(Light v. Woodside.)

below, the court refused to charge the jury, that a survey having been made and returned on John Light's warrant, whether it was accepted or not, no other survey could be made without the order of the board of property: but charged that when a survey was made and rejected by the surveyor-general, and the owner acquiesces in such rejection, the deputy surveyor may make another survey without a new order.

Douglas and Fisher, for the plaintiff in error, insisted on this as an error. When a survey has been made and returned, the authority vested in the deputy is executed and no new survey can be made without a new authority from the surveyor-general or board of property. In Deal v. M'Cormick, 3 Serg. & Rawle, 349, 350, DUNCAN, J. says the warrant by the survey and return is functus officio, the command of the surveyor-general has been obeyed: the power of the deputy is at an end: that such has been the course of decision, and that when the survey has been completed on the ground, a new survey cannot be made without new directions. And the court held such subsequent survey void. The same principles are declared in Smith v. Fultz, 4 Serg. & Rawle, 473, and Healy v. Moul, 5 Serg. & Rawle, 181.

Elder, contra, contended that by the rejection of the surveyorgeneral the warrant was rendered void, and a new survey might be made as a matter of course. It is at any rate too late for the plaintiff to make this objection now, when the survey of Hollingsworth has been accepted and patented. The acceptance of a patent was a confirmation of the act of Hollingsworth in making the survey. This survey was made with the consent of the persons holding both the warrants, and no other persons were concerned. The survey of Galbraith was never returned. The return was not received in the office. Then the first survey being a nullity, the patent granted on the second survey was sufficient evidence that that survey was made by a person having full power.

The opinion of the court was delivered by

TILGHMAN, C. J. (After stating the facts.) Broadhead, who was appointed surveyor-general, on the 3d November, 1789, (on the death of John Lukens,) conceived that he had a right to reject the survey of Galbraith, which was made before he had appointed him a deputy. Whether the law was so, or whether John Light had a right to insist on the acceptance of the survey made by one who was de facto deputy surveyor of the district, and many of whose returns of survey had been accepted, is not now the question. He did not insist on it, but acquiesced in the rejection. But the difficulty on the trial of this cause was, that the survey of Hollingsworth was made without any new order or authority from the surveyor-general. The law, in general, undoubtedly is, that a survey having been once returned, no other survey can be made, on the same warrant, without a new order. And therefore, it is clear, that if a third person had appropriated the land, before the survey made by

(Light v. Woodside.)

Hollingsworth, he would have held it. But that is not the case. When that survey was made, the land was vacant, unless included in Adam Light's survey. But Adam Light disclaimed it. The survey for Wingate was made in his presence, and with his approbation. When Hollingsworth made his return, I will not say, that it might not have been rejected. But it was accepted, and afterwards a patent issued on it. Under these circumstances, Adam Light's mouth is closed against any objection, nor ought the commonwealth to take advantage of a defect, which has been overlooked by its superior officers. Every thing substantial has been done. A survey has been made by the deputy of the district; this survey has been accepted, the purchase money and fees of office paid, and the title confirmed by patent, and all this, without intefering with the right or claim of any individual, except Adam Light, who assented to the survey, and encouraged the purchaser to make improvements. It has not been shown, that in such a case, this court has ever decided against the title of the patentee, and I think it ought not. I am of opinion, therefore, that there was no error in the answer given by the President of the Court of Common Pleas, to the questions proposed by the plaintiff's counsel, and the judgment should be affirmed.

Judgment affirmed.

[LANCASTER, May 26, 1823.]

STOEVER against WEIR.

IN ERROR.

A special plea of fraud and covin to debt on a single bill, is in nature of a special non est factum: and if the plaintiff reply to such plea, that it is his deed, on which issue is joined, and a verdict given for the plaintiff, the judgment is regular.

