her before, unless she has forfeited her title to relief, by acquiescence or unreasonable delay. But it has been argued, on the part of the defendant, that assuming the agreement to have been made by mistake, and that the complainant would have been entitled to set it aside if she had prosecuted her claim within a reasonable time; yet, as Massachusetts entered into the disputed territory immediately after the agreement, and has held it ever since, the complainant is too late in seeking relief; that after such a lapse of time, she is barred by prescription, or must be presumed to have acquiesced in the boundary agreed upon; and that if she did not acquiesce, she has been guilty of such laches and negligence in prosecuting her claim that she is no longer entitled to the countenance of a court of chancery. The answer to this argument is a very plain one. The complainant avers that she never acquiesced in the boundary claimed by the defendant, but has continually resisted it since she discovered the mistake-and that she has been prevented from prosecuting her claim at an earlier day by the circumstances mentioned in her bill. These averments and allegations, in the present state of the pleading, must be taken as true; and it is not necessary to decide now whether they are sufficient to excuse the delay. But when it is admitted by the demurrer that she never acquiesced, and has from time to time made efforts to regain the territory by negotiations with Massachusetts, and was prevented by the circumstances she mentions from appealing to the proper tribunal to grant her redress, we cannot undertake to say that the possession of Massachusetts has been such as to give her a title by prescription; or that the laches and negligence of Rhode Island have been such as to forfeit her right to the interposition of a court of equity. evident that a possession so obtained and held by Masaschusetts, under such circumstances, cannot give a title by prescription. The demurrer, therefore, must be overruled. But the question upon the agreements, as well as that upon the lapse of time, may assume a very different aspect, if the defendant answers and denies the mistake, and relies upon the lapse of time as evidence of acquiescence, or of such negligence and laches as will deprive the party of his right to the aid of a court of equity. It will then be open to him to show that there was no mistake; that the line agreed on was the true charter line; or that such must be presumed to have been the construction given to the charters by the commissioners of both colonies; or that the agree ment was the compromise of a disputed boundary, upon which each party must be supposed to have had equal means of knowledge. was guilty of laches, in not prosecuting her rights in the proper forum, and that the excuses offered for the delay are altogether unfounded or insufficient, and that Massachusetts never assented to it, nor occasioned it. So, too, in relation to the facts stated in the bill to account for the delay. It will be in the power of the complainant to show, if she can, that her long continued ignorance of an error (which, if it be one, was palpable and open), was occasioned by the wild and unsettled state of the country; and that the subsequent delay was produced by circumstances sufficiently cogent to justify it upon principles of justice and equity; or was assented to by *Massa- [*274 chusetts, or occasioned by her conduct. And, on the other hand, it will be the right of the defendant to show, if she can, that Rhode Island would not have been ignorant of the true position of this line until 1740; or, if she remained in ignorance until that time, that it must have arisen from such negligence and inattention to her rights as would render it inexcusable, and should be treated, therefore, as if it had been acquiescence with knowledge; or she may show that, after the mistake is adIn cases between individuals, where the stat-mitted to have ben discovered, Rhode Island ute of limitations would be a bar at law, the same rule is undoubtedly applied in a court of equity. And when the fact appears on the face of the bill, and no circumstances are stated which take the case out of the operation of the act, the defendant may undoubtedly We state these questions as points that will take advantage of it by demurrer, and is not remain open upon the final hearing, for the bound to plead or answer. The time necessary purpose of showing that the real merits of the 273*] to operate as a bar in equity is fixed at controversy could not have been finally distwenty years, by analogy to the statute of lim-posed of upon the present pleadings; but withitations; and the rule is stated in Story's Com. Eq. Pl. 389, and is supported and illus trated by many authorities cited in the notes. It was recognized in this court in the case of Elmendorf v. Taylor, 10 Wheat. 