The present case is certainly allied in point of principle to our former decisions on this subject; and in some of these cases testimony of a similar nature has been overruled, though offered on the part of the defendants. Whether applications filed should be distinguished from warrants in the particular under consideration is now to be determined. The regulations of the land office in 1766, seem to have blended the proprietary interests with those of the poorer class of the community, who might not have ready cash to advance for the purpose of taking out warrants, but who by the addition of their labour to the value of the soil, would give a permanent security for the payment of the consideration money. The new institutions however, cannot be regarded as a variation of the rights of the proprietaries, or the duties of individuals ; and I concur in opinion with the plaintiff’s counsel, that the insertion of an improvement in an application is nothing more than a designation of the place intended to be located. The instances produced of warrants taken out in 1767, with others which I recollect to have seen of the like kind, evince to me fully, the mode of procedure, when improvements previous thereto were intended to be secured. The old consideration and quit-rents are specified therein, as the terms on which such warrants issued.
It follows therefore that such improvements cannot be adduced to establish a title to the lands anterior to'such application. But may they not be given in evidence to shew that the plaintiff’s survey could not legally take effect ? The time of *431making it is not inserted in the return, which is a suspicious circumstance, and a departure from the uniform method pursued in such cases. *J°hnston’s warrant was dated in Octo-*432] her 1765 ; and the surveys on both warrants having been made at the same time, it must necessarily have been done after that period. But such a survey, if it included the real bona fide settlements of third persons, would not have received the sanction of the land office, or of the country, from their uniform usages. It is true that by going into this testimony, the defendants will derive a degree of benefit from improvements, the equity of which' they seem to have abandoned ; but this appears inevitable, and flows as a necessary consequence from the investigation of the validity of the survey made for the plaintiffs. In this point of light, I view the evidence as admissible.
The counsel for the plaintiff desired that the point might be noted, and reserved for further discussion, if it should become necessary, which was accordingly, done.
The testimony was fully gone into, and the facts opened by the defendant’s counsel, were clearly established thereby.
The defendant’s counsel offered in evidence the deposition of George Nagel, taken under a commission issued to the state of Ohio.
This was objected to, because the 44th rule of practice in the Circuit Court is, that written notice of the commission should have been served on the adverse party at least fifteen days before the commission issued; which was not complied with in the present instance.
It appeared, upon examination, that the interrogatories were filed on the 28th September 1805 ; notice given thereof on the 30th September and the commission issued on the 14th October 1805.
The court considered the commission as having improvidently issued, and suppressed the deposition.
Several marked trees were blocked on the different lines claimed by the contending parties, and evidence was given to the jury of the ages of those marks, from the annual growth of trees ; the jury however were desirous of seeing the blocks of those trees in order to account the growth for themselves. Whereupon Henry Putt was offered to prove that the blocks, which he produced in court, were those which had been cut from the trees by the order of William Piper the surveyor.
'*'He was objected to, as an interested witness, it being r* acknowledged, that he claimed and was in the actual pos- ^33 session of lands, holding under the survey, set up by the plaintiff.
Se.dper Ctir.He is adduced as a witness to the court, to prove a collateral fact, viz. the identity of certain blocks, which being *433established to their satisfaction, the blocks are permitted to go to the jury for their inspection. This is analogous to proving where certain papers were found, or the entries in a day book, which may be done by a party to the suit. Besides, is not Putt a competent witness on legal principles ? He may be interested in the question now trying, but cannot be affected by the event of this suit. The objection according to the modern decisions, which we have adopted, goes merely to his credibility.
Referred to in x S. & R. 132. Distinguished in 1 W. & S. 495. Messrs. Duncan, Woods and Brown, pro quer. Messrs. J. and S. Riddle, pro def.At the instance of the defendants’ counsel, this point was also reserved for future discussion.
Verdict for the defendants.