
    CRAIG vs. BAKER.
    
    When the de-feriptive calla of an entry give a wide held in which to fearch. for an objedt* nothing but a very general knowledge, at the date of that entry, amongfi thole who were acquainted in that quarter of the country* with the precife íituation, and fome individual char:*6eriftic of the objedf called for, could fup - port the entry.
    
      AN appeal from a decree of the Mason circuit court. In September 1802, Baker exhibited his bill in chanr eery, praying relief against a judgment in ejectment, obtained by Craig, who had acquired to himself the elder legal title, under a claim originally entered for John Tabb, The equity set up was derived from the following entry: “ April 20th 1780, Jacob Lockhart, as-signee,, &c. enters 500 aeres of land, on the north side of the Kentucky river, on Haw creek, a branch of the Ohio, to include Scott’s spring, about eight or nine miles from the mouth oí Limestone, running eastxvardly from said spring for quantity.”
    
      A better title to land cannot be defeated, rc-leafcd or estin-guiihfd, by a rniftake of opi-nio?), a confef fion of la w, nor the expr.-iSon of an intention by t-he holder not to proiecute it j akho’ that dec larationwere made to a third perfon who was then in treaty for the confiift-ing title.
    
    By an amendment exhibited on the 26th of May 1804, (after the cause was set for hearing) the complainant stated, that previous to adventuring his money for Lock-hart’s claim, he heard that Craig was the proprietor of Tabb’s claim, or of so much as interfered with Lock-hart’s, and applied to him to know whether he should contest it. That Craig answered, “ It was as good a claim as any on the north side of Licking, and he should not contest it;” or words to that effect. That influenced by these assurances, and by the high idea he had of Craig’s judgment and candour, he purchased of the representatives of Lockhart.
    Upon the hearing, the circuit court decreed against the complainant upon the matter of the amended bill, but sustained Lpckhart’s entry; from which decree, Craig appealed.
    That court assumed, as the basis of the decree, that Haw creek and Limestone were objects of good general description, and that Scott’s spring was identified and notorious.
    The following is the substance of the depositions, as far as they relate to the notoriety of Scott’s spring:
    John Haggin, Robert Patterson, William Garrett, and Bartholomew Fitzgerald, were called by the complainants to speak of Haw creek, previous to 1780. They all declared that though they had heard of Haw creek, (and some of them had been on it) in 1773-4 and 5, yet they had never heard of Scott’s spring, even ⅜ late as 1782.
    Simon Kenton swears he made an improvement at the spring, in 1775 ; and in 1776 he sold it to Andrew Scott, being then on Elkhorn ; from which time/te himself called it Scott’s spring. That the settlement took place, in that part of the country, in 1784 ; and then, or the year following, he heard the settlers call it Scott’s spring. That no person was with him at the spring, from the time he sold his improvement to Scott, until 1784. That Thomas Williams, the only man who was ever with him at the spring, before Lockhart’s entry was made; left him in 1776, and he has never since seen him, nor heard of his being in the country. That he has been acquainted with Patrick Jordan, since in the Spring 1780.”
    Patrick Jordan says he was at Haw creek in 1775, with Andrew M’Copnell, William M’Connell, Cyrus M’Cracken, John Laffity, and others ; and went up the creek to a big spring, since called Scott’s spring. That then it had no name ; and the second time he was at it, there was «n improvement. This was in 1780. He fell in with Scott at Lexington, who asked him to go to the big spring on the head of Haw creek; and they found it; which was the first time he (Jordan) heard it called Scott’s spring. That Scott told him he had bought the improvement of Kenton ; and Kenton said he sold the spring to Scott, from which it took the name of Scott’s spring. That he was‘there with Thomas Clark, in 1780, or 1781, who called it Scott’s spring.
    William Henry deposeth, that in the winter 1784-5, he was employed by Kenton as a surveyor ; that while he was employed in surveying some entries, Simon Kenton went with his brother, John Kenton, to show him Scott’s spring, to enable said John to show it to the surveyor. That some short time afterwards, John Kenton took him to the place called Scott’s spring, (as he has since been informed) but could not be certain as to the place, and declined making the survey. The remains of a cabin were at the spring.
    Henry Lee deposeth, that the first ho ever knew of íÜ^vr creek, was in 1783, or 1784, from seeing an entry tli^'called for it. That in 1785, he made a survey on that-entry, and one in the name of John Kenton ; and that Simon Kenton, who employed him, sent a man to show Scott’s spring; and he has known it by that name ever since.
    After that period, Scott’s spring became notorious, as Was proved by a number of witnesses.
    The connected plat shewed Haw creek (now called Bracken creek) ; part of the Ohio ; the mouth of Limestone, emptying into the Ohio ; Scott’s spring, between 8 and 9 miles from the mouth of Limestone ; and seventeen other springs on the head waters of Haw creek, nine or ten of which W'ere within nine miles of the tnouth of Limestone, and around Scott’s spring.
    Craig’s answer to the amended bill, in substance, admitted his declaration to Raker ; declared it was then Ris candid opinion ; and that he believes, had Baker then requested him to relinquish his claim, he would have done it for one dollar. But finding since, that he was mistaken in his opinion of the goodness of Lock-hart’s entry, he did not think he was bound to convey his better right to Baker. Several depositions were taken, to shew the nature and extent of Craig’s declaration.
    
