author: Ross. J.

text:
    BIXLER for the use of A. GOCLEY, against CURTIS REAM.
    IN ERROR.
    Where B gave a bond to A, conditioned to pay a hundred pounds on the 1st April . 1810, in which C made the following endorsement: “10 April, 1817, I do hereby agree, that the within bond shall be paid in one year after the above date witness my hand the day and year above written,” which was signed by C. Held, that without proving a promise by A, to forbear to sue B, or shewing' some other consideration; A could not recover from C on this agreement.
    ‘Writ of error to the District Court of the city and county of Lancaster.

    This action was brought to recover from Curtis Ream the amount of a bond given by his father Henry Ream to Margaret Bixler, conditioned to pay one hundred pounds on the first of April 1810, by reason of the following endorsement thereon: i£10fh April, 1817. I do hereby agree, that the within bond shall be paid in one year after the above date, witnesss my hand the day and year above written. CURTIS REAM.
    The question which arose in the court above was, whether there was a sufficient consideration for the agreement of Curtis Ream.

      JV. Hopkins, for the plaintiff in error.
    An agreement to forbear a suit is a good consideration,' Hamak•er v. Eherly, 2 Binn. 506, this agreement must be for a fixed or reasonable time. 1 Penn. Rep. 383. 11 Serg. fy Lowber, 53. Without the endorsement, Margaret Bixler would have had the right to sue at the time it was made; with it, she could not sue until the expiration of one year. This.-was an inconvenience to Margaret Bixler, and a benefit to Henry Ream, which amounts to a good consideration. An inference necessarily must be drawn form-the promise to pay, that time was given for the payment of the-bond. 1 Johnson’s cases, 322. 1 John. Hep. 580. 4, John.. JHep. 42. Boyd. v. Gordon, 6. Serg. 8? Hawle, 53.

      Champneys for the defendant in error,
    Contended that there was nothing in the agreement of Curtis Hearn, on the bond, to prevent the obligor suing Henry Ream before the expiration of the year. That a parol promise cannot be sustained without a consideration appearing either on the face of the agreement as from other testimony. He cited 4 John. Rep. 280. 8 John. Rep. 31. Powel on contracts 199,213. Whitall v. Morse, 5 Serg. <§■ Rawle, 358.

      J. Hopkins, in reply.
    The consideration of the agreement is apparent upon the face of it. The endorsement is-conclusive evidence that the agreement was written with the consent of Mrs. Bixler. The advantage gained by the obligor was the forbearance to sue for one year and the inconvenience of the obligee was being prevented from the recovery of the amount during that time.
   The opinion of the court was delivered by

Ross. J.

Several exceptions have been taken to the opinion of the judge of the district court. The principle one is, that he decided, “that the consideration of the bond cannot atone for the want of a consideration, of the agreement to Curtis Ream, endorsed upon it. The defect is. fatal; and the agreement therefore creates no duty on the defendant to pay the bond.-’5 And he further-decided that the agreement on which plaintiff rests his claim, is a naked agreement in writing without alleging any consideration whatever, and is therefore insufficient and bad in point of law. In order to sustain the errors assigned, it has been contended, that the endorsement should be assimulated to. a promissory note, and should be governed by the same principles and- decisions, as areapplicaple to those instruments. That the same reasons which exempt promissory notes from the rules governing parol promises and, which require some consideration to render them valid, apply with equal force to the writing in question. It has also been further contended, that every note from the subscription of the draw-er, carries with it an internal evidence of a good consideration;, and that the bonds on which the endorsement in this case is made,, is sufficient to presume a consideration of forbearance. These positions will be found not to be warranted by any of the decisions, on this subject. A promissory note made according to the custom of merchants and negotiable at law, is placed- on the same footing with foreign and inland bills of exchange, by- ®thc Sd and 4th of JLnne, e. g: a negotiable promissory note is an express promise reduced to writing to pay a person named in it, orto his order, or to the bearer, a certain sum of money at a certain time or on demand. And it if commonly expressed to be made for value received. These words though proper are not necessary. If it appeared, that there is no sufficient consideration for it in contemplatioit of law, it will be void, and considered as a gratuitous promise, or nudum pactum, as between the maker and the payee. 5 Pick. 391-17 Johns. Rep. 301. As soon as it is endorsed it resembles a bill of exchange. This writing or endorsement is not to pay a person named in it, or to the order of a person named in it, or to bearer a certain sum of money. It is therefore not a negotiable promissory note; and it never could resemble or assume the character of a bill of exchange, and consequently does not come within the provisions of the statute of Anne. Neither can it be construed differently from any ordinary agreement in writing not under seal. The reason which is given, in many of the cases, is not correct; that the subscription of the name of the drawer, of the note, renders it valid without any consideration. The true reason will be found in Laussat's Foub. 272, which is, “that the law does not give to promissory notes and to bills of exchange, the effect before stated in respect of the undertaking being evidenced by writing; but in order to strenghthen and facilitate that commercial intercourse, which is carried on through the medium of such securities. It is therefore evident, that the promise being in waiting, does not obviate the necessity of a consideration. The generai rule in reference to the necessity of a consideration to support a promise, is, that a consideration of some sort is requisite in order to supportan agreement, though evidenced by writing; unless such writing be of the solemnity of a deed or bond; or unless, it be negotiable, or unless third persons have become interested with the knowledge, or approbation of the person binding himself, Winthrop. et als. v. Survivors of Lane et al. 3 Dal. 341. The endorsement in this case is neither a deed or a bond, neither is it negotiable, nor have third persons become interested with Curtis Ream’s consent, knowledge or approbation. But on the contrary; Margaret Bixler at the time of the assignment of the bond told Abraham Gockley, that the defendant Curtus Ream was not bound by the agreement. A consideration is either express or implied. An express consideration is where it is distinctly declared in the contract. A consideration is implied where an act is done or forborne at the request of another, without an express stipulation, in which case the law presumes an adequate compensation for the act on forbearance to have been the inducement of the one party, and the undertaking of the other. Foub. 339, note, There is no express consideration declared in -'this endorsement. but it is contended, that it may be implied from' the circumstance of the bond, upon which the endorsement is made, being under seal, and given for a valuable consideration. And that this consideration of the bond, when connected with the endorsement, raises a presumption of a consideration having passed at the time of endorsing the agreement, especially as the promise is in writing- and made by the son. It has however been decided, that a written promise by a son, not under seal, to pay the debts of the father, is nudum, pactum unless some direct consideration moved to-him from the creditor, or the latter had bound himself to forbearance, or the like on the faith of the assumption. Parker v. Carter, 4 Mumford 273. Sec 2 Henry Mumford 124. Lauss. Foub. 273. So $hat the promisor being the son does not dispense with the requisite consideration. In Aldridge v. Turner, 1 Gill. & Johns. 427, it has been decided that the endorsement of L. on the promissory note of E. payable to A. as follows, “I hereby guarrantee the ultimate payment of the within note” is void for want of consideration, and under the plea of non assumpsit to a declaration founded upon that guarrantee, the objection to the want of consideration, may be taken.

