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Smith v. Jackson ex dem. Allyn.

received affidavits to establish the truth of the averments; for by the express terms of the statute, such amendments only are to be made, either in the Court where the judgment is given, or to which the record is removed by writ of error, as are not against the right of the matter of the suit, nor whereby the issue or trial are altered. And this is evident, from the course adopted in the case of Pease v. Morgan. The note on which suit was brought was drawn by one of a firm; but in the declaration it was alleged to have been made by the two, without any averment of the partnership. The Court decided, that the note was not admissible in evidence, without an averment of the partnership, and that the judgment must be reversed, unless the defendant in error would have the necessary amendment made on certain terms, viz. To pay all costs in the Court below after the declaration, with leave to the plaintiff in error to plead anew, and a venire de novo to issue. And the Court expressly admitted, that this was going farther than any case had as yet gone.

Had the Court adopted the rule which the District Court pursued in the present case, the amendment would have been made, and affidavits admitted to support the averment, without directing a venire de novo to be issued. The Court doubtless considered, that a jury must pass upon the fact contained in the averment.

So, in the present case, the averment that the defendant was a citizen of New-York, was a material averment, and upon which the defendant might take issue, and was proper matter for a jury. As to the question of the value of property in dispute, I do not see why the same rule should not prevail; it is matter essential to give jurisdiction to the Court, and a fact that might be put in issue, and which must be proved. It would seem, however, from the case of Den v. Wright, that after verdict in ejectment, affidavits were admitted as to b 1 Peters, 73.

a 7 John. 468.

Smith v. Jackson ex dem. Allyn.

the value of the property. Were it necessary to decide this point, I should reluctantly yield my assent to the doctrine of this case. But if affidavits are admissible, it must undoubtedly be before final judgment is given; and the case of Den and Wright goes no farther. The practice of the Supreme Court, in admitting affidavits of the value of the matter in dispute, in order to sustain its jurisdiction on writs of error, does not apply. That Court has no other mode of ascertaining the value. But admitting that affidavits might have been received by the District Court as to the value of the property, at a proper stage of the cause, no authority or practice has been shown that affidavits are admissible to prove that the parties were citizens of different states. And numerous cases have occurred in the Supreme Court where this would most likely have been done, if such a course had been deemed proper. I am accordingly of opinion, that the amendments in the District Court were improperly made, and that no certiorari ought to be allowed to bring them up as a part of the record in this cause.

The motion to set aside the judgment of reversal must, therefore, be denied.

Jackson ex dem. Havens v. Sprague.

JACKSON EX DEM. HAVENS v. Sprague.

Where the quantity of a tract of land is given as well as the metes and bounds, the latter will control the location, although they contain less than the given quantity, if they can be ascertained with certainty.

And this rule applies in all cases, whether the lands have been surveyed or not. As where land was granted to be run upon a given base, which had never been surveyed, but could be ascertained from a known point, and parallel lines were to be run from each extremity of the base, until a certain quantity was obtained, but a portion of the base had been cut off by a prior grant so as to narrow the extent between the parallel lines, it was held, that the lines could not be continued, in order to make up the deficiency out of the lands of the grantor, beyond the limits which they would have reached, to make up the quantity, if the base had remained undiminished.

Where the different parts of a description of the metes and bounds are repugnant and contradictory to each other, such parts are to be rejected, and such retained as will leave enough plainly and clearly to designate the land intended to be conveyed.

THOMPSON, J. THIS case comes up on a writ of error to the District Court for the Northern District of this state. And the question presented for consideration arises out of a special verdict, upon which judgment has been given for the defendant.

The result depends entirely upon the construction and location of the deed from Robert Morris to Andrew Craigie, of the 6th of April, 1797, under which the lessors of the plaintiff claims. The description of the land conveyed by this deed is as follows: "Beginning at the southwest corner of a certain tract of land of one hundred thousand acres granted to Craigie, Watson, and Greenleaf, on the 18th of February, 1792, thence extending east along the southern boundary of said tract six miles, thence southerly so far, as by lines to be drawn from those two points, parallel to the eastern and western boundaries of the said one hundred thousand acre tract, will include therein the quantity of thirtythree thousand seven hundred and fifty acres of land." This

Jackson ex dem. Havens v. Sprague.

deed recites an agreement made on the 5th of August, 1795, between the parties, by which Morris covenanted to convey a tract of land corresponding in description with that contained in the deed.

Morris, by a deed bearing date the 27th of February, 1793, had conveyed to Leroy, Sincklair, and Boon, a certain tract of land, which cut off two miles in width along the western side of the tract conveyed to Craigie, comprising eleven thousand six hundred and ninety-four acres. And the real question in the case is, whether the location of Craigie's deed can be extended south so as to make up this deficiency. When the agreement of the 5th of August, 1795, was entered into with Craigie, Morris owned the land south of the tract covenanted to be conveyed; but on the 1st of May, 1796, before the deed was given, he conveyed that land to Samuel Ogden, under whom the defendant claims, and proved title to the premises in question, as found by the special verdict.

case.

Whatever claim the lessors of the plaintiff may have upon the covenants in the deed to Craigie, for an indemnity for this deficiency, there is no principle of law that will uphold a construction of the deed extending it so far south as to make up the deficiency, so as to entitle the plaintiff to recover in this There is no uncertainty in the description, nor any part of it, which can be rejected, so as to favour the plaintiff's construction, even if Morris now owned the land on the southern bounds of the Craigie tract. A Court of law has no authority by way of compensation to substitute one tract of land for another. But the legal title of Ogden, under whom the defendant claims, is older than that of Craigie. What a Court of Equity would do as between Craigie and Ogden, if the latter had notice of the articles of agreement of the 5th of August, 1795, cannot now be taken into consideration.

But if no impediments, growing out of the rights of third persons, were presented against the plaintiff's claim, there is

Jackson ex dem. Havens v. Sprague.

no principle of law upon which it could be sanctioned. The place of beginning in the description of the land, appears from the deed and the finding of the jury, with so much certainty and precision, that it cannot be rejected. And when this is once fixed, the residue of the location is plain and simple, admitting of no doubt. It begins at the southwest corner of the one hundred thousand acre tract, granted to Watson, Craigie, and Greenleaf; and the jury have located this tract, as laid down on the diagram set out in the special verdict, and about the correctness of which there does not appear to have been any question. All the deeds and conveyances set out in the special verdict were given without any actual survey. But in one of them reference is had to a certain Indian deed, and an Indian village, which must have been a place of public notoriety; and which afforded a point from which the location of the one hundred thousand acre tract could be ascertained. Assuming then, as I think I am warranted in doing, that this tract is correctly laid down on the diagram, the grant to Craigie must be located in reference to that. is to extend along the southern boundary of that tract six miles so as to make the same width; and then from the extremities of this six miles line as a base, lines are to be extended so far south as to include the thirty-three thousand seven hundred and fifty acres.

In this description there is no ambiguity nor uncertainty. It was said, however, that the description requires these extended lines to be parallel with the east and west bounds of the one hundred thousand acre tract, and which could not be the case if it was a mere extension of those lines. This is undoubtedly mathematically true. But this part of the description may be rejected as repugnant to other parts, consistently with the soundest rules of interpretation. Whatever is repugnant and contradictory may be rejected, if enough is left plainly and clearly to designate the land intended to be conveyed.

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