[394]*394The opinion of the court was delivered by
Rogues, J.
The plaintiff below has shewn a title to the property, regularly deduced from the commonwealth, and unless the defendant has exhibited an earlier and better title, he is entitled to recover. The defondant gave in evidence an application, dated the 9th April, 1769, on which a survey was made, but at what precise time does not appear, and which was returned into the surveyor general’s office, sometime in the year 1788, after which in 1793, he took possession of the premises.
The plaintiff’s title commenced on a warrant dated the 1st October, 1784, on .which a survey was made, and returned the 10th October, 1784, the court charged the jury, that the delay in the return of survey, from the7th April, 1769, to the 15th October, 1784, was unreasonable, and so pronounced it as a matter of law. They ruled that it was incumbent on the defendants to shew that this delay was not occasioned by his negligence or default. They were also of opinion, that he had not shewn that he did what was required of him, to entitle him to a return of the survey. If I understand the plaintiff in .error, he controverts the direction of the court on two grounds:
1. He contends that the title of the plaintiff was complete by the survey on the ground, although not returned.
2. He denies that the defendant abandoned his inceptive right to the land, and also says, that whether he did abandon it or not, is a fact for the jury, and not a question of law for the court.
On the first point the plaintiff in error says, the application of the 9th April, 1769, is descriptive; and it must for the purposes of this argument, be conceded that it is; for the court in effect say, that a desci-iptive application is a mere inception of title, and unless the applicant took the other steps required by the rules in force, under the proprietaries, applicable to such inceptions of title, he acquired no right. They further instruct the jury, that it was the duty of the person entering the application, to shew the land applied for to the deputy surveyor, to pay the surveying fees, and that before payment, the deputy surveyor was not bound to return the survey, that there was no evidence that Eronamus Henning, paid the surveying fees, and consequently, the deputy surveyor was not bound to return the survey, and the survey in fact not having been returned until after the plaintiff obtained his warrant and patent, Eronamus Henning and those claiming under him must be postponed.
For these principles, the authority of the Supreme Court in the [395]*395cases of Chambers v. Miflin, 1 Penn. Rep. 74. and Addleman v. Masterson, 1 Penn. Rep. 454, are cited.
A precisely descriptive warrant or application, gives title from its date, a vague warrant from the time of survey, provided it be followed up with reasonable diligence. The mere taking out a warrant or application, and procuring a survey without more gives no title, as is distinctly ruled in the two cases to which I have referred. It is necessary for the warrantee or applicant, not only to have a survey made, but he should, have it returned, otherwise, he will be postponed in favor of an intervening right. It would be unreasonable that the commonwealth in such cases, should be prevented from disposing of their lands, particularly in the case of an application, where no money has been paid.
When one party shews an indisposition to comply with engagements, the other is at liberty to consider the contract as at an end, and as this is the law as'regards thp contracts of individuals, it is equally the rule in the construction of the contracts of the commonwealth with its citizens. The application was made the 7th of April, 1769, and the survey was not- returned until after the 10th October, 1784, at which time the title of the plaintiff commenced. This is the case of- a title intervening between the survey and the return of the survey. Until the return of the survey, I cannot perceive how the commonwealth can proceed to collect the arrears of purchase money; and this was the'opinion of Mr. Justice Huston, as expressed in the case of Chambers v Miflin. How can the officers of government ascertain, whether the owner of the application, although precisely descriptive, has not changed his lines or location, or laid his warrant on some land in the immediate neighborhood, or abandoned it altogether? Could they compel the deputy surveyor to return the survey? He might allege that it was not returned, because the surveying fees'were not paid, and under such circumstances, that he is not compellable to return his survey, either at the instance of the owner of the application or warrant, or at the instance of the commonwealth. Until the return of survey, the title has not been thought so complete, as to be incapable of abandonment, by gross neglect or laches, nor has it ever been doubted, that as to that time, the applicant has a right, with