwealth.” The ninth section of that act, on which the case principally depends, is in these words : 44 And be it further enacted by the authority aforesaid, that no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, within the space of two years next after the date of the same, (a) For a report of the case, before the supreme court, see 3 Or. 1. 339 394 UNITED STATES CIRCUIT COURT. [April Huidekoper v. Douglass. make or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing or causing a family to reside thereon, for the space of five years next following his first settling the same, if he or she shall so long live ; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so as often as default shall be made, for the time and in the manner aforesaid ; which new grants shall be under and subject to all and every the regulations contained in this act. Provided always, nevertheless, that if any such actual settler, or any grantee in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement, as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” The questions to be considered, relate particularly to the proviso of this section ; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein, shall vest in him. Two classes of purchasers are contemplated. The one has already performed every condition of the sale, and is about to pay the consideration-jnoney ; the other pays the consideration-money in the first instance, and is, afterwards to perform the conditions. They are both described in the same sentence, and from each, an actual settlement is required, as indispensable to the completion of the title. In describing this actual settlement, it is declared, that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, “ by clearing, fencing *„0-1 and cultivating at least *two acres contained in one survey, erecting J thereon a messuage for the habitation of man, and residing or cause ing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live.” The manifest impossibility of completing a residence of five years within the space of two years, would lead to an opinion, that the part of the description relative to residence, applied to those only who had performed the condition, before the payment of the purchase-money, and not to those who were to perform it afterwards. But there are subsequent parts of the act, which will not admit of this construction, and consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement. The law requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language, to be rendered intelligible. This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is, by changing the participle, into the future tense of the verb, and instead of “ and residing or . 340 1805] PENNSYLVANIA DISTRICT. 395 Huidekoper v. Douglass. causing a family to reside thereon,” reading, and shall reside, &c. The effect of this correction of language, will be to destroy the repugnancy which exists in the act, as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that, ii the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition ; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement. This construction is the more necessary, because the very words “ such actual settlement and residence,” which prove that residence is required from the warrantee, prove also, that settlement and residence are, in contemplation of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a settlement, no more requires a residence of five than a residence of five hundred years: and of consequence, it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement. The meaning of the terms, settlement and residence, being understood, the court will proceed to consider the proviso. That part of the act treats of an actual settler, under which term is intended as well the person q who makes his settlement the foundation of his claim to a warrant, as *-a warrantee, who had made an actual settlement, in performance of the conditions annexed to his purchase, and if “ any grantee in any such original or succeeding warrant,” who must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced are brought together in the same, sentence, and terms are used appropriated to the situation of each, but not applicable to both. Thus the idea of “ an actual settler,” “ prevented from making an actual settlement,” and, after “ being driven therefrom,” “ persisting in his endeavors” to make it, would be absurd. To apply to each class of purchasers all parts of the proviso, would involve a contradiction in terms. Under such circumstances, the plain and natural mode of construing the act, is to apply the provisions, distributively, to the description of persons to whom they are adapted, raddenda singula singulis. The proviso, then, would read thus, “ Provided always, nevertheless, that if any such actual settler, shall be driven from his settlement, by force of arms of the enemies of the United States ; or any grantee, in any such original or succeeding warrant, shall by force of arms of the enemies of the United States* be prevented from making such actual settlement, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” The two cases are the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavors to make one. It is perfectly clear, that in each case, the proviso substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence, to continue five years, from the commencement of the settlement, both of which were required in the enacting clause. What is that something ? The proviso answers, that in case of “ an actual settler,” it is his being “ driven from his settlement, by force of arms of the 341 396 UNITED STATES CIRCUIT COURT, [April Huidekoper v. Douglass. enemies of the United States,” and in case of his being a grantee of a warrant, not having settled, it is “ persisting in his endeavors to make such actual settlement.” In neither case, is residence, or persisting in his endeavors at residence, required. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence they say, that the person who comes within the proviso, shall hold the land “ as if the actual settlement had been made and continued.” It is contended on the part of the defendant, that as the time during *3971 which persistence shall continue, is not prescribed, the person *claim- J ing the land, must persist, until he shall have effected both his settlement and residence, as required by the enacting clause of the act: that is, that the proviso dispenses with the time, and only with the time, during which the condition is to be performed. But the words are not only inapt for the expression of such an intent; they absolutely contradict it. If the proviso be read, so as to be intelligible, it requires nothing from the actual settler who has been driven from his settlement; he is not to persist in his endeavors at residence, or in other words, to continue his settlement, but is to hold the land. From the warrantee, who has been prevented from making a settlement, no endeavors at residence are required : he is to “ persist in his endeavors,” not to make and to continue such actual settlement, but “ to make such actual settlement as aforesaid.” And if he does persist in those endeavors, he is to hold the land, “ as if the actual settlement had been made and continued.” The construction of the defendant would make the legislature say, in substance, that if the warrantee shall persist in endeavoring to accomplish a particular object, until he does accomplish it, he should hold the land, as if he had accomplished it. But independent of the improbability that the intention to dispense only with the time, in which the condition was to be performed, would be expressed in the language which has been noticed, there are terms used, which seem to restrict the time during which a persistence in endeavors is required. The warrantee is to persist in his endeavors “ to make such actual settlement as aforesaid now, “ such actual settlement as aforesaid ” is an actual settlement, within two years from the date of the warrant, and as it could only be made within two years, a persistence in endeavoring to make it, could only continue for that time. If, after being prevented from making an actual settlement, and persisting in endeavors, those endeavors should be successful, within the two years ; after which the person should be driven off, it is asked, what would be his situation ? The answer is a plain one. By persisting, he has become an actual settler ; and the part of the proviso which applies to actual settlers protects him. If, after the two years, he should be driven off, he is still protected. The application of external violence dispenses with residence. The court feels itself bound to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause ; and of that substitute residence forms no part. In a great variety of forms, and with great strength, it has been argued, that the settlement of the country was the great object of the act; and that 342. 1805] PENNSYLVANIA DISTRICT. *398 Huidekoper v. Douglass. the construction of the plaintiff would defeat that object. *That the exclusive object of an act to give lands to settlers, would be the settlement of the country, will be admitted; but that an act to sell lands to settlers, must have for its exclusive object the settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far the two objects might be consulted, or how far the one yielded to the other, is only to be inferred from the words in which the legislative intention has been expressed. How far the legislature may have supposed the peopling of the district in question to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words dispensing with residence, it is not for the court to say, they could not in tend it, unless there were concomitant expressions, which should explain those words, in a manner different from their ordinary import. There are other considerations in favor of the construction to which the court is inclined. This is a contract, and although a state is a party, it ought to be construed according to those well-established principles which regulate contracts generally. The state is in the situation of a person, who holds forth to the world the conditions, on which he is willing to sell his property. If he should couch his propositions in such ambiguous terms, that they might be understood differently : in consequence of which sales were to be made, and the purchase-money paid, he would come with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchase-money. All those principles of equity and of fair dealing, which constitute the basis of judicial proceedings, require that courts should lean against such a construction. It being understood, that the opinion of the court on the first two questions, has rendered a decision of the third unnecessary, no determination respecting it has been made, (a) It is directed, that the following opinion be certified to the circuit court. 1. That it is the opinion of this court, that under the act of the legislature of Pennsylvania, passed the 3d day of April, in the year of our Lord 1792, entitled “An act for the sale of vacant lands within this commonwealth,” the grantee, by a warrant, of a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, who, by force of arms of the enemies of the United *States, was prevented from r*oqQ settling and improving the said land, and from residing thereon *• from the 10th day of April 1793, the date of the said warrant, until the 1st day of January in the year 1796, but who during the said period persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee. 2. That it is the opinion of this court, that a warrant for a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango (a) Although no opinion was publicly delivered, on the third question, it was understood, that the subject had been generally considered by the court; and my information (which does not, however, proceed from the judges themselves) states the result te have been favorable to the grantee. 343 399 UNITED STATES CIRCUIT COURT, [April Huidekoper v. Douglass. creek, granted in the year 1793, under and by virtue of the act of the legislature of Pennsylvania, entitled, “ An act for the sale of vacant lands within this commonwealth,” to a person who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the date of the said warrant, until the 1st day of January in the year 1796 ; but who, during the said period, persisted in his endeavors to make such settlement and residence, vests in such grantee a fee-simple in the said land ; although, after the said prevention ceased, he did not commence, and within the space of two years thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his survey for the said land, and erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon, for the space of five years next following his first settling of the same, the said grantee being yet in full life. Upon this opinion of the supreme court, the cause was again brought before a jury ; the title was legally deduced from the state to the lessor of the plaintiff, and the facts of a prevention from making an improvement and settlement, under the 9th section of the act of April 1792, by a subsisting Indian war, as well as the facts of a persistence in the endeavor to make such improvement and settlement, were established, in detail, as they appear in the case of Commonwealth v. Coxe, ante, p. 170. After argument, by Ingersoll, K Tilghman, Lewis and Dallas, for the plaintiff ; and by McKean, IK Tilghman and M. Levy, for the defendant, the following charge was delivered to the jury. Washington; Justice.—The plaintiff appears before you with a regular paper title from the warrant to the patent. When this cause was tried before, the counsel for the defendant insisted, that the plaintiff’s title was built upon a contract, which he had not complied with, that he was to make a settlement, such as the enacting clause of the 9th section requires, unless prevented from doing so, by the enemies of the United States ; in which latter case, he was not only to prove a per-*4001 sistence in endeavors *to make the settlement, during the period of J the war ; but was to go on to make it, after the prevention ceased. This question was so difficult, as to divide, not only this court, but the courts of this state. The question was adjourned to the supreme court, who have decided, that a warrantee, who, from April 1793, to the 1st of January 1796, was prevented by the enemies of the United States, from making such settlement as the law required, but who, during that period, persisted in his endeavors to make such settlement, is entitled to hold his land in fee-simple, although, after the prevention ceased, he made no attempt to make such settlement. This we must consider as the law of the land, and govern our decision by it. The questions then are : 1st. Was the Holland Company, from April 1793, to January 1796, prevented from making their settlement? and 2d. Did they persist in endeavors, during that period, to make it ? What is the legal meaning of prevention, and persistence in endeavors ? Were they prevented, and did they persist, within this meaning? The first are questions of law, which the court are to decide ; the latter are questions of fact, proper for your determination. What were they prevented from 344 1805] PENNSYLVANIA DISTRICT. 400 Huidekoper v. Douglass. doing, in order to excuse them ? The answer is, from clearing, fencing and cultivating two acres of land in every hundred acres contained in their warrant, from building a house thereon, fit for the habitation of man, and from residing or causing a family to reside thereon. To what extent were their endeavors to go ? The answer is, to effect these objects. It was not every slight or temporary danger, which was to excuse them from making such settlement, but such as a prudent man ought to regard. The plaintiffs stipulated to settle, as a society of husbandman, not as a band of soldiers. They were not bound to effect everything which might be expected from military men, whose profession is to meet, to combat and to overcome danger. To such men, it would be a poor excuse, to say, they were prevented by danger from the performance of their duty. The husbandman flourishes in the less glorious, but not less honorable walks of life. So far from the legislature expecting, that they were to brave the dangers of a savage enemy, in order to effect their settlements, they are excused from making them, if such dangers exist. But they must persist in their endeavors to make them, that is, they are to persist, if the danger is over, which prevented them from making them. For it would be a monstrous absurdity, to say, that the danger, which, by preventing them from making the settlements, would excuse them, would not, at the same time, excuse them from endeavors to make them, so long as it existed. It would be a mockery, to say, that I should be excused from putting my finger into the blaze of this candle, provided I would persevere in my endeavors to do *it, because, by making the endeavors, I could do it, although the consequences would be such as *• I was excused from incurring. If, then, the company were prevented from making their settlements, by dangers from a public enemy, which no prudent man would or ought to encounter, and if they made those endeavors, which the same man would have made, to effect the object, they have fully complied with the proviso of the 9th section. How then are the facts ? That a public war between the United States and the Indian tribes subsisted, from April 1793, and previous to that period, until late in 1795, is not denied ; and, though the great theatre of the war lay far to the north-west of the land in dispute, yet it is clearly proved, that this country, during this period, was exposed to repeated irruptions of the enemy, killing and plundering such of the whites as they met with, in situations where they could not defend themselves. What was the degree of danger produced by those hostile incursions, can only be estimated by the conduct of those who attempted to face it. We find them sometimes working out in the day-time in the neighborhood of the forts, and returning within their walls, at night, for protection ; sometimes, giving up the pursuit in despair, and retiring to the settled parts of the country ; then returning to this country, and again abandoning it. We sometimes meet with a few men, hardy enough to attempt the cultivation of their lands, associating implements of husbandry with the instruments of war, the character of the husbandman with that of a soldier ; and yet I do not recollect any instance, where, with this enterprising, daring spirit, a single individual was enabled to make such a settlement as the law required. You have heard what exertions were made by the Holland Company, you will consider what was the .state of that country, during the period in question, you will apply the prin 345 401 UNITED STATES CIRCUIT COURT, [Oct Penn v. Klyne. ciples laid down by the court to the evidence in the cause, and then say, whether the title is with the plaintiff or not. Verdict for the plaintiff. *402] *OCTOBER TERM, 1805. Present—Washington, Justice, and Petees, District Judge. Penn’s Lessee v. Klyne. (a) Land titles in Pennsylvania. The Penn family were originally the sole owners of the soil of Pennsylvania; and prior to 1779, had a legal right to withdraw from the general mass, of property, any land not appropriated to other persons, and to appropriate the same to their individual use.1 The claimant of a proprietary tenth or manor, must make title under the divesting law of 1779, and show that that it was known by the name of such manor, and duly surveyed and returned into the land-office, prior to the 4th of July 1776. A warrant and survey, if the consideration be paid, is a legal title, as against the proprietary; if the consideration be not paid, the warrantee has an equitable title, which he may perfect by payment of the amount due. A survey, under a warrant of resurvey, is good as an original survey, though it recite another which is invalid. By an act of the general assembly of Pennsylvania, passed on the 27th day of November 1779 (1 Dall. Laws, 622), the estates of the late proprietaries were vested in the commonwealth, subject to the following proviso : “ Sect. 8. Provided also, that all and every the private estates, lands and hereditaments of any of the said, proprietaries, whereof they are now possessed, or to which they are now entitled, in their private several right or capacity, by devise, purchase or descent; and likewise all the lands called and known by the name of the proprietary tenths or manors, which were duly surveyed and returned into the land-office, on or before the 4th day of July, in the year of our Lord 1776, together with the quit or other rents, and arrearages of rents, reserved out of the said proprietary tenths or manors, or any part or parts thereof, which have been sold, be confirmed, ratified and established for ever, according to such estate or estates therein, and under such limitations, uses and trusts, as in and by the several and respective reservations, grants and conveyances thereof are directed and appointed.” The present suit, and a number of other ejectments, were brought for tracts of land, lying in York county ; in all of which, the general question was, whether the land was included in a tract called and known by the name *4031 a Proprietary manor, duly surveyed *and returned into the land- -* office, on or before the 4th day of July 1776 ? The title of the lessor of the plaintiff to the premises in dispute, was (a) 1W. 0. 0. 207. 1 Conn v. Penn, Pet. C. C. 496; Hurst ®. Durnell, 1 W. 0. C. 262; Penn v. Groff, Id. 890 J Kirk v. Smith, 9 Wheat. 241. 846 1805] PENNSYLVANIA DISTRICT. 403 Penn v. Klyne. regularly deduced from the charter of Charles II. to William Penn,(a) provided there was a manor called and known by the name of Springetsbury, duly surveyed and returned, according to the terms and meaning of the act of November 1779. The material facts, upon the controverted point, were these : At the time that Sir William Keith was governor of the province, the controversy between the prorietor and Lord Baltimore, had arisen; and many persons from Maryland intruded upon the adjacent lands in Pennsylvania. Under the pressure of these intrusions, Sir William, on the 18th of June 1722, issued a warrant to John French, Francis Worley and James Mitchell, in which he recited, u that the three nations of Indians on the north side of Susquehanna are much disturbed, and the peace of the colony in danger, by attempts to survey land on the south-west bank of the river, over against the Indian towns and settlements, without any right or pretence of authority so to do, from the proprietor, unto whom the lands unquestionably belong; that it is agreeable to treaty and usage, to reserve a sufficient quantity of land, on the south-west side of the Susquehanna, within the proprietor’s land, for accommodating the said Indians : and that the Indians had requested, at a treaty, held on the 15th and 16th instant, that a large tract of land, right against their towns on Susquehanna, might be surveyed for the proprietor’s use only ; because, from his bounty and goodness, they would always be sure to obtain whatsoever was necessary and convenient for them, from time to time.” Sir William’s warrant then proceeded, that “by virtue of the powers wherewith he is intrusted for the preservation of his majesty’s peace in this province, and with a due respect and regard to the proprietor’s absolute title and unquestionable rights, he directs and authorizes the persons named in the warrant, to cross and survey, mark and locate, 70,000 acres, in the name and for the use of Springet Penn, Esq., which shall bear the name, and be called the manor of Springetsbury : beginning upon the south-west bank, over against Conestogoe creek ; thence, W. S. W., 10 miles ; thence, N. W. by N., 12 miles; thence, E. N. E., to the uppermost corner of a tract called Newberry ; thence, S. E. by S., along the head line of Newberry, to the southern corner tree of Newberry ; thence, down the side line of Newberry, E. N. E., to the Susquehanna; and thence, down the river side, to the place of beginning : and to return the warrant to the governor and council of Pennsylvania.” The survey being executed on the 19th and 20th of June, was returned to the council, on the 21st of June 1722, according to the following boundaries : “From a red oak *by a run’s side, called 1*4^4 Penn’s run (marked S. P.), W. S. W., 10 miles, to a chesnut, by a run’s L side called French’s run (marked S. P.); thence, N. W. by N., to a black oak (marked S. P.), 12 miles; thence, E. N. E., to Sir Wm. Keith’s western corner tree in the woods, 8 miles; thence, along the S. E. and N. E. lines of Sir Wm. Keith’s tract called Newberry, to the Susquehanna; and thence, along the river side, to the place of beginning ; containing 75,520 acres.” Sir William Keith having communicated these proceedings to the council, on the 2d of July 1722, it was thereupon declared, that “ so far as they concerned or touched with the proprietary affairs, they were not judged to lie before the board,” which acted as a council of state, and not as commis- (a) The original charter was given in evidence upon the trial. 347 404 UNITED STATES CIRCUIT COURT, [Oct. Penn v. Klyne. sioners of property. Col. French (one of the surveyors who executed the warrant) then undertook to vindicate the conduct of Sir Wm. Keith to the council, stating that “ the warrant specified his true reasons ; and that it was, under all circumstances, the only effectual measure, for quieting the minds of the Indians, and preserving the public peace.” The warrant and survey, however, could not be returned into the land-office at that time ; for it was said, that the land-office continued shut from the death of W. Penn in 1718, until the arrival of T. Penn in 1732 ; nor does it appear, that they were ever filed in the land-office, at any subsequent period. In order to resist the Maryland intrusions, encouragement was offered by Sir W. Keith, and accepted by a number of Germans, for forming settlements on the tract which had been thus surveyed; and in October 1736, Thomas Penn having purchased the Indian claim to the land, empowered Samuel Blunston to grant licenses for 12,000 acres (which was sufficient to satisfy the rights of those who had settled, perhaps, fifty in number), within the tract of land “ commonly called the manor of Springetsbury,” under the invitations of the governor. But in addition to such settlers, not only the population of the tract in dispute, but of the neighboring country, rapidly increased. The controversy with Maryland was finally settled, in the year 1762, at which time James Hamilton was governor of the province ; and on the 21st of May of that year, he issued a warrant of re-survey, in which it was set forth, “ that in pursuance of the primitive regulations, for laying out lands in the province, W. Penn had issued a warrant, dated the 1st of September 1700, to Edward Pennington, the surveyor-general, to survey for the proprietor, 500 acres of every township of 5000 acres ; and generally, the proprietary one-tenth of all lands laid out, and to be laid out ; that like warrants had been issued by the successive proprietaries to every succeeding surveyor-general; that the tracts surveyed, however, are far short of the due proportions of the proprietary; that, therefore, by order of the then *. Commissioners of property, and in virtue of the general warrant J aforesaid to the then surveyor-general, there was surveyed for the use of the proprietor, on the 19th and 20th of June 1722, a certain tract of land, situate on the west side of the river Susquehanna, then in the county of Chester, afterwards of Lancaster, and now of York, containing about 70,000 acres, called and now well known by the name of the manor of Springetsbury ; that sundry Germans and others afterwards seated themselves, by leave of the proprietor, on divers parts of the said manor, but confirmation of their titles was delayed on account of the Indian claim ; that on the 11th of October 1736, the Indians released their claim, when (on the 30th of October 1736) a license was given to each settler (the whole grant computed at 12,000 acres), promising patents, after surveys should be made ; that the survey of the said tract of land is either lost or mislaid ; but that from the well-known settlements and improvements made by the said licensed settlers therein, and the many surveys made round the said manor, and other proofs and circumstances, it appears, that the said tract is bounded E. by the Susquehanna; W. by a north and south line, west of the late dwelling plantation of Christian Elstor, called Oyster, a licensed settler; N. by a line nearly east and west, distant about three miles north of the present great roads, leading from Wright’s ferry through York Town by the said Christian 348 1805] PENNSYLVANIA DISTRICT. 405 Penn v. Klyne. Oyster’s plantation to Monockassy ; S. by a line near east and wrest, distant about three miles south of the great road aforesaid ; that divers of the said tracts and settlements within the said manor have been surveyed and confirmed by patents, and many that have been surveyed, remain to be confirmed by patents, for which the settlers have applied ; that the proprietor is desirous, that a complete draft or map, and return of survey of the said manor, shall be replaced and remain for their and his use, in the surveyorgeneral’s office, and also in the secretary’s office ; that by special order and direction, a survey for the proprietor’s use was made by Thomas Cookson, deputy-surveyor (in 1741), of a tract on both sides of the Codorus, within the said manor, for the site of a town, whereon York Town has since been laid out and built, but no return of that survey being made, the premises were re-surveyed by George Stevenson, deputy-surveyor (in December 1752), and found to contain 436£ acres.” After this recital, the warrant directed the surveyor-general “ to re-survey the said tract, for the proprietor’s use, as part of his one-tenth, in order that the bounds and lines thereof may be certainly known and ascertained.” On the 13th of May 1768, the governor’s secretary, by letter, urged the surveyor-general to make a survey and return of the outline of the manor at least; the survey was accordingly executed, on the 12th and 30th of June ; and the plat was returned into the land-office, and also into the secretary’s office, on the 12th of July 1768, *containing 64,520 acres ; a part of the original tract of 70,000 acres having been cut off, under the agreement between Penn L and Baltimore, to satisfy the claims of Maryland settlers. On the trial of the .cause, evidence was given on each side, to maintain the opposite positions, respecting the existence or non-existence of the manor of Springetsbury ; from public instruments; from the sense expressed by the proprietaries, before the revolution, in their warrants and patents; from the sense expressed by the warrants and patents issued since the revolution ; from the practice of the land-office ; and from the current of public opinion. The general ground taken by the plaintiff’s counsel (E. Tilghman, Lewis (a) and Rawle) was, 1st. That the land mentioned in the declaration is a part of tract called, or known by the name of a proprietary manor. 2d. That it was a proprietary manor, duly surveyed, within the true intent and meaning of the act of the general assembly. And 3d. That the survey was duly made and returned before the 4th of July 1776. The defendant’s counsel (McKean, attorney-general, Hopkins and Dallas) contended, 1st. That Sir William Keith’s warrant being issued in 1772, without authority, all proceedings on it were absolutely void ; and that neither the warrant nor survey had ever been returned into the land-office. 2d. That Governor Hamilton’s warrant was issued in 1762, to re-survey a manor, which had never been legally surveyed, and was, in that respect, to be regarded as a superstructure, without a foundation. 3d. That the recitals of Governor Hamilton’s warrant are not founded in fact; and that considering the survey, in pursuance of it, as an original survey, it was void, as (a) Duncan, not Lewis, Mr. Rawle’s MSS. 349 406 UNITED STATES CIRCUIT COURT, [Oct. P«nn v. Klyne. against compact, law and justice, that the proprietor should assume for a manor, land that had been previously located and settled by individuals. The following charge was delivered to the jury : Washington, Justice.—In this cause, there are two questions. 1st. Have the lessors of the plaintiffs a title to the land in question ? If they have, 2d. Has the defendant a better right ? 1st. The lessors of the plaintiffs, or those under whom they claim, were once the sole owners and proprietaries, not only of the government, but of the soil of Pennsylvania, not in a political, but in their private and individual capacities; not as trustees for the people, as to the whole, or any part of the soil, but in absolute fee-simple, for their individual uses, and this right was no otherwise defined, by concessions or agreements, by William Penn, or his descendants, than to render them trustees for such individuals, as should acquire equitable rights, to particular portions of land, under general or special promises, rules and regulations, which they may, from time to time, have entered into and established. *4071 *Their right to appropriate lands to their own use, was not derived J from, nor founded upon, any such rules or concessions, but flowed from their original chartered rights, which bestowed upon them the whole of the soil. But as it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rules for its government, and the government of those who might wish to acquire rights to the unappropriated lands in the province, reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private and individual uses. From hence, the following principles resulted: that all persons, complying with the terms thus held out, acquired a right to the proportion of land, thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same land, but even against the proprietor himself, unless he had previously, and by some act of notoriety, evidenced his intention to withdraw such land from the general mass of property, and to appropriate it to his individual use. As a necessary consequence of this principle, whenever such was his intention, or was made known by a warrant of appropriation and a survey, to make out, and locate the ground thus withdrawn, this was notice to all the world, that no right to the land, thus laid off for the proprietaries, could be acquired by individuals, without a special agreement with the proprietaries, which might or might not be upon the common terms, as the proprietors might choose. But if, before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, appropriated a tract, within the bounds of the tract thus laid off for the proprietaries, such prior appropriation, would no otherwise affect the rights of the proprietaries, than in relation to the particular tracts thus claimed. Their right to the residue, remained unaffected. On this ground, the right of the first proprietor stood at the time of his death, and so continued to exist, in his legal representatives, until the year A. D. 1779, when a law of this state was passed, divesting the proprietaries of all their estate, right and title, in or to the soil of Pennsylvania, and vesting the same in the commonwealth. But in this law, certain portions of land within the commonwealth are excepted, and the right of the proprietaries, to such portions, is confirmed and established for ever. The lessors of the plaintiffs, who, most undoubtedly, are entitled to all 360 1805] PENNSYLVANIA DISTRICT. 407 Penn v. Klyne. the rights of the proprietaries, are compelled to date their title from this law ; and therefore, it is necessary for them to show, that the land in question is part of a tract of land, called and known by the name of a proprietary tenth or manor ; which was duly surveyed and returned into the landoffice, on or before the 4th of July 1776. They are to prove, 1st, that this was, in 1779, called and known by the name of a proprietary tenth or manor. The words of the law are peculiar. As to their private rights, they must be such *whereof they were in 1779 possessed, or to which they were entitled. But as to the tenths or manors, it was sufficient, if they were known by that name, and had been surveyed and returned, before the 4th of July 1776. These expressions respecting the manors, were rendered necessary, to avoid giving the word manor a technical meaning; for there were no manors, in a legal acceptation of the word, in this state, but there were many tracts of land appropriated to the separate use of the proprietaries, to which this name had been given. The first inquiry, therefore, under this head, is, was the land in question part of a tract of land called and known as a manor, in the year 1776 or 1779? To prove this fact, the licenses granted by Thomas Penn, in 1736, to about 50 settlers, in different parts of the first, as well as second survey, in which this is called the manor of Springetsbury, is strongly relied upon, to show that, even at that early period, it had acquired this name : the tenor of the warrants afterwards granted for lands within this manor, varying from the terms of the common warrants, and this variance proved by witnesses, as marking this for manor land : the testimony of witnesses, to show that the west line of this manor was always reputed to go considerably beyond York to Oyster’s : the practice of surveyors and public officers, whenever warrants were issued to survey lands in the manor. But even if this tract of land had never acquired the name of a manor, prior to 1768, the survey made of it in that year, as a manor, is conclusive. From that period, it acquired, by matter of record, the name of a manor, and so it appears, by the evidence in the cause, it was called and known. 2d. Was it duly surveyed and returned into the land-office before the 4th of July 1776? That it was surveyed in 1768, is admitted ; but it is contended, that it was not duly surveyed. It is so contended, because it was surveyed in 1722. That survey, it is said, was void, because made without authority, was not executed by the surveyor- general, and was returned into the council of state’s office. The survey then being void, it is said, vitates the survey of 1768 : the former being considered as the foundation, and the latter as the superstructure. The survey of 1768 is executed, it is argued, under a warrant of re-survey in 1762, and consequently, the repetition of an act which has no validity, cannot give it validity. It is further argued, that the recital of the loss of the survey of 1722, is a mere pretence, a fraud, to enable the proprietaries to exchange bad land for good. Now, I do not understand this kind of logic: it is far too refined for the sober judgment of men who have to decide. If the invalidity of the first survey can have any effect upon the second, I should suppose it would establish it, beyond all doubt; because, if the first survey was good, and if the warrant of 1762 was merely an order to retrace the lines of that survey, the counsel might, with some plausibility at least, argue that the surveyor was p* bound to pursue the lines *of the former survey ; and this would give 351 409 UNITED STATES CIRCUIT COURT, [Oct. Penn. v. Klyne. color to his observations, founded on the mistake of the public officers, as to the proper lines of the survey. But if the first survey was unauthorized and utterly void, then the second could not, in the nature of things, be a re-survey. W hatever words were used in the warrant, there is no magic in that word. If there never was a former survey, there could be no re-survey; and consequently, the survey of 1768 was an original survey, founded on a special warrant, marking out the lines and bounds, by which the surveyor was to go, and such is the fact in this case, although the survey of 1722 is referred to in the warrant of 1762, yet the lines to be surveyed under this second warrant, are specially described. To those he was confined, and had he departed from them, the survey would, unless it was rectified by acceptance, have been void, as against the proprietary, and he might have directed it to be made again. It is not denied, but that the survey of 1768 is in conformity with the warrant. It was accepted, as a valid survey, and I cannot see, upon what ground, the defendants, or any other person, can now say, that it was void. Had not the proprietary a right to appropriate to his private use, the land included within the survey of 1768, in part of the tenth, which he had always reserved to himself? And if the warrant and survey make the appropriation, what does it signify, whether there was a prior survey or not ? or whether it was good or bad ? True, if, previously to the warrant of 1762, third persons had acquired a right to parcels of this land, or had done so afterwards, and before the survey in 1768 (but without notice of the warrants), the proprietaries would have been bound to make them titles, upon their complying with the terms of the grants to them. But this could not impeach his title to the residue of the land, comprehended within the lines of the survey. Upon the whole, then, the court is of opinion, that this manor was duly surveyed; and it is admitted, that the survey was returned into the land-office, before the 4th of July 1776. If so, the plaintiff’s title is unquestionable. 2d. Has the defendant a better title? He claims by warrant, in 1747, regularly brought down to him, for 95 acres. He has no patent, but yet, by the common law of this state, a warrant and survey, if the consideration be paid, is considered a legal title against the proprietary, as much so as if he had a patent. If the consideration be not paid, then the legal title is not out of the proprietaries ; but still the warrant-holder has an equitable title, which it is in his power to render a legal one, by paying what is due to the proprietaries. No proof is given of payment by the defendant, or any one of those under whom he claims, but you are called upon to presume it from length of time. Now, in a case of this sort, there is no room for presumption, the very circumstance of the defendant appearing in court without a patent, or without showing or pretending, any ever was granted, destroyed # 1 the *presumption, which length of time might have created. For if he J had paid, he would have been entitled that moment to a patent: the one was the necessary consequence of the other. Men might long forbear to call for this confirmation of their titles, from the inconvenience of paying the consideration, but that he should pay, and not go on to perfect his title, is altogether improbable, and certainly not to be presumed ; but if the jury could presume anything from length of time, yet that presumption may be repealed, and in this case is. The deed of 1771, from Pence, the grantee, to Shultz, proved that he had 352 1805] PENNSYLVANIA DISTRICT. 410 Gupp v. Brown. not paid, and the deed from Shultz’s executors to Stump, in 1794, that it was then paid. The defendant, therefore, has not a legal title to authorize a verdict in his favor ; but he has an equitable title, and may compel a grant upon paying or tendering what is due to the plaintiffs, with costs of this suit And if the plaintiffs should then refuse, this court, sitting in equity, would compel them, at the expense of paying costs. In the state court, I understand, the jury may make a kind of special or conditional finding, in consequence of the having no court of equity ; but this court having equitable jurisdiction, your verdict must be general. Verdict for the plaintiffs, (a) Gupp et al. v. Brown. Execution of commission. A commission, issued to four commissioners jointly, was executed by three only, two of whom were of the defendant’s nomination; on objection by the defendant to the reading of the depositions, it was held, that the commission was not well executed: commissioners do not derive their authority, from the parties, but from the court. A commission had issued to four commissioners, jointly, to take the depositions of witnesses in England. It was executed and returned by three of the commissioners only, two of whom, however, were of the defendant’s nomination. At the trial of the cause, the defendant’s counsel objected to the reading of the depositions ; and cited 1 Bac. Abr. 202 ; 2 Inst. The plaintiffs’ counsel observed, that the commission had not issued in the usual form; but insisted, that as the defendant’s *commissioners r4. had attended, the objection could not be maintained on his part. L By the Court.—The objection is fatal. The commissioners do not derive their authority from the parties, but from the court ;(&) and as it is a special authority, it must be strictly pursued. The power given to four, cannot be well executed by three commissioners, (c) The evidence overruled. Ingersoll and Todd, for the plaintiffs. Franklin and Dallas, for the defendant. (a) As some of the persons interested in the ejectments brought for lands in Springetsbury manor, had purchased from the state; and as the state would be entitled to all arrears of purchase-money, if the proprietary title should not be established; the legislature had authorized the governor to employ counsel to assist the counsel of the defendants. After the decision of the above case, the legislature appointed James Ross and James Hopkins, Esqs., to take defence in the next ejectment, Penn’s Lessee ®. Groff, which was tried in April term 1806; and upon the same charge, the same verdict was given. The defendant’s counsel having tendered a bill of exceptions to the charge of the court, arrangements were made to obtain a final decision in the supreme court, upon a writ of error. It appears, however, from the journals, that the legislature is not disposed to interfere any further. (&) Those who execute a commission, are appointed by the court, and although they may be nominated by the parties, they are not their agents. Gilpin ®. Consequa, Peters C. C. 88. (c) If a commission, directed to five commissioners, of whom three are named by the plaintiff and two by the defendant, is executed by three only, or by any number less .. 4 Dall,—23 y 353 *412 UNITED STATES CIRCUIT COURT, [Aprii *APRIL TERM, 1806. Présent—'Washington-, Justice, and Peters, District Judge. United States v. Richard Johns, (a) Habeas corpus.—Challenges.—Witness.—Evidence.