the spring, it seems to be required that both calls should be satisfied. Thus, in the case now under the consideration of the court, the call for a beginning twelve miles below the mouth of Licking would be sufficiently descriptive, and is sufficiently precise to be locative. It would be unquestionably good were it not accompanied with the additional call for a hickory and sugar tree. Whether it is vitiated by this additional call is to be determined by a reference to the decisions any preference over the other, and leaving the search for the land, the entry is defective, unjudgment in such a state of doubt and perplex-less the particular object be one of sufficient ity as to be incapable of deciding the real posi- notoriety. If, after having reached the neightion of this land? Would he say the whole borhood, the locative object cannot be found land must lie twelve miles from the mouth of within the limits of the descriptive call, the enLicking? This is so clearly and definitely re-try is equally defective. They must both be quired that the entry will admit of no other *found; and neither can be discarded [*212 construction. That the subsequent words di- unless deemed immaterial. A single call may 210*] recting *him to run up the river from be, at the same time, so notorious and So that point 1,060 poles, and thus approach the formed, as, for example, a spring of general nomouth of Licking, are not explanatory but con- toriety, as to constitute in itself a call both of tradictory? That the one or the other must be description and location; but if this call be actotally discarded? Were this the real impres-companied with another, as a marked tree at sion which would be made on the mind, it cannot be denied that the state of uncertainty in which these equal and irreconcilable descriptions would place a subsequent locator, ought to vitiate the entry. But if, on the contrary, the obvious and natural construction would be that, since every part of the land cannot be placed precisely twelve miles below the mouth of Licking, the distance is applicable to any part of the tract, and this part of the description may be so explained and controlled by other parts as to receive a meaning different in Kentucky. from that which it would have if standing alone, then the subsequent locator would take the whole description together, and if its different parts could, without difficulty, be reconciled, he would reconcile them. He would say the beginning must be twelve miles from the mouth of Licking, but the residue of the land must approach that place because the entry requires positively to run from the beginning up the river. This would, it is thought, be the manner in which this entry would be understood by a person guided by no other light than is furnished by human reason. But the courts of Kentucky have constructed a vast and complex system, on the entire preservation of which their property depends, and this court will respect that system as much as the courts of Kentucky themselves. The case of Grubbs et al. v. Rice, 2 Bibb, 107, depended on the validity of an entry made in these words: "James Thomas enters 300 acres of land, etc., on the south side of Kentucky, about two miles below the mouth of Red River, beginning at a tree marked I. S. on the bank of the river, and running down the river for quantity." No tree marked I. S. was found at or near the distance required. It was proved that a tree had been marked I. S. by the person who afterwards made the entry for Thomas, and that it stood on the south side of Kentucky; but instead of being two miles it was three miles and a quarter, by the meanders of the river, and two miles and two-thirds of a mile on a direct course, below the mouth of Red River. *The inferior court disregarded the call [*213 for the tree, and fixed the beginning of the entry at the termination of two miles below the mouth of Red River. On an appeal this decree was reversed, and Judge Wallace, in delivering the opinion of the court, said: "This rejection of the call for the tree marked I. S. is certainly subversive of the well-established principle that no part of an entry ought to be rejected unless what is evidently inere surplusage, or absolutely repugnant to other expressions which are more important; because, to do more would not be construing entries, but mak 211*] *In applying the decisions of that country to this cause, we find many points now settled which were formerly controverted questions. In taking the distance from one point to another on a large river the measurement is to be with its meanders, not in a direct line. And in ascertaining a place to be found by its distance from another place, the vague words "about," or "nearly," and the like, are to be discarded, if there are no other words rendering it necessary to retain them; and the distance mentioned is to be taken positively. A subsequent locator, then, must look for the begining them. But the expression 'about two miles ning called for in this entry twelve miles below the mouth of Licking, measured by the meanders of the Ohio. below the mouth of Red River' is obviously only a general call, and to substitute this in the place of the expression 'beginning at a tree marked I. S.,' etc., which is the only special or locative call in the entry, is still more inadmissible." In construing locations some other principles have been established which seem to be considered as fundamental. Entries made in a wilderness would most generally refer to some The case of Kincaid v. Blythe and others, 2 prominent and notorious object which might Bibb, 479, turned on the validity of an entry direct the attention to the neighborhood in made "on a branch of Silver Creek, about four which the land was placed; and then to some miles from the little fort on Boone's old trace, particular object which should exactly describe including a tree marked D. B." In this case, it. The first of these has been denominated