of invalids and the costs of the tribunal, which | continued in Murgatroyd, until the power was he shall pay to the bearer of our notary's order. executed by Skirrow; or, at least, until the last Santo Domingo, Fructidor thirteenth (August of the instalments of the purchase money was thirtieth.) Fourth year of the French Repub- actually paid; that the execution of the power, lic, one and indivisible. Signed in the Regis being prevented by superior force, capture, and ter, Pons Judge, and Despujeaur Notary Public. detention, ought not to affect the original rights and interests of the parties; that the contract "(Signed with Duncanson was merely executory (a spe"Despujeaux Notary." cies of contract recognized by the law) and until the specified event had actually occurred, to wit, an arrival in England, and a transfer by Skirrow, no property could vest; and that there was no fraud upon belligerent rights, no violation of neutral duties, in the formation, or affirmance of such a contract. 2 Pow. on Contr. 79. 3 Dall. Rep. 491. Adm. Inst. 218. 2 Journ. Cong. 114. 3 Rob. 24. 31. 39. Treaty between the United States and France (1778) 1 vol. Acts Cong. p. 378, art. 6. 15. 21. 23.

edit.) That an ownership in trust, could never be more strongly characterized: for, the ship was bought for him, and the price was paid by him, through his agents; she was insured at his charge; she sailed at his risk; and an agent named by him, was possessed of an absolute power to transfer her to him. That the contract was not executory, in the sense contended for; as the intention was to pass an immediate right of property, an absolute usufructuary enjoyment, keeping back the formal title only for a specific, unlawful, purpose; as there was no covenant to convey, depending on any event, but an absolute power and mandate to transfer; as there was no mutuality, the price being pay313*] able at all events, and Murgatroyd was never again capable of sharing in the profit or loss of the ship. That the property was so changed, at the time of sailing, that the ship would have been liable as Duncanson's to execution and attachment, and to the statutory assignment of the insolvent, or the bankrupt, law. That if such a mask could secure impunity, in violating the registering act, aliens, and particularly belligerent aliens, would soon be the owners of a great portion of the American tonnage. Maybin v. Coulon, ant. 5 T. Rep. 112. 3 Dall. Rep. 495. 3 Rob. 243. (a) 4 Rob. 91. 93. 95. That, indeed, in every aspect of the cause, an American common law court ought not to interpose: not, if it is a breach of our navigation laws; not, if it is a cover of belligerent property; not, if Duncanson is an Englishman; and not if it is a question of prize, which is exclusively of admiralty cognizance. 2 Rob. 111. 114. Wesk. 359. 1 Mag. 437. 3 Rob. 269. 2 Dall. Rep. 165. 4 T. Rep. 382. 3 Dall. Rep. 6. 3 Dall. Rep. 25. 32. 7 T. Rep. 696. 8 T. Rep. 444. Park, 71. 2 Dall. 4. 2 Burr. 693, 4. 2 Dall. Rep. 270.

a recurrence to dates will satisfactorily show the relative situation of France, Spain, and England, on the co-operation of the two former in hostilities against the last. Thus; the Mount Vernon was taken on the 9th of June, carried into Porto Rico on the 4th of July, condemned at St. Domingo on the 30th of August, sold on the 26th of October, *1796, and kept [*314 under embargo until the 27th of May, 1797. A treaty of alliance between France and Spain, was signed on the 19th of August, and ratified on the 6th of September, 1796, in which a joint war with England is contemplated; and, accordingly, on the 5th of October, 1796, Spain published a declaration of war. Thus, when the Mount Vernon was captured and condemned, France and Spain were in alliance, with a view to a war against England; and the joint war was actually declared and waged, while the ship remained within the territory and power of the allies. That, independent of the question of alliance and hostility, neither the place of condemnation, nor the place where the ship lay, can avail the plaintiff, if Spain permits, and England does not complain. That the institution of courts for prize causes, in countries not belonging to the captors, nay, in neutral countries, has been practised, as well as recognized by England; and has been practised as well as recognized by America. 2 East, 473. 2 Rob. 174. 4 Rob. 34, 5. 44. Carth. 474. 2 Danv. Abr.269. pl. 8. 2 Brownl. 11. 29. Godb. 386. Parke, 353. 5 vol. Journ. Cong. 440. (30) Nov. 1779.) Cochin. 708.

