V YOUNG. MAR. IN. Co. verdict, they sent a written paper to the judges, requesting to be instructed by the court, whether the above answer of David Young would admit of any other reasonable or legal construction, than that the 13th of December, 1800, was the first information given by him to the plaintiff below of the storm of the 2d of November. But the court refused to give any opinion to the jury upon the construction of the answer of David Young, unless with the assent of both parties; and the counsel for the plaintiffs in error refused to assent, and took a bill of exceptions to the refusal of the court to instruct the jury, without the consent of both parties. The jury found a verdict for the defendant in error; and before judgment, the plaintiffs in error moved the court for a new trial, upon the ground that the verdict was contrary to evidence. The court having refused to grant a new trial, the counsel for the plaintiffs in error tendered a bill of exceptions, containing what they supposed to be a correct statement of all the evidence offered on the trial, consisting of depositions, and other papers, together with viva voce testimony, the substance of which they stated they had taken from their notes. But the court refused to seal the bill of exceptions, unless the counsel for the plaintiff below would agree to a statement of the evidence, the court not being satisfied that the bill of exceptions stated all the evidence offered at the trial. To this refusal of the court to seal the bill of exceptions, the counsel for the plaintiffs in error tendered another bill of exceptions, which the judges sealed. C. Lee and E. J. Lee, for the plaintiffs in error, contended, 1. That the court was bound to give an opinion to the jury, upon the meaning of the witness's answer, and ought to have instructed the jury V. YOUNG. that the answer did not necessarily import that MAR. IN.CO. the 13th of December, 1800, was the first time that the witness mentioned to the defendant in error the storm of the, 2d of November; and that if he had given him the information before that day, his answer was so vague that he could not have been convicted of perjury. 2. That the court below ought to have signed the bill of exceptions to their refusal to grant a new trial. 3. That the court ought to have granted a new trial, because the verdict was contrary to evidence; and, 4. That this court, if they believe the evidence is substantially stated in the rejected bill of exceptions, ought to order a new trial. 2 Wash. To support these points, they cited Co. Litt. 226. b. 295. b. 155. b. Harg. note. 1 Wash. 389. 275. 9 Co. 12. b. 13. a. 3 Cranch, 298. 3 Ν. Υ. Bac. Abr. Munf. Rep. 386. 1 Wash. 79. 1 2 Cranch, 126. Laws U. S. vol. 1. 3 Bl. Com. 375. Swann, contra. A deposition is merely parol testimony, and the jury is the proper tribunal to judge of the meaning of a witnes If the witness was not sufficiently explicit, the counsel for the plaintiffs in error, who were present at the examination, ought to have made the witness explain himself more fully. 2 Term Rep. 760. Lloyd v. Muund. The refusal to grant a new trial, upon the ground that the verdict was against evidence, is not error. A motion for a new trial on that ground is in the MAR. IN. Co. nature of a writ of error coram vobis for error in V. YOUNG. fact. C. Lee and E. J. Lee, in reply. In the case of Lloyd v. Maund, the court was not called upon to say what was the construction of the letter. This court is a substitute for the court of appeals of Virginia, as to the cases from Alexandria, and ought to decide as that court would decide in Virginia. By the practice of that state, it is error to refuse a new trial, if a new trial ought to have been granted. The refusal is a part of the proceedings, and appears upon the record. In the case of Clarke v. Russel, 3 Dal. 415. the court undertook to construe and expound a letter. LIVINGSTON, J. Can this court reverse for error in fact? Suppose we should be of opinion that the court below ought to have granted a new trial, is it not an error in fact? I have another doubt. Whether it be the ground of a writ of error, if a judge gives or refuses to give an opinion on matter of fact. A written contract, a bond, note, &c. whatever is the act of the party, is a subject for the construction of the court; but this is not the act of the party, but a mere deposition. If the court can give the construction of depositions, they may as well try the whole cause when all the evidence consists of depositions. February 28. CUSHING, J. delivered the opinion of the court as follows: This court is of opinion that the inferior court V YOUNG. was not bound to give a construction of the an- MAR. IN. Co. swer of Captain David Young to