
    [Philadelphia,
    February 6, 1836.]
    KRIDER and Another against LAFFERTY.
    IN ERROR.
    1. In trespass for breaking the plaintiff’s close, and carrying way his goods, evidence of the value of the goods is admissible on the part of the plaintiff, although he may have brought replevin for the same goods, if the defendant has pleaded property in that aetion, and it is still depending; and a fortiori, if it has been discontinued, though such discontinuance was after the commencement of the trial of the action of trespass.
    2. If a paper purporting to be a receipt, is rejected by the Court, but afterwards admitted on proof of its authenticity by the person signing it, the rejection in the first instance cannot be assigned for error, on the ground that it compelled the party offering it, to call as a-witness the person signing it, who was the witness of the other party, and thus gave the other party the benefit of the cross-examination.
    3. In trespass against a purchaser at sheriff’s sale, where the question was whether the purchase included a certain piece of ground in possession of the plaintiff; the defendant gave in evidence a receipt signed by the former owner of the land sold at the sheriff’s sale, by which he agreed to give up possession at a certain time: it was held that the plaintiff might examine the witness who gave the receipt, to show that it was not his intention to include in the agreement, the lot occupied by the plaintiff.
    4. The rule that parol evidence is not admissible to alter or contradict written instruments, applies only to eases between the parties to the instrument, their representatives, and those claiming under them; but not to strangers. Per Kennedy, J.
    5. A deed in the following words: “ Memorandum of an agreement made, &e., this 24th day of February, 1816, between J. L. of, &c., and D. L. of, &c., witnesseth, that the said J. L. hath let unto the said D. L. his legal heirs and representatives, a certain piece of meadow containing one acre, &c., at the rate of 815 per acre, to be paid by the said D. L., or his legal heirs, annually, to the said J. L. his heirs and assigns. In witness both parties have hereunto set their hands and seals, in the year first above written,” &c.: was held to pass a fee simple to D. L., subject to an annual ground rent in fee, and not to be a lease for years merely.
    6. Where the owner of a lot of land containing about twenty acres, conveyed one acre of meadow land to A., who neglected to record his deed, but took possession and planted it with willows for the purposes of his trade of basket making-, which willows he cut every year at the proper season, and he continued in this possession about 14 years, when the land of his vendor was sold at a sheriff’s sale; it was held that the possession of A. was sufficiently distinct and unequivocal to give notice to the purchaser at the sheriff’s sale.
    7. It cannot be assigned for error, that the Court below declined answering a question put to them by a juror,on a point oflaw.
    Upon a writ of error to the District Court for the City and County of Philadelphia, it appeared thatan action of trespass was brought in that Court by Daniel Lafferty against John J. Krider and Joshua Peeling, to recover damages for breaking and entering the plaintiff’s close, &c., under the following circumstances:
    John Lentz the elder, being the owner of a tract of land situate in the township ofPassyunk and County of Philadelphia, containing 18 acres and 20 perches, on the 24th of February, 1816, executed the following instrument:
    “ Mem. of an agreement made and this 24th day of February, one thousand eight hundred and sixteen, between John Lentz of the Township of Passyunk, County of Philadelphia, farmer, of the one part, and Daniel Lafferty of the same place, basket-maker of the other part, witnesseth
    That the said John Lentz hath let unto the said D. Lafferty, his legal heirs and representatives, a certain piece of meadow containing one acre, be the same more or less, at the rate of fifteen dollars per acre, to be paid by the said Daniel Lafferty or his legal heirs annually, to the said John Lentz, his heirs and assigns.
    In witness both parties have hereunto set their hands and seals in the year first above written.
    John Lentz, [l. s.]
    Daniel Lafferty, [l. s.]”
    Lafferty took possession under this instrument, and for several years cultivated willows, to be used in his trade of basket-making.
    Lentz died in the year 1817, and by virtue of proceedings in partition in the District Court, the said tract of 18 acres and 20 perches, was sold by the sheriff, and purchased by Krider one of the defendant’s in the month of September, 1830.
    In the spring of 1831, he sent some men to cut the willows; which was the trespass complained of.
    The declaration contained two counts,—
    1. For breaking and entering the plaintiff’s close, treading down, trampling upon and spoiling the plaintiff’s willows, and cutting down the willows, and taking and carrying away the willow twigs, &c., and converting and disposing thereof, and breaking down, prostrating and destroying the plaintiff’s fences.
    2. For cutting down and destroying the plaintiff’s willows and carrying them away, and converting them, &c.
    Issue having been joined on the plea of not guilty, the cause came on for trial in the District Court, on the 8th of November, 1833, when the plaintiff, after giving in evidence the foregoing instrument of the 23th of February, 1816, examined Daniel Coppall, a witness, who testified as follows:
    “Lafferty used to be in possession of a one acre willow lot: whether he was or not when the willows were cut, I don’t know. I can’t say whether he planted the willows. It was a willow lot long back. It always went by the name of Daniel Lafferty’s Garden, since I knew it; I have known him cut the willows on it. He keeps a tavern on the banks of the Schuylkill, farms, and last season followed basket-making. I went there to help Peeling cut willows down in April, 1831. We had cut down all but some which were in the water, which was cold, and we thought we would leave them for a warm day. We had tied up 18 or 20 bundles. Lafferty came and asked by whose authority we cut. Peeling said, by Mr. Krider’s. Lafferty said he considered them his property, and forbad Peeling taking them away. Peeling said if that was the case, he would quit them and let them be. We left the garden and all went away together. Lafferty, Peeling, Wm. Hoffner, a man named Billy, myself, and I think one or two of Peeling’s men, all went with intention to help Peeling cut down willows. Peeling is a basket-maker, lives near the Buck. Lafferty wished him to leave them till Monday morning, he would show him something. Can’t say how many bundles were cut, as we did not tie them up. I am a basket maker. It was the proper season for cutting willows. We had tied 18 or 20 bundles, not a quarter of them. I have bought willows sometimes, can’t say for how much. I remember its being called Lafferty’s Garden ten or twelve years ago.”
    The plaintiff then called a witness to prove the value of the willows cut by the defendant’s order; but the defendant’s counsel objected to any evidence being given of their value, on the ground that an action of replevin had, previously to bringing this suit, been instituted by Lafferty against Peeling, in the Court of Common Pleas; wherein the defendant had claimed property and given a property bond to the sheriff. The plaintiff’s counsel, however, produced a certificate from the prothonotary of the Court of Common Pleas, dated on the day of the trial, setting forth that the action of replevin had been discontinued on that day. The Judge admitted the evidence, and the defendant’s counsel excepted.
    On his part, the defendant gave in evidence the sheriff’s deed, bearing date the 20th of September, 1830, and acknowledged on the 24th of the same month, conveying to him in fee (inter alia) the said one acre lot. He then called Richard Peltz a witness, who testified as follows:
    “ I am the son-in-law of the late John Lentz, and the acting executor of his will. I am acquainted with the two tracts of land mentioned in the sheriff’s deed. It includes the acre of willow ground. The whole property in the deed was during the life of John Lentz, senior, let by him to his son John Lentz, junior. John Lentz, junior, held the property as tenant from March 1817, till the sale to Krider. After the death of his father, John Lentz paid the rent to me as acting executor. I never knew as executor, any one as-tenant of the property but John Lentz. No one but John Lentz paid me the rent. I gave him receipts for the whole rent due the heirs, and took receipts from him for his portion of what might be due, exchanging the balance of money which might be due from one to the other. I settled yearly with him. John Lentz is also an executor. The executors of John Lentz, sen., are, Philip Peltz, John Lentz and myself. The lease was originally, as I understood, from old John Lentz, for his son to take possession, and rent to commence on the first of March, 1S17. He had possession before, but the rent to commence then ; John had possession before 1817; but I can’t say he had particularly possession of that one acre lot, but his father gave him permission to do as he pleased as tenant. John Lentz, jr. knew Lafferty had alease of the acre lot, and was in possession, at the time he took the farm of his father. I do not know that Lafferty was in the habit of settling and paying rent to John Lentz as executor. I knew that Lafferty had taken that acre of land from John Lentz deceased, and had planted willows in it; and I knew that in the arrangement between John Lentz and his father, he, John Lentz, jr., was to receive the rent from Lafferty for his own private use. I knew this from the father and son. The son was to receive the rent from Lafferty for his own private use. The lot was a grass lot or meadow before Lafferty took it. Lafferty occupied it from the date of his lease 24th February, 1816, till the time of the sale by the sheriff.”
    Philip Peltz, another witness produced by the defendant, testified that he was one of the executors of Lentz, that he never received any rent from Lafferty or any other person, and as executor, he did not know Lafferty as tenant: that, however, he knew that Lafferty held the willow garden from the date of the lease, sixteen or seventeen years, till the property was sold.
    The defendant’s counsel then offered in evidence (having proved the hand-writing,) a paper signed “ John Lentz,” dated the 14th of September, 1830, which was alleged to be an acknowledgment of the receipt of the sum of $10, as a consideration for delivering immediate possession of the land purchased by the latter at the sheriff’s sdle. The plaintiff’s counsel objected to the admission of the paper, and the Judge refused to permit it to be read; to which also the defendant excepted.
    The defendant’s counsel then called John Lentz, who testified that the receipt was signed by him and that Lafferty had no notice of the arrangement, to his knowledge. On his cross-examination, he was asked “ what the money mentioned in the receipt was paid for,” to which question the defendant’s counsel .objected; but the Judge permitted it to be put, and another exception was taken. The witness, in answer to the question testified as follows:
    “ The money was paid for possession of the premises I occupied, with the exception of the turnip patch. It was not paid for the possession of the willow lot; I never considered it in my possession. Previously to Lafferty’s taking the lot, I had offered my father a price for the farm including that lot. He did not think proper to take my offer, and afterwards let the lot to Lafferty for willows. This was upwards of a year before my father and I had agreed. I offered to pay my father seven hundred dollars a year. He refused, but after letting the willow lot he accepted the seven hundred dollars, and I considered for that reason I was to receive the rent for the plaintiff’s lot. He never let me the willow lot. I knew it was let to plaintiff, and my father knew that I knew it. Lafferty got the lot for fifteen dollars a year. My original offer of seven hundred dollars included the willow lot and all, and for that reason I considered myself entitled to receive the rent for the willows. My father died in September afterwards. He never let me the willow lot. My father agreed I should have the place. Nothing was said between him and me about the willow lot. No objections were made to my receiving the fifteen dollars, by the rest of the heirs. I received the rent for the willows, not as executor, but as an individual, as my right. It was understood by the executors that I was entitled to receive that. The rent was paid to me by Lafferty. Lafferty planted the willows I think in 1816: parti think in 1817. He appeared to me to take care of them. He cleaned the grass. Willows begin to sprout the second year. I should not suppose they were in their prime before the third year. There was an understanding between Lafferty and me as to my receiving the rent; but none as to the character in which I received the rent, and he paid it to me. There were accounts between Lafferty and myself. I owed him money. There is an unsettled account between the plaintiff and me. We have never settled any accounts. I have received goods from him and manure sometimes. He has paid me money for rent. I never was Mr. Lafferty’s landlord, further than as executor. I have not settled an account as executor in theoffice. I settled with Mr. Peitz, he settled with the office. I never kept an account of rents received from Lafferty. I had some little entry of them in a book which I have at home. When my father let me the whole place, it included more than was sold to Krider : fourteen and a quarter acres besides, with the building. I considered the whole,rent as seven hundred dollars, and not seven hundred and fifteen dollars. I don’t recollect that any thing was said about the willow lot, when the arrangement was made by me with Krider.”
    The defendant’s counsel then put in the said paper, which was read as follows:
    
