
    *Miller v. Page and Others.
    [April, 1806.]
    Entry of Land — Uncertain—-Effect—Case at Bar. — An entry in these words, J. M. enters 1000 acres, ‘-between the lines of H. 0. deceased, on both sides of Hatcher’s creek, beginning on the same,” is void for uncertainty.
    On the ISth August, 1791, John Miller, the plaintiff, entered, by virtue of a warrant, for 1000 acres of the land in question, in the surveyor’s office of Buckingham county ; and on the 25th July, 1796, by virtue of another warrant, he entered in the same office for 300 acres more, the residue of the land in question.
    The first entry is in these words : “Buckingham county, sc’t. August 15, 1791. No. 61. John Miller, assignee, &c. by warrant, &c. enters 1000 acres of the same, between the lines of Henry Cary, deceased, on both sides of Hatcher’s creek, beginning on the same. ”
    The second entry is in these words: “ Buckingham county, sc’t. July 25, 1796. No. 253. John Miller, assignee, &c. by warrant, &c. enters 300 acres of the same, between the lines of Henry Cary, deceased, and a former location made by the said John Miller for 1000 acres of land, when surveyed, No. 61, between the lines aforesaid, viz : Beginning at the corner near Buckingham branch, a corner to a line of the said Henry Cary, for 1007 poles, thence along the lines of a survey made for the said Henry Cary for 3942 acres of land, so far as will include the quantity of 300 acres between the said survey of 3942 acres and the said Miller’s location for 1000 acres, No. 61, and the said line of 1007 poles.”
    In conformity with these entries a survey was made of both locations on the 31st October, 1796, a certificate of which with a plat was duly returned to the register’s office.
    A caveat against the grant of a patent for the land thus surveyed was filed, and stated in substance the following reasons :
    *1. That there was in fact but one survey of the two entries.
    2. That the entries were too vague and indefinite.
    3. That the warrants mentioned in the surveys did not give said Miller a right to make entries, and to procure surveys and patents.
    4. That the lands in question were not waste and unappropriated, but that the caveators and those under whom they claim, had been in possession and seisin ever since the year 1738, and paid quit-rents, taxes, &c. thereon.
    
