property that is spoken of by the complainant's witnesses. They also testify. that the complainant, and Thomas Lacy, acknowledged that they both signed the instrument, so that the testimony taken together, rather confirms than contradicts the answer.

Injunction dissolved, and bill dismissed.

HASTINGS v. STEPHENSON.

JUDGES PEASE AND BURNET.

1825.

A survey did not so appropriate lands as to render a subsequent entry void, in cases that occurred before the act of congress of 1807.

Lands cannot be appropriated without an entry, and where the survey and patent include lands not embraced in the entry, such land is subject to entry as vacant land, and the patentee or those claiming under him shall be decreed to convey to the subsequent locator.

The bill states, that on the third of August, 1787, an entry was made in the following words: No. 459. Capt. Churchil Jones enters 1000 acres of land, part of a military warrant 2311, on the north west side of the Ohio, beginning at the mouth of Brush or Eighteen Mile creek, running up the river fifty poles, thence from the beginning down the river five hundred poles when reduced to a straight line, thence at right angles from the general course of the river for quantity. That on the 17th of March, 1792, the following entry was made: No. 2023. Thomas McClanahan enters 2 0 acres of land, on a military warrant No. 1863, on the lower side of Brush creck, beginning at a poplar tree, marked J. B. 1791, on a branch one and a half miles from the mouth of Brush creek, running south 30, east 200 poles, and from the beginning north 30, west 40 poles— thence southwardly at right angles for quantity, of which entry, one hundred acres were surveyed on the 19th of August, 1809, for which a patent was grant ed to William Russell, assignee of J. Beasley, assignee of the said McClanahan, on the 23d of November, 1818. That Russell sold and conveyed the said 100 acres to the complainant, on the 4th March, 1819. That a survey, purporting to be made on the aforesaid entry of Churchil Jones, but variant therefrom, was fraudulently made, including a part of the land owned by the complainant. That a certain N. Grimes acquired an assignment from Jones of the aforesaid 1000 acre entry, and fraudulently procured a patent therefor, prior in date to the patent of the complainant, but junior to the entry on which he claims. That John Stevenson, the defendant, having obtained a title from Grimes for so much of the land as interferes with the prior equitable claim of the complainant, commenced an action of ejectment and recovered a judgment therefor.

The bill prays for a decree that the defendant withdraw, or relinquish to the complainant, and for an injunction.

The answer admits the entry in the name of C. Jones-avers that the same was legally surveyed on the 7th November, 1787-that the survey was recorded on the 17th March, 1788-that on the 28th October, 1799, a patent issued to Grimes that the defendant has obtained a legal title to a part of said land, for which he recovered a judgment at law in an ejectment-that N. Grimes

sold and conveyed that part of the land which the defendant claims to Thomas Grimes, who sold and conveyed the same to the defendant. The defendant admits the entry for 200 acres in the name of McClanahan; but does not know whether it was special or legal, and that a part of it was withdrawn.

Several witnesses were examined, but their testimony did not cast much light on the subject.

Thompson, for the complainant. Brush, contra.

By the COURT.

The evidence in this case is not sufficient to enable us to make a final decree. The preliminary questions, however, on which the final decree must principally depend, may now be stated.

1st. It appears from the evidence, and the points conceded by the parties, that the entry of McClanahan, under which the complainant claims, was made agreeably to law-neither the sufficiency nor the notoriety of its calls has been disputed. Brush creek was generally known. The poplar, marked J. B. 1791, called for as a beginning, is well described. The side of the creek on which it stands—its distance from the mouth of the creek, and its situation on a run being given, a subsequent locator, by reasonable diligence, might find it. And the surveyor testifies, that in tracing the survey, he found all the corners as described in the complainant's deed, which appears to be a transcript from the patent.

