
    Hamilton against Menor.
    In Error.
    ERROR to the Court of Common Pleas of Franklin county in an ejectment.
    The plaintiff below, Hamilton, claimed under a warrant, dated ,24th August, 1785, and a survey under the said warrant, made in the year 1785, and returned into the Surveyor General’s office, 14th April, 1786.
    The defendant claimed under a warrant to Andrew Spear for 200 acres, dated 13th June, 1763, and he gave evidence tending to prove, that a survey had been made on the said warrant, although no return of survey was to be found in the Surveyor General’s office. Whether a legal survey had or had not been made was a principal point in dispute. But besides this there were disputes upon matters of law, ou which bills of exception were taken, both with respect to the admission of evidence and the charge of the Court.
    The defendant on the trial offered Christian Study as a witness to prove, that “in the summer of the year 1786, “ Lewis Davis deceased, had shewed him a boundary line “ between Smith and Finley’s land, (the land now in dispute “ and claimed by the defendant under Smith and Finley) and “ his, the said Davis’s tract: and had also shewn him a wal- “ nut tree now standing, and laid down in the general dia- “ gram exhibited in this cause, as a common corner of the “ three surveys made for the said Lewis Davis, Reese Shelby, “and Finley and Smith." The plaintiff objected to this testimony: but it was admitted by the Court, and an exception taken.
    The plaintiff offered in evidence the deposition of William Lyon, taken under a rule of Court, under the following cix‘cumstances. The plaintiff gave notice to the defendant, that Lyon’s deposition would be taken on the 15th July, 1808. On the day appointed, the plaintiff appeared, but the defendant did not. An adjournment took place to the 19th July:' and afterwards several adjournments to the first Monday of September, the 12th September, the 21st September, and the 4th October. On all these days the plaintiff appeared, but the defendant did not. No notice was given to the defendant, except of the time appointed for thefirst meeting: and on the 4th October 1808, the deposition was taken in his absence. The defendant objected to this deposition being read in evidence, and the Court rejected it. The plaintiff took an exception.
    
      It is no objection to giv* ing in evidence the declarations of a person deceased proving a boundary, that an unavoidable implication arises from them proving a survey.
    Notice was given by the plaintiff of taking a deposition. The plaintiff attended: the defendant did not. Several adjournments took place, and the deposition was taken in the absence of the defendant ,and ■without notice to him. Held irregular.
    The Court are not bound to give an opinion on facts. But a refusal or omission to give an opinion on a point of taw requested, and material to the issue* is error.
    
      The evidence being closed, the plaintiff’s counsel requested the opinion of the Court to be given to the jury on the six following points:
    1. That there is no evidence of any survey made on Spear’s warrant by any person who had authority to make a survey.
    2. That there is' no evidence of any act done on Spear’s Warrant: and that what was done, was done not on that right.
    3. That there is not evidence of a complete survey made on any order.
    4. That the prevention of the survey by Baila in 1763, and no attempt afterwards made to make a survey, nor possession taken, till after the warrant and survey of the plaintiff, nor until after 1787, amount to an abandonment and desertion of the claim of Smith, and that in 1785 the state had a right to sell the land and did sell it, and claimed the purchase money from the person under whom the plaintiff claims, and that the plaintiff is entitled to recover.
    5. That if no survey was made from 1763 till after the plaintiff’s warrant, survey, and return, nor possession taken, nor settlement made till after that time, the warrant of the defendant with survey would not protect him against the plaintiff.
    6. That riotic'e given after the taking out the warrant of the plaintiff, can in no way affect him.
    The Court (the president being absent) directed the jury as follows: “ That in the opinion of the Court a warrant did not create a complete title without a survey. That whether a survey had or had not been made, on the warrant of “ Andrew Speari was a matter which the jury would detev«mine on the evidence.” To this opinion the plaintiff excepted. '
    
      Dunlop and Duncan for the plaintiff.
    1. The Court erred in admitting the testimony of Christian Study. It is admitted, that hearsay evidence is admissible as to boundary. But the testimony goes much farther: it goes to establish a survey for the defendant. 1 Peake’s Evid. 9, 10, 11. 12 Vin. 118.
    2. The deposition of- Lyon ought to have been received.
    The adjournments were probably made with the view of giving the defendant an opportunity to appear: but at any rate the plaintiff did his duty in attending punctually, and the fault was entirely in the defendant, in not appearing at the proper day. The defendant is in no worse condition than if it had been taken the first day.
    3. The opinion of the Court was required on several points of law: and the plaintiff was entitled to have it specifically given. Instead of which the Court altogether waved the legal points proposed. They cited 1 Wilson’s Bac. Ab. 529. 2 Binn. 72.
    
