Per ouriam.
If this paper is offered as evidence „of an official survey, we must reject it, to preserve consistency in our opinion ; but if it is offered as written declaration of Wallis, to [139]*139strengthen or weaken his assertions before the Board of Property, in the presence of the parties, it may be admitted for those purposes, but no further. It cannot be made use of to establish any independant fact. This point however, may also be considered as reserved for future discussion.
The plaintiff having closed his evidence, the defendants produced a special order of the governor, dated 10th August 1769, No. 3731, for 5000 acres of land, to be laid out and surveyed for Benjamin Chew, esq. upon the head branches or lakes of Fishing creek, which runs into the north-east branch of Susquehannah, in one or more tracts, any where above the first forks, or upon the lake or lakes at the heads of the branches; and a survey thereon by Charles Stewart and -i esse Lnkens, deputy surveyors, of 2251 acres and allowance, on 27th and 28th October 1773, and another survey by the same deputies in the same month of 1753 acres, on Little Fishing creek and Green creek, which included the lands in question, and which also interfered with surveys made for other persons under prior rights, to the extent of 1001 acres and 32 perches, or thereabouts. It was also shown in evidence, that on the 8th July 1773, Benjamin Chew filed a oaveat in the office of the surveyor general, against the acceptance of any survey on the head branches or lakes of Fishing creek above the first forks, by virtue of any location since the 10th August 1769.
It was further stated, that on the memorial of Chew to the hoard of property on the 80th September 1791, they ordered the surveyor general to re-survey the first tract of 2251 acres, and denote the claims of persons thereto. Whereupon, William Montgomery, deputy surveyor of the district, made a re-survey thereof, leaving 101 acres and 97 perch.es free from dispute, exclusive of some small scraps of land of little value, amounting to about 100 acres, hut of no value whatever unless accompanied with the possession of the lands adjacent, on the 15th November following.
This testimony was excepted to by the plaintiffs counsel, who urged, that the Board of Property had no jurisdiction in the premises. By the act of 9th April 1781, (Bailey’s Edit. 469. Loose Laws 123,) this board was first instituted after the revolution, and consisted of the secretary of the land office, the receiver general and and surveyor general. In the last section of this act it is declared, that nothing therein shall be construed to give validity to any warrant, grant or location, for a greater quantity of land than 500 acres in one tract. A location was afterwards defined by the act of [140]*14025th June 1781, (Bayley’s Edit. 581. Loose Laws, 474) to be “an . application made for land in tbe office of tbe late secretary of tbe land office, entered in his boobs, numbered and sent to tbe survey- or general’s office. By tbe former act therefore, the locations of this description were only validated, where they did.not 'exceed 500 acres, and tbe jurisdiction of tbe Board of Property could not possibly reach to application or grants of greater extent.
Eorthe defendants, it was, insisted., that the validity .of locations whereon surveys bad been duly made, did not rest on tbe act of 9th April 1781, but on tbe great principles of substantial justices, and tbe act of tbe 27th of November 1779 (Bayley’s edit. 260. Loose Laws, 277) so much commented already upon, in tbe course of this cause. By tbe defendant’s construction thereof, which has met tbe approbation of tbe court, the rights of individuals to lands, as they stood on tbe 4th July 1776, are thereby firmly secured to them. By tbe law of tbe 5th April 1782, (2 Dall. St. Laws 21, 22) another Board of Property was constituted, to consist of tbe president, or vice president, a member of tbe Executive Council, tbe secretary of tbe land office, the receiver general, and surveyor general, “to bear • and determine in all cases of controversy on orneáis, in all matters of difficulty or irregularity, touching escheats, warrants on escheats, warrants to agree, rights of pre-emption, promises, imperfect titles or otherwise.” Tbe formation of this board was again changed by tbe law of 8th January 1791, (3 Dall. St. Laws. 2) and tbe members thereof declared to be tbe secretary of tbe land office, tbe receiver general, surveyor general, and master of tbe rolls for tbe time being, or any three of them: but their powers were continued, as under tbe act of 5th April 1782. Tbe terms of that law are sufficiently comprehensive to reach the present ease, and show clearly tbe Board’s jurisdiction.
