text:
    * APRIL TERM, 1793.
    Bank of North America v. Pettit.

      Notice of non-payment.

    .Votice of non-payment of a promissory note by the maker, must be given by the holder to the indorser, with a demand of payment from him, within a reasonable time.
    What constitutes a notice within a reasonable time, still remains, in Pennsylvania, a fact for the jury to determine.
    Case -against the payee and indorser of a promissory note, made by George Henry, for $1100, payable in 45 days, and dated the 26th of March 1785. The defence was, that due notice had not been given of the maker’s non-payment of the note; and the following evidence was produced pro and con.

    For the plaintiff,

    the runner of the bank stated, that he believed he gave the maker notice when the note became due, as it was his custom to do ; that it was also his custom, at the expiration of the three days’ grace, to give the indorser notice; and ho conceived, he must have called on the defendant on the evening of the last day of grace ; but if not then, he was very clear, he called the next day, or the second succeeding day, at farthest; that he thinks he spoke to the defendant’s son, and supposes he mentioned his business ; that his reason for thinking he gave notice is, that he has a memorandum of Henry’s notes lying over ; and the president of the bank was very particular about them, and the indorsers; that when he called at the defendant’s counting-house, he gave verbal notice, that the indorsement was unpaid, and the person he saw, told him that he would inform the defendant of it; that it was not then a practice to leave written notice ; and finally, that he was not doubtful, but very clear, that he gave the notice.
    For the defendant,

    his clerk declared that it was usual to leave notice of the protest of notes in writing; and that he did not recollect that either written or verbal notice was given in the present case. The defendant’s son declared, that he had no recollection of receiving any notice ; but, on the contrary, he remembered, *that, upon making an estimate of his -* father’s indorsements at the bank, the cashier said they amounted to $2300 ; and this being denied, Henry’s note was produced; which was the first intimation that the son ever had of its existence, or of its being protested.
    It was argued by Tilghman and Lewis, for the plaintiff,
    that although the cause turned upon a mere matter of fact; and that fact being established, the decision must be governed by the ■ principles of the mercantile law, which, generally considered, are the same throughout the mercantile world ; yet, that there are special usages, arising from local circumstances, or municipal policy, that must prevail, in modifying the operation of the general law of merchants. Thus, the general law of merchants declares, that the acceptor of a bill of exchange is bound by his acceptance ; but how far lie is bound, varies at different places. (Burrow v. Jemino, 2 Strange 733.) So, notice of the protest of a bill of exchange must be given, upon the principles of the genera.’ law; but there is a different usage, in different places, as to the strictness of the time, within which the notice must be given. The statute of Anne introduced the negotiable character of promissory notes, and the process of declaring upon them as instruments. The practice of giving notice, in the case of promissory notes, soon followed in England, though the statute speaks nothing of the time ; but, at first, a great latitude was allowed ; and it is only, step by step, that the present degree of strictness on the subject has been there established. In Pennsylvania, however, promissory notes were scarcely to be regarded as a currency, before the revolution; insomuch that it is difficult to trace a suit on the records of the courts, by the indorsee against the indorser. The act of assembly of 1715, which gave the indorsee an action against the maker, in his own name, made no positive provision on the subject of notice ; and the English practice was not adopted under the act. Punctuality, indeed, in paying such engagements, was rare, and almost impracticable, from the state of the country. The Bank of North America began the rule of punctuality ; and originated the usage of notice ; and upon that usage, a period of six, seven or eight days has been allowed for giving the notice. What, then, is the. evidence of a demand of payment from the indorser, in a reasonable time, is the only question. The runner of the bank gave notice of the protest; and this, by the common understanding of our merchants, amounts to information, that the holder of the note looks to the indorser for satisfaction. The cases cited for the plaintiff were 2 Str. 1175, 1248; Ld. Raym. 744; Robertson v. Vogle, 1 Dall. 252; Bank v. McKnight, Ibid. 158.
    It was argued by Ingersoll and Sergeant, for the defendant,
    that the holder of a dishonored note, must conform to the law-merchant, *which [*129 requires notice to be given to the indorser; as even the declaration shows, by the averment that notice was given : and they contended, that the notice in this case (if given at all) not being given to the defendant on the very next day, after the expiration of the days of grace ; and not being accompanied with an explicit demand for payment, was not a sufficient notice, according to the law of merchants ; which being, in this respect, founded on general principles of reason and equity (to prevent the indorser from suffering by the indulgence or negligence of the holder), was as applicable in Pennsylvania, as in any other country. They cited 1 Wils. 47; 2 Bl. Kep. 747; Doug. 650; 2 T. R. 718; 1 Dall. 252; Bull. N. P. 274-6; 1 Str. 508.

   By the Court.

— The defence is want of notice of the protest of the note in question, within a reasonable time. The law in England is very strict upon this subject. Before any tatutes existed there, to render promissory notes negotiable, such notes were often made ; but they were only regarded as evidence of a debt, and could not, as instruments, ae declared upon in an action at law, until the provision was made in the statutes of Wm. III. and Anne. It is not material, however, to review the history of this paper medium, either here or in England ; since it is clear, that in both countries, at this day, the law requires, that notice must be given by the holder, to the indorser of a promissory note, with a demand of payment, in a reasonable time after the note is dishonored by the maker, What constitutes a reasonable time, was formerly considered, by the English courts, in most cases, as a matter of fact, for the decision of a jury : and since it has been deemed by those courts, a matter of law, they have held, that if the parties live in the same town, an allowance of even a single day to the holder is quite sufficient. But in Pennsylvania, the question of reasonable notice still remains a fact for the jury to determine. Before the institution of the Bank of North America, promissory notes were few; there was no time fixed for giving notice ; and two or three months have often elapsed, before it was given. The bank had, however, a right to introduce new rules, for transacting business with their customers ; and those rules being understood and enforced, formed a law of the contract, binding on both parties. Indeed, the punctuality, and other beneficial consequences, flowing from those rules, seem to have given them a more general operation and force ; so as to constitute a general usage, and not merely a usage of the bank. But notwithstanding the necessity of giving notice exists, on general principles, as well as upon the usage, its reasonableness, we repeat, still depends, here, upon the verdict of the jury. As soon as we can, consistently with the state of the country, its roads, and its posts, it will be wise to *130'l a<^°P*' English law upon the *subject, for the sake of certainty J and uniformity, in the administration of justice : and perhaps (such is the rapid progress of population and public improvement), the court may, in future, incline to adopt it.

         As to what is sufficient notice of non-payment of a promissory note, and when such notice must be given, see Steinmetz v. Curry, 1 Dall. 234-5 n.; Robertson v. Vogle, Id. 252-6 n.; Ball v. Dennison, post, p. 163; Smith v. Hawthorn, 3 Rawle 355. Verbal notice is sufficient, and a protest, with notice thereof, is not necessary. Rohm v. Philadelphia Bank, 1 Rawle 335.

       “Death, bankruptcy, notorious insolvency, or the drawer’s being in prison, constitute no excuses, either at law or equity; because many means may remain with him of obtaining payment, by the assistance of friends or otherwise, of which it is reasonable the indorser should have an opportunity of availing himself; and it is not competent to the holder to show, that delay in giving notice, has not, in fact, been prejudicial.” Gibbs v. Cannon, 9 S. & R. 201.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Stansbury v. Marks.

      Defence of infancy.

    In assumpsit, infancy can be given in evidence, under the general issue, but the jury may decide, whether it is a sufficient discharge.
    Case. Plea, non assumpsit. The defendant offered to give infancy in evidence, on this plea; to which the plaintiff objected. But—
   By the Court.

— The evidence is clearly admissible. Under the general issue, however, the jury may decide, whether the evidence is sufficient to discharge him, or not. The position is generally true, that an infant can only bind himself for necessaries ; yet, in the court of chancery, cases occur, in which a payment would be decreed, contrary to the strict rule of the common law. In this form of action, equity is the principal consideration ; and from necessity, the courts of law, in Pennsylvania, adopt the principles of the English courts of chancery.


text:
    Jacob Conrad v. Conrad et al., Administrators of G. Conrad.

      Assumpsit for work and services.

    Where an illegitimate son works for his father, on an express promise, that he should be put on a footing with the legitimate children, he may recover the value of his services, to that extent, from the administrators.

      Assumpsit, upon a special agreement of intestate, that if plaintiff would live with him, and work his plantation (consisting of 260 acres), until plaintiff was of age, intestate would give him 100 acres of it; he did so remain, but was maintained, &e., by intestate: intestate had three legitimate children (two sons and a daughter), and three illegitimate (plaintiff and two daughters) ; he had once intimated an intention of putting plaintiff on a footing with his own children. Held, that, considering the circumstances of the case, it would be excessive, to give the full value of the land in damages; that the jury might depart from that -standard, and that the intimation of intestate, that he would give plaintiff a child’s share of his estate, might be construed as explanatory of his former promise.
    This was an action on the case, brought by Jacob Conrad, the natural son of George Conrad, against the administrators of his father, in which .a declaration was filed, containing two counts : 1st. Upon a special agreement that if the plaintiff would live with the intestate, and work his plantation for six years, the intestate would give and convey to him 100 acres of the land. 2d. Upon a quantum meruit, for work and service. Pleas, non assumpsit, and the statute of limitations.
    Upon the trial of the cause, it was proved, that Jacob Conrad having expressed an intention to leave his father’s, and learn a trade, the father said to him, with some solicitude, “ stay and work the plantation, until you are of age, and I will give you a hundred acres of it.” It also appeared, that Jacob did remain with his father, and worked the plantation ably and diligently ; that the father had three legitimate children, two sons and a daughter, and three illegitimate children, Jacob and two daughters ; that the two legitimate sons worked with Jacob on the plantation; that the father once intimated an intention of putting Jacob on footing with his other children; that the plantation consisted of about 260 acres, and was appraised at 7501.; and that Jacob Conrad was well maintained, clothed and schooled, while he remained with his father.
    *For the defendants,

    it was urged, that the action was a novelty ; that-on general principles, the service of a minor child (whether legi[*131 timate or not) was due to the parent, in consideration of his maintenance and education; and that the supposed special contract was unreasonable, and, consequently, void. (1 Black. Com. 449, 453, 450; Yelv. 17; 2 Str. 728; Doct. and Stud. 211, 212.) If, therefore, the plaintiff is entitled to recover anything, it must be on the count for a quantum meruit, when, considering him as a servant, the expense incurred for his clothing and education must be set off against a claim for wages.
    For the plaintiff,

    it was answered, that the contract was expressly proved, upon a good and valuable consideration, performed by the plaintiff ; and that considering the rights of a bastard in relation to the father’s estate, to be only such as he could himself acquire, the court would be anxious to support so meritorious a claim. (1 Black. Com. 459.)
   By the Court.

