author: *Yrates, Justice.

text:
    *SEPTEMBER TERM, 1802.
    Attorney-General v. The Grantees under the act of April 1792.

      Land-warrants. — Patents.
    Warrants granted under the act of 3d April 1792, are not ipso facto void, where the conditions of settlement and residence, within the time specified therein, have not been performed: the case of every such warrant, must depend on, and be governed by, its own peculiar circumstances.
    Patents, and prevention-certificates recited in the patents, are not conclusive evidence against the commonwealth, or any person claiming under the act, that the patentees have performed the conditions enjoined on them, although they have pursued the form prescribed by the landoffieers.

    On the 2d of April 1802, an act of the general assembly was passed, entitled “ An act to settle the controversies arising from contending claims to land, within that part of the territory of this commonwealth north and west of the rivers Ohio and Allegheny and Conewango creek” (P. L. 153), by which the judges of the supreme court were directed to devise an issue, for trying the following questions, at Sunbury, in Northumberland county:.
    1st. Are warrants heretofore granted under the act of the 3d of April 1792, valid and effectual in law, against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the said act, at any time before the date of such warrants, respectively, or within two years after ?
    2d. Are the titles that have issued from the land-office, under the act aforesaid, whether by warrant or patent, good and effectual in law, against this commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority and have been grounded upon the certificates of two justices of the peace, usually called prevention-certificates, without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence required by the said act, could not be complied with ?
    The judges, having devised and published the form of a feigned issue, on a wager, to try these questions ; having given public ^notice, that all parties interested in the issue would be heard at the trial; and having settled and prescribed the other necessary proceedings; three of

      them (Yeates, Smith and Brackenbidge, Justices) assembled at Sunbury, on the 25th of November 1802 ; when a jury was impanneled, and the case argued by the attorney-general (McKean), W. Tilghman and Cooper, for the commonwealth, in the negative of the propositions contained in the questions ; but no counsel appeared to argue in the affirmative.
       On the next day, the presiding judge delivered the following charge to the jury :

        .) See McLaughlin’s Lessee v. Dawson, ante, p. 221-2, and note.

         The reasons for not embracing this opportunity to discuss the subject, are assigned by the counsel of the Holland Company, in a letter addressed to the judges of the supreme court:
      ‘‘ Gentlemen — Having attentively considered the suggestions which were made yesterday, during the conference at the chambers of the Chief Justice, on the subject of the act of the general assembly, passed at the last session, with a view to settle the controversies arising from contending claims to lands north and west of the rivers Ohio and Allegheny and Conewango creek, we beg leave briefly to submit the result, as a justification for the advice that will be given to our clients.
      1 st. Although the Holland Company and their counsel cannot approve the terms of the preamble of the act, by which the legislature has undertaken to declare the meaning and construction of the original contract (the very point in controversy), and though they cannot admit the right or propriety of dictating a new, and, perhaps, unconstitutional mode of settling a judicial question, without the assent of all the parties in interest; yet they feel the importance of an early decision, and would cheerfully concur in any form of proceeding, by which the merits of the case could be fully and fairly investigated and decided.
      2d. The merits of the case on the part of the Holland Company, as disclosed to the supreme court, on the motion for a mandamus, and as presented to the legislature, evidently involve the following considerations: 1st. Whether the company have tv-nplied with the condition of the 9th section of the act of April 1792? 2d. Whether the reasons assigned for a non-compliance with the condition, bring their case within the proviso ? 3d. Whether the proviso operates upon cases that are brought within its terms, to discharge the condition entirely, or only to enlarge the time for performing it ? 4th. Whether the company have so persisted in their endeavors to perform the condition, as to be still wdthin the benefit of the proviso ? And 5th. Whether the government, by prescribing the evidence, on which patents had actually issued, in cases brought within the proviso, could now take advantage of the forfeiture for a supposed non-compliance with the original condition ?
      3d. But the questions which the legislature has proposed, are the following ? 1st. Are warrants heretofore granted under the act of the 8d day of April 1792, valid and effectual in law against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence required by the said act, at any time before the date of such warrants respectively, or within two years after V 2d. Are the titles that have issued from the land-office under the act aforesaid, whether by warrant or patent, good and effectual in law against this commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority, and have been grounded upon the certificates of two justices of the peace, usually called “ prevention-certificates,” without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence required by the said act, could not be complied with ? These questions, in our opinion, exclude an investigation and decision upon any other point than the following: 1st. Whether, if the Holland Company have not performed the condition, on which the warrants originally issued, within two years, though the residence could not be completed until the expiration of five years, the state is barred from granting the same lands to other applicants ? And 2d. Whether patents having issued on. the evidence of prevention-certificates alone, they are not void, so as to authorize the state to sell the same land to other purchasers ?
      4th. On the first of these points, we observe, that it has never been contended that the Holland Company have performed the condition within two years ; but only, that the condition was discharged or suspended by the operation of the proviso, on the facts of their case; particularly, the fact that an Indian war existed for several years, beyond the term of two years specified in the act of assembly. And on the second point, it is sufficient to say, that although the prevention-certificate was the evidence prescribed by the public officers, and ought, therefore, to be binding on the government, yet that, even waiving that objection, the patentees will be deprived of their land, when other satisfactory and legal evidence was, and is, in their power, to prove the circumstances which entitled them to patents.
      Without recurring to the many other obvious objections to the form and provisions of the act of assembly, we are confident, that the view which has been offered upon he subject, will justify our advising the Holland Company to decline becoming a party to the suit proposed to be instituted; since, we repeat, a decision on the two abstract questions proposed by the legislature, would still leave untouched and undecided, the great and essential part of the controversy.
      J. Ingersole,
      W. Lewis,
      Philadelphia, June 24, 1802. A J. Dallas.”

   *Yrates, Justice.

— Tkat the decision of the court and jury on the present feigned issue should “settle the controversies arising from contending claims to lands north and west of the rivers Ohio and Allegheny and Oonewango creek,” is an event devoutly to be wished for by every good citizen. “ It is indispensably necessary that the peace of that part of the state should be preserved, and complete justice done to all parties interested, as effectually as possible.” (Close of Preamble to the Act of 2d of April 1802, p. 155.) We have no hesitation in declaring, that we are not without our fears, that the good intentions of the legislature, expressed in the law under which we now sit, will not be effected. We hope, we shall be happy enough to acknowledge our mistake hereafter.

It is obvious, that the validity of the claims of the warrant-holders, as well as of the actual settlers, must depend upon the true and correct construction of the act of the 3d of April 1792, considered as a solemn contract between the commonwealth and each individual. The circumstances attendant on each particular case, may vary the general legal conclusion in many instances.

We proceed to the discharge of the duties enjoined on us by the late act. *The first question proposed to our consideration is as follows : Are warrants heretofore granted under the act of the 3d of April 1792, valid and effectual in law, against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants, under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the said act, at any time before the date of such warrants respectively, or within two years after ? *240]

It will be proper here to observe, that on the motion for the mandamus to the late secretary of the land-office, at the instance of the Holland Company, the members of the court, after great consideration of the subject, were divided in their opinion. The Chief Justice seemed to be of opinion, that if the warrantee was, “ by force of arms of the enemies of the United States, prevented from making an actual settlement, as described in the act, or was driven therefrom, and should persist in his endeavors to make such actual settlement thereafter,” it would amount to a performance of the condition in law. Two of us (Yeates and Smith) thought, that in all events, except the death of the party, the settlement and residence contemplated by the act, should precede the vesting of the complete and absolute estate, and that “ every warrant-holder should cause a settlement to be made on his lands, within two years next after the date of the warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture, by a new warrant; but if, nevertheless, he should be interrupted or obstructed by the force of the enemy from doing those acts, within the limited periods, and should afterwards persevere in his efforts, in a reasonable time after the removal of such force, until these objects should be accomplished, no advantage shall be taken of him, for the want of a successive continuation of his settlement.” To this opinion, Judge Brackenridge subscribes.

It would ill become us to say, which of these constructions is entitled to a preference. It is true, that in the preamble of the act of the 2d of April 1802 (p. 154), it is expressed, that “it appears from the act aforesaid (3d of April 1V92), that the commonwealth regarded a full compliance with those conditions of settlement, improvement and residence, as an indispensable part of the purchase or consideration of the land itself.” But it is equally certain, that the true test of title to the lands in question, must be resolved into the legitimate meaning of the act of 1V92, extracted viceribus suis, independent of any legislative exposition thereof. I adhere to the opinion which I formerly delivered in banc; yet, if a different interpretation of the law shall be made by courts of a competent jurisdiction in the dernier resort, I shall be bound to acquiesce, though I may not be able to change my sentiments. If the meaning of the first question *be, are titles , < under warrants, issued under the law of the 3d of April IV92, for *- lands north and west of the rivers Ohio and Allegheny and Conewango creek, good and available against the commonwealth, so as to bar the granting of the same land to other applicants, where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the law, at any time before, or within two years after, the dates of the respective warrants, in time of profound peace, when they were not prevented from making such actual settlement by force of arms of the enemies of the United States, or reasonable and well-grounded fear of the enemies of the United States ? The answer is ready in the language of the acts before us, and can admit of no hesitation.

