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Suydam v. Williamson et al.

grantee. The obligation of the United States to this grantee will be fulfilled by the performance of the executive acts, which are devolved in the grant on the local authority, and which are declared in the two conditions before cited. We regard these conditions to contain a description of the thing granted, and, in connection with the other calls of the grant, they enable us to define it. We reject the words "a little more or less," as having no meaning in a system of location and survey like that of the United States, and that the claim of the grantee is valid for the quantity clearly expressed. If the limitation of the quantity had not been so explicitly declared, it might have been proper to refer to the petition and the diseño, or to have inquired if the name Capitancillos had any significance as connected with the limits of the tract, in order to give effect to the grant. But there is no necessity for additional inquiries. The grant is not affected with any ambiguity. The intention of the Government of California is distinctly declared, and there is no rule of law to authorize us to depart from the grant to obtain evidence to contradict, vary, or limit its import.

20h 427

21h 88

2b 484

The grant to Larios is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and which is to be located, at the election of the grantee or his assigns, under the restrictions established L-ed 978 for the location and survey of private land claims in California 21h 226 by the executive department of this Government. The external boundaries designated in the grant may be declared by the District Court from the evidence on file, and such other evidence as may be produced before it, and the claim of an interest equal to three-fourths of the land granted is confirmed 6433 to the appellee.

1wa6CO 1wa602 1wa603

102 wa604

3wa661 5wa675

6wa187

6wa 729 6wa 736 7wa 91 8wa357

The decree of the District Court is reversed, and the cause is remanded to that court, with directions to enter a decree 9wa429 conforming to this opinion.

JAMES H. SUYDAM, PLAINTIFF IN ERROR, v. WILLIAM H. WIL-
LIAMSON, DAVID R. WILLIAMSON, MARY A. WILLIAMSON, ISA-
BELLA WILLIAMSON, CATHERINE B. WILLIAMSON, CHARLOTTE
A. WILLIAMSON, RUPERT J. COCHRAN, ISABELLA M. COCHRANE,
AND BAYARD CLARKE.

10wa 261

10wa 291

11wa160

11wa161

11wa677 12wa141

12wa281 13wa 263

13wa263 53 15wa437 16wa386

16wa387

21 wa558 23wa163 91 130

91 527

92 473 94 77

Rulings of the court below, in admitting or rejecting evidence, can be brought to this court for revision only by a bill of exceptions. Every special verdict, in order to enable the appellate court to act upon it, must 94 81 find the facts on which the court is to pronounce the judgment according to law, 95 140 and not merely state the evidence of facts. In this manner it becomes a part of 97 364 the record.

98 374

103 556 112 505

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L-ed 978 141 555

142 134

Suydam v. Williamson et al.

Where there is a bill of exceptions, the writ of error does not operate only upon that part of the record. Wherever an error is apparent on the record, it is open to revision, whether it be made to appear by a bill of exceptions, or in any other

manner.

Where there is no dispute in regard to the facts, and consequently no necessity for any ruling of the court in admitting or rejecting evidence, the case may be brought before an appellate cor by a special verdict or an agreed statement of facts.

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But in such a case, the previous rulings of the court upon questions of evidence do
not come before the appellate court, unless brought up by a bill of exceptions.
A bill of exceptions may include in its scope the rulings of the court as to the
admissibility of evidence, which a demurrer to evidence cannot do.

A demurrer to evidence makes the evidence a part of the record.

So where oyer of any instrument is prayed, or there is a demurrer to any part of the pleadings.

A writ of error operates only upon the record, and brings it into this court. Therefore, where a paper was filed in the court below after the writ of error was issued, which paper, purporting to contain all the evidence, both admitted and rejected, was signed by the judge and certified to be correct by the counsel of the appellee, and concluded as follows: "A verdict was then, by direction of the court, taken for the plaintiffs for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to turn this case into a special verdict or bill of exceptions," this paper cannot be considered a part of the record. A special verdict requires the presence and assent of the court, and a bill of exceptions must always be signed and sealed by the judge.

In this case, the paper is merely a report of the judge who presided at the trial,. and as such must be disregarded by this court.

Under the twenty-fifth section of the judiciary act, where the jurisdiction of this court is not shown upon the record, the writ of error must be dismissed; but under the twenty-second section, if no error appears upon the record, the judgment of the court below must be affirmed.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of New York.

It was an action of ejectment brought by the defendants in error against Suydam to recover two lots of ground in the city of New York. On the part of the defendants in error, it was contended that every material question in the case was adjudged by this court in the cases of Williamson v. Berry, 8 Howard, 495; Williamson v. The Irish Presbyterian Congregation, 8 Howard, 565; and Williamson v. Ball, 8 Howard, 566. The counsel for the plaintiff in error alleged that this case was unlike those in several important particulars. But as the decision of this court turned altogether upon the manner in which the case had been brought up, it is only necessary to state so much of it as will illustrate the point of practice.

The record showed a declaration in ejectment, a plea of not guilty, issue joined, suggestion of the death of some of the plaintiffs and substitution of their heirs, empannelling of a jury, their verdict of guilty against Suydam, the case held under a curia, the judgment for the plaintiffs with costs, and a prayer

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Suydam v. Williamson et al.

for a writ of possession, which was granted. Judgment signed this 6th day of December, 1854.

Then came the following:

R. E. STILWELL,

Deputy Clerk.

Circuit Court United States, Southern District of New York.

WILLIAMINA H. WILLIAMSON et al. v. JAMES H. SUYDAM.

This is an action of ejectment for two lots in the sixteenth ward of the city of New York. The declaration is in the usual form; the plea is not guilty. Either party may refer to the pleadings as part of this case.