Tbe court declared, that if there bad not been such large and extensive words in tbe act of 5th April 1782, “ in all matters of difficulty or irregularity, touching warrants to agree, rights of pre-emption, promises, imperfect titles or otherwise, which unquestionably include the grant to Mr. Chew, tbe Board of Property must of necessity, in order to prevent confusion and litigation, have possessed tbe powers contended for. Tbe last section of tbe act of 9 th April 1781, most probably arose from tbe jealousy bad of the proprietary special grants to particular persons; but it can only refer to warrants, grants or locations [141]*141unexecuted, whore tbe parties have been guilty of ladies and negligence, in obtaining appropriations of vacant lands by actual surveys. Anyotlier construction would effect manifest injustice. Let tlie papers be read.
The declarations of Samuel Harris were then offered in evidence by tbe defendants, respecting the last survey of 3753 acres for them. This was opposed, on the ground of none of the lessors of the plaintiff being present.
It appeared probably that Harris discovered the land, and furnished tlie description thereof to the lessors of the plaintiff. Previous to taking out the warrants, he had in 1773, together with John Hubley and Co. subscribed a paper, whereby they agreed, that the warrants when issued, should be subject to a speciol order issued in favor of Robert Morris and Tench Prancis, dated 14th May 1773, for 4000 acres on Fishing creed, which by the terms thereof was to be postponed, until Chew’s order for 5000 acres was fully completed. On the general draft of the lands made by Wallis was, also endorsed by him, “Samuel Harris and Go. for 7,750 acres” Put it also appeared, by the deposition of one Weitzel read in the cause, that Harris had relinquished his interest in the lands, before the imperfect survey of Jesse Lukens was begun on the 17th September 1773.
By the court.
If the plaintiff had made out his title through him,’testimony would have been given in what relation he stood to the lessors of the plaintiff. As matters now stand, his interest comes before the court, on an incidental question. Mr. Hubley signs the instrument for himself and company. Harris subscribes bis name below him, which would not have been required of him, unless he had been concerned in some shape on the lands. Most probably he was interested only as a mere discoverer of vacant lands, and received compensation for his information. But the company considering him as interested at and immediately before tbe taking out of the warrants, his declarations at that time must clearly be received in evidence against them.
Free access — add to your briefcase to read the full text and ask questions with AI
Per ouriam.
If this paper is offered as evidence „of an official survey, we must reject it, to preserve consistency in our opinion ; but if it is offered as written declaration of Wallis, to [139]*139strengthen or weaken his assertions before the Board of Property, in the presence of the parties, it may be admitted for those purposes, but no further. It cannot be made use of to establish any independant fact. This point however, may also be considered as reserved for future discussion.
The plaintiff having closed his evidence, the defendants produced a special order of the governor, dated 10th August 1769, No. 3731, for 5000 acres of land, to be laid out and surveyed for Benjamin Chew, esq. upon the head branches or lakes of Fishing creek, which runs into the north-east branch of Susquehannah, in one or more tracts, any where above the first forks, or upon the lake or lakes at the heads of the branches; and a survey thereon by Charles Stewart and -i esse Lnkens, deputy surveyors, of 2251 acres and allowance, on 27th and 28th October 1773, and another survey by the same deputies in the same month of 1753 acres, on Little Fishing creek and Green creek, which included the lands in question, and which also interfered with surveys made for other persons under prior rights, to the extent of 1001 acres and 32 perches, or thereabouts. It was also shown in evidence, that on the 8th July 1773, Benjamin Chew filed a oaveat in the office of the surveyor general, against the acceptance of any survey on the head branches or lakes of Fishing creek above the first forks, by virtue of any location since the 10th August 1769.