—Casting away vessel. Upon a habeas corpus, it can only be inquired, whether there is sufficient probable cause to believe, that the person charged has committed the offence stated in the warrant of commitment. On an indictment under the act of congress of 26th March 1834, for casting away and destroying a vessel, of which the defendant was the owner, to the prejudice of the underwriters, the accused has the right of peremptory challenge, as at common law, on a capital charge. The president of an incorporated company, by which a vessel has been insured, is a competent witness against the defendant, on such a prosecution. A copy of a manifest, taken from the books of a custom-house, is a copy of a record, and it may be given in evidence, when properly proved. An exemplification of a law of a state, under the great seal thereof, is admissible in evidence, without any other attestation. The meaning of the word “ destroy,” in this act, is to unfit a vessel for service, beyond the hopes of recovery by ordinary means; casting away, is a species of destroying. This was a prosecution, on the 2d section of the act of congress, of the 26th of March 1804 (2 U. S. Stat. 290), which is expressed in these words : “ That if any person shall, on the high seas, wilfully and corruptly cast away, burn or otherwise destroy, any ship or vessel of which he is owner, in part or in whole, or in anywise direct or procure the same to be done, with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance thereon ; or if any merchant or merchants that shall load goods thereon, or any other owner or owners of such ship or vessel, the person or persons offending therein, being thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall suffer death.”(5) In the course of the prosecution and trial the following points occurred : I. The defendant was brought by habeas corpus before the court, holding an adjourned session, on the 8th of January 1806, when it appeared * _ that, on the 26th of December 1805, he *had been committed by the -I mayor of the city of Philadelphia, charged on the oath of Andrew Clarke, with having, on the 20th day of August last, or thereabouts, on the high seas, scuttled the schooner Enterprise, of Baltimore, with intention to defraud the underwriters, as he believes.” than the whole, a deposition taken under it cannot be read, although the two commissioners named by the defendant, by whom the objection is made, were present. The authority of the commissioners is special, and must be executed according to the tenor of it. Armstrong v. Brown, 1 W. 0. 0. 34. See also Hoofnagle ®. Dering, 1 Yeates 302. A joint commission cannot be executed by some of the commissioners, although the others refused to act. Munns v. Dupont, 3 W. C. 0. 41. A deposition taken by a commissioner, in conjunction with a person not named in the commission, is not admissible in evidence. Willing ®. Consequa, Peters 0. C. 309. (a) s. c. 1 W. C. 0. 363. (J) The second member of the section is so inaccurately expressed, that the attorney of the district thought, at first, there must have been some error of the press; but the secretary of state informed him, that the printed copy was found, upon a comparison, to agree exactly with the roll. See the analogous English statutes, 4 Geo. L, c. 12, § 3; 11 Geo. I., c. 29. 354' 1806] PENNSYLVANIA DISI RIOT. United States v. Johns. 418 The prisoner's counsel objected, 1st. That the commitment was vague, and did not describe the offence, within the words of the act of congress. 2d. That the offence was not committed within the district of Pennsylvania; and no demand having been made for his surrender, by the executive of any other state, there was no law to warrant his arrest or detention. 3d. That the evidence was not sufficiently strong, to found an indictment against him, and he was entitled, at all events, to be discharged on bail. It was answered by the Attorney of the District, 1st. That whatever might be the formal defects of the original commitment, the court, being now satisfied with the evidence, would remand the prisoner for trial. 2d. That it was not necessary, for that purpose, to give positive proof of guilt; but.to show probable cause for the accusation. 3d. That the case did not come, at all, under the constitutional or legislative provisions for the surrender of a fugitive from the justice of another state ; but it was the case of a crime against the United States, committed on the high seas ; when the trial is directed to be in the district where the offender is apprehended. (1 U. S. Stat. 113, § 8 ; Ibid. 91, § 33.) By the Court.—Upon a habeas corpus, we are only to inquire whether the warrant of commitment states a sufficient probable cause to believe, that the person charged has committed the offence stated. We have heard the evidence ; and cannot doubt of its sufficiency to that extent. We do not think that the prisoner ought either to be discharged or bailed: he must be remanded for trial. II. When the panel of jurors was called over, the prisoner’s counsel claimed the right of challenging thirty-five jurors peremptorily, as the offence charged in the indictment, had been created, since the act of the 30th of April 1790 (1 U. S. Stat. 119, § 30); and the right of challenge remained as at common law. (4 Hawk. 389 ; 4 Bl. Com. 352.) The clause, respecting challenges is in these words: “If any person or persons be indicted of treason against the United States, and shall stand mute, or refuse to plead, or shall challenge peremptorily above the number of thirty-five of the jury; or if any other person or persons be indicted of any other of the offences herein-before set forth, for which the punishment is declared to be death, if he or they shall so stand mute, or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury; the court, in any of the cases aforesaid, shall, notwithstanding, r4s proceed to the *trial of the person or persons so standing mute or l challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.” The Attorney of the District said, he was indifferent which way the court decided the point; but it was proper to remark, that the 29th section of the judicial act referred, generally, to the state law, for the rule relating to juries (1 U. S. Stat. 88); that the state law limited the right of peremptory challenge, in cases like the present, to the number of twenty; that the 30th section of the penal act (Ibid. 119) obviously considers the whole law of peremptory challenge provided for, in future, as well as existing, capital cases ; and that it was improper to refer to a common-law rule, if a rule was prescribed by statute. W 414 * UNITED ‘ STATES CIRCUIT COURT,' [April United States v. Johns. Peters, Justice.—The words of the penal act Then they restrain the common-law right of peremptory challenge, also expressly confine the operation of the restraint, to the offences before set forth in the act. For offences not set forth in the act, the only rule is furnished by the common law; and it is the privilege of the prisoner that it should be applied and enforced. Washington, Justice.—The right of challenge was a privilege highly esteemed, and anxiously guarded, at the common law; and it cannot be doubted, but that at the common law, a prisoner is entitled, on a capital charge, to challenge peremptorily thirty-five of the jurors. If, therefore, the act of congress has substituted no other rule (and, in the present instance, it is clear, that none has been substituted), the common-law rule must be pursued. It is not easy, indeed, to assign a reason for introducing the words that confine the provision, respecting peremptory challenges, to offences before set forth in the act; but it is enough to bind our judgments, that the words are actually introduced, (a) III. The indictment contained four counts: 1st Count. That the prisoner being owner, in whole, of a certain ship or vessel called the Enterprise, of Baltimore, “the Baltimore Insurance Company, by their president, and under their corporate seal, attested by their secretary, did subscribe and underwrite a certain policy of insurance upon the said ship or vessel, called the Enterprise, in the sum of $2700, upon a certain voyage, &c. And the said Richard Johns, well knowing the premises, with intent and design wilfully, corruptly, unlawfully, and feloniously to prejudice the said *., , Baltimore Insurance Company, &c., and by means *of the aforesaid J insurance, unjustly to acquire to himself unlawful and corrupt gain and advantage, on the, &c., with force and arms, on the high seas, &c., wilfully, corruptly, unlawfully and feloniously, did cast away and destroy the said ship or vessel, called the Enterprise, in and upon the voyage in the said policy of insurance, mentioned, &c., to the great damage of the said Baltimore Insurance Company, against the form of the act of the congress of the United States, &c.” 2d Count. That he committed the felony, by feloniously boring auger-holes through the bottom of the vessel. 3d Count. That he feloniously directed and procured the vessel to be cast away and destroyed. 4th Count. That he feloniously directed and procured the vessel to be cast away and destroyed, by feloniously boring auger-holes through the bottom of the vessel. 1st. The president of the Baltimore Insurance Company was offered as a witness, to prove the order for insurance, and the subscription to the policy. (d) The prisoner’s counsel objected to his competency; and cited 1 P. Wms. 595 ; 1 McNalL 52-3. But the objection was overruled. 2d. A copy of the manifest of the outward cargo of the Enterprise, («) In the case of the United States v. Russell, on an indictment for murder on the high seas, tried at October term 1806, the prisoner’s counsel, at first, claimed the right of peremptorily challenging thirty-five jurors; but that being an offence set fCrth in the penal law, was expressly embraced by the provision limiting the peremptory challenges to twenty; and the claim was, accordingly, overruled. (b) But see 1 W. C. 0. 368. 356 1806j PENNSYLVANIA DISTRICT. 415 United States v. Johns. sertified under the hands and seal of the custom-house officers of Baltimore, was offered in evidence, after proof by the witness, that he had himself compared it with the record. The prisoner’s counsel objected, that there was no evidence, that the original manifest was subscribed by the prisoner, or even delivered by him. The district-attorney answered, that by 21st section of the impost law (1 IT. S. Stat. 642) it was made the duty of the collector of the port, “to record, in books to be kept for that purpose, all manifests;” and that being a record, the proof offered was unexceptionable. By the Court.—In that point of view, the evidence is clearly admissible. • 3d. The policy of insurance, under the corporate seal of the company, signed by the president and attested by the secretary, was offered in evidence. The prisoner’s counsel objected, that the charter of incorporation must be produced, before any corporate act or instrument could be given in evidence. The attorney of the district opposed the objection, on account of the difficulty, which the precedent would create in future prosecutions : but the court deeming it necessary to establish the corporate capacity of the Insurance Company, he read the acts of the legislature of Maryland on that subject, from the statute book, published by authority ; and these being limited in their duration, he offered an exemplification of a recent act, protracting the existence of the corporation at and beyond the time or subscribing the policy in *question. The exemplification, however, was under the great seal of Maryland, but was not attested L by the governor, or any other principal officer of the state. The prisoner’s counsel objected to the want of such attestation; but the objection was overruled. By the Court.—The act of congress declares, " that the acts of the legislatures of the several states shall be authenticated, by having the seal of their respective states affixed thereto.” (1 U. S. Stat. 122.) It does not require the attestation of any public officer, in this case; although in all the cases afterwards provided for, such'an attestation is required. There is a good reason for the distinction. The seal is, in itself, the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy as to the officer entitled to affix the seal, which is a regulation very different in the different states. 4th. On the evidence in the cause, various grounds of defence were adopted by the prisoner’s counsel, Lewis, Rawle, 8. Levy, 8. Ewing and C. Ingersoll, and controverted by Dallas, attorney of the district, of which the principal were these: 1st. That the second section of the act of congress does not expressly authorize an indictment against an American citizen; and it would be an usurpation of legislative power, to extend its operation to aliens, committing offences on the high seas. 2d. That the act does not expressly embrace the case of an insurance by a corporation; and a corporation is not included in the description of persons. 3d. That the indictment describes the Enterprise to be a ship or vessel, which is not sufficiently specific. 4th. That in fact, and in law, the vessel was not cast 357 416 UNITED STATES CIRCUIT COURT, [April Symonds v. Union Insurance Co. away and destroyed. 5th. That if the vessel were feloniously destroyed, the evidence does not prove the prisoner to be the felon, (a) The Court, in the charge to the jury, having reviewed and commented upon the facts, observed, that the objections, in point of law, would appear on the record, and might be taken advantage of, upon a motion in arrest of judgment. On the law, therefore, the court avoided giving any opinion at present, except in relation to the question, what constituted the destruction of a ship or vessel, within the meaning of the act of congress ? On this question, they had deliberated much; and as the result, reduced to writing an opinion, which they delivered, in charge to *the jury, in these -* words : “ To destroy a vessel, is to unfit her for service, beyond the hopes of recovery, by ordinary means. This, in extent of injury, is synonymous with cast away. It is the generical term : casting away is a species of destroying, as burning is. Both mean such an act, as causes a vessel to perish, or be lost, so as to be irrecoverable by ordinary means.” The defendant was acquitted, owing, it is believed, to a doubt, whether he had bored himself, or directed any other person to bore, the auger-holes in the bottom of the vessel; which was a new vessel, picked up at sea, after she was abandoned, carried into St. Jago de Cuba, and there (the holes being discovered) soon repaired, and fitted again for sea. Symonds v. Union Insurance Company. (5) Marine insurance.—Total loss. If a vessel be prevented, by a blockading squadron, from entering any of the enumerated ports, the voyage is broken up, and the assured may abandon, and recover for a total loss. Insurance was effected by the plaintiff, who was the owner of a vessel, on her freight and cargo, by separate policies, “ at and from New York to Cape Frangois, with liberty to proceed to another port, should Cape Frangois be blockaded the vessel sailed from New York, with instructions where to proceed, if she could not enter Cape Frangois ; she was prevented from entering that port, or any other designated in the instructions given to the master, and was obliged by the blockading force to go to another place, where the master disposed of the goods and invested the proceeds in a return-cargo, with which the ship returned to New York : Held, that the insured might abandon, and recover as for a total loss. The plaintiff had effected, at the office of the defendants, three policies of insurance, dated the 12th of September 1803. The first on the schooner Diana, Nicholas, master, valued at 04500; the second, on the freight of the schooner, valued at 01500, and the third, on her cargo, valued at 04000 ; on a voyage, “ at and from New York to Cape François, with liberty to proceed to another port, should Cape François be blockaded, and the vessel prevented entering that port, from that, or any other cause, and at and from thence, back to New York.” The order for the insurance declared, “that (a) In the course of the defence, the following authorities were cited: 2 East P. C. 1097-8; Johnson’s Diet. “Cast-away;” 8 Mod. 67, ca. 48; lb. 74, ca. 52; 4 Hawk. 67, 62; 2 Burr. 1037; Plowd. 177; Rex ®. Harrison, 1 Leach, 215; 2 Str. 1241; 8 Mod. 66 ; 1 Hale 635 ; 2 Id. 889 ; 3 Inst. 202 ; 4 Bl. Com. 881; Leach 109 ; Cow. Interp.; 2 Hawk. c. 25, § 82; 2 Rol. Abr. 80; 5 Mod. 137-8. The attorney of the district cited I Leach 215; 1 Bl. Com. 467; 2 Inst. 702; 1 Woodes. 195. (J) s. c. 1 W. C. 0. 882. 358 1806] PENNSYLVANIA DISTRICT. 417 Symonds v. Union Insurance Co. the assured is not to abandon, if she cannot enter the Cape, from blockade or other cause, but liberty is given to proceed to some other port.” The schooner sailed from New York, on the 19th of September 1803, with instructions “ to proceed to Cape Frangois ; and if she could not enter, from blockade or other cause, to steer towards the Bite of Leogane, and enter either into Port-au-Prince, or some other port in the bite.” On the 8th of October, she was boarded, off the island of St. Domingo, by an officer from the Blanche, a British frigate, who sent her papers on board the Bel-lerophon, another British ship of war. On the next day, Captain Nicholas was taken on board the Bellerophon, and was informed, “ that the island of St. Domingo was blockaded by an English squadron, in consequence of which, no vessel would be permitted to enter any port or harbor in the said island;” and, to that effect, the register and papers of the schooner were indorsed. It appeared also from the master’s testimony, “ that he was told, he was not permitted to proceed on his intended voyage, nor to go to Cuba, but should proceed down to Kingston, Jamaica; that he was ordered to keep near the frigate Desire, until they had cleared the island of St. Domingo ; that on his arrival at Kingston, he was also told by the customhouse officers, that he could not *clear out for Cuba, whither he was g still desirous of going; and that, finally, the cargo was landed and L sold at Kingston. The proceeds were then invested in another cargo, with which the ship returned to New York. On her arrival there, about the 17th of December 1803, the plaintiff abandoned the cargo and freight to the defendants, and claimed as for a total loss ; to recover which (deducting the proceeds of the cargo, and accounting for the profits on the investment homeward), the present action was instituted. On the trial of the cause, these grounds of defence were taken ; 1st. That upon the specific terms of the contract, the assured had not a right to abandon. The consequence of being turned aside by a blockading force was contemplated by the parties, but not insured against; for the voyage insured was to the Cape, or to another unblockaded port of Hispaniola. The whole island being blockaded, another port must be sought at the risk of the assured; the conduct of the British being neither capture, nor arrest; but simply precaution, to prevent a breach of blockade. 2d. That on general principles, it is not a case of abandonment for a total loss. The cargo was not prevented from arriving at its place of destination, by any risk insured against, acting upon the subject insured immediately, and not circuitously. There has been no capture, with a view to condemnation ; no arrest, for the purpose of an embargo, in the service of a foreign prince ; the cargo remains specifically the same ; the ship has returned ; wages have been paid, and of course, freight has been earned ; nothing, in short, has affected the voyage insured, but the act of preventing a breach of blockade, and the low state of the Kingston market; and for neither of these is the underwriter liable. 2 Marsh. 434; 2 Burr. 1198; 1 T. R. 187; 2 Marsh. 482; 2 Burr. 696; 3 Atk. 195; 2 Str. 849; 2 Marsh. 496; Doug. 219; 1 Esp. 237; 3 Bos. & Pul. 388; 5 Esp. 50; Mill. 305-6; 5 East 388. The answer, for the plaintiff, was, in general, that the voyage insured had been destroyed, by the superior force of a foreign power ; and that, in- 359 418 UNITED STATES CIRCUIT COURT, [Apri] Conframp v. Bunel. dependent of the means taken to prevent a breach of the blockade, the vessel had been constrained, against the express desire of the master, to proceed to a particular port, in exclusion of every other. And The Court, in the charge to the jury, declared the law to be clearly with the plaintiff ; on which, a verdict was found in his favor for the goods and freight, at the value insured, subject to a deduction of the proceeds of the homeward investment. Hawle, for the plaintiff. Dallas, for the defendant. *419] *Confkamp et al. v. Bunel. (a) Lex loci contractus. A contract is governed by the law of the place where it was made. Where the lex, loci contractus protects a party from execution, on a judgment upon a contract, he will not be liable to arrest on mense process, out of this court, for the same cause. Capias. On a rule to show cause why the defendant should not be discharged on common bail, the following facts were established by the plaintiff : That in the year 1787, the defendant gave his note for 55,000 livres, to a person of the name of Horguetand, payable in two instalments, for value received in 55 negroes. On the 8th of February 1787, the note was assigned to the plaintiffs, and several partial payments were afterwards indorsed upon it. In November 1789, a suit was instituted at Port-au-Prince, to recover the balance ; and a judgment by default was entered for 36,666 livres ; to recover which was the object of the present action. For the defendant, it was shown, that all the parties to the contract were French subjects, resident in the island of St. Domingo, at the time the contract was made ; that they continued French subjects at this time ; that in August of the year 1793, the French commissioners (Polverel and Santhorax) had proclaimed, at Port-au-Prince, the abolition of slavery, and the freedom of the negroes ; which the national convention ratified, in the February ensuing (4 Edw. Hist. West Ind. 146, 219); that, in consequence of this emancipation, the very negroes who had been purchased by the defendant, had been taken from him ; and that with a view to the calamitous situation of the colony, the following laws had been enacted by the French government : 1st. Extract from the law of the 6th of September 1802. Sect. 1. Until the 1st of Vendemaire, 16th year, all suits are suspended as well against the principal debtors, as their securities, for debts contracted prior to the 1st of January 1792, for the purchase of real propertv. or of negroes. Sect. 6. The creditors may, however, take all conservatory steps for the preservation of their rights, and even have the amount of their debts liquidated by judgments, but the execution thereof shall be stayed according to the first section. (a) s. a 1 W. 0. 0. 340, reported as Camfranque Burnell. 360 1806] PENNSYLVANIA DISTRICT. 419 Conframp v. Bunel. 2d. Supplement to the above law, of the 12th of April 1803. The preamble states that doubts have arisen, as to the construction of the 6th article ; and the supplement declares, Sect. 1. That by the words “ conservatory steps ” (actes conservatoires) are not to be understood any acts, which would prevent the effect of the suspensive clause of the law, such as attachments of property, levies on real or personal estate, oppositions to the payments of rents, or other debts, &c. Sect. 2. Oppositions (in nature of attachments) made to the payment of principal sums due to the debtors, shall not prevent such payments, but the debtor shall be bound to make it *appear, within six months, L that he has employed those capitals, in improving his St. Domingo plantation, otherwise, he will not be entitled to the benefit of the law. Upon these premises, the defendant's counsel contended, 1st. That the contract of the parties was to be expounded and enforced, according to the laws of France. 1 Bos. & Pul. 138; 3 Ves. jr. 446; 4 Ibid. 577; 1 W. Bl. 258; 1 H. Bl. 665, 690; 4 T. R. 184. 2d. That upon the general prin- ciples of the French law, the defendant was not liable to be personally arrested on this contract, which does not constitute a commercial debt 7 Tit. 1 Art. Ord. of Com. p. 386. 3d. That the right of action, to recover the debt, was expressly suspended by the law of the 6th of September 1802; and it was as irregular to commence the suit, before the suspension had run out, as it would be to obtain judgment and issue execution. The plaintiff £ counsel answered : 1st. That this was a commercial debt, within the terms of the authority cited, for which a personal arrest was authorized by the law of France. 2d. That the law of the 6th of September 1802, applies to original causes of action, and not to cases in which judgment had been previously rendered. 3d. That even where the lex loci governs the contract, it is the law of the country in which the suit is brought, that must furnish the form of the remedy. Kaim’s P. E. 567-8; 2 Vern. 540; 3 Dall. 373; 1 Bos. & Pul. 139, 140. 4th. That the utmost benefit, which the defendant can reasonably claim from the law of September 1802, is a stay of execution, until the specified period has elapsed: but in the meantime, the plaintiffs should be permitted to proceed to obtain judgment, and to secure the defendant’s appearance eventually to answer it. The Coubt were clearly of opinion, that the parties were bound by the law of the 6th of September 1802 ; that the present case was within the law ; and that the suspension of the law applied as well to the commencement of the suit, as to the issuing of an execution. The rule made absolute, (a) Moylan, for the plaintiffs. Du Ponceau and Dallas, for the defendant. (a) The defendant’s counsel, proceeding on the grounds above stated, did not make, on this preliminary question, the objection, that the circuit court has no jurisdiction of a cause, in which both parties are aliens ; an objection that has, repeatedly, been adjudged to be fatal. 861 •421 UNITED STATES CIRCUIT COURT, [April *Russell, for the use of Crucet, v. Union Insurance Co. ( i) Insurable interest.—Abandonment.—Record of court of admiralty. A surety for the payment of the value of a cargo, in case of condemnation by a foreign court, to whom it has been delivered for indemnity, has an insurable interest therein. If the cargo, after effecting an insurance thereon, be taken out of the possession of such surety, by a decree of restitution, he may abandon for a total loss. The record of a foreign court of admiralty is evidence to prove a condemnation; but between assurer and assured, it is only evidence of the cause of condemnation. If the record of a foreign court of admiralty, containing copies of papers, the originals of which are not produced, be read in evidence, without objection, it is too late to object, after the argument has commenced. Covenant, on an open policy for $10,000, at a premium of ten per cent., upon goods on board the ship Hibberts, on a voyage at and from the Havana to New York. The case was this : The ship Hibberts and her cargo, the property of British subjects, were captured by a French privateer, and carried to the Havana. They were there claimed by Mr. C. Frazier (an English merchant), on the recommendation of Captain Vansittart, commanding a British frigate, for the British owners, and an order for restitution was granted by the Spanish government, on security being given for the appraised value (to wit, the ship $9655, and the cargo $22,400), to abide the issue of an appeal, made by the captor, from the order of restitution. The master had been removed, at sea, at the time of the capture, and sent to the United States; but the first and second mates, who went in the ship to the Havana, offered the security ; which was given at their instance, by Mr. Felix Crucet (a Spaniard, constituted their attorney), and the ship and cargo were thereupon delivered to to him, on account of the original owners; but accompanied by a written declaration from Mr. Frazier, “ that ship and cargo were subject to Crucet’s orders, until he shall be finally indemnified for his disbursements for costs of suit, outfits, commissions, &c., and be released from his security.” Crucet having determined to send the ship and cargo to the United States, wrote two letters, dated, respectively, the 7th and 23d of July 1804, to his correspondent, Henry Hill, at New York, in which, after representing the facts above stated, and ordering insurance, he proceeds in these words : “In my letter of the 7th inst. ordering insurance on the ship Hibberts and cargo, I stated fully the footing on which she was delivered to me by the governor and auditor of war, on security and mortgage ; and she now proceeds to your address, with all the papers then mentioned on board, besides the invoice and bill of lading of the cargo. From what are herewith inclosed, you will observe, that the mortgage and security have been given for $22,410, value of the cargo, and $9655, value of the ship Hibberts, to hold that amount of stock, being $32,065, subject to the order of the court here, until the appeal entered to the supreme council of war in Madrid, shall be decided. You will also observe, that my account of advances for lawcosts, repairs, sails, rigging, provisions, advance wages, &c., for the ship, in this port, amounts to $6444.01|; my commission of guarantee, on giving the security and mortgage, five per cent, on $32,065, is $1653.01, and my com- (a) s. c. 1W. 0. 0. 409. 362 1806] PENNSYLVANIA DISTRICT. Russell v. Union Insurance Co. 421 mission for agency and trouble, two and a half per cent., |826.C makes total $8923.0'7f, *and that the last-mentioned sum of 88,923.0'Zf, must be r*422 paid to me here, and I must be entirely freed and released in this city, for the security and mortgage I have given for the ship and cargo, before giving up any part of the proceeds thereof. I have wrote to the concerned in England, apprising them of these circumstances, and that I shall give them due advice, from time to time, of the progress of the appeal. You will, I hope, exert yourself to dispose of the ship and cargo to the best advantage, for the benefit of the concerned, sending the account sales to me here, as soon as convenient, in order to be transmitted to them in England.” The letter of instructions from Crucet to the master of the Hibberts, directed him “to proceed direct to New York, and there deliver the letters, and other papers, to Mr. Henry Hill, Jun., and in his absence, to Mr. Samuel Russell, merchant there, to whom the cargo is consigned. These gentlemen will also take charge of the ship in New York, and will furnish you with money to pay off the officers and crew ; and will pay you any balance that may be due to yourself.” And the invoice was headed, “ Invoice of the cargo on board the ship Hibberts, of London, John Haines, master, bound for New York, and consigned to Mr. Henry Hill, Jun., merchant there, by Felix Crucet, on account and risk of the owners, underwriters or others, in England, or those who may be concerned in said ship and cargo.” On the 13th of August 1804, I. S. Wain, for Samuel Russell (the consignee appointed by Crucet, in case of Hill’s absence), effected the insurance which is the ground of the present action. The ship sailed on the voyage insured ; but was captured by the Leander, off Sandy Hook, on the 16th of August 1804, and sent to Halifax, where she arrived on 31st of August. The vessel and cargo were there libelled in the court of vice-admiralty as prize, and claimed by the master, for Crucet: but by the decree of the court, pronounced on the 10th of October, the claim was rejected, and the judge “pronounced the ship and cargo to be the property of British subjects, recaptured by his Majesty’s ship of war Leander, and decreed the said ship and her cargo to be restored to the original British owners, on payment to the recaptors of one-eighth part of the value thereof, and the claimant to pay costs.” (a) From this decree, the claimant appealed; but the vessel and cargo were delivered, on security, to the agent of the original British owners, and sent by him to England. When the ship was captured, it was notified to the defendants, who agreed to pay a just proportion of the expense of recovering *the property ; but no actual abandonment, or offer to abandon was made, until the 2d of November, when the decree of the vice-admiralty had been received by the plaintiff. On the trial of the cause, the plaintiff’s counsel read to the jury, the policy, the orders of Crucet and his agents for insurance (which had been communicated to the defendants, at the time of effecting the insurance) and the whole of the record of the proceedings in the court of vice-admiralty ; (a) In speaking of the decree of restitution, taking the property from the hands of a Spaniard, who had so fairly obtained a lien upon it, the court was reminded, that although war was declared between Great Britain and France, on the 16th of May 1803, Spain did not become a party to it until the 11th January 1805. 363 423 UNITED STATES CIRCUIT COURT, [April Russell v. Union Insurance Co. but neither the original hypothecation to Crucet, nor the original bill of lading, nor the original invoice, nor any other proof of the special property of the plaintiff in the ship and cargo was produced : and as soon as the plaintiff’s counsel began to argue upon the papers found on board the ship, and spread upon the record (to wit, the hypothecation, bill of lading and invoice) as proof of property, the opposite counsel objected, that although the whole record must be read, it was only evidence of the sentence of restitution. The general defence was then placed on these grounds : 1st. That the abandonment was not made in due season ; which, however, was an objection mentioned, but not strenuously urged. (Park 82, 81, 172 ; 1 T. R. 608.) 2d. That the insurance was effected upon ship and goods, on account and risk of the original British owners, not on the special interest of Crucet-for his use and indemnity. (Park 267-8; 1 T. R. 309.) 3d. That the decree is conclusive to prove that the property was not in Crucet; and the restitution to the original owners was restitution to him as their agent. 4th. That the statements of Crucet and his agents to the underwriters, are not evidence of the facts contained in them upon the present trial; nor are the papers set forth in the record of the court of vice-admiralty, legal or conceded proofs of property. For the plaintiff, it was contended : 1st. That his interest was of an insurable nature. 2d. That the nature of his interest was communicated to the defendants, at the time of effecting the insurance. 3d. That the loss of his possession, on the capture and restitution, was the loss of his lien, and in its effect total. 4th. That the record being read, without previous objection or restriction, every part of it became evidence in itself ; and the property of the plaintiff was proved by it. 5th. That, however, the question of property was a question of fact; and the papers on the record must, at least, be re garded as corroborating the statements of the plaintiff and his agents, to prove his interest in the subject insured. The charge of the court was delivered by the presiding judge, in substance as follows : Washington, Justice.—Though the case involves points of some novelty, and of considerable difficulty, we have so far satisfied our minds, that we *4.94.1 no^ re(lues^ iuryt0 reserve anything *for future consideration, J although either party is at liberty to move for a new trial. The first and principal difficulty is, whether Crucet has proved his interest in the subject insured, by proper evidence. The record of a court of admiralty is always evidence to prove a condemnation; but, certainly, in cases between the insurer and insured, it is only evidence, according to the general rule, to prove the cause of condemnation. On the present occasion, however, the record was read to the jury, without opposition ; and, on this ground alone, we decide it to be an exception to the rule. For if the objection had been made, the plaintiff would have enjoyed an opportunity to supply the proof by other means. The record is, therefore, considered as proof of facts, so far as it exhibits documents, which, if now produced, would be evidence in the cause. This still excludes, on the one hand, letters written by Crucet; while on the other hand, it admits those papers, authenticated by other sources, that show the 364 1806] PENNSYLVANIA DISTRICT. 424 Russell v. Union Insurance Co. extent of his advances, the nature of his engagements, and the lien which he acquired upon the ship and cargo. Upon the evidence, thus admitte 1, Crucet appears clearly to have acquired a contingent interest in the property ; but it was, at first, a question of great doubt with us, whether it was an insurable interest, (a) As to his actual advances of money, there could be no doubt, provided there was (as there is not) satisfactory evidence on that point, independent of what proceeds from himself. But to the right of insurance, the obligation of abandonment, in case of loss, would seem to be an inseparable incident; and we doubted, whether Crucet had anything in the property, which he could abandon upon a loss, and of course, which he was entitled to insure. On reflection, however, we conclude, that upon an abandonment, the underwriters acquire all Crucet’s rights and remedies against the British owners : and as to the manner of insuring his interest, it is clear, that a person having a lien upon a cargo, may cover it by an insurance on goods. It is true, that the assured should communicate to the underwriter the nature of his interest in the subject insured, though it need not be specified in the policy ; and on this ground, a question of fact arises, for the consideration of the jury. If the insurance of the special interest, and not of the principal ownership, made a material difference in the risk, or would have altered the amount of the premium ; and the fact was not sufficiently disclosed to the defendants, the omission would vacate the policy. After this view of the case, it only remains to inquire, whether a loss has happened, which entitles the plaintiff to recover ? He has lost his possession : and although we will not decide, whether the capture and sentence have *destroyed his lien; we think, that as they have rendered it r*49K necessary to pursue the property, through an expensive, troublesome *-and doubtful medium, he has a right to consider the occurrence as a total loss, and to recover the amount of the insurance. Verdict for the plaintiff. (¿) Ingersoll and Ramie, for the plaintiff. E. Tilghman and Dallas, for the defendants. (a) As to what is an insurable interest, see Sansom ®. Bell, post, p. 489; Warder v. Horton, 4 Binn. 529; Wells v. Philadelphia Ins. Co., 9 S. & R. 103; Columbian Ins. Co. ®. Lawrence, 2 Peters 25.1 (&) A motion was afterwards made for a new trial, on the single ground, that there was no proof of property in the plaintiff, except the ship’s papers, spread upon the record of the court of vice-admiralty. An affidavit was filed, stating that Mr. Ingersoll had applied to Mr. Dallas, before the jury were sworn, to admit the record as proof of property, which was refused; and that the application of the record to that purpose (after it had been read), was opposed, as soon as it was attempted. But the motion was rejected, as Judge Washington adhered to the opinion delivered in the charge, and Judge Peters said, that he had decided as well on that ground, as on the corroborative evidence, arising from the sameness of the documents found in the ship, and those described in the communications to the defendants, when the insurance was effected.2 1 Also, Seamans v. Loring, 1 Mason 127; Aldrich v. Equitable Safety Ins. Co., 1 W. & M. 272; Bank of South Carolina v. Bicknell, 1 Cliff. 85 ; Insurance Co. v. Baring, 20 Wall. 159. 2 For a report of the case on the motion for a new trial, see 1 W. C. C. 440. 365 *426 UNITED STATES CIRCUIT COURT, [Oct. ♦OCTOBER TERM, 1806. Present—Washington, Justice, and Peters, District Judge. United States v. James McGill, (a) Murder on the high seas. To constitute the crime of murder on the high seas, the mortal stroke must be given, and the death happen, on the high seas : the defendant had given a mortal stroke to one, in the haven of Cape Frangois, but the deceased did not die, until his removal on shore : Held, that the offence was not cognisable under the 8th section of the act of congress of the 30th April 1790.1 This was an indictment for the murder of Richard Budden, containing three counts. 1st. Charging the murder to have been committed on the high seas. 2d. Charging it to have been committed in the haven of Cape Frangois. 3d. Charging the mortal stroke to have been given on the high seas, and the death to have happened, on shore, at Cape Frangois. The indictment was founded on the 8th section of the penal law (1 U. S. Stat. 113), which provides “ that if any person or persons shall commit, (a) s. c. 1 W. C. C. 463. !It was decided by the circuit court for the principally, on the ground, that the British stat-District of Columbia, in 1809, in the case of ute of 2 Geo. II., c. 21, was in force in that part United States v. Bladen, 1 Cr. C. C. 548, that of the district ceded by the state of Maryland ; where a mortal blow is given within the dis- and Judge Bradley, of the supreme court, re-trict, and death ensues in another jurisdiction fused an application for a writ of habeas corpus, the courts of the district have no power to en- to review the question of jurisdiction, on the tertain an indictment for murder. And the same ground ; holding, that no such question same point was decided in United States v. arose in the cases of McGill, Armstrong or Bla-Rolla, 2 Am. L. J. 138. See also, United States den, the latter having arisen in the portion of v. Armstrong, 2 Curt. 446. But in Guiteau v. the district ceded by Virginia, in which the 2 United States, 26 Alb. L. J. 89, the supreme Geo. IL, c. 21, was, confessedly, not in force ; court of the district arrived at an opposite and the court below, on examination of the conclusion, and the prisoner was executed, record in Rolla’s case, held, that the question without being allowed an opportunity for a re- of jurisdiction could not have arisen and been view of the conflicting cases. It is much to be decided. The fact, however, still remains unfeared, that the enormity of the crime, and the answered, that an important question of juris-popular clamor for the infliction of the death diction, in a capital case, arose, and that a penalty, had great influence in the denial of review of it in the court of last resort was such review. That the decision of a subordi- denied. Guiteau’s crime was a terrible one ; he, nate court, upon the question of its own juris- undoubtedly, labored under an insane delusion, diction, in a case involving the life of a citizen, but not to the extent of legal irresponsibility ; and overruling two former decisions of the he richly deserved his fate ; but the American court of which it is the successor, should not be people could have afforded to await the decisreviewed by the court of last resort, is unheard ion of the court of dernier resort upon the im-of, in the annals of jurisprudence. The execu- portant question of jurisdiction, which Judge tion of a prisoner under the sentence of a Bradley admitted was in his favor, on com-court, without jurisdiction to pronounce it, is mon-law principles. The rules for determining but a judicial murder. Such was the case of whether a British statute, passed since the set-Mrs. Surratt, who was executed under the sen- tlement of the American colonies, extends to tence of a military commission, which was sub- those colonies, are stated in Mr. Wharton’s sequently decided by the supreme court, to have note to 1 DalL 1. They hardly seem to em-been without jurisdiction to try the case. Ex brace the case of Guiteau ; at all events, they parte Milligan, 3 Wall. 2, 118, et seq. In Gui- raise a serious question of jurisdiction. teau’s case, the court sustained the jurisdiction, 366 1806] PENNSYLVANIA DISTRICT. 426 United States v. McGill. upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder, &c., every such offender shall be deemed, taken and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death.” Upon the evidence, it appeared, that thé prisoner was mate of the brig Rover, of which .Richard Budden, the deceased, was master ; that on the 3d of May 1806, while the brig lay in the harbor of Cape François, the prisoner gave the deceased a mortal stroke, with a piece of wood; that the deceased, languishing with the wound, was taken on shore, alive, the next morning : and that he died the day subsequent to that on which he was taken on shore. After a defence on the merits, the prisoner’s counsel {Ingersoll and Joseph Heed} objected, in point of law, that the death, as *well as the mortal blow, were necessary to constitute murder; and that both •-the death and the blow must happen on the high seas, to give jurisdiction to this court, under the terms of the act of congress. These positions were elaborately argued; and the following authorities were cited in support of them. 1 Hale 425-6; 4 Co. 42-6; 2 Hale 188; 3 Hawk. 188, 333; Plowd.; 1 Hale 427; Leach C. L. 723; 4 Bl. Com. 303; 2 Co. 93; 2 Inst; 1 Hawk. 187; East’s C. L. 365; 1 Leon. 270; Cro. Eliz. 196; Leach’s C. L. 432. The Attorney of the District premised, that he was aware of this objection to the jurisdiction; but as there was no judicial decision upon it, he thought it a duty to bring it before the court, for an authoritative opinion; and with that view alone, he meant to submit all the ideas which he could suggest, in maintenance of the jurisdiction. He then considered the case: 1st. On the constitution and laws of the United States, which provide for the definition and punishment of felonies and murders on the high seas; Const, art. I. § 8 (1 U. S. Stat. 113, § 8), which provide for the locality of the commission of the offence, to vest a federal jurisdiction (§ 38) ; which provide for the place and tribunal of trial (Const, art. III. § 2; 1 U. S. Stat. 88, § 29; Ibid. 113, § 8; Ibid. 76, § 9, 11), which provide as to the manner of trial (Const, art. HI. § 2; 1 U. S. Stat. 88, § 29), and which provide, generally, that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. Thus, for every crime, whether of common-law or admiralty jurisdiction, a common-law trial is provided by jury, and a place of venue prescribed; but two things are to be remarked; 1st. That there is no definition of the offence of murder (for instance), with a reference to the common law, any more than to the civil law, which is the law of the admiralty. 2d. That locality, as to the commission of a crime, is no further limited, than as it respects the high seas, or is out of the jurisdiction of any particular state. 2d. On the law of England. The case would be within the constable and marshal’s jurisdiction, at civil law, if the blow and death were both in a foreign country; or the blow in a foreign country, and the death in England (13 Ric. IL, c. 2; 3 Inst. 48; 1 Woodes. 