“ No warrant of survey for those lands shall vest any title, unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, &c.; and in default thereof, it shall and may be lawful to and for the commonwealth to issue new warrants, to other actual settlers, for the said lands, or any part thereof, &o.” (Act of the 3d of April 1V92, § 8.) “ For the commonwealth regarded a full compliance with the conditions of settlement and residence as an indispensable part of the purchase or consideration of the lands so granted.” (Preamble to Act of 1802.)

But if the true meaning of the question he, whether, under all given or supposed, circumstances of peace or war, of times of perfect tranquillity, or imminent danger, such warrants are not ipso facto void and dead in law, we are constrained to say, that our minds refuse assent to the general affirmative of the proposition.

We will exemplify our ideas on this subject. Put the case, that a warrant, taken out early in 1792, calls for an island, or describes certain land, with accuracy and precision, by the course of waters, or other natural boundaries, distant from any military post, and that the warrantee, after evidencing the fullest intentions of making an actual settlement on the lands applied for, by all the necessary preparation of provisions, implements of husbandry, laborers, cattle, &c., cannot, with any degree of personal safety, seat himself on the lands, within two years after the date of the warrant, and by reason of the just terror of savage hostilities ? Will not the proviso in the 9th section of the act of the 3d of April 1792, excuse the temporary non-performance of an act, rendered highly dangerous, if not absolutely impracticable, by imperious circumstances, over which he had no control ?

Or, suppose another warrant, depending, in point of description, on other leading warrants, which the district-surveyor, either from the state of the country, the hurry of the business of his office, or other causes, iSould not *24-21 survey> uuth the two years were ^nearly expired, and the depredations of the Indians, should intervene, for the residue of the term, will not this also suspend the operation of the forfeiture ? Nothing can be clearer to us, than that the terms of the proviso embrace and aid such cases ; and independent of the strong expressions made use of, we should require strong proof to satisfy our minds, that the legislature could possibly mean to make a wanton sacrifice of the lives of her citizens.

It is said in the books, that conditions rendered impossible by the act of God, are void. Salk. 170; 2 Co. 79 b; Co. Litt. 206 a; 290 b; 1 Roll. Abr. 449, l, 50; 1 Fonbl. 199. But conditions precedent must be strictly performed, to make the estate vest, and though become impossible, even by the act of God, the estate will not vest; aliter, of conditions subsequent. 12 Mod. 183; Co. Litt. 218 a; 2 Vera. 339; 1 Ch. Ca. 129, 138; Salk. 231; 1 Vera. 183; 4 Mod. 66. We desire to be understood to mean, that the “prevention by force of arms of the enemies of the United States,” does not, in our idea, absolutely dispense with and annul the conditions of actual settlement, improvement and residence, but that it suspends the forfeiture, by protracting the limited periods. Still, the conditions must be performed cy pres, whenever the real terror arising from the enemy has subsided, and he shall honestly persist in his endeavors to make such actual settlement, improvement and residence, until the conditions are fairly and complied with.

Other instances may be supposed, wherein the principles of prevention may effectually be applicable. If a person, under the pretence of being an actual settler, shall seat himself on lands, previously warranted and surveyed, within the period allowed, under a fair construction of the law, to the warrantee, for the making his settlement, withhold che possession, and obstruct him from making his settlement, he shall derive no benefit from this unlawful act. If the party himself is the cause, wherefore the condition cannot be performed, he shall never take advantage. Co. Litt. 206; Doug. 691; 1 Roll. Abr. 454, pl. 8; Gobd. 76; 5 Vin. 246, pl. 25.

We 'trust that we have said enough, to convey our sentiments on the first point. Our answer to the question, as proposed, is, that such warrants may or may not be valid and effectual in law against the commonwealth, according to the several times and existing facts accompanying such warrants. The result of our opinion, founded on our best consideration of the matter is, that every case must depend on, and be governed by, its own peculiar circumstances.

The second question for decision is, are the titles that have issued from the land-office, under the act aforesaid, whether by warrant or patent, good and effectual against the commonwealth, or any person claiming under the act aforesaid, in cases where *such titles have issued on the authority, and have been grounded on the certificates of two justices of the peace, usually called prevention-certificates, without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence, required by the said act, could not be complied with ?

It was stated in evidence, on the motion for the mandamus, and proved on this trial, that the board of property, being desirous of settling a formal mode of certificate, on which patents might issue for lands north and west of the rivers Ohio and Allegheny and Conewango creek, required the opinion of Mr. Ingersoll, the then attorney-general, thereon ; and on due consideration, a form was afterwards adopted, on the 21st of December 1797, which was ordered to be published in the Pittsburgh Gazette, and patents issued, of course, on the prescribed form being complied with.

The received opinion of the supreme executive magistrate, the attorney-general, the board of property, and of a respectable part of the bar (whose sentiments on legal questions will always have great and deserved weight), at that day, certainly was, that if a warrant-holder was prevented, by force of arms of the enemies of the United States, from making his actual settlement, within two years after the date of his warrant, and afterwards persisted in his endeavors to make such settlement, that the condition was extinguished and gone. Persisting in endeavors, was construed to mean something ; attempts, essays, &c.; but that did not imply absolute success, or accomplishment of the objects intended to be effected. By some, it was thought, that the endeavors were only to be commensurate as to the time of making the actual settlement, and were tantamount, and should avail the parties, “ in the same manner as if the actual settlements had been made and continued.”

The decisions of the court in Morris’s Lessee v. Neighman and others (ante, p. 209), at Pittsburgh, May 1799, tended to make the former opinion questionable ; and two of the justices of the supreme court adopted a differ ent doctrine, in their judgment between the Holland Company and Tench Coxe (ante, p. 170). In the argument in that case, it was insisted by the counsel for the plaintiffs, that the board of property, in their resolves, and the governor, by his patent, represented the commonwealth, pro hde vice • and that interests vested under them, which could not afterwards be defeated. We cannot subscribe hereto. If the conditions of settlement, improvement and residence ara indispensable at all events; they become so by an act of the different branches of the legislature. The governor who has *2441 a <lua,lifiecl negative in the passing of laws, *cannot dispense with their J injunctions : and it cannot be said, that this case falls within the meaning of the 9th section of the second article of the constitution. “ The governor shall have power to remit fines and forfeitures, and to grant reprieves and pardons, except in case of impeachment.” It relates merely to penalties consequent on public offences. Ñor can it be pretended, that the board of property, by any act whatever of their own, can derogate from the binding force of law. But the fact is, an intention of dispensing with the law of 1792, cannot, with any degree of justice, be ascribed to the governor, or board of property for the time being. They considered themselves, in their different functions, virtually discharging their respective duties, in carrying the act into execution, according to the general received opinion of the day ; they never intended to purge a forfeiture, if it had really accrued, nor to excuse the non-performance of a condition, if it had not been complied with, agreeable to the public will expressed in a legislative contract.

The rule of law is thus laid down in England. A false or partial suggestion by the grantee of the king, to the king’s prejudice, whereby he is deceived, will make the grant of the king void. Hob. 229; Cro. Eliz. 632; Yel. 48; 1 Co. 44 a; 51 b; 3 Leon. 5; 2 Hawk. 398; Bl. Com. 226. But where the words are the words of the king, and it appears, that he has only mistaken the laAV, there he shall not be said to be so deceived to the avoidance of the grant : per Sir Samuel Eyre, Justice, Ld. Raym. 50; 6 Co. 55 b; 56 b, accord. But if any of the lands concerning which the question arises, became forfeited by the omission of certain acts enjoined on the warrant-holders, they do not escheat to the governor for the time being, for his benefit, nor can he be prejudiced, as governor, by any grant thereof; they become vested in the whole body of the citizens, as the property of the commonwealth, subject to the disposition of the laws.

We are decidedly of opinion, that the patents, and the prevention-certificates recited in the patents, are not conclusive evidence against this commonwealth, or any person claiming under the act of 3d of April, 1792, of the patentees having performed the conditions enjoined on them, although they have pursued the form prescribed by the land-officers. But we also think, that the circumstances of recital of such certificates will not ipso facto avoid and nullify the patent, if the actual settlement, improvement and residence, pointed out by the law, can be established by other proof.

We must repeat, on this head, what we asserted on the former, that every case must be governed by its own peculiar circumstances. Until the facts really existing, as to each tract of land, are ascertained with accuracy, the legal conclusion cannot be drawn with any degree of correctness. Éx facto oritur jus.

2d. Here we feel ourselves irresistibly impelled to mention a difficulty, *2451 'w’kich strikes our minds forcibly. Our reflections on the *subjec J have led us to ask ourselves this question on our pillows: what would a wise, just and independent chancellor decree, on the last question ? Executory contracts are tho peculiar objects of chancery jurisdiction, and can be specifically enforced by chancery alone. Equity forms a part of our law, says the late Chief Justice, truly. (1 Dall. 213.)

