
    *M’Alexander v. Montgomery.
    December, 1832.
    Breach of Contract— Assumpsit — Allegations—Proof. —In assumpsit, plaintiff declares, that defendant contracted to locate a treasury warrant for plain-till' on waste and unappropriated lands, and to cause the same to be surveyed and patented, and alleges a breach, that defendant did not cause lands by him located on the warrant, to be surveyed and patented; but at the trial, plaintiff proves a contract whereby defendant did not undertake to cause the lands to be patented as well as located and surveyed: on demurrer to evidence, Hudd, the evidence does not prove the contract laid in the declaration, and plaintiff is not entitled to recover.
    Same —Limitations - — Case at Bar. — Contract to locate a treasury warrant on lands in Kentucky, is made in August 1782; and it appeared, the breach, if any, must have occurred before the erection of Kentucky into a separate state: Hupp, the act of limitations of Virginia began to run from the time of the breach, and was, therefore, a bar to an action on the contract brought in 1816.
    Assumpsit by M’Alexander against Montgomery, in the circuit court of Nelson. The action was brought in 1816, but (for some cause not explained in the record) remained pending and undecided there, for some ten or twelve years.
    The declaration alleged, in substance, that, on the —■— day of-in the year ——, M’Alexander delivered to Montgomery a treasury land warrant of Virginia, dated the 1st April 1782, for 4612 acres of land, and agreed with Montgomery, that if he would locate the warrant on waste and unappropriated lands, and cause the same to be surveyed and patented, he M’Alexander would give Montgomery one half of the lands so located, surveyed and patented, under the warrant, and pay him all the costs of surveying the same ; in consideration whereof, Montgomery assumed upon himself, and promised and agreed to and with M’Alexander, that he would well and truly locate the warrant on waste and unappropriated lands on the western waters in Virginia, so soon as such location could conveniently be made, and would cause the lands so located, to be surveyed and patented for M’Alexander, within reasonable and legal time after such locations — and that at the time of the contract, there were waste and unappropriated lands on the western waters in Virginia, of great value, subject to *be located, surveyed and patented, under the warrant, and which might have been located within a reasonble time, in pursuance of Montgomery’s promise and agreement, if he had used reasonable and due diligence in making such locations — Yet Montgomery had evaded, failed and refused to perform his promise and agreement, in this, 1. that he had altogether neglected and failed to locate part of the warrant; 2. that he had negligently located other part thereof on lands not then waste and unappropriated, so that the title thereof was wholly lost to M’Alexander; 3. that, having located other part of the warrant on waste and unappropriated lands of great value, he had neglected, failed and refused to have the lands so located, surve3red and patented, so that the title of the same was wholly lost to M’Alexander ; 4. that having located other part of the said warrant on other waste and unappropriated lands, he neglected, failed and refused, to have a part of these lands so by him located, surveyed and patented for M’Alexander, so that the title to this part of the lands so located was wholly lost to him; and 5. that Montgomery, having located other part of the warrant on waste and unappropriated lands, instead of having these lands surveyed and patented for M’Alexander, had them surveyed and patented for himself, and appropriated them to his own use. By reason whereof &c.
    Montgomery pleaded, 1. the general issue, and 2. the statute of limitations. To the second plea, M’ Alexander replied, that, at the time his cause of action accrued, Montgomery was out of Virginia, and in Kentucky, and so continued out of Virginia from the time when the action accrued, till the year 1815, within five years before the commencement of the action. Montgomery put in a rejoinder to this replication, — that he was, at the time the cause of action accrued, and long before had been, a resident of Kentucky, which was then a part of Virginia, and had alwa3's thenceforth continued to reside in Kentucky, where the contract in the declaration set forth, was, by agreement ^between the parties, to have been executed, until the year 1815, when he came to Virginia on a visit; and that there were, at the time the action accrued, and thenceforth until the year 1792, courts of justice in Kentucky established by authority of Virginia, and courts of justice there since 1792, established by authority of Kentucky and of the U. States, of competent jurisdiction, at all times, to hear and determine the claim alleged in the declaration. Then, there was a sur-rejoinder,— that, at the time when the action accrued, that part of the territory of Virginia in which Montgomery then resided, namely, the district of Kentuckjq had been erected into a separate state, and was nowise subject to the jurisdiction of Virginia, and so Montgomery was, at the time the action accrued, out of the state of Virginia, namely, in the state of Kentucky, and thenceforth continually kept himself in Kentucky, out of the limits and jurisdiction of Virginia, so that the action could not be brought against him, until the year 1815 within five years next before the action was commenced. And a general rebutter being.put into the sur-rejoinder, an issue was thereupon made up.
