Lien of, and Proceedings upon Bottomry, Hypothecation, and Respondentia Bonds.

bottomry bond, "that the said brig shall be de- for payment would be a waiver of the implied livered to no other use or purpose whatsoever, lien. Murray v. Lazarus, 1 Paine's C. C. R. 572. until payment of this bond is first made." Held, à fortiori, that a sale of the brig, after the commencement of the risk, terminated the risks under the bond; and entitled the lender to an immediate right of action. Ibid.

80. The draft was expressed to be "for value 2. Lien of Bottomry, Hypothecation, and Respon-received, in disbursements and repairs of the

73. There is strong reason to contend, that the claim of bottomry interest shall be preferred to every other for the voyage on which the bottomry is founded, except seamen's wa- 82. The admiralty courts of the United States ges. Blaine v. The Charles Carter, 4 Cranch, will entertain jurisdiction in rem, to enforce a 328; 2 Cond. Rep. 127. bottomry bond, executed in a foreign country, 74. If the owner of a bottomry bond suffers between subjects of a foreign country, when the the ship to make several voyages, without as-ship is within the territory of the United States. serting his lien, and executions are levied on the The Jerusalem, 2 Gallis. C. C. R. 191. ship by other creditors, the right to enforce the bottomry bond on the ship is lost by such laches.

BOUNDARY OF LANDS.

Boundary of Lands.

the premium, as a principal, and to allow common interest on that sum, for the delay of payment after it is due. Ship Packet, 3 Mason's C.

C. R. 255.

land of about four or five acres, lying a little north-westwardly from the aforesaid lots, and reaching back to a ditch. It was held, that the latter clause did not control the specific bounda88. In a suit in rem, on a bottomry bond, un- ries in the deed, even supposing the will would derwriters, to whom abandonment is made, admit of narrower limits, or was of doubtful conwhich has not been accepted, are not admissi-struction. Howell v. Saule, 5 Mason's C. C. R. 410. ble as claimants. Ibid.

89. Courts of admiralty will marshal the assets in cases of bottomry, so as to make the proper priorities in favour of shippers, against the property of the owner and master. Ibid.

BOUNDARY OF LANDS.

1. Where plats are returned, without any actual survey having been made, and grants made pursuant to them, the general rule of construction is, that the most material and most certain calls shall control those which are less certain and less material. A call for a natural object, as a river or known stream, a spring, or even a marked tree, shall control both course and distance. Newsom v. Pryor's Lessee, 7 Wheat. 7; 5 Cond. Rep. 206.

2. There is no distinction in such cases between a call for a river at the end of a line, and for a river in the course of a line. There is as much reason, in the one case, for supposing the surveyor intended the line should cross the river, or, in the case of an actual survey, that he did cross the river, as in the other for supposing an intention to stop at the river, or an actual termination of the line at the river. Ibid..

3. Where a boundary is disputed between parties who own adjoining tracts of land, and they agree to erect a fence on what is supposed to be the true boundary, and the possession continues, according to that line, for twenty years, in the absence of all counter-proof of any other actual boundary, that line ought to be deemed the true one, and to conclude persons claiming under them by subsequent conveyances. Wakefield v. Ross, 5 Mason's C. C. R. 16.

4. Where A. owned the head lot No. 18, and sold to B. forty acres on the east end of that lot, and afterwards sold to C., by the following description: "a certain tract or parcel of land, situate, &c., and contains thirty acres, by measure, being the head part of the west lot No. 18;" it not being shown that the parties at that time knew that the whole lot contained more than seventy acres, although, in fact, it did contain more, it was held that the deed to C. conveyed all the land in the lot not conveyed to A., and was not limited to thirty acres, at the west end of the lot. There being actual boundary lines afterwards stated in the same deed, it was further held, that those boundary lines must govern, even if they included more than thirty acres. Ibid.

5. A. conveyed to B., by deed, a certain piece of land, by specific boundaries, and then added, it being the same land given by my honoured mother to him, the said B., by her last will and testament, said land containing about five acres. The devise in the will was of a piece of plain VOL. I.-23

6. A water-course is the safest boundary of real estate, as it is a natural boundary. Lessee of Hartshorn v. Wright, Peters' C. C. R. 64.

7. The courses and distances laid down in a survey, especially if it be ancient, are never, in practice, considered conclusive, but are liable to be materially changed by oral proof, or by other evidence tending to prove that the documentary Conn et al. v. lines are not those actually run. Penn et al., 1 Peters, 496.

8. Reputed boundaries are often proved by the testimony of aged witnesses; and the hearsay evidence of such witnesses has been admitted to establish the real lines, in opposition to the calls of an ancient patent. Ibid.

9. It is not the lines reported, but the lines which have been actually run by the surveyor, which vest in the patentee the area included in those lines. Ibid.

