
    *AT A CIRCUIT COURT, AT PITTSBURGH,
    NOVEMBER 1803.
    CORAM, YEATES AND SMITH, JUSTICES.
    Lessee of George Eddy, sen. against John Faulkner.
    A second return of surrey on an order of the Board of Property, differing from the first return, may be given in evidence to correct a mistake in the first return. _
    _ The usage of the land office as to substituting other names in applications, with the consent of the applicant, after the 22d April 1794, provided the boundaries are not changed,- may be received in evidence.
    No actual settlement or transfer thereof, subsequent to an adverse survey under a warrant, can be received in evidence.
    Warrants for lands north and west of the Ohio and Allegheny, whereon no actual settlements have been made by reason of the Indian hostilities within two years after such warrants, are not vacated thereby.
    The plaintiff claimed under a warrant for 400 acres, north and west of Ohio and Allegheny rivers and Conewango creek, including his improvement, adjoining lands granted to Joseph Thomas, dated 25th April 1793 ; and a survey made thereon by John Redick and John Caruthers, under the direction of John Hoge, deputy surveyor, in March 1795.
    The defendant claimed under John B. C. Lucas, esquire, as an actual Settler of the lands.
    The facts disclosed in evidence were as follows : On the 25th April 1793, John M'Kee entered fifteen applications in the land office, for tracts of land of 400 acres each, in his own name, Michael Berickman and others, north and west of the river Ohio-. He paid no part of the purchase money; but on his return to the western country, applied to his brother in law, the aforesaid John Redick (who acted under John Hoge, deputy surveyor of a district) to meet him on the nth June following at a block house on Beaver creek, to make surveys on certain warrants. He there pretended he had left his warrants at Pittsburgh through oversight, and prevailed on him to make the surveys, and run the outlines of a large tract, excluding the lands in question. M'Kee then asserted, that he would not meddle with, nor injure the claims of any of the improvers. It was testified by one witness, that John Wolff had erected a cabin fourteen feet square on the lands in dispute, bút did not reside in it. He afterwards assigned in 1796, his improvement claim to John B. C. Lucas. M'Kee found the provisions during the running of the lines, but paid no surveying fees.
    *=;8il t^s time, neither the lines of the donation lands, J nor of the adjoining district of-Leet, were known to Redick, and the survey made run 62 perches into the donation lines.
    Redick repeatedly demanded the warrants from M'Kee, that they might be entered in his book, as the law of 3d April 1792 directs, otherwise actual settlers might in the mean time obtain a preference. He at length found out that-M'Kee had no warrants, and then he declared publickly, that the surveys he had made were inofficial and of no avail.
    On the 24th May 1794, M'Kee sold and assigned his right in the fifteen applications to Gideon Hill Wells and Richard Hill Morris, in consideration of 375I., and covenanted, on the warrants being issued and put into his hands in three months, to cause regular return to be made on them, without further charge to the purchasers, than the payment of the surveying fees.
    
      On the 12th June 1794, Wells and Morris paid into the receiver general’s office 450I. specie, on the fifteen warrants, including Eddy’s. The names used in the applications had been previously altered, and new names substituted, but when did not appear, though M‘Kee swore it was before the office was shut. Thus, instead of Michael Berickman, the name of George Eddy was inserted; and instead of John M‘Kee, was inserted Joseph Thomas, &c., but the descriptive parts of the applications were not otherwise changed in the most minute particulars. This was fully proved by the officers of the land office to have been the uniform usage, and the names so substituted were always considered as standing in the places of the original appliers.
    On the 18th August 1794, George Eddy’s warrant was entered in the book of the deputy surveyor.
    In March 1795, the aforesaid John Redick and John Caru-thers crossed the Ohio to make the surveys on the fifteen warrants issued, and 171 other warrants ; they were interrupted by armed men, who complained they were running in their claims, though none of them at the time resided on that side of the river. These men were at length induced to permit the surveyors to run certain outlines, which were afterwards subdivided, and the warrants applied thereto, by John Hoge, at Washington. Mr. Hoge carried the returns of survey to Philadelphia, and there signed them, and by mistake returned the survey for Eddy, as made on 12th May 1794, before the warrant issued. But this mistake was corrected by a new return, under an order of the Board of Property, dated 8th June 1803. The survey returned for Eddy included the lands in question, and there was no actual settlement made thereon in March 1795.
    *In the course of the trial, the defendant’s counsel « „ contended, that the second return of survey ought not ^ to be received in evidence, inasmuch as it contradicted the first return made by John Hoge, the regular deputy surveyor of the district, wherein it was stated that the survey was made on the 12th May 1794.
    But the court overruled the objection. No official survey could be made till the warrant issued, and this could not be till after 12th June 1794, when the purchase money was paid. The mistake is evident on' a comparison of dates, and the second return is the mere correction of an error, as to the real time of the survey being made. It must go to the jury, with the parol testimony of the artists on the ground, together with the first return, and must be judged of by them. It would be the height of injustice to affect an honest, claim to lands by the oversight of a surveyor in making his return. Such return is but evidence of the survey. What has been done on the ground is the real survey, and has been often so determined.
    It was further objected, that the depositions of the land officers taken under a rule of court, stating the usage beforemen-tioned, could not be admitted to be read, because that usage, instituted by themselves, runs counter to the. act of assembly passed on the 22d April 1794, (3 St. Laws 581,) and supercedes the usual course of the law. But the court overruled this objection also. The substitution of other names, with the consent of the original application, is not prevented by the act. It is no new application, unless the boundaries of the lands applied for are changed. That law, which provides, “ that all ap- “ plications for lands, which may remain on the files of the land “office after the 15th June then next, and for which the pur- “ chase money shall not have been paid on that day, shall be “ null and void,” necessarily implies, that such applications, on which the purchase money shall be so paid, shall be valid foundations of warrants, which are antedated by official usage, so as to correspond with the times of the applications filed. Such substitution neither injures the state nor the interests of any individual.
    Explained and followed in 5 S. & R. 185.
    Distinguished in 15 S. & R. 222.
    Cited in 1 Pa. 416 to show that no title can be acquired by settlement on patented or warranted land, for the plain reason that none but the public lands are open to such appropriations.
    The defendant offered the .assignment of the improvement claim, by John Wolff to John B. C. Lucas, dated 23d January 1796, in evidence. But it being admitted that no actual settlement was -made on the lands antecedent to the survey made for the plaintiff in March 1795, the assignment was declared by the court to be irrelevant. 2 Bos. and Pull. 525. No actual settlement, subsequent to an adverse survey, can confer a title, or be * „ *received in evidence. It follows therefore that no trans- ^ fer of it can be received.
    Finally, it was insisted that the plaintiff’s warrant was utterly void and dead in law, no actual settlement having been made on the lands within two years after the date of the warrant. But the court said this point had been so often determined otherwise, under the then existing state of the country across the Ohio and Allegheny, that they could not now suffer it to be disputed.
    Messrs. Addison and Woods, pro quer.
    
    Messrs. Ross and Foster, pro def.
    
   A bill of exceptions to the opinion of the court on the foregoing points stated, was tendered and sealed.

The jury gave a verdict for the plaintiff.

The judgment on this verdict was affirmed on a writ of error, after argument, at Pittsburgh, in September term 1806. 1 Binn. 188.  