Page:United States Reports, Volume 1.djvu/463

452 

1789.

2d. With refpect to the ʃecond point, the Act of Affembly, as to the appointment of auditors, is merely directory ; and continuances are matters of mere form, which may be entered at any time; fo are matters of mere form, which may be entered at any time; fo that the Court will even prefume it to have been done. 2Har.C.P. 312. 1Stra. 139. 2Barn.Not. 172. 1Stra. 136. 1 Sid. 53. 60.–– See 18 ''Vin.tit. Purchaʃor. Preced. in Chan.'' 478. Schloʃʃer vs. Leʃher ant. 411.

Lewis, in reply, ftill urged, that the Act for docketing Judgments, and recording Deeds, were only made in favor of purchafors ; and although, generally fpeaking, every man who does not take by defcent, is called in law, a purchafor, he contended, that the object of thofe acts was not of that great import, but merely to fecure perfons who had paid an actual and immediate confideration for the premifes, and not to aid thofe who, by procefs of law, were endeavouring to recover an antecedent debt, which was the cafe in a domeftic attachment. The attachment when levied is binding between the parties; but it does not affect the legal relation of a Judgment obtained by another perfon ; and the cafe cited from Co. B.L. is that of an execution taken out, but not levied. See ''Prec. in Chan.'' 478.

With refpect to the omiffion of continuances, he anfwered, that if there was any thing to enter them from, and day has been given to the Defendant from time to time, then the doctrine and authorities of the adverfe Counfel would apply. But, he infifted, that where day was given to the Defendant, and, afterwards, nothing was done in the caufe, the continuances could not be arbitrarily entered in the manner fuggefted by the Defendant's Counfel.

After confideration, delivered the opinion of the Court, in which he declared, that he and his brethren were unanimoufly of opinion with the Plaintiff, on the cafe ftated ; and directed Judgment to be entered accordingly.

Judgment for the Plaintiff. 

RROR from the Common Pleas of Philadelphia County. On the trial of the caufe below, (See ant. 226) a bill of exceptions was taken to the opinions of the Court in the following words:

“ Trefpafs ʃur le Caʃe, in the Common Pleas, Philadelphia County:

“ And now the 6th day of February 1788, upon the trial of this

“ caufe, the Council for the Defendant, under the Pleas of Non Aʃʃumpʃit,

“ payment, and defalcation, and, in order to maintain the

“ fame iffue, offered to give in evidence a certain bond, or obligation,

“ of the faid Ludwig Kuhn (prout obligation)  affigned (prout affignment)

“ entered into by the faid Plaintiff, before his difcharge

“ under the Infolvent Act, and prayed, that the monies thereon “ due