168-175. But it would be impossible with any semblance of justice to adopt such a rule of limitation in the case before us. For here two political communities are concerned, who cannot act with the same promptness as individuals; and the boundary in question was in a wild unsettled country, and the error not likely to be discovered until the lands were granted by the respective colonies, and the settlements approached the disputed line; and the only tri bunal that could relieve after the mistake was discovered was on the other side of the Atlan tic, and was not bound to hear the case and proceed to judgment, except when it suited its own convenience. The same reasons that prevent the bar of limitations make it equally I out meaning to say that other questions may not be made by the parties, if they shall suppose them to arise upon the procedings hereafter to be had. The points above suggested, which are excluded by the case as it now stands, make it evident that this controversy ought to be more fully before the court, upon the answer, and the proofs to be offered on both sides, before it is finally disposed of. The court will, therefore, order and decree that the demurrer be overruled; and that the defendant answer the complainant's bill on or before the first day of August next. This cause came on to be heard on the amended bill and demurrer, and was argued by counsel; on consideration whereof, it is now here ordered by this court that the said demurrer be, and the same is hereby overruled; and it is also now further here ordered by this court that the defendant answer the bill of complaint, as amended, on or before the first day of August next. 273*] *OLIVER O'HARA et al., Appellants, V. THE UNITED STATES, Appellees. | O'Hara, for himself and for the other heirs of Daniel O'Hara, presented a petition praying for the confirmation of a grant of fifteen thousand acres of land made by Henry White, then the Spanish Governor of East Florida, [*276 on the 5th of September, 1803, to Daniel O'Hara, the father of the petitioners; and which was alleged to have been confirmed on the 3d of September, 1818, by the Spanish Governor Coppinger. Grant of land in Florida--nonperformance of The grant, and the proceedings on the same, condition-omission to have land surveyed-are fully stated in the opinion of the court. grant void. A claim for land in East Florida, granted by Governor White to Daniel O'Hara, rejected by the Superior Court of East Florida, and the decree of that court affirmed. Governor White, on the petition of Daniel O'Hara, soliciting a grant of fifteen thousand acres, made a decree granting "the lands solicited" "at the place indicated," "in conformity with the number of workers which he may have to cultivate them, the corresponding number of acres may be surveyed to him," "and that he will take possession of said land in six months from the date of the grant." Held, that this is a decree not grantIng fifteen thousand acres as asked for; but so much at the place where it is asked for as shall be surveyed in conformity with the number of workers the grantee may have to cultivate the land; the quantity could be determined by the regulation of the governor, made the month after the grant, and determining the quantity of land to be surveyed according to the number of persons in the family of the grantee, slaves included. That the grant was made before the date of the regulation, makes no diTerence. No settlement was made on the lands claimed under the grant. The building of a house on the land is but evidence of an intention to make a settlement, but was not a settlement, which required the removal of persons or workers to the land, and cultivating it. Mr. Downing appeared as counsel for the appellants. Mr. Gilpin, for the United States, contended: The evidence of this grant is certificte of Tomas de Aguilar, in the form of that commented upon in the case of the United States v. Wiggins, 14 Peters, 345. If this document be regarded as sufficient to establish the fact that such a concession was actually made by Governor White; still there is no proof either of possession, or survey, or citizenship of the claimant; all of which were necessary to perfect a grant in Florida, to any quantity of land whatever. The memorial of the claimant to Governor White is dated the 3d of September, 1803. He says that he has but lately become an inhabitant of the province, and that he "intends to settle" there. Two days afterwards he receives this grant, and on the same day leaves the province, to which, so far as the record shows, he never returned. Early in June, 1804, nine months subsequent to the concession, an agent at St. Augustine writes to him, as the record shows, urging him to "take possession of his lands" which he had not then done. On the 20th of June, in the same year, we have the decree of the District Court of the United States at Savannah, in an admiralty proceeding, where the claimant is a party. This shows that the brig Chance, being bound a regular voyage from Jamaica to South Carolina with some negroes on board, had been captured by a French privateer, and recaptured by a British cruiser, and subsequently ransomed by the claimant. It is alleged that these negroes were the property of the claimant, who intended to this was an indefinite description of the land; as place them on the tract lately granted to him No claim for the land can be sustained under a grant, or confirmation of a prior grant, made by a decree of Governor Coppinger in 1819, as the same was substantially a violation of the Treaty with Spain, which confirms only grants made before the 24th January, 1819. The prior grant to O'Hara having become void by the nonperformance of the conditions annexed to it, the decree of Governor Coppinger in 1818 was an attempt to make a new grant. If the grant were not void from the nonperformance of the conditions of settlement annexed to it. the omission to have the land surveyed and returned to the proper office would make it void, unless the grantee had made a settlement: in which event a survey would be presumed. The grant was made in the "district of Nassau," etc.; was held in Buyck v. The United States, decided at this term. N appeal from the Superior Court of East 0 Florida. In the Superior Court of East Florida, Oliver NOTE.