was veyed an entry made in the name of a certain Mr. Logwood, which called to adjoin M'Conico's west line, he supposed he could find said M'Conico's survey; that he went in search of M'Conico's lines, but, not finding any, proceeded to lay off the complainant's 3,000 acres; and that he had since found, from the copy of M'Conico's entry, that the said 3,000 acres were not within 240 poles of said M'Conico's survey aforesaid. From other evidence it appeared that this discovery was made in the fall of 1796; after Cralle had given the money bonds, but before that for 1001. had become due. spondent demanded the complainant's bond that Betts, when he applied for the first to make a title to 300 acres, part thereof, mentioned bond, wanted his 300 acres laid agreeable to contract, which he then re-off in a certain part of the land where he fused to give; after which the complainant said there was to be a ferry place; that applied to the respondent for a copy of said Cralle refused to give the said bond until plat, and said that he would go out to Ken- Betts agreed to have them laid off in antucky himself, and, in case he should find other place; and that, after it had been the services aforesaid had been rendered, signed, the said Betts said that he had got he would, on his return, give his obligation the land in the very place he wished it, beto make a title to 300 acres of said land to ing the part to which Cralle had objected. the respondent; that a copy of said plat The deposition of John Tittle, the surwas accordingly delivered the complainant veyor, stated, that he was called upon by in 1795; that he went to Kentucky, and the defendant as agent for the complainant, (the respondent hoped to prove) viewed the to shew M'Conico's survey, and lay off and lines of the said land, and had the same survey 3,000 acres out of the same for transferred from M'Conico to himself, by 242 the complainant; that, *having surthe Commissioners in that country, and so well pleased that, shortly after his return to this State, (viz. October 28, 1795,) he gave his bond in the penalty of 3001. with condition to convey to the respondent a good and sufficient title to 300 acres, part of the said 3,000 acres of land, agreeable to the original plat which was then before him, specifying where to begin, and how to be extended for quantity; that there were only two witnesses then present who attested the bond; and, the contract being for land, the respondent supposed it necessary to have a third witness, and about three days after, applied to the complainant to reacknowledge said bond, which he consented to do; and, the third witness being called upon, and the bond produced by the respondent, to the great astonishment of the respondent, the complainant made a most indecent catch at the said bond, and tore nearly half of the same off, having his name on the part which he so disgracefully snatched away. The respondent, therefore, being about to commence a 241 suit against the complainant *for his conduct aforesaid, the said complainant agreed to give his two bonds, in the bill mentioned, for 1001. and 501., to the respondent, provided he would quit all claim to the said 300 acres of land; all which was immediately agreed upon; the bonds were executed, and the original plat delivered up to the complainant; that, about two days afterwards, the complainant was offered 501. cash more than he had allowed the respondent for said 300 acres of land, which he refused to accept, as he had previously viewed the said lands, and knew they were valuable. The defendant proved by the affidavit of John Knight, jun. that, in September, 1795, the witness was in the state of Kentucky, and accompanied the complainant and the same surveyor to see the 3,000 acres of land, said to have been surveyed out of Christopher M'Conico's survey; that the surveyor then said he had laid off the same at the instance of Charles Betts, attorney in fact for the complainant; that they examined the greater part of the corners and lines of the said land, and found them plainly and well marked: the complainant expressed himself much satisfied at the faithful execution of the business by his said attorney; so much so, that he had 400 acres (part of the said 3,000) laid off, which he had previously sold to a certain James Claughton then present. The witness heard nothing said in contradiction to the validity or legality of the said survey of 3,000 acres ; but understood it was generally believed by the neighbours to be a part of a large survey granted to Christopher M'Conico. Among the exhibits were copies of The respondent denied all fraud on his M'Conico's grant, for 14,137 acres, by cerpart; declaring that the copy of the grant tain metes and bounds expressed therein, furnished him by the complainant (the and of his obligation to Cralle, to make water-courses corresponding with the sur-him a title "to a certain tract or parcel of vey which he caused to be made) was all the guide he had in the agency intrusted to him; and concluded with praying a