      “Received, September 14th, 1830, of John J. Krider, $10 in full for immediate possession of the 18 acres and 20 perches of land that he bought of the estate of John Lentz deceased, except the piece in turnips, which I promise to deliver him 20 bushels, and give him possession of all the land the 25th of November next.
    John Lentz.”
    When the evidence was closed on both sides, the defendant’s counsel requested the Judge to instruct the jury as follows:
    1. That the instrument of writing dated February 24th, 1816, from John Lentz to the plaintiff, is not a lease, but if operative, conveyed to him a fee simple in the willow' lot, reserving an annual rent; or if not a fee, it conveyed to the plaintiff an estate, either for his own life or that of Lentz, and that in either case not being recorded prior to the purchase by Krider, it was void against him, he having no notice.
    2. That if the instrument referred to, did not convey a fee, but is to be considered a lease, it was void for uncertainty, no time being mentioned.
    3. That if held to be valid as a lease, Lafferty by payment of rent, recognised John Lentz, Jr. as his .landlord, became his sub-lessee, and had no rights against the owner of the property, except through Lentz, Jr. and was not therefore entitled to notice to quit.
    4. That the arrangement made on the 14th of September, 1830, between Krider and Lentz, was operative upon the sub-lessee Lafferty ; that it was equivalent to or operated as notice to quit, to Lentz, and was as such, binding on Lafferty his under-tenant; and that at all events it prevented any implied renewal of the lease, after the expiration of the current year.
    5. That the defendants in this case were at most unintentional trespassers, and the plaintiff entitled only to nominal damages.
    6. That the willows * having been suffered to lie some time on the ground after they were cut, and before they were carried away, the plaintiff could not support trespass for carrying them away.
    The Judge after recapitulating the evidence, charged the jury upon the points presented to him as follows:
    “ As to the points of law on which I have been requested by the defendant’s counsel to charge you; I instruct you that the instrument of writing dated Feb. 24th, 1816, from Lentz deceased to the plaintiff, is a lease, and did not convey to him a fee in the premises described therein, reserving an annual rent. It is unskilfully drawn, and on its face is ambiguous. It begins with a mutilated word, probably memorandum, and if so, is a memorandum under hand and seal of the parties, by which it appears that the said John Lentz hath let unto the said D. Lafferty his legal heirs and representatives, a certain piece of meadow land containing one acre be the same more or less, at the rate of fifteen dollars per acre, to be paid by the said D. Lafferty or his legal heirs annually to the said John Lentz, his heirs and assigns. It is expressly a letting at $15 per acre annually. The word let is strictly applicable to a lease and not to a deed in fee: and a lease is for life, for years or at will, and always for a less time than the interest of the lessor in the premises. If this be a lease for life, whether it be for the life of the lessee or lessor, not being recorded, it is void against a purchaser without notice. It is, however, impossible from the face of the paper to ascertain, with any degree of certainty, the agreement-of the parties in regard to the duration of the interest intended to be transferred, and therefore the instrument on its face would be void for ambiguity and uncertainty, if the defect be not explained and removed by external evidence, so as to give it validity to a certain extent, e. g. as a lease for a year or from year to year.
    If the evidence proves that the plaintiff was put in possession of the premises, under a rent of #15, by the elder Lentz, that he cultivated the land, and paid or accounted for the rent as tenant from 1816 until the sheriff’s sale to Krider, the instrument of writing, with the other evidence, may establish Lafferty’s right as tenant from year to year; and as such he was entitled to* three months’ notice to quit before the expiration of the year, from his lessor or his representatives, or his or their assigns, that is from Krider, the defendant. If, however, he paid rent to J. Lentz, Junr. as his landlord individually, he became subtenant of J. Lentz, Junr.; and notice to J. Lentz, Junr. would be sufficient.
    If, under the whole evidence, the jury are satisfied that Lafferty went into possession of the premises in 1816, as the tenant of John Lentz the elder, under an agreement to pay an annual rent, notwithstanding the written lease was thus ambiguous and uncertain; that the agreement was performed during the elder Lentz’s lifetime, and since his death until the purchase by Krider, then at the time of Krider’s purchase, Lafferty’s tenancy was from year to year, whether he held under the executors as their tenant, or as subtenant of John Lentz the younger.
    If the plaintiff was tenant of the executors, and not a subtenant, he was unaffected by the agreement between J. Lentz and Krider, and the defendants had no right to enter on the premises.
    The Court would like the jury to find specially, whether the plaintiff was tenant of the executors or, the subtenant of J. Lentz the younger, as in the latter event several principles of law arise, which will embarrass the case unnecessarily unless such a finding takes place.
    If, however, the plaintiff was the subtenant of J. Lentz, Junr. still he was not affected by the receipt or agreement between Lentz and Krider, especially as it is distinctly proved he had no notice of it. A notice to quit to Lentz would have been sufficient, without notice to Lafferty.
    On the 4th point, I charge that the law is not, as contended by the defendant’s counsel.
    On the 5th point, I also give a negative charge. If the jury are satisfied from the evidence and law as explained by the Court, that the plaintiff has been injured in the manner described in the declaration, the jury may give him in damages a fair compensation for the injury he has sustained.
    6th point. (The Judge here stated the claim from the declaration.) If this lot were let to grow willow twigs for basket-making; and the annual crop of the plaintiff, after breaking and entering his close, was cut partly down and partly destroyed, and the part cut down was subsequently, after lying on the ground, by the continuous and connected acts and conduct of the defendants, taken and carried away from the premises, such acts and carrying away the willows may be taken into consideration by the jury, in estimating the damages in this action. The existence of the facts, here referred to, is left to the jury on the evidence as matter of fact. If these facts are established, and particularly that the willow twigs were the annual crop of the plaintiff, trespass can be sustained by the plaintiff, for such cutting, taking and carrying away.”
    When the judge had concluded his charge, one of the jury asked the following question, “ Whose tenant is the plaintiff now, he being in possession of the premises ?” The judge declined answering the question, stating that “ it might embarass the cause, and that it was not necessary to its decision.”
    The jury found a verdict for the plaintiff with #150 damages, and they also found, that the plaintiff was the tenant of John Lentz, the elder, and not of John Lentz, the son.
    The defendant having removed the record to this Court, assigned the following errors:
    “ 1. That the Court erred in admitting evidence of the value of the willows cut by the plaintiff in this action of trespass, guare clausum fregit, while at the time of the institution of this suit, and at the time of the offering the evidence, an action of replevin was pending to recover the value of the willows.
    2. That the Court erred in refusing to admit in evidence the receipt of John Lentz, dated September 14th, 1830, from John Krider; the hand-writing of the said Lentz having been proved, unless the said Lentz were first examined, and proved that the money in the said receipt mentioned, was paid at the time of the giving thereof.
    3. That the Court erred in admitting said Lentz’s testimony, as to what the money in the said receipt mentioned, was paid for; the object of the testimony being to vary, alter, and contradict the said written receipt.
    4. That the Court erred in their answers to the several points, on which they were requested by the counsel of the plaintiffs in error to instruct the jury: because the Court charged the jury,
    1. That the instrument of writing, dated February 24th, 1816, from John Lentz to Lafferty, did not convey a fee simple to Lafferty in the willow lot, but that the same was a lease, and did not convey any freehold; and that though void on its face for uncertainty, the jury might resort .to extrinsic evidence, and that if, on the whole evidence, they were satisfied that Lafferty went into possession under an uncertain lease, but which operated from year to year, and continued, then Lafferty was tenant from year to year.
    2. That the Court charged, it was not void for uncertainty, but might be construed a lease from year to year.
    3. Because on the 4th and 5th points, the Court charged negatively, that the positions therein stated, were not law.
    4. Because on the 6th point the Court charged, that the jury might give damages for the carrying away the willows, although they were suffered to lie some time on the ground after they were cut, and before they were carried away; if they believed the acts of cutting and carrying away the willows were continuous acts.
    5. Because the judge erred in point of law in his charge to the jury.
    6. Because, upon being asked by a juror, if Lafferty continued tenant for want of notice, whose tenant he was, the judge declined answering the question, declaring that it would embarrass the cause, and was not necessary to the decision of the question.”
    Mr. M‘Call and Mr. James S. Smith, for the plaintiffs in error:—
    1. The Court ought not to have received evidence of the value of the willows cut; that being the subject of another proceeding, depending at the time the trial commenced. Floyd v. Browne, (1 Rawle, 121.) The defendant did not come prepared with evidence relative to value, upon this supposition; and the discontinuance was a surprise upon him.
    2. The receipt of Lentz was admissible to prove that he agreed to surrender the premises to Krider; and it ought to have been admitted in the first instance. By the decision of the Court, we were compelled to call Lentz, who was the witness of the other party. Townsend v. Kerns, (2 Watts, 180.) Rainey v. Black, (3 Penn. Rep. 40.)
    3. Lentz ought not to have been allowed to give evidence contradictory of the agreement contained in his receipt. Snyder v. Sny
      
