
    Porter and another against M'Ilroy and another, administrators of Little.
    
      Monday, October 5.
    In Error.
    Taking a aniTCvinga but'not're-6’ turned, of a tban^a settler «entitled to, is evidence of an abandon the part not ¡n-eluded; it is a circumstance which may be explained. Whether or not there has been an abandonment, is a fact which the jury, from a view of the whole case, are to determine.
    If a point be placed fairly before the jury, and the Court give an opinion on the facts in favour of One party, but give it merely as opinion, and not as a direction binding on the jury, it is not error.
    THIS was an ejectment brought in the Court of Common Pleas of Huntingdon county, by fames M'-Ilroy and Joseph Jackson, administrators of fohn Little, deceased, against William and James Porter, the facts of which, so far as they are material, appeared to be these:—John Little, in year 1774 or 1775, settled on Laurel run, where he built a mill, which was burnt down and rebuilt in another place, planted an orchard, cleared a considerable quantity of land, and did all those acts which were necessary to make him a 
      ■bona fide settler. In the year 1786, he cleared a field of about ten acres on the land in dispute, which he occupied until his death, and built a cabin for a schoolmaster. On the 14th March, 1786, he took out a warrant for 200 acres, including his improvement on the Bise Laurel Run, calling for the adjoining lands. On this warrant no act was done until the year 1795, when Joseph Eaton, then in the employ of John Canon, deputy surveyor, made a survey of 439 acres and 14 perches, including the land in controversy. After the survey had been made, Little told Eaton not to return the draft, or write his name in it, until he procured a settler on the lower end, the part in dispute, and then he would have to return two drafts. On the 5th June, 1795, the surveying fees were paid by Little to Eaton, who afterwards paid them over to Canon, but there was no evidence when the draft was returned. In the year 1786, one M^Alevy, to whose line Little claimed, had a survey made of his land, of which Little complained, and some time afterwards when Samuel Henry was surveying an adjoining tract, Little told him he was coming to his line, and Henry at his request stopt. On the 2d May, 1812, John Morrison was called on by the plaintiffs to make a re-survey on the notes of Eaton, and he re-located Little’s warrant on the lower part of the tract. The administrators wished the survey returned there, having sold the upper part of the tract on which Little’s house and mill stood to William, M‘Alevy, who, on the 28th December, 1812, took out, at his own expense, a warrant for 220 acres, including an improvement; interest from the 1st March, 1774, on which a survey of 220 acres was made on the 19th February, 1813. When Morrison made his survey, the Porters had taken possession of the land in dispute, and had commenced improvements. In January or February, 1812, they had a cabin, and in the following October built a a house on it. Little’s warrant was returned on the 17th August, 1812, on the lower part of the tract, which Morrison thought agreed with the description in the warrant, as well as the upper end. It appeared, that Little had frequently been assessor and assistant assessor, and had returned only 200 acres for taxation, from the year 1794, until his death.
    By his will, which was proved in January, 1812, John Little gave to William M'Alevy, his executor, power to sell the land; and M'-Alevy renouncing the executorship, letters of administration, with the will annexed, were granted to the plaintiffs.
    The Court were requested by the counsel for the defendants t0 charse ^ jaryt0 i^e following effect,
    1. That if they believed from the testimony, that it was intention of John Little to place an improver on the lower end of the survey made by Eaton, and in that manner procure a warrant and survey of that part of the land, without paying interest from his first settlement, it was presumptive evidence, that he did not intend to include that part of'the survey, or to hold it under the warrant given in evidence or under his improvement.
    2. That a settler may claim less than 400 acres, and is not bound to take that quantity, and that the circumstance of John Little taking a warrant for 200 acres only, and of his returning 200 acres only for taxation, both before and after the survey made by Eaton, together with the other facts given in evidence in the case, if believed by the jury, afforded a presumption, that John Little did not intend to hold the land in dispute under his improvement, or under the warrant given in evidence.
    3. That if the jury believed that John Little did not intend to pay the Commonwealth for the land in dispute at the rate which was charged for land in 1 ?74, with interest from the date of his settlement, but on the contrary, intended to keep the land covered by the survey given in evidence, until he should find it convenient to place a settler on it, and procure a warrant on lower terms, the plaintiffs were not entitled to recover.
    On these points, Walker, President, instructed the jury thus:
    1. That the facts were before the jury. The circumstance of Little’s uniformly claiming the land, and the lines on the ground, were of more weight, than his declarations. If the jury were of opinion upon the whole evidence, that it was his intention to abandon the part in question, then it was common property, and any other person was at liberty to take it up. He might however, change his intention, and if he did so, before any third person had acquired an interest, he had a right to do it.
    
