(M'Williams v. Hopkins.)

Mr. Earle, contra, was requested by the Court, to confine himself to the 1st, 2d, and 6th exceptions.

1. The record shows that the testimony was taken, to be used in this case. The defendant came in, and made himself a party. [HUSTON, J.-It is settled in England, that a demurrer will lie to a bill of this kind, if there is no impediment to the plaintiff trying his right at law, unless the witnesses are old and infirm. There was a case of Blaine v. Chambers, before the late Judge Smith on the Circuit, in which the rule was declared to be the same here; and his opinion was afterwards confirmed by the whole Court.]

2. There is no sound reason for excluding members of the bar from fees as witnesses. They are not required to be in attendance upon the Court, excepting when their causes are 'on trial; and the fiction of their perpetual presence ought not to be allowed to operate against them.

6. The witnesses attended the taxation in consequence of notice from the opposite party. This may be called "attendance in Court," within the act of Assembly; since the Prothonotary is an officer of the Court, and supposed to be in their presence.

PER CURIAM.-The costs of the bill to perpetuate testimony must be struck out, as not having been incurred in the cause, but in a distinct proceeding. The plaintiff may yet have the benefit of the evidence against some one else, as amply as she has had it, against the defendant; and it is unfair that he alone should bear the expense of it. of it. The charge for the attendance, as witnesses, of gentlemen of the profession, who are in contemplation of law, always present in courts, where they actually practice, must also go out. So, also, the charge for the attendance of witnesses before the Prothonotary, at the time of taxation. The practice is to take the affidavit of the party at the foot of the bill, for prima facie evidence of its accuracy; and the witnesses therefore need not have been produced. The rest of the Bill is allowed.

Taxation confirmed, subject to the preceding exceptions.

SERGEANT, J. having been of counsel with one of the parties in the case of M Williams v. Swift, did not sit in this case.

[PHILADELPHIA, FEBRUARY 6, 1836.]

DREW against The COMMONWEALTH.

IN ERROR.

1. The act of 23d April, 1829, entitled, "A further Supplement to an act entitled, " An Act to reform the penal laws of the Commonwealth," does not repeal the 11th section of the act of 25th March, 1824, entitled, “An Act to recharter certain banks," which makes the forgery of a check on a bank, felony.

2. A sentence under the act of 23d April 1829, to “separate or solitary confinement at labour," is good.

3. Where an indictment is good, and there is no error in the trial, but the sentence is defective, this Court will not send back the prisoner for a new trial, but will sentence him de novo.

In the Mayor's Court for the City of Philadelphia, Charles Drew, Elijah Drew, and Elisha Drew were indicted, for that they the said Charles Drew, Elijah Drew and Elisha Drew, "on the 9th day of September, in the year of our Lord, 1833, at the city aforesaid, and within the jurisdiction of the said Court, with force and arms, feloniously did falsely make, forge, and counterfeit a certain check on The Philadelphia Bank, purporting to be drawn by Joseph G. Parke & Co. for the sum of $5520 26, to be payable to bearer, and to be dated the day and year aforesaid: the said The Philadelphia Bank then and there, being a bank within the Commonwealth of Pennsylvania, incorporated in pursuance of an act of the general assembly, which said false, forged, and counterfeit check partly written and partly printed, is in the words and figures following," setting out a copy of the check and concluding "with intent then and there to defraud the said The Philadelphia Bank, contrary to the form of the act of the general assembly in such case made and provided, and against the peace," &c.

There was also a count for passing the said check, knowing it to be forged, with the like intent, and contrary to the form of the act of assembly, &c.

The defendants were indicted in like manner for forging a check on the Farmers and Mechanics' Bank, purporting to be drawn by Jos. G. Parke & Co. for the sum of $3500, with the like intent, &c. And, in a third indictment, for forging a check on the Commercial Bank of Pennsylvania, purporting to be drawn by James Musgrave, for $4800 63, with the like intent, &c.

Charles Drew and Elisha Drew were severally acquitted: Elijah Drew was convicted on all the indictments, and was sentenced on the first indictment "to pay a fine of $5 to the Commonwealth, to undergo an imprisonment by separate or solitary confinement at

(Drew v. The Commonwealth.)

labour, in the State Penitentiary for the Eastern District for the term of four years, and that he be fed, clothed, and otherwise treated as the law directs, pay the costs of prosecution," &c. On the second indictment he was sentenced to the like fine and to imprisonment in like manner for three years. On the third indictment he received the like sentence.

A writ of error having been allowed, the record was removed to this Court, and the following errors were assigned:

"1st, That the defendant has been indicted, tried, and convicted under the 11th section of the act of assembly, passed on the 25th day of March, 1824, entitled "An Act to recharter certain banks," (Pamphlet laws, page 73,) and has been sentenced under the seventh branch of the fourth section of the act of assembly of 23d April, 1829, entitled, “A further Supplement to an Act, entitled, "An Act to reform the penal laws of this Commonwealth," (Pamphlet laws, page 343.)

"2d, Because the 11th section of the act of 25th March, 1824, was repealed by the act of April 23d, 1829.

"3d, Because the defendant has been indicted, tried, and convicted of a felony, when the offence is by law only a misdemeanor.

"4th, Because by the common law, the crime of forgery, of which the defendant has been convicted, is only a misdemeanor, and unless made a felony by statute, the defendant cannot be indicted and convicted of a felony, and there is no act of assembly in force which makes this offence a felony.

"5th, Because the Court below erred in their judgment, in sentencing the defendant below to pay a fine of five dollars, when the punishment by law is "solitary confinement at labour for a period not less than one year, nor more than seven years."

"6th, Because the Court below erred in their judgment, in sentencing the defendant to pay the costs of prosecution.

