Youngs. There are other points; but I suppose it is good ground for a writ of error. It creates delay; and although amendments may be matter of discretion with the court, yet the court is bound to exercise its discretion soundly and legally; it is a discretion which this court will control. 2. The exception in the statute of limitations in favor of merchants' accounts, applies 17] only to accounts *current, where there have been mutual dealings, and where some of the items are more and some less than five years' standing. In such cases the last item shall draw all the rest out of the statute. But if all dealings between the parties have ceased for more than five years next before the commencement of the suit, the whole account is barred. An account which has ceased to run is count stated; and it is expressly decided that an account stated is not excepted from the general operation of the statute. Besides, the exception of the statute is only in favor of ac tions of account, and not actions of assumpsit 2 Ves. 400, Welford v. Liddel; 4 Mod. 105, Chievly v. Bond; 2 Saund. 124, Weber v. Tivill.i The replication is repugnant to the declaration; for money due for the hire of a negro cannot be "money due on an account current of trade and merchandise." an account closed. An account closed is an ac The declaration ought to have stated the money to be due upon such an account. 3. The court below ought to have permitted the defendant to withdraw his demurrer and his rejoinder, and rejoin generally to the repli cation. E. J. Lee, contra, having cited 3 Wooddeson, 83, 85, as to the principal question, was stopped by the court as to the error alleged in the permission given by the court below to the plaintiff to amend before trial, and the refusal to allow the defendants after judgment upon the demurrer to withdraw it and take issue of the fact. Marshall, Ch. J., observed that the permitting amendments is a matter of discretion. He did not mean to say that a court may in all 18*] cases permit or *refuse amendments without control. A case may occur where it would be error in a court, after having allowed one party to amend, to refuse to suffer the other party to amend also before trial. But that is not this case. After the parties have gone to trial upon a set of pleadings, and the judgment has been pronounced, it may be doubted whether the court can permit the demurrer to be withdrawn. It would not be right in all cases, after the party had taken 1. But see Sergeant William's note to that case In his edition of Saunder's Reports. The statute of Virginia, so far as it relates to the questions in this case, is precisely like the British statute in 21 Jac. c. 16, s. 3. issue upon the law, and it has been decided against him, to suffer him also to take issue upon the fact. If it be permitted, it is a matter of great indulgence. There is no ground for the objection taken to the declaration in this case, that it ought to have averred that the money was due on an account concerning the trade of merchandise. A declaration need not set forth the circumstances which take the case out of the statute of limitations. Youngs cited 6 T. R. 691, Holt v. Scholefield, if there be one bad count in the declaration, to show that when general damages are given, the court will arrest the judgment. fails in Virginia, under whose laws this Marshall, Ch. J. But by the statute of jeofor the plaintiff, upon a general verdict, if there case was tried, the judgment shall be rendered be one good count in the declaration. On a subsequent day. Marshall, Ch. J., delivered the opinion of the court, actions of assumpsit, as well as to actions of That the exception in the statute applied to account. That it extended to all accounts current which concern the trade of merchandise between merchant and merchant. That an account closed by the cessation of dealings between the parties is not an account stat- [*19 ed, and that it is not necessary that any of the items should come within the five years. That the declaration; and that the rejoinder was bad. the replication was good, and not repugnant to Judgment affirmed with costs. Upon the issues of non assumpsit and plen administravit, the jury found a general verdict, which was recorded in this form: "We of the jury find the issues for the plaintiff, and assess the damages to two hundred and twenty dollars and ninety-five cents." Upon which verdict the judgment of the court was "that the plaintiff recover against the defendant her damages aforesaid in form aforesaid assessed, and also her costs by her about her suit in this behalf expended, to be levied of the goods and chattels of the said Bryan Fairfax, deceased, at the time of this death, in the hands of the said defendant to be administered, if so much, etc., but if he hath not so much, then the costs aforesaid to be levied of the proper goods and chattels of the said defendant; and the said defendant in mercy," etc. The error relied upon by the plaintiff in error was, that the jury had not found the amount of assets in his hands to be adminis. tered. Swann, for the plaintiff in error, having cited Esp. N. P. 263, and the case of Booth's Executors v. Armstrong, 2 Wash. 301, was estopped by the court, who requested to hear Mr. E. J. Lee on the other side. 20*] *E. J. Lee, contra. There was no necessity for the jury to find specially the amount of the assets, for if ever so small a sum had been found, the judgment would have been the same as if assets had been found to the whole amount of the plaintiff's claim. The sum found by the jury would not alter the judgment. It would still have been for