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and of 270 courses contained in the field notes, which were several years in witness's possession, he left out above one hundred and fifty of them; and the witness afterwards delivered the field notes to John Digges, the patentee.

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the survey was not made until some years after, pro-
vided the warrant had been renewed according to the
But suppos-
practice of the Land Office of Maryland.
ing, as we do, that the warrant did not call for the land
surveyed, the grant to Ross cannot be said to commence
before the time of surveying it, viz. 30th of April, 1762,
and is therefore a mere nullity. We can find nothing
in the articles of agreement between the proprietaries,
to establish a title of this kind, to land in this state
against a person, who, like the defendants, afterwards
acquired a regular title from the proprietaries of Penn-
sylvania, (which, as appears by the report, commenced
in August, 1766,) a new trial was therefore granted, on
the point of fact, whether the land was called for by
the original warrant of 1760.

In the lessee of Thomas Lilly, v. George Kitzmiller, at York, May, 1791, before Shippen and Yeates, Justices, (MSS. Reports,) the case was as follows:

The lessor of the plaintiff grounded his title on a Maryland patent for 6,822 acres, dated 11th of October, 1735, founded on an original warrant for 10,000 acres, dated 1st of April, 1732, which, according to the custom of the Land Office of Maryland, had been several times renewed; also, on a Maryland warrant of resurvey, to re-survey the ancient metes and bounds, correct errors in the first survey, and add contiguous vacancies, whether cultivated or not, dated 15th of July, 1745. A survey thereon of 3,679 acres, made in October, 1745, and a patent, dated 18th of October,

1745.

It appears to us there is a failure in the plaintiff's title in this early stage of it. Under the practice in Pennsylvania, of making proprietary surveys, trees are marked on the ground, and where there are no trees, or natural boundaries, artificial marks are set up to distinguish the survey. By these means, if the surveyor returns a d aught, different from the courses and distances actually run, the mistake is easily corrected. Should the surveyor commit an error in his return, it shall not affect the right of the party. Such cases have frequently happened.

He also relied on the two agreements of the proprie. taries of Maryland and Pennsylvania, the first dated May 10th, 1732, under the 11th article whereof, "Persons holding lands under either of the proprietaries, though beyond the division line of the two provinces, were secured and quieted in their rights and possessions," and the order in council made in pursuance And the second thereof, on the 25th of May, 1738. agreement on the 4th of July, 1760, under the proviso whereof, it was declared, that "nothing therein contained should be construed to extend to the respective grantees, or those claiming under them," and deduced his title to both patents, under a will, and divers mesne conveyances and descents.

But the case is very different under the ancient practice of making surveys under the proprietaries of Maryland. Such surveys were merely ideal, and precisely fixed on paper alone. No trees were marked except the beginning boundary. Lord Baltimore's instructions, which have been read, clearly show us, what his intentions were, and that he was concluded only by the The defendant's title rested on a warrant to Martin courses and distances returned. The survey was amKitzmiller, for 150 acres of land, including his improve-bulatory, not confined to a certain spot of land, but was ments, from the Land Office of Pennsylvania, dated 5th governed by the variation of the compass, and was of February, 1747; a survey thereon of 164 acres, made continually shifting. The courses and distances return30th of May, 1759; a patent dated 17th of September, ed formed the survey, and determined on an exact 1759; and a conveyance from the patentee to him. It admeasurement, the particular lands granted, as often was proved that the defendant and his ancestor had as they were run. been in possession of the lands in question since the were binding on the proprietor, and consequently on year 1738, or 1739. It was admitted on both sides, that his patentee. It necessarily follows under our idea, the temporary line between the two provinces, was run that as the testimony of witnesses, or any other circumin 1739-the final division line run by Mason and Dixon stances shown in the cause, cannot establish a title to was completed in 1767, and that the proclamations of lands without the limits of the original survey as returned, that the plaintiff must fail in the present suit. the respective governors issued in 1774.

Those courses and distances alone

The lands in possession of defendant were thus thrown out of the returned survey, but were included in the resurvey, which was said to have corresponded with the lines originally run upon the ground.

There was much other testimony, but not material to the point now under consideration.

