In an ejectment, a witness was called to prove that a peon who
was dead had, at a former trial between the plaintiff and some the
defendants to recover the land in controversy, sworn that an
anciently marked corner tree was found by him at a particular point
of a different kind of timber from that called for in a patent to
one Young. No part of the survey of Young was involved in the
controversy in this suit, and with several other surveys it was
only laid down by the surveyor as by showing certain connections,
it might conduce to identify the land claimed by the plaintiffs. As
the evidence was not given between the same parties, this testimony
could only be received as hearsay, and was not admissible.
That boundaries may be proved by hearsay testimony is a rule
well settled and the necessity or propriety of which is not now
questioned. Some difference of opinion may exist as to the
application of this rule, but there is none as to its legal
force.
Landmarks are frequently found of perishable materials which
pass away with the generation in which they are made. By the
improvement of the country and from other causes, they are often
destroyed. It is therefore important in many cases that hearsay or
reputation should be received to establish ancient boundaries. But
such testimony must be pertinent and material to the issue between
the parties. If it have no relation to the subject or if it refer
to a fact which is immaterial to the point of inquiry, it ought not
to be admitted.
In an ejectment for land in the State of Virginia, the District
Court for the Western District of Virginia instructed the jury
"That the grant to the plaintiffs which was given in evidence
was a complete appropriation of the land therein described, and
vested in the patentee the title, and that any defects in the
preliminary steps by which it was acquired were cured by the
grant."
By the court:
"There can be no doubt of the correctness of this instruction.
This Court has repeatedly decided that no facts behind the patent
can be investigated. A court of law has concurrent jurisdiction
with a court of equity in matters of fraud, but the defect of an
entry or survey cannot be taken advantage of at law. The patent
appropriates the land and gives the legal title to the patentee.
"
Titles acquired under sales for taxes depend upon different
principles: where an individual claims land under a tax sale, he
must show that the substantial requisites of the law have been
observed. But this is never necessary where the claim rests on a
patent from the commonwealth. The preliminary steps may be
investigated in chancery when an elder equitable right is asserted,
but this cannot be done at law.
If the grant appropriates the land, it is only necessary for the
person who claims under it to identify the land called for. Whether
the entry was made in legal form or the survey was executed
agreeably to the calls of the entry are not matters which can be
examined at law. When, from the evidence, the existence of a
certain fact may be doubtful, either from want of certainty in
the
Page 31 U. S. 329
proof or by reason of conflicting evidence, a court may be
called upon to give instructions in reference to supposable facts.
But this a court is never bound to do where the facts are clear and
uncontradicted.
That certain calls in a patent may be explained, or controlled
by other calls was settled by this Court in the case of
Stringer's Lessee v.
Young, 3 Pet. 320. If the point had not been so
adjudged, it would he too clear on general principles to admit of
serious doubt.
The entire description of the patent must be taken and the
identity of the land ascertained by a reasonable construction of
the language used. If there be a repugnant call which by the other
calls of the patent clearly appears to have been made through
mistake, that does not make void the patent. But if the land
granted be so inaccurately described as to render its identity
wholly uncertain, it is admitted that the grant is void.
The meaning of the parties to written instruments must be
ascertained by the tenor of the writing, and not by looking at a
part of it, and if a latent ambiguity arises from the language
used, it may be explained by parol.
An entry of land in a 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.
This was an ejectment brought in the District Court of the
United States for the Western District of Virginia by the
defendants in error against the plaintiffs in error for the
recovery of eight thousand acres of land in the now County of
Lewis, within the said district. The premises in question are
parcel of a large connection of surveys made together for Reed and
Ford for Thomas Laidley and John Young and others -- some in the
name of one and some in the names of others of the owners. The
whole connection of surveys is represented by the connected diagram
made out and reported by the surveyor of Harrison County pursuant
to an order made in the cause and appearing in the record. On that
diagram the premises in question are particularly represented.
The plaintiffs below counted on a number of separate demises
from the defendants in error; all of which were stated on the
record as having been made by citizens of Pennsylvania, on 1
January, 1820.
