Lessee of Nicholas v. Holliday

By the Court. The papers offered come before the court in a very questionable guise, and wear a suspicious appearance. But let them be read, as was done last Circuit Court at Bedford, *in Dougherty’s lessee v. Piper, in a case resembling the *401] present. We will judge of their legal operation, and facts will arise on them, of which the jury are the constitutional judges. It appeared in the course of the trial, that Haldane and M'Kinley had in June 1764, conveyed their respective warrants to John Litle and Richard Tea, in consideration of 5I., and that the defendant, William Holliday, on the 25th April 1774, had entered into an agreement for 500 acres, part thereof at 20s. per acre. Explained in 4 Yeates 217. Cited in 3 S. & R. 350 to show that after a survey returned, no new survey nor the extension of the lines of an old suryey, can be made, without a new warrant, or order of survey; the former authority being functus officio. Cited for the same purpose in 4 S. & R. 295; 5 S. & R. 188, and 7 Pa. 72 ; 4 Watts 445. Cited on the practice of receiving 2-eceipts in evidence in 5 Watts 219. Referred to in 1 Watts 528, where the same land seems to have been in controversy. After the cause had been fully argued by Messrs. Duncan and Walker for the plaintiff, and Messrs. Hamilton and Watts for the defendants, the court charged the jury, that it was obvious the application for a warrant in 1763, before the system of' locations was adopted, did not authorize a survey. Neither could a warrant, directed to Mr. Smith, justify a survey and return by Tea, unless by the authority of the former. The act was inofficial. It is true, the late proprietaries might bind themselves by warrants issued in a new mode, but this departure from the usual forms of their land office must be shewn to have been intentional, by strong and cogent proof, otherwise the transaction would certainly give just cause of suspicion of unfair practice. And it is clear, that the proprietary officers could not by such unusual procedure, devest or affect the interests of grantees claiming under prior- rights, who had paid their money in confidence of such contract. With respect to the extension of the lines of a survey, the practice had been for surveyors to run and mark the boundaries on the ground, and afterwards calculate their contents. They could then add to or diminish the quantities surveyed on the closing lines. But if any great mistake had been made, careful surveyors usually went on the ground again and made new surveys, obliterating their former marks. After a survey was returned into the surveyor general’s office, the lines could not be extended without a new warrant or order of survey, their former authority being functus officio. But before such return, the surveyors might extend the lines of a survey made' by mistake, where no injury resulted to other claimants. Here the mistake was made by the agent of Tea himself, who surveyed only one half of the quantity of the lands called for by the warrant; the lines were extended by his direction, who claimed the lands thereby included. Quilibet potest renunciare juri pro se intro-dticto. Verdict for the plaintiff.