source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Jackson at al. v. Winchester.

      Practice. — Evidence.
    Issues were joined on the pleas of non assumpsit, and payment: plaintiffs had been obliged to send a commission to another state, to prove the assumption; and when the jury was about to be impannelled, defendant moved to strike out the former plea: Held, that he should not be allowed to strike it out.
    Nothing that passes before a judge, on a question, of bail, can be evidence on the trial of a cause, unless it was clearly admitted as a fact, by the opposite party.
    The following points occurred in this case:
    I. The issues in this case were joined on pleas of non assumpsit, and payment. When the jury were about to be impannelled, the defendant’s counsel moved to strike out the former plea, by which (leaving only the affirmative plea of payment) he would be entitled to the conclusion in addressing the jury. The plaintiff’s counsel objected, with an allegation, that upon the issues, as they now stood, they had been obliged to send a commission into another state, to prove the sale and delivery of the goods, for which the action was brought.
    And The Court refused to allow the plea of non assumpsit to be stricken off.

    *11. The defendant alleged, that the plaintiffs had agreed to take rmona payment of the debt, for which the action was brought, in Tennessee militia certificates, if David Allison approved of it. Allison approved in writing of the proposed j>ayment, and the certificates were delivered to him : but it became a question, how far that delivery was satisfaction to the plaintiffs ? And Allison being dead, M. Levy offered himself as a witness to prove that, on a question of bail, before McKean, C. J., Allison deposed that the plaintiffs had debited him with the amount of the certificates in their account-current. The plaintiffs’ counsel objected to the evidence, and—

         s. c. 2 Yeates 529.

         A defendant has not a right to strike off a plea, but it rests with the court to allow or refuse him permission to do so; and if the plaintiff has not been put to any trouble or expense, to prove the issue made by a plea, the defendant may, on motion, obtain leave to strike it out, more especially, if the motion is made at a term previous to that of the trial of the cause. Wikoff v. Perot, 1 Yeates 38; Rankin v. Cooper, 2 Bro. 13; Waggoner v. Line, 3 Binn. 589; Weidman v. Kohr, 13 S. & R. 24. But a defendant will not be allowed, at the moment of trial, to withdraw his plea, and substitute another, changing the issue. McDaniels v. Train, 1 Bro. 342. Whilst this work was in the press, the same question occurred in the circuit court of the United States; and the judges decided, that where the pleas were non assumpsit and payment, the defendant might, of course, strike out the plea of non assumpsit, without applying to the court, at any time before the jury were actually sworn. They said, it operated tc relieve the plaintiff, from the necessity of proving the assumption, and was, there lore, for his advantage. But they distinguished it from the case of adding a plea, as essentially different; that case requiring the authority of the court. Vuyton v. Brieulle, October term 1806 (1 W. C. C. 467). Dallas, for the plaintiff. Ingersoll and Du Ponceau, for the defendant

   By the Court.

— Nothing that passed before the judge, on the question oi bail, can be evidence on the trial, unless it was clearly admitted, as a fact, by the party.

W. Tilghman and Hallowell, for the plaintiffs. M. Levy and Dallas, for the defendant.


author: Shippen, Chief Justice. Smith, Justice.

text:
    Bussy v. Donaldson.

      ColUsion. — Pilots. —Damages.

    The fact that a ship is in charge of a licensed pilot, does not relieve her owners from liability for a collision, occasioned by negligence.

    In an action for a tort, the plaintiff is entitled to recover damages, commensurate with the injury, and equivalent to a full indemnity. Smith, J., dissenting.
    This was an action on the case, against the owner of the ship Edward, for running foul of and sinking the brig Katy, at the piers in the river Delaware, by negligence, and improvident and unskilful management, &c. The defence was made on three grounds : 1st. That the injury was occasioned by unavoidable accident, for which no reparation ought to be exacted. 2d. That as the ship Edward was in the charge of a public pilot of the port (a person not the choice, nor the voluntary agent, of the owner), when the injury was committed, the owner was not legally responsible. And on this point, the following authorities were cited : 3 Bac. Abr. 591-2; 7 Geo. II., c. 15; 3 Dall. Laws, 422, § 8, 10, 15; Wesk. 395; Beawes, 122; 1 Emerig. 402-3; 1 Bl. Com. 431-2; 1 Dom. 241, tit. 16, § 3; Salk. 442, 440; 3 Bac. Abr. 560. 3d. That the amount of the injury actually sustained, is not the measure of damages, in the present action. Purviance v. Angus, 1 Dall. 180.
    'After argument, by W. Tilghman, M. Levy and Rawle, for the plaintiff, *[207 and by Ingersoll, E. Tilghman and Lewis, for the *defendant, the judges delivered their opinions to the jury, in substance, as follows :

       The China, 7 Wall. 63; The Merrimac, 14 Id. 202; Sherlock v. Alling, 93 U. S. 100; The English law is otherwise. Smith v. Con-dry, 1 How. 28; The China, id supra, and easea there cited.

   Shippen, Chief Justice.

— The first object that naturally presents itself, is to ascertain, whether the injury complained of was the consequence of gross negligence, or of mere accident ? This falls, exclusively, within the province of the jury ; but if they shall think, that the injury was the consequence of gross negligence, then the plaintiff is entitled to recover damages; unless some rule of law interposes to prevent it, under the peculiar circumstances of the present case.

In considering the point of law, we are led into a field of inquiry equally interesting for its novelty and its importance ; for although the defendant admits, that in ordinary cases, the owner of a ship is answerable, civiliter, for the injuries committed in the course of his service, by the master and crew ; it is insisted, that a pilot, under the regulations of our act of assembly, for his examination and appointment, is not to be regarded as the agent or servant of the owner, but rather as the officer of the public.

. Though it is not agreeable to deliver opinions on important points of law, s iddenly started in the course of a trial, I think, I can safely pronounce, on the pi «sent occasion, that the distinction which has been taken, is rather plausible than solid. The legislative regulations were not intended to alter or obliterate the principles of law by which the owner of a vessel was previously responsible for the conduct of the pilot; but to secure, in favor of every person (strangers as well as residents) trading to our port, a class of experienced, skilful and honest mariners, to navigate their vessels safe up the bay and river Delaware. The mere right of choice, indeed, is one, but not the only reason, why the law, in general, makes the master liable for the acts of his servant: and in many cases, where the responsibility is allowed to exist, the servant may not, in fact, be the choice of the master. For instance, if the master of a merchant vessel dies on the voyage, the mate becomes master; and the owner is liable for his acts, though the owner did not hire him, originally, nor expressly choose him to succeed the master. The reason is plain : he is in the actual service of the owner, placed there, as it were, by the act of God. And so, in the case under consideration, the pilot was in the actual service of the owner of the ship, though placed in that service by the provident act of the legislature. The general rule of law, then, entitles the plaintiff to recover ; and we have heard of no authority, we can recollect none, that distinguishes the case of a pilot, from those numerous cases, on which the general rule is founded.

As to the assessment of damages: it is a rational, and a legal principle, that the compensation should be equivalent to the injury. There may bo some occasional departures from this principle; *but I think it be found safest to adhere to it, in all cases proper for a legal inde fieation, in the shape of damages. will [*208

Smith, Justice.

— I perfectly concur in the opinion expressed by the Chief Justice, upon the responsibility of the owner of a ship. But I confess, that I am not prepared to accede to his opinion, on the assessment of damages. I take this distinction. In a case of contract; or in a case of damage by gross negligence; the jury should always, I think, give a compensation to the full amount of the injury actually sustained. But if an injury is done, in a way merely fortuitous and accidental, I think, the jury have a legal and salutary discretion upon the subject.

Brackenridge, Justice, concurred generally in the sentiments of the Chief Justice.

Verdict in favor of the plaintiff for $2500.

         s. p. The Eliza v. The Decatur, 2 Whart. Dig. p. 685, § 524. A pilot, while he has charge of a vessel, is the agent of the owner, and although it is under the command of a pilot, who has the entire control and management of it, the owner is liable to the injured party, when, through the fault or negligence of any one on board, his vessel injures another vessel, by running foul of it. Yeates v. Brown, 8 Pick. 23. The rule was the same in England. Neptune The Second, 1 Dods. 467; Bowcher v. Noidstrom, 1 Taunt. 568. See also Fletcher v. Braddick, 5 Bos. & Pul. 182. But the liability of the master and owner, in such a case, was removed by Stat. 52 Geo. III., c. 39, § 30. Bennet v. Moita, 7 Taunt. 258; Ritchie v. Bowsfield, 7 Id. 309. If, in the case of a collision, the vessel in fault is under the command of a pilot, and the master is absent at the time, he is not responsible for the damage (Snell v. Rich, 1 Johns. 305), and it has been said that even if the master were present, he would not be liable in such a case. Yates v. Brown, ut supra. A captain of a sloop of war has been held not to be responsible for the damage done by a collision, when the accident happened during the watch of the lieutenant, since he acted independently of any authority from the captain. Nicholson v. Mouncey, 15 East 384; but see Bowcher v. Noidstrom, ut supra, and a case cited by Lawrence, J., 1 Taunt 569.

         The account exhibited for the whole expense of raising and repairing the brig, amounted to 13102. 8s. 9d.


author: Shippen, Chief Justice.

text:
    Waters’ executors v. McClellan et al.

      Fraud. — Retention of possession. — Distress.
    The mere fact that a purchaser at a judicial sale permits the former owner to retain the possession, is not a badge of fraud, in Ponnsylvania.

    One who shows title under a distress for rent, need not prove that it was made upon the premises, as against third persons.
    In trespass, for selling the plaintiff’s cattle, under an execution against a third person, lawfully in possession, the defendant may show, in mitigation of damages, that such third person had been to an expense in feeding them, which exceeded a fair compensation for their use.
    Trespass for goods of the testator, taken and sold by the sheriff, on an execution issued against Dewees. The principal part of the goods were claimed by the testator, under a distress and sale, which he had also executed against Dewees; but he had left the goods in Dewees’ possession for four or five years. The charge contained the following points :

       Tried in the circuit court, West Chester, 29th of May 1800, before Shippen, Chief Justice, and Yeates, Justice.

