The warrant was taken out in the name of _James Hughes_, (the father of the plaintiff who is since dead,) for the benefit of his children.
After argument by Mr. _Charles Smith_ and Mr. _Duncan_ for the plaintiff, and Mr. _Daniel Smith_ and Mr. _Read_ for the defendant, Justice _Shippen_ in the charge of the court to the jury, said--
The dispute here, is between a first improvement, and a subsequent but much more valuable improvement. But neither of the parties has any legal or equitable right, but under the act of the 21st _December_ 1784. The settlement on this land was against law. It was an offence that tended to involve this country in blood. But the merit and sufferings of the actual settlers cancelled the offence, and the legislature, mindful of their situation, provided this special act for their relief. The preamble recites their "resolute stand and sufferings," as deserving a right of pre-emption. The legislature had no eye to any person who was not one of the occupiers after the commencement of the war, and a transient settler removed, (no matter how,) is not an object of the law. This is our construction of the act. _James Hughes_ under whom the plaintiff claims, died before the war, the other occupied the premises after, and in the language of the act, "stood and suffered." If this construction be right, the cause is at an end.
Besides, the plaintiff claims as the heir of _Thomas_, who was the heir of _James_, the first settler. I will not say that the fair play men could make a law to bind the settlers; but they might by agreement bind themselves. Now _Thomas_ was one of these, and was bound by his conduct, from disputing the right of the defendant.
This warrant it seems, is taken out in the name of the father, and it is said, as a trustee for his children. It is sometimes done for the benefit of all concerned. If this be the case, it may be well enough; but still it is not so regular, as it might have been[.] With these observations, we submit it to you.
This case, although originated in the Northumberland County Court in 1786, was appealed to the State Supreme Court, where the lower court decision was affirmed in 1791. The summary runs the gamut of Fair Play procedures from settlement, through questions of tenure, to ejectment. Its completeness indicates its usefulness. Partial and occasional depositions in the other cases cited help to round out the picture of the Fair Play "code."