COMMON PLEAS.

of a road of their own construction was not unjust or op

The commissioners and, &c. of the Incorporated North- pressive, because the paving by the district was not

ern Liberties,

so much for the object of travelling, as it was to secure health, cleanliness, and comfort to the inhabitants, and therefore the assessments paid by the inhabitants on Third street to the two corporations, were of a different character, and for different purposes, and that the intention of the legislature in passing this law was to be gathered from the state of things, the evil complained of, and the remedy sought at the time time of its pas sage.

The Court decided that the Commissioners possessed the power to "pitch and pave," and that the defendant was liable. Judgment for plaintiff. Miles for the Commissioners. Goodman and J. R. Ingersoll for the defendant.

From the Bucks County Intelligencer.

In the proceedings of Court published in our last paper, we were obliged from want of time, to notice very briefly the trial between Case and M'Nair, which excited general interest. We have obtained from a gentleman of the bar, the opinion of the Court, taken down at the time it was delivered; which we have no doubt will be read with interest by those who were not present to hear it. The Lancaster Journal in noticing this trial expresses a wish to see the grounds upon which the deci sion was made, and we feel gratified in being able to give it so fully. Mr. Reynolds will see that the decision was made upon the grounds that the oath was adminis tered between the time of the expiration of the Dedimus issued by Governor Snyder, and the date of the one given by Governor Findlay.

This case was argued before Judge King during the last week, and embraced a very interesting point. The facts were these: The district of the Northern Liberties was incorporated in 1803, comprising all that laid between the Delaware and Sixth street, and Vine street and the Cobocksink creek, with powers in the corporation to pitch and pave streets, upon application, &c. so that the proprietors in front of which said pitching or paving might be done, should be taxed in proportion to the extent of their fronts, for the same. Prior to the act of incorporation, however, in 1801, the legislature incorporated the Germantown and Perkiomen turnpike company to make a road over and on the bed of Third street, from its intersection with Vine street to the ten mile stone, &c. This road the turnpike company constructed, and took tolls from persons travelling on it, so that when the Northern Liberties came to be incorporated, they found a turnpike road running thro' its heart, and, as it was asserted, not within the jurisdiction, although within the bounds of the district. Owing to the conflicting opinions on this subject, the Commissioners declined paving Third street from Vine street to the northern boundary; and the existence of such a road through a large, populous, and business-doing district, became a subject of general complaint. In 1824 an arrangement took place between the two corporations, the turnpike company and the commissioners, by which it was agreed that the former should cede to the latter all jurisdiction over said road, with power to level, regulate, repair, and otherwise govern said Third street as other streets in the district are; and that the turnpike company should take the same tolls for travelling to and from Vine street, but receiving them at the gate No. 2, and taking away gate No. 1. To make this agreement binding, the corporation applied to the legislature for a law sanctioning it, which was passed in March 1824, in the words of the agreement. After this, upon the application of a majority of property own ers, &c. the commissioners paved Third street. The defendant not being one of those who applied, refused to pay for the paving in front of his property, and this suit was brought to recover it of him. The case was stated for the opinion of the Court. For the defendant it was contended, that the object of the act of 1824 was to give jurisdiction to the Northern Liberties only for the government of the citizens as regarded violations of Judge Ross said he knew of no law authorising the ordinances relative to lamps, obstructions on the pave- Recorder to make a Record of commissions of offices. ments, cleanliness, &c.: that the commissioners might That if there was such a law, he knew not how far it regulate and repair the street in any way, but could not might extend, perhaps the same rule which would make make the property liable for it as regarded pitching a Justice's commission a matter of Record, might auand paving these words not being specified in the thorise the recording of commissions to Militia officers. act; and that the words "otherwise govern" referring Canal Commissioners, &c. and that then an exemplifi only to general subjects of jurisdiction not including the cation of the record would be evidence: and finally adone contended for;that it was an unjust and unequal law, journed the court till morning, that the Counsel might insomuch as the inhabitants paid to the turnpike com- have an opportunity of examining the question, observ. pany for travelling on a road of their own construction,ing at the same time that the Court would not be disthat the legislature had no right to make such a law, individuals being no party to it.

Case vs. M'Nair.-(Appeal from the judgment of Samuel Atkinson, Esq.)

This was an action brought before Justice Atkinson, for the recovery of the penalty of fifty dollars for taking illegal fees. M'Nair acting as a Justice of the Peace had fined Case for working on Sunday, and had in his bills of costs, charged 25 cents for entering judgment,— the legal fee is eight cents.

M'Dowell for the Plaintiff, Case, offered in evidence the Record of M'Nair's commission as a Justice.