If it had appeared to such a chancellor, by the pleadings or other proofs, that the purchase-money had been fully paid to the government, by the individual, for a tract of land, under the law of the 3d April 1792 ; that times of difficulty and danger had intervened ; that sums of money had been expended to effect an actual settlement, improvement and residence, which had not been accomplished fully ; that by means of an unintentional mistake, on the part of the state officers, in granting him his patent (the officers not led to that mistake by any species of fraud or deception on the part of the grantee) he had been led into an error, and lulled into a confidence, that the conditions of the grant had been legally complied with, and therefore, he had remitted in his endeavors therein ; would not he think, that under all these circumstances, thus combined, equity should interpose and mitigate the rigid law of forfeiture, by protracting the limited periods ? And would it not be an additional ground of equity, that the political state of the country has materially changed since 1792, by a surrender of the western posts to the government of the United States, and peace with the Indian nations, both which render an immediate settlement of the frontiers, in some measure, less necessary than heretofore ?

But it is not submitted to us, to draw the line of property to these lands; they must be left to the cool and temperate decisions of others, before whom the questions of title may be agitated : we are confined to the wager, on the matters before us; and on both questions, we have given you our dispassionate sentiments, formed on due reflection, according to the best of oui judgment. We are interested merely as common citizens, whose safety and happiness is involved in a due administration of the laws. We profess and feel an ardent desire, that peace and tranquillity should be preserved to the most remote inhabitants of this commonwealth.

The jury found a general verdict in favor of the attorney-general, on the feigned issue ; and judgment was rendered in these words : “ Whereupon, it is considered by the court here, that the said attorney-general do recover of the said grantees, his damages, costs and charges aforesaid, amounting in the whole to $200.06, and the court accordingly render judgment thereon for the plaintiff, subject to the proviso in the 9th section of the act of assembly, passed the 3d day of April 1792.”


source: Caselaw Access Project

author: Shippen, Chief Justice.

license: Public Domain

text:
    *DECEMBER TERM, 1802.
    Jones et al. v. Insurance Company of North America.

      Insurance on freight. — Partial loss. — Exception.
    The expenses incurred for seamen’s wages, provisions and extra-pilotage, during an embargo on a vessel, are recoverable, as a partial loss, from the underwriter on freight.
    A bill of exceptions to the charge of the court, may be tendered, at any time before the jury have delivered their verdict, even when they are ready to deliver it, and are at the bar.
    Covenant, on a policy of insurance, dated the 30th of November 1792, upon the freight of the brig, called the Benjamin Franklin, valued at $3000, for a voy3ge “ at and from Bordeaux to a port in the United States,” against “ the seas, &e., arrests, restraints, detainments of all kings, &c.,” in the usual terms of the printed policies. The premium was six per sent.; and, it was declared, that this insurance is made on the freight of the above brig, valued at the sum insured, for two-thirds thereof, &o.”

    On the evidence, it appeared, that the brig sailed from Bordeaux, on the 17th day of November 1792, bound for Philadelphia ; but on the 20th of November, before she had reached the mouth of the Garonne, she was embargoed by the French government. The embargo continued until the 10th of January 1793 ; when the brig prosecuted her voyage ; arrived at Philadelphia, on the 5th of March ; and there, on delivery of the cargo, the assured received the amount of the freight, originally stipulated to be paid, from the respective shippers.
    During the embargo, however, an expense was incurred, for the seamen’s wages and provisions, and extra-pilotage, amounting to $875.13, for two-thirds of which (according to the proportion of freight insured), the plaintiffs claimed to be indemnified, by the underwriters upon the present policy : and the validity of this claim was the only matter in controversy, upon the trial of the cause.
    For the plaintiffs,

    it was contended, that the expenses incurred during the embargo, were a direct consequence of the embargo, operating as a par-*2471 ^oss uPon freight ; that, therefore, the sum *ought to bo paid ■* or reimbursed by the defendants, so far as the interest of the plaintiffs extended ; that the expenses of the embargo might either be estimated by the jury, upon a consideration of the time, and the burden of the vessel; or from the actual disbursement (which the counsel for the defendants agreed and admitted), and that the premium, being paid for an insurance against the peril of an embargo, applied to a partial, as well as to a total, loss of the freight. In the course of the plaintiff’s argument, the following books were cited : Mill, on Ins. 339; Park, 121, 124; Abb. 274-5, 282-6; 2 Marsh. 620, 628; 2 T. R. 414; 1 Val. Com. 168-170; 1 Emerig. 539; Park, 53; 1 T. R. 127, 129, 132; 4 Ibid. 208, 210, 211; 6 Ibid. 413, 419, 422, 423, 425; Park, 127; 1 Mag. 250, 254; 7 T. R. 421; Park, 78; 2 East 544; 1 Bos. & Pul. 203; Doug. 268, 586; 1 East 228; 2 Burr. 696.
    For the defendants,

    it was insisted, that on this policy upon freight specifically, the expenses of seamen’s wages, &c., during the embargo, were not recoverable ; for the brig coming to her port of delivery in safety, had earned, and actually had received, her whole freight. Besides, it was contended, that such an allowance would be contrary to an established and uniform usage among merchants and underwriters; and it was attempted to prove by the testimony of witnesses, and the certificates of insurance brokers (admitted by consent), that such an usage existed. The attempt failed, however, on the investigation ; and the verdict of the jury gave a negative to the usage. In the course of the argument for the defendants, the following books were cited: 1 T. R. 127; Park, 59; 2 Marsh. 628; 4 T. R. 210; Abb. 221-3; 2 Marsh. 570, 625-6, 628; 1 Emerig. 539; Pothier, “ Charter Party,” 35; Park, 116; Abb. 228-9; 2 Marsh. 467; Park, 124; Wesk. 252-3, 499, 135, 244; Beawes’ L. M. 137; 4 T. R. 208; 1 Mag. 168-9, 170.
   The Chief Justice delivered the unanimous opinion of the court (all the judges being present) in the charge to the jury.

Shippen, Chief Justice.

— There is no direct judicial authority in the books, upon the case now before the court. The case must, therefore, be decided either upon principle, or upon usage.

The present policy is an insurance upon freight, against the jieril of an embargo, as well as against the other enumerated perils. The expense for seamen’s wages and provisions, claimed upon the policy, was an immediate consequence of the embargo at Bordeaux. That expense, it has been often decided, does not fall upon the underwriters of the ship, or the cargo ; but it is remarkable, that Judge Buller (a judge of uncommon understanding and precision), when concurring in that opinion, emphatically adds, “ the freight must bear itand if the freight must bear *it, the implica- poxg tion is strong, that the policy upon freight, must be the appropriate *- instrument of indemnity.

Considering the point, however, abstractedly, upon principle, it is naturally asked, why the law should admit, upon every other subject of insurance, a recovery against the underwriters, for a partial, as well as for a total, loss ; and exclude such a recovery, in the instance of freight ? Freight is exposed to a partial diminution of its value, as well as the ship, or the cargo ; and equally with those, contributes to the payment of a general average, arising from a loss, in its nature partial. The assured on freight, too, may abandon to the underwriters, in the same cases of a loss, not actually, but constructively, total, in which the abandonment is permitted to the assured upon the ship or cargo. Where, then, is the ground of discrimination, upon the present question ? Though the assured receive, nominally, the amount of the freight, from the shippers, they receive, in fact, so much less of the valued freight, than they would have received, if there had been no embargo, as is the amount of the expense which the embargo occasions. The injury is done exclusively to the freight; and if the detention were long, it might, in some cases, amount to the whole freight. Now, every insurance is meant to be an indemnity ; but refuse to pay the assured upon freight, the extra-charge, a charge not contemplated in the ordinary course of the voyage, which falls upon freight, in consequence of an embargo (a risk insured against), and how can the insurance be called an indemnity? In short, though the case has not hitherto been expressly decided; and though we have not had much time for deliberation : yet, we think, that as far as the opinion of the judges of England can be ascertained, by a fair inference, from the expressions of the books; and we are confident, by a fair application of the principle of insurance, the plaintiffs are entitled to a verdict, unless there is a settled, uniform usage of commerce to the contrary.

The existence of such a usage was strongly stated, in the opening of the defence ; and we expected to receive light and satisfaction from the evidence upon the subject; for the usages of any trade, but, above all, the usages of trade and commerce, in giving a practical construction to policies of insurance, are of so high a consideration, that they are deemed to be a part of the express and written contract, whenever they are proved with sufficient certainty. Nor is a usage of trade to be scanned by the strict rules, for the allowance of a common-law custom. If it exists ; if it is known and uniform ; and if it is not, in itself, unlawful; it ought to prevail in the decision of a commercial controversy.

Dallas, for the plaintiffs. Ingersoll, E. Tilghman and Moylan, for the defendants.

But we confess, that we have been disappointed in our own general expectations; though we leave it to the jury (whose exclusive province it is) to decide upon the proof of the usage, in the present case. It appears, that the question has seldom occurred *among the merchants and underwriters of Philadelphia; and in the few instances in which it has occurred, the demand has been as often allowed, as it was rejected. Still, however, we repeat, the jury have a right to pronounce their own sense of the evidence. If they think, a commercial usage uhon the subject has been proved, in opposition to the claim of the plaintiffs, their verdict must be for the defendants. But in the absence of any commercial usage, the weight of authority and principle, seems to call for a contrary decision.

