
    Preston v. Harvey.
    Friday, March 4, 1808.
    Appellate Practice — Judgments—Illegal Evidence Admitted-Effect Where No Injury Resulted, — A judgment ought not to Re reversed on tRe ground tRat tRe Court below admitted illegal evidence, or gave an erroneous instruction to tRe jury, unless it appear that some injury could possibly Rave resulted therefrom to tRe party aiipealing.
    Judgments — Res Judicata. — A verdict, on which a judgment is rendered, is conclusive evidence in any subsequent suit between the same parties, or their privies; the same point coming in question: though the lands or other thing in controversy be not the same.
    Survey — inclusive.—An inclusive survey cannot lawfully be made oi lands held by entry only.
    Caveat-Inclusive Survey — Judgment.—A judgment, on a caveat, that no grant shall issue to the ca-veatee on his inclusive survey, where it appears that he has any other claim or survey, by which he may possibly hold a part of the land, ought to be so worded as not to affect his right under such claim or survey.
    Same — Same- Same. — In such case, the j udgment ought not to be. that “no grant issue to the cave-atee for the land mentioned and described in his inclusive survey, caveated,” &c. but "that no grant issue to him in pursuance of his inclusive survey, made under the order of Court granting him leave to comprehend in one survey his several adjoining claims.”
    Robert Harvey, by his attorney, on the 27th of August, 1799, delivered to the clerk of the District Court holden at the Sweet Springs, a certified copy of a caveat entered by him with the register of the land office against the issuing a grant to Thomas Preston for 590 acres of land lying in Bot-etourt County, surveyed for the said Preston the 13th day of December, 1793, under an order of the County Court of Botetourt, granting him leave to comprehend in one survey his several adjoining claims.
    The caveat stated that Harvey claimed
    part of the land by better right; viz. 25 acres by an entry dated April 26, 1791, surveyed May 5, 1798, and patented April 20, 1799; 130 acres, part of an entry made for 150, on *the 3d of May, 1798, which 130 acres were surveyed the 5th of May, 1798, and patented May 13, 1799; and 97 acres, part of an entry made for 100, on the 3d of May, 1798, which 97 acres were surveyed the 5th of May, 1798.
    Preston’s inclusive survey aforesaid, (a certified copy whereof was filed together with the caveat,) consisted, 1st, of 192 acres, granted to John Mills by patent dated June 27, 1764, conveyed by deed from Mills to Robinson, and from Robinson to Preston, (which 192 acres were not in dispute;) 2dly, of 180 acres by part of a warrant for 2,906 acres, No. 10,629, issued the Sth of January, 1782, assigned to the said Preston by Samuel Walker, who was as-signee of John Miller, (which 180 acres consisted of 150 entered by Preston, Aug. 20, 1785, and of 30 entered by him Dec. 10, 1793;) 3dly, of 218 acres by part of a warrant for 1,977 acres, No. 8,470, issued April 5, 1782, assigned to Preston by Samuel Baldwin, assignee of John Wood, who was as-signee of John Dovie; which 218 acres consisted of 198, entered by Preston, Dec. 10, 1793, by virtue of the warrant last mentioned, and of 20, entered by him, June 23, 1790, not by virtue of that warrant, (as his certificate of survey states,) but of part of a warrant, No. 21,910, on which he made the entry as assignee of Matthew Harvey, assignee of Joseph Hawkins, who was as-signee of David Anderson.
    An order of survey of the lands in controversy was made by consent of parties, May 22, 1801, and executed by the surveyor of Botetourt County, who returned to the Court five fair plats and certificates, according to which it appeared that all the several tracts claimed in the caveat were within the bounds of Preston’s survey of 590 acres % and that part of a survey of 187 acres, made for the caveator the 3d day of June, 1785, was also included therein; concerning which 187 acres there was a controversy, in another caveat, between the same parties; the decision of the *Court of Appeals relative thereto being reported in the case of Harvey v. Preston, 3 Call, 495.
    On the 20th of May, 1802, a Jury was sworn to inquire into such facts as were disagreed to and submitted to them by the parties.
    Before the Jury retired, Preston, the ca-veatee, tendered two bills of exceptions, which were signed and sealed by the Judges, and made a part of the record.
    The first stated that the caveator introduced as evidence to the Jury, “the surveyor of Botetourt County, with a list of entries and surveys, to prove that the caveatee had by prior entries exhausted the warrant on which his last entry was founded; which surveyor also proved that, as to a number of entries referred to, it did not appear in his books that they were made under the warrant in question; and the defendant objected to the evidence of the surveyor, and to the said list, as not the highest evidence which the nature of the case will admit off which objection was overruled by the Court,” &c.
    The second bill of exceptions stated, that “the caveator moved the Court to direct the Jury that a verdict, on which a judgment was rendered, in another trial” (which, it seems, was the trial in the caveat above-mentioned, 3 Call, 495,) “between the same parties, was conclusive evidence to prove
    