dissolution of the injunction. Sundry affidavits were taken which fully proved the circumstances set forth in the answer, relative to the complainant's executing, and afterwards snatching and tearing his bond for the 300 acres of land, and relative to his giving the bonds for 1001. and 501., "which were understood to be in full satisfaction for the breach of Cralle in tearing the above bond, and also full compensation to the said Betts for his services rendered the said Cralle in Kentucky;" but on Cralle's behalf, it appeared in evidence land containing 3,000 acres, lying and being in the County of Fayette," (from which Harrison County was afterwards taken,) in the District of Kentucky, and bordering on Main Licking Creek, being a but, on an appeal, the late Chancellor practicable. Nothing can discharge him, Wythe reversed their decree, with costs; but proving it to be impossible. and adjudged and decreed that Betts should refund the 1001. he had received, with interest thereupon from the time of such receipt until paid; that the injunction be made perpetual; that Cralie convey, with warranty, against himself, and claimants under him only, to Betts, at his costs, the said Cralle's right to 300 acres of land, part of the 3,000 acres certified by John Tittle to have been surveyed by him; and that Betts pay to Cralle his costs in the County Court: from which decree Betts appealed. Wickham, for the appellant. The testimony clearly proves that Betts did every thing in his power to secure the land. The fault, therefore, was in the surveyor; or, perhaps, M'Conico's land was ideal; for there is no evidence that it could be found at all. But, however this might be, Cralle was guilty of very improper conduct in snatching the bond out of Betts's hand, and tearing it. A compromise was afterwards made, which closed the previous transactions. It was agreed that Cralle should pay 1501. at several payments, in full compensation for tearing the bond, and also for Betts's services in Kentucky; and this compromise ought not now to be disturbed. There is no ground to impute to Betts any unfair conduct. He (as well as Cralle himself) was imposed upon by the surveyor; and, where there is no fraud, the equity on both sides being equal, the law should prevail. Besides, Cralle may still sue M'Conico for damages, if his land be really lost; or may maintain an action against the surveyor: but Betts has no remedy, ex244 cept against *Cralle. for the great trouble and expense which he incurred on his account. The decree was right, except that the Chancellor ought not to have given Betts the land: for he is not entitled to any thing. Wickham, in reply. The Chancellor's directing the 300 acres to be conveyed was a matter of moonshine; having himself decided that no such land existed. Mr. Cail sets off the improper conduct of Betts 245 against that of Cralle: *but there is no proof of any improper conduct on the part of Betts; nor even of any negliIt was his own interest to find the gence. land; for he was to have part of it. Cralle's own measure of diligence was a good rule to measure that which Betts was bound to He went himself to Kentucky, and exert. had the same land surveyed. The bond for the 300 acres was not a void act. The parties were able to bind themselves by their Mr. Call contends contract, and did so. that Betts committed a fraud in taking that bond; the condition being to make an absolute conveyance. But, the bond having been destroyed by Cralle, this cannot now be presumed in his favour: on the contrary, the bond should be presumed to have been in pursuance of the contract. Neither is there any proof that the money bonds were obtained by terror. Betts accepted them in bar of his claim under the for the trespass. How, then, can he have original contract, as well as in satisfaction the benefit of that contract now? The Chancellor ought, indeed, upon annulling the compromise, to have restored us to our original cause of action: but this he has not done. Friday, April 27th. nounced their opinions. The Judges pro JUDGE TUCKER. The circumstances of Call, contra, did not pretend to justify this case appear to be extremely hard. The Cralle's conduct in tearing the bond; but complainant appears to be a loser, without neither could Betts be justified in endeav- the fraud, default, or neglect of the defendouring to impose on him. According to ant, who seems to have proceeded to perthe terms of the original agreement, all form his undertaking to have the lands, that Betts had a right to, (the land being veyed with fidelity, and, as far as in him purchased of M'Conico, in Kentucky, surlost,) was his proportion of such damages* as might be recovered of M'Conico; but he lay, with prudence and discretion. The was certainly not entitled to the land, hav-county surveyor, ing not complied with the agreement on his part. The first bond, therefore, smells of imposition; being for an absolute convey 246 a sworn public officer, was, of all others, the person most proper to apply to, to point out and divide lands