
    Galbraith and others against Black.
    In Error.
    
      May.
    
    The Court toln^tractThe jury to find for evidence. It is merely their duty to inform Jíiw leaving: the decision of tcf them
    The general [h/labour of ® the ase of the the\btherper,mit hia aon *° improve anu settle on a tract of land for his own use and benefit, his title is the same as if he had been of age when he commenced his improvement.
    THIS was an ejectment brought in the Court of Common Pleas of Dauphin county, by James Black, the defendant in error, against Joseph Galbraith and others, heirs of . one Bartram Galbraith, to recover a tract of land in their session.
    To establish his title, the plaintiff gave in evidence a * rant to himself, dated the 27th November, 1801, for 400 acres, including his improvement; interest to commence May 1772 ; a receipt bearing the same date for the purchase money, amounting to forty pounds ; a survey of 439 acres on the 14th December, 1801, and a decision of the board of property in his favour, on the 10th April, 1802, on a caveat entered by Bartram Galbraith, on the 24th December, 1801.
    The defendants then offered the deposition of one John 1 J 
      
      Hatfield, filed of record in the office of the secretary of the land office, and at the same time offered to prove, that Hatfield had long since been dead. This testimony was objscte[j t0 the plaintiff’s counsel, and over-ruled by the Court. The defendants also offered in evidence a patent, bearing date April 7th, 1810, granted to Jacob Baker, upon a warrant to James Eagan, dated December 2d, 1774, which, on being objected to,- was likewise rejected by the Court, who sealed a bill of exceptions on both points. Neither of these papers, however, came up with the record.
    
      Where a Judge has expi-essed himself in such a manner as to be understood by the jury, this Court will not reverse the judgment on critical objections to his language.
    Tl e record of proceedings before two justices and twelve freeholders under the landlord and tenant law, is not conclusive evidence of the facts found by their inquisition; but the truth of them may be traversed in an ejectment brought by the tenant to try the title.
    
      The title upon which the defendants relied, was a warrant to Bartram Galbraith for 300 acres, dated December 2d, 1774; a warrant bearing the same date, and for the same, quantity of land, to James Eagan; a survey on Eagan’s warrant of 498 acres 42 perches, on February 29th, 1775 ; a deed from Eagan to Bartram Galbraith, dated December 30th, 1774; a lease from Galbraith to Thomas Black, the father of the plaintiff, dated March 29th, 1782, demising the land for the improvement of the estate, and payment of the taxes from year to year, at the will of the lessor, and the record of a proceeding under the landlord and tenant law, commenced on the 26th April, 1802, by Bartram Galbraith, landlord, against James Black, son and heir of Thomas Black, tenant, finding, that on the 29th March, 1782, Bartram Galbraith possessed, and on the same day demised, .the premises to Thomas Black, to hold on the terms above stated, and that Thomas Black died, and his son James entered and held the premises until the 29th March, 1801, as tenant on the same terms as his father.
    The plaintiffs’ counsel then offered to prove, that James Black was residing on the lands in dispute, before the date of Galbraith’s and Eagan’s warrants; that when Galbraith attempted to make a survey, he was opposed, after he had run one or two lines, by James Black, and desisted from the attempt, and that James Black continued to reside on the said land and improvement from May, 1771, making large and valuable improvements, unforbidden by Galbraith, and having no knowledge during that time of any lease to Thomas Black, or of any pretence of his being continued as the tenant of Galbraith on the land in dispute. This evidence was objected to by the defendant’s counsel, but the Court admitted it, and sealed a bill of exceptions,
    
      'When about to charge the jury, the Court were requested by the counsel for the defendants to instruct them oh ten points which were stated. The second, third, fourth, sixth, seventh, eighth and ninth points were embraced by the first, the substance of which was, that as the plaintiff claimed the land under a settlement made by his father, who, in 1782, became the tenant of Bartram Galbraith, and as he continued from the time of his father’s death to reside thereon, under the said lease, until the premises were recovered in 1802, under the landlord and tenant law, he was not entitled to recover. The Court affirmed the law involved in these positions, but gave no opinion as to the facts, leaving it entirely to the jury to decide whether or not the plaintiff resided on the land in the character of tenant.
    The fifth point on which the Court was requested to charge was, that the record of the proceedings under the landlord and tenant law, was final and conclusive as to all the facts therein decided. The charge of the Court was, that although the record was evidence of those facts, it was not conclusive, and it was competent to the plaintiff, notwithstanding, to shew, that he settled and improved the land, held possession of it, and extended his improvements in his own right, in pursuance of his own improvement and settlement, and not under his father or Bartram Galbraith.
    