      the fact of the warrant being exhausted; as the finding in the said verdict was in a trial between the same parties, in which the same point was controverted, in which the title to the same land was in controversy, as is the'subject of this caveat, and finds the same fact; that the Court directed the Jury that the said verdict was conclusive evidence,” &c.
    It appeared from the evidence of the surveyor, and the list of entries and surveys, mentioned in the first bill of exceptions, that the warrant for 2,906 acres, No. 10,629, under which the caveatee made his entries of ISO and 30 acres before mentioned, had been exhausted, before those entries were made. The verdict referred to in the second *bill of exceptions, (among other circumstances,) found that the warrant on which the caveatee made his entry of ISO acres, “was all appropriated before the same was made;” but said nothing concerning the entry of 30 acres by virtue of that warrant: neither did the testimony of the surveyor, with the list of entries exhibited by him, nor the said verdict, mention any thing concerning the other two entries of the caveatee of 198 and 20 acres.
    The Jury returned a verdict in which they found the entries, surveys and patents made and obtained by Harvey, the caveator, for 25 and 130 acres, as aforesaid; but said nothing about his entry and survey of 97 acres; the plat and certificate of which were nevertheless inserted in the record. They also found that the warrant for 2,906 acres, No. 10,629, was exhausted before Preston made his entries of ISO and 30 acres; but said nothing about his other two entries aforesaid, amounting to 218 acres.
    It appeared from the first verdict, that Preston’s entry of 150 acres was not surveyed until the 13th of December, 1793, when his inclusive survey was made; and although a certified copy of a survey and plat was inserted in the record, (by what authority does not appear,) shewing that his entry of 30 acres was surveyed the 16th of March, 1785, it does not appear that his other entries, of 198 and 20 acres, were ever surveyed until the time of the inclusive survey.
    The District Court decided, that, upon the whole matter, the law was for Robert Harvey; ‘ ‘therefore it was considered that no grant issue to the said Thomas Preston for the land mentioned and described in his inclusive survey caveated by the said Robert Harvey,” &c. from which judgment Preston appealed.
    Randolph, for the appellant, said, that the objection taken in the first bill of exceptions was a good one. The question was, whether á warrant was exhausted by prior entries. To prove this the book of entries ought to have been *produced; the testimony of the surveyor from memory being not the best evidence the nature of the case would admit, and therefore exceptionable.
    The second exception was also well founded; because the Court had held a former verdict on the same point to be conclusive. He allowed it to be good evidence, but not conclusive; for it may be repelled by other evidence: as a Jury may find, a verdict describing boundaries, which another Jury may find incorrect. This is certainly the rule in ejectments; for, after the decision of one ejectment against the plaintiff, he mav bring another for the same land against the same defendant, and this would be of no use if the finding of the former Jury was conclusive. The advantage of a former verdict is great, however, by way of inducement or persuasion to the second Jury; but it is not conclusive.
    Caveats are unknown at common law; but there is good - reason for not holding them to stricter rules than ejectments; because in a caveat no issue is made up; and no information is given of the points in dispute, except by the caveat itself. This is not the same case with that reported in 3 Call, 495. In that suit Harvey claimed 187 acres, concerning which there is now no question.
    Wickham, for the appellee. The case reported was a caveat to a grant on this very survey of 590 acres. I admit that our caveat at that time related to a different part of the land from our caveat now. But, in the argument of that case, I went upon the ground that the whole survey was radically wrong. Preston got permission to make an inclusive survey by an order of Court under the act of assembly, prescribing the mode of obtaining inclusive surveys and grants. Under this authority he attempts to unite three different rights: one a survey and patent, another a survey under an exhausted warrant; the third an entry without a survey at all. An inclusive survey applies only to cases where there have been actually previous surveys; and an inclusive grant to cases only where there had *been actually separate grants; the law therefore does not comprehend Preston’s case. There was no original survey of the 218 acres; therefore there could have been no resurvey. This point is the same as that decided in the case reported, which is therefore precisely the same with this. Assume, for argument’s sake, that the warrant for 2,906 acres was not exhausted; still the other objections to the survey were such that no grant could issue.
    As to that warrant, the circumstance, that a number of the entries referred to did not appear from the surveyor’s book, to have been made under it, was unimportant; because it sufficiently appeared that there had been entries, prior to those of Preston, to the full amount of the warrant. Patents are frequently issued where the entry says only “by virtue of a state warrant.” In such cases, therefore, a warrant never can be considered as exhausted, unless the testi-mony of the surveyor be admitted to prove that it has been exhausted.
    There is no analogy between an ejectment and a caveat. The latter is conclusive between the parties, and settles the dispute as finally as a writ of right. It is not denied that a verdict in ejectment is not conclusive: but a verdict in trover, or any other action that concludes the right, is conclusive between the parties.
    
