1811. RANKIN, against COOPER. person could be found within the jurisdiction, who could prove his hand writing, evidence of the hand writing of the administrator, obligor was admitted. So, in this case, he said, that there &c. being no subscribing witness, it was impossible to produce any; and therefore, proof of the party's hand writing was the best evidence of the sealing, which the nature of the case would admit. As to the delivery, the release was in possession of the defendant, which was the strongest evidence thereof. On the second point he observed, that if the court should be of opinion, that this paper could not be considered in the light of a release, properly speaking; or if they should think, that to entitle Crousillat to execute a release in the name of Rankin, he should have been authorized by a power of attorney under seal, he would, in either case, submit to the court, whether the paper was not strictly legal testimony under the plea of "payment;" in order to induce a belief in the minds of the jury that the debt was, to the satisfaction of the plaintiff's intestate, fully paid and settled; and, from the deposition of Washington Perkins it was easy to collect sufficient evidence of the general authority vested by Rankin in Crousillat" to settle and adjust all his concerns." Chief Justice Tilghman(a) had cited with approbation the case of Butler against Rhodes,(b) where Lord Kenyon ruled, that a creditor, who had verbally agreed to take a composition from his debtor, in consequence of which the debtor had made an assignment of all his estate, was not permitted to relinquish the composition and maintain an action for his debt. Phillips, in reply, remarked, that the paper purported to be under seal, and therefore must be admitted as a release, or it could not be received in evidence at all: and against admitting it as a release there was an insurmountable objection, viz. That Crousillat had not produced any authority under seal from Rankin. Per CURIAM. Hemphill, president. (a) 2 Bin. Rep. 182, Lippincott against Barker. 1811. RANKIN, &c. It is unnecessary to give any opinion on the objection that there is no evidence of the scaling and delivery of this paper, as the court are clearly of opinion, that it is inadmissible on administrator, the other ground. Before the instrument can be admitted as evidence, it is incumbent on the defendant to shew, that Crousillat was authorized, by deed, to execute a release for Rankin. Evidence rejected.* against COOPER, A BOUTLIER against JOHNSON. 1811. June 6. The court refused to or der that a rule DDIS for the plaintiff, moved for a commission to foreign parts, on the usual terms, which was granted. He had instituted the suit at the instance of the wife of the plain- for a commistiff, the plaintiff being at sea. sion should stay until the attorney ap plying for the led his war rant. Peters now moved for a rule on the plaintiff's attorney to commission fi file his warrant of attorney, returnable the next Saturday; and also, prayed that the rule for a commission might stay, until the power was filed; But Per CURIAM. Hemphill, president. It is not unusual to issue writs in this way: we will grant the rule to file the warrant of attorney, returnable the next term; but the commission may issue in the mean time. 1. Rule on the plaintiff's attorney to file his warrant, rẹturnable next term. *To this opinion a bill of exceptions was tendered and signed, after which a writ of error was taken to the supreme court. VOL. II. No. 1. 1811. June 17. When computation of time is made from an act HAMPTON, assignee of KNIGHT against ERENZELLER and IN N this case it appeared, that a rule of reference had been entered on the 14th day of March, 1811, agreeably to the act" regulating arbitrations," passed the 20th day of done, the day on which the March, 1810; that an award in favour of the plaintiff for five act was done hundred and forty one dollars and one cent, was entered on the docket, in the office of the prothonotary, on the 12th day of April, 1811; that the defendant had entered an appeal, with bail and recognizance, on the 2d day of May 1811; and that on day is excluded the 3d day of May, the plaintiff's attorney excepted to the bail, who justified on the 6th of the same month. must be included; but when the com. putation is from the day itself, then the There are no fructions of a day, unless to prevent a great mischief Phillips, for the plaintiff, obtained a rule to shew cause The day on why the appeal should not be struck off, on the ground that ward of arbi- it was not entered within the time prescribed by the Arbitrators is en- tration Act. which an a tered, is in cluded in the He contended, that the day on which the award was filed twenty days, in the