ERROR to the Court of Common Pleas of Lebanon county. Debt by Thomas Weir, the plaintiff below, against Adam Stoever, the defendant below, and narr on a single bill for the payment of £53. The defendant pleaded, that the said writing in the said declaration mentioned, was obtained from the said Adam Stoever, by the said Thomas Weir and others, in collusion with him, by fraud, covin, and misrepresentation; that is to say, by the said Thomas Weir, and others in collusion with him, the said Thomas Weir, falsely and fraudulently representing to him the said Adam Stoever, that the said writing obligatory, was a receipt for the payment of money by the said Thomas Weir to a certain Thomas Brooks, and the said Thomas Weir in collusion with others, falsely and fraudulently requesting the said Adam Stoever, to sign the

(Stoever v. Weir.)

same as and for a witness, that the said money was paid by the said Thomas Weir to the said Thomas Brooks, and in confidence of such representation, the said writing obligatory was executed, to wit, at the county aforesaid; wherefore, the said Adam saith, that that writing was and is void in law, and this he, the said Adam, is ready to verify, wherefore he prays judgment, if he ought to be charged with the said debt by virtue of said the writing, &c.

And the said Adam Stoever, for further plea in this behalf saith, that he ought not to be charged with the debt aforesaid, by virtue of the supposed writing obligatory aforesaid, because he says, that the same was obtained from him, the said Adam Stoever, by the said Thomas Weir and others by fraud, covin, and misrepresentations, to wit, at, &c.: wherefore the said Adam saith, that the said writing in the said declaration mentioned, was, and is void in law, and this he, the said Adam, is ready to verify. Wherefore, he prays judgment, if he ought to be charged with the said debt by virtue of the said writing, &c.

The record then contained the following entries:

"Replication that it is his deed. Issue and rule for trial." The Jury found a verdict for the plaintiff, and judgment was entered thereon.

The error now relied on was, that no issue was joined in the

cause.

Wright, for the plaintiff in error, insisted that there was no issue joined in the court below, and therefore, the verdict and judgment were irregular. Admitting that the defendant might have pleaded non est factum, and given in evidence the matter specially pleaded, yet he did not plead non est factum, nor is the plea so to be considered. The rule is, that where the matter of the plea confesses the cause of action but avoids it, the defendant may plead specially, though he might have given it in evidence. 5 Bac. Ab. 372. Cro. Eliz. 871. Salk. 344. Ld. Raym. 87. 1 Chit. 478, The plaintiff, therefore, in his replication was bound to answer the facts set forth in the plea, and the replication that it was the defendant's deed, was no answer, and formed no issue.

479.

Weidman and Norris, contra, contended, that the defendant's plea amounted to non est factum, and the word "issue," was equivalent to an order to the prothonotary to make up the issue. This, by the 62d rule of the court below, he was authorized to do, if there had been no replication. But the matter stated in this plea, if true, rendered the deed void ab initio, and was evidence on non est factum. 1 Chitt. 478. The plea was, therefore, in effect, non est factum, and was so considered by both parties in going to trial. The replication was, therefore, appropriate, and the issue regularly joined.

Wright, in reply, admitted, that if no replication had been put in, the prothonotary might have entered a replication, and joined issue: but here a replication was put in, and therefore, the prothonotary had no power to act,

(Stoever v. Weir.)

The opinion of the court was delivered by.

TILGHMAN, C. J. This is an action of debt on bond, in which Thomas Weir, the defendant in error, was plaintiff in the Court of Common Pleas of Lebanon county. The defendant pleaded a special plea, alleging fraud in the plaintiff, in consequence of which, the bond was void, and concluded with a verification. The plaintiff replied, "that it was the deed of the defendant;" and thereupon, issue was joined, and the jury found for the plaintiff. The error assigned is, that no issue was joined, a most ungracious defence after trial of the merits. In order to facilitate the trial of causes, there is a rule of the Court of Common Pleas, by which, upon a plea entered, the prothonotary may of course put the cause to issue, and enter the proper replication, and other pleadiugs for that purpose; provided that the act of the prothonotary shall not prejudice either of the parties-each party shall have it in his power to enter other pleas, or demur, giving notice in writing to the adverse party, at least 10 days before the trial." Now, by virtue of this rule, if there had been no replication the prothonotary might have put the cause to issue. This the defendant confesses, but says, that inasmuch as the plaintiff put in a replication for himself, the prothonotary had no power to act in the matter. It is clear, however, that both parties considered the cause as being at issue, and went on to trial. And it is our opinion, that it was substantially at issue, because the defendant's plea is in nature of a special non est factum, and might have concluded, and so it is not his deed--then when the plaintiff replied, "that it is his deed," and issue was joined, we will consider the plea in the same light that both parties considered it, that is, as a plea of non est factum. It is the opinion of the court, therefore, that the judgment should be affirmed. Judgment affirmed.

