# United States Reports/Volume 1/Index

ABATEMENT.
W
See Practice. Action.
ACCOUNT.
ACTION.
The Court will not in one action enquire, upon motion, into the merits of another. 127
An action for money had and received, &c. is a liberal action, and will lie in all cafes where, by the ties of natural juftice and equity, the Defendant ought to refund. 145
But where a party might with good confcience receive the money, although he could not recover it at law, he who voluntarily paid it, cannot in this action compel a return. ibid.
The Court will enquire into the caufe of action in the cafe of Foreign Attachments, as they do in cafes of Capias. 154
There is no cafe which gives a creditor an action againft the debtor of his debtor: there is no privity between them. ibid.
A writing under feal cannot be given in evidence, to fupport an action of Aʃʃumpʃit upon a promiffory note. 208
An action will not lie in a common law Court, where the queftion arifes from the neceffary and immediate confequences of a veffel's being taken as prize. 218
In an action for money had and received, &c. the Plainitff fo far confirms the Defendant's act, as that he cannot gainfay the right to receive the money, and can recover no more than was actually received. 122
In an action of debt brought upon a bond, and where the iffue is joined on a plea of payment, the Jury may, and ought to, prefume everything to have been paid, which, en eque et bano, in equity and good confcience, ought not to be paid. 260
In an action of account between partners, if thefe facts are proved, that a partnerfhip exifted, that the Defendant was the acting partner, and that he received any part of the fum from any of the perfons mentioned in the declaration, the Court will uniformly oblige him to account. 339
The mere fale and delivery of a promiffory note, without any indorfement or affignment, will not be fufficient to maintain an action brought by the purchafor in his his own name, where no other confideration for an aʃʃumpʃit is laid in the declaration. 370
A perfon whofe eftate was confifcated during the late war, under no act of the Legiflature of Connecticut, for adhering to the Britiʃh government, cannot fue here to recover a debt, vefted by that confifcation in the State of Connecticut, although no proceedings were had on the part of the State, to reduce the debt into poffeffion, before the Treaty of Peace. 400
What is a reafonable time to renew an action after abatement, or to profecute it upon the foundation of the old writ, where there has been no abatement. 412
Aʃʃumpʃit for money had and received, &c. will lie to recover back the confideration money given for the purchafe of lands, and deeds or other writings which are not the immediate foundation of the fuit, but only tending to it, may be given in evidence. 429  Letters
Letters of administration granted by the archbishop of York in her kingdom of England, are not (illegible text) and authority to maintain an action, here. 456
SeePractice. Action. Assignment. Consideration. Covenant. Lis Peridens.
ACTS OF ASSEMBLY.
An Act of Assembly of the late Province was not demand to be repaired by the King and Council, ’till notify action here. 9
It is fairly to be inferred from the general tenor of the Act of Assembly for the revival of the laws, that the legislature thought, that the separation from Great-Britain, worked a dissolution of all government. 58
See British Statutes.
ADDITION.
J.B. of West Bradƒord was required by proclamation to surrender, &c. by the name and addition of “J.B. of East Brasord township ;” and it was held to be fatal. 60
ADMINISTRATOR.
On the plea of want of assets, in an action against an executor by a residuary legatee, auditors shall be appointed ex tempore ; and it is not sufficient to object, that the executor's accounts have been before settled by a reference. 164
Payment to an executor or administrator of a deceased partner can be no satisfaction to the survivor, who has the sole right of suing for, and of receiving the monies due to the company. 250
Although an executor by paying money over to his co-executor, who becomes insolvent, would be chargeable, if there were creditors, and a deficiency of assets to satisfy them, yet he is not answerable to legatees. 312
A creditor taking a bond from the executor or administrator of his deceased debtor, discharges the old debt in not. 347
Letters of administrators granted by the Archbishop of York in England, are not a sufficient authority to maintain an action here. 456
SeeReƒerence.
ADMIRALTY.
The Delaware is within the Admiralty jurisdiction. 49
A Court of Admiralty cannot carry an agreement in (illegible text) on, nor give damages for the breach. ibid.
The owners of Letters oƒ Marque are responsible for rejecting (illegible text) of the vessels. 95
In cafes of (illegible text)persons in other vessels a (illegible text) capture made. ibid.
In what cases the Admiralty (illegible text) cognizance. ibid.
In what cases appeals from the Admiralty of the High Court Assembly and Appeals, are (illegible text) ibid.
The master for shippment answerable over to his owners while they have been obliged to pay a third person for damages sustained by his (illegible text) ; but the Court, under favourable circumstances, may reduce the quantium of damages below what the owners have paid. 180
It is a wrong position, that a master of a ship is not answerable for an error in judgment, but only for a fault of the heart, in civil matters. ibid.
Where the question to be tried, though not directly a question of prize, is yet a question arising upon the immediate and necessary consequence of a vessel's being taken as prize, it is solely and exclusively of Admiralty jurisdiction, and an actin will not lie in a common law court. 218
See Master and Servant. Damages.
AGENTS.
There must be some satisfactory proof of a Defendant's being actually an agent, before the Court will allow him to be sworn, under the Act of Assembly, to identify the money in dispute. in not. 224
A confidential agent cannot excuse himself on that account from being a witness against his construent. 439
See Witneʃs. Inʃurance.
AGREEMENT. See Frauds and Perjuries. Insurance.
Alien;
ALIEN.
An alien enemy has no right of action during a war; but the rights which the subjects of either power had against the other, are revived at the end of it. 71
See Action. Law oƒ Nations.
AMBASSADOR. See Law of Nations.
AMENDMENT.
A. Sci. Fa. was amended by the record, substituting September Term, 1782, for December Term. 133
Verdict in ejectment amended by adding, “and for residue they find for the Defendant.” ibid.
The (illegible text) and return of an alias Venditioni amended by the attorney's precept on which it issued. 197
After report, the rule of reference was amended by the agreement filed, so as to insert the name of Lewis, instead of Lewis. 379
See Error.
APPEAL. See Admiralty. Damages. Ejectment. Justices.
ARREST OF JUDGMENT. SEE Judgment.
ASSAULT AND BATTERY.
Striking any thing attached to the person, as a cane, is a battery, 114
See Alien. Law oƒ Nations.
ASSIGNMENT.
The assignee of a bond takes it at his own peril, and stands in the same place as the obligee ; so as to let in every defalcation which the obligor had against the obligee, at the time of the assignment, or notice of it. 23
The only intent of the act for the assignment of bonds, &c. is to enable the assignee to sue in his own name, and prevent the obligee from releasing after assignment. ibid.
After a bona fide assignment of a simple contract debt, the Court will not allow the nominal Plaintiff to discontinue an action brought to recover it, to the use of the assignee. 139
The Assignee of a simple contract debt cannot maintain a suit in his own name. 268
A bond payable to L.S. with a memorandum subjoined, that it was for the use of J. P. was assigned by J.P. to J. L. And it was adjudged, that this was not an assignment within the Act of Assembly ; and that J.L. could not maintain an action, in his own name, against the obligor, 444
A subsequent assignment of the same bond, by J.L. to G.T. is no more than an assignment of J.L.'s equitable interest. ibid.
The covenant by the word assigned, extends only to this, that the assignee should receive the money from the obligor to his own use ; or, if the obligee received it, that he would be answerable over for it to the assignee. ibid.
See Covenant. Diʃcontinuance.
ASSUMPSIT See Action. Promiʃʃory Note.
ATTACHMENT. See Contempt. Foreign Attachment. Domeʃtic Attachment. Coʃts.
ATTAINDER. See Action. Treaty.
ATTORNEY. See Letter oƒ Attorney.
AUDITORS. See Practice. Bill oƒ Exchange.
AUTHORITY. See Practice. Bill oƒ Exchange. Letter oƒ Attorney.
AWARD. See Reƒerence.
BAIL.
R
The proof of a debt necessary to hold to bail. 159
The 12 G. I. respecting proof of debts to hold to bail, was not in force, nor practicsed under before the Revolution. ibid.
See Foreign Attachment. Justices. Privilege. Practice. Bankruptcy.  BANKRUPTCY.
BANKRUPTCY
An infolvent debtor muft practice the Court before the adjournment, or he will not be entitled to his difcharged at that term. 142.149
A perfon difcharged by a fpecial infolvent act of New Jerʃey the act being local in its nature, and local in its term, is not thereby protected from his creditors here. 188
A difcharge under the infolvent laws of Maryland, extend to protect the perfon of an infolvent debtor in this State. 229. 224
The judgment of a foreign Court difcharging the debt, would, for that purpofe, be recognized here; (illegible text) an inchoate proceeding to obtain a difcharge, will not be fufficient to execute an infolvent debtor from giving bail. 263
The rational and legal conftruction of the 30th faction of the Bankrupt Act, appears to be, that no judgment creditor, who has not levied his execution, fhall receive any benefit from his judgment, and to the eftate or effects of the bankruptcy by the act, to the exclufion or prejudice of the creditors at large but muft be put upon the fame footing with (illegible text) 273
Yet, as to liens which do no not affect the general creditors, he will have the benefit of them in the fame manner, as if the act had never been made. ibid.
