1817. Johnson V. Pannel's heirs. already noticed. It is difficult to suppose that they are viewed as equally important by the person making the entry, or by a subsequent locator. If the person making the entry designed to select for the beginning a particular tree, in exclusion of all others, it is in a high degree improbable that he should omit to mark it. If he made the entry from memory, then the place only, and not the particular tree, would be the object to which his mind would attach importance. So with the subsequent locator. The distance would bring him to the place, or sufficiently near to it for every beneficial purpose, and whether a sugar tree and hiccory stood at the end of twelve miles as measured by his chain, or within thirty, forty, or fifty yards, would not essentially vary his views with respect to adjacent lands. He could not doubt, to use the expression of the court in the case of Greenup v. Lyne's heirs, "as to the general body and position of the land" described in the entry. The opinion that the call for an unmarked tree of a kind which is common in the neighbourhood of a place sufficiently described by other parts of the entry to be fixed with certainty, may be considered as an immaterial call, is supported by the decision of the court in the case which has been last mentioned. Although in that case the judge shows that a tree might be found to satisfy the call at the place fixed as the beginning, yet it is apparent that different places within a few yards of each other would answer equally well for the beginning, and that different trees might be selected for that purpose. And the judge, after stating that this call might either be considered as satisfied, or in itself immaterial, proceeds to show that he thought it immaterial. "Regarding," he proceeds to say, "the call for a beech tree as immaterial, we come to consider," &c. Upon the authority of the case of Greenup v. Lyne's heirs, then, and upon a view of the whole of this entry, it would seem that the call for the sugar tree and hiccory may be declared immaterial, and the location be sustained on its other calls. 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 river, 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 centre of the 1817. Johnson v. Pannel's heirs. 1817. Johnson v. Pannel's heirs. land would be placed opposite to the centre of the town, and a square would be formed on a base line running up and down the river, to include the quantity. The entry could not otherwise be sustained. The inferior court laid off this entry in that manner; and the appellate court declared that it would be the proper manner, were there not other words in it which controlled this general description 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 centre of which is opposite to the centre of the town. The one calls for a beginning at a sugar tree and hiccory, 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 centre 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? From the language of Pannel's entry, every man would expect the survey to begin at the place called for, twelve miles below 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. 1817. Patterson V. The United (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 which is in issue; and, though the court may give form to a general finding, so as to make it harmonize with the issue, yet, if it appears that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict. In an action of debt, upon a bond to the United States, with condition that certain merchandise imported, and re-shipped for exportation, should not be re-landed within the U. S., and that the certificate and other proofs required by law, of the delivery of the same, without the limits of the U. S., 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 re-landed, &c., and that the certificates and other proofs required by law, the delivery of the same at Archangel, in Russia, were produced, &c. 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., &c., and they find there is really and of 1817. Patterson V. The United Feb. 20th. March 13th. justly due upon the said writing obligatory the sum of 23,989 dollars and 58 cents." Held that the verdict was so defective no judgment could be rendered upon it. A circuit court has no authority to issue a certiorari, or other compulsory process, to the district court, for the removal of a cause from that jurisdiction, before a final judgment or decree is pronounced. 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 defence, 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 original suit in the circuit court. THIS cause was argued by Mr. D. B. Ogden and Mr. Harper, for the plaintiff in error, and by the Attorney-General and Mr. 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. Mr. Justice WASHINGTON, 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 dollars, 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 re |