text:
    *JANUARY SESSION, 1804.
    Present — Chew, President of the Court, and Rush, Riddle, Henry and Roberts, Presidents of the Common Pleas.
    Lea, executrix, et al., v. Yard. Hazlehurst et al. v. Dallas, Secretary of the Commonwealth.
    An auctioneer’s bond is a security for his private customers, as well as for the payment of duties to the government.

    Yard v. Lea, 8 Yeates 335, and Dallas v. Ohaloner’s executors, 3 Dali. 500, affirmed.
    Error from the Supreme Court of Pennsylvania. These actions depended chiefly on the same facts and principles; and were argued together, both in the supreme court, and in this court. The facts were these :
    John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1*791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000Í., with two sureties, namely, Leonard Dorsey and Thomas Lea, who are both since dead. Richard S. Footman was also appointed an auctioneer, on the 9lh of June 1*795 ; and gave a similar bond, with Isaac Hazelhurst and John D. Coxe, as his sureties. The conditions of the bonds were of the following tenor :
    In Chaloner’s case : “ Whereas, the above-bounden John Chaloner was, on the first instant, re-appointed auctioneer, with authority to make sales by auction, at any place or places within the *city of Philadelphia, the * district of Southwark, or the township of the Northern Liberties, or Moyamensing, according to law : Now, the condition of this obligation is such, that if the said John Chaloner shall well and faithfully execute the aforesaid office of auctioneer, according to law; and shall, from time to time, well and truly account for all public moneys which shall come into his hands, and pay the same into the treasury of the state, agreeable to the directions of the several acts of assembly of this commonwealth which relate to auctions and auctioneers ; then the above obligation to be void, and of none effect, or to be and remain in full force and virtue.”
    In Footman’s case : “Whereas, by a commission bearing even date with the above-written obligation, the above-bounden R. S. Footman has been duly appointed one of the public auctioneers in and for the city of Philadelphia : Now, the condition of this obligation is such, that if the above-bounden R. S. Footman shall well and faithfully discharge and perform all the duties of an auctioneer, and in all things truly and fully comply with, and execute the laws relating to the office of auctioneer, then the above-written obligation to be void, otherwise, to be and remain in full force and virtue.”
    While these bonds, respectively, were in force, Mr. James Yard delivered to Chaloner, as public auctioneer, a considerable quantity of goods to be sold for him. The goods were, accordingly, sold ; but Chaloner retained $5011 of the proceeds, which he never paid over, nor accounted for, to Mr. Yard. And at the same time, he was considerably indebted to the state, for duties received upon sales at auction. Mrs. Gapper, in like manner, delivered to Footman, as a public auctioneer, a quantity of goods to be sold for her ; which were, accordingly, sold; but the proceeds never accounted for; although Footman had punctually paid into the state treasury, all the duties which he had collected.
    Chaloner being dead, an action was brought upon his bond, against his executors, &e., for the use of the commonwealth, in which judgment was rendered, and the amount of the duties (being less than the penalty) was recovered,  Mr. Yard, thereupon, .issued a scire facias, returnable to December term 1798, against the executors of Thomas Lea, one of Chaloner’s sureties; while Mrs. Gapper instituted a suit upon Footman’s bond, in the name of the secretary of the commonwealth, for her use. Cases, comprising the foregoing facts (reddenda singula singulis) were filed in the actions, respectively, with an agreement to consider them as special verdicts, for the purpose of a writ of error: and the general question submitted to the court was, whether an auctioneer’s bond is a security for his private customers, as well as for the payment of the duties to the state ?
    * After argument, the opinion of the supreme court, was delivered, seriatim, on the 24th of March 1802, by Smith and Bbackenbidg-e, Justices (Chief Justice Shippen, and Yeates, Justice, declining to take a part in the decision, on account of their relationship to the defendants), conformable to which, judgment was entered for the plaintiff, in both suits:  And writs of error were brought upon these judgments.

      *The case was argued on the 16th, 17th, 18th and 19th of January 1804, by M. Levy, JE. Tilghman and Lngersoll, for the plaintiffs in error, and by Lewis, liawle, S. Levy and Dallas, for the defendants in error.
    And in the course of the argument, both sides referred to the following sections of the several acts of the general assembly relative to auctions.
    1. An act was passed on the 14th of February 1729 (1 State Laws, 164, Gall, edit.), “for regulating peddlers, vendues, &c.” The preamble recites, “whereas, of late, many idle and vagrant persons are come into this jjrovince, and under pretence of being hawkers or peddlers, and carrying goods, from house to house, within this province, to sell, have greatly imposed upon many people, as well in the quality as in the price of the goods, and under color of selling their wares and merchandises, have entered into the houses of many honest and sober people, in the absence of the owner or owners of the said houses, and committed felonies and other misdemeanors, to the great prejudice of the inhabitants of this province. For remedying of which inconveniences, and preventing such evil practices, and to the intent that no persons may be admitted to follow the business of hawkers and peddlers, within this province, but persons of known honesty and civil behavior,” &e., the 6th section of the act provided, “ That no person, or persons whatsoever, except as hereinafter is excepted, shall, after the publication of this act, take upon him, her or themselves, to sell or expose to sale, by way of vendue or auction, any wares, goods or merchandises, within the city of Philadelphia, unless such person or persons shall be recommended by the mayor, recorder and aldermen of the said city of Philadelphia, in their open sessions, to the governor of this province; and shall have given security to'the mayor of the said city, for the time being, for the use of the corporation, in such sum as shall be agreed upon by the said mayor, &c., provided the same do not exceed the sum 500i., for his or their honest and due Execution of the office of the vendue-master, within the city of Philadelphia, and for the due observation of the ordinances of the L said city, touching the regulating vendues or public sales, or auctions, within the same.”
    2. An act was passed on the 26th of November 1779 (2 State Laws, 245, McKean’s edit.), “for the effectual suppression of public auctions and vendues, áre.,” to expire at the termination of the war. It provides for the appointment of a single “ auctioneer of the city of Philadelphia and the 9th section declares, “ that the said auctioneer shall, before he enters upon the duties of his office, become bound with two sufficient sureties, unto the president of the supreme executive council of this state, in the sum of 20,000i., conditioned for the faithful performance of the duties required of him, and for the honest and just satisfaction and payment of his employers, and every one of them. And besides the usual attestation required of the officers of this state by law, shall take an oath that he will, to the best of his skill and abilities, faithfully perform and execute the duties required of him by this act.”
    3. An act was passed on the 23d of September 1780 (2 State Laws, 406, McKean’s edit.), “ to alter and amend,” the preceding act; by the 2d section of which, the appointment of three auctioneers is authorized, “ who shall continue for and during the will and pleasure of president, &e., and shall give bond to the president and his successors, with two sufficient sureties, in the sum of 20,000i. for the faithful discharge of their duties, and for well and truly per ■ forming the terms and payments in and by this act directed and required :* by the third section, it is provided, that the said auctioneers shall have an exclusive right to sell by public vendue, “ rendering and paying to the state treasurer, for the use of the commonwealth, one per centum, of the gross amount of the sales, so by him or them made as aforesaid, in manner following, that is to say — that each and every of the said auctioneers, shall once in every three months, render an account, upon oath, to the said treasurer, &c., of all the effects and property by him sold, at any time before the said time of rendering the same account, and since his last settlement, and shall then immediately pay to the same treasurer the full amount of the said one pound in the hundred pounds upon the same account. And upon any failure in rendering the same account, upon oath, or of payment of the said sum of one per centum, any auctioneer so failing or neglecting, shall be discharged from his place, and the said bond put immediately in suit:” And by the 8th section, it is provided, that the fees or recompense of the auctioneers, “ for selling at public auction, collecting the money, and paying over the same, without loss or waste, shall be, &c.,” a per-centage, more or less, according to the nature of the specified articles.
    *4. An act was passed on the 13th of April 1782 (2 Dall. Laws, 55), by Avhich the compensation of the auctioneers was reduced, “for their expenses and trouble in selling any property at public auction, collecting the money and paying over the same without loss; an additional one per centum was charged on the gross sales, for the use of the commonwealth, to be accounted for and paid over, as the preceding law directs, under the penalty therein mentioned; and it was declared, “ that the several bonds given by the said auctioneers to the president, for the faithful performance of the duties, of them required by the aforesaid act, shall be a security for the payment of the one per centum imposed by this act.”
    5. An act was passed on the 9th of December 1783 (2 Dall. Laws, 169), by which the previous aots (with certain exceptions) were made perpetual; auctioneers were prohibited from buying, at public sales, on their own account; and it was repeated, that if an auctioneer failed or neglected to account, he should be discharged from his place, and his bond put in suit.
    6. An act was passed on the 19th of March 1789 (2 Dall. Laws, 680), by which the appointment of an auctioneer for Moyamensing was authorized, who shonld give bond, with two sufficient sureties, in the sum of 2000Í. “ for the faithful discharge of his duty, and for well and truly performing the terms and payments in and by this act, and the several acts of general assembly, to which this is a supplement, directed and required.”
    7. An act was passed on the 27th of March 1790 (2 Dall. Laws, 777), reducing the duty on sales to one per cent., and authorizing the appointment of two additional auctioneers, who shall give bond “with two or more sufficient sureties, in the sum of 20001., conditioned for the faithful discharge of their and every of their respective duties, and for well and truly performing the terms and payments in and by this act, and the several acts of general assembly to which this is a supplement, directed and required.”
    8. An act was passed on the 26th of February 1791 (3 Dall. Laws, 91), by which the restriction upon the auctioneers to sell goods only within the districts, for which they were respectively appointed, was repealed and annulled.