In the case under consideration, there Was no agreement on the part of the plaintiff to forbear; and yet sueh an agreement must have been made in order to impart to it any colour of consideration, arising from forbearance. There was no request made of the plaintiff by Ctirtis Ream to forbear; and therefore any forbearance to sue, was a mere gratuity, and was not binding on the plaintiff. There was no' special request on the part of Curtis Ream to forbear, either laid in the statement, or proved on the trial; and therefore any forbearance of the plaintiff could not make a valid consideration. For in all cases where a consideration is implied, from a request to do the act, which was done, it must be a special re-? quest. If the plain tiff intended to rely on this, he should have proved it on the trial. When an actual request is essential to the support of an action, a special request must be stated, and it must be shewn by, and to whom, the same was made, and the time and place of making it, in order that the court may judge whether the request was sufficient. 1 Chitty Plead. 324. Stra. 89. 14 East. 300. 1 Rep. 459. If the act of assembly of 1806, authorizing the filing of a statement, has dispensed with the necessity of setting out such request therein, it must nevertheless be proved on the trial, before the plaintiff can be entitled to recover on the ground of such a consideration.

The law is well settled that some spark of consideration must be shewn in order to support a claim founded upon a promise. The smallest spark of benefit or accomodation is sufficient to create a valid consideration for a promise, but still that spark must be so alive as to be seen and discovered. Austin v. M’Clure, 4 Dal. 226. 4 Johns. Rep. 239. In this case' however, there has not been even a spark of consideration shown. There have been no facts presented from which an implied consideration could be fairly infer_ ed. The judgment of the court below must therefore be affirmed

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J. Huston, J.

license: Public Domain

text:
    SNYDER Administrator of REIGART with notice to WHITESIDE, terre-tenant, against the COMMONWEALTH, for the use of PASSMORE.
    IN ERROR.
    The lien of the official recognizance of a sheriff nnder the act- of, 1803, is unlimited both in duration, and extent.
    Error to the District Court for the city and county of Lancaster.

    This was a scire facias upon the official recognizance of Henry Reigart, a former sheriff of Lancaster county.
    The suit was brought in the name of the commonwealth- of Pennsylvania for the use ofJ. Passmore, late prothonotary, &c. against Jacob Snyder, administrator of Henry Reigart, deceased, late sheriff of the county of Lancaster, with notice to John Whiteside owner and terre-tenant of the lands and tenements which belonged to Henry Reigart, and are bound by his recognizance &c. On the 19th of October, 1812 the recognizance of Reigart was taken, and he was commissioned on the following day sheriff of Lancaster county, in which office he continued for three years. ' This suit was brought on the 26th of September 1827, and Whiteside the terre-tenant, to whom the real estate of Reigart was conveyed by deed on the first of April, 1822, took defence and contended that the lein of the recognizance expired in five years from its date, and that therefore the lands purchased by him were not bound. The district court decided that it did not expire, and that they were bound, and-to the judgment of the court upon a verdict in favor of the plaintiff in conformity with that opinion the defendant took this writ, and assigned for error this opinion of the district court.
    The cause was argued by

      Montgomery and Norris for the plaintiff in error,kind

      Rodgers and Bnchanan, for the defendant in error.
   'The opinion of the court was delivered by

Gibson, C. J.

The question arises on the Act -of 1803, by which it is declared that the lands of a sheriff or coroner shall be bound by his official recognizance as effectually as by a judgment of the Common Pleas; whence it is said that it was not intended to bind them more effectually, nor for a longer period: and it is demanded, if the object was merely to create a lien without limiting it, why was it not said so in terms and without reference to the attributes of a judgment? It might be demanded with equal reason on the other side, if the object was not only to ereate a lein but to limit it, why was not that also said in terms? The truth is, there is a fashion of speech peculiar to public bodies, as well as particular classes, 'which is followed as much from habit as for convenience, -of which, the perpetual recurrence of set forms of expression in successive enactments on the same subject, is a frequent example. So far was a judgment from being employed to represent the general properties of a sheriff’s recognizance and by consequence to denote, as it is supposed, a limitation of the lein-, that it was introduced into the legislation on the subject, for a distinct and opposite purpose, and at a time when the lien of the particular judgment put as an example, was without any limitation whatever. A limitation in point of duration was affixed to it in common with that of judgments in the Common Pleas, by the act of 179S, and in point of extent the year following; but the legislature had enacted in 1790, that the recognizance of sheriffs and coroners should be “in the nature and effect of judgment obtained in the supreme court,” and that they should “bind-the lands, tenements and hereditaments of the said sheriffs and coroners in the same manner as such judgments* 2 Dal. Laws, 771. Now it is well known that a judgment of the Supreme Court, bound the lands of the debtor, at that time, all over the state, while a judgment of the Common Pleas, bound no more than those within the county; and it was evidently not to put those recognizances on a footing with judgments in any other respect than as regarded the range of the lein, thatthe word judgment was mentioned at all, nr in preference to a mortgage which was rendered unfit for the purposes of illustration by the specific nature of its lien. They were not declared to be judgements in contemplation of law, nor put on the footing of judgments, like recognizances at the common law, but they received from the legislature only one particular property of the judgment of a particular court instead of the propporties which were common to the judgments of all the courts. But even when the legislature thought proper to divest the judgment of the Supreme Court of its pcctiliar property, as was done in 1799by restraining its lien to lands within the county, no one dreamed that the act had produced a correspondent restriction in respect of these recognizances;r'yet that effect would have been rather more natural than the one insisted on here. That no restriction was actually intended., is -manifest in the provisions of the act on which the question for discussion arises, by which, though passed still later, the léin is restrained in its widest extent. If •however no alteration in any respect was intended to be made by this act of 1803, why, it may be demanded, is there an alteration in the phraseology? 'Simply because the lion of judgment in the Supreme Court, having in the meantime been restrained to lands within the county, had ceased to answer the purposes of illustration, any better than a mortgage; and the legislature consequently-had recourse to the instance of simultaneous judgments of all the county courts in the state, to signify what had been less awkwardly signified by instancing the judgment of a court whose jurisdiction was commensurate with the state itself: and the form of enactment was varied no further. “Jill the lands tenements, and hereditaments, which such sheriffs, coroners, and their sureties, shall posses or be entitled to in every county within this commonwealth.” Say the legislature shall be bound by a recognizance taken in manner aforesaid, as effectually as a judgment to the same amount, in the court of Common Pleas of all the counties aforesaid, might or could now bind the same.” was not the intent of this to give a lien on the lands of the cognizors, all over the state, and was not the lien of simultaneous judgments in the county courts, resorted to as an illustration, because it was peculiarly familiar to the general apprehension, while it excluded the notion of restriction which would have been suggested by a reference to a mortgage or any other specific lien? of the actual intent, there cannot be a doubt. The word now is senseless if it be not taken to have been predicated of the change that had taken place, by which it had become impossible to create a lien of indefinite extent by the instrumentality of but one judgment. Whatever may have been the policy of the legislature in regard to other liens, -its disposition is apparent in all the legislation that has taken place on the subject; particularly the act of 1790, has been to increase the effectof the security; never to decrease it; and we are bound to give the present Act which is a remedial one, an interpretation that will best correct the mischief intended to be repressed. Why then should we lay,hold on particular expressions in defiance of their obvious meaning, in order to bring the lien under the operation of a law, which was enacted in reference to a different subject, and whose provisions are applicable, in their letter and their spirit, but to judgments in the common acceptation of the word? The inconvenience of having the land tied up an indefinite time, and the necessity there might be for postponing the settlement of the estate after the cognizor’s death, are the only reasons that have been offered on the score of policy to dispose the mind towards such a construction. The number of the estates thus fettered, is, however too inconsiderable to render the inco.nvenienee a general one; and it is incomparably small when1 weig:hed with the injury that would be done to a countless number of persons by impairing the security. The construction contended for would place these in a situation infinitely more precarious than that of a judgment creditor, who may, by diligence, preserve the security of his Men till satisfaction had; but it is not pretended that the'lien of this species of recognizance might be revived as in the case of a judgment: and thus a cause of action which had been dormant because undiscovered until the expiration of two years from the completion of the official term, would be excluded from the benefit of the official security. Many eauses of action are overlooked for that period, or in fact do not arise within it. Indeed by strict analogy to the lien of judgments as it now stands, to originate an action on the recognizance within the five years, would not preserve the lien without a prosecution of it to judgment within the same time, and even then it would be the lien of the judg.ment, and not of the recognizance that could be looked to, to hold the land for a longer-time. Judgments are to be revived periodically; and if it be said that sin action will perform the office of a scire facias to revive the lien of a recognizance once for all, the applicability of the act is denied or its provisions must be violated. That is not all; suits against sureties in these recognizances, are limited to five years, while no limitation is affixed to the responsibility of the principal as regards either his person or his land, yet the construction contended for, would give him the immunity of a surety in every respect but that of personal liability, which, it seems to me, would be contrary to the manifest intention of the legislature. I am of opinion therefore that the lien of these recognizances, is unlimited both in dura-* tion and extent. <y '