— This is an action to recover damages, for the non-conveyance of 100 acres of land, agreeable to an express promise of the intestate ; with respect to which, the evidence certainly supports the declaration. Considering, however, the relation of the parties, the other parental obligations of the intestate, and the extent of the property, it would seem rather excessive to give the full value of the land in damages, for a breach of the promise. Is there, then, anything in the evidence, that will warrant the jury in departing from that strict standard of the damages ? We think, there is. The father’s intimation, that he would place Jacob on a footing with his other children, may be fairly construed as a promise (explanatory of what he had before said), that he would give him a child’s share of the estate. If the jury adopt the construction, however, the other illegitimate children must be put out of the calculation. On this principle, one-fifth would entitle him to a verdict for 1501. As to interest, it will depend upon the discretion of the jury: but if the eldest son took the estate, at the valuation, he must have paid interest to the younger children ; and consequently, on the ground of equality, it would be right to allow it to the plaintiff.

C. Hall, C. Smith and Hartley, for the plaintiff.

J. Smith, Duncan and Tilghman, for the defendant.

Verdict for the plaintiff, 1451. damages.

       This cause was tried at York Town nisi prim, before Shippen and Bradford, Justices, in May 1793.


text:
    *Edgar’s Lessee v. James Robinson, Jr., and William Robinson.

      JPa/rol evidence.

    Parol evidence of a deed is admissible, without a notice to produce it, as against one, not a party to the deed; nor can he be compelled to produce it, if he is merely a witness thereto.
    Ejectment, tried at York Town, in which defence was taken for one-third part of the premises. The title of the lessor of the plaintiff was deduced from a patent, dated the 10th of June 1734, to Thomas Lenton, who conveyed, on the 8th of January 1741, to James Rowland, and James Rowland afterwards conveyed to Robert Rowland, who devised the premises to his sons James, John and Matthew, by a will dated the 9th of January 1799. A sheriff’s deed was then read, dated the 29th of April 1785, which recited a judgment and execution, at the suit of Andrew Lciper against Matthew Johnston and James Robinson for 30i.; and a sale of one-third part of the land, as the estate of James Robinson, to Samuel Edgar (the lessor of the plaintiff) for 40i. And parol evidence was offered to show, that James Rowland had conveyed one-third of the premises to James Robinson, senior (uncle of the defendants), who was the defendant in a former ejectment; and who was in possession of the land at the time of tho judgment and sale. ■ It was, thereupon, objected, that no parol proof eould be given of a conveyance of real estate ; nor, generally, of any instrument, without previous notice to produce it. But—
   By the Court.

— The present defendant, James Robinson, Jr., is not the party to the alleged deed ; and therefore, no notice could be given to him, within the general rule, for the production of deeds; nor, if he stands merely in the character of a witness to the deed, is he compellable to produce it. There is, therefore, no way of getting at the title, but the one proposed, if the defendant in an action chooses, under such circumstances, to conceal the muniments of the estate.

The witnesses were, accordingly, examined; and the plaintiff obtained a verdict, conformable to the charge of the court.

       Of this case, Chief Justice Tilghman says, in Little v. Delancey, 5 Binn. 171: “ The report is short, and I am satisfied the reporter was not present at the trial, or the case would have been stated with more clearness and precision and after analyzing the facts as above stated, he continues, “ upon the whole, there appears to have been something particular in the circumstances of the case, under which it might have been proper to admit parol evidence, although it does not clearly appear what those circumstances were; at all events, it is not a case which can be set up as a general rule.” And Judge Yeates says (p. 273): “There must certainly have been other facts, upon which the judgment of the court turned.”


author: The Court,

text:
    Zantzinger v. Ketch.

      Parol evidence.

    Parol evidence was admitted to explain the meaning of the words “ the deed of conveyance ” in articles of agreement, as meaning a deed conveying the land, free from all incumbrances.

    This was an action of debt, on articles of agreement to pay 1351., in two instalments, for lands bought by the defendant from the plaintiff ; and in the articles it was stipulated, that “ the deed of conveyance shall be made to the said Michael Ketch, at the first payment.”
    The defendant offered the parol testimony of a witness, who was present at the execution of the articles, to show that by the expression, “ the deed of conveyance,” the parties meant and understood, a “ deed conveying the land, free of all incumbrances.” *2 Ves. 299; Hurst v. Fell, in the p. „„ supreme court of Pennsylvania. *-
    The evidence was opposed, as tending to contradict the deed, whose expressions were clear, and did not require explanation.

      C. Smith, for the plaintiff. Hamilton, for the defendant.

         See on the admissibility of parol evidence, m variance of a written contract, Thomson v. White, 1 Dall. 424, and the notes; O’Hara v. Hall, 4 Id. 340; Christine v. Whitehill, 16 S. & R. 98: Hultz v. Wright, 16 Id. 345; Chess v. Chess, 1 P. & W. 32; Ingham v. Mason, Id. 389.

   The Court,

however, upon the authority of Hurst v. Fell, admitted the evidence, though with great reluctance; and declaring that they would reserve the point. But as the verdict was for the full amount of the plaintiff’s demand, the question was not revived.

       This cause was tried at Carlisle nisi Shippen and Bradford, Justices. prius, on the 15th of May 1793, before


text:
    Eddowes et al. v. Thomas Niell.

      Letter of credit. — Presumption of payment.

    Id order to render a letter of credit obligatory, it is not necessary, that it should be answered. A lapse of nineteen years, without notice of a default in payment, by the principal, is not, considering the circumstances of this case, such gross negligence, as to discharge the surety , and from the nature of this contract, such a lapse of time will not warrant a presumption of payment.

    This was an action on the case, for goods sold and delivered to William Niell, upon a special assumpsit by the defendant, Thomas Niell, to guaranty the payment of the price : pleas, 1st, non assumpsit, on which issue was joined ; and 2d, the statute of limitations, to which, resident beyond seas, was replied, &c.

    The plaintiffs were British mei’chants, from whom William Niell, a trader in Baltimore, was accustomed to import goods. On the 14th of Januaiy 1771, his brother, the defendant, wrote a letter to them, in which he said, “ that to strengthen his brother’s credit, he would guaranty all his dealings with their house. ” Several shipments of goods wex’e made, both before and after the receipt of this letter ; and William Niell continued to make payments on account, until the year 1775, when the revolutionary war began its agitations ; and all commercial and amicable intercourse, between Great Britain and the United States was suspended, until the peace of 1783. In the year 1784, the plaintiffs sent a power of attorney to collect the debts due to them here; their agent applied to William Niell, who acknowledged the justice of the debt; but claimed an abatement of eight years’ interest, on account of the war ; and a further credit upon giving his bond for the anxoxxnt ; which the agent refused. In 1785, William Niell died, leaving the defendant his executor ; to whom, in that chaxactex-, the ageiit of the plaintiffs applied for payment; and he answered, by admitting the claim, • and recommending a suit against the estate. No demand, howevex-, was made, on the ground of the defendant’s guarantee, until about the time of commencing the present action, in January 1790.
    *On these general facts, the plaintiff's counsel contended:
    1st. That the demand was fair and legal, founded upon an unequivocal letter of credit, applicable, in its terms and meaning, as well to shipmexxts made before, as after, it was received. 2d. That it was not necessary, to render the letter binding on the defendant, that the plaintiffs should answer it; nor that they should give notice to him of a default (as in the case of bills of exchange), at any period of the tx-ansaction. 3d. That there was no express waiver of • the guax’antee ; and nothing can be implied, even in favor of a surety, since no new security was taken ; nor any negligence shown, in omitting to prosecute the principal, upon the demand of the surety.
    For the defendant, it was urged:
    1st. That the demand was a harsh and stale one ; founded oil a letter, which had not, in fact, created any additional confidence or credit ; the receipt of which had never been acknowledged ; and the responsibility of which had never been suggested, for more than nineteen years. 2d. That the guarantee ought not to receive an indefinite interpretation ; but to be regarded as a credit, according to the course of the American trade, for a year ; and to forbear a suit for so long a time, during the life, and after the death of the principal, was, in fact, giving a new and independent credit; which is tantamount to a release of the surety. 3d. That although the statute of limitations may not apply, as a plea in bar (the plaintiffs residing abroad), the lapse of time furnishes a presumption, that the defendant’s letter never was accepted or relied upon, as a guarantee. 4th. That, on the most rigid construction, the guarantee can only apply to future, not to past transactions. And on these points, respectively, the following books were cited: 1 T. B. 167; 2 Bro. Ch. 679 ; 2 T. E, 366, 370 ; 1 Pow. Cont. 287 ; Ibid. 8, 9, 10.

       s. p. Smith v. Dann, 6 Hill 543; Union Bank v. Coster, 3 N. Y. 203. But in Kay v. Allen, 9 Penn. St. 320, it was decided, that a letter of credit does not create a liability on the part of the writer, unless he has notice of acceptance, or the guarantee and credit given were contemporaneous. See also, to the same point, Kellogg v. Stockton, 29 Penn. St. 460; Bay v. Thompson, 1 Pears. 561; Douglass v. Reynolds, 7 Pet. 113; s. c. 12 Id. 497; Lee v. Dick, 10 Id. 482; Adams v. Jones, 12 Id. 207; Wildes v. Savage, 1 Story 22.

       A continuing guarantor is not discharged, by the mere neglect of the creditor to enforce payment, in the absence of connivance, or of negligence so gross as to amount to fraud. McKechnie v. Ward, 58 N. Y. 541.

   By the Court.

— Letters of credit are a common and useful instrument in the course of commerce. They are, however, of a very serious nature ; and the writer is bound to comply with the contents, according to their genuine and honest import. In order to render them obligatory as a contract, it is not necessary, that they should be answered, if credit is given upon them. Like the case of transmitting a bond, in a letter, acquiescence and acceptance are implied, in the silent receipt of the instrument.