      5. That the lands in question had been patented to Henry Cary, under whom the caveators claim.
    6. That Carter Page, one of the caveators, had made a.n, entry prior to either of the said Miller’s entries.
    The jury impannelled in this case found,
    1. That a patent issued to Henry Cary, dated 20th July, 1738, including two different tracts, containing together 17,000 acres: of which the courses, patent, and survey are found at large.
    2. That in July 1740, John Gresham obtained a patent for 162 acres, between the lines of Cary’s patent, one line of which patent of said Gresham, bounds the land in dispute : which land is bounded by the lines of Cary’s patent on all sides but one, on which it is bounded by the line of Gresham’s patent: which line is not one of the lines of the inclusive patent to Cary.
    3. That Henry Cary purchased Gresham’s tract.
    4. That Miller’s entries were as above stated.
    5. That surveys were made of Miller’s entries agreeably to law, and duly returned to the register’s office, of which surveys a copy is found.
    6. That in May 1748, the said Henry Cary departed this life, after having duly made and published his last will and testament, which with the probate thereof is found at large. ,
    7. That Archibald Cary, son, heir and devisee of the said Henry Cary, immediately after the death of the said 30*Henry, by virtue of the residuary clause of the said will, entered upon and took possession of the estate thereby devised to him, and remained possessed until his death..
    8. That in the year 1787, the said Archibald Cary departed this life, after having duly made and published his last will and testament, which with the codicils thereto annexed and the probate thereof they find at large.
    9. That the caveators claiming under the said A. Cary’s will, have been in possession of the land in dispute ever since said A. Cary’s death.
    10. That the said Henry Cary in his lifetime, and the said Archibald Cary during his life, paid all taxes and dues to the government of Virginia on the lands chargeable to them, and the caveators, since the death of the said Archibald, have done the same.
    11. That in 1778, the commissioners of the land tax, in making their estimate of the lands with which the said A. Cary was chargeable to the commonwealth, went on the lands in controversy, and considered the same as belonging to him.
    12. That Henry and Archibald Cary were both possessed of a considerable personal estate on their plantations in Buckingham county, adjoining the lands in controversy.
    13. That Carter Page, one of the caveators, by virtue of two land warrants dated 27th June, 1796, for 600 acres of land each, made an entry with the surveyor of Buckingham on the 30th June, 1796, for 1200 acres of the land in question, which entry is in these words: “ No. 252, June 30,1796, Carter Page by two warrants for 600 acres of land each, No. 1949 and No. 1950, and dated the 27th day of this month, enters 1200 acres, beginning and bounded as follows, viz: Beginning at a red oak on the south side of Hatcher’s creek, corner to a line of 1007 poles in Henry Cary’s patent for 17,000 acres, running with the said line N. 30, E. 1007 poles to pointers; thence according to Henry Cary’s former survey of 3942 acres W. 16, N. 80 poles to a white oak, on Mayo’s branch, now called Buckingham ^branch, S. 35, W- 230 poles to a white oak ; thence W. 24, S. 260 poles to a hickory, W. 15, N. 73 poles to a white oak ; thence W. 31, N. 120 poles to a black oak ; thence W. 3, N. 88 poles to a white oak; thence S. 45, W. 38 poles to a white oak; thence leaving the lines of the old survey mentioned above, and running on new lines agreeable to the said patent S. 27, B. 225 poles to a chesnut oak in the low grounds of Hatcher’s creek ; thence S. 45, B. 130 poles, crossing Hatcher’s creek to a white oak ; thence S. 10, W. 151 poles to a pine, S. 55, W. 140 poles to a pine ; thence new lines to include the 1200 acres to the beginning.”
    14. That the said Carter Page, on the 12th November, 1796, made another entry, by virtue of a warrant, with the same surveyor in these words, “Carter Page, assignee on a land office treasury warrant, No. 1923, for 400 acres, dated 26th May, 1796, enters 400 acres of land, beginning on the south side of Hatcher’s creek, in the line of the north east-wardly side of a tract of 162 acres formerly patented to John Gresham, and at present claimed by Samuel and George Anderson, running with the said line N. 50, W. 120 poles, to where it cornered at a white oak ; thence running with and binding on the lines of a tract of land patented to Henry Cary, now deceased, N. 45, W. 130 poles to a chesnut oak; thence N. 27, W 225 poles to a white oak ; thence N. 45, B. 38 poles to a white oak ; thence S. 87, E. 88 poles to a black oak; thence S. 59, B. 120 poles to white oak; thence S. 75, E. 73 poles to a hickory: It is intended to run and bind on the said lines, and to make whatever allowance for the variation of the magnetic needle may be found necessary in order to follow them : Thence from the last mentioned hickory in a straight line to the beginningAnd that the said Carter Page regularly surveyed the said lands, to which survey the jury refer as marked C.