-Description in deed must be definite; when void for uncertainty. Certainty, to a common intent, is sufficient. Thus where sheriffs' deed of all the right of D. in a certain lot of land on south of A. creek, but giv ing a description of only one line, commencing at the creek and running to a known farm, was held sufficient, it appearing that D. had a lot lying between the line, the farm, and the creek, and that from this description, witnesses familiar with the objects described could identify it. Dygert v. Platts, 25 Wend. 402. A description by reference to another deed is sufficient, where the other deed is produced, or its contents proven, to enable the premises to be identified. Jackson v. Parkhurst, 4 Wend. 369. Where the description of the boundaries are somewhat vague and indefinite, the acts of the parties. of government, and of those claiming under adjoining patents, are entitled to great weight in the location of the grant. Jackson v. Vedder, 2 Cal. 210; Jackson v. Wood, 13 Johns. 346. in Florida; but no evidence of such intention is given; and if it existed it never was carried into effect, although the decree of the Court of Admiralty was in his favor. A witness, Francis Marien, was produced to prove that, soon A grant of a specified number of acres, to be taken out of a larger quantity of land, passes title to them as an undivided portion, and a subsequent location of the acres by the parties, pursuant to the right of election given, followed up by possession, is good as a partition by parol. Corbin v. Jackson, 14 Wend. 619; Jackson v. Livingston, 7 Id. 136. A sheriff's deed to a purchaser under an execu tion, describing the premises sold, as "all the lands and tenements of the defendants, situate, Iving, and being in the Hardenbergh patent," is void for want of a sufficient description of the premises. Jackson v. Roosevelt, 13 Johns. 97; S. P. Jacksou v. Delancy, 13 Id. 537. A sheriff's deed reciting that he exposed to sale a tract described, supposed to contain 400 acres, "whereof about 100 acres were struck off." etc.. and then proceeding, in consideration of the sum bid, to "grant the before-mentioned premises to the said J. N., his heirs and assigns forever." Held void for uncertainty. Peck v. Mallams, 10 N. Y. 6 Seld. 509. after the grant, the claimant attempted a set277*] tlement; but it appears from his crossexamination that he knew only "from general information that lands were granted to the claimant in East Florida; that the claimant informed him he had engaged a carpenter; and that the carpenter told him he was employed for the purpose of building a house;" there is no evidence whatever of such a house being commenced or built. From this time, until August, 1821, after the actual cession of the Floridas, there is no evidence of an attempt by the claimant at settlement and possession; in a letter then written to him from St. Augustine it is said that "endeavors will be used to put a family on his lands at Nassau, to begin a settlement and take possession, which is very necessary should be done." That it was done then, or subsequently, is neither asserted nor proved. It is clear, therefore, that at no time did the claimant occupy or settle on the land alleged to be granted to him. Nor was it ever surveyed so as to perfect the grant. The survey, by the authorized public surveyor, was an essential requisite to every grant under the Spanish land laws. 2 White's New Rec., 230, 238, 278. The order of survey accompanied or shortly followed the concession. None such is produced with this grant. Parol testimony, taken after this suit began, was introduced to establish, if possible, a survey in 1811; but the survey, if made, is not produced, nor is there any evidence that it was so made by the direction of any competent authority. In March, 1819, after the date of the treaty ceding the Floridas to the United States, a survey was made. It is that now relied on by the claimant. It was not only made with out any authority, but when an order for a survey was solicited from Governor Coppinger, it was refused. Had the order been then granted, the survey would have been illegal, as was ruled by this court in the case of The United States v. Clarke, 8 Peters, 468; but, so far from being granted, it was explicitly refused. Spanish citizenship was an indispensable requisite to the validity of a grant. The oath of allegiance was required as a primary condition. 2 White's New Rec., 232, 277. In a despatch of Governor White to the Marquis of Someruelos 2 White's New Rec., 258, 250, he In the case of an ambiguity in a sheriff's deed, proof of the intent of the sheriff, as to the premises to be conveyed by sale, is incompetent. If the deed, in the description, follows the advertisement and certificate of sale, it cannot be amended or reformed. The statute requires a particular description of the premises sold. Public policy requires distinct notice. The judgment debtor, and his creditors and mortgagees, are entitied to be able to determine. without resort to extrinsic evidence, what premises have been sold. Mason v. White, 11 Barb. 173. That if the description is illegible, the deed would be inoperative. Jackson v. Ransom, 18 Johns. 