Santee v. Keister

Tilghman C. J. after stating the case and the several . exceptions, delivered his opinion upon them as follows: 1., The act of assembly requires that the plaintiff should file a description of the land, and the defendant might have insisted on it, by application to the Court of Common Pleas, if he had thought proper. But he chose to enter a rule of [38] reference. The description was intended for the benefit of the defendant, that he might know with certainty what land was in dispute. Every man may waive a right which the law gives him. The defendant therefore might dispense with the desci'iption of the land. Still it is necessary that it should appear on the record with reasonable certainty for what land the suit was brought. This is a general principle, established for the sake of public justice, which the Court will not dispense with. On adverting to the writ we find that there is a sufficient description. The quantity of land is mentioned. On one side it is bounded by the river Susquehanna., and on the three other sides by lands of persons who are named. / 2. There is no material variance between the writ and the award. The boundaries are different, because the land mentioned in the award is but part of that mentioned in the writ. The question then simply is, whether the plaintiff in ejectment may recover part of the land for which the suit was brought. Without doubt he may. 3d, 4<th and 5th. The 3d, 4th and 5th errors depend on the same principle. It is objected that the award is uncertain, because it cannot be understood without reference to a decision of the board of property, not appearing on the record, and not referred to with sufficient certainty. I am disposed to give to awards a candid and liberal construction. Critical objections tending to destroy them, are not to be favoured. When this award mentions a decision of the board of property, it is not stretching too far to understand a decision, respecting the land for which tire ejectment was brought, between the same parties or persons under whom they claim. We find that there was such a decision, and the writ of possession was issued precisely in conformity to it. I am therefore of opinion that it may be supported, and that the judgment should be affirmed. Ye ates J. was absent in consequence of sickness. Brackenrjdge J. concurred with the Chief Justice., Judgment affirmed.