to direct the jury that the demandant was not entitled to recover in the suit, upon the proof by the tenants, that they claim their several tenements under distinct and several titles. This refusal was perfectly correct; for the matter did not go to the merits, and could be taken advantage of only, as has been already stated, by a plea in abatement.

*The next exception is, that the court [*310 allowed a copy of the survey of the land claimed by the demandant to go in evidence to the jury, for the purpose of identifying the same. No ground for this objection has been stated; and it seems to be utterly untenable.

court to allow them severally to plead, in addi- | upon the prayer of the counsel for the tenants, tion to the mise, or general issue, that neither the plaintiff nor his ancestor, nor any other under or from whom he derived his title to the demanded premises, were ever actually seized or possessed thereof, or of any part thereof; which motion the court refused to grant. And, in our judgment, this was very properly done. In the first place, this plea was clearly bad, as amounting to the general issue, and, indeed, for other manifest defects. In the next place, it was an application to the mere discretion of the court, which is not a subject of examination upon a writ of error. The court then permitted the tenants to sever in pleading, and to plead the mise severally as to several tenements held by them, parcel of the demanded premises, without answering or pleading anything as to the residue. Upon the propriety of this pleading we give no opinion, as it is not assigned for error by the demandant, and the error, if any, is in favor of the tenants. The replication prescribed by the act of Kentucky, was pleaded to the several pleas; and upon the mise so joined, the parties proceeded to trial. The court being divided upon several points made at the trial, the jury was discharged. At a subsequent term, the tenants again moved the court for leave to withdraw the mise joined, and to plead non-tenure as to some, and several tenancy as to others, in abatement, which was refused by the court; and in our judgment, for the reasons already stated, was properly re309*] fused. *The cause was then again tried by a jury, who returned a general verdict for the demandant, which, under the direction of the court, was amended by the jury, and recorded as follows: "The jury find that the demandant hath more mere right to hold the ten-to instruct the jury, that if it should be proved ement, as he hath demanded, than the tenants, or either of them, have to hold the respective tenements set forth in their respective pleas, they being parcels of the tenement in the count mentioned."

It is objected by the tenants that this verdict is insufficient, because it does not contain a several finding upon the several issues of the tenants, but is a joint finding against them all; and only by inference and argument a finding of the several issues for the plaintiff. This objection cannot be sustained. The verdict expressly and directly affirms the right of the demandant, and denies the right of the tenants to the land contained in their respective pleas, the same being parcel of the land demanded. A verdict, certain to a common intent, is sufficient to sustain a judgment. At the trial, a bill of exceptions was taken. The first point in the exceptions is the refusal of the court,

1. A writ of right patent is always directed to the lord of the manor, or his bailiff, and is a commission unto them that they should do right. The form of the writ is, "we command you that, without delay, you do full right (plenum rectum teneatis) to A, of B. of one message, etc., in I, with he claims to hold of you by the free service of one penny per annum for all service, of which W, of T. deforceth him, and unless you will do this let the sheriff of, etc., do it, that we may hear no more clamor thereupon for want of right. Witness, etc." Fitz. N. Brev. 1, G. Bracton, lib. 5, ch. 2, p. 328; Reg. Brev. 1, Glanville, lib. 12, ch. 3, ch. 4:3 Bl. Com. ap. 1. This writ is the sole authority for the lord to hold plea of the land in controversy; and without it no one is bound to answer in the

Another exception is, that the court refused to allow, as evidence to the jury, to prove that the demandant did not hold the legal title to 2,000 acres, parcel of the land demanded in this suit, the copies of a certain record of a decree in chancery, in a suit between the demandant and third persons (with whom the tenants had no privity of title or estate), and, also, of a deed made in pursuance of such decree, by which deed 2,000 acres of the land demanded by the writ appeared to be conveyed to third persons. This exception is not now relied on, and is certainly open to various objections. Without adverting to the objections that neither the record nor the deed were properly authenticated, and that it was an attempt to set up an outstanding title in third persons having no privity with the tenants; it is decisive against the admission that the 2,000 acres, or any part thereof, are not shown to be within the boundaries of the land claimed by any of the tenants, or put in issue between the parties.

The last exception is, that the court refused

that divers of the tenants had no title to certain parcels of the demanded premises, but that they claimed the same under a third person having the legal title thereof, then, that they ought to find for the said *tenants, be- [*311 cause they had no title. This exception is, also, not relied on, and certainly could not be supported, for it could be given in evidence only on a plea of non-tenure.

A motion was afterwards made for a new trial, the proceedings on which, not being matters of error, need not be mentioned.

The only remaining objection, urged as a ground for reversal, is, that the judgment is a joint judgment against the tenants for the costs as well as the land. We are all of opinion that the judgment is right, and that the tenants can take nothing by this objection.