    15. That the lines of Henry Cary’s inclusive patent cross Hatcher’s creek six times, and that there are two corners near the said creek.
    *16. That Carter Page made his entry and beginning of the survey of the first entry on a line within patented land belonging to Samuel Anderson, with his consent, beginning at C. in his said survey and running on the said Anderson’s line to the land proposed to be surveyed.
    17. That William Mayo, surveyor of Gooch-land, surveyed for Henry Cary in that part of the county now called Buckingham, on the 26th and 27th April, 1736, 1200 acres of land in three surveys of 400 acres each, which is the land in. contest: on which survey George Carrington, the succeeding surveyor, afterwards wrote these words, “Henry Cary’s old Buckingham tract.”
    18. That the said Henry Cary entered on the said lands on the said 26th and 27th April, 1736, and that those claiming under him cleared and cultivated a part of the same land 48 years ago, and continued in possession thereof until this time.
    19. That the lands in question, on the death of Henry Cary, passed to his devisee A. Cary, who was thereof peaceably possessed until his death.
    The district court gave judgment in favour of the caveators: And Miller a ppealed to the court of appeals.
    M’Rae, for the appellant.
    The court cannot presume a patent; for it has been decided, that a right to lands could not be acquired by settlement, before the year 1779 ; and every actual entry and patent are to be found in the public archives. 1 Wash. 231. The survey of Mayo is nothing, as it does not appear to have been made for the purpose of acquiring a title : But, if it had, it could not be taken notice of, as it is not alleged in the caveat. Miller’s entry is certain enough; for there is a reasonable precision in the description ; and that is sufficient. 1 Call, 208 ; 1 Cranch, 92. Page’s entry began upon patented land, and is therefore void. Pleas. Edi. Raws, 344.
    33*Creed Taylor, Call, Wickham and Randolph, contra.
    The survey by Mayo was in full force under the continuing acts of assembly ; and therefore Miller’s entries are void. But they are also void for uncertainty, as the location has neither beginning, side lines, nor end, although the locator had abundant marks to commence at: for Hatcher’s creek crosses H. Cary’s line six times, and had two corners on it, from any one of which he might have begun. It is not like 'the case of Pield v. Culbreath, 2 Call, 547; because there the entry was for all the vacant land between certain lines; and therefore no surplus was left to create uncertainty. Page’s entries are good; for they are sufficiently precise; and it is no objection, that they began upon patented land; because they only operated on those that were ungranted, and therefore did no injury to the former patentee. Wolcott v. Swan, 2 Call, 298; Currie v. Martin, 3 Call, 28. Entries on the frontier ought not to regulate this; because there the locator is exposed to dangers, which prevent precision, as he is in the midst of alarms, and obliged to proceed with haste. Besides the want of known objects in a wilderness creates difficulties which do not exist in a settled country. Hughes’s Kentucky Rep. 61. It is questionable whether the commonwealth could have entered after twenty years possession, as the language of the act of limitations is general; and if so, the individual claiming under her could not. But be that as it may, no entry against such a possession could have been made without an office found. 3 Black. Com. 257, 259. A patent to H. Cary ought to be presumed, 12 Co. 4, 5; Cowp. 109, 115: And this is rendered stronger by the act of 1796; which evidently looked to a presumption of rights, upon the probability that patents had been obtained by those who had had long possession. Pleas. Edi. Laws, 378.
    Hay, in reply.
    The caveat, being a remedy afforded by the statute, ought to be strictly pursued: And, as in this case, it states that Page had made entries prior to those of *Miller, none but those which were in fact prior can be regarded. If a patent could have been presumed, it belonged to the jury, and not to the court, to made it. But it was not to be presumed, as all patents are, by law, directed to be recorded; and therefore if it had ever existed, it might have been found among the public registers. Besides it does not appear that Cary ever paid the taxes, which lessens the probability that his possession was by title. The cases cited by Mr. M’Rae prove that Miller’s entry was. certain enough; and the usual practice of the country is to make locations, without regard to the strict letter of the law.' Page’s lines are impossible; and therefore his entry is not good. Mayo’s survey does not satisfy the continuing acts; which related to surveys made upon authorized entries, and not to such as were made without any colour of right.
    Cur. adv. vult.
    
