Buffington; that about three or four weeks before the date of the warrant, the prisoner had removed from Chester county into the Delaware state: that he was born in Chester county, and had resided there from the year 1776, to the time of his said removal; and that he was the only person of that name in the county. On the other hand, however, all the witnesses agreed, that Joshua Buffington had never lived in East Bradford, but always in West Brandford township, which were distinct townships to every intent and purpose. 60*] and still adhered to them. The validity, May, 1780, a warrant issued to apprehend Joshua and operation of the law, however, the prisoner is now precluded from controverting, if, at any time before the date of the proclamation, he was a subject of the state of Pennsylvania. Here, then, the matter rests. Had the issue been in the disjunctive, the prisoner would clearly have come within the description of an inhabitant of Pennsylvania; but when the word subject is annexed, it means a subjection to some sovereign power, and is not barely connected 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. On Lewis and Ingersol, for the Defendant, conthis point, therefore, we must again advert to tended that this variance between the proclamathe act of Assembly, declaring what shall be tion, and the proof, was fatal to the proceedtreason, which has no retrospect, and to the actings; and cited 2 Haw. 186. s. 119. 120. 121. id. for the revival of the laws, which implies a sus- 189. 8. 121. pension of all the laws from the 14th of May, 1776, to the 11th of Feb., 1777. If there were no laws to be obeyed during that period, the prisoner could not be deemed a subject of the state of Pennsylvania on the 26th day of December, 1776. Whether the Legislature meant to include this case we will not positively determine; it is a new one, and we ought to tread cautiously and securely: But, at all events, it is better to err on the side of mercy, than of strict justice. The Jury found a verict of not Guilty.1 SEPTEMBER TERM, 1781. RESPUBLICA v. JOSHUA BUFFINGTON. Outlawry. Where A. B. of West Bradford was required to surrender himself by the name of A. B. of East Bradford, etc., the variance was held to be fatal. TH HE Attorney General filed a suggestion, stating, that Joshua Buffington, of the county of Chester, yeoman, being a subject, or inhabitant of the state, was by proclamation of the Supreme Executive Council, dated the 2d of October 1780, required in pursuance of the attainder law, to surrender himself to a Justice of the Supreme Court, &c. on or before the 13th of November, 1780, to abide his legal trial for the treasons in the proclamation mentioned, &c. That the said Joshua Buffington did not surrender himself, &c. whereby he is attainted, &c. and he prays an award of execution. 61*] *Joshua Buffington, the prisoner, pleaded, ore tenus, that he is not the Joshua Buffington, in the proclamation named, and was not required to surrender himself, &c.-On which the Attorney General replied, that the prisoner at the bar is the same Joshua Buffington in the said proclamation named; and thereupon issue was joined. The proclamation being produced on the trial, it appeared, that Joshua Buffington, now, or Late of the township of East Bradford, yeoman, was therein required to surrender himself, &c. according to the terms of the suggestion. The evidence was this:-That on the 16th of 1.-See 3 Dall. Rep. 54. The Attorney General insisted, however, that the only questions to be determined, were, first, whether the prisoner is the Joshua Buffington whom the Executive Council intended to call upon to surrender, &c.; and, secondly, whether he is so described, that the description cannot apply to any other person; and he cited, Fost. 79. 87. 3 Bac. 617. 107. 103. But, BY THE COURT:-Although it may be allowed, that the Legislature is not bound to the same strictness, that is required in the descriptions of all indictments; yet, we are inclined to think, that the Executive Council is so bound. Even in the case of a pardon, if the person intended to be benefited were named of a wrong township, the effect of the pardon would be extremely doubtful. On the present occasion, though Joshua Buffington of East Bradford was called upon to surrender himself; yet, Joshua Buffington of West Bradford certainly was not; and there is ground for a presumption, that the prisoner did not think he was the immediate object of the proclamation. The Court are, therefore, of opinion that the identity is not sufficiently established. The Jury found a verdict, upon the issue, in favour of the Defendant; and he was thereupon discharged. In September, 1782, however, he was tried for the offences alleged against him, and acquitted. But the Court ordered him to give security to be of good behaviour, and keep the peace, during the war with Great Britain. In support of the information one Scull was called as a witness, who, being examined on the voire dire, said that he assisted in making a seizure of the goods; and, in case they were condemned, but not otherwise, he expected some compensation from M' Veaugh's generosity, although he had received no certain promise of that kind. Lewis, for the claimants, contended against the admission of Scull's testimony; and urged that if a man, who is not, in fact, interested. apprehends himself to be so, he will naturally be biassed in favour of that side, on which he presumes his interest to ly; which is a sufficient