It was further stated, that on the memorial of Chew to the hoard of property on the 80th September 1791, they ordered the surveyor general to re-survey the first tract of 2251 acres, and denote the claims of persons thereto. Whereupon, William Montgomery, deputy surveyor of the district, made a re-survey thereof, leaving 101 acres and 97 perch.es free from dispute, exclusive of some small scraps of land of little value, amounting to about 100 acres, hut of no value whatever unless accompanied with the possession of the lands adjacent, on the 15th November following.
This testimony was excepted to by the plaintiffs counsel, who urged, that the Board of Property had no jurisdiction in the premises. By the act of 9th April 1781, (Bailey’s Edit. 469. Loose Laws 123,) this board was first instituted after the revolution, and consisted of the secretary of the land office, the receiver general and and surveyor general. In the last section of this act it is declared, that nothing therein shall be construed to give validity to any warrant, grant or location, for a greater quantity of land than 500 acres in one tract. A location was afterwards defined by the act of [140]*14025th June 1781, (Bayley’s Edit. 581. Loose Laws, 474) to be “an . application made for land in tbe office of tbe late secretary of tbe land office, entered in his boobs, numbered and sent to tbe survey- or general’s office. By tbe former act therefore, the locations of this description were only validated, where they did.not 'exceed 500 acres, and tbe jurisdiction of tbe Board of Property could not possibly reach to application or grants of greater extent.
Eorthe defendants, it was, insisted., that the validity .of locations whereon surveys bad been duly made, did not rest on tbe act of 9th April 1781, but on tbe great principles of substantial justices, and tbe act of tbe 27th of November 1779 (Bayley’s edit. 260. Loose Laws, 277) so much commented already upon, in tbe course of this cause. By tbe defendant’s construction thereof, which has met tbe approbation of tbe court, the rights of individuals to lands, as they stood on tbe 4th July 1776, are thereby firmly secured to them. By tbe law of tbe 5th April 1782, (2 Dall. St. Laws 21, 22) another Board of Property was constituted, to consist of tbe president, or vice president, a member of tbe Executive Council, tbe secretary of tbe land office, the receiver general, and surveyor general, “to bear • and determine in all cases of controversy on orneáis, in all matters of difficulty or irregularity, touching escheats, warrants on escheats, warrants to agree, rights of pre-emption, promises, imperfect titles or otherwise.” Tbe formation of this board was again changed by tbe law of 8th January 1791, (3 Dall. St. Laws. 2) and tbe members thereof declared to be tbe secretary of tbe land office, tbe receiver general, surveyor general, and master of tbe rolls for tbe time being, or any three of them: but their powers were continued, as under tbe act of 5th April 1782. Tbe terms of that law are sufficiently comprehensive to reach the present ease, and show clearly tbe Board’s jurisdiction.
Tbe court declared, that if there bad not been such large and extensive words in tbe act of 5th April 1782, “ in all matters of difficulty or irregularity, touching warrants to agree, rights of pre-emption, promises, imperfect titles or otherwise, which unquestionably include the grant to Mr. Chew, tbe Board of Property must of necessity, in order to prevent confusion and litigation, have possessed tbe powers contended for. Tbe last section of tbe act of 9 th April 1781, most probably arose from tbe jealousy bad of the proprietary special grants to particular persons; but it can only refer to warrants, grants or locations [141]*141unexecuted, whore tbe parties have been guilty of ladies and negligence, in obtaining appropriations of vacant lands by actual surveys. Anyotlier construction would effect manifest injustice. Let tlie papers be read.
The declarations of Samuel Harris were then offered in evidence by tbe defendants, respecting the last survey of 3753 acres for them. This was opposed, on the ground of none of the lessors of the plaintiff being present.
