
    Shepherd and another against the Commonwealth.
    THE court sat at Harrisburg to determine this case, in pursuance of an act of assembly, passed on the 28th March, 1814.
    
      Shepherd and Dorr anee claimed 12,328 acres and 15 perches of land in Claverack, one of the seventeen townships of Luzerne county, by virtue of two certificates from the commissioners of the commonwealth, one issued in favour of Shepherd for an undivided moiety of the whole, dated January 2d, 1807, and signed by Thomas Cooper and John M. Taylor: the other in favour of Dorrance for the remaining moiety, dated January 1st, 1808, and signed by John M. Taylor and Alexander Scott. Annexed to the certificates was a draught of the survey made by George Haines, surveyor of the commissioners. These certificates were issued in pursuance of the act entitled “ an act for offering compensation “ to the Pennsylvania claimants of) certain lands within the “ seventeen townships in the county of Luzerne, &c.,” passed April 4th, 1799, or one of the supplements thereto. By the 5th section of this act the commissioners are directed, . . “ to ascertain all the rights,or lots within the said seventeen “townships, which were occupied or acquired by Connecti- “ cut claimants who -were actually settlers there at or before “ the time of the decree at Trenton, and -which rights or lots “ -were particularly assigned to the said settlers prior to the “ said decree, agreeably to the regulations then in force among “ them, and to divide the rights or lots into four classes, to “ be distinguished in the manner herein before-mentioned, “ according to their respective value, taking into considera- “ tion both the quality and situation, and to make out a cer- “ tificate thereof with a draft of the survey thereto annexed, “ and in case the said original settlers, their heirs or assigns, “ shall make application to the land office at any time before “ the 1st day of January, 1801, and agree to pay to the com- “ monwealth by eight equal annual instalments at the rate of “ two dollars per acre, for lands of the first class; at the rate “ of one dollar twenty cents per acre, for lands of the second “ class ; at the rate of fifty cents per acre, for lands of the “ third class ; and at the rate of eight and one-third cents per “ acre, for lands of the fourth class, with interest upon each “ instalment till the same be paid; thereupon patents for “ lands so certified shall be issued from the proper office, “ paying the legal fees for such patents, and also the survey- “ ing fees.” The time for making applications to the commissioners was enlarged by a supplement to this act. John Shepherd’s application was entered November 12th, 1800, and Benjamin Dorr anee’s June 9th, 1807. The commissioners certified in the words of the act, that “the land was occu- “ pied and acquired by a Connecticut claimant, an actual set- “ tier there, before the decree of Trenton, and was particu- “ larly assigned to such actual settler prior to the said decree, “ agreeably to the resolutions then in force among such set- “ tiers.” Shepherd and Dorrance having as they alleged complied on their part with everything required bylaw, demanded a patent, agreeably to the certificate and survey returned by the commissioners.
    
      Where a commissioner under the act of 4th April, .1799, was appointed President of the Court of Common Pleas, his subsequent acts as commissionerwere held good.
    Having held : a Connecticut title and sold . it with special warranty does . not create such an interest as disqualifies a person from acting as commissioner».
    It is not necessary that surveys and certificates under the act of 4th April, 1799, should he for any particular quantity of land if the same patenting fees are paid as if the land was divided into tracts of the usual size. Islands may be included in such surveys and certificates.
    The certificate of the commissioners is conclusive upon the commonwealth as to the assignment of the property and settlement, previous to the decree of Trenton. Üntfer the act of 28th March, 1814, the Court may order a new survey. •
    
      On the- 15th March, 1809, a patent was accordingly prepared and signed by Andrew Ellicott, secretary of the land office, but the seal of the commonwealth was not affixed. On the 4th April, 1809, a resolution of the legislature required the governor to direct the Attorney General to appear in behalf of the state, in case an application should be made to the Supreme Court for a mandamus to the secretary of the commonwealth, in the case of the application for a patent for the mammoth farm in Claverach.
    