       The rule is very old, that as to third persons, possession of chattels determines their ownership, and that all transfers of personal chattels, where the possession is not also changed, are fraudulent in law. The decisions on this subject have been uniform in the federal courts, and with few exceptions, the rule has been inflexibly upheld, by the courts of the state of Pennsylvania. The rule has been equally applied whether the contract was that of mortgage, or of absolute sale. Hamilton v. Russell, 1 Cr. 309; Meeker v. Wilson, 1 Gallis. 419; Clow v. Woods, 5 S. & R. 275; Cunningham v. Neville, 10 Id. 201; Babb v. Clemson, Id. 419; Welsh v. Bekey, 1 P. & W. 57: as to what is a sufficient delivery of possession, see Cameron v. Montgomery, 13 S. & R. 128. (Dawes v. Cope, 4 Binn. 258.) If, by a contract for the sale of chattels, the vendor and vendee agree, that the possession shall pass to the vendee, but that the property shall remain in the vendor, until the whole purchase-money shall have been paid, such agreement is fraudulent in law, and the goods may be taken in execution, as the property of the vendee. Martin v. Mathiot, 14 S. & R. 214. But, after a public sale of chattels, by process of law, they maybe left in the possession of the former owner, and they cannot be sold again for a debt duo at the time of the sale, unless there is fraud in fact. Myers v. Harvey, 2 P. & W. 478. The delivery of possession is, however, not necessary to the validity of an assignment, where such delivery has been rendered impossible, by an intervening execution, before the goods could be delivered to the assignee. Wilt v. Franklin, 1 Binn. 502. In what cases, transfers of chattels need not be accompanied by a change of possession, see Meeker v. Wilson, and Clow v. Woods, ut supra.

       Rose v. Story, 1 Penn. St. 190; s. p. Jenkins v. Eichelberger, 4 Watts 121; Hook v. Linderman, 64 Penn. St. 499; Wylic’s Appeal, 90 Id. 210; Stadtfield v. Huntsman, 92 Id. 53; Heppe v. Speakman, 3 Brewst. 548; Stiles v. Whitaker, 1 Phila. 271; Euwer v. Van Giesen, 6 W. N. C. 363; Brunswick v. Hoover, 10 Id, 219; Boynton v. Isaacs, Id. 190.

         Craig’s Appeal, 77 Penn. St. 448; Walter v. Gemant, 13 Id. 515; Maytier v. Atwater, 88 Id. 496; Besbing v. Third National Bank, 93 Id. 79; Miller v. Irvine, 94 Id. 405.

   Shippen, Chief Justice.

— 1st. It is incumbent on the plaintiff, to prove his property in the goods, which were taken by the sheriff; and to do this, he has produced evidence of a former distress and sale of the same goods, for rent due from Dewees to him. But the defendants answer, that the distress was fraudulent; because (among other reasons) the goods were left in the possession of the debtor. In the case of a voluntary sale of goods, the law, both in Pennsylvania and England, regards the continuance of the debtor’s possession as a badge of fraud. In England, the law is the same, where the sale is made by the sheriff ; but in Pennsylvania, a different rule, in that case, has prevailed; and where a relation or friend, after a fair purchase, at public sale, leaves the goods in the occupancy and use of the debtor, it never has been deemed a fraud upon creditors. As, therefore, the purchase, on the present occasion, was not by a private bill of sale ; but at an open, public vendue; the continued possession *by Dewees r*or>Q does not, in the opinion of the court, justify the defendant’s taking *- and sale.

2d. It has been objected, for the defendants, that the plaintiff was bound to show, that the distress was made on the premises; whereas, at least, a part of the goods appears to have been distrained elsewhere. However available this objection might have been, upon a replevin between the original parties, we do not think, that third persons can take advantage of it.

3d. It is urged, that there were a number of young cattle taken on the distress ; and that as these have been fed and reared, by the care and cost of Dewees, he had acquired a property in their increased value. Of the truth and operation of this allegation, the jury will consider; and if they are of opinion, that the expense of maintaining, has exceeded a fair compensation for the use of the cattle, they will make a reasonable deduction from the plaintiff’s demand.

Verdict for the plaintiff.

         This was an erroneous statement; see Sturtevant v. Ballard, 9 Johns. 342.

       The defendant’s counsel cited the following cases on this point: 3 Co. 81; 2 T. R. 594, 5, 6; 1 Wils, 44. But see Levy v. Wallis, ante, p. 167-8; Chancellor v. Phillips, post, p. 213; United States v. Conyngham, post, p. 358; s. c. Wall. C. C. 178


text:
    Morris’s Lessee v. Neighman.

    Settlement.— Yaeati/ng warrant.

    The settlement required by the aot of 1*792, § 9, need not be made within the time prescribed therein, if the warrant-holder was, by force of arms, prevented from making such settlement, provided he persisted in his endeavors to effect it, after the removal of the force; and in that ease, he has not incurred a forfeiture of his land.
    Where a forfeiture of land, granted by the commonwealth, has been incurred, no advantage can be taken of it, except by the state, in the form directed by law.

    Ejectment for land on the north-west of the rivers Ohio and Allegheny and Conewango creek.

      Ross, for the plaintiff. Brackenridge and Young, for the defendant.
    The plaintiff claimed under a warrant,
    dated the 4th of March 1793, on which a survey was executed, on the 12th of November, 1794; but he had made no endeavor to settle the land, until July 1796.
    The defendant claimed as an actual settler,
    under a settlement commenced in the year 1796, prior to any attempt by the plaintiff ; and upon a presumption that the plaintiff had incurred an absolute forfeiture of his rights, by not making a settlement within two years from the date of his warrant, according to the terms of the act of the 3d of April 1792. (3 Dali. Laws, 209.) But—

         Tried at Pittsburgh circuit court, May 1800, before Yeates and Smith, Justices, s. c. 2 Yeates 450; 2 Sm. Laws, 211, which are fuller reports of the case.

         See Ewalt’s Lessee v. Highland, ante, p. 161; Commonwealth v. Cose, ante, p. 71; McLaughlin’s Lessee v. Dawson, post p. 221, and the notes to these cases.

   By the Court.

— In the charge to the jury, two points were expressly decided : 1st. That the plaintiff did not forfeit his rights, by not making a settlement within two years from the date of his warrant. It is notorious, that an Indian war existed from the year 1790, until General Wayne’s Ireaty, which was made on the 3d of August 1795, and ratified on the 23d *2101 December 1795. The ratification of this treaty is to be considered as the terminus d quo *a man might safely begin a settlement on the western frontier of Pennsylvania ; and if, after that epoch, actual settlers or grantees persisted in their endeavors to make a settlement, they would not incur a forfeiture of the land. 2d. That even if it were a case of forfeiture, no individual could take advantage of it, by entering on the land : the advantage could only be taken by tbe commonwealth, whose officers might issue new warrants, in the form prescribed by the act of assembly.

Verdict, accordingly, for the plaintiff.


text:
    Bell’s Lessee v. Levers.

      Shifted warrant. — Evidence.—Fraud.—Laches.
    A warrant that loses its descriptive location, by a prior warrant, may be laid on any vacant land.
    A survey made on a shifted warrant, only confers title from its return.
    The letter of a deputy-surveyor to his assistant, directing him to make a survey, is primA fade evidence.
    No person can derive title under a location, that claims under one who connived with a public officer in the commission of a fraud.
    What is such lapse of time, as amounts to the dereliction of an inceptive right, by application.

         s. c. 3 Yeates 23.

   Ejectment for land in Northampton county. The charge contained the following points:

By the Court.

— 1st. A warrant, which loses its descriptive location, by a prior warrant, may be laid on any vacant land. It has been the uniform practice of the surveyors so to do ; and the practice has long received the sanction of the land-office.

2d. A deputy-surveyor gave an order to his assistant, to execute a survey ; and before it was actually executed, he died ; but it was alleged, that neither the assistant, nor the party, knew of his death, until after the execution of the survey. The truth of the allegation should be examined ; but in an old transaction, if the title depends upon it, the examination should not be very strict; and every doubt should operate in favor of the validity of the survey.

3d. This is the case of a lost application ; and in cases of this kind, above all others, there must be due diligence employed, to designate and effectuate the claim: for if the survey is made in a place different from that designated in the application, the land-office can have no notice of the fact, until a return is made ; and it would be hard, that a subsequent purchaser, without notice, and without the means of obtaining notice, when he purchases, should be affected by the claim.

4th. In the case of a warrant, neither the negligence, nor the fraud, of the public officer, shall work an injury to the party. But if the party assists in committing the fraud, not only the party himself, but every person claiming under him, or deriving title directly through him, shall be debarred from taking advantage of the transaction.

5th. If an application, made and entered in August 1765, is not acted upon until 1773 ; and a caveat, entered in 1775, is the first notice of a survey, the lapse of time amounts to a dereliction of the inceptive right, as the courts of Pennsylvania have often decided.

       This cause was tried in the circuit court, Northampton county, before Shippek, C. J., and Yeates, J.


text:
    *Beissell v. Sholl. Wagoner v. Same.

      Riparian owners.

    Every one has a right to use the water passing through his land, as he pleases, provided, he does not injure his neighbor’s mill; and that, after using the water, he returns it to its ancient channel.

       A riparian owner is only entitled, as against a lower proprietor, to the use of so much of the stream as will not materially diminish its quantity, nor corrupt its quality. Wheatley v. Chrisman, 24 Penn. St. 298. He has no right to pollute the stream so as to render it unfit for domestic purposes. Sanderson v. Pennsylvania Coal Co., 86 Id. 401; s. c. 94 Id. 302. But he may use the water for ordinary, reasonable domestic purposes, oven to exhaustion. Slack v. Marsh, 11 Phila, 543.

