
    *Lessee of John Davis against Josiah White and Anne Chestnut.
    Copy of a survey not returned, nor verified by the surveyor who made it, cannot be received in evidence.
    The plaintiff claimed 400 acres of land, across the Allegheny, now in Armstrong county, but within the jurisdiction of West-moreland county, as an actual settler. He claimed under one Edward M'Gee, who was said to have first seated himself on the land, in the spring, of 1793, and obtained a survey.
    The certificate of Stephen Gapen, deputy surveyor of the district, of a survey made by him of 182 acres and 88 perches on the nth March 1793, under the improvement made by M'Gee, begun three days before, was offered in evidence; but overruled by the court.
    Mr. Addison, pro quer. Mr. Sample, pro def.
    
   Several decisions have established, that the actual settler, in conformity with the law, must have obtained a survey, before he can recover in ejectment; but the present paper is mere hearsay; it is no more than a written declaration of what the surveyor has done, and he is not here to verify it. If the survey had been returned into the surveyor general’s office, a copy of it would have been evidence, by reason of the sanction it thereby obtains. The plaintiff cannot proceed, but must be nonsuited.

It being however alledged, that this would be a surprise on the counsel, the present copy having been received in evidence, on a former trial in the Court of Common Pleas, between the same parties, a juror was withdrawn by consent, on the lessor of the plaintiff agreeing to pay the costs of the court.  