It appeared probably that Harris discovered the land, and furnished tlie description thereof to the lessors of the plaintiff. Previous to taking out the warrants, he had in 1773, together with John Hubley and Co. subscribed a paper, whereby they agreed, that the warrants when issued, should be subject to a speciol order issued in favor of Robert Morris and Tench Prancis, dated 14th May 1773, for 4000 acres on Fishing creed, which by the terms thereof was to be postponed, until Chew’s order for 5000 acres was fully completed. On the general draft of the lands made by Wallis was, also endorsed by him, “Samuel Harris and Go. for 7,750 acres” Put it also appeared, by the deposition of one Weitzel read in the cause, that Harris had relinquished his interest in the lands, before the imperfect survey of Jesse Lukens was begun on the 17th September 1773.
By the court.
If the plaintiff had made out his title through him,’testimony would have been given in what relation he stood to the lessors of the plaintiff. As matters now stand, his interest comes before the court, on an incidental question. Mr. Hubley signs the instrument for himself and company. Harris subscribes bis name below him, which would not have been required of him, unless he had been concerned in some shape on the lands. Most probably he was interested only as a mere discoverer of vacant lands, and received compensation for his information. But the company considering him as interested at and immediately before tbe taking out of the warrants, his declarations at that time must clearly be received in evidence against them. When however he has surrendered up all his pretension, as it is sworn lie has done before tlie 7th September 1773, his subsequent declarations cannot be made use of to invalidate his own sale, or affect the plaintiff’s title. Wallis’s indorsement on the general draft, has little weight, unless additionally fortified. The testimony offered must therefore be overruled.
The defendants further give in evidence, a caveat filed by John [142]*142Hubley and Co. dated 20th. February 1692, against Benjamin Chew’s obtaining a patent for the lands in question, alleging that they had prior warrants and surveys of the same lands. Also, a further memorial of Benjamin Chew to the Board of Property on the 18th June 1792, whereon they directed a re-survey of the lands on Little Fish-creek and Green creek ; and a re-survey thereof by William Montgomery on the 1st September following, making the whole amount of the lands comprized within the limits thereof to be 3901 acres and 112 perches, but'the interferences thereof with surveys made under prior rights reduced the same to 2900j|- acres and the usual allowance. These interferences and the prior rights were shown by authenticated office-papers, to the jury.
On the 11th April 1793, the Board of Property, on a full hearing of the contending parties, made their, decision, wherein they rejected the suiweys made for John Hubley and Co. so far as they interfered with the survey made for Benjamin Chew, but stayed the issuing of the patent to the latter, for the term of six months.
It appeared, that the present ejectment was brought in the Court of Common Pleas, to April term 1794, and that the demise in the .declaration was laid on the 2d November 179¶1 It was admitted, that Mr. Ingersoll appeared specially for Mr. Chew, when the ejectment was served on him in Philadelphia, and that he claimed the benefit of the act of assembly passed on the 3d April 1792. 3 Dall. St. Laws, 213.
The defendants then offered a patent dated 22d March 1796, to Benjamin Chew, in evidence; and insisted, that the same was a full and perfect title to the lands against the plaintiffs in the present suit, being grounded on the decision of the Board of Property, and no action having been entered at common law by the lessors of the plaintiff within six months after the determination.
The court expressed their doubts, how far a title vested in the defendants through third persons, after an ejectment brought, could be given in evidence on that suit, independent of a positive law; and desired that point might first be agreed, abstracted from the act of assembly in question.
It was admitted by the defendants’ counsel, that the plaintiff in ejectment-must recover according to his title, at the time of his demise laid. T. Ray. 463. Law of Eject. 13. 4 Term [143]*143Rep. 680. Bull. 4to edit. 103. But it is otherwise with a defendant. Ejectments are fictitious remedies in law, (3 Burr. 1294,) and under the control of the court, so as to be modelled to answer every end of justice. Suppose then, that after bringing an ejectment to recover lands, the lessor of the plaintiff should release to the defendant. Shall not this be laid before the jury ? Or if a descent should he cast on the defendant of the title to the property, pending the suit, shall the evidence thereof be unheard at the trial % Or suppose tenant
In actions on the case, it is said to be a general rule, that matters of defence, arising after the action brought, and before the cause comes on to be tried, allowing that the plaintiff lias no just cause to recover, may be given in evidence. 3 Burr. 1354. Doug. 102,105. The same principle applies to ejectments.
