
    Smith against Thompson and others.
    In Error.
    THIS was a writ of error to the Common Pleas of Westmoreland county, in an ejectment brought by Thompson and others, the plaintiffs below, against Smith, to May Term, 1813, for 67 acres and 66 perches ofdand'in that county.
    It appeared on the trial, that the plaintiffs in this ejectment \vere the children and heirs of Archibald Lochrey deceased, who made a settlement on the land in dispute in the year 1770, §nd continued there till 1781, when he went down the Ohio, as colonel of militia, and was killed by the-'Indians. He left a widow and two children: Jane, born in 1777, who married during her infancy S. Thompson, one of the plaintiffs : and Betsy, born in 1779, who married dtiring her infancy David M'-Brier, another of the plaintiffs. The widow with her children continued to live on the a~"d. About two years after the death of Lochrey she mzxt^d'John Guthrie; and they all remained on the land until the spring of the year 1789, when they removed, and never afterwards returned to it. On the petition of the administrators with the will annexed, of Archibald Lochrey, the Orphan’s Court ordered a sale of this land; but it did not appear that a sale was made.
    The defendant, George Smith, claimed under an application entered in his name, January 23d, 1789: a warrant to himself dated 15th July, 1789: and a survey of 67 acres and 66 perches, 2d August, 1789. His application and warrant called for an improvement, and interest was to run from the year 1779. The defendant had a dispute with Ephraim Blaine before the board of property: in the course of which a survey was made by John Moore, by way of illustration of the title, by order of the board. In the spring of the year 1789, the defendant took possession, and had held it by his tenants ever since: but at the time of the commencement of this action he did not reside on the premises. The defendant then requested the Court to declare their opinion to the jury on the following points :
    
      When a question is distinctly proposed to the Court,the party proposing it is entitled to a distinct answer, and it is error to refuse or evade it.
    
      1. Inasmuch as it is proved, that John Guthrié who intermarried with the widow of Archibald Lochrey, did, in the spring of 1789, remove from the land in dispute with his wife and the two daughters of Archibald Lochrey deceased, and that neither they, nor either of them, have returned to the land since, is not the claim of the plaintiffs barred by the 5th section of the act of limitations, passed 22d March, 1785 ?
    2. Is there such privity of title arid estate proved, between the heirs of Archibald Lochrey and George Smith as prevents the operation of the act of limitations above mentioned ?
    3. Is the survey made by John Moore under the order of the board of property, in the case of Ephraim Blaine, such a survey as will prevent the operation of the act above mentioned in the case of the present plaintiffs ?
    
      4. Do not the 2d, 3d, and 4th sections of the act above mentioned bar the claim of the present plaintiffs ?
    5. From the testimony exhibited in this cause, is there' not in law such an abandonment of the land in question by the present plaintiffs, and those under whom they claim, as will prevent their recovery in this suit, independently of the act of limitations ?
    6. .From the facts given in evidence,, had the defendant, at the time of the institution-of the present suit, such a possession of the land in question as would enable the plaintiffs to bring this suit against him ?
    7. Is it not necessary, that the plaintiffs shew a legal survey of their claim before they can recover in this suit.
    The Court below, (the president being absent) stated to the jury in their charge, that they would give their opinion on ihe second of these questions, which they conceived would decide the merits of the cause. They then answered the second question by stating, that they believed there was such a privity: but left it to the-jury to decide, whether George Smith had bottomed his title on the title of Archibald Lochrey. If they believed there was a privity between George Smith and the heirs of Archibald Lochrey, the statute would not apply; otherwise it would. To this charge' the defendant excepted, and the Court sealed a bill of exceptions.
    
      ■ Errors were assigned in this Court, and argued .by,Forward and Campbell for the plaintiffs in error,' and Alexander and Nosier contra. •
   Tilghman C. J.

(After stating the evidfence.) On, the evidence the defendant’s counsel prayed the opinion of the Court as to seven particulars which appear on ,the recprd. The Court did not answer the questions severally, but gave an answer to the second question which they considered as sufficient for the whole. I am of a different opinion. The sixth question is entirely untouched. But the great objection is, that Ahe answer, such as it is, is couched in such general and equivocal terms, as would tend rather to mislead than instruct the jury. The Court say, that if the jury should be of opinion, that the plaintiff bottomed his title on the title of A. Lochrey, the act of limitations would not apply to the case. Now what is meant by bottoming his title? The title might have been bottomed in various ways; and the question on the act of limitations might depend on the particular way in which it was bottomed. For instance, the plaintiff might have contracted with the heirs of Lochrey to take out a warrant for their benefit: or he might have entered on the vacant possession, with an intent to procure' a title adverse to Lochrey7s children, and have continued to hold and act in all respects, and at all times, openly and avowedly in opposition to them. In these two cases the operation of law might have been different. When a question is- distinctly proposed to the Court, the party proposing it is entitled to a distinct answer, and it is error to refuse or evade it. This is a rule of very great importance. The security of property depends on it. For in our mixed form of trial, where the jury, under the Court’s direction, give a verdict decisive of law and facts, there will be no law unless it can be separated from the fact, and the Court’s opinion obtained, in such a manner as to bring it before a superior tribunal. The defendant’s counsel in this case did all that could be done. They proposed clearly the several points on which they desired the Court’s opinion. That opinion has either not been given, or given so obscurely as to be of no benefit. It is impossible for us to say, what the verdict xoould have been, had the law been clearly and properly laid down: or what it ought to have been; for we are not sufficiently apprised of the facts. The judgment must, therefore, be reversed, and a venire facias de novo awarded,

Yeates J. absent.

Brackenridge J. concurred.

Judgment reversed, and a venire facias de novo awarded.  