1821.

Preston's
Heirs

V.

Bowmar.

the patent, and then the closing line is to be drawn, so
as to strike the termination of the second and fourth
lines at the patent distances. In the former case, the
fourth line will be longer than the distance called
for by the patent; in the latter, the third line will
vary from the course called for by the patent.
patent. The
counsel have stated, that the question resolves itself
into this, whether the course shall yield to dis-
tance, or distance to the course. It may be laid

down as an universal rule, that course and distance
yield to natural and ascertained objects. But
where these are wanting, and the course and dis-
tance cannot be reconciled, there is no universal rule
that obliges us to prefer the one or the other. Cases
may exist in which the one or the other may be pre-
ferred upon a minute examination of all the circum-
stances. In the present case, whichever construction
is adopted, the plaintiffs will hold a larger portion of
land than their patent calls for. We must consider
that the construction of the patent is somewhat
doubtful. That it is susceptible of two construc-
tions, each of which has some reasons to support it.
If it be doubtful, it would seem reasonable not to
press the broadest construction against a party who
is now in actual possession under a perfectly good
legal title. That possession ought not to be ousted
without a clear title in the other party, especially
where it has been upheld by the State tribunals.
This very case, between the same parties, has been
already adjudicated in the Court of Appeals of Ken-
tucky; and that Court, upon full deliberation, de-

cided in favour of the defendant." It would be a great mischief for the same title to be in perpetual litigation from the conflict of opinion between the Courts of the State and the federal Courts; and we, therefore, acquiesce in the opinion of the Court of Appeals, upon the ground, that the point is one of local law, has been fully considered in that Court, and is a construction which cannot be pronounced unreasonable, or founded in clear mistake.

Judgment affirmed.

a Preston's Heirs v. Bowmar, 2 Bibb. Rep. 493.

1821.

Otis

V.

Walter.

CONSTRUCTION of Statute.)

OTIS V. Walter.

Under the Embargo Act of the 25th April, 1808, c. 170. [lxvi.] if a vessel, not actually arriving at her port of original destination, excites an honest suspicion in the mind of the Collector, that her demand of a permit to land the cargo was merely colourable, this is not a termination of the voyage so as to preclude the right of detention. Under what circumstances the Collector has a right to land the cargo of the vessel thus detained.

THIS cause was argued by the Attorney-General March 12th. for the plaintiff in error, and by Mr. Webster and Mr. Wheaton for the defendant in error."

a They cited Otis v. Bacon, 7 Cranch, 596. Crowell v. M'Faddon, 8 Cranch, 98. Slocum v. Mayberry, 2 Wheat. Rep. 11.

1821.

Otis

v.

Walter.

March 16th.

Mr. Justice LIVINGSTON delivered the opinion of the Court.

This is an action of trover brought by the defendant in error, against the plaintiff and others, in the Court of Common Pleas, held at Boston, within and for the county of Suffolk, to recover the value of eighty-six barrels of flour, and sundry other articles, in which judgment was recovered against the plaintiff in error, from which judgment there was an appeal to the Supreme judicial Court, which is the highest Court of law in the commonwealth of Massachusetts, in which judgment was rendered against the plaintiffs in error, for the sum of $2,488 75 cents, and costs of suit, and in favour of the other defendants. On the judgment, the defendant below, William Otis, has prosecuted a writ of error to this Court, under the 25th section of the Judiciary Act of the United States; and we are now to decide whether there was any error in the direction given by the judge before whom this action was tried, and which appears on the bill of exceptions attached to the record in this cause.

The property in question had been seized by William Otis, as Deputy Collector of the customs for the port and district of Barnstable, in the commonwealth of Massachusetts, under the 11th section of an act in addition to the act, entitled, "An act laying an embargo on all ships and vessels in the ports and harbours of the United States;" and the several acts supplementary thereto, and for other purposes, passed the 25th April, 1808. On the bill of exceptions, the following facts appear. On the part of the

plaintiff, Lynde Walter, it was proved, that the goods mentioned in the declaration were his property; that they were put on board of the sloop Ten Sisters, at Ipswich, in Massachusetts, bound for the port of Yarmouth; that it was agreed or understood between Walter and Hallett, who was master of the sloop, that the latter was to carry said goods to Barnstable, or to a place called Bass river, in Yarmouth, with orders to sell the same, provided he could obtain a certain price fixed by Walter, otherwise to deliver them to Freeman Baker, of Yarmouth; that said sloop, on the 19th November, 1808, cleared out at Ipswich, to proceed to the port of Yarmouth, as expressed in the clearance obtained from the Collector at that place; that said sloop proceeded round Cape Cod to Hyannis, in the town and district of Barnstable, and the master applied to William Otis, a deputy Collector for that port and district, for a permit to land the cargo, which he refused to give, but ordered him not to discharge any thing from the sloop, until he should have a permit so to do. That in a day or two afterwards, Otis came on board the sloop with four men, and seized sloop and cargo, and putting a pilot and crew on board, he sent her to Falmouth, in the district of Barnstable, where Otis had the cargo discharged and stored, in, and under a dwelling-house in Falmouth: the master forbidding Otis to meddle with the sloop or cargo. The master also exhibited to Otis his manifest, and swore to the correctness of the same.

On the part of Otis, it was proved, that he was deputy Collector for Barnstable-that on the 29th No

1821.

Otis

V.

Walter.

1821.

Otis

V.

Walter.

vember, 1808, he duly reported to the President of
the United States, the detention of this sloop and
her cargo, under and by virtue of the act abovemen-
tioned, which detention was confirmed and approved
by the President, on the 8th of December, 1808.
That the sloop, when seized, lay at anchor about half
a mile from the shore or beach, which is in the town
and port of Barnstable, near the centre thereof, six
miles distant from Bass river, on which Freeman Ba-
ker's house and store are situated, and about five
miles from the harbour of Yarmouth. That Free-
man Baker's landing is situate above a quarter of a
mile from the mouth of Bass river, on said river, in
the town of Yarmouth, about six miles and an half
by water, from where the sloop was seized, and lies
to the eastward of Point Gammon. Hyannis, where
the vessel was seized, is westward of Point Gam-
mon, and in the town of Barnstable. That the
sloop, when seized, had not arrived at the harbour of
Yarmouth, but was lying in the port or harbour of
Barnstable, about three miles from the harbour of
Yarmouth, which lies east north east from the port
of Barnstable, and the sloop on her way from Ips-
wich to the place where she was seized, passed the
place for which she was cleared, because the weather
would not permit the master to get her either into
the harbours of Bass river, or Gage wharf, and be-
cause he lived near Hyannis, and wished to see his
family, and to lay his vessel in a safe place, and to
land certain articles of bedding, &c. from the vessel,
as it was his intention to strip the vessel when she
arrived at Yarmouth. After the master arrived in