    For the plaintiff in error.
    — 1st. It is proper to premise, that the present suits are instituted against sureties, after the principals are insolvent and *1011 ^ea<^ -^11^ independent of any peculiar hardship *in this ease, it J is a rule of law, as well as of equity, that the responsibility of a surety shall never be extended beyond the strict letter of his contract. (2 T. R. 370; 2 Wils. 379; 4 Ves. jr. 788.) Nor is the contract to be regarded in the same rigor, as if it had been expressed by the parties themselves, in their own terms; instead of being prescribed by a legislative act. In such a case, the meaning of the terms employed by the legislature should be unequivocal, plain and clear, before it is adopted as the meaning of the surety, to bind him in a manner so'injurious and oppressive. 2d. The acts of the assembly of the years 1780, 1782, 1783, 1789 and 1790 were in force, when these auctioneers were appointed; they direct that bonds shall be given, and they prescribe the terms of the condition of the bonds; but they do not expressly, in any instance, declare the bonds to be a security for private customers. From the year 1729, until the 26th of November 1779, although several acts were in force to regulate sales at public vendue, there is, likewise, no express provision to be found, declaring the bond of an auctioneer to be for the use of the individuals who employed him. Then, the only act, in the whole of the system, with all its successive modifications, by which the bond is expressly appropriated to the protection of an injured customer, is the act of the 26th of November 1779. 3d. The act of the 26th of November 1'779, by adding to a px-ovision, “for the faithful performance of the duties required of the axxctioneex-,” a provision “ for the honest and just satisfaction and payment of his employers, and every one of them;” shows it to be the sense of the legislature, that the expressions of the former would not embrace the objects of the latter provision. 4th. The duration of the act of the 26th of November 1779, was limited, by its own terms, to the continuance of the war, and the limitation, of course, affected the supplemental acts of 1780 and 1782; but the act of the 9th of December 1783, rendered the supplements perpetual, and so much of the act of 1779, as was not thereby altered or supplied. Then, it is to be considered, that the act of 1780, made expressly “to alter and amend” the act of 1779, not only incx-eases the number of auctioneers, but px-escribes a new condition to be annexed to their bonds, to wit, “for the faithful dischax-ge of their duties, and for. well and truly perfoi-ming the tei-ms and payments in and by this act directed and required,” totally omitting the passage in the condition before prescribed, “ for the honest and just satisfaction and payment of the employers ” of the auctioneer. 5th. The terms of the condition prescribed in the act of 1780, supplied and superseded the tei-ms of the condition in the act of 1779; they do not mean the same thing, and particulax-ly, they do not both embrace the rights of the individual employers, as well as the rights of the public. Thus, the duties referred to by the act of 1780, are the duty of keeping a regular x-egister of horses, *and of accounting to the state; and of acting fairly between buyer and seller; while “the tei-ms and payments” l-equired to be *- performed, are those which are specifically directed and required “in and by this act;” and the act nowhere directs or x-equix-es a payment to the employers, but only to the public. It is true, that the act of 1780, as well as the act of 1779, declares that, “ for selling at public auction, collecting the money, and paying over the same, without loss or waste,” the auctioneer shall be allowed a per-centage; but there is in this provision no duty prescribed, no tei-ms and payments stipulated; nothing that relates to asui-ety, or can affect him: it is mex-ely an enumeration of the services to be performed by the agent, ixx consideration of the compensation whxch the law allows him to demand and receive. 6th.. The legislative intention to limit the opex-ation of the bond to a govex-nmental security, may be fairly inferred from a variety of considex-ations: the smallness of the penalty; the change of expression, to exclude as it were the opposite constx-uction, when a public duty was first imposed by the act of 1780; the increase of the number of auctioneers, which gave individuals a selection, and so far rendered a provision in their favor unnecessary; the express provision uniformly made for individuals by the legislature in every other case of an official bond; and finally, the general understanding of the bar, expressed in various opinions given upon the case of Major Boyd. (3 Dali. Laws, 181.) 7th. It is not a sufficient answer to these arguments, that auctioneers are public agents, possessing a monopoly of the sales at public vendue, to whom private citizens are obliged to resort; and therefore, ought to be protected. In the first place, the regulations of the acts, though they compel individuals to employ the public auctioneer, do not prevent a special contract between them, as to the collection of moneys, nor even as to the rate of compensation. Besides, it is not true, that the acts expressly empowered the auctioneers alone to collect the proceeds of sales; and the general rule of law is well established, that where the dissenting principal declares himself, a vendee cannot be discharged by a payment to the agent. (2 Ves. 221.) Even in the case of a compulsive agency, if the employer pays the duty and commissions to the auctioneer, he may sue the vendee for the purchase money. (7 T. R. 359.) And in some cases, a contrary doctrine would be iniquitous ; for, suppose the auctioneer becomes bankrupt, before the money is collected; may his assignees collect the money, and put the employer to a dividend ? Or, suppose the sales are made for approved notes, at distant periods, shall it be deemed right and lawful, that the auctioneer shall take the notes, and hold them, or use them, at the risk of the employer, until the credit is expired; and possibly until the money is recovered upon them in an action at law ?
    *For the defendants in error.
    — 1st. The general question is, whether the official bond of an auctioneer is a security for his fidelity towards individuals, as well as towards the public ? On this question, whatever is the meaning of the legislature in the acts of assembly, is the meaning of the parties in the bond. Both principal and surety are bound, according to that meaning; and beyond it, neither of them is bound. The only distinction here between the principal and surety is, that the principal may be liable, either at common law, or on the bond; but the surety can only be liable on the bond. (2 T. R. 105; 1 H. Black. 186.) On the true construction of the bond, however, the surety, as well as the principal, would be liable, even beyond the direct letter (though the present case requires it not). 4 Bro. P. C. 87. And the obiter dieta of Butler, in 2 T. R. 370, must be explained by the subject-matter; while the authority of 2 Wils. 379, yields to the contrary decision in 1 T. R. 291. 2d. Under every modification of the office, duties and bonds of auctioneers, the legislature meant to protect the customers that employed them, as well as the government that appointed them. On principle, it must be meant, since the legislature takes from private individuals the right of choosing their own agents; and from analogy to other public officers, it must be meant, for there is not a single instance in the whole of our code, where an official bond is not, either by express words, or the established, practical construction, held to afford remedy and relief to injured private persons ; as in the cases of sheriffs, coroners, administrators, &c. Cowp. 140 (against Ambl. 183); 3 Atk. 248; 2 Inst. 650; Vaugh. 334; 12 Co. 30 b. But the same meaning is clearly and necessarily derived from *he words of the legislature, in the acts under immediate discussion. Thus, the act of 1729 was passed, because street vendues, &e., had become a nuisance ; no revenue, or other public object, than to insure fair-dealing, was contemplated ; and the condition of the bond was simply “ for the honest and due execution of the office.” No other honesty or duty could be in view here, than honesty and duty towards the customers of the auctioneer. True, the bond was given for the use of the corporation, and the customers had no personal remedy upon it; but still it operated as a penalty for their protection ; and if the auctioneer was dishonest, or failed in any way to do his duty, the forfeiture was absolute under the act of 1729 ; while it is now contended, that under the act of 1780, so far as security is concerned, if he is honest to the public, there can be no forfeiture of the official bond, let him be ever so fraudulent towards the private citizen. The act of 1779 confirms expressly the legislative meaning to be in favor of giving a security to the employers of auctioneers, both in the terms of the condition of the bond, and the oath of the auctioneer ; and although the phraseology is changed, the substance of the provisions remain the same ; “ an *honest and due r*, Q. execution of the office,” under the act of 1729, certainly including *- “ an honest and just satisfaction and payment of the employers,” as well as a performance of the general duties of the office. But in the act of 1779, “ the use for the corporation,” is discontinued; no other use of the official bond is declared ; the penalty, reduced by the scale of depreciation, is nearly the same as before ; certain duties are prescribed in the 9th and 10th sections (such as a search for offenders, and collecting and paying over the proceeds of sales); but even under this act, no duty is contemplated to be raised on sales at auction. Then, the essential inquiry rests on the act of 1780, which, as well as all the subsequent acts, passed, not to repeal, but to alter, amend, supply or enlarge the provisions of the act of 1779 ; and being in pari materia, must be considered together, in order to ascertain the true moaning of the system. The act of 1780 is the first that contemplates a revenue from sales at auction ; but independent of the provision to secure the revenue, it continues, in substance, the provisions to protect the employers ; particularly, making it a duty, on which the right of compensation arises, to collect the proceeds of sales, “and pay over the same, without loss or waste.” But it is urged, that the act of 1780, when it prescribes the condition of the bond, omits entirely the previous stipulation, “ for the honest and just satisfaction and payment of employers;” and claims from auctioneers only “ the faithful discharge of their duties, and well and truly performing the terms and payments, in and by this act directed and required.” The omission suggested was correct; for in the previous act, the stipulation was tautologous and surplusage ; as the duties of the auctioneer (which he was bound to perform) were emphatically to collect the money and make payment to his employers, no revenue being at that time in contemplation. The appointment of the auctioneer fixes his duties, as does the appointment of a sheriff, &c., without specification or detail. Selling, collecting and paying, form the great outline of those duties. The first and second are common both to the state, and to individuals ; and as to the third, it branches into a payment of the tax to the state, and of the purchase-money to the individuals. Besides, “ the terms and payments directed and required in and by this act,” are also to be performed ; and the payment to the employer is required by the act, as well as the payment to the state. In short, the two members of the condition of the present bond, fortifying and sustaining each other, must embrace all the duties, all the obligations, which the laws impose upon an auctioneer, or the meaning will be constrained, and inconsistent with the general import of the words. 3d. But in opposition to the meaning of the legislature thus deduced, every kind of inference is offered, as well from the silence, as the expression of the laws. It is said, that neither principal nor surety are liable to the employer, -* *for a performance of their duty to him ; because the act of 1780, and the subsequent acts, do not say so, expressly, as the act of 1779 did; and because the penalty of the bond is inadequate'to afford an indemnity for the injury to which, we contend, it applies. If, therefore, the words omitted had been retained, the controversy must so far have ceased; and the only question is, whether words equipotent, or even more extensive for the object, are not employed. But as to the second difficulty, it sounds in this absurdity, that because the bond is not sufficient to protect the employer entirely, it shall not protect him at all. Is the sheriff’s bond, is a survey- or’s bond, is every administration bond, found commensurate with the possible delinquency or defalcation ? And is it conceivable, that because a surety is called on for less than the loss, that, therefore, he is to pay nothing ? But the truth is, that the sum is more adequate now, than under the act of 1799, when its application to the relief of the employer is admitted. It is raised from the sealed value of 518i. (on 20,000i., at 38|- for one) to the specie value of 2000Í. The increase of the number of auctioneers, virtually augments the fund for the indemnity of individuals ; the restriction to sell in their respective districts (while in force) limited the quantum of custom of each auctioneer ; and the obligation to account quarterly with the state, under the penalty of an immediate dismission from office, reduced the demand of the state for an indemnity to a mere possibility. Neither the first tax of one per cent., nor its subsequent accumulations, could, under such circumstances, require the protection of a penalty of 2000Í. from six auctioneers. (Park. 273.) Something more must be protected than the revenue ; the general provision of the act of 1713 (1 State Laws, 102, Gall, edit.) gives a ground of exposition from all official bonds ; and when revenue only is meant to be protected ; or the penalty is to operate as a punishment to the delinquent, not as a relief to the injured ; in the English statutes, as well as in the Pennsylvania code, the language of the legislature is appropriate and unequivocal. (19 Geo. III., c. 56, § 7 ; 1 Anstr. 586.) 4th. If arguments ab inconvenienti may avail, what can be more forcible, than the inconvenience which proceeds from the opposite construction, when the auctioneer is regarded as a public agent, invested with the exclusive right to collect the moneys on sales at auction ? The rule is different as to a common-law agency; where there are three voluntary parties, the owner', the agent and the buyer (2 Yes. 221), and the difference is not destroyed, though modified, in the case of an agent del credere. (Bull. N. P. 130; 7 T. R. 539.) Here, however, the licensed auctioneer is not only a legislative agent del credere to the buyer, but the state constitutes a fourth party, giving the law to every part of the transaction, to every degree of the responsibility. The auctioneer is, thus, *1061 a trustee ^01' *state: he, not the owner of the goods, nor the buyer, -* must pay the duties to the state; and he gives the security, not the owner. It naturally follows (and so is the practice), that immediately upon a sale, the auctioneer becomes the debtor to the owner of the goods, as well as to the state. The owner does not know the purchaser, and seldom inquires for him. Tho knowledge, or the inquiry, would be superfluous, as the auctioneer alone possesses the power to collect, as well as to sell: it is a vested right, by operation of law, and not, in its nature, assignable. (2 Dall. 174; 1 II. Black. 81; Willing v. Rowland,