      der, (6 Binn. 483.) M‘ Williams v. Martin, (12 Serg. R. 269.) Wallace v. Baker, (1 Binn. 610.) Shepherd v. Watson, (1 Waits, 35.)
    4. The Court erred in charging that the instrument of the 24th February, 1816, did not pass the fee. 2 Roll. Abr. 424, pi. 5, title, Rent Charge. Holmes v. Seller, (3 Lev. 305.) Grantham v. Hawley, (Hob. 132.) Shove v. Pincke, (5 Term. Rep. 124.) Stouffer v. Coleman, (1 Yeates, 397.) 2 Coke’s Inst. 483. Gray v. Holdship, (17 Serg. dp R. 414.) If this deed then was a conveyance in fee, it was void as against Krider, by the act of 1775; not having been recorded. The conveyance or lease was void for uncertainty, and could not be explained by the parol evidence. Kemmil v. Wilson, (3 Wash. C. C. Rep. 308.) That notice to a lessee to quit, is notice to a subtenant, is shown by the case of Jackson v. Baker, (10 Johns. Rep. 270.) 5 Bos. dp Pull. 330. The Court erred also in saying that the action might be maintained, although the willows had been suffered to lie on the ground after they were cut, they not being an annual crop like grass. Comyn’s Land, dp Ten. 577. [Gibson, C. J. — Was not the possession of Lafferty such as to give notice to the purchaser?] It would be difficult to say that his possession had sufficient notoriety. It consisted merely in cutting willow tops at certain seasons. In Billington v. Welsh, (5 Binn. 129,) it was said by C. J. Tilghman, that possession, to amount to legal notice, must be “ a clear, unequivocal possession.”
    5. Another error assigned is that the Judge did not answer the question of law propounded by a Juror. [Gibson, C. J. — A Judge is certainly not bound to answer a question put to him by a juror on a point of law.]
    Mr. Holy, (with whom was Mr. F. W. Hubbell,) for the defendant in error, was stopped by the Court, whose opinion was delilvered by *
   Kennedy, J.

