
    Beverley v. Fogg.
    [Tuesday, May 7, 1799.]
    Writ of Right — Boundaries — Description--Amend" ments. — If the demandant, In a writ of right, omits to set forth the boundaries in his count, it will be error, after verdict.
    
      Will — Devise — Proof — Witnesses.—Quaere. If there be several clauses in a will, and some of them, devising lands, are written in the testator’s own hand, though the others are not, whether the devise of the lands will be good, without two witnesses.
    Fogg brought a writ of right in the District Court of King and Queen, against Robert Beverley, and counted for 208 acres of land, with the appurtenances, in the county of Essex, bounded by , without describing the boundaries. Beverley appeared, and filed the plea prescribed by the act of Assembly, without setting forth the boundaries; and the mise was .joined in the manner set forth in the act of Assembly. Verdict, ‘ ‘that the said John Fogg hath more right to have the tenement aforesaid, which he demandeth against the said Robert Beverley, by his writ aforesaid, than the said Robert Beverley, to hold it as he now holdeth it.” Judgment, “that the said John Fogg recover against the aforesaid Robert Beverley, his seisin of and in the tenement aforesaid, with the appurtenances as of right, namely, one tenement, containing two hundred acres 485 *of land, with the appurtenances, in the county of Essex, and bounded by ; and, also, his costs in this behalf expended. Upon the trial of the cause, the tenant filed a bill of exceptions, which stated, that he offered a witness to prove that certain clauses in the last will of Nathaniel Fogg, deceased, through whom the demandant claims as heir of the said Nathaniel, were written in the hand-writing of the said Nathaniel Fogg, which was recorded in Essex County Court, though only proved by the oath of one witness, and no certificate thereon written, that the same witness had given testimony, that the same clauses were written in the hand-writing of the said Nathaniel Fogg, which clauses were in these words, to wit: “My meaning is, that my daughter Anna have one hundred and twenty-five ackers out of the lands which I bought of James Holloway, on Neoffin Swamp, this alteration made with my own hand, Nathaniel Fogg.” “The alteration two the meaning is, that my daughter Anna have one hundred and twenty-five ackers out of the land I bought of James Holloway on Neoffin Swamp, this alterations on the other side I made with my own hand this 10th day. of December, 1752. Nathaniel Fogg.” That the Court refused the witness, and would not permit the said will to go in evidence. Beverley appealed from the judgment to this Court.
    Warden, for the appellant, took three exceptions.
    1. That the boundaries of the land were not set forth in the count, as the act of Assembly requires. 2. That the judgment does not state the quantity of estate adjudged to the demandant. 3. That the Court improperly refused to permit the will to be given in evidence. For, as that part of the will, which disposes of the lands, was all written in the testator’s own hand, it was sufficient; although the other parts of the will were not. Because the word, devise, in the act of 1748, [5 Stat. Larg. 456,] refers to lands only; and has no relation to a disposition of chattels.
    ^Marshall, contra.
    The act requires, that the whole will should be written by the testator, or attested by the necessary number of witnesses. The word devise, is not to be restricted to the sense contended for. Such a construction would not satisfy the terms of the act; which require, that it should be attested by two witnesses, or wholly written by the testator. As to the boundaries not being described in the count, it is too late for the defendant to make an objection upon that ground now: For, having gone to issue on the count; he has taken on himself the knowledge of the lands demanded :
    Cur. adv. vult.
    
      
      Writ of Right —Boundaries — Description - Amendments. — A count upon a writ of right describing the land demanded as a certain number of acres, part of a larger tract, and setting forth the boundaries of such larger tract, is sufficiently certain after verdict. Lovell v. Arnold, 2 Munf. 167, 173, citing the principal case: and Turberville v. Long, 3 H. & M. 309. See the principal case cited in Bolling v. Mayor of Petersburg, 3 Rand. 585; Hitchcox v. Rawson, 14 Gratt. 538; Bowans v. Givens, 10 Gratt. 350; Postlewaite v. Wise, 17 W. Va. 10; Moore v. Douglass, 14 W. Va. 726; Holliday v. Myers, 11 W. Va. 291.
      A count on a writ of right, referring to bound aries, as by a survey made in the cause, sufficiently describes the boundaries of the land in dispute, Turberville v. Long, 3 H. & M. 309, 313, citing and explaining the principal case.
      Where the count in a Writ of right demands a cer
        
        tain tenement consisting of the one stone house with appurtenances, etc., this is a demand of the land on which the house stands, and is certain enough. Snapp v. Spengler, 3 Leigh 5, citing and distinguishing the principal case.
    
    
      
      Adverse Possession — Description of Land by Metes and Bounds. — A description by metes and bounds is pot necessary when the premises are well known by name. Lennig v. White, 1 Va. Dec. 887, citing the principal case; Snapp v. Spengler, 2 Leigh 1; Hutchinson on Land Titles, sec. 395.
    
   LYONS. Judge.

Delivered the resolution of the Court, that there was no weight in the objection, that the quantity of the estate was not mentioned in the judgment; for, that is not necessary under the act of Assembly. But, that the judgment of the District Court was to be reversed, because the demandant had omitted to set forth the boundaries of the land in his count.

The judgment was as follows: “The Court is of opinion that the said judgment is erroneous in this, that the boundaries of the land demanded in the count are not inserted therein as required by law, nor found by the verdict of the jury. Therefore, it is considered, that the same be reversed, &c. and this Court proceeding to give such judgment as the said District Court ought to have given. It is further considered, that the defendant take nothing by his count; and, that the plaintiff go thereof without day and recover against the defendant his costs by him about his defence in the said District Court expended.”  