139; 4 Bl. Com. 268). If the blow was on sea, and the death on land, neither the common law nor the admiralty have jurisdiction; nor is it a case under the statute of 28 Hen. VIII, “ for the murder was not committed on the sea; ” but the constable and marshal may try it, by 13 Ric. II. Offences committed upon the seas, 367 42to UNITED STATES CIRCUIT COURT, United States v. McGill [Oct. or in any haven, river or creek, are triable by jury, in a county to be mentioned in a commission, issued under 27 Hen. VIII., c. 4; 28 Hen. VIII., c. 15. The 33 Hen. VIII., c. 33, provides that " persons, who have been examined before the king’s council upon treasons, murders, &c., may *49Rl be tried in any shire to be named *in a commission,” in whatever J shire or place, within the king’s dominions or without, such offence was committed. The 35 Hen. VIII., c. 2, provides for the trial of treasons, committed out of the realm, by a jury, in the king’s bench, or before commissioners. The 11 & 12 Wm. HI. provides for the trial of offences in the colonies. The 2 Geo. II., c. 21, provides for the trial of a murder, where the mortal blow is given on the sea, or out of England, and the death happens in England; or where the blow is given in England, and the death happens abroad. Then, the only statute that provides for the case of the mortal blow and the death both happening abroad, is the 33 Hen. VHI., c. 23, under the modification of a previous examination, &c., before the king’s council: and in England, the admiral’s civil-law jurisdiction, in criminal cases, is at an end. 3d. On the civil law. The judicial power of the United States extending to all cases of admiralty and maritime jurisdiction, ex vi termini, embraces criminal as well as civil cases; and the civil law being the law in such cases, it is to be considered, what the civil law defines to be murder, as to the act and the place. The intent, not the event, constitutes the nrimp, (Dig.. ad Leg. Corn. 1. 14 ; Dom. 211.) The crime is committed, if there be the will to commit it. (Ibid.) In France, where the criminal law is founded on the civil law, if a man strikes another, with intent to kill him, he is punished with death, though the man is not killed. (1 Denizart 585.) The doctrine of all the cases cited for the prisoner, which requires the stroke and the death to be in the same county, or within the same jurisdiction, is an incident to the common-law trial by jury ; where the jury of the vicinage are supposed to know the fact of their own knowledge ; but it clearly has no application, in cases where the jury does not come at all from the place, where any part of the crime was committed. Cess ante rati one, cessat et ipsa lex. The civil law being considered, therefore, as the law of the admiralty, remains under the general delegation of judicial power to the courts of the United States, unless it is expressly modified by statute. So far as respects the definition of murder, it has not been modified ; but the constitution and acts of congress do provide, that all crimes, wherever committed, shall be tried by jury ; and that crimes committed on the high seas, shall be tried in the district where the offender is apprehended, or into which he may first be *4291 brought. (1 LT. 8« Stat. 113, § 8.) (a) If, indeed, this reasoning fails, J *it may be doubted, whether even congress can amend the law, so as (a) After the death of Capt. Budden, McGill had been sent on board the Mediator, an armed vessel, there put in irons, and carried to Baltimore, from which place (without any arrest, or process issuing against him), he voluntarily came to Philadelphia; and surrendered himself for trial to a magistrate. The attorney of the district suggested, that, having been first brought into the district of Maryland, his trial must be there. But, after argument, Judge Peters decided, that the provisions of the act were in the alternative; and that McGill, being first apprehended in Pennsylvania, might be tried, and ought to be tried, here. 368 1806] PENNSYLVANIA DISTRICT. 429 United States v. McGill. to reach cases like the one under consideration, notwithstanding the power “ to define and punish piracies and felonies committed on the high seas Const, art. I., § 8, since the crime of murder (adopting the common-law definition) must be consummate, in the mortal act and consequencej within the jurisdiction of the United States. Peters, Justice.—It is a general rule with me, to abstain ftom the exercise of jurisdiction, whenever I doubt my authority to exorcise it. On the present occasion, it is not necessary to give an opinion, whether the present is a case of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law ; for, confining myself to the 8th section of the penal act, I find sufficient to decide, that, at all events, it is not a case within the jurisdiction of this court. The court can only take cognisance of a murder committed on the high seas ; and as murder consists in both the stroke and the consequent death, both parts of the crime must happen on the high seas, to give jurisdiction ; not one part on the high seas, and another part in a foreign country. Washington, Justice.—The point principally argued by the prisoner’s counsel is so clear, that it can receive little elucidation from argument. The offence, of which we have cognisance, is murder, committed on the high seas. Now, murder is a technical term, of known and settled meaning ; arid when used by the legislature, it imports the same, as if they had said, that the court shall have jurisdiction, in a case of felonious killing upon the high seas. We have no doubt, therefore, that the death, as well as the mortal stroke, must happen on the high seas, to constitute a murder there. But the more important question is, whether the present case remairis unprovided for by the laws of the United States ? The judicial act gives jurisdiction to the circuit court, of “ all crimes and offences, cognisable under the authority of the United States.” (1 U. S. Stat. 78, § 11.) There are, undoubtedly, in my opinion, many crimes and offences against the authority of the United States, which have not been specially defined by law ; for I have often decided, that the federal courts have a common-law jurisdiction in criminal cases: and in order to ascertain the authority of the United States, independently of acts of congress, against which crimes may be committed, we have been properly referred to the constitutional provision, that “the judicial power shall extend to all cases of admiralty and maritime jurisdiction.” But still the question recurs, is this a case of admiralty and maritime jurisdiction, within the meaning of the constitution ? The words of the constitution must be taken to *refer to the admiralty and maritime jurisdiction of England (from whose code and practice we *- u derive our systems of jurisprudence, and generally speaking, obtain the best glossary), but no case, no authority, has been produced to show, that, in England, such a prosecution would be sustained (independent of acts of parliament) as a cause of admiralty and maritime jurisdiction. Nor, ami I disposed to consider the doctrine of the civil law, which has been mentioned, as furnishing a guide, to escape from the silence of our own code, as well as of the English code, upon the subject. Upon the whole, therefore, I am of opinion, that the present is a case omitted in the law ; and that the indictment cannot be sustained. It is some relief to my mind, however, that I have no doubt of the powei’ of congress to provide for such a case. It is 4 Dall.—24 369 430 UNITED STATES CIRCUIT COURT, [Oct. Snell v. Delaware Insurance Co. true, that it would be inconsistent with common-law notions to call it murder ; but congress, exercising the constitutional power to define felonies on the high seas, may certainly provide, that a mortal stroke on the high seas, wherever the death may happen, shall be adjudged to be a felony.(a) Upon this charge, the jury immediately acquitted the prisoner. Snell et al. v. Delaware Insurance Company. (5) Measure of damages.—Evidence of value. On an open policy of insurance, the assured is entitled to recover according to the actual value of the vessel, at the time she was insured, and not according to her prime cost. Evidence of prime cost is admissible, to show her real value, but it is not conclusive against the assured. Covenant, on an open policy for $2500, at a premium of ten per cent., upon the brig Hound, on a voyage from Jamaica to New York. The facts were these : the brig and cargo, belonging to the plaintiffs, sailed on a voyage from New York to Curajoa, and back again ; but, upon the return voyage, she was captured by a British cruiser, and carried into Jamaica, where vessel and cargo were libelled and condemned, on the 31st of July 1804, for a breach of blockade. The master, conceiving that the vessel would be sold, under her value, requested Messrs. Campbell & O’Hara, of Kingston, to buy her in for the owners, which was accordingly done, at the price of 1020?., equal to about $3500. For the price of the vessel, amount of repairs, outfits, &c. (in the whole 1939?. 4s. lie?.), advanced by Campbell & O’Hara, those gentlemen took from the master an hypothecation of the vessel, to guaranty the payment of a bill of exchange, which he drew upon the owners: and on the 9th of August 1804, they requested Messrs. Savage & Dugan to procure insurance upon the vessel for $5000 ; which was effected at the office of the Phoenix Insurance Company, upon the following instructions : *4311 Brig Hound, Thomas W. Fuller, master, at and from Jamaica J to New York. We expect she sailed on or about 16th ult., and is represented as a fine coppered vessel: 5000 dollars. Said vessel was condemned at Jamaica and purchased for the former owners. This insurance was made to cover the sums advanced, whether the same be secured by a bottomry-bond or conditional assignment or otherwise howsoever. Premium five per cent. “ Phcenix Insurance Company.” The owners of the vessel being advised of these proceedings, stated to Savage & Dugan, that the above insurance was not sufficient to cover her real value, and directed a further insurance for $2500, which was effected by the present policy. The vessel sailed from Jamaica, in August 1804; but was never heard of afterwards. At the expiration of a year, the (a) See act 3d March 1825, 4 U. S. Stat. 115 (R. S. § 5389); which, however, has no application where the crime only amounts to manslaughter. United States Armstrong, 2 Curt. 446. (5) s. c. 1 W. 0. 0. 509. 370 1806] PENNSYLVANIA DISTRICT. 431 Snell v. Delaware Insurance Co. Phoenix Insurance Company paid the amount of their subscription; but the defendants refused payment, on which this suit was instituted. At the trial of the cause, the only disputed question was, whether the plaintiffs could go into evidence to prove the actual value of the vessel insured ; or were bound by the price which was paid for her under, the condemnation, at Jamaica? On the first ground, the sums insured upon both policies, would be about the value ; and on the second ground, the amount received from the Phoenix Insurance Company, would be about sufficient to cover the loss, (a) Dallas, for the plaintiffs, maintained the first ground, and cited, 2 Marsh. 529, 534, 535 ; Park 282, 287 ; 1 Emerig. 263 ; Vai. art. 8, p. 64, 56, 136 ; Mill. 247, 251, 264 ; 1 Caines 573 ; 2 Ibid. 20, 23. Rawls and Condy, for the defendants, urged, that the plaintiffs had no right to insure more than the vessel cost them at Jamaica ; that the court ought not to direct the jury to inquire into the value there, beyond the cost; and that the plaintiffs, having recovered the original value from the underwriters, upon the voyage to Curacoa, had no right to resort to that criterion of value on the present occasion. But— The Court were clearly of opinion, that the plaintiffs were entitled to prove and to recover the actual value of the vessel, at the time she was insured. They said, a contrary rule would operate as injuriously to the underwriters, as to the merchant. For, if the merchant could not insure a ship or goods, bought at a depreciated *price, under a forced sale, at their real value; neither would the underwriter, in a case of loss, be entitled to show, upon an open policy, the actual value of the property, independent of a fortuitous enhancement of the price in a foreign market. (5) The jury found a verdict for the plaintiffs, for $2378.32, taking, it is presumed, the value in the outward policy as the basis of their calculation. (a) It appeared in evidence, that the vessel was built in 1802, when she cost $8500; that when she sailed from New York, in May 1804, she was worth between $7000 and $7500; that she was insured on the voyage to Curagoa, in a valued policy, at $7000; and that she had been completely repaired at Jamaica. (&) “ As to the rule of ascertaining the value of a ship, it is agreed on all hands, that the sum she was worth, at the time of her departure, including certain expenses, is to govern, and the court can perceive no reason for establishing this rule, which does not apply to tae case of goods:” per Washington, J., Carson n. Marine Ins. Co., 2 W. 0. 472. 871 [<43* J SUPREME COURT OF PENNSYLVANIA. DECEMBER TERM, 1806. Present—Tilghman. 0. J., and Smith and Braokenbidge, Justices. Lyle -v. Baker et al. Removal of cause. Under the 20th section of the act of assembly of the 24th February 1806, an action may be removed from a court of common pleas to the supreme court, on or before the first day of the term, next after that to which the original writ is returnable. This action was instituted in the Common Pleas of Philadelphia county, at September term 1806; and a habeas corpus was taken out by the defendants, on the 1st of December following, to remove it into the supreme court. Todd, for the plaintiff, alleged that the habeas corpus had issued too late, and moved for a procedendo, on the 20th section of the act of the 24th of February 1806 (P. L. 342) which provides, “that no action shall be removed from any of the courts of common pleas, to the supreme or circuit courts, by consent or otherwise, unless the same is removed on or before the first day of the next term, after the said action shall have been commenced.” After argument in a full court (but Judge Yeates being now absent, owing to indisposition), the Chief Justice, on the 17th of January 1807, delivered the following unanimous opinion. Tilghman, C. J.—The case turns entirely upon the construction of the 20th section of the act, “ to alter the judiciary system of this commonwealth.” Where the intention of the legislature is clearly expressed, it must prevail, whatever may be the consequences. But in the endeavor to discover the legislative intention, we must so construe the law, as not to reject any of its * words : and if there appears to be a contradiction in r* . the expressions, we must seek and pursue, upon the whole, the pre- *• vailing object and intent of the law. Viewing, then, all the parts of the section under consideration, I am of opinion, that an action may be removed to the supreme court, at any time before or on the first day of the term succeeding that to which the original writ is returned. The expression, “ first day of th6 next term, after the action shall have been commenced,” taken by itself, would certainly limit the removal to the first day of the first term: but other expressions (I mean, particularly, the words, “ on or before ”) must also be considered ; and they cannot be satisfied, if the right of removal is 373 434 ’ * SUPREME COURT ‘ ' [Dec. Ozeas v. Johnson. restricted to the first day of the first term. It is impossible to remove an action, before the first day of the term to which the writ is returnable ; as the writ of removal is directed to the court in which the action is brought, and the court can have no knowledge of the action, until its session, at the term next succeeding its commencement. On this view of the subject, we are of opinion, that the intention of the legislature cannot be carried into effect, without so construing the act, as to admit of the removal of an action, on or before the first day of the term next after that to which the original writ is returnable. Procedendo refused. Ozeas v. Johnson, administrator of Foulke, (a) Pa/rtnerslwp. One partner cannot maintain assumpsit against the other, to recover the balance of the proceeds of a partnership adventure, unless the partners have settled their account and struck the balance. Case for money had and received, &c. The plaintiff and Foulke, the intestate, had been jointly concerned in a mercantile adventure from Philadelphia to New Orleans ; but there was no evidence at the trial, that they had ever settled their accounts ; and this action was brought to recover a balance claimed by the plaintiff. The jury, accordingly, gave a verdict in his favor for $320, subject to the opinion of the court, on a point reserved ; to wit, whether the plaintiff, being a partner of Foulke’s, and equally concerned in the adventure, could recover in the present form of action ? On arguing the point reserved, 8. Levy, for the plaintiff, urged that the action of account-render was almost obsolete : that the action for money had and received was in nature of a bill in equity ; that having no distinct court of equity, equity had become, in effect, a part of the common law of Pennsylvania, administered through her common-law courts ; and that the' sense of the legislature, on the subject, was manifested in the 6th section of the act of the 1st of March 1806 (P. L. 562), which provides, “ that in all cases where any suit has been brought in any court of record within this common-*. the same shall *not be set aside for informality, if it appear, that the process has issued in the name of the commonwealth, against the defendant, for moneys owing or due, &c.” (Wats, on Part. 221 ; 2 Ves. 239 ; 1 Bac. Abr. 31, 36, 37 ; Cowp. 795 ; 1 Dall. 428, 211.) Hopkinson, for the defendant, admitted, that if a partnership is dissolved, and the partnership accounts settled, the creditor partner may bring an action on the case for the balance (Wats, on Part. 221, 226) ; but he contended, that as this was the case of a special partnership, in which no account of the joint adventure had been settled, an action of assumpsit could not be sustained. (Wats. 116 ; 2 T. R. 476, 478, 479, 483 ; 2 Caines 293, 296 ; Lamalere n. Gaze, in the circuit court of the United States, 1 W. C. C. 435.) The opinion of the court was delivered by the Chief Justice, on the 1st (a) 3. c. 1 Binn. 191. ^874^ 1806] OF PENNSYLVANIA. 435 Ozeas v. Johnson. of January 1807, who, having stated the facts and point reserved, proceeded as follows : Tilghman, C. J.—It was my wish to support the action, if possible ; because the jury have decided on the merits of the cause. But upon a deliberate consideration of the nature of the action, and the authorities which have been cited, I am convinced, that the plaintiff cannot recover. Money received by one partner, during the partnership, is not received for the use of either, but for the use of both the partners. All that either partner is entitled to, is a moiety of what remains, after all the partnership debts are paid ; and the proper remedy for one partner against the other, to obtain a settlement and payment, is an action of account-render. In short, no case has been cited by the plaintiff’s counsel, to show that an action like the present can be maintained, unless the partners have settled their account and struck the balance, (a) It is, then, of importance to the administration of justice, that the forms of action, which originate in good sense and public convenience, should not be confounded. The defendant has a right and an interest, to insist upon the preservation of the proper form of action, to enforce his partnership contract against him, of which this court possesses no power to deprive him. It is, indeed, most convenient, that partnership accounts should be settled before auditors. It would often be extremely difficult, sometimes it would be impracticable, to settle them by a jury. For these reasons, we think, that plaintiff cannot maintain the present action. (a) An actual settlement must be made and a balance struck, by the act of both parties, before either can be charged in an action of assumpsit. It is not sufficient, that the balance may be deduced from the partnership books. Andrews v. Allen, 9 S. & R. 241. Until a partnership is dissolved, the accounts of the partners liquidated, and a balance struck, one partner cannot sue another in an action of indebitatus assumpsit. Lamalere v. Caze, 1 W. 0. 0. 435.1 1 One partner cannot recover in assumpsit, against another, for advances, until a settlement of the partnership accounts, without proof of an express promise to pay, though the partnership has ceased to exist. Leidy v. Messinger, 71 Penn. St. 17 7. And assumpsit will not lie by one partner, to recover from the other, a balance due upon the settlement of their partnership account, without proof of an express promise. Killam v. Preston, 4 W, & S. 14. Otherwise, if an account be stated and rendered, which is returned without objection, for up- wards of a year. Preston v. Killam, 1 Am. L. J. 168. And see Patton v. Ash, 7 S. & R. 116 ; McFadden v. Hunt, 5 W. & S. 458 ; Roberts v. Fitter, 13 Penn. St. 265 ; Ferguson v. Wright, 61 Id. 258. The law is otherwise, where there is a partnership, as to a single transaction ; in such case, a creditor partner will not be put to his action of account-render. Galbreath v. Moore, 2 Watts 86; Wright v. Cumsty, 41 Penn. St. 102; Finlay v. Stewart, 56 Id. 183; Meason v. Kaine, 61 Id. 335; Cleveland v Farrar, 4 Brewst. 27. 875 *430 SUPREME COURT [Dec. *Bender v. Fromberger. Covenant.—Pleading.—Damages. In an action of covenant, it is sufficient to assign the breach, in terms as general as those in which the covenant is expressed. The breach assigned was, that the defendant was not seised of a good estate in fee, &c.; and the defendant pleaded non infregit conventionem, and performance, with leave, &c., upon which issues were joined: held, that they were sufficient for the court to enter judgment upon. A covenant that one is seised of an indefeasible estate in fee, may be broken, without an eviction. A special warranty in a deed, has not the effect of controlling a precedent general covenant. The covenantee of title cannot recover the value of improvements made by him, after his purchase from the covenantor.1 Covenant. On the trial of the cause, in March term, 1806, it appeared, that the defendant and his wife had sold and conveyed a tract of land to the plaintiff for $2390, by deed, dated the 8th of September 1797; and had therein covenanted that the defendant was lawfully seised of a good, sure and indefeasible estate of inheritance, in fee-simple, in the said land, and had good right, full power and authority, in his own right, to grant and convey the same to the plaintiff in fee. The deed, also contained a special warranty against the grantor and his heirs, and all persons claiming under them. Bender took possession of the premises and made considerable improvements, as well in fences and buildings, as in the cultivation of the soil; so that the property was valued, in May 1802, at $5000. An ejectment was brought, however, at the suit of Benjamin Hilton against Bender, in the circuit court of the United States ; and after a trial, verdict and judgment for the plaintiff, an hab. fac. possess, issued, returnable to May term 1802, upon which the possession was delivered, on the 4th of February 1802. Bender then instituted the present suit, in which the declaration stated the covenant that the defendant was seised of an indefeasible estate in feesimple, and that he had a good right to convey the same to the plaintiff ; and assigned as a breach, that the defendant was not so seised, nor had he good right to convey the said land in fee to the plaintiff: profert of the deed was made, but oyer was not demanded. The defendant pleaded non infregit conventionem, on which issue was joined ; and also performance, with leave, &c., to which the plaintiff replied, generally, non-performance, and issue w as thereupon joined. At the trial of the cause, in March term 1806, upon the recommendation of the court, and with the consent of the parties, a verdict was taken in these terms : “ The jury find for the plaintiff $6232.50 : but if the court shall be of opinion, that the plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of the defendants, then they find damages $2979.14, and six cents costs.”(a) (a) At the trial of the cause, a question of some importance occurred. The defendant claimed under a sale, by the commonwealth, of the premises, as the forfeited estate of Joseph Griswold, who, it was alleged, had been attainted, by proclamation, during the revolutionary war. His counsel, with a view to maintain the validity of his title, offered to read the proclamation in evidence. The opposite counsel proved, that the defendant had due notice of Hilton’s ejectment; took part in preparing evidence for 1 s. p. Brown v. Dickerson, 12 Penn. St. 372 ; 68 Id. 400. And see Lanigan v. Kille, 97 Id Cox v. Henry, 32 Id. 18; Terry v. Drabenstadt, 120. 878 1806] OF PENNSYLVANIA. *437 Bender v. Fromberger. *Before the argument on the point which the' jury had thus submitted to the court, a motion was made in arrest of judgment, on the following grounds : 1st. That the declaration was vicious, inasmuch as it did not assign a legal breach of the covenant. 2d. That there was not, in any part of the pleadings, sufficient matter, for the court to render judgment in favor of the plaintiff. 3d. That it is apparent on the record, that the plaintiff has no cause of action. In support of these objections, it was argued, for the defendant: 1st. That the declaration does not aver that the recovery in Hilton's Lessee v. Lender was upon a title paramount. (Freem. 122 ; Hob. 12 ; 4 Co. 80 ; Cro. Jac. 674-5 ; Hob. 34 ; Cas. temp. Hardw. 271 ; Cro. Eliz. 917 ; Cro. Jac. 315 ; Cro. Eliz. 823 ; Cro. Car. 5 ; Vaugh. 118 ; 2 Vent. 61 ; Cro. Jac. 444 ; 1 Mod. 292 ; 1 Lev. 301 ; 3 Mod. 135 ; 3 T. R. 584.) 2d. That although the modern authorities admit, that it is sufficient, if the breach is assigned in the same general words as the covenant; yet, in that case, it is necessary, that the replication should be more specific and particular. (Cro. Eliz. 544 ; Cro. Jac. 171 ; 4 T. R. 620.) For non infregit conventionem is no plea, unless the breach is assigned affirmatively. (Co. Litt. 303-6.) And it is a rule in pleading, that you cannot go to issue on a general averment of performance. (3 Woodes. 93 ; Cowp. 578.) 3d. That the declaration contains a profert of the deed; and according to the practice of Pennsylvania, oyer must be presumed, *which spreads the deed upon the record. Then, as it will appear, that the deed contains a special *- y warranty, in the conclusion, the antecedent express covenant that the the trial; and had, in fact, acceded to a settlement, in consequence of the eviction ; and they contended, therefore, that the verdict in that ejectment was conclusive to establish a defect of title. After argument (in which the plaintiff’s counsel cited, Cro. Jac. 304; Sid. 289 ; 2 Show. 460; Bradshaw’s case, 9 Co. 60; and the defendant’s counsel cited, 1 Str. 400; 2 Roll. Rep. 6, 28, 287; 8 T. R. 278), the chief justice delivered the unanimous opinion of the court: Tilghman, Chief Justice.—Some difficulty has occurred in deciding this point; but the court have formed an unanimous opinion, that the evidence offered by the defendant, to prove that he had a good title to the land in question, is inadmissible. The title has been already decided in an ejectment, the only mode in which title to land can be directly decided ; and of that ejectment, the defendant had full notice. If the defendant should now be permitted to give his title in evidence; and the jury should find a verdict in favor of it, the plaintiff’s remedy by action of covenant on the deed, would be gone; and if his title should ultimately fail, on the trial of another ejectment, to be brought by him, he would lose both land and money. But on the other hand, if the plaintiff recovers in the present suit, it is in our power, by imposing terms upon him, to do justice to the defendant. Indeed, the plaintiff has made our interference unnecessary, by a voluntary offer to execute a conveyance to the defendant of all his right, upon receiving the damages awarded by the jury. He was not obliged (as the defendant’s counsel allege) to tender this conveyance, before he brought the suit; it is sufficient, if the conveyance is executed, when the defendant pays the damages. We do not decide, whether the defendant might have gone into evidence of the title, if he had given notice to the plaintiff, immediately after Hilton’s recovery, that he was dissatisfied with the verdict, and meant, at his own expense, to prosecute an ejectment against Hilton, to try the question a second time. But, so far from pursuing this course, the defendant’s conduct has shown an acquiescence in the verdict and judgment which Hilton obtained. 377 438 SUPRÊME COURT [Deo. Bender v. Fromberger. grantor was seised of an indefeasible estate, &c., is thereby restrained and controlled. (3 Lev. 46 ; 1 Ibid. 57 ; Rep. temp. Finch 96 ; 2 Bos. & Pul. 13 ; 3 Ibid. 565, 573.) Thus, independent of general authorities, the words “ grant, bargain and sell,” which, by themselves, are declared in an act of assembly, to import a general warranty, have always been considered as qualified and limited, if the deed contains a subsequent special warranty. (1 Dall. Laws, 109.) And on this construction of the deed, the plaintiff had no cause of action, when the suit was instituted. For the plaintiff, it was answered : 1st. That the declaration is correct, in technical form ; for, in covenant, the breach may be assigned in as general words, as the covenant. (6 Vin. 421, pl. 2 ; 9 Co. 60 ; Cro. Jac. 304 ; 6 Vin. 424, pl. 3 ; 2 Show. 460 ; Sir T. Raym. 14 ; Cro. Jac. 369 ; 2 Bac. Abr. 84 ; 6 Vin. Abr. 422, pl. 1 ; Hob. 12 ; 2 Bos. & Pul. 14, in note ; 3 Woodes. 92 ; 5 Bac. 58, 60.) 2d. That the cases cited for the defendant arose upon a covenant for quiet enjoyment, which cannot be broken without an actual eviction ; but a covenant of title may be broken without eviction, upon proof that the grantor had not an estate in fee ; and in an action for the breach, it is neither necessary to allege nor to prove an eviction. 3d. That the declaration as signs the breach on the first covenant only ; and as oyer was never prayed, the second covenant is not even before the court. (2 Saund. 228 ; 1 Ibid. 233 ; 1 Lev. 88 ; 1 Saund. 9, 307 ; 1 T. R. 149 ; 1 Str. 227.) Besides, the covenants, though they cannot be regarded as one (which was the case in 2 Bos. & Pul. 13), are neither inconsistent nor contradictory : the one being a covenant, that the grantor has a good estate ; the other being a covenant of warranty ; the latter is introduced into deeds by the scrivener, of course ; but the former is only inserted upon the agreement and instruction of parties. A special covenant in fact, may restrain an implied covenant ; but here are two express covenants, which may operate together ; and each should be construed most strongly against the grantor. (2 Keb. 10, 15 ; 1 Sid. 289 ; 1 Lev. 183 ; 1 Sid. 215.) The chief justice, after stating the pleadings, and the reasons assigned in arrest of judgment, delivered the opinion of the court, in the following terms : Tilghman, Chief Justice.—As to the first point, although it was opened by the defendant’s counsel, yet, I think, in the course of the argument, it was nearly abandoned. It certainly has not been supported ; for many cases have been produced, proving that it is sufficient to assign the breach in terms as general as those in which the covenant is expressed ; and more than one *of those cases were upon the very same kind of covenants J as the one now in question. The second point amounts, in substance, to this, that the issues were altogether immaterial. It is an undoubted principle, that verdicts, after a trial of the merits of a cause, are, if possible, to be supported. For this reason, many things are good after verdict, which would be bad, on demurrer. Many things, not alleged in the pleadings, may be presumed to have been proved on the trial ; because, unless they had been proved, the jury could not, properly, have given a verdict in the manner they did. One of the authorities (a) cited by the plaintiff’s counsel, went to the point ; that, (a) 5 Bac. Abr., Pleas, tit Immaterial and Informal Issues, p. 59, 60. 878 1806] OF PENNSYLVANIA. 430 Bender v. Fromberger. upon a breach assigned, that the defendant was not seised of a good estate in fee, &c., to which the defendant pleaded non infregit conventionem, and thereupon issue was joined, the issue, though informal, was sufficient for the court to enter judgment on. Now, this is the very same issue as one of those joined in this cause. But let us consider the other issue, joined on the plea of performance, with leave, &c. This kind of plea is peculiar to Pennsylvania, and is unknown in England. It was invented, to save the trouble of special pleading, and has been sanctioned by too long a practice, to be now shaken. In fact, it gives the defendant every advantage which he could derive from special pleading, and saves all the labor and danger: for upon notice to the plaintiff, without form, he may give anything in evidence which he might have pleaded. A great number of issues, in actions of covenant, have been joined precisely as this is ; and if this judgment may be arrested, on account of the immateriality of the issue, all judgments founded on similar issues, are liable to be reversed, on writs of error. In considering the present motion, the court know nothing but what appears on the record. Now, how can they say, that an issue is immaterial, in which the defendant might, for aught that appears, have given evidence of all those special matters, on which the merits of his defence rested. The defendant has contended, that it ought to have appeared, either in the plea or the replication, that the plaintiff had been evicted. But it is to be observed, that if the cases cited by him are examined, they will be found to be most, if not all, of them, on covenants for quiet enjoyment where the covenant was not broken, without an eviction by better title. But a covenant that one is seised of an indefeasible estate in fee, may be broken without an eviction ; and in such case, the jury will give such damages as they think proper. Upon the whole, I am clearly of opinion, that this issue is not immaterial. I will now consider the defendant’s third point, which is, that it appears, by the record, that the plaintiff has no cause of action. *The defend- r*,. ant’s argument is founded on this—that the plaintiff, by making a *• profert of the deed, has brought its whole contents before the court; that part of its contents is a clause of special warranty, by which they say, the general covenant on which the plaintiff has declared, is qualified and restrained ; and of course, that the plaintiff has no cause of action, because the defendant only warranted against himself, and those who should claim under him. To this, it has been answered, by the plaintiff’s counsel, and, I think, truly, that, oyer not having been prayed, no part of the deed appears to the court, but that which the plaintiff has declared on ; and consequently, the court can take no notice of the special warranty.1 But I think it best to deliver my opinion on the effect of the special warranty, that the defendant may not be disquieted, by supposing that he had a good defence, which he has lost the advantage of by a slip of his counsel. I subscribe to the principle laid down by Lord Eldok, in the case of Browning v. Wright (2 Bos. & Pul. 14), cited on the part of the defendant, that where it manifestly appears, from a consideration of every part of the deed, that no more than a special warranty was intended, it shall be so construed, although the deed. 1 Mansley v. Smith, 6 Phila. 228. 979 UO SUPREME COURT [Dec. Bender v. Fromberger. in one part, contains words of covenant of more general import.1 To this rule, I add the two following ones: that, in construing a deed, no part shall be rejected, unless it produces contradiction or absurdity ; and that, in doubtful oases, a deed is to be construed in favor of the grantee. The deed in question conta.ns a conveyance by the words grant, bargain and sell; a covenant that the grantor is seised of a good estate in fee-simple, subject to no incumbrances, but a certain ground-rent; and a covenant of special warranty. It has been the prevailing opinion, that by virtue of an act of assembly, passed in the year 1715 (1 Dall. Laws, 109, § 6), the words “grant, bargain and sell,” have the force of a general warranty, unless restrained by subsequent expressions. To qualify the general warranty, it has been the custom of scriveners, to insert a clause of special warranty. And, I believe, it is inserted, pretty much as a matter of course, unless in cases where the parties agree on a general warranty. I believe too, that in Pennsylvania the greater part of conveyances have, as Mr. Ingersoll has stated, been made with special warranty. Still, it remains to be considered, what was the intent of the grantor, in the present instance ? The defendant contends, that his intent was, to give no more than a special warranty, because the clause of special warranty is inconsistent with and contradictory to a general warranty. Now, in this, I cannot agree with him. It is certain, that the special warranty and more, is included in the general one. It is an inaccurate mode of conveyancing; but there is no absurdity or contradiction in making one covenant against yourself and your heirs, and another against all -1 *mankind. The special warranty was unnecessary, and is to be attributed to the ignorance of the scrivener, who, probably, thought it was a matter of course, without intending to affect the more general preceding covenant; or, perhaps, he might think it necessary to guard against the effect of the words “ grant, bargain and sell,” used in the first part of the deed; because the estate was subject to a ground-rent, as appears from the general covenant, in which it is said, that the estate is free from all incumbrances, except the said ground-rent. It has been urged, that it is all one covenant, because the special warranty is connected with the preceding general covenant, by the words “ and that.” It is very common to connect a covenant of warranty and a covenant for further assurance by these expressions. But what I rely on, is, the intent of the parties, manifested in the deed, considered altogether. I do not conceive it is possible, for a man of common sense to declare, that he engages that he had a perfect estate in fee-simple, and had a good right to convey such perfect estate, without intending to warrant to a greater extent than against himself and his heirs. There are no technical expressions, but such as every man understands, which is not the case with a special warranty. To a common man, it is not very intelligible, that there should ever be occasion to warrant and defend against himself and all persons claiming under him ; for it is very natural to suppose, that when a man has used words sufficient to convey his estate to a third person, he has necessarily done enough to bar himself and all persons claiming under him, without calling in the aid of a special warranty. In short, the insertion of the clause of special warranty is generally the act 1 An express covenant qualifies and restrains the generality of an implied one. Weiser v. Weiser 5 Watts 279. eida, 11 S. & R. 109. But see Funk v. Von* 380 1806] OF PENNSYLVANIA. 441 Bender v. Fromberger. of scriveners; but I presume, that no scrivener could be so stupid as to insert a covenant, that “ the grantor was seised of an indef »asible estate in fee,” unless he had been told by the parties, that a general warranty was intended. I am, therefore, of opinion, that the special warranty in this deed, has not the effect of controlling the precedent general covenant, and that judgment should be entered for the plaintiff. It is proper to add, that after the conclusion of the argument last night, I consulted with my brother Yeates, who concurs with my opinion, both with respect to the pleadings and the construction of the deed. Same Cause. The case now came before the court, on the point submitted by the verdict ; and this turned upon the question, whether, in an action of covenant, founded upon a deed, in which the grantor covenants that he has a good title to the land conveyed, the grantee, being evicted, is entitled to recover the price of the premises, *at the date of the deed, or the improved 2 value, at the time of the eviction ? *• For the plaintiff, it was contended, that the measure of damages on all covenants, is the amount of the loss actually sustained, and though it would seem from the old books, that, in cases of warranty, the recovery is to be according to the value of the land, at the time of the warranty ; it was a recovery, in those cases, of land only, and not (as in this case) of money for damages. This position was illustrated and supported by an elaborate argument, and these authorities: 2 Bl. Com. 299, 300, 304; 22 Vin. 145-6, “Vouchee;” 3 Bl. Com. 156; 1 Bac. Abr. 526 ; 3 Woodes. 91-2; 1 Ld. Raym. 107; 2 Ibid. 1126; T. Raym. 77; 30 Edw. III., 14, 6 ; 19 Hen. VI., 45-6; Ibid. 61; Sayer on Dam. 3, 4, 5, 6; 2 Caines 111; Bay 18, 263. For the defendant, it was taken as conceded ground, that on a warranty, strictly speaking, the value of the land, at the date of the warranty, could alone be recovered, according to the law of England; and it was contended, that there was no legal or equitable distinction between that case and the general case of covenant, further than the enlargement of the remedy; which was limited by the former, to a recovery in land; but by the latter, the personal estate also becomes liable. 2 Bl. Com. 304; Godb. 152; 1 Johns. 379. The opinion of the court, upon great consideration, was delivered, at an adjourned session, on the 17th of January 1807. The chief justice, after stating the facts, proceeded in the following terms : Tilghman, Chief Justice.—The question submitted to us by the jury, has never been decided in this court. It is of importance, and has been well argued. It may be taken for granted, that on a strict warranty, where the remedy for the party who loses the lands, is either by voucher, or writ of warrantia chartae, the recovery is only according to the value of the land, at the time the warranty was created. This is conceded by the plaintiff’s counsel, and very properly; for many authorities were cited directly to the point. But this kind of warranty, which is a covenant real, has long ceased, and has been succeeded by the covenants personal, introduced into modern conveyances. The latter have two advantages: the remedy by action of covenant is more easy in its form, and more comprehensive in its effects; 381 442 ' SUPREME COURT' [Dec. Bender v. Fromberger. for it extends to the personal property of the warrantor, in the hands of his executors ; whereas, the ancient recovery in value, was confined to the land. I know of no case in England, where it has been decided, whether a recovery in an action of covenant, could be carried so far as to include damages for improvements made after the purchase; but I must suppose, that Sir William *Blackstone was of opinion, that such damages could *not be included, J otherwise, he ought certainly to have mentioned it, when he was comparing the ancient warranty with the modern covenants, which, he says, have superseded them. His expressions are these : “ If he covenants for his executors and administrators, his personal assets, as well as his real, are pledged for the performance of the covenant, which makes such covenant a better security than any warranty, and it has, therefore, in modern practice, totally superseded the other.” A general warranty is as comprehensive in its expressions, as any words made use of in modern covenants. It undertakes to defend the land to the warrantee, his heirs and assigns, against all persons whatever. It is in its nature a covenant real; and since the recovery on it extended no further than the value of the land, at the time of the warranty made, the inference is very strong, that in these personal covenants, which have succeeded to it, the extension shall be no greater. But the plaintiff’s counsel contend, that the reason why the recovery in value, on the ancient warranty, was confined to the value, at the time of its creation, is, because in real actions, no damages can be recovered. This reason is unsound. The value, at the time of the voucher, might have been recovered, without recovering damages ; and this is evident from some of the cases which have been cited; particularly, the case of Ballet v. Ballet; where it is decided, that in a warrantia charts, if there be new buildings, of which the warranty is demanded, which were not at the time of the warranty made, the defendant must take care to show the special matter, and enter into the warranty, only for so much as was at the time of the making of the deed, otherwise, the plaintiff will recover, according to the value, at the time of entering into the warranty. The true reason, therefore, appears to be, that the intention of the parties was so understood, that the warranty should be limited to the value of the land, at the time of executing the deed. The plaintiff’s counsel cited a case from 22 Vin. Ab. 145, pl. 5, in order to prove, that upon the implied warranty, which arises on an exchange of land, the recovery in value, after eviction, is according to the actual loss sustained. As this seemed to be at variance with the general principles of warranty, I have examined it, since the argument of the cause, and find that the case was not properly explained. The words of the abridgment are as follows : “ If a man recovers in value, upon a warranty in law, on an exchange, he shall have in value, according to the value which he has lost.” In support of this, the Case of Bustard, 4 Co. 121, is cited. In the first place, it is to be remarked, that in the marginal note to pl. 6, in the same page of Viner, it is said, that the same case is reported in Cro. Eliz., Moore, and Yelverton, in neither of which is such point mentioned ; and it is certain, from my Lord Coke’s report, that the decision must have been extra-judi-’ f°r Bustard's Gase turned on a different point. *Bustard being evicted of the land received by him in exchange, entered upon that which he had given in exchange, by virtue of the implied condition in law which is annexed to an exchange ; and a re-entry was made on him; 382 1806] OF PENNSYLVANIA. 