The judgment is, therefore, affirmed with costs.
Judgment affirmed.1

It is

lord's court. Glanville, lib. 12, ch. 2, ch. 25.
called a writ of right patent, because it is an open
letter of request, or command given to the plaintiff,
and exposed to full view, in contradiction to writs
close, which are always closed up and sealed, or are
supposed to be closed up and sealed, and directed to
particular persons. 2 Bl. Com. 346; 3 Bl. Com.
195; 3 Reeve's Hist. 45; Fitz. N. Brev. 1 F. When
the writ of right patent was brought to the
lord's court, an entry thereof was made in his
*court by the steward, and the writ_was [*312
then delivered back to the plaintiff. Upon the en-
try a summons issued from the lord's court to the
tenant, commanding him to appear at the next
court to answer the plea; and this was the first
process by which the tenant had any knowledge of

|

Story, J., delivered the opinion of the court: | Christian. This is a bill in equity brought by the appellees, who are the heirs at law and devisees of Henry Miller, deceased, to be relieved against the claims of the appellants under prior patents to a tract of land, to which the appellees assert a prior equitable title under a prior entry by their ancestor.

One in the name of Chapman Austin is dated 26th of June, 1780, for 4,000 acres of land lying on Red River, and another in the name of Israel Christian, dated the 5th of December, 1782, for 2,000 acres of land lying on the same river; but there is no proof in the cause that these entries are in the neighborhood of each other. The entries relied on by the complain318*] *On the 11th of December, 1782, ants as those referred to in Miller's entry are the said Henry Miller made the following as follows: "On the 26th of June, 1780, entry: "Henry Miller enters 1,687 acres of Chapman Austin enters 4,000 acres on the diland on a treasury warrant, No. 6,168, adjoin-viding ridge between Hinkston's Fork and the ing Chapman Aston on the west side, and south fork of Licking, beginning two miles Israel Christian on the north, beginning at north of Harrod's Lick at a large buffalo road, Christian's north-west corner, running thence and *running about a north course for [*319 west 200 poles, thence north parallel with As- quantity." "On the 29th of November, 1782, ton's line until an east course to Aston's line Israel Christian, assignee of Archibald Thompwill include the quantity." Henry Miller died son, enters 200 acres of land upon a military in 1796, and in 1804 this entry was surveyed, warrant, No. 193, adjoining an entry of Chapand after that time a patent issued thereupon in man Austin, at his south-west corner on the didue form of law. At the time of the death of viding ridge between Hinkston's and Stoner's Miller, and also of the survey of the entry, Fork, two miles north of Harrod's Lick, runseveral of the plaintiffs were under age, and ning thence west 200 poles, thence north until some of them at the commencement of the suit an east course to strike Austin's line will incontinued to be under age. clude the quantity."

validity of the entry of Miller. It is, in the first place, contended, that it is void, because it contains no sufficient description of the posiother real action, and the ancient writers who treat on the subject evidently presuppose its legal validity; and the more modern authorities are couclusive on the point. When, therefore, the court in the above case, in allusion to the passage above quoted from Fitzherbert's Natura Brevium (2 D), state that "assuming at common law a writ of right patent may be brought against several tenants who hold their lands severally, and that the demandant may count against them severally, it does not, therefore, follow that this doctrine applies to a writ of right close;" it is manifest that the court have reference to the different natures of the two writs in their original state; for upon a view and after a count in a writ of right patent, if several tenements are jointly demanded of several tenants, who are jointly summoned, they may plead several tenancy in abatement of the count or lands put in view upon the writ. And as a writ of right close demands the tenements directly of the tenants, they may plead several tenancy directly to the writ, for in a præcipe quod reddat it is a good plea in the writ. Com. Dig. F. 12; Thel. Dig., lib. 5, ch. 3, s. 1, ch. 4, s. 2; 27 Hen. 8, 30.

There was not, on the 11th of December, The appellants having the elder grant, the 1782. any entry upon record in the entry-first question arising in the cause is as to the taker's books in the name of Chapman Aston. But there were several in the name of Chapman Austin, and several in the name of Isaac subject is again mentioned. "Cum autem tenens visum habuerit, vel quod tantundem valet, scire poterit utrum petenti respondere teneatur, et ad breve secum vel non teneatur secundum quod tenuerit totam rem nomine proprio, vel alieno, vel nihil inde tenuerit, vel non nisi ejus partem; quia si totam non tenuerit, amittere non potest quod non habet. et ita cadit breve, sed non actio. nisi ita sit quod petens ostendere possit quod tenens teneat in dominico et in servitio, nisi tenens docere possit contrarium, quod nec in dominico nec in servitio, etc., etc. In hæc quidem actione per breve de recto sicut in qua libet alia actione per quam petitur res corporalis designare oportet petentem quae et qualis sit res quae petitur, ut si sit res immobilis sicut tenementum designare oportet qualitatem et quantitatem, etc. utrum tota petatur an ejus pars, et ne plus petatur a petente quam tenens teneat.' Bracton, lib. 5, ch. 27. fol. 431, b. 432, a; Vide also, Id. p. 433, b. Fleta, lib. 5, ch. 5, s. 4, asserts the same doctrine: "Item continetur in brevi qui terram illam tenet, ad quod excipi poterit quod totum non tenet sed alius talis tenet inde tantum." These quotations have been the more largely made from these venerable writers, with a view to show how deeply and early these doctrines are to be found in the rudiments of the common law.