    What is it that Preston wants? A grant on a survey made without authority; 180 acres without any warrant; 218 acres not surveyed at all. If it be said that those 218 acres were entered before Harvey’s entry, I answer, it is enough for him, as caveator, to shew that he has a claim, whether correct or not; provided his adversary’s claim be such as ought to be ca-veated. If Harvey’s title be defective, Preston may caveat him.
    .Randolph, in reply. Once more I ask the Court to consider what the judgment is, which I say ought to be reversed. Preston’s survey is prior in every respect to Harvey’s rights. Yet the Caveat and the judgment is, that no *grant shall ever issue to Thomas Preston for the 218 acres, which are free from all the exceptions about the exhausted warrant. I admit it was wrong to comprehend them in the inclusive survey; yet they were surveyed. The land is not to be forfeited; yet it is to be cut up by the comprehensiveness of Harvey’s caveat, and of the judgment. Eet the project of caveating Harvey be tried: A man of one thousandth part of Mr. Wickham’s sense would defeat the caveat; since the judgment now in question not being reversed, would be set up against it.
    We have the lines delineated in the inclusive survey: the Court have declared it void as an inclusive survey; but it is good as a separate survey of the parts; and the surveyor may be made to strike out all but the 218 acres, our title to which is admitted to be good.
    As to cases cited to prove that parties are estopped by a verdict: wherever a verdict operates in rem, or may be pleaded in bar, it is conclusive. Not so in ejectment, because in that action every fact decided in a preceding ejectment may be controverted. The Courts in this country ought to be as liberal in caveats as the British Courts are in ejectments. Is the decision in a caveat peremptory against a man who holds a patent in his hand at the time, but fails in his caveat? The principles of law do not warrant such a doctrine, which, if it prevailed, would unsettle many good titles. According to this doctrine, a man holding a patent caveats another; if he fails in any of the critical learning about caveats, he is to lose his freehold altogether. But surely, he may lose in the caveat, and afterwards stand a trial in ejectment on the validity of his patent.
    Wickham. We only contend that the grant shall not issue on the survey now in question; not that surveys cannot be made on the entries for 218 acres. I think that surveys cannot now be made on those entries. But, if I am wrong in this, Preston may proceed to have them made. *If he has lost the title, it is by his own fault, for not surveying according to law.
    Randolph. The attempt is to deprive us of the possibility of shewing that w'e still retain the legal right to those 218 acres.
    