2d. As this entry was made in 1792—and the entry of Churchil Jones was not carried into grant till 1799, it is the opinion of the court, that it covered and appropriated all the land embraced in its calls, not included in the calls of Jones' entry. The fact that the survey of Jones was made before the entry of McClanahan, does not affect the case, as the entry was made long before the passing of the statute that prohibits locations on lands previously patented or surveyed. We admit that entries may be amended, but not that a survey is necessarily such an amendment of an entry as will appropriate land clearly without the calls of that entry, in opposition to a subsequent location. Were this the case, lands might be appropriated by a survey without a previous entry, notwithstanding the express requirement of the statute of 1779. It has however been decided by the Supreme Court of the United States, in the case of Wilson v. Mason, that a survey not founded on an entry is a void act, and constitutes no title whatever; and that consequently the land so surveyed remains vacant and liable to be appropriated, by any person holding a land warrant. The principle here decided, seems to settle this question; for if an entry must precede a survey, the entry must cover the land surveyed, and every part of it, or a portion of it would be appropriated without an entry. If any portion of the land, however small, may be legally appropriated without an entry, we see no reason why an entire tract may not be taken up in the same way. If the holder of a warrant may enter one thousand acres, and in surveying, vary so far from his entry as to include one hundred acres not covered by it, he might on the same principle take one acre within and nine hundred and ninety-nine acres without its calls, or, as was the case in Wilson v. Macon, enter on one water course and survey on another.

The terms used in the entry of Churchil Jones are somewhat ambiguous; but we believe the true construction of it will give a base on the Ohio of five hundred poles, including the fifty poles above the creek. The mouth of the creek appears to be adopted merely as an object from which to ascertain the begin ning corner, which is a point fifty poles above the mouth.

The words of the entry are, "beginning at the mouth of Brush, or Eighteen Mile creek, running up the river fifty poles-thence from the beginning down the river 500 poles when reduced to a straight line." The word thence must refer to the termination of the 50 poles, and consequently the 500 poles called for, must commence at that point. The most natural construction of the language is, running up the river 50 poles, and from thence, as a beginning, down the river 500 poles, &c. The same result will be had by a simple transposition of the words thence and from.

On the whole, we are of opinion, that the true construction of Jones' entry, requires it to be surveyed by beginning at a point on the bank of the Ohio, 50 poles on a straight line above the mouth of the creek, and by running from that point as a beginning corner, down the river with its meanders to a point on the bank of the Ohio, 500 poles on a straight line from the beginning course, and from those points at right angles from the base line so far as to include the quantity of 1000 acres, the opposite lines being equal and parallel.

It is contended by the complainant, that the survey heretofore made on this entry, extends further back from the river than the calls, as now construed, justify, and that it has been run so as to include a part of the land contained in his entry. On this point, it is the opinion of the court, that so much, if any, of the land included within the calls of McClanahan's entry and survey, as has been covered by the survey and patent of Jones, but not included within the calls of his entry as now expounded, has been fraudulently recovered from the complainant, and that in equity and good conscience, the defendant ought to release the legal title he has acquired to it, by obtaining the elder patent. But as no survey has been made of Jones' entry on the principles here laid down, whereby the interference, if any, can be ascertained, it is ordered that the surveyor of Adams county, execute a survey of that entry agreeably to the directions herein given, and return the same to the clerk of this court.

DUCKWALL v. WEAVER.

JUDGES PEASE AND BURNET.

1825.

When the subscribing witness to a writing denies his signature other witnesses may be called to prove its execution.

A note partly destroyed may be declared upon as entire, and proof received on the trial of the mutilated part.

The facts were these. Weaver instituted a suit against Duckwall and wife, on a note purporting to have been executed by the wife, when sole. The de. fendants filed the following affidavit "David Duckwall being sworn, saith that the promissory note on which the above action was brought, was not subscribed by

the wife of the defendant, when sole, as he verily believes." No plea was filed in the cause at the trial, a part of the note set out in the declaration containing the name of the subscribing witness was offered in evidence, accompanied with proof that the note had been torn, and a part of it lost by accident. John Carrel, whose name appeared on the note, as a subscribing witness, was also called, who denied the signature to be his. The plaintiff then offered witnesses to prove, that the name of John Carrel, on the paper offered, was the proper hand writing of the said John Carrel. The defendants objected to the whole of the evidence offered-the objection was overruled, and a bill of exceptions taken. A verdict was found for the plaintiff. Judgment entered, and a writ of error taken.

The errors assigned were: 1. "The court erred in admitting testimony to prove the hand writing of the subscribing witness."

2d. "The court erred in permitting a part of the note to be given in evidence, when the same was not declared on."