It would defeat the exprefs intent of the bankrupt law, if a poor judgment creditor could (illegible text) under an execution, which, being iffued upon a fubfequent judgment againft a bankrupt, was levied before the act of bankruptcy committed. ibid.
In that cafe, the creditor who fues out the execution is entitled to the money levied. ibid.
Upon a trial at law, the creditor of a bankrupt may give evidence to controvert the trading, bankruptcy, and conformity ; and the certificate is not conclufive proof of all the proceedings before the Commiffioners. 381
Though the bond of the petitioning creditor is given for a debt contracted prior to the Act of Affembly, and with a view to take out a commiffion, the Court would be unwilling, on that account alone, to invalidate the certificate. 308
A petition fubfcribed by one of two partners, in the name of himfelf and partner, is fufficient for the purpofe of taking out a commiffion, on a partnerfhip demand againft the bankrupt. 389
To found a joint commiffion upon a fictitious partnerfhip, is certainly unƒair within the meaning of the act of Affembly. 390
But if a partnerfhip did exift at the time of taking out the commiffions, a previous affignment of the partnerfhip effects for the payment of creditors, or the fmallnefs of the quantity of the goods in their (illegible text), cannot invalidate the commiffion, or defeat the benefit of the certificate. ibid.
Quere, Whether the flight of a ftranger to his own home, in another State, amount to an act of bankruptcy, within the meaning of the act of Affembly? ibid.
BILL OF EXCHANGE.
Where a man voluntarily pays the damages on a bill of exchange, without waiting for a proteft for non-payment, and the Defendant might with juftice receive them, the money cannot be recovered back. 147
The Court in an action on a bill of exchange, will allow the Plaintiff to ftrike out a fpecial, as well as a general, indorfement on the bill. 193
A proteft for non-payment muft appear under a notarial feat. ibid.
Poffeffion of a bill of exchange without the words, “ or order,” or other words of negotiability, is not indorfeable over, fo as to enable the indorfee to bring an action on it, againft the acceptor, in his own name. 194
Notice of proteft ought to be given in a reafonable time ; and, by not giving it, the holder takes the lofs upon himfelf. 234. 270
The reafonablenefs of notice of a proteft must, in Pennʃylvania, be left to the Jury, as a queftion of fact, and not of law. 254
A bill of exchange, neither paid nor received in fatisfaction of a precedent debt, but upon condition of its being honored, will not entitle the drawee to 10 per cent. damages, in cafe of its being protefted for non payment. 261
See Promiʃʃory Note.
BOND,
BOND. See Aʃʃignment. Bankruptcy. Payment. BRITISH STATUTES.
No act of Parliament made in England previoufly to the fettlement of the Province of Pennʃylvania, was extended here, unlefs by acts of Affembly, adjudications of Courts or eftablifhed ufage. 67 74.75
The Common Law of England has always been in force in Pennʃylvania; but all ftatutes made fince the fettlement of the Province, have no force here, unlefs the Colonies are particularly named. 67
See Frauds and Perjuries. Bail. Limitations. Trial.
CAPTURE. See Admiralty Inʃurance. CARGO. See Cuʃtoms. CERTIFICATE. See Bankruptcy. CHEAT. See Indictment. COMMISSION. See Coʃts.
COMPTROLLER GENERAL.
T
He has no right to adjudge a compenfation from the State for damages which individuals may have fuffered, in the coufe of military operations for the common fecurity and defence. ibid.
Where he has no jurifdiction originally, the Supreme Court, on appeal from his decifion, can have none. ibid.
See Supreme Court. CONFISCATION. See Cuʃtoms. United States. CONSIGNMENT. See Foreign Attachment. CONSOLIDATION. See Reƒerence. CONTEMPT.
It is a contempt of the Court to withhold a Venire. 29
It is a contempt, for which an attachment lies, to endeavour to prejudice the public mind in writings refpecting a caufe depending in Court. 319
When the Defendant is prefent, on a rule to fhew caufe why an attachment fhould not iffue againft him for a contempt, the Court will not make the rule abfolute, but proceed to give judgment for the offence. ibid.
See Reƒerence. CONTINUANCES. See Practice. Limitations. CONTRACT.
In what cafe the relation of an inferior and fuperior officer, will bind the latter of difcharge the contracts of the former. 140
See Covenant. CONTRIBUTION See Inteftate. COVENANT.
A covenant to repair, and deliver up the demifed premifes in good order and repair, rugs with the land, and fhall bind the affignee as much as the leffee, even if the affignee were not named by exprefs words, on account of the privity. 270
Covenant to deliver up the premifes in good order on the 1ft of March, 1778, but the fame being taken poffeffion of by an alien enemy, and afterwards. In was adjudged, that the affignee of the leafe was execufed from performance of the covenant; 1ft becaufe a covenant to deliver(illegible text) the premifes in good repair, againft an act of God or as enemy, ought to be fpecial and exprefs; 2dly, Becaufe the Defendant had no confideration, no premium, for the rifque; and it was not in the contemplation of either party; and 3dly, Becaufe equally as equity, and the lofs fhould be divided; – he, who had the term, will loofe the  temporary
temporary profits of the premifes ; and he, who has the reverfion, will bent the lofs done to the parmanent buildings. ibid.
Where there is a ground rent deed, containing an exprefs covenant on the part of the leffee, for the payment of rent, and he affigns over the premifes, although the leffor accept rent from the affignee, Covenant will lie for him againft the leffee to recover fubfequent rent. 307
CONVEYANCE. SeeDeed. COSTS.
The act of Affembly is pofitive, that, upon the reverfal of a judgment in the High Court of Errors and Appeals, each party fhall pay his own cofts. 292
Cofts not allowed where the debt is reduced under Ł 0 by a direct payment, and not by fet-off on the trial. 308 457.
What cofts will be allowed on executing a commiffion. 310
Where witneffes, upon an attachment for not obeying a ʃubpœna, proved their abfolute incapacity to attend, the Court directed the cofts of the attachment to abide the event of the fuit. 344
The Jury ought to include the cofts of the Replevin (illegible text)their verdict in an action brought upon the replevin bond. 440
See Proʃecutor.
CURRENT MONEY.
Current and Lawƒul Money are fynonimous. 116
The legal currency of Pennʃylvania was continental money. ibid.
A bond payable in “ lawful current money of Pennʃylvania” muft be taken to relate to the money iffued by Congrefs. ibid.
Current lawƒul money, by the pofitive words of the Act of Affembly, means fuch money as is current at the time of entering into the contract. 175
See Payment.
CUSTOMS.
Where the captain of a veffel is obliged by law to deliver a manifeft of his cargo, he does not comply, unlefs he exhibits a true and accurate one. 205
Every thing put on board of a veffel, is, generally fpeaking, comprehended in the defcription of her cargo. ibid.
What unlading of goods will becaufe of confifcation. ibid.
The want of knowledge, or of participation of the owners, will not prevent the conftication of a veffel, from which goods have been unladed before a due entry at the cuftom houfe. ibid.
DAMAGES.
O
In a fuit againft the captain of a privateer, brought by the owners of the veffel, after a recovery againft them for his mifconduct, in feizing a fhip and cargo as prize, which were not fo, the High Court of Errors and Appeals did not make the amount paid by the owners, the meafure of damages againft the Captain ; but, upon fome favorable circumftances appearing for him, they decried confiderably (illegible text) ibid.
See Comptroller General. Bill oƒ Exchange.
DEED.
Baron and Feme joined in a conveyance of the Feme's lands to truftees for certain ufes ; they afterwards acknowledged the deed before a Juftice of the Common Pleas, who indorfed upon the deed, that the Feme was examined apart from her hufband, and declared that fhe had voluntarily executed it, &c. Adjudged to be a good conveyance, upon account of the ufage. 11. 17
An ancient deed, of fixty years date, allowedto be read in evidence, although poffeffion had not gone along with it, on proof of the hand writing of one witnefs who was deed, and the other not known. 34
The recital of one deed in another in only evidence againft him who claims under it. 67
Interlineation, if made after execution of a deed, will void it, though  in
in an immaterial point ; and the prefumption is againft its having been made before. ibid.
Sheriff's deed of fale, under a Ven.Exp read in evidence, though not recorded; the acknowledgment in court, and the regiftering of it in the Prothonotary's office, being a fufficient recording within the act. 68
Deed date beƒore, but not recorded ’till aƒter a fheriff's deed, allowed to be read in evidence. 69
The Court hinder the reading a deed under feal ; but what ufe will be made of it is another thing. ibid.
J.V. devifes lands unto him eldeft fon A. in fee rail, with remainder in fee to all his other children ; and
afterwards by deed “ in confideration
“ of natural affection he gives grants,
“ &c. fully, freely, abfolutely, and
“ clearly, the fame premifes, to her fon
“ A. V. together with all the rights,
“ titles, intereft, claim, and demand
“ whatfoever, which he then had in
“ the faid granted premiffes, or any
“ part thereof, Habrendum unto him
“ only the faid A.V. without any
“ further condition, &c.” Adjudged 1ft. That this deed is a covenant to ftand feized to ufes: 2d, That fince the ftat of 27 H 8. c. 10. no inheritance, in a covenant to ftand feized to ufes, or other deed to ufes, can be raifed, or new eftate created, without the word heirs : and 3d, That there are no words in this deed, technical or relative that can raife a fee, fo that A.V. had only an eftate for life in the premifes. 137
See Partners. Evidence. Deviʃe. Covenant. Mortgage.
