In volume I. page 116 of the "American Journal of Medical Sciences" will be found a very interesting essay, and numerous tables, on the medical statistics of Philadelphia, in 1827, by Governeur Emerson, M.D

THE ALCHEMIST.

Notwithstanding the trite maxim, 'poeta nascitur, orator fit,' and without meaning to undervalue the virtue of industry, I may be permitted to observe that an orato cannot be formed by study alone. Nature must im. plant the requisite feelings and powers, without which, the exertions of art would be as fruitless as the labours of the plough in the barren deserts of Sahara. His mind to his wishes, and carries them along with him at his must be at once brilliant and solid, it must be capable of encountering hardships and making playful excursions. bidding, acquires a potency of influence to which poe. It must have a strength superior to the external acci

A character so various and lofty, is hardly susceptible But to attain this flexibility of mental power, this of analysis. But it may not be entirely useless to exam-comprehensive reach of knowledge, this exaltation of VOL. VIII.

74

JUDGE GIBSON'S OPINION.

[JULY

From the Journal of Law.

OPINION OF CHIEF JUSTICE GIBSON.
CORPORATION V. WALLACE.

[Concluded from p. 52.]

It seems to me, that the preceding remarks dispose of the principal grounds of the argument; but we have and judgments was ever made in practice. The doubt ample evidence, that no distinction between mortgages in the case of an older judgment was, whether any thing but the clear resulting interest of the debtor could be sold? and, on the theory of those by whom it was entertained, it is singular that it should have arisen. a postulate of that theory, that the interest of the older judgment creditor did not pass by the sheriff's deed, and,

character, it is not enough that the candidate for eloquence retire to Academic groves and classic bowers, that he trim his midnight lamp' in close communion with the mighty spirits of former ages. He must know his contemporaries and have active intercourse with his species; he must dive into the mazes of business and see mankind in its various conformations and opposing di versities. Let him not stop here. Let him mingle in the society of the elegant and accomplished of the other sex, whose airy pleasantry, brilliancy of fancy, and sharp. ness of wit, will suggest ideas as useful for actual confict in the field of debate, as the deeper lessons he may imbibe in the solitude of his study. The proud as.in that view, it is clear that he would not be entitled to pirant for the laurels of intellectual glory, holding this too much in contempt, becomes rigid and ungainly, without versatility and suppleness. Such contact with out detracting from the intrinsic worth of his misshapen bullion, will give it form, and polish it into elegance.

bued with the beauties of approved authors, after acquiring an entire controul over his intellectual nature, and brushing from him the dust or mauvaise honte of

It was

satisfaction, out of what was paid, not as a price of his interest, but of that which had become the fund of the younger judgment creditor by virtue of his lien. To suppose that he might resort to the purchase money or the land, at his pleasure, was an evident inconsistency; and an admission of his right to take the purchase mo