    On the tenth point, which was, that the labour of a son under twenty-one years of age, will enure to the use.of the father, the Court instructed the jury, that if a father permits a minor son to work for his own use and benefit, and the son accordingly improves and settles on a tract of land, his title is the same as if he were of age at the time of improving, settling, &c.
    The opinion of the Court on these points was filed at the request of the defendant’s counsel, and together with the bills of exceptions above-mentioned, was returned with the record into this Court, where the questions arising out of them were argued by
    
      Elder and Hopkins, for the plaintiffs in error,
    who cited Boggs v. Black.
      
       Phill. Ev. 218, 219. 222, 223. 226, 227. 234. 242. 254. 259. 262. 3 Bl. Com. 24. Moses v. M‘Fer~ 
      te. Act of 26th March, 1785. Act of 21st March, 1772, sect. 12. 
      Jackson v. Harder.
      
       Galloway v. Ogle.
      
       Hallan v. Earl of ThanetS 
      
       Coshy v. Brown
      
       Richard- ^ gtewartf
      
    
    
      Fisher and Montgomery, for the defendant in error,
    cited, Rawlyn’s case.
      Co. Litt. 48. a. Messinger v. Kbitner.
      
       Snyder v. Snyder.
      
       Ferrer’s case.
      Kitchen v. Campbell.
      Phill. Ev. 222, 236. 248. ittyer v. Atwater.
      
       Manny v. Harris. 5 Bac. 428.
    
      
       1 Minn. 333.
    
    
      
       2 Burr. 1009.
    
    
      
      
         Purd. Big. 421.
    
    
      
      
        Purd. Big. 580.
    
    
      
      
         4 Johns. Pep. 202. 210.
    
    
      
       2 Binn. 468.
    
    
      
      
         2 Bl Rep. U59.
    
    
      
      
         2 Binn. 124.
    
    
      
       4 Binn. 198,
    
    
      
       4 Co. 54. b.
      
    
    
      
      
         4 Binn. 97.
      
    
    
      
       6 Binn. 490.
    
    
      
       6 Co. 7.
      
    
    
      
      
         3 Wils. 308.
    
    
      
       4 Bay. 431.
    
    
      
      
         2 Johns. Rep. 24.
    
   Tilghman C. J.

delivered the opinion of himself and Gibson J.; Duncan J. having been concerned in the case as counsel, did not sit.