DEVISE.
Devife to the firʃt heir male oƒ J.S. when he fhall arrive at the age of 21 years, he paying to A. and B. the daughters of J.S. Ł 40 cash : After the devifor's death J.S. had a fon, who attained the age of 21, and paid his fifters the Ł40 each : Adjudged that the teftator's intent was that the firʃt ʃon of J.S. fhould take the eftate. 4
Devife to truftee, to the intent, that aƒter my wiƒe's deceaʃe, or in says ʃhe ʃhall merry, they fhould fell, and divide the money arifing from the fale among the teftator's children, when they feverally attained the age of 21 years, or were married : Adjudged, that this was a (illegible text) legacy in one of the teftator's children, who attained the age of 21 married, and died interftate, and without iffue, in the liƒe time oƒ the widow, who never had married again, but after whofe death, the truftees fold. 8
“I devife the refidue of my eftate to J.P. during the term of his natural life, and it he leaves lawful iffue, then I give my real eftate unto fuch iffue : But in cafe of (illegible text) dying without iffue, or they dying under 21 when I devife all my real eftate unto A. J. his heirs and affigns, on condition that he, or they, pay, &c.” Adjudged, that J.P. took an eʃtate faid which was forfeited by his attainder. 47
The word {{illegible|text}being ufed among the difabilities to which non jurors are fubjected by the act of Affembly, a non-juror is incapable of deviʃing lands. 170
Devife of lands to the teftator's fon John, when he arrives at the age of 21 years, to hold to him, his heirs, and affigns forever, is a veʃted devife ; and in cafe of the death of the fon inteftate, under age, unmarried, and without iffue after the death of his father his mother furviving him, the eftate devifed fhall not go to his eldeft brother as the heir at common law, but he diftributed equally among his brothers and fifters. 20. 175
T.B begins his will, “And as to what wordly eftate I am bleffed with, Idifpofe of as followeth :” and then, he devife, 1ft, “ To his fon J. B. a houfe and plantation where the teftator then dwelt, &c. to have and to hold unto the faid J.B. his heirs and aʃʃigns ƒorever, he paying,&c.” 2dly, “ To his wife M a certain piece of land, bounding, &c. Alfo, he gave his wife one third of fuch moveable eftate as fhould remain after the payment of his debts, funeral expences, and legacies, which ʃhould be in lieu oƒ her dower or thirds of his eftate : and 3dly, after bequeafting fome legacies, he directs his houfe and land by the mill to be fold by his executors: Adjudged, that the wife M had only an eftate for life in the piece of land devife to her. 226
See Deed. Will. Dower. Interʃtate.
DISCONTINUANCE.
The Court refufed to allow the nominal Plaintiff to difcontinue an
 tion,
action it being proved, that it was brought in his name for the ufe of another, upon a bona ƒide affignment of the debt. 139
See Practice. DISTRESS. DISTRINGAS. See Practice. DIVORCE. See Practice. DOMESTIC ATTACHMENT.
The creditors under a domeftic attachment having made a dividend before notice of a debt one to the Commonwealth, under the circumftances of the cafe, the Commonwealth was not afterwards entitled to full payment. 151
What conftitutes an inhabitant within the attachment laws. 152, 158
A judgment has relation to the firft day of the Term, fo as to exclude a domeftic attachment in favor of the judgment creditor. 450
See Foreign Attachment. DOWER.
Dower cannot be barred by a collateral recompenfe; the devife of any thing to a wife cannot be averted to be in bar of dower. becaufe a will imports a confideration in itfelf; and the devife, without other matter is to be taken as a benevolence, and the devifee confidered as a purchaʃor.
 417
The demandant i dower is not eftopped from recovering therein, by an action of partition which fhe had before brought, for dividing lands under a devife in her hufband's will and in which it was acknowledged, that the moiety of the premifes out of which dower is claimed, belonged to the tenants. 419
See Deviʃe. Partition.
EJECTMENT.
A
A bare preception of profits will not ouft a tenant in common ; and for the ftatute of limitation to bar, the poffeffion muft be adverfe. ibid.
Leffor of the Plaintiff fhall not be obliged to fhew his title farther back, than from the perfon who laft died feized, firft fhewing the eftate to be out of the Proprietaries, or the Commonwealth. 68
Ejectment may be maintained in Pennfylvania, by the ceʃtat que truʃt in his own name. 72
A fheriff's deed, which did not recite the record, was allowed to be given in evidence of title, without producing the record. 94
The Defendant in ejectment muft confefs leaʃe, entry and ouʃter, for all the tenements laid in the declaration ; confeffion for a part only will not be allowed. 126
The Plaintiff in an action of trefpafs for incline profits, fhall not give evidence of the annual value of the premifes beyond the time of the leafe mentioned in the declaration in ejectment. 172
On an appeal from the Regulators of party wills, &c. the queftion ought to be tried by ejectment. 308
See Limitations. ERROR.
Error was affigned, that “ the declaration is for the penalty in a penal bill, but omits to ftate that the fmall fum was not paid, fo that no caufe of action is fhewn to have accrued to the Plaintiff for the penalty : ” But it was held, that this want of an averment could not be taken advantage of on error. 461
The Court below having refufed to admit the Defendant to read in evidence a copy of an Act of Affembly of the State of Virginia, printed by the Law Printers of that Commonwealth, and ftitched up with a few other acts in a blue paper cover, it was held fatal on error brought. 462
It was adjudged to be error that the Court below permitted the Plaintiff there to amend his declaration by the writ, after the Jury had been fworn, and then had them fworn again, and received their verdict, without confent, without giving the defendant leave to plead anew, and without an imparlance or awarding the payment of cofts by the Plaintiff. 464
See Judgment. Verdict. Inʃtant.
EVIDENCE.
EVIDENCE.
Copy of a deed enrolled in B R. in England, evidence of a title to lands in Pennʃylvania. I
Copy from a revifter of births and death of ₢uakers in England, evidence to prove the death of a perfon. 2
In Partition, on the plea of non ten inʃinual, &c. evidence may be given, that fome of the Defendants were not tenants of the freehold, but only tenants at will. ibid.
The exemplification of a will made in England, and certified under the feal of the Prerogative Court, may be given in evidence. ibid.
Minutes of the commiffioners of property may be given in evidence. ibid.
The original private book of memorandums of the Secretary of the Land Office, refpecting the defcription of the land originally applied for, was given in evidence by conʃent, on the recommendation of the Court who thought it a queftion of great importance. 5
The proteft of a mafter of a fhip allowed to be given in evidence. 6. 10.
A letter from the Receiver General and Secretary of he Land Office, to the Surveyor General's Deputy, was allowed to be given in evidence, as the foundation of the Defendant's title. 6
A furvey made in purfuance of the above letter, not returned into the proper office, but found among the Deputy Surveyor's land paper, many years after his death, was allowed to be given in evidence, againft a regular warrant and furvey of a fubfequent date, a fettlement and poffeffion being proved. 7
The votes of Affembly and minutes of Council, were evidence to prove the time of the notification of the repeal of an act by the King and Council. 9
Evidence of a parol declaration of Mr. Penn, that the land in difpute was fold to the Defendant, rejected by the Court. 10
Hearʃay permitted to be given in evidence to prove pedigree. 14
The ftrict rules of evidence ought not to be extended to mercantile tranfactions. 16
An account fales allowed to be given in evidence, on proof of the hand writing on the factor, who figned it. ibid.
On plea of payment, in an action of debt on a bond, the Defendant may give evidence of a miftake, or want of confideration. 17
No man fhall create evidence for himfelf ; therefore, letters written by the leffor of the plaintiff, to fhew that his grant, on which the defendant made title, was conditional, were rejected. 18
The lift, commonly called the liʃt oƒ firʃt purchaʃors, was admitted in evidence to prove a grant of 500 acres from W. Penn, by deed, alledged to be loft. 2. 64
The pafs of a Juftice of New Jerʃey is not admiffible in evidence, in a caufe refpecting the feizure of goods brought into Pennʃylvania againft an act of Affembly. 62
Any deed under feal, when proved is proper to be given in evidence. 63
A deed fworn to by one witnefs before a magiftrate, who certifies the fame, is within the rule. 63.93
A paper copied from the books of the Surveyors's office, ftating that a furvey had been made, was not allowed to be read in evidence; but the book from which it was taken, was admitted, without fhewing any actual furvey. 65
On proof that the Defendant in ejectment was in under J. P. or his heirs, the leffor of the Plaintiff was allowed to give evidence of the detention of deeds by the heirs of J.P. and alfo to read letters written by J.P. ibid.
Evidence allowed to be given of the conffeffion of the Defendant, made after the commencement of the fuit. ibid.
Probate of a will in the Prerogative Court of Canterbury, not recorded here, allowed to be given in evidence. 66
Two deeds, both executed in England, but only one of them recorded here, were allowed to be given in evidence. ibid.
A letter from a third perfon no way concerned in the title, was offered in evidence to prove under whom he had poffeffion, but refufed. ibid.