Huston, J.

This ease is not clear pf doubt, but I would say the lien of the sheriff’s recognizance is gone in all cases where suit is not commenced within five years from its date.

If the matter depended on the fourth section of the act of the 28th March, 1803, there would be more difficulty. All the lands ¿pc. which such sheriff, coroners, and their sureties shall be entitled to in every county in the commonwealth, shall be bound by such recognizance, as effectually as a judgment to the same am’ount in all the counties might or could now bind the same: and the proviso that no suit against the sureties shall be sustained unless the same be commenced within five years from the date of such bond or recognizance, leaves it equivocal. The proviso is more extensivo than the lien, it not only relieves the land of the sureties from lien, but releases the surety from suit.

By the act of 4th April, 1798, the lien of a judgment ceased at the end of five years. It is asked of us to make this recognizance Which by the law is equal to a judgment, much superior to it. We must always take it that the legislature knows of existing laws. In this case we are sure the act of the 4th April was before them, for first they say “as effectually as a judgment might or could now bind, and secondly the fourth section of act 4 April 1728, is expressed by a limitation of the liability of sureties in bonds of public officers, and by it the limitation is seven years from the cause of action — this by act 2Sth March, 1803, is limited to five years from date of bond, hence I would infer that the legislature knew a judgment then bound only five years and said a recognizance bound only for same time. It is said no sci.fa. can issue to continue the lien of this recognizance. I answer it was not intended to be continued when we consider that this lien extended over the whole state, and might affect purchasers who never heard that owners of lands had been sheriffs, it is not strange that a lien so extensive in its range should be short in its duration. It exists solely by act of assembly} I would not extend it beyond the letter of the act, more harm than good will follow the extension. In short, I would have said a sheriff may be sued on his official bond or recognizance 20 years after its date and when judgment recovered execution might be levied on any property, he might then have. But I would not hold his recognizance to be alien so as to affect purchasers for longer than five years from its date.

Rogers, J. was sitting at nisi prius and Ross, J. concurred in the point directly decided, without expressing an opinion whether the lien extended to lands not within the county.

Judgment affirmed.


author: Per Curiam.

text:
    CUNCLE against DRIPPS.
    In Error.
    A party may bind himself not to take out a writ of error.
    Error to the Court of Common Pleas of Lancaster county.
    This was a suit brought originally before a Justice of the Peace by Robert Dripps the defendant in error, against Jacob Cunde. —- It was referred, and the arbitrators found for the plaintiff ninety-eight dollars; the defendant appealed and in the Common Pleas it was again referred under the act of 1810, and an award made in favour of the plaintiff. After this, the parties entered into an agreement, to refer all matters in variance to referees; and that their report should be “absolutely final and conclusive” between them “so that neither shall have a right to appeal from, file exceptions to or take a writ of error on the same, but that the prothonotary shall enter judgment thereon. ” These referees reported in favour of the plaintiff “fifty four dollars, forty four cents with costs of suit.”' A motion was made to enter judgment, “without costs for plaintiff, and in favour of'defendant for costs.” The court of Common Pleas discharged the rule entered on this motion, and the defendant took this writ of error.

      Ellmaker and Montgomery, for the defendant in error,
    moved' to quash the writ.

      M. Hopkins and Porter, for the plaintiff,
    resisted the motion.
   Per Curiam.

Cannot a party bind himself not to take a writ of error? It never was before doubted; and it would be a scandal to the administration of justice, if this writ, taken as it notoriously is, in fraud of the agreement, were supported.

Writ quashed.


text:
    BURK against HOOVER.
    in error.
    in an action for work done in finishing a house, it is competent to prove, to show that the house belonged to the plaintiff, and not the defendant, that the defendant bought the property, paid a part < f the purchase money, and declared at the^ time that the purchase was for the plaintiff, if it be also proved that the plaintiff paid up the residue of the purchase money: this was evidence of confirmation of everything thathkd been said or done at the time of thfe purchase as partofthem gesta.

    Error to the District Court for the city and county of Lancaster.

    It was an action of debt brought by Marlin Hoover, the defendant in error, against Peter Burk, plaintiff in error, for carpenter’s work done “in building and finishing a house in MillerstownP— The defendant below in order to show that the house, in the finishing of which the work charged, was done, was the plaintiff’s own property and not his, offered to prove, that - the witness sold two lots of ground in Millerslown, Lancaster county, for twelve hundred' . pounds to Peter Burk, who paid him sixty pounds on account, and at the time, he Burk, “said he had bought them for theplainti S,Martin Hoover f that the seid Martin Hoover paid the witness the balance of the consideration, as agreed upon by Burk, the defendant, on behalf of Martin Hoover,end the witness.- The courtreceived all the evidence so offered except that Burk “said he had bought them for the plaintiff, Martin Hoover,’ this part of the offer the court rejected and upon exception by the defendant sealed a bill. The jury gave a verdict for the. plaintiff.
    Error was assigned’in the rejection of the evidence mentioned in the bill of exceptions.

      Frazer for the plaintiff in error, was stopped by the court.

      Champneys for the defendant in error.
   Per Curiam.

The bare declaration offthe defendant that the house in the finishing of which the work charged"was done, was the plaintiff’s own property, and not that, of the defendant, would not have been competent to discharge him; but ir. was otherwise when' taken in connexion with the acts of confirmation of the plaintiff.— The offer was to prove that at the time of the sale to the defendant and payment of part of the purchase money, not only that he declared, the purchase was for the plaintiff, but that the -plaintiff paid up the residue of the purchase money; and surely that was evidence of confirmation of every thing that had been said or done at the time of the purchase, as part of the res gesta. It ought therefore to have gone to the jury.

