tention was to give them possession merely, reserving the title to himself, they should find for the plaintiff. The jury found for the plaintiff against the inclination of his Honour's mind; and a motion was made for a new trial, which was overruled by consent and without argument, that the question might come by appeal to this court.

It was accordingly now argued upon that appeal, by Duncan for the plaintiff, and by Elder and Hopkins for the defendants; and although several points were made to the court upon the evidence reported by Judge YEATES, as that Syler's wife had been advanced in her father's life time, and therefore was not entitled to a share of his estate, until the advancement was brough into hotchpot, and also that the whole was a question of fact which the jury had a right to determine, the material point was, whether a parol gift of land, under the circumstances of this case, passed the title.

For the defendants it was argued, that this court proceeding upon equity principles, would, like a Court of Chancery, carry into effect any parol agreement concerning lands, where it was in part performed; for the statute of frauds should never be so turned, construed, or used, as to protect or be a means of fraud. That delivery of possession had always been held to be a part performance, especially if money had been expended in improvements. 1 Fonbl. 165. 168. 175. Sugden's Law of Vendors, &c. 65. 73. Wills v. Stradling, (a) Earl of Aylesford's case. (b) That there was no difference as to this point between a parol gift upon the consideration of natural love and affection, and a parol transfer for money; and that it would be a gross fraud upon the defendants to defeat their title, after having been more than twenty years in possession, converted the land from a wilderness to a farm, paid the taxes, and exercised acts of complete ownership with the consent and direction of the father. There was clear proof of a gift, and the verdict was therefore against law and evidence.

For the plaintiff it was contended, that by the Act of frauds and perjuries of 21st March 1772, 1 St. Laws 640., an estate (b) 2 Stra. 783

(a) 3 Vez. jr. 381.

1808.

Lessee

of

SYLER

V.

1808. Lessee

of

SYLER

v.

ECKHART.

by livery and seisin only, or by parol, is nothing more than an estate at will; and that this Act should not be frittered away by distinctions, as it had been a subject of regret among the judges in England that the provisions of their statute had ever been infringed or weakened by construction. Cooper v. Elston. (a) That from this sentiment the modern cases had gone upon much stricter grounds than formerly, refusing to consider the payment of money as a part performance. That at all events, cases of part performance by delivery of possession existed only as between vendor and vendee, and in such of those cases merely wherein the vendee's possession was inconsistent with the vendor's title, Wills v. Stradling before cited, and 1 Sugden 73.; but that delivery of possession by a parent to a child was not inconsistent with the parent's title, particularly where the father and family resided on the same tract, and possession of part only was delivered to the son. The question of gift or not was however a question of fact, and so left to the jury whose province it was to decide.

The opinion of the Court was delivered by

TILGHMAN C. J. This is an appeal from the Circuit Court of Dauphin county, on a motion for a new trial, overruled by Judge YEATES who tried the cause, without argument and by

consent.

The defendants relied on a parol gift of lands by their deceased father, in consequence of which they had made valuable improvements, and had long possession in their father's life

time.

Although the court are not disposed to extend the principles on which parol agreements concerning lands have been confirmed, farther than they have been already carried, yet they are bound by what has been decided. It has been settled that where a parol agreement is clearly proved, in consequence of which one of the parties has taken possession and made valuable improvements, such agreement shall be carried into effect. We sce no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labour, of which he meant to reap the

(a) 7 D. & E. 14.

Lessee of

v.

ECKHART.

benefit himself. Whether such gift was made in the present in- 1808. stance was submitted by the court to the jury.The jury thought there was not a gift; but the Judge who tried the cause was dissatisfied with the verdict, and thought that the evidence in SYLER favour of the gift greatly preponderated. He was better able. to judge of this matter than we, who only take the evidence from his notes; and therefore his opinion is entitled to great weight. But independent of that, enough has appeared to satisfy us that there is reasonable ground for a new trial. The Court forbear to enter into remarks upon the evidence, as the cause is to be tried again.

THIS HIS case came up from the Common Pleas of Northum- The record of a judgberland county by writ of error. The defendants in error ment by a on the 23d July 1803, obtained a judgment against Drum for justice of the 17. 10s. with costs, before a justice of the peace; and on the remains be22d of August following filed a transcript of that judgment in fore him, and may be the Common Pleas. They withdrew this transcript on the 30th the founda♦ August 1804, and in November of the same year obtained a tion of a judgment before the same justice in a scire facias upon the after a transcire facias, original judgment. The proceedings were then removed by script has certiorari to the Common Pleas, where the judgment was the Common affirmed.

been filed in

Pleas under

the act of

The error alleged was this, that the original judgment was April 19th removed from before the magistrate, and became a judgment 1794. of the Common Pleas by filing the transcript in that Court; of course that there was nothing whereon to found the scire facias.