Recital of one deed in another is no evidence, but againft the party claiming under it. 67
In forcible entry, &c. title cannot be given in evidence to prevent reftitution. 68
 An
An entry made nineteen years ago in the Defendant's books, that a note of 13 years ftanding was paid, was allowed to be read in evidence, to fupport the general prefumption of payment after fuch a length of time. 85
A book given in evidence to the Jury, with a direction, that if they thought it was a tranfcript from another book, to pay no regard to it. ibid.
A fheriff's deed allowed to be read in evidence, without producing the record. 94
If one of two witneffes to a deed becomes interefted, the other muft be called, or proof given that he cannot be found ; otherwife the deed may not be read in evidence. 123
The regifter of a fhip, certified by the naval officer under his feal of office, admitted to be read in evidence againft the Defendants, though the writ, with refpect to the Defendant that made the regifter, was returned non eʃ t inventus. 141
On an indictment for a nuifance, the Defendant cannot give evidence, that the act charged is beneficial to the public. 150
Parol evidence of the declaration of the grantor, amounting to a confeffion againft himfelf, though made aƒter the execution of deed, may be given to the Jury. 193. 426
Poffeffion of a bill of exchange is evidence of an authority to demand payment of its contents. 193
A writing under feal, cannot be given in evidence to fupport an action of affumpfit on a promiffory note. 208
An entry in a fhop book is not evidence, to charge a man upon a collateral affumpfit, to pay the debt of another. 238
When a confeffion is given in evidence, all that was faid muft be ftated, and the whole, generally fpeaking, ought to be taken together, unlefs circumftances of improbability appear. 240. 392
A judgment in a foreign attachment in a fifter ftate, is not conclufive evidence of the debt in an action herr between the fame parties. 261
₢uere, How far books are admiffible (not to prove a charge againft a party to the fuit, but) to fhew a collateral fact, whether a third perfon was the defendant's debtor at a particular period? 276
In order to prove that the goods in queftion were brought of a third perfon, and not of the Plaintiff, the entry in the bookds of the third perfon muft be fhewn ; his clerk's fwearing that he had made it, will not be admitted. 310
The proses verbal delivered into the Admiralty at a foreign port, was not admitted to be read in evidence in an action againft the underwriters. 317
The proteft of a Captain of a veffel made at a diftant day, and not at the firft port of arrival, was refufed to be admiited in evidence. 318
A fpecial verdict in another action upon the fame policy, but againft different underwriters, was allowed to be read in evidence, upon proof of an agreement of all the underwriters, to be bound by one verdict. 419
In what cafes parol teftimony is proper to be admitted to explain, and control the operation of a deed. 426
In an action of aʃʃumpʃit for money had and received, deeds, or other writings, which are not the immediate foundation of the fuit, but only leading to it, may be read in evidence. 429
A printed copy of an act of Affembly of Virginia, printed by the law printers there, and ftitched up, with a few others act, in a blue paper cover, in good evidence to be read to a Jury. 464
See Deed. Treaʃon. Bail. Ejectment. Grand Inqueʃt.
EXECUTION.
Execution cannot iffue upon a judgment confeffed on a bond by warrant of attorney until the time given for payment of the bond is elapfed. 133
A perfon committed in execution by a Juʃtice for a debt exceeding Ł10. difcharged on a Hab. Corp. 135
A perfon attending Court is not privileged from being arrefted on a Ca. Sa. 356
A prior judgment creditor, cannot come in under an execution, iffued upon a fubfequent judgment, againft a bankrupt, and levied before an act of bankruptcy ; but the Plaintiff in the execution fhall have the money. 373
There is nothing in the act of Affembly, which precludes the fheriff from holding an inqueft after the return of a Fi. Fa. 379
 When
When the judgment of a Juftice of the Peace is affirmed upon a removal into the Supreme Court, execution may iffue at once, without referring the caufe again to Juftice. 410
Land of an interftate are bound for the payment of his debts, and may for that purpofe be taken in execution, although the heir may have previoufly fold and conveyed them to a bona ƒide purchafor. 481
See Bankruptcy. Interʃtate. EXECUTOR. See Adminiʃtrator. EXTINGUISHMENT. See Payment.
FORCIBLE ENTRY AND DETAINER.
I
Wife of the profecutor in an indictment for forcible entry and detainer may be a witnefs to prove the force, but only the force. ibid.
Motion in arreft of judgment:–1ft. That the indictment of forcible entry, &c. ftated that “ the profecutor was ʃeized in his demefne as of fee,” without faying when : 2d. That the indictment ftated that, “ he was ʃeized in his demefne as of fee, ” and “ that his poʃʃeʃʃion thereof as aforefaid, continued until&c” which was repugnant. But both objections were over-ruled. ibid.
The proceedings on an inquifition of Forcible entry, &c. were quafhed, becaufe the defendant was ftated in the inqueft to have been poʃʃeʃʃed, but no eftate or term was laid. 354
FOREIGN ATTACHMENT.
Rum configned to be fold on account of the confignor, and to be applied firft to the payment of a debt due to the confignee, is not liable to a Foreign attachment, till the confignee is fatisfied. 3
Property of a fifter ftate is not liable to an attachment in Pennʃylvania, for a debt due from fuch ftate to an individual. in not. 77
A man who comes from another place to refide amongft us, introduces his family here, takes a houfe, engages in trade, contracts debts, and, after fometime, runs away with defign to defraud his creditors, is fuch an inhabitant as not to be an object of the Foreign Attachment, but of the Domeftic Attachment. 152
The Court will enquire into the caufe of action in the cafe of Foreign Attachments, as they do in the cafe of a Capias. 154. 219
What conftitutes an Inhabitant, within the meaning of the attachment laws. 158
What proof of a debt is fufficient in a Foreign Attachment, upon a citation to fhew the caufe of action. 160
After judgment has been regularly entered in a Foreign Attachment, ₢uere, whether it is not too late to move to quafh the writ. 294
Money paid into the hands of the Prothonotary was attached by the defendant as foon as he paid in ; but, on motion the attachment was quafhed. 354
In executing a writ of inquiry upon a judgment in a Foreign Attachment, the defendant is not entitled to produce evidence to the Jury. 377.
A fhallop attached was directed to be fold as a perifhable commodity, upon motion, and pofitive affidavit of the debt, at the firft term. 379
A Foreign Attachment will not ly againft an inhabitant of the State, though avowing an intention to emigrate, and actually on his journey for that purpofe. 480
See Domeʃtic Attachment.
Judgment. Evidence.
FRAUDS & PERJURIES
The Engliʃh ftatute of frauds and perjuries, 29. Car. 2. c. 3. does not extend to Pennʃylvania I.
But that ftatute is fupplied by an act of Affembly paffed 12 G. 3. c. 31, in not: ibid.
The act was made to prevent frauds as well as perjuries ; it fhould be conftrued liberally, and beneficially expounded for the fuppreffion of cheats and wrongs. 427
An engagement that if D.S. would make a conveyance to L.S. he would reconvey to a third perfon, although not in writing, and concerning lands of inheritance, is not, under the particular circumftances of the cafe, void by the act of Affembly. ibid.
Evidence.
FREEHOLDER.
FREEHOLDER. See Practice. Privilege.
GOVERNMENT.
I
A formal compact is not a neceffary foundation of government. ibid.
A kind of government independent of Great Britain, was adminiftered in Pennʃylvania before the eftablifhment of its prefent conftitution. ibid.
The conftitution of Pennʃylvania was a diffolution of the government as far as related to the powers of Great Britain ; but not in relation to the powers which had been before exercifed by councils and committees. ibid.
When treafon may be committed againft a government. ibid.
Subject means being in fubjection to fome foverign power, and is not barely commenced with the idea of territory: it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office. ibid.
See United States. GRAND INQUEST
It is improper and illegal to examine witneffes on behalf of the defendant while the charge againft him lies before the Grand Jury. 236
GROUND RENT. See Covenant. GUARDIAN. See Orphan's Court.
HIGH COURT OF ERRORS & APPEALS. See Damages.
INDICTMENT.
A
Or it will ly for a cheat of fuch a nature as may prejudice, although it does not charge that any perfon was actually defrauded. ibid
An indictment lies againft a public officer for a cheat in marking barrels of breed as of the weight of 88lb. each, when, in fact, they only weighed 68lb. 47.
An indictment lies for “ malicioufly, willfully, and wickedly killing a horfe,” although “ fecretly,” is not charged. 338
See Treaʃon. Nuiʃance. INFANT.
The appearance of an infant to a fuit brought againft him, is not a judicial act, and will be fatal on a writ of error. 166
A judgment againft an infant may be reverfed after full age, except in cafes of real actions, and fines and recoveries, which are, in their operation, mere modes of affurance ; and the fact muft be tried per pais, and not by infpection. ibid.
See Orphan's Court. INFORMER. See Proʃecutor. INHABITANT. See Execution. Foreign Attachment. Writ oƒ Enquiry. INSOLVENCY. See Bankruptcy. INSURANCE.
The defendant underwrote an open policy on the veffel from Philadelphia to Jamaica; fhe was taken by the enemy, and afterwards retaken and carreid into Jamaica ; where, by agreement between the captors and recaptors, without going into the Court of Admiralty, fhe was fold at public fale for one fourth of the fum infured, and bought by the Captain for the original owners, who afterwards acquiefced in the purchafe, and now fued for the whole fum infured as a total lofs ; But, agreeably to the directions of the Court, the Jury only allowed a compenfation for falvage, charges, and lofs of time. II.