The Court delivered a long and elaborate charge to the jury, on the two principal points in the cause. 1st. They expressed considerable doubt, whether the condemnation of the Mount Vernon was pronounced by a competent court; in as much as the ship was not within the 2d. That the capturing privateer had a law-jurisdiction of the country of the captors; as ful commission from the French republic; cap- the evidence did not satisfactorily prove, that tured the Mount Vernon as prize, on the high France had taken possession of St. Domingo, in seas; and sent her for adjudication to a court, pursuance of the treaty of cession; and as established by the nation of the captor. Such Spain and France did not appear to be actually a capture may be tortious, but it can never be allies in the war, at the time of the capture piratical. In the present instance, however, and condemnation. 2d. But they were clearly the appearances at the time, and the result of and decidedly of opinion, that the charge desubsequent investigation, must equally justify livered in the case of Margatroyd v. Crawford the proceeding: for, it is now notorious, that (3 Dall. Rep. 491.) was erroneous and untenable. the Mount Vernon was an English owned ship, Acknowledging and retracting, therefore, with going to a belligerent port, and with false pa- candour, the error which they had then compers, describing a false destination. If, then, mitted, they declared that the verdict must be Duncanson was the owner of the ship, and was in favour of the defendant; inasmuch as the an enemy of France, who had not acquired the plaintiff's claim to the ship was founded upon a rights of neutral domicil, the capture was law- transaction, in fraud of the positive laws and ful; and the courts of this country could not public policy of the United States, which exinterfere, before condemnation; nor, a fortiori, clude an alien, from any degree of interest in can they interfere after condemnation and sale. an American registered vessel, by way of trust, Vatt. b. 3 c. 14. 8. 208. p. 583. confidence, or otherwise.

3d. That the city of St. Domingo was either to be considered as belonging to France, under the cession of the treaty between her and Spain; or as the country of Spain, an ally of France, on the eve of engaging in the war against Great Britain. Treaty of 22 July, 1795, art. 9. That the French constitution had regarded the cession as complete, and the legislature of France had actually divided the Spanish side of St. Domingo into departments. Const. art. 3. That Great Britain, in her manifesto, had, also, considered the cession from Spain to France as absolute. New Annual Reg. p. 121. 1796. That

Notwithstanding the explicit decision and direction of the court, one of the jurors refused, during four days, to concur in a general verdict for the defendant: declaring, in open court, “that although he stood alone, he would only lay down his opinion with his life: for, he never could consent to cast the property of the ship upon the defendant, through the medium of such a capture and condemnation." At length, the form of a special verdict was submitted to the jury, by each side; and the jury adopted and returned the form prepared by the defendant's counsel.

315*] *When the special verdict was brought before the court, for argument, at December term, 1804, the defendant moved for a new trial, on the ground, that although the facts were sufficiently found, for a judgment, on the point of a breach of the acts of congress; they were not sufficiently found to enable this court, or the High Court of Errors and Appeals, to decide upon the objections to the condemnation, because St. Domingo was Spanish territory, within which a French prize court was not competent to act; and because the ship was not within the jurisdiction of St. Domingo, but at Porto Rico, when she was condemned. Besides, in an action of trover, the jury are bound to give the actual value of the property if they find for the plaintiff; and in this case they have given only prime cost of 22,000 dollars on the sale to the defendant; whereas the value, according to the only evidence before the jury, was 40,000 dollars.

After repeated arguments, the Court determined that the facts were not sufficiently found, on the whole case; and, although they adhered to their opinion, as delivered in the charge, in justice to the plaintiff, who had a right to a writ of error, as well as in consideration of the importance of the decision, it became necessary and proper to award

A new trial.'

316*] *DECEMBER TERM, 1804.

COMMONWEALTH v. FRANKLIN et al.

A certiorari issued to remove an indictment from a Court of Quarter Sessions of &c. to the Circuit Court, was directed to the Judges of the Court of Common Pleas of &c. and returned by the Associate Judges of that court. Held: That the direction and return of the writ were fatally irregular.

THE general question, upon the constitution ality of the intrusion act, (3 State Laws, 703. Dall. edit.) having been decided at the last term, in the affirmative, this case came again before the court, upon the remaining exceptions in arrest of judgment, as they are stated ante, p. 257.; but the counsel for the defendants abandoned the third and fourth, and the argument and decision turned entirely upon the sixth and seventh, exceptions.