On the trial, the defendants below tendered the following bill
of exceptions:
"Upon the trial of this cause, a draft and report returned by a
surveyor in obedience to an order of survey made in this cause, was
given in evidence to the jury, which draft and
Page 31 U. S. 330
report are in the words following,
viz., [setting out
the same]. The plaintiff, in order to show the title of the lessors
to the land in controversy, represented by the red lines on said
draft, gave in evidence the patent under which they claim, in these
words,
viz., [setting out the same]. This patent is dated
9 May, 1786. It was issued to Messrs 'Reed and Ford,' and describes
the lands thus,
i.e.,"
"a certain tract or parcel of land containing eight thousand
acres, by survey bearing date 23 December, 1784, lying and being in
the County of Monongalia, near a large branch of French Creek
adjoining lands of George Jackson on the south side and bounded as
follows, to-wit: beginning at a maple, and running thence S. 10 E.
one thousand poles to a poplar; S. 80 W. one thousand two hundred
and eighty poles to a W. oak; No. 10 E. one thousand poles to two
white oaks; N. 80 S. one thousand two hundred and eighty poles to
the beginning."
The bill of exceptions then states that the plaintiffs, for the
purpose of showing the identity of the land in controversy with the
land granted by said patent, gave in evidence a copy of the plat
and certificate of survey on which the said patent is founded, and
the plats and certificates of survey of the various other tracts
represented on said draft. After the plat and certificates had been
given in evidence, the copies of the entries on which the said
surveys were founded, were also given in evidence.
It appeared from the parol evidence introduced in order to
identify the land in controversy that the same, at the date of the
patent under which the lessors claim, and at the date of the said
plat and certificate of survey on which the said patent is founded,
was situate in the County of Harrison, and not in the County of
Monongalia, as stated in the patent and certificate of survey, but
that the said land, at the date of the entry on which the survey
was founded, was in the County of Monongalia, and became part of
the County of Harrison by virtue of the act of assembly
establishing the County of Harrison. The act of assembly is dated 8
May, 1784, and took effect 20 July of the same year.
The bill of exceptions further states that evidence was relied
on on the part of the defendants for the purpose of proving that
the various marked lines represented by the said draft and report
of the surveyor and claimed by the plaintiff to be lines
Page 31 U. S. 331
of the land in controversy and of various other tracts
designated on the said draft were not actually run or marked as
lines of the land in controversy, and of the other tracts
aforesaid, but had been run and marked by Henry Fink, a deputy
surveyor of Monongalia, but who then resided in the County of
Harrison, with a view of laying off the greater part of the country
represented on said draft into surveys of about one thousand acres
each; that he was employed and paid for that purpose by the persons
for whom the said plats and certificates of survey were afterwards
made; that after said lines had been so marked and run, the said
plats and certificates were made out by protraction, not by the
said Henry Fink, but by some other person or persons not authorized
by law; that said plats and certificates of survey were never
recorded in the surveyor's office of Monongalia County nor there
filed, but were surreptitiously returned to the register's office
and patents obtained thereon. It was contended on the part of the
defendants that the marked lines represented on said draft as lines
of the lands in controversy were not the lines thereof, and that
the evidence in the cause did not justify the jury in regarding
them as such in preference to other marked lines represented on
said draft. Evidence was given on the part of the plaintiffs that
the marked lines aforesaid were actually run and marked by said
Fink as lines of the said eight thousand acres and of the various
other tracts represented upon said draft, and that plats and
certificates of survey were made out by him in conformity with the
lines so run and marked and were by him delivered to the agent of
the patentees, who gave them to the principal surveyor to be
recorded, who afterwards delivered the same to the patentees, who
returned them to the land office, on which plats and certificates
so returned patents issued, and copies of which are before recited.
It was further contended on the part of the defendants that the
land in controversy was not embraced within the calls of the patent
under which the lessors claim; that the natural objects, lines, and
adjacent lands called for in said patent were not those represented
on said draft, in designating thereupon the land in controversy,
and that the marked lines represented on said draft as the lines,
of the land in controversy, were, in fact, the lines, not of the
plat and certificate of survey on which the plaintiffs' patent
issued, but of other plats and
Page 31 U. S. 332
certificates of survey, and that there are no calls in said
patent justifying the locating said patent on the lands in
controversy, as contended for by the plaintiffs. For the purpose of
identifying the said land in controversy with that granted by the
said patent, parol and other evidence was introduced by the
plaintiffs, in order to establish several marked trees as corners
of other tracts represented on said draft -- the boundaries of
which tracts, it was contended, tended to establish the identity of
the lands in controversy, with that granted by said patent. For the
purpose of showing that one of said marked trees was not a corner
of one of said tracts; that is to say, was not the corner on the
said draft represented by the letter A, as a corner of John Young's
four thousand acres; the counsel of the defendants offered to
introduce a witness to prove, that on the trial of a former action
of ejectment, brought by the present lessors of the plaintiff
against some of the present defendants, to recover the lands now in
controversy, a witness, who is since dead, swore that an ancient
marked corner tree was found by him at said point A, of a different
kind of timber form that called for in Young's patent, but the
evidence aforesaid was rejected by the court as inadmissible.
