
    Blair against M‘Kee and another.
    Monday, September 25.
    pfras acres of land within the purchase afwlrratit?br 360 ^resedainciurie an ¡m-cannot be supambsequenf ¿ pU01’’ session. Such lvevJ?Ino°W~ void m tato and the assistant deputy no^raiwey and off what part he pleases, on another outüieaan-1' sent and the owner of lariy if it be íentiy and of his own in-
    the veyor in such \ spec’S turn to the Board of Property; but his omission to do so will not prevent the owner of the original survey from recovering in ejectment as much land as by law he is entitled to, which the jury may ascertain, and a diagram of which may accompany the verdict.
    Where an improvement is called for in a warrant, and there is an established settlement, the boundaries of which are fixed by adjoining surveys and consentible lines, a survey may be legally made of 400 acres, and 10 per cent, allowance, though the warrant be for a smaller quantity of land.
    It seems, that a survey which has been returned and accepted, will npt he hound down to 400 acres, and allowance, where there is no intervening right.
    IN ERROR.
    WRIT of error to the Common Pleas of Westmoreland county, in which Court, Hugh Blair, the plaintiff below, , V . brought an ejectment to recover a tract or land, the title to which he claimed under a warrant to James Blair, his brother, dated 11th January, 1790, for S60 acres, including an improvement on the south. side of Kiskaminetas, adjoining David MiKee, John McConnell, George Hutchinson, and James Chambers, in Washington ■ township; interest from lst March, 1715. On this warrant, a survey was made for the plaintiff, on the 30th of March, 1792, by John Parker, the assistant deputy surveyor, of 695 acres, including the land in dispute. It was provéd on the trial, that in the year 1774, James Blair had a good improvement within , J , . , , . , , ° , 1 , . this survey, on which he resided until he was driven oil by the Indians during the revolutionary war, at the close of which he returned and resumed his residence, which . , , . , _ contmued until a short time before his death in the year 1791. He always claimed down to the mouth of Beaver creek, near which there was said to be a mill seat, and the boundaries of his claim, or some of them, were ascertained by natural marks and by consentible lines between himself and his neighbours. After his death, the land was occupied by the tenants of the plaintiff, who it was admitted was his heir at law, a number of years, except for a short period during which one Ichabod Price got into possession. The plain tiff afterwards moved on it himself, and continued to reside there until the commencement of this suit. When Naricr was making the survey for the plaintiff, who was present and directed it himself, one of the neighbours spoke of so much rough land being taken in, on which Parker observed, that quantity was a good thing, and when Blair wanted to sell, an acre of that land would sell for as much as an acre of the best land he had, and then proceeded with the survey.
    The defendants’ title was founded upon a warrant in the name of Joseph Dobbin, dated 7th May, 1792, for 200 acres on the south side of Kiskaminetas river, above the mouth of Beaver run, adjoining land of James Blair on the south, and James Walker on the west, in Washington township. On the 15th November, 1796, a conveyance was executed from Joseph Dobbin to John Kirkpatrick, who, together with Parker, the assistant deputy surveyor, it appeared was originally interested in the warrant, and in April, 1814, a survey was made for Kirkpatrick, of 250 acres, the land now in dispute, by James Murray, the deputy surveyor, who swore, that when he made it, he had the diagram of Blair’s survey in his hand, and executed Dobbin’s warrant, as nearly according to the description as he could without injuring Blair, whose improvements lay convenient to the line of division. On the part of the land included in Kirkpatrick’s survey, Blair had no improvement, and it appeared, that part contained more rough land than the residue left to Blair, but the good land embraced by his survey was superior to any Blair had, and lay near and convenient to his improvements. On the 2d May, 1814, Kirkpatrick entered into articles for the sale of this land to William M'-Kee, one of the defendants.
    After the Court had delivered to the jury a charge unfavourable to the plaintiff’s title, his counsel submitted the following points on which he requested their opinion.
    1. That the survey of the plaintiff is a good and valid survey under the laws and usages of Pennsylvania.
    
    2. That said survey is not void, and if voidable, can only be avoided by an application to the surveyor general or Board of Property for a re-survey thereof.
    3. Until a new survey under proper authority was made on Blair’s warrant, it was not competent to the deputy surveyor to make a survey on the warrant in the name of Joseph Dobbin, within the bounds of the survey actually made on the ground for Blair, on his warrant, and without his knowledge and consent.
    
