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APRIL, Cralle, for the great trouble and expense which he incurred

1810.

Betts

V.

Cralle.

on his account.

Call, contra, did not pretend to justify Crallè's conduct in tearing the bond; but neither could Betts be justified in endeavouring to impose on him. According to the terms of the original agreement, all that Betts had a right to, (the land being lost,) was his proportion of such damages* as might be recovered of MConico; but he was certainly not entitled to the land, having not complied with the agreement on his part. The first bond, therefore, smells of imposition; being for an absolute conveyance of 300 acres of land which Betts was not entitled to; and the last bonds were without any consideration at all. Cralle's weakness and fear of being prosecuted for tearing the bond, are not sufficient reasons to bind him. There is strong reason from the testimony to believe that M.Conico's land, with due diligence, might have been found. If a man covenant to do a thing, he is bound to do it at all events, if it be practicable. Nothing can discharge him, but proving it to be impossible.

The decree was right, except that the Chancellor ought not to have given Betts the land: for he is not entitled to any thing.

Wickham, in reply. The Chancellor's directing the 300 acres to be conveyed was a matter of moonshine; having himself decided that no such land existed. Mr. Call sets off the improper conduct of Betts against that of Crallè:

*Note by the Reporter. The original agreement, bearing date the 13th of March, 1794, (which was among the exhibits, though not described as a written contract, either in the bill or answer,) contained a clause "that in case the land could not be found, Betts was to have, in proportion of money and damages that Cralle might recover of M'Conico for his non-compliance in making him a lawful title to the said 3,000 acres of land, as 500 is to 3,000; and the said Cralle was to bear the above proportion of the expenses attending the laying off the said 3,000 acres of land, and other contingent expenses, in like proportion as 300 is to 3,000.

but there is no proof of any improper conduct on the part
of Betts; nor even of any negligence. It was his own in-
terest to find the land; for he was to have part of it.
Cralle's own measure of diligence was a good rule to
measure that which Betts was bound to exert. He went
himself to Kentucky, and had the same land surveyed.
The bond for the 300 acres was not a void act. The
parties were able to bind themselves by their contract, and
did so.
Mr. Call contends that Betts committed a fraud
in taking that bond; the condition being to make an abso-
lute conveyance. But, the bond having been destroyed by
Crallè, this cannot now be presumed in his favour: on the
contrary, the bond should be presumed to have been in
pursuance of the contract.

Neither is there any proof that the money bonds were obtained by terror. Betts accepted them in bar of his claim under the original contract, as well as in satisfaction for the trespass. How, then, can he have the benefit of that contract now? The Chancellor ought, indeed, upon annulling the compromise, to have restored us to our original cause of action: but this he has not done.

Friday, April 27th. The Judges pronounced their opinions.

Judge TUCKER. The circumstances of this case appear to be extremely hard. The complainant appears to be a loser, without the fraud, default, or neglect of the defendant, who seems to have proceeded to perform his undertaking to have the lands, purchased of M-Conico, in Kentucky, surveyed with fidelity, and, as far as in him lay, with prudence and discretion. The county surveyor, a sworn public officer, was, of all others, the person most proper to apply to, to point out and divide lands located in a wilderness. That the surveyor acted unfaithfully appears evident from his own depositions. He imposed first upon Betts, and afterwards upon Grallè himself. It would seem

APRIL,

1810.

Betts

V.

Cralle.

APRIL, 1810.

Betts

V.

Calle.

to me that the bond which Crallè tore, being given by him and accepted by Betts for a conveyance of lands therein particularly described, was pleadable in bar of any action or suit for a specific performance of the original contract, or for damages for the breach thereof; (except, perhaps, for expenses incurred by Betts;) consequently, Mr. Call is mistaken in supposing Betts might still avail himself of that contract. The second and third bonds, given when the compromise took place, not only in full satisfaction for the 300 acres of land claimed by Betts, but as full compensation to him for his services rendered, cannot therefore be said to have been given without any consideration. Cralle either has or may have, the whole lands, now, if found; or, if they cannot be found, he has his action against M-Conico for damages. Of those damages Betts, under the original contract was entitled to a proportion; to which, as also to all other recompense for his trouble and expenses, he has by the compromise yielded all claim. I cannot think it competent to a Court of Chancery to set aside so many deliberate acts between the parties, and reinstate the original contract between them. I am therefore of opinion, that the Chancellor erred in reversing the decree of the County Court, and that his decree ought to be reversed, and that of the County Court established and affirmed.

