
    *Isaac Austin against the Trustees of the University of Pennsylvania.
    The act of assembly vesting Isaac Austin -with a messuage, &c. passed 6th August 1784, adjudged to be unconstitutional
    Case for the use and occupation of one messuage, one kitchen, two stores, one ferry landing, and lot of ground, situate on the north side of Mulberry street, in the city of Philadelphia, for the space of nine years, five months, and ten days, on a quantum valebant. The defendants pleaded non assiimpserunt and payment, with leave to give the special matters in evidence.
    The cause came on to trial in January term 1791, when the jury found a special verdict, in hcsc verba:
    
    “ The jurors find, that the premises stated in the-declara“tion, were forfeited to the commonwealth by the attainder “of William Austin, and were exposed to public sale by the “agents for forfeited estates, under the direction of the Su“preme Executive Council in August 1780, and that at such ‘ ‘ sale the plaintiff was the highest bidder, but that he did “not comply with the terms of the sale, nor pay the money ‘ ‘ bid for the same.
    ‘ ‘ That the premises were again exposed to sale by the said “agents on the 6th of November 1780, and that the said “plaintiff was again the highest bidder, and that the same “ was struck off to him for 90,550b, but that he did not com“ply with nor pay the money bid within the time prescribed “by the terms of sale; that afterwards in December 1780, he “offered to the Supreme Executive Council to make pay- “ meut by releasing a certain debt due to him and John Barry “as administrators, &c. from the commonwealth, (having “verbal authority from the said John Barry and Reynold ‘ ‘ Keen so to do) and that he either offered to pay the residue, “ or to give security for the payment thereof, which the said ‘ ‘ council refused to accept.
    “That afterwards on the 26th December 1780, the Supreme 1 ‘ Executive Council reserved and appropriated the said prem- ‘ ‘ ises. [Prout resolve. ]
    “That on the 28th March 1781, a list of the estates re-‘1 served and appropriated to the defendants was laid before ‘ ‘ the general assembly by the Supreme Executive Council, “agreeably to the directions of the act of assembly establish- “ ing the University, passed the 27th November 1779. “ [Prout act and list.]
    ‘ ‘ That the general assembly, by act passed the 22d of September 1785, confirmed the said premises to the defendants. “ [Prout act.]
    “That on the 10th of April 1781, the house of assembly ‘ ‘ resolved as per resolution of that date.
    *2611 *“ That on the nth of March 1783, the house of ‘ ‘ assembly resolved as per resolution of that date.
    “That on the 5th of February 1784, the said house voted, “that they disapprove of the aforesaid resolution. [Prout “vote.]
    “That on the 6th of August 1784, an act of assembly was ‘ ‘ passed, vesting the premises in the plaintiff. [Prout act. ]
    “That on the 9th of November, the said plaintiff paid the “sum of 400I. to the treasurer of the state, and the sum of “3.T6I. 3s. 3j{d. on the 12th of January 1785.
    “That on the 18th of February 1785, the last mentioned ‘ ‘ act was repealed. [Prout act. ]
    ‘ ‘ If upon the above facts the court shall be of opinion, that “ a title to the premises was and is vested in the said plain- “ tiff, then the jury find for the plaintiff, and assess damages “ to 395b. 8s. 4d. with sixpence costs; or otherwise, they find ‘1 for the defendants. ’ ’
    
      Cited in 1 Binn., 422 ; 12 S. & R., 355; 12 Pa., 356; 67 Pa., 487.
   Yeates J.

The chief justice and Mr. Justice Shippen decline to give any opinion on the special verdict, by reason of their being trustees of the University. Mr. Justice Bradford feels the same delicacy, from being formerly retained as counsel on the part of the trustees. It falls therefore to my share to deliver the judgment of the court, though I should have been better pleased to have first heard the arguments of counsel on the special verdict.

There can be no question in this, that the plaintiff’s merely buying the lot of ground and premises, formerly the property of his brother William Austin, from the agents of forfeited estates, did not vest the title thereto in him, without complying with the terms of the purchase. The special verdict states, that he purchased in August 1780, and also' on the 6th of November 1780, but did not comply.with the terms of either sale, except so far as is stated in the last sale, which certainly was no performance of the conditions under which he bought. In both instances, under the act of the 6th March 1778, he forfeited to the state one-fourth part of the consideration monies bid.

The plaintiff’s claim then must be chiefly founded on the act of the 6th August 1784, which it is said vested the real estate of his brother in him. But the act was repealed previous to the institution of the suit, by a law enacted on the 18th February 1785, for the reasons particularly enumerated in the preamble thereof, and I have no difficulty in declaring for the same reasons, that the former act was unconstitutional. It is however repealed by the same authority which enacted it, and therefore the plaintiff’s title cannot be assisted thereby.

*If it be said that the repealing act affected a right r*oft2 vested in the plaintiff under the act of 6th August L 1784, it may readily receive this answer, that the act of 18th February 1785, only put matters in their former situation, as they were previous to the passing of both the laws, and left the decision of the plaintiff’s claim to the judicial authority.

On the whole I am of opinion, there appeared a manifest defect of title on the part of the plaintiff whereon to ground his action, and that judgment be entered for the defendants.  