which the commonwealth has never- attempted to interfere, to change its location, although a survey has been made on the ground. If this be the rule adjudged in the two cases referred to, and in others cited at the bar, it follows as a consequence, that where the applicant has been guilty of gross negligence, the commonwealth may act on the presumption of abandonment, and re-grant the land. This would appear to be the only remedy, for I recollect no instance where the commonwealth has ever attempted to collect the [396]*396arrears of purchase money, until the survey has been returned. That there may be cases where this might be done, I will not pretend to deny. The practice has always been to consider the land as derelict, and the subject of a re-sale, and this is a practice which the court should by no means discourage, as it tends to the settlement and improvement of the country. The counsel of the plaintiff in error, founds his argument on this part of the ease, on the principle that by the survey on the ground, the title of the defendant was complete. But this is an assumption without any authority to support it, for in addition to a survey, some other step must be taken, indicating an intention to perfect the title. Nor has a single case been cited, determined on a different principle. In Moore v. Shaver, 6 Serg. & Rawle, 180, it was' ruled, that on a loose warrant or application, even.when so vagueas that it cannot be referred to any particular part of the state, the title vests at the time, a survey is made on the ground. ¡But that in case of a shifted location, the commencement of the title is postponed, until the acceptance of the survey.
From this .case and others which have been cited, similar in principle, the counsel has inferred, that a survey on the ground, was all that was necessary to perfect the title. In all the cases, it will be found that the survey was actually returned, so that the question of abandonment from negligence, did not arise.' The great object of the court was to ascertain when the survey was made, and if returned in due time;from What period the title commenced, and in those cases, the court took the distinction between a shifted location, and a warrant or application which was loose as contradis-tinguished from a descriptive warrant or location.
A descriptive warrant commences from its date, a loose warrant from the survey, and a shifted warrant from the acceptance of the survey; but in each it is indispensable, not only that there should be a survey, but that the survey should be returned within a reasonable time,
I wish now to be understood, as speaking of a case where no steps have been taken, except making the survey; for if the owner of the application had, in addition, taken possession of the land, and made improvements upon it, that would present a different question. As a general rule, then, it is necessary that the survey should be returned'; but sometimes the omission may arise from the negli gence of the deputy surveyor. Where this appears, the rights of the applicant shall not be postponed, even in favor of an intervening right; and this is placing the owner of the application, on as favorable ground as he has any right to require. But as the law enables him to excuse the omission to return the survey, it at the same time throws the proof on him, and makes it his duty to show, that the [397]*397default was not occasioned by any negligence or default of his own'. Here, it is apparent, that no return was made until after the plaintiff’s title commenced; nor was there any fact given in evidence, from, which the jury would have been justified in drawing any other inference^ than that the omission to return the survey, arose frorri the negligence and default of the defendant. It does not appear that the surveying fees were paid, nor is there any evidence whát-ever of that fact, for the entry inthebook of Jasper Scull, purports to be a charge, rather than a receipt.'
It remains now to inquire, what is a reasonable time, within which a party may return his survey.
In Bonnet v. Deffebach, 3 Bin., 183, Mr. Justice Yeates says, that he would have no hesitation in saying, that a period of eight years would be too long a time to keep back a return of survey, under the peculiar circumstances of that case, so as to postpone an adverse title, fairly intervening between 'the survey and return. In Maus. v. Montgomery, 15 Serg. & Rawle, 224, Mr. Justice Huston says, that there is no case where.mere lapse of time has beqn held to divest the right, in less than three years. He thinks a longer period has been allowed. Within what period a„party is bound to return his survey, has not been precisely established. Circumstances have induced courts and juries to make different allowances, in different cases. Here a period had elapsed of fifteen years, when the plaintiff’s title intervened, and of twenty-four' years, until the return of survey.
