The court interrupted Mr. C. Smith who had begun to address the jury on the part of the defendant. They said there could be no possible difficulty in the present form of action. Possession was essentially necessary to maintain trespass; and this not being shewn to have been in the plaintiff, he could not recover. At the same time to prevent further litigation, the court would give their sentiments on the title.

Morris’s warrant was not shifted from its true place. It is true it was not peculiarly descriptive and special, but it would *219suit the present tract as well as other lands. Its generality was reduced to a certainty, by the survey said to have been made in 1766. The deputy omitting to return the survey into the office of the surveyor general, did not prejudice the plaintiff’s right. That principle only applies where the locality of the warrant or order is changed.

Mr. Duncan, pro quer.

It may be objected, that the survey in 1766, was really made for Enoch Davis, on another warrant. This is mere suspicion. We know nothing of a warrant in the name of Davis. Besides, this may be reasonably accounted for, supposing such a warrant to have existed. The deputy surveyor having made the survey, may have afterwards applied it to the eldest warrant. The survey thus made by the agent of the deputy is discovered to interfere with elder warrants and surveys, and consequently must give way to them. On the 21st May 1796, Canan makes a re-survey by order of the Board of Property, omitting parts of the old survey made for Morris, and adding other lands not included therein. So far as this omission goes, and so far as lands have been comprehended which were before surveyed for Hood, in May 1785, or for any other person under an intervening right, the plaintiff’s title must fail. But as to such parts of the land as were comprehended in the old survey, and were not dropped or abandoned by the re-survey, and as to such additions as were not theretofore surveyed under other rights, the title of the plaintiff ought so far to prevail, on every sound and legal principle.

The plaintiff immediately suffered a nonsuit.