Opinion of the Court.

that during all this time he made no complaint of any defi ciency in the quantity, nor of any other fault which he found in regard to the property received by him from Lawson. It is true that this consideration is not conclusive, as the contract still remained an executory one, the title remaining in Lawson as security for the unpaid purchase money, but it affords a strong presumption that with such a large deficit Floyd had ample opportunity to discover that there was only about twothirds of the quantity which he claimed to have purchased, and that if he had understood the contract as obliging Lawson to convey or make good to him the full amount of one thousand acres of land he would long before have ceased to pay Lawson that which he did not owe him, under the construction of the contract which he now asserts, and would not have submitted to a forced sale of the property by Johnston to raise money for that purpose.

Nor do we think it unimportant to consider that this compromise agreement of 1871, made fourteen years after Floyd was in the full possession and actual control of the land, and executed in an adjustment of a suit for the very purchase money, which Floyd now seeks to recover back, must have been made with a fair knowledge of the location, boundaries, and description of the land in controversy, and that it was determined at that time to describe it with more particularity as to metes and bounds, and to reject a phrase by which Lawson might have been bound for a thousand acres, substituting in its place an expression which left it in the form of a conjectural estimate of the quantity therein contained.

Under all these circumstances we are of opinion that Lawson is under no obligation to make good the difference between the amount of a thousand acres and the quantity found within the boundaries by actual survey. The decree of the court, based upon the erroneous idea that he should be held so accountable, must therefore be reversed.

As this error pervades all the accounting, and all the reports of the referees to state the accounts between the parties, it is not possible for this court to make a correct accounting and state what the decree should be, taking into consideration the cross-bill and the original bill.

Statement of the Case.

The case is therefore

Remanded to the District Court, with directions to take an account on the principles here established, and to render a decree accordingly.

INLAND AND SEABOARD COASTING COMPANY v.

ERROR TO THE SUPREME

HALL.

COURT OF THE DISTRICT OF COLUMBIA.

Submitted December 22, 1887. - Decided January 9, 1888.

An appeal lies to the general term of the Supreme Court of the District of Columbia from a denial by that court in special term of a motion for a new trial, made on the ground that the verdict was against the weight of evidence.

Metropolitan Railroad Co. v. Moore, 121 U. S. 558, affirmed to this point.

CASE to recover damages for injuries caused to plaintiff by defendant's negligence. Verdict for plaintiff for $4000. Defendant thereupon moved for a new trial on exceptions taken at the trial, and also on the following grounds: (1) Because the verdict was against the weight of evidence. (2) Because the verdict was against the instructions of the court. (3) Because the damages awarded by the jury were excessive.

This motion was heard by the justice before whom the case was tried and was overruled, and from the order overruling and denying the motion an appeal was taken to the court in general term. The order and appeal are as follows:

"The motion for a new trial coming on to be heard upon the pleadings, testimony, and rulings of the court, as set forth in the pleadings, and the stenographic report containing the whole of the evidence in said case, and being a case stated, said report being filed herewith and made Exhibit A, the same is overruled, and from the order of the court overruling said motion the defendant hereby appeals to the court in general term.

"By the court.

"MACARTHUR, Justice."

Opinion of the Court.

The court in general term dismissed the appeal, and entered the following judgment:

"Now again come here as well the plaintiff as the defendant, by their respective attorneys; whereupon it appearing to the court the order of the court below overruling the motion for a new trial on a case stated upon the ground that the verdict of the jury was against the weight of evidence is not an order from which an appeal lies to this court; and it also appearing to the court that the plaintiff's exceptions to the admissibility of evidence and to the rulings of the court were not well taken, the said appeal is hereby dismissed, and the motion for a new trial on exceptions is now overruled, and the judgment of the court is affirmed, with costs."

The defendant then sued out this writ of error.

Mr. Nathaniel Wilson for plaintiff in error.

Mr. L. G. Iine and Mr. Sidney T. Thomas for defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This judgment is reversed on the authority of Metropolitan Railroad Co. v. Moore, 121 U. S. 558, and the cause remanded with directions to take further proceedings therein in accordance with the opinion in that case, that is to say, to consider the appeal from the order at-special term denying the motion of the Inland and Seaboard Coasting Company for a new trial, made on the ground that the verdict was against the weight of the evidence.

Reversed.

Counsel for Parties.

GLEN v. FANT.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Submitted January 4, 1888. - Decided January 9, 1888.

A stipulation, made before judgment in the court below, that "in the Supreme Court of the United States this cause shall be submitted to the court without any oral argument, either side, however, having the right to file a printed brief or briefs," is not a submission under the 20th Rule; and, under such a stipulation, this court will not apply that rule to the case on the suggestion of one of the parties against the protest of the other.

MOTION TO SUBMIT this cause under Rule 20. The motion was founded upon a stipulation entered into between the attorneys for the plaintiff and the defendant in person, in the court below, before trial there, the material clauses in which stipulation were as follows:

and court

"Said cause shall be heard upon the agreed statement of facts hereto annexed as a part hereof. Said cause may be submitted to the court and heard and decided by the court (without any jury) upon said agreed statement of facts may be certified to the general term of this and if not so certified an appeal may be taken by any party from the decision or judgment of the Circuit Court to said court in general term, and that in case of such appeal no bond shall be required and that either party to this cause may take an appeal or writ of error from the decision of said court in general term to the Supreme Court of the United States, and that in that event said cause shall be heard and decided in the same manner by the Supreme Court of the United States. That in the Supreme

.

Court of the United States this cause shall be submitted to the court without any oral argument, either side, however, having the right to file a printed brief or briefs in the Supreme Court of the United States."

Mr. Henry Wise Garnett for the motion.

Counsel for Parties.

Mr. Martin F. Morris, opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This motion is denied. While the stipulation binds the parties to submit the cause without oral argument, there is nothing which requires this to be done at any particular time. Its terms will be fulfilled if the submission is made when the case is reached in its order. As no reference is made to Rule 20, we cannot apply that rule to the case on the suggestion of one of the parties against the protest of the other.

Denied.

NEW ORLEANS PACIFIC RAILWAY COMPANY c. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

Submitted January 6, 1888. - Decided January 16, 1888.

Under the provision of the act of July 31, 1876, c. 246, 19 Stat. 121, “that before any land granted to any railroad company by the United States shall be conveyed to such company, or any person entitled thereto under any of the acts incorporating or relating to such company, unless such company is exempted by law from the payment of such cost, there shall first be paid into the Treasury of the United States, the cost of surveying, selecting and conveying the same by the said company or persons in interest," the New Orleans Pacific Railway Company, as the owner, by conveyance from the New Orleans, Baton Rouge and Vicksburg Railroad Company, of its interest in the land grant made to the latter company by § 22 of the act of March 3, 1871, c. 122, 16 Stat. 579, was bound to pay the cost of surveying the land, before receiving a patent for it, although such cost had been incurred and expended by the United States before March 3, 1871, the construction of no part of the road having been commenced before the expiration of the five years limited for the completion of the whole of it.

APPEAL from a judgment against the petitioner in the Court of Claims. The case is stated in the opinion of the court.

Mr. John S. Blair, Mr. John F. Dillon and Mr. Wager Swayne, for appellant.