
    [Sunbury,
    June 30, 1823.]
    DIETRICK against MATEER and another.
    IN ERROR. ,
    The return of «served” by the sheriff on a writ of ejectment, is prima fade evidence of possession by the defendants, whether they be originally named in the writ or added by the sheriff.
    The land of one attainted of treason by the act of the legislature of Pennsylvania of 6th March, 1778, is not restored to him or his heirs, by the 6th article of the treaty of peace with Great Britain, though the state has not sold the land, nor even known its position.
    Ejectment in the Court of Common Pleas of Mifflin county, brought by Michael Dietrich, plaintiff below, against William Mateer and Robert Mateer, defendants below, to recover an undivided moiety of 159 acres of land. ,
    The plaintiff claimed title as devisee under the will of Christian Voght, who obtained a patent for the land in the year 1774. It appeared, however, that he ivas attainted of treason by the name of Christian Fonts, by an act of the legislature of Pennsylvania, passed on the 6th March, 1778, and on the 20th March, 1781, a proclamation was issued by the supreme executive council, by virtue of the 3d section of the said act, requiring Christian Voght, and others, to surrender on or before the 10th May, 1781, and he neglected to surrender himself under the same. But the plaintiff insisted, that as the state had never sold the land in consequence of this forfeiture, the legal estate was not divested, and that all the rights of Voght were restored by the' 6th article of the treaty of peace, between the United States and Great Britain, of the 3d September, 1783.
    On this point the court below charged in favour of the defendants. Another question raised in the court below was, whether the defendants were proved to be-in possession. They, were named in the original writ of ejectment which the sheriff returned “ served.” Parol evidence was gone into to prove the possession, but it left the point doubtful. The plaintiff contended, that the service of the writ as proved, and the general appearance of the defendants, and the plea of not guilty, were evidence of their possession. The court below charged, that the act of assembly concerning the service of writs of ejectment provides for cases where, thé sheriff finds others in possession than those named as defendants in the writ, and adds their names, when judgment goes by default against some, and the trial goes on as to others. But as here, all the defendants were originally named, the plaintiff must prove their possession.
    The plaintiff excepted to the charge of the court, and the jury found a verdict for the defendants, on which judgment was entered in their favour. ' -
    This case was partially argued by Hale and Carothers, for the plaintiff in error, and Potter and Burnside, contra; but the court having intimated a strong opinion, that the opinion of the court below was wrong as to the point of possession, but right as to the forfeiture, the counsel argued it no further, but requested the court to give their opinion on both points.
   The opinion of the court was delivered by

Gibson, J.

As long as the common law form of ejectment was in use, plaintiffs were often put to unnecessary inconvenience in proving defendants to be in possession of any part of the premises, which, where the land lay in a new settlement or remote from a thickly populated part of the country, was no easy matter. This occasioned many' non-suits and was found to be a great hardship to suitors. Why it was so, considering that the courts bad the whole machinery of the action under their controul, and might modify its operation so as to produce the best practical results, I am at a loss to discover. There would have been no hardship in refusing permission to take defence on the title without at the same time admitting the fact of possession: or if the defendant chose to disclaim title, and to rest on a denial of his being in possession, he should have been compelled to apprize the plaintiff that he relied on that alone. Our act of assembly which gives- the action of ejectment in its present form has remedied the inconvenience by declaring “ the return by the sheriff of having servéd the writ on the defendants, marked served by him,” shall be evidence of such defendants having been in actual possession. The return is however but prima facie evidence, and may be disproved. I cannot concur in the construction of the judge who tried the cause, and who restrained the operation of this clause to defendants who where not originally parties, but who being found in possession were added by the sheriff. It must be admitted however that a strong hypothetical reason in support of his opinion is* that as to persons not named in the writ, but actually found on the premises, it is expressly made the duty of the sheriff to ascertain the fact of their being in possession, whereas with the defendants originally named, he has no further concern than to serve them with process; and the return of an officer acting on oath ought, (it might be thought,) to be of more weight in regard to a matter of which it is his official duty to judge, than in regard to a matter about which he was not bound to inquire: and that the legislature may therefore have intended to distinguish between the two classes of defendants. But the words undoubtedly include both classes ; and as there was a' general mischief which loudly called for this v ery remedy, the construction also ought to be general. This provision has been thus construed in all the districts with which I have any acquaintance, and has in this particular been found to be extremely beneficial. On this exception then the judgment must be reversed.

All the remaining points resolve themselves into a single one. The plaintiff is the: devisee of a certain Christian Voght, who obtained a patent for the land in question in 1774,. hut who by the name of Christian Fonts, was attainted of treason, by the act of the 6th March, 1778, The variance however is immaterial, as he was called out under the 3d section of the act, fay proclamation of the supreme executive council, who had probably discovered the mistake of the name, and the forfeiture of his estate consummated by his default of rendering himself at the day specified: as is fully shown by the minutes of council given in evidence. The land it seems was not discovered by the executive agents, or in any way disposed of by the state, and the only consideration is whether the title of Voght was restored by the 6th article of the treaty of 1783, which declares: “That there shall be no further confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of, the part which he or they have taken in the present war; and that no person shall on that account suffer anyfur* iher loss or damage either in his person, liberty or property: and that those who may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecutions so commenced be discontinued.” I cannot see what application this has to the case of Voght, the confiscation of whose estate was complete before the ratification of the treaty which had, in such cases, no retro-active operation. The confiscation did not consist of turning theforfeited property into cash, and placing it in the public fisc or treasury, but in vesting the title in the state, the sale being a measure adapted to her own convenience: nor was this provision of the treaty designed to operate in cases where the forfeited property remained specifically in the possession of the state, but only to secure a general amnesty when proceedings with a view to attainder had not been begun, or having been begun had not been finished. In this part of the charge therefore there is no error.

Judgment reversed and a venire de novo awarded.  