1816. dence at large, states generally the weight of it, and that it NOVEMBER, proved so and so, I consider it as tantamount to, and in effect, a case agreed, as to such facts so stated to be proved. (a.) Hollingsworths V. Dunbar. (a) Ross v. Gill, All the facts in this case, which are in the smallest degree explanatory of the situation of the subject matter of the contract, and of the knowledge of the plaintiffs of that situation, i Wash. 90. at the time it was entered into, are to be found in the written documents, or in the facts so stated to be proved. The deposi tion, stated in the Bill of Exceptions, goes altogether to the actual want of water, and the probable loss occasioned thereby, and to the fact that if the Forge or Winchester's Mill had stopped, there would have been water enough; on which latter point there is a contrariety of testimony, the defendant's witness swearing that there was not water enough in the river for the Falls Mill; so that, had the instruction been given as asked, this point was still open to the Jury, who, (if they believed the defendant's witness,) might, nevertheless, have found for him; and therefore the instruction was asked hypothetically as to this point, and which is also reserved for the Jury alone, as well by the nature of the testimony, it having no relevancy to the point submitted, as by the manner in which it is mentioned in the Bill of Exceptions. But if there had been a contrariety as to the other facts, as, for instance, whether Winchester's Mill and dam were in existence at the time of the contract, or whether that was known to the plaintiffs, still I think it would be competent to the parties, and that it is the constant practice, to apply to the Court to instruct the Jury that, if they shall be of opinion, from the evidence, that the fact is so and so, then they ought to find in a certain way. It would seem to me, that great inconvenience and injustice would result from the negative of these propositions. The parties cannot be compelled to agree a case, nor can a Jury be forced to find a special verdict; and in the very case before us, wherein there was a contrariety of evidence as to one point, which a Jury alone can weigh, a demurrer to evidence would have been improper. In all such cases, the party would be deprived of the legal knowledge of the Court, and of his privilege to bring his case finally before this tribunal. I cannot perceive how the case of the construction of a covenant, that is to say, what was the true meaning and inten NOVEMBER, tion of the parties thereby, can differ from other cases; unless, 1816. indeed, it is said, that the facts, disclosing the situation of the Hollingsworths subject matter of the contract, and of the parties, at the time V Dunbar. it is entered into, cannot be considered by a Court, when deciding on the construction to be given; but that, in such case, the Jury alone can determine on the construction; in other words, that what was the meaning and intention of the parties, in all such cases, is a matter of fact to be found by the Jury. According to this reasoning though, if the Jury in this case had found a special verdict, setting out all the written documents in the Bill of Exceptions, and all the other important facts in the case, this verdict ought to have been set aside, because the Jury did not find, as a fact, that the defendant did or did not intend by his contract, to warrant against Winchester's use of, or right to use, the water: and hence it would follow, that this is a case, in which no special verdict could be found; for the meaning and intention of the contract in this respect being the very point in controversy, and the only one, that could be reserved for the opinion of the Court, the finding of the Jury, as to this point, one way or the other, would amount, in effect, to a general verdict, leaving nothing for the Court to decide. So I might say of a case agreed; unless, indeed, the parties were to agree that the true construction of the Covenant was so and so; (for, if that is a matter of fact, it must be either agreed or found ;) and which, in this respect, would amount to a confession of judgment by the one party or the other. And, as to a demurrer to evidence, there could be none in this case, there being, as before stated, a contrariety of testimony as to one important point. For these reasons, and believing, from as careful an examination of the cases, as I have been capable of giving them, that there is no case in this Court, or elsewhere, in opposition to the doctrines. for which I contend, I am of opinion that the question whether, according to the true construction of this contract, the defendant intended to warrant against any use of the water by Winchester, which use might prove injurious to the plaintiffs, was properly propounded to the Court below for its opinion, and is now properly before us for decision as well on the Covenant itself, as on the other facts above stated. 1816. V. Dunbar. I am also of opinion, that the Court below properly refused November, to give the instruction asked, being at present of opinion that the contract cannot be construed to bind the defendant to Hollingsworths warrant, either that Winchester should make no use of the water, when such use would be injurious to the plaintiffs, or that he should not use more, than he was authorized by the compromise and order of Court; the latter being a wrong, for which an action would lie against him; and the farthest I would go in this case would be to say, that, if Winchester acquired by the compromise a right to use more water, than he had been in the habit of using at the time of the contract, so far as the plaintiffs sustained injury by such acquisition and greater use, the defendant should be responsible. Of this latter point, however, I have some doubt; and (among others) for the following reasons. When the plaintiffs purchased, they saw Winchester's Mill and Dam in operation, and its effect upon the pond from which they were to draw their water; and no express Warranty is given against these effects; on the contrary, a large surplus of water, beyond what will suffice for the plaintiffs, seems to have been