    
      . On the 25th May, 1810, a rule was granted by the Supreme Court at Lancaster on N. B. Boileau secretary of the commonwealth, to shew cause why a mandamus should not issue, commanding him to affix the seal to a patent for the mammoth farm in Claverach, one of the seventeen townships in the county of Luzerne.
    
    On the 28th May, 1810, Mr. Boileau made a return to the rule, assigning his reasons against issuing the mandamus. On the 2d April, 1811, another resolution of the legislature directed the Judges of the Supreme Court to form an issue, to try the legality of the certificates granted to Shepherd and Dorrance, and the whole merits at Philadelphia, with power to decree as to right and justice might appertain. By an act of assembly passed on the 24th March, 1812, the above-mentioned issue was directed to be tried at Lancaster.
    
    These measures having failed to bring the case to a decision, on the 28th March, 1814, an act of assembly was passed directing the Judges of the Supreme Court, or any two of them, to meet at Harrisburg, and “ hear and determine. all “ matters and things touching the legality of certain certifi- “ cates granted to' John Shepherd and Benjamin Dorrance, “ and their right to twelve thousand three hundred and twenty-eight acres of land, or any part thereof, in Claverach, one “ of the seventeen townships in the county of Luzerne,” and to “ decree and determine in said case as law and justice may “ require, which decree shall be final.”
    The case was argued on the 21st, 22d, and 23d June, by Morgan and C. Smith for Shepherd and Dorrance, and Ell-maker and Duncan for the Commonwealth.
    For the Commonwealth, it was objected that the patent ought not to issue,
    1. - Because the certificates given to Shepherd and Dorrance were illegal. The law requires the certificate to be signed by the commissioners, or a majorityof them. The. certificate of Shepherd is signed by Thomas Cooper as one of the commissioners. Thomas Cooper was appointed commissioner on the 22d April, 1801. On. the 1st August, 1804, he was appointed president of the fourth judicial district, and on the March, 1806, he.was appointed president of the eighth judicial district, and continued such till after signing the certificate. The two offices were incompatible, and by accepting that of judge he virtually resigned the office of commissioner. By the Constitution of Pennsylvania, art. 5. sect. 2., it is provided that the Judges of the Supreme Court and. Presidents of the several. Courts of Common Pleas, “ shall “ not hold any other office of profit under this commonwealth.” This was an office of profit. The commissioners were entitled to three dollars and fifty cents for every day they acted. It is admitted that Mr. Cooper received no pay-after the- 1st August, 1804; but this can make no difference in the principle. They cited 4 Inst. 100, 310. 5 Bac. ab. (Wilson’s Ed.) 205, (K.) 3 Burr. 1615. 6 Bac. ab. 380. Hillhouse v. Chester 
      
       4 Ball. 229. The certificate to Borrance is signed by Alexander Scott, who was appointed, commissioner on the 1st June, 1807, in the room of Thomas. Cooper. Scott was interested, and therefore could not lawfully act as a commissioner, in respect to this land. It is through Scott that Shepherd and Borrance derive their title. It appears from the statement of the commissioners that, Peter Ilogeboom was the owner of the whole township of Claverack, under the state of Connecticut, He, by deed dated August 8th, 1794, in consideration of 2000 dollars, conveyed the whole township of Claverack to Alexander Scott, Ebenezer Bowman, Rosewell Welles, and Elihu Chaúncey Goodrich as tenants in common, with a clause of warranty' against the grantor , and his heirs, and all persons claiming - under the state of .Connecticut,-or the Susquehanna Company. By deed dated March 22d, 1796, Alexander Scott, in consideration of 2000 dollars, conveyed to' William Hull his undivided fourth part of the township of Claverack, excepting 1300 acres which Scott held Under the state of Pennsylvania, with-warranty against the grantor and his wife and their heirs',- and all persons claiming under them. Thése conveyances' amount to' a warranty or 'covenant that the Connecticut title under Hogeboom was good. Besides when Scott signed this" certificate he obtained a right to release his 1300 acres to the state -and Claim' compensation from them.
    
