1817.

The Com

ex rel.

v.

was intended to prevent any state from giving freedom by its laws to slaves who had run away from another state. monwealth But it is not to be construed so as to exempt slaves from the JOHNSON, penal laws of any state in which they may happen to be. a Negro, This would be to turn them loose on society like wild beasts; HOLLOWAY. and was not at all the object of the constitution. Indeed, the counsel for Mr. Frazier does not contend that the slave is not subject to punishment for felony. But on what law does he found a distinction between felonies and crimes less than felony? These runaway slaves are often guilty of riots, violent assaults and batteries, and other offences, which, though not felonious, are dangerous to the peace of the commonwealth. It is necessary that they should be restrained by the fear of punishment; and since neither the Constitution of the United States, nor any law of this state, exempts them from punishment in any criminal case, we are bound to consider them as subject to prosecution in all criminal cases. It is my opinion, therefore, that the prisoner should be remanded to answer the charge of fornication and bastardy.

YEATES J. delivered an opinion concurring with the above.

GIBSON J. agreed that the slave should be subject to prosecution for the crime of fornication and bastardy; and that this Court cannot withdraw him from the prosecution by delivering him to his master.

Prisoner remanded.

M'CALL against CROUSILLAT.

ACCOUNT RENDER.

THIS case was argued by B. Tilghman and Binney for the plaintiff, and Phillips and Ingersoll for the defendant.

1817.

Philadelphia.

Saturday, January 4.

Where proceedings have been confirm. ed in this Court on er

record ordered to be sent

an back, it is to

of

be considered as out of this

ther actually

not.

the issue on

claration does

Court below

low.

TILGHMAN C. J. This is an action of debt, for the sum ror, and the of 4516 dollars and 24 cents. The declaration contains two counts, 1st, on a judgment for M'Call v. Crousillat, in action of account render, in the Court of Common Pleas Philadelphia county, in which Crousillat was plaintiff and Court, wheM'Call defendant; 2d, on the report of auditors in an action sent back or of account render, in the same Court, in which Crousillat "Even if still was plaintiff and M'Call defendant, whereby it was found, in this Court, that McCall was in surplusage, in the sum of 4516 dollars nul tiel record and 24 cents: which report was confirmed by the Court of would be with the plaintiff, Common Pleas. Crousillat the defendant, in this Court, where the depleaded nul tiel record, to these two counts; and on that plea, not state it to the issue was joined. The record of the Court of Common be in the Pleas has been produced to us, and we are now to decide, but only that whether it is such a record as is described in the declaration. judgment was given in The defendant says that it is not, for several reasons, and the Court be1st, because the record is not now remaining in the Court of Query, If Common Pleas, but in this Court, to which it was removed judgment can by writ of error. This objection deserves no favour, because the defendant on a report of it is quite foreign to the merits of the case. It is true that auditors in acthe record was removed to this Court by writ of error, but count render, finding that it is also true, that the proceedings in the Court of Common the defendant was in surplu Pleas having been affirmed, it was ordered by this Court, sage? that the record should be sent back to the Court of Common, But the law is well settled, Pleas, according to the act of assembly in such cases pro- that the devided. Now, after this order, I consider the record as maintain an being out of this Court, whether it has been actually sent action of debt back or not. But even if it were still in this Court, the plaintiff for issue would be with the plaintiff, because the declaration does not aver, that the record was remaining in the Court of surplusage. Common Pleas, but only that judgment was given by the Court of Common Pleas, and the report made by the auditors and confirmed by the Court of Common Pleas, so that

be entered for

fendant may

against the

the amount so found in

1817.

M'CALL

V.

CROUSILLAT.

there is no weight whatever in this objection. The plaintiff says on the second, plea, that there was no judgment in the Court of Common Pleas, and so far as respects the first count, I think this is true. No judgment appears to have been given by the Court of Common Pleas. They only confirmed the report of the auditors, but gave no judgment that M'Call should recover any sum of money of Crousillat. In this respect, the proceedings appear to have been regular. I have not been able to find in the books of entries, any record of an action of account render, in which it was found, that the defendant was in surplusage, nor have I seen any authority for entering judgment, that the defendant should in such case recover against the plaintiff. But the law seems to be well settled, that the defendant may support an action of debt against the plaintiff, for the amount of the sum in which he was found in surplusage by the auditors. For this I refer to 1 Vin. Ab. tit. Account, p. 181, 182. (B. a.) pl 5 & 6. and the cases there cited. But, although there is no such record as is stated in the first count, yet there is such a record as is stated in the second count. So that, upon the whole, the plaintiff is entitled to judgment.

