neral v. grantees, I acquiesced then, and am well satisfied now of the correctness of the principles.

rest.

THE litigation which has arisen in regard of original title to real property, in Pennsylvania, has been owing, in a great degree, to the deception of purchasers, and the fraud and negligence of officers intrusted with the carrying grants into effect. The grant, under whatever name, or in whatever quantity, it may have been, was a matter between the proprietaries whilst they continued the owners of the soil, and those to whom they chose to grant. It was in the evidence of appropriation that the community became interested. Had the whole country been a woodless plain like Egypt, a place of beginning marked by a stone or other monument, would have been all that could have been obtained. Courses by the compass, and distance by the chain, must have done the But the variation of the compass and the unavoidable inexactness of measurement, would have rendered the identity of the specific ground appropriated, in length of time uncertain. It was a dictate of good sense therefore, and was of general convenience, the country being a timbered forest, to adopt the expedient of the natural boundary of trees, marked, as a corrective where they could be found; and when these so marked can be ascertained, they are always to govern. The instructions from the surveyor general to his deputy, from the earliest period, were to go upon the ground and run the courses and distances, and mark the trees. But as in this case the trouble of going on the ground and the expence of paying chain carriers, and a marker of the trees, and of provisions furnished for these, must be incurred by him for whom the survey was made, there was a temptation to dispense with the going on the ground; or the actual running, and marking the boundary trees. But more frequently the surveyor himself intrusted to make the survey as officer and as agent, took it upon him to dispense

with going on the ground, and made the survey on paper merely. This he could do, by stating a beginning on some other survey actually made, and taking the courses and distances of that survey, or part of them, for the courses and distances pretended to have been now run. His temptation to do this, was the saving himself trouble, his fees being charged the same as if he had gone upon the ground. A neighbour wishing to appropriate, or informing one who wished to appropriate, knowing there had been no surveyor on the ground, or boundary tree marked, would speak of this land still vacant; nor would the return to the office of a survey, on this ground, give him information of which he could reasonably take notice; because there having been, in fact, no survey made on the ground in question, he must conclude it to be some other ground, on which the survey was made. And here sprung the first error of our courts of justice in sanctioning a survey where a conflicting claim came in question, which had not been made by going on the ground, and actually running the lines. These were the directions of the proprietary office for the granting lands, and where this was not done, it must be the fault of the grantor, or the fraud of the officer, and the ground ought not to have been considered as yet legally measured off; but as belonging to the unappropriated mass, and liable to be disposed of to others. For though the officer must be considered as the agent of the proprietary the grantor of the soil, yet he must be viewed also, in the light of the agent of the grantee and as against whom as agent, the grantee has redress by complaint to the principal, or by action at law against himself. His acts to a certain extent must be considered as the acts of the grantee; and third persons, innocent, bona fide purchasers, ought not to be affected by the irregularity of carrying a grant into effect according to the implied or known terms of the contract. Where it becomes a wrong to others; that is the occasion of their taking the same land as unappropriated, this wrong ought not to be taken advantage of by the authors of it. It is contrary to the maxim.

But the irregularity was not only in not going on the ground to run the courses and distances, according to the instructions of the office or the authority of the warrant, and taking for boundaries, the surveys of others made at other times, but in taking up the courses and distances made under a different warrant returned afterwards on a survey not on the ground for which it called; or courses and distances run with a view to a warrant that might be taken out, and which when taken out was returned as made at a date subsequent to the date of the warrant, and with which date the marks on the trees would not correspond; and which the testimony of the vicinage would refute having knowledge of the time when the survey was actually made. Notoriety of appropriation is a great object; and it was the act in pais the carrying the grant into effect by actual admeasurement, and laying off by marks that even the unlettered could read, that was in the view of the owners of the soil, and ought to have been regarded by every purchaser. The neglect of this, or omission, was a legal fraud upon the public who had an interest in the notoriety of appropriation. For the proprietary William Penn, took his charter subject to an implied condition of settlement. For this is not only the object of all colonization; but it is held out in the charter as the object of the grant, "the enlarging the English empire, and promoting useful commodities." This from the preamble of the charter; and again in Sec. 5. "that this new colony may more happily increase by the multitude of people resorting thither, we for us, our heirs and successors do give and grant by these presents, power, licence and liberty unto all liege people and subjects both present and future of us, our heirs and successors, excepting those who shall be specially forbidden to transport themselves, and families to the said country," and doubtless the proprietaries under this charter, had this object honestly in view, because, if from no other reasons, their interest was connected with it. Every purchaser had an interest in the population of the country; for the improvement of the settlement was the improvement of his individual farm. Every stroke of an axe struck by his

