Adams against Easton, 6 Watts 456

The opinion of the Court was delivered by Sergeant, J. Ejectment for seventy-five acres of land in Cambria county, situate on the summit of the Alleghenymountain, where the railroad crosses. The plaintiff claimed under a warrant,, dated the 15th of January 1835, calling for an improvement on the 1st of September 1805.

The defendants claimed under a warrant to John Haynes, for the seventy-five acres by description, dated the 18th of March 1807, and calling for his improvement, commencing on the 1st of August 1801, on which the purchase money was paid on the 18th of March 1807, and a survey made on the 4th of May 1807. Much evidence was given as to the dates of the respective improvements of the parties, and other matters connected with their titles, for which I refer to the charge of the court below to the jury, which contains a detail of them.

It is unnecessary to recapitulate the various errors assigned in the charge of the court, in respect to the law, because we are of opinion that the plaintiff’s points were, in the charge of the court, substantially and properly answered, except in what relates to the return of the survey in Í807, which depended upon the evidence given by James Meloy on that subject. We are of opinion, that the evidence of James Meloy was improperly received, and that the judgment must on that ground be reversed.

It appears, that the survey of the 4th of May 1807, on the Haynes warrant, was made by William O’Keefe, deputy survejmr, who testified, that he had sent down the return of survey to the surveyor-general, by James Meloy, in July-1807. The defendants offered James Meloy as a Avitness, to prove that he returned the survey in the name of Haynes to the surveyor-general. The plaintiff objected, the court receivéd the evidence, and exception was taken. The objection to the evidence offered, is, that the defendants had not previously shown a, search -for this survey in the land office, and. we think it well founded.

A survey returned to the land office, becomes matter of public record, and the best evidence of its existence and character, is the return itself, or a certified copy under seal of office. Parol evidence of such return is but secondary, and admissible only where search has been made in the proper office, and the return cannot be found; and for this purpose the certificate of the proper officer has been held admissible. 4 Serg. & Rawle 174; 14 Serg. & Rawle 375.

Here no such preliminary proof was given: and non constat, but that, if the office were examined, the return of survey would appear, and its character be at once satisfactorily ascertained. It might also appear, whether it was rejected or not at the land office: a matter of importance in this suit, apparently much litigated by the parties, and which, as appears by the charge of the court, afterwards came to depend on presumptions and conjectures. If the return cannot be found, then, from necessity, evidence may be resorted to, to prove the facts and the circumstances in relation to it.

What inferences would be properly deducible from such parol evidence, it would be improper to anticipate now, because the question may not occur again, and if it should, it may be connected with other circumstances besides those in the case at present. In the rejection of the deposition of Richard Shirley, we think' the court below was right. The notice signed by the plaintiff’s attorney, and served upon Jackson, the party in interest, was directed “ to the plaintiff or his attorney.” This appears to have been a clerical error — but it was calculated to mislead the defendant.

Judgment reversed, and a venire facias de novo awarded.