(Leek v. Cowley and others.)

ting it aside. The releasors received no consideration from Peleg Leek, and the operation of the deed was inconsistent with its declared intent, viz: carrying into effect the will of James Cowley.. There was another point made by the defendant's counsel. He contended, that the defendant had paid some of the testator's debts, for which this land would have been liable, and therefore, the plaintiffs could not recover till he was reimbursed for these payments. But it was by no means clearly proved, that the defendant paid debts equal to the amount of personal property of the testator's estate, which came to his hands in right of his wife; nor was there any evidence that he had made any demand of the plaintiffs for reimbursement previous to the bringing of this suit. plaintiffs have a legal right to the land, and if the defendant has any claim against them, for money paid on account of the testators estate, he may have his action against them. I am of opinion, that there is no error in the record, and therefore, the judgment should be affirmed.

The

Judgment affirmed.

[SUNBURY, June 23, 1823.]

The Directors of the Poor of the House of Employment of Bucks county against the Overseers of the Poor of the Township of Brier Creek, in the county of Columbia.

APPEAL

An United States tax is not a public tax, the payment of which gives a right of set. tlement under the act of 1771.

AN order was made by two justices of the peace of Columbia county, for the removal of Jacob Reder and his wife, who were paupers, from the township of Brier Creek to the county of Bucks. On appeal to the Court of Quarter Sessions of Columbia county, the order was quashed, and the paupers directed to be maintained by the township of Brier Creek. An appeal was entered from the order of the sessions of this court, and the case depended on a single question, viz: whether the pauper, Jacob Reder, gained a settlement in Brier Creek township by the payment of taxes to the United States for two years successively, amounting to 183 cents, while he resided there.

The act, entitled an act for the relief of the poor, passed 9th March, 1771, Sect. 17, (Purd. Dig. 529,) enacts, that "if any person who shall come to inhabit in the said city of Philadelphia, or in any borough, township, or place, in this province, shall for himself, and on his own account, execute any public office, being

(The Directors of the Poor of the House of Employment of Bucks county v. The Overseers of the Poor of the township of Brier Creek in the county of Columbia.) legally placed therein, in the said city, borough, township, or place, during one whole year; or if any person shall be charged with, and pay his or her share towards the public taxes, or levies for the poor of the said city, borough, township or place, for two years successively, &c. such person shall be adjudged and deemed to gain a legal settlement in the said city, borough, township, or place, respectively, &c."

Greenough, for Brier Creek township, referred to the case of The Directors of the Poor of Bucks county v. The Guardians of the Poor of Philadelphia, 5 Serg. & Rawle, 417, where it was held, that a settlement may be gained under this act by paying a public tax, such as a county tax, and that the act is not limited to the payment of a poor tax. In the same case it appears, that the words "public tax," were introduced into this act instead of the words "county tax," which were used in former laws, for the purpose of embracing provincial taxes. But the legislature could not have contemplated United States taxes in the use of these words: they could not foresee a revolution and a new government which would possess authority to lay new taxes. If the words "public tax," embrace United States taxes, then the words "public office," may comprehend an office held under the authority of the United States. But this construction could not for one moment be contended for.

Grier and Hepburn, contra. The words of the act of 1771, are large enough to embrace this case: an United States tax is a "public tax. It is a lawful duty or impost: and it is derived from the public authority of the nation. The state is represented in congress, and has authorized the tax: and the United States is a government for the respective states, supreme and sovereign in imposing constitutional taxes. The principle of the act of assembly is, that those who contribute a share to the general interest of the community, shall be entitled to relief when reduced to poverty. It is objected, that the United States government could not have been foreseen by the legislature, and therefore, was not within its intention: but the same argument would apply to the state government, which sprang from the revolution, and there can be no doubt, state taxes are public taxes, within the meaning of the act. As to United States offices, there is no reason why they should fall® within the act.

The opinion of the court was delivered by

TILGHMAN, C. J. By the act for the relief of the poor, passed the 9th March, 1771, Sect, 17, it is enacted, "that if any person who shall come to inhabit in the city of Philadelphia, or in any borough, township or place, in this province, shall, for himself, and on his own account, execute any public office, being legally placed therein, in the said city, borough, township or place, during one whole year, or if any person shall be charged with, and pay his or

(The Directors of the Poor of the House of Employment of Bucks county v. The Overseers of the Poor of the township of Brier Creek in the county of Columbia.) her share towards the public taxes, or levies for the poor of the said city, borough, township or place, for two years successively, such person shall be adjudged and deemed to gain a legal settlement,' &c. It was once a question whether the payment of any but a poor tax gained a settlement under this law; but this court decided, in the case of Bucks County v. Philadelphia, 5 Serg. & Rawle, 417, that a settlement might be gained by the payment of a county tax, that being a public tax. It is now contended, that a direct tax, laid by the congress of the United States, is a public tax, and therefore, a settlement is gained by the payment of it. Undoubtedly it is a public tax, but it does not follow, that it was within the intent of the act of assembly. It could not have been contemplated by the legislature of Pennsylvania, in the year 1771, that a political revolution would take place, in consequence of which, this state would be associated with a number of others, in a federal government. A tax of this kind could not, therefore, have been directly intended. But it is said, that neither could any tax have been directly intended, which should be laid under the authority of the state, for county purposes, after she threw off the authority of the British crown, and became independent. There is a great difference, however, between taxes laid by the authority of the state, for her own particular use, and for the use of a government, composed of many states, of which she is a member. And there is much more reason for considering the former as within the meaning of the act of 1771, than the latter. State taxes, county taxes, and poor taxes, laid since the revolution, are applied to precisely the same purposes as they were before it. So far as respected them, the change of government was but nominal. There was reason,

