declined giving any opinion, having made the survey under which the plaintiff claimed.

After argument by counsel, Yeates, J. charged the jury, that he knew of but three rules which were applicable to the present case.

1st. A plaintiff in ejectment must recover by the strength of his own title. 2d. Where there has been negligence in obtaining a survey, a warrant or location generally descriptive but vague in its terms, must give way to a subsequent warrant or location equally vague whereon a survey has been made, or to a subsequent precise warrant and location even without a survey, where it accurately describes the lands. 3d. Under the order of the Board of Property of the 1st May 1767,* the deputy surveyors * ®were not to return more than 10 per cent, beyond the 2I'J usual allowance for roads, on the quantity of lands contained in the warrant or application. But this only held where there was no conflicting right when the survey was made; for in such case the deputy was not permitted to exceed the quantity called for, with the allowance of 6 per cent, for roads. This was equal justice, and conformable to the settled practice of the land office. It had been pursued in the Circuit Court at Bed-ford in November i'8oi, in Elliot’s lessee v. Bonnet, where the jury were strongly disposed to find the surplus of 10 per cent, for the plaintiff. The second rule had been recognized by repeated decisions, and had become the settled law of the country.

The first inquiry with the jury would be, to ascertain whether the warrant of Brown was so described, as that it could be laid on no other place than on the premises in question. If it was vague and loose, then the verdict must be necessarily -for the *217plaintiff; but if it was close and precise, as the court strongly inclined to think, then the last rule would apply, and the plaintiff should be confined to his 130 acres and allowance on his warrant. This rendered it unnecessary to consider the right of deputy surveyors to extend surveys made on the ground before return. The case of Nicholas’s lessee v. Holliday, determined here in May 1802, was determined on the ground of the original mistake being made by the agent of Richard Tea, who directed an extension of the lines, and who claimed the additional lands so included.

The judge professed to go no further than was absolutely necessary in the decision of the case before the court; but he could not avoid saying, that this was a strong case in favour of a second purchaser under the warrantee. Viewing the matter in the strongest light against the defendant, here had at least been an attempt to make a survey in May 1765, and lines had been run on the ground. A return of survey operates as notice on a shifted warrant or application. This survey was returned into the surveyor general’s office in December 1766, and was known at the time of the plaintiff’s survey in December 1774. In the draft thereof it is stated in a N. B., the above “ survey takes “off part of the tract surveyed for Joseph Brown.” Consequently, there was an opposing claim known at the time, which ^confined the survey to the precise number of acres con- r* tained in the warrant. *-

Verdict for the defendant.