
    Lessee of Benjamin Elliot against Jacob Bonnet.
    An early continued personal resident settlement is preferable to a later patent.
    Recital in a warrant of acceptance will bind proprietaries and those claiming under them by subsequent rights; aliter, of those under elder rights. _
    _ Practice of the surveyor before the revolution, as to 10 per cent.’surplus.
    Ejectment for lands in Providence township, brought to November term 1793.
    The facts on each side turned out in evidence as follows : ■
    The plaintiff claimed under an ancient settlement and improvement, made near the head of the Snake Spring, begun in 1754 by Thomas Croyle, and continued by him and those who held under him, whenever the state of the country would admit of it, until December 1788. Valuable improvements were made on the land, as well by buildings as otherwise.
    In June 1762, Croyle sent his son with money to the secretary oí the land office, with directions to procure a warrant for 300 acres of land, including his improvements. He made three applications to the office for that purpose, but met with refusals,- and was permitted to take out a warrant for 100 acres only, dated 10th June 1762, adjoining lands surveyed to George Cro-ghan, and including his improvement at the mouth of Snake .Spring. On this warrant a survey of 123 acres and 123 perches was made so late as 4th March 1768, by George Woods, for Richard Tea, deputy surveyor of the district.
    On the 26th May 1763, a warrant of acceptance issued in favour of George Croghan, reciting that “ by our consent and “direction, there was surveyed in 1755 by John Armstrong, “ D. S. a tract of land on Snake Spring, containing 390 acres “and hi perches, for which he agreed to pay 15I. ios. per hun“dred acres, and interest from 1st March 1755,” and requiring the surveyor general to accept the survey and return it into the secretary’s office. The survey offered was- dated 1755, with the signature of John Armstrong, D. S. (containing as above and calling for Thomas Croyle on one of the lines,) but without specifying any authority under which it was made. This survey was opposed by the plaintiff’s counsel, but it was *al- r*2gg lowed to be read by Yeates, J., being called for in the ^ warrant of acceptance, who said he would express his sentiments thereon fully to the jury.
    [Smith, J. took no part in the cause, having been formerly concerned in it as counsel.]
    On the 30th May 1763, a patent issued to George Croghan in consideration of 60I. 2s. 2d., who on the 1st December following conveyed the same to Richard Tea-, and it afterwards by several mesne conveyances became vested in the defendant.
    On the 3d August 1767, Thomas Croyle obtained an application for 200 acres, adjoining his warranted land in Croyle’s Valley, on the east side of the Ray’s Town branch of Juniata, on which there was surveyed 158 acres by George Woods, on 12th March 1768.
    On 14th April 1774, Croyle executed a deed to Robert Elliot in consideration of 330I. for three tracts of land, the first including the mouth of Snake Spring, in pursuance of his warrant for 100 acres ; the second adjoining thereto,.in pursuance of his application ; and the third held by improvement, including the fountain of Snake Spring, with a covenant therein, that he would prove his right of improvement to be antecedent to the right or claim of any other person. And on the 30th March 1780, Robert Elliot conveyed the same lands to the lessor of the plaintiff, with covenant of general warranty as to the improvement right. In December 1788, the tenant of the lessor of the plaintiff was dispossessed of the lands claimed by improvement, under a judgment, without a hearing on the merits.
    
      After the cause had been fully argued by Messrs. Duncan and Riddle for the plaintiff, and by Messrs. Hamilton and Watts for the defendant, Yeates, J. told the jury, that the case resolved itself into two questions, ist. Whether the settlement title being the earliest, was not preferable to the patent ? 2d. Whether the improvement right had been abandoned ?
    The jury were the exclusive judges of the credit of witnesses, but they ought not on slight grounds to discredit disinterested testimony, and particularly when fortified by circumstances usually attendant on such cases. If the witnesses were believed, they shewed an actual personal resident settlement by Croyle at the head of the Spring, though he had a shed and some cleared land at the mouth. He had cleared several acres towards the mountain and downwards towards the Juniata, and must in the nature of things, have intended to include the whole in his set-Rol *tlement right. His continuance on the land, when there 91 was not impending danger, his early returns after the dangers had ceased, evinces his unequivocal intentions. The survey of 1755 calls for his lands as a boundary, and corroborates the testimony of the witnesses. But for any thing that appears, this survey was an inofficial act, made without authority. The recital of it in the warrant of acceptance, as made by the consent and direction of the proprietaries, cannot legitimate it, as against Croyle and those claiming under him. The recital is ■ evidence against the late proprietaries, and those claiming under them by subsequent conveyances, but not against those holding under an earlier right. Gilb. Law Evid. 99, 100. 6 Mod. 44. 1 Salk. 286. Hardr. 120. 3 Lev. 108. 12 Vin. 233. Croyle applies in 1762, with his money, for a warrant for 300 acres, to include his improvement, according to the uniform usage of the office, but is refused, and he can only obtain a warrant for 100 acres to include his improvement at the mouth of Snake Spring. Pie could do no more; and it would seem on the whole, that the patent, unless there has been an abandonment of the improvement right, must give way to it.
    The abandonment must be judged of by the jury as a matter of fact, under all the circumstances. When Croyle applied for his warrant for 300 acres by his son, he did not mean to abandon. He was dissatisfied with what his son had done, and said he would apply to Mr. Penn for justice. He clings to his improvements, and will not surrender the possession of them. When he sells to Robert Elliot, he pledges himself to prove his prior right. If the present defendant, or any persons under whom he claims, had made valuable improvements since the former recovery by default, and before the present ejectment was commenced, it would avail him much, as proof of abandonment ; but no such evidence has been given.
    - If the jury shall decide for the plaintiff on both points, the only remaining thing to be considered is, what ought he to recover? He has got under the warrant to Croyle including his improvement, 123 acres and 123 perches, and there being another, legal right in the hands of the surveyor (though posterior to Croyle’s application) before the survey was made, he is now entitled only to 176 acres and 37 perches, the difference between what is already surveyed to him, and the strict quantity of 300 acres under his improvement, and not to any surplus quantity of 10 per cent.
    Referred to in 4 Yeates 217.
    Cited in 6 S. & R. 192 as an illustration of a case where a recovery was had on an improvement right, without survey.
    Cited on the question of the 10 per cent surplus in 7 S. & R. 33
    Cited in 3 Watts 468.
    Explained and followed in 2 Wh. 240. See also Bonnet v. Derelaugh, 3 Binn. 175.
    The jury came into court in a short time, and found a verdict for the plaintiff for 200 acres, and allowance of 6 per cent, for roads, &c., but were told, they must specify whatever they *did find, how the same should be laid off, and that pos- r* sibly their finding the surplus of 10 per cent, would en- *• “ danger their verdict.
    The jury next morning appeared at the bar, and delivered in their verdict for 176 acres and 37 perches for the plaintiff, finding where the same should be surveyed.
   The practice before the revolution was as follows : A person at that time, who had a warrant or order for 300 acres of land, was by the practice of the office, and instructions of the surveyor, entitled to 10 per cent., beyond the usual allowance of 6 per cent, for roads, besides the quantity mentioned in his warrant or order, and might demand of the deputy surveyor to survey on his warrant or order of 300 acres, 330 acres and allowance for roads, provided there was no opposing claim of a third person before the survey was made. But if there was any such opposing title before the survey was actually made, the surveyor was confined to the precise number of acres mentioned in the warrant or order.

From the information of Mr. Justice Smith. 
      
      These instructions were founded on an order of the Board of Property, dated 1st May 1767.
     