The court in their charge to the jury, said, in substance, as follows: The lands in dispute lie four miles north of the boundary line between the States of Pennsylvania and Maryland. Independent of the proprietaries' agreements, lord Baltimore could have no right to grant lands beyond the limits of his province. Whatever, however, was granted by either proprietor, though beyond their respective limits, before the royal order in 1738, was secured to the settlers by their mutual agreement, but the subsequent agreement of 1760 could not affect the rights of persons claiming under either proprietor, previous thereto. The great question in this cause is, whether the first survey included the lands now possessed by the defendant.

The instructions of lord Baltimore to Charles Carrol, his agent, dated 12th of September, 1712, were also given in evidence on the part of the defendant, whereby the mode of assigning warrants was pointed out, and wherein he directs, that in each survey, the boundary tree alone should be marked, and the courses and distances specified in the return of survey, as the fairest mode, and best calculated to prevent civil suits!

We mean, however, in thus giving our opinion, which we have taken some pains to form, to confine ourselves It is not intended to to the express case before us. affect other rights. Persons who have bought lands from plaintiff, even within the resurvey, may have acquired titles by their possessions and improvements, which should not now be shaken. The plaintiff suffered a nonsuit.

PART II.

previous to the year 1765.

With an intention to show fraud or mistake, in the deputy surveyor, it was proved by an ancient witness, that the deputy surveyor did not return the first survey of the ancient practice and customs of the Land Office, as actually made by him on the ground; that the quan. tity of 10,000 acres was really contained within the lines of the lands run by him, including the lands in question, and that upon making his plat, and finding the figure to be very irregular, he got displeased, and swore he would not cast up the contents, or return it in that form, and then reduced a number of lines into one, struck off five or six angles in different places, and made a new plat different from the courses and distances run on the land,

By force of the royal charter, William Penn, and his successors, as proprietaries, were the undoubted lords of the soil. They stipulated, however, with the purchasers under them, to extinguish the aboriginal right of the natives. They alone had this power. No individual, without their authority, could purchase of the Indians; and the people themselves, by legislative acts,

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recognized, and aided them to enforce this important principle.

They had the unquestioned right to dispose of their lands in any manner they thought proper. But without settlement, a grant of an extensive territory would have been useless. If the condition of colonization had failed, the grant must have been resumed; and if the disposition of the great founder had not been the most benevolent, a commanding necessity obliged him to encourage emigration and cultivation, and to part with his lands upon reasonable terms.

The officers of the Land Office were his officers and agents. The commissioners of property were controlled by his regulations and authority; and it will appear, that from the acts of these proprietary agents, many rights to land have sprung up from time to time, which have, not improperly, been termed inchoate, irregular, im-ed in two months after made." perfect, and equitable titles; founded not only upon warrants, surveys, and patents, but upon settlements. connived at, or acquiesced in, depending sometimes upon the situation of the proprietor's title, or the unsettled state of his family, upon the supposed circumstance of the Land Office being shut, or encouragement given to settlers on or near controverted boundaries, and to promises. Hence also custom and usage of the Land Office from early times have vested interests, which have afterwards been confirmed by judicial decision, and recognized by laws. Thus in an instance which may be found in Kyle v. White, 1 Binney, 247, a promise made to a trespasser, to induce him to move off of the unpurchased Indian lands, by secretary Peters, was considered as entitling the trespasser to a preference after the purchase.

Whatever uniform plan of settling the country and conveying his lands, the first proprietor may have contemplated, or devised, it must very early have been found impracticable on experience. At present no regular system can be traced upon the public records. The terms of sale were changed from time to time; and as the affairs of the Land Office were not familiar to the mass of the people, it is not to be wondered at, that the assembly, even in the year 1755, in an address to governor Morris, declare, "that the state and manage ment of the Land Office is pretty much of a mystery." Votes of assembly, vol. 4, page 464.

with large appropriations of liberty lands, and it became almost a science to trace out original titles. From such cause is to be attributed the singular appearance of the original minutes of property, which exhibit a record of transfers and mesne conveyances in abstract, and pedigrees, and even of intermarriages. It is not improbable, however, that in some cases, these may be valuable documents at this day.

In the minutes of the Board of Property, August 15th, 1765, there is a special order respecting old rights. The preamble suggests that great quantities of lands on such rights had been again applied for, and twice granted, and, "The deputy surveyors are directed to send in to the surveyor general's office, all the surveys on old rights which they can discover not to have been yet returned-And all future surveys thereon to be return

Of First Purchasers, or Old Rights.

