but that where circumstances exist that tempt to fraud, the suspicion is not resisted by a consideration of the total absence of all motive. That it is in contemplation of law a fraud, I infer, because it is against the express words of the act, and against the reason and policy; and in its nature must work an injury. What notice can any one get from the description of most warrants, though entered in a book of the surveyor of the district? What notice from the return of a survey? It is the marks on the ground that a settler will look for. These he has a right to have, and of these he is bound to take notice. The age of the survey can be distinguished; and will a settler be bound to read a survey in appearance years old, as one which had been recently made? It will prove to him that no survey has been made which can correspond with the existence of the warrant. His conclusion must be that there is no survey. The considering the entry of a warrant in the surveyor's books as a notice of the ground which it calls for, is assuming that the warrant contains a particular description of the ground. This is required by the act of assembly under which the warrant issued, and where, agreeably to the act, the warrant contains a particular description, it may come near to all the notice of a survey. But even there it cannot separate the tract from the common stock precisely, and it is only a survey that can do it. This the purchasers are interested in having, and have a right to call for. The act has prescribed a particular description in the application; it has prescribed an entry with the surveyor of the district, an actual survey on the ground. The land office has admitted, in many instances, applications without a particular description, and the entry of the warrant in the surveyor's books gives no notice. This furnishes an additional reason why the provisions of the act shall be respected in regard of going on the ground.

By an act of assembly of the 12th of March, 1783, a district of country was surveyed and returns made into the surveyor general's office with a view to a sale, but which as to a portion of the tract surveyed did not take place, so that a number of the lots so surveyed, remained on hand. At the

opening of the office, April 3d, 1792, for the sale of the lands, west of the Ohio, and comprehending this district, it fell into the common mass and was for sale, not under the act of March, 1783, but under the new act of 1792. These lots not to be sold at vendue, and as they had been surveyed in lots of 200 or 300 acres, but made subject to the new law, and the conditions warranting and the returns of surveys made under the law of March, 1783, were in the office as of that date. The marks on the trees were of that date. Could any settler entering under the act of April, 1792, ever dream. that marks on the ground, made nine years before, could be considered as a survey lately made. As between the warrantee and the commonwealth, such return of survey might not be void; but it is impossible for me not to hold it voidable where a third person is affected. Even if notice were brought home to a settler of the circumstances of the case, I should not think he was bound to take notice of the acceptance of such returns; for the surveyor general had no power to take such surveys off the file and attach them to a warrant. But the contrary of this would seem to have been determined by a majority of the court; and in contemplation of law the majority must be right. But the minority owe it to justice to dissent; and in the construction of a statute especially. In the language of Justice Chambre, 2 Bos. and Pul. 403, "where I find no ambiguity in the act, and think that the act has not been expounded, but contradicted, I feel it my duty to adhere to the authority of the statute." I can have no doubt but that under the act of assembly a survey returned without going on the ground is voidable; and a survey made even by going on the ground before the warrant comes to hand, is void. The inclination of my mind is to hold them void in both cases. For that I take to be the true construction, if not according to the strictness of the term in both cases, it is according to the intention of the act. I admit that the first clause may be considered directory, the not going on the ground; and the return only voidable; for the arrangement of the words, may bear a distinction.

A source of litigation with regard to lands lying west of the Allegheny river, was the conduct of the secretary of the land office in admitting applications.

The law of the third of April, 1792, provides that "upon the application of any person who may have settled and improved, or is desirous to settle and improve a plantation, to the secretary of the land office, which application shall contain a particular description of the land applied for; there shall be granted to him a warrant for any quantity of land not exceeding 400 acres." This restriction respected the quantity of land that was to be put into any one warrant, but not the number of warrants that any one might take out. The object was to secure reasonable fees to the commonwealth, and towards the support of the land office, making many, and therefore small grants. But it was construed that no man should have more than one warrant in his own name. Hence the expedient of the names of friends, or fictitious names, and the necessity of conveyances from these increasing the expences of the grant, by conveyancing, and recording which the law did not contemplate, or render necessary; it was the oversight, or misconstruction of the land office.