The admission of the evidence complained of in the first error assigned, was certainly right. The circumstance of another action pending between the parties for the same cause, was not a sufficient objection to it. If two actions be brought for the same cause at the same time by the plaintiff against the defendant, he may plead the one in abatement of the other, and by this means abate them both. Pie v. Cook, (Hob. 128. S. C. Moore, 864, pl. 1193.) 1 Roll, Abr. 353. 39 H. 6, 13. pl. 16 per Prisot, Justice, cited 5 Mass. 179, in note. Mayor, &c. v. B. (1 Freem. 401. pl. 526. S. C. 3 Keb. 491.) 3 Burr. 1434. Com. Dig. Tit. Abatement, Ib. 24. Beach v. Norton, (8 Conn. 71.) But if one action be commenced before the other, the defendant may abate the second by pleading the pendency of the first; and unless he plead it in abatement, he cannot take advantage of it, because it forms no bar to the plaintiff’s right of action, and therefore cannot be given in evidence under the general issue, or any other plea in bar. Beyond, however, the vexation of having two suits on hand, to attend to at the same time, the defendant cannot be prejudiced; because after atrial and judgment rendered in one of the actions, no matter if it be the first or the second, in respect to the time of its commencement, he may plead such judgment puis darrein continuance, in bar of the other, and thus protect himself against all liability in it. Garvin v. Dawson, (13 Serg, & R. 146.) The taking and carrying away the willows were charged in the plaintiff’s declaration as part of his complaint; and after evidence given on the trial tending to prove the fact, the evidence objected to, was certainly material to the issue, and therefore properly admitted.

