
    [Sunbury,
    June 20, 1824.]
    LAMBOURN and another, Executors of LAMBOURN, against HARTSWICK.
    IN ERROR.
    It is sufficient evidence of an actual survey, to show that any part of it was made on the ground.
    When a surveyor, in his return, calls for an old line of an adjoining survey, it is not necessary to show that such survey was returned.
    Error to the Court of Common Pleas of Centre county, in ejectment for four hundred and twenty-three acres and forty-nine perches of land in Patton township, Centre county, brought by John Lambourn and Ephraim Lambourn, executors of Josiah Lambourn, deceased, against Christian Hartswick, in which a verdict and judgment were returned in favour of the defendant.
    The plaintiffs claimed under a warrant in favour of Josiah Lambourn, for four hundred acres, including his improvement, dated the 39th of December, 1801, with interest from the 1st of May, 1793: a survey of four hundred and twenty-three acres and forty-nine perches, by James Harris, deputy surveyor, on the 27th of January, 1802, and returned and accepted the 28th of March, 1S08, on which a patent issued the 9th of March, 1816.
    The defendant claimed under a warrant to Benjamin Davis, dated the 1st of July, 1784, adjoining twelve other warrants of various names of the same date, calling for adjoining, among which was T. West, jr., the tract in question. On the 22d, 23d, and 24th of November, 1784, surveys were made on these warrants, and were certified to have been returned on the 24th of April, 17S6. On the 11th of September, 1791, T. West, jr., conveyed to Colonel Samuel Miles, and by sundry mesne conveyances and the will of Colonel Miles, this title was regularly vested in the defendant’s landlord. S. Miles and others brought an ejectment to August term, 1818, against II. Hartswick, Isaac and John Lambourn, and, on the 27th of February, 1820, obtained a verdict and judgment.
    The plaintiffs, after the proof of the foregoing facts, offered in evidence the draughts of 12. Adams, 19th of November, 1793; John Price, 20th of November, 1793; Nicholas Diehl, 13th of June, 1785; and John O’Bryan, 25th of November, 1784; — as evidence of boundary, and to accompany them with proof, that beginning with Richard Adams, on the south cabin, and measuring along the lines of the four above named tracts, there will be land enough left for T. West, jr., without interfering with the Lambourns. This evidence was objected to by the defendant.
    Per Curiam. The court reject the two first. The defendant has shown a survey in 1784, returned in 1786; and to show that this might have been laid otherwise, the plaintiffs offer two surveys made in 1793 on warrants of 1792, not adjoining the defendant, but west several miles off. The court and jury are not to decide how Colonel Miles might have laid his surveys in 1784, but how he did lay them. The plaintiff’s ancestor was not there, and had no claim until 1792. As to N. Diehl, as it adjoins the defendant, it may be shown, and proved where it is. As to O’Bryan, it is one of the plaintiff’s, and there is no objection to if.
    To this opinion the plaintiffs excepted.
    The plaintiffs then offered in evidence the following deposition of Daniel Turner, which was admitted to have, been regularly taken, but objected to by the defendant:
    “That in the year 1793, I began to survey at James Sharron’s corner; from thence I ran three courses, and found no line until I came to the third corner: from thence I run on old lines, agreeable to Lewis Lewis’s draught, on Barton’s and other surveys, until I came to a tract in the name of Roger Flahaven. There t left the old Coudon lines, and proceeded agreeable to the draught, including to the left hand, until I came to the head of that survey, except one paper line that I had to close them. I proceeded to the east side of the said surveys, and there found the lines not run, and the draught incorrect, and then told General Patton that Lewis’s draught carried a lie in its right hand, and he had better go and get a correct draught from J. J. Wallis, deputy surveyor, which he did. I then run the lines on the west side, as already stated, the two draughts agreeing on that side, but not on the east side. I then, being a regular deputy of Joseph J. Wallis,” &c.
    Per Curiam. The deponent states that he ran lines and found he had an incorrect draught, he does not state what draught he had, nor of what survey, nor what lines he ran. He states that Patton got a correct draught, but not what draught, nor of what survey. Then he ran the lines on the west side, as already stated; but still not saying what lines, or what courses and distances. He says the two draughts agreed on the west side, but not on the east; but what draughts we do not know. It is all unintelligible, and not evidence. Besides, this matter is already expressly decided in the case of Packer v. Gonzalus, 1 Serg. & Rawle, 532.
    The plaintiffs tendered another bill of exceptions.
    The plaintiffs then examined Joseph B. Shugart and John Mitchell as witnesses, as to the lines, and Judge Huston, who proved that there were two surveys well made on the ground, on applications in 1766; one in the name of Michael Braziel, the other in the name of Jacob Buck, but they were never returned. Ejectments were brought on them and discontinued.
    The defendant then called William Wilson, who testified as follows:
    “ On the 16th of this month, I traced some lines in the presence of the jury in the box. There was an altercation about where we should start; points which Mr. Miles said were wrong. We went to a line south 82 east to a mark, and ran the line of Roger Flahaven, north 84 west, to a broken white oak slump, — marks on it. From that we ran south 13 west, without a line, or rather across a line, north 21z- east: continued south 17 west one hundred and sixty perches, — no line. The next day we began at a blazed pine, south 3-f east,' — same marks: did not go far, but went back, and ran south 38 west one hundred and forty-six perches to Lambourn’s survey; in all, three hundred and sixty-eight: blocked several trees, all of which counted to 1793.
    