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neighbour, in clearing the country was half a stroke for him. Could any thing more effectually defeat the object of the crown in granting, or of the proprietary in tak ing the charter; or of the purchasers interested in the improvement of the country, than irregularity in the appropriation, defeating the notoriety of it, and misleading settlers. It was a monstrous evil, and the judiciary at an early hour ought to have set their faces against it. The proprietary board of property did; and I take it that, in the examination of their proceedings, it will appear that in general they discovered a willingness to save an applicant from the wrong likely to be suffered, either in his settlement, or warrant from a want of notice of what purported to be a prior appropriation, but which had not been regularly carried into effect. Be that as it may, the commonwealth succeeding to the ownership of the soil, would seem to have had their attention drawn to these irregularities which had prevailed, and to the mischiefs of them. For by an act of 1785, entitled an act to provide further regulations whereby to secure fair and equal proceedings with the land office, and in the surveying of lands, Sec. 9. 3 Dall. 316, it is provided that "every survey hereafter to be returned into the land office of this state, upon any warrant which shall be issued after the passing of this act, shall be made by actual going upon and measuring of the land, and marking the lines to be returned upon such warrant, after the warrant authorising such warrant, shall come to the hands of the deputy surveyor to whom such warrant shall be directed, and every survey made theretofore, shall be accounted clandestine, and shall be void, and of no effect whatever," and every deputy surveyor, upon request to him made, shall give a receipt in writing, signed by him, to the person delivering any warrant of survey; in which receipt shall be set forth the day and year when, and the order in which the same warrant shall have come to the hands of such deputy surveyor, and also the grantee's name and surname, and the number of acres to be surveyed thereon, and also the number of the same warrant."

The mischiefs that did exist before the passing of this act, were the not going on the ground and marking the lines by which act in pais there could be notice, to the whole community; but returning a survey as marked which in fact was not marked; but what was an equal mischief, the taking a survey that had been made under another warrant, or under no warrant, and returning it as marked of the date purporting to be surveyed; which would be contradicted by the marks upon the ground, and the testimony of the vicinage; and to give this act a construction according to the rules of construing statutes, the most in advancement of the remedy of these mischiefs, it would seem reasonable to extend it as avoiding all surveys not made by going on the ground, and marking the trees, but at least it must be construed as avoiding all surveys made before the warrant came ta hand, even though the survey had been upon the ground. If a special return were made on such a warrant stating a`return on a survey made for another purpose, could it be received in the face of this act? Is not a general return therefore concealing the fact; or rather stating what was not a fact, a deception upon the office, and an evasion of the law? I would take it to be in contemplation of law a fraud however unintended by the officer or the warrantee for whom the survey was made.

There are circumstances under which the warrantee would have an interest over and above the saving expences of a survey, in having it returned upon the old lines actually run for other purposes, unless indeed the warrant was so special in the description as to amount to a designation equal with a survey, and by that description to attach from the grant. For in the case of a warrant, not specific, it might be an object to give it a bed as soon as it existed, and before there could be time to survey it actually; and this, to exclude the laying other warrants perhaps prior; or settlements which might be made before the officer, with chain carriers and provisions could get upon the ground, and we know races against time have not been uncommon to get the return of a survey made. I do not mean to say that we shall presume fraud;