But we are not confined to mere cases of analogy. In an ejectment brought by a landlord against bis tenent, an acceptance of rent from the tenant afterwards, should go to the jury. Cowp. 243, 245. In such a suit for non-payment of rent, the tenant may at any time before trial, pay into court the rent arrear and costs, and the proceedings shall be stayed. Bull. 97. It is competent to a tenant who is defendant in ejectment, to show that the title of the lessor of the plaintiff" who was his landlord, had expired. 4 Term. Rep. 672.
Pro civriam.
In the cases first put, it seems highly probable, that the court would exercise on the return of the postea^ their superintending power and control over this fictitious form of proceeding, to prevent injustice and circuity of action. But the question is, whether a patent obtained after an ejectment brought, shall he given in evidence by tlie defendant, to defeat the plaintiff’s action %
In all the cases cited, except the last, matters which have passed between the plaintiff" and defendant since the commencement of the suit, have influenced the determination thereof; and in ejectments † by landlords against tenants in England, for non[144]*144payment of rent, courts of justice have been very liberal. The point in dispute, of a title derived by the defendant through a third person, has frequently come before the court at Nisi Prius, and such evidence has constantly been overruled. But we give no opinion, how far the words and intention of the legislature in the law relied on, may effect an exception in the general practice.
Smith, J.,'
said, he perfectly recollected a case on the western circuit, wherein he was counsel, and urged evidence of the same nature in behalf of a defendant, and the same was refused by-the Chief Justice.
The court added, that in most cases it was of no moment to the defendant, whether the title was shown to be in himself or in a stranger. If the title was not proved to be in the lessors of the plaintiff, they could not in general recover. And where any thing had happened since the commencement of the suit, which rendered it inequitable that the lessors of the plaintiff should receive the possession, the more eligible mode would be to apply to the summary powers of the court for relief.
The plaintiff’s counsel insisted, that the act of assembly of the 3d April 1792, was unconstitutional, as to the provisions thereof in the 11th section. It abridged the judicial power of the courts, violated the right of trial by jury, and in the extent contended .for by the defendants, impeached former contracts. By the bill of rights, it is declared § 6, trial by jury shall be as heretofore, and the right thereof remain inviolate; and in § 17, no expost facto\mr, nor any law impairing contracts, shall be made. No legislative provision, is made, either under the act of 9th April 1781, (Bailey’s edit. 469. Loose Laws 423,) or of the act of 5th April 1782, 2 Dall. St. Laws, 21, or of the act of 8th January 1791, 3 Dall. St. Laws, 2, (by which the Board of Property has been differently modified,) or any other lex soripta that we know of, by which a fair hearing is secured to the citizens of the commonwealth, before this new judicial authority. It rests on the first section of the law of 8th January 1791, that the “ secretary of the land office is empowered to appoint days of heai’ing, and grant citations, at the reasonable request of any person or persons applying for the same or otherwise, as the case may require, ” or in the more general expressions of the act under consideration, “in manner heretofore used in this commonwealth.” 3 Dall. St. Laws, 213. It does not require a fervid imagination to conceive a variety of cases, wherein the most extreme injustice might be sanctified under this section, if [145]*145in its extent of operation, tho patent under tho determination of the board, i£ is to be and remain full and perfect title to the lands against all parties and privies to the caveat or suit.”
It is however possible that a more rational construction may be had of this section. It may be confined to lands vacant and unappropriated at the time of passing the act; and it may be said, with some kind of plausibility, that the commonwealth, as an individual, may sell their property on such terras as they may think proper. But this doctrine cannot hold, as to subjoining new terms to lands before contracted for.