On the trial of this cause in the Court of Common Pleas of Dauphin county, the Court rejected the deposition of John Hatfield, and a patent to Jacob Baker, offered in evidence by the defendants, on which an exception was taken to their opinion, but the papers rejected have not come up with the record. In this situation we can form no judgment. I shall, therefore, say nothing as to that exception. But there are other exceptions, concerning which, enough appears on the record, to enable us to decide. After the evidence on both sides was closed, the counsel for the defendants requested the Court to instruct the jury on ten points, which are stated. On the 1st, 2d, 3d, 4th, 6th, 7th, 8th, and 9th, points, the Court directed the jury in the manner requested by the defendants’ counsel, provided the jury should agree with the counsel, in opinion, as to the facts, but the decision of these facts was left to the jury. Of course the law was to depend on the fact. The Court have certainly a right to direct in this manner, and it is most prudent to do so, for the facts cannot be withdrawn from the jury. The defendant’s counsel complain, that the jury were not directed to find for the defendant on the evidence; but I think they complain without cause ; for, however strong the evidence may be on one side, it is not for the Court to decide it, and they discharge their duty when they instruct the jury as to the law, leaving the facts to them. The 10th point proposed to the Court was, that the labour of the son of Thomas'Black, being an infant, enured to the use of his father. Instead of laying down this broad position, the Court told the jury, “ that if a father permits his minor son to work for himself, for his own use and benefit, and the son, accordingly, improves and settles on a tract of land, his title is the same as if he was of age at the time of improving, settling,” &c. This is all very correct. And, although it was not expressly said, that if the father did not give such permission, the labour of his son should enure to his (the father’s) use, yet the meaning of the Court is sufficiently apparent. The general rule is, that the work of the son, is for the use of the father, and the case put by the Court, is an exception to the rule. I think the charge could not have been misapprehended by the jury, and a judgment should not be reversed on such critical objections to the language of the Judge. But the point of greatest difficulty was the 5th, and on that the Court gave a decided opinion, which was the subject of a special exception. The defendant had given in evidence, the record of certain proceedings under the landlord and tenant act, whereby it was found by twelve freeholders, assisted by two justices, that the plaintiff had held the land in contest for a certain period, under a lease from Bartram Galbraith deceased. In opposition to this verdict, the plaintiff offered to prove, that he held and made valuable improvements on this land, in his own right, and not under a lease from the said Bartram Galbraith. The defendants objected to the evidence, and contended, that the plaintiff was estopped by the inquisition. But the Court were of a different opinion, and admitted the evidence, directing the jury, that the record of the proceedings before the justices, was legal, but not conclusive evidence for the defendants.

The object of the proceedings under the landlord and tenant act, is to obtain possession for the landlord; and in order to effect this, they are summary. The jury are to appear within four days after issuing the summons, and although •the tenant is also summoned, and has an opportunity of being heard, yet it cannot be supposed, that the matter in dispute can be decided in a manner as satisfactory as in a Court of justice.' If the landlord obtains his possession, the object of the law is answered, and it does not appear, that justice would be promoted, by extending the efficacy of the proceedings any further. Should an action afterwards be brought by the tenant to try the title, the truth might be better ascertained, by the evidence produced on the trial, without considering the tenant as estopped by the proceedings before the justices. But it is.insisted on, by the counsel for the defendants, that a matter which has been once tried and decided, shall not be controverted again between the same parties. That the rule is such, when trials are had in the regular courts of justice, is not to be denied. But it would be going too far, to extend it universally to summary proceedings. On a fieri facias and scire facias against an executor, although it be found by the jury, that the executor hath committed a devastavit, yet this finding may be traversed. And.in general, inquests of office are traversable. But this is not an inquest of office; the proceedings are at the instance of the landlord, and the tenant is summoned. If the act of assembly had directed, that an issue should be joined between the parties, and that the verdict should be conclusive, I should have thought, that it could never afterwards be controverted between those parties. But the proceedings are not so. If the jury find the allegations of the landlord to be true, viz. that the lease was made, that it is fully ended, and that demand was made of the tenant to leave the premises, three •months before the landlord’s application to the justices, then the justices are to make a record of such finding, &c. But, suppose the jury do not find these things, what is to be done? No record is directed to be made in such cases, and consequently no judgment is given for the tenant, nor can he in any subsequent proceedings, avail himself of the opinion of the jury. According to the construction then contended for by the defendants, the act of assembly would work very unequally, and to the manifest injury of the tenant. If the landlord obtains a verdict, he not only gets the possession, but in an action brought afterwards to try the title, the tenant is estopped ; he can deny no fact found by the jury ; but if the opinion of the jury should be in favour of the tenant, the landlord is not estopped, and the tenant has no other advantage than the retaining of the possession. This is, a very strong circumstance, distinguishing the present .case from those in which the parties are for ever concluded, by a verdiet on the same point; and quite sufficient in my opinion to form an exception from the general rule. I am for giving the act of assembly complete operation to effect its purpose ; the restitution of possession to the landlord. But there I would stop. The end of the law is answered, and it would be inconvenient to carry it farther. I am, therefore, of opinion, that the Court of Common Pleas decided rightly, and their judgment should be affirmed.

Judgment affirmed,  