The opinion of the court was delivered-by.
Top, J.The subscribing witness being dead, proof of his handwriting appears to have been well enough made .out by one who saw him put his name to the very paper.. I think'no interest was shown to exclude Shrike as a Witness. /His lease was in.1797. How long Unger, the defendant below, against whom the witness was called, had. been in possession of the contested' spot, did not appear. But as no' suit had been brought against Shrike for such a great length of time, and he had been out of possession probably twenty years, or more, it. would have been wrong, without further evidence, to presume, that any liability-for niesne profits still existed against the witness. As to the admission of the book, purporting to be Bartram Galbraith’s, and the -field notes of the resurvey, of the 19th of December, 1792, it had .been shown already.in the cause, that Unger, the defendant below, held one hundred and eighty acres on a warrant and patent, in the name of Jacob Garver, granted prior to the revolution; the piece of land in dispute being about twenty-two iacres, adjoining the said one hundred and eighty-acres tract of Unger. Wiggins, the plaintiff beloW,. claimed the twenty-two acres under a Warrant for for- one hundred acres, dated 'the same 19th of December, 1792, granted to George Rimion, and calling for Jacob Garveir’s survey as one of its boundaries;- that is *334to say, covering the ground in question in this cause. On this warrant for one hundred acres, Mr. Galbraith was the surveyor who made the survey for Wiggins; and in- making it, instead of adjoining the-line of' Unger, it appears that he left out the twenty-, two acres, now in dispute, next tó Unger’s tract. Wiggins complained of this- as injurious to him, and as excluding some of the best of the land. Therefore, he, Wiggins, petitioned the Board of Property, and obtained ah order for a résuhvey. And on the 21st -of May, 1806, a resurvey was made for him by Levy G. Hollingsworth, deputy surveyor, of. one hundred and a half acres, including the land in dispute, according to-the call of the warrant, and throwing off a part of.the .former survey next .the mountain. But before-, this resurvey by Hollingsworth for Wiggins, viz. on the 6th of January, 1802, Unger had obtained a warrant for thirty acres, and on the -17th of the same month, a survey on it, including the twenty-two acres in question. There were, other matters of fact contested in the cause not material to be stated.' Galbraith’s book and notes of the resurvey were objected-to oh behalf of Ungér, because the resurvey being wholly without authority, could not be legal evidence; and, because there was no , proof of the resurvey having been attempted at the request, or with the knowledge of Unger, the defendant, or of any one under whom he.claimed. These.objections were overruled by the court below, very rightly, in my opinion. Because, by the rule of law, the acts of a deputy surveyor, done for the benefit of A., shall not be given in evidence by A., to support his own claim, without producing the authority under which the deputyacted, it'by no means,-follows, that the unauthorized act of the "deputy, done, or'attempted by the procurement of A., shall not be given in evidence by B. to, expose the invalidity of A’s. title. Here, the total absence of all pretence of right to extend .the lines of Unger’s patented tract, so as to include the twenty-two acres, was the very matter which made the evidence material to the plaintiff below. It was strong proof, that Unger, on the day of the date of the plaintiff’s warrant, had no legal or equitable title to the land. Equally strong was it to support the allegation of Wiggins, that the first survey on his warrant, by Mr. Galbraith, had been returned injuriously, by throwing out the land in question; and strong, also, to show for what purpose,, and in whose favour the thing was so done. But, it is said, the unlawful act of the deputy shall not be thus visited upon. Unger, without some evidence to show Unger’s procurement, or in some respect, to implicate him in the matter. Most clearly the law is so.- But equally clear it is, in my opiniun, that the able judge(the Hon. Charles Smith,) who tried this cause, peculiarly versant in these questions of original title, and whom, as he is no longer on the bench,' I may be permitted to mention in this way, so directed the jury. We have not the charge before us, nor was it excepted tp by either party. Unger’s concurrence in the resurvey, was a matter of fact. Though it was a fact to be proved, yet it was *335not required to be proved by an eye witness. Unless contradicted, or explained, the evidence to implicate Unget', would seem to me almost conclusive. The illegal resurvey was all for Unger’s advantage, .or supposed advantage, and in no way for the advantage of •Galbraith, or of any other person. Unger claimed the ground thus taken in by the resurvey, and his devisee yet claims it. He owned the tract thus attempted to be enlarged; and on the first survey on Wiggins’ warrant, made, on' the 13th of August, 1795, Mr. Galbraith notes on the margin of the draft, the' land in dispute as the. property of Unger. '
It is said, there was no proof that- the book had been Mr. Galbraith’s, or of the hand-writing; and so it does appear from the record. But it is not denied that the -book had been before in evidence innumerable times , in the courts of Dauphin county, and three times in this same cause, without any question; and, that there was no call for proof of hand-writing. This part of the case would, therefore, seem to fall under the rule applicable to matters of practice, that.sometimes, what is not expressly denied is admitted; and, that to specify some objections to evidence, waives all objections not mentioned. ■ ■ , •
Judgment affirmed,