Making every allowance for the peculiar circumstances arising from the shutting the lánd office, during the war of the revolution, We are of the opinion, that there was still such neglect as to postpone the defendant’s title, in favor of the plaintiff. For my own part, I should be unwilling to extend the term beyond the period of seven years; and eventually, perhaps, that will be the limitation On which the court will settle down, and that in analogy to the 5th scction~of the act of the 36th of March, 1785,.
The court gave it in charge to th¿ jury, that the delay in the return of survey, from the 7th of April, 1769, till the' 1st of October, 1784, was unreasonable, and they so pronounced it, as matter of law. As a general rule, the question of abandonment is a fact for the jury, for it is a question of intention, of which the jury alone, can judge; which, ordinarily, depends on a great variety of facts. In such a case, it would be error in 'the court to withdraw from the jury the decision. But when the question is one of time it is a question of law, and it would seem to me, that this is a case of the latter description. There was.no fact given in evidence, which in the slightest degree, tended to rebut the legal presumption of abandonment, arising from lapse 'of time. When there [398]*398are no disputed facts, it is the duty of the court to instruct the jury in what manner to find their verdict, as, otherwise, uncertainty in titles would be the consequence. A state of facts which, in the opinion of one jury, would give title, in the opinion of another, would produce a different result. In the Lessee of Duncan v. Curry, 3 Bin., 21, Mr. Justice Yeates, in the course of his opinion, mates use of this language. Evidence of abandonment is generally submitted to the decision of a jury, but it may often happen, that instances may occur of such abandonment, wherein the court may feel no difficulty in giving their sentiments to the jury, that the gross delay and laches of the party were conclusive on him. This happened in Penn’s Lessee v. Hepburn, and in "Duncan’s Lessee v. Willis, which were cited on the argument.
The law is an inference from facts, and when these are conceded, no dispute can arise which calls for the decision of a jury. When the question of abandonment arises from gross delay in not returning a survey, and there are no facts which tend to rebut the legal presumption, then it is not only not error to instruct the jury that the law will presume an abandonment, but it is the duty of the court so to direct them, as a conclusion of law. And this I apprehend is not only the common practice, but is absolutely necessary, to ensure a uniformity of decision, which is essential to the due administration of justice.
On the 15th January, 1812, this action having been tried in Berks county, a verdict and judgment was rendered for the defendant, upon which a writ of error was issued to May term, 1812. The 29th May, 1813, the Supreme Court reversed the judgment of the Common Pleas. The 31st July, 1826, the transcript of the docket entry of the suit in Berks, was filed in the prothonotary’s office of Schuylkill county. The 28th of July, 1829, the record of the suit, which remained in the Supreme Court at Lancaster, was transmitted to Schuylkill county. The 23d of July, 1830, the defendants offered to put in a pica to the jurisdiction of the Court of Common Pleas of Schuylkill county, and also to plead that the suit had been abandoned and discontinued under the above stated facts. This plea the court over-ruled, of which the plaintiff in error complains.
On the reversal of the judgment either party might have taken back'the record; but as long as it remains in the Supreme Court, the action is still pending. I know of no rule or practice which gives the effect of a discontinuance to a suit, under such circumstances, and no decision has been cited to this effect. If the defendant had wished the cause disposed of, he might have taken the record down and had the cause ordered for trial. Not having taken any,stops in the cause, he acquiesced in the delay, and has no reason to complain.
[399]*399We are of opinion on the whole case, that the judgment should be affirmed.
Judgment affirmed.
The following opinions of the court in the above case, delivered in 1813, when the Supreme Court reversed the judgment of the Court of Common Pleas of ¡Borles county, upon a verdict in favor of the defendants, have been obtained by the reporters, and as they have never been published, and the points involved are of much interest, they are inserted here.
TiiGHjrair, C. 3. — The plaintiff claimed under a warrant to Jacob Miller, dated the 1st of October, 1784, for 400 acres of land, a survey for Michael Gunlcle, of 421 acres and 116 perches, October 19th, 1784, and a patent to John Shaeffer, dated the 10th of January, 1786, bn which there is a recital of the conveyance, transferring the title, from the warrantee down to the said Shaeffer. But those conveyances were not produced.
