Respublica v. Shryber, 1 Dall. 68 (Pa. 1782) and Shrider's Lessee v. Nargan, 1 Dall. 68 (Pa. 1782)

Forcible Entry.—In this case it was resolved, on solemn argument, that title could not be given in evidence by the defendant to prevent restitution. 8. H. 6 ch. 9. I Burns Just. 411. sec. 3.

And M'Kean C.J. ruled that the wife of the prosecutor might be examined as a witness to prove the force, but only the force; for, otherwise, the statutes might be eluded in some cases.

The same Cause.

Lewis moved in arrest of judgment, on two grounds: 1st. For that the indictment stated, "that the prosecutor was seized in his demese as of fee," without saying when he was seized; so that it might be he was seized at the time of the indictment found, and not at the time of the forcible entry.—2d. For that the indictment statement "that he was seized in his demense as of fee" and "his peaceable possession thereof as aforesaid continued until &c." which is repugnant and inconsistent, in as much as he could not be both seized and possessed at the same time.

But the court over-ruled both objections: And M'Kean C.J. said, that the words, "his peaceable possession thereof as aforefaid," were surplusage and ought to be rejected.*

In this cause, M'Kean C. J. said, that he had ruled it in a case at Lancaster, that the lessor of the plaintiff shall not be obliged to shew his title further back, than from the person who last died seized, first shewing the estate to be out of the Proprietaries, or the commonwealth.

It was objected by Lewis and I, that a sheriff's deed of sale of lands, under a writ of venditioni exponas, not being recorded in the Rolls Office, according to the Act of Assembly of 1774, could not be read in evidence.—Sed non allocatur: Because it was acknowledged

in court, and the registring of it in the Prothonotary's office (as is always done) is a sufficient recording within the act.

Sergeant and Ingersol opposed the reading a deed in evidence, upon this ground: that by the* act of assembly last mentioned, all deeds not recorded in the Rolls Office, according to the particular directions of that act, are declared void as against subsequent purchasers, and therefore, though this deed was dated before the sheriff's deed, under which the defendant claimed, yet as it was not recorded till afterwards, they insisted it was void, and could be no evidence at all.—Sed non allocatur: And M'Kean C. J. said, we cannot hinder the reading of a deed under seal, but what use will be made of it is another thing: and he cited the case of Ford v. Lord Grey 6. Mod. 44.†