Judgment reversed and venire de novo awarded.


text:
    JAMES & ROBERT RAMSEY executors of RAMSEY against JOHNSON.
    IN ERROR.
    Where the question was whether a judgment was paid? the execution with proof of actual psy.i ent over of the money made on it, is good evidence, without producing the levy, or vendue paper, containing an account of the sale of the goods out of which the money was made.
    Had the object been to prove the contents of the paper called the levy, or the vendue paper, it must have been produced.
    Neither the conduct of a witness in other . trrnsactions, nor particular instances of misconduct, can be given in evidence.
    Error to tbe court of Common Pleas of Lancaster county.
    The case was an issue, joined in the common form of a wager, directed by the Common Pleas upon the appropriation of the money arising from the sale of the real estate of William Brown, to try the question whether. William Ramsey’s judgment against Brown had been paid and was joined between Johnson another judgment creditor and Ramsey’s executors who were made defendants.
    " Upon the trial of the cause the plaintiff, Jo/¿ra.sora produced an execution issued by John Baird Esquire, before whom Ramsey’s judgment against Brown, had been obtained, upon that judgment, and proved by Jacob Stoner, the constable, that it was filled up in his hand writing, that John Baird signed and gave it to him with others. That he had made a levy on the execution advertised and sold upon it. That there was a vendue paper made at the sale which contained the amount oi the sale, mentioning every article and the price for which it sold. That the levy was in writing, but that he had left it at home, and the vendue paper was in the possession of the constable of the township. The plaintiff then offered to prove by the witness “that he levied goods of William Brown, and sold them by virtue of the executions of Ramsey and others against Brown, to the amount of one hundred and sixty five dollars. That he paid it over to John Baird, Esquire, the Justice.” To which offer the counsel of the defendant objected, but the court overruled their objection and permitted the said evidence to be given, except that part which is contained within crotchets which was rejected, and a bill of exceptions was sealed by the court.
    The defendant endeavoured by the cross-examination of the witness, to discredit him and show that the money had been applied to other executions. They then offered to prove that the witness had stated that while constable he used to assist John Baird
      Esquire in his office, that he could write his name so. that he could not tell it himself, whether it was his own hand writing or that of the witness, and that he had written his name to process which he had, The court overruled the offer and sealed a bill ofexceptions.
    The verdict was for the plaintiff, and error was assigned here in the two bills of exceptions stated.
    The cause was argued by Porter and Buchanan for the plaintiff in error, and Parke and W. Mopkins for the defendant in error.
   Per Curiam.

The point in the first bill of exceptions, suffi». ciently resembles one of the points in Heckert v. Hayne, 6 Binney, 606 to authorize a decision of it on the authority of that caso. There the object was to prove payment of money, for which a receipt had been given, attested by a witness; and to an objection that the proof could be made only by that witness, it was answered and so held, that if the question had been on the existence of the re-, ceipt, he must have been produced, but that actual payment could be proved, like another fact, by him who made it. Had the object here been to prove the contents of the paper called the levy, or the vendue paper, it must haye been produced. . But neither of these was necessarily a part of the execution, being merely a memorandum for the officer’s convenience; and the plaintiff’s case was made out pro tanto, by producing the execution with proof of actual payment over of money made on it.

It is impossible to seethe pertinency oftheevidence therejection of which is .the subject of the remaining exception. The conduct of the witness in other transactions, could not affect the rights of the parties in this; nor could particular instances of misconduct be proved on him, to affect his character for credibility.

Judgment affirmed.


author: Kennedy, J.

text:
    BRUBAKER against ROBINSON
    IN ERROR.
    V» a case where it was a question of fact, whether the defendant had purchased it tract of land, (which he afterwards sold at an advance, of which the plaintiff claimed a partas a partner,) in partnership with the plaintiff, or whether he bought upon an agreement that the advance upon a resale should be applied to pay a specific debt, it is relevant and competent for the defendant to prove that it was sd applied, as it goes to support his defence in part.
    Where there is a purchase by individuals of a tract of land, and a sale of it again for their mutual benefit, assumpsit by one of them may be sustained to recover his share of the price. Dubitahvr if such transaction constitutes a technical partnershipj If it did, as it related only to a single item, and the equal division of the gain thereby made, and does not require that auditors should settle an account, the action of account render is not essential, but assumpsit may be maintained.
    Error to the District Conri for the city and county of Lancaster.

    The statement of the case contained in the opinion of th e court makes it unneessary to give any other. It was argued by

      Champneys for the plaintiff in error,

      Porter contra.

   The opinion of the court was delivered by

Kennedy, J.

This was an action of assumpsit brought by the plaintiff in error against the defendant in the District Court of Lancaster, to recover the one equal fourth part of eight hundred and fifty dollars.

It appeared from the evidence given on the trial of this cause in the court below, that a certain Adam Zell, had been the owner of a farm and mill in Lancaster county, and was indebted to the estate of Jacob Clemence, deceased, m the sum of nine hundred dollars. That a certain James Raison was the guardian of two minor children of Jacob Clemence, and that Zell wanted Ralston as the guardian of these children, to whom the nine hundred dollars was coming, to accept of his bond for the payment of it at a future day. Ralston agreed to do so, if he would give his bond with security, which was done by William Robinson becoming bound in a bond with Zell as his security to Ralston, for the payment of the nine hundred dollars with interest. Afterwards-on the fourth of February,eighteen hundred and twenty, Adam ipeiiassigned all his property to John Robinson, the defendant, William Robinson, the security, Joseph Weaver, and Abraham, Brubaker, the plaintiff, in trust for the payment of his debts. In the September following, the farm and mill of Zell which had been taken in execution by the Sheriff as the property of Zell, were sold under a writ of venditioni exponas to John Robinson, the defendant for forty-five hundred dollars, who on the thirtieth of the same month, sold the same property to John Miller for fifty three hundred and fifty dollars; eight hundred and fifty dollars more than he bid for it at the Sheriff's sale. This sum was paid by John Miller to John Robinson, who paid the Sheriff the amount of his bid, and gave to Miller a bond guaranteeing the title to the property. The plaintiff in this case claimed that the defendant purchased the farm and mill at the sale by the Sheriff, under an agreement previously entered into between him the defendant, John Zell and Joseph Weaver that'the defendant should attend the sale, which was about to be made by the Sheriff, and buy the property in his own name for the joint benefit of the four, and make sale of it again at the highest price that could be obtained for it, and divide the advance, whatever it might be, equally between them. That the defendant by his sale of the property to John Miller had gained an advance of eight hundred and fifty dollars, the one fourth of which according to the agreement between them, he was bound to pay to the plaintiff.

The defendant denied having made such agreement, and gave evidence of the declar?tions of the plaintiff that the profits of the sale to Miller were to be applied towards paying the debt of James Ralston guardian of the two minor children of Jacob Cl emence, for which William Robinson, was bound as a surety for Adam Zell, and that he, the defendant, and William Robinson had paid to James Ralston eight hundred and twenty dollars and ninety-two cents, in part discharge of the bond of Zell and William Robinson, upon which there was still a balance due of upwards of three hundred and sixty dollars. The evidence of thepaymcntof this money t,oRalston,~w&5 the deposition of Ralston, which was objected to by the counsel for the plaintiff, because as he alleged the matter of it was irrelevant and therefore inadmissible. The court overruled the objection and admitted the testimony. The opinion of the court in this behalf was excepted to by the plaintiff, and the court signed a bill of exception, which is made the foundation of the first error assigned here by the plaintiff. There was certainly no error in' the court below admitting the deposition of James Ralston. Because if the Jury believed the evidence which was given on the part of the defendant, that the plaintiff had agreed that the advance or profits on the sale of the farm and mill to Miller, should be paid to Ralston towards liquidating the bond of Adam Zell, and William Robinson, and again that it had been so appropriated by the defendant it would most clearly have been a good defence against the plaintifi’s claim in this suit, and itmustbe admitted; I think, that the deposition of Ralston went directly to support this defence in part, and was therefore admissible.