After being filled with profound knowledge and imney, which seems never to have been doubted, ought at once to have settled the question. The purchase money could be substituted for the land, and distributed among the lien creditors, only on the supposition that the sale had divested their right to every thing else. At present, however, our business is with the evidence the closet, let him observe with attention the best mowhich we have, of the earlier practice; and this appears dels for improving upon their merits, and avoiding their by the manuscript of Mr. Justice Shippen, to have been defects. Let him engage in the frequent exercise of fully developed in Febiger's lessee v. Craighead, which was tried at Carlisle in 1793. David Hoge, who had speaking after due preparation; but in these let him be been the sheriff of Cumberland county from 1769 to select in his words while bold in his style; chaste while 1772, testified that the usage had been, for thirty animated in his illustrations and ornament. Let him in years, that when the sheriff knew of a mortgage, he dulge in written composition, which, allowing less ar- sold subject to it; but that where he had no such know. dour, vehemence, and freedom, may aid the acquisition ledge, and the mortgage was not recorded, he sold ABSOLUTELY, and paid off judgments AND MORTGAGES, of closeness in thought and purity and propriety in lan-according to their priority. That it was considered, guage. Let him by all the means in his power acquire that when the land was sold absolutely, it discharged copia verborum, that richness of style so necessary for ALL former incumbrances as to the purchaser, and that the easy enunciation of his sentiments and the pleasuring to their order." Samuel Postle waite, who had been the sheriff looked to the payment of judgments accordable gratification of his listeners. The eradication of the sheriff of the same county, from 1783 to 1786, testithe lower passions of our nature and the cultivation of fied "that he had sold land subject to a mortgage, in every good affection and pure emotion, are greatly which case the mortgage money was to be paid first." beneficial as they tend to exalt intellect over sense and the meaning being, that the mortgage was to be paid This short note of his evidence is evidently imperfectprepare the mind by its consequent invigoration, for mas- first, when a clear title was sold; and, in this aspect, culine achievements. They do more. They impart to his evidence is consistent with that of sheriff Hoge. the character a charm, and to the sentiments a power and Now it is vain to question the sheriff's right to prescribe a glow, which will overawe the debased and worthless. the conditions of the sale; if a practice which, according to the account of it there given, has prevailed for The man who to great natural and acquired talents for seventy years, may not confer it, we have no foundation oratory, adds a contempt for meanness, a purity of mor for many of our most important laws of domestic origin. als, a love of country, and a reverence for religion, pos- Mr. Hoge's representation of the practice was, at the same time, corroborated by the testimony of Colonel sesses an armament not only invincible in itself, but Hartley, Mr. Bowie, and Mr. Charles Smith, all profes proudly setting opposition at defiance! sional gentlemen, of great experience, in one or more of the counties of Lancaster, Berks, Cumberland, York, Increase of the manufacture of iron in Pittsburgh.-At Franklin, Bedford, Mifflin, Huntingdon, and Northuma meeting of the citizens of Pittsburg, held at the court- berland, which then comprised that part of the state house, on the 28th of December, 1816, Mr. Forward, in which is east of the Allegheny mountains, and west of a behalf of the committee appointed at a previous meet-line midway between the Susquehanna and Delaware. ing, made a report,from which the following is extracted: In addition, when the cause came up in bank, the prac In Pittsburg and its immediate vicinity there is antice was asserted by Mr. Lewis to be general; and this, annual consumption of pig iron to the amount of one thousand eight hundred tons, which gives employment to about 150 hands. The value produced is estimated at 223,000 dollars per annum. Of wrought iron, there is annually worked up above two thousand tons, furnishing, according to the best estimate in the power of the committee, a produce of one million three hundred thousand dollars."

H.

We are assured that the consumption of iron in and about Pittsburg, now exceeds eight thousand tons, and still rapidly increases.-Pittsburg Guz.

without contradiction from Mr. Ingersoll, retained on the other side, or from the judges, who, undoubtedly, had ample opportunity to become acquainted with it on their circuits, in every part of the state. No man was better acquainted with the earlier practice and tradi tions of the law, than Mr. Justice Yeates; and it is easy to discover from Keene v. Swaine (3 Yeates, 561) what he supposed it to have been in the matter before us. In the counties west of the Allegheny mountains, I am informed by my brother Kennedy, whose experience there reaches thirty years back, that a different impres

1831.]

JUDGE GIBSON'S OPINION.

75

to the practice here, else the mortgagee would be consulted in all cases, whether the proceeds were more than adequate to satisfy his debt or not. But if the land were sold subject to his mortgage, the matter would not depend on his volition, more than it would on that of a stranger: he would be bound to look to the lan exclusively, and not take satisfaction in a way to disappoint those who have no fund, but the equity of redemption; and that he may look to the price proves that his estate has been sold, for undoubtedly he can be compensated for nothing else out of the purchase mo. ney. A practice then, which has prevailed in every part of the state for more than seventy years, probably from the foundation of the province, ought, one would think, to be received as conclusive evidence of the law. It is said that practice, to be available, ought to be preceded by judicial decision: it seems to me, however, that this would be an inversion of the usual process of formation, judicial decision not being in any case a nucleus for the increment of the law, but, as in the case of the tenant's right to the way-going crop, the recog nition of it as a thing already established by the custom of the country.