The defendant made title under an application, in the name of Eronamus Hen-ning, dated the 7th of April, 1769, for 300 acres of land “over tlfe Blue Hills, joining. Bobert Delap, on the westernmost branch of Big Schuylkill, Berks county.” There was no evidence of any order of survey on this application, until after the year ,1783, the precise time of issuing this order, was not ascertained; but a survey was made by William Wheeler, deputy surveyor, on the 13th of October, 1788. It was returned by Wheeler as a re-survey, and contains 374 acres 31 perches. Parol evidence was given of the lines of an ancient survey,-which must have been made at [400]*400a time, not far distant from the date of the application. No application, warrant or survey, in the name of Mobert'Delap, was to be found in the office of the secretary, or surveyor general' — but a paper was offered in evidence, containing a draught of several adjoining surveys, one of which was in Delap’s name; this draught appeared to be the work of William Scull, formerly a deputy surveyor in Berks county; and there was evidence which rendered it probable, that it had been among the office papers of the deputy surveyor of that district. The court permitted it to be given in evidence, although objected to by the counsel for the plaintiff, and a bill of exceptions was taken to their opinion. As evidence of title, I do not think this paper was admissible, but as a circumstance throwing light on the description in Henning’s application, it was. It is possible that no official survey was ever made for Delap, but that there had been an authorized survey of land intended to be taken up; this is putting the matter as strongly against the defendant as the case deserves. _ Yet still, it might serve to designate the spot on which Henning intended to make his survey, and if it had been made and returned, there is no doubt but the officers of ther proprietaries would have accepted it, the whole truth being disclosed to them; although Belap listA never applied for the land, which he had intended to take up. There was no error, therefore, in permitting it to be given in evidence.
There are three errors assigned in the Judge’s charge to the jury.
1st. In his saying that the evidence of John Dreher, was very important.
2nd. In his not charging that the, order of survey issued after the year 1783, oír the application of Henning, was conclusive evidence that no survey had been made before.
3d. In his mistaking the nature of Henning’s application, which was so loose and uncertain,, that under all the circumstances of the case, the title did not attach tiff the return of survey.
1. A material inquiry in this cause was, at what time there had been an official-survey on Henning’s application. When Wheeler made the survey in 1788, marks of an ancient survey were found, The evidence of Dreher went to show those marks, and all that the judge said was, that “the testimony of Dreher was very important to that point.” That it was important to that point is evident, and it is also evident that it was a point proper to be inquired into. This leads to the consideration of the
2nd Error assigned in the charge: Was the order of survey, after the year 1783, conclusive evidence that no former order bad been issued?
In my opinion, it was strong evidence, but not conclusive. There might have been a former order issued, tlie evidence of which had not been preserved in the land office. The papers of that office have been subject to unsafe keeping, and frequent removals. The acts of the officers are not to be found in books where every transaction was regularly recorded; but the evidence of those acts often rest on-detached papers, preserved in files or bundles, and of course subject to accident and loss. It would be carrying the case (then) to a dangerous length, to say that because no order of survey was to be found prior to the year 1783, therefore, it must be taken for granted, that no such order had ever existed.