expected, even to the extent of three more overshot wheels: but, as to this point, mainly, for this reason; that, when the contract was made, the plaintiffs saw Winchester's Mill in operation, and had a right to presume, and either did presume it was erected by leave of the Court, whose order it was their duty to inspect, if they had doubts of its effect upon the property they were about to purchase; or they knew the fact of the lis pendens as to this matter, the inquisition in which had been found before they purchased. Knowing Winchester's claim, as spread upon the record, to wit, that he was owner of lands on one side of a large river, the bed of which belonged to the Commonwealth; and that the Commonwealth had theretofore only granted a portion of its water, they were bound to notice the extent of Winchester's rights or equitable claim on the Commonwealth. This, it would appear to me, was equal to one half of the whole water, provided his Mills would require that much, and provided that would not injure the Falls Mills theretofore established; and I would ask, if that case had been litigated throughout, and the Court had finally decided to that extent in favour of Winchester, and it had appeared that such decision could do no injury to the Falls Mill, 28 VOL. V. 1816. Hollingsworths Dunbar. NOVEMBER, whether such judgment ought to have been reversed? Upon what principle could Thornton and Dunbar, owners of land on one side, have contended for greater rights, than the owner on the other,unless more than the half had been previously granted, as necessary to the Falls Mills? Such then was the nature and probable extent of Winchester's claim, known to the parties, and who nevertheless require no special Warranty against it; and had the case been litigated, and the Order of Court extended as far, as is above supposed, and that had been finally affirmed here, could the defendant be considered, as warranting against this? The compromise, then, is, to my mind, clearly beneficial both to the plaintiffs and defendants, as well as to the quantity of water, as in the obtaining an abutment for their dam against Winchester's Island; which it seems it before had not; (perhaps it was only a wing dam;) and which, I presume, may have been an important acquisition. I therefore doubt whether, if the compromise gave Winchester more water than he had been in the habit of using; yet, as it gave him much less than he might, and probably would have acquired, if the contest had continued, the defendant ought to be answerable. I forbear, however, to go at large into my opinion on this contract, in as much as I understand no instruction will be given, and, if the cause goes back, it may hereafter be presented to us in a different shape, Thus far I have thought it, perhaps, not improper to go for the satisfaction of the parties. For these reasons, too, I think the instruction given was wrong; because it authorizes, in one event, a recovery for the diversion of the water by Winchester; provided the defendant did any act occasioning such use within the time, laid in the declaration. By this I understand that, if the compromise had been entered into within that time, the plaintiffs might have recovered. But, surely, if the defendant after the contract, had diverted the water to another Mill, either of his own, or of a third person, and the injurious effects of which had not been felt until within the time laid, it would have been a breach under the present declaration; for the continuance of the dam during that time, though not then built, would be, as to the water diverted thereby, a new act of diversion within the time. But this, I apprehend, was not the understanding of the in struction given: it was, however, calculated to mislead the Jury, and, on that account also, wrong. I think, also, that the Court was correct in refusing the last instruction asked for. Johnson against Hendley. 66 Decided, Nov. 9th, 1816. ant to the de upon ed without com. UPON an appeal from a Decree of the Superior Court of 1. A Bill for Chancery for the Richmond District, by which a Bill, exhibited relief against a writing purportby the Appellant against the Appellee, was dismissed on the ing an acknowledgment of a ground, that in the Chancellor's opinion, a Court of Law gift of property "could clearly and without doubt adjust the matter in dispute." by the complainThe object of the Bill was to get relief against a fraud fendant, on the alleged by the complainant to have been perpetrated by the ground of its having been obdefendant, (who was his son in-law) in writing an order, (which tained by fraud, the complainant, not suspecting such fraud, signed without presents a proper case for ereading it) for the delivery to him of two negro men, whom quitable jurisdiction, though the complainant had agreed to let him have on hire; the a suit at law, founded defendant, having (as the complainant averred) fraudulently such writing, inserted in the said order words, expressing that the negroes might be defeatwere given to him. It was stated in the Bill that the defendant ing into equity. claimed the negroes as his property, although he had paid off 2. The second their hire, except a small balance, and had returned them at point in Bullock v. Irvine's the end of the year to the complainant, whom he threatened Administrators, to sue, for their services and detention, at the end of the year4 Munf. 450, in which the Bill was filed. The complainant, being a very v. Thompson 2 old man, was apprehensive that the defendant was only waiting Munf 412, again decided. for his death, thinking that he might, with greater probability of success, bring an action against his representatives to recover the said negroes. He therefore brought this suit, to have the matter fully investigated in a Court of Equity; that the defendant might say, whether the negroes in question were not hired to him, and not given? and that such relief might be granted as the nature of the case required. The defendant by his answer denied the fraud; insisting that the negroes were really given him by the complainant. A general Replication was filed, and many depositions were taken on both sides. and in Marshall |