Fox, for the Defendant objected that the Record made by the Recorder of Deeds, &c. was but a copy, and could not be read in evidence. The best evidence is the original commission, which must be produced or some reason shown why it was not in their power to produce it.-The defendant had no notice to produce it &c.

posed to favor the objection.

In the morning M'Dowell offered John Hugh Esq. as For the plaintiffs it was contended, that the legisla- a witness, to prove the copy of the commission, or the ture had a right to make such a law, the contracting par- Record, and also that by virtue of a dedimus potestatum ties being the only ones in interest, and therefore, giv- to him directed, he had administered the oath of office ing consent, no privileges could be invaded; and that to M'Nair, as a Justice of the Peace, in pursuance of the all individuals, by the act of their representatives, the commission then before him. On inspection the Dedilegislature, were parties to the contract and bound by mus was found to be dated after the time of administerit: that although the words "pitch and pave"were omit-ing the oath. Another Dedimus to Esq. Pugh was ted in the act, words "otherwise govern as other streets are," were of such extensive signification as to embrace that power, and the Supreme Court had held words of similar character to possess a similar extent of meaning, (1 S. and R. 487): that the paying a toll to the turnpike company for travelling over a few squares

produced in which he was authorised by Governor Sny der to administer the oath of office, &c. M'Nair was commissioned by Governor Findlay,

Fox objected. This power is a special power to administer the oath to persons who have been or may hereafter be commissioned under the Great Seal of the

1829.]

MISCELLANEOUS.

351

Commonwealth. They must therefore show that a complants, which I have not observed in this country at any mission did actually issue under the Great Seal, &c. before they can show any act done in pursuance of this authority.

M'Dowell. This is a general power, it applies to all persons that may hereafter be appointed. Would a commission of itself be authority sufficient to enable M'Nair to perform the duties of Justice of the Peace. The oath of office must be administered before he can act. We offer now to show that he took this oath.--Suppose we were to produce a commission, it would not be evidence of this authority to act as a Justice, unless the oath was taken.

Fox in reply-Where is the act of Assembly which requires a Justice to be sworn, (Judge Ross referred to the Constitution)-It has been said this is not a special authority, but a general one. A serious question might arise whether any but a special authority will be sufficient to authorise any man to administer the oath of office except the Governor himself-but I am going on the supposition that an cath is to be administered, but that cannot be done till a Commission has issued, they must then first show a commission did issue.

The opinion of the Court was given by Ross, President. I have very great doubt of this Dedimus authorising the administration of the oath in question. That doubt does not arise so much for a want of power in the Governor to delegate his authority, for I am satisfied it has been the usual form, from the very first settlement of the Province, and has become the common Law of the Country. There is considerable force in saying that the person to whom the Dedimus is sent is only authorised to swear officers appointed under the great Seal. But I have a great doubt of a Governor being able to give power to swear officers who were not appointed during the time of his own term of office. That Governor Snyder, for instance could give authority to swear officers appointed by his successor, his own power was extinct before the time of executing the delegated power. If a man bas given a power of Attorney and dies, the power of Attorney ceases with his life, and it is in this point of view that I am inclined to think that Mr. Pugh had no authority under this Dedimus to administer the oath of office to S. M'Nair, at a time after the Governor's office had expired. In this view connected with the circumstance of this Dedimus only authorising him to administer the oath to persons commissioned under the great Seal. I am strongly inclined to say that Mr. Pugh had no authority to swear a person into office at the time this oath was adminis

tered.

M'Dowell then offered to prove that the Record was a true and correct copy of a commission under the great

Seal.

Fox objected and the Court sustained the objection, when the Plaintiff suffered a non-suit,-and the Justice saved his fifty dollars, at the hazard of unsettling all the Land titles which may have been acknowledged before him during ten years of supposed official duty, and of going home plain Mr. M'Nair.

other place. Here the Botanist, accompanied by a Mi-
neralogist might spend a few hours of scientific satis-
faction to themselves without a loss to society. As to
the Porcelia triloba or Custard apple, I believe it is not
a native, nor to my knowledge has it been cultivated in
this county; but have heard that in some parts of New
Jersey it has.
Bucks Int.

May 13, 1829.

M.

A Singular Bird-About three miles up the Codorus, there is a bird of the Blackbird species, located,

ying from tree to tree clapping his wings and crowing like a cock. His voice is so exact an imitation of the Bantam, that like that fowl, in its unreclaimed state, it might lead strangers travelling into the wild woods, under the delusive hope of finding a habitation. This bird, we presume, had been caught when young, and 1d learned to crow when in prison, from which he has, probably, but recently made his escape. York Penn. Gazelle.

The Dwarf Persimmon.-This shrub is a native of the islands of the Susquehanna, and is found in great quantities, below Eshleman's sluice in Lancaster county. It grows from two to four feet in height, and when in full bearing, is literally covered with fruit, which in the months of September and October, has a most beautiful appearance. The fruit does not differ from that of the Poulson. large tree.