cause to disqualify him as a witness. See Stra. 129. Sergeant, for the informant, likened this to the case of an heir, who expects to be benefited by his father's estate, yet as that really depends on the will and pleasure of the father, it is no ground to prevent his being a witness. Scull has no certainty of reward; he has not even a promise; and, whatever may be his expectations, the matter still depends entirely on the will and pleasure of the informant. APRIL TERM, 1782. M'DILL'S Lessee v. M'DILL.1 A deed with an ink seal attested by one witness only, and proved by him before a justice, without having been recorded, admitted in evidence. A DEED executed by two persons, with one wax, and another ink seal, attested by one witness only, and merely proved by him before a Justice, without being recorded, was offered in evidence. It was objected, that by the act of Assembly, 1 St. Laws, 78. a deed must be executed before, and be proved by, two witnesses; and that even that kind of proof was not to be received, unless the party was dead, or otherwise unable to appear and acknowledge the execu- [*64 tion; which was not the case of the lessor of the Plaintiff when the deed was actually proved before the Justice. To this it was answered, that the act of Assembly only related to the proof which entitled But, BY THE COURT:-It nearly concerns the a deed to be recorded, &c. that many deeds administration of justice, that witnesses should might be given in evidence, which were not so be free from every kind of bias. It is true, that entitled; as in the case of a long possession Scull has no positive promise of a reward; but, under an old deed. Another act declares that we think, the expectation which he acknowlone, or more subscribing witnesses is sufficient, edges, in case the goods shall be condemned, 1 St. L. 520. and it is established, that the atmust create such an influence in his mind, as testation of witnessess is not of the essence of renders it improper for him to give testimony on this occasion. Lewis offered in evidence a pass from a Justice of New Jersey, permitting the goods in question to be conveyed through that state. Sergeant objected, that the pass of a Justice of New Jersey, could not be given in evidence to defeat an act of the Legislature of Pennsylva nia. To this Lewis replied, that it was offered merely to obviate any imputation of fraud in concealing it. the deed. Before the stat. of frauds, the necessity of subscribing witnesses to any instrument, did not exist in England; and there is no instance in which the Legislature of Pennsylvania has expressly called for the attestation of two witnesses, but in that of the assignment of a bond. BY THE COURT:-The signing of a deed is now the material part of the execution; the seal has become a mere form, and a written, or ink seal, as it is called, is good. Any deed under seal, when proved, is proper to be given in evidence. 6 Mod. 45. And, we are of opinion, But, BY THE COURT it was declared, that the that a deed, the execution of which is sworn to pass was not admissible as evidence.1 by one witness before a magistrate, who certifies the same, is within the rule. Besides, the last act of Assembly certainly allows the proof of one witness to be sufficient.2 S 3d. That by the act of Assembly, the Judge who tries the cause not being authorized to cer- 1st. The Plaintiff, in order to shew that the tify, so as to exempt the informer from the pay-persons under whom he claimed were original ment of costs to the claimants, he cannot certify. 4th. That where the informer called a witness, who was contradicted by another witness of his own, he cannot call his first witness to disprove what the second has said. Lewis for the Claimants-Blair for the Informer. 1.-2 Vol. 50. 239. purchasers from William Penn, the proprietary, offered in evidence a paper from the proprieta ry's, (or rather Surveyor General's) office, containing the list of names of such persons as were 18th May, 1781, before M'KEAN, C. J., ATLEE and EVANS, Justices. 1.-This cause was tried at Lancaster, N. P. on the 2. See post. Hamilton's Lessee v. Galloway. S. P. original purchasers; and therein were the names of those from whom the Plaintiff derived his title. It was objected to, because the deeds themselves ought to be produced, as it did not appear that they had been destroyed. But it was answered, that the lot in question is appurtenant to a large tract of land, and that the deeds are in the possession of the owners of that large tract; for, on the settlement of the province of Pennsylvania, every one who bought 5000 acres of land in the country, was entitled to certain lots within the city, which became afterwards separated. And, BY THE COURT:-The objection is overruled, and the paper allowed to be given in evi dence.1 65*] *2d. The Plaintiff produced the Proprietary's warrants to make a survey of the lands in question, for a person under whom he now claimed, without shewing any actual survey, but only a paper in the nature of a certificate from a former surveyor general, stating that such survey had been made. It was opposed, because the present surveyor general (Lukens) swore that there was no such survey in the office; that surveys of other lots were wanting, and that this paper was copied from a book in the office. THE COURT ruled, that the paper should not be given in evidence, being only the copy of a copy; but that the book from which it was taken might be read to the Jury: And it was said by M'KEAN, C. J. that the Court has a discretionary power to admit circumstantial evidence of the existence of a record. Aleyn. 