r, the deferter fold the horfe in eftion to major Moore, for a tring confideration: and fome time ter, the horse was re-fold to mr. lann, who was defendant in the preat inftance. It was frenuoufly inled on, by the counfel for col. Hill, at the property being indubitably oved to have been originally vefted the colonel, the horse ought not ly to be reftored, but alfo fuch daages given for his ufe as might apar juft and reafonable. Counfel, the other fide, contended, that if r. Slann was obliged to furrender e horfe at all, it would be one of e hardest cales ever known: at an equitable price had been ven to major Moore, was not even nied; the only ground, then, on hich the plaintiff's plea could be tablifhed, would arife from the ght in the major's antecedent and bfequent contract. In time of ar, military government was neTarily established. The council of ar decided upon all cafes relative to ilitary operations ultimately; and neral orders has been iffued, previis to the capture of col. Hill's orfe, which completely authorifed e deferter to difpofe of him in the t manner he could.

To prove this fact, it was requeft1 that general Pinckney might be camined, which the court affenting , the general related, that while eneral Greene was in command of le American army in Carolina, a aft number of re-captures were made om the enemy, of negroes, &c, riginally the property of citizens fering in the caufe of their coun

came to

tenant colonels, in which the matter was fully debated; the general opinion was, that fuch appeared to be the fituation of affairs, that every poffible encouragement ought to be given to what might tend to the annoyance and injury of the enemy, Orders were therefore drawn up, which confirmed the current practice, and promifed, to all degrees of perfons, protection, not only with regard to perfon, but alfo affurances that whatever they brought in should be under their fole controul. The honourable witnefs differed in opinion from the board, and gave his reafons much at length. General Greene defired he would draw up his thoughts in writing, which he did, and figned his name; this paper was tranfmitted to congrefs, attended with fuch obfervations as general Greene thought proper to make. Congrefs took the matter up; and a refolution that only a fourth falvage fhould be allowed in cafes of re-captured property, belonging to fuffering citizens. The counfel for the defendant continued to argue, that the utmost veneration ought to be paid to orders from head quarters; they generally fprung from the neceffities of the times; who could be more properly encouraged than deferters ? but more efpecially when deferters brought horfes, the enemy fuftained a double lofs. The refolution of congrefs did not by any means fit the prefent cafe; it was far from being large enough to include horfes; but even if it did, how could mr. Slann obtain a fourth falvage ? Not from the prefent aftion: for the jury were not competent to make fuch fatisfaction. No: a fresh action must be commenced to render juftice, and thus a legal war be carried on without end! That this infringement on the law of nations was pregnant with ruinous confequences, and would deaden, if not deftroy military ardour, was evident. Af

ter putting this pofition in different points of view, the judge informed The jury, that, agreeable to evidence, they must find for the plantiff, if they agreed with him on the point of law. The law of nations was the law of arms; and in other parts of the world, was allowed full force and operation, when one country carried war into another; but in this country, he thought the law of nations could not be fet up in defence againft a refolve of congrefs; if there was a difficulty, it muff be, whether the refolution extended to horfes; of this they were to judge. With regard to recovering a falvage, for his part, the difficulty did not appear fo plain; two jurors, being drawn, could readily afcertain the fum, and it was hardly probable the plaintiff would refufe to comply with their determination. The jury found a fhilling damages for the plaintiff, which entitled him to the horse, and the defendant to a fourth falvage,

Erfkine in a moft clear and mafterly manner; fo much fo, as to excite the applaufe of the whole court.

He fet out with a propofition which created a general burft of laughter. Models of the two hips being laid on the table, he threw down the gauntlet to his opponent, mr. Bearcroft, whom he called the learned commodore, invited him to get on board their refpective fhips, and to fight the caufe out, as by wager of battle. This challenge not being accepted, he explained the nature of the cafe to the jury in an eloquent fpeech. His client's veffel, the Judy Randolph, was making the Down, clofe hawled, at the time he fell in with the Petersfield, from which the received the

injury. It was about half paft eight o'clock at night, and about four or five miles from fhore. The Petersfield was the lat of a large outward-bound fleet, and was defcribed as poffeffing all the advantages of wind and tide, both of which were unfavourable to the Judy Randolph. In that predicament, mr. Erskine contended, that it was the duty of the Petersfield to have gone to leeward, in order to make a birth for the Judy Randolph; but before he entered upon that part of the fab ject, he called witnefies to prove the ftate of his own fhip.

The fecond mate, John Field, depofed, that the watch had been regularly fet, and every thing in per fect order, on board the Judy Ran dolph. It was his watch, and the ufual complement of hands were on deck-That one of the men, Nel Johnfon, who was on the forecalle to keep a look out, had perceived the Petersfield at the diftance of a quarter of a mile, and obferving her bearing right down on them, hailed her inftantly five or fix times, but with out receiving any anfwer; and, if cumflanced as they were, close hauled, after luffing up to two fhips a f minutes before, it was impoffible for

them to avoid the Petersfield, though they attempted it by putting up the helm.

The negligence on the part of the Petersfield being proved, mr. Erskine went into the fecond part of his argument, viz. the general rule, by which, captains of fhips, meeting each other at fea, ought to be governed.

This, he contended, fhould be the fame that is obferved on the roads, or in fireets, and that any accident which may happen by a deviation from it, ought to be, and really was liable to the very fame penalties.

