The evidence appears to us to be admissible. The case of Turbett’s lessee v. Vance, in 1789, is expressly in point. Courts of justice are frequently governed in their determinations by the customs of the country, as in the case of administrators selling in early times improved and even warranted and surveyed lands, as mere chattels, without any order of Orphan’s Court. So of the practice of the land office, (Dall. 7) under which a great part of the country has been settled, though not strictly regular in itself. Surveys under the usage, if established, cannot be considered as private acts. They are the proceedings of known proprietary officers, duly authorized by their principals to receive money for them as their agents, and to make appropriations of land by surveys. The practice tended to unite the proprietary and individual interests, and contributed greatly to the ease of the people.
The characteristics of a good usage are, that it be generally used and approved; and, according to the case cited by the Chief Justice, in 2 Mod. 238, “ the law is but common usage, with which it complies and alters with the exigency of affairs.”
The witness was accordingly received, and the usage opened was by him fully proved.
Yerdict for the plaintiff.
On the return of the postea, a rule to show cause why a new trial should not be granted, was obtained on the ground of great negligence and laches in the lessor of the plaintiff, in not commencing his second ejectment for many years after the first non-suit. On full argument, wherein the opinion of the court, on giving the usage in evidence was not. questioned, the court unanimously discharged the rule in bank March 24th, 1800, and gave judgment for the plaintiff.