
    Preston v. Bowen.
    Decided, February 3d, 1819.
    i. County Surveyor — Copy of Survey — Duty to Furnish. —It is part of the official duty of the surveyor of a County, to furnish, in reasonable time, when demanded, copies of all surveys, not specially excepted In the Land Law.
    See R. Code of 1819, c. 86, s. 38 & 69.
    3.Same- -Saute — Refusal to Furnlsii — Case,—A special action on the, case lies against the Surveyor of a County for fraudulently refusing to furnish copies of surveys, when lawfully demanded, and thereby enabling a third person to locate the lands, therein described, before the plaintiff.
    3. Same — Same—Same —Samo—Special Plea. — Where the declaration charges that the defendant, contrary to his official duty, refused to iurnisli copies of certain surveys, when demanded by the plaintiff; if the defendant be excused, by any provision in the land-law, from furnishing the copies so demanded, he ought to plead it specially.
    4. Evidence — Rejection—Objections to Declaration.-Kvidence offered to the Jury, and properly applying to the issue ioined, ought not tobe reiected on the ground of objections to the declaration.
    5. Verdict — Damages Excessive — Release.—Upon a motion for a new trial, on the ground that the damages found by the Jury are excessive, if the plaintiff release such part thereof as, in the Court's opinion, ought to be released; and thereupon, j udgment be entered for the residue; such j udgment, not appearing unreasonable, should be sustained by the appellate Court.
    6. County Surveyor — Refusal to Furnish Copies of Survey — Action-Instructions.—in an action against the Surveyor of a County, for refusing to furnish copies of certain surveys of lands which the plaintiff wished to enter as waste and unappropriated; the court on the plaintiff’s motion, instructed the Jury, “that the surveys in question having been made in May 1774, the Land was liable to be entered as vacant in December 1809, unless they were returned to the Land office; but that the plaintiff was not bound to shew that they were not returned to the Land office in due time:’’ and this instruction was not considered erroneous by the Court of Appeals.
    A special action on the case was brought, in the Superior Court of Washington County, by Henry Bowen against Robert Preston.
    The declaration contained two counts. The 1st. stated, that the plaintiff, on the twenty second day of December 1809 applied to the defendant, Surveyor of the County of Washington, at his office in the said County, “for copies of six surveys, which had been made in the name of and by a certain John Donnell, and James, Robert and John Barr, (which said surveys are ^'described to have been made, the one half for the said John Donnell, the other half for the said James, Robert and John Barr, as tenants in common and not as joint-tenants,) and were of record in the Surveyor’s books of the said defendant in his said office; the plaintiff being then and there ready to pay the fees allowed by law to the defendant, for making the said copies, whose duty it was to furnish them to the plaintiff; he the said plaintiff wanting them for the purpose of enabling him to enter and locate the lands circumscribed and 'included by the said surveys, which then had become waste and unappropriated, and to the locating of which the said copies were essential and important:” that the defendant, contrary to his official duty, delayed and refused to make out and deliver those copies to the plaintiff, and thereby delayed and prevented the plaintiff from making his entries and locations, until other persons, with whom the said defendant had combined and confederated for the purpose of defrauding him, had entered and located the said lands. The 2nd Count stated, that “whereas the plaintiff applied to the defendant surveyor of Washington County, at his office in said County, and furnished him memoranda for copies of certain surveys, which were of record in the said office, and were made in the name of Jolm Donnell, and James, Robert and John Barr and were commonly known by the name of Donnell’s surveys, and was then and there ready to pay the fees allowed by law for making the copies of said surveys, amounting to six in number, containing one thousand and fifty four acres; copies of which said surveys were necessary to enable the plaintiff to enter and locate the said several tracts of land, which had then become waste and unappropriated and subject to the location of the plaintiff:” and the defendant fraudulently delayed and refused to make out and deliver those copies to the plaintiff within a reasonable time after the application, and, fraudulently and contrary to official duty, combined with one John Preston junr. and delayed to deliver those copies to the plaintiff, in order to enable the said John Preston junr. *to enter and locate the samé lands before the plaintiff; and thereby the plaintiff was prevented from entering the lands, and John Preston junr. was enabled to enter them before him, and did enter and locate them before the plaintiff; and thus the plaintiff was prevented from obtaining the lands; by reason whereof, he was injured, &c.
