Anonymous, 1 Dall. 20, 1 U.S. 20 (Pa. 1773) and Hurst v. Dippo, 1 Dall. 20 (Pa. 1774)

John Fisher, having two sons and a Daughter, made his will, and devised a plantation to his son Matthias in fee. Matthias dies in his minority, intestate, and without issue.

Question: whether his heirs at common law shall take; or it shall divide among his other brothers and sisters, under the supplemental intestate law of this Province?

On a trial in ejectment for the plantation, it was agreed by council, that the opinion of the Court should be conclusive to the Jury.

Mr. Justice Willing and Justice Lawrence were of opinion, and so delivered it to the Jury, that the estate should be divided: and the plaintiff suffered a nonsuit. *

Trespass—The Plaintiff's Council opened that William Penn, by deed of lease and release, granted to his ancestor A. Sonmans five thousand acres of land in Pennsylvania; that such deeds were lost, or otherwise mislaid; and to prove the existence of such deeds, he shewed a list of names, commonly called the list of first purchasers, and containing a warrant, signed and sealed by William Penn, to

his Surveyor-General to survey the several quantities of land there mentioned; which the plaintiff contended was good evidence to prove his title—Defendant demurred to Plaintiff's evidence.

A question then arose, whether it should be stated that the plaintiff's ancestor. A Sonmons was seized in fee by virtue of a grant from William Penn; or whether the list of purchasers should be set forth verbatim?

After long debate, the Chief Justice gave the opinion of the Court as follows:

Chew Chief Justices:—Though demurrers are disused, yet the law is not uncertain. It is a settled rule, that courts of law determine Law; a Jury Facts. Upon which maxim, every security depends in an English Country.

When a deed is produced in evidence, it must be shewn in haec verba on the demurrer. There is a difference between Baker's case as reported in Croke and Coke: but it is law, that when facts are attempted to be proved by witnesses, the fact must be admitted; but previous to the admission of a fact, circumstances or evidence, must be shewn, tending to prove such fact. There may be a demurrer to evidence, either parol or written; and there may be written evidence to prove a fact.

The difficulty in this case is, whether this list of purchasers, is sufficiently descriptive of the nature of the estate, in the deed referred to. We must for the security of the Province, take notice of the circumstances of this province. It is well known what kind of a transaction this was. William Penn, soon after his grant from the Crown, sold land in small parcels. It appears he made deeds for sundry small parels of land, and received the money. These grants were in the Province at large: the party must do something more to appropriate the land. By this list, he expressly says, it is an account of the lands granted to purchasers; is it not then a proof, that William Penn made a grant, among others, to A. Sonmons, for five thousand acros of land in Pennsylvania?

It sufficiently appears a deed did exist; but it may be asked, what was the nature of that deed—what kind of an estate passed by it? Whether it is proper to go out of the evidence, may be questionable. The word Purchase, however, implies a purchaser in fee; and there is no instance where any other estate was granted. Besides the custom of the Province in the like cases, shews what was the nature of the purchase.

The Court do not take upon themselves to say, what the deed was: and, under all the circumstances of the case, we think it not proper to insert this list in the demurrer. If the defendant's council will not agree to state and estate in fee in the plaintiff's ancestor, it must go to the jury to draw their inference of the nature of the estate, from the evidence laid before them.