Judges ROANE and FLEMING, were of the same opinion. The decree of the Chancellor was therefore unanimously reversed, and that of the County Court affi med.

5

Marshall against Frisbie.

Monday, April 30.

1. An order

city of Phila

that a com.

IN an action of trespass on the case by Nathaniel Frisbie of Court granting leave to against Almarine Marshall, in the County Court of Wythe, take a deposi a commission was granted the defendant on the 15th of tion in the June, 1796, to take the deposition of Philip Dick, of the delphia, being, "by consent city of Philadelphia; "and Benjamin Jones, Willium Kenner, of parties, and any three aldermen of the said city, to take the same mission issue to any four by consent of the parties;" and the same was granted the aldermen of the said city plaintiff. On the 11th of July, 1797, by consent of the and W. K parties, it was ordered that a commission issue" four aldermen of the city of Philadelphia, and Kenner," to take the deposition of the same September 14th, 1797, the following order was "Continued at the plaintiff's costs. And, by consent of the parties, order granted for new commissions to take deposi- to R. K altions."

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A commission was issued, November 24th, 1798, " to delphia, and four other perReynold Keen, gent., alderman of the city of Philadelphia, son by name, and John Gibson, William Rogers, Robert Underwood, and be aldermen, (and omitting W. K,) "any

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three of whom to act, if the whole cannot," should be presumed to have been directed to persons agreed upon by the parties, but whose names were omitted by the Clerk in entering the last order; no objection having been made, in the Court below, on account of any real or supposed variance between the first and second orders and the commission.

2. A commission directed to five persons, ("any three of whom to act," cannot be executed by one only: and a return, by one, that three others were present when the deposition was taken, is not sufficient. It should be certified by three, at least, who were present.

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3. A deposition, taken at a time and place not mentioned in the notice, may be read as evidence; an agent of the party to whom the notice was given, duly authorized to attend to the taking of such deposition, having appeared at the time and place appointed, and consented to a postponement to such other time and place. And if, in other respects, the commission be regularly executed and returned, the Court will presume from circumstances, that the person who gave the consent was the authorized agent of the party.

4 Quare, whether Commissioners appointed to take depositions can, "by their own mere authority, adjourn the taking thereof to any other convenient time and place, in the event that the business cannot readily he finished on the day, and at the place, to which the notice applies;" no intended adjourument, from day to day until the business be finished, being expressed in such notice?

APRIL, 1810.

Marshall

V.

Frisbie.

David Denniston (any three of whom to act if the whole cannot) of the same city," &c. in the usual form.

The notice from Frisbie to Marshall, appointed "the house of Philip Dick, grocer in Market Street, Philadelphia, on the 19th day of December, 1798," to take the deposition, which was taken and certified in the following manner:

"Philadelphia, ss. By virtue of a commission from the Commonwealth of Virginia, issued, &c. to me Reynold Keen, one of the aldermen of the said city directed, I was called upon the 19th day of December, inst. by John Gibson, William Rogers and Robert Underwood, to go to the house of Philip Dick, in the said city, to take his deposition in an action now depending, &c.; and William Jones likewise appearing on the part of the defendant; it was agreed by the said John Gibson, William Rogers, and Robert Underwood, the Commissioners in the said commission named, as well as on the part of William Jones, the defendant's representative, that the taking of the deposition be postponed to the 21st December, then for the greater convenience to meet at the office of the said alderman Reynold Keen. Whereupon, this said 21st of December, 1798, I have caused to come before me the said Philip Dick, in the presence of the said Commissioners, and in the presence of William Jones, the representative of the said defendant, and he the said Philip, being sworn, &c. did depose and say," &c. (here inserting his testimony; and concluding as follows:) "The foregoing with the interrogatories sworn to and subscribed before Reynold Keen. P. Dick." On

the 12th of June, 1799, 10th of April, 1799, and 12th of November, 1800, Juries were empannelled, but not agreeing, were discharged, the plaintiff having at the trials on the 10th of April, 1799, and 12th of November, 1800, offered in evidence the deposition taken as aforesaid, to which the defendant excepted, but his objections were overruled. On the 13th of June, 1800, a verdict was found for the defendant, but a new trial awarded.

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