
    KERSHAW DISTRICT,
    SPRING TERM,
    1801.
    Kent v. Carwell.
    A deputy surveyor derives Ms authority, for the survey of vacant lands, from the appointment of the surveyor general for the time being, who is responsible for the conduct of Ms deputies ; and a caveat lies to prevent the emanation of a grant founded upon a survey made by a surveyor, who had not such an appointment, although he had been appointed by a former surveyor general, and his appointment had never been revoked.
    Caveat. Carwell’s location warrant was dated 12th August, 1797, and his survey was made the 17th of the same month. Kent’s warrant was dated the 19th August, 1797, and his survey was made the 22d. It appeared, at the trial, that Kent’s survey had been duly made by a lawful deputy surveyor, whereas that of Carwell had been made by one Bredin, who had formerly been deputised, by the surveyor general then in office, immediately after the American revolution, but who had not been deputised or commissioned by the officer who was the surveyor general of the State at the time when this survey was made, and certified by him. The surveyor general, Waring, testified, that it had never been customary for the surveyor general, upon coming into office, to re-appoint and íenew the deputation of his predecessor’s deputies; but they were recognized as deputies, and suffered to act as such, until especially ordered to the contrary: and that Bredin had always been considered by him, and his predecessors in office, as a deputy surveyor, and had acted as such ; and that his bond, formerly given, was considered as continuing in force.
    The counsel for Carwell insisted, that this evidence was conclusive ; and that the evidence and acknowledgment of the surveyor general, recognizing the act of Bredin, confirmed and established the survey by him, which survey being the eldest, entitled Carwell to a grant, in preference to the caveator, Kent.
    On the other side, it was contended, that the survey made by Bredin, was not authorized by law, being made by a person not intrusted with the execution of such, business, and, therefore, could not entitle Carwell to any advantage to be derived from it. That the act of assembly of 1784, P. L. 335, gives to the surveyor general full power and authority to appoint such and so many deputy surveyors in each district as he may judge proper, not exceeding so many, for whose, conduct he shall be responsible, both to the State and the party aggrieved, and makes it necessary that such deputies shall be sworn in office! Now, in this case, it was insisted, that the surveyor general, Waring, was riot accountable to the public for any misconduct, as a surveyor, practised by Breden, for he had never deputed or commissioned him ; and it was equally clear, that Bredin was not accountable to Waring, for he had never come' under any engagement to him to that end ; and that the bond given to a former surveyor general could not oblige Bredin, or his sureties, beyond the original scope and intention. And also, that the deputation of the former surveyor general could give no official authority beyond the extent of the authority which gave the deputation; and that the moment the principal went out of office, the same moment Bredin’s power to act as deputy surveyor, derived from that commission, became functus officio, and extinct : and that the verbal or tacit assent of a subsequent surveyor general, to his acting as his deputy, by recognition of his former deputation, was insufficient and invalid, and conferred no power to survey and certify, as a lawful officer.
   By the court.

Johnson, J.

The custom which has obtained, as has been given in evidence by the late surveyor general, is not founded" in law, and cannot receive the sanction of this court. It is a very absurd thing to say, that every deputy surveyor, formerly appointed, shall be lawfully entitled to act as such until specially forbidden. The surveyor general is made expressly liable for the conduct of every one who shall act as his deputy, and, therefore, he ought to know who are his- deputies. He ought to have' the c^°’ce an!^ appointment of them ; and they cannot be his deputies unless he actually appoints them. And he ought to take bond and' security from them ; and to administer to them, respectively, the-oath of office. It is clear that Bredin, in this case, acted without c ’ ’ any lawful authority. He had no commission from the surveyor general, that then was, to survey and certify the land and plat in question, and in doing so, he assumed a character that did not belong to him : and, therefore, I am of opinion, that the survey, plat} and certificate; cannot authorize the issuing of a grant for the land to Carwell, who ought to have taken care to procure the due and lawful execution of his • location warrant, by a lawful officer duly qualified, and not by an imposter. If the grant had actually issued to Carwell, I should not think this court had any power to overset the grant; and evidence to impeach its validity on this ground, would not be admitted. But this is a proceeding in a court of caveats,, in which the regularity and validity of the survey, plat, and certificate, pomes properly in question, in order to ascertain which of these parties is entitled to a grant for the land in dispute; the objection, therefore, is properly taken, and must prevail.

Brevard and Falconer, for the caveator. Brown and Perkins, for the caveatee.

Judgment in support of the caveat.

These proceedings being fully certified by the clerk of Kershaw district court, under the seal of the court, and the grounds upon which the court decided in favor of Kent, to the secretary’s office, the-grant was made out and passed to Kent.

See act of Assembly, 1785. P. L. 394. Act of Assembly, 1791. 1 Faust, 166.  