Snavely v. M'Pherson & Brien , 5 H. & J. 150 ( 1820 )

Chase, Ch. J.

delivered the opinion of the court. Without deciding the question, whether the notes of the survey- or could be received as the declarations of the surveyor, who is dead, on being proved, the court are of opinion that the notes in this case are not official acts, and can derive, no additional power or efficacy by being annexed to the certificate; being offered as the private observations of the •surveyor, his hand writing must be proved; and proof of the certificate is no proof' of the hand writing of the surveyor, as to these notes. They cannot be considered as papers, copies of which can be received as evidence under the act of assembly of 1812, ch. 82.

JUDGMENT REVERSED.

Then follows the certificate of survey of The Resurvey on Hills and Dales and the Vineyard, dated the 8th day of August 1763, and signed “Pr. John Murdoch.” Annexed to, and on the back of the aforegoing certificate, is as follows, viz. “This resurvey is confined as follows, viz. From the beginning to number 4 joins Ward’s Spring. From No. 4 to 9 joins Elswich’s Dwelling,” &c. &c. “From the end of the 128th to the beginning joins Addition to Ward’s Spring. J. M.”

To this commission and return, and the evidence taken Under it, being read to the jury, the defendant; by his counsel, objected; but the court, \_Buchanañ, Ch. J. and Shriveri A. J.] overruled the objection, being of opinion, and so directing the jury, that the same was competent evidence to go to them, not to elongate or shorten any of the lines of the certificate or patent issued for The Resurvey on Hills, Dales and the Vineyard, or in any manner to alter or change the position of the land as described in the grant, but as the declarations of a person or persons now dead, of the place where the lines of the land, as expressed in the certificate and patent, did originally run. To this opinion the defendant excepted; and the verdict and judgment be--' ing for the plaintiffs, he appealed to this court, where the cause was argued before Earle, Johnson and Dorsey, J.

Stephen, for the appellant,

relied on the act of Nov.-1781, eh. 20, s. 14, and Guppy vs. Brown, 4 Ball. 410.

Taney, for the appellees,

cited The State vs. Leny, 3 Harr. 8f MiHen. 591. Bidgely’s lessee vs¡ Ogle and Leonard, 4 Harr, fy MLIen. 126.

Earle, J.

delivered the opinion of the court. A cominission to take testimony, executed in the District Of Columbia, and returned by the commissioner therein named, with the evidence taken under- it, were read by the plaintiffs ill the court below to the jury,- in the trial of this cause, and an objection was made by the defendant to the competency of the evidence; who contended that the commission and testimony under it ought not to be received as such.The court below thought they were legal evidence,- and expressed an opinion, that the testimony could be Used as the declarations of a person or persons then dead; of the place where the lines of the land expressed in the Certificate of survey and patent did originally run, but could not be used to elongate or shorten any of the lines, orto alter or change,in any manner, the position of the land as described in the grant. In this opinion the court entirely coincide. It has been heretofore decided by this court, that notes or memo1 randa endorsed by the surveyor, or others-, on a certificate of survey returned into the land office, make no part of the certificate, and that an Office copy of such endorsements is not competent evidence. Thus stript of official consequence,- the court cannot perceive that any dangerous use Can be made of these notes or memoranda, especially when it is proposed to restrict the use of them-, and not suffer them to be-applied to decisive purposes in elongating or shortening' lines; or in altering and changing the position of lands as described in the grant. They are to be considered in' the light of private notes or memoranda, and their being endorsed on an official paper, ought not to prevent a party from using them.- They are equivalent to the declarations of persons long made, and who at the trial are dead,- and in this view the court are of opinion they are admissible proof.

The court are of opinion, that there is sufficient appealing in the return of the commission, executed in the District of Columbia, to establish its due execution.

judgment affirmed.