The next error, which is the only remaining one, is that the court charged the Jury that the plaintiff could not sustain his action because it was in assumpsit, and founded upon a partnership transaction between the parties without any previous settlement of the partnership accounts having been made, and balance thereupon found, to be due by the defendant to the plaintiff. .

In this part of the charge of the Court below, to the Jury, I think there was error. For admitting that a technical' partnership existed of the correctness of whieh I very much doubt, there was but a single item to be settled, the partnership, if such it may be called, being at an e nd. The whole scope of the agreement contemplated only the purchase of a single item of property, and the sale of it again, and an equal division of the gain thereby made between them. It cannot be pretended that there- is any necessity for the intervention of auditors to state and settle an account when the whole matter consists merely of the purchase of a single tract of land, and the sale of it again: and the question to be answered is how much, if any thing has b’een gained, by the purchase, and resale, after deducting the expenses attending it? This can be ascertained with ásmuch facility, and certainty, by a Jury, as by Auditors, and the veqdict of the July at once closes, and puts an end to all further controversy. Where the transaction is of such a nature as to render the calling in of auditors altogether unnecessary the action of account render may very well be avoided; for the prosecution of such an action is not only attended with more than double the costs and expenses but more than double the delay of assumpsit. This principle was adopted by the Supreme Court of New York in Musier v. Trumpbour, 5. Wendell’s Rep. 274. Where the plaintiff and defendant agreed to burn lime on the share, one was to fill the kiln with stone, and the other to burn it, and furnish the necessary wood for that purpose, the lime to be equally divided between them; and although it was held that this created a technical partnership, yet that an action at law in assumpsit might be maintained by the one against the other for a balance due him, and growing out of the partnership transaction, in as much as there was but a single item to liquidate. The Judgment of the Court below is reversed for this second error assigned, and a venire de novo awarded, that the plaintiff may proceed to another trial in the court below, if he should think himself able to encounter successfully the evidence which the defendant gave on the former, and will no doubt again give on the next trial, of what I conside’r will be a good defence against the plaintiff’s claim if established to the satisfaction of the Jury.

Judgment reversed and a venire de novo awarded.


author: Houston, J.

text:
    ACRE and WEISS against GILBERT, LAUBY, and others.
    IN ERROR.
    Where a deputy Surveyor, upon a precisely descriptive warrant, in 1793, made#' survey which did not adjoin on one of the boundaries called for, and run into land thathad been previously appropriated, and in 1806 having discovered.the mistake, before any other right had commenced, and before he returned his survey, he went on the ground and altered the survey, and marked it on the ground.

      Held that the title by such warrant, and such survey so altered, was good against the title of one who commenced an improvement on the land left out by the first survey, in 1808, although such warrant and survey was not returned until 1810.
    Error to the Court of Common Pleas of Schuylkill county.
    This was an ejectment by the defendants in error, who were plaintiffs below, against the plaintiffs in error, who- were defendants below, for fifty three acres of land, in which the plaintiffs obtained, a verdict and judgment.
    The plaintiff’s title to the land was founded on an improvement,, commenced in 1808, without office right or survey.
    The defendants gave the following evidence of their title:
    A warrant to Jacob Buchman for. one hundred acres of land,, adjoining lands of Michael Ohl, John Sigfrid and James’ land near Lizard creek, Penn township, Northampton county, dated the third of September, seventeen hundred and-ninéty three, and a survey thereon, including the land in dispute; and bounded by land of Jacob Sigfrid, Paul Frantz, land late of Jib el James and land of John Hantworks and Michael Ohl, — by George Palmer, D. S. made on the seventeenth of October, eighteen hundred-and six, and returned on the fifth of July, eighteen hundred and ten. On the twenty second of February, eighteen hundred and fourteen, a patent issued to Jacob Weiss, the defendant, for the land in dispute.
    It was admitted that in seventeen hu-ndred and ninety three, a certain Jacob Bachman, surveyed under George Palmer; that he made a survey of the warranbto Jacob Buchman, leaving out apart of the vacant land described in said warrant, varying the description, and running into old surveys, as represented in Palmer’s draft — which survey so erroneously made, Palmer refused to return, and rectified the mistake as per his deposition.
    Letter and deposition of George Palmer, given in evidence.

      Jlndreas’, Penn township, the 8th. October, 1806.
    SIR — I have at length come up, in order to finish the business of Holshue, Fuhr, Rex fy Co. at which time you ought to be with me, respecting the survey Jacob Bachman once made for you, as that survey run into John Hantworle’s, and I am afraid Hantioork’s included the valuable part of the land. If you think it worth your attention further, please to let Jacob come over and I'will endeav- or to finish the whole. Iam, with esteem, Yours
    GEO. PALMER.

      Jacob Weiss, Esq.

      Northampton County, ss.
    Before me Conrad, Reyer, one of the 'Justices of the Peace, in and for said county, personally appeared Geprge Palmer, Esq. late deputy Surveyor of said county and being duly affirmed according to law, did depose and say:— That Jacob Bachman, whom the said deponent had some times employed as his Deputy, having made a survey for Jacob Weiss, on a warrant granted to Jacob Buchman, dated the third day of December, 1793, in Penn township, late •Northampton county, (now West Penn, Schuylkill county) and that he the said deponent having examined the draft of said survey, he found that it interfered with an older claim and survey made for John Hantwork, and therefore refused to return it — that in October, eighteen hundred and six, the said deponent went personally to the ground claimed by said warrant, and executed tíre same as conformable thereto as could be done, and afterwards made a return thereof to Suiweyor General’s office for eighty five acres, there not being sufficient vacant land to make up the complement the said warrant called for. That at that time the deponent' only opened the line along Hantioork's claim,, and finding the other lines had been run and distinctly marked for the adjoining surveys, he did not deem it necessary to open them anew — a practice which he had been accustomed to, and which had always been allowed and accepted by the Surveyor General. And the said deponent doth further depose and say, that'at the time of his making said survey there was no improvement whatever made on the land included in his return of survey, by any person or persons whatsoever; and also that Jacob Weiss, Jr. at his the said deponent’s request, wás present and assisted him in making the said and other surveys in that neighborhood.
    The following draft exhibits the' surveys made and referred to with the adjoining boundaries. Those in Italics being surveyed for Jacob Bachman.

      ■ The defendants required the court to charge upon- the following points:
    1. That it is competent for a Surveyor to extend the lines of a survey at any time before it has been returned — provided it does no injury to third persons.

      Answer. —This is true as a general rule.
    2. That the lines of the survey in question having been extended by Mr. Palmer, the deputy surveyor, by going on the ground and marking one of the extending.lines,and finding the other lines distinctly marked for the adjoining surveys,before the date of the plaintiff’s improvement — was sufficient to entitle the warrantee to the land; that survey having been returned in less than four years after it was made.

      Answer. — The extension of the lines of the survey in question, by Mr. Palmer the deputy surveyor, by going on the ground and-marking one of the lines and finding the other lines distinctly marked for the adjoining surveys, before the date of plaintiff’s improvement, would have been sufficient-to entitle defendant to the land-, had he procured the surveys as extended, to have been returned before plaintiffs commenced their improvement.
    3. That if the warrant under which the' defendant claims, is accurately descriptive of the land for which it calls, and the deputy surveyor, through ignorance or mistake made a survey excluding a part of the land, described in said warrant and not conformably thereto, it was competent for the deputy before the return of survey to correct the mistake, and if in October eighteen hundred and six, before the commencement of plaintiff’s improvement, the said deputy did go upon the ground and opened and marked a line, correcting the survey, conformably to thé description in said warrant. The title to the land excluded, vested in the defendant at that time. The return of that survey having been in reasonable time. .

      Answer. — This proposition is true, as applicable to cases where the rights of third parties do not intervene. In this case the defendant Weiss, has failed to procure his survey, to be returned until eighteen hundred and ten — plaintiff’s improvement commenced in eighteen hundred and eight. Weiss had his survey made in seventeen hundred and ninety three, excluding the land in controversy. He suffered it to remain so until eighteen hundred and six, when he had his survey altered, so as to include the land in controversy — it was then competent for him to have that alteration made; but he should have returned his survey or should, have procured it, to be returned. Whether the survey was not returned through neglect of Weiss, or the deputy surveyor, is immaterial in this case. Gilbert might purchase the land in question, at any time previous to return óf survey, unless he had actual notice of the alteration in Weiss’ survey, by which the land in question was included in the survey. This case can* not be distinguished from the case of Diggs, v. Downing, 4. Serg. £? Rawle, 348. The principles recognized in that case are applicable to this case. And plaintiff having commenced his improvement before defendant’s survey was returned, and without any notice of the alteration of defendant’s survey, as made in eighteen hundred and six, has obtained a preference to the land in question. Your verdict should be for plaintiffs, there being no disputed facts.
    It has been objected that the plaintiffs could not recover without a survey. The land in question, only fifty three acres, is completely surrounded by the lines of adjoining surveys, made by proper authority and. well marked. That is sufficient to designate the plaintiffs’ claim and they may in this case recover without survey.
    Defendant’s counsel excepted to the charge of the court.

      These Errors were assigned.

    1. The court erred in their answer to the 1st, 2nd and 3d points propounded to the court.
    2. The court erred in charging the jury that the plaintiffs could recover without a survey or office right, to designate the extent of their claim.

      Bannon for the plaintiff in error.
    The question of abandonment was not made below, nor does it occur here. If it had been raised, the defendant would have given evidence to prove that it was the default of Palmer that the return was not sooner made. The naked question presented is whether a corrected survey, where a survey had been before made on the same warrant, and found to be incorrect, and not returned, is good against a right which intervenes between the time of making the corrected survey, and the return?
    Had this been a shifted warrant, the title would not have attached until the return of survey, but the warrant was precisely decriptive, and when the surveyor discovered the mistake, he had a right to go upon the ground, and make a new survey, correcting the'mistake. And this would be good if no right had been acquired before such corrected survey was made. The case of Diggs v. Downing, 4 Serg. <§• Rawle, 348, sustains this principle. In that case the- surveyor corrected his survey by protraction on paper, in our case, he went on the ground and there made the correction. — This constitutes the distinction between that case and this. He referred to Vichroy Shelley,y. 14 Serg. £,• Rawle 372 2 Smith 256,7. Lawman y. Thomas 4 Binn 51, 58,

      Here the warrant is precisely descriptive, and the land office furnished notice that this land was appropriated, and by calling at the office of the deputy surveyor if might have been ascertained by the plaintiff before he made his improvement, that the land was included in the corrected survey.
    The office of the deputy surveyor is a public office, and he is allowed a fee for a search; and he contended, that the transactions evid enced by that office should affect parties with notice. Stock-man v. Blair,5- Bin 211 Moore v. Shaver. 6 Serg fy Rawle 130.

      Loeser for the defendant in error.
    A warrantee has the privilege of having his warrant surveyed on any vacant ground in the commonwealth. The deputy surveyor in the execution of the' warrant is the mere agent of the warrantee, and it is therefore fair to say that the first survey was made in the presence and by the direction of Weiss, the warrantee. This, he alleged was consistent with the fact. By the survey then made on the ground, the warrant was satisfied. And although an alteration in the survey before the return might be made, yet the survey making the alteration could give no title until it was returned, and accepted by the commonwealth. If he could alter it once, he might again and again, and if this conferred title before the return, the warrantee might keep a large scope of country open, and subject to his caprice; which could not be endured.
    By the survey on the ground, the warrantee gives notice to the world of his appropriation of the land' surveyed, and any survey making an alteration of the first must create a new contract with the commonwealth, which can only take effect at the return of such altered survey. Here gross laches had occurred for thirteen years elapsed from the first survey until the return, in which time the plaintiff’s title commenced.
   The opinion of the court was delivered by

Houston, J.

The plaintiff claimed by an improvement, commenced in eighteen hundred and eight. They had neither office title, nor survey — how they got out of possession did not appear in this court.

The defendants shewed a warrant of the office of the 3d September, seventeen hundred and ninety three, to Jacob Buchman, for one hundred acres of land, adjoining lands of Michael Ohl, J. Sigfried, and James’ land, near Lizard creek, in Northampton county, (at that time the land in question was in Northampton county.) It was admitted that in seventeen hundred and ninety-three, a certain Jacob Bachman, acted as an assistant of G. Palmer, deputy surveyor of that county, that he executed the above warrant, adjoining Sigfried — Touching Ohl’s at one corner, and not coming near James’ land, in short that he left out the land in question, which is bounded by Ohl’s and James’s land, and he.run into two old surveys,at the one end. This survey was not returned, it could not be returned by the deputy surveyor, if he regarded his duty.

In the beginning of October, eighteen hundred and six, G. Palmer,wrote to Jacob Weiss, informing him that he had come to that neighborhood to complete some business; that his survey as made by Bachman, interfered with an old survey, and requesting him if he thought the matter worth attending to, to send his son, that he, Palmer, might complete the business. On' the 17th of October Palmer made a- survey, taking in the land in question which was expressly called for by the warrant, and leaving out the land included in prior surveys. This survey was returned the the fifth July eighteen hundred and ten, and on twenty second February, eighteen hundred and four, a patent issued to Jacob Weiss.

George Palmer’s deposition had been taken, and was read in the cause, he stated that he had refused to return the first survey made by Bachman, because he had discovered that it interfered with older titles; that in October, eighteen hundred and six, deponent went personally to the ground and executed the warrant as comformably to its call as could be done and afterwards returned it for eighty five acres, there not being land enough to makeup one hundred acres; that at the time he only marked one line adjoining Hantwork’s claim; that he examined the other lines, and finding them distinctly marked, for the adjoining surveys, he did not remark them, a practice he had been accustomed to, and which had been sanctioned by the Surveyor general; that at that time there was no improvement whatever on the land included in the survey as returned by any person whatever; that young Weiss was along when he made the survey. No other testimony was sent here with the record.

The defendants requested the court to charge on the following points:

1. That it is competent to the Surveyor to extend the lines of a survey at any time before it has been returned: provided it does no injury to third persons.

Answer by the court. — This is true asa general^ proposition.

2. That the lines of the survey in question, having been extended •by Mr. Palmer, the deputy surveyor, by going on the ground, and marking one of the extending lines, and finding the others distinctly marked for the adjoining surveys, before the date of plaintiff’s improvement, was sufficient to entitle the warrantee to the land, that survey having been returned in less than four year* , after it was made. ■

Answer. The extension of the lines of the survey in question, by Mr. Palmer, deputy surveyor, going on the ground, and marking one of the lines, and finding the other lines distinctly marked for the adjoining surveys, before the date of the plaintiff’s improvement, would have been sufficient to entitle defendant to •the land, had he procured the survey as extended, to be returned before plaintiffs commenced their improvement.

.3. That if the warrant under which the defendant claims, is accurately descriptive of the land for which it calls, and the deputy .surveyor through ignorance or mistake made a survey, excluding part of the land described in said warrant, and not conformably thereto, it was competent for the deputy surveyor, before the return of survey to correct the mistake: and if in October, eighteen hundred and six, before the commencement of plaintiff’s improvement, the said deputy did go on the ground, and opened and marked aline, correcting the survey, conformably to the description in the said warrant, the title to the land included vested in the defendant at that time: the return of that survey having been made in a reasonable time.

Answer. — This proposition is true as applicable .to cases where the rights of third parties do not intervene. In this ease the defendant Weiss has failed to procure his survey to be returned until eighteen hundred and ten,theplantiff’s improvement commenced in -eighteen hundred and eight. Weiss had his survey made in seven teen hundred and ninetythree, excluding the land in controver- , sy; he suffered-it to remain so till eighteen hundred and six, •when he had his survey altered so as to include the land in controversy; it was then competent to have the alteration made; but he should have procured his survey to be returned. Whether the -survey was not returned through the neglect of Weiss, or of the deputy surveyor is immaterial in this case. Gilbert might purchase the land in question at any time' previous to the return of .survey, unless he had actual notice of the alteration of Weiss’ survey, by which the land in question was included in the -survey. This cannot be distinguished from the case of Diggs v. Downing, 4 Serg. & Rawle, 348. The principles recognized in that case are applicable to this: and the plaintiff having commenced his improvement before the defendant’s survey was returned, without any notice of the alteration of defendant’s survey, as made in eighteen hundred and six, has obtained a preference to the land in question. Your verdict should be for the . plaintiffs, there being no disputed facts.

The Judge continued,

It has been objected that the plaintiffs could not recover without a survey. The land in question only fifty two acres, is completely surrounded by the lines of adjoining surveys, made by proper authority and well marked; that is sufficient to designat the plaintiff’s claim, and they may in this case recover without a' survey.

In countries where the government has no land to sell, or where there is but one mode of selling, and by that the contract is made and evidenced by a single instrument under the seal of the government, which transfers the soil, designated by boundaries previously established, and evidences the payment of the money,- by the purchaser, it is possible to lay down general rules, which will apply to all cases; but where the state sells by warrants on which all the purchase money has been paid,some of which, according to the law under which they issued, vest a title in the holder of them as soon as they are surveyed and returned, and others although paid for,- and surveyed and returned, yet vest no title unless the owner within a specified time enters on the land and by himself or a tenant,.improves the same by clearing and cultivating a prescribed number of acres, within a prescribed period. Where the same government has-at other times disposed of land by location or application, on which-no money was paid, except the fees to the officers, and none was to be paid until the land was surveyed and returned; and then to be paid within- a year, and where that time of payment has been extended by legislative provision for more than sixty years; where although the regulation directed these locations or applications to be-surveyed and returned within six months, not one fourth of them were surveyed or returned within that time, and yet when returned have been accepted every year since, and will and must for many years to come; in cases where there has been a survey accompanied by actual possession, where there is no- adverse claim, and in many eases where there is an adverse claim, Biddle v. Dougal 5 Binney 142: where in addition to all this, ithas by long usage become the-settled law, that if two persons obtain office rights, describing the said land, one of them can survey and return and hold other land, not deseribed, and in some cases, as where after survey and before return he moves on to the land and continues to reside there, thus giving notice of his appropriation of it, can hold it without a return of his survey, when to these is superad ded, that at all times a person would acquire a right to vacant, and unsold land, or to land which had been surveyed on location and abandoned, by entering on and occupying it, by making it a place of abode and the means of supporting a family,and might and may yet pay the State for it in the mannerprescribed, or which shall be prescribed, add to all these that the owner of an office title, or the actual settler, may after having commenced a title, change his mind, and determine not to take the land, and not to pay the State for it; where I say all these modes of acquiring right to land have existed and the rights, under them conflict, and are disputed in courts, it must be apparent that but few rules can be of general application, that precision of description in location, or warrant diligence in procuring the completion of the title, accident of mistake or himself or the surveyor or other officer in returning it, notice or want of notice of what has been done, and is intended to be done, brought home to an adverse claimant, in short that a thousand circumstances may vary the justice of the case and the law of the case, for they are generally the same thing. General rules, may, it is true, be adopted which will suit many of these cases, but many exceptions depending on circumstances, as different as possible, make the exceptions to these rules, that is, make cases which do not come within these rules, very numerous. Almost every one of our suits as to the title to lands, are cases in which it was contended that the circumstances made it an exception from general rules.

It has too often happened that in reporting those cases, the facts and circumstances of the case are stated in a very defective manner, and sometimes the decision founded on those peculiar facts has been mistaken for, and reported as, a general rule. This has led, and will lead to confusion and uncertainty. The present case is sent here with no testimony except G. Palmer’s deposition.— It was decided below as an abstract question, depending solely on time, and it was said that whether the delay arose from the fault of the surveyor, or of the owner, was immaterial. A proposition which is never true except when an office right has been surveyed on land not described in it, and has not been entered on and occupied by the owner of the right, or where an addition to a survey has been made on paper, without going to the ground and marking the lines of that addition.

I proceed to notice some of the cases on the subject of altering the lines of surveys. Drinker v. Holliday; 2 Yeates 87.— The facts of this case are that Holliday’s warrant was surveyed and returned before the plaintiff’s title commenced. Drinker’s was laid so as to adjoin it as then returned. It was after this discovered that Holliday’s interfered with another title older than itself, and to get clear of this, an order to re-survey it was obtained.— It was re-surveyed clear of the older title, butso as to include, what before that time had been surveyed and returned for the person under whomDrinker claimed. It decided that Holliday’s having executed his survey and designated his boundary, was notice, of the extent of his claim,and any person might obtain the land adjoining. That although Holliday might resurvey and take in vacant land, he could not take appropriated land; the justice of this decision is very obvious. Drinker had acquired right to the land after Holliday, by his survey, had given notice that he did not claim it.— The principle of this case has been adhered to, but an inaccuracy has crept into the report. It is said after a survey has been completed on the ground, a new survey cannot be made without new directions, because the authority of the deputy surveyor has been determined. In that case Holliday’s survey had been returned, and m such case no new survey can be made without an order from the board of property to the Surveyor General. Before the survey is returned, the lines may be extended or the whole situation changed without any new order; so are all the cases. The next case is in Adams, Lessee, v. Goodlander & others 2 Yeates, 313. In this case the plaintifl’s survey had been executed so as to exclude the land in question, and afterwards and before the return enlarged so as to include it. One of the defendants claimed under an application laid after the plaintiff’s first survey, and others on an improvement after the plaintiff’s first survey,and before his second enlarged survey, and the decision was in favor of the defendants.— See also Evans v. Nargang; 2 Bin. 57,and Biddle v. Dougel Id 37. The same case is again reported, 5 Bin. 142, and the same point taken as settled law, the title was then disputed on other grounds.