107. That a conveyance of "all my estate" is sufficiently certain. Jackson v. Delancy, 4 Cow. 427. A grant of land will not be he'd void for uncertainty of description, if, in the nature of things, it seems possible to obtain testimony by means of which the particular parcel granted may be determined. Blake v. Doherty, 5 Wheat. 359. A description in a deed of all the lands in a specified common, which the grantor had not thereCore conveyed by the grant, is suficient. Scully v. Sanders, 44 N. Y. Supr. 12 J. & S. 89. comments, in strong language, on the course pursued by persons who came into the prov ince, hastily took the oath of allegiance, and immediately left it. He declares such [278 a proceeding to be an abandonment of the land granted to them. The evidence in this case shows such a proceeding on the part of the claimant. In the admiralty suit at Savannah, he declared himself to be, in June, 1804, a citizen of the United States. He always resided there; never in Florida. Was not this clearly an abandonment of any privileges he might have obtained by a short and temporary residence in Florida in 1803? But if the grant had been perfected by survey and possession, what was its character? The claimant urges that it was a grant to him of fifteen thousand acres of land, and he asks to be confirmed in such a grant. But what says the concession of Governor White, on which he relies? It permits him to occupy lands, at the place indicated, "until the time when, in conformity to the number of workmen whom he may have to cultivate them, the corresponding number of acres may be surveyed to him;" and it requires that he shall "take possession of the said land within the term of six months from the date" of the concession. The grant was thus conditional, altogether, on the fact of possession within six months; the evidence is clear that there was no possession whatever, at any time. But had he taken possession, the quantity granted still remained conditional; it depended on the number of workers, according to the regulations which were freely discussed and passed upon by this court in the case of The United States v. Wig. gins, 14 Peters, 341, 351. Where there were no workers, there could not be "a corresponding number of acres surveyed" to the grantee. By his failure to introduce them, he abandoned his grant; it became "of no value or effect, and should be considered as not made." 2 White's New Rec., 284. The argument, that it was revived by Governor Coppinger, in 1819, cannot be maintained. If it had been so revived, it would be subject to the original terms of settlement and cultivation by a proportionate number of workers, which have never Leen complied with to this day. But it was not so revived, and could not be. When the claimant applied to Governor Coppinger for an order of If a deed contains a description sufficiently certain as to the estate to be conveyed, it will pass the estate, although the estate does not agree with all the particulars of the description. Bosworth v. Sturtevant, 2 Cush, 392. When a deed, conveying land, is of doubtful construction as to the boundaries. the construction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary be clearly snown. Stone v. Clark, 1 Met. 378. The description in a deed referring to another deed, is made sufficiently certai by the reference. Allen v. Bates, 6 Pick. 460. Where a description in a deed is somewhat indefinite and defective, proof that the vendee took possession of the tract thus conveyed, and occupied it, and that all the subsequent grantees under him, of whom there were several, at the date of their respective conveyances took possession of the same tract and remained in ope and notorious possession of it until they parted with their respective interests. Held, that the deed accompanied by this evidence of identification and occupation of the land, was properly admitted. Steinbach v. Stewart, 11 Wall. 566. survey under the original grant, the indorsement of the Governor was "not admitted." Had it been admitted, it would have been a violation of the eighth article of the treaty (6 Laws of United States, 618; 2 White's New Rec., 210), which declared all grants made since 279*] the 24th January, 1818, void; for such an act of Governor Coppinger would have been clearly a new grant, subsequent to that day, the former one, of 1803, having become totally void by the conduct of the grantee himself. Mr. Justice Wayne delivered the opinion of the court: Appeal from the Superior Court of East Florida. The appellants are the heirs of Daniel O'Hara, and they claim the land in controversy, in virtue of an alleged grant, dated the 5th of September, 1803. The grant was adjudged in the court below not valid. The memorial for the grant; order of Governor White, to the commandant of engineers, to report upon it; the report of that officer; and the decree of the Governor; are as follows: His Excellency the Governor: Don Daniel O'Hara, lately admitted an inhabitant of this province, under the protection of His Catholic Majesty, with due respect represents to your Excellency, that intending to settle in this province with a considerable property and his large family, after having ascer: tained that all, or the greatest number of all those who had petitioned for lands, have solic ited to have them located in the southern dis Decree. St. Augustine of Florida, 5th September, one thousand eight hundred and three. hereby granted to him in the place indicated, The