      “ I think that line was run by Daniel Turner and me, to ascertain where these surveys would go. We had an incorrect draught, and never touched the old surveys. No marks on it, different from thirty to thirty-one years. .
    
      “ Then we went to a pine, the corner of William Ellis, — ran south 68 east thirty perches into a field, a little back of ITartswick’s house, — timber all down: then north 37 east, and when out of a field got on an old line, — some counting fifty-seven or fifty-eight years, — some marks twenty years, — went three hundred and sixty-two perches to the intersection of Roger Flahaven. I had run between White and West, — there is a line south 82 west, in running from the survey of T. West and John White, north 82 west, the line crosses the run and comes in a bank. The resurvey between T. West, jr., and T. West, runs from the white oak on Flahaven’s line.”
    
      Cross-examined. “ Daniel Turner employed me in 1793,— who employed him I do not know. General Patton was not there. We ran to enable us to lay surveys, and we did not run the lines of Miles’ surveys. Do not know who furnished Turner with the draughts. I have no recollection of the names of the draughts. We followed lines along Buffaloe run, — at length got off them. I believe the line I mentioned is the one then run.”
    
      Third bill of Exceptions. The plaintiffs then offered the deposition of Daniel Turner, again. It was objected to and rejected, and exception taken.
    Certain points were proposed by the plaintiffs’ counsel to the eoDrt, which, yvith their answers, were as follows:
    
      Second point. That although it is not necessary to re-mark old lines, where a new survey calls for adjoining an old survey, yet the lines called for, must be the .lines of a legal survey made by the proper officer, and returned into the surveyor general’s office and accepted.
    
      Answer. When a surveyor goes to execute a warrant adjoining old surveys, it never was necessary to send to the land office, to ascertain whether the old survey was returned. At least this was unnecessary in 1784: there was at that time a law expressly allowing surveys made, and not returned to be returned thereafter.
    3. That a new survey ealling for an old survey, where there is no evidence of the lines of the ancient survey having been made by the proper officer, or a survey returned into the surveyor general’s office: although there may be an ancient marked line on the ground, yet it is necessary, in marking the new survey, to re-mark the lines; the marking of new lines never having been dispensed with, except where it adjoins the lines of a survey made by the proper officer, and returned into the surveyor general’s office.
    «Answer. The old surveyors before the war, were generally dead or removed in 1784, and when a new man came in and found regular lines of another survey, he was not bound to go to the trouble and expense of ascertaining whether they were made by a legal deputy surveyor, nor need he send to the land office to inquire whether returned or not. If the man for whom he was executing the warrant was willing to trust them as surveys, and to keep from interfering with and to adjoin them, the deputy surveyor might do so and need not re-mark the old lines, and it never was necessary, nor is it, that the old survey should be returned.
    4. That when a survey has been made on an application abandoned by the owner, and never returned into the surveyor general’s office, that the lines of this abandoned survey, called for by a recent survey, without being marked on the ground for the late survey, gives no notice and will not constitute a survey.
    