located in a wilderness. That the surveyor acted unfaithfully appears evident from ance of 300 acres of land which Betts was his own depositions. He imposed first not entitled to; and the last bonds were without any consideration at all. upon Betts, and afterwards upon Cralle Cralle's himself. It would seem to me that weakness and fear of being prosecuted for the bond which Cralle tore, being tearing the bond, are not sufficient reasons to bind him. There is strong reason from given by him and accepted by Betts for a the testimony to believe that M'Conico's Conveyance of lands therein particularly land, with due diligence, might have been described, was pleadable in bar of any acfound. If a man covenant to do a thing, the original contract, or for damages for tion or suit for a specific performance of he is bound to do it at all events, if it be the breach thereof; (except, perhaps, for Note by the Reporter. The original agreement, expenses incurred by Betts;) consequently, bearing date the 13th of March, 1794, (which was Mr. Call is mistaken in supposing Betts among the exhibits, though not described as a written contract, either in the bill or answer,) contained might still avail himself of that contract. a clause that in case the land could not be found, The second and third bonds, given when Betts was to have, in proportion of money and dam- the compromise took place, not only in full ages that Cralle might recover of M'Conico for his satisfaction for the 300 acres of land claimed non-compliance in making him a lawful title to the sald 3.000 acres of land, as 300 is to 3.000; and the said by Betts, but as full compensation to him Cralle was to bear the above proportion of the ex- for his services rendered, cannot therefore penses attending the laying off the said 3.000 acres be said to have been given without any of land, and other contingent expenses, in like pro- consideration. Cralle either has or may portion as 300 is to 3,000. have, the whole lands, now, if found; or, if they cannot be found, he has his action against M'Conico for damages. Of those damages Betts, under the original contract was entitled to a proportion; to which, as also to all other recompense for his trouble and expenses, he has by the compromise yielded all claim. I cannot think it competent to a Court of Chancery to set aside so many deliberate acts between the parties, and reinstate the original contract between them. I am therefore of opinion, that the Chancellor erred in reversing the decree of the County Court, and that his decree ought to be reversed, and that of the County Court established and affirmed. JUDGES ROANE and FLEMING, were of the same opinion. The decree of the Chancellor was therefore unanimously reversed, and that of the County Court affirmed. ment, from day to day until the business be finished, being expresssd in such notice? Nathaniel Frisbie against Almarine MarIn an action of trespass on the case by shall, in the County Court of Wythe, a com15th of June, 1796, to take the deposition of mission was granted the defendant on the Philip Dick, of the city of Philadelphia; and any three aldermen of the said city, to "and Benjamin Jones, William Kenner, take the same by consent of the parties:" and the same was granted the plaintiff. On the 11th of July, 1797, by consent of the parties, it was ordered that a commission issue to any four aldermen of the city of Philadelphia, and William Kenner," to take the deposition of the same witness. September 14th, 1797, the following order was entered: "Continued at the plaintiff's costs. And, by consent of the parties, order granted for new commissions to take depositions." A commission was issued, November 24th, 1798, "to Reynold Keen, gent., alderman of the city of Philadelphia, and John Gibson, William Rogers, Robert Underwood, and *David Denniston (any three of whom to act if the whole cannot) of the same city," &c. in the usual form. 1. Depositions*-Order Therefor – Presumption. — An The notice from Frisbie to Marshall, apsions to take depositions;" a commission issuing pointed "the house of Philip Dick, grocer afterwards "to R. K. alderman of the city of Phil-in Market Street, Philadelphia, on the 19th adelphia, and four other persons by name," not said to be aldermen, (and omitting W. K..) "any three of whom to act, if the whole cannot," should be presumed to have been directed to persons agreed upon by the parties, but whose names were omitted by the Clerk in entering the last order; no objection having been made, in the Court below, on account of any real or supposed variance between the first and second orders and day of December, 1798," to take the deposition, which was taken and certified in the following manner: the commission. 2. Same-Commission to Five Persons—Execution by One. A commission directed to five persons, ("any three of whom to act,") cannot be executed by one only: and a return, by one, that three others were present when the deposition was taken. is not sufficient. It should be certified by three, at least, who were present. 