By the COURT.

It is a general rule, that the best evidence the nature of the case admits of, and that is in the power of the party, shall be produced. Deeds and other instruments of writing, are therefore ordinarily to be proved by the subscribing witnesses.

The rule however, admits of exceptions, as where the witness is dead, absent, incapacitated, or cannot be had. In these cases, inferior testimony is received, from necessity, to prevent the failure of justice. In Lee v. Ballard Hill, 1790. M. S. it was ruled by Lord Kenyon, that where there could be no direct proof of the execution of the bond, by the subscribing witness, collateral evidence was admissible. In Abbot v. Plumbe, Doug. 216. Lord Mansfield observed that it had been doubted formerly, whether if the subscribing witness denies the deed, you can call other witnesses to prove it, but that it had been determined by Sir Joseph Jekyl, in a case which came before him at Chester, that in such case, other witnesses might be examined, and that it had often been done since. The same doctrine will be found in Peake's Evidence, 101-2.

The admission of such testimony, cannot be considered as interfering with the rule, which prohibits a party from impeaching the credit of his own witness, for the witnesses subsequently called, do not directly discredit the first witness. They do not testify as to his character, and the impeachment of his credit, if any ensues, is indirect and consequential. The witnesses who were objected to, in this case, and admitted by the court, were called to prove a fact that was important in the cause, and although the first witness had proved that fact contrary to the expectation of the plaintiff, that circumstance could not prevent him from proving how the fact really was, by other witnesses; and if the feelings, or character of the first witness were in any way affected, it was the unavoidable consequence of the exercise of a legal right by the plaintiff.The scope of the rule just referred to, seems to be to protect a witness from any direct attempt that may be made by the party who called him, to destroy his credit by general evidence, and one reason for the rule is, that such a license would put it in the power of suitors, either to sustain, or destroy their witness es, as their testimony might operate for, or against them,

If the plaintiff in error be correct in the position he has taken, there must in many cases, be a total failure of justice. Persons who sign their names to instruments as witnesses, frequently lose all recollection of the fact, and sometimes their hand writing changes so much, as to induce them to doubt or even deny their own signature, when examined after a lapse of years; and it sometimes happens that a witness from corrupt motives, will knowingly falsify the truth, by denying his signature. To say, in cases like these, that a party shall be concluded, would be a sacrifice of substance to form. The rule we conceive does not require such a rigid construction. If the subscribing wit

ness can be had, he must be produced. If when produced, he can prove the execution of the instrument, his evidence is that which the law requires, as it is the best in the power of the party, but if he cannot indentify his signature, he is, as to the party producing him, as though he was absent, or dead. The fact to which he is called, remains unproved, and the party may resort to secondary evidence. We believe this to be the common sense of the rule, and the settled construction of it.

The second assignment is that the declaration does not describe the note as mutilated and partly lost. This objection seems to have a reference to the rule laid down for declaring on deeds, of which the defendant has a right to oyer, and of which the plaintiff is therefore required to make profert. In these cases, when the deed cannot be produced, the plaintiff may excuse himself from making a profert, by averring that the deed has been lost, by time and accident. In the case before us, it appears that a part of the note had been destroyed, and the objection was, that that fact had not been set out in the declaration. There is no analogy between this case, and those in which that averment is required. In an action on a promissory note, the defendant not being entitled to oyer, a profert is not necessary, nor is it necessary to set out the note in the declaration--it may be given in evidence on the general counts -its mutilated state, therefore, need not be described in the pleadings. It is time enough to disclose that fact, and to account for it, when the paper is offered in evidence.

Judgment affirmed.

ROBBINS v. BUDD.

JUDGES BURNET AND SHERMAN.

1825.

A person fined by one justice for profane swearing and arrested and brought before another Justice for the same offence, can only prove the former conviction by a transcript from the docket of the justice who assessed the fine.

The declaration contained three counts. The first stated in substance, that William Robbins was a son and servant of the plaintiff in his employ—that the defendant being a Justice of the Peace, issued his warrant against the said William, caused him to be unlawfully arrested, fined him in the sum of three dollars, and imprisoned him, whereby he lost the benefit of his labor. The second count charged the arrest to have been made with force and arms. The