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^f T- 









coMtammo at mfbil temm, 1803. 

' FUbfiAed from the MttiiiaenplB of 

Oae ut th# A i Mc i a tc Jutiees'of the Suprtiae Covrt nf Oie Vailed Stateii 




raivnm bt ubxa b. baiuv. 


BE IT REMEMBERED, That on the eighth da^ of 

(L. S.) May, m the fiftietli year of the Independence ot the United 

^States of America^ A. D. 1826^ Rigrabd PvRSSy Juh. of the 

said District, Iiath deposited in this Office the Title of a Bookj the right 

wherpof he cknnB as Proprietor^ in the worda foUowtng'y to int t 

<< Reports of Cases determined in the Circuit Court pf ^e United StidM^ 
*'for the Third Circuity comprising the Districts of Pennsylvania and New- 
« Jersey. Commencing^ at April Term, 1803. PiMiahod from the Bfanu- 
*< scripts of the Honourable Bushrod Washington, one of the Associate Ju»t 
" tices of the Supreme Court of the United States. Volume I.** 

In conformity to the Act of the Congr^ of tka United Stateay intituled* 
<*An Act for the encouragement of learning, bv securing the copies of 
maps, charts, and books, to the authors and propnetors of such copies* dur- 
ing the tira^ therein mentioned." And also to tha Act* entitled* **Mi Ac| 
supplementary to an Alct, entitle^ <An Act for the encodrag^ment of learn- 
ings by 9ecuring''the copies of maps* charts, and bookS| to the autbon aod 
propnetors of such copies, during the times therdn mentioned** and ex- 
tending the benefits thereof to the arts of designing, engrairing, and etclung* 
historical and other prints." 

D. CALDWELL, Clerk of the 

Eattem DisMci of PmutyhfomM, 

UBP*BY or TH£ 




When, in 1«19^ the e^tor pubifehed "Re- 
ports OF Ca8Es determined in the Circuit 
Court of the Unitj^d States, for the 
Third Circuit " It was his intention to pro^ 
ceed with a work wfaiob wQuld have placed in 
the hands of the Professnon, the decisions of that 
Court" from 1815 to the present period. This 
purpose has been suspended, in consequence of 
an impression, derived from the limited sale of 
the volume, that the publication of the earlier 
cases, eiheuld have preceded those which were 
then printed. 

Thift these' oases would Iwve appeared long 
since, was an expectadoQ entertained and ex- 
pressed at the period referred ta It wask under*- 
dtood,that they hdd been prepared for (he press, 
by a profesMonal gentlemafi, who had devoted 
much time and attention to the trust ; and who 
intended to complete the work within a short 
time* * 

These expectations have been di^ppointed ; 
and in accordance with ^ the wishes of Judge 
Washington, thiese ^ Reports'* are now publish- 
ed ; this volume being the first of a series, which 
will contain all cases decided in the Third Cir- 
cuit, during the time that distinguished . and 
learned gentleman has presided in the ^ourt. 
The cases are taken from the manuscripts of 




the Judg^, and they wUl be found to Gontaiii 
all the matters essential to be known, and a full 
and accurate statement of the opinions of the 
Court, in every case. 

It may be claimed with, confidence, that this 
work will contain a body of law, of the highest 
interest to the community. The jurisdiction of 
the Circuit Court of the United States, extends 
to international and commercial questions, of 
th^ greatest, and of the most g^eral import- 
ance : its particular proviQce to examine ond 
decide upon revenue, and questions arising un- 
der the patent laws; and the final determinatioii 
by the Court, of the many pripcii^es bf wbicfa 
the land titles of a very considerable portioik of 
Pennsylvania are regulated — these drcumstaiir 
ees, together with Uie. various and .changing 
relations of the United States, between i90S 
and 1815; .our neutrality; our belligewnt and 
peacefid portions; gave rise to yery nMuny of 
the B^ost intricate and important legal inyesti* 

Ttie volume now published will be inomle- 
diatdgr followed by others, and the work wfll 
be completed* as early as possible* 

Richard Petbrs, Juk* 

PhibdefyVa, ii%, 1826. 

.:^<? ^ f 





Allbn vs. Ogdeti) - -- - - - - 1-^4 

Allwine» Lessee of Camac vs. - - - - - *^5 

Anonymous, -------- 84 

AnthonyySeth Barton Vs. - - ^ - ^ ^^7 

Arbonkle, Browne's Lessee vs. ■ - -- - - *^* 

^mstrong vs. Browny - • • - - - - ^ *3 


Baker, Jackson vs. - - -. - - - - 394 

Baker« Jackson vs. - I. . - - - 445 

Baker vs. Gallagher, - - - --- - 461 

Balfour^s Lessee vs. Meade, 18 

Barclay, Ship Lavinia vs. -; - * - - - 49 
Barker 8c Ansley, Marks et al. Assignees oF Anthony fc 

Pleasants, Bankrupts, vs. - - - • • 178 
Bannes et al, Assignees of M'CIaws, a Bani^nipt, vs. Bil- 

lington fc Corless, and Israel Israely Sheriff, - 29 

Beale vs. Pettit 8c Bayard, 34 \ 

Bernard, Merrick vs. - - ^ - - - 479 

Biays vs. Union Insurance Company, ... 506 

Bisset^ Ketland vs. 'h - 144 

Blanchard B. Jolly vs. - . - • . . . 352 

Blight's Assignees, Humphreys vs. - . • 44 

Brenell, Vuyton, Administratrix of Vuyton, vs. - 467 

Bi0Wn, Armstrong i|s. - - - - - - 43 

Brown, Hylton's Lessee vs. - - • • ^ - 304 

■s^Qiwn, Lessee of Hylton vs. -^ . - ^ 298 



Browii) Hylton's Lessee vs. 343 

BrowDe'6 Less^^ vs. Browne^ - - -• - - 429 

Browne^ Browne's Lessee vs. - - - - - id. 

Brown vs. John Jackson, - - - - - 512 

Bumis, Huidekdper vs. - - . - - - • - 109 

Burchan 8c Penning^ton^ Lessee of David Harris vs. - 191 

•^umis, Huidekoper vs. - - -- - - 257 

Bumell, Camfranque vs. 340 

Browne's Lessee, Arbunkle vs. . . • ^ 484 

f^Hcv vs. Hopper, - - - - - - 499 

.. " C. '. . 

Cabrera ex fiarte^ - - - - - - - 23^ 

Calbreath vs. Gracy, - - - * - '*• 

Calbreath vs; Gracy, -.- - --. - 210 

Canute's Lessee vs# AUwine, - - - - • •46t 

Camfranque vs.'Bumdl, 340 

Carpentkr,*Coartois vs. .... - 376 

Carson's Executors vs» JFennings, - , - ^- * 129 

Caze, Lamalere vs. ' - - - - - - 413 

Caze^ Lamalere vs. ,- - -. - - -. ^35 
tbilds vs. Shoemaker, Assignee of Denison, a Bankrupt, 494 

Corser vs. Craig, - - r - ; - - 424 

Courtois vs. Carpentier, - - - - ' . - 376 

Cowqua vs. Lauderbrun, 521 

Coxe vs. Pcnington, ------ 65 

Craig, Corser vs. - - - -' - - - 424 

Crammond, Thelasson' vs. 319 

Crammond et al. Executors of Cay, surviving Partner of 
Clow & Cay, Perry et aL Assignees of Nantes, a 

Bankrupt, vs. - * - - - - 100 

Crousellat, De Taslet* et al. vs. .... 504 


Delancey's Lessee vs. M'Keen, " • " " ' ^^* 

Delancey's Lessee vs. M'Keen, .... 525 

Delaware Insurance Company, Hogan vs. f* • - 419 

>; ' . 


Delaware Insurance Company, Mfers Moses vs. '385 

Delaware Insurance Companj, Snell et al. vs. . - . .509 

De Taslet et al. vs. Crousellat, * - - - - SOf 

pignuni) Schooner Phoebe vs. ..... 48 

Douglass, Lessee of Huidekoper vs. . • . 258 

Dorsey, Holt et al. vs. - - - - - - 296 

Dumelly Hurst vs. - - - ' -^ - . ' - • 43? 

DumeU, Hurst's Lessee vs. - - . • • 2$% 

Dusar vs. Murgatroyd) - -' - /- - 13 


Paussatt, Snell et al. vs. - - - .... 371 

Felichy vs. Hamilton, •'.«.. ... . 491 

Piaher tt al. Assignees cf Peter Blightf a BaiyLnipt, The 

United States vs. .:.,.., ..4 

Filasiininons, Hicks vs. • - - - - • ^9 

F|D«nch, Pigou vs. - « • ..378 

• * 


Gallaghery Baker V9. " - "* .- - - 461 

Gallagher* Roberts vs. « • ' .'^ .' . - 156 

Gallag)|ier*s Executors vs. Roberts, 7 ^ - - •. 320 

Gardner, Rtian vs*. .«.'.... 145 

Gordon et al. James's Lessee vs. - - - - 333 
Gordon^s Lessee vs. Holliday, - - . - - ' 389 

Gordon's Lessee vs. Kerr, Clossanfi, & Lowry, - , - 323 

pracy, Calbreath vs. - - - - • - 19$ 

Gracy, Calbreath vs. - - .- • - . 219 

Groff et al. John & Richard Penn's Lessee vs. - 390 

Gumey et al. The United States vs. - - - 446 


Hasrris's Lessee ys; Burchan 8c Pennii^^ton, - * 19 ) 

Hamilton, Felichy vs. .... . .. 491 

Harrison, Brig Tryphenia vs. - - - • . 522 

Hicka vs. Fitzsimmons, - - - - • - 279 

Higbie vs. Hopkins, 230 

Hogan vs. Delaware fnsiirance Company, - -' 410 



' Holidftf, Gordon's LoMee vs. ' • « . - • 3SS 

Hok & Co. Ts. Dorsefy - - ..'•.-• » , 39$ 

Hopkins, Higbie vs, - « • . *. . 330 

• Hopper, Butler vs. ....... 499 

Hughes, Swan's Lessee irs. • • • - . 316 

Huidekoper vs. Burrus, - - . . •. . 357 

Huidekoper Ts. M'Cleao, * . .4 • • . 136 

Huidekoper vs. Stiles, - • . . ."'. 13S 

Huidekoper's Lessee vs. Bur^s, » - , .' • ' 10^ 

Huidekoper's Lessee vs. Douglass, ... - 358 

Humphreys vs. Blight's Assignees,. - ^ . 44 

Hurst 8c Carr*« Loisee vs. IVickerly, - "- - ST* 

Hnnt^ ^x jHtriCy . . * . « '. • . i84 

Hurst, Hurst vs. --«--•«. 56 

Hurst, MorHis vs. - ^ . ... . 4S4 

Hurst vs. DumeUt • • ... ... ,^ 434 

Hurst vs. Hurst, '. $6 

Hurst vs. Rodney, - • . ,. . , . 375 

Hurst's Lessee vs. DumeU, .....'. 353 

Hurst's Lessee vs. Ker, - ' 189 

Hurst's Lessee vs. M'Neil, * 70 

Hurtin vs. Phoenix Insurance Company, - - / ' -' 400 

Hurtin vs. Union Insurance' Company, - ' . - 530 

Hylton's Lessee ys. Brown, 304 

Hylton's Lessee vs. Brown, 398 

Hylton's Lessee vs. Brown, ..... 345 

L ec J.' 

Insurance Company oli^North America, Kohne vs. 
Insurance Company of North America, Kohne vs. 
insurance Company of -North America, Kohne vs. 
Insurance Compapy of Pennsylvania, M'Gregor vs. 
Jaekson vs. Baker, .-..*. 
Jaekson vs. Baker, • - - • ' - 

JaeksoD) John, Brown vs. - - *- ' " - 





Jackson* Sims vs. - - - - , . - • • • 

James's Lessee vs. Ctordon & Bowen. ... 

James's Lessee ts. Stookey axul others, * - . - 

Jennings, Carson's Executors vs. - - - . - 
John & Alice, Ship; Whitesides and Samuel Hurry, Ni- 

cholas Hurry ys. - - - , - 

Johns, United States vs. - - . • - , • 

J6hnson, ex parte ^ . • . • 


Johnson vs. Phoenix Insurflice Con^pany, 

JoiUy vs. Blanchardy - - • • 

Joy & Lawrence vs. Witts et al. * r • 

Joy tX aL vs. Wurtz et al. ^^ - - ^ 


Kanowrs 8c Graunt^ Reiitgen vs. • • ' • /«. 
Kerr, Clossam & Lowry» Gordon's Lesseci vs. ? 
IDerr, Hurst's Lessee vs. - - *. • 

Ketland vs. Bis^t, -> - .,.>'• , 
Sletland,^ Stone etaLva,- 
SLincaid' et al/ Kingston vs. .... 
Kincaid et al.. Kingston, Stephen vs. .. • 
Kingston vs. Kincaid et al. • ' •• < . • 
Kingston, Stephen, vs. Kincaid et al. 
Klyne, Penn's Lessee vsw - - -^ -.. 

Kohne vs. Insurance Company of North America,* 
Kohne vs. Insurance Company of North Ateerica^ 
l^ohne vs. Insurance Company 6f North America, 

Lamalere vs. Caxct 
Lamalere vs. Caaie, • ^ • 

Lauderbrun, Cowqua vs. * 
Lawrence, Wallace's Lessee vs. 
Lesley, Philips vs. 
:Lavinia, Ship^ vs. Barclay 

^ • 




• . 






^ . 




Magill, the United States y«. ..... 463 

M'Clean, Ituldekoper vs. 136 

M'Gregor vs^ Insurance .Company of Pennsylyaniat - 39 

M'Keen, Delancey's Lessee vs. • - - - • 354 

M'Keen^ DelaQcey's Lessee vs. . - - - , - 535 

M'Neily Hurst's Lessee Vs. .... - S^o 

Maley, Shattuck vs. ;- - , - - ^ , - * 24*5 
llarks et al. Assignees of Anthony & Pleasants, BankjrvptSi 

vs. Barker & Ansley, - - -' : - - 178 

Martin vs. Taylor, --^ -.- -.- -, .i 

Meade, Balfour's Lessee vs. - - - - - 18 

Merricjk v*. Bernard, ..---.- 479 

Miller, Maze vs. - - - - . "- . 328 

Morris vs. Hunt, - ' - 433 

Murgatroyd, DuHar vs. -- - . - -.13 

Myers Moses vs. Delaware Insurance Company, - 385 




K«^las Hurry vs» Ship John. & AUc^ Wttitesides^ and 
Samuel Hurry, - - - - - - 293 

'. ' 

Ogden, Allen vs. . t • r. ^ . . , 176 


Penington, Coxe vs., 65 

Penn's Lessee vs. Klyne, ..... jo7 

Perry et al. Assignees of Nants, a bankrupt^ vs. Crammbnd 
et al. Executors o^ Cay, surviving partner of Clow 
& Cay, - - - . • . - . . 100 
Pettit & Bayard, Beale vs. - - - - - 241 
Philips vs. Ledley, - - - « . • - 286 
Philips*s Lessee vs. Wilson, - • -. * •• ' -^ 470 
Phc^be, Schooner, vs. DigAum, - . • • - .* 48* 



Phoenix Insurance Company, Vale vb. - ^ ^ ^ 383 

Phoenix Insuraoce Company, Johnson ys. ^ - - . 378 

Phoenix Insurance Company, Hurtin vs. - - - 400 

Pigou vs, French, - . - ' - - - - - 278 

Rentgen vs« Kanowrd & Grmunt', • - - »- - 168 

Ritctuefs Lessee Ys.' Woods, - -.'•'-*- - n 

Roberts YS. Gallagher, - ~." .. - 156 

Roberts, Executors of Gallagher Vs. - - ^ . 320 

Rodney, Hurst yb. . -^ - . - - - • . 375 

Ruan YS. Gavdner, - .- - .- - - - 145 

Russel YS. Union Insurance Company, - * - , 409 

Russel YS. Union Insurance Company, - ' ' \^ ^^ 


S. » ' , 

Seth YS. Anthony, - - - -. - '. - 317 

Shattuck YS. Mal^y, - *• - - - - 245 

Shoemaker, Assignee of R. Denison, Childs ys. ' - ' 494 

Sim'onds ys. Union Insurance Company, - ' -. - '*< i$SL 

Simonds ys. Unioii Insurance Compimy, ,\ ■ .■ - - ^3^^ 

Sims YS. iaokson, --, -' * - -*- 414 

Smith, Walker et al. YS ' : 152 

Smith, Walker YS. - - - - - - 202 

Snell et al. YS. Faussatt, - - . - - - * - ^71 

Snell and others ys, Delaware Insurance Company, , - 509 

Sparks vs. West, - - - .,'-*- - , 239 

Stiles, Huidekdper YS. - ^ - - - - 135 

Stone et al. ys. Ketland, - - ... . 142 

Sfookey^ and others. Lessee of James v?. - . - 33Q 

Swah's Lessee YS. ttughes, - - r - ^ 216 


Taylor, Martin ys. . . ^ . . . 1 

Thelasson YS. Cramniond, - • -. 319 

TryphsDiA YS. Harrison, - - . . . /- 522 



: ■ • . V. 


Union Ihsviwce Company, Biays vs. - * - • ' 506 

Union Insurance Company, Hurdn'Vs. '^ - - 530 

Upion Insurance Company^ Russd vs. ' - - •- 409 

Union Insurance Conipany, Runei vs. . - * i ~ ^^ 

, Union Insurance Company, Simonds vs. - ' - 382 

Union Insurance .Company, Simonds vs.. - - ' 443 
United States vs. Fisher et al. Assignees of Peter Blight^ 

a Bankrupt, - - - - - - 4 

United States vs. Gumey et al. ' - - - ' - 446 

JJaited States vs. Johns - ' -' - - ^ - 363 

United States vs. Magiu, - - • - - . 463 

United States vs. Wickham, - - - - - 316 

United States, Willing It. Francis, vs. - - - 135 

Vale vs. Phoenix Insurance Company, ... 283 

ton, Administratrix of Vuyton vs. Brenell, • •467 


Wade vs. Wade's Administrators, - - * - ' - ' 477 

* • . ^ ■ 

Walker et al. vs. Smith,* - '- - " -j -^ 152 


Walker vs. Smith, - 202 

W&llace's Lessee vs. Lawrence^ . . . .' 503 

West, Sparks vs. 238 

Wickerly, Hurst fe Carr's Lessee vs. ... 275 

Wickham^ United States vs. - - - - - 316 

Wining & Francis, United States vs. - - - 125 

Wilson, Philips's Lessee vs. - - - - - 470 

Wirtz et al.' Joy & Lawrence vs. - - - - 417 

Wirtz et al. Joy et al. vV. '517 

Woods, Ritchie*s Lessee vs. - T . ^ - ! I 





'Hon. BVOTHMIO WikBHBMfNM^ ^^Miie oi tlw 
^noms^ . , Court 

HoiL BIC9ABD PETEB9, XA^fpct Judge. 



"* Mabtin ««• Tati.o». 

Action of eovenant a|Km an Agreement under tea^ eonlaumif n ^M^ 
MP Oo nl in yiftleii^anJtpeAtiiMirerfdbttw; nc€firontC>o««bMi|iris^\ 
dictkn* the action b^ngfcr damagei etiyoteg ftvotenitoed doHn^ aa Jp 
laid m the dodMitiM. ^' 

ff an agreement ooatain a peoaky-y the pbuiitiflrmay bzilig debt fiv the aanu^ 
and for no more; or covenant, and recorer mdre or leu' damages than the 
penalty. * 

The defendant, against an express acknowledgment under aesJ, cannot dengr 

^ tiie effedt of such obBgation, from expressions In Hie kiitiimienty whidi 
amount only to an impfioation to the contiwy. 

V/OV£NANT 1^0 an agreement under eeal, wfaMrebf tiM 
defendant, m consideration of a Virginia Ireaiu ry land warrant 
Ibr twenty thonaand acres of land, imAich he ackntfiUfdfeB to 
kayt tteeiwtd 9f the ItUntiffy and of a sum ef money egreed 
\ff plaintiff to be paid on the pcrfonaanee of the work,- atipu* 
lated by the defendant ; agrees to enter the said wasrant on vft* 
cant and unappropriated land in Um Hate g^ Virgpnia> of a 
particular dc»cription| and to have the same surveyed and rfc- 
|;ularly:retttmed^ nH aft the expense of the defendant; eixept 



Mftrtin V8. Taylor. 

the surreTOr's fees. The defendant, in aapther clause of the 
agreement, covenants, immediately on receipt of said warrant, 
to proceed to locate and survey, &c. The parties, for the true 
and {aithfiil performance of all and singular the covenants, &c. 
biiid themselves each to the other in the penalty of iSl20, Vir- 
ginia currency. 

Breach assigned in the words of the covenant. Plea, cove- 
nants performed. Replication, supporting the breach in the 
declaratioi^ ^ 

Mik IMIafi o^Mtad Mm 4tfksnMlii|g^ A^fiositioii wkich Mr. 
Ingersol!^ for the pjaintiff, w|ts about to read, because not signed 
by the deponent. Ingersoll : The deposition was only intended 
to prove die execution of the covenant ; and as on this plea it 
is unnecessary to prove it, I shall not insist upon the deposi- 

Dallas moved for a nonsuit, on the grouftd that the iS 130 
l^aa in lieu oC UquiiMtfid daau^j^ea* and that . as the plauitif 
^vcottld iMMVW Ao grealer ^ubi thaa thatt the e^iivt }m4 n* i«iiis- 
V dStfim of tte eMec 

Washing'tonj J. Where there is a penalty in an agreement 
tinder seal, the party injured, may, at common law, sue for the 
. whole penalty, and must be satisfied with it ; or he may bring 
qaTeaantf and recover in damages more or less tha^ the penal- 
ly, («) If,iaUie.bitter case, the sum stipulated to be piud is not 
a penalty, but intended as a compensation for non-performance, 
it must govern the jury in the assessment of damages. But 
Ihit ip not the pNMfet case ; and yet more, it is unimportant 
OB the pment mdtsqsi, which is to nonavit the plaintiff fiu* want 
o# jvriadiotkm. The action sounds in dama^aa* 'The dcnia* 
ftidon chdmameve than 500 dollars ; and by t^ decttiona iia 
tiM Supieme Court, the anount of the plaiiitiff 'a elaioa laU m 
tiM d^lamtionf itenialies the rule for testkig Uie juriadietian of 
tll^ fe4«Mil eourlS| If etioB •verruled. 

(<^ Sac 4 Burr. 3325. ^ Bro. Tv^CmtM^itfih 

AFRIL tEilM, TS03. 


Mftrtin t». Tuykir. 


Ingersoll endeavoured to prove a receipt of defendant, bf * 
comparison of hands. Per Cur. This kind of proof it inad* 

IngersoU, having proved the Virginia treasury price of a 
land warrant, closed the opening. Dallas insisted, that the 
plaintiff had not proved delivery of the land warrant, and thera- 
ibre was not entitled to recover. That the acbaowledgmentaf 
having received it, m the first part of the jBitrument, was con- 
tradicted by the latter part, which says, that << on receipt of H^ 
urarrant, ti^- def^ndaiit *«B proe^ed t^ ioeatef* See.* fer Cuf. 
I ne aewmiMif tmsaoty Hgafliii as empveiv iwHKiwieiigBWiit ut 
the receipt, do ft away by tliese expi^esaionsy wlilEk at mefst' 
ttnoont otilf to aar impiicatloai of die eaitrary. 

2%e Co«r/, after atatia^ tm the fsfy ^»m%lkmmAf fmaS «k^ 
hibifeed WM the ankles and the pike «f a Vlrgbiia hud iM|mB«P» 
a^«h» TasAiMy) left the qoMin^ AoMfMi 19m Ihie ^imT 

V J- 

» • 

S V 

'» « 



tlie United State* m, Fisher et iL 

I ■ I i 11 

U91TBD States v«. Fxshxe bt al. Asi|iomx](8 of Petkr 

BliokT) a Bahe&upt. 

Chte, bj'thetJflfited 8tatei» of primity of payment out of the efTects of all 

iuiiAfWit and banknipt debtor^ 

X HE ifsCkMi wift hwwmhr to ftc«Hr«r ftam Hm Miignoo i of 
IKgliVE baEltfu||t, t^ MBte^t oC a jfNAMofA MIof eachm^ 
qndopi^ ^ Mlghtt «kli dftmEget, 1^. as Mtlled at tlie Trea- 
aary. Tke Ml was njarckiia^ hf tke ca^ar of the Bank of 
Hie yoked aialeay lor tbe Secretary of the Treasury, and paid 
fcr b)r a w a#ram job 4ke Bank. It waa protested, and notice 
gKen on the 1 Mk ef Apnl, tM&. BK^t kaving oeaiMtted 
an act ef hankfnptej, a ceianiitshai issoed against hlw on the 
10th of April, 1801. On the 35th, a proviuonal, and en tliar 
30th of May, an akadlnte anignment of his eikcia were made. 
Previous to these transactions, viz. in Janoary IMI, Blight 
had deposited a part of the cargo of the ship China with the 
coHector of some port in Rhode Island, to secure the duties on 
that cargo ^ of which the commissioners baring notice; they 
tome time in Apifl sent their messenger with a wammt to 
aeiae these gpoda as the property of Blight; and they* gave 
notice of the clains of the commissioners to the collector and 
marshid of tbe d&triet. On the 1 6th of Jane, 1 80 1 , an attach- 
aient was taken out in tbe name of the United States, and le- 
vied on the goods in the hands of the collector, lor tbe debt due 
on account of the bill before mentioned ; but they were after- 
wards detivered to the defendants, under an agreement that 
they should pay the debt due to the United Stalea, if it should 
be decided that the United States were entitled to hare the 
aame first tatisAed. An agreement has aho been entaead into 
en the part of the goTomment and die dribadnita^ that an ac- 

AraiL TERM, I40S. 


T%e United SUtea m^ FWier et aL, 

tion fer «Mmey M and Te€i^»9A Aould be Immglrt, aad tke 
general issue Co b« pleaded^ Mendants to adnit anAcient 
fiuids in their hands, of BUgfaC^ froperty, to pay the claim ci 
the Uiiked States, bat not eneiigit to pay all his dik^ The* 
qaest^Ni to be, whether the debt due to the Umted States from 
Bligiit is first to be satisfied <M|t of his in0ney and effects, or 
any part ftkereoiy in the defendantsf* hamto, by virtue of the at* 
tachment m their agreement mentioBed, tnr fi amy Acta of 
Congress. If |i«|gmeiit in Ibv^sAiOWthre, ti» to evlsroi la'* 
fcvoor of piaiBdff fcr %^^mt^t U^im tt» mgstiw^ tc» to iiitof ad 
generally fiwr dJsfsndniSsi - 

Dallas contewM ihat the-5th secHto «f ItoAet of Ito 94- 
March, Iff 7, 3d fbL Laws, p. 41t, 0s»s a f>ia^ to ^e • 
United States in cases of i m e i».wig«i in aD cmh^ ^aisiwuii 
of debts ihie to &e Uisted Sialaa; and ^tet tto fiM seetion of 
tbe Baakrapt Law dearly pnaias^s and saeaMa this «lg^ ef 
pfio«lty,sasa not to^ affected or impairad by 4l|^ law. Thai 
tto Uaiiad 9t«tea aat bein|f within tto Upsaarien af tiie Baak^ 
nipi Law» the Mtadanent gave a pnoHfey la tto eWoi of tto 
United §tato> He pQOcipally Bctied apon ito case af tto 
Uotod€toaKto wA. King, decidad ia tto late Caicait QooK lor 
diis staiai WaUaca^ Rep. p. 13. 

I&geisailaad TU^Naaa opposed this eanilmctiop, upon tto 
ground ttot the Act of-Sd Mhrch I79f gave*lio prefbrence to 
tto United Slates, except a^nst public ageasy; and ttorelbre 
ttoy are not in other cases to have a pviafily. 

Aliar a very toig argament by chcae psaliiaiiia, IV^A* 
twyl>a» /. afe^pad Lewis, wto was aba«t ta jtffaa ato fi>r ^to 
detodantii aad desired Dsito to conclude. 


Charge. Afts r i atalia g the case. The single q u ae t to is, has 
t&e Uailed Saatas a right to topaid tto whala af tto dabt daa 
tam tto baaiwnipt aut oif his artate* ia pvotoenaa so tto ather 
crediiaia? rhia4ifll turn aaiiaely upon tto canalmetaaa of tto 
AafeaC,«Mr«l.«toF*,.HW, fad tto Baakraac Law ; for I at 



The.UMt«d6tite* m. fUbt* M d. 


onee iny the aMdiMent wai^6[ikm etse; btottuaey unless the 
prkuitfef the Unted States ht eHMklied hy tho^c laws» the 
attnehgiewty being laid after tbe^tangOBievity ooiild give no Ika 
and no mif^ ef pvefiDaeiice to the United States ; for at that 
lime the prepertf bekiiged not tor Blight, bnt to the asaigbeea. 
This «ght of prsfciSDC B| npon^prefogative principles, has been 
wisely diachdmed hf the dittitct attorney, who feunds it upon 
alegislatine gin^t. soUly. The 69d seetion of the Bankrupt 
Um 4mkmA^^ "i¥ithiny.»nmahied in thii^iBW shall in any 
mwior 4fec« |fa» rifW «i iMfcrenee ta pcfar sniMiietlon of 
debts due to the United StaleA, as secaeei or piu i ided by any 
Isir heBrMee#9nmed| ner^hsH be oonstAied^teleaaener im- 
pair any liflMrlt or seoovty «w memf due ta'thnUiilfld Sentes^ 

or " 

-■ifr. la^ermM nmmid «• uu ypom, that aa the kingia not 
wilhin the opemttap of- th& Bankrupt Laws in Enghuid, tlias. 
seatkm wai pnly Imsnda^ te wtsfii, in regaid tn.thn UnHad 
States the Sana taga^'pffincipA^/ . Mr. Tilgknan apjMmd t» 
think that the Unitad litatss had an etectian.t»cea»e in under 
tbacommiasion and aaceiee a dividend)^ or tn refaan la do ao, 
in which latter ease the kimirupt's certiianfee *euld.%n-n»- bar 
of her claim. It is unnecessary to giro any ophnepiy iglmttier 
the United SlAtea aaay elaci to cqbm in under (ha eonsmiaaacn 
or net, beeanae Ihb is net a (jceattan nhnrein they ha9% ^iit in 
any claim, or in yhiah the bankrupt is CDdaarouiing to protect 
himself by his ceriiftanl^ The United -States contend fer a 
rigfas m ha paid ahpwhqit oft their demand, and found thinright 
cm^km aeetiei^aaaila^ and na tlse Sth sec^nn of dm Act of lim 
3d March, 1797. The 63d aectsofrof the Bnnkrupa Lmr daea 
not give a preference to the United States, but merely saves 
thaaightMilm JK^mtod States in dmea wimcn aovii a prefmnde 
had by ter he A pravienBly granted. This then, teing^me to 
the Aetol tkmM ifarabf im', which^ it is aoniandadan be- 
half of the Unimd States, gyres Ihenaa^pi ti tf mwa In aH oases 
o£ddbai.dui»larthfaB, nnr matter k^ vrtMH direil wipt*cen«t ' 

Ik ■ ■ •■ '^ 

APRIL TERlll^ laOB. 

The United Sute« w. Fifbuer et 9}. 


The title of. tjue }^w ii«f Aa Afit to plovaie^aMlM efie^tHm^ 
for tlie settlement <tf y:c<MI^ jielween the United' Stales poA 
rectrvevB qf public Monqf.^* Thie objects of the 1st section tap 
rtvenue qjficcr^ aii4 persons eAcoHfiKiMe &a puhlic mtmcjy ai|i 
directs who shall, institute sulks against such of tboHi se fine 
d^iaqueats, and declaring what iatereit jMI be recovereA 
The 2d section defines the kind^of eyidenee lo be rec w m ed ift 
such suits» for establiahing the denaaiL T)^ idLaeclieo diMSls 
the trial of ihe c»«is# to take placfi si. the reiivii timpb The44i 
sectk» piQvideii Sf>x the MMlmitf «i4 poitta ont ihe mode in 
whkti he is to eatabU^ hU ^csedksi if Jm ekinse anf^^ The JMft 
glvea ta the Unked States a. preference in ense^of MUelyrneyi 

and the ^th is «iMn thf ent^sct eC eKMii^don. afun jn d§ B wni 


^oblainedLi - . * 

The ^th sectiofi dedanes^ that ^^.niheie air »wiili> efie* 
«r 94J^0crs9n Uiereafter kennming fednktsd to the IMkM 
Scat4» hj.h»9A or otherwif#» Jikntl hecenDs^ iwniwrtnt»" the debt 
due to tl^e United States shall be first satisfied* The woida 
er 9ihf$t permnt are ceriainly bmad^^eaDnfh to cennpashend 
every f^seiiM* ^Mfi 9I debu due to Ike UniMd Stales, and t^ 
C«mt ia-AMT eattsdnflptt to gwe to tins seotien itopmgat om^ 
attrmtimv On ene side it is said^ liMt Ahnvords most ham a 
liaerai ia%9ifireu^en» so as to est^nd to a^ yeiaons indebted to 
the U^tod States,; and on the otheiy ^ Iknited intcvpretajfcaon 
ia coiUended for, so aa to confine th^ aieening. rf those worda 
to petrsona accountable lor public menegk 

Wkisre a l^w is pkdn and unaashigttan% yumf; either ^snerel 
Of liwitndezpffeisiaBS, the legidamee shevM bn k|lenBbd to 
la^ii wMl 4he|i have plaialjr expressed^ and na-raoia i8>kft fi«| 
eeofftruction. But, if from a view of the whoU lav tkknn tBgn« 
thorf Qr from other laws In pari nuUeria^ the evideni intontieD 
ia different firqm the import of the literal esprnsMne need in 
some pait of the IfW) that intiSBtioii ought to. pw n a ii^ ISot tfim 
in Urutb is Ae witfioC ike. ter-naakers. So, if Ihe/ileral ^ftpnosN 
siona w<«uld k)a4 1» ibe un i i oa unjust coaaeqiiwce% naci a eon- 


The United SIttet ««. Viaber el iL-" 

^^— — — — ^^i— i — m ill- ■ w^i— i^p^ 

Knietkni should Imi gireo ii lo avoid tiicli consequences^ i^ 
from tlie wboto puriew of the hmy it can fidriy be made, 
^hese rules are Ihaadedm lawt and in plam honest good sense; 
and I thafc will give us light enough to pursue the present 
inquky yfiA succesa. Netvr what would be the consequence of 
ik^literal'coiislnictlmi hi this case ? Not only a preference and 
inaqnahty m faiour of the tJi^ted States, but such as no pn»- 
dait eitiaen could guard hiBMelf against* As to pliUicirficera 
and agentai the^ pre or nay he haown, snd WKf pers^ dealing 
-with them does it i^ the peril of haying his deht postpoiiad to 
Aat of the Unifead Sta t es ■ h e acts with his eyes open. But If 
t«. ip^facc b. «te«W ^ .«.p««« d«aing with th, 
gofenHBCHtt there is no moae by which other clitisens can be 
put on their guard agidnst ti^mj snd coppequenlly all coofi- 
dsoce hu ^asfc OMn and asan will be destroyed. If however 
Ae law is so, k mnat be sabaMCliid to. But we moat^ace If 
auch consequewiea asay net ha avoided, by a &ar attd reaaoh- 
able construction. -'' " 

The object of the linr^ as dedtered by the title of kt is to 
provide lor the efeetuaK settlement of debts due fjroas aecoont* 
able aynts to the Umisd States. To afbct tUa» mttk a»9 
dUrected, the spe c i e s ef eHdeace to support tbe^clsin p ol t ad 
out, a speedy trisl peovided, and a preference given to the 
United States in case of a deficiencir pf esute to satisfy the 
judgments. Here then ia one entire connected system; the 
different provisions coastitnting the links of the same ohsin ■■ 
the members of the seme bod^. The title, though k esnnoc 
eaatrol the posillve expresswns of the law, ma^ assist o^hMr 
parts of the law in limiting the extent of their meaning* It ia 
admitted that the three first sections of the law i^ply to thoee 
only who ase declared by the title to be the obfecta of the law; 
the 4th BOLtion is the first which uais general expressions^ 
without a asfersoce to those who had befoip been sn^en of; 
but vHien we pome to the 5th sectknir'the rafereace is again 
taken up* with the addition of the w«N» ^ «r any other person ;^ 

AfOdL TSRM, iWi. ■■ • 


and we an «D ka^, t6 mhaA egt/e^ «h«be ^yibNit>e J<|iti Bi i ti i 0ih 

to go. fo the first pl«c^, what mceBskf w«« ^efre* i«r iribfraflle- 

iBg irooi Che mode of exprMiion upedk^ tiid At^amMHtifWUd^ 

Ibr the first time is geoera], witfiiuf pahidihr-ittftoiliot i^Mf 

of the persons before descrBi#il^ Wooid ^'bo^ famw *tee» •«» 

IPCN HI tl^e 5th as in the 4th wedkaA, te aaf, ituit « yln^: aa^ 

iMdivUluai bere«lter becoming Indebted' Ao <iii UwtM AMei^ 

simH becone'liitolt^eiit/^ >lce. ^ 

What reason can be given fin* the spee i ft ciri — dte/At atiikm 

piersoDs. mehtioBed expt^saAr in-tiie Unt macXkOn^ and ihtended 

***** ' • L 

by words of reference in the *2d vid Sdt vsdqpi'to fllnHir, that if 

the primarf object of the laMT had be^ interrupted by the 4th 

section, it was jnt^ncled to%eYesuitt«dF ia tiw Mil' 8cfc6i|dly: 

What necessity was there Ibf tKc aped ill eaflori ift'rewfifue ojfi' 

* ctrsy ifall persons Whatsoever are confptehUfldcd) li^hb are dAt- 

ors of thfe United States ? for those words Would certainly have 

comprebended revenue ofl^cera. Unless the^ are construed to 

limit und I'esirain ihe generality of the oib^r«war4s> they atf^ 

« * • ■ • ■ • 

wltkdut ^tttfy ttse whatever. If the pCAoeding 9eeliODS!of the^hMT 
had applied on/y io* revenit^e offic&p^^ thte, f&kn neceMitjf , w« 
mtist hate const riled'tlie words <« any other person," as broad aa 
tlieir haturat iniport would warrant ; tecauie we could derive 
110 rule whatever, frcmi the law itself, to limit the generality of 
the exjirei^sion. But the law professing by its title to relate tp 
all accountable agents, and the first section specifying amocigit 
those accountable agents reventte officer i^ we have a rule by 
which ^ limk the generality of the eicpresstons in the 5th sec- 
tion, viz. "or any other person accountable Jfor fi^biic money ^ 
or, <' or other person indebted as aforesaid.'* This con3t,ructiQn 
lenders the law uniform, and consistent with what it professes. 
And thirdly : The special wording of the 62d section of the 
Bankrupt Law, fumishes^another strong argument in favour of 
tlHs limitaflon of the 5th section of the law, more {mfnediately 
under consideration. If the United States were entitled to a 
preference in every possible case of debts due to them, what 




The trnitod Slates «#, Fished et lU. 

ntc0Kil:f'f9e vpeMmf ^ «<tlie light 'of^refidroDce to prior 
satbfiidiMi 'oC 4ete diie tQlte Uiitefl StKtes^ a* Beeured and 
ftrwrtded ^atiy l\am kereiefate fioBstd^'f This mode of ex- 
VMAta. i«. ctf«.ku^ « ytec an opinion, that the JegisU. 
tore snpfKmed lliece were sooM^cases whef« the pnority jiad 
not beefti provkl^d for hj^hm; for if otherwise^ it wpuld hiive 
beep eoobgh to deetore, Um tlieB«ikrupt Law should not ex. 
tend to or affect any debts due* to the Uflfeed 9t«tc»: Upon 
tMe'whole, I Miiif o^mr^ lliat the law is with the defimdams. 

The J^uty ft>unda verdict fet the defendants. ^ . 

Upea en 4ippeal, tUi judgmeat was reversed, (e) 

(a).7Xe rilWtogtaMv m Mivv A<^S^««U35S^ 
In dus CMe» ths aejfrsrfa.Cwwt dsciiai^^ 

1. The AxM of Cgiy iw, ■eoaqog to the Ua^ Ststet a pricrily of py^ 
meat oef ijf the effecto.of theif debtor, in ail cases of insolv^n^ or baak- 
luptcy, are cons^tumal. 

2. The goveriunent is to pay the dd!)ts of the Unioiit and is authoiatfed to 
nse the meafis wUch appear to ^(self most eligible to effect that ablest It 
has' oonsequendy a tight to make rendttancetf by bilh or olheMae^ and *ta 
tAethaaeprecaltfiana^drifih render the ttansactie • 

3> It hnoobjee^ to^^cbumof p4«%^«nlhej^of 1h%«Mla^ 
States that it int^rfeats with the right of thei State SQveEeJgatiaai^6^peGtii|gp 
the dignity oraebts, and vill defeat the measures Uiey have a right ;» adopt 
,to secuse themselves again^ deBoquaocies, on the part of their own revenue 
officers. Tliis result, so far as it may happen, is the necessaiy consequence 
of the supremacy of the |ai^ of the United States, on all subjects to which 
Ihe kgiahtthfc power pf Ck>ngress extends. 

Ulhe^end be leg^thnabe, and within the scope of the-Coastitatiani aU the 
MMoris which are^ appropriate, which are phanly adapted to- that ood, ^nd 
which are not prohibited, may constitutionaUy be employed to carry it iato 
effect Wharton's Digest, 81, 82. 

AHHL TEKM, t80«. U 

■I 'i^ii 

Lcivaee of ffitchie Ǥ; Woods. 




Lesseb ot Ritobib va. Woods. * . < 

trnder fbib hmt of T»|;iiiia, tibb eotiOeMe of regtef «f a piritant^ irtiA !■ 
jeqoiredlw bg giw% k at imKimii f ti <fct liJi^ llfcriufcfcHfc .^T^g 
W u .. to tl» initt» iner«lr diKctoir; 

B^ the ^fisiskms of tbc Courts of Viigiiua, a i%ht of settfement Gai)not 
pievail agunst a right onder a patent. ^ 

X HE title of tlie^>Iaintlff was under a procl^matioa warrant, 
Iiiae4 bf Lprd.Donmoi^, gp¥erAQ];Qf Virginiay to B. J^ucas, 
m 1774; by him iini||B<ii1 to thalteapprof tke plaintiffy who had 
tte saatfe yegularly surv«|r«d m \f.T5j and a pi^ent granted, to Hie governor of Virginia, 30th JxjXjj 1780. The dis- 
piited line between Virgaiia and Pennsylvania having been 
fettled by commissioners appointed by those states, and' agreed 
to in September 1780, by Pennsjjdvaaia ; she, in April 1784, 
p«eed a kw cOnfifniog'the rights of all penoqs claiming piior 
title Bnder VirgiBia. * 

Dallas ob)^ted to the patent as evid££n£«9'l|ecaiiBe no cftrtifi* 

cate of it^ bei{ig t^gistered is «Diiexed# as «dir6cted by the law 

of Virginia. 

WoMhin^ion^ J, The certificate iwmy no part of th.e title, 

which pa«6e$ by ti^e Mgning of the governor, and the affixing 

the public scAi* What.Scillows is merely directory to a public 


The plaintiff went on to prove the location of the land, by two 

surveys which he had directed to be made ; and by testimonif 

abo; to prove the poa^asion of the defendants to be within 

those boiunds. 
Ingeraoll, fior plaa^tiff, relied upon th«^ ca^ of Jones v«, 

Wittiama, in the Cour^of Appeals of Virginia, 1 Wub. Rep, 



liCflMC of RiUnii^ Mk Wooili* 



Mly that the iMvlty settlemeDt sot up hj the defiendanty would 
li|»t|>re^aU itgi^**^ ^ patent right. 

7%tf Court ia§amntA the }uryy that the law of Virginia must 
gOTepi this cas6y aid Aat^the legal rule ia^fixed by the decisioo 
}ii Jobes v9. WiUiai;)^ . Of course, that the piUintifiPs title is 
^pWd nwiA^ enfitle him to a verdict) if the jury should 
tiNii dtfmdati^ wMa pnsssiisiftn oS the Wl in 

% • 

< * 




' ■ ' 1 8 ■ ' -■ 

■« .1 u ■ 




The true rule, in cases of bankmptcy, '^% tbst if th^ originai ground of ac^ 
ikm is Ibundecl in c6ntract, but the iirane<fiate cause ames h: deMda, ani 
uic claiiD Is ibif cttimyBS ittui<)itfdstjcsdl hf^ e jt|A^itf ai^feemen^ of ndtt ill 
fId&iiQC be tepl0drtl«r cw^lleiflfe is Mt'» biru^ 

• bm^fb$dk »et vp^na^ th^ wpiniwsifiy ,. 

If the defendant had itgfeed to pay i^<a|^i^|mi cm fritoe ^ pwfofm hi% 
agreement ; or If the plaintiff eould bring either trayifl% or money bad 
and 'receivedy and waives the former by bringing the ktt^« the damages 
are due, iptfch the hw implied apratuse to pay, aAd may be proved 

hkwumeit and by <i» i iBJiwi h w •ofcJiy oAimtrtii hirt^ bat tjg itl 
of Q9d» t ^^fc cfaM^» qr of HM^pioy I yjMHMH^ 
Whei» ffiods aie deatroyedy or materiid^ i^jurod^ x>n boaM a vessel in the 
port where t;hey are shipped, the damages must be i^certained by the 
difference between the prinle cost and^charges, and the sales at the port 
of shipment ; and not by the probable profits if the goods had gone aftf^ 
til ^be poit^bf (AflR&fttnill* (iftj' 

3^ ffR pMliftfSI'piit oi^iyoafd a ftssfi bJN^iigift^ t^ tli^ defend* 
iiit, ft quantity of sugars, to be earrfed to Hftmbtrrg. 'The dafi 
Of day after she ha4 feeeWeA* her load,*ifae nearlY filled witll 
water, is consequence of iirhich the sngart vecelf ed'ab Injary of 
aboat ttfff per cent., for which this acfibi^was bfon^; stating^ 
is b usual, the kgreeitietiv.10 daffy the goodb safely, (the daii'* 
gers'of^the sea excepted,) ahd that they had be^n greatly in^ 
jnred by the n^gtect and uAsldilfttlness of the deistiAait^. Pleais, 
1. Mm a99umftiit (but to be considered as non iul If the lattef 
Sb the general issue itt iht caaa.) 3. That the defendants be'* 

(a) 8e»ri|Ais sjuOaiw^ff ^ 1 Fsteii^ Bep. Ml Wittivaaa. Coase^ai^ 
Idem. Vl% Yonqoa w. Niion et al. Idem. 221. 

g ' 1' ' ^ . <j ■ ' " ' ' 

Dutu fff^ Ifuigftttoyay 

casufr banlprupu after tbe loai, «| st8ted id thu dedaratioD, and 
had ohtained thek ceitjificate. 

The plaintiQ' intraduced a niunber of witheBm to proTe that 
the. accident conseqiience of the lumber port hav- 
ing been opened* and not aufficientlf secured before the cargo 
vaa taike^ in. % 

But the defence principal(p relied on waa, that the cause of 
action, if ftmpded ^Wf.existed and naa complete Umg bfibre 
^le bankruptcy of tt^ defci^dantsy an^ thereforethe certifies;^ 
is a bar of the actieft. T^ certiiBale vas signed Utb July 
1803, and approved Mttt Atlgnst 1803. "the loss took place 
27th October 1800. 

WASHma TOJ^, J. charged the jvtrf . If |s ^^leatiy to ha 
wondered au thht m Ij^tlit aalialictonr infotnation is to. Iwd ^ ^- 
rived on thia sulyeetj fipons tbe liTMin— of the courts in Eag^ 
landywherebankrvptlawalisive so long existed. Thecsaeswlvich 
have been cited,^ are not osily'bf modem date in general, ttut are 
inapplicable to th^ present case. They have generaliy arisen on 
contingent d^ts, debts not due at the time of (he bankruptcy^ 
or cases, where the croditor had an election to sust aa for atoft^ 
or for money had aud received. There is no eootingeney in Hie 
present deniand»*nd i^Cte hat the praaant caidd -have beoi 
brought) and^the caiw> of Stvrasxomplete before the bankrupt^ 
It is not easy to extract foom tl^iSoasA cited any piia^^les laid 
dowU) and so unifopuly adhered to by the jvdges, as to entitlf 
them to that respect^ caosideration vhich I always pay them» 
even where tUby 4m not bind aa autboriKy. Bat i thiakjeitQui^ 
may ^ gathered from those cases» and £rom the general prin- 
ciples of If^^ ia enable us to lay down a rule which will, decide 
this and cnher cases of the kind. The question is not whethea 
the demand is emmected with contract or tort^ but is the plaift: 
tiff a creditor i and does he claim a debt? These are the opera- 
live wordaof tha statute, and their leysl import asiiat b^ attend- 
ed to. ' 


•^-. ♦ » " 

Dinar w. M ia j ga t r ay d . 

.1 * ' ' ' -J ■• - ■ - 

It is not tlie'4ir0aeh of everf c^atmct ivliicb traMet a A9t, 

If a carpenter coretaaxi i» buj^ a'tkpiisc^ ani then r^aet tn 

do U, or does It muMHiili^) though tiMM k a contract, yet 

the immediate groowf of tl|e «ctloD is an ihjttrfy iir ivfilefr tte 

plaintiff tnay be rvqUited in damages * These' damagto, beibi^ 

tbey^ave aasessed by a j%iffj pannol be sail to eenetkute a darif. 

So in the presem case, tkere was. a contract to carry tM goodli 

of tbe pMiiiff^ aaf^ly. But the gjronuid of the ft^tran^ iaibr m 

injvry sutftained'by the neglect of*the deftndant's senranc Tie 

plaintifiriB i^eeldng a reparatioo in damages for this injury-^it is 

no debt, snd consequeiStly eouf^ Wt have-en^Ied the jdaintiff 

to lay such a claim beft>i;e the comraisaioneFS^ aa to laiiale him 

.to a diiridend. If sei^ dM| consenjnence is inevitable, that he is 

not barre<^bf the certMtttte. The tfae rule Seems to be << that 

if the original gfo>iiiid t>f action Is founded in contract, but the 

fm media ft cause of action anbes ex deHcf^ and is a clum ibr 

damages unliquidated by an express agreement ; or that, as the 

kw will not imply an agreemei^ to pay^ it is not such a claim 

as would be brought befdre the commissioners.'* To explain 

the role : The immediate cause of aedon in tfasa case arises ex 

i HrHa i ef fcrni'the fiuiH ^4lie defeiK^Bt; and tf£^ damages. being 

wikHnWniisil by ther parties, and the" laif crealbig no implied 

cbflttaieC on ilhe part tf the defendiiit to paV money in conse* 

<p]ence o/ it, ther^ is no iiebu BtK If th^ defendant had engaged 

to carry the goods safely,' and Vtr failure lo pay 1 900 dollars; he 

• would on the &ildre have become s^ debtor for 1600 dollars, the 

liquidaaDdldamagea; aad it woi&id jiot hate hm^a in the power 

•f thif plahitiff to*recelve. mofo^ thoagh he «bidd prove the 

ihantge Co iMive exceeded that sum. 8o it pfonKilf liad his 

sicfctioif to Uring trespass or action for money hU^antt I'eceived, 

ind he wsdves the tort, by bringing the latter action ; here the 

damages, though Unsettled, become a debt, which, the bw Im- 

plies a contract in the defbidant er aequo et bono to pay. So 

in nioiihig aecounts^ thougimhe balance is uflttqwiatedy yet the 

fausr etwtee a-contract to pay the* balance. 

16 m^M STf.VAfln4f 

Uamt At. 9fuig»troyd. 

jiHi^^w^— — — — — I ■■■■III '■ ■■ - ■» " ■■ ■ i tt A^^i— ^— — ■^^—■fc 

*- P^iM liimvl^ upon 'the a^ument, irith tfae'lHnnmary mode 
'Of MQCrHdniiig avid HbUimi c^pB tay /ttnf, and atinret eupposed 
that tkm Taataace fronvtlie baakrilpt IM% of England, w^ in-, 
4M4ed «o l|a in an kinds of dniai% and 'bo Militate tlie adjast- 
^mtmt md Byidminn j>f tbm. -^Bot i am no# satlsaad; dik tlife 
.pnmiiaM 'vaaaalj inaendad to fjure id tiie OQininiaBioiieia 4iirthe 
tfBnditar^attflfeciiOQaatodie modeofvditiatlhgainsli oMiiitM* 
4|l?AiVa> aaa-maant bf tlic 34di aection of tKe lav, and not to let 
«i an jr dahna not of thli description, if due and owinf: at the «liiie 
4if the bankrupftcy. Ppon thia p<yiat«tlfereifii>re, I an of opiBiaa 
dhe defendanta' Cannot ffrM^ct^ thennirea apdmt the preeent 
idemasd 1^ dieir «eeftific«tew (if) 

Jn Hammond's edition of Sir John Corny n's Digaid^ Tit Baoknpp^ Yfitf. 
n. p. 103, all the decisions upon the competency qf a creditor claiming'' 
damages of the bankrupt to prove under the comnussion, are coHected- 
Their insertion here iMy be tiseftdV— • 

♦•l. Where the demand rests in damages, and cannot be pertained but 
fhrougli Ae intei^dntion Af a Jury, it eannot^be' proved; thus, for mesne 
pniAltr or ahamihol'' eovenant te^ iny«tiwr act; exttift t6 piy i ^ w icy . 
fikiiigi.584. 6T.^.4«I. 77.«*^18^-^. If a dammi ii pia% Mie^itfi* 
pifftly nat» aa tfcys dittii|BeQ <Apiv;e upoa aj ^ ^sji ^f i fni jl ttia lii pi^ miajnr 
curity umy H>ply it fint ta ^e ^ppqerif-then ta t)»e latter^ and laa^ prof e £v 
the resdue. 6 Yes. $4. — 3. If a dema§4, hi the nature of damsges^ be ca* 
pable of being tt^uidated, and ascertained at the time of the bankruptcy 
taking place, so that a creditor can swear to the amoimt, he may prove it aa * 
a debt under Hie'oeauaiasion.-^. Aa hi an aeian cf aiHaimpnt on a ifwaa* 
turn mmdt, BOu^ W.-^. 'OrIT a*kon& be|;n«n to rcplwa aMk-.aii a 
givendar* aad'Hi^^iMiaforfjiated b^fiMeUli^ toiOwptM^v^ tke fdffgwb 
it may be pnor^ aad the amoiiiit to be pxpyed ia the divideed^ d^>efovt 
the bankruptcy/ aad the value of the stock, at the day the commission isfl^iea.* 
Co. Bt. Laws, 149. 7 Ves. 302.— 6. Or if mone^r be paid by one partner tp 
another (who afterwards becomes bankrupt) for the purpose of being paid 
over aa his liquidated share of a debt to their jdint creditors, and it is not 
so appHed, it may W proved" by^e aol^i^ partner as a debt under-tha 
commianon. 1 JBast, 20.-if . So a dconnd in trovez; if te «. liqnda|Bd 
amount, may be jproved ander a commission. DougL 168.—^. Dama£;es 

A9tlt TBBK 1901.- . IT 

The next {Hunt tSt are tte defeftdanti liable iom jdaMa§a^«iA 
vbat should be the meaaure of ttiem ? 

The owner of the yanei is liable li^ aU iajiiffieay wbich thoae 
who employ him sustun by the miscoilduct, ftegU|^nc<^ or lui- 
d^lfufness of the cajg[tadi9.-« N6thuig g^ ezoi||» lu||a by thifi 
r^fti W M » n law %sk uDdei^^fHid ka EnigltuMlii Uliti;|i« ^t«,of God» iM 
pliUip 9»vm^ or tJne fa^ of tde jMiny cnrmyhiif^m. Tha 
laMtBCDt «aaa lwirfl«ift)iaa»not require: u» to H'ocaad uyoii |iii 
most figftd exfe&t^f ^lat role. Th^ defendant doea not ahow 
hiinaelf to be 'withiiw iQiy of th^ exceptioA$ which can axcnte 
himy and the evidence of both partiea has been confined to the 
oonditio|i of the Lgi{ikh^B#rt. at the time the J^diiy WM tiik^n 
in. Witnesfti^ were exfuajpei to pi^ve that j(t wa^ uau^ and 
aaraniary lo^ eoatefi tte yait -mMfk jip ■wi^§ei# aad tfcuvait 
wiiko^ by caaihing^ad paxliq^ b««r* One wjaaeaa waa af ^t-* 
apKm that the inalde lashing had •strAtiently secured it. Upon 
the whole, if you are ^f opinion that the lumber port was not 
secured as is Asual, and sufficiently for the safety of the cargo ; 
ar tliat the anjiiry arose frpm tb^ carelessness, i^glect| or un* 
sfcilfiiiajHH af the captam in any q|hv.r$»l>a^; yon wiU find fbf 
iie.phiitiiff Sttph diunagea aa yo«4Bagr think n^. The prait 
<ihlf ill iwifht hawfr bcOA obtnnedi if ihe angfraha^ gone safely 
«9 Hpanbuj^y ,was ^chmaed at the openwg^ but was properly 
abandoned by the oovK^luding counseL The dtfferenee between 
tbe "priiine cost and chargea^ and the sales liere, forms a fair 
ipeaaivra oC the damagaa snftainad. 

The jury found a verdkt ib^ 4695^dottars« air thereabouts^ 
bttng ^e difference between the pria»e coal and chargeSf and 

fiquidsted by a iecucilyi thus, s note given upon compromising an action 
lor seduction, are proveable. 15 Tea. 289.<— 9. Where a bankrupt, at the 
.tee of lu8 bankruptcy, k indebt^ |a Mi asoeitvaed er ssoertainable soSSg 
it Bay be ptyrad aadsrthe r imitiiiiitai, ana iaiiaighMegtd4>y the certil>easst 
3^T.9.iS9l 47. R. STOa^O. f^i^tsbkdel^pris ass proveable. 1 9oh,jl| 
Lsf 4& 5y.lcB.4O.--U. Tho^thefJk^tbecaDftn<sted|fterthe1^ 
nipt quitted trade, it may be proved. 1 lid. Bi|«i. 3^.** 

C ^> 


Btdlbqr's LeMfee «f. Me»()e. 

, • . • •< « ' ' 

, Balfour's Lessee vs. lyiEADE. 

To coRstitate a settlement upon lands in 'the ifew purchase^'' finder the 

piovisoiis of Hie iMk flection of Ae Act of %e LegialactuTe of t*einii§r1« 

J ywma^ ffanA Ayrffl Sd,'t7n% iStliae mfl0t be wi o wjj ww ^ apeempenifd 

* bymtaa/tfbJMtenlxan'aawedliiEl^to 

flOOaUy or 1^ a tenant ; and without thii^ tiloii^ie m^prnveguaA of t&» 
, Iand» b of no importance; -except as evidence./of an intention to settle- 
(The proviso of the 9th section of the^ Act,-, applies only to those who had 
an incipient title at some time by actual settlement, preceding tlie heces- 
flity nAiieh <^fig«4 them to require "tfa^fa^nefit^of the proviso ;\or by wai^ 
lant; and 4kA sisttlemeiity ff m ittadfe, woiAi be sufficient,* although fi 
^ireae preraitod^li^ Ite^aoittiitee'of hMtMhtes^^Tniqi beim^ andi a #itt 
•B tbia seokion teq^una^f^ teoee^ioii^aientiooeiiiLlhe piwiisp. 
Urbo IB an aduaf uUkr to wIubbb a, wBrDspt may isBa€» under t^ law. . 
JtUual settlement^ under Vhe 9th section con^sts in clearings feacing^ and 
cultivating two acres of land, at least, on each 100 acres-, electing a house 
Ihereon, fit Ibr the habitation of mai), and a residence Anfinued for five 
yeaxsg &c * 

Hie survey made fo tile pboatfitttiii ease, gave no tae, %eoai— LH 
wia not a retainaUe suiveyi '3* ift ««»«ot autbofteed 1^ a mmMti-^ 41 
. was not made for a^ actual aotieri 4^ il ^fw tfit «Mi^ by to stfftlV^SItfk 

• surveyor. 

A warrant of acceptance gives no title under the law, it ^t having, beeh 

' founded on a settlement. 

The disnuasal of the caveat filed by the defendant, did not settle the ques- 
tion of tiOe, but kft1i««aiiie to be ded«ied by an ejectment if btoiigW 
irithin six>iilodllui« 

. * 


jL his was 80 qiectmctit for four tracts of Isad, lyiwff imth aii 
irest of th« Ohio and Alleghany rivers and Conewango cre«k 
in Pennsylitania. The plaintiff's title rested upon settlement 
right8> surv^ysi and usarranto* In 1793, the {^^^^^ ^"^^' ^ 
anrgeoo in tiie araiy> in fgmnmtk at Fort FraaUin. He tx)ok 
some of the aQlAen,"fMa[t out, ent down a few trt«S| and •Iniilt 
tip five penp or cabins, about tea iset square ; and witteul p«t^ 



Batfbur's Leased «#. Heaide. 

ting cofert cm tiMd^tr^MMed back td tlM fitrt ki «]loQI air or 
iCTen days, la Api^ 1799, he .had Ihwefive tntti auireytd;; 
IB the iMifte of hiaMl& lSi^Ah«lil ^allbm-^ imd iMsr o^ 
bat hondrod acres. The dofplity surveyor faad^.ufMm appUe»r 
tio^ of the.pluntiffy ^ectod ofie Wilabii jk>. laake tlie siunrcf^ 
hilt asBaethqiy jpteTcntteg Idmfroni'doini^lly tha piaiiitttr enn 
ployad Q«e Staal 4o dD«Oy and upon retunfmg tiw smveya top 
Siok^y^ he pfevaOad upofrfalm to wiite an autkoAty to Btesi' 
ao nute the survey, whkh*Stokely says he did, a^d antadatad 
it^ In order to make it appear to precede the aurvay* la May*. 
1795» 4x0 obtained varrants of acceptance ib^tiroof thesarveytf 
<if two of tk# tracts, havflig paid the consideration aaoney for. 
ibe whole. i^ * 

, In is^ttaam l(ia^ Mead»^tho ; Jutmi^mHtf^ jnding no pofiDn. 
aaayiad upon these lands, birill cahhn upoHF the fcur tracls ii^ 
aOBtroversy, covered them, or some of them, and then went offV 
aot returning afain until Nl^rcmker 1795, whea he came with 
Us fanafly te vaaadein one of the cabins, and fixed aettl^srs upon 
the otiiei traats. In July 1795, ^ plamtiff gave notice to the* 
<B{bndalit th«t he claimed the .tecMk in ^t$Amf that he intend- 
ed to aellle tham, and forewarned him to prooeed tether fdth 
Ua iaafaaaremenar tMoaoo. 

- In Jaiinary 1796, the defendant cavaa^'^tha pUintiff In fonn i 
and the same hahig tiM hajbri; the boasd o[ pt^erty in March 
1(^00, the caveats were diamieairiy4arf' wataan^s wese ordi^Red ta 
isane; bitt they never <&1 Issue, in co^seqnance of doubts sifter- 
wa|ida.eaaBting respectaig*4he plaic^ff*s title. . 

-in JIfpni 179^ the plalqttff made engagementa with spm^ 
ta aanle theae landa for haas ; lilhs aMr ttreyted •aan. 
appsoved the lands, they declined gaing OP them, upon 
hearing of the defesNtait's clfdaa* 

It was in pa^of by- mspr njftianys , that the war with the 
Indians raiHi«ad It dangaroivalo settle i% that country durjaift 
tha.yaars 1793, l794>jaBd lZ9a» and thai bU fov setUemen^i 
weiie attappted befoia the sfsrtiig ea^auma^er of 1796. 

«o' , PBKHftTLVAlttAi 

BaifofiKs Lfeflsee e*. Ileade.* 

• ■ 

Mr. iMiM and Mf. Edward Tttghtnjm eo^nd^d, that the 
fUndt hadaequhM 4i goed rii^ht'by ftetHeihaiA, «fir?ey, and 
warranty to tlie labda m questlany tiader tlie fa^rs of P^naaylYania^ 
aad t>«Hie«iai<lf tli^ Act of the 5ft of Api4 im^ Svol.^; and 
that tiie aatttofMnt •£ "Meade ip trM, was iri TiolatMii of tlia 
-plnntiPs ]iitor rtglit, and of course trald. "nsr the pUdntflf 
kid teoft {""erented by tt^ Indian iKMCifitierliMEi iMKAK or 
ftskig aettttra until the peace of Psrt &renvHlf^ made i« 
Aiigoit 17*S^ w^ relied; in Decotttber tr99; aiSil tMft 1^ 
lad attempted it in a upasonable time after that event. Thvf 
dtod^ I Dalt. #• f ball. 99% S Dalf. 457. Addiai Rep. 3 IB. 3!S« 

Mr. tngeraoU and Mr. M'9&an contended, that the "^^StafSti 
never fcad- aidie a nniliKiiilMi wSMtA the meiMlhg ^ tfe^ law»' 
^t haring 'aocompanded it with actual residenc^er intention ea 
iMde ; that <^ oodrae hb never had anincepftve^tlileto \st pfH- 
tectedy bf the proviso in the 9th section of the Act of 1799* 
They ch^ed Addison's Rep. 349. 335 x tbe caseisf the Holland 
Company v*. Cox^ in the Supreme Coort-of thi^ State ( sM fM 
decisions of fife Indgearof that^ Court, in a 9^fgnei issoo Cried 
at Sunhury. ^ * « 

• The case Was argued very much at length (b egia id ffg eH 
Saturday and hot mdingMlbre Tuesday at So^loclc, fbip Coutft 
eftting uAtH 9 .o'efoek at night on IMurdiiy and Monday,) atrt 
tfiib great ab^ltie9M'ho<hil4B9* ' ^ - x 

WABMINQTOJ^^ /. charged the jviry, .The importafloa 
«f tikis eaose led tbe C^ort to wink at aetoie hlN^latMfa iathe 
argument- of it at the b«r, whUch haitend«)d to piwiraet Tlhxf'm 
alireasonaDie* Itengdi. Depending tpon tbe constracll9n of ttftr 
laws of this state, and particalafly on that' of the Sdtyf Apni 
|792> it had at irst tbe apfffprtioee^ it dtfficuR and oomplfcaced 
l9Me« It is not easy at the first Veadipji^ of a long statute to dis^ 
cover tibe beanngS^of one section upon another, so as to oInsSn 
a distinct view of tin meaobig and intention of the Le^HbWfi. 

nr --"--■'•"" — ■ - ■■ ^ ' =^ — -^ •' ■ ■ ■ ' -4 

i^eSL TiSftM, fsds,. si 

■4 fc ■■ 

■ !■••■ t ^1 ■ « 

9ui tlM ofUM t ^i^^tiBfMltt #ftlfimlfed OB S&tttrdtqr belM 
-we parted, opOii te#iif^na* k Mwkft Is, ta^ftiieft aMerAtioiia «i 

Tli0 -better to txphJft «lit tb «iiM*&taiid tUs ^bj^, it will 
be neceesarf to tft\e & getfehElTitiw of- the dMFet'eiit sectkuift of 
Hie A^ ^ the M »f Ajj^ ir»2, upon #hieh' this ca\ito teuit 
iMi^ Tbe first ieetien ritaibes the price b€ ill ve^afit landsi 
«M pi^Tiouelf 8iet)^ed'0#- Improt^f \Hthiii the limits oF the 
iMieilk pmrhase made ii ifee^luid att fttcfcedent purchaeee, t# 
iftjr^klill&igs for every btodred aeres; that of tb^ vkcant kndt 
^itbtn theindhdb pvfehae^ made ial td^lf lyi^f eaatef Ail6ghairf 
river And Qone^bago cr^, to fife pounds ; to be granted tb 
f|il*ebaBdr8 in tbe;aiailhbii^u¥b6«itied by A^tabr laws. 

Tbe aecbotf iection oflbrs lor seit tB the o^eT teMi Of the 

. iiiate» ffibip nevth* and wetft of the Obib, Allegbcnjr, and Cone- 

%tti|fo, to piMetts iHier yiW tuitfvdthi imfito^ey and ^ifU the 

mne, or ctese it to be dene^ at die price ot ^ven pounds ten 

ebillings |MaFbiHidred'aclpeart6^ Ideated, sutreyed^and secu^ 

«is dir^MKb^ this law. It k lo be retna^ked, tliat att tbe i^bov^ 

jMdb Btf fh iHUbj^eat cBstricts, abd are bfli^ed at AMPereht prices. 

1M6 to iift'y bf ibeifo may be Jcqubfed by ^t^k^tfitSy and to att 

ofteeplriaMe lybsg nbribwid west of tbe Ohio^ Atfeg^any, an<t 

. deiiMmi^) by wNnHwfffwMiOvt eiHfleiiieist. 

Tile liiird'eeMon, l elbi tf h u i to^ the above lands, authorizes 
applicatiiaBHtt to the Secretary of the Lied (Mice, by «ny person 
having settled and imph»red/or who was de^rotls jto' settle stnd 
ilhprove a ptentstlon» to he' fitir titular ly xiticridedf §or a-warrant 
fir aijr' qvutinsMf of ted not e3rcee4ing'ibor hundred acres ; , 
wMeb Warraat is to autbOfbte and re^quire tbe Serveyor General 
• ty cauKb'tbfefsame so be sniveyed and to make return ofitj the 
gtaritee paybig ite pu^haae imoney and fees o^'office. The 
ikfgMk sectioi^, wbldi I yfo^at bi this plaoe because intimately 
connected s^b the third section, ditepts tbe deputy surveyor 
to «ST^ and mark the iifiel of the tmet, upon the itpplication 
. tf HM $ettter. This survey, I tonceivci has 'no other validity 

■ \ 

33 tfrnnsYLVAmk, 

BaUbur^B ]LiCMee t»- Header 


pAoy the applkatioii at alMUiid oftce. bv a^nrttMBt. . 

The fourth sectioD, imogat ojtkir J?qc«ilati$i^» piotecU tke 
title of an qcttuU tettUr a^a^sat a wanraot eaterad ,'vit|h the 
deputy.Bunrejrar poatmor to such actual aetttamemt. * 

The ninth sactioo^ refarnng as^lafalvaljr to the jaftda north 
and west of the Ohio, Aileghan^f and Cenwyapgo^ , dec lare^ 
that << no. warrant oi* survqr of lands wilhin. that djatpict ahaft* 
give a title, uffleas th^e g|*ant^ haa> prior to the d^to of- tlna 
warrant, nutde or cauaed to be mad^i or ^haU within two fp»», 
aftf r tkn date of it inak»6 at cause to he made, an actual settle- 
Bvent, by cFeariQig, fenciag^ «i|d cultivating,/two acres at leasts* 
in each hwdped t^fh erecting stherec^ a ho^ae^for the haifila^ 
tion of m^, and refjdii^ or oauaisig' ^a £unily to inside the^faon 
for five yeara fiext following .h>s 6i^ settling the, same, if h^ 
shall ao long live ; md, in deCMilt of au<d>^ actual aiaUleiiieBt and . 
reaidencei other actual settlers may. acquire title i^emeto." 

Let us now consider this case ap if theiaw had aftii|^pe4' here<w 
A Utle to the land in controversy lymg north an^ w«at ^ thn 
Ohio, AUegh^iy, and Conewang0| cpuld Ji>e.acquirod in D <i >«qtfie r 
manner but hy ^actual settUmetU. Ko sum of mtaf ]!^ nptHt 
entitle a person to a warrant, . uiUeas the f^pUcation nwa pt^n 
eeded by actual settlen|ent qp Xj^.bu^i ;. or if .pot s^ pracedad 
by actual settlement, the waarant ir^old^give no tj|le iKkileaa it 
were follow,ed by such settlenMAt within Wo yetoi' ibereaftcr. 

The question then is, what copatitutes such an actui^ •tulerfe 
within the i^eauing and intention of this law^M will vest ii^.liina' 
an inceptive title, soias to aui^hori^e $he granting to him a w^;:-*. 
rant ? Not . a pedis positio^not the erection of a^cabin— thfi 
clearing, or even the. f ultivation of a field: jhese acts ii|ay d^- , 
serve the name of imfirgvemenu, but not of •ettlqi^enU, There, 
must be an occupancy, accompanied with a bonaJi4f intantuui 
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 sbm,e 
distant day, but at the time he is impropn^j for if this ifxtfi/^ 



t Balfour's Lemee os. Heade. 

■ *!■ ^ ■■■■■■■■■ " fc I ■ ■ ■■ 

tion be mif Attt^re) fSlSket as to Idi own pfenotial rendence) or 
tiiftt of a tenamt i tkeii thier''exeotttkai of that iht^otidn bf audi 
actual raaMence fixes tbe dale of ttie coi&meiicemeDt of the 
settioment, and tfie preyioua^ipfoteoieihta wBl stlmd for no- 
thing in the calcukticm. The Erection of a house, and the 
dealing and ctthumting tlie groozMl^ all or el^er of them, wxf 
afford evidence of th^ f i^ mnimo wilh wMch it was done*— of 
the intention to settle; iMit neither, nor wUl all, constitute a 
aettieoMnt, if unaccom^asled by residence. Suppose these 
imiifoveBients made, the person making them declaring at the 
time that they were intended for purposes of teuporurf conre- 
nienee, and net with a view to aettle and reside/ Cduld this be 
oaUed an itotual setdemeht^ widan die meaning and InttentiDn 
of the Legisiaftii% ? Surelj not. But tha«igh such ads, against 
the oxpress dedsrationa ,of the quo afiimo, wQl not make a 
sfittlement, ii dbes not firfkyw diat the conTerio of the pvopod- 
tion will ; fer a declaration of intenthm to set^ without actu- 
aiy cuTflog tSiAt intenlion into execution, will not constitute 
an a<;tiMl Mtltement. 

Hqsr-^ these 'principles i^pfy to thextoe of the plainttff? 
In IT99 lie leaves the fet at which' he was stattenedi and in 
wMch Ike was an officer^ wiHi a lew soldiers^ ^uts down some 
trees, er^ts four or fire t^eiUj (ftr not being covered, thef do 
Jiot desctve the name of t u i nm^ and in five, six or seven days, 
tefingMMmplUed the ««k, he NMmis iMo the ftrt to his 
former place of residence. Whj did. he*retreat so priedpitate- 
1^ ? We hear of no danger existing at the time of c6mpleting 
those labours, which did net eidst during the time he was en- 
gaged in them* What prevented ^him from |»roceeifing to ower 
the cabina, and frets inhaMiiigthem? £xcept tiie Mate of 
general hostility whkh existed^in that part of the country, there 
is no evidence of a partictlar neeesdity for flight, vk the instance 
of tMa plaintiff. It is molt obvbus, that the ol^ect of his visit 
to this wilderness was to isreet what he conudered to be im^ 
pre?tment8, but they wefe in |adt not inhabitable by a human 


flifsnfBLemegi «■. ^afi^f 

t -!. ■ . ■ "^ ■ ■ ' ■■■ -' ^uy 

being, mi p op j w ^ ^ nffii tff c0Sfidptit> k9m bMa«ln«Med for a 
present 90ttlfimeDt. H#. v«ft ibeaUk^ )^ plfi««r in the arnpy, 
iod whilpt in tlit^^iarrice h^.^^wuMi lyil settle aixi nnidc io bu 
cabins, aUJbMaui^ Ibcr owmiiqr.liad b^en in a 9tate of narfe^t 
tranquiUi^* In liMnt, bis irb(»la.i:obduct» ho^h ai tbat tima tad 
iftarwairdp^^pM> wn atat^emen^ wh«ja Mterting a tiUa ta^ibf 
land ■■ m^ aa^indf in his wiili|9itt»4tf accemaaaa and oeitific^M^ 
pf ^rvfl|p^i-*«U afTard ^rao^ whiob k irresistible, that ha <Ud not 
napa m^ \7»S to seul*« Miatakj^ tte law, as it sea«ui maat 
others have dape in thia reiq^tt.'be iM^poaijed that an mfmm9e 
aient was equmdent to a aetdieine^tji-lQr vesting a right to tbbw 
tods- It in not pretended, mrm now^nor isr it piwred by a aiii* 
g^ iPt Mtfty n ot 0yen bjCnaiWi Wtm assiptad i» SMfcing isha 
p»proYe^iq| t » wthat - ,b^ cMkeiq^ited a set Hm a ftnU It k^ 
beanasbiad, cmtA tb(s LagUatwna ba^w meam bl re<|uire per* 
lM)oa to set d<mm$.be a niQnent, on (and encanipnf^gd t^ fitmr 
^gsft^.hvm a ravage enemy ? I ai^trer, na: at such a ^me, it 
was ^ptf iiaitfrobable that men msa\i be found Taab eawgb tm 
make settlegients* But yet no title could be $fiifm$dmilbwl^ 
9U0b a settlfliient; and if met ^a^^e fi^nnd haadr €«D«gli to 
brave tly deagen of a tavbge wiUettMsa, tbay lalfebrte/wIM 
imprudent m^n, but tbej aSMPUi #iia deserve the pioaiAlseA ^ln 
ifard, not for their faold«a|s» bat for th]^ir settlen^nt. 
. The first aYidance weihaTa ^iCffaiatentiMi i^ tbe iM^iff ti^ 

asakA an ai^tHat si«tleinm|^ was u> ^ H^Sr ^ ^79^ iW|r tft^ 
the actna) b<iM^ M» aetfl^i^t of the de|eii4nnt with bis fomUp 
for I give no ere4it to tbt notice Irocn tbe [^aiatiff to the 4e« 
Cind«i»t in Jttl]r ir^ji^ .«nca ao &«• fram aceegilMAying it mkUfi^ 
acW aBt4mtntt he apDakaof a fiatare. settlement, wbif^bJiiyvn 
turet was never c^m^A into eiMMiipn. Every i^g whieb.I 
have said, wilb i»speet to tbe foar bundw^ ecilM surveyed in 
Iba name of George JQnlfoMr, w^ fpply, a fortmr^ against thp 
tiffee other survey^ in the names of fi^betb Balfour, and tl^^ 
.other warranteea, who it ia not yrelended were ever privy ev^ 
to the making of the cabin%jq|;jisyer aonte^nplated a sattleibfi9li 
upon those lands. r 

« • 4 

^ » - > 

d * ^ • - • • 

f ^ # • ' 

APRIL TERM, 1803. ' . / • 25 

-1, r ■ I- ~ "^ " 

Balfour's Lessee i». -Meade. 
* - - - /- 1 ' • 

If the kw then had stopped' at the pfoviso, it is clear that 
the plaintiff never made such a settlement as would ehtitle hinf 
to a warrant. But he excuses himself from Having made bucH 
tf 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 ninth section of 
the law, which declares, that *« if any such actual settler, or any 
'Ijrantee 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 shall be driven" there- 
firom, and shall persist ^n his endeavours to make such actusil 
settlement as aforesaid ; then, in either case^ he and his heirs 
shall be entitled to have and to hold the said land^, in the sam6 
manner as if the actual settlement had beeft made and conti* 
nued." Evidence has been given of the hostile state of that 
Cfui^y during the years 1793, 1794, and 1795, and the dangef' 
to which settlers would have been exposed. We know that the 
■ treaty at Fort Grenville was signed in August 1795,*and ratified 
in December of the same year. Although Meade settled with 
his fam.ify in 'November 1795, it is not conclusive proof that 
there wtts nd danger even then ; srtd at any rate it Would require 
some little time and prepai^tioa, fbr those who had been driven 
4firto return to their settlements; and if the cause tufned upon 
the question whether the plaintiff bad persevered in his exer- 
tions to return and make such settlement As'the law requires, 
I should leave that question to the jury,- .upon fhe evidence 
Which they have heard » 

But the plaintiff^ to entitle himself to the benefit of the pro- 


« viso, should have had ^ incipient title at some time or other; 
aod this .could bnly have been created by actual settlement^ 
[^ceding the hecdssirf ivrhich obliges him to seek the benefit 
« the proviso, or by Waritat. * 

1 do not mean to say, that He must have had such an actual . 
settlement as this section requires to give a {)crfect title; for. if 
be had built a cabin, and cumfnenced his improvements in such • 
■ . ft •':•' •*•• 




•* • - • ' m ^ 



1^ ' ] •:'•• I»E<f'lf!lfLVAHl4i. 



— — i— — "^^—i — 111 1^ !■ I II I I— ^IM— — M^—l^^— — ^W— ^—i ^M— 

manner m to afKnd^ftiltiitt of f ^i>i M^ Inujmwft to r^wde, 
^4 bad be^ forc«d off Iqf 4)^ eseoiy at «nj $pig» «f lus h^ 
boun ; piMi^eti^ftt all |ffa|pr tiii||| afterwards in ^>iinniq|iy 
tp return wk» he might aafel^ 4» so ; be would hav<^. ii|n| 
aared bf tbe f^v^iso. But H is mcainbent oa the platnt^UI^^ 

^ If/f jnmli eaccQj^ himself^ from tbe performance of what h^ 
b9eii'«an«0l|f called a comlition precedent, to briBg hixmilC 
fuUf sDd fairlj within the pforiao vbich was made for h^i, 
Vfoefit. Tbl» be has not done. . 

Oeciabns.fa Ibe ^preme Covirt» and in tbe Common Ple|||| 
^f tbia St«i(e, bete teeo «ited at the bar; t#o of which I ^(jbii||^ 
QOtice, for tbe purpose of pobitfaag out the peculiar marka wbii^j^ 

■ distiiiguish tj^em ftom %& preaent, and to prevent any eoi|e 
cliisiNkna beingdrawn, fivm what has beeii sa|d| cdther t^ eoitt^ 
^(jgTl^^re or to impeacb those decisions. The cyafes I allude tqi 
«re; t%e Holland Company va, Coz$ and the fei|pe4|Lissi|^U||A 

a^SunbQX7« " 

•"jThe incipient title under which the plaintiffs dajni in tbo$ff . 

^naeS) were Mif^rratUSf authorized by the third «ectio9 of tk^f 

l^ip: the inciptoit title snathe present case is attfUm^m^ Tbiv 

Ibrq^ v«» It^be completed, by settlement, 8urYejr» and .pi|rr{n% 

these to.preeede^tbe warrant: ^d ibr the belter explanation ^ 

.this distinction, it will be inyoctaiiti to.asce^tain what acta ipfrjH; 

^conatitiue an 4^ual aeisl^r to wboia a vfarrant n|«y M«»r, aii^ 
wbat^fonsUtute <m aauai ^ticment as tbe foundaijon of a tiihte 
I have beforo expjb^^ wba may be an s^etual settler to demand 
a warrant— namely, one who has gone npon and occupied laili 
with a bona fide- intention of an actual pmMpnt residence^ al- 
tboufb be should ha|re been, compelled to abandon bi^ n^^tei 
ment, by the public enemie4»in Ibe first st^gna oflna aett}em^[|(^ 
But acti^ anttlement intended by tlic^ nintbispctionf nDnaista.Jt 
clearings fencio|^y and cuUivaling, two acres o€ groun4y at lon||i| 
^.nacb hundred acres ; erecting p bnu^e thereon foe the hafa^Mi« 
tioii of man, and a residence of five continued years nest feif 
his tot ^ettUng, if be abaU.m lonjg; live. This biadiif 



« • 


APRIL TERM, 1803. Vt 


t II m^ 

. Balfour's Leasee tit. Meade. 

settlement tmore properif deserves tlie tiain£ of imfirovemenu^ 
as die dMfbrent acts to be^|)erfoi^ed dearljr itnport. ' This will 
S8tuif&ctx)iil]r explsdn what at fifst appeared to be a& ab«ai>dity 
^ that part of the proviso, Whfeh declares, that ^ 9 itich dttuai 
settler shall be prevented from mfaking such actunl netthmeftt,^^ 
tht plain meaniil^ », thAt If a person has once ocdipied hmt 
With an intention of residing, though he has neither clearetf nor . 
fencAl any land, and, is foiled dff by the enemies of tke XSxAteS 
States, be&re he could make the improvements, and cdntinuii , 
thereon for five years, having once had im intipient title^ h^ 
shall be excused by the ^necessity wtifch preverked biti doing 
What the law required, and in the manner required. Orif tKe ^ 
Wafratit holder, who likewise has ap incipient tftl^, alth6iiglk , 
fie never put hit foot upon the lan<l, shall be prevented by this' 
same cause from making those improvements, 8cc.; he tod itaafT 
be excused, i^ as is required also (^ the settler, he has perse-' 
vered in hk endeavours to ihake those ^improvements. Self. ' « 

But what it becomes such a grantee to do, before He can 
cMm a patent^ or even a good title, is quite anotlier question^ 
Wpon Wlu«li I give no opinion. 

As to the plaintiff's sxxrtef^ and warrants^ they caaneft- give 
Um a title. Not the surveys ; First, Because they are k mere 
4escrip^n of the land, wtiick the surveyor is authorised by the 
lighth section to make, and the applicant for the warrant is 
4iTected by the third section to lodge in the land office^ at the 
tinie he applies for a warrant. It is n^erdy a demarcation or 
•(fecial location of the land', intended to be appropriated ; and 
g^ves notice of 1^ bounriik thereof, that others may be able to ' 
jaake ad|oi^g locations withoot danger of interference. This 
li aot.sniA a •etumable'suwey, So as to Jay tiie foundation of 
a patent. Setond, ft is not authorized by a warrant. Third, It 
was not 'done for an actual settler.' Fourth, It was not made by 
SB authorised surveyor, if you believe upon the evidence that 
llie aothmity to Steel was antedated, and given after the survey 
was returned. "> '• i 



* * % 

t - 

t «. 



Balfour's Lessee tw. Meade. 

*\ ■ ' , 1 ' ■ . — ' ' ' " ■ 1 — 


Not the warrsait-«-First. Because »k was not a wairapt of title» 
but of ftoceptaiice. Second. It is noltibunded on setihtmntf but 
imfirovement i, and if it had reeitod' the conAiderati9n to be 
mcXxxtX seHl^aieot, the recital would ha?e beep false in fisct, and 
«CMiid.h8ve' legal or valid consequence. 

. ; As, to the caveat; the effect of i^ was to dose the doors of. 
the ^d office ^;i|inst the further . progress of the plaintiff in 
perfecting hiS' title. The dismissipn of it again opened the 
door; but' still the question as to title is open for examination , 
in «iectinent, if brought within six months^ and the patent will 

' issue to the successful pasty. 

4 The plaintiff therefore having failed to show a title sufficient 
to enable him to recover in this action^ it is unnecessarj- \o say^ . 
any thing about .the defendant's title, and your' verdict ought 
to. hp ipt the defendant. 

The Jury found for the dtfendant* 


• , • 

• « 


I'! i 

1 ?i r. 

tg e3 

. \ 

• t 

■ • 




Barnes et al. i». BlUington et aL 


sheriff, had ^\d the goods oF the bankrupt, after an act of bank- 
ruptcy, committed, and notice of th# title of the plaintiffs. 

The case is fully stated in the charge given to the jury by 
Waa/iington^ Ju^,, after a very full argument of two days, by 
Ingersoll, Lewis, and Dallas, for the plaintiffs, and Tilghman 
and Ross for the defendants. i 

:WASHIJ\rGTOJ\r, J. The facts in this case, not disputed, 
are, that on the ^th of August 1800, Billington relieved 
M'Claws, A trades* within the meaning of the Bankrupt Law,- 
, from being taken on* a bail piece,' by giving his note to the 
. creditor. ' To secure Billington, M'Claws gave him his bond 
with a warrant of attorney to confess judgment, which was 
accordingly entered up on the 12th, on which day an execution 
issued, and was delivered to the sheriff. 

On the \Mk of January 1801, M'Claws gave his bond to 
Billington and Corless, with a warrant of attorney to cdnfess 
. judgment, for about 5,400 dollars. This was given to secure 
them for certain notes which they had, in November and De- 
. cember 1800, given to judgment creditors of M'Claws, at sixty 
and ninety days, and which relieved him from those creditors. 
Judgment on this bond was entered up on the 14th of January, 
on which day an execution issued, which was delivered to the 
sheriff, and returned in the following words, viz: << levied on 
' goods as per inventory." No inventory however was made or 
' accompanied the rqtum. The goods, by the permission of Bil- 
lington and Corless, remained in possession of M'Claws, in his 
store in Chesnut street, where he continued to carry on his trade, 
buying and selling, until the 31st of May; when the sherifiV 
under the execution of the 14th of January, took possewiofitrf 
all the goods in this store, and put a lock on the door. 

On the 1st of June' following, a capias issued ag^nst M'Claws, 
al the suit of Goodwin. The property seized by the sheriff to 
satisfy Billington and Corless 's execution, was advertised for 

sale on the 1st 6f June, and was sold on the 8th. 

/ .-' ...■••. 


• • 

^ t 

I' : 


4. .' 


i : '^ "I 

■m m 


h " ^ 

p £<l ECl 

I3|^ ^IttWikid al» 
Uiiia B^wlU decide ■ 

jt3 604 tkM-illieie 


b46: (taoedilHt. 

tuallf em 
)0 whieb,! 

52r ' • • FE-NNS YLVANIA; 

Barnes eta), vs, BiUington et air 

Wkg- chtmMj liut enabled hon to go on again ivltii hltf budnesa 
lis brmMify and quieted the akMi #fich hb embaiHaiiiMita 
had eseilM* He admits, that at that time he infbrmed-4Mlng- 
fim and Cotieaa'that he could p^ twentf alittings in the pound 
if he flhoiild be fortunate in eeliecting hia outstanding debts* 
No security w)iatever was taken by ^Btflington and Corless at 

* thai time, Ant^on the 13th of Jasfuary they pressed him fikr se« 
ciuity) saying ^at it was desired on account of the wi^ and 
Cunily of M'Claiwat who were strangers. Though he consider- 
ed this as girini^.them a preference, yet his gratitude for the 
aide they had eft rad hiaa, induced hiifh to acquiesce. He ac- 
GMdlngly gaw than, at dieir request^ the bond with a warrant 
of attorney to caaSmm Jadgment, as before mentioned. He says^ 
that on the Slatef May he was informed by Billington and 
Corlessy tbift'they bad ordered the goods in the store in Ches- 
nut street to M sold 4o satisfy their execution, issued on the 
14th, that he cAnnpiained of UlAi'treatment, and offered to release 
diem fimn tkeir liability by security, if they would wait twenty 
days. They were inexorable, and on the same day he gave no- 
ttee of tfaW pioceeding to his prindpal creditors. On the 1^ 

" of June,'9«ter, (as appears by hV deposition) being i*aheriff's' 
.tfitcer, was i^pplied tm by Goodwin to serve a writ upon 
M'Claws^ He desired Goo^in to'go to the house aod waH • 
Ibr hi^9.«i4 be would joia him there in a short tkne. When 
' he came, k^rfanmi^ GoodwiA».there, the door of the house fast- 
enedy and admitlaflNse lefcued by some person from within, who 
aaid M'Claws was liot at home. Shortly after, however, M'Clawa 
raised .up a' window, and'infonned the dftcer he could not see 
him, Md tint he would, not be arrested at'tbat time. Upon 

* ^ktmg fh^ houeei Cktodwinoffered Strtar two doHarai aCViriah 
he was s uipiiaod , baf al length said «-! aospect you waaf to 
Oiihii H'Clawa a bankmpt; If so, the.flii.on those oce o i i e pa 
is eight dollars.'* Goodwin replied that he should be paid the v 
eig^t dollars. Some, time afterwards he applied to Goodwhi 
iiE>r tlMi six delAtrsii who repUedi thatili'Claws w^u{6 pay hiat^ 

• , . " . • . • •. 

* ' • - ■* .' • 




et aL v«. Billiiigton et al. 

M'^«n gihiHiiI to do, and ^ter was iMiged to warrant 
Goodwin fof^ it. . ■ » 

9Ulmt andStrackff^ two jhajifffs oncers, slate, th«lhM*C]ttws 
was yuUkly oikt aauinal -in Deeember, and so on ail hxng at 
fco fiTed in Chettittt atroet ; tbati he freqoentlf eaiile to the 
a^erUT'a office, and ivquested, tf any^^ldng should come againat 
laiBfjto let him knowf and he wiould At o^ce gitteiiMi; that ho 
i^Kike o£. making arrangements to pay BUlington and Corlase^ 

• fudgment, wbiclv Strieker says led them to |XMttpdDe the asde o£ • 
lis pixiperty, as Ke thiirks. Reed and Jones ite> ^eak of steeing 
M'Ciaws publicly in the street in Deeemher, and up to Mey, 
and diacovered no difference in his coiidttiUf or any attempt to 
wMdratr himself. 

Up6n this evidence, the first question is^itd M'Claws com* 

*vA an act of bankruptcy on the 1st of June laoi, or at any 
pfoeeding period, within si:^ months of the 5th of June, when 
4ie conaiaisflion issued. If^lie dU, then, secondly, nHiat effect 
would it vhave upon BiUington and CorkM* execution of the 
Uch.teftuavy? . > . 

' Fir^t. in exaraiblng the ^irat ^uestion^ we must pioteeil by - 
its{]^. Dad he commit an aat of banktuptcy at ai^ iime before 
the J atk of January 18Q1 ? •• 

' itf'Claiwa and Maithews give evidence of his emb^rvasBments, 
of hi^orde^to be denied to tredkors, and it appears that he 
mMMf wa$ denied. Other witneMse say that ho went out 
Ijihildy, and carried on buskiess flts'nfnnl. Byrt, .though it 
wore clear that he did attempt to conceal hknaelf from his 
creditor^ and Was do a i a d to them^ tUs would not constitute an 
ict of bankruptcy under the Bankrupt Laws of tbo United 
teteo, tlfcoggh it would under the Baakropt Laws of En^^and. 
. tbm fifot elass of casea in our statute^ which constitutes an act 
of- bsAkniptcy, is geivg out of the 9tate, remainhig absent 
lii«(«6iom, concealing hiBisdf Withip tho State,^ot keeping. his 
li«se wUl intent to delay or ^raud hv^ credftors^ so. that he 
Oitmt t»iMia9AfMk ppoaosSL SothatoonooakDieotfrom or 

I ' 





Bames et aL w. Billingj^on ek il. 

iliiiiil to cre€lit<M*8, k not ah' aet of baa im |<i if ,4f it does wM 
prevent the service of process* 

^ixth ttems tibiit be was dciiM<» iiftfftiii^^ a alMiffS «ft' 
ccr» te December 1800. 4k% to tiiiiy the law i% ^bat jtf the 
ilbtor, with intenti^D to delaf or daiMmd ids cteiKtorB, 9faiJ| 
so coBoaal luniai^f or keep bis boose, Hwfe be cannot be aemii 
with prowMa, Ibss is an aet «f b^kniptc}^. Mathewto pihifid 
Ihai this oAccr called «nd was darned, bnt dpes not ai^ vm 
what d«7 in De«ei6l>er. It is in>n»teml whether the onler < 
M'Claws to Ms aiark was to deny Inm to cre^ors oid)r,tMrlib 
tbem and otbars; ^feryif in consequence of concealm^kt from 
tredUvrw ait/y, a dantal was made to an officer ^ who was tlm»> 
by prevented from serrbig process upon hira, it would hawr 
been an act of babferaptcy. 

But there ai« two reasons why the refosal to Hartnng did«at 
constitute ani aet of bankrupteys First, because it does not^^^- 
pe«r that' be dame to nerve Mm #M firoceh*, ud seooMly) If 
h did 00 appear, it i^uld also be proved to your salis&ctiMi 
that the drcumttaitoe took pteee on or after the Ml qf Decern" 
Hr^ witMa aix months prevlaua to taking out th* cBEonniissiDBF. 
As to ^e irat paoit, it is cleaf^ that unlesa tlie wfipcar goes*^ 
the bouse of the debtor io eerve flrocets^ it cannot be aaid iMt 
tbe oonceidment frrevermd bim from servmg proeeas^ 1%ob 
Uie aaiim principle fit is, that la England, whe^ dei^al to«ii ' 
^redkof wW eonstkute a^^act of bankruptcy, it mast be a t3«- 
diter oottiiBg to dim ind payment of a debt* The office^ ov te 
■creditor migbl call as « friend or neighbour, and not wittt m 
view to serv« t>roce8s or to demand a dlM» 

iPbe nelct perk>d tube noticed is the l9tb*of January iHOi. 
ilie bond executed en that day, it is«aid,^was ^n^f a fta i l 
lence Io MHingCon and Gorleto on the «vw ^ and hi ooMtraplt- 
^3oD bf ^ bankruptcy. If this were tmo^ yet ^o pM*i«iM» 
Would not constitute an art of bankmptey^ tboufgk it would b^ 
void, as a fraud upon the general cvodftom ; bwt slBllt ai > l < 
bt kicumbent M the plu^Slk to estaUiali'te kd of baaknip*- 


Af RIL TERllf, 1M3. Al 

«HW*U » »P 

et «]. t». BiWjigton et jiL 

a »■ ■ ■ — -I.. — 1. ■ ■ MM n il la ' i I I !■■ Il^«— H^^pW^f^^ 

cy, to caitte*^hn^<» la^eoirer. H k tfue^ thikt the eaeaitiDii 

Immfid mpbn ite fudtpmil «Meji Hus b|»id»«iitberindt ttiiglU 

sMMMtife^ ftti Mt of b — kil Pt L y, If it was -dmrn tA» we^nmtf 

or-^wMi^ tiie pipenreiMPVt ^ M'Claws ; as if .at tk» timm h* 

ppe tiie baiHly it tras mgr0tA that jodymenl shoiikl ^md/tmi 

up, and exe<mtipn t^Mn cmt .and lavled iadiiiediilalf • ilitt if 

tiK qat c ri n g up*the ju^^ment and avavd of exetm^mm ware acta 

oAaiiluigton and.Coriesa, unsolicited bf M'Clawat-of not agreed 

apon when he gate the bond, it as not ;«» oet ef bankraptcf . 

O^ the dne hand, . the unwiliingiMtta with which M'Clawa 

§ave tMa aecurttyy seenis to discoontanpnee the idea of hilh 

Iwailig requeated or procured what feliowed. On the ethMTf 

C0imderatioa8 of bienefit to his famUf yilMnni out by Btlliogloii 

and CcMriesa, might have iifflnenced him t^ wM k. This, lioir* 

eiier, is a aiA^ect more proper for ^e deeiaia* ef the jury then 

4f the Court, and therefcnre it is left tp them to aeyi upon all the 

cteumettticea gitefr in evideaceiy whether tJie tahhog the gooda 

.#-tfae defendant ix^ eseeutaon, waa or wae not hy ^ precure- 

Wtt -new eottie to the lat day ef^ Jnne, when, prime AMia, an 
act of faaaimiplty waa eommilted. Snter waa «€ the h»nee of 
MfClawa with prooaaa, find waa prerented from eervteg it hy 
UW bon a a bemg lacked np, and M'Clawflr within, a e ih rtng m^ 
■llnucete the oileer. If the jxiry should be of ofiiftieQ that 
iMa was a fair, Abenaty. ^^ansaetlan, betweei^ Oto^iHli and 
WChmh then there is ne doQbl> th«t on the ^ of Juhe ad act 
el bnnkmptcy was committed. If on tife ethet hand they ari 
ef «|MMen, thai it waa a concerted meaaure, between M'Qaws 
aM Geodwie, or hetween M'Clawi ai|i some of his creditorsi 
ihett lrle*«ef anehrai^ Ml 4» wMI gite rnlidity to the commb* 
ihA egtltfei arsriikert- oet pelry to the. plot, because if cannot 
WmM Ihat h» ttfec^ataf hfioaaelf, so that process eonid not he 
•served upon him, witll Intent to delay and defraud his enedi* 
eme, wtanrk wee^deoe atiherequest and hy ccme^ with his 



' Bttmeaet«l. tx. BilliagHMt-ekaL 

clrtum»taiiees:4itiuidirig tUs ttmmm i ^ a^MiM oa tke 
31«t M«f4 in coaaequeDceof-Baiiiigt^^Mi'CSttiMB' dKwrami- 
lion to pi^e^ t0tke nals of M'C^ifm' foods, l^'tftttMHm dim 
il|^o»iir8 principitl creditors and wiforiiedtliwii^it. TUMiext 


di«f« Goodwin cttrri^d the oSoer ttf ««iW» pnfctea oo M*€li|««* 
Goodorin 'first got to tke hoiMef and had tiint to i^jise M^C^MMl 
of the apy loxh of^the ^aftris ao that .the door m^ht be fiiiiWMt " 
edy if it was «kCOiicenflKi ^ittg* The refusal to <>pen tiie doa^ * 
the offer to Sater ^of |vo d<^ta«; his suapicions and demand^ 
eight dollars a« aha fee on such occasioiis; the' implied. aickD<Mi« 
l«dg«iet|t of thA trath'Of.these suspicions by Goodwhi, invtatiag 
that he ahouk} be paidf and referring him to M'Ciawa*fef^::ttM»' 
moneyy are circmn<(^ ai i oeS | which, taken together, aiftird^iinng, 
g^und to suapect tl^t tbe whole was a cooeoried bustt^DSa. 
On -the othfir kmAt as moat of the suspicious circofnatancoa* 
]pa9^d betw«p&-€voadwin and the ofiieer, not in the presoDce of 
M'Ciawa» it doos not -ioUow 'with, aay degoaeof cortaintf, t^t 
M'Claws aroo refoaed jin order to fovoui the views of Ctbodwia^. 
or of the credicdrs. Upon the whole, this is a question depond* 
ing ao miHil^ '^upoQ avideiKe* tikml i l^ve the juvfrto sty, . 
ivholhiii^thetisaniiaationf of the Ist of Juae w«aa ^dft^oaigrnr 
5C»neert^. (f the h^ttAC, the verdict must ho for the A^kmifSttk 
i|aleia«|l9M^ jury nhoukl be'of opii^mi that tltarexecttliaiKef tfec 
f4th Jaimu-y waf issued MMi. levied by tjte^yiiciwuiniMtt «i 
]^'£;i$twfti9 ^cb else the act of bankru^cy, wiU d«fiaat ^ 
<^eciiti(|R of Ptljiigrop . wpi .Corlassy however logal it jm^gliiite 
Ip.oiher t^^acta. ^ut^if the jury ahotfld be of opiiMMi fljahiiJ 
^e plaiati|b upon that.fMifiii^ and sho.uid think. that the pvoi^ 
ceedinga of the lat of 4lMie were a^koraor|[| the ^aijttifti HH • 
have estabUohed the act of baak^u{9le^»ii Uwit^4ay; fMi 
vili be HBcessarjr to inquire, a^ooodlyvwllaivtefsl oiiio^ U wM 
|»v0 4ipon the executioo of Billiogtoo ottdQ^rieoa ^MdnM4|k 
of January: 

. T^e Slat sQptsoB of the BanUnpt Law^ «ieoo|i!^ imuK A» 
general masaof creditMi wka aton mmMm tmpJtM^^^^Wk^ 

JlPIUL T£RM, 1803. 


rf ^1 

«t al. t». BUlinc^ton et aL 


the coaHiMotii tittfe -iribo had oteiiiMMl a lien ttf an «mc«« 
iao% AMMff Ml uyon tiw «W;# of tile^ basihmpt previa^, ta tW 
aot ofbijitoMlpiBy^ The c ft eet iot t % was Ubb exoMtiMi %«/4f 
«Bima«iill>eita^;the Istof lune^ . . 

' The filets are, that aft^ the exifeutioii was levieA^ ch» gqajl 
raauaned in* the iHMsesaioa 0f M'Clawa, by the permiMm <if 
' Kttingtoii ahd Corless $ and he «Matlaued to emmiia^Y^ act 
of ownership over them) UDtB the 3l8t of May or the lat of June; 
It was strongly cootended at the bar^ hy ^hcdefendaAta'.eoaD- 
aely that if an execatiDD be once Umdy a liiB attaches, which 
Witt iMQBv'ail against snbaequent ezebntiMis and sabsequeat pur* 
^lasers, although the property sriaadihas been Tc-deli;r«red t6 
* the debtor, has remained in his posSMaM lor any length o£ 
txrae, and 'so contkiued sft the time of such atihswi»mit»a«eai*^ 
tion or sale., i was surprised at JUiIb doc(iai«ia» h«l ikt wmto so 
when the aut)girity of the Supreme Court of VeaBMyWania was 
'^(ooaod in support of it. I shoaM cettaiBly ^M||iaie with great 
mraetiDn any questsan . decided by th^ lewned f udig a a of that 
Conrt, before I ventsred to pijanomooa a different ophsan. Al^ 
thoo^ 9ot bound hf their decisions, they are and 'oǤbl la he 
h^ly respected; but if tberie^be-a qoealte^ iMiiah haa long 
ekace haso settled and at rest; if thcaa^ver was a paint aaltled 
npon aarrect and iftoiid' prinripies»it is iha present f >aad in #- 
vaet contradMon of the argumspifor the defrndanfta. Nq^hsng 
i»«ild be mire saischlevous^ thm^ permit a doneant e n n cpt isii 
to wBaup» atanydistant penody to dafsat a snbae^veaisale fms* 
ly made, or a^posteiior eneciitiott^ And in wha| dsaa an eta^ 
ontkn in the sheriff's hands diffet frosa one ifhftch hw. been 
levied, and the peoperty re-deliwed to the debtor; enabling 
. hM thereby to Sisiyphrrafclae credit, and to defraod thoae with 
wh — a ha nay daaU Fassaedon of personal propaiKf is ^ 
oafyindii^saisf phsfKB^^ and for this reason; if thrTsftdMvtBf 
anph:prop«sty remain hn possession, it is frsadakm aid vqM 
ngaiast eradiinfs and pnsnhasers. \% caansfthn said that an 
Mncntisn ia^eaHy oomemadf where the iri»at is psradaed by 

• ^ 

• ' .^;/ 


. ■ ; 

Barnes et sL iw. BiDii^ptMi «t ai 

■ I ' , I ■ J III! I - II ■ ■ ■ I * I I B 

tkv pl«Mff Id rotain powiiiioa» 4|nd faeifte Uw M>iMi iii m of 
ameff^ aver it wia^ h»beSam Md 4iiie. Tbi «•»! •( «^ 
B«b«ie is to cl|«q*« di6 ppoj^ertf kil^ foodvMi tarw^rit in 
tile sheriff; but no change in thin cMO^wtt ftodmsod;'^*^ li«ft 
cfeModi bodi irere p^evente^ battue -lra«d.i»likk ikip4»m im-* 
pllepf iHieM the propeitf be&^ efaMfed, pos^ssioD vematao 
with the Juimmi ^wner, and that with the consent of tl^ perton 
entitled. I mm pieaased to Btad that this c^ioion corresponda* 
with that of tho l upiip w tt Court of Pennsylvaniar in the case of 
C^Mtt0eUor and FfaiBipe» ai|bQu|^h I do not juid my 'assent to 
tho diitinotMBy thesa taken, between houaehoid furniture and 
other goods. - The daaiajan in the late Circuit Courts in tficj 
«iaae*'of the 'United tUMs^-vf* Cimainf hami> contaios a full mA 
aMo Imtatsgainn of'tiHs dodtnxie^andis in peflbct unison miA^ 
liMs BngliBii dodsimsi sad widi my opinion* But.tkfi^is a»» 
oHwrohyoeim «» fhcrHAb of ttUington and Cogass undertiua* 
Meeutiout wMeis i» equally iMkf a»d that is the insufiiGieaipy 
of the. lo«f . The sfccinff diust always d es ignat e tiio praparty ' 
aaked OKier tho executieiH eftlMtr in 'the body of- his retuniy or 
liy fafMWee to a aai^edole accsoMpanyifffg it. The>aeyaen ia 
obrioua y the edbecMioB creating a Uen, it ahoul^ Isa taown to 
otlitrs wiM may take pi«feas|or e»aDOIioas, or, who mmf deal 
wUh tlfe debtor, whaVfroportf ia affiseted by tJbaJiieot mi vhmt 
lanov Ii» this cate, the rato K i ia, ^ leried <«ti gooAraa per ai*' 
"HMmrft^ ttiMto inventory was made, or returned witii theeset 
eoiion, Aa liPCtowa soaaiawted from Janliary to Jwm to scBowt 
bay aa uaml, itof«tooa can aay whether any, and whieh of the 
arddea 8oM*ODrthe 8th of June, were levied upon on the 14iii 
January. • " ^ # 

Upon the whole, if the jury ane of opWoa that an aict «£ 
bcBikiupllcy was coHMMtfed by ArCtews dOtAm lUk or lish^of 
MMaffyy tir on tho lat of June; they muat ftad h-ven^set tel|M 
ptamtilli, noCMihsianding BillmgtoQ and ^^oiiosq^ oR^ooiian s tf 

ofhcrwise, they n^oat fio( for the dofaiAsnta< 

\ • ■ » t • 


ANttL TSllM» 1803. M 


M*GAjKX>a xf«. Turn IwsuAuiNeB Company of Penitsii^vania. 

The alleged ci»toins ia PhiUd^hlay to strike oiF wie4hM of 1b^ gntn 
freight, for clvaigesy and tp psy tW94hird8 only to the aasuied, in a policy 
on freight, where a total loto has occurred j ia unreosoHaUe, and is in ditect 
oppoation to the jterma of the poUcy. 

9uA«i if such an alleged etnlxna were geiieia^lBiiO!*^ 


in its operatioD, what would have been its opcmtioQ ? 
Tbe rules of law in reladon to the prool^ and nature of customs. 

CoVISNANT xx^^ a policy t»f hisuffltittoii l^OOOiMtaurs, 
ft>r the frei^t of tibe Hei<culoi from> Nofr^Yotk t» Httthvirf « 
Slie was ioBt near the pon of &er ^Mdasi0^ oHd the eargO) 
except a few articles, fotafiy perlshe^- 

THe Siteiaratioe convpany, iipMi nodde of the ttMmuoe, ad- 
juated the loss acclfirding to tlte MbVmg Recount, vtA Pilfered 

t6 pa.y the halance, which the pMhtflff tefosed. ^ % / 


9$m€meM fif the y^eowmi* 


A tnontit of fieei^t, as per fi^ig^ list*^n>duced 

by assnred, - Sn^S9Ǥft 

I^edact one-thb^l^ - ^Wtk $6 

■ ■ J li ' l I I M l I lli» 

Premium to cover at 5 per cental 2 per cent, in* 
. ^ case of lossy and } per cent, commissions 

for effecting insurance oa ySytOS 58, - - 630 36 . 

, TIte Mill' ttmsBiA \ff, the conpaoy was ^ - IS^oeo Oo^ 


^Over4nsure4» - - 3,596 42 




4 * 



McGregor w. The Intonuice Company of 

Imnmace company are^ liaUe for 

total loss on ..... BS»4QS 98 
2 per cant, aa uauti, ..... i^or 

And for return premium on SS^^pfi 43, 

OYer-insuredy at 5 per cent. - gl79 82 
i per cent, as custcHnaryi - - - - - 17 98 

.8,235 51 

164 84 

8,397 35 ' 

. • 

There win als6 be a deduction from the above for such pre- ' 
portion of the freight as the insured received on goods saved. 

Mr. Levy, for the pUJUtifT, having added the primage to ihe 
freigl^ list, de.mande4 the aggregate amount, insistiiig thaft 
provisiom lor the cc^w were a charge upon the sh^), and thai 
w^s were not. wned wh^i the ship did not arrive, and con* 
sequently could not be charged to the freight. 

The dfifoidants', couoad, to justify the statement vridg^ they 
^ad made, and by« whjich they were willing to settle; cabled a 
number pf witnesses, who were or had- been /insurers in Phila- 
delphia, or who had been employed in the adjustment pflosaev; 
who stated, the uniform and invariable pfiKlice of the offices in 
P.hilad^phia, as ifeU s;^ of the private underwriti^ had been 
for many years past, in the case of a total loss of fre%lit insured 
in an o^fi^ poUcy; to strike off from the freight list one*third'of - 
tte amount, to cover the wages, provisions,- and other charged ^ 
upon the freight, and to add the premium to cover at five 
per cent, ai^ two per cent ; in other words, that two*thirds of 
the freight list formed (accofdlhg to uniform usage in Pl^add- 
pfaia for twenty or thirty years back, antt ^s fkr back as the 
witnesses could remember) the nett freight and was oonsiderad ^ 
as the ipterest really insurable^ The adjimiag %kB^ i» ^ 
insurance eempany suted, that where no loss hi^paned, tte- 
company would- at an^ time, upon dui^aQd, retiim the preiiiium ., 
upon on^-third Of. the freight list^ though h^ recoMei^ed hot 


JumL iMM, 1801 



M'Gregor tv. The fneutance Compahf of Pennsylvania. 



one iiistMkce #lreh5 it n^ dooe^ or had been demanded Oho 
witness sidd that k^hftd been cooceftied in prodtirinig kiiunmeeSy 
as well as in underwriting at Lloyd's CofTee-HouBe, in^Otidony 
ftr teti yearn, and that (he custom there was the same. . 

The plaintiflr llvett in New-York, when this policy wai fefect- 
ed^ for him by Mr. ^^ylor of Philadelphia. iVylor suted^ that* 
he nerer had heard of such a rule bein'^ established ; tbtt be- 
ing desired at the office to give his orders for the insurance, he 
gave them in th^ words of his principal. Some of the witnesses 
stated, that they had very frequently advised those wht) applied 
\o insure, to value -theiV policies instead of having them open.^ 

Mr. Rawle, to show that the construction of policies is cbh- 
trolled by usage, cited Parke on Insurance^ 30. 44. 58. 60. ThW 
nett freight is what remsuns after wages, provisions, «nd other 
expenses, are deducted. He cited 1 Abbot on^^ipping, 328. 
1 MagittS, 52. Westc. 244. Marshal!, 467. 3^^. 571. 627. ' '' 
- Levy contended, that the cases cited, tfVe as to the usage of H 
particular trade; which is not like thb case : he cited PiHk.'^ 011 
Itisutance, 104i 

WA^BHIM^T^ftj J. Customs 'acquife the forc^ df lawj 
because, as they must be ancient, unTforni, and reasonable, they 
must have beto generally i^cdied, khown, and approved. 
Tlie custom of merchants is. fbuntfed on general consent and 
nit&ge practised amongst merchsntit; and may or ought to Ite 
known by ail who enter into negotiations wittilA the influences 
^f'tfais law. Yhe usage of a particulsU' trade, iii 'supposed to be 
inown by those who engage in that trade ; it is qt ought to be 
e^tiftlly well known by the person who insures against the risks 
i&cideiil to tbat trade, as to the person engaging in It. But 
Uiat w^lch id called a usage, in this case, is nothing more tHaH 
ATtle estabHflli^ by a paftlculaf class of men, to control a con- 
trlct entered into by them with others, not privy nor Consenting 
|0 the mle; aM who are md can be under ilo legal' obligation. 
Id kflow of ito i^stence. It U a Iftw ^vetnln^f this spedeg of 



■ J 

M'Gregor vs. The Insunuice Company pf PenQsj^Ivuiia. 

- ^ '■ ' • 

CQDtract| differeiit from the genjsral Uw upon t^e 9pJ:|i^t, ^od 
YFyi^V ^ ji^neral w^f» of eyiciet^e« I wip Qot say^ tbat if 
both gfffli^ coDsetitcid) the assured m^ght xiot bind himself to 
ag^ree to such a. mode of adjusttnent ; or th^ if t(ie as9UF4»d 
knew of the rule, and thiit it waa uniform, he would not be 
1)9ttiid by it under aii implied conaeift. But I hold it ivec^^a^i 
that notice to the assured of such a rule shoald be proved, or 
tlie evidence should be siich that the jury might fairly pre^me 
it. The rule in this case is in direct hostility with the plai^ 
naeaniog of the oontractf and is intended 'to make it speak a 
li^ngu^ge totally different from the obv|ous import of the words. 
The policy obliges the company to pay th^ value of t^e ndtt 
i|:)^ght) and the rule, excuses them from this obligatioi)^ Mpcm. 
t|ipir paying two-thirds of the gross freight. The fsu^e of xJ^ 
contnw^y so ftr from lepidiqg the assured to miike inquiries re- 
tpaoting thi# rule^ is calculated to deceive the party intf> a 
contrary bel^frfl The rule is unequal and unreasonable, becai^se 
the sj^ne deduction being made whether the voyage bp long qr 
short, the iftdemnity, in two cases exactly alike, ekcept as to th,e 
length offjikt veyage, might be complete in one case, and £gJ1 
Very ApH of it in the ^ther. If the assured always kaew Uwt 
the rule of the office was Aot to insure jmore than twR-thiitia of 
the nett freight, he might uul^ v^, a valued polic^^ or coy^er the 
ivsidue in some other office, f hp introductif}^n of a y^prj few 
w^rds ikito the policy, would rempye all ii^convenience, by ex-' 
pressing the interest intei^ed tp be covered. ^ 

That the rule is very Utiles known, even by those who hav^ 
been insured, is clear from the evidence of (he adjusting clerk ^ 
who can furnish but one ifistance of a return pren^ium Uj^rn, 
th^ one-^hird not covered, where the vessel went safe ; and y^t 
it is spifrcely to be supposed, that if thf rul^ had be^.gffLfirally . 
kifQwi)) aimU^ returns would not alwsys h^ve been d^aipan^fvi.. 

Upon tlK whole, I think the plaifjtif is fq^^tl^^ ^ ^fcover 
one-third of ihe nett freight, which the jury w^uld adjust. 

In con/ormis^ with thU cfmr^g^ i^ejuryi/ofnd v^r^Lfbr, 


APiSh TtRMy 1803. , si 

ATinstroE^ vs. Brown. 

AmctfTEOKo -00. BmowK. 

A coinrrasaon directed to Jive conimissionerB^ to be execated by ikanf must 
be executed by the whole five persons j although the commiadoners no- 
minated by the party objecting to the execution, were present, but did 
not act 

Itie drawer of a biQ of exchange, protested alter accqi|apce» having paid 
the damages, canaot set off the same* m an action agipst him by th« ^ 
acceptor, on another account, although* the acceptor hfd funds in bis 

hands to pay the bill, the damages being unhqu id ated. 


AyLEO in this case, that if a commtesion for taking deposi- 
tions be directed to five commissionersy of whom three ara 
named by the plaintiff and two by the defendant^ fuid is exe- - 
cuted by three only, or by any number less than the whole; the 
deposition is not well taken, and cannot be read \ although th^ 
t]fro campiissfoners named by the defendant^ hj w^ni the ob- 
jection is mjade, were present. Their authority is special, and 
must be executed according to the tenor of it. It is unusual ' 
to require that more than two or three of tiie commissioners 
named shall act, so that one in each nomination be present, to 
execute it. 

Secondly : It was ruled that the dra^ver of a bill whiph was 
protested, having paid twenty per ceqt^ damages thereon, can- 
not, in an action against him by tb^ acceptor on another ac^ 
covint, offset them, against the acceptor, who had funds in his 
'hands to have paid the bill, because they are unliquidated ' 

• » 








HuMPttftliYS V«. BmGHT's AsSlGKftKS. 

The bolder of negotiable paper, payable "without defalcation^" under tb^ 
laws of Pennsylvama, assigned after a coipmlssion of bankruptcy biia 
issued, may come in under the •omroission, allowing all just offsets, ex- 
isting at the tifne/)f the bankniptcy; and which would have been admit- 
ted, if 4he as8%nment liad not been made. 
"The purchaser of a negotiable liote, who becomes so after a commission of 
bankruptcy has iaaucd, may prove under the commission { and he holds the 
note» sulgect to all legal effseti. 

After « commission of bankruptcy had been issued against 
Blight, the plaintiff took an assignment from Murgatroyd of two 
Botes of haBcT due from the bapkrupt. He applied to Blight} 
infonnipg him of thp assignment^ and desiring to know what 
^idend of his estate would be made ; and was informed it^ 
, troi^ld pay ten shillings in the pound, without mentioning any 
offiiets existing against the notes. Thb plaintiff put in his claint> 
imder the commission, and demanded a trial by jury, whictk was 
directed by the commissioners ; and an agreetnent was entered 
inito to tryf on a feigned issue in this Court, the questions-T-l&t, 
whetHer the plaintiff could come in under the^commission I and 
tf he CQuldv ^ly? ir he was bound tq admit ofil^etts against the 
potes. If decided h| Xhe affirmative, the settlement to be re* 
ferred to arbitrators. The notes were made payable *< without 
defalcation" and were protested for pon ^payment. 

Rawle, for the defendants, inwted, that the notes of a bank- 
rupt, afteir a commission issued, are not AOg^-iabfo. Sdly . That 
the notes in this case having been protested, the asaigiies.tiQd^ 
them liable to offsets, or ai^ equity which ejusud betirtai 
Blight and Murgatroyd. That a dsbior of the bfokrufH ctamBft 
after. a|i Kt of bankniplcy purchste up'dohts due from.taK^ 




APiOL TERM, l8Gi3. « 

hiiAiMpfe to «A«t tkil». 4 T. Rap. 7\4. 6 T. Rep. S7. 2 
^twwgf, iTT< The reiwoii of tliese eanes ftppMe» to this; 
. B9im, it^ $h^ ^^tmtiSj oontcof^ried the fint point) i^poa the 
giimiiti tbil thort k aolhiaK h» tho Bwktupt Law which-farbids 

of a diebt duo &otk tho haafarupt, aftor thccom- 
Th«t if the pbintiff cou&l net cotte in under the 
mmmiwtmkf it voold put it in the power of an ill«<iatuvoii cce* 
ditor of the hankmpt lo haraM himt by aeaigpiBg oTer chdmt 
against him after the commission ipsned; for where the claim 
could not be proved under the commission) the certificate does 
90t bar it. * 

On the second pMnt) he^ insisted^ that he was not obliged to 
admit oi&ete) because the Act of Asasmbty of Peansghrania) off 
37th FohrQary, 1797, 4 vol. 103, dssitfes tint ■atea pafable 
wUk^ui disfiilcatwn shall not be li^^ to eibets.ov oflBl^. 
' Cases cited by Mn Haro—i Ath. 73. 3 Wife. 1S5. Ciillen*s 
Bank. LaW) 99, lOD. Evansr^^. Co* Bank. Law, 1». 3 T. 
Rep. 90. 3 Dall. Rep. 396^ 7 T. Rep. 499. 3 Fohhb ISO. Au»* 
struther, 427. -•>-'' 

Wj^HLfmiW^ JL The first qoestisn iwss he^40iKidsd 

an prmciple) as thm Bmksaqpt Lanr*is sient upoft Ihis subjscty 

neither permitting aorforbhtdiDg'^ie asfignment of nates dme 

fiFsm 4he banhanpt) ftfter a caaiiiittion has issoed against him. 

kwouldvb^ mteasonahfte <hat aneh sn asstgnea shoiild not he 

sUow^ to prove under the onmmlnisiiy timp the debt wnnld" 

mast eertatnljr be barred bf thm eettjfiiff mS| being « d^^t 4nr or 

ike4ime qfthe hmnkru/iteyj and snah sr one as wigte havnheeh 

proved under the coainussion. il can produce iafury to no 

persott) aa it can mahe no diifciPKa to the as t i g nee a, ]rhe« 

ther the debt be proved a^ due to A. or to his aisigntisf an* 

sa Aej ong^t not l^ bein^nred, aa thef ought Mt to deiave a 

^mMJkt .from this ehaaige) no| of the doht, hue afi the ci s di i er . 

It will ,be <perc^ed «Uuit the very principle upon whicif this 

first >eint^is doddedy decides the second, it sipuck me, at first. 






■I la 

Huiflpltt^JB I0« 

lii^t if tife {ilamtiff's coudKl'weh^rigl^^ili U> tlie fint ^ifttHmri, 
they nhist to wrofifg ttfon thb deccmd. If by tkte mwgMiiHit 
tke Mn^oee wooM tAt the diAfi. disct to gt i c^ ^flwbit #r of 
aojr e^lty attached to k inrtlie h«ii of^ tM^i^itmMM 
famish a deeisiv^ ohiiptidn te the tight cf tftie*aMigiiB»«lBr yM^f» 
imder the conipiMloav It%i tniOy. ^Mtiti generftl^ a neifMMMe 
i»aU€mft> «t ptates to a lair teAafide assigHAei di0chl(r|jCt#ef 
any ^jqutey attcched :to it-, of wfakh the ^gigatt h^ tidt notlae; 
for haThyg' paid value for k, his equity is equal le that of yift 
debtor, aiid he has the law in hai favour. If payments have 
been made, or mutual demands exist between the parties, aM 
Hie^ do liot aecompany the instmmeatj a fob purchaser ought 
tot t» bef aa^vr^ by Uie oau^ion of the parties to eodditt such 
0ibei%favd tlai*"M gi^re taHlce of thm existence; The assigi- 
ment th er afo » e pt0^ a rlg^^ to the entire sum appeanng due 
•n tHe &CO ef the inistrum'ent^ Bbt the Bankrupt Law declares, 
that wMoire i»utu<Al debts' have existed between the babkmpt 
a^d mf other prison, %t any time before he became a bankrupt^ 
no more shall be pud than the balance due after aA adjustment 
9f the accounls. By fc^rce then of this faw, a creditor oC the 
haM««pl'4ui aaiiipi and the Msifillee ian putchaae, lio ittore 
tha» tiw hiiaace due Jwwn- the hartmipt afoor idlcredita are 

' Tfas ruAa therefore *)ay heMddoifii to meet Uib present 
caaey that where a creditor of the hMikmpt aaeigst ar Aegotiahle 
pipof, or one pa^idil^ ^ iriMMiat ^foleetkm^^ under the hiwa o£ 
the S«ate, rfter» eoi)ramin|aBH has issiped agmat tht debtor; and 
the Astigaee iMiy eonw lei uaadee^e bommission, but he must 
allow all fttst offaete exiatinip at the time the debtsor beaiUMP- 
banknuityaiwi which muat ha»#befen adaatoed if theaB•^slllMnt 
ha4not hti^ made. 

n» lAcry /mmd a^cotdii^ to tk^ charge. R^fia^eM mtr^ 
apifi^imt^d t6 *M$h ike mcounu. 


AViR» TWfiM, L90S. 


a, .t 

fix {Mite JoKpwwu 



if «fiF€tB and sent befoi^ the f^nnd jqiy on the pait of the United States* 
i»|M)til|ed U) l}|& pv4 b^ the Uofjti^dl St^l^et ii^M Ktfciwi^nr c oa tftf^^^iA 

In the case of the United States vs. Coalter apd anothei*! who, 
were indicted this term for murder cpinmi^ted on the high s^f^s, 
and acquitted ; it appeared that a Mr. Johnson, who had been 
recognised lo appear as a. witness for this dpfi^ndants, had iMfvef- 
theiess bpen marked on the indictment) a^d .sept up tp thf 
grand jury by the district attorney. It was now iQo?e4 thc^t t)if^ 
marshal should pay him for his attendancei ^ if he ^^ bfen 
recognised on tbe part of the United States. 

The district attorney opposecl the motion, and decl^rje4 thgti 
he was not sent up as a wituess ou ihe part of the Unit'efl St$^ti»it 
but from a wish, on his part, thi^^ th^ jury shq^}^ he^f 1^ W|4) 
Xhp witnesses fof , as agi^st the prisotiers. 

WASHIJ^G TOJV:, J.' X harfe np doubt but that' Johnson waa 
sent to the graad jury from the best motives oi^ tke pu!^ of the 
attorney, but I camiot say that I approve' of the prtiotice, ami 
would not have pernutted it, had the subject been mentip|ie^ 
in Cofirt. As ti^e indictment| when found, ainounta to Qothii|g 
more than caliin^ upon the accused to answer^ it is highly inv*- 
proper that the. grand jury in their r^ti|(^mc»t, and without the 
legid a|d of the Court as to whaet is and what i^ not proper tes- 
timony, should in fact decide the eausfi^ which they do if they 
through mistake of the law should i^ find t)ie bill. 

The aecused having the benefit of a speedy, candid, and open 
trial, under the directioB of the Court, where all h^ witnesses 
wtp heard ; can suffer no inconvenience from this rul^ If tl^^re- 
foM the attorney ^hote to make use of the defendant's witness, 
fuid marfced him on the indictment as a witn^ for the prose- 
, ciiiion, Ue must be paid by the United States. 



Hie Schooner Phoebe «». Digoiun. 


fe oMt the owner of a vend to the foffeiture of the wages of a seamntiy 
abaeotii)^ htandf fiRm the veead. aore thaa fixriy -dgfat bouis, the ealiy 
of the ahaence of the seaman must be made on the log-book« on the dmy 
on wldch the sekman so absented himself. 

JLHIS wto an appeal from a sentence of the District Court, 
decreeing^ to the appellee his wages as a seaman on board said 
aebooner, on a voyage from Philadelphia to Jamaica, and back. 
The answer of the owners and captain admitted, that the libel- 
lant had entered as a mariner for that voyage ; but insisted that 
lie had, whilst at Jamaica, absented himself from the vessel, 
urtlhoat the consent and against the will of the captain, for'four 
daysy, which, undet* the Act of Congress, amounted to a for-^ 
feiture of his wages up to the time of such absence. The sen- 
tence of, the I)^t;rict Court was given upon the libel and answer. 


J9y the Court: Absence for more than forty-eight hours from 
the vessel) without leave of the master or officer commanding 
on board, is a forfeiture of all the wages due to that time ; pfo« 
vided the officer having charge of the log book, shall make an 
entry therein of the name of such seaman, on the day on which 
he shall so absent himself. The reason of this is obvious ; if no 
such entry be made, it repels any presumption that such con- 
sent took place, or that the forfeiture was intended to be waived. 

If no such entry be made, it is to be presumed that the ab.^ 
sence was not injurious, and was not objected to. As it does not 
appear 10 this cas6 any such entry was made, the appellee is* 
entitled to his wages, and therefore, 

Let the sentence be affirmed with costs. 

.. •• 


*• 1. 



AMBK. TERM) 1801 


Ito ttilp LaTfaiift f». BKtday, 



TftS 8ttl» iUkTMlA ««• BABOfcJtt. 

Tontke a hypotheoMtton b«tfc cmnlM ^ tilt J^>^<f » 

be shown. 
If one of the owners of the veflsel reside at ^e port wliere the bond b gtren. 

it is not good. * ' * 

'Aie'con^^nee of ayeflset » bound to adiranceihe freight^ fti* tte «ppl)f ^ 

the necessities of the vagr«|pe, to bo so K^ppBed bj tiie m as t s ^ . 
liiiae the fidgfat is in the hands of the r piirigniii ^ he.»aiinip< <drM»Hilwwy 

to the mister on marine imenestt ib4pi» he hat 1)iai» dMtotod ly |N cw 
, agpoe to appropriate the freight to sassier p«p«K. 

7 HIS was 101 appeal fipom a Matcnce of the District Courts 
in favour of the af^dlees, the obligees^ ih a bottomry bond 
f gainst the ship LAvinia; the property of the aaalgnees of Peter 
Illigh^y a bsAknipt. The case is stated in the ^imiii of the 
Court. • . 

' Wjf BHi^TGT^^ J. Tfce i ii aiu i ai ftcts In this caie apfcv 
to'be OS fiAtows: Tlw Lffcia, tMumMidt^ by capdriai ¥kaTayy 
slBle^ fiom' PhAadelphfa tiy LoB^kia) about the 10tk^(tf JaB«H 
Iry raoo, wtth a earg6 defa sl ^piei -tm tL H. WmHtun^ th^eaf^ 
reapoBdent of 'Peter Bigirt:» Bat& ship Mid cargo belobgwl W 
■light, idthough to protect themi^giteflt Ma utg ia is la Bag- 
lbi4 '^^ made a feigned sale of^ ilie ddp t» Mr: S«M» <me dl 
Ms cteAs, sometime previiAia to W saiinf^; and tike etoifOj by 
the bOI of lafing, was^ to h^ deiiverei to the efr4er of Retd,.upon 
Ha paying fivight, as fter charter fiartf. ■ . . 

The irhole was a edotrinrBce: tfiere iraa ia reality no ekarler 
party;: tfie sale td Keid* was a mersprelfence to coTer the ship 
ften atiatfaiheiita hf BBgfiff^ ofedKtors; and tKe cargo was dUe 
pvopefty flff^Bltghf . The nature «f tflia transactlmt i^ Mtf Si%^ 

G " 



The SMp Lavnift fw. P M qiiy . 

closed in a confidential letter fitm BUgHt to F«Hlfa«tt,of tbe 
Ist of January 1800. But to give a cMoar to tya ^Hmf of 4e- 
ceptkMRy a letter was written on the same. I4t e( iMwuryy by 
Blight, to Fentham, informing hia^ of the teereat of ilehl*in 
the cargo, and ln|KMiucing him lo Vm^bam, ma wm 
panied by another letter from*tleld to Fenthaoiy gi t ip i g 
tMfff fespectftg llNr dkl|>oii^0ii'ef tUlf'eargo* 
*1^apla!ti' 1^<:aray wi^ conK^^Mfcd i^ p«t into VtymoMki INMh 
whence he went by.)attd to London; and^on the 8th of f ebc&acf^ 
he delivered to F^thani, (who had previously been dedu^ a 
haiikciiyt») the letters of the 1st of JanuM^ from Blight aoijl 
Reid. Tho toatenta tidT these letters were not at that time maiu 
faiowtr by P emi iat n to the-^p^Uees, ^(his dasigBeea) but he M* 
fefsnM fliefn tint taft <M^o iHofifd'be^ delivered to themif whiah 
being at fidit refused, a in€iftenger was despatched by the com- 
tthssinners to take possession of the ship and cargo, which m^ 
done. Finally, the captain consSented to deliver the ca^g^ 
the iis^ghees, upon certain terms stipulated in an agreeanent 
signed by the captain and the assignees, (the libellants,) on Yh'e 
f <^th ofFebroary. l*hese term^ were ; that the libellanta rfioult 
appfy the netl proeeeds of tilt c^f^, after paying fiMs^i^, caiH* 
^tMna, ap^ienaea of tTiliiin aiwfc harping ffWfees kw, and 4iit- 
amn^theaaid capgo» dwitiag^ind aH. i gth < ir Qkmge^M^ Wfffmt^ 
aahtlpig to Up a^d cargo; to«mi4i. aa|liifiM6tbi» of haX4^^ ^jOn^ 
engagwnents a«^ptfld»>cx)«ttMbad».ov made. l^.Fe&tham, mf 
aaonvnt of Paler Btif hu Tko* latlsr p«t^itUa agreeaiont 
a^ana to lia«e homi intended to conform to the diractiona «if 
Mn. BlighMcw^M^ed >l» hia kttava to Mr. Fenthaaa^ m yf^i^^ 
1)0 oadawthe pupceads of tjie carpi to be applied ^nttmd&i* 
. 4^999 ^ fMham's en^^^ftmentsiron his, Btigbt's, a^onuft.. >. 
Ci^tain Viearay having beiwaan the time -^ tBB^moB^ jmm 
thU agreement and 4e I9th of M^^ inaurtod 4d)ta te tgie 
amount 4>P iS 1430 ^. 6d. lor rcpmra nind»to ttke^Laiw^fm 
tim Q^tfiU of bee ramm voyagt, for^repatrs.made.a^ Flj^oirth 
predmia to her ^ London,>r the wa9na4M#i^ 



ArillL TERM, 1803. H 

■*■— ■ 

Mp Lavimii »• Birclay. 


pOfft^«fiidi jM^taMMOit <I^MeritMMeotal expensas; «p|>l<ed to 
tiift wfftitmi^ fci ImMiily to.^lsetoff^ tte«e debts, vko cMweatpi 

acuiifay fir tfie«je|wyqnot ef the ii iif j by.fnf «f hy 
tr 0f '^Ule veiael and feeif ht, a bottooiiy bead ««b a^' 
iit»ih|ftli| extdaioA on €b^6M «f May bf .captMtt VioaM^difi* 
fcrktg from the usual fanaof* aiwilar iimmanamain ne otiMiv 
expect tban in its tecital, vrhkob ^M^ <^tlMft»tba eafrtam ImA 
iocttrred stiadry exf^anaea, and 4iad ilaiiliiiiii iJ^i-jaaifD lb ita 
aaaigBees of R. U. ^etttham, ipfthout bal|i9;«ble to reewrer mf 
•part of the pfooaeda oC't^ aahi cargo, er aay freight fcr^th^ 
aamet and that the obfigees bad adyanoed hin mmmf te 
defi^ayaig x^0^e expeaaea,*' lee. . ' » , 

On the same agraamiam tUMraigaad h|r4lia atliriiaa 
ibr the appelleea, refenittg* t* the tKaHMurf 4aarii hyi iriiUh ha 
agreed on tfa^partof the^iyfwilir ii^fcafemcaaea leaesum»^Min 
that mentioaed in the botmaatf haad thanld be paid to the agbpi 
pdleea, in London, at any tiiii^iidthkii ais months froin the "date 
thereof, that the aaa^ ahottlA. be acceplodr in Hen. af the said 
bDttoiBrjr debtt ^ 

The»ima aB*icd aafc <»ghihKMphaa» the pafti mntia aia ^ 
la th& bod»Qify baadt^avd aftar Iha day^ pofaaaat ati pi ^t i ^ 
iftifae homA hiid piiatd t- \mt iwitaavtha wht nBOQtha«.niantiQM4 
i»thfra|imaiii«hl> thhriftaft.WM Had, to have aalMhatienof thf 
d^t duo hf 4|iaNbend. • s • 

The frm poitot made^hitheawM waailfcat the llt»el vfU pv% 
JBitvrftlytiJed, aa thae^iaiar al the ship haA aki nMtha t^-dia^ 
ilhhrge Ue ship from the Hapi cMatad fay the jbolMnnry beiidi 
i^Mi paying a aaialler aiim« Dooft^ealag the agvaeni^atJui \b^ 
iifhs ef a dalbaaance to'tbO' baodt i> inltnaaad' to- the bar aa epa^ 
w»mk4fi auppwt of-tliii| .o fa iee t i 6%^Mtaat>» ■ ■a aaa a.of tWa ffr» 
jitiatt conki duly opaaat<aaa daiay the BwrHaiiiii I .aaaonmiaBd^ 
«d^.ia iiie^anata ta a^alse aMae aceoiwiedaitoi » tm.Mm 
irii%ithiigh ha»heen dooa vfm te&am ftt^kat th»<abjeeciaii aa 



The Mtp L&viiya «v. 


XIm dcpBDOo Upon the' 
kM b^ea hmkIi ptti w d to tiwi 
a«9hc %» tovc ftifrwactd ftma dm p ipe— d i ofi tko oitgoy tli» 
Mm «««WMry tm diadiairgiBg tlie <dftMb kteumd kff itm^mfn 
tM «» ft««oiinfr-of the tfaipi of at any mte, so iiraribo»A4 
iP i ifc l wi ol Itooargp would lukf«v«ommled tO) If tii« oMfi l«A 
0BrgD Iwd holNi||nd t» dMfe>ciifc>pewoB»>. On thtt olb«r side tt 
oo ntfMd o ij %hot tiie tf p ^ M ttw h>ye>|yrfbrmed every aitkte 
Ipf li«fli4N HbB agreemioot of the* 40^ of Febfiu«rf. 
TlMt tlMy have paJdM^-tlie dutiea and eacpenses attending tho 
4e Uftf y of the eargo, and have applied «he reaidlie of the o^t 
pmoeiiia ef 4iie cstfgo tn the discharge of Fentham's engage- 
Irenes far BBghly and that aa the ship and carge belonged tt^ 
^^ersen, MriMflit iMia4liAf and conseqoendy nodwig 

e» that aeeiunt eaoAd'taM been demanded by the capt»n. 

