Page:United States Reports, Volume 1.djvu/147

136 

1785.

3 Burr. 1514, that the Court would enquire what would be the tetimony of the abent witnes, in order that it might appear whether he was really material.

But this refued, and ordered the caue to be continued.

Bradford then moved, that the action againt Keely hould be tried; initing that the affidavit of any peron, but the defendant himelf was inufficient to delay a trial; and he cited Barn. 437. Carter vs Uppington and Gray vs Holton.

But it appearing to, that both actions were brought on one note of hand, in which Maon was the drawer, and Keely the indorer, and, conequently, that Maon was liable over to Keely, he was conidered as eventually intereted in both actions; and therefore both the trials were potponed on his affidavit alone. 

HIS was an appeal from the Orphan's Court of Philadelphia; and after argument the delivered the unanimous opinion of the Court to the following effect:

, Chief Jutice. The intetate had left even children, all under the age of fourteen years; their mother married the Baron appellant. Upon petition to the Orphan's Court by the children, for the appointment of guardians, Enoch Edwards, and another, were appointed. This appeal is founded upon an idea, that the guardian in Soccage, or by nurture, mut be appointed, and that the Orphan's Court have not a dicretion.

In England, the next of kin, to whom inheritance cannot decent, mut be appointed guardian, the mother therefore would have been entitled to the appointment there; but in Pennylvania, it depends on the 7 and 12 §. of the act of 12 Anne c. 3. And we all agree that by the true contruction of thee ections, the Orphan's Court have a power to aign the guardianhip of minors under fourteen, to whom the pleae, according to their legal dicretion; which legal dicretion by §. 12 is confined to the choice of perons of the fame religious peruaion, of good repute, and approved by the Orphan. If any of thee objections hould occur, the Court mut appoint from other perons; which could not be the cafe, if they were confined to the guardian in occage, or by nurture.

The opinion of the Court is conformably to the invariable practice in every County of the tate, from the date of the act to this day: and the contruction given to an act immediately after it has paed, cannot be altered at o different a period, even although it might have been a little erroneous in the firt intance. The order of the Orphan's Court confirmed.