    Upon the first trial of the issues, the jury found a verdict for M’Alexander for 1584 dollars damages. But the court, on the motion of Montgomery’s counsel, set aside the verdict, on the ground that it was contrary to evidence, and directed a new trial; and M’Alexander filed a bill of exceptions to this opinion ,pf the court, detailing at large all the evidence which had been given at the trial. The evidence set forth in this bill of' exceptions, was the same with that set forth in the demurrer to the evidence, which Montgomery filed upon the second trial, and in which the court compelled M’Alexander to join.
    Without detailing the evidence set forth in the demurrer to evidence filed upon the second trial,-of which there was a good deal, and .that very vague and very confused, it is sufficient to state, that it appeared — 1st. That the treasury land warrant for 4612 acres of land, was delivered by *M’ Alexander to Montgomery, and the contract between them in relation thereto was made, in August 1782.
    2ndljr. That the evidence of the contract, and of its terms, consisted, 1. Of a bond executed by M’Alexander to Montgomerj-, dated the 3rd August 1782, in the penalty of ¡£2000. with a condition in these words ■ — “The condition of this obligation is such, that whereas the above bound A. M’Alexander hath given W. Montgomery, treasury land warrants amounting to five thousand seven hundred and some odd acres, to be located on the western waters; now, if the said M’Alexander, his heirs &c. make or cause to be made unto W. Montgomery a good and sufficient fight in fee simple to the one half of all the lands he locates for him, and pay all costs for surveying, then this obligation to be void &c.” 2. A receipt for a land warrant given by Montgomery to M’Alexander, in these words— “August 4th 1782, Received of A. M’Alexander one land warrant containing 4612 acres of land, likewise two silver dollars; bj-me, W. Montgomery.’’ 3. The evidence of a witness, proving that Montgomery informed the witness, that he had been employed bjr M’Alexander to locate some land for him in Kentucky, and had located part thereof, but that owing to his want of knowledge of a sufficient quantity of vacant lands, he had been induced to employ the witness’s father to locate a part of the lands, agreeing that he should make the locations on the same terms, on which he, Montgomery, was to have made them; and he stated the terms of the location to be one half of the land, M’Alexander defraying all expenses incident to surveying and patenting.’’ — And 4. proof that Montgomery, acting under the contract did locate, and cause to be surveyed and patented for M’Alexander, about .1300 acres of land, which was afterwards equally divided between them; and Montgomery charged M’Alexander with the expenses of locating, surveying and patenting, this land, and of making the division thereof between them, and M’Alexander paid him the amount of those expenses.
    There was evidence, that there were waste and unappropriated lands in Kentucky, in 1782, subject to location under the land warrant, on which the quantity mentioned in the warrant might have been located; and that, besides the 1300 acres which Montgomery located, and had surveyed and patented, as above mentioned, he made an entry for 3312 acres on Green river, of which however only 1728 acres could be surveyed, because there was no moré vacant land there, subject to be surveyed under the entry; and of the 1728 acres, which were surveyed, the greater part was included in prior and conflicting entries and surveys. 4thly. There was evidence, that though M’Alexander paid Montgomery the expenses of locating, surveying and patenting, the 1300 acres above mentioned, after the same had been patented, yet he refused to advance money for defraying the expenses of sur-vej-s; saying, that though he was bound to defray such expenses after the surveys and patents were completed, yet he was not bound to advance money for the purpose before he got the title for the lands.
    5thly. There was evidence, that after January 1783, there were not to be found in Kentucky, any large quantities of good lands lying in one body, subject to location under the warrant; and that though a Kentucky surveyor located 10,000 acres oí land after November 1783, yet it was of such inferiour quality, that he sold parcels thereof for two dollars per hundred acres.
    And 6thly. There was evidence, , that Montgomery resided in Kentucky at the date of the contract, in August 1782, and there continued until the year 1815, when he came to Virginia on a visit to his friends ; and during his stay here, this action was brought.
    The jury, upon the second trial, found a verdict for the plaintiff M’ Alexander, for 1584 dollars damages, subject to the opinion of the court upon the demurrer to evidence. But the court held, that the law upon the demurrer, was for the defendant Montgomery, and gave judgment for him; from which M’Alexander appealed to this court.
    *Johnson for the appellant;
    no counsel for the appellee.
    