      April 23rd.
    
    Marshall, for the appellant.
    — .Lockhart’s entry must depend upon its goodness at the time it was made ; and the notoriety which the objects it calls for, are proved to have possessed at that date. No after-acquired notoriety can help or aid it, Were this tolerated, there is scarce any object, called for in any entry, but what could be proved to be notorious at some after dav. Take out of this cause, the depositions which speak of the knowledge Of Scott’s spring, subsequent to the making of Lock-hart’s entry, and scarce a skeleton will be left.
    There is no proof in this cause, that the mouth of Limestone was notorious ; and you must judge of it from the proof in the cause. Strip this entry of this call, and you have the whole range of the Ohio, north of the Kentucky river, to search for the other objects. But if Limestone were admitted, you would then have half a circle, of 8 or 9 miles distance from Limestone, to search for the creek and spring. And when the creek is found, you have the whole range of the creek, to search for Scott’s spring. If you were to require a subsequent locator to do all this, and he were so fortunate as to find all these objects, another insuperable difficulty presehts itself ; the spring now claimed, was surrounded by htSfer springs, answering the general descriptive calls entry, as well as it did ; and it possessed no designating characteristic mark, by which it was to be known from the other springs.
    An entry, to be good, must possess a description by which it can be found ; and when found, known from all others ; or it would only serve to deceive, mislead or bewilder ; and not to give notice to a subsequent locator. If an entry does not contain a correct description, which will lead you to the land intended to be appropriated ; it must call for an object, by a name generally notorious — -See the cases Speed vs. Wilson, Pr. Dec. 93, 95 — BPClenahan vs. Litton, Hughes ITS — Same vs. Berry, Hughes 170.
    As to the ground set up in the amended bill, it was a mere expression of opinion upon the merits of two claims, equally known to Baker as to himself. It was not intended as a contract between Craig and Baker, nor looked on as such.
    But if it were intended as a contract, it is void ; being nudum pactum. There was no consideration to support it. It is void too, under our statute of frauds and perjuries ; not being in writing .
    The cases to be found in the books, where a person has been precluded from prosecuting his claim, on account of a third person’s being deceived, will turn out to be cases where there was a concealment of a fact; or an assertion of the existence of a fact, which was incorrect ; and are not cases where a bare opinion is given upon facts well known. They will also be found to be cases where the party could relinquish his claim by word ; and not cases where he had the legal title to the land in him, which can pass by deed only.
    But were this a formal contract, it would not bind Craig ; for when a man mistakes the law, and mistakes his right, he shall not be prejudiced by what he does under such mistake. If loose expressions of opinions, as to land claims, were to bar men of their rights, there áre but few claims that would not be endangered. The opinions of the best informed have changed. Witness the revolution in opinion as to entries calling for surveys created by the decisions in the case of Tandy's heirs vs, Bledsoe 
      
       — Robertson vs. Morgan 
      , and Key vs. Matson 
      
      .
    