       But it is an universal principle, that where a power is given, a duty arises. The sheriff has a power to execute a capias; and therefore, it is a duty to do it. The coroner has a power to hold inquests; and therefore, it is a duty to hold them.

       Davis v. Commonwealth, 3 Watts 297.

         See 8 Dali. 500.

       I have been favored with a note of what was said by the judges; from which, in substance, may be collected the following principles.
      Smith, Justice. — This is strongly pressed as a case of sureties, against whom an obligation ought never, it is said, to be extended, beyond the strict letter. 2 Oo. 870. But the truth is, that where there is a joint obligation, the law does not, abstractedly, recognise the character of a surety : and after all, sureties must be bound, according to the true construction of the obligation, whatever may be the form of the expression. 1 Bro. Oh. 87.
      The essential question, therefore, is, to what duties does the condition of the bond refer ? It is a general rule, resulting from a view of our whole official system, that where an officer gives a bond for the performance of his duties, it shall operate to protect the individuals who are obliged by the law to resort to his office, as well as the public, by whom he is appointed. From many instances, it is sufficient to mention those of sheriffs, coroners and surveyors. The instance of an auctioneer, independent of the positive provisions of the statute, seems, at least, to be, as much as any other, within the reason, principle and policy of the rule. He is a public agent, with an exclusive authority to sell at vendue. Individuals cannot employ any other agent for the purpose of selling their goods; and it is the uniform practice, to leave to him too the collection of the purchase-money. Indeed, I cannot perceive how the owner of the goods could, consistently with the various provisions of the laws, maintain an action against the vendee for the price, in his own name. I grant, that the general rule is, that he who sells by another, is, in contemplation of law, the seller himself, with the right of action to recover the price; but that the rule applies only, where the owner of the goods may choose his agent, and not where he is obliged to employ the agent of the public. 2 Str. 1182. Inconveniences might easily be suggested, arising from the opposite doctrine. Auctioneers often advance money on goods sent for sale; would it be just, that the owner should still have the power to demand and recover the price from the purchaser ? On a sale, the state acquires a right to the duty, as well as the owner to the purchase-money: shall the owner be allowed to recover the duty, as well as the price; or must the vendee bo exposed to two demands and two suits ? If, then, upon motives of public policy, a public agent is imposed on the citizens for the sale of their goods, nothing but express words would warrant our supposing, that the legislature, while they took a bond to protect the collection of a small revenue, meant to leave unprotected so great an amount of private property.
      The very smallness of the penalty of the bond, has, however, been urged as an argument, to show that it could not be the intention of the legislature, to embrace the interests of individuals, as well as the rights of the state. To this objection, I answer: lit. That, in proportion to the responsibility, the penalty is larger, than in the case of sheriffs’ bonds. 2d. That there are several auctioneers, each giving a bond in the same sum; and the vendor may consider which of them, and his sureties, may be most safely intrusted. 3d. That by the condition of the auctioneers’ bond, the sums collected are to be immediately paid over; whereas, in the case of a sheriff, the moneys levied may be retained for a considerable time. Upon the whole, I think, judgment must be rendered for the plaintiff.
      Beaciceneidqe, Justice. — The act of the 23d of September 1780, is the first that' reserves a per centum for the state, on sales at auction ; but it will not be said, that adding to the duties of the auctioneer diminished the effect of the obligation. Every duty which an auctioneer is bound to perform, is embraced in the terms of the condition ; and paying over the proceeds of the sales to his employers is expressly a duty. The reduction of the penalty of the bond from 20,000£. to 2000Í., might raise a presumption, that when a revenue was contemplated, the revenue only was to be protected; were not that circumstance rebutted, by considering the relative value of money, at the two periods of passing the laws. Then, the auctioneer is a public agent, who must, oe employed to sell goods at public vendue. He is not only the exclusive agent to sell, but the law, obviously, makes him the exclusive agent to collect the amount of the sales; the owner of the goods cannot forbid the payment to the auctioneer, and recover the purchase-money himself. In such a state of things, it is reasonable and just, that the law should protect the private citizens, who are compelled to trust a public agent, in this, as well as in any other instance; and although the penalty is small, it is, in my view, a positive provision to protect the customers of the auctioneer, as well as the revenue of the public. Judgment must be for the plaintiff

       It may be proper, after this recapitulation, to observe, that the conditions of the bonds, in the present cases, were not drawn strictly in the terms of the acts of assein bly; but it was agreed, to argue and decide the general question, independent of any objection that might be made to the form of the binds.

         Willing et al v. Rowland et al., in the supreme court, 1791, before McKean, Chief Justice, and Rush and Bryan, Justices. This was an action of assumpsit, for goods sold ana delivered. The goods were sent by the plaintiffs to the store of John Mease, a licensed auctioneer, and were sold, at public vendue, to the defendants. Mease became, soon afterwards, a bankrupt; and the defendants refused to pay the purchase-money to the piaintiiis, insisting upon a right to set off a debt due to them from the bankrupt. The Court were decidedly of opinion, that the plaintiffs could not maintain the present suit; that, by law, the right of action is vested in the auctioneer ; and that the common-law rule in the case of factor and principal, did not apply to the case of a public auctioneer. A verdict was, thereupon, given in favor of the defendant.

        Bowie and Hallowell (by the latter of whom this note is obligingly furnished), for the plaintiffs, cited Com. Dig., title ‘‘Merchant,” B. 81; 13 Vin. Abr. 9; Roll. Rep. 337; 2 Vern. 638; 3 Bac. 519; 2 Str. 1182; Co. B. p. 236-7. Bradford and McKean, for the defendants, who cited Bull. N. P. 130, 280 ; 12 Mod. 514-5; Molloy 466.

   After deliberation, The Court were unanimously of opinion,- that the inctioneer’s bond was intended, by law, for the benefit of his private eus-omcrs, as well as for securing the duties payable to the government: And therefore, the judgments of the supreme court were affirmed; and the records ■remitted for further proceedings,

       In the case of Dallas v. Hazlehurst, the defendants paid the amount of tho penalty of the bond into the supreme court, to be disposed of as the court should direct Todd, for several creanors who had not brought suits, or whose suits were subsequent in date to Mrs. Gapper s s,ut, asked the opinion of the court, whether the creditors of Footman were not entitlea to share in the fund, pro rata ? Dallas and S. Levy urged, that upon principal and autnority, the creditor first suing was entitled to be first and completely paid, before other creditors were admitted. The Court were clearly of that opinion; and Mrs. Gapper’s debe with interest was, accordingly, satisfied, leaving only the surplus of the fund for other creditors.