      Answer. I do not know what is meant by the assumption of facts in this case. The old survey was not abandoned in 1784, 1792, or 1801. An ejectment was brought on it after 1S01. After the decision of other causes, this was discontinued about 1810. The lines of MichaelBrazieland Jacob Buck were on the ground, and it was not necessary to re-mark that one of them which was adopted as a line by T. West, jr.
    ■ As to the last three points, they seem to me to all embrace the same object. Unwilling, however, to be mistaken, I asked the counsel wherein the difference consisted. He replied, they were different, — that the last was different from the others; but gave no further explanation.
    The Court (Huston, President) charged the jury.
    Charge. The defendant’s leading warrant, and all those following, to John White, are located with absolute certainty, by calling for old surveys by name. Thomas West is to join John White, and Thomas West, jr., adjoins Thomas West. In making the surveys, each warrant was laid adjoining the old survey it calls for. Above this, the suryey of Miles adjoins old surveys, but does not name the survey called for; but old surveys are there, and Miles adjoins them. Miles had two tiers of surveys, — the old surveys are his northern boundary. A line of 1784 is found on the east end along B. Davis and Grigson, and corners: at the same time, the old southern boundary and corners were regularly run and marked, and are now found.
    
      The western line is not found, nor does it appear to have been searched for. Shugart had been put on a wrong track by the plaintiffs and therefore had no chance to find it. Mitchell looked for it a little (to use his own words) at one spot, and does not pretend to say that he searched carefully. This would bring the case to this point: — is the running and marking the outside lines and corners of a range of surveys belonging to the same person sufficient, or must the division lines be all run and marked to give title? In trying Bond v. Straube before Justices Ye ates and Smith, each party had a range of surveys, or rather each two ranges, and neither had run the division lines. I well remember that Judge Smith interrupted the examination on this point, and. said no surveyor, in marking several surveys adjoining, for the same person, ever run and marked the division lines. From the year 1800 to this time, I have been engaged where many titles have been tried, and, until 1812, I personally examined many ranges of surveys, I have seen on the ground, or heard surveyors examined in court as to their surveys, as to B. and «#. Morgan’s surveys in Huntingdon and this county, — Freni’s surveys, Wallis, James, and Drinker, Haine’s Wistar’s, and the lands in Bald Eagle, Nittaney, and Brush valley; I have an equal knowledge of Lycoming. I have found the division lines omitted between surveys belonging to different owners, and never found them marked between surveys adjoining the property of the same owner, and never heard of any surveyor who did it, or any court which decided it was necessary. It is worse than idle, then, to inquire whether it would have been better to have done so originally. Universal usage forms part of, or makes the common law of every country, and must do so. To decide now that a universal practice avoided titles, would be to destroy almost all titles, and the oldest titles to the best land in the country.