      
      Lands — Entry—Certainty.—Upon tne question of the certainty of land entries, the principal case is cited in foot-note to Hunton v. Hall, 1 Gall 206 ; footnote to Field v. Culbreath, 2 Call 547; foot-note to Currie v. Martin, 3 Call 28; foot-note to Harper v. Baugh, 9 Gratt. 509 ; Depew v. Howard, 1 Munf. 301; McNeel v. Herold, 11 Gratt. 314.
    
   TUCKER, Judge.

Carter Page entered a caveat in June 1797, against Millér in the district court for 1300 acres of land lying in Buckingham county, and assigned six reasons against the emanation of a patent. I shall pass over the first, and proceed to the second, reason assigned, viz : ‘ ‘Because Miller’s entries are too vague, indefinite, and uncertain; and are not made with the precision required by law.”

The law requires, that every person desirous of locating a land warrant on any particular waste and unappropriated lands, shall lodge the warrant with the chief surveyor of the county, and direct the location thereof so especially and precisely, as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum, (1779, ch. 3). The meaning of the legislature evidently appears, from the terms of this act, to have been, to give every purchaser of a land warrant an equal right to locate the same to the best advantage, without difficulty, and without interfering with each other, giving to the first applicant the preference: and, by a subsequent provision, giving to each subsequent applicant the right of inspecting any prior entry supposed to be *made for the same lands ‘by' any other person. The object of which provision evidently was to enable each subsequent applicant to make locations so special and precise with reference to former locations as that any future applicant might pursue the same course as to his; and thereby interfering claims and numberless law suits be prevented. That such was the intention of the law, cannot, I think, be doubted, if we consider either the directing part, that the location shall be made specially and precisely ; or the reason assigned for such precision, that others might be enabled to locate, with certainty, the adjacent residuum. These last words shew, that the legislature contemplated the probability that, in the rich and fertile spots particularly, locations would be made contiguous to each other. It would, therefore, be inconsistent with the spirit of the law to suppose, that it should countenance such vague and uncertain locations as might deter others from making contiguous entries on the adjacent residuum, from the uncertainty of the course which the first locator might think proper to pursue in making his survey. If a locator, desirous of entering for lands lying upon a narrow creek, should designate a particular tree, or rock, as the beginning of his location for a thousand acres of land, without any other description, how could any person desirous of locating the adjacent residuum, proceed to make his entry? The former might extend the base of his survey, east, west, north or south, or to any of the intermediate points; and until he should think proper to make his survey, no other locator could, with any safety, or certainty, approach the spot. I therefore concur, not only in the opinion delivered in Hall v. Hunter, 1 Call, 209, that locators are to be held to a reasonable degree of strictness in their entries; since without, infinite confusion and difficulty, as well as delay, must ensue to the prevention of the execution of the law; which certainly had respect to the settlement and improvement of the country, as well as to any revenue to be derived from so trifling a price for the lands; but even carry my interpretation of the law still further, as appears to have been *done in the case of Wilson v. Mason, I Cranch, 99; and concur with the supreme court of the United States in thinking, that “from the circumstances under which the act for establishing the land office passed, as well as from the expressions of the act, it is apparent that the entry was intended to give complete notice to other purchasers, that the land located was already appropriated.”

On the 15th of August, 1791, John Milter, the appellant, made an entry with the surveyor of Buckingham county, for “1000 acres of land, between the lines of Henry Cary deceased, on both sides of Hatcher’s creek, beginning on the same.”

The jury find, that the lines of Henry Cary’s inclusive patented land, cross Hatcher’s creek six times, and that there are two corners near the creek: and from an inspection of the plat of survey filed in this cause, it appears that it is more than a mile and a half from the spot where one of Henry Cary’s lines crosses Hatcher’s creek in one place to where it crosses it in another.

It was asked by the caveator’s counsel, at which of these spots, or at which of the four intermediate spots, where the lines of Henry Cary cross the creek, did the locator intend to fix his beginning? I cannot pretend to answer the question for him; nor do I consider it as answered by his counsel, who said there were but few spots on Hatcher’s creek, where the beginning is called for by the entry, where he might have made his beginning. The verdict shews there might have been twelve different spots; and the plat shews that the distance between the two most remote is at least a mile and a half, as I have before stated.

