
    The PROPRIETORS of the Kennebec Purchase v. LOWELL & al.
    In a writ of entry, if the ¡and be described by the number of the lot as marked on a certain existing plan, it is sufficient, whether the plan be matter of record or not.
    The line of the Plymouth patent, as run and marked by Ballard in 1795, ia conclusive upon the' Commonwealth, and upon the patentees, and upon all persons claiming under them. ■
    This was a writ of entry, in which the demandants counted on their own seisin and a disseisin hy the tenant, of “'a certain “ lot of land in Palermo in said county, being lot numbered 124 “ according to a plan made by Broadstre&t Wiggin surveyor^ “ containing one hundred and seven acres, more or less,”— without any other description of the premises demanded.
    ■ At the trial, wliich was upon the general issue, the demand-ants proved á certain lot, called the tenants’, to be in Palermo,’ and offered to exhibit to the jury the plan made by Wiggin, tq prove the number and extent of the lot; — they representing it tobe the proprietors’ plan, and to have been made by their order. Tq this evidence the tenants objected as illegal, — but the Judge overruled the objection, and permitted the plan to be exhibited to the jury.
    The demandants then read, in support of their title, a deed from the Commonwealth of Massachusetts to them, dated February 18, 1789. -They also read the deposition of Ephraim, Ballard, who acted as a surveyor of the Plymouth patent under a commission signed by the committee for the sale of eastern lands, and by the-agent for the plaintiffs, dated June 26, 1789v, instructing' him to begin at the head of the Waldo patent, at the distance of fifteen miles from Kennebec river, and thence running divers courses therein mentioned, to terminate at a line drawn northeast and southwést across Androscoggin river at the distance of five-miles- northwest from the twenty mile falls ; and to make return of his doings as soon as might be to the committee for the sale of eastern lands; and to the clerk of the proprietors. He testified that in the autumn of 1789, in pursuance of those instructions, he surveyed and marked the line therein mentioned ; and that in August or September 1795 he received another joint commission from the Commonwealth of Massachusetts, the proprietors of the Kennebec purchase, and the late Gen. Knox as representative of the Waldo claim, in* structing him to survey the dividing line between the Plymouth and the Waldo patents, and the unappropriated lands of the Commonwealth situated between them; — in pursuance of which he proceeded to execute the service assigned him, and specified his doings; but before the work was completed he was inter* cepted by armed men, in disguise, and compelled, by threats of' instant death, to'desist from farther proceedings; that they'forcibly took from him -hip instruments, and all his papers except his field book ; of which violence he gave an account to the government.
    It was farther proved that in 1806 Charles Turner, Esq. was empowered by another commission to examine Ballarji’-s line and if found correct, to finish the survey of the easterly line of the Plymouth claim; — that one of the trustees of Lincoln academy attended with him at the survey; — that bis admeasurements very nearly coincided with Ballard’s, varying in one instance only two thirds of a chain in 15 miles ; — that he came out on the south side of the lot demanded, thus including it within the lands of the demandants; — and that he thereupon extended the line commenced by Ballard- southward, as the easterly line of the Plymouth patent.
    It was also proved that Wiggin, in makipg his survey, fronted his lots on Ballard’s line 5 but of the number of the lot demanded. and of the others, there was no evidence except the plan.
    On the part of the tenants two witnesses testified to admeasurements made by themselves from Kennebec river easiwardly, tending to shew that Ballard’s admeasurement of fifteen miles, was too large; but the course they ran from th© river was. uncertain.
    It was admitted that in 1.806 the Lincoln academy received a grant from the Commonwealth, of the land bounded on the Plymouth patent, and the tenants offered in evidence a deed of the demanded premises from the academy to themselves.
    The tenants contended that it ought to be left to the jury, upon this evidence, to determine whether the demanded prem-. Uses were within the limits of the Plymouth patent-but tho. judge instructed the jury that the line run by Ballard was confelusive on the tenants, and they thereupon returned a verdict for the demandants. And it was agreed that if the direction of the Judge on the foregoing facts, so far as they were competent evidence, and the admission of the plan, were fight, judgment should be entered on the verdict, — otherwise, it should be set aside and a new trial be granted.
    The argument was had at the last term in this county by Ri Williams, for the demandants, and Orr and Stebbins, for the tenants.
    Stebbins, for the tenants,
    argued, — 1st. That the liné run by Ballard was not conclusive on the parties; — and 2d. That the plan made by Wiggin ought not to have been admitted in evidence to the jury.
    As to the first point;- — it does not appear by Ballard’s deposition what lines he ran, nor that he completed any. And after he bad surveyed the whole, he might have found it necessary-to have altered some part of it.; Nor was any person bound by what he or Turner did; — hot the Commonwealth, nor the Kennebec proprietors, for Ballard made no report to them of his doings in 1795 — nor the trustees of Lincoln academy, for Turner gave them no notice of his intended survey in 1806.
    As to the plan ; — the description in the writ is too loose and uncertain. The plan, to becomé part of a deed, ought to be a public document, to which all the citizens may have access. But this was a mere private paper, in the pockets of the demandants. If judgment be entered on the verdict, and a writ of possession issue, the sheriff could not find the land by the description given. If the disseisor must shew distinctly the extent of his possession, the demandant, by the same reason, must shew as clearly the extent of his claim. By the common law and by the statute, the tenant has a right to plead several pleas,' which will be taken away unless the land be described to him,' with certainty. Any other rule places him wholly at the mercy of the demandant. 2 Selw. N. P. 624 and authorities there cited. 5 Com. Dig, 32. Bottv, Burnell, 11 Mass. 165.
    
