
    Timothy Democrat, lessee of Joseph Adams against Christly Goodlander, Dicterick Wirtz, Nicholas Welsh and Jacob Welsh.
    Papers found in the office of the deputy surveyor of the district, and in hisjhand-writing, may be given in evidence, to impeach his return of survey.
    Improvements within the Indian purchase of 1IG8, will not affect lottery orders, but may give a preference to lands really vacant, when made after the purchase and opening of the land office.
    Ejectment for lands on Dog Run, on the south side of the west branch of Susquehannah.
    The plaintiff claimed under an application in the name of David Laning, No. 149, entered 3d April 1769 ; a survey of 300 aeres and allowance made by Charles Lukens, on the 28th June 1769 ; a deed from Laning to John Cox, in consideration of 5s. dated 14th February 1772 ; a warrant of acceptance of the survey in favour of Cox, dated 23d April 1789, which was returned accordingly on the 5th May following ; a patent dated 11th of the same month, in consideration of 54i. 2s. 6d.; and a conveyance from Cox to Adams of 126 acres, part of the survey, in consideration of 90i. with special warranty, dated 17th February 1792.
    The defendants claimed under different titles, and contended, that the original survey made for Laning did not comprehend the interferences now in question. Coodlander and Wirtz claimed under an application in the name of Jacob Rees, No. 867, entered also on the 3d April 1769, and a survey of 325 aeres and allowance, made by the said Charles Lukens, on the 23d October 1769, and a consequent patent dated 28th January 1773.
    The two Welsh’s held, under an original settlement and improvement made by Daniel Nargang in 1771, on the lands, (whose two only daughters they had married) and a warrant for 200 acres taken out by him on the 16th November 1772.
    To show that the survey made by Laning did uot include tbe lands in dispute, the defendants offered in evidence certain original papers, found amongst the public papers in the office of the deputy surveyor of the,'district, in the hand-writing of said Charles Lukens, who died many years ago, as follows : one purporting to he a fair and complete survey made by him of 191] acres and allowance, on the 28th June 1769, on Laning’s application, the adjoining lands being called vacant. Another of the like kind, on Samuel Pearson’s application, No. 775, containing 238-J acres (which was also claimed by Cox;) both being indorsed “Newreturns made by order of John Cox,” in Luken’s hand-writing. Another, being a tabling of the same courses and distances of both surveys together, and a calculation made thereof, said to contain 429 acres and 72 perches, also indorsed by him, “ Returned January 1771.” And a second tabling of other courses and distances,, corresponding with the survey relied on, and making the contents of both to be 606 acres ; which papers were slightly opposed as evidence by the counsel for the plaintiff, who alleged that such presumptions of fraud in the deputy surveyor ought not to affect an honest bona fide purchaser, holding under a title strictly legal.
    But the court ruled, that the papers offered should be read in evidence. It is true, such papers should be treated with due caution, and consideration had of all the attendant circumstances. Here there is strong ground to infer, that the first surveys were enlarged by the deputy surveyor, by some act subsequent to January 1771. And it is observable, that Laning’s survey now contended for, calls for Jacob Rees on the south, though the survey for the latter was not made till October following ; and some of the corner trees on being blocked, do not correspond .with the time of survey, within nine years. Rees’s survey too calls for vacant lands on three sides, and mentions only Dieterick Rees and John Zimmerman as adjoining ; whereas, if Laning’s lay contiguous thereto, and was previously run by the same surveyor, he would probably have mentioned it. Mr. Cox was circumscribed and concluded by the lines of his survey, and the same shall be presumed to be made by the consent of himself or his agent, unless the contrary appears. When a survey has been completed, no new survey can be made on the same warrant or order without fresh directions, to the prejudice of other persons. It is certain, that a return of survey may be impeached by satisfactory proof ; but whether the circumstances in each case, taken together, will produce that effect, it is the province of the jury to determine.
    The court, in their charge to the jury, observed as to the Welsh’s pretensions, that though public notice was given at the opening of the land office on the 3d April 1769, “ that those persons who had settled, or made what they call improvements, since the Indian purchase, should not thereby acquire any advantage,” and lottery orders are not affected thereby, yet lands within that purchase may be fairly claimed by real subsequent settlements ; properly followed up on ground wholly vacant, after allowing a just and reasonable time for the appropriation of applications. If the jury are fully satisfied, that Laning’s survey did not originally include the lands afterwards occupied by Nargang in 1771, the only question will then be, whether the enlarged survey of Cox preceded the improvement; and it would seem from some of the corner trees being marked only nineteen years back, that the additional survey was some years posterior : but on this point the court were of opinion, that on the establishment of the first matter, the onus probandi as to the latter, is necessarily thrown on the plaintiff.
    Messrs. Ingersoll, Kidd and Hall, pro q-uer.
    
    Messrs. Duncan and D. Smith, pro def.
    
   Verdict for the defendant.  