10. Where the mistakes of a surveyor are shown by satisfactory proof, courts of law, as well as courts of equity, look beyond the patent to correct them. If a mistake is apparent upon the face of a survey, and natural or artificial marks, or the reputation of the neighbourhood, have fixed the boundaries of the land differently from those delineated in the survey, a subsequent location is so far affected by the real boundaries that a court of equity will not permit a title, derived under such location, to be set up against the owner of the land intended to have been located by the first survey. Ibid.

11. An agreement, by parol, between two proprietors of adjoining lands, to employ a surveyor to run the dividing line between them, and that it should be thus ascertained and settled, which was executed, and the line accordingly run and marked on a plat by the surveyor, in their presence, as the boundary, is conclusive in an action of ejectment, after a corresponding possession of twenty years by the parties, and those claiming under them respectively; and such an agree ment is not within the statute of frauds, as being a contract for the sale of lands, or any interest in or concerning them. Boyd v. Graves, 4 Wheat. 513; 4 Cond. Rep. 525.

12. If there is nothing in a patent to control the call for course and distance, the land must be bounded by the courses and distances of the patent, according to the magnetic meridian. But it is a general principle, that course and distance must yield to natural objects. M'lver's Lessee v. Walker, 4 Wheat. 444; 4 Cond. Rep. 501.

13. It is an obvious principle that a grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself. The description of the land consists of the courses and distances run by the surveyor, and of the marked trees at the lines and corners, or other

Ωχ

Boundaries of States.

natural objects which ascertain the very land which was actually surveyed. Chinoweth et al. v. The Lessee of Haskell, 3 Peters, 96.

14. If a grant be made, which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind; course and distance, though not safe guides, are the only guides given, and must be used. Ibid.

not include a peninsula, or island, in the western or north-western bank, separated from the mainland by a channel, or bayou, which is filled with water only when the river rises above its bank, and is at other times dry. Handly's Lessee v. Anthony et al., 5 Wheat. 374; 4 Cond. Rep. 691. 2. Where a river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting

where, as in this case, Virginia is the original proprietor, and grants the territory on one side only, it retains the river within its own domain; and the newly-erected state extends to the river only, and the low-water mark is its boundary. Ibid.

15. The line which forms the western boun-it, each holds to the middle of the stream. But dary of the land intended to be granted was never run or marked. In his office, the surveyor assumed a course and distance, and terminated the line at two small chesnut oaks. But where are the court to look for those two small chesnut oaks, in a wilderness in which one man takes up fifty thousand acres, and another one hundred thousand? or how distinguish them from other chesnut oaks? The guide, and the only guide given us by the surveyor, or by the grant, is the course and distance. Ibid.

16. It is admitted that the course and distance called for in a grant may be controlled and corrected by other objects of description, which show that the survey actually covered other ground than the lines of the grant would comprehend. Ibid. 98.

17. Artificial or natural boundaries called for, control a call for course and distance. Barclay and others v. Howell's Lessee, 6 Peters, 498.

3. If a river, subject to tides, constitutes the boundary of a state, and at flood the waters of a river flowed through a narrow channel, round an extensive body of land, but receded from the channel at ebb, so as to leave the land, surrounded at high-water, connected with the main body of the country, this portion of the territory would scarcely be considered as belonging to the state on the opposite side of the river, although that state should have the property of the river. Ibid.

4. The plaintiffs in the circuit court of West Tennessee, instituted an ejectment for a tract of land held under a Virginia military land-warrant, 18. Where the quantity of a tract of land is situate south of a line called Mathew's line, and given, as well as the metes and bounds, the latter south of Walker's line; the latter being the eswill control the location, although they contain tablished boundary between the states of Kenless than the given quantity, if they can be ascer- tucky and Tennessee, as fixed by a compact tained with certainty. And this rule applies in between these states, made in 1820, by which all cases, whether the lands have been surveyed compact, although the jurisdiction over the teror not. As where land was granted to be run ritory to the south of Walker's line was acknow. upon a given base, which had never been sur-ledged to belong to Tennessee, the titles to lands veyed, but could be ascertained from a known point; and parallel lines were to be run from each extremity of the base, until a certain quantity was obtained, but a portion of the base had been cut off by a prior grant, so as to narrow the extent between the parallel lines; it was held, that the lines could not be continued, in order to make up the deficiency out of the lands of the grantor, beyond the limits they would have reached, to make up the quantity, if the base had remained undiminished. Jackson v. Sprague,

Paine's C. C. R. 494.

held under Virginia military land-warrants, &c., and grants from Kentucky, as far south as "Mathew's line," were declared to be confirmed; the state of Kentucky having, before the com pact, claimed the right to the soil, as well as the jurisdiction over the territory, and having granted lands in the same. The compact of 1820 was confirmed by congress. The defendants in the ejectment claimed the lands under titles emanating from the state of North Carolina, in 1786, 1794, 1795, before the formation of the state of Tennessee, and grants from the state of Tennessee in 1809, 1811, 1812, 1814, in which the lands claimed by the defendant were situated, according to the boundary of the state of Tennessee, declared and established at the time the

19. Where the different parts of a description of the metes and bounds are repugnant and contradictory to each other, such parts may be rejected, and such retained, as will leave enough to designate plainly and clearly the land intend-state of Tennessee became one of the states of ed to be conveyed. Ibid.

