1799. Lessee of v. HICKS. แ attainder for high treason; but she shall hold them discharged of his right to tenancy by the curtesy. Lands intailed were not forfeitable at common law or by 25 E. 3. c. 2. on attainder of the PEMBER- tenant in tail for high treason, saving only during the life of the TON tenant in tail. 3 Inst. 19. By stat. 26 H. 8. c. 13. every person attainted of high treason "shall forfeit to the king all such "lands, tenements and hereditaments which he shall have of any "estate of inheritance, use or possession, by any right, title or means.” It has been adjudged that by force of the words “of any estate of inheritance," estates tail are forfeited, because these words would be void if they did not include estates tail; for estates in fee simple were forfeited before. 2 Hawk. 452. 2 Bac. 580. Co. Litt. 372. b. And by stat. 33 H. 8. c. 20. “If any person is attainted of high treason by common law or 46 statutes; every such attainder by the common law shall be of "as good strength, value, force and effect, as if it had been done "by authority of Parliament. And the king shall have as much * benefit and advantage by such attainder as well of uses, rights, "entries, conditions, as possessions, reversions, remainders and "all other things, as if it had been done and declared by autho"rity of Parliament." The words of each of these acts of parliament are more extensive than the words of forfeiture by the common law. The words in the first act have been held to extend to estates tail. The words in the second act will include tenancy by the curtesy; for baron by having issue is entitled to an estate for term of his own life in his own right. The words of the act of assembly by which Joseph Galloway was attainted are still far more extensive than the words of these statutes. The legislature could not have used more comprehensive general words to embrace the subject matter in question. It necessarily follows that Joseph Galloway forfeited all his estate and interest in the premises for the term of his own life. Therefore from either point of view, and especially from the last, my opinion is that judgment be given for the defendant. Judgment for Plaintiff. MYERS against URICH. 1801. Monday, THIS HIS was an action of debt on a bond, brought in the Com- December mon Pleas of Dauphin county to November term 1792;28th. and the plea was payment, with leave to give in evidence a pay- If the garniment under a foreign attachment. shee in a fo ment pay plaintiff the process of Upon the trial of the cause before Yeates and Smith Justices, reign attachat a Nisi Prius in October 1799, the following facts were in evi- over to the dence. A foreign attachment, returnable to February term 1790 debt attachissued at the suit of James Kelly assignee of Abraham Ebersolled, without being comagainst Myers the present plaintiff; by virtue of which the pelled so to amount of a bond owing to Myers but not yet due, was attach- do by due ed in the hands of Urich the obligor. In this attachment no law, and declaration was filed, and judgment was rendered in the fol- without requiring the lowing August. On the 18th of September in the same year stipulation Urich paid Kelly nearly the whole amount attached. A scire ordered by facias to August term 1791 then issued against the garnishee, sembly, it upon which judgment was rendered in November, with a stay will not dis. charge him of execution during six weeks; after the expiration of which from the ori time, but without execution, the residue of the bond was paid by ginal debt. Urich. No security however was found according to the act of Assembly, 1 St. Laws 60. to answer to Myers if within a year and a day he should disprove or avoid the debt &c. The plaintiff Myers proved a good defence to the demand of Kelly; and it appeared to the jury that by articles of agreement between Myers and Kelly, Kelly had covenanted to pay to Ebersoll the very bond upon which he as assignee had brought the foreign.attachment. A verdict was accordingly taken for the plaintiff subject to the opinion of the court in bank, whether such a payment as Urich had proved was a good defence to the demand of Myers. Duncan for the plaintiff. The precipitate and voluntary payment by Urich before execution, or scire facias, or the conditional security being entered, was made in his own wrong. Unless the proceedings were regular the garnishee could not have been compelled to pay; and not being compelled to pay, this must assume the character of any other voluntary payment to a third person If we adopted special pleading in its rigour, the VOL. D act of As 1801. MYERS υ. defendant would be forced to set out all the proceedings in the attachment, Baker v. Hill (a); that the act had been strictly pursued, Scarpe v. Young (b); that pledges had been URICH. found, 1 Brownl. 62. Dyer 196. pl. 42.; and that execution had issued upon the judgment, Spink v. Tenant (c). If this plea were effectually traversed, the garnishee would be compelled to pay the money over again; and he is bound to the same proofs under his plea of payment that would be required under the special plea. It is essential that the payment should be drawn from the garnishee by execution alone; for from the time of the execution the year and day runs, Lewkner v. Huntley (d); and if the money be paid before, by so much is the period abridged within which the defendant may resort to the pledges. The law is with Myers, because Urich has no legal defence unless he was compelled by due process of law to pay Kelly; the equity is also with him, because Myers owed nothing to Kelly, Kelly was trusted by Urich, and Urich should support the injury of his own act. the Ingersoll who was to have argued for the defendant gave up cause; and Per CURIAM. The ground of the defence is that Urich was compelled by due course of law to pay the amount of the bond to the plaintiff in the foreign attachment; but the fact is that he was not compelled by due course of law; for he could not be legally compelled unless the proceedings against him were regular, and the security required by the act of Assembly was duly entered. (a) 3 Keb. 627. Judgment for Plaintiff. (c) 1 Roll. Rep. 105. JORDAN against MEREDITH. 