      2. That a settler might take less than the law gave him, and his taking a warrant for 200 acres, was evidence, that he intended to be bound by that quantity, but it was not con-elusive evidence, and might be rebutted by facts, tending to prove the contrary. The jury would weigh it with the other facts, and say, whether on the whole it was proof of his intention to abandon the extent to which he was authorised . ’ to go.
    3. That the circumstance of his returning 200 acres for taxation, before, and after the survey, though evidence, together with other facts, from which to form a presumption of the extent of his claim, afforded the weakest of all presumptions, because men were unwilling to be taxed, and many men, reputed to be honest, returned less than their claim; and the fact of a marked boundary, completely destroyed, or went a great way to destroy the presumption which arose from his returning less than his real claim. If it appeared to the jury, that it was the intention of Little to defraud the Commonwealth by putting a settler on the land, and not paying interest from 1774, and before he changed that intention, if he ever did change it, a third party came in and acquired title, the plaintiff would not be entitled to recover. But if they believed he intended honestly and fairly to pay the Commonwealth for the land, the plaintiffs were intitled to recover.
    To this opinion, the counsel for the defendants tendered a bill of exceptions, which was sealed by the Court.
    Thompson, for the plaintiffs in error.
    If the plaintiffs below, had rested on the improvement of Little alone, and he had done no act to lessen his improvement right, we admit they might recover 440 acres; but from all the circumstances of the case, the legal presumption is, either that he intended to abandon the land in controversy, or to commit a fraud upon the Commonwealth. In 1786, he took out a warrant for 200 acres, and although a survey was subsequently made of 440 acres, he would not permit the surveyor to return it, but fraudulently kept it back, with a view to cover the whole 440 acres, until he could procure a settler on the lower part of the tract, and thus defraud the Commonwealth of interest on 240 acres,
    
      from the year 1774, the commencement of his improvement, and of the price for which land sold at that period. The conduct of Little was contrary to the spirit of the act of 8th April, 1785, sect. 9, which declares, that unless a survey is made after the warrant comes into the hands of the deputy surveyor, it shall be void. The survey of 1795, was never returned to the surveyor general; it cannot therefore be considered as a survey on the warrant of 1786, and before the survey of 1812, the defendants had begun their improvements. It is clear that Little did not think he could hold the land in dispute, either by improvement, or by his 200 acre warrant. The clearing of the ten acre field, was no foundation for a warrant, because he never resided there, and though an assessor himself, he returned no more than 200 acres for taxation, from the year 1794, which was before the survey, until his death. One who makes a survey on an improvement right, cannot hold adjoining land, not included in the survey under the improvement. Holmes v. Kay.
      
       Now though it is not contended that the circumstance of taking out a warrant for 200 acres, is, of itself, an abandonment of the rest, yet that, taken in connection with the other facts given in evidence, affords a legal presumption of an intent, either to abandon, or to defraud the Commonwealth, in either of which cases, the plaintiffs are not entitled to recover: of law. and fraud, the Court are to infer as matter
    Tod, for the defendants in error.
    
      John Little’s warrant for 200 acres, was laid on the land in dispute, and it was proved by the testimony of Morrison, that it answered the call of the warrant. It called too, for an improvement, which is satisfied by the ten acre field and the schoolhouse. In general, it is true that an improver is concluded by a warrant and survey; but it has never been held, that he is bound by a warrant without a survey, nor is the law so; and even a survey may be explained so as not to be conclusive. Lessee of Davis v. Keefer.
      