After the evidence had been closed and the cause had been argued
before the jury, the plaintiffs' counsel moved the court to give
the following instructions to the jury, to-wit, that the grant
aforesaid was a complete appropriation of the land therein
described, and vested in the patentee the title; and that any
defects in the preliminary steps by which it was acquired, were
cured by the emanation of the said patent. The said counsel further
moved the court to instruct the jury that the said grant is a title
from its date, and is conclusive against all the world, except
those deriving title under a previous grant; and further, that it
does not affect the validity of the patent, if it should appear
that the entry on which the plaintiffs' survey was made, contained
other or different lands from that actually surveyed.
After the above instructions had been moved for by the
plaintiffs' counsel, the counsel for the defendants moved the court
to give to the jury the following instructions, to-wit:
"1. The name of the county being mentioned in the plaintiffs'
patent, as that in which the lands thereby granted were
Page 31 U. S. 333
situated, the plaintiff is not at liberty to prove by parol that
the land was, in fact, in a different county."
"2. As the patent states the lands to lie in the County of
Monongalia, the patentees and those claiming title under them, can
only recover lands in that county, and cannot, by force of the
other terms of description contained in the patent, recover lands
lying in the County of Harrison at the date of the patent."
"3. It appearing from the plat and certificate of survey on
which the patent is founded, that the survey thereby evidenced was
made in the County of Monongalia, and it appearing, from the
evidence introduced on the part of the plaintiffs to identify the
said land, that it was situated, at the time of the survey, in the
County of Harrison; the patent is void because the survey was made
without lawful authority."
"4. If various marked lines are found corresponding with the
same calls in the patent, the mere coincidence of anyone of those
marked lines with the calls of the patent, does not establish that
line as one of the lines called for in the patent."
"5. If there are no calls in the patent, justifying the location
of the land granted, as contended for by the plaintiffs, they
cannot succeed in establishing their claim by relying upon
extrinsic evidence."
"6. Proof that the land claimed in this action was surveyed for
the patentees, by evidence contradicting the calls of the patent,
does not establish the right of the patentees and of those claiming
under them to the lands claimed as aforesaid."
"7. An entry in a county which is afterwards divided, does not,
after the division, authorize a survey in the original county, if
the land falls into the new county."
The parties respectively objected to the instructions moved for.
The instructions moved for by the plaintiffs, were given by the
court. All those required by the defendants were refused, except
the first, which was modified by the court and delivered to the
jury in the following terms:
"If a land warrant be entered in the office of the surveyor of a
particular county, and before the same be surveyed, the territory
in which the land located lies, shall be erected into a new county,
and the survey and grant afterwards affected, describe the lands to
be situated in the former county, the grant is not void and the
plaintiffs may show by parol evidence extrinsic of the grant,
Page 31 U. S. 334
and not inconsistent with its other descriptive calls, that the
land lies within the new county."
The exceptions were taken to the rejection of the testimony
offered respecting the corner at A, and to the instructions given
as moved for by the plaintiffs, and the rejection of those moved
for the defendants.
The jury found a verdict for the plaintiffs, for the lands in
the declaration mentioned and described in the plat and report of
Thomas Haymond, made in pursuance of an order of court made in the
cause. On this verdict, judgment was rendered for the plaintiffs
below, defendants in error, and this writ of error is brought to
reverse that judgment.
Page 31 U. S. 340
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action of ejectment was brought by McCall and others against
Boardman and others, in the district Court of the United States for
the Western District of Virginia, to recover eight thousand acres
of land. On the trial, certain exceptions were taken to points
adjudged by the court in behalf of the plaintiffs, and against the
defendants; and these points are now brought before this Court by
writ of error.
The first exception taken by the plaintiffs in error is found in
the following statement in the bill of exceptions.