444 Bender v. Fromberger. in consequence of which he brought an action of trespass ; and whether he could recover in that action, was the question: so that the court had nothing to do with the value of the land. But according to my Lord Coke’s account of it, what they did decide concerning the value, is not applicable to the point now before the court. The decision is—that if A., who has received three acres in exchange, is impleaded for one acre, and vouches B. from whom he received them, and then the demandant recovers the one acre, A. shall recover in value from B., according to the loss, that is, one acre ; but not a word is said concerning the time, to which the value of this acre is to relate. And that is the only question now under consideration. It has been contended, that the true measure of damages, in all actions of covenant, is the loss actually sustained. But this rule is laid down too generally. In an action of covenant for non-payment of money on a bond or mortgage, no more than the principal and legal interest of the debt can be recovered, although the plaintiff may have suffered to a much greater amount by the default of payment. The rule contended for by the plaintiff’s counsel, in its utmost latitude, applied to covenants like the present, would, in many instances, produce excessive mischief. Indeed, the counsel have, in some measure, given up this rule, by confessing, that when buildings of magnificence are erected to gratify the luxury of the wealthy, it would be unreasonable to give damages to the extent of the loss ; but the ruinous consequences would not be less to many persons, who have sold lands, on which no other than useful buildings have been erected. The rise in the value of land, not only in towns on the sea coast, but in the interior part of the United States, is such, that it can hardly be supposed, any prudent man would undertake to answer the incalculable damages, which might overwhelm his family, under the construction contended for by the plaintiff. I have taken pains to ascertain the opinion of lawyers in this state, prior to the American revolution, and I think myself warranted in asserting, from the information I have received, that the prevailing opinion, among the most eminent counsel, was, that the standard of damages was the value of the land, at the time of making the contract. The title of land rests as much within the knowledge of the purchaser, as the seller ; it depends upon writings, which both parties have an equal opportunity of examining. If the seller makes use of any fraud, concealment or artifice, to mislead the purchaser, in examining the title, the case is different, he will then be answerable for all losses which may ensue. Cases have been cited from the civil law ; but I throw them out of view, because this case can be decided only on the principles of the common law. *Cases have also been cited from the law reports, in the states of [-*¿45 South Carolina and New York. Though they are not authority in this L court, yet we shall always be happy to receive information of the opinions of the learned judges in o;ur sister states, and always treat them with due respect. Upon the point now in question, it seems, there is a difference of opinion. In South Carolina, it has been held, that the plaintiff is entitled to recover, according to the value at the time of the action: in New York, that he can only recover according to the value at the time of the contract. On these cases, I will only remark, that the opinions of the judges in South Carolina, having been given during the hurry of a jury trial, do not appear to have been founded on such mature deliberation as those of the New 383 445 SUPREME COURT [Dec. Bender v. Fromberger. York judges, who made their decision in the supreme court, sitting in bank. Upon the whole, I am of opinion, that, by the true construction of the covenants in the case before us, the plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of John Fromberger, and therefore, that judgment be entered for $2979.14, and costs. I am authorized to say, that Judge Yeates, whose absence is occasioned by sickness, concurs in this opinion. Smith, Justice.—The question now to be decided by this court is of great importance. I understand, that it has long been discussed among the most eminent counsel in Pennsylvania, and opinions have been given by some of them ; but that it never has received a judicial decision. I believe, on inquiry, that it never came before any court in Pennsylvania, until the 24th of May 1804, when it came before the circuit court, holden for the county of Northumberland, by Judge Brackenridge and myself, in the case of William Bonham v. John Walker's administrator. We said, that “ it is an important question, and it is proper that it should receive a solemn decision in bank ; we, therefore, propose, that the measure of damages should be left to the jury, on each of these grounds, which is done accordingly.” The jury found “a verdict for the plaintiff, for $1092.17 damages, on the ground of the original purchase-money ; and on the ground of the value of the land at the time of the execution (eviction) $1602.21.” After my return, I was induced to make diligent inquiry, whether the point had ever been decided, and what had been the general opinion of eminent counsel on it, and the result was that expressed by the chief justice. Upon a very attentive perusal of that cases on the subject; the notes of which, taken by me then, and annexed to that case, are now before me : they did not, in my opinion, warrant me in drawing a different conclusion ; but I saw difficulties, whether the question was decided one way or the other, *44«! made me anxious to hear it deliberately argued: ready to *alter -1 my opinion, if I should discover, that it was not well founded ; or if the opposite opinion should be supported by law, be more conducive to the general interest, and be more agreeable generally to the intentions of the parties to such contracts. I have heard it very well argued. If the very well-arranged and able argument of the ingenuous young gentleman who began (Mr. Sergeant) has not been able to shake the opinion which I had formed, I am induced to believe that it is well founded, on solid principles of law. I must, therefore, adhere to it upon the present occasion ; it not being suggested that there was any fraud or concealment on the part of the vendor, nor any knowledge, when he sold, of any defect in his title. Had any of these circumstances occurred, I should be of opinion, that he would be liable to the amount of the loss. Although the vendor, on a covenant like that in question, be liable to damages only to the value at the time of the deed ; yet, he may enter into such a special express covenant, as will make him liable to the value at the time of eviction, and so much will the vendee, on such event, be entitled to. In the present case I agree, that judgment be entered for the plaintiff for $2979.14. 384 1806] OF PENNSYLVANIA. 446 Dutilh v. Gatliff. Brackenridge, Justice.—I concur in the decision of the other judges, for the reasons which have been assigned. Judgment to be entered in favor of the plaintiff, for $2979.14, and costs, (a) Lewis, Rawle and J. Sergeant, for the plaintiff. McKean (Attorney-General) and Ingersoll, for the defendant. Dutilh v. Gatliff. Ma/rime insurance.—Abandonment. If the vessel of a neutral be captured by a belligerent, and libelled as prize of war, though subsequently acquitted, the assured may abandon for a total loss. A vessel having been captured and abandoned to the underwriters, the assured is entitled to recover for a total loss, notwithstanding her subsequent release, and arrival in port before the commencement of the suit. An American vessel, insured at and from Philadelphia to Havana, was captured by British cruisers, carried into port by them, and there libelled as prize; a decree of restitution was subsequently obtained, after which, though before actual restitution, and without knowledge of the decree, she was abandoned; the insurance was effected, and the abandonment made by the agent for the owners, one of whom was with her, at the time of the decree of restitution: Held that the assured might recover as for a total loss. The following case was stated for the opinion of the court: “ Case. On the 24th of September 1799, the defendant, Samuel Gatliff, underwrote $750 upon a policy of insurance on the schooner Little Will, belonging to John Dutilh and Thomas Lillibridge, for whom the plaintiff was agent, on a voyage at and from Philadelphia to Havana. On the 26th of September 1799, the Little Will sailed on her voyage from Philadelphia to Havana, and on the 8th day of October following, she was captured by three British privateers, and carried into the port of Nassau, New Providence, where she arrived on the 13th of the same month. Upon her arrival in Nassau, the said schooner was libelled in the admiralty court, and on the 9th day of November following, was regularly acquitted; and in the whole, she remained thirty-seven days at Nassau, during thirty-five of which, she was in custody of the captors; but the fact of her acquittal was not known *to the plaintiff, until subsequent to the abandonment hereafter men- L tioned: although it was known to John Dutilh, one of the owners and supercargo, who was with her at Nassau. On the 13th day of November, the plaintiff wrote the letter of abandonment, inclosing the papers therein referred to, which was received by the defendant the same day. On the 20th November, the said schooner sailed from Nassau for Havana, where she arrived on the 21st of the same month, and sold her cargo, except three boxes, plundered at New Providence. Afterwards, the said schooner sailed from Havana for Philadelphia, where she arrived on the 26th or 27th of February, in the year 1800, with a cargo of sugars, oh which freight became due, and was received by Stephen Dutilh, for the benefit of those who were entitled to it. Each party refusing to accept the schooner, she was sold for (a) See, on the subject of covenants of title, 2 Wheat. 62, note e. '4 Dall.—25 885 ; 4A1 SUPREME COURT Dutilh v. Gatliff. [Dec. wharfage, and the whole proceeds of sale applied to the payment thereof. The schooner Little Will was American property, as warranted. “ The question for the court is, whether the plaintiff is entitled to recover as for a total loss ? If the court shall be of opinion, that the loss was total, then it shall be referred, in the usual form, to three persons, to be appointed by the court, to ascertain what is due, after the legal and just deductions. If the court shall be of opinion it was not a total loss, it shall, in like manner, be referred to three referees, or any two of them, to be appointed by the court, to ascertain the partial loss, to which the defendant is liable.” J. Ingersoll, for the plaintiff. W. lewis, for the defendant. After argument, the chief justice delivered the unanimous opinion of the court. Tilghman, Chief Justice.—On the case stated, the question submitted to the court is, whether the plaintiff is entitled to recover for a total loss. In resolving this question, I shall divide it into two points. 1st. Did there ever exist a total loss ? 2d. Supposing, that there once existed a total loss, has any circumstance occurred, which excludes the plaintiff from recovering for more than a partial loss ? I. The case before us includes one of the risks expressly mentioned in the policy, a taking at sea. But it has been objected that this taking was not by an enemy; and that when a belligerent takes a neutral, it is to be presumed that the taking is only for the purpose of searching for the property *44«1 his enemy, or goods contraband of war; and that, in the end, jus- J tice will be done to the *neutral. To a certain extent, there is weight in this distinction, but it must not be carried too far. At the time when the capture in question was made, the United States acknowledged the right of the British to detain their vessels, for the purpose of a reasonable search. The bare taking of the vessel, therefore, could by no means constitute a loss; and if, under suspicious circumstances, she should be carried into port, to afford an opportunity for a complete investigation, perhaps, even that ought not of itself to be considered as a total loss, (a) On this, however, I give no opinion. But when the captor, having carried the vessel into port, and completed the examination of the cargo and papers, instead of discharging her, proceeds to libel her as prize, I.think the loss is complete. The property is no longer subject to the command of the owner, and it is unreasonable, that he should wait the event of judicial proceedings, which may continue for years. The case of an embargo is lesss trong ; because, there, the confiscation of the property is not intended, and a temporary interruption of the voyage is all that, in general, is to be apprehended; yet the assured is not obliged to await the result, but may abandon, immediately on receipt of intelligence of the embargo. Not many judicial decisions have been produced on the point in question: where principles are strong, it is sufficient that there have been no decisions to the contrary. It appears, however, that in the state of New York, the precise point has been determined. (a) A mere arrest and detention of a neutral vessel, by a belligerent, for the purpose of legal adjudication, will not authorize an abandonment. Duncan ®. Koch Wall, 0. 0. 87. 386 1806] OF PENNSYLVANIA. Dutilh v. Gatliff. 448 In the case of Mumford, v. Church, decided in the supreme court of New York, July term 1799 (1 Johns. Cas. 147), the assured recovered for a total loss, where there was a capture, carrying into port, and libelling by a British captor, although, after the abandonment, the property was restored. It is necessary, that some general rule should be established, some line drawn, by which the assured may know at what time he has a right to abandon. In most cases, the voyage is extremely injured by proceedings in the court of admiralty, and the event is doubtful. For it cannot be denied, that of late years, such extraordinary occurrences have taken place in war and politics, as have very much affected the principles and practice of foreign courts of admiralty. Whatever may be said of the law of nature and nations, and the immutable principles of justice, we see very plainly that the courts obey the will of the sovereign power of their country; and this will fluctuates with the circumstances of the times. I am, therefore, of opinion, that both by the words and spirit of a policy of insurance, the assured may abandon, when he receives intelligence of the libelling of his vessel. II. This brings me to the consideration of the second point : Has any circumstance occurred, which limits the plaintiff to a recovery for only a partial loss ? It is contended, that such an event has occurred : that the vessel was acquitted by the decree of the court of admiralty ; that after acquittal, she proceeded on her voyage, and that one of the *owners was on the r*. ._ spot, and knew of the acquittal. I do not think there is much weight in the circumstance of one of the owners being on the spot; because the general -agent of all the owners was in Philadelphia. This general agent effected the insurance, and conducted all the business with the underwriters, and the owner, who was in New Providence, gave him intelligence of what occurred, from time to time, and by no means intended, from anything that appears, to restrain him from making an abandonment. It is true, that the vessel proceeded on her voyage, after she was restored ; but it is not stated, nor can the court presume, that any of the owners acted in a manner inconsistent with the abandonment made by their agent. It was proper, at all events, to pursue the voyage, for the benefit of whoever might be interested in it. This is the usual practice, and a practice authorized by the policy, and Very much for the advantage of the underwriters. The only difficulty in the case before the court, arises from this circumstance ; that before the action was brought, the vessel was restored, and even at the time of the abandonment, there was a decree of acquittal, although restitution does not appear to have been actually made, until some days after. The counsel for the defendant have relied much on the opinion of Lord Mansfield in the case of Hamilton n. Mendez (2 Burr. 1198), to establish this principle, that a policy of insurance, being in its nature a contract of indemnity, the plaintiff can recover no more than the amount of his actual loss, at the commencement of the action. There is no doubt of the soundness of the principle : I mean, that a policy is a contract of indemnity: the only question is, at what period the rights of the parties are to be tested by this principle ; whether at the time of abandonment, or of the commencement of the action. I have considered attentively the case of Hamilton v. 1 And see Slocum v. United Ins. Co., 1 Johns. Dickey v. New York Ins. Co., 4 Cow. 222 ; s. a Cas. 151; Livingston v. Hastie, 8 Id. 293; 8 Wend. 658. 387 449 * “ ‘SUPREME 30URT ' [Dee. Dutilh v. Gitliff. Mendez: It must be obvious to every one, that the decision in that case was perfectly right. It was simply this : that a man shall not be permitted to abandon, and recover for a total loss, when he knew, at the time of his offer to abandon, that his property, which had been lost, was restored, and the voyage very little injured. But in reading the opinion of Lord Mansfield, we find a want of accuracy, with which that great man was seldom chargeable. Sometimes, it appears as if he thought the period for fixing the rights of the insurers and assured, was the commencement of the suit; sometimes, the time of abandonment; and sometimes, he even seems to extend his ideas so far as the time of the verdict; but finally, he explicitly declares, that he decides nothing but the point before him. He seems to have felt a little sore, at the improper application of some general expressions used by him, in the case of Gross v. Withers. Anxious to cut off all pretence for doing the same in Hamilton v. Mendez, he has taken too much pains to avoid the possibility of misrepresentation: hence, his argument, considered in the detail, is not altogether clear and consistent. Upon the whole of this case of Hamilton n. Mendez, I think it most safe to confine its authority to the point *. *actually decided, which was very different from that we are now con-J sidering. Some period must be fixed for determining the right of the parties : to limit it to the time of commencing the action, would be of little service to the insurers; for the law being once so established, an action would be brought in every instance, on the first default of payment. The time of abandonment seems the most natural and convenient period; because the assured must make his election to abandon or not, in a reasonable and short time, after he hears of the loss, and the property, being transferred by the abandonment, can never after be reclaimed by the assured Want of mutuality is want of justice : there is no reason why the assured, should be bound, but the insurer left free to take advantage of events subsequent to the abandonment. It has been contended by the plaintiff’s counsel, that the right to abandon would not have been affected, even if the property had been restored, at the time of abandonment, because the restitution was unknown to the plaintiffs As to this, I give no opinion. It is unnecessary, because it is stated that the vessel remained in the custody of the captors, at the time of abandon-« ment. The defendant’s counsel have urged, that this was the fault of the master, or of one of the owners, who was at New Providence ; because, after a decree of acquittal, a writ of restitution might have been sued outs But it not being stated, that there was any fault or negligence in the master or owner, I do not think, that the court can infer it. It being stated that the vessel remained in the custody of the captors, we must presume that the custody was legal. Whether for the purpose of giving the. captors an opportunity of entering an appeal, or for what other purpose it .was, that the restitution was delayed, we are at a loss to determine. But as restitution was not actually made, and as the plaintiff was ignorant, even of the decree of acquittal, his right to abandon remained unimpaired. Upon the whole, we are of opinion, that the plaintiff is entitled to recover for a total loss. Judgment for .tho, plaintiff. («) (a) Since the decision of this case, the. case of Rhinelander Insurance Company - {aHiZ .bl K .v ; lit JSiuJ 388 1806] OF PENNSYLVANIA. 450 Moliere’s Lessee v. Noe. Judicial sale. The purchaser of lands of an intestate, sold by an order of an orphans’ rourt, holds them discharged from the lien of a judgment obtained against the intestate in his lifetime. Ejectment, for a house and lot in Union street, between Second and Third streets. The plaintiff’s title was briefly this : George Fudge was seised of the premises, in the year 1796, when Moliere, as the assignee of one Muston, instituted three suits *against him, upon several bonds, returnable to March term 1796, in which judgments were regularly L obtained. Fudge died, and the judgments were revived against his administrators, by writs of scire facias, returnable to December term 1799 ; judgments were thereupon entered, on the 27th of December; writs of fi. fa. issued, returnable the 28th of December, and were returned, “ levied upon real estate, inquisition held, and property condemned.” On the 15th of January, a vend. exp. issued, returnable to March term 1800, which was returned, that the premises had been sold to Moliere for $1000 ; and on the 3d of March 1800, sheriff Penrose executed a deed to the purchaser. The defendant was tenant to Mary Beers, who claimed the premises under a sale made by order of the orphans’ court, upon the petition of the administrators of Fudge—the intestate having left two minor children. The petition was presented in May 1797, with a list of the creditors of the estate, in which Moliere’s judgments were referred to ; the order of the orphans’ court was made in June 1797 ; the sale was effected in July; and the administrators executed a deed to Mrs. Beers, for the premises (reciting the proceedings of the orphans’ court), in consideration of $1200, on the 10th of August 1797. Subsequently to the sale, and receipt of the money, both of the administrators became insolvent. On the trial of the cause, at nisi prius, in July 1806, two grounds of defence were taken : 1st. That Moliere had allowed Mrs. Beers to purchase and repair the estate, without giving her notice of his claim, though he was apprised of the order of sale by the orphans’ court, and the proceedings under it, 2d. That upon the sale of the estate, by order of the orphans’ court, it was discharged from all prior judgments, in the hands of the purchaser. On the first ground, both the Chief Justice (who sat at nisi prius} and the jury (as appeared from the charge and the verdict) were in favor of the plaintiff ; and the second ground was reserved for the decision of the court in bank. The point reserved was argued on the 10th of December 1806, by Levy, McKean, 8. Levy and J. Sergeant, for the plaintiff, and Ingersoll and Hopkinson, for the defendant : and the following sections of several acts of assembly became material in the discussion. of Pennsylvania (4 Cr. 29), was argued in the supreme court of the United States, at Washington, in February term 1807, upon a writ of error from the circuit court of the Pennsylvania district : and that court (consisting of Marshall, Chief Justice, Chase,. Johnson and Livingston, Justices) were of opinion, that in the case of neutral, as well as of belligerent, property, the assured ha,s a right to abandon, and to claim for a total loss, as soon as the vessel is arrested, taken possession of, and carried out of the course of her voyage. 389 451 SUPREME COI ÍIT Moliere v. Noe. [Dec. By the 6th section of the act of 1705 (Hall & Sellers, 34),(a) it is provided, “ That if any person or persons shall die intestate, being owners of lands or tenements within this province, at the time of their death, and leave lawful issue to survive them, but not a sufficient personal estate to pay their just debts and maintain their children, in such case, it shall be lawful for *ak.0-\ the *administrator or administrators of such deceased, to sell and J convey such part or parts of the said lands or tenements, for defraying their just debts, maintenance of their children, and for putting them apprentices, and teaching them to read and write, and for improvement of the residue of the estate, if any be, to their advantage, as the orphans’ court of the county where such estate lies shall think fit to allow, order and direct, from time to time.” By the 21st section of the act of April 1794 (3 Dall. Laws, 530), it is provided, “ that no lands, tenements, and hereditaments, so as aforesaid sold by the orphans’ court, shall be liable, in the hands of the purchaser, for the debts of the intestate.” By the 2d section of the act of April 1794 (Ibid. 523), it is provided, “ That no debts of deceased persons, except they be secured by mortgage, judgment, recognisance or other record, shall remain a lien on their lands and tenements, longer than seven years after the decease of such debtors, unless, &c.” By the 4th section of the act of April 1797 (4 Dall. Laws, 157), the same limitation is imposed on the lien of debts, unless a suit is brought, or a statement of the demand filed in the office of the prothonotary of the county where the lands lie, within the seven years. For the defendant, it was insisted, that, by the act of April 1794, the purchaser, under an order of the orphans’ court, held the land discharged of all the debts of the. intestate, whether secured by judgments or not. The word debts includes judgments ; and the legislature generally uses it, in that comprehensive sense. Hall & Sellers, 34, § 3, 6 ; Ibid. 132 ; 3 Dall. Laws, 522, § 1 ; Ibid. 523, § 1, 2 ; Ibid. 529, § 19 ; Ibid. 527; 4 Ibid. 157. This construction, however, does not extend to mortgages, which are a specific lien created by the act of the party ; but only to judgments, to which, as the law gives the lien, the law may, also, take it away. 1 Dall. 481, 486. The words of the act are, then, clearly in favor of the purchaser; and it is not incumbent upon him to look to the application of the money. 9 Ann. c. 14, § 1 ; Lov. on B. 37 ; 2 T. R. 645 ; 2 Fonbl. 153. For the plaintiff it was answered, that the object of the act of 1794, was to provide for the sale of real estate, in order to pay debts at the instance of creditors, who had not obtained judgments, and therefore, could not themselves compel a sale of the land ; that from the year 1705 to the year 1794, the sale was not accompanied with any condition, that the purchaser should hold the land free from the debts of the intestate ; and the inconvenience to be remedied by that provision, arose from the latent claims, (a) Yeates, Justice.—It has often been decided at nisi prius, that under this act, the orphans’ court might order a sale of lands, although there were no minor children in the case. 390 1806] OF PENNSYLVANIA. Moliere v. Noe. 452 referred to in 1 Dall. 481, not from judgments, mortgages, or jther liens of record; and that words, however general, must *often be con-strued particular, in order to attain, without exceeding, the real object L of the legislature. Levinz v. Will, 1 Dall. 430; Plowd. 109, 305 ; 2 East 135. On the 20th of December 1806, the chief justice delivered the opinion of the court in the following terms. Tilghman, Chief Justice.—This cause was tried before me at a court of ■Nisi Prius, held last July, when the point was reserved, which is now to be decided. Without entering into an unnecessary detail of facts, the question may be stated to be simply this : whether the purchaser of lands of a deceased person, sold by order of an orphans’ court, since the 19th of April 1794, holds them discharged from the lien of a judgment, obtained against the intestate in his life. Ever since the year 1705, the orphans’ court have had power to order sale of such part of the land of persons dying intestate, as they judged necessary, for the payment of their debts, education and maintenance of their infant children, and improvement of the residue of the estate. But it was not until the passing of the act of the 19th of April 1794 (2 Dall. Laws 54), that any express provision was made with respect to the manner in which the purchaser should hold the land : I mean, whether it should be liable or not, in his hands, to the debts of the intestate. Yet, although there was no legislative provision, the public mind had, probably, received an impression from the sentiments of the late Chief Justice Shippen, delivered when he was president of the Court of Common Pleas, in the case of Graff n. Smith's administrators. (1 Dall. 481, 486.) The question before the court, in that case, did not, it is true, regard a judgment-creditor; yet the expressions of the president are very general, and seem strongly to intimate an opinion, that the purchaser should hold the lands discharged even from judgments. I do not mean, however, to say, that that point was decided. After this decision, in the year 1789, came the act of the 19th of April 1794, which I shall now consider. (3 Dall. Laws 526.) The 19th section gives the same power, which had been vested in the orphans’ court by the act of 1705, that is to say, to order sale of such part of the lands, as they should, from time to time, think proper, for the payment of debts, maintenance and education of children, and improvement of the residue of the estate. The 20th section forbids the court to order a sale, until they have ascertained, in the manner therein mentioned, the amount of the intestate’s personal estate, and of the debts due from him. The 21st section declares, “that no lands or tenements so as aforesaid sold, by order of the orphans’ court, shall be liable in the hands of the purchaser, for the debts of the intestate.” If we consider the plain meaning of these words, the lands thus sold, are discharged from the lien of judgments. I think, no man, learned or unlearned, would understand the word debts, as *excluding judgments. r*... The counsel for the plaintiff do not contend so ; but they argue, that *■ although a judgment is a debt (taking the word debt in its largest signification), yet, to avoid great injustice and inconvenience, the legislature must be supposed to have intended only those debts, which were not a lien in the life of the intestate. The avoidance of injustice, and inconvenience, is 391 464 SUPREME COURT Moliere v. Noe. [Dec. a most desirable object, and the court will always strive to attain it. But they must not overleap the bounds of their duty : they have power to construe laws, but not to make or alter them; and where the meaning of the legislature is plain, the court have no right to regard inconveniences. General expressions have sometimes been construed, so as to be restrained to particular cases ; but to authorize such construction, it must appear, that the use of the words, in their general sense, would produce absurdity, contradiction or such flagrant injustice, as it could not be supposed the legislature meant to sanction. Upon a careful examination on the act in question, I cannot see that the discharge of the lands from the lien of judgment in the hands of the purchaser, will produce any such consequences. No inconvenience will result, if the orphans’ court and the administrator do their duty. The lands will certainly sell better, for being discharged from liens ; and it makes no odds to the judgment-creditors by what person they are sold, provided they are sold fairly, and the proceeds faithfully applied. I am clearly of opinion, that they must be applied to the payment, in the first place, of the liens which existed in the life of the intestate, according to their respective priority, (a) There is no intimation in any part of the act, to the contrary, and to say that judgment-creditors should not have a preference, in the application of such proceeds, would produce this monstrous injustice, that those creditors would preserve the benefit of their lien, in case a man made a will, but lose it, if he happened to die intestate. Before I dismiss this subject, I will give my opinion concerning debts due by mortgage, which were mentioned in the course of the argument. I conceive them to stand on a different footing from judgments, because the mortgagee is, strictly speaking, the owner of the land, and may recover it in an ejectment.1 The mortgagor has no more than an equity of redemption ; nor have the orphans’ court power to sell a greater estate than he is lawfully possessed of. (¿») It will be seen, that in the 14th section of the act, where the order in which debts shall be paid is' designated, there is no mention of mortgages, which evidently shows that the legislature took it for granted, that the mortgagee looked to the land for his security. The question now decided, is of importance to the public, particularly as different opinions have been entertained concerning it. As it must henceforth be considered as settled, I make no doubt, but the orphans’ court, in the several counties, will (a) On a sale of an intestate’s lands, by order of an orphan’s court, judgmentcreditors are to be paid according to priority in date. Girard v. McDermott, 5 S. & R. 128. (5) Judicial sales of land divest all liens, whether general or specific. Thus, when a legacy is charged upon land, a sheriff’s vendee or a purchaser under a sale by an order of an orphans’ court would take the land discharged from the lien of the legacy. McLanahan v. Wyant, 1 P. & W. 96; Barnet v. Washebaugh, 16 S. & R. 410; Graff v. Smith, 1 Dall, 486 note; see also ante, p. 151 note. The act of the 6th April 1830, does not embrace the case of a sale by order of an orphans’ court. 1 This is a mere dictum, and has not been received as law. Bowen v. Oyster, 3 P. & W. 243. Prior to the passage of the act of 23d March 1867, an orphans’ court sale, for the payment of debts, discharged the lien of a mortgage given by the decedent in his lifetime. 392 Morse v. Shultz, 13 Penn. St. 98. And it still has that effect, except in certain counties of the state, for which special provision has been made local statutes. For the legislation on this subject, see Purd. Dig. (10th ed.) 479. 1800] OF PENNSYLVANIA. *455 Morgan v. Insurance Co. of North America. use proper vigilance to prevent injury to judgment-creditors. *They have full power to see that sales are made fairly, and with due notice, and to exact security from the administrator, in proportion to the increased funds which may come to his hands. These precautions, assisted by the attention of the creditors to their own interest, will, I flatter myself, produce sales to the greatest advantage, and faithful application of their proceeds. My opinion is, that the defendant, the purchaser at the sale ordered by the orphans’ court, holds the land discharged from the plaintiff’s judgment. Yeates, Justice, who was present at the argument, informed the chief justice that he concurred with his opinion ; and— Brackenridge, Justice, expressed his concurrence, generally. Judgment to be entered for the defendant. Morgan et al. v. Insurance Company of North America. Insurance of freight. Where a vessel sails upon a lawful voyage, but on her arrival at the port of destination, finds the same in the possession of another foreign power, and is prohibited from landing her cargo, the freight is earned; and there can be no recovery against the insurers thereof. This was an action upon a yolicy of insurance, on the freight of the brig Amazon, valued at $3500, upon a voyage from Philadelphia to Surinam. The policy contained a warranty of American property, and the usual clause against illicit trade. On the trial of the cause, before the Chief Justice, at nisi prius, in July 1806, it appeared that upon the 7th of August 1799, when Surinam was in possession of the Dutch, the vessel sailed on the voyage insured, and arrived at the river of Surinam, on the 17th of September following ; that the brig was detained at the entrance of the river, by the commander of the British fort, who informed the master, that the colony of Surinam had been in possession of the British forces about twenty days; that the master, and a passenger of the name of J. G. Richter (who was an inhabitant of Surinam, and to whom the cargo was delivered there, on his paying $25,310, in pursuance of a contract with the plaintiffs, Morgan and Price) proceeded to the town of Paramanto, and the cargo was there tendered and agreed to be accepted by Richter, who gave security for paying the stipulated price, as soon as possible after the delivery, in conformity to the contract. On the 19th of September, the governor of the colony gave permission for the brig to be brought up to town, where she, accordingly, arrived the next day, for the purpose of discharging her cargo; that on reporting, however, to the customhouse, the collector declared that he would not permit any article to be landed, excepting the provisions (which did not amount to more than oneeighth of the cargo), and that permission to land the cargo generally, was repeatedly solicited by the master, but refused by the governor; in conse- 393 ♦456 SUPREME COURT [Dec. Morgan v. Insurance Co. of North America. quence of which, it was brought back to *Philadelphia. Upon these facts, related in the master’s protest, (a) the plaintiffs abandoned, and claimed for a total loss of the freight insured. And it was agreed to state them in a case, for the opinion of the court. The general question was, whether the plaintiffs were entitled to recover, either for a total, or for a partial, loss of freight ? And the solution was considered, by the counsel on both sides, as depending upon the inquiry, whether the freight had been earned, in whole or in part; and if not, whether the loss was occasioned by a peril enumerated in the policy. For the plaintiff.—By the bill of lading, the master is obliged to deliver the goods (the danger of the seas only excepted), and freight is only payable on the delivery. Beawes Lex Merc. 137; Jud. 179, 183. If a foreign government prevents a landing of the cargo, it prevents an earning of the freight by an arrest, restraint and detainment; as much, surely, in the decided case, of the foreign government refusing to permit a cargo to be shipped for which the vessel was sent. 3 Bos. & Pul. 295; 8 T. R. 267; 1 Brownl. 21; 7 T. R. 385; Abbot 261; 3 Bac. 610; Lex Merc. 267; Park 292; 3 Rob. 152-3; 7 T. R. 383; 2 Vern. 170; Perot n. Penrose, in Supreme Court of Pennsylvania. A policy on goods continues in force, until the goods are landed (1 Marsh. 162), and all policies should be liberally construed, for the benefit of trade. (Ibid. 164-5.) In the present case, there is no proof of the delivery of the cargo at Surinam ; but, on the contrary, it appears, that Richter agreed to pay for it as soon as possible after it was delivered; and as the delivery depended upon the landing, it is virtually disproved by the evidence, that the governor always refused to grant a permit for the landing. For the defendant.—On the evidence, there was an arrival of the vessel at her port of discharge ; and the tender and acceptance of the delivery of the cargo, entitled the owner to his freight. The owner of the ship was not bound to procure a permission to land the goods. Besides, it is not denied, that seamen’s wages were paid; and wages are never payable, but in cases where the freight is earned. But even the loss, if established, was not occasioned by peril insured against. There was no arrest, no restraint, no detainment; but merely the refusal of a right of entry. Ord. Louis XIV.; 1 Vai. 656, art. 15 ; lb. 626, art. 7 ; Doug. 622, 626-7 ; Poth. 60, § 69 ; 2 Marsh. 434-7 ; 1 Ibid. 162, 164-5 ; Abbot 161 ; 2 Burr. 887. *4r71 *The Chief Justice delivered the following opinion, in which u J Brackenridge, Justice, concurred : Tilghman, Chief Justice.—This is an action on a policy of insurance on freight of the brig Amazon, from Philadelphia to Surinam, valued at $3500. The brig sailed from Philadelphia on the 7th of August 1799, with a cargo consisting of provisions and merchandise, and arrived in the river Surinam, on the 17th of September following. During the voyage, the colony of (a) When the protest was offered to be read, the defendant’s counsel observed, that the circuit court of the United States had refused to admit the protest in evidence, and submitted the competency of such evidence on the present occasion. But by The Court.—The practice of Pennsylania has been long settled : the protest has invariably been received as evidence in the state courts. 394 1806] OF PENNSYLVANIA. 457 Morgan v. Insurance Co. of North America. Surinam was conquered by the forces of the king of Great Britain. Permission was obtained from the British commander, for the brig to go up to the town of Paramanto, and she arrived there with her cargo, on the 20th September. On her arrival, the master of the brig, in pursuance of instructions from the owners, as well as in pursuance of an agreement between the owners and a certain J. A. Richter, who was a passenger in the said brig, offered to deliver the cargo to the said Richter, upon his paying, or giving security to pay, $25,310. Richter agreed to pay that sum, as soon as possible after the delivery of the cargo, and actually gave good security for the money. But the British collector of the customs, refused permission to land any article of the cargo, except the provisions, nor could such permission be obtained, although repeated petitions were presented to the government. The consequence was, that the cargo was not landed, and the master entered his protest. The brig remained at Paramanto until the 27th of September. The plaintiffs’ were owners both of the brig and cargo. The question is, whether the plaintiffs are entitled to recover, either for a total loss, or for a partial loss, on this policy ? The plaintiffs’ counsel contend, that they are entitled to recover for a total loss ; that the landing and delivery of the cargo is an essential part of the contract between the owner and freighter, and not being complied with, no part of the freight has been earned ; and that the circumstance of the same persons being owners of the brig and cargo, is immaterial, in a question between the insurers and assured. On the other hand, the defendants’ counsel say, that there has been no loss, because the freight was completely earned. No adjudged case in point has been cited on either side. The defendants’ counsel relied on the case of Blight v. Pag% 3 Bos. & Pul. 295 n., but 1 do not think that case applicable. The owner of a vessel agreed to go to a certain port, and take in a cargo of barley, to be carried on freight. When the vessel arrived at the port, the defendant could not furnish the cargo according to his agreement, because the government refused to permit the exportation of barley. The owner sued the defendant for not complying with his contract, and recovered damages equal to the amount of the freight. This only shows, that the interference of the government did not excuse the defendant from complying *with his contract. The plaintiff had [-*. done everything necessary on his part, and was prevented from earn- *-ing his freight, by the breach of contract on the part of the defendant. No conclusion can be drawn from this case, under what circumstances freight may be earned, or not earned. For it was not an action for the recovery of freight, but of damages for not being permitted to earn freight. But although there is no adjudged case, the subject has not escaped the notice of writers on the marine law. In one of the ordinances of Louis XIV. (A. D. 1681), (a) it is declared, that on a charter-party to carry goods out and in, if, during the voyage, the commerce is prohibited and the vessel returns, the outward freight only is earned ; and Valin, in his commentary on this article, says, the law is the same, if the vessel is freighted outward only. These ordinances, and the commentaries on them, have been received with great respect, in the courts both of England and the United States ; (a) 1 Vol. Ord. Louis XIV. 656, Art 15, title Freight, cited by Abbot. 395 458 SUPREME COURT Sansom v. Ball. [Dec. not as containing any authority in themselves, hut as evidence of the general marine law. Where they are contradicted by judicial decisions in our own country, they are not to be respected ; but on points which have not been decided, they are worthy of great consideration. I am strongly inclined to adopt the rule laid down by Valin, because I think it reasonable. The owner of the ship has been in no fault whatever ; when he took the goods on freight, there was an open commerce between Philadelphia and Surinam; the goods were carried to the port of delivery ; the vessel waited there seven days, and the master offered to deliver the cargo to the consignee, who refused to receive it. Nothing prevented it but the prohibition of the British government. It is not like the case of a vessel which is prevented from entering the port of delivery, by a blockading squadron ; for there the voyage is not performed, and it is impossible to say, certainly, that it would have been safely performed, if there had been no blockade. I think it most agreeable to reason and justice, that the obtaining permission to land the cargo, should, in this case, be considered as the business of the consignee. That being established, it follows, that the freight was earned. Upon the whole of this case, I am of opinion, that the plaintiffs are not entitled to recover, either for a total or a partial loss. *459] *Sansom v. Ball. Insurable interest.—General average. Freight advanced, in consideration of which, the person making the advances, acquires a right to a certain proportion of the tonnage, is an insurable interest. Where salvage is decreed, on a re-capture, and the vessel is restored, on payment of a sum of money, by way of compromise with the re-captors, this is matter of general average, to which underwriters on “ freight advanced,” must contribute. Case, on a policy of insurance, upon the freight of the ship Richmond, for a voyage at and from Philadelphia to Batavia, and thence back again. The premium was twenty per cent., “to return five per cent., if the ship proceeds only to Batavia and back to Philadelphia, and no loss happens ; ” and the insurance was declared to be “ on freight advanced here, and which, by agreement, is valued at $13,500.” The policy also contained the usual clause, that there should be no average loss recovered, if less than five per cent., unless it was general. On the trial of the cause, it appeared, that the Richmond was owned by Messrs. Jesse and Robert Wain ; that the plaintiff purchased from the owners three-eighths of the tonnage of the ship, for the voyage, at the price of $10,837.50, which was paid before the ship sailed ; that the Richmond proceeded safely to Batavia, but on her return thence to Philadelphia, she was captured by a French privateer, who ordered her to Guadaloupe, and she was afterwards retaken by a British ship of war, who carried her into Martinique; that upon a libel for salvage, at Martinique, one-half of the full value of the ship and cargo was decreed to the re-captors, and the claimants charged with all costs ; and that by agreement between the master and the supercargo, on the one hand, and the re-captors, on the other, one-half of the cargo was specifically delivered to the latter, and 2750/. fixed for the salvage 396 1306] OF PENNSYLVANIA. ’ ' 459 Sansom v. Ball. on the ship, which was paid by a draft on the owners at Philadelphia, secured by an hypothecation. The present suit was brought to recover an average loss ; and the case being submitted for the opinion of the court, two questions were discussed : 1st. Whether the subject described in the policy was an insurable interest ? 2d. Whether, under all the circumstances of the case, the insurers were liable for a general average ? (a) 1st. The plaintiff's counsel, contending that the interest was insurable, urged : 1st. That it was a lawful interest. It is the payment of a sum of money, for the benefit of bringing home a return-cargo, either as owner, or upon freight. There is no general law, no law of America or of England, against the payment of freight in advance, whatever may be the law of France (2 Marsh. 