1774.
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. Sonmans 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 Juſtice:—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 hœc 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 refered 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, 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. Sonmans, for five thouſand acres 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? The word Purchaſe, however, implies a purchaſe 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 an 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.