    At the trial, upon the plea of not guilty, the plaintiff offered in evidence genuine copies of four Entries made by John Preston junr., December 23d 1809, (which are set forth in haec verba,) with the view of shewing, by that and other evidence, that the defendant and John Preston junr. his confederate had deprived the plaintiff of the opportunity of locating the same lands comprised in the surveys, mentioned in his declaration, copies of which he also offered in evidence, (in haec verba:) whereupon, the defendant objected to the admission of the evidence, on the ground that the description of John Preston junr’s. surveys and entries, in the declaration, was so general and vague that no such evidence ought to be received.
    The Court overruled the objection and admitted the evidence.
    Copies of two other Entries by John Preston junr. and two other surveys, (both set forth in haec verba,) were offered by the plaintiff, for the same purpose for which the others were offered as aforesaid. The defendant, for the same reason, objected, but the Court admitted them also.
    The defendant objected, that, the statement in the declaration, “that the land circumscribed and included within the boundaries of the surveys,” therein referred to, “had become waste and unappropriated,” (without stating how,) being too vague and general, the Court should not permit any evidence to be given relative to such statement. In this objection, he was again overruled.
    He moved the Court to instruct the Jury, that the surveys mentioned in the declaration, as those of which the plaintiff demanded copies, were legal, valid and subsisting appropriations of the lands therein comprised, at the time when John Preston junr. made his entries, and when the plaintiff was prevented from lo-eating the same land, *as stated in the declaration, unless the plaintiff proved that the surveys had become void. The Court refused to give such instruction, and, on the plaintiff’s motion, instructed the Jury, “that, the surveys in question having been made in May 1774, the land was liable to be entered as vacant land in December 1809, unless they were returned to the Eand office; but that the plaintiff was not bound to shew that they were not returned to the Eand office in due time.”
    To these several opinions of the Court, the defendant filed as many bills of exceptions.
    The Jury found for the plaintiff, and assessed his damages to one thousand dollars.
    After the verdict was rendered, all the evidence, that had been given on the trial, was stated at large, and made part of the record ; and a motion was made for a new trial; 1st, because the Jury had rendered a verdict without sufficient evidence; 2dly, because the damages were excessive. The Court thought the damages excessive, but, on the plaintiff’s releasing $492 part thereof, overruled the motion; whereupon the defendant again excepted.
    The defendant moved, also, in arrest of judgment; 1st, because the declaration stated no cause of action ; no law having imposed it as a duty on the Surveyor to furnish copies of Surveys generally: — 2dly, because it did not state a case from which the Court could decide that it was not embraced by the 29th section of the Act concerning the Eand Office, passed December 17th, 1792; and 3dly, because the declaration was too general, and wanted precision.
    The Court overruled this motion also, and entered'judgment for the plaintiff for $508, damages, and costs; from which the defendant appealed.
    Stanard for the appellant,
    waived the objections taken at the trial, but insisted on the reasons assigned for a new trial, and in arrest of judgment. He also remarked, that the appellant was not apprised by the plaintiff of the purpose for which the copies were wanted, in order that he might know the importance of a prompt and immediate compliance with the request.
    *Leigh for the appellee.
    By the errors in arrest of judgment it is objected to the declaration, that it states no cause of action, because no law has imposed on the Surveyor the duty of furnishing copies of surveys, generally. I own, I can find no such law. Neither can I find any law imposing it as a duty on the Register of the Eand Office to furnish copies of Patents. The Eand law says, only, that the Patent shall be recorded by the Register, and that a copy attested by him shall be as good evidence as the original,  So, too, I have searched in vain for a law requiring the Clerks of any of the Courts of Justice to furnish copies of Deeds, Wills or Records, generally. Will this Court then adopt a principle, which, exempting a Surveyor from the duty of furnishing copies of documents recorded