3. Same-Failure to Take at Place Mentioned in Notice --When Admissible Evidence.—A deposition, taken at a time and place not mentioned in the notice, may be read as evidence; an agent of the party to whom the notice was given, duly authorized to attend to the taking of such deposition, having appeared at the time and place appointed, and consented to a postponement to such other time and place. And if, in other respects, the commission be regularly executed and returned, the Court will presume from circumstances, that the person who gave the consent was the authorised agent of the party. 4. Same-Adjournment of Taking Thereof.-Quære, whether Commissioners appointed to take depositions can, "by their own mere authority, adjourn the taking thereof to any other convenient time and place, in the event that the business cannot readily be finished on the day, and at the place, to which the notice applies;" no intended adjourn *Depositions.-The Virginia and West Virginia cases pertaining to the subject of depositions are collected in a monographic note on that subject appended to Field v. Brown, 24 Gratt. 74. "Philadelphia, ss. By virtue of a commission from the Commonwealth of Virginia, issued, &c. to me Reynold Keen, one of the aldermen of the said city directed, I was called upon the 19th day of December, inst. by John Gibson, William Rogers and Robert Underwood, to go to the house of Philip Dick, in the said city, to take his deposition in an action now depending, &c. ; and William Jones likewise appearing on the part of the defendant; it was agreed by the said John Gibson, William Rogers, and Robert Underwood, the Commissioners in the said commission named, as well as on the part of William Jones, the defendant's representative, that the taking of the deposition be postponed to the 21st December, then for the greater convenience to meet at the office of the said alderman Reynold Keen. Whereupon, this said 21st of December, 1798, I have caused to come before me the said Philip Dick, in the presence of the said Commissioners, and in the presence of William Jones, the representative of the said defendant, and he the said Philip, being sworn, &c. did depose and say," &c. (here inserting his testimony; ing with the interrogatories sworn to and and concluding as follows:) "The foregosubscribed before Reynold Keen. P. Dick." On the 12th of June, 1799, 10th of April, 1799, and 12th of November, 1800, Juries were empanelled, but not agreeing, were discharged, the plaintiff having at the trials on the 10th of April, 1799, and 12th of November, 1800, offered in evidence the deposition taken as aforesaid, to which the defendant excepted, but his objections were overruled. On the 13th of June, 1800, a ver dict was found for the defendant, but a granted for new commissions to take deposinew trial awarded. tions. 249 *August 12th, 1800, a dedimus was granted the defendant to take the depositions of Philip Dick and William Jones, of the city of Philadelphia; but whether he ever took their depositions accordingly does not appear. A commission was issued on the 23d of November, 1798, directed "to Reynold Keen, gentleman, alderman of the city of Philadelphia, and John Gibson, William Rogers, Robert Underwood, and David Denniston, (any three of whom to act if the whole cannot,) of the same city, greeting, &c." A fifth Jury was empanelled the 15th of April, 1801, when the plaintiff again offered in evidence the same deposition; "and the This commission does not conform to the defendant by his counsel objected to the consent order. 1st. The name of William reading thereof, because, 1st. The commis- Kenner is not in it. And, 2dly. It is not sion was directed to five Commissioners, directed to John Gibson, and the other (any three of them to execute,) and it was three as aldermen, nor do they appear to subscribed, and from the face thereof, as have been aldermen. For, although the orhe contended, appeared executed by one der of the 11th of July, 1797, was not caronly; 2dly. It was not taken at the time ried into effect before the next term, I and place mentioned in the notice; and, consider the order of September 14 follow3dly. By no evidence other than the deposi-ing, not as revoking, but, as extending the tion itself did it now* appear that William time for the execution of it: and, conseJones was the agent of the defendant, or quently, that the commission ought to have had authority, either express or implied, to conformed to it. consent to the postponement until the 21st 251 of December, 1798, and to a different place. The Court overruled the defendant's objections; and permitted the deposition to be read to the Jury, who returned a verdict for the plaintiff for 120 dollars damages; and judgment was accordingly entered, which, on an appeal to the District Court, was affirmed; whereupon the defendant appealed to this Court. Wickham, for the appellant. 