(Hayden and Wife v. Mentzer and others.)

be averred, contrary to that which is expected in the deed. But there is no occasion to consider that question at present, and therefore, I abstain from it. My opinion is, that there was no error in the charge of the court below, on the evidence in the case, and therefore, the judgment should be affirmed.

Judgment affirmed.

[CHAMBERSBURG, OCTOBER 17, 1823.]

MUNSHOWER and another against PATTON.

IN ERROR.

If the sheriff who returns the jury is a brother of one of the parties, it is a good cause of challenge to the array.

Actual occupation of land for 21 years, however tortious or destitute of colour of title, gives a right, to the extent of the inclosure, against all the world but the

state.

The limitation against a settler runs from the inception of his settlement, whatever may be the date of his warrant.

ERROR to the Court of Common Pleas of Huntingdon county, in ejectment brought by Joseph Patton, the plaintiff below, against John Munshower and George Mahood, defendants below, in which a verdict and judgment were rendered in favour of the plaintiff below.

The plaintiff claimed under a warrant to Joseph Patton for 210 acres including an improvement, interest from the 1st April, 1785, and survey thereon. The defendants claimed under a location to John Cochran, with a patent and survey, and also by virtue of long possession. The question between the parties respected a piece of land in the possession of the defendants, which the plaintiff alleged to be included within his survey, and evidence was given on both sides on this point. On the effect of the defendants possession, the court below was requested by the defendants to charge the jury on several matters, and, exceptions being taken, the answers of the court were the subject of assignment of error in this court.

When this cause was called by the court below, the defendants objected to the calling and swearing of the jury, because the sheriff John Patton, was the brother of the plaintiff, had assisted in drawing the jurors, and had summoned them, in pursuance of the renire directed to him. The court overruled this challenge to the array, and ordered the jury to be called and sworn. The defendants excepted.

The defendants after the evidence was concluded, requested the court to instruct the jury,

That if there was a possession adverse to the plaintiff of more

(Munshower and another v. Patton.)

than 21 years, of the land in dispute under Daniel Martin, who claimed under the survey, in the name of John Cochran, and the tenants of Harry Gordon, claiming under the same survey, the plaintiff cannot recover.

Answer. Twenty-one years adverse possession of lands generally protects one man against the claims of another. But the rule is not universally true. The statutes of limitation do not operate against the rights of the commonwealth to unappropriated lands. And whatever rights the commonwealth at any time had, she could transfer the same to any person, according to her laws and usages. The mere incidental clearing and improving of lands over the lines of the patent or survey under which the defendants claim without a resident settlement, before any grant from the commonwealth, does not vest a right by improvement. And such possession is not adverse to, but under the commonwealth. Though it continue 21 years it is no bar, by the statute of limitations, to the commonwealth, or a subsequent grantee against whom 21 years adverse possession have not elapsed. If the title had been out of the commonwealth, and the defendants, and those under whom they claim, had held the adverse possession of the land in dispute for 21 years, before the bringing of this suit, it would have operated as a bar to the plaintiff's recovery. Wherever there is a right of entry in an individual, (except cases of infants, &c. as excepted by the act,) 21 years adverse possession will bar that right. A person obtains a right of entry by an actual resident settlement, on lands before a grant from the commonwealth, and if such person were ousted from the possession by another having no title, he might recover his former possession in ejectment. But if he delay his suit without regard to the 5th section of the act of 25th March, 1785, on the principles of the 1st section of said act, he would be for ever barred. This establishes the position, that although the statute may not operate against the commonwealth, yet that it will operate against individuals claiming under the commonwealth before any grant made by the state to any person. The extent and the length of defendants possession are questions of fact for the jury to decide. But under all the circumstances as they appear to us, we think the plaintiff is not barred by the statute of limitation.

2d point. That in executing the warrant of the plaintiff the deputy surveyor had no right by law to include the orchard meadow and other cleared lands of the defendants, if the jury believe the lands so included had been held adversely for more than 21 years before this ejectment brought, and which never had been in the possession of any actual settler on the land claimed by the plaintiff.

Answer. The province and the commonwealth had disposed of their lands by grants, or upon improvements by actual settlers. By grants we may include every species of paper title. By improvement, actual residence on the ground is an indispensable' ingredient

(Munshower and another v. Patton.)

of titles. An accidental clearing over the line of a grant or survey does not constitute an actual residence on such overplus. And against the commonwealth it is no evidence of a grant. It can, therefore, create no title as against the commonwealth in one way or the other. It follows, that the title remains in the commonwealth, and that she may grant it to any person according to her laws and usages. We, therefore, can discover nothing in law or equity, to prevent the deputy surveyor from executing a warrant including the orchard, meadow, and other cleared land claimed by the defendants, if no part of either was embraced within the previous grant by the commonwealth under the warrant and survey to John Cochran, or had been appropriated by a resident settlement on the ground. Whether the whole or any part of the land in this suit is embraced in the survey of John Cochran, or whether an actual resident settlement had been made thereon is a question of fact to be determined by the jury.

The following errors were assigned in this court.

1. That the court instructed the jury that where two persons live on adjoining tracts of land claiming adversely and the time not distinctly ascertained, 21 years actual adverse possession does not bar the plaintiff from recovery.

2. That they declared that the statute of limitations was no bar to the plaintiff's recovery.

3. That the court directed the jury that a person in executing a warrant founded on an improvement could survey in the orchard meadow and cultivated land which had been more than 21 years in the adverse possession of the owner of the adjoining survey.

