dissented. He observed, that the expressions in the certificate and grant of Selby’s Marsh, “unto the land of John Watkins and Jeremy Hassling,” terminated the course, and the home line then *270commenced; that the after expressions, “then with, the said land,” had no operation.
The allowance of aWftneis who was summoned, theSl,Si's°notio he taxed in the reeted,UonCai>])1i-canon', by the 'C0Ul'c Shauffl, for the Appellant, (on theJirst bill of ex* ceptions.J The act of 1715, eh, 45, (since repealed,) authorised the appointing commissioners for the purpose of ascertaining the bounds of lands, and certain proceedings under that act, which had been placed on record, were read in evidence at the trial in the court below, although objected to by the plaintiff. It was not the original, but a copy put upon, and read from the record, which was permitted to be given in evidence. These proceedings do not show that the requisite .notice required by the act had been given. The act directed, that on application to the commissioners they were to give notice to the party against whom the complaint is made, and issue subjitenas for witness^ es, &c. The commissioners were to decide on and fix the bounds of the land according to the proof and circumstances, and cause plots and certificates to bo made, one of which to be entered in a book to be pro-, tided for that purpose, which book was to be lodged with the clerk of the county. There was no appeal or review allowed from the decision of the commissioners except in the manner expressed in the act, which was, that any person aggrieved might have a commission of review, and from such review might appeal to the king in council if his pretensions amounted to <$300 sterling. It does not appear that the party against whom the adjudication was made had notice; nor were the lessors of the plaintiff in this cause a party in that adjudication, nor do they claim tinder either of the-parties thereto. The proceedings therefore ought not to have been read in evidence against the plaintiff in the court below. Independent of these objections, the act does not authorise the recording the depositions of the witnesses; and the evidence taken by the commissioners is not a matter necessary to be p.ut on record; nor is there any authority given to them to reduce into writing the depositions of the^ witnesses. By subsequent laws, appointing commissioners for similar purposes, authority is delegated to them to reduce into writing what the witnesses may declare. It was judged necessary to give that power by the act of 1723, ch. S, which ivas to perpetuate testimony, whereas the act of 1715, ch. 45, was to settle disputes concerning the bounds of lands, and the adjudications of the commissioners, and the plots and certificates of the lands, were to be entered on record. As the act did not au-thorise the reducing the evidence into writing, or its being recorded, and as the commissioners have done that which they were not authorised to do, their whole proceedings are void, An act delegating a special authority should be strictly pursued, and this court willjgive it a rigid construction. Weems vs. Disney, (4 Harr. & M'Hen. 156.)*270The plaintiff excepted to the opinion of the court. Yerdict and judgment for the defendant. The plaintiff appealed to the court of appeals (a).
*271But taking it for granted that tbe commissioners did give tbe notice required, and had authority under tbe act to reduce the evidence into writing, and cause it to be entered on record; yet, if such evidence was improper to go to the jury, the court below erred, and their judgment must be reversed. It will be perceived that the evidence in one of the depositions is, that the deponent had been told by Brewer and Ileth-coal, that a certain tree was a bounder of tbe land, and it does not appear on tbe deposition that at the time it was taken, either Brewer or Ilethcoat was dead; nor was there any evidence given at tbe trial that the person was dead whose deposition was read in evidence. There being no such proof, the deposition was not proper testimony to go to the jury. If the language of a deposition does not make it legal evi-*272derice, it certainly cannot be admitted. The deposi-itself must carry with it its own marles of being good evidence. On the face of one of the depositions the evidence is not legal and proper, being hearsay evidence from a living person, from any thing that appears to the contrary. The death only of the person, whose words are related, makes the evidence legal. It must therefore appear upon the face of the deposition, that the person is dead who gave the information to the deponent; and it must also be proved, that the person whose deposition is offered in evidence is dead, or it cannot be admitted.
