single judge, and to relieve the defendant from the decision of which he complains. It may be so; but may it not be justifiable? It would seem to me; as I must acknowledge it does; that the single judge has erred in his judgment in this case; and, even on this preliminary question, it seems to me, that it is proper to overreach it in the contemplation of the mind, and to enquire what has been the decision of that judge. It is allowable then, at least I have done it, to look at the case stated, even in determining the first point. For astutia, in an endeavour to get at justice, is allowable; and to admit a rigorous or liberal construction of an agreement, with a view to that object I have been disposed to do so in favour of the defendant. For it would seem to me that the defendant ought to be considered as relieved from the stipulation as to the costs of the prosecution in question. My memory does not serve me with a positive recollection; but it seems to me, that in the course of my reading I have seen something which has led me to doubt the power of the court to impose the stipulation; and on principle there would seem reason to doubt it. For though in fact, in a forcible entry, there is a private, as well as a public wrong, and oftentimes the injured party resorts to the indictment merely with a view to his private wrong, yet I should be at a loss to conceive, that the power of the court could oblige him to stipulate for costs in this more than in any other criminal case when the statutes have not done it. If so the stipulation would be void, and on that ground the defendant would be relieved. But supposing the stipulation legal and binding, it respected an acquittal on trial. But here by the agreement on the part of the commonwealth with the defendant, the prosecution is arrested short of a trial; a nolle prosequi is entered on payment of costs. It is true the pro secutor assents to it. But nevertheless it is the agreement of the attorney for the state with the defendant; and I would take it, that the agreement takes the case as to costs out of the stipulation, and puts it wholly on the recognizance. The prosecutor, the stipulant, directed the proceeding for costs; but what could he be supposed to mean, but that the proceed

ing should be on the recognizance of the defendant; and for the purpose of costs only, and not for the purpose of trial. But no recognizance had been taken, as stated in the case. This was the oversight of the officer of the commonwealth, and for which the prosecutor the stipulant is not answerable. If the officer is reduced to the necessity of recurring to a process to bring in the body of the defendant, and going on to trial, from the default of a recognizance, it would not seem to me reasonable that he should hold the prosecutor to his stipulation, who, in consequence of the agreement of the attorney of the state with the defendant, had given up the prosecution.

It is under these impressions that I may be disposed to give the stipulant the advantage of any want of conformity to the agreement on the strictest construction of it, in order to let in a consideration of this point. Justice is the great object of us all, and when that does not certainly appear to have been attained, the mind is not satisfied, more especially if all advantage has not been had in the hearing by such tribunal, in the first or last resort, as it may have been in the contemplation of the party to have had, who thinks himself agreed by the determination.

It is possible that on hearing the matter argued, I might think with the judge who has given an opinion; and in order to get at this, if the party to the agreement on the one side, will hold the other to the conclusiveness of the effect of the opinion, I would hold him to the strictness of the agreement as to the tribunal before whom it was agreed to be heard, and unless he would consent to waive the conclusiveness, and give the advantage of a hearing on appeal, I would turn round to begin again, on the case stated, or leave him to his action as it was commenced, and the ordinary progreša of the suit.

3 Y

OPINION IN THE CASE OF LESSEE OF ZIEBACH V. MORGAN.

concur, as it There are a

THE following was delivered in the case reported, $ Bin. 69. It was a case which had been holden over for advisement, and I had made out my opinion, but from oversight, I had omitted to deliver it to the reporter; not that it was of much moment to insert here, more than to shew that I had considered the case; and did not merely stands in the report, but delivered reasons. number of other cases, some of them reported, and some not, where I made out opinions; though at an early period, I was more in the habit of delivering them, not from written notes: some of them which had been written out, I did not deliver, because, finding that we concurred, it was left to the chief justice; to deliver the opinion of the court.