But this want of precision is supposed to be helped by the decision of this court in the case of Field v. Culbreath, 2 Call, 547. In that case, however, the entry was for all the vacant lands between the lines described: whereas, here it is for a thousand acres; and there might have been ten times that quantity. Miller’s own survey shews there were 1300 acres within those lines. Now, with what certainty *could any person desirous of entering for the adjacent residuum of 300 acres, have made his entry? Until the survey was actually made, which was not done for more than five years after this entry, no person could know in what part of the 1300 acres, Miller’s 1000 acres would be laid off, or the 300 acres be left. Consequently, this case differs from that of Field v. Culbreath, most essentially. Nor can I find, either in adjudged cases in our country, or in the law, any principle which will justify the suspension of another’s right to enter for these vacant lands, until Mr. Miller should have determined his will, where to fix the beginning and the course of his location. For, although the beginning was known, yet unless it were also known what course was to be run from that beginning, no holder of a land warrant could be able with certainty, to locate the same on the adjacent residuum. Neither do I know of any mdans, (except by making a subsequent entrj', and proceeding to survey the lands and obtain a patent,) by which the first locator could be compelled to make and return his survey. For, although the law originally allowed twelve months only, within which it must have been done, yet it is well known that, except for one or two very short periods, the time has been uniformly prolonged. So that the first entries made under the act might have been kept in force, without any survey, down to this time, unless the law had permitted subsequent entries to be made, where the first were not sufficient to give complete notice that the land was appropriated. The common law, we are told, abhors uncertainty; and this statute appears to me to be framed in the same spirit. Miller’s entry of the 15th of August, 1791, was, therefore, I conceive, as to all persons holding land warrants, and desirous of locating the same, void on account of its uncertainty.

On the 30th of June, 1791, previous to any survey made by Miller, Carter Page made his entry for 1200 acres of land, designating the beginning; the lines of Henry Cary’s former patent; the distance and termination of those lines, with their several courses, as described in Cary’s patent. *It is objected, that these are now impossible lines, on account of the variations of the magnetic needle, since the year 1736, the date of Craig’s patent. It was well observed, by the caveator’s counsel, that the reference is to the lines, i. e., the marked lines, and not merely to magnetic courses. It calls for particular objects at particular spots; and these lines appear to be his own former boundary, with which he may. be presumed to be sufficiently acquainted, and in running which he was in no danger of being a trespasser. The other objection was also satisfactorily answered, viz: That his beginning was within another man’s lands. Be it so; but the jury have found that he made the same with the consent of the owner of the land; and, if he choose to waive the trespass, no other person has a right to complain. Besides, if it were a corner to his own lines, as well as Anderson’s, he had an indubitable right to begin his entry there.

On the 25th of July following, Miller made his second entry, for 300 acres, between the lines of Henrj Cary, and a former location made by himself, as before, for 1000 acres, when surveyed between the lines aforesaid, viz: beginning at the corner near Buckingham branch, &c. ; thence along the lines of said Henry Cary, so far as will include the quantity of 300 acres, between Henry Cary’s survey, and the said Miller’s former location, and the line for 1007 poles. The plat of the survey of this 300 acres shews it to be wholly included within the area of Page’s location made about a month before. Consequently, if Page’s entry be valid, this must be void.

November 12th, 1796, Page made a second entry for 400 acres in a different place, but within the area of the plat of 1000 acres surveyed for Miller by virtue of his first entry.

The second entry made by Page, being within the area of Miller’s 1000 acres survey, neither affects, nor can be affected, by Miller’s second entry. If Miller’s first entry be good, this last entry by Page is void. But if Miller’s first entry be void, both Page’s entries will prevail over the *second entry of Miller, unless the doctrine contended for by the counsel for the latter be just, that, although his entry be vague and uncertain, it will not be merely void, but must prevail over a subsequent entry, if there be not quantity sufficient to answer both, according to the decision in Jones v. Lewis, under the legal government.