It has been urged that the lapse of nineteen years, without notice of a default in payment by the principal, is a virtual abandonment of all recourse to the surety; on the principles applicable to bills of exchange, and to other negotiable instruments. But there is no analogy between the cases ; for the engagement of the letter of credit extends, in its very nature, to various future transactions, without reference to time or amount. It is true, however, that the gross negligence of a creditor, even of the *obligee psjgg in a bond, may operate to discharge a surety; as where the obligee is *- requested by the surety to proceed against the principal, in order to save the debt; if he neglects or refuses to do so, the surety, both in law and equity, will be exonerated ; and this is the case in 2 Brown’s Chancery Reports, 579. But does the evidence in the present action, justify an adoption of the rule? From the years 1771 and 1772, when the shipments were made, until the year 1775, when payments were first suspended, there could be no reason for calling on the defendant. From 1775, until the peace of 1783, the debtor was guilty of no default, which would warrant an application to the surety; for he was prevented, by the war, from corresponding with the creditor, and making any payment or remittance on account of the debt. As soon as the peace had restored the intercourse between the parties, the creditor applied for payment to the debtor, who acknowledged the debt; claimed an abatement of interest; and made some overtures for a settlement ; but died in the next year, without effecting anything in that respect. The agent of the plaintiffs then addressed the defendant, not as surety, but as executor of his brother: and, indeed, it does not appeal', that the agent knew of the letter of credit, until sometime afterwards.

Tilghman and Bowie, for the plaintiffs. Ingersoll, Smith and Duncan, for the defendant.

On this review of the facts, we cannot perceive any culpable negligence, on the part of the plaintiffs, in pursuing their original debtor : nor is it clear, that they had any right to call upon the defendant, as a surety, until they had failed in their endeavors to recover from the principal; or the principal had become notoriously insolvent. The want of notice, therefore, in such a case, and under such circumstances, does not, in itself, furnish a bar t® the demand; and although, in some instances of debts, a lapse of time will warrant a presumption of payment; yet, from the nature of this contract, no such presumption can arise here.

Verdict for the plaintiffs,

       This cause was tried at York Town nisi prim, on the 22d of May 1793, before Shippen and Bradford, Justices.


text:
    JANUARY TERM, 1794.
    Schenkhouse v. Gibbs et al.

      Factors. — General amerage.

    If a factor is employed by several foreign merchants, unconnected with each other, he may remit by a general bill, payable to one, with separate drafts on him, in favor of each of the others; but notice of such a remittance must be given to all the parties. In such a case, if a partial loss occurs, it must be borne, as a general average, by all who are concerned.
    Case. The facts on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et at. (2 Dall. 134) ; and the note annexed to it. (Ibid. 136.) The following charge- was delivered to the jury.

      &) An outline of this case was annexed in a -note to the case of Ingraham v. Gibbs. 2 Dali. 134; but it was thought of some importance, to add the opinion expressed by the court on the trial.

   By the Court.

— We are of opinion, that the mode of remitting by a general bill, payable to one merchant, with separate drafts in favor of each of the other merchants, who are interested in the amount of the bill, is a good and lawful execution of the trust and authority of a factor, employed by several distinct and unconnected merchants, resident abroad. No inconvenience can arise from the transaction, if all the parties are apprised of the distributive appropriation. It is essential, however, to such a remittance, that notice should be given to the jjarties. In the present case, there is no proof of express notice to the plaintiff: but this may be supplied by facts, which raise a fair presumption of the plaintiff’s knowledge on the subject : and his delay in protesting and returning the bill, together with the draft on Portener, sent directly by the defendants to him, are facts of that description.

It only remains to observe, that Portener, tbe general trustee, could give no preference to any claimant on the fund; and that in case of a partial loss, it must have been borne, as a general average, by all the concerned.

Verdict for the defendants.


text:
    *McEwen v. Gibbs et al.

      Witness.

    Plaintiff, a certificated bankrupt, was admitted to prove a parol acceptance of a bill of exchange, the foundation of the action, after he had released hia interest at the bar, his assignees having previously entered into security for costs.

         A party to a suit is a competent witness to prove many facts, which are collateral to the issue; thus, a party is a competent witness to prove the service of notice to produce papers on the trial of a cause, and to prove notice of taking depositions. Jordan v. Cooper. 3 S. & R. 564. So, to prove that a subscribing witness to a deed is dead, to let in secondary evidence of its execution (Douglass’s Lessee v. Sanderson, 1 Dall. 116; s. c. 1 Yeates 15); and that a material witness, whose deposition has been taken, is unable to attend court, by reason of advanced ,age and indisposition; Mean’s Lessee v. Flora, cited, 1 Yeates 16; 2 Dall. 117. A person interested in a suit may be a witness to show the identity of blocks, taken from marked trees, on the different lines claimed by the parties. Lessee of Coxe v. Ewing, 4 Yeates 429. See also, The King v. Lukens, 1 Dall. 5, and note; Bank of Pennsylvania v. Hadfeg, 3 Yeates 560.
      If no evidence is offered against a defendant to a suit, he may he a witness for his co-defendant, Wakely v. Hart, 6 Binn. 316; but if circumstances are proved, from which it is possible for the jury to presume facts amounting to guilt, the person against whom these facts have been proved, cannot be received as a witness. Pennsylvania v. Leach, Add. 353.
      After a submission to an indictment, it is usual to hear the defendant’s statement, but not under oath. Respublica v. Askew, 2 Dall. 189.
      A party may be made a competent witness, wherever all his interest in the event of the suit can be removed. A plaintiff who, after the commencement of a suit, has made a voluntary assignment of all his property to creditors, and has also executed a release to the assignees, of all his interest in the money which may be recovered in the action, is a competent witness in the cause, provided all the costs are paid before he is sworn. Steele v. Phoenix Ins. Co., 3 Binn. 306. See also, Field v. Biddle, 2 Dall. 171-2, note; Bennett v. Fleshington, 16 S. & R. 193; Cook v. Grant, Id. 198. In replevin by R., the defendant avowed the taking, in a house occupied by N., for rent due by N. to defendant; the plaintiff replied no rent in arrear; Held, that N. was not a vitness for the plaintiff; being liable to plaintiff for the costs of suit, in addition to the amount of rent recovered. Rush v. Flickwire, 17 S. & R. 82. See, on this subject, McIlroy v. McIlroy, 1 Rawle 433; Hart v. Heilner, 3 Id. 407; Kimball v. Kimball, Id. 469; Cox v. Norton, 1 P. & W. 412; Black v. Marvin, 2 Id. 138; Gallagher v. Milligan, 3 Id. 177

   Case, on a parol acceptance of a bill of exchange. The plaintiff having become a certificated bankrupt, was called as a witness to prove the acceptance. Dallas objected to his competency, on the ground of the witness’s liability for costs; and his interest in augmenting the estate surrendered under his commission.

But it appearing, that the assignees carried on the suit, and had entered into security for costs, The Court (after the plaintiff had released his interest at the bar) directed him to be sworn, upon the authority of Scott v. McClenachan.


author: McKean, Chief Justice.

text:
    * APRIL TERM, 1794.
    Boyd’s Lessee v. Cowan.

      Ejectment. — Mesne profits.

    The mesne profits can be recovered in an ejectment, by way of a amagce.

    Ejectment, tried at West Chester, in Chester county, on the- 22d of October 1793. The jury gave a verdict in favor of the plaintiff, for the premises mentioned in the declaration; and also for 41i. 13s. 4d. damages, being the value of the mesne profits ; subject to the opinion of the court on a point reserved ; to wit: whether the mesne profits can be recovered in an ejectment, by way of damages? After argument, when the judges were about to deliver their opinions, the parties made an amicable settlement of their dispute : but the general question being of importance, no excuse will be offered, for inserting here, the opinion prepared by the chief justice.

         The plaintiff in an action of ejectment may recover mesne profits, on giving notice to the defendant, that he intends to proceed for them. Lessee of Battin v. Bigelow, 1 Peters C. C. 452. “When the action of ejectment remained in its primitive state; while it was strictly a remedy for a lessee, quwre ejiait infra terminwm, there, the value of the land, during the time the defendant tortiously held it, was the measure of damages. Wlxon the proceeding came to be fictitious, nominal damages only were given; and this introduced the action-of trespass m et armis, generally called the action for mesne profits, and it would seem, that even in the fictitious action, the plaintiff may recover his real damages, by giving notice of his intention to the defendant. But the usual and safest course is, only to take a verdict for nominal damages, and recover the real damages in the action for the mesne profits, and that has been the unvaried practice, as well before as since the act introducing the writ.” Per Duncan, J., Osbourne v. Osbourne, 11 S. & R. 58.

   McKean, Chief Justice.

— In delivering my sentiments upon the point reserved in this cause, I shall first consider the objections made to the recovery of the mesne profits, in the action of ejectment; and then, the reasons in favor of such a recovery.

1. The leading objection (and which, at first sight, appears the strongest) is, that the action of trespass for the mesne profits, is always laid with a continuando ; thus differing from the form of the action of ejectment, which alleges only a single act of entry and ouster. For which 3 Black. 205; 3 Wils. 118; 2 Bac. Abr. 181; and Runnington, 4, 5, 44, 164, have been cited.

2. Special bail can be required in the action of trespass for the mesne profits, but not in the ejectment. (2 Barnes 59.)

3. If damages are given for the mesne profits, in the ejectment, and an action of trespass shall afterwards be brought for the same cause, the former cannot be pleaded in bar.

4. The law has been against this practice, and cannot now be altered except by the legislature.

*5. It would be inconvenient to allow the practice ; because titles are frequently so complicated and difficult, as sufficiently to command the whole attention of the jury; and it would be too burdensome to impose upon them, also, the ascertaining the value of the mesne profits by one verdict.

