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POLLARD & PICKETT V. DWIGHT, 8 U. S. 421 (1808)

U.S. Supreme Court

Pollard & Pickett v. Dwight, 8 U.S. 4 Cranch 421 421 (1808)

Pollard & Pickett v. Dwight

8 U.S. (4 Cranch) 421


The appearance of the defendants to a foreign attachment in a circuit court of the United States waives all objection to the nonservice of a process.

The district judge may alone hold a circuit court, although there be no judge of the Supreme Court allotted to that circuit.

An action may be supported on a covenant of seizin, although the plaintiff has never been evicted, and the declaration need not aver an eviction.

Under the foreign attachment law of Connecticut, an absent person who is liable for damages for breach of his covenant is an absent debtor.

The official certificate of survey returned by a legal sworn surveyor in Virginia cannot be invalidated by a particular fact tending to show an impossibility that the survey could have been made in the time intervening between the date of the entry and the date of the certificate of survey.

On the trial of an action in Connecticut for breach of a covenant of seizin of lands in Virginia, the question whether a patent from the State of Virginia for the lands be voidable is not examinable. Parol testimony is not admissible in an action on the covenant of seizin to prove prior claims upon the land.

Dwight and others brought a foreign attachment against Pollard and Pickett in the County Court of Hartford, and declared in an action of covenant upon a deed of bargain and sale in fee simple of certain lands in the County of Wythe and Commonwealth of Virginia by which the defendants below covenanted that they were

"lawfully seized of the lands and premises, with their appurtenances, and had good right and lawful authority to sell and convey the same in manner and form aforesaid,"

and the breach assigned was

"that they were not nor were any or either of them lawfully seized and possessed of any estate whatever in the said land and premises nor in any part thereof, nor had the said Pollard and Pickett, or either of them, good right and lawful authority to sell and convey the said land and premises as aforesaid."

The defendants appeared and removed the cause to the Circuit Court of the United States for the District of Connecticut, and there pleaded to the jurisdiction of the court, and prayed

"judgment whether the honorable Pierpont Edwards, District Judge of the District of Connecticut holding said court, there being no justice of the Supreme Court of the United States present in court, will have cognizance of the said cause, because they say that, by the law of the United States, the Circuit Court of the Second Circuit in the District of Connecticut shall consist of the Justice of the Supreme Court residing in the third circuit and the District Judge of the District of Connecticut, and that when the said law was enacted, viz., on 3 March, 1803, the Honorable William Paterson was the only Justice of the Supreme Court residing in the said Third Circuit, and that he died on or about 10 September last past,

Page 8 U. S. 422

and that there is not now, nor hath there been, since the death of the said Paterson, any Justice of the Supreme Court residing in the said third circuit; and there hath not been by the Supreme Court of the United States, or by the President of the United States, any allotment of a Chief Justice or an Associate Justice of the Supreme Court of the United States to the said second circuit, and this they are ready to verify,"

&c., which plea, upon general demurrer, was overruled and a respondeas ouster awarded, whereupon the defendants pleaded that they were, at the date of the deed,

"well seized and possessed of the said land, and had good right to bargain and sell the same in manner as is alleged in the said deed, and so they have kept and performed their said covenants, and of this put themselves on the country . . . and the plaintiffs likewise."

The verdict was for the plaintiffs, and damages assessed to $27,497. The defendants moved in arrest of judgment because it appears by the declaration that the said deed was executed, and the lands lie in the State of Virginia, and because the declaration is insufficient and will not support any judgment; but the motion was overruled and judgment rendered on the verdict.

On the trial, a bill of exceptions was taken which stated that the defendants claimed to be seized under a patent to them from the Governor of Virginia dated March 20, 1795, and grounded on a survey in favor of David Patterson by virtue of an entry, dated September 1, 1794, on sundry Treasury warrants to the amount of 150,000 acres, and completed on 8 September, 1794, which survey had been assigned to the defendant, Pollard; whereupon the plaintiffs offered to read in evidence copies of two surveys made for one Wilson Carey Nicholas, by virtue of two entries made on the same 1 September, 1794, in the office of the same surveyor, one to the amount of 500,000 acres and the other to the amount of 480,000 acres, the greater part of which laid in the County of Wythe, and bounding on the land surveyed for Patterson, and that the said survey for 500,000 acres purported to be completed on 9 September, 1794,

Page 8 U. S. 423

and that for 480,000 on the 10th of the same month, and that the extent of all the lines of the said surveys was more than 320 miles, and offered to prove by Erastus Granger that the nearest part of the said lands to the office of the surveyor of Wythe County was distant therefrom two days' journey and that a surveyor could not, in that county, survey a line longer than seven miles in a day, and that he (Erastus Granger) had surveyed the land surveyed for Patterson and found marked trees only for about three or four miles from the starting point of the survey, and two or three only of the first corners mentioned in the survey, and that the streams ran in opposite directions to those laid down in the plot, which testimony of the said Granger was offered to prove that Patterson's survey was fraudulent, and not made conformably to the laws of Virginia, and the plaintiffs further offered to prove by the testimony of the said Granger that there were prior claims upon the land in question to the amount of upwards of 90,000 acres. It was admitted that Granger was not a sworn surveyor. The defendants objected to the above evidence, but the court overruled the objection and suffered it to go to the jury.

The defendants sued out their writ of error to this Court, and the errors assigned were,

1. That the plea to the jurisdiction ought to have been allowed.

2. That the evidence stated in the bill of exceptions ought not to have been admitted.

3. That the declaration is insufficient.

4. That the title of the land could not be tried in Connecticut.

5. That the circuit court had not jurisdiction, the plaintiffs being citizens of Massachusetts and Connecticut and the defendants citizens of Virginia, not found in the District of Connecticut.

Page 8 U. S. 424

6. That the judgment ought to have been rendered for the defendants.

Page 8 U. S. 428

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