^he qttcaiidh i% faittpe-tto nfpNHam a rig^t to tedever tkr 
dtobt secured hf the beiioifcfty bond, under all the ckeumstMi-' 
iea tf thia eaae? The tight of « captain to hypo&ecate liia 
diip fir adettiees made In a foreign poit, to enable him to pro* 
eecute his vofage, is essential to oonaneroe. But to give vaU- 
dkf to aiMira vontnict aa againat dte-ahlp^ th& aecessltf of nds- 
lig mom&f hi this wa)r« tttd-^ar Hie frntpmrn ef .the vofRi^ 
ihould be made ckariy te iipipe»i> M thewfaw one ef .^he own* 
irs reside it die poit whereHie eapc n e a ia*iric«vved^ the powev 
of the eaptain fo raise money in thia way is'^net pevndiitBd, ^bn^ 
am&uefa as the neoemi^ does ant eniat. In Mie manner Uie 
tj e WMg^ e e of the'eavge at the pent of delivery, is bound ^»mi^ 
vanee to the ship ewnea, ( whoae agent the caption is,) the iceii^ 
4ne onthecergo; vhtA ttMcaptafaiGan em^y indeirufkis 
Hie^.eapenees ncc e n ae y to-pr o ae e u l i ng hia ^»yage ; and there* 
fate tlMi oentigeee'CMne% wMl0b poases«ed of this Hand, reMdn 
tito seme, mA hmMm^t^ esmet with n neir debt at> 
tanatr 'Fhia vute ha in the inaaignBi .waf adaatit of.eaEceptBaaftf* 
and 4fen preiint enar -eeeaaa to faanish one, imiependent of- tlm 
fecial i^eemtnt ef the Ittk of February. If FentiMy»r4«»« 

APmLVULMftmn. M 

ndt MMI^'tmi m^am^ liaiiiPMB Mtcured bf kin, 1m oaislit 
Mrtftere spiMii tiie%lR>le ptocMdsfrf tte cargo to tiM»4i»% 
iteiie;e of.lito o«ni «ii|pftg«iaepti, mteved itHONLW mftmm ^ 

ilf» M^ ai»<i«rilfed ittsimeiiOM of j^ 
•■f <ff Itgyember md PimiiiinllMi% diretiag hit *aii» <p^ jUar 
pitKseiit of dia cargo. I 4m m&tw$j that^PMtlNteiRilM to al^ 
mimdtf,\ma»d hy titewi iMiaiMtlQOh that lMiari|giii.Mt ktivat 
afpHed a part of ^HHMolteib lo Hkb ijialwrfp aftto-aatpaMaia 
IttGuiMil IB f t p i i <l »g a i rf itf i ni a g ^pa nMy i i, hi* li»r>atwai Tof^ 
age ; but I am of epWon tikat he fma midar no ohMgHiaii to dot 
•o ; and cofiaequeinly ho might hMr«4qppiiod tl^ whole |»paaada» 
m diracted bf Bltghs, aod h«K% i d N aa u a d bia.«aim taanny te 
Ute eKpeasea oa the secufi^^f Mb aii^ 

The aaMgieeaof^Fegth— hiiilag ih»ihni,petaaaahyi rftte 

cttrgo itnder a special agreeaacitt wiUi li|» eapMi% the^ qmial fc in 

aa to tbmm imiat depend u|W ihp JaJinn^a^diirir eonatvuetlm 

if .thtet -agfreemeiit* If that B^aaaiiiil4iit in tiie haada ef the 

appelteea safRcieBl Aiada to oepar thel^ adraae^s iati»eapiaiiit' 

tey had no rIgiiiYo aAraooe ii iii i -teeney upon 'flBarioeiBieieiti 

UH not dispatad h«t thar^lfee ptoc^a rf. t h #i ea \^ have bee9 

jBapgaad of in the MnMiratipateted in 4bt agaaaaaeot;! emaeii^ 

thelre^lit, fiMah it is contended ought to hare toen appfe^ 

Wthe dkaharge ^ tlie a9ipeaAca.fe^ which tUs head was ^ven. 

k. k-adMMd h^c^^w i|ipiaaiir'a nsiihaainhsi M^Kight ia due 

where the owflter ef1h»aidp ik ahK> owfM" ef the eargo } ^bm i* 

M^idsted^Oia*^ the iii^ ImbIh of this eenttgaa- was ^ 

fltnie aomt under the nam#'Of fveight) as th^ahip would havw 

e«med» if in tmtb ^baoit paHcawhud owned ship andcaai^ 

Wllb rtapeet to tbe«M:t% iwipertiai. im^^^mttoi the cip^ 

dMiwis conaidsvaMe.ehaBgfiitpw It H^^^gwd^itoa th^^appaJIsaa 

hid at ene timf F^psaa to4i^i»ae4hatMtgiit.waaewrAer ef the 

ship; beaattta it lovpsoeed hy&ltantiMiiv4iMt4lia3rted.Tee«Mpad 

sH IKghit's letseta to him^'diMd In Mniesnher ai»d Decan*^ 

Md^aadhad pursu»nl to faistraati<paonnlni<iii <iw#C>i|riB» 

54 MNMStl^VAllIA,- 


The sup Lavinia «t. 


^il^cud mmwrnnce otk the Mf^^ Ual- 

M^pMin, tlMt pvmotts Co;the 10|2iof^Fe)>nil»f IdOd, t|w i|i- 
p«lf48» ««» MMBied by FfiDtlHiiii, tinBt llie cei^, d^tom^ statu 
e4 in Uw bil^^f Jading to belimg to Retd, wa? Infiict the pft>» 
poitp of MiglK. These circamrtancea seem etrcui^ t«^«hqf«v 
UMit «tai4lii49peUees agroed oathe lOth of FehnMiy to mr 
eepttkeimgkt out of the paypnents on account of V&k$jtmm\ 
sttKttg— snU |br Blight, they kn^w that/^tnctly and tech^cdly 
tfwtfthinf I <■»■ imiffiii 4mM he dne, mmI thet the only way to 
dteliafi^ tHem ftMfr a mectttaied deception vpon the captaun 
ia to caaatnie the contact as oobtended Ibr hy the appi^iant'd 
Mm0bI^ fiilsily appearkig upon the face of the bill of lading ia 
slipiMfaif rAar/«r ftariys tlias hoUany 
out 4^ idea* that whoaivar Ikm iiaal*ew&er of the cargo might* 
ba^ he w9m awwpafMn la aiign nlhii^perapn as sl^p owner far 
thecanfijageof the ira^gi. 

. The mystery m which i haaa^ana actiops are envdepedi will 
aet penait me lo a<y ^aJth uimfijijace, that the i^pelle^ eit^joi^ 
did or didnot know the- real tnnh'of the eaae« If they wem 
aeqaaimed with it^ they were aManipiitag' So fcactiae a deccfn-^ 
Man open^ 1^ ea^tain^ % whish tta^c oagjht net to derire an 
tdmMage. > Mmtt as iiwad ds not to he ppjiimrrl, I amnotpae- 
parod to dashia that any was meitoated m thia^caaa> 

A diadesam^f the cooMei^ial lettiv frQiir»Blight« af the tat 
ni January, i«a«M.«t. 0B«a haveclaamd wp all^the de ah t a whicj^ 
huag upon this taaaaaaaion ; ht th^ewnaitfti eg that letter were 
■at eos»nitin>oatoAt»thea|^»allaaa tiatH after the agreemem^ of 
the lOih of FehKiaiy94aid prier to Ae idvances made by them 
ta^e cajiUHgi. H wea lji 4 iB a m that this diaeoVery prodnced an 
#aplanarion.df the agraemat ef|to loth of February, aad that , 
tte tmptainp ahaadeamg hh claim ta. feright, where in iMili^r 
name was dwe, canaitattd..ta raise the aaaney he raQgirsd,' hf 
kfipothecatigg the ship. Wivibsr the e^^tarnhMw* mite 
lOthdT Febniary, that the.afa^ a»d cargo both bstodgad to . 
BBght, iam»t nrtwahii tlmegfc it ia atroni^y to be inferred* H 

APIO. TERM, 1803. 



Th6 8inp Lftyinia «t. Barclay. 

lie did qdti It Hfoiild seen from, tlie recital in the botUMnrj 
htmdf that after diacoTeiiAg tliie to be the fiict^ he was satisfied, 
tiiat the ghii^lion of tb^ appelleee to pay freii^ht w«S4it an end. 
The recitri does not slate that the appellees had r^uwed to pay 
the frei^hj^i Imt that the captain was unable tQ recover Ui ioa- 
ptyai^ Ihj^reby a wsmt of rifht to recover it, ssjioe it ,does tkit 
^piiear.that any attempt had )>eiipi made to coerce the pa^mfBt* 
. Itis contended by Ihecovnsd for the appellant, that the costs 
<^ the vep^ inndn at Blynaouth, and ef Ihi oiiinanfi wagea 
nnd provisions, on§bl al any rate to b^ deducted from this bMAd, 
because they were the expenses of deliveripg the cargo, which 
' the appellees were bound to pay. It by no means appears that 
.the cost of the repairs made at Plymouth is to be xonsiderJei), 
m in expense attending the ddiif^ of the cargo, because it is 
sot pretended even in tiieeimFiBrl^^Jibi^tbi^ they were 
necessary to enable theshjp to p reo ee d ' imfm, K^anoHfJ^ to 
LondiMi; aa the captain was diftat^by »H|^t to kaive^ the ship 
cepaired Ixftre her rejinxiit it 1^ nsam yrotn^le that tluoie pnt^ 
«l|ion her 9X that pcurt metre dentin j^Mscution of tboe^ iaatroc- 
tioiia, and witha view to the return voynge. As tie the aeair 
Yuen's waipM wik fpaviipom, the way to ii«M#f«t«n4'irhethev 
thff>«9Bfe mtrni^lD ^sMndnded under jwspanaes^dniivwnf 
%^.^9«]S%- Vi^At ^ anppoied that the height had bfosn paid-^ 
ItwooUtUi^ b«chMrtbiJ^mBWMi9'siiagesand peovisions could 
Wt h«l« |||qni4<ilfcyid , bnqausfS .th€v<ai|m<» isrnU have been 
conclusive ^km^^km^mjffnmeiimM^ che^gnebin to the freigM 
«ndtobepi|d.Otttiyrk. Tbeee^expneskNn^ were only in^ndnd 
H^ ceofisidheiid wherfipget lightemge, end suA pett^ ehaiges^ 

Sensmee ii^rmed. 

■i I 



Hunt fit. Hunt 



Hurst vf, Hur^t* 

In what cMCfl Courts wiU intetfere^ and s^ aside an awai^ of 

tal FennBylraiua, It ik not necessary lbftt« mitteke by the reibN^ei-'n^lMrik 

ariftVyAoidd i9yp€aroii4iefitoe«r^hea«aH»to JnditfelSi^CMil lo 

la such an CTiminatioo into aii spaid, no new wyimfW.Jiii 1^ adwyttftd. 
Whedier the debt of one partner, in a joint concern widi othen^ not jfi , 

elosed, can be set off in aa action by one x>artner against the oHiierf • 
The nature of set off. ' 

ThI& WM « aMCloft «iaA« to Nt «tde «ft tt«»rd« *¥Im dM 

On tbe MM «Hr ^ M«f HM, io agreedmH wt»*€fliimt 
into between OVutHr Stm the pMattT, and TtelbCiqp tiNmt 
the defwntaftt, wlildi ve^AiKft, tiMl €▼• MNkm» wefetl^etf dfepeAil^ 
In^ betwaeii tf^m^ «Mi wHch are mere |iiiHfe«hily JaaMtiBdl 
ftsfeOowas l.-'AiivctfKfteiitMcvie lartMSlq^rfitte'Co^^ 

flUt; 9*^ All aeiaofi ef aei. ft. la the 9iipfeiiieC#qit'^Finin|^> . 
Tinia, ip wUeb CJiariee ttf plttoiig, «d late Morfliv ttteWhh 
trktor of Joba-ltoMf li-4eftiidant $ hi wMUk-^Kmdmf^iS^m 
Mmelf to be imeraMi aa aaigmr^d- Ml ifc tf gUrtb «f the aiM 
wiTeA. 3. A.if acffen of ftlse hiipiflMufiicutf blM|^«ll^ TiMi^ 
thy aglinat Chai4to^ h fbe Mi^er'a CaWt tS the. dlf dP-We«^ 
Tofrtc. 4. A; MHn chaiKerf ^peNfiiig m the Circidt CSemt 
of i>led^ork, wherein Tinieihy ia cenpiaiaaatf lOid Chnattaitfri 
oth^ra are defendaata^ Far the aettleaieiit of these eomvcMPer^ 
8iea» the m^tiea rauliiallf agree tie diacontlMie the lAMbe fttitai 
in which they are reapafetivei^ plaiBtifik ; aueh djacqntithwrncct 
however not to operate aa releaaea of the aeveral demands in* 
volved in thoae autia* For the adjuatment of three ef Ihot^i 

• V 




^ *" V* '• APRIL TERM, 1«03. 57 

^ -^ * m 

' ^ . , Huist vs. Hurst 

■ * ■■■ ■ ■ ■■ , ■■■■■ I II I ■ 

' ttitSi^dke parties agree each to lurnish the other with their 

tfccountoy to enable them to effect, an amicable settlement df 

^ their diSerences ; and in case this could not he effected, they 


«^ agree to submit their differences to. arbitrators to be appointed 

^bf tffs Court, such arbitrators Ih matters of law to be guided 

. . bf ikt ophuoBs of certain law characters napned by the parties. 

t ^ %n the 90Ch September 1801, an amicable action was dock* 

' • ^ed in this Court, wherein Charles Hurst is plaintiff and Timo- 

^ ^ ^fty defendant ; and by a rule of Conn, the sat&e was referred 

'» to three persons, to heair and determine the .matter in difference 

• between the parties, which are recited in the agrei^ment of llie 

5d of May 1801, and according thereto. • 

^ . -'Hie referees have made their award, by which they report a 

^ hl^Bnce due on the acirefacUiB suit trom Chiries to Timothy, ill 

* r%iit of Baron, of 1 3,085 .doUihs, 8r ctttits. That this balance 
, il^ exclusive of the real estate, goods and chattels of the saM 

fearoli, in the^posseasioir of Charles Hurst, and whicli the re- 
^^sees ttwald to be asidgned and giren up to Timothy on de- 

In the &lse imprisonment caEdse, they award to Timothy 
it6 dollars, 67 cents; 

m tlk« chancery suit, the sum of 3,507 dollsri is stated to be 
lie frcnm Ch«rtes to Thnothy, which is tfwarded to the latter; 
tod the estate, which had been conveyed hj Timolliy to Charles 

* * WtttSP^ defHia purposes, yet remaiftiflg AsoM, h awarded 

to \it PC-conveyed» * 

• As ta the action on the e«ie, Charies vt^ Timothy, the tOe- 

* ' fe<^ say, that « upon the settlemem of ^abeodhts to the f st of 

llfEy 1801, cdfaiprehendifig'the sums above soMftioned, they find 
ttM sum of 15,171 ddllars, 711 cmts, Is tho balance due from 

* Chaxles to Timothy.** '* ' 

It !s agreed that the fdkk aetSon mdnfioned in the recital to 
Ae a^jreement, has been settled, and is not involved In the pre- 
aebt dhjtute. It is also clear, tliat in the adtibn on th^ case by 
Cbtties v«. TimQthy, a deduction is made firbm the aggregate 

/ • ? H 

« • 

• . 

• • 


• • 


PrtmSYLVAlrfiA, ,- 


Hurst f». HutBt 


amount of the three siiniB found due*to Yimij^Y>.^ h 

lars, 84 eeots ; which gives the i^maoBt of the ainnid M 

of Timothy in that suit, although it is informallj 

fpport. This will appear by deducting the 15,171 doQtifg^^^ 

iStmXSi irom the aggregate amount of the thrive sums Ibofllr^il^ 

to Timothy. . *;^ * 

filj^oeptions to this report having been filed within tlM^piqp^^#- 
time, a motion is now made in behalf of Chariea Hofvt |c(»ipi^,'* 
aside this a^ard^ for the following reasoMi' Ut. Thai jviia^l^ . 
tion is'not laid in the declaration. 2d. That the retirees 
^ilty of a mistake in refusing to adidit sundry credits* 
are specially enumerated^ to which Charles was entitled*^ 4pi* 
Thntthe award i$ unoertain. 4th. That damages are aw)^pde4 * 
to Timothy in tbe. aaion ^f aasauit and battery, w)sere«i|«ii|||pt 
jBuit was not sufafnitted* 5th. To^ the award of the 3,607 4t$tpk^ 
on the ohancerjr suit* * ^^ 

To suppdi^t the second and filth exceptions, it««raB ne^essi^ 
for the plaintiffs to go 'm\» the examination of the wiitten;cai|» 
dence upon which the referees decided, in ordes to aukke^qijp 
the title of the'plftifitlff to the credits cjain^d, and to flliow Ufa 
mistake in allowing- the debit mentioned in the fifth eu^ti|g.* 
Upon a hint fingiq^.the Court that tlm attempt to imp^oly an 
award was unusual, the Act of Assembly of this State wai..i|M[i* 
and a decision of the Supreme Court of this State ir%|.att«ig|f ' 
relied upon as q^poiiading the statute* Wiihaut .)|f4% •ftift' * 
4ed that the statute and decision referred 4ift .JbfMl svaKted >4i||^ 
mJA as laid dow» ip thp English jaaseir, the Court j||iQpii|r*tl)ie 
plaintiff to proeeed. with the oj^alnioation, aud det^minedivlf 
look into tbe lepaL^HBiu^le leisure. r^ 

The statute* oif Peiinsflvania^ passed in 1705, dedam^tibil 
where a reference is made undfK* a mkLof Court, the a«|aid[if • 
auch referees bmng,;isadi» aceortiU;^ to the sutgpi^pHani and 
^ppr^v^d by $^ Cajvrf, ^ entecid upon the record; dWI^Inw 
the same effect, as available in law, as a veii|jii|iit. 
. The Cluof ^^ftke of. the Supreme Court, in the i^g^^ ef\ 


• • » 

» I 



^ '•' 

.«A^RIi TERM, 1803. 



- Hurst' t». Hunt 

% ■*■ 


Wili^his iffiXrug, (o) Istya it down ; that where thcrtf ir an ' 
eiroent'iftistttfce In matter of law, or a clear mistake In matter 
offict, the Coftrt cannot approve the award, and ought there** 
^ ' iSn^# ifiet it aside. ' » . 

•if} the ease of Kunckle and Knnckfe^ (d) in the Common Fil^fl 

• df rttibwdUlihia, the President narrowed very much the rOle laid 
,dt#D in the ahovtf case; by saying, that th^ Courts never enter 
^fltQ me merits of the case decided by tb^ refere^fs, or set aside 
•their report, hut forinisbehaviour,^r whcire 6bjections to it arise 

* onnhe face of llie pirckre^c&igs. This is thr strict rwle in Eng# 
ilnd,^ In the case however of Pringle and M*Clanagan,(r) after- 
wards decidisd in the Common t^leas, the Court set ati^ ft re« 
port, because it appeared that the referees had protseeded upon. 

* •tttfrtaken principle; and (Ms tnistltfce, as I understand the case^ 
^'^ fiQt appear upon the fac% of the aw%i^,< iMit from' the evi- 
dence wrhich was before the referees. Now, there is yery fittle 

• dffierence bcitw«M the priAciple-IK' this cifoe'and ^stt.of Wil* 
%ams and Critig. In both, the Court corrected a mistake in 
point of law which dldliot appear on the "face of the report, 

. btft was made out by a re-ex^sarthmUon of the documents upon 
%lieh the referees bad decided. The error committed in the 
httler ease was HOt by dtelining the ccmsMeratida of a paprtica'^ 

yhnr subject, but by adopting a principle which,* when applied to 
ttiftt subject) led to a coiidusion not warranted ^ the rules of 

. hiw. ^^iie nUe in Bngland is, I think, too rigid to consist with 
sfte spilit of the ^ id this 9«bt»— that contended for at the Iwr 
by the pWfitiff's counsel^ is much too loose. 

It 18 too much to say, that %ecause the Court might net hare 
ilmwii the same caiiclo4o(iBi aft the tMt^m iMKre done, fWftu 
)he evidence, that therefore #ief wftmet aside thehr report. If 
inrbrdir were liable in UUff iMKtfhce^to be opened, and the 
'^estiofis, whkh the VefsR^ethiive decMed, to bis re-tried and 
fe-eoUnt^ed by the Cotm, the utSHty of this itaode of tcflMing: 
«Mititiv«Mes would certaiityiM very queitionable. 

Co) 1 ilalL Rep. (*)«*'' ' (c) Xb. 



'Hunt «. Huttt 

H OH the oUmt handj a wA 'w ew «« be eomUfcmd li^ «^ 
ci«d«t9 he iai>ceebed ; if, utMl^bmtmitgg tlie Wirt ^ 
iwittilrN baye been cofnnftoed, evevf door ie to to 
■tiiffl'^ tbe Couif s erriTuig at tbe kiivwle^ of ttiei |A • « 
Ifieii wfiRb the nfareee decUed, I riiould vtm&g^ indbe * 
Id doubt, whether tl^ nuxk of trial would dqaerperhali^itia ^ 
ascoaHiimiy which ha^ faeen pasied upon k. it artoM hir|p 
mff that whalerer naf b« the degtee of liiguetiaa tamtSttt^^ 
hf the flMttakea of arfaitiatoia, yet theCotut aaaat «fiAoff a^ 
gire ^yaWkf to thoee aiiaiiheaf tfithe t ifc u i i .havr4iaeD ciair ' 
iMMia Ottoufh not to spread Oiefli apoa tho tee tif tha awafil|^ 
;Ufai tfe whol«, Ian perfiBCily satMM^ Outt tha wqni^ m 
Ab a«e haa been proper. That it w^ the duty of the Oo^ ** 
la axamine the accounta aai doaufMnHs kid befott iho vff$^ • 
reee, to see tf thafi had «efuaed lodUow tbe crediu cbuiBad hau^ 
the pUiaML la euhh an c^ainiaa|ieii| no new eyidence rn«>h<r 
adiaiitfeed; aad. ^ deeidiag ufaii that which waa befeKO thbjtf»^\ 
ferees, if thef have drawa ceoohiskma from aaniietiog %vl^ 
dence, difeaeat fifom that whiah my mbkd woafal a^np^e, }| • 
would be impioper; oa that aocowd:, to aaf , tiiat their ccHOchi.*' 
aion is wrong. IC on the other hand, plam fi^ota or piwi^||i^ * 
^law haTe.ban niaiqpprefaeadad^ I eaiUaat aay tfiatlii^ 
proYod oi thehr rapoat ., ^ 

The^inqpal a«aa lapoatad ia frvoaa of Timotbf Hinat, ia 
rSjOaMBaiay t7 ceata, dua from CharUa to John IMm; V . 
lalach IPDjatfty ia eati^ed aa gaaeral mtkgmm-U Ah aalaie af 
. Baron. 'I^,excqptian ja tahan to thia debit; but it ia^wlaiedf 
that Baroa waa MalHed to Chaaiaa Warst in four aav4|aat-awta 
advanced by Mai «i tin porchaainf aad securing certaia liatl< 
it lAich Baron, llorala> Chwlaa, Tfaaothy, and Johiiiioialt 

ijftn intereated aa tenaaaa ia oaaaaMM which creditat- itia 
landod, ougha to be dad aataJ |to> i iha dipbt awarded^ be pai^ 
to ftMa'a aaaigaee. Ihe anawer ta tbeac daqaa ia aiiatlaathj 
At the itee when thla land ogaiiaaif waa i>raied» aa agtag a>fl 
waa saade* bttwaea tfie thrhe Hurata, the original membera ^ 

V ' 


• • • » 

• ••^^ 

^ AMiU/TERM/iaWr ' 

■i r ' ^ ■■ 

Hunt ft. Hunt ^ 

• • 

^ at^iri l»,«i«aM» fU «be nM^iMMsmi^rjr for pamtiPft and 
^ %€citfwnr tfc^ tondiy i» g<>iMM»mtiBm of tbe p«moiiaI i«mrkes ta 
^/cq4*i«d ^ B«ipii and McM% m ^oiBCing out fhm kiub 
*^ ' pnp«t to b» piirchaMd ; mA b^ mi empxtm/atipifiiixkm m th«b 
ilPMtgMlf vbateve/aiumiof saoACf diiAiU be wdmooui b)rtk# 
<Hnfalif ipwtt to be ckei^^ «Ikxi Me leii^#) eed. were tel>e re*' 
^eiiy kyr idtei ef eaj peit of tltfei^ bdbM e diTiiM ihoe^ 
: «plM» lie^wMi die ftetnen. The eredite now eWnie^ bf 
^Cliirles Hnwil^^ee A»BM«i'ft pie#efliMi of MeMMe &Mieow 
.-meoonnt ef Hw piiiew'ilfi|i tod; tad ooiitequiiil|p, eie, by lh#. 
' > eg^temeet^-te te tlwuwif aot ^immmmifp iq BoMi^'ee M^ ea« 
tJtP^e> but to the jojpt tody Hm lamL Tbkfimi^itle 
. t * M^ has always becfi, an*etfU is^mAw the laimiii 
, ctatvol of Chariea Hurst^ who comeqneeUy has within Ua4 

^ > e < rer the ptoper fond hi m\i t t^ m % tosi d wa n ii.. Bnsit is 

said, thatidle afreemflBt donenet djarhaife Ule^asasft or the 
estate of toMi fieesa ihia dfiimit ; ai4 that it k e«lf Intende* , 
4o cooHStjIeie the joint alach ea a* anrfiKaty tod« This con# 
' *UBQetto of the agfeaa«Dnt^ ia initoiiaiWw,, The moat tha 
. fan be cenl<ndid> ia» ^< Bamn eaig^tt be wiade nkhaaately lia.^^ 
bie Uk make feed tjMielhhpnDeeaf and i^ that eaae» it ahovid^ 
aii^paar, tbaa the toiri tot to be ehaiyad. w eeh^oalad^ batoe 
these nrtunres eenM he eeneeiaed Ime e'WMeanel danand* 
' Bnt ddr k aot paMMMlML 

Jn^ ie:fc ^»ie UrtitCih ai to Hmwt Jwe mt reaeived cradit ft^ 

the sttMa now ebtoaA^ Wkh reqieaa tp the first anm el 

9|a93 deltaF8» ^B cea% to Baaon's piupenjiu of ndvanaeai ae 

• aastind-in Engtod„th» asib i aii (whe here^Mn iniaaMBady 

. alto that thay oppoaM HO'lbai apn Urn ienaidaiwrion uianry ef 

a Wfeet of hnAi wofd br^nron aeOtoriea Hiint» in the yeea 

Ifoa. itiatnie»thMiaaandaWdiiponth#oonveyaaceef thaa 

httd, n aeceipt to Aa6(vthe pnidtoe aMWcgr } but thia daae, 

not^onto satistoi«N7 avton^ that to money wfs nctuai^ 

iriod by CfaK^tea Hurst le Barawi bacauaa k is usual loendene 

•. ^ 


• « 


ft • • • 




^ % Hunt tv.' Ilimt* 

« receipt fcrtke ca&iideratimi*iiKmef«i all ^js^*M bergnlA^ 
and uiiie^^ihwogh not a farfliing be, p«ldt««Ml'liCGiy«B A^[^ ^ ^ 
iMUig; attluLt time indebted ^ Cliarles Hemt in* liiilfimpOHMiH^^ 
ef the adTances now daimeiii it is. at least. prob|M» tk^ ^^^ 
Mnrefance Was inteoded as a aatisfection of those dUnu^iuL. 
Mt any nte, I have iiot.8aS«eBt light to say that tli^iMeittei 
Iwre floiade a elear mistake ih refusing to admit tjlese aaeiHtf i' » 
A^ to tiMothercrediuoC5,ir54oUars, 76 catts^MdX^^ 

krs, TT cents, claimed under the second eKoepfieiki^ &ii t ^ ^ 

obviMie thee €iis<ni Hniet, m the acconnt sMed betiree^ H^ 
fUd tihe joinle^UKl, hasoredlt for the wMe 4i£rth«ie fldvancea* > 
afainat tlir iMiiey rai8ed»4»«t of those ftrnd^vand- which issp ' 
atmm^ hfr pliMMd ^ his debit* ' That whieb is so clearly fim^ 
«, cannat be ttatoed wwie clear by argument eM 

• « 



.The ohjeccieo eMd* byChnriea Hotet, in his Qfth ezceptih%. 
to the . tJJHiwaniie of 3,607 delhMf is certainly .ulthdut founder 
den. CfaaiieB Hurs^m^ Tiibothy Hunt united i*^ bend • to 
a Mr. Brownjobo, to indenuoify him against hie reepo^nilMayt 
as surety for them, in « bend to Foliety for money lent tb? lfcem t* 
<|||^ . to enable tb^n to purchase landa for tbevoomi^eiiy. Charie% 
Hnrsty. of coureey wm net only banadTia Vbm to indeauii% 
Bvowniohn, but rfjuiningtbe. poese^tion «ndr msnenenaimti-nf 
ti» jemt & wae bMnd in^equilf te- indemnify km p^rt- 
ner TimAy Hurs^ It b true, that ^ CbarJpedT utet ^gm hmtd * 
hf BtoWM ffl, aad jinisment agaipst liimAimerJsenden44M 
fatisfted.^teuabUgatian to-BroiMqohft mtm tUi rtby »(.«» eikL 
Bu^ the Coul^f <GlMtoefy of the Sto^ of New-Yorb^deter« 
mine^ki^ enitfainet Timoti^ ihet ^row^rtp way fii||il|>d 
. to ntether a«m for Ueanee^pleie jei^innification, and byita . 
deefea^oompeUed Timethy Hnnttp j>«f to. the esaec utong n f 
•eownjeha, the 8um:Doir ^jesMpUa^ This decseetmade l^ 
a Court of compatont |niisdictiQn» k, irould *iil: -beeanfte .^is. 
Genrt to tiiestien, by p<|<lttcii|gisw tojnry to Titootl^ whicli 
Chirlef aught and ought t^ bav^ prevented, and agafaM wM<d|k> 

# » 

■ » 

♦. ^ ^ APML TERM, iMt. * v « 

- 1 

HiUSt i». Hurst 

fBvnSi^ Xisaott^iriUk mptt founiM charge i^piiivit Ch«rl% 

/iTlMilbmth exeeptkd[| is flo totiiHy UDfouaded, that! litt^ 
» . # be^a^il reApectilig it, I pre6uni& ti weuM not hAv# been mmdbf 
^ ^ • 1^ tLe €D^iii4 lor the plaintiff had iMit b^oa maM bf -the e»- 
Are uMue: Q|uase^ait of the agreement which Charlea Hufit 

\^ ^T%e^ thiri.AXoeptioii ia to the miwiiainty ef tiael part of the 

awUd,twjyith«ifbPec4a Charlea Unfat to 4e6r8r Vf to Timotkf ^ 

.\ ^ thg Veai and p niiifcnffeatat<^ which wete of Johft BiPQP» nrnwim^ 

,• • *^4a|p unsold, and now or^lat^y an hia poaaeaaion;'aMl atoethe 

p a< i»a coDvefed by TiiMdiy to Charlea, in tmat. To wWeh '' 
, * • •!} added, an. argument, tlH>ugh it forma no part ^ tiie excep* 
' , % ^^ona* that tboae parta pf .the award are not within tinaanbmBK 

• * * .^n. * A I am perfectly aatiified that theae periaef the award 
* t .• ,are not ^ithbi tbe auboMaaioo, and that the ob|ecii0n appearing 

u^to^ tlfe fite c»rthe award j^y be tal^ advantage of, without 

• - • *an exception being filed, k wAl be onneceaaary to give any opi- 

• nkm* refl^eCtii|g the unc^fttaiiity of it. -^The aubmiaaionis not 
general, of all matters inoantroreray; but id apedal, and coo* 
fined to'the. matteie in dHqMte, in four ^^^liona iben pending 

• ^ between the partiea. The li^t of Tinwithy tp<irecover a debt 
doe fsw CharieaM Baron, in the action of scL/a,f or to be In-^ . 
ddtoanted ngniaat a decree obtained againat him by BrowiH 
j6ii»'8 ezecutera, and fir which bia auit in Gjt^ncery in the 

• Circuit Court o£|iew-Vork waa brought^er to be compenaated 
' in 4amagea for falae impiiaonment (the three auita in wiiicK 

Tiaaotliy wto plaintiff -aiid.wbich were aubmitted) could aerer 
dlre<^y or inoidentally involve the queationa, wheUker Charlea 
Hural> aa trptatee for Tii|iethy>Ai Timothy's own right, or aa 
. aaaignee of Barad, }md'9L light to r#tain those esutea, or waa 
boned to aaaign thMi to TinallMr. The agreement of 1797 can 

\ > 

^ ^-^ 

• • _• • A • 

• • • 





hf m Mr flkeans be pressed Ihte tile serrlee, in order t$ ^lotlte 
4he reftMss with tbe power of dedAig tHeie two polMs. ^n * 


es. those pwDfr of the- repeit we entirely^ ifldep einiiiK oL tlte • 
other pertt of it, th* award, though tkAA to to theia»is gOM us \^ 
4o»ichotl»rp»t.V«>»}i>Hitbee<Mita«l. SIxMHTlM^ .; • 
•Mwnpt to oteeute the parts of the report now detfhrM yoid^s . . « 
Ito Cewt OM pvsveBt hln ftofn procecrihig. * ^. «•**!' 

» K 

• • • 

« • 


" « 

*• • 


Aim. TBKM, 190^ 





Whether, under the provisions of the Act of Con^ss of b&k June i7'94» 
VQgpftn, remaimng- in the place in which they wei« retned* when flie kw 
vepetttecU li^we liable to pay die dnllet. 

Ae q<i«8iiMi whMher sitgalv tn&md bifore^th^e^adlli day •( Julie 
1103, aikd tlMRi Pitliiiiiii, in tto ho«rae wicr* tftiey bed Vein 
MiiiM, ware solject t0 tlie d^f*of two cemt pet poonA^ hn- 
p M0 i by the Act of stk.'Jawe 1794 ? DeHMirrar to the'4edu%- 

Dftilae argued. tiie eaeellHr the ptoiDtH^ eni Rewie atfi ibger- # 
leti fi»r the defeodMit: 


mmMtJmVOMi /. Tie A<it, wMeh ^aMed on the aisth 
4fsy of Mpnl 180^ fcr vepealuif; the hueniia taiMpe^ dtscon- 
Ihwied Ae datf upon leCtt e t eagwa, ewi i agM ««icr aMkles, 
Irbui and^aAep the Mlh e€.JuaeMifl*| aoil i«|MeM'theto#e 
liMth iMd mpoaed tfMB, eaeept as to the recoiwf^ mch eff 
Ihe dettiee^ as on thaf day' hid m€cru0§ ^m4 remm^M^^^fntt^^mnd*^ 
Htgr ^ to which, th^prtmsKNis ef Ibrmcr liws^ere led in Ml 
fcreew The yie ei e a then iS| whether upd« iwfihed sug;ars, fiar 
smr o«f ^ |A# Aevar udMre they were wa ne fc ftured, on hr 
h ei b re the 3d ef lailB>yM d«lles had accrm^ mmd then Pemain^ 
vd oii/saimMni^ f • 

Oft tlie part of the pljilMP H* le oenleBde4 that the AM)^ w 
SKied'iipoD ^le suger, as mm as it was refinedi thoagh the 
psynient ef It Whe to, iep eii d tipaii the act of teadittg out the 
Mgir. On the other sHe-i^hi iinistei, that the duty dM not 
^•ectne myj tto rdfaed nimitf -w^i^ actaaMy sent out. There is 
dUteaity hi the qnartiii ; but aft s t t k^hm 

§§ ^miimmtarAmfi^ 

tidenlioa irilich I li«v« beea aN« to gWe it^ I |pn mclined to 
fi^vooRtkie coiuftrttctiiMi contendKl for bf the plaifttaCf cquntA- 
To decide tiu» queednOf we must look not oi||f fep tte Mr 
asd legal conatructaoQ of the law imposiog this dutyi but i^ wail 
'be ueeftiF %» take a wtd^ range, and compare k wUi tbe geae- 
i;^ yyigtem of duties and excises imposed upon other sul^|a^|^ 
jbe fecoi^ sectkm of tte Act of the 5th of June 1794» (3 Toi."^ 
0f Hfes Laws, 1794,) declarts, that H after suchHa d%gbANP» <ll«U 
be levied, collected, and paid, upon aU sugar reftnsd wijbin tins 

«#risbi dutiis 99^ iaipaimd by. «|ber bkws, mud tm 
Iprkdi and pivd, njpeo iaa(M»i««d gonibijiifMiii dWlliiiiil 
tb#* UUM Statasi upon salea4itAU<|b% «ic. I^e, ; ]» aftrthil 
HlWifj «■ event ia fixed.- upCMs whi^i^ihe daty -aficmeaj a 
pmniled for ascertaining the aubftet on which it is 
and a itve ^fimmmt ^ki|r||i: pglitgd nftt. Qa 
.goods, the dftty accrues on theimpomMm* m4 is titi jM^flU 
at # h3Awg% day. On sales by auction, the duty aecruea on the 
9ak# |to ipiMPit of tbftsale^,, aiil«raW|nfa%4*4he^4M^'is 
Mcasfclinaji by I)mi bMik 4f entiies aind fiuartefly vepiil,'«rbJMfc 
the nuiiriiipior is^#a^«iM 4o nia^i'jb«t noetiap 4f pn^ in iitji 
#l|aW'#dt ^McawM tbaw an^iiiBiMflSiii' bim« nwiPly %i^*tJb^«idQtp«b^Hil 
t» m csMa4 Mpw t# pay ifc. Upift dMIM spirks|,4bcKA|Hr 
iMMiea upfMMiKa spijkilis moiMH^ k -kf <dMlled, an4|^ylnMt 
il4o be secuMd'bffcve it kaemoved) huMbe duty i^npt.diiv 
»«iulable,juwiil'Ricie4Bontba i^Gtar the daleaf the Wnjt »niiihii 
mly UBOn f^ flHldbk- spkk as had hmm 9$mmfmi wkhm t)»ie« 
flsoiiitlMi ffter the *U» of the bend, ^pa tflen, in itnguafi 
nearlf^the same, and /ipon a principle pf^^ii||rspnmllel9 tba 
dii^ n# tw n pec c^nt. k iaspoani, %iid- in^ 4Kiileeied and-Mid, 
«fon all acfined sngaf. Sngar sein^d-wMiin the Uwittd'^mm 
m the j^Wsiof the du(by* .&». ate s||Mta dMUed witkin tb# 
Unif* fttmes^ Ta asoenaiw Ulia imIm ami amawt ^ 
anbjecci of uaurtionf errtsin ^ewignnpy-nagnl 
The nifMit iyi n nr ia^tD ,]wpi»i,i^<ia>nb^ Mb 


Co«0 «i. PeiQiigteB. 


hkpt^bMlMtt fiM^oM, ill th*'«itgftr whkh* ke sliftll refthe frotft 
iqr tordif , sM irtto^tte qvantiiMft wliiilli li« AM a^nd otntlhnn 
rine^ to Haie. ii* i» also to make re{K»ti9 quaitorly) to tii^ 
pMper oAe«rt»«f all reined sugar wMcb haa lieen reHioved from 
MriMMlk^ dQHngthe kst preceding thveo monUia ; prodeeiiig^ 
I* tl» oame Ume, ^ the inapection of the officer, hie booV «f 
MirioB^ Aflt i^ I1M7 be compared wkh his report* Now tiMI' 
NttaoftNyMMS sugcr is a mere circn m«irdiiicr, of which th0 qun^* 
tMf repeat Ad book of OiiAries hre tho «vMnm»/ The report 
e^Ms ehrottmotsnee is roqutfod, iie what purgioee ? That tiw 
#aiaa wMeh Had iic twe d upon die sagaMi fefi «ed , aiid oftedtt^ 
tile eotrf book, aad^wlHeh having been remoired are-ttible to 
ho4ematidod; naf ^ wIwb Aie report is made) either be paid, or. 
seonred to be paid^ at a fatitre di^» What has the eircumi' 
wmnee of seDdfaigeait lAw etigars, to do wMh the esaeneeof that 
«IMi coMtkutes dK a^l^|iq;t'of die duty ? It is itopoalant as H 
rsspeolw the time of payment, but is uneoMoected wMi the debt 
Mblw incwM dMker hf tlMs^words or spirit of the'law. Not 
bf the WMdi^ beeause^lke second soeiioa of tlte kiw hnposes 
the dnty not da I'MJinl aogar ^^em otrr, bMton aN retMod sugar. 
Ta ODWi^ct tlm olicnatatance of nsmoval with that, wineh bf 
tUseeetioB is. made the sufafoet xnf the doty, we «Stt» read th# 
•amid aootaon as if k M desAared, *al tt»» dtttf shosM htf 
csttacted euid paid apon all eagar reftned and mini out. Nothy* 
thei^rislt sif the laiw, if^ be fiiirto oottside^^is law as a past 
of a ganevid SfMM } heaanow thiwQghont tint ayaiem thoaob^ 
]e«t of the duty on which the obligaticm ariaesy Iviepsk 
laitod frem^tfieaiP miftsti nce, by whicft *the time and modi of 
p a y u gs iii 'soe- piae s slh a ili Ay eMnlniing thelawhi thi^wnyy 
noMelsnoo is done to thw we sd a of the Legialatans, and fhw 
hamno ny is prsaesfodf whiah masks the order and ttftmtffe^ 
iirf the d Mfc se m ^aao ft s uB al i a l j ft sm o# the law. What 
teniHwiilj Mhj lia ligii <#-Hm gntted^ases to'^ 
\he dnty rtmiii not attach upe» aM^pwiiV inBy as mm m retf 



1 1 i* ■ I ' III I wt^mmt^/gm 

CXne ft* PeuMflDiL 

#»ed off^m»iic.»'fwi fctkiidi other cmm, k X txi iei ai m p#Md 
«aMK«deot to th«t wtien pajnomtt k fe» Im aM# ^^r M<M >d t? 
* Viiib respect Ct> dietSled spirite, peyneaft ruiitirH ht dvMMBMI 
before remeval. But will it be said l^at.tlie diitf bm notee^ 
eiued before the remoifiky though the time tf ptfWM; he 
yonedj The diitiUer must gire bond to sed^ue^he 
%efore remoTel. Will it be said that this duty« if Mt paU M 
Ike 90th of June 1^3, was not outstanding) 
day the spiiit night not have been sent out ? 
ease di&r hwm lUs? In that, the bond ngiireft fankfe 
lli in this, ii is given efterwarda* But the laws hi thifc 
fMe^ imiwagi an. eUigation ae i«ipe(ione ae %km bend m 
JtanMreiaBe. If itbe aaid tha|:4beduty iMdaeernedintte 
case, hix not in the ether; I wcnM aahy open wliat'ptlaciple 
could the LfCgieiatiife intend to make the diatmetfan. • 

I^ waasaid at the hits that as theiiettee nnnmining the e9§er 
niilght -be bunt down, or ^he sugar migbt melt, the Legidamee 
M nm mean to impose the duty wUlat k remained liable te 
these accidents. I ask, are net diatilled syitits snbjeet t» the 
same perils ? ihit the conclusive aii#irer i% that Hmtfgil Uie 
duty hail once accrued^ andJhad beciyiie a diht dee, yet k can- 
not be demandkd if «t be detHwyed befofnfo m oie l , baoeMse the 
eveotynpen wh i ch' the Mjfiiftndum is made to depend^ can never 
hcppen. It was aaid there were two centingencieSf via., ce- 
taing and aendkig.ettt, both of which mnst happen be&re the 
dn^ accruea. I admit there are twp contiagoiiciea, en liie hap> 
pening of one ef niikh the duty apetaes, to ha demandrd when 
the othen shall happen. 

' U Una construction of the Act of 1 7t4 ha tstneelikfamirtias 
eaaady answer to manyof theiMenionaaawwianted by the 
d cfrn d ant 's counsel, Fdr then the remedy is not gona» bnt pre* 
aerva* by the repealing law, and •f. smit ao the rights 
The repealiagLJaw, w k k h p ra fcia m ta dk uaninnc thi 

.a.tfoMMfiiaMi'hMiknr.liMn (ha 


. J^iL TEiai, \i<a. 

■ ■ n I X 

^ '«• ' t>oxe «•. PeniQgtQii. 


• As to tbe argument, that according to .this construction, It 
woulc^ke in the power of the sugar refiners, i>7 keeping on hand 
a «aia]l portion of refined sugar, to impose upon the govern- 
menl" theiuircessity of keeping in office a number of officers, 
'«upon sali^ji^, t9 collect the duties; there are two answers, 
~First9 that the sugar refiners could* have no motive for such 
conduct, and therefore it is not to be presumed ; but secondly, 
tlA Presid^t is authoriEed to diminish the number of those 
qfAcenf to any qumber he may think proper to retain, by con- 
solidjittng the districts. 
. Judgment for plaintiff. 

This case was tftken by writ of error to the Supreme CotfA 
of the yoked Slates, and the judgmyent o( tke Cbcoit Court 
was re^ersed^ 2 Cranch, 33. 


*• ^ ♦ 

•• # 


rXmrSTLVAKlAy APRIL THRM) 1694. f • 


rrion. BUSHROD- WASHINGTON, AModate Jiuice of tiie"" 
CBon. mCWABn PETERS, District Judge. ' ^ 


Hurst's Lessee v», M'Neil. 

Itie freehold eitite wfakh Teats in a re4efl0ee» under deid of lease and tc- 
lesBe, by enlaigement, is an estate at comnum lai^ which' did not xeqaire 
iht aid of the statute of uses to execute the poasesaioa tq the use* 

The mere calling a deed of trust, mentioned in the recitals of othertHdeedsy 
a deed of tnut^ does not render it so. 
' The record of a trial, and verdict against the plaintifl!^ ih'a suit brought by 
lum against another person { canaiyt be given in evidence by another dc- 

The doctrine of a ptnehMer without notice, appliea obly to equitable q^hls^ 
where a legal .title is obtained, without notice «f a prior equitable title ; 
• when the fbrme^ wiH prevail in equity, if fiutly acquired. 

In the case of legal titles, the rule is eaveai emptor. 

Length of time cannot be presumed by a jur}', but must be proved. 

length of time may properly induce a juiy to presume a grant in support 
. of such poaaeBsion; wluch presumption nay be iCftoUed, or accounted for. 

The aasent of the grantor to a deed, cleafly for his ben^K n»y be pre- 
sumed ( yet if a ootsidention ia to be paid» the aaaent niatat be provedt 
or nothing peases by the deed. 

A deed executed for the purpose ef giving jurisdiction to the Federal Court, 
will not be countenanced so as to sustain the jurisdiction. 

Ejectment iw we oidifidM fiumh pwi of s^ooo acres 

of land IB C h ti tw ceonty. 

APRIL TERM, 1104. 71 

SepCembcar 4th and Stb, 1682, William Penii» the fir^ p»- 

•pmtmvby^AMds of lease snd release, conveyed to SirJoto Fag g 

aiOydeo acfos oC Icsid, tabetkereafteir'loeated in FtaamflfBSinmf 

to him, his heks and assigns; in trust, as to one-half thoMo^ to 

' tbo «o of Ids MB William Penn ; and 'as to the otheiv to his 

"ia cDg i m eg, LastMa Aubrey ; both children of faia fital toa ma g t > 

Thia deed »ot produced, being lost, but aefl&ciattdy pkotcd, J« 

thb plaintiff inaisted, by recitals in Si^eqimt dmim, 

^3oine ytrnt^ after this, but when does not uppear, fire thoU'^ 
sand acres, part of the above fifty thousand aorea, were inivviy^ 
' ed in Chester coitnty, without saying for whom, but endorsed 
<> Wm. Penn's Manor." This is the land in question. 

In tri6, Wyiiam, the secfond,died intestate, leaving Spring- 
ett, his eldest son, William, Gulielma, and Maria, who after- 
wai^s married Mr.'FsH. By the intestate law of Pennsylvania 
at that time, the eldest son took one-half, and the second son 
and the daughters, one-fourth each. 

S4th January 1730, Springett, by will, devised hishalf tojiis 
brother, William, the third, who thereby became entitled to 
three-iburths of his ftt^^'s estate. 

10th February 1740, a warrant issued to re-survey Pf^iiiam 
PennyJun*9. Manor; which was done, JttDe 1741, ahd found 
to contain five thousand acres, endorsed << Wm. Penn*s IManor.^ 
This was accompanied with a list of the settlers on this manor^ 
amongst which is. found the name of William Porter. * 

Mr. FtU #ed mmtMUf festdotthKMisiriHM^ Mhevt Ed«' 
ward, Maiy M.^ who afcswwids snartM Mea Bsgnp) mi Kkty^ 
lielroaMawa^iaaeea, wto mtn^mk Mr. New t a im 

Mr. and Mia. Baron, in Palmary 1766> conteyad UMir inlet* 
sal to Criq^ia, who la-cooveyed to Jain Baio» la foa. 

In 1770, RobefC Edward F^ll aad Mra. Newiittm, by thpr 
iftiUBey, and in consideration el Ji4,<W| isawaiad to Timothy 
Hurst all their Ms and Wads ia 6«Mi saiM ia PhikdelpfaiB, 


-ima liil 

tkHrkmU te 

14* l—wjr 1774, Timolhf c o»t cyd to ChiiWi "Pmaaayi 

ectved • 


1783« Cbalet Hunt, « flnonwf in fiwlt 
ThMBM and Jcrim, aad in Inownrigk^eiaiTttgrMi^ 
lads to ClcaMm Biddle; aid Hk aext dsf, 
of the tame ; aad on the 
179I9 Chailcs Hutst and John 
the plaintill^ a Biitiah aobject* 

Defendant* TUU, .« 

4th Maf 17439 William Penn, the third, who was only cnd- 
tlcd, under the law of Pennsylvama, to tbxee-fourths of the fi?e 
thousand acres, reciting the deed to Sir John Fag^, {ut «t0ra) 
conveyed the whole of Penn*t Manor to John White, in fee. 
In this deed, he styles himself heir at law of William Penn, the 
sdpond; and covenants that he has a right to convey, &c. 

I2th December 1747, a patent was granted for these five 
thousand acres of land, to John White, by thi( then proprietois, 
TlMMnas and John Penn. 

12th February 1753, White, by attorney, conveyed 29 8| 
acres, fmX of Penn's Manor, to William Porter, in fee ; who, 
hf will, dalad 34th May 1781, devised the same to the de- 

The AttotHf General (Mr. M'Keaii^) nseived to nonsuit the 
pbfaMsi; Oft the gvetfnd that the deed to-^ John Fagg convey^ 
ed toihfan the legal ettato, and that Hm estate efWintani Pran, 
the tfeeond, and Ltttitia, was n mere trust, not executed by the 
statute ; and of oooree, that the plamdV, if he be entitled, must 
assert his right in a Court of Equity. The plaintiff cannot, 
against the ca qi g ato woffis of Ite various recitals, from widdi 
alone the deed to tir-JohB Fagg is established, si^, that tUa 
-A a tnist esttte» tihan those fociials declare the conlnry. 

APRIL TlSlM, ieo4. 7a 

Hunes Levee m. WXMh 

It is dearlf to be inferred^ thiut tlie conveyance ,wiis not only to 
Sir John Fagg, his hein and asaigna, bet the uaeai words add- 
ed, << to bis only use and behoof, in trust," &c.; in which case, 
the statute would only execute the first use in Fagg. The lease 
tt> Fagg, which was no doubt by bargain and sale, moat certain- 
ly passed only a use to bun ; and if a seooni use had been de** 
clared) the static would not have executed the second use. 
The rrieasB* then, onlf enlarged that estate- to an estate in fee, 
without changing its nmture; and therefore,, only the first us^ 
to Fagg and his heirs was executed by the statute, leafvuig the 
second use a mere trust estate. Cases cited by Meaan. fid- 
ward TUghman, and Rawle, who supported the metien: 1 £q. 
Ca. Ab. 383. Doagl. 709. 2 Black. Coin. 335, 336. 339. 2 
Woodeson, 301. 296. 

Leyris and IngeiaoU, against the motion : The plaintiff may 
fecover either on the warrant and survey, which, by the deci«' 
aions of the Pennsylvania Courts,, and by that of the Supreme 
Court of the United States, are determined to give a leg^ right 
of entry, which is sufiicient in ejectment ; or under the deed 
to Sir^ohn Fagg, which conveyed a use to the children of 
William Penn, executed by the statute. The general scope 
ef the atatule was to execute all uses and trusts ; for botk 
are mentioned ; and those which were- not considered to be 
executed, were exceptions made by construction, by the sub- 
sequent decisions of the Courts of Law uid Equity. Those 
were terms for years, double uses, and cases where it waa lie- 
*cessary for th^ trustee to retain the possession, to enable hint 
to execute the trusts. If thia caaeoonea within either excep« 
tbn, the defendant muat shew it. The conveyance hf lease 
and releaee to A, to the use of B, to the use of C, passes but 
one use. Cases cited : 2 Black. Com. 332. 335, 336. Chrialian'a 
note. 2 Woodeson, 296, 297. 294. 

The answer to the title set up. under the warrant and survey^ 
waa, that this doctrine onlyapfdied where they formed the <fi* 



Hiunge* LMwe m M'Neil. 

#^Htii of title; a/tftfrof aMtlMrcitattyasinthUcase^hadbeeD 
cfwted pffior to the 8UfTef . 

WABHIXQTOM'^ /. delivered the opinioD of the Court. 
The dietiiiction hud down by the defendaat't counftel, seems to 
be a ndonal and aound one. There is certainly a difference 
between a title derived orig^inally under a warrant and surroft 
and one under a prior deed from the proprietor; in which caso 
tiie warrant and aurroy aecm rather intended to k>cate and aa^ 
certain the land granted, thm tio paaa an esUte. But upon th^ 
point, we giye no positive opinion, as we are against the motion 
upon the odier point. 

A lease at common law, required the actual entry of the lea- 
see, to enable him to receive a release to enlarge lua eatate* 
But after the statute of uses, this formality was rendered nnne- 
eessary; because, the lease being made by a deed of baigain * 
and sale, the lessor stood seised to the use of the lessee for a 
year; and the statute, by executing the possession to. the use, 
put the lessee in possession, and enabled him to receive a re* 
lease. But the freehold estate, which became thus v^ted in 
the re4e8see by enlargement, is an estate atoomraon law, wluch 
did not require the aid of the statute to execute iho possession 
to the use ; and therefpre an estate conveyed by lease and re- 
lease to A and his heirs, to the use of A and his heira, to the 
use of B and his heirs, is no more within the statute of uses as 
to the estate of A, than if it had passed hyfeoffrntni; and con- 
aoqucntly, the first to be executed, would be tha^ to B. There ' 
is, therefore, no second use in such a case. But if the convey- 
ance be by bargain or sale, or covenant to stand seised, the 
statute executes the first use, which is distinct from the pesses- 
sioo ef the bargain or covenantor, which remained in him, and 
required the aid of the statute ; and consequently, the second 
use was supposed not to be easocuted, but remained a trust. 
This doctrine, if myvosemory serves me, is well explained by 
Hargrave, in his notes to Coke Lyttleton. 

APRIL TERM, 1604. 71 

n il Ill I 

Hurst's Leaaee «•. IfBieiL 

■ 1 ■ ' i t 

But it is contended, that the recittls in the Twieua {MpevT 
relied on to establish this deed, denominate this a tmst, whieh 
the plaintiffii cannot now deaf. No person can dotbt thac the 
intention of the statute of uses was to leave no cases of trusts 
unexecuted. Bvt the common law Courts haraig unfortunate- 
If determined, that hi three cases, the use remaifted aa at 
c«Miimon law ; th« Ccmns- of Equity yerf readBy, and* in my 
opinion very properiy, laid hold of those deciriens, treated such 
cases as exceptions fit>m the statute,* and entertained jurisdie* 
tion over them, as they had done over all trusts before the sta* 

We most therefore conslifer them as exceptions ; and when 
we hear of a trust estate, it is to be uudentood a use executed, 
unless It appear to be a cas^ comings witMn one of the excep- 
tions. There is no magic in the word iru9f^ any more than in 
the word iMe*— they were controvertible terras before the sta- 
tute, and BtiU are so,- except distinguishable by the subject mat* 

ter of them. 

Motion overruled. 

In the further. progiMs Af the cause, the defendant's counsel 
ofip^red to read the seeofd of a trial between the present lessor 
of the phdntiff, and Anaberton ; respecting part of the five thou- 
sand acres ; which was objected to, by the plaint^'s coonsel, 

WMhington^ I, ' Such evidence is inadmissible. If there be 
a point completely settled, and at rest, it is this ; that a verdict 
between different persons canlhot be given in evidence, in a suit 
of one of the parties agtinst a stranger. It is true, that in thai 
ease. Hurst, against whom the verdict is offered, had an oppor- 
tunity of cross-exsmirihtg; yet it cannot be offered against 
Hurst, unless he might have offered it, had it been in his &« 
vour. TlMs is the settled rule. JVbh coruftat that the evidence 
necessary, or supposed necessary by Hurst, in that case, was 
the same as in this. He might havc^ been unsuceesslhl there, 



Bunrt^i Lessee «. ITNeiL 


-for manf remotm which do not iMyir ezi8t-«the abaeoce of wit- 
iMMesy or the tike. 

Cases eifesd bf defeadtoVs cowiselt Car. 181. Gflb. Evid. 
33. 69. 

Jonathan H. Hurst was examinod as a witness, who proved 
that when Charles Hor^t executed the deed to the lessor of the 
plaintiff) the latter was in England, and had no agent presenfe-*-- 
thai no peMoa was present, but the grantor afid the witnesses ; 
nor did anf consideration, or security for the coattderaliiooy 
(mentioned in the deed as the eoosideration,) pass. 

It further appeared in evidence, that Kirkbride, the executor 
of Robert Ei Fell, having iostkuted a suit to foreclose a mort- 
gage given bf Tiatkotby Hunt on the South street lots, for se- 
curing the consideration money to be paid him ; a settl^eot 
took place between the parties, bytheir attomcTS, when some 
allowaDce was made to Hurst for certam estates in Pennsylvania, 
which he had been prevented from recovering under the deed 
from Fell ; but none was made on account of Penn*s Manor. 

After the decision of the Court upon the motion to nonsuit, 
the defendant accidentally heard that the deed to Sir John Fagg 
was in the city; and he produced, b^^oflte the argument had 
closed, a deed to Sir John Fagg, dated 5th Septembetr 1683^ 
from William Penn, for fifty thousand tfecres, but wlCliout de- 
clariog any uses to William Pemi and Laetitk. 

The ground relied upon by the phtintifT, was, that by the 
death of WiUiam Penn, the second, intestate, one-fotrth of the 
five thousand acres of land descdhded to Mrs. Fell, which has 
been regularly passed by the lessor of the plaintiff. That the 
conveyance of William Pean, the thitdr to John Whiti^ could 
oidy pass his right, which was to three4burAs of the five thou- 
sand acres. 

Wa9hlngton^ /., aAed the plaintiff's counsel if the convey- 
ance to T ia a a s h y Hufat, during the adverse possession of Por- 
ter, could pass a valid title by the laws or decisions of this 
fkate; aad if an alien could take aad hcM lands here. 

APRIL TERM, 1804. ' 17 

HuneB Leaiee m^ W»fSL 

. Mr» Bd^htfd TBghmtfi, for dftaidMit, admilttd that it b^d 
so frequeotly been ruled in tbe Sofireme Court, and otber 
Courta of this State ; that a conyefinee of land, where at the 
time there was an adverse poaeessian, is good to pass the esute; 
tlvftt he could not question the plaintUTs tide on tUs ground, 
tAlso, that at the time the oooveyance was made to John Hyrsts 
an alien could purshiMo and hold lands in Pennsflvania. 

The defimdsm's counsel objected to the plaimilTs title imi 
the following points t— 

First. That it is ^lot to be bettoTed that Mr. Fell and Mrs. 
N^cum could have intended, bf the general wotds in the deed 
to Hurst, to convey more than the South street lots, for the 
trifling considerstion of i64,500. That if the jury should be of 
opinion that this was the intention of tiie parties, the intention 
must preyail; and they cited 1 T. Rep. 701. Cowp. Rep. 9. 
. The piice being outrageously low, is clear evidence of a fraud. 
1 Vesey Jun. 319. 

Second. That Hntst fcceived compensation for all the lands, 
except xhp South street lots, in the compromise made with 
Klrkbride, the ezeeutm* of Fell. 

Third. That after so great a length of time, and so long an 
acquiescisnce on the part of Fell, the jury are at liberty to pre* 
sume a possession long enough to bar the plaintiff; t>r that Mrs. 
Fell parted with her rigbt to her brother Wilfiam Paim, the 
third. CiMs cited, 2 Inst. 1 18. 1^ Rep. 56. .3 9hM:k. Com. 188. 
I Equi. Cas. Abr. 306, 3 Atk. 71. 67. Skin. 77/ 3 Vern. 391. 
Cow. 108.314. 318. Bull. 75. 3 Atk. 83. 9. Mod. 37. 1 Lord 
Raym. 88fw Salk. 431. 1 Brow. C. C. 5S4. 8 Vesey Jon. 583. 
13. 3 Burr. 961. 38n« 3 Term* R6p. 3lo. Cowp. 108, 109. 
3 Atk. 639. 4 T. Rep. 688. 

Fourth. That this Court has no jurisdiction, as the deed 
from Charles to John Hunt, under sH the circnoistances of the 
case, was ondoubtediy n Sctitiyis conveyance, and intended to 
give jurisdiction, whUst Charles Hurst remains the real, and 
John merely a nosBiaal» pl dbUff . Besides, it now appears by 


• « 

78 ' P£NNSY]^VANIA, 

» * 

Huneb Lenee m. H'Neil. 

tli# deed 10 Sir Joim F«gg, that the legal estate vMMl abwliite^ 
If in himy and that do uses whatever were declared. Cases 
citedy 2 Dan. 38 1^ where the Circuit Court, ott proof that the 
donveyance was merely to give jurlsdiotiotii struck the¥:ause 
off the doeket. 8 Black. Com. 306^ Assent to a deed by 
grantee necessary. She|»* Touchs. %%3» i 

For plaintiff on first pefat : That no evidence or presumptltwi 
can be offered to contradicti or vwy the general espressions of 
the deed. It was a land lottery, and at that time it was impos-* 
sible to say, whether the conslderatiefi' was too high or too l<»w; 

Second. The argument of compensation, is repelled by che^ 
testimony of FidM*. 

Third. Admit that where a deed appears which would be 
invalid, without oertain formalities, as seisui, surrender, or tlM» 
like ; the jury may in fivrour of a kmg uninterrupted possesskm 
presume them ; but it is going too &r to presume a conveyance 
from Mrs. Fell, or an agreement to sdl to her brother, wiHiout 
the slightest evidence. The presumptionB relied upon in this 
ease are completely repelled. 

Fourth. John Hurst had certainly an equitable, interest in 
thps land, and if Charles Hurst conveyed the legal estate to him, 
it does not affect the jurisdiction of this Co<irt» 

JVABNIJfGTOJ^y J. diarged the jury. After staling the 
plaintiff's, and then the de(en<font's title, observed thsi the for- 
mer was regularly deduced down to the lessor of the plaintiiF, 
whereas the defect was obvious in that of the defendant, since 
it was derived from William Penn, the third, who was eniitled 
to only three^^fourths of the live thousand aeses of land, and con- 
sequently could convey no more to White* 

But objections have been made to the frfssntiff's right of re- 
covery, and if they or any ef theas sheuM be*siistaitted, the ver- 
dict must be for the defendant; notwitheCanding the defect in 
his title. 

The frst objection made to the plaifldirs title was, that it 

• 'APRIL TERM, 1804. 7« 

t ■ • 
I 1 ' ' ' 

Hurst's Leisee fw. WNtSL 

appem fnxa the nnaUiieM of the considonition, that it was not 

4he intflDtionof Fell to convey any thing more than the South 

atrdSet iota. That being a reaident in Great Britain, it ia hardly 

paabablQ he knew that he was entitled to a part of Penn'a 

'Manors and many other maiiora in Peonaylvaniay which were 

menUoned by some of the witnesses, aod to which Hurst has 

laid claiQft. That it appears Hurst was much better acquaint* 

.ed with the righta of the FeU fiuaily than they were^ and it was 

a fraud in him> to throw in the fpneral sweepkig words con* 

•tained in the deed to him, without disclosing to them his 


Answer .*-We must judge of men's usteiitions^ in solemn 
acts of this kind, by the language they use. If they are clear 
of ambiguity, there is no room left for conatructioUf and we 
inust give effect to the words which are employed to convey 
their meaning. If nothing is to pass under the deed to Timothy 
Hurat, but the South street lots, then the descriptive words of 
other property |pust be rejected altogether, and if any operation 
whatever is to he given to them, where can we stop, or by wtot 
rulie can we limit them I Can we obliterate the words, ^« and 
all other their parts of land in Pennsylvania, or elsewhere m 
America,** or say that they did not mean to pass away such 
rjghti^ if -they peasesaed them ? This doctrine can never be 
tolerated. There is no evidence of fraud on the part of Hurst ; 
mA the whole argument is bottomed on surmises and conjec- 
tures. It was said by the counsel Ibr defendant) that White 
and Porter were &ir bona fide purchasers, without notice of 
ihe claHna of Fell. B^t this doctrine only applies to equitable 
righta, where a legal tAtle«aa «^tained without notice of a prior 
equitable titles m which the former shall in equity prevailf if 
aaqulred fairly ferviduabln consideration, and without notice of 
the latter. In this caaei the title of Mrs. Fell waac a legal title, 
aad therefi»re as to White, the principle caveat ^emMor applies 
in all iu force. 
Second objectian* Kurst has be^ satisfied in tlie compro- 


Himei L«nee m. H^eil. 



the deed to Sir Jolm Fagg, thaf the legal ef / / Ofaetelf 

ly la him, and that do uses whatever 

^ t c»4hsX no^* 

cited, 3 OaU. 361, where the Circuit '/ // ^7 put of 

eonveyance was merely to give jur/ / 
off the dodiet. 8 Black. Com*'. / © dcstructioa 

grantee neceaaaiy. Shep. Toua* / / aefendant's, and 

For plaintiff -on first point J - / ' argued that the jury 

fswk be offered to contradiC / '* ' oAcient to create a bar, 

the deed. It wm a land \ f * with her right to Wiltfam 

uble to aay, whether tl^ ^ 

Second. The arg" j-^ ^^ ^^^ c*" ^ presumed. If the 

testimony of Fislr *^ *• * ^^^^ ^^ ™'**' P"*^* '^ ^f ^^'^ ^^' 

Third. Adw jve or circumstantial, so as to satisfy the jury 

invalid witbi^ ^ridcnce ifrthis case has been g^ven of a pos- 

like • the iir ^ aiJ^^* ^^ ^* i^ therefore, cannot extend it^ 

presume * '^^0^ 

from M y^aff ^^^ presume a deed from Mn. Fell, or some 

^^ 8^ ^^!L0^^ between her and William, the .fhird,. by which 

••^ ^!^^ ^^ ^^^ fourth part of Fenn's Manor. This pie- 

^^l^if warranted by such evid^we as will satisfy yeur 

^!b^^ the fact existed, may be made in favpur of this kmg 

^f^t possession under William Penn. But those ciroun* 

^^ mi^ be accounted for, and repelled; and after .weighing 

fi tJis evidence, you mast decide which preponderatefti 

fhe circumstances relied upon to induce the preeumptioii 

^^g^ the long acquiescence of the Fell family, from the year 

J 71 6, when William Penn, the second, died, until If 74, when 

Robert Edward Fell and his sister soU to Huiat ; dnsing ell 

which time no claim was made, .or any attsfempt to exercins any 

act of ownership over the land in question. The good characler 

of William, the third, and the conseqnest improbahiHty that he 

would convey away the rights of his sisiei. The strong ceve- 

nanti in his deed .to White^ demonstnrting the confidoice he 

ftlt in his right to convey the whole* That this being a fiunily 

transaction, the probability that seme afreenent was asnde with 


APRIL TERM, 1 804. 

/ • 



HunffsLenee w. IPNeil. 

Mrs. P^lyiff stinnger than if the^ri^ had bi|ong;od to a stfan-r * 
ger. Tfaoniaa Pemif tke pfO|>iic|ot, wto grafitei«*^aa«nt*for 
tluB five thousand acres nf land to Wbke, was afso IhS guardian 
of tke yoisiig .Fella; mA it i» scarcely poaaibte ttfat he was 
ignoTvnt of thea: rights^ if fkof had-lie^ pa^teB with# If thtjr 
)iad jiot, that he wduld have united in eQOfeynig tfami 4wfi{; 
OB the contfial79 it ia to be aap|>osed thathe^VPoold htigB^ taken 
proper steps to assert and secufe them^lb# ||^s wards. * 

The. plaintiff answers theae circmm^aneea in*tbe fiitlowftig* 
nattner. WjUiam^ the third, as well as his sl^r, !ive^ in £n^ 

Jbid. He knew that -hf tke laws of fingUn^i^ h^'wls en^tled 

^1^ descent to tie wMe of hit ftither's real estate^^'as hei^at * , 
law I and that he^dained k in th^t i^ht, appeara from' the 

' deed to White, in. which he tftytes-^insei^lleir i^4law; itib' 
hardlf probable thaa he knew of ^he MhefSste faw V Pennsyl- 
vania. He either. knew of hia sister^s right to pne-Anrth^ or he 
did not. If the fiinner^ and he Itad pttrcha^^ itfix>m her, then 
be wonld^have l||p«ght k^ae necessary yo state the fkct, so as^ 
sb' show his right to tha^ Aurth, as he did to set ou^the right 

, tinder which he qiiilQied the tbijae-fourths. 'If the latter, thei| . 

' he never couU hvret^chaseditii* As to t^ lon^ftcquiescenc^ 
oB the part of thp fell {anftly } tljs i|as account^ for. ^9S||N^ , 
npMmcw <tf tiat ifKsaXj fi^reat^Vitaki f thiir ignonn^^ro- •' 
i|ably of thisir rights ;'^k^ 9^t|| valife <jjR^t|ie propeft|f at \hat 
tiiteV^^iKHhe policy of die pro[yietA^ iifescqprjLglng^setders 
eii.tiwir Ifpfids, instead of nakinf attAnpla to di8turl)*«heni« 
That.ail to tbe fHunt to.Wjut^l^oa^Tl^flkrs t'ehn, this proTea * 

• l^nWutt a^Mt waaa v^Uf ^^ficf conTeyance in th^ name of the 
lpu | Hi s fi i%yhnt by ^A%|M«teAii|*govemor in this province, 
die |jJo| #H l or^ttieiits^lfcarti!mg abnoad. 

\ ^iMkueh stnftk wiiK thfa ospressbn in the deed to White, 

i|hcfe WUliq^ P^m yiy^ea jhimael^ heir at Ifw; widch' seemed 

•la show |luit he^had auaiaken' or was. ignorant of the law of 

* Beanayt^aua, #md cMwedttee whot^, not by pi^lutte of liis 
•siatir^ %mith{ tat:lfr oharaotar ^ linr at law. It ia however 

• * 

<< • 


1 1* IPI 

fa-' PSNN 

heif vHftH^ •Wis ftidier^ beett««e Sp^^t ^m iidV ^ilawy and 
. i^8vicl^i4»*elil:itled to «MfeMfi %ili4i tqr kit will ho itanM* 
to hfs\nltl«r. B«t aRer tlN» Wb o£49|inii|pett» wittioot tesot^ 
M^aiiam ««cqiiii^ the '(t^llacter dllieir at law tOr bis tubte? 
a^ tHefMbt^ whA^atylto hhnidf BudHnt the ilnri to Wiia 
it ift Tat^tr to l>6* < ! ht i s MereJ^ as a ^rW^<<a fitr^nMi ^kaa^-^mp ' ^ 
descriffti^B of his ikR. I It ^ar atodr aif^M hf the ||efnwta||tfi» \ 
;^ ^aAls6l^fh«tVben the^Hfeat fsgaaUf eettienieiit bet^q^^flM^''' 
<l|b8c«ifds^te 4f tjl^fint Wiytanif Bm Ms hMKMp t73li4|^ 
iigllf juifUjile, the aounsel whfi^ wktet. em^^'>0« that 
• * s3M» hed bfbnii A itemstlTjea ofNrhe laM^df ftilmefriyi 
trotild then h|tre ^iiftMfcfA' Mr». Pelt'a alght 
* •'The j^l^^ll Mlgh t^efVlrdlfmitaiieeft iftied u^ |6 pftt^ 
itiA{\^j>t<esam|itiilh^|ld tlie «Diir4Aa ^hi»h h^^^ 
^ th^m. ililheji up6B theh* dathft, feel eeiittetl. that Mcs. |MI,' 
did, i« fiottie wa^r woth^^ cotive]^ awaf h«r Hfj^ ^o^MlkteEit 
/ire thiM, they will find for defendtat; <ith ei ^| ^u» ^^^Ssi^jMm? 
^Kilri anieM the remaining objectioha 1^ agaiaat hin|.- . . ^ ' 
^ . Fourth, f his objection is ta the juria^lpbn <»f the €a«|& / , 
^ By tha 'deU'Df the 1 5th Jaa«^ ¥trM§iihm tiftothy Hjlht; ' 
^ HAft^ ThSoias, and l9|n|||eqiii^t eilti^!l|^ the ted ^fff^^l 
* cb<|f^f^,ft8teiiifttsW(fmtS^ ;>t * ; ^' '- :- -r^^ 
The left fiMfi CHi|^esn^r|| .4 Ql^e, aad th%»e«t yu <itf | 
iint^ toT^aig^as ttafbd^flWl^l estate In this land iaChaii^'i 
bjUt JUhD WA Thoiai|, ft ii aintUfl, were not thttf^ diTt^jppI 
' bf thdr rigbtil in i^^, 4iK>afl '^^ight^a^lflawi .H^ ' 
Ifhe deed to Min Htirst was 'ifeif^ ty be aareal <!■#» >wHpi^ 
ihereljr BcfRkiu^ and hitenda^to «M## ibim HiMfr t$n^m '^ 
this Court.* ' If the foHner; it Wtts^aM ;^ lb' ^ asAft of the 
grant^fe Vte not given^at'thrtl^iaf n^ imtt ev^r Mft .aitfce 
gW^ : Ibr tA(b)igfathe atfMm af a frmcisa ta^a dapd^ cHuifif t^ 
his >^ne(k, tnay He iH-eaatnat;* yet, tf * <36tiaiNlairatiaf ia* ta hi» 
fif&td^ %l4n this case, (4er,0CK) h niantiMed*)4hc#MnQiitBU8t he - 
^tovifid, or hb\hing p^itum hf ttadetil. ffH ^iraa 'Mit iifeabt. , 

I « 

APRIL TEBM, 1804. 



tw. McNeil. 

4 ^ ■ UH 

as a real canyeyancey then it may ^operate to {mms to Joh» Hunt 
a legal tkle to his^ own third> which had becone vi^te^ m 
Cbaii^, but to yfbich John still TOtained an equitable title. A^ 
to any thing more, die deed oannot be supported;. because, as 
to the rights of Charles diid Thomas Hurst and John fiaron> 
they remain unafibeted by 'the deed to John ; SQiUkior merely 
a fictitious thingi to give jurisdiction lo tlys CouQ, it will* not * 
receive oiir countenance^ , 

As to the deed tq SUr Jabo fmg^ wtuch hy beepi^iDda?^, * 
♦it is ^ther aot the deed so ABqii«ally reutpl^n the tiOa pisp^rs 
'wHch hava been tead, oMheve iPas so^neiotlMP deed ^xec^i^d 
tm the same day, dedaring the uses ia the fiftjithiyisacrti acres . 
of land to William Penn, t6e second, aM Mrs'. J^ubrqr. TUb, 
there^re, forms iiq objection to the plaintiff's title. 

Jury /ouf^ mverdt^t'for (kfin4<fnt. 

IngersollandLa]rift»fi»rj>laintiff. a *' ^ * 

M'&esp, Mmtftmef GanoNd, Edwani Tilghi^in, 4hdi*iUiirle, 
fer defendant. ' * 


i • 

• • 


• • 




• « 

• • 

r « 





• • 

I- * 

>^[piBUi-> ■■! ■■ ■ ..I At ■ I f I n ■ "ii ■! 



' A;ffOMYM09g. * • 


Jndiptilieftt for perjuiy under the Bankrupt Law of the United Statet. 

When a bill of sale is made fraudulently and colourably to the bankrupt, if f 
tie swears th%t the property mentioned In it belongs to him, it Is peijiuy. 
But, if 1#s^i«earatto such ownership from mistake, resulting from a Qui* * 
oonttraction of a fk^t'it would doI be ja^irj^. « 

If^ oA^oe be etmfeihyJAw^jBjai befoie proteoutimH (be law be re|teat^ 
edy Hie qffevite pannot he |iuniahed» unless tfaer^ b a reservatio|i of jup^ 
fiction 'over Ibe offyce, in the repealbg kw. ^ ^ 

Under the act .of 19thlDecember« 1803, repealing the Bankrupt Law, tb'ere ^ 
is no* reservation for such purposes \, and it would only be fbr*pei3ury 
committed after the rep^ of the law, in cases^ which, by authoftly of 4he 
repealing ifct^ may be completed, tbatraii indictment could be sustained 

Pqifurjr'^iAnitted ill proceedings und* the Bankrupt Law, cannot be 
pmU^M <&^ the general Ccimiaal Law of tfat United Slates, the 
18th sAtion df which applies^to. perjuries committed in judUM pnttod- 

' ^in§f9 whether oraUy or by deposition. 

l^gr a t>frj(u7 «nder the BankmptLaws, an inctictmenf wiU not be support- 
ed a\ Common Law ;. because, there must not only be a false oath, hut it 
must J>e «ken in aome^'tidieiql prooudingB^ ifi a matter material to the 
iisue. • « 

X HE. defeA4ant ^s indicted lor perjury committed befbre 
th^ ooAimi&sionei% of batnkni^, where, being asked, <* at what 
time did you own^\h*(^rig*Ab^i1,^aiitl witen did yod eease to 
own her," ^sw^Ped, on oathf «^ftcannot tell exactly the timoi 
I believe It was at the latter end of 1799 that I first owned hdP^ 
1 ceased to own her, I rather thkit, iDHMf^flr leoO/' Whereas 
in tniAeEiiJ^ in fact, iM^ said de^ctlM: tt^iei^ did Qiwn'the B«id 
brig at ^j titne dunng the year 1799, or 1%fare« Hfter. Tl|# * 
first cotinf lai<b-tbe "oiOlnce against ihe.wmkrtfjt liiaip, m^ ' 
the second against the ^egeral (S^to^ iM of tii^'UM^ft 
States. • "* . . • •. 

APSIL TERM, 1804. 



On not guilty pfeaded, Mr. Rawle for the defiBodaal mmunAf 
tluit he shouM endeavour *to satisfy the Courl there v« law 
to supiKHft the indictiiieot; 'and subfli^yksed whether Jhis thopld 
be done before the jury were swom^ or after,' and befere-a ret^ 
did were rendered ; or in arrest of jiadgpnent, should the veitdiet 
be nga&ist the defendant. . ''»•.' ^ -* 

*The Court thought it taost proper to proe^M in the ordiniiy 
iray, leairing both law and fact to tb^ jury, uMiilr Um charge of 
the Courts or to a motjon in'«r4Mt>f judgmentt should the 
jury find the d^imiam guilty * *. * . 

Byrd • Wtlson, the secretary (n- the coi»n^ioneis, proredt 
tbttt the quettidh, id stated i^ the indictment, was asked the 
defendant, and that he answered nt on eath as there stated; that 
the question was put, and^tUb oafh administeredy in the pre^ 
' sence of the c<munittiodbrs, andj>y tlmir direction, on the 20th 
September, ^803. '^Ihi^ question «nd answer were ^qnnnitted 
to writing by the witnji^ and wfs not signed .by the ifefendantt 
Phineas Jjaniel proved,* Ibat he wished to purchase Uie«,biig; 
BXid, bAne gn.%lien, he, with a view to give her th/s diMaticfer 
and p^rileges of a vessel owned by a citizen, got the defend|nt 
to let She bill ef sale be made to hhhCbut that he^Duiftsi^p^d 
for her, and to give colour to the Qover>« obtained a powerjof 
attbmey fttun the defendant to jsanage the vessel, and also pne 
chsriA paAy to Bristol f^ one. voysfge, ani aj^f^sds another ^ 
for ten years. • # , . 

Both this witness ftnd WiBianif^ a ptfttner«ot dbfendant, 
proved that the defendant never claimed op tsbitised any acts 
of ownership over the ^«BssdU*nr made ai|y,demaii|^for freights, 
profits, Ice. In fiict, the testimony%i^t^is^iift«ra|pcMnplete. 
' There were watiiMies ea^pfned to dbd«ftifc OanM, who 
ssid very kuA Mo§ff^ &is gAeral Aaracter and credit, and^ 
- eeme contm^ifisnb appei^red in his t^tlbsony. But his evi- 
<l{Qcerespectinfl^€he wopdHy in the^rspael, was strongly cor- 
»^)Sicatn4 ij^ inite^Mi «nbeit Whittle^ and A. Brown; the 




power of- attorney, charter parties, and the accounts kept bf 

Mr. Osilas, the Dkitiict Attortiey, cootended, tfaiiit t^e de* 
fbMAalft ^iras indictable under the Bankrupt Lav, although it 
was paftiall^repealed before the proseeation, heeauae the pio** 
^ho iavtd from^he operation of the. repeaiing cbtnae, dl caaea 
wneie commiasaMMa had previoualy iaaiMid; and that unless per- 
juries comaaitted un^er b^<J) commisaicHi could be peoaecuted 
«nd pumahadf it ivoald C^p tK th£ exe^utiow qf the eommU9i»n. 
To profVe t&at die iote&tioA of Ifape Legislature is to prevail 
cited Sae. Abf^^. t^.Leacli, <^ Xaw^ ^QP* He referred to 
many other repealing taws in |j|ie Vcode af t^b United Bta^eSy 
where savings had 4)eai made aa to ^offences prasioody comr 
-knitted. 3 rol; kaws^.ldO. tf Idetf^ 90..5B. 3. 61. 4 {dem, 4M. 
5 Idem, 136. 3 Id^QQ, Mi 4 iikfla, 4^. . ^ 

'^ Se<;en4. That if-itUs <^e be^ppt witifln the^paoiriaa^ a(iii 
;the repaid doeaty^t pmvMt tfm pmseatotkn afterwards. The 
dbetidtie allies onl^ 4o casea.of 4lfei»on and &lon|[» S Hasrk. 
•«>. 1 Rfeinf30«. 1 Hale, 2^/5^5. il-Idem^ iW. , . ♦ 
.Third. I>efendaDt,ifiioi]n£atabieiind[e^^e'Ba9i^^ 
niaji^e under the genefiK^rixniBal L^tv; ibr i^ this case, the 
false ^ath was taken in^a deposicioa ta2ken under the aulliofitjr 
of the United Sfaies, as eirpgaiMn^ifc.tiie « aection of thiit 

<aw. • ' ^y-^ . V .. * ^-P^ • 

Fourths If not indictable .under either of those hnra| heiaagr 
be 6onvta^w-Cdihaman Laar, ihAfjjk^dkloAcomtraJSafrmam 
'•ftntii r H4e;.»9f^*if the Court 1»faa«M^ think the'CcKMftflO 
LawM«lit^iiit1mcourta6fahilU|utedStatM. - 

' He eoQ^pdiil, unae^tHefffkst head/that tbe caLecnfebn dt^m 
eotnndteiea wodld not be ciiBt|Mad-as }mi%mB any Ihiag night 
remain' to be done, amdMia «i%ht4iapy«tt in<ai iMKfty^icaaM» 
even aftav certiAcitte ^nanted, as if in e8t«ftall^|^pU iel teg> ai w i s 
ireat ID. remahttler, •lariosocnd to Ihe tapkriitiit^ifec. i^^ 

Under «he thhrd head, tiiat the feSdb^^oiiAiati^av.w^ 
not repealed by the Bankrupt .Lawf ts to p^ijuay? becattae not 

V • 


APRIL TERM^ 1804. 



incciiimt«it with it^ dted 1 Hale, 705. 4 Borr. 30M. htmh^ 
2S3. 1 Hawk* 306, Leaek, 501. 

Mr. Dickenon and Mr. Rawle, after arguing the mtUer of 
fikct to the jiuy, addressed the Court .and jury on the law* 
They contended} fini, that ihe false sweariag mofl^ be lanterU' 
to the i«Aie. 4 Black. 136. 1 Hawk. 331. Caa. C^ SKr Cr>« 
£iiz. 148.. It must be gHUSD with deliberatjuM, 1 SaHu 374> 8o, 
toes tf he totars imder-a fal^ impriaaion i'eap^tlkg Aie con- 
stxactioD of a {^aperydlr of hi^ t]|^ ii»4a fiat {^eijurf • I fapiiu 
Rep. 361. Now» m tins case, the iatempaory and inaweroi^jp 
applied to the timt of his ocraiiig and partiD|^ frith th# vwaself 
which was eDtUtihr ifteuterial.* TIm anawer waa asade hera^ 
immedsatel|r; tliia question ^m& pot without the de%ft4aAt^ 
taiung tioae, and as the lagai titl^^wnu, by the. hUI of aate^ in 
d^fendaal^ he inight iiave wat^nttf ' innijjieifcd Shu it made him 
t|ie ownoTf particuhu1|uas tj^e notte-gmis tat die vtm^ "mgi^ 
either aigned or eoderyd "by defendant. ' * . 

Ast^o evidence') \}iere nm^ tocenw^t in per)nry, be one 
credible witnea|, ipd strong evidenoe baaid^ -agfioioBt m the 
aiiiida.of t^e jury to jpaUblish tie gfplt. m Mod. t9S. OSmhtU 
the wnf y poaiti^ witness* is awt to be^^re^ed* 

WheM a statute ci;eatea a n^ (ifTenoOi, ait fixea the pnnidi* 

nian.t» the prosecution mnatjbe aigiiiiwt Jtbet-^stttnte. 10 Mocl. 

3esa Ck>. )$L 644. 3>|DA*7g. 3 Ld« J|a^ 99j/ 1 Barr. 643. 

4)4earrd0i6. Cowp.3V7. Leadh» 352. *$lie ^n^ishinent being 

4Wecen| under the fi^knspt.|lJhK*|roii^«^.it is under the 

pgipiad Criminal Law^andTiot atti|pu)«IUN$'^ttMi defendant can-^ 

net be indkte^ under the Iftttet^— disqual^ca^e^ u%der the 

general few, is to be pert oC the 'pwushment. In other caees,it 

'Vi not part of the aemenee^ .3. Siflk. 61^. Many pnrt!» of the fewa 

ef the United ^tes stffmred torohowiog the punishment of 

pes^uiy in eytiu^ca^s. 4 ro^ 427. V4i8. 3^to1.^S37. 3 Idem^ 

^31. 157.^W. 6-14Sin,il7. .. . . • . 

« Th^ repeal o£aJaw potting an offence, whether it be felony 

or niiwfeini lenji aweisin i P n a y all prosecutions against it, will)- 




ottt-«AaYii!|g for the purpose. 1 Black. Rep. 451. I Hale, 309. 
-391. InstbuKes where such savings have been introduced, 
' 4 vol. Laws, 446. 523« 541. 203. So similar saving io the ata* 
tiite 6 Ed. VI. eh. 13. As to the Common Law, Mr. Dickersoii 
'denied. Us Validity in the <Jnited States CourtS) but his col* 
leagua, Mr^ Kawle, admitted it. • ^ » 

.jr.^^JA^GiT'OA*, /. ckarged the jnry. As it is the opinkni 
•f the Court, that ite law if in %rour of the defendant, I shall 
spzpe the j\ipy and mysel^tha trouble of going through the evi- 
-dence. If| in the pinion of the jury,- it is insufficient to establish 
the fact against th^ delendaitt, I would iio( wish to disturb that 
Opinion^ if it has a diilerent operation, I shall not press it 
agdnst him. But I must notice 4>ne of the observations made 
bv Mr. Dickerson, last those "who heard it mifht sngpose Jit 
had received the coupten^cb of this Couit; and it is this* that 
the defendknt, having a bill of sale for Xhe brig, might, under 
the circumstances of die case, ha^ taken ^n oath that h* was 
ownar of hei^- without committing perjury. ' jk is true, that 
. where a mistake is shown to be the result of a miscohstruction 
of a paper, it is not perjuj^; lyt no suc^ misconstruction could 
take place in a caft lijce thi^ The oath must be considered in 
x^fevence to the subject and occasion of it. It was taken for 
the purpose of^isc|osingjthe property and effects belonging to 
the bankrupt; •The defendi^t^ if Daniel's evidence is bebeved, 
was a mere noa^laal i^yne^ nAd^ so with- his own consenty and 
with a ^iew, undaiAtoad bj him, to cq^er Daniel's ptaopertf 
under his nan^. ^ %x^4io sense of the word eot^d he suppose 
that he owned,' or had a property in the vessel. Such a doc- 
Ifine would ddEeai the important provisions of our navigation 
law, if a citizen might covev the pm|iMty o^ aliens, and yet 
safely swear that he was«the ow/ier. «t • .« •» 

Every offence for which a man is hidic\eflf must' be laid ^ 
against some law, and it must be ahoy n (o cqme within it. • 
Such law may be the general uBWVtCan.ofC'^taainw laW)or th^ 

APRIL TERM, 1804. 89 

> ■ ,1 ■ ■ . 


Statute law. The offence must notfbniy come unthin the terms 
of such lawy but the law itself roust, at the^time, be subsisting. 
It is a clear rule, that if a' statute crea^ an offence, and is then 
repealed, do prosecution can be institi4ed for any offence com- 
mitted against the statute, previous to its repeal. The end of 
punishment is not only to Correct the offender, but to deter 
others from committing like offences. But, if the Legislature 
has ceased to consider the act in the'Hght of an offence, those 
purposes are no longer to be answered, and punishment is then 
unnecessary. Perjury is said to be malum in 9e. False oaths 
of all kinds are prohibited hf the divine law ; bat civil institu- . 
tions punish them only in certain cases, and upon reasons of 
golicy. A fidse oath taken before the commissioners of bank- 
ruptcy, was declared to be perjury, and subjected ^e offender 
to punislmient ; but, the moment th% law was repealed, it re- 
mained a false oath, but ceased to be to (^ence punishable by 
ittunicipal Iaw» There are many oflilnces that are mala in ee^ 
which are not prohibited by bumaii iaw3> and, therefore, if in 
any case they should, by sucK laws, be deemed criminal and 
made punishable, the repeal of those laws places the ac^ com- "^ 
mitted under them, upgn the same.^grouod as they were before 
fhe laws passed. * * ' ' 

• As to civil rights, the tule is, tfUMt rights acquired under» or 
barred by an existing law, are ngt djefoat^d by the repeal of the 
law. V . 

In short, the cases which were ched at the bar, a&d the Ian- 
^ag^which the Legislature of the Upited States-has used in 
Ae cases cited, when it has intend^ to except out of tiie ope- 
ration of the repealing law, prosecUtiMi for offences committed, 
before the repeal, are (X>nclu«ive loahow that the ahov^ ,doc-' 
trine is npt to lie kalian. * % 

The neatt <)«f«doi|^ is, to what extent was the Bankrupt Law 
repeided by the Act of the 19th of December, 1803? Until we 
come to the proiviso, iti^ aKefteral and absolute repeal. Had 
it shaped iM^t fi^nt Touldhare been the consequence I That 

M , .' - 


• * * « ■ #>^ • • ■_ 

.«««i*.«/ ■■•■•,."- 

■i ill" 


lA commiafllons tKen p»ii<A4ecl in, to various poimig'^ff iMAr-' 
eKecutioiH must hAvt been almmed, aiid ihfniiYe iMsehief Ih^HC; 
l34ften produced. A proYko is aivafs intended ta Hmit tfa4f * 
generality ef the enacting ctoiiieej^ or tooave or except 'teMHilM 
eases out of its operation. If the |>roTi8o be amlH:guous9 ii| 
ticplanation naay beat be ol^alaed by understaddiag ti^e sco^ 
of the enacting clause^ and dAseo^ering the mischief to be ftfc» 
medied Now, here the mischief would have been wKat f haMft 
stated, and the proviso applies pfeciselj tOy and remedies-it. bt* 
^foehres, tiiat «the repeal- shall in no wise affect the exacuftiflfe . 
cf toy Commission of bankoiptdj, which may have been issQe#.* 
prior to the passing of this act, but every such eemmlsakiii M0^ 
be ptoceeded in, and folly executed, as if this act had not %q0|| * 
passed." The commissions then are still to go until' AnMf 
executed. But wtat has 'the punishment ef a pearjuijr pMMr j^ 
ously committed, to do with the progress of ^ch a ccMuiuflullMi 
te its final- executicm ? I Hiave ne* doubt, though it is not no^- 
necessary to decide the point, thjit even m the de&ntoit's oen^-^ 
mission^ though he has obtained a certificate, yet if it be wot 4^ 
he considered as finally execulted) and hi aH other commissMlv^ 
not so executed, should perjury be comy^itted after the reptaii 
it may be punished;' because if otherwi^^ it would affeel thl|« 
final execution. 'The dHfeMAco id this: in the constructidH • 
which I give to the proviso, I |fiv<f^ » proapettive operatMy 
that contended for by the Ajttome^, fjives It a retfiaspdeil##- ' 
crperationj a coastructimi nbt fiivoured*'lA civili, illheltliaaf» 
erimlnai ci^. In' the eases of future ^perjury, the tM fHnStk- • 
ing Ihem would afiect ttte' execution 'of the commissio», b«^ 
nil so as to perjuries previously committed. Upon thr whM^ < 
if the Leg^aCure intended'to except frdm l^e operation of tM 
repealing clhuse all cases where i^omsftlsiions Ina^ pveviouidy 
issued, it was easy to have expressed suchMftJeiMiMi "generlfiy, 
and MM confine the provisd to the exeet$iUm oiP commisBlSuat 
Mid in every instance where they Ad hftend to leave open Iftv 



■ ' «—'» : — *— 

pt<o86eutMHi» oAmces commkted b^^bn^ the lepeal, thfif hftVf^* 

declanfid it in pilaiii unanWigilima tertet« 

Uf thiGS^ the indifctiiiaBt caniiot ^e 8iipp#t«il «poii the fint 

coimt agatet tiie Jkoikfupi; Law, cao it be Kn^liaoed upon the 

cecond, as a|;aiiuit th^ ga£cr^'Griftiii|4 Lmt of the Uaited 


ft m 

If the case OMuM be b^uijbt ^kMtv wicfcia the lAih seciMi 
of this law, DO Anbt Uvtt the judktaa^Dt nifht be «u|ipoifeQ4. 
Sut this section pkinlf refers to ^esfuries eommitted ia judiciaA 
proQoedisigii, irh^ther oraHf, oi^by df^poeiti^a. The wotdi M- 
iied VLp^m by the A ttom^ ein^> I tbiakf he oanatrued to exteni 
the oriase of 'pfiijiU7,to depositioas tsfcenaittikr tike 
Authority of ibe United Stat^ becainv that would ha U^ «iato 
4te aame £tdse oath i^t^sj^juiA puiishshle if piU fpl6 the farm 
4Hr a deposjtabii, which would ha dbiputtiahabia if 9vaD.ora^fi 
Dda would be a gaaat abswdttf ; ^bii% if it beoonilMed to ex* 
imd fo deffositienaMiheBaii judhaal ^wacaadfaigs, thea the ooa^ 
aeqiusaoe -will b% thai false ^atha taken in |ud}c>al proceeding;!!, 
•whetter onJlf *r bf depesitieitf, ^abaa taken under the attthacit^ 
<if ah^ iUasted StalfSf asw decltoa^ to he^ perjury* Beiadea»if 
the constmctioB coofeadad ibr Jha corractt the aaaajr Jawa da- 
dariii^.admt ahodid h^.paifiicf hi paiiiailar cases, would have 
hean imnecessaiy. Aiyd Vhat is concrusive- upon this point is, 
.^Mtf^«dmittiBgtii|^conat9y[alaiyn,1fce,dafeod«it'has not eommit- 
tadtiMapwjteiy in anydeppsiti|}n; for the ankwar tali^en down by 
the ^re m p in this .case, th^fgh commitud by h«a to writings 
caooat be eUed a <fepcaition.' 

But if* the defendant cai^be io^iciai^ under tj^ geaaml law 
now, h%wght have becQ before the aapeal ofHhe Aaakmpt Law 
«*Mf so, he might upon conviction have been pankhed with fi^a* 
la^priscHuaant, and pillory ; alt^^oufh under the Bantrupt Law, 
the pvnehoaant was eonlned to impnapomeot ^nly, which 
iMPOTca ekhar that jdse oaths, taken in judicial proceedinufi, are 
not made punisiiahta by thie law in qoestioo ; or if they ware, 
that the law ^naad ^o^ths, takaa before commisaioQ^rB of bant' 





ruptcf , was repealed hy tkmt law ; for otherwise the leg^slatlire 
declaration of whs^t should be the punishment in such « case, 
would be defeatediby'the prior law, and the act of the public 
officer in preferring- to indict under it. A bankrupt, though 
deprived of every thing, lEhd tiierefore excused from paying a 
fine under the Bankrupt LaW| jnight be fined to the amount of 
800 dollars under Che g^aeral law. This cannot be «onteBded 
fer. If then the defendant could not have been indicted under 
the general law, had the Bankrupt Law been still in force, to 
say that he can be so indicted ifter the repeal, would be to place 
iliim in a worse sttuiltioif by the repeal than he was befi>re it, 
whereaa the effect of the repeal was to excuse, or radter to rea^ 
der him dispunishable 6>i?~this offence. 

If he cftnaet be indicted under either of those laws, can Ae 
^Commoh Law be pressecf into the service ? I think not; and 
fi>r the sane reasons I'haTe ju^ftgned yfhy he cannot be indicted 
under the general) crinunal lair. First, Bacause the Ck>«mcii 
Law description of perjury is, a false-oath taken in. some ju<Hciai 
proceeding in a matter material to the issue, and the punish* 
ment is fine and imptiflomncait.^ In this c^e the offence does 
not answecLthe description, «iid the punishment is different. 

. . n^ Jkrf found tht difentkm not guilty. 


f • 


APRIL TERM, 1 804. ; .^ \ 9$ ^ 


Kohne vs. The Insurance C<n[ipaD}r of North America. 


KoHXE vs. The Iksurance Company of North America. Mt^r /## 

The agreement of insurance having been made while both parties weie ig*- 
nonuit of the Ion, and tbe poHtsy ha,yhig been eompleted and executed* • 
. althoagh not delivei^ 1 H is vftlift atid Uiiibii •nO^D^ 
torecovcflr, iftbezebenootiifeTfalid^bj^ctioo. ' \ * . ^ * 

The omission to mention that 1h«^voya^ from a ^ecood pvt taadMnunienc^ . 
at the time of the insurance, tf the vessel was in good order at the |iaie of • 
her departure from th^ first port ; does ngt seem material. . ' . 

Whetfier the British regulations respecting the coloiial trade be conrfstent ** 

with' the h^ of nations or hot ; the e ffe d gM* them, ImdHhe dfeciadns ol" 
their Cowts upon tbem, bm llie wme to nesttldii^ a«lf they wterfe «o. - • 

If a coDoeafanetit that the cargo insured had been shipped at a tfloniaLfNni^ 
and had not been» landed in the United Stat«» wi^ nwtetial to^h^risk | 

. the facta ought to \f^ been disal^fied. 

If a foreign regulation be known oQly to the insure, he must ask for infor- 
matJon as to the 'filets ; if kftko%ii to the insured, he must disclose the same. 
Qt$ere. If these regfAitions arc not df genei^ notoriety, whether assurer or ^ 
ttsared is bouadjb ^iecJOno them, unles e^aptei n^ce of them is proved 

JL Bid was an aetioti of taover &r'# ^mlkj of insurance. It 
was admitted on botlf aides, that if the ag^ieemetti for insurance ^ ^ 
was perfected, anH the^fftaiaillf wt^ld.have recovered upon the 
policy, that the want qf it shtmld paodnbc-ttd iMkuIty. 

The case was^ tbat the pliiatiff directed lAs agent to effect 
aji snrtirance <in go«dt on board .the skip Oa^sden, from New- 
port in Rhode Island, to Port Fassage ^ifSpain. The agent, oi 
Saturday tHe L3th df October 1799, applied to* the president of 
^^ company, and^leTf with kfan the osders oflqaurafuce; wMeii 
were, apon the.cogoof the iMp^ at -anil from Newpott tt> Povt 
Fassagp ; ttae-alkip an excefient one, ^pper bottomed, Itc. lea. 
«!>Tlie agreement waa made «t per cent., ibr which a note wa$ 
. to Jgjfturen nMk ^§ipipvwe^ aiMirity. The agent l^ tbe^effice 
^>«'^^B|^ P^ttiBf WM filM 9p> but it was dooein a iMr hours 



Avoure the DcHcf i 

^ras tbe 'ptopertY 
and left Charles- 
to Laguira, witB 
JesUin ; Xhm sh^ took 
S &c. At X.«giura'«nd^ 
B^ OD the . day of 
I SptnUh coMid Ji| 

^ day of May I79I& 
G,ed a special pennji^ 
g]kM; tkiSt » t)>e-c«K 
S# oiM' *V Bdejld- 
ill^k. The duties 
C>arJ> wflpe«%lilariy 
ft iiij|i t»gk«n boarrf 
Kn«ort PMWgPt^iit 

i,ibr«W*B.'*«7^ »nd ' 
i^b« MM9M1 i ^ MIIBt 

^«iwd at N*«ii)H« 

|a^Eft«>|«MMd,ttie ui4k, 

I' I' 1^ H i=l^: { ± MltH^l^l^i^l^l^l^l^l 

it Nt*port in 




ii ■ III 

Kohne tw. The Insunmce Company of North America. 

— — ^— — ■!■ !■ IM ■III) ■ I ■ ■ ■ ■ .III I I I ■^— 1111 I I — M^— —— ^11^— 

• I 

loit -VFith the law of nations, and eren if it be a regulation of that 
government, derogatory to the law of nations, still the disclosure 
of the fact was necessary; aad that to avoid the charge of a di- 
i^t*ti%de| not only^e duties should be paid in the country of 
^ {his neutvals, itatthe cargo should be landed. 3 Rob. Rep. 78. 
3 Roh. Rep. IM. Marsh. 352. Rob. Rep. Case of the Emanuel . 
3 Ro)>..RIp. 301. The Polly. Parke 195. 

For the plaintiff it was answered, 
'J. That the contract was compl||:e, and the policy executed^ 
b^re ndtice of 'the loss. 

3. That the misrepresenftitiDn,re8)>ect]ngt%eomnnieiicement 
of the voyage, was immalteriii. CiS|4 the case tji Pine -&%, Pratt^ 
'Supreme Cofirt o^ Penntflvania. As to the case of Hodgson 
v«. Richanlson^ the goods were never landed at Genoa, were 
peridlable in theit fiftlure, and the insurers were lihble to ave- 
rage. In thisxsb^, they were free of averages, were landed at- 
Newport in geod ord^r, and taken on board'ii^ hke order. 

3. The ves^l ^as in exfcAlbnt orA^ wblki she left Newport^ 
and at the time tb^ iostiradice was made', dnd therefore not ne* 
cessary to diftAose her'haviiig'sMLck on the bd. 

4.^ Neutral nations are not bound by the Ai4)itrary decisions of 
the belligerept powdrt ; aniHhe instmetidbs of the king respect- 
ing the trade of Tieut Al» are npt w Granted by the law of nations. • 
Cases cited,'3 DaR. 374. 3 Rob.' Rep. 13. 6. 16$. 301. 1 Reb. 
349. Mersh. 317. 4 Robi lOO. 3 Idem, i'Si 154. 186. 3 idem, 
84. The liiitructions in question were giveo^ 1796, and the 
decisions 6r Sir 'William 3$;ott ere bottomed oft ^em. Ih&f 
also cited on this point, 8 T. Ilep. 434. \ East. Rep. 663. Ld. 
Hawkesbury's Rep. on the conduct of Qreat BriMln in Veq>ect 
\a neutrals. But if the iact W9» material, it was the duty of the ' 
underwriter to ask for information. 3 Bosanq. % PuH. SiOi- 

WASHIJfQ TO^ J. cttarged the jury. 
The first objection to this action was not much relied upon 
. 4>y the defimdant's couoiely and there is certaialf nothing in it. 



* * ,♦ t 'APRIL TERM, ia04. ;9T 

I ^ • 

Kohneiw. The Iiisuiance Compusy of North America* 
> I II f I. I ■ ■■ 

Ther^ is no charge of uBfairoess on the part of the agent of tl|e \ 
plaintiff; nor is it pretended that he knew of the loss oo the 1 21^^ ) 
"when he waited upon the president of the insurance companjF*^ 
It appears that every thi^g was agreed upon; <ind althou^ oa 
' account of.the fever then in the city, he did not wfti^ tp receive 
the policy ; yet it was immediately after he left ^be office SUf^ 
' up and signed by the prewdent,' and has been produced on t)ie 

trial* The contract therefore .was not inchoate, Imi peifectef^ ^ 
3 tefore notice of the capture by either of the parties. y 

The objections to th^ recovery relied upon are, a materia 
niisiepreseiftation^ and a cgncealzneat of two 6^xm lut^^ to 
the risk* . « 

The misr^resentation is stated to be in reiip«^ to the. 091a- 
idencement of the veyage. It must be adoiittejd, Uiat th«fe W9^ 
M, misrepresentation; but unless it w^niaterial to ^e risk, it 10 
j^ot sufficient to avoid the policy. , I c^^npt p^^eivts what ofu^ 
sequence it was to the underwriters, to be ipformed whether 
the voyage commenced at Charleston 01- at t^e«0|i<^u The 
fgrgo w^as put on board at Newport in g<^d order, and the in- ' 
aurers were free of average; whicl^wae not the case in Uodgaoa 
^nd Richaidaon. Besides, that cs^^ tul*n^ upon a U4^ge proved 
jon the trial, that if the infmrance^waa ejected in the middle of 
9 voyage, it was,nec^«yury to disdose tb^ i^cJvaatiNiceu ^ no ^uch usage has be4i piK^ed. • ^ 

The next objectimi is^ copqjrTil^MWt irf the ii^ery th\e vessel 
sustained from Charleaton to Newp^yr^. The iiutter (or the , 
jury to decide on lk|« whether, at the ttp^ the risk covameacedf 
the vessel deserved the chwacter given of her. If the jury 
should be of opmion that she d^di \h0 i^^cident that hi^pened 
$0 her in her voyage from Chairleatp% does nf^t, to the Court, 
s^em qiaterial. , * • - 

The Itfil and must jmportff^t (^bjeos^^, oedxaioui to he conai- 
.4cred. tt is, ^hat the d^ fcy d^i»t sl^uJ^ ba^o; disclosed the 'wur 
porMttion ^oufi^ I^agiura to Cjb«riea^»»44a»d th« not lan^^ ^ 
the cargo. A gvent deal Jmui been laM o^ the rip^hts jofj^^Uti^ 

"NT ' • • * 

• • « 

9S PENNSYLVANIA, * / • * * , 


Kjoiine w. The Insunnce Con^any of North Aiperic*. ^ 


, natioiis ; and the principle contended for by the British govefh- 
ment, has been pronounced repugnant to the laws of nations*! 1.. 
mean not to enter into the coBsidMation of this queatioii) be- 
cause, whether the principle averted by the British govem- 
ment and practised by its CeurtS) be authorized or not by the 
laws of nations; yet tiie consequence to neutrals is the same. 
If they act improperly, the matter must be adjusted between 
. that and our nation ; but as to tin individuals of our nationfAh^ 
.certainly incur a risk if they trade in contravention of the vafc% 
thus establi^ed) whether it be right or wrong. 

The principle cgntended for. is^ that neutral nations shall iiot 
trad^g dfreeily^ in time of war^from the colonies of one of the 
belligerent yewov in Europe^ unless, to the nation to which the 
neutrfd bekmgsi or carry on a trade from-' such colonies to the 
mother country, in time of war, which in time of peace is inter- 
dieted. The fiist branch of the question then is; if the oon* 
cealment was material to the risk, was the plaintiff bound to 
disclose it, tur was the insurer ^|o ask for information ? 

An inauranee is a eootract 9f indemnity, and the assurer i^;rees 
to stand in the place of the -assured, and to take therisk upon 
himself* It is tiierefore necessury that the latter should possess 
the fanner with It knowla igs of evevy fac^with which he isao* 
^uainted, material to the riakf that he may know how to esti* 
mate the^premiita. If a fordl^ regulation, whieh may aflfect - 
the risk, be known only to^the insurer, he must ask for inform 
mation, But if knowaidso to the assured, it is his duty to state 
such facts as pay be material, to enaUe the insurer to see the 
extent of the hazard to whkh such regidation expaam him. 
The absurdity, stated in' argument, if the««ssuved should be 
obliged to inform himself of all the varioua regulations of the 
different ^lligerqit powers which may endanger his property > 
is not greater than to lay tiie same burden on the shoulders of 
die Insurer* But in neither case deea the principle a|^ly, un^ 
less sudii regulatiooa be puUio and generally knoioi, or if not 
so, can be proved to have beeo^ known by one party and not by 
the other ; in whkh case* the assurer, if he oaly knows of it. 


^ -r li' 



f • I 

1. . •-•.•. 

*• • JVPl 

^PRIL TERIt, "t804. , - ^ ; »» 



i,4 ««i. Kohie tifcflWInfaniweCaaiiMiJ^ of North Aioenca. 


inus7i^i|p%ie mk u^on iRmylf ; and if known oaif to the as* 
sured, nns a fraud iflie does not disclose it. 

lUe second bn^i^h of the queAion is, was the nature of the 
'car|;o)kdb the not landing it^ Charleston, matetial to the risks 
or i#otlfer words, was there a bonajldt importation into Charles- 
ton, Xp a^id the charge of \ direct trade from Li^:ttira to Spain I 
This must d^jund .upon the evidence. Jt is clear, that if the 

.^esaid lpd\nere)y called at Charieston, the circnmstance of stop; 

pii% there would not haVe amounted to an impoitaticgi into that 

. Mace. The cases cited frem Robuison's ReportSf admit jttat pay-* 

,, nikfldatisa arid landing, arefkrlMa JMe evidenGf^ of a bonajide 

imjportatioii ; but these are only dveun^tanees, whicA may b^ re- 

jl^elled by other evidence, showing ithat the impoKation t^as not 
bohajit^ei and I confBss I cannot see w4iy the pajipBg duties may * 
^ afford satjpfiictory evidence of a bonajide importatioi^ if othae 
eiicumstances concur to ]in>ve4t so; though' the case is car* 
tainl^ not sa strong as if the cargo ware landed. The evidaoe(9 . 


reQ^d upon to prove that this was a dkect Jjpdlsg^ fi|Q(Q(| a colo* •. 

dy of Sptai to the mother country, is ytainiy viijpi syiiung. The 

^ passport to Laguira; tho paaipoft ffom thepce to Charleston^ 

^ the permission not to land,eqpeiijthe ground that this is osually 

granted where the cargo is intended te be i«-«sportMiftr beoe^ 

it of dmwback ; the p aa sp ort aad cavtiiegl^ 'of Aho Spani^ 

•eonsul at Charleston, found amdngat xkmpa^fm^ mH descitfiiBg 

the cargo as coming flnom Lagilba,^and intended 9m flpain; 

afford evidence of the original desfination of thfe cargo, very 

• difficult to be reconciled with the. assertion of a b»na Jlde im- 

fortatloB into Charleston. * • . • 

ICthtf jufy^ upon diat evidence, opinieb, tBat the call- 
iaig «| Charleston, and paying or bonding the* duties, under all 
ile prcnmstances of tUs case; ware wi|& ^ view to proceed oi| 
}^ i^aiDi, or to )and sehie of the ca»go and take in other articles ; 
^ ilpAe yttf difficult to maintain* the ergmnoit, that the cirr 
cu msu to o es were iibm^terial to the lisl^ and in that pase their 
•verdict esgfat to be ibr the defoolaM^i < " '\ 

^ 7^e Jury fount /^ 4k€ filainifff 

• * 



* I' '• " ♦ 


•^ ? 







CBoiL B<;8HROD 'WASHDIGT^M; AflBOciate justice of th^ • 
nauvT, < Suprejpe Gouit. . • •• ♦ 

^ CHon. HICHARB PETERS, lAstri^ Judg«. -^ ^ ^" 

Perrt et a^. Assignees of NanteS) a Bankruft, ^ 

Crammond et al. Executors of Cat, suRviviifo Partner 
* ■ * "OF Clow & Cay. 



When an accommodafirn bill* goes into tTie liands of a hona fidt liolder* 

even with notice of its particular* chj^rft)5teT, he is entitled to recover &e 

ainCnitit theteof fton the dftiwei*. 
WB^ dnAHm tat tm Urgtl OMMlMMlion, or fv one which hqipeas to iaii^ 

caavDt i>e eniirced, hy «•» kavuig notice of, their chancier. 
BiBii Mivoied after the deatb-of the drawer, to a penon who had nude 
* advances upon their faith, to the drawer, who had them in his possession, 

for the purpose of raising money fbr the drawer \ may be enforced ag^nst 

the representatives of the drawfer. 

• 4 

± HIS suit was brought by the assignees of Nmtes, stfWiving 
partner of Muilman 8c Company, to recover dS 1 8,000 flteHnig/ ■ 

the amount of fortyi^seven bins of exchange, with damages a^ 
the rate of twenty per cent. The case, from the evidence, V«< 
as follows: Josepb Ha'dfiefd, in London, was the conMeytSiA 
friend of. Clow tc Cay of Philadelphia, ■ received their remk* 
tances, and «egothited tkeir bu^ess to a kci^e Kmouiit. Thxl • 


• • • 

J Peirjr AaL i». OranniflDdotftL 

\^^r^ ^ jy _ _ * 

AffainM^ Cl>w'& Caf getting comiderftbly eaUMfraised, tail 

H^Md, having exhausted hia higenuity to keep their cre«fi( 

afloatj by accepting wmA ta|atog u^ a great nnmlier of bills 

drawn on him and others; at fcoigth adrked htm to send on to 

niiB a number of biila ^rawn upon him^ Hadfidd^ in iBivour of 

- any one^f his cierksy varying the nasM^ iriiich he^ if adfieidb 

"^ could, use as occaaira mi^t require, to raiaa maney^ until ra» 

teillbicea of a more substantial kind could cona. bi ptirsuancQ 

of tnis ^dy;ce) the biHa in ^uestxm were sent Janrand^ drmm 

* ^n fiadfield, at siM^ dafs, part of diem in fctour of Mafdock, 

Ittid part in favour of ReMiek, two of the clatka of Ctor 8t Cay^ 

^' •, and w^e endorsed in blank. They wete received by HadSoli 

^ ^*«February and March, and reniabied in Ids poa acsi ian until 

flie transfer to Nantea took ]^ace. Af idhMMi h Cwnpanji wera 

, the friends of Hadfield, and enabled Idas, by great adMUSCtfSy Mm 

4ceep up not only his own credit, but tbat of Clow k Cay; ^aiioi 

b^ lettbr to Muihnan 8c Conpsaf, m Mavah or Apitt, agraad 

^ * to guaranty any negotiations which might tabs place between 

^em and'Hadfield, their friend^ andi <m -tlKtr aiBOount, subaa* 

quent lb this letter, and on tk» ground of k^ vis. in April and 

May, 1793, upwards of £19^W> ware advanced by MuBnjan k. 

Company to Hgdfield, which was by bias afifdiod ta.the use of 

» a Clow k Cay. It appeara, by tm |he Mast«>, 

4^^ suit instttotddin the Court of Chsnaecy, hi IsiglMsrli^lhfr 

, defen^ts, agunst the plaintiffs and Hatf^ ; tlMl» d^Mig «ho 

f ^months 6f April, May, June, July, and August, W%$i balancea, 

' fix>m Jt6fi00 to i^l 7,000, were due Irom Clow k Cay to Had- 

field; but, by pe mi tt a neea made in Augiist and September, t)i% 

wtere dischaiged: and, finally, a balance of about J^SfiOO was 

iibpoilad to be due from fiadftsM to Ch>w k Cay,* without in- 

* oiadii%,fiito billa in question. 

CiaB^*4ied on the 34tli of Sepieater, oinldch Hadfield aM 

MaMn h^prd the last of OctobiAv di^ it was cmfiimf d the Mi 

of November, '179 3 '^ on whiah d^y, 'also,^ka death of Cay ymm 

:yMk>wii5 aasd N iiii ; taiowia^ Hat fti# dl d bad Jp his f«pin- 



» ^ 

• % 


• <r 


I08 • FENNSYLVANIA,.. • , » '■ 

Peity et al. m* Cmmnoiid et«L ' 

aion the bflls in question, and tbe purpose for which tbejv^were 
deposited with him; he, on the 6th oi November, demanded.of . I 

Hadfidid, that he would accept those bills as of the 4th of Sep- ^ 

tember, that they might be protested on that day, viz. the 6th 
November, afid delivered to him, Nantes, as a further and i 

better security tor Hm advances made by Muilman & Company, * ' 
Sat the use of Clow 8c Cay. All this w%is accordingly done, and^ ' '' 
tiie bilb were then sent over here to be put in suit. At a fRib- 
sequent period, an arbitration took place between Nam^es ttid 
Hadfield, and a balance found due from the latter to the former of ^ 
the ^19,000 ; and £^0% said to have been advanced to Hadfield, 
and by him applied to the use of Clow Sc Cay ; but it.does not 
appear hj jthis award, or by the report of the Master in tbe sdit « 
above ment]oned,^tliat this d6 19,000 was, or was not introduced 
kMo tike account between Hadfield and Clow & Cay. Muilman , \ 

U Company kept no account whatever. with Clow 8c Cay;* 
and, by Hadfidd'a accounla, none of his advances are stated as 
being made by Muilman 8c Company, but generally as by him- * ^ 
self. Hadfield, in his answer to the defendants' bill, and in his^ 
deposition taken in this cause; states, that the advances were 
made ^ for the use of Clow 8c Cay, and were so applied; and, ^ 
that the biUs m question were d^vered to Nantes^ in order to 
gl?e hkn a priority against the estate of Clow 8c Cay ; and t • 
that die ametmt of them was to be carried to the credit of Had-^ 
field, on account of the advances made by Muilman 8c Com- . 
pany to him for the use of Clow 8c Cay, and otherwUej and^' • 
by that means, to lessen the balance due fhim Clow 8c Cay to 
hadfield, or, in other words, the balance due from Hadftdd to 
Muilman 8c Company. 

It further appeared by the evidence, that Hadfield commu- * 
nicated, at all times, freely and fully, to Muilman &c CqApany^ *^ 
respecting the a&ira of Clow 8c Cay ; and that the remittances 
made by Clow 8c Cay to H«tf&eld, passed into the, hands xtf 
Muilman k Company. ' - 

. Hadfield, in his answer and dc^itioD, sMes; that t|ie bills 


^P^IL IIERM, 1864. * los 

» Petiy el al. w. Cnnmumd ct aL 

-r; ?^ 

^ m 

vere deposited with him for his own ifidemnificatioii) as well m « 
to ^nable him to obtain advances. 

Wh^ Hadfield delivered the bills to Nantes, it was agreed 
that Kai^s should proceed immediately against Clow & Ca^; 
^ it not being intended that he, Hadfieldi was to pay when they 
^ecame du6. 
/ ^ The defendants' counsel objected to the recovery : 

1. That these were accommodation bills, sent to Hadfield for 
^ particular purpose, and used for a different one; and tUs 

* h^g known to Nantes, he stood in the shoes of Hadfield^ and 

could not recover. The letter from Hadfield to Clow 8c Cay* 

• of November, 1792, calling for these bills, states, that «< they 

* may be useful to support our mutual credit^** which shows that* 

they were not merely for the use of Clow fc Cay; and, theror 

.-fore, passed to Hadfield without consideration, or with 9k know 

11 ' ledge that they were not to return here as protested hills* Thqr 

cited, 3 T. Rep. 80. 

2. The agreement of Nantes, not tb resort to Hadfield, dMf 
feat^ his remedy against the drawer, as such an agreem^t la 

• repugnant to the acceptance, which binds the acceptor iJmo- 
lutely to pay; and such a discharge defeats the remedy over 
which the drawer might hare* Chitty, 83. 84. 3 Brow. Ch. 
Rep. 1. 2 Bosanq. & Pull. 63. 4 Ves. jun. 829. 

' 3. Th^ debt due from Clow & Cay, if it existed at all, waa 

• - for the advances made to Hadfield on then* account, and on the 

• foot'of the guanntee; and it was, therefore, a mere simple 
^contract debt^; and hadfield, as an agent, had no right, after the 
death of' Clow h Cay, tp change the nature and dignity of the 
debt, to one upon protested bills of exchange ; which, by the 

• laws of Pennsylvania, have a preference over other debts due 
frpm a deceased person. The authority of the agent was super- 
seded by the death of Clow 8c Cay, and notice thereof to the 

4. The antedadng the acceptance. was an irregularity, cottr 
trary to the usual course of mercantile negotiations; andt upon 


• • • < » 

*io4 pennsylvaiAa, * . , t • 


Pecry et aL m. Cjammond ^t «1. ' 

> this grottod, the plahit^A cannot recover. It was precipitating 
the time of payment, which the drawer coald not lawfully do. 

In answer to these objections by the plaiatiffe' counsel, it 
was said: ^ . 

I. That though these may be called accommodatipn bills,^ 
yet, they were for the accommodation of the drawersj and |o 
indemnify the drawee for his own advances, or to enable him 
to raise money upon; consequently, not only Hadfield, ,but any 
person making such advances, were entitled to recover upo^ 
them. Hacifield, as agent, had a lien for any balance due him, ^ 
as well on these bills as upon any other property of the drawers 
in his hands. Cowp. Rep. 351. , 

* 3. The doctrine was^ admitted, in cases where, by the dis* 
charge of the drawer, or a prior endorser, you destroy the re- ' 
medy over which the endorsi^e might have. That case is unlft^ 
the present; for Hadfield, being a creditor of the drawers, to' ^- 
the full amount of the advances made by Mailman & Company 
ibr their use, the dischtirge of the drawee, could not, in any 
event, aiFect the rights of Clow & Cay. 

3. The bills being deposited with Hadfield, for the purposes 
before mentioned, he had an interest coupled with his powers 
ts agent, and might endorse the notes for the purpose of his 
own indemnifisation, as well after, as before the death Of the 
drawers* 2 East. 237. 

4. In cases of bills regularly negotiated, the doctrine con*^ 
tended for is admitted. But this is a peculiar case ; and th(v 
'purpose for which the bills were lodged, impliedly authorized 
Hadfield to accept or use them, in any manner most likelf to 
effbct those purposes. 

JVJSBIJ^GTOJSrj J^, charged the jury. These have been 
called accommocUtion biilst.«nd, in one sense of the terra, thfijr 
may be so considered ; but it does not follow, that an endorafl^ 
'Of them, for a valuable consideration, though with full notice 
of every circumstance attending them, may not recover. If they 


.*• • 

/ •*. 

t. . • • 

. 108' 

• • • • 



t. • 

^ ti 

Perry et al. tw. Crammond et al. 

at least one much to be" wondered- at, that in no part orHad-**" 
field's deposition or ans!iver, does he state that the advances 
made by Muilman & Co., and applied to the use of Clow & Cay, 
were not debited ki his account with the'latter; and in his dc-' 
position he states, that the amount of the bills delivered to . 
Nantes, was to be carried to the credit of him, Hadiield, o|^ 
account of advanqes by Muilman & Co. to him, for the use o^ 
Clow & CajT, and otherwise^ so that it is left to' conjecture, from 
this impression, which sum remained unpaid of the advanees • 
made by Muilman & Co., and what portion of these bills were 
io be applied to the credir of other accounts. - 

As to the objection, on thcf ground of the acceptance being- 
antedated, as well as other irregularities attending the negotia-' 
tion of the bills, 4 will not say, that they would be fatal in a 
transaction so pecjiliai' in its nature as the present, if Nantes 
appeared to liATe b^en |i 4air bona Jide pmrchaseri upon the , 
gyround of a debt due ftx>m' Hadiield to him for money advanced 
to him for Clow & Cay, and from them to Hadfield, still remain-^ 4 
ing unpaid ; because froi%|he nature of the trust reposed in, , * 
Hadfield, he could not easily negotiate them in the ordinary . ' 
way, to answer ^he purposes, for which, they were "deposited . 
with him. • ' • ^ l» 

t The question then, for the uiry, will l)e, whether Hadfield ^ 
was a creditor of Clo«i^ & £a7, fer advances to the amomit of* 
the bills in question; so as tojauthoriz^him or his endorsee t^ ^ 
recover upon the ground of indemnity. If not, the. verdict » 
Ought to be for the defendant ; if oth^piirise, for the plaintiff. « / 

» * •^•* Verdict for the defendant. ^ ^^ 

• • 


Ingersoll, Lewis, and Binney. for plaii 
Edward Tilghman, and'RamB) for defendant. 


♦ « 



Leasee of Hukiekoper vs, Buiru». 


2%^ promso in the Act of 1792, only dispenses with th^ibrfeltare incuin^, 
accoiding* to the law, by not makiof^ the settlem^t, and 'continuing it|- 
tmi/dn and during the time prescribed by tlie enacting cjause; andj%quires 
tliat it must be made as soon as the prevention ceaies. 

Tlie prevention to settle upon lands in "the new purchase," continued un- 
til the end of the year 1795; and after that timej^ a'feasonable time should 
be allowed to those who claimed titles to havis ^^thin the same, for pre- 
paring to make settlements. tf 

A waiTant and survey of lands witliln "the new.[A^pchase,*^ without a com- 
phance with the teitns thereof, enjoining a settlement of the land, would" 
not be suflficicut to maintain an ejectment. .^ . 

X HIS ejcctnient was brought to fccovcr fouf hundred acrtbs 
of land, situated on Lake Erie; in the triangle conveyed by the 
United States to the Siat« of Pennsylvania, in March 1792. 

Under the Act of April 1792, passed by that State, authoriz- 
ing Die sale and settlement of this tract of country, three hun- 
dred and ninety warrants, of 400 acres each, were taken out by 
a company under the name of " The Population Company;'* 
who, in the fall of 1792, delivered those warrants to the sur- 
veyor, to be laid upon the lands within the triangle; and ac-* . 
cordingly, in the spring of 1794, the warrants were surveyed,* 
by running lines, by actual survey, from north to south, quite t 
from the point of the triangle, eastward to the New -York line. 
These lines being protracted, the east and west lines were laid 
down, not by actual sun^ey, but separating the different tracts' ' 
on the plat by the intersections of the east and west lines. The 
surveyor returned this connected survey to the proper office ; 
. but finding that he had omitted to lay off the State reserve of 
two thousand acres, he was directed by the Surveyor General 
to lift the warrants laid upon the land': but finding that this'^ 
could not be done without altering most of the lines as laid 
down by the first survey, he went upon the land, and made a 
new and actual survey, in 1795, mariung^ all the Ikiea and cor* 
liers of the different tracts. ' 

, The warrant, which was laid upon the land in question in 

^ t 


« 1 

.» ^ 


*• »♦ lAPEIL TERM, 1804. Ill 

■• A » . Leasee of Huidekoper vs. ButTus. 

IT : : ^ > . 

# ^' 1795, was in the name of William Smith, druggist; and was 

laid^ in 1794, upon a tract some distance from that on which it 

, • ' was laiddu 1795. The first warrant, which was in the name of 

^ Marf Nicolson, was particularly described on air its sides; 

, ,and the other three hundred and eighty-nine warrants wer« 

^^ ' adjoining ; and adjoining each other. 

* ♦• The survey of M^9S being returned, a certificate, called ft 

^ ^prevention certificate, wad granted in the name of William 

" ^ ^ Smith, druggist, (as well as in all the other cases;) stating that 

he had been' prevented from settling by force of arms of the 

1^ eneniies of the United States, and that he and his assigns 

' ' have persisted in their endeavours to make such settlement* . 

n This was granted in September 1798, in pursuance of a regti« 

# lation of the Board of Property ; which prescribed this form of 

, • ^ certificate, and that patents should issuQ^ where the survefror 

\ -^ # and two justices should certify those facts. Certificates having 

■ been obtained as directed by the above regulations, patents 

# / issued to the managers of the Population Company, for all the 

♦ w lands laid off within the triangle, (except the reserved lands,) 

4.^ on the 6th of March 1799. . . 

^ The defendant, Burrus, claims by settlement under the Com- 

it " 


. ^ monwealih ; and adversely to the PopulatioB Company. 


^' /The points made by the plaintiff's counsel, wei^e*-* ; - 

• First. That the patent is conclusive as to the title of thtf 
plaintiff, against a tortious entry and settlement by the dc* 
fendant. . 

Secondly. That if the regularity or validity of the previous 
steps can now be inquired into, the plaintiffs were entitled to 
their patent; because, though no settleoicnt was made undea» 
the enacting part of the 9th section of the Act of Aprils 
- 1792;^ yet, the Population Company were prevented, 'first, by* 
the danger of doing so during the Indian war, and the hos- 
tilities committed in this country during that period ; and after^ 
wards, by the opposition of certain intruders, (amongst which 
the defendant was one,) wl^J associated themselves together in * 

4 • " *^ 

112 PENNSYLVANIA, > '^ •' 

Lessee of Huidekoper V8, Buirus. 

^\ K 

large bodies, drove away settlers placed there by the coinpany, ^ ; 
and deterred others from coming; and lastly, because -the de- 
fendant^ in 1795, with his associates, agpreed, with the agent of "^ '" • - 
the company, to take certain tracts under the company, (in * 

which the present was included,) upon certain t^ins agreed 
upon; that the defendant entered, in 1796, by virtue of this ' ' 
agreement, and afterwards disclaimed to hold under the com- * * 
pany, and held in opposition to them. In the construction of* ^ 
the 9th secdon of the Act of April, 1792, it was urged, that \ ^ 
persistance for two years was sufficient, under the proviso, to , 
save the forfeiture; or, if not so, if continued for five years, it jf 
.was sufficient* In either case, the plaintiff's light was pre- i 
served, as the compimy) after the war, persisted in making their I' 
settlements, but were prevented. t 

The plaintiff's right to recover, was resisted upon the follow- ^ • . 
ing objections : • ^ «' 

1st. That the 390 warrants were all taken out by the Popu- 4 
^lation Company, though in the names of different persons; . . • 
whereas the law does not contemplate any one person obtaining ^ ^ , 
'g warrant for more than o;)e tract. c * 

2d. The warrant in 1794, was surveyed on a different tract • . 
of land from that now in dispute; and, therefore, the surveyor,' ^ 

having executed his authority, could not resurvey, in 179^: ^^ * 
and it is ondef this last survey, that the land in question waSi f 
located. Th^e survey of 1794 was merely upon paper; and t{ie. i 

Act of Assembly of April, 1785, declares that the surveyor shall ' ^ 

go upon the ground, and mark all the lines and comers. 

3d. The condition of settlement is precedent to the vesting 
of the estate, and the plaintiff cannot recover until he has made 
a aettlement under the proviso in the 9th section. If not a con- 
ation precedent, it is a limitation to any settler upon £Mlure of. 
. Ae vrarrant holder 'to make the settlement, and no entry of 
ttie commonwealth is necessary. 2 Slacks. 165. Harg. Co. Lit. 
214. b. 

4th, The plaintiff was boimdy as soon as the impediment 







Leasee of Huidekoper vs. Bumis. 

• * 


part of the subject, because, if persistance is made a substitute 
for settlement, I shall endeavour to prove, that this aettlement 
ineans imftrovement^ and five years residence ; and if so, it is 
still incumbent on the plaintiff to show that he persisted for 
that time, in his endeavours to make and continue his settle- 
^ ment. But, as I never expect to hear this point better argued 
/ , ^han it has been, or to have a better opportunity of considering 
it'; I think it best to give an opinion upon it, that the parties 
, # -iinay either regulate themselves m respect of the other eject-* 
« ^ < xnents, or may take an excepdon, and have the point settled in 
the Supreme Court. 

I prefer the construction given by the counsel for the defend- 
ant, because it is more consistent with the acknowledged spirit 
•of the law, which was to encourage the population and improve- 
"ment of this country ; and it is liable to fewer difficulties, when 
. applied to the various cases, that may be supposed as occurring 
under the law. By this construction, settlement and improve-. 
^ ment are obtained instead o{ endeavours; and a precise criterion, 
as to the degree and continuance of those endeavours, is afford- 
#'i cd by the law itself, instead of being left to fancy and conjecture. 
If it be asked, how long is the warrant holder, (after a preven- 
^ • .tion has taken plstce,) to persist in his endeavours to make a * 
" settlement, the answeris afforded by the law itself, « until such 
* 'actual settlement is made ;" for to that object are the exertions 
lo be applied. If it be asked, how such actual settlement is to 

* be made ? it is again answered, by the enacting clause of this'- 
fc section,— by making certain improvciTients, and residing tiicre-* 

• * on for fivfe years aext Allowing the first settlement. 

■ If, on the othq^hand, these questions be put to those who 
0A support a contrary^construction, they Answer— First. T)iat the 
' persistance, if it continue- <wo yeare^ is a performance of thei| 
condition. * This," I think, cannot be snpportcdV for he is to 
jpersist in bis endeavours to make auch actuaf getilement tf« 
aforesaid^ which I take to mean residence as w^ti ts improve* 
ment; because the ninth section #l)as deelared vrhat an actuals 






ultivating . 
ing there- . 
so for the 
e persist- 
b>T which 
vhich the 
from this 

sided five • 
! enactiftg 
'ed by the 
of actual 
ady made 
time this 



:lf imagi- 
uch more 
might be 

: proviso, 
ive fears. 
but when 
ho argue 

ffhat part 
the per- 
larea that 
nt ; or in 
de there*' 


5: ' 

J S 

I : 'i '^ 


AX ^ 

dUferent parts 
ise very witnesses ■ 
atS| as the dango' 
: gmie bo Tar as to 

litted, did Dot 
d on xgaiDBt tltis 
plunder, ( 


Osat part of it, 




y%* » " 


• 'I 

Iff ; ] 



^9 CI 

^it ja- as 'cleaS, 
* UDd in virtue 
tr ttdurear, or 
tu CdmpaDft 15' 

•ratWitvJ ^t, Id 

jhenT fe M^ain 

Eof posseui(MS 

^Sn-I wlllhm 

^ ^ KDtioned in tb»- 

J J ^aummatkm oC 

n £)> Bii ioccptive' 




Leasee of Huidekoper f»« Bamit. 



''tiBe/uiidcv the^iivtutaiit, as witt- enable thMn to maiBCajn a po»- 
ie;BOiyacd<in* against a toiti^ni j potse sro r ; for this was eMcft- 
tu4»tD cijikbli them to perfoiw^ie condition. So, ahbough na 
ipnmf ft giv^^o'fix upon the defendant anj specific act oi vio- 
kfaai^ j[||^,jdChoygli the mere circumstance of hia being aako- 
ciaied wii» wMb^mf of intruders, would not make him a 
principal in '^ tresptsses they ikmimitted, unless he was 
Tftefipit I ytetftf a settlement of this tract was prevented hf this 
aQ(^i^.*it wp€la be highly unjust to permit the defendant to 
'avail .buaseli^of*the defence, now set up, under such drcum^ 
staipi^ ■ .- ' ^ 

•^ TAe Jury found a verdict for filaintij^. 

Ingendll,*Lewis, Ed. Tilghman, and Dallas, for plainliff. 
Win.**lS]ghiAaii, M. Levy, and Foster, for defendant. 

t ' '. ' See postN-Huidefcoper v$. M'Clean* 

4 • 


» • • 



> :: 

91 H 

n ^ M 


)■ left it to the 
3|d,t^e7 having 
^eVfrom inter- 
^Upcontroulablc . 
^ trial |nu3t be 
te<4^if Tcrdict, 
jfce. ■ * 

of thtf e^rt. 
[T aorel to line. 

'it ftlTfy to I«f 

iw which arirife 
Mes, poiotbtgr 
^ wtj or thf 

;] H 

s ^ 

Bietlennibe how Ute 

xdce is KKnetiiaeB 

||ut I btve atwty*. 

le pmilegu of the 

to leave the jurf 

lence; puticalu^ 

Qprpqsed, that by 

the Conrt, to set' 

[ should certainty ' 

rer "approved, ^ut, 

evidence to the 

Uhe verdict, though ' 

|fo|]ops, that a new 

frdict is agahilt evi- 

^ell as In that from 

Qciples, which guide 

Spect the optnioD <^ 

jirdict, in a doubtftil 

puon difFercnt fioin 

t be plainly Sgainat 

Bee, as this certainty 

A correctness oF the 

■I right that the case • 

jtuidered hj another 

Be objects of justice. 

t conceive noir tfie 

Cefits of a jury trial. 

Siueoce ^ould be a 

rtw correct; but this 

beard, before tuntm 


9, to pror>e that^new , 
^t was subipittfd to 

APBIL TERM, )9D4» l» 

— i^W— — *1^»— PMWm**— ■— ■— ^M^i I iiiiaa iiijii 

Wilfolr & FnOCM «t. The United 6t«teiu . 

WiixiNa &. FEAi7citf v«. Tps UNiTiOi Statb^; 

A is not the kdt of an American vesBet to an American citizeti, wfaSch ^ 
, tubje^^ts theyessel to a Ibifeitiiie 6f>%fer pxrvflftges; but ll« negkd ^ . 
oitf^fiaftettrivglMer, vheiith^rirBfaiAitUh^ caM^ gad the ]n«n* / 

siottiaf liie Actlif CoBgrei^ will ptmit th^ same to be obtaiiiaiL 

I ■ 

1 HIS iiD» an action (^d#bf i^on a ci^st^ii ho<)«(i, bond given - 
by th^^aj^^Mils^ for Becuring the di}ti9s<4ue upon the cargo * 
of the ^hip MiBfOttri) the propetty of tbe i^eUaatS) when she ^ . 
sailed from PhilluMpliia for-Ca^tont but which abip) before hfr 
teturdi and whillt at tfeai was in part sold by pairnie to certain ^ * 
persons^ citizens of the Vnited SM^%who> in like manmir, ih^- 
eold i}ietr share to the i4;>peUaat% {iter her return to poct^ bui « 
before het entry. These facts v^re disclosed to the coUe^tir * 
before &he was entered, and the appellanta ^iSpred tp take tboi 
oath) .required b^ tk*e 4,7th Sectiio of the Act ef Congfess, 
p»sed 'Tlst December 1792. ^\ 

The' cause was argued by Rawie Jqit the appd^ts, ^ * 
Mr.' Da()aB for appellee.; , * . ' '«* 

WASR&sre;rOJ^y J. The pi^mgs Id t%. <ywi| dUclM^ r . 
the above facts, and being very longi hilve ^et beeq J&k«A* * 
into very particularly by. die .Court; as it was.^|pee4 on both 
udes, that the only question wfB». whether Ibe^goodswi jSbrt^ij^ , 
in. the MissoHri) were subjeet to^p^y for^ip^ o/^^omm^ dutiesgt » 

t^ the lot secticuR of the Act conccniiBg the ^registering Jii4 
recording j^ ahi|>e or veseels> .passi^ 31st Py e m ber itd^ 
aH veiai||||^.iHUch stt^ld te i;«8|S]9red^ tbe ^irepr 
tkms of thirtlaiv^ w£|e i.o be d^qpiinat^ an)l d^enjed vc^fcli 
of the ilniiei Statta; and^Il tessdsjif thj ^ted Su$«s«v^ 
by law> eoticie^ t» certaki bteefiU ^md piiri)egeB» denied ^ 




WUlmgr & Feucis w. The United StKtei. 