250 *Again, the deposition is certified only by Reynold Keen, and not by any other of the Commissioners, as it ought in my opinion. Both the commission, and the execution of it, being thus manifestly defective upon the face of them, the deposition ought not to have been read. The judgment, therefore, ought to be reversed; and a new trial awarded, with directions not to permit the deposition to be read on such trial. Hay, for the appellee. *Friday, May 11. The Judges pro- have been made to the reception of the depnounced their opinions. JUDGE ROANE. Several objections JUDGE TUCKER. The only question in this cause is, whether the deposition of one Philip Dick, taken in Philadelphia, by virtue of a commission from the County Court of Wythe, ought to have been read in evidence at the trial. osition stated in the bill of exceptions. It is first said, that there is no proof that W. Jones was the agent of the appellant; without which, it is also alleged, the deposition could not properly have been taken on the day and at the place in which it was taken. Several answers occur to this objection. In the first place, I apprehend that the Commissioners, by their own mere authority, could have adjourned the taking of the dep The act of 1792, 1 Rev. Code, c. 141, s. 13, authorizes the issuing of a commission directed to such Commissioners, not exceed-osition to any other convenient time and ing five, as shall be nominated and agreed on by the parties litigant. On the 15th of June, 1796, a commission was granted the defendant to take the deposition of Philip Dick; and Benjamin Jones, William Kenner, and any three aldermen of the said city were to take the same by consent of the parties; and the same was granted the plaintiff. On the 11th of July, 1797, by consent of the parties, it was ordered that a commission issue to any four aldermen of the city of Philadelphia, and William Kenner, for the same purpose. September 14, 1797, the cause was continued at the plaintiff's costs, and, by consent of parties, an order was place, in the event that the business could not readily have been finished, on the day and at the place to which the notice applied. In the next place, if it were necessary, and the execution of the commission were in other respects regular, I would presume that W. Jones was constituted by the appellant his agent, for the purpose of taking the deposition: I would presume this, because P. Dick was considered by the appellant himself as a material witness for him, as appears by the orders for commissions, granted at his instance, on the 15th of June, 1796, and 12th of August, 1800, and it is natural to suppose, that a man would appoint an agent to attend to the examination of a material witness: I would also easily presume that W. Jones was this agent, because (in addition to other considerations) a confidence in him may be in some degree inferred, on the part of the appellant, from his having considered him also as a material witness; having included him in the order for a commission of the 12th of August, 1800. *Note by the Reporter. In the former bill of exceptions. filed in April, 1799, the defendant alleged that William Jones did not appear to have been constituted his representative with authority to do any thing "except attend to the taking of the deposition." And in the bill of exceptions, filed the 12th of November, 1800, the same allegation was in substance repeated; the defendant contending that Jones had not an absolute authority, but only a power to attend at the time designated in the notice." On both those occasions a witness proved the defendant's acknowledgment that he had author- 252 ized Jones to attend to the taking of the deposition; the witness using in the first instance, the words **in his stead;" and in the last instance, the words **and to act as his agent therein." *Another objection (if I understood the counsel rightly) was, that there was a variance between the order for the commission, and the commission itself, in that the objection would be made had been previously and formally given. The principles of law must therefore prevail; and the appellee having deliberately stated his right to recover upon this, as an abstract question, he must submit to a decision upon it accordingly. this, that the former requires the latter to be directed to five aldermen, any three of whom are authorized to act, whereas it does not appear by the commission, or return, that more than one of the persons, to whom the commission under which the deposition was taken, was an alderman. That objection of variance applies, it is true, to My opinion therefore is, that the judgthe order of 12th of August, 1800; but it ment of the County Court is erroneous, in was not under that order that the commis- having admitted the deposition in question sion issued, but under that of 14th Septem- to go to the Jury, and that the judgment of ber, 1797, as appears by the date of the the District Court affirming it is also errocommission itself, it being the 23d Novem-neous; that both ought to be reversed, and ber, 1798; and it does not appear that that a new trial awarded, in which the said deporder of 14th September 1797, made alder- osition is not to be admitted in evidence. men indispensable, as Commissioners; and, JUDGE FLEMING. The only important as the arrangement for the commission was point in this cause is, whether the deposiby consent of parties, there is no ground to tion of Philip Dick, taken in the city of say that the commission in question is in Philadelphia, and read at the trial of the this respect objectionable. I consider this cause in the County Court, was legal eviorder of 14th September, 1797, and not those dence or not? of a prior date, as the one under which the deposition was taken; and that the former commissions were superseded by the latter, by which alone we are to be governed. 