      
       Rev. Code, 1 vol. p. 148, sect. 48.
    
    
      
       1 Peake's Ev. 29, citing in note. 2 Black. Rep. 977; Scott v. Sherman, 2 Term Rep.: Cook v. Sliowl. Peake’s Ev. 32, a verdict on which no judgment is entered is not conclusive, 4 Sup. to Viner, 299, pi. 8, 2 Esp. Cases at N. P. 608.
    
   Thursday, March 10. The Judges delivered their opinions.

JUDGE TUCKER.

Harvey entered a caveat against the emanation of a patent to Preston for 590 acres of land, on a survey dated the 13th of December, 1793, because he claims part of the land therein contained under a better right, which he sets forth accordingly.

Mr. Wickham, for the appellee, contended, that the question now presented to the Court had been already decided in this Court, in the case between the same parties, reported in 3 Call, 495. And, at first, I was inclined to suppose it was. But, on reference to the record in that case, I find the judgment was, that no grant should issue to T. Preston for that part of the land contained in his inclusive survey, which is included in the said R. Harvey’s survey of 187 acres; which was the only part in controversy in that suit. The title to the residue of the 590 acres, therefore, was not affected by that judgment.

On the trial of the present caveat, the defendant offered two bills of exceptions to the opinion of the Court, which were allowed. The first alleged that the plaintiff introduced the surveyor of the County, with a list of entries and surveys referred to, to prove that the defendant had, by prior entries, exhausted the warrant on which his last entry was founded ; which surveyor also proved that, as to a number of entries referred to, it did not appear in his books that they were made under the warrant in question. And the defendant objected to the evidence of the survey or ’ s ^'certificate to the said list, as not the highest evidence which the nature of the case will admit of; but the objection was overruled by the Court, and I am strongly disposed to think that they erred in so doing. Eor, in a question o± that nature, I think the book of entries itself ought to have been introduced, that the Jury, by inspecting the original entries in each case, might determine whether any or all of them were made upon other warrants ; more especially when it came out upon the oral testimony of the surveyor, that as to a number of entries referred to in the list it did not appear in his books that they were made on the warrant in question. This part of the testimony might have the effect of warning the jury not to place implicit confidence in the list submitted to their inspection ; but, on the other hand, the permitting the list to go to them as evidence might tend to mislead them. And it has been decided in this Court that the permittng any improper evidence to go-to the Jury, is error.

The second bill of exceptions states, “that the counsel for the plaintiff moved the Court to direct the Jury, that a verdict on which a judgment was rendered in another trial between the same parties, was conclusive evidence to prove the fact of the warrant being exhausted; the finding in the said verdict being in a trial between the same parties, in which the same point was controverted, and in which the title to the-same land was in controversy, as was the subject of the caveat then depending, and finds the same fact; and the Court directed the Jury, that the said verdict was conclusive evidence.”

It has long since been settled, that a verdict on the same point, and between the same parties, may be given in evidence, though the lands are not the same, But this is to be understood with this restriction, that it is of a matter which was in issue in the former cause, And, not only between parties, but between privies also, is the verdict admissible ^evidence. - Now, here the question was, in both cases, as to the validity of Preston’s last entry; the fact put in issue being that the warrant upon which that entry was made had been exhausted by prior entries. I therefore think the verdict was rightly admitted to go to the Jury: and on the authority of Shelton v. Barbour, in this Court, where the question _ was, whether the evidence offered should have been left to the Jury as circumstantial evidence only, oras conclusive evidence of the fact in issue; and this Court decided, that the District Court erred in not instructing the Jury that it was conclusive as to that fact.