The 3d error assigned, turns on the nature of Henning’s application. On this point, the charge is to the following effect: “If the application be descriptive of the land in question, and the survey made in fact, before the date of the warrant under which the plaintiff claims, although not returned, the defendant would be entitled to retain the land, so if it describes the land with sufficient certainty.” It has been objected that by this charge, the jury might have been led to believe, that if a survey had been in fact made without authority before the date of the warrant, the defendant would be entitled to the verdict. But this is not treating the charge with-that candor and lib erality, to which it is entitled. We must not exercise grammaticaS [401]*401criticism in order to destroy the substance of the opinion. The whole charge is to be taken together, and its import fairly considered. I have no doubt of its true meaning, a survey made by lawful authority was intended; and if the plaintiff’s counsel had considered the expressions as doubtful, or equivocal, they ought to haye brought the point immediately before the mind of the judge, at the time of the charge, by asking explicitly whether the defendant could support his defence under a survey made without authority. Let us consider, then, the nature of the descrip, tion in Hennings application. “300 acres over the Blue Hills, joining Robert Delap, on the westernmost branch of Big Schuylkill.” It is loose in the extreme in every part, except the joining of Robert Delap: no trace has been found of any right ia Robert Delap, by warrant, application or survey, in the proprietary’s office. Still he might have been owner of a tract taken up by some other person; but I do not find that there was evidence of any person of that name, having owned, claimed or resided upon the land adjoining the defendan^s.survey, or any kind of evidence on the subject, except the old draft of William Scull, which has been before mentioned.
Now suppose a man of the name of Delap, had caused lines to be run by the deputy surveyor without authority, with a vjew of entering an application, which he never did enter, that he relinquished his intention, and never had any thing to do with the land. Under those circumstances-, ought the location calling for Delap’s tract, to be considered as such a description as would give title to the defendants immediately on the making of their survey, although that survey was not returned for nearly twenty years afterwards? A thing is certain which may be rendered certain by reference to other things. The reference here, was to Delap’s traet. But no such tract being to be found in the land office, how were the officers to know of it, and if no such person as Delap, lived on the land or claimed it, how were the public to know it? and if it were impossible to obtain a knowledge of the spot which Henning meant to appropriate; and the matter.remained in this uncertainty for fifteen years, when Jacob Miller purchased it of the commonwealth, is it reasonable that he should lose it? What is the use of a description, but to apprise other persons ofthe situation of the land described? It appears to me that this point was not submitted to the jury, in such a manner as to make them understand the law. They ought so' have been told, that if the description was of such a nature as to afford no reasonable means of ascertaining the situation of the land, until the return of survey, in such casé, the defendant’s' title must take date from the time that the survey was returned; because this survey was not returned in a reasonable time. I think, too, that it would have been proper to inform the jury, that they were to judge whether the delay of a return of survey, was not occasioned by the neglect of Henning, or those who derived tide under him, because it appears very doubtful on the evidence, whether any order of survey was taken on this application, before the year 1783, and if it had been, it might have happened as was frequently the case, that in order to avoid paying the fees and expenses of survey, he suffered the return to be postpohed; such serious inconveniences arise from long protracted returns that it should always be inquired, by whose fault the delay Was occasioned. We know very well that no more than seven shillings being paid on the entry of an application in the year 1769, she-applicant sometimes relinquished the land, and where such was the intention, he ought not to be permitted to revive his claim after the lapse of many years, when the land has become valuable, and another person has taken it up and paid for it. In this part of the judge’s charge, then, I think there was error.
But it has been urged, on the part of- the defendant, that it appears on the record that the plaintiff showed no title, and therefore the cause ought not to be sent down for another trial. The defect of the title alluded to, is in not producing the deeds of conveyance prior to the patent, which are recited in the patent. These recitals, it is said, are no evidence against the defendants, but that is begging the question in dis[402]*402pute. The defendants claim under the commonwealth. The recitals are the confession of the commonwealth, therefore, they are evidence against the defendants, if their title commences after the date of the patent. If the title of the defendants, then, commence from the return of their survey, the recitals in the patent are evidence against them: so that we are brought back to the point whether,under the circumstances of this case, the title of the defendants takes date from the entry of their application or the return of their survey; my opinion on the whole, is, that the judgment be reversed and a venire facias de nova awarded.