       This case was overruled in Girard v. Taggart, 5 S. & R. 19: and for some remarks upos Willing v. Rowland, see Id. 31, 33.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    APRIL TERM, 1790.
    Geyer’s Lessee v. Irwin.

      Privilege.

    A member of the general assembly is privileged from arrest, summons, citation or other civil process, during attendance on his public business, but the benefit of his privilege must be duly claimed at a proper time.

      Semble, that his suits cannot be forced to a trial and decision, while the session of the legislature continues.
    This ejectment, depending in Allegheny county, was marked for trial on the list of causes at nisiprius. The defendant’s attorney, after looking at the papers of the opposite party, confessed judgment.
    But now, Lewis, producing an affidavit of a just and legal defence, moved to set aside the judgment, on the ground, principally, that the defendant was a member of the general assembly, attending his public duty at Philadelphia, at the time of marking the cause for trial, and confessing the judgment. He said, that the attorney had been compelled, either to go to trial, or to confess judgment; and that not being possessed of his client’s proofs, he had preferred the latter course ; but he insisted, that during the session of the legislature, every member was privileged against the necessity of attending to his private suits ; and that, therefore, the cause had been irregularly placed upon the trial list.

      Ingersoll, for the plaintiff,
    denied, that the legislative privilege extended to the present case ; and urged, that even if it was a case of privilege, the attorney had waived it, by omitting to object at the proper time.
   By the Court.

— A member of the general assembly is, undoubtedly, privileged from arrest, summons, citation or other civil process, during his

attendance on the public business confided to him. And we think, that upon principle, his suits cannot be forced to a trial and decision, while the session of the legislature continues.

But every privileged person must, at a proper time, and in a proper man-*1081 ner) claim the oenefit of his privilege. The judges *are not bound, J judicially, to notice a right of privilege, nor to grant it, without a claim. In the present instance, neither the defendant, nor his attorney, suggested the privilege, as an objection to the trial of the cause; and this amounts to a waiver, by which the party is for ever concluded. We are, therefore, unanimously of opinion, that the judgment cannot now be set aside or opened.


author: The Court,

text:
    Carson v. Hood’s executors.

      Verdict.

    If debt be brought against executors, on simple contract, it will be bad on demurrer, but if they plead to issue, they cannot afterwards make the objection.
    After a verdict, it will be presumed, that everything was done at the trial, which was necessary to support the action, unless the contrary appear upon the record.
    Debt. Plea, nil debet. The principal point in this case was, whether debt would lie against executors, on a simple contract of the testator ?

      Bradford, for the plaintiff,
    stated the rule to be, that if the executors demur to the action, they are entitled to judgment; but if they plead to issue, they cannot, afterwards, make the objection; and the following authorities were cited to maintain the distinction. Cro. Eliz. 600, 557; Cro. Car. 187; Cro. Eliz. 121; 1 And. 182; Golds. 106; Leon. 165; Vaugh. 99; 1 Sid. 333; Plowd. 182; Palm. 32; Cro. Eliz. 435, 459; Yelv. 56; 1 Lev 200; 1 Vent. 139; Vaugh. 97.
   The Court,

being unanimously of this opinion, gave judgment for the plaintiff ; having, on a preliminary point, decided, that after a verdict, the will presume everything was done at the trial, which was necessary to support the action, unless the contrary appeared upon the record. 3 Burr.1725; 1729; 1 Wils. 225; 2 Str. 1180.

         The proper title of this case is Carson v. Hood et al., executors of Hood. The action was brought to September term 1788, and at July term 1789, the jury found a verdict for the plaintiff, with liberty to move for a new trial, on this ground, whether the action is supported by the evidence or not ? A rule to show cause why a new trial should not be granted, was obtained by Mr. Lewis, but after argument, the tourt discharged the rule aDd gave judgment as above.


text:
    *SEPTEMBER TERM, 1791.
    Donaldson v. Means.

      Warner of protest.

    If an indorsee of a bill, which has been protested, promises to pay it (although the protest has not been transmitted to him), he is bound by such promise; unless, at the time of making it, some material fact was unknown to him.
    This was an action brought by the indorsee of three bills of exchange, against the indorser. On the trial, it appeared, that the bills were drawn in April 1776, at thirty days’ sight, by Nathaniel Newton, on Wilt So Hobson, of London, in favor of T. Armstrong, and indorsed, successively, by Armstrong, and by Means, the defendant; that the bills were presented, and noted for non-acceptance, on the 24th of March 1777 ; and that they were presented, and protested for non-payment, on the 26th of April 1777.
    The question to be decided, was, whether due notice had been given to the defendant of the protest of the bills; or he had done any act, which amounted to a waiver of notice ?
    On this point, a letter was produced from the plaintiff to his father, dated the 10th of May 1778, advising of the protest, and inquiring where Means resided. It was proved, that the father showed this letter to Means, as soon as possible after it was received, and Means repeatedly promised to remit the amount of the bills ; but the protest was not exhibited to him, and never asked for ; nor was any application made to the drawer, or to the first indorser, for payment. Another letter was produced, dated the 12th of August 1779, written by the defendant, at Philadelphia, to the plaintiff, at St. Eustatius, in which he mentioned, that he had received a letter of the year T776, referring to the protested bills ; expressed a hope that they would soon be paid ; observed, that for want of a protest he had not been able to get payment from the drawer ; but promising, nevertheless, to pay the amount to the plaintiff, whenever it was in his power to make a remittance.
    For the plaintiff \

    it was contended : 1st. That during the war, when con. , tinental money was a tender, the holder of a bill of exchange *should -* not be required to pursue that strict punctuality, which might properly be exacted from him in a time of peace, and when his debt was not liable to be discharged in a depreciated paper currency. (1 Dali. 271.) That notice being in fact received of the dishonored state of the bills, it Avas not necessary in law to produce the bills and the protests ; and that since the letter of August 1779, the plaintiff relied upon the defendant’s new promises of payment. 2d. That even if a protest ought to have been transmitted, yet, as the defendant, with a full knowledge of all the circumstances, has made a new assumption, it is too late for him to take advantage of the omission in that respect. For although want of notice may be considered originally, as tantamount to payment; there are many cases in which the rule does not apply or is dispensed with. As where the drawer of a bil has no assets in the hands of the drawee; or where the drawer himself waives the right and benefit of notice. (1 T. R. 408-9 ; Bull. N. P. 272, 276 ; 2 T. R. 713.) And in the latter case, if he knows the fact, though he is ignorant of the law, he shall be bound by his waiver. (Doct. and Stud. 303.)
    For the defendant.

    Independently of the special promise alleged by the plaintiff, the defendant cannot be charged on the bills of exchange ; for a protest is essential to enable any of the parties to recover against the others ; and it must be exhibited. The law, in this respect, is founded on good sense. By exhibiting the protest, the holder of the bill shows that he looks to the person whom he addresses for payment; and by delivering the protest, upon receiving satisfaction himself, he enables that person to pursue his remedy against those who are ultimately responsible. But, 1st. There is nothing in the letter of August 1779, which can be regarded as an express, unqualified promise. The whole letter must be taken together. It complains of a want of the protesl ; and its general spirit is no more than a declaration, that “although the protest ought to have been sent, as it is presumed to have been received, yet tbe holder shall not be permitted to suffer.” 2d. Even regarding it, however, as a promise, it is not legally binding, if it was made under a mistake. (5 Burr. 2670; 2 T. it. 648; Cowp. 287; 1 P. Wms. 357; 2 Chan. Cas. 154.)

      Coxe, for the plaintiff. E. Tilghman, for the defendant.
   By the Court.

— The law upon the subject is so clear, that the whole case resolves itself into the question of fact, on which the law is to arise. If the proof is satisfaetoiy, that the defendant, under a knowledge of all the circumstances, absolutely promised to pay, he is, incontestably, bound by his promise. But if his engagement was of a conditional nature, that he would pay, when the protest was transmitted : or if any material fact was unknown to him, at the time of making the pi’omise, the verdict should certainly be in his favor.

Verdict for the plaintiff.

       Duryee v. Dennison, 6 Johns. 248 ; Trimble v. Thorne, 16 Id. 152; Meyer v. Hibsher, 47 N. Y. 265. A subsequent promise to pay, by an indorsee, dispenses with proof of presentment and notice, and casts on the defendant the burden of proving that it was made, without knowledge -that he was discharged by the plaintiff’s laches. Loose v. Loose, 36 Penn. St. 538. If made with full knowledge, it is a waiver of notice. Miller v. Hackley, 5 Johns. 875 ; De Wolf v. Murray, 2 Sandf. 166, Or, presumptive proof of demand and notice. Tebbetts v. Dowd, 23 Wend. 379. But the promise to pay must be explicit; it must refer to the particular bill; and be made out by clear and unequivocal evidence. Miller v. Hackley, ut supra. And whether it was made with full knowledge that he was discharged by want of presentment, is a question of fact upon the evidence. Moyer’s Appeal, 87 Penn. St. 129. And a promise to pay, with full knowledge of the omission to make presentment, may be inferred from circumstances. Jameson v. Wolverton, 22 Leg. Int. 293.

       Martin v. Winslow, 2 Mason 241; Thornton v. Stoddert, 1 Cr. C. C. 534; Good v. Sprigg, 2 Id. 172; Gassaway v. Jones, Id. 384; Cram v. Colwell, 8 Johns. 384; Griffin v. Goff, 12 Id. 423; Sice v. Cunningham, 1 Cow. 397; Gawtrey v. Doane, 51 N. Y. 84; s. c. 48 Barb. 148.


text:
    *Little v. Dawson et al., Executors of Jones.

      Assumpsit.

    If services are rendered, merely in expectation of a legacy, without any contract, express or implied, an action cannot be maintained for them.