         Tried m the circuit court, Northampton county, June 1800, before Shipper, C. J. and Yeates, J.

   Case, for diverting a water-course. The court left the facts to the jury, under this general statement of the law : “ That every man, in this country, has an unquestionable right to erect a mill upon his own land ; and to use the water, passing through his land, as he pleases ; subject only to this limitation, that his mill must not be so constructed and employed, as to injure his neighbor’s mill; and that, after using the water, he returns the stream to its ancient channel.”

       But the common-law doctrine, that fresh water rivers, in which the tide does not ebb and flow, belong to the owners of the banks, has never been applied to the Susquehanna, and other largo rivers in Pennsylvania. Such rivers are navigable, although there is no flow and reflow of the ti Carson v. Blazer, 2 Binn. 475. s, and they belong to the commonwealth.


text:
    *SEPTEMBER TERM, 1800.
    Commonwealth v. Fitch.

      Forcible entry.

    The inquisition in a case of forcible entry and detainer, stated, that A. “ was possessed in his demesne as of fee, &c., and continued so seised and possessed," until “he was thereof disseised:” IWd, that it was not error.
    Certiorari, to remove the judgment and proceedings in a case of forcible entry and detainer, from Luzerne county. The inquisition stated, “ that Nathan Beach was possessed in his demesne as of fee, &c., and continued so seised and possessed, until the defendant did enter, and him the said Nathan Beach thereof disseised,” &c.
    It was objected, that the prosecutor is stated to have been only possessed of the premises, whereas, the evidence proved him to have been seised. But—

       s. c. 3 Yeates 49.

   By the Court.

— There is some informality in the expressions; but surely, stating that the prosecutor was disseised, necessarily implies a previous seisin.

Judgment affirmed.

         This was not the principle upon which the court decided the case: see 8 Yeates 50.


text:
    Sharp v. Pettit.

      Dower.

    No damages or costs are recoverable, in dower, where the husband did not die seised.

    Writ of Dower. The inquisition stated, that the husband did not die seised of the premises; and found damages for the detention of dower, with costs.

      JRoss moved to quash the inquisition, so far as respects the damages and costs.

         s. c. 3 Yeates 38.

       Benner v. Evans, 3 P. & W. 454; Barnet v. Barnet, 15 S. & R. 72; Leineweaver v. Stoever, 17 Id. 297.

   By the Court.

— It must be so ; but let judgment be entered for the lemandant, without damages or costs.


author: Smith, Justice. Shippen, Chief Justice.

text:
    *Chancellor v. Phillips et al.

      Lien of execution.

    IÍ goods levied on, be suffered to remain in the defendant’s possession, the loin is lost, as against a hov-'i flit purchaser.
    The following case was submitted for the opinion of the court:
    On the 2d of June 1798, a levy was made by the sheriff on a kiln of unburnt brioks, and other property, by virtue of a fi. fa., for a debt of 149/. 15s., with interest and costs. The bricks were suffered to remain in this state, until the 14th of April 1799, when, on advertising them for sale, it was found that one of the defendants had sold them to Thomas Harrison, on the 1st of December 1798, without giving any notice of the levy. The sheriff, at the time of the levy, employed a man to call at the brick-yard, occasionally, but did not keep any person constantly there ; nor did it appear that T. Harrison had &ny notice of the bricks being subject to the above execution, until about the time of advertising them for sale.
    The question proposed was, whether Harrison was entitled, under the circumstances of this case, to hold the bricks discharged altogether from the lien of the plaintiff’s execution ; or must account to the sheriff for the amount of the execution, not exceeding the value of the bricks ?
   Smith, Justice.

— It is useless, to cite English authorities in this case; for, it has been repeatedly decided in our courts, that the law is not the same in Pennsylvania.

Shippen, Chief Justice.

— There is, however, an obvious and material distinction between a levy on household furniture, and on merchandise or ■goods for salo. In the former case, the court has never allowed the plaintiff to lose the lien of a prior execution levied, because, on principles of humanity, he allowed the furniture to remain on the premises, in the possession of the defendant. But it would be going farther than the reason of our decisions, and might introduce collusion and fraud, if we were to authorize or countenance such a practice, indiscriminately, in every case.

Morgan, for the plaintiff. Hallowed, for Harrison.

Bv the Court. — We are of opinion, therefore, that the purchaser of the bricks is entitled to hold them, entirely discharged from the lien of the execution.

        а) The manuscript of this note was read on a recent trial, involving the same question; and the judges intimated a doubt of its accuracy. I find, however, that a difference between the law in England and in Pennsylvania upon this subject, has been repeatedly stated by the judges of the supreme court; Levy v. Wallis, ante, p. 167; Waters v. McLellan, ante, p. 208; though the rule has been adjudged to be the same, in both countries, by the circuit court of the United States, upon full argument and deliberation. See United States v. Conyngham, post, p. 358.


text:
    Anonymous.

      Certiorari.

      Qucere i Whether a certiorari, to remove the proceedings in a caso of forcible entry and detainer, operates as a mpersedeas.

    Certiorari, to remove the proceedings in a case of forcible entry and detainer. Ingersoll urged the immediate hearing of the case, in order to avoid the inconvenience of a sentence of restitution, when great error existed on the record.
   By the Court.

— It has often being decided, that a certiorari does not operate as a supersedeas, in a proceeding under the landlord and tenant act. 1 Dall. Laws, 611. But it has never been so decided, in the case of a proceeding, under the statutes against forcible entry and detainer.

       Stewart v. Martin, 1 Yeates 49.


text:
    *Freeman v. Ruston.

      Ca. sa. — Lien of judgment.

    The lien of a judgment on the defendant’s real estate is suspended, during his imprisonment on a ca. sa. ; and if the land be sold, under the execution of a junior judgment-creditor, pending such imprisonment, the plaintiff in the ca. sa. is not entitled to participate in the proceeds of the sale, though the debtor be subsequently discharged under the insolvent law.

      Venditioni Hxponas. A rule being obtained on the sheriff of Philadelphia county, to bring into court the money levied on this execution ; another rule was also entered, to show cause why Samuel Coates should not receive, out of the money, an equal dividend or proportion with other judgment creditors, whose judgments were entered on the same day, and who had not issued writs of ca. sa. And thereupon, a case was stated for the opinion of the court, comprising the following facts :

      “On tbe 21st day of March 1796, Samuel Coates obtained a judgment in the supreme court against Thomas Ruston. A writ of error was taken out by the defendant, returnable to July 1797, and judgment affirmed in the high court of errors and appeals ; and the record being remitted, a ca. sa. was sued out of the supreme court, returnable to December 1797, on which (and other writs of ca. sa. issued at the suit of other plaintiffs), the defendant was committed to jail; and remained in custody until the 21st day of November 1798, when he was discharged from confinement, by virtue of the several acts of assembly for relief of insolvent debtors, for the benefit of all of which he petitioned.
    “ Prior to his said discharge, the above venditioni exponas was issued, returnable to September term 1798 ; and on the 12th day of July 1798, certain messuages, &c., were sold by the sheriff, by virtue of the said execution, for $13,320. The purchasers at these sales were themselves judgment-creditors of the said Thomas Ruston. The sum of $11,451 was paid on account of the purchases, before the discharge of Dr. Ruston ; and the purchasers have retained in their hands $1869, part of the purchase-moneys, on account of their own judgments ; which judgments are, however, subsequent in *date to that of Mr. Coates ; but no writs of ca. sa. were ever issued r4. out thereon. The sheriff has paid sundry prior judgments out of the L proceeds of the sales ; and there remains in his hands, or within his power, the sum of $8866.17, including the balance of $1869, which the purchasers have retained on account of their judgments as aforesaid. All of which, however, for the purposes of this agreement, are considered as being in court, and liable to such distribution as the court shall direct.
    “ If the court shall be of opinion, that Samuel Coates is entitled to an equal dividend or proportion of the said moneys, with other creditors by judgment of the same date, who have not issued writs of ca. sa., then the rule to be made absolute, and the parties in case of disagreement, as to the sums and portions, agree to appoint three men to determine their proportions.”

      Rawle, on behalf of Samuel Coates,
    referred to the 17th and 19th sections of the act of assembly, under which Ruston had *been dis- r*216 charged as an insolvent debtor (4 Dali. Laws, 274), and contended, *- that by the force of the terms there used, the judgment continued a lien, upon the debtor’s discharge, notwithstanding a ca. sa. had been previously issued. Indeed, a judgment is constituted a lien by the constitution and laws of Pennsylvania, in the nature of a mortgage, and it must ultimately be satisfied out of the real estate, without regard to the process, either against person or goods, to which a plaintiff may first resort. (1 Dall. Laws, 262.) The law in England is different. There, a ca. sa. was considered so complete a satisfaction, that if the debtor died in prison, the creditor had lost all remedy, until the statute of 21 Jac. I, c. 24, was enacted to afford him relief. But there are sufficient reasons for the difference. In England, real estate cannot be sold for the payment of debts, as it may in Pennsylvania. In England, too, the insolvent acts are gratuitous and occasional, temporary in duration, and restricted in objects; but in Pennsylvania, they are constitutionally ordained, permanent and universal. (Const. Art. LX., §16.)

      W. Tilghman, for the assignees of Ruston, contended,
    that Coates had lost the lien of his judgment, by issuing a ca. sa. That a ca. sa. amounts to a legal satisfaction of the debt, is the settled law of England; and there is no reason to depart from it here. Bloomfield's case, 5 Co. 86 ; Hob. 56-62. Nor can the terms or the principles of the insolvent law affect the case. The sheriff’s sale was made on the 12th of July 1798, and Ruston was not discharged until the 21st of November following, before which the greater part of the purchase-money had been actually paid to the sheriff. The state of the fact and the law, when the property was sold and the price received, must govern the decision, not matter arising ex post facto. And the act of assembly, when it provides for the distribution of the lands of the debtor, at the time of his discharge, can never be fairly construed, retrospectively, to unravel, revise and cancel sales and payments, and distributions, all regular at the time that they occurred. It is true, that the 17th section of the act continues in force all judgments by which the debtor was bound, at the time of his discharge; but if the ca. sa, against the person extinguished the lien upon the estate (which is the very point to he decided), then Ruston was not bound by Coates’s judgment, at the time of his discharge ; and such is the necessary exposition of the law, when *the p2i7 17th and 19th sections are considered together, as to the fund, the *- existing fund at the time of discharge, which is to bo distributed among the creditors. The adverse doctrine would give the execution-creditor two reniidies, contrary to the principles of the-common law: it would open a door for collusion between the debtor and bis ca. sa. creditor, and it would involve the relative rights of creditors in endless perplexity and uncertainty, whenever an insolvency of a debtor happened or even the prospect of it was in view.