2d. It is returned by unauthorized judges. 3d. It does not describe and identify the indictment, which is annexed to the return.

1st. The Courts of Quarter Sessions, and of Common Pleas, are courts of distinct, and independent, jurisdiction; though the same judges officiate in both courts. Each has its own seal, its own record, and its own clerk; and the subjects of their cognizance are essentially different; the one relating to criminal prosecutions; and the other to civil suits. Const. art. 5. 8. 1. 7. 4 T. Rep. 499. 1 Bac. Abr. 572, 573. 2 Hawk, P. C. c. 27. s. 80, 81. 72.

2d. The return is made by the Associate Judges of the Common Pleas, to the Judges of the Supreme Court, and not to the Judges of the Supreme Court sitting as a Circuit Court. And the authorities already cited, [*317 show that a writ wrong directed, or wrong returned, will remove nothing.

3d. The indictment consists of two distinct counts, containing two distinct charges, of two distinct offences. Three of the defendants only are implicated in the charge of the first count: and yet the certiorari directs the removal of an indictment against the four defendants for both offences. This is not such an indictment, and, therefore, the proper record has never been removed. 2 Ld. Raym. 1199. 1 Ld. Raym, 609. 2 Hawk. c. 27. s. 82. 2 Ld. Raym. 1803.

For the Commonwealth. The præcipe for the removal of the indictment, was written by the counsel of the defendant; the certiorari was worded conformably to the præcipe; the writ was specially allowed, and issued, at the instance of the defendants: and, yet, the defendants endeavor now to defeat the jurisdiction of the Circuit Court, by the irregularity of their own process. It is a general rule, in civil cases, that no man shall take advantage of his own wrong. In criminal cases, too, it is a rule, that errors in form shall be taken advantage of as soon as is reasonable after they occur, or a waiver of the advantage shall be inferred; and an indictment may be removed, without certio

rari, by delivery of the justices, per manu propria. Here, the defendants appeared gratis, and never objected to the imputed errors, for a year after their trial. Hawk, B. 2. c. 27. 8. 102. 2 Stra. 843. 2 Hale, 213. 2 Ld. Raym. 1518, 9.

But, independent of this general course of reasoning and authority, the certiorari is well directed and returned. The true designation and official style of the judges must be

For the defendants. If the cause was never Judges of the Court of Common Pleas;" for, pending in the Circuit Court, as the sixth and their commissions are only in that character; seventh exceptions allege, all the proceedings and, "Judges of the Court of Quarter Sesthere, are, of course, coram non judice; and sions," is a style of office unknown to the conthe judgment must be arrested. These excep-stitution and laws. The certiorari is directed tions will, therefore, be first considered. Then, 1st. The certiorari is directed to a wrong court.

"to the Judges of the Court of Common Pleas, for Luzerne county, and every of them, to remove the indictment depending before them, 1.-Yeates, Justice, thought that enough was or some of them." Now, the indictment found, upon the special verdict, to give judgment for the defendant, on the paramount, and conmust have been depending before them, trouling, question of a violation of the acts of or some of them, sitting as a Court of Quarter Congress. He was, therefore, opposed to a new Sessions. The only use of the description is, trial, though the facts on the other questions were, he admitted, defectively found, and though to ascertain the person required to do an act; he did not approve of the estimate of the damages, for which no evidence had been adduced at the

trial.

Smith and Brackenridge, Justices, however, pro

nounced the decision of the Court.

and here the description does ascertain the persons, who composed the Court of Quarter Seswhom the indictment was found; who ought to sions; who are, therefore, the persons, before

transmit the record to the Superior Court; and who have sufficiently done so, by returning it to the judges of the Supreme Court, those judges being the constituent members of the Circuit Court, sitting in the county of Lu

zerne.

-

*SMITH, Justice. I have hitherto [*319 declined taking any part in judicial proceedings against the defendants; because, I am personally interested in the lands, on which, it is charged, they have unlawfully intruded. as my opinion is favourable to them, on the present point, I will not abstain from delivering it.

But

of a wrong court. The Judges of the Court of Common Pleas never had cognizance of the indictment; nor could they have any power over the record of the Court of Quarter Sexsions, to transmit it to the Circuit Court. The trial was, therefore, coram non Judice. Judge Brackenridge and myself determined the same point, the same way, in Centre county, upon the removal of an indictment by the commonwealth.