sion had been made on the professional mind by the late president Addison, whose opinions were held in deseryed respect; yet no one, in that part of the sta', sup. posed there was a difference between mortgages and judgments; the supposition being, that the sheriff could not, in any case, sell more than the resulting interest of the debtor. This impression was, however, gradually effaced, by the influence of the judges of this court, on the western circuit, and the matter came to be viewed there as it was elsewhere. That it was the practice, in the eastern counties, to sell clear of mortgages, appears satisfactorily from Petry v. Beauverlet (1 Binney, 97), in which the sheriff of Bucks was allowed poundage for paying judgments and mortgages. To say that the point was not presented to the court, the matter having passed sub silentio, is to say nothing. What we want is the fact, that an instance of the practice passed in this city, unchallenged by the debtor, or the younger lien creditors, who are usually as sharp sighted, and true to their interests, as any other parties litigant in our courts. Certainly it would not have passed as a thing of course, bad it been considered as great a phenomenon then, as it has been since: nor will it do to say, the payment may have been with the assent of the mortgagee-he had no The argument ab inconvenienti, did the matter rest in right to assent to an arrangement, that would enable discretion, would be inconceivably strong. I have heard, him to pocket the money of the younger lien creditors. with surprise, an expression of regret, that the law had A pretence of right, on his part, to take satisfaction out not been so settled originally, as to subject the land, in of the land or purchase money, at his pleasure, and thus the hands of the purchaser, even to prior judgments. throw the burthen on the purchaser, or younger lien This must surely have been said without consideration. creditors, as his interest or caprice may dictate, would If each lien creditor were separately permitted to carve be monstrous-such a right would put him in a situation for himself, by selling just what might be sufficient to to make terms that would give him more than his debt. get his money out of the land, a great part of the estate How this pretence, which involves the same inconsis- would go among the retainers of the law. Full costs tency of opinion that I have already noticed in the case and poundage on every sale, would be just so much of a prior judgment, came to receive countenance, I taken out of the pockets of the younger lien creditors, know not. The difficulty might have been solved, by who would have come in for a share, had the land been a simple inquiry into the extent of the interest which turned into money, by one operation for the benefit of passed by a sheriff's deed. The whole drift of the ar- all. Beside, no one would be found willing to purchase, gument here, has been to prove that a sale on a younger except at a prodigious undervalue, with the certainty of judgment passes, not the estate of the older mortgagee, being annoyed by a series of executions to enforce the for that is supposed to be reversed, BUT THE EQUITY OF prior liens; and thus the younger lien creditors would REDEMPTION; in other words, the clear interest of the be kept at bay; and the same consequence, or one as mortgagor, which the judgment bound, and which the bad, would result from the sale on the oldest lien. The mortgage did NOT bind. It is not easy to see then, how principle insisted on is, that a creditor can sell no more the mortgagee could make pretence of right to what did than he holds by his lien: on no other hypothesis, than not pass by his deed; and which being the subject of that all beyond what is necessary to satisfaction belongs subsequent hypothecation by the debtor, constituted no to the debtor, could there be a resulting interest in him part of his security. To give him the benefit of that, to answer subsequent incumbrances. What right then would be a gratuity at the expense of the mortgagor would an older incumbrancer have which a younger one and the younger lien creditors. As well might the has not, to divest the security of any one else, farther general creditors of a partnership, demand the proceeds than may be necessary to produce satisfaction of his of a separate execution of the interest of one of the debt? The abstract principle, fairly carried out, would partners, which consist of what may remain after pay require him to sell an undivided interest, to the value ment of the joint debts, but, however inconsistent with of his incumbrance, and to strike it down as soon as the scope of the argument such a right of election would enough were obtained to satisfy the debt and costs. be, it is not more so than the modern practice which is This preposterous but necessary consequence of the said to prevail here. According to this, the sheriff sells, principle, has been put out of view by the legislature, neither subject to, nor altogether free from, prior mort- who foreseeing the inconvenience and confusion that gages, but subject, where less than the amount of the would ensue from selling the estate piecemeal, have inmortgage is bid, to affirmance or disaffirmance of the sale vested the purchaser with title to it, as it was held by by the mortgagee; according to which, the premises are the debtor. But a most oppressive consequence of the returned sold, or unsold for want of bidders. The un- doubt generated by the principle of the argument, and certainty of result, consequent on this, must necessarily communicated to the public mind by the imperfect rehave an unfavourable influence in preventing the at- port of Febiger's lessee v. Craighead, in the 4th volume tendance of purchasers; but the practice admits the of Mr. Dallas' reports, has been a sacrifice of property whole converse of the plaintiff's argument. It admits, to an incredible amount. It is not too much to compute that when a sale is effected, the whole estate, and not the this at ten per cent. on every judicial sale of land that equity of redemption merely, is sold, and that the mort- has since been made. Instances are within my know. gagee is bound to take satisfaction out of the purchase ledge of thirty per cent. on the purchase having been money. It may be reasonable, that a younger lien credit- offered in confidence of the purchaser's skill, by those or should not be at liberty to disturb an older incum-who, at the sale, refused to hazard a dollar on their brance, where there is no surplus to be got at; and at one time an idea prevailed in the country, on what authority I know not, that the sale might be set aside, if no part of the proceeds were found to reach the execution of the seizing creditor. We give no opinion about that, but it is evident that the same idea has given rise