By the act of March 1st 1745, called the Five pound Law, 1 St. Laws 304. it is enacted that after judgment given by a justice of the peace, he shall issue an execution directing the constable to levy the debt and costs of the defendant's goods and shattels, and for want of sufficient distress to take and imprison

1808. DRUM

υ.

his body; but in case no assets can be found sufficient to pay debt and costs, it provides that the justice shall give a transcript of his judgment to the plaintiff, who upon filing the same SNYDER. in the Common Pleas, may proceed to levy the debt and costs on the lands and tenements of the defendant by fieri facias &c. in like manner as by law is provided in other cases. Sec. 3. This provision continued to govern upon the subject of transcripts, after the jurisdiction of justices was extended by the act of 5th April 1785, to ten pounds; but by the act of 19th April 1794, called the Twenty pound Law, 3 St. Laws 536. which incorporates all the regulations of the law of 1745, and applies them to the increased jurisdiction of the magistrate, it is enacted that the justice before whom judgment is obtained, shall upon request make out and deliver a transcript of such judgment under his hand and seal; and upon such transcript being filed in the prothonotary's office, it shall have the same effect as judgments obtained in the Courts of Common Pleas. Sec. 3.

D. Smith and Hall for the plaintiff in error, argued that by the filing of the transcript in the Common Pleas the jurisdiction of that court attached, from which moment the authority of the justice in the particular suit was at an end; that as the Twenty pound Law gives to the transcript the same effect as a judgment in the Common Pleas, it makes it to all intents a judgment of that court to be enforced by its ordinary process of execution; and that therefore no judgment could remain before the justice, otherwise there would be two judgments against the defendant, under both of which he would be liable to execution.

Evans for the defendants in error replied, that the only design of the transcript under the Twenty pound Law, was to create a lien upon the defendant's lands. That the provision of the law of 1745 was defective, inasmuch as it did not make the transcript a lien, nor permit it to be filed until execution had gone against the defendant's goods, and they were found insufficient; which evil the third section of the law of 1794 merely remedied, by authorizing a transcript to be filed at any time after judgment, and by making it a lien in the same manner as judgments of the Common Pleas; but that the defendant's body still continued exempt from execution after the transcript was filed, if

he had goods, no part of the law of 1745 as to execution being repealed by the law of 1794; whereas if the transcript became a judgment of the Common Pleas, execution might have gone,

1808.

DRUM

v.

until a recent law, against body, lands, or goods, in the order the SNYDER. plaintiff should elect. The judgment remaining before the justice for the purpose of execution, it was of course a good ground for the scire facias.

The opinion of the Court was delivered by

TILGHMAN C. J. The case turns upon the act of 19th April 1794, commonly called the Twenty pound Act. By this act the jurisdiction vested in the justices of the peace by the act of 1st March 1745 was extended to debts not exceeding twenty pounds, under the same regulations, restrictions, and exceptions, as are contained in that act "in the same manner as if the said act had "been recapitulated and reenacted," other than the limitation to debts not exceeding five pounds. It becomes necessary therefore to refer to the provisions of the act of 1745. It gave a stay of execution of three months to freeholders, and also to persons not freeholders, provided they entered bail in the manner prescribed by the act. It gave an appeal to the Court of Common Pleas. The execution to be issued by the justice was to be levied on the defendant's goods if he had any, before his body could be taken; and in case there were no goods to be found, the plaintiff might file a transcript in the Court of Common Pleas, from whence an execution might issue to levy the debt on the defendant's lands. But by the third section of the act of 19th April 1794, the plaintiff might file a transcript of the judgment in the Court of Common Pleas at any time; and such transcript when filed was to have "the same effect" as a judgment in the Court of Common Pleas.

The plaintiff in error contends, that by the filing of the transcript the record was completely removed from the justice, so as to oust him of all his jurisdiction; and that the judgment is to be considered to all intents and purposes as a judgment of the Common Pleas. It appears to us that this was not the intent of the law. The act of 1745 had sufficiently provided for the issuing an execution from the Common Pleas to levy on lands; but it was defective in not permitting the plaintiff to obtain a lien on the lands of the defendant by filing the transcript, until after he had proceeded against the goods; and there might perhaps be a doubt