Nor is the objection to the description of the indictment more valid, than the objection to the description of the judges, The certiorari The last objection is fatal, I think, to the does not, in fact, call for the removal of an in- proceedings. The direction of the certiorari 318*] dictment *against four persons for two was to the Judges of a wrong court; and the offences; but it issued "to remove an indict-return of the writ is, also, made by the Judges ment for combining and conspiring for the purpose of conveying, possessing, and settling on lands, &c. And also for combining and conspiring for the purpose of laying out town ships, &c. wherein the commonwealth is plaintiff, and John Franklin, Elisha Satterlee, John Jenkins, and Joseph Biles, are defendants:" that is to say, an indictment wherein the commonwealth is plaintiff, and those four persons are defendants, although it may contain a count, in which three only are charged; and | an indictmeut which does, indeed, charge two offences to have been committed, though three of the defendants committed the first, and all of them committed the second. Even, how ever, suppose, that the certiorari had described an indictment against four persons, when only three were, in fact, indicted; yet, the record being transmitted, and the three persons indicted, actually appearing, and being tried, there can be no injustice, or irregularity in the proceeding. 4 Vin. Abr. 337. (B. 2.) pl. 2. 1 Roll. Abr. 395. 4 Vin. Abr. 338. pl. 6. in note, Ibid. pl. 7. 2 H. H. P. C. 214. 4 T Rep. 499.

SHIPPEN, Chief Justice. The objection to the direction of the certiorari is fatal. The power and cognizance of the Judges of the Court of Common Pleas, do not extend to criminal cases. Those judges are, indeed, ex officio, members of another court, which possesses a criminal jurisdiction; but, when sitting there,

BRACKENRIDGE, Justice. Having already decided the leading question, in the case referred to by Judge Smith, it is only necessary to add, that I have heard nothing, upon the present occasion, to induce me to change my opinion.

Judgment arrested.

*MARCH TERM, 1805.

WELSH . MURRAY.

[*320

the preceding term, but they take priority accordAs between creditors, judgments do not relate to ing to the times of their entry.

NASE stated for the opinion of the Court.

they are Judges of the Court of Quarter Ses CAD the 1st of August, 1804, judgment was

sions, not of the Common Pleas.

I am, also, inclined to think, that a certiorari, calling for the removal of an indictment against four, generally, will not remove an indictment, which charges only three persons, in one of its counts. It is true, that the Circuit Court may obtain the removal and cognizance of an indictment, as well upon the delivery of the record, by one of the judges of the Court of Quarter Sessions, per propria manu, as upon the return to a certiorari. The present case, however, rests upon the authority of the writ; and, though it is not without doubt, I am disposed to hold, that not only the direction and the return are irregular; but that the body of the writ is defective, in the description of the indictment

to be removed.

YEATES, Justice. The authorities cited for the commonwealth are in point, to show that the certiorari for the removal of an indictment against four, is sufficiently descriptive, to remove an indictment against three only, under such circumstances, as appear upon the present | occasion. My only difficulty, therefore, arises from the direction and the return of the writ; which, on a question of jurisdiction, in a criminal case, must, I think, be deemed fatally ir regular.

entered, by confession, at the suit of Ering v. Murray, in the Common Pleas of Philadelphia county; in which the declaration was entitled of June term preceding. On the 3d of August, 1804, judgment was entered, by confes sion, in the Supreme Court, against the same defendant, at the suit of Welsh, the present plaintiff; and the declaration was entitled as of March term preceding.

The question submitted was, which judgment was entitled to a priority of payment, from the proceeds of the sale of the defendant's real estate?

Wallace, on behalf of Welsh, the present plaintiff, contended, that the Supreme Court judgment, though, in fact, last entered, had a legal relation to March term; and must be preferred to the Common Pleas judgment, which related only to June term. He cited authorities to show the relation at common law: 14 Vin. Abr. 616, 12 Mod, 519. 3 Bl. Com, 420, 6 Mod. 191. Yelv. 35. 3 Burr. 1596. 1 Wils. 59. 2 Saund. 9. And he argued, that neither the English statue of frauds, nor the Pennsylvania act of assembly, affected the legal relation of a judgment, except only in the case of bona fide purchasers; not in the case of conflicting judg

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