The plaintiff gave in evidence an exemplified copy of the will, &c., &c., &c.

The plaintiffs thereupon rested.

The defendants' counsel then proved the acts of the Legiɛ. lature, the deed of Clement C. Moore, the petitions to the Legislature and to the chancellor, the master's reports, the orders of the chancellor, the extracts from the journals of the two Houses, of which copies are hereto annexed; these were all objected to by the plaintiffs' counsel, and were read subject to the objection.

The defendants' counsel then offered in evidence a deed from Thomas B. Clarke to Peter McIntyre, of which the following is a copy, &c., &c., &c.

The plaintiffs' counsel then offered to prove

1st. That the acts of the Legislature were not for the benefit of the infants, but for the benefit of Thomas B. Clarke merely. 2d. That the orders of the chancellor had the effect to take the proceeds of their future interest in the property sold, and to apply the same to the father's debts, without giving them any benefit, by support or otherwise, out of the interest of the life estate in other parts of the property.

3d. That under the acts and orders he actually aliened the lot on Broadway and all the southern moiety of the Greenwich property, excepting two lots, and that none of the children received any benefit from such alienation.

4th. That nearly the whole of the property mentioned in the acts of Legislature was mortgaged or conveyed by Thomas B. Clarke for old debts; that no proceeds were ever invested or secured, or ever received, from the grantors or mortgagees.

5th. That so far from providing for the children or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the same moiety for twenty-one years, when, on the 81st of March, 1826, a bill was filed against him on behalf of the children, and an injunction issued.

Suydam v. Williamson et al.

6th. That on the death of his wife he broke up housekeeping, and ceased to live with his children; that the plaintiff was Mrs. Williamson; was, from the death of her mother, in August, 1815, supported and educated entirely by one of her aunts; and that, after about two years from the mother's death, the other children were supported and educated by their friends, and were entirely neglected by their father.

The defendants' counsel objected; the objection was sustained. The plaintiffs' counsel excepted.

A verdict was then, by direction of the court, taken for the plaintiffs for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to either party to turn this case into a special verdict or bill of exceptions. SAMUEL R. BETTS. [L. S.]

Endorsed: 127, Circuit Court, southern district New York. Williamina H. Williamson et al., agt. James H. Suydam.-Cr. case. Jas. L. Sluyter, plaintiffs' attorney.

Filed this 29th January, 1855.

Then followed a transcript of other papers in the case. The writ of error was dated 18th December, 1854.

This was the state of the record upon which the case was brought up to this court.

It was argued by Mr. Ellingwood for the plaintiff in error, and Mr. Field for the defendants; but as their arguments were upon the merits of the case, they are omitted in this report.

Mr. Justice CLIFFORD delivered the opinion of the court. This was a writ of error to the Circuit Court of the United States for the southern district of New York.

The view we have taken of this case, as it is exhibited in the record, renders an extended statement of the facts entirely unnecessary. It was an action of ejectment brought in the court below to recover the possession of a certain parcel of land, with the appurtenances, situated in the sixteenth ward of the city of New York, and described as lots sixty-four and sixty-five, according to a certain map made by George B. Smith. The declaration, which was in the usual form, was filed in the Circuit Court for the southern district of New York on the 15th day of August, 1845, and the defendant, James H. Suydam, appeared, by his attorney, and pleaded that he was not guilty of unlawfully withholding the premises claimed by the plaintiffs, as was alleged in the declaration, and tendered an issue, which was duly joined by the plaintiffs. During the

Suydam v. Williamson et al.

pendency of the suit, and before the trial, two of the plaintiffs, being the two first named in the declaration, died, and the cause was regularly revived in the name of the survivors and the heirs of those deceased. At the adjourned session of the Circuit Court held at the city of New York on the first Monday of October, 1849, the parties went to trial on the general issue, and the jury returned a general verdict in favor of the plaintiffs; after the verdict, the cause was continued, as the record states, until the first Monday of October, 1850, and "the same day is given to the parties to hear the judgment of the court," and on that day the judgment was rendered on the verdict for the plaintiffs, that they do recover against the said James H. Suydam the possession of the said premises according to the said verdict of the jury, and for their damages, costs, and charges; and a writ of possession was duly issued, directed to the marshal of the district. All these proceedings were in the usual course of judicial action, and were duly and formally entered on the record of the suit, and consequently furnish no ground of complaint whatever on the part of the present plaintiff, who was the defendant in the court below. The declaration contained on its face a good cause of action, and the general issue and joinder were regularly filed in the cause, and were entirely sufficient to make up a valid issue between the parties to the suit; and the verdict, which was strictly formal and legal, was in every respect responsive to the issue formed. It appears that the jury found, in the very words of the issue, that the defendant was guilty of unlawfully withholding the premises claimed by the plaintiffs, as alleged in the declaration; and the judgment followed the verdict, and was founded upon it, for the premises as they were set forth and described in the pleadings. Every step in the cause, from the filing of the declaration to the issuing of the writ of possession, was in exact conformity to the most approved practice and precedents in the Federal courts.

We do not understand that the pleadings or the regularity of the proceedings are in any manner called in question, except as the foundation of a judgment, which it is insisted was erroneous, for reasons altogether aside from any connection with mere matters of form. The real controversy between the parties has reference more especially to the right of possession, and consequently extends to the title of the premises described in the declaration, and necessarily involves the principal questions which were presented to this court at the December term, 1850, in the case of Williamson et al. v. Berry, 8 How., 495; and we regret that the facts of the case, and the rulings of the court below, are not now exhibited in a manner to justify this

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