Imatges de pàgina
PDF
EPUB

CASES IN THE SUPREME COURT, &c.

to the justices is no supersedeas; Anon. 4 Dall. 214; though in a common case the law is otherwise, 2 Com. Dig. 23. E. Certiorari. The law must be the safne with a writ of error.

Duncan in reply. On general principles this writ of error was a supersedeas, and there is nothing peculiar in this kind of case. When the proceedings come to the Common Pleas, they assume a new appearance, and become a common law proceeding. This is a judgment of a court of common law, removed here by writ of error. A certiorari is a different thing. It removes proceedings, not according to the course of the common law.

TILGHMAN C. J. delivered the judgment of the Court, Yeates J. declining to give any opinion on account of his connection with the plaintiff in error.

The usual effect of a certiorari, is to stay the proceedings of the inferior jurisdiction; such likewise is the usual effect of a writ of error. But it has been settled, that in cases between landlord and tenant the certiorari shall not stay proceedings, the act of assembly intending to give landlords a speedy remedy. In order to preserve uniformity of principle, and to do equal justice to landlord and tenant, the writ of error should have no greater force than the cer-" tiorari. It might be presumed in the first instance, that the landlord was entitled to the possession, because the jury found so. But how that the first proceedings are reversed by the Court of Common Pleas, the presumption is in favour of the tenant. Had not the Court considered this as a case sui generis, the tenant would never have lost the possession, because the certiorari would have protected him. By allowing the writ of error no greater force than the certiorari, we place both parties on an equal footing, and of course do equal justice to both. I am therefore of opinion that the motion of the plaintiff in error should not be granted. Motion denied.

[ocr errors]

1814.

GRUBB

V.

Fox.

461

[ocr errors][ocr errors]

1814.:

Sunbury,
Saturday,

ENSLIN against BowMAN et al. Executors of

STEWART.

June 18.

The commis

sioners under the

compensating act

THIS

IN ERROR.

HIS was an action of ejectment in the Common Pleas of Luzerne county, by the executors of Stewart against

of 4th April 1799, Enslin, in which the jury found the following special verdict.

and its supple

ments of 15th

March 1800, and

6th April 1802,

of the application

claimant for land

teen townships,

unless he or those

under whom he

claimed, had been actually settled and resident on the land before the decree at Trenton.

of the commis

claimant, stating

that he or those under whom he

"The jury find and return the following special verdict: had no jurisdiction That on the 16th January 1800, Samuel Jameson, of the of a Connecticut township of Newport, applied under the act of the 4th April within the seven- 1799, entitled "an act for offering compensation to the Penn"sylvania claimants of certain lands within the seventeen nor any authority to issue a certifi-"townships in the county of Luzerne, and for other purposes cate in his favour, therein mentioned," for 700 acres of land, to wit, 400 acres thereof in the township of Hanover, and 300 acres the residue in the township of Newport, in the county of Luzerne; and that on the 5th day of December 1800, Jeremiah Hagerman of Poughkeepsie in the state of New York, heir at The certificate law of John Hagerman deceased, applied under said act for sioners in favour 750 acres of land in the township of Newport aforesaid. of a Connecticut That on the 10th day of September 1802, lots No. 46 & 48, were resurveyed by order of the commissioners appointed elaims, were actu- to put in execution the aforesaid act of assembly, by Thomas ally so settled and Sambourne surveyor to said commissioners, and a draught thereof made and returned to said commissioners, bearing date December 1st 1802. That on the 16th January 1804, A Pennsylvania the following certificate was granted by Thomas Cooper and John M. Taylor two of the commissioners under said act, to James Stewart the above named testator, to wit, "We arose subsequent "the undersigned commissioners, duly appointed for putting 1787, is entitled" in execution an act of the general assembly of the Com"monwealth of Pennsylvania, entitled "An act for offering "compensation to the Pennsylvania claimants of certain lands. "within the seventeen townships in the county of Luzerne, and for other purposes therein mentioned," passed the 4th ton, or one claim-"day of April 1799, and the supplement to the act passed "the 15th day of March 1800, and the further supplement "thereto passed the 6th day of April 1802, do certify, that James Stewart is the owner as a Connecticut claimant

resident, does

not conclude a Pennyslvania claimant.

settler, whose title to land

within the seven

teen townships,

to the 28th March

to hold against

any Connecticut

elaimant, except one actually settled and resident

there before the

deeree at Tren

ing under such a settler.

66

[ocr errors]

"of one hundred and sixty acres of land in the township of "Newport, one of the beforementioned seventeen townships, "being Nos. 46 and 48, in the second division of the said "township, which numbers 46 and 48, were severally occu"pied by a Connecticut claimant and actual settler there, be"fore the time of the decree of Trenton, and were particularly "assigned to such actual settler, prior to the said decree, "agreeably to the regulations then in force among the set"tlers. The said land (a draught of survey whereof is here"unto annexed) is included in the application of Samuel "Jameson and Jeremiah Hagerman, under the provision of "the act aforesaid, of which applications an official transcript "has been transmitted to us, from the land office of this "Commonwealth of Pennsylvania, No. 52, 663, of the said "tracts; fifty acres part thereof is of the third class, the resi"due thereof of the fourth class. January 16th 1804. Sign"ed Thomas Cooper, and John M. Taylor."