the whole debt de bonis testatoris si, etc., and si non, then the costs de bonis propriis. But here the jury have in substance found that the defendant had assets more than sufficient to satisfy the debt due to the plaintiff; for that is the allegation of the plaintiff in her replication, and the jury have found the issue for the plaintiff upon that replication. It is not more necessary to find specially upon this issue than upon non assumpsit or nil debet. There is a difference between this case and that of Booth's Executors v. Armstrong, 2 Wash. 301, for there the finding was not, as here, generally, "we find the issues for the plaintiff;" but "we find for the plaintiff the debt in the declaration mentioned, and one penny damages." The finding there was special, and could not be construed to be a finding of the matter of the plaintiff's replication as the finding in the present case may and ought to be. The cases cited to show that the amount of assets found could not alter the judgment were, 8 Co. 34, Mary Shipley's case; Cro. Eliz. 592, Waterhouse v. Woodstreet; Styles, 38, Gawdy v. Ingham; Freem. 351, Oxendan v. Hobdy; Bro. Execution, pl. 34, pl. 82; Godbolt, 178, Newman v. Babington; Cro. Car. 373; Dorchester v. Webb, Lex. Test. 414. February 21. Marshall, Ch. J., delivered the opinion of the court to the following ef fect: 21*] The verdict ought to have found the amount of the assets in the hands of the defendant to be administered. The cases cited to show that the judgment must be for the whole sum, if the verdict find any assets, have been overruled. It is declared by Lord Mansfield, in a case cited in Gwillim's edition of Bac. Abr. and the law is now well understood to be, that the executor is only liable for the amount of assets found by the jury. In Virginia the law has been so settled. The case cited from 2 Wash. Rep. is precisely in point. The counsel for the defendant in error attempted to show a distinction arising from the difference of form in which the verdicts were rendered. But the two verdicts appear to the court to be precisely alike in substance. The defendant in error relies on the form of the issue. She contends that as the replication alleges that the defendant has assets more than sufficient to satisfy the debt, the finding of that issue for the plaintiff below, is in effect finding that the defendant has assets more than suffieient to satisfy the debt; and if so, it is wholly Under the act of Pennsylvania of 1715, which requires a deed to be acknowledged before a justice of the peace of the county where the lands lie, it year 1775 to acknowledge deeds before a justice of had been the long-established practice before the the Supreme Court of the province of Pennsyl vania. And although the act of 1715 does not authorize such a practice, yet as it has prevailed it is to be considered as a correct exposition of the statute. Under the same statute, if a deed conveyed lands in several counties, and was recorded in one of those counties, an exemplification of it was good evidence as to the lands in the other countries." ERROR to the Circuit Court for the District of Pennsylvania, in an action of ejectment. The only question was, whether the exemplification of a deed from Allen to Delancy, could be lawfully read in evidence at the trial. This question arose upon the following case: William Allen, on the 27th of December, 1771, being seized in fee of the land in controversy, lying in Northampton county, by deed of bargain and sale of that date, conveyed the same to James Delancy and Margaret, his wife, in fee. The deed also conveyed real estate in the counties of Philadelphia and Bucks, and was acknowledged by the bargainor in the city of Philadelphia on the 7th of December, 1772, before John Lawrence, one of the justices of the Supreme Court of the Province of Pennsylvania, and recorded on the 11th of May, 1773, in the office of the recorder of deeds for the city and county of Philadelphia; but not recorded in the county of Northampton, nor in the county of Bucks, nor in any other county of Pennsylvania; offices for recording deeds being estab lished in the said counties of Northampton and Bucks, according to law, from the date of the said deed to the present time. The Circuit Court admitted the exemplification to be read in evidence, and the verdict and judgment were for the plaintiff below. *Rodney, Attorney-General for the [*23 plaintiff in error. But the laws originally agreed upon and adopted by William Penn and his followers, before they left England in May, 1682, section 20, 1.-Vide, 3 T. R. 688, 689, Harrison v. Beecles. E. J. Lee had previously moved this court te quash the writ of error, because the citation was not served on Ann Fairfax, the defendant in error but on her husband Charles I. Catlett, with whom she had Intermarried since the judgment below. But the court overruled the motion, saying, That the act of Congress (vol. 1, p. 62, § 22). does not designate the person upon whom the cita tion shall be served, but only directs that the adverse party shall have at least thirty days notice. The citation served on the husband is well. service is sufficient. The Appendix to laws of Pennsylvania, p. 4, it was declared, that "to prevent frauds and vexations within the said province," "all conveyances of land made in such province" "shall be enrolled and registered in the public enrollment office of the said province, within the space of two months next after the making thereof, else to be void in law." Deeds made out of the province were to be enrolled in like manner within six months. This shows that it was the