1817. MORE V. HOUSTON. in supplying those details, that were in their nature too minute to excite the attention of the convention. The construction of the law becomes part of the law. The necessity of liberality, in expounding the constitution, adapted to the nature of those exigencies, that unavoidably grow out of the complexity of structure, in our political institutions, was clearly and ably demonstrated by the Chief Justice, in the case of the Farmers' and Mechanics' Bank v. Smith, lately decided in this Court. If a contrary rule were adopted, a total prostration of state sovereignty would be the consequence. "Such a doctrine," says Chief Justice KENT, in Livingston v. Vaningen, “would be constantly taxing our "sagacity, to see whether the law might not contravene some "future regulation of commerce, or some monied or some "military operation of the United States. Our most simple "municipal provisions, would be enacted with diffidence, for "fear we might involve ourselves, our citizens, and our "consciences, in some case of usurpation." Fortunately a different doctrine prevails. Every legislative act, which does not palpably and directly, or by some irresistible implication, invade a constitutional principle, is held valid. The power to declare an act of the legislature unconstitutional, is in its nature, a delicate one, and its exercise can be justified in extreme cases only. During the argument, I entertained a doubt whether the marshal could justify his proceedings, under the 21st section of the act, an authority not being given to him in express terms, to collect the fines imposed, according to the mode pointed out in the act of Congress of 1795, and its supple-. ments. On reflection, I am satisfied those acts are to be considered, as adopted by the state legislature, and are to have the same force, as if re-enacted in terms. It never could have been the intention of the legislature, that a penalty should be imposed without authorising its collection. The execution of the sentence, according to the mode pointed out by Congress in similar cases, if not enjoined, is at least permitted, and those acts are recognised as furnishing a rule of proceeding. Even should they be deemed to have no force, as laws of the United States, I should consider them as having effect for this purpose, as laws of Pennsylvania. pass over the mode, selected by the plaintiff below, to bring the question before the Court, with a single remark. It is to be regretted he did not demur to the defendant's special pleas, instead of taking issue on the facts. It would then have come directly before the Court, as an issue of law, and the cause would not have been embarrassed with the prejudices, that might exist in the minds of a jury. The evidence, to which he excepted, went directly to prove those facts. On an exception to evidence, the question is not, whether the facts attempted to be proved, will make out a good case, but whether they are pertinent to the issue, and legal in other respects. But whether the proceedings of the court martial could be set up as a justification or not, the Court clearly erred in excluding the evidence. It would be unnecessary to consider the operation of the 25th section of the act, if it had not been made a question below. From the whole of this section, it seems to have been the intention of the legislature, to render the proceedings of courts martial, instituted by competent authority, and acting within the limit of their jurisdiction, final and conclusive, without appeal, and when brought in question incidentally, to prevent a re-examination of the merits, or an objection on the ground of informality. I cannot believe it was meant to extend the protection of this act to any combination of persons, calling themselves a court martial, but acting without warrant or authority; nor even to the acts of a court martial, legally constituted, that should transcend its powers. If, therefore, it should appear that such court was legally constituted, that it had jurisdiction of the offence of which it took cognisance, and that it inflicted a punishment, known to the law, its sentence would be conclusive, and exempt from further inquiry. It appears to me, the sentence of the court martial, on which the defendants rested their cause, was free from exception, on any of these grounds, and therefore, that they were protected by it, and might safely have relied on this section alone, had it been necessary to avail themselves of it. Several exceptions, of minor importance, with respect to the admissibility of particular parts of the evidence offered, have been argued by the counsel, for the defendant in error. I am satisfied, the ground taken in support of them is untenable. I shall not examine them in detail, as I concur fully, 1817. MOORE v. HOUSTON. 