         Sect. 17. “ That no debtor, who shall obtain an order of discharge as aforesaid, shall, at any time thereafter, be imprisoned by reason of any judgment obtained for payment of money only, or for any debt, damages, costs, sum and sums of money, contracted, accrued, occasioned, owing or growing due, before the date of the said debtor’s deed or assignment, but that upon every arrest upon such judgment, or for such debt, damages, costs, sum and sums of money, it shall and maybe lawful for any judge of the court, where the process issued, upon showing a copy of the order of discharge, certified by the clerk of the court where the same is recorded, under seal of office, to release and discharge the said debtor out of custody, and the said judge is directed so to do, so that the said debtor, if arrested or detained on mense process, do give a warrant of attorney to appearto the action oractions on which he is so arrested or detained, and to plead thereunto: Provided, that the discharge of any debtor by virtue of this act, shall not acquit any other person from any debt, sum or sums of money, or any part tnereof, but that all other persons shall be answerable for the same, in the game manner as before the passing of this act, and all mortgages, judgments and exo cutions, whereby the goods and chattels, lands and tenements of the said debtor shall be bound, shall remain good and effectual in law, and shall be first satisfied out of the debtor’s estate, according to their priority of lien, in the same manner as if this act had never been passed.”
      Sect. 19. “That notwithstanding the discharge of any debtor, by virtue of this act, all and every debt or debts, due and owing from such debtor, and all and every judgment and judgments had and taken against him, shall stand and be good and effectual in law, to all intents and purposes, against the lands, tenements, hereditaments, goods and chattels of such debtor, which he, or any other person or persons in trust for him, at the time of his assignment, hath or have, or at any time thereafter shall or may be any ways seised or possessed of, interested in, or entitled to, in law or equity, except the necessary wearing apparel and bedding for himself and his family; aud if he be a mechanic or manufacturer, his tools, not exceeding in value the sum of fifty dollars ; and it shall and may be lawful for any of his creditors, or his or their executors or administrators, to take out a new execution against the lands, tenements, hereditaments, good? aud chattels of such debtor, except as before excepted, for the satisfaction of their debts respectively, in the same manner and form as they might have done, if the said debtor had never been taken in execution, any act, statute, law or custom to the contrary notwithstanding.”

       The word “ act” is omitted in the original law.

   By the Court.

— The case appears so clear to us, that we do not wish another moment for consideration. The law is settled in England, that a ca. scí. operates as a satisfaction of the debt, as an extinguishment of the lien of the judgment. Wo have no other rule prescribed to us in Pennsylvania, nor can we conceive that there would he any policy or justice in dej>arting from it. Ruston was in actual custody upon Coates’s ca. sa., when the land was sold. He had no lien, no claim, to the proceeds of the sale, at that time ; and we can perceive nothing in the fact or the law of the ease, which has since revived his old right, or given him a new one, to the land itself, or to any part of the purchase-money.

The rule must, therefore, be discharged.

         The arrest of a debtor under a ca. sa. does not satisfy the debt, if he has been discharged from custody as an insolvent debtor, but if he has been released from such imprisonment, by his creditor, the debt is extinguished. Sharpe v. Spackenagle, 3 S. & R. 463; Palethorpe v. Lesher, 2 Rawle 272.


text:
    *DECEMBER TERM, 1800.
    Hepburn’s Lessee v. Levy.

      Shifted warrant.

    A survey on a shifted warrant will not prevail over a subsequent descriptive one, though the warrantee had notice thereof, before his own survey was made; otherwise, of a subsequent indescriptive warrant.

       Tried in iw- circuit court, Lycoming county, on the 24th October 1800, before Shippen, C. J., and Biíackenbipge, J,

   Ejectment, for land in Lycoming county. In tbe charge to the jury, it was ruled—

By the Court.

— In the case of a lost warrant, it may be removed to other land, provided the removal affects no previous right; and if it is actually surveyed upon vacant land, returned into the land-office, and there accepted, it becomes an appropriation. If, however, any warrant issued, appropriating the land, before an actual survey upon the removed warrant, the right of such warrant must bo preferred. Tbe fact to be decided in the present case, therefore, is, whether any warrant, particularly describing the land in question, was delivered by the defendant to the deputy-surveyor, before the survey was made for the plaintiff ? A vague, indescriptive warrant will not be sufficient to affect the plaintiff’s survey: and although fraud is said to vitiate every transaction; yet, the fraud of the deputy-surveyor cannot affect the rights of the defendant.

         See Belt’s Lessee v. Levers, ante. p. 210.


text:
    Lessee of Weitzell et al. v. Fry.

      Parol evidence. — Judicial sale.

    Where land mortgaged to the trustees of the general loan-office, has been sold by the sheriff of the county, under an alleged precept from the state treasurer, issued by virtue of the act of 1st April 1190, and the writ has been lost, parol evidence of it is admissible,
    f he requisition of the act, that advertisements of the sale shall be posted at some public places, is merely directory to the sheriff, and where there has been no actual injury, it will not affect the title of a bond fide purchaser.
    .It a man who forbids a sale, or slanders a title, become himself the purchaser of the land, it is always, prima facie, a mark of unfairness; and inadequacy of price, though not conclusive to avoid a sale, affords an argument of great weight, against a purchaser to whom fraud is imputed.
    Ejectment, for 306 acres of land in Northumberland county. The case was this : On the 13th of September 1114, John Read, being seised in fee, mortgaged the premises mentioned in the declaration, to “ The trustees of the general loan-office of the province of Pennsylvania,” incorporated under *2191 aot of February 111.3. (1 Dall. Laws, 644.) *After -* various successive modifications of this trust,
       the powers and duties of the trustees were transferred to, and vested in the treasurer of the state, by an act of the first of April 1190. 2 Dall. Laws, 792, § 9. The sheriff of the county, in his testimony on the trial, stated, “ that he had received a precept, dated in September 1192, for selling the lands, under Reed’s mortgage, from the office of Mr. Febeiger, the state treasurer ; that the precept, he believed, was signed by Mr. Febeiger, and attested by Mr. Tngersoll, the attorney-general; that he delivered the precept to Mr. Febeiger’s clerk (who, it appeared, had left the country), indorsed, he believed (though he was not positive), with a written return, as it was his practice to make such indorsements ; that he thought he had put up printed advertisements of the time and place of sale ; and that he made the sale on the premises.” It was proved, however, that on a strict search of the loan-office papera, no precept, in the present case, could be found, except one, which had no date, and which was not signed by Mr. Febeiger. And an advertisement of the sale, to be made on the 11th of December 1192, was read from the Sunbury and Northumberland Gazettes, dated the 6th of October preceding. At the sale, Thomas Reese became the purchaser, to whom the sheriff made a deed, on the 22d of February l'?93, for the consideration of 189?. Is. 6d., and on the
      20th of March 1703, Reese conveyed to the lessors of the plaintiff, for the consideration of 160/. But it was alleged by the defendants, and evidence was given tending to show, that Reese had been collusively employed by Richeson, one of the lessors of the plaintiff (the others being totally ignorant of this part of the transaction), to make the purchase for him, while, at the time of the sale, he set up a title to the premises, producing a deed from the county commissioners, dated the 25th of November 1792, when the land had been sold for taxes ; menacing any purchaser with a law-suit; and in fact, prevented several persons from bidding, who had attended for that purpose ; and some of whom avowed, that they would give 350/. for only 200 acres of the land.
    On these facts, the defendant contended :
    1st. That the authority of the state treasurer was a special authority, and ought to be strictly pursued : whereas, there was no official precept, as required by the act, to justify the sheriff’s sale ; nor any proof of advertisements put up at public places. 2d. That the fraud committed by Richeson, at the time of sale, vitiated the whole proceedings ; particularly, when connected with the inadequacy *of the price. Cowp. 26; Hale Hist. Com. Law, 49; Cowp. 434; 2 Pow. Cont. 144, 163; 1 Bro. Chan. 163.

      The plaintiffs answered,
    that the weight of the evidence was in favor of the regular advertisement of the sale ; that the blank precept, now produced, could not have been the precept under which the sheriff acted, as he swears that his precept was signed by the treasurer, and attested by the attorney-general ; that the loss of the precept being evident, its existence and regularity are legally proved by the sheriff ; that it might, perhaps, be contended, that the production of a written precept was not indispensable in this case (1 Ld. Raym. 166; 5 Mod. 387; 2 Salk. 467); that Richeson was bound tc give notice of the commissioners’ deed, whatever effect it produced on the sale ; that this was the only ground to impeach the sale; and that fraud ought not to be presumed.

       See the note subjoinca to the act above cited. 1 Dall. Laws, 644.

         By an act of the 11th of April 1193, a grant was made to the Pennsylvania Hospital, payable out of the money due to the loan-office; and the managers of the hospital were constituted trustees for the purpose of collection. 3 Dall. Laws, 379,

   Shippen, Chief Justice.

— There are two points of inquiry before the court and jury: 1st. Whether the proceedings upon the sale have been regular ? 2d. Was there such an act of fraud, unfairness or contrivance, at the time of the sale, as ought to vitiate the whole transaction ?

