1814. BAILEY et al. v. FAIRPLAY. the jury were suffered to fall into an error, by which the defendants were injured. The jury are to receive instructions from the Court. If this instruction is given in such a manner as to mislead them, there is an error which ought to be corrected. The record contains the evidence and the charge to which the defendant's counsel excepted, and prayed that the charge might be reduced to writing, and filed according to the act in such case provided.As the whale charge is on the record, we must now take it, that the whole is open to exception, although if the judge had thought proper, he might have called on the counsel to point out the part to which he objected, and reduced that part only to writing. On the whole it appears to me that there is érror. I am therefore of opinion that the judgment should be reversed, and a venire de novo be awarded... YEATES J. and BRACKENRIDGE J. were of the same opinion. Judgment reversed. Lancaster, Saturday, The Board of property has the The Commonwealth ex rel. BRODHEAD against A1 i 1. T May Term 1810 a rule was obtained upon the defendants to shew cause why a mandamus should not power, in regard issue, commanding them to grant patents to the relator, for to donation lands, several tracts of donation land claimed by him, in right of same judicial as in other cases; and after they have deliberated and decided against issuing patents, a manda mus does not lie several soldiers of the continental army in the war of the revolution. To this the defendants made return at May sessions 1811, to compel them. that the relator had presented a petition to them for the same object, and that they had decided to reject it; the return setting out the cause of their decision? 6 vải to Hopkins now moved for a peremptory mandamus, and upon the merits contended that the decision was wrong, and that the Board in regard to donation lands exercised a ministerial not a judicial power, : TILGHMAN C. J. It was determined by this Court in the case of The Commonwealth ex relat. Griffith v. The officer's of the Land Office, that when the board of property acted in a judicial capacity, they might be commanded to proceed to a decision, but their decision could not be controlled. In this case they have decided on the petition of Mr. Brodhead, so that it is only necessary to enquire whether they acted in a judicial capacity. That they did act judicially there can be no doubt. By the act of 2d April 1802, 3 Sm. Laws 506, they are invested with the same power with regard to donation lands, that they possessed in other cases; and they are expressly authorized to make the necessary inquiry, and decide on the validity and propriety of the claims of each and every applicant. In each case several facts must necessarily be enquired of. Whether the soldier was in the Pennsylvania line of the army? Whether he died in service, or served till the end of the war? Whether an applicant in right of a soldier has obtained a fair and legal transfer of the right? Whether such transfer was made prior to the laying out and survey of the lands, for if it was, vit is void by the act of 12th March 1783. These and often other matters must be ascertained, before a patent can be issued. Besides, difficulties frequently arise on the construction of the several acts of assembly, which have been made on this subject. So that in no case can the board proceed without inquiry and deliberation. Having deliberated and decided in the present instance, I am of opinion that nothing more can be required of them. A mandamus therefore ought not to be issued. YEATES J. Divers acts of assembly have passed at different times respecting the donation lands intended to be granted to the officers and soldiers of the line of this state. - The persons so entitled are described in the fourth section of the act of 24th March 1785, " to be officers and soldiers "of the Pennsylvania regiments, or of independent corps backnowledged by this state as of their quota in the fede123 VOL. VI. 1814. COMMON- 0. COCHRAN. 1814. COMMON WEALTH บ. COCHRAN. "ral army, who have served therein until the end of the "late war with Great Britain, together with the widows “and children, or either thereof, of such officers and pri"vates aforesaid, as were slain in battle, or died in the "service." The periods wherein such lands were to be applied for, were regulated by different laws, which have been extended from time to time under certain restrictions. Under the third section of the act of 2d April 1802, "the board of property "were authorized to exercise the same powers relative to "donation lands, as in other cases, and in all cases of diffi "culty or dispute between applicants under this law, and on "the validity and propriety of the claims of applicants, they "are authorized to make the necessary inquiries and decide." Daniel Brodhead has applied to this Court to enforce the delivery of patents to him in consequence of certain transfers to him of donation lands, by persons said to be soldiers in the Pennsylvania line; and a return has been made to the rule served upon the board of property, that they had rejected his petition made to them, and that a number of the persons under whom he claims, had actually drawn their lands. The power of this Court to issue writs of mandamus in proper cases cannot be questioned. The principle established by us on the mandamus applied for by Robert E. Griffith against John Cochran secretary of the Land Office in May Term 1812, must govern the decision in this instance. It belongs to the board of property to decide, whether the persons under whose conveyances Mr. Brodhead claims, are within the class of soldiers entitled to the bounty of the legislature; whether the true men have sold their shares by contracts not interdicted by the eighth section of the law of 12th March 1783, and whether application has been made in due time for the lands. "They were authori"zcd to make the necessary enquiry, and to decide on the (6 validity and propriety of the claim" under all its circumstances. They have proceeded in this deliberative duty, and have rejected the claim. It rests not with this Court upon the present motion to inquire into the grounds of their judicial act, nor to prescribe the rule which they ought to pur sue. Our power in such a case is confined to directing them to proceed to a decision, but not to influence them in their decision. Such was our opinion in the case of Mr. Griffith. I concur in opinion that the mandamus prayed for be denied. BRACKENRIDGE J. concurred. 1814. COMMON WEALTH v. COCHRAN. Sunbury, Saturday, June 18, A writ of error is not a supersedeas to proceedings in the Common Pleas, and tenant. IN CASES IN THE i i 霄 SUPREME COURT OF PENNSYLVANIA. ig Middle District. June Term, 1814. GRUBB against Fox, IN ERROR. 'N proceedings before a landlord and tenant's court, the plaintiff in error obtained possession of certain premises, of which the defendant was tenant. These proceedings were between landlord reversed in the Common Pleas of Northumberland on the 19th of January last, and on the same day this writ of error was sued out, security entered, and notice immedi-. ately given to the opposite party. On the same day also a writ of restitution and a fi. fa. for costs were issued, under which the costs were levied, and possession restored to the ruang ads and nor rol kno) tenant. Hall for the plaintiff in error, now moved for a writ of restitution to reinstate Mr. Grubb in the possession, upon the ground that the writ of error was a supersedeas to proceedings in the Common Pleas. Moorfoot v. Chivers (a), Curd v. Eastmeed (b). Greenough and Watts contra. Proceedings under the landlord and tenant law, are sui generis: their object is summarily to give the possession, without being obstructed by writs of error or certiorari, and of course to restore a possesgion in the same manner, where in any stage of the case it has been illegally ousted. It has been held that a certiorari, |