"For the purpose of showing that one of said marked trees was
not a corner of one of said tracts, that is to say, was not the
corner represented on the said draft by the letter A as a corner of
John Young's four thousand acres, the defendants' counsel offered
to introduce a witness to prove that on the trial of a former
action of ejectment, brought by the present lessors of the
plaintiffs, against some of the defendants in the present action,
to recover the land now in controversy; a witness examined on that
trial, who is since dead, swore that an anciently marked corner
tree was found by him at said point A of a different kind of timber
from that called for in Young's patent,
Page 31 U. S. 341
but the evidence, as offered, was rejected by the court as
inadmissible."
No part of the survey of Young is involved in the present
controversy, and with several other surveys, it was only laid down
by the surveyor, as by showing certain connections, it might
conduce to identify the land claimed by the plaintiffs.
As the testimony of the witness referred to was not given
between the same parties, his statement, if admissible, could only
be received as hearsay.
That boundaries may be proved by hearsay testimony, is a rule
well settled, and the necessity or propriety of which is not now
questioned. Some difference of opinion may exist as to the
application of this rule, but there can be none as to its legal
force.
Landmarks are frequently formed of perishable materials, which
pass away with the generation in which they were made. By the
improvement of the country, and from other causes, they are often
destroyed. It is therefore important in many cases that hearsay or
reputation should be received to establish ancient boundaries, but
such testimony must be pertinent and material to the issue between
the parties. If it have no relation to the subject, or if it refer
to a fact which is immaterial to the point of inquiry, it ought not
to be admitted.
In the present case, the plaintiffs supposed that by exhibiting
the plat of Young's survey in connection with others, it might tend
in some degree to identify the land claimed by them, and the corner
designated on the plat by the letter A is one of the corners of
Young's survey. The official return of the surveyor, in which the
corner trees were specified and the lines with which the corner is
connected were laid down, being before the jury, was relied on by
the plaintiffs to establish this as the corner called for in
Young's survey.
The hearsay testimony was offered, not to contradict any fact
stated in the return of the surveyor, but to prove that on a
certain occasion, a person, in his lifetime, but deceased at the
trial, had said that he found an anciently marked corner tree at
the point A of a different kind of timber from that called for in
Young's patent. This individual did not say that he was acquainted
with the lines claimed as Young's survey, nor that this was his
corner.
Page 31 U. S. 342
If the fact as to this tree had been admitted, what effect could
it have had in the cause. It did not disprove a single fact relied
on to establish the corner. How near this tree stood to the trees
found by the surveyor does not appear. It may have been marked as
pointing to the corner, as is often done by surveyors, or it may
have been a corner to an adjoining or conflicting survey. The
existence of this marked tree may be accounted for in various ways,
and its existence is in no respect, so far as appears from the bill
of exceptions, incompatible with the facts proved by the
plaintiffs. How then can the fact be considered as material. It
sheds no light on the matter in controversy. Disconnected as the
mere fact of a marked tree not called for in Young's patent at the
point A seems to have been with the testimony in the cause; it is
not perceived how it could have tended to influence the verdict of
the jury. From the isolated fact, the jury could have drawn no
inferences against the facts proved by the plaintiffs. There was
therefore no error in the rejection of the evidence offered.
The court instructed the jury that the grant to the plaintiffs,
which was given in evidence, was a complete appropriation of the
land therein described and vested in the patentee the title; and
that any defects in the preliminary steps by which it was acquired,
were cured by the grant.
There can be no doubt of the correctness of this instruction.
This Court have repeatedly decided that at law, no facts behind the
patent can be investigated. A court of law has concurrent
jurisdiction with a court of equity in matters of fraud, but the
defects in an entry or survey cannot be taken advantage of at law.
The patent appropriates the land and gives the legal title to the
patentee. The district court said nothing more than this, and it
was justified in giving the instruction by the uniform decisions of
this Court.
Titles acquired under sales for taxes, depend upon different
principles, and these are the titles to which some of the
authorities cited in the argument refer. Where an individual claims
land under a tax sale, he must show that the substantial requisites
of the law have been observed; but this is never necessary when the
claim rests on a patent from the commonwealth. The preliminary
steps may be investigated in chancery, where
Page 31 U. S. 343
an elder equitable right is asserted, but this cannot be done at
law.