    Case, for services rendered by Jane Bittle, the plaintiff, to Aquila Jones the testator.

       s. p. Walker’s Estate, 3 Rawle 243; Neal v. Gilmore, 79 Penn. St. 421; Hartman’s Appeal, 3 Grant 271. O’Kane’s Estate, 2 W. N. C. 115. A contract to pay for services, by a legacy, ought to he established by clear proof. Thompson v. Stevens, 71 Penn. St. 161; Pollock v. Ray, 85 Id. 428.

   The Court,

in the charge to the jury, stated, that it was in full proof, that the plaintiff had served the testator, with great diligence, for a period exceeding eleven years, on which two questions arose : 1st. Was she entitled to any compensation ? 2d. Had she received a compensation ? As to the first, it was ruled, that if the services were rendered merely in expectation of a legacy, without any contract, express or implied, but relying, implicitly, on the testator’s generosity, the action could not be maintained. The weight of the evidence, however, is, that he promised to take care of her, though he did not say how ; that at one time he offered to marry her ; and, at another time, he said that he would provide for her as a child. As to the second question, it is merely a matter of fact, on which the jury must decide.

For the plaintiff, Rawle.

For the defendant, Sergeant and Roberts,

who cited 1 Vern. 98; 2 Atk. 251, 409; 2 Str. 728; 1 Dall. 265; 1 Burr. 157; Pract. Reg. 357; 3 Rep. Chan. 64; 2 Str. 910.

Verdict for the plaintiff.

         If one (no matter with what expectations) does services for another, at his request, assumpsit will lie to recover a compensation for them. Roberts ®. Swift, 1 Yeates 209. Although a person serves another from expectation of a legacy, in which he is disappointed, yet if the person for whom the service was done, promises to pay for it, an action can be maintained for the value of such service; whether the promise be made before or after the service was performed. Snyder v. Castor, 4 Yeates 358. Where a solicitor, in expectation of a bounty by will, did not call for payment of a debt, ho was not allowed to set it up afterwards, having been disappointed in that expectation. Alsager v. Rowley (cited by Sir S. Rojiilly, in the case of Platamore v. Staple, Cooper’s Ch. Cas. 252, and reported on another point in 6 Ves. 748).


text:
    *JANUARY TERM, 1792.
    Bradley’s Lessee v. Agnes Bradley.

      New trial.

    Where parol evidence had been allowed to be given of the contents of a deed and of a will, without previous notice to the defendant to produce it, and it appeared, that two of the jury had testified to their brethren, on the question in issue, after the jury had withdrawn, a new trial was granted.
    Ejectment, tried in Dauphin county. The lands in question were once, incontestably, the lands of the defendant; for the plaintiff claimed under her. The plaintiff set up an immediate title by the will of Samuel Bradley, deceased (the husband of the defendant), who devised the premises to him, the contents of the will being proved by the person who drew it; but in order to prove a title in the devisor, parol evidence was also given that the defendant had previously conveyed to him in fee. To rebut this evidence, proof was produced, that the conveyance in fee was executed merely for the purpose of making the devisor a plaintiff in partition; and that, immediately afterwards, that conveyance was destroyed ; and a deed (which was exhibited) made to him for life. The principal question agitated in court was, whether the deed for life was genuine or forged ? But when the jury withdrew, two of them testified to their brethren, that although the defendant had bought the land, yet, the bonds, which she gave for. the purchase-money, were unpaid, when she intermarried with the testator, and that the testator had been obliged to discharge them. On this representation, several of the jury, who were before in favor of the defendant’s title, concurred in finding a verdict for the plaintiff : and a motion was made for a new trial, on the following grounds :

      1. That the verdict was against evidence, and the opinion of the court.
    2. That the jury had misbehaved, by hearing testimony which was not delivered in open court.
    3. That evidence was allowed to be given of the contents of a deed, and of a will, without previous notice to the defendant to produce it.
    *On arguing the motion for a new trial, Ingersoll, for the defendant,
    produced the depositions of two of the jurors, setting forth, p-. 13 ^ that, after the jury had withdrawn, two other jurors had affirmed certain matters of fact, which (though the facts were denied at the time) had induced the deponents to find a verdict for the plaintiff: and also the depositions of two witnesses, contradicting the facts that had been so affirmed. Lewis, for the plaintiff, produced the depositions of six of the jurors, explaining their conduct, and averring, that the whole twelve were of opinion, that another deed, conveying the premises in fee, had been executed.
    After commenting on the evidence, upon the first and second grounds of exception to the verdict, Ingersoll cited the following authorities upon the second ground, to show, that the evidence of the misconduct of the jurors was admissible (Cro. Eliz. 189; Moore 599; 2 Morg. Essay 25; 1 Str. 644; Salk. 647); and the following authorities upon the third ground, to show, that parol evidence of the contents of a deed can only be admitted, after notice to produce the deed itself (2 T. R. 43, 201; 4 Burr. 2489). He also urged, that it was a cause of value ; and in every aspect, merited reconsideration. (1 Dall. 234; 12 Vin. Abr. 336, 347; 12 Mod. 347-8; Doug. 118, 123.)
    For the plaintiff, Lewis observed,
    that the verdict was given on a question of fact, after a full hearing, in a case in which a recovery is not conclusive ; and that the principle which influenced courts to interfere with the province of juries, by setting aside a verdict, did not apply to such a case. He investigated the evidence on the trial; and insisted, that it was not necessary for the plaintiff to produce the deed in fee, but only to establish that it once existed, for no subsequent destruction of it, could revest the estate in the grantor ; that whatever difference of opinion might exist, on other points, the jury were unanimously of opinion, that such a deed was executed ; and it was immaterial to the issue, on the question of title, whether the defendant had paid the purchase-money or not. As to the parol evidence of the will, the copy of one will was produced, and the scrivener who drew the other, besides testifying what passed on the occasion, when the defendant was present, exhibited the original rough notes of the draft. If this evidence was admissible, it was conclusive ; for she knew of the devise to the plaintiff in fee, and she acquiesced in it. It was admissible, without notice to produce the will; because it was not offered to establish a title under the will, but to px-ove contemporaneous conversations and actions of the parties, fx-om which the fact of an existing conveyance in fee, to the testatox-, might be inferred. The general rule, however, is conceded, that in order to introduce parol evidence of the contents of a deed, its existence and loss must be proved ; or' proof must be given that it was in the possession of the opposite party, who refused, *after reasonable notice, to produce it. But the evidence, in the present case, was not offered to prove the contents of a deed in the defendant’s possession; but the contents of a deed, which she had actually destroyed. The reason of the rule ceasing, the rule itself must cease. The only remaining topic for remark, respects the misconduct of the jurors ; upon which, there is an essential variance in the evidence. But it is enough to say, that if the jury did misbehave, the proof of the fact, in order to affect themselves, or their verdict, must proceed from another quarter: it cannot be received on their own depositions. (1 T. R. 11.)

      Ingersoll, in reply.
    — The motion for a new trial is as proper, and as much countenanced, in ejectments, as in any other suits. (4 Burr. 2221.) If a deed, given for a special purpose, be afterwards cancelled, and a subsequent deed is accepted by the grantee, for a less estate, the destruction of the first deed will operate .as a revestment. Whether the deed in fee was given for a special purpose, constitutes the great inquiry in the present cause; and the establishment of the fact will be decisive, one way or the other. Nothing can fairly be inferred, from the supposed acquiescence of the defendant in the devise; for the devise does not specify the land in question ; but includes it, if it is included, in a general sweeping clause, disposing of all his real and personal estate. The rule, as to giving the contents of deeds in evidence, is not susceptible of the qualifications suggested for the plaintiff ; nor was there any idea, at the trial, that the deed was destroyed, though it was said to be secreted. As to the mode of proving the misconduct of a jury, it must be conceded, that the courts have varied in their opinions and practice. How far jurors should be permitted to accuse themselves of a high misdemeanor, is a doubt. Tet, in 3 T. R., a witness, who had received a bribe, was permitted to prove the act of corrupting him against the defendant; because, the necessity of the case required it. A similar necessity seems to furnish the same law, in cases like the present. In Cowperthwaite v. Jones (2 Dall. 55), the jury settled the damages by a mesne form, taken from a calculation of the several sums, which the jurors, individually, set down ; and on a motion for a new trial, the affidavits of the jurors, proving the fact, were read, and considered by the court. That the matters stated were immaterial to the issue, cannot surely avail • the plaintiff ; when it is recollected, that they had a decisive effect against the defendant; and .that they were false.
   After advisement, The Court were clearly of opinion, that’a new trial ought to be granted.

Rule for a new trial absolute,

         In Cluggage v. Swan, 4 Binn. 157, Judge Yeates says, “This case is erroneously reported; I was of counsel with the plaintiff, on the trial, and the late Mr. Bradford, with the defendant. Neither of us took any part in the decision of the motion for a new trial. McKean, Chief Justice, was of opinion, that a new trial should bo granted; but Judge SnippEN thought differently. The plaintiff obtained judgment on his verdict, the court ‘ being divided in opinion,’ and it is thus entered upon the record. It is true, that the affidavits of two of the jurors, stating that two others of the jury had affirmed certain matters of fact, which had induced them to find a verdict for the plaintiff, were read in support of the motion; and also, the depositions of two witnesses contradicting the facts supposed to have been so affirmed; and that the affidavits of six other jurors were read, showing the grounds on which the whole twelve had found their verdict. But it is not usual, when a motion is made for a new trial, to object to the court’s receiving evidence of the facts on which it is founded. The common course is, to .lay the facts before the court, leaving it to them to judge of their legal operation. The plaintiff’s counsel, in that case, went fully into the conduct of the jury, as well as the words of the two parties. They had no reason to fear the effect of the affidavits of the two jurors, while they had more weighty evidence to repel the facts sworn to, and fully explain the conduct of the whole jury. Certain it is, that nothing dropped from either of the members of the court, respecting the conduct of the jury; their difference of opinion rested in a comparison of the conflicting notes.”