The original lists of first purchasers are recorded in the Land Offices. The privileges to which these were entitled, with respect to city lots, and liberty lands, and the price paid by them, and the quit rents to which they were subject, have been already stated. To these first purchasers, the conditions and concessions made in England, chiefly related. Wherever they desired to sit together, and their quantity amounted to five or ten thousand acres, they were to have their lot or town ship cast together, &c., and in every one hundred thousand acres, the governor or proprietor reserved ten to himself, by lot, which shall lie but in one place. It has been already shown, that this related merely to the original purchasers.

Many of these original rights were long out standing, and several not surveyed until after the revolution, and probably, some few have been entirely abandoned. The subject is at this day intricate from a variety of causes. Many of the purchases appear to have been made upon speculation by persons who never came into the province; and transfers were made of parts or parcels of large warrants to different individuals. For these parcels separate warrants were again issued to survey the subdivisions to the under purchasers By such means, it has not unfrequently happened that a considerable surplus has been surveyed beyond the amount of the original purchase. By the accumulation of old rights, by purchase, in one person, it has also happened, that entire squares of city lots, as appurte. nant, in early times have been granted to individuals,

By the seventh section of what has been termed the divesting act, ante. vol. 1, page 481. all rights, titles, estates, claims, and demands which were granted by, or derived from the proprietaries, their officers, or others, duly commissioned, authorized, and appointed, or otherwise, or to which any person or persons, other than the said proprietaries, were, or are entitled, either in law or equity, by virtue of any deed, patent, warrant or survey; or by virtue of any location filed in the Land Office at any time or times before the 4th day of July, 1776, were ratified, confirmed, and established forever, &c.

By the 5th section of the act in the text, persons possessed of old rights, &c. were confined in locating the same to the lands already purchased of the Indians.

Of Quit Rents.

It does not appear that any certain standard or rule was established with respect to quit rents at the first settlement of the province, except with the first pur"chasers, which was one shilling sterling for one hundred acres. See votes of assembly, vol. 1, part 2, page 41.

Lands which were allotted to servants, who came over with the first settlers, and faithfully served out their time, were not liable to purchase money; the quit rent was therefore greater. The seventh article of the conditions and concessions runs thus, "That for every fifty acres that shall be allotted to a servant, at the end of his service, his quit rent shall be two shillings per annum; and the master, or owner of the servant, when he shall take up the other fifty acres, his quit rent shall be four shillings by the year; or if the master of the servant, (by reason in the indentures he is so obliged to do,) allot out to the servant fifty acres in his own division, the said master shall have on demand allotted to him from the governor, the one hundred acres, at the chief rent of six shillings per annum.”

When warrants were issued upon what were called the new terms, it appears by the minutes of the commissioners of property, the price was five pounds for one hundred acres, and the quit rent sometimes a bu shel of wheat, sometimes one shilling sterling. This latter was called the common rent. The new rent, and the most usual, was one penny sterling per acre. What ever reservation was made, was stated in the warrant, as part of the contract.

In the commission of October 28th, 1701, to Edward Shippen, Griffith Owen, Thomas Story, and James Logan, as commissioners of property; authority is given to them to grant lands for such sums and quit rents, &c. as to them or any of them, should seem reasonable.

The same authority is given by the new commission of November 9th, 1710.

The assembly, in their address to the proprietor,

All quit rents were abolished by the ninth section of the divesting act before mentioned. Any observation respecting them, therefore, can have no further interest than as they may be considered as a part of the history of the titles to lands as they stood under the proprietary government.

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Some controversy, indeed, there was about this public support; and the assembly alleged that quit rents were originally agreed to be paid to the proprietor, on account of the extraordinary charge he would be at in the administration of the government. That he had sold lands to a great value, and reserved rents sufficient, in a moderate way, to maintain him or his lieutenant, answerable to their station. What if we add, say they, that we desire the proprietary would be content to live upon his rents, &c. Considerable altercation, and no little warmth took place upon this subject between governor Evans and the assembly. The dispute, however, died away. The assembly continued to provide for the governors down to the revolution. See votes of assembly, vol. 1, part 2, p. 41, 45, 155; vol. 2, p. 10, 12,

15.

