
    *Lessee of James Steel and Agnes his wife, late Nelson late Lathan against Andrew Finley, Alexander Turner and William Milligan.
    Where one defendant in ejectment states a special defence disclaiming particular lands, and another defendant who has taken a special defence, gives it up on a trial, the former shall not be at liberty to shew an early adverse right to the lands he has disclaimed.
    A letter from the secretary of the land office, asserting the contents of a paper he had seen, is no evidence of fact.
    If one obtains a second survey on a warrant already filed, he thereby abandons his first survey, if the same was not returned into the surveyor general’s office before an adverse survey is made.
    Ejectment for 140 acres, 3 quarters and 18 perches, in Hopewell township. Special defence taken by Finley.
    The plaintiff claimed under a warrant to Hugh Purdy, dated 5th December 1764, including his improvement in the Barrens, a survey made by William Matthews on the 20th December 1764, and divers mesne conveyances to Hugh Nelson, who devised the same to his daughter Agnes, one of the plaintiffs in fee. She intermarried with David Lathan, and together with him during her minority,.conveyed to William Orr, without any separate examination as the law requires, and a mortgage was taken for the consideration money, which was never recorded. Orr conveyed to Patrick M‘Grille, and he conveyed to Turner, one of the defendants, who leased to Milligan, another defendant, on the 15th March 1789, for two years, he engaging to deliver up possession on the 15th April 1791. Pending that lease, the present ejectment was commenced.
    The special defence of Andrew Finley, excluded a portion of land, which had been cultivated above twenty years by the different persons under whom the plaintiff claimed, marked in the diagram W, containing above 20 acres. He founded his pretensions on two warrants, in the name of his father John Finley, one for 50 acres, dated 1st April 1751 ; and the other for 100 acres, dated 4th April 1754; a survey on the first by Thomas Armor on the 16th April 1752; and a re-survey by William Kersey and William Matthews, in consequence of an order of the Board of Property of the 31st December 1770, made on the 18th November 1774, pursuing the old lines, containing on the first warrant 145 J- acres, and on the last 204 acres, for the said Andrew Finley.
    He also shewed a conveyance from his said father to himself, for the two surveys, dated 4th November 1760, in consideration of 200I., and a subsequent patent to his father for the same, dated 22d August 1788. But it appeared, that on the original warrant of 1st April 1751, John Finley had assigned the same to Thomas Armor on the 4th October 1752, and Armor had assigned the same to the said Andrew Finley on the 27th April 1761. These assignments were made in the hand writing of Armor, and had been attempted to be obliterated, but *they remained sufficiently legible. The lands thus sur- p veyed were called “ Cabrach.” L '
    The defendant Finley also obtained a survey of i20| acres, to be made upon the first warrant on Deer creek (above ten miles distant from the lands in question) by the said Armor, called “Rosemary Meadow,” and that he had indorsed the same 1201-acres on the same warrant to have been returned for Andrew Finley on the 4th May 1765.
    The aforesaid Hugh Purdy had originally contracted with the said Andrew Finley, before he made his improvement, though the particulars thereof, or the consideration, did not appear. Several suspicious circumstances occurred-in this transaction against Finley, that he had not acted fairly by Purdy. The former lived on the adjoining tract for above twenty years, and suffered the different possessors to go on improving, without claiming the premises or molesting them.
    The court observed, that as to the claim of Turner, and Mil-ligan his tenant, there could be no pretence of title, because they held under the plaintiff’s right, and the deed from Lathan and wifq having been established to have been made in the infancy of the wife, though she held in her own right, and she not undergoing a proper separate examination, was void in itself after the death of Lathan, unless it could be proved that she ratified the same afterwards. Mr. Clark, who appeared for Turner and Milligan, gave up their defence at the bar; but Mr. Bowie urged, that he was concerned for one householder, in whom was vested an interest, under a warrant granted to Robert Carr, dated August 1753 ; a conveyance thereon to George Stevenson, dated 21st September 1764, and a survey by him of 152 acres and allowance, on the 27th of the same month; and that any title might be given in evidence to shew, that the plaintiff was not entitled to recover any part of the lands.
   By the Court.

Undoubtedly you may do so if there are proper parties. Finley has disclaimed by Iris special defence the land marked W in the diagram ; but if Carr’s warrant and survey can assist him in the portion he contends for, he can make use of it for that purpose. Turner and Milligan have wisely relinquished the claim by their counsel. Householder we know not. If he wished to contest the plaintiff’s title, he ought to have procured himself to be made a party to the suit. He was in possession of no part of the lands claimed by the plaintiff, when the ejectment was served. Let him bring his new eject*ment for Portion W; for in the present suit the plaintiff *171] must necessarily have a verdict for it.

A letter from William Peters, then secretary of the land office, to Hugh Purdy, dated 28th August 1765, stating, that he had seen and considered the written contract between him and Andrew Finley, dated the 21st April 1762, and advising him that he had a remedy on the special warranty contained therein, &c. was offered in evidence by the plaintiff.

This was opposed by the counsel of Finley, because it was no public document, but written by Mr. Peters as a counsel; and if it even were such, it would be no legal evidence of the fact recited therein.

To this the plaintiff’s counsel answered, that the title of Purdy was devested by a sheriff’s deed, and it could not be presumed that such a purchaser would receive all the title papers; and that the transaction respecting them having been a contract being already established by other proof, an inferior kind of evidence might be received, corroborating the fact. Besides a letter from James Steel, receiver general and secretary of the land office, has been adjudged good evidence. 1 Dall. 6. [That letter was in fact an order of survey, and was usual between 1718 and 1732.]

The court being divided in opinion on this point of evidence, asked the plaintiff’s counsel, if they would agree, in case the letter was received in evidence, and a verdict should be given for their clients, that a new trial should be granted, provided the Supreme Court in bank should consider the testimony as inadmissible. To this they answered, that they could by no means accede thereto. — Whereupon Yeates, J. still adhering to his opinion, that the evidence could not be received on either of the grounds stated, the letter was overruled.

Cited in 3 Binn. 181.

Cited in 14 S. & R. 377 to show that a lost warrant may be laid on any vacant land, and that the owner of an application may shift his ground, and take up any vacant land, provided, nevertheless, that a third person, who has acquired a right of appropriation, shall not be injured.

Cited in 3 Wh. 191 in support of the proposition that if a defendant in ejectment takes a special defence for part only, and another tenant who had taken defence for the residue gives it up on the trial, the first, who had excluded it, will not be permitted to defend or show title as to it.

Referred to in 43 Pa. 206.

Messrs. Duncan, C. Smith and Kelly, pro quer.

Messrs. Bowie, Hopkins and Clark, pro def.

The court, after full argument by the counsel on both sides, gave it in charge to the jury, that for the reasons already given, the plaintiff was clearly intitled to recover the lands marked W. As to the remainder of the lands, they left it to the jury under all the circumstances of the case, who was in default respecting the contract, said to have been in existence between Hugh Purdy and Andrew Finley. The silence and acquiescence of the latter respecting his claim for so long a period, as well at the sheriff’s sale as afterwards, formed a strong presumption against *him. But independent thereof, they laid it down as a clear rule of law, that if a person obtains a second survey [*172 on a warrant which has been once filed, he thereby abandons his first survey, if the same was not returned into the surveyor general’s office, before an adverse survey is made, provided the same was done with his consent or procurement. Every survey shall be presumed to be made with the full consent of the party, unless the contrary appears ; and the circumstances of the present case strongly fortify the legal presumption.

Verdict pro quer.  