      2. The commissioners should have given separate ceríificates of the several tracts in Claverack township. By the 5th section of the act of 4th April, 1799, it is the duty of the commissioners “ to ascertain all’the rights or lots” within the seventeen townships. The word right means a tract not than 300 acres,-nor more than 600 acres: and has been generally so understood ever since the formation of the Susquehanna Company in 1754. Share and right were considered synonimous. In the rules and regulations of the Susquehanna Company, (19th May and 27th July, 1762) rights are mentioned as containing 640 acres, p. 25, 26. A right in broken or mountainous land attached to a toxvnship, 600 acres, p. 49. By a vote April 17th, 1763, eight townships were laid off into rights or shares of 400 acres eách, p. 30. Franklin, clerk of the Susquehanna Company, certifies August 6th, 1803, that a. right in Claverack, was 600 acres, p. 110. A half right is mentioned by the commissioners in one instance to be 320 acres in- Claverack.- The confirming act of March 28th, 1787, mentions rights or lots of about 300 acres each. All the acts on the same, subject use words of similar import. Act of Assembly, 6th April, 1802, 9th April, 1807. It never could have been intended that so large a tract of country should be. included in one certificate and survey, and obtained by . paying the fees of a single patent. The dividing it into small , tracts of 3 or 400 acres was the only practicable mode of classing and valuing the land.
    3. Five islands, containing 130 acres and 80 perches, are included in the patent; but to these islands Shepherd and Dorrance have no right. There is no survey of the islands, nor .are they included in the books of the Susquehanna Company. Claverack township was bounded by the river, and. included no islands.
    . 4. The lands included in.the survey were not settled prior to.-the decree of Trenton (December, 1782,) which is absolutely necessary under the act of 4th April, 1799, to enable the commissioners to certify. The township of Claverack■■ was not .finally established, nor settled till after the decree of. Trenton. .At that time no such township existed, according to the-rules and regulations of the Susquehanna Company-There was no. settlement of twenty men before 1785. We have a certificate given December 6th, 1785, by ZebulonBuU ler and Obadiah Gore commissioners of the Susquehanna Company, that' Jeremiah Hogeboom and' Captain Solomon Strong are. entitled to the township -of Claverack, provided they settle it before the 1 st May, 1786/ and also a deposition of Jacob Bowman and John Stroup, taken before T. Cooper in October, 1784, which speaks of a.settlement in 1784v5, and 6, and of a settlement previous to 1786. Shepherd and Dorrance were not such settlers as are acknowledged by the laws of Pennsylvania; they could not be so of 12,000 acres: yet the certificates of the commissioners state that they were so. They cited Minutes of the Susquehanna Company, May 17th, 1786, p. 47. Min. of the Council of Censors, 9th September, 1784. Journals of Congress, 23d January, 1784, 24th April, 1784, 21st September, 1785.
    5. A patent cannot issue on the draft returned in this case. It is not mentioned in what part of Claverack. the land lies. There are no marked lines or boundaries. There was not in fact any survey made by the commissioners under the act of 1799:. It is impossible that this draft should be any other' than a copy of an old survey made twenty years before, because the courses and distances agree precisely, and the quantity stated in both, is “ upwards o'f 12,000 acres.” The commissioners had no power to survey, except on an actual survey with sworn chain carriers, markers, and surveyors. Act of 4th April, 1799, sect. 9. If the commissioners have exceeded or departed from their authority, their proceedings are void. They possessed special powers which must be construed strictly. Nor has this Court the power, under the' act authorising their jurisdiction, to supply their omissions,- or correct their errors, by ordering a new survey or otherwise.
    For Shepherd and Dor ranee, it was answered that this Court was not to take up the title on original grounds; they were bound by the certificates of the commissioners, which established, the rights of the parties, if they were given according to law. The commissioners were appointed by the commonwealth, and the commonwealth is bound by their acts, as to all matters submitted to their jurisdiction. They acted judicially: they received evidence, written and parol: and their decree is conclusive. That it was so intended is manifest from the circumstance that the Connecticut settler was required, by the act of 6th April, 1802, to surrender up his documents and papers into the hands of the commissioners, before he could obtain a certificate. It is objected,