As to the second bill of exceptions. The plaintiff claims Brown’s Discovery, for which the ejectment was brought, and the defendant took defence for Sel-by’s Marsh. The location of Brown’s Discovery on the plots is not controverted, and the plaintiff has made title to it. He must recover unless there is, some elder tract which includes the land. Selby’s Marsh is an elder tract, but the location of it is not warranted by the grant. It was surveyed the 25th of September 1652, and Hazeling’s land was surveyed Ihe 20th of October 1652. The location of this last tract on the plots is admitted. In the location of Selbtj’s Marsh on the plots by the defendant, the beginning is at 34 and runs to 35, 20, 21 to 36, where it intersects the land of Watkins and Hazeling. The line from 21 running ESE. 110 perches to Watkins and Hazeling’s land at 36, is elongated 428 perches, being 258 perches more than the course called to run. The line can only be elongated to reach the land called for, and then with that land, which goes to figures 31 on the plots. There is no legal location of Selby’s Marsh. The location on the plots must correspond, with the expressions in the grant; and there are no courses and distances expressed in the grant which, will carry it from figures 37". There is no imperative call to carry it from 37 to 34; for the expressions ‘‘with the said land,” will never take the line to the beginning at figures 34, as the land called for lies in another direction. The court below decided that *273Selby’s Marsh was truly located by the defendant, if the jury believed that the beginning of that tract was as the'defendant had located it.
Two questions occur — 1st. Can the gránt be located? And 2d — Is the location made by the defendant the true one?
The tract of land called Selby’s Marsh has no connecting home line, and therefore nothing passed by the grant. If it has a connecting line, it must be a straight line to the beginning, and cannot be run with the meanders of the rivex*, when it is not expressed in the grant that it shall so run. Every grant is to prevail according to the words of it, and the court cannot go out of it unless there is uncertainty. The description may be so loose as to pass nothing. This grant may possibly be located in some way, but not in that which has been made of it. A grant shall be void, if it be totally uncertain. 3 Com. Dig. tit.Grant, (E. 14,) 445. But generally the King’s grant will be void for uncertainty. Ib. (G. 6,) 449. if a grant be incertain altogether, and have not sufficient certainty in it, and cannot be made certain by some matter ex -post facto, it is void. Shep. Touch. 250. The principle is, that if a grant is uncertain on the face of it, arid cannot be made certain, it is void. If there is nothing on the face of it by which it may be rendered certain by matter ex post facto, it is void. The lines of Selby’s Marsh can never get to the beginning by running with the land of Watkins and Handing; and it cannot meander with the river or Sel-by’s bay to the beginning, there being no given line. The expressions in the grant are doubtful, and therefore it should have been left to the jury to determine the location. This court has said, in the case of Dorsey vs. Hammond, (Ante 190,) that similar expressions used in a grant was a matter of fact for the consideration of the jury; and the present cannot be distinguished from that case, as it .regards the construction of the grant of the land called Dryer’s Inheritance; for there the course left the river, and then came l'ound again to the river, bounding thereon, and thence by a straight *274line to the beginning, without saying bounding on the river. The court below determined that the course should not run with river, but should run with a straight line to the beginning. This court overruled that decision, saying it was a matter for the jury to determine whether the course should run with the river, or with a straight line to the beginning. So in this case the court ought not to have decided that Selby’s Marsh bounded on the river. This is a more doubbul case than that of Dorsey vs. Hammond; for the court below were not unanimous in the construction given to the grant. Mr. Duvall, one of the judges, was of opinion that the land did not bind on the river, but that it should be run with a straight line to the beginning. Why say the river shall bind when the grant does not say it shall? What is there in this grant to prevent the land running with the home connecting line? A location must be made to find where the river is; and to'find the river you must go out of the grant. The case of Helms vs. Howard, (2 Harr. & M'Hen. 57, 83,) depended upon the construction of the grant of Cole’s Harbour, which is said to run “W. to the month of a small gut, and over the said gut, and bounding on the NW. branch, for the length of 320 perches,” &c,. and the court there said, it was a matter of fact for the jury to say whether the line should run with the KW. branch, or run course and distance. In this case the plaintiff below prayed the court to direct the jury, that the defendant liad not properly located Selby’s Marsh; but the court rejected the prayer and went further, and decided that the defend mt had located the land right, when they ought to have left it to the jury to determine what was the true location. By this opinion of the court below, the plaintiff was precluded from giving the most positive evidence of a different location.