A warranty that “ orders will be given that the fhip fhall not cruife,” is not complied with unlefs fuch orders are exprefsly given to the Captains ; an implication from the general inftructions will not do. 162
An agreement entered into by underwriters to be bound by one verdict, in equally binding on the parties whether made in perfon, or by a broker mutually employed. 419
All fuch agreements ought fift to be entered on the Records of the Court. ibid.
See Evidence. INTEREST.
Where money is received, as well as paid, in a miftake, and neither frank nor furprize can be imputed to either party, intereft fhall not be allowed in an action to recover the money back. 52
The rule for computing intereft on partial payments. 124. 378
Intereft fhall not be allowed upon an open account for goods fold and delivered. 265. 315
The cafe in Douglas relates only to the American trade with England, and does not interfere with the general rule. ibid.
Money received for another, and retained without the owner's confent, ought to carry intereft. 349
INTESTATE.
J. F. having two Sons and a Daughter, devifed a plantation to Mathias in fee. Mathias died in his minority, intereftate, and without iffued: Ruled, that the plantation fhould not go to the heirs of Mathias at common law, but be divided among his brothers and fifters, under the fupplemental inteftate law. 20. 175
Where the heir at law takes an inteftate's ;ands at a valuation, the Orphan's Court ought inftead of Bonds, which are a mere perfonal fecurity, to take his recognizance, by which the lands themfelves would be bound for the payment of the diftributive fhares. 265
The eldeft son, of the eldeft fon of an interftate, is entitled to an eftate which cannot be divided, at the valuation, in the fame manner as his father: 353
And the adjudication is not to be to all the children of the eldeft fon, but to his eldeft fon, who is alone his heir at common law. ibid.
In partition of an inteftate's eftate, the decree of the Orphan's Court was reverfed, becaufe no provifion was made for a Tenant by the curtofy of his wife's fhare. ibid
Where the purparts of the valuation money, at which the heir at law takes an inteftate's real eftate, are not fpecified, nor the time of payment fixed, the fentence of the Orphan's Court is not fufficiently certain: 354
But, on appeal, the Supreme Court might reduce both thofe points to certainly ; and, in that cafe, the whole cofts of the appeal would fall on the Defendant. ibid.
Where an heir at law offers to take an interftate's real eftate at a valuation, the fee in the premifes is not vefted in him, if he has neither paid, nor fecured the payment of, the valuation money to thofe who are entitled to receive it. ibid.
Upon the death of a man, inteftate, his lands are bound for the payment of his debts in fuch a manner, that they may be taken in execution and fold, notwithftanding the heir may have previoufly fold and conveyed the fame to bona ƒide purchafors: 481
And in fuch cafe, the purchafor from one heir is bound to contribute in aid of the other heirs, whofe lands remain unfold. 484
But quere, whether Purchafors under an order of the Orphan's Court, are likewife bound to contribute?
 486
JUDGES. See Judgment. JUDGMENT.
M
Judges are not bound to affign any reafons for their judgment, and when they do, it is always in public. 89
Judgment confeffed by warrant of attorney executed by one Partner, in the name of both, fet afide as to the Partner who did not fign the warrant, and confirmed as to the Partner that did. 119
A judgment obtained in a foreign attachment in a fifter ftate is not conclufive evidence of the debt, in an action between the fame parties here. 268  Where
Where Judgment may, or may not, be entered in the Supreme Court by warrant of attorney. 291
Judgment was arrefted in an action brought by the purchafor of a Promiffory note in his own name, againft the drawer, on the mere fale and delivery by the Payee, without any indorfement or affignment, or any other confideration for au aʃʃumpʃit being laid in the declaration. 370
After Judgment be deƒault, the Defendant may give evidence to the Jury on executing a writ of Inquiry ; but not after Judgment in a Foreign Attachment. 377
A Judgment has relation to the firft day of the Term, fo as to exclude a Domeftic Attachment in favour of the Judgment creditor. 450
If the verdict is good, a judgment entered upon it, generally, muft be fo, likewifes, for, when it is drawn at large, it may be put into form. 462
See. Bail. Bankruptcy. Error. Inʃant. Supreme Court. Juʃtices. Warrant oƒ Attorney. JUDGMENT CREDITOR. See Bankruptcy. Judgment. JUSTICES.
A Prifoner in execution on a Juftice's Warrant for a fum exceeding 101. was difcharged on Habeas Corpus. 135
After appeal, and fecurity given, a Juftice cannot iffue an execution againft the Defendant, but muft proceed againft the Bail upon the Recognizance. 316
The judgment of a Juftice was reverfed, 1ft, Becaufe the ʃummons was returnable on the next day, whereas the act requires that there fhould be allowed a time not lefs than five, nor exceeding eight days : and 2dly, becaufe the fummons was to anfwer a debt under forty fhillings, and the Judgment was for a greater fum. 405
The Defendant, after Judgment in given againft him by a Juftice, ought to enter into a recognizance inʃtanter, with, at leaft, one good furely : He may afterwards withdraw his fecurity, or appeal within fix days. 406
JUSTIFICATION. See Nuiʃance.
LAW OF NATIONS.
T
To infult a Secretary to the Legation in the houfe of the Minifter Pienipotentiary, is a violation of the law of nations, punifhable by fue and imprifonment: ibid.
But a perfon convicted of that offence, although claimed as a fubject of a foreign power, cannot be given upon fuch claim; but cafes may occur, where, pro bono publics, offenders may be delivered up to the juftice of the country from which they endeavour to efcape. 116
Nor can the perfons fo convicted, be imprifoned to the fovereign, whofe officer was infulted fhall declare that the reparation is fatisfactory ; for punifhments must be certain and definite in all refpects. ibid.
The perfon, houfe, and comites of a Minifter, are all protected by the law of nations. ibid.
See Alien. United States. LEGACY See Adminiʃtrator. LETTER OF ATTORNEY.
Where a fpecial letter of attorney was given to inftitute a fuit, and afterwards a perfon having a general power, executed a releafe to the Defendant in the fuit, the Court held the authority to be fufficient, and difcharged the party. 449
LIMITATIONS.
The Stat. of Limitations, 32 H. 8, c. 2, extends to Pennʃylvania. 15. 67.
So docs the 21 Jus. 1. c. 16. 19
But the 31 N.S. c. 9. does not extend. 67
For the Stat. of Limitations to bar in Ejectment, the poffeffion muft be adverfe. ibid.
The Court will never open a regular judgment, to let in a plea of the Statute of Limitations. 239
It is only neceffary to enter the continuances, in order to prevent the bar of the Statute of Limitations,  where
where the Writ and Declaration difagree to the nature of the action. 411
LIS PENDENS.
Before the return of the writ, the Plaintiff moved for a Special Court; but it was held, that the action was not depending for that purpofe till the writ was returned. 77
Practice.
MARINERS. See Maʃter and Servant. MASTER & SERVANT
U
As villeinage never exifted in America, no part of the doctrine founded upon that condition, is applicable here. 167
Property in a negro may be obtained by a bona ƒide purchafe without deed. 169
The Captain is liable fore the wages of mariners, if he admit them to ferve on board the veffel, altho’ they were originally fhipped by the owner. 393
A negro born before the 1ft of March 1780 to wifh in 1779, and not recorded agreeably to the act for the gradual abolition of flavery, cannot under that act, be held as a fervant ’till fhe is 28 years of age, but is abfolutely free. 469
See Admiralty. Cuʃtoms. MEDIETAS LINGUÆ. See Trial. MESNE PROFITS. See Ejectment. MORTGAGE.
A fubfequent fimple contract debt cannot be recovered on a Scire Facias upon a prior mortgage ; but only the principal, interefts and cofts, on payment of which the Court will ftay the proceedings on the Sci. Fa. 142
A mortgage, though not recorded within fix months, is good againft the mortgagor ; the Deed, fo far, fufficient to pafs the lands , and, under it, the poffeffion of the Premifes might have been recovered in Ejectment. 434
A mortgage, acknowledged and recorded the day after the Declaration of Independence, by officers appointed under the Proprietary government, was, neverthlefs, held to be valid againft a fubfequent judgment creditor, and bona ƒide purchafor, for a valuable confideration. 435
See Evidence. Deed. Payment.
NEGROES. See Maʃter and Servant. NEW TRIAL. See Trial. NONJUROR. See Deviʃe. NOTICE. See Bills oƒ Exchange. NUISANCE.
I
ORPHAN'S COURT.
T
Where an heir at law takes an Inteftate's lands at a valuation, the Orphan's Court ought, inftead of Bonds, which are a mere perfonal fecurity, to take recognizances, by which the land themfelves would be bound for payment of the diftributive fhares. 265
See Inteʃtate, Partition.
PAROL TESTIMONY. See Evidence.
PARTITION.
I
and
and of the property of each; but the Court would not reverfe an inqueft for omitting this. 352
The decree of the Orphan's Court was reverfed, becaufe in partition of an Inteftate's eftate, no provifion was made for a Tenant by the curtofy of his wife's fhare. 353
The practice in the Orphan's Court has been to direct the fame Inqueft which is appointed to make a partition of real eftate, if that cannot be done without prejudicing the whole, then to make the valuation. 354
Where a recovery in partition is no bar to an action of Dower, in that moiety of the premifes, which in affigned to the Tenant. 418
SeeDower. Inteʃtate. Orphan's Court. PARTNERSHIP.
