remedied by a reference to S. M.'s entry for twenty thousand acres lying on the west side of Slate creek, south-west branch of the main fork of Licking creek, beginning where the buffalo road crosses Slate creek, at the mouth of a branch emptying in on the east side thereof, there are several cabins, &c., to include a large quantity of fallen timber, &c." Taylor's Devisee v. Owing et al., 11 Wheat. 226; Cond. Rep.

286.

61. The equity of a prior location extends to the surplus land surveyed, as well as to the quantity mentioned in the warrant. Taylor and Quarles v. Brown, 5 Cranch, 234; 2 Cond. Rep.

235.

62. An error in description is not fatal in an entry, if it does not mislead a subsequent locator; as where an entry was made, calling, among other things, for Chapman Aston's land on the west side, and it ought to have been Austin's; and all the other calls are correct. Shipp et al. v. Miller's Heirs, 2 Wheat. 316; 4 Cond. Rep.

132.

63. It is a general rule, that when all the calls of an entry cannot be complied with, because some are vague or repugnant, the latter may be rejected or controlled by other material calls, which are consistent and certain. Course and distance yield to visible, known, and definite objects, but they do not yield unless to calls more material and equally certain. Ibid.

64. It is a settled rule, that where no other figure is called for in an entry, it is to be surveyed in a square coincident with the cardinal points, and large enough to contain the given quantity; and the point of beginning is deemed to be the middle of the base line of such square. Ibid.

65. Where an entry called to run about a north course for quantity, the word "about" is to be rejected, and the land is to run a due north course, having a moiety of the land on each side of a due north line, drawn through the middle of the base. Ibid.

66. An entry was made in the land-office of Kentucky, of one thousand acres, in the name of "John Floyd's heirs," without naming the persons who were the heirs. Upon an objection to the validity of the entry, the court said:That substituting a legal description, which cannot be misunderstood, for the more definite description, by the proper names of the persons who are the heirs, was not of such substantial importance as to vitiate the transaction. Hunt v. Wickliffe, 2 Peters, 208.

67. An entry was made "so as to join the settlements on the north-east and south sides thereof, so as not to run into the old military surveys, which are legal." The old military surveys formed together a parallelogram, and adjoined the lands intended to be described by the entry. It was objected that the limitation on the entry, "so as not to run into the old surveys, which are legal," rendered the whole entry so uncertain as to make it void. Ibid.

208.

68. The rules, which are settled in Kentucky, would require that this entry, had the restriction respecting the military surveys been omitted,

should be surveyed equally on the north-east and south side of the settlement, the whole land to be included by rectangular lines. The old military survey must, therefore, be so contiguous to the settlement, as to stop one or two of those lines. A subsequent locator knows where to look for them; and the testimony in the cause informs us that he would encounter no difficulty in finding them. "We consider the last words 'which are legal,' merely as an affirmance that they are so, not as leaving it doubtful; and consequently, that they make no change in the entry." Ibid. 209.

69. The claim of "a locator" is peculiar to Kentucky; and has been universally understood by the people of the country to signify that compensation of a portion of the land located, agreed to be given by the owner of the warrant, to the locator of it for his services. Hollingsworth v. Barbour, 4 Peters, 466.

70. Jenkin Phillips, on the 18th of May, 1780, "enters one thousand acres on the south-west side of Licking creek, on a branch called Bucklick creek, on the lower side of said creek, beginning at the mouth of the branch, and running up the branch for quantity, including three cabins." A survey was made on this entry the 20th November, 1795, taking Bucklick branch, reduced to a straight line, as its base, and laying off the quantity in a rectangle on the north-west of Bucklick. A patent was granted to Phillips, on this survey, on the 26th June, 1796. This entry is sufficiently descriptive, according to the well established principles of this court and the courts of Kentucky; and gave Phillips the prior equity to the land, which has been duly followed up and consummated by a grant within the time required by the laws of Virginia and Kentucky, without any laches which can impair it. The proper survey, under this entry, was to make the line following the general course of Bucklick the centre instead of the base line of the survey; and to lay off an equal quantity of each side in a rectangular form; according to the rule established by the court of appeals in Kentucky, and by the supreme court. Peyton v. Stith et al., 5 Peters, 485.

71. Peyton claimed the land under an entry made by Francis Peyton, and a survey on the 9th October, 1794, and a patent on the 24th December, 1785; so that the case was that of a claim of the prior against the elder grant, which it is admitted carried the legal title. Ibid.