This is the amount of all that has been, or, I believe, that ean be urged against the measure. My answer to the first objection is, that I agree that the form of the writ and declaration in an action of trespass for the mesne profits contains a continuando of the trespass, and that it cannot be changed but by positive law. This prevents the necessity of several actions of trespass, for every several trespass; and unless it is so laid, it nowhere appearing on the record that the trespass was continued for a certain time, it must be takm by the court and jury to be for a single act, and damages can be given for nothing more. But in an ejectment, there is no arrest, no writ, and the form of the charge in the declaration in the king’s bench in England is, “that the defendant entered into the tenements, &c., of the plaintiff, with force and arms, &c., and ejected, expelled and removed him ; and him being so ejected, expelled and removed, the defendant hath hitherto withheld from him, and still doth withhold, the possession, &c.” (Jacob’s Law Dictionary, title Ejectment; 1 vol. Attorney’s Practice in K. B. page 424, 440; Lill. Ent. 192, 205.) Besides, it sufficiently appears on the whole record in the ejectment, that the plaintiff was in possession, that the defendants ousted him on a certain day, and detained the possession until the trial; so that the action is not for a single act of trespass; and therefore, the jury may well give damages for the whole time the wrong continued. At all events, the precedent may be so made, in the common pleas, as well as in the supreme court.

With respect to the second objection, that special bail ean be required in the action of trespass for the mesne profits, but not in the ejectment; it is true, that, upon affidavit, the court of common pleas, in England, has ruled special bail in the action of trespass for mesne profits, though it has been held otherwise in the king’s bench. (Duncombe v. Motteram, Pr. Reg. Com. Pl. 62.) However, there appears to be no weight in this, when it is considered, that this action is brought after the ejectment is determined, so that the plaintiff is in no worse condition (although he has no special bail in the ejectment) on that account, but rather a better ; for if the value of the mesne, profits is recovered in the ejectment, he may have a fieri facias for them immediately. If, too, the defendant should, before execution is executed, withdraw his person and effects from the jurisdiction of the court, the plaintiff would still be left in a better situation ; for if he pursues the defendant, he may arrest him in an action of debt on the judgment, in any of the United States ; whereas, in such a ease, no action of trespass for the mesne profits could be brought (it being a local action), in a foreign country, and bail demanded.

*In answer to the third, I will only mention, that nothing appears plainer, than that the defendant may plead the recovery of the damages in the ejectment; with an averment that they were given for the mesne profits, in bar of the action of trespass. (1 Leon. 313, ca. 437; 3 Ibid. 194, ca. 242.

The fourth objection, that this court cannot alter the law, is correct, beyond controversy; but there is -no positive law respecting this action, or directing that the mesne profits shall not be recovered in it, as well as possession ; and the court can alter the practice, and institute any rules in an action of ejectment, which they may deem beneficial, or for the furtherance of justice, without legislative aid.

An ejectment is the creature of Westminster Hall, and has been gradually moulded into a course of practice, by the rules of the courts. It is, in form, a fiction; in substance, an action invented for the speedy trial of titles to the possession of lands. For a long time, damages only could be recovered in this action, the measure of which was always the mesne profits. (3 Wils. 118, 120.) In the 14 Hen. VII, and not before, the term or thing, as well as damages, were allowed to be recovered. At first, there was a lease really sealed on the land, and the action was against the real tenant in possession. It came in place of the assize, in which action, the possession, as well as the mesne profits, was recoverable. Afterwards, casual ejectors were set up ; and notice ordered to be given to the tenant in possession. Then the new practice was invented by Chief Justice Rolle. Not very long ago (in 1751), it was ruled in the common pleas, that if, after a recovery in ejectment against the defendant, he should bring a writ of error, he should give 'bail to the plaintiff in a sum equal to the value of, at least, two years’ mesne profits. (2 Barnes Notes, 86.) Many other alterations have taken place ; 'and the same authority which brought it thus fax, may certainly carry it to a higher degree of perfection, as experience happens to show inconveniences or defects. Being under the control of the court, it may be modelled so as to answer-, in the best manner-, every end of justice and convenience. (3 Burr. 1292, 1295; 3 Bl. Com. 205; 2 Burr. 660.) Besides, by the 6th section of the act of assembly, entitled “ an act for the more speedy and effectual administx-ation of justice,” it is declared and enacted, that “ the justices of the supreme court have full power and authority to make such rules for the regulating the px-actice of the said court, and expediting the determination of suits, as they in their discretion shall judge necessary.” Of the power of the court, therefore, in this particular, I entertain no doubt.

I shall now, briefly, consider the argumentum ah inconvenienti; which refers but to a single instance, to wit, the difficulty the jury may labor-under, in deciding on the titles of the parties to the possession, and at the *1411 same time, in fixing the value *of the mesne profits, if the verdict -* shall be for the plaintiff. There can be no great hardship in this. In actions of waste, dower, assize, and all others where the thing itself, as well as the damages, is recovered, the jury are liable to the same inconvenience : nor can I perceive any great perplexity that can arise in determining the rent, or annual value of a house, or parcel of land, when complete evidence is given of it.

It appears to me, that the inconvenience or hardship is the other way. After a person has been unlawfully kept out of his house or land, for a series, of years, and undergone great trouble and expense in recovering a judgment for them ; to give him the possession merely, without any satisfaction for the use and occupation, pending the action, does not seem complete justice. To tell him, “You must sue for the mesne profits in a new action, fee counsel, attend the courts, produce witnesses, and have a new trial, for- the sole, purpose of fixing their value,” is certainly imposing an improper burden upon him, if justice can be had in a more speedy, cheap and easy way. Taking a verdict for the amount of the mesne profits, as well as on the title in the ejectment, will prevent this circuity, delay and expense ; and I believe it to be equally beneficial for the defendant; for if, on the trial, he shows a' reasonable ground for controverting the plaintiff’s claim, or a specious title in himself, a jury would be inclined to give but very moderate damages against him (of which the jury in the action for the mesne profits can have no consideration, as the title cannot in that action be again gone into), and he would certainly be saved the costs and expenses of the second suit.

It is in argument, in law and in logic, as it is in nature (destructio unius, est generatio alterius), that the destruction begets a proof. I shall, however, proceed to consider the arguments and proofs on the other side of the question. This improvement of the action of ejectment has been suggested by the court in the case of Treherne v. Gressingham, 2 Barnes Notes 59; Whitefield's case, 1 Lill. P. R. 680; Buller’s Nisi Prius, 88. There has been no judicial opinion given on this subject, in the supreme court of Pennsylvania, prior to the revolution, that I have heard of, unless it was in the case of the Lessees of James Dixon v. Thomas Hosack, tried on the 15th of April 1775, when 4-11. were awarded for the plaintiff ; but such an opinion has been given in Delaware, above thirty years ago ; and the general practice in that state. has been, ever since, to take a verdict for the mesne profits, in the action of • ejectment. Nay, my memory does not serve me, in recollecting a single instance, where an action of trespass for the mesne profits has been brought in Delaware, from the time mentioned ; though, without doubt, it might have been done. There has been no similar precedent in Pennsylvania, since the revolution; but on the other hand, it has been recommended, *more r¡¡! than once, in the supreme court of this state, to take a verdict for the L mesne profits, in the ejectment; and the point now before the court was argued, and the same case cited, by Messieurs Tilghman and Sergeant, in the case of William Tharpe v. John Bell, of September term 1787, when judgment was given in favor of the measure. So, in an ejectment, on the demise of Jasper Yeates, Esq., and others v. Charles Stewart, which was tried at nisi prius, at Chambersburg, for the county of Franklin, in June 1789, a verdict was taken for 130Z. damages, for the mesne profits ; and a judgment rendered upon it, for the plaintiff, in banc.

Upon the whole, as it appears that this court has the power of allowing a verdict to be given for the mesne profits, as damages in the ejectment; as the judges in England, so late as the year 1742, could see no reason why it should not be done ; as it has been in use for many years in the state of Delaware, under similar authority, and no inconvenience from the practice has hitherto been there discovered; as it has been in precedent in this court, by judicial decisions : and as it is calculated, in my judgment, for the reasons assigned, to answer more fully the ends of justice and convenience, by avoiding unnecessary delay, a circuity of action, and a double expense to suitors, I still must hold the opinion, which my former brethren, as well as myself, unanimously, entertained upon the subject. If it shall be thought best by the court, that plaintiffs in ejectments should in all ca'ses be turned round to an action of trespass, for recovering the mesne profits ; yet, after what has passed, on former occasions, I conceive it ought not to be the rule in this action ; but should be applied only to future cases ; because, at the present moment, the law in Pennsylvania is, that the verdict in this action is regular, and agreeable to the practice of the supreme court. Est boni judicis, ampliare justitiam.


text:
    *SEPTEMBER TERM, 1794.
    Commonwealth v. Chambre.

      Computation of time.

    The computation of time must be by calendar months, in the exception (in the 10th section of the act of 1780, for the gradual abolition of slavery) of domestic slaves attending upon persons passing through, or sojourning in the state, &e., provided they be not retained therein longer than six months.
    A habeas corpus was issued to the jailer of Philadelphia, to bring before Judge Shippen, the bodies of Magdalen and Zare, two negro women, committed as the absconding slaves of Mrs. Chambré. The judge, after hearing the case opened, adjourned it, for argument and decision, to the supreme court, on the 13th of September 1794, when the following facts appeared :
    Mrs. Chambré was a widow lady, in the island of St. Domingo, and owned the negroes in question as slaves : but on the conflagration at Cape Francois, she fled, bringing them with her to Philadelphia ; where she resided five calendar months and three weeks ; a period that exceeds six lunar months, in computation of time. She then removed with the negroes to Burlington, in the state of New Jersey, designing, as it was suggested, to avoid the operation of the act for the gradual abolition of slavery ; but no proof was offered, that she had ever intended to settle in Pennsylvania. The negroes, absconding from Mrs. Chambré, came to Philadelphia ; and now they asserted their freedom, under the 10th section of the act, which declares all unregistered negroes and mulattoes to be free, “ except (inter alia) the domestic slaves attending upon persons passing through or sojourning in this state, and not becoming resident therein : provided such domestic slaves be not aliened or sold to any inhabitant, nor retained in this state longer than six months.” (1 Dall. Laws, 841.)
    For the negroes, it was contended, that, upon authority, the general legislative expression, must be construed to mean lunar, and not calendar, months ; for which were cited, 5 Co. 2; Cro. Jac. 167; 1 Str. 446; 2 Bl. *1441 Com. 141; 3 Burr. 1455; Doug. 446, 463. *And that, even if the J computation by calendar months were more usual at common law, a different construction would be adopted in favor of liberty, and to prevent an evasion of the most honorable statute in the Pennsylvania code. Harg. Co. Litt. 145 b.