own. Is it not equally the interest of lien creditors, whether by mortgage or judgment, as well as of the debtor himself, and, indeed, of all but those who specu late in bargains, that the land should go for its value? The public interest at stake is immense; and even if a temporary hardship, from the principle of Willard ».

76

SUSQUEHANNA AND LEHIGH CANAL CONVENTION.

Norris, were experiened in a particular quarter, it would be greatly more than counterbalanced by the permanent benefit that would result to the community at large. Public convenience, however, is supposed to require that this species of property be set apart, and consecrated to investment, by those who may be prevented by ab. sence, or other causes, from attending to their property. If this consideration were imperative, its requirements might be satisfied by the public stocks, which afford all proper facilities; but, even if they did not, there is no species of investment, that ought to be so sacred as to controul the maxim, that the public good is the supreme law. But the inconvenience that would have resulted to mortgage creditors, from the decision in Willard v. Norris, would have been neither permanent nor great. They would have ceased to invest in lands at a distance; and as to defrauding them by a sham sale, at an undervalue, that would have become impracticable the moment it was ascertained that the purchaser was to have an unincumbered title. But they would have suffered no more in this respect, or by reason of the apprehended insecurity of the purchase money in the sheriff's hands, than judgment creditors do at present; and I have heard no complaints by these, of losses from collusive or surreptitious sales by younger judgment creditEven if there were just ground of apprehension on this score, further precaution might be taken by the courts. Mortgage creditors have certainly not been treated as having peculiar claims to protection in other matters; as in cases of injury to the premises, under the road law, for which the mortgagor receives compensation, without notice to the mortgagee; and I am unable to see why his interest should be preferred to that of every one else in the matter of a judicial sale.

ors.

Columbia-Doct. Samuel Headly, George Ma John T. Davis, and James A. Gordon, Esqrs. Bradford-Hon. Edward Herrick, Dr. John N. W on, Co James P. Bull, John Laporte, Edward Overt William Patton, Elisha S. Goodrich, David Cash, E Lewis, Eliphalet Mason, and Simon Kinney, Esqrs. Mr. Brown presented a copy of the proceedings o meeting of citizens of Northampton county. Mr. Rice one of the citizens of Lehigh county, and Mr. Hazard one of a resolution of the Board of Ma gers of the Lehigh Coal and Navigation compar which were severally read, as follows:

At a meeting of the citizens of the county of Nor ampton, held at the court-house in the borough Easton, on the 24th day of June, 1831, in pursuance public notice, to take into consideration the propri of appointing Delegates to the proposed Convention be held at Towanda on the 4th day of July next, the purpose of adopting measures to procure the co struction of a Canal from the Lehigh to the Susqueha na, and for the extension of the North Branch Canal the State line, to connect with the Chemung Can Christian J. Hutter, Esq. was called to the Chair, a James M. Porter, Esq. appointed Secretary.

