
    [Lancaster,
    June 1, 1828.]
    UNGER against WIGGINS.
    'IN ERROR.
    Where it did not appear how long the defendant in an ejectment had been in possession of the land in dispute, a lessee of the plaintiff, under an old lease, who.had pi'ob'ably been ouf of possession twenty years "or more, and against whom no suit had been brought, was held, in the absence of further evidence to. presume liability for mesne profits, not to b.e incompetent- as a witness for the plaintiff, on the ground of-interest.
    Though the acts of a deputy surveyor, done for the benefit of A., cannot be given in evidence by him, in support of his own claim, without producing the authority under which the deputy acted, yet the unauthorized act of .the deputy,- done, or attempted by the procurement of A, may be given in evidence by B. to show the invalidity of A’s. title.
    Where a book, purporting to be a book of a deputy surveyor, containing his field notes of a resurvey, had been frequently in evidence before the court, and three times in the very cause under trial, without any question, and- no proof of hand-writing was called for, but it was objected to.on other grounds, held,_ that it was not error to permit, it to be read to the. jury, without proof that it wás the book of the deputy surveyor, or of his hand-Writing. -
    Writ of error to the District Court of Dauphin county.
    Ejectment, in which the'plaintiff in error was defendant below, having been substituted as. devisee in place of. George Unger, deceased, the original defendant. - . ■ '
    . The cause came up on 'three bills of exception to evidence..
    1st. Wiggins, the plaintiff belo.w,: offered in evidence (inter alia,) a lease of the land in dispute, granted by himself to one Jacob Shrike, dated the 1st of March, 1797. After proving, that William Simonton, the only subscribing witness to' the lease, was d¿ad,.he produced Shriké, the lessee; to. swear that he saw Simon-
      
      ton subscribe his name to the paper as a witness to its execution. This was opposed as not being the best evidence. Shrike,- himself, was also, objected to as a witness, on the ground of incompetency from interest, having occupied' the land some time under Wiggins,- and, therefore, liable to -an action by Unger for the mesne profits. The evidence was admitted, arid a bill o,f exceptions sealed. The second exception was to the deposition of Thomas Smith, with a diagram and-drafts annexed, which need' not be. further stated, as it was not relied upon by the counsel of the plaintiff in error.
    , 3. The plaintiff below, further to maintain-the issue on his part, offered to read 'in'evidence, from a book of Bartram Galbraith, page 716, notes, purporting to be the field notes of the said Bar-tram Galbraith, of a resurvey made for George Unger the 19th of December, Í792; to which offer the defendant objected, but the court, on argument, overruled the said objection, and directed the said notes, without further, proof to be read to the jury. The third exception was thereupon taken. Galbraith was dead at the time of the trial. ■ . ’ . .
    
      Elder, for the plaintiff in eri’or.
    
    Shrike, the witness, was liable to an action for mesne profits, unless the plaintiff below recovered the land. He was called, therefore, to testify for -himself. As to the book, said to be Bartram Galbraith’s, it was admitted in evidence expressly without further proofthat is, without proof of any .authority to make the- res.urvey; without proof of any request, procurement, or knowledge of Unger, and without the least pretence of proof to the jury, that the book itself was Galbraith?s, or even of. the .hand-writing.- As to authority,-none could possibly exist for the resurvey.- -It was of. a tract already patented: Had the plaintiff below-proved any agency .or consent in the defendant, or those he claims under, it might have been evidence against him, though an unwarranted, act. No proof of the kind was attempted; yet it was easily to be procured if the fact had been'so. Why were' not the chain carriers produced, or some one who was present, or at least the lines, on the ground .proved? The defendant is not to be held bound by the^ unauthorized act of a deputy surveyor; far less, is he to be bound; by the mere private declarations of a sum veyor, without evidence, except from those declarations, that the act itself has ever been performed. The declarations of the deputy-surveyor are not evidence, though he dies- before trial, and all his papers are burnt. Bonnet v. Devebaugh, 3 Binn. 175. A survey is not tó be.adnlitted without producing the authority for it. Wilson v. Stoner, 9 Serg. & Rawle, 39. Even supposing the book to have been brought from the. surveyor’s office, yet every document from the offiee is not therefore official. Vincent v. Lessee of Huff, 4 Serg. & Rawle, 299, relied on against us, is .the very doctrine we contend for; It proves, that not the declarations only of the deputy surveyor, but even his acts, if without .authority, are evidence against no one. Here, if the book had been otherwise admissible, there was no semblance of authentication. ■ ■ .
    
      Douglas and G. 'Fisher, for the defendant in error.
    It is very-true, there was- no direct formal evidence; that the book offered, was what it purported to be, and was from the deputy surveyor’s office, nor that the hand-writing was Mr. Galbraith’s; for, indeed, the book and the hand-writing were .both as well known in our court-house, as’the face of the gentleman himself while living. The necessity of swearing Witnesses to the identity of the one or the other, would hardly occur totlie mind; and this cause having been already tried three or four times, and the same: book read- on every trial, we may be excused for not offering on oath, solemn proof,. which nobody asked for, of facts which nobody doubted: It is impossible to -imagine, that.the resurvey for. XJnger’s benefit, was not procured and paid for by him. The plaintiff might very Safely be challenged to produce the chain carriers after the lapse of more than thirty years, and When the transaction at the time must; from the nature"of it, have been unknown to him. So far from denying that there was no pretence of authority for Unger’s reserve}', it is what we chiefly insist upon. . We offered the evidence for the sole purpose of showing-, that this bare act of injustice was the only shadow of title at that time against our client. They cited Miller v. Carothers, 6 Serg. & Rawle, 215. Vincent v. Lessee of Huff, 4 Serg. & Rawle, 299. Farmers’ Bank of Lancaster v. Whitehill, 16 Serg. fy Rawle, 90. ■-
   The opinion of the court was delivered-by.