Mdgely, on the same side. The question between the parties was a question of location, and not a question of law; and even if the general court were of opinion that the defendant’s location was right, it was proper for the jury to decide that fact, and the direction of the court was wrong. If the jury had found the true location of the beginning and of the rivey, there was still a doubt about the location. The expression “and with the said land,” left it doubtful how the land should be located; but the court said the land was truly located if all the circumadjacent lands, &c. were truly located. Martin, (Attorney General,) and Key, for the Ap-pellee. First bill of exceptions, — Under the act of 1715, ch. 45, the commissioners were constituted a court to act in a summary way. It was a court of competent jurisdiction, empowered to give judgment, put the party in possession, and give costs, from whose decision there was no appeal, except in a certain method, and the judgment of the commissioners could be reversed only in the manner prescribed by the act. The record of their proceedings is evidence, and this court has no power to inquire into the regularity of the proceedings of the commissioners who acted as a court. It is not necessary to shew that a subpoena issued; it must be taken for granted that the party against whom the complaint was made had notice. The commissioners under the act of 1786, ch. 33, for marking and bounding lands, have only a special authority, and do not act judicially, so that the decision in the case of Weems vs. Disney does not affect the present case. The act of 1715, ch. 45, directs that the plot shall be recorded.- It was to be made by the surveyor under the directions of the commissioners, and being approved by them, the act directed it to be recorded. The testimony was taken by the commissioners, and of course it ought to be recorded. A cotemporary exposition is the best evidence of what the act required to be done, Jt was a beneficial law for settling disputes relative to the bounds of land. The party was enabled to hold according to the decree of the commissioners. The testimony must be recorded, for the evidence was to be considered on the review of other commissioners to be appointed, or on appeal to the King in council,, di» rected by the act, in case either party was aggrieved ^ the determination of the commissioners. And how delusive to give an appeal, unless the evidence was to go up on the appeal to the Ring in council? The commissioners were constituted a court of record for a special purpose. Having considered the proof and allegations of the parties, and the circumstances in the case, they were to award, &c. There were three plots to be made, one for each party, and the third to be recorded; and the judgment of the commissioners of the bounds ascertained by them of the land in dispute, to be and remain the certain and undoubted hounds of the land for ever. And the commissioners might put the plaintiff or defendant into possession, and might assess damages and costs. The record is conclusive, and from such decree there can be no review or appeal, except in the manner expressed in the act. On the first decision made by the commissioners, there was no appeal to any court of justice; there was first to be a review by other commissioners, after which there might be an appeal to the King in council.The defendant produced to the court below the original depositions. It was then of no consequence whether they had been taken by a competent authority or riot. The commissioners had a right to examine witnesses, and the original depositions takep by them may be read in evidence. It was the original depositions, being the original record in which the depositions were written, as taken down by the commissioners, which the defendant offered in evidence in tiie court below. Although it does not appear that Brewer and Hethcoat were dead, it did not appear that they were living; and it may be as strongly presumed that they were dead at the time the deposition'of the witness was taken, as that they were living. But if they were then living, it was good testimony if they were dead when the deposition was offered in evidence, because it was the best evidence which could be found. If Brewer, the deponent, had been alive, he would have been examined at the trial; and the presumption *277is that he was then dead. The deposition was taken in 1717, and the trial in 1802. He was an old man when the deposition was taken, and if alive at the trial he would have been at least 140 years of age. A person being alive does not weaken the weight of the testimony derived from another, or make it less true than it would be were he dead at the time when the testimony is offered in evidence.
