
    [Chambersburg,
    October 31, 1826.]
    FULWEILER against BAUGHER and another.
    IN ERROR.
    In suits on b'onds, which were the consideration money of land sold, the parties agreed by writing filed in the cause, that the title was defective for part of the land, that the plaintiff' was to deliver a good title, and that if a good title should be delivered, the defendant claimed a deduction of various items stated, and that the court should determine the legality of these claims, and auditors should settle the amount: held, that the court, after deciding that the plaintiff could not give a good title for two sevenths of the portion of the land in question, might set aside the agreement so far as to order a'trial, and that their decision on the point was not a subject of a writ of error.
    Payment of taxes due by the prior owner is a subject of deduction from the purchase money, if a lien; but not payment to a patentee for the use of a hopper boy, &c. to a millj which were on it when bought, if the patent were void. Where the title of a part of the land, for the purchase money of which the suit is brought is defective, evidence of the situation of a mill-dam, race, &c. on the property, is admissible to show the relative value of the part obtained, compared with that which is lost.
    Married women may, jointly with their husbands, give a power of attorney to convey land in Pennsylvania, and, if duly acknowledged, the conveyance under it would be valid.
    Ten years from the date of the power does not raise a presumption of the death of the principal, at the time when an attorney executes a conveyance under such power, where there is no removal of the principal from his former abode.
    An act done by an attorney is valid, if it appears he did it as attorney, whether it be done in the principal’s name or in the attorney’s, as such.
    If the warrantor, on notice by the vendee to come in and defend the title, neglects to do so, the verdict is conclusive against him. If the vendee does not give notice, but defends, he cannot recover his counsel fees, and his own expenses, unless in case of absence of the warrantor, or fraud.
    Writ of error to the Court of Common Pleas of Cumberland county.
    This suit, with five others, was brought by Daniel Baugher and John Crumbaugh, executors of Samuel Baugher, deceased, who was assignee of Peter Ikes, who was assignee of Philip Klinger, against Abraham, Fulweiler, surviving obligor in a bond dated the 8th of June, 1807, for the payment of one hundred pounds on the 30th of August, 1808. Plea, payment and nil debet: also a special plea, stating the failure of consideration. Replication, that he does owe, non solvit and issues.
    On the 9th of February, 1820, an agreement was entered into by the parties, and filed of record, viz:—
    The above suits are on bonds, which were part of the consideration of a tract of land bought by the defendant from Philip Klinger in 1807. The deed from Klinger contains a general warranty. For about seventy-eight acres of the best part of the said tract, Klinger had not a good title, and the title for the same is not now in the defendant. About eighteen or tw’enty acres of the said seventy-eight acres are cleared. Partial payments have been made on some of the bonds. Plaintiffs are to deliver to defendant a good title for the land mentioned.in the deed from Klinger. The title to be approved of by the court. If a good title be delivered as above, the defendant then claims a deduction from the said bonds for the following reasons, and on the following accounts:—
    1. The expenses incurred by defendant in and relative to the ejectment brought against him by Mark Halfpenny and others, and now pending. (See post.}
    
    
      2. The expenses incurred by the defendant in and relative to the said six suits, and the costs, (other than the plaintiffs’ bills of costs,) on the same.
    3. The defendant paid to Oliver Evans and Evan Evans, or their agent, one hundred and twenty dollars for patent rights to a hopper boy and flour press, which were in the mill on the said lands when he bought the same from Klinger. He also paid taxes, (about five dollars and thirty cents,) on the said land, which were due before he bought the same.
    4. The defendant, for want of a good title, was deprived of opportunities of selling the said land, when advantageous sales might have been made. He was prevented also from improving the land, as he would have done if the title had been indisputable. For these he claims damages, and a deduction from the said bonds.
    The defendant alleges that he was ready and willing to pay the said bonds, when due, without suit, if a good title had been given to him: and he desires now to be placed in the same or as good a situation as he would have been, provided Klinger had given him a good title at the time of executing the deed. If interest be counted on the bonds, he claims interest on his expenses, and on the amount of damage sustained by him from time to time.
    It is agreed, that the court determine whether all, or any, and which of the said grounds of deduction claimed by the defendant are, (if true,) legal off-sets, or ought in law to be deducted from the amount of the said bonds. The amount of the said off-sets or deductions to be ascertained and reported by three auditors, or a majority of them, to be appointed, by the court. The said auditors to meet and proceed ex parte, on ten days’ notice. The report, when approved of, to be final, and the balance to be paid by the defendant.
    The total amount to be deducted, according to the said report, approved of as aforesaid, is to be deducted from the first bond; and if the sum reported exceeds the sum due on that bond, then the remainder to be deducted from the second, and so on.
    The plaintiffs are to pay their own bills of costs in the said suits. Each party is to pay half of the auditors and prothonotary’s fees, arising on this agreement or reference,—the plaintiffs to pay their own bill of costs arising on this agreement or reference.
    The defendant’s bill of costs and expenses on this agreement or reference, and accruing therefrom, to be estimated as damages, and included in No. 2, of the damages claimed by him; and subject, like that No., to the opinion of the court.
    Dated and filed 9th of February, 1820.
    The following was filed the 25th of March, 1824.
    