      ,4. That it was not competent to the defendants or those under whom they claim, to enter into or upon any part of the land within the plaintiff’s survey at their election and pleasure without his consent, and that, therefore, the plaintiff is entitled to recover in this action.
    5. That if the jury believe the assistant deputy surveyor was guilty of a legal fraud in making the survey for Hugh Blair to include so large a quantity of land, particularly as it included a considerable quantity of rough, hilly land, with a view of afterwards taking out a warrant for a part thereof of a better quality, said warrant will give no title to the assistant deputy surveyor, or any other person concerned with him or claiming under him, with notice of Blair’s survey or claim.
    6. That if said survey for Hugh Blair was not a valid survey in law, so as to give him a good title to all the land included therein,—he nevertheless would be entitled by virtue thereof, to hold the amount contained in his warrant, with the additional allowance of ten per cent., besides the usual allowance for roads, to be laid off at his election, before any legal appropriation could be made of the residue;—and the right of making this election was not vested in the deputy surveyor, or those for whom he made the survey on the warrant in the name of Joseph Dobbin, to survey the same where they pleased out of Blair’s survey, without his knowledge or consent.
    
      7. That if Blair’s survey be not valid, so as to give him a title to the whole land included therein, the jury may find for the plaintiff, so much of the land surveyed to the defendants,, as the plaintiff would have been legally entitled to have surveyed to him on said warrant, to be laid off in such form, and in such part of said land, as will be most beneficial and convenient to him;—and that the jury are not bound by the lines of the survey made on the warrant of Joseph Dobbin.
    
    To these propositions the following answers were given.
    1. The survey under which the plaintiff claims, not having been either returned or accepted in the land office, is not good and valid either by the laws or usages of this State.
    2. The survey being invalid, and the person claiming under it having taken no step to procure the acceptance of it, or a re-survey, his defect of title arises from his own laches or neglect, of which he cannot take advantage.
    3. It is our opinion, that it was competent to the deputy surveyor to make a survey on the warrant in the name of Joseph Dobbin, within the bounds of the survey made on Blair’s warrant, without the consent or knowledge of Blair. So great an excess of quantity, has not been sanctioned in any Court. It would open a wide door for fraud and other evil consequences. When a person procures a survey to be made embracing so great an excess as that of the one in question, neither himself nor any one under whom be claims, can procure such excess to be excluded within a reasonable period of time. The right of the Commonwealth or its citizens ought not to be prejudiced.
    
      é. It was competent to the defendants to enter; we do not say any part of the land embraced in the large survey of 69S acres, but after the survey on the latter warrant, which it appears was then all wood land, they could lawfully enter into that part of it—They entered under a prima facie good title, and this is sufficient until,a better one can be shewn.
    5. There seems no solid ground for imputing a legal fraud to Mr. Parker, the assistant surveyor. It appears the survey was conducted by the warrant holder himself, and although Mr. Parker was afterwards to have an interest in the warrant of Dobbin, it cannot with any propriety be alleged he was guilty of a legal fraud in making a survey for Blair, under his own direction. But were it possible to infer such a fraud, the plaintiff is not entitled to recover the land in question. It now appears, that one of the defendants agreed to purchase it; he paid a part of the price, and took possession without the least notice of the alleged fraud ,• so he ought to be viewed as an innocent purchaser. The warrant in the name of Dobbin, with the survey thereon, afford, we do not say a title to the defendants, but a sufficient defence against the claim of the plaintiff, under the evidence adduced in support of it.
    6. Whether the plaintiff be entitled to the quantity of acres mentioned in the warrant, with ten per cent, allowance, and six per cent, more for roads, is not now a fit subject for consideration. If he thinks proper to have a survey made in this way, I conceive he will have no right to lay it off as he may please.—This might have been done, but suffering so long a time to elapse, it may be presumed that he will not now be permitted to do this, to the injury of other citizens. Neither had the deputy surveyor, or those for whom he made the survey, a right to survey where they pleased within the bounds of the survey made for Blair, without his knowledge or consent. If the survey made on the junior warrant has interfered with the right of Blair, on a complaint to the surveyor general, either he, or the Board of Property, it may be presumed, will, on hearing the parties, afford redress.—.If they should not, the law is open to either party, and a jury, perhaps a special jury, on a view of the premises, can direct the lines of the survey to be run as they ought to be, or rather as they ought to have been.
    
