
    Lessee of Robert Campbell against John Sproat and Alexander Snodgrass.
    It is no ground for a new trial, that the judge who tried the cause inclined that the weight of evidence was with the plaintiff/and the jury found for the defendants.
    Motion for a new trial. Mr. Justice Shippen reported the evidence which appeared before him on the trial, at Lancaster,'on the 30th May last, as follows:
    It was admitted that John Sproat, one of the defendants, was seized of the premises in question.
    
      Early in the morning of the 5th May 1788, he entered into a parol contract with Snodgrass the other defendant, for the sale of the property; and it was agreed between them that iool., part of the consideration money, should be paid down, to discharge a debt due from the vendor by judgment, to Qampbell, the lessor of the plaintiff, and the remainder by instalments of 40I. per annum; the price to be ascertained by arbitrators mutually to be chosen. Sproat was a weak man, but made this sale, with the consent of his wife and children, who were grown up. ■ Some kind of possession was delivered by Sproat to Snodgrass in pursuance hereof, by putting some of his young cattle into a field.
    The same morning, between 11 and 12 o’clock, Sproat, at *3931 *some distance from his own house, entered into a J written article of agreement with Campbell, whereby he ‘ ‘ sold and delivered ’ ’ the same lands to Campbell in consideration of 270I., whereof iool. was to be paid in hand, and the residue in payments of 40I. per ann. Certain privileges were reserved to Sproat, who covenanted to make him a deed, on the payment of the iool. No words of inheritance were expressed in this article, but some kind of possession was also delivered in pursuance thereof. The family of Sproat were 'averse' from this agreement, and much dissatisfied therewith.
    On the evening of the same day, Snodgrass, with full knowledge of what had passed in the morning between Sproat and Campbell, obtained a deed of the premises from Sproat and his wife, in consideration of 270I., which was regularly acknowleged and recorded. And certain privileges were also secured to Sproat by Snodgrass.
    Much parol evidence was given, tending to shew on the one hand, that the sale to Campbell was made with all imaginable fairness; and on the other hand, that he had attempted to take advantage of the necessities of Sproat, who was indebted to him by judgment, by procuring the sale of a great part of his woodland at an undervalue; and some circumstances were shewn tending to prove that he knew of the first parol contract with Snodgrass.
    Campbell tendered the. first payment to Sproat, on which he was to have his deed, and Snodgrass tendered to Campbell the monies due on his judgment, and paid off the bonds which became due on the sale.
    On the part of the plaintiff it was insisted, that the words of the article to Campbell, would operate as a deed of conveyance to him, being in the present tense, “do sell and “deliver.” But if it was to be considered merely as an agreement, that it was such a one whereupon a court of equity would decree a specific execution.
    On the first head, I thought it should be considered merely as an agreement, because such was evidently the intention of the parties, and it contained future executory acts, as the making of a conveyance, payment of money, &c. and because no words of inheritance were expressed therein, and which therefore would have vested Campbell with an estate for life only.
    The second point depended on the establishment of previous facts; as whether Campbell knew of the prior verbal sale to Snodgrass, or took any undue advantages of the necessities of Sproat, which I wholly submitted to the jury for their consideration.
    I inclined that the article should prevail against the parol sale, * in case the former had been executed with all [-*329 imaginable fairness; and the weight of evidence rather *- appeared to preponderate in favour of the plaintiff. But it was fairly left with the jury to determine the facts on the whole circumstances of the case, taken collectively. The jury found a verdict for the defendants.
    The counsel for the plaintiff now brought forward several depositions, tending to shew, that Sproat had expressed himself since the trial, that the sale to Campbell was perfectly fair, and without fraud or imposition; and therefore contended, he should under this new additional evidence, be let into the benefit of a new trial, on payment of costs.
    Messrs. Ingersoll and Montgomery pro quer.
    
    Messrs. Tilghman, C. Smith and Hopkins, pro def.
    
   But by the court.

Sproat appeared on the trial, to be a very weak man, and little stress is to be laid on his expressions. Much evidence was given on both sides, which was fairly stated, and left .wholly to the jury. They were the constitutional tribunal to judge of the parties intentions. Though the judge who tried the cause, inclined that the weight of the evidence was with the plaintiff, yet it is no ground for awarding a new trial, that the jury have differed from him in opinion. Were the rule otherwise, such motions would greatly multiply on us, and the greatest inconveniences would ensue. If the plaintiff is dissatisfied, he can institute a new ejectment, and bring forward all his proofs to a second jury. Vide 5 Burr. 3805. 1 Wils. 22. 3 Stra. 1143. 12 Mod. 439. 2 Wils. 249. Andr. 325,-328. 5 Bac. 346. 1 Burr. 397. 3 Bl. Com. 392. Eofft 147, 391, 529.

Judgment for the defendants.  