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of having the law settled, with the advantage of more judgment; or at least more to judge.

I object to four judges; even three are better than an equal number;

-Impari numero gaudet deus.

In the city of Philadelphia, it has been suggested that a maritime and commercial court, so called, might be constitu ted, taking cognizance of all transactions of that nature, which in this growing and trading metropolis, might be necessary with writs of error to the supreme court.

Courts of arbitration, as they may be called, are ancillary to all the courts; and with some lopping and improvement, this part of the system might receive approbation.

We have no chancery court in Pennsylvania: nor do we feel any great want of it; for equity is a part of our law; and all our courts exercise equitable jurisdiction, with the exception of an appeal to the conscience of the party, and the decree of a specific performance, which under the constitution, might be given, in the proper cases to the courts of law.

The act establishing a court of chancery in Pennsylvania, was passed the 28th of May, 1715, and repealed by the lords justices in council the 21st July, 1719. It is understood to have been adjudged that the proceedings which took place under the said act before its repeal, were binding.

By an act 22d May, 1722,. Sec. 25, special courts are grantable to defendants in the common pleas, by reason of sudden departure out of the then province, now state.

By an act of 10th April, 1782, the privilege of having a special court was extended to plaintiffs as well as defendants; and to cases in the supreme court as well as common pleas; but was again taken from the plaintiffs by an act of the 27th March, 1789.

By an act of 13th April, 1791, a court of errors and appeals had been constituted, consisting chiefly of the presidents of districts. To these severally writs of error were directed, in the first instance, from the supreme court; and in the last resort from these conjunctively to the supreme court. So

that each could have his revenge for a reversal of his several judgments, by a voice in the consistory of the whole in the reversal of the supreme judgment. In this constitution of the judiciary, there was something like a resemblance of Cottom Mathew's snake in his report to the philosophical society, that ran with its head foremost one while, and with its tail foremost afterwards.

By an act 24th Feb. 1806, this court was suspended as "to sustaining any new cause," and after holding two terms for unfinished business to be then abolished and the powers and duties to be vested in the supreme court.

By an act of the 20th March, 1801, what were called circuit courts, were substituted in lieu of courts of nisi prius, so far as respected the counties exclusive of the city and county of Philadelphia. This court was found unwieldy and inconvenient, and has been since abolished; and without a revival of the nisi prius courts; for which, under the constitution of the courts by presidents of districts there would seem now to be no necessity.

"The high court of chancery is the only remaining, and, in "matters of civil property, by much the most important of any, "of the king's superior and original courts of justice." III Bl. Com. 47.

IT will naturally occur to the student, to enquire, what have we to do with chancery law in Pennsylvania, since we have no court of chancery? We have to do with it; and the student after a course of reading general law, will come to read treatises, tracts, or reports of equity law. As for instance, Fonblanque, or the treatise on equity, referring to Atkyn's, Peere William's reports, &c. For equity is nothing more than exceptions from general rules. Thus we say, such is the general rule; but this case does not come within it. There are circumstances which distinguish, so that the general rule cannot apply. The court of chancery in Eng

land, takes a peculiar cognizance, or exercises a peculiar ju risdiction over these exceptions, and therefore the law with respect to these, is to be collected from the chancery reports. And it becomes as necessary to read these in this state where we have no chancery court, as in England, or in other states of the Union, where they have.

It is asked by lawyers from other states, or reflecting individuals, how are we able to accomplish the ends of justice in our administration of the law, having no court of chancery in Pennsylvania? Why not? Cannot the same courts which take notice of the general rule of the law, take notice also of the exception which forms an equity, or takes a case out of the general rule? We have an advantage over administra tion of the law by courts of chancery in England, or in other states, in this particular, that we have the assistance of a jury to whom the facts may be referred upon which constitutes the exception, and upon which the equity arises. This is a great aid to the courts, and more satisfactory to the people. It cannot but be some abridgment of the trial by jury, that the conclusion of fact from the evidence should be drawn in any case, by the court, and not by the jury.

By the constitution of Pennsylvania, art. 5, sec. 6," the supreme court and the several courts of common pleas, be side the powers heretofore usually exercised by them, have the power of a court of chancery so far as relates to the perpetuating testimony, the obtaining of evidence from places not within the state, and the care of the persons, and estates of those who are not compotes mentis: and the legislature shall vest in the said courts, such other powers to grant relief in equity as shall be found necessary; and may from time to time, enlarge, or diminish those powers, or vest them in such other courts as they shall judge proper, for the due administration of justice." Our courts of law before this constitution, had exercised the powers of a court of chancery, as to the equity province of it, and we look into the grounds of decisions there, as much as the lawyers in England themselves do; and as to the farther powers giv en by this constitution, for perpetuating testimony, &c. we

look into the precedents, and practice of chancery as guides, where we choose to make use of the wisdom of those who have gone before us. There is no book therefore of chancery law, which may not be useful to the student; and necessary indeed, in most cases to be consulted, and read.

III Bl. Com. 98.

THERE being no ecclesiastical court, or equity court in Pennsylvania, which have a concurrent jurisdiction in the case of legacies; acts of assembly became necessary on this subject. That of the 21st March, 1772, entitled an "act for the more easy recovery of legacies, is that under which we proceed against executors, or administrators. And this may be by action on the case, debt, detinue, or account rendered, as the case may be, for such legacy after it becomes due; and in that case shall recover with costs. It may be debt where it is a sum certain, and assets after debts paid, exist, sufficient to discharge; or it may be case for the part of the sum after debts paid; or case, and not debt, for the whole, as for money had and received to the use, giving special notice of the cause of action. But in the case of a specific chattel, it must be detinue; or on the case for the detention of, and praying damages, not for the detention but for the value.

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The term devise is appropriate to real estate; legacy to personal. This distinction also, in the use of the terms, devisee, and legatee; devise, and bequest, &c. of which let the student take notice who would wish to be correct, as all ought to be, in the use of terms. As for instance, evidence is a general term which applies to written, and viva voce of witnesses; but testimony is applicable to that by witnesses; and it is not correct to say an evidence, but a witness. I always think it an evidence of want of precision, and a distinguishing mind, where a lawyer at the bar, does not attend to this; for it may be said, in this, as in other matters of lesser moment,

Y

Inest sua gratia parvis.

It will be seen, that by our act, Sec. 7. where no time is limited, for the payment of a legacy, the executor, or administrator shall have the space "of one year to discharge the same."

An executor is considered as a trustee in England for creditors, legatees, &c. and under this idea it is that the court of equity takes jurisdiction. How far he is a trustee for the next of kin as to the residuum, after all debts and legacies have been discharged, see the chancery decisions on this head. The claim of the executor in this case has been much reduced, and would seem to be in a fair way to come to nothing. But it is astonishing that in Pennsylvania, where by act of assembly a compensation had been allowed for his trouble, at the discretion of the orphans court, yet it was not until May, 1811, in the case of Wilson v. Wilson, 3 Binney, 557, that it was finally settled that he was not entitled to claim for himself, but as to the surplus was to be considered a trustee for the next of kin.

"Some agreements indeed, though never so expressly made, " are deemed of so important a nature, that they ought not to rest ❝ in verbal promise only, which cannot be proved but by the me "mory (which sometimes will induce the perjury) of witnesses." III Bl. Com. 159.

BY the act of 29 Car. 2. (1676,) entitled an act for prevention of frauds and perjuries, "all leases, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seizen only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law

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