      7. As we have already declared our opinion, that Blair’s survey is not valid so as to give him a title to the whole land included therein, and that he is not entitled to recover in the present action, any further instructions to you on this point appears superfluous. I have already intimated that the lines of the last survey are not conclusive upon the plaintiff. They would be by no means binding on you if the plaintiff had shewn a valid survey, or one that would entitle him to have the whole survey, or even the land in question.—When the plaintiff shall, if he think proper, bring forward such a survey, one that is sanctioned by the laws, he will be entitled to it. It is enquired, if you, the jury, may not find for the plaintiff so much land as he would be legally entitled to, to be laid off in such form, and in such part, as will be most beneficial and convenient to him.—Such a verdict would be useless, vague, and uncertain, and no judgment could be recovered on it.
    On the removal of the cause to this Court, it was contended by Alexander and Foster, for the plaintiff in error, that he was entitled to the whole quantity of 695 acres embraced by his survey. The proprietary order of May 1st, 1767, forbidding deputy surveyors to return a greater surplus than ten per cent., and the usual allowance for roads, beyond the quantity of land mentioned in a warrant or application, was not adhered to in practice, and a great number of valuable titles depend upon the validity of surveys comprehending a much greater excess. These titles are not only upheld by a general practice, but have in many instances, received the sanction of judicial decision. In the Lessee of Steinmetz v. 
      Toung,
      
       it was decided, that a survey of 288 acres might legaily be made on a warrant for 100 acres; and Judge Smith, whose personal acquaintance with the subject is well known, kore testimony in his charge to the jury, of the generality of the practice, and its recognition and adoption by the land office. In the Lessee of Reaves v. Edwards, the plaintiff recovered on a survey of upwards of 386 acres, made on a warrant for 400 acres. In Merchants Lessee' v. Millison,
       the defendant’s title rested on a survey of 900 acres, on two warrants of 300 acres each. It was proved by the testimony of several surveyors, that the practice since the revolution had been, to return even double the quantity of land mentioned in the warrant, and although the Court doubted whether the land office was bound to accept the return of so large a surplus, yet the defendant had a verdict. In Cluggage v. The Lessee of Duncan,
      
       it was no objection to a survey of 441 § acres, that it was made on application for 300 acres. ' In the Lessee of Pickering v. Rutty,
      
       more than 1105 acres were surveyed on a warrant for 1000 acres. In the Lessee of Cherry v. Robinson,.
      
       on an application for 300 acres, 337 7-8 were surveyed. In the Lessee of Sherer v. Mi,Farlcpid,
      
       no objection was made to a survey of 318 acres, on a warrant for 200 acres. Nor in the Lessee of Dougherty v. Piper,
      
       was any objection made to a survey of 334 acras, because it was made on a warrant for hut 200 acres. In the Lessee of Correy v. Caxton, the warrant called for 200 acres, and the survey contained upwards of 228 acres. In the Lessee of M ‘Clay v. Work, though the warrant was for 275 acres only, the survey embraced 412 acres; and in Werdman v. Felmley,
      79 9-10 acres were surveyed, on a warrant for 50 acres. In the case of Caufman v. The Presbyterian Congregation, &c.,
      
       which bears a close resemblance to this, the location was for 200 acres, on which a survey was made for 332 acres and 81 perches. The plaintiffs recovered, though the deputy surveyor objected to returning so large a surplus, and surveyed and returned a part of the original survey, consisting of the best land, on a location taken out by his own advice, by the person under whom the defendant claimed.
    The order of the proprietaries may therefore be considered as abrogated, by the almost universal practice of disregarding it, and by the decisions of our own Courts. Nor does the act of 8th April, 1785, form any obstacle to the plaintiff’s recovery. That act, which confines the excess to be surveyed beyond the number of acres mentioned in the ■warrant, to ten per cent., was made with reference to a particular district of country then recently purchased of the Indians, and its provisions have been decided not to extend to any other part of the state. It was so determined, in relation to the question of surplus land, in the Lessee of Steinmetz v. Young, already cited, in which M'-Ginnis's Lessee v. Albright, is referred to by the Chief Justice, as establishing the point; and in relation to another question, in Wright's Lessee v. Wells,
      
       and in the Lessee of Harris v. Monks.
      