Of the six per cent, allowance

The allowance was originally ten per cent. In the address of September 20th, 1701, before mentioned, the assembly request, "That the ten acres in the hundred, may be allowed according to the proprietaries' engagements." I am very willing, answered the pro prietor, to allow the ten acres per cent. for the ends proposed by law, and not otherwise.

The law referred to, was the law of property, made shortly before at New Castle, with which the people were dissatisfied, and some misunderstanding had taken place respecting it. The assembly, therefore, on the 9th of October following, (1701,) again request "That the misunderstanding about the ten acres per cent. be rectified; and the allowance for roads and highways be allowed to all lands whatever, whether already taken up, or to be taken up hereafter." On the 23d of October, they sent a member to the governor, with the request, varied in this manner. The assembly desires that the proprietary will be pleased to allow ten acres per cent, for roads, uneven grounds, &c. unto all persons, purchasers and renters, either taken up, or to take up: and for such as shall hereafter rent, five per cent, at least." The proprietor sent them the following message on the 25th "Friends, complaint having been made, that some persons had not the benefit of the law of New Castle, with respect to the allowances of ten per cent. I consented to allow the said ten acres per cent. according to the said law; but never intended to make myself debtor for those deficiencies which were not to be had; and understanding you look upon that law unequal,as giving to some ten per cent, where there is overplus, and but two per cent. upon surveyed land, where no more is to be found; I am there. fore willing to allow or make good six per cent. to all persons, as well to those that want, as to those who do not want the same upon a re-survey." This did not meet the sentiments of the assembly; and the amendment proposed by them to the bill of property was, "That whereas ten per cent. is allowed by the law made at New Castle, for roads, barren lands, uneven grounds, and differences of surveys unto all such persons who have overplus in their tracts; the same ten per cent. may be allowed unto all persons whatsoever, who have taken up lands by right of purchase, or on rent, or that shall hereafter take up by virtue of former grants; and that all persons hereafter purchasing may have five per cent." By the act of 1719, chap. 183, it was provided, "That for all lands hereafter to be taken up, or survey

ed in this province, the surveyor, that lays out the same, shall allow for roads and barrens, after the rate of six acres for every hundred acres to the owner of such lands, for which said allowance of six per cent. no rent shall be paid to the proprie ary, his heirs and assigns!" This act was repealed by the queen in council, February 20th, 1713; but the custom was established, and continued from that time to this day.

See votes of assembly, vol. 1, part 1, p. 145, 148, 153, 161, 163, 164, and appendix 14.

Of Townships.

It appears to have been part of the plan of William Penn to have laid out the province into townships, of 5000, or of 10,000 acres, and to have surveys made within the respective boundaries of such townships; and that purchasers of large tracts might lie together; he accordingly introduced this clause into his warrants, "According to the method of townships appointed by me." This plan could not be long pursued. The clause in the warrants, however, continued long after the object of it ceased. It was omitted in the warrants for the lands in the purchase of 1784, but was not discontinued in the preceding purchases, until it was struck out by the present Land Officers, as having no present meaning, or utility.

Of Head Lands.

A township was appropriated under this name, and in which, as appears from the minute books, all the servants' lands were to be surveyed,so many acres per head, according to the conditions and concessions. This could be claimed only by such servants who came in with the first purchasers.

Of Manors.

Manor courts were never established in the province. The great troubles of William Penn, in all probability, prevented his attention to this subject, which would perhaps have failed in the experiment, and might have been obnoxious to the people, and have introduced a state of vassallage, to which they could not long have submitted. That he kept it in view, appears from the following entry, in minute book, C, p. 6. "The proprietor gave to Martin Zeal, a paper wrote all in his own hand, and signed by him in the following words, (I am willing to let Elizabeth's husband have 50 acres in my manor of Pennsbury, on the other side of the run, to the Shoemaker's, lying upon the said creek, and near running back to William Biles' line, at three pence sterling per acre, to begin to be paid the third year, and so forever after,holding of the said manor, and under the regulations of the court thereof, when erected" Warrant ordered by the commissioners accordingly, (1701 ) Technically speaking, therefore, there were no manors in Pennsylvania, although the proprietary tenths, and other large surveys for them, were so called. I he tenure by which the charter was held, was that species of feudal tenures called Socage, by fealty only, in lieu of all other services; and the tenures under William Penn were by a kind of rent service. The patents were in free common socage, in lieu of all other ser vices. By the abolition of quit-rents, all estates derived immediately from the commonwealth, are unconditional fees simple, with a reservation only of a fifth part of gold and silver ores, at the pit's mouth. Happily for Pennsylvania, this reservation has been merely nominal, and the surest mines of wealth, are the virtue, industry and simplicity of the people. Every grant of land, however, under the proprietary government, was no minally declared in the patent to be held as of some certain manor.