1st. It is alleged, on the first point, that there was no precept authorising the sale; and it is proved, that, on search, a regular precept has not been found in the treasurer’s office. We think, that a precept was necessary to support the sale; and that the paper which has been produced, was not a regular precept. But on the other hand, the sheriff swears, that he received a precept, signed by the treasurer; and it is not probable, that he would have sold an estate under a blank form. As therefore, the party has not the custody of the precept, and ought not to be made responsible for its loss ; the jury will consider, whether there is not sufficient evidence, to presume the existence of a regular precept, at the time of the sale.

It has also been urged, that there is no proof, that advertisements of the sale were posted up at public places ; but if the sale was a fair one, we regard this, as a very feeble objection. The act of making such advertise» ments,is the duty of the sheriff; it is a matter merely directory ; and unless an actual injury has been sustained by an omission, it would be hard, indeed, that it should affect the title of a bond fide purchaser.

2d. The chief ground of defence, however, is the allegation of fraud at the sale; and if Richeson did then attempt to get the land unfairly, he ought not to be allowed to benefit by his iniquity. It is always a mark, primó, facie, of unfairness, when a man who forbids a sale, or slanders a (itle, becomes himself the purchaser of the land. It is true, that Richeson might he bound to give notice of the commissioners’ deed ; but did he confine himself to giving a fair notice of the claim, without any sinister design, *2211 *or conversation or action, to depreciate the estate, and to secure it -1 for himself at an undervalue ? No, he employed another person, secretly, to bid for him, while he deceitfully threatened his own bidder, and seriously threatened every other bidder, with a law-suit. And wherever there is an appearance of fraud, the inadequacy of price, though not conclusive, in itself, to avoid a sale, affords an argument of great weight against a purchaser to whom the fraud is imputed.

Here, then, it is important, to remark, that from the special nature of the proceeding under the treasurer’s precept, the defendant had no opportunity of applying to any court for immediate relief : hut we do not hesitate to declare, that if a case were brought before us, under such circumstances, we should certainly set aside the sale.

It now, however, becomes the province of the jury to decide upon the evidence, whether Richoson’s conduct was fair and proper ; without a sinister view to get the land at an under price. If they think it was, the verdict will be in his favor. If they think otherwise, the defendant must prevail.

Verdict for the defendant.

      «) Where there is a more error of judgment, by public commissioners, in the construction of an act of assembly, without fraud, or a pretence for imputing fraud ; a sale by them, under the act, will not be vitiated, as against a bond fide purchaser, for a valuable consideration, without notice of any irregularity or omission on the part of the commissioners. King v. Stow, 6 Johns. Ch. 323.

       Tried in the circuit court, Northumberland county, on the 17th of October 1800, before Shippen, C. J., and Brackenridge, J.

       s. p. Carson’s Sale, 6 Watts 140; Swire v. Brotherline, 41 Penn. St. 135; Lewis’ Petition, 1 Pitts. 537; Tripp v. Silkman, 29 Leg. Int. 29; Erb’s Estate, 2 Pears. 160.


author: The Court,

text:
    McLaughlin’s Lessee v. Dawson.

      Settlement.

    To constitute a legal settlement, there must be a personal residence, unless such danger exists, as would affect a man of reasonable firmness.
    Ejectment, for 400 acres of land, lying north-west of the river Ohio. Both parties claimed under settlement-rights. The defendant’s improvement commenced one day earlier than the plaintiff’s ; hut the plaintiff had the first warrant; and ho had been constantly resident on the land, except when he left it, through imminent danger from the Indians. The defendant’s improvements were greater than those of the plaintiff (for he was a richer man), but he was often absent from the premises, sometimes as a volunteer in the public service, and sometimes living at a distance with his father or brothers.

      Woods, for the plaintiff. Ross, for the defendant.

        ) Tried at Pittsburgh nisi prius, October 1800, before Yeates and Smith, Justices, s. c. 3 Yeates 61, 2 Sm. Laws 209, where the case is better reported.

   The Court,

in the charge to the jury, strongly preferred the claim of the plaintiff, on account of his constant residence on the premises ; except when obliged to retire, from a reasonable apprehension of danger. They mentioned the case of Ewalt's Lessee v. Highlands (ante, p. 162), and said, that the matures! reflection satisfied them of the propriety and correctness of the principle there laid down: to wit, that to constitute a legal settlement, it must be accompanied with personal residence, unless *such danger exists, as would operate on the mind of a man of reasonable *- firmness.

Verdict, accordingly, for the plaintiff.

       See Ewalt’s Lessee v. Highlands, ante, p. 162; Commonwealth v. Coxe, ante, p. 170; Morris’s Lessee v. Neighman, ante, p. 209, and the notes to these cases; Attorney General v. The Grantees, &c., post, p. 237.


text:
    Pollock v. Hall.  Same v. Same.

      Discontinuance.

    After a case has been referred, and several meetings have been held by the referees, at which the parties have exhibited their respective proofs, and have been heard, the plaintiff cannot discontinue the suit, without the leave of the court; which, in such a case, would not be granted, unless there were very cogent reasons.

    These causes were referred, on the 22d of January 1800, by agreement of the parties, and several meetings were held by the referees, at which the parties exhibited their respective proofs, and were heard by themselves or their agents. The plaintiff conceiving, however, that he had more evidence, which might be produced at a future period, or conjecturing that the referees were unfavorable to his claims, ordered the actions to be discontinued, on the 21st of April 1800, and gave notice of the discontinuance to the defendant. But the referees proceeded to decide upon the matters referred ; and on the 10th of May 1800, filed a report, finding for the defendant the sum of $2300. To this report, exceptions were exhibited, alleging, among other objections to a confirmation, that the actions were discontinued. It became, therefore, a leading question, whether, under the circumstances stated, the plaintiff had a right to discontinue ?

      Dallas argued in the affirmative :
    1st. That a plaintiff has a right to discontinue his action, at any time before the merits are judicially decided. It is true, that the English authorities say, it must be done by leave of the court; but before or after declaration filed ; after demurrer joined and entered; after verdict on a writ of inquiry ; and even after a special verdict ; the leave of the court is granted, as matter of course. (Sherid. Pr. 534-5; Barn. 170; 6 T. R. 616; Cro. Jac. 35; 1 Salk. 178; Gilb. 272; 7 T. R. 6; Barn. 169; Carth. 87.) 2d. That the case of a trial by jury, and the case of a reference, do not, in this respect, differ. The act of assembly places a report of referees on the same footing as a verdict; and does not affect, in any manner, the power of the plaintiff over his suit. 3d. That the practice of Pennsylvania, both on general principles, and under the statute, has been uniform in favor of the plaintiff’s right. A discontinuance, indeed, no more requires the act of the court, than a non-pros., when the plaintiff prevents a verdict, though he could not prevent a trial. The records of the court will establish the right of discontinuance, before and after issue joined, by the mere act of the plaintiff : Lloyd's Lessee v. Taylor, *2231 2 Dall. 223; *Plym's Lessee v. Skillenbergen, Sept. T. 1765; Chew v. Jones, Sept. T. 1767; Kerston v. Yeager, Sept. T. 1766; Neave v. Forbes, Sept. T. 1771. So, after reference. Davis v. Porteer, Sept. T. 1798; Foulk's Lessee v. Rennicks, Sept. T. 1767. So, after judgment, plaintiff may open the judgment, and discontinue. Pringle v. Vaughan, Dec. T. 1797. So, after special verdict. Leech's Lessee v. Armitage, 2 Dall. 125.  So, even after a report of referees actually filed. Sterret v. Chambers et al., Sept. T. 1757.

      W. Tilghman and Morgan argued,
    against the right to discontinue. 1st. That, on general principle, there could be no discontinuance, without leave of the court, which would only be granted, on payment of costs. 2d. That after a jury was sworn, the plaintiff could not discontinue, though he might suffer a non-pros., which had consequences differing from those of a discontinuance. 3d. That the statute reference was of a peculiar character ; which implied the agreement of the parties to receive the report of the referees ; and which, by the operation of a set-off, frequently converted the defendant into the real plaintiff, with the remedy of a scire facias. In the course of the argument they cited Styles 198, 199; Cas. temp. Hardw. 200; Gilb. C. P. 219; Cromp. Pr. 119; Garth. 87; 2 W. Bl. 815; 1 Dall. 430, 143, 355, 514.

         s. c. 3 Yeates 42.

       And see Schuylkill Bank v. Macalester, 6 W. & S. 147; Evans v. Clover, 1 Grant 164; Lacroix v. Marquart, 1 Miles 156; Horn v. Roberts, 1 Ash. 45.

        а) The special verdict was found, on the 21st of April 1775; and on the 22d of April, “the plaintiff, by Mr. Reed, his counsel, discontinues the action.”

       The following is the docket-entry in this case:
      Sept. 1757.
      Ross. James Sterret v. James Chambers, Nathaniel Smith, and Elizabeth his Chew, wife, Randle Chambers, Dick. William Chambers, Jean Gal. Chambers, Mary Cham, bers, John Chambers and Margaret Chambers; At a court of nisi prim, held at Carlisle, the 18th day of May 1768. By order of court and consent of parties, the matters in variance between them are referred to the final determination of James Galbraith, John Byers, James Maxwell, Jonathan Iiogge and John Montgomery, or any three of them, who are to make report to the supreme court, in next September. Rule, that the referees proceed ex parte, on twelve days’ notice.
      21st September 1768: Report of referees returned into the office, finding that the plaintiff hath no cause of action against the defendants.
      24th September 1768: Before the sitting of the court, plaintiff came into the office, and discontinued his action.

   By the Court.

— The ease of Sterret v. Chambers et al. induced us to pause, before we decided the point now submitted to our consideration. It does not appear, however, that the right to discontinue was at all contested in that case ; and the other cases, cited from our records, do not import any judicial decision, that would be binding upon us, as authority, on the present occasion.

