error, with the following description: "Beginning the survey at a
pecan (nogal) fronting the mouth of the aforesaid creek, which pecan
serves as a land-mark for the first corner, and from which 14 varas to
the north 59° west there is a hackberry 24 in. dia., and 15 varas to
the south 84° west there is an elm 12 in. dia. ; a line was run to the
north 22° east 22,960 varas and planted a stake in the prairie for the
second corner. Thence another line was run to the south 70° east, at
8,000 varas crossed a branch of the creek called Cow Creek, at 10,600
varas crossed the principal branch of said creek, and at 12,580 varas
two small backberries serve as land-marks for the third corner. Thence
another line was run to the south 20° west, and at 3,520 varas crossed
the said Cow Creek, and at 26,400 varas to a tree (palo) on the afore-
said margin of the river San Andres, which tree is called in English
'box elder,' from which 7 varas to the south 28° west there is a cot-
tonwood with two trunks and 16 varas to the south 11° east there is
an elm 15 in. dia. Thence following up the river by its meanders to
the beginning point, and comprising a plane area of eleven leagues of
land or 275 millions of square varas." The evidence showed that the
lines when run on these courses and distances, did not coincide with
ascertained monuments, either called for in the grant, or conceded to
mark the track of the survey of the tract made in 1833. Two marked
hackberry trees were found in 1854 in the eastern line, but not at the
point called for by the description. If the courses and distances were
followed, this grant covered most of the claim of defendant in error.
If the two hackberry trees found in 1854 were the ones described in
the grant, it would not include any of that claim. Held.
(1) That a request by defendant below (plaintiff in error), for an instruc-
tion "that a call for two small hackberries at the end of the distance
on the course called for, having no marks on them to designate them
from other trees of the same kind and having no bearing trees to
designate or locate them, is not a call for such a natural object as will
control the call for course and distance. And the jury are not au-
thorized to consider any evidence in this case about two small hack-
berries found by S. A. Bigham, and by him pointed out to various
other persons, which are found more than a mile from the point
where course and distance would place the S. E. corner of the 11-
league grant."
(2) That the jury should have been told that if the testimony was not
sufficient to identify the two hackberries with those called for in
the grant, and could not fix the northeast corner nor the back line
by any other marks or monuments, then they should fix it by the
courses and distances of the first and second lines of the survey,
except that the second line should be extended so as to meet the
recognized east line as marked and extended beyond the hack
berries." Ayers v. Watson, 594.
See MUNICIPAL BONDS, 8 (6).
1. The act of July 14, 1862, § 9, 12 Stat. 553, imposes, as a duty, "On all
delaines.
and on all goods of similar description, not exceed-
ing in value forty cents per square yard, two cents per square yard :
Held, That the similarity required is a similarity in product, in adapta-
tion to uses, and in uses, even though in commerce they may be
classed as different articles; affirming Greenleaf v. Goodrich, 101 U. S.
278. Schmieder v. Barney, 645.
2. The language of tariff acts is construed as having the same meaning
in commerce that it has in the community at large, unless the contrary
is shown. Swan v. Arthur, 103 U. S. 598, to this point affirmed. Ib.
1. A deed from an Indian chief to A, in 1856, of a tract described by metes
and bounds, and further as "being the iand set off to the Indian Chief
'Buffalo' at the Indian Treaty of September 30, 1854, and was after-
wards disposed of by said Buffalo to said A, and is now recorded with
the government documents," does not convey the equitable interest of
the chief in another tract described by different metes and bounds,
granted to the said chief by a subsequent patent in 1858, in con-
formity with the said treaty, in such manner that an action at law
may be maintained by A, or his grantee for recovering possession of
the same.
Prentice v. Stearns, 435.
2. The general rule in Texas for construing descriptions in grants of land
is that natural objects control artificial objects; that artificial ob-
jects control courses and distances; that course controls distance;
and that course and distance control quantity. Ayres v. Watson, 594.
S66 COURT AND JURY, 4.
DISTRICT OF COLUMBIA.
See JURISDICTION, E.
PRACTICE, 4, 5.
1. A certificate of division of opinion under § 652 Rev. Stat., can be
resorted to only when "a question" has occurred on which the judges
have differed, and where "the point" of disagreement may be dis-
tinctly stated. California Paving Co. v: Molitor, 609.
2. It cannot be resorted to for the purpose of presenting questions of fact,
or mixed questions of fact and law, or a difference of opinion on the
general case. гъ.
See CONSTITUTIONAL LAW, A. 2.
Bee CONSTITUTIONAL Law, A. 1, 2.
1. A bill which charges that the collection of an illegal tax would involve
the plaintiff in a multiplicity of suits as to the title of lots being laid
out and sold, which would prevent their sale, and which would cloud
the title to all his real estate, states a case for relief in equity. Union
Pacific Railway Co. v. Cheyenne, 516..
2. A court in equity has no jurisdiction over a suit based upon an equitable
title to real estate, unless the nature of the relief asked for is also
equitable. Fussell v. Gregg, 550.
See ACTION, 3.
JURISDICTION, A, 9;
LOCAL LAW.
VIRGINIA MILITARY DISTRICT IN OHIO.
WASTE.
1. No rule can be laid down in reference to amendments of equity plead-
ings that will govern all cases. They must depend upon the special
circumstances of each case, and in passing upon applications to
amend the ends of justice must not be sacrificed to mere form or by
too rigid an adherence to technical rules of practice. Hardin v. Boyd,
756.
2. In a suit brought by the heirs and administrator of a vendor of land
by title bond the bill alleged that the bond had been obtained by
fraud, and also, that the land had not been fully paid for according
to the contract of sale. Its prayer was, among other things, that the
bond be cancelled; that an account be taken of the rents and profits
which the purchaser had enjoyed, and of the amount paid on his
purchase; that the title of the complainants be quieted; and that
they have such other relief as equity might require. At the final
hearing the complainants were permitted to amend the prayer of
the bill so as to ask, in the alternative, for a decree for the balance of
the purchase-money and a lien on the land to secure the payment
thereof: Held, That no error was committed in allowing the amend-
ment. It did not make a new case, but only enabled the court to
adapt its relief to that made by the bill and sustained by the proof.
The bill, with the prayer thus amended, was in the form in which it
might have been originally prepared consistently with the rules of
equity practice. Ib.
See PARTIES 1, 2;
WILL, 4.
ESTOPPEL.
1. Questions involved in the determination of a suit in equity are not open
to re-examination, in any collateral proceeding between the same par-
ties or their privies, if the court rendering the decree had jurisdiction
of the subject-matter and of the parties. Bryan v. Kennett, 179.
2. A decree in equity, by consent of parties, and upon a compromise be-
tween them, is a bar to a subsequent suit upon a claim therein set
forth as among the matters compromised and settled, although not
in fact litigated in the suit in which the decree was rendered. Nash-
ville, Chattanooga & St. Louis Railway Co. v. United States, 261.
3. A decree in a suit in equity by the United States against a railroad
corporation in Tennessee, appearing upon its face to have been by
consent of parties, and confirming a compromise of all claims be-
tween them before June 1, 1871, including any claim of the corpora-
tion against the United States for mail service, is a bar to a suit by
the corporation in the Court of Claims for mail service performed be-
fore the war of the rebellion, although at the time of the decree
payment to it of any claim was prohibited by law, because of its
having aided the rebellion. Ib.
See MUNICIPAL BONDS, 3, 5.
1. In this case, before reported in 8 C. Cl. 501, 12 Id. 141, 13 Id. 322,
and 105 U. S. 671, the Court of Claims, 18 C. Cl. 470, awarded to the
claimants $16,250.95, for labor done and materials furnished by them
in constructing coffer-dams, and in performing the work necessarily
connected therewith, and preliminary to the mason-work for the piers
and abutments referred to in the contract. That court proceeded on
the view that the claimants had no right to rely on the testimony of
experts introduced by them, as to the value of the work, but should
have kept and produced accounts of its cost and expense; but it
gave to the claimants the benefit of the testimony of experts intro-
duced by the United States, as to such value, in awarding the above
amount: Held, That the claimants could not be deprived of reason-
able compensation for their work because they did not produce evi-
dence of the character referred to, when it did not appear that such
evidence existed, if the evidence they produced was the best evidence
accessible to them, and it enabled the court to arrive at a proper con-
clusion. Harvey v. United States, 243.
2. In a suit under the provisions of the act of the legislature of New York
of February 17, 1848, relating to manufacturing corporations, as
amended June 7, 1875, to recover of the trustees of a corporation
organized under that act the amount of a judgment against the cor-
poration, the judgment roll is not competent evidence to establish
a debt due from the corporation to the plaintiff. Chase v. Curtis, 452.
8. Holders of Government bonds must be presumed to have knowledge of
the laws, by authority of which they were created and put in circula-
tion, and of all lawful acts done by government officers under those
laws. Morgan v. United States, 476.
4. It is competent to inquire of a witness in a suit to recover back
duties paid under § 9 of the act of July 14, 1862, whether the words
"of similar description" is a commercial term, and if so what is its
commercial meaning; but it is not competent to inquire whether the
particular goods, alleged to have been improperly subjected to duty,
were of similar description to delaines. Schmieder v. Barney, 654.
5. A memorandum in writing of a transaction twenty months before its
date, and which the person who made the memorandum testifies that
he has no recollection of, but knows it took place because he had so
stated in the memorandum, and because his habit was never to sign a
statement unless it was true, cannot be read in aid of his testimony.
Maxwell v. Wilkenson, 656.
See CONFLICT OF LAW, 1, 2, 8;
COURT AND JURY;
MUNICIPAL BOnd, 3, (2).
See COURT AND JURY;
JURISDICTION, A. 7;
MUNICIPAL BONDS, 3 (6).
See ACTION ON THE CASE;
SALE ON EXECUTION.
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