One Partner cannot bind another by executing a Deed under the joint firm. 119
Not only the Ship's Hufband, but all the real owners at the time of the work done, are liable to the Tradefmen. 129
Payment to an Executor, or Adminiftrator, of a deceafed Partner, can be no fatisfaction to the furvivor, who has the fole right of fuing for, and of receiving the monies due to the company. 230
Articles of Copartnerfhip, being ves inter alias acta, the limitations cannot be known,and, therefore, ought not to affect a third perfon, who acts under a legal authority from one of the Partners. 269
One of two Partners may give an authority to a clerk under the firm of the Houfe ; and the clerk may, in confequence thereof, accept bills, and figs, or indorfe, notes, in the name of the company. ibid.
See Action. Bankruptcy. Judgment. PARTY-WALL.
The reimburfement of the coft of the moiety of a party wall, is only a perfonal charge againft the builder of the fecond houfe, and not a lien upon the houfe itfelf. 345
PAUPER.
It is not neceffary that an examination fhould appear upon an order of Seffions for the removal of a Pauper. 28
If a Pauper was injured by removal, a remedy may be had by Information. ibid.
PAYMENT.
Under the plea of Payment, miftake, or want of confideration, may be given in evidence. 17. 260
A Bond given in payment of a precedent debt, is conclufive evidence of the Contract to prevent the Obligor's claim of paying by Inftalments under the act of Affembly. 83
Partial payments, a rule for crediting them. 124. 378
Payment to an Executor, or Adminiftrator, of a deceafed Partner, is no fatisfaction to the furvivor, who has the fole right of fuing for, and receiving the monies due to the company. 250
In an action of debt upon a Bond, and where the iffue is joined on a plea of Payment the Jury may, and ought to prefume every thing to have been paid, which, en eque et bono, ought not to be paid. 260
Money paid into the hands of the Prothonotary upon a judgment, is to be confidered in the fame ftate as if paid to the Sheriff ; and is not liable to be attached by the perfon who paid it, on a fuggeftion that the debt may have been otherwife fatisfied. 284
Where a Bond fhall not be confidered as payment, or extinguifhment, pro tanto, of money due upon a mortgage. 423
See Practice. Current Money. Adminiʃtrator. Evidence.
POLICY. See Inʃurance. Evidence.
PRACTICE.
When the Defendant has fhewn title in a third perfon, he may take the opinion of the Court on that title, by motion for a nonʃuit, before he has gone through all his evidence. 18
In fuch cafe the Plaintiff cannot demur to the Defendant's evidence, ’till he has gone through the whole. ibid.
When a Deed is preduced in
 dence
evidence it muft be fhewn in has verba upon demurrer. 20
Whenever a writ iffues fairly, if delivered firft, it fhall take preference. 22
The proceedings on a Hab. Corp. are de novo ; but on a Certiorari the Court proceed on the ftate returned. ibid.
Fi. ƒa iffued n a Judgment in the Bail Bond fuit ; proceedings were ftayed on affidavit of a defence, pleading iffueably in the original action, and confending that the judgment on the Bail Bond fhould remain as a fecurity. 130
To entitle the Plaintiff to judgment by default, the fervice of a fummons on the pe ʃon of the Defendant, as well as if left at his houfe, muft be ten days before the return. 154
On affidavit that material witneffes for the Defendant (who was in confinement) were about to leave the ftate, the Court granted a rule to take their Depofition, though the writ was not returnable till next term. 164. 251
An Attorney's agreement to refer binds his client 164
The Defendant, by miftake of his attorney, had notice of trial for the 17th inftead of the 13th, judgment was entered by non ʃum inƒormutus : but afterwards, on proof of the miftake, the judgment was opened. 241
Although the words that “ the Defendant has not been reʃident in the ftate for twelve months before the writ iffued,” are inferted in an affidavit to found a Capias againft a Free-holder, yet the Court will enquire into the circumftances of the cafe, and relieve him from arreft, if they think he was intended by the act to be exempted. 246
A third perfon fully acquainted with the circumftances, is admiffible to make the affidavit of a defence, when the party himfelf, from extreme ficknefs, is incapable of making it. 248
Auditors fhall be appointed only where there is a difpute about the depreciation. ibid.
The Plaintiff, after ftating the want of a material witnefs, who had been ʃubpœna'd put off the trial ; but the Court, notwithftanding, granted the Defendant a rule for trial next term or Non Pros.
It is an invariable rule not to appoint referees, but in the prefence of both parties. 251
The Court will grant a rule to take the Depofitions of going witneffes, de bono eʃʃe, believe the return of the writ. ibid.
A cafe in Term Reports, being a determination upon general mercantile law, is of authority here. 272
After Judgment has been regularly entered in a Foreign Attachment, it is too late to move to quafh it. 294
On an appeal from the determination of the Regulators of Party Walls, &c. a feigned iffue can only decide, whether the Regulators have done right or note ; it cannot decide the title and finally fettle the matter ; and, therefore, it is propert to try the queftion by Ejectment. 308
The privilege of a Freeholder to be fued by fummons, extends to actions of Trefpafe vi et armis. 310
The rule is, that unlefs exceptions to the Report of Raferees are filed within four days, the judgment niʃs becomes abfolute. 312
A Diʃtringas will ly againft a Sheriff while in oƒƒice, upon a return of levied to the value, &c. but, under particular circumftances, it would be hard to iffue it, without moving the Court. ibid.
The Venire was laid in Philadelphia county, and jdugments being there obtained, execution was immediately iffued into Bucks ; but upon motion the writ was quafhed, the Court being of opinion, that the Plaintiff ought to have proceeded by Teʃtatum. 330
On a rule for trial non pros, the non pros muft be moved for in Court ; it cannot be figned in the Prothonotary's office. 347
A Capias will not ly againft a Freeholder, although the attorney directs his appearance to be accepted. 348
Rule to refer and report to next term ; after the next term, the Referees were changed by confent, and report returnable into oƒƒice : Determined that the rule to report to next term was expired by its own limitation. 349
On motion, and pofitive affidavit of the debt at the firft term, a fhallop attached under a Foreign Attachment, was ordered to be fold, as a perifhable commodity. 379  Is
It has been the practice for the Sheriff to hold an Inqueft, as well after as before the return of Fi. ƒa. 379
Rule for a trial, or non pros ; but afterwards a plea added, and particular facts referred : It was ruled, that, by this the rule for trial or non pros was virtually vacated. 405
On a libel for a divorce, notice ought to be given that between two fpecific dates, acts of cruelty, &c. were intended to be proved. 409
Rule for trial or non pros in September Term, and notice at bar ; and the caufe continued generally till January Term : It was determined that the rule for trial, or non pros was continued ; and that no new notice was neceffary. 410
Upon affirmance of a judgment in a caufe removed by Certiorari from before a Juftice of the Peace, execution may iffued at once out of the Supreme Court. ibid.
It is only from the difagreemeent of the writ with the Declaration, that it becomes neceffary to enter the continuances, to fhew it iffued for the fame caufe of action, in order to prevent the bar of the Statute of Limitations. 411. 450
The writs of Capias and Summons in Pennʃylvania always fpecify the nature of the actions to be declared in, and are, therefore, fimilar, in refpect of entering continuances, to the Originals out of Chancery, and the Attachments oƒ Privilege in the Common Pleas. 411
What is a reafonable time to renew an action ; or to profecute it upon the foundation of the old writ, where there has been no actual abatement. 412
Judgment before a Juftice of Peace is fufficient to defeat a Freeholder's privilege of being fued by fummons. 436
The practice of entering verdicts on the iffue on non ʃolvit. 462
See Action. Aʃʃignment. Cotnempt. Treaʃon. Diʃcontinuance. Error. Privilege. Foreign Attachment. Juʃtices. Judgment. Partition. Lis Pendens. &c.
PRIORITY.
When the Commonwealth is not entitled to a priority. 150
See Domeʃtic Attachment. Bankruptcy. Judgment.
PRIVILEGE.
Though the affidavit to ground a capias againft a freeholder contains the words, that “ he has not been reʃident &c.” the Court are not precluded, and will enquire into the circumftances of the cafe, in order to afcertain, whether the non refidence comes within the meaning of the act of Affembly. 246
A Lieutenant of another county who comes to Philadelphia, to take out the commiffions of fome militia officers, is not privileged from arrefts while here. 295
A fheriff elect who comes from another county to folicit Council for his appointment, is not privileged from arrefts while here. ibid.
A member of Affembly, or of a State Convention, is privileged from being arrefted, or ferved with a fummons, during the fitting of the Affembly or Convention. 302
A Conful, refiding aborad, and having entered into partnerfhip with another perfon, is not privileged from being fued. in not. 305
A freeholder who quits the State for a particular purpofe animus revertendi, leaving his faminly behind him, does not lofe his privilege of being fued by fummons. 348
A perfon attending Court is not privileged from being arrefted upon a Ca. Sa. 356
Judgment before a Juftice of Peace is fufficient to defeat a freeholder's privilege of being fued by fummons. 438
See Practice.