       It is settled, that the testimony of the jurors themselves is not admissible, to impeach their verdict, on the ground of their own misconduct. Oluggage v. Swan, 4 Binn. 150; White v. White, 5 Rawle 61; Willing v. Swarey, 1 Bro. 123; Commonwealth v. Humes, 38 Leg. Int. 94. A juror cannot be examined as to what took place m the jury-room. Norton v. Breitenbach, 1 Pears. 467. But he may testify as to the misconduct of one of the parties to the suit. Ritchie v. Holbrooke, 7 S. & R. 458; Hutchinson v. Sandt, 4 Rawle 240; Thomas v. Chapman, 45 Barb, 98.


text:
    Smith v. Brodhead’s Executors.

      Feme covert.

    A ferae covert gare bond to pay a debt of her husband; she was seised of a separate estate under a deed of settlement, with power to make a will; she did make a will, and in it directed the payment of her debts: Qucere. Whether her estate, in the bands of her executors, was liable to pay the amount of the bond ?
    For the plaintiff,

    the case was discussed on several grounds: 1st. That a court of chancery would give relief upon the bond. 2d. That to prevent a failure of justice, the courts of Pennsylvania will amplify their jurisdiction, upon principles of equity. 3d. That the will of the testatrix, directing the payment of debts, would make the bond a charge on the executors as a debt in equity. And the following authorities were cited to show the principle, on which a court of equity would interpose ; and the extent to which the courts of Pennsylvania had exeroised an equitable jurisdiction. (1 Ves. 517, 163; Prec. Ch. 328; Gilb. Eq. 83; 2 Ves. 193; Bro. Ch. 20; 2 Atk. 68; 1 T. R. 5; Pow. on Cont. 89; 1 Dall. 213-4, 339 — 40; Eq. Rep. Gilb. 84; 1 Dall. 17, 72, 428; 2 Vern. 225; Doug. 53; Cowp. 201-4.) The executors being bound to pursue the directions of the will, the devisee ought not to be permitted to resist it.
   This cause was tried at Berks nisi prius, in October 1791, when the jury found the following special verdict:

“The jury find, that in the year 1785, the plaintiff sold a tract of land to Daniel Brodhead, Esq. (the husband of Rebecca Brodhead, the defendant’s testatrix), for the sum of 500?.; that the land has since been sold, by execution, after the death of Rebecca Brodhead, the testatrix, for the proper debt of the said Daniel; that 150?. of the purchase-money was paid in hand, and the said Rebecca gave six bonds for the payment of the residue, in annual instalments ; that the said Rebecca, at the time of executing the bonds, was a feme covert, living with her husband, and continued so to do, until her death; that she was seised of a separate estate, under a deed of settlement, with power, inter alia, to make a will; that by her last will, duly proved, she appointed the defendant her executor, and inter alia, directed the payment of her debts ; that two of the bonds were duly paid in the lifetime of the said Rebecca; and the present action is brought upon another of the bonds.
“ If upon the above case, the court should be of opinion, that the plaintiff is entitled to recover, the jury find for the plaintiff in this cause 60?. debt, 12?. 12s. damages, and six pence costs: otherwise, they find for the defendant.”

The general question was, whether the bond of a feme covert bound her estate, in the hands of her executors, under the circumstances stated in the special verdict ?

For the defendant.

— A court of chancery would not do that for the plaintiff, which would be the consequence of a general judgment in his favor. _ The wife’s engagements have never *been satisfied in equity, beyond -I her personal estate, and the rents and issues of her real estate ; but a general judgment, in Pennsylvania, would bind the real estate absolutely ; so that it might be taken in execution and sold. If, indeed, this were a couit of equity, the defendant might make many matters appear to rebut the plaintiff’s equity, which it is too late to urge on a special verdict. And this court, as a court of common law, will never consider bonds as appointments, when the party could not legally enter into a bond. (Norton v. Tur ville, 2 P. Wins. 145; 1 Bro. Ch. 16.)

Cur adv. vutt.

       The reporter has not been able to trace the decision of this cause.


text:
    Commonwealth v. Dillon.

      Confession of prisoner.

    A boy, about twelve years old, indicted for arson, in burning some stables containing hay, &e., had made a formal, and, to all appearance, voluntary confession to the mayor of the city of Philadelphia, which was repeated at subsequent periods: previously, however, he had been visited by several persons, who represented to him the enormity of his crime, and that a confession would excite public compassion, and probably be the means of obtaining his pardon, adding that they would be his friends, while a contrary course, in case of his conviction, would leave him without hope; the inspectors of the prison, too, took him into the dungeon, and said, that he would be confined in it, dark and cold, without food, unless he made 'a full disclosure, which, if he did make, he should be well accommodated, and might expect pity and favor: Held, that this confession was admissible in evidence, and that the point for consideration was, whether the prisoner had falsely declared himself guilty of a capital offence.

    The prisoner (a boy about twelve years old) was indicted for arson, in burning several stables, containing hay, &c. He was examined before the mayor of the city of Philadelphia, on the 20th of December 1791, and then confessed the commission of the offences, with which he was charged. But as his own confession was the principal evidence (indeed, there was no other positive evidence) against him, his counsel insisted, that it was obtained under such duress, accompanied with threats and promises, as destroyed its legal credit and validity. The evidence on that point was, substantially, as follows:

      On the 18th of December, the prisoner was committed to the jail of Philadelphia, and the next day was taken before the mayor; but at that time, he made no confession. On the 18th and 19th of December, he was visited and interrogated by several respectable citizens, who represented to him the enormity of the crime ; urged a free, open and candid confession, which would so excite public compassion as probably, to be the means of obtaining a pardon; while a contrary course of conduct would leave him, in case of a conviction, without hope : and they added, that they would themselves stand his friends, if he would confess. The inspectors of the prison endeavored, likewise, to obtain from him a discovery of his offences and of his accomplices. They carried him into the dungeon ; they displayed it in all its gloom and horror; they said, that he would be confined in it, dark, cold and hungry, unless he made a full disclosure ; but if he did make a disclosure, he should be well accommodated with room, fire and victuals, and might expect pity and favor. The prisoner continued to deny his guilt for some time ; and when his master visited him, he complained of the want of clothes, fire and nourishment. *At length, r*-,-./, however, on the 19th of December, he made successive acknowledgments of the facts contained in his confession, which was formally, and, to all appearance, voluntarily, made before the mayor, on the succeeding morning ; and which was repeated, with additional circumstances, at subsequent periods.
    In the prisoner’s defence the following authorities were cited,
    principally to guard the jury against the danger of mere presumptive evidence, and an extorted confession of guilt, through force, hope or fear, particularly, in the case of an infant; 4 Bl. Com. 357; Fost. 243; 2 Trials per Pais 603; 2 Hale H. P. C. 225; 2 Bl. Com. 326; Leach C. L. 248, 319; 3 Com. Dig. 511; Staundf. 144; 2 Hale H. P. C. 284-5; 3 Bac. Abr. 131; 3 Inst. 232; 2 Hawk. 604; 8 Mod.; Fost. 11, 244.
    For the Commonwealth.

    — The confession was delivered before the mayor, and afterwards repeated and enlarged, without the least appearance of constraint or terror. No public officer has improperly attempted to excite fear or hope, as the medium of extorting a discovery ; and all that was said or done in that respect, proceeded from the avowed friends of the prisoner, and the known promoters of humanity. Besides, the confession itself bears intrinsic marks of its sincerity and truth ; and neither the wildness of the boy’s motive, for committing the crimes, nor his youth, can afford a satisfactory answer to the charge. (Fost. 70.) And, after all, to destroy the legal effect of the confession as evidence, it must be proved, 1st, that previous improper means were employed ; and 2d, that the confession was the immediate consequence of those improper means.

       The trial was held at a court of oyer and terminer, in Philadelphia, on the 31si of January 1792, before McKean, Chief Justice, and Shippen and Bbadford, Justices,

       But see, on this point, 2 Starkie’s Ev. 27.

   By the Court.

— The fact of the arson is established; and it only remains to decide, whether it was committed by the prisoner? The proof against him depends upon his own confession, slightly corroborated by the testimony of two witnesses. The confession was freely and voluntarily made, was fairly and openly received, before the mayor ; and therefore, it was regularly read in evidence. But still, it has been urged, that it was thus apparently well made before the mayor, in consequence of improper measures previously pursued with the boy. The interference of the inspectors of the prison was certainly irregular; though the public anxiety, in which they participated, upon this extraordinary occasion, may be admitted as an excuse. The manner in which he was urged, though not threatened, by the citizens who visited him, may likewise be objectionable. But is it reasonable to infer, that all the prisoner’s confessions were falsely made under the influence of those occurrences? Consider the nature of the offence. It cannot be openly perpetrated ; for it would be instantly prevented ; and if it is secretly perpetrated, how, generally speaking, can the offender be de¡u-.gl teet-ed, *but-by his own declarations? If such declarations are voluntarily made, all the world will agree, that they furnish the strongest evidence of imputed guilt. The hope of mercy actuates almost every criminal who confesses his crime; and merely that he cherishes the hope, is no reason, in morality, nor in law, to disbelieve him. The true point for consideration, therefore, is, whether the prisoner has falsely declared himself guilty of a capital offence ? If there is ground even to suspect, that he has done so, God forbid, that his life should be the sacrifice ! While, therefore, on the one hand, it is remarked, that all the stables set on fire, were in the neighborhood of his master’s house ; that he has, in part, communicated the facts to another boy ; that his conduct had excited the attention and suspicion of a girl, Avho knew him ; and that he expressed no wish to retract the statement, Avhich he has given : the jury will, on the other hand, remember, that if they entertain a doubt upon the subject, it is their duty to pronounce an acquittal. Though it is their proAdnce to administer justice, and not to bestow mercy ; and though it is better not to err at all; yet, in a doubtful case, an error on the side of mercy is safer, is more venial, than error on the side of rigid justice.