too, the inferior court disregarded the call for the general or descriptive call, and the last the the tree, which could not be proved to have particular or locative call of the entry. Reason-existed when the location was made, and di able certainty has always been required in both. If the descriptive call will not inform a subsequent locator in what neighborhood he is to rected the land to be surveyed at the termi nation of the distance of four miles from the little fort. On appeal, this decree also was reversed, and, in delivering the opinion of the and just construction of it, as to the general court, Judge Wallace said: "It is evident that body and position of the land it calls for." when the entry was made, Boone's old trace, *This case, if not overruled, certain- [*216 the little fort, and Silver Creek, were all well ly goes far in distinguishing between a call for known by those names to the generality of a marked tree, and for a tree not marked, pro214] those who were conversant in the vi- vided such trees as the call requires are found cinity. And it further appears that about four about the place where the entry must begin. It miles from the little fort, on a southern direc- goes further, and strongly indicates the opinion tion, Boone's old trace struck Hayes' fork of that an unmarked tree was an object of less Silver Creek, which may be presumed to be the importance in the mind of the locator than one branch of Silver Creek intended; and, if the selected from all others by a mark peculiar to entry contained no other calls, it would de- itself. While the latter must have been deemed serve serious consideration whether the place important, and have strongly fixed his attenwhere the trace crossed Hayes' fork of Silver, tion, the former may have been thought not Creek ought not to be assumed as the center of very essential. Coming to the place where he the survey to be made thereon. But this entry intended to begin, looking around him when calls to include a tree marked D. B., which is there, and seeing trees of a particular kind obviously a locative and material call, and, from the common growth, he might suppose it therefore, conformably to the uniform decisions unimportant at which of these trees he should of this court on similar entries, must be taken commence and call for one of them. In such into consideration in deciding on this entry." a case, a court may well say "whether the call These cases are admitted to have settled the is regarded or rejected in the construction of law to be that a material locative call, as for a the entry is totally immaterial." There is much marked tree, cannot be disregarded; and that, reason for this opinion. Certainty is required if the existence of the tree cannot be proved, in entries for the purpose of giving notice to the entry cannot be sustained. The only dis-subsequent locators. The subsequent locator tinction between these cases and that under the consideration of the court is that, in them, the entries call for a marked tree; in this it calls for a sugar tree and hickory, not stating them to be marked. For the importance of this distinction we are again referred to the decisions of Kentucky. who comes to the place described in the entry, in order to find the land he wishes to avoid, will, if a marked tree be called for, search for that marked tree; and, if it cannot be found, may well conclude that this is not the land intended to be appropriated; but if only a tree is called for, and trees stand all around him, he will naturally suppose that the nearest may be taken as a beginning, and that to him it is quite immaterial whether the commencement be at the spot on which he stands or within ten feet or ten yards of him. *The subsequent [*217 locator is not misled by this call; nor is there any danger of his mistaking the position of the land. It is not without reason, therefore, that the call is pronounced immaterial, and one which may be regarded or rejected. The entry may be sustained by other calls which are sufficiently precise to sustain it. The case of Greenup v. Lyne's heirs,' turned on an entry of land “lying on Kentucky River, opposite to Leesburg, beginning at a beech tree and running up the river and back for quantity." The validity of this entry was affirmed in the inferior court, and, on an appeal, was 215] also affirmed in the Superior Court. *In delivering the opinion of the superior court, Judge Logan said: "Had the only call in the entry been to lie on the river opposite to Leesburg we should have concurred with the Circuit Court in the manner of surveying it, by running up and down the river equal distances from a point opposite the centre of Leesburg; and if the call to begin at "a beech tree" had been the only other call, we should still have thought that opinion correct, as the common growth of the timber there is beech, and a tree of the description could have been had at almost any point within the limits of the claim. This circumstance, we conceive, ought not to affect the entry; for whether the call is regarded or rejected, in the construction of the entry, is totally immaterial; because, it seems to the court that where an uncertainty arises from the number of objects presented, answering the calls of an entry, and it has other calls sufficiently precise to sustain it, that, of the many doubtful objects, that should be taken as intended, which will best preserve the consistency of the others; and in this case it seems the call for the tree could be complied with without changing in the least the position given by the first call, so that it is left as an immaterial call. We are more confirmed in this opinion when we consider that the entry, from any other view, must be invalid for uncertainty, although we believe no one could doubt, from a liberal The difference between calling for a marked 1.