72. Stith took possession as tenant of the heirs of Peyton, under an agreement for one year, at twenty dollars per year. Possession was afterwards demanded of him on behalf of the lessors, which he refused to deliver; and a warrant for forcible entry and detainer was, on their com plaint, issued against him, according to the law of Kentucky, and on an inquisition he was found guilty; but on a traverse of the inquisition he was acquitted, and an ejectment was brought against him by the lessors. Eight days after the finding of the inquisition, Stith purchased the land from Phillips. This is the case of an unsuccessful attempt by a landlord to recover possession from an obstinate tenant, whose refusal

could not destroy the tenure by which he remained on the premises, or impair any of the relations which the law established between them. The judgment on the acquittal concluded nothing but the facts necessary to sustain the prosecution, and which could be legally at issue: title could not be set up as a defence: Stith could not avail himself of the purchase from Phillips. A judgment for either party left their rights of property wholly unaffected, except as to the mere possession: the acquittal could only disaffirm the forcible entry, as nothing else was at issue the tenancy was not determined: Peyton was not ousted and the possession did not become less the possession of the landlord by any legal consequences as resulting from the acquittal. Ibid.

73. From the time of the purchase by Stith, from Phillips, although it became adverse for the specified purposes, it remained fiduciary for all others. Ibid.

74. An entry of land in one county, which is afterwards divided, does not, after the division, authorize a survey in the original county, if the land falls within the new county. Boardman et al. v. The Lessees of Read and Ford, 6 Peters, 328. 75. A survey itself, which had not acquired notoriety, is not a good call for an entry. But when the survey has been made conformable to the entry, and the entry can be sustained, the call for the survey may support an entry. The boundaries of the survey must be shown. This principle is fully settled by the decisions of the courts of the state of Kentucky. Holmes et al. v. Trout, 7 Peters, 171.

76. It has been a settled principle in Kentucky, that surplus land does not vitiate an entry, and a survey is held valid if made conformably to such an entry. Ibid.

77. The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls. This rule is reasonable and just. Ibid. 78. Until an entry be surveyed, a subsequent location must be governed by its calls; and this is the reason why it is essential that every entry shall describe with precision the land designed to be appropriated by it. If the land adjoining the entry should be covered by a subsequent location, it would be most unjust to sanction a survey of the prior entry beyond its calls, and so as to include a part of the junior entry. Ibid. 79. The locator may survey his entry in one or more surveys, or he may, at pleasure, with draw a part of his entry. When a part of a warrant is withdrawn, the rules of the landoffice require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn. Ibid.

80. In giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction. If a call be impracticable, it is rejected as surplusage, on the ground that it was made through mistake; but if a call be made for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for to control a rectangular figure, that form shall be given to a survey. Ibid.

81. The following entry of lands in Kentucky is invalid: "May 10th, 1780, Reuben Garnett enters one thousand one hundred and sixty-four and two-thirds acres, upon a treasury warrant, on the seventh big fork, about thirty miles below Bryant's station, that comes in on the north side of North Elkhorn, near the mouth of said creek, and running upon both sides thereof for quan tity." It is a well-settled principle, that if the essential call of an entry be uncertain as to the land covered by the warrant, and there are no other calls which control the special call, the entry cannot be sustained. In the case under consideration, there are no calls in the entry which control the call for the "seventh big fork ;" and that this call would better suit a location at the mouth of M'Connell's than at Lecompt's run, has been shown by the facts in the case. This uncertainty is fatal to the complainant's entry. Garnett et al. v. Jenkins et al., 8 Peters, 75.

82. To constitute a valid entry, the objects called for must be known to the public at the time it was made; and the calls must be so certain as to enable the holder of a warrant to locate the vacant land adjoining. It is not necessary that all the objects called for shall be known to the public; but some one or more leading calls must be thus known; so that an inquirer, with reasonable diligence, may find the land covered by the warrant. Ibid.

83. If an object called for in an entry is well known by two names, so that it can be found by a call for either, such a call will support the entry. Ibid.

84. Some of the witnesses say, that being at Bryant's station, with the calls of Garnett's entry to direct them, they could have found his land on Lecompt's run, without difficulty. If this were correct, the entry must be sustained, for it is the test by which a valid entry is known. Ibid.

85. If the complainants clearly sustain their entry by proof, their equity is made out, and they may well ask the aid of a court of chancery to put them in possession of their rights. But, if their equity be doubtful, if the scale be nearly balanced, if it do not preponderate in favour of the complainants, they must fail. Ibid.

86. The legislature of Kentucky passed an act by which a defective entry on land was made perfect. The agent of the holder of the defective title, after having become acquainted with its defect during his agency, took out a patent for the land in his own name. The court held, that the patent was void against the act of the legislature; and the holder of the patent was decreed to convey his legal title to the claimants under the law of Kentucky. Ringo v. Binns, 10 Peters, 269.

