
    POLK’S LESSEE vs. GENTRY ET ALS.
    When this case was called in the afternoon both parties insisted that it might lie ever until the next day. But by the court. It must be continued or tried, it is however discretionary with the court. When such a request is made late in the eveining and a lengthy cause is likely to come on, they will grant it by consent of both parties, but very rarely otherwise.-It was then agreed to continue the cause until next court.-On the next day an application was male by the counsel on both sides to set aside the continuance and to try the cause.
    The linerun by the commissioners in February 1784, is the true continental line and cannot be disputed by individuals.
    
      Per Curiam. All the parties to suits in this court are interested in the question now before us. There is certainly much more business than we can do during the term, and now to go back for the trial of this cause, would be doing injustice to others.-If however the gentlemen of the bar, who represent their clients, will consent to it, the court have no objection on this this occasion, but it is an application that should be rarely attended to. There was no objection from the bar and the court proceeded to the trial of the cause.
    The plaintiff produced a grant to Thomas Polk, dated July 10th, 1788, for 5000 acres in the middle district on the head waters of Harpeth, No 720 Po. North 84 East, with the continental line 1040 po South 824 poles west 1036 poles to the beginning.
    It was admitted by both parties that the interference of the grants is correctly laid down in the plat. The defendant, produced a grant dated September 26th, 1795, for 5000 acres, to George Parks, No. of Warrant 447 located 25th of October, 1783 on the South side of Cumberland river, beginning on the continental line near where it crosses Big Harpeth running up, including both sides for compliment. It was admitted that the defendant had the oldest entry. It is represented in the annexed plat. The south west and north west corners are common to both tracts. The 1000 acres claimed by the defendants is in the south west corner. It appeared that a line was run by public authority for the continental line in the latter part of the year 1782, and another line by public authority several miles more to the south was run in February, 1784. The question with the court and jury was, which of these two lines was intended by the entry under which the defendants claimed.
    John Davis said he had been acquainted with both lines, since the year 1792, and had always heard the first line called the commissioners line, and the other, the continental line, that Harpeth is much larger where the first line crosses it, than where the last does, which is seven or eight miles higher up, and more south-Major Tatum said that Major Freeman, the United States surveyor, made the southern boundary of the State, two miles and 296 poles further south than General Smith had formerly done. Oliver Williams, a deputy surveyor in the second district, stated, that by actual measurement from Smith’s experimental line, to the last line run for the continental line, near the head of the east fork of Stones River, was 48 miles and 48 poles. That he ran the eastern boundary of the military reservation (which by law should be 55 miles south of the northern boundary of the state) and by actual measurement, found it to be 572 miles in length from the northern boundary, to the intersection of the line, run in February, 1784-That as the state is one and an half degrees wide from north to south, making 105 miles, he concluded that the last line run in the year 1784, is, if not perfectly accurate, too far to the south.
    Dickinson, for the defendant.
    The Act of April, 1782, c. 3. s. 7. 8. under the authority of which the first line was run, does not point out where it shall be run, it was left discretionary with the commissioners.-They ran a line in the fall of 1782 which was complained of, and the legislature in April following, Ird. 450 enacted "for prevention of disputes, that the officers and soldiers aforesaid, shall enter and survey the lands within the following lines, beginning on the Virginia line, where Cumberland river, intersects the same, thence south 55 miles, thence west to the Tennessee river, thence down the Tennessee, to the Virginia line, thence, with the Virginia line to the beginning.” Agreeably to this act, the last line was run by commissioners appointed for that purpose.-We admit this line was run after our entry which called for it, but must be admitted also, that at the time the entry was made, the law contemplated such a line. It had a potential existence, and we might lawfully call for it, as we did.
    Haywood and Whiteside, for the plaintiff
    argued that the first line was manifestly the one called for in the entry-This line lies seven or eight miles more to the north and consequently the defendants claim lying there could not interfere with us.
   Humphrey’s J.

sitting alone (absent Overton, J. who was interested in a similar question). The line run in February, 1784, by public authority, is the true continental line, and no person can be permitted to dispute it; and I am inclined to think, that the entry under which the defendants claim might legally call for it, before it was actually run, but of this, I am not perfectly clear. It is left with the jury.

Verdict for defendants, and a new trial was, granted, in order that it might be further discussed ex relatione judge Haywood.

Note. Upon a second trial at May term, 1809, before Campbell, J. and Humphreys, J. agreeably to the directions of the court another verdict was found for the defendants. Judge Humprey’s stated on this trial, in addition to what was formerly said, that to construe the entry so as to make it apply to the first line, would be directly contrary to the acts of 1783, respecting Military and John Armstrongs lands. These acts forbid the entering of John Armstrongs claims north of the last line, we cannot therefore presume it was intended to be entered there.  