    At most, Craig’s declaration was only an admission pf law ; and an admission of law is not obligatory.
    Hughes, for the appellee.
    — Although there is no witness who says that the mouth of Limestone was notorious, many of them speak of it in a manner that proves it to he notorious ; they describe other, objects hy their relative bearing from the mouth of Limestone. This is equally as satisfactory as if they had §aid, in so many words, it was notorious.
    There is no contest here about the creek ; and the distance which the spring is described as being from the mouth of Limestone, will lead to the head of Haw creek ; for its mouth is much farther than the distance called for, from the mouth, of Limestone : this will give you but the space embraced by the head waters of that creek^ t0 search for the spring called for, I rely upon the de« positions, to prove that it vvas sufficiently known, to have been found within that compass.
    You must not require of a locator to give such a description as the present face of the country would afford. You must recollect that the present state then formed but one county ; and that its remote parts were necessarily but little known. You could not expect that a locator would give such a description, that another, by barely looking at the entry in the surveyor’s office, would certainly know where it lay. A subsequent locator should make reasonable inquiry of the hunters and locators acquainted in that part of the country, in which the land is said to lie. If from them, he could learn the situation of the objects called for, it is sufficient.
    In many decisions given by this court, the entries have been supported, because, as the court express them^ selves, a subsequent locator could have found the objects called for, by reasonable inquiries in that quarter of the country,
    As to ⅛ other point in the cause, it can make no difference that Baker was in treaty for another claim,, and not for Craig’s claim. The consequence to Baker was the same ; and the same principles will govern in the case of distinct original titles, and claims set up under the same title — See Ward vs. Kenton, &⅜. Pr. Dec. 9.
    That Craig received no benefit from the transaction setup in the amended bill, is no objection to Baker’s right to redress. Raker sustained a loss by it; and a loss to one, is as sufficient consideration, on which to bottom, a contract, as a gain to another. If one man will quietly sit by and see another lay out his money, and do not warn him of any equity he has to the property ; he shall never be permitted to set up his claim, to defeat that purchase which he ought to have prevented. This is a much stronger case. Here Craig was applied to, and declared he would not contend for the land under Tabb’s entry. A reliance was placed on his knowlege ; experience in land business ; and his candour. On the faith of Craig’s declaration, Baker proceeded to purchase, and that without recourse.
    Theloss sustained, isto be attributed to Craig. It is, therefore, more equitable that he should bear the loss eccasionedbyhis own erroneous opinion, than that Baker should, who was deceived and misled by that opinion. He cited and relied upon the following authorities, in the course of this argument: 1 Fonb. Eq. 151, note ??. —1 Vern. 136-7 — 2 Vern. 150, 151, 370, 239, 240— 1 Vez. 95.
      
    
    
      April 28th.
    
    
      
      Af>fent Judge Tsimbie.
    
    
      
       A point fimilar to the foregoing, in fome of its leading features, arofe in the c2Íe Wiggins vs. Dale and Stockton ; and received a like determination from the Maion circuit court, fome years before ; and that decifion was affirmed by this court, at their fpring term 1806.
    
    
      
      
         A£b of 1796-7. 37. 1 Brad. 243,
    
    
      
      ¿) Pr¿ Dec, 231.
    
    
      
      ¿) Ibid 274.
    
    
      
      ¿) Ante 7c.
    
    
      
       The reporter did not hear the argumento? Alhny in reply, delivered oa the 25th of ApriJ.
    
   Edwards, Ch. J.

delivered the following opinion of the court:

After staling the grounds upon -which the inferior court founded their judgment, it contained the following observation : “ Attention to dates, will readily correct the error into which that court was probably led by the proof of the notoriety of Scott’s spring, long,after the date of the entry.”

It then noticed the depositions, as above stated, which speak of Scott’s spring, prior to the date of Lockhart’s entry ; and observed, that “ Feeble as this proof is, as to the notoriety of Scott’s spring, at that period ; it is rendered more so, by the testimony” of William Henry, and Henry Lee, which it recited.

It proceeded — After this period (the time of making the survey, in 1785) Scott’s spripg seems to have been notorious, or in other words, knoWn to the generality' of those who were conversant in that quarter of the country.

Without deciding whether Limestone, or Haw creek, were or were not notorious, in 1780 ; or whether Scott’s spring has been identified by the evidence in the record ; it is sufficient to say, that the calls “ on Haw creek, a branch of the Ohio,” and “ about 8 or 9 miles from the mouth of Limestone,” open a wide field for inquiry after Scott’s spring. Nothing but a general knowledge, at the date of the entry, amongst those who were acquainted in that quarter of the country', as to the precise situation ; and of some individual characteristic ofthe spring; could have supported the claim of Lockhart. The cabin is not mentioned in the location, but is a circumstance connected with, and accounting for the name of the spring. If the spring, then, had acquired notoriety by the proper name given to it, this circumstance would have been a good object of description, provided it had circulated as extensively as the name. But this record furnishes no evidence that the natne, or the cause, had circulated generally in 1780.