YEATES J. and GIBSON J. expressed their concurrence.

Judgment for the plaintiff.

1817.

The Commonwealth against EBERLE and others.

Philadelphia.

Saturday,
January 4.

Words used

by one man

another, un

FREDERICK EBERLE, and fifty-eight others, members of "the German Evangelical Lutheran Congregation are not evi"in and near the city of Philadelphia," were indicted for dence against a conspiracy to prevent by force of arms, the use of the Eng-less they are lish language in the worship of God, by the said congrega- engaged in a proved to be tion. The indictment was found at the Mayor's Court of common enterprise: but the city of Philadelphia, at March Term, 1816, and removed in such case they are evito this Court, by certiorari, and tried before YEATES J. at dence, though Nisi Prius.

not conclusive.

A motion for a new trial

of the Court.

granted.

been examin

Common

been heard to

say, as to the

tentions of the

where he is

The indictment contained two counts. The first count is an appeal to charged, that the defendants, on the 26th September, 1815, the discretion were members of the "German Evangelical Lutheran Con- Unless injustice be done, a "gregation in and near Philadelphia," and so being mem- new trial bers of the said congregation, they unlawfully and wickedly should not be combining, conspiring, and confederating together, to acquire What a witfor themselves unjust and illegal authority and power in the ness who has said congregation, and to distress, oppress, and aggrieve the ed for the peaceful citizens of this Commonwealth, also members of wealth, has said congregation, and to prevent them from the free, proper, and lawful enjoyment of the rights and privileges there- views and inof, afterwards, viz. on the day and year aforesaid, at the prosecutors, is city of Philadelphia, aforesaid, unlawfully assembled and not evidence, met together, and being so assembled and met together, did not shewn to then, and there, unjustly, unlawfully, and oppressively, con- with the prospire, combine, confederate, and agree together, to prevent secutors, and by force and arms, the use of the English language in the not offered to worship of Almighty God, among the said congregation, and discredit him. for that purpose, did then, and there, wickedly, unlawfully, ther it is eviand oppressively, confederate and agree among themselves, and did then and there determine, and firmly bind themselves before God, and solemnly to each other, to defend, ness: as he might himself with their bodies and lives, the German divine worship, and be examined to oppose by every means, lawful, or unlawful, the intro- as to such duction of any other language into the churches; and the tentions, said F. Eberle, and others, and each of them, in pursuance of the said unlawful and oppressive conspiracy, combination, VOL. III.-B

be connected

the evidence is

Query, whe

dence on any

that of discrediting the wit

views and in

1817.

V.

EBERLE

confederacy, and agreement, so formed and made, as aforeThe Com- said, afterwards, to wit, on the 6th January, 1816, at the monwealth city of Philadelphia aforesaid, at an election then and there held, by the members of the said congregation, for certain and others. officers of the same, viz. for elders and wardens, did unlawfully, and oppressively, and with force and violence, riotously, and routously, make and raise, and cause to be made and raised, a great noise, tumult, riot, and disturbance; and then, and there, in further pursuance of the said unlawful and oppressive conspiracy, combination, confederacy, and agreement so formed and made, as aforesaid, did assault, beat, and wound, certain members of the said congregation, viz. Jacob Lex, William Wagner, George Witman, and G. G. Cope, for the better carrying the said unlawful and oppressive conspiracy, combination, confederacy, and agreement, into effect and execution, to the great damage, oppression, and grievance, of the members of the German Evangelical Lutheran Congregation in and near Philadelphia aforesaid, to the evil and pernicious example of all others, in the like case offending, and against the peace and dignity of the Common monwealth of Pennsylvania. The second count was for conspiracy only, without laying any overt act. The jury found the defendants guilty on both counts.

A motion was made for a new trial, in support of which several reasons were assigned.

1st, The first reason was, that the Judge before whom the cause was tried, did not explicitly instruct the jury whether a certain bye-law of the 21st December, 1805, vesting the president of the corporation with power to appoint inspectors of the election of vestrymen, &c. was, or was not, a valid bye-law, although he was requested so to do.

2d, That the Judge's opinion, so far as it was expressed, was erroneous in point of law.

3d, That the Judge refused to permit the defendant's counsel to put a certain question to Henry Heyl, one of the witnesses examined on the trial.

4th, That the Judge refused, declined, or omitted, to express his opinion explicitly upon the legal import and quality of a paper called "The German Petition;" and that so far as his opinion was expressed, it was erroneous.