Alexander E. Brown, Esquire, submitted to the co sideration of the meeting the following Resolution which were read, and, the blank left for the names the Delegates having been filled, were unanimous adopted.

Resolved, That in the opinion of this meeting, it is great importance to this section of the Commonweal that measures should be speedily adopted for filling th stock of the Susquehanna and Lehigh Canal Compan in order to effectuate a water communication betwee the Susquehanna and Delaware rivers, by the route the Nescopeck and Lehigh.

It will be seen that the preceding remarks are intended for a mortgage not due. As between the mortgagee and purchaser, who, as owner of the equity of redemp Resolved, That we believe not only the people, tion, stands in the place of the mortgagor, it is impossi- this section of the State, but the city of Philadelphi ble to conceive of an objection to payment which con- and the whole country bordering on the west and Nort sists with the letter of the contract; and whatever might Branches of the Susquehanna, have a deep interest i be the right of the mortgagor or the intermediate lien the prosecution and completion of the proposed work creditor to demur to performance of the condition out as one calculated to enable the people to transport t of the money in the sheriff's hands, it is certain that the Philadelphia market, by means of a continuous wate the mortgagee himself could not, but standing in every communication, the agricultural and mineral product respect as a judgment creditor, he cannot object to pay-of the country bordering on the West and North Branch ment even before his debt is due; as has already been es of the Susquehanna, and in return, enabling the determined in the Commonwealth v. Alexander (16 Ser- Philadelphians to supply those regions with her manu geant and R. 257), and intimated in Barnet v. Washa- factures and merchandize. baugh (id. 410), and this disposes of the general question, which a respect for the opinion of counsel, who have doubted the soundness of the princple of Willard v. Norris, has induced to have re-argued on its original ground. It is unnecessary to say, that the result is a firm conviction of its solidity. It remains to inquire, how far it affects the plaintiff's lien on the whole, or any part, of the mortgaged premises. As to this, my opinion happens not to coincide with that of the majority; and the judgment of the court, on this part of the case, will be pronounced by my brother HUSTON.

From the Bradford Settler.

CANAL CONVENTION.

At a meeting of the delegates from counties on the borders of the North Branch of the Susquehanna and the Lehigh and Delaware rivers, at the court house in Towanda, Bradford county, on the 4th day of July A.D. 1831-Hon. Edward Herrick, of Bradford, was chosen President, Col. Jacob Drumheller, of Luzerne, and Simon Kinney, Esq. of Bradford, Vice Presidents,James A. Gordon, of Columbia, and William Patton, of Bradford, Secretaries.

The following named gentlemen appeared as Delegates.

Northampton-Owen Rice, Erskine Hazard, Alexander E. Brown and Josiah White, Esqrs. Luzerne-Col. Jacob Drumheller.

Resolved, That in furtherance of these advantages, i is proper and right that the canal or improvement of the stream on the North Branch, be prosecuted by the State until it shall reach the line of the state of New York, and thus, by a connection with the Chemung Canal, make an uninterrupted navigation from the New York State Canal through the Seneca Lake to the city of Philadelphia,

Resolved, That this meeting approve of the Conven tion proposed to be held at Towanda on the 4th of July next, for furthering the objects herein before stated, and that Owen Rice, Josiah White, and Alexander E. Brown Esquires, be Delegates to represent this county in the said Convention, with power to supply any vacancies that many occur in their number.

Resolved, That the proccedings of this meeting be published in the papers of this county, and that the Se cretary be directed to transmit a copy of these proceed. ings to Henry King, Christian Pretz, and Mathew Self redge, Esquires, of Allentown, with a request that they call a meeting of the citizens of Lehigh county, for the purpose of taking into consideration the propriety of sending Delegates from that county to the said Conven J. M. PORTER, Secretary.

tion.

At a meeting of the citizens of Lehigh, held at the house of Charles Seagrave, in the borough of Northamp ton, on the 27th day of June 1831, in pursuance of pub lic notice; on motion Solomon Gangwer, Esquire, was