The second error is not sustained either: because even admitting that the Court were wrong in refusing to permit the receipt to be read in evidence, still they may be • considered as having corrected their error afterwards, by admitting it. The counsel for the plaintiffs in error, however, allege, that their clients were prejudiced, notwithstanding the subsequent admission of the receipt in evidence: because in consequence of the Court’s refusing to permit the receipt to go in evidence to the jury when first offered, they say, that they were compelled to adduce John Lentz, jr. as their witness, who was unfavourably disposed towards them, and in his testimony gave a colouring to the case, in some respects, that was untrue and calculated to prejudice the jury against them: also, that the plaintiff below, who, as they believe, intended to adduce Lentz as a witness on his behalf, by this gained an advantage that he could not have had in case he had called him first, by drawing from him all the testimony he wished, in answers to hading questions. It may be that it was no disadvantage to the plaintiff below, that the plaintiffs in error called John Lentz, jr. as their witness, but still it cannot be said with propriety, that the Court below compelled them to do so. If they were convinced that the Court was wrong in refusing to permit the receipt to be read in evidence when first offered, they ought, after taking their bill of exceptions to the opinion of the Court in this behalf, to have passed Lentz by, and to have proceeded with their other evidence; and if they lost the cause, then to have brought their writ of error. It will not do then, to say that they were forced by the decision of the Court, to call Lentz as their witness, because it was clearly at their option to do so or not as they pleased.