At the request of the plaintiffs, the court also instructed the
jury,
"that a grant is a title from its date, and conclusive against
all claimants whose rights are not derived under a previous grant
to that of the lessors of the plaintiffs, . . . and that it does
not affect the validity of said grant, if it appears that the
entry, on which the survey upon which the grant purports to have
been issued, contained other or different land from that actually
surveyed."
This instruction involves the same principle as the one which
precedes it. If the grant appropriate the land, it is only
necessary for the person who claims under it to identify the land
called for.
Whether the entry was made in legal form, or the survey was
executed agreeably to the calls of the entry, is not a matter which
can be examined at law. Had the defendants relied on the statute of
limitations, this instruction would have been erroneous, but no
such defense was set up by them.
The defendants' counsel requested the court to give the
following instructions:
"1. The name of the county being mentioned in the aforesaid
patent, as that in which the land thereby granted was situated, the
plaintiffs are not at liberty to prove by parol that the land lies
in a different county."
"2. As the said patent states the land granted to lie in the
County of Monongalia, the patentees, and those deriving title from
them, can only recover land in that county; and cannot, by force of
the other terms of description used in the patent, recover land in
the County of Harrison at the date of the patent."
"3. It appearing from said plat and certificate of survey, upon
which the patent is founded, that the survey was made in the County
of Monongalia, and it appearing from the evidence introduced on the
part of the plaintiffs to identify the land, that it did lie, at
the time of the survey, in the County of Harrison; the patent is
void, because the survey was made without authority."
"4. If various marked lines are found corresponding with the
same call of the patent, the mere coincidence of anyone
Page 31 U. S. 344
of those marked lines with the call of the patent, does not
establish that line, as a line called for in the patent."
The points raised by these instructions, having been
substantially decided by this Court in the case of
Stringer's
Lessee v. Young, 3 Pet. 320, they are abandoned by
the counsel for the plaintiffs in error. In that case, these
questions were fully investigated, and they need not be again
examined.
The following instructions were also requested of the court by
the defendants' counsel, and refused.
"5. If there are no calls in the patent justifying the location
of the land granted, as contended for by the plaintiffs, they
cannot succeed in establishing their claim, by relying on extrinsic
evidence."
This instruction was refused, and this Court think rightfully.
It asked the court below to presume against the facts in the case,
and to found an instruction upon the presumption thus raised. The
calls of the patent, and the official survey and report of the
surveyor were before the jury. By these it appears, that corner
trees were called for, and the land was stated to lie near a large
branch of French Creek, and to adjoin lands of George Jackson on
the south. The course and distance from corner to corner were also
laid down on the plat, and the trees called for as corners. Was the
district court, then, bound, in opposition to these facts, to
instruct the jury; hypothetically, that "if there were no calls in
the said patent, justifying the location of the land granted,",
&c. There were such calls in the patent, and it was in evidence
before the jury; any instruction, therefore, hypothecated on the
absence of such calls, could only tend to confuse or mislead the
jury, and the court committed no error in refusing it.
Where, from the evidence, the existence of certain facts may be
doubtful, either from want of certainty in the proof, or by reason
of conflicting evidence, a court may be called to give
instructions, in reference to a supposed state of facts. But this a
court is never bound to do, where the facts are clear and
uncontradicted.
"6. Proof that the land claimed in this action was surveyed for
the patentees, by evidence contradicting the calls of the patent,
does not establish the right of the patentees, and of those
claiming under them. "
Page 31 U. S. 345
This instruction, taken as an abstract proposition, may be true;
and yet the court did not err in refusing to give it. The
contradiction supposed was in the admission of proof that the land
covered by the patent is in the County of Harrison, when the patent
calls for it to lie in the County of Monongalia.
That certain calls in a patent may be explained or controlled by
other calls was settled, and in reference to this very point, by
this Court, in the case of
Stringer's Lessee v. Young,
before referred to. If the point had not been so adjudged, it would
be too clear, on general principles, to admit of serious doubt.
The entire description in the patent must be taken and the
identity of the land ascertained by a reasonable construction of
the language used. If there be a repugnant call, which by the other
calls in the patent clearly appears to have been made through
mistake, that does not make void the patent. But if the land
granted be so inaccurately described as to render its identity
wholly uncertain, it is admitted that the grant is void. This,
however, was not the case of the patent under consideration. Its
calls are specific, and, taking them all together, no doubt can
exist as to the land appropriated by it. The call for the county
may be explained, either by showing that it was made through
mistake, or that, under the circumstances which existed at the time
of the survey, it was not inconsistent with the other calls of the
patent.