    Few land-holders now in the court house, and not half the owners of the best land in the country, would be unaffected. The question has been settled by hundreds of decisions, — by the Supreme Court, in 7 Serg. & Rawle, 220; and the peace and safety of the country require that it should be left undisturbed. But, in fact, in this case we are not called upon to decide that question; for when part of a survey is found, it is prima facie evidence that the whole was made; and this presumption is not destroyed, until proof is given that in fact the rest was not run; or proof of facts which render it undeniable, or at least improbable, that the rest was run. Have we any such proof here? At the east end a corner is found between the two ranges of surveys, and no one has said that the whole line between the two ranges has not been run; no one has ever examined it; nor has there been any examination for the division line by any person except Shugart, who never was one yard on the lines of the defendants. The defendants, then, have evidence enough of a legal suryey. As to the plaintiffs’ title, they have; a warrant, survey, return and patent, and proof of improvement in 1782. Iiis improvements,'however, were about half a mile from any part of the defendants’ land, yet, when he comes to survey in 1802, be includes his improvement, and extends his survey into Miles’ land: this he could not legally do, as that was not vacant land; the state had sold it in 1784, and it had been returned in 1786. The state could not sell it again in 1792 or 1802. The plaintiff’s father could acquire no right to it by his improvements half a mile distant from it. The moment he put Harts-wick within Miles’ line, Miles brought the former ejectment and recovered. There is therefore no equity from labour or money expended. The defendants’ title, being the oldest, is the best.
    But a new point is made, and the plaintiffs seem to rest their claim on this fact. The old surveys laying north of, and called for by Miles, are all admitted to be returned, till you pass R. Flahaven. Westerly from that, lay two old surveys, of 1776, which were not then, and are not yet returned; the lands within which are those Lambourn holds by improvement. T. West, jr., is bounded northerly by these two old surveys. The plaintiffs say, the fact of these old surveys not being returned, avoids the survey of T. West, jr. Now the law is not so.
    It may be material to the owner of an old survey, whether it is returned or not; but in 1784, it was immaterial to the owner of T. West, jr. whether the old survey was returned or not, if the line of an old survey was on the ground, and he adjoined it, it was enough for him. He may call for it, and need not re-mark it. The law of. the 5th of April, 1782, and other laws, permitted the old surveys to be returned, long after that. And whether it ever was returned, is immaterial to the owner of T. West, jr. This, and more than this, has often been decided, particularly in Keble t. Arthurs, where a false oath did not destroy a very defective survey.
    This opinion and charge of the court were excepted to by the plaintiffs.
    The plaintiffs in error now assigned as errors,
    1. Rejecting the official draught of R. Adams, of the 19th of November, 1793, and John Price, of the 20th of November, 1793, offered as boundary, &c. as is contained in the first bill of exceptions.
    2. In rejecting the deposition of Daniel Turner, as is contained in the second and third bills of exceptions.
    3. In not fully answering the second point made by the plaintiff’s counsel. And there is error in the answer as given.
    4. In the answer to the third point, in instructing the jury, that it was unnecessary to re-mark any ancient marked line, found upon the ground, whether made by the proper officer or not, or the survey returned into the surveyor general’s offiee, in making a recent survey, adjoining the ancient linn,
    
      5. In the answer to the fourth point, in not answering the point of law submitted; and in instructing the jury, that the lines of M. Braziel, and Jacob Buck, being on the ground, it was unnecessary to re-mark that one of them which was adopted as a line of T. West, jr.
    6. To that part of the charge, in which the court instructed the jury, “that it was not material to the owner of T. West, jr., whether the old survey was returned or not. If the line of the old survey was on the ground, and he adjoined it, it was enough for him.”
    