1801. Monday, December SUFFICIENT number of special jurors not appearing 28th. then sworn as a tales A in this cause, a tales was awarded; whereupon the trial If a juror is struck from proceeded, and the jury found a verdict for the plaintiff. A mo- the special tion for a new trial was then made by M. Levy for the defendant, jury list, and upon the ground that one of the jurors who had been struck the from the special jury list by the defendant was sworn as a man with the talesman and tried the cause; which circumstance he argued of the party knowledge was a sufficient ground for a new trial, although the verdict who struck might in other respects be satisfactory to the court. He cited cannot on Parker v. Thornton (a), and Hungate v. Hamond (b). But The COURT being satisfied that the error was known to the defendant at the time it was committed, he himself having struck the juryman from the list, thought the objection came too late, and refused a Rule. him off, he that account object to the verdict. LEVY against The President, Directors and Company 1802. THIS of the Bank of the United States. Monday, May 3d. The entry of by a Bank in the private the holder, is HIS cause was tried at Nisi Prius after March term 1802, a check as before Shippen C. J. and Smith J. when the following facts cash, made appeared in evidence. Joseph Thomas passed away to the plaintiff a check upon bank book of the Bank of the United States for $2600, dated the 31st July equivalent to 1798, and purporting to be drawn by Charles Wharton in payment; favour of Joseph Thomas or bearer. On the 3d of August check is a 1798, between eleven and one o'clock, the check was presented forgery, of at Bank by Mr. Levy's clerk; and was entered by the receiving holder was teller to Mr. Levy's credit in his bank book as cash. It was also ignorant, the entered on the scratcher of the Bank, and in the cash book, and and if the which the Bank must support the loss. It seems that the acceptor of a forged bill is bound to pay it, not upon the principle that his acceptance has given a credit to the bill, but because it is his duty to know the drawer's hand writing which he is precluded from disputing. If a forged check is credited as cash in the holder's bank book, and afterwards upon being informed of the forgery, and under a mistake of his rights he agrees that if the check is really a forgery it is no deposit, be is not bound by the agreement. 1802. LEVY υ. was credited to Mr. Levy and charged to Charles Wharton, according to the usage of that institution. On examining the checks of that day between three and four o'clock in the afterBank U. S. noon as was customary, this check was discovered to be a forgery; the credit to Mr. Levy in the cash book of the Bank, and the charge to Mr. Wharton were respectively struck out, and the entry in the scratcher left as it was. This was proved to be the usual mode of correcting such mistakes in the Bank. As soon as the discovery was made, one of the clerks of the Bank was sent to the plaintiff to request his own check in lieu of the other. The plaintiff asked the reason of this request, and was told by the clerk that Charles Wharton had not money enough in Bank, although the fact was otherwise. The plaintiff replied "That is nothing to me." The clerk then told him the check was a forgery. The plaintiff was much surprised and said he would "take till the next day to consider of giving another "check in lieu of it." The clerk told him he might as well give it then, for although not authorized by the cashier, he was certain the plaintiff's check would not be received at Bank on that deposit. The plaintiff then made answer "On that score we "are perfectly agreed. If the check is a forgery, which is all I "wish to ascertain, it is no deposit." On the next day Mr. Levy told the Bank that he would not refund the money, and that he would not give them his bank book for the purpose of erasing the entry. He then drew a check on the Bank for $2600, the amount of this deposit (an undisputed balance having been previously paid to him) which was regularly protested for nonpayment, and this suit immediately instituted to recover the sum in question as money had and received and money lent and advanced. Thomas's forgeries, of which this was said to be one, were known by several persons on the 31st July and 1st August, but not generally disclosed until the afternoon of the 3d August, in the evening of which day he assigned his property for the benefit of his creditors, and absconded. M'Kean (attorney general), Dallas, and Ingersoll, for the plaintiff; Rawle and Lewis, for the defendants. For the plaintiff it was contended that his claim to a recovery of the money was good upon several grounds. 1st, The entry in his bank book was equivalent to an actual payment by the Bank, or to a deposit of cash: at all events it was an acceptance |