    1. That Mr. Cooper's trust as commissioner was vacated previous to signing the certificate. This question must be decided by the Constitution of Pennsylvania and the acts passed under it, and not by cases under the common law of England. The trust of commissioner was not an office of profit to Mr. Cooper j he received no profit from it after being appointed judge. Nor indeed is such a trust as that of commissioner, an office within the meaning of the Constitution.' If it were, then by article 2, sect. 8, of the Constitution, the appointment to it should have been made by the Governor; for that directs that “the Governor shall appoint “ all officers whose. offices are established by this Constitu- “ tion, or shall be established by law, and whose appoint-' “ ments are not herein otherwise provided for.” But these commissioners were originally named in the act of assembly. In the senate of this state a decision has taken place, fully establishing this distinction. By art. 1, sect. 18, of the Constitution of Pennsylvania it is declared, that “ no member of- “ Congress, or other person holding any office, (except of at- • “ torney at law and in the militia), under the United States “ or this commonwealth, shall be a member of either house, “ during his continuance in Congress or in office.” Charles. Biddle, one. of our state senators, executed a commission from the President of the United States' to sign treasury notes; and it was decided by the senate that it was not incompatible. But, at all events, the commonwealth ought not to make this. objection, because it was the commonwealth that made the appointment; and if Mr. Cooper's office was vacated, another person ought to have been appointed.' Mr. Cooper's'acts as commissioner, while a judge, have been recognised in other ', cases. As to Scott,he had no interest: he made no general warranty: the deed is studiously contrived to avoid it.' Even . if he, had an interest, he was appointed by the commonwealth, and we were compelled to come before him. As to his 1300 acres held under Pennsylvania, the right to that, was not in the least affected by certifying in favour of a Connecticut. title; because his remedy against the commonwealth remained.
    2. There is nothing .in the act of assembly'limiting the num-/ ber of acres for which certificates may be granted. In many instances patents have issued on certificates for more than 600 acres. By the act of 19th March, 1810, no surveys are to be certified for more than 400 acres to any one person, nor more than 400 acres to be included in one patent, in Bedford and Ulster townships. This shews that large surveys and patents had been usual. The state cannot be injured except by the loss of patenting fees: and these fees we offered to pay in the same manner as if certificates had been issued for each tract of 400 acres. The valuation and classing of a large tract is as easy as a small one. And there has in this case been a valuation of each lot or right separately, though they are not set forth in the certificate: the commissioners returned a paper to the land office shewing the particulars.
    3. The islands are within the act of assembly, because they are included in the township of Claverack. The contents of each island are mentioned in the return of survey, though the courses and distances are not given. If the surveyor appointed by the commonwealth did not return the courses and distances it is not our fault. It has not been shewn that the islands were not granted according to the rules and regulations of the Susquehanna Company.
    • 4. It is objected that Claverack township was not settled prior to the decree of Trenton. Whether it was or not is not now the question; the commissioners have certified that it was, and that is conclusive, unless fraud be shewn. But Claverack was surveyed, and called, and known by that name, on the 4th June, 1778. This Court is not to regard the minute book or journals of the commissioners; they received evidence which does not there appear. Nor is it true that there were no settlers in Claverack until 1784, 5, and 6. The deposition taken before Mr. Cooper, mentions settlers prior to, and during the years 1784, 5, and 6. Dor ranee's application, however, was subsequent to the act of 9th April, 1807, which directed the commissioners to dispense with the necessity of a settlement prior to the decree of Trenton; and therefore his certificate is clear of this objection.
    5. We have the return of a survey adopted by the commissioners ; which is certainly prima facie evidence and stands uncontradicted. It is not, as has been alleged, a copy of the original Connecticut survey of Claverack made on the 4th June, 1778. yhat survey has no courses or distances on the river; but our’s has. • We have also field notes, shewing each day’s work ; and each lot is laid down besides the outlines. It is true that in the patent which has been made out, but not sealed, there is a mistake in one line, in inserting 133 .perches in place of 1333. ■ The draft is right; and it was a mere clerical mistake in making out the patent.'
    