-2 Bibb, 369. If in the case at bar it had been proved that sugar trees and hickories were as common at the termination of twelve miles from the mouth of Licking as the beech tree opposite to Leesburg, the two cases would, in this respect, be precisely alike. But this is not proved. Only one witness has been examined to this point, and his testimony is that there are sugar trees on the bank of the Ohio, in the neighborhood, and that the maple or sugar tree might be found for many miles above and below the corner, standing within fifty yards of each other, on the second bank of the river. The report of the surveyor shows that three elms and a hickory stood at the termination of the twelve miles from the mouth of Licking. There would certainly be much difficulty in supporting this as a locative call, although it is not absolutely certain that it might not be so supported. The not less important question is, whether it may be considered as an immaterial call. No case has been cited in which the call for an unmarked tree has been thought material; and there are cases in which a circumstance not important in itself has been dispensed with. and an unmarked tree has been *al- [*218 ready noticed. It is difficult to suppose that 1 by one which was more particular. That more particular description was, "running up the river and back for quantity." These cases are in principle the same. The one calls for land twelve miles below the mouth of Licking, which description would require land the nearest part of which is at the given distance; the other calls for land lying opposite Leesburg, which requires a tract the center of which is opposite to the center of the town. The one calls for a beginning at a sugar tree and hickory, without naming a place for the beginning otherwise than by the description of the position of the land; the other calls for a beech tree under precisely the same circumstances. In the case of Greenup v. Lyne's Heirs the words "running up the river and back for quantity" have changed the place of beginning from the center to the lower end of the town, and the position of the land, so that instead of lying above and below Leesburg, in equal quantities, it lies entirely above that place. Why shall not the same words influence in the same manner, the position of Pannel's land? they are viewed as equally important by the to the center of the town, and a square would The second question is, in what manner ought this entry to be surveyed? It is admitted to be a general principle that, where a location calls for land to lie a given distance from a given point, the whole land must be placed at or beyond that distance, if there be no other words in the location which control this construction. But it is not admitted that this call can overrule the plain meaning of the whole entry taken together. It is believed to be unquestionably decided that every material part of the entry is to be considered, and that such construction is to be put upon the whole as is best adapted to all its material calls. This principle was laid down in Greenup v. Lyne's Heirs, which, on this point, bears a strong analogy to that under the consideration of the court. In Greenup v. Lyne's Heirs the entry called for land "lying on Kentucky Riv"er, opposite to Leesburg, beginning at a beech "tree, and running up the river and back for "quantity." It is perfectly settled in Kentucky, that on a call for land lying opposite to Leesburg, the cen220*] ter of the *land would be placed opposite From the language of Pannel's entry, every man would expect the survey to begin at the place called *for, twelve miles below [*221 the mouth of Licking. If that is not the beginning the location is unquestionably uncertain and void. If that is the beginning it is the plain mandate of the entry to run up the river 1,060 poles and back for quantity. It is the opinion of the majority of the court that the decree ought to be affirmed with costs. Decree affirmed. [Common Law.] PATTERSON v. THE UNITED STATES. A verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that form to a general finding, so as to make it harmonwhich is in issue; and, though the court may give ize with the issue, yet if it appears that the finding is different from the issue, or is confined to a part rendered upon the verdict. only of the matter in issue, no judgment can be In an action of debt, upon a bond to the United States, with condition that certain merchandise imnot be relanded within the United States, and that ported, and reshipped for exportation, should the certificate and other proofs required by law, of the delivery of the same, without the limits of the United States, should be produced at the collector's office, within one year from the date of the bond, an issue was formed upon the defendant's plea, that the merchandise was not relanded, etc., and that the certificates and other proofs required by law, of the delivery of the same at Archangel, in Russia, were produced, etc., within one year from the date of the bond. The jury found a verdict that, "the within-mentioned writing obligatory is the deed of the within-named R. P., etc., and they find there is really and justly due upon the *222 said writing obligatory the sum of $23,989.58." Held, that the verdict was so defective no judgment could be rendered upon it. nounced. A circuit court has no authority to issue a certi- | which a rejoinder was put in affirming that the orari, or other compulsory process, to the District certificate and other "proofs were pro- [*224 Court, for the removal of a cause from that jurisdiction, before a final judgment or decree is produced at the said office within the said year, upon which an issue is tendered and joined. The same issue is formed upon the second plea, and to the third plea a general demurrer was put in. In such a case, the District Court may, and ought, to refuse obedience to the process of the Circuit Court, and either party may move the Circuit Court for a procedendo, after the transcript of the record is removed into that court, or