
    COURT OF APPEALS, JUNE TERM, 1820..
    Snavely vs. M'Pherson and Brien.
    eí^oük'üiToati. cómmMoiíbeUre presumption le|?s ti’oritytó admin-Where the return of a commis-
    if notice rxecuiion of a commsúun be tfvcn to the party cv?dScewll0S¿eh UsSEnf’ ^i'ven°to°the ad-
    ort“h/aisSUH) certifícate °of suroFiiis'hand w°ítí’vfdencFtoPshew n!n/oif™iam!"tu ibtunotiaeiwra!^ or shorten, or'in any manner tonfSect the position of ;he'landa5descri. tyeu m the grant v
    Appeal from Washington county court. Trespass quars. clausum fregit on a tract of land called Jlnlietum Works. The defendant (now appellant,) pleaded the general issue, A warrant of resurvey issued, and plots were returned,
    1. At the trial below, at October term 1815, the plaintiffs, offered in evidence the patent of Jlntietam Worjts, granted them the 14th of May 1810, for 9548'acresef land: and , . oltered evidence, that the trespass was committed as stat • . r et^ jn ^Warat,0Dí &nd as located on the plots in tlie c!msei ihe plots and illustrations thereof were also given ^ evidence. The plaintiffs :jlso proved their location of-The Resurvey on Hills and Bales and the Vineyard, aslocatecl on the plots, with two degrees of variation; and the defendant having offered in evidence the patent of The Resurvey on Hills and Bedes and the Vineyard, and his location of that patent on the plots; and having also given in evidence the certificate of said survey, dated the 8th of August 1763, and made for Joseph Chapline, and the na- , 1 tent on that certificate, granted the 9th or November 1771, • ' • f to Joseph Chaphne and James Chapline for 2256 acres. ■* J x * • And the plaintiffs, in order to prove the truth of their loeation of The Resurvey on Hills and Bales and the Vineyard, having first shewn that the lant^ for which the defendant took defence, was a part of the land called The Resurvey on gills and Bales, and ¡he Vineyard, and that he claimed and held the same under the original patentees, and that John Murdock, who made the original survey called The Resurvey on {he Hills and Bales and the Yincya/rd, is dead, offered to give in evidence the following paper, viz. The. ceitificate before mentioned, made f„r Joseph Chapline, of 'The Hills and Bales and the Vineyard, annexed to and on the back of which was this indorsement; “This resurvey is confined as follows, viz% From the beginning to No. 4 joins Ward’s tyring. Fromiiumber 4 to 9 Elswick’q.Dwelling,” &c. (Signed) “JvM.5’,
    And which purported to be a copy of the original certi'. ficate of The Resurvey on Hills and Bales and the'Vineyard, and of certain descriptions annexed thereto, and'endorsed thereon, statipg hew the said tract lay. and as connected with the adjoining lands, so far as such adjoining hmds were located on the plots in the cause, in order to prove their location of The Resurvey on Hills and Dales and the Vineyard to be correct. To this evidence the defendant objected; but the court, \JBuchanan, Ch. J.] was of opinion that said paper was competent evidence to go to the jury, not to elongate or shorten any of the lines of the certificate, or patent issued thereon, or in any manner to niter or change the position of the land as described in the grant, but as the declarations of the surveyor who was dead, •its to the original running of the lines of the land as expressed in the certificate and patent. The defendant excepted; and the verdict and judgment being against him, he appealed to this court, where the case was argued at June term 1817", before Chase, Ch. J. Earle, Johnson, Martin and Dorsey, J.
    
      L. Martin, for the appellant,
    relied on and cited the act of ~t812, ch. 82. Bladen’s lessee vs. Cockey, 1 Harr, fy McHen. 280. Scott’s lessee vs. Ollabaue'h, 3 Harr, fy M‘Hen. 511. Land. Hold. Ass. 381, 396 to 400.
    Taney, for the appellees,
    also relied on the act of 1812, ch. 82, and on Peake’s Evid. 91. Thornton’s lessee vs. Edwards, 1 Harr. 8¡- MiHen. 158. Shorter vs. Dozier, 3 Harr, fy M‘Hen. 238; and Shorter vs. Boswell, decided in this court at December term 1808.
    A procedendo Was awarded, and the cause remitted to •the county court for a new trial.*
    2. At the new trial in November 1318, the plaintiffs read in evidence the plots and explanations, and proved the trespass laid in the declaration. They also gave iif evidence the grant of the tract of land called Antietam Works, and the tract called The Resurvey on Hilts Dales and the Vineyard,. And also gave evidence, that a certain William Norris was a deputy surveyor, and executed in the county the original survey of The Resurvey on Hills . Dales and the Vineyard; and then offered to read in evidence the following commission, with the proceedings thereon, and the return of the same,'and the deposition of William Bayly taken under said commission, and the' notes annexed to the certificate of the survey of The Resurvey of Hills Dales and the Vineyard, marked A, (admitted to be the original paper referred to in the said commission,) as far as said notes were located on the plots in this case by the plaintiffs. This commission was in thesusual form, authorising John Marbury, of the District of Columbia, to take testimony in the cause. The oath annexed to the commission to be taken by the commissioner, appeared to have been taken before Thomas Cocieran, and that to be taken by the clerk to have been taken by him. The interrogatories exhibited to the commissioner by the plaintiffs were set out, as also his notice to the defendant to attend the execution of the commission, with an affidavit of its service. The return then proceeds as follows i “Depositions of witnesses produced, sworn and examined, at my office in George Town, by virtue of a commission hereto annexed, issuing out of the Washington county court, Mainland,to me directed, for examination of witnesses in a cause there depending, between John M'-l-’herson and John Brim, plaintiffs, and Casper Snavely, defendant. The parties bavin? first been notified by me of the timé and place required to attend, and Mr. Richard H. Fitzhugh having been appointed clerk to the commission. Tuesday 17th March 1818, •net according to appointment, when neither of the parties appeared in person, or by attorney. TFilliam Bayly, of Washington county, District of Columbia, aged about 76 years, a witness produced and sworn on the part of the defendant. To the first interrogatory he answers, and says,” &c. “To the second he answers—He was very well acquainted with John Murdoch, and lived with him as a clerk. Murdock was the surveyor of Frederick, when it included Allegany, Washington and Montgomery counties, and has been dead about • thirty years. To the third he answers—! have seen John Murdoch write often; I know his hand writing well. To the fourth (looking upori the original certificáte marked A. and signed J. Marbury, in an executed commission from said court in the base of Suavely vs. Brim, enclosed;) lié answers, that such certificate is in the hand writing of Zachariah White, ánd the signature of J. Murdoch is his signature.” He also proved that the notes annexed to said certificate were in the hand writing of White, arid the initials of Murdoch’s name, at the bottom of said notes, ending with the words “Joins Addition tó Ward’s Spring,” are in the writing of said Murdoch, and the initials of Murdoch’s name to the notes ending with the words uyoung apple trees” to be the writing of said White. To the sixth he answered—He knew Zachariah White, that he was clerk to' Murdoch, and in iris employment four or five years; had often seen White write, and was well acquainted with his hand writing. To the seventh he' answered—'Said White was Murdoch’s clerk at the time said certificate bore date; ánd that' he was dead, and had beeii for many years. No other witnesses appearing, the commission was closed, and signed and sealed by the commissioner.
   Chase, Ch. J.

