The Lessee of the Proprietary v. Ralston

* APRIL TERM, 1773. Chester Nisi Prius, August 24, 1773. The Lessee of the Proprietary v. Ralston. Ejectment. — Evidence.—Practice. After giving evidence of title in a third person, the defendant may move for a nonsuit. The plaintiff cannot demur to the defendant’s evidence, before he has- gone through the whole. A letter from the plaintiff’s ancestor is not evidence, in his own behalf, to prove the defendant's grant to have been conditional. Plaintipp showed a title in himself to the province of Pennsylvania, and then rested. Defendant showed a deed for one thousand acres of land ; also a warrant to himself and two others to take up three thousand acres of land, which included the lands in controversy ; also a power of attorney to David Lloyd to take care of said land, and an account of the exj>enses of survey. Defendart having shown title in a third person, as he conceived, moved for a nonsuit, and as authorities, cited Bull. Nisi Prius ; Instit. Leg., title Eject. Plaintiff’s counsel insisted to know whether the defendant had gone through all his evidence, and said that he was not entitled to the opinion of the court until then, upon his title in a third person. But the Court determined contrd ; and then gave their opinion that, as the defendant’s deed was a conditional deed upon the face of it, he was not entitled to a nonsuit. The plaintiff’s counsel then contended, that they had a right to demur to the defendant’s evidence. This was opposed by the defendant’s counsel, who insisted, they had a right to go through their evidence, before the demurrer was allowed. Of which opinion the Court also was ; and the defendant proceeded with his evidence, among which was a letter from William Penn, the first, acknowledging this sale and grant. The plaintiff afterwards offered a subsequent letter of William Penn’s, declaring the grant to be conditional; and, as this condition was not performed, the grantees should not have the land. This the defendant’s counsel opposed, on the principle that no man could create evidence for himself. Tilghman. Letters are like conversation, when the whole must be given. Dickenson, on the same side, offered these authorities: 12 Vin. 101. An old manuscript, evidence. Id. 247. The declaration of a woman *presént at the birth of a child, in proof of pedigree, 3 Mod. 36; to show [*19 that the defendant’s rule of evidence is too strict. Upon full argument, the Court overruled the evidence, upon the principle contended for by the defendant’s counsel. Some of the defendant’s counsel, the next day, offered some of Doctor Coxe’s letters to David Lloyd, showing that the condition had been complied with. [MAJORITY] But the Court adhered to their opinion, and overruled these letters also. A verdict passed for the plaintiff (defendant), by which the sense of the jury was, that the non-performance of conditions of settlement did not avoid the grant.