      Potter, for the plaintiffs in error,
    now insisted on the first error assigned, and relinquished the second; but contended,
    ‘ 3. That there was certainly error in rejecting Daniel Turner’s deposition, when it was offered a second time. This deposition was evidence, 1. To contradict the evidence of William Wilson. 2. To explain by whose directions the line run by Turner, in 1793, was run, namely, General Patton, who, with Colonel Miles, was owner of the land. 3. To explain the evidence of William Wilson. It was material to show, that Patton and Miles, having marked their land, could not change it, to the injury of Lambourn. Turner swore, that the draughts were delivered to him by Colonel Patton; from which the plaintiff’s counsel would have argued to the jury, that the lines were run under Patton’s direction.
    4. There was error in the answer of the court, to the 2d, 3d, and 4th points; namely, that in making a new survey, it is not sufficient to refer to the defendant’s lines, unless they were run by an officer, and returned, but it is necessary to mark the old lines anew. It has been decided, that a new survey, referring to old official lines, is good, without re-marking them. That is the utmost extent to which the court has gone. In M‘Rea v. Plummer, 1 Binn. 230, the Chief Justice puts the case of a surveyor receiving a warrant, where the land to be surveyed on it is bounded on three sides by the lines of other tracts, whieh he has surveyed before, and says, “It is not contended that he is obliged to run those three lines over again; — and why? Because it would be useless trouble, those lines having been run and marked by legal authority before.” The same language is used by Ye ates, J., in commenting on the case of Stockman v. Blair, 5 Binn. 215. In Hubley v. Vanhorne, 7 Serg. & Rawle, 185, a void survey was held to be no survey, as to a person procuring a subsequent survey. And Fugate v. Coxe, 4 Serg. & Rawle, 293, decides, that the running of one line only is not sufficient to establish a survey; which doctrine was recognized and confirmed in Morris v. Travis, 7 Serg. & Rawle, 220.
    
    
      Burnside, contra.
    If the court relaxes on the doctrine of surveys, we shall be thrown into confusion. That is my sincere opinion. I have been misrepresented, as holding wild opinions on the subject of actual survey, and marking on the ground. I think it is sufficient, if it is proved that the surveyor was on the ground, and ran some lines, and returned his survey. The law is declared by the Chief Justice, in Covert v. Irwin, 3 Serg. & Rawle, 288, to be, that where a new survey is made, calling for the lines of an old survey, there is no occasion to mark the lines anew; double marks are apt to create confusion; and the new survey is as well identified by referring to the old lines, as if each boundary line were marked over again. Whether a new survey is actually made on the ground, is a fact to be decided by the jury. It ought, moreover, now to be presumed, that a survey made in 1776' was made by authority, although not returned. A great tract of country, a million of acres, in the counties of Centre, Mifflin, Clearfield, and part of Indiana, is owned by non-residents, who have been paying taxes from twenty to fifty years, which lands are now occupied by persons claiming by improvement rights. The first alarming doctrine was delivered by Judge Smith, in Centre and Mifflin, in 1804. The whole country immediately began to make tomahawk improvements. Keble v. Arthur was tried before the Chief Justice, (Tilghman,) who charged in favour of the survey. The jury found for the defendant. A new trial was granted; and there' was a second verdict for the defendant, and the court again granted a new trial. On a third trial, before Judge Walker, he gave an elaborate charge, in favour of the plaintiff, and the jury found agreeably to the charge. Then the law became settled; and many verdicts were given accordingly., Coxe v. Fugate again set people’s minds afloat; in which this court decided, that one lino did not make a survey. It has since been urged to juries, that if one line does not make a survey, neither do two, or any number less than the whole. In this case, it was proved by Judge Huston, that the old surveys in 1766, to which our surveys referred, were made, but not returned, on locations legally entered. In such case, the presumption is, that the surveys were made by lawful surveyors. The judge charged very properly, that the defendant was not obliged to bring positive proof of the person by whom the surveys were made. It was to be presumed, that the old lines were run by authority. Positive proof is not proof now to be expected. The defendant has paid taxes to nearly the amount of one thousand dollars.
    
      Burnside was proceeding to argue on the bills of exceptions, but the court told him, that he need not speak to the first. '
    Third bill of exceptions; rejection of Turners deposition. This point was decided in Packer v. Gonzalus, 1 Serg. & Rawle, 532. The deposition is unintelligible, as it refers to several draughts, which were not produced. It does not answer the purpose of contradicting Wilson, because it makes no mention of Wilson. It Was no way material to the case.
    
      
      Blanchard, was to have argued on the same side, but the court relieved him, as to every thing but the rejection of Turner’s deposition.
    
      Potter, in reply,
    relied on this point.
   The opinion of the court was delivered by

Duncan, J.