       That act therefore, does not reach this case, for the land in dispute lies in the old purchase.
    If, however, the survey was not good for the whole, it was not void, and no one had a right to enter until it had been rejected by the land office. Blair was entitled to at least 400 acres, and the usual allowance, and could not be deprived of the most valuable part of his land at the pleasure of the deputy surveyor, whose duty it was to have returned the survey. His not having done so was his own fault, and the plaintiff is not to be prejudiced by his neglect or misconduct. Lessee of Drinker v. Holliday.
      
       The jury might have given him as much as they thought him entitled to.
    The conduct of the deputy surveyor was fraudulent, and the defendants cannot prevail by virtue of a title derived through fraud. It was owing to his suggestion that Blair included so large a body of land in his survey, and he after-wards surveyed and cut off,, on a warrant in which he was himself interested, a large portion, including some of the best land on the tract, and lying most convenient to Blair’s improvements; the part too which most accurately answered the description in the warrant, and of which Blair had been in constant possession. From these- facts the jury might, with great propriety have inferred fraud, and whether the defendants had notice of it or not, was of no consequence, for Kirkpatrick, the real defendant, had paid only a small portion of the purchase money. If however, notice was material, it ought to have been left to the jury to determine, whether or not it had been given.
    There is another ground on which the plaintiff was entitled to recover. He had a warrant, an extensive improvement, and a long possession, and these were sufficient to entitle him to a verdict.
    Forward, for the defendant in error.
    
      Blair’s survey was made under his own direction; it contained more good land than that made on Dobbin's warrant, which took no land between Blair and the river, and he has his full quantity in a convenient shape. As to the mill seat, if there was one, it could not belong to Blair, because the creek was the boundary between him and Chambers, and belonged equally to both. It is impossible he should have the whole of his large survey of 695 acres; he must be restrained to one end of it or the other, and his intention to go to the full extent of the end he holds, appears from his warrant, and from his consentible lines in that part of the survey. He had no right, by virtue of his improvement, to go to the mouth of Beaver creek, which would not only make the survey too large in quantity, but of an irregular and inconvenient shape.
    I deny that the land office are bound to accept a survey of 695 acres, on a warrant for 360 acres, or that they ought to accept it. All the cases which have been cited on the opposite side may be referred to one of the following classes, to none of which the present case belongs. 1st. They were surveys before the proprietary order of 1st May, 1767. 2d. Surveys which had been returned and accepted, and no third person was concerned. 3d. Surveys, in which the quantity of surplus was trifling. 4th. Cases in which there was manifest fraud in the deputy surveyor, or the persons connected with him, and in which the fraud was corrected in a reasonable time. In Merchant’s Lessee v. Millison, there was clear fraud. Possession was taken immediately, and application was made to the land office to correct the fraud. In Gaufman v. The Presbyterian Congregation, 8?c., there was fraud also. The congregation took possession and built a parsonage house on the disputed part. They were not informed of the manner in which the surveys were returned, and the part cut off from the original survey, answered best the description of the plaintiff’s location, and contained much the best land. Besides, the warrant was prior to the 1st of May, 1767. Here, Blair had only constructive possession of the land included in Dobbin’s survey* It was woodland, on which there were no improvements. His survey, moreover, was made by the assistant, and was never recognised by the deputy surveyor himself. In adverting to the practice in relation to this subject which prevailed before the year 17G7, the Chief Justice, in the case of Kyle’s Lessee v. White, declares, that at this day, such an objection to a survey would be decisive ; and Judge Brack* enridge, in the same case, expresses his opinion strongly against such surveys. The proprietaries, being owners of the soil, had a right to do as they pleased with it; but the rules which they thought proper either to enforce or to relax, can have no influence on the Board of Property under the Commonwealth, who have ho right to accept a survey contrary to the spirit of acts of assembly.- The act of Aprils 1785, it is true, has been held not to apply to lands within the Indian purchase of 1768, but it tends strongly to mark the sense of the Legislature and of the country with respect to surplus land. And although in the acts of 2d April, 1811, and of 13th March, 1817, there has been a partial departure from this policy, yet the interests of those who had previously acquired rights by warrant or improvement were protected. In this case, Blair’s large survey has never been returned and accepted, and therefore cannot interfere with the defendants’ title.
    With respect to the allegation of fraud, if any existed in the Conduct of the assistant deputy surveyor, it cannot affect MlKee, the defendant, who purchased without notice of it, has made improvements, and has paid part of the consideration money.
    