lands solicited by the petitioner are without prejudice to a third party, and until the time when, in conformity to the number of workers whom he may have to cultivate them, the corresponding number of acres may be surveyed to him; it being well understood that he shall not claim indemnity for damages or losses in the case; that under the apprehension of an invasion, or other motives relating to the royal service, he be ordered to retire in the interior of the province; and that he will take possession of the said land within the term of six months from this date. White. It will be perceived that the memorialist asks for fifteen thousand acres, as it is his intention, with his vast property and numerous family, to settle in the province. He asks for it at the place called Nassau, and if it cannot be found vacant there, when the survey is made, that the deficiency may be granted on the river St. Marys; and he obliges himself to take possession within six months. The decree of the Governor is, the lands "solicited by the petitioner, are hereby granted to him in the place indicated;" "in conformity to the number of workers which he may have to cultivate them, the corresponding number of acres may be surveyed to him;" "and that he will take possession of said land within the term of six months from this date." *It is a decree, then, not granting [*281 trict, in the vicinity of Musquito River, and fifteen thousand acres as asked for, but so after having consulted many neighbors in ref- much in the place where it is asked for as shall erence to vacant lands, as has no wish to enter be surveyed, in conformity to the number of into disagreeable litigation with other petition-workers he may have to cultivate the land; and ers, or to injure them in any way, he begs of your Excellency, be pleased to grant him fifteen thousand acres of land out of those lands which are vacant between the rivers St. John and St. Marys, in the place called Nassau, and in case the said vacant lands do not comprehend the number of acres he solicits, he begs your Excellency to have the goodness, when the survey will take place, to grant him the deficiency on the River St. Marys, and he obli: gates himself to take possession of the said lands within the term of six months; which favor, he doubts not, he will receive from the noble munificence of your Excellency. Daniel O'Hara. as to what that quantity should be, there is no uncertainty, for we have the regulation of Governor White, promulgated by him, the month after the date of the decree, which states, to each head of a family of a new settler, there shall be granted fifty acres of land, and an equal quantity to a single person, widow or widower, and to the children or slaves of sixteen years of age, twenty-five acres each. This regulation, then, determines, in that reand the conclusion that the grant was to be in spect, what the governor intended to grant; conformity with the regulation, cannot be shaken by the suggestion that the decree was made before the date of the regulation, as it might be, if the grant had been for fifteen thousand acres in terms. There is no grant for any quantity; when it is found that the decree is restrained to a right to be determined by the number of workers which the memorialist shall have, that the governor had the Having taken cognizance of the petition, and power to make a grant with such a restriction, in obedience to the preceding decree, I repre- and that so shortly after the decree was made sent to your Excellency that the culture of the as the following month, he promulgated a genlands solicited by the petitioner does not inter-eral rule for grants to new settlers, the inferfere with the defense of the province; therefore, as far as the department of fortifications is concerned, your Excellency may grant to him the number of acres you see fit. This is all I have to represent to your Excellency, who will determine according to your pleasure. St. Augustine of Florida, third of September, one thousand eight hundred and three. 280*] *Decree. St. Augustine, 3d September, 1803.-Let the commandant engineer inform on the subject. White. Nicolas Barcelo. St. Augustine of Florida, 5th September, 1803. ence is good, until it is contradicted by some other fact, or other regulation applying to new settlers, that the memorialist was to take under the decree in his favor as contemporary new settlers would have to take. The memori alist never made a settlement. The witness, Marien, says he did attempt a settlement; that a house was built; and that O'Hara informed him he had employed a carpenter to build it; | grantee had settled and occupied land under but the memorialist never took his family, nor that decree, in which event a survey might be negroes to the land. The construction of a presumed. The memorialist asks for lands in house was no compliance with the condition of the place called Nassau; and in the event of the grant. That act itself could not, under the whole quantity not being got there. for the the regulation, give a right to any number of deficiency to be made up on the River St. acres. The right vested upon the persons, black Marys. Such a place as the place called Nassau and white, who might be carried to make a is not known, unless is meant by it all the land settlement. The house is good evidence of an between Nassau River and the St. Johns and intention to settle with persons; but if the evi- St. Marys. It is equidistant, or nearly