      
      R. Williams, for the demandants.
    Whether the description be certain or not, this is not the, time to inquire.' The tenants should either have demurred, or moved in arrest of judgment. .Under the issue of nul diseisin that question is not open. Nor is here any hardship on the tenants. They may always defend their own land by metes and bounds, .and disclaim all other; and this, be the description ih the writ' what it may.
    .. The true Question is — whether a writ of entry lies for “ a lot “of land, No. 124, containing 107 acres;1’ — and we contend that it does. Our lots of land very soon acquire a reputation by their numbers; by-which they are as well known as lands in England are by the names mentioned in- the books. And the- uniform practice agrees with this mode’ of designation, and reference to a plan. 2 Selw. JV. P. 729. 2 Bac. AM.-- 419<¡ Ejectment D. 2. in notisi hwpey’s ' Practice, 578, 582. The description needs not to be so .certain as that the sheriff can find the land — the demandant must shew it at his peril.
    And the plan was rightly admitted. This was not a question of boundaries, but of identity of lots. There was no doubt made as to the genuineness of the plan; — and supposing it to be mere chalk, yet it was sufficient for the purpose it was used for. ■
    As to the conclusiveness of the line run by Ballard; — this depends on the question whether it is competent for two ad; joining proprietors to agree on a dividing line. For this location was a matter of compromise between the government and the Plymouth company, and they alone were interested in its Jobation. It was binding on them as far as it was run, and no other persons have a right-to contest it. No return was required of the surveyor by the second commission in 1795, — -of which his deposition was the best evidence, the original being taken from him and destroyed.
    But whether conclusive, or not, — there was a line de facto, made in 1795 ; and it was a limit well known and defined, and long acquiesced in. By this limit the trustees of Lincoln academy were bounded, by the conveyance- to them in 1806; and as to them it has the force of a known monument, beyond which they and the tenants, being their grantees, cannot pass. Jack
      
      son v. Williams, 2 Johns. 297. .3 Johns. 8. 11 Johns. 123. Jackson v. Ogden, 7 Johns. 238. Makepeace v. Bancroft, 12 Mass. •169. Peake's Ev. 27.
    
      Orr, in reply.
    Had Ballard completed the execution of his commission, on had the government expressly accepted his doings as far as they went, it would have been conclusive. But here was neither. And the acquiescence of the government is not to be inferred from its silence, as in the case of a private person.
    As to the plan ; — it was incompetent evidence. It does not appear that it was taken by Wiggin, nor that he made a survey, r.or that the lot in controversy and that marked 124 on the plan aré the same. All this ivas presumed, and therefore wrong. • , .The only certainty in the description is “No. 124,” referring to a plan; — and the action is in..tort. Nowin a personal action of trespass dr trover for goods, a reference to a schedule annexed is bad and judgment may be arrestee], — Kinder ¶. Shaw al. 2 Mass. 398 — a fortiori here; in a real áction ;— for what better is the plan referred-to, than a schedule annexed ? If it be otherwise, a party may make his plan after commencing his suit, and prove his case by a paper of his own fabrication.
   Mellen C. J.

delivered the opinion of the Court as follows.

, The counsel for the tenant relies cfn two objections to the verdict.

1. That the description of the premises was too loose and un? certain; depending on, and referring to a plan of a private nature, and which was improperly admitted in evidence in aid and explanation of the description. . • .

2. That the opinion and instruction of the Judge, to the jury as to the conclusiveness of Ballard's line was incorrect.

. As to tire first point. — It may be a qüestion whether the plan was a necessary piece of evidence'; and if not necessary, its admission, whether proper or not, would be no ground for a new trial. — The more correct and usual mode of taking advantage of the alleged uncertainty would seem to be either by demurrer or motion in arrest of judgment. Ward v. Harris, 2 Bos. & Pul. 265. 1 East. 441. 8 East. 357. But the tenant has pleaded the general issue and thereby admitted himself in-possession of the premises demanded, whatever and wherever they are situate, and put the title only in issue. Higly v. Price, 5 Mass 344. Brown v. Killeran, 4 Mass. 443. Pray v. Pierce, 7 Mass. 381. Several of the cases cited by the demandant’s counsel establish the principle that the demandant must cause his writ of possession to be executed at bis peril. If he should take possession of lands not recovered by the judgment, he would be a trespasser. If he can find no land answering the description in the writ, judgment, and habere facias, he cannot cause the precept to be executed with any safety; and of course the tenant in the action can never be distux-bed or injured by the judgment.

