sion of crime, which it is the object of criminal courts to effect." 4 Fost. & F. 388, 389, note. We are satisfied that the defendant was in no way prejudiced by the instructions of the court. 4. On the final argument to the jury, the counsel for the prosecution alluded to the case as the most remarkable one ever tried in the territory, and to "the many times it had been brought before the tribunals." To this latter remark exception was taken. Thereupon the remark was withdrawn by the counsel, and the court said to the jury that the case was to be tried on the ovidence, and that they were not to consider it with respect to any previous trial, but only on the evidence given on this trial. The counsel for the defendant now contends that this allusion was in contravention of that section of the act of the territory regulating proceedings in criminal cases, which declares that "the granting of a new trial places the parties in the same position as if no trial had been had," and that "all the testimony must be produced anew, and the former verdict cannot be used or referred to either in evidence or in argument." Laws Utah 1878, p. 126, § 317. The object of this law was to prevent the accused from being prejudiced by reference to any former conviction on the same indictment. There was, in fact, no reference to any verdict on a previous trial, but merely a mention of the times the case had been before the courts, so as to magnify its importance. If allusions to previous trials, such as were here made, were to vitiate a subsequent trial, a new element of uncertainty would be introduced into the administration of justice in criminal cases. We do not see that the defendant was in any way prejudiced by such reference. The fact that previous trials had proved unavailing may perhaps have induced greater care and caution on the part of the jury in the consideration of the case. The judgment of the court below is affirmed. (120 U. S. 464) HERRON and others v. DATER and another. 1. PUBLIC LANDS-TITLES DERIVED FROM COMMONWEALTH OF PENNSYLVANIA In case of lands in Pennsylvania, title to which is derived from the commonwealth, evidence of payment of the purchase price by a person, other than the one whose name appears in the application, warrant, and survey, establishes a prima facie legal title in such person; and a title resting upon such payment, made in 1793, and supported by possession taken by the claimant's successor in title in 1864, and payment of taxes meanwhile, is superior to a title derived through a patent issued in 1797 to a third person, which recites a conveyance by the warrantee to the patentee, but which is not connected with the warrant or survey by any independent evidence, and under which no entry was made until 1875. 2. SAME-PROOF OF PAYMENT ANCIENT RECORDS. In an action of ejectment, involving such a title, plaintiff introduced as evidence of payment by R., from whom he derived title, an original application in the name of W., the warrantee, for the purchase of several different tracts, including that in controversy; a purchase voucher relating to the same tracts in the same name, containing a marginal entry, "A gen'l rec't wrote;" and a receipt contained in an old purchase blotter, corresponding in number with the application and voucher, running to R. Held, that this, in connection with the fact that a warrant was actually issued, was sufficient evidence that the land had been paid for, and that the payment was made by R., and it did not matter that the date of the warrant was prior to the date of the receipt, as the custom was to date the warrant back. SAME EVIDENCE RELATING TO OTHER LANDS. In such case, the plaintiff having shown payment of taxes by R. by the return of the deputy surveyor, who made the original survey, held, that defendant could not introduce other parts of the return in order to show that taxes paid by claimant, into the same office and during the same time, upon lands of which his ownership was undisputed, were not paid to or by the same person as were those paid on the land in controversy, or to show that there was another tract surveyed by the commonwealth in this same locality, in the name of W., which was claimed b; R 4. JUDGMENT-JURISDICTION—ADMINISTRATOR'S SALE-Outlawed Debts. A court of record is not deprived of jurisdiction to order a sale of a decedent's lands to pay debts, by the fact that the petition shows that the debts are outlawed. In Error to the Circuit Court of the United States for the Western District of Pennsylvania. R. P. Allen, for plaintiffs in error. James Ryon, J. W. Ryon, and Saml. Linn, for defendants in error. MATTHEWS, J. This is an action of ejectment, brought by the defendants in error in the circuit court of the United States for the Western district of Pennsylvania, to recover possession of a tract of land situated in Northumberland and Columbia counties, containing about 230 acres. There was a *verdict and judgment in favor of the plaintiffs below, to reverse which this writ of error is