644) ; and there is scarcely a subject of property, for which *a price is paid and received, that may not be the subject of *• insurance, unless where general policy forbids ; as in the case of seamen’s wages. Park 9 (5th edit.) ; lb. 103. Nor can this be considered as a double insurance ; for it is a distinct interest ; and different insurances may be effected by different persons, having different rights, in the same property. 1 Marsh. 282 ; Park 103. Nor is it a loan upon bottomry ; for it was not advanced on the pledge of the ship herself, but for the use of her tonnage ; and it is immaterial, that the valuation in the policy exceeds the actual cost ; as the plaintiff had a right to cover the premium, charges, interest and profit, as well as his advance. 2d. The interest insured was liable to hazard and loss ; and therefore, it was insurable. If the ship had been totally lost, the plaintiff’s use of the tonnage, for which he had paid, was gone, and the owner of the ship could not be compelled to refund. 3d. The interest is well described in the policy. It is not a purchase of a share in the vessel ; but of a right to convey goods in her, upon the voyage insured ; and the transaction does not violate the registering act, on the point of ownership (1 U. S. Stat. 294, § 14) ; or even on the supposition of its amounting to a sale of a part of the vessel, it only forfeits the American privileges ; it does not affect the insurable quality of the interest acquired. But again, when it is objected, that none but the owners of a ship can recover upon an insurance of freight ; the objection obviously arises from confounding the purchase of the right of freight, paid in advance, with freight to be earned and received, at the end of the voyage. It is clear, that the owners of the ship could not insure (and certainly they did not attempt it) as freight, the tonnage purchased by the plaintiff. And when the plaintiff proposed the insurance, the intention of the parties, according to the facts disclosed, without objection at the time, ought to govern the construction of the policy. Park 439, 4th edit. 2d. On the second point, the plaintiff’s counsel insisted, that whether the salvage was considered as freight, or as a charge upon goods, the interest (a) Mr. Fitzsimmons, a merchant and underwriter of great intelligence and experience, proved, at the trial of the causé, that the interest acquired by the plaintiff in the tonnage of the ship, was a well-known subject of insurance in Philadelphia. He also proved that an adjustment of the average loss, on the present voyage, had been made ; in which the insurance companies, and most of the private underwriters, had acquiesced. Qn the'effect of the adjustment,, the plaintiffs cited Park 118; Marsh. 244. 897 460 SUPREME COURT Sansom v. Ball. [Dec. insured was liable to a general average ; and, if so, the underwriters on the present policy were bound to furnish an indemnity. Ship, freight and cargo contribute to general average. Park 121 ; Abbot 215 (Am. Edit.) ; 1 East 220. If it is essential to a general average, that the loss should be voluntarily incurred surely the payment of salvage, upon a re-capture, is an act as voluntary, as throwing goods into the sea, upon the coercion of a tempest. Nay, it is within the express stipulation of the policy, that the assured shall labor to recover the property from any jeopardy, in which it is involved, by a risk insured against. Park 140-1, 123 ; Abbot 218 ; 2 Burr. 1213; 1 Mag. 245; 1 Rob. 86. And if ship, freight and goods should all contribute to a general average, the plaintiff’s interest in the use of the *.„,-1 ship could only contribute in this way; and contributing at all, is -* entitled *to an indemnity. 2 Marsh. 460 ; Park 124-6 (4th Edit) ; Abbot 290-1. 1st. The defendant's counsel, contending that the interest was not insurable, argued, that it was in the nature of bottomry ; and therefore, not insurable, unless specifically ; and even then, there could be no recovery for an average, but only for a total loss; that the idea of freight is inseparable from a completion of the voyage, and none but the owner of the ship can recover freight; and that there is no instance of a person, who is merely liable to pay freight, being liable to contribute to the payment of a general average. Abbot 179 ; 2 Bos. & Pul. 321-2 ; Marsh. 644 ; 1 Ibid. 93. If the purchase is considered a purchase of part of the vessel, then no legitimate contract can be founded on it, unless the vessel is registered anew. (1 U. S. Stat. 294, § 14.) 2d. On the second point, the defendant’s counsel contended, that the decree of the court only affected the ship and cargo (not the freight) with the payment of salvage ; that nothing but a general average can affect freight; and a general average calls for a voluntary sacrifice of a part, to preserve the rest of the property; whereas, the loss on the salvage was compulsory. (1 Johns. 406, 410 ; Abbot 220 ; Park 122, 130.) The chief justice, after stating the general facts, delivered the unanimous opinion of the court, in the following terms : Tilghman, Chief Justice.—In this case, two questions have been made : 1st. Had the plaintiff an insurable interest? 2d. If it was insurable, was it liable to a general average ? I. In order to determine whether the plaintiff’s interest was insurable, we must first ascertain the nature of it. It seems to be a kind of interest, not much, known in Europe, though well known in this city. The plaintiff advanced a sum of money to the owners of the ship, in consideration of which they gave him a right to fill up three-eighths of the tonnage of the ship, for that voyage, with goods, either his own or the property of others. It is called in the policy “ freight advanced,” an expression well calculated to show its meaning. All countries, and even all cities, have singularities of expression. All new inventions, either in commerce or the arts, give rise to new modes of speech, which, when once introduced into contracts, are recognised by courts of justice, whose duty it is to carry into execution the intention of the contracting parties. Now, what is there in this interest, which should exclude it from the benefit of insurance ? there is nothing 398 1806] OF PENNSYLVANIA. 461 Sansom v. Ball. unlawful in it. It is subject to loss ; for whether the plaintiff used the tonnage for the transportation of his own goods, or of the goods of others, he would lose his money, unless the ship performed the voyage in safety. Indeed, I think Mr. Ingersoll, in *arguing for the defendant, con-ceded that the plaintiff’s interest might have been insured, if it had *■ been properly described; but he conceived it to be in the nature of bottomry. This it certainly cannot be ; there was no loan of money. Messrs. Wains were obliged to make no payment to the plaintiff, but the plaintiff was entitled to make what he could from the tonnage he had purchased. Whether it was more or less, Messrs. Wains had nothing to do with it. The testimony of Mr. Fitzsimmons goes far towards proving, that the plaintiff’s interest was well described, and was a proper object of insurance. In the case of Gregory v. Christie (Park 11), my Lord Mansfield thus expresses himself : “ I should think that the words ‘ goods, specie and effects,’ did not extend to the plaintiff’s interest, if we were only to consider the words by themselves. But here is an express usage, which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always insured in this way.” Now, though there have not been a great many witnesses in this cause, yet there has been one, very much conversant in the business of insurance, who stands uncontradicted. Upon this first point, therefore, the insurability of the plaintiff’s interest, whether it is considered on principle, or on usage, I have no doubt, but the law is with the plaintiff. II. But was the plaintiff’s interest liable to general average ? General average, or general contribution, is founded on principles of justice and sound policy. It arises, when a sacrifice of part has been made for the preservation of the residue, or when money is expended, to preserve the whole. Thus, the loss occasioned by cutting away of masts, or throwing goods overboard, to lighten the ship in a storm, or money paid to redeem ship and cargo, which had been captured, are subjects'of general average ; ship, cargo and freight have been benefited, and therefore, all must contribute. In the present instance, a compromise was made with the re-captors. Was it for the benefit of all persons concerned in ship, cargo and freight ? for if it was, it falls within the rule of general average. It appears to me, that it was for the benefit of all concerned. It prevented a sale of both ship and cargo, which must have injured all concerned. It would certainly have injured the plaintiff, who had goods on board to a large amount, and he had paid in advance, for the freight of these goods. Of whatever nature the plaintiff’s interest was, it was liable to salvage. Sir William Scott’s opinion (a) is, that salvage is due, for ship, cargo and freight. But the defendant’s counsel object, that general average never arises but from the voluntary act of man, and here, say they, was no voluntary act; for salvage was decreed by the court. This argument is rather too refined. Let us consider it. It is true, that the agency and consent of man must intervene, to prod ice a general average; but this agency and consent, though in one sense voluntary, are upon the whole, involuntary. When life is at stake, the mariner will-ingly *throws gold and diamonds into the sea. But was he willing to encounter the storm, which produced this diré necessity ? General aver- (a) The Racehorse, 3 Rob. 86. 399 463 SUPREME COURT Donath v. Insurance Co. of North America. [Dec. age always arises from actions produced by necessity. In the case before us, there was a capture, re-capture, and decree of salvage. The master and supercargo consented, under these circumstances, to a measure, which produced a general benefit. They surely exercised as much volition, as if they had thrown half the cargo overboard in a storm. Suppose, they had stood still, and suffered the ship and cargo to be gold, the underwriters would then have had to answer for the whole freight: it it better for them to be subject to a general contribution. We are of opinion, that the plaintiff is entitled to recover on this poliey, according to his demand. Lewis, Ramie and J. Sergeant, for the plaintiff. MeKean (Attorney-General) and Ingersoll, for the defendant. Donath et al. v. Insurance Company of North America. Partial loss.—Return of premium. Where an agent insures on account of his principal, though really for his own protection, there can be no recovery for a total loss, after a capture and restitution—the principal having accepted the property not lost or damaged; the loss, in such case, is but a partial one. There can be no claim for return of premium, where the risk has once commenced, and the voy age is entire; otherwise, where the voyage is divided into parts, and on one of them, no risk has been run. This cause was argued in March term last, on the following case stated for the opinion of the court, (a) Case. The plaintiffs were in advance for money lent, and goods delivered, to Don Alvarez Calderon, according to their account stated (including commissions and premium of insurance), to the amount of $13,750 ; and addressed to the defendants, the orders of insurance, dated respectively the 22d of June, and 6th of July 1799, in these words : “ Philadelphia, June 22d, 1799. “ President and Directors of the Insurance Company of North America. “ Gentlemen.—Agreeably to your answer, we request you to insure $13,750 on sundry effects, shipped on board the schooner Daphne, captain Ripley, bound for Havana. This insurance is declared to be made by us, for and in behalf of Don Alvarez Calderon, king’s attorney in the island of Cuba, on goods, or rather effects, they not being merchandise intended for trade, but wholly his property, consisting in clothing and wearing apparel, library, a vast quantity of house-furniture, coaches, &c., amounting together to $18,733, of which we only cover the above sum of $13,750, the same being the amount of our advances, inclusive of premium, commission, &c., *4841 at an^ from Philadelphia to Havana, on board *the Daphne, an Ameri- J can bottom and property, and the returns from Havana to Philadelphia on board the same schooner, or any other American vessel, but if remittance should be made to us in bills of exchange, for the whole or in part of the sum so insured by us, a return-premium of seven and a half per cent. ( a) The case was stated with a reference to the various documents read in evidence ; but it is necessary to incorporate the substance of them here, with the statement. 400 1806] OF PENNSYLVANIA. 464 Donath v. Insurance Co. of North America. shall be allowed us, on the amount that may be remitted in bills. We further warrant that Don Alvarez Calderon has all necessary passports and protections for himself, suite and property, from the British, Spanish and French ministers, which we have caused to be registered in Clement Biddle’s office.” “Philadelphia, July 6th, 1799. “President and Directors of the Insurance Company of North America. “ Gentlemen—Please to cancel the policy of insurance effected on goods or effects, shipped by us, on board the schooner Daphne, for account of Don Alvarez Calderon, for $13,750, as the same have been re-landed and loaded on board the brig Currier, captain McKeiver, on which you will please to transport the same insurance, and on the same conditions. Jos. Donath & Co.” Previously to these orders, the plaintiffs had entered into an agreement with Don Alvarez Calderon, dated the 11th day of June 1799, of which the material passages were these : “ The said Jos. Donath & Co. contract to furnish a suitable vessel for the passage of the said Don Andres Alvarez Calderon, his suite, and goods and effects, from this port of Philadelphia to Havana. To procure insurance to be made of the goods and effects of the said Don Andres Alvarez Calderon, for the said voyage, to the amount of commissions, premium and charges, and the said goods and effects inclusive, and to comprehend in like manner the sums of $2000, advanced him by Stephen Dutilh, such insurance to be made at and from Philadelphia to Havana, and at and from thence back to this port of Philadelphia, and the policies of insurance, and authority to recover the same, in case of loss, to remain and be vested in the said Joseph Donath & Co. “ And the said Andres Alvarez Calderon further covenants, promises and obliges himself to the said Joseph Donath & Co., to pay to the said Joseph Donath & Co., or their correspondent at Havana, the full amount of said sums to be by them advanced, and also for the freight and other sums to be by him paid as aforesaid at Havana, in specie, to be loaded on board any vessel at Havana that they may require, clear of duties or risk; or at the option of said Andres Alvarez Calderon, to pay the said amount in sugars, or other *produce, in which last case, all the freight, charges, com- r*. _ missions at Havana, and risk of the said sugars or other produce of *-the said island of Cuba, shall be at the charge of the said Andres Alvarez Calderon, so that the net proceeds thereof, after deducting all charges, freight and insurance, as the same shall produce at Philadelphia, shall be to the credit of said Andres Alvarez Calderon, instead of the sum paid at Havana in specie. And it is declared and agreed by the said parties hereunto, that in case the said vessel should be captured, taken or lost on her said voyage, that the insurance to be recovered on the goods and effects, to be shipped and insured as mentioned in the third article before mentioned, shall be applied by the said Joseph Donath & Co., to the discharge of their advances, and in abatement or acquittance for so much of the bills or drafts to be drawn by the said Don Andres Alvarez Calderon for the said sums, so to be paid and advanced for his use by the said Joseph Donath & Co., as aforesaid.” 4 Dall.—26 401 465 SUPREME COURT [Dec. Donath v. Insurance Co. of North America. On the 6th day of July 1799, Joseph Ball duly underwrote the policy for the defendants, and affixed their corporate seal, by which they insured goods on board the Currier outwards, and on board her, or any other good American vessel home, at and from Philadelphia to the Havana and back to Philadelphia, valued at $13,750, for a premium of twenty per cent. The property out was warranted to belong to Don Alvarez Calderon ; and that he had all necessary passports and protections for himself, suite and property, from the British, Spanish and French ministers, resident in the United States. It was also stated in the policy, that the property homewards was to be shipped by Don Alvarez Calderon, or by his order, for account of the plaintiff ; but if the remittance was made in bills of exchange, and not goods, there should be a return of seven and a half per cent, of the premium. The premium was duly paid ; the warranty in the policy contained was complied with and performed ; the policy has always remained in the possession of the plaintiffs ; and the goods were shipped and consigned, as specified in the invoice and bill of lading, to wit, by Joseph Donath & Co. “ for Don Alvarez, to Peter Blain, or his assigns,” at the Havana. On the 19th June, and 8th July 1799, the plaintiffs wrote two letters to Peter Blain, the plaintiffs’ agent named in the bill of lading, inclosing a copy of the contract with Don Calderon, and desiring him to secure payment before the goods were delivered ; to which letters they received answers, dated respectively the 18th and 31st of October 1799, stating the refusal of Don Calderon to pay the drafts, and his desire that the plaintiffs would seek redress from the underwriters. The brig Currier, in the policy named, sailed from Philadelphia, on the 10th of July 1799, on the voyage insured, with the property insured on board ; and while lawfully prosecuting the voyage, to wit, on the 31st of U99, she was captured by the British privateer *schooner Char- J lotte, Captain Thrift, and carried into New Providence, on the 3d day of August ensuing, where James McKeiver, master of the said brig, entered a protest. The brig and cargo were libelled in the vice-admiralty court, at New Providence, and were both condemned, except the property in the policy insured, touching which the following proceedings were had at New Providence. On the 26th of August 1799, Don Calderon petitioned the court of viceadmiralty, stating that he was possessed of passports from the British minister, &c., and praying restitution of his effects. On the 2d of September, the judge pronounced sentence, which, so far as it relates to the present question, expressed a doubt upon the construction of the British minister’s passport; and directed an inquiry to be made, whether it was the minister’s intention to protect the effects of Don Calderon, to the extent claimed, (a) On the (a) The opinion of the judge of the court of vice-admiralty (Judge Kelsall), upon the general character and operation of diplomatic passports, appears sufficiently interesting, to justify its insertion at length. Decree. “ The only shipment in this vessel, that has occasioned me any hesitation, is that of Don Alvarez. This gentleman is a Spanish subject, but to exempt his property (of the value of eight or ten thousand dollars) from the usual consequence of capture, he has produced a paper, which has given rise to no small argument and discussion. It is a letter of license from his majesty’s ambassador with the American states, Mr. Liston, by which the commanders of vessels of war are requested to allow Don Alvarez to pass, with his domestics, baggage and effects. It is said, that this paper, from its language, not being mandatory, never was designed by Mr. Liston to be viewed as a safe-conduct; that it is merely an expression of civility, a complimentary act, 402 1806] OF PENNSYLVANIA. *467 Donath v. Insurance Co. of North America. 12th of September 1799, all the goods were *restored to Don Calderon, on his giving security to abide the final decree, except a trunk of valu- intended to procure to Don Alvarez polite treatment, and to protect himself, servants, baggage, and the customary viatica, or articles necessary for his use during the voyage, and no more; but by no means to enable him to carry furniture, carriages and other goods, to so great an amount as the property in dispute; that the document is not in the usual and proper form; and finally, the right of ambassadors, to protect by their licenses, mere than has been here conceded to them, has been contested, on the ground, that it would defeat the operation of the prize act. “The safe conduct of ambassadors will not, I apprehend, be often the subject of consideration here; and still more rarely will it happen, that there will be any greater occasion to dispute or deny the privilege claimed, than there exists in the present. If, however, the right of ambassadors to grant licenses, whereby enemy, or contraband goods may be protected from capture, during their passage through the sovereign’s dominions (which is the case more especially alluded to by Blackstone, 1 Com. 259-60), or even to the territories of the enemy, which is the case here, be admitted in its fullest extent; still, it must be granted, that to insure proper respect to his act, attention should be paid to the forms prescribed or recommended by the writers on the law of nations; I mean, as Vattel expresses it, to enumerate and categorically express everything intended to be comprehended. Here, no enumeration has been made; but, instead thereof, a word has been inserted, of an import so general, that it may be construed to include anything and everything, of any amount and of any kind. I may, I trust, without derogating in the least from the respect due to his excellency, the ambassador, be permitted to doubt, whether, when he wrote the passport, he really meant to give it the full purport of which it is susceptible. “ The situation of judges of the vice-admiralty courts is well known to Mr. Liston. If, on the one hand, they are bound to respect the right of ambassadors, there are, also, duties to fulfil towards those who claim the benefits of the prize act. And hence, I do conclude, that in extending the privileges or immunities of a passport, beyond what is commonly done, he would have adopted a term of more precise and determinate signification, than the ene he has used. Besides, it is very evident that Mr. Bond, the consul, who, I dare say, did see this license, and who ought, and I presume, does know better than any person here, what the ambassador really intended, takes no notice whatever of ‘ effects,’ but confines his consular license or pass, which he granted eight days subsequent to that of Mr. Liston, to the persons and baggage of Don Alvarez and his servants. Don Alvarez himself, too, by insuring so carefully against capture, seems to have entertained a different opinion of this safe-conduct at Philadelphia, from that which he holds in this place. I will not, though, take upon me to say, that it is not possible, but that Mr. Liston might have been aware of the purpose to which his passport was intended to be applied ; and that he might have deemed this a fit occasion, for the exercise of the extraordinary powers attached to his station and character. If this prove to be the case, I shall dismiss the libel, and leave the captors, if they think themselves aggrieved, to seek redress elsewhere. My duty, therefore, in the first place, is to be satisfied of what was the ambassador’s meaning. For this purpose, I decree, that an exact enumeration of the articles (exclusive of the baggage, the books, and everything necessary for the prosecution of his voyage, which, if it has not been done, I direct may be immediately given up) that have been shipped by Don Alvarez, be made out, and that it be transmitted to his excellency, the ambassador, with a request that he would certify to this court, whether any or what things therein specified, were intended by him to be protected from capture by his license. In making this enumeration, I trust, that the greatest care will be used to prevent injury; and that the same oe done in the presence of some person appointed by the claimant.”1 1 Upon receiving Mr. Liston’s explanatory certificate, the whole of the^property was ordered to be restored absolutely. ¡403 407 SUPREME COURT [Dec. Donath v. Insurance Co. of North America. able articles, which had been lost after the capture; and for which the judge refused to make the captors responsible. The property received by Don Alvarez Calderon, in consequence of those proceedings, was carried by him to the Havana, but never delivered to the said Blain, in the bill of lading mentioned, nor accounted for to the plaintiffs. On the 31st day of August, and the 1st of October 1799, the plaintiffs abandoned the property insured to the defendants, stating in the former letter, particularly, that “ they had received orders from Don Calderon to do so ;” and thereupon, demanded payment for a total loss : which the defendants refused to pay, but offered to pay an average loss on the goods damaged and stolen. Don Alvarez Calderon has not paid to the plaintiffs the whole, or any part of their advances before mentioned : and no property insured on the homeward passage, has been shipped by him or his order, for accoun^ of the plaintiffs, nor hath any part of *the remittances in the J policy mentioned, been made in bills of exchange. The questions for the opinion of the court are : 1st. Whether, under all the circumstances, the plaintiffs had an insurable interest in the property, mentioned in the policy, out and home, or either ? 2d. Whether, if they had such interest, it is sufficiently insured by this policy, to entitle them to recover in the present action, as for a total loss ? 3d. Whether, if they are not entitled to recover as for a total loss, they are entitled to recover as for a partial loss, and to what amount ? 4th. Whether they are entitled to a return of premium on the ret urn-voyage, and to wh»t amount ? It is further agreed, that the judgment of the court shall be rendered by them, in such form and for such sum, if any, as shall be best calculated to effectuate their opinion upon the foregoing questions. The cause was argued, in March term, 1806, by Levy and. Dallas, for the plaintiffs ; and by Ingersoll and Hopkinson, for the defendants. For the plaintiffs, it was insisted : 1st. That the advance and lien gave them an insurable interest in the effects of Don Calderon ; Park 282 ; 1 W. Bl. 103; 1 Burr. 489; Park 267, 269; 8 T. R. 154; Park 11; 3 Burr. 1410; Park 270; 8 T. R. 13; 1 Bos. & Pul. 315, 323, 216; 6 T. R. 478, 483; 1 Marsh. 81, 91, 111, 112; 2 Bos. & Pul. 240, 75; that the nature of their interest was fully communicated to the defendants ; that they had taken every precaution to secure the lien, by retaining the possession of the effects, and consigning them to their agent at the Havana, to be delivered to Don Calderon, only upon repayment of the money advanced ; that the capture took from the plaintiffs the possession of the property, and with it, their lien ; thereby constituting a total loss, on which they had a right to abandon (2 Burr. 694; 2 Emerig. 188, 194-5; 3 Poth. lib. 3, c. 3, art. 1, § 3); that the restitution to Don Calderon was not a restitution to the plaintiffs ; but on the contrary, was destructive of their possession and lien ; and that although the goods were, in fact, afterwards carried to the Havana by Don Calderon, they were never delivered at the port of destination, to the consignee of the plaintiffs, within the spirit and meaning of the policy, any more than if they had been carried thither by the captors. 2d. That the defendants have virtually acknowledged the right of the plaintiffs to recover, by offering to pay an average loss upon the property damaged and stolen. 3d. That, at all 404 1806] OF PENNSYLVANIA. Donath, v. Insurance Co. of North America. 468 events, the policy contemplates two distinct adventures ; to wit, an outward cargo, and a remittance, either in cargo, or in bills of exchange (providing, in the latter case, for an abatement of seven and *a half per cent, r*. premium), and as no risk has been run of either kind, upon the re- L tum-voyage, there should be a proportional return of premium. Park 367 377-8 (5th edit.); 3 Burr. 1237; 2 Marsh. 564, 567, 569, 561-71; 1 Bos. & Pul. 172. For the defendants, it was insisted, 1st. That their contract was with Don Calderon, through the agency of the plaintiffs; that the plaintiffs never had an insurable interest, or, if they had, they have not insured it; for the insurance is made on the effects of Don Calderon, on his account and risk; and, although they are consigned to Blain, at the Havana, it is expressly “for Don Calderon” (1 Ld. Raym. 271; 12 Mod. 156); that there was no idea of a lien, in the origin of the transaction, but a perfect reliance on the honor of Calderon; that, although two persons may insure distinct interests in the same subject, it must be upon distinct contracts, for distinct premiums; and that Don Calderon, in case of a legal loss, might have sued on the policy, though he had paid his debt to the plaintiffs; and thus, if they might sue, their debt not being paid, two interests would be insured by the same contract, for a single premium. 2d. That the defendants had complied with their contract, the property being restored to, and remaining in, the possession of its owners, for whom the insurance was made, at its port of destination; and that the insurance was against the perils of the sea, and of war, but it was not an insurance against the misconduct of Don Calderon, in retaining the property, without paying the debt. 3d. That the voyage was entire; for an entire premium of twenty per centum, varying the amount of the premium, but not the entirety of the voyage, acccording to the manner in which the returns should be made. Park 440, 377; 2 Marsh. 572; Doug. 751. The cause was held under advisement, until the 17th of January 1807, when the opinions of the judges who had heard the argument were delivered. Tilghman, Chief Justice.—My opinion on the first point will be rendered unnecessary, by the opinion which I shall deliver on the second point; because, granting that the plaintiffs possessed an insurable interest, I am of opinion, that it clearly appears from the facts stated, that they ordered no insurance, and that no insurance was made for them, in any other capacity, than as agents of Don Alvarez Calderon: consequently, they cannot recover for a total loss, as Don Alvarez Calderon has accepted that part of the property which was saved, and thereby made his election to claim only for a partial loss. The instructions of the plaintiffs for effecting the insurance, were to insure expressly for and on behalf of Don Alvarez Calderon. It is true, they insured only $13,750, although the whole effects of their principal amounted to $18,733; *and they give the reason, that $13,750 covered the amount of their advances, including premium, commissions, &c. The defendants might well suppose, that the plaintiffs were to hold this policy for their own security, in case of loss, although the insur- 405 470 SUPREME COURT [Dec. Donath v. Insurance Co. of North America. ance was made for Don Alvarez Calderon; and that this was the fact, appears from the agreement, dated the 11th of June 1799. But it is not stated, that this agreement was disclosed to the defendants: on the contrary, there is one circumstance which goes far towards convincing me that no such disclosure was made. It is this: by the agreement, the outward cargo was to be at the risk of Don Alvarez Calderon, but the memorandum at the foot of the policy contains a covenant, that the inward cargo should be shipped on account of the plaintiffs. The plaintiffs contend, that they had a lien on the goods, and that it so appears by the bill of lading, and their letter to Mr. Blain. But in my opinion, those papers prove directly the contrary. By the bill of lading, the goods are deliverable, for Don Alvarez Calderon, to P. Blain; so that Don Alvarez Calderon might have compelled Blain to give him possession of the goods, before the expiration of the fifteen days, which were allowed for payment of the plaintiffs’ demand. The plaintiffs, in their first letter to Blain, declare that the respectability of Don Alvarez Calderon’s character was a sufficient guarantee for the honorable execution of his agreement. And even in their second letter, although they began to apprehend difficulty from the capricious temper of the Don, they gave no intimation of any expectation, that their agent should hold the goods until he received payment of their demand. Suppose, Don Alvarez Calderon had paid the plaintiffs’ account; can it be contended, that he could not recover for his own use, on this policy, the amount of the loss, that he has actually sustained ? And if he could, does it not inevitably follow, that the plaintiffs cannot recover for their own use? If they can, one insurance, effected for one premium, may be made to cover two different interests, vested in different persons. Besides, the plaintiffs attempt, most unreasonably, to make the defendants answerable for a risk, which they never meant to run; that is, for the integrity and good conduct of Don Alvarez Calderon. And after that gentleman has received the property, which was restored to him by the British court of admiralty, the defendants are called on to answer for it, as being lost. To render the impropriety of this demand the more complete, the plaintiffs made the abandonment, on which they found their claim, expressly by order of Don Alvarez Calderon. Nothing can be clearer than the plaintiffs, throughout the whole of the transaction of this insurance, acted not for themselves, but as the agents of Don Alvarez Calderon. 3d. On the third point, there is no difficulty. Undoubtedly, the plaintiffs may recover for the partial loss, sustained by Don Alvarez Calderon. -* *The defendants do not deny it. I presume, the parties can easily adjust this loss. Indeed, I understood so, from what fell from Mr. Levy, in the course of his argument. 4th. The last question in this case is, whether the plaintiffs are entitled to a return of any part, and how much, of the premium ? The general rule is, that where the voyage is entire, and the risk has once commenced, there shall be no return of premium. But when, by the course of trade, or the agreement of the parties, the voyage is divided into distinct parts; and on one of these parts, no risk has been run, there shall be an apportionment of the premium, and part shall be returned. A voyage may be entire, though the ship is to go to a number of different places, and to take in different cargoes. But if, in the contract of insurance, there are certain contingent 40Q 1806] OF PENNSYLVANIA. 471 Donath v. Insurance Co. of North America. cies introduced, which, at certain periods of the voyage, may operate so as to make the insurance void, it has been considered, that in such cases, the voyage may be supposed to have been divided, in the contemplation of the parties, into distinct parts. As in the case of Stevenson v. Snow (3 Burr. 1237), which was an insurance of a ship “ at and from London to Halifax, warranted to depart with convoy from Portsmouth.” The convoy was. gone, before the ship arrived at Portsmouth; and by the judgment of Lord Mansfield, and the whole court of king’s bench, there was a return of part of the premium. In the case before us, it appears to have been in contemplation of the parties, that on the voyage from the Havana home, there might be contingencies, which would either avoid the policy, for that part of the voyage, or lessen the risk, so far as to require a part return of premium. The goods shipped on the outward voyage, are warranted to be the property of Don Alvarez Calderon: it was doubtful, whether any goods would be shipped on the inward voyage. If a remittance was made in bills of exchange, there was to be a return of seven and a half per cent., part of the premium. If goods were shipped, they were warranted to be on account of the plaintiffs. It seems to be the spirit of this agreement, that the voyage maybe divided; and that if no goods were shipped, there should be a return of seven and a half per cent. On the whole of the case, I am of opinion, that the plaintiffs are entitled to recover for a partial loss, and a return premium of seven and a half per cent., with interest from the commencement of the action, (a) I do not think, that they should be allowed interest for a longer time, because they demanded more than they were entitled to, and have put the defendants to the expense of contesting their claim for a total loss. Yeates, Justice, being indisposed, sent his opinion, in writing, to the court, and it was read by the prothonotary. He concurred in the decision, that the plaintiffs were entitled to recover a partial loss, for the goods lost and damaged; but he considered *the voyage as entire, and con-sequently, was opposed to the claim for a return of premium. *- Smith and Brackenridge, Justices, concurred, generally, in the sentiments delivered by the chief justice. And judgment was entered for the plaintiffs, accordingly ; the quantum to be calculated by the parties. (6) (a) The assured is entitled to a return of the premium, if the goods upon which the insurance was effected have never been put on board the vessel, or if she was not seaworthy, at the time the risk would have commenced, if it had commenced at all. Scriba v. Insurance Co. of North America, 2 W. C. 0. 107. But fraud on the part of the assured, will bar him from demanding a return of premium. Schwartz v. United States Ins. Co., 3 Id. 170. (ft) On the question of interest, Dallas took the liberty of suggesting to the court, after the opinions were delivered, that the practice had uniformly been, to allow interest on the amount actually recovered, upon the expiration of thirty days, after depositing the proofs of loss; and that, on principle, the underwriters could only discharge themselves from interest or costs, by a tender, or payment into court, of the sum due. But the Chief Justice answered, that the subject had been considered, and was now decided. 407 APPENDIX. COURT OB ERRORS AND APPRATH OB THE STATE OF DELAWARE, i SEPTEMBER TERM, 1788. W. B., surviving partner, &c., appellant, v. Latimee, respondent, (a) Prize jurisdiction.—Effect of verdict. In case of a capture on a navigable water, the question of prize or no prize, is within the jurisdiction of the admiralty, though the property seized belong to a citizen of the state in which the capture was made. Upon a bill of exceptions to another point, and after a general verdict, the court is not bound to consider a judgment by default in replevin, as an affirmance of property. The facts, arguments and principles involved in the discussion of this cause, were stated by the first commissioned judge, in the following terms : Dickinson, J.—An action of trover was brought by the appellant and his partner, in the court of common pleas, in Kent, for the brig Endeavor and her cargo. There was a general verdict and a judgment for the plaintiff, in that court. The cause was then removed into the supreme court, by a writ of error, and there the judgment of the court below was reversed. The appeal, in this cause, is from that judgment of reversal. Upon the trial in the county court, the plaintiff gave in evidence, 11 that the defendant, as marshal of the admiralty, appointed Ralph Walker to take the brig and cargo into his care and possession ; that he did so, and continued possessed thereof, until they were replevied by virtue of the writ of replevin (a) I have been presented with the report of this case, and of the next, by the learned and venerable judge who pronounced the judgments of the court; and their intrinsic merit, as well as the respect due to the judge, must render any apology for their publication unnecessary. 409 i COURT OF ERRORS AND APPEALS W. B. v. Latimer. Sept. in the judgment hereafter mentioned ; and that the defendant, by a warrant in writing, appointed John Dawson, deputy-marshal, &c.” *ii 1 *The plaintiff then offered in evidence, the record of an action of replevin, brought by him and his deceased partner against the said Walker and others, to February term 1782, upon which action, a judgment was entered, at the same term, by default, for the said brig and cargo. The defendant, by his counsel, objected to the same, inasmuch as he was not a party to the action of replevin ; but the court overruled the objection. To this opinion of the court, the defendant’s counsel tendered a bill of exceptions, that was sealed by the judges, in which the facts before mentioned, were stated. Upon the same trial, the defendant gave in evidence, “ the transcript of the proceedings in the court of admiralty, by which it appeared, that the brig Endeavor and her cargo, had been condemned in the said court, as lawful prize, to and for the use of the captors, and had been sold by the defendant, as marshal of that court, under that decree. The plaintiff, by his counsel, objected to the operation of said condemnation, inasmuch as the said court of admiralty had not jurisdiction, the said brig and cargo being taken and seized as prize, at Whitehall landing, in Little Duck creek, in the body of Kent county, and belonging, at the time of seizure, to citizens and inhabitants of the said county, which objection, the court held to be sufficient, for the causes above stated.” To this opinion of the court, the defendant’s counsel tendered a bill of exceptions, afterwards duly sealed, in which the particulars before recited are set forth. The capture was made, during the late war, in December 1781. It is contended by the counsel for the appellant, “ that the action, in this case, against the officer of the court of admiralty, is maintainable, and two principal points are insisted on : 1st. That the court of admiralty had not jurisdiction ; and 2d. That if that court had jurisdiction, yet the judgment in replevin, subsequent to the decree of condemnation, is an affirmance of property in the appellant, of which, as such an affirmance, we are bound to take notice, and thereby to be concluded.” With respect to the first principal point, it is urged, “ that the admiralty had not jurisdiction, by any principle of law, because its jurisdiction extends only to acts done upon the high seas ; and in cases of capture, is governed by the law of nations, which can apply only to questions between citizens or subjects of different states or kingdoms; that it had not jurisdiction, under any resolutions of. congress, because they do not reach to the present instance ; that there was but a bare intent to offend ; and that the legislature of this state had directed a particular mode of proceeding, in every such instance, by the act of assembly passed on the 20th day of May 1778.” A great number of cases has been read, in order to show that the $... q jurisdiction of the admiralty, extends only to acts done *upon the high - seas. The same answer may serve for every one of them ; they all relate to causes civil and marine, and not to causes of prize. The question, “ prize or no prize, belongs to the jurisdiction of the admiralty, whether the capture be upon the high seas, in ports, rivers or within the body of a county.” It is not necessary to inquire how far this doctrine may be extended. The cause now to be determined, is of a capture upon a navigable ............ J ' 1788] OF DELAWARE. W. B. v. Latimer. iii water. The decisions in the cases of Le Caux n. Eden, Lindo v. Rodney and another, Brown and Burton n. Francklyn, and Key and Hubbard n. Pearce, have removed every doubt upon this head. The other branch of this objection is, “ that, in cases of capture, the admiralty is governed by the law of nations, which can apply only to questions between citizens or subjects of different states or kingdoms.” The law is as clear upon this, as upon the former, part of the objection. Whether it be, that, in time of war, the usual forms cannot be observed ; or that persons, engaged in enterprises favorable to enemies, are considered as connected with them in councils and interests ; or that, as the welfare of a society depends on the issue of the war, therefore, the endeavors of the well-affected, amidst uncertainties and dangers,.to guard the public happiness, give a peculiar sanction to their exertions, it is evident, that, upon captures as prize, the admiralty proceeds against the property taken, though it belongs to citizens or subjects of the state or kingdom, by the authority of which the court is established. If this rule be deemed essential to the general weal, in common wars, arising, perhaps, from disputes about borders, distant territories, or commercial benefits, how much more occasion is there for such vigilance and strictness, in a war like the last, a war of invasion, piercing iuto the heart of a country, and involving in its event, the freedom of a whole people and their posterity. In the cases before referred to, not to mention any more, Brown and Burton were English subjects, and Key and Hubbard, Le Caux and Lindo, were British subjects. Thus, that law from which our jurisprudence is derived,(a) stands established, by a multitude of judicial determinations, for several ages. The courts of admiralty, in these states, proceed in the same manner. The court of admiralty, in this state, condemned a vessel, taken in Jones’s creek, within the body of Kent county, and belonging to an inhabitant thereof ;(£) yet no objection, that *we have ever r*. heard of, was made to the jurisdiction of the admiralty. L Here, it may be proper to recollect, that, in the present instance, the court of common pleas expressly held the objection of the appellant’s, then plaintiff’s, counsel, against the operation of the condemnation in the admiralty, “ to be sufficient, because that court had not jurisdiction, inasmuch as the brig and cargo were taken and seized as prize, at Whitehall, in Little Duck creek, in the body of Kent county, and belonging, at the time of seizure, to citizens and inhabitants of said county.” The next allegation of the counsel for the appellant is, “that the court of admiralty had not jurisdiction, under any resolutions of congress particularly referring to those of the 25th of November 1775, and the 23d of March 1776. The second of the resolutions, in November, provides, that “ all transport vessels, in the British service, &c., and all vessels, to whomsoever belonging, that shall be employed in carrying provisions, &c., to the (a) By the 25th section of our constitution, “ the common law of England, and so much of the statute law as has been heretofore adopted in practice, shall remain in force, unless they shall be altered, &c.” (S) The facts here mentioned, that the vessel was taken in Jones’s creek, within the body of Kent county, and belonged to an inhabitant thereof, were stated in the libel of Barret and others. 