. fiM*eigii ▼ewdhi ; prcnrided that those prlrileges should cease, 
UPbeneyer such vessel shoold cease to be owned, whMjf bf chi- 
'ztos of the United States, and to be commanded bf a citisen* 
The ship Missouri was registered according to law, and has 
never ceased to be owned or commanded bjr citizens ; so that 
ahecontxnued to be a ship of the United States, and entitled to 

, ; the privileges allowed to such vessels, at the time she returned 
*So port; unless she lost that character by the spJe made to citi- 
zens, during the tim^ of her being at sea. Whether such a 
consequence results firom that transaction, must depend upon 
.a conect (^onstmetie^ of the 14th»M:tion of the above law, with 
such ilustrations aa may be drawn from some other t>f the 
. setUons ; although I think the case may he decided upon that 
section, taken in conjunction with the first, 
, The first sentence of this section declares ; that wficn any 
registered vessel shall be sold to ^citizen, she shall be register- 
ed amew by her former nsme, or she shaU cease to be deemed a 
v^SSe^^ the United SKates ; and her fiMtner certificate'' of regis- 
frv'shall be4divered up to the proper officer, at the time the 

. ;iew registry^ applied for^ And, by the secomi sentence 6f the 

• 9 san^e secAnt^ the sale of such vessel is to be evidencM by an 

jawqpiwwit of writing, in the nature of a bUl of jnle, ^hich is 

* to f«(tit% the said certificate at length % or otherwisea nW te* 

•"gistry ciaiuiot be <^talned, without which, by the third sentenc^ 

g tfl[^ ve^ssl jp agt to be entitled to any of the priyllegea of a 

. t€ssel of the Umtetf Stales, 

' It isp-not eipy to foiac^e, why the want of a new registry 
staoi^ innbe fimt Mitence bwdoclared, within a parenthesis, a 

- , farMlwtl|^f the privilaflsaio whkh the vessel was emailed; and 
m^t^.deoitratido of the sime. consequence, upon the ssnie 
eii(cumi^ance,iaN>uld b^^aepeated.ln the third sr^nrn But 
Ite loiter is cA)^uslf timtjtfigy.; for if l&e foi«MrwBo«ld be. 
e^stnted ^dlNtroy tiochaiiscjb^jtlie vq^ael,if^ iMlan/ir |hat 

' Hi^'aale was ajAOa^ i^ iipw^unfec^sary sa r^cst, diat she 
4oui4 1M9X Uf tabsequ^Dt p«riod be cntillef to tluit charac* 



APRIL TERM, 1804. . ^ isr 

• • • 

Wiiliai^ & Fnoictt tv. The United States. 

ter*' The obviotts meaniog of both is, that the charatt«r Ahoulcl 
be lost, not upon the •aie^ buMipon the wle and neglect tb 
obtain a i^w r^gUiry. But bow is the new regisfty to be ob» 
takied \ By. producing to the collector a biU of sale, recitfeg a| 
leDg;th the old certiiieate of registry, and by deUresing isp^ at « 
the sane time, such old certificate. But that certificatei in e 
case like the present^ is at sea ; because the law so requires it^ ; 
and conseciQently the piurty has it not in his power to delWef ^ 
it up« 

If, however, this <nust be done, or the privileges of tbc^ittlferir 
can character of the vessel be lost ; their the law either teqwres 
tbe performanoe of an impossibility, which it is never supposed ' 
to intend; or it amounts to an absolute prohibition to our own . 
cstizMis, to tfispose of their vess^s to odier citizens, whes th^ 
are at sea* But from no pert of our navigation laws can it^ ' # 
collect such an intentioii, and. upon what policy is it, that vri * ' 
*c«n presume it ? If the cargo be privileged, mnU the mottieiif K 
^ sale, why qhould the privilege be lost in consequence of Hng 
sale to a citisen? But the truth is, itis not lost in consequencil . 
of tbe side; but the fiuling to obtain a new registry. If ^is 1^ 
.not done, the omission is psnisiied, a$ a/auitj by deprjbving^lhe 
vessel of her American chaiaeier. But cantha^be t4hd t 
fiittlt, which the party could not avoid, and wlleae^t wii# pro^ • 
duced by the injunctions of the Jaw Itself? No worse^bsnm^ 
quenoes would have resulted, if the sale had been m^Be to,^ 
foreigner ; and yet in the latter case, tbe LegbllLtuie /hj;iiiglM 
proper to declare the forfiutur e in express terms, and it aiiMs 
€0 inttttnie that the sale b made; but not sb if made to a ^tiaea. 

The fourth sentence of the same section is worthy of oetke. * 
If the^time of sale be the period, when the old certificate should 
be surrendered, and ifl^ benot then delivered tip, the owner is 
subject IP a penalty of 500 dollars; then the construction cob^ 
tended for by the District Attorney, net only :prohibits t&e s|Ae 
of a vessel afr sea by one citizen to another, on pain of forieitin^ 
the privilegjMT of the i^Dssel freo) ths| moment, But hi^icts upon 



. 4iliii a ^aydty ; nldiougb it b iitter^ jJl^K>Mibte that ]»« ooujd 

do th6.^thing^, for whicn he is 4« he pimishcKl. 

But, ft veAel no more ceatei to bw her Aiii|MPtc«% chiurecte^f 

by the act of o^Uiag her, thm by that of meUiig^ alMntiofi 
.^ in her coDatruction. Nowy suppoae the veMol shgtuld be ^ter« 

^df either in the port to which she beloog^ or in wf .other». 
. «rouM the lose her charaoCer, before it v|s in ti^ |>aw^ of ber 
' owueiB to if>plf for a new registry ? And, if not, wh^r ^all she 

lose it before the same application pould be made in conser 

* ^uiDC^'oFa sale? 

The provisioi^s of the 17th seotioo were intcsp4ed to forc^^ ' 
' \ dSiGova^gr of any aUenations of the vesael arhich spAy haye.b^b 
jKade, in order that it might be koowat whether the privilege - 
she had acquired) were continiiiAg. if il ap|^^N>ced« xbtm she 


« ' '•Jfttd been transferred to a foreigner, then her privileges were 
' « lost from that moment If sold to a citAT^^t then it would en.- 
^ %hle the custova house ofiicera to determiae,'Whe!Ji»er foreign • 

* flji^^doniMic duties should the p^M in futucp, in qaae a n^w 
.Wefl^8j^shoaMQethe:apt>fied{or. ' 

' I am* therefcB^ of opieion, that jthe app^ltotser4^;aQt ttpupd 
Ho.^y mfH^oithen the duties psgr^Ue by a T.esseLof the lUnite^ 
Bti^ee*; aod^ consequeiiUy, that the judgment of the Di$f^pfX . 
«: .CouiiFi«iiiabiw^ceTersed« 

^ . Noipi j*-Thts judgmEttot waft aflimnetf by the Suposi^c^v^ui^ , ' 

» - 





» ► 

APRIL TERM, 1804. 

m B 

• 129 

Canon's Ezecuton tw. Jennings. 

Caeson^s Executors vb» Jennings* 


The District Court of Pemisylv&nia, exercising admiralty jurisdictiQPf can-. 
not proceed against a captor, into whose hands the proceeds of the cap- 
ture have never arrived; the same being in the hands of the officer of an- 
other Court, in another State. 

A Court of Admiralty can onl^ pioceed tit remy against the thing itself; or 

* ^von tfi rem, a^iunst the proceeds thereof. 

'Aie execution of the Kotence of • si^rior Oourt^ can ohly be by a Coott 
* ^ of Adoiira^y haying tht things which is brd^r^A to be restoced, within ill 

* * The captured, who has omitted to enforce a decree of a superior Cour^ 
« * revermng tlie decree o(a Court of Adminjty ; canndit claim, as damages^ 

■.i^ the loss he may have adttuned, b;^ a depreciation of tiie funds in which 
^'the proceeds^yf tbe capture may be invested. He should hare appHed 
to the Couit betow, to enforce the decree of the Court of Af^eals i «A 
r» odiitting so to do^ the Ass*' will fidl upop him, 

1 HIS was an appoal front the District Court of Vtsgmflivaau ' 
jfL libel was filed in that Courts by WiUfam Downing JenniDgB, 
Jate,owner and proprietor of the sloop C^eorge, and Her cargo; 
against' Joseph ^Carson, one of tlfc owners of thp priviiteery ' 
*' catted the Addition. The original and snpplemenlaL Hbeli • 
^etalie^.th^t the George, ifith her cargo, being the property «f 
4he libelant, was, sometime in August, 1778, on the high seas^ 
.captured, as prize, by the Addition^ Moees Griffin, commander; 
was cyried into New Ji^ey, where she was libelled, in the 
Court of Adn^iralty, and condemned; hut,^||to an appeal to 
the* Court«of Appeals, 11^ prize causes, thsTs^wnce was re* 
f ytitted. The libel, in this cause, cBntains no specific prayer 
^ffriUj^er'; but Carson was arrested, and a monitioA was served 
V #h^'$ihfRn,'the commander of the priva||er. 

Xafson, afte» pleadiair to the jpti^dl&n oC the Courts thai 
* R- " S 


APRIL TEkM, 1804. 191 ' t 

Canon's Ezficuton 09. JenningiB. 

' tSie mon^s paid to the Marshal of New Jersey, accordiog !• « 

*,thecootinental scale ofd^rejcsifttiimy as established in that fttatei i, ^ 

and interest thei>eoQ from the date of the decree of the Court x>f 

Admiraltfy untH two months after the reversal^ and irom the 

time of commencing this suit in tj^ District Court| to. tli# jinaj^ 

^ ^decree. » 

' WA^mUG TOJsTy If. • In Uke argaiident af this cause, psaay 

points \?era«4^i8ed, and dabSJted at considerable loeglh. Butt 
as it may be decided upon ila real mefifs, I shall aToid g^»0 
"-^ . aivf opinion uji^ the prafimuiary p<Mnts. . ^ .. ^ 

' .' ^ Whether the Q^crict Couft of this. State caa, uad^r at^* 
^ /-xircumstancasy g|ifofco against the owners of the. pisivateei^, ^ 
' • / residing her^ ttafe senfenu^ of the i^d Goyivt W AMved^ . 
•. ^ directed to the Qfiurt <^A4m^U%jif Mew^nrMty ; the pro^ 
->j. ^eeds of the pjiw bdpg th6% and alivays afterwards, ft tlia ' 
*nnands of the tnarahal of tImCKlCoovt, i»dar its order ; apd no 
\^r* part th^^of having evar coAe»to. the poaaesaion of the owQM9 
^f the privateer; is a gre§t %uesiiony whfah it ia not» parjiepsi •. 
absolutely necessary. to decide alk tbaiUme^ fij^tf I ahsdl nai 
^ conceal th^ opfaiion'I-at jNreaent entertain, that tj^ ZAatficlr 
X^ourt of this Stale caamo^ ki aiiK;b a case, eiaot reKaf ag^insl * 
'/the person of the owiioc* Pme causes ar^ alwaya 4m rtm^ 
against the vessd' and cargoy or 09|, of thfton 1 #Awf M«i im r^m 
a^Bst the pn»ceeds, whw^ef they are^ But, when ^Iks ahj^d • * 
^ of die libel ia to es^eo^tp jt|ia;4M:ree of the Court, the prooa^dj * 
j» < ings of theXourt are limited hy the decree, to be enforoaA 
.. . ^ against the thing directed to h^ rpatorad. 

* I shall now consider the case upon its aoerits; and thp i{Ji«tifw 
.iion wilLbe^ whether,' under the peculiar cuMpstan^s attends 
' ^iQjg.^tbisL the appeHe^ are. entitlad to reUe^Hpbst th^ownffia. 
•• 'i^* %of i^e privateea» . ••• 7^^ 

- •'> At the threshold, we are at onee strije^k with theaiHi^viky of! 
the deoMind. The sentence of the Couitof ApjMs if«s pfO- 
a nomiGcri « ^ Md ofiJD^a^qiibQr^ i780|1)ideiiog re«tiiM|^ «f 


• » 


V •• 



« Canon's Executors i». Jennings. 

< the George, and her cargo, but without datnages ; and direct- 

4 « ing the Admiralty Court of New Jersey to issue all proper 

ptocess for executing that sentence. The cause appears to 

* kcire aj(ept from that period until the yeaf If 90; when it revived, 
in the CcNrm of a libel, for the value of the vessel and cargo ; 
filed ih tke* District Court of Pamsylvinia, against *the owner 


* «f the privateer, and afterwards against the present appellantSf" 

• ka» executors* The privuteer, and her cargo, had been sold 
under an order of the Conrt of Admiralty of New Jersey, in 
the ^ear 1778,' and the proceeds remained in the hands of the 

^ uarahai ; o^ at leasf , they were never called oat by any order 

* of that Couft. It was fairiy asked by the i^pellants' counsel, 
^ ^y this d^lay had taken place ? and, if no substantial injury 

haid resulted to the appellafits by the delay; it might have been 
well answered, th^t it wa&4inhnportaDt*to account for it. But, 
tke counsel for the appellees ha^e endeavoured to account for 
iti in B manner by rm means satisfaetory to me. They say, that 
tile States of Pennsylvania an^ tf^ew Hampshire, denied the ' 

* riglit.of the old Court of Appeals tp take cognizance, by wa^^ 
of appeal, of the decrees <if tlie Courts of Admiralty of these 
States. Admit the fact ; yet, it does nof appear that this point 

' was .ever contrpver^d by the State of New Jersey. It is true«' 
that the representatives of that State in Congress, voted against 
tbe exerciae^if this right, iqithe case of the sloop Active ; but 

* * that rot^WM overnuM by a majMity of Congress ; and, I pre- 

a«me, the vote of the majori^r was submitted to. ^ But, if the 
objection I am now considering, be attached to the substantial 
merits of the case, it is incambent on the party who would 
repel it* lo show, by clear proof, t)|iit am attemfit had been made^ 
to have the 8ent«iS9 of the Court of Appeals executed, by the 
iA4mifttlty Conn of New Jersey; or, that such an^ttempt 
HftiridhaTe b^en in^ectutl. This is not stated in the record,.* 
'and has only been mentioned in argument. I do not notice«tNfc 
objection with a vieoMr te^-a bar of the remedy, from length a( 
time 9»lmt does it mat^riiOljr affect U&e idtorest and rights ofthe^ 


1 • 



APRIL TERM, 1804. - • 183 

■ ■ 

Carson's Executors t». Jennings. 


appellees ? What would have been the situation of Carsonj If ' 
an application' had been made to^lhe Ailmlralty Couit of Nevr 
Jersey^ to execute the sentence of the Court of App^s, as 
soon as it couTd have been done.? Most cle«*1^, th^ 'former 
trould have directed tl^e marshal to pay over the proceeds of 
the vessel and c&rgp, then remaining in his hands, to the ap« 
pellees. If the monkey for which the vessel and oirgb had ftefn 
sold, had, in the meantime^ been diminished in value by depre* 
ciation^ eould that Coun have^goiie liAo any calcttlations to as- 
certaui the loss; and to fix it upoUtthe slioulders of the capt#rs ? 
I think, plearly not« By what rule coultf they liave ffaduated 
the scale of depr«ciatioa ? Congrbss had established none at 
that time.; ^or do I know ^at the State of New Jersey had. 
The loaf had resalted from the cifcunvstances <9f the reveltition ; 

• which It wdBhl^ have Iripen as invidious, vf it would have been 
mischievous and unpaAiuiiofcJ^ a Obtirt of Justice; to hav^ ad« 
mitted, as the oonse^uetaes o^iepreciaitofi. Beudea, the duty 
of the Court of Aift^liM|y 4rA to execute the sentence qf the* 
«Court of Appeals; nel to nevlnodel, and totally to'var^ it, by- 
decreeing damages, orf^an iddilional sumi in natilt*e4>f <^ma,« 
ges, against the captors; which the Court of Appals, knowing 
of the sale, and conaeqiiently of the dyreclition, h^d^ot* 
thought proper to award. 
The loss then, by depreciationf t6(A place either before the 

. eentence of rev^irsal, or aftrfPwaiids. 1§ before, it was 4 lose 
which th^ apjielle^ must have^ borne; if tliey had, (as it was 
their di|^y to do,) applied to the Court of Admiriltyyto carry^ 
^e sentenc^^ o^the Court of Appeals into execution. If so, can 
they by tey act or omissiol^of their •wb^ shift the loss from 
their oi^n shoulders to those of the appellants, who bad no coo-« 
trol over their actions ? If the loss by depreciation happened 
aftefwapdsyt^fett th6 afgument against the app^lees Is adll 
atrooger ; fce<^use they might haveobtained the mon^» of it& 
then v|lne at least; and it ^ould be itionstrous to contend, that 
/tf^y pould elaim aB*tlM subaequeat Ibss from &e captors^ l^ 

• • 

• fc 


I^e^insVlvania, ' '.-yt 


• Canon's Exeoutors i». Jennings. 

• > .; ■ ■ ■ W ■ ' ■ '^.* 

* u^^lictiqg to^dD wlitft tiief OH ooljr might, but what it was .. " ^ 
tbefr' dtttT to have pnereiited.'' 'If a lo8» n)Q«t be sustained by^ "'- 
<meof thesepaitiea, dDeak(S«ii8i9t with this pmcipl^aMofoquikft ^^ 
or eveivsttrict jb^^ce^ that he who haa cauaed iti ^all fix it upon ^ * 
anpthy ;' wbo< neither CAUseil J^ iK>r had it lo hH poifer to have t 

. lAeteoted it ? For,itlato l)e remarkod^thaititwftaiiitlieiKywer 
af .the appeUees, at any tiqMi' after the senteiife of Ihe Court of 
Appeals, to have.oi^nipeUMi the pqfraitat of the proceeds of 
vessel and 'oBif|;o; but thft -spps^nifn cqM exercise no. power 
whunys oVer the sabjSoc It i» thevefc^e of no copeequcpce, 
at what pEerio4.the kiA by depreciation took place. 
. When I cqpsider the ob|«ct of this 4^1, aa.he^g to aiforioe ^ 
execution of the santence of Uie Court of ApptaWiit yiew it in 
a l^ghC JAOst £uRO|irable to tJie stsict right o{ the upiieHees. 
The case is too enthrely desttCute of e^tfity, to Hand ilppn the ^ 
ground of an origiiukl qtoiili §qt ^heaagaft. 

Upon thip whple, I am of ofi§^^ ti^ tbe dei^r^^ of the Dia^ ' 
trkn Court ahouM be reverftd#«iid Ihe Hke} dismissed with 
«oats. «• . • fc . - > , 


M^rE.— Ij^ February Ig^r^ this decree was affinned in the *'/ 


«Su|jMn^ Cottit, 4 Ofanch. .2. Thia Supreme Court of the V 
United States detenhined, in this ca$a; I. That the District ' 

^CourU,of the UmicnI 9iat«Mea Courts of admiralty juilsdic^^ 
tioD, kajiFo autbonty toisnforcf a tbcft^oi thc^ederai Court of 
il^peals.. % Tha District CoiiM of t^ Cait|fd ^tes, are 
Courts <4f AiiMairal^y I mdf as »^ la«r has r^daacd their i^'ac- 
ticoi diey p^Mied aaoscdiag to A€ general rale^af the Admi- 

' V • 


• ♦ - 

• -APRIL TERM, laoi.- tS8 

■ ■ I * » I I ■ I i> O I 

Hoidekoper «». l^tilas. 

HuiDEKOPBA v»^ Stiles. # 

Justices of the peAiDe «f th« Stute pf fefWlxtHI^ tyqr reo^vd groof oF^ 
the service 6i piOcesB of ejectment^ ksuing oat of the Circuit O^Hjft of ' 
• the tJiuted S^tea. \ ^ 

What will be ikemed a, sufteiwil sendee of a deehiatiflft 1» i^oefBieot. 

JVLOTION for judgment a|:«iii8t the^dasual ejeetor^ on netioe 
to the tenant in po9»essioft, serred and proved by the affidavit 
'of the deputy niarskal) before D. Meade ; who, by a cert|Bcate 

^ of the prothonotaryi is stated to have qualified m a justice of 
the peacej. of the Qaamm;! ^^^^ ^ CiAV^u^.ccmAty. 

Levy objected^ that a Stat^ viagiamia kaa no paiier to take 
proofs ofaarvice of protoesa^ Hia hatis^ m poweo Ift «telftkter 
the oath of office to .the deputy m^trshid, in a particular case, 
4 vol. Laws 374} shows tftat hl&'has no such authority i^ othar 
cases. He also objected to tflfe affidavit^ that it did n6t state 
1>ositiveIy, that the tenant found in pdasesason was tenant in 
possession; it is left tO' implication: it ia'sud to have been 
served on A. B., tenant in possession. 3 Bac. Abr. 162. The 
affidavit should be poeitive^ that J. D. was tenant )n pos^ss^ion, 
or acknowledged himsetC to be so. Affidavits of'service on 

• A. B., tenant, or C, his wife; or the wives of A^Bf B., wBo, or 
one of them, are 'tenants, are^ot.suffici^t. Ibid. 
Iq ooe of tha cases on which this motion is made, the decla- 

' ration was dlVvered to the' lather of the tenant in possession, 

Mon the land,''an4 in the house of the tetia^t in possession, ^n 

another, if i^served by nail^ ttle de«larat!6li en the door oi 

W. M., on ^he premises. But the defendant does not state • 

' that the house v^ad empty. If th^ defendant did not live there, 

but 'Ifae marshal knew where he lived, It ought to have been. 

served personally on him. 

The Court granted a ru|» to show cause, at the adjourned 

, Courts why ji^dgteent should not be entered up. 


Huftdekoper w. M'Clean. 

HmDSEoPBii V9. M'Clkak. 

^ By the pnetice of Pennsylvflhia, relative to land titkfl, if a warrant is taken 
out ftn^laiid a^Joiiung Jl B» and it b found that the land adjohung A. B« 
has been preTioualy taken up < it may be la^ upon land adjoimng that 
ao held" by a previous t&tle. ' 

ne inceptive Htle of a waiAoit holder for lands in ** the new purchase," is 
a m^re right pfpowpcoaisn, Uf be consununated by a compliance with the 
requisites of the law; and unless they were petformed, no estate vested in 
him, and he lo^ bis rig^t of poasesnon. 

Upon a forfdture being incurred, by a non-compliance with the tenns of the 
warrant, no third person eould erfter on the land < no vacating Wamuit 
toould iMoe,«^ it is pro^^ded by the kw, that it can onlyiBsiie to an actud 

jL his case did not differ tDMeg|aUy ftiMn that of Huidekoper 
vs. Burrus. In 1796, a cabin #as built by a person claiming 
under the Companyy and some land was cleared ; but upon the 
eyidence^ the question left, to the jury was, whether a settle* 
ment was commenced within a reasonable time after the pre- 
relation ceased ; 9ifxd whether ten acres were cleared within five 
years after the first settlement. * 

But iir this case, tl^ foiioifing^bjections were paade to the 
plaintiff's title :— 

First. That the warrant was issujed to Chaifss Levi, for four, 
hundred acres, north, or adjoining land this day granted to 
CMarles Hall. Bv^ the land yi qvMstion did not adjoin Charles 
Hall; there being between this and CHkrles HaH\ ^Jiother tract 
to which anolber was entitled. 

On the part of the ^plaintiff, the construction of Uie law Was 
re-argued, much as in the former case, with this additional ob- 
servation ; that if actual settlement means improvement within 
. two years, and residence for five^ that this absurdity wo^lA 


APRIL TERM, 1804. .*' • 13T 

- • . • 

■ - 

HuidekSper fw. M'Clean** . * 

■ ■ P <■ ■ ■ * * 


follow; that by the preceding part of the ninth section, it would 
require A settlement of five years to be perfoimed in ttie coprfte 
.of two. * ' • ♦ 

The plaintiff aldo relied upon a pretention/ from unlawful 
combinations of settlers. « • 

JVATSHIJ^GT^/^y J^ charged the jury^j As to the objectioti 

made by the defendant; it sufficientlv appears in evidence, that 

the warrant for four hundred acres, in ^h'e name of Charles 

/ Hall) was claimed by a prior imptov«niitnt of Luke Ifill; and 

* that Charles^all's warrant was consIaored«s. a lost one. Con* 

sequently the company cofild not si^v^ey Charles Hall's war-" 

rant on that land, and were necessarily obliged to go on to the 

.^ next adjoining, to survey Charles bev4^ warrant. This is the 

constant practice in this State', and a4:ontrary d^claion noWj^ 

would be of most mischievous consequences. The patent^lstateS) 

' that it is for the land surveye'd for Charles Levi, by virtue of 

(his warrant, which must be adjoining Charles Hall, unless an 

interruption had taken place. '^ 

It has been contended by the plaintiPs counsel, that even if 

they have failed to complj; wiCh (he law; 'yet, until the Com- 

tnonwealth has taken advantage of the forfeiture, no other per-> 

son can enter upon the land, Ind dsfeat the title of the plaintiff. 

We think there is no weight in this argument. ' It is true, the 

warrant holder had an ii^ipieAt titje ; but it was merely a right 

of possession for particular purposes; that is, ^o settle and im'- 

.prove, so as to comply Vith^thes^ conditions, on the perform- 

ance of which an estate ypis to vtest in him ; *but unless those 

conditions were perfornftBd', no estate did" vest in himf ai^ he 

'lost his right' of possession, ^he State was not bound to pur- 

- sue tfny particular mo'de for regaining the possession. The law 
*^ • * • 

.authon^e^ any peryn to acquire a title to lands, for which 

warran^^ad been granted, and the condition not performed 

' -^ by wancan^ or seUlcnv^nt. tBut if no person can enter and 

lettle tm lands, w;^ere the warrant holder has neglected to per-» 

S .■' 

138 . - ' PENNSYLVANIA, 


Huidekbper vs, M'Clcan. 

form <he conditions on which he was to have an estate in it ; 
then no vacating vi^afrant^coiild ever issue ; as that must be to 
an actual settl^;*and yet by the express words of the law, such 
a warrant maf issaey in, cases where the conditions imposed 
on the warrant;holder have not been complied with. 

Tcditie now to the# construction of the- law. I have list^ied 
with great pleastfre^ «d the second argument of this question, 
with a mind I think \inprejtidaced by the opinion I delivered in 
the case of Huidehofier and Burma; and if I know myself, I 
would with pleasure have feferacted that opinion, if I fek myself 
convinced by t^e able and ingenious argument I have now 
heard. . * n * . 

My opinion then was' stated to be, that actual settlement 
meant improvements a^d^ within two years, and residence for 
five. This ^ oontrovyted, upon the ground that it would be 
to require a five years' residence, to be performed in the space 
of two. This absurdity veally grows out of the literal reading 
of the enacting clause •f the 9th section ; but we must see if it 
may not be avoided, by such an<iqterpretatioB as will make alt 
the parts of the law consistent and harmonious. 

The words are <^^hat no'^acrant or survey, Sec. shall vest 
anf title to the lands thtrdn mentioned, unless the grantee has, 
prior to the date of such warrant,',fnade, &c., or shall within two 
years next after the date 6f the same,^nake, or &c. an actual 
settlement thereon, by^ clearing, /entfipg, ai^d cultivating, two 

acres on each hundred, erecting a habitalion for the residence 


of man, and residing, or causiiig a^miJly t0 reside thereon, for 
fic^e years next following his £rst settling the 8«ie, ift &c." 

Now, the actual settlement is *th(^ declared to consist; in 
making certain impfc^vements within two years; afid a residence 
fer five; but the apparent absufdit/ arises « merely from, the 
order in which the sentence is arrafteed, and 4>ywan easptrans- 
positicm will be removed. I read the sfritenoe thu^,— ^that to ' 
give a title, there must be an actual settlement, by making cer- 
tain improvements thereon within two years afler die date 4aL 


APRIL TERM, 1804. . -^ 139 

Huidckdper m. M'Clean. , . 

^i^^^— ■^■^^—1 ^■^^— — i— — ■ I I M ^^^-^ —^—,^1—— 


the warraot, and residing thereon for five yeais, so t& to make an 
actual settlement consist in, those two thiii^»improvement with- 
in two, and residence for five years after date of the warrant. 
That this is the plain legislative definition of actual -settlement) 
appears' obvious to me, from the wor^s "bf the law itself, as 
'above quoted. If actual settlement means j^nprovements, made 
within two years, independent of rcsideoce, tfae^lie difficulty I 
stated in the case of Huidekoper v«. Bu^rus must. exist; vis« 


that if a man had made the improvements required in t]ie 
enacting clause, but had been driven off, «o that he could not 
continue his residence, he would have bete exposed t6 the 
complete operation of the enacting clause,' without being saved 
by the proviso; for the latter could ndiUapj[>ly to Auck ^ c^e. 

But in truth it is of no consequence in this, anf more .than in 
the other case, whether actual settlement means bpth improve- 
ment and residence, or only the fornief' ; because, in neither is 
it pretended that the improveiigients«wttre m^e, %i|thin two 
years from a reasonable time after the prevention 'ceased. The 
great question is, whether per8|;it|^e lo make the settlement, 

' was intended to consist in end favours merely,, or in actually 
making the settlement; whatever irn^y be sufHciept to constitute 
it. If the party is not to persist to^efectj affer the prevention 
had ceased) that which he mustiianre done had it n^ver existed; 
then he must persist, during* the tii^e when \9e is prevented, 
whether that be long or shert. Now, to require persistance in 

uloing what he is prevented, and therefore excused from doing, 
is,, to my comprebens^n, k^ a\)^erdity, with whith the Legisla<» 
ture should not be charged. Perai^t JtioWj and for what pur- 
pose ? The law lupposes the party to be driven off and pre* 
vented from' settling i^ and if^ UB<Ier*8uch circumstances, he iste 
persist in hia endeaveira to settle, nothing short of actually 
settling himself upon the land cdH do; for although be may 
risk lus life iq the attempt, y«t if he can attempt it, and run the 
risk, and if he'is m>t'to go thus fiur, what b he to do to afford 

- evidence of persistance i Will his hovering on the borders of the 




Huidekdper co^ H'Cleaiu 

land; aom^tiniAt ^ a moineDt pf . tnnqtiiUity, going ofD at the 
imminent hasard of his kfpy and then flying when he bears of 
an enamyy answer^he purine ? Could the law baye intended 
this i Is'nqt i\^ mieaiilng obviou«ly otherwise ? And if he was 
90t required to do tMs^Jnf what scale are we ta graduate the 
., degrees of peraistan^e ? Would not a naant who, (during a pe- 
Siod when it was niadne8»ta attempt a aettJemont,) resided ge* 
tierally in the interior^of the country^ without apeodingu thought 
iigpn his intended settlepnent^ unt|l the. danger was over, be 
eit>|isidered as having complied wjlth the oooditiona of the law». 
as fully as the conK)>any, whose agents had made prq>s(rations 
'for settling when Ihtf danger should be over ? If not) then how 
will the^ Qponm^any cAter anto competition^ Upon the score of 
merit, or ralh^r of hardihood, and culpable tiemerity, wHh thoee 
fearleas adventurers, wlio went on the lands at a time when they 
aaaociated arms of d^ente with the instruments of agrieulture : 
who neve| wen^to thyr^elds.but.with their rifles, and carried 
Ihem from ode comhul to another. The truth is, that persist* 
aoce can nevec be coihsldejed aa contemporaneous with preven- . 
tjon. So long as ' prevention continnes, the law excuses the ^ 
party from peroisting; Yor. it would be unavailing. But if per- 
iistanc6 was to cdnsist m n^^king not one effort, dualbg the pe- ' 
riod pf previgitipn,' then to Si^ that such a pecsistanc^ is a com- 
pliance with the requifi(^ qf th^' law,, is to substitjllte, in the 
place of a aubatantial good, viz. the settlement of the country, 
a sort of merit merely infaginary. The only way therefore tq^ 
make sense of Hhe law, and tce<|pVn]^ly wj^th the manifest intsn- 
iion of th^ Legi^ature, w to construe the. pr^viio ^s requiring 
the party to do that, aft^r the imped^nents had oeased, which 
he must ha^re pefformed had' they nev^ eaciaied. He must 
persist until his endeavours are crawnedrwith success.. Instead 
of being oblic^ed, at the risk: of ^hia lifb, to H&prove within two. 
years from the date oi, his warrant, andt to residj^ for fire, it is 
enoaghf under the proviso, ^f he does the teme things after the 
piieveiitioD bad ceased. 


- A^HIL l^ERM, 1804. 



HuidekSper «. If Glean. 

•»^ • 

As to what'shiH be t^hmfi a msoaiable time for comtneoc- 
ing the 8QUleineDt9(.after the prevaition4iad ceasfdy I shall leave 
it entirely to the jniqrto decideyjupomtbe oircumatantea of that 
country) after tie Var had entirely ceased^ and th^ preparations 
necessary lor sfLch ^n undeKaking. 

As to the combinatMHia of associated intruders^ if they went 
no farther tlyan to support what they supposed to be their rig|ls)' 
for it appenri they asserted titles adrerie to that of the- corApany f 
I do not thlt)k that this ought to excuse the plaintiffs, for not- 
niakaag their setilfeiiieBt in ^e;^ you should be of q|imon 
they were not made ito^ time, Mthee do I think, that^ if their • 
opposition was unlawful, and to support tortious intrusions, that 
they should afiSsct Ahe.daiBQdatit» unless he appeved to have 
been oa^ of the associate^ or to have oi^sed the settlement 
of the-oountry. * * • 

ne Jury found /or the fiiaintiff.^ 

• # 


■ ■ 

• - .. 

• ' 


\ - 

» * 



* CHon. BUSHROD WX^HQIGTON, Assc^iatc Justice of the 
■£Foxs < Supreme Court 

CHon. RICHARD PETBRS, Distriee Judge. 

Stonb et al. v8. Ketland. 

Amaflter <)f a Teasel, idio at ses bean down on another vessel to leewaid, 

which has hoisted her cplooi«» b juHSfied in hearing down upon her, if it 

is a ci^^tom to do so. 
The master of a vessel is bound to his owners, and he and they to ev^ one 

who may be aifecfed by his acts, for his skill and care in the management 

of the vessel under his command. 
If from Want of care or skill he injures another vessel, the owner of the ves- 

sA under hb command is answerable. 

X HE- case was,- that the Wa8hhigton> the property of de- 
fendant, in her passage from Batavia to Philadelphia, observing 
a schooner, the property of the plaintiff, on her outward pas- 
sage, and witK colours flying, bore doWn upon 'her, supposing 
she wished to speak her. jC^pon approaching her, the wind vari- 
able and dying away, it was fbund sheVould not obey her helm, 
which was put in the proper situation to avdi^ running against 
the schooner; finding that this was now in^itable, the .captain 
ordered the helm to be change^), and the sfdlaput aback, to 
deaden her way, and dimhiish the shock, ^he consequence 
however was, that the schooner was upset and supk. . This'ac- 




OCTOBER TERM, 1804. ' " 143 

• ■ T 

Stpne et al. ttf. Ketland. * 



lion was Ibr damages. The defence was, that the Washington 
was justified in bearil^ down upon the schqoner, it heing Ihe 
acknowledged and universal understanding at sea, that IF a'ves- 
sel to leeward hoists her poloun, it is always understood^ by a ' 
vessel to windirard^ that she wishes to spcAk her; and this tts*^ 
torn was clearly proved by many respectable sea captains. That 
the Washington, in bearing 4own on the schoonet', with this 
view, was managed in a manner which the most skilful and at- 
tentive commander could have done. There was contradictory 
evidence upon this point, both as to facts and opinions. . The 
defendant also reli^ upon the repeated acknowledgment of. 
the captain of the schooner, that the aecident was inevitable, 
and that no blame attached to captain- Williamson, the com- 
mander of the Washington. 

In charging the juif, WASHJJ^TOjY J. laid down the 
rule, that a man who und^ook to navigate a ship, was pledged 
to his owners, and he and they to all the world who might be 
affected, for his skill, care, and attention. That it was not suf- 
^ficient for him tp say he had exercised his best judgment; but 
in case any person sustained an injury from%im, he was bound 
to show that he possessed and had exercised the judgment of a 
skilful and careful commander. That the sigqal, as understood 
at sea, was a justification for the Washington, in departing from 
her course, and bearing down to the schooner, if, in the opinion 
of the jury, the custom was sufficiently' proved. That it was 
for the jury to say, whether, in do}tkg«o, the captain had con- 
ducted himself with skill and care ; whether, he manoeuvred as 
he ooght to have done^ and in due time ; if not, the defendants 
were liable. That the acknowledgments of the captain, were 
to be considered ai^ eviden9» corroborating the opiniQns of the 
defendant's ^tritnesses, that capta^Willid!inson had acted pro- 
perly, f^d that ihe acclient wlui inevitable, and nothing farther. 
.* ' . • * . Jury found for the d^endant. 




' r 






Ketland t»« Bisset^ 



' The character of the defendant not being impeached* erldence to suppM 

it Cannot be admitted. 
S sums that depomtionf sworn to^ but 'not &ig«ed b^'lhe witness^ may be 

read in eridence. 
fUidi interrogatoiy^n a comnuMkli ^msM. be answered aepiUktels^ at least 
in si]}Atance $ and the omianon of fuch answen ii ^tal to <be whfiK coot: 
miavon t aithoi^ the witness in •asuraring' the' general intenQgaUny, 
says that be knbws naitiiLpg further material to either pdutjr. 

J. HE plaintiff directed defetidimt t6 ship for him good Madei- 
f2k Wine, for the jBombay market ;. he shipped the vine, and the 
only question was, whether he had * shipped stich wine as was 
directed; the plainii|? alleging that it was unsound, would not 
sell at Btfmbay, and was necessarily carried \m Calcutta^ where 
it was sold for one hundred rupees less, tham a cargo of indiffer- 
ent wine, carried to Bombay, at the same timef |tras sold for. 
On the trial, the following points of evidence Were decided : 
1. That the defendant's character not being impeached, evi- 
dence by the defendant to suppgfTt his character was improper. 
3. Depomtions were offered, and objected to, because not 
signed by the witnesses. Evidence being given that the oppo« 
site counse^had waived the objection, Washington J, admitted 

the depositions, and obferved, that he was inclined to think, 

* • s 
that without the waiver, the dbjecCion was not good, but gave 

no opinion. 

S. The depositions are in answer to interrogatories, but many 

of them are not answered or poticed. The answer to the ge- 

neral interrogatory, is in th^usual waf, that the witness knows 

nothing farther, Sec. The whole commission was objected to, 

for this reason. The Court tkou^t^the obfpdtion goocf;)each 

interrogatory should be an^w^red, at le&st !h substance, an(fnot 

to have examined the witntsles to each, is fatal to the ^yhol^ 

commiBskm. • 


OCTOBER TERM, 1804. 145 

Ruan V8. Gatdner. 


RuAN x>9. Gardner. 

In an action en a policy of insurance^ on goods ; one of thefMirt owners of 
. tlie ressely not interested in the insurance, may be exaimned to prote the 

loss» andcitber&cts. / 

q. S. at the request, and for the use of the plaintifiT, effected insunnce «n 
five hogahc^dfl dtsugsr, on board The Bfothert, atid on ten ho^eads d 
:^ r su0» OQ bovd ThtSkten,' and in (^escribing the same, by the suppoMd 
marks, a mistake was committed ; but the intention to insure the quan<* 
tity of sugar, according to 'bis letter of instiijctions, was declared to the 


insurance broker. The property of the plaintiff* was proved to be on 
board. The mistake in the marks ^as declared not to be ibafeetiii* 
. Querey if the assured had other sugars on board, and the claim luid iMK^tt 
' fbr a partial Joss ? 

iProof, that possession was taken of the vessel, by a privateer under Spanish 

colours, and that she was curied into Porto Rico ( is suflicient evidence 

of a total loss, after three years ; during which time, nothing has been 

^, heard of the vessel or cargo ; and to enable the assured to recover, it is 

not necessaiy td diow a condemnation. 

'fhe agent, who makes the insurance, after purging himself on his wire 4^^ 
is a good witaess for the assured, to prove matters respecting the fyofiey. 

The protesf of one of the sailors of the captured vessel, made after hia re- 
turn to the United States^ at the first pott, and left with the broker of 
the assurers, to fix the period fitnn which the loss was to be paid ; may 
be ffiven in evidence for tliat purpose { but it is not evidence of any fiu;t 
contained in it. 

Evidence to prove a particular course of trade, or other matters in the i^- 
tnie of fhcts, is proper ; but not to prove what) or how, thfe law is coni^ 
deied hf nefchscnta* 

Witnesses cannot be examined to prove a cnatomi diat when iniurance vt\ 
made on good^ with a particular mark $ those goods, m fMtrked% mtXst be 
on board, in onler to entitle the assured to recover. 

A suit, on a policy of insurance, is properly brought, if instituted in the 
name of the owner of the property mtended to be insured \ and, if the 
assuifed is a citizen of another Sute, ti^ Circuit Court has juri^cti<m ; 
afthough the agent, whosis name only af^h^ars in the policy^ is a citiz^ tf 
the State of Pennsylvania. 



Buan tv. Gardner. 

X HIS was an action againi^t the defendant, as an underwritet', . 
upon a policy effected at the office of Shoemaker & Barret, in 
the name of Henry Sparks, and all others interested, (in the 
usual form,) on five hogsheads of sdgar, marked D, on board " 
the Brothers, at, and from, Santa Cruz, to Philadelphia; va- 
lued at 55 1 dollars. The vessel, on herpassage, was ^ptured by^ 
a Spanish privateer, and carried to Porto Rico. Sparks, having .. 
recdved information of the loss, gave notice at the insurance 
€»ffice, and offered to abandon ; which was refused. 

The plaintiff, to prove the loss, and the other facts, oflfererf^V 
the deposition of J. Tatem, one of the part owners of the 
Brothers, which was objected to by Wells, for defendant, on 
two groifiids ; first, that this ^ng a valued policy, it was to be 
]tfesumed, the freight was included in the insurance; and, ^ . 
therefore, he was interested. Second ; that he was interested 
to fix the loss on the underwriters, in order to get rid of the 
obligation imposed upon him by the bill of lading, to deliver 
the goods at Philadelphia. He cited 1 Dall. 7. 62. By the 
Cdurt. (Peters, J. present.) There is nothing in the first rea- "- 
son ; because, whether the freight of the sugar was covered by 
the policy or not, the witness has no interest in the recovery 
of the plaintiff, or his failure; since, if he hn^ insured the 
freight, his right to recover cannot be affected. But, at any 
rate, it is nothing but presumption that it .was covered. As to 
the second ground of objection, should the plaintiff suei the 
owners on the bill of lading, the verdict would not be evidence 
in &vour of the owners ; and, though a recovery against the 
underwriters, on account of a loss by capture, would, in all 
probability, prevent a suit against the owners on the bill oi 
lading ; yet, this is merely a consequence too remote to affect 
the competency of the witness. If he have any interest, it goes 
to his credit, and must be submitted to the jury. Judge Peters 
added, that the plaintiff's demand in this case, being g^unded 
on a loss by capture, wo41|, be evidence against him in an ac» 
tion against the owners. 

OCTOBER TERM, 1804. 147 

* • 

Buan ve. Gardner. 

It was tiien objected to the reading of the depositions, to* 
prove the loss ; that the protest of the captain is essentia! to 
prove it; and, that no other evidence Vould do; to 
which 1 Dall. 317. 3 Idem, 196, were read. 

Per Cur. These cases prove what we admit ; that, where 
the captaih's protest is offered in evidence, it being contrary 
to the common law rules of evidence, it is essential, that the 
protest should be made at the first port where the protest 
can be made ; whilst the facts stated, are fresh in the recollec- 
tion of the captain, and are free from any influence afterwards 
derived from conversing ivith the owners, or others. 

But, in this case, there is no protest offered ; and, therefore, 
no question as to its validity. But, ho case can be shown, that, 
in an action against underwriters, on a loss by capture, the cap- 
tain's protest is essential to prove the loss. Other evidence 
may be offered. It would be strange to say, that the owner of 
goods should lose his remedy against the underwriters, because 
the master, the servant of th^ owners of the ship, had neglected 
to make a protest ; and though, if the protest were necessary, 
he would have his i*emedy against the owners of the vessel ; 
yet he would be deprived of his remedy against the under- 
writers ; which might, in many cases, be the only effectual one. 
Indeed, protests of captains are not admitted as evidence at all 
in some of the State Courts ; and it is at least questionable, ' 
whether they have been admitted upon perfectly clear ground 
in any. 

The defendant then objected to admitting the examination of 
Henry Sparks, in whose name th^ policy was effected, upon 
the ground of interest ; since it appears from the &ce of the po- 
licy, that it was effected for him ; that this Court could not 
entertain jurisdiction of the cause, since Sparks was a citizen 
of Pennsylvania, and was substantially the plaintiff. 

By the Court. The objection being tq the testimony of the wit- 
ness on the ground of interest, he must be sworn on the voir dire ; 
and, as to the jurisdiction of the Court, that is a distinct ques^ 



• ; _^ 

• * ' Ruftn f». Gardher. 

tipn, which cannot be onderstppd uotU he is e|[|i|nined. Spur^^ 
beiqg examined, and denying any interest in the event of the 
cau^j was sworn in chief, and stated ; tha) be was written t,o by 
the plaintiff, to effect an insurance on five hogsheads of sugar9 
on board the Brothers^ and ten on board the Sisters. Th^ order 
for insurance was received in a tripUcfite letter, at the top of 
which were these marks— Q. pr. Sisters— D. pr. Brothers. 
That not knowing thj^se initials stood ibr original and dupli- 
cate, but mistaking them for the marks on the sugars, he de- 
signated the five hogsheads in question, and had them inaured* 
by the mark D. But, to prevent any inconvenience which 
might result, if he should bp mistaken a$,to the meaning, of 
these initials, he informed 'tiie insurance broker, Jacob Shoe- 
inaker; that, let the sugars be marked as they might, his inten- 
tion was to insure the five hogsheads mentioned in that lettcflr ; 
and, to identify it, be got Mr. Shoemaker to put his name at 
the foot of it, with thp d^te. The latter part of bis evidence 
was 9tTongly supported by Shoemake^. He further stated, that, 
during this conversation with Shoemaker, the defendant c%me 
into the room. He afterwards received one of the bills of 
lading, by which he found the sugars were marked W. R.; 
also notice of the capture ; of which he immediately gave no- 
tice at the insurance office, and offered to abandon to the under-^ 

The loss was proved by captain Tatem, who was part owner 
of the Brothers and Sisters, commanded the Sisters, sailed in 
epmpany with the Brothers, when both of them were taken by 
a privateer under French colours^ and the Brothers was carried 
into Porto Rico. He further states, that he has never heard of 
the captain or any of the crew since, except one sailor, who re- 
turned to Philadelphia: also, that the plaintiff had on board the 
Brothers, only the five hogsheads of sugar, marked D. 

This sailor made his protest in Philadelphia, which was deli- 
vered in at the office of ^oemaker, in consequence of a clause 
ii^ the policy, that payment was to be made within thirty days 

OCTQWSR TWHi 1104. \i% 

^11411 M. Gardner. 

' » ' . ' 

after proqf oM^^.of t^ iona. Ji^ p«PU|pi W4ft (Sfm^ 1^ LfTye 
as evi4eqc« «f 4 cDippK^<^ wUb ^th^t pmTl^Uui m ^^ ^^^^J% 

sailor, and not t)ie captain, apd pot n^f^e at tbi^ firit fiplt. 

J9y //kf CQur(. The ^yidcQce is pr^^er, for t)io fmrjM^M for 
which it ia oSeracI ; hut» tb0 faict^ at^ed \n it^e pot ^y^deQce^ 
to be laid before the jury, to pn;tv6 th^ loaa. 

Wells then offered witnaaaes to prove, that it is the custom, 
when insurance ta-efieptpd oa,^rlicle% iPith a parUc«l%r pif^k, 
,'tbey muat be ok^ boaad, to ^iif^k t))e p^rty to r^ffiiiff Cited 
Cuxnming, 330. * 

JSy the Court, Yqu may examine wilm^ssea %f> fwayo a par- 
ticular cour^ pf \v^y or other pi^^rs in the nature of fiicta^ 
but not to show what the law i9< Nothing oonld be jnqre dan* 
gerous, than to &«l t)ia )aw ^^ Uie opfnipn^ of p^icular men. 

The defence fras, tbat there w^a o^t sufficient proof of lo^* 
that there ia no septenpe of c<m4einna^n produced ; that tfx^ 
property insured, was different irqn^ t^e property lost, the 
former being marked D. and the latter W{1. i in consequence of 
which, b%i the vesse) come safe, the assured might have de- 
manded a return of the premium ; and, if so, he cannot cl^im 
the loaa. 

It was further contei^ded^that tlie Court had not jurisdiclioit 
of the cause* since the policy is in the na^ie of Sparka, a Penp# 
sylvanian ;, and, lastly, that if the Court had jurisdiction, Ruan 
canpQt reooyer qg^a^^icy m^de in the name of Sparks. 

In answer, to the last objection, Levy contended, that it had 
long bee^ settled, that, until the act of Parliament, which re- 
quirea agents to insert in, policies the names of their principals, 
the action might be brought ,in the name of the trustee, or 
€e$tui ^ue tru*^. H^ Qted Cumming, a76u 1 Show. 151. 4 T, 
R^. 343, 343. 1 paat's Rep. 335. /^ 

The Court were of opinioui th^^there was no weigl^in the 
objecti^ to the jurisdiction} 01 to the action. As to the first } 



__j___i___i_M-i]^m_M M 1 1 r>r i • . . . -^ 

Ruan w. Gaixlner. 

II I ■ ^ , I !■■■ II I . ■ . . ■■■. ■ II ■!■ Ill ■ , ^ 1,1 ■ I 

tiecaiMtf Rvan U not only the nominal. Bat subatantial and real 


pkdntMMit being cleaHf proved, that Sparks effected the po- 
licy upoB property hctonging to fatni) and at his request. As 
to the second ; that the action might certainly be supported in 
the name of the principid, though not specially mentioned; the 
policy being in the usual form, in the name of Sparks, and of 
aU other persons haying interest. 

WUlSHUfG 7Y>A; J. diarged the 7ury. This is an action to 
fecoyer die hMS i^kmi a valued pWcy, eflbcted by Sparks, for 
the bencit of Ruan, the j^amtitf. Tatem has been exanuned, 
and states, that he was in company with the Brothers, when 
she was attacked by ^ piivatecir under Spanish colours, was 
mmde piize of^ and carried into Porto Rico. There is no op- 
-posing testimony ; and Tatem, in point of credit, stands unim- 
peached by any other witness. Independent of this positive 
evidence, it ia now three years since the capture, and nothing 
has been heard of the vessel and ckrgo. As to a sentence of 
condemnation, none is necessary ; because the voyage having 
btfen put an end to by the capture, the assured had a Hght, on 
iiotice of it, to abandon to the underwriters ; whieh it ^(tears 
he did in due time. 

The next and most important question, is, whether sufficient 
evidence has been pven, that the five hogsheads, shipped by 
the plaintiff", were covered by the policy, or not. It appears, 
that the agent of the plaintifr acted under a mititak^, when he 
insured the sugar as inarked D ; but, doubting whether it was 
or was not a mistake^ he did every thing he c6uld, to satisfy the 
brok^, who, {firo hue viecj) was the agent of the underwriters ; 
that the sugar insured, was the five hogsheads on board the 
Brothers, shipped by the plaintiffl It was perfectly immaterial 
to the risk, what wer^ the marks on the hogsheads, provided 
the risk undertaken by the underwriters, was neither charged 
nor inoMsased. Nor was it the case ; since it is in proof, that 
the plfdntiiF shipped but five hogsheads oa board the Brothers. If, 



Buao va, Gaxdner. 

m' » . - y - 

[, he liad bad more, some marked D, and oIlkeM wit)i .etber 
marlu, and a pardal loss had ha^ened; H would nat iMtve l>een 
competent to the plaintiff to ahifit from doe mark to another, 
so as to alter the risk, and possibly make the underwriters 
liable for hogaheadsnot inittred. But ^k was tiot, and could 
not be the case, in the present instance. 

The plaintiff, therefore, having^troved the loss^ property in 
the goods insured; notice and proof of loss at the issunuice 
office, and an ri>sndn— aant ; if the jwfy Mie?e the wteeases, 
their verdict must be for the plaintiff. 

Jury found fir t%9 fi§9inHjr. 


Walker et al. t». Rbbett Smith. 

Wkhwaai bt al. ti#« IUAbrt Sxin^ 

No man can compel another to render him acts of friendship, or service^ of 
any Ichid whitsoeVel*, g^ratuitoual^, 6t tn6i a view io compensation. But 
if libe person applied to C6nifent8 to tiAidet (he seitite, aild andertakei 
ft« iHrtiifcii^he to »<fMiidW>ct ii> cm^l M it y ^ #»lMrmi on ^wludi ffc^ 
Tequest was made. 

hyoniwrnyniri a§g|icies»- tiiis nde should be strictly enforced. 

The relinqviakoient of commission on an agency, does not release from the 
effects of negf^Ugence. 

An agent who does not cbmply vnitfa his instructions, is liable for flie Ion 
occasioned thereby, although the services were-gratnitoualy rendered. 

In suits for vindictive damagM^ the jury have the ri|^ to decide on tiie 
amount, without the control of the Cowt; but wh^re-they s^ exliavagan^ 
the Court will interfere. But in other cases^ where a nile can be disco- 
vered, the jury are bound to follow it; and where a sum of money Ivs 
been lost to the plaintiff by the negligence of the defendant, the amount 
of damages which a juiy can give, is the suln the plaintiff has been thus 
deprived of, and no more. 

J. HE plaintiffs, merchants in London, having been apjplied to 
by a Mr. Brown of Philadelphia, for a parcel of goods^ and 
doubting his solidity, were introduped by the nii|tua1 friend of 
the plaintiff and defendant, to the defendant ; and on this intro- 
duction, they sent the goods to him, and in aletter, stating their 
apprehensions of Brown ; requested him to receive the goods, 
but not to deliver them to Brown, without payment for the 
amount being received, or such security given, as the defend- 
aiA should approve ; and in case neither was done, he, the de- 
fendant, was to dispose of them for account of plaintiffs. The 
defendant received the goods, and tielivefed them to Browny with- 
out receiving payment or security. Brown afterwards failed ; 
and by a compromise, ^art. of the debt was received, and re* 
mitted to the plaintiffs; and this action was brought to recover 


0CT09IER TERM, 1804. " iSS 

'Walker et al. t».' Roti^ Smith. ■' 

A» balance. In tlie ^recount forwarded by tite Mendaiit, tatht 
plakiiifis, after the failure of- Brown, and the GOBpr^miae, ii» 
.comtnissions arfe chairged* ' , . 

IngenoU, for defendant, coBtand^d^ thdrt a •discvatkm. was 
tliven t|ie defendant to take security or not ; that he acted 4» 
jkiie beat, without a view to any compensation whatever ; airf 
having himself trusted Brown^ he had done for plaintiffs, as he 
'Would have'dooe for himself, ije therefore argued, that the 
iMntiffs were not dniWedto vecoyer at all. . But if they were, 
be insisted, that it was in the discretion of the jury to find such 
damage, less than the losa sustained* by the they 
migbt think right; taking intO'Coastder^ion all Hie favourable 
ei?Giiin8$anGes which attended the defoudant's case. He cked^ 
1 Dali 180. 2 Wils.^8. 2Bac. Abr.366i. Bull. 156. 1 Espan; 

' Both those positions were ably 'coasbeted, by Sergeant and 
Dallas, for the pUdatiffs. 

WASHIJ^GTOJ^^ J^ charged the jury. This is a short and 
perfectly dear case. The facts are few, and agreed between 
the parties; i^is my duty to state to you the law, and to ap]^ 
it to the case. The princq>le8 of law^ as applied to the dnties 
^d *obiig«tioRs of agents, have beeh correctly stated by the ^ 
plaintiflii' counsel. No awi tan compel another to render him 
acta of friendship, or senrices of any-kind, whether gratuitously,' 
or with a view to a remuneration. Biit, if the person applied ,- 
to, cenisents to Ander the service, and undertakes the business, 
he is bound to act in eoaformity to the terms. on which the ^ 
request was made. This tule is universal in its application, 
whatever may be the aituntions or professions of the parties ; 
but, in commercial agencies, it is of greafcoosequehce, that it 
should be rigidly enforced. The defendant, by receiving the 
goods, and undertaking to act concerning them, bound himself 
to hold them, until paid forj'or secured by Brow)> ; and on his 
to do either, to di^^se of them for account of the plain*; 
U * 


« Waiker rt al* «•• Robert Smith. 

liA* But w.lMft hM be done ? If e deliTbMt tkem to Bro«% 
witlftsiit-rocwruig parent or ■•entity ; he did the very thiof 
he was cautioned not to do. The diacrelioo which the deieiid- 
ant hady waa oenfioad to the kind of security to be taken, and 
did not leave him at liberty to take security; or deKter iht 
goods without any, as he might think proper. Had-hetahOD 
security, which afterwards became insufficient, he would haye 
been escused ; provided he acted with that caution and pm- 
dence, which he woold have observed in his own case. Tli^ 
defendant, by the very*, nature of the transaction, was emUed 
to a rmmnfiisaian, ai certaisly as if the plaintiffs had promise 
it ; and his relinquishing this compenaatfen, after the loss had 
Idken place, cannot alter the. case. Indeed, he would have been 
li^e, if it had been undertaken gratuitously. There was no 
ambiguity in the plaintiff's letter upon the subject ; and thcp^ 
Jbre, the defendant is without excuse, and has taken upon idm- 
self to answer for the loss. He has made J^mself a guarantee 
of the debt. 

The next question is, as to tlie damages ? I admit the prin- 
ciple, that in cases sounding in damages, the amount of those 
damages depends upon the sound discretion of^the jury. In 
cases, where merely vindictive damages are suedtfer, the jiiry 
aet without control on this subject ; beoanse there is no legal 
rule by which they can be measured ; and unless they'aae so 
extravagant, as to induce a suspicion of imprc^r conduct, the 
Court will not interfere. But in these caseSy whe^ a rule, can 
be discovered ; the jury are bound to adopt it. That rule is, 
that the plaintiff should recover so mut h, aa will repair the in; 
jury sustained by the misconduct of the defendant ; and apply* 
ing this rule to the present case, what other measure of danta* 
ges can be thought of, but the sum lost to the plaintiff by the 
violation of his orders? The sum demanded, is of no great con* 
sequence, perhaps, to either of the parties, on the score of ita 
qonount. But the question Itself is Important to the commercial 


f n 




Walker et al i». Robert Snith. 

inCensts of thk country; in its intercourse wttli fiireig;n nations. 
A precedent is to be set to determine in a case like this, whether 
an agent is liable for a breach of orders, and to » What amount. 

TIfe jury found fer the plaintiff; but a sum much inferior 
to the loss he had sustained. 

' . 



Roberts w. Gallagher. 


A bill of exchange remitted in payipent of a debt due to the pcTson to 
whom it is sent, where the amount of the bill is lost by the ne|^ljgence of 
the person to whom it was transniitted, is to be conadered as payment of 
the debt. 

If a bill is remitted to an agent to neg^tiate^ or ooOflct, and the amoant is 
lost by negli^eiiee. • 

If a bill <^ exchange, or a promiq^oif Mtey is f^ren^and received in aaitiafic- 
tlon of a precedent debt, the laches of the holder, by which the amount 

■ due upon the bill is los^ witt prevent a claim Clpon the person from whom 
it was received in pajrment ^ 

JL His was a motion for a new trial ; and 2 Blacks. Rep. 955. 
5 Burr. 2633 were cited, to show paaes in which they had been 
{^nted, and supposed to apply to this case. 

To prove that the bill of exchange, remitted, by defendlint to 
plaintiff, ought, if by plaintifPs neglect it was made his own, 
to amoiu^t to a payment. 2 Wils. 353, was cited; 

IVA^HIJSTG TOJ^Tj J. It does not appear by the defendant's 
own statement, that if the cause were now to come on again for 
a new trial, it would differ at all from what it appeared on the 
trial the oth^r day. The Court left it to the jurf to say, upon 
(he evidence, whether the bill was remitted to the plaintifF in 
payment, or on account of the debt due to the plaintiff; and if 
they were satisfied of that fact, and that by the neglect of the 
pl^ntiff the debt had been lost, they were to consider it as a 
paymdit. But if it were only remitted to plaintiff as an agent, 
to negotiate or collect, and it had been lost by hb negligence^ 
he could only be liable in damages for his misconduct, but it 
was no payment. If only accountable for damages, they could 
not be offset. 

* « 

.* • 

# '-^ 




Bob«rtB fw. GdlaglMr. 

By the ertdenccy nothing more appeared) but. that Robert 
Morris had sdd a bill to tKe defendant, in December 1793; that 

• ft 

such a biU was protested in JiiiisJ|'94) as appeared by a charge 
in the pkmtifiTa accowit, of the dosts of ths protdst, and that 
in 1794, or perhaps 1795, Morris was able, and would have 
taken it op, if it had been returned to him. But no evidenos 
was cMbred to shov oi^ what acceuat the bill was remitted, nor 


is it DOW stated that this could be shown. Upon this eridence, 
the jury disallowed the'^Pedlt, and we cannot say, that they 
ought tp have done otherMse. 

In Clark v«. Mundall^it was dcftermined, lha( a bill of ex- 
ckaage, or iK>te, was nit a^payssaat of .an antecedeat ddH, he- 
cause of the same ^gnity, unless it was not recei^ad as such, 
and the kiches l»f the holder £d not make it a payment.' After 
this, the statute Anne • ' passed, and I admit the dpc- 

trine to be now general in England, that . if a bill or note be 
H^iren in payment, sati^&»:tion, or on account of a precedent 
debt^ that the laches of tha. holder may make it a payment. 
But lit lauafe appear ta hav^, been receiTed as a payment of a 
pre-existing debt. ' 

' BeMdes^the defendant in ^is case, was fiiulty in two respects. 
Nasica -was gtren to him, ta produce letters^ from which k 
might have pppeared' whether notise of 'Ika protest had, or had 
not been given. Tbe pkdotiff could not be expected to prove 
notice, since he was not apprised of the dafimdant's intention to 
claiak this as a tredit. . On« these groundi^ k would be impro- 
per, I think, to grant anew trkU. 

Judge Peters was also agunst the new trial. 



Kohne t». The Inwnsoe Can^any of Noith America. 

Kohne vs, Trb hrtfuitANOE ComHany ov North AftsfttcA. 

> 4 

Action on a policy of iawnnce. 

The uDderwriter, by consenting to take uyon biintalf A lial^ wblcb tlie 
assured i^ not willing to bear, doea it always wider an iaipli^ Gon<$tioni 
that he shall, as to all facta within the^^Dwate knowledge ef the aaaured^ 
be equally informed as himself; have the flane opportunity of measuring 
the extent of the danger ; afid be enabled to judge of the dompensatioD, 
at D^eh he wooHF tldnlc it prudent to entbt into the contract 

Tke unM^vftttfia 'always aupposed to be ltei|irtn>fil "wMi.fnMic trwwn 
tioBs, ibreigR Iwva or otdinaacet^ the comae of natuie and ef tn^e^ 

411 circumstancea in themaelves peculiar, and which nmy be majeriaij and 
which are in the knowledge of the assured only; should be stated to the 

The laws of the United States, relative to the importation of merchandise, 
require that the goods imported shall be }anded» It is not a compliance 
wi(}i thoae Umts, to bond, or pay the deties tm toiputUti on, nA pennA^ 
tke goeda to b e reexported, wMmi kfag ^mM. 

JL HIS cause came on to be ro^tried «t tlus tena.. Tlie evi- 
dence g^en ait tke last temii was Jigfua produoody and iit addi^ 
ftwB tkereto, a pomplefte veeerd of llie- peocee^Bfa ib tlie Vice 
Admiralty Court at Haii£aa, was pnodiice|l) andresd. Iirttis 
atated at length, the icillomig {H^MBra. 

A paaaport from the Spanish Comply itt Charleaton, to the 
plaintiff, 17th February 1799, to ge te Laguira, to attend to 
his concerns there. A clearance for the Gadsden and cargo at 
Laguira; stating that a cargo of coc6a and tobacco had, by 
special permission of the intendant, been shipped on board the 
Gadsden, for Charleston, with leaye to touch at Porto Qabello ; 
and that the said goods were free of duty, by order of th<$ in- 
tendant. Another clearance at Porto Cabello, for the United 
States, the duties being paid. A passport of the Spanish Consul 
at Charleston, dated 18th June 1799 \ for the plaintiff to go to 

OCTOBBS TERM, 1604. ' 15D 


Kohne w. The Itisunmce Company <if North America. 

. _ ■ , I* 

SptilD ; and a certificate that the cargo was from.Laguira, and * 
Porto Cabello, as appears by the above jnentioned Spanish 
pa^ni, which he certifies. 

I ' The- Ulowing new testitnony was given : Mr» Buntiti was in 
Laguira, wHen plaintiff arrived there. He*sold part of his cargo 
to the intendant there; and was to receive hi return, cocoa, tobac- 
co, and some specie, and to be fitte of duties upon his inward, 
aa wifll as outward cargo ; from theime he went to Porto Ca- 
belk>, where he sold the rest of his cargo, and took in cocoa, 
hides,' kc* and left a quantity, which he could not bring «way, 
in the king's warehouses. It was proved by two or three 
witnesses, that it was practised in Charleston, and had been 
done in a few instances at Philadelphia; for yessels coming 
from the Spanish cdonies, by special permission of the cdllect* 
or, to encev there, secure the duties, and clear out for Spain ; 
without landing the cargo^ That policies on such cargo had 
been underwritten at Cfaaaleston, and by private underwriters 
in Philadelphia; and .upon a.disclosure of those facts, they had 
been dcme at ten per eent. ; and that the circumstance of not 
landtng made no difierence in the premium; until it was known 
that the.Briti^ CouKs condemned such vessels and cargoes. 
That it was -some time after the Insurance in question, that the 
difference was made. 

V Am^ongst the papers, found on board the Gadsden, when she 
was captured; was a letter from plaiDdfT to his clerk in Charles'* 
toni saying; that he. did not wish to run any risk except as to 
the ship, but that the cargo must be insured, cost what it would^ 
"in Kohne's answer to the libel, he states, that special permis- 
skm to enter and clear, without lanteg, was granted to some, 
an matter of* favour, but not to eV^ery one. ' 

et The only point argued af this trial, was the materialit)r of the • 


• ekcuiaBtanees which attended this cargo, particularly the not 
landing at Charleston, and whether the plaintiff ought to have 
ilisclosed them. To prove that it was an importation, though , 
not landed, the plaintiff's counsel cited, Bunb. 79. 12 Cok. if. 


Kohne t». The Iiwiivnce Company of North America. 

■ g ' ' ' '^ ■ 

In addition to die argumcDte arg«d hj the.defendMitSy attte 
last trial, they contended ; that by the revenue laws of Congress^ 
the goods ought to have been landed at Charleston; and they 
relied upon certain passages in the 4th vol. of the Laws of tht^ 
United Sutes, in pages 380. 397. 399. 400. 411. 

WASHI^GTO/<fy J.<i charged the jury. I am much pleased 
that a new-trial was granted in this cause. I was notniatlafied 
with the verdict, yet I felt some little hesitation about setting 
it aside; not knowing whether the jury went upon the uamate- 
riality of the circumstance of not landing the cargo, to the rishs 
or upon Some legal point, on which the Court had charged them. 
But I was principally influenced by thd importance of the ques- 
tion, and an expectation that the evidence would be more ccun* 
plete; and the counsel would be better prepared to devote their 
attention to the only question in the cau^e. In both respects, I 
have been gratified ; instead of extracts of the proceedings at 
Hali&x, we have now the entire record, (a) and net^ te8tim<Hiy 
has been introduced, as to the custom of not landing, and the 
materiality of that circumataaoe to the risk. The question, 
what is a legal importation, according to the Laws of Congress, 
was only hinted at then ; and has now b^en thoioughiy argued. 
This is the case of an insurance on a carga on board the 
Gadsden, at and from Newport, to Passage in Spain, effected 
on the 12th of Octo^r 1799. But as the previous history of 
the ship.and cargo, forms the whole ground of difficulty in dre 
case, it becomes necessary for Che jury perfectly to understand ft< 
It appears, that the plaintiff left Charleston in February 1799," 
in this ship, with a cargo of flour fi>r Laguira ; taking with him 
a passport from the Spanish Consul at -Charleston, to go t» 
• Laguira, to attend to his concerns; that he arrived at Laguim 
on ^he 23d, entered into a contract with the intendant for the 

(a) Bead wiflioQi objection ^ and «ie .evidence^ it affoided, signed bom 



sk; ' 


trrM thn ke 

lt« KgecK, and 
1 be Free fnus 
rva clcvajoc^ 


D tlie * 


iton,) ' 

r thft 
It fir 



1 OBf 

4 within^ the print*' 

fsd as kinuelf ; li&vs 

tt of th* droger, 

I, at wbicb he would 

As to public 

course sad nature 

Tected, ttMC.unden- 

inFormed as the as- 

If kDown. The 

inquire into fact% 

ttb*Mt UadiDgtbe 
Ib^iott in a Britisk 
torder issued hf Ae , 
Mtned Teasels to brine 
^g direoltr between 
PiMiacta, and any 
rthe country to whick ■ 
I is tOBisted ; that no , 
gfT knew of the order.. ' 
Jig home to the plain- 


.'[ if S :'R £] ^ :i M M n |2 ^ Tlwtwhicli 

J 'I ij S§ H H y H W i\ Sf H '•«■">' i"^ 

^ ^ ditcsTery of 

i^ltiSliizelijSii ilit; i^itmi/'f- 






^M— i— — 11—— i^— ir , Ipi ' 1. 1 mi' II II ■ I -Ti -■■ -If ■ 11 T -i - wi 

Kohne M. The Insimnce CompiMiy of Noilli Atneriou 

r, .-• I ' ■ . ■■• r - -11 ..r .in ■ 

itaovecl, tlie transaction n not rendered fess illegal) by ^e fit-, 
tempt to conceal its real character. 

So on the other hand, if the voyage had really been tdt!^a^46s-> 

. ton, the cargo landed, etftefed, atvd'^'duties sectired-; a ^determi- 
nation, fbrmed^on second thonght, to send the cargoto SpanH* 

, trouM not render if a "fiitet trtdSng from Lag^ira to Spaiiiy 

■ though the goods never were warehoused or removed from the 
whaif . The circuitfttance of warehousing, would be no more 
evidence of a tttnixftde importation— a kind of testimony of the 
fthicerxty of the transaction. 

It has been inslsfed by the defendants* counsel, that the tvx- 
jence is i(trong enough to prove, that the original voyage wli& 
fetsm Laguira and Portb Cabello to Spafn, and that the calling 
iX CharieatoA wai TttcreJy c<^ourable. To prove this, the de- 
fendants rely on the foHolrTng inrcumistances : the nature dt 
ttte cargo, cocoa and indigo, Vhidh could not have been intended^ 
Ibrcoitttimption in the 'Uhlted States. ' The answer to this isi 
that the plmtiff had an ttltericA* viesr, as no doubt he bad, to 

' flie Spaniah inarket for thcseniWIcles ; If the voyage from Lar 
guira'was reiAly to Charleston, and'^tffe ttnportation there com« 
I>lete ; it could not be 'temiiA a direct trade between Lagtilra 
Imd Spain I aiM thlk conclusion, f think peifectly just. The 
dther circunwtaiSces relied upon are, the reasons assigned fo^ 


the special permission not to land, to save time and expens^ 
tod granted only in cases where the goods «*& intended lor ex«^ 
portation. The passport *of the Spanish ^eohsiA to'^guii^* 
H^hidi, though it had asmweted iu int^tkhftd ))\irpose'as*!ib<$n m' 
h was shown to the Intendant the^, watr AS carefully preserfi* 
%d, atid wa% found amongst the papers ar$he time of the^ap"*.' 
tare. The sale to a Spanish officer, under i 4;ootnkct, in no 
flimner accounted' for; and of an exemption flNnil^tf^s on fhte 
Inward imd outward cargo. The cleaf^UMseit Laguira aad PbrCb 
Cabefb. The passport, of the Spanish consul at Charleston, to 
Spain, ttfl'hb certificate thaf' the cargo (not landed at Charles* • 
tlMi) was from liaguira and. Porto ^Qabello, ii^di %ia Mfbenlf* 


• . ♦ • . • • 

V < f- 




i B«>iiMt%efM> 












• » 

• i OCTOBER TERM, 1804^ * 167 

* ^ 

■ ■ ■ ' I. > ■ 

Kohne w. The Insurance CompAny of North America. 

consideration. It is ptoved^ that tbe defendants always rejected 
such risks, or demanded such high premiums, as to turn away 
applicants. On the other hand, it is proved, tlu|.t in Charieston, 
and by frigate underwriters in Philadelphia,* those circum- 
stances made no difference in the premium. The defendants,^ 
no doubt, construed the English orders, and jthe Acts of Con- 
gress, as the Court does-^the other underwriters differently. 
With these observations, I shall leave ^the case with the 


The jury foun^ a special verdict, in which they ask the opi- 
nion of the Court, whether a landing at Charleston was neces- 
sary. . . . . ' 

Judgment on the verdict for defendants. 

* 4 . > 







• • • . 



< .... 

» • 


• / • 




tlie pivtciple, the ini 

ae the original Jitven- 

JSit An imptovenient in 


t 91 

t« re n 

K s si 


ftaS; MMcnee preiv M W. 
iA EiJMdapluDtiff inyiw. 
C^ t tiM atlMiO}* Kquitttii.. '. 

£9 for the inv&sion of 
Br rounding iroD. U 


''' ■ ■ 1 ■ •■ • • 

OCTWEtt t&fiM, IS04. Hi 

^_^^__1^__ ~iTT~irrT I ■i<ii ■■■!*■*—■—— <rtf armJi 

ftp^bafed iff^idenee, tBit ifa^ defendant^ KMfotHly was a 9t^ 
^^, «ih} lid on Ms flhrm, a GOHiiUkm tHt, or hiiinmftr arid antlf^ 
#cirked }^ wit«r. The pfM^ff, a Gernilhi, iM-poor; iiift^MQltft 
k«ii0«M| tiUtt M had hiveiited a maeHliit hr roundifig ilM| 
bat^ from wdnt of faiiftA, had not bien alri^ ti» bHng his tliaot]^ 
to practke. H4» profjkised to KaMMrrs, t^ oamttt his cdHiOdiM 
tilt xnCcHach k machme, and that he would work at it^ ftit th« 
benefit of Kanoi^ fdb a certaki sum Ut mch tM-bf atldi HA 
wfaich lie should inidse. HatMff mckwed Ms ffUi, wHteli #«l 
to tito n^thiniet^ of tnti^ficnt ' cScNfcaTes y Katlbwrs o^6ctM w 
tbat, and propose, ijBftteaA of difthr^t hammers^ the ctse it 
.^Wedges. After some disagfe^^ht, #ho8e pMh iOmM' hi 
adopted^ ti edl^AMise took pla^ei, hj freeing fiMt t6 Iff 
lliel iwkd^esj whfch was dotte^ iMid feund to answer so weHy tiiat 
mey were uerer ameiwi* i oe 'piwiiuiry after wuimig w^wk 
0t two for Kanowrs at ttds tilt, in 1797, took a lease of it,.(to* 
|fetbe> wKk a paH of thfc ibmO for thrte rears ; itukyjlh^ras 
ik ctiVMarit, dfi Ike part ^f tht plaintiff, te de^ivei^idk, Ht OH 
iMft 6f ^e term, tUk lilt, witii erety tliitig betorii^irit i« it, ■ 
le ^B6d ctnidltioa tf fie kffd Msiiire« it Thia wfl* adiN»r^W|lf 
Mti^^ IMd ike pldiiitlffj hitHa^ MraH a0c|[nlMd th^ tttelbw^ M^M^ 
ifov^tf frata^Siaiswrs'; ind, ih tiOl, tsMe^kf a «k,'preMrif ' 
ike fb^ tsM Vh hM l^. Tlte iefkndattt,-lilK>il^, theh tMM 
ttb did Ot t6 tiie Mad dlxfimdtot^ Grannt; whd lias cttMkMM 
ttflMl it 4f# MteV It wis ptoved, that the pKHitlff imf raK^ 
A6wrs ilk«?e te ib iit partkersliip in Hie ben^ktil of tMH (Bsed^ 
liMy;; Md were to oMaiiT a pitttsiit in y^ iattii 

^iMiililftook it cm iN klk«NMf name,* Of the year ifm ; aliS it 
■ tnft accounted ftv, how tkfe tteMMTIi tfidM #aa oMitM 
ttm wilitess said, that Id had; sliiee the ^rectbti c^f tM* m^ 
ckuie, seen idkpofted bolts, Irkiell apf^eatetf to MA to htf% b^ill 
kniilM wKk i iksdllir «i^^ 

TfboMftis ihHl M^ei by DifTii a6d SeffgMit^ fe^ ]ilaifif4l ^ 
Arf By IMItfvi It^!Mtt^andOk«rM^ 7. Inj^WkoH, fe^ ddiehd^ift 



iro. ^ • - PENNSYLVANIA, 

Beutgen «i. Kanown and Gmiuit 

uMd 1^ d^bndant, wm diflnreiit in pmcqyle, fimi t||it aeo* 
tiiHied in. tlM pltdiitiff's ipecificatioti : thai .there wtufWO^deal^ 
tvidence for th« jury, to say, the plaintiff was not the origipal 
wentor; but had brought it with him from Germittfi: thai 
ke could not, at anj rate, plover; as th^re waa a partnersh^ 
agreement betweieii. Ifae parti^% sufficient . to constitute the 
plaintiff a trustee for defendant, Kanowrs: that the lease from 
Kanowrs to plaintiS^ waa an acknowledgment of his right to the 
machine in %jM«aUnni th9 only one which it waa pretended the 
defendants had, used : and, lastly, that there being no evidence 
that Kanowrs had eyer used the machine himself; this acvtiCHi, 
being joint against Kanowrs and Graunt, the plaintiff cannot 
recover, tjfpugh he li^ prov^ it to have been used by. Graunt. 
The c^mund of the plaintiff was, under the Act of 1 7th Apr^ 
}JilQ».for ^DBe timea the fiahMof (he damages sustained. 

WASfflArGTOJ^y J. chargei} thn jury, Your first ibquiqr 
IS) whether Ihe plaintiff waa tbeoiiginal inventM* of the machine 
paentioned in bis patent and spccifica^oqi.^ One witness kMk 
atftod, that he il^aa seen ipn^oitiid fa!j0it% aincia tboacimade by tte 
^teiiHiA which ^ot^fk/bd to have been made with the same m% 
i^iiae. WlHyther tlie imrentjpn is of Europe;^ (pagin, «nd im* 
pnded here kf tfai plwntiff ; or has, since the erec^on of hif . 
inachine, beea carried to Europe, is a question most <proper iqf « 
l^r detormmtioo* It k qnly necessary fat nio..tiq^jstales tJkatf 
iCthe invention was hro\u|hi oVer, that ia^if itn^pea/ta iJuit tl^ 
|4f|intiilf W«3 opt t|i» ^gglnal Jinte^tor, in reference ta <Am 
parts of ibe world as well ;as Americib. b« ia not entitlod t9«4 
patent. Tliis poiat baa bQaqi4eci^e4 otj^erwise in EngUnd^^ 
ciMMtqiience of the e]^lffess]nQs•f tha iftatute of Jamea I. wkiiqli 
speaks, of new maiHifactures wit Aim tkt realm* 

Your second inquiry is, have the ^dmAffitM^ or either oH 
|hem, used a laaehine the one mentioned ia the 
plaintiff's pateai;.and epecificatiinL The . specification stalif 
t|»ep»i<ej»|f»»iU<3pa{. fAa tfc ttm 


. ''I ■ 

.k ' 

■ OCTOBER TERM, 1^04. 




Kcvttgen w, Kahowtb and Grftnnt. 

Mj^ht pMtSy (br a hammer to mor^ iti, and to lye opemted by a 
cog-wfieel, connected with the handle* of the hafihmer; tho 
finree) wttor, or any thing elae; corresfKmAng eoncaveain tfaa 
bamm^r' and anvil. The machine used by the defendant^ 
CrrauMf b of that description ; but In addi^ony^lredges are used; 
The q«ie«tion b, ia the defendaAt's impforement df awedges, ail 
improvement on the firinciftle^ or the form^ or t^mfiortioif of 
the plaintiff's machine; if the first, he' has as thuch ri^^t to 
use Iria improvement, as the plattftlfF has to \i%t his original in« 
vention. If e%herwiie, and' the defendant has used the original 
kirrention, thus altered, it is a violation of the plaintiff's right. 
The next inquiry is closely connected with the last. Does 
tte apeeifitatloa ^contain the whole truth, relative to the ifiaco* 
very; and if nol, has( it bfien concecded «rf/A a view Hr^etttv&f 
Aa to the materiality of Che thing tialrcealed, could aif artistj 
ifter plaintiff's right ia expired^ construct such a machine hf 
topking at the apeetEeaimi ? This also ia a question fer the 

I have hurried over these points, because it strikea the'Couft^ 
iMt thieire remain to be tfoaaidered, much wyrts imfkntant 6b^ 
jtcfteis 16 Idle platntiff.^a right to recover. * 

It iiih proof, (if the^witnessed are ere<^ed by thto jury,) that 

Uto mhchine used by the defendant Graunt, waft erected om 

Siihewra' land, al his expense. That before it wacdone^ 

KanowNf nifoii bearing the plan, auggeated- the ilkiprovemeo| 

of swedes, wMch' was adopted, and* has since received the 

iMteMrs approbation. That the plakEtiff fl*equently acknow- 

I w l j^e d the joint rigflt of the defendaiil, to tile ihv«ntioOi a« 

(larCiierahip property; tmd that th^ patent was to be t^ken In 

Aielf joint tMmes. If tile jury are sfitisfied of these facts, and 

' tluft the defendant clid not relinquish his right to a joint interest 

in the patent right, then the plaintiff was guilty of a fraud, in 

obtaining it in his own name ; he is in equity a trustee for the 

dkfsBdmt; and tHougb^ possibly,' at law, a vo^ict muftt be ren* 

teed te^plalhtll^ aliQi the jury may (ive mersly aomiiial 


t ' » 



HeiKtgen w. ^Lanown aiijd Gzaunt. 

iOliofi a§imit ai^ pusm» wIm> y WUten tke ris^t of tl^f^ plMOll^ 
mf^A^t M c g <i » i i # l«i writing. V^w/this macliMm v«^ fTtcl* 
(^ on tbe d4firiiduit> byd^ bftlie pisinlHr, mi i^t thil? J ti BurtwH 
K»opvr8' expMl6« After iikia» tl|e pfaitetiff t«p)L » k«Mtf li 
Ibr tiusee yetfrs; tber«bff acknoifledging the ligbt of iitb tk^ 
femdmit, Kmowrs, to this particular maehiii^ ^od car«iiaii$8 to 
ieliT^r k up to him at the end of the term, with every thing 
bdoBging to it, in oa gpood ofder as he received it. Tlial is, t^ 
deliver up, Uk the hamiaer, and anvil in its.origioal fonp; bfrt 

* the whole tilt, with the improveni^its made oq it bj t&e pleii* 
lift Now, tUa covenant acknowledges the n%hX of |Lm»wrs 
to fthb 4dentical machine, and necesaerily the right to o«e it. If 
he bto graated the tUt to the defendant, be ha^, in lew* granie4 
the uae ef it$ and conse^nendy he cennat now t^^ thet th^ 49^ 
^ndant has used it without has licenae in writing. If he tum % 
■glht to the machine, and to the we- of it^ he has a rjgbt %» 
work it himself, or by his servants, or to lease it out to any 
ftthBr peveom 
Aa to tholasfr point rntde by th» dMandept^e countel; I mi 

- of opifiion, that if the above poiitts were in fiivctnr gf the phin* 
til^ he might vecotver againsr Gniunt,- though no pndof wfie 

' gbren against Kanowrs. For all torts are joint, ea*weB ssaevwt 
leJ^ wd the plaiatiff may recover a verdict against one,' thongk 
the pther defendant be acquitted : otherwiae in oAttnuot* • - 

> - Jury fimmd'fi^ $i^^ 4nfimidmu* 


K/if^— If fte e^Btfict vS ieven4 be jomlV :v0A Mm of the pt«Mi he 
fpedi be lAs; plead iq abateineai» that the olhen are not joined; but bf 
' cannot take advantage of it at the triSluRlthoiigb i| appear on (jh^ftuc^ ^the 
declaration^ that there are other parties to the contn|Kt But, if qne a^e 
or bind himself to several, and one sue ; the defendant may demur, upon 
oyer, of the contract ; or in assumpsit, he may take advantage of it on tft 
trial. 3 Bhui. Rep. €96*. 1 Saund. 154. n. 391. ' 

If, in treftpasa againat two, they bofii plead jointfy( a aewail ver^et e4ls> 


, \ ' 


bGTQ«$fUTPH»l> H04. 

l^ut^n cf, |C^Qyi)| ^ Graunt. 


nil l>JL-. 

pkM^ ■era»] itwjWiftf maj be asseMed. The Jmy imty find' them severaHy 
g6illy as to part, and not gmity as to. part; but may assess damages sevenHy. 
1 Esp. N. P. 419, 420. Bull 93. 2 Strange, 1140. 5Buit. 2r9e: 

fn all caaes-of trespass, the jury may find one defendant goU^t Mid tbe 
bther not guihy. lE^.N.P,3a3. BatiateBliaets»tfthe aiBlioa ia%aiiwt 
aevewd, and it cMmat be WMK»ie^ tg|in# jj^ % whoUy Ms. See 3 Eaat, 
'Ml Bfini^ Potbier* 3 vot 67. Ifoneoftbe joint eontnctcMB bean infimt, 
lint ctfier two m«r be sued $ and if they l>lead in abatement, the plaintilF 
may reply the inmcy of that one. But if he sue all, and one plead hii 
infimcy ; judgment must be ^ven against the plaintiff. 2 Evans's Pothier, 67. 
This is stated in a note, but the authority is not git'en. W. 


. « 

*. « 

. / 


■ • 

174 fENNSYtyANTA, 

ABen w. Ogden. 

' Aii.BH vn Ogden. 


• • 1 

. IIThere a poweir to an agent is g^Qneral, he may do any tliii% to biml his prin* 

ctpa]» whieh is witbin tiie scope of his authority. 
If the ag^cy be ^Mcii^ eveiy thing b vend, which may be done, unfeas in 

itnct conformity with the authority. 
I^ upon demand, the defendant said he would retain the goods taMnM^ 

and that he knew a suit would be brought; this is evidence of a conf«»« 


When a party, holding goods m his possesmon adversely, has paid rent fbp 
the preiuaes m which they are stoied ; it is not necesasry to tender the 
renly in O0d«r to enable the owner of the goods to recover ihem in ail 
action of irovcSi 

liens depend upon contracts, ea^ceas^w imi^iedi and (lone can be inpfied^ 
where the defendant acta adveisaly tp thn right* of the peraon te wiMMi 
he has paid the money. * - 

Jl he cstte will appear in the .charge ^ the CouH. 

WASHING TOJ^i J, Thb' is an action oC trover and conrer- 


aioD, fi^ forty -one tenr of pig iron. John Davis, in Janoary 1 903; 
¥eing poaaesse4 of a quantity of pig iron,'at different placea^ 
a^d am^Bipat odiers, the quai^y in qucstkMi» it heing m %mmi^ 
tent's yardy in New-YoH|| rented by Davis as a place ef depeiit 
for that article; eoipowered h Mr. Cbampki^ in New-York^iB 
vpriifingi to sell the same for the lugbest nvirket price in earii'; ^ 
or if this could not be done, to offer the sane to the deCniMtty- 
mtthe market price, on oepditien that be dieuM pay dewnOQpO 
dollars, and that the* t^miue might. fo to th^ eM^t of Dfivisy 
against a demand wliich O^/kftL, h«d in h|s own right, or as 
agent against Daviii. . The offer was made to.Ogden in Febru* 
aiy, but he t()ok'time to consider, and tiever afterwards gave t 



-■ *- -^ 


OCTOBER rmu^ i804«x ' m 

. ^ ABen «f . Ogdm. ^ 

iB iiwMr^lo tiiil pvcyositioiu CbfmpIeaA sold the iixm to 
Wai|uai;-bttt aUterwaidsy upon receiving a letter from Dftvisi 
*P^F*1fffg lum that he had sold all the iron $o the pkdntiffy hi^ 
iChampl^aa, cancelled the aale. he had made. The sale to the* 
pbintiff waa made od the. 6th of Febraaryy at is dollars a toii,| 
vjiichp with the expense of removing a* greal part of it, van 
wppbMd equivalent to the ma^^et price in New- York, and thu 
faiount was to go to Davia's credit, against a demand of the 
plaintiff; and if the iron should be sold for mpre than the 35 
dollars, and expenses, the excess was also te be placed to the 
<oi«dU ^aaid Oavia. On the 19th of Febtwuy, a bill of paicda 
was. delivered to the plaintiff, on which day, the credit was en- 
lered objhe plaintiff's books. The sale to the j^aintiff, is 
proved biy Davis, to have been real and bonajide. Late in Fe- 
bruary, Champless being alarmed by a letter from a Mr. Bond, 
atatingi th^t unless a note of Davis's for 600 jdollars was paid, 
the iron would be sfcrifioad, thought he would baoeftt Davis by 
oeUiog it to Qgdem provided this .could b^ done. The subject 
jras proposed to Ogd^sn^ and - the origitfial powet to Champlesi 
laid before counsel; ^gnA the sale to the plaintiff revealed both tA 
the defiradant) and his counsel. The counsel' thought the sale t9 
the defendant mig^ nevortheleas be valid,.and in consequence 
of thi^ the sale was made, on the 1st March, for ^ 2 50 cts. ks^ 
thiol the market price; and th&wbof e amount was agreed to be 
jfiut to the credit of Davis, against- t||e claim of defendant, aj^ 
before mi^iwiid^ The defendani paid th^ rent dueto Swar- 
toat, and reasaved the iron fi^pm the yai4< The defendant iat^ 
. foined one of the witnesses, that the plaintiff had claimed of 
hiia the iron, aad that there would be a suit about'it. The de- 
fendaafc also said he would retain the iron* 

upon* this case, if the witneSaea who prove it on the part of 
th)|pl(Mntiff, (for ^dcfe^d^t has called none,) be believed, one 
tiUof; is ^ipMTf and that is, Jtot whether the plaintiff has a right 
or ift(,«the defendant omt elearly has bone. The authority t0 

I - 


Champless was sp'ecifti, and therefore MHi hafl lio po^AWsfll 
.the iron to tfte dtifdbnda&t, lipon anf other iehns thlin #<MMii^ 
«bao dollM W ctett; yot it t^as sold 6n tehns te^y dl K iUl t 
Whei^e a power is general, the Attorney inaj ttb aiff fHtig to. 
bind his prHi6^yal, which is ^Hdiin the scc^e df his authori^. 
fiut if it be speckA, ev^thihg is tofid, if he ddes n6t 9^i in striei 
tonforfnity t6 hiiH authority. But, if the po^.er Had beeti giflKL 
^l^.stili, every thitfg done und^r it, after it wa^ revok^, ilhft . 
this ms(de known t6 the defendant, (as in this case it was,) wai 
told. • ; 

As to thfc pkdhtiflr'i title, it is cothfitete, if the witn«Mii« <tt 
Utieved. The nicnhehc the sale took iflAce, Davin witil rfecSif- 
hig credit for the tobuht ; ds much io, aift if he had ieteived 4 
much tn6ney^: detlir^f y of the irbh xMkk ^aa( nbt ndteaMti*^. 

Ttro objections t^ere hiad^ to the jflaltitHP's right (^ refeo-< 
v(^; firfit, in tbfe fii^hiir df it nlotidn Art* d Adttsttit, ahd then be* 
fore the jdry. i'irst, tSat a convefsion Is ndt |irov4d. It % 
proved that the itoti had bceh demanded, and the deftbdaot sdl 
he would retain it, and that a stiit wonM be brouglit This ft 
evidence of a conversion: S^conflljr, tfiat the plal&tiir ou^ft^ 
Before he brought hi^ suit, to* have tendered the iflottey paidb^ 
defendant, for the rent of the 3fard. Kd case can be prodncCfdy* 
Iti. which it Is necessary to do thl^, wherfe tiie defendant acti 
under a claihl ot property, iiSktiti^ to the plaintiiF's ri^liL fit #e, 
Ogden, withoot d shadoW of title, iiiterfei^ with the |&ttftiff*% 
property ; removes it fl^Mfi the pilace whhre* he lind d t t< <i >In A 
it ; and now claitiis what he fiad 'oAiciotTsfy pstidj in order fb ^^k 
him possession. Liens depend trpcrti bontrdct^,' etp^!^, d^ iin- 
plied ; and nohe can be implied, wbere the def^^ant acts ad- 
versely to the right df thef petson, fof tehoiti \^t tiKs pifd fire 

• ■ • 


Cases cited, to sho\V that a Xitii etls^s in th& ctfte. 9 HiAr. 
Rep. 337. H Shoir. 2^. 3 3^. 6'^4:'Ltf. tiVjih. ^M. 4 Surr. 
5214. * 

Cases cited to shorw, that if a man aaaumes ai light lo «n« 

I 4 


OCTOBER TERM, 1804« lit 

AMba i«. Ogden. 

> I I ■ » ■ 'TT 

ifllip'* IHMip^f f tti if t^y were hb own* it is a convmiMi. 3 • 
T^lpn. jlep. 357. 6 Mod. 313. 6 B»c. Abr. 679, last edition. . 

. , Ferdicifor fildiniiff. 

NoT]B.-*^He who bas «|i abaolute or gesenl pmpeity, inef bHng tiove^ 
though he never had the adiud poflsettioiu for prif^y, >n personal things, 
taws to it the jDoneasMfii to enable him to teng trover <r t>ei^«8B*«gainik 
a «lMBg«r wbo^akes it away : but, he most faure a wi^ of poutB&ian. Ye^ 

if a persen having a spceial property as a bailee, sells and delivers the g^ooda 
to another as hii own, honajidty and without notice; the general owner can- 
not bring trover, or any other action^ against the vendee ; for, by the sale, 
his property is altered. So, possession, with an assertion of title, or even 

'^possession alone, gives such a property, as will enable a man to bring* this 

^isti^n against a torimg doert for possession is prima fiuie evidence of pro* 
perty, safKcient to pot the defendant upon proof of property. So, the find- 
er of a things maiy bring trover against a stranger, who converts it- If the 
goods come to the defendant by delivery or finding, the plaintiff' must de- 
mand them; and refusal is evidence of- a conversion. But, it is not evidence 
of a conversion, where it is obviou^that the defendant has made no conver- 

, ilon; as if he hatf ^t dow^ trees, and left them lying there ; nor in the ca^ 
4f a eatrier, &c. w)kete llie goods'* were lost through neg^gence, or were 
Iftoleii) but action on the cAe is the remedy: but, if it does not appear UmH 

* ttiey-^reie lost^ or if the carrier had thefti, when he denied to deliver thei% 
it ia a conversion. Bull, 44. Nor where that cani^er has a lien on the goods 
fhr.a debt due him, which is not paid, nor tendered } but trover will lie, if 
tile canrier br^ka ope^ tb« box oontainiag the gooda^ or selis,lhem, or has 
them in possesion when the demand ia madew ' Not cadf cJaitting tbe pio» 
perty as omi^s own, bn^ asserting the i^;fat of 0ntother over i^ i% upon demand 
and refusal, evidence of a conyenion. Denial to one .who has aright to 
^mand goodsb is an aetual eonnertton^ and not merely evidence of it) for the 
^aaJinnfag upon one's self the property ui; and right of dispo^g oit, another** 
f^qds, is a oonversion.' So, where one intmated with the goods of another, 
puta them into the lianda of athm} person, wkhout oiders, i^Ts a cenversioli. 
Ilaking il^ pf a thing Iquiid* or deMferedf is a converaitn:^ s» ia a «ususe of 
tt: So, taking and tarrying away ia acooversto, Trtthpftf rinnnnj tiiriafiiiil 
'2 Saund. Rep. 71. n. 1. Wilbraham V8, fli6w. 3 T. Bep. 357. 6 Mod. 3^, 
is Bac. Abr. 679. . 

' Hi 4 9iiT. SSlg, Lord Ifansfteld laya h down, that Courts are disposed to 
Sena.: 1. Where tha^ is an express contract. 2. Where it is hn- 
^om the uaagte of trnde. d. WHbre it may Be implied from the manner 
of dealing betw^n tlie parties, in the particular case. 4. WhtfJ« the factor- 
H; ftr the batal^ of Ma geii^ aocounta.* 


• I 





WukM et aJ. «. IMkcr el aL 

1 ' 


RUPTS9 V9. Barker *8c Xmslet. 

Ko deb V but mm4 « m due and cwing at the Ume of the hankn^pteyt can be 
proved uadertbe commiiaoii 1 and, consequently, aii endorser or acceptor 
of a bin of exdMBge, diiawn by ihe bankrupt^ who ha9 not Jftod it beftee 
tlw bMikni]itcf I oaraiot prove ^e debt 

The Mpeptor or eidfl^m of a bin of e«lM^(er «^ P«PFV t^ 
banknpti^ of tlie drawer^ may ofiiet the auiie affia* the banfcmpi^ 
aaatgneea; bu^ he abft ahow the debt to be a sobfliatinf one in hiin^ lit 
the time ^e action' was brought \ for this is a case oUfmUutd creditf given 
befero the bankniptcy, although the money was not paid until after. 

Setoff. Wbero it will be iAowed» in nliAion to dums upon the baaikrap^ 
ealBte»afisin||^ftom'1iiiHBoliQBsnitMnpletad> belbee the bankniptcy* 

Whatever <m might have eiiated vspoa goo4» wmotf , m the haada of % cq»> . 
^gnee> shipped to him iipoA a paitioulir aflc«mt» and under «n agpB||» 
ment^ which he has not kept ; when these goods have been solo^ the hen 
is at an end ; and the proceeds qf the goods will become the subject of 

mutual accounts, and of set-off' between the parties. 


iVCTION of indebitatus oMumpM^ bt money had and re- 
eeived to uft« of bankrupts, and goods sold and delivered by 
tlienii Ptea, non afiumfisity and notice to offset. The case 
tras— Anthony 8c Pleasants, having shipped a cargo of tobacco . 
and flour to John Y^arm^, i^ Bristol, and intending U>. sl^ip more| ' 
drew bills, as they were pennitt^ to do, on Waring, for two- 
thirds the .coat of those cargoes; which they got the defendants 
ln.Philadel{^a, to endorse, and negotiate for them on the usual 
comottaiion. One of the bills having returned protested ; andj 
tlie defendants entertaining ^)prehenfions for the &te of the 
others; they requested Anthony to come on from Richi^ondyin 
Virginia, where his house was Settled,' to Philadelphia* on 
this business. Ha did so ; and then the defendants insisted, thai 

• 1 

i < 



' ' OCtOBfiR T£RM, IS04. 



Maffai et aL w. Barker ct tL \ 

itartlioiiy slMMitd ^T^ tlicni Bectiiiiyy to IndeniDi^ tltem Si|jitRtt 
Hi^ oiADnenoiitt on the bills ArKm « Waili^^. TMb, Aii- 
lilMiy 4«dv6d 1m eeidd not do ; «nd> if iir Irene iasieted v^n^ 
Mb iKrase wottM be ebllfed Id stop. The ^efl^aAuits. objected 
to this stept lest it eheuid deelde the fiite of Ike hiH^ net then 
|ii«tested;^tnd'iroa}d. In ether reepects, be injIiiiKMiB'iiet otil|r 
to Aflihdfi^ It Fleaseits, bat to liie defendsnls. ' To prevent 
this m^urey and* et the same lime, to secure the^deiiyidaMi; 
ti^ff on the 1st ef April, laos, cooitoilled .to ipriting, bvtit 
1H» not signed) the fcMo iyI ng preposltioB, inwi^s ttt nee^^. 
ttMr tlltey woeid aecqit a bW^ dtKWJn by Anthohy ^ mmmmfih 
M iMm, Ibr 3600 delim, in fltTonf of H, fMftiky en ceiwMftrin» 
Aat Anthony tc PteManta would ship theaa forty or ffty hogtf* 
heads of tdmcco; and 'thi^ Anlhcmy h PkeoMts aheeld ship 
Utiem other cargoes, whitrh Ihey woM aeitt to tibe beat edvev-' 
tage, tfid wMid eocept dk^ bilte, fortheemeiifittoltodMnph, 
mk aiMee received bf Aftahony fc Pli seams, that tdie eargMk 
had coihe to hand. AtittMy; (irhoj having executed a release 
ef any benefit by ill Inereeac^ of the Mids, in consequenee ei 
flHa suit, wae adositted as a witnes6,)'depoaed ; that a parel 
egffesment waa mule, that Anthony & Pleasants might daan^ 
en Hie defendants, en ft > wtodiafc them bMaef hifogrof thjoeof^' 
goes to be shipped them ; and that no part of the pv^ceeda 
were to be appro|NMted to t&e diacKarge ef the EuJ^pean UHe, 
drawn on Waring. " At the time thU negotiatkm waa going on, 
ami, to aee«M ther defimdanto against their endoreeoHtttoof the 
Ws on Waring) Anthoi^r, for Us henee, aasigaNid wver to the 
AsfendMits, the cargoes shipped to Waring, for eeeAring the 
defidadnnto aeendaivem; and the bahme to be Ar the benefit ^f 
Anthony fcr l»aaaanto > 

AMieny k P|e«aa«ta,aiDCordin(^, shipped to the defendants 
dMhreflt cargoes ef tobacco ; but, haying daawn upon them be- 
fore they c^aie to hand, theae bltts were preleot^d. The car- 
goes itf tobaceo shtppW to the dafondan^Sj weM wM prior to 
flm 9Wi lui^t iao3. 


U9 PE^SytVAlHAi 

MMks «t all «t« Barker ct at. 

' '■ ' ■ I ' ■ ' ■■ ' i ■ ■ , ■ 

takMi oat agaittii AsMioaiF h PleMantfly ond w i^ftignniBPtr 
made to the piJwotiAw - ; - *.* 

The ,biUa 4l»V9 qd WariQ^9Nva.4itf prqt(stM» ^4^V* ^ 
bankniptcx of Aathony.flc PlesMAU. 

The 4e£eDxfaN|^ paid t^aa p w i fB et»d .biOa t^Sfgr ^ baali* 
loptcy;. The cMffg9€» in Englttid) wcre.tpld jbr m> flMwh tep.' 
than waa calcttialad upon, as toiiMluce WariDg to protest ao 
maay ot the hyia.drawa sUpoD hi«b as M #bUge the de£^aft|» 
to talie them upt to a la^gtr .aaoOM^ t|taB the pfoceeda of tha^ 
tobifioo -skifpttd to |h«n> anil^whioh th«gr did pajr* after tht 
baBhn»|itgy of AnthjaHy fie Pleaaa^ti, lyit Mbra the tarafiiig ot 

It was oootepdtd liy.the plp^tifls' conaael; that^ from tfao^ 
evideoce io thacaiiae» it ipjunrnrt, thaa the ^tobacco shaped Jtflf 
thji j i afal i MiHi waa»app«QpHated to -a partiQMlar i^npoftas «Qd> 
tka^ the defendants bad bound «bem«slvas not to fl^ke «ae of 
ill to di8«;bi^e any piio^claia0 ni»iw» AiithfK^ fi( {^eaaaoiii 
'fcr wliich they were aeeurad* by t)|» asslgpnaonti . Ttet ftm. 
amowtied to a wMv^er of th^ir lien on those casgoes^ sady con* 
so^nanily, ot thw right to ofibet thoae debta acainst tbia d«^ 
moAd for the ^^ceeds of the cai^|oea» They cited I Vera^ 
\8^^ 3 Black. R«p, 1269. 6.T. Rap. 2I«. 
, On the othek> side it was kisMitedi. that the eonlract was that 
which was reduced to writing; aaid ciroumstaoces w^a lelM 
i^ion to di^oradit Anthony. That^ at any rate^ yMBS .was «a 
evidaoce agafnat the dofiaadsAts of a waiver of tM» V9«hl«» 
seto& Ttks^ the AAod ptontfW la £nglia»df for the. aasufitp 
of vthe .defaQdsiy«, having Sailed^ they wens «<it honod br ^^bttf 
promisei^o Anthony fie Pleasants, however aiMOg it might be 
against them. Caaaa cited/ 1 Term Rep« 36«/ 1 Ease's Rep. 
98. sr5« Cowp. Rc^ 1S5. 3 East, 335. 

The plainitffii' cowaeV !i^n Mar conQliMtingt started tlm 
point: Mia^tbe 4aft^irt»il» nat hariqg pild the protested bUlii 
on which they w^re eodor^srs, and which focoaed ilia Ioqss 41 

4>CTDB8R TntM; it04. . 161 

tifiiiftra«frfr lilM»{i«gFm€«tih. iirUHl4M» iteMlMmg 

l8t. Tbaawmltm^ «pt • flttM^fUbfl <Mft»ap-% WUiiaa on a 
gneral ttocMtat,^ • AMi^ U pi^ at a]ka«e«t%.a^>i*e .iia^^ 

^M^ That a Mtt Aapcadiat ^upan. c 9oMi|gm^y» which 4aaa^ 
nan bafipen wMil aAar tlM^baflbBafitBf « caaMi kmtM off. 

tiL'SiiaaMr^aMatfi te agMf; nMoh aaight oh bc^ pia«ad< 
attdar tiiA caittmMaian. 

baa Mt^iMtf tba hil balpa 41m baaiM|M^| ia «air liabU 
a ianfirtgaaay t. ba aaald. Hit» bnantb aaai^ praae^wwler 
wiamiwHaai aa4 iianaa<irtMilf i<aaii aat^. Ha «i|«d 

Cv»aaGMk-Ii4MN«MiiW.M*|30a. i'A€k:.^lt. aT^ltfi|i»AM. 

1^ Cawrt bifcMtta*JMai>P>aai» iin canrbatan iTpatni^j that 
tMl^waa i^ttiaa a »e» yfct^tHbMh tha rwMiawlyNi bad apqMi 


aad ai i ^ aa d -ap die paia«Mla piikrtii'i had wvar maaicil-; 4tet 
tda waa m int^lmik^w Emi itm pamt kw rngti mp wi mi , tb0 
oauttael far the daftadaai-i>ibid»a<tt Ubartj 46 diaoaaa iu 

Raii*a aad l^awil, Ibr i ha d aha dam , inaktad that the caedit 
b a aiat; baaa yyaa pa iar t*-Ae baakrupiof » k oaaaa wllbiii ^ 
4BA aaalian of the Baaikni|it Imnti reapectfo^ offaata: -aad thejr 
^HM^So. Bank, lirfnv^ f7a..$k>«|>« R^. 3SU 4 T^ ilai^«i»l(. 
taai%j«i7.«7T>«apkSM.€4.Biai^. L. 57$. . 
t tfpaii»aba telfiabili ITaaAiJMrMp, i^. daliiarad Himimimm^ 
dbaftaaaii -Vbe|iaa^Bit]aatiMtw4if>i«i»bf ^vsitiaff^ 
eitoaifba^idiradiiariar the caanniiaiioiiy jiwt<ie» .laaiikt ■r.ttlf 
Baala^^Ht. Thetway>fnliaam>apinri eg daTeraot 
#r OiadaiVy vaqr dlffeaaatiy axnr<l<a4.- Tbecasap <4^d 
t» rt a ii > wh a t d ibai ^ ^aaaat^ prarfad<iadar4he# ii | |iM iiiii i ( aiij ga 
a q pba it fca w aad i oC<fcaH<i te »^hiabid<»|aaii|t>»ilp iMPiijmaia 




' ]lMactd.«i.Bafkeretal 

<*ff Hm ^ die teffJtn^^^r; CgaMqiMiMly, the 
acceptor, of « MV^R^M has ttot paid befafetii e iMflkrapftcy, 

dme. Bui tlM^imtCioii elf olbal depends ^q^ Hie oMiittiiAidii 
of tlie'^iimd^ *^iitmtumi cr e rf f tf^ ** in the iictiHi wime they are 
fbiwd. I was aft Avit etnicfc wkh Ihe pfeprletjr of gMftg theia 
a fimited cetta trac tia»» eatendhy them ae faithjer than to dchte 
pifahle 4t a fttteire daf) i» ae «a apalaBttAe^ aa BOitfy ^ poaaHoi 
the eaae of aiiuf to that vt Mm ^ pi iwe a bhi uader Uiecon^ 
jifcilwn ; bttty after i^ ei e o t teg %hm, ly thaa aatte>»teg <fte eea^> 
eiMolloiif a nail who had gtren erptty wy endovaenieAta or* 
qjierwise, ia mafldenie #f the eeeaMy* he peaaaaaed. In tetaiiH 
iag what he ni^owm to thatamMBt) I ahouldtahd^oaahiBr 
a pteafc ea whkfli he iaii lafteaiMl4iaeave himaeir; I-thaiighi K 
aha<ildbemetettalytoli^t|a5lt>Baalaaef theLigidaiuwit 
hy eaaaadfaig it to all caaea of credfc, ghretf befcre the b«ak^ 
niptcf) thoagh aot to be toTaahtgffd at a paitkaUariky. la^tta 
otoe> the defcadanta, by u iia tahig the bDIa of Anthony k Plea»* 
aaMa^'hi <Mder to fjb^e theao eiedlt, dU atoatoertaUy givtfi 
credlCto Aofthony k, Tipiduuu; andythbrefbrefthe wopda'^aaii^* 
tual erediSf'* are bread eooiii^ to cooftpiehead thia caaa^ if 
Aea* yaoMthig ia not narrowed by^ iditotamhai. This aeotiatt of 
our fakw ia copied almost rerbatkn Irom the Mtiah statato. 

The argameat urged by the the pkiBtiff*s coanad ; tintt if the 
section ki qnestion be conatraed to extend to this: caaoi the 
eatoto of the bankrupt might he twice charged. Tin. by U» 'de« 
fandMt a»i by tiie hoMeis li wttheat fMiMltt^i . hacaase, 
dMflyi batee the aAm ia diawadi the difcndam muarehow the 
debt to yk aah da it u In htan ahme. This ia Ha dialifciiii hi 
cenunoB caaea ef afbet, that the debt attompted to he aet ol^ 
maat be a gead^-aaii evbaisting one, at the <hne the rntHm ia 
brought. The Ba^hropt Law permits anoh an o(bet on acre- 
fk gifan belbre the bankruptcy, which, i>^oat tUa aectten,* 
would wm hlM been dlawed. -I c o a aid e i the case of Smitft 
and ctiMmtif.Hbdaan>^*TiMBB^^Jll,aa sharers diatm- 





f 1804. lU 

i%WI— ■•l^— ■»■* ■■ m %\M\ I ■III I III ■ 

ten tilt iMMAtf-teMM, w thk ^Me, tli^ IMi 

aitittt>.e»iedM|.«BAib beH^ tto Mili im% »t the 
tme of tl^ ><plwmi^y) in the h(|»ii ef llilrd pwaw^ Weare^ 
A^efofe, o£ epiqient Itefc the ihteiiiniifi pm Mt 4epflired eC 
t^e right of apMofffOn tawMHtat their wt tewiai; tidiiH tip the 
yiBs byiyiirihe hjuhryiiry o< Aathei^ fc,lie»eMit>. 

ir^^yGaJV)&raAr X. J^AiP.ii^^ the e«ie lit ^i^re, 
jIMlrdb It II piirfiimr h—winhili iff tfcii cettte, ivhsther 
kiMWMtoftbe mpfApirilbeiipheethe^rfeatiinti 
it vai^ o|^ tiieh •» ii p«ov«d b/ Antheaf; for except ae'te the 
timj^ ^t/n^hkh Anthony Ie, <|Minmii- wei» ta he er Mhertf 
te diiar« whioh ie ^aile weiitpnitinf teethe qvettM m thie 
cUMM^.the two tm^m^ Me mhtipiieilr the seme; the 4Ah 

llPMf «(N9iM not iHMpmte thecergwi to b(6 aeiitto them te>* 
vftrda the Ejirepeen WUnwaa onlyeeipressMif whet neceaeerily 
annulled firoai the written pi{»miae» to appvepriate t)ieai te an- 
^ji^ pmpoei^vis«to.thl» ta^uqp iip^ the hiHe* whioh Aotea^^ 
IbPleaaanu ehouid teiv» oa thiK de&aiants, tft^theaaMttat «f 
tiKiaa cargoes. 

Whfkt, theO) by thip coatraflt» were the defendania hcHMd to 
do ? To accept Anthony .fe Shapante' billty drawn upon them, 
either ifhen the biUa of lading lor the tobacco were aent en, on^ arrival of the caapoea. ' Jlut instead of thia» Ihao^ httta 
VM jmtMtn4^What then I Th^li^Mera mightpniaMr 
anad the dfCindinti ai accnBtnak. iia^anaaniMnca •eff.*t^&a 
iinna enfnp^iMPt tn aacept* But they paoteeud.ihnMla and 
ail^^ th«D. , Simppae Anthony k Pleaaaala hpA aund li^ 
dn fe dda n ts for a tireach of theb contractf in paa$ae4l^ 
lMlla» having fiuida with which to take the^A ug^ . They 
haye reqoTcred damaipea, unless the defiance near eel^q^ to jna* 
tify their conduot».WQiMd hnne^rotec^ theaa* AndHnet cer* 
t^yi^if (M ioanftaaeKay 9f the fw# w\^mk <u ihii tuftnj- 





el«L f*. B«rkep«t A 


jtfcafli Bec>— r Oat aa rifam wi i wa»*tii« ctaiidBiaitiw ftr 

' out theithak of Anthany k li e M > nte| y«t ^ iMeiidMit* weiie 
tiiereby raleaMd* frcrfn tlMk ptomwe. V^t wiMt CftoM have » 
duoe4*tli« ditedni^to agwvto vtlki^rfBh dMirliMi, on fut«pe 
cargoes coMiog una tkair b«Mb| bvta^lief tkal t&e kidciifai- 
ty thay had laaatiMili tfgalBat thet^prifg " mgag aiaa^iita, icas sa£- 
ftHml? Titia, I tore ao da^bl» w^i aiie baiaf <rf ail the pattiwa 
ai Ae time, but they i>araiiiihamw<iliji Miiaeiihia. TlMvthHii 
waM'h9f9e baea the teetii luch as aatito, at the um% l^lnMii 

Bat thia i» U u iMm$m $ m m m m jf ^ i^s for the vftea of the tm^go^ 
aold hy «lie detedMrta. in a li an iai ao tln% tte defeftdania ai|^, 
tke baaknipto owe ua aMPa than yM daoMMi. Whatever ea»* 
atreofim may be gmn t» the coatractrH ^/M not be pg i ii a w d ai 
that the dafiuidanta, by t^peeuif <K>t to apprQ|Ki«te the ^vteeeda 
oi the tohacea to jthe EnflWi hllU, gare vp tfieir right to driril 
tem M^vf k PtaaaanUi what^iair atvpiA of money they migiift. 
be Qttmpdt^ ^l^iyt «a aaeaaat.of iSMarbilla. .liaMr iai|»poae 
Aathony it flaaaante wete platelifti in this eiMise^ and weredd* 
Amdaats in a cross action to recover the amount of those pffc^ 
tested hBla» and judgments should be rendered on both actions. 
|f the delmdants' judgment eiODaeded that ef Anthony & Pleas- 
ants, mttM not a Court of Chaneery enjohi Anthony Ic Pleas- 
ants imm proceeding on tbeirjudjpwaiwf i particularly if i%, were 
aMad Aafetfcey would aet^ ttttf ib se i^ iBy the d g lb adn ma* mo- 
nay^ hraMa-te aallii^*aiialr jadfww tot > ftareiyniey WMld; and 
if 80^ thw-whola ef miB eaaae has dwkMed ^emm Mlo a meth 
a£ foiwii-^is. whether the defendants shall be paid a 
ta wihEh they are clearly entitled, in the way of a set- 
Jil^ m a eress i^ctioo, or an application to a Court of Chancery. 
The piaiBfiih^ tounsel have clearfy^beaa mialed by applying 
the a» t»iaa of liea to thia case. When the^efendants, by thait 

1st of ApiHf'waiired' tHen* Ken on the tobacep. 



» 1 

OtfroHOt TERlk, MM. 





liariuetal. t». Itoriceretal.- 

' te comMention of a iecuvity lor tlMir engagements^ on-aeoiMit 
^ AeSngiUh bilk; tkef had mn&Hbtr secwritfy whicli tlM^ oemr 
waivedf aod tlMt waa, the yemoiial aaaponsibility of AotlKMiy & 
neaaanta. Had AatlMSf k Ptoasaflta, or the plainlilb, hrougit 
tM>?er and cqayewieii for the taMlcoy that b^g fat msold; 
«|hey m^lit ften have ar§«ed ^gaimt the dcfettifcnta* claim of 
iieii) that it i^aa waived. 

^ But the lieB was fone bf the aaie».a]id the whole becomea 
ao^.a qaeatioB of penoiud napamnlNlkf , that ia^ to ofiaet a dflht 
aitaiim^il to be pa i aa na ii y A tC) from Anthonyifc Pleasaata) to 
tiM ddfeodattt, which dAt never waafiren up, nartiiB. light m 
matt ofP cKpaamiy^or iaiplaeily waived. («} 

The jury were-^iit two.orthMia dap%«idy«Bbain§ 6aUad| 

^•i^Uan^.^mlmi^ji in«fuled» ihai whut eWbar of the baahnipte htd 
acknowledged befoea hfnkniptcj, might be given in i|iridence agaimt theif 

An acknowledgment by ^e bankrupt, that he was indebted to the peti- 
tioning creditor, if made bcfbre airing out the ctnmniarion, ia good evidence 
to •appert it % Bap. $9^. N« P* Oautu U%. A nam cannot be a witaeta t|» 
ptovem act of haalDnqrtm^ aaiMNiad'by hiaaelf I baft hii wApaw i ti^a 
IbinApcnoaafttbetimii^thathe w««iia«tof the way to|MMaatana|Nf^.or 
to MU^h bke fibcts aa are acta of baptpyptry, }» admiauble. 5 T. Rep. SIX 
Neither can a bankrupt be a witnea% to prove the petitioning creditor's debt, 
4)r any other fact to support the commiasion; though he has a certificate. 2 
H. Blacio. Rep. 379. After his certificate is aHowed, he may be a witness to 
any tbingrekting to the baakrupte^, except only to the act of baiftruptcy. 
1b.>tiote.* ^Iheaghheffdtaaani^d'tlMHge^iMl The baatoayt to an atoi» 
ifele wHiteai to eiplH^a dcahtiit ac^twhidh aay armay aakbeaa aci^ai 
h i a> k w ytc y i aawba^ipa eaMieitt telie^ gpaaa egnfitftf^ ai4. fcjdi^lf"t 
41§e, was ao or not 1 Esp. Bep. 287. W, 


■ • 


£ji ^arte Hunt. 


« • 

* Ex Part* Hvurr. 

A part^ to a cauiei depen$iing for trial, is privileged from amfKi dHtanf the 

continuance of the Court, at which the trial will take plao^. 
This privilege extends, not only to prevent his arrest, when attending the 

Court, and when conoing to, and returning from !t, but while he is at his 
-toflgings. * , . .. 

. • • • '■ 

Mr. iNOERSOLL itijiwiii on behatfjoC Tteatlif.lbMtyti 
be discharged from arnptt iiiKlcr a capiat md mi U /a^ im g ui^ littl 
ilMdd ngiimt iam^§emmMmmipnm» Cq«K«# PMuiyimmiat 
executed on bim winlvt he wflU ttltiniJBt'Hiii €eyrt «s e enter 
fnd witness. 

' TYit motioii wtn foonded on the mflMftTit*iif Bnmt; diel, in 
^ohsequence of a letter (h>ni his counsel, MV. Ingersoll, inform* 
jfig him that his suit agaieet Chfti*les Hurst would come on for 


trial this Court; he left Mtw York, bi^ place of reeidaice> oa 
the«94h of the mont^ Mached Pbitedeipliia an tfaa t tth^ asd put 
H^ at HaiKly's tavern, where he-wa* aipreiiid under tile execu** 
HoA. f hat iflap he arrived, aiitf hefbre the arrest, he was serr^ 
tilth a subpoena from this Couvt, tommanding his attendance as 
4 witness, in a cause depending to be tried this term, 

Mr. IngessoU supported the affidavit as lo the suit, fad Mr. 
Walla<^ aavto the subpoena; b^t noilliec wne fequirofMy the 
e^kheir aide t* oaake an affidav<t» eai it,wae adnrflind ear tiie ^9$kw 
sUe, that Me attenMace on hculi iMJCoame wae bmt^JkU. 

In iKi^port ef die .motk»D, Mr. IngersoR cited Barnes* Notes 
300. An attorney attending his business to execute a writ of 
inqitiiy, wiH be discharged from a ra. «a. 5 Bacon's Abr. last ed. 
631. A mhmber of Parliament, discharged from a ca. ia. 6 T. 
Bep. 6S4- A viember of the king's fimily, discharged from a re. , 
ea. S Bac Abr. last ed. 6 17. All pettenaare protected from ai^ 
T|NttBiH4|D fiewof the Court, or Iwar enough to diecnrb it. i' 


. * 


!■■ O^Mifcx— i»M» I II ■11 1 ! ■ • ■III ■ — I ■ ■ Mill urn m%tmtm0mmim0^mmmmmmmm 

Hy* Blackt. Rep. 630. Any peipoMi^iog %af iltc4iillit» «f«»* 
turning from Coort, mha-mmt^Stiipfe remtim ft lytMn i D ^w iMI 
ClMt^ wbkh eallk ftr tJbiM ii<ll»^Jce» are piMlegftd ftfom 
•r*aB^ and a aiRgle j«4g6 i|iy diMimrg^. 4 Btc* 98i. $ Bitf 
0tfS. *«Nn*e al«o eiiMl. 1 Tidd'a Bw i »ftM# %\% t% piortiM t» m miiti 
wu^ witnesses attending Court, going (a.or ret«muig fimqi il| 
pvivHeged. * . 

The party ea privit i^ e ilf d afii|iaid, may wffpkj to tlie C<mii 
wlRMe protoctikMi he lelts, or tlMt irosa* «Mah the p f O ttia ^af 
i^neh he was aM'eeied Hswed, whkherar first sIlKi to htiM^ 
ehatged. i'Stva. iM^« BPyer, 6§^^a. FmUege aliovef whofet 
the party is ait executor. 8 Dall. 47g. . J 

*]lairi0i» ls#rthe esvdkor^ againet- ^m ijieiiipi iiaaieaMis<i» gane^* 
«aMy; that Ae jHiiii iiigi i oal| ijliiwiai to the ytfty namiiig tn^ 
atieniingi &t letuniiiig fi^m ConiV; hot be waa not yaDtficlH# 
<han<at hoaMi and Barst must be eeaiaidBtrtl aahniig at home 
at his l<Ni|^nig% whdre he was arrested. /That tba eaaes cftai 
prove ^p flsora; and if a contrary Aloetrina wen adaittad* thi^ft 
wvery citiaen ht Plniadetphn^-fiwaithe tiina he waa served with 
a auhp«na, o^ ivto had a caa e e hi €ottrt» would, dH^iog the 
whole time, be pwifil o god ftwai arrest* 

He relied upon 1 Dall. Rep. ^56, where it was ruled, at NIfti 
JPriuSy by the Chief Justice, that the privilege d}d not proteet 
against a ea. aa, though it did against mesne process. 

The arrest must not be near the Court, or at Court. 3 Brown- 
low, 15. To an action of eaei^e from ca, sa^ the defendant 
plead a cuatoad of London to diaaharge suitors, that the party 
wasaraestod gmng to Court, and aite discharged l>y the Court, 
not good ondematid, for the reason just mentioned, 2 Ch. 
Cases, 69. 

Protection does not extend against arrests in execution. Tfao. 
Ray. 100. 2 hd, Raym. 1534. Wood's Inst. 478. 571, Brook'a 
Abr. 159. Same point* i'Com. Dig. 89. If takten iti execu- 
tion, he AaU not be diacliarged, for then the creditors would be 
without oemedy. If the Conrtii of Pennsylfama should acttwre 


CM ' .'FEJtnmtlXASAAf 

IS the doeiion gsiBrtn as n^cntBd io 1 Ddk the Sheriff mI|^ 
if euod- fcv tte eic«|i» itt the ^M» Cgmt y^ made lUbler 

By the Cemrt. It is ckWi §«m tte ^flies cited, that t^e «^ 
lii^aat wis pmileged £»!» this jvrest, and that it is our.'dolir 
to dischar;^ faiaay that tka iiioceedings of this Court laay net 
he impeded, or jvstice defeateci. K the privilege in such a-case 
does not extend to the party at his lodgings, as wdl as coming; 
to and rotumin^ from Coim^ the yi o t e cti on whkh the law af- 
fcrdsiiAB,wei|ldbe«iiierenBOcfcerf. Utakidgiagaafaaa^nHwh 
f sanctuary for him as the C««rt Hmise^ bnt wh«a his buaindis 
is done, he innst retui% so 8a«ot to^ fittly oCa flRatttial difr- 

• .* 

As toihe d a nia i j bo^ j iha rii; das is mtmtif immi^mgf. - Sm^ 
though the Supreme Cottit ahmrtd^ 4i9m tern us upon ti» 
yamt, and adheiie to the opinion of tho Chief Jhis6ap»«t Mm 
M^HuB^ yal» after Bnmtipm discharged h^Tu Coayt» haf iag u— 
potent jnrisdiction of the case, it woukl iMsahmgt the sherift 
tiiough im> ahooM decide. Ineofffecilf. it wott)d be aastrange 
situation te ptoce ttm Sheiiff in, who, if he raised tsi obey ewr 
orders would be subject to <he eemo^ilted for a oomsmpt, and - 
if he ohefed, shcMiM sub|ect himeetf te an aetioQ for an escape. 

S ^ 

OCVOBSR l«Hf , llM. 



Leatfee of Hunt ««. Kcr* 

' / 


* ' Lbmks of Mukst w*. Kea. 


X&fectment— After the defendant in ejectment has appeared, and entered 

into ^e eommoh rule, he may take a rale on the plaintiff for trial, or nm 

'"pffi^f aKho!^ the declaration haa not been chanf^ io as to make it 

* ǤliMtthe ftal defendant <t1ib la &e n^lect ef the plamtiff, and he 


of it; 

A HIS «|aBtiwMt, aflttd ntaf iiUw»b, were returned to April 
. Wrm 1803^ old were tlwn pat to nsve^the detediats agMcanf 
to eftterimirtte eoi&inaii -rale. The euiti^ howWver, wem mat 
■et<(ewii«ii tbe doeke^-fsr tiiillit tlie laettem^or at«Ui»«ftd 
l>»chenfe jft the dedMntioiis* werp not ntAde, so ae^le nnk^ 
Iheii tgebef tke real: defendants, until a £nr <i«|>a «f% u a d e i • 
mle laaide tliia lerai. "" 

' lAgeraell now moved lor an order, tiiat theae auka abonld be 
tried at nest team, or that nan /kraa«ahoifld be eaiterod, aad no- - 
tke given at bar; and he relied on the lawa of<thia State; 
that if the plaintiff, after the cauae ia at iaaue, dp aet trjr, he 
shall be nim firostdj if notice in Qourt waa g^iren at ti^ pieoedp 
ing term. Read's Dig. 66. He etated, that though the new 4** 
clarationa were not filed until thia term, yet it waf me9C form,, 
and cited the case of Le sa e e of Cheyiy v9. Aikens; where it was 
decided in the Supwmi Coort of Errors aad Appeals^ that if 
Ae parties g0 on upon the old declaration, to verdict and 
judgm^it, k4||K>t error; he alaoxit^ 3 DaU. 156. 

Mr. ^vf insisted, that the cauaas were not at issuer untU 
after the new declarations were filed; which being after ^s term 
coaamenced, they could not have been tried. 

Wa9hington^ /., observed to Mr. Levy, that he had no doubt, 
fa>m the beginning, that the causes were to be considered as 
beiog at issue, before the new declaiyitioiis were fil^ d ; that is, 
at the time the pleas were put in ; IumI that the atteiing the 


* s 






Immom of Hiirit w. 'Ker. 



40i3|AMtlcNiSt to imrodwee the name of tbe real defendant, was 
m nlefe mattes; of fom. ikit tin diAciiltf with him was, who^ 
tbnr tiie defendant might not evadfe the effect of the order^ by 
agreeing tp try ; and yei- most enialD^y the causea t:oiild mt 
be tried at this term^ as no tenire had, or coi^d issue. 

Mr. Rawle^ in answer to this difficulty — By the practice of^ 

this State, no person but the plaintiff can. set down the case bff 

trial, unless he is con»pi41cd hf a pfeviabrule^ sothat heplaads 

. his Q^Bi oegUgenee^ to*preveqt the i^ila bom Wng 

WAUHMJ^GTOJfj J. I an satMW ivlft tiifai w^er: I did 
Wi toow Um^ aoch waa the practice here. I' was ntsled hj tlia 
Virginia ymafism^ wlyupe il {s the oluk's fhilf $mj^ dayn the 
eausea jpn the triei docltetf as sobo ja» thcy^are at mum* ^BmU 
Mly thcfc lUauitiff ona da thfs uDleas haHeAed bj^a pe^wiio f«lc^ 
ire ovfhft enralgr to graat it. 

Judge Peters coBcarred. ^ 

A Rule grimed. 

\ < 

ocTDiOHi nsmt^ tio4. iti 

Lettee of Ham* ft. Biiiebui et •!. 

Kjedtment.— A survey made and returned, and having every appearance of 
regvbvity, nrast be taken is i^egnhr, imtil the contruy- is diown. 

^bfter a sunrey km been one* t«giilafly n^ «9ier a wttnnt, under the 
4iMliR0» of t^e «r«ni«tee» ahlMQch aot m 

. tfjefciyutj Ihr wwEfaHt is Jundua qfiebg^ aadeaoMt aftMWvda bett- 

^ vired, and a survey iqade under it, 

A right by settlement and improvevient, if a syrvey oT the bgvl included in 
it shall be made, under a warranty by the owner of the settlement and 
lmpn^emM\ iMf^ mtsgk^ in the Mglier title. But, if. the surveyor, 
^MRRut WelflHNifM^e oPVte WMMHt0fey flUnDes ffwli Qto OT the VMmi^ 

I ilRAi8iik»y»B^ n»a litto in thewiwlnfiii » iwldfcg 
Janim inkier, miiid 4l|iiy tfa« tUt of tlw flftiBl^ 
tfc»t to wfiiarty finlliBg fi>rt>>rtMai>arhonBriMrieByiwM 

Ott Alt S7th Mf 1774^ the ■pMntiff ojb>>iD»i a wttnUt far 
three Httodral «cn» ef iaad^ boi^Mtef sMiiiiqpi W. IdL, T. M«9 
kc. Hickory ridge ;.wnh by tko iiok of a moiirtMny toeJiniteg 
a ran thai iiaha d Ahe flMMintafe'a fatfl; east by S. MatfockVi 
wdf^vf^ and west by'Tacant lands. On the 30ih Aufust IfBZ^ 
Wa. M'Ckyt thp wunwyor, MiMMd a aiifvay.of thia wanmit 
far thr«e himAiwl aadtiMlf mma; %iiiil'ti«aier-|aiM W. ik» 
aar S^Matfa^ by tiro hom>wi| |Hi i inij thsB^ it vmUaeviaiv 
hjr the plat aaaeaed (o th* raparC^ thai it a»»<nqa<ad on tha 
caat by his knii He iinsai, in his tatwhi that the auirfy waa 
m^ on tha4i^h Nttsauber I7r4» ISk^^ fkiaikS raalBd bia 
tMa aad right to riooaar aaooliiaf la thahrara al thi^uia$. 
am hia ta a r i a at and anrvey , astunnl iaio iha aBae. . 

didaiidanty F^amnglon, seta up alilfa aadar JhyaM Fat* 
%iiofaie I775> aattioA and josprofaa a faiAaf Iha thraa 

w ^ 

193 .^BMlfB^LVJaOA, ' 

Leatee of Rum w. Bufohan et «!• 


Iraiidnd «id tlurtf aeiw; wmI on the flflh immnf 1773» obtiiii 
cd ft wftrrant for one JkumImmI and i% acMS) to include liis u 
pfoveaieiit ftdjoining the land off t*. M., ind to include the 
ling hic)ioiy ground. This werrant wfts» on the iMi Jmig 
1774, suireyed by Wm/M'Cliy, to the fNKithward of Uie lend 
in possesaion of Penrnogton, and the surrey was retumedinl^ 
the office in I78p. Upon the return of the plaintiff's m^ittf^ 
Potter entered* a caveat 4igianst a /toi#n/> issuing to the pUdor' 
tiff; he claiBung gae hundrod and fifty acres of the laodft.hy a 
prior warrant, founded. on settlement and improTement^ The 
Board of Property, reciting the mrrtj made for Potter, aa4 
that U afifieared to ihemythsX a survey had, been made for Har- 
cis, on the 10th November 17*74; and^thnt it wee dapbtfiil^ 
whether Potter^s improvemeols had been ineWM in hia aur- 
Tey ; diN«ted James HansS| another eurveyor, %» ley d a wn ike 
two surveys, that the board might be enabled to decide thia 
point. A survi^ was aocordingly mede in IMOtteyiag den^ 
these two surveys, and the adjpiahig tteeis-iif. Hmd, by which 
Potter's improvemems are placed put of the.bouii^Uwiea^^ hie 
land; but by M'Claf's sttfvey, the lines would.; inf:ltidethans. 
Nothing fuitfaev was ev«r ddne in the caareat. Potter dying 
some years aftenit waa entfiod ; no steps ipere taken to carry 
it on. BurshSA, the other deimdant, lined within th¥ lines of 
the plaintiff's' survey, btft out of the lines rhintri hy the dor 

The couns^ .for t^ deimdeMs, Messn. IngemoH and Jkm^ 
ean, contended V i. Than the survey made by M.'Cta.y in 1774| 
el Potter^ wan«nt,ipras not coafiKa>mble to his warrant, because 
it did not tedmie his imp|K>vem|m% and the hickory sai^g' 
ground ; nnd was ft fraudulent focfttinn of his warrafityto fovour-' 
the phdMiff, lue biiother«i4aw and fiisnd: To.|inve thai hili^ 
teprovemeiia were not iflfcl9ded» thoy talied upon the diagsam 
made by James H«ff^ In I7i3, which leaves them outi and 
upoft the depottUons of three or four witnssses, who speak of 
Ms impravwMBis in 1774, and siy,-that wh«i JftmmHmiia 

OCI^m TBRMi \8ci4. 



ft m ' 



of Harris «v. Bareban et al. 

VMriB Jkie «ttnn^ i» iipSy Uiey mtm Mb out* They tlfefefi)t)i| 
JMBtt» (kit- Bolter li«i« ffijlM^o MiMprbU wtm^ oyer «g9J(| 
i»"tfV^ Oft tke land in tinoMiim, vl«ch ke did } tad at any ni««» 
Mi'.imBDt wtiltad bfan Oi tlie UM kk qtKogionf aa* agaioai 
Ifen pflainttlr. 

V Bait they priboipally rAefif fcr hfih defendaatii th^ the 
llamtiff''^ title wUa defective ; b^aiiae hie tiarrant cdled fbv land 
aory ^SSet^xAfrom thai iDdiapute^ apd that no actual survey 
of the land' in ilaqmte hod t%ken i^oie ; hot thkt it waa nad# 
iritehout |$ekig opQQ the gnmnd, runningthe Ibies, and blazing 
•od movkijit tho u^eiK af reesfbly to tlte iaatructk^na ol the 
Svveyor Generai fia Us depvtiea. They a^ktod^ that if tbt 
WatWt * ho a f ww i ii it gisreo a't%bt before aupv«y» tp the traict 
m d Wf ik ad i 'Ond that thua eonreyor toight^ notwSthataodiiig, 
vaoiiavo tho odmrant, and ottfrey it ejaefFhere, if no intemediaila' 
mod lo be allecaed thereby ; aad that eoen iii.thia lat- 
on'oeiiiai aofoey ws^ not noeeasary, proTided the cir* 
ottBoaftaaeo^f iii boiog' aol^ off ^le ground, aad Uiat it waa 
aaHiovady «aa dj ool o o ad to«the ofioer to whom tlie surrey ia 
aXmiiiMid, iHod ikat k |s then accepted. But in thia case, no 
aioh ^cloaure t pye or ed to hoyie been made, and the caveat 
fvavomad the acee|Nooee. Aa to tho hc% that the aonrey waa 
oet QCtuoHy made; thfy relied upoa«iepoaitiooa, prbring that 
Iho avitffieaaea were wkh imAon llarmy when he made the sur'-'' 
^kl^AnSy and Ikft thoy fiw oetther Uasea nor marks^ ex* 
ee^ wkeae they came to the Hnes of old surveys. That the 
Hll^aMiiMd by M'Cloy^atales k to ai}cdiiilu Matleck; where-' 
dhil iraa woi»fliw<l|ieochoairom itf amiatike oo otherwiso 
I0«he MCHttflilo^ for, thoe by euppoabigk to be a chaml^r 8ur» 
lofv m t Amm W^^ M'Oliy, Hi his dop o ri U ooi taken. io thia 
4Meo» jbnponaftt aa hotaew the tuslt ac^hct doee aot tt^e thul 
«ki^aMooy%>Mi« «lBtiiol|r aaiMo^ The oaoe .oT the i^^l^e of 
llftwwoti^yiOoeT^^deeided %^ lodge 8M|k, mi the Cirooit, aiaa 
rflodi: ^liainili oaaoof^ reaiiaved enemm, uoleat4m aotual 
oBWu y <uo|i»hp ii»4bo tOaiotiff iloiaikio4Wi4y *» oMdd «M ^ 





Lessee of Hidris tA. Burcban et d. 

tover fn ejectment. 'Hiat where there wer^^niirf waMntv f«t 
Into the hands of the 8iirvey<»ry if he mnii the outer lines of HNi 
whole, he mKy cut it hp hi the interior as he ^hraMn. * TiMi 
where the warrant is special^ the surrey of the^ same land neel 
not be made on the ground. 