may pursue the cause in the District Court as if it had not been removed. But if the party, instead of properly taking advantage of the irregularity in the proceedings, enters his appearance in the Circuit Court, takes defense, and pleads to issue, it is too late, after verdict, to object to the irregularity, and the Supreme Court will, on error, consider the cause as an orig inal suit in the Circuit Court. THIS The demurrer was, upon argument, sustained, and judgment was entered against the defendant for the penalty of the bond. A jury was afterwards impaneled to try the issue who found the following verdict, viz.: That the within-mentioned writing obligatory is the deed of the within-named Robert Patterson, etc., and they find there is really and justHIS cause was argued by Ogden and Har-ly due upon the said writing obligatory the per for the plaintiff in error, and by the sum of $23,989.58.” Attorney-General and Glenn, for the United States. But as the points made were not considered by the court, and judgment was pronounced on other grounds, the argument is omitted. Washington, J., delivered the opinion of the court: This was an action of debt instituted in the District Court of Maryland by the United States, against Robert Patterson, the plaintiff in error, upon a bond, dated the 2d of August, 1809, in the penalty of $35,000, with condition that certain merchandise, which had been imported into the United States, and which the said Patterson had then reshipped, in order to export the same to Tonningen, should not be relanded in any port or place within the United States, and that the certificate and other proofs 223*] required by law of the delivery of the same, at some place without the limits of the United States, should be produced at the collector's office of the port of Baltimore, within one year from the date of the bond. Upon this verdict the court gave judgment in favor of the United States, for $35,000, to be released on the payment of the above sum assessed by the jury, from which judgment a writ of error was obtained to remove the cause to this court. The court considers it to be unnecessary to decide the questions which were argued at the bar, as the verdict is so defective that no judg ment can be rendered upon it. The issue which the jury were sworn to try was, whether the certificate and other proofs required by law, of the delivery of the cargo. at some place without the limits of the United States, were produced at the collector's office at Baltimore within one year from the date of the bond. The verdict does not find the matter in issue one way or the other, but finds that the bond in the declaration mentioned is the deed of the defendant, and that there is justly due to the United States, upon the said bond, a certain sum of money. But whether the bond [*225 was the deed of the defendant or not was not a matter in issue between the parties, and, consequently, it was a false conclusion to say that, because it was his deed, therefore he was in After the declaration was filed in the District Court, and the defendant had entered his ap-debted to the United States. pearance and taken defense, a writ of certiorari, The rule of law is precise upon this point. A issued from the Circuit to the District Court, verdict is bad if it varies from the issue in a in obedience to which the record of the pro- substantial matter, or if it find only a part of ceedings in that court was certified and sent up that which is in issue. The reason of the rule to the Circuit Court. In this court the defend- is obvious; it results from the nature and the ant again took defense, and after sundry im- end of the pleading. Whether the jury find a parlances, and having had oyer of the bond general or a special verdict, it is their duty to and condition, he pleads, 1st. Performance decide the very point in issue; and althoguh the generally of the condition. 2d. That the mer-court in which the cause is tried may give form chandise mentioned in the condition of the bond to a general finding, so as to make it harmonize was not relanded in the United States, and that with the issue, yet, if it appears to that court, the certificate and other proofs required by or to the Appellate Court, that the finding is law of the delivery of the same at Archangel, different from the issue, or is confined to a part in Russia, were produced at the said collector's only of the matter in issue, no judgment can be office within one year from the date of the said rendered upon the verdict. bond. 3d. That the said merchandise, or any part thereof, was not relanded in the United States, and that the certificates and other proofs required by law of the delivery of the same at Archangel, in Russia, were produced to the said collector's office on the 11th day of No-those which are in issue. vember, in the year 1811. The replication to the first plea alleges a breach of the condition of the bond in not producing to the said collector's office the certificate and other proofs required by law of the relanding in some place without the limits of the United States, within one year from the date of the said bond, to It is true that if the jury find the issue and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in the verdict ars substantially variant from The court deems it proper to take some notice of the mode of proceeding, for removing this cause from the District to the Circuit Court. It is believed to be novel in the practice of the courts of the United States; and it certainly wants the authority of law to sanction it. There is no act of Congress which authorizes a Circuit Court to issue a compulsory process to the District Court, for the removal of a cause from 226*] *that jurisdiction, before a final judgment or decree is pronounced. The District Court, therefore, might, and ought to have refused obedience to the writ of certiorari issued in this case by the Circuit Court, and either party might have