[LANCASTER, MAY 26, 1823.]

REIGART and another, Terretenants, against ELLMAKER, President of the Orphans' Court of Dauphin County, for the use of ALRICKS, now for the use of WILLIAMS.

IN ERROR.

An act of the vendor after selling lands, is admissible in evidence to explain the whole of a transaction, respecting which, the opposite party has given partial evidence.

An assignment of the cause of action after action brought, is admissible in evidence, where it is referred to in the record, and the jury are sworn in the name of the cestui que use, as plaintiff.

ERROR to the Court of Common Pleas of Dauphin county, in a scire facias, brought in the name of the plaintiff below, Amos Ell

(Reigart and another, terretenants, v. Ellmaker, President of the Orphans' Court of Dauphin County, for the use of Alricks, now for the use of Williams.) maker, President of the Orphans' Court of the county of Dauphin, for the use of James Alricks, now for the use of James Williams, against Daniel Reigart and Nicholas Sweyer, terretenants of a brick house in Harrisburg, defendants below, and plaintiffs in error, in which a verdict and judgment were rendered in the court below, in favour of the plaintiff.

The scire facias was on a recognizance, entered into by John Kean, who intermarried with a daughter of John Hamilton, deceased, who died intestate, to secure the payment of the shares and purparts of the children, out of the premises taken by the said Kean, at the appraisement, under a decree of the Orphans' Court, among which was this house. Kean transferred the house to Henry Orth, under whom the defendants claimed, in July, 1806. This scire facias was originally brought by James Alricks, who married one of the daughters of the intestate, for her share, and was subsequently assigned to James Williams, and in the action entitled Alricks for the use of Williams, the jury was sworn. The parties went to trial, on the plea of payment, with leave to give the special matters in evidence.

There was no attempt to prove a direct payment. Other estate of the intestate had been taken by several of his children. Alricks and Kean took one estate, and Alricks alone, another in Mifflin county. Kean likewise took a farm in Dauphin county, valued at £3,725, part of which he sold to Mr. Fisher; the residue was sold by the sheriff, as the estate of Kean, at the suit of Moses M' Lean, who had married a daughter of the intestate, and had obtained a judgment for his purpart out of the tract. A feigned issue was directed by the Court of Common Pleas to ascertain what was due on the recognizance binding this tract, to each of the distributees; in which Alricks was made a party. He disclaimed of record, and disavowed the authority to make him a party.

The defendants on the trial in the court below, contended, first, that Alricks had permitted this property to be sold without any notice to the purchaser. Second, that he and Kean took land in Mifflin, and he conveyed his interest to Kean. Third, that he released to Kean all his interest in the farm in Dauphin county. Fourth, that suit was brought by Mr. M'Lean, for his wife's distributive share in the farm, and Alricks disclaimed on record, all interest in that recognizance. The defendants, after giving a variety of evidence, gave in evidence the record of the action brought by M'Lean against Kean, the feigned issue, and the disavowal of Alricks. This action was brought to May, 1812: the feigned issue was entered of May, 1818. The plaintiff then gave in evidence a release of the 26th October, 1806, from Alricks to Kean, of all the Dauphin tract, and offered a letter from Kean to Alricks, dated in 1805, requesting him to release his interest in the land sold to Mr. Fisher, as he would not pay the purchase money with