Top, J.

The subscribing witness being dead, proof of his handwriting appears to have been well enough made .out by one who saw him put his name to the very paper.. I think'no interest was shown to exclude Shrike as a Witness. /His lease was in.1797. How long Unger, the defendant below, against whom the witness was called, had. been in possession of the contested' spot, did not appear. But as no' suit had been brought against Shrike for such a great length of time, and he had been out of possession probably twenty years, or more, it. would have been wrong, without further evidence, to presume, that any liability-for niesne profits still existed against the witness. As to the admission of the book, purporting to be Bartram Galbraith’s, and the -field notes of the resurvey, of the 19th of December, 1792, it had .been shown already.in the cause, that Unger, the defendant below, held one hundred and eighty acres on a warrant and patent, in the name of Jacob Garver, granted prior to the revolution; the piece of land in dispute being about twenty-two iacres, adjoining the said one hundred and eighty-acres tract of Unger. Wiggins, the plaintiff beloW,. claimed the twenty-two acres under a Warrant for for- one hundred acres, dated 'the same 19th of December, 1792, granted to George Rimion, and calling for Jacob Garveir’s survey as one of its boundaries;- that is to say, covering the ground in question in this cause. On this warrant for one hundred acres, Mr. Galbraith was the surveyor who made the survey for Wiggins; and in- making it, instead of adjoining the-line of' Unger, it appears that he left out the twenty-, two acres, now in dispute, next tó Unger’s tract. Wiggins complained of this- as injurious to him, and as excluding some of the best of the land. Therefore, he, Wiggins, petitioned the Board of Property, and obtained ah order for a résuhvey. And on the 21st -of May, 1806, a resurvey was made for him by Levy G. Hollingsworth, deputy surveyor, of. one hundred and a half acres, including the land in dispute, according to-the call of the warrant, and throwing off a part of.the .former survey next .the mountain. But before-, this resurvey by Hollingsworth for Wiggins, viz. on the 6th of January, 1802, Unger had obtained a warrant for thirty acres, and on the -17th of the same month, a survey on it, including the twenty-two acres in question. There were, other matters of fact contested in the cause not material to be stated.' Galbraith’s book and notes of the resurvey were objected-to oh behalf of Ungér, because the resurvey being wholly without authority, could not be legal evidence; and, because there was no , proof of the resurvey having been attempted at the request, or with the knowledge of Unger, the defendant, or of any one under whom he.claimed. These.objections were overruled by the court below, very rightly, in my opinion. Because, by the rule of law, the acts of a deputy surveyor, done for the benefit of A., shall not be given in evidence by A., to support his own claim, without producing the authority under which the deputyacted, it'by no means,-follows, that the unauthorized act of the "deputy, done, or'attempted by the procurement of A., shall not be given in evidence by B. to, expose the invalidity of A’s. title. Here, the total absence of all pretence of right to extend .the lines of Unger’s patented tract, so as to include the twenty-two acres, was the very matter which made the evidence material to the plaintiff below. It was strong proof, that Unger, on the day of the date of the plaintiff’s warrant, had no legal or equitable title to the land. Equally strong was it to support the allegation of Wiggins, that the first survey on his warrant, by Mr. Galbraith, had been returned injuriously, by throwing out the land in question; and strong, also, to show for what purpose,, and in whose favour the thing was so done. But, it is said, the unlawful act of the deputy shall not be thus visited upon. Unger, without some evidence to show Unger’s procurement, or in some respect, to implicate him in the matter. Most clearly the law is so.- But equally clear it is, in my opiniun, that the able judge(the Hon. Charles Smith,) who tried this cause, peculiarly versant in these questions of original title, and whom, as he is no longer on the bench,' I may be permitted to mention in this way, so directed the jury. We have not the charge before us, nor was it excepted tp by either party. Unger’s concurrence in the resurvey, was a matter of fact. Though it was a fact to be proved, yet it was not required to be proved by an eye witness. Unless contradicted, or explained, the evidence to implicate Unget', would seem to me almost conclusive. The illegal resurvey was all for Unger’s advantage, .or supposed advantage, and in no way for the advantage of •Galbraith, or of any other person. Unger claimed the ground thus taken in by the resurvey, and his devisee yet claims it. He owned the tract thus attempted to be enlarged; and on the first survey on Wiggins’ warrant, made, on' the 13th of August, 1795, Mr. Galbraith notes on the margin of the draft, the' land in dispute as the. property of Unger. '

It is said, there was no proof that- the book had been Mr. Galbraith’s, or of the hand-writing; and so it does appear from the record. But it is not denied that the -book had been before in evidence innumerable times , in the courts of Dauphin county, and three times in this same cause, without any question; and, that there was no call for proof of hand-writing. This part of the case would, therefore, seem to fall under the rule applicable to matters of practice, that.sometimes, what is not expressly denied is admitted; and, that to specify some objections to evidence, waives all objections not mentioned. ■ ■ , •

Judgment affirmed,  