PROMISSORY NOTE.
A writing under feal cannot be given in evidence in an action of aʃʃumpʃit on a promiffory note. 208
Where there are fubfcribing witneffes to a promiffory note, they muft be produced, or fome account given of them at the trial. 209.
Sale and delivery of a promiffory note, by the Payee, without any indorfement or affignment is not, of itfelf, a legal ground of aʃʃumpʃit, to enable the purchafor in his own name, to fue the drawer. 441
The Indorfee of a Promiffory note, takes it fubject to all equitable confiderations, to which the fame was fubject, in the hands of the Indorfor, the original Payee. 441
See Bill oƒ Exchange.
PROPERTY.
PROPERTY.
What acts, between the Chapman and a Shopkeeper, do not amount to exchange, or transfer, of the property. 170
See Foreign Attachment. United States.
PROSECUTOR.
The Act of Affembly does not intend that a Profecutor fhould be indorfed on all Indictments ; but only where a Profecutor really exifts. 5
The Defendant is not a competent witnefs to prove the perfon profecuting, it muft be proved by indifferent witneffes. 6
The Judge who tries the caufe, not being authorifed by the Act of Affembly to certify, fo as to exempt the Informer from cofts, he cannot do it. 63
PROTEST. See Bill oƒ Exchange. PURCHASE,
The word Purchaʃe, implies a Purchafe in Fee. 20
REAL ESTATE. See Inteʃtate. RECTIAL. See Deed. RECOGNIZANCE. See Bail. Orphan's Court. RECORDS. See Mortgage. REFERENCE.
N
Report of Referees fet afide, for ordering the parties to withdraw, and examining the witneffes in their abfence. 83
Report that “ Ł. 75 was due the 3d oƒ March laft, &c.” fet afide for incertainty. 119
Where the exceptions to a Report of Refer as arife from the fact of the report, and depend on a conftruction of law, they need not be filed in writing. 129.
Five feveral action being referred, and only one report, the report was confirmed, contrary to the opinion of SHIPPEN, Prefident. 143
₢uere, Whether Referees have authority to confolidate actions fubmitted to their decifion? 145. See 355
What kind of evidence may be admitted before Referees. 162
The admiffion of an interefted witnefs, will notice fuffcient to fet afide the Report of Referees. ibid.
An attorney's agreement to refer, binds his client. 164
The Courts have of late confidered awards with great latitude, according to the intention of the arbitrators, appearing from the words of the whole. 174
Two of the effentials in awards, are, that they fhould be certain and final. ibid.
An award to pay to the Prosecutors of J.G. deceafed, is fufficiently certain ; and it may be averred who they are by name. ibid.
Report fet afide for allowing en parte evidence to be given of the current price of coachmakers work, at the time the action were brought. 187
It is not fufficent to invalidate a report, that the Referees fent for the plaintiff alone, and afked him whether he would agree that a quarter (illegible text) which accrued after the action brought, fhould be credited to the defendant. {{line|188}
It is an invariable rule not to appoint Referees, but in the prefence of both parties. 251
Report of Referees fet afide for the error of the clerk in making out this rule or agreement to refer. 293
The different kinds of awards in Pennʃylvania. 314
If the Court would grant a new trial had the exceptions been made to a verdict, they ought for the (illegible text) reafons to fet afide a report. ibid.
Report of Referees fet afide, 1ft, Becaufe the Referees gave intereft upon an unliquidated account: and 2dly, Becaufe they allowed a charge of premium and commiffion for making infurance, without requiring the policy to be produced, or any proof of its being loft. ibid.
The Court have always confined themfelves to two points on motions. T t t, to
to fet afide reports of Referees: 1ft, Whether there in an evidence miftake in matter of ƒact; 2dly, Whether the Reference have clearly erred in matter of law. ibid.
The Court refufed the application of Referees for inftructions on a point of law. 347
Two actions between the fame parties on different promiffory notes being referred, the Referees made one report for one fum ; but, afterwards, filed a fupplementary report diftinguifhing what was due in each action: and, it was held, that the firft report could not be maintained; and that the fecond was irregular. 355
A rule of Reference to report to next term, does not authorife iffuing executions upon a report into oƒƒice during the vacation, although a term had intervened between the entry of the rule and the appointment of the Referees. ibid.
Where a report of Referees awards money to be paid on one fide, and certain other things to be done on the other, if the Court cannot enforce both, they will certainly enforce neither. 364
But though the Court may not be able to do this by execution, yet, if they can do it by attachment, the remedies are mutual, though not by the fame kind of procefs. ibid.
An attachment would ly for a contempt in not performing an award of Referees at common law, before the ftat. of 9 & 10 W. 3. ibid.
In all cafes, where matters are awarded to be done on both fides, the Court will exercife their equitable powers in fuch a manner, as not to fuffer either party to elude the performance of his part of the award. ibid.
If any part of an award he impoffible to be performed, the Court will refufe an attachment for that part. 365
It is too late to annul the rule for Reference, when the Referees have inveftigated the whole tranfaction, agreed upon their report, and were clear from any imputation of mifconduct. 430
Report of Referees fet afide, becaufe they declined to confider the moft material ground of the controverfy, upon a miftaken principle, leading to real injuftice to one of the parties. 486
REGULATORS. See Ejectment. Party-Wall.
RENT. See Ground-Rent.
ROADS.
The review of a road, though not taken notice of in the Act of Affembly, has always been granted, and is now become a matter of right. II
REPLEVIN.
There are no replevins in Pennʃylvania, either under the ftatue of Maribridge, or at Common Law ; but only under the Act of Affembly. 156
Replevins are made always returnable writs by the Act of Affembly, and the parties appearance required on the return. ibid.
The act directs Replevins to be determined in the Common Pleas. ibid.
Replevin lies in Pennʃylvania where-ever a man claims goods in the poffeffion of another. ibid.
Judicial writs de proprietate probanda cannot be iffued in Pennʃylvania. ibid.
The Sheriff, in an action of trefpafs brought againft him, cannot juftify under a writ of replevin, if he refufed the defendant in replevin a reafonable time to find fecurity, on a claim of property, before the goods in queftion were removed. 225
As the law given the remedy of a diftrefs to a landlord, it is incumbent upon the Sheriff to fee that the fecurity is good, before he returns the property on a replevin. 341
The value of he diftrefs at the time of the Replevin, and not the amount of the rent due, is the proper meafure of damages. ibid
Goods diftrained ought to be valued before they are delivered in replevin. ibid
The Sheriff is refponfible for the fufficiency of the fureties in a Replevin bond, at the end of the fuit, when the landlord has eftablifhed his right to the rent, for which the diftrefs was taken. 349
No evidence ought to be admitted to contradict the Sheriff's return of  Elengatur
Elengatur, after judgment de retorno babanda in replevin. 439
The goods of a ftarnger, being removed before the diftrefs cannot be purfued within the thirty days. 440
See Coʃts. Sheriƒƒ.
RESIDENT. See Privilege.
RETURN. See Replevin.
REVOLUTION. See Government.
SALE & DELIVERY. See Promiʃʃory Note.
SHERIFF.
I
A Diʃting will lie againft a Sheriff while in office, upon a return of levied to the value &c. 312
The Sheriff, under a Vend. Exp. muft fell not merely to the higheʃt, but to the beʃt bidder. 419
SLAVERY. See Maʃter & Servant.
SPECIAL COURT.
A Foreigner is not entitled to a fpecial Court, upon a debt affigned to him be a citizen. 169
The act for allowing fpecial Courts to plaintiffs, feems intended for the benefit of every man, who is about to leave the State. 267
See Lis Pendens.
SUBJECT. See Government.
SUMMONS. See Practice. Privilege.
SUBPŒNA. See Coʃts. Witneʃs.
SUPREME COURT.
A judgment cannot be entered in the Supreme Court, even in the county of Philadelphia, by warrant of Attorney, upon a bond oƒ a date prior to the act of Affembly. 291
As by that act, the original jurifdiction of the Court is reftricted to the county of Philadelphia, a judgment cannot, at any fubfequent period, be entered as of Bucks county. ibid.
This Court has authority upon appeal, to alter and confirm any proceedings that come properly before the Comptroller General, but if he had no jurifdiction, the Court can have none: 362
As the Comptroller General, therefore, has no right to adjudge a compenfation from the ftate ƒor damages, which individuals have fuffered in the courfe of our military operations, the Court can grant no relief upon appeal, although the applicant might be entitled to it in equity. ibid.
See Comptroller General.
TENDER.
T
Therefore, a tender in Continental money, emitted by Congrefs beƒore the 29th oƒ January, 1777, is tantamount to payment. 407. 8
But a tender in Bills of Credit emitted ʃubʃequent to the 29th oƒ January, 1777, has only the effect of a tender at common law. ibid.
See Payment.
TITLE. See Evidence. Ejectment.
TREASON.
A perfon accufed of high treafon, fhall have a copy of the indictment, a reafonable time, not lefs than one day, before the trial : and alfo, within the fame time, a cafe of the pannel of the jurors. 33
Adherence to American troops, though in confequence of miftaking them for the enemy, cannot be treafon. ibid.