      
       3 Day, 211.
      
    
   On the 10th October, 1814, the Court delivered their opinions.

.Tilghman C. J.

(After stating the case).' The applicants ■have complied on their part with every thing required by law, and now demand their patent agreeably to the certificate and survéy returned, by the commissioners. To this several objec.tions are made on behalf of the commonwealth. It is said that the.first certificate is void, because Thomas Cooper was not a ■commissioner at the. time he signed it-, and that the second is void, because Alexander Scott being interested, could not lawfully act as a commissioner. These objections must be clearly ■established before they <¡;an prevail. Both Cooper and Scott acted as commissioners, and their acts have been in other instances recognised by the officers of the commonwealth ; and the objections are of such a nature as gives reason to suppose that- they were not known or not understood by the public-Scott's interest, ifhehad any, was of a private nature; and the exception to Cooper arises upon a point of law; viz. that having ■been appointed, and having acted as President-of the Courts of Common Pleas in one of the judicial, districts of the commonwealth, his office of commissioner was .thereby vacated. This objection is severe from the mouth of the. commonwealth, under whose authority Mr. Cooper was appointed to both offices, and perhaps the commonwealth ought not to- be permitted to dispute the authority of its own commissioner, whatever might be the law as to private .persons. -But granting the objection to be as strong on behalf of the. commonwealth as of an individual, let us examine the force- of it. By the Constitution of Pennsylvania, art. 5, sect. 2, it is declared that the Judges of the Supreme Court and Presidents of . the several Courts of. Common Pleas « shall not hold any other “ office of profit under this commonwealth.” To Mr. Cooper the office of commissioner was not in-fact an office pf profit, because he did not receive a cent as commissioner from the time that he acted as a judge. ' But it is said that his not re» ceiving his pay makes no difference as to the nature of his 0g¡cej by which he was entitled to a compensation of three dollars and fifty cents for every day in which he was employecp Supposing it to be so, the office which he held does not appear to me to be within the meaning of the Constitution. It was rather the execution of a special commission, than the holding of an office, and this certainly was the opinion of the legislature ; because by the Constitution, art. 2,. sect. 8, “ the “ Governor shall appoint all officers whose. offices are esta- “ blished by this Constitution, or shall be established by /aw, “ and whose appointments are not herein otherwise provid» “ éd for.” Now then, if a commissioner under the act of April, 1799, was an officer within the meaning of the Constitution, the appointment of him belonged to the Governor; whereas all the commissioners were named hi the act, by Which the office was. established. Nor is this the only instance in which points of this kind have been brought before the legislature. By the Constitution, art. 1, sect. 18, “ no “ person holding any office, (except of attorney at law and in “ the militia), under the United States or this commonwealth, “ shall be a member of either house, during his continuance “ in office.” ' Charles Biddle, Esq. a member of the senate of Pennsylvania, was appointed by the President of the United States to act as á commissioner to sign certain bills or notes, called treasury notes, issued under the authority of an act of Congress, for which he received-a compensation. The matter was brought before the senate, who decided that his seat was not vacated. On the strength of these, precedents, and from the extreme inconvenience' which would, result from avoiding all the acts of a person who was de facto a commissioner, I am of opinion that Mr.- Cooper was a lawful commissioner when he signed the certificate.

I will now consider the objection to Mr. Scott. He had received from a certain Peter Hogeboom, by deed dated 8th August, 1794, a conveyance of an undivided fourth part of the township of Claverack (in which the -land claimed by the plaintiffs is situated) which was held by Hogeboom by a title derived from the state of Connecticut. Scott and his wife afterwards conveyed to William Hull, by deed dated 22d " 'Match, 1796, all the said undivided fourth part, except 1300 acres, to which they had a right derived from the- state of Pennsylvania. This deed contains a special warranty against the grantors and all claiming under them, and expressly provides that no other or better right is intended to be conveyed than that which Scott had acquired from Hogeboom, viz. a title- under the state of Connecticut, or the Susquehanna Company, and- that the right of the said Scott to the 1300 acres claimed under a Pennsylvania title, should be in no way impaired by the said deed. And by another deed, dated the same 22d March, Scott and wife conveyed to the said Hull, in consideration of g 250, all the interest which the said Scott had acquired to the said. 1300 acres of land, under the said deed from Hogeboom: it being expressly understood “ that the “claim of said Scott under Pennsylvania to the said 1300 “ acres should not be impeached, altered, or in any way impaired, but that his claim under Pennsylvania, at law and “ in equity, should be the same as though the said deed had “not been-executed.” These writings were drawn with a studied anxiety to avoid all responsibility on the part of Scott. He sold the Connecticut title such as he had received it and no otherwise; and his warranty is expressly confined to himself and those-who may claim under him. Therefore he was in no-way interested in the Connecticut title. All objections to the persons of the commissioners being thus removed, it remains to consider the exceptions which have been taken to •their acts. . .