   But The Court (stopping the counsel for Mrs. Chambré) said, that they were unanimously of opinion, that the legislature intended calendar months; that the same expression, in other acts of the general assembly, had uniformly received the same construction (Brudenell v. Vaux, 2 Dall. 302); that there was nothing illegal or improper in the conduct of Mrs. Chamhré, on the occasion; and that, therefore, the negroes must be remanded into her service.

Lewis, Ingersoll and Franklin, for the negroes. M. Levy, for Mrs. Chambre.

         Months are to be considered calendar, in all contracts or transactions between man and man, Shapley v. Garey, 6 S. & R. 539; but where a sentence of imprisonment was recorded, for the space of one month, the prisoner was discharged at the expiration of a lunar month. Respublica v. Oswald, 1 Dall. 329, in note.

       Thomas v. Shoemaker, 6 W. & S. 179. The word “ month,” in a statute, means a calendaj month. Moore v. Houston, 3 S. & R. 169.

       It is now well settled, that mesne profits are recoverable in the ejectment suit, up to the time of the verdict. Duncan v. McGill, 4 Whart. 230. But the plaintiff must give previous notice of such claim. Cook v. Nicholas, 2 W. & S. 27; Bayard v. Inglis, 5 Id. 465.


text:
    *SEPTEMBER TERM, 1795.
    Respublica v. Mulatto Bob.
    Murder.— Witness.

    Although murder in the first degree is, by the act of assembly, confined to the wilful, deliberate and premeditated killing of another, yet, the intention remains, as much as ever, the criterion of the crime.
    A slave is not a competent witness.
    Indictment for murder of the first degree. The charge of the court was delivered by the Chief Justice, who stated the facts and the law to the following effect :

       During the trial, the counsel for the prisoner offered a negro slave as a witness in his favor; but, the attorney-general objecting to his competency, he was rejected, without argument: and it was said by McKean, Chief Justice, that it was a settled point at common law, that a slave could not be a witness, because of the unbounded influence of his master over him; which was, at least, equal to duress; that the act of assembly was in aid of the common law, not to change its principles; and that it would be difficult to administer an oath to a slave, for want of knowing any religion he professed.

   McKean, Chief Justice.

— The evidence in this case may he comprised in a few words. It appears, that a wedding being fixed for Easter Monday, a considerable number of negroes assembled; and about 10 o’clock at night, a quarrel arose between mulatto Bob, the prisoner at the bar, and negro David, the deceased. For awhile, the parties fought with fists; and the prisoner was heard to exclaim “ enough !” The affray, however, became general, and continued so for some time. When it was over, the prisoner went to a neighboring pile of wood, and furnished himself with a club ; he was advised not to use it, but he declared that he would, and entered the crowd with it in his hand ; after remaining there about ten minutes, he left the crowd, without his club ; and again repairing to the wood-pile, took up an axe ; being likewise dissuaded from returning to the crowd with the axe, he said he would do it ;” and striking the instrument, with great passion, into the ground, “ swore, that he would split down any fellows that were saucy.” Accordingly, he mixed once more among the people ; a struggle *was immediately heard about the axe ; the prisoner then struck the i deceased with it, on the head; the deceased fell; and as he was attempting to rise, the prisoner gave him a second blow on the head, with the sharp edge, which penetrated to the brain. After languishing three days, death was the consequence of this wound.

From these facts, we are to inquire, what crime the prisoner has committed ? Murder, in the first degree, is the wilful, deliberate and premeditated killing of another. There are various inferior kinds of homicide ; but on the present indictment, our attention is confined to a consideration of the highest, and most aggravated description of the crime. Then, let us ask, did the prisoner wilfully kill the deceased ? It is not pretended, that there was any accident in the case ; and therefore, the act must have been wilful. Was the killing deliberate and premeditated? or was it the effect of sudden passion, produced by a reasonable provocation ? There had been a combat with fists ; but this was over, when the prisoner, without any new provocation, first procured a club, and losing that weapon, afterwards armed himself with an axe. It cannot surely be thought, that the original combat was a sufficient provocation for the prisoner’s taking the life of his antagonist. An assault and battery may, indeed, be resisted and repelled, by a battery more violent; but the life of a fellow-creature must not be taken, unless in self-defence.

It has been objected, however, that the amendment of our penal code, renders premeditation an indispensable ingredient, to constitute murder of the first degree. But still, it must be allowed, that the intention remains as much as ever the true criterion of crimes, in law, as well as in ethics ; and the intention of the party can only be collected from his words and actions. In the present case, the prisoner declared, that he would split the skull of any fellows who wouid be saucy ; and he actually killed the deceased, in the way which he had menaced. But let it be supposed, that a man, without uttering a word, should strike another on the head with an axe, it must, on every principle by which we can judge of human actions, be deemed a premeditated violence.

The construction which is now given to the act of assembly on this point, must decide, whether the law shall have a beneficial or pernicious operation. Before the act was passed, the prisoner’s offence would clearly have amounted to murder; all the circumstances implying that malice which is the gist of the definition of the crime at common law ; and if he escapes with impunity, under an interpretation of the act, different from the one which we have delivered, a case can hardly occur to warrant a conviction for murder in the first degree.

^Tenderness and mercy are amiable qualities of the mind ; but if they are exercised and indulged, beyond the control of reason, and the limits of justice, for the sake of individuals, the peace, order and happiness of society, will inevitably be impaired and endangered. . So far as respects the prisoner, I lament the tendency of these observations; but so far as respects the public, I have felt it a sacred duty to submit them to your consideration.

Verdict, guilty.

         3 Smith’s Laws, 187.

       In murder, if an intention to kill exist, it is wilful; if the intention be accompanied by such ciroumstances as evince a mind fully conscious of its own purpose and design, it is deliberate ; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. Commonwealth v. Drum, 58 Penn. St 9 Green v. Commonwealth, 83 Id. 75.

         This indictment was tried at Easton, on the 21st of June 1795, before McKean, Chief Justice, and Smith, Justice.


text:
    Holloback v. Van Buskink, surviving administrator, &c. Racroth et ux. v. The Same.

      Assumpsit.

      Assumpsit will lie on the part of residuary legatees, against an administrator cum testamento annexo, without proof of an express assumption by him.

    These were actions on the case, in which the plaintiffs declared on a general indebitatus assumpsit, for money had and received by the defendant (who was the surviving administrator cum testamento annexo of Catharine Hollobaok) to their use, respectively. They claim, distributive shares in the residuum of the estate of Catharine Hollobaok, under her will: but it was questioned, whether such actions would lie, without proving an assumption on the part of the defendant.

       This is not law, at the present day; the remedy is now exclusively in the orphans’ court Ashford v. Ewing, 25 Penn. St. 213.

   The Court,

however, declared their opinion, that the actions might be maintained, without proof of an express assumpsit: and verdicts were, accordingly, given for the plaintiffs, with leave to move for new trials.

      5) Decided before Yeates and Smith, Justices, at Northampton nisi prius, in October 1795.


text:
    Anonymous.

      Conditional verdict.

    Case for obstructing a water-course, by which the plaintiffs meadow was watered. Plaintiff having proved his right to the course, his counsel executed and filed a writing, by which they bound him to release any damages, that the jury might give, if defendant should execute a deed, securing to plaintiff the enjoyment of the water, and the court advised the jury, on this condition, to find the full value of the meadow in damages.
    This was an action on the case for obstructing a water-course, by which the plaintiff’s meadow was watered. On the trial, it appeared, that the defendant had purchased a mill, with notice that the vendor had before sold the meadow in question to the plaintiff, covenanting that the plaintiff might use the water, over and above what was necessary for the mill. The defendant obstructed the water-course ; and it seemed to have been his object, by so doing, to compel the plaintiff to sell the meadow to him.

       Decided before Yeates and Smith, Justices, at Northampton nisi prius, in October 1793. In delivering the charge to the jury, Mr. Justice Yeates referred to a similar case, before the Chief Justice and himself, in which the court had given, and the jury had adopted, the same advice.

       The name of this case is Walker v. Butz, 1 Yeates 574, which is a better report.

   On these facts, The Court recommended (with the concurrence of the counsel on both sides) that the defendant should do *an act of justice in securing to the plaintiff, by deed, the enjoyment of the water-course; but he obstinately rejected the proposition. The plaintiff’s counsel, thereupon, executed and filed a writing, by which they bound their client to release any damages that the jury might give, in case the defendant should execute such a deed as the court had proposed ; and the court advised the jury, on this condition, to find the full value of the meadow in damages ; which was, accordingly, done.

Sitgreaves and Thomas, for the plaintiff. Ingersoll and Clymer, for the defendant.

         In the case of Clyde v. Clyde, 1 Yeates 92, which was a special action of assumpsit for a privilege of a water-course through the lands of the defendant, large damages were given by the jury, under the direction of the court, to compel the defendant to do justice. See, on the subject of conditional verdicts, Decamp v. Feay, 5 S. & R. 323; Coolbaugh v. Pierce, 8 Id. 418.

       And see 1 Tr. & H. Pr. § 53, and notes.


text:
    *DECEMBER TERM, 1795.
    Graham v. Bickham.

      Damages.

    Unless the penalty for breach of a contract, is a sum, agreed to be paid and received, absolutely, in lieu of performance, damages may be recovered commensurate with the injury suffered by a non-pen'ormunre.
    This was an action on the ease for damages, which were laid at 10,000?. in the declaration, founded upon the following agreement, signed by the defendant:
    “ I do certify, that I have bought of William Graham 17,344 dollars, six per cents of the United States, to be delivered to me, On the 1st of July next, on my paying to him, on or before transferring the same, the sum of 22,318 dollars in specie. And for the faithful ¡performance of the above agreement, I bind myself, my heirs and executors, in the sum of 1000?., lawful money of Pennsylvania, to be paid to said Graham, or his order, in case the same is not fully complied with by me. Philadelphia, 17th January 1792.”
    On the trial of the cause, a verdict was given in favor of the plaintiff, for 1798?. 17s. 7c?., subject to the opinion of the court, on the* question, whether the plaintiff could recover more than 1000?. in an action upon this agreement ?
    The case was argued by E. Tilghman and Ingersoll, for the plaintiff,
    on the position, that unless .a certain sum is agreed by the parties to be paid and received, at all events, as the measure of damages, the plaintiff may waive the penalty of the agreement, and proceed for damages according to the actual injury. (4 Burr. 2228; 2 Atk. 371; 1 H. Black. 232; 1 W Black. 395, 373; 2 Atk. 190.)

