#### JOHN ELLIOTT *vs.*NEIL McKAY, *et. al.*

A and B were tenants in common of a tract of land. A, with the sanction and assent of B, employed a surveyor to run the boundaries of their land, and in doing so, A, accompanied by the surveying party, committed a trespass on an adjoining tract; *Held,*that B was equally liable for such trespass.

.ActioN of Teespass, q. c. f.,'tried before PeesoN, Judge, at the Special Term, (June,' 1856,) of Cumberland Superior Court.

The plaintiff showed title to, and possession of, the field in which the acts complained of were done.

The defendants claimed to be tenants in common of 1690 acres of land, and read a grant for the same to John Gray Blount, dated in 1Y89, but did not connect themselves in any way with Blount, or show any possession at the time of the alleged trespass. This grant lapped upon the land covered by plaintiff’s title, but not so as to include the field. It was proved by one McNeil that the defendant Withers employed him to survey the Blount land; that McKay had nothing to do with his employment, so far as he knew. On a day appointed they met, when Withers said they could not go on with the survey without seeing McKay, (the other defendant.) *60He sent a messenger to Mm, who brought back word for them to go on with the survey. They then proceeded, and McKay came to him on the next day in the woods, and continued with them during the remainder of that day. During the time he was with them, some difficulty arising as to the course of a line, he produced papers from his ¡socket by which the matter was set straight. During this time also, McKay offered to lease part of the same land, claiming to own one-half of it. When McKay parted with them he left no instructions about the survey; this was late on Saturday evening. On the Monday following, Withers, with himself (McNeil) and others, went on with the survey, and at a short distance from where they had stopped on the Saturday evening before, they entered the plaintiff’s field and set up a stake as a corner.— They also marked some trees. '

There was no exception to the charge, as to Withers, but McKay’s counsel prayed the Court to instruct,

1. If McKay merely gave his consent to Withers to make a survey of the Blount grant for his (Withers’) benefit, and on his account only, that McKay would not be liable for his acts.

2. If McKay authorised the survey for his own benefit, that even'then, he would not be liable for the acts of Withers done in his absence, upon the land of the plaintiff, at a place where the Blount grant did not lap upon it, although these acts were committed by mistake, and not wilfully, in the prosecution of the survey.

The Court gave the instruction first above asked, but refused the second; for this the defendant McKay excepted.

Yerdict for the plaintiff. Judgment and appeal.

*/Shepherd,*for plaintiff.

*Kelly,*for defendants.

Battle, J.

The only exception assigned by the defendant McKay, in his bill of exceptions, is that the presiding Judge refused to charge the jury “that if McKay authorised the *61survey for bis own benefit be would not be liable for tbe acts of "Withers (bis co-defendant) done in his absence upon tbe land of tbe plaintiff, at a place where tbe Blount grant did •not lap upon it, although these acts were committed by mistake, and not wilfully, in the prosecution of tbe survey.”

Tbe case states that no exception was taken to the charge as to Withers. We understand from this, that his liability for the trespass committed upon the plaintiff’s land in making the survey, is admitted. If this be so, and we see no reason to doubt it, we are unable to discover any difference in the principle applicable to his case and that of the defendant McKay. They were equally interested in the land surveyed and in the survey. It is true that McKay was not active in employing the surveyor, but he certainly acquiesced in it, and assisted actively in making á part of the survey. ITe was not present, indeed, on the day when the trespass was committed, but he knew that the survey was to be prosecuted and did not countermand it.

But it is said for him that the surveyor was the officer of the law, and he was not, on that account, responsible for the acts of one whom he had no right to control. It does not appear that the person employed'was the County surveyor, and therefore that reason fails. But if he were the County surveyor, nothing iá shown to make it compulsory upon the defendants to employ him rather than any other surveyor. But if that were conceded, the conclusion which the defendant McKay wishes to draw from" it does not necessarily follow. It is certain that a sheriff is an officer of the law, and the only one whom a party can, in many cases, employ to levy an execution; yet a plaintiff may be liable who goes with him or gives him directions, and by mistake he seizes the goods of a wrong person. The fact is, that the surveyor was acting as much for the one defendant as the other; because they were both interested in the land surveyed, and though in different ways, they both assented to the survey. The surveyor was acting under the express or implied directions of both, and they are equally responsible for his acts, and for the acts of *62each other, done in the scope of the business. There is no error.

Pee Curiam. Judgment affirmed,