"

"We further' find that the aforesaid survey was returned into the office the 11th July 1808, and that in pursuance of said survey and certificate, and the last will and testament of the said James Stewart deceased, a patent issued from the Commonwealth of Pennsylvania for the said lots, Nos. 46 and 48 of the second division of Newport township, on the 13th July 1808, to Ebenezer Bowman and Joseph Jameson executors of the said James Stewart, deceased, in trust for the uses mentioned in the said last will of the said James Stewart. And we further find that the said John Hagerman made application for the said lot No. 48, to the commissioners appointed under the law of 1787, commonly called the confirming law; and that in the said year 1787, the town lot of the town of Newport was surveyed to the said John Hagerman by William Montgomery, and out lines of the said town, and cross lines of the said township, were run in the summer of the same year, and no person was settled then on the said lot, run for the said John Hagerman, and but few in the township."

"And we do further find, that a warrant issued from the Commonwealth of Pennsylvania to Sarah Hollenback, on the 10th day of May 1792, for four hundred acres of land, to include a small bog meadow on one of the head branches of Forge Creek, that empties into the east side of the Sus

1814.

ENSLIN

v.

BOWMAN

et al.

1814.

ENSLIN

V.

et al.

quehanna near the Nanticoke falls on the said river. That in pursuance of said warrant, on the 9th day of December 1793, four hundred forty one acres and one quarter and allowance BOWMAN &c., were surveyed on the head of the Forge branch of Nanticoke, and returned on said warrant into the land office of Pennsylvania. That the purchase money was paid on the 5th June 1792. That in 1792, the warrantee aforesaid begun an improvement, raised ore, and exercised other acts of ownership on said premises, and in the year 1794, built a dwelling house on the land, and in the spring of 1795, placed a tenant in the house so built the preceding season, who continued to reside therein and thereon, clearing and cultivating and improving said land, until the spring of 1798, when George Enslin, the above named defendant, came into the possession of the said house and land by virtue of a deed poll from the said Sarah Hollenback the aforesaid warrantee, to him the said George Enslin, dated February 24th, 1798."

"And we do further find, that a patent issued in pursuance of the said warrant, survey and deed poll, to the said George Enslin, on the 11th day of June 1798, and that the said George Enslin has continued to reside on the premises in dispute, from the spring of 1798, to the time of finding this verdict. That he the said George had planted an orchard, built a new house and barn, and cleared thirty or forty acres before the present ejectment was brought."

"And we do further find, that the first actual settlement made on the lots and land for which the ejectment was brought, was made under the warrant aforesaid to the said Sarah Hollenback, and that no person or persons ever improved settled or lived on either of the said lots No. 46 and 48, except the above named defendant, and those under whom he makes title."

"And we further find, that John Hagerman, Jeremiah Hagerman, Samuel Jameson and James Stewart aforesaid, or either of them, never improved, nor lived, or settled on either of the said lots No. 46 and 48, nor lived in Newport township aforesaid; and we further find that the land in dispute for which this ejectment is brought is comprised in the plaintiffs' survey certificate and patent aforesaid, and also in the aforesaid warrant, survey and patent to the defendant as aforesaid. And we further find that the commissioners un

[ocr errors]
[ocr errors]

1814.

ENSLIN

v.

et al.

der the confirming law of 1787, opened their office some time in the summer of the same year, and were driven off and left the county about the 1st October in said year." "Upon the above finding, if the Court shall be of opinion BOWMAN the plaintiffs by law are entitled to recover, then we find for the plaintiffs, six cents damages and six cents costs; but if the Court shall be of opinion that upon the whole finding, the plaintiffs by law ought not to recover, then we find in favour of the defendant."

Upon this verdict judgment was rendered for the plaintiffs below, and the defendant took a writ of error...

The case was elaborately argued in this Court, by Duncan for the plaintiff in error, and by Watts for the defendants in error.

1

I

TILGHMAN C. J. It appears by the special verdict in this case, that George Enslin, the defendant below, claimed under a warrant to Sarah Hollenback, dated 10th May 1792, for 400 acres of land, a survey in pursuance of the said warrant on the 9th December 1793, regularly returned to the land office, and a patent on the 11th June 1798, the purchase money having been paid on the 5th June 1792. It appears also that the first and the only actual settlement made on the land in dispute, was by the defendant, or those under whom he claims. He had been long in possession previous to the bringing of this ejectment, had cleared thirty or forty acres, planted an orchard, and built a dwelling-house and barn. The plaintiffs derived their title from a patent dated 30th July 1808, founded on a certificate from Thomas Cooper and John M. Taylor, commissioners for carrying into execution the provisions of the "act for offering compensation to the Penn""sylvania claimants of certain lands within the seventeen แ townships in the county of Luzerne, and for other purposes therein mentioned," passed the 4th April 1799, and the supplementary acts passed the 15th March 1800, and the 6th April 1802. This certificate bears date the 16th January 1804, and sets forth that the land was occupied by a Connecticut claimant, and actual settler there, before the time of the decree of Trenton. This assertion seems at first to be in direct opposition to the finding of the jury; but is rendered consistent with it by the explanation afforded by the plainVoь. VI.

[ocr errors]

3 N

« AnteriorContinua »