prevailing sentiment among them that means should be taken to prevent clandestine conveyances; and from thence it may be inferred that such was the intention and end of all their laws requiring the enrollment of deeds. By the act of 1683, c. 79, Appendix, p. 9, it is enacted, "that all deeds of sale, mortgages, settlements, conveyances (except leases for a year), shall be declared and acknowledged in open court." In 1688, a temporary law, to continue one year only, confirmed deeds theretofore made and not properly recorded, and allowed twelve months for recording deeds made out of the province, and six months for those made in the province; otherwise they were to be void. The same act permits the recording of bills, bonds and specialties, for safe keeping, but expressly declares that such recording is not necessary as to those writings. In 1693 it was enacted that deeds were good and valid, although never recorded; and it was declared that no deeds or other writings shall be required to be recorded; but that such deeds and writings as shall be enrolled or registered in the Roll's Office, and the exemplification of 24*] the records of the same, *in all courts of judicature, shall be allowed and judged as valid as the original. Then came the act of 1715, c. 9, laws of Pennsylvania, p. 78, the first section of which enacts, "that there shall be an office of record in each county of this province, which shall be called and styled the office for recording of deeds," and that the recorder "shall record, in a fair and legible hand, all deeds and conveyances that shall be brought to him for that purpose, according to the true intent and meaning of this act." The 2d and 3d sections provide that all conveyances of land in the province "may be recorded in the said office," but before the same could be recorded they were to be acknowledged or proved "before one of the justices of the peace of the proper county or city where the lands lie." The 4th section enacts, "that all deeds and conveyances made and granted out of this province, and brought hither and recorded in the county where the lands lie (the execution thereof being first proved by the oath or affirmation of one or more of the witnesses thereunto, before one or more of the justices of the peace of this province," or before any mayor, etc., of the place where executed, certified, etc.) "shall be as valid as if the same had been made, acknowledged or proved in the proper county where the lands lie in this province." The 5th section enacts, "that all deeds made, or to be made, and proved or acknowledged and recorded as aforesaid, which shall appear so to be, by indorsement made thereon, according to the true intent and meaning of this act, shall be of the same force and effect here, for the giving possession and seizin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment with livery and seizin, or deeds enrolled in any of the King's courts of record at Westminster, are or shall be in the kingdom of Great Britain: and the copies or exemplifications of all deeds so enrolled, being examined by the recorder, and certified under the seal of the proper office, which the *recorder or keep- [*25 er thereof is hereby required to affix thereto, shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves, or as bargains and sales enrolled in the said courts at Westminster, and copies thereof, can be, and the same may be showed, pleaded and made use of accordingly. The 6th section declares the force and effect of the words, "grant, bargain and sell.” The 7th section declares the punishment for forging certificates of acknowledging and recording. The 8th section enacts, "that no deed or mortgage, or defeasible deed in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life, or years, unless such deed be acknowledged or proved, and recorded within six months after the date thereof, where such lands lie as hereinbefore directed for other deeds." The 9th and 10th sections prescribe the mode of acknowledging satisfaction of mortgages. The 11th section appoints recorders for the respective counties of Philadelphia, Bucks and Chester, which were then the only counties in the province. By this act no power was given to a judge of the Supreme Court. Indeed, no such court then existed. The Supreme Court was established by the act of May 22, 1722, section 11, but no such power is given thereby to the justices of that court. The act of 1775 expressly gives the power to the justices of that court, from whence a strong inference is drawn that they had not the power before. The expressions of the second section of that act are, "that all such deeds and conveyances, which shall be made and executed out of this province, after the publication of [*26 this act, and acknowledged or proved in manner as directed by the laws heretofore for that purpose made, or proved by one or more of the subscribing witnesses before any supreme judge of this province, shall be recorded," etc. It is clear from this mode of expression, that a deed acknowledged or proved before a supreme judge was not acknowledged or proved in manner as directed by the laws theretofore for that purpose made. Such an acknowledgment, therefore, prior to the year 1775, was not legal, and did not, under any existing law, authorize the recording of the deed; and the exemplification of a deed from the records, not legally recorded, cannot be evidence. This deed was acknowledged before a supreme judge prior to the year 1775, and not before any justice of the peace of the province. Again, it is clear from the purview of the act of 1715, that the proper office for recording deeds of lands was the office in the county | practice from the year 1715 to the date of this where the lands lie. These lands lie in Northampton county, but the deed was recorded only in the office of the county of Philadelphia. This objection is as fatal as that respecting the acknowledgment. Lewis, contra. There was a Supreme Court in Pennsylvania long before the act of 1715. It is mentioned in the 9th section of the act of March 27, 1713, c. 3, where an appeal from the sentence of the Orphans' Court is given to the Supreme Court. 