      
      Assampsit. — See monographic note on “Assump-sit" appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
       Limitation of Actions — See monographic note on “Limitation of Actions" appended to Herrington, v. Harkins, 1 Rob. 591.
    
   TUCKER, P.

The declaration sets out a contract on the part of Montgomery, to locate a land warrant on waste and unappropriated lands, and have the same surveyed and patented; and one of the breaches assigned is, that after locating, he failed to have the lands conveyed and patented. The jury has found a verdict for 1584 dollars upon this declaration, and, for aught we know, for the breach of failing to patent what may have been located and surveyed ; which renders the patenting a most essential ingredient in the case, even if we could disregard the general principle, that in an action upon a special contract, the contract must be proved as laid.

To the declaration, the general issue and the statute of limitations were pleaded; and upon the last plea, the parties came to issue, at last, upon this question, — Whether at the time the action accrued, the district of Kentucky had been erected in an independent and separate state, no wise subject to the jurisdiction of any court of Virginia? Upon these issues, I am clearly of opinion, that the verdict in the first trial, and the judgment on the demurrer to evidence in the last, should have been given for the defendant, Montgomery. The contract proved did not bind him to have the ¡and patented, as well as located and surveyed; nor is there .evidence from which any such term in the contract could fairly have been inferred. ' The statement which he made to one of the witnesses, of the terms of the contract, — that he was to have one half of the land, and M!Alexander to defray all the expenses incident to surveying and patenting, refers to the terms of his compensation, which was to be one half, without any charges to him for surveying or patenting. Por, in speaking of what he had been employed iodo, he says nothing of patenting, but only that he was to locate. 1 think, therefore, on this point, the judgment was right.

*On the second issue, I think there can be no question, that the judgment should have been given for Montgomery. He received the warrant in 1782. The whole current of testimony goes to shew that if there was any negligence, — any breach of the contract, it must have occurred long before the year 1789, when the first act was passed for the erection of Kentucky into a state; and it was not until after November 1791, that the jurisdiction of the courts of Virginia was determined. It was not necessary, that the breach should have been five years anterior to the separation: one day before would, have sufficed, for then the statute would have commenced running. Now, if the defendant be chargeable on the ground of negligence, I think it cannot be denied, that he was as guilty at the expiration of nine years from the date of the contract, as at this moment. That would have brought the breach down to August 1791; and from that date the statute would have been a bar. Indeed, if there was a cause of action, it probably accrued as early as 1784. One witness deposed, that good lands, in large quantities, in one place, could not have been procured after January 1783. Another, who was a Kentucky surveyor, after November 1783, made an entry for 10,000 acres, but of such inferiour quality, that he sold part of it for only two dollars per hundred acres. Afterwards, it seems probable, more could not be obtained. Now, the statute runs from the time the negligence occurred; as, in the case of an attorney, it is not the loss of the debt which gives the action, but the unskilfulness or negligence whereby it was ultimately lost, arid the statute runs from the date of that negligence; Wilcox v. Plummer’s ex’ors, 4 Peters 172; Short v. M’Carthy, 3 Barn. & Ald. 626; 5 Eng. C. L. R. 403; Howell v. Young, 5 Barn. & Cres. 259; 11 Eng. C. B. R. 219. The application of the statute, in the present insta ace, can be no subject of regret. The transaction is very stale; and the evidence in support of the action, very vague and inconclusive. The question how far a party is to be required, relictis omnibus negotiis, to proceed to the fulfilment of one *of these contracts, is not very easily answered; and the presumption that the locator, who had an equal interest, and no expenses to incur, would not grossly neglect the concern, is very strong. Add to this, that Montgomery did not abscond from our jurisdiction, but was cut off from it by an act of sovereignty, and that M’Alexander might, at any time within the last forty years, have asserted his claim in Kentucky, where the question of due diligence would have been settled by a Kentucky jury, surrounded by a cloud of Kentucky witnesses, who best knew what in those times did, and what did not, amount to due diligence in such cases. We have little reason to fear, that the rigorous principles of law will work injustice between the parties in this controversy.

The judgment is to be affirmed.  