1808. and though but a newspaper report, yet I incline to think it CALHOUN genuine, and extract it here as it stands in the Gazette.* υ. Ins. Co. Penn. Applying the doctrine of this case to that before us, it would seem to be immaterial what the Captain thought in his declaration, or whether he thought at all. It was wilful, and intended benefit to himself or owner: it was mischievous; and taking it, to be the cause of the loss, it was barratry. So that quacunque via the insurers are liable. New trial refused, and • Since reported in 8 East 126. Tuesday, March 29th. appeal from the board of property to Common Pleas, al though an act of Assembly di ficers of that The Commonwealth against COCHRAN and others, does not lie N June 1773 James Moore agreed with Alexander Hunter IN and William M Cord to take up lands, in which they were to be equally interested; but the purchase money in the first inthe Court of stance was to be wholly advanced by Moore, and one third was afterwards to be repaid by each of his partners. The purchase was accordingly made, and six of the warrantees conveyed to Hunter. The land fell within the seventeen townships. All the rects the of parties released to the Commonwealth under the act of 4th April 1799, but the commissioners awarded the valuation to Moore alone, no part of the purchase money having been repaid to him. Hunter and M'Cord's representatives entered a caveat in the case of an Appeal. land office against issuing a ticket to the Comptroller and ReThe only mode of con- gister General in Moore's favour, and they were heard by the testing their board of property upon the question of their right to a part of decision is the valuation; but the caveat was dismissed. The board howby an action between the ever withheld the ticket in conformity to the third section of the parties in the law above mentioned, which among other things provides, that ordinary board to do certain things in way. "In case of disputes between Pennsylvania claimants before wealth COCHRAN. peal from the decision of the board of property, the certifi- 1808. "cates shall not issue until the dispute is decided." 4 St. Laws Common400. Hunter and M'Cord appealed from the decision of the board of property to the Common Pleas of Lancaster county, and the appeal was afterwards removed to the Circuit Court. In December 1805 Ingersoll, upon the affidavit of Moore's administrator, obtained a rule upon the defendants to shew cause why a mandamus should not issue to them to grant the ticket to him for the whole valuation; and his ground was, that no appeal was authorized by law, although the word appeal was used; but that an action was the only mode of settling the dispute, which the losing party had omitted too long to adopt, now to prevent the board of property from putting the successful party in possession of his rights. The propriety of the appeal and also of the mandamus, were by consent blended in argument at the present term by Ingersoll for Moore, and by Tilghman for Hunter and M'Cord; and the judges now delivered their opinions upon both questions. TILGHMAN C. J. This case arises under the act of 4th April 1799" for offering compensation to the Pennsylvania claimants "of certain lands within the seventeen townships in the county "of Luzerne." 4 St. Laws 400. The third section of this law enacts, that in case of disputes between the Pennsylvania claimants, (before the issuing of the certificates in pursuance of the act) such disputes shall be decided by the board of property according to the general usage; provided that their decision shall not prevent the party against whom it is made, from prosecuting his claim in the courts of law as usual, and in case of an appeal from the decision, the certificates shall not issue till the dispute shall be decided. There was a dispute before the board of property, between Alexander Hunter and the representatives of William McCord deceased plaintiffs, and the administrator of James Moore defendant. The board decided in favour of the defendant, and dismissed the caveat of the plaintiffs. The party against whom the decision was made, entered an appeal to the Court of Common Pleas of Lancaster county, which was removed to the Circuit Court of the same county. On the other hand, the administrator of Moore has applied to this court for a mandamus, to compel the officers of the land office to issue a ticket to him, by which 1808. he may be enabled to receive from the Commonwealth the whole money at which the land was valued. We are now to deCommonwealth cide on the appeal and the mandamus. I think it very clear that v. the appeal must be dismissed; there is no law or precedent auCOCHRAN thorizing an appeal from the board of property to the Court of Common Pleas of any county. The only mode of appeal is by bringing an action at law. But in the present case there is great difficulty in bringing an action. The party against whom the board of property decided, cannot bring an ejectment, because he has released his title to the Commonwealth. Neither can he bring an action for money received by his adversary for his use, because no money has yet been received. Under these circumstances I do not think it right to issue a mandamus. The appeal being dismissed, the board of property are at liberty to act according to their discretion. And I should think it no abuse of that discretion, if they were to say, that inasmuch as it was the clear intent of the legislature that no money should be paid, till the party against whom they decided had an opportunity of a trial in nature of an appeal, and as such trial cannot be had unless the parties by mutual