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"I

1

In the eighth section of the divesting act, vol. 1, p. 481, in the reservation of the private estates of the proprietaries the manors are thus mentioned; “Likewise all the lands called and known by the name of the proprietary tenths or manors." It has already been

shewn, in Carson v. Blazer, before cited, that the terms of the conditions and concessions, confining the tenths of the proprietaries to one place, and to be taken by lot, related only to the grants to the first purchasers. But the proprietor had the right to withdraw any land, not previously appropriated to individuals from the general mass of property, and to appropriate it to his own use. Such was the judicial construction, upon the Springetsbury manor case: See Penn v. Kline, Dallas, 407.

William Penn issued his warrant, dated 1st of September, 1700, to Edward Pennington, then Surveyor General, to survey for the proprietor 500 acres of every township of 5000 acres; and generally, the proprietury tenth of all lands laid out, and to be laid out; and similar warrants were issued by the successive proprietaries, to every succeeding Surveyor General. Warrants were likewise issued for the appropriation of the islands in the different purchases.

All these special appropriations to proprietary use, are entered together, since the revolution, and are preserved in the Surveyor General's office.

Regulations of Settlement.

By the fourth section of the concessions and conditions, any number of purchasers, whose number of acres amounted to five or ten thousand, desired to sit together in a lot, or township, their township was to be cast together, in such places as had convenient harbors, or navigable rivers attending them, if such could be found; and in case any one or more purchasers did not plant according to agreement in this concession, to the prejudice of others of the same township, upon complaint made to the governor, or his deputy, he might award (if he saw cause) that the complaining purchaser might, on paying the surveying, purchase money, and interest, be entitled to, and invested in the lands so not seated. And by the preceding article, purchasers from one to ten thousand acres, or more, were not to have above one thousand acres together, unless in eve ry three years they planted a family upon every thousand acres: and by the tenth section, every man was bound to plant his lot within three years after it was set out and surveyed, otherwise it was to be lawful for new comers to be settled thereon, paying the survey money, and the first purchasers were to go higher up for their shares.

These regulations were certainly neglected, and the proprietor endeavoured to enforce it by proclamation, which still exists on the journals of the commissioners of property, 1687, letter F, in these words, Proclamation concerning seating of land by William Penn, proprietor and governor.

months after the publication hereof, provided always, the usual time allowed for plantations, be already expired; and that this extends not to those persons that have forfeited their lands in the annexed counties, (the three lower counties,) to whom I allowed a year and a half time, after my arrival, to settle at the old rent, and have nevertheless neglected to do the same; and that the said commissioners are further desired and required to take the greatest care, that justice and impartiality be observed towards all in the disposal of land, as well in reference to quality as quanti y,that what is right in the sight of God and good men, may always be preferred, for it is the best and lastingest bottom to act and build upon."

"Since there was no other thing I had in my eye in the settlement of this province, next to the advancement of virtue, than the comfortable situation of the inhabitants therein; and for that end, with the advice and consent of the most eminent of the first purchasers, ordained that every township consisting of five thousand acres, should have ten families at the least, to the end that the province might not lie like a wilderness, as some others yet do, by vast vacant tracts of land, but be regularly improved, for the benefit of society, in help, trade, education, government, also roads, travel, entertainment, &c. and finding that this single constitution is that which eminently prefers the province in the esteem and thoughts of persons of great judgment, ability and quality, to embark with us, and second our beginning, I do hereby desire,and strictly order my trus ty and loving friends and commissioners, William Mark ham, Thomas Ellis and John Goodson, or any two of them, that they inspect what tracts of land taken up, lie vacant, and unseated, and are most likely to give cause of exception and discouragement to those that are able and ready to seat the same, and that they dispose of, if not seated by the present pretenders within six

Given at Worminghurst place, in old England, the 24th of the 11th month, 1686.