"7th, Because the Court below erred in their judgment, in sentencing the defendant "to separate or solitary confinement at labour" in the alternative, when by law they only had power to sentence him "to be imprisoned in solitary confinement at labour."

Mr. Phillips, for the plaintiff in error, contended,

1st, That the conviction was wrong. The act of 25th March, 1824 § 11, 12, makes it felony to forge a check on a bank. That act is to be considered as abrogated by the act of 23d April, 1829, the 10th section of which repeals all inconsistent laws. The act of 1829 does not call the offence a felony. It must, therefore, remain as it was at common law, merely a misdemeanor; The King v. Ward, (2 Ld. Raymond, 1461); Commonwealth v. Searle, (2 Binn. 380.) To show that an affirmative act repeals all preceding acts upon the same subject, were cited 6 Bac. Abr. 372; (Title Statutes, D.) 4 Inst. 43. Foster's Case, (11 Rep. 61.) Harbat v. Fox, (1 Shower, 520.)

(Drew v. The Commonwealth.)

1 Ld. Raymond, 161. 4 Burr. Rep. 2026. [KENNEDY, J. Does not the concluding section of the act of 1829 save all previous descriptions and definitions of offences ?]

2d, There was error in the sentence, first, in the fine of $5 which is not authorised by the act of 1829, and, secondly, in the alternative punishment "separate or solitary confinement at labour," &c. It is true that the act of 1829 directs that the punishment shall be "separate or solitary confinement; but it means that the Court shall direct one or the other, not leave it to the construction of the officers of the prison. There is an obvious distinction between separate and solitary confinement. [ROGERS, J. Suppose you were right in this idea, it would avail your client little, since we would have him brought up and sentence him aright.] That has not been the practice heretofore. This Court in several cases, in which they reversed the sentence, ordered the party back to be tried again. [ROGERS, J. We decided a short time ago, in a case from Luzerne county, that where the indictment was good, and the trial good, but the sentence defective, we would do, what the Court below would do, after a new conviction, sentence him de novo. The subject was fully considered and all the authorities cited.]

The Court declined hearing The Attorney-General (Todd) and Mr. J. M. Read, who were to argue in support of the judgment and sen

tence.

PER CURIAM.-By the eleventh section of the act of 1824, the forging of a bank check such as this, is declared to be a felony punishable with fine and imprisonment at solitary labour for not less than one year nor more than ten years. How far has this been altered by the act of 1829? By the fourth section of that act, it is declared that instead of the punishment theretofore prescribed, imprisonment at solitary labour for a period not less than one year, nor more than seven, shall be inflicted for the first offence, and the like imprisonment, not exceeding ten years, for the second. Did the question stand on this, it would be easy to show that the character and class of an offence is not altered by a modification of the punishment. But the sixth section declares, that "all definitions and descriptions of crimes; all fines, forfeitures, penalties, and incapacities;" the restitution of property or payment of the value; and every other matter not particularly mentioned; shall remain as theretofore. Certainly the definition and description of a crime have respect to its essence and class, when it induces, as felony does, a civil disability, by incapacitating a party convict to be a witness. It is clear, therefore, that it was not the intention of the legislature to reduce the type of the offence to a misdemeanor; and it is needless to say that the fine is not abolished. Judgment affirmed.

[PHILADELPHIA, FEBRUARY, 6, 1836.]

COXE and Others, against TILGHMAN and Another.

1. In an action of covenant, amendments of the declaration assigning new breaches of the same instrument on which the original counts were founded, and alleging performance on the part of the plaintiff, in another mode than was alleged in the original counts, are admissible.

2. In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration was founded, an amendment making an alteration of the grounds of recovery on that instrument or contract, or of the modes in which the defendant has violated it, is admissible. Per SERGEANT, J.

3. Inactions ex delicto, the rule is the same: The foundation of the complaint laid in the declaration must be adhered to; although the mode of stating that complaint, may be varied by an amendment. Per SERGEANT, J.

THIS was an action of covenant brought in this Court by Charles S. Coxe, Francis S. Coxe, and Henry S. Coxe, executors of the last will, &c., of Tench Coxe deceased, against Benjamin Tilghman and Elizabeth Tilghman, executors of the last will, &c., of Edward Tilghman deceased, upon an agreement under seal dated the 25th day of July, 1806, between Tench Coxe and Edward Tilghman, by which the latter covenanted to purchase certain lands of the former.

The declaration contained four counts.

1. The first count sent forth that it was covenanted and agreed between the said Tench Coxe and Edward Tilghman, that in consideration of the covenants of the said E. T., the said T. C. would convey or cause to be conveyed to the said E. T., or to such person as he should appoint, the said T. C.'s right to certain lands in the State of Pennsylvania, amounting to 16,800 acres; a certain portion of which was within the boundaries or lines, and a certain other portion without the boundaries or lines of a certain selection of 45,000 acres of land, made by the said Edward Tilghman, Wm. Cramond, Adam Kuhn, and Joseph Thomas, out of a larger tract claimed by James Wilson deceased: that the said E. T. covenanted and agreed that he would designate before the first day of May, 1807, what quantity of the said 16,000 acres was not within the said boundaries and lines, and what was within them, and would also before that day pay to the said T. C. 25 cents for every acre of 2-3rds of such quantity of the said 16,800 acres, as he should show not to be within the said boundaries and lines, and also pay the said T. C., 25 cents for every acre for 2-3rds of 12-45ths, and for every acre of 14-45ths, of such quantity of the same as he should show to be within the said boundaries and lines: Averment that though the said T. C. was always ready and willing to convey, &c., yet the said E. T. did not well and truly designate