CHAMBERSBURG, (Penn.) May 25.

We are happy to learn, from different parts of our county, that the rising crops of fall grain, especially the wheat, look promising.

The Caterpillars, so disgusting in appearance, and so destructive to fruit and other trees last year, have again made their appearance this season, in such numbers in some places, as at this period to wholly deter any exer tion towards their extirpation. This was to have been expected, and ought to have been attended to whilst their nests were small and easily destroyed.

Garret D. Wall, John Rutherford and Caleb Newbold, Esquires, have been appointed by the Governor of New Jersey, Commissioners to treat with Pennsylvania, relative to the use of the waters of the Delaware, under the law of last session. David Scott, Nathaniel B. Eldred and Abiah Sharp, are the Commissioners on the part of Pennsylvania.

May 26. At 20 minutes past three o'clock, yesterday afternoon, we received by the Union Line the New York Daily Advertiser of yesterday morning. The Line left New York at 6 o'clock, and as just stated, arrived here at 20 minutes past three-thus performing the trip in the remarkably short period of 9 hours and 20 minutes. Aurora.

In answer to the Query of your correspondent in the Bucks County Intelligencer of the 11th, on the subject of some trees and plants, wishing information whether they are indigenous or cultivated in Bucks county, I would state that the Acer Saccharinum or Sug r Maple, is a tree of native growth in some of the upper Townships of the County, particularly in Tinicum, where it comes to perfection; and considerable quantities of sugar are made from it. It is a beautiful shade tree, combining cleanliness with beauty, it is easily cultivated from the seeds, or raised from plants, which are at this time fit for taking up. The Polygala Senega or Seneca Snake-root, and the Panax Quinquefolium or Ginseng, are both indigenous, growing in Nockamixon General Robert Patterson has been appointed Canal township, on the river hills, near Col. Kitner's tavern, Commissioner in the room of B. W. Richards, Esq. rewhere there are a great variety of flowering and other | signed.

The Judges of the Supreme Court have appointed Thomas Bradford, Jr. Inspector of the Eastern Penitentiary, in place af Roberts Vaux, resigned.

STATEMENT OF

In Oyer and Terminer, $4 for each indictment prosecuted, State Treasurer, $3 if not prosecuted.

THE

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

PHILADELPHIA, JUNE 6, 1829.

red to; and that it was his intention to leave London in May, in the expectation of reaching New York in July. This letter was answered by the vestry, approving Mr. Jenney's intention; and a resolution passed that the anSome Particulars relating to the Commencement and Pro-swer should be sent to New York to await his arrival. gress of the Episcopal Church in the State of Pennsyl

Immediately after the death of the Rev. Mr. Cummings, our late worthy pastor, an address, dated the On Mr. Jenney's arrival in New York, which was not 25d of April, 1741, was drawn up and sent to your lord- until October, he wrote the following letter to the vesship from the then vestry of this church, humbly re-try, accompanying one from the Bishop in London. questing your lordship to licence and send over a minister to us worthy of your lordship's esteem and fatherly advice; to which address we have not hitherto been so happy as to receive any answer from your lordship.

ceedingly well qualified in all respects to succeed your late worthy minister, Mr. Cummings, I was willing upon his return from hence to his cure in New York, to grant him a provisional licence to your church on supposition that he would be received there in such a manner as might encourage him to quit his present mission, and to remove to Philadelphia.

I have nothing in view but the peace and welfare of your church, and earnestly recommending to you all, to pursue the same good end, I pray for the divine blessing upon you and your proceedings, and remain Your assured friend,

To the gentlemen of the

EDM. LONDON.

in that behalf lawfully established and promulged, and not otherwise or in any other manner, (you having first before us subscribed the articles, and taken the oaths which in this case are required to be subscribed and taken.)

In witness whereof we have caused our Episcopal seal to be hereto affixed, dated at Whitehall, the 31st day of March, in the year of our Lord 1742, and in the nineteenth year of our translation.

EDMUND (L.S.) LONDON. The vestry at this same meeting proceeded formally to accept and admit the Rev. Dr. Jenney as their rector, and at their request the Rev. Mr. Ross was approv ed as his assistant.

The following particulars relating to the Rev. Dr.
Jenney, though not immediately connected with his re-
lation to Christ church will not fail to be interesting:
He came to this country as a missionary, in the em

vestry of Philadelphia. Upon the receipt of these letters, the vestry, it is presumed with the concurrence of the congregation, as we hear no more of any opposition, wrote to Mr. Jenney, inviting him to come on, and assured him that heploy of the society for propagating the Gospel in forshould enjoy the same privileges and advantages as had been allowed to the late Rector, and at the same time requesting him to accept and approve of the Rev. Mr. Ross to be his assistant in the church.