6. Ohio.

87. An entry for one thousand acres of land in Ohio, on Deer creek, "beginning where the upper line of R. M.'s entry crosses the creek, running with M.'s line on each side of the creek, four hundred poles, thence up the creek, four hundred poles, in a direct line, thence from each

States of Louisiana, against upwards of two hundred defendants, some of the defendants appeared, and an affidavit was made, that in consequence of an epidemic in New Orleans and at Lafayette, and the absence of many of the defendants, it had been impossible for the defendants to prepare for their defence, and they prayed time for the same. The circuit court allowed the defendants until the following term. By the court:-The allowance was strictly conformable to the practice and principles of a court of equity. Ex parte Poultney v. The City of Lafayette et al., 12 Peters, 472.

5. The complainants in their bill allege, that a conveyance of her real estate was made by a daughter to her father for a nominal consideration. The answer denied the matter stated in the bill, and the defendants gave evidence of the transfer of stock, to the value of two thousand dollars, on the day the conveyance was made, claiming that this was also the consideration in the deed. Held, that this evidence was admissible without an amendment of the answer. rebutted the allegation in the bill that the deed was made wholly without consideration. Jenkins et al. v. Pye, 12 Peters, 241.

6. Where the defect of title to lands sold was discovered by the vendee after his purchase, and he proceeded to perfect the title in himself, and thus defeat the right of the vendor to the land, and he claimed a rescission of the contract of purchaser, and the repayment of the sum paid by him for the land, it was held that he could not avail himself of the defect of title while standing in the relation of purchaser, to defeat his agreement to make the purchase; he could, under the most favourable circumstances, only have the contract reformed, and the amount advanced, to perfect the title, deducted from the unpaid purchase money. A court of equity will not rescind such a contract of purchase, and will, on a bill filed by him to have such a contract rescinded, decline giving its aid against the vendors to obtain the expenses of perfecting the title. Calloway v. Finley, 12 Peters, 264.

7. It is an established rule in equity, that when the vendor of land has not the power to make a title, the vendee may, before the time of performance, enjoy the payment of the purchase-money, until the ability to comply with the agreement is shown, but then the court will give a reasonable time to procure the title, if it appears probable that it may be procured. Ibid. 8. In reforming a contract for the sale of lands, equity treats the purchaser as a trustee for the vendor, because he holds under the vendor; and acts done to benefit the title by the vendor, when in possession of the lands, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed, was derived. The vendor and vendee shared in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. Ibid.

9. Where an administrator, not having previously given the proper bond, with sureties, and had it approved by the judge of probate, sold certain real estate; it was held, that the bond

12. Yet relief will be granted by way of injunction in equity, where the tenant has, pendente lite, acquired a title paramount to that of the demandant, if he cannot avail himself of it as a defence to the original suit at law, or cannot, after recovery, maintain an action to regain the possession. Ibid.

13. The statute of Maine, of the 27th of June, 1820, ch. 47, commonly called the betterment act, applies only where the tenant has been in actual possession of the land for six years or more before the action brought, by virtue of a possession and improvement; which term had not elapsed when the writ of entry was brought in this case. Ibid.

14. Query, Whether the maxim, “Qui tacet, consentire videtur; qui potest et debet vetare, jubet, si non vetat;" is applicable to minors, who stand by and make no objection and discover no adverse title, having a reasonable discretion, from their age, to understand and act on the subject; and whether the guardian is bound to disclose his ward's title, and how far the ward is bound by his silence or negligence; and whether there is any distinction between minors living within the state and without the state. Ibid.

15. Where the owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice, seeks an account in equity, as plaintiff, against such possessor for the rents and profits, conrts of equity will allow him to deduct therefrom all the meliorations and improvements made beneficially by him on the estate, and thus enable him to recoup them from the rents and profits. The same doctrine holds in cases where the owner of an estate has only an equitable title thereto. The Roman law also allows compensation for all beneficial expenditures; and if a bona fide holder of real estate pay money to discharge any existing encumbrance or charge upon it, without notice of the informality of his title, he is entitled to reimbursement, pro tanto. Ibid.

16. When a sale of real estate is made jointly

by persons having independent interests, in the absence of other counteracting circumstances, the purchase-money is to be divided according to their respective interests. Foster v. Hilliard, 1 Story's C. C. R. 77.

17. In the case of a tenant for life, remainder in fee, of lands under mortgage, the parties contribute to discharge the encumbrance according to the relative value of their respective interests, calculated according to the value of the estate of the tenant for life by the common tables. Ibid.

