The said Thomas White, the grantee, on the 16th May 1772, conveyed the lands in question to Elizabeth, his eldest daughter by his first marriage, containing 1431 acres. She afterwards intermarried

with Moses Latta, one of the defendant, who, on the 13th September 1787, obtained a warrent for 142 acres, including an improvement, and completed his legal title by a patent dated 30th November 1787.

The said Thomas White, on the 24th October 1780, also conveyed the whole 624 acres to Agnes, his youngest daughter by his second marriage. In April 1784, she conveyed the whole tract to Christopher Hayes and John Henderson, in consideration of 2007. On the 26th May 1791, Christopher Hayes declares, that the lands were purchased with the proper moneys of Thomas Shields, the lessor of the plaintiff, and the use thereof resulting to him, he "grants, bargains, sells and releases" all his legal interest therein to him, in consideration of 5s. The legal interests of Henderson in the other moiety was vested in Shields, by a deed from James Guthrie, sheriff, dated 3d August 1791.

The deposition of Agnes Ryan (late White,) was offered in evidence by the plaintiff, and excepted to, because her conveyance containing words of implied warranty, she could be no witness without a previous release. And the same was accordingly overruled by the court.

The court inclined likewise to the same opinion, on an objection taken to the deposition of Christoper Hayes on the same ground. But the counsel urged that this was materially distinguished from the former case. Hayes declared in his deed that he was a mere trustee for the use of Shields, and had paid his money for the lands: and the latter by accepting of this conveyance estops himself from asserting that Hayes sold to him. Consequently he can set up no claim against Hayes, on the words of implied warranty contained therein, but is obliged to take the title as he finds it. He shall never be allowed to recur to his mere trustee for any supposed damages incurred in the purchase of a bad title, after having once adopted his act. The court hereupon readily retracted the opinion they at first entertained, and directed the deposition to be read.

Messrs. Ross and Young, pro quer.
Mr. Woods, pro def.

Verdict pro def.

CHRISTOPHER HAYES against THOMAS SHIELDS.

A suitor is privileged from being arrested or served with a summons, while attending. his cause eundo and redeundo: and the court will not nicely scan his time of return.

A DAY had intervened after the delivery of the verdict in the cause preceding, when the lessor of the plaintiff was served with a summons, in a plea of trespass on the case, issued out of the Court of Common Pleas of Westmoreland county.

Mr. Ross moved, that the defendant should be discharged from the action, on the ground of privilege, which he claimed as one of the suitors of this court. He had been engaged since the trial, in settling the costs of the former suit.

Mr. Young for the plaintiff, attempted to distinguish the service of a summons from an arrest by capias. In the latter, the defendant would be restrained of his liberty, and be compelled to find bail. sides the defendant had lingered unreasonably in his journey.

Be

Per cur. It has frequently been resolved, that courts in cases of this nature, will not nicely scan the time of the return of parties, witnesses, &c. 2 Stra. 986, 987, 990, 1094. 1 Barnes. 278. 2 Bl. Sep. 1113. Gilb. Cas. C. R. 308. It is fair to presume, that the adjustment of the expenses of the action just tried, would detain him at least one day. His exemption from process is the privilege of the court. 2 Bl. Rep. 1193. Annal. 41. Dall. 357. The distinction between writs of summons and capais, is not solid, as it respects the present question, and was overruled in the case of the member of convention impleaded in Philadelphia. (Bolton v. Martin.) Dall. 296. The party's attention to his own business in the suit depending, is distracted by other objects, and he is subjected to the inconvenience of attending an action at a considerable distance from his own place of abode, contrary to the wise indulgence of the law. Vide Hutt. 59. 2 Stra. 1094.

The defendant must therefore be discharged from this action.

Lessee of JOHN IRWIN against ANDREW MOORE.

A precise warrant or application will take place of an indescriptive one, though earlier But the latter, though shifted from the spot seemingly called for, if fairly surveyed and appropriated when there was no intervening opposing right, will hold the lands. Convenient certainty to a common intent is sufficient in warrants or applications. A military permission, not followed up by settlement, gives no preference to lands.

EJECTMENT for 318 acres of land on the waters of Brush creek The lessor for the plaintiff grounded his pretensions on a military permission of Captain Charles Edmondson, commanding officer at Fort Pitt, to him dated 18th September 1767, "to improve and occupy a plantation or tract of land for himself, and one for his relation or friend, on the south side of the great road near the mouth of Bushy Run, in Beyerley's neighborhood, he paying forty shillings yearly if demanded, and subjected to the regulations of the commanding officer at Fort Pitt, for his majesty's service." In pursuance hereof, Irwin in 1798, built a small cabin, cleared one acre of ground and made a small deadening on lands about one-half mile distant from those in question, and onequater mile from his present place of abode, and had a tenant in the cabin for some little time. On the 25th July 1769, he filed two applications in the land office, one marked No. 3663, for 300 acres on the waters of Brush Creek, on the south-west side of the new road adjoining land of Thomas Lyons, and from thence extending down the run to Brush Creek, in his own name, and the other No. 3665, in the name of James Irwin, for 300 acres on the waters of Brush Creek, bounded by the lands of John Irwin and Christopher Rudebach. Under this latter application, he claimed the premises in dispute, and gave some slight evidence of a survey made thereon, which was strongly controverted.