office, and the day on which the appeal was entered, within which be entered. Excepting an appeal must must both be considered as part of the twenty days, within which the act requires the appeal to be entered; according to the bail on to which computation, the appeal in this case was entered on an appeal from the decision of the 21st day after the filing of the award. arbitrators, is not a waver of the right to Addis, for the defendants, replied, that in all judicial promove to strike ceedings, where an act was required to be done within a off the appeal. given number of days, one day was considered as inclusive, and the other as exclusive. The words of the arbitration act are, that the appeal shall be entered "within twenty days af❝ter the entry of the award of arbitrators on the docket;" from which it was evident, that the legislature did not intend, that the day on which the award was entered should be considered as one of the twenty days. He also insisted, that the plaintiff had waved his right of objecting to the appeal, by excepting to the bail. Per CURIAM. Hemphill, president. If the day on which the appeal was entered is to be excluded, the appeal will be within time, if included, the appeal is too late. The rule of law is, that when the computation is to be made from an act done, the day on which the act was done must be included; but when the computation is to be from the day itself, and not from the act done, then the day on which the act was done must be excluded. It is also a rule of law, that there is no fraction of a day, unless where it is to prevent a great mischief or inconvenience;(a) the words in the eleventh section of the arbitration act are " And the par❝ty, his, her, or their agent or attorney, shall enter such ap“peal with the prothonotary of the proper county, with the "bail and recognizance hereinafter required, within twenty "days after the entry of the award of the arbitrators on his "docket." The court are of opinion that the day on which the entry of the award was made is to be included, and that therefore, in this case, the appeal has been entered too late. It has also been contended, that the plaintiff waved his right of objecting to the appeal by excepting to the bail: the court cannot consider the circumstance of merely excepting to the bail, in that point of view; it was an act done immediately after the appeal was entered, and in opposition to the appeal. Let the rule to shew cause why the appeal should not be stricken off be made absolute. Rule absolute. 1811. HAMPTON assignee of KNIGHT against ERENZELLER and BAKER. (a) 1 Lord Raymond 281. 20th Viner's Abt. 268, 7, 8. tit. time letter A. 2 Roll's Abt. 520. pl. 8. 1811. June 17. The court refused to strike off a rule for arbitration, which had been entered by a plaintiff, in an action commenced by a capias, after the de. fendant had appeared by counsel but betore special entered. PAUL against PURCELL. PAUL against M.KEE. HESE actions, one against the drawer, and the other against the indorser of a promissory note, were instituted to June term, 1811, by writs of capias, to which the sheriff returned “ cepi corpus and bail bond." Before the return day, Addis, had entered his appearance for both the defendOn the 4th of June, the next day after the return day, and before special bail had been put in, the plaintiff entered rules for arbitration. ants. Addis, for the defendants, had obtained rules, returnable bail had been this day, on the plaintiff, to shew cause why the rules for arbitration should not be struck off, on the ground that the deQuere, if the bail is thereby fendants were not in court, special bail not having been entered at the time the rules of arbitration were entered by the plaintiff. waved? He contended, that the defendant's appearance could be effected only by his entering special bail, and that he was never considered as in court, until the special bail was entered, even though he had appeared by attorney.(a) That the plaintiff could not try the cause by a jury, until special bail was entered; and that although the words of the arbitration law were very general, still it never could have been the intention of the legislature, to allow a party to arbitrate a cause which was in such a state that it could not be tried, and which, strictly and legally speaking, was not in court. Lloyd contra, admitted, that in England the law was as stated by the defendant's counsel, but contended that the practice in Pennsylvania was, in some respect, different. In England, the plaintiff's filing a declaration before the special bail was entered, unless it be filed de bene esse, was of itself, a waver of the bail; but in Pennsylvania, the practice had (a) 3 Black. Com. 290. 1. 3 Viner's abt. 464, title bail. |