Verdict for the plaintiffs.

Same Cause.

The charge was delivered on Friday evening, the 17th of December, and the court immediately adjourned. On the next morning, when the jury were at the bar, ready to deliver a verdict, the defendant’s counsel, for the first time, tendered exceptions to the charge of the court. The counsel for the plaintiff insisted, that the exceptions were tendered too late ; and the court kept the subject under advisement, that the parties might examine the precedents.

At a subsequent day, the plaintiff's counsel admitted that there was a variance in the precedents ; and that the statute of West. 2, 13 Edw. I. (which gives the bill of exceptions), is silent on the point. But he contended, that as all the books of practice declare, that the exception must be taken at the trial; and that the bill itself must be tendered before the verdict; the notice of the exception must be taken instanter, when the exceptionable matter occurs, though the form may be afterwards drafted. Bull. N. P. 315, 319; Tidd 312, 314, 315, 317; 1 Salk. 288; 2 W. Bl. 929; Cowp; 494; 1 W. Bl. 556; 11 Mod. 175-6; 8 Ibid. 220-1; 2 H. Bl. 200; 2 T. R. 54; 3 Burr. 1692; 1 Bl. Com. 656-7; Lilly’s Ent. 249, 250, 275; 1 Bos. & Pul. 32; Cro. Car. 341; Doug. 122.

The opposite counsel, referring to the same precedents, relied upon the form in Bull. N. P., and insisted, that a bill of exceptions to the charge, might be tendered at any time before the verdict.

By the Couet. — On a consideration of the authorities cited, and of our own practice, we do not think that the defendants were too late in tendering their exceptions. The bill, therefore, may be reduced to form, and will be allowed. Even if we had *doubted on this point, wo should have been inclined to afford an opportunity for the revision of our opinion minds, on the principal question; however satisfied we are, in our own, that it is correct in principle and law.

         The high court of errors and appeals reversed the judgment of the supreme court in this case, in 2 Binn. 547. The wages and provisions of the crew, and the other expenses incurred during the detention of a vessel by an embargo, do not constitute a charge against the freight; they should be brought into a general average. Ibid But see Kingston v Girard, post, p. 274.

         s. c. 1 Binn. 38.

         Although the jury have agreed upon a verdict and sealed it up, until it has been opened and confirmed in court, it is, in fact, no verdict. 1 Binn. 88. It will be sufficient, if the substance of the exception be reduced to writing and tendered to the court, before the verdict has been delivered. The exception may afterwards be reduced to form, and the court is not bound to suspend the trial of a cause, until a bill of exceptions is drawn in form and sealed. Morris v. Buckley, 8 S. & R. 216; Stewart v. Huntington Bank, 11 Id. 267.

       In the case of Kingston v. Girard, post, p. 274, the court declared, that, after long and mature consideration, they were perfectly satisfied with their decision in Jones v. Insurance Company of North America. It was, however, subsequently reversed by the high court of errors and appeals. 2 Binn, 547.


author: By Shippen, Chief Justice.

text:
    Cochran et al. v. Cummings.

      Mescission of fraudulent contract.

    Where a vendor of goods has been fraudulently induced to accept in payment, a conveyance of a worthless tract of land, he may repudiate the payment, and recover the price of the goods.
    Case, for goods sold and delivered. There was a special defence, that the defendant had sold and conveyed to the plaintiffs, a quantity of land in the county of Northumberland, in satisfaction of their demand; and the deed of conveyance, dated in June 1799, was produced. But the plaintiffs insisted : 1st. That they took the conveyance only as a collateral security : and 2d. That they were imposed upon by the defendant, as to the quality of the land.
    On the first point, the evidence was contradictory; and The Court left it, implicitly, to be decided by the jury.
    On tbe second point, it was proved, that the defendant had represented the land as very valuable ; saying, that it was such as would sell, in two or three years, for a price, from two to six dollars an acre : hut in fact, the land was apart of a mountain, commonly called “ Jack’s Second Mountain so rude, that it could not he cultivated ; and so steep, that it was inaccessible, even to take off the wood, without incalculable expense and labor. In the charge of the court, on this point, it was said—

      Ingersoll and Heatly, for the plaintiffs. M. Levy and Porter, for the defendant.
   By Shippen, Chief Justice.

— Wherever there is a gross misrepresentation of facts, relating to the subject of a contract, the contract is fraudulent and void; If, therefore, the jury shall he of opinion, that such a misrepresentation was made, in the present instance, they should consider the conveyance as no payment, although the plaintiffs agreed, under the deception, to accept it in satisfaction; and the verdict must he for damages to the whole amount of the demand.

Verdict, accordingly, for the plaintiffs’ whole demand.


text:
    *Fitzgerald v. Caldwell’s executors.

      Interest on judgment.

    A judgment nisi was made absolute by an agreement, which stipulated that proceedings should be stayed, until the trial of certain foreign attachments, which had been laid, before the commencement of the suit, upon the funds in question: Held, that interest shoidd be allowed on the judgment, but only from the time of the settlement of the principle involved in those attachments, by the trial of one of them.
    The original cause being remitted to the supreme court, upon the decision of the high court of errors and appeals,  this scire facias was brought to enforce the judgment against Caldwell’s executors, returnable to September term 1798 ; and issue was therein joined upon the pica of “payment.”
    To maintain the plea, the defendant’s counsel recapitulated the facts set forth in the report of Fitzgerald v. Caldwell, 2 Dall. 215 ; and contended, that, while the attachments were depending, Caldwell was not liable for interest ; that as soon as the original question had been decided, upon the trial of one of the attachments (in January 1793), favorably to the claim of the present plaintiff, Caldwell, at his own peril, paid the principal sum, due at the time the note was given to Fitzgerald ; that no question of interest was decided by the high court of errors and appeals ; and that the judgment of that court is not a bar to the inquiry, in the present suit, whether anything is due, either for principal or interest.
    For the plaintiff,

    it was urged, that by the agreement of the parties, the judgment nisi rendered on the report of the referees, in January 1791, was made absolute, with a stay of proceedings, until one of the attachments should be tried ; that this judgment, being for a sum certain, to wit, 50097. 5s. Id., carried interest, of course, unless the terms of the agreement, or the operation of law, in cases of attachment, affected the right (1 Dall. Laws, 13) ; that in point of morality, as well as law, Caldwell, who had long detained, and advantageously employed, the money of another man, was bound to make a reasonable compensation for the use; that the decision of the supreme court, releasing Caldwell from the payment of interest, was the very foundation of the writ of error; and that the high court of *0521 errors and appeals *(whose sentence could now be revised, modified, J or annulled) had not only affirmed the judgment rendered in January 1791, for the fixed sum of 50097. 5s. Id., but had expressly reversed the order to discharge Caldwell, on payment of the principal sum.

        а) See Addis. 119.

         The principal sum paid was the amount due in April 1782 ; not the amount reported to be due by the referees (50097. 5s. Id.) and for which the judgment was rendered absolute, as of January 1791. The claim of the plaintiff, on the scire facias. was, therefore, founded upon the following calculation:
      Report of referees in January 1791.......................£ 5009 5 1
      Two years, interest, until payment, ii January 1793,........ 601 0 0
      6610 5 1
      Deduct the amount paid in January 1793.................. 8250 0 0
      2360 5 1
      Interest on the balance, until payment,

   Shippen, Chief Justice.

— We have neither the power; nor the inclination to impair the judgment of the high court of errors and appeals, by asserting a contrary opinion, in point of law; nor by admitting evidence to undermine its authority with the jury. The judgment of January 1791, with all its legal incidents, can only now be affected, by proof of actual payment and satisfaction. As to the principal sum for which the judgment is affirmed (5009?. 5s. If?.), there must be no dispute ; and we can only now consider that part of the defendant’s argument, which insists, that, at least, upon the amount of the judgment, no interest ought to be allowed.

An act of the general assembly has declared, that lawful interest shall be allowed to the creditor, for the sum or value he obtained judgment for, from the time the said judgment was obtained, until the time of sale, or until satisfaction be made.” (1 Dall. Laws, 13.) Interest is, therefore, generally speaking, a legal incident of every judgment: but it is contended, that the present case ought to be excepted from the rule, because an immediate payment was not contemplated by the parties themselves ; and because the judgment was made absolute, on the express condition, that it should await the trial of certain foreign attachments.