      By the Court. The court being of opinion, on argument, that the title now tendered is defective, at least so far as regards the title of Lydia Hallowell, and Jinn Brown, the agreement of the parties cannot now be carried into effect further. And, on motion of the plaintiffs, the agreement is now set aside, because it has become inoperative, cannot be carried into effect, and to suffer it to remain would be a perpetual bar to the plaintiffs’ further proceeding, which would be manifestly unjust.
    This opinion was filed, at the request of the defendant, who oppose the setting aside of the agreement.
    And now, to wit, the 17th of November, 1824, this cause being ordered on for trial, the defendant objected to any jury being sworn, and produced and read the agreement of the parties, filed of record the 9th of February, 1820.
    The court overruled the said objection and ordered a jury to be called and sworn,—to which the defendant excepted.
    On the trial, the defendant offered in evidence a receipt for taxes assessed on one of the tracts included in the sale to the defendant, whilst it was unseated; and also receipts of Oliver Evans for money paid him on his claim as patentee, to the right of a hopper boy and flour press in the mill, when the property was sold. This evidence the plaintiffs objected to, and the court rejected it and sealed a bill of exceptions.
    There was a grist mill situated on the property sold to the defendant, and the defendant offered to prove the situation of the mill, the dam, race, &c., and that by reason thereof the mill was of little value. This evidence the plaintiffs objected to, and the court overruled it and sealed a bill of exceptions.
    The title to the seventy-eight acres was traced back to a certain Thomas Bye, who, on the 7th of March, 1808, conveyed to his seven daughters. On the 1st of June, 1812, these daughters, and the husbands of such of them,as were married, joined in a power of attorney to three persons (one of whom was Jl. Brown,) or any one of them, to sell and convey this tract. Brown conveyed to William Bamsey on the 10th of March, 1823. He signed the names of the principals to the deeds and affixed their seals, and, among others, that of his own wife, Jinn Brown. The name of one other of them, Lydia Jlallowell, a married woman, was interlined wherever it occurred in the acknowledgment of the power. The power was duly acknowledged by the principals, and the acknowledgment of the married daughters was in the form prescribed by the act of assembly. After Broion. had executed the deed to Bamsey for his principals, he acknowledged it as attorney for the said, (naming all his principals,) to be his act and deed. On the 23d of March, 1824, William Ramsey conveyed the seventy-eight acres in question to the plaintiff. This evidence was objected to by the defendant and admitted, and the defendant excepted.
    The next bill of exceptions by the defendant was to the court’s rejecting evidence of the expense of the defendant in certain ejectments brought for the recovery of the seventy-eight acres, one of which was discontinued immediately before the trial of this cause, and after Ramsey made his release to defendant.
    The defendant then proposed the following points, for the instruction of the court to the jury:—•
    1. That unless the defendant has a good and indubitable title in law and equity for all the property, for the price whereof the bond in question was given, he has a good defence in this suit to the amount of the full value of the deficiency, and the damage he may have sustained by reason of the defect.
    
