1808. DRUM V. whether it created a lien at all, or whether it ranked as a judgment of the Common Pleas when considered as a debt due from a deceased person whose assets were insufficient to pay his SNYDER. debts. To remove all difficulty in these respects, it was thought proper to introduce the clause in the act of 1794, which authorizes the plaintiff to file the transcript immediately, and gives it when filed the same effect as a judgment in the Common Pleas. But it was not meant to take away from the defendant the protection against imprisonment while he had goods, which is given him by the act of 1745; and which would be the case if it is to be considered simply as a judgment of the Common Pleas. This would be construing the law so as to defeat one part of it by another, which is never to be done if it can be avoided. The record for some purposes remains before the justice after the transcript filed in the Common Pleas. An appeal may be made, or the record removed by certiorari, in both which cases it is supposed to remain before the justice; so proceedings may be had against the special bail. There is no inconsistency in supposing the record to remain before the justice, while at the same time a transcript exists in the Common Pleas, having the effect of a judgment there, on which execution may be issued in case the debt is not levied by an execution from the justice. This mode of construction makes a consistent system, and is injurious to neither party. The Court is therefore of opinion that there was no irregularity in the proceedings before the justice, and that the judgment of the Court of Common Pleas be affirmed. Judgment affirmed. 1808. Sunbury, Lessee of BUCHANAN against M'CLURE and SMITH. Saturday, THIS July 16th. ment and chased from no ence to the the land of HIS cause was tried before BRACKENRIDGE J. at a Circuit An improve. Court for Northumberland, in May 1804. It was an eject-settlement ment for land lying within the purchase from the Indians of on lands purNovember 1768. The lessor of the plaintiff claimed under an the Indians improvement and settlement made between the date of that in November 1768, made purchase, and the opening of the land office on the third of April between that 1769. He also shewed an application for the land, entered the date and the opening of day on which the land office was opened, and drawn in the lot- the land tery devised at that time to fix the priority of the respective office on the applications. The defendants claimed under an application de- 1769, give scriptive of the land, entered on the same day with the plaintiff's, "o preferbut of a prior number according to the decision of the lottery. settler The reason of resorting to a lottery, as well as the effect of it, against a descriptive appeared by a statement drawn up by the proprietary officers application at the opening of the land office. It recited that the 3d of Aprilentered in 1769 being appointed for opening the land office for the new fice on the purchase made at the treaty of Fort Stanwix, and it being day it known that great numbers of people would attend ready to give in their locations at the same instant, it was the opinion of the governor and the proprietary agents, that the most unexceptionable method of receiving the locations, would be to put them all together, after being received from the people, into a box or trunk, and after mixing them well together to draw them out, and number them in the order they should be drawn, in order to determine the preference of the applicants. Those who had settled plantations, especially those who had settled by permission of the commanding officers to the westward, were declared to have a preference. But those persons who had settled or made what they called improvements, since the purchase, it was declared should not thereby acquire any advantage. Upon this case his Honour charged the jury, that an improvement and settlement made between the time of the purchase in 1768 and the opening of the office on the 3d of April 1769 within that purchase, gave a preference to the settler, even against an application properly describing the land; and that No. 2, accompanied with such a settlement, was entitled to a VOL. I. 3 C opened. 1808. preference over No. 1. The jury accordingly found for the plaintiff. A motion for a new trial was then made and overruled, and the defendants appealed to this court. Lessee of BUCHANAN V. McCLURE. Upon the argument here, several questions were raised which had no connection with the principal point, the misdirection of the Judge in his charge. Upon this point-- Watts for the defendant argued, that the proprietaries, who were the exclusive owners of the soil, had a right to grant it upon any terms they chose; and that by the preamble to the lottery they explicitly refused a preference to a settlement like the plaintiff's. That therefore the settlement was out of the question, and the case stood upon the two interfering applications, of which the defendant's was first drawn. With respect to lands previously purchased of the Indians, the uniform practice of the proprietaries in giving a preference to settlers, had, it was true, at last made the law in regard to those lands; but with reference to this purchase there was no usage established before the opening of the land office; and the circumstance of the office remaining shut as to these lands five months after the purchase, was of itself an evidence that no title to them could originate in that interval. If an improvement after the purchase could have been the foundation of a title, the proprietaries could not have performed the promise made by the lottery, the scheme of which went expressly upon the ground that no preference attached to such improvement. The preference was limited to a