1808. KETLAND V. of the court; for the recognisance is gone. It is not as if it were in force, and the bail applied for a discharge; but it is as if an execution had issued upon a judgment that had been paid. Lisle however has no equity; he made the agreement without MEDFORD. the privity of Medford; and after having discharged the recognisance, he wishes to set it up. If he can do it now, he may at any distance of time, and may constitute himself the gaoler of Medford whenever he pleases. TILGHMAN C. J. delivered the judgment of the court. This is a motion on the part of the defendant to have an exoneretur entered on the bail-piece; the bail not joining in the motion, but opposing it. The court have no doubt of their authority to enter an exoneretur, if a clear case was made out. But the counsel of the defendant have shewn no precedent going the length they ask. Without entering into a detail of the facts, this case presents two striking features: one that the bail has paid a large sum on account of the defendant; the other that the defendant has not paid one farthing. Nor has he yet been taken by the bail. In this situation the court think it would be wrong to interfere in this summary manner. If hereafter the defendant should be taken by the bail, and it shall be made to appear that the bail-piece is used for oppressive and unjust purposes, it will be in the power of the court to grant relief. The court are of opinion that the motion be rejected. Motion denied. Insurance Company of Pennsylvania against KETLAND. 1809. Wednesday, HE household furniture of the defendant was taken under Where the THE sheriff a fi. fa., and the sheriff at this term returned his writ levies "levied as per inventory." Before the levy, the sheriff had upon goods been indemnified by the plaintiff; and after the return, a venditioni exponas issued, returnable at next March term. On former day a motion was made on behalf of the sheriff to amend in the defendant's a possession, the court will not stay proceedings and direct an issue to try the property, upon an allegation that the goods belong to a third person. 1809. his return, by adding" that the goods mentioned in the invenIns. Co. of "tory, were, at the time of the levy made, claimed by James PENN. "Lyle and others as their property, by virtue of an assignment "by the defendant, dated the 4th of January 1806;" and upon an affidavit that it was his intention at the time to make this addition a part of his return, but that it was omitted by accident, the court after argument permitted the amend υ. KETLAND. ment. Tod, for the defendant, now moved the court to stay proceedings on the execution, and to direct an issue to try in whom was the property of the goods. He said that the sheriff himself had the power to impanel a jury for this purpose if he doubted of the property, 2 Bac. Abr. 715.; and that the court should exercise the same power under the circumstances of this case, though the sheriff should choose to decline it. The COURT asked whether a precedent for such a motion was any where to be found; and told the counsel that if they thought there was, they should have time to search for it, though it was the last day of the court's sitting; but the counsel answered that they were not aware of any precedent, and therefore would not ask for time. Whereupon PER CURIAM. Ingersoll with Tod. Dallas contra. Motion denied. END OF DECEMBER TERM, 1808. MARCH TERM, 1809. THOMAS SMITH Esq., one of the Judges of this court, died on Friday the 31st of March 1809. APPOINTMENT: Between December and March terms, WALTER FRANKLIN Esq. to be Attorney General. 1809. Delaware Insurance Company against GILPIN. THIS Tuesday, of debt dis HIS was an action of debt upon a bond, brought and In an action defended by attorney in the common pleas, and then continued removed by hab. cor. to this court, where it was discontinued; after the first the defendant agreeing to pay costs. The question submitted the defendto the court was, what costs were due to the plaintiff's agreeattorney. court upon ant's ment to pay costs, the plaintiff's attorney is in actions withstand act of 21 Condy read the 5th sec. of the act of 21st March 1806. entitled to 7 St. Laws, 562., which directs that "the plaintiff's attorney the fee due "shall not be entitled to a judgment fee in any action of debt;" ended after and also the act of 20th April 1795, for establishing an explicit the first court, and fee bill, 3 St. Laws 775. sec. 1., which allows to attorneys in before judgthe common pleas for issuing præcipe &c. in suits ended the ment, notfirst court 1 doll. 67 cts., if after the first court, the further ing the 5th sum of 1 doll. 66 cts., and for every suit prosecuted to judg-sec. of the ment, discontinuance &c. four dollars; in this court, double. March 1806. He contended that the act of March 1806 did not extend to Qu. Whether that an action of debt conducted like this by attorneys, but to such section takes only as was prosecuted or defended by the party himself; and away the judgment that of course the plaintiff's attorney was entitled to full costs, fee in an acas though that act had not been passed; or at all events that tion of debt the judgment fee taken away, was merely the sum of five shil- and defendlings, which added to the two sums of 12s. 6d. before given, attorney. ed by made the four dollars; and that those two sums were still left to the attorney. prosecuted 