18. The same principle applies where a mortgagee devises the mortgaged estate to one for life, remainder over in fee. Ibid.

17. A court of equity will decline to interfere in adversum to change real estate, by a sale, into personal estate, without imposing conditions by which the proceeds shall retain throughout the character of the original fund; yet it would have been different, if there had been a voluntary sale by the parties. Ibid.

20. Certain real estate was devised to A. for life, remainder to certain minors in fee. A., with the consent of the guardian of the minors, sold the land, but died before receiving the whole of the purchase-money, and the residue was received by his executors. Held, That the rights of the parties were absolutely fixed at the very time of the sale; and that the executors of the deceased and the remainder-men were entitled to share in the proceeds according to the interests of A. and the remainder-men at that time. Ibid.

21. Held, also, that the interest of the tenant for life was to be determined, not by the time when he actually died, but by the value of his life, as ascertained by the common tables, at the time of the sale. And although he died within four years from the time of the sale, yet his interest was to be calculated for about twenty years, as that was the duration of his life, as ascertained by the common tables. Ibid.

22. Where an interrogatory, pertinent to a charge in a bill in equity, requires the defendant to answer "as to his knowledge, remembrance, information, and belief;" and the answer stated "that the defendant had no knowledge, information, and belief that it was not true;" and an exception was filed by the plaintiffs, on the ground "that the answer did not state whether the defendant believed it to be true." It was held that the exception was well founded, and it was accordingly allowed. Brooks v. Byam, 1 Story's C. C. R. 296.

23. An exception to an answer for insufficiency should state the charges in the bill, the interrogatory applicable thereto, to which the answer is responsive, and the terms of the answer, verbatim, so that the court may see whether it is sufficient or not. Ibid.

24. Whenever the defendant does not directly deny any particular allegation of fact, stated in the bill, but states his belief thereof, he either admits that it is true, or that he does not mean to controvert it. But a mere statement by the defendant, in his answer, that he has no knowledge that the fact is as stated, without any an

swer as to his belief concerning it, is not such an admission as is to be received as evidence of the fact. lbid.

25. The defendant in equity is bound to answer in direct and unequivocal terms, as to the state of his mind, as to every fact stated in the bill, to which he is interrogated; either that he does believe the matter inquired of, or that he cannot form any belief, or has none, concerning it; and, according as the answer may be, he must state that he calls on the plaintiff for proof, or that he admits the particular fact, or that he waives all controversy concerning it. Ibid.

26. Rehearings in equity, after a decree, are not a matter of right; but rest in the sound discretion of the court. Daniel v. Mitchell, 1 Story's C. C. R. 198.

27. Where a rehearing is applied for on the ground of newly discovered evidence, the application is mainly governed by the same considertions as apply to cases where leave is asked to file a supplemental bill after the publication of the testimony taken on a cause, and before the hearing, in order to bring newly discovered evidence before the court; or where leave is asked, after a decree, to file a bill of review upon the ground of the like evidence. Ibid.

28. Query, Whether the court will grant any such application after a decree, where the newly discovered evidence consists wholly of confessions made by the plaintiff since the decree, and affecting the merits of the original bill. Ibid.

29. If the court will grant any such application, it will grant it only when the confessions are of the most full and direct character, and are proved by disinterested testimony, and are not susceptible of different interpretations. Ibid.

30. A fortiori, the application will be more difficult to be maintained (if it can be maintained at all) where the supposed confessions made by the plaintiff are directly contradictory to the answer of the plaintiff to a cross-bill, filed in the same cause for the very purpose of obtaining an admission of the same facts as the confessions purport to state, and are also contradicted by the plaintiff by his affidavit, filed upon the application for the rehearing. Ibid.

31. Where a bill in equity was brought by an administrator de bonis non, for an account of the intestate's estate, after the lapse of from twenty to twenty-five years, and the defendant pleaded the statute of limitations, and filed a general answer to the whole bill; it was held, that the plea should, in itself, contain averments, negativing such special matters stated in the bill as would, if true, avoid the operation of the statute; and that it was not sufficient that such matters were negatived in the answer. Stearns v. Page, 1 Story's C. C. R. 204.

32. Held, also, that when an answer contains more than is strictly applicable to the support of the plea, it overrules the plea. Ibid.

33. Where a bill in equity is brought after a great lapse of time, it is incumbent on the plaintiff to state the reasons why it was not brought before, in order to repel the presumption of laches or improper delay; and if fraud, mistake, &c., are charged, distinct and definite averments