Lessee of John M'Rhea against Plummer, 1 Binn. 227

Tilghman C. J. after stating the facts, proceeded as follows. It was objected at the trial that the survey of the land in question was void, having been made before the warrant came to the hands of the deputy surveyor. Judge Teates was of opinion that under the circumstances of this case the survey was not void; and that is the point now to be decided.

As it is admitted that the commonwealth received the full price of the land, that there has been at some time an accurate survey marked on the ground, and that when the appropriation was made for the plaintiff, there was no settler on the land, nothing but very clear and positive law ought to deprive the plaintiff of his purchase. The objection to the survey is founded on the 9th

section of the act of 8th April 1785. I shall give no opinion at this time whether the provision of this

section extends to surveys made under the act of 3d April 1792. I understand that in the case of Wright’s lessee v. Wells tried at Nisi Prius at Washington before the late Chief Justice M'-Kean and Judge Teates, it was held that it was restrained to lands then lately purchased by the commonwealth from the Indians, and intended to be sold in a short time. But supposing that it extended to all surveys on warrants issued after the passing of that act, though the present case may fall within the words, it is evident that it is not within the spirit and intention of the act.

The intent was to prevent all persons, surveyors as well as others, from making surveys i thout authority, and to declare all surveys so made, absolutely void. Now the surveys of the depreciation lands were made under the authority of the state. Let us compare this case with others -that have been decided, and concerning which there is no question. Suppose a surveyor receives a warrant, and the land to be surveyed on it is bounded on three sides by the lines of other tracts which he has surveyed before. It is not contended that he is obliged to run those three lines over again; and why?

Because it would be useless trouble, those lines having been run and marked by legal authority before; and yet he does not comply with the words of the act, which require him to run the lines and mark them, after the warrant comes to his hand. Here then is an implied exception from the words, in order to comply with the spirit of the act. Nothing more is to be done in the case before us. What mischief can arise from this construction? It is said the actual settlers will be deceived, because they can find no marks made since 3d April 1792. But they take due pains they cannot be deceived.

It is in vain for any man to seek for proper information by hunting for marks on the ground, without applying to the deputy surveyor, who is obliged to keep books for the purpose of information. The marks on the ground give no satisfaction, for they may-have been made by unauthorized persons. But the surveyor’s books combined with the marks on the ground, will make eve-thing clear.

The entries in the books of the surveyor would have shewn that this land had been surveyed; and if upon comparing the marks on the ground with the surveyor’s entry, a difficulty had occurred because the marks appeared older than entry, this would have been at once explained by the surveyor on application to him. Every prudent and honest man would naturally make such an application, before he expended time labour and money in making a settlement.

If in any case it has happened that a settler has in fact been deceived, even through his own inadvertency, I can only express my hope that the warrantee will take that circumstance into consideration, and let him have a reasonable portion of the land on moderate terms. I have no hesitation in saying that in my opinion every honest conscientious man ought so tó do. But at present we are called upon to decide the law* Por the reasons I have given I see no cause to differ from the •opinion delivered by Judge Teates. I am therefore of opinion that the award of a new trial be affirmed. Smith J. concurred.

Brackenridge J. I cannot assent to the opinion delivered by the Chief Justice. The act of 1785 I have no doubt extends to this case; and although I will not say that an omission to go on the ground and mark the lines avoids the survey, as this part of the

section may be considered directory, yet if the survey is not made after the warrant comes to the hands of the deputy surveyor, it is absolutely void; for that part of the

section is positive, and not directory. In this case the survey was not made after the warrant was delivered to the deputy surveyor.