The title of the act is ££ for the sale of the vacant lands within this commonwealth;” the preamble thereof alludes to unappropriated lands ; and the great body of the law speaks the same language.
A statute does not extend to cases within tho general words, though not within the meaning thereof. 4 Term Rep. 2, 4. — Where it introduces a new'jurisdiction, it shall be construed strictly. 1 Stra. 258. 260. 10 Co. 75. So where it takes away a remedy given by common law. 4 Bac. Abr. 650. Oftentimes cases within the letter of a statute are not within the seuse thereof, the sense being sometimes more confined and contracted than the letter, and sometimes more large and contracted. Powel on Dev. 140. The judges are to look at the words which the legislature have used, and to construe them according to the meaning, which it is most likely they entertained at tho time tho subject was under consideration. Leach’s Cro. Law. 387.
If upon the whole tho court should be of opinion that the section under consideration is unconstitutional,they are bound by their office to say so, without respect to consequences ; but if they should think that the generality of the expressions was intended to embrace no other objects than lands merely vacant, they will narrow them to these only; in either case it is hoped they will reject the patent in evidence.
The defendants in reply: A court of justice will be very clearly satisfied before they pronounce a law to be unconstitutional. The necessary consequence must otherwise be, that the judicial power must surmount the legislative. Where the legislative authority enacts a law, the office of a judge does not justify his inquiries into the prudence or danger, the wisdom or inefficacy of the measure, or whether in some possible cases, the execution of it may not produce ill effects to some individuals. Courts are equally bound by the will of the community thus promulgated, as any class of citizens. It is trae, where the intention of the legislature is clear, they may deviate from the [146]*146literal expressions, to effectuate that intention ; hut where the words are large and comprehensive, they will not on the ground o£ inconvenience narrow their construction.
The question then is, had the legislature a constitutional authority to enact this section ? They do not thereby abridge the judicial power or the right of trial, by jury ; the party against whom the determination goes, may enter his suit at common law within six months after-wards. It affects no prior vested right, nor impairs the obligation of of any contract. It merely operates as a limitation act, and in policy must be traced to the prevention of law suits. The rights of persons under legal disabilities are fully saved. It will not be asserted that the limitation acts heretofore passed are unjust, because they may in some instance operate against an honest claimant.
The act for the better support of the public credit, &c. passed 10th April 1781, § 9, (Bailey’s edit. 479. Loose Laws 480) limits a time .within which claims against the commonwealth are to be prosecuted for lands within the state ; and in default thereof the parties are utterly barred and excluded from all right of entry and title, in or upon such lands, or any suit whatsoever in law or equity for the same. This law likewise may bear hard against particular persons, but it is certainly defensible on the extended scale of public policy and general convenience. The like observations may be made on all bankrupt and insolvent acts, on the act respecting frauds and perjuries, on the act prescribing the mode whereby femes covert may convey their estates and many others. Individual, particular interests must in every well constituted society, give way to prudent regulations, calculated for the general welfare. On the act of 28th May 1715, e< for the assigning of bonds, specialties and promissory notes, ” it has been often ruled, that set-off may be made against the indorsees of promissory notes, of monies paid to their indorsers under the words of that law. These resolutions have operated severely against commerce, but have hitherto been acquiesced in from the necessity of submitting to the plain intention of an act of the legislature.