Item

It has been very justly observed by Booth (ch. 11. p. 31), that in real actions may be pleaded in abatement of the writ, joint tenancy, sole tenancy, and several tenancy. And although it is said that in a writ of nuper obiit, in an assize, or in any other action where no land certain is demanded, several tenancy is not pleadable (Bro. Sev. Tenancy. 18; 2 Leon, 8), yet this is to be understood, that several tenancy is not pleadable to the writ; for after a plaint in an assize, several tenancy may well be pleaded in abatement. Stepkin v. Wentworth, Dyer, 244, a: Booth, 34. 277. And several tenancy, if well pleaded and found true, abates the whole writ; and the cause assigned for this by Fincledon, Ch. J., in 41 Edw. III, 20. b, is because the tenants cannot answer in common. Fitzherbert laid down the same rule in 27 Hen. 8, 30, and said "ceo several tenancy va in abatement de tout le breve, et si il soit tried versus le demandant donques tout son breve abatera, et nous impoimous done judgment pour le demandant sur un male breve." Brook's Abrid. Several Tenancy, 1. The 315] same rule is recognized in Theldall's *Dig. lib. 11, ch. 31, s. 7. Nor is there a single case in the books, in which it has been argued or held that several tenancy is not a good plea in abatement to a writ of right. On the contrary, the reasons for the plea as manifestly apply to this action as any

In the United States all writs of right are returnable into the common law courts of the state and are directed to and returnable by the sheriff or other public officers. They are, therefore, writs of right close, and subject to the general doctrines of the common law applicable to such writs; and it is manifest that the doctrine of Fitzherbert (even supposing it to be law as to writs of right patent) cannot be admitted to control those general doctrines, or take away the right of pleading joint tenancy, sole tenancy, or several tenancy, in abatement of such writs.

Writs of right, since the reign of Queen Elizabeth, have gradually become obsolete in England; or of such rare occurrence, that the learning respecting them is not as well known as it deserves to be. Indeed, a modern treatise upon the general nature and structure of real actions, and the proper pleadings and evidence in each, is a desideratum in the science of jurisprudence. We may, however, respectfully refer those who may be desirous of a more thorough knowledge of the writ of right to the title Droit, in the great abridgments of Brook. Fitzherbert, Comyns, and Viner, to the learned note of Mr. Sergeant Williams, 2 Saund. Rep. 45; to Booth on Real Actions; *to Reeves's [*316 History of the law; and particularly to 1 Reeves's History, ch. 7, p. 398, et seq.; and 3 Reeves's History, 45, and above all, to the venerable Bracton. lib. 5, fol. 327, et seq; where he treats of the writ of right and its incidents.