The agreement on which the judgment was made absolute, is recognised in the decision of the high court of errors and appeals, “ according to its terms.” The genuine meaning of its terms can only be ascertained, by considering what was the real subject in dispute under the attachments. In the attachment that was tried in January 1793, the dispute appeared to be simply, whether the evidence of Moore’s interest in the debt, due from Caldwell to Vance, Caldwell & Vance, amounted to an assignment, legal or equitable. The meaning of the agreement, therefore, must have been, to stay proceedings on the judgment, until that subject was investigated. Now, the subject was completely investigated, on the trial to which I allude; and the jury determined, that the debt did not remain subject to attachments, as a debt still due to Vance, Caldwell & Vance; but had been previously appropriated and assigned to Moore & Johnson. It is true, that the decision of the high court of errors and appeals recognises the agreement generally; and that the agreement, in its own general terms, embraces a trial of all the attachments : but if the first attachment could not prevail, it is improbable, that any subsequent attachment would succeed; and I repeat, that in the *spirit of the agreement, a discussion and decision of the principle was alone contemplated. L

In this view of the case, the only point to exercise the discretion of the jury, will be (not whether any interest shall be allowed upon the judgment, but) from what period the interest shall begin to run. The judgment being made absolute by the agreement, a reasonable time should, perhaps, be allowed for a trial, as contemplated by the terms of the agreement; but when the trial in January 1793, had fixed the right of Moore & Johnson to the debt, as assignees of Vance, Caldwell & Vance ; and when Caldwell himself had acquiesced in the verdict, by paying what he thought due, without demanding an indemnity, the court cannot perceive any legal or equitable ground upon which the right of interest should be longer suspended.

E. Tilghman, Lewis and Dallas, for the plaintiff. Ingersoll and McKean, for the defendants.

Upon the whole, we think, that interest ought not to be allowed, upon the sum fixed by the judgment of January 1791, until the decision in January 1793 ; but that the interest ought to run from that period. Although Caldwell himself asked no indemnity, on the payment which he made, we shall think it proper, in aid of the executors, to direct an indemnity against the attachments to be given, before the amount of the verdict, on this occasion, is paid.

Yerdict for the plaintiff.

       See this case cited, 6 Binn. 355.

       The indemnity was given to the satisfaction of the judges, and the executors paid the amount of the verdict into court. Thus terminated, in 1802, a suit commenced, in fact, twenty years before, in 1782!


text:
    Commonwealth v. Gibbs.

      Elections.

    Under the act of 15th February 1799, a judge of elections had no right to exact an oath from an elector, that he did not join the British forces, during the revolutionary war, or was not attainted of high treason.
    A threat to the judge, made by the son of the elector, under such circumstances, is not an indictable oífence; to constitute the offence of intimidation, there must be a preconceived intent to intimidate the officers, or to interrupt the election.
    This was an indictment, on the 17th section of the election law (4 Dali. Laivs, 342), which provides (among other things) that “ if any officer of the election shall be threatened, or violence used to his person, or interrupted in the execution of his duty, every person who shall be guilty of such intimidation, threats, violence or interruption, being convicted thereof, shall be fined and imprisoned for the same, at the discretion of the court, not exceeding six months imprisonment, nor exceeding one hundred dollars fine.”
    The facts were briefly these : Mr. Beckley, the prosecutor, was apjiointed a judge, at the general election in October 1801. Mr. Gibbs, the father of the defendant, presented his ballot, but before accepting it, Mr. Beckley insisted, that he should answer the following questions : 1st. Did you, at any *2541 **American war, join the British army ? 2d. Or, take -* an oath of allegiance to the king of Great Britain? 3d. Or, were you attainted of treason against the United States, or the state of Pennsylvania ? Mr. Gibbs declined answering the questions ; and (after some altercation) his son, the defendant, shaking his fist at Beckley, said, “I will see you tomorrow.”
    Two grounds of defence were taken by Lngersoll and Lewis:

    1st. That the judge of the election was not in the performance of a duty, when he proposed such questions to an elector. The act of assembly declares who may vote ; and as to the enumerated requisites to constitute a right of voting, the voter’s oath or affirmation may be demanded. After the repeal of the test laws, every citizen who had not been attainted, had a right to vote. But the questions are not pointed to the qualification designated ir the act; the answers to those questions might tend to criminate the votei himself; for, ii attainted, lie would still be liable (notwithstanding the treaty of peace) to the corruption of blood, under the old state constitution, the treaty of peace not operating as a reversal of the attainder; and no lawyer ever suggested, or would assert, that a man’s vote could be rejected, unless he answered questions thus tending to the exposition of his own guilt. 1 Styl. Pr. Rep. 675; 3 Bl. Com. 268, 363-4; Doug. 572; Salk. 153; 4 State Trials, 747. 2d. That it is material, on the present indictment, to prove that the defendant acted with design to influence unduly, or to overawe the election, or to restrain the freedom of choice : whereas, it is evidently the case of a son interposing, to protect an aged and infirm parent from insult; and his actions, as well as words, were the mere ebullition of sudden passion.

      Reed and Dickerson, for the commonwealth,
    admitted that no answer could be exacted, which would expose a man to penal consequences ; but they insisted, that the answers to the questions proposed (though in the affirmative) would not, at this day, involve the voter in any jeopardy of life, liberty, property or penalty. The answers could only prove him (if in the affirmative) to be an alien ; and an alien may certainly be compelled to disclose his foreign birth. (Park. 164.) The questions were calculated to ascertain a fact, on which the right to vote depended. None but citizens can vote. Now, although every man (even a native of America) had a right to choose his party in the revolutionary war (1 Dali. 53), yet, if he took an oath of allegiance to Great Britain, or joined her armies, he determined his election; and in neither of these cases, any more than in the case of an attainder, could he vote at our elections, as a qualified citizen. If, then, the judges of the election acted within the limits of an official discretion, in proposing the questions, the *lifted fist and threatening words of the de. [-*055 fendant, bring the case clearly within the description and punishment *- of the law.

       s. c. 3 Yeates 429.

   The Coubt delivered a full and decided opinion, in the charge to the jury, that the questions, proposed by the judges of the election, were illegal ; that Mr. Beckley could not, therefore, be considered in the execution of his duty, when he insisted upon an answer to those questions ; and that, consequently, the defendant was not liable to an indictment, under the election law (hoAvever he might otherwise be charged), for resisting, in the way that he did, the demand upon his father, to answer questions tending to criminate himself.

Verdict, not guilty.


author: Brackenridge, Justice.

text:
    Commonwealth v. Franklin et al.

      Intrusion law.

    The act of 11th April 1796, declaring, as criminal offences, the taking possession of lands, or conspiring to convey, possess or settle them, in the counties of Northampton, &c., under any title not derived from Pennsylvania, is not unconstitutional.
    In August Session 1801 of the Court of Quarter Sessions, the grand jury of Luzerne county presented the following indictment:
    Luzerne county, ss.
    The Grand Inquest for the body of the county of Luzerne, upon their oaths respectively do present, that John Franklin, Elisha Satterlee and John Jenkins, all late of the said county, yeomen, on the first day of August, in the year of our Lord, one thousand eight hundred and one, at the county aforesaid, and within the jurisdiction of this court, unlawfully did combine and conspire, for the purpose of conveying, possessing and settling on certain lands within the limits of the county aforesaid, under a certain pretended title not derived from the authority of this commonwealth, or of the late proprietaries of Pennsylvania, before the revolution, to the evil example of all others in like manner offending, contrary to the form of the act of general assembly of this state in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania, &c.
    And the jurors aforesaid, upon their oaths aforesaid, do further respectively present, that the said John Franklin, Elisha Satterlee, John Jenkins and Joseph Biles, all late of the county aforesaid, yeomen, on the first day of August, in the year of our Lord, one thousand eight hundred and one, at the county aforesaid, did combine and conspire for the purpose of laying out-townships, by persons not-appointed or acknowledged by the laws of this commonwealth, to the evil example of all others in like manner offending, contrary to the form of the act of assembly of this state in such case made *2561 an<^ provided, *and against the peacé and dignity of the common- -* wealth of Pennsylvania.
    Joseph B. McKean,
    Attorney-General.
    A certiora/ri issued at the instance of the defendants, to remove the indictment from the quarter sessions into the circuit court; directed, however, to the judges of the court of common pleas of the county, requiring the return of an indictment against the four persons named in the second count, for both offences ; and actually returned by the associate judges of the common pleas.
    On the tidal of the indictment, in the circuit court, at a session held at Wilkesbarre, Luzerne county, in May 1802, the jury found a special verdict in these terms :
    “ And now a jury of the county being called, came, to wit, Thomas Duane, Lazarus Denison, Peter Grubb, John Cary, Nathan Beach, Thomas Wright, Ebenezer Slocum, Nathan Waller, Abel Pierce, Jacob Bedford, Timothy Beebe and Abiel Fellows, who being duly impannelled, elected, sworn and affirmed to try these issues, on their oaths and affirmations, do find, that the defendants, John Franklin and John Jenkins, did, after the 11th of April 1795, at the county of Luzerne, conspire and combine for the purpose of conveying, possessing and settling on lands within the said county, under a pretended title not derived from the authority of this commonwealth, or of the late proprietaries of Pennsylvania, before the revolution, contrary to the form of an act of general assembly of this commonwealth, passed the 11th of April 1795, entitled an act to prevent intrusions on lands within the counties of Northampton, Northumberland and Luzerne. And the jurors aforesaid, on their oaths and affirmations aforesaid, do further find, that the said John Franklin and John Jenkins, after the 11th of April 1795, at the county aforesaid, did conspire and combine for the purpose of laying out townships in the said county of Luzerne, by persons not appointed or acknowledged by the laws of this commonwealth, contrary to the form of the act of the general assembly aforesaid ; but whether the said defendants are guilty in manner and form as they stand indicted, they know not, and pray, therefore, the opinion of the court. And if the court here should be of opinion, that the said act of general assembly is not contrary to the constitution of the United States, or of the state of Pennsylvania, then they find the said defendants guilty in manner and form as they stand indicted, but if the court should bo of opinion that the said act of general assembly is contrary to the constitution of the United States, or of the state of Pennsylvania, then they find the said *defendants not guilty in manner . and form as they stand indicted. And the sail Elisha Satterlee and L Joscph Biles, they find not guilty, in manner and form as they stand indicted.”
    Upon this finding of the jury, the defendant filed the following reasons in arrest of judgment.
    1st. The law on which this indictment is grounded, is unconstitutional.
    2d. The offences charged are not described with convenient and legal certainty.
    3d. No act is stated, in either count, to have been committed in pursuance of the combination and conspiracy.
    4th. Two different crimes are charged in the first count of the indictment.
    5th. It is not stated in the second count, that the combination and conspiracy was to lay out townships within Luzerne county, or elsewhere, nor are the townships in any wise described.
    6th. The cause was never pending in the circuit court.
    7th. The certiorari is to remove an indictment against four persons, for two offences ; and there is no such indictment.