meritorious class of people who had settled under special licences before the purchase, or having gone on without licence had left their settlement in consequence of the act of 3d February 1768, 1 St. Laws 489., and the proclamation of the governor founded upon it. On these principles the board of property decided in favour of the defendant, in March 1770; and in November 1789 there was a verdict and judgment before Atlee and Rush Justices of the Supreme Court, in conformity to that decision. Evans for the plaintiff contended, that as he had settled on the land after the purchase was made, he was entitled to a preference, whether the proprietaries were willing to give it or not. The acts of Assembly countenanced the settlement by prohibiting it only on unpurchased lands; and the instant the purchase was made, the right of settlement attached in the citizen under the 1808. Lessee of υ. influence of a practice, which at last had become the law of the land as to all the vacant lands in the Commonwealth. Settlement was not confined to a particular district; it was a mode of obtaining title, as operative as a warrant, and as extensive as the unap- BUCHANAN propriated land in the state. It did not depend upon the land McCLURE. office being open. To cut off the right to settle these lands during the interval in question, was in fact to say that it could not exist after the land office opened, until it was expressly sanctioned by the proprietaries; for the usage could not apply with more force to these lands after the office opened, than it did before. The proprietaries however did not intend to deprive the plaintiff of a preference. Such an intention is not to be presumed, as it would have been unjust, and the preamble does not in fact discover it. The real object was to deprive individuals of any advantage from a mere colourable improvement; "such persons as had made what they call improvements, should not "acquire any advantage;" but there is nothing to exclude the preference legally due to those, who like the plaintiff, made a bona fide settlement with much labour, and in the extremity of winter. TILGHMAN C. J. This cause was tried at a Circuit Court at Sunbury in May 1804, when a verdict was given for the plaintiff. A motion for a new trial was made and overruled, upon which the defendants entered an appeal to this Court. The principal reason relied on in support of the appeal, is a supposed misdirection in point of law by Judge Brackenridge, who directed the jury that an improvement and settlement made between the time of the purchase by the late proprietaries of Pennsylvania of the Indians in the month of November 1768, and the opening of the land office on the 3d April 1769, for the sale of the lands included in that purchase, gave a preference to the settler against an application properly describing the land in question, entered in the land office 3d April 1769. The counsel on both sides made a written request that all the Judges of this Court would sit on the argument here, and this request has been complied with to prevent a failure of justice. Without such request we should have found ourselves under great difficulty. Judges Yeates and Smith are so nearly related to Mr. Charles Smith who is concerned in interest, that if it could have been avoided they would have declined sitting 1808. Judge Brackenridge delivered the opinion from which an appeal was made, and I was concerned in the trial as counsel for the defendants. Lessee of BUCHANAN V. McCLURE. To form a correct decision in this cause, it will be necessary to advert to the terms on which the land office was opened 3d April 1769. At that time the population of Pennsylvania was very considerable; and it was foreseen by the proprietary officers, that the applications for land at the same instant would be numerous, and that probably there would in many instances be more than one application for the same tract. In order therefore to put all persons on an equal footing, (after satisfying the claims of the officers who had served in the army raised by the province of Pennsylvania some years before, and a few special grants to persons who were entitled to particular favour,) they determined to decide the preference of all applications by a lottery, and to ask no part of the purchase money till twelve months from the date of the application. At the same time it was expressly declared that "those who had settled plantations, especially "those who had settled by permission of the commanding officers "to the westward, should have a preference. But those persons "who had settled or made what they call improvements since "the purchase, should not thereby acquire any advantage." Notice was given by public advertisement 3d February 1769 of the terms on which the office would be opened, and the opening was delayed till 3d April 1769 for the express purpose of giving the back inhabitants sufficient time to bring in their applications. The counsel for the appellee have made two points. 1. That the settler was entitled to a preference by the law of the land, of which the proprietaries could not deprive him. 2. That he was entitled to a preference by a fair construction of the terms on which the office was opened 3d April 1769. Title by settlement has always been favoured, and under proper restrictions it deserves favour; but it must not be supported to the destruction of all other rights. It cannot be denied, that the late proprietaries, who were absolute owners of the soil, had a right to make sales, and to grant rights, on what terms they pleased. If they had thought proper to grant no kind of right, but upon payment of the purchase money, neither the legislature, nor the courts of justice could have controlled them. But as they had been in the habit of encouraging poor settlers |