When Jordan was there, in ■1775, with M’Connell and others, the cabin was not then seen. The spring had no name until 1776, These were, therefore, things which they could not circulate, unless they were after-wards informed of them. There is no evidence that they were so informed, except Jordan, who did not get his information until he was there with Scott, in 1780 ; which he says was the first tinte he had heard it called Scott’s spring. Unless we presume, that when Jordan says he was there with Scott, in 1780, it was before the 20th of April in that year, there is nothing which au-thorises us to say, that any individual ever was at the %pring, after Kenton named it, in 1776, (upon Elfchorn) and before the date of Lockhart’s entry. Kenton says ljte called it Scott’s spring ; but to whom, when., or where, he does not inform us ; but he tells us where he did not do it; and by very strong implication also, when, he did not ; for he says he never was at the spring with any, person, after he sold the improvement, until the fall of the year 1784 ; and then, or in the year following, he thinks he heard the settlers call it Scott’s spring. Kenton was the only person in the country, from 1776 to 1780, who knew where the cabin was, and what spring he called Scott’s. If he communicated this knowledge to others, who had found the spring by his direction, the complainant ought to have made it out by evidence. So he ought to have made it appear, if Jordan was there before April 20th 1780. The silence of Kenton, and Jordan on this subject, and the silence of all the other witnesses as to any notoriety of Scott’s spring until 1784-5, is too great an hiatus of evidence, to be filled by implication.

The testimony forbids tile assertion that Scott’s spring had acquired such notoriety, as that a holder of a warrant could, by any reasonable search, find or distinguish Scott’s spring, in the year 1780, by the description in the entry, or by inquiry in pais.

Wherefore, the entry of Lockhart must be illegal and void.

The subject in the amended bill, this court cannot pass by in silence, although the decree, in that respect, was in favor of the appellant.

After the cause was set for trial, some new ground of equity is caught from depositions, and afterwards am-phfied. This case, in its full dress, is a striking exam-pie to illustrate the experience and policy, which called forth the statute against frauds and perjuries. The law has wisely required a solemnity of evidence, in certain cases, to protect those who may be accused of breach of good faith, against the frauds of their, accusers. However some judges may have thovight themselves ■justified (in cases reported) to overleap the bounds of evidence prescribed in those cases, and in their eagerness to punish the supposed fraud Of the one party, run the risk of aiding the fraud of the other ; yet no precedent gives countenance to an application to a court of equity, upon the groünd taken by the amended bill.

It is no more than that Baker, knowing of the distinct adverse claim, applied to Craig, to know his opinion of the legal pretensions of the respective claims, separately derived from the commonwealth; And for this compliment to Craig’s judgment and candour, Baker now asks the land;

Baker being apprised of the adverse claim, Craig Was under no moral obligation to give his opinion. But if he gave an answer, it was a voluntary courtesy, which could not uphold art assumpsit , much less give a right to demand a release of the legál estate in question, Men are bound to state facts truly, when they speak of them ; and are bound, in many instances, to disclose them, or be barred of a right growing out of them; but ho man is bound by an admission of law, or a mistake of the law, in his judgmeht upon his own right; much less by a mistake of the legality of his adversary’s claim;

If the principle was once admitted; that a better estate could be defeated, released,, or extinguishedby a mistake of opinion ; or confession of law ; or the expressions of an intention by the holder, not to prosecute the right; made by parol; irt the common pursuits of life 5 wé might shortly expect á description of bills in chancey, before unknown; and which might be styled; emphatically; bills to perpetuate “ The mistakes of the night,” and the perjury of witnesses.

This coui-t is Of Opinioh, there is no equity iñ the amended bill; and that the decree of the circuit court, in that respect, is not erroneous ; but that there is error in so much of the said decree as gives validity to the aforesaid entry of Lockhart.-Decree reversed. 
      
      Hob.ioS; a stran. 708» N"1-
     
      
       There was cantradlftory fweiririg in the depofitions taken in the caufe,
     
      
      
         See the comedy “ She (loops to conquer, or the miftakes of the night.”
     