    The act of assembly, to which the indictment and proceedings refer was passed on the 11th of April 1795 (3 Dall. Laws, 703), and the sections material, in the present case, were the following :
    Sect. 1. “ That if any person shall, after the passing of this act, take possession of, enter, intrude, or settle on any lands, within the limits of the counties of Northampton, Northumberland or Luzerne, by virtue or under color of any conveyance of half-share right, or any other pretended title, not derived from the authority of this commonwealth, or of the late proprietaries of Pennsylvania, before the revolution, such person, upon being duly convicted thereof, upon indictment in any court of oyer and terminer, or court of general quarter sessions, to be held in the proper county, shall forfeit and pay the sum of two hundred dollars, one-half to the use of the county, and the other half to the use of the informer; and shall also be subject to such imprisonment, not exceeding twelve months, as the court before whom such conviction is had, may, in their discretion, direct.

      Sect. 2. “ That every person who shall combine or conspire for the purpose of conveying, possessing, or settling on any lands within 1J the ^limits aforesaid, under any half-share right, or pretended title as aforesaid, or for the purpose of laying out townships by persons not appointed or acknowledged by the laws of this commonwealth, and every person that shall be accessary thereto, before or after the fact, shall, for every such offence, forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, one-half to the use of the county, and the other half to the use of the informer; and shall also be subject to such imprisonment at hard labor, not exceeding eighteen months, as the court in their discretion may direct.”
    It was agreed by the attorney-general, and the counsel for the defendants, that the leading question, whether the act of assembly was constitutional, or not, should be argued in the supreme court, before all the judges. Notice was regularly given to the attorney of the defendants, that the case would be argued at the present term ; but they did not appear, nor apply to counsel to appear for them, until the argument had actually commenced ; and then, upon being refused a term’s delay, their counsel (Lewis), for want of preparation, declined entering into the discussion.
    The case was opened and argued, by Duncan, for the commonwealth.
    He traced the history of the Wyoming controversy, and referred to the decree of Trenton (30th December 1782, 8 vol. Journ. Cong. 83-4), as finally terminating the question of boundary and jurisdiction between the states of Pennsylvania and Connecticut, in favor of the former. From that ■period, every settler under a Connecticut title, must be regarded as a wilful trespasser. (2 Dali. 300.) The ordinary process of the law, however, was not sufficient to restrain or repel the intrusions upon our territory; the legislative attention was imperiously drawn to the subject; and an act was passed, on the 11th of April 1795, to punish, as criminal offences, the taking possession of lands, or conspiring to convey, possess or settle them, in the counties of Northampton, Northumberland or Luzerne, under any title not derived from Pennsylvania. (3 Dali. Laws, 703.) Upon the first and second sections of this act, the present indictment is founded ; and a constitutional objection is raised, to quash the indictment, and defeat the beneficial operation of the act. This constitutional objection has, on other occasions, been branched into various points.
    1. The act has been said to be a violation of the first section of the ninth article of the state constitution, which declares, “that all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”
    *We answer, property is a creature of society ; and the right, in all its modifications, of acquisition, possession and transfer, is regulated by positive law. (2 Bl. Com. 2 ; 3 Dall. 391, 394.) From the very nature of the right of property, it is a perfect and exclusive right. The moment that it was established, that the boundaries of Pennsylvania embraced the Wyoming district of country, the right of property became absolute and exclusive in the state; it would be absurd, to suppose, that Connecticut could also possess an exclusive right of property in the same land; and yet, without such a supposition, by what principle of general law, what positive statute, what express or implied contract, can her grants confer a possessory or usufructuary interest in the land ? No man could obtain from Connecticut a legitimate right to acquire, possess and protect property, which belonged to Pennsylvania ; and the constitution could only intend to recognise and sanction a legitimate right for those purposes.
    2. The act has been said to be a violation of the constitutions of the United States and of Pennsylvania, inasmuch as it creates a new offence ; punishes ex post facto, the exercise of a claim, legal in its origin ; and impairs the obligation of contracts.
    We answer, the intrusion, forcible or clandestine, upon the territory of a sovereign power, is an offence malum in se. It is an attack, not only upon the national property, but upon the national sovereignty. If done by individual citizens of another state, it is a high misdemeanor ; and if done with the sanction of their government, it would be a just cause of war. But it is adding insult to outrage, when the citizens of the state itself, deny her right and authority, and parcel out her lands under the authority of another government. The offence is flagrant, against every principle of political economy; and always has been held indictable. (2 Hawk. P. C. 210; 4 Bl. Com. 128; 32 Hen. VIII., c. 9.) Long, however, before the Connecticut claim began to operate, Pennsylvania (in 1729-30) had introduced a similar law, to prevent purchases of land from the Indians ; to annul all contracts for that purpose ; and to extend the English statutes of forcible entries and detainers, to the case of entry upon lands, not located or surveyed by some warrant or order from the proprietary. (1 Dall. Laws, 248.) And even in the year 1700 (which law was enforced by additional sanctions, in 1769, Ibid. 503), it had been declared, “that if any person presume to buy any land of the natives, within the limits of this province and territories, without leave from the proprietary thereof, every such bargain or purchase shall be void, and of no effect.” (Ibid. 5.) Say, then, that the Connecticut title originated in July, 1754 (as it is alleged), in a purchase from the Indians : by a positive subsisting law, the purchase was void; it could afford no lawful ground for subsequent contracts ; and of course, no ^contract could, in this point of view, be impaired by the act against intrusions. Say, *- that the contract is only to be regarded as between Connecticut and her grantees : the contract is neither annulled nor impaired, if the subject of it belonged to Connecticut; but surely a contract with Connecticut could give no right to enter upon lands that belonged to Pennsylvania. The obligation of the contract lies exclusively upon Connecticut; and Pennsylvania does not, in any degree, impair it, when she merely says, that it shall not be forcibly transferred to her. If, therefore, Pennsylvania had a right to legislate for the protection of her property, for the vindication of her sovereignty, is there in the manner of legislating, any violation of a constitutional or established principle of jurisprudence? No, the offence is defined, and the punishment prescribed, not ex post facto, in reference to past intrusions and conspiracies ; but expressly contemplating those which shall occur, after the enacting of the law.
    3. The act has been said to be a violation of the state constitution (art. ix., § 1), by destroying an equality of rights ; inasmuch as its provisions do not apply to the whole state, but to a particular district, composed of three counties.
    We answer, the grievance is local, and the remedy ought, therefore, to be locally applied. The usurpation and intrusion prevailed only in the counties of Northampton, Northumberland and Luzerne; and the proceeding against the intruders, by eviction and restitution, is not a novelty in our law. In criminal cases, the award of restitution always follows a conviction ; and in cases of forcible entry and detainer (when, too, the public dignity is not involved), restitution is the appropriate execution of the judgment, in favor of a prosecutor.
    4. The act has been said to be a violation of the constitution, because it destroys or suspends the right of entry.
    We answer, it cannot be seriously supported, as a legal proposition, that it is unconstitutional to deny a right of entry on lands in one state, under an authority derived from the government of another state. Even as to estates derived from herself, or as to estates belonging to her citizens, the state may, and positively does, by an act of limitation, destroy the right of entry. (2 Dali. Laws, 281-2.) But the act of assembly, in discussion, if fairly construed, does not effect a right of entry, to prevent the bar of the act of limitation, or to seal a lease, for the purpose of intruding and settling upon the lands, in pursuance of the spurious title of Connecticut.
    5. The act has been said to be a violation of the state constitution, because it exercises a power, in its nature judicial, and not legislative.
    *We answer, the act neither undertakes to investigate facts nor to pronounce a judgment. It prohibitst he doing of certain acts ; and if the acts are done, it leaves to the court of justice, the exclusive province of trying and deciding upon the case.
    6. The act is said to be a violation of the second section of the third article of the constitution of the United States, so far as it provides, that the judicial power shall extend to controversies between citizens of the same state claiming lands under grants of different states.
    We answer, the federal courts have no criminal jurisdiction, except in the cases expressly authorized by the constitution and laws of the United States; and the present case, considered as a criminal one, is clearly not included in the delegated authority of the constitution or laws. Considered as a civil case, it is necessary, for the claim of federal cognisance, to show that Connecticut had actually issued grants for the lands granted by Pennsylvania, which has never yet been pretended. For the 9th article of the confederation had taken cognisance of “ all controversies concerning the private right of soil, claimed under different grants of two or more states, whose jurisdiction, as they may respect such lands and the states which passed such grants, are adjusted, the said grants, or either of them, being at the samo time claimed to have originated antecedent to such settlement or jurisdiction.” And the existing federal constitution also calls, expressly, for a claim of lands, under grants of different states, before the case of federal cognisance can arise. That the word “ grant ” is thus used in its legal, technical, sense (2 Bl. Com. 317), and that no such grant was ever made by Connecticut, prior to the decree of Trenton, will satisfactorily appear from the journals of congress. (8 vol. 74; 9 vol. 156 ; 10 vol. 294-9.) After all, the constitution of the United States only secures the right of action, which may subsist without the right of entry, and is not destroyed or impaired by the act of assembly— an act of public police, for the purposes of internal self-government.

