After the testimony was closed, Yeates, Just, interrupted the defendant’s counsel who were opening their defence. He said, Judge Smith’s testimony had fully obviated one difficulty which presented itself, respecting the survey; but he thought it impossible to support the survey, unless the original warrant had been signed by the governor for the time being, as the chief commissioner of the Board of Property, or money had been paid thereon to the receiver general.
The objection however appearing to be a surprise on the plaintiff’s counsel, which they were unprepared to meet or answer, he recommended that a juror should be withdrawn, on the lessor of the plaintiff paying the costs of the court. This recommendation was agreed to, and the plaintiffs counsel ^engaged to discontinue the suit before the next court, unless it could be proved that money had been paid to [*529 the receiver general on the warrant, previous to the survey.