On the other hand, if was contended, that it suftciently ap- 
pears to the jury, that thie surrey was actually made on tiie 
ground, although the presumption* being in farouV of the re- 
turnf fsridence to impeach it should be produced. The cifcunr* 
stances r^ed on are : the carett in I7S9,' in wUch ^eitter do6S 
not ^ate this as a ground of objection f the declaration of ^ 
Board qf Property^ twenty years ago, %nd only tm fAer tll% 
surrey was made, that it appeared to them, that'tlke sufrvy h«i _ 
been made on the 10th Noremfaer 17T4 ; thrft if, fn fkct, '41 
were nof made, it was wonderful that the land liai not *been • 
dnce appropriated by others. Strange, that a man in his chaaa^ 
ber, could plot an irregular figure lifke the present; Ml i "Pliiu »^ 
1y that he should Is^y down strtd^t'Hiies; tinct ho could in- 
clude a spring or run, called for in the wiirafit ; tlmt a^* tO'M j. 
calling for Matlock's land, it' does not cettaiiAy feHo^, upmi 
looking at the plat, that he intended to Bay,Hhat Matloek ai- 
joined it ^ and if he did, ft fhust have been a mistake, #Dm his 
not knowing Matlock's 'lines. They insisted, that ef«n if the 
jury should be satisfied that t£e vurrey was not' aflhially made 
on the ground, yet it stood accet)ted,'n6twithtta»ding€ie 

WASHIJfGTOSr^ J. charged the jury; and after makhig^ 
aforegoing summary of the case, the arguments df eounsd, vaA- 
the eridence, i^oceeded : The questions which i shidllirBt con- 
sider are, has James I^ter a title to the land in jiilMBes^n, #f 

' both the defenlaiits, or c^dier ; and sneondly, hks lite plaanUV 
8 title? As to the land possessed-by Burchan, irlradnillted» 
that Potter's wafrant for <^e hundred and fifty eeies, or hie SMi^ 
vey. in iTSa, would not include it ; so that if tHe ^ttStoM hai% 

« title, he muac sueceed agalMl Burchan, whaterorMy^ Pimr^ 

t)€lXmR term; ISb4. IM 

Letsee of Hsffib'ffi. BttteW et jaU 

■ ^■. .I Tiy»«^ — ^ I^i ■ ■ r Bill ■ II ,£ ^> . ^ %ilWiB»ai^ 

iMe, in ra«|^e0nK4e MM hdd by PMAigtdku Ai^lotMs^it i^-^ 
pnm ikmx aMinrey wm nmde of P4l«er*8 iMTnoit) Kf MXtey^ w 
ham 1^4, mhI tbat^w itir««f ww retvraed into tHe office !ir 
mS; and ^iteefere havfngp ttk tlie afipearMMMtyf rtgiilafity, it 
fliUBt to taken fiHmafaeit to berregiilnr^ «iriot» the co^tMrjr ap^ 
lieaft. To protN^ it irregular, and therefore not biiidlfef od Pottery* 
tile tesHipD&y of three or ^ur irteeMes is relied eo ; who stMe^ 
Ifcey attended J. Harria's atmny-ht IfBB^ and that Potter's im-^ 

. iN^ement was not eooaprehended im4k» avrvef . Bttt it is wor* 
Hrp^of mauA^ iltm thoae iritneMis ib sM apeak e^ M'Claf'i 
aonrey iB'lf74, hot vpfef -lo theliAeeas ntn hy Harfis m 1783 ; 
«lid lir«€«nparing M i i riia 's aiMPV«^ with M^&nf^ whkfaf it pre« 
jMms. 9$ IMow, er ougbi toi'iuiTe Mowed $ it appeava that if oIn^ 
of the iiaea of Harria'a avnrejrbad^koeo eauoded as te as 
IfCIaj's sw, the improfOMlt, as kid dovMi in Hasris's dia- 
Krarn, wotM^have been* kielud^d. Hfidast tliis eHdeaee, ia 
gy pa as i t he taat&naovjr of WiMtei WCkkf hteaeif^ who stttesj 
dM 9att«rklinMBif >polito^ om the http r o y etiM Pt and hickorf 
saplHif on the gMMd^ aadliiat they were i|^«ded, atod that ho 
wm ptesait titfco a<|t?ey* Jfowy »«st eleai^, if Potter choa* tai 

. teato his i^arraat ^aa >St waa aQmeyed) of en though the improve^ 
flietit iMd been M^o«t|lt doeirBOl He hshAa aaMtii now>to say^ 
that it WAS nat prophvly locntod hy^ovvrof.. And if M'Clfiy'a 
tastfaMdy la halhsaedhf Ite |ary; aart Miiess thoy aie satkfiett, 
tlM the wamnt^waalmpMptrly awva y t^ d^en in point of lawf 
Wmmm htit' and of ^wia o a thie tlifatdaal PsMpingarti haa no tiUo 
iM|it iaiidt M iMift ^b-s|M«M* la hmi^ 
^ fi ai ti aat was Waited p i M|iMiy> sMreyedy i^ .reuiraed into the of- 
itoa» kUffmfmumB i#arie / H tttagid i h hprib r tUe b^ improve- 
MM fltti mmswt, Ml ihis anus waiiaoi, covid not afterward 
"* hih wifcyfaA on tiia fsMd f& qoaiilpny^flp on any other vacaftt 
ImM. li;oii4ii»oiher Hi■^ the jvtf slmrld ho aadsbsd that 

was, without his hrtaprtidga^ or agihist ^* 

by the eorveyor, ti» htnda aa whiehit Al not 

srioto; ttw the aurvey was not hiadiBg o«9etier ; hialMoota^s 







Lessee of Iteris «^» Buxchan et aL 


Btv <in th»s8fMiiid it did iNrivr to tluKt «iMnwrt «wl MPK pMt^ 
^ tke pitintair's wiMNint, ttf* title is tbe^hMtt to iMie tewUni 
and fifty aorei» lo bo l«d off*4» a joM0n«ble fthRpo, so oot^l&A. 
elude bift mpmvMMttt* You «« tbe pra|»er ond «oio j^idfM 
of ih^ endibility 4d witneseea) ood tfae wdfibit o£ or |doM(^ aad 
must ft8c^i|ajn Has lact } if if bo^in terour of. RoHor's preteo^ 
ttonsf 3F0ttr vordist ougtit to be in favour of tbe defendsiit^.P^* 
aingtoii ; if otherwise, in fkToor of tho plaintiff* 
' ThenestquestiooiSf hoAtbeploiiitiff atitte? bctcause, if bi| 
Has not, th«i bo.ooonot n^aw^, boiro¥er w^ tha ddbndom^ 
qii^ bet and lUft fo^stion iiK«olv<m.tlieiAl«rtatof biiiMilMei)A» 
aiMa. TI^4)ueoiMCia of Uw rsJMd as to ttiw ]iaiDt, l,faiihoar t« 
Ci¥e aoy ^^mmm abotit, bocaiiao» h^o* ^^e is€t« it vjjl p>i>i><^ 
bo unoecesaaryi a»d because tiio^owts areofMlrQi«i#tra|MiV 
anc^^viik wfaothori in a caae like tl^s, the wan^ of actual sur- 
vey is auAeieat to defaoi lebe plabHiff in ejectvuBpt i.«i||d wbeibov 
upott .the prtnsi^lea ccttnsded'.bjP'ttft defii^«iit-a ominKdi tbo. 
firvey, ftMUd eveiy tbpi^ Mt aiatod •• <♦• jWrnaJ of tke ci^ 
iseat, (vbiob does n^ «fpose tho WKvoy» b«^4(io wnu^ of a 
paiopt for one specifiod reai0»)>4s oot to bo onpsiMMi •• im* 
oopted; and wb^or it is iiiffombtill Q> tiw jiHHj .claiasipf imp*' 
der the siirvef ^^ to pfovo ^bal i^ tbe-teoossaiif oircumatartooa 
were disclosed by tbo^a«irpepin» Biit bow 4S tho fact 2 « I ha^ 
already stated the ovidoqi» on b#tb^ai4«B» and Hbna^punanla 
ur^d by each. Tlkt bo pmwmd aaculiib 
until the contrary ^W^^^ » • diaar.prbi<ii|i|p.> ftttrfiMty^WN 
diierous would be tho copsomiaacus,-^ afmii» lMi^ui9 lit |MVW 
tkle, apparemly T9f«JiiVBteikild bo 0|MpeUe4 bLaaaortii^ bi«' 
title, to pfOTO tbat Oie poldio ofioora porforasod tboir doiy., i| 
#piad bo aobstitoiapg. a.ritte» dninodbnt ^^>»i ibo OjwffUMi 
loi^ttio of men'a saononesi AfMt wri|t«a*#no. Tom mU tlicson 
fm coBsidor ssiA i^ai8h.iJbo OT| df n n ogj iid tbp . o a^di Mf tbe ^ak^ 
«^s, and yao mastt ba ptfriecUy satiated btyawi ooiwiisweo^ 
that «he soiy^woa npi actually nsado* bofilrf you osp 4hi4« 
votdiot^jiMBdcd oaUm to a iMt. 


« • 

Levee of Hmrs ft* Bvniun et at. 

'H tli» tsnNBf imr v^gularlf inad% then diost ckMiy PoMr 
' • €01^ itot ««rv»yy Hodftr bis waitant m 1 784^ the kind in quettkn^ 
. Md hf Peniuiig;toii} ercA nhhowgfc you fthouki ^ of opiiimi 
that M'C^tey't suiyefttni^er his wifffant, in I7Z4, was itregiilari 
«Bd not binding i|pofi him ; and in this case, jrdur verdict, as to 
Snrchaai nnst of couraeiio |br the pWoliffi Md-a* to PHwimr 
toll) also, .i^eas you shouU ho.eC i^phiioft, not oiif ttet his war- 
rant was improperly laid in 1 774, but that the plaintilPs ahK» 
.was irreyularly surteyed, by his not going pn the ground. 

• ■ » 

♦ I 

I- Vi-. . •.«?»*• . . • , , 


> . • 

«* ■•i*t.*» • .>■ 


» • » 

198 . rtMK8TLVAKlA» 

. « 


Calbreath v9» Gract, 

JMinlbranevtiW.— Altboiigfatib«onkMNiiof tiM Couit to duoge tte 
juiy, on impottent questioiis of law, invited in the cMe» \fi not in ilidf 
a reason for gnnting a new trial ; yet tiie Court win exercise a discretions 
and, if they think the justice of the case will be promoted, they will 

grant it 

» _ • 

XhIS w«BfBiM:tioft«B a'prfk^mf iiywraBco« go^ttftbMrd 
the Marthft, at «id from HafaM^o CudMgenay and at waA 
from Carthagcna, to PhUadal^iiat wMi loiva to touck at L«- 
giilraf and one or more porta on ttea Spanish MaiD» add tiie West 
India Islanda; warranted Ameikap prof^erty, proof whereof to 
be made in any of the Courie of Uni United Sta«H| if quea* 
tioned. • 

The yestel waa €aptwed4jf a Fmdipiivafteerf on her wofigo . 
to Carthagena; and rvespanfed bf a MnU k piilraiM% in Mi^^* 
1795; ciurried into Providence; andlftelled aa ^^enma' pvaper- 
tf. A claim w«» put in hy ^cmndaiv tho aaptmie «bd 
conugnee of the cargo; who aihted himaelf aho to he the cap« 
tain ; and in hia arnwar, he v#eiia that tMa cargo belonged to 
him,a8ubject of the king of Spam; the ^eioelA iwHide Sante 
Maria, alto aaabfoct of fiie Inng of apoin; Md he dnn 
fttitutiott, upon tho iMiteg of a «r«ity laloiy mnaHided hati 
England and Spain. Shttydaya ware aH^wed the patf^tepto*^ 
dnc^ the treaty^^ which not being doaiay the Tcpii^ and cargp ' 
ifM9 oondemned, mT enemiea' pi^fiporty. The oendaaMwCiM 
tocdL place on the 35th of Aagoil 17M. 

^o prove the loaa, aoA that the pripwly w«| AnMWnn,.flia. 
plaintiffs produced the psot si t^ of oaptain BonMr, dated IQUi 
Inly 1795, and the depoiritian of WiUkn M'CofMirti who JtnMd 
the capture, recapture, and condemnation, aaahoToi and also 
that ho und i nto od th|| the cargo was the proparty of th» pMan- 



CftllMMlll flR. etttf. 


||Mn I. Vff^yagmA Qms%t Meade, AMericaaveilizeiis. Tte UH^ 
q€ ladniip aisled by Bonier, the rail <?i|iteiHj stated the car^ 
tobftelMypedoft a c pa — tetfCiittitfeath & Co* and George Meadf^ 
to' be delivered at CaathagMia to tiie ««der*of Ji^naiMUub whe 
was on'board as o(»aignee;|^d supercargo, and int^jposed the 
dainb aa above mentioiMd. • The proceediogs in tiie Court qf 
Vice Admiralty were retted upon at the trial) to prove; tluK 
whether the property was American or not, the eondemnatlM 
had resulted from /the daim put in by the age]|t of the assured^ 
bk BMifing the pn^rty to belong to aubja^ of. Spun. 

la aypeaaed thsi a charter 'pasty ha4 teen sMCtifeedfat tke 
.ttwima, before the vessel aafled, by wUqh Ilenuoidem was 
fllatadf to be onsrisMl^ edBcemed 'm tbf osfige. Notiee of the 
aBf>ture was given to the uoderwikeia^-ion the Uth July^bul np 
demand oC payment or offer^ abaoden. • The dem^d for a tot|) 
loaa was asade of the un 4 er wf tters in DecMiber last; but no 
ahMideAttaot was offerr^. - - . « 

Xhe caMs^. was isiai hefcgi the lale G«r<Wt Coarti oo dbai^ 

tn^ns 'gsveo bji tbc^Cei^ aiswl a vesAkt waa»pvea Ibr jthe plaish 

UK X ntlfi hmmg been obtained to show cgmse why # new 

Mai ahettM BOl be^gfapt^dtlte caNse ciiM «4o be argued i^ 

Mwa Court* ^ 

Rewla and Cbaua^»if inour of >M wKioa, contended) 
ti»t it ws ifteumbept oi^ l%e plaintilii w^vi^an abs^donmentf 
ll>ilah| ui,t# cas^s whesa the loss waa totalf #as essea^aUy nor 
BBSisay, hee»mai»,w>ttrev,er tbi>o was a pmaihility of saving aig; 
Uritt^ thai ehaace abo«ld be transfeieed to the iii^erwritera^ 
That ni4|ua c|9e, jJtougli the ea^ure was in May, and the omr 
dawHMa tki ta^ place in < ii fw »t ,yetthe first notice the aasurem 
had was in I)eoaaiber» wh s fo a i had Ike.plafaitf ab#ado0ed al 
' ' ence, the niiaysti aslgto AaveiUfveiited the condemna«U>Q, or 
«i lesiS •M'B^ aftealt had pMsed* They cilfj^ CaAe lifl. 
^ in, IM^ S]tab.Rep;U , , 

9d. That it appeared clearly, that the property wii wok Amf '* 

. f 




0aMe«th «. €tncy. 

Vkui, but Spanithi The tni« coiittni^liM of ite .i^rramf^l!|i 
Aat the property itm w^bftdrkafiy and elHnildi amtiiuteao diitiii^ 
<he Tojage. 7 T. Rep. 70S.- If wa finn ted American propertj^ 
' elie mutt have all die Meeaaary papera to entitle her to the pri* 
^rAegea of mi American Teaael. 9 T. Rep. 196. 350. ' Veaael 
^varranted Dan iah a he must not loae her neutral character, 
during the voyage, by the conduct of those on board. Being . 
Warranted DknUky hy in eflTeet, being warranted neutral. 8 T« 
Rep. 444. ParfcOf 359. 369, This vessel, it appearB, had oa 
board Spanish papers. She and the cargo. were riefanedj bf 
the agent of tile assured, as SpenMi peopeny ; and it appears, 
%f life chatter pMy,' thut a S*p«oiard #as part owner «f the 
^rgo. These cit^ovmeUncea lost to fMryherneiairal cha n a cte a^ 
«nd were as much a breecli of-the^warranty ; as if abe had wm 
earried the papers necessary lo aupg^rt that charadei. 3 Wood. 

IngersoU and Heattey, agun^ the motion, contended; tlmt 
the plamtiff may sue fhr a total, md iJoeep te a paatial loss; 
md the only diffemnee between abaadoniog and not abandon^ 
kg, Ib ; that, fai the latter case, the plaintMT «aii*only wtoomst 
such loei as he eaay he Mm to pMva; hnt, in the . fai n iet y fan 
recovers the whole value, although the less might only be paf' 
tial. They cited' 8 Burr. 683. Pnrl^ tfO. 
• As to the second point. It was a Aamerof perfttet nnimiety»> 
and, dierefbre, riiust have been- known to thn mylsrniiieint 
that, to carry on m tmde to Hio'Spanish enleoM) whickia in^ ^ 
terdicted by that goTemment, you must carry Spanieh papers^ 
a'Spanish supercargo, ^dih mpst appdir to have an mxtttm in 
i3ht cargo. This is the eoune of thn trade, and wts, or ought 
tb have Been ktt6wn to the nndsrwiiters ; of ^auiae^ the oon* 
duct of the assured was'cooaistmt ^rtth the wdltnnty. And, ** 
aMrou^ no evidence of thh-sort was gifen at the^iridli ynt-tbn 
counsel for the assured relied upon the knowledfe of thn jury, ^ 
as to that ftet. 


« I 

OCTOBER TERM, 1804. , 




Ca]breath vs. GrRcy. 

m 4 

WJSHIJ^QTOJ^^X, Impoitant points of law were involved 
I& this case, aiid the Court ought to have charged the jury upon 
them. Though their not having done so, v^ no reason fier •e^ for 
granting a new trial ; jTet, there is reason to apprehend)^ that, 
under the circumstances of the case, justice has not .been ^oop, ' 
As the case now appears to me, the verdict ■ does not seem to 
consist Mfith legal principles ; although I mean no^ to gtf e any 
jijecided opinion. I think, the ends of justice will he most likely . 
to be attained, by granting a new trial. . . 

Rule made absolute. 

» * 


• r 

I • 


\ ' 

•. /• 

* f 



' I 



Wallber 09. Smith. 

III. ■ I I I I I ■■ I 1— — ^.^fcM^il**^^ 

, ]iMi<Mfti^ ft iit%tAd.^In an acdon to recover dainagte^alth^mgb - 

bf Itefr vcftdfetf gftve the ^)ika^ left Onoi l3i€ Couit bought Ite eiiti-^ • 
Hed t»y ft ne^ tml WIS refused. 
Tlie Court will a}wa^ set aside ft verdict, wben it is a^^fti&fA IftW; it will 

.always re^»^ the light of the juiy to decide upon facts. 
If the Court hftd jurisdiction of the Cftuse, when the action was cMunenced, 
the repeal of the law, which gave the juiisdietion, will not take ftway the 
^ plauitiff*ft rid* to owta. 

JtiULE for a new trial; the jurj having found, contrary to the 
charge of the Court/which laid down, as the rule for estimating 
the damages, the loss which the plaintiff had sustained, t>y the . 
misconduct of the defendant, in violating his orders. The jury 
hare given only the principal sum due, without interest ; have 
^ allowed the defejudant Ins xommisaiolisy though he claimed 
fione; ahd have rated the exchange at par, when it was * 
higher. Besides whick* the^ have said, that the plaintiff shall 
not have costs. 

WJSHIJ^G TQM^ J. We cannot say, that we are aadsfied 
with the verdict; since we are of opinion, that the jury ought 
to have given interest on the principal sum, in the name of da* 
mages. But, ought the Court, on this account^ to set aside di« 
verdict ? If, indeed,' the verdict were against the charge^ we 
would not hesitate to do it ; and would continue to do so, as ofteii 
as such a (verdict should be given. ' For, wlrilst we will alwa^ 
'respect, and secure to the jtiry, the privileges to which they arw 
entitled, which is, to decidq upon the facts ; we will take ca^e^ 
that the rights of the Court, to decide the law> shall never be * 
• impaired by the jyry. ^ 

But) tha. Court certainly nfever meant to direct the jury to . 
find interestyiu this lease; although^ we think they would have 

I ' 

OCTOB8R TERM, 1804. 

I * 


9-t^it » 

Wslkcr nv. Sninii* 


. been justified, in giriiig It in the name of damages. &it, if the 
jtiry saw any mitigating circumstances in the' case, to induce 
them to refuse interest in ftuch a case ; it would be going too 
far, to set aside their verdict on that account* 

As to the allowance o£ c(Mnmissions, though they wmrt not 
claimed, yet it was admitted at the trialt-by the |;}4litiff*a €0<|n- 
ael, that the defendant was entitled to them ; aDd ab w^ think. 

As \o the rate of exchange^ no evidence was 0ii»ed to tha^ 

• . .-I ' 
jury uponr.that subject ; but the difference is very trifling. 

As to the costs ; the Court had jurisdiction of the cause at 


the time the suh was brought^ and, ttiough the verdict is giv^% 
after the repeal, and for less than 500 dolUf^ > yet, costs must 

• follow of course. 

Rule discharged, and judgmmit ta be entared^'with coats. 

'. ' •• 

• \ 

. / 

4 ' 

I2q4 • 


Hylto^*s Lessee iu. Browiu 

i r^ 



j^ HftTow's Lessee v». Brown. 

.- In an ejectment, tbe pkintilF must shqv, and it will be sufficient for him to 

show, a rig'ht of entry ^ or, in other words, a right of possession. 
iff plaintiiT praifes twenty yeait* possession, or the seisin of hb ancestor, 

and a descent cast, it is a sufllctent prtma facie title; and th£f defendant 

can onl^ sueeepd,' by showing^ a better right in himself, or odct of the 
' plalntiflT. . . . • 

If the plaintiff shows a right of possession in himself it is sufficient i^^ainst 

eveiy person, but the ptoprietaiy; or one claiming under hhn. 
In an ejectment, the plaintiff, who has shown .title in himself, is not bound 

to show the title tp the same land, to be out of the proprietaiy. 
If a defendant rely upon the origin^ title of the proprietary, he nnift'show 

it to be a subnstifig title, either in the proprietaiy, or in himself, claiming 

under the proprietary. 

* * - * 

.« A RULE was obtained at the October temiy in 1803, to set 
aside the notisuit entered in this cause; and the question now 
came on to be argued. ' * * 

WASHIJ^QTOJsr^ J. During the vacation, I haire cpnai- 
dered this question ; and I am now satisfied, that the Court 
' was wrong, in ordering (he nonsuit. I permitted my* judgment 
to be influenced, more than it ought to have been, by the nUi 
print opinioaof the Chief Justice of this State, as reported hy 
Mr. Dallas. 

I think* that4it an ejectnrent, the plainttfF mtiat show, ted it 
is enough for his purpose, if he doe^ show aright of entry ; or, 
, In other words, a right of possession. If he prove twenty years' 
possession, or the seisin of his ancestor, and a descent cast, it v^ 
ID general sufiicient, firima /acicyj^^ss the defendaik show a 
better right. But, the defendant may sttcce^d* by showing a 
better right in hima^f; or, by showing it out.ef tl^ 


» aos- 


Uylton's Leasee «. Srown. 


Jhiit, is it snfiBdcient for tbe defondaiit to sliow an originami^ 

in the pfopriftlkfy ? If *tfae plslntiff show a right of possession 

01 himself ; this,' I think^ls certainly sufficient against every' 

person, but the proprietary. If the defendant rely upon the ori- 

ginal title of the proprietary, he must show it to be asubsistiog 

title, either in the proprieU^y, or in some one claiming ivgularly 

under him, I admit the rule, as laid down in tile case cited, t6 ' 

be cmvftct^ if the suit be against the proprietary, or one claim* 

ing under him ; but sot otherwise. ' 

JSTonsuU 9€t aBide, 
♦ ■ » ' 

NoTx*— •Tins opinion reifuires sqine explansEticMi; for, thoagh it seems to be 
correct, as applied to the verf oate before the Court; yat/ the principles seem 
to be^kid'dowo too geitend. It ii^ I think, quite clear, that the pbintifT most 
show a r^gbt of entry t that is, his right of entry mutft not be taken away. If 
he prove tweai^ years' iininltrf^pted ponession, or possession in his ancea- 
^or, and a descent cast; his ^t^ auHt prevail tgunst a oomplete paper 
1»tle in the defeodanjk, or any tUid pefson. BaUL 431. 685. 2 E^. K. P. 431. 
1 iM.Bay. 741. Butt still thistille is not oonclusive. For uistanoe; the 
defendant may defot it, by ihoinpg, that the plaintiff's possession had not 
been adverse ; that he a^id the defendant claim under the same title ; that 
fbe anOestor of the plaintiff had nol^ possession Ibr'five years, nnder the sta^ 
tote Beaty Tin., and so* on; ' So the defemSant jnay set up a better title in 
himself: aiafor sisttace^ adirt^fiom the plaint^ himself to the defendant^ 
or, as in the very case uader consideration, thai the estate of the plaintiff 
had been legSiDy confiscated by the State, and bis title passed to the de- 
fendant, or to some other person: 3 Esp. N. P. 433, 434, 435. 437. In all 
Qiese cases, fbe right of entry in the plaintiff, is miy prima fadt evidence 
of his title ; but it \A sufBciient to drive the defendant to disprove the title 
Ihus shown, or to show a better some where else. In short, wherever tlie ' 
defendant ckomtf^under the plaintiff's title, the possession of the plaintiff 
cannot^be sud to b^ adverse ; a»d» of ooors^, his light-tif enty, though ' 
[frima fade good, may be repelled. But, if the defendant does noticlaiBi 
under the title of the plaintiff, the right^of entry in the hitter will prevaQ 
ever tha:( of the defendant, however valid it might be in case a writ of right 
had been brou^t. In this qaae, Hyhon proved a right of entsy, land the 
title of the defendant was mfm an act of confiscation against Griswold, 
tinder whom HyHon Maim^* It was, fherefine, tmrieceaSMy te show the . 
title om of the ji^prietiiy, in^h^witf thoQfh k Bright have hecB» ^ 

% .* 





LcMee of PeansW Klyne. 



aunreff howerets «•& not retaroed iptotli* laii4 office,^ but inte 
tbat of the couacil. Beiag apposed to be loat, Mioth^ warraai 
hMied in If 63, stating the lom, and directing^ re-aurv^ of thm 
Manor of Sprtngettabury ; but directs the location of it spe- 
cially. The surrey was made, and duly returned into the land • 
oQice, in the year 1768. Thi&Jast survey comprehends a great * 
part of the land aunreyed in 1723 1 and a large body of land not 
included within. that soryey. But the land in qncation lies 
within botb aiirr#ji. ^ • 

The defeniliiBt sliowed a cdmpkte title to a pttt of the land . 
in question, and a warrant and survey forth^ balance^ prior to 
the year 1762 ; but 4id not proi^e payment of the ^consideration a 
monpy to the proprietaries. 

The defendant insisted that the survey of 1722 was void« as 
the governor had no authority to isaUe tlie warrant in 1722* 
That the si^rvey tif 1762 was yoidf being madft-aa dn odginal 
survey, though the warrant txdy anihorised »*ye-8urvey ;. cM- 
sequently, that the land in question was noC part of a manor 
surveyed according to the terms of the divesting law; and was, 
therefore, confiscated by that law l not being within the excep- 
tions of it. But, that if the plaintilT hjid a title, still, the de^ . 
foidant's was a betber, being founded on.a wanaOit and survey, 
which ia a good legah title, in this State,' ftgaiQst all thewMd ; 
and, as to the consideradon money, the jury, after sneh a lapse . 
of time, might and .ought to presume it paid. 

WASniJ\rGTOJ^, J^ charged the jury. In this cause there 
aie two questions. First ; has the lessor of the plaintiff jihown 
a title io the Ifpds in question f If lie has, secondly has the de- 
fendant shown a better right ? 

1. -The lessors of the plaintiff, or d}p«B under whcna tjicy . 
sbbn, were opce tW sole owners and piwprietaries, not onl/ of 
the igovemstent, but of the soil of Pennsylvanln; not ma pqftti- 
c^ but in their private capacities; aot*iis trust^Des'fer th^ 
people, as M. tile wMe, or any part of the sdil^ but in absolute 




OCTOBER TfiUM, \%04. 1209 

V ' LeiiMe «# Fcam m, Klviift. 

'te .limpie IbMilldr hkWMual uses, "^^la rfjfM was no mlier- 
-iMe weakelieA lily eoneessk^M &t agreements, made bf the first 
WilHtm Psnn/or Ilk descendant^; tban to render sheiA trustees 
fcr sii€& itidifiMuals, as should Require equitaM^ Hglffts to par- 
tieutar portions of land; ttnder general or specM ptomisei) 
foleS, and regulations, which tl»e preprietarles may, from timlb 
^*ttme, hare entered into', and'estabKsh*ed. 

The ri^ht of the proprietaries i6 appropriiiti to^ their owii 
bse, pattletilttr peftlen| of fhe waste lands withfh tfie*province ; 
WM not 'derhredHrom, or founded upon -any sucti rules or' con- 
eesskms; but flowed fnsm their original chartered rigiits, which 
>it0Sted lA.tbem a perfect title le the whble ^the soil. 
* BTut, since it was their interest to encourage the population 
mafi eetHem^t of the proTuice, they erected an office, and laid 
certain rules for its goremment, and the goremment of 
who might desire to acquire rights to the unappropriated 
IteAS wMiin the proriifee ; reserving te themselves a right to 
tppropriate one-tenth %C tKe wholrtb themselves, for their pri* 
vate individual use. 

From hence the foltowfng principles resulted. That all per- 
sanft ^ottiplying* wteh the term»thus held out, acquired a right 
le tKe portioD of liod^thus appropriated, not only against other 
Iftditidaals, who might thereafter attempt to appropriate the 
Mine tpaet^ but' even against the proprietaries themselves ;'un- 
Has 'they had previously, and by some act of notoriety, evl- 
ttoced their Intention to withdraw such land ft*6m the general 
maiM, and to appropriate it to their private use. As* a necessary 
eowfequtoce of this principle^ whenever such was their Inten* 
Wmi^ it was madd known by a warrant of appropriation, and a sur- 
tey to mark out, and locate the ground thus withdrawn. These 
Me^ ganre Aeitice to all the world, that no right to th^ land 
iUfSm Md off for liie prdflrietarles, could be acquired by other 
IttdivtdualS) witlibttt a •fi^ciai agreement with the proprietaries 
M'theb areola; and iMl mighrci' might not be ypon the eorn* 
^•n t0^mt^%^ Ae yo prietaries' might choose« But, if before 
• ft* - 

m 1 

2i0 \ PSamSf LTANIA^ 


JUeisee of Peam m, Kj^ae. 

suek a^cuS fl|tf)ff^pr]i|ion b^ the pfWf i Kii t tm im^M tedWrtnil 
Imd^ kr coB^lkDce with the «0ice jrulesf Qb«aaii«d a wwn ai l f 
and made aa appropriation of a tract of liBidyJying' witUn ^bt 
boundailcs of the tract thua laid off for the [M^fHielaitiea} sock 
;prior appropriMion of ihe particalar tracts could, no otherwiaa 
affect the right ^of the pjcopriatarie^ than in relation to saeh. 
particular tract. Thc^r rigtit to the* residue would remakL'aa 
-perfect^ as If auth,ia|er^9i'«BQe had not taken place. 

On thi& grovod, the right of fehe tret proprietaiy-atood at t|ie 
time of hU dteth, and so continued to exist fai hia legal rep!^ 
seniatiTea, ^ntil the year 1779; when a law of the. Slate waa 
made, divesting the proprietaries of all their estatCf Tif^tf m^ 
tide, in or to the soil of Pennsylvania, and vesting the &ame in 
the Commonwealth. But this law excepted o^rtain portioi^ j|f 
land, the right to which is confirmed and establiahed in the 
prietaries for ever* The lands thus cbnfirmed, are ail Uieir 
Tate lands, wherecrf thef w/^re possessed,' or to ii^ch thof' 
entitled in 1779, and ai^aa were knK^iplli'bf tlie oaine of thmr 
tenths tfnd manors, which had been surveyed and Tetuxne^ 
into the Isnd ofiice before the 4th of July 1776. 

The lessors of the plaintiff, who moat undoubtedly are entkil^ 


to all the righta of the proprieUries, arejiow eomydUed to.da|e 
their title from this law ; and therefore it ia neceseary. for theot 
to show, that the land in question, is part of a«t]isct.called |t^ 
knowp by the. name of a proprietary ti»th or manor^ which Irai , 
duly surveyed, and returned into the land officet Qflx or befaif 
the. 4th of July 1776. . 

They ^re ta prove ; 1. That the tract of wUi^h* the land 19 
qnettien is a part, was, in 1779, called and ^Mwn hf tj^c^nawe . 
of a proprietary tenth, or manor. 

The words of the lair %re pecnlte. As to Hftebe firf^mff 
fig^tsy they mu^ be, safh» Whereof th«y wei^ Ui .1 779, ibotarifar 
rtf, ar $0 which ikty.vfere entitled. But M tO'dieVriKAt. of 
fnanore^ It ia si^oient if they arwe kin/omi.^ that Mate, aiyl 
had bocB mtrvejf§4 and refumtd b^fa^the 4fh «f bAf i^7^ 


\ I 


OOTOBBR TERIf, i8»4. 2i\ 

m >ii — ■■■! ■ ■ I i I , i 


•Ary» tojuroid giviog te^te iir«rd mamer & ledintel mifABiiv. 

-« S«r tk«ie werp naimuiors in Penim|d'aqift, io a^mp$0f^ 
tton^iif ^tlMlt ipMd $ but there weve mMy fracts •( |%nd, appw^ 
laiftfeei to the separate uae of tl|s ptofnmumth ^ wfaiek tM» 
Upae hfM) lieeo gireq. . « k 

'. The flkiaaqiurf) thyevcforef uader thk headf ib, vas t)w land 

^ ki qwg^ton, part of a t ru a Mal ied andtakim at a wa r , on tiia 
0h of J[«ly 1776, or in 1779«. . . ' 

To prove thia'iii^W tke licenaea .paotad by Tbomaa Pernio to 
9l^aot fi^ aatftlera in different |»a«a ofjAa arst, aa wall aa the 
aeoondy. aurvayi in all ef whioh this is cAtted the flatnar of 
i ti PtogiJ l tt iwry;^^ strongly Mliad upon» to ahawt that ava^fai 
tlflt early pcjpady it had acquired this name. The tenor ef the 
•Mrrantei aftevwards granted for lands withki 4Ma manor, vai^* . 

* ing fropi the terms of the commen warrants; and this Tarianee 
paered by maQ|( w'^mmmih ^ Mrkhig this ^r nianar land, is 
jslao rdied 'Upif* !» addiiia^ ta theae,,1be IbUowhig cirevimo 
' etwees a9 strei^.psiBleri «pon by the ph^Btiff^s coons^. 
The testimony ef •wttaMnesf to s>aw that th^ weat line ef 
^ff^ manor, was^alwuira v^pHted ^ go ceosi4end)tly'beyond York 
m OytteaUk The pttnliiy of the aurteyors, and other puUaa 
eC&c4iPB»wliMMrer^arra^ wave issued UKsanrey lands in this 

^ I Biit'wvea if this tiaat'of land had never aeguired the name 
of a maiior^ prior to 1768, the survey made of it'in that year, 
mMofa manor^ is coochiUve« From tha( pasted, H acquired by* 
matter of record the namoiof a manor.; and ao it appeass, \i^ 
the evidence in the cause, it was- called* and hn e im , if that evi~ believed. 

'^Senandly; Was it duly a i i s ?^y n dt .and;fet»wMd into i>>^ haid 
.ate, betNre 4th July d77e? . - . 

That kr 111$ sttrweyedM 17 %i^^ m a^paitted f but it is emtended, 
thftt i^ wi» ant i^ tij iw awr veiyL . . 

Xh» iffmoomf •Clhn deCmteiia cfunsel, o» this point, is, 

« » 




■ II < i 




tli«t tile «if^0f iMi»«ot idaly «Mw)e ; 

Ml ftttOicNnlf!; tlie gwvenuir hairing no wai i miiy lo istiM Ite 
iNfiiMiU I^IH h wM W'eDfOBtad by tke S»r» < y r gcoww l, 
«M wm f twrnrt uitp tjic Copgca «€ Si«ta^Ofieto»«»*Biii«r 
the land office. Prewiaing these points ^ lie estiMIAni{ it ii 
Aren itifunsd IrdM Ahh^ tiMt the ilkigfllit)r of 4Mt*dirvef of 
im, vMMik^tliot of 17M ,1 tlbe foMMriitkig «ioMiJtiwii m Om 
ftninduti^nf «fld tko.ktter «s Uie #tfK;rtJniomfiir. I^ Is ^utgooii^ 
timt cbo owrvof of IfMii ts exoootod uvibr.i, wwMMk^ re-i^litr- 
ooy «i if«9r;.and t M m ^ntmA^t thtt dio r^pMiftiMi irf «i w% 
Miiok IMS M Tolidky, eainM linho it valid. Ittttaihtfvea** 
MMlody i^t ihp' w ikal in the tet wamint, of Hii.taia ^4iM 
fiiMMurrofr, is a mere pretence, since it maa aft a ayyi ( | h teMi 
a tend to ooobla the propnetaries to chaage Hio.iooMiaBi Air 
tiw purpooe of «etti^g goodtiwtoad of bad lasia* 

Now, ^ oonf eaa, tittt 1 d» nofe miaaailao* thia tiad ^ k«ls. 
If .Hie inviiidhy of iSo fiM ioiao>nift ii»w<i|Wr "^"^ "<"» 
' the aocoodi I folwfiM aii p| naa4t iituji omMM it li o > aw M t «| ' 
iMbti beMQ»ifthft4Mita«rvdf««P0gMdyi»difthow«r«ant' 
gf 17^ weto^ m o wiy ad ^iriorto-Haiaaofte 4iqes off t^m 9^ 
¥af»the coonsol might, \(iili somsf 'pisauitMliynat leaatyhwre a»» 
if^^ that the aarv^or waa boaaaJ^-pwaMfii <ai Haaa^ thkt 
survey; and this night give colour to the ohaeavadoBa, flawioA ' 
w the .aaiatate af the public oifficeri, *aa«> Ai prqfnr«Baap( 
. 4he aarvoy* 

' maitf if the fiM ««rrfy be unauthonrfbiy and ttuerly ^M, thaa 
ftflo aaoand oould Mrf, m. the nata»a of thkigB, be«>r«k««r<rey ^ 
vbaasirar mighit ha tba taaguagaof the warraat oii'aMlsh it «i* 
Jbuiided. Theve is no magic in the word r^-MirotQr. if hi4iit 
I fcjo ttfci N irer w»aaifatasorai yf^ a f V< a h ga <couMyA'boa foM ai » » v;; 
aad coQsequemly, tho aofvey of 17$B mm an^ tfeigiaiy «<MI|s 
fcaHfci i'oo ♦ spocWiat w i MHii <pa|<thig iwrt ^mt Jhrt t la a id haand* 
aries, by whieb the aarteyoa aias hprnad «a»«c»« aai ^wh^-^s ite 
fiu^mthiKMa. Aa^4h»«Hp^li«i#Mb|[Mff'«IJMJDg 


ytwiite tJM|iwi>) Hwy had a |li^<|i liiti taapjii'ififciH Oirtb 

jftMhiigh #b« MiWf of irtiia. «4Mvidl^l% m tbe^PMrrail of 
iMt, yiHiy ill* MM* ctf tlw mUnr ti9 fc» MWeyed, wrier tte 


v^owB waiiiBt% aft ip^wiWj othhkp^ ana jcoanMaaMiy) m 

W 'IMPt a KHHK^I*0]r3Hl1i|ll^ M 'ta«4W^ HMa fllMkiMMlVMl'-VJaMlia ftHi 

wmmef. 1M I> » ftaq»tMi» d uiiilha< » tli»aoff^tyt>r w ii an|Wid ^ 

. aap ■■■ w aopnnaQ win ^swa^ ^mc vB«^vy») unMM iWiHna v^ 
aa^ a p la a cfc, would have boen TOid, as agiiait tha jpi(i|ntiiiai|i 
IHia. H ii gbti tiaigii ^rootod it ta l»mdet eaiAilMfete^wM^ Ite 
HMMm. It iHw u i iiudi tiitit tiia wnroy of 4 70i».t^iw'qttafana^ 
% irkh vlTD wanrMM. It was aaoi^ad as aiMiU Mn^t nd i 
matM Me iifRM whM givjfHid ite 4atadh«t , « «f %t|ier 

siRi iKK ^BB "pmynDi^iy •a'vi^^^p^jpppQIPiaBBai^a 

ifsie^ ttie land laMMI^MiHik ilii au iiiuy «f tfM, la fNVt «f 4iia 
fgaifcB n^ch ImM ai i ^j iF »awa l aa ii^ a t 4 A«l #tl» wMHit 
-tM 'Mrrof'ntria iMi i i ^ p« | i < Wlui) wlwt d*at it^rigiii% m^^ 
Aiar ^fliafa wfs a prtai inii»a> oyiits or4liathar k ivaa gaad or 
MM I a(iiilt,DMt i^ pi» i h i rf ri) ar«idie igtavaM «f 178^ Uiiid 
jtol<ioaatei} aaqofaM a r%te >to ^paK^tfto «f dM 
ila vtaHwia, and <Mhm tlia annray of IMi^ lw»i wiili^t ao- 
tteaof «f wltftwit/ ii» H 'l ^^ ii MM y wavfel taira: 
luake <iMa titles, u|mi tlieii* oatafigMiif* iM Hia 
tarnts; %a«*aiB ocsiiia nm itayaadh siiiiiiiia aluha 
tOi tha vassdua nf Ttin Inmrl, nsmiiTillniirtird atMa ilis iiwi iif 
' ^4^ aiiipve)>v 

U|M tbe wlKla, tlMBy the Ca«ll4a^«|ihiioiHiriM -Ma 
vOTiPn fMs waiyr*san^ijRw^*'a9ii ^ aaaMiMaattfriaaft Sha aaSiiraT 
wi idl lH » lii jfcia<U»^lMi« o«i3 u » il< ai au J^kJalyiW.. 
• TltoMMI qdMlili iB,M|«te 'iefsddiM « MMT 40|aliMi^ 


Leoee of F«iiiii «i. Jii^iie- 

HecWu by • wimfil diit«|i in 1947^ tte tide to irittck|is 
iiinnlwil dodiicecHa him^ ibr ninttf i£v«4«^^r% piort of the Uad - 
«i'4k|^ie. He k«e no patent ; but yeti by the Coauaon Law 
^ this StaC^ % wtirranC na ^ ft grnff flf the oenaviflr^twi be. paid,. 
^w a legal title 'VLgaiBat the/prnprietaiiei^; aa nMiich ao aa if.a 
patent had been gnsMa^ / If the conaidenlmi be not paid; 
then the legal title ie wt tiht .o^ the propnetariea i but atUlirthQ 
warrant hoklBr haaaa, equitable tki^i w^ch he ipey reader a 
legal oiie» by ^piqAlg vhat ii^ chie to the piie|«ietarifjl . 

N9 pmif ia fiKveo of payxm^M by the«defead^f^ er any one 
iHider whom he claiiMi bsa't -the' j||u*y ate cidAed upon, to pvaaog^ 
itfeMn l e ait Kof timt* 

Ine.oe9eoftibfilaQrt, there ipom for prefun^^tioa. Th» 
very cifiEuaMitv^ce of the defflodautappeMBg in Courl, .with* 
out a pateiil» or. without showing oiv pretending that a patent 
erer was gganf ^ i dei|rD|rs.tte preswption, which lengthy, of 
time might otherwise have, cciMle^ « Fori X he had pi^ the 
aanai Jiii intiow»o>i&y» he woiiid» thatjhaem^t».hiyyeJ|>een e^itUwi , 
W a paCeiit. The e>ne Waa a neeeaaaiy reimaqpiiinne of theother^ 
AflMB ajght, ibr a leag'tiiiaer forheat to call for this ooD4piaa^ 
nation of his title^ fivm hi# hMMMtf to p^ tha considaratioa « 
maaey ; but that he should pay. it» aad not gp on to perlbct his 
title, is altogethac improbaWa, mSk eanaiQly not to jbe pr^uaned* 

Buty if the jury eaald piesume any fthing ihfa len^ oC tiin^ 
yet that pieauaiptioa may be repelledt,aad in this «aae $h^ i& 
a>rbDt-#>liiaare to^^ipal it. 'Kh^ W(UMd 'giaAtee,.in his deed 
to ShiaHzfin ir71,etotoi| that it had «ot been paidf and such 
la the atateaieat ia the dead fioia*^hultz'a esefiutVt in l^^^^i 
«e Stamp, under whana thw defhadant claims. . ^ - 

The dafendaat therefore has i|Ot a legal titl^ so ae to. eipaUe , 
Itim toMMicceed'in I h ia '^ iWt " 

, Bat het haa-an. anaiiahla titb^gaii j^My y»^H^ ih» i»M»!y 
of the piaiatiff to aidte hpa-a cObTqranee,, apaa^his payiag^or 
teadeoaf, whai.i* due to the plaintiff's lesson, with vitet^st, 
cotts, kc Aad If the piiiatiy *a iaaaoia l^^apl^ <ofi «nfi|^ f#p 



OCTOBER T19Ni, 1904* 31 5. 

Lciroc of PcnBs tw. KlysK. 

ment or t«iiidert f«tee to make a coii¥«yaniie>^luft C»iHt, ut- 
ting in Eqaitft wo<ild-oompel them) at tbe expehte of coats in 
that suit. 
■ I uniderfttaBd, that in the ComrtB of tlyis State, ^e jtiry^, in a 
cattse^of . this kind^ may make a special pv conditional finding, 
in conseiiQence o£ there being Ho Conns of Equity in Pennsyl- 
vania. But tl^ reason not app^iny te'tUa^^ourt, the verdist 

.• Ferdici fir fiUintiff. 


V ■ ' 


»• ^ 

% , ' • • « ■^- •. » ■ f 

* • ' , J «' 


• *•■• 




rsmwfliiVAiqbi^ AwnsL matf If 04. 

Hoik BUSHRQil WASHINGTON^ Assocutte Justice of tbe 
BBMBB^ SapKine Govt. 

.Hpn. BICHASD pteT£B8» Piiinct.lnflfi 

Lessee of Swan vt. Hughes. 

f^eotment—The certltaAe «f 'the oolnifiMoMM of Vlrgftit^ ftpptinted 
lAidertlie Uw of tiMt 8li««, to »(y«ik liw ^twan ftr selliMiient sod pre* 
^mptoi rights to luid^» which were sftenmas fmmd to b» wilfaip the 
Itoihs of Pe«i9lv»a^ bei^lT <> JHTi^ b aot en^ 
the bndB in dispute. Tbe holdjer of the certificate must proves by other 
testimony, bis settlement to be prior to tfast, under which the defendant 

1 HIS cause tQiiMd almost entirely cm the evidence; and tKece- 
fore it it only neceaatfy to state here, anch of the tfrcnnistaiicas 
as maf be required to explain the only law point which occar- 
rad in it. 

The plaintifff in 17S\^ eiituned Irom the commiflBioners in 
Virginia, who were appMnted, under a law of that State, to ad- 
just the claims lbr*aettlenie'nt and pre-emptioa rights, a^certffi- 
cale for four hnndred acres of land, on the waters of Ten Mile 
creek, is Monoogah^a County, to include his aatlienlinit nfade 
in 17fO. A survey was made, by a Virginia auiw^yot, alter 
the contact which took place between Virginia and Petmsyl* 
rania; and therefore was not relied on as an oftciai sunrey. In 


• 1 

, ^»i 

' Lea0«ie^ of Sw&a m^ Huf he<^ 

l.i ^ . ■» 

itiMnied by llinpi^oCafttlement. ..JiMit1i|ye 9i;me4aii^ was 
i^9l cbdi»«d bf'MUlar, in H^ of a pii|f 9«tl&ii»eii|, yUcfo It 
jM» f|diiultfld-4«^|i»d made. S^waafa caitfficaie right ^itt &und* 
Hd on apnckua of Woodiieldy nh^ il appeared, by the evidence* 
.in ilH^^^pppe, &E«il"setaed it in 1 r74* It.waa 4:leafly eati^Uahed 
jpd t^Siaij^ Uiat li^illar made hia a^demMlin 1773. 
4 :ilk1i778» Mii^»«ued ^9m$ w^n. clateied nad^r Gvegg^ anj 
4ind i^ja«iB< a» oC fguc^miiAped acrea, Hf i^covered a ge-^ 
awral varjiiati -Swan then aued Oi::egg, in an actloo of covenant 
an 14a -daad of warrantir/ con««jq|ig hiif tbia^fijibr Itomdred a^xpi 
^l|Q«a,,Md laid* hia bveach aa g^aftl m%^ dee4 He 
a riipi|f %nnrtpn indaiaafiaa^,^ 
'. ip ^ case tba ji#iliff conteaded, that 4ha,icertiiea^^ ,waa ^. 
aM|||pnce;tiiftl &«a»'a aMleaoieiit aM flaade in \7m^ aad conaei- 
fttcaaly Hia right avM 9«|ttr to^fWar, (amler wh<|ffU»e d^end^ 
4pt aaiadli)^ Seaoatt|»-^«Mt bo» tliat yai Millar had agre^ 
to fix a Elding lina lii i i ann hiaa aifed Swan; so as to leave to. 
taratt theiand tuosikim dtlputei and that he was bound by this 
la^tllinn Witileaaaa areae produced, on the part of the plain- 
tiCS;;to piovelhia lis^caflon^ andoa't)ia}<^nie defendant, to s}>ow 
Ihai VttUr |uid cla^ou^ a hi9undaryy ao ;i9to iaclndeit, and had 
q^oaated oitt (peitAB|f-hi8 snk aricirSwaiY,) ta the surveyor, that 
ttaif aa tptt.houadary.;., 

t# t Hy^ a rid dtce atlaanflarfAa hetiMirn from 
5 to «gaikMi Swaa'a ^raor aacdametit; the Coait 4 
ited tp l|p«|iBfy, llial MiHar claimed t)te. laad in qaestiea ad- 
^fTT'-'T y\0r J^^'^^\ in Hrfa,'a8 pro¥od* l>y senile of the int-^ 
. aageoa|4e<ai tW "^hla must hmm bees knoam to Swan. That 
^a fsfMf^fXr^ beiagahlaiaad » p4rte^ irttihaat notice to Bjlliar, 
• lie caoDot ra|f opqaik aa avidioce, on a.questipo whether- he 
^ or Millar nwidl tta iMUeetiler, to prove tfakl he was. If Millar 

^ • had been Jbafore ^^i^iiininiiiiiionersf it wouU have been other- . 

wise, ^ttt to biA4 biaa, by a judgment ata4% ^^^^ Swanks set- 
ttangait laaa in Itf^^ without h^ having had an opportunity to: 


"« ^ 




• * . 

' MNlffSYt^AKtA,* 

I <• 

Leipee of •wan «». lAfgfaes. 



.JUta l.i«CJL 

tnd fftw. "Fbe >iue8tibn here iS) irho Ivad the fiffM settlemeH^ 
Millar prefret biiin I7T31 and S#aii Aideavoilrs to pmte Mali 
have been in ITfO, and reRca upon an ex pnr$c judgmMtIt 
tatablish the fact. TMa is iiftf>roper. , « - ^ 

Swan's certificate ottl^ states, that he had made a ayliiniill 
in I770/on Tei\l9lfle cfetfk ^but on what part^ k wk acted. A 
might be SD remote Itom th^ Ihsd ih qaesitii»ii»rtt«t h# diWId 
never reach It; consequently it is incumbeht ^bir lilMi^ 19 slM^ 
tb the jury, where It wa»; and therefore h^ must finveldiiMI^ 
ttensent, and locate it.. Whether he haadone so; orwhethertlR 
Agt^eemebt sf Miller to te the dividing Ktte ascMieidlMMt^ 
l^ntlff; or whether th« rocovery oC WMaa wti^ft^ tiHi WlMi» 
tend, to* iiclud'e the part in dispute \ are liMs left to ^ifp)^. 

Vno auchline waa OsMiahed^ of If^heMId ntrntm diigMli 
Wtis recover^ by Mihir against Sw«n/M*'whh»<#Mtt'%l9 
tomp«nsated by (^r^^g^ then 'tl«B'T«Mtet abdttld he Ibr tkfOnt^ 
ant ) if otherwise^ fbr plaiiitiffl 

^ I 

• • 

• .« 

»» m» 





.Onder the clmise introduced into poIicieB of insuntQce, relative to the sen- 
tence of a foreign Court of Admiralty, the. foreign sentence it not oonchi* 
dve, fn ouf CocM, to ftMfy the wtanamty, -whSdi^ttie assured m itUI 9/t 
Hbtity fOiMHiMSb The «fid«Hfiii»ft may, B«l«rtfi«le«» read the ptp» 

linbkether it was the coune of trader to p\A on board a Spamah Supia-cai^ 
with dpanish jMperB, and coloui's { is a question of fact for the jury; and 
if this 10 proved to their satisfaction, the underwriter^^ who are boundto 
know the course oFthe trade, cannot object that such biicumstiivea wye 

* ctecfaJ ctfftpin dieBlf 

W <i« htemib iot mmuntf dt nimt rnf ^ Hm^ fnnel Md 4H(po^ wamMaA 
Maim— |i<>ii<|tiihrfiiie tMwjptBii.aB^tfhimfd tmBpmtkffgft^p 
^ md Mwtijl^the ■efidiinne tHNPpve the j^^HHwiity of the vefscl gnd eaiyi^ 
a^ cDocealedy from th» capt9i9- 

|d case of such^warranty* it is not only necessary that the cargo should be in 
truth neutral, but also that no act of commission or of omission should be 
p^rfonnedf to jeopardize the clahn to a neutral character, whether by tb« 
owner, or by Ins i^cflts* 

Tllii fwin rwiiii ti It rrtriii. (lim trrrr iriT.) inrl nnrh nri 

tlie cbarga. But "ni tfn f wiipg of *th» mnmt om the iliftBriant'a 

i*te»*<fac iiiriiUMr lii^ Ijto Hiiir tmdll^f l>» fitnfAgJjiHi jy 

4ie GmM^ Vidi ^itolrritf In Mtm RimMmmi in cmiiftr 
ifueao ^ tlie <!>■>» inl li ri fi#l» »<l<tt it^m Ammum rhmmt 
«fer «f Ite ca«8»- •iMuld to ywmwoBd, iftdlOHU be suficiwi 
Jmt till* «HaM' te^^WM it fie ife Mr 4300n^ Che UniMd &M 

JklmiBftvmm clMM, which has bMii kmm^tm$d ttm iwiliftrw 
mt iiintanca hf poaie miMkrwriftaniy jpillMI a Ufv fmm ^M* 
Ultt MOMr 4t MMrivet a coBaMvetion tb|i -tetter. To m d or- 

» ^ 




t • 


Csltireftth flt. Piracy. 

st^nd it} we niift pursue the nile adopted m to U»e expoaidoB 
of stetutea^ Wp BMpt find out what waa tbe mischief it was 
ioteRded to re^iedyt mi then the «cGeat wf the reniedy. The 
mischief was, that the sentence oi a fi>reigii Court of Adi)airalty» 
eondemning a veimei as enemies' property, oi^ as lawful prize; 
^as considered in England, and has been so decided in some of 
the States, as coochisive pioof of that fitct against the asauiedt 
ao as to forfeit th«ir warratty e^^aatrality, apd thia Uf^ al- 
though he tkmM he able-to fw^e the fidaityeiiliecQMfikiiieB. 
The remedy wii(M to meet aiyl correct thisfwhich'eftea in Ibrmef - 
wars, and still more in those which have lately happened, wis 
acrying evil. We haveall beard of the^conduct of some of the 
We^ l|»dia Qourts of Vice Admiralty, and thejihame&d.aban* 
donment of all caftect principlea, which faai^ discharged vat^ 
dl their deoiaions. The .amiaai dU Hot chooeetfaat the pto* 
pertyi when really neuttnf^ and wfakh Itey omM pt«v»lfr to4M^ 
should be ^declared otherwise int' cons^eeoee oi a tentenc^^^f 
those CourtSk But they never meant to go farther, and it would 
be improper to have done so. They are, notwithstanding the 
sentence) to be at liberty to vindicate .the troth of thdr war- 
ranty. But the underwritete may combat .that Act* bf reading 
the sentence of the foreign Court of Admiralty as evidence, hm 
not as conelilnve evidasiee; Ind e e d «t ni^^ iifttui be easnitloHy 
ew>fl a|aa r y> in order to pretm ^e Jtoea^ ^ 

. <»m^9. .mMamOTOM^J. The fiMiin«lite.Q|meaM 
diertly these, ^he. C«niMMa» being an Amerkan ^wttamn com* 
mmided by aa Am^ricftt i:s|iai% and baMgii^ 'avMrdy t» 
j(kmericans; aad hemg, m the^jPMp 479i| at the Havaaa; toek 
m a eargo of . gooday piMhfMk h|r4fa». pliMiaiffii^aad'^^^ 
American citizens, to be carried to Carthagena. But pveviettB 
m.her aajlii^mri peHiffe le tim purohMn^ ef her. cargo, a 
ehaner pasty was ^Maosd mto, between Wyhei; wJm rr|iiif aeht> 
edthe ewners of thaium'l, and some of the past omieiaof the 
ea»ge, Robert Mender and Cueau and HtaMm4bB» two %ll- 

• * 






Gftttiealh m GcMy. 

» • I 

niardsy by wftkH ir«mB sgmd, <hfai tte €««s»'ibMld be put 
on board bj Wyl^iff and Meade, in whMl Cile^a and Hernani- 
des should be tiormmmtiA >eiit>'third, ^K^yiwff oM-third, and R. 
Meade one*third. • Tbat fbe akcmld pvatfied to Carthagena> 
and from tlv^nce to Philadelphia. The cargo to be consigned 
^ Hem^ndeB, iriR> i|Nts to go 'the voyage ^n.oi^er to manage 
Ihe affairs of .the cittiiltaB, but who was to^^receive no cmmami 
^limiut kk la»Mle. ife»'«lHigQ%*lalKn in -at Carthngena, was 

..' ta^teMid«MMui«delfK|Ma oa-fair «i#val4iHV^) and one-third of 
tl|e neit-f iPieeeds^to te ptdd t6 W^fioiff; mo^tHtmA to Meade> 
and thi«^«^r thM tq C^este and Hfim<li»z. * 

^'\t00h^ki% wm^g^xsd by Bonner^ thi Aaie«dan captiitny 
in wliMii Cafiveath Md Meade, ar^ stated to b^thaiownersof 
thetaiigQ. ODibe4(fcAprp«>fMde.9a««to.WykoiParea«^ 
ft|ith»4»Mt of:-«ne halft of the ««#^i (laid him hf WylK)(^ d#- 
dM^ Mte Mia»; b4|n(^*.e4iettt«nd Hernaai^' Mie4kM ' 
^ tliCcosI and aay i^PB e aisp iftfA teoicA. .^ 

:lEW'tPW»el sailed soom tlna in ^|||rik iMvlftg S yian W H ijit 
well :te American papers* and <;douTS fyMi Hfimm^z oil 

. boftrdj as eoMgnee, Mi i n< la :«pfftftnt miailer of t^ .yfomk 
She was met with at secJif xrfMlifl|ieh^vaiei^ made^pipm^ 

. and otdnied Iba^Caiie Fnm|Ui« A few dajfrd titemjSrAa, ,ahe 
wis. nf$tktR bf n BritMi ptd^teecs and canM 10(0 Malsaia 
in Nc^ Providence, wbiM ahe waa/libettfid as betai|^g- la 
eitiaenSQf Aanfe. tf«imnd^Atai^ velalmy In wliicb be stated^ 
od i» wmmnt m the aten^ng in^ac^tfosieay awere»<4M^ hi 
was aole qwii&r of the eanga^ and )SaMtai liifaria of the-vesart 
Hf^MlM iHPMm a treaty bMnBan Siwia aad En^and, wlwM^y 
Ilia asKuhtiPW of tlie Qciftiah Mne laaMi as to re-eaptair«ai 
wefiaMildi^ adafHe* by both MD««aies. Not being ablp to 
f«oda«e^ aneb a tMsty* wttm the aiwty days, dlowed hte to^ 

<- tda so; -for in Aet^ there was none «iMih$ seniteww lof ioottdemnar 
^|l»i paned on the 94th of Augusc* * * 

•JDn the 14^ of May, the plaintiiTs wMta lo^ a broker la Now** 
-Hfs^i tQ effestjUNttrattce on thia vtesiit<and cargo, at aiui 

• • 

'' -» 


314 twamrLYmnA, ■ 

LcMee of Peniw ot. lii||rBe«. 

HeeMm by a vnmiit dittipl in 1747, U»c Itde to fi!bkfa|ia 
iHftuhBil 4Hkice<Arto hmy for mii«^^««^|ti» |>tttof theUod 
«i«4iii|Hite. He hm^ap patent ; but yel, by tlie Cdmmoa Lav* 
'•f tbia Statyy % warrant Mrtjpipyf|r» if the o«Mvii6rati|M be,paidf» 
g^es a legal titi^mgaiBat the proprietaciaa; aa mi^k ^M if.^ 
patent bad been gi m ^ M, / IClJie considanite. bc^ not paid; 
then tbs leg^ title ia «at ^bt jnf^the proprietaries j b«t aliliy the 
warrant. biMcr hasan^i^uitaUa tilijp, wbicb ha jpay reader a 
lagaljoBe» byyyjig what i^d^a tg the pfafaaetattgal • 

Nq proof is fjHreQof paymoit by the<defandaki|^ or any oas 
iHKbr wb<m he claiiMi lai't -the jiU7 are calAad i^paii. l» p 
it fr >n»to i %t Kof tme> 

inaeaaeofilM0aMt, there ia no room for pre|iui)|^t^^ Tbn^ 
very ciiiDiua«l4Poe of the defeBdaatappevriBS io Court} witjb^ 
out a patofHi o^ authtatt showjiag oi\ pretending that a patent 
•rer was f;inBt^ deslrojrs. t3m pmiiaaption, which langth^ of 
time might otherwise iiaVe,caM«4« ^o^t'd he had p^d tha 
$mMi rat io^waawyf ha wovi^ tbat jh|a i ay t» l>y e Va^ eiHhted , 
tsra paliiit. TheOTOwas anpaesiiaf^ raine^aniie of the others. 
AfflMm floight, ibr a long tiaaap Ibrbaat to call for this €OQ4pim*r 
tuition of his tiUa^ from ^ bwiiitty to pi^ th» considaratioii* 
mottey ; but that he should pay. it» a#d not gp on to packet his 
title, is altogetbei: ian^robaMas 9tA ^aartfinly aat to Jbe pr^uoicd* 

But, if the jury caald presume any jhhing iiqpa length oC ^ifiifii 
yet that pieauasplaMi may be repelledt-aad in this case J^fP i^ 
0g%»ng aaadNKa tojripaji it. Xlie.c^rigiDal giaAtea9.ia hift deed 
to ShuAtzv^ irriyaMNi) that it had vot Jbeen paid; and such 
k the stttkeaAeat ift- the daed fmiiffihultz'a ttecu^rt in 179^, 
ta Staaspf uadar whstti thar defendant claims. ^ • 

The delendaM therefore has not a legal titi^ so |» to enabia . 

. Bmt bn has. an. anwiiahlg ttth^«^4 jyip^ p^igpf) \$ha l^aaN^ 
of thepUttifftoiaiyCa hp^acdhv^ancef^iipao hisj)ajrui9^<Nr 
t ab derif} whaiuia due to t^e piaiptiff's kisoiiy wi tb.yitf r est, 
coits, Ice. And if the pliM|r*«,lesiora |ttil>Uii^ ^xi^ f^f* 

OCTOBER raiM, 1904. 




of Pcnns 98. Rlyite. 

• II 

mcnt or tmAw^ vttee to make a connreyanoe, Aia GBorl, sit- 
tuig in Eqoitfy wotld^oonifel them, at tke ezpehte of costs in 
tiiat suit. « . 

. I unfierfttandl, that in the Qoiircs of tWs State, the jury, iB a 
€ause*of • this kiiid^ may malie a special pr conditional finding, 
in coasefaence ol there being tio Coufts of Equity in Pennsyl- 
▼aiua. But the reaaon not app^pf to tUa'Court, the verdist 
must be geneiaL 

. • Ferdiet for filaintif. 

f • 




•* * 


•• •# 




Calbreath w. Gnqy- 

fonner as the- aoto yofifiV ^ ^i^>4» JMtria, Md the latter as 
the sole propeitj of hiniadf; and this chum he seals by an. 
^abominable perjury. Nothing but S]|afush papers are produc* 
ed. The documentl^to prove the vessel and cargo AmericaOi 
are carefully concealed. Both are coliseqmeatly condemned; 
as Hernandez did not, and cauld not sitpport the groux^ of . 
defence which he had tiiken. Had the truth been told» I must 
say, judicVdtyy thai the whokrwonld have (leen, restored « he* 
cause it ought^ 1^ the laun of nations, to have Wen restored. 
Spain and Fsao^ were at war ; but. Spain and ff^land were at 
peace with each ^theri and uiiked in Jhe war against France* 
America was al p^ace witk all the world. The tra4e which 
this vessel w»s carryinf on wiih the Spanish colonies, wa%law- ' 
Mt in.ffeiyect of. Spaing becaupe> in hff6 instance^ it wa»|y^- 
.claUy pemiiOtfi. It was not a cause oi coi^iwwiaiion in a Bri- 
tish Courti because Spain and £nglaad weii^ v^ amitj;} and the 
B^tish eirifiyS'^hich fojrhM the^.^^^^ial trad^ of neatrals in. 
tim« of war» wtAcjb wan interdicted in time of peace, could not 
apply to a trad^vitb one of the <^Jonies of a power« then ^at 
peace with England* . The war. b^we^n England and Spam 
d^ not take plyc^ lill the spring of 1796^ 
.. But,* as Spanish property originaHy^s^^dMn by h^reneiny 
>0pme, she became subject to confiscaticvi to the British re- * 
iHiptors I so that, if Hemandez.had been,«m{diyed to procure, the 
condemnation of this caivoi he could not hav« done it more 
•ffecti^ly, than by th6 coarse he pursued. JEbHr^th(p9k does . 
inch conduct comp<^ with the engagement n^e )jj tl^ as- 
sured? What did that engagement amount to.? Tl|^t the . 
ca^go was American property. Not only s^ ; but^ ^tjnyt^jghe 
^houM not lose that character, during the voyage ipwedf by 
any afit or,oii|j^on of the assured, or gf his agents. . T]|at she 


* Tla% «psp tbe jpwwad of Jiwfinf \\f ; heoMSMbrin does not resl«q» 
(he^fpmper^ of a (Baeod, foAm l9:'her e^^ XRob.Rep.63. 

Xhe Santa (inii. 

APRIL TERM, tsos. 


Calbreath m. Gncy. 



should have all the necessary documents to establish her neu' 
trality, if questioned, which were required by treaties, or by the 
law of nations. In shoi*t, to use the enopbatic words of Lord 
Mansfield, in an important case, she must be neutral, io the 
fiurfio9e of being protected. The expressions contain the pith 
and marrow of such a warranty ; and a volume written on the 
subfect, could not make the nature of tSlia engagement more 
pIttR to the meanest comftehefision. « 

She must not forfeit her neutral rights, by &ny act or omis- 
sion of the assured, or ^f his agent. Yet, by their aci, she is pro- 
vided with documents,. to prove her Spanish property. When 
mot with by the vessel of a nation at war with Spaiui but at 
peace with Amejiea, he shows the Spanish pikers, and con- 
cfi^ Ihe A«>tiiWB»-> When carried into New Providence, in- 
stead of claiming her as a neutral vessel, and the CMA*go as nefU- 
htAS as If'mad, or wdrse,^^ claims them as Spanish. In short, 
the assured have exactly ^ done the things they ought not to 
have done, and have left undone the things they ought to have 
done.'* And can it be serioujsly contended, that the warranty 
hsii»be«D complied with \ But, k is said, that Bonuer was tlie 
r^ miMtter, and the only agent of tl^e assured. Why then did 
he not put in a claim Jbr sIm|> aiid cargo, on the true ground of 
▲qserican property ? It was his duty lo have done so. His 
amUa^on is lh» sarae^ as if, by his acts, he had produced the 
feODdenmatiofl. .He ^s, in his protest, that be was not per- 
mttad to do so. i totally disregard his protest, being ex fiarte* 
fiat who prevented him ? He does not pretend to say, that the 
,Coqiit pvevea&Kl hm ; and,, if Hemsndes, or any other person 
altempied it, it is no oxcuse. But, the feet is, that Hernandez 
was, by the chsi^er party, oonst;ittlted supercargo and con- 
signee of the €flf go, and was appoiotiad to manage the concerns 
6f the •woers. Ue then was the agent of the owners, and they 
^peJiahle to all the consequences of his asiscondiirt. This ob^- 
jHftioO) then, to Hm phdntifPs recovery, cannot be got over. 

Juri^'/kund/or the defendant, 


Philips w. Ledley. 

Philips v«. Ledley. 

Tht master of a veaid, from the neoemty of thte case, mi^ hmd his ownen 
fsr repMn ; indeaB it i|jpetfa» that -aome odier pefMm hat aatltanlf to 
yanaga thccoaoetiH in the particniariiiatMwet i w d Itli f tlaa w^at awwa te 

The uMBtfagee of a vesaely befeve poaieamm defireved, is not reaponnble 
lor lepaisi made by the mortga|^ $ nor ia he entitled to the 'eaminga af 

By the Um of the United States, relating^ to the registerini^ and enrolment of 
▼essdi^ the inaoeante wcitsl of ^ ceHiScate>ori«gisl>y» In al^iil of aale» 
■at, M in England, wNiidti»aate^»i<«Mfeiyia |»i i m tlifeiMwi of 

If » >%iil»wi xemei ia assifped to a to ci fntr , ifca ia mdy dq^md gCl|9 
Am«iicaa dvacter. 

The sale of a Ucenmt yeasel to a teeifner, is not void { but the vessel b lia- 
ble to forfeitore. 

jLHIS was inde6itmtu9 h99ump$it^ lor work «Hd hkxx» ^mut 
and perfcrmed by pkiintiffV as shi^ carpenter) ott the lAiop lir- 
«dnatry} tlie ^^roperty of the defbndaat. The maitefirt ftcta were ; 
that the defentant,<beftre the repakt w^remade^aold tlie liof^ 
to one Vcay ; and tlie contrtfct^- whieh was in wvltingi stated) 
thai «l. C. Ledley, (the person <iow aaed as detedant,) dvMll 
hai^;aiD and agree with J. Vaay, for the^ stoop Industry, HfT 
380 dollars ; payable one halt on delivery ef thie Tessd, atnd the 
remainder in three months. The said Letfley Keids eh<s itafsi* 
ment, till the balance of the money is paid.** Vasy paid down 
20 dollars, and in about sixteen days afterwasds Toceitad poa- 
session of the ressel, and then completed the first payment*. * fie* 
also stated In evidence, 'thst- he carried with him, ^ his firit 
voyage, the license and <snrolmem, but no dbange was bmA 
in the name. Vasy broug;ht the vesseK to FhHaddphim, and i 

employed the pHdutMr |j6 impair her ; inlbrming him that he had 


Philtpt w. Itedley. 

purchased her from the defendant. The fepaira beiiig made^ 
IQ the amount of .633 doUars, Vasy gave his noii for the amount^ 
pliable at one hundred and ten days, and then went on a trip 
to Baltimore, where be left ,her, and returned to Philadelphia. 
The note having become due, and he being unable to pay i$, he 
was av^ ]u4gnaent recovered^ and being thrown into jail, ^e 
tfiok lite benefit of the laaoivetl l^iwt^p^ the plaintiff was i^p« 
pteted one «f hia assignees* Vasy scM the aloop to one Pa^uU 
IFho, at considesable expense, brought her to Philadelphia, and 
eonaented that abe should be sold, and after paying (hese ex- 
penses, the rpsidiM^ ^should' be applied to the diacliarge of so 
much of th^ ori(|iiialf purchase mpney, i|3 was^ yet due the de- 
fendant*. . ^he waa aold for 400 dollars. • It,a];|^red from the 
ylaimaS'a.boehBf tb^ ha had charged theae lepairs to Vasf, 
4av ^ sloop Industry* The plaintiff, opt being aUe to recmve 
jpHiiaiut frofA Vasy, brought this soit. 

The Court informed the counsel, that t}ie ^tify ^estion was, 
whelter, Holder tHa circuipstan^ea bf this taaet (about which 
there was no. dispute,) the plaintiff could recover against Led- 
lflf» t|a Atimiv^'f and suggea^M* that the case should be ar- 
.pKi4 aa:^ point.of law- The counsel pf\ bulb sides aasentiog, 
fJmilhL ^i^insal for defond^t, laoved fiur a nonsuit. He con- 
|<h*id Firlt Thsf^th^ 4efoa4%Blat no tim^ ^as raspensible 
lap llia«e wltpmn^^ ai>d teliiMl pa th^'aasM <^^a6kaah vt , Veni«i|, 
1 4i. Blaalu .1 U, aiid Cbinnarf ^^^ B^kbum ib. 1 17, to show* 
jkfA even the mortga^ae of a vesaeiy wt of posseasion, is nei]^#r 
MtMttd to the eaniings of the y^fmHf »or liable for repaira or * 
iPHmWi, That peah«pii U migl^ \m aontcnded, that under the 
$Bi aaetien of the A^^ 13th February 1793, 3d vol. Laws of 
CwgMMb P« i9Zt tk^ sale to VaatTt who» it is admitted, waa 
tlMi^an alien, bf pft^dnifiilB forMlore of the ve8ser,^jir0vented 
Ilia titia hom eir# peaaiogoutaf ll»e defendant. 0«t in answer 
ia thla, the ^We pM a e dlPi and rei<a|||ed m the vpadee> until the 
Jiilaitmri waa ooeiiMad bjr convip|ia», and therefore, in re- 
i9e«|t9jN8 aatt; |qp w^to aV Oie v«^ thf <rvner. But, if the 

t . 



Philips t». Ledley. 

sale prodoced the forfeiture, then the right vested in the United 
States, and on that ground the defendant could not be nmde 

Second.— The plaintiff, by resorting td Va%y, looking to hiniy 
taking his note, and suing him, discharged' Ledley, if he ever 
was liable. 2 Stra. 817. Abbot on Shipping, 85. The plaintiff 
lost his Hen on the vessel, whidh the''Yaw of Pennsylvania ga^c 
him, because, he suffered her to make one voyage to sea. 

Messrs. M. and S. Levy, for plaint^, contended; that the sale 
to Vasy passed neither a legal nor equitable title to the vessel. 
The contract was nothing more than an kgreeraent to sell, on 
condition /the whole [Airchase money was paid ; wit an equita- 
ble estate, because the purchase money was iieirer pMd. Led- 
ley, therefore, continued the owners and to sho^ Ms liablHtf, al- 
though the contract wa^ not made with htm, they rdied on the ' 
case of Westerdale & Dale, 7 T. Rep. 306. Citdd also l<^>iil. 
129. J?92. 3 Idem 491. • • 

The Court stopfped Mr. Milner, who warltbotit to reply. 

WjtSHIfiTG TbJ^, J, "ttiis' is an action of fntleSitaitis «#- 
tumfifiit against defendant, hi common form, fsr repaifaddnetD 
his vessel, at his request. To support it, the plaifttilF'miat 
prove the* anftumftsU of th^ defendant^ either expreesfy,* or lif 
such an implication as the law will Mse; that ia^tlnt tlieti^oilt 
was done, at the request of th6defendant,ol*of someotherper^ 
son who had authority to*'bind'.him, eith^' express ornnplMt 
from the nature of the transaction, THc printiple uponiffiidl 
the master may bind' his dhvners for repairs ^(C.TeMrtni frooi 
the general authority with which, fro ni' the* necessity of the case, 
lie is clothed ; and which nothing but proof that some other per- 
son was hitrusted to manage the concern, in tlie particular in- 
stance, and this known to the erMitor, c«A d^fttet. The cases 
of Chinnery ve. Blackburn, &nd Jacklon if»* Vemonj svppoit, 
(o ihe full extent, this doctrine. For A tniMtgageeX)f a vetMlf 
even before possession delivered, has^the f^gal. title ; and yillto 




I HI 1,1 

PhiUps w, Ledl^. 

16 not responsible for any repairs, nor entitled to any of the 
earnings of the vessel. If this be the case as to a mortgagee, 
th6 argument is afirtiarij in the case of an absolute vendee in 
possession, whatever defect there may be in his title. The 
question alwaps'must be, with whom was^ the contract made, 
and on irhose credit ? 

Tffte case of WestefMe tf^. d&i^f|| not ap|KMile tcr tUs. 
.For there. Dale and Wharibn were partnere ia.tlie vessel^ and, 
of course, bqth had an authority to bind the other. The in- 
sufficient recital of the certificate, in the conveyance from 
Dale to Wharton of his half, rendered the whole a«i>ullity, yn- 
der the particular {>r0vislon8 of the Nlivigati«n Laws of Eng- 
land'; afid i^oMnef Whavtom still rcUooid tb»4MithDrity, onc# 
mt«d in "Moiy fD bind hia partnet. . <Aiit in thia Q*fe».Vf|f 
neter Md mwtlnviiy cobind the defendant, befone the jMticluuin; 
fcAd" ^he a«le 'could not, in its natune, commuiitfM^ «Adb fk 
power to htm. The difiPerence hnliKStii tho IgMw of England 
on this pohits «n the Law .^f . the U^ittMl Bifktes, is striking. 
TiieinAct^irate recital of tho cwiificntni aMida Uiie deed there: 
l^re, ft mmy^ deprives the veB0c^.«f the piiailegoa of an Ameri- 
clfit boCtoMi. If a Mto vesMfi is asaignndk tanlbrmgnM'} the qoa* 
mi lf & ^aub i»tiie aame. If a o 9m0 i m§^jMmmij iJtm m^/iBj^ voict; 
Mit«lieir«8a«HalitMB%«»tefei«iH»oqi^ -jQ.thin^:««^thfiaaJlf 
vnM sibMil9f«»t'cMdllteMi.«r ^ttcuio^'; iiiA w$^ p^fecled 
h^deKverf of yoMSrioli. ff ke ajginameot Hiajt L#dlqy tfcould 
Mniti the enrolnieiit) created a li«n.«ti IteA p«|P*r; but tbn i]4» 
to the Vessel its«l( passed -faf the aak. In thia case, howeieri 
it appeiDVthat bntl»-4i»o Bikhmh imdomdami were delivered «p. 
* .• / v^(m%uU^ directed. 

■ N 

330 MMtN ilB L yAytA» 


Higbk fit. HopkJw. 

> . HiGBiE vi. HovkiiTB. 

If A loftn the note of a fhird petaon t9 By B mitffc use due fMi|pi>o>to le- 
fwver thefpnoiHii due by^ Mid if Ihe dekH a teU by the ii»ohB|Bcgr of 
ttic iM^cen «i^b]iB'« want of diligence^ B nwit pay tN anKrant of ik$ 
note to A. 

If the ai)swer to a bill, contain A deiual of the allegations; the pluntifrimiit 
support the statements in the bill, by testimony^ atid corrobonding dr- 

• * 

On ^e 3l«t AngfMMte defakUnt yiybaMm}pt»f pUn- 
MR for hmom WatMN/^ iMte to Love, fcr43ii.iMHwi» mim9* 
cd by Lo«e to pkuntiff, «Ki ibr loseph Wtitmm'mmalmtm' lOTf 
dolnv ; iHiMi the defendant promiMd te be MkcewMito fceli 
the plaintiff) wken req«ic«led. ^ . . 

The defenduik tin^ Wl ob the equity dlb oC tkia Cmn^ 
agumt the p ii dti g ^ iB «whidr he charged, that thaae Baiaa 
were merely pat iafta lib txraaeaakm for coUectian; *mii tf IhBi 
coald not be ID c e Uaatc' d y lie was to place tlieiB In tha4M|«f 
Aleicandna; Itel'lia dftdfilaae tlMaa thsrei and Om* tha plaii^ 
«lir roceired tie eviali Mtet hwl tinttka haAkdaliMfid M^tlii 
edMT to leaapli Watam. Me BlM-«MMi*a.aaHiif MH^drir 
Ian iir a negto, (loe,) sold >)r pMiitifflii«up»|p.wli»clik#li«l 
no tMe; and Mm. datetet, HopUns, was abliged to pi^p.e 
jodfneot against bias, §m Ids vataa, to tiia abave amounC 
^ The answencent ainad a pnaitifp darial atf idl jfceaa. all ngijip " ; 
and a repUcatiep 'hs,Ting been pat in^ the paeaent defendant took 
some depositioflh, to prore ttoionltency W James Wataon and 
his endorser, at the time their nqto (acane due ; also, to sup* 
port the allegation about the negra. 

It appei^vd, pretty cleart^m the eyidenee, and from aome 
letters, that the notes were loaned to Hopldna. TBat Joa^ 
Watson, as the agent of Oopttasi p«t iMto^M Bank of AleaEaH- 



APBiL TSKM, IMtf. c 331 

chia, the note of James Watson^ and withdrew it tbe^day before 
it became due. That in ten days after it became due, Hopkins, 
supposing it had be^ pud, gave Higbie an order for the 
amount, but when*he' applied at the bank, he ^ras iafermed that 
Joseph Watao* had withdrawn it. On the '3d December, one 
month after the date ef the order, Hopkins offered James Wat- 
son's pote to Higbie, wilich. he refti^iM. Some endence was 
taSLtth iR(hich left it a matter of doubt, whether Watson and his 
endorser were able to pay or not, when their note biiiaMit ^ne. 

HrJSHIJ^T^Mr S, informed the jury, thsft as to the note, 
it was ck^y a Ioan4o Hopkins, and he was bound to use rea- 
sonable difigetfiDeto rec^eive the money. If the amoMSH of the 
note had bean lost, by his failing to use such iilifs^(Wi| he mis 
iiallle te4ke 4)lakitiff. The jury were to weigh the «ad«Bce, 
an to* the solvency of the drawer and endorseis ^f^^^ Ae«Dle 
bMMi^Aie, and before it wss offered to Highib W^Hif^la 
r^ee^ed Information from the %ank, #air> ieato^ Watson had 
inth4ntw& the note, it does ndt appeAf akmtwt^j application 
WfM.tiifOS made for it. An offer to rwUfkfn it was made in a 
'nontk aftar, and refused, ^s to iIm vahM of the negro, the- 
<igaiinlitlieibiU,,thai immm^^M by llitWs l» HopkiM, 
Is 4enii4b Vhe s n ssi ti i , HmM) VMit bo oansMeiM ns true, U" 
less contradicted by^Mo wiMMls% ffid eteaniirtisfis to giro it 
a prepondei^mce. « * 

T^mtt for filakt^f. 


. i 

. o 

• ^ 

239 BsmmrLfAiaAt 

tm^mm^mm ,m ■■ ■ ^i^iM^M^— ^— «^^^»— i^— »%■ 

£s ptfte ,C«bNMu 

£x Parte Cabreba. 

A secretary, attached to the Spanish legation, is entitled to -the protection 
* of t)ie taws of nations, agpinst any civil or criminal prosecutioh : but, the 
Circuit Court ciinnot discharge him fW>nn criminal procewy iaaied under 
the iiiiiwuit^t of tlK State of Pennsylyania. 

The Courts of the United States, and the justices thereof are only author 
9|ed to i|su« wsj(ts of^habeaa carpus to piiawnecs in jatty undcTy Of by 
colour of tlie authority of the United States 4 or GonH^itted by some 
Court of the United States { or required to testify, in a cause depending 
in a Court of the United States. 

The juris^ction oTtlie Courts of the United States, is fimked; and, the faife- 
' tior Courts can ^Kercise it, onlf in cases in which It it uu wfc i ' i i ft ^ «A 

' JKCtflf CAigi|.a» 

ThftUw»«iLtii« Vajl^ ^P^ wluckpuaish those who wlfttti 4».|i|iy»f 
leges of a forc^gD^9^|pi|^% are eq/y^y^bligatoiy on the St^jte C(mx||h»s^ 
upon those of the United States;, and it is equally the duty of each^ to 
quash proceedings against any one having such privileges. 

The injured party may seek his redress, in either Court, againsT th^ i|(- 
gresslir ; or, lie ffiay f>ro*ccule, under the 26th section of th«lNr. * *• 

The €iroiiit€oQM wmot qiiMh pMssedlng* agHUist a pMm n < B hl M|# l 
, pending io aflMfr<;«iiit|.«ot^««i tte.CouK m Miy#«i|r aiitfilbv»«iik 
thcjuri«dMtiMi|flf^tly>j(i(pyii<ft^^i^^ ^ . 

Don JOSEPH DE C A'BREJIA, was brought up od a haUfi$ 
eor/iU9y ad subjiciendum awnrcfed, apme day* ago» directed to 
the keeper of the debtam' apartment of .the jail of the city and 
county of Philaflelphiar The vrit wi^ awarded upon the affi- 
davit of the patfy^ stating, ^a», at tiie time mi his com- 
mitment, in the characterof secretary,' ^taclied to the Spanish 
legation ; and had been committed^ by a warraal from the gor- 
vernor of this State, on the gixuind of a criminal charge. 

The return to the habeas cQrfius^ states^ that the petitionv 
is detained in the custody f4 the jaiii^ afousaid, by virtue of a 

e . 

AFRIL TI^M, Ub5. 5)S3 

ttJMBfcAa^ hi ■■■■■■! Ill ^iii^ 

Ex ptfte Cabren. 


watTttit fitMh the governor of Pennsyiratitai, dated the S7I1I of 
August, 1804; «« conenfilvnding him to srreftt the petkioneTi 
Don loseph de Cabrera, attached to the legation of Spate) near 
the Uaited Statea; ^(lie ia charged, on oath, wkh harfcig pre- 
sented to tlie Bank of ^eataayhrania, certain coMterfch checka, 
drawn in the name of the Marquis de Casa Yrujo, ministi&r of 
Inmost cathcflic majesty. By the law of naliona,'-' eontinues 
the warranty «<he (the said Cahrera,) is entitled to all the pri« 
Tllegea of one in the train of the minister; and, ihereioffe, ha 
may not be amenable to our laws ; yet, he may be secured wHh 
the consent of the nviAisteff tiH it shall be known whether hfS 
sovereign wiP ordor fimi to Bpahi for trial, oi' to be ddWered 
up to the justice of' this State. You will, therefore, fbmish 
him with a itNMD in the debtor's apastinent, aod Mm Saftljr 
keep, -nnSer * tHe 4lrecti^n% of the miniHer^ uHtil fertM^ or^ 

He was alto detained by virtue of » wvrrant, bearing date the * 
7t& September, 1804, iasued by M. Hiltegas, one of the city 
lAdermen, on the complytint of th6 cashier of the Bank, that a 
ftrged check, in the name of the said minister, h4d been pre- 
sdnted by a servant of the said Cabrera ;*M and it is stated, by 
Sbseph B. M-Kean,i6at the Spaniah oihiistsr has withdrawui 
^st thnroquest hf ths said Cahrei^,) the psotectian of the rigfata 
of embassy; and whsreaa said Cabrera is charged with havhig 
forged said check," the officer is soromanded to apprehend said 
Cabrerm, and to bring him before him, to ^answer the said com- 
plaiiit ; and to be ftirther dsalt with, according to law. 

It a|>peared, that a hUl of indidinent wasfound, in the Mayor's 
Court) kgainst thepetitloner, fofr this forgery; but, upon a re 
pTesentation of his character and prirfleges to &e Court, a 
noUe prosegui was entered. * ' ' 

To prove the iHegailty'of these proceedings, and the title of 
the petitioner to the iminonities of the law of nations, he pro- 
duced his commission ih»m the Court of Madrid, appointing 
him secretary, attached to Ike Spanish legation ; a certificate 





£x iMMite Cabrera. 


fropi the Spaniah WM»Ur, acknowleiiging Jbim as adjoint to 
the BecreUurjr of legation, appointed ud4& the denominatioD of 
gentleman amhaaaador, and entitled t^ the- protection of theJr^ 
law of utieo*^ also, a letter fiom the ^eqretary of Siafe, cer^ 
tifyingi that he had been recmediand Iteatei in. that chan^ter« 
' by the government of the United States. 

It vaa argne^ on the part of the petitioneri hj S« Levy^ 
and Mr. Heatly; that a secretary of legation, appointed bf 
bis sQvereigD, is entitled, equally with the minister himself to"^ 
the )i«etection of the law of nations; and, unlike the priTate 
secretary of the minister, who is ap^iointad l^ him, is not sub- 
ject to his control ; %Dd cannf»t be. depr^ed oC his priyileges, 
hy any act of the minister. Vatt. B. 4» «• 9. a. 123* He canoot 
divest himself of his. privileges, without the consent of his 
master, lb. c. s. s. i l. {ilart* Law of Nat. 3«0^h ▲ minister 
cannot be prosecuted criminally, or civilly, for a breach of the 
municipal laws. 4ImU.153. I Rob. Abr. 175. Molb^^ 139. 
1 Com. Dig. title* Amhaasader, L. B« 

To prove the power of this Court to relieve ; the ^nnwrttiar 
tioo, the 25tb section of the law to punish crimes, an4 the i3tb 
and 14th sections of the judicial law, were relied on« 

FeierMf J.^ gave a written opinion, in which he cendipnaajdv ' 
procee^ngs agamst tbe^ petitioner^ as iUs^ and unwaifa^*, 
s able; but is of opiniim, that we have not ju^Mticthm to ralieie 
m this way. ... 

HOf^/fJA^GT^DA;./:, after siaiiog. the <ase. The documents 
produced by the. petilioner, fuMy eatabliah* t^ my satiafitrtion ; 
that, previous to his arrest ^nd onnmitment, under the war* 
rants before mentioned, his claim ;to the character of adjoint 
secretary of the Spanish legation, was«vfU founded; and there 
is no evidence befoto the Court, that 1^ has since been remov* 
ed by his master. We must, therefiB^ consider him, as now 
entitled to^ that character.. If se, it. is not, and cannot be de- 
nie<l| but that he is u^er, thi^pii»|fc|ion.of the law of ni^ione ; 

APRIL TERM, 1805. 



Bs|Mrte Cabrenu 


and k not aiQeiiKtie t6' the tribunals of tMi country, ttpoft a . 
rn^a or criminal clii i n|Ki> 

Whether the'grMinl^ *«tated in the 'goremor's warranty be 
aofieieDt or nol^ to aaihoiitfi' hit detention,' xxvuSt the fbrdie^' 
order of the Minister of hi» tttalar be known, meed mt he dOi> 
caied; until we have first ascertained the power of thla^Courl 
toVellere him, or to pass a» opinion on that point. 

The question is not, whether Congress mit^fit, wittiia the 
tcfms of the Constitution, have conferred this powor on die 
Coorta of the Unked BttfSea, in cases of this nature ; but, have 
ihcf done it? For, -it hos been frequently decided, bf the 
judges of the S«|Mmse Cfyitvof the UaiCod States, thai the in- 
ferior Coufts- can ttunlBe jurisdiction in those eases tmlf, 
where it is ieu^ftart upon them by a laiT'of C ua^i'eww Tlie 
reaaon -of^^tkh^ ift ofafrkMia. The ogly Court, by nane* whoso 
jpriadietion Is ddined by tW Conitituiiony is the 'Supreme 
€^owt| 8ft^ thoMfwe, Congress has no power to restrain it in 
ttuaa cases where it is defined. - But, the re sidu um of the ju- 
dioud power is rested in such infeiior Courts, as Congress may, 
time to iime, ordain and establish^ Now, it follows, that 
Cdogii^ss has established such inferior. CouhSi, it ttes with 
4Mt body, to parcel out the judicial p o ws i a a m o n g s t them. In 
such naaener, aa may soem to them moat p so pur. Accordingly, 
we find that certain tnbunals, under the denomikiatien of Cir« 
cult Oautts, are authoiined to had^ and determine a claas of 
casi^ particularly pointed out, whilst ether caaea are assigned 
to Geerta, under a dilbrent MHne;*someiinMs enelusive of, and 
sometknes' conc«rf«ii|t w|dr Ifefo Circuit Gonrti. ^ 

The question then is, haa this Court jurkdiet&an of. the pre-, 
seut cause, by rirtneof any lawof Congfeaa,ea ds to discharge 
from confinement, any parscm, no mutter whit may be his cha* 
racter or pririlegesi cmnmitted by a warrant from the gorer- 
nor, or any judicial hsagtalaale, of thia State ? 

The cotmsel for the.pelitianer rely, for the establMinieDt of 
WT juKiadiction, upon the uth aaalM of the taW| entiaad^ 



£z pttte Cahittnir 

I ■ ^ 


.. • 

<« Ato Act fer the ^Miiftkment of ceitfti» «i«M«,. agMMt the 
United St«te».'' It declares, that all p w a c a K aMed out in asf 
of tli9 Cwwts of Iho' Unitod Sutas, or of aoff porticukr 8tote, 
or hf 9Bf jti4|e ot yaoike thereio^ rupf lit^y^ agaiaat tfao 
poraoa.or ^ifoolo ^ any piiUk wmiate^S or of Ma domoa^oa» 
ahoU ho doomed nttH aod roid ; and the next section deckuos, 
that th6 person aoing out the sanaoyvahall he puniahod, on oon- 
viffliQiiy with ino and imprisonment. 

Thb law ia not less ohligatory upon the State Coaits^ oftd 
SflMO jiidgosy than upon those of tho Unked SCatea. If a pahiic 
wnialor ho auod in the latter Courtit it wfll be the dutf of thoao 
Courts to ^aob the process, as atofttheo Wi4 If ho ho auod 
in the fciia r» Aat Court is o^oidly kmmti^ hy the same law^to 
gba tho si Witt doclMfu The injotodpofff «i^ idso have ro« 
drees agawt the aggfoasofv hi either Onut^- or 
hna mwlar the 26th ooodon of tho' law. 

B«it> where is tho hfir which gives to tho ^M^ CodMay m 
ri^u to qu«ah a-mwit fued out from a State Court, aaid tlMM 
depending against o puhKc minister ? If the Circuit Court^caft 
do this, why may net tho District Court do it ? For ttio eialwi of 
either ia equallf warranted hy the Constitution. B«t| tiio lotoy 
which miyl, ho our gwde, has given it to neither, it hi 
thing* to declaim tho process void ; hiit< another to Mfaia 
tribunal, wtiieh is to doside. The natnral tsihtaal is thot^ 
the process is depondisg ;* or whioh^ has the ouporintettding 
ecmtrol over such Gomns. 

Either Courttthot k^ tho Fedaiai C i>oii d t»or the State Cottrti 
might entertain itrMictMn ofaortirtaioaght torodraat dM in* 
|aif ) if the mioh pesidence of- the {MVty, and otiMr cireom- 
stances, whkh raspoot the geaeaal juriediction of thoao Couf^ 
reapectlrely, ho SHch as tho law rocftdresk Biit^ I appKhend, 
thtat neither Court can dictate totiio othei^ tho condoel it shaB 
pursue, or interfere in causes thg«o-dr|jiMi ding, ttiless properly 
brought hoibre it, under the provksana.of law. 

Wo oowo thwi to th»rimwd^c Tte(|oliliono» U dtiaiiied by 

A»H.TBM^IM<. %X 

' • . w 

▼irtue of the tipo WMVMitB before mentiflOMd. Caa-tUft Court 
take hhn, by force of a hmAea* corpus^ frofim the cualoijr of the 
taw of thh Stale, and set hhn at large ? ' 

The 1 3th sectioB of the judicial law, which was referred to, 
and relied Mpon, by thetsouDtel fof ^e petitiqpier, relates en-' 
tirely to the jurisdiction of the Supreme Court of the United 
States. ' ^ 

The I4th section, which was also relied upoot is applicable to 
thA ^lyistiiMi ttnd«r coftsiideration* It decktfe^ thi^ eU the 
Oottfis of the UniM States, as w^ as the juslioeft ikmpmt, 
fihail have power to issue writs of habeoB corpus^ pto f i de J that 
Bucli writs sh41 it) no casa extend to prisoners In jaff, unless 
where they are in custody under, or by colour of th^ authority 
of the United Suces, or are committed .far trial, l^imre scunp' 
Court of the same, or ^tre necessary to be brought in ta testiQi^ 
But, Don Joseph de Cabrera is a prisoner in jail, and k not in 
custo4y by auth6rity, and was not coapmitted for trial, before 
any Court of the United States ; neither is he wanted to testify 
in this Court. The consequence is, that, by the express in* 


junctions of the law, this writ of habea9 cor/ktit cannot extend 
to the present case. 

^Whether it would have been wise in Congress, to have vested 
in the national Courts, the power of deciding, in some way or 
aiAker, every national question, authorized by the Constitution ; 
is another poinjt. I am en^ of thoae, I confMs, Who have alwaya 
tlaought it would have been better, if the Legislature of the 
Vnion, in allotting to the aeveral Courts the jurisdiction they 
were to exercise^ had. occupied the whnie ground marked out 

by the Constitution ; butt I am not one of those, who think it a 
*eommeiidid>le quality in a judge, ta enlarge^ by construction, 

the sphere of his Jurisdictien : that of the Federal Courts is of 

a limited nature, and cannot be extended beyond the grant. 
Whether the petitioner may, or ought to be relieved, in the 

Courts of this State, it would be improper in me to say. It is 

cleari tbait> upm ttii jHitihl>» i«» ci#po> reliei« h^A. 

The prisoner vas remanded. 



• • 

Action, by ihfi owner of a yeMel, against the defendant^ for Iiaying put on 
board of her, without the knowledge of the owner, and against the re* 
guhtions of Havana, a quantity of silver, which occanoned the seizure 
and detention of the veisd. HeU, that the defendant is liable to answer 
tetho d«M^pes anatiaiied by the i^hiatift if they wwe oocanoaed bf 

Quen, whethcTj in any caae, the protest of the ciq;»tain is adwissihle in evi- 

Jl HIS was an action brought by the plsdntifiV oni^er of the 
s)^ip HopC} against the defendant^ ibr putting on board of the 
ship) at th^ Havana, a quantity of dollars, without the know- 
ledge, and against the orders of the captain given to his officers ; 
whereby she was detained, for a long time, by the Spanish offi- 
cers, in order to be searched. 

Mr. Levy offered in evidence, the protest of the captain of 
the Hope ; and, to prove that this was always admitted as evi- 
dence in the Courts of this State, he cited, 1 Dall. 1 . 6. 10. 

Mr. Condie mentioned another case, similar to these : also, 


one in the Court of Common Pleas, where an action was brought 
for the deviation of the captain, (n) He cited also other cases, 
to show some of the exceptions made to the general ruler of 

It was opposed by Messrs. IngersoU and W. Tilghman, as 
being contrary to the general rules of evidence, and as not be- 
ing admitted in England. 

Peter9^ /., was of opinion, that, as a general rule, it ought not 
to be admitted ; that there might be 4:ajies, where there might 
b^ an exception, but this was not one. 

(c) r T. Bep. 158. Hit piplwt f gWni m eiJdttce. 

iGnn.icswi» ii« 



^p99k».m. Wett 

■' " ■<' 


FF2ifA^/any /f o|Mf fired, that he bf bp sojMoa appfonrtdoC 
admitting aiicli ejideiic«» Tiiat, if Wf loag a»d ttnifem deci- 
siona of the State Cdurta bad been produced, abowiag tiM prin- 
ciple,to be otberwtaa aetlledtlie ahould ktM felt himaelf perplex- 
ed. But, ail the caiea cited) haye reiatfri ta actioaa en policiea of 
insurance; where it was not eamy to- perceive clearly any in- 
terest in the captain. But, this is ka action of tort, for an 
injury sustained by the plaintiff, for which the captain is liable; 
unless he can make out such an excuse for himself^ and fix tl^ 
wrong on the jdefendant, so as to enable the plaintiff to rccoip;^ 
against him* No train of decbions has been pnnliiced or mea- 
tionedy in sMcb « case.,' He was of opuiion, this protest is^ in- 
admissible eTidence. 

WA^ni^GTOJ^^ J. The.^eclavat]an is a specjU actioB 
on tiie case, apd states the seiaure, search, and detention of 
the vessel? as the consequence of tte defiendattt's puttmg oa 
board this money without the permiaaion of the captain. It 
certainly was an unlawful act, and the defendant is liable to pay 
all thadafioagas, which the plaioliff can prawe to your satiafec- 
tioqi to have resulted to him from this act. But, it does not 
follow, that, because the act was unlawful, the . defendant is 
Qahle for all the damages sust^ed |)y the plaintiff; unless the 
adt was the occasion of the damage. As, suppose the 400 dol« 
lars.put on board by defendant, had not been found ; or it ap« 
pe^, from other evidence, liiat not thia» lyut some other thing 
was the cause. Upoa thLa^ point, ^ parlies are at issue. The 
plaintiff) to- prove the injury sustained to have arisen from this 
act, relies upon the following circumstances : that, the search 


commenced the day after it wsis put on board. The answer to 
this, is ; that the .vessel was to have aailed the next day. That • 
the money was found conceded; and, therefore, was calculated 
to excite -suspicions, that a search would discover more hidden 
treasure in other parts of the ship : that, when 136 doUarsi were . 
found in the steward's chcit, the officers declared, that they 





Sparks iw. West 

irould r«iloi%'it, if tio moi^ wn found f tlM% cfter finding the 
mtthdf, pdt on hpmi, hj iefendanty tliey to/ok the moisel to he 
searched^ • ' ' 

B^t icflt, this ^ow tyntf to shoMr, that this mQ'ney was poa- 
tibly the ctMLfte of tlie •etif'ch and dtteiitiony but not of the 
aoziife. ' ' ' 

In ofjrposition-to thea^ eircuntatances, the defendant relies 
upon the Mlowang : the superior Ytlue of the outward^ to the 
Imneirard eai^; the number of passengers to retuiQ in die 
teasel $ the groiund on which the resael fras moored, which a 
witneas has said, was best calcuhited for smuggling; were aH 
caleulsted tf> excite suspicions^ in' the Spanish officers, that 
there were contraband goods on board. They, in Btct, found 
noney and other things in the steward's chest, wUeh they seized 
9Bd detained. Rut, abore My the certificate of the Spanish offi- 
eefa, who nade the selimpe and search, and which they left dki 
hoard as a kind^of Aroce«'t;^r6a/, is relied upon to show, not 
only that this motiey was not the cause of the seizure, but that 
ft was not the cause of the seardi or detention. 

They state, that hsi^ng received information of ti^any* thou- 
sand doHars being on hoard the vessel, they had been hidtictd 
to make the search ; that they found 536 dollars, (viz. tfke'4O0 

dollars put on .board by the defendant, and the 196 doVhjm 


found in the steward's chest,) and some and that, in 

consequence of this infoi^natiOD, and the finding of these aMi** 
des, they had cauaedthe ressel 1x> be unloaded, and searched.' 

Thu is a summary of the evidtBce, and of (he argumems of 
counael. I h«ve stated the legal pj4nciple, by which you are 
to be gqiremed. You wDl say, whss damages, if any, the plain- 
tiif is entitled to. * - . \ ' 

• Verdict far 1,095 dollars and 98 tent^. 

(^Thc claim vfUBfor ufiivards (tf4>000 dollars,) 


Beak M. Ftfllh^tal^ . , 

• -. 

Bbaie t^9. Pettit k Bayard. 

I ■ 

Action on • policy of inounince. 

A certificate giren by a supra-cargo, upon his Tetufn from iSie voya^ in- 
jored; andwho at the time it v offered, it deadi i»1aufanSiBibleto pfore 
^pJbufltiff'aiBterait in tbetttura cargo. BfvidiMe^aimot ^ fi?a»«9 
irrTji TFhit thr npni yugit fa|rt dnrlNrtl ttb ihii giiij|rrt, , 

In an open poUcy«^(s plfuntlfi* ouuit pgow bia iotcv^st, aadlbe nifm oi bit 
pTt^erty ; or b< cannot recover. The bill of ladil^ of the. outward caiyot 
is no proof of tbe interest of the plaintiff in the bomewani cargo. 

Quere, whether/ when at the thne of an offer to abandon^ the property watf 
fefltoQBd; dkfvniredcanreco'veF'fbratotrftoss? ' 

Aim €ttf#iHinA on tbo rMMm cargo* T^ma/lmMt mtf^mm 
dtfvM aalb* Tlie Vessel took4» a retuVncMrgo 9 was 'e»pt«r«4 
itkd caiftii into Xainttica; atid Mbelled. Vfae iiess t% and most 
of tlie >i>§<» ims restored, on stipalatiofi m answer the appeal ; 
md tlMi vesMl sffrlved, with the oaffo, ki «albt|^ «t Norfolk. 
As stop A* titf plfontiff had aetii^ of tb« eapcvto,* Ik gave no* 
itoiMo alMim ; tet at tlMt tMo tte Neatfj Mi> boin restot^, 
iM%«si««l iit mum lomo; b«l tMs ftoliMMWfi to Hie plaimyt 
Tie mi of ladteg, l»P6iee^ or an «ceoiiiit «f sates of the retom 
eaf^ were not fttfimcti^f nor dU ^ k^^poaf^tbat any had eTor 
existed* The supercargo, after his return, gave a certificate, 
on iOptht that he had aoM ^ hom m am t t A oorgo, hethntHSt totho 
^ifttMfj and inveslod 4ito H ii aie M m return cargo. Bbl Ite 
Cowt lefiised t4 let fMi'tioMitoate be read, or hear ^ri^^t^ of 
what tbe superc&rgo, (bow dM!,) had declared in his Tife time, 
on this subjoct. Th^ ndtice to abandon was given on the 61(1 
of Mayi and tbe ca§|aiD!s protest, to prove tbe loss, was sent 
to tte iin4«rwr&ecs tfM^,dlh o£ Novembor, at which tiose the 
v(ssacl.ted airtyod at HUiMk. 

H h . 

a« -^ENM&YiyAHIA^ 


Meaif^ m, Peilit et aL 

ItgcffsoU, fin* tlie drfbodintSy objected le tte N e fii ; Irt^ 
lie mwa , at the ihm the ahftndoaaieQt was msd^ no proof of 
loss or property wee aade; 3d, iMcause, at thatt tnnoKtbe Tes- 


ael was la fact in mttitf, 3d. No proof of jftropatf and Yalae. 

WASHiJfO TOJ^ J. ehmrg(Dd the JQfjr. This poticy is made 
in the name of one LeamXf for, snd on account of all persons* 
concerned in th4L cargo. The pkiptiff states himself to have 
hemi owner «»f a pwi of the return carigof and if so» it is dear 
liMt he has a rigkt to sue. B«t pmof of fait*inicrest, andf (the 
^olkf being open,) of the Tskte of it, must be made out to your 
sadsfaction. ' It is of ^the very essence of this action, that he 
prove his interest. The protest of the captun is inapplicable 
' to this point. The bill oif bKi^t fer^he outward pirgOf is no 
proof that th^e pli^ntiff was intatested in the return cargo. The 
•videiif:e moai rdted upan is, a pbpi^ 4^vei«d by the.4cteA* 
asis to Ihe plailiffi in which.they state, thai, n^ pmoi id pts^ 
perty had been laid before thsns, but the decMadM^^^a oafiht 
of the anprtfeargfi $ §tt ythich sntfson they refaso to paf • Nov 
tbia paper does not atakc that declaration evi4sBca» «feick*wo 
have declavod it not evW^nce ; particularly aa t)M defiBndsota 
state it as the gtonad of their refosal. 

Shottldiha |yay n#ih# aatisfind with, the fM^ooC of .pix»pec||^ 
they will find for the.<Mendinift. tf otherwiae» they sviUfipi^ 
snbject lo-the opiman of the Co«rt, in a cons <p.he statM^aoM , 
tO' enable us t6 dedde more delibaratdly, the*q^eatioo, (m) who* 

» ■ t 

(#) Th»^aes<dii is more liitwh lias let jwt iiippesediU liHahi|lk|K 
4M^ MV%dMitif the sMured it Ihs 4i9ia^ MMm^ 
brfo^ he has abandoned, recdvefsdvirfshft^tl^|fc%yqpcfty>n^ 
he cwiftot abandon; became he eta pidysl^Brinp »k^ it h a total hmh^ and^ 
h^ knows it to be fo ; not after he knows of ^he reoeveiy. - "fke iule» he 
myu, tBy that if the things inaured be recovered before any Iom b paid, the 
toiared nny daim for a total or psrM kae^'^aGcoida^ ta tiie final event f 
tint iti aeooidini^ to the stale of the case at file tbne he mdeea hb claim. 

In the caws of HamUtoa m. tftidrr, 3 Bur. ItSg^ Lsad Mwi^iW m/K 


•• « 

4PRIL'T£BM,1805. MS 

litei*, iinM^ M ibirettmstanoHof tthb taae, the planiliff wqM 
abandon,^ and go Ibr a toUlloiB. '' ' ' ** 

The plaintiff agreed to be called^ u soon as the jury retumedf 
to, and suffered a nonsuit. 

4 • 



"ttW' question is, whether the|:^biBtifr, who at the thne of his acStkm brouglity 
ft die time of his offer to ahandon, and at the time of hi^ beings first apprized 
of the accident, had only snstuned a partial ks^ ought to recover as Ibr a 
total one f^ It is repugnant to recover as for a totd loss, when the final 
event has proved it only an aver^pe loss. 

*'The assured cannol^ elect befoiie advice of ^lossf and if that ai^oe 
shows the peril Si be ovd^ he dmnet elect at aB ; te he caimot diandon» 
when the thinif is safe.'* Ilie pfeseut is the first sdtempt that has been 
^lade to chaiye the insurer as for a total loss, upon an interest policy, after 
the thing jvas secoveved. ^.''If the tiung in iru^ be safe^ no aitifidal rea- 
Moiaf Mil .et H op for . total loM." 

** fB case the ship be takep» the insured may sbaodnn ; provided the cap- 
titfe, qr tiie total liii ocpssiqacd hereby, wndHmia the rtwgugahamimiing ' 
anri iMi^^ij ihe ^stiea.'* He^i«iMa]aysdow»|hepiiMiplei»4efttt»»w 
lag words: ^ tlwt^ ^sintiflT can m^ fecover aa luAms^Mlj ^ aeeofdhig to' 
Ihe nature of his «ase» at the time «f Hie action hiough^ sr at most, at the 
tine of 1^ ofiTer to abandon." I give no opinion hew* it would be in case 
the ship and goods were restored in safety, befveen the offer to abandon« 
and the action broiigfat, or between the commencement of the attion and 
dw vefdict.'' Here the event bad ftz^ the loss to be an avera^ oiSly, be- 

ef siy a— idsiit. 

BHktp. M5» ssjFs^ that It iMf bo uilis>u i ftaa aoccus, that in order to 

cstille 4ie plaintifir to teoover te a tdtel loss; it nqit continue total at tho 

time the offer ia made to abandon, at the time the action is brought, or at 

the time Of the payment of the money. 

From what is said above, it is cletf, that if at the time of ttie oflbr to aban- 

4(m» the assured had ntHcB ct^bt recoteiy, he cannot abaiidba. But the 

Wf if at that €mm Ae piaputj was in fiu:t recovered, and in safety', 

^aloMSraiatka'aMiMdi' can he abandon, if afterwards the ftctap- 

In the ease df *Qois «t. Withen^ and Hamilton st. Ifindez, the assured 
khew of the fecovdy before his'oiHer to abandon. But the Judge, through 
cut, ia laying down principles, speaks *of the fiwit of recovety, belbre actioB 
broogfat, cr efier to abandon. f^wlMiIAoiddciaieUe^thatifbdlbie 


M4 l>ENN8YLVAjaA,i 

B«de m, Pettit etal. 

vt0 in ipifefy» th« ■MUfffd can onljr lecorvr as for a ptttial lots. B«t lup- 
ypie at the tbiic of the ofbr to ahanHnn, she was still detsined^ by vittue of 
the capture ; but liberated beforfe action brought ? This b the questioo 
wfaidi Lord Mansfield says he does not mean to decide. But T tHink it 
clfitflj proves^ that the question depends upon the hd^ not upon, the s»^ 
sored having or not having notice of it Indeed, I cannot see whj that cir- 
OUDStSfice should make an^ '<tfiFerence in the principle, which certainly is 
ntended to prerent ^ los^ partial in its asitore, from being converted into a 

hot Mardisfl at. Dehlware Insursnce Cobpaay, decided in this Court, K^a 
subse<|iient ses£on, and affinned in the Supreme Court, 4 Cnmch, 202, it 
was decid^; that the right tx> abandon depends on the state of the fiicf, at 
the time of the offer, aod not the state of the information received. 


* . » t- . 


» • 


> SH4VTU0H' Im^'MaLST. 

Aa «fBcer of a public uned ve«0d oC the VvHed SUIoi» who mtd« a flcazurd 
of a neutral Tessel on the high 8ea% may excuse himseUi bj showing pro- 
bable cauae for having made it ; but the ground of excuse should be very 
strong«-*-strong^ than in case of a capture of a neutral, by a bellig^erant. 

If nlch an excuse is made oot^ he is not Bablcp for consequential damages ; 
bttt <i li fc f w1 i ft, hcis li y ik l l sf lJtdrtigeswtfchhaveftiigw^flitfsaianfei 

What will b9 deemed prciMIe cause of ieizuK. ^ - 

THtt WW •■ iW^ ^f^Mtt a s«itto€0 «f thtt District CmUs 

Tke iq>1irifap» fiUd ir JiM IB th»t C#«vt, al^ 
m mr ^Miy* »ttif>liip< MbiMi •ilte kfa* ef JDcuMil^ 
and rrniipm ai St. ThomaMB^d tiw^ nf liaMprcaiort 4ft 
AmerioMiteH'ircMelt whiok Im had kmmjid^ put^teaed frwa 
the ow»cr^ iftVMpMPeaihar 17M ;. 4«t in M ay.UMis put mn ha a td 
of har a'Ma^fas^aftd aant her to jM^naaip^ «r Pvtt-aa Princet i» 
Oe jriandnf Jk. Pomjpf ^ dwftigBed toahe laptah, end pie«^ 
paMpiwMWHJids^ywggwIfclr aaitfinlily Tkayon the l4th 
ef May» n i ii in a ag i^p paa| eCia^»einai> aha wm act wkh by 
ii^aie Milir 0Mi^MKhirii«llM IMkttdSiitea* wnaad iinrt^il 

^^|Hp^eei^pV| ^Mv^se^^T • ^i^^^Bv^^^n^PWVVa ^w v^i^eiv ^F^vaBn^sm^ ^p^^p^^p^ ^^^^^^^^^p t v^^^virv 

lite 8npariineBt» end* eairiaMl aMp» «M|^et»heifiBg proeeadiA 
la aiyudicaftien; and ppaya a mmnMm te^aompei him to da^ao. 
If aley appean, and MMawa.tinder protests silmili .thf iianpuniei 
hiat statest that the Mneaainr being an Avmtkm eegiatered 
aewdi -owned aii4>rMpiairad bj citisens residing in Americh^ 
mfk^ bf$m MlknnnBy'and at the time of the seianasrtfhn wns 
proceedfcg dhiaetipi erfiMh some intermediate port* to Jaqne- 
melt witfw tte <api»dinrie» of -f ganoB» and no^ to Port an 

_ • 






SbnttMck w. IfMiey. 

ckisen of Cuofitcticat, and bad never ezpttrtated faii^df. 
That under all these auapicious circumstances, he toolL her as 
violating th^ noo-intercourse law, and sent her» with an officer 
and men, to captain Tal^S 4iie comi^ander on that sttttlniy 
lying M Cat>e Fivn^obf for his ordnrs. Six hours after she left 
the Experiment; she was captured bj a British privateer, car- 
ried into Jamaicaf lib^ed as1>elDngtn^ to France or Spain, and 
condemned. Of this, the'libellant had notice; and hu captain in- 
terposed a claim; but the vessel and cargoi (^xcepit the captain^ 
part,) was condemn^. An i^pefd^ was pntf ed, but waa after- 
wards abandoned. 

The replication gim the prooft of tiie natoraBsaftion of 
Mattuck in 1789 or 1790; That the original deatinatien was 
to Port au Prince, and so w#it tim Ipstructions; but just below 
aailmgi verbal otdertf wore given to touch at Jai|i|caiel« That 
the libellai^ waa the siaoMHriMr of tie Mercasoi^ iftat* dto waa 
aavigirted as a real DaAish veaaak; she had on h«ird, when 
salaed, tka king's passport, a co^iicate of measateaieBt, mus*' 
ler-foU, a bill «f satey a tar^he^alirief of tfap caytaift, clearance, 
iiwroico» and bffl of I wI M^, duly attested as to Hi aowHei K dp and 
nantrali^r'theiWDf; «ie capMiDea tefl|iMktiQn% and. the* eetttfl* 
eate on oilfli of *swsAiy r e apo tt iM e i aaawB iMO ta of the island of 
at. Thoiaa# astesting the citin«nahip tf iff r&fHitmm. 

Mt. Dapobooao, fo ska appdlant, iMtosui^ 1st. Tlmt tiio 
saptmi was not #iifl» m to rsAisr M a l ay a dmtmjide posseasetr 
bocaase, beingf yiopetif dtinuasiisii» and uo circmnaianorto 
i sn d s B i^r aoi^pected^ he had no ii§m to oapture her. But If 
ho did take her, is w'as his duty to oflli kar'launediatelf to tko 
United States, In* adjudication ; and wt to Cape Francois, ovf 
Of hifit oourse to the United States,«to bo fiaasiiiwtf bf Av- 
commodore. 8ee 4 vol. Laws United Ssates; IM. 

3d. . £vett il he wsrea kona-JUe^poauntit^ M has iMbMsd 
tke iKiotecdon of that.ckatactea, by not rasiating or j^maBftttac** 
iiif agaiuBi *6 ^fgrnrnt bf tte J^^Mshi and- Iqr Ml d Bi rwwIs 

^ » 




afaattuck «t. MLey* 


«lMUftv«i|ipB tadefiBDd tbp pwywitytn-<be Court ef Attjiiwl 
t|^ 4 TMh^ ticp. 380. -^ 

3cl.' TlMit the capture bf llir Britith^was like sceoaequeiice 
eOttfc illegal conduct, and he.ip IWoie ler «tt Qe^ee ^ ueat daoMp 
OS. 1 Rok'Rfl^. 78. the <aM «f the^ ft e t i ey . 

4du The aiaateiice ia JUKnca ie not concliint«.{ But If it be, 
the capture by Maley wae ittepd: as the Mfpcator, it it 
admittedy waa unanned. 

5th. The cbiiin at Jam^G% put^iahp the captain of the 
llercator^ fnea net bar the appettantV reeiedf « 9 Rob. Rqp. 

The principal anaWf by DaUas, bw appeUant, was, that the 
destaaaiaDa of Xhe veMel<liieriag 6emn the wnuen inttruotiflaa 
^ to the'caplaia^ the fcrmer citiaeaihip of Shattuck in thia eeuQ^ 
iRyr the inatraetieoB to the^Aaira ef (tihe American aavyi 
^ited Malay yi sen<AB« her in *%r eyjihwiion. That il 
daea not tipear that the loaikptoeeedad fkottJua haviag done Mi 

WjiSMi/^TOAT^ J. PiefiottB to the inqairy, wlM^ier the 
appeUant haaekatm auifeieat aoaaopa ta euaaa him te hamg 
captvrad the M|pRcator, and toalMtt di^ee hb reapa^biliiy 
for haviag done ao eatewl^i' there is a pailiaiiaary ^aaattea^ 

It My jrhethar the eaaHbaader af 
Teaarif iathe aaecutiea of a lav ef Ida cotm* 
taptctareacaae hiaanif Jw Ite ▼ielatba <^ ^ tighta of olfcai 
aetiaiiij on the high aeaai hf idinwiny mgtcmat faound la tiv^ 
pect, that the Teaael thut captured, came wkhia the scope ef 
the law, and of his authpri^ ^ In other amrds, whmPMr proba' 
ble cause, to any and to what extent, will excuse^ him, if the 
eaeat ahould prove, that he judged wrong upon the fact which 
ha has to decsie I TUa* question was very much ajritated i» 
4m caaee of ^e ChigFOiiag Betsey, and Flying Fish, ia the 
napre^afr Gaaii; but did not receive a pas^ve decision by the 
Court. . . ^ ^ . ' - 

Tba rawmpa law dfoctpaa^te to toeta, cainwgiied by'y fc iea 

• r 



SlMttuck «fc UMkf. 

act at their peril ; and if they ^7 mistake act wfi*ig»4i» jp > i f a 
hut §9m e«ae» in wkioh tkejr jnn be excused. iNtf -a fMaoa 
mmf exist Ibr Uiia severity, iircffes happeniBf^oo IMI^ vJiieh 
does not exist wheiv vinilar OM«a pccur at see* !• tie fimHH^ 
tlie OMns of olMettiang corrietiaki^ation are ttorev^tUk the / ) 
power of tlHi offieer $ and Hv oAoririnayt >b meet c«se% if ta 
doubts as to tiM fact^ iMist vpon being ttdemoiiied ^ 4te 
paltf. But at see iMs <JaiiMt.te 40»e. • 

Hie Act of^ C sw gro ss, pmhiUtkig She f^tenmnm of tiie 
American nerchants pllh ihe depcandencies of France* const- 
#ired stridiy as a munieipal tcguladbn, onconnected wi A var; 
mie Wnding upon our ^itivons^ whether 'iHlhia the limatiaof the 
bailed States, <Mr at sea. These^'C^iCersy whn weis m^anf «saA* , 
aer charged with iAm eaeontisB mi ttet law* were beand tnobeir 
H. The Coarcs o( this f onntry) when casea^ arising unier k 
are, broufht teftireHMiftii must dedMe in-anek m ipuniw as to 
give effect to the iaw ; whatever ikay be the hardship which 
•oeh deoiskms m^y impose upoa.Hfee subjects hijMlide^ations. 

The law auMnavand aAir armed vessels to aMb and examioe 
any vessel of ite Vnilai ^ifatj on the htgh^^^paH} tlhich there 
may bn reason to snspect tn be engHied in n«S% q^ntrary to 
the psnvMans of that law; .4SmI if it ahnntdMMMtr thai -she 
was sailfcy sa any part wHhiD the tesmtmy oi^-ik^* Knneh 
I fc spu bUcf o Bptr a r y ta tinn law Hil« eoitamnder of ^^n^jrassal 
was tn seise) and sen4 ihe vwsael sn ga gid in snok illkii ssadsi 
m the nearest poM tn the United liutes. 

EvHflNht incident to the pow^bet^ granted, and without 
which it cottid not he executed, ia impliedly granted. Bat as 
the character of a vessel at sea, could dot alwajrs be discovevwd 
kat by her papers; it necessarily faHn w a d , that the cnmmandeaa 
of the armed vessels of the United Stiites, migbtv Mder thn 
Sfttction of this law, stop the vessels af other aemmf *nM9din% 
in eider to make this examination ; lor otherwise, it would b^ 
imp as sib le p^ snfr whether nhe jrsa not a vem^ hsiwiging to • 

AI^lflL TERM, 1805. .«4* 

■BtapMBissBaii^a r fv . * - ' ■ ■■ 

'XtneHc«tl MKi^, engaged ih this illicit trade. Thb ri^t ot 
teaMinillon) essen^allf implies the right of judging, upon the 
^fldefice exhibited to thetny whether the character asauined 
#fet real di> cdferfed. T6 hoM life ofllcer responsible, accord'^ 
ttg to th6 eyen{, would be to TeMef the law nugatory ; sincii 
Aw men would be found bold enough to insure the eventual 
Miditf t>f his judgmeht, howerer 9ftr<m^ he might suppose th^ 
groundfr of it to *be. But to excuse littn firyra damages, if hi 
should^ in the exetutkni of thia litnited-. authority, violate the 
rights of others ; he must show such reasons as were sufficient 
to warrimt a prudent, kiteliigent, and cautious man, in drawing 
the same conclusions. This is what is called probable cause ; 
which ttccuses a belligerant for an unauthorized seixure of a 
^leutral ressei ; Which be hat reason to believe to be, in feet, afi 
tntmjj or engaged in a tratle* which renders her liable to con* 
fiscation. The {Mnciple of the two cases is the same ; though 
the fticts which would affoM probable cause in one case, would 
not in another. Tor instance : vessels belonging to neutral 
States, must not only act so as to entitle them to the protection 
of that character^ but they must carry with them the docu- 
ments necessary to satisfy afty 6f the belTigerent powers, who 
may demand k, that she is neutral. If this be not done, the 
neutral cannot comph&n, that he is arrested on his voyage, and 
exposed to ilf ^e^'loaaea which ibay result from an examination 
imo the htt of his neutrality, in the Courts of the captor. But 
aa she is uMer no obligl^tion to prove her neutrality to anotdoi^ 
neutnl nation, it wouM be no excuse for her capture, by such 
neutral nadon, that she did not exhibit Ithe ^ame proofs as a 
belMgerant might have requiQpd. Btit, if, aa in cases within the 
noB^intercourse law, thdre be reasons to suspect the vessel to 
be the property of Americms, and engaged in a trade prohibit- 
0^' by the \vwi of the Uhited States; it would be incumbent 
4th the commander of such vessel, to free himself from thoikf 
Mspicions; ahd if the ^officer of the American armed vess^f, 




Shattucli; t». Maley. 



kad reasoos) apparently well foundod* to watraAt 4lie beHeijtkm 
abe came within the law, which he was bound^to execute^ i 
should hold him excused, fiut these reasooaousht to be vecy 
stropgi to entitle him tp the cfaiuracter of 4K:t»g bona Jid^i, 
a character which ought moat undoubtedly to protect him • 
against any consequential damagesy'provided tbeyare not pr»* 
duced by any subsequent misootiduct of his own, oi; of those 
intrusted by htm with tiie property* < 

These bein|[ the principles which ougM to govern this case, 
liow do they apply to it ? 

The Mercator, when, diet with at tfea, was found poaaessed of 
every necessary document to prove her to be the property of a 
Danish subject, tind employed in a lawful commeroef not only 
in relation to the American goyernment) but to the belligerenl 
powers. I cannot discern, in the history of this traasactloiny a 
single circumstance, which ought to have evcited a suspicion, 
that she was not, ii| foct, what she appeared to be. The certifi- 
cate found on board, attested by the oaths of respectable men 
at St. Thomas, fully establishei the tact that Sttiattuck was a 
subject of his Danish majesty. The bill of sale proved the vessel 
to be Danish, not American prop^erty.^ The invoice and bill of 
lading afforded the usual and proper evidence of the voyage she 
was pursuing, and which she was auOiortied to pursue. These 
facts being estaiblished, what was it t» this go^emoent^ whether 
sh^ was sa9ing to a port different fimn.that mentioned in the 
written Ihstructions \ The circumstaiwe of the captain's ap^ 
pearing to be i Freochman, whidi haa -been mentkmed as suf- 
ficient to excite sus^elon, was of itself calculated to dispel it. 
For, is it likely that an American />wner, engaged in this trade, 
would intrust his property to a French paptain and conaignee, 
in a vessel navigated entirely by fiSreigners ? 

In short, I cannot imagine a case so totally destituu of the 
means of being defended, as the present. Without inquisios 
into the subsequent conduct of the appellee, it is sufficient to 

« .• 


• r 

APRIL TERM, 1805. 



Shattnck w. Mkj. 


hiv A 

myj th^t the tiMig the Mercator out of her way^ was an un* 
lawfal act, and midcea captain Maley aiiawerable for M the da- 
mages which have accmed. 
This daaiyan was lArmed in the Supreme Court, 3 Craitfcb, 

• • • 


• . • 

I • 


• » 

* • 

9ii PliNNSYl.VAMlA, 

■m 1. ■ ^j^ ^ 1 ■ ■ ■ . » * ■ I 

»^ ♦ 

Charles Jolly vs, B. Blanchard. 

The Court vill not set askle th^ report of icfefeM, nerdy becfttise they 

migiit not have dkmwn the^ntfi^ ooneln^MiB froiD the evidence, wbioh the 

feferees hftve dedu^e^i * 
An agent or faotor, whais Ofdered by hU principal to ship goods in bis p<»- 

seasfon, has no right to retain more than enough to seoue any lien he 

may have upon the g«M)ds. 
He may do this, and obey the order to ship tlie balance ; or, ke may ship 

tile whole of the goods, consigmng them to a third person, with arders to 

deliver tliem to the owner, am pigrnmt of the sum due to him. 
If he iptains the wholo, because of a li«i fat a small ttsatf and any horn M- 

lows lua breach of Qvd6c% ke will, be linble.forth^i 

JL HIS cause havi^f been referred to Rrbitrators^ uoder a rule 
of this Court, and a report being made ; Duptqnceau, for the 
defendant, moved to set it aside ; becayse, tbe arbilrators bad 
manifestly erred, both in matter of law and &ct; in awarding to 
the plaintiff l/)09 dollars, the yalue of a quantity .of goods, 
consigned by the plaintiff to the deGendani in Su Domingo ; 
upon the principle, that be bs^ retained them after he had re- 
ceived oaders to send then^ back, ia, opmequence of vliicb, 
they were- seized «Ad destroyed, by the brigands: wbei;eas tke 
orders he received werq not pecemptocy, but left the defendant 
at liberty to return, or ret«jin» the goods, as he pleased ; and, in- 
dependent of this, the def^^dant bad made advances for the 
plaintiff, to the amount of about 400 dollars, which gave him a 
lien, of which he could not be deprived, or blamed for not 

The arbitrators were examined, as to the grounds of thpir 
decision; who stated, that thejr were of opinion, that the dy* 
finidant ought to have sent badt the goods as sooa as bip ye- 

\ V 

• ; 

•. • , 

APBIIi TERM, ims. 




^ WIW^>»W> 

Ml^F ffpw ttaa€hi\|d» 

0tfM the phgw)|P» »»to»| Mri tbat it MPtt in hk pQfrer to do 
fo ; t||»lf tt|e eiity rcAMn «Migned ^ the dotaidtat befi»re 
t|l«flfi» far ooi li%mg MBQt bmck the g(Mid«, nAe his liezu Bat, 
th^ arbitmlom thought, that h^ iB%ht htve retsiMd lenougb ti^ 
ttitiafy^hiic «dr«iKWii and ibilM kave.retvvBed >the oAen, or 
9tit them bei» to hk nwitfjmuigatm^^Ui be delivered to the 
pkiQtiff, m beiof Miafied^AMr hia adwiposv. XjKe arhitnttors 
■aet tees 4r l»w timee, imxs^mtkft^ ttai^ 4e the isvestiga*. 
tk»i» ead alwer» bed tiH» fdirtiee b«ttre JUktm^ Thejr eUomd 
tho'i^MntaC th^TftM tf tke goedfi IttMy-^ )Hid thcf been xti- 
tumMi eitor deductiiig ihsurm^e' and all expensee. Thef 
9^§iM^, thfit tbe defeadaB^.relM iwvy Jittk nptm eny-ethet 
grQiia4^.£:^ hk coiidiM|t> the« the one ebwre menticmed. TI19 
atUifeiQea deryhd upoii th» jniw> t»id Mbve ihen^ end what 
mfrem»e iiiwdnn. ""-*/. 

By thft eorfeip«i|de^e# Wi liafi«mai»afytnitai% it appears, 
that, «i'«e44tfi of Aplili MDS } the pjahnir wrete the de* 
feadant, theft he had eeep.eem of hk atrjiaieta of sake sent in 
to another houlie, #nd bofiM that he will t eoei^ iteie Smpmr* 
Mo acceiaatao6l>n Okatrfhk ca»ge> .That» if there te not 
a^probdbility of aeA^ thijii ff<h<nt<iaa main ao greaft a m* 
ciifice, or any thinff like it, h^ tr«iM prefer laving them sent 

rait tmm ^HHMfimiyt^' Qm «to Mth ef Jan% the pkeatiS; n 
aiMlaar kikr» «|M«aM h k i^ a p y ah ay^H that %a»t iw>tiM 
pkioe hatnew EkglaM^ttd f aasoaj «»d, eupi^oakg thatfuo* 
HMty a^ the Cape^ waadi ^>aie«»jiafe iwa hcigawk, if tka 
haada of ao Aaaeakai, tlaaiia Tllaii liaaaiirangQiaie the pettof 
<rf4epoaiaiaf his ge e db im ^Mit inqt, h«i, kavea efiery thiag te 
hk dkctetMa, in fnH nafiilnf »off iii diyng Ae h^iar pkk. 
t|r a ioAareait Ontha; «lhoi ii^r^ th» pkintiff welei ta the 
Miendant as follows :-*<< Jt is now certain, that war bas '.aaani 
vmmmiiAmwmn Ei^kkd mi Ffanee. Upte tiae idiglakest 
ik KB ir ofi tibe Fveneh awniaiikti ftl De«aiegn» ahijfc e|y 

. t 

( ' 

\ «• 



I& his letter of the 17tb Seplembnv i^e infMn JJt^ defai- 
anty t^at, as be liad refuaed to iMke ai advance on the goedai 
and had not complied «w]ih his nquest,' faai should hold him 
liiriilet if any accident befel them. 

The plaintUTs letter of the 14^ Affril, got to hand the'9tlr 
of June ; and, the defendant akatesy in answer, that, after having 
paid high duties oo the floods, ift iv^iipld not be to the interest' 
of the plaintiff te^ ee-ship Iksnu ' lis hopea .to 8cB» ncMr and 
tlMS,a>y' small pasm fc. ^ Bib sajra, howevier, that if the plaiBtiff 
Insists upon tiie -gSMHia being re-ehipped* he, the detodant^ will 
do so. 

On the %Sth of July, the plaintiff's letter of the 16th June, 
got to hand ; and dehad ant,' in answer, says is that he doea^not 
know if war ia positively dswisredi though it nfay boia nsideaeJ 
as certain, many jioetiKtiea having been oeteiittad -ofi onr 
coasts; speaid of the ceswcqyent dietrcaaes pf the isiaad ; that 
he .will neglect nething'in his p»^^> to mabt Ihe plaintiff's 

« « 

goods sa£B, by putting them intlb*lbe hsnds oi an American 
merchaD^ as requested. f « 

NovtoiWr 11th. The^Msndant.aendi plaintiff a bS, ibr the 
it sudi goods as bbfbad tban>floh 


WAamiMQTWf^ J. * The lettefs frogiike pbinlir left^ in 
nqropinient agreatdealtothediftMtiDn-of iiMHdbiaadvt. M 
they cottht not be sold inthoiit.aneiKee».bel^r made, the do- 
tedsnt was bound to re<s^p thcSb ; and( in case of war, he 
adfMMd, AaC the goods rihouM be placei under the care of 
sefne Amenijan merchant. This ia Ibn substance of the two 
letters, of the 14th of April and i«th of June. The letter of 
the.Sth Julyi is more posidve bi «rderhig the goods to be re- 
shipped, incase of danger thit the French wonld nraenaftetlla 
iskaid. '* 

1^ defMant's answer to Ae plaintiff's first letter, sfisms to»^ 
ateign a'piausible, if not a satisfiictory reason, for retainingthn 
piy pe iti t andthenew erderv urttiiBil in that of the 14ili <if 

\ t 





i< H ■ * 

JtfHf M. Bkndiaid. 

3mmf ttuJifcadMit prooiiMs to«ol»]r».iii fail answer of the 9Mk 
i^Jolf. Wkea tlie deipmimt received tte plaatrttff's letter of 
Ihe eth of Jttlf, dsesBOC appear; tfeklMr dote it appear, when 

* tbe prohibition took place. B«t^ it is obfioas, from the de» 
iBttftat's lettM ef the 39th ^ July, that, aMhooth he had not 
certainly heard of a deciaretion of war between England a|id 
France, fet, that partial acta of hoatiiicy hadroccuired on the 
coast of St. Domingo ; and h^ stales the eommercial embar* 
raasments they had piedttced, in pvetty strong colours. But, 
whether, under all circumstances, it woold have been most 
.pnidottt to ship the plaiotilPs goods to America, or Id retain 
them, might be oEtremely questiooaUe. if I were called 
upon to detide upon the correspoodenee^ I might pmbably 
differ ID opinion ftom the,arMtfaioni. But ought I, for this 
l«aS(M^ tt set aaide their award? 

In the ^e of Walker tr«. Smith, the Court refused to grant 
a new trial, aMiough we wore not satisfied with the verdict, 
and where we had heanl the whole OTidence laid before tbe 
jury. But, in this case, Hie arbitrators had' the advantage of 
hearing tiie obaemdoaa and acknowledgments of the defendant 
himself^ as to the moiiveotir his eoriduet, asd it appears that 
A0y were, in some measure, governed in their opinions, by 
this species of ev id a rie c. 

It was, perhaps, not going too for for the arbitrators to coir^ 
elude, from tho'eKcueo so entirely relied upon^by tiie defendant, 
that no other existed ; aiNf Chat^ if it had not been for his claim 
Upon the goods, for semiring his «dvan6es, made on account of 
the plaintiff, he would have considered himself bound, by the 
order he had received, to return tbe goods. But, this excuse 
was by no means a suAci^nt one ; and, I think ,4he opinion 
off the arbitrators upon this point, was perfectly correct. An 
agent has a iien upon the property of his principal, for any ba- 

; lance due him ; but, if he is ordered to part with the possession 
of such property, shall he disobey these orders, sod retain 
goods, to % large amount, in order to satisfy an inconsiderable 


» m 

X « 




JoM^ m. Bhadmrd. 

■ ^ ■>! m» 

deN ? TJiii ddfendiitt migbl lunre raftidMd tiieli » pm of tiit 
goods, as would have bees aofficient to aecure him; or hentiglit 
have consigned the whole to hia friand bmrtf to delhrer thaoi 
up) on being paid what waa due. 

Upoti the whfrfe, I do not tUnk tilat tbe^fbltnitorB hate 
been guilty of thoae obviovs 'mistakeat in flaattera of klw or &ct> 
which oaglit 10 itralidale tbaif< tepoH. 

» • 

• * 


* / 




• ' 


APfttL TERM, 1805. 


Hiikiek<5per ct. BiutuB. « 


HuiDKKd#£II l/«. BuBJl48| 

Motion for arrest of judgment ; because, the ejectment against the casual 
ejector, was wrong entitled, and for other defendants. \ The dedlaratioa 
to wluch t^ real defendant had ]ileaded, Iras right The motion wss 

. oreiruled. 

iMATIOlf 111 arrest .of judgment,' because tfat action k 
fnfought, as of April sessions, 1803, in the Circuit Court of thtf 
fJtaH^ ^ates, in and f>r the eastern distinct of Penns^Wania.; 
whereas no mxeh stosions was erer held or ^established by law. 
9i, The land Is not stated to be in the eastern district of Penn- 
Wj^bnttAfLj Aotigh Mie action is brbii|^ht .in and for the eastern 
dhlrief . ISd. No tftfe in the pfaintiir at the time of the entry 
titd Mster, Btited in the decltration. (a> 

Mr. TngiMoQ, tot tlfe ptaMlif, admitted ; that, in the decla- 
ration against the casual ejector, there exists the mistake al- 
leged; tat, tf nnr' dedaMtion if^^M iif-the present Circuit 
Courts- and pr»p^lif endtled^- to wfa&di declaration the defend- 
ant |it 6 ii ( K di Aat tlie laad, fn tMs declaratitm, is stated to lie 
ift ^M district of PeimsylTSAta; which, after the r^»eal of the 
fcfatief C^beedtt <>Mm liw^ wks sMcient. 

Stile dtselifls^cdt'* *' ♦ 




• • 

• • 

« . 





I^enee of Hnidekoper ct. Dougtan. 