411 iv COURT OF ERRORS AND APPEALS [Sept W. B. v. Latimer. British army or navy, &c., shall be liable to seizure, and, with their cargoes, shall be forfeited.” By the fourth, it is “ recommended to the legislatures of the United Colonies, to erect courts of justice, or give jurisdiction to the courts now in being, for determining concerning the captures to be made as aforesaid, all trials in such cases to be had, by a jury, &c.” By the fifth, “ all prosecutions shall be commenced in the court of that colony, in which the captures shall be made ; but if no such court be at that time erected, in the said colony, or if the capture shall be made on open sea, then the prosecution shall be in the court of such colony as the captor may find most convenient, &c.” By the sixth, “ an appeal, in all cases, shall be allowed to congress, or such persons as they shall appoint, &c.” By the fifth of the resolutions, in March, it is determined, that all vessels, &c., belonging to the inhabitants of Great Britain as aforesaid, and all vessels which may be employed in carrying supplies to the ministerial armies, which shall happen to be taken near the shores of any of these colonies, by the people of the country, or detachments from the army, shall be deemed lawful prize ; and the court of admiralty, within the said colony, is required, on the condemnation thereof, to adjudge payment of charges, and distribution, &c.” It is said, “ that if the words 4 all vessels,’ and 4 all vessels to whomsoever belonging,’ can be construed to extend to vessels owned by inhabitants of the United States, then colonies, yet the first set of resolutions wholly respects a condemnation upon trial by jury, and the second set, captures * near the shores of any colony,’ circumstances very different from those of the present instance; and both sets have regard, solely, to vessels -j *employed in carrying, &c., though here, at most, was only a design ’J of carrying.” The best way of discovering how far arguments, deduced from resolutions of congress, can be applied on this occasion, will be, to consider them, not separately, but conjointly, as forming a system, that existed in force at the time of the transaction. On the 8th of January 1780, long before the capture of the Endeavor, it was resolved by congress, 44 that the trials in the courts of admiralty, in cases of capture, be according to the usage of nations, and not by jury.” It does not appear that any other material part of the foregoing resolutions in 1775 and 1776, was repealed. Therefore, the powers intended, in those resolutions, to be exercised by the courts of admiralty, remained ; only the mode of exercising them was altered. The obligation of any of these resolutions has not been, and will not be, denied. Of course, the exception taken to the resolution of 1775, does not, in any manner, impeach the regularity of the proceedings in this cause. As to the exception, founded upon these words, in the resolutions of 1776, “near the shores of any of the colonies ;”(«) it would be a very singular distinction, if vessels, engaged in hostile projects, should be liable to seizure and condemnation, below the mouth of a river or creek, and should gain protection, by entering into it, for the very purpose of more effectually (a) The libel of Barret and others, against the vessel, taken in June 1778, and afterwards condemned, stated that she was taken in “ Jones’s creek, and near the mouth thereof, in Kent county.” This libel also set forth the resolution of congress on the 23d of March 1776, as the foundation of the prosecution. 412 ... 1788] OF DELAWARE. W. B. v. Latimer. carrying them on; especially, if it be considered, that congress certainly intended the resolutions of 1775 and 1776, to agree and co-operate. They did not undertake to say, that “ the shores ” of any colony, were the limits of that colony; and they expressly speak, in the 5th resolution of 1775, of captures made “ in ” a colony. The exception taken against both sets of resolutions, states, that “they have regard solely to vessels employed in carrying, &c., and that here, at most, was only a design of carryingor, in other words, that the offence was not committed, but only intended, (a) On the other hand, it is set forth by the judge, in his decree, that the fixed design of the appellant and his partner, through all the transactions relating to this vessel, was to carry her and her cargo to New York, then in the possession of the British fleet and army; and that they had obtained a passport from the admiral, who was there, for this purpose ; and it appears, from the plea and answer of the appellant, in the court of admiralty, and from other parts of the proceedings, that the brig Endeavor had *been purchased at Lewes Town, * . brought into Little Duck creek, as far up as Barker’s landing, had *-there received a considerable part of her cargo, and then went down several miles to the place where she was captured. If she was going to New York, surely she was “ employed in carrying supplies to the British army.” This point has been deemed very important, and many ingenious arguments have been offered upon it. One remark may, perhaps, throw some light upon the subject. Whether the Endeavor was “ employed in carrying supplies to the British army,” is a question of fact. This court is now sitting to correct errors in law, “ as was allowed under the old government in the last resort, to the king in council. ”(&) The cause now depending comes before us, after a removal into the supreme court, by a writ of error, upon a general verdict, and a judgment thereon below. Must there not be some great deviation from legal principles, in the method proposed for the decision of this business, since it leads to so extraordinary a conclusion, that, instead of being judges to determine what the law is, we are, in a case thus circumstanced, to become an imperfect jury, for the re-trial of a matter of fact? The last objection of the appellant’s counsel, comprehended in the first principal point, is, “ that the legislature of this state, has directed a particular mode of proceeding, in every such instance as the present, by an act of assembly, passed on the 20th day of May 1778.” By that act, “all provisions and supplies loaden on board any vessel or other carriage, in any place or port within the state, to the intent, &c., to be conveyed, &c., to or from the enemy, &c., shall be forfeited, with the craft, &c., carrying the same, to the use of the captors; and two justices of the peace of the county where such capture happens, may adjudge a forfeiture, and order sale, &c.” Proceedings have been, accordingly, had, at least, in one instance, at New Castle, in July 1782. At the time of making this law, the court of admiralty was subsisting in this state. Public acts and dates may here be material. In less than four (a) The intention of supplying an enemy, manifested by such circumstances as in this case, is clearly criminal, at common law. Foster 217. (&) Words of the act of assembly establishing the court of appeals. 413 ▼i COURT OF ERRORS AND APPEALS [Sept W. B. v. Latimer. months after the resolutions in March 1776, the declaration of independence was made. In less than three months from that time, with the same spirit of federalism, that has, on so many occasions, directed the conduct of this state, (a) our constitution was framed, candidly recognising the authority of “ resolutions of congress,” and among other things, requiring “ a judge of admiralty.” A judge was soon after appointed. It is not to be supposed, * .. -| that in the long interval, between November 1775, when congress ’■* recommended the establishment of courts, for condemnation of captures, taken in any part of united America, as well as elsewhere, until May 1778, when this act of assembly was made, there was no court here, vested with correspondent powers. The court of admiralty had cognisance in such cases. Principles of law, and the circumstances of our situation, required that it should have cognisance. In that act, are no words that, positively, or by necessary implication, take away any authority then existing in another tribunal. The general assembly might think it advisable, in aid of that authority, to diffuse the jurisdiction given by the act, throughout every part of the state, among the justices of the peace, as the offences might be numerous, and it would, sometimes, be exercised upon occasions of very trifling moment. The law is clear, that where a court has jurisdiction in certain cases, and afterwards jurisdiction therein is given to another court, this provision is only cumulative, not privative ; it does not abrogate the authority of the first; but both have a concurrent jurisdiction. (1 Black. Com. 89, 90.) There was another question, moved in the course of argument, that seems not properly referable to either of the two principal points before mentioned. Several cases were produced to show, that “ it is necessary in every suit in the admiralty, to allege in the libel, that the cause of action arose upon the high seas.” One distinction solves all difficulties on that question. In causes civil and marine, such an allegation may be necessary ; in causes of prize, it is not. 2 Douglas 608. Thus far, induced by particular considerations, have we pursued the way marked out by the appellant’s counsel, for examining this cause, of much importance, and of the first impression among us. Where does it begin, and to what does it lead ? From a supposed right, in a court of common law, of scrutinizing, in an action of trover, a decree of the admiralty, in a cause of prize, after execution; to a power of reversing it in effect. Nota case has been produced by the learned counsel, to support this doctrine. It has been said, indeed, that “ the capture, being within the body of a county, is properly triable in a court of common law, especially, where only citizens are concerned.” There is no difference of this kind, upon captures as prize. It is well known, with what vigilance the judges in Westminster Hall have watched the admiralty jurisdiction, and with what vigor they have checked it, when unduly exercised. Yet, for this purpose, they never availed themselves of the circumstances now suggested. Besides, there are causes, triable by jury, that originate out of the county, and out of the state, in which the trial is had. Where, then, is their power, in causes of prize, to stop ? It is likely, that more respect will be paid to the sentence of another (a) The constitution was agreed to, the 10th of September 1776. 414 1788] OF DELAWARE. W. B. v. Latimer. *viii court of admiralty, than to that of our own ? And ought not the *com-plaint of a stranger, a neutral, a friend, to be as much regarded in our courts of justice, as that of an inhabitant? If once such a contest shall be opened, between the jurisdiction of admiralty courts of prize, and that of common-law courts, courts founded upon different principles, and governed by different codes, it would be almost impossible to describe the confusions and mischiefs that must inevitably follow. The evil will appear to be still increased, if it be considered that this contest would be carried on, by a number of common-law courts, in several states, against an admiralty jurisdiction, necessarily blended with the very nature of their federal union, (a) The law delights in certainty and quiet, because, without these, there can be no liberty. Much has been said in praise of trial by jury, and as much against admiralty courts, “ in each of which,” it has been alleged, “ a single judge presides, who may draw actions into his jurisdiction, by giving them what name he chooses, and decree in them as he pleases.” If any citizen of United America does not value trial by jury, at its justly high worth, he is incapable of duly estimating any of his political rights. But if, by the constitution and laws of our country, a j urisdiction is to be exercised in another manner, it is our duty to observe the constitution and laws, without perplexing ourselves by reflections on the excellency of trial by jury. Congress, after the experience of several years, found it requisite to resolve, that trials in the admiralty courts, in cases of captures, should not be by jury. And it is to be noticed, that the act of assembly, under which, it is contended, by the appellant’s counsel, that this cause ought to have been tried, gives neither trial by jury, nor an appeal. (6) Our constitution requires, to use its own words, “ the appointment of a judge of admiralty.” Our laws acknowledge his authority. Such a jurisdiction was established, throughout the British parts of this continent, before the revolution, and exists in every Christian maritime state and kingdom in Europe. The ease, the cautions, the dispatch, under this jurisdiction, are attended, in time of war, with great benefits to captors, claimants and all parties concerned. * Admitting the government of a free state to be so degraded, that r*. the “ judge of the admiralty appointed by the joint ballots of the *• president and general assembly,” as he is in this state, wants the integrity and knowledge he ought to possess, yet his irregularities are subjected to an immediate and effectual correction : for, by the resolves of congress, an appeal is given to that body, or to the persons by them delegated. When, to the care of that assembly, under Providence, the inhabitants of these states committed their liberties, lives and fortunes, surely there is no impropriety in supposing, that they might safely have been trusted to decide (a) This is evident from the confederation; and before that was completely ratified, commissions to vessels of war, and instructions, were issued by congress, bonds were given to them, and appeals were reserved to them. These powers rested upon the same principles with those, by which congress was authorized to begin, and prosecute, the late war, thoroughout its various operations. To question the validity of those powers, would seem, plainly, to impeach the justice of those operations. (&) There was a condemnation, without trial by jury, of the vessel taken by Philip Barret and others, in 1778., 415 ix COURT OF ERRORS AND APPEALS W. B. v. Latimer. [Sept. on such a case as the property of the Endeavor and her cargo. Yet this plain and easy method of obtaining redress, if any injury had been done, a method agreed to, upon the maturest deliberation, by United America, has been declined, and the courts of common law, in this state, are to be engaged in trying causes of prize. Let us no w attend to the sentiments of judges, (a) eminently distinguished for their abilities and learning upon this subject. “ The admiralty has jurisdiction, not only of the question, prize or no prize,but of all its consequences: this jurisdiction belongs to the admiralty, totally and exclusively ; and the courts of common law have no jurisdiction at all, in such questions.” “ Though for taking a ship on the high seas, trespass would lie, at common law, yet, when taken as a prize, though taken wrongfully, though it' were acquitted, and though there were no color for the taking, the judge of the admiralty was judge of the damages and costs, as well as of the principal matter ; and if such actions should be brought at common law, on plea of not guilty, the plaintiff could not recover.” “ It is true, the sentence of acquittal in the admiralty, is conclusive, that the ship was not lawful prize : but it is evidence of a thing, which a court of common law cannot inquire into. If the original taking be not a trespass cognisable at common law, the sentence of the admiralty court cannot give a jurisdiction to a court of common law, which it had not before.” Douglas. “ The validity of a sentence, by a court of admiralty, in a cause of prize, is not determinable by the common law.” Saunders, Hedley and Dalbo™ n. Egglesfield and WhitaU. Though the superior courts of common law, so strictly superintend the conduct of the admiralty, yet, “there is not one instance where a prohibition was ever granted in a cause of prize.” The case of Drown and Durton v. Franklyn, in the time of William III., is remarkable in this respect. On motion for a prohibition, the plaintiffs suggested, that the defendant, * q *being the king’s proctor, had libelled in the admiralty concerning a ■* ship and cargo, &c., whereas, the ship was a wreck in the East Indies, and that there had been a sentence in the admiralty that all was prize; and that, upon this sentence, the defendant libelled against the plaintiffs, charging them with embezzlement, &c. The court inclined, that the plaintiffs ought to have an opportunity to be heard, and to controvert the matter of fact; but after hearing Dr. Lane, a civilian, and considering that, upon an appeal, the appellants would be let in to controvert the right, and to disprove the prize ; and that prize or no prize, was a matter not triable at common law, but altogether appropriated to the jurisdiction of the admiralty, the prohibition was denied.” Garth. 398, 474. “ The question, prize or no prize, is the boundary line.” “ The true reason why the jurisdiction is appropriated to the admiralty, is, that prizes are acquisitions jure belli j and jus belli is to be determined by the law of nations, and not by the particular municipal laws of any country.” “ The jurisdiction of a court of admiralty, generally, is limited to matters arising upon the high seas, and is, in that respect, local; but it is not so in cases of prize ; for in them, the jurisdiction does not depend on the locality, (a) Hale, Holt, Lee, Mansfield, Buller, with the unanimous assent of their brethren, the other judges. 416 1788] OF DELAWARE. x W. B. v. Latimer. but the nature, of the question, which is such as it not to be tried by any rule of the common law, but by a more general law.” Douglas. If the validity of a sentence by a court of admiralty in a cause of prize, is not determinable by a court of common law; if, even after an acquittal by the admiralty, declaring the ship to be no prize, an action at common law is not maintainable for the capture, or for any transaction in consequence of it, certainly the proceedings in the court of common pleas, are not warranted by law. We now proceed to the second principal point. It is contended by the counsel for the appellant, “ that if the court of admiralty had jurisdiction, yet the judgment in replevin being subsequent to the decree of condemnation, is an affirmance of property in the appellant, of which, as such an affirmance, we are bound to take notice, and thereby to be concluded.” As this assertion, if well founded, will be productive of very important effects, it deserves a strict investigation. If the court of admiralty had jurisdiction of the original cause, that is, of the capture as prize, it is equally plain, from the books, that it had jurisdiction of all consequences, to the exclusion of every court of common law. The action of replevin, for the Endeavor and her cargo, ought not, therefore, to have been brought. The court of common pleas had no jurisdiction in the case. Again, if the court of admiralty had jurisdiction, an injury was done to the respondent, by the determination of the common pleas, that the court of admiralty had not jurisdiction ; *and if, by the judgment in replevin, we are estopped from relieving him, though he applies to us L for relief, in a legal manner, here is an injury that must for ever remain without a remedy ; which the law justly abhors. These irregularities may be’ set right, by a due arrangement of the several parts of this cause. On the trial in the common pleas, the respondent tendered two bills of exceptions. In one of them, he objected to the record in the action of replevin being given in evidence against him, “ inasmuch as he was not a party to the same : but the court overruled the objection.” On this point, their judgment, supposing they had jurisdiction, appears to have been regular. In the other, he objected to the decision of the judges, that “ the court of admiralty had not jurisdiction.” These bills are separate; these objections are distinct. If, on either of them, an erroneous decision was given, wrong was done to the respondent, or, to express it in other words, that was dealt out to him for law, that was not law : yet it is urged by the appellant’s counsel, that they ought to be considered together, as utterly to deprive the respondent of all benefit by the last, (a) The question before us, is not, whether a judgment by default in replevin, is an affirmance of property : but whether, in the present instance, we are obliged to consider it as such an affirmance. The judgment in replevin, was merely a piece of evidence given to the jury ; it had its effect, mingled with other evidence, in the general verdict. It is impossible for us, with any respect for substantial justice, to separate it from the other evidence, (a) If, upon a trial, a party takes several bills of exception ; and upon a writ of error, succeeds in supporting only one of them, the judgment below is to be reversed, because he was injured by this decision against him, though he was not by the rest 4 Dall.—27 417 xi COURT OF ERRORS AND APPEALS [Sept. Robinson v. Adams. shut up in that verdict, because it is impossible for us to determine, what effect the proceedings in the court of admiralty would have had upon the jury, if the judges of the common pleas had not condemned them, by deciding, that “ the court of admiralty had not jurisdiction.” In what inextricable confusion should we involve the merits of this cause, by regarding the judgment in replevin, as an affirmance of property in the appellant, superseding every other consideration ? The question before us, on this point, finally resolves itself into the same that was before the judges of the common pleas, that is, whether the judgment in replevin, was regularly admissible as evidence, “ inasmuch as the respondent was not a party to it,” not* what was its legal operation on the property in contest. The law is clear, that “ a bill of exceptions is not to draw the whole matter into examination again. It is only for a single •• t point.”(a) *Not one case has been produced, by the learned counsel J for the appellant, to show, that, upon a bill of exceptions to another point, and after a general verdict, we are bound to consider a judgment by default in replevin, brought before us, as this is, as an affirmance of property ; though struck with the position, we desired that such a case, if to be found, might be produced. Not a case has been offered, that can, by any analogy, be made to maintain the inference drawn in behalf of the appellant. The judgment of the supreme court affirmed. Robinson et appellants, v. Lessee of Adams, respondent. Construction of will. Testator devised as follows, “ Item, I give to my two sons, namely W. and F., all my land at, &c., to be equally divided between them and their heirs for ever: If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if T. should die before he comes to lawful age, I give his share of land, where W. now lives, to my daughter E., to her and the lawful begotten heirs of her body for ever ; provided, T. have heirs, before he comes to lawful age, then to him and his heirs for ever; and likewise, if W. should die, without heirs, to go to F., and if A. should die, without heirs, to go to V.; and if J. should die, before he comes to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter 0., to her, and her lawful begotten heirs of her body for ever held, that W. took an estate in fee-simple, subject to an executory devise to F. An action of trespass of ejectment was brought by the respondent against the appellants, in the common pleas of Sussex, for a tract of land situated in that county. The action was removed into the supreme court, by certiorari ; and upon the trial there, the jury found a special verdict. The verdict states, “ that Thomas Bagwell was seised in his demesne as of fee, of a moiety of a tract of land, called Long Neck, of which the land (a) Evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury; each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality that migl t arise in his own breast. If, either in his directions or decisions, he mis-states the law, by ignorance, inadvertence or design, the counsel on either side may require him, publicly, to seal a bill of exceptions, stating the point wherein he is supposed to err. 3 Blackstone 372; Buller 31CA 418 1788] OF DELAWARE. xii Robinson v. Adams. in question is part, and, by his will, dated the 15th day of April 1690, devised the same in manner following :—‘ I, Thomas Bagwell, &c., for my worldly estate that the Lord hath endowed me with, do give and bequeath as follow-eth : Item, I make my dear wife the executrix. Item, I give to my two sons, namely, William and Francis, all my land at the Horekiln, in Sussex county, &c., to be equally divided between them, and their heirs for ever. Item, this plantation, where I now live, &c., I give to my son John, to him, his heirs for ever; that is, from a white oak, by the creek side, &c., to the head line. - Item, I give to my son Thomas, the rest of my land here, to be equally divided, and he to have share in the orchard ; and likewise my part of the cedar island, I give to Thomas and John, to be equally divided between them, to them and their heirs for ever; only my two daughters, namely, Ann Bagwell and Valiance Bagwell, to have an equal share of the said island, so long as they keep themselves unmarried, and no longer. Item, I give to my son Thomas, two hundred acres of land, adjoining William Burton’s branch, to him and his heirs for ever. Item, I give to my son John, one negro woman. *Item, I give to my daughters, Ann and Valiance, two bun-dred twenty and five acres of land, adjoining John Abbot, Thomas Mills and Francis Wharton, to them and their heirs for ever. If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Tilney, to her, and the lawful begotten heirs of her body for ever ; provided Thomas have heirs, before he comes to lawful age, then to him, and his heirs, for ever : and likewise, if William • should die, without heirs, to go to Francis ; and if Ann should die, without heirs, to go to Valiance ; and if John should die, before he comes to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter Comfort Leatherberry, to her and her lawful begotten heirs of her body for ever. Item, I give to every one of my grandchildren a calf, to them and their heirs for ever; to my daughters Ann and Valiance, a feather bed a-piece, to them and their heirs for ever; to my four sons, Thomas, William, Francis and John, a gun a-piece, to them, and their heirs for ever ; to my son Thomas, my pistols and holsters, for ever, &c. And all the rest of my personal estate, I give to my wife and my six aforesaid children, to be equally divided among them, to them and their heirs for ever ; to wit, Thomas, William, Francis, John, Ann and Valiance. I set my boys at age at eighteen, and my girls at sixteen ; and their estate to be divided presently after my decease, by my friends William Curtis, William Burton and William Parker, which I leave overseers over my children, &c.’ “ That the testator died seised as aforesaid; that his will was duly proved, the 16th of September 1690 ; that he left issue, all his sons and daughters before mentioned ; that after his death, William, his eldest son, entered into the premises in the declaration of the plaintiff mentioned, and being thereof seised, died intestate, leaving issue William, his only son, by one venter, and Agnes, his only daughter, by another venter ; that the said William and Agnes, after their father’s death, entered into the premises of which he died seised, and made partition, as by the records of the orphans’ court appeareth, and the lands in the declaration mentioned were allotted to the said William, the son, who died intestaC, seised thereof, 419 xiii * COURT OF ERR*ORS AND APPEALS [Sept. Robinson v. Adams. leaving two daughters, Patience and Elizabeth, and a widow, Ann; that the said Ann, as tenant in dower, and the said Patience and Elizabeth, as heirs of the said William, entered, and were seised, &c.; that the said Patience and Elizabeth died without issue; that their mother, Ann, married Benjamin Burton, and died, leaving issue by him, two daughters, Ann and Comfort, who entered, and were seised, &c.; that the said Ann married Thomas Robinson, and died, leaving issue, the appellants; that Comfort died without issue ; that Agnes, the daughter of William Bagwell, the first, married John Adams, by whom she had issue, several children, of whom John Adams, the lessor of the plaintiff, is the eldest son and heir-at-law ; that he entered and demised, &c., upon whom the defendants entered, &c. But, whether upon the whole matter, &c., the jurors doubt, and pray the opinion of the court, &c. And if, &c., they find for the plaintiff, and assess damages, to five shillings and six pence for costs, besides the costs expended : but if, &c., they find for the defendant.” Upon this verdict, the supreme court, in April 1787, gave judgment for the plaintiff, from which judgment the defendants appealed. An habere facias possessionem was awarded to issue, for delivering possession to the plaintiff, upon security tendered, &c. It is stated, by the counsel on both sides, that the only question in this cause is, whether William Bagwell, the son of Thomas Bagwell, took, under his father’s will, an estate in fee-simple, or an estate in fee-tail. If he took an estate in fee-simple, then, by our intestate acts, that estate is vested in the appellants. If he took an estate in fee-tail, the land in question descended to the lessor of the plaintiff, now respondent, the heir-in-tail. It is time that this controversy should be finally decided, or, large as the contested property is, it may prove ruinous to all persons concerned. We are -informed, that several suits have been brought for this estate ; verdicts given against one another; and contradictory opinions, of very eminent lawyers, in several parts of America, obtained. The present action has continued above fifteen years. It is contended by the counsel for the appellants, that William Bagwell, the devisee, took an estate in fee-simple, subject to an executory devise to Francis Bagwell, contingent on William’s dying under age, and without issue. Their argument opened with an observation, that “ estates in fee-tail are no favorites of the law, and particularly ought not to be so, under republican forms of government, so that if there be any doubt in this case, the determination should incline rather towards the appellants, than the respondent.”^) (a) It is greatly to be desired, that the persons appointed by our courts, for viewing and dividing lands among the children of intestates, would not suffer themselves so easily to be prevailed upon to report, that the lands will not bear a division. Thus, very often, an estate is adjudged, as incapable of division, to one of the children, that might well be divided into five or six, if not more, farms, as large as many in the eastern states, upon which the industrious and prudent owners live very happily. By the usual way of proceeding among us, one of the children is involved in a heavy debt, that frequently proves ruinous to him; or, if the debt of valuation is paid to the other children, it is in a number of such trifling sums, and at such distances of time, one from another, that they are of very little use to those who receive them. This matter deserves very serious consideration. It is much to be wished, that every citizen could possess a freehold,though some of them might happen to be small. Such a disposition 420 1788] OF DELAWARE. Robinson v. Adams. *xv *“ The intention of the testators,” say the counsel for the appellants, “ ought to prevail in the construction of wills; that these are presumed to be made in extreme weakness, and without good advice; that, therefore, great indulgence has been shown to improprieties of expression ; and judges have frequently added, subtracted, changed and transposed words ; that, according to this rule, these words in the will, ‘ and likewise, if William should die without heirs, to go to Francis,’ should be read thus : ‘ and likewise, if William should die, before he comes to lawful age, without heirs of his body, his estate to go to Francis that this alteration is agreeable to the meaning of the testator, because, after having just before mentioned his children, and William amongst them, he says, ‘if any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors and then, immediately proceeds, binding this part and the following into one sentence, by these strongly connecting explanatory words, ‘ that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Til-ney, to her and her lawful-begotten heirs of her body for ever ; provided, Thomas have heirs before he come to lawful age, then to him and his heirs forever ; and likewise, if William Bagwell should die, without heirs, to go to Francis, &c.that this construction is consistent with the design of the testator, expressed in the foregoing part of his will, where he gives William an estate in fee-simple ; that this estate, being given to the testator’s immediate heir-at-law, ought not to be diminished by the following words, unless they necessarily require it so to be ; that they do not thus require it to be diminished ; that all the different parts of the will are reconcilable; that there was a fee-simple given to William, with an executory devise over to Francis, upon the contingency of William’s dying before he came to lawful age, and without heirs of his body ; that the contingency never happened; but William died seised of the fee-simple.” Many authorities have been read, and ably applied, in support of these principles. By the counsel for the respondent, it is urged, “ that the construction contended for, on the other side, is arbitrary and inadmissible ; that there is plainly an estate in fee-tail given to William Bagwell, because it is impossible, as was conceded *by the counsel for the appellants, *-that he could die ‘ without heirs,’ as long as his brother Francis, to whom the limitation over is made, was living ; and therefore, that limitation demonstrates, that by the words ‘ without heirs,’ was meant, ‘ without heirs of his body ;’ that there is no necessity for overthrowing the fee-tail, thus evidently limited; that the words, ‘ if any one of my aforesaid children should die, before they come to lawful age,’ &c., were proper, if only some of them were under age ; that there is reason to believe, from the facts stated, of William’s being the eldest son, and of his living by himself ; and more especially, from the words made use of in the limitation over upon his death, in which there is no mention of his ‘ dying before lawful age,’ that he was of age, at the making of the will; that this construction is con- of property cherishes domestic happiness, endears a country to its inhabitants, and promotes the general welfare. But whatever influence such reflections might have upon us, on other occasions, they can have little, if any, on the present, for reasons that will hereafter appear. 421 xvi COURT OF ERRORS AND APPEALS [Sept. Robinson v. Adams. firmed by the limitations over, upon the deaths of Thomas and John, which are expressly made to depend not only upon their 1 dying without heirs,’ as with respect to William, but also upon their dying, before they come to lawful age that these words are omitted again, in the limitation over upon the death of Ann, and in all probability, for the same reason ; that the testator has in this manner, repeatedly varied his language, in conformity to his own views ; that these views, thus declared, ought not to be controlled by implications, and disappointed by additions, subtractions, changes or transpositions, supposed to be more agreeable to his mind ; that this would be to make wills, not to interpret them ; that the construction in favor of the respondent is more easy and natural than that in favor of the appellants, and is much recommended, by not offering such violence to the expression of the testator.” The counsel for the respondent have insisted on this construction, with a great force of argument, drawn from reason and authorities. We have, therefore, thought fit to employ a considerable time in our deliberations upon this cause. It is agreed, by the counsel for the appellants and for the respondent, that the intent of the testators ought to govern in the construction of wills, except where a disposition is made contrary to law. As there is no such disposition now in question, the sole inquiry is, what was the intent of the testator ? This intent is to be collected from the entire will, and not from any disjointed parts. Technical terms are not necessary for conveying it; and if such are used, their legal acceptation may be controlled by other words, plainly declaring the meaning of the testator. (2 Bl. Com. 379 ; 2 Burr. 770 ; 1 Ves. 142 ; Doug. 309, 327 ; Cowp. 239, 659 ; Vin. tit. Devise, 181.) No words are to be rejected, that can possibly have any sense assigned to them, not incompatible with clearer expressions, or manifest general intent. (Cases temp. Talbot 29 ; 6 Mod. 112.) In the present instance, the testator, at first, certainly gives a *fee-*xvii 1 s^mP^e his son William : yet, if the devise over to Francis, “ if J William should die without heirs,” is a substantive clause, independent of the next foregoing clause, that begins with the words, “ if any one of my aforesaid children should die, before they come to lawful age,” the fee-simple is turned into a fee-tail. On the other hand, if these two clauses are but parts of one continued sentence, through the whole of which, the testator’s disposing design holds on, uncompleted, until the conclusion, then the fee-simple remained in William, with an executory devise to Francis, dependent on the event of William’s “ dying without heirs ” of his body, and “ before he came to lawful age.” It has been strongly objected by the respondent’s counsel, that the construction urged for the appellants, breaks through the words of the will, to let in an estate by implication, under the notion of a power being vested in judges to determine the intention of the testator, by adding to, or taking from, his words ; a construction, so severe, that it may well be compared to the bed of Procrustes; if the expression is too short, rack it out; if too long, lop off part.” The power of judges would, indeed, be as exceptionable as it is represented to be, if as extensive as it is supposed to be, in the objection : but the alteration of words, by judges, in considering wills, are not made, strictly speaking, to discover the intention of testators, but only 422 1788] OF DELAWARE. xvii Robinson v. Adams. to express it properly when discovered. They do not introduce a supposed intention, but wait upon the true intention. It was observed, in answer to this objection, by the learned gentleman who replied for the appellants, “ that the respondent’s counsel themselves, make use of implications, in sustaining their own construction ; for in order to form the estate-tail, asserted by them to be limited to William Bagwell, they are obliged to this clause, ‘and likewise, if William Bagwell should die without heirs,’ to add these words, ‘ of his body ;’ and again, to render their construction consistent with reason, they are compelled to allow that the limitation over to Francis gives him a fee-tail, according to the intention of the testator, though only an estate for life, according to the words of the will.” There is great weight in this observation. It proves the will to be so defective in expression, that, though the two parties are led into opposite deductions, yet each of them is under a necessity of being guided by implications. Nor is the use of implications, while bounded by legal limits, to be condemned; because they are to be admitted only for effectuating the general intent of testators. (1 Burr. 50, 51.) We must, therefore, still recur to the original question, what was the intention of the testator? *The attempt of the respondent’s counsel r* ••• to show, that William was of age at the making of the will, is in- L genious. However, the fact is not found, and we cannot suppose it. Indeed, it appears to be contradicted by these words, “ All the rest of my personal estate I give unto my wife and my six aforesaid children, to be equally divided among them, to them and their heirs for ever, viz., Thomas, William, Francis, John, Ann and Valiance Bagwell. I set my boys at age at eighteen, and girls at sixteen, and their estate to be divided presently after my decease, by my friends, &c., whom I leave as overseers over my children, &c.” Here the word “their” plainly refers to his “boys” under eighteen, and the words “ estate to be divided presently, &c.,” refers to the foregoing words, “to be equally divided among them, &c.;” and as William is named as one of the “ six aforesaid children,” among whom the residue of the personal estate was thus “ to be equally divided, &c.,” he and the other five children seem to be classed together, as being all under age. It is true, that these words, “ if any one of my aforesaid children should die before they come to lawful age, their lands to go to the survivors,” do not prove, by their relation to what went before, that William was then under age, though he was one of the “ aforesaid children:” for, as was observed by the respondent’s counsel, the words may well be satisfied, if only some of them were under age. But these words, taken in connection with those that precede, and with those that follow them, acquire a very different and a decisive force. The directions, at first, are only general, relating, without name, to “ any one of the aforesaid children,” and without distinction, “ to the survivors.” These general terms are immediately succeeded by this explanatory specification : “ that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Tilney, to her and her lawful-begotten heirs of her body for ever; provided, Thomas have heirs, before he comes to lawful age, then to him and his heirs for ever ; and likewise, if William Bagwell should die, without heirs, to go to Francis; and if Ann should die, without heirs, to go to Valiance; and if J.ohn should die, before he come to lawful age, without 423 xviii COURT OF ERRORS AND APPEALS Robinson v. Adams. [Sept. heirs, then his share of land here, where I now live, I give to my daughter Comfort Leatherberry, to her and her lawfully-begotten heirs of her body, for ever.” Construing these words, “ that is,” according to the common manner of speaking, and so they ought to be construed, it is plain, that the testator designed, in his subsequent words, to be more particular or exact than he had yet been, and as in these, he mentions William again, and makes a substitution in case of his dying, it is evident, that William was meant, by the testa-*xix 1 ^°r’as *“ One ” hi® “ children,” whose lands, if they “ should J die, before they came to lawful age,” should “ go to the survivors.” It is remarkable, how much pains the testator employed, in this part of his will, to prevent his meaning from being mistaken. In the limitation over, if Thomas should die, he applies his former direction thus : “ that is, if Thomas should die, before he come to lawful age, I give his share of land to my daughter Elizabeth Tilney, &c.” And then, to guard against a misconstruction of these words, whereby Thomas’s issue might be disinherited, in case Thomas should die, before he came to lawful age, leaving issue, subjoins, “ provided, Thomas have heirs, before he comes to lawful age, then to him and his heirs for ever.” No point of law can be .clearer, than that this devise gives a fee-simple to Thomas, with an executory devise to Elizabeth Tilney, if Thomas should die, without heirs of his body, and before he should come to lawful age. Why should not the like provision be extended to the case of William, when the testator, after this full exposition of his mind with regard to substitution, instantly adds, “ and likewise, if William Bagwell should die without heirs, to go to Francis.” The most obvious and natural construction of these words is, that William’s estate should be no otherwise affected by the limitation over to Francis, than Thomas’s was by the limitation over to Elizabeth; though, perhaps, the testator also meant, that Francis should take such an estate as Elizabeth would take on a similar contingency. This construction is further recommended, by the consideration, that the limitation over to Francis is nonsense, it not being said, what is “ to go” to him, unless it refer to the preceding words. The very imperfection in this part of the will carries strong evidence in it, that the testator, at the instant of using this expression, united it, in his idea, to the antecedent part, especially, as he employs the same peculiarity of phrase for transferring the estate, in both places. The beginning of this explanation states Thomas to be under age: the conclusion of it states John to be under age : between these are comprehended the provisions respecting William and Ann. From first to last, the words are all connected by the word 11 and,” without the intervention of any stop. If, then, the two extremes relate to persons under age, and are confessedly explanatory of the general directions first mentioned, the intermediate parts must also refer to persons under age, and be explanatory of the same directions as to them, for there is no period at which the explanation rests, before the end of the devise to Comfort Leatherberry. We can easily account for inaccuracies in the testator’s expressions, from sickness, hurry, want of knowledge or assistance: but we cannot account ** * -| for such an inequality of distribution as *is required by the construc- ’■* tion in behalf of the respondent. The testator’s offspring appear to 424 1788] OF DELAWARE. xx Robinson v. Adams. be alike objects of his parental affection and providing care. Yet, what a needless, useless and incumbering diversity of regulations is introduced, if Thomas took a fee-simple, with an executory devise to Elizabeth ; William, a fee-tail, with an estate for life, or fee-tail limited to Francis ; Ann, a feetail, with an estate for life, or a fee-tail limited to Vallance; and John, a fee-simple, with an executory devise to Comfort ? On the contrary, the construction in favor of the appellants, gives a sameness of arrangements, correspondent with the sentiments of the father towards his children. Each son took an unfettered estate, that is, a feesimple, in the part devised to him ; of course, if any son “ came to lawful age,” he might dispose of his share as he pleased ; if any son died, “ before he came to lawful age,” leaving issue, the estate went to that issue ; but if any son died, before he came to lawful age, and without leaving issue, the estate went to the substitute. This, we believe, to have been the testator’s design; and we think, he manifested in it great prudence, and a paternal impartiality. It has been observed, by the respondent’s counsel, “ that this construction would carry the estate entirely from the descendants of the testator into a strange family, and the respondent’s lessor would suffer the peculiar hardship of being stripped of the inheritance, though he is heir of the testator and of the devisee.” It is impossible to calculate hardships of this kind, amidst the mutabilities of human affairs. It is to be remembered, that William Bagwell, the devisee and heir of the testator, was succeeded by his son William, and this William by his two daughters. Thus, the construction of the counsel for the appellants, allows a fee-simple to the heirs of the testator and devisee for several generations. About fifty years ago, as appears from the records of the orphans’ court, the mother of the respondent’s lessor obtained a partition with her brother William, the second, of the lands devised by the testator to William, the first, their father, as of an estate in fee-simple, and the lands assigned to her for her share are held under that partition to this day. It would have been thought, at that time, extremely hard, if it had been insisted, that William, the grandfather of the respondent’s lessor, took in feetail the lands devised to him by this will, that, therefore, upon his death, the whole descended to his son William, and that his daughter Agnes was not entitled, under our intestate acts, to any part of so large an estate. Now, the complaint is directly reversed, and the construction that inured to the great benefit of the mother, is reprobated by the son, claiming under her title. Yet, if either of the daughters of William, the second, had issue surviving, the same interpretation of this will would now suit the r* . respondent’s *lessor, that heretofore was so advantageous to his *-parent. The true construction of a will is to be collected from the words ; and is not to be affected by collateral circumstances; consequently, not by events subsequent, remote, uncertain, and utterly unconnected with the contingencies alluded to in the will. (3 P. Wms. 259 ; Salk. 232, 235 ; 3 Burr. 1581.) This rule cannot be departed from. The security of property, and the order of society, depend on an observance of the laws. Our construction of this will, appears to us, to be strengthened by three considerations, which we shall now mention. 