      Lewis and Rawls, for the defendant,
    insisted, that the contract ought not to be enforced, beyond the meaning and understanding of the parties; which was obviously to fix a sum, as the extent of the defendant’s responsibility, in case of a non-compliance *with his engagement. (16 Vin. [*50 Abr. 301, “ Penalty,” pi. 3, 5, 10.) ^

       s. c. 2 Yeates 62.

   By the Court.

— The substance of the agreement between the parties was, to buy and sell stock. The penalty was merely superadded as a security for performance ; and not as a sum to be paid and received absolutely, in lieu of performance. The plaintiff is entitled (notwithstanding the penalty) to recover damages, commensurate with the injury suffered by a nonperformance. The judgment must, therefore, be rendered in his favor, for the full amount of the verdict.


text:
    *MARCH TERM, 1796.
    Febeiger’s Lessee v. Craighead.

      Sheriff’s sale.

    A sheriff’s sale of land, by virtue of a judgment and execution, subsequent to a mortgage to the trustees of the loan-office, does not destroy its lien.
    At a court of Nisi Prius, held at Carlisle, a case was stated for the opinion of the court, containing these facts: A tract of land, in Cumberland county, was mortgaged by John Glenn to the trustees of the loan-office (whose rights, powers and duties, have been transferred by law to the plaintiff, as state treasurer), and the land was afterward levied upon, and sold at a sheriff’s sale, to the defendant, by virtue of a subsequent judgment and execution. The question is, whether the mortgage remains a lien upon the land, against the purchaser at sheriff’s sale ?

      Ingersott, attorney-general, for the plaintiff. Lewis, for the defendant.

         s. c. 2 Yeates 42; and for C. J. Suippbn’s notes of this case, see 3 Rawle 117, note a.

       Said to be imperfectly reported, in 3 Rawle 137.

         Whatever may have been the effect of a judicial sale on other interests, both the policy and the practice of the legislature have been, to hold the lien of a mortgage to the state undischarged, by anything but actual payment into the treasury, and such mortgage is not divested by a judicial sale, on any other lien of the land mortgaged, nor is it to be paid out of the purchase-money raised by such sale. Duncan v. Reiff, 3 P. & W. 368. In the report of the case of Febeiger’s Lessee v. Craighead, by Yeates, a qumre is made, as to the effect, upon a prior mortgage to an individual, of a sale under an execution issued by virtue of a judgment subsequent to the mortgage. In the case of Moliere’s Lessee v. Noe, 4 Dall. 450, which was a sale by order of an orphans’ court, this point was suggested, and the judges expressed their opinion, in concurrence with that of the counsel on both sides, that a mortgage retains its lien on the premises, notwithstanding such a sale. The question above stated was, however, presented to the supremo court, for the first time, for direct decision, in Willard v. Norris, 2 Rawle 56; and then it was held, that when land, subject to a mortgage, is sold under a judgment, obtained subsequently to the execution and recording of the mortgage, the purchaser at sheriff’s sale takes the land discharged of the lien of the mortgage. This decision was received with astonishment by the profession, and alarm by the public; and at the ensuing session of the legislature, bills were simultaneously introduced into both houses, to preserve the lien of a mortgage, notwithstanding a sale under a junior incumbrance; subsequently, the act of 6th April 1830, was passed to that effect. Several decisions followed that in Willard v. Morris, sustaining and confirming it; McLanahan v. Wyant, 1 P. & W. 96; Fickes v. Ersick, 2 Rawle 166; Presbyterian Corporation v. Wallace, 3 Id. 109; in this case, the principle was fully discussed, as res integra ; and the learned arguments of the counsel on both sides, and the elaborate and profound opinion of the court, present a complete disquisition on the subject. Notwithstanding the act of 1830, the lien of a mortgage may be divested by a sale under a junior incumbrance, if such be the agreement of the parties. Shultz d. Diehl, 2 P. & W. 273.

       The decisions under the act of 1880, which we foreign to the point involved in Febeiger v. Craighead, will be found collected in Bright, Dig. 1103-4. And see 1 Tr. & H. Pr. § 1317-8.

   By the Court.

— The case admits of no doubt. Judgment must be entered for til 3 plaintiff.


text:
    Bank of North America v. Wycoff.

      Notice of nonpayment.— Witness.

    The indorser of a promissory note must receive notice, within a reasonable time, of the non-payment of the note by the maker.
    An executor, who is entitled to a share in the residuum of his testator’s estate, which is interested in the suit, is not a competent witness to prove such notice, although the objection appear on his cross-examination.
    Case, by the indorsee against the payee and indorser of a promissory note, made by Joseph Harrison.
    The question was, whether the defendant had received notice within a reasonable time, of the non-payment of the note by the maker? Jacob Lawerswyler, the runner of the bank, was called as a witness, to prove the notice ; but after a long examination in chief, he stated on Ms cross-examination, “that he was the executor of Jacob Winney, a stockholder in the bank of North America; and was entitled to a share in the residuum of the testator’s estate.”
    *The defendant’s counsel then objected to the competency of the witness, on account of his Mterest in the bank. They insisted, that although this appeared after a cross-examination, it was sufficient for the rejection of his evidence altogether; and that, consequently, as there was no proof of notice, independent of his evidence, the plaintiff must be non-suited.

         s. c. 2 Yeates 39.

   The Court concurring, clearly and explicitly, in the opinion of the defendant’s counsel,

The plaintiff suffered a nonsuit.


text:
    Bell v. Andrews.

      Statute of frauds.

    Where there has been payment of the price of land, under a parol agreement for the sale of it, an action will lie to recover damages for the non-performance of such a contract.

    This was an action on the case, to recover damages, for the breach of an agreement to sell and convey to the plaintiff, in fee-simple, a tract of land in Westmoreland county.

      Hallowell, for the plaintiff,
    offered parol evidence of the agreement, as stated in the declaration; of the payment of the price of the land; of the defendant’s subsequent acknowledgment of the sale and payment; and of the defendant’s refusal to execute a conveyance.

      S. Levy, for the defendant,
    objected to any proof of a parol agreement, for the sale of lands in fee-simple, as the act for the prevention of frauds and perjuries (1 Dali. Laws, 640 ; 1 Sm. Laws, 389), required, expressly, that all such agreements, to have the full effect, must be put in writing, and be signed by the partios, or their agents. But—

         This case was tried at msiprius, on the 26th of August 1796, before McKean, Chief Justice, and Shippen and Smith, Justices, and there was a verdict for the plaintiff. It appears by the record, that two witnesses were examined.

       Clyde v. Clyde, 1 Yeates 92; Sedam v. Shaffer, 5 W. & S. 529; Meason v. Kaine, 63 Penn. St. 335; s. c. 67 Id. 126; Thompson v. Sheplar, 72 Id. 160.

   By the Court.

— The payment of the consideration-money may, certainly, be proved by parol evidence. The agreement being then executed by one of the parties, is not affected by the act of assembly; and it is settled, that the English statute against frauds and perjuries was never extended to Pennsylvania. The act of assembly does not make a parol agreement for the sale of lands, void ; though it restricts the operation of the agreement, as to the acquisition of an interest in the land, and no title in fee-simple can be derived under it. But, certainly, an action will lie to recover damages for the non-performance of such an agreement.

The objection to the evidence overruled.

      5) Though the decision in this case is perfectly correct, yet the dictum of the court when ruling the question of evidence before them, must be attributed to the hurry of a jury-trial; for no aid from the doctrine of part performance could be necessary, in a case which depended for support, not upon the agreement being taken out of the operation of the act of assembly, by the equity arising from part performance of it, but upon the ground that the agreement was not rendered void by the act.

         Ewing v. Tees, 1 Binn. 460, in which Chief Justice Tilghman says, “in several cases at nisi prius, damages have been recovered on parol contracts for the sale of land.”

       As to the measure of damages, see Ellet v. Paxson, 2 W. & S. 418; Meason v. Kaine, 63 Penn. St. 335; s. c. 67 Id. 126; Bouser v. Cessna, 62 Id. 148; Harris v. Harris, 70 Id. 170. If no expenses have been incurred on the faith of the agreement, only nominal damages are recoverable. McCafferty v. Griswold, 29 Pitts L. J. 269.


text:
    *DECEMBER TERM, 1797.
    Stroud, assignee, &c., v. Lockart et al.

      Mortgage.

    If the purchaser of property knows, at the time of his purchase, of the existence of a mortgage, which has not been recorded according to the act of assembly, the premises will be bound by the mortgage.

      Scire facias on a mortgage. The mortgage had not been recorded, conformable to the act of assembly ; and Lockart had purchased the premises. But, on the trial, the plaintiff proved, that Lockart knew of the existence of the mortgage, at the time of his purchase, and said he would have to pay it, although it was not then recorded.

         See, on this point, Levinz v. Will, 1 Dall 430, and notes; Parker v. Wood, Id. 436.

   By the Court.

— The case is too plain for controversy. The plaintiff must have a verdict; and all the trouble of the jury will be to calculate the interest.

Verdict for the plaintiff.

       And see Speer v. Evans, 47 Penn. St. 141. Actual notice is equivalent to constructive notice by recording. Id. 144; Woodward, C. J.


text:
    Seagrove v. Redman et al.

      Evidence.

    A book of original entries (some of which were made in the plaintiff’s handwriting, and some In that of a clerk), relating to a mercantile transaction in a foreign country, produced and sworn to by the plaintiff, was admitted in evidence.
    The plaintiff resided in the Havana, and was the agent of the defendants in fitting out a privateer for them, during the war. On the trial of this cause, he produced, and swore to the authenticity of, his book of original entries (some of which were made in his own handwriting, and some in the handwriting of a clerk), to prove the disbursements for the privateer.

         s. c. 2 Yeates 254.

   And The Court admitted the evidence, after opposition, upon the principle, that as it related to a mercantile transaction, which took place in a foreign country, a relaxation of the strict rules of the common law was reasonable, just and necessary.


text:
    *DECEMBER TERM, 1798.
    Nicholson’s Lessee v. Wallis.