Lessee' OF HyiDEKOPEB v«. Douglass. 

Wlmt ^napreveniian irora making a setlitement on lands within the <<new 

puTQliase ?" 
What was the pemrianee requifed by the kw of Pedn^lvs]ua2*UQder whidi 

tiiose lands were sold U 

X HIS cause resembletl the two former c^ses oi tbe JMme 
plaintiff, agunst Burrus and M'Clean9(a) and was tried at the last 
term. The judges differing in opinion^ upcm the constraftian 
of the 9th section of the law, the case was adj^^^'^^ ^ ^ 
Supreme Court; who have certified their opiploni timl a w«« 
rant holder, who, from lOth April 1793^ to Ibe first of January 
1796, was prevented by th« eoaaa^ of the Uiuitd S^t^ ft^tm 
making such settlement as the Igm required, iNifc who, dipifog 
that period, persisted m hb eodji^vours to matieradi settle* 
ment and residence, is entitled to hold his land in fee simple, 
although after ^he preveotipn cMsed, he mide no attempt to 
make such settlement. « . .« 

The cause now came on, and was. tried on ^he annw fvidioce. 

WJSHIMGTOJ\r,J.chzvffid^t}^iwey. The plaintiff a|ipem 
before you, with a regular p^per titl^ tem tbe wamnt to Ihft 
patent. When this cause was uied helo«e,'the counsel fer the 
defendapt insisted, that the plahnUF's title was bottomed upon 
a contract, which he had not pom^ad with. That he was to 
fliake a settlement, such as theienacting clause of the 9th sec- 
tion requires, unless prevented from doing so, by the enemies 
of the Unit A States ; in which latter case, he waa3iu>t only lo 
prove a persistahce in endeavours to make the settlement, ^vr* 
ing the period of the war, but was to go on to make it after th^ 

(a) Ante, pages 109. 136. 


< • APRIL TERM, 186s. - ^^25^ 



Leasee of Haadikdper of. DioiigiaaB.- ' * ^ 

' fH fe vmillMi cBMBied. TMs qnMUMi was io Mficuft, t» to divide 
%lt OTif tibis Coart, birt the Coorts of tkk Slate. The questioii' • 
was adjammed to the Sl^preme Coint, wiiieh has decided that 
a warrantee, << who, {h>itr iMi ApvS, liQ^9S^*to tke lat of Jami* 
aiy, 1796, was preyented bjFthe o p em ie t'of ilbe Uidted States, 
from makifig such. settkmeDt as lAie law required, but who, 
during that period^ iierskted In lite endeavot|i% to make such 
settlement and reshtaice; is entitled to bol<^ his land in fm 
isiniple ;* akhough, aMr the .prevesnleii' ceased) he made no «l^ 
traspt to miike such settlement.** TKis we must oeneider as 
tte law of the Ittid, and govein oar decision by k. 

* .The questions then are, 1st. Was the Hoiiltnd Company, 
§fom, Apr9 179^, to January 1796, propeBlfed from making 
titeir settie inet ? iMid 2d. Did tiMf persist in endeavours, dur- 
^g liutf period, loniake it ? 

i What' is tiie legal meani^ oi fimvention^ and what the 
anaiiieg MjmrtiBtance in e Mt anmwrtrf 3d. Were they pre-. 
TC&ted, siid'*4^ l^ey persist wWilnvthis -Bteanihg ? The first 
are questions of law, n^hihe Court are to decide; the 
taAtef are queajlioiis oC- fact, proper, ftr yenr^etermimitiQn. 

* ^ What were they to be preiieRted from. doing, & order to. e1b» 
eme then ) 9be answer is, *om cleaving, frncing^ and culti<r 
^vdng av«a«Mief Jsadifi^^eee^-keiidred acres, contaitied in., 
tlwli WBitant^ frott>h^Mtag a. hoisiie thereon,fit for the hahitft* 

of'ttan, sad -itaiai ««rfdiaf,or causing a family to reside ! 
T»what wmmm eilisi tbetr endeavours to go^ The ^ 
is, to offset tlwtt^dliBQti. It was not eveiy sll^t cmt 
te m p erary danger which woslo esn^iEwe them from nwjkmg such 
e s aima ente; but eiicli as a prwient nan ought to regard. The 
.p in hill ib stigsAeled to settle as a society of husbandmen, not as 
arhelMl of soldiers. They were not bo«Bd to efcct every thing 
wMslk'flyght be expected from nfliury me»» "whose pvofasion 
St> i» to meet, to combat, and to overooese danger. . To sucft 
■asB'it would be a poor eacuse, ta-saf, tbsp w^re pveveated 
tif dkHfirfrom the p es fcfm ance of tinir dtfty, tlie teslMpft^ 






JLcisee of Huidek^por «i. Doagbat. 

, .■■^.- , u* 

io»n fcuriafcct in tfcre \m^ gl o rio g ii but wt^Uftmhaaommklm' 
mi life. So br from tie Lughiiture expecting ttait UMf wei^ 
to brave tbe dangere of a aaira^e eoettijy in ofAar to eiect 
ftfeipir sottlemeota; tbey^are ea cioo i 4 #Bin making them, if such 
dangera .oaiat. Btit they BMiat pmeiat in their endeatours to 
make them. Thai ia, thejr are to pematt if the danger is over 
lahich prevented them fpooa auiking them* , For it would be a 
■Kmatroua absurdity to aay , that the d a o g er > which, by pre* 
voKting them from makigg the settlementa, would ex^nae them* 
wouM oat at the same tiMo ese^e them imm en d oa w o o ra lo 
mAe them, an V>ng aa it e:dalQd. It wotiM*he a mockery la 

aay, that a mitk shouM be excused from jumiMBg down a pi^ 

. * 

cipice, provided ho would persevere in his endeaMMifa ta do ii| 
because by making Uie eodaaaours he certainly woold do it| 
although the conaequencea weuld be such «a he waa to to a e d 
from incurring. If, th^n, the Company were prevented ftoaa 
making their 8ettlemeilt% by dangers from « public eaaaap^ 
whom no prudent man wonrid or ought to enconnter^'flBd tf they 
made those endeawaura^which the Mtt^e naan wottM hkwe made 
to eibct the object; they hvro^fuHy comfAedwith the proiko 
of the fth aedtion. ^ 

How then are the &cts ? TiMut a |MMic w* iMwan Aa 
Udited States and the Indian tiibeei a^haaitoi %mm April ifM, 
and previoua to that period^ april Mt^4m liB4» ia wot denli#^ 
and though the great theatre of lllarwar lay fer to Ite noil^ 
,west of the land in dispute^ yelik irtloariy pweod, tkat this* 
oeuntry, during the period, wie expoee d to r e p eated ■ 
of the eneasy; killing and phmderiagf aoch of the 
they met with in sitoatioaa whete they cevl* not 
aelvea. MThat was the degree of dangers paodhaeod by 


boaifle incursiona, can only lieceamiiated by the eendncAof thooo 
trho atteeDpted tolaoe h* We find them aometimea we ihi M g 
h> Hietf fielda, in the do; tliw, in the neighfaouehod o#the fwrta, 
and Mliaifig witUn theirwaHa «t flight, lor protectioB. iima 
tlBiaa gfMay up tke pttfanit in deapiliiii and retirhi( to %it 

» . 


APUI. TBtM; laoi. 



Lessee of Huidektf p«r v$, Dgiiiplass. 

s f 


i i iJtl i» il p«ri6 •! tlw ooQRtry; ttea retnnupig to Uncoiuitrjr, aad 
mg^ •^iHdiirim itk- We sometimes meet witk a few meOf 
Imtij enough to attempt tlie cttkivatien ^ tbear lands; asso- 
, Gialiag implements of liiuilpttidrfy-wkb. tke fbot^jameau of war^ 
Ihcf character of the imstoandman with 4kat of tlie soldier. And 
yet.I do not recollect any instance, whare, with this iBBterpriaing» 
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 Ho^hftd 
Company. You will consider what was the state of that goub* 
try, during the peiio4 in tjuastisM you wiU ^pif the ptiBci- 
|des laid by tiie Courts to Ike evidenee iHrftv-canse ; and then 
say, whether the title is with the pUdStiff «r wot. 

, Terdfct for filaimiff. 

* ., 

'■» • 

• « • 

• » 



M ■ ■ VBf 


Lenee of Hmst m. DuxneD. 


Lesbsb or Timothy Hurst v9. Durnell. 

The pn^fielttsr of PamylTOMn, hy hu praniae tp fint pmrhmcw^ did not 
depnve himself of the light to hy off the manor of Springettibuiy, north 
of the city of Philedel^hia. 

A wtrnut willioat a survey," made under a legaHy authorized surveyor, does 
not, b^ the practice of Pennsyhania, give a right of entiy to support an 

The eontnctfor liberty land, behreen the proprietary and those who en^ 
tiiled themsehres to it{ Iqt taUmg up hnds in the co«nliy» operated seve* 
rally with each p«[ch|sn^^ and not with tiie wbdes, oonalitBtp ' 
them tenants in connMRi 

Those who were entitled to Liberty lands^ were bound to have them hud aff^ 
by surveyors reguhofy app<»nted, as in other parts of the then province; , 
the law being the same, as to tiMse lands, as to <mer bnds in Pennsyl- 

The piopaetuy waaottAier aa agea^Qor a trastee, for HABni [Wiiiihaai isi 

The titte of the le4or tf 1M ylaiBtiff; wuk m foliowsfr— 

4tli Df «rch| 1681, The gemt ^ the goyenMMBt and aatt of 
J^emtyhraaia, was nade by Ctefiaa IL to Wiliaai T»»inj iM 
Ant« • 

William Peim, mamad hit tmttfk'm Mft, and had throe 
children, Springelt, William ; aad hmMfn^mho mar^kti Auhvay. 
Hia fira^ wife died in 169Ci and aftumiida he manied agaio, 
aoid had Jo|p, Thomas, Richard, Dannia; and Hannah who 
married Mr. Frame* 

Sptiiigett and Dennis died in his life time. William Penn 
died in the year 1718, on the 30th (tf July. 

William, the se€ond,died iniaatala, in the year 1780« leaThiB 
ohildren; Springelt, his eldeat aon, William) and CMirhaay 
a daaghter, who married Charlea Felh 

Gulielma died, leering issue Robert £• FeD, Ouliehiie Maria 


APRILr TmiMi IW». 



LeMib of nirat «i. DanwIL 


M|» whp mwried Mr. Kvircomb; and Mary Margmretta, who 
manied Mui Baron. 

PrcffMM to the ^t WHliMn P«im's comiiig to Americat tiz. 
. <»li the 34th of October IMl; wldi a view to indutd persons to 
' .omne over and settle u|>oii Jiis Ipn^ i& PeiUM^lTania ; he .i^;reed 
*with them to lay oiit a lltrge town in some eligible place, and to 
^ve to each perioiriHio would take up five hundred acres of 
« fand in the country^ ten acres in the town. The list, centahi* 
ing the names of the pe^rsons with whcmi this agreement was 
made, is called, by way of distin'ctiMl, the list of first ptirchasers. 
William Penn came oyer in 168S; wlien, it is admitted, that 
.some alteration took plac0*ki thblin^t agteement, but the pre- 
cise tenn»of it are unknown. The originaf plan of a city, to 
contain ten tbousaad aeres, was-abaadkmed; and it was confined 
t» about 1^ acres ^ and i^out lOQOQ acres^ adfoining the city, 
ifietc laid off for the^benefit of the fijrat ^rchasers, in compliance 
with the first agreement, and waa^afled Liberty land. 

Th^ natne of William, the second, was put down on the list 
ef first pncchas^rs, for 5000 acres ;*lbr which a warrant was is- 
ttted on' the I3tk September tftM) add also, one for 300 acres, 
kfe imq)onkmjof Imd within th* fibmies of the city. The fi>rmer 
m^4Uy ancteiyed $ ikt lattar was never surveyed, but in the 
manner hereafter mentioned. 

.By the wiB gf Wil|l«B, Oa irst^ be-Mt certain parts of his, 
If^ate estate, to tlie cloMnNi of his first wife; arid the govem- 
miant and sou gf Pea^afkania, ao the children of his second 
wli^« ■ 

The two branches differiag#about the will, an accommoda* 
tien finally took place, ibm 33d of September 1731, between the 
chilflren of William Pcnnf the second, and his sister Laetitia, 
the children by* the first venti*^ «Qd those by the last wife; by 
wbkii the fonner surrendered their claim to the government 
and soil of Pennsylvania; raaerving their right to all their pri- 
vate landaji-vltather derived under specific bequests, in the will 
of WiUisamrihe firsts i^ otherwise acquired by tbem. 


.. •• 



itf Hunk w. DomeU.. 

By the iotesttte law ^f Ptumyhiiij at the thfte df the 4n0k 
of William^ the second, hto eldest sdh, Spring^etft, Mcane 
titled to one Mf of his veal estate; W^Kliam, the thirds to 
ibarth ; aid GdKehna to oBe4s«vth. 

Upon the deatii of Mn. V^IH her eldest son, Rob^l £. Fell 
became entitled to one-half of her onNibiinh of tira estate of 
William, the second ; and Imb two Mlertf, to one-fourth each) 
of thsit one-fourth. .' * 

Behig thus entitled, Robert £. FcAl, in his own riglit, and as 
attorney for his sister Oulielma; oonTeyed to Timothy Uursl^ 
in fee, by deed dated 10th May 1770, alf the lands to which lie 
or his sister were entitled,* in Penfisylraniay or elsewhoii in 

On the 13th of June I7f&, th^ Sonreyor Senerai and Secre- 
tary of the land ofioe, baring i^efesed to issue Hwamiit e6 
Timothy Hurst, ht stfnreying die proportadtt 6f Liberty land^ la 
which he was entitled^ In H|{lit of Robert £. Ml and bis sWter, 
under the warrant for 800 aeies, issued to MTffiam F^an, ib€ 
second ; the original wartant was put into the hands of Joseph 
HalU a sdnm^yor, bnt n<lt an authorized one; if ho laid it npba 
31 acres on the Delaware, adjifining Vine Street and Pegg^s 
run, at that time built upon, as ute 'prered by a wHaee^n"'^ 

, Wallace, Lewis and Levy, argo^^ for the pMnlff, and een- 

. tended: 1st, upon the etidence,' that the find in question trai 

, part of the Liberty lands, which WWam Penn, the first, had 

agreed to appropriate to the use* of the first purchasers; and ttaX 

' be had no right to appropriate key part of it to his prl? ate use, 

' as would be relied upon in support of the defendant's thfe. 

3d. That William Penn was a tmstee for the first purchasers ; 

and therefore, that the act of Iflmitatiott did not mn.* They 

cited 2 XVill. 144. 

The ground taken by Ingersol! and Rawle, fis'ithe defendant, 
was; 1st, that the land in question, was IiM off by the proprie-* 
' tary, for a manor, WMch he espied his man^or ^ i/itit^fttubtiryi 


APRIL TttOf, t«M. * 3M 

Leasee^ Hunt iml IhuMfllL 

■ ■ '. <■ ■■ i\ ' ■ ■ .. y ■■ .1 ■ I I • 

* * . * 

f et Afl& bgiajteriespf it«re sufficiently proved by lk» teelwetiy. 

M. Tfcpipli^iff tkle, luivki|; «i|r a wtttvit) viih6ut 
a legal Mirvef . f 

' 3cU Tbat the plaiatiff is lNirff4 % tJs Act «f Ztetl^liiii. 
. 4t)i« Length hi time creates a presamption agam^t the title. 

The argiromits of counsel, and tile evidence^ are prettf nfe- 
l^eraily noticed in tHnm cha^(^ \ 

}fi;ASHIJiGTOJi J. Qn the SSd of SeplMihef 1731, an 
i)gi»ement ^a^ made haHre^ the yofunger aftd dderhranchea 
of the Penn £unilf ; by . wliioh the right of goTnaawiiiit, and soil 
of thepjaDtioceAf Peon^lraiAa, was eeaANnedtori^ younger 
^panch^aiNl the pupate jr^ts of the eMer hraach were con- 
ianMd'to iten. 

.;Xhe p^miff Glaia|ia.«ifMler the olier braneb, and he founds his 
tilkrAn the wanBMBit.V> William FeoHy th^ second, for 300 acres 
ef USomtg tami; to which he^^aaa'entitled in yirtue of his cha*. 
i^ctep as first purchaser. The deJon^iAt claisas undcv th« 
jmmfr branch of the family^ wWhapamfet by the will of the 
last Wiiliaaa Penn, and the iahtaqaewt iaaaily csyttppo^ enti- 
'tted. ta all the fHC^rii^afy nghta in this paaHiace. 

The tMa of the dbfendaot is isas»M ufim the ri|^t of the^ 
itil WilMaaaMony teea chs^in dfalbif^eiceiintry lying hetwe^ 
Vine Street, Fegg's nuB» ahe JDelawaflfe, and so north and west 
ta^he Schuylkill; whkib iiis said was ^propriated by the pto* 
fsaa^ary to hia own use, aa a W^^agk^juA consequently thsA the 
Irst purchasers had no right, to kf their wssrants upon landSy 
thaa af ptopriated to the aae aMio proprietary. 

The fiivt great inqniif is, w«a the land in question* hod tM 

hf tiba^batmipMlBSf iNrainacMir; or was it laid^ff aad,ap«- 

paapsialeAdsa Uheal^ land, ii» the use of the first ptteakasan ? 

ThiftAlfiaqpiMie^^of fat far fa coofMeraliofi of4he jutf. 

* SqMpp4* }^ it waa Ud^fer a manoisi had the prnprietaeya 



.' . • * 



S66 ' yBNN^YLVA;r^IA, 

of Hurst «, IHtzneU. 

rIfliMfc to. a{i|mi|priate it to ki» pmalo^ use ? Tiui is m qfacMtidB 
of Jmt fer t|i« Court. 

lst« To piovo tb^t ithe tract, oonitmmg IsWacresjof wbkb 
the land in quwtUi^ is a pajrt,- was kid pff fi>r a manor, the de? 
feodw^ jtsUes upaa theJsilowiog evidence :— ^ 

1. An aceoont of Mr. Fairmaiiy forpp^rl^ a surveyor of. thf 
propnetariesr dated in 16aS{ in which he charges the. proprie- 
taries « for taking im estinnuate of a' vucancy-on both aides of the 
town, divi^d from the Liberty land; which the proptietary ac- 
oqyted, and afterwards eaHed it the manor of Springettsbury.. 

2. An iid map^ supposed to have been made, afid by compa- 
i^son of haMsf believed tohave^beao ip'the handwriting, of fid- 
ward PenningCOB, Sunne^or Gennral, about the year 1701 ; in 
which the m«ior b liid off, in the. mumfiP contended for hg 
the defendant. Th^ boundaries of this man^r have lately beeai 
laid off) according to adjoii^g surveys, ca|l|ag for ^^. manor » 
and found to correspond viA thps ancient map^- The adaai* 
^ion of this map was objected tf^ bat admitted by theO>urt fs' 
an old paper which soppiar^ and has gone along with the po^m- 
aion;.and though not aiyned by , Edward Pennington^ yet frojcn 

the siaailatity of the baAdwi!iti<ICi ^^^^ ^uit fout^din the office 
of the sanse pesMNi^ whUst he iras Surveyor Geoetal, it was sop* 
posed by the Cmut to be prop e r to leatw it^ the jnrji* t# give to 
it SHoh weight as Uie suppof^k msy feofiive fiwBt other pwli 
of the^exidenpe, nigbt, m theirjopjaimi, entitle it to. 
• 3* As aiurther conobpitaiipo^'Qf ska asanur having been oiyce 
earveyed, as distinct from, the Lihestaea; we find, in the year 
1703^ a warrant for re-surv<ying it, as also the Liberties. 

4. Then follow the lines of aliUie ai^oiiung surveys, calling 
for, and fixing the boundaries of <this mpoor. Ancient bounda- 
ries Ave fiPeqoently eatablii^ed)by the rspiirnriwi a|dundflralaBd* 
ing of the neighbourhood, Vfhtm no beHMr etld«|iDo can M 
ohtaioad, even the heasaiy of ^ peraoM, nolr deMf «i to the 
reputed bounds* is oftta, and properly, resorted to. The lines 
of jumor patents, caUing for those of elder featei^s, c^intribuC^- 


APRa TEiiil, 1S05 




Lcooce of Dunrt. w. 

• > 

to esuHiah the WMh ■«% upM m qtMltfft^mtntitk jM>t Mf 
involrea the bouiidaries'^f this nmnor, iMifc-the right oC the ^it»* 
"prietiif to la^ kotTfStti^eysy tad grants btafilig upon the manor, 
and calttng it the property of the pvepfiattny, amhttaia uMitn a 
|N» years after kwta laid oil^are^ the at ro n gn atlppd'dfeti^^ 
It is the testimony of men, who mail hare h«0n well aeqnaiflrted 
whh the &ct; attesting the ttuth of it, hy «r/« whic^ lesTo no 
Aiom Ibr doubt. We ted more than' tmmilf surveys,. fixing the 
Ibes (rfthemanof, as laid dolm in the map, slid ea he INnnhig^s 
ton's; and all of them dUmg k, the maaorof SprittgauAasy*** 
proprietary^ or g o vet n or's hmd. These au»9«ys» grants, and 
watiraats, were ibade from the yaar l€4Mio 16M. Then comer 
tte prooeedings mf the CoHtessionem mS FropMy, in 1591, 
Wch fix thai»u|iiM,ita ei'.the manor at the mkA end of the 
dty, hmxadhig 00 the IMsware and Ft|^ ceesic. 

In thtfsAes af ii«ftsfMter*s ^ract, made by Phgg to Fitzwatexi, 
im'lTMl ftoaa Fhawater to*6tenaer,iFin Ifafffrom SMmerta 
Vishart, in 1759; they aB orit^-tMs ««.€kOf«mor's hod, in the 
Kordiem Ltbpsreies.*' In l69VtipMi adinsioa amongat die 
•Uranson fitrnfly, they attest the •saatjH hfsL And, hi 17S^ we 
find by a peMbn, called the Ssena quarry petilian» aipned by a 
gteat wmiher ef persons, aaaatigst wheat ar»aB«ie4»r the first 
phsd ia seia ^ the eaaie admJssian ii made. 

This iethe uiitKHtij andnpi^iias th»eriHcpce of the manoT) 
aatf (rf its bboads. The pieofilf asa pm i gwiis spre, and are afcf^ 
ed hi'difiemt wsy%4baat ^ year lfia4 to 17S9. 
« On the other side, the ptakaMPibis produced agieat nnmher 
et sarreys, warrants, and gi a t s yc i tend ing from the se«th«waet 
flMe^ the SchnjdUily aad atirtnmidfaig the naanor ai fu* nprth 
and east aa Cohockuak cveek; in which the lands they coKr 
are oMed lAerty lands^ Maartkfa evidence does not, in spy 
f«tpee% codflkt trtOi^ o» ifiaprmrn iihe fhct asaartad hfthe de- 
finidaat; haoauae the MMMahment of LBMrty lands^dD^. Mt 
iiispMvttithe dtlrtence oft a manor, nnhav thoaa snfveya of 
hertrh^ hosA^wea looated withm the Jh» wm 


« ? 



wm 11^ 


oC Hunt w. UumeO. 


tkeDoe of a ^anor, tmd it&m'ii there irere Liberty laada ■d|Dtii«> 
hi|^ PhiMelpttai and wAfomm(g;^dko tfae manor. 

Tlie ytry ifill thenfiire aay, upon thia peint^ whether^ «t Ite 
4IMMHMI of ette ho B ^rod and Iwentf yeara* tli« proofii of tke dt» 
fimteA a«e gatiiifcatrny» to .eiaaMalr the lines of tbis ancient 

ttMAOr. ' ' ^ 

« Sd. The fiest queajanla, kad the p«t>prletary upright to ea- 
ilWtah' thia manor ? ,Me cerCuttiy posaeaaad the li^ht fonkal 
he pfodtfiM himaelf) by the^concaamna made to tb« fiist pur* 
ishaaera. B«t tUa no maaia the caae. He allpadaiad' 
to lay off ae mach laaid^ for thn beimBt of the firat pQfchaaBni 
ttdjomiiig the dly } and the wamit to Nvhi^ in IM9^ Aractioif 
him to survey and ovrMmid a certain foaNliy ef lead tdfeoiattf 
the city of PhiladelpMa, Ibr the beoettdf iwt yir n Hhairn mOSf 
veirbe considered aa evidence of *thiB Act. Horn itnA Ltbetty 
liutds do adjoin the eily on the w«at ; atid aathienMnamt ddm 
not-lay that it ia to ad|jein It i*e on thtf north, the promlae ttf 
like proprietary is 4MmiplM w4ih; although ht appropriated tA 
Ma own uae Ihh land at the jnorth- end of the cky. Bat whci» 
Mar waatheiMtore oTthe teat 'Agreement, made wilBi the first 
pttrchaaera ; 11 wan m the powervf «il the pectiaa flaacoMiody te 
alter it ; and the entire rfiineiihfiiaatJM of llm imt pclMwaeraf io 
die eatabttehment of tUa aaaao^, i%ght al thaa^daf lo bb oan- 
il dered aa evideaee of en agnitma n a » hyi ♦Mch. the p wpHM my 
.waa permitted lo mahe anch aa^appmpaaaijaiL Even WiMbia 
9msti the aaoendt by hayfaiy jumsi aafie^iid hia weiraal forlOO 
heres) though he was canlM ^QMiafh te ayrvey hia waivant Ar 
t&mittf land ; aUbrda evMaace Jhi ha hiA oe right te lnwitt it 
mthhi the manor. 

Sd. The umft queaiien, idto tutfuealitfaior'lMK !a^ 
plahitW reeoyair on 1iM nai mm -mA^ikgrmfM itia 
Ite <a>uBael Oft both aiieh, thet la vaitmMi vilhMt a avhrap, d^ 
iMt hi thb MM gi ve a tegid fight af eatipy ; ami* k ia dae acie^ 
ift a gabaral niitt) that the sarfuy • to hh talU^ iiiaat h# laftda by 

iU*Ri^ TEftM, 1801. " ^ SH 

iMwe of flunft «». IMiwIt ^ 

an MiMriiitf sitfViqwr, frtwrth iaii aiat teea doim m lh»ctMri 
But it ia eoDtendefl by the pUftftiff 1» «Mi»eI, tbal u iMdi M 
the Ukmrty kmin werelaflAriTy Hm le«|il estate tharela haeame 
Tasted ia tke ttat pnrchatera^ aa tmianlaJD coniiiiaB i tmi tiMtt 
ritiif jNna^ ki imni»<»A,-ini|ia. I^^off hia i^rt, in .aaramhiei 
vittettt the aid of an authoiisad aii«fe^«' If the int |Murt of 
the poahioii were eatahlMied, I dtk mt^ know that the conse- 
quence wouM follow. I shoaM dnmhi the power of one tenant 
in comiMDn^ to carre for himself, and say ; ihat by virttte 6f such 
an act) he had appropriated this or that particular apot to his 
•#n nse, in severalty; but the truth is, that the contraet was 
made, not.jointly, but severally, with each first purchaser; and 
the l aying off the Liberty lands, war only sayin|r, that within 
those bbunds, eaqb first purchasemight locate his Liberty land, 
fiut the -same ^itical reasons, which required an authorized 
sntrvey # locate warrants In other parts of thia province, applied 
with equal force to this particular territory. The wartanta, 
with respect to these lands, wcte severdDy issued, and were^di- 
tected to the Surveyor Genend« He, then, or his deputieSf 
could alone execute them. i 

4th. The next question is, b the jflaintiff barred by the ^a- 
tttta of Limitations ? The warrant issued in 1 689^— it is arjpied 
that tt was never execute till 1770, ^id that the plaintiffs never* 
were in possession. It is ilaid that there was a trust in this casoi 
jmd William Penn, the first, was called the ttustee. Under the 
3d point, it was said, the legal etete passed to the first pur- 
chasers* The counsel paiceiving the dilemma to- which he was 
exposing himself endeavoured. very dexterously to avoid it, by 
caiUng WiUiam Penn, an agent for the first purchasers : but I 
do not see any ground for this. He issued warrants to each, 
<ant]J6rixiDg fheaa to anrvoy Libuty lands. TUa thej might 
«dh> or not, as they pieaaed, and he had no control over then, 
nor had he any agency in the business. '« 

B«it il is said) that when the proprietary tooh up this manor, 






of Hunt 



he ilMitt hme iatended tokoM^di^ rigfits of his two thil&«i| 
WilfiMi, the second, tad, his «iit«r. ' 

Tlwre i»iio kind of pipof of this.* But suppose it HHsre the 
cssey'theii it would foUow^ that William, the son, hltd onlf sn 
ofvlUAle clmm to hqr hb waurrant sjotne where vithio thenranor; 
wk&di weald be a osmplele obfection to his recovery at law. 

Jkft^/ound a verdict for tkedejtndant. 

• -.» 

( * 

• ^ * ' 




9M1 et aL t». I^MiMtt 


it 19 irieumbent on a cMendant^ irlio chinw a rewel under a condemnalte; 

by a foreign tribnna]^ to pi^ove thatjthe ttSbimal was properly «oiiilitut<!<). 

FnOing to do this, the condemnatioii k a o^Utj. 
^Wliere a copdemnatiim is by a feg^ga Court, it will be presuawd to be a 

legal one^ iTtfae conadtutioii of it be not knovn. 
Whore its coiutitution is knowi^ it ia proper Ibrthe Court to ^;ttinine into 
' Ml and, if it hasbeen comtitiit^ bya difibent' authopty* from wbat i» 

usual in crrifize^ nation^ it heeoniea Hm, wbo would aupport its juri»- 

diction, to prove is was erected by proper authority. 
Tbe erection of Courts, is, in all cinliaed nations^ the act of the sovereign; 

although be may delegate the sntKonty to subordinate agents. • 

It is unusufd for a militafyconmiander to e^erciae iht iq;)tt to erect Courts,* 

and notling wg be preauptd in fiivour of llliniMils so ertablisbed. 

xROVBR fisr a quantilf of cdikc. The ease stated by the 
plaintiff, was ; that the Ch«•I0^e) b^g his prepeHy, took in al 
Cape Fran^oiSy in 1783, a quantity of ooffee for the plaintil^ 
and,^ome for ether shippers ; and whilst on her return to Neiii^ 
"(orky was eaptnred by a British^fiigate; part of her hands uken 
Oirt; a prise-lhaiiter put on Ix^ard, and ordered for Jamu£a« 
. After b^g in possession of the British prixe-nfaster for sohm 
days, rtte wsH capttt^d by a French prhrateer, and carried int^o 
St. Jago de Cnba. ^ Having Uuh there for a short time, hc^ 
cl^go, or a part of ity was transhipped into a vessel called the 
Messenger, and was broi^t to Philadelphia; came to the ppe« 
si9»ion of the defendant; who, on demand by tt^ptointiff, re- 
iieed to deliver it up ; sayings it had been purchased at ^uba* 
for him, by hk jApiSfc-cargo. . 

- The defence waa^ firA, that the evidence adduced by the 
pUihtiff, did not show his property in the eoffee» deilveeed te 
the defendant; that the marks of the barreb and bags, As enter- 
ed at'tlf custom-house here, did not corre^>ood with those 



SMRaCtL m. FNttWlt 


put ot them at St. Domingo ; and therefbroi that if the coffee 
takcD in by the Messenger at Ctiba, was proved to have come 
from the Charlotte^ yet it migfalt as Well be the coffee of the 
other sbippei^s, as of the plaintiff;^ and if so, a recovery in this 
actioni #ould be no bar Co an action by th6se persoift. 

2d. That by an order of General de Noailles, general of 
brigade, commander in chief of the right northern division of 
the anny. at St. Domingo, dated the 6th of Novembner 1803, a 
council of prizes was established for Cape St. Nioolas'Mole; 
who, on tW StMik Novembar iao3, in consequence of a re^rC 
made by their officer on' the S9«lit ** that the Charlotte -was 
cleared from Uie Cape, for New-York, and was captured and re- 
captured, as before ; that he is positive she was first detained, and 
afterwards condemned, by ihe captain of the British frigate ; 
that it is evident she was prize to the English, and was found 
with an English imse-owster on boar4» Mid concludes.)^ stat- 
ing, as the resnk of au this, that she and her eargp ought to 
be considered as English property, and on| be<tondeaan- 
•d ;'* HMy da condemn the, veesef and cargo, as good prize, 
taken from the British, and order her to be sold'for the benefit 
of the captors. The vesael lay ^t St. Jago, at the time of the 
6ondemna4ion; and the transhipment into the Messei^pir, look 
place on the 5th Novensher. She was enterad al Philfdirifhi* 
•n the 5th of Deo«mber» . ^ 

The counsel contended, on timBe fiActs,tlHiitl^ cnademfialias 
was conclusive as to the property. That thn voiael being in' a 
Spanish port, was no objection* That ./Msia facie the Court 
WNNtt presume, the tribunal that gave the aentsnce, was du^ 
aathMbnd t<|jpass it; and thatit is no ofajectssn to the caM|^»- 
'nation, that the cargo was previously sold. C«sos cimd on Ihi^ 
point. 3 Rob. Rep. 269. Bynk. B. 1. Chv U. Vntt. p. 5\5. 
B. 8.S133. 1 vol. Corp. de pri. 8. 370. li^nrt. 98. JUmpiMi, 
|k 188. ^Rath. SM. 4 Rob. 51. 6 T. Rep. 193. 

8d. If stt' thin be against the defendant, yet they are Aqs« 
^de poesessdvs ; -and according to correct opiniens of oivihana. 

•. *• \ 


APMt -^EAM, 189*? i7i 

Sndl et tX. V8, FkuiHrtt. - 

^wl^i— ^M^— * ! ■ M il Mill ■ J ' f ' * I ■■■Ja^^^fci^iiapM^^a^M^ 

ti!i€ plaintifi) if he recoJVert, Oii^t to piiy the amount' of MflmX. 
the coflfoe cott) «r wliat it n iMasoinablc to tbink the' p^dntiff 
would hare given for the'releaae of Aft property-. That fmudy 
apcording to the understanding of civilians, conaidtft in cdmbi'* 
ttation, and' secnfea benefit to our^lves, and Injury to others. 
On these pofnts, 9 KaimeB P. Eq. 390, 391. S Koch. 708. Grot. 
I vol. 395. Puff. 451. I Ruth. 135. Case of tire Neptune, 
Vefbre the District Cpurt o^ Pennsylvania. 

On the other side, were cite^i 2 Vnt. 273. Mapth, 105. Peak, 
ir. 47, 48. 1 R<5b. Rep. 119. 135. ; 2 Rob. 209'. 4 Rdb. 35. 
SyRob. 192. 53. 83. 

The defendant moved to ^nonsuit the plaintiflE^ ttpon the 
gfilin d ^ that this being a cause depend^bt on the question of 
fttie or no pruse, it belonged exclu^vely to the District Court. 
Cases cited. 3 T. Rep. 341. Cro. 1^. 8^5. 13 Cb. Rep. 52. 
3 Bulsttod, ff. . 1 %eC 330. 2 Lev. 25. 2 Sand. 259. 12 Mod* 
134. Carth. 4^. 4.74. Oougl. 572. 3 T. R6p. 333. 3 pail. 
eiaasand Gibbs. 2 Dall. U5. 1 Dslf.Sld. Mart. lOO. I>ougl: 
§92. 2 Brown C. and A..L. 2)3. . 2 Rob. Rep. 198. 3' Id. 82. 


- ' On the other were cited, Comb. 120. Carth 31. 3 Keb. 29T. 
' a^. 364. 1 Lev. 243. 12 Mod. 16/ 143. \ Tuck. Blacks. App^ 

#1^ 52.. 2 vol. LsMTS U. 9. 5(6. 1 Dall. 95. 2 Daik 4. 3 DalL 

t33. 2.Wootf Lac. 451. 4^4. 3 Burr« 685. ^309. 10 Mod. 80.'. 

4-R«b; 232. 240.' S«DalL 81. 

' The motion for a nonsuit was overruled $ the Court dividing 

ttpen It. (a) 

1(0) 19^00 the motiim for a notiiiuty the CoM wss divided in opinkm. 
.MK«: PettfB thouis^t we 1^4 juin^ctm. I was of a differesi opinioau 
No r««oS« wei^ ^di But thos^ ^Aach goyem^ wfUh. ware^ sbartly » as - 
lolknrs : The ClMotts vas-captured hy the English fKgate^ as piizie ; was 
^7^ft<ai9Sb pikateery as pnze; sent ins^Cttb*} and site- 
sandeoyaaik Tbe plawtiff, at the tine of liie cMq^luf^^had an iiidi»i ^ 
^ftuble^tfe 16 the fffopoty in quealion, if it is ii ks Hl ltd 9 but» if k was 
1piidullraeiai)d nd oaniewMd, the 1%^ Hie 

very ifueMlMft W kwi^ttoeta^ 4i^ whe l h ii «h^ pfepeny in dhpete wa» 







SneU et aL vs. Fauasatt. 

W^SHIJVGTOJV\ Jl, chai%^ the jmy. This is an actios 
of troter and Conversiion} the ground of which is, property in 
the plaintiff in the goods claimed^ aad a conversion by the de» 
fendant. The evidence, to establbh the right of the plaintiff 
to th^ goods bropigbt in the Messenger) and delivered to the 


defendant, is very contradictory. It is essential to the pHdn- 
tiff's recovery, that he should satisfy you upon this point. Il 
appears, that other coffee than that belonging to the plaintUI^ 
liras shipped fiom ^e Cape ; that the marks upon the pack- 
ages of the plaintiff^s co&e, were different from those which 
appeared on the packages entered at the cu^om house a£ Phi* 
ladelphia. It therefore become^ highly, important, that you 
should carefully examine the evidence ; and, unless you .arf 
satisfied, that the plaintiff has established his right of pro^ 
perty, in the very coffee delivered to the defendant, your ver* 
diet must be for the defendant. But, if you sboujd be^of opl« 
nion, that the plaintiff has proved ownership in that identical 
coffee^ delivered to defendant, then .we ai*e of opinion, that th^ 
condemnation at the Mole did not affect it. A condemnation 
of neutral property, by an unauthorized tribunal, is not to be 
regarded by the Courts of other n^dons. It is contended, that* 
prima facie, the Council of Prizes at the Moje, is to be consi>i 
dered as a legitimate Court. I. admit, that, where w« find a 
condemnation by a foreign Court, of the origin of whkh we 
are not informed; we oqght to presume it a legitisaate tribidial. 
But, when the source of its authority and constitution is atatedi 
we ought to exatiiine it ; and, if it be cqptrary to the usual 
mode of constituting Coui^s, it shifts the burden of proof up«fti 
Ae party who would support the cotidemhatiofa : particularly * 
as it b more easy to prove the legitimacy of Hhe Court, than 

eiptuiedearfnaiey sad lawfully condemaed, bo «% hy *he tar of aillM% is 
cbsage tbepNpertyt The qoesdoii, therefore, of pAze or no prite» 'm He^ 
vety gi^ of tfabnNlBm and all the cases, ftora the c it K e^ poibd, pfov^ 
that mch a <$ae86oiv>8 well as the confie<|aeiM«s of ttr belong mdhtthnalf* 
tl the Cou|t i£ Mms4 aBi4 in #Mt«oi«kcy^ «e 

•*. • I 



APRIL TERM, 1804. 



Snell et aL vs: Faussatt 


to disprove it. We kncnr, that tlie appointment of Courts ia^ 
id all civilized. couQtries^^'the sovereign power.'. This, how- 

' ever, may be lodged by the sover^gn, in a subordinate civil 
'Officer; naf, in a military commander, if the sovereign so 
chooses. But, this bttler mode is so unusual, that, when we 
bear of a Couct b^bg qoi)«iituted b^ a military commander ; 
and, partlcttkrly. wfaer$i it is not clear^ tfiat he was^^at the tii^e, 
commantfer-in'-chief, it destroys tlie presumption of its lega- 
lity; so «e lo require the party, wh6 would support the con*- 
demnation, to show that the Court wa» instituted by lawful 
^Qtbority. The Court being agreed u^Km this point, we think 

^t unnecessary to dedide the other objections to this sen« 
tcnce. (a) " ' * 

Tf^e Jury found /or the filuint^. 

(a) 1 cs»flneet witii no cases tft tU appficabie«to this peint; Int, upon ptinK 
eiple, I tfiak^the:dJst]iietao4 is coattct MuriialU 980^ M^^^tfastdie 
Coeurt, in wiucl| the amteaoe was pranoijbcedy mud ofifem to have been 
kvffi$lhf eonstiit^eSf 9Dd of conipetent jurisdiction.'* 

4 Novs.— If the quertion be, lAedier there has been a legal candeniiiation^ 
t0 aKer the propeily in a vuit or daim, by the ^rmer British o^ner, it can 
miy be made in tUe Prise Cdmtp to doeide whether she had become legal 
prise, and whether die ps^^erty bed been altered or not 2 Brow. Civ. 
i^ Am. Law, 314. 2 Bob. 239. In p. 129, et aeq.^ tl^ author. Brown, is 
elbtr upon the points, that, in sack a case, the question belongs exclusively 
to IStui provincial Court. If die taking be not as jymg,! action, to repair the 
ditoHgt, may be alTlaWf oKter, If t^en ais prize. ' Dough. 59S. 4 T. Rep. 
9M ^nie priae juriscuetisn docf ndt depend on loeai^^ but on llie tubjeet 
mUtt. Bnwn, C. anA A, LMr> 2^. If the sabject imllee be psise, it 
e> jk<4ss tte Cwnmenljqr Qmntto. 1 C. 225. 

» 1 




»W ^ ■ ; Pfik|i5YL^AHlA* 


Lessee of Hunt and Cair f». Wickerly. 

»■' . ■■ ! ■ ' I I ■ 


Lbssek or Hurst and Cara vs. Wiokerlt. 

It is no ground for a oontinuknce of « cause, that there has been published 
a report of the evidence, the ai^mefits of counsel, and the charge of the 
Court, in a oase which had been tried ; depending upon the same facta 
UpA pKlinciples. 

Thte p«ibl]c«^n of audi a xeport of the prqceedinga of AeCcmt, is propar. 

t m 

W^H£N Am cause Ms Q»Ued for trial, the plaintiff nov^ to 
put it ^ Uocause a st%tQpieiit had appeared in a oewspaper^ 
sinc^ the trial of the case of Hurst v€. Dumell ; m which 
a short acoouiit 9f the evideiioe, of the points made by the 
counsel) and of the charg^e of the Court, was given ; and} ib 
which it mm menjtionedt that thai was one, out ^«bo«t mghtf 
causes, depMding lor property in the Northeni\ii4efti6s^ The , 
ground of the motion was, that this 8tatein|nt, which Mr. 
IngersoH admitted had been inserted b)r one of the defend- 
ant's counsel, was calculated to jpci^duQe a prejudice against 
the plaintiff. 

a • 

tVASHlM^TOfr^ J. It is rt/rj ii|i!^per fcr either patty 
to a cause, to publish his case before the trial takes place; be- 
cause, he must necessarily make partial statements of the law 
or the fact, .or both; which are aliyay^s ci^cula^d to exQite, pre- 
possessiiMis un^voyrable'to an impartial' t^iai. The facts flftattd» 
are not what l^ve heen proved, accQr4in|r tn the mica oC lam f 
and, the law is not stated, as the ju«^ea»teve profio«nci4 it* 
The whole'is ex f^ar^. But, this is the first tji&e that I ever 
hea|Ni it contended, that the report of wlwt «had passed in a 
Court, whose proeeedhigs «and doings are all puMic, was im- 
proper. On the contrary, I wish that reports wefe ifiade of aB 
important trials, so soon as they have taken p'lace. Andf be- 
cause there may ba a cause on the^do^k^t^ depMi^ag tn .th« 

V. * . 





Lessee of Hunt and Cm cir« Wkkerly. 


principles, shall this information be suppressed, until it 
shall appear, that every such case ha& been determinecf ? But, 
it is said, that such a publication affords ^ cause for continuing 
the other causes, becaU3e of the prejudice it may have pro- 
duced on the public n^d. Now, my opinion Is quite other- 
wise. We all Jkn^w, that prejudices' become mare inveter^t^ 
as they ripen by ag8). and in the soil of ignorance, .We seldom 
repoUect the particular fiEicts and arguments, which have led 
our mkids to particular prejudices. Tlie impresmtis .gftther 
aU*eo^th, and uke deeper, root, the longer they remain unre- 
moved. The sooner, therefore^ the atjt^papt is made to remove 
them, the better. But, I cannot pevceive how'.a report of o 
. trijd in one cause, can create an «kiiproiter Mae in aBother^ 

thoi^ daywiding on the same pr]|Kiple ; tnd atill more d)li« 
ciiltis it to 4iscover, how such a pre^ttdioe) if 14 exist, oan h$ 
tesa nokt t^vm than it now is. Will the plainlW endeavMf 
to remove It, By the si«ne means that if was mmtmi i TUa lie 
cannot do, if his ptteciples be covroet. 

Id the ca^e of Hurst* tw. Oumell, three verdicta >»ere read* 
given in cases defMcndhi^QD (he same title, as peraoasive evi* 
,dence in that cause. Thia ifas not objected to. How thiNi 
ean a statement of a fourth verdict, be considered as an im- 
impv attempt to^cfiBCe a f»^dice? ; 

I an, therelbre, of opiMoB, ^hat the foaaon asaigAed is not 
aol&ciept fbr.cetitiniiilig this cause. . 

Jud^ P9i€r0 gai% a separate opimqp ; in whicb he concur- 
red that the reaaona niiipwd, were nA. anfieieia toicontimio 


• • •* 



» ' 

Pigoa tw. French. 



One who has beoooie suie^ for another, ctnoot reeorer the amoont of hk 
naponaibUilyy without showing that he had paid xt» beftve action broog'ht 

JL HE piftkitiff proved hia account, laf evidence of the defend^ 
ant's acknowledg;ment of alt the i^ems ; but, x^ro of them were 
for the phuntyPs guartoiteet for the defendant's engagements 
in England^ in which the plaintiff, aa his suretf, had become 
liable to pay before the bringing of this action : but, no proof . 
of payment was c^i«d, ami the plaintiff's counsel iiMiisied|that 
tiie jury ought to presume it. The defendant had endorsetf to 
the plaintiff a bill of exchange, endorsed to him, by I3usar; 
iwhlch the plaintiff, by the endorsement, was to recmve for the 
use of the defendant. TliB plaintiff had brought suit on the 
bill, but had not received the «mount. The defendant insisted^ ' 
that the plaintiff, not having returned tile bill, be was cDlitied 
to a credit for the amount. 

• * 

WjiSHIJ^GJTOJ^y J. The plamtiff cannot recover the tM 
sums for which he became surety for the defendant, without 
showing that Jbe had paid<hem before actiott brought; and, the 
'jury ought not to presume it, irom the circdmstance of has hav- 
ing before beeome batik to pay, and the giDod character of the 
plaintiff. Indeed, ttte presumption wouM be otherwise} sini^ 
his liability arose in October, and, if he had pidd those sums,* 
it would have been easy to prove it at this day^ As to the bill 
of exchange,, the plaintiff holds it as an agent and creditor of 
the defendant ; and so it is plain tharthe plaintiff understood 
it. It is a poUateral securfty, which he is entitled. to retain; 
a|)d, he will not be accouatabk for the amovnt rf it, until he 
h«8 received it. . 

• > 

APRIL TERM, 1805v 


Hicks fw. FitZBtmmona. 


Hicks v$, FiTztiMMONsr. 

Action to leeovertbe nnaant of tfiree bags of Spanish doHan, Widbh had 
been taken ftom theveaori on the Toyage, doling w)uch Ae was boarded 
by the cfew of a privateer.— The plaintifF must prore the kiaa to havitf 
occonedt by some one of tils perils insured against ; biit» a loss by em- 
bezzlement of the crewy is not included in the policy. ^ . 

The nature of the interest, which excludes the examination of a petBOii» as a 
witness ; and, an« examination of the law, in reference to the interest^ 
which excludes a witness. (NoU.) 

J HIS was an action on the case against the defendant, pre- 
sident of the Delaware Insurance Company, on a policy, dated 
the 6th of ^ecemb^r, 1803, on 5000 doilars> in specie, at and 
from New-York, to the city of Santo Domingo; with liberty to 
proceed to' any other port, Cape Francois excepted, in the 
island, and back to New-York: The policy was m the usual 
forn^. The plaintiff was owner of the vessel and cargo ; the 
captain was the consignee. - The bill of lading was for 17 bags, 
containing in all 5000 silver dollars. To prove the loss, the 
plaui^ff offered the captain as a witness. .He was objected to 
hf Condy, for the defendant; who stated, that the cj^ptuii 
was' interested to fix. the loss on the underwriter, so as to avoid 
the {Personal responsibility, which the bill of lading attached to 
him.^ . He cited Peak on Evidence, 113. 4 T, Repvt>89. Ld. 
Ray. 1007. Abbot on Shpp.. 105, Am. ed. • . ,. 

Mr. Hallowell relied on the ease of Ruan sad Gardner, im 
this Court, (a) The objection was overruled. (#) 

(a) Ante, page 145. ^ • 

(b) The general rule ii^ that the objection to a witness, on the ground of 
hiterast, jgoes to his credit, and not to his competeticy, unless he be diifcctly 
hrterested; ttaat is» WKf be teseaaltfly be^jfliltdd er injured, by the event 





Hiekf n» FitzsunmoiM* 

The captab stated^ that he, at the request of the plaintiff; 
put two of the ba^ cpntaiiiing ux hundred dollars,' in hit' 


of the suit; or, unless the Tevdiclto be obt»iiied by his eyidenoe, or given 
against it, will be evidence for or against luiSf in another action, in which 
be inay«b« a parly. Any flaMHer.d/^gfee of iaitere^ as that he sm^ poasibly 
be liable to an option, in a oeitain events or, that the vcrdaot may iafluence 
th^ jury iu his own case, being ainulari does net aflfoet his eoespelency. 
The admiiQon of a person^ inuue^tely inteiested in the event of the cause, 
nay, party to it, from neeetsityi as the person robbed* in an action against 
the hundred » the defendant's wife $ oath made on an indictment fqir rob« 
beiy, in an action against the husband for a maUcioua prosecution ; aie ex- 
ceptions to tife general rule. So,^ likewise, persona who become interested 
in the common etfurat of bunnem^ and who alone can know the fact ; as a 
servant, who^ in the way of business, delivers out goods, thoc^ the efi- 
dence, whereby he charges the defendant, exonerates himself from his lia- 
bifity to his master. Peak's iBvid. 93 to 101. So in the cases of Martin er. 
floifiel^ 2 Stnu 66^ 67% and Saik. 960 ; depend on Ibe same principle. If 
won. in the usual course of business, he must be rekaaed. Cowp. 199. 

8o the objcctioh, en account sf interest, may be taken oat of the genemi 
lule, by a counter interest in him ; as^ whero Jiis interest^ in the event of 
the cause supported by his evidence, is counteracted by an equal or greater 
hiterest, that it should be decided otherwise.' Peak's Evid. 102. So, if' 
Ihe witness stands indiiferent, in point of hiterest, between the parties ; 
being lisUe to pay te one or the other; as; if in a suit 'between A and B,' 
Ibr the recovery of money, paid ^ A laC, ftv the use ef B^ G may bfc a 
witness^ to prove he receired it as agent for B. fle the acceptor of a bffl ol 
exchange, in an action against the drawer, to piove^ that h« had no efforts. 
TT, Rep. 480, 481, Hole, Peak's Evid. 102. But, in an action against tbe 
master, for the negligence of tiie servant, the «erhui( is not a witness for 
his master, unless he is released. For, though he is equaUy liable to the 
paster,<in case of a recovety against him, and to the injured person, if he 
Ml t still, ss the master in a former case, may, in the action against the ser- 
ntit, use the vssdict to prove the qaanium of the damages, though not the 
focts \ thb is an interest wliich renden film incompetent. <3 Ld. Ray. 1411. 
4 T. Bcp. 589. 

(fir^en ss. New Kver Ooa^umy. In an actioo on a policy on goods, the 
master and owner was'hekl inoompetent, to prove the ship aeawotthy» with* 
out a release by pUniff ; betsauSi though thia vevdict ceuM not be read ia 

APRIL TERM, 1805. ' 



* » 

Hicks M. Fltatimraons. 

ckeat, in the cabin, and the otirar baft in the hold of the veBiel, 
"under 4he ballast : that he wa» b ie li| ^ to^ near 6t. fki^fungOy 

evideece, in anf action* hf ok agMalt the«>wn« \ jret, the witaefl^ Jhf Us 
teftiinony» seema to exonewta himsetf - fiopi the action of the owner dF the 
goodsy for the want orseaworthineas of the ▼efnel. Peak, N. P. Cases, 84. 
So^ if the loss stated' be hairatiy of the master, he cipnot be a witness for 
the defendant, to prdve the deviation made with consent of the owners, un- 
less released by defendant ; foi^ if plaintiff succeeds on the barratty of the 


HMster, he is answerable to the underwriter. Es|>. Cases; 339. For, if the 
oaderwriteie aufTer by the fauH if the matter, thef iR«|r inaintM aa action 
€x idUtOi against the piwoii whe subjected Itea to it. 

The principle of these cases^ soenw to n^litiate veiy stroagly againrt the 

deciBon in Ruan as. Gardner, and t^e plesenl. lit the case of actions against 

^e master, for i^iiuvy suffered by negle«t of the servpnt, tfie incompetency 

of the servant to rive evidence for the master, without a release^ most pro- 

eeed on the gvoufkl, that the success of the master, exonerates the servant 

Mm his action ; aad the verdict, besides, wbnld^ be evidence o^tbe quantum 

efir\iorytbfeiaa«ter hadT soilahied. Itistrtt^the servant is liaUe to the 

aetiim of tilie same plfiatUf) buly ^4iaa s« hiteiest to act riA of one action, 

^ATticuIaily when the yctdiot may be read against him. This is not like the 

« ease of Uderton' and Atkdmim 7 T. .^ep: 480) or Evans vs. Williams, Idem,' 

^ 481 ; or Staples or. d'Reiiia^ £sp. 3dS : because, in all those cases, the 

• ^ I witness's fiability to One of the parties^ was not disputed ; and, it was of no 

eonaequence to failn,to which ho f^id, or which of the parties succeeded. In 

^ Hie.caaet of Hethers «t. Uton, P. N. P. Qises, 53? and Thonpaoti m. Bitd, 

«ap. Ctsefli SS^ the liabiU^^ of the iMster was disputed. Hb evidenee was 

to emocnie himself from* the chaige of banatry, and having an incompe^ 

tent vessel ('and, consequenlly* tvm ^e chain of the owner of *the goods 

in one case, if he should fail on account of the unworthiness of the vessel, 

and of the underwriter In the ffcher, for tlie barratry, ia case the underwriter 

should be made liabk. 8o la the ease in the test. Th» master was liable, 

by his bill of lading, to the <ow(ner of the SOOO dollars; but» exonerated 

himifelf entirely, by proving a loss by capture. It is true, he Ihlgllt be ftuad 

by the nnddhfrriter, ifhewtt guilty of embezzleniHytthttt nofjuiider eqtut 

drcumstancoo with the othe!t ease* for, t pteaume, tAe aifidertviter would 

be bounds prove the barratqr; whereaa; the 6wacr might rely on the bill 

of "ladiogf and put k upon the mflrter to prove Ma excuse. B^des, he 

woolfl be also U>le ia the caaea befofo men^oftl. 1 dmtbt the sofidity of 

. • ' ^ Nn ' • \ •"'• • * 






HickB m. FitzammoDS. 

hy a French privateer, muA onlered, with his papers, on hoard : 
that, whilst he was there^ some of the privateersmeti went on 
hoard- his ship, return^ two or three times in the boat, to 
the |>rivateer, with articles from the vessel ; i^er which, he 
was permitted to return to his vessel, and proceed on his 
voyage.. On his return, he found the two bags of dollars taken 
from his cliest. 

St. Domingo being blockaded, he went to Jamaica; staid 
two or three days ; and, while there, on examination, be found . 
one of the 1 5 bags in the hold igoiie^^.The evidence was of such 
a nature, as to leave great, room tasuspeet, that the third bag 
was embezzled by the trcw ; but, nothing positive appeared, 
to show whether it had' been^ taken by the crew, or by the 

WJSStlJ^GTQ^ J.J charged the jury. That it was neces* 
sary for the plaintiff to prove hb loss to have arisen from some 
of the perils' mentioned in C9ie p6Kcy, and in the way stated in, 
the declaration. That, as to the third hag of money, it was fof ' - 
the jury to. say, by what means it was taken. If by the French, 
the plaintiff was entitled to recover the amount, as well as of \ 
the other two. tiut, if they thought it had been taken by the 
crew, the plaintiff could no^ recover for it in this aelittn f sinoe 
the loss, stated in the declaration, wais attributed to French 
spoliation, and not to barratry. ' 

The jury found the amount of the two bags only, with inte- 
rest from the demand, or so many days after, as the policy 
mentions. ^ , * , 


tiie XMon fitea by Judge Feteeg; becanae, if the platntiiFhad miscoiicdTed 
his action, by itatiiig a kMS by capture, I do not aee that this would pre- 
clude httafrons^iaf the loaater, ib( a Iobs by a different cause. W. 


• * 


V " ' 

At^RIL TERM, 180«« 



Vule w. PhoBiiix Iiiaiiimnc)e Compan^^* 

Vai«k vs. Phcbnix IxflURAjroB Cqmpajit. 

In contracts of inaiuuiGe, C'X)d ftitfa* a iur, opeiiy and candi^ conduct in 

both partiefly la essential. Every material circumstance of the riak^ should 

be communicated to the underwriter. 
A concealment of facts, matexial to the risk, and within the knowledge of 

file insured, and which the insurer is not bound to know< vitiates die 

policy. , 

JL HIS was an insurance on gioods, at and f^Doti Norfolk- to 

NewbeHi, in North Carolina. Wkaa the oaptain left the bay, 

and after he got out at the ^apes- of Vhrgfl^y the wimI bUm 

ye/ry hard. Captain KenriS) itf « vessel destined for Newber|iv 

kit Norfolk three days taCir, being afraid oi the wedther; and 

whea he arrived at Newbemt the waDond ^vessel had not ar- 

*Tiired. Tha plaintiff endeavovrcd to §et fab gooda insnred at 

the NewbetM office^ hut ib consequence 6"^ the^port brought 

by Kenris, of the t^fssel in qpiestion having left NorfolkH>eforo 

hini» hi bad weather, tliey refaaed to take the risk : apprehen* 

sions were pretty gene^A^ entertained, in Newbeen, that a 

vessel was lest* The plaintifr knew that thecause of the reftisaf 

■ ft 

of the ofltee to insuro)^ wse founded oil those apprehensions. 
Hf wrefe to his >gent» in PhiladelfAiay to effect an insurance, 
tkeret hut mentioned ■elhing cf the above circumstances. It 
was not perfectly dear, whether this informiition was received 
by plaintiff, at the time he wrote bis letter, on theb second of the. 
month; but there was very strong ground te suppose he did 
then possess it, or oa the fourth, when the letter was post- 
marked at Newbem. 

WA^HIJ^QTQJf^ Ji chnrgedthe juff. In contracts of in- 
surance, good foithf a fair, opem, and csndid conduct, on the 
side of both partiesi is esscwdsL The tmdrrwriter is never sup- 




y$ie m» Phwnk fawuiuiee Cooqjuiy. 

posed to know of tt\e particular circumstances attending the 
property insured, «tjber tlian b disclosed to him by the assured ; 
taking the risk which the i»siired is unwilling to bear. He 
ought to hare ttery m«Ms of eadmating its exteniy in the power 
of the assured to give ; because, as he consents to run the risk 
Ibr a stiputated considefatson, ttid since the ambunt of the con- 
sideration is a matter of calcnlation, which must depend upon 
the degree of danger^ he does not ^and upon equal or fair 
npund with t^e other contracting^ P^^X » unless he is equally 
ihiormed of facts within the private knowledge of Uiat parly, 

. whicl» may be matcriai to the risk. The rule therefore is clear- 
ly settled, thttt » cooceitoeBt of &Gta material to the risk, and 
within ^e knowM^e of tkm insura^ and which, the imarer k 
m^ bound to know^ Tiftiates the policy. The fifst qesaiiim tkeft 
la, were the facts related \f e^itain Kenris, 'meteria^.lo the 
ffiak? Would a missing ship^ wedeethe circumslancea of tHs 
▼essel^ beinsered attheeame premiam, with one exposed only 
to the cemmoD haMv4^ of aecb • iMy age ? If jmoL enswer tiiis 
aKmMlively, the* neiet euestioa is, were ^ese feels fcaowii to 

• the plaintiff? I do net meae, ie a knowledfe of theot hreiigfal 
heme clearly to the plaialiff | b«t ane yarn satMed vpon. the evi- 
dence, Uiet he mail hsfee beard of ttaat toii ee he wveto his 
letter^ or before it left Newbem. He d6d not weito ler ectae 
daya after the arrival of Kenris. The vepfrt he bcought^attithe 
apprehensions it occasioned in this small terwn^ wefe "geneti^ 
It hsd get to the eera of the new fnenisnoe oftee, an* dtftal^ 
mm s d tfcdicendnet,«iid this wae known jtothe plaintiff. There 
]• strong giound to suspect, from the eridtoiee, that he knew 
A this befove- his letter was sent off.. Of 4Us, however, you 
.mnst judge; and, if you aire of opinien tlmt he did know it, and 
Uiat the fincts were material to the risk^ yonr verdict ought to 
be for the defendaKSr 

i p ne'jwt^.J6mnd /or the dtjbndam: 



•r Oofftai ii. Hofidif. 

litttsst ot 'Gordon t;». *lf olihat. 

WfacK two ittmetltfft^ tile iMM,ori([iital dcriTtttion, or, whef^ofiA is sn sh- 
bremticm or tonmulm of fins othei^ but bolll are t»lten putamscuoosly, 
«i4 aeiitdiiif to oOTWMi uMi^ to bo the «ne, tboogh <fifi«riii|: in 
flound { the use of one for Ibe qt^er» » not a mateqal mignomer. 

If the lume be wholly mktakeiv and repugnant to trutl^ the n^jHioinef ia 

Query f if Henry, for Sfarry, is a misnomer. 

Opention of the treaty of 17M, upon the ezef^lse of leglslktite powers fet 
*o CMiilaartiofi df tiie profofly'of ttMM frfio bad been «ngag«d in hoid- 
Wmk ngwnii» irtir .Pwited Stateai. w wlio nagtecM to. attVMder tha» 

. ■llhM)l^..%biiioalMuponb7li^r)|»t»4ite . 

Harry OORDON, Mbs Mfae« oI tM knd itt %aeatteii ni 
Sm tiHi|ii«». «» the «* of MtfOb Mtf a» ■» ipbU «s on the 2M1 of 
Sferd) iraiPf all AAof the bi^alatufv'of FmnsyWaiia wtt 
Itedo, ^a the IbrflMr.days MMil^g ceitain pttraons tlMi^ii 
ppecitAlf iWDoiK cf high. tMiwA; mbf^ foifeiti&g their escate*| 
.^amlMaJbey iuinaimi ikMNtlToa by # certuB day, and toolt 
their nM ^ hi|^ iraeton ; aad declaring that all persona^ sfib- 
jacta or inj^bifanka* oC ihat Slate, or thoK who hare raal eatatea 
tjwriiini who adhana to, and willinglf asaiat the enemiea thereof^ 
a» of th« UnMl 3lalaa» and whMf the fcyrt nie £aec«tiva 
CoiincU of the 0t«le, hjr HMm pnfidaxiifWtus aMH ;Mm «ii 
lequire to reniar tla^niariVaa. by a em^^ daf tHerein to be 
BMBitioned, to w&tm^ai^ «i the lohticea ef Uie Stake, and abide $1 
their legal trial for a^iih their treasona; and whe,ahou]dnoa 
rander themael?ea ac^oedki^f and abide their aaW tviai»ahoubiiy 
from and after the day Cxed hf^aueh proflhuiwatiaiii atand^ ai«d ^ 
be attainted of high taoaetn ; and Aoald avfer such paint and 
penakiea, and undeagb aD i«ah fi yM ln r in» aa persona attainted 
of high trgMB ottgM to ^; The laarthen ptoceeds to Hutho- 






Vemee of QoBdoa tw. Holidfty. 

rise the Pfetiieiit of tlie -Executive Qouncil, to appoint agents 
to seir such forfeited estates^ and to make conveyances to ti^e 
purchasers. On t^e 90th of March 178 1^ a prodamation was 
issued) reciting the naihes of sundry persons, an4«mong Jhem 
Henry Gordon, now or late an isiiabitan^ of tht State of Penn- 
agrlvaniay and required him hf the name of Henry Gordon, now 
•or late a military officer in the British ard^, now or late of 
Kennet township, in the cevnty #f Qkestar,. who ted'* been 
guilty qf aiding the enemy, and aidhaHng to them ; to render 
themselves to some magistrate^ on.or.hiefore the first of Novem- 
hor Miowing, to take and abide their trialatfi^r their treasons; 
which, if tbejr feil to do, they. shall bo, and ataftd attainted of 
high treaaon, and stand the MnsequfBnces therooC Hmny Gar- 
don did not render. himseM^ m OMnpIiance with tfab pwdsma* 
tjon; in consequence of whitk, Hie- lands in qvdbtiott) afcd oilier 
tracts, were, on the 18th of \ptlk ITSS, sold by auction to John 
Woods, ^e highest bM^ar^ who pa^ilbr thn same m the fiisst 
Asy of May, in the aasM f990^ and on thotesoai d^^c^Mt 
1783, a deed was mde by tiw govetsiot of Peima^vania Co 
Woods, under whom the dtfend a n t claimsi On the Slat of 
January 1783, the Legistaar* pamad a laii» eatitled <^ an Ath 
for the attainder o€ JStarry CvOTdo% «ilMs<lio amnrender him* 
sel^ wd for other purposes." It recitfS) diat Htiery^Gordon 
was seized of certain lands in this StaDa, and it was idBodgcd 
that he did adhere to the aiiemies of this 0ta|av;'and the^ gavem* 
or did require Hemy Goniett to randar bim^ by a eertaift 
day to tafce imd mbide his ^M^ thereby inteodint to require the 
said Harry Gordon tosurrender himself Ico. smd that the said 
Hatry €ior4^ did not surrender himael^ puwimnt to said pio- 
damatiooi and tho said Executive Goivk]^ did dispose of his 
Mil eafetU, in tMia State, as if he had bean l^pdly attainted; Ice. 
4md that app Hca tiaa had beoi made to tttt 4}9neral Assembly, to 
cure (he said misnomer, a«Mo caofiqai thar fights of the pnreha* 
sersof the said oitalaaaltha aaiii Harry Gordon^ It-then proceeds 
to enact, that if tho said Ham^f^ordon do notsomdluiu' himself, 








AFftiL tERM^ 1805. 


LeftMc of GardoR m. Hofiday* 




-^n or before the 34th of fuly foUowiag^ uid abide Ma^legal trial 
ibr higlr treason, he ahal), from an^ after that day, stand and be 
attainted' of high treason; and ahaA anflbr, aid forfeit his esute 
,to batdtspoaed of, in the aam^ manner, aJs if he had been icgaliy 
and righHif calM tifita by the -^resaid |»foclamation : and 
then it proceeds, in the event of hia not appesoiaf , to cob^ 
firm the ri^ila of ^e por^aaiera. The law then^ in another 
clause, declares ; that the^hei^, ^Tiaee^ or alienee; of persona 
whose estates bad been IbrMled, ander and by virtue of procla- 
mations, should not be fierprilMA to»reofrer agaioai the Com« 
manwealth or yurch asar; in consqi^Maoe of any niisnomefa» 
arbere the Goarl -asi jury, beibra whaqn the oaoae should ba 
tried, ahoiM be. satisfied liiat the p^san so attainted, was the 
iMvacm #ealfy iMioded to be c4M apoir, by the proclamatioa» 
Harry Oordan -did aurrendaf iaaiietf' in conseqaeace pf this 
law* He died about the year 11^87, and the lessor of the plaipi» 
tte, is the- hair at law, of 'tlM oldeat'aon a# the said Harry €k>r» 
ildb, who tllad iBUMate, and wittotft iiaaa. Many deposltioaa 
were tiditen in Scadaod, which yrored, libat Harry Gordon, the 
Slither of the teaaar'^ the. plaiwiff, waa haptiaed by the naas^ 
of Harry J and tlM he waa.aHrayv aalied by the liame of Harryi 
and a^t UeorfY 'that' he-came to Ameriaa long beAi^ the Re* 
arolatiatf, and left it i»-lT75 ; and held a military commission in 
Uie armies of the king of Great Britain. Whilst in America^ 
he Uvad iathe>MMihip and oaoaty mentioned in the paocla* 

The plaintiff*a coutw^ coa t » a da d» ftM : that Hairy Gcyrdon 
Barer was le^lttf itiaiiited, l^ the act t)f If 73, and the procla- 
a»htion of 17ai;^t)iat iHarry, and Henry, are different namea. 
They cited 1 Com. m%. 19« Cro. £1. 57. Sas. 3 &tra. 1314, 
where Harry, waa cdM Henry ; and the Court directed Ǥ' 
amendment, which iKaftU h arewhaa a^U Mu a c. aa ia ai y, if they waaa 
the same. 3 Hale P. C< 1 fa, 417. »iiawlk 185,ch. 3a,s.69. 1 
* P. Wmm. a if. Where, in an aac tf ailaiBder, where ihajor-ge- 
nersl Alexiandar G<»don, Lsifid'^ Oqutatool, was atuinted by 




Leiiee x>f Gordon vs. Helidi^. 

though dilhring in soimmI; the uM^f one fiar the oOrari^aoi a 

material misnomer. If^ in common use^ tke names be the saaef 

the person cannot bt miwamed, if dither he vofid'* Gcifltah's 

case is a strong one U^ iUustrtOe the wlh^ Saunllers and Alex- 

ancier, which diftr eotwe^^in aouoASf are atatcd oat to be dis- 

tinct names of baptism ; bjKause, ttSQa(|f(f AUsMlder is called 

^ Saunders; so Piers and Pcter^ Joan and Janet Franciscus and 

Francis, Garret, Gerald and Gemad. . Bat if the oaflM be wholly 

mistaken) if it be repugnant to truths as if Alexander be o^ 

instead of Thomas,, tftw miaoanpr is ft^. Th% questioa thei#- 

fore always is;^are the names different, n^t in siMind, but in de* 

rivatmii or in common use. * No ca&e& dupei^tly in point, hfl(ve 

been cited. By the case from Willis's ReporiSy it aeen^ thai t«a 

of the judges thought they might b&used a&bMng the^saHke., But 

the judges certainly thought them different, in thacaae of the 

&ing vs. Roberts, 2 Stra« 1214, or the amendment would have 

been unnecessary. That the Legi^ture of this State thought 

the names different^ is very clear. 

The Act of the 3 1st of January 178^, Silter ireciliQg th^ 990* 
ciamation, and the proceedisga undei; itt^^iad that £ears ware 
* entertained by the purchasefs of the yali(d||ty of the satei on ac- 
count of the misnomer, and prajriag i» h«i» Jthem umfmmmA^ 
proceeds to legislate upon the subject. Instead| howjprer, of 
confirming the sales, which, would have baen p»Qpert.if thi 
names had really b^en the aaipe in the miDd of the JUegMrtture; 
they do the very reverse. They |taes the law, the titlft.o^ irhiah 
is '< an Act for the attainder of Harry Gorddnf'- &c. Thef «vd^ 
hi^ to appear, and take hia trial, by aoertaki^^; whicbi if he 
iails to do, he is frotf^ ihence to stand attainted, and to forfeh 
his estate, to^be disposed of in the same manner, as if he had 
been legally and rightly aaiHad in tJi^e pfofilamatioo. HerOi 
theny we have a legislative dQclaiatioii, that Gprdon had net 
been legally and rightly uaB«|ji in the.nroclaoiation; and^Q^B- 
tirely fatal did the LegisUfuM suppose the misnomer to be> 
that they afford him a noir mijMMrtu^ty of jttwj^g ISs fifi^ and 

AHtIL TSRM, 1805. 391 

Lessee of Ckndon m. Holiday. 
•* .* ■■■.-.. 

lortuite, fivm the consequences of an scttainder. If lie had ap« 
peared, and shown himself neverta hare owed aHegiance to the 
9tate ef ^Pennsflvtmia^ he oertainfj^ would have escaped those 
' conveqnehces. The Ibrmer attaints^ H done away by this law^ 
unless two attainders against the saifie person, can exist, and 
be in force, «at the same time : ^^, by thkr law he is to stand at^ 
tainted, and to ferfeitf hisxestate, from and after the 24th of 
July, iftie then fiiil to afppear. This, to6, was the meaning of 
the Legislature. For If k was Intended to eure the mi^omer, 
on tKe ground of its Imfnaterialfty, wfa«t had the Legislatttra to 
do, but to coiffm the Mifter attatnder and sales. And, if in 
the case of die King and Roberta^ the Court could cure the 
erroi', by an amhndnrent; could m^t tl^s Legislsture, in tkeir 
ofnnipoience, do it, if they supposed the misnomer imitiaterivA h 
By setting al aside, and dhreetingproM^dings de Mot^, they, in 
Miguage mok emphatic, pronounce their opinitMy that the 
name by whi<^ he hsid'been ciSRed upon, "was repugnant 'to 
trath, and that cbmltoon justice knd humaf^tty required the thing 
to be done over again. This, then, brings us to the considera- 
tion of this law; aad to the a(peratioit of the treaty upon it. 
The sixth article deeltres^ that there ahaN be no future confs- 
citkms, Ccc. The prelhninary articles of peace were signed on 
the 30th of January ; eleven days before the passing of this law ; 
and was recognised, and in fact ratified, by the government of 
the Unlked Suites, aonre months befo're the day appointed for 
Harry Gordon to appear, and take his trial. Upon this state 
of the case, it is quite cnmecessary to decide, whether the treaty 
tcK>k effect on the 30th of January, when it was signed, bcr 
cause it is not to be questioned, but that it din so, at the mo- 
ment it was known in this country; and was ratified cither 
formally, or impliedly. The effect of this treaty was, to do 
away so much of thisjaw, as was calculated to produce a con- 
fiftcation of Gordon*s estate, oa account of the part he had taken 
in the war; to subject him to the meditated prosecution, or to 
expose him to future loss or damages in his person or property. 



LesKe 0^ Gordon w. Holid^. 


If he had appeared on tM 34th of Julf i agtecaUa to tke Mtfeei 
"he could hot have been tffi«d; aaither could jadgmeni paaa 
agaioBt him, by default; the traatyy isteivaiung hcfrec a th* 
law, and the completion of the cooiacatite) Mpeaied the ^Hrmeri 
and prevented the lalten$ for it ygmuaX the lair attainted hia 
B^|«Mi| ttid confiscated hia eatafte; but hia conVictioiH if he had 
speared and abided h» trial, or his feiing to appeaiT. Thia 
aettlea jalao the last poiat ^ Ibr the treaty not -only pcevanted tha 
con&acation of Harry Gordon's ostato^ dtiriog hia |iii| but pm* 
tiacled hb interest mkI «ol^» in the land that vaa a laeaiaplat 
wiUi all the priviileges attending ^ttaitof ao that, on hia 
deaths it might be willed or devised ; <^ he imigiit have alim^ 
atad it. To any that hb interest was protected during Ua liii» 
^oa that it was to stand ccmAscated as agfdnat ^loae diiming 
under him, would be, a fraudulent conatrudtion of the tittaty, 
which protected the whole. Bujt I do qo( think tlMit thia daoaa 
extended to the ctse of p<»aona dahning ncdor^jrordon, b%t to 
those who claimed, in consequence of misnoEmars in the procla- 
mations. But Gordon* was to be sp^ially tri^ an^ by hia^ 
right name, under the lav* I am theroibii^ of q^inion, that the 
vordict should be. in feanor of thn^laifliiil 

. Ftrditt /or jUmu^f. 

« » 

AJUm* Tlttl, t80St 


• ^ 

liuny ttf. The Ship ^ohn & Alice et ilk 

VMnmmtJkM Hvmmx v. Tub Sm^ Joan It Auoi&t WsiTsaiiiXB^ 

Libel on a bottomry bond. — An instrument, claimed to be an hypothecation 
of a yessely is not sach, !f it was giren to the consignee, when he had 
fanH hi UrIiaiMb to seeing the ■dTtiioe» made by him for the Teasel. 

A oomiipMe, lader anckcircumatawM^^cannit cnttr arte a siaiiftiffle eon- 
vttk IfaauwiHini <f the yeaae^ m «it» ^indhim to pay tamat in^ 

The caxgi^ apd freight is subject to the payment of extiaordlnaiy deigand^ 
for completing the voyage ; and the consignee takes these funds cum 
onerti and under an implied engagement tq make the neccssaay advances. 

The master, bein^ abo owner of the vessel, may give a sj^ediic Vfon on her, 
for aecuring advtnoM Mir for m^ |jaM|ia a t 4 but if fliie Ir iwt gfreA hy 
virtoeof liiaBiwrity«i«WBteivitwm<olb»amw»ifypo^ ^ 

Tike master caMnt fagrjtolliMate for %|pse<^i^ifti9g 4ebt; bwi oi^ly for a^YMCc* 
for a purpose Afifoasaiy to eq^bie him to complete hia voyage, made at 
the tipic thfC neceasiiy exi^Ud. 

A bond executed as 9jk hypothecation, but not upon tlie principles whicli 
govern such securities^ caimot b'e enforced in a Court of Admiralty; but 
must be proceeded upon ]|i a Court of Cfonmon Iaw. 

Jl JOS^ 8l% jvaa awoed> oii«.*tliird by Whitesides, who was aJIfe^ 
lannteT) v^ tht other tpo-third» \jif Samuel Hurry. The fiar- 
9MP> ^iNCf ioua to bis $rat voyage to Elng)and, was authorizeili hf 
la^er of attorAOf . from Samuel Hurry, to borrow money on hk 
^ccffimly and to sacupe it by a bottomry bond on the vessel. In 
l%k\f 180% the arrived at Liverpool, wheu. Whitesides obtained 
frote the ^pellant, NichoUa iivriy, ^343 Q$. ^. sterling, Sm 
^tbe disbursements of the vessel \ a^d Samuel Hurry being a ^ii« 
siderable ddMpr to tbe ^)MBent» tbe mastes, to secure so H|uch 
tbereo^ as well as Um abore sum of three hundred and foctf - 
tbrei^pouB^^ and fottftp|flnce» gave a bottomry bon^i) for fiftew 
/imndred pounds sterUn^ on tbe vessel. In November 190% 
the sUp Jipvii^HS yyftWWjrt ber bomeyard voyage to Philadel* 



ifurry vs. Tlie Sl^p John & Alice et a). - 

phia/ ratutaed to Liverpool, with a cargo, i:olisigtl«d to tiie ap- 
pellant; when he advanced for the ^isburaenitinta of Hie vea^, 
d6 1 195 19«. 8</. hut with no security. She relumed tb Phtta^ 
delphia, audT again arrhre^ at Livihrpool, in Juiie 1803^ wMi a 
cargo consigned to the appellant ; who advanced for her dis* 
bunements £424, 3« ^SiL «iid then took a bottomrf bond in 
Jupe 1803, iS 1693 2«. sterliqgy being the amotint of the three 

' - sums of .<£34k3 0«. 4d., ^1195 1^8. 8(/., Jg4S4 3#. W« He alMl 
chartered the^ vessei back to Philadelphia, and wa»to p«f A500 
JcNT freight. On the arrival «f 4he ship in PMsdeipfMa, libr 
the giving the lasfc bond, she ivae libelM l^ Nicholas Iturrf , 
in the District Courts to enforce the payment of this bond. 
Answers were put in by Fro^maa, chiming one-half of the «hip, 
by virtue of a bill of sale, for a vduable consideratioD, made by 
Saiftu^l Hurry before hia h^akroptcy, «n4 dated 2d July 1803. 
AhM by the aimfgpiees of Samuel Huny^ who cosvmitted an act 
ef faankruptcy on the I Mi #uly ttOS. Th^ Diatrhet Court chs- 
Hiissed the libels and there was an appeal to thiv Court. 

Mr. Dallas, for appellant, contentjed, that the sunis advanced 
for the disbursements of the vessel, at the three several periods, 
were for a maritime •c9U0i4a^tion; ^ttl|ias0taafeer had ^^hori- 
ty, not only as such, but as owner, io hypothecate the ship. 
Tharas to jurisdiction, the questiim depends ofr the subject 
matter, not on the locality of the transaction. No objection to 
tfiisibond, that it was taken b^ a consignee. Ht cited I East's 
Rep. 6. Park. 413, 414. 3 Marsh. 639. 6f9. 4 Rob.^Rep. 1>,9. 
2 Id. 192. 4 Rob. 301. 3 Id. 267. ^6 Moitl. 18, U. Vin. 9^, 
n^. 3 Rob. 321. 225. 112^. 3 T. Rep. Minitur 8c Cribhons: ^ 

' BAm. Civ. Law. 71. 19d. 2 T. 'Rep. 649. 2 Marah. 632.' 2 
Bl. Com. 457. 

Mr. Hare and Mr. Chatmcey, for. appeHee. ^le bond was 

given for a pre-exis^ng debt, which' Cannot lay the fouafdation 

fov a maritune hypothecation. The advances made wer^ for 

. ordinary dhburseitients, ium§ not for oalraori^ary neceseoiies. 

They were made by a consignee) wiHi-fiinda in his |ian<h, and 

V * • t - 



Huny V9. The Shipfofan & Alice «t il. 


mh<cw6t-9^§mit^wuer wm pveiMit*. As to the pow^ of tmamjj 

■ t^stoncjiy^a^i giv^a in execution of it. Though Whitesides 

wemm pi»t»0r) jr«t he ootiLd oot>iiid his co-jtfu*toer. GaoeMl 

piNTtatrs inasy Utui ead^^tber; but 9ol'«o in speckl partner- 

«iii]lSyJike the preseat. Xjiongh ihm |^i»wer of WMtesidest* 

iiypotheci^e tde ship be iMim^ttedy yet he could not gcni a 

loadklkne hypothecation, so as to give' jurisdiction to the Court 

^ioSJ^tdxj^mkyi becauf e not given i^ the naftter^p quMd moiety 19 

.a lorcdpi. oountry, for necessaoea fumiahed ; withoul which he 

aflnl^ |Wt complete the voyage. Xhey cited Abbott, 1 1 8.. %^ML 

B. 3. €. 2* ( 1 1 . H^ Rep. fb. 4. 1 Ves. U£« 1 Ld. Ray. S76. 

. S MiMh 040. 5 Burr. 3734. 1 Wills. 103. Abbju 60. Ho^ 

Jlep.*^^ 3 firow. Ciy.L>.73. ithbt. U3. 113« L^ji. Ray. 1S3* 

75«. 3.1a- «W.^83. 

* * 

WASHmQTOM, J, The beod in ^ucstian, was given-M 

the 7th of Xi^y 1803, by the maeter, who was also part ownetf*, 

and having a^ cargo in the hand^of the coneignee, fbr a sum of 

money j^pni^sed of iB340 0«. Ad* advanced by the appellant, hi 

July 18p3»*aiMl secured bjF a bottomry bond then given, forei 

sum including thia, and so much slore as amounted to £ 1500$ 

of Mll9S^ \%§»%if^ advanced by the, same person^ on a aulM* 

quent Voyage^ in Novesahar .^803, and ^^434 25. M, advaneed 

wd[>en thia bond waa give*. Now ttta bond has not one featwre 

VBi it,^hieh fan reaemble it to a maritiiiie hypothecation. 'Th* 

ivi]llied power ^ a mastefn as such, 19» bind the ship of bik 

* OMrsM^ ibr.adva&6eB. aMrie in a foreign c^ku^, fbr< neeeaaaraaa 

ftiniifthedf |o enable him t^ complete bin. voyage, withoii,to»hidi 

it must mbcarry ; is a proeMDn paaely.of eaaiittine Isur s» fte^ 

ducad' by the .necessity of svch a predicament. The nuMtr, 

being aSb ovpier, may give a specific lien on his vessel, with- 

iM reaofting to thia. law. He doea it in virtue of his tkktwa 

ttwner; net by &rce of ip aiitly>rity, connected with the natu«e 

of- hi% ^amploymyit. Viewing Whit^sides in his capacity of 

. i|kaater en^ thi» bpnd|a# a maritime hypothecatioQ^ cannot ht 




♦ V 


Hurry tw. The Bilip John & Alice et il. 

suf^tted. 'First, because it;w«i.^«ii to a comigpflo^ vMi 
funds in lus liands sufficient ta socufe the advaa«ct he m» fe- 
(^ivrt t6 naake. In this situatiDn, he cduid. not 'OiMr «i^«a 
oODtFSct with the af^ent of the c«asigi»ee» obliging ium to piqr 
marine^ iwtead of eommon interest, for liaoneya adYat>ced faf 
iiiw. The .cargo, or the freight, unhere the freight is payable^ 
is subject to the pay<ment of these extraordinary demandst in 
eases of necessity; and the eonsifQee, by rocfiTtng either, taUMi 
k cum ontrc, and under an iflk]iiied engagement to diachargs 
4iie expenses, when the outfits of the vessel may refuiM^ l» car 
able her to complete her voyaye; aftm* tids, he caaiiot «xpole 
Ae owner of the ship, to the payment of exorbHant iateiest, 
md tAke firom the maslei; a ll3rpotbecatioii of tbevesaeL Se^ 
cond ; becausp, as to the sums of £ 343 0«. Sd, ai|d ^ i\9S 10s. 
M. they had not been advanced fov any pui^>ose necessary to 
fabie the master to eomplele the voyage he was «bout to per- 
fonn, at the time the ntccMit^ existed /or making the contract. 
Where was tliat pressing necesskf , which can alone warrant 
the exercise of this extraordinary, authority, in the tuaster, at 
the \ime this bond was given f Sufipoae it once to ha^e existed, 
it had th^ passed awaf . These adymnciss a^y haVe ereated a 
dMi&to be discharged hy..the owner; but, a|i the ftii of iuif 
1103, it was a pre-existang d^C, wldch the master, and' part 
•wner, had no power to secure bf a nMoine hypottecation. As 
ao the sum of £424 3#. 8d., I do not discover , ai|f one cbar^ 
in the account, which' is not of |h« mqet ordinary, kind, aad 
^M>uid in almost fc.rery voyage, becoane an ileto in matmafA be- 
4:weea the consignee and the owners and if the-fonner could 
au H^ sd the ahAp so tl^e paymeflt ef marine intereit, for sacfe 
adMwoes, hypotheeatkm bohds wbuld be the consimt atteochuit 
of every voyage. As .to the power of attorney to Whitesides, 
wdmit it remained ^iiescecuted, on tfa^ 7th of luiy 190^3, and 
^iMt Whitesides acted Hmder i^s miifeority ; it wotfM ptmrti^ 
this bottomry bond into acommbn hyp«)iliecation, to be etiforced 
by the same remedy, as would be. proper in other «asea of 

' V 


APRIL TERM, 1805. 

r ' 


Bwrfy V9, The Ship John & Alice et al. « 

mortgftges) vatde by the owner of personal propertjr, in person 
or bf attem^. If the subject matter of the bond was of a 
mtti^ttiie tialiire>' that is, for .advances made to enable the ship 
to complete the royage ; ai>d if it were clear of the objections 
itere motioned, the master might give a maritime hypotheca- 
tion, without the aid of this special authority ; and if it were not 
of this nature, the special power could not make it such an ky<» 
po^ecation, though it might enable the master to give a secu- 
rity on the ship, to hiod it and hb owners. Upon the whole, I 
am of opinion, that the subject matter of the present suit, be- 
kmgtt npt to the jurifldlctiea of the Court o^ Admiralty. 

Sentrnce ^^firtned, 

KeTs.— 'fhe iteter, for advaaees nsde Ibpttfeamen's wage% previous e» 
afterwudflp lor. the nietatarjf rq^airB and vu/tof iht ak^ dming the iioyag^ 
nay bind his owi>er personally. Abbot, 86 to 91. Am.,^ By the maritiiiie 
law* the master may bypothecAte both sh|p and cai|^, for repairs, &c. dur« 
ing the voyage; which arises from his autliority as master, and the necessity 
«f the case : but not for repairs done in this countiy. Idem^ 95. Not only 
may the master, tmc&reerfmnarciifiMfances, pledge the sliip by bottomry bond; 
but the owners and part owners may do so, in any ease, to the extent of 
their interests. In the Jattar esse, the lender bus not a r^nedy wn the Admi- 
ralty Court against the shlj^ gJi be J^tf in the former, where the master gives 
an hypothecation for necessaries furnished in a foreign port Idem, 9th 3. 
to 101. In the place of the residence of the owner, the master cannot ^ve . 
a bottomry bond, by the maritime law* In a foreign countiy, he may, for 
ally purppse necessaiy to the voyage, whether the occasion arise from 
any extraordinary particular, or from the ordinary couree of the adoerUure, 
if he cannot ot^KTinfle obtipii vt^ and^his binds the viessel $ but the owner 
|s not personally iiabk. Idem, 101^ 102. If the obligee, being unwilling «6 
take upon himsalf the risk of the vey^gei, is oontrnt n^t titdemand maiittme. 
mterest; it is competent to tlie master to pledge the fbip, and the personal 
eredh of the qwner. In this case, the bond was for payment absolutely^ 
and not on consideration of safe arrival Idem, 102. lVes.443. Themast^ 
may hypothecate, in a for^gn country, for n^essaries, where he has n6 
owners, nor any goods of thdcB^noref his own. and camiot obtain them by 
cxchange-or otherwise. 2 KoUoy, 126. W. * 

' P p • ■ 

« 1^ 




r Hon. BUSHBOB^ WASWMGTON, AMociate Juitice of tbe 
BEFOBx < Supreme Court. 

CHo^. RICHARD PETERS, Distiiet Judg«. 

' Lessee of IItlton v^. BrOwk. 

The operation and effect of flie attainder laws of Pcnnsylvflua. 

'It is pteinatiire,'beftire Hie jury are swofB, and Hte tfial commenced* for 
either party to caU upovi the othidr to produce a paper^ vhidi he has re- 
ceived nodce' to produc« on the triaL 

It is sufficient for one party to iuggtai that the other is in possession of a 
paper, which he has, under the Act of Congress, given him notice to pro- 
duce at the trial; without offering other proof of the fact ; and thepar^ 
so called upon, must discharge himself of the consequences of not prO' 
ducing* it, by affidavit, or other prooli th«t Ift has it not in his power ttf 
produce it. 
" The Court will not, upon a notice of the defendant to the phoQtiif, to pro- 
duce a title paper to the land in dispute, which is merely to defeat the 
plaintiff's title, comp^ him to do ao; unless the defendant first shows a 
title to the land. — Merely sliowin^ a right of possession, is not sufficient 
to entitle him to the aid of a Coun of Chancery, or of this Court, to com- 
pel a discovery of papers, which are merely to defeat the plaintiff's dtk^ 
without strenguieniftg the tiefendtnt's. tt is sufficient, in order to entitle 
him to Call ibr tiie papers* to ihow tide to the Un4 althouglriione » 
shown to the papers. 

Evidence of the political character and conduct of a particular person, was 
-allowed to be given, in order to satisfy the jury,itfaat he was not the per- 
son meant and intended by a proclamation, under the attainder laws; but 
not to impeach the attainder or confiscation of property; on tiie grou^ 
ihat the person was not guilty of the cmne imputed to him» 

I ' 

• f 

s • 




Lessee of Hylton m. Brown. 

Tfte copy flf* wllof hnd lying in Pennsylrania, made in Nev-Tork, proved 

. ^faefomUM gmiimaii. of KevvYoik, by one of the sabscHbing witnetto^ 
i*ii9«]i9 ywwwdt <1m* t^ other two witneaaes attested tjie Mme in 4i» 
I^BieBce qC tbe testKtOTy the oq>y being authenticftted udder the seal of 
the SuiTogate's O^ce, and entered in the Begifter Qeneral'a Office* in 

* Pennsylvania; is not admissible in evidence, in the* State of Pennsylvania. 

In an cases, no matter where the will is made and proved, if it concern land 
in Pennsylvania, it must be proved by two witnesses. 

Whatwfll constitute a rendence, m copttii(MiHiiction to temponuy donueil- 

- Jl REViOUS' to tlie *juiy being called to try this cause, the 
_ defendant read a notice to tte plaintifiTs cotinsel, to prodace, 
. at the ^rial, the wiU'df loAsph Oris wold, who, by deed, had ' 
leased the land in question to the plaioti£Pt also, an affidavit, to 
prove that the drigioal will was in ^fe plaintiflp*s possession, by 
his own acknowledgment; It' was ebfeeted, by the plain tifPii 
counsel, that tlie motion was premature, aifd should be made 
during the trial"! I^ecause, the Act of Congress says, that the 
Conrts shall have power, ^ the tHkl of actions at law, on mo- 
tion, and notice, to order papers to be produced, which contain 
evidence f^ertineHt to the Usue ; so that the Court, until the 
trial is goo^e ioto, oamot know ^N^ther it is pertinent or not ; 
and the order is to be^made on the tiiai. Tbe Court overruled 
the motloii. 

The jury bel^g empannelled, the plaintiff deduced his title 
from tbe proprietors ' to Joseph Oriswold; who, ip the year 
X7S9,4eased the land in question to the lessor of the plaintiff, 
. i$.h pepperrcom rtet, lM^«iPenty-one years; hut, to cease, and 
Ve vosd,-'te the tessoi^e^coni^ying away (he same by deed, or* 
J&sposingoflthy wHL * 

The defendant, after proi^ing % posseSBlDn for a number of 
fears, renewed hosmotion for a production of Joseph Griswold's 
' Viij^nal win. To prove* tile kmd hi possiee^on of the plaintiff, 
he;0(Serdd',,only a copy of ^e will, proved in the surrogate^'a 
oBfie -at New«<York, by ao^wiUiess, uid the payment^ of the 
expenMi of juj^lmte, and Sim vofjtoftr .affidavit, ta prove the 




j I I »i 

Lessee oT Hylton c». Brown. 


plaintifr> acknowledgment that he had it. Tliis4|utMt WM ob^ 
jected to, as the other party had no opporta&itf to cidm exa<t 


By the Court, The suggestion of the defendant il atrl&ei«nt^ 

' without more, to authorize him to call for* the production of 
the deed, if the possession is denied, the affirmative must tie 
proved, to enable the pftflf to derive anj^ advan^ge from tiM 
tion-pi^oduction of it. 

- Upon this, the plaintiff gave the will to the Count, and then 
inaisted, that this was -not a caae in which, under the Act of - 

, C<Nigre8a, they were compeIlal||iir to produce the. will. Th« 
words of Jthe law are, that a partj^ may* be compelled to prodfMO . 
m paper, which contains evi4<iu:e pertinent to the isatfOy H 
0a9e8^ and under HreumHi^nceWi inhere thfy might he tomfteUed 
to firoducfi the Mame^ by the BrdttHtry rules of f^^ceeding in 
Chancery. That, tp enaUe the plaintiff to obtain this relief in 
equity, he must show a title to the tiling. Whereas here, the 
defendant relies merely on possession. Cases ci€^^ Finch, $9. 
44. 1 Vem. 479. 35. 3 Idem, 355. 50. Mht 19. 50. 53. 
68, 215. 1 Eq. Ca. Ab. 772. 

The defendant relied, that possessxon was a suffident title to 
authorize the interf^ence.of a Court of EquiJty. 

Washington^ J., delivered the opinion. The roniedy pro- 
vided by the Act of Congross, is merely am^utative; and, 
to save the time'and expense of- a bill of discovery, it onaUea 
iMs Conn to do, in a summary way, what they mig^do, if a 

■ Ull of diacovery were filed on the ofait|F side of the Court, and. 
no more.. Now, if sifch a hill wefb filed, -the Coiirt would not 
compel a discovery, unless the defendant sbpwitd a tiUo to the ^ 
land. A right of po aa eM i o n fisigfat. proleci the party is eject- 
ment, unless the plaimtiff can avoid it, and show a comploio 
title in himself. But, this wouM. not be enough to enable hinv 
to come into a Couit 4>f Equky, ish a discovery of papcim, 
which merely tend to d«fesa the phumlff's title at law, withost 
slivnttheniBg that of the pW^iliffjn equity, It^anot 



of Hylton vs. Brown. 

k» ik» piffly applj^g, to show a title to the paper; - 
fivy if km^9haw a title to the land, and the paper called (or he 
.IP its eatabti^Qieiity the Court may reliere hisai 
ictij^he has no title to the paper caUed for. At' 
laWf ^m4cfendaiit hm^ not only shelter hiauielf under his poa- 
aaartonyHtfthoutdisckMUAg a better title ; but, may do so by , 
ahnxiring a aabMSting titl« out of the plaintiff, and, conse- 
fiteiitly, jout of himself. Bivl, if in his bill of discovery he wer^ 
to state this, or it waa. otherai|M> to appear, he could not bm 
relieved. . • . 

The defoidant tftm pfMMited to show ; that the land pi 
question was .oorfiscatedt f» the land of Joseph Girifwold, dia- 
tfller, late of tlv^-Northem Libartiea of Philadelpklpi ; and had 
been regolariy fbufeiud under, the lava of this Stale, and soU 
to persona, vho sold and ceoiT^yiii to Charles Thompson, um 
der whom the defendant daima* Thia aale^ and the convey* 
ani^ from tfaia Com^ionwealtliytOQk plaice in 1780. Havuig 
shown this title, the motioa t9 pvodiiee the will of JoaepJi 
Griswold, was again renewed ;.bmsitb«^ Court was of ojHnionf 
that the defeof^ant had no right to .call for the will, which he-' 
d»ea not pretend is j(^wessary to strengthen his own title, but 
merely to daisat tte plaintiff's, (a) 

The plantiff's counei ttan.ffaceedi^ to show, by evidence^ 
that Joaepih Griawold, under aiiwm Ihe lessor of the plaintiff 
daiass, was ant tite persoo iaaanded by the proclamation, b9C 
Jaaeph Qmnold bis son; by the examination of certain vnX" 
Masses, who stat^d^thll^ loseph Griawoh^ the fcther, atxraya re^ 
sided at New Yaislbt fpd ogly came here in. 1775, and remained 
fer about eiepes montiiia, tei^ lan^act his son in the art of dia*- 
tilling braiMly* Wheto the.plaaatiff'a dounsel were about to 
read certain <tpfiaaitian% to prove the political character jand 
conduct of Jos^ Oiiaimlii dying the war; the defendant's 
counsel objaeted, on iimiffqua^ that thia Court and JuryweM 
p»ecluded^ by liQr of Pmim^iifwai fmaaipguiring into the guik , 

(a) See Fpnb. 46^ which ^lly ttipports the opinion of the Court. W. 





Leoee of Hylton va. ftxyvm. 

% • $ ' 

or inaoi^eiice of the person attainted* The Couft oUeovod^tiHtf 
the evidence now intended to be offered, was proper, net to au- 
thorize a decision agsinet the confiscation and aale, on the 
' yonnd, that the peraon was not gOilty; biit as a circi 
combined with othecs, to satiafy the jury, that the person, 
^estate had been sold, was not the person named in, or intended 
by, the proclamation. The defendant, after the testimony was 
gone through, offered in^copy of Joseph Griswold'a ' 
will; proved before the Somig|ite in N«w York, by one of the 
subscribing witQesses, who jsIso proved, that the other two wit-- 
ttsssea attested the same, in the ppiaencg of the testator, aa- 
thienticate4 by the seal of the Surrogate's oflBice. This was 
opposed, teaatise the probate' was not -confomiaUe to the laws 
pi Pennsylvania. The Act of 1705, declares, that all wiUs in 
irridng, whereby any lands, tenements, or hereditaments, with- 
in this provtnoo, sltf^ be devised, being proved by two or more 
erediUe witnesses, on their solemn afBrmations, or by oAer 
legal proof in this pvavince ; or being proved in the Chancery 
of England, &c. or bdmi^ proved in the Hustings' or Mayor's 
Court, in London, or in some manor Court ; or befiu^ such as 
^ail have power in England, or elsewhere, tatake prohaiAof 
wills, &c. and a copy of such will, with the proheie thereof an- 
nexed, being transmitted hith^, under the public or oommon 
seal of the CourU or offices where the same <have been taken 
er f;ranted, and recorded or entesed in the Register General's 
office in this proyince; shall be good. Sec. to pass lands here, &c; 
This, copy was emeiefl in the Registe«;6«end's office here. 
The plaintiff's counsel contended, that hf this law* the proof ' 
of the will, wherever mado, mwt ho4>f ttro wteeitds ; sdthoogh 
it is not necessary that thep ahonM he aubscribing witnesses ; 
Ibr such are the eniMsa words of the law f whereas, by the 
Statute of Frauds in Engispd^ whe»e.^toof in die nOsmer this 
will was proved, is flowed, reqi«rts osdy, that the three wit-* 
isesses s^all aubscribe thoir ngnsaa itf the presence of the testa* 
tor ^ but as to the mode of proof^ jjf, is hA op«Q to the cocgimon 


l> Ki 

of H;^ltx>n t». Brown. 


iMT iM i bs» -of fvoitog any written instrument. On the other 
«Me, iTfMB Insisted, that the £ur construction oftiie law is, that 
jfthr w8l be proved in this State, there miiftt be two witnesses { 
"km If pftfred elsewhere, it is sufficient iT it be proved accordin|^ 
•» iht laws of the country where it Is so proved. 

Judge Peters, having coiBBalted the late Chief Justice Ship- 
yen, and Mr. Chew, ft fm arty Pfeodent of the High Court of 
Errors and Appeals in Piiniiiii|inaiila, mi to the common under* 
standing and practice of the Stat6, mthis case, (for there were 
no cases cited, but b Dalir S. 6^, and 378. 28af which wbre not 
express, and Mr. IngWHC and Mr. Lewis differed on the prac« 
' lice under the law,) and beftig informed by them, that they 
ttever knew It questioned; but that in all casefe tw^ tritnesses 
were necessaiy; the Court informed the Bar, that the wiH was 
not sufiicleii^ proved,' to authorise a copy <»f it b^g read la 
evidence. If the law had' net uniformly reoeUred this construe- 
tion in practice, and the.cemmoii understanding of men, the 
correctness^ 0^ it might hwe' bten doubt/ed, in consequence of 
the r^ietitionof the words «<being-pc«ired;" which would seem 
to make each cHsjunctive part of the paragraph a new sentence, 
UMKHHeol^d with the first, which prescribes the mode of proof 
in this State. 

Mr. ]>allaa ewnai enoed the iwiiuung up, and made two points} 
iirat, that Josaph^Griswold tke eMer^ w«8 not intended by the 
jnoclasMtloii ; and second, thai 1m was no^suifieiently described 
He reiM on the^evilieiioet which^^proved^ that the Jsther always 
resided in New Toffc ; wm never here^ but for eleven aaonthsi Ib 
1775, ai^ 4 776, foequafl% within thsrt tbaai roturniag home ; that 
iie came htmitf a special jftiHini; Ibnl he never adhered to the 
jenemy, but aeted ^riag tBe r et o l u tid to ^as a pjeac^able citfoen. 
That the ^roelaiaatiofi desoribes him aa%4tog late of the North* 
ern Libe«*sa; hi; the CMttf ^ Philadalphiaf and State of Penn- 
aylvaiila.; Wteeas, henevtr was her%a^sr Pemwylvania became 
a Stater, and nlfever dM^lnhabit-tli^ Monhem Liberties a£ all. 
Tha^ this deacriptiiNMNM Juaay h iGifaiaold the son; of eotfrse 

# f • ' - 

• > 


Leaee of Hyiton tw. ftvwo. 

t]i« former could not have been meant^ nettlMr w<> ll^Mift*> 
CMBtly de8ci^>ed. Cases itited 1 Daii. 53. ChapiMMi^ oaaa. 
60 Bnffington's case. 1 Wills. 164. I P. Wms, 613. BmtL». 
I Stra. 51. 60. 594. Saik. 7. 6. 3 Hawk. Ch. 46. a^ 4w Cb. 9& 
8. 130, 131. Ch. 3S. s. 69, 70. 4. Burr. 3S63. Sfcaw. FlNrk 
Gas. 50* 3 Hawk. C. 33. a. 106. 100. 

Tlw Court ask^ the pianiftiff'ftepuiiid, after* Mr. Dallas had 
finisfaady and one of tfae^ diiiiiidawi^ii,iConnsel had partly ottered 
upon the argument, whether, they meant^ contend, that the Act 
of the 3 1 St of January 1 783, wl^ch oured' ail misnomers uidde* 
fects in prior attainders, was invalidfliid bf the preli^ninary arti^ 
cles of peace ; 8in<;e, in the opening, this had heed hinted at, and 
the feuAdation laid for the obfeotion,' by refecring to the period 
at whicli thp treaty was signed, made public, and ratified# in tUs 
country; but that no notice had been taken of it« id the summing 
up. That tbe-vattdity or inraUdity of that law, migl^t have a ma- 
terial effect upon the decision of this cause* That this point 
was not decided, in tjbo case of <Go«4^ v«. HoBday* at- the last 
term; because, the di^ftaad for the appearance of GordoB» be- 
ing* long after the preliminary articles were rftiftfid» or acted 
upon, by our government^ there was no necessity to decide it* 

Mr. Dallas, to prove that the treaty was complste before the 
passage of this law, and fona s qwontty «voided it, laid down the 
rule; that unless it bo postponed till the fatiftMion, it takes 
affect from the signing; it is bilking on. the gpiv omaie^U from 
that time, Aough not on ii^ifividiiais^ *tiil mac|e pnbtic* He 
d«ad Vattel B. 4^ c. ^.' a. 34. p. 647* B*^£!. 13. a. 156, ISJ^ 
Martena 333. Giot, BwS. c* 11. a. IS. Ikrk on Ins. p. 75. Rob. 

Kep. l$l,caseoftheMaBMflr,^4yiianary 17d4,QMf»e6$recoffik^ 
■lending to the Statea, tlie restoratfcn of oonfisoaied estates, be- 
tween, the 30th Noyomber 1783, and the «i«tifc«i(isn of tha 
treaty. 3 Vol. Gord. Hiat M3. Correapondsoce bicitweeo Mr. 
Mferson and Mr. HaoipBOTd, p. 13.. 15. 34. 41. 39. 38. 48* 
Vati.* 3^ 3. c 16. a. 6. 36. 339. 
. The Attorney Genoral, and- Mr. Ingecsoll| for defendant, eon- 





^enuB of it) to 
i from tbc ^-. 
n of 'wMcbwe' 
^ Annual He' 

£». Tb«t-^e 
EMty between • 

^efliuwio m4 
(up tOAp^l^ 
BiftlMtlii* «tr 
too ht^MV, 

— 1. 



Lessee of Hflton vs, BrcNMm* 

fttctered, that Joseph Griswold had committed tr«ftBOD, bf «d- 
heiing to the ^lemy within thia State 9 because, it la •• aUftad 
iil the proclamatioA) which became a sentence or om^ittimLMf 
faia tion-appearance. 

That the Act of 1783 was not a4aw of confiscation, tot meiw- 
ly a confirmatory 'law, ^nd therefore not' eontravoil^re of tiie 
treaty. * - 

But if it were, atfil, the Act ttfthe 2.9th of March 1779, pn^ 
lects the rights of the ]turchl»er; diough the attadnder ahoi^ 
be 9f oided, for error or any other cause whatever, exeept as la 
a paramount title. Btt the plaih<i^8*i$ not^suth an enef he- 
cause he- claims under Joseph Griswold, the fiither^ who wn 
attainted, aod his estate sold. f 

Lewis, in reply, ariswet^d all the points made by fiie deleatf- 
ant, asid pressed thte one of whkh he gave notice, viz* diat the 
forfeiture is made the consiequence of the attainder, and conie* 
quently, if that tfttsaftHer \fe invalidated, the forfeiture cannot 
be supported. Th6 Executive Council' acted uptea ^delegated 
authority, which was, to ca^ upon all persons by name, hihabit- 
iuits of this Sti^e, or who had real estate here, and who n^w tfa, 
or hereafter may, adhere- io the eneiny^ dy/ointn^ their ^mrmk*^ 
t^c* ; not thHe -eharg^ed with doing theav things. 

To support 4lm attainder, ft^D, It tfhould appear, that Joseph 
Griswold, the HMher, did, then or thereiafkf, adhere, &c. ; the 
"^contrary of witich appears by*ihe erideMe. In Bngland, in 
cases of this kind, the greatest strictntvs ia vseily in requiring 
pfooi'^fmkTf thhig necessary to fJLv^ validity 'to the Mtaihdier. 
FdBt. C. L. Harv^'s case. • • " • 

' , M^SfflMQISOM,' J. charged the jury. This ft a cause iff 
ctfisoqu^ce, and attended with cqAsiderable dilBtiflty. It hH^ 
bean argued wMi great ability on botii aide^. Miny preHliAr 
«irf quaationrliave beto discussed^^did dlipoaed #f ; by whM 
flMana it wilt now be ptO t at od to the jury, iMbwed dcnrnM 
^'liftgle point. 


[' »-• 




OCTOSEl^*TKRlf^ W». 



Leasee of Hylton t». Broiff^/ 

' ' T — : 

' 'Tou wiH ARiobs ftooi your muMfsyVvevy attempt which htt 
been nuukcto enlist your pas^ons, on- •either si^e^ by the sup- 
potid buiMup wbUk the plaintiff or dtfendaftt msy be ex|K>sed 
tof hy a verdict ujifavourable to his pretensions. To correct 
milidByjqppeals of this kind» if they disgust not, can never be 
l^c^esslttl. We nmat asoertain the material jhcts in the caifae^ 
aid the law 4»pljiiBg to'thiSas ; and then declare the result, let that 
1m. what it may. As to Mr. 'Ri^mpson, who, it is argued, will 
|ie 'Without redress, should he na«r liul^it seems to be agreedt 
/4tttt if the plaint^ recovers by a tiile paramiount to the attain- 
der, that the door is left ofMii for him to adk and receive com* 
peiMatkm from the State. 

1^ The Court admit the right of the State of Pennsylvania^ to 
^pDiifiBcate the Estates not only of its own citizens, but of non- 
lesidetits wli&Cttled to'durmnder themseh^s^ gi confomiity with 
(he requJMlions^f the law of March 1778; and we mean to ea- 
force that aifHioflf y, add the MibMquent laws, according to the 
^ue intent and meaning of them ; wleae we should be of opinion, 
tiliat any of them ate abrogatf d by eeniAf ^^«rior law. 

Thelfltcts in the case, and* which^sMM not to be disputed, 
^re all follows : Joseph Crriswold,. thje father, i¥hose land was 
seized and forfnled^ alw&ys, fisbjm the moment we hear any thing 
of him, lived in th^ State of I{»W' York ; was a married man, 
and a father. He cwried on his trade, wbi^ was. that of a 
dist^er, in the ti|^.^New. York, from the yeiar 1759, a(id be- 
fere^ until< ]n»r 1776; when he lef^ that city, and re- 
tmd irtthAte family to- his country residence on hm% ^aj^^ 
Having'a apn also, named Ipseph, whom hn wish^ to inatfuct 
il^tlm samMnde, and to e«Ublish io buaineaa, he came to PUi- 
fc|llff%hia in* the summer of' 177«5, limtt^nded by his &mily, 
IHQV^liiig than son with him^ in pursuaiice of Hii^ thp,prim^ 
iH^ ie|e #b|0Ct of tiMn ^t„ he rented a^iB^iUery in the Nortji- 
«ni Utayiiee, whiiMN juntil tl|e spiin|^4)f ^177$, was coodoctedr* 
ynier . I^nipin^ «^ nMMi plio^ thn sw received that instrucf 
t|pg^ vl|i#Ll|||nhl«4 hifAr 0^f^^^, ui cany on a distillerf upsar 


Lessee of Hylton vs. Brown. 

his own account. The father, during the whole of tJie thnc 
that he continued in Philadelphia^ was a boarder 'in Strawber- 
fy alley, within the limits of the city, whei*e Tic lo6ged an^ 
took' his meals, spending itkuch of his time at 'the dtstOlety, 
where hfs business required his presence ; in'the spate of ten 
or eleven montffs that he was so employed, he returned three 
times to New York„ to visit his family, ho part of which, (h& 
son excepted,) ever came to Philadelphia', to remain or to \brt 
^ith him. In April or Btaf 1776, having accomplished thi, 
business which brought him *he^e, he left Philadelphia, and 
never returned again into the State,* to the knowledge of amy 
one of the numerous witnesses who have been examined. "Hii 
political character was that of a loyalist, although it does uttt 
iftppear that he ever was guilty of a single overt act, resembling 
treason against hfe ctountry. He was nevertheless arrested upof| 
suspicion, by order of the' commander-in-chief, and sent to Con- 
necticut ; where, after remaining three or four months, he was 
permitted to return io his family on Long Island, under parol 
of honour, to behaVe tilmself as a good citizen during the war. 
This promise, it docs not appear from any witness, he ever vio- 
lated. He continued quiet; inactive, and inoffensive, during 
the rest of the war, so far as we have received information re- 
specting him, from the witnesses. We ftnow much less of the 
tiistoiy of his son. He continued to live In Philadelphia, after 
the departure of his father ; and at diflferctrt *]^riods rented two 
"distilleries in the city of Philadelphia, where he carried on the 
trade In ^iKich he had been instructed ; iiot as an apprentice, Imt 
as a principal distiller. Whether he lived in the City, or Lt- 
l)erties, does not appear"; firut We find that he tharried in Philt* 
delphia, some time in the year 1777; that he continued his re- 
sidence in this place, until the approach of the'BiStish armf. 
He went ofiTin American unifbrniV stnd became a resident oftt^ 
State of New Jersey. He was reputed a whig; yet we find, ft 
'November 1780, that he i#afc ap^rbWfended by a warrant from 
the Supreme Executive Cowdf of ijm Stitte, upon ^ <3mrge 


itjr. for lu good 

kg the ScprcM* 

w- lAo have rta.1 
mR iMreafter id- 
i wt n tui u tkmi- 
1^ mi^liitntK of 
_ -Ji'l'l^g^ ^ •tendivg «t- 
M|s3ildiea «f4ratMni and 

8 uncngst otbci^ 
£l the isthof Aai 

[. lafaM, to wfani 
Confer, k wui* 
a«iM'irM,'t» am- 
S>nRU yufcMMcd- 
fiier of Joa^ ths 

^ u lb t)« diciial. 

and which, if de- 

. Ib the Inr of 
It of the 

) declsre*. Uwrt if 
error, or fi>r any , 
^auift a ionajUe 
|h« pArchaMT, sbiS 

■9 UUM tboM IBCIko 

titj ahall be indcia- 

[tfais Acti Alttd*- 
^ attaivtwl traUor, 
b1, as if tbia lair had 

ti^ claiming uadar ' 
huidi and his land 
,f^i gnat die pDn^aaer, 
^SBI. TU9 argument 
fi'deftodant aaicKa, 
StkMidenfivB. Bat, •' 
Ep £Dj andifhcbringa 
KtjoBt It^a no ar> . 
gicvptipBt became ,^ 
t br if 'tUa tdnd of > 
E4b ^regiw^f as it 
tea these pat- 



_1t\* " ■: 

J i S fe i 

||i» poiMB«f <riev. 

EM M to be 
lyctf dwm, 
{rnredthat treaty 
areto'be insert* 
If posed eo>- 
ifhich iaoMW be 
ii tt i# jftVfi aji^^'btfVMVI O^eat 
i^i »£«!^^^^-%|.iM rndf to coii> 


" 65 

BZ M|Ct SMNlrAnM the 
»l tiaiptn, but h «M dk 


ma«*Pr— ij 
•Rit is BMf»i^ 
bMd« on tMad«r 

^ auBpendMl ttl 
pi giim ; wd frvM 

Eof ownda*M«l, 
gtio»9f ihetMMy. 

■n and HolLuuL thu ts 
IgMil ind ntiHeit, 

wid An^c^ were 

^omsiap inkll 

ifiu ttedRf; ws 

■ntunt ruifi«l,tbs 

'ht mtttuioo i* 

under wUcb tbc 

im^nt is bound 

linisteFf upliesB it 

tbanty." But a 

^ms ButhoriiMd to 

tind, firvin tbe time 

^Mtz&iaod, tfacp, to 

tern SrvM JMf«iB 

EMqumdr tt^ *b 

^KU Bfitain urf 

pcaed wit and wu 

il no wMner. . Ca^ 

rof iL. Great Bo- 

gra 4**"""* copco:- 

the Uaji«4 &taUs 

BtioB af coB&uated 

tr* *'— ntKwM be 


tutqwu^ve be«D < 

. JaffmottW 


ipalfr, th«» 

SUt, arilbaBt read- 

Bf claim an advan- 

Cdinired itj but^ I 

f muaetT in tbo pro- 
tptiou. He is called, 
tin hii** ; t^ad equally 
■ ta be iff die Noiib- 
un there ; butt upa« 
(me tima, if the de- 

Iin. He it detcribed 
}£ this State. Not, 
tant of this Slate v ' 
ted in the Sute of 
familf , which always 
3ft, afid remained fov^ 
Etted his family tfanw 
^DCH which occasios- 
tbia dwdliog in Netf- 
Siduct fumishea com* , 
pdi fllvKys continual. 
^te than I an, wb« - 
I or any other ftawim, 
Rece of biisineN, aa4 
^t a capdous objec- 
b importMit, la twq 
arb conteiaplated by 
BdiiD the.' Sute, nA 
Ced out of the StsU, 
ter wetf iiueadbd t* 
S kare baea dcscrJba^ 
B>b they lived, or a« 
aaovi' the descri|iti«i . 
>>«B, in all respecti« , 
gned Um &Uicr,,wV 

^ as this, the juiiMt ' 
Bwd, that the petaon 
Q) dgicribed wilh'weh 

blBbehaviour of « mn» 
^ving « sailor mode- 
{fr madnoqi coaduet, 
ifaidi. vd of ctnn^. 
ftao for iBtibehtri0ur ' 
j^trojr t3l Bubonluift- 
trd the defcwdaw not 

^34> Muter mty give ^ 
■ci*I>f what Ikuh plutttiff 
lljr. He caiuwl give if in 

Bug** ■ " 



i ,! :i N 39 H H H U 

jl 4 =J?! 

^ H 

i1 -1 ■» 


[^ ;i 1^ ^ )a 

" '" ^ y SB 

] .dcoduit, oBtil aft«r ■ 
(pes pratumed tliflt 
&e,>nd>equieace4( ' 

it, ibtf wdhU hwc 
thshouM ItafebMB 

CmUdbe 15000 (M- 

S C fi 

tort of ideiee^ bftve 

lou^, if ni 
ciicumrtances w 

lot, iintil )«3t flight,^ 

the award; the - 
rh.the VBme reason' 

! ' ■ 


t* t , 



h » 

M 1-1= • 

• » •!§ be defendant ought to 

nabilHy of the pv 
Jyitice of its diihoDDor t 
^ A, the clihn agnint 
^ (tod tTDund ftr rcXof 

i' ic ii^iiiii 

MQMi the dciieBdnit 
gt' bw, and that Om 
{Die Bs'tf« now 
B the charge of bm- 
binsd, and a slip om 
>cauw wu set dowo 

:thu & verdict and 
Ee4|«Uf, uileH' the 
QwT. Ch. Prac.361. .' 
tfeli«f. Pr. Ch. 233. . 

H ?»* 

is, tBe 
3n.' the plc«. The 


^id^ tMuwt be Aiplae«4 
OOxt tidB, dtbei legiV « 

ttecial wimnt, bom IfSS' 
ktfOt Oat tinM uadl MO 
Cupon to do iu U mffidul 

^1nmM,i9W)t iM 4a* 

Egt aptlM obtuni tbe fini 

sauted, .beyond the pcAtA 
^ ft fiftfarcHt £Ntic» ■■■ ' 
An v«&^ and — ifT* b« 

^h of Marcji 1T«s,a 

J^eaaee of Goraon w. Kerr et ai. 

in r<wiwirtmttM > of 9(onrlQi» fmidami to tke piogri^tarieft » md 
it PBcited a p||||r warrsAi* dt^ted » jrsi, whkh had not be^n 
C)M^ut«d^ Pn the 2d d^ M«iy 4762, tk(U ifaiTBiit was surveyod^ 
flb. 90 td ponprehend tbe lajid in questioo; aiut.oo the 13th 
S^pteoibq^ fellowiogi it va$ duly returned. On the 14th of 
^^^ %77(t9:Mk^9ad PetarS) iA coaaide^^ of 3000 acres irf*- 
||MAi ^gcaotcd him by the projirietarieay in another place^ re- 
l^a*^ to them, as joint tenets, Us atglii to Ihe land thus 
atirrefad for him. On .the 17th of May, a grtint was mada 
$p Harry Gordon^ (to whom tjie i^aor of the plaintiff is heir 
' 1 law,) for the above Jand surveyed for Mr. Peters, in consi- 
deration of JSMQ. Harry Gordon devised the^land in question 

• to his eldest a«Pi^ who dying without issue, it descended to the 
laasof of the plaintiff. Till same eyideoc^ in this as in the for^ 
4tier i^use^. Qkf^of^e^ p. 235) to prove Uiat Hi^ £|iii^ of^e 
lessor of tfae -plaiatiff wib (^riatened and known by the pame 

* of Harry J and not Henry, The def(Nidant set up a title to the 
land in question^ under a warrant to James Rankin, dated 3d 
JFalAvaiy 1755, for -300 afsrea, to in«|u4i» the White Hunter's 
^Iwif'a^d tojpMljpiA the land of James Lowvjr) vha^ on the same 
4igr,'t0ok out a.;wMqp^ for 3op acrea^ to inciude Fraiik||0wn« 

tt did n^K fifciir, tMlt aoy ats^x^pt was OMde by Rankin» to 
f6t.his Hififtot eaec^iked, um^ the year 1765 ; when hia-afpsC . 
I^irfy» applied to a deputy mveyor to execute it. WJian an 

• ^ ft 

' tbe gcound, the aunreyor w»s directed to lay, the w^frant o% 
limp Ia94 jAjqut^tiooi which h« fefuaad to do, becaiia^ it had bean 
Wbt!ft««nrif«A for Mr. Betgp. Thb a^ant airf^Md to |iAve it 
aabaciilad mt a piece oi kuMi^aMNF^- ^ ^ ^^' Lyoaa, lying 
4»etwepii Mmi Lowry 'a si|tvey^an4 tbat.^ M& Peters* NoChing ^ 

* '*.therelbfe wae done in theJbusinesa; and k Ad i¥it appear that 

Hankin, evec, after, did. any ttung to complete his title. It 

appeared that Aanataang vpa tb^^ent of Mr. Peters, ap4 that 

> t» ri» waa hi s H BPi r to aiigyy^glhef warra^ia; miA that in l76i 

. h« liaAdsaeiiif^ tMut Raal;^ l^d % warrant for ihe ^iaiul where 

* the WUte B|W||ar*s Cabiar yraa; aii< wha^ it.vas^proved was 
^^ithin the swrv^ made for Mr. Peters* 






Lessee of GordoB tw. Keir et aL 


The defSendant' offered a stinref under Rankki'^ wammt^made 
by ifarris, a depQty smrveyor, fA* a diffSrent diMrid Horn that in 
which this land lies, under a special audiority frona the Sur- 
Teyor General t who directed to lay it off according to thexalfs 
of th|5 warrant, and such evidence as might be .offbred on the 
ground This was objected to, as a survey; becauac jilade by 
« deputy out of his diitrict, which is against the law pf/the 
State ; and as a deputy constituted for this district, it was said 
to be equally ineffectual ; since, no deputy could be app<^ted 

by the Surveyor Genend, without the appit>bation of the go- 



The Court declared that this was not. a legal survey, and 
therefore could not be read as such ; neither could it be used ' 
as evidence Ittf ne^ to show the location of the warrant*; be^ 
catflfe it wM made 191 cadftarU evidence* Eut that Mr. HarriBy 
the siirveyor, might use it as a memorsoidum, to'^how the jury 
how the land might be located, from the calls of the warrant 

On the part^of thedafendant, it was obfedted, that the plain* 
tiff had BO titte to tKe estates of his fathery having been confih^ 
cated» They afgued as cforme^ly, that Harry and H^iry are 
the same name^-and as an additiKmal authorityto" those cited*in 
the former case, relied upon 3 8ta. Tdala 310, where Henry 
Maitin, being excepted out of the, act of obtiviop, urged that 
his name was Harry Martoi, but not allowed. That if no mil- 
nomer, then hia attainder was vidU, and could not be, and wis 
not, aet arfde by thft Act of the ftlst January I7at, as agamiit 
the purchaser under the itiMder. 9d. It was argued, that 
the defimdant was ptevented by the Indian war, i^hich con* 
tinued till the treaty of Farijij in November 1762, and indeed* 
afterwaids, till 1764, wheh peaee was concluded wiA die 
Senecaa and some other tribes. That the refosal tyf the aur^ 


reyor, in 1765,. to execute this warfani, euiplittd- Raiikli's 
title, as much as if he had obtained a survey*) i)dd'ht alky rate, 
Gordon waa bound by the notice )o the ageot'Of Mr. Peters* • 

. I 


*#• • 

OCTOlMft T£RM, iiM. ' 






Lessee oH^kaddii «v. Kenr et fd. 

-*-_ ^ — ^ . 


These feiite jf ere ftk ikfnMtit^F the fiuntilPt eamM^ 
who relied ; ftat tite ecfAity'set tip by %b Miepteits' oetitiself 
V08 dee^voyed. by ^a(b long ftrhe^nodfe e^ the |i#t ef Raakiih 
. to get his trict tuipeyed. 

miSOMArOtWf, J. chsErged 4lie jsry. In Ihe case of Oor- 
4mi v^.'-itoiidayy I entertained nnnedoahisy whether Harry andl 
Bcary were'^e same name ; my nund rather incHned to the 
opWon that they were. I thought my soif however aitthorixed^ 
in Uqring hold of a legishtite declaration, that they were not 
the same names, and that a missbmer hid taken pkce, s«lfr> 
cient to invididate ther attainder. 

tliis of^tekn, in^he present cause, has been ooea^ted hy t$k 
argnoi^t not thought of, or* used in the ibrxker, lahich is, thnt* 
if thef« was in fact no misiunner, the attainder was cemflete, 
and the sale of OeMoaIr estattf<tSndev it so eatirdy valid, that 
the LegisUitore eoi|IAiM|t, in 1763, defeat it diveetly, or by the 
declaration of an bplnleg^ wUch waa solely of a judicial nature. 
This objection, I ^ppos^k ieiun4ed, upon ^e ConstitutioD of 
4iie Stitfie, thoughH wits not'Vead, nor referred to. Bsit be this 
as it may, eres that Censtitntioii must yi^d 'to the ti«aty of 
pttace, wlfMHia supreme.' The Vtifk Misle ai^lates, thaft 

• Congress ahoald eaiMatf y recosAlpMid to the 4ta|es, a reviiioii 
sjl. their eoofiscadiio laws, so as t^ asnder them conidK um t»iifc 

* jgpMce and equity, &c. and li^ould also recomnMod to them . 
the re^tatdE^n oftconfisoiyed eitat^ T^ was ba* peualdwid ^ 

. 4to an idle ^^Mporisitti, but was inieaNled to te eiectiaiil $ fwvided 
Iht^ dtfTereiit Aates, or ipf^ eiMtiemr^'Mt .dtqweed to comply 

' ' irftii ^e jrebommendatifntf If the Slaeas thought proper to re« 
i^otl^, \hm power to ^it grew out of ihia treaty ^ and so far 
neutralia^ ab/ hrtide of thdr CoMlitntion, inihieh prohibited; 
hi oAer caseSi threftte^kn of #ieh a right. The Sthte would 

^ 'no iMtA mi liaelf cslnpelled^<o make compsnsfaion .to the 
pntehasees,' but their pMier*to rekof^'€6uldhot, 1 think, he 

f questitined, IC .they codU reaipfe absototel)| they cauld do 

' « 

j»» ^ .P£KN8T).TA1IU» 

» ' . ■ ... , ■ » . ^ ^*vmtm 

Lessee of GccdMi w. fLeir et «!• 

mf oHier Mt slwtt of diat» mk itjjj'ipt to Wtt4t tbe MuatkMi 
of Ui^ie wiioi^^HMIfft |i«4 teen cnil^y^tnl ; ipd of cdun^ to 
dedtro ttetm thia cm^ »iiiimoiiKr had takeo.placfti I thiii^ 
that this law amoufiU to the graating a MV ttitti and tb» aet- 
tiog aaide a former attainder. , 

Aa fb9 the rigk|a tf tte p jityws in OJa c^vae, this will, rtuprnrt 
tppn tbe £ict% whkb have l)ecn atreadir atitted* U{>oa thfi% 
Uie lesacM' of the plainiiffi app^Eurs with a regvlar and* m«s«> 
oeptlooable l«^ title to Ui« l%iui m question, it wlH noc i^ 
after this, fbr the dtfend^ to ^f upon hia poaaeasiqo; bii^ 
Ika muat ahow a betirr title» e^^r legal or equitable. When 
I say equitable^ I speak in reference to thejawa and uaagea 
«f Ibis Stale. If he rdy nppo aa equitabte Udy^ it muat be 
^Hch ^ a Court of Eqmty woiUd auatm* What ia it? A ape- 
vial vmwnt, 4«l9d k irss^ kept'in hia pocket tiU 176S; and 
then an ineffectual attempt ^iide to aurvtf it; which {ailin§^ 
w^ hear notliiiig farther of it, or of Rankin'a pipi9nsiona« until 
the order given tq, Harria to «ttrva|f' i^ The n|le in this StatOi 
as it seemed agreed at thf biury i% thot if a piv»» having a war- 
rant, do not uao duo diligen<;e^to survey it»8o i»to aSbr^ notico 
to others, he loaea his priority. We feel. Well diapoaod to adopt 
thin rule, boaaose it ia highly paaiofiddo. I prea«Ki, howovort 
that if, during tl^ auspeoaioii^ athlvd paiaoii, with notice of ibe . 
vavfaqt ai|d iu location,, ahoidd survey the laodt )&« :would ioso 
the benefit of his vi|;ilatee^in censcmuenee of that notice ; and . 
lor thia reaaoO it wa^ I soppoa^ that the nolice'jQf MpMa \xk 
1701, waa o» mueh rthed upon by the defendama' counaal. \ 
Put theK is nothing tothat» teen if Hio notice ha4 been more 
precise^ because noticed Mr. Peters, would not affact Gmtimi^ 
who purchased without notice, (3 Fonb. 159.) The dei||r'<^ 
Hankin is attempted tube oamoaedion ncoooftt of the Indian v»r. 
You have heard what was thedogrpo of dinger, vi surveying in 
this part of tho country, after II'SB; and y<fn eon dotermum ^^ 
the validity of the excuse^ But, after the sui*vey fat Mr. Pelom 
in 1 762, what p|eveniod AanhJn £^m contesting lii^ii^t to the . 




« • 



DCTOmM T£RM^i#06, 




■'■' . '■■■ ■ ^ ' "■ ■ " '^ 

Lessee of CkHcUm ••« Kenr et al. 

land ? Thk mmrijr wm retemcd in 1763. ^he agvnt of Hah- 
kiR had express notice of k in 1765; j^ no esveat was entef- 
ed ; no ofajectiooa SMde; no oom]dfei»l tortke proper tribunal, 
of tlie suppoaod nuscoftdiict §f jthf depsty survefor, in not exe^ 
cuting the warrant in l765t The wkole subject ttsts in pre- 
Mmm^^timj and cancMled fimi tbo4iflM| untii the j««r i776, 
when an innocent man^ not^sbspMliRg this clr«n)r«»ther sleep- 
lAg title «> the lilid^ payi £9(k>^ and tIbtidiM a gnuM. Whafc 
khid »f flg:ure would til3 defeudstit make fai a Cotm df iSquity, 
with bis dormant dtle» against a fair bona fide purchaser, with- 
out notice^ and shielded bf a legal title ? If^ theui I have stti^ted. 
tile evidence JA the cause trulf , there can be no doubt that the 
title of the defendant, camet prevail against thut of the kosoc 

tif the^pli^irtiS; 

Verdkt /qz fUaimif. 

» • 

> •< 

. * 

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k « •• 

♦• . 


• ■• 

• . 

. f 

33& nBNNSYLVAKflA, "^ 

Mm* «t. MUler. 

I l> .ll— ^^fcii^^l » I !■! Ill ■ I ' ■ 

A leeeipt te to iDQfik'iiMney, s€d(f evidenee of a pifnie^ 

expbined l>]r*piiDt or otfMr pfaof. 
tf thep«yiiieiitftdkiioiir|ed|psdintfaet«ceipt» tnraouttobeanoile^lNlJt or 

the Bkei aiidt if the^uno were not paid or received in ntafiMStioo, and- 

tmn out anproductiv€» it is no payiQent 
In order to make audi biD or note a' payment, it is neceasaiy that it be re- 

ceired in 8atiflfibctlon» and the receiver to run all tides; or» where the re- 
' QMdft k faia own, by neglecting to give notice. * 

A. RULE wa« obtained tatet aside •BcxccutioiiiBittedagaiittt' 
tilie'defiftiidaDt, upon the ground, that the judgment was satisfied 
by a note of hand/giren by the defimdanty with an endorsefi 
and a receipt by the plaintiff's atte^nef in fcct» s odoru ed on the 
power of uttoftiey, aftd giten up^ to defbadant* arftiiows : ^ Re- 
ceived from J. Mfller, the snm of I in ddlars, Mt^g id ftDa 
including costs «nd ezpensea of pimperty he s^ld in Alexan** 
dria, belonging to-J. Mase.*' * < 

The note, when it beciiHe due, li«fl^ been piiMested, and 
the. defendant har&ig teeome inst^enl, the plaintiff sued ont • 
execution of the judgment, to set aii^e which tUa motikm was 
made. The afidavit of the plaintiff's attorney, proves Aat ,he 
did not recdlTe tke note as i sAtis&ction of the. debt 'or judgr 
ment, and that ft wi|s not paid as snch ^ or so intended bf de* 
fendant, as he beBeves ; and thftt no agreement was made, 4end- 
ing to show such an intention. The deAod^nt'a attotnej slat- 
ed^ that when the negotiation was made, respecting the note, 
he never thought upon thi& subject, whether the pnfment was 
to operate tfi a satisfiu:don, or merekr ss a collateral secoilty. 

VirA8HfJfGT0Mj J., d^Mrad the ephuon of the Coorf. <, 
After stating Ae above Acts, die rules of law q^p&csble to this ' 


« • 

. •# 





I A i« 

Haze M. IfiHer. 

■I ■ I 

• case are, that the receipt 6f so much U only evidence of a pay- 
ment and 8atiftfac}io]|, takd may be explained by parol, or other 

^ .evidence. This wAi gone into, and we find that the note waa 
neither paid nor received as satis&ction; but, ur constituCe a 
good plea of accord and satbfiiction, both* should be averred. 

(a) The plaintiff, then, received a note, which proved unpro- 
ductive ; and it is clear, that it was no satisfaction of this debt, 
or a discharge of the judgment, unless it were receivjed as such,' 
and the party agreed to run all risks ; or, by hivftfter o>nduct| 
made it his own. 

(a) Carth. 338, note, A receipt in ful^ with full notice, is a ^scharg^* 
fspin. Rep. 174^ dtedliy the counsel, in favour of this motion. 

• • % 

» < 


. ^ 

« . 

• * t 


Lessee of Jftjnes w. Stookey et al. 

Lesskk q» James v«. Stookbt ahd Othbiui. 


Ejectment— The declartiti0ii9 qf a pen»n exercuHog authority, that he pot* 

sesses it, can never be received as evidence of the &ct of his authority. 
If a recor4 be produced to prove a fact, and is found to be deficient or im-^ 

perfect, it candbt be assisted by evidence de hors the same; but t&e pcv^ 

feet tec<xd must be produced. 
Surverfs of koas is Peansylvaaia, made by aider of the CammisaoBas«f 

Propel^, have been supported in Pemuylvaiua. 
A dngFUB made of the tract of land in dispute, and of the adjoinii^ lan^i' 

offered to ahov the boundaries of the lan^ cannot be given in evideaoe& 

because it was not made under the order of the Court. 
The Court refused to %dmit in evidence, a verdict and judgment, given \tk " 

the Supreme CtmSt of the State, in a case where the person who hs4 

lands catted Ibrbf the vammtf bsoftuse it w*s betwMi^ffexentpecaoMb 

and ftpon a difibrait quMtion. 

X HIS was an cjs^meiit for a tra«t of land ui Betta county* 
The i^aintiff claimed tender ft warraat to Rkhard Hocklep^ 
and QChers, dated m 1769, which i%cited> thai: a ibnner wi^ 
rant had issned to the aenae penooa for this land, "^and had* 
been aorveyed, but not Q^mmed* He timn oflisred in enrt» 
dence a surrey ai this la^d^ -or rather a re-eunrejr made by one 
Jacobst who was not %d authorized or commiasloiied surveyor ( 
hi virtue of a latter 4o him fremihe Sulreyar Cvenaralvui which 
he stated; that, al Ih^ requeet of Mr. Peters, who had an inte- , 
rest in the land, the 'i^temor had uistructed him ^ direct 
the said Jacobs tcwmake the sunrej. This bei% ^^ifocted ta 
as an unautterized survey, aiace the Surv^^aer General had ne 
right to appoint a deputy, witho\;t the e p ^ wto tion of the go* ^ 
vernor or proprietary, as ^appeared hf hia eoaam i awon; the 
|daii|tiir ofered in evidence, a decision of the Board of Propeif^fl 
in a caveat iled ^y the aaa^;i^ of Clark v$. Dougherty, atit« ' 


bCf OB£R T£RM, lto«. 331 

Leasee of Jsmet nt. Stookey et ai 

the soirey returned ; that it •hotitd be reeeived and con« 
firmed) .aad ditecting a patent to issue. 

The plaintiffo, in tlds caae» claimed under HockIe3r and 
oHMfii bf meaoe conveyances. They also hnisted^that, 6n the 
fiimar tftU of this cauafe, in May kst, w)ien a juror %as with''' 
drawn, lliat this survey was ^ad, and iiot d!>jdGted to. They 
eonteodi^} that the declaration of the Surveyor General, that 
the direction was given by order of the governor, was sufficient 
^iridence of his approba^on ; and, that the order of the Board 
#f' Property, accepting and confirming the survey, cured any 
defect in the appointmeftt. The motion was for a nonsuft. 