4. In the bill of exceptions making the challenge to the jury. The opinion of the court was delivered by

DUNCAN, J. The jury being returned by the brother of the defendant, in error, plaintiff below, a challenge was made to the array, and overruled and exception taken.

At the common law, this was good cause of challenge. The wisdom of our ancestors guarded the purity of the administration of justice from even the suspicion of partiality. The jurors returned, as well as the officers who returned them, were, as far as human precaution could provide, to stand unprejudiced. Our own legislature intended to add further security, by the several laws directing the mode of selecting and returning jurors. The balloting for the jurors to be returned, as well as making out the list from which they are to be drawn, is to be conducted by the sheriff and commissioners of the county. It, therefore, would be no cause of challenge that the sheriff was related to one of the parties, so far as respected his uniting with the commissioners in making out the list, and the other measures preparatory to their summons. But there remains a very important duty to be performed by the sheriff alone, in which he has it in his power to exercise some partiality.

He

(Munshower and another v. Patton.)

may summon those of the jury whom he might think most favourable to his relation, and omit summoning the rest, and thus to a certain extent pack a jury as much as if he had the sole power of selecting the panel; for he may select and return whom he pleases of the general panel. If the sheriff could execute the venire process, he might hold a view. It is not what the sheriff has done in the particular case, but what he has the power to do. It is because of his power to execute it partially, that he is disqualified from executing it at all. The next desideratum to the pure administration of justice is, the giving satisfaction to the suitors, that their causes have been fairly and impartially decided. Now no man would be satisfied if the brother of his adversary had power to make any choice who should try his cause. In the Supreme Court of New York, Woods v. Rowan and Coon, 5 Johns. 133, the principle is decided. There, to be sure, the sheriff was the party, but had no concern in balloting for the jury: yet by his power of selecting triers of the cause, he had an advantage which the other party had not, and however remote or unimportant that advantage might be, if it existed at all, the law would not allow him the opportunity of availing himself of it. The case of tales men is provided for by the act. There if the sheriff is liable to legal exception the coroner is to return them, and if he is liable, the elisors to be appointed by the court: the legislature thus declaring the returning officer liable to all the legal exceptions of the common law, even in the case of a special jury, with the nomination of which he has no concern. If liable to legal exception, that is if a party or related to a party, he cannot make the return. I see no occasion to depart from this settled rule, wisely introduced for the purpose of guarding against corruption and partiality in trials by jury, the great security of property and of life itself. There is a distinction between the returning of the jury by the sheriff, which is his sole act, and the making out the list and balloting. The list is to be made out jointly by the sheriff and commissioners. It is to contain the whole necessary number for one year, and from the whole number put into one wheel, the particular panel for each term is to be drawn. The act makes no provision but for an annual list, which is to be made out by the sheriff and commissioners, and therefore of necessity the sheriff must attend to the duty with the commissioners. But there is no necessity, where he is liable to the common law exception of partiality, that the venire should be directed to him. The venire may be directed to the coroner or to elisors, and the return made as the act directs as to tales men.

There are several exceptions to the opinion of the court, which as the cause is to be sent back for trial, renders it proper for the court to consider the exceptions, and points made in the Common Pleas. The charge of the court is not altogether free from obscurity. Different interpretations have been put on it by the counsel. 2 U

VOL. X.

(Munshower and another v. Patton.)

On a fair view of its whole structure, I think the plaintiffs in error have failed in substantiating the first error assigned. I do not understand the court to say, "that where two persons live on adjoining tracts, claiming adversely, and the line not distinctly ascertained, 21 years actual possession would not bar the plaintiff's recovery." Did I so understand the charge, it would appear to one to be erroneous, when the actual possession was by inclosure, however correct it might be, where there was a scambling possession, or a mere constructive one, and not an exclusive occupation.

The 2d and 3d specifications are the same, and if the court had instructed the jury, that where a man cleared over his patented or surveyed lands, and occupied a space by actual inclosure, comprehended within the settlement right of another, or the claim of another founded on settlement right, and continued in such possession for 21 years after such inceptive title, by entry on vacant unappropriated lands, and that such settler afterwards obtained a warrant calling for his improvement, that the act of limitations will only begin to run from the date of the warrant or time of improvement stated in the warrant, this would be error. For as I have said in Johnson v. Irvine, I cannot see any case where limitation would be a bar, if not in this case. The actual occupation, however tortious it might be, however destitute of the colour of title either in law or equity, gives a right to the extent of inclosure against all the world, but the state. If then a settler whose inceptive right to vacant lands commences with the origin of his settlement, suffers another to continue his occupation for 21 years, of lands which his inceptive right would reasonably include, he cannot shelter himself from the operation of the act. Where he takes out his warrant within 21 years, if he dates back his warrant to the time of his settlement, the limitation commences from that time. If he dates it as of a time posterior, or does not pay any interest on his warrant, this fraud on the state will not put him in a better state than if he acted honestly. It is clear to me, that the limitation against a settler runs from the inception of his settlement whatever may be the date of his warrant. This construction while it secures to the state her purchase money, gives to the possessor the benefit of his loug continued and uninterrupted possession. To construe it otherwise, would give to a settlement right to vacant unappropriated lands, with undefined boundaries, a protection beyond a patent whose boundaries are ascertained. I observe, the court in their charge throughout, say, that the time only runs from the date of the grant of the commonwealth, and explain their meaning of grant; by grants they say, they mean all paper titles of every species, If it was the intention of the court to lay down the law to the jury, that the limitation commenced only from the paper inception of title under the state, this would be error: