Pollard V. Dwight. * 424 on the 9th of September, 1794, and that for 480,000 on the 10th of the same month, and that the extent of all the lines of the said surveys was more than 320 miles; and offered to prove by Erastus Granger, that the nearest part of the said lands to the office of the surveyor of Wythe county, was distant therefrom two days' journey, and that a surveyor could not, in that county, survey a line longer than seven miles in a day; and that he (Erastus Granger) had surveyed the land surveyed for Patterson, and found marked trees only for about three or four miles from the starting point of the survey, and two or three only of the first corners mentioned in the survey, and that the streams ran in opposite directions to those laid down in the plot; which testimony of the said Granger was offered to prove that Patterson's survey was fraudulent, and not made conformably to the laws of Virginia; and the plaintiffs further offered to prove, by the testimony of the said Granger, that there were prior claims upon the land in question to the amount of upwards of 90,000 acres. It was admitted that Granger was not a sworn surveyor. The defendants objected to the above evidence, but the court overruled the objection, and suffered it to go to the jury. The defendants sued out their writ of error to this court, and the errors assigned were, 1. That the plea to the jurisdiction ought to have been allowed. 2. That the evidence stated in the bill of exceptions ought not to have been admitted. 3. That the declaration is insufficient. 4. That the title of the land could not be tried in Connecticut. 5. That the circuit court had not jurisdiction, the plaintiffs being citizens of Massachusetts and Connecticut, and the defendants citizens of Virginia, not found in the district of Connecticut. *6. That the judgment ought to have been rendered for the defendants. C. Lee, for the plaintiffs in error. This is a prosecution against an absentee for breach of covenant. The act of Connecticut only authorizes such process against a debtor, not against a man who may be liable for The unliquidated damages on a breach of covenant. cut. Two questions arise in this cause. 1. Whether the circuit court had jurisdiction; and, 2. Whether the evidence stated in the bill of exceptions was admissible. 1. The law is the same in this case on the point of jurisdiction, as if the suit had been originally commenced in the circuit court. Laws U. S. vol. 1. p. 56. s. 12. and by the 11th section of the same act, the circuit court has no jurisdiction but over inhabitants of the state, or over persons found therein and served with process. Vol. 1. p. 55. Process by attachment on effects of persons not inhabitants, cannot be maintained in the circuit courts of the United States. 2 Dall. 396. Hollingsworth v. Adams. Ca And A plaintiff may assign for error the want of jurisdiction in that court to which he has chosen to resort. pron v. Van Noorden, (ante, vol. 2. p. 126.) Beecher's Case, 8 Co. 59. Bernard v. Bernard, 1 Lev. 289. in the case of Diggs and Keith v. Wolcott, in this court, at last term, (ante, p. 179.) the appellants had removed the cause from the state court to the circuit court, who decreed against them, and on their appeal to this court *the decree was reversed for want of jurisdiction in the circuit court. Where the court has a limited jurisdiction, the facts which bring the case within that jurisdiction must appear on the record. 9 Mod. 95. 3 Dall. 382. Bingham v. Cabot. 2 Cranch, Wood v. Wagnon. Upon the demurrer to the plea to the jurisdiction, the whole record is open to examination; and the defendant may avail himself of every substantial objection to the declaration, or to the writ, as it is made a part of the record. The declaration itself shows that the lands which are the subject of the covenant are in the state of Virginia; that the deed was there executed; and that the title of those lands is drawn in question. It appears, then, upon the face of the declaration, that the action is local, and can be tried only in Pollard Dwight. * 425 Pollard V. Dwight. * 426 Virginia. The declaration also states Pollard and Pickett to be "of the county of Henrico and state of Virginia," and that they are "absent and absconding debtors ;" and, therefore, the circuit court was excluded from the cognisance of the case by the 11th section of the judiciary act of 1789, vol. 1. p. 55. The declaration is also defective in not averring an eviction, or a better title out of the plaintiffs in error. 1 Williams's Massachusetts Reports, 464. Emerson v. Proprietors of Minot, 4 T. R. 620. But the plea in abatement ought to have been allowed. The act of congress of March 3, 1803, (vol. 6. p. 315.) enacts, "that the circuit court of the second circuit shall consist of the justice of the supreme court residing within the third circuit, and the district judge of the district where such court shall be holden;" and by the act of 29th of April, 1802, vol. 6. p. 88. it is “ provided, that when only one of the judges, hereby directed to hold the circuit courts, shall attend, such court may be held by the judge so attending." The 5th section of the same act provides for the allotment of the judges among the circuits, in case of a new appointment of a judge; but makes no provision in case of a vacancy. *There can be no circuit court in the second circuit, unless there be a justice of the supreme court allotted to that circuit. If the circuit court is to consist of a particular justice of the supreme court, and a district judge, it cannot exist without such a justice of the supreme court. A whole consists of all its parts. If any part be wanting it is not a whole. A session of the court may be holden by one judge, but the court must be in existence. Whenever there are not two judges of the court in existence, its functions are suspended. 2. As to the bill of exceptions. The papers said to be copies of surveys for Nicholas, ought not to have been admitted in evidence. Nicholas was no party to this suit, and even if there had been evidence that such surveys were ever made, and that these were true copies, they could not be evidence in this cause. The testimony of Erastus Granger was inadmissible. He was allowed to testify that he had surveyed the land, and that there were prior claims upon it to the amount of 90,000 acres. If he ever made such survey, it was ex parte, and as the agent of the appellees. Ex parte surveys are inadmissible evidence as to boundaries. 2 Lord Raym. 734. Bridgemore v. Jennings. Illegal or improper evidence, however unimportant or irrelevant, should not be confided to a jury, because it may mislead them. 2 Wash. 281. Lee v. Tapscott. Parol testimony is incompetent to invalidate a title to lands in Virginia, which is to be decided according to the laws of that state. Unless the prior claims were founded upon deeds or writings, they could not be set up against a patent from the state; and if they were founded upon deeds or writings, they ought to be produced. No lands in Virginia can pass or be conveyed but by deed in writing, acknowledged or proved, and recorded. *Martin, on the same side, in support of the objection that the declaration did not aver an eviction, cited 1 Mod. 292. 1 Saund. 58. 3 Wentworth, 440. 2 Mod. Intrandi, 206, 207. 1 Harris's Entries, 526. 531. Harper, contra. According to the decisions of the courts in Connecticut, a foreign attachment will lie for damages on a breach of covenant. The distinction is only taken between debts and torts. What is not a tort is a debt, within the meaning of their act of assembly. 2 Swift, 177. According to the mode of surveying lands in Virginia, by the 23d section of their land law, it is impossible to execute the surveys in the time which intervened between the dates of the entry and of the survey. The evidence offered was to show that the survey was fraudulent. It was to show that surveys, said to be made in eight days, could not have been made in eight weeks. The The bill of exceptions states the papers to be copies of the surveys, and, ex vi termini, a copy means a true copy; for if it be not a true copy, it is no copy. objection was not that they were not copies, but that copies of such papers were not admissible evidence. Poll ard V. Dwight. * 427 Pollard V. Dwight. * 428 The testimony of Granger was to show that the land was included in prior surveys. It was a necessary link in the chain of proof to show title out of the plaintiffs in error. It was not necessary to aver or to prove an eviction. The case in Williams's Reports is upon a covenant to warrant; which is, in effect, a covenant for quiet enjoyment. So was the case in 1 Mod. 292. In the case from Saunders, the covenant was that he was seised. It is true that proof of eviction is one mode of showing a want of title, but it is not the only mode. In Horsford v. Aggard, Kirby's Rep. 3. it is decided that eviction is not necessary to recover on a covenant of seisin. If the plaintiff can show that the defendant had a defective title, it is sufficient. What use would there be in a covenant of seisin, in addition to the covenant of warranty, if the former requires the same evidence as the latter? Martin, in reply. If the papers offered were copies, it does not appear that the originals could not be had. After Pollard and Pickett had produced a grant under the state of Virginia, the plaintiffs below must have shown a better title in some other person, (Cro. Fac. 304. Salman v. Bugshaw.) but they only attempted to prove irregularity in the survey. The patent gave a good title, even if there had been survey. The surveyor himself could not have been mitted to contradict his certificate. It does not apPear how long the surveyor was employed in making the survey. It could only bear date on one day, and whether that was the day on which he began or finished it, does not appear. It is no evidence of fraud. Mr. Martin declined arguing the points respecting the jurisdiction, and the form of the declaration, as the court seemed strongly inclined against him; but he thought it a fatal objection to he declaration that it did not aver an eviction; and that the action was local, and not transitory. |