the second interrogatory of the plaintiff below, as requested by the jury; and that it would be improper in this court to determine whether the inferior court ought or ought not to have granted the motion of the defendants below for a new trial, upon the ground that the verdict was contrary to evidence. The judgment below is to be affirmed with costs. BODLEY AND OTHERS v. TAYLOR. ERROR to the district court of the United In Kentucky, States, for the district of Kentucky, in a suit in chan- it is a good cery. ground of equitable jurisdic tion, that the defendant his land to which Thomas Bodley, James Hughes, Robert Poague obtained a priand Robert Campbell, citizens of Kentucky, brought or patent for their bill in chancery against John Taylor, a citizen the complainof Virginia, in the state court for the district of ant had the Washington, from whence it was afterwards, by under the staright consent, removed into the federal court for the dis- tate respecting trict of Kentucky. better lands; and in exercising that jurisdiction the court will decide Entries of land reasonable cer The bill states that on the 17th of October, 1783, Henry Crutcher and John Tibbs made the follow- in conformity ing entry with, the county surveyor, viz. "Henry with the settled principles Crutcher and John iibbs enters ten thousand acres of a court of of land on a treasury warrant No. 18,747. as tenants chancery. in common; beginning at a large black ash and in Kentucky, small buckeye marked thus (I. T.) on the side of a must have that buffalo-road leading from the lower blue licks a tainty which north-east course, and about seven miles north-east would enable by east from the said blue licks, a corner of an en- a subsequent locator, by try of twenty thousand acres made in the name the exercise of John Tibbs, John Clarke, John Sharpe, David of a due degree of judgment Blanchard and Alexander M'Clain, running thence and diligence, with the said Tibbs & Co.'s line duc east sixteen to locate his own lands on BUDLEY v. TAYLOR. residuum. hundred poles, thence south one thousand poles, thence west sixteen hundred poles, thence north one thousand poles to the beginning for quantity." That the adjacent the same having been surveyed, Crutcher assigned If the entry be his half to Robert Rutherford, to whom and Wilplaced on 3 loughby Tibbs, (the heir of John Tibbs,) a patent road at a cer tain afterwards granted. Tibbs sold his right to from a given Peyton, who sold a moiety thereof to Magill. Rupoint by which therford, Peyton and Magill, sold and conveyed the road passes, the dis- the whole for a valuable, consideration to the plaintance is to be tiffs, by deed dated February 15, 1799. distance computed by the meanders of the road and not by a and pre-emp on the east side lowed for the settlement was That the defendant Taylor having, on the 22d of straight line. May, 1780, made the following entry with the If the entry be county surveyor, viz. "John Taylor enters three of a settlement thousand acres of land upon a treasury warrant adtion to a tract joining John Walden, on the north side of Johnson's of land lying fork of licking, on the east and south-east sides, of a road, the running up and down said creek, and north for 400 acres al quantity, to include an improvement made by Jacob Drennon and Simon Butler," has caused the same right must be to be surveyed expressly contrary to location, and so surveyed entirely on the as to interfere with your orator's claim aforesaid; cast side of the and having obtained a patent older than that obtained by the said Rutherford and Tibbs, notwithstanding he knows his claim is surveyed contrary to location, the settlement and although requested, he refuses to convey to the right is sufi plaintiffs. The prayer of the bill was, that the deciently certain, fendant should convey to the plaintiffs so much of the land included in the defendant's patent as interthepre-emption right is too fered with the plaintiffs' patent; and for general relief. rad, and in the form of a square. but the call for vague and must not ineluded in entry, will be The defendant by his answer denied the jurisdictent for land tion of the court, as a court of equity, because the plaintiffs stated in their bill no equitable ground of his entry, but covered by the relief. He avers his ignorance of the plaintiffs' ticomplainants' tle, and that he did not know until within a few days decreed to con- then past, the mode in which his own location or vey it to the survey was made. That he had employed one Amcomplainants, brose Walden to cause them to be located. He making his survey. He avers that he was a bona fide purchaser for a full and but the com plainants will denies all fraud in not bo required to con vey to the de |