brought. Both parties claim title under the commonwealth of Pennsylvania. It appears from the bills of exception taken during the progress of the trial that the plaintiffs put in evidence a certified copy of a document, called an application, No. 12,969, as follows: "William Elliott applies for four hundred acres of land on a branch of Roaring creek, adjoining Dr. Thomas Ruston's lands, in Catawissa township, Northumberland county; Joseph Tyson applies for four hundred acres of land, lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in Catawissa township, in North'd county; William Shannon applies for four hundred acres of land, lying one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston, in Catawissa township, North'd county; Lewis Walker applies for four hundred acres of land, lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands, in Catawissa township, North'd county; Nathaniel Brown applies for four hundred acres of land on a branch of Roaring creek, adjoining Dr. Thomas Ruston's lands, in Catawissa township, North'd county; Ebenezer Branham applies for four hundred acres of land on a branch of Roaring creek, adjoining Dr. Thomas Ruston's lands, in Catawissa township, North'd county." Also a certified copy of old purchase voucher No. 12,969, as follows: "26 November, 1793. Certified copy of old purchase voucher No. 12,969. Joseph Tyson, 400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in Northumberland county; William Elliott, 400 a's situate on a branch of Roaring creek, adjoining Dr. Thomas Ruston's other land, in Catawissa township, said county; Lewis Walker, 400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in said county; William Shannon, 400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands, in said county; Ebenezer Branham, 400 a's on a branch of Roaring creek, joining Dr. Thomas Ruston, in said county; Nathaniel Brown, 400 a's on a branch of Roaring creek, joining land of Dr. Thomas Ruston, in said county. Amount, £60, interest from date thereof. [On the side:] A gen'l rec't wrote." The plaintiffs also offered in evidence a copy of old purchase blotter No. 12,969, as follows: June 14. 12969. Dr. Ruston. 6 W'r'ts of 400 a's Am't 2400 a's, 50s p. c't p'd specie ch., “Fees 60s p'd, rem'r Charge of 168 D's. £60 "Rec't d'd." To this the counsel for the defendants objected on two grounds: (1) That, the warrant to Lewis Walker appearing to be dated November 26, 1793, it was not competent to prove payment of the purchase money by Ruston on June 14, 1794; and, (2) that, if any title whatever accrued to Ruston, it would be but a resulting trust, as the plaintiffs did not propose to follow it with any evidence showing a conveyance of the legal title to Ruston or those elaiming under him, or any possession of the land by him or them, or the bringing of any action of ejectment to recover it within twenty-one years from the date of the warrant. The objections were overruled, and an exception taken. The plaintiffs also put in evidence a copy of the warrant to Lewis Walker, dated the twenty-sixth of November, 1793, for 400 acres adjoining Dr. Thomas Ruston's other lands; and a copy of a survey for Lewis Walker, dated the twenty-second of October, 1794, in pursuance of the warrant, containing 371 acres. The survey was followed by a certified copy of the return made by William Gray, deputy surveyor, into the land-office showing that on February 23, 1795, he returned to the land-office the Lewis Walker survey for 371 acres. Warrants and surveys of five other tracts were introduced in evidence in connection with the warrant and survey of the Lewis Walker tract, being the same tracts of land which are mentioned in the application and purchase voucher. The plaintiffs then traced title into Nicholas Le Favre by virtue of a judgment against Thomas Ruston in 1796, and levy on lands of the defendant Ruston, including the Lewis Walker tract, and a sale and conveyance of the same to Le Favre by a marshal's deed. Nicholas Le Favre having died, his will was admitted to probate on the twelfth of August, 1815, on which day William R. Smith took out letters of administration with the will annexed. A schedule attached to the will of the testator, of his lands in Pennsylvania, included the Lewis Walker tract for 371 acres. In 1836, William R. Smith, the administrator, with the will annexed of Nicholas Le Favre, petitioned the orphans' court of Philadelphia for an order to sell real estate to pay the debts of the decedent. By further proceedings upon said application in the orphans' court of Northumberland county, where a portion of the lands of Le Favre were located, a decree of sale was obtained, and the Lewis Walker tract, among others, was sold on the ninth of May, 1837, to Joseph Brobst, as the property of Nicholas Le Favre. A deed was made to Brobst for the land, and the sale confirmed in Northumberland county, where the lands were located. By sundry mesne conveyances the title of Brobst was vested in the plaintiffs below. There was