- 1.' It is said that it should appear by the certificate that the land ivas surveyed in tracts of three or four hundred acres, each of which should have been separately valued. It is not ■expressly directed.by the act of 1799, that this shall be done where one person is owner of a large quantity. To the commonwealth it makes no difference whether there be one or -many surveys, provided the whole quantity be valued in the manner directed by law; and that it has been so valued the commissioners, certify. There is one point of view indeed, in which the interest of the commonwealth is affected'by a survey of - such extraordinary dimensions. The fees of patents: are a branch of public revenue; and there is no reason ’why. that source should be diminished by so unprecedented a patentas ..that which is asked for. But there need be no difficulty on.'that score. I ■ understand that the applicants will agree to pay the same fees as if the land had been divided into tracts of the usual size.

2. It. is said that islands ought not to be included in the survey.. But no reason has been assigned in support of this assertion.; The act of 1799 makes no exception of islands. The commissioners certify that. the islands are the property of . the applicants, regularly assigned to them, or those under whoni they claim, prior to the decree at Trenton. That being the case there is no .ground for distinction between islands and other lands. ...

' 3. It has been attempted to be proved that the lands included in the survey returned by the commissioners were not settled prior to the decree of Trenton. This objection would only lie against Shepherd's certificate. As to Dorrance it could have no effect; because by an act of assembly passed April 9th, 1807, (prior to Dorrance's certificate) the commissioners are authorised to proceed in cases where the .lands were not occupied- prior to the decree at Trenton. But even with respect to Shepherd's. certificate I do not see how the time of settlement can now be inquired into, because the commissioners have certified that the settlement was prior to the - decree at Trenton. So far .as the title was in the com-, monw.ealth, the legislature might dispose of it, at its pleasure.. .The commissioners are appointed by the commonwealth and vested with power to decide on the right of the Connecticut, settler, and upon their decision and certificate a patent is to be issued. It could not have been intended that-matters of this kind should remain open to.investí gatiori, because by the act. of 6th April, 1.802, sect. 10, it is made the duty-.ofjthe commissioners “to demand-and receive of, and “from, each-Connecticut settler, and claimant applying for a “.certificate, every deed and document of title under the “ Susquehanna-Company relating to the lands required to be “ certified, which may be. in the power or possession of such “ Connecticut settler or claimant previous to the issuing of “. any certificate for such lands.” The situation of a Connect ticut man maybe difficult enough in supporting a contest with an individual who claims under a prior Pennsylvania title; but hard indeed would be his case, if after delivering-up his papers he. should have to contend with the common- ivealth. I take, for granted, that every thing is fair between the commissioners and the Connecticut claimants ; that there has been neither corruption, fraud, nor collusion. Any circumstance of that kind would form an exception. But nothing like it is suggested. Under these circumstances I am of opinion that between the commonwealth and the Connecticut claimant the certificate of the commissioners is conclusive. On the merits of the case then, the applicants are entitled to a patent. But there may be reason to doubt whether the survey which has been returned be accurate. As to the islands there are no data by which to examine it; for no courses or distances are given. The quantity of land is large, and it would be unreasonable that a patent should issue while any doubt remains respecting the accuracy of the survey. I am therefore of opinion that there should be a resurvey before we make our final decree.

Yeates J.

