Jones v. Bache

13 F. Cas. 939, 8 Wash. C. C. 199

Opinion

BY THE COURT.

The witnesses profess to speak from their own knowledge of these lands, in their capacity of surveyors, as well as officially as to surveys recorded in their office; and they annex a connected map of certain surveys so recorded, to show the situation of the land; and they swear that the land contained in this map, covers the land in question. This is certainly good evidence, without producing the separate surveys, which could of themselves afford no information. Their belief as to patents having issued, is not evidence; as the patents should be produced.

The plaintiff having closed his evidence, the defendant moved for a nonsuit, the matter in issue not being proved.

WASHINGTON, Circuit Justice.

The material matter for the plaintiff to have averred in his replication, was, that a good and lawful title, clear of all difficulties and encumbrances, had not been made to him— which he could have supported by the evidence. But the replication unnecessarily alleges, that the legal estate was in H. B., and that patents had issued to him: which aver-ments, the defendant, by his rejoinder, has selected to form the subject of the issue; and issue is accordingly taken on them. But the evidence is against the plaintiff; for there is no proof that patents have ever issued to H. B. or any other; and an entry and survey do not pass the legal estate out of the commonwealth, according to the laws of Virginia. The plaintiff suffered a non-suit.