      Dallas, in concluding for the commonwealth,
    divided the consideration of the general question (whether the act was constitutional ?) into an inquiry — 1st. Whether the subject of the law, was constitutionally proper ? And 2d. Whether there was any departure from constitutional principles, in that regulations, for carrying the law into effect ?
    1. It is the duty of every government to protect the rights of property, and to preserve the public peace. An evil subversive of those rights, fatal to that peace, existed in Pennsylvania at the period of passing the act. The state laws, then in force, were incompetent to a cure of the evil. The federal government could not interpose, either with its legislative or judicial power. And *unless the state could administer to her own relief, the case was desperate and dreadful.
    What was the evil that existed ? By the decree of Trenton, it was settled, that Pennsylvania had the exclusive right of sovereignty, soil and pre-emption, as to the lands in question ; by a retrospective recognition of the boundaries described in the charter from Charles II. to William Penn. The laws of Pennsylvania must, therefore, be applied to every transaction respecting those lands ; and in the years 1700 and 1729, it had been made unlawful to purchase any part of them from the Indians. (1 Dali. Laws, 5, 248.) Yet, in July 1754, the Susquehanna and Delaware companies, in defiance of the laws, made a purchase from the Indians ; and without a grant from Connecticut,'or a grant from Pennsylvania, but merely under color of a grant from the Indians (which the acts of assembly declared to be null and void), they, and persons succeeding to their pretensions, have continued, from that time to the present, to annoy the peace, and to insult the government of Pennsylvania, by the most flagrant acts of outrage, usurpation and contumacy; insomuch that even an attempt was made to erect an independent state within her territory. (2 Dali. Laws, 82.) Reviewing, however, the transactions only subsequent to the final decree of Trenton (30th December 1782), we find, that the district of country, called the Seventeen Townships, was all that the Connecticut claimants then occupied. But still, as Pennsylvania had previously issued grants for the same land, she was bound to sustain the rights of her grantees. Every pacific and conciliatory instrument was employed for that purpose, before the state resorted to force or to denunciation. Commissioners were appointed to negotiate a compromise between the adverse claimants : and an act was passed on the 13th of March 1783, to suspend all process against the Wyoming settlers, during the negotiation (P. L. 146); but the commissioners were spurned, baffled and defeated ; and the suspending law was repealed, on the 9th of September 1783, because it was evident, that the clemency and moderation of the legislature “had been mistaken and treated with neglect.” (P. L. 197.) The spirit of conciliation was, nevertheless, indulged much longer. An act was passed on the-15th of September 1784, “ for the more speedy restoring the possession of certain messuages, lands and tenements in Northumberland county, to the persons who lately held the same,” and had been violently evicted. (P. L. 391.) An act of oblivion and pardon was also pass'd, on the 24th of December 1785, as to all crimes and offences committed on or before the 1st of November preceding, under color of the Wyoming controversy ; but the supreme executive council was, at the same time, authorized, to employ a competent body of the militia, in support of the magistrates. To gratify the inhabitants, a part of North-*26 Sl umberland *was erected into a new county, and called Luzerne, on the 25th of September 1786. (2 Dali. Laws, 465, 486.) But the great effort for the restoration of harmony and order, was the act, usually styled “the confirming law,” passed on the 28th of March 1787. This act recites, that “the interfering claims have occasioned much contention, expense and bloodshed ; and the assembly being desirous of putting an end to those evils, by confirming such of the Connecticut claims as were acquired by actual settlers prior to the termination of the dispute (by the decree of Trenton), agreeable to the petition of a number of the said settlers, and by granting a just compensation to the Pennsylvania claimants.” Commissioners were again appointed for carrying the confirming law into effect; but “ when they met, in pursuance of the law, they were interrupted in their proceedings by the combinations, threatenings and outrageous violence of certain lawless people in the county of Luzerne, and obliged to fly for the preservation of their lives ;” aided by persons who were severely wounded on the occasion. The confirming law was thereupon suspended (29th March 1788, P. L. 450, 530) ; and afterwards, on the 1st of April 1790, it was condemned and repealed, as unjust and unconstitutional. (2 Dali. Laws, 786.) During this period of legislative patience and conciliation, it is matter of public notoriety, that every pacific overture was contemned ; every coercive measure was resisted or evaded ; the powers of government were taken into the hands of voluntary associations of individuals ; the sheriffs and other public officers, were menaced and defied ; the commissioners of the government were insulted, assaulted and imprisoned ; the Pennsylvania claimants were waylaid and murdered ; the number of intruders was daily augmented ; and the extent of their encroachments was indefinitely enlarged.
    For the magnitude of this evil, did the laws in force furnish an adequate remedy ? The Connecticut claim was now spread over the whole country, extending beyond the original seventeen townships, throughout the northwestern boundary of the state. Where the land was actually occupied by a Connecticut claimant, no Pennsylvania patentee could safely enter : and the danger increased, if the possession was vacant. The process of ejectment, or forcible entry and detainer, or any other civil process, was not effectual to give to the right of property, protection and enjoyment; and even the force of the militia had failed. The evil was an intrusion upon lands (not to try a title, not to submit to the dispensations of the judicial power, but) to seize, possess and hold by force, violence and terror. There was no law in existence that could afford a remedy ; and yet, there is no man who will contend, that a remedy ought not to be provided.
    *Oould the federal government afford an adequate remedy? The case was not within their legislative or executive powers, either expressly, or as an incident to an express power. It ris a case of domestic violence ; as to which the federal government can only interfere, “on application of the state legislature, or of the executive, when the legislature cannot be convened.” (Const. U. S., art. IV., § 4.) Nor could the judicial power of the United States afford relief. It provides, indeed, for a suit between citizens, claiming grants under different states; but it nowhere provides, for prosecutions by a state against its own citizens, committing offences against her municipal laws. (Ibid. art. III., § 2, Amendments; Acts Congress, 3 vol. 131; 1 vol. 53, §9; Ibid. 55, § 11; Ibid. 57, § 12; Ibid. 58, § 13.) In Commonwealth v. Cobbett, 3 Dall. 467, the principle was discussed and settled ; and in Hush v. Cobbett, the jurisdiction of the federal courts was adjudged to apply only to cases of contract; and not to a case of damages for a libel.
    The competency of the state government to redress the evil, is a necessary inference from the incompetency of any other power, known to orn constitutions and laws, unless it is expressly prohibited. Now, it is not expressly prohibited ; and it cannot, by any act of perversion, be assimilated to an attainder law ; to an ex postfacto law ; or to a law impairing tho obligation of contracts. Nor is it a legislative encroachment upon the judicial department. It decides no question of personal guilt; it inflicts no punishment ; it merely declares in this, as in every instance of the penal code, what shall constitute an offence, and how the offender shall be punished.
    2. Having thus vindicated the subject of the law, from the imputation of being unconstitutional, it is next to be examined, whether there is any de parture from constitutional principles, in the regulations for carrying it into effect.
    In the construction of a remedial statute, the previous mischief is to be considered. Here, the act of assembly describes the offence, in the very terms of the mischief: 1st. “ Taking possession of, entering, intruding or settling on lands, &c., by virtue, or under color of any conveyance of half-share right, or other pretended title, not derived from the authority of this wmmonwealth, &e.” And 2d. “ Conspiring for the purpose of conveying, possessing or settling on any lands, within the limits aforesaid, under any half-share right, or pretended title as aforesaid ; or for the purpose of laying out townships, by persons not entitled or acknowledged by the laws of this commonwealth.” If the description of the offence contains nothing unconstitutional, does the nature of the punishment? No, it is fine and imprisonment; and the offender is to be removed from the premises, of which he was tortiously and unlawfully possessed, after full notice of the law, by proclamation and publishing *in court. (3 Dali. Laws, 703, r*o«5 § 1, 2, 3, 6.) This proceeding by indictment, and the expulsion upon *- conviction, are said, however, to destroy the right of entry, upon which alone the civil remedy of ejectment can be pursued. But the law contemplates no such entry, in the description of the offence; for, let it be repeated, it is a tortious entry to hold by force ; and not a lawful entry, to try a right, that the legislature condemns and punishes.
    After advisement and deliberation, the judges delivered their opinions, seriatim.