In this situation, we think we are at liberty to deny the right for which the plaintiff contends ; and that the policy of the legislature, *as well r*224 as the principles of justice, will sanction the denial. The act of as- *- sembly sought to compose strifes, to shorten litigation, by assigning an amicable tribunal, to which the parties might voluntarily resort: and when both have agreed to resort to that tribunal, it would be inconsistent with the general nature of an agreement, to permit one of them alone to withdraw from its jurisdiction. Feuds would be inflamed, instead of being allayed ; and suits multiplied, instead of being diminished, by such a construction of the law. There may be cases, however, in which a plaintiff, alleging surprise or mistake, would be allowed by the court to discontinue his suit: but after an agreement to refer, a disclosure and hearing before the referees, and an opinion expressed or intimated by them, upon the merits, a discontinuance cannot be regarded as a matter of right, and would only be permitted upon very cogent reasons, such, perhaps, as would invalidate the report itself. In the present case, we are of opinion, that the plaintiff had not a right to discontinue the suits; and that no sufficient reason appears, for allowing a discontinuance upon the authority of the court.

On the discussion of other exceptions to the report (one of which was, that a single report was made, though two suits were referred), it was agreed to consolidate the actions, and to refer the disputed points again to the same referees.

         Though the plaintiff’s right to discontinue is, generally, a matter of course, it is subject to' restrictions. An action cannot he discontinued, after the jurisdiction of arbitrators has attached; which is considered as attaching from the moment of their appointment, and the cause is then out of court. Horn v. Roberts, 1 Ash. 45, So, a plaintiff will not be permitted to discontinue, where it will give him an undne advantage, or tend to vex and oppress the defendant. Mechanics’ Bank v. Fisher, 1 Rawle 341. In replevin, where the goods have been delivered to the plaintiff, the court will not give him leave to discontinue; and there may be cases, where the court will refuse such leave, though the possession remains with the defendant, on his claim of property. Broom v. Fox, 2 Yeates 530. A party cannot discontinue his suit, after a bond fide assignment of the debt, to a third person, for a valuable consideration. McCullum v. Coxe, 1 Dall. 139. Under a plea of payment, proof of the discontinuance of a suit cannot be given in evidence; the defendant, by appearing and making defence, waves the objection. Latapee v. Pecholier, 2 W. C. C. 180.


text:
    Mather v. Pratt et al.

      Assignment for the benefit of creditors.

    Where there is an assignment for the benefit of such creditors of the assignors, as shall, -within a certain period, execute a general release to them, a creditor who has not executed the release, cannot maintain an action against the assignees.

    This was an action brought by the plaintiff, as indorsee and holder of several promissory notes, made by Dorey & Bayhir, in favor of Joseph Mussi, against the defendants, to whom Dorey & Bayhir had assigned all their estate, in trust for the payment, pro rata, of such of their creditors, as should, within a certain period, execute a general release ; and the dividend of the non-assenting creditors was to be paid to them. The plaintiff had not executed the release ; and it was objected, that he could not sue the trustees, even for a dividend, in his own name, without performing the condition precedent.

      M. Levy, for the plaintiff. Dallas, for the defendant.

         Where a voluntary assignment has been made for the benefit of such of the creditors of the assignor, as shall, within a specified time, execute a release of their debts, a creditor must release within the time specified, or he will not be entitled to a dividend, though he should execute a release, before any dividend has been declared. Cheever v. Imlay, 7 S. & R. 510. It is not sufficient, that an offer to release has been made, within the specified time, nor will the acceptance of the trust by an assignee, who is a creditor, entitle him to the benefit of it, if he has failed to execute the release within the time. Pearpoint v. Graham, 4 W. C. C. 232. But a release, executed after the specified time, will discharge the debt, where there is neither fraud nor mistake. Coe v. Hutton, 1 S. & R. 398.

   The Court were unanimously, and clearly, of this opinion; and the plaintiff suffered a nonsuit.

       After this nonsuit, the plaintiff issued a foreign attachment against Dorey & Bayhir, and attached the dividend in the hands of the defendants, which was, eventually, recovered.


text:
    *MARCH TERM, 1801.
    Commonwealth v. Addison.

      information.

    If the presiding judge of a court of common pleas, wilfully prevent an associate from delivering his sentiments to the grand jury, after the president has concluded his charge; it is not an indictable offence, and therefore, not a case in which an information will be granted; but every judge has a right, and it is emphatically his duty, to deliver his sentiments, upon every subject that occurs in court.
    The Attorney-General made a motion, for a rule to show cause why an information should not be granted against the defendant, the president of the courts of common pleas, in the fifth circuit ; on the affidavit of J. C. Lucas, an associate judge of the court of common pleas of Allegheny county, stating that he had been wilfully prevented by Mr. Addison, from deliver-big his sentiments to the grand jury, after Mr. Addison, as President, had. concluded his charge, &e.
    In support of the motion, the attorney-general cited 1 Reeves Hist. Eng. Law, 201, c. 4; 2 Ibid. 2; Jacob’s L. Dict. tit. “ Chapitre;” 4 Bl. Com. 303; Const. Penn. art. V. § 4; 6 Mod. 96. But—
   By the Court.

— We are unanimously of opinion, that the case does not present to our consideration an indictable offence; and, of course, it is not a case, in which an information ought to be granted. But we are (with the same unanimity) of opinion, that every judge has a right, and, emphatically, that it is his duty, to deliver his sentiments upon every subject that occurs in court. We add, so far as the expression of our sense of decorum may have weight, that we think, it would be indecent and improper, in any presiding judge, to attempt to prevent his associates from the exercise of this right; from the performance of this duty.

Motion refused.

       Judge Addison was subsequently impeached for the cause assigned, and having been convicted, was sentenced to removal from office, and . disqualification from thereafter holding the office of judge, within the state. See Addison's Trial, 154. And see Porter’3 Trial, 61.


author: Shipper, Chief Justice.

text:
    * Wainwright et al. v. Crawford.

      Master of vessel.

    The master of a vessel may bind his owners, personally, by borrowing money to make necessary repairs to the vessel, in a foreign port, if the lenders, after due inquiry, did not know that the master had sufficient funds to relieve the necessity.
    This was an action on the ease, brought by foreign merchants, against the defendant, to recover the amount of money lent to the master, to pay for disbursements in repairing and supplying his ship in a foreign port. It was proved, by the evidence of the master, that he had no funds belonging to his owner, or to himself; and that he borrowed the money from the plaintiffs, to make the necessary repairs of the ship, for the prosecution of her voyage.

      Moylan, for the defendant,
    observed, that the power of the master of a ship, extended no further, than to authorize him to hypothecate the ship herself, in a foreign port, for absolute necessaries : but he contended, that the master could not, under any circumstances, personally bind the owners. Moll. c. 1, 6, 2, § 10, § 14; Beawes’ L. M. 95-6; 1 T. R. 18; 2 Dall. 195; 1 Salk. 35; 2 Ld. Raym. 984.

      Ingersoll and Franklin, for the plaintiffs,
    insisted, that every person who supplied a ship, had a triple security ; to wit, the master, the owner and the ship ; that, by the maritime law, the master was the authorized agent of the owners, in foreign ports ; and that, independent of his power to bind the ship herself, he might bind the owners personally, upon proof that the money or supplies went to their use. Cowp. 636; 1 Ves. 443; 1 T. R. 73; 2 Vern. 643; 14 Vin. Abr. 300, pl. 9.

         s. c. 3 Yeates 131, which is a better report.

   Shipper, Chief Justice.

— If the jury are satisfied (and the evidence is strong upon the point) that there was an actual necessity for borrowing the money, to repair the ship, the plaintiffs ought to recover. The lender i? bound, it is true, to make due inquiry, whether the repairs a,re necessary ; and whether the master has effects in his hands, sufficient to defray the expense of repairing, without resorting to a loan : but he is not bound to know, nor to inquire, what is the state of the accounts between the owner and the master. If, therefore, the case of necessity existed; and the plaintiffs did not know (for we fix on their knowledge as the test) that the master had sufficient funds in possession, to relieve the necessity; we think that the contract of the master will bind his owners, personally.

Yerdict, accordingly, for the defendant.

       The owner of a vessel cannot be made personally liable, by the contracts of the master, in a foreign port, when he has not authority to hypothecate the vessel; and he cannot hypothecate the vessel, while there are goods of his own, or of the owner, on board. Cuspino v. Perez, 2 Dall. 194


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    *SEPTEMBER TERM, 1801.
    Austyn v. McLure.

      Consideration.

    The smallest spark of benefit or accommodation is sufficient, to create a valid consideration for a promise.