This proclamation was published in the province the 26th of the 5th month, 1687.

These proceedings, however, appear to have had no operation, nor does any record appear of any forfeiture, or re-grant of any of the lands surveyed on the original rights. The province continued to increase and pros per, and applications for new lands were almost daily made; the method of townships was very soon lost sight of, and surveys promiscuously made according to the wishes of the purchasers. The warrants in 1701, express "That the land shall be seated within two years after the survey." Vacating warrants will be hereafter considered.

Of surveys, and surplus lands.

This subject engaged much of the attention of the first proprietor; he was desirous to be just, but he was tenacious of his rights. There was at the date of his charter, a very considerable settlement on the banks of the Delaware, and the titles were generally derived from the governors of New York, under the crown. The inhabitants were quieted in these titles; and instances occur of grants from Sir Edmund Andross, which had not been surveyed, being ratified, surveyed and patented by order of the commissioners of property. But it was supposed that these old rights included a large quantity of land more than was expressed in the patent, or the possessor had any right to by the original warrants, or orders for the surveying or laying out the same. Large quantities of surplus lands were also sup posed to have been included within the patents issued from his own office. A method was therefore adopted of issuing warrants of the re-survey, and after cutting off the overplus, confirming the quantity first purchas ed, by a new patent. The practice, however, eventu ally failed. It may have been possible that in some ca ses too much land was fraudulently included; but in most instances it may have happened through mistake, or want of skill in the surveyors. Experience has pro ved that surveys made in early days, especially in a new country, have most generally overrun the measure, upon a re-survey. The system must therefore have be come impracticable, and was discontinued after the year 1713. The proceedings are however here given, as part of the ancient land history of the country.

The following instructions were given by William Penn, on the first of the 2d month, called February, 1686, to his commissioners.

"That no warrant of re-survey be granted by you for land within five miles of the river Delaware, or any navigable river "

"That all overplus lands, upon re-surveys, granted by the former commissioners, not already granted, or not patented, be reserved to my use and disposal."

"No lands to be laid out next or adjoining to that inhabited, and that in every township one share be reserved for the proprietary, with all the Indian fields that are in the said township."

"No land containing mines, to be granted without William Fenn's express warrant. Book F.

In the commission of October 28th, 1701, when the

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proprietor was about to sail for England, (book G,) among other things, he authorizes the commissioners of property, "To grant lands for such sums, and quitrents, &c. as to them, or any three of them should seem just and reasonable; also, to sell intervening, concealed, or vacant lands; to dispose of surplus lands; and to make satisfaction out of my other lands and estate, (my appropriated land excepted,) in the said, province and territories, as the law in that case directs, for all such deficiencies in measure, as upon a due re-survey shall be found in any tract or tracts, or parcels of land, to the respective persons thereby grieved, &c. And while on shipboard, on the first of November, by a second commission, he gave them power to erect manors, with ju. risdiction thereto annexed, as fully as he could do by the charter. This latter power, however, they declined exercising,on the application for such a manor in Buck's county by Mr. Growdon.

naming, or not true naming counties, or places where
But nothing therein con-
the lands were situated, &c.
tained, obliged the proprietary to make good any pa-
tent annihilated, or made void by due course of law; or
to make good to any purchaser of a right, or rights to
unlocated lands, who inadvertently, or by misinforma-
tion, had obtained, or should obtain a patent or confir-
mation of lands which should be discovered to be the
prior right of another person, further or any more, than
the same quantity of land in the next advantageous
place that such purchaser should choose and discover
to be vacant and free from all other claims. But where
such prior right should appear and take effect against
any such person or persons, who had purchased the
same tract, or parcel of land of the proprietary, or his
commissioners, or agents, by a certain name, or by any
agreed location in that particular place, or the warrant
expressing the same accordingly, then, and in such
case, the proprietary, his heirs and executors, should
refund and make good such second purchaser the full
sum or value, which he the said proprietary, or his
agents, did receive for the same, together with lawful
interest, from the time such payment was made; and in
both the above mentioned cases, if the latter purchaser,
his heirs or assigns, shall have made any improvements
on the said land, such improvements were to be valued
by persons indifferently chosen, and paid for by the first
purchaser.

