
    Lessee of Robert Porter against James Ferguson and Abraham Feagley.
    The foundation of a survey must be shewn. A survey once made, a new authority is necessary to ground a second survey.
    The presumption is, that every survey is made with the party’s consent, and shall conclude him, unless there is fraud or improper conduct in the surveyor, and then the complaint must be followed up in reasonable time.
    Ejectment for 139 acres of land on Mingo Creek waters.
    The plaintiff claimed under an entry made by Francis Hull, of 400 acres on Monongahela river, with the Virginia commissioners on the 13th November 1779, on which a survey was made by Nevil and Ritchie of 269 acres and 136 perches, striet measure, on the 4th July 1785. .The plaintiff set up another survey of 139 acres made by Thomas Stokely, and which he alledged was founded on a warrant of re-survey, or order of the board of property, but which were not produced.
   The court said, that no benefit could be derived under the latter survey, unless by shewing the warrant or order on which it was grounded. A survey having been once made, a new authority became indispensably necessary to justify a second survey. The legal presumption is, that the first survey was made with the full consent of the party and shall conclude him, unless *fraud or improper conduct can justly be ascribed to the deputy surveyor; and in such case the complaint must [*61 be followed up in a reasonable time. His laches will otherwise postpone him. These principles have been often laid down, and conduce to the peace and safety of the country. They were delivered particularly in the cases of Drinker’s lessee v. Holliday, and Hollingshead’s lessee v. Pollock, tried at Huntingdon, May assizes 1796, and cannot be departed from.

Cited in 3 S. & R. 350 in support of the decision that after a survey made and returned into office, a second survey, without an order of the board of property, is merely void. Cited for the same purpose in 43 Pa. 202.

Messrs. Pentecost and T. Campbell, pro qticr.

Mr. Simonson, pro def.

The plaintiff suffered a nonsuit.  