
    Lessee of Bernard Dougherty against John Piper, esquire.
    A warrant, improvidently issued, without any money paid, directed by the surveyor general to a deputy to be executed, and a survey thereon, permitted tobe read in evidence. -
    Minutes of the Board of Property are uniformly read, to shew what passed before them. In many cases, acts done since the ejectment brought may be given in evidence.
    EjectmeNT for 108 acres and 152 perches, in Coleraine township.
    The plaintiff claimed under a slight improvement of some adjacent. land: made by James Wells, who sold to Edward Logston, on the 16th January 1765. Logston conveyed to the lessor of the plaintiff on the 26th of the same month.
    He offered in evidence the copy of an original warrant in his own name, dated 17th April 1766, for 250 acres, including his improvement, which he purchased of Edward Logston, who purchased of James Wells, lying on a branch of Juniata, called Piper’s Run, known by the name of the Flag Bottom, about 14 miles from Bedford ; interest to commence from 1st March 1762. On this warrant was indorsed a direction, under the signature of John Lukens, then surveyor general, to Richard Tea, deputy surveyor, to execute the warrant; also in the hand writing of the said Richard Tea, “Executed November 11, 1766, 293£ acres, “returned by R. Tea.”
    * il *The plaintiff likewise offered the draft of survey made " -I by the said Tea, on the nth November 1766, containing 293J acres.
    To the reading of these papers to the jury the defendant’s counsel excepted, and produced a certificate from Samuel Cochran, surveyor general, that no such original warrant, nor any traces thereof could be found in his office ; a second certificate from Francis Johnston, receiver general, that no money appeared in his office to have been paid thereon ; and a third certificate from David Kennedy, secretary of the land office, that the original warrant then remained in his office. It likewise appeared by the testimony of Mr. Justice Smith, that during the period in which William Peters acted as secretary of the land office, some complaints existed as to issuing warrants, where they had not been paid for, but that all those irregularities were cured when James Tilghman, esq. came into that office.
    
      Per citr. Let the warrant and survey be received in evidence; their operation will be judged of afterwards. It will be remembered, that the warrantee has not conveyed his right to any other person; and the warrant has issued from the office im-próvida.
    
    The defendant then shewed in evidence a warrant for 200 acres, including the forks of a large run, which empties itself into Juniata, dated 5th June 1762; a receipt for iol.-paid thereon, and a survey of 334 acres, made on the nth June 1767, by George Woods, including the Flag Meadow, comprehended in the plaintiff’s survey, and a house of hewed logs, two stories high, 26 feet by 24, which had been built by Dougherty.
    Pie then offered a copy of the minutes of the Board of Property of the 27th December 1768, whereby it appeared to be agreed, that the defendant’s survey should be returned; that the house built by the lessor of the plaintiff should be valued by William Proctor and James M'Call, and that the former should pay to the latter the value set by them, and the charges of surveying the warrant.
    
      This was objected to. The agreement, if such there was, is capable of other proof. This is evidence of a secondary nature.
    
      Per cur. The minutes of that board have uniformly been read to shew what passed before them. It is highly probable this agreement could be proved in no other way.
    The plaintiff then offered another warrant for 300 acres, dated *i4th March 1786, to the defendant, under which he wished to obtain a return of the lands in question; and 292 it was said, that he had thereby disaffirmed the contract. He trifled with the agreement; never obtained a return of his first survey, or a meeting of the referees; and in short, had done nothing whatever to carry the agreement into execution.
    The defendant’s counsel answered, that thé wishes of the defendant could not possibly be inferred from the warrant of 1786, which called for the adjoining lands. As to the lessor of the plaintiff calling on him to return his survey, he must shew himself interested therein in the first instance. The lessor of the plaintiff was more immediately bound to procure a meeting of the referees, as he was to receive the amount of their valuation, and ought to have furnished the account of surveying fees, which he had paid. But if disaffirmance of the stipulations before the Board of Property, would affect the title of the lands in dispute, the first act of that kind, was by the commencement of the present suit, which was brought to April term 1772, not to enforce the payment of the money, but to recover the specific land. The fact however was, that M'Call died shortly after the reference was agreed upon. Besides, the warrant of 1786, was taken out nearly fourteen years after bringing this ejectment.
   Per cttr.

The case has assumed a new shape. It is asserted on the one side, that the title of the plaintiff, if he ever had any, is extinguished by his agreement. On the other hand it is contended, that the defendant has infringed the contract, and the plaintiff offers this warrant of 1786 to prove it. Regularly, the title must be tried as it was at the time of the demise laid, but in a variety of instances, acts done since, may be shewn on either side, illustrative of the truth of certain facts, or of the intentions of the parties. No evidence has been given to shew what either party did respecting the agreement, between December 1768 and April term 1772, when this ejectment was commenced. If the lessor of the plaintiff was not to do the first act, he certainly should have gone on pari passu, with the defendant; and upon the death of M'Call, he ought to have applied to the defendant to agree to another arbitrator, and bring in his account of what he had paid for the survey. Nothing of this kind is shewn, but a suit has been brought for the recovery of the land. Therefore the taking out a warrant in 1786, without proving that some other act disaffirming the contract, was

Cited in 5 Watts 219 in support of the decision that the receipt of one who had been a chief clerk in the land office many years before, for the purchase-money of land, may be read in evidence in an action of ejectment for the same- land upon proof of the handwriting by a witness who knew it no otherwise than from knowledge derived in the office where the clerk was.

Messrs. Hamilton and Watts, pro quer.

Messrs. Duncan and Riddle, pro def.

*done before April 1772, cannot shew that the defendant first rescinded the contract.

The evidence must therefore be overruled.

At length under the recommendation of the court, it was agreed, to submit the case to the six jurors who attended the view, to do what was equitable and just, between the two parties.  