therefore, to conclude, that as to them, a settlement should continue to be gained under the state, as it had formerly been under the province of Pennsylvania. But a tax laid by the federal government is quite a different thing, and laid for quite different purposes. The money may be applied to purposes in which the state has but a remote concern; nor can it in any sense, (so far as respects Pennsylvania,) be considered as a public tax, except that the people of the state have consented, that congress should have power to lay it. To be sure, it is of a public nature, and it is lawfully laid. But it is not, in any point of view, a state tax, and therefore, it seems to me, it would be straining the act of 1771, to an unaccountable extent, to make it embrace a tax of this kind. It has nothing local in its nature, and there is no reason why the payment of it should throw the burthen of a pauper's maintenance on one township, rather than on another. There is another reason why the payment of this tax should not gain a settlement. In order to preserve uniformity of principle, if we say, that payment of an United States tax, gains a settlement, we must say also, that executing an office under the United States, would gain one; a proposition

(The Directors of the Poor of the House of Employment of Bucks county v. The Overseers of the Poor of the township of Brier Creek in the county of Columbia.) which could hardly be seriously contended for. If the legislature should think it politic to annex the right of a settlement, to the payment of a tax laid by the United States, a law will, no doubt, be made for that purpose. In the meantime, it would be usurping the legislative functions, for this court to say, that such right was given by the act of 1771. I am of opinion, therefore, that the order of the Court of Quarter Sessions should be quashed, and the order of the justices affirmed.

Order of the Court of Quarter Sessions quashed, and the order of the justices affirmed.

[SUNBURY, JUNE 30, 1823.]

FREDERICK and others against GRAY.

IN ERROR.

The admittance or rejection of a witness offered after the evidence has been con cluded, and counsel have commenced speaking, is a matter of discretion with the court, and is not a subject of error.

If a person to whom land is devised on condition of releasing a debt due by the testator, receives the debt, the title to the land is relinquished, and the receipt of the money from a third person, vests no title to the land in such third person. Yet if such third person takes possession, and is suffered to hold it by the family, and the money was the full value, and the payment was known and acquiesced in by the heir, and improvements were made, especially if it was of land held under warrant and survey, and the transaction was before 1760, when this was considered personal property, it seems, chancery would direct a conveyance.

Devise of a moiety of a tract to be taken off the side nearest the testator's brother, and the other moiety to another: the devisees are not tenants in common, but either may support ejectment.

When one tenant in common enters on the whole, and takes the profits, and claims the whole exclusively for 21 years, the jury ought to presume an actual ouster, though none be proved.

ERROR to the Court of Common Pleas of Mifflin county, specially held before REED, President, and the associate judges of Mifflin county, in pursuance of the act of assembly.

"I

It was an ejectment for part of a tract of land in that county. Both parties claimed under John Gray, the elder, who died seised in fee of the whole tract, in 1759, or 1760, having made his will, dated the 12th April, 1759, by which he devised as follows: give unto my sister, Mary Gray, one full half of my plantation lying and situate on Juniata river, in Tuscarora valley, to be taken off the side lying next to my brother James Gray's plantation, upon this condition, that she pay to my nephew John Gray, (son of James Gray,) the sum of £5 in one year after my decease, and in consideration of her making no demand of £ 13 I formerly borrowed of her. The other half of my said plantation I give unto my

(Frederick and others v. Gray.)

loving wife, Hannah Gray, and my daughter, Jane Gray, to bę divided between them share and share alike: but in case my said wife should die before the execution of this my will, or never return from captivity, then her part both of real and personal estate bequeathed to her to remain to my daughter June. And if it should so happen that my daughter Jane should die, or not return from her captivity, and my wife return and survive her, so, in like manner, that part given to my daughter shall remain in my wife and her heirs for ever." At the time of making the will, the testator's wife and daughter, who had been made prisoners and carried off by the Indians, were in captivity. The wife afterwards returned, but the child never did, in consequence of which her mother became entititled to her share of the estate. The testator made his sister Mary Gray, the executrix of his will, and his daughter being dead his eldest brother James was his heir. The plaintiffs, who were children of John Gray, son of James, (the heir of the testator,) claimed under the said James, and also under Mary Gray, sister and devisee of the testator, by virtue of a deed from her to John Gray, father of the plaintiffs, dated the 21st May, 1803. The defendant claimed under Hannah Gray, the wife of the testator; and the land in dispute was that part which was devised to Mary Gray, the sister of the testator. It would seem, that Mary Gray did not accept the devise made to her, because she did not comply with the condition of relinquishing the debt of £ 13 due to her from the testator. This appeared by a written receipt signed by her, and dated August 19th, 1760, in the following words: "Received of Hannah Gray, the sum of £16, it being in full of all debts, dues and demands against the estate of John Gray." Hannah Gray, the widow of the testator, by whom this sum of £16 was paid, married a certain Enoch Williams, and the whole tract was held by them for upwards of twenty one years, when John Gray, son of James, got the possession and held it until he was dispossessed by an ejectment brought against him by Enoch Williams and wife. In what manner John Gray, obtained the possession was matter of dispute. The plaintiffs alleged that he entered by order and in right of his father James Gray, the heir of the testator. But the defendant averred, that he came into possession fraudulently and in collusion with the tenant Williams.

On the trial in the court below, exceptions were taken by the defendant below to the opinion of the court, rejecting evidence, and also to various parts of their charge to the jury, in answer to points proposed. Of the former, however, only two became material in the argument in this court.

1. After the evidence was closed, and one counsel on each side had addressed the jury, a witness named John Patterson, was brought in on an attachment for contempt, which issued after he had been subpænaed on behalf of the defendant, and was now offered as