      Answer. As the defence is of an equitable and not a legal kind: as the defendant, if the evidence is true, took possession according to the terms of his purchase, and has held the same ever since, except as to sixty acres, which he sold for a larger sum of money,' including the mill, and, as he has thus put it out of his power to rescind the contract, we say that a good equitable title would avoid the defendant’s defence. If he has not got either an equitable or legal title to all the property for the price of which the bond in question was given, he has a good defence in this suit to the amount of the value of any deficiency, and such damages as he may have sustained by reason of the defect.
    2. That Philip Klinger could acquire no right to the land in dispute by a settlement and warrant subsequent to the warrant and survey of Halfpenny.
    
    
      Answer. Klinger could acquire a right to the land in dispute by a settlement and warrant subsequent to the warrant and survey of H, twenty-one years’ actual adverse possession would give such right.
    3. That the warrant of K. is void, unless he actually and bona fide resided on the land at the time.
    
      Answer. The warrant of K. would be void, if he had no actual residence upon it at the time.
    4. That the agreement filed in this cause, admits that the defendant, at its date, had no title to the seventy-eight acres in dispute, and unless the plaintiffs have proved that they have now given him a good legal and equitable title to the same in severalty, the defendant has a good defence, as stated in the first point.
    
      Answer. The agreement filed in this cause was read without opposition, and it admits that the defendant, at its date, had not a good title to the seventy-eight acres in dispute.
    5. That the married woman, mentioned in the alleged power of attorney of the 1st of June, 1812, could give no valid authority to their husbands to sell their real estate.
    
      Answer. This position is true, as stated.
    6. That the legal presumption is, that the interlineations in the alleged acknowledgment of the said power of attorney were made after its attestation; and, unless this presumption is rebutted and removed by other evidence, the whole is void, and of no effect, and no title depending on it can be good.
    
      Answer. This position is true, as stated.
    7. That if no proof has been given, to satisfy the jury of the continuance of the liv.es of all or any of the constituents in the said power, within seven years before the date of the deed of the 10th of March, 1823, they shall be presumed to be dead, and the said deed can therefore convey no title.
    
      Answer. If the attorney was not advised of the death of any of the constituents, and executed the deed legally and bona fide, the presumption of death does not arise so as to defeat the deed. We see nothing in the evidence, authorizing the court to state that there is a legal presumption of death. If the defendant relied upon it, he would have been permitted to prove it.
    8. Aaron Eastburn, Thomas Hallowell, and Abraham, Brown had but life estates in the land in question, and could not convey the same in fee simple.
    
      Answer. This position is true, as stated.
    9. That the deed of the 10th of March, 1823, is not proved or acknowledged in such way as to vest any title, but the life estate of Abraham Brown, in William Ramsey.
    
    
      Answer. We cannot say, that in law the deed of the 10th of March, 1823, only vests the life estate of Abraham Brown in William Ramsey.
    
    10. That the defendant is not bound to take a doubtful, suspicious, or partial title; and if none other, or no title is now given to him, he is entitled to a deduction from the bonds yet unpaid, to the amount of the full relative value of such land, as well as for damages the residue of the land has sustained by reason of the defect.
    
      Answer. When one man sells to another a tract of land, and covenants to give a good title, the purchaser is not bound to take a doubtful, suspicious, or partial title. But if the purchaser accept the title offered, enter into possession, enjoys the property for .a number of years, sells a valuable portion of it for a larger sum, so as to put it out of the vendor’s power to rescind the contract, the same rule will not apply in all its strictness. In a case where a purchaser is in possession of the whole, has accepted a deed for the whole, perhaps not likely ever to be disturbed in his possession, having a good title to the larger portion, and the lapse of a few years promising to confirm the whole by operation of the statute of limitations,—would it be fair, under such circumstances, to say be shall hold his doubtful title, which may be as good as an unimpeachable legal title to him: no one likely to disturb him in it; no one contending with him for it; would it be fair, under such circumstances, to say he must have his title perfected to every part, beyond suspicion and beyond possible impeachment, or have a deduction from the bonds unpaid, to the amount of the full relative value of the whole of the land, the title of which may be doubtful, as well as for the damages which the residue of the land might have sustained by the loss of a part. If such were the law, a man might hold all the land he purchased under a doubtful title, and refuse to pay any thing for it. The real loss the purchaser has, and is likely to sustain by reason of the defect, is a proper subject of deduction. The amount a jury is called on to fix, under all the evidence.
    11. That if the jury find that William Ramsey had no warrant of attorney from the plaintiffs, that he only marked his name as attorney for the plaintiffs at the bar, and after the jury were sworn in this case, and that not he, but all or some of the other plaintiffs, had a right to recover in the ejectment No. 131, November, 1816, he had no right to discontinue the same; said discontinuance would not conclude said plaintiffs: but on motion by them, and said facts appearing, the court would strike off said discontinuance and reinstate the suit.
    