    Case, on a special assumpsit. The declaration contained three counts, of each of which, the following is the substance.
    1st Count. — After stating that a controversy subsisted between the plaintiff and one Rowson (a British merchant, for whom the defendant was agent); that they had agreed to enter an amicable action and reference, in the federal circuit court, and that the referees met on the 12th of January 1798 ; the declaration proceeded, that at the said meeting, “ it was agreed between McLure and Austyn, that in consideration that the said Austyn would waive all objections to the referees proceeding to arbitrate between the said Rowsod and Austyn, and would submit the matters in controversy between them to the said referees; as' also in consideration of the said Austyn’s having promised, on demand thereof made, to give security to pay to the said McLure whatever sum the said referees might award to be paid to the said Rowson, should the said referees decide the said controversy and dispute against the said Austyn, he the said McLure undertook, &e., that he would well and truly pay the said Austyn whatever sum of money the said referees might award to be due from the said Rowson to the said Austyn.” And the declaration then averred, “ that Austyn did waive all objections, &c., and always was ready to give to the said McLure the said security above mentioned, when he should be required by the said McLure. And that the referees awarded a balance of $1454.06 to be due from Rowson to Austyn, &c.”
    2d Count. — After stating the agreement to arbitrate between Rowson and Austyn, the declaration proceeded, that “ in consideration that the said Austyn had, at the request of the said *McLure, promised and under- r*228 took, when he should be thereunto required by the said McLure, to *- procure good and sufficient security for the performance of the award which should be given by the said arbitrators, and for the payment of the sum which might be awarded against the said Austyn, the said McLure did, on his part, undertake, &c., to the said Austyn, to perform the said award on the part of the said Rowson, if it should be given against the said Rowson, by the said arbitrators, and to pay to the said Austyn, when thereto lawfully required, whatever sum of money might be awarded to be due from the said Rowson to the said Austyn, &c.” The declaration then made an averment of the award as before; and “ that the said Austyn was always ready and prepared well, &c., to perform his said promise and undertaking, and to give good and sufficient security, when he should be thereto required by the said McLure, &c.”
    3d Count. — After stating the same agreement to arbitrate, the declaration proceeded, “that in consideration that the said Austyn would not object to the said referees proceeding to hear and determine the disputes and controversies aforesaid, without delay, and in consideration that the said referees would so proceed, without delay, the said McLure promised, &e., that he would perform the award of the referees, &c.” The declaration then averred, “ that Austyn did not object, &c., that the arbitrators proceeded, without delay, &c., and made their award, &c.”
    On the evidence, it appeared, that after the referees had met, more than once, Austyn (whose circumstances were considerably embarrassed) observed, “that ho wished to understand, in what situation he would be placed, if the award should be against Rowson; for if it went against him, he was present to answer the demand ; or, should he be thought insufficient, he was ready to produce satisfactory security to answer it.” McLure replied, “that he was Rowson’s agent, and stood in Rowson’s place or stead.” The referees understood, that Austyn’s offer of security was meant, “if it should be required by McLure,” who did not ask it, though he never waived it : and that McLure’s declaration was meant, “ that he would himself be answerable, in case the award was against Rowson.” The referees proceeded to hear and decide upon the case; and nothing further passed between the parties on the subject of security. Austyn, however, it appeared, had applied to Mr. Gallaudetto be his surety, at some time in 1797 or 1798 (the witness could not recollect when, nor what passed upon the occasion), and Mr. Gallaudet, having then funds of Austyn’s in his hands, said, “ that he would have become the surety, if it had been then further requested.”
    On these facts, the plaintiff’s counsel (Ingersoll, Hallowed and Todd) contended,
    that the special assumption of the defendant *was proved; r*22g L and that there was a good legal and equitable consideration to sustain it. In the course of the argument, they cited the following authorities. Cro. Eliz. 543, 703; 1 Com. Dig. 199; 5 Mod. 411, 412; Cro. Eliz. 67, 70; 3 Burr. 1666; 1 Com. Dig. 200; 1 Bac. Abr. 267; Com. Rep. 99; 12 Mod. 457; 1 Pow. Cont. 344.
    The defendant’s counsel (Dallas) contended,
    that whatever might be the impressions or inferences of the referees, the declaration of McLure did not, in itself, amount to an express assumpsit/ that it was not a case, in which an implied assumpsit could be raised ; that, at most, it was a mere gratuitous undertaking, without any possible consideration, beneficial to McLure ; a nudum pactum, on which no action could be maintained; and that the consideration was not proved by the evidence, as it was laid in the declaration. 2 Bl. Com. 445; 3 Ibid. 159; Bull. N. P. 147; Bulstr. 120; Dyer 272; 2 Burr. 1666; Cro. Eliz. 79; 2 Burr. 1671.

       s. p. Greeves v. McAllister, 2 Binn. 591; Hassinger v. Solms, 5 S. & R. 4; Bull v. Allen, 11 Id. 52; Hind v. Holdship, 2 Watts 104; Smith v. Plummer, 5 Whart. 89; Mercer v. Lancaster, 5 Penn. St. 160; Cunningham v. Garvin, 10 Id. 366; Harlan v. Harlan, 20 Id 303; Muirheai v. Kirkpatrick, 21 Id. 237.

   The Court delivered a charge to the jury, in which they stated, that the smallest spark of benefit or accommodation, was sufficient to create a valid consideration for a promise ; and intimated, that their opinion was decidedly in favor of the plaintiff.

Verdict, accordingly, for the plaintiff.

         Bbackenbidge, Justice, seemed to dissent from the opinion of the court, with this remark: “ The English books say, that there must be a spark of consideration (though a single spark is enough) to maintain an action upon a promise: but in this case, the court have blown out the spark; and I cannot perceive, whence they get light sufficient tc enable them to decide for the plaintiff.”


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    Commonwealth v. Dallas, Attorney of the United States, &c.

      Recorder of Philadelphia.

    The Recorder of the city of Philadelphia is not a judge, within the meaning of the 8th section of the 2d article of the constitution of the state of Pennsylvania.
    Quo Warranto. The President having honored the defendant with an appointment, as attorney of the United States for the eastern district of Pennsylvania ; and the Governor having been pleased also to appoint him Recorder of the city of Philadelphia; it was thought, by some of the members of the select and common councils, that the tenure of these offices, by by the same person, at the same time, was constitutionally incompatible. And in order to try the question, Mr. HopTcinson, the solicitor of the corporation, was instructed to move the supreme court, for leave to file an information (on the relation of the select and common councils), in nature of a writ of quo warranto, to inquire by what authority the defendant exer*2301 c^se<^ ^® office of recorder. *It was agreed, that the merits of the J case should be discussed and decided upon this preliminary motion, in order to avoid any public inconvenience ; as the defendant declared his determination not to act as recorder, while a doubt rested upon his right.
    The case turned principally on the construction of the 8th section of the 2d article of the constitution of Pennsylvania ; which is expressed in these words : “No member of congress from this state, nor any person holding or exercising any office of trust or profit under the United States, shall, at the same time, hold or exercise the office of judge, secretary, treasurer, prothonotary, register of wills, recorder of deeds, sheriff, or any office in this state, to which a salary is by law annexed, or any other office which future legislatures shall declare incompatible with offices or appointments under the United States.”
    The argument was conducted, with great and equal ability and candor, by Messrs. Hopkinson, E. Tilghman and Lewis, in support of the motion ; and by Messrs. Ingersoll and McKean, against it.
    In support of the motion, it was stated, as a foundation, that the Recorder of the city of Philadelphia is a judge; and consequently, within the clause of the constitution, which excludes an officer of the United States, from holding or exercising the office of a judge, in this state. It was said, that the policy of the exclusion originated in a jealousy, lest the federal government should overshadow the state governments; and if there was a doubt upon the subject, that policy required a decision, affirming the incompatibility of the offices in question. The commission, duties and powers of the recorder were then analyzed, with a view to prove that his office was a judicial character ; particularly, when he acted as the organ of the mayor’s court; and that it was not the name (as a recorder, a justice, &e.), but the duty, which constituted a judge. 2 Dall. Laws, 658, § 14; Ibid. 660, § 19, 20; Ibid. 662, § 22; Const. Penn., Art. V., § 1; 4 Dall. Laws, 75. Nor, it was insisted, did he merely perform his judicial functions as a ministerial agent of the corporation ; but he was, in fact and in law, a judge, within the meaning of the constitution, and the interpretation of the most authoritative writers. Cun. Law Dict. “Judge Johnson’s Dict. “Real;” Jac. L. Dict. “Judge;” 1 Bl. Com. 269; 4 Ibid. 84, 125; 1 Bac. Abr.; 3 Bl. Com., in App. 3, 38-40; 4 Inst. 73, 23; 6 Co. 20; 9 Ibid. 118; 1 Hale H. P. C. 231; Cro. Car. 146; 1 Bl. Com. 269; 12 Wm. III.; 1 Geo. III.; 1 Tidd 426; Min. of Conv. 81, 85, 138, 139, 194, 198.
    In opposition to the motion, it was premised, that further than the constitution has prescribed, a spirit of jealousy, between the federal and state governments, ought not tobe encouraged: and *the argument was pursued upon the following general propositions : 1st. That the 8th *- section of the 2d article of the constitution, does not include in its prohibition, any other than the state officers. 2d. That the Recorder of the city of Philadelphia is not an officer of the commonwealth or state ; but an officer of the corporation.. 3d. That the recorder, according to the letter, the spirit and the meaning of the constitution, is not a judge. The following books were cited on these several propositions; Min. Coun. Cens. 139, 140, 141, 142; 2 Dall. Laws, 546, 334, 565, 634, 636, 658; Const. Penn. 1776, ch. 2, § 9; 2 Dall. Laws, 654, § 1, § 14; 4 Bl. Com. 84-5, 126; Cro. Car. 373; 1 Hale P. C. 58, 440; Ibid. 231; 9 Co. 118 b; 2 T. R. 87; Cro. Car. 138; Sir William Jones, 193; Cro. Eliz. 76; 3 Burr. 1615, 1616; 1 Sid. 305; Doug. 382; 2 T. R. 88; Priv. Lond. 16, 23, 25, 63, 64; 1 Kyd 426; 2 Ibid. 80, 82, 83; 1 Bl. Com. 76; 3 Ibid. 334, 60; 6 Co. 20; Cro. Car. 146; 9. Co. 1186; Str. 1103; 1 Burr. 542; 12 & 13 Wm. III., c. 2, § 3; 1 Geo. III, c. 23; Min. Conv. 39, 63, 78, 82, 126, 138.
    The argument was, unavoidably, protracted until late in the last day of the term ; and the judges, declaring that the question was of too much importance to be decided without deliberation, directed a curia advisare vult until the next term; when the unanimous opinion of the court, was delivered by—

       s. c. 3 Teates 300.

       The court .declared, that upon a proceeding of this kind, it was necessary to name the relator, at whose instance it was instituted.

   Shippen, Chief Justice.

— That although the Recorder of the city of Philadelphia possesses some powers, and performs some duties, of a judicial nature, he is not a judge, within the terms, spirit and meaning of the 8th section of the 2d article of the constitution.

The motion for leave to file an information in the nature of a quo warranto, was, therefore, refused.


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    *MARCH TERM, 1802.
    Falconer v. Montgomery et al.

      Avxwd.

    Where, on a reference to two persons, with power to choose an umpire, if they should disagree, an umpire is appointed, who receives the statement of the case from the referees, in the absence of the parties, and without hearing them, the award will be set aside.