But this was a small matter compared with the monstrous error which accompanied it, the construction of the preceding clause of the section; the application "containing a particular description of the land applied for." Did not this imply such a description as to distinguish it from all other lands, and which no one could make who had not traversed it, and taken some natural boundary, or designated it by an artificial? Yet after what is called a leading location, others were admitted as describing by reference; thus, an application for a tract of land at the mouth of a certain river, and for another adjoining, and a third adjoining that, and so on to the end of the chapter. Such applications could be made, and in fact were made, and admitted, from a map, or even without a map; many just from the name of a stream which from the relation of a traveller was said to run through the country. Hence the number of applications filed the first

day of the opening of the office. The whole country was applied for in an instant; nay a greater extent of country would not have satisfied the applications that were filed. No man meaning to settle bona fide, could obtain a warrant for a tract that was not anticipated by a pretence of application under this admission of the land office. It was a fraud in the first instance upon the public, and the intentions of the law. This through the ignorance of the secretary of the land office, who admitted the applications. The Governor was in fault that did not on this great and momentous occasion attend to it; or perhaps he misconceived the thing himself, and gave countenance to the error. But hence the intention of the law ' has been in a great part defeated. This intention was, in a great part, the accommodation of the settlers, and the settlement of the country. But what is perhaps a more lasting evil, hence has arisen the endless litigation and insecurity of title in the country. Such is the value of mind, whether in discernment or application. A touch of a finger at the end of a lever moves a great weight. A small matter of care and judgment at the beginning of a purpose, changes the event of great undertakings.

Speaking of the unwarrantable and mischievous indulgence of the land office, in admitting applications in the case of the law of April 1792, I am not calling in question the titles derived under them; but regretting the admission as contrary to the contemplation of the law, and an injury to the purchaser. It has been of incalculable evil consequence. Innocent foreign purchasers especially have reason to complain.

The juror's oath altered by act of 21st March, 1806. (Pennsylvania Legislature.)

BY an act of assembly of the 21st March, 1806, it is enacted that the oath or affirmation to be administered to jurors, viz. "I, A. B. do swear (or affirm as the case may be)

that I will well and truly try the issue joined between C. D. plaintiff, and E. F. defendant, and a true verdict give according to the evidence, unless dismissed by the court, or the cause withdrawn by the parties." It has been the subject of merriment with scientific men out of the state, that the legisla ture should have thought such a qualification of the oath of a juror necessary. But it is because the legislature thought it necessary otherwise than in accommodation to the scruples of weaker and more uninformed jurors. For it is known that in administering the oath according to the form heretofore used, the courts had oftentimes a great deal of trouble in explaining to conscientiously scrupulous persons, or those who affected to be so, which was the most common case, the notice of the exception implied in all undertaking to do an act, that if a stop was put to the doing the act, and it ceased to be required of them, they were not bound to do it, but were discharged from the obligation. Thus if A promises to marry B, but B refuses, A is discharged. If A contracts to build a house for B, and B says he will not have it built, A is discharged. An oath to give a verdict, implies a willingness to take it on the part of those to whom it is to be given. A verdict cannot be given but to a court that is willing to take it. Nor will a court take it but for the use of parties in a suit. It is therefore implied in the nature of an undertaking to give a verdict, that a court for the use of one or other of the parties, or both, is willing to take it. There is nothing undertaken to be done in human life, but the undertaking is accompanied with this tacit condition, that it remains physically, or morally possible to do it, or that those for whom it is to be done, are willing to have it done. When a candidate shall have been elected, or appointed, and is sworn into office, his oath is to execute the trust; is it necessary for him in order to satisfy his conscience, to have this saving that he will enact it, unless the office is taken from him, to which he has been so elected, or appointed? The truth is, it is a laughable matter to well informed men; but as a scruple of this kind had got a footing in common understanding, though where, and whence it originated, it is difficult to conceive,