moved the circuit for a procedendo after the transcript of the record was zens," or "inhabitants," when applied to persons owing allegiance to the United States, and extends to all persons domiciled in the Spanish dominions. *The Spanish character of the ship being [*228 ascertained, the proprietary interest of the cargocannot be inquired into, unless so far as to ascertain that it does not belong to citizens of the United States, whose property, engaged in trade with the enemy, is not protected by the treaty. removed into the Circuit Court, or might have Atrict of Georgia. PPEAL from the Circuit Court of the Dis pursued the cause in the District Court in like manner as if the record had not been removed. But if, instead of taking advantage of this irregularity at a proper time, and in a proper manner, the defendant enters his appearance to the suit in the Circuit Court, takes defense, and pleads to issue, it is too late, after verdict, to object to the irregularity in the proceedings. This court will consider the suit as an original one in the Circuit Court, made so by the consent of parties. Had a new declaration been filed in the Circuit Court, no doubt could be entertained as to the correctness of this conclusion. And it is not going too far to consider the declaration sent from the District Court in the same light, after appearance, issue, and verdict. This is the opinion of the majority of the court. THE PIZARRO. Hibberson and Yonge, Claimants. If the court below deny an order for further proof when it ought to be granted, or allow it when it ought to be denied, and the objection is taken by the party, and appears on the record, the Appellate Court can administer the proper relief. But, if evidence in the nature of further proof be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent, and the irregularity is waived. Concealment or spoliation of papers is not, per The ship Pizarro, under Spanish colors, was captured on the 23d of July, 1814, by the private armed schooner Midas, Alexander Thompson, commander, on a voyage from Liverpool to Amelia Island, and brought into the port of Savannah for adjudication. Prize proceedings. were instituted in the District Court of Georgia against the ship and cargo, and a claim was duly interposed by Messrs. Hibberson and Yonge, merchants, of Fernandina, Amelia Island, for the ship and cargo, as their sole and exclusive property. Upon the final hearing in the District Court, the ship and cargo were decreed to be restored, and this decree was, upon an appeal to the Circuit Court, affirmed; and from the decree of the Circuit Court the cause was brought by appeal to this court. It appears from the evidence that during the voyage a package, containing papers respecting the cargo, directed to Messrs. Hibberson and Yonge, was thrown overboard by the advice and assent of the master and supercargo. The reason alleged for this proceeding is that they were then chased by a schooner, which they supposed to be a Carthaginian privateer. The ship's documents, however, were *re- [*229 tained, in which her Spanish character is distinctly asserted. These documents were as follows: 1. A certificate of the Spanish consul at Liverpool, dated the 11th of September, 1813, certifying that the Pizarro was a Spanish ship, bound to Corunna. 2. A certificate from the same, of the same date, that Messrs. Hughes and Duncan had shipped 250 tons of salt on board the Pizarro for Corunna, consigned to Messrs. Hibberson & Yonge. 3. A certificate of health, dated at Fernandia, the 20th of December, 1813. 4. A letter from Messrs. Hibberson & Yonge, of the 10th January, 1814, to J. Walton, the navigator or sea pilot, ordering him to sail to Liverpool. 5. A bill of lading, signed by Martinez, the master, for the outward cargo. 6. The affidavit of Messrs. Hibberson & Yonge, that they had shipped the same cargo on their own account, consigned to Messrs. Hughes & Duncan, etc. 7. The shipping articles from Amelia Island to St. Augustine, or any other port in Europe, and back, dated the 11th of January, Under the Spanish treaty of 1795, stipulating 1814. 8. Shipping articles from Liverpool to that free ships shall make free goods, the want St. Augustine, and back to Liverpool, without of such a sea-letter or passport, or such certificates as are described in the 17th article, is not a sub- a date. 9. A license from the Governor of East stantive ground of condemnation. It only au- Florida, authorizing Messrs. Hibberson & thorizes capture and sending in for adjudication, and the proprietary interest in the ship may be proved by other equivalent testimony. But if, upon the original evidence the cause appears extremely doubtful and suspicious, and further proof is necessary, the grant or denial of it rests on the same general rules which govern the discretion of prize courts in other cases. se, a sufficient ground for condemnation in a prize court. It is calculated to excite the vigilance and justify the suspicions of the court, but is open to explanation, and if the party, in the first instance fairly, frankly, and satisfactorily explains it, he is deprived of no right to which he is otherwise entitled. If, on the contrary, the spoliation is unexplained, or the explanation is unsatisfactory; if the cause labor under heavy suspicions or gross prevarications, further proof is denied, and condemnation ensues from defects in evidence which the party is not permitted to supply. The term "subjects" in the 15th article, when applied to persons owing allegiance to Spain, must be construed in the same sense as the term "citi Yonge to buy a vessel in the United States, and the copy of a bill of sale from Messrs. S. & W. Hale, of New Hampshire, by their agent Kimbell, dated the 24th of February, 1813, together with an order of the governor, of the 6th of March, 1813, naturalizing the ship, or permitting her to sail under Spanish colors. *In the District Court, the cause was [*230 |