The question now is, whether there must be a new trial between the parties, because of the 'admission of the-evidence excepted to in the first bill of exceptions, which I have already spoken of, as erroneously admitted. It is in general true, that if the Court admit any improper evidence, upon a trial, which is made to appear by a bill of exceptions, there must be a new trial. I was, at first, inclined to suppose, that the present case furnishes an exception (and probably the only exception) to the rule. Por the error apparent from the first bill of exceptions was, I conceived, completely cured by the matter contained in the second bill of exceptions; the evidence excepted to in both instances being adduced to prove one and the same fact, upon which fact the merits of the case entirely depended; viz. whether Preston’s warrant was exhausted by prior entries. And, although the Court admitted improper evidence as to that fact, at first, yet as further evidence, and that conclusive between the parties, was also adduced to the same fact, I thought that it would be a vain thing to reverse the judgment for the first error, and to direct a new trial to be had, in which the verdict should be admitted as conclusive evidence of the fact in question, since the result (except as to costs) must be precisely the same, as if *we should affirm the judgment. ' And, though it might seem a little hard to throw the costs upon the appellant, where there has been any error, yet, as, by his own shewing in the second bill of exceptions, that error was rendered unimportant by subsequent conclusive evidence to the same fact, I thought it -would be running the parties to much unnecessary expense, if, from a mere scruple in respect to costs, we should award a new trial. But, from a further examination of the record, I find that the conclusive evidence arising out of the verdict in the former suit relates only to Preston’s entry for ISO acres of land, made on the 20th of August, 1785, of which Harvey recovered in the former caveat the part included within his (Harvey’s) survey of 187 acres; but has no relation to Preston’s entry for 30 acres under the same warrant, made antecedent to the entry for ISO acres, nor to the entries for 218 acres, made under other warrants; touching which the former verdict contains no evidence that it was exhausted. Consequently, as to these entries, the evidence objected to in the first bill of exceptions, remains unfortified by the conclusive evidence in the first verdict. There ought, therefore, to be a new trial, unless there be some other reason, arising out of the record, to the contrary. This reason, I apprehend, is furnished by Mr. Preston’s inclusive survey, which I am of opinion was not authorised by the act relied on, which I concur iu thinking relates only to patented lands, Upon this point, therefore, I am of opinion, that the judgment of the District Court must be affirmed, with some small amendment, viz. that no grant issue to Thomas Preston in pursuance of his inclusive survey, made the '13th day of December, 1793, under an order of the County Court of Bot-etourt, granting leave to him to comprehend in one survey his several adjoining claims.

JUDGE ROANE.

The question made by the first bill of exceptions, need not be decided by this Court. That question, in relation, as well to the inconveniences and consequences *possibly resulting from a reversal of the decision of the District Court, as to the actual practice of surveyors touching the point in dispute, may be so important, that, without necessity, and with no greater lights than I have at present, I shall be unwilling to pass an opinion upon it.

The decision, to which that .exception was taken, was, that the surveyor (with the list of entries) was admitted to prove that the land warrant, No. 10,629, was exhausted before Preston’s entry for the ISO acres was made. Admitting, for the present, that this testimony was illegal to prove this point, is not the error cured by the decision mentioned in the second bill of exceptions? That decision is that the verdict, in the former case, between the same parties, respecting the same land, and going to this very point, is conclusive evidence to establish the point. If this last decision be correct, was not the former error of the Court merged in it, and deprived of all power and tendency to injure the cause of the appellant? for the latter covers more ground than the former, and destroys its effect. He could not be injured by the admission of illegal evidence to a particular point, if, afterwards, legal and conclusive testimony was exhibited, under the express sanction of the Court, which overwhelms the former testimony, and concludes and shuts up the point forever. In such case, it is the latter and not the former testi-motiy, which produces the verdict of the Jury. It has often been decided here, that an error of the inferior Court cannot be complained of, or appealed from, if it be beneficial to the party appealing. In the case of Smith v. Harmanson, in debt on a bond, the Jury found a verdict of an aggregate sum of principal and interest, for which judgment was rendered. This Court was of opinion, that, although this was erroneous, yet, being for the benefit of the defendant, (inasmuch as it stopped the continuing interest,) he could not complain of it, or appeal on that account. In the case of Pendleton v. Vandevier, Pendleton was appellant, and complained of a judgment against him for land: the judgment *was reversed; but this Court being of opinion that Vande-vier ought to recover a greater quantity of land, the judgment was entered for such greater quantity, and Vandevier also recovered the costs as the party prevailing, inasmuch as the error of the Court below was in favour of Pendleton. Many other ■decisions might probably be found going to establish the same principle.