evidence tending to show that the lands in controversy were wild and unimproved until 1864, when the parties through whom the plaintiffs claim title took actual possession thereof, and improved the same by the erection of a house and saw-mill, and put to work a corps of men for the purpose of proving the coal veins. These operations and expenditures were continued for a period of about 18 months, at a cost of between $40,000 and $50,000, when the work was suspended as not being profitable; but possession was maintained through agents and tenants until 1875, when the defendants took forcible possession, claiming title. • The defendants below objected to the admission in evidence of the records from the orphans' court of Philadelphia, showing the proceedings resulting in the sale of the lands of Nicholas Le Favre to Joseph Brobst, on the ground that the debts of the decedent, as set forth in the petition of the administrator, to pay which the order of sale issued, were barred by the statute of limitations and their lien extinguished, by reason of which it was claimed that the orphans' court had no jurisdiction to grant the order. The objection was overruled, and an exception taken. 469 There was also evidence introduced by the plaintiffs, which was objected to, tending to show payment of taxes by those under whom the plaintiffs claim. The defendants below offered in evidence on their part an application of Daniel Reese, Lewis Walker, and others, filed in the land-office November 26, 1793, indorsed "Ent'd by Wm. Lane for Daniel Rees:" also the warrant from the commonwealth to Lewis Walker for 400 acres, dated November 26, 1793; also the survey to Lewis Walker, made October 22, 1794, in pursuance of the warrant of November 26, 1793, describing the tract in dispute; and then offered a certified copy of a patent from the commonwealth of Pennsylvania to Peter Grahl, dated April 12, 1797, for the same tract, which patent contained a recital to the effect that Lewis Walker, by deed dated November 27, 1793, had conveyed the said tract with the appurtenances to Peter Grahl. Counsel for the plaintiffs below objected to the introduction in evidence of this patent on the ground that Dr. Ruston held a prior title to the land from the commonwealth. This objection was sustained, the court refusing to allow the patent to be read to the jury, to which the defendants excepted. The defendants below then renewed the offer of the patent to Peter Grahl for the land in dispute, in connection with an offer to prove a connected chain of title from Peter Grahl to themselves, to be followed by proof that they took actual possession of the land in dispute in 1875, paid taxes by redeeming the land from tax sales, made improvements, expended large sums of money in opening coal mines, and have ever since held actual possession of the land;* and also that Nicholas Le Favre, who purchased the alleged title of Dr. Ruston at marshal's sale on October 11, 1803, received notice in October, 1814, of the title of Peter Grahl under the patent to him, and that the plaintiffs below, when they purchased at sheriff's sale in 1872, received notice of the same facts. This offer was rejected, and an exception duly taken. The court below also refused to allow the defendants to read in evidence certain parts of the return of William Gray, deputy surveyor, to the commissioners of Northumberland county, made in 1796, other parts of which had been read by the plaintiffs below, in order to show that the taxes paid by Dr. Ruston on the lands, which he did in fact own in the same county, and paid into the same office during the same time, were paid to or by a different person. than were the taxes paid on the land in dispute; and to show that there was another tract surveyed by the commonwealth in the same locality, and in the same county, in the name of Lewis Walker, as warrantee, which was claimed by Dr. Ruston. These offers were also rejected by the court, to which ruling the defendants excepted. The court below charged the jury, among other things, as follows: "The plaintiffs put in evidence a certified copy of an ancient paper, dated November 26, 1793, on file in the land-office, designated as old purchase voucher No. 12,969, and, in connection therewith, a certified copy of an entry, under date of June 14, 1794, from the old purchase blotter in the land office. These documents were offered to show, and they are evidence tending to show, that Dr. Thomas Ruston was the owner of the Lewis Walker warrant, and paid to the commonwealth the purchase money for said tract of land." And also: "The plaintiffs have shown that, by sundry mesne conveyances, the title which Nicholas Le Favre thus acquired became vested in them prior to the bringing, of this action. In connection with their paper title the plaintiffs gave evidence tending to show that for many years they, and those under whom they claim, asserted title to the land, and paid taxes thereon, without any hostile claim being set up against them, until the