WABHMG TOir^ J^ This dtrectkiiit of the^urveyorOeneral, 

•ts not given to an officer duljrappointed and commissioned; andy 

it is cleu*, that, according to the •authority given- by the pro-^* 

prietary to the Surveyor Grepend, he bad no authority of him* 

wM, to make audi a dentation aa this, without the a{>proba'* 

tlon of the govenuMr ; ted stclr Sdeoia to have been tlie com- 

miXk underitaoding 'and pvaetlcey sd Mr as I can coBeot \ Ibr, 

tftrange as it lOk^ aecaiif no )aAcia| opMfam on the p<|ixit haa 

teen given, or it iA>uId iMive beeii referred to. But clrcum'^ 

atancea, to alUM^ the appH^Mtien of the gwramor, may be re^ 

sorted to % and, on thifc ground, the plaintiff relies upon the 

ftfltem^t of thir ih^t, in the Ittter of the Surveyor Oeneral^ 

^fydi the order of the Board of Prop^rtfi As to the first, the 

>egtilation of the proprietary, that no deputy should be appoint^ 

. ed without his- approbation,* #o<M ks quite nugatory \ if the * 

bare declaratiqit of^this offieef, that this approbation had Seen 

bbtaioed, wvmM give vaBAy td his fcppointment. This, then, 

j^tfr •«, wffl not do. ' ' 

* Aa to the judgment on Hie caveat; t^is might be very im^ 

;portant, if it appeared to us judiciaAy, that that judgment re^ 

fifrred \o this survey. An attempt was made to establish this 

ftict^ by an agreeinent between Anderson, who styles himself 

ig^at fi>r Dougherty fc Smith, a^d James; statmg th,e exist- ' 

f » . • « 








hemem of James m* Goidon ei aL 

WA^BINGTOJ^^ J. It it a great ioaecuracf, ta tqr, teft 
the legal title wm in Dromgold. Tke wantet meteif .gave 
him an equitable titl% aiul not jthat, unless he paid the moiiejr} 
and the qu^tions aM, whether the vanrant was q^lied Jar hf 
,himf or by Peters fc Clark ; and whether this is not a praper 
case to leave to the jur/y to prisume that the warrant was raailjr 
taken out by those who paid the meneyt and who merelf wwd 
the name of Onina^old as »< nMumal person, a practice com- 
mon in this State) whcnft <Mie man takes -out many warrants? 
The warrant, usued in 176:9| is paid for in 1765, by Peters & 
Clark, who had it ercecuted and returned ; and it is received 
for their use. The defendant does not pretend to claim under 
Drumgoid, or to show a subsisting right in any peraoi^ under 
him; and the pkdntiff appears in Qourt, with the original war- 
rant as one of his tide papers. The jury may certamly pce- 
sumC) that the name of OnimgoM was merely used by Peters 
and Clark, the veal |p«ntees. 

The defendant read an agveemon, hetveeo Gegige Crogham 
on the. one part, and WiQiam Petarii I. Wnsdeif and A. JameSf 
aaaignees of Ctark^ in which is recited.a: deed formeriy made 
by Crogham tcHPeters «id Clark, of a number of tracte of land, 
to secure a debt from Croj^bam, whifth was then proved ; and 
stipulating for a re-conveydn<»H oaxertatn termsi of particular 
parts of the land, to be ascertained and determined by arintra- 
torf. A copy of the award, from the records of one ofthe Coofts, 
attested by the proper qflfeer, waa now ofered ; and otaj^eted 
to, because not a paper directed by law to be recontaAi The 
law of 1715, authorises the reeeiAig of all deeds and convey- 
ances, of, and concerning lands, or wii^reby they may be in any 
manner affected, to be acknowMlged by the gnmorS) or proved 
by two witnesses; or if they be dead, or cannot be had, their 
handwriting may be proved, or If not, thenthet of the grantors* 
In this case, the signatures of the arbitratora were proved, and 

, CWTOBER TERM, tj^j. . SW 

'>fi ■■< in. Ill 

LeMee of James w. Ctonlon et aL 

ni OM ^ ^inttkf^mi but It 4<|iiiM| appear that tMiillaiBss 
oould not be had. 

The objections* were I Ut. Tbft-this vaa not a deed} 2d. 
If it weroy^lhe other witneta ahoald bare proved it^ or it ahoulii 
af^poffr tibftt hp ctMild aot bo had^^-Aaatier. That the defend- 
a«ti do not claim under thia awarc^ but it wa^ a paper put on 
tetKOA by Peters & Clark. That thifria a paper connected with 
t]^ agfeement to which it retes^and it does affect land. 

Jiy ciie Court. The Uw clearly r^at^ to deeds, and this ia 
act a deed ; of course an attested copy given by an oflker, who 
is not directed by }aw toirecord it, is n^t evidence. If the ort- 
gpfud were lost, or in possessio|^ of the adverse party, the con- 
tents might be proved by a wkness;,but the atte s tatien of tba 
desk is not evidence. 

The defendant offered a p^^er in evidence, signed by Richard 
l^eters, as attorney for William Peters. 

JBy the Courf. You mDst.pnidace the power of attorney, 
under which, the agent t^cted. ^ « « 

,The defendant^ tki^n ofiei^pd a deod, dated in 1774, from the 
commisaionera te s^fing. lendfc^ on which the taxes had not 
been paid»jlo the peiMsn under whoih the dsiendant claimed) 
^ he 'being the higheat bi4der. Objected to, h^ause it did Mt 
appear that asussaors had been iqipoi^ted ; and in cases of tins 
kind, the greatest stristnesa Is reqiiirod^ in proving that every 
requiiitsuof the law w^. coaiplipd' with. The law required 
the assessment to be made by the county and district assessorsT 
and k should; be shewn that tho>lalter were regularly appoint- 
ed } and a number of strong cases were read, decided' in the 
&upt«mft Court, in supfort .of this doctrine,«as applied to sales 
for non-payment of taxesy sod mother similar cases. 

My the Coffn.. This pfopt may be reserved. till we have 
gone through liie openings; b^ause the rule laid down, that 
every delegated authority, particularly to dqurive men of their 
property, contrary to the rules of the Commop Law, should 
4R»ear to be striictly pursued*, yet it may be an importam 

• ■ > ^ M. 

I t 

* I 

.336 . 'PENNSYLVANIA, ■- 

Leasee of Jftinet m. Gordoa ct aL « 

4|aeftUQn, whether a deteidanftf who hu ibr a great fiwnbcr ef 
years been in quiet poaveauon, under tach sales, may not cdl 
lo the aid of pretumpCioBSf which would not be allowed to a 
f^rson out of posseaaioo. 

The defendant then oiered a deed, dated in 1787, iaigfmA by 
the commissioners, for another part of the land in quosiiDiiy 
which concludes thus, <^as witness our hands, and to whkh we 
have caused our commm aeal to be affixpd/' There are three 
•eals in- the upper mar]g^ of the deed. The grantors arhnow* 


Icdged the deed, in Court, to be their act and deed. This" was 
dbjected to, because it yas sealed with a common aeal; whereas 
the law directs a deed to be giv^m by the oommiasloners, under 
' their hands and seals. Instead of affixing their indmdind seals, 
they put a conmion seal, as if they were a corporate body. 

Another objection to the deed was, that the lawa, preceding 
the first sale, did not aothoiize the eontmissioners to convey ^ 
though' it authorized them to sdL The words are Jiearly as 

foHows, f< that if the tax^ are ^ pai4^ within ar certain timoi 


the commissioners sbaD 9€il so aMicb,'aa may be necessary lo 
ndse the sum due, knd upoikJJI aalea inade kf the 9ker^ or 
t^rongr ot t^orcMid^ the said sheriff,, kc ^Ull cte^ey.*' So 
tiMt whether the sheriff is to convey, or the eomliKlasionetB, ^ 
: It is ca$u9 amiesuM, The deed was^firected to "be read without 

The principal questions in tbe cause were, Ist, wliether in 
Iblci the land aold, and in the possession of the defiondants, is 
. I the land mentioned in the warrant granted to F. Drumgdld, and 
aurveyed for him ; or whether it la not tjbe land granted to 
lames Maze, in whose name it was sold ? If the former, then 
the plaintiff produced the >reeeipti ibr die taales, doe at the 
time of th'e first sale. 2d. Objectkn, that the assessors- were 
nominated by the commissioners, instead' of being dected by 
the freeholders, as the law of 1758 directed ; and tJiat the c^n- 
iFeyance was made by the commissioners^ without authority. 
These ob|ec4»ofHi went to tho first sale and conveyance in 177 i* 





IfCaaee of James «h Gordon et ah 

3d< As to Kbit sale, and conv^jraiKe in 1767, it w«s admitted^ 
thftty by the law of 1708» the commiauoiiera ai^ to conrey, but 
they are to do so under their hands and seals i and tliis coov^- 
attee is made under their commoa seal. Maof decisions bf 
tfa&Snptenie Court of this StatO) irere r^rred to, in which it 
was- determined, that the partf daiaaing lands under these 
sales, was oMiged to pro?e the regularity of the proceedings 
in every pointy and even the notke of the comtni^sionera was 
deemed necessary, in the case of Weester if: Cameron. 

WASHUrGTON"^ J. charged the jury. Perplajted as this 
case has been rendered, by the iteode in which it has been con- 
ducted, it now appears to turn within a -i^xj narrow compass^ 
and to depend upon the ascertamment of a single fiict, which 
Vm be left to you ; that is, whether tjbe land now in possession 
4^ the defendants, and whi^h they, claim under deeds from the 
cttiA ksipners of taxes, is Ihe land survf yed in the name of 
Francia Drumgotd- or not«. If it Jbe net» then *the p^^iff can- 
met ftuceeed in thia action |. because the foundation ef ills title' 
k a varrant, takoB out in the name of Francis Orumgtld, in 
lte&. The consideration money was paid by Peters & Clark, 
^ 1765, for a survey of 516^ acres in the same year, and re- 
turned and accepted into the office, in 1770, for the use of 
the Assignees of Daniel Clark, under whom the lessor of the 
plaintif deduces his title. Now, this being the title, if the 
defendants are not in possession of this land, the plaintiff mu^t 
fiul, whether the defendamts have title or not. On the other 
hand, i£.this be the land surveyed for Francis Orumgold, then 
the plaintiff is clearly entitled to recover, because the only 
Htleof the defeMbnts is derived ftom aeonveyance from the 
commissicmers; who acknowledged 'in the deed iteri^ that the 
land so conveyed had been sold, as the kand of X. Mase, for 
non-payment of tases». I therefore put out of the question all 
the other objections made to the legality of the sale^ since it 
ia clear, from-'the deed itself, *that it was advertised, and in 




«fc—i^MMM*— i^— i^^ I I I ■ ■ I I ■ l»»— ^^— ^— i— ^1> 

htmtt of Jmet «. Gordon et aL 

eveiy reject treated as J. Maze's laad; aad therefore the 
tiee required by km to iie giTen, wHs in thia case worse than 
oBiitte^y nnce it^nfadescribed the land. 

To prove that this is the land gnutted in the name of Fm»» 
CIS Drumgold, the plaintiff relies upon the survey itailf, which 
correaponda expreaalf in eoursea, diaSaaces^ calla of aijiiphag 
laodS) and quantity, to a quarter of an acre. Beaidea ^bith he 
haa the evidence of Mr. Taylor^ a witneasy whose credit'haa not 
been impeached, who awears poaitively to the fact. 

Against this is opposed, a draught or diagram, of a number 
of tracts of land, made in consequence of a warrant of resurvey, 
ordered by the Board of Property in 178S, at the request of 
Doctor Smith, who was tenant in common with Peters fc Clark, 
in a great number of warrants, issued to them in 1763, in di^ 
fcrent names; of which thai te Francis Drumgold was one. TdT 
this warrant of resurvey, is annexed a list of those waivanta, 
amottgat which, are two to faniee Mexe, one to Francis Drvaa- 
gold adjoining Mase j and the one in question, adjoins thia other 
tract. The surveyor watf directed te lay down these traeia, se 
show their interferences, and what parts had been sold fbrlazes. 
Upon the diagram thus returned, the land in question b marked 
for James Maze's land, and two tracts adjoining it are marked, 
for Francia Drumgold. 

Upon this piecQ of evidence, the following considerathma er^ 
cur to itie, which I deem it my duty to submit to the jury* 
1st. Th» resurvey waa made twenty-three years after the ori- 
ginal survey was made ; and as the ^rveyor does not inform us 
by what evidence lie waa guided in locAdng these sevend tracts 
of land, its accuracy may well be doubted. 

3d. It does not appear, that a survey for James Maze, or of 
Francis Drumgold's other trad, ever was made; for they ars 
not mentioned in the original list of survefs returned in 1770, 
end accepted for the use of the assignees -of Clark; and it is 
therefore probable, that these were lost warrants. 3d. The 
tract laid down on this paper, aa James MaBe% corresponds 

• # 



Leasee of ^UMt m» GordoB et al. 

with the Surrey origiaallf made for Francis Drumgoid, in. 
courseiy distasices, caUs of adjoining tracts, and in quantity, to 
a quarter of an acre ; whereas that laid down ftr Francis Drura- 
gsidt has no resemhlance to the oii|^al surrey in any of these 
particulars, and is more than 100 a^cres short in quantity. 4th. 
O. WiMids,-who receivod in 1774 mA 1776, the tases due on 
Francis Drumgotd's land, is admitted by both sides to have 
been wcfl Acquainted with these lands ; and in that receipt, he 
caUs it Francis Drumgold's land, and distinguishes it by the 
precise quantity, to wi^: of 516^ acres.. The jury tlien must 
decide this &ct, whether the land sold was far Francis Dnim- 
gold or not : if they are satisfied that it was, their Tordiot must^ 
he Iw the plaintiff; if otherwise, then for the defendant. 

Verdict for filaintif. 

• .- 



OwDfrMiqtts «. BumelL 


tion. in tiie. mode of diachargiaf it» or which contsol t|ie ohli^Mtioia 

which the eontnct unposes; are caBentiilly incovpomted ia the conlnct. 
A contimct is govemcd by the Uw of the countiy where it is made, and 

may be enforced* in foreign countries, according- to their own fonn of 

proceeding; but, in such a i^anner, as to give effect to the contract, 

aooovding to the law which gav* il ^nMky. 
Ahrarofateaigiicouiitay, whioh pniiocli the paitj to a oonfmotlnNii ei^- 

ecutkMHwHb m the Couzta of the United StitM, protect tiie Moe Mi- 

vidioal firom aimt upon the samei^onlnct. 

DuFONCEAU obtained'.a rule on the plaintiff to eiiow hit 
cause of action, and why th^ deiMidaBt ahouki not be permitted 
to appear on comncMi ML * 

Moylaa^ for the plaintiff, produced n pmmiie in wrking fivm 
the defendant, to pf y the money sued for ; and a judgment ob« 
tained upon thk wiitiog, before the regular tribunal in St. Do* 
mingo, where both plaintiff and defendant then liTod. It was 
admitted^ that they are both French subjects. 

In answer to this, Duponceau produced, and relied upo^ an 
arrets of the French government, passed in I SOI, which aus- 
pends all process and proceedings, to enforce the payment of 
debts contracted before 179S| for slaves purchased by the peo- 
ple of this island, until a^^eiiod which has not yet arrived 9 but 
it-permits suits to be brought for the liquidation of aoch debts, 
where necessary ; but esiecution is not to issue before the sti- 
pulated period. The debt in question came needsely withia 
this, arrets. 

It waa contended, for the defendant, that this Court ought te 
regard the law of the country of which the parties are subjects; 
andy of cpurse, that upon two gronndsy special bail should not 

* . 

OCTOBER TERMt lt06. ' 



Camlnii^pie m. BunelL 

be required. First ; bedauie th« instromeiit, which is Uie «vi* 
dence of the debt, is not a bill of exchange ; nor does the com* 
tract appear to be between Merchant and mert^bant, bat a 
merchant and a planter; and, therefore, eador ihfe ordinance 
of Ldttla XIV.9 the debt doea not bind the person $ aid, of 
CDucse, bail is not deaoMdaUe*. MBoMiiq. Be Pntf . 138. 3 
Ves,9 jun. 447. 4 Ves., job. f T7. Clem^it v%. Boyer^ in the 
Supreme Court of this Sute, I Mac* Rep. 258. t H« Black, 
665. 4 T. Rep. 184. 

Second ; that the arrttSj snspeads all proceedings in any 
ebape, mA of course spednl b^ should not be demanded. To 
this it waa answered, that the debt became due, aad judgment 
was obtained long before the arreti waa passed ; nd, there* 
fore; ought not to be affected by tUs law : that the law only 
Intended to prevent execntifliia issoiag; and, therefore. If this 
Court think* itself boi^d by dwt law, still the defendant can 
only complain when asfeutiMi issmas against him! 
' But this regulation dorms no part of the^ssence of the con- 
tract, end the Ux loH e^mractuB is nereis regarded by foreign 
tribunals, as to the remedy ulred for enforcing a contract made 
abroad. The act of limitations barring a debt in one country, 
will not be regarded by a foreign Court. 4 Ld. ^■npf^ 567. 
Vem. 540. 3 Dall. 373. If then foreign acts of limitation are 
not to be regarded, acts which metely suspend psfment, ought 
not. As to the first point, it- was argued, that, from the nature 
of this contmct, it would appear to be between merchant and 

By the Court. We think Aat the defendaqt should be al« 
lowed to ai^iesr on common bul, for the following reasons : 
That those laws, which, in any manner, affect a contract, whe- 
ther in its construction, In the mode of discharging it, or which 
control the obligation which the contract imposes, are essen- 
tlaDy incorporated with the contract itsel£ The eontract is 
a law which the pardes impose upon themsiirea; subject, 
howerer, to the paramoom law— the law of the cottaiiry where 



CKa&mqm m, BumelL 

U it nade. Contracts tkns madOf aad thus regulated, may be 
eofbrccd by fbre^n trib«Mls» necoffdini^ to their own modes of 
proceedwgi^ aad sich tribiinab aim eply to giro effect to tbe 
coKtraoU actevdiMf to the laws whidi gave them Taliditf . 
%Ve tibiak tjiat ilie amet^^iftmk has been read, had once a 
binctog kmm epon the^epotm^^ aad upon the parties to it, 
from, wliich they enghtiM to be discharged by a fofeign tri- 
biUHit peofessiag only lo glv« eifoet to a contract so regulated: 
that this arreU protected the defendant against aay far^tt 
process upon the j«dgm«it, by saeans of execulion} as much 
BO, as if the plaintiff had tennd hiasdf tipon ftcevi^ te stay 
the eascattsM) to a period aet yet artlTed; and, therefore, it 
pvelfcti him fireaa turrft^ which may. In its conaeqoencesy 
•ufafeMDtlhim te inoonreBlsaces, aa great jw if be were exposed 
to the fiiU opemtiea of apunesreiian. 

• Ruie made ab$9iuie. 

> e 




CHoB. BU8HR0D WASUINQTOKy Assgckte Justice of the 
BXVOKB^ Supreme Court* 

CHoa. BKBABD VJmmB, UHiet Judfen 

HTi.TOir'8 Lsttiw v«. Brown. 

The Coaxt, upon the authority of an adjudged case, not cited in a former 

trial, admitted that the defendant bad a right to insist upon the produc* 

tion of a paper, which went to deikce tile plaintiff^s title, widiout Ibrtify- 

ing Ua own \ contrary to A deraion in like fctnier trid vf this cast. 

Althoogii i fiaper his beinffodttood by «Be ^mty onnolloefrom the oter, 

- k dommt. h<oogil» tiiiawBc> unkssfijosnilstogalchanaitf Ithiwitiliad 

Aa origimd will of lands^ not prov^ aocord^pg to law» cannot be read in 
evidence $ although produced on the notice of the opposite party, as the 
will of the person named in it 

A party who claims lands against an attainder, the correctness of which he 
denies, could not, upon the principles of the Common Law, ee n irov e i't 
the title of the purchaserunder the sttaiader, in a eoUatend action; but 
would be oompeUcd toreyeBM tho attaiadcr^ tnd thus obtsia * Jmlgnent 

The principles and provisions of the laws of Penns^lrania, in relation to 
attainders, examined. 

The operation of a treaty, before ratification by the governing powers of the 
State, by whose agents it has been signed.. 

X HIS cmiae, whieh was tried at the adjourned Court, in 
January, (a) and in wftucfa a venire dt novo was awarded, eaaie 
on now. to be tried again. The evidence was the same as at 
the former triaL 

(«) AUty page 298. 

# * 

• » 



Hyhon'B Leaiee m. Biown. 

The dtfeadantf having ttsled Md;ahoim his posseaucm and 
title, called for tiie productiiNi of the will of Joseph Oiiswoldf 
after proving a notice to the pluntiff to produce it, and also 
that it was in hia possessioik In addition to the cases former- 
ly cited and relied on, Metcalf v#; Hervey, 1 Ves. 348, WM sow 
read ; in which Lord Hardwick determined, that a defen^t in 
possession, .whether rightfully or tortiously, and being sued in 
ejectment, migh^ call uppn the plaintiff in equj^|[, to set out his 
titlei that it might be seen whether the title was not in some 
other person than hanselE 

The plaintiff's counsel endeavoured to explain this case, by 
saying, that this only meant, that th^ defendant at law^ might 
seek this discovery, to enable him, at the trial, to be prepared, 
and to show, if he could, that the title was out of the plaintiff* 
That, at any rate, the case did not authorize the defendant in 
this case, to coqupej the plaintiff to do nnore than he had already 
done, t. r. to setfortlk Us title; but this was a diffwept^ thing 
frtMn CQOipeiling the plasntiff to exhibit evsioice to deCsai hb 
title, without strengthening that of the defendant. Thef citadt 
in addition to the cases fermetiy read, the following. Hinde's 
Practice 36. Milford 53. 138. 100. 163. 3U. 98. 160. 161. 3 
Ves. 445. 3 Fonbq. 484. 487. 483. 3 Ves. Jun. 333. 343. I 
Woodeson, ^07. 3 Ves. 189. 3 Atk. 393. 393. The defendant 
eited Mitf. 160. 161. Parker, 144. 1 Ves. 56. 

Judg€ Peuv thought, th|it upon reason and principle, the 
decision given on this point, at the former trial, was right; but 
he yielded to the express authority now read, of Metcalf and 

Washingtonf /. The doctrine laid down in 3 Fonbq. 484, 
in the note, coincides entirely with my opinion on this point; 
but the oa#e of Metcalf 8c Hervey, is an authority landing 
upon, us, and is too strong to be got over. The explana- 
tions, whidt have been attempted to be made of this c^ae, we 
ingenious, but not satisfactory. That was to every purpose a 

APRU^ intltM, 1 B06. 345 

Hylton^ Lopee *. Btovm> 

Utt of diid^ery, aod won emettaiopfl ftt auch l^ the jud^ ; it 
#M bcougbt by 41 per9Qii iM clainiing lilte; apd it eaUetf fifKa 
tlie^dqCBiidiiil Jar^iifnv^ry, whieh could o^t be.noc«$Bary lo 
iribfti'lt tke poss^won oF tbo d(rflwMiB«t; but mMelyito A^kBt 
tbe^dtim frf tj^e piainliff at law. I£:t^ heir of Mrs. Harpi^ 
9hoi4d be found t«. be fMUy «ntitl«dt tH effect of the biB WM 
merelf to «how} tint the title was ottt oP the piainliff^ •q4 for- 
t)tab«i Ae defiNkhoit with a defence agidiiat the plaintiff ai Uv) 
but viMMttt iiflb»ding valicUty to biaiiHe* What ia tbo preaeot 
ctti«l The def«idai»t.calla.Yf)Mfi the pfciitiffto exhibit ft papiir 
ii^ his poaaeaaion, patlitMOt to the iaette^ m etder to pfwe the 
titl^ out of «be plaintiff. Xbefoia i)o diatinguiahiBg^tte caoea. 
Bait it ia aaid^ that the oaae only warranta th^ demand of what 
Ibe plaintiff has already doiic; and tbattjae Inll waa entevtained 
'm jthat ca«a» to enable tbo ^e£MidOiKf l» profave bima^f for 
trial. Bi|t Lord Hardwiok«a#ald never iwan to aabetmi ao .ab- 
aiuil a dyijunwj aa abfit Ao defendaiiity4ft ovary oaao» (far be 
lap* it 4fimB aa broaAao^poaaible,) salgbt^^piwtiouato the tiial 
af imeje^ment, ctdl 11^90 the plaintiff i^wquity*, to aet out hta 
title. If 80, a bin of diaaovery, wbQld'%0 H^o toeceaaary and m^A* 
atant companion of an ojoctment ; and w^gp abo«ld the defedd' 
ant !bave this advantage more than the plaintiff? But he clears 
iy escplains hia moaning, by stating tho <4»arpQ8e for which the 
dttcovery ia compelled ; i. e. thai it may be aeen whether tbo 
tide 4s out oi tbo plaintiff; dot by^atfjr proof, wbicb the doiead* 
ant might bo able aa prodaoe, bat by tbo title aei^oiit by the 
pbdntiff at luwi .Haaia ^f tho oaaaa olbid by the plaintiff, are ao 
airoog aa Afaal; froati Veioy ; and I therafoN^ foal myself com- 
pelled, by its autboriiyfHo yield my former opinion. 

Tbo plaialiff then pfodnced.a cojiy of Joseph GriswoH's 
wiBi bni inalaM# that befive tbo defendant could ready |^ have 
ilie adfintago of it^ be ought to make an affidavit, that ho had 
' notskb origuial or oQopy; 

By 4he Courts This is not necessary. 



J « 

Hyltoii's Leasee w. Brown. 

The defetidfltit then objected, tliat the pkdntiffmiMt prodttce 
tbe^rigintfl wHl. T<» fStds it wflui aiiiwered, tbat tlie notice ih 
to prodnoe the will or a co/iy, and beini^ 1||itiie aitemaiidteA ke 
is at libertj ta produce ettlier) and «a the copy now produooly 
w»B d^ermin^ at the last -trial not to be evidence, tiie onffM 
not haying been proved In confotmity with the laws of this 
fiute, it was objected, thtt, though produebl, it coeld Hot now 
be read. Im replf to tMs^was insisted, and Peake's Bridence 
was citedt that tte will 'comings from the hands of thft |Mntiff 
hiwseifciit musC be considered as the wiM of Joseph OriswoM, 
withtet' Aii>lli€^ etidenee of its exeontioii* 

- Waihingicn J, The difleren<ie ie between a paper, tiiwpioof 
of which may be suppHod by the acluiowledgment idf the p«tf , 
who produces it, so as to make itwrailable ; and. one which is 
inoperative, uiriesa certain fatns or pMofs are pursued, or giveo,' 
to eaiabiisli Itt aM miAe it effectuel^ 

Thus n4ied orleCHkr may be estaMbhed, by the acldsowled|f- 
mont -of ^le grattlsj^f or the person prodwclng tlve leitef . Bet 
all that caq be iofcrrtd from the ptwdhiction of this cop/, is, 
that it is a copy di the will of Joseph ^riswotd. What follows? 
This will not estaUMi it, so as to pass land in this State, for to 
give it this effect, the will must be proved by two witnesses. 
Even if the plaintiff were to produce the original will, still k 
would not- avail the defendant, unless the execution of it were 
pfovod,in eonfbrmity with the laws of this State; and as the 
defend»t does not pretend Hftat he can do ^its, it is nnimpoit- 
ant whether the orighial, or h eopy, b f adiliieod;.! 
' Judf^e Pete^ was of opinion, that the ^wit could «ojt be need, 
without proving it as the laWof this Mtte Erects. 

The cause was argued Upon its mertls, much asfenMcfy. ^ On 
the sdbjeet of what constitutes inhaHtanct^y^^tib'Mamag aiMi- 
tionfli cases were dted hf Plaintiff. Burr. Sm^ Cases. M9; sfh. 
535. 5S6. 343. 139. 586. 835. 3 Idem, S90, 89^. 4». I IML 
153. 158. 346. 348. 3 Rob. Rep. 33^. On the other ^dOy 4 




AMOL iKdtfy 1906. . 34T - 

■»^^^^*^"ii^yft II ■ I ■ ' I ■■II M l 

E^Hon^ ]>flMe w« Biowil 


■■■ * m . ■ ^ — ^^ ■■ II I . i . . . .■ . . ^ I ■ • 

\. Abr*r 759. 3 SlfanlpB 9SI^ S I«Mt. 702, MSl. Cartel^ Rep. 
1^*3 Bttiii8'^«8lice, 12« < \ 

•,^ tp tke p«riM wb^ the tivaty took «8S«Bt9 tho defendant's 
AiPfiael eit^ in addition. Vatt B. 3. c* I9i s. 156, 157. 1 voL 
Abbe M^blf^ 1 13 to 317.^ 

Tbe chaise waa^pMte^Ihe aaiw/tt t^M^deUrered at the hftl 
trial, except that |^ to tbe cooatn^)clkiii%>f tbe Act of March 
1779» mifi the TAlidllr of the Act el tbftSUt of Januarj 1783^ 
tbe £oyo«|^ e|iiiuon was delififed 1^ 

WASMUWkTO^^ J. The questkm is, vNtt, is the c^eta- 
^^kff (^^ Apt of Marcb XJ7J9^m tbeTights of tfaene panjm? 
It is contended bj the defiBafanti that tbe lessor of the.plaiotli^ 
olaixniDg n^der Joseph Gij|iroId iho.&ther» who was attamted, 
ab4 bis layl seized^aad i^ he la JiamMlof ail remedj ^gwist 
tbe pQ«cHaseiv.but m«A^||pk i^ the SMe far indeamificatioD^ 
jBul tU» argUMOt ia.bu9t upon a beggiy^ of ib^ question. 
Tbe 4MiMida&t asiuK l ^b at the &ther was Jtbe fterson att«ipte4» 
wbicb the lessor of the pbdntiff denies. . Ji; in fii«t, be was ^ 
person attainted* and tb* onlj q«es}i^ jnsh '^ the attainder ei:* . 
roneotts; then uppn graeral principles^ iidependebt of the 6^ 
section of this Law, he, or those daiminy under him, could not 
controvert the title of the purchaser in,ii collateral action \ but 
woold be compelled, £rst, to reverse the attainder, and then tp 
(ri>tAin a judgment of restitutioi^ Xhis woijld ])i^ve l^tea tbe 
qflfte, btt( for tbia Mction; «b^ upon rtTetsab pvnrent^ the 
judgm«it of iwitititfinjii as agaiaat i^J^mmi Jldc ptrcbaser, apd 
jNsbstitutea the Stefe as bound to make rqparation. In cases 
of attainder, undei; the ^w of 1778, there were three modes of 
|wWiitdii|g to obtai» redr^aiw wjliere an injury had been done to 
tbe^ pearaan <i>ah»ed, or to third persons, pointed -ott 1^ lair. 
fJjraU 'Third pmn98 claii|ang by deeds under or paramount; 
%o^f[ltiyB|||d pvmtk /wflit, within a limited time, uiterpiae 
likmt diains to the landt ^ to si^&ctioo theteoot of ddHi 
charged oa it« which wore jtp be decided in a pestiBirfar wiqi;« 

'349 • PfiNNSYLVANIA, 


HyltOTi's Lessee ife. Brown. 

This remedy did not extend to t¥lt traftor himself. SecoDtflf; 
The attainted person 'himself, his heirs, execntdn, and mdtti- 
nistrators, or those who were prejodiced by (he attainder, tnigW, 
if it were erroneous, revtrse It upon the principles of common 
law; and h&vin§ succeededf be would be entStfed,not toajudg^ 
ment of restitution against a bonajide f urtlAiSer, but to favdeln- 
nity agaitist tfte 9ttitef Or, Ihifdiy, any pefion, other th^ the 
attainted trdtor, or those *cUdtniiig under bl'm^ might bring an 
ejectn^nt to recover land, to wMcbr he Ins a tltlo) wliieh hftd 
been sold in consequence of an attainder. •« 

Now, in tbM tzit^ the plaintiff do%s not tompIaSn, that there 
is any error in the attainder; 4Mit oA the contrary, it ii admit- 
ted, or it least toothing appears to the contrary, that '9(»6pl| 
Gritwold, distiller, at the tihie of tfie protlamation, ^ themng^ 
fere) an inhabitant of the State of ^eitnsylvvnia, ^hktr cotreolfif 
chilled upon' and tittafttted ; btit b« dbnCendfs, tl&t fosepb tBriS' 
wold, whose latwl iras sold, was not caltc€ upon, and ih cr e ito s 
wts n6t, alia cotl^ not be attaii^ted. f f so, this Joseph CMs- 
Wold could not have roversed the attainder, hbwever erroneous 
H might be, becaustft he wa^s neither party, privy, nor wai ht 
prejudiced by it ; and of 'course he coufd no^ make himself par- 
ty to the' record. If thomas Griswold had bcAefi called upon 
and attainted, Jotefih Griswold could not have brought a writ of 
error. Th« error complained of, is not in the attainder, but in 
the subsequent Seizure aiid sale of Joseplr Grlswold's land, ill 
consequence of the attainder. But, if on a judgment agshist A, 
the property 6f ft is takeh In execuUbtt^ tfie tSxectttion is voiA 
as to B, and he' may recover back his property, tit sue the oA^^ 
ce^and pany ; but he< could not «ue out a writ of error to re- 
verse the judgment to which fab ^sneKher patty iior'^^lv^ 
tier whicli {judgment) had prejudiced him at att. The ^ue 
diMinction Is this ; — ^if a person be'atfKnt^d'tmder prboess, whkh 
U' ineomfilete in describing hitn^ atf, If tfiPn 'proper aoldbiWs tie 
Emitted ; this is an error of which he may av«il himsdf by wi^ 
cif error; be'caiise, having t>een tnXy rtamed) he4s A ^r(y to 







li# ii/iijii><lMtrt<r^rttM> (U if te|r»^ caMdMqr a «fO|if Aaye^ or 
MHts^jriirWr tMBi M mugiif a plK:«» wiMi is wit tru«$ 
tiftB tbe desMftkib'ibes a«Nl|^pif '^^kn*. He never was 
party t» tite reciM; tfeeyte nevar ay atiai>f <>!■>< yj^Mfrefore 
U^ c^ntiot uWitiMafcii WaMtriMwH HM he ivaot baund ^j k, 
attd^lMiy cpaMfglMMly Me fo(* Ma v^ N^ ^i ty y whkk haa been 
aelaed tBfe> solt^ la^ Meentidn of U» ttMndei^ aa if no 8«ch at* 
trioMI^ htA laken fli»C «» »»4t m Mtngton'a eaae .^ 
DM Jj^MtteBBipt tfe tlif<y iiHn^ <H>wUit »■ 'My no-ig»i^. He 
oaaM noi hMPrm dpne it, since he was imH atyunted. But aAen 
<AM|cI iii»ini ttr^ttmr %liy exaciiiofe i^ld imh aaiBe, ke plMd- 
Ba i<|ii »l» i nn tettl>e. yw ii a i tuainitcH anditetraafhff apiajn 
^ dhs'^uM^ npon tte gfouoi^ilbM be vas doBoribed to ha <if 
■est MrfaMMI, inataiM^ Wo^. BmdlM towaabip, and tJua, 
tMufk t1«»ai^iM» flWiaihlWl^vMA li»>i>a|,w»H[ Mnamtd the 
4MHt>timirNifci Hard Vkitego's casc^* aial 4» 4(lorM% they 
dit'Mt ottciMft imtw ta ij the attainder, ^^lad iliija cUaaw 
ii^ ito gronad ol a/«ite i^^rr^dti^ If the^ JoMpli Gri^ 
MM haa been ftiaa^minii:rib«d, he« tepressljt^^fHhiB ttorfN* 
Motion bf the law, wiiAlb^ plaiatiirisaiait barrat>of4Ha aciaMW* 

Tbe neftt ^pseattan is, iraa the law of the Slat Janvary^ lytfd^ 
passed poatemr to the tMaty, or iMl If it was, then Mr. in^ 
garsoH has ain^tted it to be t^oM^ #aMttg i« contravwitiM^f 
lMltireat3{. , , , . v 

TMs f m #l iJ» V^qM^f^ <i>'»|yo tisiaas at^aiaw. First; at 
wbat t Ji J K # | t s ^4rNMy ,tlk^ >ftWb tf t>o pi^iJHlia^fiwMi in t^ 
bi^ #lt|« iy tllMjp^eMaat (|f 4o «um^ Second; ait 

whht t^l4ad did lAiatillM^ dTpeac^ between Great Bt^ 
8idMii#M(e0iM^dtoai Ifce tetmawf theps 
J|?«aal, %. d. c. M.ftJs; \S7^ ai^ai «Ti 
imth^Jfcl^ il fc 'y fqi r , wMiaiftn 4«mi of Ims 
sia^^ad' hia ptf»a | a »<ii|^J8iig aa tda consdtgMU. At 
•MUbAteaH dMgUhVVMBMa Maaate to theiarti^ea the 
rM9t% iMt' Mi IliAWa^riMW liy 4idir aifaiiMM 

Hy)ta^'ft iiesiecvviv Brown. 

tqrnnynmn ei tbe plenipountlirj it iMMt a pW>qwnitlip Ofm 
Mera^ Ai priftQCft caaooi be.y«ipellfd, but hj. bvo%^ lift fiilii 
their engBgeiMiiu> k k cusiomaqr to plaee ao dtq^eodcoce fv^ 
, theb tf talks, Ull they hpiTe aBMad to rt^ tb««i. T1iQ8» aa 
every agffiemefttjof ikcb mmiwr^wp r^maina nvalkU till aaDctiooed 
by latificaliDm there is loia 4aOver in epoMgJinilWfted povera. 
But, before a pi;ince can bepttiirably re6i«ti larratify a con^act^ 
made in virtue af puch plenipateptiary coiqpMOT, be tbpuld 
be able to allega alroiig«anfl subMikiii^ ptamva^i ^pad, id parti- 
cular, \^ pm/9e that hie naiaat^ him d p r i al id Jrqm.liiainitamci^- 


Jn this extraol, I undmUnd Vatlal aMcalyi^ ataie,^ftnt 
a yvfrnmul is baand I0 MH^ fgi^ammt of i(Mi^syQii|KK% 
if made within the scope ofoh^ aulfwiity; biit» if itrefosas 
to catify, it is not bound hf thaagree«a9l( b^aQs%agqrd«m 
to modarn OKilsai^ the' power oC |#iff JUj. ia rnspcaprt h|.tho 
fovcnmaolt 4o aV#I the inconveiueiice mH , twigrr^ v)wl|» 
might g^wilt from the minister exceedipf Jiiy aallhority ; i^ 
if SO} ttoi the iamfc author declares) ibM* the sov^ifi^a is 
ho^nd by the ikgreemitat, and^ unless aI» p|martnn ia posqwoad 
1>y the tenas oC the n||HOiieht, to a jartaciriar day, it takes 
affisct /rom the a%naturah The Abba Mably does not cootrap 
diat this, but merely coi|(a«ls the paaidon of Grotius, that the 
taaatjr binds from the sii^natttD^ whether it is mtified or not. 
Rutherfoith is stiU more eKpraaft;«Ha says, 3 wd. 381, ^t|Hi| 
what a govatiM^qBt doea by>heir d y n ^| a S| is jl%a|&QiOMets 
Wd, cQwequeotlrf 9^ reapaic:t of iik<,M#fw,.it fM»c^ the 
aame effect as if thay had dona it themaeivtps* .-in yMblia com« 
pacts, which sovereignf maka by thair di^tiaa* the law <^ 
^fuOM^ is the same as in^prsmiaas whach. Iiid^idaala make hy 
ppoKy; what tbay df under ii|atuthorily'#fAai)P|0ifali(:jQ^ 
asisnooy l»ndsthmr.prinmp«l%«van.ti|Ofi^ 
aame private, iaayitucisatts tem thair pt ia ci t a ls." 
. fta^d. W4wa doea thetln^ batwaan G'rest Britaili and 
lINi United $ls««atalmaffM)iPipathilt|fi«aftf^H^^ Apirars 

-gTrj- - IT T* ' ' - f-" ' ^ > -«• 


4KnA4fll»''tfiie ttetlHtaM of pe«M ire wgmi ^ispon VettieeB 
43tefr««4lib aod Ftetbe, an* Chreat Britidii ttett'lie rtady 16 
•cMichitellWaaine. ft kiiglMd, that «ll tfeit ittMiii»ih>m A* 
tin* the-iigreemaatk not oiil)riaai«4«4 signai, but i« mMei 
«lao. If ^^na waa the kMioionr^irti^ imi li aUt ao esf^aaaed? 
•TlM^ miniawa kamr Hm faD iMfUrt ofthe lxpi<MaioBa A»f , 
«ae#, and mMiM M^er have egpvaiaed^ tWmiMbea looady, 
wlM» plain, noaniHgttoiA cxpfpmam^yffmt m, hand. In the 
trMtjT het^Mn HeOtM tail iSraafc. Wilfcfc^ the eStel of the , 
ttmtf k aiia p < ii ii d -tM <>tftm>fc» hy to|h» ia tenaa. Wheth^ 
tiMljr Imw ia n Efl0iaii<l *and fhaitoe aM ih auapanded, 
not i^fiferi aaal kia^ea to he hiferreiy InHithe cktaaa- 
alanee e» «eitam jwlkida ffMoa «b6 lamfteaHon 'tiemg laaM 
\q>an|.wheff heaUHtiev^ttv to eeaae in paitieakr pkcea. B«% 
rite thk aa.k may, the fi^nakMl aidclaa hetiraen Qreat lUh 
tai» ted *i«M«kl StM* MN^> hfi <he imim 4rf itf tc^ take 
^0BeC| whe^taraafr of yeaoe are agreed mpka %ei^iin Grant 
Iteahi and Pia aw w^ , and Great BriuOn k veai^ «- eaaaDliide 
^hraaaie* Lei Qieaaadne theae espnsaakoa, and aee whit 
Hiey mean. ^ Agr^td ttfimt ^' thht k»^hen the |nhiii*era hart 
eeane to an fHfamaadlai^t aa to #to ternaa of the treaty » iM 
hanre redneed them to Writing. ^ Cmuluded /' that is, when 
the agreement; thus undelaMMly hia aeceived ita kst form, hy 
being signed and duly exeowmd hy thr minkter. It»k ihk 
HfWish concllKkft aitt^ag«eemM»,^^.Whe|her made hyaetea m 
by Vmima^ ThatMa klf|i«leankg of the weed emtludeS^ 
k pkhrirom the ah^r »^ o%gtka ftmkVattily and ftem other 
expieiahmaf «ieA'b|p|i|B in k 3. c. i^. p. 83t, speaking^ef 
traeea, where he qaet ther w^rds ao* importing a aignatnre, ' 
d ^i a r <y4he aotwrntgn, be hy lik \ f m l ti a l. Bet k goea en, and 
asynt « An^Ckeal .Britain ahidi 4>e read^ 16 conctaidn the 
-Mo^f'^rtMi'^lp^ireMy wna-eigned' by her muiiaieii, 
i fce n n Iw ^awlkdk to cencltde k.- That ratpUm^ 
0m ima net^eoMMatM^na a neceasaiy eendition, k {dak 
ftwr 4k Mrihmn ^ fMlMdd»^habig npplid only u^ Gitaa. 



isi littdtmisrAmAi 




United. StettM mo^UJ$§Sfe b^m ft pcMP» tod. y»t flfptHiHwii 
Md Fram lb«.«t nr. For* if Oi««l BrilMii lUd ii»niM<eii^i> 
tMiHf, and «Y«D ratiiWlili^f«Cf UMHib Fviac^ had refuMii 
stiU tUstreatf muM hwe|M|pR mJMNfli bfttwiMMi deal Bntate 

^ «nd tke Uiiitd Buiiirs. If mOficadon h^ iNwnnwit, U wmU 
have providMl.fiNr»t|(» 5»dM»ge of millwiilMiar aa»^ «io<t 
u&ktr tnsaticB ia a— ainaib 'T)ie tet iaf t»d ]re al^ ^«Mrk 
^ M a vmnwotpoMaA bUmtf^ lh«t tto Unitud' States vare 
aittiotii'to teaiaiir attd FranflC.aa.|Wliiii ao tofvoiiacv tfcoca^ 
ckMMk of tMe M^otimiMa; aM tba adtnii«l»,«r fl^^MMd 
jjHitea, did nt thi^k k pnidint or aa a a aH i p i^ »>d0>ay the mmr 
plcHoft cf tke treatr# aftar tfae taiik*^ >iace vtfr» tgaaad 
•fittn betiMMD Qraat firitaiB;4if»d Frawaf and was fioaBjcoi^ 
<dariodby*thajaignatiiya df thiianiiaiilyii^ 

Mr. iMmmUMfm ta Mft Mamamn* I— haan a>ffd»4i^ia 
lanek in daladhed |Miia»;that it is iwp^ssibla aaiBap«hi(;li sMs 
aaay fdace asqft MUaHQSKHB tills aiith<iri^; aaiillt tt^imptiaailla 
So do fttBtina to I m b t f aaaeott withottC gakif thvaugh Ite^rMs 
9^h. AaapraofoftWa,Jkoa|taC|rkai;t.iB.aatd^ttiatflal»pats 
SMS itt whick 4i(f spMks of Jte traatjr %<fiDg sigMd hf iha auaia- 

' sars of Great Btitain aad FraDce* ofr vfaiafa oofiee had boa^' 
givan to Ccagress ; aad ateQ addat << the erjent haviag nam 
Jkffi/uneHj oikWbkih 4^ pvoiMiMi articles ware to come iM* 
aparatiaB/'' Ice. A^av. Aalf^^atf, jaam velMia t4 ika aigoaUMRiy 

ar to tha caiaaa. It caaoatjalatejAlheiattar; hiiwaiaiidrt the 


Bfltas^JbOrcltes attharkiea.t^ prbvp, thAthe aa/lan^aa-boiiiid to 
aoott as the treaty ia ce^cltidsd... ThoA^^Ar, jMHtbe-jUme at 
' ia made public. He than mual ceAr t6 the sfgnabitv; moAt It 
ao» it is> <ottipMc stfAarify Ibr the ophnov va Md. Vbi 
JM ana d iat ety sftar,. ha apaalu aT this vdrf ilMr et 1»» ^M^of 
Ahm, irsSf as heiiif aiQC af vMm vp^i^tfea anhfoet af Mlpo^ 
taoais of the treatf. U ,^ Vmt&i ^Mtlh w^ h^tmd bf ^ 
aigtiature, bo waaa th» Slate govenunaatat mk» stood in m ^^ 
dMhtro^ situathAjfafm ^indisi liiiil Jiijasna ^.thoJattiiif <f /i*wi 

■ f 

• 4 

At4llLTlmMt laos. 



Hi g I 


HyltoB^ htaaee t». Brown. 


ooaid noi be punithed'fer eontrayening the treatj, as hidiTidu- 
als might. tJpon tta«r wh^le, we ai« constrained to say, that 
llle treaty. beiNreen Great Britain and the Cnited States, was 
In force from the 30th January, 1783; and^xona^uently, upon 
the admission of coutisel, of what could not be questioned, the 
^ct of 31st January, 1783, is out of the question. f 

The jury foupd for ptidntifT. Exceptions were taken, but p» 
writ of error was prosecuted. 

is, Tilgi^an, and Dallas, for plaintbr. 
]AgerMl> RttfHe) and M^Kean, for ddf i^ wda a t . 

• ^ 

• • 


» » 



* • 


Leuee cf Ddmoey m* ITKeen. 

^ If an equitable estate hhs been forfeited under the aettander law^ the hgk\ 
estate wiQ not be allowed to be set up, to bar a 6uf purchaser of the equi- 
table interest 

Mere posseanon of ]and» or offerings to sefl it, or eren paitial sales actnaOy 
nwde, aaa no^' alone, ailQciehit t0 avtiMriae « poptmnptkn of 0!«Bcnlup ; 
far these may fco the »cto of.a toi^^oory pjwe pai f «or of a» agea^ 

The payment /ai pvt 4)f the porobase money of bod, the property «f a 

, feme covert^ in her presence, cannot prgjudice her right to ebon the laa4 
after the terminatioo of the coverture. 

The title df a feme coveri to land, cannot be affected by acts of coimnissioo, 
short of those required by kw .to biild her ; much less, by Acts of omis- 
non. EveiH if by any acts durii^ coverture^ other than those which by 
.Uiep«o¥isioiisQf|awmiiy€|eaily bindher, a/en^ooso^aiqrhaireboaBi ^ 
heiad^ ^ey a^ prajjior for the deci»on of a Court of Equity, awl not of 
•In order to protect the rights of a feme eqvert, in property forfeited as be- 

' longing to her husband, on his attainder, tt is not necessaiy that the 
husband should put in a ehum to the same, ibr her; as, by the sup]^- 
ment to the attainder laws of Pennsylyania, passed 39th March, 1779, 
the rights of persons claiming paramount to the attainder, are saved. 

Wliere z party has been absent frottk the country duringa war, the period of 

^ the war ahould not be construed against lui% in computing the length ol' 

time in .which an ejectment can be brought 

. A deed, acknowledged before a Judge of the Supreme Couft, and recorded 

in one county, may not require to be recorded in every county in which 

the lands conveyed by it, were supposed to be situaled. 

£j£CTM£NTy to xenovet 100 aorea <^l«nd, in Nortbunptoii 
county. The jdaintifF deduced a regular title^ from the yfO' 
prietary to WiUkan AHeuyior 1653 acres of land; and read the 
copy of a deed from Williaoi AUen, in 1771, to Jamas De)aa- 
cey, and the plaintiff his w^ in fbe, for 1000 aor^s, part of 
the above 1853 acres j of whkh 1000 acfes, the land in ques- 




avkb: term^ itoe. 


Lessee of Heluicey w. M'Keen. 

iBMH MW pareel. Tl^e deed from WiUhem Alien, was &ckiM»w* 
Itd^pA m T773, before a Jnttite qf the Muflteme Court of PeDA- 
sylvania, ani wa^fteoprded in the county of Pkiladelfihia. The 
deed proceed, was «i\^einpiiiie«tion from the* raster's dfiice 
of that connty/' The plaixtUT aiirtftred her hualnaid. The above 
di^ contained a grantt)f lands Ifing in the cotif\^ of Philadel- 
phia, and of IpitB in the city of I^iladelpfaii^ as* well as of the 
above 1000 acres. 

* The defendant set up a titl^Mnder a deed froni the comnus- 
j^nn^n of fcrfiQited estates, who sold ^e same as part of the 
eitme of A&drew Allen, a. son* of WMkiih Alten? and brother of 
/ tSte ]^VaSntifF, who wis i^gularlf attainted ; Sis ^sfhtes were sold 
X in September 17T8, fiid the dee.d efceduted hi 17V9'. It was co»-' 
mded, that, fiom certain at'ts of ownership, exercised over the 
4and of Dehuicey and wife, by Andrew Allen, there war ground' . 
to presume, that he had putchaae^the 1000 ^cres Iran them ; 
Isat BO evidence of sttck a deed, or of %Wf contract kit the sale 
of it, w«s oftred'. • • i 

Evidence was given, that in 1775, Andrew A!l4Qn» entered In- 
tel ^contracts- for the sate of parcels idf this land ; that he ofl^red^ 
the whole* 1853 acres for Bale, and that he neceived the consider- 
ation money ibr such parcels^ as he had sold. That these pay-' 
menta were made, sometimes to hinscsll^ semetimeft to WiflianA 
MSttk for hie ese ; and that at dne time^' Mrs. Delancef, the 
|iiiinl<fPj was in \he'roonr, when a sum foV a part of the Imm^ 
* Was paid by l3he purchaser. It appeared in evidente; that James' 
Ddancey left the United States in»lhe fall or winter of 1775 1* 
that he passed first into Canada^ from whence lie went to Eng- 
htndf where he alwftys afterwards lived, until the year 1799 or 
*re66, when' be died. That Mm. Del^cey Vent to England' 
^y hi r799; ThaA in 1788, Mr. Delancey^ brought an eject-' 
SMiht fbf the land i^ question, and a verdict ted judgment was - 
S^ven kgainst him* 

The. defendant ^offered in evidence, a cMtli put in by Wilson, 
(who p!nrchnse<| {hnrf Anditw J^lleri partirftlie 1853 acres^ in 

S56 PElfN^YLVANlA,' 

Lessee of Delancey f«^ ITKeen. 

the Supieai!^ Court, to. 90 much of the kuni of Andcew AUb% 
which had been confiscated^ as he had purchasedr which was 

My (he Court. This |s nothiiii^ more.than au attempt, in this 
suit, to give eyidi^Dce of a jud^Qient reodered ^in a case between 
different partieS|,for a different piece of land, and different title; 

The evidence was refused. 


Mr. M'Kean and Mr. Dallas relied, that the acts of owner- 
ship/exercised by Andrew Allen, ^ere sulliciently proved; and 
that upon such a case as tlusi the jury might ppesume a coi|« 
Teyance from Delancey ^d wife^ to Andrew Allen, or at aajr 
rate, an agreement to. sell, which would be sufficient to paii^ iii 
^Quitable estate la Andrew Allen; upon which, as well as npbi| 
legal estates, the Act of Confiscation operated* Upon this potnti 
they read 1 Equity Cases Ab. 3011, 306. Skinn. 77*^ Cowp. 10S. 

*9Mod. 37,' ^ . . * 

They. objected to t^ . plaintiff 's tiUe; 1st., Thi^t the ea^ein^ 
plific^tioD of the deed, fro^ WHliam Allen to I>elan^ey Mi4 
wife, wats not evtdencet since it was not acknowledgipd or proved 
hefote a justice of peace^ ip the county where the. lands lie, or 
recorded in that cour^ty. That this point w«^ to be determined 
undef the. Act of 17 15,^ which establishes in eaeh county an . 
office of record, for^recordi\;|g deeds, 4Uid declares << that all 
deeds, &r lands in this pi'ovipce, jpiay be recorded in said office^ ' 

H^e same beibg proyed. b^ tvfo of the witnesses present at the^ 
execution, or acknowledge^ before one of the justices of the 
peace ot the proper oountv, .or Ciity, where the lands lie." 
Though the word^ of the second section are general^ yet it will 
appear, by the whole law taken together, that, tbe de^ must be 
i^corded in tb<? cpupty where th€^ lands lie. The foi^th section 
provides for the proving deed^, made out of the pcovince^ aofi^ 
says ; that they, being certified in the jpanner mentioned in thi» 
section, and recorded in the county where tie lan49 lie^ shall be 
a9 valid, as if the sa^ had been made, acknowledged, or prorr" 
cd, in the firQper ^Qnnty ^vfhere fhe hnd^ He, The fifth ^tiop 



- 1 

APKIL 'KMK ^<o«. 3S7 

. Lessee flf Delaacef vt. iraeen. 


i tftiiMwi , t^MMrWHii^ tt«de« and proir^ or aclMiowledged^ani 
r^earded a« a£brea^d»»]iat^ have the aHiie:£»rce, fer goring poa*' 
session lukl sann^ a&d' naking titlB» at de^s of feofment with 

' lively, or. deeds enrolled in England^ ar* there; and that copies 
or exempjBfic^tions of deeds, '9a a aa o ll ed and. eertifiedi uiider the 
9eal of the prpper officer, a)Mdl be allowed, in all CourtSf as 
g«od evidence, and as valid as the. originiJs. The Sth section 
declaVoff) << that no deed or morlgageii or defeasible deed in the 
imtuve of mortgage, shall be good to pass any freehold, or. inte- 
lasat, or lor life, oir years; nnless the same^be acknowledged, or 
proved and recorded, within sis: months after tha date thereof^ 
where such lands Ke, as herei^ before directed for other daeds." 
Secondly. It was contended, that under the l^th section of 
the Confiscation Act> 2d vol. of Carey & Bioren's ed. Ch. 773. 
jp. 1 73, the plaintiff and her husbaAd were bound by the attainder, 
confiscation, and sale of Andrew AHen^'s lands ; as (hey di^ not 
interpose their claim h0^ the jijstices of the Supreme Courti 
within the time mentioned in that law. ^ 

The plaintiff's counsel insisted^ that to open the door for i, 
presumpticito of a deecKo Andrew ARen, some proof should first 
be given,' thgt theie^ was' a«deedf 1 Pi Wms. 653 ; and that, at* 
any rate, there was4)0t*the slightest ground of presumption in 
thia case. That, if ^ the jbry presumed any thing, Hhey moit 
|i»resume a da^ fram Delancey .and wife, and her privy esaflsir 

' . ^a0on regu)ariy faken under the Act jof 177Q. That it was not' 

enough to presume a contract for k sale^which could only pass 

an equitable estate, which would not be a title to be noticed in 

this Court. ■ . . .; -. ' ., 

As 10 the^ copy ^ the deedlhoihi William Allen to Dehnce/^ 

the universal nnderstanding in this State, that all deedfr 

before the fear 1775^ (a) (when another law was passed 


(a) l*b|if If^w directs, tbiSk all deed? executed in this State» of hnds here, 
shall be acknowledged ot proved by oae or more of the sobacribing wit- 
{ie«e% beflbre one o£ the jui^pes ^ the 8i^>rcme Court, or one of the jus- 



LesMe «f Debnccy 99, IPKeen. 

1 ■ ~ I • r — •• ^~ ^^^ ' - ■ - - - 

oh tb« subject^^mighc be proved before ft jiiMice of tM-Si^nPemo 
Court, vho is coBsidered as a justice of pfi^ace in evety comoiy, 
and migiiC be recordefl in anjr covntj^ ki^tlie So^le^ TW a» to 
thi^ 8th section, it had lately bcfti deteribined in the Sopreme 
Courts that it was to be conaWod to extend only to n^tgages, 
or deeda in oaiture thereof. 

As to tlHT oaoessity of a claim^ tbe supploment pUssed 99lii 
March, 1779, to the Act which haa been read, sares Hie liglitB 
of all persons claiming, paramoont to the person attaiDtedy as 
was determined in thiff Coarty in the case of Hylton aftd ^HMnt^ 
and in Gonfon's cases. « . , - 

IVASHIJ^GTOJSTyJ. The single questiqa is, whether a/ 
conveyance of the land, to which Delanc^y and wife were «i<- 
titled, under the deed from WilUanv AUen to them, was ma^e 
by Dekncey and yiiid^ to him, aay time, priftr xi the attam- 
der of Andrew Allen ?' If snch conveyance was nsade, then the 
title of ^the defendant is tmq^uestionable ; since no person will 
doubt the power of this Sta1»e to attaint Andrew Alleni and* to 
confiscate, his piopertyi and nanobafte been ^i%gested, as to 
the regularity of the proceedings agains^ hiq^> and of the sales 
which, took place under them« \ * 

If, on the dther hand, no .such conveyance wa? made, then 

the confisciuioB b out of the questiati^aiui the plaintiff must 


lilies of the Common Pleas of the county where the Uq^ fie, and recorded 
in the office for pecoiding deeds in the county where the lands lie, wHfam 
sis months afler t^ey ar^ executed; and» if not proved and iftcoriled as afixre- 
aald, they are void against any 8ubie(||iei^ pimliaaer or moitgagtiey ftr anrala* 
able oQenderation-^runlesa they be lajpasAsd al albresaid, bolgre tiie proving 
alkl raoofding the deed under which sQchflabseqiltant purchaaer or nalyigeei 
shall claim. If made out of this State, and acknowledgpedf or pvo^o^as 
directed by former laws; or proved by one or moffe of the aubacrttyingwtt- 
nesses, before any supreme judge of thb l^te^ they dial! be recorded in the 
office in the county where the land lies, within twelve months ftoiA the ex- 
ecution. — Nbie^ this law, as weU aa that of 171,5, in dus last case, does not 
jnendon the ocAiniiitfi^grfiienf of tfie grantor. W. *^ 

« % 


APRIL TERM, lt06. ^ 

* • 

. 3S9 


• .» 

LfiwfwTfof lkhaci^v8. ITKeaA. 

«eo9v«f>¥ ^ «yUeac^ k r^i^ilar ; becMiae» hMng abQwn an 
un^sput^d title to tbs IhiiA Med ior>aa obj^ctioQ is pretended, 
exccfit tluit.lfae laa4 wi»*sold t« ikpaey under ivhom defendant 
clauDfty as part of tto omfiacated laipde ^f Andrew Allen* Bat, 
if Andneir Alloi had no titlo 4q tlie land,{|revi0fw to his attain* 
jdei^ tbe cot^scation of hia {tvopertji becai^se of kis offenpea^ 
CDuld not afiec^ an ^ocent pecsoo^ and thiia deprire Mr. and 
'Mra* JMsLWxf of their laod ; who, clauni(ig paramount lo the 
attai&delv were not bouoid to interpose a olainii Ui order to save 
ilieu rigphts. • . > 

r lik Mipfiort of the, Maori's pitf liona, that the land b 
q«estioii' waa convefedy by . Delai|ce)r and wife, to Andrew 
Allen, no dfeed, no contract of aoy kind, jp receipt for any 
part of the.cpnsiiUtfation nfoney, lutve been produced; fmd no 
^ witness esamtned, to jpnpffo that he ever s^w, or heard, that anf * 
aaoh exisied. «. 

In this .situation, without having any gfound to. stand upon^ 


you are called upon- to presume such a'coaV^yapce; that is, a 
deed'exechited by Delancey and wife, made valid }ff the privy 
Bxaxnination and consent -^C. die x>laintitf. C^es sometimes 
occur, where, certi4ii jLhings necessary tp the perfection of. a 
daedi or even, a deed its^ may be presumed. )Vhere a feo£f- 
mei^t has been made, or a copyhold disposed of; lirei;|r of 
a^oidf aRd-ak%«iTender,after long and quiet possession, may be 
wresumed. ^.^o, too, if a mao continues fer a .great length Qf 
time to enjoy lanl, and to treat )t as his own, to the knowledge^ 
Uf^ with th% apparent approbation of the true owner, he know 
t^ of his «if Maj I am jnpUi^ to think, that a de&i or contract 
|^« sale, mifht. he presume^,, if a proper foundation is first 
laid, in which to btuld tht presumption. But, in all such casesi 
^he acta of ownership, thus e&eij^isedif should not be of an equi« 
Tpod ^aturoy and should bo with the fuU knowledge of the 
..sapposeA .grantor* The aiarf posa^sion and receiving of the 
prnfita^ or aSers U> sell, or partial sales actuidly made, may a» 

* . 

360 . . PENNSYLVAKtAt 

Vtaaee of Deluiocjr vt. ITKcen. 

.writ be the acts of a loriioiM po88eiaor/%»r of an ageot, as of 
one claiming title under the real bwnen 

Contider what would be the consequences of a dootrioe more 
nIaSLed Uian that just-laid down. A man Uring here, and own- 
ing lands at a distance^ might, fSu^r pome^ fca^, find iSbtan in 
possession of another ; and the demand of restitution wtml<l be 
met by this noVel> extrayagaBt,.and pertiicious doctrine, that 
the daimant hftd sold and convened his right to him in posses^ 
aion. No deed) contract, receipt for money, or testimony, that 
any, or ei/ther of those evidences of title ever existed, would bei 
produced ; but, he would rely upon a tortious pofeession, short of 
the limitation, wl^ich by law may give a right, as evidaice of «' 
conveyance. Of wjiak consequence is it, that men should, in the ' 
transfer of real estates, require regular QOiy4yances, executed 
with all due solemnities, or that they should so ctutiNui^y en» 
deavour to preserve these mnniments of title-; if all may b^ 
prostrated by the destroying and pernicious doctrine which we 
Kave'heatd fttidntakied in thb cause. ' * * . 

What, tllen, is the* present case ? Delnncey and wifei bdng 
the acknowledged owners of the land in question, (provided 
the copy of the deed to them should be dnermiaed to: be pr»« 
per to be given in evidence,) lived yi the province <^ New* 
York, In 1775, the equivocal acts of ownertfiip, exercised over 
this land by Andrew ^Allen, took place. It does not wpeai^' 
tha( they were ever communicated to« or known by Delancq% 
or even by his wife. In the automii or winter of the same yeari 
he left the United States, passed into Canada, from whence he 
w^t to England, ahd -never again ^relumed to thb countr^t 
The war commenced before his departure, and con^ued undl 
1783 ; and» in l^as, as soon as it is pTt>bable he could ^Um 
information of hie afihirs in this country, he brought an eject* . 
ment for the land in dispute^ which failed. The acts of ontfner* 
ship by Andrew AHen, set up «s a title for the defendant, provei 
nothing agidnst the plaintiff; and^ as to a long and quiet poasea* 
sion, what was it ? I ahoukf reject tlie whole period of t)i9 wv 


At>RiL T£RM, l^o^. ^ 561 


Leasee of D^MAccf its. MVeeii. 


in ttie catnputAfini'of time^ as applying to a case of pf<eiuiiip 
tioH) where one of tile paides was liefond sea; and^ d coursei 
tliere was not a quiet possesrioa for more tfiafi* ^te or ilx years^ 
Biit) wkait has all this to do with the lessor of the plaintiff; who 
labooMl under two disaUlkies, cOTertore^ and absence beyond 
seasi until the year 1780, or 1781^ when the joint estate vested 
hk her by survivorship? It is said, that MrsZ-Ddailpey was 
^ present, when part of the purchase money was paid for a parcel 


of the land; and, on this ground, it is cdoteMM, thai liar 
ailenee ought to postpone her to a Mr, b'onajidey purchaser. To- 

.^is, there are three answers. First; that, being ^feme covert^ 
she could not bind herself by acts df commiMsioTtf short of those 
directed by law to bind her, much less by. acts of otnissimi* 

. Second ; that it does not appear, she knew on what accoftnt the 
money was paids and, ThM; that, if aS these points were 
against her, the princq;iie eomeiided for is inapflieable to mat<» 
ters of tifle, m a Court of common law* 

As to the point made, that Delancey atkl^wife' should have 
pot In their claim, it is sufficient to answer ; that, the rights of 
persons claiming parankhsst to the aftainder, are saved by the 
supplement to the Act. 

' Whether the copy of WUKam Penn^s deed^ ouj;ht to have 
b#eR read in evidence, Is a question of considerable difficulty4 
1 am satisfied, that,^ndef the true censlroction of the Act itf 
iri5, the recording 6f a«deed in the county in which the land 
lies, is not necessary to Ub validity i and, I am' also clear, that 
tike eighth section only extends to mortgages, or deeds in na-^ 
ture thereof. The latter worda prove Hns ; for attl the first 
meattoned deeds s^ directed tb be recorded wher^^e lands 
He, as herein before directed for ^her deed* ; which would be 
nonsense, if the word deeds, in the first part of the section, 
meant all deed*. But, whether a copy of a^deed, from an office 
where it was recorded, dHTereat froen thai in which the lands 
U^ can be offered in evidence, h another question* There is no 
9it ip s4t fi i case. The^counsil tmswmi$ ana eq;aaUy positive, on 

• • 

• ' ■ 

' . • . ^ i 

\ ! 


h • 



i>e«ee of Dduoocy t». IfTKeea. 


* » i 

botksades^ Mto the praelke and general QBddfStaiidiiig* Tliree 
gentlemen of the bar, not concerned, layi they have always un- 
derstood, that the deed must be proyed, in the county m which 
the lands lie. ^Under these cireumstance^ I must recoiDineiid 
to the jury to.find, subject to the og^nion of the Comi!^ vp^^^ 
iU» question.. 

The jury fennd for the plaintiff, subject to the o^mon iji 
the Court, whether the ezeaoplafication of the above deed could in evidenee. 

M'Rean and Dallas, for defendant. 
I^ewis and Til^hi^an, for plaintiff- 

APRIL TfeRM, 1806. &6a 


The United States tv. Johitt. 

r I II I - — I- ■ ■ '- 

The Unitzd' States vb. Richard Johns. 

fitdictmeot for castug* away and destroyinjif a TesBel, of which the defend- 

* ant was owner, on the high aeaSt with ntent to pfejodice the under* 

writem.. V 

^Tfae defenJtot hMA right i» chaile«|re ihurty^ «r tkeJWKBi the mmlMr 
of challenges allowed at OqauDon tfw» in oipilal csmko. 

The law not makk|u|^an oflTence in the mtmer to destroy his «0ne( to die 
prejudice of thi niiderwriters on the cargo, no evidence can be given to 
establish a chsEige against the defendant, for sndi destruction, to the pre- 
judice of it^ underwriters on ihe ^if^f, even if such a charge was con- 
tained hi theindictiiie^ Bfidei|0s of tlw tslne of the property insured^ 
may be gvrei^for tiiie poif^pMiiBf aho«^ indao^oealito destroy or t^ 
preserve it ^ , 

The prosecutor most show that the insutanoe was a valid insorapoe ; and if 

- made by an incorporated company, the act of incorporation must be 
riiown; and it must be shown, that the contract of assurance was executed, 
1K> as to bind tile company. ' 

The pvefldent of €ke incotpoivtetf insiiraBce company, by whom the pni- 

pertgr was assorbdy^alHiougb fe'sloidEhDiler, may be a witness to prove the 

. hfuidwBtiQg of ttM defendant, to ihe maitifest of the curgo; beoaiisc^ the 

conviction of the defendant would not be evidence in a suit on a poiiqr 

against the compaiqr. - . 

A law of a State certified by the deck of the Executive Coundl, and the 
seal of the State annexed, b good evidence of ike kttv, according to the 
^rovinons dthe Act of Congress, paiKd !2Gth Usy, 1790. As to publio 
acts of jiidSfeutf bodni''W o^Aers^ eae^ thd^ ^^ 
. rects idb is to authenticate tiwm. 

T^ words in the indiotmenlt that the defendant destvoyad the vessel ** willi 
intent to gain corrupt advantage to himself" are mere surplUasge, and 

*. need not be proved. It is necessary to State that " the intent wa^ to pre* 
judice the underwriters.** 

The legal meaning of the term detiray, ip tised in the Aet of Congress, is to 
imftt the vessel for service,, beyond the'iuspes of recovery, by ordinary 

V ..jn^aoa^ ■ TIob, as to tiieexlMt'ef «heiili|ttiyt isijnoapiovu with **eii^ 




The United States w. Johm. 

mo^" Badi mean audi an act aa aanaea the vcaari to petiab»- 
lost-|^o be irrecoverable by oidinary meana. 
Querf,— Whether a corporation is apenon, within the niKaitiii|^ of the Act 
of Congress. 

JL HE defendant was indicted for caating away and deaCroyiog 
a vessel, on the high seas, of which he was owner, with inieot 
to prejudice the BaltimcN^ Insurance Company, who had under« 
written thereon. There w«re S^nr counts, the two 6rst o€ which' 
charged him, generally, with casting away and destroying his 
vessel, and differed Ifrom each other only in this, that he Is" 
charged with having directed, or procured it to be dtHie. The 
3d and 4th have the same difference, but they state the parti- 
cular manner in which the destruction was caused, viz.: by 
boring three holes in her bottom. Before the jnry were sworn, 
it became a question, how many .of them, ^mi prisoner might 
challenge peremptorily. The eonnsel for the prisoner insisted, * 
that he had a right to challen(;e tMftii^^vey this being the num- 
ber which might be challenged in all capital cases at common 
law, 4 Hawkins 389, 4 Black* Coy^. 353 ; and the Act of Con* 
gress, (Laws, U. S. vq). 1. p, 113^) which limits the number to 
twenty, refers expressly to the c|imes therein mMtioned; where* 
as this law was not passed tiM 180'5. - 

Of this opinion was the Court. 

The {(mount of the evidence was, thsft the prisoner, being the 
owner of the schooner Enterprise, Ifing at Baltimore, deter* 
mined to make a voyage to Pprto Bello, and to take with him ' 
a cargo, of goods, w^ich h« t^d Butler were to purchase on 
credit. )n June t8Q5, he apptiqd to capdain Snyder of Balti- . 
BK>re, to got the insiirance' effected 'fo» h3fti, valuing her at 
ayoo dirflaris.' Snyder, after objecting to the danger of the voy- * 
age, but advising, that in case he should persist in it, that he, 
should take a particular route, so as to avoid the St. Domingo 
privateers, which' he would fall in. with, by passing betwecQ 
that island and, Cuba, calkd tiie Moro passage; and being as* 
sured by the prisoner, thallbe iqleoM, am) should pursne^ie « 

* • 



APRIL TBKM, 1806. S66 


The United Sttrtes m. Mms. 

^ • m"^ - - — - - - - - - - - 



vDute dms adviM ; ^gn w i^ got th« iMuciikce done, and to gtre 
his notes for the preniiun, whietar hm accordhiglf eflected. The 
prisctter ^lio applied lo Siifder, to effect an insurance on tte 
cargo, valued at 13000 dollars. Snjder expressed hja sorprisey 
that <hi» prisoner atii hk partner covM get credit in* so large a 
qiUMtily of goodsy but was assored, that there wonld be no dffi- 
cnlcy. Snyder accordingly agieatf npen the pmnlnmy and gave 
his notes ibr the amount of tUs sqmi, innired*on the cargo. By^ 
the manifest of the cargo taken onhnMl, it wnaatateAnt 90M 
dollars. It appeared h)r Ihe-^eetiinony <tf •nytev^thaC the pri- 
soner purchased from him a sj^oe^pmlet^ at the price of twen- 
ty-five cents, but the precise bore: coiqM-iiot be asceitained. Ho 
sailed on the V03rage9 and it appeared by the testimony rf one 
-> ^.S^ of his sailors, that ^ere was no opportunity, during the passage 
7^ to sea, for him to unlade any, part of hb cargo. He was met 
with, not &r from Cuba, by a Fvwdi .privateer, w£o took the 
captain and all his handt^ on beafd'the prirsteer, and put the 
whole of (hem except Tayior, the witness for the prisonet^ 
tinder the hatcbei^. Tiia wit n ^S iitt ated, that for three hours, 
• ' th« boat was constantly piassing to, and retuirning fi«m the En- 
• terprise, and at one of the trip9» though surroiBMied by the pti- 
vnteersnteu' generally, he saw goods and packages in the boat. 
The captaiti and cr^w^were -lAerwards permitted to return to 
their vessel. On going on board/ they found all the hatches 
open ; grett'illestructkin appeared ; 'and the store room, fixed be- 
' ti9reenth9-two bulk lieadk,'krwldQb ail Ule^ goods bad bedh 
deposited, entirely emptied. iWy made seil^ and the next day, 
ahout twentyhoitm idte Uny had kit f^ prtvmeer, they peis 
ceived the vessel toiefHE. ' It gradual^ increeaed, and at eleven 
'^ ^t flight, all handy fUte cidied on deck ; but by twd¥e she was 
cleared,^ after which, the witness declared they cou^l notnfree 
her by constant pumping. The Aext%(oming, the water CO'^ 
vered the cabin floor; and about seven o'clock they all aban^ 
doned'her^ waterlogged, hHvlig .only time to ta):e with* them, 
. a smtt piece of raw, aai anitfaer ef boiled beef^ and a sn^aH 







Tlie United StafcM iw. JtflUM. 

quantity of hnwA. At tkU tin«» thejr were in sight of fauHlf 
which they reached thait afttottood. Not findhig water where 
they landed, they coasted alnog^ and in About thuty-«x teiir% 
reached S^ Jago de Caba. 

In a day or two after, captain H«g^ee» of the FmaMttp, 
met with the Enterpnae et aea<he» dedca covered, and the w»* 
ter flowing thxoogh the hatfima He went on board, and bf 
j>nnipuig, reliered her ao, thut wkh great difficulty, he waa able 
to tow her lo the Mero caaHe. He found her saila cut, and her 
Hgbt sails gone. With the assistance of .ten or a dozen hands, 
obtained from a gwrde de cota^ lying at the caslie, and two 
pumps, he entirdy freed her ef water, in about eight hour^ and 
then perceived three anger holea in her bottom, about the s|ze 
of his forefinger to the knuckle, near the keel, and in the store 
room, the ceiling having been firat cut. away. • After stopping 
these holes, the schooner *wse perSsetly tight. He carried 
her up the next day to 8t» Jago, and moored her ahcrat fifty 
yards from a vessel, in wbiekhe saw the prisoner then standing. 
The prisoner never, at any thtte, came eo board the Friendship, 
or made any inquiries respecting hia vessel, eKc^t that the 
day after she came up, he inquired of one of captain Hughes's 
sailors, without any question fhim the sailor leadingto it, where 
the holes we>e. Captain Heights applifll to the consuli wiio 
sent a letter to the prisoner to ettei^ his oAce. He thore 
ofbred to compromise with Huglbest which he yohwnd, but/ 
charged the prisoner with havmg^ destroyed the vesaaL This 
the prisoner dmied. The earfilwas takra possession of by the 
government, and «aftc^ twenty jdaya' ,pi|blie notine, was sold, 
with the VQSgaij .podncing eleven or twelve knadred dollars. 
Hughes pot in hk dalm, whieh wan nol adasitted, but the pro- 
ceeds were retained, and the etaim of Hughes is still pending. 
None of the witnesses etPer saw the prisoner at the cofiee house, 
where the Americans resorted, or in company with any of them, 
whilst et St. Jago. Mr. Douglass advised the prisoner to Uear 
up the reports which where cirrjlwtinfc tha^ he caused the de* 


The Uniled antes «»* Mm*. 

Hpictfcto of die ?esMl« TUihepKnaliedte do, but never toc^ 
may tup in the bafliiievi. Wbe^'firat chafed .wiHi the fact by 
H«{^M%iie wid, hfrwmiotiDttuted liei dthe boles weremadto 
hy the psira.teeniDem ^who bad raifeed bun of goods to Hiq 
^ba^amt of 6100 d<Aai». At another ^me, he said tbef bad 
toMM Ite of goods to tbe'lBttont of 13000 dcrflan. The 
French privateer arriTed aft St. Ja^abont this time, and one 
.of the officers called upon Il'Wftkei to §o vkh boa in seaiefa of 
Johns. They went to a bouse wheveMttwy . naiepnisod boloi^ped. 
Sair Idm pa«B from. Ibe 6aait't» the bMii«(biiiy Uit be was de- 
pied by the keeper of tlto- bouse. ' The yffJsemsr nerw attended 
at the stfe o^the vessel and eargO) or%t aH interfered to in- 
terpose bis chum. He never ^ve aolice to captain Snyder of 
the loss^ or made an offer toa l^ a n d dto * 

- These were the circtuMtteees valied upon to establish the 
golH of' the prisoner. On the other, side, it was inaistedy tlukt 
they were too alight to eoaiact. bioif and that there was good 
ground to suppose the JMlteato bate been bored by the F]%nch 

During the esaminatien, the fi^wiog points were made at 
the bar, and decided by the Court: Ist. It was objected by the 
4, counsel for tbe pmoner, that ai^ evidence should be given re* 
^^ecting^ tbe insnnuMe on the cargo. > That the Act of Congress 
eJibly applies ito the rstlify aitayrhunilngi or destroying, a vea- 
ael) by wy atl«r than the* owner, «or if by tbe owner, then it 
must be to tbe prejudice of the ubd^rwrttera on the ve^aelj or 
the ownem <rf the cargo, or tbe other owwsvs of the vessel ; pro- 
idded the Cow» ohidd ibftib ilsAf at Obevtyto rc^ the word 
t^ which in^thct pare of tbe sentei^e, wbielr lesp^ffts tbe own- . 

- ers of tbe cargo, or tbe other owners of tbe vefsel, makes non- 
sense of tbe scintence (tt.) • • 

(a) The words ore; **if uiy owner of a ship or vessel, ahaB wilfully casC 

* away, bom, or otherwise destrc^ said ship or vessel, with intent to pr^u* 

* dice any person who hath underwrote, or shall underwrite any policy tberc/- 

00$ <v qf aqy oinisr otownstacf food^Uaden tbtt^^ 




Th0 United St^M w. JohaB. 

■ I »■ I II.. fc I ■ III! .1 1 1 1 iwi^-— ■— — »-^<w<y^MyBih««ip^ijM 

By the Couru The itir does iMt make^k an.ofbnce in th« 
owntfT to defray iiiB veMel, t» die pr^pdlce of undtervtiliera 
on the ror^; and if it dld,tlttt-iftiialGhiffedmtheindietaMitft 
and consequently DO evidence can be ffweB^teestaMiih It cImu^ 
agidnat the defendeat) for.ft-deitrttOltaito the pfqudke«£ tm^ 
derwritM9 on the cargo^ But Hie attorney may nevet^Mle^ 
giiKe eridcaee} and ao may 'the defendant, of the catgo bemg' 
iMBured, and the Tehie of ityiift aider to show the ^ua imimo, 
the moive ivMih ni^ haire influenced the defenduit to de.- 
atroy, or- to avre the wmM> If the« caago was gxsmtly. over- 
valued, it might aoggmt a niotive to liie prisoner fiir destroying^ 
the^vesa^; and the mterae, if npt oveivehied; and stilt more i^ 



The district attorney oftred to read the policy of itturante 

on the vessel, which was ohjselad ldi» without produebig the* 


charter of incorporation of the Baltimore Insurance Company^ 
2 Lord Raym. 15^3* 1 .Bea^ Be 9«11« dO. 
. BfihcCaurt. The gist of the hfti re is, that the vessel was 
destroyed to the px^udice of this company. Unless a valid in- 
snrance was made, it could not be to t)ie prejn^e of this com- 
pany, as laid in the indictment. To prove that the company 
can act under, and be bound by a commcKi aealy ii amat appear » 
that they are legally incorporated and aiiitiMftfised ao to acft. 
That the president /iroieai^are, wlu»«aAzea the aeal, could- 
thereby hind them. The ckartet ef inompot^ftien, therelbre, 
must be producedi • ' ' 

It was accevdiqgly feiaL 

Mv. M'Kmi» the paeiiis^tt of Hie Brttfmeaa Immrance Com' 
panyi was ao% otf^d as aurftneas, to proTe-lkc handwriting; 

or owii«» of the Mid v««el^ he ihall ^ifibr dcaidi/' Sic« kc Tfair 
Satended to be ahnoflt a fitenJ tnaicaipt of the fourth and eleventh of 
QeoEge L4 eieept that thqae rtafcoles sayt ** to tbe prejudice of any penon, 
JcCi or of any owner or ownen^" 3(c* But, m this kw, the words are • 
changed to *«with intoit to prcjndicef''' and t/ia inserted, instead ci tf. < 
ihit,to]p9keiieniaafj^the.wqB(l>/BnistbecayWlra^^ W* v 




AM^i rtMMy \m. 





Tke t>ilited States t». ^ollm»* 


ofNfte defMbM, l» tii«tn«niftMt of th» tfTfo^ He wasobjeci^d 
' «M^«i Wilut ftStMUoMer, anil thet«fi»e iiit«t^lkt^.to cofiTiet 
^ fitfiMVerk 1 F. Wii^. S95. 1 MnawHf ftS, 35, weM read. 

Jy «Ae»€aMn. 'FlwcMvicikPn %f |)rtsoner wotaM be rf^ 
ei»itnie>» in a-eiKt ofitlr^iibllefi AgvinstsAe comptfbfi and 
tiilrrefci'e the wltneaa it not InCoMated. (•) 

Vpoti'fHfqduGing the Act ef the Aiite «€ M atylaad^ iaDarpo- 
fflitiiig the Befttimore Imuraneei^S^ftnpatiy beftft^ mentiotted, it 
wtmccmMM by the derii ^ the £xec«tiTe OMi«cil, «mL the 
lAeal of the Slate was anDexoi. ThhivmAohjected^to^ became 
it iM not appeii^f titti l^ivai etitfaCBtfeaUi f^f^ao eilcer, who 

id power to do k, a«|jto tOtat the stal >6f tbe State. 

Jfy tkt mn^l The A^*^ Coogreoii at to4ai ^utlic acta of « 
laiiriaHwiditfa and mhera) etteept tt|^ laws or Acts ^a State, 
direeto who is to authMticaite thent;^ but as to the latterf it 
wktef^f re nutfrss the seei of the Sttaw to h»'anne»ed> Thislawy 
Iptiog so anthenticatidf^s |M«per ef4denoeV wtthiii the true con- 
stmctioR of the Act a^Ci»gesso. (^) ^^^%^ 



(p) ThiB opinioii ia4iipp<Me(^ by the casesiif Siiig ei* Bngr^ €»8es Tem^ 
ifvd. 358 ( Rex w. Boston, 4 East, 572,} Abrahiun i». Browiii 4 Burr. 2251) 
Sirath t», Prager, 7 T. Rep. 60 } Mastins vs, Drayton, 2 T. Rep. 496. See 
abo* Philips's Evd. 38. 87. ' 

The only exception app««rB to be the case «f Ibr^erjr; and this is conn* 
#MA as an anomaly, amd la macheltelton by a caae decided m JVew-Tork, 
tMfilpi^|B^*fOk Vl'litve no lisubt 4iit ft* ouglit to he ik0# oTemM* 
Whedier a^BAfietion in a eaminal pfoeeadiiy «mi be givea In ofidaoae^Ml^ 
acl¥ilactieii»i04tM^ni'a^tfe8/M7. 2 PhUipa's Evd. ^7. W^ 

H^ilurtothe ihxM ef entries fai ptdiXo bodlD^ HvdNi^MMlacl, dist 
wheie aa QO^Kip$tiB of a peblioattuie^ aad a die t M i bl a Jm ew a am uj as «^ 
«wa«ifa9iywme9oa^b^adnhtad. 2 Philfipt^ Bfd. 380. 

, It is a gcufeat wdQ that aq^pg% ajithyn^irated by apctwin ipRfSfiled % 
that purpoflie, is good ev^l^nce of the contenta of the ori^na]^ without prgof 
|ffitt.beiag ezaimned. Idem, 392. • lllhefe ft deed ia by law to be enrolled^ 
the endofaement by the proper eficer oft the baek^ i« evidonee of enool* 
^SBt^daoiii* BsSBuncfl^aweraeepieaaffilaBttgiapeUiciw^pe, inaybe 
givjWi i»«i4dance. Glib. Bfd« 47. Peake^iainh 94. ftwoakl«^i%9n 

;^ A ' 




Jh» .United states ,01. Johns. 


■ r ■?■ . "' 

. The |y>int» i<if toy>JiJMd in .the HijjUjMimn w<il» m foiiy : 
1st. Thata vmmI cawmt be «ud to be ^^ «iit away or d< atw q> * 
ed»" if itia ia afteff|irap4« cficovered aipA/astoffed tp beer imw0t 
tkui^Qlpu A teaad naa «irand«d t^^bbiwciii^taio> »«4«»i #ft^- 
wards got off: i||^n a^lAdi^im^iiivagiiiaat ji#c«|^^ 
the Stat. 4 GeQ. 1. c«J2| ai^d li Geo. 1. c* 39) it. waa deuw^ 
xaiaed; that if % vesaal kfi aun aground) or stranded 'on a rotpk, 
|p defraud uadeiwrkers» in a^Goi^ditiQii to4^^ea8$lf 
reflttedf »Ue.<^iuu>t be «aid U> fM ^^ awa^, ar.^MU^e^. 
liaat'a FUm of ai« Cly^p 1Q97, Ji098, decided in IT.eJi. John* 
floa'a Diitiiomny wfajV*QiML^ ^9S^% AWf,' meam (o.aUpwredit 
ahipwreck ia to i^UKfy^ by dasfaum.Qii.nichfl gr aandv Wl 
^ ^ where a ahip |»eriahea« In fjiis.casoy the ¥eajd( w«a easily,] 
paii^i and by pua»pii|g| ao^pfaWgWig ^ holea^ l«9 W 
and atauiKh as ever. 

2d. Thai presiuqfitjwe evidence ia pot auCfiKJbeaiito ^oayifit 
the priaocner} and to fffov^ihia, the ooanael r^.B Mad*4r. 

^.#«.r4. ... 

3d. . That the indictia^jtt states^ that the prisoner deatiof ad 
the vessel whh i»teiitfoo«to prc|}iid|ce the insorance Compaof, ^ 
and to -^^ain eprrupt advantage to Ainl8e(f; whereas it wis 
proved) that the vessel was not insured for a farthing niore than 
she was worth. 

^ 4th. The words of the la^ aoe),'^ ta,prejudiQi9jmyi^r» ' 
fi^rtan* who hath uQderwrate^" bn% a c^tf^ic^f^^^ ^*#P<^ a-pei^ 
fMt) or pesaqas. Plow. I^epu ir7f J Leach Crown. &|ur/2l>S. ^ 
-Strange 1541, • / 

ia apawer ta thj^ laai poMa Mr. DaUaa «Ml i Woo^umi 
IBS, 1 M9d. Bsp. 164. 2j[nstit. r€3» 703. 

Sth. The indictnieat statea the piiaoner lo be owner^a casr* 
Inij'^p er vesadt, called tiw Bnler]ptte of BmHrnore^ t6at ^. 

the ndiole, tbat an ofioe <iopy» csr(ifted» is not •officient, unleM the olBcia 

' ia expreii^ auUimnaed t* give oopie% thoogh he he the keeper of then^ 

andiB«idyiriaedto»iaqeadthi i<igiwJ tJicyaMStbe 

in thewBJiM^y wiy to be sppiaf 


:.r '\ 

m • 

AJPRttsrtBMl, rsoi. 


m I jrf 

GNJAm fV* JOillB» 


jiit Miymg ««^BMhiiore.*' The objMMif «*«», was twoftMv' 
m^ th i ^ tteM PUce ; md M^ her b»i>^ c li lwi' a vesw^ o» ahi^ tn 
lite w^MMftto. An uMMtmast thkl A^'lOTl^edy or cauaMl to 
W t»frt^ is trfA ' 2 Iftwk. 99r. t. f9; 2 Rel's AMd. m ^ 
Mod. !«. z' 

eth. l^ieifinHre^iat captain Hofftst, the satfor, waa I w ieie a t ^ 
«A, ao far at tdaftt as to-diacf^k hUn, it was eontdadod ( iMI* 
the Enterprfce was yolilntarHy injuved and ab suAiiil ii ^ <iite be- 
eiknae a deMkt, Md lielonged to the iMt fMmt ^an^Mt ceii%% 
ifiliigbes shoaM be abte te^ cwi 4N i ihe iWfcndaiit) he wweli 
beentkled to vecererftoa Hie Spanish goventnient) tM'Wtole* 
iMMds of dke^'teel mi daveo: elMfr, fTMo te «ttidtae4 
a m&bemttfj not>vo^nflu%'pc0dh€«d hf the ha aiie ed 
•€Vmfitf/W» 9 Vera. 9iT« *4Lai(cli SNN^Nwe reidi 

* WjtSJfUmTOJ^^'J:' dcHTereithe BH Mfct as follows: Tlie 
Obait-SfeMc it ontt uC tisi i s > y' i #- gl l M^ i^fMen upon these db^ 
J001IOAS9 wMd-h appear H^KHf ine ftMse W'^ihe indRtniailitf 'and 
pdittcttiaify th«(*whi6h la madh «^ a cni^porlie iiodf ^ hiteg: ift- 
Uttded id tile w^rds « person or |>efs6na/' iNMose thd'ddlBiHlant 
sdkj^ a^idl hteiadf «f thean, sbSMid fie%e ftvid {pifl^ on ctM> 
iMi fai-arrsstjaf jedgiMBt. Ae to the thM ^ehjeMSn,4tet 14 
Upstated to tare deattt)^ Idft sessel, ifkh' %yHm l» ipnn ce#^ 
lalpt a dy Mrt ag# tnwmself) Bte«^llhae iMMhf aremeM^ snrplua* 
ayev and nddd not hare heeiP^^MM. YiMi httent IPS dtfiaitd 
the uflMemMiars, it was iMiellsarf tv'staley iMdlidl sWidd. • 
4MKPethis pitMrtF^ <fatt bdwKdSd fjfsBlyv^ptM dt^st bd satSstdd 
sf^heMMrihcr^i^*^ ist.»TOaaJdhna ww < l s ewner sif Hw 
BdterprMSt ttte h^tlniewihil^rf* wr ^That she was Insomdi 
Ms is pK>¥hd. Sd^fSdC she was east anty, dr eth^p^be 
destroyed. This is a nbtdd tinestkSi of law tod ihct/ '^he 
i|ueation of U|w n new; «d'in giflng a legMl d e iuttio of those 
werdsy w^ hare Terf^faw Ao«SMs ^ l id h i uiattuu d» Msort to. 
■m dNr<bftdhHastciina1iuiiihHL «Mali f«F««»dhtMii dUete 

» • 


372. ' jnemwrLVANiA, 


Tb» United SiMteft w. Joliai. 

(ive die iQUeMM, me am ^ opiawn, HMtt^to ^4ml9%i/f a Teaa^** 
ir«» uaftt Wr for — >viga>4>eyoiid the lH>p«i of recovery by or> 
aJnaryjifiUM TUbt w ta Um e«Uiii«f' Oie iQJwfr, i»i ya — y 
viom wMi <^ cut mmpff^ ie:k tfe* fioeral farm. Cmriay awif: 
it, lih» bantiagt aapecic* of ifimtmnlwu Botk of tbMa amfn' 
ftueli an act a« caoaes tka veaael to periah; t<rbe.loat; to be iff* 
few oreiiMe byerdinary iMH^.' Wbetber»ii^n ^M^eiridence, 
«9<ki^reeabla to tbia definkioiH. tbe fateipnae 4vea caal ««r«|i 
or duwMii^irfj h a matter of fiu:t for your deciaion. * 

4lli* Tint cb^t^jpNTiaoMT perpetrated tbeaet^or dtetued oa ' 
yreeoredit to bek*«Mi|pori|l&«» evidence iajiotneoeeaaay. Cif^ 
'eiuatlMfelial evjdawe ia aufficli^t^eiid aaiDften more f w a a M ie | 
Ito connaee the miwl of tbe exiateaceiof a&ct, thpr tbe piiniaii 
iviil^aee of a wkneia^ ttlM> auy 4e niarateen ; %r l iaiae B a eo»- ? 
cateaatiQMt aad a itneta oi many cirqvpMttaae^ m a de eiat bf 
different witpeaaeat ean aeMom be miacabeo^ or fiul to dkittke 
truth. But then thoeacircamtanceai ahoitfd be atww|y ia thcaa' 
e^vea, abouU eaeh of thiHb ftea^r^^ihiow tight upeiti and to 
yrore^each ether, eiMl the reenk-of the 4rhole» ^ould be to leave 
vm doubt upon theioiiid, tliat the offiqnce haa^been eomanitledi 
and thit the accused, and tie other^ cottld be the peceon whf^ 
eoiMAitUid it. Under th^ee pDrecautkn*) iat tte oateof the 
yriaMNP be examined. The Qyat we- him ^ Ml»> is «t Belli* 
jaore,the#waerof tbiaveaaeUand ha? iag it in fiontempiatief 
to mahe a-voya9e,.iKlili''a fiiiie hfkmpaig toi^p«fr^JB«iier aiui 
l^oaeel^ la PorlD lilka. Hofiaaiivee her to be jMMed by the 
Baltioftena InajaraM^e. ConpaQfy at^ jb^^QO dellaireind tfee ii»i« 
ae«i>' «rke m%ik hiajMnd. on the occf aien, mA apijinring^ oMke 
part ^ ihe- ynWMwmion, d^fectorea that ahc^waa felly wotth- that 
enm. Wtnl «ntlYe^ then, conM he have lortieatfoy Iter ? Hi 
podl ae^nady be a laaer in reapeet of*|iie t«lne of the yeaw fc 
hut alt Wa oljecta of lyade, and ail the pr<£u which he no doubt 
anticipatodi (br w^r.else ahouM he undertahe-the voya(|;e2) 
would be tkip^ rtnf^ilyd ^ in the fi^st place, we fiud.hini \at 
0urinA MMO 4oilaia qb ■a aeran^ aniiilaiinr iiy ^le flMttifesi la 

« . 

▲PBft. TSMi, no0. 3ra 

Tb« 0Bilfld 0ta|»s w. J«te. 

b» yorth Qidy 94»0. rMtaw Atfir«iiihi9^iB«p^e»»«ift#v«r» 
vateaiion^ 4fid GO|ii«quealij^ t« aito4 ar iiMaptatftoa to dettiiosr 
t|i» owfo. Botskwe it iMt pot m pp giii 4iwit tta fragiit wts 
uia!m»4»>pit tmcMi«Mii9 wHlMivl iM»diUting ftfra»d» nof-wwh 
tif>>ikmg% espMt^ peefitst ^ would probdbljr bet loser even 
ift reayeolMif l&e cargo^ oi^ ot «iiy rate,. there eould exist little, 
iCi4Ui7 lewyfnfian> to perpelwfee ikm crkne with whick ho Jb 
dioticed. We then felkw Urn fimm Baltimore Into the VKaot 
Iprlis ifittaBd find^itn in Ae fMsaesaioii of Freoch piMrateevs*' 
men; nhoae agnAttcty if the vitaesa he 4>olsarodiir watkA |in»vo 
tlMMDi raikor to daaorre the Bamooffirilea. It appeavS} l^ tho* 
tootimnay of tbo«4MM iiiiniba» tkat <the whole of the eargb 
Ukma in at Brif jijiif ti WIftoto iho to>di of these ia e ^art you 
waB piigf^tmm 1m (StUenoe, «h#h«r any, asd wi»t paBk,«aa 
twiiia Oittiy them, in ahout tweoty hmm after the priaoiier 
and'Ma 4ir«w wei» Mitored to the Totetf, ^she waa discov«i«d 
to loakithie diffiail|y of freeing her inrraaaed; hut yet we find, 
tlial in cme ho«rt 4ma elevemi^ 49ireUib, she waa freed ; a^r 
wJ^h, every exertkmjiiaai mnde m warn. It aAerwa»da»appear« 
ods that the leak waa produced hf three holea bored in her 
boHMi. -llmae moat haire^ been: made by thn-priratBeramen^ 
bf MbMor.byamaeiaf hia cjfam; bacauae she was wat a rl o g g ad 

^^eB^^WB l»flg|gPV ^e^^mPIVa^Pft^^^V igH0B^r ^Hl ^^y w^UK^ ^^Hh^V ^p^W^^S^P^w^^P^W^^^m 49 t^m^^ 

• ,taatti47.diAc«ilt to ariwnnlAr ber Dot^iatkiDg, jar so long a 
ti»s6 after her Itbyation^mi* that <b# jeefr/aihettiri increme in 

* the praportjon it did, without any ttm apgnnant imgae. I elf 
it ia. ^ii^ to accounft^ftir aai».nifci«i we a < » |a tf s»Hhl»-*Jiftcr 

. mattsg the- holes, they ^ama brtiw ii ihi i|y. ftBod i^wd^Aer- 
gjmda fhyand open in.sucomiir>nj by tfta p te a an re of the water. 
Aa to tUa, yo^ must be the proper judgea. StlUat is not dear, 
that tHa prisoaei mirio ihe -bttikm. .Tbe store fOooi^ it is tme,, 
communicatad with the cabin; but it appeara tbat the Iny-gt^ 
nerally remained in the doer, and it is poasiUe that Opportu* 
nities may ^have offered Sir the craw to have done the act. 
Tbeae tftiftgi aremevaly a^ggesjoi lor your oanaMamtipn. 



Tht United Stetes i«i Jtkam. 

It iraot lew difficalt tb avcouni liir tiie pviMHier's conduct^ 
after ke aaw fak vonel in sflfety at Bt. Jago. If he had not 
wished her daatrQctkia» nodnogi ce«ld have been more oatairaly 
than that hb should idinediate)^ have in^dred into the caromft- 
stances by which his vessel had been sared; into the causes 
which had produced her supposed loss^ and that he fthookl 
bare taken steps to reclaim her. Instead of this, he^at no time 
called npon the salvor, but, on the contrary, he seems to have 
taken paiaa to aroid hun. When charged with being <f|ttilty of 
having done, the act, imd «dvi8ed by his Msnd to dear it op, 
we find him contenting himself with a ^ simple denial of the 
diarge. He never appeared at'th^ sale ef the vessel or cargOt 
or intetposed a claim |br either. His inoMislHeBeies ; at one 
tfaaft dedsnng that he/ was net insufed; sometimes sayings 
that he had been plunder^ of goods to theHmomiC ef «WMI 
dollars; at anothor^of 13,000 dollars; his avoiding the- com- 
pany of the Ameiieam ; bemg denied to persons, who oamo'. 
after him : can witb> diftcuky be reconciled with the character 
of itot i s ss w hether with that of ilBoeeiiee, you must decide. 
It is proper, libwever,'to remark, diat these circumstances do ' 
not necessarily prove more, than that he regretted the recovery 
ef ihe vessd apd cargo. A man, whose- property is^Mly, or 
nssi^ than covered,, may not be sorry thift it is kat; andyetbe 
might be very far above the conuftSHaoii of a crintinaU act lo 
produce the loss. It is far you to e^/Whethfr thiseonstructioii 
sHsuld be given te hie cendml. 4 

- i>poa the whole, yeu wW wei^h Hie evidence, and net con- 
vict the pdnmer, If yea deubt of Us guilt. 

• "'. Jury fimnd the /irinnernot fmm^, 

^awloi C. and J. R. IngergoUy S. Levy» and fiwng^ibr de* 

Xpul Tsam >»p<. 




fifqstw. Rodney. 




Wbat win be conaidered a covenant, tunning with the land, and binding on 
the party in posaeflnon; although sutii party has not executed the oeed^ 
- conveying the'«aine to him. 

k HIf*irA8 an action of covenant, brtnight ^inst defendant 
for many yeiira' ground rent, due upon a lot of ground, con- 
veyed by plaintifiT to one Perkins, in fee, and by him conveyed 
by indenture to the defendant, subject to the ground rent. Th8 
declaration atates these deeds, and 'the entry of defendant, and 
the non-payiB0BBt of irente, due aince' her posaesdon underthe 
dtfedtoher. < 

, The deed to the defendant, not being ejtecuted by the de- 
fiandant ; her counsel contended, that it was not her deed, andi 
that she could not be sued on h. 

iBy the Court, The defendant is bound by the covenant to 
pay the rent, in the first deed to Perkins, which runs with the 
land, so long as it is retained by the defendant. 

Verdict [for filaintijf. 



Coiutois w. CarpenHer. 


CouRTois v«. Carpenti&r. 

Action on ft note paytble in mgar, md given in Chsadahupef where a par^ 
tjcular custom prevftilsy in relation to the payment of sudi notes, in 

The lav of the ccuntiyt where tbi^coiiliact ii made, must gwem hi bm^ 
as in the Coucts of the United States, a Jiid|;meat can onlf be given in * 
money^ no other recoveiy can be had upon a note for a ccvtun sum of 
money to be paid in sugar, than for tlie sum of money nsntioned in the 

When* by tiie law or custom of the co u i itry where such notes afe gfren, 
no interest is payable uponr tlwm until judgment is obtained tqpon tliem« 
in the Courts of the United States^ interest belore judgmentt wifl not be 

X HE plaintiff aod defendant having been once subjects of the 
French government, and residents at Point Petre, in Guad«« 
loupO) the de£Bodant gave his note> '12th April, 1793, pfo^ 
Tuising to pay to the order of plaintiff, 7812 liyres, 16 sous, in 
Bugary as money, value received. The defendant is now a na* 
turalized citizen of the United States. 

The defence was, that these notes, in the island of Guadiu. 
Ibupe, form a kind of circulating medium; there being veiy 
little cash passing between the merc)iants ^d plaittersyor mer- 
chant and merchant. That when payment b to be made, or . 
suit brought, three perso'hs are called upon to value the sugpr, 
and say how many pounds o£ susar shou||^ be delivered, in sa« 
tisfaction of the sum mentioned in the note : that these sugar 
notes are always in a state of depreciatien, from tweaty-five to 
forty per cent, below cash : that, in 1793 and 1794, it would 
have been easter to pay 3Q00 dollars In ^sugar, tiian one in 
cash : that these notes only bore interest from the time judg- 
tnent was^ rendered* or they were registered befoic -• notary. 



• • . • 

. ^ • ' • f, .* ^ ". • ■ - 


, ^ • . - •: ' . . 

n - • . ... . 

• ••• .V •..'•••' . ', ; . 


* ■ " • ' < 


.• APRIL TERM, tjKWv- • ' . ' ^f 


A * Couztob t>*. Ciurpentier. ' ' • 


' On these &cts, which were, proved, the defendant iDftuMlf 
first ; that the jury should value the 7813 livres at the depre- 
elation thus prayed \ and, secondly, should give no interest, 

WASIflKG TOJ^i J,j charged the jury. The laws of th$ 
' country, ifh^^ this contract was ipadCf mu^t govern. These 
notes were payithle in Guadalo{||ie9 in sugari at a valuation* . 
The d^Daii)int, being smgd; b^v^ c«iin# |wiii{4ftiiH tf hia situa- 
tion is not made worse tha%4t would have been ii^ Guaiialoupe. 
"""But, as according to ourfitrms of prpce^dgig; (and, as to^theiiEi, ^ 
)Jbe laws of our country must j^ven^,) a judgment cannot be 
rendered for'^ui^iu*; the value in Qu>ney must be given^ which, 
19 effect) is the precise sun^ .stated in the note, For^^irhether. 
the sugar was worth ope Uvr^ or seyen livres per poun^, stil^ 
when .that sugar is tur^^d a^i|in in(o mpney, it must com/^ to 
Uie Sjftmesum. As to the fact of the depreciation of these notes^ 
it should not be con^id^ed i|ny moiie than in rendering judg^ 
'ment on bonds here, irhj^cjj^, we jjj l^npw will sell, in some cases, 
at a considerable di9C(H|Dtii;}r c^ypiu 4ks .to interest, ncme should^ 
•.be allowed \ because, it is ^pyroved) that, at Gu^aloujpe, t^^ 
. do not carry interest, but from the judgment or registration. 

. The jury found awerdict for tilg>b^\ff. 

Rawle, for plaintiff. 
M. Levy, for defendant. 

^v *»• 


.' « 

• •• 



» • 

• . » . 


« • 








Johnson V8» Phoenix Insurance Company. 


*he ordered the insurance, either would wfAA the policy. That If 
the jury 'should be of opinioh, that the captain, in his letter to , 
the plaintiff of the 1st of November, infonxked him of bis inteo- 
laoii to sail that day, it might be very material to the risk, that 
'he' should have disclosed this information to the lietiendants ; 


ind, the defendants would be exonerated^ Tbs tkneof. 
a vessel's sailing is always important; particultt^y, i^ at the 
time the Insurance is effected, the vessel is out df time. The 
average voyage irom Richmond to Philadelphia, is ten or twelve 
days. This vessel was insured, twenty •four days after ^e had 
sailed, and of course it was important Ibr the undetwiitera ta 
know, that she had been twenty-four 4ay8 out. fitit it does not 
appear, that the captain informed his owner When ho should 
sail. The order of insuruice mentions, that, on the 1st of No- 
vember, she was loaded; and we must presume, tkit this was* 
the information communicated to the owner by the captain, as 
the contrary does not appear. It -would sieem, as if the undet^ 
writers understood, from the expfessiofts used, that she bad 
sailed on that day ; as no reasoo for detention, bejrond it, ap* 
peared, by their demanding ten per cent, premium, whereas 
^ the common premium, on such a risk, is proved to be from two 
to four per cent* As to the letter from Hampton roads, it does ' 
not appear thfft it ever came to hand. 

The next pdint is the most serious ; because, if the jury be- 
lieve the defendants'' witnesses, they fix upon the plaintiff a 
knowledge of the loss, before he ordered ineurance. Against 
these witnesses, is opposed the testimony of Ute captain. The 
evidence cannot be reconciled : one; or other, has sworn to an 
tmtruth ; and therefore, as is conimon in siieh casee, circum* . 
stances to prop the positive evidence have becif resorted to, and. 
the characters of the witnesses have been attacked on the one 
side, and supported on the other. 

The circumstances are the following: The captain arrived 
al Vew York, on the 18th) might have writtenon the I9th; his 
, letter would have gol to Philadelphia on the 20th, and would ' 

^ f 

• Y • «I 

. ) 




Johnson vs. Phoenix Insurance Company.. 


have reached the plaintiff on the ^2cL The messenger, we'fiatf, 
• was sent off to Philadelphia in great haste, which might be tbc; 
night oT the 32cl ; would reach Philadelphia in the eyeniog^of 
'the 2Sd, so as to dause the insurance to be effected the diay it 
was. A free .tetter did go on the f^Oth, to vhe office k^t bf 
the plaintiff ;. and he was the only person there, or in the neigh- 
bourhood) enikled to this privfleg^. The hwry of the plain^^ 
tiff, just tibout the time, when the mail, in the regular course, 
vould arrive, in sending off a messenger, and the time neces- 
sary for the journey, .which would bring him here, on the day, 
or preceding evenings jvhen the insurance was effected. But 
if <the letter^ ordering Uio iasuraace, was truly dated, when it 
"was written^ and was immediately sent off; then it is almost * 
impossible that the plaintiff could have heard fro^i the captain' 
liftdr his arrival at New Torlt. Ia tnewer to this, it is con-. 
' tended, by the defendants, that the letter miut have been ante« 
' dated, because, if irHtteH on thai dayt it might have been sent 

* off by mail on the 3letf so as to iMve got here before the 24th9 
and therefore there gouM have been no reason fot sending • 

'special messenger. If the letter was antedated, then this itseV 
is strong evidence of fraud, and gives to the whole transactioik' 
the appearance of unfairness. But if net antedated^ still, if the 
plaintiff knew of the loss, bef<»<e it «ni eent away, the conae- 
ijuence is the same, and he caaaot recove9« You are the pro'* 

• per judges, of the credit, and of the weight of evidence; ami 
you must decide, vpett an iz^partial consideration of all the cir* 
eumstances and facts, whether the fraud, impute^ to the plain- 
tiff) is proved, or not. ■ • 

The plaintiff snffered i noiiiiiit, after the jury had returned, 
and were ready 1^ give in their verdict. 

Tod, for plaintiff. 
* Smith and Uallowell, for defendants. 


.' . . 

A ' . 

« > 

.• » 

* ¥ 

APRIL TERM, lao^. 



Simonds vs. CJnlon Insurance Company. 

• • y 

fired into. The cs^Uun then requestod teave to go to Citha \' 
but was refused ; and he was informed that he should go to no 
other place but Jamaic|i. The vessel was accordingly carried in, 
by the frigate, to Kingston, where her cargo was unladen, under 
the care of a ^ustom- house officer, w^o had previously refused 
to permit the captain to clear out to any other, than a port in 
the island. . The cargo was delivered by the captain into the 
'custody of it tnerchant at Kingsten, who adyanced a part of its 
value, and the captain then returned to Kew^York. The cargo ' 
sold for 3,600 dollars. 

On notice of what had happened, the plaintiff abandoned to 
the underwriters, which was refused. 

Dallas, for the defendants, pontende^, 1st. that the plaintiff 
could not ^andon, froin the terms stipulated in the order for 
effecti|(g the insurance; which stated^that the plaintiff was not 
U> abandon, if the vessel should be grerented from entering tht 
port of Cape Franj o^^ ffom blockade or other cause, but with 
liberty to proceed to sqme other port. Secondly. That on ge- 
neral principle^, the plaintiff could not abandon. If he could 
not enter at the Cape, he was at liberty to go to some other 
port. He did so. Kingston was. that other port. If a vessel is 
prevented from ej^^ring a port, because it is blockaded, it is 
not a cause of abandonment. He cited the following cases. 1 
Esp. Rep. 237. 2 Marsh 434. 2 Burr. 1198. 1212. 1 T, Rep* 
107. 3, Bos. & Pull. 388. 5Esp. Rep,50. Miller 305. 5 T, 
Rep» 388. 

On the other side, it was contended by Mr. Rawle, for the 
plaintiff, that the other port to which the liberty of going was 
insured, was mentioned ]|i the captain's instructions, viz : Port 
' au Prince, pr ,som^ othe^port in the bite of Leogan. That be- 
. tog prevented ,l^,Qlie of the perils insured against, from pi*o->. 
ceeding to any port in the island of St. Domingo, and compel- 
led to ffiXo Jamaica, was a total destruction of the voyage; and 
there£m, the plaintiff had a right to go for a total loss of cargo 
and freight^ giving credit for what th« $argo sold for. 

I ■ » 

.1 ^ 

• • 

38* . * • PENNSYLVANIA, ^ 

« . _ 

Simonds fw. Union Insurance Company. ' ' ' 

iVJSHIJSrGTOJ^rJ, chdiv^ed the jury. The voyage insured, 
is from New-York to Cape Francois ; and if prevented from 
^entering there, then to some other poit, mentioned in the or- 
'ders to the captain. If the jury should be of opinion, on the 
evidence, that the captain was prevented, by the British squad- 
ron, from entering any of the ports mentioned in the instruc- 
tions, and was compelled to end his voyage at Jamaica; then it 
was within one of the perils insured against, and the voyage 
was completely broken up* If so, the insured was at liberty to 
abandon, and claim lor a total loss. * 

As to the freight, the same principle applies. The voyage 
being defeated, the freight was los]t. This would certainly 
have been the case, had the vessel and cargo belonged to dif- 
ferent persons; and there is np difference, where the owner of 
the ^onc, is also owner of, the other. , 

, The jury found the vfhole sum for filaintiff'. 

• < 

• • • 



.» « 

. \ 



. % 


; > 



APRIL TERM, 1806. ^ 3W 

Moees tw. Delaware bisurance Companjr. 

^^ammmmi>^^'^'»mm*^^'^m»m^m^Hmw > i ■■■-«■ ■■■■■■■■ piMa^MMa* 


Insunoioe on goods on board the libeit)r» from Philaddphia to Chacl^ston^ 
lotfe or not lost— It was the duty of the aaauved, to communicate to the 
underwriten, a letter receired by him, containing particulars of a hurricane 
which had occurred at Charleston afler the vessel sailed $ although the 
fact of there having been seycte gales on the coast of Carolina, was known 
to the defendants. The knowledge of the plttntifF was particulaTy tM 
of the defendants was general. •• 

ACTION on a policy on goods, on board the Liberty, lost or 
not lost, at and from Philadelpluaf to Charleston in Sou(h 
Carolina. The Liberty sailed from Philadelphia, en the 28tb 
or 39th of August 1804, and the policy was signed on the 33^ 
of September 1804. The Teasd was found at sea, some time 
In September, turned bottom upwtttla. Great part of the cargo 
was thrown upon an island on the Carolina coast, and wns 
aold, under a sentence of the District CouK, and aalvage paid 

The defence was, that the plaintiff had concealed from tiK 
underwriters, a material fact, within his knowledge. 

The evidence was, that on the afternoon of the 31st Septeai< 
ber, the plaintiff met wkh Mr. Steel in the street, who askdd 
him if be had not shipped goods on board the Liberty, and 
whi&ther he was insured. Being answered in the negatiTe, 
Steti informed him^ that he had that day received a letter from 
Charleston, dated the 9th, 'giving an account of a dreadful 
■tofirm, which had happened there the day before, and that* he 
communicated the contents of the letter to the plaintiff, every 
word, so for as he recollected. The words of the letter are, 
«( yesterdays the most dreadful storm happened here, that has 
ever been ^lerieiiced; the damage amongst the shipping very 

^ C 

:f 86 PEN NS YL V AN I A , 

Moses P8i Delaware Insuraiice Company. 

great/' Mr. Steel, who also was directed to intore the Liberty, 
applied at the different offices on the 3 1st, and was informed, 
that there had been severe gales on the coast, and much da- 
mage heard of. Most of the presidents disliked the riak. The 
Pennsylvania Office spofce of ^king seven per cent; at the 
others,' five was asked, which was double the usual premium. 
The president of the Ddaware Office informed him, that be 
had heard of the loss of the Patient Sally, which sailed on the 4tb 
from Savannah, and which he should have to pay. The Sincerity 
sailed from Charleston on the 4th, and had arrived here, after 
experiencing great damage from the gale. The usual passage 
from here to Charleston, was proved to be ten to twelve diqrs^ 
but a vessel was not much out of time at eighteen days. It did 
not appear that the hurricane at Chaiiestot^, wtb known at any 
of the offices^ until between ten and deven o'clock' of the 23dt 
lAer the arrival of the mail. The president i^ one of the offices 
declared in evidence, that after this aeoount waa received, no 
msurance could have been effiscted at bis office, under fifty per 
eent., if at all. It was proved' by the same person, and by one 
ef the directors of the Philadelphia Insurance Office, that the 
accounts which came by this mail, did not state the storm in as 
strong language, as the letter before alluded to. After the ar^^ 
rival of the mail, th^Liberty was insured at the Philadelphis 
Offiee, at five per cent.^ though the account of the stormt as 
Mtted by this oomreyaoce, was known : but the office calculated, 
Uiat the Liberty had not been out lomg enough to teach thsit 
part of the i:oast, where the severity of* it was ftlt. Upon re- 
ference to the papers, from the 15th t4^the 21st of September, 
it appeared, that very heavy gales had happened en the coast, 
and vesseb and wrecks found in the kHitude of Charieston. 

The plaintiff, on receiving the communteatien from Mr. 
Steel, on the afternoon of the 31st, expressed himself -satisfied 
as to the Liberty, as she might not be dfected by the storm 
at Charlestoh. On the evening, however, of that day, he 
called at the Delaware Office, to ipsure this cargo, but tiie 




Moses t». Delawaie lommice Cooipany* 


jpreujent was not within. Earljr on the momiag of t^ 2%i^ 
lie called again, and effected the {K^y; butj the inatrament 
Aot being, filled up» he called^ two or three times for it, and 
finally recesired it between eight and nine o'dock in the mdm- 
ii^. On the same morning, he informed an acquaintance o( hiii 
o!f the dreadfiil storm which ha^ happened at Charleston^, 
and expressed his . satisfaction at hating got his insurance 

The defendant insisted, that the policy was annulled, in con* 
sequence of the concealmant of this letter. Park on Insur. 309* 
N. York.T. Beports, 2 vol. 57 f in point. 

The plaintUr contended, .thai the esisteace of the storm waa 
koown to the defendant ; and, thereforei need not be communis 
cfuted. 1 Mavsh. 354. 4 Burr. 1904, Park^ 185. 

PhUqis and Moses Lety, tor plaintiff. 

Rawle and Coody» far defepdant. 

., WABHINGTOM^ J^ chargfd the jury. It is admitted, thaf 

ithe plaintiff did net coaunnpioaBte to the oAcot the informatioii 

te had received of the aiana at Charleston, or that there wse 

a letter in t^wo respeeting it ; hut, U is cootendodf by the plain- 

«tiff, that this was unoecessary, sinc;e it was saAcisotly knowii 

t» the defendants, tor r«ider tlw eiQmmanicatiea uaneoessary^ 

.Tbe i9ile is, that the insured must Enclose every feet, material 

to the risk, within hia own knowladfSy which the insurer does 

BfOt know» or is not bomd to know. They were not bound to 

.kjww of the pattiiiplar sums mentioned in this letisr; andf 

there is no eridenee whatU blinds home to them» in any respect> 

a knowledge of iti Tim only question, then, is^ whether the 

Gommui^ication of the oe^tentu of that letter» was material to 

jtha risk, taken in coMsnion with the knowledge, which the de^ 

JendsBls had obtained through other chsanels. 

The defendanto knew generally, that tliere bad been heavy 
gales on iOm^ ooast, in the letitade of SMth CaroUna ; that dar 


MoGes flv. Debvare Insmnce Ccinpanr. 

nage had been the consequence ; that a Tessel, which had left 
Savannah on the fourth, was lost ; that another bad experienced 
its violence, was damaged, but had arriTed. But, the plaintif 
knew of a particular storm, more Tiolcnt than had ever tnen 
experienced, which had done great injurv to the shipping at 
ChariesCon, the port to which the Liberty was destined. She 
had been out ten or eleven days previous to the storm, and the 
usual voyage is from ten to twelve days, but not much out «f 
time if extended to ^ghteen. She might, or might not, be 
mthjn the fury of this particular storm. Was there any mate- 
rial difference, between the general inibrniatiott, which the de* 
fendanu possessed, and that which the plaintiff possessed, as it 
respected the firte of die UbiBrty? If there was, the litter 
ehould have been oommnnicated. Wmild you, after sedng 
this letter, and being yet ignorant ef the fate of the vessel, have 
deemed the risk increased, ftvmjrhat it woiM have been esti- 
mated, with the general infivmation poeseased by the defiead* 
«iU? What was the pInintilPa e|dttiDii on the sufajecl ? At 
the time he recdved the account from Steel, he was Ma owe 
insurer. Though beseemed to thUr lightly of tiieinfaniiliMi 
l^ven in the letter, he yet applied to injure the same evening; 
repeated it the next morning ; and, aftei^ evident^marks of im* 
patience, got 'it concluded before the arrival of die post« if 
you think, that this condnet wis Induced by the contents of that 
letter, then it is plain, that he at least thought the iofennatittn 
^ery material ; and, on this point, ftuvdihea airong evidence 
egidnst himself. Whatwasthecenduttoftheiaaiintticeolftoss? 
Under the impression of the general information 4^ galea on the 
coast, double premiums wera tlMMigit suScient. After the 
tiewa of the Charleston storm had r each ed one of die <dlkeS| 
they still insured at five per cent< ; h«t they dM net know, thfX 
it was as severe as the letter to Steel bed atated it, and thqr 
cehm le te d , that the Liberty had mot reached the place where it 
happened. After it was known, it appears, that, et another 



Moses t». Dejawaxe Insunnce Company. 

1' * 

pffiyce» the xisk would not liave been taken at fifty per cent., if 
at all. Now» if the information of this particular storm was 
materiali the defendants ought to have l^nown it, so as to have 
had an oi^cMrtunity of deciding^ whether to take the risk, and 
at what premium; 

The filamtifiT 9i^cred a nontuU. 

• \ 


LeMee of Peimsttf. GMff el iJ. 

LssftU or John aho Riora&d Pbhw v«. Qmo99f See. 


Tlie piapnctnietof PemM^hanii^ by ma/inaBDg i^gar «gaiW ib 1733^ te 
adjiul the daims of ae^tlen^ on tfie west aide of the SnfqnfhwwMih, witlL- 
in the boundaiiei of a bod/of hndi^ which was tilerwards fesnrreTed a» 
the manor of Springettsboryy and to sHow to those penona con u Bon 
tenna for tfie same; ^ not, thereby, deprive themsdres of the legal right 
to appropriM aB tfie residne of tfMoe hods^ as part of flie pimjueUtty 
lenthi^ tfid to daim the said xcaftdue as pflt of 

This case ww, i& ' every respect, ^Kke that of Feaoa and 
KUbc) (a) and the argninent al the bar, was nearly the sane; 
except that this point was sterted^ by the coansel fbrthe da* 
Jendant, (Mr. James Ross «f PitUbuighi aftd Mr. Uopkins, 
who were employed by th» State of PesMiylTsntai) and ycry 
much pressed ; that is, that after settlements were made on the 
western side of the Susqnehannith, on the common terms, the 
proprietary had no rightito lay off his tenths there, m as to 
enclose a single settler, althongh the reaidne ahould be dear of 
settlers, and even though no more abould be demanded from 
such settler, thsn what was paid* by others, purchasing upon 
the co mn wn terms. The raaaon assigned wa% that erery per- 
son, settling there upon common terms, was not only entitled 
to the privilege of paying no mora than tiie cemmon price, but 
to retain the advantages he had alao ezpeoted from a cloae po- 
pulatkm) and the certafai consequence of increase of Tafaie te 
his land, wbich mi^ be prevented, by being endoaed witfun 
the boundaries of a manor. That the eonnnlsaion from Tfaoaus 
Penn to Blunston* in 1733, in wJdeh he speaks of ositain per- 
sons, who had aettled west of the Susquehannahi under pro- 
.mises from the govemoi^ and <»f applioatlons of othect to settlei 


APRIL TERM, 1806. 

39 V 

Jjemte of Tenns M. GrofT et aL 

and appointing him to adjust any dUTerences among the set- 
tlers, and to grant them licenses for their lands, for wfaioh war- 
rants ahottld istue on the common, terms ; amounted to a con- 
tract, on the part of the proprietary, to grant out all the lands, • 
vest of the Sosquehannah, on the common terms ; and, cvmse- 
quently, that lie h&d no right afterwards to enclose those set- 
tlers within a manor, and compel tliem to take out wanwnts 16 
agree; which left the settlers, as to the price of their lands, 
entirely at the mercy of the fnoprietary. 

The Court read to $be jury the charge, in the case of Penm 
and Kline, and then noiicad this new argument, as foUowst It 
aeems to he cemtepded, on general p^iclplea, that, after settle- 
ments were made west of the Susquehannah, the proprietary 
could not jay off his tenths on that side of the rirer. Whether 
the settlers would he henefted, 0t injured, hy beihg thrown 
within Uie limits of a manor, m^^ht he a^sestkmahle thing; 
at any rate^ the Coon are of o phJ b u» it Is too entirely hypo- * 
thetical to form any solid reason, why the principle contended 
for, should have existed. The doctrine Is novel, and, we think^ 
teryiftxtraTagant ; hecause, it goes to cut the proprietary out 
of his acknowledged light to onv-tenth of the lands on the west . 
of Susquehannah, as well by the prior settlement of one soli- 
twy imfividual in thatxountry , as tf tkettsands iuid settled there. 
But, what law is it, that sanctions'this doctrino ? His right to 
the whole of the soil, by his charter. Is no otherwfoe disainished 
hy his concesaioiis, than as to nine«tenths ; as to which, it is 
dear of all restraints, but such as he might please afterwavd^ 
to impose. But, k is said, that his commissien to Bluntton 
amounted to a contract, not only with those who had, but with 
those who msght theseaflter setUe on those lands, that they 
should hold them on the common terms ; therefore he could not 
i^spftoprlate those lilnds asplift of his temhs : whether this is the - 
proper con8truct]o% of that commissioiH we avoid deciding 
now, lest we should prejudge the case of these defendants, 
shottld^il;. be brought before os on the other side of the Court. 




Lenee of Penu Ǥ. GrofT et tL 

But, if the coiutmcti«i be as contended* fer^ still, tlie conse* 
qtHBiice does not foUew. For, let it be coQoeded,4hmt the pR»« 
prietarj bound himself by that comaiMtoo to let the lands ob 
the west side of'the river, to be taken up on the cobubob tenns« 
this would not preT^it him from appropriating a tenth as pri« 
vate property. Those, to whom he issued wanradts, might aay^ 
that he could not exact mote than the common teroos; but, yet, 
he might acaci those terms. Theiegal fight to the soil would be 
one thing ; the terms on which otkers eould acquire it, was quiie' 
another. The argument which we have heard, might have 
done very well in the Legialatufe, whkh passed the -dKresting 
and cQufirming law, and the re as o ns , if sound, might properly 
have been urged to induce that body, either not to coefirai the 
title of the proprietarie* to their tenths, or to quali^the law^ 
so as to compel the propiieiaries to demand the purthaae mo* 
ney, only at the rale on which the general lands had been sold. 

' They might do in the State Court, ichere, I understand, the 
defendant, though a verdict wete found against him, might te* 
,deem the land, by paying the purchase mii^iey to such amount, 
as the jury might find. They might do this on the equity side of 
this Court, if the defendant were applying to be secured in hie 
possession, on paying the purchase money. But, the questiot 

,for you to decide, is not what sum the deis^dant shall pay-for 
the land; but, who has the legal title to it? Now, if this lend was 
part of a reputed^oianor, which was duly surveyed and returned, 
before the fourth of July, 1776, then the. legal title is in the 
plaintiff; and, it is admitted, that the defondant has only a sur* 
vey, without a patent, and without having paid the considera* 
tion. If you find for the plaintiff, then the defendant may 
compel the plaintiff, on the equitysideof this Court, to receive 
what is justly due, that is, JS 1 5 10*. .a hnndred, if he is entitled 
to hold on the common terms ; or such other sum ns may he 
thought the vdue of the land, if he be not y> entitled* But you 
have nothing to do with this now. 


« I 

» ■< 

4fRIL TSilfli 18^ 

Xessee of Pemit w. Grol^ al. 






»U||iA the wbqk> the% if pm mm of ipininti» «pM t^ efi* 
dence, thttt the land in dufulo, to ppct of a ti«ict c«U«d.4i0d 
luiown by the naoio nf^i^ propiiBUiy't ifflAf or i»ODor» ami 
was actuaUy Buifmytd m the year 11^^84 .^MPk ft ia Um opinipii 
of the Couitf that thf iiMnor of Spiringi^^vryt waa doly aur* 
yeyed ; aad, it is admitted, it waa retumad iwto tho l«Dd oiBce 
bofom the fourth of July, 1770 : obd, tterefbro) the plaintiff is 
entitled to r^coveri 

Verdict far plaintiff. 


t ' » 



'. • 




Jackson f». Baker. 

' J&CK.80N x^«. Baker. 

Where a coirtBiLwlmi merchant takes a bond for a siaople oonkract <kbt fiuc 
to him for goods 8(Hd on cofaaDimkm, and inclndes in the same instrument 
a debt due to himself* he makea bkftaelf aoswcrable to his principal ftr 
the amount of the gpooda; as helias depnred him of the mean 

his claha againat his debtor* bjteatinguialiq^ ^ ^^^ ^u^ by 4 



\rHE plaiotifT consigned a number of boxes of hats^ to the de- 
fendant, to sell. The only question in dispute was, as to one 
box, which the defendant sold on credit for 211 dollars; the 
amount of which, the defendant included in a bond, taken to 
himself, from the purchaser, for a much larger sum, part of 
which was due to the defendant personally. 
^ Hallowell, for the defendant, insisted, that the piaintifT ought 
not to recover the above sum of 211 dollars, as the defendant 
liad not yet received it, from the person who purchased that 
box of hats ; and that his taking a bond for the amount, made 
no dmerence. 3 Dallas. Price v«. Ralson. 

The Court stopped Meredith, who was for the plaintiff; and 

• •• 

informed the jury, that the defendant ought either to have paid 
this money to the plaintiff, or enabled him to look to the pur* 
•chaser. But that he had not done the former, and had disabled 
himself from doing the latter. That the plaintiff could not 
have sued the purchaser, because the simple contract debt was 
extinguished by the bond; and the defendant,.having mixed the 
debt due to himself and to the plaintiff, in^ one bond, taken in 
liis own name, that the plaintiff had no remedy in the bond; 
and it does not appear, that any offer was made to assign the 
bond. If the plaintiff cannot recover from the defendant nowi 


APRIL TERM^ 1800. 



Jackion en. Baker. 

■* Wi w' f " 

when cftn he recover ? Sue lum ^Ntefi i|0 |> leM e 8» the defendant 
may keep him at arm's lengthy by sayhii;) << I have not yet col^ 
lected the moofey." «Whereaa, the debt havn^g been original^ 
^ue to the plaintifT, he might have sm^ for it at any time^ in 
his own name, if he had not been prevented by the oondvct of 
the defendant; who, if he is the cause why the plaintiff cannot 
sue the real debtor, makes himself the debtor. 

The jury found dccordingly for the filaintiff. 

\ / 

4 S 

- • • *• • 


M * 


•' * 

. • 


HoH & Ca «•. Dmty. 

^ HohT & Co. -!;«. JoKV Dorset. 

A tnd B ihipped a carg^ of goods for C, but conngned )liem to D, the- 
partner of E. Before the arrival of the goods, B dfed, C became bank- 
rupt, and tile defendlmt, wider* po%er of aMtttie^ frotti E» tsifc pooes* 
sum oftben^ lold then^ and i>eiwitted paitof ftepwoeadat^Bi attke 
aMne time infanMqg A andB of bii having tailmi p owe M io a of Ifce goeda; 
and when he leoiitled in pait then' proceeds to £» he adviaed A «idB of 
audi renuttancesy who approved of the whole of his prooeedtnga. Held, 
that the defendant did not become the agent of the shippen^ but iras the 
agisntof E;andthatnqrvemlttaBce8niade(oB» of which advice was not 
givoB hy the defendant to A and 1^ that thc^ wete Hor tiie proceeds of 
4he goods w«re nota payttient to A and B. 

The phintifs Uring w «&lMMi«r ptvt •f England, in 1799, 
they shipped a cargo of goods, kttendsd far a merchant in Bal- 
timora; tnit to seoi^re themselFas, in case of nkj accident hap- 
pening to the person so intendedi they sent them to order; and 
a Mr. Willis, of thai town, the partner of M'Call Medfbrd of 
Londen, was authorised to recdve them. At the same time^ 
M edferd, the fiiend of the ^totnii£&, but who vas not anthotised 
thereto* by the plaintiA^ sent out a power of attorney, to the 
dafcnffsnt, to act in this business, if neoessary. Beibre the ar- 
rival of the goods, Willis, the agent of the plaintiffb, die4» and 
Ae fierson on whose account the gooda were sent, having be- 
eorne bankrupt, the defendant took peaaesaion of the goods, 
and lm>ught them to Philaddpbia, where • part of them were 
ifispoaed oL He informed the plaintaib-what he had done; and 
tfeceived their ^probataon and thankai vacognising the act of 
Madfaidf in procuring hia interference upon the event, which 
bad taken plaooy of the death of Willis, their agent. The de- 
.ibndant made remittances, through ftfedford, to the plaiotiAi 
which the pUbatiA received. The giaoda not mU, were, dcfi- 

s • • a • 

,♦ i K ^ 

• • 


APRit TERM, ia05« ' 

•. »W 



UokliC«. m* Dftnej. 


Tered over to Mr. LyK Ifce agent^f tlio plii»tiff^ in' this covn- 
» try. The defendant corfesponded with the plaintiAyTetpeGlr 
ing these good^ and pvanised to reoit the prooeecbi to then ; 
' and when he did remtti trough Medfbrdi he infonteed Med- 
fcrd, as. well as the plaintiffsy on what aecOuot it WM madfv 
Tlie d^endam w«i the agent of hiedfbrd) te othfr traiisactiot»| 
sftd Tcmitled tbeni large suns of mqney, gei^rallf without 
■mkhig aft anpeopiiation of them ; exeept ia the cases above 
neotieiied, where apecifio anna wwe remitted far the plaintiffs. 
A balance still remuned dee to tihe plaintiflk, which had not 
been remitted to the plaiat2la,or to Medford^on their accoentf 
bf aitf speoific sf^propriatiOB. The plaintiffi^ in a letter to the 
defeadam^ raqoeeted hjjpm to remix eitj^ to them^ or to Med- 
fbrdy fiir theat. » It appi^rsi hyap isward made in a diyuie hot 
tweea the deSmdaBl and IMkdfeid, that e balance waa dee Imm 
the teiseiv to the latter, of « teis^ *iu>^ <^uu) is now claimed 
by the i^atadffh wM<di the drfeSMliwt was ad}edgfid to pay, pro* 
' fided he reeeived aluU imiemaiicstifm against the claim.of the 
plaiiittA, for a p»rt of thai swe. TherefiBceei^wiereofo^nion, 
ttet the delesidaitf wea liaMa to Medfad, and he to the Holta. 
Medford became e haofapupt two or three ytara ago. 

It wi# argoed kf the ffHtautUk* coons^ tbst af the defendant 
MpiHiled the a«as msm olaimed to Medford^ ualem be ordered 
the mtaae to he paid^ver to the plabiliffsi the plaiatifis wer^ 
not beimd by it. That it appearing^ tM the defendant waa a 
debmr to Medfend»ualeas««nh an a p pHsati on waa made^ Mad- 
' fend had a ligh^ whtoh k a|Q»eam he exercised» to apply tto ' 
ea«e to hie own debt. Thpt tl^e defendant was a mere vohmi* 
teer in thiohnsmesa, hwringbeen appomied by Madfet^, as tht 
substitute for WilHa% iM of OMTsa,^ h#d no right to rem^ 
to Medford, so eaSi bilri'the phdatiflhfimlier than he was a«<» 
thoTiaed by the phdntift to do ; mA consequently, that whoa 
he remised to MedfonI, it was his duty to giixe notice both la 
* Medford and to the p lamtUhi ^t the remittaaee was for them* 
Bjijt as theisiimisni man the nohoowledgad ddhior to Medford, 

/» . • 


V . 

r .. 

Jiurtin $m, PhceoiqK toa^uce Oompaoy. 

^ • 



HfjUtnir 'vt* Pbobhxx Iirau&uvcE Coxpavt* 

A<Aion on Wo policieB<i# insuniice ; one a Ttjued poScj on te voiei the 
other m open policy en the caigo { on a voyaj^ fiotfi'Kew-Toik to &• 
bniltaf. — ^The veflael was tauAoKd, and earfied into AlMfaia^ and 6ker^ 
although the eaif^ m^s not condesiMdy as it was not ptnw i ltod to te 

' vessel to sail with it, unless securi^ was given Ihait it wmikl not b« c«r> 
tied to aBAdi port in tbe Ueditentnauii it wai told 1^ 01ft wp^ 
and tfie vessel, which had not hcmilcitainfd ^th a view to b« ooih 
dbMMlMB, sailed ijr New-Ttfky Willi a eaigo ftB fiwight, and w«B lort. 

It is not neceanry to tedftoto 0ie vnderwxiten on tibe caigo^ tkepaitiou- 
lar hnguage of the bifls ofliiding; and if they i|re genenl, so as to com- 
prehend the port to which faMnanee is made, it is sdRcicnit 

The seinire and cairying into Algesisras^ and the prolulMtion to osny the 
caigo away vMout secunty, waa a complete deatniction of tibe voyage* 
and authorised an ab aiwhrnin a wl of the caigtt> 

The sale of Ihe caigo by tiie flq>in^ciago^if tienctodibr tfaeittlerBritsof al 
rtmamfidi waa jwojart wid.he^ Imdm Tjghf tti^rt j H to < wy« <' rt Mrputid 

^Hto.*toi»I.||B9. • 

The imumtd mmt» wilbip a wiaganabk Urn «ftftr no^ee of the 1o8B» make 
his election, andgiye ttotiQeof hia intentiim to abandon^ but he may talui 
a reasonable time to dedde upon the subject. 

Vhe refoaal to giveadeedof ocawmof tfaecihfp^ Ohiw IhadeABteMs 
would accept ttte a h a idmwwaBt <rf the v easa ^ jnayped i i »aiin<iifli peicy, 
did not vacate the abandonmeat of Uto OMgg*. A deedigf eesMSM is not 
necawy to transfcrtothe inanacfstik^ri^tothepropegly, the same 
being completely tfansiened by t)ie ahyndnnmenL 

Hk vessel not haviqg been Aained ^itfa a view to cowdeinnationt and the 
inhibilion of exportatioB of the caigo^ Imt upon seoori^ not alFecting hefi 
' Ihe assured had no light to noov« ihr a totel loaa. 

The ainredLiwt hat«ii% abandoMdtittvaMelctlhn than ha abandoned^ 

' is gon^ and cannot be regained. 

tfk CMC of abandqpmientt the underwtiter ia entitled to all the proceeds of 
the thing abaadoned, and to aU the piefita anan^fton the isvotiDeill 


• - It . • 


.. » • 


AmCL TERM, l«M. . m 

HiMIb mk Phamim liwiruice Cmapuif. 

Me expenses ineuned by the detentibn of the veatel at Algesinsy are attb^ 
Jecis of genera) avenipe \ but hef Mptin tr^ entirelj ehargeable to the 
ip^fliilt the M3|^lMmn(f been prcTioiul)rlaBde4. At mpaxn made n tic n 


L RtS wu til tetloQ en two polieittft ; Me cm the Monottfcktk 
Farmer, snd the etKer on her cargO) fron New-Yoii^ to CKbral^ 
tar ; the (bnner a valuedy and the Imter an open policy. TM 
ressel sailed on the voyage insuredi and was seised by two^pa* 
nish priTateerS) in the Gutof Gibraltar, and' garrkd laito Algen* 
rfts, where attempts were made to cevMeoin her cargO) iNit w4tb« 
out sutieess; the cargo consisting of art ietes ii» general coAtrkban^ 
of war, bnt wtHiln the e^i^tion^ of fM treaty between Spain 
and the United States. The goremment consented^ that the 
eaptain shonld depart, upon hk giving siecurity, not to carvf 
liie cargo to any BrhMi' Feit In the Medkenranean. ' Tho 
aupm-cargo, under t^se cireuHistaiteefl, eansSdM^n^ ft moat for 
•i^ antvamagse-oir lA contemedy to dispose of it at Atgesiras, 
procured tbtatobedeile) undb^ an order ftbm a judge; and th» 
Mea amounted to about half the sum insured on It. Tbe de* 
fsation produced by thh step, kept the vessel at the port of 
Algenras, from about the 13th of May, till the 17th of Juiyi^ 
during which time, die supra-cargo, by meana of a credit, whiei^ 
fte plaintiff 'htfd given to him, on certain merchants llieref 
pm^chased a brig and cargo, and^ent her to tiffc 'United 9tate». 
About the ITth July^ he went with the Monongahela Faraiefi' 
to Malaga, where he took In k cargo of Wines, on freigkt to 
New*York; but rite was lost, returning^ td thd United tiatMi 
em, or befbre the 3Ml JTuff, ia thd-tfitae* year, (1805,) tbi^ 
pMltttifF reeeivednotice'wf tie captut^ fin tw% letteie from tHi 
itEpra-cargo,' M tHr 9lflf Mttf and Ilth'luHe; ^iHlicb sttttedf 
that he had been cleared, on condition of not going to i^f Wlt^ 
fSHk^'ffOrtjbi the Mediterranean; advisiiig Mm t<^ abandon tha^ 
oa^, d^that the vessel woijdd return udlli 1 tlfrgo of Malaga 
wtee, en finrigbt, and advisinf^ bim to ifiluf«» bfcr. On the SM( 


Hintiii 99* PhfsiuxlQiimiiee^Goiiipaay. 