      Answer. By the ordinary and daily practice of courts, we recognise the acts of counsel without their exhibiting a warrant for their appearance. They are officers of the court, and responsible for their conduct. Mr. Ramsey being named as a party, and having entered his name as counsel of record and discontinued the suit, it is prima facie a valid act. And I cannot conceive that any court would. strike off the discontinuance, after its having been expressly done to facilitate the recovery in the present suit against the defendant. It would be a fraud upon the defendant to do so.
    12. That if the land has been unimproved in part, and the want of title has prevented the defendant from having the benefit thereof, by improvement and farming the sa'me, if the jury should find against him on the other points, he is not liable to pay interest on the bond. ,
    
      «ñnswer. The usual rule with regard to interest is, that when the purchaser accepts a deed, and enters into possession, and enjoys fhe land, if he withhold the purchase money even on pretence of defect of title, and if the vendor ultimately recover the purchase money, interest is recoverable also. We cannot inquire into the exact profits of the land, and the precise extent to which the purchaser employed it; to ascertain which, the interest or'the profits would exceed in value. We must frequently be governed by more general rules. I cannot say the rule is absolute in this way; but it would require strong evidence to take a case out of it. A party can always stay interest, by tendering the amount of the claim due, and holding it ready for payment, when it can be properly made.
    13. That if a good title has never been given or offered to the defendant, until the cause came on for trial, the jury have a right to allow the defendant a compensation for his loss of time, trouble, and expense, independently of the legal costs and attorney fees.
    
      Answer. The fixing a rule or measure of deduction from the plaintiff’s claim, involves various difficulties. The defendant took a general warranty in his deed from K. It is in proof that K. is insolvent. It also appears that since the date of the deed, ejectments have been brought against the defendant for part of the land embraced in it, one of which was tried and the other discontinued to day. Under these circumstances, the law would be unjust, if it would not suffer the defendant to claim a deduction out of his bonds, if the title is actually defective, to the whole or a part. There has been no eviction, but it is not denied that the title was defective at the bringing of the suit. At that time, then, the defendant had an equitable defence. This suit was instituted in 1809. The statute of limitations had not then fun out as to the seventy-eight acres, or any part of it; consequently, the outstanding title of M. H., as to that quantity, was to be preferred. The bond, when suit brought, would be about two hundred and sixty-six dollars and sixty-seven cents, sixty dollars having been paid the 31st of March, 1809. The seventy-eight acres, at the average price given for the whole, would amount to about six hundred and eighteen dollars; three hundred and fifty dollars and upwards more than the plaintiffs claim in the present suit. If this view is correct, when this suit wás brought, F. had an equitable defence to the whole claim; and, if so, we advise the jury, if they find for the plaintiff, to make their verdict subject to the payment or deduction of the legal costs on parts of this suit.
    Although such equitable defence may have existed, when the suit was brought, still, if since that period that defence has been avoided, by the transfer of those holding under M. II. to Ramsey, and a tender of a deed from him to the present defendant, or by the operation of the statute of limitations, then the plaintiff would be entitled to recover, agreeably to the rules we have stated.
    If no fraud existed in the contract between K. and F., and there is still an outstanding adverse title, better than the one offered to or held by the defendant, he would be entitled to a fair indemnity for the value of the part for which he got no title. But I cannot see how he can legally be allowed “ a compensation for for his loss of time, trouble and expense,” except the costs of suit, subject to which we have, in a certain event, recommended you to' find your verdict If there was' fraud on the part of K. in the contract, he should be made responsible for his fraud, to the whole extent of the injury effected by it.
    To these answers the defendant excepted.
    