    This was a replevin for fifteen hogsheads of rum ; and the matters in dispute were referred to James Currie and David Winchester, with power to choose an umpire, if they disagreed. The two referees met, by consent of parties, in Baltimore ; and both sides were fully heard ; the evidence being all in writing, and no part of it rejected. It appeared, however, that the plaintiff objected to the consideration and decision of any other matter than the claim to the rum, for which the replevin was brought; while the defendants insisted upon an investigation of all the commercial transactions between the partios. The referees divided in opinion upon these propositions ; and appointing Joseph Williams, as an umpire, they stated to him (in the absence of the parties) the facts, as they had previously appeared to them. The umpire then examined the accounts produced to him (the parties being still absent), concurred in opinion with the referee, who thought that the reference was confined to the dispute about the rum ; and signed, with him, a report, in favor of the plaintiff, for $1837.45 ; but the other referee, persevering in his opinion of the general nature of the subject submitted, declined joining in the report.
    Exceptions were filed by the defendants; but the only one pressed in argument, upon the court, was, “ that the umpire had not himself heard, from the parties themselves, their respective allegations and arguments on the merits of the controversy.”
    For the defendants,

    it was urged, that an umpire, being a judge, ought to hear for himself, and not through another, the evidence and the reason-*2331 *nS’ on which he is to decide; that it is also the right of every suitor, -* to be heard himself, originally, *and not to have his cause depend upon a second-hand report of his proofs and arguments; and that, in the presen-j instance, the umpire might have been induced to view the facts and principles of the case, in a different point of light, if they had been presented by the parties, who were alone interested to give them all their force. (1 Dall. 293.)
    M. Levy and Franklin, for the plaintiff. Ingersoll, Moylan and Hopkinson, for the defendants.
    For the plaintiff,

    it was observed, that however widely the parties differed on facts and principles, the referees knew no diversity of sentiment, but upon the single question, how far the rule of reference extended. Their general statements, therefore, to the umpire, were in unison ; and he examined for himself, all the accounts, which the parties had exhibited. It has been decided, in Hall v. Lawrence, 4 T. R. 589, that the award of an umpire will not be set aside, because he received the evidence from the arbitrators, without examining the witnesses himself, unless such a reexamination was expressly requested.

       Passmore v. Pettit, post, p. 271.

   By the Court.

— The case of Hall v. Lawrence was decided in 1792. It is not, therefore, binding upon us, as an authority ; and upon principle, we cannot accede to the decision. The plainest dictates of natural justice must prescribe to every tribunal, the law, that “no man shall be condemned unheard.” It is not merely an abstract rule, or positive right; but it is the result of long experience, and of a wise attention to the feelings and dispositions of human nature. An artless narrative of facts, a natural and ardent course of reasoning, by the party himself, will sometimes have a wonderful effect upon a sound and generous mind ; an effect which the cold and minute details of a reporter, can neither produce nor supplant. Besides there is scarcely a piece of written evidence, or a sentence of oral testimony, that is not susceptible of some explanation, or exposed to some contradiction: there is scarcely an argument that may not be elucidated, so as to insure success ; or controverted, so as to prevent it. To exclude the party, therefore, from the opportunity of interposing, in any of these modes (which the most candid and the most intelligent, but a disinterested, person, may easily overlook), is not only a privation of his right, but an act of injustice to the umpire, whose mind might be materially influenced by such an interposition.

Under these impressions, and upon the single ground to which they relate, we are, unanimously, of opinion, that the report of the referees must be set aside.

Report set aside.


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    *Levy v. Bank of the United States.

      Bañiles. — Consideratimi.
    Where a forged cheek of a customer is received by a bank, as cash, and passed to the credit of a depositor (who is ignorant of the forgery, and who has paid the fall value of the check), it is equivalent to an actual payment, and if the deposito!1, after having been informed of the forgery, on a sudden misconception of his rights, agrees, that if the check is a forgery, h is no deposit; it will not constitute a promise to refund.
    This was an aetion brought upon the following circumstances, which appeared in evidence upon the trial of the cause.
    The plaintiff, Mr. Levy, kept his cash account with the Bank of the United States. On the 3d of August 1798, between 11 and 12 o’clock in the forenoon, his student presented for payment a check on the bank, dated the -31st of July 1798, purporting to be drawn by Charles Wharton, in favor of Joseph Thomas (to whom Mr. Levy had paid the money), or bearer, for $2600 : and the amount was regularly and promptly entered to Mr. Levy’s credit, in his cash-book, in the usual form, as of a deposit of cash. At the examination of the checks, in the afternoon of the same day, the cheek in question was discovered to be a forgery; the entry was cancelled in the bank-books ; and one of the clerks was sent to Mr. Levy, about 4 o’clock, to inform him of it, to return the forged check, and to demand his check in lieu of it. This clerk, at first, told Mr. Levy, that the check was not good, because Mr. Wharton had not the money in bank ; to which Mr. Levy replied, “ that is nothing to me.” The clerk then told him, that the check was forged ; on which Mr. Levy, with great surprise, said, “that he would take until tomorrow, to consider of the propriety of giving his own check in exchange for it.” The clerk urged an immediate exchange of checks, declaring, “ that although he was not authorized by the cashier to give such notice, he was confident the amount of the forged check would be retained by the bank, in their account with Mr. Levy.” The clerk deposed, that Mr. Levy thereupon answered : “ On that score, we are perfectly agreed ; if the check is a forgery, it is no deposit; but I wish some time, to ascertain the fact.” On the 4th of August, however, Mr. Levy informed the president of the bank, that he would not refund the money, nor allow the entry to his credit, to be erased from his bank-book. He then drew a check on the bank, for the balance of his account, which was paid, except to the amount of the forged check ; and to recover that amount, the present action was instituted.
    It also appeared in evidence, that Thomas’s forgeries were suspected by individuals, so early as the 31st of July, but the fact was not generally known until the 3d of August 1798 ; that between 9 and 10 o’clock of the night of the 3d of August, he executed, in Philadelphia, an assignment of his property, in trust for the benefit of his creditors ; and that an hour or two afterwards, he absconded from the city.
    The cause, upon these facts, underwent three several arguments : 1st, on the trial before the jury ; 2d, on a motion for a new trial; and 3d, on a *2351 W1’^ error, in the high court of errors and appeals : but in every J stage, the decision was in favor of the plaintiff; and the points of argument, and the authorities cited, were the same, throughout the discussion.
    For the plaintiff,

    it was contended : 1st. That the entry in the bankbook was tantamount to a payment in cash of the forged check ; and that it was on the ground of that payment, not of the forgery, the plaintiff claimed. 2d. That the bank, the drawees of the check, had no power to rescind or annul the payment, on account of the subsequent discovery of the foi-gery. 3d. That the plaintiff’s sudden misconception of his legal rights, in his conversation with the clerk of the bank, did not constitute a promise to refund, in law, equity or conscience. And the following authorities were cited, in the course of the argument: 2 Str. 946; 1 H. Bl. 316; 1 Salk. 127; 4 Vin. Abr. 265, pl. 3; 2 Barnard. 82; Bull. N. P. 273; 3 Burr. 1516; 7 T. R. 420; 3 Burr. 1355; 1 W. Bl. 390; 1 T. R. 655; Kyd on Exch. 134, 48, 100; 3 T. R. 127, 129, 132, 325, 335; 4 Ibid. 325, 335; 7 Ibid. 604, 612; Ambl. 503; Doug. 611, 637; 3 Woodes. 115; 7 T. R. 423, 430; 6 Ibid. 139, 143; Cowp. 565; Leach C. L. 189; 5 Burr. 2670; 1 T. R. 713; 2 Bro. Ch. Ca. 150; United States v. Bank.

    For the defendant,

    it was contended : 1st. That the entry to the plaintiff’s credit, in the bank-book, was made by mistake ; was corrected as soon as it was discovered ; and was not, in its nature, nor in mercantile usage, equivalent to a payment in cash. 2d. That although there were some features of similitude between bills and checks, they were not so strictly analogous (for instance, there is no acceptance of a check, and so it is not taken on the acceptor’s credit), that all the principles applicable in the one case, must govern in both cases. 3d. That the acceptor of a bill of exchange is not precluded from showing, that the drawer’s handwriting is forged, in an action brought by the payee. 4th. That the plaintiff’s conversation with the clerk of the bank amounted to a promise to refund ; or, at least, induced the bank to suspend any inquiry for Thomas. 5th. That the plaintiff is not entitled to recover, because he claims through a felony. And the following authorities were cited: 1 Burr. 642; 6 T. R. 189, 143; 1 Ld. Raym. 743; 2 Str. 946; 1 H. Bl. 316; 1 Salk. 127; 2 Str. 1051; 1 Ibid. 648; Kyd 60, 90; 1 T. R. 654-5; 3 Ibid. 127; Cowp. 566; 6 T. R. 139; 2 P. Wms. 76; Ambl. 503; *2 Bro. Ch. 150; 2 T. R. 420, 424; Kyd 202-3; 1 T. R. 167; 1 Str. 508; 2 Ibid. 1175; 1 Ld. Raym. 444. *■

       s. c. 1 Binn. 27, where the case is more fully reported

        United States v. Bank of the United States. This cause was tried in the federal circuit court, on the 17th of October 1800, before Patejrson and Peters, Justices. In the course of the discussion, Ingersoll, for the defendants, admitted and stated, that if a man accepts a forged bill or draft, he is not only conscientiously, but legally bound to pay it. And each of the judges expressly declared their concurrence in the admission.

   The Court delivered a charge to the jury decidedly in favor of the plaintiff ; the Chief Justice declaring, that he thought any attempt to distinguish between a credit in the bank-book of a customer, and an actual cash payment, as impolitic on the part of the bank, as it was unjust towards the individual, who accepted the credit, instead of his money.

The verdict found for the plaintiff the sum demanded and interest: and (after an ineffectual motion for a new trial, as above stated) a judgment was rendered upon the verdict, which was affirmed upon a writ of error.

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