.July, the plaintiff wrote to Mackfy his agenti in Philftdelphi^ 
to abandon the vessel and cargo. MackjTi after perusing t&e 
letters from the Sttpra-cjetfgOy advised him not to abandon tke 
vessel, as ho would tfaepoky Umo the freight abe would oan 
horn Malaga. The plaintiff, in answer to this letter, on the 3d 
Augttst, desirea him lo abandon the cargo ; observing, Ibat if 
he should do so, as to the vessel, he shoidd lose tho fipdgliU 
On the 5th, the agent went to the ofiice, and gave in a written 
abandonment of the cargo; and showed the two letters, from 
the supra-cargo to the plaintiff. The president inquired if be 
did not mean to abandon the veitsd; to which he answered, that 
hb ha4 no orders to do so. ^The sbandonment was accepted ia 
writing, and the president agrted to paf the loss; but required 
that the pluntiff should send on a mgolar ce^Hon^ proo£i of pro- 
perty, and a fuU disdosure of all citcumstancciii respecting the 
loss, and respecting the vessel and cargo on the voyago;. This 
answer was immediately communicated to the plaintiff, .whos 
having now determined to abandon the vessel also, wtofee om 
the dth to his agent, to do so, and agreeing to. send on a ceasiQia 
of the jcargo^as demanded by the company; provided |faef would. 
agree to accept the abandonment of the vessel alsa The com«» 
pany refused the abandonment of the vessel ; and, considering 
the refusal of the plaintiff to make a cession, as a waivm* of his 
abandonment of the cargo, they declared themselves exonerated 
from their former acceptance <of it, and refused to ytcf the loss 
99 the vessel or the cargo. . 

' The objections to the recovery were, Ist^ th^ the msurance 
WIS on a voyage to Gibraltar, and that the biUs^pf lading were 
40 tho Mediterranean generally; which fircumsta^coi probahljry 
fiodttced the seiaure and detention; and being therefore mate- 
tial to the risk, it ought to have been' diselosod, that she was to 
take a general bill of lading.^ 

3d. That the loss of the cargo was not total, as the supm-« 
cargo was at liberty to go to any other port in the Mediterranean^ 
^mept a British fort» and Che loss being thus partial; the nit; 

AwmmrtxM^im. ^ 

^m^^m^ttm^m^tm^i m ' M iimm liw if pi n a m . . i. »ii..mi ■ i MPM<»— i— — i»^ 

mL Tb«t tlie y«sm1 couM not be ihMirtfiiitrtj at slie wm «l 
HMrtr at tU ^hmMp^ pursue Imt r^ptgtt Md M m &ct tak< 
i^ % IWKo, 00 jMgK for tbe' U&iM aiatee. 

Mh. Thit^if tke p^potiff bad • rifjkt to ftterfoQ, he hM 
ncut.4pM lo ittra fi*|»er maimer, or in proper timo.* sAn to tho 
cargo^ the a^ital t0 mmkt the (;o i» i on> was a uruver of tM 
abandeontent, made ttd accoptei on tb^ 5th ; indy h waa the 
ueaal practice in Philadelphiai ^to make formal cessiem in 
mirip^ of property ebaoiMed. Aa to the ireeed, th^ pkdntflr 
elnoleA nol to abeodioA j aoAi^ ^*hen he changed ins mindi it war 
thon te» lele s nor. was ktdoBib hi due taan^ 

5th* That the brig and cerga^pvrchaeed at Algesirtti were 
pnrdmecd with the ptecredr of t^ caryi of the Monongaheia 
Fanner; and, if ^tbe l^ainliff had a right to oWm ^mt a totti 
l|Ha» the defcndHnie'warojmriiM to aie#t fer 4he proceeds of 

. .ttt|« l!hatt at any vato) theprocoeda of that cargo, ought to 
^•ooiiaidered, so frr aa it goes, to hare been inreated in that 
pnvcbaae, teitho.anaeunt.of which.. mveainrent, Uie defcodania 
wctte entidod to credit; nota^thatanding it appeara, by the ac* 
coisnt rendered, that a great part of it waa hud out in repairs of 
the Monongahjla Fanner at Algeaiaaa^ and becaoie, it ia impeo* 
poriy m^ifbm cbaisfe againat the ref^e* Caaea cited, 1 Equm 
Rep. %S7. WaUaeofa ^Rep« as. Craig w, Maigatroyd, S»» 
preme Const, PenoiTkania. 9 N. Y. T. Rep. d90. Z Rat^ 

WMSSMJf0^^fiii^e\mg^th6J\iTy. The firat objection^ 
if w^ fonnded, goea^to. thodeatrnction of both policies ; boli 
it appears, Aai, aa it iattfiaol to carry general bills of lading,tlf 
.yoaabaold boaatiafted of thia, then the asanred was notboonl 
to mealaen'the earcnmalBnoe* It'wquld rather aeem, that tin 
mk wai;le9pcand9 than inareastdi byl&iring a gooeralbftiC 



»■ >■■■ 



Hurtiii fik ifMeiiix Imimnoe Gompaay. 


Miag SHlf tf it m ig i M ii n i ir jMgrf riw rtii mdfct yte «ra «lw 
]Ht>per judges, whether the not discloaing the clrci|MM9tanc«^ 
Irta niaMriftl to.ilie iii|u Tbe iitfutaat q^miien iei whe^kar 
,tte|>lBiatiff Kill .nwoi^i^ at fcr a tiouA Vim^mp^ vcead Mril 
cargo, or either; aadi j» oonsiilering etfcbaciMiB) itivill-te pvor 
^te tac^utei iiit, ^viMber tiie pluntf diai-a lighl lo atei- 
4aii} 2mA9,9mmMy$ vHther the sMidBMiiiit4«n»«iaiMA at 
^per maaoer, and was cJi ao tMi . ^ * 

. Aa lo tiie eargo. 

lai. Had tlM» iplaiaitf a f%k^to«l|sMtoti f Tto «aqg#^ma 
toitiflMl fcr GI to ri ta ri biK wm rtiyTaM ani^raiprM faitOLAIsai* 
fdnui fram wbaoee it osMlA^MylMi otaRSYod tiiitlwiil Fiai<i|[ftf Im 
ing gireo, not to cany Hjtm/i Iriiirii p^vu TMa 
emipleia desti^otiola mi* tto^ni^il ^ra^ «•! MfikLk 
Ikal; tbaMpfftiWrjlp, wfao^ «fDA.*tlila-^«Ck Mtol banre 
test jiidgo wiMi it wast moat pnldAas^to 4oy MootoUtaHdd si 
Inr tlia teneit af <^e psHlss tts tHWtuA , io^iUJl 
tbe sanction of the gOTenusant* . It doaa flat 
o#ttl4 havodoM faaltaffy kftd bay'iie el8ewbK«)^i«l^ eTei|if4w 
Moid, be was m)% at Iterty to leave CIm 'pon^ nvlttoot gMav 
aoourHf itotia carffibe earga ta a BiUrii fnttw fiaw«atlie 
ayatr ai dms las^red ; ind^ i sriM^l, «1M tts anch, ba oo«id ii»t» 
Isltbasit naoeswiy, eoovvrt a loas, <>at fwtial-faiilia aiNare^ bsia 
a^stsllosa. Avi, beretba9iif«(e ¥nBbi«|peii«^$ iftoaaMaMtt 
balditber f>rosao«te4 ; aari, If be aanai^lkr sba b«M^ Int «I1 catt- 
aBTDadi of wbiab yoiMLca ibe judges^ tbap <li»'loaa WcalM total, 
'•<ri:itha plai&ttff had a riglit it siiUiim, > * * 

9d. It b true, that, as soon aa the assured feoatrea Mttan of 
tbe loss, ha must make his election to abandon or aot ; and. In 
aba faraser cs«e^ be miistftwiibib Mvasmftte li^ 
Ms inteption. What is a ra^aaniMa^t i a icfam st aNf s. dapasod 
lipoB earcamstancea, to be judged isf bf « jusf. .tf bewiilam 
.•siaafliablB time ia ebtsi^ advicc(r wiiMiMr lie My i^VAy 
•iMnden or iwt, ihedeiay, bdhgis sHiwapsUs Jriraaid AaMT 
/h^*- It miibl wottmteriKftoilit i i wa^liattiiibrf t l ii yt ss a w i^ 



to4 i» 
t4b piUpMtelM^ Hie miliiiiimiiH ^wmm nOf hi ium 

is Ml Mpr 





4ot immmthPjOfiJL' 

Hmtiii «9. Phieidx Insutuice Coraptajr. 

. CTgo uMi iuni, w> H fc> t gMfcy^ nwwftj » — I to cmy. ii fift » 
Brftish jMlkitiie Mtidkowmtto, ' If tke d^sm friil linirf 
Ilk cargor uMnediatel)^ tlitre ^w«b notMny to pf«v:«it the 
pgnvre of tM^T0Miif vliich iMw in perfiKt sailiftyy fi«e^fi<«i 
juiy by imf of'tte peilli insttf 

internqnioii. It k mU, that the voyag^ima Mko up. Aa 
the cargo, it was; a&d therefiNTe the mideniaiiwa» oft tlwi 
on the freight, are anaweraMe s hut thas«la oothiBeto 
writera oo the t«B«el^ Sttppoae she had htai wat irilft 
\ff pinctes, and pltmderad oCall her cargo^ asd then 
weeld the mri et imile ra oiiithe ^eied hei anaiwahiay 
ike objtci qf the voyefv wa* jfOk an end lol C^aKaialf 
But it is coiitea*ed,4lMr *»■ vas dntatwed i» ft#» 
Algealraa, as ia pr cr W w^ if 4he ' dq K Ud li o a w ef thi 
and iMitB. The u ei l a aii e lai ai ii is, thai the 
whieh hiiim a d tBe ptohMiffeMiehiss, l ufciiJ hiaa^Jap»thaa 
the teasel laas cMaciead wa el d proceed tec lialage^ tohrisis 
home a eavgo of iriii»9 aid^he supra-^argoy ae pe wre haa idao 
of her sMiBtf^deaifed the phhuJfT to abandon ci^ 
Knowi^ th^stoO) tlMk the dovBTiwaaowi^ as t(ie 
that to hneir rf the' eepahpaj it'SPiMi aet^oiipeceat to the pfgia* 
tiirtoahiDdafK. Bk, If ihaaa IsiasM had hjirmed the pliiatiit 
Untthe v«aail wae atW drtahiadieeiaa aosuaUiome an ahipi» 
donaient,4he phamiff la aai entitled ta wif*^flr> aa far a total 
leaa on her; haanaaa, %tlf^ fSbb ahaMdh^nMaMaas nadt made in 
proper Ane, Md la a proper aaataar/ 

Aa aeon aathe insar sd i ieai i ii nr ^jtlaasy ho a^wdd w a km hia 
Jettianj and cuasinaafciliB so the iwlawiiiaia hhi datafiiahsn' 
4bntoahanden>tfhachoaaaailw InHf >o aaiir^his alectiip 
^ not to abandon, and partiadhiftft if ha^eanMnwdeaiatWa do ia r * 

aimatioa to the aaderwritcrai hi 
mind, and aay, he #3i abandon; aaid 

en the anderwfMra. _And here ia tha dMMnaa helipnab the 
trasael and the easys^ln thepaaasnTinlinsa In-ahetattarc^ 

Vmade hfe eJactJan niiiaan#rt h 

o^kisi^pM^ te iiTffiirifllWiX ij||tirtM uiiy tlle<tf^ 
; fliiigaiiig tte v^y reaao»» irUrii ^bmM fwmmtthiwn from 

rjeimnpaKlik «liid»4MMn<J)r» t| ii> t> > n fcQi<<<liy gi^b^K 
UHikfireifht, wfaidi t>Ki \wmm htm #iK Wiptmr 
>MMh till jMMtfif Tkkh>tfit»gwining tfci>tMd»> 
J>«ptjq ^hPv M iB»»* ^ l» itawm to the €lefcpdiHit% jwi, a>^4|h» M 
ihi!i til— tiiftaiiMiAHMMM% rf^tocKfgi> WM irrfffl1i>iL TJmhImih 
taikawr.^>iljhe Iwd baiawad Mwaglt^f ^ii|^t lit rtMwInn th» 

■JWiitifc fhnrifailii riMMif VMMiiiflft^lM TiHil, imffi tlun fnff 

Mk^pmL Thm M^pMBiiiVtM^ Iho fMltelrriter, id case of 
lgh»i^rVMMHiti at iiMilled to ikmfmcmoim^Mm ibmg ibindoii* 
M» ttsiif th«y teinTeated bf^k^nffMtt oC4te iawiiaifj te«liw 
•rticlea irhkli pfoduce a ^dfct l».tiHao«fi«ifils alio, is wMl 
f mpd i df '.IW i i >doao' not fit tm «lao. . It JO 'i kar i f Hwredy aod 
^wiatarat admi^od, tlMtt the h4r »^ Ih*" tiiy^ ffwehaaedby 
4|pe enpni-cargoot Algeairaa» waepaid fcav by Ulls drawn on the 

*fBdiitiff} and bf anmeir recelTod on leltora of credit r the de« 
fcndaato at fir^ suppoaad^ ^^ iwiatert^-tbat tbU bii|^i«id her 
eargo ihotild be aceounted fiv* Siil4£ would aoem^ thf^ they 
vere afterwaida wriafied upon this aufaject. 
^Mh. It i» nniwnii a^ , thai tha^ mm^M ^J^^^Jlm 4umK0 
vea 8^ ia j ia t oJ ao faaiae beenlnid the eipato and 
evpeniaa of nk^ nupali a* AJfeaiiaa, which coald not legaQf 
ho dMe; and thceefat%that aom, U leaat^ oiyat be cooaidered 
•I Inveated in the pnnahase of tiie brig and cargo, to.the pro- 

. coeds of which, the daiandants are entitled. Whether the car- 
go coald, or could not, be charged, with the repairs and ex- 
penaaa, it ia a anficieot anawer to tjbta claim, that they were m 
fiK:t -^ypfopriated ab tiie mahlog of these repatrt ; and therefore 
eianid not ako hero been inr^sted in the purchase. It is not 
enoi^ t^mnctieo tk» cl^, to say, that they might have been 

* . 

MM ;wmnmti.tjcmuk, 

rMBtjrtliif wMiftMjwNiMdf fef tlM%tiilti«f the iBMiiii,«# 
fivr dia oaflMMM4« 
It, hcm^HHs hmmmm a » ie<M> yy <pmti<fii|iwt 

tlMMtolMCii^ h ayyttety by tbe > ci O«> e » tkm tto 
IkuupbA 4iiripf tke dcMttkni at Ai guiiW y aaooMiA to 
t«««i foar and five taadrad Mkn$ aadtiiatiliDiia|niMi«ff tte 
TMHI f B<ai<d Ihi ealf of tke caargo. A*to tteiMiMr^ tlM 
mmy pi|imi> be a tuliject of felMivl 'ttfenfe; but a^ to 
fertter, tbif we certi|Wf Bet«lMUVM>btB afiiMt tlie cerffe^ 
tar i<M»,er aa'CCMflil weragei; affeeei faaaif l i ri i ii er AI§e4fa% 
it was te recme no bemil tma cIm ftitaae'nipeto^ the 
AeL They ttay be ober'gei te 4iie aj^lf-tjeyw^ 
■■c iiwaiy,^HMBi i»f ef the itAeflfteadofied ie «heiMilcy;'aaA 
ae the ilnlwideeti eie mdsf e iiMWi» ea both tHp Mli eafigo, it 
wtt ceme Ui tiie OHMi'tMiig; 

• Tbe eevasel agMriagv thetif the javy shoalitod fte a tot# 
lees on fibe ceigPf nadn^ievtuilfoss on the ahip, tile adjuatuei* 
w^vM be made by eoOMut^ 

Ingenoli, for prlfldntttF. " 

Rawle» and Hattowdl, for defendants. 

ir^n.^^^b^v f8. Ji M u i e aeg ^VmjMi^ tfSbrth JMwKen— -The C«ert de- 

« . / • » * 





al-fc Wi -Bi.^ 

^ Buseel w* Union Insurance Company. 

- n ' -• -- '— ■ - '*■»* 


Roftft||f^ »i. UhIOH IvftVAAIffB Co|CFAIlT. 

Actidn on a policy dfTmsurance, on the cat^ of a Ve98e1> in which the intfl- 

feA of the ai»iiw(3, vaa that of a surety for the payment oi* tiie vahie df 
^ Hie «iiie» in cue of ite eoodemnation by a Court of Appeals in Spain, th« 

cacg<& bamg been Mlveved to bim for his Indenuiity. 
Snbia is an insuii||le. inteiMy a^ tt»y be oorered by an insurance on the 

ca^o^ witboat the particalar circunptaaoM of the case having been coi» 

municated to the underwriters. 
A factor baa an insurable interest in goods^ 6n Which he has a hen for ad- 
' Tunces. 
file reslitutian of the property to* the origfand ownexs, and thus taking it oixt 

of Hie posKsaion of the surety, and depmiag Hoi of his means of indem- 

mtyf VIS a liMt by ene of the peribr a f ^s iwi i wbi^ the plaintiff bad in- 

BMIcd'i and be was at liberty to abyopte. 
^ After a record of the proceedings of a £oieign Court of Admirahy have bean 
« read in eyidence, Without objection^ it is too late to object to it in axgu* 


Jl- mS* was a policy effected by the plftintiflT^ for all persons in« 
ieYegted, on goods on board the Hibberts, at aiid from Havana 
«D New York, to the amount of ten thouaand didlara. The yes«- 
ael and cargo were taken by a Britisli ship of war ) and it ap« 
pearing, that the vessel and cargo belonged to British tabjectSi 
^at they had been captured and carfM into'ttiQ Haviai^ and 
Ikere proceeded against, she was ordered <o he d^vered up to 
4die original owners, on salvage. It appeared, by the record of * 
iMt proceedings befokv the Admiralty Court at Halifax^ where 
1t& sentence took place; that the vessel and cargo were deli-* 
^9tted up,' by order of the govemiyient) at the Havana^ to a Mr. 
Cruset of th«t place, on his entering into a stipulation^ secpretf' 
' liy a mortgage on reft! property, to the amount 33,000 dollars; 
lo be accountable fbr that suxri^ the valued amooat «f vessel and 
cargo, in case the vessel and cargo should, upon an kppeal to 
Ae Courts in Spain, be condemned as prise. This appeared^ 
by the* papers on board, and was confirmed by the depositions otf 

record. Th« v«m4 
n, of New York, bf 
JiU own name, witt 
1> answer for hi> wd- 
tf for hit indeBHiiCf 
fd entered into ; and 
the Teaael, and an- 
Mr. HOI, wrote to 
^pany, to get'tkn 

r, in which lie nwa- 
delivetr to hia),aa 
&t apocifr praciHlff 
3 had in the pT^tertf , 

^llara on thecarg«. 
jre, be ^arc notice Ik ' 
ttence, h6 abandraed. 

Sd to the defcndanto 
buK. «tfa. That tin 
Siwnen, Cruset's Htm 
prt to theB' far ram> 
efcre, thew was not k 
S was not proper evi> 
Jit bo ought to baw 

D the 1st ptunt, r^ot 
bg a lira OB goada, 

♦ • 


APKO. TERM, 180S. 41^ 

WiWffiWl fe" ' "'' " I * 

BiukI Hi. ITiiioii lofunmce Compaiqr* 

caver It uadtarfrptiicy •» tim <!»nr». lEhe onljr imtaiice% 
fte yM^hc^iw iiiHiirt nraat be iiie|Pped,iRre bottomrf 

wwpprideBtii An espeetflttni of piofit mef be iniored. 
»«r PartiDwm, l M«v^, 1 1 U Sd. Tbat tbr letter from 
eHrttey hk' eegftgemept on account of tkfe iretsel end 
«argO) and tbe stiptilttioii which he had entered into^ libich was 
ahown to the d^endanta ; was a aufficient dtadoaui^ of the iiw 
tenet he Meant to insure. 4th. That the k>ss of the posaea* 
^liK»k bf captiure, was a loas within the policy. Aa to the proof 
«f inteiest, it was centendedt th*t tlie record haTUig been reed 
aMiUiJUt oppeeition, it wa« fe he ceMUered as endeBC#. 

WABHIJ^ TOJir^ J. charg<^ the jerjr. The McMd of that 
proceediAga m the Court of Admiraiif j^havlng been raui with* 
out oppdaitiony it'is too late^|o object te it in die argnment. 
"Many inoonvenlenaeB might hsfipcn, if t(^ nde irere otherwise* 
The partf nJght be surpriaeilyajlAlMe tiie opportuhitj of sop« 
it by better eTidence»# thcT ob}eetiott had'been made in 
From this reco>d it appears^ i^on the papers found on 
boaid ofthis vessel, and which are e e pied hilo the reeord, that* 
iCiis vessel and carg^ originally belcMiyed to Bfkisb snbjects. 
That she was captured by a French jmratecr^ bro^ghl into the 
llavanay and there pipceeded againsi; but on what ground^ 
dose not appear. That^ to avoid the empenae te the ea^rs of 
beeping her theiia« Md ^e bij«ry to tb» ownete» an wUt wan 
eib u i ned Amoi dit govetMnent, to deliver Mr to a Mr. Frazer# 
m eec^fiijr^ .to* aUde the* event -of a toal decision of the cause in 
jl^ain ; asdhS4unp ef swi>iiiiniitioa» to pay the sum of 33)000 
doDarSf at «liich the e i i ale ^s w a veined. Mr. Onset bwng appli* 
»lto»h efa» i the anchrity» a«i lo^ from the mate, (the captam 
having left tim esiislf^ iMdlJ of lading in his own name. That 
*la bin of liiJhjp mm aiilursed by Craaett to Mr. HUl of New- 
VMcy wilh orders lo seb the* vessel and cargo, and to retain the 
•proceeds, to r^mburse and indemnify Croset. This evidence 
proves thic interest of Cruset^ and the first question i% whether' 







Buwel f». Uaion ipaunnee CompMiy; 

k was Ml iosurablp Jnterett, or- not ? *U » oUar, that a facloc^' 


irho has a lien on goods in hb poanMoiiy^fta «d insurahln m* 
terat. It also appears, that even in Englaody where wager 
policies are prohibited, that an expected profit may be inanred 

- on a valued policy. So the captors of a veaself who depend pm 
a grant oi^the prize from the crown, have such an ezpeeied in- 
terest, that they may insure it : a fortiorij may a spedaL inte« 
rest, like the present, be insured here ; where tlieve is no law 
Iphich prohibits wager polities. The reason why* in almaet 

.every case, the assured is vequind to prove an imeiestt arisen 
from the ionna of policiesi whisk are generaUf vpon iniciest» 
as it may appear. Cruset had complete possession of this pro- 
perty, and had a right to retain it, until he was ndieved from 
his engagpements on acfonnt of 2t« Whether he might ever be 
called ttpon, in consequence of the stipulation he had entered 
into, was not mpre utt9ertain» tittn was the interest of the as* 
sured, in the cases citad*.. Bnt he certainly had an interest in 
the property insured, wrttt he was discharged or indemnified. 
2d. The Court as of opinion, that this interest might be c^ 
vered under a policy on the cargo. 

3d. The interest which Gmset had, was a lien on this pro- 
perty in his possession* and which was to be sold for his indem- 
nity. The risk insured against, was a loss of this property, and 
Ihe means of bis indemmty. This loss has actuaHy happened 
hy one of the pecik.inaBred against, though the ^nsperty is re- 
stored %o the osigiHai owners; and though th^ loaa may not be 
total in iu nature, if the sentence s^d r e a t t ttt tjon' ahonld not 
destroy the lienf yet it is such a iMi^an ffce mmwri mighti by 
abandonment) throw upon the undoewcUeB. ' 

KoTB.-^T1ie kverment of interest in the ammtt^Wikf be Mier general or 
ipcciaL Under the faner^.tbe plaintiff may gAaoLOvidapoe tf any intact 
hemaybave. Ititiiiikkfftaatonly astothel{|feo^dbi»sftheaaRned| 
but also as to the quaniuof, gf interest 2 Harsh, 509. In lyMticy on goods 
^generallyy the inAund may give, as evidence of his interest a mortgage or 
fpeoial Uen. But, bgttomy and lespoodentia, cannot be iasored as goods. 

Sad, 191 1. 

^bot by the month ; 

CktipuUtMl. AU»t 

^tiM sf the KvcDtb 
E«B tnadatsd, ofall 
t Bm. tc PnU. M7, 
t Ml tbtt voy>g% his 

Al^Rflb TEMM, tsol. 



Shut «t. Jiekaotk 


mi49HIJ>rOTmf^ J. As I entitvlf c< 


CQumr in the •pinioii 
gnrtoAr tbejodge^f Hm Ditlriet Ceui^Hbii tite ^ueitloii, 
■od "fotf the reaaoM eiiigiied bf hinii'l deem it uaiieeessary to 
dieeuee the tnbfeet- mttch at large. It fo edmitted, thet no 
AoMm k to be met witli la the EngUehtCmitte, precisely 
Hke. tiie'pToseat; nor have we any municipal regulations^ 
which govern the case. We must, therefere, resort to those 
marine laws, which have always been acknowledged as autho- 
rity in England, as well as in most of the European comtnerekd 
nations; unless, where they have been altered, or modited, by 
the laws of partioolar States ; but which alterations are binding 
only on sueh SitCes. 

The seventh article' of the Laws of Oleron declares ; that, if 
II noariner be taken sick on the vbfagef he ought to be put on 
riiore, and care should be taken of him at the expense of the 
ship. When the vessel is ready to sail, she Is* not t6 wait for 
him* ; but, still, he is to be en ti< fc4 to ^is ttrfl wages, if he reco- 
ver; and if he does not, his wife, or next of kin, is to have them^ 
deducth^ only such charges as the master haa be^n at for him.- 
l9ov)r, the only questions in this case are, fint; did\he mariner 
die on the voyage? and, second*) doei^ the expression, ^^fuli 
wages,*' .in the above article, mean tech as he had earned by 
hb services, to the time of his deaths Or such as he would have 
earned, had he lived and served outthe whole "voyage to Phila- 
delphia? Most unquestbnably, the decoaied Wae iMmf by hi* 
contract to perform the whole voyage, whiffb is described in 
tlhe articles to be, foDm PhiladelpMa to Bata^, and back again ; 
. and he would havo farMted the whole, had he deserted th^ 
ik^, «t any time pfetteus to the vessel's return to Philadel- 
. phia. I agree with flie jtidge of the District Court, that the 
stlpnlation t» p9if imfeir by^the month,' doeft not break the en- 
Urety of the contract for the voyage, bot^Bly fomishes a rule 
to adjust the quantuin for the voyage. It protects the owners 
agidbst im overpayment, in cohsequenoeof a short voyage; and 
the itiaijner against the risk of recebisE^ too little, in case of a 


«1» . . fENNSYLVANTtA, . 

Sims «t. Jackioa t 

long oae. It prey^nls •ither from speculatifl^ upon tlie olbery 
by AccoQUiiodatiitg' t^ rtwaA to the kngUi •£ tervice. 
..- 2d. Does the cxpreMiqii) ^f«U we^es*" 9Lpp\y t» what 
would have been due, if the nlftrioer had Mrred out the entiiw 
Voyages or, are we to limit it to such as have be^i eam«d hgr 
yervkes performed f If a certain sum lor the voyage be agreed 
upon, that Bum would constitute the full wages, sad is distin*' 
guishable ivom no wages at all, as where they have bees fbr(eit«* 
edt by the misconduct of the mariner ; or wages pro rata, whece 
they have been partly eanied, and are not forfeited. But, erecy 
doubt with respect to' the meaning of these expresai^ons, is clear* 
ed away by the decisioo in the case of Chandler V9. Greaves. («}* 
A mariner was engaged <m a voyage from London tOiHondurasi 
from thence to Pbiladelphii^ and back to London. The arti* 
cles were drawn in the usual form, and such I take to be the 
articles in the case now before us. The mariner being disabled, 
and totally disqualiied inta rendering any future service on 
the voyage, was left at Philadelphia, and the vessel returned to 
London. The Court determined that he was entitled 4q his 
foil wages, •land he accorcfingly recovered the same vages to 
which he would have been entitled, had he proceeded with the 
vessel to London. This case not only determines a principlei 
which is, in all its parts, applicable to the present ; but it de« 
cides, thai full wages, mean the aggregate amounts of all the 
monthly siwUf which weuld have accrued, upon the comple* 
tion of the voyage. This decision is expressly founded upoqi 
the seventh article of the Laws of Oleron, which entitles a sick 
sailor, who is left behind, to full wi^^es; a£d Ihe same article 
declares, that what such sick. sailor would \m antitlpA to, passes 
to his widow, or next of kin, in case of 1^ death. . 

I am, therefore, of opinioi^ that the coerce of Kbe Dbtrict 
Court ought to be aSrmed* 

Milnor, foir appellee. 

Moylan, faff appellant. 

(e) 2 H. BUc. 606, nott- - • 


A^RlL TERM, laoi • - i\1 

^Si^mm^m^mmmJ^ ■ » ■ i ■ i m' n pi i i^^w— *»*— JBWfcai 

Jojr et al. m. Witt2 et iL 

/ i 


^T 8t La^BENCB -»*. CHAHLJtS WlHY* t W. tVlJlf 2 ET Al« 

A fc B w«re inMted to the pbintifF and odien ; and A. hltving beooBM 
insolveiilt tiid a comniinion of bankniptcgr hating issuedragmst hitiiy thft 
creditors of A & B joined in rdleasing A ^m aU the debts due to then 
from the firm of A & B. The cammission of bankiuptcj being supe^< 
seded, the plaintiffs filed a bill on the equity side of the Circuit Cour^ 

' to set aside the release. Held, that a]] the parties to the release of A 
should have joined in the bill; and the demurrer^ for vint of such partie% 
was sustained. * ' 

trhere creditors are to be pud out of a iMMbft ftii4 ^a^'stt ilhited ill 

' the same ttansaction, so as to prstaw ptM^telveeil tbem ; sH should 

^ join in a bill v^bich may J>ring tbdt piBi^edii^iiMitft Ae obnnderation of 

. aCourt of Chancery. t t 

fro set amde a release, in such a case^ sH the parties to it must apply by 
name to the Court ; and one cannot act fer the whole. 

J. Its defendants having been indebted to ttie plainti^s, and to 
several other persons, and the defendant, Charles Wirtz, hav- 
ing got into insolvent circumstances, his propertjr, under the 
bankrupt Law of this State, was assigned over to certain per* 
sbns, for the benefit of his creditors ; upon which, they executed 
a release to him ef the debts due to them, mm Charles & 

•W3I»m Wirtz. The conimission of bankruptcy, being after- 

* Wardfl superseHed, because the petitioning creditor Wks not such 
% person, as was intended by the law; the plaintifia brought 

' ,ibt\t acUoii «gainit WMKam Wirtz, to recover th? debt due firom 

Charles and WilUani Wirtz ; but fuled, in consequence of the 

%bove release^-glTevisee&e of the joint debtors, being pleaded* 

ITlii* tAi ia tte4 by tice ef the creditors, who joined in the releaati 

'i»r the psrpoae of having it set aside, and for ebtnning payment 

' df tbeiy demand, out bf the estate of the said William Wirta^ 
In bis pDsaasaion \ and to set aside certain ▼oluotai/ cemrajan* 
.* to- ... 

H « 

^1 « 

I ( 

I ! 1 I 

I childreDr'fla tiM 

B Bbodd hKvc 

I. Practice, IS I, 

; or if k past 


Kl IjfIjfI mtt 

:p otedfinlUBof 

^ r the Buurad 

S tM* fioHey, 

VI ri 

'ards fiilly oorering 

the whole S' 
nsolvei^cjr ctf any of 
> (ar as it faa> been 
d, and the cfompany 

aras destrouB of being 
Koffee insured, as per 
Such mannpp^ as that 
•fiaf made in Londooi 
pplied -at the office of 
:red th» ktter of the - 
t insurance was made 
i^ ej ^ho, in his own hand) 
"Ship warranted 
Hills property) or parf • 
Case such insurance it 

■hsJl b« b(. 

:tt B3 tn ac t 



13 H H 

jpnly hair as tnucb. 
prder for miurance 
:g B construcuon to 
bat if bf mistake, B 
^'emcHt of the par- 
ptisuJering the dcedi 
dt the deed be un- 
give U a construc- 
£der to explain iDch 
I, that a reuoiiid>re 


t ; 







liM^aboye sum) being the antount oi th6 advances m%de as 
aboTe meMioned. ' The defendant put in. two pleat* '^Firsti 
the general issue: and) secdndly; aa atti^m««it by 99arfs 
Cole k Darry^ agahfst Gorser^ on wlriefi the defendant wift 
aamiooned^ as garnishee, in September^ tflOS^ on whicJi j^ft^* 

' ment was rendered in December, \B04^ ibr' 2029 dofiara afld 
i$ cents. To the second plea, the plaintifiP replied. In sHbstance^ 
that this debt was assigned to, and vested in Petit k Bayan^ 
long before the suing out the above attachment ; on which issue' 
was joined. 

On ,the trial, it appeared that Corser contiQQed debtor to 
Petit k Bayard, to a larger amount than the sum now demaod^ 
ed ; and, it was agreed^ that the jury should only try the quea* 
tion, whether Craig was liable to Corser in any, and. wliat aum| 
neaerving t,h0 question, whether tke aittachment and jndgmentf ^ 

' under the circumstances of the case^ are a bar to the recovery. 
ef the worn which the jury should find, or to any part of it. 

The 01^ question for the jury to decide^ was, whether Chan* 
ceaulm had authority to borrow this money, to lay out upo^ 
llie repairs aiid diaburBementa of the vessel. The jury &niB^ 
II ven^t for the whole sum) with interest. 

The cause coming on upon' the point reeerved^ Ingersoll, for 
tbe plaintiff, contended, that the bill of exchange was an assign* 
Iftent of this debt to Petit & Bayard; and^ though t&e billlie-' 
ing refused acceptance, their title was only an equitable one 9 
yiit, that was sufficient to protect the debt, in tlie hands of 

' CrAg, from the attachment of the creditors of Corser. Casea 
cited, i Atkinson^ 124. ^x fiarUy Bias. -.1 Stra. 165) 166< 
Axnh. Rep. 297. 1 Ves. jun. 280. Doug. 365. 1 Dallas, 139« 
9 Idem, 215. 

Hopkinson, on the other side^ insisted, that a bi2l» drawn, on 
the personal ci*e4it of the drawee, generally does not operate 
as an appropriiationj or assignment of tlie debt ; and that it is 
itoird for Corser to recover' this money, upon the ground of 
showing tiMt Petit $c Bayard, not he, Is entitled to it. That 





Cesser w. Cmg: 


gtetX mischiefs irooM hi^pen, if ch«8e latent equities receive 
tlie stticiioii of Couffts ; particulftrly, if they are to be so- far ntf^ 
fleedy as to overreach the judgment obtained by anodier ot^ 
ttlor ttpcm aitachment. But that) ttt any HU:e, Petit k Bayarl 
ooiifal not be noticed) unless it appeared on the face of the pto» 
beediiiga) that the suit. was brought for the use of the equitable 
ebdmant*' Cases cited, 3 Dallas, 27^ 1 Ves. 333. 1 Vea. juir. 

WJBBIJfOTOJ^y J,y deliYjsred the opinion of the Court 
The pofait reeenred b, whether, under the circumstances of this 
eftSOf the plaintHF is prcTented, by the attachment and judg>» 
"IMMit) fhmi fecoTei^ing the sum found due by thd verdict, fat 
the usb of Petit & Bayard. In considering this, there are tarti 
questions which present themseWea ; First ; did the bill oiFe»> 
^hange^ separately, or tiriten ks ^onnesdon with the letter of dtt 
22d March, from the plaiiitiff to' Petit Ic Bayard, amount to a 
assignment and iippropriaitionof the debt due from Ctaig^ (and 
ibr which the. bill was drawn,)* to Petit & Bayard! aod^ a^ 
tondiy \ if it did, is that right so far protected by kw, that il 
could not be attached, in the hands of Craig, by other credltora 
of Corsef, so as to defeat the right of Petit & Bay^M ? First; 
what is the nat«v« of a bill of exchange \ The definition of It 
i% «^aii instrument, by meslns of which a creditor may assifjn 
to a third person^ the legal, as well as the equitable i i ac K si in 
A debt ndsed by it, so as to vest in such assignee, a right of as* 
tton against the original debtor.'* (a) It is an op^n I<%ter of 
request, from one person to another, authorizing that person to 
pay the sum therein mentioned, to a third person) and is aih 
assignment, to such third person, of a debt due from the drawee 
tb the draper. If the drawee acknowledge that the debt thus 
assigned is due, by accepting^ the bill, then the holder may 

(«} 1 H. Black. 002. Owhy,!, 2. 

• » 

APRII. TSSM, liii. MT 

• « 

Goiaer m. Cna^^ 

fmaomm Mpif/^ bin io liisi><»wti nafliei Idb of diciiiime beii^ 
if||idi|ppc4 In tepur of commevcfi^ «BcafitjoQ8 kom tke com^ 
ia9n Itai rule8» leapectiiftg Ui» nwlgimr^tf ^f clUMet la a6ik|k 
If tbe 4l^wee r^»e to ac««|it» wd ]Mqr tli« bOI^ ibe rigftit «{' 
Ike b^er» tQ th^ «}«l>i o^ce sMgned to liii%ta wH tliertb|r ioM* 
jpaired; alUiough he ^ay not be entitled to reoorerthe teme im, 
tOB own nmne, foi^tbe WMit of a yiiMBiie la pay. But he maf 
sae the drawer, or the drawee^ in the ntfme of the drawer, Ibr 
the debt originally due, in conaequence of the implied contract 
0f the assignor of a efaose in action, that the debtor shall pay^ 
and on failure, that the assignor will. The MU being retain^ 
after protest, by the assignee, is evidence, that the amoy^t lip^ ' 
dbt been paid by the drawer, or any of the endorsers, i see aijp 
: fomhlc nwchief which can result from this doctrine. For^ tf 
after payment refused) and protest made, the drawee shouldi^ 
fmy over the funds in his hands to the drawer, or to his order^ 
without notice from tlie first atoignee,|hat he should retain the 
bill, and look to him for the amount, so far as he was bound to 
^y ; this would-be a good de£ence li^tqnst a suit brought in the 
name of the- dra;wer. U^ then, the debt in question was aiMgft* 
ed to Pedt h Bajrard, by the .bill of exchang;e, and the same 
remains sliftunsatitfed to them, and unpsid by the defondanti 
can tUfd persons, creditors of Corser, but net claiming as as* 
^rfgnees from him, defeat the r^fit of Petk h Bayard, by an 
attachment senred on Craig, as the debtor oi Corser ? -it is 
«ew a long tfane since those objections, which (Mice existed to 
tiie iMsigninent of choses in action, have ceased to be more than 
fermal* Courts of law, imitating the ezm^e of Courts of 
equity, take notice of such assignments, and will, to erery sub- ' 
Stantial purpose, i^ve them effect ; although they have not yet 
ventured to susudn an actk>n brought in the name of the as* 
flignee. But the beneficial interest rested in the assigned, ia 
so far regarded, that the defcndant is aOowed to set off a debt 
doo fro0i tfie ass^piee, in the same manner, aa if the action toA 

% * 



Coner ilf. Craip. 



I ■ in • 

l^een broQ|^ht in his name, (a) Regarding Petit 8c Bayardf 
therefore, at being sotetaaliidly^the pUintiift in this acUonJIRirt 
l^pneficiallf entitled to the dtuht, upon which this attachment is 
levied ; they have a right to recover under the name of Corser, 
i^iwithstaadittg thft attachment and judgment against him in 
. the State Court. 

Judgment must bt entered for tht plaintiff* 

, (0) Wbfther it 19 neceariuy, that tha interest of the eaffui qme imdt 
should be ra^ntisned iii the wyit wid deckr^tioot ne^d not be detenninedf 
. because, if such be the rule* it is sufficient if it appears in any part of the 
pleadings; and this replication states fully; the title of Petit & Bayaid; which 
title the second issue is intended to try. See Viner t». Keeley, 1 T. Rep. 






Browne's I/^ 


Browvb's Lftt 

Ejectment. The lessor of the plainli 

' her of the Population Company, i 

of a large body of lan^ in Penns) 

originally in three tiiwtees, who, b4 .^ 

veyed the land, the' objeotef this mn , ^.^^m^ waF0fker tr«et% hy leasee 
for tax. years; subject to aa annual ren% aad to a oovenaat, by tiie lessor, 
to bring suits to recover tbe land, and, at the end of tLe tern, to deUver 
it up to the trustees. Held, that the titled the lessor of tbe jilahitifl^ was 
sufficient to give the Circuit Court jurisdiction of the case. 

The lessor of the plaintiff had an equitable estate in the land, before the 
conveyance by the trustees ; and the Court could have Qompelied them 

' to convey the legal ertrte le'hhn, ni vhieh case, he could have maintain- 
ed a suit in the Cizcii]|.Co«rt, The co^^jrance of the tnutees^ havuig 
been voluntary, djpes not impair the jurisdiction. 

A. tenant in common, who is a citizen of another State, may sue in the Cir- 
cuit Court for bis portion, although hu co-tenants, who are citizens of the 
State where tihe lands are,* cannot maintain such a suit. 

A conveyance of lands^ of which tiie gnoitor is out of possession at the 
time cf the execution of the deid^ is valid, according to the common law 
of PemMyiraiva* 

XhE defia^daiit filed a bill, 09 the equity iide of tUs Couit, 
igA^Mt the iMflor; charging, t)i«t bis title to the land in ques^' 
tidi) wea'darived under some coloiirable conveyance, by per^ 
sent living in this State, with intent to give jurbdiction to tlie 
Circuit Court ; and praying a full discovery. The answer states^ 
that the defendant in equity, is a resident of New«Ydrk ; and 
that he is a member of the Population Company, and holds 165 
out of 2500 shares in^a large body of land, of which the pre- 
mises in question are a p;u*t That the legsl estate was vested 
in tio^ trustees, residi^ inPfna|iylvania> irtie, tm the fifth day 
of October, in the' year 180$, conve]^ the (and in question 
beuig ioo acreS) as also about 19 other tracts, of the same 


• • . • 



Browne's X^duee Ǥ. BrpwiM. 


^tltyy 1^ way qf lea^e» fur vsl fDfMy from first January, 
'805 ; renderiDg for each 400 acre tract, an. annual it»t of 40 
dollars ; by which leaae, the said de&udaut coTenants to }mD% 
suits for, and to ree«v«r Aid landsf and, at the end of the tenoy 
to deliver up the same to the trustees, who are to attow a cfr- 
tiun tern for the impfovemeDts'; that no other person is in- 
terested with him under the lease: that. this suit has been in- 
fttituted-by ttke desire of the managers of said con^iany ; but, 
that, be did not institute it for tbe purpose of trying the right 
of ^e company, but to reoof er the possession : that he intend' 
od to bring the . ejectment before it was brought ; but he first 
lieard of its being brought, by a letter from one of the trustees, 
who is ilso attorney in the catise, dated 22d October, 1805 s 
.^pfao,«t the same time, inform^ hxm, that the leases were ex- 
ecuted, and the counterparty reiujy to bo executed. The suits 
iFpre brought to Octol^ term, 1805. 

Rawle and Levy now movod, on this answer, to strike off aO 
these ejectments, upon two grounds r first, that the tract in 
dispute, is not worth 500 dollars ; but no evidence of this was 
produced; and, as authority on this point, they cited cases, 
where Judge Chase, at the Cisciut Court of Oelawarei called 
: upon the plaintiff to prove the value of the land in dispute ; 
and, foiling to show its value to amount to 500 dollars, he 
struck off the suit. Second^y^ Hut the conveyaifoe is merdy 
coioumble, as a|»pears from thd fmswer, and tbo cflreumstanees 
«f the esse; via. the execution of the deod, and Winfii^ of tbo 
4Uit without the knowledge of the plaintiffs the short tevesi 
and high rent for wUd, uncultivated 4m)s, holdeo by adverse 
possessioo. % Dallsa, 381. 365. 3 Idem, 378. Thirdly; that 
the lease ia void, (the grantors beiiig out of ptsfsossion,) by tho 
oaosmon law. The Court informed the couosal, that t]us quos» 
tion Was at rest in this State, and that this Court had d^0r^ 
minedb4n fi^t "9^* M*N«U, ttet tkis yru no objef^tion. 

The defondnnt's oounsal also ofiwod somo ovideoc^ Jfep dis^ 
imdit ihp mnm^ ilMi*»NBigot | iWM i by ^te otHrjMOi tiii 

• * 

^ APRIL TERM, 18^. 431 

Blow I w^ licttM ft. Browi)^ 


•MwcrlMlDg «MN:l«lilt«; ^cw MI|Mttd HQpkj]ift))RoaBey in- 
tilted, ibftt this fU« «ppIlM Itt Clialictrjr, mbmt no mpttBatkiQ 
U pux in ; it is not tlie case, Wlwte iIm Mnwtr k iwde usaof at 
kiw. He cited Hiade^i Pme. IT. Doti{[|PMi» fee. PmOw's 
Bvid. i4. S7. (tf) 

' Oil the otiier aide, lot^enDll and Lewii iiudAted, that tlw 
fbuntiflr baa an equitaOvle title, and alto a legal title, and that 
Chit is Kke tlie case of Hunt and M'Neil : that plaintiff may 
iue on an equitable ^e ; and, if it be objected, that he cannot 
tecover cm it^ though in Sims and Irvin the deeinen was others 
wise ; still the objection should be made at the trial, and it is nci 
reason for dismis^g the suttSv 

J^ tke Cffun. • The leaaot ef the plaintiff has an equftaUe 
Ikle, as tenant In common, es lei ont of 2500 parts of the en- 
tisetfttct of Uoid «tBted te tl^ trustees; ier the benefit of those 
erfto compose what is called the Populadon Company. The 
trustees haTe.con?eyed to the lessor of the pldbtiff in seTeralty, 
the knds hi 4|uesiion, for the term of six years; and if they ha4 
eenreyed it te hte in fee, though for the ^cfmss purpose ef 
enahttbg hfm to Mcover on the law, instead of the equity side 
of this Court, how woM this <»ppose either the letter, or spirit 
ef the Gmfftitution and Aet of Congress I Mot the ibrmer^ 
because the parlies are eitfeens of different Stales ; nor the 
kcter, betlMe this Court has juftisdiction of the c4use without 
the deed, and ll is merely the m^de of proceedings which ia 
changed' by it Suppose, inttead of 1600 partners, there were 
bat two, the one living in Mew-York^ and the other in Penn« 
syltania, andt that the trustee shoidd connrey to the New- York , 
citizen, one-half 6f all the land in severalty. Upon what ground 

tDuhl his right to recover that half be resisted, even although 


(«) QMvy, Mtothb poist, ttedter diere if aot reswyp Bat thW'diii^ 
enoei becsitte, i&e^puly» if {Madff do net replf, dtfeadsnt csaaot tahs 
d^p otd J a a s la lappstt tbh sajirsi^ asr la tosd g^p a cswnJIpnsii go> W. 

-I •• 


Browne's Leasee ct. BKowne. 

■ >■ I »^— ^1— — — »Ht * M l I «<■ PI I ■■ I I ■ ^■■■■^■l ■ IP 

it apiMaredy diat, aa soon af lie tl|CMil4 Moover^ k wa^ iua ia« 
tention to'raet one-half of the land reooveitd, in the other 
tenant in comfai^n ? Geuld he Qotr without the deed, hare re*- 
eO¥ered the same faqid^ hy filton; a bill on the equity side of this 
Court, agaii&st the trustees and the other equitable owners, so 
as to compel the trustees to convey to him in seTeralty his half 
of the land : and after that..- could he not institute suits on the 
law side of tfaia Court, against the tenants ^n possession ? If the 
trustee could be comp^ed to make such a conveyance, and 
this would BMSt certainly be the case, though the plaintiff 
should state in his bill, that his object was to sue on the law 
side of this Cpurt, as soon as the conveyance was made ; may 
not the trustee make the conveyance, without a decree against 
him I The Pennsylvania iteiiant in conunon, could never sue 
in this Court, either at law, er io equity, for his part; Aer 
would the avowed intention pf the New*Yor h i tenan t, to cenvef 
one-half of the land to his companion, after the recovery; be an 
objection with this Court, on its equity, side to ordering a con* 
veyance. The oisjection could only arise, when the New- York 
tenant in common should attempt to recover more than hia 
proportion under his existu^g equitable^tle, or under a colour- 
able conveyance for such purpose. I cannot, I conftss, dislin* 
guish thb case from that of Hurst and M'Neil ; and, as we are 
not satisfied, that that opinion was wrong, we think it right to 
decide this t^uestion in the ^ame manner.' At any rate, this 
motion is improper at this time ; because, if thfir deed be good, 
the plaintiff may maintain his ejectment upon it, beyond all db- 
pute ;, and, if void, so that his only title is an equitable one, the 
. objection to bis recovery, on such title, can be only proper at 

the trial. 

Ruie disckargedf 

» t 

« # 

APRIL TERM, ^806. • 



Mwris w. Hunt. 

•*— r 


Maitnis Ttf • HcRsT. 


tR aa action of amun^imig if one jp^xfy relies upon an account ^i^^vettd hy 
the other paHy* without other proof to establiah his demandi the ^m^ 

. producing the account may dischar|^e himself^ by relyii^ oa the itiema'of 
credit, on the other si$le of the account 

If the credit side of an account is taken to charge the person who defitered 
it, the items on the debit ride must also be admitted as prored by tbe' 

■ account 

X HIS- cause cane oa vtmiff a rttle for • new triijf oo the 
fi^ttttd of earpri»e,aihrt^mtiMlifirotiflt» The plaintiff, having de- 
lfvt#e^ m fu) ftccoiiBi kelbt^ bfkiging the action, in which many 
years transactioos between the parties- were included, to a con- 
siderable asnenHt; the plaintiff only proved one item, of a mo- 
dem date, to the amount of about J6330, being rents received 
by the defendant, which belonged to tlie plidntiff. The defend*^ 
ant attempted to meet this demand, by selqctlng out of the sHc- 
cottnt, a eredit to a larger amount, but without atten^pting to 
prove h ; relying on it, as an admission by the plaintiff. The 
Court informed the counsel, at the trial, that if he relied upon 
the credit side of that account, as evidence against the plaintiff, 
he most admit the d'ebit side, unless he could falsify it by evi- 
dence. Upon this, the counsel let the jury go out, who found 
the J&230, with interest, which had been established. 

M. Levy, now contended, that ij'ter receiving the account, 
he expected the pl^ntiff would be obliged to go thraugh the 
whole; and that he could not pick out one item, and upon 
proving it, recover to that amount ; that therefore he was 
surprised at the trial* 3d. That though a defendant may, by 
lufl answer, charge himself, his answer is not always sufficie|it 
to discharge him ; and therefore, tfa« aoooiiBt rendeMdj ^aa 

SI • 

# . 

, ' • 




III 1 1 

I ■■! 

good eridence ag»in»t ; but noft Imt 1km ]^«ntiff. Gl^. Lair of 
Evid. 15$. 9 Vcrn. 194. 

By the C^urt, If a nan is orflod upon to render an accoaa^, 
for the parp<aite of enabtlng the plaintiff to estaUiiA a demand 
againftt the defea^s^t, if he b obfiged to rely upon tiiis ttato- 
ment to charge him p the defen^nt is entitled to be discharged 
by it. If he is called upon to state, whether a particular suia 
is not due, and the defendsAt states, that it was to be paid on 
a condition not performed, you must take the' acknowledg- 
ment altogether. An account is composed of items, and they 
are placed on the debit and credit aide. If the defendant pro- 
duces the account, you can no more take the items on the cre- 
dit side to charge him, and reject the debits; than, in the case 
first supposed, you can take the ae to owle dgm wit d wlwt wm 
agreed to be paid, and reject what he states, with re s ^ p c f ts 
the condition. The Terdict therefore was right. 

Rule dUeh^rged. 



I. ■■itorr m. Case. 



Tlie plaintiff and the defendant weoe partners in a particular d^pment, made 

' ' by the former to the latter; and the proceeds thereof were to be reimtted 
to the plaintiff^ to be infested in another tlupment on the same aoesottnt. 
•No second afaipiaanl bmklg fteenmaAa, the phoniiff eMned half the 
proceeds of the fint jouvt tEanaactioDt and i a gtitolBd tiiis siut lor there- 
Govery thereof. It was held, that although the defeadant alleged he had 
shipped a siun of money to the phuntiff, amounting, as he stated, to more 
tlian lus portion of the proceeds, the action oiindebiiaius asaumptit could 
not be sustained, as the aceotoiti between die partners could not be con* 
ttdered as setded. * 

To ewartlute a wMmmrtt cf Kttgm» Iwiyin^psaHKii^ all pmst consent 
to aad be bdond by iW er «one «afl» hifn and ^is eonaent nrast be express^ 
or to be iDDfied fitom cncumstanees* 

Until a partnership is (fisaolvedt the accounts of the partners liquidated, and 
a balance struck, one partner cannot sue another in an action of indebikh 

jL his was an action for money had and received, by one part- 
ner against another, for the balance of a particular stiipmentf 
in whicti they were jointly interested in profit and loss; and the 
proceeds, when remitted by defendant, from St. Thomas, were 
to be inreated in another cargo, to be sent out on the same ac- 
count. The defence at the trial was, that l,Vdb dollars, which 
was more than the balance of the cargo not remitted, was sent 
in a certain vessel, which was lost, and with 'her the money. 
The defendant, on his 'arrival, being called upon by the wife of 
fhe plaintiff, gave different and contradictory accounts of the 
remittance ; and to the agept of the plaintiff he stated, that he 
had sent, in the vessel lost, the money due to plaintiff; which 
sum was ascertuned to be 1,100 dollars; and that he had writ- 

(n) See 4Mi% 9«is 413. 


' \ 


\ » • 

V • 



Laraalere f». Case. 

ten to plaintiff to pay leo'doHtMy^art of that sum, whkh ex* 
ceeded the sum 4ne the plaintifT, to the order of the defendant. 
The jurjr, believinfg the witneAes, who proved the contradic- 
tory accounu given by the defendant, of the tranaaction, rather 
than the* captains who swore positivety to the shipment and loaa 
of the mene^, ibund fi>r the f^aitMiff; but a much less sum thai^ 
was claimed, reserving the point, whether this action could be- 

The question now came oit, upon a motion to enter op a non- 
suit. Mr. Reed, in support of the Ynotion, Insisted that the 
partnership was stil) continu^g, notwithstanding a new cargo 
was not sent out, and that it was not to terminate till that was 
done, 0C till it was dissolved by the parlies. That until disso- 
lution, and an account liquidated by the partners, and a prooiiae. 
by one to pay the -bailee, tlita mtlktmj oe'imMliratea ammmfh 
%iU will not lie. S Dura. Ic figst, 478, 479.' 

Ouponceau, against the motion, argued, that the partnefaldp 
was ended, by the defendant's not remitting; and that one part- 
ner alone may dissolve, though, if contrary to agreement, he 
may be liable to hie partner in damages. He 'admitted, that 
this action, by one partner agatns( anothericaaiiot be maintain- 
ed, unless after the dissolution tlie balance waa atmck} and a 
prom|ae to pay. Bui that the partnevshqi here waa disaolved, 
and the defendant had ackpowledged what was tbeWance due, 
and said that he bad remitted it v which aUegatie% however, is 
fiUsified by the ^rdict. He read 2 N. Y. T. Rep. 393. 

By the Coi^r/.^Tbe law being adqutted, there can be no doubt 
in this case.. Even if the evidence proved more clearly than it 
does, that the defendant acknowledged the balance due the 
plaintiiT to be the 1*100 dollars, after deducting the 160 dollars* 
this.U not a balance upon a settled account ; for, to constitittc 
such an account, all the parties n^ust consent to U ; all must be 
bound by it, or none are. This consent, must be either express 
or implied. I am iocttied. tP Uupt<, that if, after dissolution, 

• » 

AKBVi nm^ ia0e 




tu rn'' . , ■ - ■ !' 

Tifciiwlrwi »f* Case. 


one paitiMr weve iQ state Ite acoiuty and Mud it to the^ther, 
vho should by hie eondiiGt rtiaw his ae^ttiesceDciS) by retsiniiig 
it for a considerable time, wilhoiit objections^ Ihal he wight be 
bomd bgr^that stalenmti as well as ^le others and that this ac- 
tion lor thftrhalance, mif^ Ikbn be maintained. But^ m this 
case, the plaintiff never dad assent to the byance* ss stated by 
the defendant) but on the eonti^ry, ctoimed in this action tnore 
than th« 940 dollars^ and much more than the jury supposed 
to be the balance; which shows that the balance was not struck} 
so as, to bind both partij^. The action, then, cannot be sus- 

J^oTiMuit awarded. 



« •■ 

• • 





■iii.^ i ■ 

Lamaleiv w.- Csie. 

ten to plaintiff to pay 160"^ollaiia»-|>trt of ^ 
ceeded the sirni Aic the plaintiff, to the ^ ^ 
The jury, beHcving the witnen^es, y^ ^ 
tory accounta given by the defcndai^ \ \ 
than the*captai»> who awore positjjr ^ %\ 
of the money, fetind for the plal| \^\\ 
vas claimed, reserving the v4 ^ ^ 4 


The question now came* ^ ^, 
suit. Mr. Re*d, in l^W | ^ ^ 
partnership was still ©* | \ 
was not sent out, ajy '' 
done, or till it wa%^ | 
lution, and an ac; 
bf one to pajr* 
»ir, will not %f 




.» • 

was ended, 
ner alone 
may be 


.4rat applied tf^ bf 4^^ <^ 

' .tff hia appearane^^ at whidl time 

«.Aat ft thia time, IngetaoH end Bawie 


, but open aome diaagreeoMmt abeut the 

demanded, no engagement had beeb OMtde, bat 

js atiU going ea. Mr. Gibaeii oniewd hia appear- 

Btered before the return. ^bf. Duriai^ the aataie 

iiowever, to whkh the tatta weie relanied, IngenoU and 
,yle were employed, to ap'paar to a)l the atuttt mmI recetved 
^ payment of some mon^y. They afterwarda raccived etiM^ 
loes, for the ai|;umeata in the two cauaea whieh^Mre tiie&^ 
Mr. Gibaoa was offbred an addkkHial fee, but frq^i 4||Bcacy to 
the other gentlemen, refuaed. The namea of aH tfaa geatle- 
men were entered on the docket for the defeadaiit% attd ail the 
rulea taken in the cauaea, defeacea, and motiona, wen taken 
and made by IngeraoU ttid Rawle. No warrant of attorney was 
given to either, nor is it uaual m this State to give thami though 
it haa aometigiea bicii ioiie. 


« • 




m, DnmelL 


Bff the Comrt. If a wtfmil of attorney liad bma givon to 
Mr. O i fca oDi tfce i^itl eman fint emplofad, he would haYobeoo 
excloMTfllf entMed to die attomej'a ttea. But tliis kk beiiig 
the cMe» tiie drifaiiltot tw^iaright toefcployMiaMiy attom^rg- 
as he p Wo ae d ; and k appeara that the three genUemeo were ' 
employed geoerallf » to appear» without aoy dittinfftion made or 
coutempUnedhatween their duties as comael and attomey* We 
can only judge of the nature of their employment^ hy what they 
did) and all of them appear equally to have performed the dtt« 
ties of attomeya. AD, therefbre» are equally entitled to divide 
the attorneys* fees.- 

• . 

Binney and Hopkinson, for Ingersoll and Rawle. 
Lewis and Levy, for Gibson. 

• • i 


.440 . immBjuvAmA, 

ftuMel 0f.. Unioii JimumcfrCoinpMiy. 


Moticm <br 4 Bcw tiU, im the gfwind (bit llM Cwttt bad aS^^ 
a fereign Court of AdnMl^, to go to tiie jurf aa eriteioei the Mnenot 
haviu|^ been k^ii teathaoBj. The Kfianl hihl beea lead on the tnalt 
without objeclioiML The CouH zefuaed to grant a new trial^ aa the ip- 
plication is too late. 

X HIS cause came on upon a rule for a new trial, (a) The 
l^und waSf that the Court was mistaken in point of laW| in 
stating that the papers, which respected the interest of the 
plaintiff, in the record of the Admiralty Court at Halifax, was 
evidence, and therefore, that the plaintiff, not having proved his 
interest by other evidence, ought not to recover. Tilghman 
and Dallas, in favour of the motion,, con tended, that as the 
9entence and flroceedingSy were clearly legal evidence, the de- 
fendant's counsel, could not properly have objected to the read- 
ing of the whole record ; but ^till, the papers found on board, 
were not proper evidence, and their omitting t6 object to the 
reading of th%m, did not make them evidence. That in argu- 
ment, this was contended for, and that that was the proper stage 
of the cause, tp make the objection. Where a record is offered 
in evidence, the whole must be read. Gilb. Evidence, 19. 23. 
We informed the plaintiff's counsel, before the trial came on, 
that we should object to their proving the interest by that re- 

IngersoD and Rawle, against the motion. The time to ob- 
ject to improper evidence, is, when it i^ offered; but it comes 
too late, after the counsel have begun to sum up ; and if part 
of a record be improper, the objection shoiUd be made when it 
is offered to be read. 

See ante^ page 409. 











Buflsel «9. TTniwiiinpiiniiirr rnmpnmy 


HMSffmSiPOMf^J^' lin-Misr^ikAttUiiiiotlBttigniftde; 
t)iv tteielk mmj c»re shouM be tAim ft protcipt imuihioo 
rnmpiio «galHit, frauds, aad |9 gifie Mma «?tr)r kga^aAv&n* 
't>gf^ wfcito ii»f|F «pe iigally ear^lMMted ivMD tke rUk, yet they 
^ii^tf Itliiiky to F^r^ fi«ai ot^tions w%icb haTe^iift i^pear-* 
ipceof b^n|r<^<4>fiMMu ^iMweyeri tiay i haggflii to HwJie auch| 
. Iboy must, Ittie all oAer suitoiity bo «ilMod to ^e booeftt of 
Aon, wkere they are well supported. It vss on this aocouat, 
|bat I thought it hi^d^ propeiv at the tnal, that they ahooW 
allow the rooord to bo Mid thidbgh, without objoclistt, as k 
W9M jj^aash that the defemAants relied uppii a Ifgal <|uostioli of 
great dMI^Bvlty, connected witktiin^erHs; whieli'wa% whether 
the plaintiff hid an iiisitfafelo hitoresl or not? 1 tiiink the onun* 
Hel are not obliged, in aiqr case,^ iMho objectioBii which go 
mctdy to fbraif aind which wre only ealeulated to prodpoo delay^ 
wr to tuirh the other party aroimd, ^yinb i th g another aetioftf and^ 
'one or the otlier of theso^ wouM have boas the case, had the ob« 
joction been' made in tiixfo« The cose niif^t have been difTer- 
ent^ had there been any well gromded reason to question tho 
amthemicity h( these \^m. But, who could doubt, that the 
papers found oq bo«^ thio vessel, shoiiii^g the interest of Cruset 
in the cargo, in coosequooce of the reifonsibility he had emer- 
ged iotofor the owners, were true and genuine ? How else could 
she ha¥e been released ? Having a bill of lading for the whole 
cargo, why should bo send with it puporst to, prove that he had 
only a special interest, unless such was the fact ? I do not ad- 
aMt, that all the papers 'and evidence, found in a record of a 
Court of Admiralty, fonn a part of that rocofd^or must neces- 
ilvSf' be Mad, in an actkm betweeh iosuiod aod insoroa, becauso 
the aeatence is read^ The sentence and proceedings are cer* 
tainly proper, to sl^w Jthe condemnation, and the grounds upon 
which the CoUrt proceeded* But, it does not follow, that every 
paper stuffe<|' into the rfcord» itaconnected with the condemns* 
tion, and alle^iog third ponoqa. only, must pf conrw, b$ read> 
ifliiosoMMobo.. . 

. I 

-■■ ' •' ; 


> i . 





RusBcl tw. Union bsonnce Compai^. 


^ If an efejectlon ' was » Int eiiiig i !• be Inadt to fte eyiAsnce 
of tii« pap«ni ibuni tffr board, irihd set iorih io the ree^r^; ft 
/ought to have been 4»kenv irhen an attenopt iNLa-anda tor read 
them; oriK aoy rata, before the coonael far Hm fdUatifir bal 
•finishaijl lib opening. Were a dli^refit rule to btf'.pur^k0d^ 
great iafBonrenlences and irregulatitles would fbltow. If it a^ 
peared, that injuatica had been done, in co&aafaenca of the 
readiag of these papers, ft would be a sufficient reason for set*^ 
ting aside the .verdict. But there is no^round laid for such i 
•ttggaatsoa^ and therefore, the t^er^Ket ought to stuid. 

^dgt PetevM concurred* Ha added, that he thought, aa 
Cruaat iMM^ in hk letter, which was shown to the company, 
atalsd^ that these papers would be on hoard, that he was bound 
to havo'liiaaa there; and, l| yf f aa ring bf the record that thef 
were so^ strengthened the position of the plaintiff 'a ooonaei^ 
' 4iat they were proper teridMc^. v 

tf" • • 

Rule diicharged. 

f * 

'*•'.. ' 


• ;. -x 

'tewnds vs. UnioA Iiuurance Compaajr* 

•■^— i^— — — i— — ^ ■ "^i ■ I ■ 111 I » I I f . I II -■ _ ^ WP.^^w— WtWiP— »^— ' 



SfMONQs vA. Union Insurance Comfanv. (a) ^ 


' f 

Whe^ the supivtStrgo of t veiliei wlK^h^iad been mftbaBitA, 'iQte vo3rag^ 
broken up* and the>andoiied to Hie midBilrfiteT% ba» in^cBted 

• Ibe proceeds of the oat«h»d 'shipment ui met^r cugo» upon the |ftks of 
vbich a fieigiit has beeaifnadei tbe underwriteia ate entitled to the profit 

When the outward voya^^e^of a vessel is broken up, and the vessel infured 
earns freight on her- return voyage { the under writens upon h^r, on her 
outward voyage, have no claim to the freight earned -afer the voylige in- 
sured has been broken up. * ' 

* • . - > . 

JtCULE for new tvial. iDallas^ fef the rule, argued^ 1st. that 
tlHK only pons X» which this vessel c^uld go, ver^ape Franfois,- 
&t some port in the bite of Leogan ; aod^is the whole ishiad was 
m a state of blockade, the underwriters 'iKoutd have been exdne- 
rrfted, if she bad sttetapted t6 enter etther of the ports to which 
she was destined; and consequently, that they could not be 
liftblet if she was preventdd^ fiom ctt i fei ' i ng them. The proof 
relied upon, to eetablisli the tsct tha^ ^ whole island was un- 
der blockade, was the captain's protest. 

M* That the proceeds of the cargo, were invested in another 
emrgo, taken in at Jamaica, to which the defendants were en- 
titled, but it had not b^n allowed. 

3d. That the retdrn freight ought to have been allowed. 

fyjSHJJVG TOJSr, J. The deppsitkui of the captain is posi- 
tive^ that only Cape Francois was Uc^kaded^ and there is rea- 
son to believe, > from the whole 'evidence, that she Was warned' 
ofiP from St. Dommgo^ in consequence of a suspicion that she 
had gunpowder on ttoard. The protest of the captain was 
read, merely to impeach- his depositiont and the jury believed, 

(o) See wrH^ page 382. ' ^ 

• » • » 



> . • » - 


• '* 

• * 



Simonds «•. UnicNi Imuiftoce Compaagr* 


dial oilf tbe C«pe wm bfeckidra. The wmel was compellei 

by ferce to go i6 jMnaiea* ami there to end* ner Toyage, which 

.waa a complete deitmction of it. The plaintiff of coune wai 

eudlled to claim for a total loss. 

Sd,* No evidence was given, of what were the proceeds of the 

homewai4 carg^ nor was |t nwde a point on the trial. It is as 

likely that there wm a loss, as a profit. I£^ however, the retuni 

earfQ was purchased with the proceeds of the outward cargo, 

the und e r w ri ters should have credit fiir the prooeeda of it, if 

there was any profit. As to the proceeds of the cargo, as it 

was sold at Jamaica, it was allowed. If more wras made, the 

defendants should be credited for them. But this is no reason 

lor setting aside the verdict, tkongk it a reason for this 

Court rdieving in another way. 

. 3d. This dliim is totally without foundation* The voyi^ 

was IQ have been out ai^d home; but being broken up, it terml- 

iwted at Jamaica; and.^he defendants might as well insist upon 

all the freights, which this vessel plight have earned, if ahe lyid 

gone fi^m Jamaica on a tnuding voyage to Europe, or the E$4, 

Indies, until her reljpn^as to the freight from Jsunaica to tte 

United States. .. v . 

Rule ditcharged. 

* • 

« * 



V- - • •• 

AFSU. TERM» Ilil. 





• • 



JackaoB m. Baker. 

Jackson vs, Baksr. (a) 


Molicm fat a new likJ.— Where an i^ent, who has aold the gfoods of his 
priiu^pal, has taken a bond for the ameunt of the sale, in ph»e of "the 
abnple f>ortraft debt ori^naUj contracted for the gooda* and hai included 
in the bond a debt due to him on hia own account, by the debtor for the 
{^ooda$ a demand of the bond, before action brought agwnst him by the 
imncipal, for the proceeda of the sale of the goods, ia not necessary. 

AHier, if the bond had not been taken for any ainn but that dae for the 
goodi of tile principaL 

Rule for new trial : 1 st. Because the defendant -Wfm not an- 
swerable, until he should bave'redeived the money. 3 Dallas. 
134. 2d. That mdebUatu9^ aaaumfiHi for money had and re* 
ceivedy will not tie in this case. 

^ On the first point; I repeated what was stated in the charge 
to the jury. (A) Secondly*. That the isoodiict of the defendanti 
by extinguishing the original 'debt^ and destroying all privity 
between the pfaintUTf and the person tx> whom the goods were 
sold, is tn. be considered as a receiver of that debt, to the use 

* of the pUdtiff, as much' so, as if he had released the debt. 


Jtule dUcharged. 

(a) See anUt pagis 9M. 

(^) The piiadlpalgmiind uaed o» lliia aEgUBEient for a new tria]^ wa% t^ 
the plaintiff ooght .to have dananded the b^md, before he brought the auit. 
The Courts in answer to thiab observed, that if a bond had been taken for 
this debt alone, tliia argument might have weight in it But, aa it was mix- 
ed with the defendant's mon^, such demand was unnecessary; becauae, the 
plaintiff could not have compelled the defendant to defiver the erideaceof 
a debt due to tt>e defondant, thssgH in fait it contvned amey due to*the 

■ ' t . /' ■ 

* • i 

• $ 

V . 





Vi ■] 


IT ■ 



. h 

n 01 



d. Re[^ication, tb>t 
', igentB of the ptuiv- 
fl t lid ^^ ^■"■■P^ - 

& Secretary of the 

^enanu, b^ which 
fra to the bankery 
: instalmeQU, riz : 
rtbe 1st of March, 
ailure, then to pa; , 
j« TreraiTy of Uib 
itwenty per ceat., 
B aame manner, a« 
3iad been pntcat- 

■ileBi that the fint 
iie of the 500,000 
a baBkers of the 

K^ [It were not paid ; 

£ti ifrj. Special <<le- 



--..- • 







The United States «t. Gumey et aL 



By the Court. The replicatiHi i» ceitainly doubio, te «itlier 
wm^pajoneDt tm the day, or iMa»«cc0ptatice In a^tii£icti0iiy la 
m anairar to tl^ plea, though peiixapa act a legd poe ; but if 
fidt 8*1 both together cannot be. They are perfectly diatinct 
'matterty m^ not the component parta of a plea. But» aa thia 
determinatifHi wotdd require na to decide upiHi the yalidity of 
the bar set up to the plea, which ia attended with great diffi- 
culty, we think it best to adjourn the cause to the Supreme' 
Court, upon a diaa^preement of the judgea ; which, hqwer^r, » 
hot real. 

Dallas, for United Stihkea. 

Rawle fc TOgtaiah, fa» dafcxhnts. 


Note. — This opinion aflbtted by the Supreme Courts Fe- 
bruary I BOS. Cranch. 


• ♦ 

* I 

• f 

\ - 

« . 

.* • 




* • k 



■ I ^ - — — -■ - ■■ WW^WI— 1 

Kii^oa«L Kiacnd etaU 

» *4 




KufCMTI^ir V#. KlVOAIB BiT 401** •# 

£xoq>titoiw t»4ke report of idmat. 

It is a geueral lulQy accofdinf to the kw aAd fwnelice of Pe]iJi^lvaii% that 
awariis shall be so pluinly oxpressec}, that, by afiurconstnictioii of tbe 
wUole instrument, or by reference to something connected with it, the 
parties tAay know precisely wha^ they are to do. If certainty can be ob- 
. tained, by a reference to sometfelqg^ dAofn the award, &e puty may, hf 
an av«nDent»- cure an objeetloii» otkarwiie fiital. 

In the case of eommon awadi^ mH iiiid«» 4it lawt of Ihibltate, the aifai* 
trators camiat be catted vpfm^.^iUprviJwor in eqtDly, todicftiwii <he 
grounds upon which they made their, aarapd* 

When, afler sundty meetings, aad after cfeiy efibrt to obtain a ciMncidence 
of opinion among them, the third referee, who would not sign the 
award, withdrew, and declared that it would be unnecessaiy to call upon 
\6sxk^ to meet on the aoBject of the reference again \ the nmaiaing two 
referees had a right to prooeed, aa4 make a« awaid. 

'A. HIS cause came mi upqp eitc^ptipiM to « repofif ttade voder 
a rule of Court, referring cIm cauat to three VefeiMfl^ or any tiro 
cf tlicjn. The report found 10,000 dollws doe to the pUSntiff; 
feaenring to the Court, the question » lo proviaion^ deHvcved^ 
or payments made to Henry Kinga|eii ; and, if allowed by Uie 
Court, then to be /deducted from tlio««i|i awarded; asatoat* 
Ml of ezcbapge for ^£200^ drawo by H. Kingsicm, «^<flB»* 
dorsed by tbe plaintiff^ which is Co be deducted, wkh damagea 
and interest, on the bill being delivered up to the pUdtttiif. The 
«iceptioos went, some of them, to the meriu, and some of 
them were to the form of the report, as not. being final, or cer* 
taio. Another exception was, that only two of the r e fe i^ ccs do* 
ddedy without giviag notice lo, or consnltiBg with the thifd. 
Upom the exarafaiatlop ol tl» i afaf o u s» it appeared, that the 
three referees mot often on the subject ; byt, as o«e could not 
iCfoe wirh the other twoy on the impo0a»> potet» m dl^«fi;> 

I « 1 r 



• • • 





Kingston w. Kincatd et ah 

k^ anid it was uiVMcessaiy to cailupw) Mm agayi^Mid he liilli* 
dtMP* Some «fidfDoe was given hf the rflfera«s> l» iliQW-vl|i|l 

the BfttMNf of the claim for prqvisieiM funuehedt and j^* 
lie qiade t» fitouy Kingston) aiMl fixing their aflHfont. It 

wrgved by Rewle and Gibson for defendant, and l^feysoH 

' WjiSHI^GTOJ^^J.fdtlivwed the opmvm^^lhe Conn. The 
.f»b|eeticms in«de to the fodrm of this report are, that it is nekher 
QftfUm nor finah The rule, as to awards in general, and. which 
eppJies wilh equal reason^ to reports under the Actof Aseem*; 
hfy o£ this Siftte) is» that thej should be. so plainlf eaipiesaed^ 
thatf by e foir ouastmetioQ of ^the whole ioetniment, or by re« 
fareoce lo something dghw the award, the party may, by aver^ 
faent,. cure an objection, wh^ji^h might otherwise be fatal. AS| 
if the awa.rd be, that one of the paoiies should p^y his pn^rr 
tion of t)|e tosS| whieh should hap|^ tq^ the ship during th# 
Vif|yai8% and of tj»e expenses of the .woyage ; or to pay the 
ehftrges of u suit ; or aU siiph moqegpe as the other had expend'^ 
t4 19. the pirosecutioa of a suit } thdia wcsrtainties may be 
tu r ed, in the first laatencett. by cakulatien ; in the second, 1^ 
flforeoce tf ihr M^RMy'a bill ; and, in the third» by s)j^wm|^ 
i|l|MQt».wh«U«ii^ vas laid out* But, if therebe no^meana^l 
aQiv|f9ig:at a r easomJ il p degree of certainty, by the aid of i^ 
thing refocred tOy. the uncertainp^ eannot he helped hy wm»> 
HH^j as, if the defendants be jardeeed to pay sa,|n« is in 
fpopaence dn^ w to pay for a certain mifmadKj of wheat, so 
|M9^ M that tttide is then seJd for, without naming aomt 
llacet there* is no possible means of aacertaimpi^ what sum 
rtwuJd bepaid; .and the. |u)iiMral«ra were the. persona ebosen to 

. The frtpcifkM^ uf^B ^hich these vulea ese ibunded, apply 
fMh ei|p|l.foree to rqpnrta made under rules of thn Court, in 
fim^ ^>the law of .this£i9te, as .to common awards. , I am 

- 3 L . 



Kingston w. Kfncaid et aL 

Amiier, thaif tf» tk^ kftMk There is, I admh^ an impoflMl 
iMiNrehce bifcween them, as to the means of olytanfhi^ ii ifa i iii a* 
iJBOfn of Cli« gtounda fm whteh the arbitrators |>tQcssded< la 
tlie ibffD^r, the referees may be called ' upott to diacloss 
ftcts ofioD which they formed their opimMm'; whereas, w 
latter, this caBnot' be done at law ; and even in equity, ^kt af%t- 
trators may demur to a bill to compel them to discover tlic 
frouads on wluch they made their award. We have examined 
iti the priatied cases^ adjudged ia the superior .Cctarts of this 
StatC) upon the subject of these reports, made uadelp roles «f 
Couft; and cannot find a single instance, in which tile r efetcts 
have been ealled ttpoa to explidB, what, ipj^oii'thcr htt of tte 
report, appeared vague and uneertimi'. In Yobng vs. Iteubeat 
J075 was reported to be due on a c«taia day, piior to tbemees* 
tag of the referees, with interest on the same. But, the report 
was set askle for uncertainty, aithoagh the referees mtist faava 
taesAtf that it was doe *o« the day the repan was mUS) mai 
might so have explained it, had they been called upoow Ptt^ 
haps the Court might, withaat going^too^fer, havo so comtitMd 
the report; but, it pfo?^s, that a ttmedj for the mistake waS 
aot sought for in the explsiMitioD^f tfa^ referees. ' In Browfl 
w». Scott, where five, several actions were refeiPred, and oalf 
Me report made, the majority of the Cotat were of 'afAiio% 
Aat the agl^eement'of reference, amounted to a conscMatida 
ef ' idl the actions, and, ea that accouqit, fwnfirmed the report; 
Imr, k seeitos never to have occurred to eitlmr.df the judges, ta 
eare the mistake -by examiaing the refere^ with a view SI 
tf vide the sum, as was proposed -by the counsbL In the eiSl 
ef Hart and James, the report was set aside^' because Hie le*- 
ferees had consolidated two actiofis, aad the Courti refitted U 
receive a supplementary repoK, which tiie referees ftad v<»hta^ 
tarily given, stating hbw mtieh was due in oaeacllea, and how 
iDuch in the other. Tha i^ection ta tha last teperty aa-biiaf 
Irregular aad ejp purie^ was, we think,', a saK^ cn)ej but, etfH 
•lara wfes no aftsttm «a tfura tiM mUMt^ Ibf ataaiM^f IM 


■ u| i ^ 1 ■ ! ■! ! > §v r . ■' ■ ■■■>■■ > ■ ■■ i w tw— — I— pi 

Kingston sv. KincaidetaL 

KJM*te ««q^f *■(» if oiie of the pMiiikte 
f ilUcHc «ett te npy be con»pette4 b|f MEcbmeBt l» do it| 
frt« tb»t it is tm objectaon to em^riug «|> yaidgmm^ lor tiii 
ilboib lApt the foopcdy iar each pMy ia aot the evae. The 

'^i C^mt eteo dfleMrined, ^ett ui geiiefl«l» thcf iro«M tee thai 

'fhe, report wm efceeuloi, egreeeble to the nteitt of 'tie re^ 

^- feree»,Ai)4«bejiMtke.of<Aec«se* 

;, That Court, possessing^ m nixed jurisdiction of law aodoqtib' 

tpi migf^ rmfpmpvAfi nspose aqvitabletems on Ite paitiea; 
«M «o W09M t^is Otmvli eiter on its law* or eqiiitf 'eiie» whore 
a iirop^^easo *iN^ 4Mr iiiloq>^«ii*Mi was madeoat. But, mo 
fooatioii avose in ^t easi» lyraa the ferm of the repoet. 
. Ummoit^M iBWalirffa» th«|, V ^ho* ^^^^ ftbore laid down; 
t ti fih am Ptft' nippiaid^ hlityiA) the contrary, aami to be aaae* 

paasaini to he inqolaady whether the objections to the preaeM 
mifwrh Mffi mli fasnd»^ or ao»> 

. T4ii^ r f faa ee s reseiye Iho q a o s^fa fc reapodAng pro^rlsions de# 
1^01^ or pajFBienta lamioto Ueary KlngatoflC^ lor the decisioa 
glthiaCpM^ Itis^okfectedithattiieaflnoiUBlyOrvalttefOftliesa 
ftm^mm J* ^Wj^ iseeertakiod ; nor ia it stat^, «hi« thejr weai. 
Miv^WtA' U li» •u^mi90ion does not refer these soIjsMb if 
aMMyWif ia the«#^ttrt, then this part of the report ise^aeep^ 
*dM04»f iiKJlhor eljloliliwat equrftp Aaal) 1 #. thai it a«ibMls ea 
asWtegatinn rfjthc » powarp^ conMed hpabo partfea^so jddgos 
i(t Ubiir ewiSfChnm^liVi »;ntfcnn» to whoas the safest was aot 
phaiiMidv difttp flh* fOoMMoSfk was agiwad^^ the sabntiil 
#mt ihaa j» e^ae «h# «eferoaa ahoald give, or %1Iqw, credit &» 
iiWi».:ftfM#Ms 'dri&l^^ lUikgatoD, iten she said 

i iP i ii g hi iMM hii ^ s f l ipiat J»Hba d«aiaia»<af ite €e«»caidisthoi^ 
Wjni M) <l» iWiaaMii.qmii of the sno^^hr aaaae waa a leg|d 

«»l(»^hM(tlV*i^#«Hili3iNte*' rho siiaiaaM jiaamring^^a 
pdniai waat ttai tho^siifasa shswM paaa aft aphakitin thesah* 

* » 

• > 


« * 


^mii ■ - ■ 'I'm ft .1 1 Vii 

Kingston tv. Rincaid et aH 


jecft, and sIicniM ascertain lhl» amoyfit of the Wedit^ whidi t]ie|r 
#ere i».fldlD«r) in* caae^ttey thought it ought t» Iw dMred; anil- 
ject, homereti to tkte dechioirof this Coait, whether it wat a 
l6gal pafVHcnty and Vhatber Nought, or ought not to bavebeatt 
allowed. But the referees did not decide, whether tila was i 
proper credit; Awni a miaapprelienikMi, I piJisaiiiilOy or tte flieas* 
ing of the gabroiasion, from which l^eyseem to have sapposed) * 
that this subject was exclusively reaerred fombf o^nioofkftiie 

As to the payment made to Henry Kingston, ^le p HtodflWi 
coiUnseJ wore candid enough to aokhcMedge, titoft tids part of 
tbe report cannot be supported $ nid ^ core the error, offered 
1t> release fo qinch of the snaa «wttvdod the ^lakitiflr, aa th^ 
uy tbese paymento aniowit ta ' But, in order^o ascoMlk-tho 
anm ao to be 'released, we ^nai 'vely upon the explanatibna of 
tile relereeai which the pfteciplea bdbre laid down^ ato laii m if 
od to reprobate. 

The latter part of the report ia still aioiw4jLti^p(tonaigri, t^ 
die ground of unctttaintyf lieeattse, etreif the referees them- , 
selves have come tm no decMon dn tfto subject, wbieb coutf 
assiat the Coart, In aacertalnhtg the credit, to wMch the 60^ 
Jeodant Is to be proTislDnally entitled. ItilBdareai that a bM 
of etchange drawn by Henry Kingston, for i^^O stMlhig, «n 
doraod by the ptcitttiff; with damages and"* interest, fa l^ ho d^^ 
ineted fcm tbo sum reporiffd 4ue to the plaintHP, eo soon li 
Iho shid bin is ddivoM trfi to the phdntlff. I^»w, we ysmm0 
discovor, kpm the report, wfiethet^ thil ir a^bW wMeh endtlcl 
ttie holder to twenty per cent:,* or to ati^ otiier fibe ofdamageai 
fixed by law, or^to intiarest. OM the contrary, flf ap^ehrsf fiwia 
the examination 6f the referees, thait both bt^ unceitidH, ait# 
laigfafc^epond Qp«» iitiim»awnies,iPOfcpefctihy ifhlch, dHhraH 
opinions 'might be fenned* Were judgment entered upon iMi 
report, and afaould the bttl, M somo'tatefru ddy, be d^rero d kfH 
I ^(noif not h*if Moqvifon could laauoi oir%l whit 

■ I 

'4PP^Mp' ^•S^WWw ••^W" 


■■'■■■■ ' , ■ !■ ■ " ' 

. KingrtOD tv*.KincMdet«L 

^ » ■ ■ ■ ■ ■■ ' i» 

CMvt oooM enCbrcat If awnclitimi tiw lAr&miance of tlui 

T^m-flk wA Stb exceptions to th9 conduct of the .refereea» 
iB wmmMb^ Uim tbii^ refenMS we fot ijyipported Sy thei eri* 
4e^pe; jnaamuchaa it appearsy that after .every d|»rt to pro- 
duce fdJa^ippe Af opimoD, betwaoD that third referee, and 
die tn^o vho> sigvied the report, the former withdrew, and de^ 
dared, that it would he niniaiceasaty'for him to be ugsdn called 
to nM€t an the anlqect. 

** . W«ipMMaafing any tiung upon the merits of the casoi that 
-we may faal eiinaWaa parfedly at liberty^ should this cause, h^ 
tlMl.hafi)ra#>jMyk . ' . 



•m > 


• • 

'. .V 


, I806. 

|*ncipal, cuimt commute 
\mf tfiA mcfc openSjoti of 
EiMit a? Ite bka pud lai 
Stale irtte ttteiwT M 

^ icV to die bett o{ h* 
tis orden be positiTe, be 
[let obsemnee of tbeib 
Ed the bat Bode of et»- . 

t received notice of da* 
gn m*de j but he neither 
riAer, he refused taking 
ftdaM tint be would mU 
MtfaMAe-pWntiSbMi ' 
Jt bMud to>ecaipe (ha 
pot >4*Gtk » tkM tat 

tuMe ttat term, (o) 







IfiAgslMI «». B3lioAid tH wk 

tkm pgtocipalt pMbu, which arose in ilM etuse; the. j^tilkvlw 

fMrti m^wMA Ukmv {ibintB HbtiNI)^#III to^oikMl in ihtNiIiarge. 

- Ti« ^miC^ ^pillwi KingiNxHif a ttHiMnAtfiit of MilidclfarMii^ 

.MmMf 17^, seft^^ oflU ^b$6eli) tlie f^n^mi the £&Mr, te 

vKrtittlio^by inMi tfli^eu^ ondcr th^ imtingvflitfQ^ of hi^ bvothef 

Wetiry^ the MifHra-ettgO)^ who was ifi^ssted mnh certain j>^ireni^ 

,m %9 tbe destinatlW of h^Mfe of lhem> after the s«ie of tb^ e'ar^ 

giftHK . thoty Slni^onf eH^r fottiiif^ to Ikirbttdoes, not hdiig 

f&nUm^ to^ hii0 ki» ^fmfp$»j wUeh coasisied of prsvisioiii^ 

iMi^t to Mu^KAtfMt mi hoi mMM^ thefe, setkt the Etna to the 

<Mhiida»la» mJm^kftf m #hem he wroie seveml tettet%'eeB* 

tuning orders^ re9t>eetia^ the i^oyage) upon wiAciPubt vu^ to 

.be sent, tfom theDce.^ Thefiiist and great qoestipn waS} whe- 

Hmt the 4eftiideat%*bf seiwfing hir te Neir-Vopk, with a cargo 

e|i4tol||fily<eMii|pM§ n^^Mi^ iieMens theft the ^Mntiffi con* 

§KHt9tM^w0i$tUBkt'^ ^Ae eHlue giiNli te^ ihMi* 

. The pMMMf, irfter the thove trafleeeiiett had terfluneied^ 

fgK^m^k pdwer of atteteey lo^ George KinghorM ef tenaica, to 

cvHect Mkk the M(enilatit», a balance wluoh be elanned of 

IhciiWi with flM iiewers to compromise and e^mpoiied^ iC& Ih 

Mai might «eeni^)ght« Wishing, afterward^ W^iae him dhi^ 

^Ht ligih li d ants arbitrated, and that the saM Oeorfie 

shoilkl act as an arbitrator on his fttrt^ hii'wrele «e 

i,t^aipidsthig hifli to substitute Henry Kiogsteft^ee his, thh 

ffadnAfs, eiiomey, in order that he, R h%hhi% *iigbi he^ree 

itam stt «K^ectl0i. TMs |ras accordingly done. On^lh* I0th^ 

MthtW iaeief ShBteaiber lM6\^h epikiMlVwhai ef ferceta^ 

si e i i e K i t h^ ^MMm , egnhist 4towry^l^ngeton» UbtfC they aotd 

.i><ld«rpniimh»M»tj»thc MMunt of #hif ' St. «4j, and on the 

fitf rf thsFeiai»nwMith|^e ihaftwihjllw gees itoiry magetoo a 

»ee< i> l ftr that ^aw»',iir*i amm^'ipiAM^ the^shpr.d «ciedsi «ad 

htt'tiM shoM dhjp, H|»iy liyuh g««MbeidiAeidflM ei«tei|* 

m^mm M. M multed «t^hli»»4N» hsee«ni.of ihe plaoiiiK 

4M PSMpitfrjUVAIIlAl 


*nm wtcanA q/UmS^k im» .wNflHi' 1^ i«n -wm 
charge ttfttiist the plaiauff. . 

When tlM EUia i«l<inie4 t» lilew-T«fht 9^ bro ^ gM in • 
.puxd of Hif<u^9 w Accdonl of Ijbe pliuaM^ wUcb wasMli «t • 
xonudetable kM»» sod tbe thM ipieatfon mc, wMher tlm i^p 
shottkr be fixed ett the filaintifi; or should be heme faf die dc^ 
fendaDts. On the pert of the fonaerf it #as aqiuedy that iJm 
•hipmcot warn unaiithorized- Oa thMt of jTl^Jatter^ that, ^Am. 
'the plaintiff bad notice of .jity be faaiaiAf r^^i^iywed h» riiipwn 
that it vaa made^ but did not object tt^iU Hitttt bflP 4ft}»«Afer> 
wards, when be wrote to the detedanti^ that be aboald aoo 
tbem, for their acGou^it. Thn riijin nai nr p i n rl by^ Mr lag a i 

aoli for plaintiff, and Rawleaa4 Ciibaeo fcr defead^wMab 

'' ' • 

WABBtJ^TOK /• di«sed the jvqr* To nl ^ caae ef 
the seeond igiaation at .once, 4t ^ia only naijifnmffy to. ebaan% 
that all the powers coMuauvkated to^K lni^boqi».b|stb» jat>>M< 
attomejr, were transferred to Heor^ Kingsteot bp ^le auharttat 
tiop. That Kioghom had an authority 4o ^ake g^oda from Ilia 
defendants, in disdnrge of their debt to tbo plaintitf s and conik 
aequeatlf » Heqrj Kingston had the same ai|tb|Mi^* B«i an 
attorney aetlNi^iaed to receive a debt, due to bis pwna^ntj 
not comasifte that debt, for one due from biiiotf to the 
by the mere operation of exchanging we for the iKber.. Up 
debtor cannot s^ that be has paid bii debt to the attmmry, Jbf 
diowing an agre c rttan t of the ationiey, to credit the 4«biDivaii4 
debit hu\aalf with the amount of whjit be himiflf owea. Frona 
the bill af parcels, k.would appeor, thpt tbaao fjOPHWlnf ^r*** 
aold to Homry Kingston^ en the iftb, ^9lb,ipr 8lat.SepMafbi4^ 
in his indiTidMl capadty. Bat two d(yr% aftffuwxlsy tba par» 
ties seem to ha?e jMm^ tD^^aiitlo lha| ^MPWwkidi tie ^pp 
fcndaau ba4 agijnst tbe'altoiiiv, bf pbaDguig it (o tte idain|)f« 
K tbe^ tw n aac t ioni vmn. ipfMinie» than) i^aaorAnc^in tkn 
iboTe. princi]^!^ llie,dafain ia iQadmis^i)^ ^Bnt, i^ in tQPli^ 
the wbole fonn^ bnl mm iHnvntMn»««n4 it wns 

"* Kiagflpn ft; Kiacttd et al. ' 

tbip UwMdi»<w»M «co»iHM of tbe {d^fotifi; then .lie ip 
koHMl ^r it 'MUm fca woiiid te. cdnplelely estakUihedt tr 
9mP^ m % depniiiiiini 4i he hsd fixed tbe piHociee dif , «ben euck 
egreeaent wf» wwidti aikd it appeared lo have been jit tiie time 
iie «i)e was iiuiie» or he fcut * But, ei he efieAta «f it^ ees}Mi»> 
|P9 ii9e& iiwfte ia Sqptnadier gemeeeJlf » end it appears^ freu 
^% two recei|it% tdHit s«ch an agreeoient sraamade en the Md 
ef S^tember, tw 4iye alter the aale ; I ehali leave it to the 
j^njMo idlrt whei^r they eve satisfied, that the agreemeiit wtte 
fnde he&Mreit er at the liaa^ of «i|le. 

The firsMi th»iia|iwattpii questi^s aad ie tiie outsell I luf 

idevn the Whumf . piioei|ilsft» Ao agents if a dlacietioo be 

^ l^veB hioi^ is bound to act to the best of his judgmestf ^ for the 

^Iwoafit of his eiiii>kiyer. If the orders he recelres be pesitiye^ 

, be iBMt ei&her reftise to aety or Iwi 1^ bo«iid to a 8trk> ohserrance 

ef Item. Ho ae iM to eKfesase Ids ^tm judgment, but as to 

tM hMlinbde ef eMt:«C^f 4he ordersv aceotfdiiig io t^ terms 

eC thesis Oik.the etjfcr h«Bd> if the orders he anhipiouely ex* 

y OiPi s d i thr cmatttwfi» most be tahe» tum strpnylf i^;aiii«t 

. idmy who has been gtiiky of the ambiguity. 

it h #tsfai hi this caee, that at the time Heorf Kinfstoojdft 
4i»i>ri<^ ehaiiged #lth these vessels, the phdatiff had>i defir 
as to their ulterior destinatioo. Hck s^s ia his iii^ 
an extract from which was enclosed kfhkmry Kings* 
mh, to^ '>he defeodaots, on the 10th October I799, ^ will be 
jmnftw mmtieswd; that, if Henry Kingston afaeoM not be aUe 
isiAtt both shifsOy he waa to determine to tahe a good freight 
1^ Ao SUa%.«KL her cftgo consigned to^e plaiiitU^ if sent 
tikMd|pde^ieifer40 ship a few hogsheads of sugar and some 
id ibor Jo lioodfmsi to load with logwood and ma«> 
r, end thOjui^ PhiiadtlpMaj or if )ale jtf» thoiseason, to 
After whkhi^ h^ gbres^ a.sheteh of the 6iod» to Jie 
%m$hf^ il m puwhaemg t h o s e e» ticl e » imd ttan probable p(ri«e 
eC thena. He also speaks^ i» |he>seiM kHMtt of instruction^ jof 
th» Winlw ^ceottlii fr»»,IhWI<Ai M UifFPOok^ Vhm 


4M ffEMHtYM^AinA, 

I ■■ < I » ■' H '■ ■ I II ■ 

•yower of d iicWin t opom thcH^ iMihi i i i uymgiH j fi 
Umxrf IjiigfltDn, andtivi oomiiiuMcaiMi lo Ae dtfieadi 

After HevSy Kin^oo left Aoieriea, we loee Mgbt off •tiie 
]lleinHff» who never ^gmm ep f ow iipo» ihe eiAgey until the>4»- 
I wi dMU had edofiled xht course wtfek i* complained oi^ 
«fter H WM too late lor him to ptmkM k. Henry Kingaten 
then the effective men; and aH our attention mfiat4>o dnnrn to 
the lettera, Written 'by him, to Ihe dofeoteito. 

On the ad September ITMi, he writet to 4efend«ita, thai Im 
shall probably send the Elisa to Hon4oioa,^«nd tbai poeaihlf 
the mof call at Jamaica, and their^)Hdngyiif be'aakod. On the 
STth, Henry Kingston irriteB to Mend«nt9» dmt he shall aeM 
her to them in a few dnys, «n4*thnt from Kingston, they aee U 
despatch her to Hondoras. Oa the 9th October, ho adyaily 
•ends her, and desires thens, out of ceKain bilk, whkh he ea^ 
closes, lo reeerve enoogh to complete her loodaig at liewiln 
fas, an*deaiepa Uiem to lose no thae in despalichhig Iwrp aai 
to give them a cotvception of his brother^ Men •f^J^ 6oy vo)^ 
«j^, he say^ he ciM^loees them an exumct'Aism hie bmkcr^ 
bstructions of the ^Oth July, in which be si^ ahae'<^f 4te 
Sliea and Ae*other vessel should not be filM, he^ Hewy 
Kingiton^ ia to detmtnine to take a good freight fiv Ike fiHm 
if offered, the cargo to be consigned to the pkdntil^ if aiiecfe» 
ttums to Philadelphia ; or to ship a few hogsheads of 
rum, and send her to Honduras, to load with logwood nadi 
hogany, fer PhHadelphia, or if late in the season, lor 
er to Liircvpool. Forgetting to enclose the extmeti. Heuf 
Kingston,' on the next day, writes anoliieP'lettei^«to th^ 
ants in whleh it is enclosed. In this letterho 
directions about the voyage to Honduras, and then 
I cafi thhA of noolter eliglhte veynge, eheuM Jioo heMhie* 
procure a good freight fcrthe<BllEa; direct bach to .P*i^ii>i> 
Mte) pmicdiarly, if yon eao'tnAueBcelho eotislgnmem^^o mf 
hrothei', I doubt n^, he would prefer it." 
' ft it liad Aot i>eet» %» Mi laM^«etfle«ee, (hffro cMM nef 


OCTOaiUriBftMi itoe. • 4;» 

• d#^, Hit'llHMi^ ^ rf—» *ti had, ftit%dteniithr6^ MMf 
vM^ botfMi- U Mnd'lbir to Hondufini ^hm leCNft «! tins. STtlr 
9i|HMi^r, 9tli .OctfoDor/ami tte/tmt ^vt of tlm letftt, U»A- 
11^ their hatids^ a« to CMi ain|^ f^agv- The latter pch^ URw 
lilftl,1lmD^ it is tnie, biit to iriMut WoM? Tlie t9tm\ was lo te 
staMa 4l0O4iuhi«, to an fraght ^e./^ftlAMr^^lMi; yet tM dlfc^ 
feadanta M ttwfaer. Hov do th^jr excin|6 themselves I Thtif 
mf • th^ the veseii lin[d'Q«|ttafa irem unfit hr the ba)r vofAge^ 
lltat tk^ deiftaiid fer dye w^iMs wae gfesAy aii^ that thef ha(l 
McQ hi pcice.; thai thef dU«at ae^d "her ta' Philadelphia, UK* 
cause she uTaa too iktm te*the aeaaoii* ^taswer : The' dttfMt' .« 
aate had no choice^ hlit to eortvaee' one of the aktstaatiths. 
The only scope for the exercise of their jtidgment; 'Iras, whe*' 
Iher the bay voyage, or tlMt te Philadelphia, ^^ to be j^r<<fe1^ 
red ?•* It Yas for them is weigh th0hd««nia||e# end dlsedvAttta-^^ 
gee of bo*y aad then to cheae^ the i*ost eKgMh. If it ^s too 
lale to eotae to PtiiMifelplia, it iras a eoa<3al|^ teasdti feif 
sMdiBf haei^ Haiiduiae. If a man is botrndto do one ef t^ 
things, and aae is r ead s red impossiUe by the ad: of Ood, h^ 
lMat;da M t>ther. He cannot excuie himself by d^g a thlHl 
tUirgi alrich ha b net authorized to do. He ^ad «» right td^ 
dmisH tet» hie offders, from an opinion, however 4reil Ibaaded^ 
tim the bay voyage would not answer. Of tbtSf the plaim^ff 
#|e entitled to he the judge. 

-M/rlt is said, that the defendsnti, being -r^^rred to tM 
aattaet of the plaintiff's instructions enclosed m the letter of tlf# 
l4i^o( Octobsry were at liberty to govern tftedisefves' by that 
^fttiaci.. Ttf'thie, there are conclusive answers. The first t8,4hat 
mhf ana exyaassly lafbtfed to that extroA, not to give a view 
of the plaintiff's general, plans for the destipation opff ^ds vessel, 
(wMah^'had.thsit been the cake, would have been an important 
part' of the defendants' defence^) but, to give the plaintiff's 
ideas of the day voyage ; and, dbnsequently, the reference goes 
to strengthen the argument, that this was the great and' pri« . 
mary voyage intended, find the return voyage to the United 

' • • • 


-- - >-' — — ' i f i ■ * I II 

KingsfeOR m. Kineiid «t iL 

i^Biidaii^ timMdvest A<^ not undenttiii the platetUrs, or H. 
JUagstm*-* ▼iews. FoTvia flMir letter 9F tbe !t6th Octob«r» t» 
tbe plakitiff; speaking ef H. Xji)g8ton*s letter of the Wl^ 
wd the eaeiMet eiictoaad, they «by, tha^ tfaey understand the 
plainciff's wishes to be, that they are to send the veasel to Hon- 
duras) provided a freight back, e^M^igntd t9 the filamiif, can- 
not be obtained. Yet, they nei^er send her to Honduras^ tm 
If hiladelphiay per did she -come oMsigBed to the piaxntiff. Yott 
ere the proper jildges of the amouiif ef daM^es sustained hy 
. tile pteiHtiff^ if any vere sustained, by this broach of orders. 
Ad to the third pouij^ respeodng the loss on the sugars, it b 
too plain to be argued. It is net Qccessary for the plamtiff to 
diow, tiiat defeqdanta vere not* forbidden to ship them on hie 
account; the defeadentaJiftMt prove, that they were ordered. 
This is not "preenxded. Bmt^ it wm argued, that the plaintiff 
4id not ebfeet«o Che ehipnentt in thdfeet inataneer Answers 
he was nqt oUiged te^do so. He had a fifht to deKbente ; and, 
t}iou^ his fim t^Her seenss like a tscit aci)uies««nce^ yet, in 
fi^ut days ^e>S ^ expressly refused to receiTO them on hie 
own accomt 1 dnd it is probable, that both letters #ere f^^ 
ceived» at ^r libout the same time. The plaintUF has a s tr o ng 
iieason for contending, ^at his apparent acquiescence hi hie 
first letter, should not bmd him, viz. that, having comndtfeii 
the manageiirem end deetination of his vessels to H. iCtngstos, 
tken«in the West Indies, he could not at first tell Ikow iar IRI 
might ha^ sanctioned this shipment. Bu%^ within four dtys, 
bnving heard from him, or, without doing so, he detenbinedi 
at. all events, tp rciAse. The loss, therefore,'inust be borne 

' \»y defendaaU. 

r^rdict for fiMni^. 




»^ ^ ^ 

Biknr c*. GiBagli^r. 


* • 


When th^ drawer <tf a bill of ezcbai|g;e hM no fiaids in the hands of the ' 
dmwee, neither protest nor notice of no«-«cceptuice or non-pajrmi^ 

* to the drawer, is nec^ssaiy to enable the payee to recover. 
Ttie payee Bwstdttilf state Ait Ac. bm was p t^ te sead ^ 

* ait iMHMltenfcenlwnto jfmmk % becsoae'thedMprer had no fia^ ai 
taH<a.tMW tb| bai^^f# «nlMiitt can only betii^ 

apocaal deamnciu 
Where the drawer had no funds ip th« hands ef the d]»wec^ an action ina» 
be brought by the holder^ upon the biB^belbre the time it would l>e pay- 
able, )f it had been accepted, ft aigr be brought immediately on'non* 

T^HIS acliMi ^iB kMllhittli»«o Fioiftir tke unomt of a bill of 
exchange ^ J9f 4 tteiiuigy ^rawn bf the defendant on a meve 
chant in Llr«rpOoly in farour of the plaintiJI^ with interest from 
the ^deu^ It. The drawer, having no iumii jn'the hands of^ 
the Arawe^ hcceptance of the bill was refused ; and) to avo^ 
the liBgal' consequence of a protest, to fix upon the drawer pay- 
ment ^ dtmages, which, by an agreement between ^raw«r and 
payee, were not to be demanded, the bill was returned without 
bM&g protested, this agreeanent haraig been eoaMiHinicate4 
If the Msadaat to the drawee. Thia action was broufht be- 
lb»« tibe .time fa* payment by the drawee would hare afriV1M^ 
\mi\A «eaeftod the bOl. 

Swing, liMP the fM^^^ stated, first, that where the drawer 
las no fandi in the hands M the dr«#ee, neither protest, nor 
pecice to the drawer, is nWciisry to^ ensM tiie payee to reco- 
.ftr. 1 T. Rep. 7U. 410. flfidin, 717. « Idfui, 839. Plam- ' 
tilT must either state that the MB was piMSMid, or show that 
"It was not incumbent on hmi t»' p t flt s st y at, that the drawj^ 
had no effects in the hands ef the dnrRree ; but, the omission 



■■ # ■ ■■■■ 

Bthkcr ev. GtH^jfcitB 

can only be taken advantage of by special demorref. I Salk. 
131. 1 Sh#w. 135. Doug. 684. N. U4. Not even neces* 
aary to present it for acceptance. Chktyt 68. 3 H. Btacka. 
336, and post. 

3d. That the actidtt waa- iMt brtmgkt prematurely. It may 
be commenced immediately oh nou*acceptance. S Barr. 1687.^ 
Doug. $5, 3 East. 481. Chitty, 64. 100. These points were 
admitted by Mr. Dallas for the defendant) who stated the case 
to be, that the defendant was indet^^d to ona t^ibliet of New 
Orleans, who agaiA was indebted to llie plakniff lUbat, by tlid 
CRMTespoodeacc between Niblie aad tbe pltftttiH^ it .apfitarad, 
that thedefendant wsBto pay to the plaintiff, what he 
Hiblie. In August, 1804, Kibtie drew an order on the defend- 
ant for 500 dollars) in favbu;' of one Vertner, at sixty days, 
which was accepted. This bill was drawn in December, after- 
wards. He contended, that the plaintiff was %o be conv^ered 
as the agent <of NibUei an^ aa'tbe WH w«i draifa Gov tbe whole 
siun^ which had been du#^ from d^fendaiit to Nihiiey without 
crediting the above 500 dollars, the defendai^ wfs entitled to a 
er^it £ar that auess the suit being between the ordinal |Mirtiea 
to the bill. -N • 

W^SNIJrQTOJV'y y., charged the jury. The argynaeat, 
founded pa tbe^klea of the plainCiff being the agent of NiUiei 
18 ingeniottSy and would be sound, H the case wo«ld bev it wAw 
If the plaiotiff had not been the creditor of NihKet we msgto 
have considered bias as his agent. But^ as the case iS| it is -wm* 
thing more than a promise by the defendant, 4» pKf I0'th# 
plainttfV a creditor of NiUie, a debt d«oid lum by Niblife,end 
the bill is evidence of tbia promiie- k hi of no cep ee qeepc 8i^ 
if the defendant, ioltead-of havjuf jeid a part, had previooalf 
discharged the wkale of his debt to NiMie ; he is still bound «e 
fttlil Us engagHMpt to the pfeaetiA 

• F§r4tm/$r pjaint^^ for hh 9h9U dtmtmd.- 


< OCHOMBI 4RIEIi» M06. 4M 

1^»— P>— — > I I. ■ ^ — ^ ....I ..I ■ I ■■ M^^— — |W^— — ^ 

lli^ViiiAMiStirteaM. MigiD. 

Ths UiriTBD St4tes v«. Maoill/ 

. the bigh MM4 t^«toipd^lMi|IM»lAWMtCq» Vteii(M( thelttidb 
iMd tU ftioke in t|i0 Wen ttff GHI^.Ihns^ «pd th^^ 

, wi Cfl|i^ Fruigois. The <^ coAint pooved was this Jut 

The law of the United States declares, that murder committed on the high 
seasi shall be tried in thte distriot where the oflTender is apprehended, or 
into which he is drat Moaglkt ; and thereibre the Oircalt Court ha^Jur^ 
oiCtlott oircr this oMe^ aririi^ nildcv the nrtikotily oinhc UiAM DIMAi* 

The Legialaturo^ flMking iM'^f AMchM^a t«l%ittiMMuii%iMistlM'flM 
certa^ad by the CoomwM^ lAv\ %«iKt tbiFcfcw^^thia drt l fiiiin vH wy r db i, 
mutt be t»keo from that codc^ 

To constitute the ofTence if mmtdcr^ i«d^ th« law of t^ UuiWdStateey^ 
. cognizable in the Circuit Court of the United Stat«%. not only the iiroke^ 


but the deaih^ must happen on the Ugh seas. ' 

The rightoNkedeibndanlte chaltege liR Jtoun, in ttdi dtoe, it Uhutted to 

7lii; prisoVMr wft» indicted for woidttr. TtoftitlcMQife^lMi 
tif* itvolt^ todf th« d«fttk on the high ^Mas. The Moond, in* thd 
hJK^Mi of Cape Ftaiif ois. The third, the Btnoke l» ilie h^iren el 
Cepe Franf eia» and* the deaths on land, in Cepe Flmifeis. The 
. evidence proved the huit eeuM, b«t aoe tto fifat andeeceMl. 

Mr. IngeraoUand Mr. Reedofajeeted to the JBrigdJttbw el the 
OtHM. The Circuit Court, under the V»h seotiMref^ie On- 
iMal Uw» NtoI. p. 53, paaaed April SO ir90| lomn 
of tonr de c a ( geeamkted o» the high eeaa. But te 
SBordery there must be a d^th, ae wellee a itiioliie* The deadly 
eonsummatea the offence. The person ia murdered wkert he 
mms TilUhedeath,theoffMNlMail)ramMtai9ieiMr, 11^ 
P^ C. 435, 436, 437. 4 Rep.' ^et"* t^HileV^^^ 9M. 3 HunHu 
3M. Laach, Cr. I^. 723. 48t. 4 ik^fe. €)eiA« SOS. 3 Rep. W. 
\ East's C. L. 36 5« I Lees. 9^0. tJr^.^flLdite.*' . 





The United Stifie» «t. Ma^U. 

Ddlms, for the plaintiffx By tbe comtitatjaDt C ^ Bgum In* 
power to define and pvnish jpiracies and ieleoie% cofmnitted 
on the high Ubm. By the 9d secdoa o( tbe 3th article» the jn- 
dicial p^wer pxtends to all caaes of admiralty and maritime ju- 
riadiction. The 1 3th aection of the Judicial Law, 1 toL p. Si| 
dcdarea^ that the Qrinit Qomt aMl have, cognjaanffff of all 
pffencea cognizable oiMier tbe anthettty of thc^ Umted Sottev 
except where it is otherwise prorided. , Where thm atiiike is at 
eea, and the dea;h in a foreign coantfy^ the Courts of this conn- 
try, accordiiij: to the civil iawy have cognizance^ and the ciril 
la\7 is the rule which governs the Admiralty Court* From 
kcQce, I infers though I can meet with up English caaea where 
th&A^mirfllty has uken cognka^oe of auch case; yet^ that it is 
of Admiralty JHi^^ctkm; a^ff ao» it is a crime puniahabie by 
the constitution! in the Courts of the United States^ and of 
course, in the Circuit Court ^ being an offence arising under the . 
authority of the United States. , 

3d. I adroit the EngU^ cases aa citedf but? they go upon the 
idka of venue ( whereas^ in cases of murders on the high sea^ 
Tenue is out oi the question^ and the reason of the doctrino 
heariag therO) is tfo foundatioii for its adoption here. T^ere is 
no law of- the United States, which dedareS) that the etioke 
and death must be in the same place. The eases in E n gl aD<t 
which take away the jurisdiction of the Admiralty Court,, where 
the deatkia not at aea« aciae under the Statute, passed since the 
Stntjnte of Richard. See East's C. L. 3 Inst. 48. 

It magr bea question, if the law at preaent does not give ju* 
ri|dktie> ior this case, to the Circuit Courts, as a mttlw of Ad« 
Bnraltyandcaaritimejuriadiction; whether Coagreaa, uade^the 
ODDstitution, can provide for it. . 

WASHIJ>^Q TWft /• The 1 Ith secti^m of the Criminal Law 
dedares, that inntder, eemmifterf on the high seas, shall be 
tHed in the district, whei^. ^e offender is apprehended, or into 
which he shall hoAiat htoil|^; and of course, in all such cases. 





ne United StMftM tpf. MagilL 

t&e Cfroiit CwK-lMt joriMlMtioii, bttog « case arfttllK under the 
i^uthority of the Vhltni SOttes. ''The Legialature mekiiig ut^ 
of a teefeidcal term^ wHlMfiit delobig ky we niiit ift^nlre, What, 
atftordifig to the Codhdob Law, confttitutet murder. It is tile 
ii>l> H fill mBng eff anothei^ witli imiam.. V dHMier, then, dte 
Ae High seas, ift eogalBabie heM^ It nm/t ^ a oite where there 
has been an unlawful killing on the high seas. But this cannot 
be. where the death, is at land. 

I should .be very sorri: indeed, if it iji bejrond the power of 
Congreaa, to pfOTide fertliis c!ase. But, certaiolf, it is other* 
wi*e,iftlief can define sBd'pUMlBhfiftioides oil the high seas; a 
stroke at sea» if followed bj death st land, may be declared fel^ 
ny, and the punishment .may be such, as Congress may direct. 
' Judge PeUr9 gave a separate and concurring opinion. 

Verdict for dtfendant. 

Kovb.-^<Ir cilftig the jniy to be seern^ the Court iafbmwd the defei^ 
ant's eomiBd^ this he epuld only dbllenge twenfy, as thhHs 
tieaed m thoAnt €teW Law, and is of ' 
which speskt of ebsflengei. laJohns' 
lis veswl^whioi^ was SMdesa offence by a isbssc]ueaiisw. W. 

m • 



• • 

»• . 




of Caimc «t« Alhrine. 

• I ■ • f .1 

Lessee ov Camac vm, Auuwinb. 

ineiK of leirt, aad the ylrfnrtff ia ^ectJMBt liaroy 

iion by a Aafler«yiiciai jNMMSMMReiii, tiie ddeadHit jiiid tbe^»Naat«ltiie 

debt and tbe costs, and obtained a rule to show cause why the posBCMipn 

diottld not be n-deliTered. 
The Court refused to intetfeie in this sommaiy way, but Idt tfie defendsai 

to Ills remedy on tiie equity side oT Uie Co«%i |Mr6raMy,|afiK psitieo 
- didnotagieeaitollManMHutof liori^ttoBb . 

J. HE leasee of Mr. Caoiac obtained a judg;ment in ejectment, 
against AUwine, upon a covenant o(.re-entry in a leasoi hr non* 
payment of rent, and was regularly put into possession, nnder 
an habere /acia^ /io99e$si9nem, 

, Hallowelly some days before, paid iQt<i Court, for hb ctteot, 
the tenantt all tbe ^arrearsof rent which he said were due, with 
Ibe cosu; and obtained a- rule to show cause, why the defendant 
should not hare the possession restored. . x 

Gibson now showed cause, and insisted, that the defendant had 
no remedy, but in equity. He stated, as an additional reason 
against an interference in this summary way ; that all .the i«nt 
due had not been paid, and that the defendant, after possessigtt 
delivered, had entered an^ violently pulled down some of the 

Hallowell admitted that in England, the Courts do not re- 
lieve after possession delivered; that they do so after judgment. 
Under Stat. 44. 3. if rents be paid in she months after judgment, 
equity may relieve. He cited 2 Stra. 900. 8 Mod. 345. 6 Bac. 

The CBurt {Peters absent,) refused to interfere in a summa* 

ry way; and said that the dispute, about what is due, would 

alone be conclusive, evei if it were otherwise proper, to relieve 

jn this way. 

Muk dkchargtdk 


OCTOftER TERM, 1606. 4ftr 

▼^igrlM ^ BrendL 

JEftiaactHAtoreeorerihebiilMiceof ftietUadaocounty and of certain bii^ 
€f exchange accepted by the defendant; the defendant offered to prord . 
that the plaintiff ^a intestHte acknowledged lumaelf to Se indebted to th^ 
defendant on ancrther aoe«iint» whidi included the settled aoeodntt and 
ttpimvliieh >kitger a<BW ri » iihadttetfaanliiitdMine4 wh><Aliieinte»> 
tflte timroiiiiiil to pft]r« Tk« Oontt aHoved the efidcsM to fco giren i as 
it waa Mt oiTeMd to affe^ the settled aocount, bQt4D eatibMiaokte 
independent of it» and wMch the plaintiff's intestate pfaaHScd to pagr« • 

,What will be deemed sufficient evidence to prore the loss of a ^gamaaar}^ 
note, so 1^ to pennit evidence of its contents to be given, (a) • ^ 

The jury wore swott, by coiwcttt Of the pattic«, to tty turd 
actions; one for the recovery of a balance, agreed to be due oA 
the 34th June 1792, by a Stated account; and the other, for thi 
amount of certain bills of exchange drawn by the defendant, ac* 
cepted and paid by the intestate of plaintiff. The plea chiefly^ \ 
relied on was, that of a set-off, of 100,000 lirres, which 'greatlf * 
exceeded the plaintiff's demand. In support of this plea the 
deft^ndant offered to prove, that at the time these transactions 
took place between the pMlies, Who were citizens of, and resi- 
dents in St. Domingo, and at the time of the settlement in June 
1792, the intestate aclinowledged himself to be indebted to the 
said defendant in 100,000 livres, on account of a purchase of land 

(«) In this case^ the fellowiag points were deddcdy whleh are ootstMi 
ia tike report >— 

tf the defendant has put in ievcMl pleas^ he mtf withdraw oam of tliaq% 
without leave, at any time. 

If there be a negative and al&mative pica* the plaintaff'a counsel most 
begin and conclude on the negative issue; snd the coiutoelferthe deAada|i^ 
In the aftinnative: but both most, in die algumtnt* eolillne fbwmMhm 
strictly to di« iMue diey are ^Bscttssing, IfT.. . *• ' « 



in St* Domhigo, from m Mr. Cardeomer, wiio htdwmgotd tUi 
debt to the defandflDt. Ttettheinteslitie sgrocd to psytbat 
sam MtooD as tecooMifdbBtldadiictiagdiercftoib tlielMhaice 
«r thair matcantile ac o oo fta, admitted to bt due by tlie atafted 

This waa objected to by PaDaa and Lofy, iir tht pfiindi^ 
as no OTidcnce to eatplauiy or aker the settled accotet, couid br 
irac^Ted) unless upon the ground of fraudy or mistdiLei and not 
in those cases, elsewhere than in equity. 

JE^ the Court. The staled account rahios only to the mi' 
aettled mercaatiie trai^aactidna between the |»ardaa» and an to 
tSiat, end enc e to espkdtt or contradict it would be improper. 
But the defendant offers, by way of set-off^ an independent cfadm 
Ibr a debt assigned to him, which was not included in the stated 
accoiintf but which, the intestate promised to pay, claiming 
only to deduct from it, the balance fisuod due by the aettled ac- 
count. Eridence to establiah thif EM;tt doea noti^aobite the rule 
above laid dqwn, and ia cleariy proper. * , 

The deCtndaht then offered to prove, that after the massacre 
at the Cape and at Jeremie, in 1793, the intostate and the de* 
fendant Aed, and arrived at Baltimore, where another settle- 
ment took place, and the intestate gave his note to tHe defiend^ 
ant, to pay the 100/>00 livres, with interesl^ after dedactinji 
48,000 livres, then found due to the plaintiff. That this note 
wasi in 1793, sent by the defendant, with a power of attorney, 
to a Mr# Berthier of Jeremie, to recover. 
;. This evidence was objected to, unless the defendant should 
first prove the toss, or destruction of the note. This promise, 
if madei waa at .Baltimore, and is therefore hatred by the Act of 
Limitations, and if so, the plaintiff may avail himself of it at the 

The defendant, to prove the loss, of the note given at Bdti- 
more, produced witoesses who stated, that most of the town of 
ifijp^amt and the Cape were burnt. The deposition of Berthier 
stated, that he had received sundry documents firom the defead^ 



OCTOBER Vtmiy IB06. 





snt ^to rMOfsrdfllMH mmI anongst others, tke prookiae of tbe 
intesUtto t6 p«f lOO^OOO livni; ttuit when he left St. Domingo, 
he deirretvl orer theee' ptpeie to Legros, en ettomey, to piur- 
pne.the chim, and that Legroe had bean aaaaaainaled. 
' Mf tke Court, This.eridente doea nctt sitflcicntlf eatabliah 
Of loss of tiie |M^^ The defendant aMght have pioeured 
better evUaace of it. He mighty byneemmianioB, have proved 
%hat became of Legioa' papers; wh e t h e r they were hnmt, 
or destroyed. Evidence hslb been g^ven, that when the negroes ' 
assassinated j|n hidMdnaly they genendly destroyed his paperS| 
and further,- that it was not safe, for any white person, to apply 
fiir papera belongh^ to any of the emigrant planters. But, 
certainly,' the fiite of Legros or his successor^ 9mAml the papers, . 
might have hecn piwed hy a commiaaiBn* W^as hvi 4kr thm^* 
house bnnft F EvMenee Os thia might suAce, wiHb the oChei' 
facts in the cait'se; 

Upon signifying this opinion, the defendant produced wit- 
nesses, wlio proved, that the papera of Legrps, after his death, 
pasaed lata 4he hands of Mr. Dallat an at»s ae y » who wa» 
massacred at the Cape, and tfaatUa papsm 

4!y sftr Court, ThiaJa auficieat. The dafandanl; mi^ now 
pfove tlie contented the note. 

Upon the etideoce given of the note,ihe idaiatil& safiered 
noaauita in both cases. 

% • 

• \ I 



of PhiElM m Wilioii. 

Lkisxb or Phium vt. Wxuov. 


Bjeetment ibr luidi fpagfMiik and west of the AJki^tmuj^wodCoaemwa^ 

If the w«>nnt for kadi be 1lneertul^ or if h be oeHiii^ tt^ 
pkoc^ nid befiwe tbe MBViQr ii i9ade» no tfaiad penioo faM ao9^ 
to Ibe land on wUeli te wmiBtisludi ev^ oK^eelMni to a tit^e •• de» 
rived ii done «waj. 

Tbe ■nryey gives notice to all fubaequent porrhairtu, and it ia only ancb 
who can complain. 8udi a survey could not affect the title of a^poeaB^ 
who hi tbe neanlime had aequired an indiuent tifle totiielaad* eitfierby 
w aiiaiit or setttcai eiiL 

tf Hia affMfor hM wawartiito the ainwrt of Urn hikb stiyH and lie 
kielMdas the wfaoieinone aurvqry nwyidi^t thehaandKiM of the diflessaa 
surveys it is ncrdun^ to 4M pcw)ii»how the wanaats aie approprieted, 
before the map of the surrey is retiimed to the Surveyor GeneiaL 

Quav.— What would be the effect of a settlement upon tbe title to kads 
oomprehended in another and adjoining jorvey, where the linea of the 

; kndcbiimedbytiie aeldeflientyhad not beeBtimoillsaoaBtotakepait 
of the Ind^ao a^jQnriag the aeukneot r 

jL HIB ejectment ia to recorer 400 acres of landi lying Bonb 
and west of the Ohia, AUeghaDy and Ccmewango. The plaui* 
lUF'a title was founded on an application ibr this land, on the 
3Sth of April) 171>3t by one Megee (in the name of R. Thonp* 
Boni) who sold to Wells and Morris: a warrant in the name of 
Richard Welh, for 400 acres, lying between Big and Little 
BcaTer'creekS|to include his improTements uid a survey dated 
in March 1795. The purchase money was paid tho 13th June, 
1794, and the warrant was entered, with the deputy surveyor of 
the district, in August 1794. In 1800, a small additional sum 
was paid. In Mkj 1795, a connected plat of this, together 
with a number of oilier adjoining tracts, surveyed at the same 
time, on other warrants, Jbr Wells and Morris and the Popula* 
tioiv Company ; was returned by the surveyor^ according to law, 




of Plu^ ct.' WU«m. 

totbe4Nnr«f6r6«MCil*««Ace. It appearei in eTideiice» thi* 
at tke tine wlMnthata aevefttl.vairianta, utt fior 400 acrea eacln 
wate aUrraftd, tfie^opttjr ttd noC ■p^taffiiile the tevend tracu 
%• tke jne^active wairi^tii; but after sanrejrnig and plottkig 
t|Mib m a general .map^ ttw Surveyor General made the ap* 
fnipfiatioQ) and allotted thte warrant of Richard Wells to the 
land in quettioo, which was proved to be in possession of the 
defisndant. It was pnvveo> that Megee had made improvements 
at a considerable distance from the land in dispute; bat that 
ncme were made on thsi hmd, either by him or Wells, at the! 
time the warrant issft^d, or for a long time afterwards. The 
plaintiff deduced a title regularly deri?ed from Wells. It ap- 
peared in evidence^ that ace6r£ng to common usage, in Ihb 
State, and the praetke of the laiid ofiee, the name of thi^ per* 
aon appeeriiig on the list of applications, i# always Cjonsiteei 
at the land oAce, as meuAy nqsnittal, and is strqck oi|t at th^ 
instance of the real sppUcant, whenever he. sells to a third per- 
son ; and the name of such thbrd person is inserted, ii^ his stead* 
This was done in the present instance. That it ia»also the ge» 
neral and unitem euatom, that when the purchsse money is 
paid, the warrant issues, and bears date as of the day of the ap- 
pBoatifan. The danger of making settlemenu on this part of 
. the cooAtry, from 1793 to 1796, was admitted by the defend* 
ant's coi^isel, as proTed in the cases of Huidekoper v^.Auma, 
and others; (a) evidence was ibo given bf the |>laintlff, that dur* 
Ing that period, there were no settlements in this coimtry, eai- 
ca|it j»lhe nrighhnurhood of forts; and that no pmdetft man 
svottld ka9n attempted it* 

The defilndant claimed by virtue of a settlement right in one 
Qvy, from jwfaom he deduced a title ; and he relied upon a nam« 
bar of depositions to prove, thet in 17»^| 1794, 1795, and 1796, 
he was seen upon the land, or about thirty or forty rods from 
4t,on4a tract claimed by, and sufveyed for the Popoladon Com« 
pany; (for on this point there wwi some contrariety in the 

(e) S^tmOe, page &0P. 





flfPhilqw w. WikcM. 

tiie weigiit at k Mng iii bmmt ^ bis 
^en^Mtbe adjouung^ tracts) thai lie ndiod aiid oommeim* 
c^n, girdled treea, hud bii bod- d^tea thaiet. kc. Saaeol 
1^ ■JttoiaaB ataled^ thait he raided t^ere, and 
keeph^ poaaesfiioB. It waa i»fpvied» howevw^ lifr 
Bcssesy that he lived w|th his fuoBf on the wontk 
Ohio» during all thia timey where he haUt a mill. Mo 
tory erideoce waa given of any thing like m permanent 
ment, until 1 796, if ao aoon. 

The objectiona to the plaintiff's tide veres lat^ that the 
diaae money not having been fully paid iip» tUl IttXS tiie 
cottld noti legally iaauo till then, and of cooem the aorvi^ 
Wbautborlxed. But if the aubaequcet paynaeet comkA 
itv it could ee^ do ao ftom the tisae Ike ineM|r wee ^eid 
fcre wbich, it ia admitted) an actual aetttoMM had 
by the defendant. The Sd aaetioe pf'tfae Ad of Sii AptO, irfS» 
dedaresy that the wairant amy' be graatedto the dppl kal » he 
paying the perefaaae mafiey apd Caes of eflicff which iei^liea a 
condition ; beaidea which, the lotb aectiei^ dedlaraa that ne 
watrant abiSi iaaue tiU the purchase moaey is pnid. 

3d.-That the warrant ia too uncertain ; ec, if .not ao, tint, by 
calling for Megee'a improvement, it called Joir a tract |v re* 
moved from the one in dispute; aind, thereCare, ooeM not ha 
surveyed on the land in contDovaray : and, fiuthem that the 
tract ahottid, on the survey, have been appmpriated to the wir- 
rant, and not left to the chamber operation of the aywefar. 

5d. That improvement rights, though unarc ee m an ied u M ier^ 
tual •ettUment^ are protected aganist wurnintn j ia arhirh tlw leart 
in not particukurly described, by the Act of the tsi- Apail» 1794. 

It was contended, that it appeared upon the etideaee, that 
Guy had made a^i attual aettlemeat, within the meamng of the 
Act of 1793, before thia land waa surveyed : that all iljasllp 
to Guy'a not having surveyed has aeCHemcnt right, wee u^. 
aweaed by the evidence, eridcli' pt^ved, that, at the thoaii tha 
surveyor waa aurveying the warrants of Wells and Morri% G«f 


OCTOftEft TEBM, 1806. 4^3 


Lewee of MSIitKi es* Wiboit. 

KfSfM«tf tib hitt to sti^e^ hb s«ttkaent right, and that lie t€* 

- Fm' «l^ plUmiff; )t #tft eontendM) AM ; thM not ereh ^M 
tfrtpn^i^liill^t of any abn waa irtade hy Gmj on this Iand> till 
•ffW/Bijff oil an adjoinhig tract; and that after the 8Ui*vef fbr 
.^PW^ hi^ could not extend his right, even if it had been ac- 
•MfhfiMiied irtth to actual settlement upon this land. Secondty ^ 
ft la j^sHftioy from the etidence, that art actual settlement, whhih 
fhe prflleipl^ laid dowii in the case of Balfour^s Lessee v«* 
M'cikl) (a) was fiot made, either upon this or the adjoining tracts 
tBl long Att the turv^ of the i^arrant, and the return of th6 
ccmnected plat of the Uods, aurvexed in March 1795. 

WjiS^JWTtW^ J.y c1iarg;ed the jury, and aftdr stating thi 
^laintifT^ titW, as above, proceeded : The first objection to the 
plaintiff's .tkle, is, tlMthe warrant issued, before tlie pftymeift..^ 
of the pterchaiie money. Without giting any opinion how the 
law wouM be^ If such were the case, it is sulficient to state, that 
tliough the warrant bears date when the application was filed, 
agreeiMe to the unifbtin custom of the land ofiice, in fact H 
issued on the day whefi the purchase money was' paid ; and tH^ , 
smin euffn paid in ISOO, was only the interest which accrued 
tH^ween the date of the application and the issuing of the war* 
rvnt ; and, consequently, the case does not come whhin the 
pItH Mfe na of either of the sections W the Act of 1793, which 
#ere retied upon. 

40. The uncertitinty, the mislocation, and the improper ap-* 
pte p ri i tlbn'of tKe tract to the warrant, are objected. AH df 
titeae maf^biei Considered at once, for all have been determiiietf 
in the case of Huidekoper v«. Burrus. If the warrant be un« 
cerliufi ; or, if it be certain, aiM is laid in another place, and 
VHShFSfhlh survey is made, no tiiM peaion Ydk acquired a title 
(Hifaii^lirilld on which the warrafftt is taid ; every oTijcdtion is doni/ 

# * ' 

3 0, v 


^ Lessee of Philips tts. WUmo. • 

away. The survey gives notice to all snbsequcot purduoefSy 
^and it is such only who can complain. As to the StalCf it ia 
perfectly immaterial whore the warrant is surveyed ; but| mA 
survey could not oust out a person, who, fai the meanttee, had 
acquired an incipient title to the land surveyedt ather by 
rant or settlement. As to the not surveying each separate 
rant on the land to which it is to attach, at the time of the aiu^> 
vey, if the surveyor has warrants to the amc^unt of the land sur- 
veyed, and he comprehends the whole in one inclusive survej^ 
marking- the boundaries of the different surveys ; it is nothing 
to third persons, how the owner of the several warrants may 
appropriate, on the connected map, each warrant to its re- 
spective tract, before the map is returned to the Surveyor Ge- 
neral* Whether these Qbjections are to be considered as cared 
from the day of the survey, which, in this case, was is March 
1795, 6r on the day when the connected plat was returned, 
two months after, it is not, in this case, material to decide; 
because, if an actual settlement was not made, on or before the 
first period, it' is not pretended tl»t it was made between the 
first and the laXter period. But we do not mean to inthnate 
an opinion, that the latter is the true time* 

3d. The only observation necessary to make* upon tldaob}ec* 
tlon is, that the law of April 1794, does not apply to this caa& 
This law applies to cases where the purchase money was not 
pud before; the \Sth of June 1794; and the indescriptive war* 
rants, which it is said shall not, by virtue of tfatft Act, affect the 
title of those who have made improvemcntsi are such w aif ants 
as are permitted to be surveyed under this Act, The wainDt 
in queatipn is not of thia description, because It wto paid iar fil\ 
the I2th afJunt 1794. 

The great question, then, depends upon the defendant'* title ; 
and it is to be considered, wh^her the defendant, or the penoa 
under whom he- claims, made an actual settlement within the 
meaning of the Act of April 1 79,9, or at any time before March 
or May 1795. What cwatfettttea auch a settlement, si a point 


» ' 

OCTOBER t&RM) 1806. 

475 ' 

Leasee of PMfips tw. Wilson. 


of law, tad was folly laid down laUtt tase of BaUbur'a Lcmeoi 
VM. Meady which has b^en read to the jory. Whether such a 
aettlemoBt was made, is a matter of Iset fer the }ury <to decide* 
Ta disproTe such a settlement, the plaintiff relies upon the 
■tateof the country, which, from 1793 to 1796, forbad any per- 
iod to make such a settlement, and the general evidence given, 
that tie such settlements ware made witfain that time. That 
Guy was a resident with his family, during that period, on the 
south .of the Ohio, and that he only ventured out at times to 
the cabin he had raised, for temporary purposes to make sugary 

- or under a fidse, but common opinidn, that Imprpvements, with- 
out an intention to settle, would give a right. 
' The piaintiff*8r counsel have also insisted, that, even if an ac- 
tual settlement was made, it was not on this land ; and thati 
therefore, the defendant cannot now run into this land, which was 
surveyed in March 1795, There is some contradiction in tho 
evidence, as to this' fact; but, if proved, <as contended for by 
the plaintiff, it would become an important question, whether 
the settler can«.extend the limits of his 400 acre 'settlement 
right, into an adjoining survey. If he has foQed to lay off hia 
lands before such survey is made. Without deciding the pointy 
it may be sufficient to observe, by the way, thi^, if he maj* do 
ao, he has it in his power to make his settlenient protect not 

. merely 400 acres, but three or four times as much, from appro* 
priation ; bf extending his limits north, south, west, or east, as 

*hi8 foncy or caprice may lead him; and thus either prevent 
osiers from surveying in his neighbourhood, or afterwards dis* 
turfo their possesiioM This would seem a, very unreasonkble 
thing; hot this daae seems to keep clear of this'' objection, as 
he applied to the surveyor to mark the bounds of his settle* 
mcDt right, at the time he w;as surveying these warrants. I 
know not what more he colild do; and, I am inclined to th|nk| 
it would be unreasonable to make him suffer, because the sur- 
veyor refused to comply with tiie request, provided he was 
such a settler, as was entitled to cil upon the surveyor to. per* 

f ■'. 



f l» 

UesBee of PbUipB w. Wibon. 


H ' . ♦ 

%rm this f)uiji for, if ]hc wiftiiofct th^ there was «|i onduf tte 
gpni^overvf: ao^ this brings uf to the iipportantpartof thec^iiq^. 
Wm be fuch f s^tl^, ^ M^rch 1795 ? Ij^ upan the fYid«M;% 
ji^^ wfm cf opmipB be was not) then y<uir verdict mttut bf fbf 
tlie fitm^i '^ be watt then it n^M be Ipr the definicl^^tr 

7%e jury found for tkf fiiainfifl 

Ingerion and Tilghman, for plaintiff. * 
Levy and Rodney, for defendant. 





I >> 

'» ' 

' Wabe v». TarK Adhikistiiators of Wade. 

InteMSkdii mon^ in the haadfcf the admioististQi^ » not ohniie^le^ when 
'tefilAe jsaetMafi ov l)ie luincb «f the a4Qii»Mnrtor. imti) a tiiit ahatt 
detenniiie the right of the cWmot thereto. 

X HIS action was bfought to recover one-aixth part of the 
personal estate, of which the intestate died possessed ; and 
many depositions were read, to prove the plaintiff, and five 
others, his brothers and sisters, being in England, to be the bro« 
tbers and sisters of the intestate, of the half bloody and his next 
of kin. The estate consisted of two bond debts, due to the. in- 
testate at his death, q|^ of which had been paid, and part of 
the other. The defendant had resisted the payment, donbting 
the relationship of the plaintiff, and preferring to have that point 
judicially ascertained; but he promised to pay, if Uiat .should 
be done* The plaintiff claimed one-sixth of the principdj 
and interest of the bonds, which constituted the es^te, from 
their date to the present time ; except upon auch parts as 
bad been paid, upon which he did not claim iiAerest from ]khe 
time .of payment, as the money was retamed by the defendant, 
oply with a view to ascertain the plaintiff ^s right to it. It was 
objected, that the verdict ought not to be for the uncollected 
part of the bond. 