The cases touching the question of certainty, in declarations in the description of premises demanded, and property taken- away or injured, arc somewhat confused an¿ contradictory. In Rex v. Horne, Cowp. 682. Ld. C. J. De Grey says ;— “ we have no precise idea of the signification, of the word-“ cer- “ lainty,” which is as indefinite in itself as- any word that can “ be used.” In Ward v. Harris, 2 Bos. & Pul. 265, the plaintiff declared upon the sale of a certain house for a certain quantity of certain oil to be delivered to the defendant within a certain time. — Even this loose declaration was holden good after verdict, on motion in arrest of judgment. In Doe v. Plowman, 1 East. 441, the plaintiff in ejectment demanded two dwelling-houses and two tenements. — After verdict for the plaintiff judgment was arrested. In Doe v. Denton, 1 D. & E. 11, ejectment for a messuage and tenement was held good after verdict.. Coltingham v. King, 1 Burr. 621. Lord Mansfield says, “ The objection is the uncertainty of the claim or description of the premises. — It is after vei’dict; — the title has been tided by “ jury; — evidence has been- given to them on which they have “ found for the plaintiff.” The description was much more general than in the present case. The judgment was unanimously affxi’med the Court observing that after verdict, the description must be intended to be sufficient. See the sevei’ai cases cited in. the note to Doe v. Plowman, 1 East. 441, agi-ecing with, and opposing.the case in 1 Burr. 621. The description in the pi’esent case is at least as certain as that cited from lmpcfs Practice. That was “ a certain messuage demised by J. S. to J. DP who must have been either the demandant himself, or a stranger; and in either case, there was no reference to any public record or document for the tenant’s information ; though it might be a guide to the sheriff in executing the writ of possession. But if a reference to Wiggin's plan, for the number, size and situation of the lot, be necessary to render the description sufficient, of what importance can it be whether the plan has been accepted by the proprietors, or placed on their records, or on any other record ? Nothing is more common than in real' actions to demand land by no other description than as a lot of a certain number on a certain plan. As, for instance, M'Keck'nie’s pjan, Winslow’s plan, or Jones' plan. This has always been deemed sufficient; and yet it never appeared on the face of the declaration whether the plan was accepted and recorded, or not. The description of the premises demanded in this action was intelligible to the tenant; his plea admits him to be in possession of lot No. 121, on Wiggin's plan, containing 107 acres. The parties, therefore, agree as to the lot of land demanded, and only differ upon the question of title. As to the admission of the plan in evidence to the jury, we perceive no incorrectness in the decision of the Judge. The report states that the plan offered was Wiggin's plan; and that it'was proved that Wiggin, in making his survey, fronted his lots upon the Ballard line; which is one of the boundary lines of one part of the tract which the demandants own. The plan and the survey thus taken in connection, must both be considered as made by him and for their use.

It is therefore sufficiently shewn to be thi demandants’ plan; and seems to be legal proof as much as any of their plans which have been formally accepted. In this action they claim an interest in it, and rights under it, and thereby sanction it. We therefore are of opinion that the tenant has failed in maintaining hisjfo’si objection.

As to the second point, the conclusiveness of Ballard's line, it may be observed that in the year 1795, when it was run, no persons had any interest in the lands, but the Plymouth Company on one side, and the Commonwealth on the other. The line was pot completed, on account of the violence he met with from the settlers, and the loss of most of his papers. But he informed the government of the.progress he had made. In 1806;2Wnef was employed to complete the - survey, if on examination, he found BallardPs line correct. He'did examine.it, and so find it; and began to extend his own line fropi it southerly, as the easterly line of .the patent. According to the line thus run by Ballard and continued by Turner, the land demanded is within the company’s'claim. We hear of no objection to this line on the part of the Commonwealth ; and the -proprietors, who are the demandants in this action, are satisfied with it, and claim according to it. -Here is evidence of an acquiescence in the line ás the true one, and even of its sanction by the parties in interest at the time. The deed from the Commonwealth’s com»mittee bounds the academy land, on one side, -on the Plymouth-claim, and this-deed was given years after Ballard^s line was-run, which the .Commonwealth afterwards recognized, in the manner above -mentioned, as "the .true boundary line of that claim; The cases cited from Johnsonh reports by the demand-ants’ counsel to shew the. effect of lines thus -established, and their conclusivenessj-’are strong and direct. . -

On the whole, when we view all the. facts in the case before us, and the manner in which the line in dispute wras run and established by two different surveyors, we have' no hesitation in Saying that upon -these facts in the case, as reported by the Judge, the line must be considered so established as to be con«elusive. We are satisfied with the opinion of the Judge who tried -.the cause, with respect to thi's question, and perceive -nc1’reason for setting aside the verdict and granting a new trial.— ■ Accordingly there must be . :

Judgment m (he verdict„  