1817. MOORE v. HOUSTON. with the opinion of the Chief Justice, on this part of the case, for the reasons he has assigned. I am, therefore, of opinion, that the judgment of the Court of Common Pleas be reversed, and that a venire facias de novo be awarded. DUNCAN J. gave no opinion; having been of counsel for the plaintiff. Judgment reversed, and a venire facias de novo awarded. N. B. A writ of error was taken from this opinion of the Supreme Court, to the Supreme Court of the United States, and argued in March, 1818, and the writ of error was dismissed. The case was again tried, March 23, 1818, in the Court of Common Pleas of Lancaster county, and a verdict given for the defendant. A writ of error was thereupon taken to the Supreme Court of Pennsylvania, which was argued in May, 1818, and the judgment of the Court of Common Pleas affirmed. A writ of error was thereupon taken to the Supreme Court of the United States, which was argued March, 1819; and in February, 1820, the judgment of the Supreme Court of Pennsylvania was affirmed. The Commonwealth against PENNOCK. INDICTMENT. BUCHANAN, for the defendant, moved for a writ of 1817. Lancaster. Tuesday, In an indiet ment for burglary, the word man. sion-house, is scription of error upon an indictment and sentence of the defendant for burglary, on the ground that the indictment stated the break. ing and entering to be into a mansion house, and not a dwel- a good deAnd also that the Court made it a part of their the premises. ling house. sentence, that the defendant's goods and chattels should be It is not error, forfeited, and that his lands and tenements should be for- in their senfeited for life. a that the court, tence for burglary, have included the forfeiture of property im Writs of er to be allowed to reverse a THE COURT refused to grant a writ of error. They were of opinion, that the house was sufficiently described as posed by law. dwelling house by the word mansion. And as to the for- ror ought not feiture, although the judgment would have been better with- in criminal out it, yet the defendant suffered no injury by it; as the law cases, merely would have implied the forfeiture, though not part of the judgment, judgment. Writs of error ought not to be allowed merely merits have for the sake of reversing a judgment, where the merits have been fairly tried, and the been fairly tried, and the defendant has suffered no wrong defendant has by the judgment. where the suffered no wrong by the judgment. Motion denied. Where bonds belonging to an intestate were as signed by him her share of gor, who be came after nistrator, of such hus DASHER assignee against LEINAWEAVER, jun. IN ERROR. ERROR to the Common Pleas of Lebanon county. This suit was an action of debt on a bond, brought by to the husband Casper Dasher, assignee of John Elder, assignee of Chris of one of his tian Michael, assignee of Peter Leinaweaver, sen., against daughters, as an advance of Peter Leinaweaver, jun., to which the defendant pleaded his estate, held payment, and gave notice of the special matter. On the trial, that the obli- the defendant offered evidence to prove, that the bond in question was assigned by Peter Leinaweaver, sen., deceased, in wards admi- his life time, and delivered, together with several other bonds, might, in a suit into the hands of David Krause, esq., by him to be delivered by the assignee to the several assignees, his children. That the defendant band, set-off administered on his estate; that the said bond was assigned the proportion overpaid by to Christian Michael, who married Catherine, one of the him, in settling the debts daughters of the deceased, as, and for part of his portion in the estate of the deceased, and for no other consideration. That the said bond was given up by David Krause, esq., to that the obli- Christian Michael, at the request of the said Christian, and assignee rea- of the defendant, on the 18th September, 1809, and a receipt that he had no was given therefor, from the said Christian, to the defendant. He then offered in evidence, the administration action accounts counts of the estate of the deceased, regularly passed by the passed by the Orphans' Orphans' Court of the county of Dauphin, and certified Court are pri- under seal. The one passed, May 5th, 1808, shewing a ma facie evidence of the balance against the defendant of 246 pounds; and the other estate of the passed, March 2d, 1813, shewing a balance in favour of the defendant, of 346 pounds, 11 shillings, and 10 pence. of the intestate, if it did not appear, gor gave such son to suppose, set-off. Administra of the debts This evidence was objected to by the plaintiff, and overbut not con- ruled by the Court. A bill of exceptions was thereupon clusive. taken. Godwin, for the plaintiff in error. The sum which the defendant claimed to be deducted from the bond, was 42 pounds, 1 shilling, and 4 pence halfpenny. The defendant overpaid the estate of the intestate, and, therefore, had a right to retribution from his children, to whom the bonds. |