tion of the land, and no specific reference to | reasonable. Is, then, the entry void for reany other definite entries to make it certain. pugnancy or uncertainty, or can it be susIt is, in the next place, contended, that it is tained by rejecting the call for a large buffalo void, because Chapman Austin's entry, on road? It is a general rule that when all the which it is dependent, is void for uncertainty. calls of an entry cannot be complied with, beThere is certainly a mistake in Miller's en- cause some are vague, or repugnant, the latter try, as to the name of Aston, and the defect may be rejected or controlled by other material cannot be cured by considering Aston and calls, which are consistent and certain. On Austin as one name, for they are not of the this account, course and distance yield to same sound. But an error in description is known, visible, and definite objects. But not fatal in an entry, if it does not mislead course and distance do not yield unless to calls a subsequent locator. Upon searching the more material and equally certain. The loentry-book no such name could be found as cative calls in this entry are for a point two Chapman Aston; and if Miller's entry had only miles north of Harrod's Lick, and for a large called to adjoin Aston, there would have been buffalo road. If we reject the first call, the great force in the objection. But it calls also entry is void for uncertainty, for there is no to adjoin Israel Christian's entry on the north, definite starting point. If we reject the last and to begin at his north-west corner. A sub-call, the other is perfectly certain. The general sequent locator would, therefore, necessarily leaning of courts has been to support entries, if be led to examine that entry. On such ex-it could be done by any reasonable construc320*] amination he could not fail to ob- tion. *The law, indeed, declares that [*322 serve that it calls to adjoin an entry of Chap- every entry should contain a description of man Austin, at his south-west corner, on the the land so certain that subsequent locators dividing ridge between Hinkston's and Stoner's might be able to ascertain it with precision, and Fork, two miles north of Harrod's Lick. This locate the adjoining residuum. But that despecific description would clearly point out the scription is held to be sufficiently certain particular entry to which it refers. It could which, by due diligence, inquiry, and search be no other than the entry of Chapman Austin in the neighborhood, will enable a locator to for 4,000 acres, already stated; for that calls for find the land. A locator having this entry in the same ridge, and to begin at the same dis- his hands would first proceed to Harrod's tance from Harrod's Lick. Two entries would Lick, as a notorious object which was to direct thus be found adjoining each other, which all his subsequent inquiries. Upon measuring would, as to position and course, perfectly off the two miles north from the lick he satisfy the calls of Miller's entry. No other would arrive at a point clearly described in the entries could be found which would present entry. He would find himself very near the the same coincidences. A subsequent locator dividing ridge between Hinkston's Fork and could not, therefore, doubt that these were the the south fork of Licking, upon which the entries really referred to in Miller's entry, and land is unequivocally declared to lie. But he that Chapman Aston was a misnomer of Chap-could find no buffalo road in that direction unman Austin. The entry, then, of Miller, contains in itself a sufficient certainty of description, if the entries to which it refers are valid; for id certum est quod certum reddi potest.

As no objection is alleged against Christian's entry, all consideration of it may at once be dismissed. The validity of the entry of Chapman Austin remains to be examined. It calls to lie "on the dividing ridge between Hinkston's Fork and the south fork of Licking, beginning two miles north of Harrod's Lick at a large buffalo road, and running about north for quantity." It is conceded that Harrod's lick was, at the time of the entry, a place of general notoriety; and it is proved that there was no buffalo road two miles north of that 321*] lick. The nearest buffalo road *was, as its nearest approach, more than two miles from the same lick, and crossed the ridge at more than three miles distance from it; and a line drawn due north from the lick would not strike that road until after it had crossed the ridge at about four miles distance from the lick. The calls, then, in the entry cannot be completely satisfied in the terms in which they are expressed. The general descriptive call to lie on the dividing ridge, as well as the call for distance, must be rejected, if a buffalo road about four miles north of the lick were to be deemed a sufficient compliance with the call for a large buffalo road; for the whole land would then lie, not on, but beyond the ridge. Such a construction of the entry would be un

til after he had crossed the ridge, nor could he find any such road within any reasonable distance in any other direction. Under such circumstances, it is not easy to perceive how he could be misled. Being arrived at a spot, to which he was directed by a definite locative call, which he could not mistake, and by a general call which is perfectly satisfied, he would scarcely be induced to direct it in search of another call, which was not to be found in the neighborhood, and which, without the first, would be uncertain and indefinite. In the opinion of the court the call for a large buffalo road may be rejected, and the entry of Chapman Austin be supported by the other definite call for course and distance. In this opinion we are the more confirmed by the admission of counsel, that the same *entry has been [*323 sustained in the state courts of Kentucky.

Supposing the entry of Chapman Austin to be good, the next inquiry is, whether it is rightly surveyed: for if it is, then Christian's and Miller's entries are, also, rightly surveyed. It is contended that, as no base or figure is given by the entry, the land cannot be laid off in any direction; and if so, neither the survey made by order of the Circuit Court, nor, indeed, any other survey, can be good. But it is a settled rule, which has been repeatedly recognized by this court, 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 that

The title of the plaintiff's being established, Another objection to the title of the plaintiffs it is next to be compared with the titles of the is, that the survey on Miller's entry was not ex- respondents. It is conceded on all sides that ecuted and returned within the time prescribed none of the titles of the latter are of superior 324] by law. *The act of 1797, taken in dignity to that of *the plaintiffs, except [*326 connection with preceding acts, declares, that the title claimed under an entry of Thomas entries for land in general shall become void Swearingen, on a military warrant. This entry if not surveyed before the first day of October, is as follows: "On the 26th of April, 1780, 1798; with a proviso, allowing to infants and Thomas Swearingen enters 1,000 acres in Kenfemes covert three years after their several dis-tucky, by virtue of a military warrant, for miliabilities are removed to complete surveys on tary services performed by him last war, on a their entries. The ancestor of the plaintiffs died in 1796, and some of them then were, and still continue to be, under the disability of inFancy. The present entry was not surveyed until 1804.