1809. DELA- PER CURIAM. It is not necessary to decide whether the provision of the act of 21st March 1806 extends to such an action of debt as this; but as no judgment has been entered in Ins. Co. this case, it is not within that clause of the act which has been read. The plaintiff's attorney is entitled to the fee due in actions ended after the first court and before judgment. v. GILPIN. Saturday, On the same evening, after a consi dict is obtain all his pro WILT against FRANKLIN, Assignee of KEELY. HE plaintiff Wilt levied upon the property of Keely, which he had previously assigned for the benefit of his crediderable ver- tors; and the proceeds of sale were paid to Keely's assignee by ed against 4, the sheriff. Mr. Franklin conceived himself entitled to distrihe conveys bute the money agreeably to the assignment; Wilt denied the validity of the assignment, and claimed the money exclusively. trustee of his To determine these conflicting pretensions, this action for mofor the bene-ney had and received was agreed to be entered, and tried under fit of all his the general issue, which accordingly was done before Yeates J. at a nisi prius in February 1807, when the jury returned the following special verdict. perty to a own choice, creditors, in equal proportions. The trustee lives at a dis tance, and until four he assents. The jury find "that an action on the case was instituted does not hear in the supreme court of Pennsylvania by the said Abraham of the deed Wilt against the said Matthias Keely; and that on the 3d day days afterof March 1804, at a court of nisi prius holden, &c., a jury wards, when duly sworn and affirmed found by their verdict to be due to No possesthe plaintiff Wilt, by the defendant Keely, the sum of 9,062 sion of the ti- dolls. 15 cents. That this verdict was given in at about 4 o'clock given until P. M. of Saturday the said third day of March in the same year. That immediately afterwards, on the afternoon of the same day, by directions of a certain Charles P. Heath, the the debtor son in law of the said Matthias Keely, and on his behalf, a cerpossession oftain deed of bargain and sale was drawn by a scrivener in the the furniture said city, for the purpose of transferring the real and personal and goods, tle deeds is nearly two af months a ter; and continues in the next day after the ex ecution of the deed, which was Sunday, and part of Monday, when they are seized in execution. The deed contains no schedule of property, and no limitation of time, for distributing the estate. Held, that it is a valid deed, and takes effect from its execution, as the assent of the trustee is presumed; delivery of title deeds is unnecessary, and nondelivery of goods is explained. If a bargain and sale recite a consideration of money, and the jury find no money was paid, this part of the verdict goes for nothing. No averment lies against such a recital in the deed. 1809. WILT V. estate of the said Matthias Keely to a certain John Bartholomew; and on the night of the same day between 9 and 10 o'clock P. M. the said deed of bargain and sale was signed by the said Matthias Keely and wife, in the presence of two witnesses, FRANKLIN. and acknowledged before Frederick Wolbert, esquire, in the same room, and immediately after the signing. That the said John Bartholomew was not present at the said time and place of signing, nor had he any knowledge beforehand that any such deed was to be, or would be, executed. That the said John Bartholomew was not a creditor of the said Matthias Keely. That he resided at that time in Chester county, in this commonwealth, at the distance of about three and twenty miles from the city of Philadelphia aforesaid, and never heard or knew of the said supposed assignment until Wednesday, the 7th day of the same month of March, when the same was shewn to him at his dwellinghouse in the said county of Chester, by a certain George Dantzman, who was sent to him with the assignment and a letter by the said Keely. That the said John, on receiving the said letter and assignment, said to the said George, after perusal of the said papers, that he was a friend of Mr. Keely's family, and was willing to oblige him in this respect: that he was very willing to serve, but that his illness would prevent him from coming to the city." The jury further find “that no money was paid to the said Keely by the said Bartholomew on the said 3d of March, or at any time afterwards; and that no possession of the goods or lands, books or writings of the said Matthias Keely was delivered by him to the said John, on the said 3d day of March, or at any time afterwards. That the family of the said Matthias continued to reside in his said dwellinghouse after the said supposed assignment; and that the said Matthias continued in possession of his goods and furniture until Monday the 5th day of March aforesaid, when the sheriff of the city and county of Philadelphia levied on the goods and furniture of the said Matthias, at the suit of a certain Peter Berthon and son, and took the same into custody." The jury further find "that on Monday the 5th day of March in the same year, being the first day of the March term of the said supreme court, judgment was entered in the same court, on the said verdict, against the said Keely. That on the 7th day of the same March, the same Matthias Keely was arrested and confined for debt in the prison of the city and county of Phi |