But seeing that there was no evidence given, when the receipt was first offered, tending to show that it was given, or had an existence before the trespass was alleged to have been committed, I am inclined to think that the Court was right in rejecting it; for to have admitted it to be read in evidence to the jury upon proof merely that John Lentz junior’s name, which was subscribed to it, was in his handwriting, would have been a pretty dangerous kind of testimony, especially as Lentz himself was still in being and present, who at least could be called to testify, how the fact was; whether it was given at the time of its date, and whether the facts contained in it were true or not. For any thing that appeared to the Court, when it was first offered, it might have been manufactured within the last hour immediately preceding, between Krider and Lentz, for the very purpose of being offered in evidence, without there being a word of truth in any thing set forth in it: this being the case, it appears to me that it was properly rejected when first offered.

We also think there is nothing in the third error assigned. As Lafferty, the plaintiff- below, was no party to the receipt, he was not estopped from gainsaying the truth of the matters alleged in it. It was competent therefore for him to show, if he could, that it was all a fiction, or a contrivance between Krider and Lentz, made for the purpose of defrauding him of his just rights: and this he was at liberty to show by the evidence of Lentz himself, as well as that of any other; for Lentz, not being a party to the suit, could be coerced at the instance of either party, to testify to any thing within his knowledge that was material to the issue. If the receipt was a misrepresentation of the matters set forth in it, no one could know it better than Lentz; and therefore as regarded knowledge on the subject, no body could be better qualified to testify: And even if it had been concocted for a fraudulent purpose, he would have been bound to have disclosed it, provided it were material to the issue: His being a party to the fraud, would not have excused him from giving evidence of it, as long as it were of such a nature as would not subject him to criminal punishment.

The authorities cited by the counsel for the plaintiffs in error, showing that written agreements or instruments cannot be altered, changed or contradicted, have not the least application: the rule laid down by them is only applicable to cases of controversies between the parties to the agreements, their representatives, and those claiming under them, but not to strangers; whose rights and interests would truly be in peril if the rule were to be extended to them, in such manner as to conclude them from giving evidence tending to contradict such agreements.

The fourth error embraces the answers of the Court to six points submitted on the trial by the counsel for the plaintiffs in error; in each of which they allege the Court erred. • • •