in his office, will go the length of exempting the Register from the duty of furnishing Copies of Patents, and the clerks of the Courts of Justice from furnishing copies of records and instruments recorded in their respective offices? But the offices of the Register and the Clerks are public offices, for recording, and thereby preserving, certain muniments of titles and rights; and certain fees are allowed them by law, for furnishing copies required of them: — it results then, from the very nature and end of the institution, that they are bound to furnish copies. In like manner, the Surveyor’s office is a pub-He office instituted by law for recording and preserving certain muniments of the inception of tilles; fees are appointed by law for copies furnished by him; and therefore it follows, from the nature and end of the institution, ihaf every Surveyor is bound to furnish copies of documents recorded in his office,  It is-provided in the Land £<aw, that the Surveyor shall not, within twelve months after a survey made, issue or deliver any certificate, copy or plat of land, except to the persons for whom the survey was made, or their order, unless in case of Caveats. But for this provision, the Surveyor would have been bound, at any time, to deliver Copies of surveys to any body demanding the same: — the provision plainly supposes that such had been
    his duty. Except in the case so pro vided for, any person *is entitled to demand a copy of any survey. It is farther provided,  that it shall not be lawful for the surveyor to withhold from any person entitled to demand the same, a plat by him demanded; saving that he shall not be bound to deliver a plat to any nonresident, ’till his fees are paid or secured. This provision furnishes foundation enough to sustain the present action, even if it were founded on the Surveyor’s refusal to furnish the Copy, simply. But that is not the only foundation of the action. The declaration charges that the Surveyor confederated with another to deprive the plaintiff of his location, and to vest the fruits of his diligence in such confederate: a proceeding surely contrary to his official duty.
    It is also objected to the declaration, that it does not state a case from which the Court can decide that it was not embraced by the 29th section of the land law, before cited. But, if the Surveyor was bound to furnish copies generally, and he could have defended himself on the ground that these copies were not demandable by the plaintiff, as being within the exception provided by that section, he ought to have pleaded that matter specially. The declaration alledges, substantially, that the copies demanded were not within that exception ; for it says that it was his official duty to furnish them, which could not be, if the provisions of that section applied to the case. However, all objections of this kind to the declaration, are cured by the verdict. It cures omissions of averments of any matter, without proving which the Jury ought not to have given such verdict; and this they should not have done, if it was not proved that the copy of the survey was demanded more than twelve months after it was made.
    As to Mr. Stanard’s objection, that the appellant was not apprised by the plaintiff of the purpose for which he wanted the •copies, the answer (which has been anticipated. and is I think conclusive,) is, that the declaration alledges that the defendant not only failed, but fraudulently refused to furnish the copies. The action was not brought for mere neglect of duty, but for a wilful and vicious denial of right.
    *The defendant’s exception to the Court’s refusal of a new trial, can not be supported. The first ground of the motion, that the evidence was not sufficient to warrant the verdict, is surely untenable. The Jury, (not the Court,) is to judge of the sufficiency of testimony, unless it be withdrawn from their cognizance by a demurrer to the evidence.  Upon the second objection to the verdict, the defendant, in fact, succeeded. The Court refused the new trial, only because the plaintiff released nearly half the damages assessed by the Jury. It does not appear that the defendant himself, after that release, made any complaint as to the quantum of damages.
    
      
      Verdict — Damages Excessive — Release.—The principal case is cited with approval in Moses v. Cromwell, 78 Va. 676.
    
    
      
       Ed’n. of 1794, 1803 and 1814, c. 86, § 43, 44.
    
    
      
       Ed’n. of 1794, 1803 and 1814, c. 86, § 25, 27, 28, 55; Ibid, c. 115, § 1.
    
    
      
       Ibid. § 29.
    
    
      
       Ibid. § 54.
    
    
      
       Note. See Keel and Roberts v. Herbert, 1 Wash. 203; Martin and Jones v. Stover. 2 Call, 514—519; Austin v. Richardson. 3 Call, 201-206; Fisher’s executor v. Duncan and Turnbull, 1 H. and M. 563; and Hollingsworths v. Dunbar, 5 Munf. 199.
    
   By the Court,

the Judgment was affirmed.  