conscience, such is human frailty, or perverseness, where, in a case of money to be paid, it is not convenient to pay. The bringing the money into court, with the costs of suit, would be the true test of the writ of error being brought for the purpose of delay; or, with a solid expectation of being able to reverse the judgment. But in the case of money brought into court, it lies unproductive to both parties; and it might be provided that the plaintiff should take it out on entering into a recognizance, with security to refund, in case of a reversal of the judgment, under which it was paid into court.

In assigning errors in the charge of the court brought up by a bill of exceptions, to the charge; (for in no other way can it answer any end to bring it up; because otherwise it would come unaccompanied with the facts of the case, on which the law laid down in it was predicated,) error is alleged in the reasons of the law laid down, though the result of the charge as to the law itself be correct. On a writ of error, therefore, let it be provided, that where the jury are di rected correctly on the point of law, on which the case turns, the judgment shall not be reversed, on account of reasons given in the charge; unless the law laid down, bearing on the issue, was erroneous. I entertain the expectation that this act calling upon judges to file opinions, will be repealed. The profession themselves, at whose instance it was brought forward, will see the inutility of it. With a view to a bill of exceptions, questions, as formerly can be put to the court, and answers to these can be given, and incorporated by the counsel themselves, when they draw up the bill. That there may be no dispute, when they come to draw up the bill, let the judge at the instant put his answers in writing, or express them with such deliberation, that the counsel may have the opportunity of taking them down. But to render it absolutely necessary, for a judge to write any thing, is absurd. It was no part of the common law; for even signing his name, was not necessary to a bill of exceptions. His seal was sufficient. His report of a case tried before a judge of the supreme court at nisi prius, might have been memoriter; and his notes now, are not for the counsel or the party, but for his brother judges who sit at the term; and nisi prius, and

circuit courts being taken away, except in the city of Philadelphia, notes are not necessary for any purpose, but as the judge chuses to take them. As to presidents of districts, but for this act it would not be necessary that they should write any thing, unless their names, in taking the acknowledgment of deeds. No man can take a note with more fidelity, or quickness, than I can; but I despise the mechanical drudgery; and as it detracts from the strength of thinking, I would wish none of it in a judge before whom I was to plead. Let him give me his eye, and his intellect; not with his head down, and his hand busy; because I could not drive my words through his scalp; and it always discouraged me to see a bare, or a covered poll, presented like a battering-ram, while I was endeavouring to reach his mind with my observations. I despise drudgery; not that I undervalue mechanics, or mechanism; but, because handicraft labour, is out of place here; and a Jack of all trades is proverbially a bungler. Though I state this playfully, yet there is truth in it; I wish a judge to be obliged to write as little as possible. For the fact is, that it rarely happens that one can combine clerkship, and the application of the mental faculties with the utmost force at the same time. Persons that have written much, pursuing the rapidity of their thoughts, contract what the common people call a cramped hand; and studious men, from their sedentary lives are nervous; and the nerves are affected by the contraction of the fingers in writing; this adds also to the contractedness of the chirography. To oblige the judge to write out the reasons of his judgment, whenever any one may chuse to call upon him, is a novelty in the history of juridical duties. This much may suffice as to this act which ought to be repealed, more especially as it falls heaviest, in the accumulation of their labours, upon the judges of the inferior courts, and increases the fund on which a writ of error may be brought.

There is a defect in the law of England; 2 Tidd, 1155, and I take it, unless I have overlooked the provision, the same defect exists with us, "That on a writ of error by the defendant, and a reversal of the judgment against him, he

is not entitled to costs;" which is unreasonable, while the plaintiff in the like situation, could claim costs.

It will not be understood that I have applied my mind to consider all provisions that might be in the case of writs of error; but give such hints as at present occur to me.

Opinion on a curious question of practice, made at the term of the western circuit, September, 1803.

In the circuit court of September, 1803.

THE following state of this case is agreed upon by both parries, and the judgment of the court prayed thereon.

At the Allegheny court of quarter sessions, of September, 1797, several bills of indictment for riots were found against James Lowry and others. Three of these indictments are No. 2, 4, and 5, of that term. Judah Colt, as agent for the Pennsylvania Population Company, was the private prosecutor of these indictments, and at the said sessions, by the advice and direction of the court, he entered into a stipulation to pay costs, in case of a verdict for the defendants.