The first is, as to the effect of the deed given in evidence by the plaintiff, as evidence of his title to the locus in quo. The counsel of the plaintiffs in error, requested the Court to instruct the jury that it conveyed a fee simple to the defendant in error; but the Court entertaining a different opinion, told the jury that it did not pass a fee. In this I think the Court was mistaken; for the deed in express terms passes the land to Lafferty, his legal heirs and representatives, reserving a rent of fifteen dollars to be paid by the said LafFerty or Ms legal heirs, annually, to the said John Lentz, his heirs and assigns. The Court seems to have overlooked the words of inheritance in the deed, which certainly set forth the quantum, of estate intended to be conveyed; and to have taken up the idea that as the word “ let” is the only term used by the grantor in the deed, to part with his interest in the land, it was not sufficient to pass a fee simple, though words of inheritance were used in connection with it. Now it is well settled) that the construction of a deed must be as favourable and as near to the minds and apparent intent of the parties as it is possible it may be, and the law will permit: for benigne sunt fadeuda interprelationes chartarum, propter simplidtatem laicorum. Et verba intentioni, non e contra, debent inservire. Shep. Touch. 86, Co. Litt. 314, (b). The words in a deed are not the principal thing to be attended to, but the design and intention of the parties. 3 Atk. 135. Plowd. 160. And accordingly, if the intent of the parties appears, the law will construe the words in such sense as to perform that intent, rather than in any other sense. Plowd. 154. The Court below, seems to have thought that a conveyance of land in which the word “let,” alone, was used, to pass the interest intended to be conveyed, must necessarily be what is strictly and technically called a lease; which Sir Wm. Blackstone says must always be for a less time than the lessor hath in the premises. 2 Bl. Com. 317. And therefore something less than the fee simple, which was the most the grantor could have in the premises, passed by it. The usual words of operation, and as it is said, most apt in a lease, are demise, grant and to farm let.” Shep. Touch. 266. Co. Lit. 456. 2 Bl. Com. 317, 18: and the latin words, when leases were drawn in that language, were “ dimisi, concessi, et adfirmam tradidi.” 2 Bl. Com. 317, 18. The word “ let,” may therefore be considered a translation of “tradidi,” which is from trado, signifying, “ to deliver, give, or yield, to deliver up, to surrender, to resign, to put into one’s hands,” áse., and would seem to be quite as appropriate to show that it was the intention of the vendor or grantor, to part with and transfer a fee simple estate to the vendee or grantee, when accompanied with a limitation to the heirs generally of the latter, as the words, “ do” or “ dedi,” which are considered to be the most apt to be used in a deed of feoffment in fee, (2 Bl. Com. 310,) the most efficacious mode in some respects, of conveying land, known to the law. Shep. Touch. 204. Co. Lit. 9, a. 49, b. But it is certainly a great mistake to suppose that the words considered most apt for any particular species of conveyance, or indeed, that any of then), are at all necessary to the making thereof; for Lord Coke says, “whatever w’ord amounteth to a grant, may serve to make a lease.” Co. Lit. 45, b. The word “demise,” he also says, “is applied to an estate either in fee simple, fee tail, or for term of life, and so commonly is taken in many writs.” 2 Inst. 483. So the words bargain and sell/’ are not necessary to constitute a deed of bargain and sale, in order to pass a fee simple or less estate in land, under the statutes of uses and the statute of 27 Hen. 8. c. 16, requiring such deed to be enrolled within six months after its date, if the estate conveyed be a freehold ; other equivalent words will be sufficient to make land pass by way of bargain and sale; such as the words “ alien or grant,” “ demise and grant,” or if the owner of land “covenant to stand seized of his land to the use of another;” these will all amount to good bargains and sales, if made for a pecuniary consideration or one of pecuniary value, though ever so small, even a barleycorn. Shep. Touch. 222. 2 Inst. 672. Fox’s Case, (8 Co. 186.) Barker v. Keat, (1 Mod. 262, and 2 Mod. 249.) It is perfectly clear then, from the authorities oil this subject, as well as from the very structure of a deed conveying land, when the words “ enfeoff, give, grant, alien, bargain, sell, demise, let,” &c. or any of them are used, that it is not to express or to designate in the slightest degree, the quantity of estate intended to be conveyed, but merely for the purpose of passing from the seller to the purchaser, the estate therein described, by other words introduced specially for that end, giving to it, either the character of a fee simple, fee tail, term for life or lives, or for years: as for instance, if it be a fee simple that is intended to be transferred, the words “ his heirs,” must be inserted immediately after the name of the purchaser, for they and they alone, are sufficient to make it such according to Littleton, sec. 1. The word let,” in the deed in question, according to the rules of construction already mentioned, must also be considered sufficiently operative to pass the fee simple in the land, if from the whole tenor of the deed itself, it appears to have been the intention of the parties to use it for that purpose. That John Lentz intended to convey by this deed, some estate in the land to Daniel Lafferty cannot be doubted; and that the word “ let,” was used for the purpose of passing that estate or interest, whatever it was, admits of as little doubt, because it is the only word used to which any meaning of the kind can or ever has been affixed; and if the other words of the deed are to be regarded as they must, for in construing deeds or instruments of writing, effect must be given to every word used therein, if it can be done consistently with the other parts thereof; it is evident that the interest and estate, thereby conveyed, were not only intended to be enjoyed by Daniel Lafferty himself, but also by his heirs generally,.without any restriction or limitation whatever; which cannot be without giving to Lafferty a fee simple estate in the land,subject however to a fee-farm-rent, as it is termed by Littleton, sec. 216 and 217; or a perpetual rent, as it is called by Mr. Hargrave, in his note 5 to Co. Lit. 143, 4; and with us usually called a ground rent in fee. And indeed it appears to me that the deed in this case, as a conveyance of the land in fee, is about as perfect as the form that was adopted and prescribed by an act of the Assembly of the Province of Pennsylvania, two or three years after it was granted to William Penn, passed the IOth of March, 1683, which is in these words, to wit: “ A. B. of, &c. the day of from him and his heirs, grants his acre of meadow land, with all its appurtenances lying in, &c. toC. D. and his heirs, for the consideration of fifteen dollars yearly rent, to be paid to A. B. and his heirs and assigns, upon the day of In witness whereof, he sets his hand and seal.” See Hall and Sellers’ vol. of the Province L. appendix, 9. The word “ grant,” is used in the form thus prescribed, instead of the word “ let,” which at most is but a verbal difference, and cannot change the character of the deed as a conveyance of the land, or its effect..

The counsel for the plaintiff in error'also, in reference to this deed, requested the Court to instruct the jury, that if it were not a conveyance of the fee simple, but a mere lease of the land, it was void for uncertainty, on account of the time of its duration not being mentioned. The Court, however, declined giving such instruction to the jury; and on the contrary advised them, that taking the deed in connexion with the conduct of the parties, of which they had parol evidence given to them, they might consider it a lease from year to year: this is also complained of by the plaintiffs in error, as being incorrect; ' and no doubt it is so, as has already been shown in the opinion advanced, that a fee simple passed by the deed. If, however, the counsel had asked the Court to instruct the jury, that the deed was void for uncertainty, in not describing the land intended to be conveyed, so as to enable its precise location to be ascertained, there would have been more colour for it at least. But still I do not think that they would have been available: for notwithstanding this uncertainty, yet it was capable of being rendered certain by the subsequent act of the parties, if not by the act of the vendor alone. For instance, if one grant me three acres of wood toward the north side of his wood, this is a good grant and certain enough. Shep. Touch. Tit. Grant, page 250. So if one be seized of two acres of land, and he doth lease them for life, and grant the remainder of one of them, but doth not say which, to J. S.; in this case if J. S. makes his election, as to which he will have, the grant of the remainder to him will be good: or if a man having six horses in his stable, grants me one of them, without saying which, I may choose which I will have; and having made my election, and not before, the grant is good. See Shep. Touch. Tit. Grant, page 251. Perkins, sec. 74, 76. According to the principles of these authorities, the location of the land granted by the deed, was reduced to certainty afterwards, by the act of the parties in setting it offby metes and boundaries, and by the act of the grantee in taking possession of it in the lifetime of the grantor, by and with his consent.

