his Surveyor-General to furvey the feveral 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 arofe, whether it fhould be ftated that the plaintiff's anceftor. A Sonmons was feized in fee by virtue of a grant from William Penn ; or whether the lift of purchafers fhould be fet forth verbatim?
After long debate, THE COURT JUSTICE gave the opinion of the Court as follows:
chew Chief Juƒtices: Though demurrers are difufed, yet the law is not uncertain. It is a fettled rule, that courts of law determine Law ; a Jury Facts. Upon which maxim, every fecurity depends in an English Country.
When a deed is produced in evidence, it muft be fhewn in hœc Verba on the demurrer. There is a difference between Baker's cafe as reported in Croke and Cake: but it is law, that when facts are attempted to be proved by witneffes, the fact muft be admitted ; but previous to the admiffion of a fact, circumftances or evidence, muft be fhewn,, tending to prove fuch 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 cafe is, whether this lift of purchafers, is fufficiently defcriptive of the nature of the eftate, in the deed refered to.We muft ofr the fecurity of the Province, take notice of the circumftances of this Province. It is well known what kind of a tranfaction this was. William Penn, foon after his grant from the Crown, fold land, and received the money. Thefe grants were in the Province at large: the party muft do fomething more to appropriate the land. By this lift, he exprefsly fays, it is an account of the lands granted to purchafers ; is it not then a proof, that William Penn made a grant, among others, to A. Sonmons, for five thoufand acros of land in Pennʃylvania?
It fufficiently appears a deed did exift ; but it may be afked, what was the nature of that deed–what kind of an eftate paffed by it? The word Purchaƒe, however, implies a purchafer in fee ; and there is no inftance where any other eftate was granted. Befides the cuftom of the Province in the like cafes, fhews what was the nature of the purchafe.
The Court do not take upon themfelves to fay, what the deed was: and, under all the circumftances of the cafe, we think it not proper to infert this lift in the demurrer. If the defendant's council will not agree to ftate and eftate in fee in the plaintiff's anceftor, it muft go to the jury to draw their inference of the nature of the eftate. from the evidence laid before them.