1785.
3 Burr. 1514, that the Court would enquire what would be the teſtimony of the abſent witneſs, in order that it might appear whether he was really material.
But this the Court refuſed, and ordered the cauſe to be continued.
Bradford then moved, that the action againſt Keely ſhould be tried; inſiſting that the affidavit of any perſon, but the defendant himſelf was inſufficient to delay a trial; and he cited Barn. 437. Carter vs Uppington and Gray vs Holton.
But it appearing to the Court, that both actions were brought on one note of hand, in which Maſon was the drawer, and Keely the indorſer, and, conſequently, that Maſon was liable over to Keely, he was conſidered as eventually intereſted in both actions; and therefore both the trials were poſtponed on his affidavit alone.
Graham's Appeal.
THIS was an appeal from the Orphan's Court of Philadelphia; and after argument the Chief Justice delivered the unanimous opinion of the Court to the following effect:
McKEAN, Chief Juſtice. The inteſtate had left ſeven 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, muſt be appointed, and that the Orphan's Court have not a diſcretion.
In England, the next of kin, to whom inheritance cannot deſcent, muſt be appointed guardian, the mother therefore would have been entitled to the appointment there; but in Pennſylvania, it depends on the 7 and 12 §. of the act of 12 Anne c. 3. And we all agree that by the true conſtruction of theſe ſections, the Orphan's Court have a power to aſſign the guardianſhip of minors under fourteen, to whom the pleaſe, according to their legal diſcretion; which legal diſcretion by §. 12 is confined to the choice of perſons of the fame religious perſuaſion, of good repute, and approved by the Orphan. If any of theſe objections ſhould occur, the Court muſt appoint from other perſons; which could not be the cafe, if they were confined to the guardian in ſoccage, or by nurture.
The opinion of the Court is conformably to the invariable practice in every County of the ſtate, from the date of the act to this day: and the conſtruction given to an act immediately after it has paſſed, cannot be altered at ſo different a period, even although it might have been a little erroneous in the firſt inſtance.