425 xxi COURT OF ERRORS AND APPEALS [Sept. Robinson v. Adams. 1st. It is very credible, that when a person undertakes to make a will, he means to dispose of all his property; and though we do not perceive any sufficient reasons why this well-founded presumption might not be generally adopted as a guide in the interpretation of wills, especially, in devises to children and other lineal descendants of the testator, (a) where the gifts dictated by fatherly affection, as its last acts of kindness, may justly be deemed as designed to be the most beneficial to the objects of it, if no restriction is declared ; yet, it must be acknowledged, that we do not recollect any case where it has been so adopted. Judges, however, have availed themselves of short and slight intimations in wills to this purport; have exerted themselves to render the disposition commensurate to the intention ; and have particularly relied on such words as are used in this will, “ for my worldly estate, &c.,” to prove that the testator designed to devise all his interest in an estate. Ibbetson n. Beckwith, Cas. temp. Talb. 157; Tanner n. Morse, Ibid. 284 ; Tufnell. Page, Barnard. 9; Cowp. 355; Grayson n. Atkinson, 1 Wils. 333 ; Frogmorton n. Holy day, 3 Burr. 1622-3. This inference appears to be peculiarly apposite, where a question arises from various terms of limitation, or expressions tantamount, whether a devisee takes in fee-simple, or in fee-tail. The respondent’s counsel, though strenuous advocates for their client’s pretentions, have been too candid to assert, that the estate given to William, and according to their idea, contracted to an estate-tail, should, on failure of his issue, expand into a fee-simple in Francis. They say, “ Francis was to take the like estate that was limited to William, that is, an estate-tail.” Of course, a reversion would remain undisposed of by the testator, contrary to his design, manifested not only by the preamble of his will, but also by the * .. i conclusion of it, in which last he uses these words, *“all the rest of my personal estate I give, &c.” This clause, we believe, never would have been restricted to “ his personal estate,” if he had not been fully persuaded, that he had before disposed of all his real estate. (Cowp. 307 ; 3 Burr. 1622, 1623.) 2d. If it had been the intention of the testator, to give an estate-tail to any of his sons, what reason can be assigned, why he did not use plain words for that purpose? He well knew even the technical terms for creating such an estate ; and repeatedly employed them, in limitations over to his daughters, Elizabeth and Comfort, that to each of them being “ to her and the lawfully-begotten heirs of her body for ever.” But such terms he never admitted in the devise to any of his sons, nor indeed to any of his unmarried daughters. A case was quoted by the counsel for the respondent, from Pollexfen, to show, that where there is a variety of expression, there is a variety of intention. That case is very properly applicable here, for difference of language, (a) A remarkable distinction taken between a devise to a child, and a devise to a stranger, in Cro. Eliz., Fuller Fuller. In Modern Cases in Law and Equity, 132, it was held, that where a settlement is made by a lineal ancestor, in consideration of the marriage of his son, all the remainders to his posterity are within the consideration of that settlement; but when it is made by a collateral ancestor, after the limitations to his own children, all the remainders to his collateral kindred are voluntary. 426 1760] OF DELAWARE. Deering v. Parker. xxii not otherwise to be accounted for, must certainly proceed from difference of meaning. 2 Wilson 81. 3d. It is inconsistent with the testator’s intention, to construe the devise to his son William to be a fee-tail, because it is inconsistent with that meaning which he himself has affixed to the words of the devise. (2 Abr. Ca. in Eq. 298, 302.) It is observable, that the testator, in the latter part of his will, gives personal effects to the legatees “ and their heirs for ever.” Though these words*in such cases are not necessary ; yet they incontestably show the donor’s opinion of their force, and demonstrate his determination to give the most absolute estate he could give. The same was his determination, as he used the same words, in the devise to his son William, and therefore, the son took a fee-simple. The judgment of the supreme court reversed. PRIVY COUNOIL. ♦APPEAL FROM NEW HAMPSHIRE. [xxiii. July 1760. Deering, appellant, v. Parker, respondent./®) Tender.—Depreciation. A bond was given, payable 30th July 1735, “in good public bills of the Province of Massachusetts Bay, or current lawful money of New England, with interestmany partial payments had been made in a depreciated currency, and indorsed at their nominal amounts; in the year 1752, there had been a tender in bills of credit, current in New Hampshire; the province bills, contracted for, had been called in, and the currency of the country had gradually depreciated : Held, 1st. That the tender was not good, but that the partial payments ought to be allowed, according to the indorsements. 2d. That as to the balance due, the loss from the depreciated currency ought to be divided between the parties. This was an appeal from New Hampshire, heard before a Committee of the Privy Council (Lord Mansfield being one of them), on the 10th of July 1760. The facts were these : One Parker had given a bond to Deering, payable the 30th of July 1735, conditioned for the payment of 2460/., “in good public bills of the province of Massachusetts Bay, or current lawful money of New England, with interest.” There had been many payments made and indorsed. About the year 1752, the defendant tendered a large sum, in the bills of credit then current in New Hampshire, which the plaintiff refused, brought his action, and recovered judgment for the penalty in the bond, upon the verdict of a jury, in December 1758. After which, the cause was heard in the Chancery of New Hampshire, and the court decreed for the sum of 354/. 6s. 9d., in bills of credit of New Hampshire, new tenor, being (d) This report is taken from a collection of manuscript cases, upon authority that appeared respectable when it was copied; but the name of the reporter is forgotten. 427 xxiii PRIVY COUNCIL. [July Deering v. Parker. the nominal sum due at the time of the tender, deducting the sums paid and indorsed. So that the court went upon the principle, that the plaintiff should take the bills as tendered, and that the debtor was not bound to make good their depreciation, nor to pay in silver, or real money. On the side of the appellant, or creditor, it was insisted, that the payment ought either to have been in bills of Massachusetts Bay (which, it seems, were all called in, and sunk, before the tender), or in silver money, agree-* • able to queen Anne’s proclamation, *which, they insisted, was the true meaning of that clause or part of the condition, to wit, current lawful money of New England. It was also claimed by him to have all the sums indorsed, reduced in nominal sums down to the value of silver at the time of giving the bond, to wit, 27s. per ounce. On the side of the respondent, or debtor, it was urged, that current money of New England then meant, and was understood to be, indifferently, the bills of credit of any or either of the New England colonies, received in that colony in payments. That, therefore, the tender was in the specie contracted for, and that the sums indorsed were not only, of course, upon that supposition, equal to the sums expressed; but that the creditor, by indorsing, had agreed to and accepted of so much as the same expressed, in real as well as nominal sums. The Lord President and Lord Mansfield expressed themselves fully in favor of the creditor’s construction of the words, “ current lawful money of New England to wit, that it did not mean bills of credit of any colony, but the words were put in contradistinction thereto. Lord Mansfield further added, that he was clear, on the one hand, that the sums indorsed ought to be allowed according to the nominal sums so indorsed, equal to the same sums of money mentioned in the bond, and that the plaintiff had no right to have the same any way reduced or altered. On the other hand, his lordship thought that the tender was not good in any respect; for not only because it was made in a species of currency, different from that contracted for ; but also because it was out of time, being many years after the time of payment was lapsed, and also without notice. “ What (said his lordship), shall a man meet his creditor in the street unawares, and tender a debt to him ? The chancery allows six months’ notice of time and place to be given. The law of the province enabling the court to turn itself into a court of equity, and to reduce the bond to the sum due by the auditem, was a very good thing ; and what Sir Thomas Moore, in his time, labored so hard to obtain an act of parliament for here. And because the judges (with whom he had several conferences about the matter) were for retaining the old artificial way, he declared, that he would always grant injunctions in such cases. In the present case (his lordship continued), he was at no loss to determine, that the judgment ought to be reversed : but he was at a loss what rule to go by, in determining the quantum of the debt. Since the province bills contracted for were called in and gone ; with a desire to know the usage, he had inquired of Mr. I., a New England gentleman (who had practised the law), and was informed, that “ when old tenor had been contracted for, it had been allowed to be tendered, although depreciated in value, if the tender was *xxv 1 ma<^e *n 8eason* That *towards the close of existence of old tenor, and after it had been called in and sunk, when judgment was given 428 1760] MAYOR’S COURT. ’ xxv Commonwealth v. Schaffer. for real money, this matter (of how much to give) was greatly agitated. Some were for giving the value of the old tenor, or bills contracted for, as it stood when the obligation was out, or the debt became due. Others would have it settled, as it was when at the last and worst period ; and others again, were for taking a medium. But the more general method was, to take the value of the bills, when they should have been paid by the contract.” Lord Mansfield observed, that from this information, he had received much light, and was relieved from his difficulty. That much might be said, for taking as a rule the value of the old tenor, at the time set by the bond for payment. That, upon the mention of it, it struck him as the rule of right in general: but that, in the present case, the bond had been outstanding so very long, the bills of credit, which were the currency of the country, had, in the meantime, sunk gradually, and became, in some measure, every one’s loss: and that, therefore, in this case, he thought the loss ought to be divided between them. The Board, upon the whole, instead of taking the price of silver at the time of the contract, and time set for the payment (which was about 27s. per ounce), fixed it at 37s. per ounce, and computed the debt accordingly. This made about 100Z. sterling in favor of the appellant, by which he got the opinion of the court in his favor; but as no costs are allowed upon appeal, he could not be much a gainer by the general result. MAYOR’S COURT OF PHILADELPHIA APRIL SESSION, 1797. Commonwealth v. Schaffer. Criminal jurisdiction. The jurisdiction of the state courts extends to the case of a forgery of powers of attorney, to receive warrants for lands granted by acts of congress, for military services. The defendant was indicted and convicted for forging the names of several soldiers to powers of attorney, authorizing him to demand and receive their warrants for the donation of lands granted by acts of congress, for services during the revolutionary war. Dallas observed, that as the question of the common-law jurisdiction of the federal courts, in criminal cases, had not been decided, it was his duty, as counsel for the defendant (without declaring his own opinion), to bring it before the court, on the present occasion. He, therefore, moved in arrest of judgment, that the offence, charged in the indictment, arises under a law or laws of the United States; and is exclusively cognisable in their courts. After argument, the Recorder stated the facts, authorities and principles of the case, in giving the judgment of the court. Wilcocks, Recorder.—The offences charged against the defendant in the indictment, are forgeries, committed in forging the names of Allen Fox, Ebenezer Drake, Robert Battersby and Samuel Griswald, to four several 429 x xxvi ' * MAYOR’S COURT [April Commonwealth v. Schaffer. powers of attorney, to demand and receive from the United States, for each of them, 100 acres of: land ; they having all been soldiers, who enlisted to serve during the late war with Great Britain, and who served through the war ; and in consequence, under various acts of congress, each of them was entitled to a donation of 100 acres of land. In support of this motion in arrest of judgment, made by Mr. Dallas, the constitution of the United States has been cited ; Art. HI., § 2, p. 12 ; * .. -i the Judiciary Act of Congress, § 9, p. 97; § 11, p. 98, 99 ; § 34, xxviLj 2 vol. Resolves of Congress, 16th *Sept. 1776, p. 357-8; p. 361; 18th Sept. 1776, p. 365; 20th Sept. 1776, p. 456; 12thNov. 1776, p. 438; 30th Oct. 1776; Laws of U. S. p. 151, § 14; Const. U. S., art. I. § 8; 1 Black. Com. 245. It has been contended, that, under the 2d section of the 3d article of the constitution of the United States, its judicial power extends, inter alia, to all cases arising under the constitution and laws of the United states. By the resolutions of Congress, in 1776, referred to, it was shown, that the soldiers, who enlisted to serve during the war, and served to the end of it, were, individually, entitled to a donation of 100 acres of land from congress. It has been said, that an inspection of the indictment will show, that the crimes charged against the defendant, consisted in forging certain writings, which, by the rules of office, were necessary to obtain from congress the soldier’s right to lands. For this reason, and because the soldier’s rights to lands are derived under the resolves or acts of congress, the conclusion is drawn, that a state court has no cognisance of this crime, because it arises out of a law of the United States. The 9th section of the judiciary law of the United States, it is alleged, gives to the district court, exclusive of the state courts, cognisance of all crimes and offences that shall be cognisable under the authority of the United States, where the punishment is whipping under thirty stripes, &c. And § 11, p. 99, gives to the circuit court exclusive cognisance of all crimes and offences cognisable under the authority of the United States, except where that act otherwise provides, or the laws of the United States otherwise direct. It was contended, that, for the reasons before recited, showing that the offence arose out of a law of the United States, that, therefore, the courts of the United States had cognisance of it. And that, by the 9th and 11th sections of the judiciary law, their cognisance was declared to be exclusive of the state courts, unless otherwise provided by that or some other law of the United States; and it was'said, that no such provision had been made, therefore, the conclusion was, that the state courts had no jurisdiction of this offence. In answer to an objection, that the laws and constitution of the United States nowhere defined the crime of forgery, in such manner as to comprehend the offence charged in the indictment; nor was the common law of England, relating to crimes and offences, extended to the United States; nor was there any law of the United States which prescribed a punishment for forgeries generally. The act of congress for punishing certain crimes against the United States, Laws of United States, § 14, p. 151, and against *xxviii 1 indents or public securities of the United States, were J *cited, and the judiciary law, § 34, p. 112, which says that the laws of the several states, except where the constitution, treaties or statutes of the 430 1797] OF PHILADELPHIA. Commonwealth v. Schaffer. xx\ iii United States shall otherwise require, shall be regarded as the rules of decision, in trials at common law, in the courts of the United States. ' It has been inferred from hence, that the rule of punishment, in this case, would be the rule of the common law, if it obtained in the state, or such rule as the law of the state provided. 4 Bl. Com. 245, has been referred to for the definition and punishment of forgery at the common law. Henfield''s case has been referred to, which was an indictment in the circuit court of the United States, for a misdemeanor ; that he, being a citizen of the United States, entered on board a French privateer, to cruise against the British, with whom the United States were at peace, under a treaty. Hawara's case was also cited, who was a consul from the state of Genoa to the United States, and indicted in the district court of the United States, for a misdemeanor in sending a threatening letter to Benjamin Holland, for the purpose of obtaining money from him. It was said, that there was no act of congress which either defined the offence or the punishment in those cases ; but it was said, that the common law would give the rule for both. It was argued, that whatever was necessary to the existence of the United States, must not depend upon the state courts. That this offence was committed in prejudice, and to the injury, of the United States, and therefore, the jurisdiction of it belongs to the courts of the United States. That under the constitution of the United States, no power is given to punish the offence of stealing records, robbery, perjury, and the laws of congress (p. 153) prescribe the punishment of these offences in particular cases. As the laws of congress have made provision, in these cases, without any power given by the constitution expressly for the purpose ; in the same manner, the authority of congress is competent to declare, by law, how the offence charged against John Schaffer, shall be tried and punished. And therefore, it is an offence not of state cognisance, but ought to be tried in the courts of the United States only. Mr. Ingersoll and Mr. Thomas, in support of the jurisdiction of the court, referred to the following authorities. Const, of U. S. art. III. § 2 ; art. I. § 8, p. 8 ; 12th Amend. Const. U. S.; Resol. of Cong. vol. 8, p. 289 ; 4th July 1783, lb. vol. 10, p. 366 ; 1st Aug. 1786, lb. vol. 12, p. 114 ; 23d July 1787, 2 vol. Laws of Cong., p. 49, 52, 154 ; 2 vol. Federalist, p. 323, 324; Const. U. S. art. I. § 8 ; Laws of U. S. § 16, p. 151. *From these sources, r*xxjx a system of argument has been drawn, which, as it has been generally L adopted by the court (in the sentiments they have formed) I shall forbear to state it minutely, but proceed to deliver the opinion of the court on the case before them. The soldier who enlisted to serve during the war, and afterwards continued to serve to the end of it, had a right to demand and receive from the United States, a promised donation of 100 acres of land. This right had its inception under several resolutions of congress, passed in the year 1776, and it became a perfect right, at the close of the war, in the year 1783. The commonwealth of Pennsylvania, for a long course of time before the revolution, down to the present day, has always had subsisting laws, competent to the trial and punishment of every species of forgery that could be fabricated. In the year 1789, when the constitution of the United States was completely organized, it found this commonwealth in full possession of jurisdiction over this forgery. And as offences on this subject may have occurred after the 431 xxix MAYOR’S COURT [April Commonwealth v. Schaffer. peace, and before the existence of the present constitution, it is possible, that some instances of prosecutions on similar papers, may have taken place in the courts of this state, before the establishment of it, as several have been known to take place, in this court, since that period; particularly in the cases of Dixen, and Me Conchlan and wife. The important question is—what has been the effect of the constitution of the United States (and the laws which have been enacted under it), to divest this commonwealth of a jurisdiction of which, at the time it was made, it found the state constitutionally possessed ? The 1st and 3d articles of the constitution of the United States principally affect this question ; they respect the legislative and judicial powers, and contain an extensive enumeration of subjects whereon their legislative power may be exercised, and to which the judicial power shall extend ; and it is reasonable to say, that there may be powers which are not enumerated in it, but ought to be considered as granted by the constitution ; for instance, those (if such there be) which are essential to the independence of the government, to its protection and defence, to such as grow out of the constitution, and out of the constitutional laws of congress. If it be true, that this offence may be considered as growing out of an act of congress, because, if congress had never engaged to give lands to soldiers of a particular description, there never could have been a forgery of such a power of attorney : yet, it still remains a question, whether, under all existing circumstances, this court has jurisdiction. If the authority of congress is competent to declare the false making such a paper to be a * -| (‘-rime of forgery, to prescribe its *punishment, and to appoint the ’J place of trial to be in the courts of the United States, exclusively of the state courts; yet, on examination, it will be found, that congress has not, by an act, legislated on any of these points. No act of congress has, either definitely or by general description, made the false fabrication of such a writing to be a forgery, nor has any act declared how such a forgery or forgeries, generally, shall be punished. No act has given jurisdiction to any court, either concurrent or exclusive, to try the crimes of forgeries generally. If these positions be true, they tend to show it doubtful, whether, at this day, under the existing laws of the United States, this forgery could be tried and punished in their courts ; however, future laws may make them so. To say that the constitution of the United States operated any abridgment of the jurisdiction of the state courts, as to crimes generally, of forgery, perjury, larceny, merely because they related to the interest or concerns of the United States, or their officers, acting under their laws, before they themselves, by their own acts, shall have provided for the punishment of such crimes, and taken order as to the jurisdiction of them, would lead to this consequence, that for a time, consistent with such doctrine, some crimes would, by law, be subject to no prosecution or punishment. In the 2d vol. of the Federalist, pages 323, 324, which may be called a commentary on the constitution of the United States, contemporary with it, it is held, that " the states retain all pre-existing authorities which may not be exclusively delegated to the federal head ; and that this exclusive delegation can only exist in one of three ways : 1. Where an authority is, in 433 1797] OF PHILADELPHIA. xxx Commonwealth v. Schaffer. express terms, granted to the Union : 2. Or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the states : 3. Or where an authority is granted to the Union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to- think, that they are, in the main, just, with respect to the former as well as the latter ; and under this impression, I shall lay it down as a rule, “ That the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated ways.” (Page 324.) “ I am even of opinion, that, in every case in which they are not expressly excluded by the future acts of the national legislature, they will, of course, take cognisance of the causes to which those acts may give birth.” But the present case is not one of those which comes within the exceptions of that writer. 1st. The jurisdiction of this crime is not exclusively granted to the Union. 2d. It is not prohibited to the states. 3d. Nor, if it is granted to the Union, is it a case where a similar authority in the states would be incompatible. *In the act of congress (p. 147) “for the punishment of certain r*xxxj crimes,” the murders or larcenies there mentioned, are such as may be L committed within the forts, arsenals, dock-yards, federal district, places ceded by the states to the United States, or upon the high seas, perjuries in their own courts of justice under any act of congress, forgeries of indents or public securities. In general, they are those subjects submitted by the constitution to be legislated upon by them, and made subject to their judicial authority. Congress having exercised their power over many subjects submitted by the constitution, and to some arising under their laws ; but never having touched the present subject, of which this state had a pre-existing cognisance, it may be considered, as casus omissus by their laws ; and until they shall, by some future act, exercise their authority over the subject by designating the crime, prescribing the punishment, and giving to the courts of the United States exclusive jurisdiction, this court may, constitutionally, take cognisance of the cause, and punish the offence, by the laws of this state. Therefore, the 11th section of the judiciary act, which gives to the circuit court exclusive cognisance of all crimes and offences cognisable under the authority of the United States, may be reasonably supposed not to have contemplated this case, which by no act of congress is designated as a crime, nor has it any appointed punishment. The prosecution against Henfield, in the circuit court, was for a violation of his duty, as a citizen of the United States, in entering on board a French privateer, and cruising against the subjects of the king of Great Britain, with whom the United States were at peace, under the sanction of a treaty. This was contrary to the law of nations, to the treaty, and against the constitution of the United States. This was not a crime resulting from the regulations of an act of congress. Ran ar a was a public minister, a consul, and, therefore, the jurisdiction over him by the constitution was .expressly to be exercised by the courts of the United States. Neither of these cases rests upon the principles on which the present case stands, and therefore, are no authorities. The 34th section of the judiciary act (p. 112), which says, that the laws 4 Dall.—28 433 xxxi MAYOR’S COURT OF PHILADELPHIA. Commonwealth v. Schaffer. [April. of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise direct, shall be regarded as the rules of decision, in trials at common law, in the courts of the United States, plainly refers to trials of a civil nature, according to the course of the common law, and not to the trial of crimes by the rules of the common law. Upon this comprehensive view of the question, the court are of opinion, that they are competent to the jurisdiction of this cause, and therefore, do overrule the motion that has been made in arrest of judgment, founded on the objection to their want of jurisdiction. 434 INDEX. The References in this Index are to the Stab *pages. ACTION. 1. If services are rendered, merely in expectation of a legacy, without any contract, express or implied, an action cannot be maintained for them. Little v. Dawson..............*111 2. Assumpsit will lie on the part of residuary legatees against an administrator cum testamento annexo, without proof of an express assumption by him. Holloback V. Van Buskirk*Wl 3. An action can be maintained in the courts of Pennsylvania, under the authority of letters of administration granted in another state. McCulloch v. Young..................*292 See Assumpsit : Executors, 1: Partners. ADMINISTRATOR. See Action, 2, 3. ADMIRALTY. 1. In case of a capture on a navigable water, the question of prize or no prize, is within the jurisdiction of the admiralty, though the property seized belongs to a citizen of the state in which the capture was made. W. B. v. Latimer.....................App. *i AGENT. 1. If a factor be employed by several foreign merchants, unconnected with each other, he may remit, by a general bill, payable to one, with separate drafts on him, in favor of each of the others; but notice of such a remittance must be given to all the parties. In such a case, if a partial loss occurs, it must be borne as a general average, by all who are conderned. Schenkhousey. Gibbs.................*137 2. No one is obliged to accept a consignment of goods, but if it be received, the consignee, like every other agent or factor, is liable for a breach of the positive orders of his principal. Walker v. Smith................. .*389 ALIEN. See Practice, 23. AMENDMENT- 1. A writ of error, regularly tested, with a blank for the return-day, was allowed to be amended, the term to which it was returnable, the time when it was filed in the court below, and when in the supreme court, appearing by indorsements on the writ. Moss- man v. Higginson.......................*12 2. The test of a writ of error is amendable, of course. Course v. Stead..............*22 3. The writ of error was directed to the judges, &c., of the district aforesaid, and no district was previously named, but the attestation of the record was in the proper district; the record was returned from the court thereof, and the proper district was indorsed on the writ: Held, that the omission might be supplied.................................Id. 4. Where there is a variance between the writ and the count, the writ may be amended by the praecipe, and if the execution varies from the judgment, the former may be amended by the latter. Black v. Wistar. *267 APPROPRIATION. 1. A., being indebted to several persons in Philadelphia, remitted a bill to B., in his favor, A. saying at the same time, that in a few days he would send directions about its disposition, which he accordingly did, and ap. 435 474 INDEX. portioned the proceeds of the bill among certain of his creditors; subsequently, one of them laid a foreign attachment upon A.’s funds, in the hands of the acceptor of the bill, and of B.: Held, that B. became a trustee for the creditors, from the time of receiving A.’s appropriation, and that the creditors thereupon acquired such an interest ' in the trust fund, as could not be divested, or affected by the attachment. Sharpless v. Welsh..................................*279 ASSIGNMENT. 1. A., being largely indebted, many of his creditors had commenced suit against him; and when some were on the eve of obtaining judgment, A. executed an assignment of several estates to B. and 0., in trust to sell the same, and distribute the proceeds thereof, ratably, and in proportion to the whole amount of the debts of A., among such of his creditors as should, in writing, agree to accept the same, within nine months after the date of the assignment; and to pay to A. the shares of such creditors as should not so agree to accept their proportions, in order that he might therewith compound with, and satisfy such creditors; no schedule accompanied the deed; it was made without the consent of any of the creditors of A.; and there was no proof that the assignment was delivered to the assignees for more than two months after its date: Held, that the assignment was fraudulent in law, and void as against a creditor, who had obtained judgment, previously to any one assenting to take under the assignment. Burd v. Smith. .*76 1. It seems, that voluntary assignments, stipulating for a general release to the debtor, or with a classification of creditors, according to which a priority of payment is to be observed, maybe valid.............................Id. 3. Where there is an assignment for the benefit of such creditors of the assignor’s, as shall, within a certain period, execute a general release to them, a creditor who has not executed the release, cannot maintain an action against the assignees. Mather n. Pratt. *224 ASSUMPSIT. 1. Assumpsit, upon a special agreement of intestate, that if plaintiff would live with him, and work his plantation (consisting of 260 acres), until the plaintiff was of age, that intestate would give him 100 acres of it; he did so remain, but was maintained, &c., by intestate: intestate had three legitimate and three illegitimate children; he had once intimated an intention of putting plaintiff on a footing with his other children: Held, that 436 under the circumstances of the case, it would be excessive to give the full value of the land in damages; that the jury might depart from that standard, and that the intimatior of intestate, that he would give plaintiff a child’s share of his estate, might be con* strued as explanatory of his former promise Conrad v. Conrad......... .*180 See Action, 2: Infancy. ATTACHMENT, FOREIGN. See Appropriation : Bill of Exchange and Promissory Note, 1: Set-Off, 1. AUCTIONEER. 1. An auctioneer’s bond is a security for his customers, as well as for the payment of the duties to the state. Lea v. Yard.. ..*95 AWARD. 1. An award of referees cannot give a right to land, but will settle a dispute about it, either in an ejectment, or in an action of trespass, and such an award may be conclusive, if this be the agreement of the parties. Calhoun's Lessees. Dunning...........*120 2. An award, under a submission by an arbitration bond, will not be invalidated, except for a plain error in law or fact, specifically set forth: the court will not exercise its equitable powers, except where it can do justice to both parties. Williams v. Paschall... .*284 See Referees, 1. BANK CHECK. See Payment, 1. BANKRUPT. See Repeal. BILL OF EXCEPTION. See Practice, 7, 25. BILL OF EXCHANGE AND PROMISSORY NOTE. 1. A promissory note, expressed in commercial form, was made in Philadelphia, dated there, and made payable at the Bank of the United States, but it was delivered in New York: Held, that it was to be governed by the law of the latter place. Ludlow n. Bingham................................*47 2. The note was indorsed in blank, and a for eign attachment was served on the maker INDEX. 475 while the note was in the possession of the defendant to the attachment, who, after such service, passed the note to a third person, for a full consideration: Held, that the attachment could not be sustained...........Id. 8. If an indorsee of a bill, which has been protested, promises to pay it (although the protest has not been transmitted to him), he is bound by such promise; unless at the time of making it, some material fact was unknown to him. Donaldson v. Means. *109 4. Notice of non-payment of a promissory note, by the maker, must be given by the holder to the indorser, with a demand of payment from him, within a reasonable time. Bank of N. America v. Pettit*127 5. What constitutes a notice within a reasonable time, still remains, in Pennsylvania, a fact for the jury to determine...................Id. 6. The indorser of a promissory note, must receive notice, within a reasonable time, of the non-payment of the note by the maker. Bank ofN. America v. Wycoff.................*151 7. A & B. being indebted to 0. & Sons, foreign merchants, delivered a bill of exchange, drawn by one S., and indorsed by A. & B., to C., one of the firm of 0. & Sons, but he refused to remit it on their account and risk; the bill was returned unpaid and protested, and then A. & B. tendered to 0. the principal and interest of it, and demanded its restitution, with the protest, but he rejected this offer, saying, that he would settle it with S.; B. then told C., that they, A. & B., should consider the bill at the risk of C. & Sons, from that day; C. afterwards entered into an arrangement with S., and took his note for principal, damages and charges, but before the note became due, S. failed; A. & B. sued 0. & Sons for the damages included in the note, with interest from its date; and C. & Sons sued A. & B., for the original consideration of the indorsement of the bill: Held, that A. and B. were entitled to their demand, and that their debt to 0. & Sons was paid in law, by the conduct of the latter. Keppele v. Carr...................................*155 8. When a promissory note has been dishonored by the maker, the indorser is not liable to pay it, if the holder neglects to give him due notice of non-payment: what is due notice is, in Pennsylvania, a matter of fact to be decided by the jury. Ball v. Dennison....................................*163 9. Where the holder of a negotiable note indorses it to a third person, after, a commission of bankruptcy has issued against the payee, the indorsee may prove under the commission, but subject to all just off-sets, existing at the time of the bankruptcy. Humphries v. Blight.............*370 See Extinguishment. BLUNSTON’S LICENSES. See Land, 1. BOND. 1. The sureties in an official bond of a state treasurer, who has subsequently been frequently re-elected, are only answerable for a default by him, during his period of service, next ensuing the date of the bond. Commonwealth v. Baynton ...............*282 2. In an action by the assignee of a bond, againt the assignor, upon a written assignment, in general terms, parol testimony is not admissible, to show, that the defendant had expressly guarantied the payment. O'Hara v. Hall............................*340 3. The survivor of two joint obligees is, at law, entitled to the possession of the joint securities ; and a court of equity will not interfere with the disposition of them, unless some ground is laid for its interposition. Penn v. Butler ............................ *354 4. A bond was given, payable 30th July 1735, “ in good public bills of the Province of Massachusetts Bay, or current lawful money of New England, with interest;” many partial payments had been made, in a depreciated currency, and indorsed at their nominal amounts; in the year 1752, there had been a tender in bills of credit, current in New Hampshire; the province bills, contracted for, had been called in, and the currency of the country had gradually depreciated : Held, 1st. That the tender was not good, but that the partial payments ought to be allowed, according to the indorsements : 2d. That as to the balance due, the loss from the depreciated currency ought to be divided between the parties. Deering v. Parker, App. *xxiii. CERTIORARI. See Peaotioe, 15, 17, 18, 19. CHALLENGE. 1. On an indictment, under the act of congress of 26th March 1804, for casting away and destroying a vessel, of which the defendant was the owner, to the prejudice of the underwriters, the accused has the right of peremptory challenge, as at common law, on a capital charge. United Slates v. Johns... ..*412 437 - 476 INDEX. CITIZENSHIP. 1. A citizen of one state, removing to another, purchasing real estate, paying taxes and residing in the latter for about four years, becomes a citizen thereof, so far as regards the jurisdiction of a federal court, notwithstanding a temporary absence, during which he acquired and exercised municipal rights in a thir dstate. Knox v. Greenleaf.. .*360 CITY LOTS. See Land, 10. COLLATERAL WARRANTY. See Warranty. COMMISSION. 1. A commission issued to four commissioners jointly, was executed by three only, two of whom were of the defendant’s nomination; on objection by the defendant to the reading of the depositions, it was held, that the commission was not well executed. Commissioners do not derive their authority from the parties, but from the court. Guppy v. Brown............................*410 CONFESSION. See Evidence, 2. CONFISCATION. See Constitution, 1. CONSIDERATION. 1. The smallest portion of benefit or accommodation, is sufficient, to create a valid consideration for a promise. Austynv. Mclure, *226 2. A bond given in consideration of the purchase of land in Luzerne county, under the Connecticut title, is void. Mitchell n. Smith.............................*269 CONSTITUTION. 1. The act of the legislature of Georgia, of the 4th of May 1782, inflicting penalties on, and confiscating the estate of such persons as are therein declared guilty of treason, is not repugnant to the constitution of that state. Cooper v. Telfair................. .*14 2. It seems, that the supreme court of United States can declare an unconstitutional law invalid..................s...........Id. 3. Quaere ? Whether this court can invalidate laws enacted previously to the adoption of the constitution of the United States 2.... Id. 4. The act of 11th April 1795, declaring as criminal offences, the taking possession of lands, or conspiring to convey, possess or settle them, in the counties of Northampton, &c., under any title not derived from Pennsylvania, is constitutional. Commonwealth, v, Franklin..............................*255 CONTRACT. 1. Where there has been payment of the price of land, under a parol agreement for the sale of it, an action will lie to recover damages for the non-performance of such a contract. Bell v. Andrews......................*152 2. A contract to receive from “ J.B., or order,” certain stocks, is negotiable. Reed v. Ingraham ....... -.......................*169 3. Wherever there is a gross misrepresentation of facts, relating to the subject of a contract, it is fraudulent and void, as against the party who made the misrepresentation. Cochran v. Cummings..........................*250 COVENANT. 1. In an action of covenant, it is sufficient to assign the breach, in terms as general as those in which the covenant is expressed. Bender v. Fromberger...........*436, 441 2. The breach assigned was, that the defendant was not seised of a good estate m fee, &c.; and the defendant pleaded non infregit con-ventionem, and performance with leave, &c., upon which issues were joined: Held, that they were sufficient for the court to enter judgment upon.........................Id. 3. A covenant that one is seised of an indefeasible estate in fee, may be broken, without an eviction...........................Id. 4. A special warranty, in a deed, has not the effect of controlling a precedent general covenant............................. Id. 5. The covenantee of title cannot recover the value of improvements, made by him, after his purchase from the covenantor.......Id. CURTESY. 1. A tenant by the curtesy initiate, has not an estate, forfeitable upon his attainder for treason. Pemberton's Lessee n. Hicks. .*168 DAMAGES. 1. Unless the penalty for breach of a contract, is a sum agreed to be paid and received, absolutely, in lieu of performance, damages may be recovered commensurate with the injury suffered by a non-performance. Graham v. Bickham................... . *149 438 INDEX. 477 2. In cases sounding in damages, where they are susceptible of calculation by numbers, a jury ought to follow such standard. Walker v. Smith...........................*389 DESTROY. 1. The meaning of the word “destroy,” in the act of congress of 26th March 1804, is to unfit a vessel for service, beyond the hope of recovery by ordinary means; casting away, is a species of destroying. United States v. Johns..............................*412 DEVISE. 1. Testator devised as follows: “ Item, I give to my two sons, namely, W. and F., all my land at, &c., to be equally divided between them and their heirs for ever.” “ If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if T. should die before he comes to lawful age, I give his share of land, where W. now lives, to my daughter E., to her and the lawfully begotten heirs of her body for ever; provided, T. have heirs before he comes to lawful age, then to him and his heirs for ever; and likewise, if W. should die without heirs, to go to F., and if A. should die without heirs, to go to V., and if J. should die, before he comes to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter 0., to her and her lawfully begotten heirs of her body for ever: Held, that W. took an estate in fee-simple, subject to an executory devise to F. Robinson v. Lessee of Adams, App. *xii. DISCONTINUANCE. See Practice, 16. DISTRESS. 1. It need not be shown, that a distress was made on the demised premises. Water's Erfrs v. McLellan........................*208 DOWER. 1. Writ of dower, damages and costs, on. Sharp v. Pettit..........................*212 2, Testator, inter alia, bequeathed to his widow 1000Z., and appointed her and two others executors ; before his death, he had sold and conveyed certain premises, taking bonds and a mortgage from the purchaser for the purchase-money; at the suit of the executors, judgment was obtained against the purchaser, and the same property sold under an execution issued thereon; at the instance of the widow, one of the executors purchased it, for the use of the estate, who, with the consent and approbation of the widow, resold the premises ; the widow, during these transactions, never suggested a claim of dower, and the testator’s debts far exceeded his assets : Held, that if her conduct was an intimation to the public, and particularly to the parties, that she meant to waive her right to dower, her claim was barred. Deshler v. Beery.............................*300 DUTIES. 1. What is a liquidation of. Willing n. United States...............................*374 n. See Forfeiture, 1, EJECTMENT. 1. Querei Whether mesne profits can be recovered in an ejectment, by way of damages. Boyd's Lessee v. Cowan.............*138 See Practice, 12. ELECTION. 1. If a judge of an election propose illegal questions to one desiring to vote, and insist upon obtaining answers to them, before he will accept the vote, a person threatening the judge for such conduct, is not liable to an indictment under the 17th section of (the election law) the act of 15th February 1799. Commonwealth v. Gibbs..............