      Parker and Alexander, for the plaintiff in error.
    
      Carothers and Mahon, contra.
   The opinion of the court was delivered by

Huston, J.

This suit was brought against Fulweiler and his sureties, on a bond dated the 8th of June, 1807, for the payment of one hundred pounds on the 30lh of August, 1808. Pleas, payment, &c. nil debet, and a special plea stating the failure of consideration. Replication and issues. There were five other suits between the same parties on other bonds.

On the 9th of February, 1820, an agreement was entered into by the parties, and filed of record in the cause.

The above suits are on bonds, which were part of the consideration of a tract of land bought by the defendant from P. Klinger, in 1807. The deed from Klinger contained a general warranty. For about seventy-eight gcres of the best part of the said land, Klinger had not a good title, and the title for the same is not now in the defendant. About eighteen or twenty acres of the said seventy-eight acres are cleared. Partial payments have been made on some of the bonds. The plaintiffs are to deliver to the defendant a good title for the land mentioned in the deed from Klinger; the title to be approved of by the court. If a good title be delivered, as above, the defendant claims a deduction from the said bonds, for the following reasons and on the following accounts:—

[Here follows a specification of the grounds of defence, j

The agreement proceeds thus: It is agreed that the court determine whether all, or any, and which of the said grounds of deduction claimed by the defendant are, if true, legal off-sets, or ought in law to be deducted from the amount of the said bonds. The amount of said off-sets or deductions to be ascertained by three auditors, or a majority of them, to be appointed by the court.” Several other provisions follow, among which are some agreements relating to the manner in which the costs of the said suits are to be paid.

On the 25th of March, 1824, the following proceedings appear in this cause:—

By the Court. The court being of opinion, on argumept, that the title now tendered is defective, at least so far as regards the title of Lydia Hallowell and Ann Brown, the agiéement of the parties cannot now be carried into effect further. And, on motion of the plaintiffs, the agreement is now set aside, because it has become inoperative, cannot be carried into effect, and to suffer it to remain, would be a perpetual bar to the plaintiff’s proceeding, .which would be manifestly unjust.

The above opinion was filed, at the request of the defendants’ counsel, who opposes setting aside the agreement. And the defendants’ counsel afterwards objected to the jury being sworn, alleging the agreement to be in force, and that the court could not set it aside.

The above proceedings formed the subject of the first error.

The agreement consists of an admission of certain facts, and of a submission of the cause to be decided in a way and on terms different from the ordinary course of trial by jury. It would seem, the first part, the agreement to certain facts stated, was not considered as at all impaired by the decision of the cause; for it was read at the trial, and considered by the court as an admission of those facts, and was rightly so read and considered. As to that part of it, the court could not exercise any power over it, and, as I take it., did not. It may be, that if an agreement admits facts, the party may be permitted t.o show he did so under the influence of mistake or surprise. Unless this is done, an admission of faets in a cause on the record, would not be struck off that record by the court. It would seem the true meaning of the order of the court, was to strike off the submission of the determination of the cause to the court, and to arbitrators, and to relieve the plaintiffs from that part of the agreement which would tie up the plaintiff, until he got. a title to the whole of the land sold.

The whole land sold was more than six hundred acres, the part of which the title was defective was originally seventy-eight acres. This belonged to seven co-heiresses of Thomas Bye, and from five of these the defendant obtained a conveyance. The shares of Lydia Hallowell and Ann Brown, two of the seven, were outstanding. There was then a hardship, perhaps injustice, in depriving the plaintiffs of the price of the whole seventy-eight acres, because a title to two-sevenths could not be obtained. But it is said the plaintiffs'might, for aught that appears, have procured the title to those two shares. Of this, we think the court below were the proper judges, and that their decision on this point is not the subject of a writ of error. The case comes within a principle often decided in this court, and is not stronger than refusing a new trial, which is not to be reversed on error, though even we should think a new trial ought to have been granted. That court has decided, that the agreement, in this particular, ought not now to be carried into effect; and they were right in considering it as the agreement of the plaintiff to obtain and give to the defendant a good title for the whole, if it was in their power to do so.

