ERROR to the common pleas of Luzerne county.

This was an action of trespass by Hanover Barney and Caleb A. Townsend against Samuel Sutton, in which the parties agreed to consider the following facts as a special verdict:

That the plaintiffs hold the certified title by the compromising law of 1799, under sundry mesne conveyances; and have been, by themselves, or those under whom they claim, in the actual possession of the locus in quo, &c. for many years, to wit since issuing the certificate in 1805 ; and that the certificate issued in the common form, under the compromising law, without any reservation, conveying, upon the face, of it, the absolute title: which, on the 3d of January 1809, was sold by order of the orphan’s court to. E. Blackman, and by him subsequently to the plaintiffs.

That previous to the granting or issuing of the certificate to the person under whom the plaintiffs hold, to wit on the 9th of May 1794, there was granted by the said Connecticut claimant to whom the said certificate issued, to those under whom the defendant claims, by deed recorded in Luzerne county, a fight to enter on the said premises to search for, dig and carry away coal and other minerals, which was as follows:

“ Know all men by these presents, that I, Joseph Hazard, of Pitt-son, in the county of Luzerne and commonwealth of Pennsylvania, for and in consideration of the sum of five shillings to me in hand paid by Dr William Hooker Smith of Pittson, in the county of Luzerne-and commonwealth of Pennsylvania, have given, granted, bargained and sold, and by these presents do for ever bargain and sell unto the said William Hooker Smith, his heirs and assigns for ever, a privilege to search for and to dig and raise iron ore and stone coal, or any other mineral whatsoever on a certain lot of land lying in Pittson, known by number eight in the first division of lots in Pittson on which I now live, I having only half the privilege and property of ores and minerals in said town; and he said Smith, his heirs and assigns, shall have free liberty not only to dig and raise said ore from and out of the earth, but also shall have liberty of road and ways to carry away said minerals, where it will do the least hurt; but he said Smith is not to have the sole andjonly privilege, so as to hinder said Joseph Hazard or his heirs from digging and collecting minerals off and from said land, and the said grantor and grantee are to have an equal right to dig and raise ores and minerals, but not so as to interfere with each other. Dated, this 9th day of May, in the year of our Lord Christ 1794.

“Joseph Hazard, [l. sf].

“Signed, sealed and delivered in presence of Henry Barney, Celinda Baldwin.”

Proved by subscribing witnesses, 29th of September 1794. Recorded 12th October 1795.

The probate was not authenticated by the seal of the justice as appeared by the original deed.

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