consent agree upon some mode of bringing the matter before a court of law, they will withhold the ticket until the administrator of James Moore consents to put the matter in train for a speedy decision. If after this intimation, any affectation of delay should be manifested by the party against whom the board have decided, a ticket might be issued to Moore immediately. YEATES J. The proviso in the third section of the act of 4th April 1799 is involved in great obscurity, from its not prescribing the mode of appeal from the decision of the board of property. I am strongly inclined to believe that it must be by action at law. But in what form? The Pennsylvania claimant must release to the state before he can be entitled to compensation; and when he is divested of his title, he cannot support ejectment. The words are," the certificates shall not issue un"til the dispute shall be decided." Until the money is paid, I do not see what kind of personal action can be maintained. The board of property are to decide in case of disputes between Pennsylvania claimants, according to the general usage. They seem to have done so in the present case. The appeal must be dismissed as irregularly made to the Common Pleas 1808. Common υ. of Lancaster county. But if Alexander Hunter and John Cook are willing to institute a suit to try their right, I do not see how the certificate can be issued until that matter is settled. It will wealth be found the interest of all parties to agree on some amicable mode of deciding the dispute. The motion for a mandamus as to the ticket must be denied, as it goes to the Comptroller and Register General. SMITH J. was not present at the argument. COCHRAN BRACKENRIDGE J. concurred. Appeal dismissed, and CHAMPNEYS against LYLE and others, assignees of Saturday, RICHARD MARIS and JOHN DAVIS, bankrupts. THIS April 2. sureties in house bonds HIS was an action for money had and received to the The preferplaintiff's use. On the 11th and 15th April 1801, Champ-ence given neys, as the surety of Maris, executed three bonds to the United 1st March States for duties upon goods imported, which he afterwards 1799, to paid. Maris became a bankrupt within the act of Congress custompassed the 4th of April 1800, and this action was brought who pay the against his assignees to recover the full amount of the sum paid to the United States, with interest up to the time of judgment, states, is not in preference to the other creditors. The jury found a verdict taken away for the plaintiff for his whole demand, subject to the opinion of the court upon two points: same to the United by the bankrupt act; the surety is entitled to pri 1. Whether the preference given to sureties in bonds for the ority of paypayment of duties by the act of 1st March 1799, was taken ment out of away by the bankrupt act of 4th April 1800. the bankrupt's estate 2. If not, then whether the plaintiff was entitled to recover in- for both principal and terest subsequent to the date of the commission of bankruptcy. interest. By the 65th section of the " Act to regulate the collection of "duties on imports and tonnage," it is enacted that in all cases of insolvency, or where any estate in the hands of the executors, administrators or assignees, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States on any bond for the payment of duties shall be first satis fied; and if the principal be insolvent, and the surety shall pay, he shall have the like advantage, priority, or preference, for the recovery of the money out of the estate and effects of the prinpal, as are reserved to the United States. It also provides that on all bonds on which suits shall be commenced, an interest shall be allowed, at the rate of six per cent. per annum, from the time when they became due, until the payment thereof. 66 By the 31st section of the " Act to establish a uniform sys"tem of bankruptcy," it is enacted" that in the distribution of "the bankrupt's effects, there shall be paid to every of the creditors a portion rate, according to the amount of their respective "debts, so that every creditor having security for his debt by "judgment, statute, recognisance, or specialty, or having an at"tachment under any of the laws of the individual states or of "the United States on the estate of such bankrupt, provided "there be no execution executed upon any of the real or per"sonal estate of such bankrupt before the time he or she became bankrupt, shall not be relieved upon any such judgment, statute, recognisance, specialty, or attachment, for more than "a rateable part of his debt, with the other creditors of the "bankrupt;" and the 62d section enacts "that nothing in "this law contained, shall in any manner affect the right of "preference to prior satisfaction of debts due to the Uni"ted States, as secured or provided by any law heretofore passed." The points were argued by Milnor and Ingersoll for the plaintiff, and by Rawle for the defendants. For the plaintiff. The first question is whether the bankrupt law constructively repeals the provision in the 65th section of the act of 1799 which gives the plaintiff a preference; for it is clearly no repeal in terms. In the case of constructive repeals, it is requisite that a plain intention to this effect should be shewn by the legislature; for if the statutes can stand together, it shall be presumed to be so intended until the contrary manifestly appears. That a repeal could not have been intended by Congress, is obvious from many circumstances. In the first place, the case of the plaintiff, a case of clear preference prior to the bankrupt act, is not enumerated in the 31st section, with |