We cannot read the foregoing papers, and recur to the circumstances under which they were written, without admiring on the one hand, the prudent and pious care manifested by the Bishop of London over this distant congregation, and on the other the dignified course pursued by the vestry, and their uniform submission and respect to that authority under which they were placed. The relation in which a Bishop stands to the individual churches under his care is one of the most solemn and interesting which can well be conceived. If he be a conscientious man, and under the influence of that high responsibility imposed upon him by his consecration vows, we may suppose his whole heart engaged in the promotion of the great ends of his office-his whole time devoted to serious reflection upon the best interests of the flock committed to his care; and all his opinions are entitled to the greatest respect. It augurs well when such authority is regarded with venerationwhen the opinion and advice of the Bishop is considered parmount to individual predilections, and the people under rule are seen on all occasions looking up to their spiritual shepherd, inquiring the way at his hand. This we are inclined to believe is a greater security for that order which constitutes the perfection of our ecclesiastical institutions, than respect for an individual, however exalted, or well deserved; it is a religious principle operating under all circumstances to the promotion of the same end, while the other will always be found wavering under peculiar embarrassments, and preferring private prejudices to the public good. In this point of view the course adopted by the vestry in relation to this as well as other circumstances involving the superintendance of the Bishop of London, presents an example worthy the imitation of all vestrys; and affords a striking evidence of the superiority of our church discipline, when it is exercised with piety and judgment, and submitted to as becometh christians.

In November of this year, Dr. Jenney came on to Philadelphia, accepted the rectorship of the church, and presented his licence from the Bishop of London, in the following form:

EDMUND, by divine permission, Bishop of London, to our beloved in Christ, Robert Jenney, Dr. of Laws, Clerk. Greeting.

We do hereby give and grant to you, in whose fidelity, morals, learning, sound doctrine, and diligence we do fully confide, our licence and authority to continue only during our pleasure, to perform the ministerial of- | fice in Christ church in Philadelphia, in the colony of Pennsylvania, in reading the Common Prayer, and performing other ecclesiastical duties belonging to the said office, according to the form prescribed by the Book of Common Prayer, made and published by authority of parliament, and the canons and constitutions

eign parts, in the year 1722, and was first settled at Rye, in the county of Westchester, in the state of NewYork. When he first took charge of this congregation, it consisted of about 300 persons, but was considerably enlarged in the few years that he remained. In 1725 the society removed him to Hemstead, Long Island, to succeed the Rev. Mr. Thomas, who died the year before; here he remained until his settlement in Philadelphia, in 1742, having laboured for the society twenty years, according to their own testimony, a faithful minister of Jesus Christ.

1742. July-The Rev. Dr. Jenney was now settled in Christ Church as Rector, and was assisted in his duties by the Rev. Mr. Ross. In return for the care and attention which the bishop of London had always shown towards this Church, and particularly on this occasion, a respectful letter was sent to him signed by the wardens, and each member of the vestry. In this communication, they thank the lord bishop for approving and sending Dr. Jenney to the care of this Church, a person so exceedingly well qualified for so good a trust; they express their hopes that under his wise conduct and pious labours, that peace and unanimity recommended by his lordship would be continued and promoted, and state that in the short time which Dr. Jenney had been among them, it appeared to be the zealous inclination of every member of the congregation, to recommend themselves to his lordship's favor by a behaviour becoming true members of a Christian Church.

1743-In this year the Rev. Mr.Ross stated, in a letter to the vestry, the reasons which induced him to wish to withdraw from his present situation, and take charge of Oxford and Whitemarsh churches; where he had be fore officiated: he stated that, upon his arrival from England in 1741, he found this church vacant by the death of the late worthy Rector, the Rev. Mr. Cummings, at which time, he was requested, together with some of the other missionaries to officiate in turn, that this arrangement did not continue long: when at the request of the vestry he took the care of the Church altogether upon himself, until the pleasure of the bishop of London should be known: and that he continued until the arrival of Dr. Jenney to supply the Church, since which time he acted as his assistant. It does not appear that Mr. Ross was at all dissatisfied with any circumstances which had taken place, either with regard to the congregation or the Rector; but urged the state of his health, which had become impaired, and his desire to promote the prosperity of the before named Churches, as the motives leading him to take the present step. In the conclusion of his letter, he returns his thanks to the vestry, for their regards and civilities from time to time shown him, and assures them that he should not cease to make supplication to Almighty God for their temporal and eternal happiness.

The vestry, on their part, acknowledged the faithfal services of the Rev. Mr. Ross; expressed their high sense of his character, as a man and a Christian minister: