Woods against Ingersoll and Dallas, 1 Binn. 146

Tilghman C. J. This is an action brought by the plaintiff against the defendants for his services as a deputy surveyor in surveying 115 tracts of 400 acres each. The plaintiff’s charge was 9 dollars 33 cents for each tract, which is the full legal charge; that is, ten dollars a tract, deducting five shillings, the fee for the plot and return, because the surveys were not returned by plaintiff. He held back the return until his fees should be paid him. The jury found for the plaintiff 1073 dolls. 33 cents, being the full amount of his claim without interest.

From the report of the judges who sat on the trial of the cause, I take for granted that the evidence warranted the conclusion that although the external lines of the whole body of land were run, so as to enable the plaintiff to ascertain not only the whole quantity but also the quantity of each particular tract, yet the cross lines dividing the several tracts from each other, were not run.

By the act of Assembly fixing the fees of the deputy survey- or, it is enacted as follows in the 9th section; “Every survey “ hereafter to be returned into the land office of this state upon “ any warrant which shall be issued after the passing of this “ act, shall be made by actual going upon and measuring of the “ land., and marking the lines to be returned on such warrant, “ after the warrant authorizing such survey shall come to the “ hands of the deputy surveyor to whom the same shall be di- “ rected; and every survey made theretofore shall be accounted “ clandestine, and shall be void and of no effect whatsoever.” 8th April 1785. 2 St.

Laws. 316. The mode of making the survey is directed in the former part of this section, that is, by actual going upon and measuring” the land and marking the lines; the latter part of the

section goes further, and declares that unless the survey is made after the warrant comes to the hands of the deputy surveyor, it shall be absolutely void. So that although the directing part of the

section is not strictly complied with, still the survey may be sufficient to entitle the warrantee to a patent, provided the surveyor has been upon the ground and run lines sufficient to identify the tract, and ascertain the quantity contained in it. I mention this, because it has been insinuated, although the point was not formally made, that perhaps the surveys made by the plaintiff were void, inasmuch as all the lines of each tract were not run and marked. I understand that the construction which I have put upon the 9th

section of the act of Assembly in question, has always been, as it still is, held by all the Judges of this Court: and it is of consequence that there should be no misunderstanding on the point, as the titles of a vast number of persons, who have taken up lands from the commonwealth and paid for them, would be shaken by a contrary opinion. But although the surveys made by the plaintiff for the defendants may not be void, yet as he has failed in his duty plainly prescribed by law, he cannot be entitled to the whole of those fees which are established by law, for services which are but in part performed.

Although the defendants may receive their patents on the return of the surveys, they may be under the necessity afterwards of running and marking those lines, which ought to have been run and marked by the plaintiff; and this will occasion an additional expense. It is true the jury gave the plaintiff no interest, but that is not a sufficient reason why there should not be a new trial; because, if the delay of payment has been occasioned by his demanding more than he was entitled to, he would not be entitled to interest for what might be really due to him.

I am of opinion therefore that the jury did wrong in giving the plaintiff his whole claim. The justice of the case requires a new trial. Yeates J. I much regret that I cannot concur in the opinion which has been delivered, and peculiarly so upon the ground that I am abundantly satisfied our respectable brothers have been grossly defrauded in this speculation by the person who "furnished them the locations. If the plaintiff has not participa ted therein, the sins of Dr. James Hamilton cannot be visited upon him.

It was proved on the trial that the warrants were put into the plaintiff’s hands to be executed at the instance of the defendants, and that he was urged by one of them to use dispatch on their land warrants. Mat. Taylor swore that he surveyed forty six of the tracts Ly actually going on the land and surveying the tracts as is usual in the case of Company lands, and that there were no other lands vacant which suited the description of the warrants; but he did not answer the question as to running and marking the intermediate lines.

From the posts expressed in the returns of survey, it might fairly be inferred that many of the cross lines were not actually run; but in how many instances this omission obtained, was not ascertained. The Judges who tried the cause were divided in’opinion, whether the plaintiff’s not running and marking the intermediate lines of each survey was not a full bar to his recovery of any money whatever in this suit. I was then of opinion, and have seen no reason to alter it, that it would be more just to say that there might be a deduction from the surveyor’s bill, than wholly to defeat his claim to remuneration.

The want of returning the surveys can be no obstacle, because, under the 8th

section of the act of 8th April 1785, the'deputy surveyor has a lien on the survey for the payment of his fees. The difficulty arises on the 9th

section of that act. It is plain that the surveys declared to be clandestine and void are those which shall be made before the warrants shall be received by the deputy surveyor. I concur with the plaintiff’s counsel, who asserted that the preceding parts of the

section are merely directory. A different construction would invalidate many surveys of large bodies of lands, wherein the exterior lines have been run and marked for companies or an individual, and the division lines have not been run on the ground. I again repeat that the decision on this point in Centre county has been much mistaken. I go further, and assert that surveys of a similar nature have more than once received our sanction upon the circuit.

It is well known that the closing line of a survey is seldom or never run on the ground, being susceptible of mathematical calculation. it is not my idea that a surveyor is entitled to his full fees unless he shall have performed the duties enjoined on him by' law. He should faithfully perform his official duty; and though the usage has been for many deputies to run and mark only the ■outside lines of a large tract owned by several persons in partnership, he is obliged to run and mark the subdivision lines, when required so to do.

If he should find himself under a physical impossibility to do the work, he should represent the same to the proprietors; the law compels no man to do impossibilities, and such impossibility certainly exists in the execution of some of the present surveys. But here I apprehend the jury have made what they deemed a proper deduction from the sum demanded. The plaintiff’s counsel claimed interest on the full services from the time the business of the surveys was concluded, making 115 surveys at 31. 10s. each, (allowing the fees on the return of each survey) which amounts to 1073 dolls. 33 cents.

The returns of survey were ready in October 1795, which until the 9th December 1805, the time of trial, forms a period of ten years and two months; and the jury by not allowing the plaintiff that interest, have in fact deducted from him the sum of six hundred dollars and upwards. From the evidence adduced on the trial he must be considered as the agent of the defendants, and is now out of pocket the sums he has advanced for provisions, chain carriers, &c.

In this view of matters my sense of duty compels me to dissent from the opinion delivered by the majority of the court, and I trust what I have said will be imputed solely to that impression. Smith J. gave no opinion, as he was not present at the argument.