Whatever may have been the grounds of that decision, it is sufficient to say, that it was prior to the existence of the law under which the present parties claim. We are now to pronounce upon a rule prescribed by a written law, and not according to one which we do not know.

The same question was propounded in the supreme court of the United States in the case of Wilson v. Mason. And I cannot express my own opinion more satisfactorily to myself, or more clearly to others, than by adopting the decision of the court in that case.

“The caveat is a remedy given to prevent a patent from issuing in certain cases where the directions of the law have been violated to the injury of the commonwealth, or where some other person hath a better right. The case before the court is that of better right.” The terms of the law are expressly so.

I have already stated my opinion to be, that a location not made with due precision and certainly, is a void act, and constitutes no title whatever. “Consequently, (as was said by the court in Wilson v. Mason), the land remains vacant, and liable to be appropriated by any person holding a warrant. It is difficult to conceive that a remedy designed to enable an individual, who has made his entry in conformity to the law, to prevent another from obtaining a grant for the lands he has entered, should be withheld from any person whose entry entitles him to the land he has located. It is not less difficult to impute to the legislature an intention to protect a survey, to which the law denies all power of appropriating the land it comprehends; or an intention of carrying such survey into a grant, while another has legally appropriated to himself the land thus to be granted. It ''would be difficult to state a case to which the principle that a remedy should be so extended as to meet the mischief, would apply more forcibly than to this.” 1 Cranch, 101.

Upon these grounds, I am of opinion, that the caveator has, by law, a better right to the lands in question, than the caveatee; and therefore, without touching upon the remaining points which were argued in this cause, I am of opinion, that the judgment of the district court ought to be affirmed.

ROANE, Judge.

There is no difference of opinion among the judges upon any point except one. But I differ from the rest of the court as to the certainty of Miller’s entry. The construction given by them to the act of 1779, would have rendered the execution of it impossible in many parts of the country; and therefore as its effect cannot be graduated according to the stale of population in the place where the entry is made, it is better to lay down a rule, which -would be equally convenient to all.

The entry of Miller, compared with the survey, exhibits as much precision as can reasonably be required. The bottom lands, which every locator would naturally wish to acquire, afford a very good index to the entry, and impel the mind towards that part of the land as the place intended to be located. Besides, Henry Cary’s surveys correspond with this; and his descendants ought not to be permitted to say, that it was not natural to Miller to begin there, although it was natural to him. Page’s entry is not necessary to be taken notice of, but I have examined it, and think it has little more to boast of than this. There is no essential difference between this case and that of Field v. Culbreath, 2 Call, 547: Both were intended to comprehend all the vacant lands between certain lines ; and the survey was to determine the figure of each. The case of Hunter v. Hall, 1 Call, 206, does not resemble this; for there the entry merely referred to the lands of lord Fair-fax, and mentioned no particular part of them: but here it was impossible to mistake it: And, from the decree in that case, no *lawyer would have been at a loss to decide that the entry in the present case was good. In the case of Currie v. Martin, 3 Call, 28, no opinion was expressed as to the certainty of the entry, but it was sanctioned by a side wind; and the entry of Martin himself appears to have been admitted on all sides, although it was not more certain than this. In the case of Consillart v. Bristoe, it appears that this court, in 3790, affirmed an entry .at least’ as vague as this, Hughes’s Kentucky Rep. 46, 48; and that book abounds in cases where entries more uncertain have been supported by the courts of that country. The entry in the case of Wilson v. Mason, 1 Cranch, 45, was not more precise than the present; yet it was not impeached by the bar or the court; on the contrary, it was said by the court to be sufficient, but that it was not pursued by the survey which was made eight miles off. In Currie v. Martin, it was said, by Mr. Call, that the land office had been examined, and that few entries were found to be more certain than that, (which was not more precise than Miller’s); and if so, it is a strong argument in favour of the one now under consideration ; for long usage and the common error of the people ought to be regarded. 1 Wms. 99, 410; 1 Atk. 140; 3 Atk. 762; 1 Wms. 223; 3 Atk. 68. I think, therefore, that the judgment ought to be reversed, and judgment entered for the appellant.