We cheerfully disclaim all legislative power ; but it will not be denied that we possess the right of putting such construction on the acts of the legislature, as appears to us best to accord with their intention,, either express or implied. Hob. 346. 11 Mod. 161. 4 Term Rep. 3, 4. Dall. 434. We cannot construe a law differently from the plain clear words of it, under any ideas of convenience or equity. 1 Term Rep. 101. Vaugh. 37,169, 285. 2 Ld. Raym. 1423. Arguments [147]*147ab inconvenienti only apply where the law is dubious. We possess also the power of declaring a law to be unconstitutional, and such power has heretofore been exercised. But we agree fully with the defendant’s counsel, that a very clear case only can warrant it. 11 Co. 63. 10 Mod. 115. Vid. 1 Bl. Com. 91. 3 Dall. 395. When such cases arise we shall not shrink from the decision. It is sufficient for us, on the present question to declare our opinion, that the 11th section of the act of 3d April 1792 does not extend to the case now before us. We do not much regard the title of the law; it is said to be no part of a statute. Hardr. 324. 1 Ld. Ray. 77. 3 Co. 33. 8 Mod. 144. 1 Bl. Rep. 95. But the preamble has considerable weight in discovering its meaning. Co. Lit. 79. a. Plowed. 369. 2 Co. 16. 9 Co. 105. Hob. 182. Though it will not control the clear and positive words of the enacting part, it may explain them if ambiguous. 4 Term Rep. 793. The declared object of the whole act goes to the unsold and unsettled lands within the Indian purchase at Fort Stanwix in 3.768 and the preceding purchases, and to the vacant lands, included in the Indian purchase of 1784 at Fort Mackintosh. All the provisions in the law go merely as to unappropriated lands, except that in the last section, it is directed that unsatisfied warrants issued under a former law, may be located on vacant and unappropriated lands. To comply therefore with the whole scope of the act, and declared intention of the legislature, the generality of the expressions in the beginning of the 11th section, “ when any caveat is determined,” &c., must necessarily be restrained to any caveat relating to lands then vacant and unappropriated. The clause in question cannot be extended, in our apprehension, to caveats respecting other lands, held under rights or contracts antecedent to the passing of this law.
The words of the section now under consideration, are not more largo and comprehensive than those used by the legislature in the 5th section of the act of 8th April 1785, (2 Dall. St. Laws 318. Loose Laws 569) “that in making any survey “by any deputy surveyor, he shall not go out of his proper district,” &c. Nevertheless, in the case of the lessee of Alexander Wright v. Benjamin Wells, at Washington, May assizes 1793, M’Kean, Chief Justice and Yeates, after full argument, ruled, that the expressions related solely to the lands purchased at Fort Mackintosh.
We give no opinion whatever of the constitutionality of the 11th section, nor to what cases it does extend; but we conceive it does not embrace the case before the court, and therefore the patent cannot be received in evidence.
Messrs. Duncan C. and D. Smith and Hall, pro quer.
Messrs. Ingersoll, E. and W. Tilghman and Thomas, pro def.
The defendant’s counsel thereupon desired the court to seal a bill of exceptions, which was agreed'to.
The testimony being at length closed on both sides, the defendant’s counsel moved for a nonsuit; but the court declared, that on complicated matters both of law and fact, the court would not direct a non-suit on the merits of a case, where material evidence had been given by the party against whom the nonsuit was prayed. They added, that the court would not order a nonsuit to be entered against the plaintiff’s consent. 2 Term Rep. 281. 1 Term Rep. 176. 1 Bl. Rep. 670. Vid. Dall. 18. To save time however, the court had no objection to declaring their opinion on the title. The plaintiff could not legally recover, as he had no official survey. Moreover the title of the de-, fendants was prior in point of time, and Messrs. Hubbley and company had agreed that their warrants should be postponed until Mr. Chew’s order on Eishing creek was fully completed. It was fully proved, that the survey for the latter, including the lands in question, was made in the latter end ef October 1773, and the notoriety of that fact was clearly'evinced by several office papers. The default of the deputy surveyors in not making the return into the surveyor general’s office, was not to be imputed to Mr. Chew, nor was his title affected thereby.
Only one of the counsel on the part of the plaintiff addressed the jury, who found a verdict for the defendants, agreeably to the charge of the court.
The ease is pul 2 Stra. 1056, and it ivas Hiero resolved, that the court would not stay the proceedings, for the plaintiff might go on for damages and costs. But it was admitted, that possession could not be obtained by the suit.