And as several persons had obtained grants or patents before the date of the charter, for more lands than they had any right to by their original warrants, or orders for the surveying, or laying out of the same, they were not to be confirmed, but as to the residue or overplus of said lands, were declared to be null and void, and of none effect; and new patents were to issue for the quantity they were entitled to

The act then proceeded with respect to the re-surveys which had been made under the act of 1700, and the overplus was to be offered to the possessors at reasonable rates, to be fixed, in case of disagreement, by Under this act many re-surveys were made, and referees, who were to fix the price, or appoint where over-measure found; but the act expired before the it should be taken off for the proprietary, in one entire same could be cut off, or the rates settled; and the pro-and convenient piece, at an end or outside, saving, to the possessor his improvements and best conveprietary was not satisfied for his over-measure; in consequence of which the act of 1712, entitled "An act niences, and the residue was to be confirmed to the confirming patents and grants," (chap. 183, and Ca- owner by a new patent, and the overplus be disposed of by the proprietor. rey's and Bioren's appendix,) was passed.

This act confirmed all lands which any person or persons held and enjoyed, or ought to have, hold, and joy within the province, as well by or under any old grant or estate from the proprietor, or his commissioners of property and agents, pursuant to such person's This act was repealed in council, 20th of February, right, &c. as also by, or under, any old grant, patent or Votes of assembly, vol. 2, p. 150. warrant obtained from governors or lawful commission- 1713. The resuming surplus lands, and allowing for defiers under the crown of England, before the charter to the proprietary, or by any other legal, or equitable ciencies, appear by this act to have been mutual stipugrant, right, title, entry, possession, or estate whatso-lations between the proprietary, and the people. We ever; but it was not to be construed or adjudged to find nothing more, however, upon record, respecting confirm any lands taken up by virtue of the said old re-surveys, after this period. With respect to the algrants, which were not duly seated or improved by the lowance for deficiencies, the instances in the proprietary grantees, or their assigns before the year 1682, nor for times are numerous; and it appears to have been a prinany more, or greater quantity, than should appear by ciple, to allow a credit for over-payments, upon the any grant from the proprietary, or from his predeces- most equitable of all rules, that no man should be comsors, the former governors aforesaid, to be the grantee's pelled to pay for that which he could not obtain, or just due (over and above the six acres by the said pro- where the consideration had failed. With respect to prietary allowed to be added to every hundred acres of laying warrants, or locations on other advantageous lands for roads and barrens, and the four acres, over or places, not at first contemplated, or what is called shiftunder, to be accounted for difference of surveys;) nor ed warrants; that subject will be considered in its proto create a right to the possessor or claimer of lands, per place, in the note. that were not taken up, or surveyed by virtue of a warrant, or order, from persons empowered to grant the same, and by a surveyor appointed for that purpose.

(To be continued.)

The law alluded to, was the law of property, passed at New Castle, in 1700, and confirmed in 1701; which enacted (among other things,) "That any person's lands in this province should be re-surveyed; and if upon such re-survey (after allowance of four acres in the hundred, over or under, for difference of surveys, and six per cent. for roads,) an overplus shall be found, the possessor thereof should have the refusal of it from the proprietary, at reasonable rates; and in case of disagreement about such rates, the proprietary was to choose two men, and the possessor two more, who should either fix a price on the said overplus land, or appoint where it should be taken off for the proprietary in one entire piece at an outside (saving to the purchaser or renter, his improvements and best conveniences,) any three of whom agreeing, should be conclusive; and the charges of re surveying should be borne by the purchaser, or renter of the main tract, if he bought the overplus, or if not, then by the proprietary; and that deficiencies should be made good by the proprietary, according as he received for overplus land as afore'said."

If upon any such re-surveys any tract had been found en-deficient in the number of acres for which it was at first granted, all such deficiencies were to be made good by the proprietary, after the same rate he received for overplus lands in that neighborhood.

LIBRARY OF FOREIGN LITERATURE.

At a meeting of the Stockholders of the Pennsylvania Library of Foreign Literature and Science, held at the Library, under the Athenæum, on Monday, 11th No

The Roll's office was declared to be an office of record; and all patents to be matters of record, and to have no need of delivery before witnesses, livery and seizin, or acknowledgments, as deeds of other persons. No patents to be prejudiced by mis-recitals, or for mis-vember, 1833.

VOL. XII.

44

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