WASHIJ^fQTOJ^i y. stated to the jury; that if they wefe 
ittdafied that the plaintiff is one of the brothers of the intesUte» 
he is entitled to recover one-sixth of the principul and intetest 
•f these debts ; but as the plaintiff waived interest on the snns 
eoUectM, from the time they came into the defendant's hands, 
in conaequence of the doabta be entertmed of the relationship, 




* \ 





Wade w. Wade's AdnmiiatntofB. 


tkey might deduct the interett ou tkqpe rams. It doet ii6t ly- 
pear from the evidence, that the uneoUected h&uA had erer 
been put m suit, wx does it i^pe^ that the obligor' was at any 
dme, or is noir, unable to pay. The defendant has been ad- 
ministrator for some years, and told the witness, that if the 
pUintiff established his title, he, the defendant, must make the 
obligor pay*up. 

^ Verdict for ftlainHff^ for one-^ixthy firinc^l and imtrent^ 
according to the charge of the Court, 








.3 ' 


If apiifykiiowstlwI'A is an agent for s^eml ahipftn^ who h^d aqMrate 
InteBBits m liie caig<v be cunot talte the propeily of the principal to 
pay his debt; aHhougfa he would be perfectly justified in paying; ovei the 
money» for the use of the principal, to the agent 

A consignee, who recdves merchandiae (rom the 8upf»<aago for sale, and 
idio knows tijkt the sttpn-catgo is the agent of odieis, contaaets a debt 
wHh saoh shipper fbrthe proceeds of lus portion of the caigoi and th« 
supia-caigo has no right to ippn^tiate the aame to the pqnnent of 1^ 


private debt 

X HIS ftclion was brought, to recover the amount of sales q^ 
certain goods of Ihe plaintiff, which were put into possession of 
the defendant, a merchant of Bordeaux, by Randell the agent 
of the plaintiff, and supraH^argo of the Ploughboy. It appear- 
ed by the evidence of Randell, that the Ploughboy was the 
prope^y of Jones & Clark, of Philadelphia, who put on board 
the principal part of the cargo ; but the plaintiff, with some 
other merchants, also shipped separate cargoes for Bordeaux^ 
consigned to Randell, the supra-cargOy who received his sepa- 
rate instructions from each shipper. The plaintiff's instruo- 
tions rather limited the general authoHty of the supra-ca^o, 
but it did not appear that they were communicated to the de- 
fendant. On arriving at Bordeaux, RandeU placed the busi* the hands of the defendant, to whom the whole* cargo 
was delivered i and a freight list, which did not distinguish 
otherwise than by numbers, the separate interest of the^shippers^ 
But the defendant was distinctly informed, that such sepavato 
interests did exist, and to what extent. Some time after the 
sales liad begun, but before the whole was completed, Randel) 
drafted a plan for ^ voyage, for the ship, with a oargo from 
Bordeaux to Guadaloupo, and thence back to Bordeaux, with. 



«aaai»— — — — — MM«*«». tm-nn n 1 1 

Meitict ^. BemaM. 

a cargo of colonial ptoduce ; and having receiTcd conaidenble 
advances from the defendant, to enable him to place lands in 
England, for the use of Jones & Clark, he atipnlatod with the 
defendant, to return to Bofdeaiix, to the defendant's address; 
and to secure the defendant, he gave him a general ioToicc of 
the whole cargo, t6 tMhlt him to InsOfe. ' He toot in a tar^ 
at Giiadaloupd, slfid retuitied to Bordeaux ; but before he got 
into the town, having heard that the government during hk 
absence had laid such high duties on colonial produce impcMrt- 
ad otherwise than in French bottoms, as tP vender the vofage 
m Idsing one; he wrote to the deimdant to know bon this &Gt 
was, «ikI suggesting the pvopriety of his going to A tosi er d am, 
or elsewhere, to sell the cargo, promising to allow the defend* 
ant the same commissions, as if he had sold it. The defoidant 
wrote him, that he was misinformed as to the new law ; that 
fee would be admitted to an entry-, if he was furnished with all 
{proper ceftificates and documents. He went up, and delivered 
the cargo to the defendant, with d freight list, from which, or 
from other papers, the separate interests of the shippers were 
distinguished. About this time, the defendant received inlbr- 
mation of certain bills, drawn on hink by Jones 8c Clarky pay- 
able in Amsterdam : and finding that the part of the cargo be- 
Ibngin^ to Jones & Clark, would, hi consequence of the new 
duties, not form a sufiicient fund to enable; him to take up those 
bills, he hesitated about accepting them. To bduce him to 
do s6, Randell agreed to place in his hands the t^hole cargo ; 
dbserving, that he could draw upon Joftes & Clark to reim* 
burse the 6thef Shippers. This was agreed to. The wMe 
(^argo was so a|»pro{Sriated ; the bills were drawn on Jooea ft 
Clark, who refused to pay them. 

"the defendant being found iii Philadelphia, this actioOyfiM- 
money had and received was brought to recover the fuR 
athount of the plaintiff's part of the cargo, deducting thetefrom 
the old, and not the new duties ; which, it ifks contended, ought . 


OCtOBER TERM, 1^06. 


Heirick v^ Bernard. 

not to be charged to the plaintiff, as it Was by the defendant's 
misinformation to kandell, that he went tip fo Bordeaux:. 

Duponceau and Dallas, for the defendant, contended ; firsts 
that Randell, from his genera! power as agent, had a right td 
)(hake this appropriation of the plaintiff's funds, and to reim- 
burse him by bills on Jones & Clark, for the payment of whicll 
th^ defendant was not answerable ; that if this was his general 
power, the defendant was not to be affected by any private 
limitations of it, from particular instructions ; unless such com- 
munication was communicated to tJie defendant. That though 
a factor cannot pledge the goods of his principal, for a debt of 
his own, whether with or without notice, (6 East. 1 7) yet he 
^may sell, if banajidey and without notice. 4 Burr. 2051. That 
the power of a foreign agent is more extensive than a domestic 
one; Butt. Nis. P. 130. That it was not sufficient, that the de* 
lendant should have notice of the separate interests of the 
shippers ; but that he should have had notice^ that the agent 
had limited powers. Randell might have received from the 
defendant, the amount of the plaintiff's interest, and then have 
l^t or given it to defendant, if he pleased; in which case, he 
ah>ne would be answerabHi. " ' , • ' 

9d. As to the extra duties ; Randell was bound by a contract^ 

which was certainly within the scope of his authority, to go tof 

Bordeaux, that the defendant might not lose the security for 

. tts advances, or the commissions; and that the ihcrease of duties 

;.4ld not discharge him* from this obligation; if he did wrongs 

hd alone is liable. Cases cited} Abbot, 78. 3 Bos. 8c Pull. 490. 

Oil the plaimifF's sMe Was cited, 6 East. ir. S.T.Hep. 757. 2 

Strang. 1 178, as to the powers of feotors. -' 

The Court informed the plaintiff's counsel, when about to re^ 

ply, that they wished him to confine his observations to the facts 

lit the cause; since, upon the lliw of the case, it was impoasibltfr 

diere could be two opinions. If the defendant knew, that Ran** 

dell acted as agent for the several shippers^ and that they had 

isTeral interests in the clargp } }S^tj\ the defendant) by tim sal* 


» f 

• . • 





Merrick vs. Bernard. 


of the plaintiff's part of the car{^, contracted a debt with him, 
though he would have been fully justified in paying the moneys 
to the agent, unless prohibited to do so by the principal. But 
this very power in the principal, to forbid that payment, proves 
that there subsisted a contract also between the defendant and 
the principal. If this be the case, the question is, has this debt 
been legally discharged ? That it has been paid either to the 
plaintiff or to Randell, is not pretended ; but has the defendant^ 
by any act of Randell, been exonerated froqn the pajrment? 
This brings us to the question, what acts the agent could do, 
to discharge the defendant within the general scope of his au- 
thority ; for if that was restrained by any private instructions, i^ 
does not appear that such instructions were communicated to 
the defendant. He had a power to sell the plaintiff's '^Tdpestj to 
the defendant, or to authorize him to sell it, and he might have 
received payment in money or in bills, and possibly in other 
ways. But most clearly he had no right to permit the defend- 
ant to retain the money, to satisfy the debt due from the agent 
himself^ or from any third person, with notice to defendant of 
t}ie plaintiff's interest. If th^ defendant had paid the money 
to the agent, he, the agent, might, without such notice, have 
paid the money again to the defendant, to enable him to take 
up the bills of Jones Sc Clark ; because, in that case, having* 
once received the money, and mUed it with the general mass 
of his own money, there could be no means to identify it, as 
belonging to the plaintiff; and in that case, the agent alone 
would have been responsible, (a) But suppose, when the de- 
fendant paid the money, in the supposed case, he bad received 
it back, with perfect knowledge that it belonged to the plaintiffs, 
the payment and repayment being merely an operation to en- 
s^ble the agent to convert the plaintiff's money to the use of 
' Jones Sc Clark^ there would have been malafidea in the tran^ 
action; and tjie defendant, receiving the money as thetkioney of 
the plaintiff, would be answerable to him for it ; po matter how 

{a) See Sulk. 150. 


t t 

. * • OCTOBE8 TERM, 1106. 

48 1 


Meirick M. Bemaid. 


the InttMptioB waft laaetioiiednij th*ftg«iit> the defeadtat c«iild 
not ujf tfast be had discharged the debt •wse due to the plahi* 
tUr. The whole qneetlm then-is, whether this tnaisactioii wet 
Bau^Jide or aot i end whether so or noty most depend on tiio 
qatetkMH whether Ike defendam knew thai KsadeU was tho 
agent of distinct shippers, and tliat the cargo thus assigned 
oter to him, for the payment of the bills, was the property of 
different pertMHM. If he did know these &cts, the cause is 
eleariy with the plaintiff. • • 

' Upon the second point, the &cts appeiitef to be as stated 
by the defendant's counsel, that RandeU'was bound, by an agree- 
ment with the defendant, to return from Guadaloupe to Bor* 
deaux ; the counsel for the plaintiff, upon an intimation from 
the Court) of their opinion on that point, gave up the claim oi 
^fifff^renoe between the old and new duties* 

Verdict for fiiaintiff. 

Ingeifloll and Gibson, for plaintiff. 
Dallas and Duponceau, for defendant. 

» . 

■ « 



4L * 
( - 



-"ssee of Browne «i. Aibunkle.. 

T 1 r— '^ 

*'afrai|t» iMire deliveml to tKe supeyor . 

ons to Uj then on the tiiaii^^ \m 

.Ls wei^ siir^ig^f %3r ruiming aortli aad 

. mile trees or yofM^ had been preTion^ 

., to the lake ; marking on this ^^e, comer tree* 

of so PMiiy perches from eaeh other. Then mea- 

.a the extremity of this line, on the lake^ one mile, 

arking^a comer, and extending it two miles vest ; then 

.til to the State line, marking comets as til the first line, 

and parallel thereto; then ^est two mUss as kefore, and so on 

throughout. After compleHiag the &sM wolk in this manneiy 

itlhe whole was protracted, and the different tracts laid^down by ' 

protraction in one connected map ; which was returned wilAi 

each surrey early hi 1795. The plaintiff produced evidence 

SLS on Ihft flatter trials of the Holland and Population Oompa- 

«Dy's suits^ to- prove pretention and peraistaaice, fh>m 1792 to 


The defcndafit aet up no.Utle in himself, but endeavoured to 

^impeach that of the plaintiff, by evidence showing that on a 

late survey by order of the Court, the lines as laid down in the 

connected plot, were not to be found ; from wheiM:e it was con- 

dtni^ed, that no actual survey had been made of these warrants ; 

- mm! the. Act of 8th April 1785, sectkia ^th, was read, which de- 

darcff that every survey thereafter to be.retumed mto the land 

office,, tfpoii any'wajrrant which shaH be issued after the passage 

sf iCh^ Act, shall be made by actual going on and measuring thp 

lan4^ aAd marking the lines to be returned upon such warrant. 

The eounsellbr. the ddendants, therefore, contended; Ist' 

Thttt a legal surv^ waa not made, even thoughlt appeared tb^ 

have been made in the manner stated by the plaintiff; since 

none of the interior lines, litftween the two mile norths and south:' 

pan^l lines, were measured or marked on the ground. 3d* 

That tile tftfis of the waitaiit holders became void, the survey 

ik>t hav&ig1>eSn madHn two years after their dates* 3d. That' 

' tbeeettlamciU pught to ha?« )>pcp laade in two j^pars from tii# 


' tMtkMUwplwi- 

tltmt put of tfas 

(VoffaKcd it dlfaes 
Bit. Fooitk 

Atber the caorey- 
3 cnt or sot; to ^ve 
«j'^|W^n tbe facts in tho 
3 fiR-the conudn^ 
^rt. ThattkucHe 
Etfco cm wi i ■ *■ w 
fif wlilM nccnoMf 

jipt, nude with lh« 
Et.all b{ut Johp, wbtf 
i. In tluK caM, 

iff t»Bite io|tii> 
claim th»juri^ 
Srhich is nal iotend- 
Rctioo to tbc.Cowit, 
Eftw, maislr b*Gaaa» 

OCTOBEl TERM, 1806. 



Leisee of Browab 9$. AilHinkJe. 


k dumgm the nature of tbeiraityirifch the phdmiff bwa«igkt 
to nMiBft«i» im tUs Court. 

' Tte fiwpt objootioB to the plaiiltlfVtilie Ip, tltat the wamM 
WW aot legaUf svrreyed ; becauMVIl tlie^ liaee of eick tnNt 
Wtmaoi ran ead^maitod on tfao gMNHidr 

An actual iur^ef on the grouudy «o as to cftaUe tl|o survefor 
^fiMike a Bpedfic location of the warrant, ig clea^y proper; 
because, otherwise, the grantee in the warrant, cannot fix witii 
cf^rtalntf, the spot on which his warrant ao locaibed. But, nei- 
ther law nor reason requires, that, in all cases, and under everj^ 
possible cireumstance, everflkieof asuiw^ffcould be runiUMi 
marked on the land, much less thst the doing so should bo 
material to the yalidity of the sarrey. For instance, the clos« 
ing IiQex)f a sntrey need not be run, and so we have detenaiiH 
ed ;> because it can be laid down by protraction, with as much 
certainty as by ruaning it* ETery thing necessary to designfite 
the Huid covered by the warrant, so as to prove it to be with- 
drawn from the general mass 9f property, and appropriated to 
the use of an individual, should be done on the gpround ; but, if 
this can be effiscted without running every line, every line need 
not be run. Now, in this case, the Population Company were 
substantially the owners of S90 thicts of land, adjoining each 
other, and, of course, in one body, though nominally th«« were 
390 owners. 

The boundaries of these tracts were run and .marked on the 
g^und, aa well as the interior lines, so fiir as* to enable the 
surveyor to lay down each particular traci by protraction, whh 
as much accuracy as if every line of each tract had been mea* 
sured on tde ground. Each tract was /thus laid down in one* 
conSnected plat, and rrfumed to the Surveyor Qeneral and, tho 
land 6Ace, as directed by law. (a) This, therefore, gives notice 

(0] 1 9m stroQf^ the gpiaiei^ that tho Act pf 1795, U merely 
dii«ctMf*tfroB) the ^eiy daose which diredi sn Mtual tufrey to be raadcf 
the mrvey^ declared to be void» if made without a warrant, but not so^ If 
not actttsHy made on the ground. W. ' • v 




Lessee of Biowne tw. Aibunkle. 

to the whole world, that 1^ whole of the triangle was appro* 
priated by the Population Company, and it shows the boooda- 
rieo of each pardciilar traet. What th^i has any third peraon, 
or eyen the State, to do whh the particular mode in which this 
is effected, if no third person has, in the meantimcf acquired a 
tide to the land, or some part of it ; fuid no such right is pre- 
tended in this cause ? Thb point we have decided on a former' 

The second objection is, that the title of the warrant holder 
became void, because it was not surveyed in two years after its 
date. The first answer, which seems conclusive, is, that there 
k'no law which declares it void, if not sui^eyed in two years. 
Generally speaking, the only penalty to which the grantee in 
an uncertain warrant is exposed, by not having it surveyed, is,' 
that he cannot locate it, so as to overreach the title of an inter* 
mediate settler or warrant holder; Vho has acquired a title to 
the land by a special location of the warrant, or by a survey. 
There are no Expressions in the Act of 1792, which declare it 
void; and the reason assigned, that if it be not surveyed In two 
years, no vacating warrant can issue under the ninth section, 
will not be found to be sufficient* If pursued, it will lead to 
this, that an uncertain warrant, not surveyed, is void ^ because 
BO vacating warrant can issue, and a vacating warrant cannot 
issue, because the warrant is uncertain, and has not been sur* 
veyed. - If such a warrant cannot issue, because of the uncer- 
tainty of the location, it seems useless to declare it void for that^ 
reason ; but, if a vacating warrant cannot issue in such « case, 
and this would be probably necessarily the case, since it could 
not be said, that the original grantee had failed to settle what 
had, in truth, no locality. Still, any person might acqtiire a 
title by settlement on the^ land, or by an original warrant; 
which, as before mentioned, would cut out the first warrant 
holder as completely as if he had located it, and then n^lected 
to settle it, according to the terms of the ninth section. 

The thii^ obfection is, thiit thfs settleo^ent should have becD 





OCTOBER TfeRM, ISOfi, ' ' 489 

t \t i n L ■■ ■ ■ »* < 

Lessee of Browne m. Arbunkle* 

msd^ wkMD two years fix)in thf imjt of the nurve^. This ia 
*4irectl7 lit the face of the decision of' the Supreme C^^Birty ift 
' Huidekl^r vb. M'Lean, which fixiAiiie^tine of setllMiieiit ti>^ 
be two fMM .from the date of tte vtarrant. Th€ relative' 
^>irQvda» ^ next aftj&r the date of the same/' Id the first sentence 
of tbe Dii^th sectfam of the law, clearly refer to the wonls, << the 
itif0 of such warrant," as their antecedent. If a ccMmiy ccm- 
struction be admitted, then it must go throaghout, an4 apply 
to the case of a special, as well as to thatwf a gcmeral warrant; 
and, in both cases, it might give the wiarrant h^er i^ear fi>ur» 
instead of two years, to make his uttlamwir jji The wordi^ 
(< the same," if they do nbt relate to ^^yifVO^Ay*^ their immedii^^ 
antecedent, refer to warrant or eurvey^ or to warrant and 
survey f neither of which would answer, since they could bear 
different da;le8; it. would afford no rule whatever. 

The fourth objeptioa i% that at the expiration of two years 
from the da|e of the warfant,^ it .was perfectly uncertain where 
the warrants might be located; it is impossible for the plaintiff 
' to prove, that the Population Company was prevented fronik 
making their settlements^ by the enemies of the United States,' 
4li the ]and in question. To meet this argument, the plaintifT 

relies upon the testimony of tbe deputy surveyor, who states, 

• • • 

that when' the 390 warranta were entered, he was directed to 
survey them on the triangle upon the connected plat; by whtcb, ' 
]|^^»peiix»,that they covered the whole triangle; and upon that 
itappr^ iad the vecdjpts for the purchase, money, from which • 
they argve that }[}[ infer, that there was one leading war- 
rant, ta which aH the rest were adjoining; an^ if you ^e.s«tif«/, 
^ed, upeii the evidenee^ ihat thia. wa^ the fact»^ th^ tbe only 
^estion remaining is, whether tbe Population Company weret 
fcr t$iro years after the dates of the warrmts, prevented fttan 
fattlbff en the lands in the triangle; apd whether they persiated 
t9 make Ih.eif settlemtnts tlvri^g that perio^.' What kind of 
a aetiliiifiiait they weie* to be preventqfi^ron^ makings and to . 



• V 


% # 

I * 


^ % 

Lessee of Browne vs. Arbunkle. 

what degree the prevention should have existed, were stated , ' 
in the charge of Hiiidekoper v^, jVI'Lean, which has been read. . 

Verdict for plaintiff. 

' Ingersoll and Gibson, for plaintiff. 
Rawle and M. Levy, for defendant. 



'i> . 

• / 

• * 

.* .♦ 

• f 

> . 

1' • 

• * 




*>■■■ ^ 


Fellcby i». Hamiltoili 

' f « 

Felichy r*. itAMtLTOy^ 

To eonstitute a partnership, there must be a commumty of Biteirests — it 
pardcipatioD in profit and Iosb % and this joint interest nnisl; eantinue td> 
the time of the sale of the artidea in which the partieia are thus interested* 

tt is the joint interest in the whole, whicih constitutea th4> Joint liability of 
all, for the contracts of one ( and not the credit whicf^ ia given to all, as 
in the instance of a dormant partner 

• If A & B purchase an article, on joint' account, and ship it; they are jointly 

liable for advances made by the consignee on actidunt of thid jciint coil- 

X HE two Miickefs, and the defendant, in 1795, shipped a 
. quantity of anuff to tbe plauitifT, at Leghorn, and the invoice 
and bill of laxfing, atated it to be on their, account and risk, and 
consigned to the plaintiV to sell. In pursuance of a general 
permission, givenrbythe plaintiff to theMackeys, who had before 
done business with them,' to draw on London for two-thirds of 
the invoice price of all goods consigned to the plaintiff, the 
Mackeys drew upon Robert Hunter, the friend and agent of the 
plaintiffs iq London, for two-thirds of the amount of this 8hip« 
•menC; and although the plaintiff found the snuff to be altogether 
ilM^Mbie and worthless, he nevertheless directed Hunter td 
take eare of the Mils. Some of them were paid and some pro* 

* tested, Jte consequence of the plaintiff's not protidhtg, at th6 
^time, fumb |br the reimbursement of Hunter, from which h^ 

Was prevented, the French having taken possession of Leghorn^ 
Th^ plaintiffs corresponded with the Mackeys slbiie, upon th* 
mb|eGl of this shipment, without once mentioning the name of 
HatnUton* They charge the advances, made 'on account of it^ « 
10 them, in sundry accounts; and in. one, th^y credit that ac* 
coins wHh a sum previously due from-ifttm, to the Mackeys, 
on their separate account } no objectiofi was ever made to the 

* f 

. t 








P I ' 

Felichy w. Hamilton. 

node of stating the^^count by the Mackeys, during their aol- 
▼ency. They afterwvda became bankrupts, and this action n 
brought to recover theirbole advances made on the snuff ac- 
count, against Hamilton. 

The only question of law argued before the jury, was, wfae« 
ther Hamilton was liable, as a partner with the Mackeys. • It 
was contended that he \^as not ; because, it being agreed be* 
tween the Mackeys and Hamilton, that the former was to trans- 
act the whole business of the sale in Europe, Hamilton was 
deprived of one of those powers, or of the whole, which is es- 
sential to a co-partnery. 2d. That all was done in the names, 
and on the credit of the Mackeys. 3d. The plaintiff claimed of 
Hamilton only cme-half of the advances. Cases cited, 1 Dall. 
129. Cowp. 636. 448. 1 Dall. 151. 269. Watson on Part. 253. 
00. 1 Ld. Ray. 666. 2 Id. 1484. Salk. 126. 292. Wata. 58, 59. 

WASHIJ^GTOJsr^ J. To constitute a partnership, there 
must be a community of interest; a participation in profit and 
loss ; and this joint interest must continue to the time of the 
sale, as well as to the purchase. This joint interest in the 
whole, is what constitutes the liability of all for the contracts 
of one. If the Mackeys and Hamilton purchased on joint ac* 
count, and shipped the snuff to be sold on joint account, then 
they are liable jointly for the advances made by the plaintiffs, 
on account of this joint concern. The measure of t)ieir interest 
in the snuff, will be the measure of their liability for the ad?aa<- 
ces. If they were not jointly concerned in the sale, the conduct 
of the Mackeys, in making the shipment on joint account, if 
not ^one with the knowledge of Hamilton, cannot make it % 
partnership transaction. But, if they were jointly concerned in 
the sale, then the plaintiff, corresponding only with theM&ckeysy 
did not discharge Hamilton. The responsibility of one partner, 
for the contracts of another, is not solely on the ground of the 
credit being given to all, which it is not in the casQ of ^ dor* 
mant partner; but because, that being to share the profits^ 

• * • 


I • • • • 

OCTOBER TE31M> 1^6/ 

mv *m 


Feticfagr «•« HwiMtiOii. 

Hbtgf ttuflt abare the Iom. Nci^r would tke 4greemefit of one 
)]Mitaer with aBother, not to act 1b tlie bwiM^; whatever m^j 
1^ tbt tfect of this as between te |iaftiei| it is nothinji to . 
third p«trsoti8 ; neither ought the jfim^ to be affected by hb 
iMKTJflg daimed only a moiety from Hamibim. For^ li there* 
waa really a partnership^ it was no more^an a nuatake^f his 
legal lights. 

Verdict for ^Mntiff. 

' . •> 

> . % 

• f • 



/ ^OCTO^R TERM, 1806. % - ^. 495 


- ■■ ■ ■ t ■ ■ I — ^— ^^-^ 

Chllds vs. Shoemaker. 


i^MOA, and a bond was given by.Jbim in Idi •«» jiame^^wkliouf 
^ntionmg Robert Denison, for pa3rnient of the dutiet, with 
ih^ plaintiff and Brown as his flM'eties. Ghikls having been 
comfKjied to discharge the bond, and Edwat'd & Robort Denw 
son being, bankrupts, this action was brought ; and the queatias. 
wa% whether the -plaintiff is entitled to a preference of the 
Q]th«p creditors^ or must come in equally with them. • 
■ It waa contended, by Mr. Dallas, for the plaintiff, that though 
it does not appear, on the face of the bond, that Edward De- 
nison subscribed the same, as agent t&t the raal owner, yet, 
that this being made out in evidrace, dehors the bond, the ef- 
fect will be the same ; and therefore, that under the 65th sec- 
.iion of the Impost Lawi Act of 18 the pkuBtilT, 

the surety, is entitled to a preference of the other creditors of 
the owner* The agent need not sign as agent in this case, any 
more than in the case of an insurance qiade by him in England, 
under the sutute. See Piirk, 15, 16. 1 T. Rep. 313. 1 Bos. & 
Pull. 345. 

Rawle and Ingersoll, for the defendant, insisted : 1st. That 
the law which gave this preference, was uncofistitutional; though 
under the 8th section of the first article of the Constitution, 
Congreaa might, as a consequence of the direct power to lay 
and collect impost and duties, give a preference to the United 
States, yet they could not transfer it to a surety, since the col- 
lection is complete by the payment of the surety; and ther^ 
fore, all the power on this subject, is thereby expended. 

2d. The preftfence is against the principakLin Ike boBd,4iot 
t)ie owner of the p;ooda, £dward Denispn istkiepna^^. The 
distinction between oiwiMr, consignee, and mgent, is clearly 
marked out in the law* Even the United Statea could not sue 
the piprner, if not principal in the bom^ i|kuj:h less the surety^ 
whose right is derivative. * 

. 3d. The preference given by the law which was read, was 
dope ajmy by the Bankrupt Law, which p|Ua all creditors bn 
m equality; except the United States ; and sureties being not 

f • • ». 


/. • '^ 

y 1 

' •. i.> 


^ »> 


Chikb m 1 

induded withia tte mmocftim^Mtc loft oa^tlie groviMl of 
' private crediton. 

Dallas flod M'C«mi» fbr tlie pfemtiff» upon the tbM 
eontended, that the law iMch girtii the preference, ae*i Hie 
section of the Bankrupt Law, which is relied upon, are afintt»> 
tire statutes; and the latter does not rq»eal the. Ibrfliiir^ittv 
priority given to the soretf. 

WA^HIJ^G7X)J^, J. The cpiestion upon the case agreed 
is, whether the plaintilT, Childs, is entitled to the like advan* 
tage, priority, and preference, for. the recovery of the money, 
paid by him aa above mentioned, out of the estate of RoibeK 
Denison, as are reserved and secured to the United States, by 
the Act of the Sd'^of March 1799. If in the affirmative^ 
judgment must be fat the plaintiir; otherwise, fer defisndant* 
Throughout the law imposing duties on imports, the distinc- 
tion between owner, importer, consignee, and ag^it, is care» 
fully marked, and uniformly adhered to. The entry of the 
goods is to be made in the naune of the 'owner or ccmsigneei 
who, for all the purposes of the Uw^ is cedsideved, by ths 
62d section, 'as owner; or, in cases of the i^bsence, or akk* 
ness of those persons, by their agent or Actor, in the name 
of the owner or consignee; and is to be verified by the oadi of 
the person making the entry; in a way to point ouCdiatbclIy 
the character in which he acts, whether as owneri constgoee, 
or agent. If the entry be made by an ag^t^ or &t)^, where 
, the pariieulars of the merchandise are unknown, it is, by the 
36th sectiMi^ to bo in writing, and subscribe bf him in h9 
name, as agent or fiictor for the owneiP<o^coiltigiiee. The boacf 
for securing the dutiss, ii^ ^ ^be 6!2d settion^ to be in the' 
Bfmsof the importei; o^ consignee; 01*, if it 'be giveli by aK 
agent, then in the name of such agent, andoftha, importer or 
conaignee, and the sureties, with condition for ptyi^eal of 
the duties by theQriAcipal or his agent, and the sttredes. fill 
addition to this bondi th&jifent, if the entry be made bjr h^^ 

• • • 

• 4 • 

f ^ 

OCtOBEK TERM, ifcod. 


Childs f». Shoemaker. 

ih *i ■ 

i»f6 ffiwe a bond in rk^ penalty ot 1000 doUafd, td ptoduTfe 
an account of the goods, verified by the owner or consigned, 
wMiiii a stipulated tinier By the 65th section of this kw, 
a piicNTity of sattsfaction is giTen to the United States, against 
ail -the obtigors in the bond, in case of insolvency ; and, if t^ 
f ir in c ^ ai in Htck kand^ gfven either by Himself^ or by hi9 ttgrnfj 
J^e$r^ or otker fierson for hitn^ should be insolvent, or if hift 
estate in the hands of his executors or assignees, be insufficient 
for the payment of his debts, and the bond shouTd be discharged 
by his surety; such surety is entitled to the like advantage> 
priority, or preference, as are reservisd and secured to th^ 
United States ; and he may mauitain a stiit vpon the aforesaid 
bond, in his namey in law or equity, for recovering all moneys 
paid thereon. 

* Here, then, we find that the distinction between owner and 
ionporter, consignee and agent, which funs through the various 
sections of the law, prior to the 65th, is dropped^ when the 
femedy for the surety in the bond is provided for. The pre^ 
ftrence given to him is not against the owner, importer, con*''' 
fiignee, or agent, but against the firinciftal in the bond, Whd 
is the principal in the bond ? He is marked in the condition^ 
Th« person who entered the goods, viz. the owner or importer, 
if the entry were made by him { or the consignee, if made by 
him ; or either of those persons, if the entry were made by an 
agent, or otirar person, in their names, and who is an obligor 
in tl^ boai^ either by bis own signature, or that of hts agent, 
or other person authorized to bind him. No person can be a 
principal in a bond, who has not<^eaIed it, either by himself, or 
iy some person authorized to do it for him. If the bond be ex- 
ecuted by a third person, in the character of owner or con- 
signee^ he is the principal, thoug^h he be iU>t in truth the owner 
or consignee. If the factor make the entry in his own name, 
the bond wiR, of course, be in his own name, and he will be the 
principal ; if made in the name of the owner or consignee, he, 
in whose name it is made,, will be the principal, if th« bond 

3R • 


Cbflds w. Shoemaker. 

W euGutttd by or for bii|i« But if he be not the. oUi(or>^he 
easnet be {irtticip^ 

Thle is fn actkai of debt; and the fiM oewt ki tkodedii^ 
tion sutesf that Robert OeniBon executed the boad by Sdwaid 
peniaoii, bit agent or factor. Now, in point of fo(t» the boad 
was not given by Robert Deniaon ; beea^ae it vaa nrithar 
rigoed and sealed by him, nor by his agent ov attemey for 


The second count states^ that the bond wat given by JSdwari 
Deniaon and the auretiea, for and at the inatance of Robeit 
Deniaeo. If ao, it ia not the bond of Robert Deni«on, but of 
thoae who executed it. But a comjilete anawer to both oounia 
18, that the bond waa evecuted, net by an agent or footoiv bal 
by the con9ignee of the goods ; who, as to a]l the puvposea ef 
the Act, is to be considered as the owner; no parsHel can be 
4rawn between this case and that of an insurance effiscfted vk 
i;ngtaad by an agent. The statute direeUy that the nanae ef 
tb^ agent shall be alated in the policy ; but, it ia not n^rmrsaiy 
that his character of agent should also be stated. But, In \\m 
case the preference is g^ven against the principal in the boad^ 
and the only inquiry is, who ia principal. 

It is contended, that the not entering the name of Robeif 
Deniaon, was a misuke of the public officer. In the first pHtce, 
{ do not agree that it was a mistake ; because, Edward Deoi* 
son being the consignee, he was properly thopiMapal in the 
h9A4- ^^ i^ i^ ^«re a mistake, it cannot be rrrtMbd oa this 
side of the Court ; and, if the plsdntilF wefe to seek i^lM on 
t^e other side, he would be taU that e<|ttaliily is equity ; and 
chancetry will not cure a defect at law> in order to violale on* 
of its fovouri^ masams. 

The decision of this poutf, rendera it unneceaaary to niMwIia 
the other pomu imde by the defendant's counsel. 

Judgment far defmtUmU 

OCTOBEft TERM, 1806. 4M 

Butler iv. Hopper. 

' % 

P. BuTLXft, EsquiRBi v«. Hopper. 

Special verdict— Tke pkintiff formerly lived in South Cwolini^ whoe lie 
had a plaatatiofi which he cultivated, and attll contimies to do mh by hi* 
manager and sUVes, and open which he has a furnished houie, and aer^ 
vatHii Fram 1794 to tlus thne, with die exception of aA ammal visit ta 
hia ertate hi Carolina, he has kept a dwelfing hooae in the fa^Jf of Phi« 
ladelphia^ and has resided in it with his famuly and seihraiits, and aman^ 

' them Bm ; who was his dmt before he came to Phibdelphia« and adio 
ooBtfaMied with bin, ckined as siioh» rnitii September 1805, when claim- 
ing hb fi«edom» he was discharged frm hia service^ by Ao&eat eor^ws ia- 

, aaed by the Court of Common Pleas of Philadelphia county. 'Whilst on 
bia estate m South Caiofina, Ifr. B. always kept house, having Bm witb 
lum. FroM 1794 to ifiOf, Ifr. B. represented the State of South Caio«> 
fiiia hi Congress, wildi die exception of two yean^ daring whieb, h4 WM 
« member of the Legiatature of that State. 

Hie Act of Assembly of March 1st 1780| is not contrary to the lat srtidle dL 
4ie Constitution of the United Statea^ aa the 9th aection of the 1st article 
thereof does not apply to State governments \ nor does the 2d section o^ 
the 4th article extend to the case of a skve, wltrnteri^ corrtof byhismaa- 
tn into another State, and there leaving lum under the protection of some 
-Unr decMng ban free \ but to slares escaping from one Stale iirto another , 

The plaintiff cannot churn an exemption from the operation of the Act of ' 
Aaienibly of Peimay W a g iia \ because, for two years he ceased to be a menv 
Wr of Ooiyi*ihafcditehythiatime» he loat the privilege which •feet* 
«cylioa|^n«hteii gc joMtoot be considceaA a w ^ m mm t in the Stsla. If 
. aiMA rsmoire fiism one SMe tp anodiei^ with an intentkm of mnkiDS the 
•latter the plaQs of his pomanent abode, he is domiciled there \ although 
he leave behind him another estate which he cultivates, and is even electp 
ed a member of the Legislature of the State, where the same is situated. 

If the jm^. In a s(>eimd verfict, find foots only, the Court must draw the 

^ kjll^eOMiiUteMtti'ttem; aftdlflh^dfow concisions against Siekw 
«|kliJlMi foatfliliwm,tii6€iN0twtt lajeet Ihe-ttoodnslon, and judge 

lV]|«e tfasvlpty fold only audi focta aa Itmre th« qiiafltion of law eqpivoca], 
and then dnw a condusion which the foots not found mi^t have wamnt- 

. ed» tlm Court win say thgig mnnchiaion i» agaimt hw. 


Butler M. Hopper, 

•J* .,^ ^^^ comes before the Court on a special verdict, the 
^jl parts of which find; that the plaintiff formerly lived io 
•jK* "^i*^ ^^ South Carolina, where, as well as In Georgia, he 
^^ a valuable plantation, which he cultirated, and still cultl- 
vatt^ by his overseers and slaves, and on which he had, and 
3uZI has, a furnished house and servants. ' That from the year 
1794 to the present time, with the exception of an annual 
fisit to his plantations at the southward, continuing from Oc- 
tsber in each year, till May or June following; he has kept a 
^ellhig house in the city of Philadelphia, and has re^idedm 
it, with his family, consign g of several children, and domestic 
servants, and amongst the latter, Ben, the subject of the pre- 
sent suit; who was hi^ property,. as a slave, at the time of his 
coming into this city, and who continued with him, claimed as 
such, until September 1805, when he was discharged from his 
service, under a habeat corftuM issued from the Court of Com- 
mon Pleas of this State. Whilst on his plantation in South 
Carolina, during these annual visits, the plaintiff kept house, 
always having Ben with him. From the year 1794, until the 
4th of January 1 805, the plaintiff represented the State of Soi^th 
Carolina in Congress, except for twi years, between 1796 «pd 
' 1800, when he was a member of the Legislature of that Stftte. 


. . WASHIJ^G TOJSr^ , J,j After stating the case as above, prp^ 
ces ded. Upon -these facls, the question 19, yhmhapr Ben b«* 
csme free by virtue of a law of this Stste, fAsscd 00 iIm Isl •f 
March 1780; which declares, that no pertoiiof «ny wttiaii or 
edlour, except negroes registered accordhig to the Aet, shall 
thereafter be holden as slaves within this State, but as free, ex*-* 
^ept the domestic slaves attendiQg upon delegates in Congress 
from the other states, fi>rei^ oiinisters, and .consols^ aad per- • 
aoDs passing thfough^ or •t(imnmg m this St«l% snAaoi lue- 
coming resident therein. 

To dispose at once of an ^objection to the validity of tins te^vr,* 
which. was slightly glanced at, I observe, that the 9lh ^ec^tioi) of 

OCTOBER TERM) 1806. 50! 


Butler fliL Hopper. 

the la\.article of the C^QHilutim of the United States, which re-, 
strains CoR^cess from piohibitipg the importatieo bS tflavee prior 
to (he year 1808» doiet «mH» i»4t« words or meeniag, apply to 
the State^Temments. Neitbev does the 3d section of the 4th 
article I which declares, that <^ no person^ held to labour or ser^ 
vice in one.Ststef under the laws therepf, escaping into anothery 
shall, in c(msei|tienGe of any law therein, be discharged from 
such secrice;" extend to the case of a slave voluntarily carried 
by his master into another State, and there leaving him under 
the protection of some M^w declaring him free. . . 

The 'exercise of this rights of festndniiig the impoiiation of 
slaves from thp^other States, under different limitations, is not 
peculiar to Pennsylvania. L4ws of this ni\^re, but leas rigid, 
exist in" most of the States where slavery is tolerated. 

We come then to the consideration of this law, and of the 

* ^' • 

facts found in the special verdict. The plaintiff claims an ex* 
emption from the enacting part of the section above stated, 
upon two grounds : 1st, as a member of Congress ; and secoodly, 
SB a sojourner. ' The first will not answer his purpose, because 
ior tvrp years he ceased to be a member of Congress, and there- 
f9re lost the privilege which that character might otherwise 
have conferred upon him, under the exception in the law. This 
fact dispenses with the necessity of examining the wiredrawn ' 
distinction, which has been contended for, between ^ a repre- 
sentative in Contness,V and ^^a member q/'Coi^ress;" b94h of 
which espressiftni deaciibethe same character, and are varied 
in differait parts of the sec^on^, with a view to the sense of the 
phi»sef as wc^las to the grammittical accuracy. 

The next question then is, can the plaintiff be considered as 
within the other excq>tioa of the law, a aDJoumer during the 
period wh^n he ceased to be a member of Congress t But the 
verdict prechides all' inquiry into this point, by finding, that the 
plaintiff, fi^nn the year 1794, to the present time, has resided 
with bis Aunily in Philadelphia, en:ept at those times when he 
Visited Us planCttions i& the southern States. No person is 


Bttthr f/$» Voppefb 

entitled to the pfotection of the eseeptikMiy who is a resilient ia 
the State, uftleM he be a meviber efCMiipeset a MtetBtef, or 
consul. But the jury find that the fMfaUlf was a re^idntj wti 
was not eithw a member of Congresi, a mhiitter, or. consul. 
The concittrion is ineritahle. In a&sweir to CMS) it is said hj 
the counsel for the plaintifT, that the jurj ha?e Ibuad facts 
enough to show that the plaintiff was not a ffeildem of this 
State. What these &cts are has already been stated. But, 
will it be contended) that if a man removes from one State to 
another, with an intention of making the latter his permanent 
abode, he is not domiciliated thore; because he has left behind 
him an estate which he cultivates, sometimes tisits, (no matter 
how often, or how l^ng in each yeari) tfid whilst there, keeps 
house, and is even elected into the Leg^ature of the State he 
has left? These circumstances are of prodipous wei^t, I 
admit, to repel the idea of a change of domicilo ; but strong as 
they are, evidence might hare been given to the jury, soficient 
So warrant them in the conclusion they have drawn; and by 
finding the plaintiff to be a retideni in this State, they find, in 
effect, every thing necessary to constitute him a resident. If 
the jury find facts only, the Court must draw the legsl conclu- 
Mon from them ; or if, having fi>und the facts, thiqr draw a cOA- 
clunon against the law, upon the ftce of them, the Court wHf 
judge upon the facts, and reject the condutioki. But, when they 
find only such fircts as leave the qu estion of lair etpiivocal, and 
then draw acondusion which the'factiB not tnind might have 
warranted, the Court cannot say that tlrei^ concluslaiv ts against 
law^ I am thereft>re of opinibn,:that, upon this verdict, the law 
is whh the defendant. 

Ingersoll, for plaintiff. 
Lewis, for defendant. 

\ • 

OCTOBEil TBRMi 1606. 


hcmm of WaBim «. iMnwIie. 



LEftSKt or ^ALJUACB v«. Lawksmoe* 

TW title 01)4^ a sfaecifrs deed, iHhougll the deed was not iecorde4 ttniil 
efter ejectment brought, is good $ because, ahhoQgh siiih deeds do not 
convey a tkle until recorded| yet the title relates back to the time when 
the deed was made. 

X HE lessor of the pfauntiff, cl«imed under a deed from the 
sheriff, who sold the land in question to himi as the jitg^est 
bidder, under a levari faciaM. The deed was executed before 
tlie ejectment was brongbtf but was looordsd some time after. 
Lewis, for the deSeiMliait, staled, that tkuM deeds were not 
considered as conreyinip a title, til) tlssy are recorded. 

JEy- Me Cwn. If this doctrine be as slated, atill this title is 
fcad, by ralatiMi to the time when the. deed was made. 

Ferdict for plaintiff. 

Sinney, for pfeintiff. 
Xewis, for defendant. 

• • « 




DeTMlMetaL Ǥ. Oroiitdkt 


Dk Tabl&t & Co. V«. Crousellat. 

llie defendant* in in action on a bill of exrhange, may set off a 
hat upon the plaintifry for not having insured a particular sum on a 
and which, he was ordered and bound to do* the veaiel hariiy beco loat» 
and nd iiaaiaace having been «ade h^ the pknUiff. 

BmmfgoB on billa of estthaqge* paid by the defendant ^mo bits dnvn fay 
him on the pUnlift and which the plaindff was bound to pay, nnqr ^ 

The que.ti<m. » tU. «att.e were, whether the defaxhot 
could. fiet-off ag«k»t the -phuntiff 's demand, which was oo a 
protested^ bill of exchange for Che som of J^,000 sterliBg».whkh 
the defendant had ordered the plaintiff to insure on a Tcsseli 
the plaintiff being under a legal obligation to make the idmt- 
ance as directed ; but which he had fidled to da, and the rtmd 
wtfs lost. . . 

Secondly. If he could 8et-4»ff about J 1^800} which the de* 
fendant had paid for the damages on IhIIs of exchange, drawn 
upon the pluntiff, and which he had protested, though he was 
hound to accept and pay them* , 

Levy, for the defendant, contendM^ thatunder the law of this 
State, passed in 1705, which declares, thit nm the plea of pay- 
ment, the defendant may give in evidence aajr bond, hill, ac- 
count, bargain, or agreement; greater latitude was allowed to 
offsets than in Engl^. That iti the case of a merchant who 
has funds of another in his bands; *r wt)o has been in the habit 
of insuring for him ; or who accepts a bill of lading frmn him, 
and yet refuses 6r . neglects U^ make ipsyrance when ordered ; 
that he stands himself the insurer, is liable to pay 6XactIy what 
the insurers would have heen bound to pay, and is untitled t» 

OCTOBER T&RM, 1806, 



DeTtaletetftL «». Crousellat. 


make the same defence. He cite^ 1 Marahall on Insurancef 
305, 206| 307i 308, 209. 6 T. Rep. 488. Park. 303, 304. 

Rawle, for plaintiff, instated, that the action against the mer- 
^^haiit thus neglecting to insare, is founded in tnal^cio s that 
the damages are unliquidated^ and cannot be set off! 

JBy the Court, The foundation of this offset is a breach of 
contract, which makes the merchant who thus neglects to in- 
sure, tlie insurer, and he is liable as the insurer, and is entitled 
to make the defence which the insurer could make. This, 
therefore, is not a case of unliquidated damages. As t6 the 
second point, that was settled in the case of Armstrong vi. 

The parties then agreed to withdraw a juror, the plaintiff 
not being prepared to meet the first offset. 




BiafB m. Uidam Iimrince Company. 

B14TS vf. Th£ Union Inburanoe Company. 

it ii the duty of tbe aamred to represent tiuly to the u&derwBtcr ereiy fac 

widun his knowledipe or power, naternl to die risk.; and if lie onut to dc 

•0^ the poficf IS void. 
f f be n n iM in i n ii rt uft afl Ihe infonnation he has hooertljr obtairibd* he cumr 

be dyaged with mig eptescn tatiopar ooo pw i nwi ir r, ifitshoidd»fllleiwaids» 

torn out that hit infonnMit knew move than he had dJachwed, or had not 

s tated it tiiil^« 
If, ibr (raudnleot puiyo ae i ^ he avoided obtaiiung^ a full and true diadoaoie, 

the eoDseqaenoes would be the aame^ as if he had miarepreaented the 

nfetmation gifen to hifln. 

1 HIS was a policy on the Mary Add, at and from Cape 
Francois to Baltimore. It appeared in evidence by the testi- 
mony of captain West, that he commanded the Mary, and Uut 
he left the Cape in company with the Mary Ann, and that thej 
continued together until the afternoon of the 8th of September 
1804, when the Mary Ann hove to, in consequence of which, 
the Mary did so too, the wind blowing; fresb. The night wu' 
dark ; and in the morning the weather continued so thick, that 
he could not discover the Mary Ann. He continued drifting 
under reefed sails, till about twelve of the 9th ; when suppouog 
that the Mary Ann had shot ahead, he put on more saily and 
arrived in six days at Baltimore. The wind blew fresh daring 
the 6th, Tth, and 8th of Septi^ber. 

When he arrived at Baltimiore, he tnfenned Hannah, the 
clerk of the plaintiff, that he had left the Mary Ann on the night 
of the 8th, the #ind blowing fresh, which information was put 
into writing, and shown to <»ptain West, to say if that contam- 
ed a true statement of the information he had given. Being 
approved by West, as contaimng the information he had given, 
it was in three days after the arrival of West forwarded to the 



OCTOBOBR TERM) 1906. 507 

Biajm tMT. UmoD Inwininre Company, 

-^>— ^^^^^^^^^^fcM^l^Mfc^l ■ ■ I I ■ ■ ■ — — ^^ III II I 1 ■ 11 MM ■— — ^l^^^ll 

a^^t of Ui« plaintiff) with orders to paake tiu« iosuraace. Thift 
statement was shpwn to tjie defendant, when the insurance was 
nwfle. West also proved) tli»t when he last saw the Mary AnO) 
tbere -was no appearance of an/ tbti^ being amiss with her. 
The conformity of the statement shown to the defendant) with 
the infiumation reCeiTed from West) was proved by the testi* 
mcaiy of Hannah. 

In December 1804, some time after the arrival of West, hia 
deposition was taken on the part of. the defendant;, when he 
swore, that he and the Mary Ann kept company, till the 8th at 
night) when he left her in a heavy gale, which had blown, for 
the two preceding days; and in July 1^5, when his deposition 
was taken* again, he swore that he gave this information to the 
pl^ntiff on his arrival. The Mary Ann has not since been 
heard of. The ground of defence was/ that the representation 
made to the defendant, was materially variant from the infor^ 
mation given to the plaintiff's clerk by captain West. 

WABHIJ^GTOJ^^ J,, charged the jury. It is the duty of 

the assured to represent truly te the underwriter every fact 

within his knowledge or power, material to the risk ; and if he 

omit to do so, the policy is void. If be communicates all the 

information which he has honestly obtained^ he cannot be 

charged with misrepresentation or concealment, if it should 

afterwards turn out that his informant kneiv more than he had 

disclosed) or had stated it untruly. I saj honestly obtained: 

because, certainly, if for, fraudulent purposes, he avoided ob« 

taining a foil, and true disclosure, the consequence would be 

the 8«ne) as if he had himself misrepresented the information 

given to him. 


Preceding upon these principles, I think, that without go- 
ing farther than I 2aax authorized to do, I may safely say, that 
if Hannah is believed, there is no ground for the charge of 
misrepresentation. ' The difference between* the information 
given to the p}aiiitiff| Ys stated by West on his examination in 




Bkys vat Umon Insuruice Company. 

Court, and that stated in hit deposHkm in July, is iiniteria], «r 
not. If iiot mateii^, then the representation given to theofl^e 
was subst^tially true ; if material, dien Hie witness, haring 
cofitrsdieted himself if his testimony in Court is not more to 
be beHered than that given x>ut of Court, he is not to be cre- 
dited at all as to this point ; and of course there Is no proof of 
misrepresentation. But, on the contrary, Hannah proves, Uiat 
the information given by West was committed to writing ex- 
amined and approved by him, and this paper was shown to the 

FerdM ft 


u * 

/ K 

OCTOBER TERM» 1806. 509 

9BeD et ak Mb The Dafewwe InmxKiice Company. 



The fanndation of all insuraiicei^ unlefla of the wager kind, ia the real wkte 
of the thing insured. In a ralued policy, the parties agree upon the 
vahie ; in an open policy^ the assured is bound to prove it The prime 
or invoice cost, may» in most cases^ be» fnma fade^ a Teiy proper crite- 
rion of valne, but it is not coocliiffve. Tbeaefeual value should he asceiw 
tained and detetnined* and (his may vaiy from the invoice^ or prime cost; 
and, whatever the svne. xmj be, the aasusBCi ipa. bound to* pay it in an 

1 HIS was an open policy on the brig Hound, from Kingatoh 
In Jamaica to New- York, on wkich 3500 doMara were under- 
written by this office. Proof of p*roperty| 'tl\at ahe aailed on the 
▼ojrage inaured, and waa loat aa «ta|iadf was given. 

It appeared in evidence, that the Hound, being the property 
of the plaintiff8| waa captured on her outward voyage, was car- 
ried into KiAgaton^ condeniiied and sold, and purchased, at the 
U»tance of the captain, by Campbell Be O'Harrow, for the plain* 
tiffs, for about 3060 dollars; w^io also paid about 1100 dollars 
for her outfits to New York, and about the same ^um finr the 
expenses of defending the claim. CaiApbell & O'Harrow took 
a bottomjy bond on the Teasel, to secure the aboTe sums, and 
wrote to th^ir correspondent in Philadelphia, mentioning that 
they had bought, the veaael for the plaintiffs, much below her 
Tidue> and had advanced as above; and ordering 5000 dollars to 


be insured on her, 'which waa effected in the Phcenix Com- 
pany. This loss has been paid by them* Evidence was given 
to prove that the vessel^ when she left New-York, was worth 
about 7000 dollara. 

The only queation was, .whether the value of the vessel ex- 
ceeded the 500Q ^dollars paid by th^ Phcenix Company ; be- 


Snell et al. «t. Tlie DehwiM InRBmnee Compttif . 

cause ; if it did not, it was agreed that the pUuntiffs could not 
recover any thing in this suit, for the value of their resulting 

Condy afi'd Rawle for the defendants, contended, that the price 
at which the vessel sold at Kingston, u the only criterion of 
her value, which, after adding the outfits, amounted to only 
4122 dollars. The costs of defending the claim, though pro- 
perly insurable by Campbell 8c O'Harrow, could add nothing to 
the value of the vesseU^ To prove that the prime cost or in 
voice furnishes the criterion of value, as to the cargOy they 
read Park, 98. 104. ■ 

Dallas, for the plaintHT, insisted, that, though the rule men- 
tioned was applicable to goods, it was not so to the vessel ; if 
it were, it would operate, in general, more'agaiust the under- 
writer than the assured. He cited 3 Marsh. 535. Millar, 247. 
251. 264. 2 N. York Rep. 23. 

WASHING TOJSr^ /., charged the jury. The foundation of 
all insurances, unlesii of th^ wager kind, is the real vahte of 
the thing insured;- and the only difference, between a valued 
and an open policy, is, that, in the first, the parties agree upon 
the value ; and in the latter, the assured is bound to prove it. 
But, a new principle is now attempted to be introduced; 
• namely, that the prime cost, instead of the real value, is to be 
the measure of the indemnity. 

The prime cost, or invoice price, may, in'most caaeS|beykriM« 
facie a very proper criterion > and, in the case of goods, the biter 
is the proper measure of the value. The assured cannot object 
to it, because the invoice is tantamouift to an' agreement on his 
part, thatjhat is the value; and it must, in all casea, be so 
near to the value, that it Is very properiy considered as the cri« 
terion. * But, as to the prime cost, thb may often vary very 
considerably ffbm the invoice price ; for instance, a cargo of 
flour may, wheii shipped and invoiced, -be worth donble as 
much as it cost ; and, can it Jl>e contended^ in such a case, that 



Snell et al. w. The Debiwire faniifuice Compuiy. 

the prime cost would furnish the rule ? Equally unjust, and 
repugniCnt to the principle of insurance, would it be to say, 
that, if a vessel be really worth twice as much as the owner 
gave for her, that the latter should be the criterion of value. 
If the prime cost is to furnish the rule, then, whe& the builder "^ 
of a vessel insures, he must prove not what was her value, but ^ 
what she cost him. 

The prime cost is a good rule, where no better is furnished ; 
and, as- in this case there is no proof of her real value in Ja- 
maica, the jury may probably adopt the sum at which she sold, 
as the value of her. But^ if they, from the evidence, are satis- 
fied tHat she was worth more^ they are not bound by. what was 
given for her. I will add frrther, that the rule cohtended for 
by these defendants, would, in mahy elites, operate most inju«' 
riously against underwriters. 

The jury found for the filaintjjlfi ufiwarda of 2300 dollars. 






Brown -0$, ionv Jaok&ov. 

Hie dcfendmt bdng indebted to the pluntiff in Lcmdon» ftr good^ tcnitted 
a bin of ezcfaABge, dmwnupon London^ in his &Tour» wbkh he cndened 
" pty the amount to order fbr m^ ute,^' The bill was not aooepted nor 
paid, and was Tetumed to the pfaontiff's agent, who demanded payment 
of the defendant, ss endoner. 

Such a special endonement relesses the endocqer fyam tii6 pigment of da* 
maget^ and prevents like negotiability of the bii. Tlie amoont of thebiH 
b to be received by the endonee» for the use of the endotser. 

If the endorsee b« *it a cse^tor of die endoner» then he is to reecire die 
money, and remit it) or if the bill n dishonoured, he is to return it 

In this ease^ the ^aintiff having receive^ the bill in payment of a debt dae 

" to him, was entitled to look to ev^y person responsible on tbe biO, in 
fike maimer as if he had boqgfat iSbh bill, with ezeeptton of a daim for 
damages on tile endorser. 

Quert^ whether the neglect of tfie plaintiff to give notice of non-eoceptance 
did not release the endoner. 


IlTDEBITATUS ASSUMPSIT for goods 8cc. md anoChei' 
count upon a bill of ^exchange.' T)ie defendant being indebted to 
tbe plaintiff) a mi^rchant in London^ for two separate shipments 
of goods, remitted W him in December 1804, a bill of exchange, 
drawn by Mr. Crawford, on Barclay &' Salkield, at Manches- 
ter, at uxty days, for the amount of the.]ast shipment of goods, 
and endorsed by the defendant in the following terms, viz. «pay 
the amount to Brown, or order, /or my U9e.*^ The bill waste- 
dorsed by the plaintiff, to Fox U Company of Manchester, who 
presented ^he bill to the drawees ; who, refusing to accept the 
same, it was noted on the 12th of February 1805, and was, pro* 
Vested for noo-pafment qn the 1 6th April. The. bill was accord- 
ingly returned to the plaintiff, who sent it forward hnmediately 
to Gardner of Philadelphia, to receive the amount of it, with 



OCTOBER T£RM, tft06. 413 

Brown fv. Jaek^oik 

damages «nd coaU, f#om the drawer and^ endorser. The bill 
w«A receiTed on the 10^ of iunoi and on tke same da^r nodcie 
was given to the drawer, and paymfnt of principal) damages, 8cc. 
demanded* On the next daj, botice was given to the defendant^ 
•lid the same demand made^ and that the defendant would be 
lield responsible for the bill. On the 19th, the agent of ths d«^ 
Ibndant) James Jackson, (he as well as the agent and drawer all 
living in l^hUadelphia,) wrote to Gardner, that be would not pay 
the damages; and that unless the bill was given up im that day^ 
lie should consider his principal discharged. Gardner immedi- 
ately requested to know the j^round on which th^ deiendant 
Infused to pay the damages, slid receiving no answer, he called 
bn JjEttaes JacksoO) and being satisfiedt from {iit nature of the 
bansaetkm between the plabtiff and defendant, that the da^ 
aiageiB oiuld not be demanded^ he waived themy and agreed to 
receive the principal «nd intereal'^ but James Jnekson saying 
that he was not prepared to pay the biU, offered anote^'with 
911 endorser, for the amount at ninety days, which was refused* 
It was proved by the drawer of the bill, that he stopped pay- 
haent about three ih the afternoon of the 1 lth> but he said that 
Be did nSt doubt but that he paid on the IQth. 

The count on the bill states, that notice of obn-accep^anc^ ' 
was given to drawer and endorser, but this was not proved. 

'Witnesses w«re offered to prov^ the custom in PliMadelphtiii 
&at Ih cases liko the present^ tbe endoBser is considered as dis« 
cl^ripsi ; bi|i the Court ^Ibsed to hear stt<b testimony^ 

I^ganofl and Bead, for* t|;^e de^danti admitted, that the 
iMntiff was entitled to recover fiH* the amount of the first ship- 
ment of goods, but that ke was'diadbarged as to the other; and 
that the plaintiff could not recover either on the origioal g^una 
of the ^ebt, or on the UU. That, the creditor, receiving a bill 
with a special endorsement, like the present, was to be consider- 
ed merely as the agent of the endora^ sod upon the pfotest| 
ought immediately to have returned the bill; but by reti|iDinf 
it) he bad made the debt his own, and cftuld ndt recover on tke 

6T •' • ' 




« V 


» *• 


" ■ • • \. ; ■ ' ■ ■ ■ ■ . — 

• ■ Brown tw. JaDkBdn. ^ 

bill against the endorser. They cited 1 Dall. 261. 2 Dall. 400. 
4 pall. 155. 

Washington J.y asked the counsel for the defendant, if the 
plaintiff could, in a separate actipn, recover on this bill,^ against 
the defendant, could he recover in this action 1 

Mr. Ingersbll admitted that he could; except that in this 
action the declaration averred notice of non-acceptance, which 
was not proved. The plaintiff therefore could not recover, in 
consequence of his negligence in not giving notice of non-ac- 
ceptan(^e. It is necessary to ptx)test for non-acceptance, and to 
^ive notice, 2 T. Rep. 717, 718. -If the'agent retains the bill, 
it is so much money in his hands, and is a payment of so much. 

Washington J. What circumstance is it, which constitutes 
this so much money in the hands of, the agent ? And is he 
further or. otherwise liable, than, for neglect in not returning 
the bill ? 

Ir^gersoll. The negotiating the bill pr6duces this effect. 

Levy and Dallas, for plaintiff, insisted, that the plaintiff was 
not an agent of the defendant, but had an interest, in the bill, 
and was entitled to claim against the drawer and endorser. 
That nothing done by him, made this bill a paym^ent of the ori^ 
. ginal debt; but that if it did, still the plaintiff might recover on 
the count on the bill. That notice of non-acceptance was not 
necessary, Barry and Brown, 3 Dall. And as to the notice 
laid in the declaration, it was mere surplusage, and need not b^ 

proved. . * * ' 


WASHmc TO.Y, J,y chMged the jury. It is difficult to p«-. 
ccive, upon what principle, of law or justice, it can be contend- 
ed, that the defendant is neither liable on the ground of the ori- 
ginal debt, nor on the bill.* The defendant, was once indebted 
in this sum to the plaintiff, and remitted this bill for the pur- 
pose of paying it when collected. The fiill has been duly pre- 
sented; protested, and atiemand of payment made in proper time. 
Neither the original dfbt nor the bill has'been paid by the de- 



Brown f». iackson. 


feadant/and It seems strange to iay, that the defendant is alto- 
g^diier d}8<!harged. 'Independent of the gl«ring injustice, at first 
view, of this doctrine, it would be mischievous in the highest 
degree, if it 6e founded ; since* no creditor would accept a bill 
of tfitt kind from his debtor, but would either demand pa;^ment 
at«i&nce, or insist upon a bilf which should entitle him, in case 
it was dishonoured, to claim as well damages as the principal. 
What is the nattire of such a special endorsement as the pre- 
sent ? It prevents the negotiability of the btlT, and amounts to 
a declaration, \hat in ease the bill is protested, no damages are 
to be recovered. The money is to bfc received "for the use of • 
the endorser ; but how it is to be applied^ is a inatter between 
t)\e endorser and the endorsee, If the endorsee be not a credit- 
or, then he is to receive the money aAd remit it ; 6t if the bill ' 
be dishonoured, he is to return it. If he be a creditor, then of 
course he is to apply the money to tl\e credit tif the endorser. 
The latter was this case, and is prov^, not Only by the letter 
which accompanied the bill, but from the conduct of lames 
. JMtson, who never objected to the liability of the endorser to 
^Kthe bill; refusing only to pay the damages. 
■ «S(t Suppose the- plaintiff was a mere agent. If he negotiated 
« Ae DJ31, sup^^taing it had been endorsed generally, then I ad- 
mit he was tf receiver of so much money to the Use of the en- 
dprser. Bui on the protest of the bill, he was obliged to repay ' 
the money, Mid consequently, was placed exactly in his original 
sitttcuieli ; and though he might be responsible for neglect, in 
.ant rtetttming the h^\% tiif^e, yet he could- not be said to be a 
teearev of 90 much moi^ey, to the -o^e of the defendant. But 
this bill not being nsfgotiable, Hie endorsee can only be consi- 
de^edbas his agenl'to receive the money ffOni the drawee. If 
h^ is to be considered as having made the bill bis own, then he 
has all the rights of anendt ^ee, unless lie has fetfeited all re- 
course against the drawer ai^ endorser, ^ neglecting to give • 
notice of the non-acceptance ; and Ii6ls entitled to recoter on 
the bill. ' • • • * •* ^- 





' Brown tw.' JacVson. 
: ■— 1 ; : — 

But the ifxx. isi th* bill vas reqiitted bf a debtor tb.hl* ere- 

dltor^ and so as ta he conM4fr«d as a pajinent when H. was 

• paid.. If not paid, he was eQtiUed to look to eTery persoQ li|44ft' 
oa the billy as drawer and endorser, ia. the. same maimer uif he 
had paid so much money &r it. If he talbes the bill as payqi^ti^ 
0r ^7 his. conduct is considered aa having sd uhen it, aaif Iw. 
retains it an mureasonable time, c^r niigo^te's it and reccivea . 
the^ awpnnt of it, as in Johnson and Harris,, in the Sapremo 
C^urt ; then he caimot sue for the original debt, but he may 
sue the drawer, and all the endorsers, on titie bin* His authori^ 
ty is to receive' payment.of the bilL Fnm w^om ? Piom all 
who are liable to pay it. . WHo are they ? The draw^ci, if he ac<* 
cepta, or the drawer or cndorsei^, wf^o impitiedly agree to pay . 
if the drawee do not. Thf conduct, th^efore^ of the plaintifl^ 
in demanding the amount of this bill from the drawer^ and bona 
the defipndan^ was^ within his Authority \ and consequeotlj^ it 
did not compel him to take the bill as payment* The lull was 
merely^ a collateral security, and so would haYe,beeh a £romiBv 
sory note, i^ on demanding payment from the plai|)tiff,'he had. 
given one. Neither wo^ld have bee^i considered as a payment*' 
But It is immaterial to consider, whether the bill was a pay* 

' ment or not. If a payment, then the plaintiff mif reco^^r q|^ 
the count4n the bill ; if not a payment, then he may recover 
op the count for goods sold and delivered, 
i But, as it is mnde a poinW that the defendant is^diachargedt 
bjr the ft^glect of the plaintiff to give notice of the QOiH(IEC<{ia« 
ance* which may he ap important ^eestioo \ and also, ||M no« 
tice being averred and not proved, a recovery cannot be had oa 
the. count on the bilU the jury mu&t find f)^tbe plaiiitiff on the 
lif^t coont, the amount of the first shipment, which ia iio| di^ 
puted ; and on th^ second, the amount of the biil> subject to 
•the opinion of the Coujrt oa these pomts* ' 

The jury, found far the plaintiff^ vhg, stipposhig he could 
prove Botice, contented to a new trial, as to the amount of the 

• biUi thOvdefiMUfa^t agreemg he attight aver loa declaration. 

<»ctoMft imi *■ tm. 





Joy et al. vt. Wietk ex al. 

The o»mp]pi|MQts ii]t the bin, wei« all a»tizeiis of uiatbet' State. To tbia 
biUv there ww a plea to the, jiuudiction of the Courts alegii^ the want 
-of jmifldictioiH becauae one creditor waa aot jomed in the bill. Held«, 
that the Ooort had Jariadiction of the caae. 

In chancety, there ll a ^atineCkm b c tarecn acrtne and pamoe paHieaf thfe 
fomer beita^ audi aa are ao uifdh^^ in the aofaj^ert is aamtraven^ ai^ 
lliaft no decree out be made withaagt tiieir beitf m Coaat; Aektter am 
i9oht aa Ihat oop^^lete lefief can. ha.i[V(m^tQ Hkwi nOim^mlf^'^wUm^ 
afieotingthe.intereataof the^g^aaiFe^piirtiea^ ^ 

If a decaree can t>e made, without affecting the nf^Xt^ of a petaon not made 
ajHurty» or without tua ha^ng any thing to peifon^ n^ceaaa^ to the per- 
fection of the decree ; the Court wiH pfeoeed wittiout him, if he be ntt 
atoenable to the proceaa of the Court, or no beneMal pmfpoae is to be 
el&Gted byxnaldog ha^a party. 

Ther^hnotdUfaKmp. betf3eciiap<MoaiWhok cii.aMHMlof hpaiWMlence 
b^end aei% cannot be SMdA apfRreatahte^ to thft proceaa of the CoQit, and : 
<xie whe^ by tiie kw^ of th^ United 8tiite%.caoiiat be broofht into Conrt4 
aodwheferer, in the fotmer oaae, a pevson, ao circamatanced, need not 
fie made a party, he need not be made a party in Uie latter case. 

Care wiQ be taken not to make a decree, which wiU stBtct the person who 
is nonparty to tesist. 

TTbIS case was tritd at the last Wem, ob a danliiftaf, fb^vant 
(if parliet* (0) The conqilakiBBto amraiiM ttair bOlf bf orak* 
* itig all the felaton eomplkfaiaiitB^ except A. Dubois, a dtiaan 
of PeoQi^ilvaiiia* A plea ma plit in, tfitika^ tUa m butf u 
which there waa a deikttrrer; 


It was argued by Lewi^ and T^lghmaa^lbr the ptatetU^ Ihat, 
though all the cfedkers joined in tke releM^ yetf tliey ex^ 


• c 


5I« PfiNNSY^iVANlA, "^ 

Joy et al. vt. Wirtz iSt al. 

presaly released each for himself^ and Hot for the othfers. Of 
course they were not connected' in interest ; there was no pti- 
Tity ; and eihch night be released without the othero. But, at 
any rate, Dubois not being permitted to sue in this Court, being 
a citizen of Pennsylvania, there i^ no necessity to make htm a 
party, any more than if he was beymid the reach of the process' 
of the Court; and that, whenever a person is not amenable to 
the process of the Court, he need not be nflide a ^arty. So 
in many other cases. 1 £q. Ca. Ab. -72, 73, 74. 2 Idem, 166. 
2 Atk. 510. Finchi 112. Prcc. inCh. 99. Mitf. 52, 3. Free, in 
Ch. 59Q. I Ch. Cas. 35. 1 Atk. 282. P. Was. 33. -Hinds. 
Prac. 15 U 

WASHlJ^fG^OJ^^ y., dfelivered the opinion of the Court. 
When this cause was heard at the last term, on demurrer for 
want of parties, the Court did no more than sustain the de- 
murrer, and direct proper parties to be made. All those who 
executed the release,- have since beep made complainants, ex- 
cept Abraham Dubois, a citizen of Pennsylvania; and his not 
being made a party, is the subject of a plea, which is now to 
be decided upon. ^ In support of the plea, it is contended, that 
the Court cannol make a decree, without having all the par- 
ties, who united, themselves together l)y the r<ileasei before 
them ; and that to proceed, without making all releasors par- 
ties, would be to violate one of the fixisd principles of k Court 
of /equity, which professes to prevent multiplicity t>f suits. It 
is ad«iitted, that Duboia cannot be made a party ; bat this is 
urgeii AS a r^aM% why the suit lis improperly brought in this 

« In deciding whp ought to he- pvties, it is necessary to dis- . 
tbigaish between active and fiaaHve parties ; between those 
* who ai« ao aecessarilf ivrolved in the subject in controversy, 
and the relief sought fi>r« that n6 decree cat be ma4e without 
their being before thejCourt; and such as are formal, or so far 
pasdhFOi thatlkompiete relief cm be those who seek 

t k 




Joy et aL w, WirU et al. 



i(»jij|NKtjA«d^ Tie 

with tlie nd% wiLivilk a {«jbrpi|g-,ttftitaiiioi^of it* A sMsnA 
UMitgagee iMQuislit a ImU .«(Aiiiftt the filttt, to iMeeni) without 
making the heir of the mDrtgagfor^a party^ who was stated to 
.he real^Bt vol i^M^h^ coimtnF* An ohiection fcr want of por^ 
ties hei^s^ jnade, (^ Chaineellor efafierTed, that there was a diflr 
tiiicticii|.as ta proceeding in^jthe ahs6nee of parties abroad, be- 
tween their heing active Bhd, paasire t that the mortgagpr, or 
his heir, cannot be eottisideredl as a passive pmty ; because, the 
decree is, .tliat thi^, second BUMAgagee. jdiaO .lede^n the fitH^' 
and that the mortgagor redeem him, or stand foreclosed on this 
acootmt ; the iQortgager 6r»bia heir, being an active party, the 
Cbiirt o6&not proceed withoiil hfao } a^d 1|» being a p«ity- can- 
not be dispJEinsed with, though he is> not- iUfCnaiile tm the pro^ 
<;es8 of the Court. Many other cases r might be»meiftM>ned^ 
equally strong with that just cited; anf) m^dl of them, the 
rule is so stubborn, that I doul^t, if, under any ckcumstances, 
it can be made to bend to the plea of peeeasity. But, if a de- 
' cree can be mad^ without affecting the rights of a person not 
made a party,* or without his having any thing to perform ne- 
cMftary to the perfection of the decree^; reason, as well - as ad* 
judged cases, will warrant the Court in jiroce^ding without 
^ hitfi, ff he be not amenable to the process of the Court, or no 
beneficial purpose^is to be effected by making him a party. 

The object ef a Cotirt^ of equity is to prevent a multiplicity 
^ sul^ to do complete jusdce, and to maibe the performance 
of its decrees safe to thoso who must obey them. Hence re- 
sults the rule, that ail persons concerned in the demand in the 
. question iu di^mte, must be made parties. But ^s rule is 
not so inflexible, that, to p*eBervef it, the Court will, not deny 
relief to those entitled to seek, it, .becauee there are others, who 
cannot be made parties', and who need not be so, otherwise than 
for the sak6 of principle, 6xk which the rule is founded* This 
would be to make the great 9fiA primary objects of this Court, 




$ ' Joy et ales. Vktt<ot«l. 

tM th<^ cwt €to<» »pp^ » 4tt fei »!aaitt . B«l, ^^ eMs &e tii^ 
yMtiBt cottM •c«pr IB EnglMlf Md dte m — irffllose cttet,- 
«i applictblc to defiendants, \» e^«i]l]r itfoBg Hrfccn ai^Htod td 
those who ^ve cswipilftimuita. • . 

I shall only adM) that thare a» in MmO) te iSfSlMce hth 
tween a person, who, on acciHiiil of his i^sMenct beyond 8ea% 
cannot be made ansWerable to tiie ^isesB of the Coorti and eih 
who, by the lawi of the Vnited States, csnoot be brought into 
this CoQit; and that whererer, ia Uke IbHAer cadei a person ao 
circumstanced a»6d pot be auuie a (^arty, Ito Med not be mad6 
a party ki tba latter case. 

The Court will take care te iiiAke no. dteree to rfbct Mf « 
Dubma $ aid a cemflete deolise inay \ft made, withont his be- * 
iog a paitjr. Attbosaeaa ttai^ to prevent ntuhipUcity of suita^ 
it wonld be proper to make hitn a party, if the Coart couM 
make a deoee iw •r igeittat hip. 

. ^ 

OCtOBEft TERM, 1806. 591 

J^i^M>Al«» !■> ■■ 

Oowqam w. LAiui«rbnni« 

Tile CiMift allowed tBe mtere^ cufltonuiry atCafitoD^ upon ft note ejCficuted 

X HIS iiction wsis brought on a promissory tiote» given in 
' CantoD) payaibl^ eighteen montht after date, without stipulating 
any thing.fibout interest. , 

The delendant took out a conunisaiony eighteen montha 
agOy to examin^^ the hooka of ttie plaintiff. When the cata^ 
miaaionera opened the cemviiaaion) about tweire moniha l^[;0} 
the plaintiff waa absent fieom Canton, so that the commission 
not being returned to the last Court, the cause was continued. 
A motion was again made to this Court, to continue the ca^st; 
but as no reason waa given, why the commission waa not e^e- 
cuied, the Court thought there waa no aufiicleni reason aaaign^ 
ed for the condnuanc^^ but upon theolRnr of the plahitlff, 
oMKle before the opinioA'of the Court waa known, to continuci 
on receiving a judgment and decurtty for the debt ) the Court 
directed, accordit/gly, exeaution to be stayed, and gave leitve to 
move^ next term, to aet aside the judgpient, if the commiaaioa 
beihg returned ahould aibrd a reason for doing ao. A question 
then nroae, what.mterest should be a^wed ? After examining a 
aufnl)er of w^tneases^.the Court waa of opinion^ that twelve per 
eent^per annum ahould be allowed, from ^the expir.ation of the 
tij;hCeen montha; no prwif l^g gtveiMy what ia vbe legal intereat 
at Cantoojor whether any ia, &x«d ikj^ law. Butjt appears^ that 
the customary interest of the countryy where np special agree* 
ment ia made to vary it, is one per cent, a monthf from the ex* 
piration of the caedU. Many instancea have been proved, wbert 
more and leaa has been stipulated in the notes escecuted m Can- 
ton ; bih all thoae cases seem to be departurea frovi the fegulat 
and established >ateo£mtere9t, founded on special agreenenta. 

3U ' . . ' 


Brig TiTphema cf . HMnson. 


Brig' Trtpuenia v^, Harrisok. 

Libel in the nature of an information* for a violation of the Act of Congress, 
prohibiting the slave trade. 

The vessel, the^propertjr of a citizen of the Uiuted States, being it St. Tho- 
ttas; took on board, as passengers, two. ladies,' with some slaves, thttr 
domestic servvnts, for all of whom the pri<^ of their passage was paid at 
Hsraoftf wfaeie the ladies and their slaves wefe landed. The slaves wete 
not anied for sale, nor in any other nwoncr than as the prapeity of the 
ladica, and as their attendants. 

Held, that the law of the United States, passed 22d March 1794> «i» intendp 
ed to prohibit any citixen or resident of the United States Jrem ^(fl^ippi^ 
MwZv wiikin the United Stafe^, to cany on trade ortraflic in slaves to any 
foreign country. ' / 

The kw of 10th May 1800, extends the proMbitions to citizens of the United 
States, in anf/ rmttmef conofam«d in thb kin^l Vif tnffio^ personal 
service on board of AmericaB or foreign vessels, wherever equipped; and 
to the owners of such v^sseljiy citizens of the United States. 

The provisions of tliose laws, were not intended to apply to a case, where 
slaves are carried froin one forcigfn port to 'another as passejigen^ and not 
* TC/t sate. 

1 HIS was an appeal, fir o forma, from the District Court. K 
was a libel, in the nature of an information, against the brig, for 
a violation of the A at of €k>neress of the 2 2d of March 1794, 
prohibiting the^Iav^ trade fh)|n' thb United States to fprel^ 
eoi|iiCrie8. ' Tt|e answer .and clainr of Croudllat, the owner of 
the brig, denied that the brig had been engaged in carrying on 
trade or tramc in slaves ; and in opposition to the particular 
charge Idid in tKb libel, of transporting slaves from St. gliomas 
to the Havana, Uated; that the slaves were the property of two 
French ladie&, taken on board the brig at St. tfhomas, and car- 
ried to th« Havana, who paid the price of passage for them- 
selves and their alaves ; and that they were not^carried for sale 


OCTOBBi^ tERBf, 1806. 




Bi^ TYyptaciihi iw> Hsrrison. 

or tnAtf^ but ib the s«rvMitB, or^iMeiid^s of tho^e ^Msengers. 
The answer wts fuHy auppovtetl, by the eVklencb of the twa 
lady passengers) the snpra^cargo, and'snotlier witness. 

Lewis ami Ra^le, ft>r the api>etaeQ, insisted, that whaterer 
might be the cofwtnKti^n of^e Act of 179^4, the Act of 10t)i 
May \B00j prohiUts tha eran^frortation of slaves from one fo- 
reign cmiAtry to another ; and that ip tfits ease ft Is admitted^ 
that t]^ slares in question, were carried from St. Thomas to 
the Havana. That the last law was intended to go rhuoti far- 
ther than the first, in order to render a violation of its prori- 
sions more dlftcolt,to h0 effected. 

iBgeM^fH and Dopoaeead) ft>r the appellants, contended ; that 
the two laws were to be construed together, and that th^obvi- 
ous intention of bbtb was,' te interdict the carrying starves froib 
^e country to another, with a view to traffic ; and that no such 
tfftding was proved in this ca»e, but the contrary. 

W^SHIJfGTOM, J. No persotv can daubt, b^t that the 
Act of ir»4J«ras inteodM to'pf«^tah imy ^iiien of, or resident 
'ill the United l|tat€fs, from equipping vessels within the United 
States, with a Viesr'to carrying iin4he trade or traffic in slaves, 
to any 'l»rei^ eountiy. Bdt, as thhiaw was confined to vessels 
equipped in tUe United-^^tes lor tlihi»{Mrpese| and it might be 
difficult to prove that such was the intention of the equipment, 
and indeed the' provkions ef thk law did not reach the mis- 
chief, since citizens of the United States might, without such 
equipments, •centrtbute kk other ways to* carrying on this inhu- 
man Mid uq|astifiAble tra^c; the Act of 1800 was passed in ad- 
dition to tha former Acts, and extends the prohibiiion to citizens 
qC the U^ted States, in any manner concerned iir this kind of 
tr^c, either by personal service on ISoard of Ameritan, or ^-i 
reign vessels^ wherever equipped ; jsnd also, to the owners bf 
such vessdis. The words of this last law, I, admit, are so gene- 
ral as to Q3(tend to the case of transporting slaves from one fo- 
reign country to another ; but this law must be construed in 





■■ V 

Ung 'tiTphenia w. (lanifloai 

coonectioii .with the formery which ww not iDlendei to 
ft new Afibject, but to rcndfr th'o ibrmer law moco effectuftly' iir ' 
prohibiting the tlave trade. "If a doubt could exist on thia sub** 
ject> it ia cleared up by the la\ter law ; wl|ich# diflering Grom the 
aecood only aa to the Tewel on board .of which the citisen has 
served) immediately varies the eB|iresaiqiit tnd apcaks not of » 
Teasel emplofed, io carrying daves frofB one cmuitry to sii« 
other, but of ooe employed in the mIuvc trade • 

Whatever may be the true eooatniction of these laws, as to 
the carrying alave^ from ooe country to another, even ibr sale; 
I very much queation, if it waa in thai coptenytaiUoii of Con* 
gross, to go farther than to prohibit A^nericiuo dtiiMoa from 
carryiog on this trade from AfrieSf or.4»chtr GOttntfk% so as to 
t^iiMga to riavery, those who were free in their own coostry. 
This was li^udable. But why should Congress prohibit the car- 
rying persons, already slaves in one of the West India idaiMlsy 
to be sold in another ? The situation of these unfortunate pei^ 
sons, cannot be reoderodu vorao by this change of sitMiioB and 
Siasters. Thisi however, is a, mere sngysstioo aa to dhe pio» 
hable intentioo of the Ix^gidature* The ooostruetloo of tho * 
two laws may possibly forpe us to a different condusioo. At 
any rate, Aeither of the laws extend to the presont casei at being 
, ckar^ proved, that tbo negroes in ^a ea rio ai m^gft not c«nied 
to the Havana for aak. 

Sentfnee rsver4€49 fnd flaim $ uii §f tm 4* 

• ■ 


* • 

OCTOttn TERM, l«M. 



Dehacef m M'Kecft. 




Accordinif to the true construction of the law of Pennsyhruiia of. 1715, rel«-^ 
tite to the recording of deeds, the deed should be recorded in tiie county 
where the knd lies. But if a deed conveys bad* Yfing 'm ditbamA oaon* 
ties, ^kv does iloC require llMilstian be fieoi)dedb«ic3ti^^ It 
^b soficieiit if*it be leeofded in one of the t iMM«t% ead ^mh the esem- 
fpiaeslkai 0^ it eii be eridenee ia to ei7 ef the fceda eenecyed. And 
. tiib 4 unrti'ttctjoe. of the km m wpported hf the i»ectioe and t«nt ^pro« 

; bation of the bench and bar, aa cleaHy proired to the Court 

Until the Act of 1778^ thete waa ne absolute necesnty to reoord deeda at aO, 
except mortgages; and this lew was passed for flie proteotioB of oe^tors 
and subsequent purchaserB. 

The proviaonsof fl^ Aetef ITIi; wete eieieljr Ittteeded for tfM pieterve- 
*Meii sQw sale Keepini^ei sbeos* 

Qmp% wfaaHberK^ lytot'awbs'mienH yitnheerwy wkheutJtotice, the exem* 
|p|» of a deed Ibr ]«i4e in moee thaii ene couirtr, and wM<^ 

. not been avoided in the oouety where Hie lands were situated, would be 
evidence. * ' '. 

X HIS case Mne oii| hikui » point reeefr^^ at the' last Court, 
vheth^r the exemplificaHiDO ot the debd^ from Allen to Delan- 
cef) ex^ttted in 1771| pioved.befortc a justice of the Supreme 
iCaif rt io 1772, and recorded id the county of Philadelphia in 
1 7731 cbuid be ofered ia eTideiv^e* 

M7er% Fisher Ei%9 wiis cawoitu^d; who prov^, that he had 
b^ta) ior maBf^iEears be^re the retoluttonaiy war« a practitioner 
at tbe bar;. Aad siaoe acted mi a scrfyener and counsel; and 
Itet it waa alvs^a commony wher^ deeds contained lapds in 
Pbiladelpbia county^ and in other parts of tlie State^ torepord 
them in F^ilade^hia county; and that the exemplificHtion of 
tlMm, wae always considered and read ift eTidence, <m trials for 
laodiid oilier cooBties. Thai it was always considered as gy^d 


.Delancey t». V'Keen. 


eTidence, and admitted without objection. That he never knew 
. or heard a doulx suggested upon the subject. Mr. Levis, an 
old practitioner, produced nkany deeds of this sort, recorded in 
the same way; and mentioned from his briefs H great variety of 
cases, where exemplificationB, simiUr to the present, were read 
in evidence, without objection. Ju4ge Petefs liilly confirmed 
this practice ; and they all concurred in stating, that, to their 
knowledge, the propriety of admitting such evidence had never 
been questioned. They 9il dtficurMd likewise in atadng, that 
these deeds were aonetimes proved befbre a justice of the Su- 
, preme Court, and sometimes before a justice of the Common 
Pleas; and either was' considered e(|utilly valid. In a suit 
. brought by the husband of the plaintiff, for this very land,' 
shortly after the peace, in the State Court, befor.e Chief Justice 
M'Kean, this very exemplification was read in evidence, with- 
out objectioQ. Governor M'Kean gaT« a certifi€:^te, that he 
had always considered that it was necessary to record, the deed * 
in the county where the famd' Uiy,'«ndnhftt this was the genenl 
opinion ; but he never knew the point mad^, nor does he state 
how the case would be, if part of the lands lay in the county 
where the deed was recorded. 

M'Kean and Daljas, for defendant, arguecf, that the clear eJK ' 
position of the Act of 1715, was, that the deed Should be re- 
corded where the land lies ; and that if any doubts on ,this point 
could exist, the 8th.section is conclusive. That if not proved 
before a justice of peace, in the county loihere the (md ffet^i 
(whereas this was proved before a judge of the Siipreme Court, 
Who is not a justice in the county,) it 'could not be recorded ' 
any where ; and if not recorded in the county wh^ere the land 
lies, the officer Is* not authorized' to record it, and/bf course hift 
exenriplification h not evidence ; but the original deed should * 
have been proved' in the common form ; or a copy, proved to 
have been examined, might have answered. Gilb. Evd. 24. to 
^6. Peake^sEvd. 24. 1' Burr. 445. 6 Bae. 383. 

Tilghman and Lewis, for the plaintiff, relied upon the^gene- 





Dcbncey. wa. M'Keen.* 

ral ptacdoe, i» t» proving and i«oo«dil% d«|4l 9 Jod the unva- 
rying <»pinion respecting the exenptffiealiQn of tbenik Thej ready 
1 Deli. 1 1 , 17, to shoW) where a coannoQ error, a»to the convey- 
ance, 'bf zfeme rover/, of her real estate, had been sanctioned. 
Thej contended, that the <leed being proved in one of the conn* 
ties where soi^ of the ]anda']ay> the exeni|>Uficatioo ia e videapce) 
by the fourth section of the law; whatever might be the coni- 
atniG^tioD of the law,'if none of the ^ands, conveyed by the deed, 
had been situated in the ceonty of P|uladelphia« 

WjiSHIJ^tOTOJ^^ J. I have no donbt, but that, accoiding 
to the true construction of the Act of 171 5, the deed should be 
reeorded in the county where the land lies ; but, if the deed 
conveyed, lands lying in different counties, the law does not re* 
9«ili% the deed to be recorded in each county, either by the 
words or tbe intdnli6B,of*it, so far as this intention can be dis* 
covered. Until the Act of 1775, there was no absolute neces* 
ttty tot record 'any deeds, mortgages excepted ; and the provi- 
sion made by the* law of 1715^ for recording them, was merely 
made with a view to their preservalion. This is manifestfrooa 
the Act of 1775 ; wl^h was passed, -with a view U> -protect the 
lights.- of subsequent puvch«9ers against secret deed^,' which 
«lhe grantees might have kept in their pockets for years; with- ' 
out the possttillity of subsequent purchasers, and creditors, 
knowing of> their existence* If this were the case, then there 
wiia fvo' absolute necessity, at .that time, to require that a deed) 
if veeordedv sheuM be recorded* in every couifty in which there 
were lands conveyBd by the deed ;* because, ,tbe recording the 
deed in any one county, was bettering the situation of subse- 
<(uen^ purchasers; and the law had no view to them at all, that 
I can petceive. 

• It is, hewever, perfectly clear, that the deed might legally be 
recorded in the ofHce of the county where part of the lauds lay ^ 
and that g,uoad that law, the exemplificatioit was eyidenccr 
The public '^fiicer was instructed and cbmiuaHded to record 


and to exempliiy it. 11^ irvm bdfi^ the ocmplificadMi of t 
sworn public officeff it wm evidence liJi to the leads Ifing in 
his.countjr, upon what principle should it not be evidence as 
to lands conveyed by the same deed^ ^y^S ^ other ceontiest 
prroved in the saoM way* and recorded by the eame officer ? I 
can see no reason why his ezerapUfication shouU give credit 
and authenticity -to his copy in one case^ and not in the other. 
But* as soon' as the attemion of the Lef^sUtaie was drawn to 
the frauds, practised by secret conveyi^es upoa subsequetft 
purchasers and creditors, and the necessity was perceived of 
giving notoriety to all conveyances ; it naturaMy followed, that 
such deeds should be recorded, as a matter of eonipiilsioni or 
that the grantee should be postponed to fairi b^na-JkUf md 
subsequent purchasers* But, what influences my opsnioa aote 
than any thing else, is, that Courts, lawyen, conveyancerSf and 
all others, seemed to have concurred in the opinkjD, that the 
eKemplificatkms of deeds, like the present, recorded as* this was» 
were evidence. If one solitary decision^ affirming this practicei . 
had taken place, all would have agreed^ that it would bind itai 
and yet the uniformity of practice and of ccmdnctf respecting 
such deeds, operates more powerfolly.with me; because they 
simount to a contemporaneous exposition* of the Act of 1715, 
^^ fortified by a subsequent, unvalTing usage. The practice is» 
incorporated with the land titles of this State ; *and, if it be an 
error, it is common and uniform ; and a decisiMi now against 
the practice, would be mischievous in the entremei J am 
thMefore of opinion, that the esemt^ilification of this dead was 
J^roperly admitted, aftd that judgmmt should be for pluntiff. 
Feter^i /., concurred, (a) 

(a) This cate wm csrried by writ of enor to tlie Supreme Coox^ and the 
following pomtt were decided by that Court : 

1st Under the Actof Pennsylvania, of 1775« which requires a deed to be 
acknowledged before a JutHce oftiU Peaett of the county where the taitds 
fie» it having beea the long estabHshed practice, before the year 1775« to 
acfaowledge deeds before a /iM/ice V*<ftc 'S^Vnms Cierf of d» ptefmoe tf 






M^^vV^^^^W^V^F ^^^^ ^^H» ^Hp^^^PflV 


Mr. Dallas asked if the Court nlo^t to say, thkt if a deed 
for lands lying in different counties, made and recorded siace 
177 5y in one county, ivould be good as to lands lying in other 
counties ; aod» tkajt* an exempliicatioii wfmld be evidence, as 
to such lands ; because the Act «f \7t$ does not in terms re^ 
quire Mich deed to be reoorded iii each county. 

JBy the Court. We give no opinion on this point; it is not 
before us. There mighty in the case supposed, be a distinction 
between the validity of such a deed against sttbsel|aeQl pur- 
chasers of lands lying in a county, where the deed n^te not re- 
«orded, and the ^emphfication of the deed. Bat ^e give no 
opinion on the point. 

Judgment J^ piaimUgti 

tsBPsybpsiaSt sidl nWrnsfh die Act of 1315 does net suthoose sach a 
piactice, yet, as it has fMcvsSksdi it is to be corfilderad ss scomct conitrMC* 
tkm of the italate. 

Sd. In construing the flUtatea* of a State, on which land titles dependj 
infinite nnachief sr^nU ensue, dhould tiib Court dMerre s difierent nde 
ftoBS tiM wldcli hS8 bem losg esliaUUKca in theStatei and, in this case, 
lie Court eoold net devb^ tiatt11ttie«B«s«lf Peon^lvsaiscomideralas- 
tlf^ of the SupienriOeHElijnitliinliiMMri^^ 

3d, Under OeifnaeAol, when a4is«ktnMst of land is.eon«(gM« the Ipiv 
nefiiirea the deed to be .rtcordsd ia the offiee of the county in which the 
land lies ; b|^t, if sevetal tracts be conveyed, nether the letter nor the spirit 
of the Act, requires that the deed shall be recorded in each county. If the 
d^ed WIS recorded in the county where S jfurl of the huids lie^ an exenpfi- 
fieStion is good evidence, aa to the knds in the elkst counties. 

OMerllkeAfltefiyiJ^thesaiidi^of iMdeedis notaflected bye^ic* 
diy tofeeord it Thomh not recovde<^ it is gtiD bia4ing» to eveiy intsaC 
and purpose wbatsoeve|pc The only legal effeot^^noduoed by reeordiiQf it^ 
iaili pitaervation, by making a copy equal to the original. 5 Crancb, 33. 
;n. tirbartcm's Digest, 246. 


•% / 




Hurtin w. The^ Union Insofwioe Company. 

HuRTiw V*. T&E Unkjw Insurance Gompant. 

If tke cargo shipped* is not carried to tli^ p^pe of its destination^ opfie^t 
can be demanded ; if vohmtanly accepted by the owner or lus agent at 
any other port, freight pro rata is due ; but iflt is received by compuLdon^ 
and the supm-cargo or captain, acting for the benefit of all, receives the 
]^vt>ceeds &ereof| no freight is earned or due. 

X HIS was a case agreed. The insurance waa made on tte 
freight of the same vessel, the Monongahela Farmer, (valued 
at 3,000 dollars ;) on which a policy was effected, anH the case 
tried last term, (a) The evidence was the same. It appeared in 
this case, as in that, that the supra-carg6 was prevented fronj 
Carrying the cargo frOm Algesiras, without security not to car- 
ry it to a British port; which security he couM not give. The 
cargo was sold under the superintendence of the judge, on tb& 
petition of the supra-cargi»; and the vessel and cargo remained 
in custody of the king's guards tiii the saleof tbe cargo. Tlie 
supra-cargo aened thronghotitlbrt^e L d tofeftt ^M concerned, 
as he found that he could not carry away the. cargo, and ditt 
the proceeds were realized uftder this restriction. As soote as 
he discovered his sltuationi he wrote to the .plaintiff to abandon 
the cargo and frieigfit, ia consequence of |he C(mpaM)A io 
which he was subjected. • , «-. 

Hopkinson and IngersoH for pUiotiff. The cargo not bcittg 
carried' to the port of its deHination^ nor accepted vohmtarilf 
at any other port, do freight was earned, and conlequently a 
total loss was sustained. 7 T. Rep. 381. 

Dallas for defendant. If the goods be received at all, at. any 
other than the port of destination, freight firo raia ia'due. If 
the freighter does not choose to pay freight, he has nothii^ 
to do but to abandon the cargo to the owners of the vessel. 

(a) See ante, page 400. 

« < 




Hurtin w. The UmoD Insunnce Company. 

But if he receives the gpods or eveb the price of them, where 
they have been sbld upon a capture, and reSftitotion awarded; he 
cannot g^t clear of paying freight firo rata, Abbott. 345. 247, 
248, 349. 3S7, 358. 2 Burr. 382. 3 N. York Rep. 13. 3 Idem, 
16. The caae from 7 T. Rep* was op a charter party to pay 
freight, on the arrival of*the goods at^ certain place. The 
cases from N. York Rep. proVe that the underwriters on the 
cargo are not liable for the freight. 

WASHIJ^G TOUj J. If the cargo is not conveyed to tihe 
place of its destination, no freight can be demanded. If ^ 
luntarily accepted at any other port, by the owner or his supra* 
cargo, freight, pro rata itinerUy is due. But if it is received l^ 
a>iOt)uls]0ti> imd the aupra-cargo or captain is acting for the 
best, for the benefit of all concerned, with a view to preserve it 
for the person. entitled* to receive the proceeds, no freight is 
earned; and a cotste^tmry doctrine would make it the interest 
pf the owner of the c^ge o» his agent, to sacrifice the cargo, or 
leave it to perish where the proceeds of it might fall short of 
paying the freight. The receiving the proceeds under a com- 
pulsion, as in this caite) must always be taken as done without 
pi>ejudice. This is rather a stronger case than that of Simond 
««. Umon Insarance Company last term ; («) but in both the 
,cases sale waa cenpulsory ; in both, the owner of the freight 
alymdoned) and the agent acted for the benefit of all concerned ; 
d^idedly so in this case, and m that to the same purpose. 

Judgment for fiCaintifffor a total loss. 

(a) See ante, page 443. 


« ^ 

\ \ 





. . / 

ABAVBoiTMBimiiidek' a Policy Csrrier 

of Insurance 
Acknowledgment, of Deed 

, Admiralty 
Agent . 
Afi^est of Judgment 




« • 

Baid^ruptaod bankruptcy 
Bffls of Exchange 
iBoard ol Property 
Bbtt6mry A^ds 

, y 3X» 


ChaOenges of iurors 

Chancery Practice 

Choses in Action 




Construetign of Statutes 






Courtis of Foreign Countries. 




.% • 







Laws of the United Stales 




Length of Tine 


^ Lex Loci 







• ^ Duties on Merchafidise 

I. « 

: Master of a Vessel 




Eyidence ^ 



ETidence. (Written) 


Negligence • 

Negotial^le NMe 




Feme Clorert 

New trial 

Foreigfi Attachment 

Foreign Laws 



Partner and PwnenhSp 


Patent Bights 


. Payment / 
' Pe^uiy - ' 

Habeas Corpus 

Pleas an4 Pleading 

Hypothecation ' 

. Practiae 




Impost and Tonnage 

Priority of Payment 


Mncipal and Agent ' 

Insurable Interest' . 

* * • 

Promissory Note 


Propeietaries^of Pennsylvania 


Probable Cause 


Protest of the Captain of a 
. Vessel 



Public Ministers 

- • 





Recording of Deeds 


^ ' 





Register of VemOk 








Trust and Trustee 




United States 


Uses. (Sutute of) 

SeMien*8 wages 




Ships and Vends 


Sheriff's Deed 




Slave Tra4e 

Spiingettsbufy Manor 

Warrant and Survey 

SUte Laws 

Warrants fer Lands 


Warranty in a Policy of In- 




Written Instrufnents 


.*« \ 


■ « 

« -r 

N • 








% The MuuTiA nctbaTif abandoMMl ilM tcmcI «t the tiae lie abm- 

to Hike th^ wm it fone» md c«HHt bt Kganed. 

3. In ciM of ^bw^omitil^ t^ iiMfcnnilcr w enMed to att the pro* 

ceeds of the thing absBdoQ^ and to aU the profits aiuing from 
theiBvestaeattheraof. 1^1^400. 

4. The iniiii«d nwetj within afeaaonable thae after nocioe of the lo8% 

B»ke luaelectioi^ and^jM Botloe of hb uiteatiaB t9 ahandoA; bi^ 
he Biay tike a i€aMMihfet]«e.tQ decide iipoa the Mibject /W. 
400. • •. 

1. Deede» 3. 

1. Debt, 1. 
3. Damages, 6. 


• t, f%e tkma^vck Cewt of PeiuiBylvaBia, eaercaaing edmaaity jmiM^ction, 

- w ne i pfoeeed egw—t a captor, into ■whose hands the proceeds of 

the esiplve %a¥e neter vrivedt the same bong hi the hands of the 

t> ^ ■ oAcer of another Courts m another Btste. {down's Mnev^bm tsi 

i^iiWf^gt, 139* 

538 INDEX. 


3. A Court «f Admindty.ciii only proceed mf«M,iig»init thetluiig 

itat^i or guoBi in rent, agunst the pioceeda thereof IbitL 139. 
3/ The ezecation of the lehtence of a nqpefior Couil^ can eoly be bj 
a Dourt of Adimnhy having the tilings wfak^ m ixdend to be le- 
■tored, within ita power. Ibid. 199. 

4. A bond executed as an h3rpotbeGat^ but aot upon tiie prindplet 

which govern such securities, cannot be enAirced In a Codrt of 
Admiralty; but must be proceeded upen in a Coutof tTyT^ Imf* 
Biwryvs. like Ship Jo/rn U JMke, 293. 


1. The owner of a vessel is answerable for the cbkIcMmm, or mwldl- 
fulness of his master ; and by common lawy iMtfauig can eaciBe» 
but the act of God, of the enemy, or of the pMty complaiiunf . 
Duaar vs. Murgatrmfdy 13. 

3. No man can compel another to render him acta of ftiendship, or ser- 
vice, of any kind whatsoever, gratuStoosly, or with a view to eom- 
' pensation. But if <he penon applied to consents to render the 
service, and undertakes the buaintes, he is bound to act in con* 
lbnnityto^etennsonwliiclithere<iiiestwa8ftiade. WalkardaL 
vs. IMeriSnM, 159. 

3. In Comoieraal agendes, tMs role shonld be stricUy enflteced. Ihid, 


4. The relinquishment of commisnon on an agency, does not releaee 

from the effects of negiigenoe. Ibid. 153. 

5. An ageflt who does not emnply widi his instracteis, is liable for 

the-loss oocamoned therd^, although the services were gratui- 
tously rendered. Wd, 153, 

6. Where a power to an agent is general, he may do anything to bind 

has princqMd, whieh is widun the scope of his authority. JOa^ vs. 
Ogdtiy 174. 

7. If the agency be special, every thing is void' whieh may be don^ 

unless in strict conformity with the authority. IHtL 174. 

8. An agent or fiM:tor, who is ofdered by his prindpal to ship goods in 

his possessiol^ has no right to retain more than enough to secure 
any lien he may have upon the goods. Jbffy vs. Bltmekardf 3Si 

9. He mi^ do this^ and obey the order to ship the balanoei or, he may 

ship the wholcof the goods, consigamg them to a Hacd person, 
with orders to deliver them to the owner, on payneat «f the «im 
due to him. /M,253. 

INDEX. 539 


10. If he retiioB Die wbttle, because of afien for a small sum, and any 
loss firflows his breach of orders, he wiU be liable for the same. 

tl. An attomcy, authorised to coflect a debt fyt his princtpal. cannot 

commtfle that debt ibr one due by himself to the, debtor, by the 

mere openllon of esehangSng one for Die other. The debtor 

' ' cannot say he has pidd his debt to tiie attorney, by showing ah 

* agreement made by the attorney to cre<fit the debtor, and debit 

himself, with the amoimit which he, the attorney, owes. Kingston 

f» mnoaH 453. 

13. iji agen^ if a discretion is given to him, is bound to act, to the 

beatof his Judgment, for the benefit of his employer. lfhts.QrdefS 

be fQt6&r% he must either refuse to act, or he is bound to a strict 

obserfance of them. He cannot exercise his own judgmenL but 

as to the best mode of executing the orders according to their 

terms. If the orders are ambiguous^ the construction must be 

taken most strongly against him who gave them. lUd, 453. 

13. If a party knows that A is an agent for several shippers, who had 
separate interests in the cargo, he«cannot take the property of the 
principal to pay his debt; although he would be perfectly justified 
in paying over the money, for Die use of the principal, to the 
agent Mbrriek vs. Btmardr4i79» 

14. A consignee, who receives merchandise from the siipra-cargo for 
aale, and who knows that the supra-cargo is the agent of others, 
contracts a debt with such shipper for the proceeds of fab portion 
of the cargo ; and the supra-cargo has no right to appropriate the 
same to the payment of his private ddt»t. Ibid. 479. 


1. A party to a cause, depending for trial. Is privfleged fiwn airast, 

during the continuance of the Court, at which the trial will take 
place. Ex parte Hursts 186. 

2, This privilege extends, not only to prevent his arrest, when attend- 

ing the Court, and when coming to, and returning from it, but 
while he is at his lodgings. Ilfid. 186. 


1. Where the declaration in ejectment was right, and tliat wUch had 
been served on the casual ejector was wrongly entitled, the defend* 
anthaving entered a plea to the declaration against hin^ the Court 
refilled to arrest the judgment Hiddekb'per vs. BumUf 2ST. 

540 INDEX. 


A» bavipg fiiad» io the liMidt of B» diew • bifl rf^idwnge m irtiif rf 
C» wiio eadoraed h to D and E» to vboB be wv ivk^iU^p iiid tl^ 
bin beinf^ protected for noixcceptMice^ D and £ braight m tak 
agviMt B» the drawee, in tbe nuDe effC» ttiendmvi end, bdote 
jadgmen^ an attaebmeat waa laid «pgn the fim^ in bandi cf Bg 
aa tbe jM«;per^ of e, and Judgmanfc Qblwed afiinat Ji» w tbe gH^ 
mshee. Hdd; tfaal the atfapjiwrnt wig not aflto tile ni(bt af P 
and E, to recorer tbe amauitof Ac biH ten tiM dawcr; Ibe 
ri^i to the ftmda in tiie banda«f tbe dimwee^ being oampletely 
▼eated in D and E; by the endonemeOt of tbe bilL Caner vs. 


1. The operation and effect of tbe attMnder lava of Feoosj^vania. Byl- 

* Ion vs. Brown, 298. 

3. Tbe attainder hwa of PennaylTania» and the autboiity of the Lq|ia- 
btture oTer caaea. which aroae under them» m conaequeaoe of tbe 
atipubttjon in the treaty of peace with Great Bntab^ and die le- 
commendation of CongreaB».in confomuty therewlth» that tbe Stntea 
ibouldTerifle their confiacation biwa* Lessee <^ Harry Uardom ts, 

3. A party who cbums landa against an attainder* the correctneas of 

which be demean could not, upgn the prindplea of the common 
law» controvert the title of the purchaaer under the attainder, m 
a coUater^ actioni but would be compelled to rercrK the attain- 
der, and thua obtain a judgment of reatitution. ByUmU ijemfn^ 
Brown, Z4/L 

4. The principlea and pix>visi<mB of the lawa of Pennsylvania, inrdstioo 

to attaindeiSy examined. IMd. 344. 


The expenses incurred by the detention of a vessel at Algesiias, ne 
subjects of general average ; but her repairs are entirely diaige- 
able to the vessel, the caigo having been previously landed. All 
repairs made necessaiy by any of the risks insured against, must be 
paid by the underwriters.^ Jit^tn vs. Tht Fhcmix Insurmut Com- 
pany, 400. 


1. In what cases Courts will interfere, and act ande an award of re- 

xeiees. num vs. nam, yo* 

2. In Pennsylvania, it b not necessaiy that a miatake by Hm leferees id 






point of iftv, ^liould appear on tbe (ace of tke awnd» to induce tli* 
Court to M(t it aside ; they will re-examine the dofsaiaqittoii vhMi 
tiie refereca decided. /ML 5^* 

3. In such an examination Itto an award, no new-eTidenee eui be ai* 

iffittcd. Imd* 5o. 

4. It is a general ink, acconUng to the kw and practice dTMi^Vflvv 

niay that awards shall be so plainly expressed, that» bj a &ir oon* 
•traetion of the whole inatnimenl^ or by refercnoe to ioni#hing 
•oaaacted with it, the paHies VMylokowpredae^whatthcgriM 
l6 do. If certun^ can' be obtained, by a reference to tomcthinf 
#lirs <bc award,'the party may, by an 4vemien t , core an objeo- 
.' "^ tai, elheHnie fttaL Mtng&hn n. Ehutdd et aL 14%. 

5. ]» the ease ofdMnilion awards, not ondarfhebwa of this Stated tfaf 

aiMiators ctainot be ladled npon, eitficr at law or in equity, tadi^ 
eorer ^ groonds upon which they made their awavL Ibid, 448. 
6u When, idler simdiy meetings, and after eteiy effort to obtatna ooi»> 
ddence tf opinion among them, the third referee, who would not 
mga the award, withdrew, and declared that it would be unnecea- 
aaiy to eril upen him, to meet on the nftject of the reference 
again i the remainii^ two refereiea ba^ ^ n^ ^ proaead, and 
as award. Ibid. 448. 


1. Priority of payments^ 1* 

2. The true rule, in cases of banlcrHptcy,i% that if the 

of action is founded in contraQt^ but the immediate cause arises ex 
MUtot and the chhn ia for damages unliquidated by e^iessaffee- 
, ment, orsuchaawiU notbeipfll^edf the certifieateisnotabart 
aa such a cbim^tould not hare been set up oailir the^^MniiMW 
Dutar TS. Murgatn^fd^ 13. 

3. If the defendant had agreed to pay a ceftaio sum on failure tp per- 

foim-his agreement i or if the plaintiff could bring either itaspae^ 
or money had and received, and imvea the fonner by brining the 
latter 3 the damagea are due, which the law inpUed a ptomiie to 
payt and may be proved under the commission. Ibid^ I8« 

4. A debtor conoeaKng himaelf from, and being denied to bia wediii — ^ 

does not conrtitnte an act «f bankruptcy under the laws of the 
Uutfid States* ualesa the sewioe ef pMfieaaiathcaeby pceveel(Ai 
JIantte <f lA va. AiflHi^ ^. 

5. f^4abMo*derhivi9e|f%elM»de)Mtp«9»dil^ 

to aarve 


542 INDEX. 


process^ il js an act of banknipto^ ^ provided the ofioer cones to 
aerve the pioceasy and not on other bwancM^ and the denial h» 
taken phce within sif nioaths of the iMoii^ «f die 

6. Giving^ a bond with wufant to confeas judpnenC^ to ooe 
\ yfMMi the eve and in cooteniplalion of bankiaptcy, does not oon- 

^ atitute an act of banknipti^ ; unless the judgmenk entered on the 

bond, and the iaming^ of the execution was at the instinfr or hy 
the procurement of the debtor. Such a bond would be aftsud 
iui the gencrsl creditois, IbUL 39. 

7. 0enial to an oiBoer, whereby he is prevented seni^^ pronesi^ wuA 

be recfiy advermry, and not by concert belwen the Incfitar and 
the debtor to baig about an act of bankruptcy. HuL 2SI« 

8. !fodebt» h}itwAa$isdu€attdounngatlket6meoftitkmhiipirjf, 

can be proved under the oornmiswioo; and, conaeqnenti^, an e»> 
doner or acceptor of a bin of exchange, drawn by the fasnknqi^ 
who has not paid it before the bankrupt^^ cannot prove the debt. 
Marka eiaL a$aignee$ vs. Barker et oL 17Z. 

9. The acceptor or endorser of a bill of exchange^ who pays the hiD, 

alter the bankruptcy of the drawer, nay oflbet the nme against 
the bankrupt's asmgnees; but, he must show the debt tn be a sub- 
sisting one in him, at the time the action was brou ght $ for this is 
a case of mutual credit, given Before the bankruptcy* althnu^ the 
money was not paid until after. lUd, 178. 

10# Set-off. Where it wiD be allowed, in relation to claims iqHn die 
bankrupt's estate, arishig from transactions not completed, before 
the bankruptcy. /Ai'cf. 178. ' 

11. The holder of the negotiMe paper, payable 'without defiJcation,'' 
under the laws of P^nn93^vania, assigned sfter a commission of 
baiiknipf cy has issued, may come in under the commission, allow- 
inf^ all just offsets, exnting at the time of the bankruptcy; and 
which would have been adnutted, if the aaagiunent had not been 
made. Humphreyf vs. BUghfa Jhaignees. 44. 

13. The purchaser of a negotiable note, who becomes so after a com- 
mission of bankruptcy has issued, may prove under the cohbus- 
sion ; and he holds the note, subject to aH legal offsets. Ibid, 44. 

13. Perjury.— 1. 3, 4, 5, 6. 


1. The drawer of a biU of excbnigepniteibed after aoccptBoaebyhsna^g 
piidthe damages, eannot set off the suae in an action igainBt bin 
bytho ndoepiory 4m another netomtf aMwnghtimMffceptor M 

INDEX. 543 



' Ibiidt in his hands to pay ihe bill, the damages being unliquidated* 

«iV*f9Minin^ ys* JMrOWf^ 4u. 

2. When an accmnmodi^n bill goes into the hands of a bona fidt 

h^ldei^ even with notice of its particular bharact^, he is entitled 
to reoorer the aiBOUBt thereof fiom the dxaver. ^Perry ef oA vs; 

S. JKOt^ drawn for an illegal consideration, or for <Hie which happens to 
^kX \ cannot be enforced, by one having notice of their character. 
/Kd 100. 

4. JSiBs^ defireted after the ^eath of the drawer, to a person who had 
made adnOMes upon their fidth to the drawer, who had ^em iq 
his possesio n, for the purpose ef riisii^ mone^lfar tip 4N"^er) pi^ 
be enfiMitfed against the representatives of the drawer. lUd. 100. 

3. Nag^eace, 1, 3. 

^ When the drawer ofa bill ofexchange has no funds in thie hands of 
tii(je dmwee^ neither protest nor notice of non-acceptance or non- 
payment lo tbe drawer, are neMsmiy to enable the payee tore- 
eover. Bdtet vs. Qaftyto*! 461. ' ^ 

7. The payee milat cither state tfiaft the bill was protested, or show 

that it waa not Incmnbavt on 1£m to protest it, because, the drawer 
)pd no ftiads m hands to pay tfilie bilf i but this oraianon can only 
be taken advantage of by spedal demutrer. lUA, 461. 

8. Where the drawer bad no Ibnds hi the hands of the drawee, an ac- 

tion may be brooliht by the holder, upon the bill, befeie the time 
it would be pi^raUa^ if il had been accepted. It may be brought 
immnKatrfy on non-aeceptanoe. IkML 461. 

9. The defendant beoig Indebted to the plaintiiF in London, Ibrgoodi^ 

rea^tted m bUl of exchange^ drawn upon London, in his fiivour, 
whidi he endorsed '*pi7^ the amount to order /r my tueJf' « The 
bill was not accepted nor paid» and waa returned to the phdntiirs 
agent, who demanded payment of,^the defendant as endiirser. 
Held that such g^>ecial ciidawiemtut releases the enderser from the 
pignnent of damages, and prevents the negotiabiltty of the bill. 
The amount of the bill ia to be received by the endotaee, Ibr the 
use of the endofier. Broum yt, Mn Jadtfon, SUS, 

10. If the eadorwe be not a creditor of the endorser, then he is to re- 
ceive the meney^ sikI remit it} or if the biH is dishonoured, he is 
toietumit /4J4L513. 

11. In this case the iriamtifiThaving received the bill in payment of a debt 
'* ,4uetohia^w«seBlitladtolooktoeveiypevKmresponaibieoathe 
^ hil^hi^maaperaaifhehadboi^tthebiB^vitheBBeptioBof 

a dittlDftr damages on the endotser. /ML 512. 

« '« 

4144 INDSXi 

BOARD OF Property. 

U a caveat is ^^hmwiw^ by the Bofrd of Fropeityk tin pifty 

mxy still instHute an ejectment for the body pwvidtd i» does it 
witbm six monttis. Ba^fitff^aLm^yn. MtmhtTH. 


nypo ntp c an op. 


challSngbs of jurors. 

1. Tridb 1. 


' 1. tf theaaswwtoabil^cootsroaaqMilrflli^ s i i c grt i oi a in i^ the 
plaintiff most support the stafeiMtiHB fa tim taift by tsslH^^ 
eoaohointiiiff fimmislininfM SaMt ti» JbttUn^ 23QL 

3. If thepleabeset4owi^for aifiunnit ^th« •OBpIsiasB^wilhiQt 
replying to il^ the maitter eonluncd in it teiaf he eoai^daed as 
tiue. fiesaitev o/ OflO^^ Ts. ils&sp<Sp 3Sa 

3. ▲ vevdiot aai judgment at Uw» is nobartordief ineqelly.if an 
efuitibltt ground ef lefief be lud« whi^ it hot rtiwiert by the 
pke. If it be denied»the~pbnftlff tti()rmpfyg«aaBi^f, and go 
into prooft to support the hitti fad if he fiul to aekehis proe^ 
the plea Witt be a good bir» as tf ao wf iKHish hid been put in> 

4» If a biB in equi^ contain no gxoond ibrkehet the dtlrndant oqgh& 
to desBur. IM. 330. 

Sk ▲& B n^cre indebted to the pUatiff tad elheis» andAfaavingbe- 
eoine insolvent^ and a eeosaWea of haahzuptcfhanig issued 
• ^pnalhiBi^theoseditataef AftiBjsiMdinielMsiiirAfioBid 
tile debts due to then hvm the tea of A h^ B* The cemnMsdon 
of banhntptcy being aapenededb the phanriflfl IM ahOl on the 
cquky aide of tiie Circuit Oooi^ to est assde Ae rekaec. Held, 
tfeataUthe paitiea to Use relsMd of A shonli Ime jsnedfathe 
biU( and the demuner, for wantoff Mbh pai1if%isi enlBfaed. 
%#ail ^ PFtrteslai 417« 

^ W%«e.endtoMara%»bepiidoate€aiMtlnd«rted»«r smaB 



Ibtto »«i dMwU join in a baW wlufih aij lM«f ll^ 

7. To Id widt > iel«ae» in wich a €■■•» all the pm^ i m to it MMt apply 
VnametotheCauiti Md on»ttiia0i Mtft^tibiwMe. /M. 

S. A bin, on the e<(wlgr nde^ the Court, waa 6ted by all «iw ptfdea 
to a releaae of the defendantfl^ «icept one^ irtio %ae ^ ,ckiie% «ff 
PenittjWania. The ecMiphuBants in the bifl wete «tt mikm» tf 
another State. To thia biU, there wae a plea to the jiinidiction of 
the Court, alleging die want of joriadiction, becMuae one cndM 
^ waanotJQOiedintebilL Held, that the CoM hid juMfetion 
oftiMcaie* Ilrid.517. 

9. In chanoeiy* tiiere k a diitincdon between dafrue and pauiv ^ par«> 
1&m\ Htut ftnbtf beiflf aueh aa »e «o hirolted m the jRihject in 
c ottuwe ii y, td tim m dtcge» tm be aade witiwt ito beiiy 
^ hiCouit; the h*l»iaie inch a> that tompirtfl ydirfei be gjyen- 
to thea« who eeek i^ irithottt alK^cthif Hw httcffcrti of the paaaive 
parties. IbkL SIT. ^ 

. lOL If a decree can he made^ without affecting the righta of a person 
not made a pertjry or without hi^having any thing to peifonn, ne« 
iBiiarj to the peilbetion of ^m deoKO^ the X)ourt trill proceed 
without hani if he be not ameaable tote piocesa ef the Court, 
or no.beneieial purpose ia to be effected by nuddag haa a party. 
JKA Sir. 

11. There ia no difference between a person, who, on aecouat of hia 
residence beyond aea& cannot be made anawenble to die pioeeaa 

• of the Courts and one who^ by the lawa of the United States^ can- 
not be brought into Court $ and^'wherever, in the former caae, a 
persdn so citcomstanced, need not be made a party, he need not 
be made a party hi the hitter caae. Ibtd^ StT. 

12. Care will be taken nettomake t decree, which will afl^ the per- 
aon iriio is not party to the suit IHd. 517. 


1. Coorta of hMW,aa veil as. tqriftyi; win take notice of aaagamkntaof 
ehoaea in aetioDi and to every aubstantial purpoae, wiH protect 
the lighta of tiie avigaee. Cktfwet ys. Crmg, 4M, 
4?t 1h> f ll iflrt a l J B ki i SI rf Ae a iij g i n i i ia so fiar legstdcd, thnt the 

cff a dMi4tte fiMn toe assignee t» Urn ; m fike 

544 INDEX. 


* be exeduted by the iMbcde five poMiMb aUMmgh die 

en jMraoBted by tbe pMty <»bjfrting to the e a wtmi w ^ voe pte 
-eenty but 4fiift not act dAvMAviv vs. iihM0% 44r 
2. Efideiice, 4„ 5. 


BSb of richwigr, 3. 


1. Openlioii of tbe treaty «f ITSS, upon the exeiciae of l^iidalne 

powcM for the ooaflKatioa of the prapctty of those who had been 
engaged in boaditiea agwnat the Uaited States; or who MigiectBd 
to sanendei' Uieasehrei^ when called upon by kv so to do. 

2. Iwfictment, 4. 


1. The kwa which, in uxg maanoTy affect a contiact^ viiethcr in ili 
, consliiiotion» in the mode of dischaiging it» or which coatrol the 

oUigation which the contiact imposes ; are essciiliBDy inoorponiled 
in the contract CamfranqM ?s. Bwneil^ 340. 

2. Lexhci,!. 

3. Foreign Uiws. 



1. Iff upon deniandf the defendant said he woold retBin4he goods ds- 

mandedy and that he knew a suit would be brought; this is evi- 
dence of a conyersion. JUm vs. Qgcknf 174. 

2. Trover, 1. 


1. Qiiere.-— Whether a corporation is a penon^ widiin the meaning cf 
the Act of Congress. T%e UniUd Stain vs. Mh$, 354. 


1. If the Court had jurisdiction of diejcagstb atoi f^mAm warn ^wn- 

menoed, the repeal of the bar, which ppft Hm juri ailic ia oi^ wiD 
not take awny tile plratiff'sagfattaooala. IFUberm AR«ik|9QS. 

2, YHiere toee members of the ber enter tiieirap p cw M i CC fertile jg* 

index: 147 


ftndjm^ to Mta bstknted mgtkut hSm, uddkut equd^r caDed 
upon, and act as ^e attorneys of the iMftwhn t, no wamat of 
* attorhey baving' been giten by tiie defendant to eMier 4 the attor- 
' iiey^feppinthebillof coats, is to be equally dMded anionic all 
who have acted fai the case, an^ who have t ifipt m n d to the auit. 
iSbM va. JPkmMfll 438. 


1. Adnnialty, 1, 3, 3. 
3. DaiBagea»3. 
3* Jigisdk.tkm» 4. 


1. IVIiese a condemnation is by a foreign Court, it will be presumed to 

be a legal one» if the ijonstitution of it be no} known. SntU §i mL 

vs. /bMSMrf^ 371. 
3. Where its constitution is Iqiown, it is proper Ibr the Couit to eX' 

anune into it $ and, if it has been constituted by a different autho- 

fity, from what is usual in civilized nstioni^ it becomes him, who 

would support its juria^otion, to prove it was erected by proper 

authority. iSid. 371. 
3; The erection of Courts, is^ in aD civilized nations, the act of the 

sovereign; although he may delegate the authority to subordinate 

agents. Ibid. 371. 
4» It is unusual for a military commander to exercise the right to erect 

Courts $ and notiiing #ill be presumed in fiivour of tribunals so 

estilblished. iWl 371. 
5. Kotes to pagea^ 373. 375. 


1. What shall be considered a covenant running with the land. Burti 
vs. Bodne^t '37S, 


L Perjury. 

3. Indictment. 

3. The kw of the United States declares, that murder committed on 

the high seas, shall be tried in tiie district where the offender is 

' apprehended, or into which he is first brought ; and therefore the 

CircQit Court has jurisdiction in a case, arinng under the authority 

of the United States. The UnUedSUOeajn. MagiU,^63. 

si9 IkDEX, 


4. TheL«g»lita»»inddnf uieof atedudoik kv liM^ iftf nenni^ 

imiUbeaiMMiBtd faff«liecainBOttkir< tad, thmfciii, the dc- 
filihioAaffiNHiriMMbetakttftmnllHilood* iW 463. 
^. To ooMlitnfe the alFespe «f w Mi ifar, VHkf Ike kw of tlM Uaited 
Statett iHpiiiiMe in the CmittGoitttiirikelhdled.totei^ not 
oidythetl^«*e^buttlieAk^VMulliappenaBtfaeliifhin& /ML 



1* See IHUlTIHff I 1* 

2. The luks of kw, m rdftfion t» tiie proof lafl die Mteae ef miki 

M^Gregtt ▼■. 71k J i inraweg C V wi p a wy efPemujfhmdBt 99. 

3. WltnesMs cannot he emrined to prave » epikmb t^il iital kpH 

fance is made on goodb, with a paiticuhr aarkj dioae geods. » 
markedf roust be on boarda^ in Ofdcr to entitle te aaaured to rco- 
ver. jRuim ▼•. Qardner^ 145. 


1. Bankrupt and hantaruptcy^ 3» ^. 

2. When i^ooda are deati^ed* or matenaVj snjuitd» 9n boacd x TOBel 

in the pott where they are shipped, the dwmgra mnat bt aaoer- 
tained by the diffeienee between the pnme coat and c kngc% and 
the aalea at the port of ahipment ; and net by the pnbabk pnAts* 
if the goods had gone safe to the port of deilinalian, Jkmm vs. 

3. The captured* who has onutted to enkeoe a dacice oC a anpenor 

Court, leTeiahy tiie decree of a Court of Admiial^ { cannot ckiBb 
aa damagea, the kaa he may have aniitained» by a depirektkn of 
the funds in which the proceeds of the capture may be invested. 
He should have applied to the Court below, to enlbice the daeree 
ef the Court of Appeab ; and, omitting to to do^ the kaa will fiJI 
upon him. Corson's exeaUon vs. Jmmngs 1^« 
4 8Wpa and veaaels^ 2, 3. 

5. In auita far vintfictive damages, the jury have the right to deciik en 

the amount, without the control of the Court s but vherethcy are 
eztnvagant, the Court win interfere. But in other cases, where a 
xok oan be (hacovered, the jury Abound to fi)llow it; and iriiere 
a auin of mon^ haa been lost to the plaintiff by the n^^figenoe of 
tfie defendant, the amount of damages which a j^iy can give, is 
the sum tiie plaintiff hss been thua depfived o( and no 
Walktr doL y^ Bobfrt SmUh^lS^. 





corded In the ccioDfy where the Und Ueiu * B«t If udecd ccnxey9 

lands lyiog in difierent counties^ the Uw doet aoi se<|aire that it 

iluJl be recorded in each county. It i« attJUSentifit be cecoided 

. in pne of the countiea, and then the exemplification of it will be 

evidence as to any of the landa conveyed. And this constzuctloa 

of the law is supported by the practice and tacit approbatioR of 

the bench and bar, a» cleittjly pnyved to the Court Deitmc^s Jsmtf 

Y^ APKeen^ 525. ' . , 

8l Until the Act of 1778^ thc|e was no abaoUite necesvty to reoQtd 

deeda atall^ except moitgiyBa ; ai^ this law was passed for the 

pvotection of creditora and subeequent purchasers. Ibid. 525. 

9. tlie proviakMia of fhe Act of 1715, were merely intended lor the 

. preservation and aafe keeping of deeds. Ibid. 525. 
' 10. Quere^ whetheiv if, aguaat aabsequent purchasers, without notice, 
^. the eacaroplificalioD tf n <lni tof UUids'in more than one county, 
> and which had mH teen feooiAttd in the county where the landa 
weveatoaMb.w^iliUbeMideiM. IbicL 525. 


' Evidence, V5. 


. 1. Eofidence, k ' ' 

2. If a man remove from one State to another, with m lOtentiMi of 
mahan^ the latter the place of his permanent abode, he ia 4loavoi- 
ed there $ althou|^h he leave behind him another eatate which he 


cultivates; and is even elected a member of the Legtakture of the 
State, where* the aaaie is otoated. Butler va. Hopper, 499. 



1. *Su H. hnported a 4|uantity of merchandise. In his own vessel, 

signed to £. D., who received the goods, and gave bonds for the 
duties 16 the United States, with the plaintiffs as his sureties. 
The invoice and bill of lading showed the goods to' be the proper- 
ty of R. D., but the bond was executed by £. D», without ctdlh^ 
hhnself the agent of R. D. Held, that the sureties of £. D. are 
not entitled to reooi/;er the anAount of the bonda paid by them» 
ficom R. D., imder the proviaioBs of the Act of Congress, giving * 
' preference to sureties who pay bonds for duties Chikb vs. A» 
mokery JiiAigneet 494. 

2. The law of the United Statea clearly marks the distinctipn bet^iec* 

owner, importer, 9oo«gnee or agent i and the entiyja to 

« m 

, » 




th^ datftcter in which it is made, at the time the duties are secur- 
ed. IT as agent, diis must he so stated in the hond. Ibid, 494. ' 

t ' 3.' The ktl cTCongress considers a consignee, for all the puiposea of 
the low, an owner ; and unless he states himself not to be ao» he » 
the principal in the bond ; and it is onlyin favour of hi^ suflli|b^ 
and upon him, and his effects, thftt the law gives the itfeferent^ 

r^- /6frf. 494. , ' ' . 

-4w The bond in ^us case #•« properly ^ven by the coAsigne^ of 1b« 
^ - goods^ and therefore ^ere waft no mistake ; and if theHi wer^ a 
mistake, it is not to be recMed at law; and in equity, the pJMntiff 
wtaibl be told that equality is equity ; and that a O^iiit of fij^^dfegr • 
will not rectify a inistake, in' order to vi<date one of itafMranrite 
tnatiiAs. Ibid, 4#4. v 


' 1. BoMd of Pronerhr, 1. ' 
2. Evidence, 3. 

tii What will Ire a sufficient service of a declaration in g j^^ faeat 
Suidekb'per V9. 8Hk8,135, 

4. ^ After the defendant ih 'ejectAi^n| .kii appeared, and entered ni^ 

the common rule, be may take a rule on tile plaintiff for trial, .or 
non prosf although the decLuFiHon has hot be6n changed, so as to 
make it against the real defendant. Tbis is the neglect- tif fftie 
pkiatlff» and he cannot take advantage of it. Lesau of Ihnt ti. 
J&rr, 189. • ^ 

5. In an ejectpient, the plaintiff must show, and it will be snffitient for 

Urn to show, a right of entry; or, in other words^ a right of poa> 
"* session. Bjjfihnta L^see vs. Browitt dti. . 

0u Title, 3, 4, 5. 8. ' ) j 

7'. The lessor of the )>kuntii( who has a regtdar ptper title, caaaot be* 
displaced; unless the ^ofondant in* the ejectment has a better Oik^ . 
either legal, or such .an equitable one as a Court of £q(u^ Wookl 
• sustain. Leuee of Harry Gordon vs. Kerr et a/., 323. 

8. /^e ladies of the defendant in not executing a spedal warrant 
front 1755 to 1765— his entire iilence and acquiescence, from that 
time until s4^ later, when an unauthorized surveyor was called n|»- 
on to do M; is a«fficient to defeat evety pretence of equity, a|{MMl^ 
a legal ttt|^ in a fair bona fide purchaser, without notice. HH 328. 

.9. FeiQe Covert, 1, 2, 3. 

10. If an equitable estate has been feffeited under the attainder lirw% 
the legal estate \^ill no^ be aOowed to be set-up, id bar a > 


. % 





m. M*&mi 


chaser of the equitable interest, huaetcf 

11. Mere p<M0ession of land, or ofleriii|f to sell iff 9 even -^itfdA 
actually made, are not, almief aoflicietit to andionze a pi 
of Qwnenhipf for these ^pna^ be the acts of a toitious 

Wana|;ent. 7^'tf. 354. 

12. After a jud^fment in ejectncHt, and the plalntiiT ia put into 
fton, the Court will notin a summary manner leslore thednfrndawT 

^to possession^ although ha pa^ fte rent^ for the non-paynestt «f 
'which the ejectment was brangbli LeatttufCamae'w^ ■ P«y»» 46S. 

evidence/ ' 

1. Where a eMitotol (iM^aiiptf and who has teleaseii al fidoR 
claims upeo Us estate^ ia » compelcnt witness. JftonMS elmL ynk 

3. Juflfticea sCshe pe^c^ of the State of Pennsjrlvanis, may leceirc ptoof 

of the serriee of process^of >qjeetment^ issuing out of the Qircuil 

Court af the' United States. Huidekdpar vs. Stika, 131. 
' 3. The chacacter of the defendant not being impeached, evideooe ta 
support it cannot be admitted. Keiland vs. BmeU^ 144^ 

4. The agent, who makes the insurance^ afler puiging himself <m his 

ixHT dire, is a Mod witness for the assured, to prore msftan re- 
spectiug the policy. Buan vs. Gardner^ 145« 
'5. The protest of one of the sailors of tl\e captured vessel) ^Mde after 
' his retmn to the United Statei^ at the first port, and left with the 
broker of the assurers^ to fix the period from vhich the leas w» 
to be paid I given in evidence for that purpose 1 but it it 
. not evidence of any fact contained yi it Ibid. 145. 
6. Bvidenee to prove a particular coucse of tnuie, or other matten In 
^ the natttfe of &cts, is properi but uot to prove what, or bow, the 
'^ * bw is con^dered by merchants. Ihtd, 145. 
f. Custom, 3. 

8. Under the clause introduifcd into policies of instiancef tefelhe (o 

the sentence of fi foreign Court of Admiralty, the foreign sentence 
is not conclusive^ in our Courts^ to falsify the wammty, which the 
assured is still at liberty to vindicate. The underwriters may. 
^nevertheless, read the proceedings of tlie foreign Court, as en- 
dence ; though not as oonclusive evidence^ Calbreath vs. Qratgf 

9. A certificate jg(iven by a supia<cargo, upon his return frOA the vofi- 

age ii^}lired( and who» at the time it it ofiered^ is dead; is ii 

1N0^V 557 

- ♦? 


1. An eTwawUfin \b not ietied^ ap 9a to giv« a lien a^inat pim^iMen 

ot.creditqi% if the pfoperty is permitted to renifdn wi^ the debtor. 
, Tkfi Usm Mi hat$^ ky sufferiii^ the propexif to remain with the 

debtor as his ovi^y until a aubaequent execution ia levied, « a 
. Ap9«/«^ wte is made. Ban99€ial ?s. BUHngton ft al 39. 

2. To make a levy efiectiial, the property seized should be specially 

designated in the return of the execution^ or by reference to a 
aehedule accompanying it fhid, ^, 

3. Laen* 


1. TtMB payment of part of the purcbaae mmiey of landi tike property 
of a fane eovert, in her presence, cannot preji^dice her right to 
•^ claim the land, after the termination of the coverture* J^tftee tf 
Mant^ va. H*f[emh 354. 

3« The title qftifenu tmmi to land, jcannot be affected by acta of com« 
. qaiaaiqiD, ahjo^ of those required by law to bind her; much leas, by 
fcta of pqiiaaioQ* Even, if by any acta dutiag opvettiire, other 
than jtho«e which by the proviaiona of the law may clearly bind 
her, a/md eoacr^ may haye bound fa)ar»el( they are proper Ibr the 
deciaion of a Court of Equity, and not of Law* Ibid. 354* 

3. In order to protect the righta of a feme tovurt^ in property forfeited 

.; aa belonging to he^ nusband, oh hia attainder, it b not neccaaaiy 
that the husband should put in a clafan to the same, for herias, by 
the auppleoAent to the attainder laws of Pennsylvania,*pa8aed 29th 
March, 1779 < ^e tighta of peraona claiming paramount t» the at* 
tainder, are a%vcd. Ibid. 354. 


1. Attachment, 1. ' 


1. Whether the Britiah n^gulationi fcapoMii^ the oolodial trade be 

consaatent widi the lawa of oationa or not, t&e effect ef thes^ and 
the decisions of their Cknirta upon tten» are the ^aine to neutrala, 
aa if they were ao< Kdme "^ nt hmrmyoi (kmpamy of NoHh 

2. Courts of foreign countries, 1, 2, 3, 4. 

3. A law df a fonei^iQountiy, which proteeta the paitf to a oontnicl^ 

lima executioB, will, ia «he €00*1 of the f^mted States, protect 
the afwe iiidiridM^ra^ aireift ii|MR tlie a^ Cmth 

/rm^ vs. Afrnd/, 340. 
4 A 

558 INI>EX. 



It 18 not the 9tUe of «b American Tetid to M Ametieaii dtizen, wfaicb 
subjects die vessel to a forfeiture of her privileges ; but lie negled 
to obtain a new register, when the oiiciunsteiices of tiie case, siid 
the provisions of the Act of Congress, wiU permit die same to be 
obtynetL* fVUHng & Fp^d^ys, Thi Umied8taie», 135. 


1. Hie alleged custom, in Phibd«4|>bi«> to strike off oneMrd at tbr 

grou freight, for charges, and to pay two4kird8 only to the assured, 
in a policy on freight, where a total Ipss has occuned) is imreo- 
eonabUf and is in direct opposition to the terms of the policy- 
MPQregor t8< The Inmranee Company efl^enneyhamaf 39. 

2. Bottomry, 3. 

3. HypoAecation, 9. - ♦' 

4. If the^ cargo shipped, is not carried to its place of destination, no 

^ight can be demanded ; if voktwtarUy accepted by the ownec or 
his agdnt at any other port, freight /»r9> rote, is due ; but if it is 
teived by compulsion^ and the aupn^cargo or captain, 
the benefit of al^ ncceive the proceeds tiiereof^ do frqgfat is 
earned or due. ffurtin vs. 7%e Union bumanee Cjmupmnif^ 530. 


1/ The Courts of the Upited Stales, aib the justices thereol^ are only 
authorized to issue writs of Ao&easeorTNM to prisoners in jail, under, 
or by colour of the authority of the United 8ta^ \ or committed 
by some Court of the United States ; or required to testify, in a 
cause depending in a Court of the United States. Ex parte Ca- 
brera, 232. 


1. To make an hypothecation bond, executed by the master of a vessel, 
• vahd, the necesaty of raising the funds advanced upon it, by such 

means, must be abowH. Skip Lcofinid vs. Barclay, 40. 

2. If one of the owners of the vessel reside at the port where the bond 

is given, it is not good. Ibid, 40. . . 
.3. The consignee of a vessel is boiind to advance tlie fi^ght, for the 
.supply of the n e ce ssiti es of the voyage, to be so applied by the 
master. Ibid. 40. ' 

I 4. While the freight 'is in the bends of the consigiie^ he cannot ad- 
vance money to the master oo marine interest, unkes he has been 
directed by the conaigiwr to appiopfiate the ftei|§^ to anotiier 
purpose. IMA 40. 

■ ^ INDEX. 559 


5. Tile nMMiter of ft v a wtl , Mkn the neceflsity of the case, may buid his 

ownen for repain $ unlew it appears that some other person has 
ftothoi^ to maftige^ the concern, in the particular instance ; and 
that tlds was known ^ the*cre^tor. FMSpa vs. Ledley^ 226. 

6. The mortgagee of a reasel, 'befere posKssion detiveibd, is not re- 

qioiisible Ibr repMM made by the mortgagor; oor is he entitled to 
^e eanungB of the veaseL fkid^ 226» 

7. Ah instrument, dpimed to be an hjrpothecatioii of a veeiel, is not 

■ueh, if it was g^ven to the consignee, when he had funds in his 
hands to secure the advai^ces made hy him for the reaseL Hmry 
B. A oonaignee, under such circumstances, cannot enter into a man- 
tine oontiact with the lOMter of the vessel, so as to bind hfa&to 
^pay marine interest. /M. 293. 

9. The cazgo and freif^ is subject to the payment of extraoiiiinaiy de- 
^ mands^ for complethig the voyage ; %nd the consignee takes these 

funds eum onere^ and vdder an implied engagement to make the 
■ necessary advances. Ihid, 293. 

10. liie master, being also owner ci the vessel, may give a specific 
fien on her, for securing advances made fer any purpose \ bat