20. Evidence of identity, which describes the land so as to distinguish it from other tracts, is sufficient for a deed, and, also, in an action of ejectment. Godfrey v. Beardsley, 2 M'Lean's C. C. R. 412.

BOUNDARIES OF STATES.

1. The boundary of the state of Kentucky extends only to low-water mark, on the western, or north-western side of the river Ohio, and does

the United States. The circuit court instructed the jury, that the state of Tennessee, by sanctioning the compact, admitted, in the most solemn form, that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Carolina, at the time they were granted, and that, consequently, the titles are subject to the compact. Held, by the supreme court, that the instructions of the circuit court were entirely correct. Burgess Poole v. The Lessee of John Fleeger, 11 Peters, 185.

5. It is a part of the general right of sovereignty, belonging to independent nations, to

Boundaries of States.

establish and fix the disputed boundaries between their respective limits; and the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights, and are to be treated, to all intents and purposes, as the real boundaries. This right is expressly recognised to exist in the states of the Union, and by the constitution of the United States, and is guarded in its exercise by a single limitation or restriction only, requiring the consent of congress. Ibid.

became parties to the constitution, gave to the judicial power of the United States, jurisdiction over themselves, controversies between states, and between citizens of the same or different states, claiming lands under their conflicting grants, within disputed territory. Ibid.

12. No court acts differently in deciding on boundaries between states, and on lines between separate tracts of land. If there is uncertainty where the line is; if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermix6. In great questions which concern the ing of possession under different proprietors, the boundaries of states, where great natural bound-effects of accident, fraud, or time, or other kinaries are established on general terms, with a view to public convenience, and the avoidance of controversy, the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals. Ibid.

dred causes; it is a case appropriate to equity. An issue at law is directed; à commission of boundary awarded; or, if the court are satisfied without either, they decree what and where the boundary of a farm, a manor, province, or a state is, and shall be. Ibid.

13. There is neither the authority of law or reason for the position, that boundary between

7. The true line of territorial boundary between the United States and the English terri-nations or states is, in its nature, any more a tories, on the bay and waters of the Passamaquoddy, is the middle of the stream, or channel of the river, between the territories of the nation, calculating from low-water mark. The Fame, 3 Mason's C. C. R. 147.

8. In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided, and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. lbid. 307.

9. The boundary established and fixed by compact between nations becomes conclusive upon all the subjects and citizens thereof, and binds | their rights, and is to be treated, to all intents and purposes, as the true and real boundary. The construction of such compact is a judicial question. The State of Rhode Island v. The Commonwealth of Massachusetts, 12 Peters, 657.

political question than any other subject on which they may contend. None can be settled without war or treaty, which is by political power; but, under the old and new confederacy, they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before. Ibid.

14. In a case in which sovereign states of the United States are litigating a question of boundary between them, in the supreme court of the United States, the court have decided that the rules and practice of the court of chancery should substantially govern, in conducting the suit to a final close. The State of Rhode Island v. The State of Massachusetts, 14 Peters, 210.

15. In a controversy where two sovereign states are contesting the boundary between them, it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hearing on its merits. It is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleadings Ibid.

16. The state of Rhode Island, in a bill against the state of Massachusetts, for the settlement of the boundary between the states, had set forth certain facts on which she relied in support of the claim for the decision of the supreme court, that the boundary claimed by the state of Massachusetts was not the true line of division between the states, according to their respective charters. To this bill the state of Massachu

10. There can be but two tribunals under the constitution that can act on the boundaries of states, the legislative or the judicial power; the former is limited, in express terms, to assent or dissent, where a compact or agreement is re-setts put in a plea and answer, which the counsel ferred to them by the states; and as the latter can be exercised only by this court where a state is a party, the power is here, or it cannot exist. Ibid.