1. As to the place of record. Part of the lands conveyed by this deed lie in the county of Philadelphia, in which county the deed was recorded. It was therefore within the strict letter of the law recorded in the county where the lands lie. It was not neces27] sary by the act that the *deed should be recorded in every county in which any part of the land should lie. It was sufficient if recorded in the county where any part of the lands lie. But it was not necessary that it should be recorded in the county where the lands or any part of them lie. The object of the act was not noticed but safe keeping of the deeds. It does not require that any deed should be recorded. It was intended merely for the benefit of the grantee, and for that purpose it was immaterial in what public office the deed was recorded. Before the act of 1715, the Roll's Office in Philadelphia was the only place of record. That act simply provided that there should be such an office in every county, to which people might with convenience resort to put their deeds on record for safe keeping. By the first section of the law, the recorder in each county is bound to record all deeds which shall be brought to him for that purpose, whether the lands lie within or without the county. "The said office," in the second section, means either of said offices. No time is limited within which the deed must be recorded. The whole tenor of the act shows that the purpose of recording was merely for safe keeping. Thus stood the law till the act of 1775 declared, that unless deeds and mortgages should be acknowledged, or proved and recorded, with in a certain time, in the counties where the lands lie, such deeds or mortgages should be void as to creditors and subsequent purchasers. The provisions of this act show that no such provisions existed before. The evil complained of in the preamble of the act, was the frauds upon creditors and subsequent purchasers by 28*] means of secret deeds and mortgages. This evil could not have existed if the object of the act of 1715 was to give notice. The object of that act, therefore, was safe keeping. The recording or the omission to record the deed did not affect the title. It was therefore perfectly immaterial in which of the offices the deed should be recorded. It was perfectly optional with the grantee whether he would have his deed recorded at all; and if he did choose to have it recorded, it was equally optional with him in which of the offices it should be recorded. 2. As to the acknowledgment. deed, to acknowledge deeds before a judge of There was never a doubt suggested upon this subject until the present case. If the practice be now decided to be incorrect, it will cut deep into the titles of Pennsylvania. Livingston, J. I doubt whether this court can take notice of such a practice unless it be spread upon the record by a bill of exceptions, or found by a special verdict. If we can, and if the practice be so, I think it puts an end to the question. Lewis. The evidence of the practice was offered, not to the jury as a fact, but to the judge, to inform him what had been the construction uniformly put upon the law by [*29 courts, judges and legislators and by the whole people of the state. Marshall, Ch. J. I do not know how this court can take notice of it as a practice or custom, without the consent of the parties; but I consider it as an exposition or construction of the law. If decisions of the courts of Pennsylvania had been made upon the question, they might be produced. If no cases are reported, the court will take no information as to the construction given to the law by the courts of Pennsylvania. If such have been the uniform decisions of their courts at the time, as there are no reports of cases, if the counsel agree as to the construction given by the courts, this court can receive it as evidence of those decisions. But if gentlemen differ in their statements, the court would not be willing to decide as to the credit to be given to the one statement or to the other. could not admit any statement admitting that Ingersoll, for the plaintiff in error, said he it had been the practice to admit in evidence exemplifications of deeds not recorded in the county where the lands lie. Lewis named 27 cases in which he had been concerned as counsel, and in which such exemplifications had been used in evidence, and no objection ever taken. Marshall, Ch. J. That part of the argument may be omitted for the present, and if the court should not be able to decide the case without evidence of the practice, we will decide whether we will hear the statements on that subject. Lewis. Part of the lands lie in Philadelphia county, where the deed was recorded. An exemplification would be good evidence in a contest respecting those lands, and if good evidence It had been the cotemporaneous and uniform for one purpose, it will be good as to the other, 30*] If the law authorizes a deed to be re- | legislature of Pennsylvania, respecting the reg corded in a particular office, an exemplification istering of deeds. from that office is good evidence