The act which gives us jurisdiction in the present instance directs that we shall hear and determine all matters and things touching the legality of the certificates granted to the plaintiffs, and their right to 12,328 acres of land, or any part thereof, in Claverack, and decree and determine in the case, as lato and justice may require, which decree shall be final. Our decision, therefore, is not confined to the return made by the secretary of the commonwealth, on the rule to shew cause why he should not affix the great seal to the mammoth patent, made out and subscribed by Andrew JEllicott, late secretary of the land office, Upon the 15th March, 1809; but the whole merits, of the case, under all its circumstances, are open to our consideration, and we are to do equal right to the contending parties in the dernier resort.

The validity of the certificates signed by the commissioners has been much questioned. It is objected, that Thomas Cooper, Esq., having been commissioned President of the Courts of Common Pleas of the fourth judicial district, on 1st August, 1804, and of the eighth judicial district on 8th March, 1806, could not legally subscribe the certificate granted to John Shepherd on 2d January, 1807, by reason of the concluding words of the 2d section of the fifth article of the state Constitution; “ the presidents of the several Courts of “ Common Pleas shall receive for their services an adequate “ compensation to be fixed by law, but they shall receive no “fees or perquisites of office,nor hold any other office of profit under this" commonwealth.”

Mr. Cooper was appointed a commissioner on the 22d April, 1801, and proceeded to- act immediately in that chameter.' • It is admitted that he received no pay whatever for 'his acts as commissioner, subsequently to 1st August, .1804, the date of his first commission -as president. • Governor M'-Kean must .have considered at the time, how far his completion of official transactions, previously begun in the capacityof a-commiss-i oner,-would be -repugnant to the true meaning of the Constitution,1 provided he sought no compensation for such -services.- Shepherd made his application to the commissioners, as a Connecticut claimant, so early as 12th November, 1-800; and it appears, from the minutes of those commissioners, that they- and their successors proceeded to investigate his claim. I have never heard it objected against Mr. Cooper, that it was mal-conduct in him as a judge to sign such certificates* -Certainly it was not amongst the charges exhibited- against him to the legislature. Nor, independently.of the provisions of the Constitution, do I discover that incompatibility of the two-offices-of judge and commissioner, which has been ascribed, to them by the counsel on the part of the state, at any time prior to the signature of Shepherd’s certificate. ■ I do not see, antecedently to that period, that either under the original act of 4th April,. 1799, or its two supplements, of 6th April, 1802, and 4th April, 1805, the va-r lidity of such certificates could be questioned, or any contests as to title between Pennsylvania and Connecticut claimants could- possibly arise, before the Presidents of the Courts of Common Pleas.- - '

- T consider, however, the present case as fairly distinguishable -from-the plaintiff’s prosecuting an action against individuals "claiming under Pennsylvania titles'; because the same. chief executive magistrate appointed Mr.■ Cooper commissioner and -president, — -his reports as a- commissioner, although he sat as a judge, have -been -received and acted upon by the legislature, — *and certificates signed~by him and another commissioner, after he -had come upon the bench, have been-uniformly recognised by the board of property. The decisions-of-the-commissioners are declared bylaw to be binding as between Connecticut claimants, and every deed and document of the plaintiff’s title under the Susquehanna Company relating to the lands certified, have been delivered up to the commissioners undpr the 10th section of the act of 6th April, 1802.' It would, ill comport with-the honour and dignity,of..the; state,; — it.-would be -manifestly unjust, under such circumstances, in my idea, that the title of thet plaintiffs should be deemed invalid as against the commonwealth, on the ground of a supposed illegality of the appointment of a commissioner as a judge, in which by any possibility they could have neither agency nor controul.