After the jury was sworn, several exceptions were taken as to evidence, and several are here taken to the charge of the court.

1. The defendant offered in evidence a receipt for taxes assessed on one of the tracts included in the sale to the defendant, while it was unseated; and also receipts of Oliver Evans for money paid him on his claim as patentee of the right to a hopper boy and flour press in the mill when the property was sold, &c.

There is some uncertainty as to the first. The plaintiff’s counsel say the receipt for taxes was given in evidence, and admit it ought to be, if it was for taxes left unpaid by Klinger on one of the tracts while unseated, and the bill of exceptions is in this respect vague. It ought to have been admitted, if it was a lien; and the other receipts for money paid to Evans as clearly ought not to have been, and were rightly rejected, because no patent to Evans was shown: and the money was paid voluntarily, and it is conceded to have been decided that Evans’s patent was void.

2. On the property sold to the defendant was a grist mill. The defendant offered to prove the situation of the mill, the dam, race, &c., and that by reason thereof, the mill was of little value. This was rejected,—and it clearly ought to have been admitted. The defendant did not ask the contract to be rescinded, because there was a defect of title as to a small part. He keeps the property, and is entitled to an abatement of the purchase money, in proportion to the part which he does not get. That proportion can only be ascertained by proving the relative value of it, compared with what he does get, and this is ascertained by going into particulars; that is, the value of each part. The mill, at the time of the sale, might have been of value equal to all. the land sold with it, or only of value equal to one-tenth or one-twentieth of the whole property sold. It seems to me, that in the hurry of a trial, it did not strike the mind of the judge, as offered for this purpose, or he would have admitted it. In his charge to the jury, he states the law as it is settled; viz. that the deduction of price is to be determined by comparing the value of the land lost, with that of the property to which he got a good title, and which he retains. The evidence offered was proper, and ought to have been received, and there was error in rejecting it. •

The title to the seventy-eight acres before mentioned was traced to a certain Thomas Bye, who, on the 7th of March, 1808, conveyed it to his seven daughters, on the 1st of June, 1812. These daughters, and the husbands of such of them as were married, joined in a power of attorney to'three persons, (one of whom was Ann Brown,') or any one of them, to sell and convey this tract. Brown conveyed this tract, and duly executed a conveyance to William Ramsey on the 10th of March, 1823. He signed the names of the principals to the deed, and affixed their seals, and, among ethers, that of his own wife, Ann Brown. The name of Lydia Hallowell, one of them, and a married woman, was interlined, wherever it occurred, in the acknowledgment of the power. The power was duly acknowledged by the principals, and the acknowledgment of the married daughter was in the form prescribed by the act, for passing the estates of married women. After Brown had executed the deed to Ramsey for his principal, he acknowledged it as attorney for the said, (naming all his principals,) to be his act and deed. On the 23d of March, 1824, William Ramsey conveyed the seventy-eight acres in question to the plaintiff.

All this evidence was objected to and admitted, and the effect of it, when admitted, formed the subject of exception to the charge of the court. That married women may, jointly with their husbands, give a power to convey lands, and that such power, when acknowledged in the manner prescribed by the act of assembly for passing the estate of married women, will be good, has been heretofore decided in this court. If it were not, it would unsettle many estates.

The power was not executed by the attorney for more than ten years after its date, and the counsel insisted the principals must be supposed dead. In those cases where that presumption is admitted, it is coupled with the circumstance that the person has removed from his former place of abode, and not been heard of for seven years. No removal—no inquiry was.alleged here.

But the acknowledgment is objected to. There are some cases to be found, where much strictness would seem to be required in the forms of those conveyances by attorneys. But in Coombe’s Case, 9 Co. Rep. 76, 77, the court put it on the ground that the act is good, if it appears that he did it as attorney, and that it is immaterial whether it is stated. The principal, by his attorney, does the act, or the attorney, as attorney for the principal, does the act. The difference is form, and nothing but form.

There is no error in this part of the case.