18. 3d. The Plaintiff offered to prove that certain deeds, necessary to make out his title, were in the hands of, and detained by, the heirs of Israel Pemberton, under whom the Plaintiff insisted that the Defendant was only a lessee; and also to give in evidence sundry letters written by the said Pemberton. It was objected, that the Defendant is not to be affected by the conduct of a third person. To which the Plaintiff's Counsel answered, that they undertook to prove, that the Defendant is no more than a lessee from the heirs of Pemberton; and the possession of the lessee, is the possession of the person entitled to the reversion. But for the Defendant it was still urged that his title is not to be made out by the Plaintiff; that he rests upon his possession; and that till the Plaintiff can make out a good title of his own, the Defendant's possession is good against him; for the Plaintiff must recover upon the strength of his own, and not upon the weakness of the Defendant's title. But by M'KEAN, C. J. The Plaintiff does not mean to shew the Defendant's title, but only his possession, which is admitted by the record; if Israel Pemberton was Defendant, it would be good evidence against him, and, if the Plaintiff proves that the Defendant is in under Israel Pemberton, or his heirs, he may give the detention of the deeds in evidence, and also the letters, unless the Defendant shews another title. 1 Ld. Raym. 311. A bill of exceptions to this opinion was tendered and allowed; but, I believe, it has never been prosecuted. 4th. The Plaintiff proceeded to call a witness to prove that the Defendant was only lessee; and it was sworn, that since the commencement 1. See ant. 20 Hurst v. Dippo. of the suit (to wit, two days before the trial) the Defendant told the witness, that he held under the heirs of Pemberton. This testimony was objected to, because it is a general principle, not to receive evidence of any thing that happens after the suit. But it was answered, that this is only proof of an acknowledgment of a fact previous to the suit. And by M'KEAN, C. J. I recollect one case in the books upon this point; and that is, that an acknowledgment of a debt after suit, takes it out of the statute of limitations. Let the witness proceed. bate of a will, under the seal of the Prerogative *5th. The Plaintiff produced the pro- [*66 Court of Canterbury in England, to prove title to the lots in question in those under whom he claimed; which probate was not recorded in the office here. It was objected, that the probate of a will is no evidence as to lands; but it was answered, that by an act of Assembly passed in 1705, it is made evidence here; and THE COURT allowed the probate to be read; though excepted to, and admitted in the bill of exceptions. 6th. The Plaintiff produced a deed executed in England, and recorded here; which was read in evidence. 7th. In order to prove some facts relative to the title of Israel Pemberton, the Plaintiff called one Wilson, who objected to being examined, alleging that what he knew of the matter, came to him in confidence. It appeared that Israel Pemberton was a merchant; that he took Wilson into his house when he was declining in business; that he did very little in trade afterwards; that Wilson used to copy deeds for Pemberton, and after some time (having gained experience) to draw such deeds and writings as were necessary touching his estates; that Wilson lived in the house with Pemberton, but that he had leave to draw, and did draw deeds for other people. Under these circumstances, his examination was objected to, because, it was said, that he was as much Pemberton's counsel, as any man could be. And Skin. 404. 3 Black. 370. Bull. Nisi Prius 284-Gilb. L. E. 138. 139. were cited. It was answered, that Wilson was neither attorney, solicitor, or scrivener, but only in the capacity of a clerk to Pemberton; that the reason why the law will not allow a counsel, or attorney, to reveal his client's secrets, is, because a man is obliged to have recourse to professional characters in matters of law; and, therefore, the law protects the client against the danger, and the counsel or attorney against the indelicacy, of a disclosure. Wilson's evidence, however, was dispensed with, on the Plaintiff's part; not from an apprehension, that the point could not be supported; but, as it was said by the Counsel, under an impression of its great importance, and a wish to avoid drawing the Court into a hasty decision; particularly as it was found the evidence could be waved without prejudice to the cause. 8th. In order to prove possession in one under whom the Defendant claimed, the Defendant offered to read a letter from Thomas Story dated in 1735, although Story himself was no way concerned in the title, to prove that he had the possession for Radcliff Meeting in London. But this was objected to, and disallowed by the Court, it being a particular fact, which ought to be proved by witnesses on oath, records, &c. 67*] *It was said in the course of this cause, that no act of parliament made in England, previous to the settlement of the province of Pennsylvania, shall extend to the province, unless directed to be so extended either by acts of Assembly, adjudications of Courts, or established usage; and, therefore, the statute 32 H. 8. c. 9. against embracery, does not extend here; but the statute of limitations 32 H. 8. c. 2. does. An act of Assembly, 1 St. Laws, 88. proves this doctrine. M'KEAN, C. J. in his charge to the Jury, laid down the following positions: The recital of one deed in another deed, is no evidence but against the party claiming under it. Vaugh. 