The grounds of decision on which the board proceeded between these parties, were certainly just and conscientious, and would be sanctioned by a court of justice. The late proprietaries having intended to put the adventurers in the lottery on an equal footing, the taking of a double chance for the same lands by any individual, did not correspond with fair dealing. It may be resembled to a person’s putting in two votes at an election, whereby both tickets are thrown away. But the secretary or receiver general’s assertion on finding of the fact, that De Haas put in two locations for these lands, does not prove it, nor is the same conclusive on the jury. The original applications ougth to have been produced under a subpoena, with a duces tecum, and-the jury could be enabled to judge for themselves by *317inspection. It is true, that M‘Cally’s and M‘Elroy’s applications, containing the same precise words and orthography — the latter claimed by De Haas at the time of entry, and the former, at least as far back as the warrant of acceptance in 1772, give a strong ground for suspicion ; but much better proof could be had of the fact, if it really existed. The evidence at present, is merely of the presumptive kind, of which the jury will form their own opinions.
Messrs. Ingersóll, Duncan and C. Smith, pro quer. Messrs. D. Smith and Hall, pro clef.The deposition of John Neilly, who is since dead, taken on the 8 th May 1773, and used before the Board of Property between these parties, was then offered in evidence by the defendent, but refused without argument by the court, who said, that such depositions had been uniformly rejected.
On the part of the defendant, it was proved, that the location under which he held was made by his father Bartram Gralbreath, when he surveyed some adjoining lands under a special order for John Allen, esq. and that the same was descriptive of the lands in question, there being remarkable beaver dams thereon: and that on running the Indian path from Mahoning to Muncey, the chief part of the lands and meadow lay to the westward of the path, and that the bog meadow in the plaintiffs location, better suited one of the tracts east of the path, which had been surveyed for Mr. Allen.
The court informed the jury, that it had been often determined, that absolute strictness is not to be expected in the applications for lands in a country newly explored, and that if such lands are designated with a reasonable and convenient certainty, it is sufficient. Though locations however, are not to be scanned with critical exactness, but are to be judged of with some degree of liberality, yet it would be manifestly unjust, that a party should hold lands in direct opposition to the terms of expression of his wishes, to the injury of others. The plaintiff’s application calls for lands adjoining the path ; but the survey is inclusive there of. It called for lands to the eastward of the path; but the great bulk of the survey, and the chief part of the meadow, lay to the westward thereof.
It was therefore submitted to the jury, whether the plaintiffs location was, under the terms thereof, intended for the lands in question ?
Verdict for the defendant.