in all cases. It would have been good evidence in an action of covenant upon the deed, and there can be no difference in an action of ejectment. Gilb. Ev. 97, 99, 100; 2 Vin. Abr. 598; 12 Vin. 105, 107; 2 Eq. Cas. Abr. 413. Ingersoll, in reply. The common law did not require any deed to be recorded. Before the act of 1715, the English register acts, and the acts for enrollment of deeds, were well known in Pennsylvania; and they were for the purpose of notice. The evil to be remedied was the frequency of clandestine conveyances. The 1st section of the act does not require the recorder to record "all deeds and conveyances which shall be brought to him for that purpose," but "all deeds and conveyances which shall be brought to him for that purpose according to the true intent and meaning of this act;" that is, all deeds and conveyances of land lying in his county. The 2d and 3d sections require the acknowledgment of proof to be before one of the justices of the peace of the proper county or city where the lands lie. The power to certify acknowledgments was not given to a judge of the Supreme Court until 1775, when the express grant of the power was strong evidence that they did not already possess it. There is no more reason that a foreign deed should be proved and recorded in a county where the lands lie than that a domestic deed should be so proved and recorded. Yet the 4th section of the act is explicit with regard to foreign deeds, that they shall be so proved and recorded; and in order to show that they meant the same thing in the case of domestic deeds, the legislature say that a foreign deed, so proved and recorded, shall be as valid "as if the same had been made, acknowledged, or proved, in the proper county where the lands lie;" 31*] thereby intimating that the acknowledgment or proof in the county where the lands lie was the proper mode in all other cases. The 5th section immediately follows, and declares that all deeds "proved or acknowledged and recorded as aforesaid," shall transfer the possession, and that exemplifications thereof shall be evidence. Here the words "as aforesaid" refer to the description last antecedent, that is, in the county where the lands lie. Again in the 8th section it is declared that no mortgage shall be good unless acknowledged or proved and recorded where the lands lie "as hereinbefore directed for other deeds." This expression clearly shows that the legislature had before directed that other deeds should be recorded where the lands The law of Pennsylvania, on this subject, had varied at different times; but as it stood in 1715, when the act passed which must decide this controversy, the recording of a deed was not necessary to its validity; but deeds might be enrolled, and an exemplification was tes timony in all courts. The act of 1715 established an office of record in each county in which deeds were to [*32 be recorded, and declared an exemplification from the record to be as good evidence as the original. This act, however, does not make the recording of a deed essential to its validity. To entitle a deed to be recorded, the act requires that it shall be acknowledged or proved "before one of the justices of the peace of the proper county or city where the lands lie." In this case the lands lie in different counties; and the deed was acknowledged before John Lawrence, one of the justices of the Supreme Court of Pennsylvania; and was recorded in the office for the city and county of Philadelphia, in which a part of the lands lie. The land, however, for which this suit was brought, lies in a different county. The first question which presents itself in this cause is, was this deed properly proved? Were this act of 1715 now, for the first time, to be construed, the opinion of this court would certainly be that the deed was not regularly proved. A justice of the Supreme Court would not be deemed a justice of the county, and the decision would be that the deed was not properly proved, and therefore not legally recorded. But, in construing the statutes of a state on which land titles depend, infinite mischief would ensue, should this court observe a different rule from that which has been long established in the state; and in this case, the court cannot doubt that the courts of Pennsylvania consider a justice of the Supreme Court as within the description of the act. It is of some weight that this deed was ac knowledged by the chief justice, who certainly must have been acquainted with the construction given to the act, and that the acknowledgment was taken before another judge of the Supreme Court. It is also recollected that [*38 the gentleman of the bar, who supported the conveyance, spoke positively as to the universal understanding of the state, on this point, and that those who controverted the usage on other points, did not controvert it on this. But what is decisive with the court is, that the judge who presides in the Circuit Court for the District of Pennsylvania, reports to us that this construction was universally received. On this evidence the court yields the construction which would be put on the words of the act, to that which the courts of the state have put on it, and on which many titles may probably depend. The next question is, was this deed recorded in such an office as to make the exemplification evidence? Without reviewing all the arguments which have been urged from the bar, or all the sections of the act, it may be sufficient to observe, that this court is satisfied that, where a single tract of land is conveyed, the law requires the deed to be recorded in the office of the county |