253 254 *The exceptions taken by the counsel of the defendant (the present appellant) were, 1st. That the commission under which the deposition was taken was directed to five Commissioners, any three of whom might act; and it was subscribed, and from the face thereof appeared, as he contended, executed by one only. 2dly. That it was not taken at the time and place mentioned in the notice. And, 3dly. That by no evidence other than the deposition itself, did it now appear that William Jones was the agent of the defendant, or had authority, either express or implied, to consent to the postponement until the 21st of December, 1798, and to a different place. No exception whatever has been taken by counsel with respect to the legal Courts in which the cause has been discussed. But a Judge of this Court, for whose opinions I have the highest respect, seems to think that the commission itself is too defective, in law, to authorize the taking of any deposition in virtue of it: but, being of a different opinion, I must first refer to the act of Assembly on the subject, and then notice some of the orders that had been made in the cause, previous to the date of the commission. I should, therefore, readily get over all these objections: but this commission is not returned as executed by more than one out of five Commissioners, contrary as well to the tenor of the commission itself, as to the general principles of law in relation to authorities. See 1 Bac. Abr. 319, (Gwill. edit.) and the cases there cited. It might be of dangerous consequence to sanction such a return as this; which would be as properly done in the case of twenty Commissioners as of five, and thus one dishonourable character might abuse his trust to the injury of the parties, and in opposition to the precautions they have taken to re-ity of the commission, in either of the quire the concurrence of a majority. The terms of this commission, which is directed to five by name, (any three of whom are, however, empowered to act,) in using the word "you" and omitting to use the expression "any of you,' are very emphatical to import, that the trust was *confided to, and can only be executed (which includes the return) by, the whole number, or, at least, the majority thereof. If this objection had never been taken in the Court below, or even if we were now considering it upon the first bill of exceptions, (and no previous notice of the objection on the part of the appellant had been given,) I will not determine that the objection ought to prevail: but the case is widely different at the present time. We are now acting upon the bill of exceptions exhibited on the 15th of April, 1801, when the case was on trial before the fifth Jury. The objection in question was not then taken for the first time: it had been taken on the 1st of April, 1799, and on the 13th of November, 1800, as appears by the several bills of exceptions of those periods. On the 12th of August, 1800, the appellant also obtained an order for taking Dick's deposition, which shewed he was not satisfied with the one formerly rendered. All these facts and circumstances shew an early and constant objection, on the part of the appellant, to the deposition in question: the appellee cannot, therefore, complain of surprise, and the case now comes before us as it would in relation to a first trial, if notice The mode pointed out, by the 13th section of the act of 1792, 1 Rev. Code, c. 141, for taking the depositions of witnesses residing out of the state, seems, in part, superseded, in the case before us, by the appearance and consent of the parties in Court; both of whom seem to have relied on the testimony of Philip Dick, whose deposition is now the subject of controversy. On the 15th of June, 1796, a commission was granted to the defendant to take the deposition of Philip Dick, of the city of Philadelphia; and Benjamin Jones, William. Kenner, and three aldermen of the said city to take the same, by consent of the parties; "and the same is granted to the plaintiff." 255 That commission not having been executed, on the 11th of July, 1797, by consent of the parties, it was ordered, *that a commission issue to any four aldermen of the city of Philadelphia, and William Kenner, to take the deposition of Philip Dick of said city. It does not appear whether a commission ever issued |