
    SEPTEMBER TERM, 1774.
    Before Chew, Chief Justice, Willing and Morton, Justices.
    Hurst v. Dippo.
    
      Demurrer to evidence.
    
    The list of first purchasers under William Penn, admitted in evidence.
    A deed produced in evidence and demurred to, must be set forth in Jieee verba, on the demurrer.
    Trespass. — The plaintiff’s counsel opened, that William Penn, by deed of lease and release, granted to his ancestor, A. Sonmans, five thousand acres of land in Pennsylvania; that such deeds were lost or otherwise mislaid ; and to prove the existence of such deeds, he showed a list of names, commonly called the list of first purchasers, and containing a warrant, signed and sealed by William. Penn to *his surveyor-general, to survey the several quantities of land there mentioned; which the plaintiff L contended was good evidence to prove his title. Defendant demurred to plaintiff’s evidence.
    A question then arose, whether it should be stated that the plaintiff’s ancestor, A. Sonmans, was seised in fee, by virtue of a grant from William Penn ; or whether the list of purchasers should be set forth verbatim f
    
   After long debate, the Chief Justice gave the opinion of the Court, as follows :

Chew, Chief Justice.

Though demurrers are disused, yet the law is not uncertain. It is a settled rule that courts of law determine law; a jury, facts. Upon which maxim every security depends in an English country.

When a deed is produced in evidence, it must be shown in hcee verba on the demurrer. There is a difference between Halier’s (Jase as reported in Croke and Coke ; but it is law, that when facts are attempted to be proved by witnesses, the fact must be admitted ; but previous to the admission of a fact, circumstances or evidence must be shown, tending to prove such fact. There may be a demurrer to evidence, either parol or written ; and there may be written evidence to prove a fact.

The difficulty in this case is, whether this list of .purchasers is- sufficiently descriptive of the nature of the estate, in the deed referred to. We must, for the security of the province, take notice of the circumstances of this province. It is well known, what kind of a transaction this was. William Penn, soon after his grant from the Crown, sold lands in small parcels. It appears, he made deeds for sundry small parcels of land, and received the money. These grants were in the province at large; the party must 'do something more to appropriate the land. By this list, he expressly says, it is an account of the lands granted to purchasers ; is it not then a proof that William Penn made a grant, among others, to A. Sonmans, for five thousand acres of land in Pennsylvania?

It sufficiently appears a deed did exist; but it may be asked, what was the nature of that deed — what kind of an estate passed by it ? Whether it is proper to go out of the evidence may be questionable. The word purchase, however, implies a purchase in fee ; and there is no instance where any other estate was granted. Besides, the custom of the province, in the like cases, shows what was the nature of the purchase.

The Court do not take upon themselves to say what the deed was ; and, under all the circumstances of the case, we think it not proper to insert this list in the demurrer. If the defendant’s counsel will not agree to state an estate in fee in the plaintiff’s ancestor, it must go to the jury to draw their inference of the nature of the estate, from the evidence laid before them, 
      
       The “ list of first purchasers,” which appears to have been received in evidence in this case, was also admitted in Morris v. Vanderen, post, p. 64, after argument, and is said by C. J. Tilghman, in Kingston v. Leslie (10 S. & R. 387), to have been “ often since received without opposition.”
     