      
      
         2 Binn. 520.
    
    
      
       2 Yeates, 463.
    
    
      
       3 Yeates, 73.
      
    
    
      
       1 Serg. & Rawle, 111,
    
    
      
      
         1 Serg. & Rawle, 511.
    
    
      
      
         1 Yeates, 521.
    
    
      
      
         2 Yeates, 224.
    
    
      
       3 Yeates, 290.
    
    
      
       4 Binn. 140.
    
    
      
       5 Binn. 154.
    
    
      
      
         6 Binn. 39.
    
    
      
       6 Binn. 59.
      
    
    
      
      
         2 Sm. L. 323.
    
    
      
       2 Sm. L. 201.
    
    
      
       2 Serg. & Rawle, 560.
    
    
      
      
         2 Yeotes, 89.
    
    
      
      
         Purd. Dig. 400.
    
    
      
      
        Purd Dig. 406.
    
   The opinion of the Court was delivered by

Duncan J.

The right of the plaintiff to a survey of 695 acres, on his warrant, (including his improvement made in 1775,) of 360 acres, which survey remains unreturned against the defendants’ subsequent warrant, survey, and possession, can never be supported. The commissioners of property under the proprietaries of the province, although bound by certain established usages and instructions, where there-were conflicting rights, might depart from them in the acceptance of a survey containing a surplus, where there w as no intervening claim. It was only a matter between such warrantee and the proprietaries, who might confirm such survey. But when the land officevunder the State government became regulated by law, the officers were bound by the law, and had no discretionary powers. By the act of 1st of Aprily 1784, 2 Sm. L. 102, which relates to the granting and disposing of all unappropriated land within the State purchased from the Indians, it is enacted, that the quantity of land granted'to any one person, shall not exceed 400 acres: and by the act of 30th December, 1786, 2 Sm. L. 395, which restricts all the lands within all the purchases made under the proprietary government, and secures the pre-emption right to settlers, the right is confined to 400 acres.

Whatever opinions may have been entertained or decisions made under the special circumstances of particular cases, where surveys have been returned and accepted, and which I desire to leave just as I found them, it does seem to me, that a right to a survey exceeding 400 acres, and ten per cent., surplus, cannot be maintained ; yet I do not say, that a survey which has been returned and accepted, where there has been no intervening right, Could be bound down to that exact limit; and where there is an improvement called for in a warrant, and an established settlement, with boundaries fixed by adjoining surveys, or consentible lines, although the warrant might be for a less quantity than 400 acres, my opinion is, that a survey might be legally made of 400 acres and 10 per cent, surplus, the act of taking out the warrant not being considered as a relinquishment of all the land within his claim. Davis v. Keefer. 4 Binn. 161.

The present plaintiff on his warrant of 360 acres, would have a clear right to a survey of 440 acres, and if such had been his survey, its validity could never have been questioned. There was evidence given, that this surplus quantity was by the advice of the surveyor, who two days afterwards took out a warrant, and 22 years after, had a survey made of 250 acres. The warrant was in the name of Joseph Dob bin, but was taken out by the surveyor and Kirkpatrick. Kirkpatrick, in the same year, articles to sell to William M'-Kee, but no conveyance has been executed, and a considerable part of the purchase money remains unpaid.