When a fhip, in the fituation of the Petersfield, with a large wind, and with a free command of her helm, met one circumftanced like the Judy Randolph, it was, he infifted, her duty to go to leeward, because in doing fo, fhe would lofe no way at all, and the other, on the contrary, could not regain her birth without tacking. But no decifion having ever taken place, to eftablish this as a general fixed rule, feveral captains of fhips were called, to prove what was the common ufage on fuch occafions. A very fhrewd and intelligent captain, of the name of Peake, capt. French, a veteran feaman, whole manner and appearance, as well as the candid mode in which he declared his fentiments, impreffed every body prefent with the greatest refpect, and fome other gentlemen on the fide of the plaintiff, confirmed the juflice and propriety of mr. Erfkine's doctrine, which the verdit of the jury afterwards established as the law.

On the part of the defendant, feveral witneffes were called to defcribe the fituation of the Petersfield, which they flated very differently from the account of Drake and Brown, both as to the care of the watch, the management of the fhip, and the flate of the wind.

After an uncommon fhare of wit

and pleafantry between the counsellors, which turned chiefly on mг. Erikine's fuperior knowledge of tactics, and a very able fpeech by mr. Bearcroft, to which mr. Erfkine made an admirable reply, the learned judge fummed up the evidence on both fides with great precision, and fubinitted to the jury the importance of afcertaining, beyond the poflibility of any mistake, the general principles, by which all captains of hips, in fuch fituations, fhould fleer in future. He remarked that it was rather fingular this point had never before been determined, confidering the innumerable fubjects which had been litigat ed among naval men. But as the jury was compofed of the most refpectable clafs of citizens, and the caufe attended by fuch a multitude of captains and owners of fhips, the matter could never be decided with more fairness and folemnity.

The jury, after a few moments confultation, found a verdict for the plantiff, to the full amount of his damages; and alfo declared, as has been before stated, that in future the fhip that has the wind, fhall go to leeward,

Interefting decifion of the court of common pleas in Philadelphia.

ON Friday, the third day of

Auguft, 1787, the court of common pleas, in Philadelphia, gave judgment in an action brought by the indorfee against the acceptors of a bill of exchange, in which the words, or order, were omitted; when after a judicious and elaborate difcuffion of the fubject, mr. juftico Shippen pronounced that the action would not ly. This is a question which has never before been ex prefsly determined in any court, hera or in England,

The executors of David Shaffer.

THE plaintiffs made a leafe by indenture, dated March 1, 1773, of a fugar-houfe, &c. to John William Hoffman, and his aligns, for five years, at 7ol. per annum, payable quarterly. The leffee covenanted for himself, his executors, adminiftrators, and affigns, to keep -the demifed premifes in good repair, and to deliver them up, at the end of the term, in fuch good repair, to the plantiffs, &c. John William Hoffman aligned the leafe to David Shaffer, the original defendant, who entered into the premises. The breach alleged was, that the defendant had not paid 351. rent in arrear for the laft half year, nor delivered up the premises, at the end of the term, in good order and repair, on the first of March, 1778; but that the roof, window-fhutters, floors, &c. of the fugar-houfe, were in decay, deftroyed, &c.

The defendant pleads performance of covenants, payment, and that an alien enemy, viz. the British army, commanded by general fir William Howe, on the fl of September, 1777, had invaded the city of Philadelphia, taken poffeflion of the premifes, and held the fame until the end of the term, and afterwards; and had during that period committed the wafte and deftruction.

The plaintiff demurs generally to the laft plea, and defendant joins in demurrer, and iffue.

This demurrer was argued on the 27th of June, 1786, by meilrs. Coxe, Lewis, and Wilfon, for the plaintiffs, and mefirs. Ingerfol, Wilcocks, and Sergeant, for the defendant, before the chief juftice and judge Bryan; and afterwards, upon the 15th, of

April laff, by the fame council before the chief justice, judges Atlee and Bryan-judge Rufh declining to hear the fame, as he had been of council with the plaintiffs, when he was appointed a judge.

Two questions were made in the cause.

ift. Whether the defendant, 21 affignee of the leafe, is bound, by the covenant, to repair, as well asche leffee?

2d. Whether the special matter pleaded, is fufficient in law to bar the plaintiffs?

On Saturday, the 6th of October, 1787, the chief juftice pronounced the judgment of the court in this caufe as follows:

With respect to the fir quelion, we are clear in our opinion, that the covenant to repair, and to deliver up the demifed premifes in good or der and repair, runs with the land, being annexed and appurtenant to the thing demifed, and fhall bind the affignee as much as the leffee, even if the affignee were not named by exprefs words, on account of the privity; but in the cafe at bar, the af fignee is bound by exprefs words, and, a fortiori, is answerable as well as the leffee. This point has been fully fettled in Spencer's cafe, 5, Co. 16. b. and Salk. 199, Levinz sof, 1 Rolls abr. title (Covenant) leter M, pl. 1, and N. pl. 2-Vin. Abr. 6 vol. p. 411, letter M. pi, 1.2-1 Bacon's Abr. 584, ca. 5. and the books cited in thefe abridgments.

The fecond question is of great difficulty, and of very great impor tance in its confequence. We capnot find that it has ever come direftly before any court in England, or in any other part of Europe. We with that it had come before_abler judges than we pretend to be. How ever, we muft give our judgment, but we do it with more diffidence the has occurred in any case, fince w have had the honour to fit here,