The opinion of the court was delivered by
Rogers, J.The rejection of the deposition of John Cannon? comes within the principle of Summers v. M‘Kim, 12 Serg. & Rawle 410. It is immaterial whether Orbison was concerned in the Conduct of the suit or not, as it appears he Was specially employed to take the deposition of the witness. There is as much danger from testimony taken under' such circumstances, as when the attorney is retained generally for the trial of the cause. Nor would it have altered the case, if Orbison hád been specially authorised to write the deposition. It is not competent for the justice to make the attorney of one of the parties his clerk, to take a deposition, unless with the express consent of the other jparty, or in the presence of his attorney, and acquiesced in by him. We concur in the sentiments of the chief justice, in Summers v. M'Kim, and feel no disposition to relax the rule established in that case.
The remaining exceptions apply to the charge. It is said the court were in error, in instructing the jury that they might presume an abandonment of the defendant’s right, under the application of Thomas Morris.
' It was in evidence, that on the 22d October, 1766, Thomas Morris made application for three hundred acres of land, to join westerly a survey on- a large run which leads into the east bra'nch of the Little Juniata, about a mile, eastward from the path that leads from Little Juniata to Susquehanna, in Cumberland county. It was submitted to the jury, as a question of fact, whether there had been a survey made on the ground, whether the survey had been returned, and if. not returned, the reason it was not. The court was requested-to say: that unless the jury had satisfactory *458evidence' that a survey was made by virtue óf the application of Thomas Morris, before the date of the warrant to Walter Hood, the law will presume the application to have been abandoned. That even if the jury are satisfied, that the survey wds made previously to the date of the warrant to Walter Hood, yet if no money was paid on the application but the fees of office, and no surveying fees were paid before the date of the warrant, and the survey mas not returned, the jury, under .the circumstances of the case, may consider the application and survey to have been abandoned. The court were further requested to charge the jury, that the doctrine of abandonment does not apply to a descriptive location, (which it was contended this was;) of the year 1766, actually surveyed in 1767, conveyed by deed poll in 1767, re-surveyed in 1796, on the order of the Board of Property of 1794, and patented in 1797.
It was given in charge to the jury, that an application and survey may be abandoned. That whether there was an abandonment or not, depended on the facts foimd by the jury; 'hut that payment of fees of office, of surveying fees, and returning.the survey, are facts tending to repel the presumption of abandonment. That if the application was obtained in 1766, and the land circumscribed by a survey marked on the ground, hut the owner of the survey refused to have it completed or returned, and refused on that account, to pay the surveying fees, and it continued in this way until 1785, when the warrant issued to Walter Hood, on which he made his survey, the latter would have a preference. < In this direction we perceive no error. On the contrary, the charge of the court is in accordance with all the cases, many of which have been cited and relied on in the argument of counsel. The transaction must be viewed as it stood in 1785, when Walter Hood obtained his warrant, and made his survey. It is only by shutting our eyes to the state of things at that point of time, that any difficulty can arise; for the real question' is, might the jury presume the application to have been then abandoned, or was Morris right in considering[the application abandoned, when he obtained his warrant. In 1785, as the jury-have found, although Morris had made an application for the land, and had made a survey, yet the survey had not been returned, because the owner of the survey had not paid the surveying fees. The failure to return the survey is not the fault of the deputy surveyor,'but arises from the act or neglect of the party himself, for the deputy surveyor, as has been decided, is not bound to return the survey until the surveying fees have been paid. It would have the most mischievous effect, if it were competent to an individual to put in an application on which he pays no' money to the commonwealth; with a description which may apply as well to other tracts, have a survey made upon it, and then by his own act or neglect, without any *459default In the deputy surveyor, withhold the return of survey for near twenty years. It would operate very much to the injury of the commonwealth, as it would enable individuals to obstruct the improvement of the country, by preventing the commonwealth from making a new grant of the land. Even a precisely descriptive warrant must be followed up with reasonable attention, in order to give title, from its date; so also the same course must be pursued on a vague warrant, to give title from the time of survey.If the owner of a vague or x-emoved warrant suffers it to remain unreturned, for more than twenty-one years, and during that time has exercised no acts of ownership upon the land, the State, or any person, has a right to consider it as dej-elict, and whoever purchases, and pays for the land, under such circumstances, has a good title. 1 Penn. Rep. 74, Chambers v. Mifflin. Mr. justice Huston, in delivering the opinion of the court, says. “Although a warrant has been .surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near; until it is returned, the State has no power to collect arrears of purchase money. It never can be, that a man can wait thirty or forty years, and all that time, be able to say, this is my land if I please, and not mine unless I please. I will take the land and pay the State for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement ; but I will not take it, and pay the purchase money, unless something occurs to render it more valuable. Nor is it the law* that a man can commence procuring a title, from the 'State, and from pure negligence leave it in such a situation, for more than twenty years, as that he is not bound to take it, and no one safely can.”
The plaintiff in error, relies upon the re-survey in 1706, on the order of the Board of Property, in 1794, and the patent in 1797; and this to be sure would be sti'ong evidence, that after 1785, the owner of the application would not wish to be considered as having relinquished title to the land. But it must be kept in view, that previously, to this time, the right of Walter Hood had intervened, and that nothing the plaintiff in error could have done afterwards* would effect that right. The question must be determined upon the titles as they stood at the time of the warrant and survey to Walter Hood.
Judgment affirmed.