Bhackekuidge, J. — The principle would seem to be correct, that on a verdict for the defendant, and a writ of error by the plaintiff, where it appears from the record, that no judgment could be rendered foivthe plaintiff, it will be to no purpose to reverse that for the defendants. Want of jurisdiction in the court, unlawful cause of action, net forth in the declaration; want of evidence to sustain it, appearing from the facts stated in the plaintiff’s bill of exceptions, may effect this. The plaintiff in his bill of exceptions states an equity out of the commonwealth to a certain Jacob Miller, that is sufficient to defeat the patent of the plaintiff, unless he can show the equity of Miller to be in him the plaintiff. The plaintiff must recover by his own strength, and if Miller’s right is not in him, it must be against him. But he shews the equity of Miller to'be in him, by shewing it to be m a certain Gunlcle, and Gunkle’s right to be in him, the plaintiff. This he shews by recitals in the patent to himself. Can these recitals be evidence of the transfers so recited? Let us see how this stands? An equity in Miller, by warrant. This equity in Michael Gunkle, by a survey in right of Jacob Miller; a patent from the commonwealth to John Shaeffer, the plaintiff in right of Michael Gunlde, in right of Jacob Miller. Who has a right to question the right of Miller being in Gunkle, but Miller or some one claiming under Miller? And who hag a right to quésíion the right of Gunlde being in Shaeffer, but Gunlde, or some one claiming under Gunkle? It is not Miller, or any claiming under him, that questions the transfer to Gunkle. Nor is it Gunkle, or any claiming under Gunkle, that questions the conveyance to Shaeffer.
Shall it lie in the mouth of a third person, to say to Shaeffer, you have not the equity of Miller in you, when the commonwealth, granting the legal title, says: I have seen these conveyances, or other evidences of transfers, and I am satisfied that he has? But a third person might say: I have an equity under the proprietor, the former owner of the land or under the commonwealth, since and before the equity of Miller, to which your patent from the commonwealth refers. Shew that, and there is an end of it. But what have you to do with the chain of title from Miller to Sheaffer, when the commonwealth, with whom the legal title lay recognizes Shaef-fer as entitled to the legal estate in right of Miller?
It js every day’s practice in the land office, that a patent is granted to one, on the inception of a title, or original equity of another; and the courts of law do not inquire why so granted, but at the instance of one who has a right to inquire. And this must be one who claims under the same equity. The principle that one cannot derive title to himself, by the recital of a grant from him who had title, is correct. But it is the person having title, that grants here reciting the consideration of the grant jo one on an equity to another. It is sufficient for the grantor to be satisfied, that the equity out of him to A is now in B, and in consideration of this, he makes the legal estate to B. In whose mouth does it lie, but in that of A, or one claiming under A, to contest this equity, and that the right to receive the legal estate is in B ? B must first show to a court of law, an inception of title or equitable interest in A, but what stronger evidence can there be, or at least, what other evidence shall be demanded, but the acknowledgment of him in whom the legal estate is, that the [403]*403equitable interest in A, is now in B. It is A, or’those claiming1 under him, that can alone contest this.
So the commonwealth reciting an equity in Miller, would be no evidence of that equity against a third person, claiming an equity also under the commonwealth. But the equity in Miller must be shown to be out of the commonwealth, before the equity to him, the third person had attached, because the fact of the equity being out of the commonwealth to Miller, and the dale of that becomes important. But here the equity to Miller by warrant, and the date of that warrant has appeared. This is the doctrine the judge laid down, and I think it is correct.
