Lessee of Dr. William Shippen against Philip Aughenbaugh, 4 Yeates 327

Per Ctir. The plaintiff in ejectment must shew a good right, before he is entitled to recover the possession of the'lands. If the population company have forfeited their interest in the premises, and it be competent to the defendant to object the want of actual settlement and improvement by the company, while he has withheld the possession from them of the land itself, then he will derive a benefit and advantage from his own unlawful act, which is against all law, justice and reason. The uniform decisions of the state as well as of the federal courts, have fully established this point in the negative.

Under the express words of the act of 3d April 1804, upon applications in the secretary’s office, on the trial of all suits brought between warrantees and actual settlers, the actual settler is permitted to plead and make proof of 'his improvement and residence ; and such application is declared equivalent to an original or vacating warrant. It will not be contended, that a warrant * - '*'obtained by a defendant in ejectment after the suit I brought could be received in evidence.

The present application being placed on the same footing as a vacating warrant, the consequence is, that it is not admissible in evidence. Verdict for the defendant. A motion was made for a new trial by the plaintiff; and it was afterwards agreed by the counsel on both sides, that the motion should be heard and determined by the whole court at Pittsburgh next September term, without prejudice to either party. A new trial was afterwards awarded.