       Little always claimed this land, but was mistaken in supposing that he could not hold 440 acres under his improvement; his boundaries, including the whole 440 acres, were marked upon the ground, and were perfectly known to the neighbourhood, and the Commonwealth received interest on the whole quantity from the year 1774; the allegation of fraud, is therefore without foundation. íf 440 acres had been returned on the warrant for 200 acres, it cannot be disputed that it would have been good, and there’ is no reáson why the same qu.antity may not be recovered by two distinct warrants, founded , . on the same improvement. The circumstance .or Ins having returned only 200 acres for ■ taxation, cannot possibly affect the title to the land. Whether under all the circumstances of the case, it was to be inferred, that he' intended tó abandon the land in dispute, or had committed a fraud upon the Commonwealth, wer.e questions of fact, very properly submitted to the jury. ■
    
      
      
         2 Sm. L. 321.
    
    
      
      
         2 Sm. h. 180.
    
    
      
      c) 4 Minn. 164.
    
   The opinion of the Court was delivered by

Gibson J.

Little had an improvement that entitled him to 440 acres, and it is conceded, that if he had rested on it, and done no act to lessen the extent of his claim, he would have been entitled to the land in dispute.. In 1786, he took out a warrant for 200 acres to include his improvement, calling for the owners of the adjoining lands. In 1795, a survey of 439 acres and 14 perches was made by Eaton, a deputy of Canon, including the land in dispute. After this survey was made, Little told Eaton, not to return the draught, or write his name on it, till he procured a settler on the end in dispute, and then he would.have to return, two draughts. It is not known when this draught was returned to Canon, but he received his fees in 1805. The taking a warrant for, and having a survey made, óf a less quantity than' a settler is entitled to, but not' returned, is not conclusive evidence of an intention to abandon the part not included; it is a'circumstance to be left to the jury, and may be explained and rebutted. Whether the return of such survey would make any difference, is a question which at present we do not decide. Here Little, at a time when there was no interfering claim, had his pretensions designated by a survey; he had previously, it is true, taken a warrant for 200 acres, but this without a survey, excluding the surplus to which he otherwise would be entitled, was no waver of his right. It is immaterial to the State, whether a settler obtains his quantity by more than one warrant, or not, provided he on the no more than he is entitled to, and honestly pays for what he gets. If therefore, he gives notice to the world, by a survey of his pretensions, that the land is not vacant, nobody can complain. I cannot consider the draught made in 1795, as a survey on the warrant of 1786, for the surveyor was desi- , , . . red at the time, not to return it, or write Little’s name on it, as intended to take out another warrant, when it would be necessary to return two surveys. It was in fact, a survey to circumscribe his claim as á settler, and we afterwards, in 1812, find this warrant surveyed on the land in dispute, as soon .as’ the 'defendants had commenced their improvement. Whether there had been an abandonment or not, was a fact under all the circumstances of the case, fairly left to the jury; and in this part of the charge, it is clear there is no error.

But it is contended, that there is error on another ground. It is said, that.Little intended to hold but 200 acres under his improvement and warrant of 1785, and that by his request to the surveyor not to return the draught until he could put another settler on the land in dispute; and- obtain a warrant for it, he evinced an intention to defraud the State of interest on the purchase money, from his original improvement in 1774, to the commencement of his intended improvement, and that he meant to cover the land in the mean time, by his improvement right and survey,' including the whole. Whatever his intention may have been, it is admitted the State has in fact been paid as much as she had a right to demand, and that if a fraud were intended, it was not. effected. Whether a fraud intended; though not executed, would affect the title of the party, or whether he would have a locus penitentice, and might retract before its consummation, is a question about which I have no doubt. A bare intention, which injures no one, can have no effect. The fact of fraud, was put .to the jury as favourably for the plaintiff in error, as he could desire, or the law would warrant. The jury were instructed, that if they thought Little intended to defraud the Commonwealth, by putting a settler on, and not paying interest from the date of his original improvement, and before he changed that intention, a third party come in and acquired title, the plaintiff would not be entitled to recover. It is unnecessary to say, whether in this, the Judge erred in favour of the defendants ; it is sufficient, that he went full far enough. On-the facts, he delivered a pointed opinion jn favour of the plaintiffs ; but as it was given merely as opinion, and not as a direction binding on the judgment of the jury, it would not, even if wrong, be, on that ground, the subject of error. The'judgment must be affirmed.

Judgment affirmed.  