For the Commonwealth, Ingersoll, attorney-general. For the prisoner, Sergeant and Todd.

Verdict, not guilty,

         The humanity of the jury being gratified by an acquittal of the prisoner, from the capital charge, he was indicted and convicted, on the same facts, for a misdemeanor. By the reform of our penal code, arson is no longer a capital crime.


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    *APRIL TERM, 1792.
    Morris’s Lessee v. Smith.

      Decedent's debts.

    The lands of a decedent may be taken in execution on a judgment obtained against the personal representative, notwithstanding an intermediate bonA fide conveyance by the heir-at-law, for a valuable consideration.

      Quaere? Whether, in such case, a scire facias against the terre-tenant is required?
    Ejectment for twenty-three acres in Philadelphia county. It was agreed, that John Hunt (under whom both parties claimed) died seised of the premises ; and the lessor of the plaintiff’s immediate title was derived under a judgment obtained against Hunt’s executors, in June term 1786, at the suit of Thomas Corbin, for 105Z. 10s.; upon which there was an execution, a sheriff’s sale, and a sheriff’s deed to the plaintiff, dated the 5th of. June 1787.
   The defendant relied on this statement: Hunt died the 81st of March 1778, having made his will, and leaving an only son, who sold and conveyed the premises to William McCullough, on the 26th of December 1778, for a full and valuable consideration. But it was decided in the year I736, that such a conveyance by the heir-at-law, or devisee, was not sufficient to protect the real estate from creditors ; and then, the widow and executrix oí Hunt confessed a judgment to Corbin, upon which the premises were taken in execution, and sold to the lessor of the plaintiff, but, in truth, for the widow’s use. John Hunt, the father, had also left a considerable real property in New Jersey; yet, to defeat McCullough’s purchase, and to get clear of the law of Pennsylvania, that property was left unsold and unappropriated ; and the premises pursued to satisfy this voluntary judgment.

But the plaintiff, to rebut the insinuation of collusion and fraud, proved satisfactorily, that Hunt had purchased the lands in Pennsylvania, as well as in New Jersey, with money borrowed from Corbin ; for the amount of which he had given his bond, dated the 1st of January 1762 ; that several partial payments were indorsed *on the bond ; that on the 26th of October p-j^o 1768, the balance being then considerable, Hunt conveyed to Corbin a tract of land in New York, and several tracts of land in New Jersey, including the greater part of the property mentioned by the defendant; that on the 6th of September 1787, the plaintiff conveyed the premises to James Pemberton, for the nominal consideration of five shillings; and that Pemberton executed a declaration of trust, to the use of Corbin.

Upon this development of the case, however, two points were made, and at the request of the counsel, reserved for future argument:

1st. Whether the land could be sold by virtue of the judgment, without a scire facias against the terre tenant ?

2d. Whether the land was liable for the testator’s debts, after being aliened by the heir-at-law, bond fide, and for a valuable consideration ?

Verdict for the plaintiff.

        а) Moore v. Few, 1 Dall. 170.

       It does not appear that these questions were ever argued in the present suit. But see Graff v. Smith, 1 Dall. 481.

       For a full report of the arguments of counsel, and the decision of the court in this case, on the second point, see 1 Yeates 230; where the opinions of the judges are to he found at length — all agree in the affirmative. The first point is not noticed in this report; but from an examination of the record in the supreme court (April term 1793), it appears, that both the points were argued, and that then judgment was entered in favor of the plaintiff.


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    Calhoun’s Lessee v. Dunning.

      Record evidence. — Blunston’s licenses. — Improvement.—Awaurd.
    A judgment against cestui que trust is evidence against the trustee, in a suit brought by him — the parties being substantially the same in both suits.
    In ejectment, a record of an action of trespass between the defendant and one 0., was offered in evidence by the defendant; O. had there pleaded liberum, tenementum, and there had been a reference in the case, on which, the property at present in dispute w&a awarded to the defendant; and it appearing that the plaintiff had never controverted C.’s right, it was held, that the record was admissible.
    Blunston’s licenses have always been deemed valid, and many titles in Pennsylvania depend upon them.

    A mere improvement right, subsequent to a legal right vested in another, ought never to be rendered effectual in favor of a settler.

    An award of referees cannot give a right to land, but will settle a dispute about it, either in an ejectment, or in an action of trespass, and such an award may be conclusive, if this be the agreement of the parties.

    Ejectment. The inception of the plaintiff’s title depended upon an extract from the record of licenses or grants by Blunston, dated March 1734-5, which was merely a minute in these words : “John Calhoun, 200 acres on Dunning’s run, called the Dry Spring, between Jacob Dunning and Ezekiel Dunning.” By the field-notes of Coolcson, a surveyor, it appeared, that there was a survey of the land, on the 22d of March 1743-4, for Robert Dunning; but a memorandum was afterwards made by one Morse, a clerk to the surveyor, “ that the land was claimed by the heirs of John Calhoun.” John Calhoun having entered a caveat, the decision of the board of property was pronounced, on the 24th of November 1766, setting forth, “that under Blunston’s license, J. Calhoun took possession and cleared three acres, built a cabin, and returned to Chester county, where he dwelt; that in 1743, one Armstrong got a warrant, but was told by Dunning, that the land belonged to Calhoun, of whom he had purchased it; that afterwards, Dunning took out a warrant in his own name, and got a survey made, on which a caveat was entered against him ; that an ejectment was brought, in which Dunning lost the possession ; that Dunning then purchased Armstrong’s warrant, got a survey upon it, and now ^claimed a patent; but the board of property ordered the patent to issue to Calhoun.” By will, dated the 19th of September 1752, John Calhoun devised the premises to Rebecca Calhoun, who conveyed the same to James Calhoun, the lessor of the plaintiff, by deed the 20th July 1763 ; and he, having made a re-survey, on the 5th of September 1788, obtained a patent on the 3d of April 1789.
    The defendant’s claim depended on the following facts : In 1753, Dunning lived on the premises, and reaped corn on it, so late as 1788. In 1779, one Caruthers was making a fence on part of the land; he continued to live there, at the time of the resurvey in 1788 ; and he was considered as tne owner by purchase from Calhoun. But in 1764, a survey was made for Dunning, under Armstrong’s warrant, which, as the surveyor affirmed, left the disputed land entirely out of the lines. In an action of trespass, between Dunning and Caruthers (plea, liberum tenementum), there was a reference, in the year 1788, on which it was awarded, and the award affirmed by the court, that the line should be run between the parties, so as to leave the disputed land in the possession of the plaintiff, Dunning.
    I. It was objected, that the record of the action of trespass, could not be read on the trial of the present ejectment, as it was not between the same parties. But it was answered, that Caruthers, the defendant then, was now the person really interested, as owner of the land ; that Calhoun was merely a trustee ; and that, as an action might be brought in the name of the cestui que trust (Kennedy v. Fury, 1 Dall. 72), the judgment ought to be admitted. And—

       Decided at Carlisle, in Cumberland county nisi prim, 11th May 1792, before Snippen and Bradford, Justices.

         See Lessee of Dixon v. Morehead, Addis. 216, 231 n. In ejectment, an award of referees, appointed under the act of assembly of 1705, is not conclusive of title. Duer v. Boyd, 1 S. & R. 203. But an award of arbitrators, under a submission at common law, fixing a boundary line between the land of the parties, is final. Davis v. Havard, 15 Id. 165.

       See Dunning v. Caruthers, 4 Yeates 13.

       Hepburn v. Hutchinson, 2 Yeates 329; Eddy v. Faulkner, 3 Id. 580; Pigou v. Nevil, 4 Id. 266; Pennsylvania v. Huston, Addis 334; Adams v. Jackson, 4 W. & S. 55.

   By the Court.

— We can never acquiesce in an attempt so manifestly calculated to evade the truth and justice of the case. Shall it be in the power of a party, by suppressing a deed ; or by employing the name of a trustee; to avoid the legal effect of a judgment rendered against him ? In the action of tresspass, Caruthers pleaded liberum tenementum, as to the very lands now claimed by Calhoun ; and Calhoun has never controverted his right. It is plain, therefore, that Calhoun’s name is now employed, for the use of Caruthers ; and that the parties are really, though not nominally, the same, in both suits.

Objection overruled.

II. In the charge to the jury, it was stated—

By the Court. — Blunston’s licenses have always been deemed valid ; and many titles in Pennsylvania depend upon them. The equitable right acquired by the lessor of plaintiff, under a license, has been perfected by a survey and patent; so that he clearly possesses a legal title to the land in dispute.

On the other hand, the defendant has no office-right, but rests his pretensions on an early possession, the exclusion of the disputed *land in the resurvey of 1764, and the award and judgment in the action *- of trespass. Of the equitable circumstances, the jury will judge, with this remark from the court; that a mere improvement right ought never to be rendered effectual in favor of a settler, when it commences subsequent to the existence of the legal right, regularly vested in another.

The great objection, however, to the plaintiff’s recovery, arises from the award and judgment. To be sure, an award cannot give a right to land ; but a report of referees will settle a dispute about land, either in an ejectment, or in an action of trespass. In the case of Fox's Lessee v. Franklin, a similar report has been made, and affirmed. Indeed, such a report is more operative than a verdict: for a verdict in ejectment is not conclusive ; but when parties choose to adjust their disputes amicably, they generally agree, that the award shall be final; and under such an agreement, neither of them can hope again successfully to agitate the same points.