year 1875, when the defendants took possession. If the evidence on the part of the plaintiffs is believed by the jury, it makes out a prima facie case for the plaintiffs, and they are entitled o your verdict upon this branch of their title." To these charges the defendints excepted. These several rulings of the court are now assigned for error. In the case of Sims v. Irvine, 3 Dall. 425, which was an ejectment for land ying in Pennsylvania, decided by this court in 1799, it was said that, in that state, "payment, or, as in this case, consideration, passed, and a survey, though unaccompanied by a patent, gave a legal right of entry which is sufficient in ejectment. Why they have been adjudged to give such right, whether from a defect of chancery powers, or for other reasons of policy or justice, is not now material. The right once having become an established legal right, and having incorporated itself as such with property and tenures, it remains a legal right, notwithstanding any new distribution of judicial powers, and must be regarded by the common-law courts of the United States in Pennsylvania as a rule of decision." • The case of Evans v. Patterson, 4 Wall. 224, decided in 1886, was similar. In that case Mr. Justice GRIER, delivering the opinion of the court, said, (page 230:) "The case cannot be made intelligible without a brief notice of the very peculiar land law of Pennsylvania. The proprietors of the province, in the beginning, allowed no one man to locate and survey more than three hundred acres. To evade this rule in after times, it was the custom for speculators in land to make application in the names of third persons, and, having obtained a warrant, to take from them what was called a deed poll,' or a brief conveyance of their inchoate equitable claim. Pennsylvania, until of late years, had no courts of equity. Hence, in an action of ejectment, the plaintiff might recover without showing a legal title. If he had a prior inchoate or equitable title, either as trustee or cestui que trust, he might recover. The courts treated the applicant or warrantee as trustee for the party who paid the purchase money, or paid even the surveying fees; for the purchase money, under the location or application system, was not paid at the time, and sometimes never. When the state succeeded to the title of the proprietors, the application system was abandoned, and warrants were granted on payment of the purchase money for the number of acres for which his warrant called. Hence, where the claimant of the warrant was unable to show his deed poll, he might recover by showing that he paid the purchase money; that the warrantee whose name was used was therefore trustee for him. And an ejectment might also be maintained in the name of the warrantee, although he had no beneficial interest in the land, and had no knowledge of the institution of the suit. See Campbell v. Galbreath, 1 Watts, 78, and also Ross v. Barker, 5 Watts, 391, which was decided on the title now in question. It is equally well established that the action of ejectment may be maintained upon a warrant and survey by the owner who paid the purchase money, without any conveyance from the person in whose name the application was made and the warrant issued. Brown v. Galloway, Pet. C. C. 291; Willink v. Miles, Pet. C. C. 429. "9 It was said by Mr. Justice WASHINGTON, in Huidekoper v. Burrus, 1 Wash. C. C. 113, that "the person whose name appears on the warrant is considered as merely a nominal grantee, and a trustee for the person who pays for the warrant and has it executed;" stating, as a matter of fact in the history of the practice of the state, that, "whenever one person takes out many warrants, he borrows the names of certain persons, no matter who they are." See, also, Griffith v. Tunckhouser, Pet. C. C. 418; James v. Gordon, 1 Wash. C. C. 338; Copley v. Riddle, 2 Wash. C. C. 354. This doctrine is established as the law of Pennsylvania by many decisions of the supreme court of that state. In Duer v. Boyd, 1 Serg. & R. 210, that court said: "For above fifty years past lands held by warrant and survey, without patents, have been considered as the legal estate in England, subject to the liens of judgment, curtesy, dower, and other incidents of real property." In Maclay v. Work, 5 Bin. 158, it is said: "An estate held by warrant and survey, or other imperfect title, without patent, is of a singular nature. In many, and indeed in most, respects it is considered as a legal estate against all persons but the common wealth. It is subject to the same laws of descent, devise, and conveyance as the legal estate. Tenancy by the courtesy and in dower are attached to it. An ejectment may be supported on it." And in Gingrich v. Foltz, 19 Pa. St. 40, it is said: "In Pennsylvania a warrant and survey, attended with payment of the purchase money, is to be considered, as against all but the commonwealth, in the same light as the legal estate in England, and it is not to be distinguished, as to the mode of convey |