      Ejectment. — Limitation.
    A decision of the Board of Property was pronounced, upon a caveat, in favor of the defendant, on the 14th of February 1796: a declaration, entitled as of April term 1796, was served by a private individual on the defendant, on the 10th of August 1796 ; and it was entered on the docket of the supreme court, on the 20th of that month; but contrary to expectation, the court had risen on the preceding day, which, of course, then ended the term: Held, that the ejectment was well brought, within the six months allowed by the act of 1792.
    This cause Lad been decided by the board of property, in favor of the defendant, upon a caveat respecting land in Northumberland county, on the 14thof February 1796; but the patent was stayedfor six months, within which time, the party is allowed, by the act of assembly, to enter his suit at common law, in the nature of an appeal. (Act 3d April 1792, § 11, 3 Sm. Laws, 74.) For that purpose, a declaration in ejectment was framed, entitled as of April term 1796 ; it was served by a private hand (not the sheriff), on the defendant, in Philadelphia, on the 10th of August 1796 ; and it was entered on the docket of the supreme court, on Saturday, the 20th of August 1796 : but the court had risen (contrary to the usual practice, and the expectation of the bar) on the preceding day, when, of course, the term ended.
    In April 1797, a rule was obtained, by the defendant, to show cause why the ejectment should not be stricken from the docket ; on the ground, that it was not entered, within the six months allowed by the act of assembly. And upon the argument in chief, at the present term, it was contended, that the cause was not in the possession of the court, until the process was returned (6 T. R. 617); that, in the case of the sheriff, the court might have called for a return, but not in the case of a special agent, employed by the plaintiff to execute a writ (4 T. R. 119); and that a service of the declaration in ejectment upon the defendant, is not an entry of the suit, within the terms or meaning of the law.
    The plaintiffs counsel urged the injustice that would be done, by a mere matter of accident and surprise, if the rising of the court, a day earlier than the usage, should be the ground of quashing the present suit. They further insisted, that the service *of the declaration in ejectment upon the defendant, was a commencement of the suit within six months, according to the spirit and intention of the law; that the declaration was the only process in ejectment (2 Sell. Pr. 164); that it might be served on the tenant himself, in any place ; though, if the service was on a wife or servant, it must be on the premises (2 Cromp. Pr. 165 ; Runn. Eject. 155); that the sheriffs of the several counties were now obliged by law, to serve declarations in ejectment (3 Dali. Laws, 170, § 10); that the return is the certificate of the sheriff, stating what has been done touching the execution of the writ (Compl. Sheriff, 144; Dalt. 162); and that the proceedings of a special bailiff, being recognised by law, as a competent person to serve tbe process in ejectment, must bo as effectual as the proceedings of the sheriff.

       s. c. 2 Yeates 416, reported as Nicholson’s Lessee v. Wallace.

   After consideration, The Court were of opinion, that the ejectment was well brought, within the six months allowed by the act of assembly; and ordered that the rule to show cause be discharged.

Rule discharged.


author:
Shippen, Justice,
     Smith, Justice. McKean, Chief Justice.

text:
    Keppele et al. v. Carr et al. Carr et al. v. Keppele et al.

      Bills of exchange. — Damages.
    The damages on a protested bill belong to the party at whose risk it was remitted.
    A. & B., being indebted to C. & Sons, foreign merchants, delivered a bill of exchange, drawn by one S., and indorsed by A. & B., to 0., one of the firm of C. & Sons, but he refused to remit it on their account and risk: the bill was returned unpaid and protested, and then A. & B. tendered to C. the principal and interest of it, and demanded its restitution, with the protest, but he rejected this oiler, saying, that he would settle it with S.; B. then told C., that they, A. & B. , should consider the bill at the risk of C. & Sons, from that day: C. afterwards entered into an arrangement with S., and took his note for principal, damages and charges, but before the note became due, S. failed : A. & B. sued O. & Sons for the damages included in the note, with interest from its date; and C. & Sons sued A. & B., for the original consideration of the indorsement of the bill: Held, that A. & B. were entitled to their demand, and that their debt to C. & Sons was paid in law, by the conduct of the latter.
    The case was briefly this : Keppele & Zantzinger, Philadelphia merchants, being idebtod to Carr & Sons, English merchants, for goods sold and delivered, bought a bill of exchange from John Swanwick for the amount, drawn in their favor, and indorsed by them; delivered the bill to one of the partners of Carr & Sons, who was in Philadelphia, but who expressly refused to remit it, on the account and risk of his house; and informed Carr & Sons by letters, dated respectively the 20th of May, and 20th of June 1796, “that the bid, when paid, will be in full for merchandise (high charged) to our G. Keppele, by your invoice, dated the 31st of March 1795.” The bill was duly presented and protested for non-acccptance, on the 27th of June, and for non-payment, on the 29th of August 1796 ; and on its being returned with the protest, notice was regularly given to the drawer and indorsers. Keppele & Zantzinger then (about the 5th of November 1796) tendered to Carr the principal and interest of the bill, and demanded restitution of it, with the protest; but Cárr refused to accept the tender, or to deliver up the bill; saying, “ that he would settle the bill himself with Swanwick:” whereupon, Zantzinger declared, “we shall consider the bill at your risk, from this day.” Carr then entered into an arrangement with Swanwick, took his promissory note for principal, damages and charges, and delivered to him the bill and protest. Before the note became due, *1561 Swanwick had failed; and Carr demanded payment from Keppele & Zantzinger, on the footing of the original account for goods sold. On the other hand, Keppele & Zantzinger demanded from Carr, the twenty per cent, damages, included in Swanwick’s note, with interest from the date of the note. And upon these adverse claims, the present actions were instituted, and tried at the same time.
    At the trial of the cause, three grounds were taken in favor of Carr & Sons: 1st. That the language of the letters, written by Keppele & Zantzingei was not meant to retain an interest in the bill of exchange; but to preserve unimpaired the original contract, if the bill was not honored ; or, at most, to protect them, as indorsers, from being liable for damages ; but not to entitle them to receive any. Carr & Sons had a complete power over the bill; they might have cancelled it, after acceptance, for the acceptor’s note; or they might have released it, upon any, or no consideration, to the drawer’s agent in England; the only effect of which would be, to render the bill payment of the preceeding debt, as in Watts v. Willing, 2 Dall. 100. And Chapman v. Steinmetz, 1 Dall. 261, differs from this case; because the suit was there against the drawer of the bill, who was also the original debtor, expressly stipulating, that ho should not be liable for damages ; and here Carr & Sons do not sue Keppele & Zantzinger on the bill, for damages. 2d. That whatever might be the operation of the original contract, the claim of Keppele & Zantzinger to damages was extinguished, when Zantzinger declared, that “ the bill would be considered, for the future, at the risk of Carr & Sons changing essentially the relative responsibility of the parties. 3d. That the suit brought by Keppele & Zantzinger, for the damages, was a disaffirmance of any implied contract, that the bill of exchange was paid or received in satisfaction of the precedent debt; and consequently, Carr & Sons are entitled to recover upon the old account, whatever may be then' responsibility for the principal, as well as the damages of the bill. In that respect, too, Keppele & Zantzinger have chosen to regard them as agents ; and can only be entitled to recover what Carr & Sons received, to wit, Swan-wick’s promissory note.
    In favor of Keppele & Zantzinger, it was urged: 1st. That the remittance of the bill of exchange was, by express stipulation, upon their account, and at their risk ; and the terms of the remittance came, pointedly, within the principle of Watts v. Willing, and Chapman v. Steinmetz. Until the bill was paid, in England; or, in case of a protest, until it was recovered from the drawer here, it was, exclusively, at the risk of Keppele & Zantzinger ; and they, who were exposed to the whole risk, were entitled, in law and equity, to the whole benefit of an indemnity. *2d. That the declaration of Zantzinger does not, either in the intention or the *- expression, amount to a waiver of the claim for damages ; nor can it, in any respect, impair or alter the conditional contract, on which the remittance was made. 3d. That the conduct of Carr & Sons has made the bill of exchange an absolute fund for the payment of the precedent debt; and that debt was eventually extinguished and satisfied, by taking Swanwick’s note : but their conduct creates no right to receive more than the amount of the precedent debt; and consequently, they are liable for the damages in one suit, though they cannot recover upon the account, in the other suit.
   Shippen, Justice,

— The sum in controversy is small; but the principle of the decision is of great and general importance. What is the law, the justice and the usage, upon the subject ? It appears from two cases that have been cited (1 Dall. 261; 2 Ibid. 100), to be the settled law, that where a bill of exchange is not paid and received, in satisfaction of a debt, due from a merchant to his correspondent, it goes at the risk of the debtor ; and the creditor who l’emits it for acceptance- and payment, stands on the footing of an agent only, until the bill is actually paid. Then, in point of justice, it seems but fair, to allow every incidental or casual profit and emolument, to the party who is exposed to all the hazard and inconvenience of the remittance. As to the usage, the jury axe best able to ascertain it from personal experience ; but so far as I have been able to collect information, there appears to be only one opinion among commercial men ; to wit, that he is entitled to the damages, on whose account and risk the bill of exchange is remitted. To disturb this usage, would, obviously, operate very injuriously to the American merchant, in favor of foreign merchants ; but if the usage were not established, or if it were an unreasonable one, oxxr decision would not depend upon considerations of that nature : we should say, fiat Justitia, ruat caelum,!

Let us, then, consider the facts of the present case, under this general view of the law, justice and usage of merchants. The debt was due and payable in London : the cx-editor refused to accept payment here, on account of the rate of exchange : the immediate loss and expense of the remittance fell, therefore, on the debtor, as well as the contingent risk of the bill. The creditor also refused to take the hazard of the remittance to himself; and, in effect, agreed to act as the agent of the debtor, in all that related to the bill of exchange. There is not, in short, the least doubt on this important fact, that the bill was remitted on account of Keppele & Zantzinger, though *ls81 indorsed by them *to Carr & Sons. When the bill returned protested, the debtor demanded it, tendering the amount of principal and interest; but this overture to a payment was peremptorily rejected by Carr; and he assumed the sole management of settling the business with Swan wick. Whether it was settled by a cash payment, or by a promissory note, is not material; the bill being delivered up without the authority or consent of Keppele & Zantzinger; and Carr & Sons becoming, consequently, responsible to them for the full value of their interest in the bill. That interest was the amount of the damages, on the principles which have been suggested ; particularly, because Keppele & Zantzinger defrayed the whole expense, and ran the whole risk of the remittance. Suppose, px'oduee had been shipped to Can & Sons, to be sold on accouixt of the shippers, but the proceeds were to be applied to the payment of their debt, could it be pretended, that the consignees would be entitled to any piofit on the sale ; or that, in case of a loss, it must be borne by them ? No, in that instance, and I think, with a parity of reason, in the instance before the court, Carr & Sons are neither to know profit or loss, in the transaction. It is surely enough for the British merchant to enjoy the fair profit charged upon the goods, which he sells and transmits to his American customers ; without being allowed to specixlate upon the damages on bills of exchange, the usual medium for paying his account, in a way, that enables him to pocket all the gain, and to cast upon them all the loss.