The dispute in this case was, whether the survey of T. West, Jr., returned by the regular deputy, in 1786, was an actual survey, or a paper one. When a survey is returned, it is always prima facie evidence that it was duly made, and it lies on the adverse party to disprove it. But, when a time analogous to the statute of limitations has run round — where the owner has continued to pay the public taxes, where 'there has been no caveat, it would seem to me worthy of all consideration, whether it ought not to be a presumption of law, conclusive of the fact, (the purchase money being paid into the public treasury,) that the survey purporting to have been made by the public officer, returned and received into the public office, the public recognizing it by assessment of taxes, the owner contributing to the support of government, was in fact made. It is so consistent with legal presumption, made for the sake of peace, in all cases of this nature, (as livery of seisin, the surrender of copyhold,) to give to the holder of that which he has paid for actual investiture, all the forms of an effective conveyance; and that, as it is good between the state, and the purchaser from the state, so it should bind those claiming under the state; as well where they claimed under pretence of settlement, as of subsequent office right.- This species of right certainly falls within the reason of the law, which gives to the bona fide holder of a legal or equitable right the protection of presumption of length of time, of the forms and ceremonies required byr law, to complete and perfect his title. It is on the ground of general convenience, public good, and security of titles, that the protection is extended to incorporeal rights — to payment and extinguishment of mortgages. It is as difficult for the owner to keep alive his marks on the ground, as it is impossible for him to keep alive the witnesses who made them. Time, the exterminator of all things, accident by tempest and by fire, may prostrate the best marked lines; and when to this is added the destructive hand of man, who is led into the strong temptation of rooting up the distant owner’s land marks, and thereby, by this accursed thing— of removing land marks — making himself the owner of the land; the reasons are very cogent in favour of this legal presumption. It is not required of the court now to decide this; and such a case has not heretofore come directly in judgment. At present, according to the spirit of all former decisions, it appears to me sufficient'evidence of a survey returned, an actual survey, to show that any part of it was made on the ground. The act of assembly, it was decided, in Woods v. Insersoll, was in this particular but directory; for I hold it to be a good survey, if the surveyor marks so much on the ground as to enable him to close the survey from the adjoining surveys, natural boundaries, and his own personal knowledge, and the decision of the Supreme Court of the United, States, proceeds on the same principle. 4 Wheat. 598. And in Taylor v. Brown, 5 Cranch, 243, Chief Justice Marshall said, ££ If the omission to record the survey avoid it, then the omission of any other act enjoined by the same section of the act would render it equally void. The surveyor is directed to see the lands plainly bounded by natural boundaries, and marked trees. Has his omission to do this ever been inquired into, in a contest respecting the validity of a survey? Would any gentleman of the bar contend, that, because the land was not plainly bounded, that for that reason a survey actually made was void?”

On examining the propositions on which the counsel of the plaintiffs required the opinion of the court, they will be found to be substantially but two. The first was, whether there must not be at least one line applicable to the particular survey. The answer to this was very full, and very accurate. ££ There must have been lines on the ground, and there must be, or must have been one line applicable” to the survey in question, lines of old surveys, are equal to new lines; leaving to the jury, (and there was a view,} the faet of a survey on the ground.

