Lessee of Robert Dunning, William Dunning, John Dunning, Ezekiel Dunning and Mark Dunning against James Caruthers, 4 Yeates 13

®Shippen, C. J. delivered his opinion as follows: „-, The defendant’s title is first, in point of time. On the 17th February 1734-5, John Calhoon obtained a license from Samuel Blunston, to settle and improve 200 acres of land on Robert Dunning’s spring, bounded as is mentioned therein; to be surveyed to the said John Calhoon, on the common terms. Shortly after this, Calhoon enters upon the land, clears three or four acres, and employs a person to fence and plough it. He then returned to Chester county, where he remained several years, without pursuing his improvement, or getting any survey made.

In March 1743-4, Robert Dunning obtained a warrant for the same land, and got a survey made in a short time after. The plaintiff claims title under this warrant and survey; under the idea, that Calhoon had abandoned his claim, by not following it up in a reasonable time. As to the nature of Blunston’s licences, they were issued under a special commission from the proprietaries to Samuel Blun-ston, a gentleman resident on the banks of the Susquehannah, to encourage the settlement of the country. Most of the early titles over the Susquehannah, originated in these licences.

The legal effect of these licences, has been differently construed, by the different counsel. By some, they are likened to locations, by others, to warrants. I take it, they are not strictly analogous to either, but certainly partake more of warrants than locations.

They have indeed all the essential parts of a warrant, except in the single circumstance of the purchase money not being previously paid ; they contain a direction to make a survey, equally with a warrant; and the truth is, that it was the constan usage of surveyors, to make surveys under them, in the same manner as under warrants, and such surveys were uniformly accepted in the office.

But if in the present case, Calhoon had got a warrant instead of a licence, if the fact be, that he abandoned his claim by an unreasonable delay in not pursuing it, it will be equally fatal to his right, whether founded on a warrant or a licence. Was there then such an abandonment, as entitled another person, to obtain a title to it by warrant and survey ? The length of time that elapsed, before Calhoon took any step to confirm his right, would certainly in an ordinary case, deprive him of his right.

But a considerable question arises, whether under the circumstances of this case, and considering who the party was who opposed his right, and in what manner he obtained an adverse right, these shall take the defendant out of the common case ? Robert Dunning appears to have been privy to Calhoon’s original right. Calhoon lodged at his house, which was in the *neighbourhood, when he made his clearing.

And there is p g some difference in equity, between a man’s laying a right *- upon land, even in the case of an improvement, where he knows an improvement to have been begun by another, and where a perfect stranger lays such a right. Still if there was no other circumstance in the case, and there had been an evident dereliction, this perhaps alone would not have served the orignal taker up. But in this case there is a much stronger circumstance.

Robert Dunning, when he applied for a warrant in 1743, not only knew of Calhoon’s prior right, but in some measure recognized it, and was guilty, as appears to me, of a deception upon the office. It seems there was a prior warrant for this same land, taken out by one William Armstrong, whom he prevails upon to surrender his warrant to him, upon an allegation that he could acquire no right under it, on account of Calhoon’s having an earlier right under a licence from Blunston.

This warrant being then out of his way, he has recourse to an absolute falsehood, by asserting, that he had purchased from Calhoon, his earlier right. If these facts are true, his title was founded in fraud, and can have no.support either in law or equity. It is however asserted, that this deception and this fraud do not appear in the evidence, except from the decision of the Board of Property; and that facts recited in the minutes of that decision not appearing to have been authenticated upon oath, ought to have but little weight.

This board had certainly no strictly judicial authority, but it was a tribunal known to the laws. And what has great weight with me, the presiding member of it was a gentleman of acknowledged abilities as a lawyer, and well known to myself from a long acquaintance, and thorough knowledge of him, to be a person not only of great humanity, but of the strictest veracity and sterling integrity.

This possibly, may tend to work a stronger conviction in my mind, of the truth of what he certifies, than it may in the minds of men, who knew him not so well; but to me, it is irresistible. ' Under this persuasion, I cannot doubt, but there has been some foul play in this transaction, and cannot ease my conscience, without giving my voice in favor of a re-hearing of the cause. Cited in I Binn. HO. Much has been said on both sides, on the effect of a former verdict. It is certainly not conclusive in the case of ejectments, as in other actions ; but it deserves more or less weight from circumstances.

No stronger circumstance can appear to give it weight, than what has happened in the present case. The contract for the purchase of this land was indeed made before the contest had received a decision; but after the cause had been solemnly tried in the highest court of judicature in this state, and a verdict given in favour of the title of the present defendr * 1 *ant, he had every reason to suppose the dispute was at rest. In confidence of that verdict and judgment, he makes very valuable improvements, by erecting costly buildings, and other additions to the value of the land.

This, though not a reason to divest another of a clear right, yet ought reasonably to create a bias in favour of a former verdict; and ought particularly to weigh with the court, not to change the possession, if they discover a reasonable doubt that justice has not been done in the last trial. This doúbt, I acknowledge, exists in my mind. I therefore give my voice in favour of a new trial. Smith and Brackenridge, justices, concurred. Verdict set aside, and a new trial awarded.