In justice to Carr & Sons, however, it is proper to take notice of another ground, on which their cause has been placed ; the only ground, indeed, that has created any doubt or difference in the minds of the judges. On the 5th of November 1796, when they refused to accept a tender of principal and interest, Keppele & Zantzinger made a declaration, which, at the first view, looked as if they relinquished every pretension to the bill of exchange : “ We shah consider the bill as at your risk, from this day.” This expression, however, cannot, in law, be regarded as constituting a new contract or agreement; for, certainly, there was no mutuality of bargain; no coincidence of proposition and assent. But it may, in point of fact, be regarded as an extinguishment of the conditional terms of the remittance ; as an abandon - ment of all claim upon the bill of exchange ; a fact which the jury must decide. It appears to me, however, that if law, justice and usage had previously vested the right to damages in Keppele & Zantzinger, it is too light, too equivocal, an expression, to be construed into a waiver of that right; particularly, when it may with, at least, equal propriety, be construed to mean, that they should consider Carr & Sons responsible, if Swanwick failed in payment.

On the action by Carr & Sons, against Keppele & Zantzinger, it is unnecessary to detain the jury with any explanatory ^remarks. The account was settled ; and, by the conduct of the plaintiffs, it has been completely paid, in law and justice. [*159

Smith, Justice.

— I concur in the opinion of my venerable brother, as to the second action ; and subscribe, indeed, to all the general principles, which he has stated, in reference to the first. But it is my misfortune to view in a different manner from him, the important transaction of the 5th of November 1796: for whatever may have been the antecedent rights of Keppele & Zantzinger, the conversation of that day, does, in my opinion, essentially change the situation of the parties. The bill was thenceforth entirely at the risk of Carr & Sons ; and if Swanwick had failed, the very next day, before any arrangement for payment, or before any laches in the endeavor to obtain payment, Carr & Sons could never have recovered from Keppele & Zantzinger, either on the original account, or on the indorsement of the bill. The risk of Keppele & Zantzinger being thus at end, all their legal and equitable claim to the damages, on account of risk, must also be extinct.

In an early stage of the transaction, too, I think, there is some fallacy in treating Carr & Sons merely as the agents of their debtor, in relation to the bill of exchange. If they had lost or destroyed it; if, on the protest, the drawer’s friend had paid it in London, for his honor ; or, if Carr & Sons, after an acceptance, had released the acceptor, with or without a consideration ; surely, in none of these instances, could a claim to twenty per cent, damages arise ; and all that Keppele & Zantzinger could insist upon, in law, justice or usage, would be, that the bill, under such circumstances, should be deemed a payment of their debt, notwithstanding the conditional terms of the remittance.

In these sentiments, I am uninfluenced by any consideration of attachment to the American merchant, or of enmity to the British merchant; and I think, they will be found to conform best to the honor of all merchants, which, like the chastity of a female, should be free from suspicion, as well as free from taint.

McKean, Chief Justice.

— Upon the refusal of the tender, in November 1796, Zantzinger declared, that the bill of exchange should be at the risk of Carr & Sons for the future. The meaning of this declaration, I understand to be (at least, it is a reasonable interpretation), that Carr & Sons themselves should be answerable to Keppele & Zantzinger, for the principal, interest and damages, even if Swanwick should become insolvent. Under the view of the case, I concur with my brother Shippen, in all his remarks which he has delivered to the jury.

Ingersoll and Brinton, for Keppele & Zantzinger. Dallas, for Carr & Sons.

Verdict for Keppele & Zantzinger in both actions.

       The Judges differing in opinion, each addressed the jury; but the Chief Justice, on account of indisposition, added only a few words, in affirmance of the sentiments of Shippen, Justice.


text:
    *MARCH TERM, 1799.
    McClay v. Hanna et al.

      Appeal.

    An appeal from an orphans’ court dismissed, because it did not appear that a definitive decree had been pronounced.
    When and how an executor shall be charged with property' conveyed to him on a secret trust, queers ?

    This was an appeal from the Orphans’ Court of Dauphin county, under the following circumstances : John Harris, by his will, dated the 25th of May 1790, proved 2d of August 1791, bequeathed all his personal estate to his sons, David, Robert and James, and his daughters, Mary McClay and Mary Hanna, to be equally divided between them. He also ordered his executors to sell all his lands, not otherwise disposed of by his will, and divide the proceeds as aforesaid. He directed his executors to settle their accounts in the orphans’ court, in one year after his decease, and continue to settle an account annually, until the estate was finally settled.
    In January 1795, a citation was issued at the request of William McClay, one of the executors of John Harris, against David Harris, Robert Harris, John Andrew Hanna, Joseph Work and John McClay, the other executors, to appear at the next orphans’ court for Dauphin county, to make a full disclosure of all effects and estate of the deceased which had come to their hands, possession or knowledge, and settle and abide the order and judgment of the court in the premises. The cause came to a hearing in the orphans’ court, in September 1795 ; when a motion was made by McClay’s counsel, that Robert Harris and John A. Hanna should answer on oath, to a charge of having received money for the sale of sundry lots, which had been conveyed to them by the testator, by absolute deed, on a secret trust to be accountable for the proceeds of the sales ; and that they should bring the said proceeds into their administration account, and charge themselves therewith. The Court determined: — 1st. That the said Harris and Hanna, should not be obliged to answer on their oath to the said charge: and 2d. That the *1611 P-ainti® should ’’-not be allowed to produce evidence, to substantiate the truth of his charge against the said John A. Hanna ; but that the account of the said Harris and Hanna, as then exhibited to the court, should be received and passed. The plaintiff appealed from this judgment; and the cause came up on the appeal.

      After argument, by W. Tilghmcm and Dallas, for the appellant; and by Ingersoll, for the appellees,
   The Court dismissed the appeal, because it did not appear, that the orphans’ court had pronounced a definitive decree.


text:
    Ewalt’s Lessee v. Highlands.

      Settlement.

    Pergonal residence must accompany every settlement, on which a survey can be regularly made, unless such danger exists, as would prevent a man of reasonable firmness from remaining on the land; and even then, the animus residondi must appear: deadening an acre or two of timber, planting a few peach-stones, apple-seeds and potatoes, can never be circumstances amounting to a settlement, though a cabin should also be put up, if the party resides at a distance, and no tenant actually occupies the land.

    Ejectment for 400 acres of land at Gerty’s Run, across the Allegheny, the plaintiff claiming under settlement and survey. From the evidence, it appeared, that on the 30th of April 1792, the lessor of the plaintiff passed the Allegheny, with two hands, to make an improvement; that they dead ened about one acre of wood, returned, and about two weeks afterwards, went over again, and deadened a little more wood; that a cabin was erected, with a clap-board roof, eight feet square, and logs cut out for a door; that a few peach-stones, apple-seeds and potatoes were planted; but no other improvements were made ; and neither the lessor of the plaintiff, nor any tenant for him, resided on the land. On the 9th of April 1794, a survey was made by Jonathan Leet, the deputy-survey or of the district, under this settlement. On the 10th of Feruary 1796, Ewalt leased the land to P. Smith, who went over the Allegheny, kindled a fire in the cabin, stayed there an hour, and then removed; but Ewalt and his family constantly resided on the east side of the river; while, on the other hand, the defendant and his family lived for three years on the premises.
    I. When Leet’s survey was offered in evidence, the defendant’s counsel objected; but it was admitted by The Oouet, upon the ground, “ that in cases of title, under settlement and improvement of lands, north and west of the rivers Ohio and Allegheny and Conewango creek, the deputy-surveyor must, in the first instance, judge of the right; though subject to the opinion of the court and jury.”
    II. In delivering the charge, the following sentiments were expressed.

         Tried at Pittsburgh, May 1799, before Yeates and Smith, Justices.

      5) The following cases are among the earliest and most interesting on this subject: Commonwealth v. Coxe, post, p. 170; Morris’s Lessee v. Neighman, post, p. 209; s. c. 2 Yeates, 450; McLaughlin’s Lessee v. Dawson, post, p. 221; s. c. 3 Yeates, 61; Balfour’s Lessee v. Meade, post, p. 363; s. c. 1 W. C. C. 18; Huidekoper’s Lessee v. Douglass, post, p. 392; s. c. 3 Cr. 1, and 1 W. C. C. 258; s. p. Lessee of Huidekoper v. Burrus, Id. 109; Huidekoper v. McClean, Id. 136.

   By the Court.

— It is now the province and the duty of the court and

jury to decide, whether the survey in question was properly made, under the act of the 3d of April 1792. (3 Dall. Laws, 209.) The act itself has laid down no general rule ^ascertaining what land and extent of settle- p. „„ ment and improvement will warrant a survey ; nor is it the intention *- of the court, upon the present occasion, to lay down any general rule upon the subject. It may, however, be observed, that personal residence must accompany any settlement, on which a survey can be regurlarly made; unless such danger exists, as would prevent a man of reasonable firmness from remaining on the land ; and even then, the animus residendi must appear. Again, though we agree, that what constitutes a settlement will essentially depend on the circumstances of each case ; we may state, negatively, that deadening an acre or two of timber, planting a few peach-stones, a few apple-seeds, or a few grains of corn, can never be deemed circumstances, amounting in themselves, to a settlement, in any case, though a cabin should also be put up, if the party resides at a distance, and no tenant actually occupies the land. If these can give no legal preference, much less will it be deemed a case of preference, contemplated by the act of assembly, that a man has set his foot, or his heart, on a tract, and claims it as his own. It is hardly necessary to add, that we do not think the acts of the lessor of the plaintiff, in the present case, constituted such an actual settlement, as authorized a survey ; and consequently, he has no title to recover the land.

Brackenridge, for the plaintiff. Woods and Collins, for the defendant.

The plaintiff’s counsel, finding the opinion of the Court thus decidedly against him, suffered a nonsuit.