The second'proposition, though branched into four inquiries, w7as, whether, when a surveyor in his return called for an old survey, as a boundary, it was necessary to prove that survey returned into the office,'” Evidence was given, that there were two ancient well made surveys in 1766; one in the name of Michael Braziel, the other in the name of Jacob Buck, which .were not returned, in which it seems ejectment had at one time been brought, but had, for some cause, been discontinued. Thus the question did not arise, whether the lines adopted had been the work of a regular deputy, with an order in his hands, or a mere private, unauthorized, unofficial act. But it arose on a w'ell marked line, an office right; and the learned judge gitfes such an answer to the proposition as was to be expected, from his great experience, and matured judgment, on questions of this nature. The owner of a warrant, bounded by such a survey, has nothing to do with the return.' It matters not to him why it was not returned, or why, if you please, it was abandoned. Any one at all conversant in the land titles of Pennsylvania, well knows, that there are numerous legal unquestioned surveys, made even so far back as 1766, that have not been returned to this day; owing sometimes to the fault of the deputy; sometimes to the default or negligence of the proprietor, in not paying the fees, or calling for the return. The question is not on the validity of the survey, its return, or abandonment, but whether de facto there was such a boundary on the ground, to which the surveyor might refer, without marking it anew, and adopt it in an adjoining survey. Most clearly he might, and the survey being found marked, would be sufficient. It is a matter of boundary, not of title; to prove which, even hearsay, after a great length of time, is admissible evidence. Most clearly, in such a case as this, he might adopt it as a boundary, without the useless labour of marking it again; which would tend to confound the first title, ■ and render it a matter of dispute afterwards, when the first survey was made; and 1 do not know that it would be lawful for the surveyor to make fresh marks on an ancient boundary. But one thing is very certain, it would be idle and unnecessary; and after so great alapseof time — nearly sixty years since these ancient surveys were made, the court would presume, for the purpose of boundary, they were made by legal authority. The charge throughout receives my entire approbation. It contains the soundest doctrine; and in a case circumstanced as this is, I have struggled to get over the exception^ as to the rejection of Daniel Turner’s deposition. I cannot See how the evidence of Joseph Shugart proved any fact to impugn the defendant’s survey. His right became fixed by the return; it was beyond his control. The warrant was functus officio; there was no order of re-survey. The employment of án assistant, to a deputy surveyor, to examine the ancient lines, and the irregular work of that surveyor, and his marking other lines, could not remove the warrant, or defeat the defendant’s right, fixed down to a particular spot, by the survey and return.

But this evidence of an experimental irregular line was read without opposition; and the defendant gave evidence, by William Wilson, how the line came to be run; that it was done by Turner, from an incorrect draught, and never located the old surveys. The plaintiff then cross-examined him; when he said, he did not know who employed Turner, or furnished the incorrect draught. This made way for the admission of Daniel Twiner’s deposition, which had been before so justly rejected, for the reasons given by the court. Indeed, such evidence was so unsatisfactory, vague, and rambling, that it ought never to have been read, to establish by itself any fact. Yet, as his name, the draught, and General Patton, as one of the owners, had been introduced, in one point of view it was admissible, to show that the work had been done under the direction of General Patton, and that he furnished the incorrect draught. If the plaintiffs had been called upon to state for what purpose it was-offered, and had shown it as evidence in chief, to substantiate a fact, and the court had overruled it, it would then have been properly overruled. For, when evidence is offered, the adverse party has a right to call on the other party, to know what it is intended as proof of; and if he states it, then it is to be tested by that statement, and if it is not evidence of that fact, though it might be evidence of some other matter, the rejection would be no cause to reverse a judgment. But this does not appear; nor does the opinion of the court assign any reason for its rejection; but it appears to have been a general offer, and a general rejection. 4 Binn. 201, 335. Gordon v. The Lessee of Moore, 5 Binn. 138. I incline to think the court considered it but as a renewal of the application first made, to receive it as evidence in chief, which they had before so justly rejected. Had the counsel of the plaintiff stated the design with which it was then offered, I cannot think the counsel of the defendant would have objected to it, or the court sustained the objection. But nothing of this appears, either in the offer, or in the opinion of the court; and, therefore, being evidence for some purpose, it was admissible. No doubt, but Wilson and Turner spoke of the same line, and of the same transaction. It is for this reason alone the judgment is reversed, and reluctantly reversed; for I cannot yet discover how the line run by Turner could change the position of the survey, in the name of West. Yet, as both parties went into evidence of that line, Turner’s deposition was made evidence in consequence of the testimony given by Wilson, the defendant’s witness.

The court very properly rejected the survey of Adams, and of previous surveys, not made at the same time, nor in any manner connected with the chain of surveys made for Colonel Miles, and as properly agreed to admit Diehl’s and O’Neal’s, for the reasons given by them.

judgment reversed, and a venire facias de novo awarded.  