for The defendant claimed under an application of Casper Geyer, 300 acres on the head of Sewickley, about four miles from Beyerley's, entered on 3d April 1769, No. 105, and a survey thereon of 301 acres, made 10th April 1770, and a patent dated 14th Agust 1770, in consideration of 15l. 1s. 3d. sterling. He also gave in evidence a recovery in ejectment by the lessee of Casper Geyer against the said John Irwin, of the premises at November assize 1788, by counsel's confessing judgment to the plaintiff.

It was asserted by each party, that the application of his adversary did not describe the lands in dispute, but was intended for another tract. And evidence was given on both sides as to this point. The defendant insisted, that the military permission not being followed by a settlement, gave no preference.

The court submitted the respective locations to the jury, who were to determine as a question of fact, which was most applicable to the ccntroverted grounds. They laid it down in their charge, that a precise, close, descriptive warrant or application, would take place of a general, loose, indescriptive one, though earlier in number or date. But a warrant or application of the latter kind, even though shifted at a distance from the spot seemingly called for therein, if fairly surveyed, returned, and appropriated by the proper authority, when there was no intervening opposing right, will hold and secure the lands, because no injury is thereby done. In general, convenient certainty to a common intent is amply sufficient in cases of this nature; and in a country newly explored, it would be highly unreasonable to expect, that applicants for lands should furnish minute descriptions. Those persons who are entitled to a preference in lands under a military permission, must be such as have made actual settlements thereon. This is the express language of the exception in the law of 3d February 1768, governor Penn's proclamation of the 24th of the same month, and of what is called the preamble to the opening of the land office on the 3d April 1769. In what other manner could these claimants conduce to "the more convenient accommodation of the soldiery or others?" And if in the present instance, a claim of pre-emption is set up, under captain Edmondson's license, must not the conditions thereof, of "improving and occupying" the same lands, be fully complied with?

Verdict for the defendant.

Messrs. Ross and Brackenridge, pro quer.
Messrs. Woods and M'Kichen, pro def.

Smith, J. was of counsel for the plaintiff in Geyer's lessee v. Irwin and therefore refused giving any opinion..

Lessee of DAVID SHERER against THOMAS M'FARLAND.

Improvements on lands not purchased from the Indians, or made after the treaty at Fort Stanwix, and before the opening of the land office on 3d April 1769, not allowed in evidence.

Evidence of money given to a surveyor to enter a caveat against a survey, and he neglecting to do it, not admitted to operate against a third person.

EJECTMENT for 318 acres of land in Unity township.

The plaintiff showed in evidence, a warrant to the lessor for 200 acres of land, including an improvement, on the waters of

Sewickly, adjoining lands of Arthur O'Hara, William Anderson, and the widow Eager, dated 24th June 1785. Also a deed poll of the improvement, from John Loydick to William Mount, in consideration of 2007. dated 11th January 1775, and another deed from the said Mount to Sherer thereof, in consideration of 2207., dated 21st January 1778.

The plaintiff then offered witnesses to prove that one Abraham Leasure made a considerable improvement of these lands in 1768 and 1769 before the opening of the land office, and that John Loydick derived title under him.

This evidence was objected to by the defendant's counsel, who cited Plumsted's lessee v. Rudebagh in this court, where such evidence was disallowed.

The plaintiffs counsel expressed a wish to be fully heard on this point. The royal charter was granted to William Penn for the purpose of colonization. The first adventurers agreed to make their settlements within three years. People were invited by the first proprietary from all parts of Europe to come and settle within his province; and the uninterrupted practice of the land office before the revolution has ascertained to every improver his right of pre-emption. In confidence of this established system, persons from all quarters came amongst us, and were adopted freeholders of the soil. The decisions of courts and juries confirmed the general opinion; and thus by common consent the improvement doctrine became the law of the land. If the tribunals of justice erred herein, it may be truly said, that communis error facit jus. To abridge the benefits which people expected to deprive from making original settlements, would produce palpable injustice.

The court saved the defendants' counsel the trouble of a reply. The observation made, if correct throughout, go in favour of improvements generally. We are no enemies to bona fide improvements, restricted within rational limits. But these were never deemed to extend beyond the lands purchased from the Indians. Such a system would be wild, as well as highly impolitic, and would tend to deluge the country in blood, by provoking the savage nations to hostilities.

Under the law of 3d February 1768, all persons were interdicted from settling on the indian lands, under the highest forfeiture, know in society. And by a subsequent act of (1 Dall. Laws 503) 18th February 1769, persons making such setttlements, or making VOL. II.

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