after stating the facts, proceeded as follows:
If this land was actually surveyed for Pomeroy, and improperly returned by the deputy surveyor on Porter's warrant, and if Pomeroy had taken possession, insisted on his title, and never relinquished it, then there would have been an outstanding title which would have barred the plaintiff’s recovery, even though the title of the defendant had not been Connected with that of Pomeroy. Whether it was so connected, does not appear by the bill of exceptions, and therefore we cannot suppose that it was. If as the defendants’ counsel now say, the connection was proved, it ought to have been inserted in the bill. The papers rejected by the Court seem to have been material for the establishment of Pomeroy's title. Such papers have been received in similar cases. The field notes of the deputy surveyor were admitted in Hubly's Lessee v. Chew, 2 Sm. Laws 257; and it is evident that the old draught endorsed John Pomeroy, must have been very material to shew that the survey was originally made for Pomeroy. Such a draught was given in evidence without dispute, in the case of Ross's Lessee v. Patterson, tried before the late Chief Justice Shippen and Judge Brackenridge at a Circuit Court for Lycoming county, in which I was of counsel for Patterson. In that case the name of Patterson had been endorsed, then obliterated, and the name of another person inserted in the place of it. The warrant calling for the land of Pomeroy, also tended to shew that a survey had been made for him. By rejecting these papers, the Court took upon themselves to decide matters which ought to have been submitted to the jury. Whether 1 the location was the property of Pomeroy, and supposing it *127to be his property, whether he had acted so negligently as to forfeit the imperfect title which he had acquired, were ’ matters which depended on a variety of circumstances, concerning which the Court might have given their opinion \o the jury after the evidence was closed. But it appears to me, - that agreeably to former decisions, the evidence ought to have been received. I am therefore of opinion that the judgment should be reversed, and a mew trial ordered.
Ye ates J. absent in consequence of sickness. Brackenridge J. was of the same opinion with the Chief Justice.Judgment reversed.