CARRINGTON, Judge.

The first question ,in the cause is, whether the lands were waste and unappropriated? And I think they were. The circumstances relied upon do not afford a presumption to the contrary. For, in the first place, it does not appear by what authority. .Mayo’s survej's were made; if done wi.th a view to acquire the land, better evidence might have been had by resorting to the record books of the surveyor. And the length of possession, and the payment of the taxes, will not create a more favourable inference, since both may have happened without a grant; which, if it had ever issued, would probably have been found *upon the books in the land office. . Of course, the lands were unappropriated at the time of Miller’s entry.

The next question then is,, whether his entry is a sufficient one or not? The law requires that the location shall be so specially made as that others may be enabled with certainty to.locate their warrants on the adjacent lands: which has not been attended to in the present instance; for nobody but'Miller himself could have told, from the entry, at what point of the creek, ' which was upwards of a mile long, he meant to begin ; nor what part of the vacant land he meant to cover by his survey: So that a future adventurer was left in the dark,, and could not tell where to begin. For, if he went to either end, Miller might begin there, and defeat him; and the same consequences would have resulted, if he had selected any other part. The cases referred to do not support the entry.. That of Hunter v. Hall, 1 Call, 206, certainty does not; but the contrary; for the entry there was not sustained. That of Field v. Culbreath, 2 Call, 547, was not like this; for there the entry was for all the vacant lands between certain lines; which necessarily included the whole, and therefore there could be no surplus: But here the'entry is not for the whole, but a part only; and therefore it should have been made-with such precision, as that others might have known how to locate the residuum, without .difficulty. The case of Consillart v. Bristoe, I am not acquainted with; but it probably depended upon circumstances, and the unsettled state Of the country where the entry was. made. In Wilson v. Mason, 1 Cranch, 45, the entry Was not like this, and the judgment turned upon the defect in the survey; which was mad.e at eight miles distance from the place of entry. In Currie v. Martin, 3 Call, 28, there was some diversity of opinion among the judges as to the certainty of the entry; and the court gave no opinion on it, but the cause went off, upon the want of title in Martin to the warrant,' as there was no proof that it had been assigned to him. Thus then it appears that none of the cases apply; and therefore the *cause is to be decided upon the act of assembly; which requires a degree of certainty, which- was not attained in the present case; and therefore I am clearly of opinion that Miller’s entry is void, for the vagueness and uncertainty of it.

With respect to the question of costs, it is discretionary in the court to allow them, or not, and as the district court saw cause to allow them, I see no reason to disturb their judgment: which I think ought to be affirmed throughout.

I/VONS, President.

Caveat cases must always depend upon the circumstances; and therefore the- act of assembly, affording a general rule, is a better guide than particular adjudged cases. Miller’s entry, in the present case, is certainty too vague: It states no particulars, and wants that precision which would have enabled others to locate their warrants with certainty (the great desideratum in the act of assembly); for it -would have been impossible for a future locator to have told where to begin, as he could not, from the entry of Miller, have told where the latter would make his survej. The entry, consequently, does not pursue the genius and policy of the law, which intended to disembarrass future adventurers from difficulties of this kind. I am therefore of opinion, that it is utterly void, and his second entry, depending on it, is equally exceptionable: Of course, the judgment of the district court is perfectly right upon this point: For I give no opinion upon the others made by the ap-pellee’s counsel.

It has been rightly observed, that costs are discretionary with the court in cases of this kind; and as the district court thought proper to allow them, and no specific objection to it is shewn, I see no reason to disturb the judgment.

Judgment affirmed.  