This would not be going behind the patent to establish it, for
its calls fully identify the land granted; but to explain an
ambiguity or doubt which arises from a certain call in the patent.
This principle applies, under some circumstances, to the
construction of all written instruments. The meaning of the parties
must be ascertained by the tenor of the writing, and not by looking
at a part of it, and if a latent ambiguity arise from the language
used, it may be explained by parol.
"7. An entry in a county which is afterward divided, does not,
after the division, authorize a survey in the original county, if
the land falls in the new county."
If this instruction laid down the law correctly, yet it does not
show that the plaintiffs below had no legal right to recover. The
point raised by it is behind the patent, and that, as before
stated, cannot be investigated in an action of ejectment. To
Page 31 U. S. 346
entitle the plaintiffs to a recovery in the action of ejectment,
they had nothing to do but to identify the land called for in their
patent. This being done, it is not competent for the defendants, by
way of invalidating the plaintiffs' legal right, to show
irregularity in the entry or survey on which the patent was issued.
In the case of
Stringer's Lessee v. Young, the entry and
survey were made as stated in this instruction, and yet this Court
sustained the patent.
The court below, it seems, did instruct the jury that
"If a land warrant be entered in the office of the surveyor of a
particular county, and, before the same be surveyed, the territory
in which the land located lies shall be erected into a new county,
and the survey and grant afterwards effected describe the lands to
be situated in the former county, the grant is not void; and the
plaintiffs may show by parol evidence, extrinsic of the grant, and
not inconsistent with its other descriptive calls, that the land
lies within the new county."
This instruction is sustained substantially in the principles
laid down by this Court in the case above cited. There are indeed
very few points raised in this cause which were not decided in the
case of
Stringer's Lessee v. Young. The questions in that
cause arose under Young's patent, which was issued under precisely
the same circumstances as the one under which the plaintiffs
claim.
But if this point had not been settled in the case referred to,
all doubt would be removed by a reference to an act of the Virginia
legislature, passed in 1785, entitled an "act concerning the
location of certain warrants upon waste and unappropriated lands in
the Counties of Greenbriar, Harrison and Monongalia."
In this act it is provided by the third section
"That all surveys heretofore made in either of the aforesaid
counties, by virtue of the first location, shall be good and valid,
any act to the contrary notwithstanding."
In the bill of exceptions it is stated that evidence was relied
on by the defendants to
"prove that the various marked lines, represented by the draft
and report of the surveyor, and claimed by the plaintiffs to be
lines of the land in controversy, and of various other tracts
designated on the draft, were not actually run or marked as lines
of the land in controversy, and
Page 31 U. S. 347
of the other tracts laid down, but had been run and marked by
Henry Fink, a deputy surveyor of Monongalia, who then resided in
the County of Harrison, with the view of laying off the greater
part of the country represented on the plat into surveys of about
one thousand acres each, and that he was employed and paid for that
purpose by the persons for whom the said plats and certificates of
survey were afterwards made; that after the said lines had been so
marked and seen, the said plats and certificates were made out by
protraction; not by the said Henry Fink, but by some other person
or persons not authorized by law; that said plats and certificates
of survey were never recorded in the surveyor's office of
Monongalia County, nor there filed, but were surreptitiously
returned to the register's office and patents obtained
thereon."
It does not appear from the bill of exceptions, that any
evidence was offered by the defendants which was rejected by the
court, to sustain this allegation of fraud. Nor does it appear that
any specific instructions were asked of the court on any evidence
before the jury, conducing to prove the facts here alleged. The
statement can only be understood to refer to the course of argument
which the defendants' counsel in the court below deemed it their
duty to pursue, before the jury, and which forms no part of the
case now before the court. Other parts of the bill of exceptions
contain a statement of various grounds taken in the defense below,
but as no instructions to the jury were requested on the points
thus made, they form no ground for a revision of the proceedings by
a writ of error.
On a careful consideration of the points made in the bill of
exceptions, this Court is of opinion that there is no error in the
judgment of the court below, and that the judgment must therefore
be
Affirmed with costs.