    Shippen, Chief Justice, Yeates and Smith, Justices, concurred in declaring, that the act of assembly, on which the indictment is founded, was constitutional, in all its relations.

       The 6th and 7th exceptions were filed, at a subsequent stage of the cause, after the 1st exception had been overruled.

   Brackenridge, Justice.

— The second count in the indictment is founded upon the second section of the act of assembly; and the special verdict finds expressly, that the defendants did conspire for the purpose mentioned in that section. The purpose was, “ to lay out townships in the county of Luzerne, by persons not appointed or acknowledged by the laws of this commonwealth.” Now, the term township indicates a local jurisdiction, for objects of local police, with powers and officers to effectuate the jurisdiction ; and a conspiracy by individuals to erect such townships, is an encroachment upon the rights and authority of the state. It is an offence indictable at common law; and the legislature, with a view more effectually to prevent its commission, had an unquestionable power to increase the punishment.

As to the first section of the act of assembly, I am not prepared to pronounce, that it is unconstitutional; and, consequently, I could not, even on that ground, decide, at present, to arrest the judgment. But it is enough, to observe, that, on the finding of the jury, I shall be ready to give judgment for the commonwealth, on the second count of the indictment, when the subject is brought before us in the circuit court.

       The cause was argued upon the other objections in arrest of judgment, before the supreme court, in December term 1804. See post, p. 316.

         The case was tried before Judges Yeates and Brackenridge, who differed in opinion as to the constitutionality of the intrusion law, but both concurred in submitting that question to the jury, which resulted in the special verdict. The court being divided, no judgment was given in the circuit court, but the question of the constitutionality of the intrusion law, and all others arising on the motion in arrest of judg ment, were reserved for the supreme court in bane. 2 Am. Law J. 287. From the Luzerne Federalist of the 10th May 1802.


author: By the Court.

text:
    *MARCH TERM, 1803.
    The Mayor, &c., of Philadelphia v. Mason.

      Penal action.

    The return to a certiorari to remove the proceedings before the Mayor of Philadelphia, under an ordinance against huckstering, did not state a conviction, the offence, nor the place where the business was conducted: Held, that it was error.
    This was a certiorari to remove the proceedings from the mayor into this court; to which he made the following return under seal:
    The Mayor, Aldermen and Citizens
       ) November 19, 1800. v. >• Huckstering. Elizabeth Mason. ) Amicable action.
    The defendant appeared before me by consent, and was charged, on the oath of Barney Cart, and the affirmation of W. Johnston, clerks of the High Street market, in her presence, with being a person who follows the business of a huckster, and selling provisions, &c., at second-hand. And that the defendant did this day offer for sale, within the limits of the said market, butter, veal, pork, fowls, eggs and nuts, contrary to an ordinance in that case made and provided. I, therefore, adjudge, that the defendant pay a fine of 11. 17s. Qd., and costs 2s. Qd.

    To this return, a great variety of exceptions were filed ; but the argument and decision proceeded principally upon the following :

      1. It is not stated, at what place the defendant followed the business of a huckster.
    2. It is not stated, in what city High Street market is situated.
    *3. It is not stated, against which clause of the ordinance the de- poR? fendant had offended. L
    4. It is not stated, that the defendant was convicted, though judgment is rendered against her.
    The exceptions were supported by McKean and Porter, who cited,
    1 Burn. 409, 142; Ordin. 29th March 1798, § 16; Bosc. 12; 1 Burn. 411; 5 State Laws, 265; 1 Burn. 413; 3 Mod. 159; 2 Burr. 1163; 4 Ibid. 2063; 5 T. R. 253; 2 Burr. 1176; Hullock 19, 200, 201; Bull. N. P. 333; Gilb. C. P. 225, 234-5; Salk. 378; 2 Hawk. 250; 1 Str. 316; 2 Ibid. 1120.

      Dickerson (the solicitor for the corporation) endeavored to answer the exceptions,
    and cited 1 Str. 316; 10 Co. 125; 1 Bac. Abr. But—

       An exception that the words “of Philadelphia” had been omitted in the corporate title, was waived. There were several other cases, depending on the decision in this case.

   By the Court.

— Some of the objections are insurmountable. In the first place, it is not sufficient to state the evidence ; but the magistrate must go on to declare, that the offence was committed, and the defendant thereof convicted. Here, neither the offence, nor the conviction, are to be found in the proceedings. In the next place, we have no statement where the defendant carried on the business of huckster ; and it might be, where it was no offence to do so ; or where the corporation had no jurisdiction to punish it as an offence. The proceedings are, therefore, manifestly erroneous, and must be set aside.

       s. p. Philadelphia v. Nell, 3 Yeates 475; Commonwealth v. Gillingham, 1 Brews. 396; Philadelphia v. Mintzer, 2 Phila. 43; Philadelphia v. Roney, Id. 43.


text:
    Black, Plaintiff in error, v. Wistar.

      Waiver of error. — Amendment.
    Error may be waived, by consent.
    Where there is a variance between the writ and the count, the writ may be amended by the preecipe, and if the execution varies from the judgment, the former may be amended by the latter.
    In Error from the court of Common Pleas of Northumberland county. The case was briefly this : William Wistar brought an action of debt against James Black, in the common pleas, to April term 1798. The writ demanded a debt of 766?. 9s. 5cl. The declaration demanded a debt of 766?. 4s. 5c?., on a bill obligatory for that sum, dated the 28th of May 1796, and payable in three months, with interest. On the 10th of September 1798, judgment was entered for 869?. 3s. 6c?., with costs. A fi. fa. issued to January term 1799, for 766?. 9s. 5c?., which was regularly returned, “stayed by order of plaintiff’s attorney,” with an additional indorsement, signed by Black, the defendant below, in these words: “ I agree, that the sheriff return a levy on this writ, as of the term to which it is returnable and such a return was accordingly made, at a subsequent period. On the 18th of July 1800, the sheriff held an inquest, by virtue of the above fi. fa. and returned the inquest annexed to the writ. The inquest condemned the property ; and it was afterwards sold on a vend, exp., when Wistar became the purchaser.

      *The following errors were now assigned :
    1. The count varies from the writ, in the sum demanded.
    2. The judgment varies from both writ and count, in the sum recovered.
    3. The judgment was entered after the defendant’s appearance, not in term time, nor at the settlement of the docket, nor according to any rule.
    4. The execution varies from the judgment, in the sum for which it issued.
    5. The execution was returned by the sheriff to January term 1799, as having been “ stayed by order of plaintiff’s attorney:” but after that, another return was made, to wit, “ that the lands and tenements of the defendant had been levied upon and an inquest was held upon the estate, in July 1800, by virtue of which the land, &c., was condemned, without any other authority, than the fi.fa. that had been returned as aforesaid, to January term 1799.
    6. The general errors.
    The case was argued by W. Tilghman, for the plaintiff in error,
    who cited the following authorities, principally to show, that the variances in the writ, count, judgment, and execution were fatal. Cro. Eliz. 198, 434; 5 Com. Dig. 25, C. 13; Cro. Eliz. 829, 308; Boh. Inst. 534; Reg. Plac. 282; 8 Vin. Abr. 474, pl. 1, 4, A; 2 Bro. Error, pl. 7; 9 Hen. VI., 38; 9 Vin. Abr. 474, pl. 6; Co. Litt. 288 b; 1 Dall. Laws, 73, § 9; 3 Bac. Abr. 369, P.; Ibid. 570; Roll. Abr. 778; 3 Com. Dig. 313, I., 3.

      McKean, for the defendant in error,
    proved that the judgment had been entered by the consent in writing of the defendant’s attorney, for the exact sum agreed upon. He then moved for leave to amend the execution by the judgment; citing the following authorities, to show the extent to which amendments had been permitted, in every stage of a suit. 8 Co. 157; 16 & 17 Car. II.; 1 Vent. 100; 5 Geo. I., c. 13; 2 W. Bl. 836; 1 Sup. Vin. Abr. 228, pl. 6; 1 T. R. 782; 1 W. Bl. 462; 2 Vent. 152; 8 Hen. VI., c. 15; 14 Edw. III.; 1 Wils. 303; 6 T. R. 450; 1 Sup. Vin. Abr. 210, pl. 9.
   The Court (adverting to the proceedings by consent, to the means of amending the process by the praicipe, and they?, fa. by the judgment) declared they had no doubt upon the case.

Judgment affirmed.