Words indicating the defendant's intention to join the enemy, are proper teftimony, to explain the motives upon which that intent was  afterwards
afterwars carried into effect. 33
Evidence may be given of an overt act committed in another county, after an overt act is proved to have been committed in the county where the indictment is laid. ibid.
Evidence that the defendant had a power to let people in and out of the city, when in poffeffion of the enemy, ought to be received ; butnot as conclufive proof of his holding a commiʃʃion under them. 35
But evidence of his feizing falt, or difarming the Americans, does not apply to that fpecies of treafon ; tho’ it may prove his having joined the armies of the enemy. ibid.
It is enough to lay in the indictment, that the defendant fent intelligence, without fetting forth the particular letter or its contents. ibid.
The charge of levying war, is not, of itfelf, fufficient ; but affembling, joining, and arraying, with the forces of the enemy, is a fufficient overt-act of levying war. ibid.
There muft be an actual enliftment of the perfon perʃuaded, in order to make it treafon in the perfuader. 39
If an overt-act has been proved where the indictment is laid, the defendant's confeffion may be given in evidence to corroborate that proof. ibid.
Treafon is a crime known at the common law. 53
Treafon, which is nothing more than a criminal attempt to deftroy the government, may be committed before the different qualities of the crime are defined, and its punifhment declared by pofitive law. 57
See Treaty oƒ Peace.
TREATY OF PEACE.
After the peace, the Court would not fuftain a fuggeftion filed by the Attorney General, againft one who attainted in purfuance of a proclamation iffued during the war ; as a proceeding of that kind would contravene an exprefs article in the treaty with Great-Britain. 233
TRIAL.
The trial of a mifdemeanor put off on affidavit of the abfcertain of a material witnefs ; but declared not to be a precedent. 9
The Court would not force the Crown to a trial, or difcharge the defendant: from bail, without fome appearance of oppreffion. ibid.
The ftat. 28 Edw. 3. c. 13. granting trials per medictatum lingue to foverigners, is in force in Pennʃylvania. 73
The affidavit of one who was landlord to the defendant in ejectment, admitted on motion to put off the trial of the caufe. 81
On affidavit of the abfence of a material witnefs, the court put off the trial, refufing to enquire what his teftimony would be. 135
The affidavit of a perfon eventually interefted in the fuit, proving the want of a material witnefs, is fufficient to put off the trial. ibid.
Granting new trials depends on the legal difcretion of the court guided by the nature and circumftances of the particular cafe. 234.
See Inʃtant. Error. Practice.
UNDERWRITERS.
See Inʃurance.
UNITED STATES.
F
It was agreed in Congrefs when the Britiʃh army evacuated Philadelphia, that all the public property of the enemy, fuch as canon, &c. fhould belong to the United States ; and the private property of individuals to Pennʃylvania. 71
Congrefs during the late war, might lawfully direct the removal of any articles that were neceffary to the maintenance of the Continental army, or ufeful to the enemy, and on danger of falling into their hands ; for they were vefted with the powers of peace and war , to which this is a natural and neceffary incident. 362
See Law oƒ Nations. Government. Treaty oƒ Peace. Judgment.
USURY.
Where a partial payment is made and received, on account of a (illegible text) given for the payment of money borrowed at ufurious intereft, the ufury is complete. 216  Proof
Proof of a note given by one of two partners, for the payment of money borrowed an ufurious intereft, and afterwards paid, will not fupport account, ftating the ufurious contract to have been with the partnes jointly. ibid.
Although no money is actually paid, the ufury is complete, when new notes are taken in fatisfaction of old ones given for the payment of money borrowed at a ufurious intereft. ibid.
A fair purchafe may be made of a bond or note, even at 20 or 30 per cent. difcount, without incurring the danger of ufury. 217
VERDICT.
S
WARRANT OF ATTORNEY.
A
₢uere Whether a warrant of attorney to confefs judgment in the court of Common Pleas, will authorife its being confeffed in the Supreme Court. 288
SeeJudgment. Supreme Court.
WILL.
It is not neceffary that a will devifing real eftate fhould be fealed. 94
Nor that all the fubfcribing witneffes fhould prove the execution. ibid.
Nor that the proof of the will fhould be made by thofe who fubfcribed as witneffes. ibid.
Nor that the will fhould be fubcribed by the witneffes. ibid.
Two witneffes are neceffary to the proof of every teftamentary writing, whether for the difpofition of real or perfonal eftate. 286
See Adminiʃtrator. Deviʃe.
WITNESS.
The defendant is not a competent witnefs to prove the perfon profecuting it muft be done by indifferent witneffes. 6
In an action on a Policy of Infurance, the Captain of the fhip, having goods on board, and infured by other underwriters, who refufed to pay ’till the determination of this fuit, was examined on this veir dire, and, fwearing himfelf difinterefted, he was fworn in chief. 7
The plaintiff's brother was offered to prove his age, form the hearfay of his father and mother ; but the Court would not allow him to be fworn. 9
If a man thinks himfelf interefted, though, in fact, he is not, this is fufficient to exclude his teftimony. 62
An informer, on the feizure of contraband goods cannot be a witnefs, although he releafes his right to the moiety. 63
Where a party calls a witnefs, who is contradicted by another witnefs of his own, he cannot call the firft to difprove what the fecond has faid. 63
₢uere, Whether a confidential clerk or agent comes within the rule refpecting counfel and attornies not being permitted to difclofe the fecrets of their clients. 66. 439
Wife of the profecutor in an indictment of ƒorce ; but only the force. 68
On an indictment for forgery, the party whofe name is forged, is a good witnefs. 110
That referees have heard an interefted witnefs, is not a fufficient caufe to fet afide their report. 161
The fubfcribing witneffes to a promiffory not muft be produced, or fome account given of them at the trial. 209
In an action brought by the indorfee of a bill of exchange againft the firft indorfer, the plaintiff's immediate preceding indorfer cannot be made a witnefs by ftriking his name off the firʃt and third bills of the fet, although it is fuggefted that the ʃecond bill was loft. 272
There are two ways of proving a witnefs to be interefted; 1ft by examining him on his voir dire ; and, 2d. by evidence ; but both cannot be purfued at the fame time. 275
A crofs examination under a rule for taking depofition will not amount to an examination of the witnefs on his voir dire ; nor preclude any exception
 to
to his competency at the trial. ibid.
Under what circumftances a witnefs once interefted, may ceafe to be fo. 272. 276
In what cafes it is, or is not, neceffary to take out a Subpœna for a witnefs. 276
See Agent. Will. Evidence.
WORDS.
The word purchaʃe, implies a purchafe in fee. 20
The word perʃuading (illegible text)in the act with refpect to treafon, means to ʃuceed. 39
Though in actions of flander words were formerly conftrued in the mildeft fenfe that they would admit, they are now to be taken according to their ordinary import and meaning. 114
See Aʃʃignment
WRIT OF ENQUIRY.
The court will not fet afide the verdicts of juries of inquiry upon leivolus grounds, nor examine the effect of any particular piece of evidence on the mind of the jury ; for unlefs it appears, that there was no proper evidence, the court will prefume that they had fufficient grounds for their inqueft. 82
After judgment by deƒaults the defendant has a right to offer his evidence to the jury of inquiry to combat the plaintiff's proofs ; and if the fheriff refufes to here the evidence on both fides, the court will direct a new writ of enquiry. 377
But after judgment in a ƒoreign attachment, the defendant in the attachment is not entitled to produce evidence before the jury of enquiry. ibid.
There is nothing in the act of affembly which precludes the fheriff from holding an inqueft after the return of the Fi.ƒa. 379
An inquifiton quafhed for irregularity becomes a nullity, and leaves the cafe juft as if none had been taken. ibid.
ERRATA ET ADDENDA.
Page 2. Bethel's Leʃʃee vs. Lloyd et al for “ non tenuit,” read “ non tenet.”
81. In not. for “ Venire ƒacias,” read “Scire ƒacias.”
90.In the firʃt line read “ on outlawry ƒor felony.”
167. Inʃtead of “ Belt vs. Dolby,” read “ Pirate, alias Belt, vd Bolby. ”
175. Lee vs. Biddis. In the firʃt line of the caʃe, read “ Plaintiƒƒ” inʃtead of “ Deƒendant.”
185. Purveyance et al. v. Angus. After the deciʃion of the court delivered by the Chieƒ Juʃtice, and before the motion for a rehearing, introduce the following ʃentence:––“ATLER, and “RUSH, Juʃtices, diʃʃented from thiʃ opinion of the Court, for “reaʃons which they aʃʃigned separately and at large.”
187. Hooton v. Will : inʃtead of “ Foreign attachment,” read “ Domeʃtic attachment.”
188. Finis v. Miller. Inʃtead of “ Hurton's Leʃʃee” read “Baron's Leʃʃee. "
252. In the 26th line, inʃtead of “ a note is diʃcharged,” read “ a note is not diʃcharged.”
295. Morgan v.Eckhart et al. In the third line, read “Berk's ” inʃtead of “ Bucks.”
343. In the 34th line, read “ by, ” inʃtead of “be.”
384. In the 12th line from the bottom of the page, read “ Comiʃʃioners,” inʃtead of “ Company.”
430. Inʃtead of “Levine v. Will, ” read “ Levinz v. Will.”