11. The supreme court exists by a direct grant from the people of their judicial power; it is exercised by their authority, as their agent, selected by themselves, for the purposes specified. The people of the states, as they respectively

for the state of Rhode Island deemed to be insufficient. On a question whether the plea and answer were insufficient, the court held: that as, if the court proceeded to decide the case upon the plea, it must assume, without any proof on either side, that the facts stated in the plea are correctly stated, and incorrectly set forth in the bill, then it would be deciding the case upon such an issue as would strike out the

Boundaries of States.-Bounty Lands.

very gist of the complainant's case, and exclude the misrepresentations of the commissioners of the facts upon which the whole equity is founded, Massachusetts. Now, if this mistake had been if the complainant has any. The court held: discovered a few days after the agreement was that it would be unjust to the complainant not made, and Rhode Island had immediately gone to give an opportunity of being heard according before a tribunal having competent jurisdiction to the real state of the case between the parties, to relieve against a mistake committed by such and to shut out from consideration the many parties, can there be any doubt that the agree facts on which he relies to maintain his suit. ment would have been set aside, and Rhode Ibid. Island restored to the true charter line? Agree. ments thus obtained cannot deprive the complainant of territory which belonged to her, unless she has forfeited her title to relief by ac quiescence or unreasonable delay. Ibid.

17. The plea of the state of Massachusetts, after setting forth various proceedings which preceded and followed the execution of certain agreements with Rhode Island, conducing to show the obligatory and conclusive effects of 21. In the bill of Rhode Island, claiming to those agreements upon both states, as an accord have an adjustment of the boundary between and compromise of a disputed right, proceeded her and the state of Massachusetts, allegations to aver that Massachusetts had occupied and are made to the interference of certain causes, exercised jurisdiction and sovereignty, according which prevented her resorting to measures for to the agreement, to this present time; and then relief against a mistake as to the boundary line, sets up as a defence, that the state of Massa- alleged to have been established by the com chusetts had occupied and exercised jurisdic-missioners of Rhode Island and Massachusetts. tion over the territory from that time up to the The state of Massachusetts, by the demurrer, present. The defendants then plead the agree- admits these facts as stated; and the facts as ments of 1710 and 1718, and unmolested pos- serted in the bill of Rhode Island must be taken session from that time, in bar to the whole bill as true. It is, therefore, not necessary to decide of the complainant. The court held, that this whether they are sufficient to excuse the delay. plea is twofold: 1. An accord and compromise But when it is admitted by the demurrer that of a disputed right. 2. Prescription, or an un- Rhode Island never acquiesced, but has from molested possession from the time of the agree-time to time made efforts to regain the territory ment. These two defences are entirely distinct and separated, and depend upon different principles. Here are two defences in the same plea, contrary to the established rules of pleading. The accord and compromise, and the title by prescription, united in this plea, render it multifarious, and it ought to be overruled on this account. Ibid.

18. The state of Rhode Island filed a bill against the commonwealth of Massachusetts, claiming that the boundary between the two states should be settled by the supreme court, according to the provisions of the original charters of the states, respectively, stating that the line which had been agreed upon by the commissioners acting for the states while colonies, had been agreed to by the commissioners of Rhode Island, under a mistake; and setting forth the charters of both the states, the proceedings of the commissioners, the acts of the legislatures respectively, and many other matters connected with the subject in controversy. To this bill the state of Massachusetts entered a general demurrer. The demurrer was overruled. Rhode Island v. Massachusetts, 15 Peters, 234.

19. It is one of the most familiar duties of a court of chancery to relieve against mistake; especially where it has been produced by the misrepresentations of the adverse party. Ibid.

20. The demurrer of the state of Massachusetts to the bill of Rhode Island, admits the charter lines of both the states to have been three miles south of Charles river; that the place marked, and from which the line was agreed to be run, was seven miles south of the river, instead of three miles, and was fixed on by mistake; and that the commissioners of Rhode Island were led into this error by confiding in

by negotiations with Massachusetts, and was prevented, by the circumstances she mentions, from appealing to the proper tribunals to grant her redress, the court cannot undertake to say the possession of Massachusetts has been such as to give her a title by prescription; or that the laches of Rhode Island has been such as to for feit her right to the interposition of a court of equity. Ibid.

22. It would be impossible to adopt the same rule of limitations in the case before the court on these pleadings. Here two political communities are concerned, who cannot act with the same promptness as individuals. Other circumstances in the case interpose objections. The boundary in question was in a wild, unsettled country, and the error in fixing the line not likely to be discovered until the lands were granted by the respective colonies, and the settlements approached the disputed line. And the only tribunal that could relieve, after the mistake was discovered in 1740, was on the other side of the Atlantic, and was not bound to hear the cause and proceed to judgment, except when it suited its own convenience. The same reasons that prevent the bar of limitations, make it equally evident that a possession so obtained and held by Massachusetts, under such circumstances, cannot give a title by prescription. Ibid.

See SUPREME COURT OF THE UNITED STATES.

BOUNTY LANDS.

Under the act of 1st March, 1800, bounty lands are secured to patentee, and a contract for the sale of them is void. Smith v. Shane and Meigs, 1 M'Lean's C. C. R. 30.