We proceed, then, to consider the grounds of error, which have been assigned in the judgment for the defendant. Was it error, to admit a paper purporting to be a draft of lines run, with the name of Delap upon it, the application of the defendant calling' for Delap, as adjoining that, for which he made the application? It is a paper that bears the marks of age upon the face of it. I speak of the paper- itself, distinct from the lines or writing’ upon it. It has an air of antiquity in the texture, and no recent water-marks of modern impression are visible.. But the ink of the lines impressed upon if, is faded by exposure to the air, and length of time. The Writing upon it, is proved to be of those long since deceased. 'Its decent is .through the medium of an office. It would seem to have once been in the hands of an officer for some purpose. It is not just the same as if it had been found in the trunk of an eld inhabitant. Though even in that case, lines being found upon the-ground, corresponding or nearly so, with the date of the application, which refers to it, could it b'e said that it did not contribute some evidence to show the place of the application? It would seem to me, therefore,, that it was admissible, so far as respected boundary. This being so, the judge would not seem to have erred in considering the- testimony of the witness tracing these lines to be of some importance. J would not reverse for error in the less or more importance, which he attached to it. The only question can be, was it evidence, and had some bearing on this case? as evidence of boundary or description, it would seem to be evidence. An order of survey is not conclusive that it was not in fact a re-survey,- but it is presumptive of it, and will stand until the contrary appears. The judge, therefore, did not err in refusing to charge the jury that it was conclusive.
Bubit is said that no evidence is shown to rebut the presumption, that it was not a re-survey; for it could not be called a. re-survey, unless an official survey had been originally made. That it was an official survey we have no evidence, farther than that it was made about the time of the application. It is very dear from the testimony, says the judge, “that a survey had been made of the land in dispute by somebody, about the time of the application.” It is not left to the jury to say whether this survey w;as an. official act, made by an authorized agent or otherwise: they had no evidence’that it was an official act, but that of being made about the time of the application. The judge might have it in his mind, and mean to distinguish, and to leave it to them to say, whether they could infer from this circumstance that it was an official act? But it is not clearly distinguished in his charge, what it was that was left to them; and the material point in this case was, whether the survey-was an official act or not. For if not official, the return only would be a recognition, and render it of any effect. His language is, “If the application under which defendants claim, he descriptive of the land in question, and the survey made in fact, before the date of the warrant under which plaintiff claims, although not returned, the defendant would, be entitled to retain the land.” Now if made to fact by proper authority, was the only ground on .which, without a return, it could have this effect. And the single consideration of being made in fact by somebody, would not t>e sufficient. This would not seem to me to have been put so distinctly to the jury by the judge, as to enable ihem.to comprehend the difference. And yet the difference is immense; and in one [404]*404case gives a validity to the survey, without a return-, in the other the return only, and receiving it into fhe office can be equal to a preceding authority. The counsel would seem to have erred in not putting this distinctly to the judge to say, whether a survey 'without authority or with. They took it for granted probably that he meant to speak of a survey by 'oficial authority,- and it is probable that he did mean this. But it is not clear from what he said, how the matter was. Shp.ll we reverse, then, because the language of the judge is ambiguous, and it does not clearly appear what was left to the jury, whether the fact of a survey, or th.at of a re-survey by authority? Of the fact of a survey there would be no question; but of the fact of a survey by authority was the only material question which existed, and which we must presume him to have intended to have submitted to the jury. What evidence the jury had of this was very slight; the mere circumstance of which the judge takes notice that a survey in fact had been made about the time of the application. However, this is not a motion for a new trial. And it must be an error, manifestly apparent, on which a judgment can be reversed. .But there is such a thing as abandoning even the equity of a survey made by authority, by not procuring a return, and giving publicity to the official act. The commonwealth in such cases might be let in to grant to new purchasers the land, for which an equity had not been followed up, by occupancy or other evidence of appropriation. It does not, therefore, absolutely follow that, even supposing a survey made by authority, the defendants were, at all events, entitled to retain the land. 1 think the judge erred in not making this a consideration to the jury, or deciding cm. it as a question of law, if mere time only was in question in the case, unless excused by the war, or other circumstances, I would think the time here sufficient to justify the commonwealth in granting to other purchasers, and taking money for the warrant, ordering a survey, and granting a patent right. If so, the judge erred in laying it down generally that taking the application to be reasonably descriptive, and the jury even to find that the survey was made by auffiority, before the return, the defendants would ofcoursebe entitled to retain the land. On this ground, therefore, 1 am of opinion to reverse the judgment.
Judgment reversed, and venire facias de nova awarded.