[Magruder vs. The Union Bank of Georgetown.]

not been the administrator. It is not alleged that any difficulty existed in proceeding regularly;-the allegation is, that it was totally useless.

The note became payable on the 8th day of November 1824. The writ was taken out against the indorser on the 26th day of April 1825. If this unusual mode of proceeding can be sustained, it must be on the principle that, as the indorser must have known that he had not paid the note, as the representative of the maker, notice to him was useless. Could this be admitted: does it dispense with the necessity of demanding payment? It is possible that assets which might have been applied in satisfaction of this debt, had payment been demanded, may have received a different direction. It is possible that the note may have been paid by the maker before it fell due. Be this as it may, no principle is better settled in commercial transactions, than that the undertaking of the indorser is conditional. If due diligence be used to obtain payment from the maker, without success, and notice of non-payment be given to him in time, his undertaking becomes absolute; not otherwise. Due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the indorser depends: As no attempt to obtain payment from the maker was made in this case, and no notice of non-payment was given to the indorser, we think the circuit court ought to have given the instruction prayed for by the defendant in that court.

1

The judgment is reversed, and the cause remanded, with directions to award a venire facias de novo.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that the said cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo in said cause,

ROBERT CHINOWETH, JAMES TRACY AND THOMAS WILMOUTH, PLAINTIFFS IN ERROR VS. THE LESSEE OF BENJAMIN HASKELL AND OTHERS, DEFENDANTS.

The defendant in the court below having withdrawn his cause from the jury by a demurrer to evidence, or having submitted to a verdict for the plaintiff, subject to the demurrer, cannot hope for a judgment in his favour, if by any fair construction of the evidence the verdict can be sustained. [96]

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 natural objects which ascertain the very land which was actually surveyed. [96]

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. [96]

The line which forms the western boundary of the land intended to be granted was never run or marked. In his office the surveyor assumed a course and distance, and terminates the line at two small chesnut oaks. But where are we 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 are we to 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. [96]

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. [98]

WRIT of error to the district court of the western district of Virginia.

This case was argued by Mr Doddridge, for the plaintiff in error, no counsel appearing for the defendant. He contended :

1. That Wilson does not prove the making of any actual survey of the three last lines, and all that he does prove is that he protracted them.

2. That in protracting the line D. E. he guessed at a course

[Chinoweth et al. vs. Lessee of Haskell et al.]

and distance which he supposed would reach Young's corwhich he missed about five miles.

3. That he only proves it to have been his intention to go to Young's corner. He did not in this certificate of survey call for a corner to Young, but only for two chesnut oaks in a country where there is scarcely any other timber.

4. That course and distance, as called for, may be corrected by other matters of description in the certificate and grant, by any natural call or description which may identify a corner, or render it certain; as "two chesnut oaks, corner to Robert Young's survey of one hundred thousand acres, &c. the first, second, or third corner, &c." Such correction of course and distance cannot be made by a secret, undisclosed intention that the two chesnuts he called for should be those 'at one of Young's corners.

5. The course and distances called for in the grant will locate the grant on the waters and water courses, precisely as stated in the grant. This appears by the surveyor's diagram, which with the grant is record evidence of this fact. Let the courses and distances called for be varied according to Wilson's secret intention, the case will be very different.

The grant calls to be on part of Clover run, on Cheat river, and to include the waters of Pheasant run. These descriptions suit either mode of locating the grant: but the grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback's run and the cherry tree fork of Leading creek. Whereas, as he would locate his grant, it will include not only part of the waters of Hornback's run and the Cherry Tree fork of Leading creek, but all these two streams and their waters, and even all Leading creek itself, of which they are small branches; and his survey will be, not on the waters of Tygart valley river, but on the river itself, crossing it four times.

Mr Chief Justice MARSHALL delivered the opinion of the

court.

The judgment in this cause was rendered by the court of the United States, for the western district of Virginia, in an ejectment brought by the defendants in error, to recover

[Chinoweth et al. vs. Lessee of Haskell et al.]

fifty thousand acres of land, a part of which was in the occupation of the defendants in the court below. The defendants in that court disclaimed aš to the part of the land for which judgment was entered against the casual ejector, and went to trial as to the residue. The original plaintiffs having the eldest title, the case depended entirely on the question whether their grant covered the land in dispute. If it be surveyed according to the courses and distances called for, it will entirely exclude that land. The plaintiffs, however, claim to survey it in such manner as to comprehend the tenements in possession of the defendants.

A survey was made, and the diagram of the surveyor, with his report, exhibits the respective claims of the parties. The diagram A. B. C. D. E. F. A. represents the land claimed by the plaintiffs. A. B. C. D. G. H. A. represents the land, which, as the defendants contend, the grant to the plaintiffs ought to cover. A. B. C. and D. form the northern side of the tract, and are admitted by both parties to be correctly laid down. The question is whether the next line should run from D. to E. as contended by the plaintiffs, or from D. to G. as contended by the defendants. The line from D. to G. corresponds in course and distance with the call of the patent; it is S. nine W. four thousand six hundred poles. The line from D. to E. is S. twenty-eight degrees nine minutes west, four thousand eight hundred and fifty-four poles, varying nineteen degrees nine minutes from the course, and two hundred and fifty-four poles from the distance. This variance places the corner at E. about five miles west from that at G., and produces a correspondent change in the two remaining lines which form the southern and western sides of the land..

At the trial, the defendants demurred to the plaintiffs' testimony, and the jury found a verdict for the plaintiffs, subject to the opinion of the court on the demurrer. The court overruled the demurrer and gave judgment for the plaintiffs.

The demurrer states that at the trial the plaintiff gave in evidence the plat and report made by the surveyor, which show that the lines from A. to D. which bind the land on north, conform to the patent. That the other three lines D.

[Chinoweth et al. vs. Lessee of Haskell et al.]

E., E. F. and F. A. which inclose the land on the west, south, and east, are not marked, nor is any corner found at F. At E. two chesnut oaks were found where two chesnut oaks were called for in the patent. They are marked as a corner previously made for Robert Young. The lines D. G., G. H. and H. A. laid down by the directions of the defendants conformably to the patent, are not marked.

The plaintiffs also gave in evidence the patent under which they claimed, dated the 9th of July 1796, the conveyance of the patentees to them, and an official copy of the plat and certificate of survey on which the grant was founded. The land is described as lying on the waters of Tygart valley river, Cheat river, to include the waters of Pheasant run and a part of Clover run, part of the waters of Benjamin Hornback's and Cherry Tree fork of Leading creek. They also gave in evidence the grants under which the defendants claimed, with the entries and surveys on which they were founded, which were younger than that under which the plaintiffs claimed. They also read the deposition of William Wilson. He deposes that he made the survey of fifty thousand acres in 1795. He proves that he began at A. and ran the line on the north side of the tract to D. He then protracted a line intended to strike two chesnut oaks near the head of James's run by the side of a path leading from Tygart valley to the Louth of Seneca, which was a corner he had previously marked to a survey of one hundred thousand acres he had made for Robert Young. From those two chesnut oaks he ran to Tygart valley river. Not having a sufficient distance, and finding that the line would cross the river several times, he extended the course and called for a white oak, because he knew there were white oaks there about. He does not know whither the course and distance would have carried him to the east or west side of the river. He then protracted a line to the beginning. On being cross examined he said he made the line from D. to E. in his office, and laid it down, intending to hit the two chesnut oaks near James's run. He went to the two chesnut oaks and ran to the river (not quite half the line E. F.) where he stopped, and continued the line E. F. the proper distance, and also protracted the closing line F. A. He had no axe