Some of these which I had drawn up, I threw into the fire, as having been always averse to the trouble of keeping papers, where it was not absolutely necessary. My notes in other cases, I have given to some of the bar, or have lost. To Mr. Mountain, of Pittsburgh, I gave a number; and when on that circuit last fall, I thought of enquiring for them with a view to this publication, thinking to insert some. But I was unwilling to give him the trouble of looking them up, if he had preserved any of them. Seeing his bodily weakness, and knowing that the business of the term must at that time press upon him; and for which all the strength that he had, was necessary. In a number of cases, I had given the opinions I had drawn up, to some one or other of the judg es; to chief justice Tilghman, one in a case of the first impression, Dessebats v. Berquier, which I had drawn up with some pains; but it was mislaid, or handed over by him to some other of the judges; or it is possible to myself; but which I could not find at the time the court delivered their.. opinions, or since; and therefore I could only express my concurrence with the sentiments they had delivered, at least it was not necessary to take up time in doing more. For they were to the same effect with reasons that had occurred

to me.

There is one note upon an important question, the case of Starrer v. Shetz, which I could wish to have had, in order to insert it here. It was argued in the high court of errors and appeals, in which court I had taken a seat, to hear the argument. But some idea being expressed, that I had given. an opinion in the court below; (the supreme court) I withdrew, though I had not so understood it myself. The fact is, it had been argued before I came upon the bench of my supreme court; but at the delivering of an opinion on the case by that court, I was on the bench, and may have said something as approving of their way of thinking, but did not consider myself as sitting in the case, but only observing upon the reasons which they had given. There was a misunderstanding in the case some way, either on my part, or on that of the counsel concerned, and I gave up my own recollection of the fact, and yielded to them. All I know, is that I had not considered myself as having given an opinion, &c. But having withdrawn from the hearing of the cause in the court of errors and appeals, I made a note afterwards, of what, as at that time advised, I should have been disposed to have thought of the case. I gave to judge Smith, that note together with his own notes to me, of the argument of counsel on the former opinion, when heard in the supreme court. His notes containing what I probably had written, are not now to be found amongst his papers; and probably must be in the hands of some gentlemen of the bar. I have not had an opportunity of enquiring.

What is the use of all this; it may be said, the profession can go on, and justice be administered, and the law understood without a report of your opinions; but it concerns myself to increase the evidence of my industry, and attention to the duties of my trust and station.

It may be said that there is an inconsistency with this, in my throwing into the fire many things, which, I acknowledge I had drawn up with some care. The truth is, had I expected that I should have had any opportunity of giving them to the public, I might have preserved some of these; but Mr. Dallas, had, in a great degree, withdrawn himself

from reporting cases, his professional business occupying his time; and, this accumulating fast upon him, in the courts of the United States, from his office as district attorney; and, from his great, and still opening talents. Mr. Binney had not yet offered himself as a reporter, and therefore not seeing a prospect of publicity to my labours, I consigned them, I was going to say, to the tomb of the Capulets; but, that figure not agreeing, I will say, to the funeral pile of the Cæsars.

Mr. James Mountain, of whom I have spoken in this note, is, I understand, much regretted, even, by those of the profession not friendly to his way of thinking on political questions. He argued two cases during the term, which unquestionably accelerated his dissolution; the exertion being more than he could bear; we may be said, on that occasion, to have heard the words of the dying swan: he died in three days after the Term,

The following are the words of the will on which the law point made in this case arises: "My wife, &c. shall continue to live in the house with her children until the term of the lease is expired, and she must observe the agreement which was made, &c. The executors namely W: L: M: and R. shall be empowered to sell my land in, &c. When my debts are paid, if any thing should remain, my wife shall keep, &c. and my oldest son shall have £5 per advance; and then each child shall have an equal share, and my wife shall have the third part, and if my wife cannot bring up and maintain the children properly, then the executors shall take the children away and put them out to good people, that they may be brought up. And in order that my last will and testament may be executed I constitute as executors W. L. M. and R."

The sale in the case before us has not been by W. L. &c. but by some of them; others having refused to act. The question then will be, can the sale be made by fewer than the whole. Looking into the books I have extracted some authorities which I will note before making any observations of my own,