Davis v. Keefer, 4 Bin. 164 is more like the case before us than any other in our books, and greatly contrary to the decision in this case. The plaintiff in that case claimed under a warrant of seventeen hundred and seventy two, to adjoin James Clark, the owner went with the Deputy Surveyor to execute the warrant, but Clark claimed by improvement, and at that time had no survey, nor line marked on that side, but he proposed to take a warrant and to procure a survey. Gants paid the Deputy Surveyor, and left his warrantto be executed as soon as Clark’s survey was made. Clark’s land was surveyed in seventeen hundred and seventy three, and sometime after Gants’s warrant was surveyed not adjoining Clark but leaving forty acres between him and Clark, and that was the only good land he could get. In seventeen hundred and eighty six Gants wrote to the deputy Surveyor, on the subject, inquiring what had been done. An answer was written which did not appear to have reached him. In seventeen hundred and eighty six, Clark took a second warrant for the land between his old tract and Gants’s as laid, had a survey and return,and in seventeen hundred and eighty nine by two separate deeds to the purchaser, sold both his tracts, with covenant of warranty as to the old tract, but none as to the second. In describing the old tract, it called for Gants’s as adjoining it on four lines, though if the second survey was good it did not adjoin Gants’s at all. This gave notice, of Gants’s claim to the purchaser. One of his deeds shewed that Gants had some claim to the land conveyed to him by the other. In seventeen hundred and ninety six, Gants procured an order of the board of property for a survey of his warrant which was made so as to include the forty acres taken by Clark’s second warrant. In eighteen hundred Gants sold to Davis who took a patent and brought this suit. On the first trial there was a verdict for plaintiff which was set aside; a second trial before Smith, Justice and again a verdiet for plaintiff which was confirmed on appeal. I have stated this case minutely, because without such statement it would appear to contradict the prior decisions. It was a precisely descriptive warrant adjoining Clark and between him and the North mountain. It was a warrant on which all the purchase money had been paid, and not a location on which nothing but office fees had been paid.— The Deputy Surveyor could not mistake where it was to be laid. Clark knew of its existence, and where to be laid for Gants and the Deputy Surveyor had called on him when they went first to execute it, and he had promised to take a warrant and procure a survey that it might be laid adjoining to it. The Deputy Surveyor although in a certain sense entrusted to lay it, yet had no authority and no right to remove it so as to leave out the best land.Clark knew it was unfairly laid and attempted to take advantage of this, and his deed gave notice to Keefer, who purchased from Clark, of Gants’ claim to the land adjoining the old survey. It has been said there is no difference in the law whether a title commences by warrant on which all the purchase money has been paid, or a location on which none has been paid, and to a certain extent and under certain circumstances,as where each has been duly pursued, this is true. The earliest in date takes the land, but when the question turns on abandonment, there is a wide difference,aman will not readily abandon what he has paid for, though he may determine not to complete a right on which he has paid nothing. Cox v. Cromwell, 3 Bin 116. Many cases say a right on location is easily abandoned.

Davis v. Keefer is a strong case, to show that a warrant on which purchase money has been paid, is not easily lost by neglect. It is also a strong case to shew that it is material in case of a warrant and payment of money, whether the delay was occasioned by the fault of surveyor or owner, it appeared Gant had paid money to the Surveyor when first on the ground in seventeen hundred and seventy two. Still however I do not think the decision would have been as it is, were it not for the notice to Clark, and through the deed, to Keefer, of the right of Gants. In short it decides that where a man has put into the hands of the deputy surveyor, a precisely descriptive warrant, and paid him for surveying and returning the right of the owner of the warrant as against those who have notice of the facts will not be lost, by a delay of deputy surveyor from seventeen hundred and seventy two till seventeen hundred and ninety six. The notice in this case too, was actual notice to Clark, of the existence of Gant’s warrant, and that it was to adjoin his survey on his improvement when surveyed. In addition I have no doubt the jury considered that from the whole of the proceedings there was something worse than mere negligence; some combination between Clark and the Deputy Surveyor, and where a Jury find fraud or find a verdict which is only right if they believe there was' fraud. Where two Juries find in the same way, Courts will take it there was fraud, and that makes such a cáse an exception to rules established for fair cases. I.have dwelt on this case to show how important it is in the trial of causes to attend to facts and how unsafe for a Judge to disregard the facts and decide what are called general rules. Graham v. Moore, 4 Serg. & Rawle 462.

The survey of the defendants was at first laid on ground different from that called for, it was worse, than that it was laid on ground before appropriated. To have returned it as firstlaid, would have been a violation of duty in the Deputy Surveyor. That it was so laid, seems to have been the fault of his assistant. Whether that assistant had been paid for making and returning the survey does not appear. The matter rested from seventeen hundred and ninety three till eighteen hundred and six, and if in the mean time an innocent person had taken a warrant'for, or improved on, the land in question, such person might have held it. Nothing of the kind was done, and in eighteen hundred and six the land called by that warrant was as much unclaimed by any other person as it had been in seventeen hundred and ninety three. In eighteen hundred and six it was duly surveyed adjoining James’s land on one side,. Ohl’s on another side, Sig fried’ s on a third, and a line run and marked on the fourth side. The lines of the old adjoining surveys were examined, and being found on the ground were not remarked-— This was right 3 Serg. & Rawle, 283 Covert & Irwin, 13 Serg. & Rawle 122 Lamburne v. Hartswick.

The case of Star v. Bradford, 2 Penn. Rep. 384, has been cited to support the decision in this case. I agreed to the decision of this court in that case, but I would have taken into view not barely the lapse of time from seventeen hundred and sixty nine, the date of plaintiffs application, till seventeen hundred and eighty four-the date of the warrant of defendant in erroi^ but also that there-was no return of that survey until after seventeen hundred and eighty eight, before which time the adverse warrant was surveyed, returned, patented and sold to an innocent purchaser. The act ninth April, seventeen hundred and eighty one, had directed that all surveys not before returned, should be returned within nine-months, and the act of fifth April, seventeen hundred and eighty two, had made it lawful for the Surveyor General to receive returns1 of surveys fairly made for such further period as to him should appear just and reasonable. The owner of A. NenmAg-Swarranthadneg. lected the first, and the last act until another had completed a legal title and sold it, and the length oi time and the sale made it unjust and unreasonable to confirm his title. That case however takes the distinction between the case where the delay is owing to the fault of the surveyor, and to the fault of the party. See page 396, and between abandonment of a warrant o n which the money has been paid, and an application on which none has been paid, page 395.

It remains to notice the case of Diggs, v. Downing, 4 Serg. & Rawle, 348, on which the judge iffithe court below founded his Opinion, and certainly in the hurry of a trial that case was ¿not understood — such is the opinion of this court,- including the Chief Justice, who delivered that opinion. It was a practice sanctioned by many decisions,- that when a survey was completed, as far as running and marking the lines, and malting the Calculations,- and it was then discovered that land enough had not been included, the deputy surveyor included more land by protraction on paper,- so as to fill the warrant, and returned the' draft as protracted to the surveyor general’s office* and if the land taken in by protraction was unappropriated before, the party had title according to the draft returned. But it is the return, which in such case gives title. Sometimes the surveyor went to the ground and marked the lines of the part added, and this was the better course and in such case, the title was good, unless lost by some subsequent misconductof the owners, from time of survey, where the warant described the land, Diggs v. Downing, settled that when a survey was made on the ground* and being found too small, an addition was plotted to it, but never marked on the ground and not returned to the office of the surveyor general, such additional plotted part was not to be held against an. intervening warrant survey, and return patent and sale. It is apparent from the whole opinion, that if the deputy surveyor had gone and marked the lines including the addition, before any adverse right commenced, no negligence of the deputy surveyor would after that, unless very gross indeed* have destroyed the title of the owner of the first and descriptive warrant. Four years lying by, would not of itself have done it, nor a much longer time; according to Davis and Keeffer, if the adverse claimant had notice.

Judgment reversed and a venire de novo awarded.