President suggested, that Simms, disclaiming all right to these lands under this title, and refusing to pay the consideration money, ought, at least, to release this title to the state. Mr. Simms immediately offered to do this; but Mr. Bradford thought it not worth accepting.
President directed the jury, that, if they thought it the meaning of the parties to buy and sell a legal title, they should find for the defendant. But if it was their meaning to buy and sell only a claim or occupancy, which might be beneficial or otherwise, they should find for the plaintiff. This is not the case of an assignee for a price paid for the bond, but like the case of an heir or executor of a dead man, who must take all the property of the deceased with all its incumbrances. Were it the case of an assignee for full value, our act of assembly puts him on the same ground with the obligee. Were it otherwise, the state, having fold the land to others, or if to the defendant, for another consideration (the compact between the two states is a consideration*) ought not to require payment twice for the same property. Pennsylvania therefore stands in a worse situation, than any other assignee; and Simms has received no consideration for these bonds. The risk of a rise or a fall of the value of the land, is out of the question either way.
There was a verdict and judgment for the defendant.
It seems Mr. Simms, despairing of holding this land by the Indian grant, had surveyed some of it on a Virginia treasury warrant, and to held it under the compact between the states: and the land attached was the same land.