
    Lessee of James Armstrong, John Armstrong and Thomas Duncan against Isaac Morgan.
    Letter from the secretary of the land office to the deputy surveyor, to make a survey, if lost and no memorandum of it to be found in the land office, maybe proved by parol evidence.
    Oil a vague warrant or location, the title vests from the time of survey; but on shifted ones, not until the return of survey, unless the adverse party knew of the survey, prior to the commencement of his right.
    Ejectment for 500 acres in Shirley township.
    The plaintiff’s counsel stated, that his claim depended on a written order signed by Richard Peters, esq. directed to col. John Armstrong to survey for George Croghan, esq. 4000 acres on Aughwic, Juniata and Dunning’s creek in 1761, whereon three surveys were afterwards made in November, in the same year; that one of the said surveys was appropriated to Jeremiah Warder and company, one other to George Ross, and the last to the said John Armstrong including the lands in question, for which a warrant of acceptance issued to him on the 8th March 1774. That the said written order was afterwards burnt in the house of col. Armstrong in 1763, but the survey so made, was recited in a patent, dated 19th October 1773 granted to James Foley under the claim of Warder and Franks, “ to- have been “ made by the consent and direction of the proprietaries for “ George Croghan.” And after shewing the said warrant of acceptance and patent, they offered to prove the contents of the said written order by parol evidence.
    The defendant’s counsel admitted, that the destruction of col. Armstrong’s house was a known fact, but contended, that it was of great consequence to establish an authority to survey 4000 acres of land by oral testimony. Some traces must remain in the land office of the instructions whereon the written order was founded, or some memorandum thereof, which ought to have been produced. Besides the warrant of acceptance states that the “survey was made at the request of George Croghan “about ten years before, but without a warrant.” If the secretary’s letter had been the ground on which the survey was made, it would have been so recited. Here the defendant claims under an actual settlement of the lands made in March 177L
    The plaintiff’s counsel offered to shew that the land office had been searched, but no vestiges of the written order could be * -i *found, and cited 1 Dali. 6. This the defendant’s counsel •>3 1 dispensed with.
   By the Court.

The objection made goes rather to the operation of the evidence offered, than to its admissibility. The great rule of evidence is, that none shall be admitted, which supposes superior evidence behind in the power of the party. Gilb. Law Evid. 16. Bull. 289. If an instrument be lost, after proving that it did once exist, it may be proved by a copy, or if there be none such, by witnesses viva voce. 2 Equ. Cas. Ab. 409, 410. The law for necessity admits that, which of all things it most abhors, parol evidence of deeds. Even the copies of records which have been lost, may be given in evidence, though not proved to be true copies. It is admitted, that all the official papers of col. Armstrong were burned in 1763, and this order must be presumed to have been amongst them. The land office has been searched, and nothing remains in the plaintiff’s power except the parol evidence offered, which ought to be received, and its operation weighed dispassionately.

In the course of the argument, Mr. Walker for the defendant insisted, that the order to survey the 4000 acres being indescriptive, the legal right did not vest until the return survey; and it had been so determined at Sunbury in Funston’s lessee v M‘Mahon, October 1797.

Explained and distinguished in 3 Binn. 181.

Cited in 43 Pa. 203 to show that it never has been held that the holder of an in-descriptive warrant acquires any interest in land, even by relation, until his warrant has been located by a survey. Until then, such warrants give no title to land whatever.

Messrs. Duncan and Watts, pro quer.

Messrs. Hamilton and Walker, pro def.

Yeates, J.

That case is perfectly familiar to me. The applications on both sides designated other lands, than those in dispute. The members of the court disagreed in opinion. M'Kean, Chief Justice, held, that until the warrant of acceptance issued no right vested in the party on a shifted application. I thought, that the return of survey was prima facie evidence of its acceptance, and I still adhere to that opinion. But it has always been understood, that on an indescriptive location, wanting precision in its terms, the interest vests from the time of survey.

Smith, J.

Such has been the invariable rule on vague warrants or applications. On shifted locations, the title does not vest until the return of survey into the surveyor general’s office, unless the owner of the adverse title had notice of the survey prior to the commencement of his right. And so have been the different adjudications, that I know of.

Verdict, pro quer.  