Second bill of exceptions. It is contended by the counsel for the appellant, that the grant of Selby’s Marsh is nil operator, because there is no given line. The expressio of that which the law implies is always included. The court will be astuti to give it effect. The subject matter is to be considered, and the certainty requisite in deeds is to a common intent. Extraneous matter may be resorted to, to give a deed operation. Suppose a tract of land is said to begin at the mouth of a creek, and run to the opposite point, and with the creek to the beginning — Here is no certainty on the face of the grant, and you must go out of it to identify the land. If a grant can be made certain by matter ex post facto, testimony may be resorted to for that purpose. The counsel for the appellant admits there may be some location made of the land,* but he has not pointed out how it is to be made. The survey cannot be closed without going round to the water. The meaning of the grant is to run with the land of Watkins and Handing to the water, and then with the water to the beginning, and the land has always been so held. Unless that construction is given, no land will pass. It is not contended but that the expressions in the grant may be doubtful; yet the power of the court is twofold as to evidence. They may direct what is proper evidence to go to the jury, and may, when the evidence is given, determine whether it is sufficient for the jury to find upon. The only question in this case is, whether upon the evidence offered, the jury ought to have found the location in the manner they did? If the court have directed them to find the location as they ought to find it, then the opinion is to stand. If there is a *278possibility of closing a survey so as to make the grant effectual, the court will so direct it to close, rather than the grant should be ineffectual, and they will make such construction of the grant as will make it effectual. This grant must conclude in one of two ways, either by running with a straight line to the beginning, or with the river to the beginning. When the course comes to the land of Watkins and Ha&eling it is ambiguous how far it is to run with the said land; that ambiguity is removed immediately the location is reduced to paper; and then the court will direct the jury in what manner the land is to be located. If a tract of land begins at the side of a water, and then, runs off from the water certain courses, and then comes down again to the water, the water will of course be the bounder and barrier of the land. The land for which the ejectment was brought in this case was tak- • en up 110 years after Selby’s Marsh was taken up, and the last mentioned tract has always been held as the defendant has located it. The grant states that the land is lying on the west side of South river. The beginning is at a tree on the side of South river, and ■ the land runs from the river round until it again meets the river. The river surely then must be the home line. That location, which is most beneficial to the grantee, is to be allowed where the location is doubtful. The general court decided, that if the jury believed the tree at the water side to be the beginning of the land, and that it run till it came again to the water side, then they might find the defendant’s location run- • liing with the meanders of the river to the beginning. There is no uncertainty in the grant of Selby’s Marsh. There is no necessity that lines should be expressed when they are implied in the antecedent lines. The expression of the land lying on the western side of Selby’s Bay, implies that the land has an eastern boundary, and that Selby’s bay must be its boundary. The defendant’s location begins at the edge of Cop-ling’s creek, and runs round to Meade’s creek, having that creek and Selby’s bay as the eastern boundary. The decisions cited do not touch this case. Here the *279court instruct the jury; that the defendant’s is a true location of the land, if they find the beginning andx Copling’s creek are truly located by the defendant. Vv hat was the intention of the grant? It says that the land is to run until it strikes Watkins and Hazeling's land, and then the expression is “and with the said land.” The defendant’s location makes the land run with the land of Watkins and Hazeling, till it conies to the creek, (which must be its bounder though not called for,) and then along the creek, bounding on the creek from which he had begun, to the beginning. In the case of Helms vs. Howard, the binding expression, and the course and distance, were contradictory. If the course run west 320 perches, then the binding expression, bounding on the NW. branch, could not be complied with. Here there was an ambiguity, and a proper subject for the jury to decide. But in the grant of Selby’s Marsh there is ■no such ambiguity. In the case of Dorsey vs. Hammond the question was, whether in the grant of Dorsey’s Search, where the first line had a binding expression, there was a continuity of it in the other lines? This was to be determined as a matter in pais, and the jury were considered the proper judges of it. That question does not apply to this case, where tiie court permitted evidence to go to the jury, and give their opinion hypothetically upon the facts to be found by the jury. But in the case of Dorsey vs. Hammond the court would'suffer no evidence at all to go to the jury. There is no analogy between the grants of Selby’s Marsh and Dryer’s Inheritance. A general intent may be restrained by particular expressions. The general intent is restricted by the expressions in Dryer’s Inheritance of «a straight line to the beginning;” hut in this case the general intent is not restricted by the expression a straight line to the beginning.