*253 EQUITY. 1. Equity will not relieve a party who has been guilty of gross delay, and who has lain by until he could make his election, with certainty as to its result, to complete a contract or not. Hollingsworth v. Fry......*345 See Injunction : Practice, 1. ERROR. 1. Error may be waived by consent. Black v. Wistar.......................... *267 See Forcible Entry and Detainer : Partition. EVICTION. See Rent. EVIDENCE. 1. A Ihw of any of the states may be read in the supreme court, without having been 439 478 INDEX. established as a fact in the court below. Course v. Stead......................*22 2. A boy, about 12 years old, indicted for arson, in burning some stables, containing hay, &c., had made a formal, and to all appearances, voluntary confession, to the mayor of the city of Philadelphia, which was repeated at subsequent periods; previously, however, he had been visited by several persons, who represented to him the enormity of his crime, and that a confession would excite public compassion, and probably be the means of obtaining his pardon, adding, that they would be his friends; while a contrary course, in case of»his conviction, would leave him without hope; the inspectors of the prison, too, took him into the dungeon, and said, that he would be confined in it, dark and cold, without food, unless he made a full disclosure, which, if he did make, he should be well accommodated, and might expect pity and favor: Held, that his confession was admissible in evidence, and that the point for consideration was, whether the prisoner had falsely declared himself guilty of a capital offence. Commonwealth v. Dillon....................................*116 8. In ejectment, a record of an action of trespass between the defendant and one C. was offered in evidence by the defendant; C. had there pleaded liberum tenementum, and there had been a reference in the case, on which the property at present in dispute was awarded to the defendant, and it appearing that the plaintiff had never controverted C.’s right, it was held, that the record was admissible. Calhoun's Lessee v. Dunning.. .*120 4. Parol evidence of a deed is admissible, without notice to produce it, as against one, not a party to the deed; nor can he be compelled to produce it, if he is merely a witness thereto. Edgar's Lessee v. Robinson. .*132 5. Parol evidence was admitted, to explain the meaning of the words “ the deed of conveyance,” in articles of agreement, as meaning a deed conveying land free of all incumbrances. Zantzinger v. Ketch....................*132 6. A book of original entries (some of which were made in plaintiff’s handwriting, and some in that of a clerk), relating to a mercantile transaction in a foreign country, produced and sworn to by plaintiff, was admitted in evidence. Seagrove v. Redman... .*145 7. Nothing that passes before a judge, on a question of bail, can be evidence on the trial of a cause, unless it was clearly admitted as a fact, by the opposite party. . Jackson n. Winchester.............................*205 8. A copy of a manifest, taken from the'books of a custom-house, is a copy of a record, and it may be given in evidence, when properly proved. United States v. Johns....*412 9. An exemplification of a law of a state, under the great seal thereof, is admissible in evidence, without any other attestation.Id. 10. The record of a court of admiralty, is always proof of a condemnation and the cause of it. Russell v. Union Ins. Co. ,*421 11. When the record of a court of admiralty exhibits documents, which, if produced, would be admissible in evidence, and no objection has been made to the reading of them, the record is proof of the fact contained in such papers................Id. EXECUTOR. 1. If debt be brought against executors, on simple contract, it will be bad, on demurrer, but if they plead, to issue, they cannot afterwards make the objection. Carson v. Hood's Ex'rs .............................*108 2. Testator died seised of 23 acres of land, which were sold under an execution, on a judgment obtained for a debt of testator, against the executors, but the premises had been previously conveyed to another, for a full consideration. Quaere? 1st. Whether the land could be sold by virtue of the judgment, without a scire facias against the terre tenant? 2d. Whether the land was liable for the testator’s debts, after having been aliened by the heir at law, bona fide and for a valuable consideration? Morris's Lessee v. Smith...............*119 3. When and how an executor shall be charged with property, conveyed to him on a secret trust, quaere ? McClay v. Hanna......*160 EXTINGUISHMENT. 1. If the indorsee of a note, after obtaining judgment against the maker, should discharge him from custody under a ca. sa., issued by virtue of the judgment, the debt will be extinguished and the indorser released. McFadden v. Parker................*2*16 FACTOR. See Agent. FEME COVERT. 1. A feme covert gave bond to pay a debt of her husband; she was seised of a separate estate, under a deed of settlement, with power to make a will, she did make a will, and in it directed the payment of her debts. Quaere ? Whether her estate, in the hands of her executors, was liable to pay the amount of the bond. Smith v. Brodhead's Ex'rs......*115 I 440 INDEX. 479 FORCIBLE ENTRY AND DETAINER. 1. The inquisition in a case of forcible entry and detainer, stated that A. “ was possessed in his demesne as of fee, &c., and continued so seised and possessed,” until “he was thereof disseised:” Held, that it was not error. Commonwealth v. Fitch.......*212 See Practice, 15. FOREIGN LAWS. See Lex loci. FORFEITURE. 1. Under the 19th section of the act of congress of the 18th February 1793, goods, exceeding $800 in value, transported without a permit, from Maryland, across Delaware, to Pennsylvania, are liable to forfeiture. Priestman v. United States......................*28 2. If the condition of a grant by the commonwealth has not been fulfilled, advantage can only be taken of a breach of a condition, by the commonwealth, in a method prescribed bylaw. Commonwealth v. Coxe........*171 8. Where a forfeiture of land granted by the commonwealth has been incurred, no advantage can be taken of it, except by the state, in the form directed by law. Morris's Lessee "V. Neighman......................*209 FRAUD. 1. If a man, who forbids a sale, or slanders a title, becomes himself the purchaser of the land, it is always primci fade, a mark of unfairness; and inadequacy of price, though not conclusive to avoid a sale, affords an argument of great weight, against a purchaser to whom fraud is imputed. Lessee of Weitzell v. Fry...................*218 See Assignment, 1: Contract, 8: .Lands, 6: Possession. FREIGHT. See Insurance, 11,12. GARNISHEE. See Set-off, 1. GEORGIA. See Constitution, 1. HABEAS CORPUS. 1. Upon a habeas corpus, it can only be inquired, whether there is sufficient probable cause to believe, that the person charged has committed the offence stated in the warrant of commitment. United States v. Johns, *412 ILLEGAL CONTRACT. See Consideration, 2. IMPROVEMENTS. See Land, 11. INFANCY. 1. In assumpsit, infancy may be given in evidence, under the general issue, but the jury may decide, whether it is a sufficient dis. charge. Stansbury v. Marks.........*130 INJUNCTION. 1. An injunction will neither be granted by the court, nor a single judge, without reasonable notice to the adverse party, or his attorney. State of New York v. State of Connecticut .................................*1 2. What is reasonable notice ?.......Id. 8. An injunction will not be granted to stay proceedings in common-law suits, at the instance of a state, not a party thereto, nor interested in their decision......Id.*^ INSURANCE. 1. The expenses incurred for seamen’s wages, provisions and extra-pilotage, during an embargo on a vessel, are recoverable as a partial loss, from the underwriter on freight. Jones v. Insurance Co. of North America. ...*246 2. The plaintiff, a resident in Philadelphia, received notice, in August 1793, of the seizure by the French government, of goods which he had insured; soon afterwards, he left home in consequence of the appearance of the pestilence in Philadelphia, and did not return until about the 19th November next ensuing, and then went to South Carolina on business; it was not, however, until the 21st January 1794, that he intimated to the underwriters an intention to abandon, when he stated in a letter to them, “ that he meant to abandon Held, that by such declaration, the plaintiff had made his election to abandon, and that there is no particular form of abandonment, though it must be made within a reasonable time after intelligence of the loss has been received: what is a reasonable time is a question of fact. Bell v. Becendge... .*272 3. If a vessel which has been captured, carried out of her course, and afterwards released, remain, for the purpose of trading, a longer time than is necessary to prepare for her 441 480 INDEX. voyage, at the port to which she has been taken by her captor, it will be a deviation. Kingston v. Girard................... .*247 4. In an action on a policy of insurance, in which the declaration was for a total loss, and it appeared, that the assured had demanded payment of a total loss, which was refused; but there was no actual abandonment, nor offer to abandon, and the proof was of a loss in its nature total ; it was held, that the jury might find damages as for a partial loss. Watson v. Ins. Co. of North America...................................*283 5. Barratry is an act committed by the master of a vessel, -of a criminal nature, without the license or consent of the owner : there must be fraud in the transaction ; and should the act be done solely to benefit the owner, it does constitute barratry. Crousillat s. Ball......................................*294 6. If the master be the general agent and consignee of the owner, the acts of the master as such, cannot, any more than those of the principal himself, be denominated barratry...Id. *1. An insurer who has paid the amount of a loss, can in the case of a double insurance recover a rateable contribution from the other insurer. Thurston s. Koch.................*348 8. Insurance was effected by the plaintiff, who was the owner of a vessel, on her freight and cargo by separate policies, “ at and from New York to Cape François, with liberty to proceed to another port, should Cape François be blockaded ;” the vessel sailed from New York, with instructions where to proceed, if she could not enter Cape François ; she was prevented from entering that port, or any other designated in the instructions given to the master, and was obliged by the blockading force to go to another place, where the master disposed of the goods, and invested the proceeds in a return-cargo, with which the ship returned to New York : Held, that the insured might abandon and recover as for a total loss. Symonds v. Union Insurance Co........................................*417 9. A person having a lien on a cargo, has an insurable interest, which he may cover by an insurance on the goods ; and if the insured in such case has lost the possession of them, he may abandon as for a total loss. Russel v. Union Ins. Co................ .*421 10. Where the insurance of a special interest is attended with a greater risk, than that of the principal ownership ; the omission to disclose the fact of such special interest would vacate the policy............................... Id. 11. In an action on a policy on a vessel, her prime cost is not conclusive evidence of her value, against the assured; but evidence is admissible to show her real value, and the assured are entitled to recover to this amount. Snellv. Delaware Insurance Company. .*430 12. An American vessel insured at and from Philadelphia to Havana, was captured by British cruisers, carried into port by them, and there libelled as prize; a decree of restitution was subsequently obtained, after which, though before actual restitution and without knowledge of the decree, she was abandoned; the insurance was effected, and the abandonment made by the agent for the owners, one of whom was with her at the time of the decree of restitution: Held, that the assured might recover as for a total loss. Dutilh v. Gailiff....................*446 13. Freight was insured on a voyage from P. to S.; the government of the country having refused permission to land the cargo at 8., it was brought home: Held, that the freight was earned, and that the assured were not entitled to recover any thing under the policy. Morgan v. Ins. Co. of North America. .*455 14. Freight advanced is an insurable Interest, and is subject to general average: salvage constitutes general average. Sansom v. Ball.................................*459 15. If an agent, having an insurable interest in goods, insure them on behalf of his principal, in case of a loss, the former cannot recover on his own account, though he may on that of his principal. Donath v. Insurance Co. of North America.....................*463 16. When a voyage is entire, and the risk has once commenced, there can be no return of the premium; but when, by a course of trade, or an agreement of the parties, a voyage is divided into distinct parts; and on one of these parts no risk has been run, there will be an apportionment of the premium, and part shall be returned................Id. INTEREST. 1. A judgment nisi, was made absolute by an agreement, which stipulated that proceedings should be stayed until the trial of certain foreign attachments, which had been laid before the commencement of the suit, upon the funds in question: Held, that interest should be allowed in the judgment, but only from the time of the settlement of the principle involved in those attachments, by the trial of one of them. Fitzgeralds. Caldwell.. .*151 2. Personal residence must accompany every the commencement of the suit upon the funds in question: Held, that interest should be allowed on the judgment, but only from the time of the settlement of the principle in» volved in those attachments, by the trial of one of them. Fitzgeralds. Caldwell.. .“251 3. Interest is due on the ascertained balance of ®442 / INDEX. 481 an account, from the time of a demand of payment. In case of a war, the payment of interest on a debt due by a citizen of a belligerent country, to one of a neutral state, will be enforced, unless a remittance cannot be made with safety. Crawford v. Willing.................................*286 INTESTATE. 1. In every case of intestacy, the heir at common law will take the real estate, where its descent is not specifically altered by an act of assembly. Johnson v. Haines's Lessee........................................... *64 2. Intestate died on the 13th February 1797, without issue, and leaving no widow, father, mother, brother or sister, but leaving nephews and nieces: Held, that the heir at common law was entitled to intestate’s real estate, and that the act of assembly of the 19th April 1794, did not provide for this specific case............................................Id, INTRUDERS. See Land, 1. JOINT OBLIGATION. See Bond, 3. JUDGE. 1. If the presiding judge of a court of common pleas wilfully prevent his associate from delivering his sentiments to the grand jury, after the president has concluded his charge; it is not an indictable offence, and therefore, not a case in which an information will be granted; but every judge has a right, and it is emphatically his duty, to deliver his sentiments upon every subject that occurs in court. Commonwealth v. Addison...........*225 See Recorder. JUDGMENT. See Interest, 1. JUDICIARY. See Jurisdiction. JURISDICTION. 1. Where the jurisdiction of the federal courts depends on alienage, or the citizenship of the parties, it must be set forth on the record. Turner v. Enrille............. .*7 2. Where an action is brought upon a promissory note, in a federal court, by an indorser against the maker, not only the parties to the suit, but also the payee, must be stated on the record, to be such as to give the court jurisdiction. Turner v. Bank of North America..................................*8 3. In proceedings in a federal court, in equity, to foreclose, it is as necessary to describe the parties, as in any other suit. Mossman v. Higginson.........................,.......*12 4. The decree of the court below was reversed, although it was on a supplemental suit in equity, from want of a proper description of the parties to give a federal court jurisdiction. Course v. Stead................... *22 5. A colorable and collusive conveyance to the lessee of the plaintiff in ejectment, for the purpose of bringing the suit in a federal court, will not give it jurisdiction, and the court will, on motion, dismiss the suit. Maxwell's Lessee v. Levy....................*330 6. The jurisdiction of a federal court, is not, primd facie, general, but special........Id. 1. The circuit court cannot take original cognisance of a suit for a penalty, incurred by an offence against the laws of the United States. If the offence was committed within a state, it must be tried in such state. Evans v. Bollen...................................*342 8. The jurisdiction of the state courts extends to the case of a forgery of powers of attorney to receive warrants for lands granted by acts of congress for military services. Commonwealth v. Schaffer..............App. *xxvi JUROR. See Challenge : Practice, 23. LAND. 1. A mere improvement right, subsequent to a legal right vested in another, ought never to be rendered effectual in favor of a settler. Calhoun's Lessee v. Bunning.........*120 2. Blunston’s licenses have always been deemed valid, and many titles in Pennsylvania depend upon them..........................Id. 3. Ejectment. Location and warrant. Gander's Lessee v. Burns................*122 4. Personal residence must accompany every settlement, on which a survey can be regularly made, unless such danger exists, as would prevent a man of reasonable firmness, from remaining on the land, and even then, the animus residendi must appear. Deadening an acre or two of timber, planting a few peach-stones, apple-seeds and potatoes, car never be circumstances amounting to a settlement ; though a cabin should also be put up —if the party resides at a distance, and no 443 482 INDEX. tenant actually occupies the land. Ewalt's Lessee v. Highlands................*161 6. The settlement and residence made necessary by section 9th of the act of 1792, within the times respectively mentioned therein, are not excused by the proviso in the same section; but if a warrant-holder has been prevented from making such settlement, or has been driven therefrom, by force of arms, and has persisted in his endeavors to make such settlement, no advantage can be taken of him, from want of a successive continuation of his settlement. Commonwealth v. Coxe............................*171 6. The settlement required by section 9th of the act of 1792, need not be made within the time prescribed therein, if the warrant-holder was, by force of arms, prevented from making such settlement, provided he persisted in his endeavors to effect it, after the removal of the force; and in that case, he has not incurred a forfeiture of his land. Morris's Lessee v. Neighman..................*209 7. A warrant which loses its descriptive location, by a prior warrant, may be laid on any vacant land; but due diligence must be used in making the survey, and a return of it. If a deputy-surveyor die, before a survey has been executed, for the execution of which he has given an order to his assistant, but it was alleged, that neither the assistant, nor the warrant-holder, knew of the death, before the survey was made, it was held, that in an old transaction, where the title depends upon it, the examination of the allegation should not be very strict. Bell's Lessee v. Levers................................*210 8. Neither the negligence, nor the fraud of a public officer, shall work an injury to a warrant-holder................... .Id. 9. A lost warrant becomes an appropriation, if it is removed to other land which is vacant, and an actual survey is returned into the land-office, and there accepted; provided, no warrant, particularly describing the land, has been delivered to the deputy-surveyor, before the survey has been made. Hepburn's Lessee v.Levy............................ *218 10. To constitute a legal settlement, there must be a personal residence, unless such danger exists, as would affect a man of reasonable firmness. McLaughlin!s Lessee v. Dawson *221 11. Warrants granted under the act of April 3d 1792, are not ipso facto void, where the conditions of settlement and residence, within the time specified therein, have not been performed. The case of every such warrant must depend on, and be governed by, its own peculiar circumstances. Attorney-General x. The Grantees.... ............... .*237 12. Patents, and prevention-certificates, recited in the patents, are not conclusive evidence against the commonwealth, or any person claiming under the act, that the patentees have performed the conditions enjoined on them, although they have pursued the form prescribed by the land-officers.......Id. 13. The act of the 9th of March 1796, declared those Pennsylvania claimants, who had complied with the terms of the confirming law (while the said law was in existence), entitled to the benefit of the same, and enacted that the sums found due to them, should be credited to them in taking out new warrants, in any part of the state where vacant land may be found: Held, that the act did not apply to warrants to be located on lots within the city of Philadelphia. Commonwealth v. McKissick........................ .*292 14. To constitute a settlement under the act of April 3d, 1792, so as to vest in any one an inceptive title to the lands lying north and west of the Ohio, &c., there must have been an occupancy by him, accompanied by a bond fide intention to reside upon the land, either in person or by a tenant. The making of improvements merely is not such a settlement. Balfour's Lessee v. Meade............*339 15. The proviso of the 9th section of that act applies solely to those who had incipient titles, which could only have been created by such occupancy, or by warrant. A warrant of acceptance for these lands, not founded on such settlement, though containing a false recital of it, gives no title.........Id. 16. A grantee by warrant of lands lying north and west of the Ohio, &c., who was prevented from making such settlement as the law requires, for the space of two years from the date of his warrant, but who, during that period, persisted in his endeavors to make the settlement, although he afterwards made no such attempt, is entitled to hold his land in fee-simple. It is not every slight or temporary danger which will excuse him, but such as a prudent man ought to regard. Huidekoper's Lessee v. Douglass......*364 17. A grantee of lands by warrant, without a patent, will not be presumed, from the lapse of a length of time, to have paid the consideration-money; but he has an equitable estate, and though he is not entitled to a verdict in his favor, in an action of ejectment, brought by one having the legal title, yet he may compel a conveyance of the legal title, by paying or tendering what is due; and in such case, resort must be had to this court, when sitting in equity. Penn's Lessee v. Klyne................... ............*373 See Makos. 444 INDEX. 483 LANDLORD AND TENANT. See Rent. LEGACY. 1. Testatrix had, for s®me time before her death, been in a low state of health; the defendant had taken charge of her affairs, and had some accounts against her, but had borrowed 150?. from her, for which he had given a bond; the will contained a bequest of 200?. to him, “provided he brings no account against me and my estateQuare ? Whether the legacy is a release of the bond? Massey v. Learning..................*112 LETTER OF CREDIT. 1. In order to render a letter of credit obligatory, it is not necessary, that it should be answered. Eddowes v. Niell..........*133 2. A lapse of 19 years, without notice of a default in payment, by the principal, is not, considering the circumstances of this case, such gross negligence, as to discharge the surety, and from the nature of this contract, such a lapse of time will not warrant a presumption of payment...........................Id. LEX LOCI. 1. A contract is governed by the law of the place where it is made. Conf ramp v. Bu-nel.................................*419 2. Where the lex loci contractus protects a party from execution on a judgment upon a contract, he will not be liable to arrest on mesne process out of this court, for the same cause................................id, See Payment, 2. LIEN. 1. A sheriff’s sale of land, by virtue of a judgment and execution, subsequent to a mortgage to the trustees of the loan-office, does not ’destroy its lien, Febeiger's Lessee v. Craighead................................*151 2. A. had taken out a ca. sa. against the defendant, and during his imprisonment under it, his land was sold under an execution of the plaintiff; and afterwards, the defendant was discharged from custody, as an insolvent debtor: Held, that the lien of A.’s judgment was discharged, and that he had no claim to the proceeds of the sale. Freeman v. Bus-ton.................................*203 8. The purchaser of lands of an intestate, sold by an order of an orphans’ court, holds them, discharged -Tom the lien of a judgment ob tained against the intestate in his lifetime. Moliere's Lessee v. Noe....... .. *450 LIQUIDATION. See Duties. MANOR. 1. A claimant under the proprietaries, of a proprietary tenth or manor, must make his title under the divesting law of 1'7'79, and show that the land was called and known by the name of such tenth or manor, and that it was duly surveyed, and returned into the landoffice before July 4th, 1'7'76. Penn's Lessee v. Klyne...........................*402 MANDAMUS. 1. Quaere? Whether a mandamus can be issued against the secretary of the land-office, commanding him to prepare and deliver patents in favor of a warrantee of a tract of land. Commonwealth v. Coxe........*1'71 MANSLAUGHTER. 1. What is manslaughter ? Commonwealth v. Biron............................. *125 MASTER OF A VESSEL. 1. The master of a vessel may bind his owners personally, by borrowing money to make necessary repairs to a vessel in a foreign port, if the lenders, after due inquiry, did not know that the master had sufficient funds to relieve the necessity. Wainwright v. Crawford .............................V.*225 MESNE PROFITS. See Ejectment. MONTH. See Time, 1. MORTGAGE. 1. If the purchaser of property knows, at the time of his purchase, of the existence of a mortgage, which has not been recorded according to the act of assembly, the premises will be bound by the mortgage. Stroud v. Lockart...........................*153 2. A mortgage, voluntarily given in contemplation of bankruptcy, and intended as a preference to a particular creditor, is void. Rundle v. Murgatroyd's Assignees..*304 445 484 INDEX. MURDER. 1. Although murder in the first degree is by the act of assembly confined to the wilful, deliberate and premeditated hilling of another, yet the intention remains as much as ever the criterion of the crime. Respublica v. Mulatto Bob.........................*143 2. To constitute the crime of murder on the high seas ; the mortal stroke must be given, and the death happen on the high seas. The defendant had given a mortal stroke to one in the haven of Cape Frangois, but the deceased did not die, until his removal on shore : Held, that the offence was not cognisable under the 8th section of the act of congress of the 30th April 1790. United States v. McGill..............................*426 NEW TRIAL. See Practice, 10, 23. NOTICE. See Bill of Exchange and Promissory Note, 3, 4,6 : Evidence, 4 : Injunction : Letter of Credit : Mortgage, 1. OFFICER. See Land, 6. ORPHANS’ COURT. See Lien, 3. PARTITION. 1. It did not appear by the return of a writ of partition, that the parties attended, or were warned to attend at its execution, and the inquisition did not state, that the property was assigned and delivered, but merely that it was allotted : Held, that the partition was valid. Ewing v. Houston...................*67 PARTNERS. 1. A partner is liable for the acts of his copartner, in relation to partnership business, whether they be known to the former or not. Crawford v. Willing,....... ...... .*286 2. One partner cannot maintain assumpsit against the other, to recover the balance of the proceeds of a partnership adventure, unless the partners have settled their account, and struck the balance. Ozeas v. Johnson...............................*434 PAYMENT. 1. Where a forged check of a customer is received by a bank, as cash, and passed to the 446 credit of a depositor (who is ignorant of the forgery, and who has paid the full value of the check), it is equivalent to an actual payment, and if the depositor, after having been informed of the forgery, on a sudden misconception of his rights, agrees that if the check is a forgery, it is no deposit, it will not constitute a promise to refund. Levy v. Bank of the United States...............*234 2. Where by a contract between American citizens, a payment is to be made in a foreign country, the intention of the parties must govern the form of payment. Searight v. Calbraith.................................*325 See Agent, 1 : Appropriation. PENALTY. See Damage, 1. PERJURY. See Repeal. PILOT. 1. Where a collision is occasioned by the gross negligence of a public pilot, while navigating a vessel, the owner is liable for the injury done : Held, that in all cases proper for a legal indemnification in damages, the compensation should be equivalent to the injury. Bussy v. Donaldson.................... .*206 PLEADING. See Covenant: Practice, 14. POSSESSION. 1. The act of suffering goods to remain in the hands of the defendant, after they have been levied on, furnishes no presumption of fraud; but if the intention of leaving them is fraudulent, a subsequent execution will be preferred. Levy v. Wallis....................... *167 i Where, after a fair purchase at public sale, under a distress for rent, goods are left in the possession of the former owner, they cannot be taken under an execution against him; such continued possession is not a fraud on creditors. Water's Ex'rs v. Me Clellan... *208 3. A number of young cattle were among the goods: Held, that the jury might consider, whether the expense of maintaining these cattle exceeded a fair compensation for the use of them, and if such were their opinion, they might make a reasonable reduction for them.................................. Id. 4. Where bricks, after having been levied on, are suffered to remain in the possession of INDEX. 485 the defendants, a purchaser from one of them, without notice of the levy, is entitled to hold the goods, discharged from the lien of the execution. Chancellor v. Phillips......*213 5. Goods, though chiefly household furniture, suffered to remain in the possession of the defendant, for more than a year after a levy, are liable to a subsequent execution. United States Conyngham.........................*358 PRACTICE. 1. In a suit in equity, a subpcena must be served sixty days before its return. State of New York v. State of Connecticut............, .*6 2. Non-pros, for not appearing on a writ of error. Hazlehurst v. United States.......*6 3. The value of the matter in dispute could neither be determined by the demand of the plaintiff, nor fixed by the finding of the jury; and the court allowed the value to be ascertained by affidavits, on ten days’ notice, in the state where the action was originated; the writ of error not to be a supersedeas. Williamson v. Kincaid................*20 4. A writ of error, not returned at the term to which it is returnable, is a nullity. Plair v. Miller....................................*21 5. A writ of error will only lie in the case of a final judgment. Rutherford v. Fisher. ,.*22 6. Whatever may be the original nature of the suit in a circuit court, it cannot be removed into the supreme court, except by writ of error. Blaine v. The Charles Carter.. .*22 7. A rule was granted, to ascertain by affidavits, the value of the land in dispute, in order to sustain the jurisdiction of the supreme court on a writ of error. Course v. Stead... .*22 8. This court can enter judgment for the plaintiff in error, without remitting the record to the court below for that purpose. Ludlow v. Bingham...................................*47 9. After a verdict, it will be presumed, that everything was done at the trial, which was necessary to support the action, unless the contrary appear upon the record. Carson v. Hood...................................*108 10. When a new trial will be granted. Bradley's Lessee v. Bradley..................*112 11. The court will not direct a nonsuit for want of proof by the plaintiffs, of a material fact, where they have offered some evidence of it. Vaughan v. Blanchard...................*124 12. A decision of the board of property was pronounced upon a caveat, in favor of the defendant, on the 14th of February 1796: a declaration, entitled as of April term 1796, was served by a private individual, on the defendant, on the 10th August 1796; and it < was ertered on the docket of the supreme j court, on the 20th of that month; but contrary to expectation, the court had risen on the preceding day, which, of course, then ended the term: Held, that the ejectment was well brought within the six months allowed by the act of 1792. Nicholson's Lessee v, Wallis........................... *154 13. An appeal from an orphans’ court dismissed, because it did not appear that a definitive decree had been pronounced. Me Clay v. Hanna......................... *160 14. Issues were joined on the pleas of non assumpsit and payment: plaintiffs had been obliged to send a commission to another state, to prove the assumption; and when the jury was about to be empannelled, defendant moved to strike out the former plea: Held, that he should not be allowed to strike it out. Jackson v. Winchester...............*205 15. (Quaere? Whether certiorari to remove the proceedings in a case of forcible entry and detainer, operates as a supersedeas. Anonymous........................... .*214 16. After a case has been referred, and several meetings have been held by the referees, at which the parties have exhibited their respective proofs, and have been heard, the plaintiff cannot discontinue the suit, without the leave of the court, which, in such a case, would not be granted, unless there are very cogent reasons. Pollock v. Hall.....*222 17. A bill of exceptions to the charge of the court, may be tendered at any time before the jury have delivered their, verdict, even when they are ready to deliver it, and are at the bar. Jones v. Insurance Co. of North America.............................*246 18. The return to a certiorari, to remove the proceedings before the mayor of Philadelphia, under an ordinance against huckstering, did not state a conviction, the offence, nor the place where the business was conducted: Held, that it was error. Mayor, &c. n. Mason............................*266 19. A certiorari to remove an indictment from a court of quarter sessions to a circuit court, will be granted, on an application by the defendant, supported by his affidavit, in the usual form, unless something is shown in relation to his character or conduct, to induce the supposition, that public justice is likely to be impaired by the removal. Commonwealth v. Isgon.................. .*302 20. A certiorari, issued to remove an indictment from a court of quarter sessions of, &c., to the circuit court, was directed to the judges of the court of common pleas of, &c., and returned by the associate judges of that court: Held, that the direction and return of the writ were fatally irregular. Commonwealth v. Franklin..................*316 447 486 INDEX. 21. As between creditors, judgments do not relate to the preceding term, but they take priority, according to the times of thoir entry. Welsh v. Murray...................*320 22. A defendant cannot be compelled to proceed to trial, until payment of the costs of a former action, between the same parties, for the same cause, which had been non-prossed. Hurst's Lessee v. Jones............ . .*353 23. A verdict will not be set aside, on account of the alienage of a juror. Senible, that it is a cause of challenge, before he is sworn. Hollingsworth v. Duane...............*353 24. Under the 20th section of the act of assembly of the 24th February 1806, an action may be removed from the court of common pleas to the supreme court, on or before the first day of the term, next after that to which the original writ is returnable. Lyle v. Baker............................*433 25. Upon a bill of exceptions to another point, and after a general verdict, the court is not bound to consider a judgment by default in replevin, as an affirmance of property. W. B. v. Latimer.......................App. *i PRIORITY. See Practice, 2. PRIVILEGE. 1. A member of the general assembly is privileged from arrest, summons, citation or other civil process, during attendance on his public business, but the benefit of his privilege must be duly claimed at a proper time. Geyer's Lessee v. Irwin..............*107 2. It seems, that his suits cannot be forced to a trial and decision, while the session of the legislature continues.................Id. 3. A charge d'affaires is entitled to privilege from arrest, until his return home, although he has been for some months superseded by a minister plenipotentiary; the detention of the former being occasioned by his official business. The court will discharge him from arrest, without requiring proof from the department of state of his reception in his diplomatic character by the president. Dupord v. Bichon............................*321 4. A witness is privileged from arrest, for a reasonable time, to prepare for his departure, and return to his home, as well as during his actual attendance upon the court. Smythe v. Banks................................*329 5. A member of congress is not exempt from the service nor obligations of a subpoena in a criminal case. United States v. Cooper, *341 6. A citizen of another state, who, when in attendance on court as a suitor, has been sub- 448 pcenaed as a witness in another cause, is privileged from an arrest in execution, issuing from a state court, while at his lodgings; and the sheriff will bo indemnified by an order of discharge of a court of competent jurisdiction. Hurst's Case........*387 PROMISSORY NOTE. See Bill of Exchange and Promissory Note. RECORDER. 1. The Recorder of the city of Philadelphia, is not a judge, within the meaning of the 8th section of the 2d article of the constitution of the state of Pennsylvania. Commonwealth v. Dallas...........................*229 REFEREES. 1. Referees have ho power to erect a new and arbitrary tribunal, to determine future controversies between the parties. Livezey v. Gorgas...............................*71 2. Where, on a reference to two persons, with power to choose an umpire, if they should disagree, an umpire is appointed, who receives the statement of the case from the referees, in the absence of the parties, and without hearing them; the award will be set aside. Falconer v. Montgomery.............. *232 3. An umpire chosen under a rule of reference, by the referees, must not rely upon the information reported by them, but he must examine, the case himself, in the presence of the parties. An award will be set aside, if the referees have refused a party sufficient time to procure necessary evidence. All the testimony should be heard, and the documents seen by the parties, in the presence of the referees. Passmore v. Pettit.........*271 See Practice, 16. REGISTRY. 1. An action of trover for a vessel, cannot be maintained, by one whose title depends upon a contract in fraud of the registry laws and public policy of the United States. Duncan-■ son v. McLure.....................*308 2. Replevin cannot be maintained for a vessel, by the registered owner; he having received the full value of it from another, for whom he is mere trustee, in fraud of the laws of the United States. Murgatroyd v. McLure, *342 3. An American registered vessel, while at sea, sold in part to resident citizens of the United States, without a bill of sale, reciting her registry, and without a new registry until her INDEX. 487 arrival in her home port, does not lose her privileges as an American vessel. Willing v. United States................. .*374 4. An action cannot be maintained in our courts, founded on a contract between a citizen and an alien, by which the former undertook to purchase vessels and cargoes in his own name for the latter, and in like manner, to import the return cargoes, in fraud of the registry and revenue laws of the United States. May-bin v. Coulon.................... .*298 REMITTANCE. See Agent, 1: Appropriation. RENT. 1. If a landlord interrupt the tenant’s enjoyment of demised premises, the rent is suspended, unless it be shown that such an interruption was in pursuance of a reserved privilege. Vaughan, v. Blanchard.... .*124 REPEAL. 1. The act of congress of the 19th December 1803, repealing the bankrupt law, is a bar to any prosecution for the perjury of a bankrupt, before the commissioners. United States v. Passmore.........................*372 SALE. 1. Where land mortgaged to the trustees of the general loan-office, has been sold by the sheriff of the county, under an alleged precept from the state treasurer, issued by virtue of the act of 1st April 1790, and the writ has been lost, parol evidence of it is admissible. The requisition of the act, that advertisements of the sale shall be posted at some public places, is merely directory to the sheriff, and where there has been no actual injury, it should not affect the title of a bond fide purchaser. Lessee of Weitzell v. Fry..... .*218 SALVAGE. 1. American re-captors are entitled to salvage, for rescuing an armed neutral vessel from French captors, by whom she was manned. Talbot v. The Amelia.................*34 SET-OFF. 1. A. & B., partners in trade, issued a foreign attachment against the effects of C., who was indebted to them, in the hands of D.: A. & B. were the indorsers of a note which was discounted by D., but before it came due, A. & B. died, and the note was protested, and the 4*Dall.ww29. executors of B., who was the surviving partner, obtained judgment against 0., and also against D., as garnishee. The debt due by A. & B. to D., cannot be set off against the debt due by D., as garnishee, to B.’s executors. Crammond V. Bank of the United States.........................*291 2. In a suit brought by the commonwealth, tha defendant cannot indirectly recover from the state a substantive independent claim. Commonwealth v. Matlack............*303 SETTLEMENT. See Land, 8, 4, 6, 8, 11, 12. SHIP. See Master or a Vessel : Registry. STATE SEAL. See Evidence, 9. STATE TREASURER. See Bond, 1. SUBPCENA. See Practice, 1. SURVEY. 1. A survey under a warrant of resurvey, is good as an original survey, though it recite another, which is invalid. Penn's Lessee v. Klyne............................*403 See Land, 6. TENDER. 1. The demand, by a creditor, of payment, in a certain species of coin, does not dispense with the obligation on the debtor to make a tender, agreeable to his own sense of the law, and the contract. Searight v. Cedbraith, *325 TIME. 1. The computation of time must be by calen-dar months, in the exception (in the 10th section of the act of 1780, for the gradual abolition of slavery) of domestic slaves attending upon persons passing through, or sojourning in the state, &c., provided they be not retained therein longer than six months. Commonwealth v. Chambre............*143 2. Where the time of payment is made a substantial circumstance, it enters into the essence of the contract, and it must be observed. Hollingsworth v. Fry........*345 449 488 INDEX. TREASON. See Curtesy. TRUST. See Appropriation: Assignment. VARIANCE. 1. A summons in partition, described the property to be divided as follows: “ one ferry at the river Susquehanna, in Hellam township, in, &c., six messuages, &c., with the appurtenances, in the same township of Hellam, in, &c.” The writ of partition, in the recital of the summons, had these words, “with the appurtenances, in the same township of Hellam and Windsor, in, &c.and in the specification of the property, the ferry was omitted, though it was named in another part of the writ. The inquisition enumerated among the premises which were divided, “the ferry, and also a fishery, on the river Susquehanna, at or near the said ferry, &c.Held, that these variances were not fatal. Ewing n. Houston.........,.................*67 VOLUNTARY ASSIGNMENT. See Assignment. WAR. 1. Limited hostilities, authorized by two governments against each other, constitute a public war, and render the parties, respectively, enemies to each other. Bas v. Tingy... .*87 2. An American vessel, captured by a French privateer, on the 81st March 1799, and recaptured by a public armed American ship, on the 21st April 1799, was condemned to pay salvage, under the act of congress of the 2d March 1799.....................Id. WARRANT. See Land, 6, 7, 9, 10. WARRANTY. 1. A collateral warranty of an ancestor, who had no estate in possession of the premises, 460 is an estoppel to his heir. Hesselman's Besses x. Old...........................*168 2. The Statute 4 Anne, c. 16, § 21, is not in force in Pennsylvania. WATER-COURSE. 1. Case, for obstructing a water-course, by which the plaintiff’s meadow was watered : plaintiff having proved his right to the course, his counsel executed and filed a writing, by which they bound him to release any damages that the jury might give, if defendant should execute a deed, securing to plaintiff the enjoyment of the water, and the court advised the jury on this condition, to find the full value of the meadow .in damages. Anonymous.......................*147 2. Every one has a right to use the water passing through his land, as he pleases, provided, he does not injure his neighbor’s mill, and that, after using the water, he returns it to its ancient channel. Beissel v. Shod.. .*211 WILL. See Devise: Legacy. WITNESS. 1. Plaintiff, a certificated bankrupt, was admitted to prove a parol acceptance of a bill of exchange, the foundation of thé action, after he had released his interest, at the bar, his assignees having previously entered into security for costs. McEwen v. Gibbs. .*137 2. A slave is not a competent witness. Respub-lica v. Mulatto Bob..................*145 8. An executor, who is entitled to a share in the residuum of his testator’s estate, which is interested in the suit, is not a competent witness to prove notice of the non-payment of a note, although the objection appear on his cross-examination. Bank of North America v. Wycoff.........................*151 4. The president of an incorporated company, by which a vessel has been insured, is a competent witness against the defendant, on an indictment, for fraudulently casting away and destroying the vessel United States v Johns..............................*412