In the appointment of Alexander Scott as a commissioner who subscribed the certificate granted to Benjamin JDorrance on the 1st January, 1808, I perceive nothing which can render it illegal. Peter Hogeboom., on the 8th August, .1794», conveyed Clave rack township to Mr. Scott and three others, with covenants against all persons claiming under Connecticut.¡ or the Susquehanna Company, and that he had a good right to sell and dispose of the premises. But when Scott and wife executed their deed to William Hull on 27th March, 1796, for the one undivided fourth part of these lands, they conveyed with a covenant of special warranty against Scott himself and his heirs, and the express intention of the parties was declared to be that Scott’s right under Hogeboom was alone transferred. It therefore clearly appears that Mr. Scott was in no wise interested, when he joined in the certificate. How far it, might be expedient to appoint him as .a commissioner, if it had been known that he had previously purchased under the Connecticut title, was a matter to be judged of by the executive magistrate who nominated him to that office.

,. The general provisions of. the act for taking up islands in the river Susquehanna do not apply to the present claim'. The object of the confirming law was to restore peace and quiet to the country; and no reason can be assigned'for a distinction between the main land and islands, as to effectuating this beneficial purpose, In fact, several instances have been shewn to the Court, of patents having issued .to Connecticut claimants for-islands, and that those patents have included more than 600. acres of land; , We find, in the act of 19th March, 1810, alone, a provision that patents to be granted for lands in Bedford and Ulster townships, to Connecticut claimants, shall not exceed the quantity of 400. acres.,

I view the survey of Claverack as.comprehending the islands mentioned in the patent. This appears by. the draft approved of on 4th June, 1788 ; and the plaintiff’s return of survey evidently includes those islands. I consider the certificates of the commissioners as the strongest evidence against the commonwealth, that the- plaintiffs have, fairly made out their pretensions to legal settlements, agreeably to the rules and regulations of the Susquehanna Company, to the entire satisfaction of those officers. They have been on the spot and decided on the subject under legal authority. No Connecticut claimant objects to the grant. We can intend nothing against the correctness of the facts which have been stated by the commissioners.

It is perfectly obvious that a lien on the whole of the large tract, for the full consideration money and interest, would be a more effectual security to the state, than subjecting subordinate rights or lots to the payment of their relative proportions of the purchase money.

As to including so large a quantity of land as 12,328 acres 15 perches in one patent, the plaintiff’s counsel have offered to pay such fees to the commonwealth as this Court may think just and reasonable. All things considered, it seems to me that the common and usual fees should be paid into the treasury according to the practice of the office.

The only remaining question respects the return of survey. Its defects ought to be corrected in the most easy, and least expensive mode. It is admitted that there is a capital mistake in the length of one line, which is called 133 instead of 1335 perches. It is said that this was an error in transcribing it. But there may be other mistakes in so large a survey, and it is not yet ascertained whether the survey will close upon a calculation of the courses and distances. The islands are not returned as surveyed by courses and distances. The return should be accurate and certain, whereon the grants may be made, in order to avoid injustice to the state as well as to the individuals. I have no doubt of the power of this Court to direct a re-survey, and that, under our order, the board of property or surveyor general would be authorised to take effectual measures to revise and correct any errors which may appear in the return already made$ and which, in my opinion, should be pursued in the present instance. It is our bounden duty to make such a decree as shall finally settle the dispute, and prevent further trouble to the legislature upon this subject. It never could be said that our decision was founded in law and justice, if mistakes and errors-which might be supplied and amended should be permitted to remain uncorrectcd, and the plaintiffs thereby should remain wholly remediless. My opinion on the whole matter is that the plaintiffs are legally entitled to a patent for the lands comprised in the certificate of the commissioners, upon their pay-' ment of the accustomed office fees, and that an order should issue from this Court directing a re-survey, and that an accurate survey be made of the lands certified, comprehending the courses and distances of the several islands returned, previous to our final decree.

Brackenridge J. concurred with the Chief Justice.

The Court thereupon ordered a re-survey, and adjourned to the second Monday following the third Monday of May, ISIS, On that day the Court met again, but the resurvey which had been ordered by the surveyor general not being completed, another adjournment took place. On the 3d of June, 1816, the Court met at Lancaster, (present the Chief Justice and Teates J.) C. Smith Esq. appeared for Shepherd and Dorrance, and the surveyor general (Leech), and secretary of the land office (Cochran), on the part of the commonwealth. The Court, having examined the re-survey which had been in the meanwhile returned, made a decree which was approved by both parties.  