delivered the opinion of the court. Without deciding the question, whether the notes of the survey- or could be received as the declarations of the surveyor, who is dead, on being proved, the court are of opinion that the notes in this case are not official acts, and can derive, no additional power or efficacy by being annexed to the certificate; being offered as the private observations of the •surveyor, his hand writing must be proved; and proof of the certificate is no proof' of the hand writing of the surveyor, as to these notes. They cannot be considered as papers, copies of which can be received as evidence under the act of assembly of 1812, ch. 82.

JUDGMENT REVERSED.

Then follows the certificate of survey of The Resurvey on Hills and Dales and the Vineyard, dated the 8th day of August 1763, and signed “Pr. John Murdoch.” Annexed to, and on the back of the aforegoing certificate, is as follows, viz. “This resurvey is confined as follows, viz. From the beginning to number 4 joins Ward’s Spring. From No. 4 to 9 joins Elswich’s Dwelling,” &c. &c. “From the end of the 128th to the beginning joins Addition to Ward’s Spring. J. M.”

To this commission and return, and the evidence taken Under it, being read to the jury, the defendant; by his counsel, objected; but the court, \_Buchanañ, Ch. J. and Shriveri A. J.] overruled the objection, being of opinion, and so directing the jury, that the same was competent evidence to go to them, not to elongate or shorten any of the lines of the certificate or patent issued for The Resurvey on Hills, Dales and the Vineyard, or in any manner to alter or change the position of the land as described in the grant, but as the declarations of a person or persons now dead, of the place where the lines of the land, as expressed in the certificate and patent, did originally run. To this opinion the defendant excepted; and the verdict and judgment be--' ing for the plaintiffs, he appealed to this court, where the cause was argued before Earle, Johnson and Dorsey, J.

Stephen, for the appellant,

relied on the act of Nov.-1781, eh. 20, s. 14, and Guppy vs. Brown, 4 Ball. 410.

Taney, for the appellees,

cited The State vs. Leny, 3 Harr. 8f MiHen. 591. Bidgely’s lessee vs¡ Ogle and Leonard, 4 Harr, fy MLIen. 126.

Earle, J.

delivered the opinion of the court. A cominission to take testimony, executed in the District Of Columbia, and returned by the commissioner therein named, with the evidence taken under- it, were read by the plaintiffs ill the court below to the jury,- in the trial of this cause, and an objection was made by the defendant to the competency of the evidence; who contended that the commission and testimony under it ought not to be received as such.The court below thought they were legal evidence,- and expressed an opinion, that the testimony could be Used as the declarations of a person or persons then dead; of the place where the lines of the land expressed in the Certificate of survey and patent did originally run, but could not be used to elongate or shorten any of the lines, orto alter or change,in any manner, the position of the land as described in the grant. In this opinion the court entirely coincide. It has been heretofore decided by this court, that notes or memo1 randa endorsed by the surveyor, or others-, on a certificate of survey returned into the land office, make no part of the certificate, and that an Office copy of such endorsements is not competent evidence. Thus stript of official consequence,- the court cannot perceive that any dangerous use Can be made of these notes or memoranda, especially when it is proposed to restrict the use of them-, and not suffer them to be-applied to decisive purposes in elongating or shortening' lines; or in altering and changing the position of lands as described in the grant. They are to be considered in' the light of private notes or memoranda, and their being endorsed on an official paper, ought not to prevent a party from using them.- They are equivalent to the declarations of persons long made, and who at the trial are dead,- and in this view the court are of opinion they are admissible proof.

The court are of opinion, that there is sufficient appealing in the return of the commission, executed in the District of Columbia, to establish its due execution.

judgment affirmed.  