The doctrine then seems to be established, that a party shall not complain of, or reverse a judgment for, an error which is beneficial to him. It is but pursuing the same principle to say, that a judgment shall not be reversed for an erroneous decision, unless some injury could possibly have resulted therefrom to the party appealing. This Court does not sit here to reverse judgments for erroneous opinions on mere abstract or immaterial questions; but to give redress to parties grieved by the decisions of the inferior Courts.

In the case before us, no injury could have arisen to the appellant from the admission of the testimony excepted to in the first bill of exceptions, because, as I have already said, that testimony was entirely superseded, and rendered unnecessary to be considered by the Jury, by the superior and conclusive evidence of the verdict mentioned in the second bill of exceptions. It is said to have been settled here that the permission of any illegal evidence to go to the Jury, is error. This is admitted as a general position; but, in a case like this, it is not such an error as to' cause the reversal of the judgment. This distinction seems warranted by the principle of the cases before stated.

There is no doubt but the opinion of the District Court, in relation to the admission of that verdict as evidence, is right. The case of Shelton v. Barbour is full up to this point, and perhaps goes beyond it; and in the case of Pegram v. Isabell, the doctrine in that case seems admitted, as between parties and privies, by the counsel on both sides. In Shelton v. Barbour, the same objection was taken as is here taken, viz. that the former ver-diet was only persuading ^evidence; but the objection was overruled, and the verdict declared to be conclusive evidence. It is unnecessary to fortify the solemn decisions of this Court by repeating the reasons on which they are founded; but it is evident that the rule in question is a wise one, inasmuch as it is necessary that an end be put to litigation, and in order to provide against the loss of testimony, &c. On the other hand, the adverse party is not injured, for he had an opportunity to cross-examine the Witnesses on whose testimony the first verdict was founded.

On these grounds, Harvey was entitled to prevail against Preston on the merits, as to all the land which he (Preston) claimed by virtue of the warrant, No. 10,629. As to the residue of the unpatented land, claimed by Preston’s other entries, the inclusive survey in question is incompetent to bar Harvey’s caveat; it being still my opinion that an inclusive survey does not extend to lands held merely by entry. As to this residue, I presume that the judgment of the District Court has reference only to the inclusive survey, which is opposed by the caveat. It ought not, and, I presume, does not, affect any ulterior claim or survey, (a separate one for example) by which Preston may possibly hold this land. If, however, there be any doubt on this subject, I agree that the decision of the Court may be so expressed as to be fully understood upon the point; and, upon the whole, that the judgment of the District Court be affirmed.

JUDO® FLEMING.

I concur with the other Judges in affirming the judgment of the District Court; and, by the special entry, it will, in effect, be affirming it without prejudice; as it will leave Preston at liberty to pursue, by any legal means in his power, his right to the 218 acres entered upon warrants that had not been exhausted.

The opinion of the Court was, “that the act authorising inclusive surveys does not extend to lands claimed by *"entry only; and therefore that no grant issue to the appellant in pursuance of his inclusive survey made the 30th day of December, 1793, under an order of the County Court of Botetourt, granting leave to him to comprehend in one survey his several adjoining claims, and that the judgment of the District Court be affirmed. ” 
      
       Sberwin v. Clarges, Bull. N. P. 232.
     
      
       Ibid. 233, Hobart, 53.
     
      
       Bull. 232 ; 2 Wash. 64, Shelton v. Barbour.
     
      
       2 Wash. 67.
     
      
       Rev. Code, 1 vol. ch. 86, sect. 48, p. 148.
     
      
       See 3. Call, 499.
     
      
       1 Wash. 6.
     
      
       lb. 381.
     
      
      
        2 Wash. 64.
     
      
       Hening- and Munford, 387.
     