74. Gilb. L. E. 99. The statute of 32 H. 8. c. 9. against embracery, does not make void the contract; notwithstanding the cases in 1 Hawk. 249. Carth. 251. 2 Blac. 290; for those cases extend only to contracts where no penalties are inflicted. The statute of 32 H. 8. c. 9. is not in force in Pennsylvania; nor is the 21 Jac. 1. c. 16; but the statute of limitations of 32 H. 8. c. 2. is in force here. 1 This state has had her government above a hundred years; and the statute of embracery has never been extended either by law, or practice, during that period. It is the opinion of the Court, however, that the common law EWIS moved in arrest of judgment, on two grounds: 1st. For that the indictment stated, "that the prosecutor was seized in his demesne as of fee," without saying when he was seized; so that it might be he was seized at the time of the indictment found, and not at the time of the forcible entry.-2d. For that the indictment stated, "that he was seized in his demesne as of fee," and "his peaceable possession thereof as aforesaid continued until, &c." which is repugnant and inconsistent, inasmuch as he could not be both seized and possessed at the same time. BUT THE COURT overruled both objections: And M'KEAN, C. J. said, that the words, "his peaceable possession thereof as aforesaid," were surplusage, and ought to be rejected.1 SHRIDER'S Lessee v. NARGAN. this cause, M'KEAN, C. J. said, that he had of England has always been in force in Penn-thed it in a case at Lancaster, that the lessor sylvania; that all statutes made in Great Britain, before the settlement of Pennsylvania, have of the plaintiff shall not be obliged to shew his no force here, unless they are convenient and title further back, than from the person who adapted to the circumstances of the country; last died seized, first shewing the estate to be and that all statutes made since the settlement of out of the proprietaries, or the commonwealth. Pennsylvania, have no force here, unless the colonies are particularly named. The spirit of the act of Assembly passed in 1718 supports the opinion of the Court. It was objected by Lewis and Clymer, that a sheriff's deed of sale of lands, under a writ of venditioni exponas, not being recorded in the Rolls Office, according to the act of AssemThe statute of limitations, 32 H. 8. c. 2. has bly of 1774, could not be read in evidence. always been received in Pennsylvania. Fifty-Sed non allocatur: Because it was acknowlyears possession has not been the rule; but it is agreeable to the practice that sixty years possession should be a bar. An ejectment is almost the only action for trying the title to lands in this state. The recitals of, or in, deeds, with respect to a pedigree, are evidence. *edged in Court, and the registering of [*69 it in the prothonotary's office (as is always done) is a sufficient recording within the act. Sergeant and Ingersol opposed the reading a deed in evidence, upon this ground: that by the 2 act of Assembly last mentioned, all deeds not recorded in the Rolls Office, according A bare perception of profits will not oust a to the particular directions of that act, are detenant in common; and for the statute of limi-clared void as against subsequent purchasers; tations to operate as a bar, the possession must be adverse. An interlineation, if made after the execution of a deed, will avoid it, though in an immaterial point; nor is it to be presumed to have been made before; the presumption is the contrary, unless otherwise proved. VERDICT for the Plaintiff, as to one third of the lot in question, and for the Defendant, as to Se other two thirds. 1.-See ant. p. 15. Bohm et al. v. Engle. and, therefore, though this deed was dated before the sheriff's deed, under which the Defendant claimed, yet as it was not recorded till afterwards, they insisted it was void, and could be no evidence at all.-Sed non allocatur: And M'KEAN, C. J. said, we cannot hinder the reading of a deed under seal, but what use will be made of it is another thing: and he cited the case of Ford v. Lord Gray, 6 Mod. 44. 3 1.-See 1 Inst. 303. n. 2.-See 1 St. L. 78. 520. 3.-See ant. p. 63. M'Dill's Lessee v. M'Dill. WILCOX et al. e. HENRY. made to defraud the state of the forfeiture, and in contemplation of the intended evacuation.How far a contract for the sale of goods belong- 3d. That if it was incomplete, though to be ing to an alien enemy prevailed against a forfeit-made complete by a subsequent event (to wit, ure to the state. THE E case was this:-In the close of the year 1777, one Stephen Backhouse arrived at Philadelphia from Liverpool, the troops of the king of Great Britain being at that time in possession of the city. Backhouse brought with him a large and valuable cargo of salt, which he stored in the warehouse of one Pritchard, and after a short stay in Philadelphia, he went to New York, (then likewise in the possession of the British troops) consigning the salt to Messrs. Jones, Backhouse, and Foulk, of Philadelphia, with directions that they should sell it for him, at the best price they could get, but not under a dollar per bushel Backhouse, one of the consignees, was no relation whatever of Backhouse the owner. -The