creek empties into the Guyandotte river; the existence of bottom. land on the Guyandotte river below the mouth of Gilbert creek; the existence at one time of three marked sugar trees about 20 poles below the mouth of Gilbert creek. The testimony of the three surveyors, Sells, Mathews, and Reynolds, tended to prove that but few of the natural monuments called for along this line were missing, and that Turkey creek emptied into Sandy river at the point where this line is described as crossing that river. Two objects called for on this line, to wit, Buffalo and Pigeon creeks, are not found, though the evidence tends to prove that two streams were crossed at the points indicated, corresponding to the calls for Buffalo and Pigeon creeks. The testimony relating to these natural objects so found, as well as that relating to those not found, should have been considered by the jury, in connection with all the other evidence, for the purpose of enabling them to correctly locate the lines of the grant; and it was error, we think, to advise the jury that said monuments did not exist or were not found as called for, and that therefore they were called for through ignorance or mistake. This part of the instruction is applicable to all the lines of the survey, and tended to mislead the jury; and, besides, it is a mistake to say that "all the evidence upon the point, on the part of both plaintiff and defendants," tended to show that the monuments called for were mentioned through ignorance or by mistake. Some of the testimony was offered for the purpose of proving the contrary, and has that tendency.

With evidence tending to prove the existence of the natural monuments as called for in the grant, the court below, under the impression that such objects had been mentioned by mistake and in ignorance of their true location, and most likely under a misapprehension of the true weight of that part of the testimony, instructed the jury, in substance, to disregard such objects, and to locate the grant by course and distance. The instruction as given by the court below means that, unless the natural objects called for are in accord with course and distance, then such natural objects must be disregarded, and the line located by course and distance. In this the court was in error. It is quite well established, and is now, we think, the universal rule, that a call for a natural object, such as a river, a creek, the mouth of a stream, a hill, a dividing ridge between designated localities, a marked tree, shall control both course and distance. The reason for such a rule is quite apparent. The natural monuments referred to are objects indicating the boundary of the land, are generally easily found, and are, with few exceptions, indestructible. Course and distance are usually descriptive of the designated monuments, depending for their accuracy upon the skill and experience of the surveyor. In Newsom v. Pryor, 7 Wheat. 7, 10, 5 L. Ed. 82, Chief Justice Marshall used this language:

"The most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance."

In locating the lines of surveys and grants, the following rules, applied in the order named, have generally been observed by our comis

of last resort: First, natural monuments; second, artificial marks; third, adjacent boundaries; fourth, course and distance. Hutch. Land Tit. 530; Dogan v. Seekright, 4 Hen. & M. 125; Doe v. Payne, II N. C. 64, 15 Am. Dec. 507; McIver v. Walker, 9 Cranch, 173, 3 L. Ed. 694; Elliott v. Horton, 28 Grat. 766; Trust Co. v. Foster, 78 Va. 413. In Higueras v. U. S., 5 Wall. 827-835, 18 L. Ed. 469, Mr. Justice Clifford said:

"But ordinarily surveys are so loosely made, and so liable to be inaccurate, especially when made in rough or uneven land or forests, that the courses and distances given in the instrument are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and boundaries referred to as identifying the land. Such monuments may be either natural or artificial objects, such as rivers, streams, springs, stakes, marked trees, fences, or buildings."

Washb. Real Prop. (2d Ed.) 673; Preston v. Bowmar, 6 Wheat. 582, 5 L. Ed. 336; Marshall v. Currie, 4 Cranch, 176, 2 L. Ed. 585; Purinton v. Sedgley, 4 Me. 286; Howe v. Bass, 2 Mass. 380, 3 Am. Dec. 59; Bosworth v. Sturtevant, 2 Cush. 392; Jackson v. Ives, 9 Cow. 661; Newsom v. Pryor, 7 Wheat. 10, 5 L. Ed. 382; Ricks v. Johnson, 5 N. H. 542.

The defendant in error claims that the facts as disclosed by the testimony make this case an exception to the general rule that monuments shall prevail over course and distance, and the insistence is that the surrounding and connecting circumstances relating to the survey and the intention of the parties render it apparent that the courses and distances called for are more reliable and certain guides to the true location of the grant than are the natural objects mentioned in it. We do not think so. We do not find anything in the description. of the land which shows that the courses and distances are right in themselves. On the contrary, all of the surveyors who testified advise us that they are not correct. Nor do we find that the evidence conclusively shows that the original surveyor was mistaken as to the location of the monuments called for, or ignorant of the geography of the territory in which he was surveying. He seems to have located his natural monuments as correctly as was customary in the day in which he lived, and the researches made by his successors of the present day rather tend to demonstrate that he was not deficient in geographical information. He seems to have made a mistake in his mathematics, and to have run the boundary lines of his survey so as not to have included the area intended; but that is immaterial, if it is made to appear that the natural objects called for were really in existence at the time of the survey, that their location was known to the surveyor, or that he was at them during the time of the survey, and marked them or called for them as lines or corners thereof. It should in this particular be remembered that quantity is the least. reliable, and the last to be resorted to of all the descriptive portions of a deed or grant. It is only in cases where there is a lack of description, because of the want of course and distance, or where monuments are not called for or are not found, that quantity becomes essential in determining the identity of the premises in controversy. A statement in a grant of the quantity of land supposed to be in