But, still, notwithstanding the Court erred in their instruction to the jury as to the nature and effect of the deed, it becomes necessary to inquire, whether any injury could arise therefrom to the plaintiffs in error, for unless they may have been prejudiced by it, with the jury; it is not sufficient cause for reversing the judgment. The effect of the charge of the Court was to induce the jury to consider Lafferty as a tenant of the land only from year to year, in place of being, a tenant thereof in fee simple. Now I am utterly unable to perceive any benefit that the plaintiffs in error could have derived from a direction of the Court to the jury, that the deed passed a fee simple estate in the land to Lafferty, that they were not entitled to claim, in the case of its creating only a tenancy from year to year.

Admitting the distinction taken by the counsel for the plaintiffs in error, between a tenant in fee and a tenant from year to year, to exist in favour of a bona fide purchaser for a valuable consideration, still with what propriety could the counsel ask the Court to assume the fact, contrary as I conceive, to the testimony of the witnesses on both sides, that Krider was such a purchaser; and to instruct the jury that the title of Lafferty must, therefore, give way to him. This, had the Court done so, would not only in effect have been a withdrawal of the decision of a matter of fact from the jury, but would have been a decision of it by the Court, contrary to a body of evidence, which went to prove very clearly, that the fact was otherwise. Though Lafferty had never put his deed on record, yet it appears from the testimony of the witnesses of both parties, that he had been in the actual possession and enjoyment of the acre of land from the year 1816 to the time of the trial, and of course was in the actual possession thereof, at the time Krider became the purchaser. When Lafferty bought, it was meadow, and part of a larger tract of land, owned by John Lentz at the time. Lafferty, it seems, was a basket-maker; and immediately after his purchase, the ground being set apart from that owned by Lentz, he took possession of it, planted it with willows, for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it, and cutting them every year at the proper season. This visible change in the appearance and occupation of the ground could not wrell fail to attract the notice of the neighbourhood; and hence it would seem, that all the witnesses who had resided within the same, for any length of time, had become acquainted with Lafferty’s occupation of the ground. His possession then being sufficiently distinct to be notorious, was sufficient to put Krider upon his inquiry, as to the right, under which Lafferty held the possession of the land; and being sufficient for that purpose was good notice in equity. Smith v. Lowe, 1 Atk. 490. Sug. Vend. 743. This case, as presented by the evidence, is not like the case of Billington v. Welsh, (5 Binn. 129,) to which it has been compared by the counsel for the plaintiffs in error. Welsh had never had the fifty acres of land, which he alleged he bought of Turner, laid off by survey or separated in any way from the residue of Turner’s land. Turner had erected iron-works on his part of the land, and various dwelling-houses and other buildings for the accommodation of the persons in his employ, and for carrying on his business; with which the buildings and improvements of Welsh, to the eye of the spectator, were apparently connected, and seemingly formed a part thereof; so that there was no distinct unequivocal possession of the land by Welsh, as there has been here by Lafferty. Under such circumstances it is obvious, that it would have been erroneous on the part of the Court, and have been doing great injustice to Lafferty, to instruct the jury as requested by the counsel for the plaintiffs in error. They might have made a question as to what would amount to notice to Krider, of the right of Lafferty to the land; and whether such facts and circumstances had been proved as were equivalent to it; but it would seem as if they were unwilling to encounter it; and wished to have it assumed as being in favour of their clients. The charge of the Court then, in regard to the nature and effect of the deed, though erroneous, yet being more favourable to the plaintiffs in error, as we conceive, than their counsel had any right to claim, does not furnish a sufficient ground for reversing, the judgment.

As Lafferty acquired a fee simple estate in the acre of land, on which the trespass is alleged to have been committed, by the deed from Lentz to him, the questions embraced in the 3d and 4th points submitted by the counsel for the plaintiffs in error, to the Court below, were not material to the issue, and, therefore, require no further notice.

In regard to the 5th point: we think there was no ground whatever for asking the Court to instruct the jury, as was done by it, that in case they found for the plaintiff below, the damages ought to be merely nominal; as the trespass committed, if any, was unintentional. Krider, one of the plaintiffs in error, under whose authority the others acted, being notified expressly by Lafferty of his right to the land and the willows, persisted in going on with the trespass and taking the willows away, after they were cut, in place of tendering amends for the injury done. It was certainly not an unintentional trespass, but one of design, committed under colour of right, which has been attempted to be vindicated throughout: Lafferty, beside the loss of his property, must have been put to considerable expense in asserting and establishing his right: and I am, therefore, not satisfied, but it was a proper case enough, to be left by the Court to the jury, to decide whether damages beyond the value of the willows taken, and the injury done, if any, to the freehold, ought not to be given : nominal damages, merely, were out of the question; for it would have been error, as it appears to me, in the Court, to have suggested less than compensatory.

In regard to the sixth point; Lafferty being held to be the owner of the land, on which the willows grew and were cut; and being in the actual possession of it, there can be no question, but he had a right to allege in his declaration, in addition to the breaking and entering of his close, the cutting, taking and carrying away of the willows there found growing; and having alleged it, it was competent for him to prove it, if he could; and if he proved it, he was entitled to recover damages, equal to the full value of the willows at least, as well as for the injury done to the freehold; hence the Court committed no error in their answer to this point, that could injure the plaintiffs in error.

The judgment is affirmed.  