consignees, accordingly, sold part of the salt to different persons, and on the 17th of June, 1778, they sold the remainder to Wilcox, the Plaintiff. On the 18th of June, 1778, (the day succeeding the sale) the British troops evacuated Philadelphia. In January, 1779, it was seized for the commonwealth as the property of the enemy. And the question was, whether the salt was the property of Wilcor, the Plaintiff; or became forfeited to the state of Pennsylvania, as being the property of a British subject? It is to be observed, that no money was paid by Wilcox to the consignees at the time of the sale, though the key of the store was delivered to him. The price of the salt was to be a dollar per bushel; and the agreement, at the sale, was, that if the salt should be in the city when the American army entered it, then the money should be paid for it within (I think) two or three months; but that if the salt should be destroyed or taken by the British troops, in that event, the contract should be null and võid. These conditions were annexed to the agree70*] ment from a general apprehension *that the British, on evacuating the city, would either destroy such stores as they did not want, or take with them those articles which they might stand in need of. These facts, likewise, appeared in evidence on the trial; that the consignees had been applied to by one of the Plaintiffs five or six days before the evacuation, to purchase the salt; that for three or four weeks before the evacuation, the citizens of Philadelphia supposed it was intended; that the whole of the British army did not finally leave the city till the morning of the 18th, though their shipping, for a fortnight before, had been from time to time, dropping down the river; that the price of salt at that time was only three shillings per bushel; and that the Plaintiff's have since, to wit, in August 1778, paid the full value of the salt, at the rate of a dollar per bushel, to Jones and Co. the entry of the American army into the city, and the salt still remaining) yet the right of the state to the salt attached, if not sooner, at least, as soon (to wit, when the American army entered) as the right of the Plaintiffs; and that, therefore, by the rules of law, the right of the state must be preferred to the private claim. 1st Point. To the first point it was argued;that all contracts should be mutual; that each of the contracting parties should have an equal remedy against the other for the performance of the contract, or for damages on the non-performance of it; that, in this case, Backhouse being an alien enemy, was entitled to no action against the Plaintiffs, but depended entirely on their liberality and honour for payment of the money, in case the salt should not be destroyed or taken away by the British troops. 1st Resp. pro. Quer. At the end of the war Backhouse will be entitled to his action against the Plaintiffs for recovery of the money due on the contract; because, though all rights and credits belonging to the subjects of any power at war with another, are during the war suspended, as against the subjects of that power, with whom their sovereign is at war, still on the restoration of peace, those rights and credits are revived, and the subjects of each nation, are in the same situation with respect to debts due to and from each other, as they were before the war. 2d Point. This was argued on both sides, from the various circumstances which appeared in the cause; the Counsel for the state contending, that the nature of the transaction was evidently to trick the state out of the forfeit- [*71 ure, and the advocates for the Plaintiffs insisting that it was a bona fide sale. 3d Point. Many cases were cited, on behalf of the state, to shew the right of the state ought to be preferred to that of an individual, when they both accrue at one and the same time. 3. Resp. pro. Quer. The contract was complete, though liable to be defeated by a subsequent event; and the delivery of the salt was also complete by the delivery of the key of the store in which it was deposited. The price to be paid was, indeed, the object to be effected by the subsequent event, and not the salt itself. The distinction between a condition precedent, and a condition subsequent was taken, to shew that the property being once vested in the bargainee, could not be taken out of him, by any condition to be performed afterwards, which was impossible, repugnant, or illegal; and it was urged, that although the right of the state would have attached first, if the Plaintiffs had not obtained a prior possession by the actual delivery of the salt; yet, that having a possession On behalf of the state of Pennsylvania three before the American army entered, and even bepoints were made: 1st. That the contract before the evacuation of the British, no such right tween Wilcox and Jones and Co. was not a com- could possibly attach. plete one, inasmuch as no money was paid, nor any possession delivered of the salt. If therefore, it was not a complete contract, the salt was the property of a British subject, and consequently, forfeited to the state by the rules of war, and the law of nations.-2d. That admitting the contract to be complete, yet it was The CHIEF JUSTICE delivered a charge to the Jury of the following purport: M'KEAN, C. J. As the Counsel on both sides have quoted many cases, but have not appealed to the Court for their opinion on the different points of law, the Jury must take the whole to |