These indictments were continued from term to term until September term, 1798, when the defendants pleaded not guilty to all the indictments, and were tried and convicted upon indictment No. 2.

After this conviction it was agreed between the defendants and the attorney for the commonwealth, with the consent of Judah Colt, the private prosecutor, that a nolle prosequi should be en tered against defendants in the indictments, Nos. 4 and 5, upon the payment of costs by the defendants. This entry was accordingly made upon the docket, and endorsed upon the indictments, together with an agreement by the attorney for the commonwealth, with the consent of Judah Colt, that the recognizance of defendants in the indictment should not be sued until after the next ensuing term.

The bill of costs when taxed by the clerk of the sessions, was disputed by the Lowreys as being too high, and was thereupon re

ferred, by their consent and request, to the president of the court of quarter sessions.

Before the president delivered his opinion the Lowreys refused to pay any costs, and no recognizance of theirs could be found upon which they could be sued.

Process was issued by the attorney for the state, to bring in the defendants, upon indictments, Nos, 3, 4, and 5, of September 1797, and they were accordingly brought in to answer at September, 1799. This process was issued by the direction of the attorney for the state, without the knowledge or consent of Judah Colt, other than his having requested that the bills for attendance of witnesses on part of prosecutor might be collected, and process was issued to compel Judah Colt to appear and give testimony on these indictments against defendants. And the prosecution was revised as the most efficacious mode of recovering the fees and prosecutors bills due on the judgments.

On the trial of the indictments No. 4, and No. 5, at September term 1800, the defendants were acquitted and the costs taxed (prout bills of costs.)

These costs are now demanded of Judah Colt upon his stipulation of September term, 1797, and he refuses to pay, conceiving himself discharged from his stipulation. The court of quarter sessions have given no opinion on this question, and the plaintiffs have brought this suit to try whether Colt is liable to pay the bills as taxed, or any part of them.

HENRY BALDWIN, Attorney for Plaintiffs.

THOMAS COLLINS, Attorney for Defendant.

I understand the first question in this case to be, whether an appeal is sustainable by this court from the opinion of the circuit court, which was given on a case stated under an agreement of which I have not been furnished with a copy along with that of the statement of the case; but which I understand to have been, to submit to the opinion of the two judges then holding the circuit court, and that opinion to be conclusive; provided that the argument could be heard by those two judges from the interference of other business at the time. In strictness then, I would take it, there not having been time for hearing by those two judges, from the interference of other business at the time, there was an end to the agreement; and without an accommoda

tion of the agreement to a hearing in another manner, it was coram non judice and the hearing void. Much more so when a change in the constitution of the court gave the advantage of but one judge at a circuit court instead of two; and more especially when a reason which might have weighed, and it is presumable did weigh, in the agreement on the part of either of the parties, was, that the court being consti, tuted of but four judges, in the case of a reference to two, there could not be a majority out of four to reverse the opinion of two; a reason which it is well known did operate much at the nisi prius courts to prevent appeals or motions in bank from that which we had discovered to be the sense of the one half of the court who had already heard the matter, considering such a motion or appeal to be unavailing; so that an agreement to acquiesce in the opinion of two as conclusive, even under the constitution of the circuit court, was not giving up much. For though the other two judges in bank might reverse the opinion of the two circuit judges, yet the presumption was strong against it, the number being equal in both cases, and the presumption of understanding the same. There is therefore a great difference in the agreement to submit to two under the former constitution of the circuit court, and a submission to one under the change which has taken place.

But it may be said the arguing the case stated before the single judge, by implication, carries with it the agreement that the opinion of the single judge, shall have the effect which the agreement contemplated, which was that of a decision by two; and if such was not the understanding of the party defendant, it behooved him to have had the agreement accommodated to his ideas, by an alteration as to that part of it which respects the conclusiveness of the effect. On the contrary, I would take it, that it behooved the party plaintiff to have had an alteration made as to the submission to one judge, if he meant to avail himself of the conclusiveness of the opinion of one.

It may be said, there is an astutia here to defeat the plaintiff in the advantage he has gained by the opinion of the