    
      M'Culloch and Watts, contra.
    1. The evidence of Study, as to the division line, was evidence of boundary : and, therefore, admissible, though hearsay. We did not wish to prove by him a survey: that had been done by other evidence.
    2. If the deposition had been commenced it might have been continued by adjournment without notice: but that does not appear to have been the case. The adjournments were of no benefit to the defendant, because he had no notice of them. It is possible he might not have attended the first day, because he knew, that the witness would not be examined on that day.
    3. The Court was asked to decide matters of fact, which they ought not to do. The judge is not to decide how the fact applies to the issue. 2 Tid. 783. They cited 4 Binn. 192. M'Kinney v. Houser.
      Lawman v. Thomas.
      
       Keble v. Arthurs.
      
       Drinker’s lessee v. Holliday.
      
       Meade’s lessee v. Haymaker.
      
    
    
      
       It was admitted, that the house of General John Armstrong, the Deputy Surveyor of the district, was burnt in 1763: and that the house of Samuel Finley was burnt in 1781.
    
    
      
       2 Sm. Laws, 190.
    
    
      
      
         4 Binn. 51.
    
    
      
       3 Bim. 26.
    
    
      
      
         2 Sm. Laws, 255.
    
    
      
       2 Sm. Laws, 245.
    
   Tilghman C. J.

(After stating the case.)

1. The first exception was to the evidence of Christian Study. The plaintiff’s counsel did not deny, that in general the declarations of a deceased person as to boundary are evidence : but. they contend, that the evidence offered in this case was not admissible, because it went to prove the malting of a survey for Smith and Finley. This objection is too refined. The substance of the evidence was, that Lewis Davis shewed the boundary, but this could not well be expressed without saying of what land it was the boundary. Undoubtedly a boundary being shewn some implication would arise, that a survey had been made : but this is unavoidable. It is no objection, however, to the evidence of Davis’s declarations. Those declarations are only in proof of a boundary, and if the jury thought the boundary established, the inference of a survey would be drawn directly from the fact of the boundary. The proving of a boundary is one thing, and the consequence of a boundary being proved is another. I am of opinion, that the evidence was proper.

2. The second exception is to the rejection of William Lyon's deposition, taken under a rule of Court. It is alleged by the plaintiff’s counsel, that all the adjournments were made for the sake of the defendant, in order to give him an opportunity of being present: and that the defendant, having neglected to appear at the time first appointed, was bound to take notice of the adjournments : or at least, that he was in no worse con-' dition by the taking of the deposition on the 4th October, than he would have been if it had been taken on the 15th July. This may be true, and yet the proceeding may be irregular. The deposition might have been taken at the time first appointed, because the defendant had notice. But the person, before whom a deposition is to be taken, has no power to adjourn from time to time without consent, and without notice. It may be, that the defendant did not attend the first day, because he knew that the deposition would not be taken. He might know, that the witness was sick, or could not attend, and that, therefore, he might be -absent. I am, therefore, of opinion, that the deposition was not evidence.

3. The last exception is to the charge of the Court. The three first .questions are matters of fact, concerning which the Court were not bound to give an opinion, neither could any exception have been taken, if it had been given: because' an exception lies only in matter of law. The fourth point re» lates to an implied abandonment of the right arising from a warrant. Abandonment is generally a matter of fact; although there may be cases where the- circumstances are so plain and strong, as to authorise the Court to decide it as a matter of law. In the present instance, the question was put to the Court in such a manner as to assume several facts, which they were not bound to take for granted, and therefore they might well decline to give an opinion. The facts assumed are, that there was no attempt by the defendant, after the year 1763, to make a survey or take possession, until after the warrant and survey and return of the plaintiff, nor until after the year 1787. Considering the antiquity of the transaction, these were matters which the Court might very properly refer to the jury.

But in the fifth and sixth points proposed, there was no assumption of facts. The questions were simply of law: and the plaintiff was entitled to an opinion. The Court barely said, that “ a warrant did not create a complete title without “ a survey.” But they were asked, whether, if no survey was made for the defendant from 1763 till after the plaintiff’s warrant, survey, and return, nor any settlement made till after that time, the warrant of defendant with survey would protect him against the plaintiff. They were also asked, whether notice of the defendant’s claim given to the plaintiff, after the taking out of his warrant, would in any way affect him. The defendant contends, that the first of these questions was sufficiently answered, and in a manner favourable to the plaintiff; because the Court gave in charge, that a survey was essential to the defendant’s title. The charge seems rather argumentative than direct. I will not say absolutely, however, what would be my opinion, if the case turned simply on this point: but to the last question no kind of answer was given, although it was pertinent and material. Now its settled, that the refusal or omission to give an opinion requested on a point material to the issue, is error; and I am satisfied, that there will be no certainty in the law unless this principle is strictly adhered to. I am, therefore, of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Yeates J. and BrackenRidge J. both concurred.

Judgment reversed, and a venire facias de novo awarded.  