I do not consider it necessary to inquire minutely into all the questions on which the Court’s opinion was desired, the same question being presented in different forms, but as the charge is deemed erroneous in many substantial points, I will content myself with stating those which will embrace all the really controverted ground. The Court instructed the jury, that the survey of the plaintiff was void in tolo, and that the defendants could legally make a survey on the warrant of Dobbin, without the consent or knowledge of Blair. This cannot be right.—That a surveyor should include double the quantity in the warrant of a settler, directly after take out a warrant for the surplus, and at the expiration of twenty-two years, enter, and cut out such surplus where he pleases, without regard to the description of the warrant, relation to the situation of the settler’s improvfements, or to the quality of the land, is a proposition that never can be supported ; nor could this be done by leaving to the settler his cleared land, but running elsewhere at the pleasure of the party. It became, in that case, the duty of the surveyor to return the matter specially to the Board of Property, who would have taken order on it, brought the parties before them to a hearing on notice, and made such decree as justice and equity required, by a special direction to the surveyor in what manner the respective warrants were to be surveyed. If either party was dissatisfied with this decision and survey, the Courts of justice were open. But they were not shut against the plaintiff, until he had brought his case before the Board, and had their previous decision; for if his survey was void, as the Court seem to think it was, there would be no greater difficulty in a jury ascertaining his right on his settlement and warrant, than arises-in the case of every settler who brings his ejectment without survey ; and a survey including what ought not to have been included, can it place him in a worse situation as to that which ought to have so done, than if he had no survey ? It would be void as to the surplus, but valid as to that which the surveyor might legally survey. This case has a very striking resemblance to that of Caufman v. The Congregation of Cedar Spring. 6 Binn. 59. There, as here, the congregation had no re-survey, or decisión of the Board of Property : there, as here, they complained of the conduct of the surveyor, gutting the survey at kis own pleasure: there, as here, they shewed the boundaries of their claim.' The Court there, say, that never having acquiesced, they hád a right to contend the surveyor had done the wrong. In that case, the surveyor had no interest, but here he had, and it was such conduct as that a jury might have inferred fraud. If he, as was contended, encouraged Blair to swell the quantity, by taking in rough and hilly lands, and then having included them, did take out a warrant immedidtely after, and leaving him this rough land, take from him the woodland which his settlement and warrant entitled him to, cutting him off from the river, and from a mill seat, the leading call next to his improvement, the river, and his other described boundaries, the monuments ascertaining his claim, this would be a fraud; not a constructive, but an actual one ; a fraud, which the whole conduct of the party loudly proclaimed, and which no man could mistake ; and if a fraud in the owner, who was the surveyor that led the settler into this mistake, that fraud was not purged by the agreement to convey.—Even, had an absolute deed been given, and the whole purchase money paid, it would not have this effect, for, in this conflict between parties claiming under original title, the only question is, who is entitled to the survey, the survey being made, returned, and accepted of; and a conveyance to an innocent purchaser without notice, is not protected; for the question is not, who has obtained the survey, return, and patent, even where there is a purchaser for a valuable consideration without notice, but who ought to have it, unless ¡there hse been some culpable omission, or acquiescence inducing the purchase. Were this not the law, the consequences of the doctrine of a party being a, purchaser without notice, would have most alarming consequences. The patent does not estop. We can lift up the curtain and look beyond even a patent, in any case of fraud committed by a party or a stranger, and much more so, where the surveyor is himself a party. There was error in the Court stating to the jury, that if it were possible fraud could be inferred, still the defendant, an innocent purchaser, without notice of the alleged fraud, was protected; there could bo no recovery against him. The difficulty which led the Court into error, arises from -the very nature of our original land titles existing in many cases ; but it is not insuperable ; it forms no bar to a recovery. Two surveys interfering partially, where the dispute arises from description, or where the complaint is, that the surveyor has allowed a greater extent on a Water, than his instructions would justify, in all thes.e cases a jury may decide without any previous order or decision of the Board of Property, whose decisions do not bind the rights of the party, nor are they ever necessary to give this Court jurisdiction. The objection is the want of- certainty. Id certurn e-sf, quod cerium reddi potest. A jury must finally decide the question, although there were ten thousand decisions of the Board of Property. The jury have before them the evidence of the settlement and warrant of Blair, the evidence of the surrounding lands, the place of the improvement, the quality of the soil, the survey made for Blair, the survey made on Dobbin’s warrant, and however much desirable a view might be, whatever greater certainty might be attained by a jury on the ground, still the difficulty is not so insuperable as to prevent a Court and jury from ascertaining and fixing the land to which Blair is entitled, by his settlement and warrant; the- land which ought to have been surveyed for him, and marking it on a diagram returned with their verdict. The difficulty arises more from the misconduct and negligence of Parker than Blair. The surveyor, in 1814, had no right to garble the land at his will and pleasure, and he should have returned the matter specially to the Board of Property. Merchant and Bright v. Millison, & Sm. L. 165. But not having done so, the plaintiff is not deprived of his right to a trial by a jury in the first instance, and is not obliged to petition the Board of Property for his right, nor to await their decision, because he is not bound by it. However convenient it may be to have recourse in some instances to this tribunal, (which is not a judicial one in any sense,) it is not obligatory in this.

Judgment reversed, and a venire facias . de novo awarded.  