so, from dence discloses the fact that no persons or those rivers, and wends its way to the Atlantic workers were ever taken to it; that cultivation in a course of fifty or sixty miles. If the land was not begun; the inference is made the is to be taken on the Nassau, where shall a stronger that the rights of the memorialist un- survey be begun, and on what part of the St. der the decree were abandoned. Marys shall the deficiency in quantity be taken, supposing that a part can be found in the "place called Nassau?" The St. Marys is known as the boundary between Florida and Georgia, and that its head, or source, is on the Oquafanoche Swamp. It is navigable for a hundred miles from its mouth to the Atlantic, between Cumberland and Amelia islands. Where, then, shall a survey begin in this range, under this decree? It is no answer to say, the decree is for vacant land; and if there is vacant land there now, a survey could be made; for the place where the survey is to be made must first be made certain, if not as to fixed boundaries, at least so certain, by evidence of general or popular apprehension, as to show what was the grantor's notion of the limits of country within which he intended to grant. Unless, then, a survey can be made of the original grant in the place called Nassau, the alternative for any deficiency on the St. Mary's River cannot be shown; which alone would entitle the memorialist to land there. This grant is therefore void, on account of uncertainty. It is not made, as the court said in the case of Buyck v. The United States, decided at this term, in such a was as to distinguish it from things of a like kind; nor has the identity of the grant been shown by extraneous evidence. The record discloses an attempt by the me282*] morialist, immediately after the decree of the governor, to get negroes from Jamaica for a settlement; and that the vessel in which they were embarked was taken into Savannah and libeled in admiralty; but the proceedings in admiralty do not show that the memorialist was deprived, ultimately, of the negroes; and if he was not, and the negroes were restored, no cause is shown why they were not taken to Florida. But if they were not restored, it will scarcely be contended that an unfortunate attempt to carry negroes to take possession of the land fulfils the intention of a grant, the quantity of which is to depend upon the number of workers actually employed in cultivation. But there was not only a failure to settle in this case, there was an actual abandonment. We hear nothing of the memorialist, or of any attempt to settle the land, from the spring of 1804 until 1819. There never was a survey of any land, by authority, though one is alluded to, until March, 1819; and that was made without the order of the Spanish authorities in Florida. Inded, it was done against authority; for we find from the testimony in the cause that O'Hara petitioned Governor Coppinger, on the 20th April, 1819, within a few months of sixteen years after Governor White's decree had been given upon his memorial, for an order of survey upon the decree; and that it was refused. We have, then, in this fact, a denial of the memorialist's right to the land by a gov. ernor of Florida. There can be no doubt it was looked upon by Governor Coppinger as abandoned; and that the right to the same was lost under the 9th article of Governor White's regulations, already spoken of as contemporary with the decree upon the memorial of O'Hara. JAMES H. BREEDLOVE, Defendant in Er2 White's New Rec., 278. It is not necessary for us to speak of a subsequent attempt by O'Hara to introduce negroes into Florida, in 1819, and its failure. This right to the land originally asked for had ceased; he could make no claim under the decree of September, 1803, and a revival of the old grant by the Spanish authorities would have been substantially a violation of the Treaty with Spain, which only confirms grants made before the 24th January, 1818. With this view of the case, we think the decree of the court below should be affirmed. But, if the right of the appellants had not been lost by their neglect to settle the land with 283*] workers, we should say the grant itself was too indefinite to convey any land, unless a survey had been made, and had been recognized by the Spanish authorities; or unless the The judgment of the court is affirmed. *WILLIAM M. GWIN, Marshal of the [*284 Southern District of Mississippi, Plaintiff in Error, V. ror. Judgment of dismissal under the 43d rulecause may be re-instated. trict of Mississippi, was docketed and dismissed A case, on a writ of error to the Southern Dison the 9th of February, of the present term, upon motion of the defendant in error, under the fortythird rule of the court; and on the 11th of Febru ary, a mandate, on a like motion, was ordered to issue to the Circuit Court, to proceed in the case; which was issued on the next day. On the 6th of March, the plaintiff in error appeared in court by his counsel, and produced and filed with the clerk the record of the case, and moved to strike off the judgment of dismissal, and to continue the case. der the rule, is a judgment nisi; and it may be BY THE COURT: The judgment of dismissal unstricken out at any time during the court, upon motion; unless it appears that the omission to nie the record and docket the case, at an earlier pe riod of the court, had been injurious to the inter ests of the defendant in error. The motion to re |