1821. Sunbury.

COLLINS

V.

cery decrees directly-the specific execution of contracts, the performance of trusts. But no Court of chancery could restrain the legal owner of lands from recovering the possesand others sion from one who had acted against his will, until he had paid the trespasser for such improvements as it pleased him to make against the will of the owner, when he had kept him in law and exposed him to expense in the recovery of his just rights.

RUSH.

There is no such defence at law, and it is opposed to every principle of morality, justice, and equity.

Judgment reversed, and a venire facias de novo awarded.

June.

A letter, dated 24th

June, 1773,

from a confi

FOSTER and another against SHAW and another.

IN ERROR.

ERROR to the Court of Common Pleas of Union county,

in an ejectment brought by John Foster and William Foster, dential clerk against Samuel Shaw and Thomas Matthews, in which there was a verdict and judgment for the defendants in the Court below.

in the land office to the plaintiff's an

cestor shewing title in the latter accompanied with

The suit was brought for a moiety of 214 acres and 35 the original perches in Hartley township. The warrant under which

application

and memorandum filed in the office and afterwards ratified by the covenants of the parties, is evidence in favour of the plaintiff.

Where the plaintiff's father owning a moiety of a tract of land devised the tract to the plaintiff and directed that the other moiety the property of A, should be purchased at the expense of his other son J., in a suit for the moiety against persons claiming under A., a forged deed from A, to J., of all A's right to the tract, no participation being shewn by the plaintiff's is the fraud, is not evidence for the defendant.

The Board of Property has no authority to vacate a patent, and their minutes of ex parte proceedings for such purpose are not evidence of any thing.

The record of the Supreme Court of a suit between other parties, is evidence on behalf of the defendant as introductory to evidence to prove that a witness who was examined on the trial of that suit, and whose credit is impeached, gave the saine evidence he had given in this suit.

But the notes of the Judge who tried the cause are not evidence to shew what a witness swore for. any purpose whatever.

A deed proved by one of the subscribing witnesses to have been executed in Ireland and certified by the sovereign of Belfast under the seal of the corporation, is not evidence without proof that the seal is the seal of the corporation.

1821.

υ.

SHAW and another

both parties claimed, issued from the land office on the 27th June, 1773, in favour of Robert Chancellor, and a survey was Sunbury. made thereon on the 15th February, 1793. The plaintiffs FOSTER claimed the moiety under the will of their father John Foster, and another who as they alleged took up the lands, and agreed with Chancellor that he should take out the warrant in his name, and that Foster should have one-half for locating the lands, as was a very common course at that period. The defendants claimed the whole under a conveyance of the 15th April, 1796, from Robert Morrison devisee of Robert Chancellor to Thomas Matthews.

The plaintiffs gave in evidence articles of agreement, dated the 7th August, 1773, between Robert Chancellor and John Foster, by which it was covenanted that Foster should have one-half the tract for locating it, and Chancellor the other half for taking out the warrant and surveying it, and then gave in evidence the will of John Foster, dated the 10th February, 1786, by which he devised this tract to the plaintiff, and directed, "that part of said tract, that is the property of Robert Chancellor, I allow to be purchased at the expense of my son James," and devised other lands, to James.

The plaintiffs then offered in evidence a letter of the 24th June, 1773, from David Kennedy who was then a confidential clerk in the office of the secretary of the land office, to John Foster in which he states, "that it did not suit him to. advance the money on his location, adjoining Glover's, but had given it to the bearer Robert Chancellor, who had taken out a warrant for it, and given an agreement to convey to Foster one-half;" having first given in evidence the original application, taken from the file in the secretary's office, and proved to be in the hand writing of John Foster, except that John Foster's name was scored, and Robert Chancellor's substituted by an interlineation, which was in the hand writing of David Kennedy. At the foot of this application there was a note, in the hand writing of David Kennedy, signed D. K., in these words; "John Foster sent down to take out a warrant for the half; but it did not suit me to advance the money; I gave it to the above young man." This letter was objected

1821.

Sunbury.

FOSTER

and another

V.

SHAW.

to by the defendants, and rejected by the Court, and an exception taken by the plaintiffs..

The defendants offered to give in evidence, an exemplification of a deed poll, dated the 18th December, 1792, from and another. Robert Chancellor to James Foster, purporting to be a conveyance to James Foster in fee of the whole right, title, and interest of Chancellor in the warrant. This was not offered as a genuine deed, but admitted to be fabricated. The plaintiffs excepted to this evidence, but the Court admitted it, and the plaintiffs took another exception.

The defendants also offered in evidence the proceedings, and order of the Board of Property, on the petition of Thomas Matthews. To this evidence the plaintiffs objected, but the Court admitted it, and sealed another bill of exceptions.