Under this charge, the plaintiff suffered a nonsuit,

         In Duer v. Boyd, 1 S. & R. 213, Judge Yeates, who had been of counsel in the case of Calhoun v. Dunning, said, he was strongly inclined to think, that implicit confidence was not to be placed on the accuracy of the report of it. The case of Dunning v. Caruthers, 4 Yeates 13, appears to have been an action for the same land, which was in dispute in Calhoun d. Dunning, and as similar questions must have arisen in both suits, there is a great discrepancy between the two reports.


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    Gander’s Lessee v. Burns et al.

      Conflicting locations.

    In case of conflicting warrants, if there be ground enough to satisfy both, each party will be confined to what he purchased.
    Ejectment for lands in Mifflin county. On the trial of the cause, the following general principles were stated in the charge to the jury.
   By the Court.

— The first inquiry is, whether the location and warrant call for the same place. If they do, then, as there is ground enough to satisfy both, one shall not run away with all, but shall be confined to what he purchased. This is the rule in the board of property, and if Snedon’s rights have not been abandoned, nor transferred to Dearmond, it is the rule that ought to be applied here. Those rights do not seem to have been abandoned ; for in 1701, the children were infants, and were hardly of age, when this action was brought; laches cannot, therefore, be imputed.

Whether Dearmond purchased, must be left to the jury : he had the receipt, and that is some ground for presumption, added to his own declarations, which, as they come on the part of the plaintiff, are evidence.

But if the rights remain, then the next question is, how shall the location and warrant be laid ? This must be determined, either by the description ; or by the prior improvement; or by the priority of date. As to the descx-ijxtion, Snyder calls for Everhart as his boundary, and Foster, for Buchanan, at opposite ends of the whole tract: *so that, it would seem, one might begin on one quarter, and another on the other quarter, until they meet. But if the priority of improvement is clear, that being the spot designed by the improvei’, ought, perhaps, to be assigned to him.

• If no other rule can be taken, the priority of date ought to give the preference to the party whose warrant is oldest, to locate it as he chooses.

Verdict for the plaintiff.


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    Massey et al., executors of Massey, v. Leaming.

      Legacy to a debtor.

    Testatrix had, for some time before her death, been in a low state of health; the defendant had taken charge of her affairs, and had some accounts against her, but had borrowed 1B01 from her, for which he had given a bond; the will contained a bequest of 2001. to him, “ provided he brings no account against me and my estate. Quiere ? Whether the legacy is a release of the bond ?

      Tilghman and Levy, for the plaintiff. Sergeant, for the defendant.

         Tried at nisi prius, Philadelphia county, in May 1792.

       “There can be no pretence to say, because the testator gave a legacy of 5001 to the defendant Wood, therefore this was an argument, or evidence, that the testator intended to remit the former debt; but if a man gives a legacy to his creditor to the amount of the debt, this has been construed a payment or satisfaction of the debt.” Jeffs o. Wood, 2 P. Wms. 182.

   Debt. Plea, payment, with leave to give the will of testatrix in evidence. The case was simply this : Mrs. Massey, the testatrix, was in a low state of health, for some time before her death; the defendant took the charge of her affairs, and had some accounts against her ; but he borrowed 150i. from her, for which he gave a bond, payable in one year, with interest. On the 5th of June 1784, she made her will, which was proved on the 21st of June, containing, among other things, this bequest : “I give to T. Learning, in consideration of his many services to me, 200i. in real specie ; provided, he brings no account against me and my estate ; and if he happen to bring any account against me, or my estate, then this bequest to be void with a devise over of the testatrix’s estate. The legacy was paid to T. Learning ; the present action was brought upon his bond; and the question of law arose, whether the bequest operated as a release ?

The plaintiff’s counsel suggested, that they were ready to prove, that there was a deficiency of assets to pay debts. Upon this suggestion, it was agreed, that a verdict be given for the plaintiff, subject to the opinion of the court, whether the bequest was an extinguishment of the debt ? If it was so considered, then the plaintiff shall be at liberty to prove a deficiency of assets, for the payment of debts.

After depending for a great period on the docket, the suit was, finally, marked not to be brought forward.”

       A legacy to a debtor is not, per se, a discharge of the debt; but it may be shown to have been so intended, by extrinsic proof. Zeigler v. Eckert, 6 Penn. St. 13; Strong v. Bass, 35 Id. 333. And see Richets v. Livingston, 2 Johns. Cas. 97; Smith v. Kearney, 2 Barb. Ch. 533; Stagg v. Beekman, 2 Edw. Ch. 89; Clark v. Bogardus, Id. 387; Negley’s Estate, 25 Pitts, L. J. 99.


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    *SEPTEMBER TERM, 1792.
    Vaughan et al., Assignees of Nancarrow, v. Blanchard et al.

      Nonsuit. — Landlord and tenant.

    The court will not direct a nonsuit, for want of proof, by the plaintiffs, of a material fact, where they have offered some evidence of it.

    If a landlord interrupt the tenant’s enjoyment of the demised premises, the rent is suspended, unless it be shown that such an interruption was in pursuance of a reserved privilege.

    Debt, for rent. The facts were these : Nancarrow advertised to let the room and front cellar of a house, which he rented from Pemberton; and the defendants agreed to take them at 130i. per annum, commencing the 27th of July 1784, and continuing until the end of Nancarrow’s term in the house. A lease in writing was drawn, but never executed, though the defendants entered into possession of the premises, made some repairs, and paid a part of the rent. Soon, however, after the defendants had taken possession.of the room and cellar, it was again advertised to be let, with directions to apply to them for particulars; and, accordingly, they let the premises to one Dixon ; Dixon again let them to Fox, the agent of a merchant of the name of Leuffer; and Leuffer deposited a considerable quantity of merchandise in the cellar. Nancarrow now claimed a right to pass through the front cellar, into the back cellar ; Leuffer objected to it; but, upon Nancarrow’s persevering, he took another house, at the end of Dixon’s time (six or nine months), to which he removed his goods. Leuffer’s agent offered to pay his rent to Nancarrow, but Nancarrow refused to accept it, unless the receipt' was taken, as from Blanchard. Under these circumstances, the present action was brought, to recover a half year’s rent, on a demise (as stated in the declaration) to hold from the 27th of July 1784, until the expiration of Nancarrow’s term in the premises, with an averment that Nancarrow had a lease from Pemberton. Blanchard then instituted an action against Fox, to whom the premises were underlet, for Leuffer; but declaring that he would only prosecute his claim, if he was compelled to pay the plaintiffs in the present suit.
    *I. Sergeant and Ingersott, for the defendants,
    moved to nonsuit the plaintiffs, because there was no proof of a lease from Pemberton to Nancarrow, as the declaration averred. The only ground of recovery in this action, is, either that the defendants actually -occupied the premises ; or that the plaintiffs, in pursuance of the bargain, had vested them with a right of occupancy. Now, the lease of the defendants was made dependent upon the lease of Pemberton : and non constat that such a lease existed, as it has not been produced, nor any regular account of it. (Doug. 642-3.) But—

         s. c. 1 Yeates 175.

       Stout v. Russel, 2 Yeates 334; Morse v. Bogert, 4 Den. 108; Labas v. Copton, 4 N. Y. 547; Colt v. Sixth Avenue Railroad Co., 49 Id. 671.

       Garrett v. Cummins, 2 Phila, 207; Doran v. Chase, 2 W. N. C. 609.

   By the Court.

— Whether it is necessary, or not, in this action, to prove the existence of a lease from Pemberton, there is no ground for a nonsuit. The plaintiffs have offered some evidence to show that Nancarrow possessed a term in the house ; and of the operation and effect of that evidence, however it applies to the issue, the jury must judge and decide.

II. In the charge to the jury, it was stated by The Court, that the cause depends upon a single fact, whether Nancarrow had a right of passage through the front, into the back cellar ? The affirmative, it was incumbent on the plaintiffs to prove ; but they had not proved it, either by written or parol evidence. Then, the law declares, that such an interruption in the enjoyment of the premises demised, will suspend the rent.

Verdict for the defendants.


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    Commonwealth v. Margaret Biron.

      Homicide. — Manslaughter.
    Indictment for the murder of Jane McGIaughlin. It appeared in evidence, on the trial, that Hugh McGIaughlin, the husband of the deceased, rented from the prisoner, a part of the house in which she lived; that on the 10th of June 1792, while it rained hard, a noise was heard at the house, and the deceased was attempting to get in ; that she said, “ You whore, let me come in and the prisoner said, “ You whore, you shan’t;” that the deceased appeared to be then in liquor, though by all accounts, she was a very quiet woman ; that the prisoner opened the door, and she and the deceased began to struggle, when the former pushed the latter down the steps, and her head struck the wall; that the deceased seemed to be bent by her fall, and the prisoner came out of the house, saying, “ Ah ! this is the way I am troubled with this kind of people ! her husband has just left her in this situation;” that the witness observed, “You pushed her down,” to which she answered, “I did not;” but after the deceased was carried into the house, she acknowledged that she had done it, and said she was in a great passion ; and that the deceased and the prisoner used before *to quarrel, but had ^ not been seen to strike each other. On examining the deceased, Dr. *■ Hutchinson said, that he found considerable injury done to the bone on one side of the head ; but that the wound was not necessarily mortal; and he thought, from appearances, that the deceased must have been intoxicated, at the time of her fall.
   By the Court.

— The circumstances present to the consideration of the jury, a case of atrocious manslaughter ; but in our opinion, no more.

Verdict, guilty of manslaughter, but not guilty of murder,

         The indictment was tried in a court of oyer and terminer, in Philadelphia count} on the 19th of November 1792.