The next error assigned, is to the court rejecting evidence of the expense of the defendant in certain ejectments, brought for the recovery of this seventy-eight acres, one of which was discontinued immediately before the trial of this cause, and after Ramsey made his release to the defendant. I understand expenses as something distinct from legal costs, which I understand the court in a subsequent part of the cause to say, are to be allowed to the defendant.

When a man purchases, and has a general warranty in his deed, he may, when ejectment is brought against him for the land, or a part of it, give notice to the warrantor to appear and defend the suit. And if notice is duly given, and he does not defend, the record of the recovery is conclusive evidence against him, in an action of covenant on the warranty. If the vendee does not give notice, but appears and defends, it has not been allowed him to recover his counsel fees paid, and his own expenses; for there may be no ground of defence, and he shall "not subject his vendor, without his knowledge and against his will, to more than he is liable to on his covenant of warranty. This, generally. There may possibly be exceptions, where the warrantor has left the state, and expense must be incurred before he can be found,and notice served; or in cases of fraud in the warrantor. For any thing appearing in this record, the court was right.

Thirteen points were submitted to the court below, on which they were required to deliver opinions to the jury.

I do not mean any reflection on the counsel in this cause particularly; but the practice, under the act requiring the judge to reduce his opinion to writing, is becoming a grievance. The counsel knows the points on which his cause must turn, and may properly request an explicit opinion on those points. It cannot, however, conduce to the advancement of justice, to subdivide these points ad infinitum, or to requii’e a written opinion on evei'y point having the most remote connexion with any part of the evidence, and sometimes having no connexion with the matter trying. Errors ai’e assigned here;—on some of these, the opinion given suffices. I proceed to notice the ot.hei’s.

The second point submitted to the court below was, “that Philip Klinger could acquire no right to the land in dispute, (the seventy-eight acres,) by a settlement and warrant subsequent to the warrant and survey of Mark Halfpenny, (the title of Thomas Bye.) Whether he could or not might depend on many matters, and on whether the statute of limitations came to his aid. But to answer it was not necessary in this cause; for it was admitted on record, by the agreement filed, that Klinger did not acquire any right by his warrant and settlement, nor until he purchased five-sevenths of the warrant in the name of Mark Halfpenny; and the only matter trying was what, under all the circumstances of this case, should be deducted from the purchase money on account of the two-sevenths, which were not conveyed to Philip Klinger under the title to Mark Halfpenny.

Exception has been taken, that the fourth position was not fully answered; but it was fully answered, taking into view the answer to the first point, and it was not necessai’y to i’epeat what was thei’e said. The act does not requii’e a judge to file an opinion on the same point more than once in the same cause; and if an answer is found in any part of the opinion filed, he need not repeat it.

The next error assigned, not before noticed, is in the answer to the tenth point, near the close of it, where the court say, “ The real loss the purchaser has or is likely to sustain by reason of the defect, is a proper subject of deduction,—the amount a jury is called on to fix, under all the circumstances.” The phrase, is likely to sustain—is objected to, and it would have been better omitted. The plaintiff had procui’ed the reference to be struck off, because he could not obtain the shares of those two married women. He asks the cause to be tried while those shai’es are oustanding. They must then be taken as lost to the defendant; they are valid subsisting rights. It will not do for the plaintiff to admit this, all through his cause, and at the close of it say perhaps, they they will never claim them, and therefore you must not be allowed for them. I am not sure the judge meant what is alleged now to have been his meaning. I incline to believe these words slipped into the charge inadvertently.

The court below having stated that the jury might, and in a certain view of the cause advised the jury, to deduct the costs up to a certain point in this cause, and his legal costs in the ejectment, the on!)' point remaining is as to the interest. The answer of the court on this point is right as far as it goes. It is objected that it does not meet the case trying: perhaps it might have been put more explicitly in the point submitted to the court.

In this case the defence is, want of title to a part;—that still exists, and the plaintiff admits he cannot give it. It is then like the case where part is recovered from the vendee by adverse title; in which case the price of that part, in proportion to the residue, is to be deducted from the bond, before any interest is calculated on the bond. But to this there may be an exception, if the vendee has enjoyed the land during the time interest is demanded; and this is a matter of evidence, and to be submitted to the jury.

But for rejecting the evidence of notice, &c., the judgment is reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  