The defendants also offered in evidence the record of the Supreme Court, of a trial and verdict, in a suit brought by Morrison's Lessee, against James Foster and another, in 1795, as introductory to other evidence, which he meant to produce, to prove that a witness who was examined on his behalf on this trial, gave the same evidence on that occasion, which he gave on this; the plaintiffs having examined witnesses to impeach his credit, by proof of inconsistent statements made by him. This evidence was also objected to by the plaintiffs, and admitted by the Court, who sealed a bill of exceptions.

The defendants thereupon offered in evidence, the notes taken by Judge YEATES, who sat on the trial, of the testimony given by the witness before mentioned, after proving by one of the jury, that the witness was sworn on the former trial. This evidence was objected to by the plaintiffs, but the Court admitted it, and sealed another bill of exceptions.

The defendants also offered in evidence, a deed dated the 1st April, 1796, from Robert Morrison to Thomas Matthews, proved by one of the subscribing witnesses to have been executed in Ireland, and certified by the sovereign of Belfast under the seal of the corporation. The deed was ob

jected to by the plaintiffs, but the Court admitted it, and another exception was taken.

The opinion of the Court was delivered by

1821.

Sunbury.

FOSTER and another

v.

SHAW.

DUNCAN J.-The warrant which gave rise to the controvery, issued from the land office, on 27th June, 1773, in the and another.

name of Robert-Chancellor.

The plaintiffs claim an undivided half part of the land surveyed on it, under the will of their father, John Foster, who they allege took up the land, and agreed with Chancellor that he should take out the warrant in his name, and that Foster should have one-half for locating the lands very common custom at that day.

; a

The defendants claim the whole under a conveyance of 15th April, 1796, from Robert Morrison devisee of Robert Chancellor to Thomas Matthews.

The plaintiffs gave in evidence articles of agreement of 7th August, 1773, between Robert Chancellor and John Foster, by which it was covenanted that Foster should have one-half the tract for locating it, and Chancellor the other half for taking out the warrant and surveying it. And they gave in evidence the will of John Foster, dated 10th February, 1786, by which he devised this tract to the plaintiffs, and directs "that part of said tract that is the property of Robert Chancellor, I allow to be purchased at the expense of my son James," to whom he devised other lands.

They then offered in evidence, a letter of 24th June, 1773, from David Kennedy, a confidential clerk of the secretary of the land office, to John Foster, in which he states "that it did not suit him to advance the money on his location adjoining Glover's, but had given it to the bearer, Robert Chancellor, who had taken out a warrant for it, and given an agreement to convey to Foster one-half." Having first given in evidence the original application taken from the files in the secretary's office and proved it to be in the hand writing of John Foster, except the interlineation, John Foster's name scored, and Robert Chancellor's substituted, which was the hand writing of David Kennedy.

At the foot of the application is a note in the hand writing of David Kennedy, and signed D. K., in these words; "John Foster sent down to take out a warrant for the half, but it

1821.

Sunbury.

FOSTER

and another

V.

did not suit me to advance the money, I gave it to the above young man."

The letter was rejected and exception taken.

In questions respecting the beneficial interest in warrants. where the names of others are so generally used, the strict and another. rules of evidence have been relaxed. The hand writing of the

SHAW

original application, indorsements on it, surveying fees paid, accounts in the office of deputy surveyor charging the fees for surveying, and other acts of ownership, have been received in evidence to indicate the real application.

The rule of the land office which then obtained, that a person could not be permitted to take out a warrant or location for more than 300 acres, was probably first introduced to prevent the engrossing of large bodies of land, and perhaps was continued afterwards for the emolument of the officers. But it is well known that in general the name of the warrantee was merely nominal, and used as a kind of scaffolding to build up a regular and formal title. This rule rendered from necessity these circumstances admissible as evidence of ownership,

This letter alone, standing by itself, would be very questionable evidence, but accompanied as it is, with the original application and memorandum filed in the office, it affords satisfactory evidence that Kennedy acted as the agent of both parties when he substituted the name of Chancellor for Foster, and made the agreement with Chancellor; and the subsequent ratification of this agreement by the correspondent covenants of the parties; all these taken together form irrefragable evidence of the interest which Foster and Chancellor held in the warrant, and the lands to be surveyed on it, and ought all to have been received in evidence.

The defendants were permitted to give in evidence, the exemplification of a deed poll purporting to be a conveyance from Robert Chancellor to James Foster, and his heirs and assigns, of his whole right, title, and interest in the warrant. It was not offered as a genuine deed, but as a fabricated instrument. Plaintiffs disclaimed it, and excepted to its admission.

This paper could not be evidence in any way, unless to affect the plaintiffs with fraud, and an abandonment of all claim under their father. But if it could be evidence for this