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Lessee.

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Smith.

Company, and contribute with the other members thereof, in making good what they may lose in consequence of the demands of individuals, who stand in the predicament of Mrs. Gilman, for their proportion of the indemnity actually awarded to those whose certificates of land on the New-England Company were adjudged to be valid.

An objection was made by the respondent to the want of parties; but the conclusion to which the Court has come renders it unnecessary to give any opinion on this point. The Court, however, would have hesitated in making any decree against Mr. Jackson in the absence of his principals in whose favour the award was made, and who ought, if its merits were examinable, to have been afforded an opportunity of vindicating the grounds on which it was made. It is the judgment of this Court, that the decree of the Circuit Court dismissing the appellants' bill, be affirmed with costs.

Decree affirmed with costs.

[LOCAL LAW.]

BLUNT'S Lessee v. SMITH and Others.

The decision of the Court below, granting or refusing a motion for a
new trial, is not matter for which a writ of error lies to this Court.
In Kentucky and Virginia the rule is, that a Court of common law can-
not look beyond the patent; but in Tennessee the Courts of law, un-
der their construction of the land laws of North Carolina, permit the
parties in an ejectment to go back to the original entry, and connect
the patent with it,

This construction is not limited to a comparison of the dates of the en-
tries, but admits of an inquiry into their legal effect as they stand in
relation to each other.

The statutes of North Carolina, which have been construed to justify a
Court of law in considering the entry as the commencement of title,
are applicable to military warrants as well as other titles.
By the decisions of the Courts of Tennessee, the validity of surveys does
not depend on the will or directions of claimants; and though the
mistakes of surveyors may be corrected, they cannot be corrected so
as to injure a subsequent adjoining enterer.

The laws of North Carolina do not require that an entry should express
the water courses and remarkable places which are remote, but
only those which are contiguous, and which may assist in designating
the land intended to be acquired.

Notoriety is not essential to the validity of an entry in Tennessee, as it is in Kentucky. The statute of Virginia, which is the land law of Kentucky, requires that entries shall be so special and certain that any subsequent locator may know how to appropriate the adjacent residuum. But the land law of North Carolina contains no such provision, and the doctrine which requires notoriety as well as identity, has never been received in Tennessee.

ERROR to the Circuit Court of West Tennessee. This was an action of ejectment, brought by the plaintiff in error, in the Circuit Court, against the defendants in error, to recover the possession of lands in the State of Tennessee. The title of the plaintiff, as spread upon the record, originated in an entry made on the 17th of March, 1785, in the following words: "General Sumner enters 12,000 acres of land, lying east of the upper south road, between the head of Mile Creek, Little Harpeth, and Stewart's Creek, and on the waters of some of the aforementioned creeks, including some deadened trees, marked I. F." The deadened trees were never found. On this entry a patent was issued by the State of North Carolina, on the 27th day of April, 1793, to which

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Blunt's
Lessee

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Smith.

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Lessee

V.

Smith.

was attached a platt and certificate of survey purporting to be made by Thomas Malloy, a deputy surveyor, on the 20th of November, 1786.

The defendants claimed under a patent issued to William Tyrrell, assignee, on the 10th of April, 1797. This grant was founded on an entry made in the name of John Gee, on the 1st of June, 1785, in the following words: "John Gee, heir of Captain James Gee, enters three thousand eight hundred and forty acres of land, lying and adjoining the northern boundary of Brigadier General Jethro Sumner, running west along his line for complement."

The defendants gave in evidence the record of a former trial in ejectment for the same land, in which the verdict and judgment were against the plaintiffs, and the testimony of Burkley Pollock, a witness examined at that trial, who is since dead. and who swore that he made the survey for General Sumner before Gee's entry was made. A copy of the platt and certificate of survey made by Pollock, and recorded in the Secretary's office of North Carolina, properly authenticated, was also given in evidence. By the platt and certificate of survey, it appears that the land of Sumner was laid off by Pollock, in a parallelogram, the base or first line of which extending from west to east, was 1292 poles, and the side lines 1486 poles. The patent which was issued on the platt and certificate returned by Malloy, had the same base line, but the side line is extended to 1737 poles, and the survey is said to include 2026 acres, belonging to Lieutenant Thomas Pasteur.

The defendants also gave in evidence copies of a petition presented to the General Assembly of North Carolina, at their session held in November, 1786, by the guardian of the plaintiff, praying that a separate warrant might be issued to the heirs of General Sumner for the quantity of land included in his survey to which Lieutenant Pasteur had a prior title, and the proceedings of the legislature, granting the prayer of the petition. The defendants also gave in evidence a certified copy of a certificate granted by the Commissioners of West Tennessee to the heirs of General Sumner, for so much land as was equal to the quantity lost by the prior title of Lieutenant Pasteur, and a copy of the testimony on which this certificate was founded.

To the admission of all these copies, it is stated in the bill of exceptions the plaintiff's counsel objected, but his objections were overruled, and the papers were read.

Some testimony was offered by the defendants, to prove that in the survey of Sumner's land by Pollock, a second as well as the first line was run, and corner trees marked at the end of that line, so as to fix the northern boundary of Sumner's land; but other testimony was offered by the plaintiff to prove that only the first line, which established the southern boundary, was run.

After the testimony was closed, the counsel for the plaintiff moved the Court to instruct the jury, "that they should not regard the said copies from the Secretary's office of North Carolina, and of the proceedings before the Commissioners of West Tennessee as

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Smith.

having any effect in the said cause; and that the entry in the name of Gee, on which the grant to Tyrrel purported to be founded, could not be located as a special entry to any place, or if to any place, only to the northern boundary of Sumner's land on which the grant was founded, as granted and described in the platt and certificate;" but the judge refused so to instruct the jury, but informed them that all said documents, except the proceedings before the Commissioners, which should have no weight in the cause, should be considered as testimony by them: and that the platt and certificate made by Pollock, if he marked no. more of the corners and lines of Sumner's tract, but the southern boundary, and south east corner and south-west corner, would show, by calculation, where the northern boundary of his tract should be according to said platt, and locate said Sumner's entry and land to the south of that line, and fix said entry in the name of Gee to the north of that line, and make it special from the date of the survey made by Pollock for that place; and that the grant to Tyrrel, although founded on a survey made long after the grant to Sumner was issued, should relate back to the date of said entry, and give a good title to those holding under the said grant to the land north of the north boundary as represented in the platt, &c. made by Pollock, against the title derived from Sumner's grant and entry; and that Sumner's grant should be considered as made on a removed warrant, for all the land north of what is represented in said platt, made by Pollock, as his northern boundary."