Shaaff and Johnson, in reply. 1. The plaintiff claims no title to the land mentioned in the petition upon which the commissioners acted. He and those under whom lie claims are strangers to the proceedings and could not appeal from the decision. The record cannot on that ground be evidence against him. The proceedings of the commissioners are not conformable to the act of 1715, ch. 45. No person could appeal from such a judgment but one of the parties — Is all mankind to be concluded? Under the act of 1786, ch. 33, for marking and bounding lands, notice was deemed necessary in the case of Weems vs. Disney.In the case of West vs. Hughes, (Ante 6,) where there had been a mistake in a fierifacias issued by a justice of the peace, there being no return day mentioned therein, this court determined the> fieri facias was illegal. The proof before a justice of the peace in cases before him, is not to be on depositions. His decision is conclusive, if there is no appeal, and yet this court decided that an execution issued byhim was illegal. It does not appear from the deposition, that the persons from whom the deponent received his information, was dead. Nor does it appear that the deponent, whose deposition was read in evidence, was also dead. It is a rule that hearsay cannot be admitted as evidence unless the person from whom the information was received was dead at the tin/e of the examination of the witness. Nor can the deposition of a witness be read, if objected to, unless there be proof that he is dead. If such evidence is offered, the party offering it must bring himself within the rule.
2. As to the second bill of exceptions. It is admitted as a settled principle, that grants are to be construed most favourably for the grantee. In this case the expressions in the grant of Selby’s Marsh are, running till it comes to the line of the land of Watkins and Haaeling, and then running with the said land. If it runs with that land, it will never find the beginning. The plaintiff contended it should run to the beginning by a straight line from the land of Watkins. and Ha~ «¡cling. But the court directed the jury, that if they found the beginning and the water, as located by the defendant to be correct, then the line should run with the water to the beginning,, A grant is for land with*281in certain courses and distances, or descriptions; and if no land is contained in any such courses and dis-tanc.es or descriptions, then nothing will pass by the grant, and it is a nullity, because of uncertainty. The grant of Selby’s Marsh calls regularly for a western, a southern, and a northern bounding, but it does not call for an eastern bounding. By running the lines according to the grant there will bé no land included within the lines. But the appellee’s counsel contend, that by locating the land it will evidently appear by the plots that the water is the eastern boundary of the land by which the survey must be closed. This is begging the question. It must appear by the grant that it was to be so located. The expression in the grant of Dryer’s Inheritance, in the case of Dorsey vs. Hammond, is ‘’all that tract of land lying on the west side of Patuxent river;” and the expressions in the grant of Selby’s Marsh are, “lying on the west side of Chesapeake bay, and on the west side of South river of that bay,” and this court decided in the former case that the jury were to ascertain the true location of the land. Ocre the expressions being similar, the jury are the proper tribunal to decide, if according to the decision of this court as to the grant of Dryer’s Inheritance, one line of Selby’s Marsh ran bounding on the river and then to the beginning, it would be for the jury to ascertain its true location. How much more then ought the, jury to determine the loca* tion on the expressions as used in the grant of Selby’s JHarshi The attorney general argued in this court, in the case of Dorsey vs. Hammond, that running with a straight line to the beginning, made the form of the. ¡and, and that all the land between that line and the course of the water, was conveyed by virtue of the expression, “all that land lying on the west side of Patuxent river.” The time location of the branch called for in Selby’s Marsh might have been different at the time the land was taken up. This is a matter of fact to be ascertained by tiie jury alone. It is a fact, which might have varied the loca» 41011.
*282The Couht or Appears* at June term 1804, reversed the judgment of the General Court, dissentingfrom that court in the opinions expressed in both of the bills of exceptions. The opinion in the first bill of exceptions was dissented from, because the deposition of William Brewer was permitted to be read in evidence to the jury, it not being stated that he was dead; and the opinion in the second bill of exceptions was dissented from for the reasons stated in the case of Dorsey vs. Hammond, that it was a matter of fact for the jury, and not for the court to decide.
PROCEDENDO AWARDED.
In this case witnesses had been sulpenmd by the defendant, who were not sworn at the trial. By the Court — It will be a good general rule not to tax in the costs the allowance made to a witness for his attendance, who was not sworn on the trial. The court will, on affidavit, decide whether a witness not sworn at the was neccssai7 to be subpen&a; and if it appears to them that it was necessary, they will then order the allowance made for the attendance of suph witness to be taxed in the costs of suit.