cluded in the boundaries thereof, inserted by way of description, must yield to the description by metes and bounds, rivers, mountains, and other monuments.

The cases cited by counsel for defendant in error, showing that the general rule to which we have referred-that course and distance must yield to natural objects called for-is not inflexible, are not, in our judgment, applicable to the facts of the case we are now disposing of; and therefore it will not be profitable to discuss them, or to consider them further than we have in effect done by determining the questions of law involved in the court's instruction before referred to.

The case must go back to the court below for a new trial. Other questions raised by the assignments of error it will not be necessary for us to refer to, as we have found error in the court's charge directing a verdict, because of which the judgment rendered in the court below must be reversed.

Let the judgment complained of be reversed, and let the verdict returned be set aside, in order that a new trial may be had on the issue joined. Reversed.

CHING v. UNITED STATES.

(Circuit Court of Appeals, Fourth Circuit. November 6, 1902.)

No. 429.

1. CONSPIRACY-SUFFICIENCY OF INDICTMENT.

An indictment for conspiracy to commit an offense against the United States, under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], need not describe the offense which was committed or intended to be committed, as the result of the conspiracy, as fully as would be required in an indictment in which it was the substantive crime charged.

2. CENSUS-FALSE RETURNS-SUPPLEMENTAL RETURNS.

Act March 3, 1899 [U. S. Comp. St. 1901, p. 1346], providing for the twelfth census, authorized a supervisor, acting on advice that names had been erroneously omitted by an enumerator from his schedules, to return such schedules for correction after the expiration of the 30 days prescribed for making the enumeration; and, in making such corrections or any additions to his schedules after their return, the enumerator acted In his official capacity, and subject to the penalties prescribed by section 21 of the act for making false returns.

8. CRIMINAL LAW-INSTRUCTIONS-STATING OPINION AS TO WEIGHT OF EVIDENCE. The action of a judge, in a trial for conspiracy, in expressing an opinion to the jury as to the weight of the evidence, and in intimating what the verdict should be, was not error, where he subsequently charged them that it was not his province to say whether certain evidence was sufficient to prove conspiracy, but that "it always remains finally for the jury to determine whether, by testimony of witnesses, or letters or circumstances, they are satisfied that the combination or conspiracy charged existed."

In Error to the District Court of the United States for the District of Maryland.

Wm. L. Marbury and Adrian Posey, for plaintiff in error.

Morris A. Soper, Asst. U. S. Atty. (John C. Rose, U. S. Atty., on the brief).

13. See Criminal Law, vol. 14, Cent. Dig. § 1995.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge..

GOFF, Circuit Judge. The plaintiff in error was indicted, under the provisions of section 5440 of the Revised Statutes of the United, States [U. S. Comp. St. 1901, p. 3676], charged with conspiring to commit an offense against the United States, with Charles H. Guyther and others, who prior to the alleged conspiracy had been census enumerators, appointed as such by virtue of the act of congress approved March 3, 1899, providing for the twelfth census of the United States. The specific offense charged was the making of a fictitious census return, in violation of section 21 of said act, which reads as follows:

"That any supervisor, supervisor's clerk, enumerator, interpreter, special agent or other employé, who, having taken and subscribed the oath of office required by this act, shall, without justifiable cause, neglect or refuse to perform the duties enjoined on him by this act, or shall, without the authority of the director of the census, communicate to any person not authorized to receive the same any information gained by him in the performance of his duties, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not exceeding five hundred dollars; or if he shall wilfully and knowingly swear or affirm falsely, he shall be deemed guilty of perjury, and upon conviction thereof shall be imprisoned not exceeding three years and be fined not exceeding eight hundred dollars; or if he shall wilfully and knowingly make a false certificate or a fictitious return, he shall be guilty of a misdemeanor, and, upon conviction of either of the last named offences he shall be fined not exceeding five thousand dollars and be imprisoned not exceeding two years." 30 Stat. 1020, c. 419 [U. S. Comp. St. 1901, p. 1346].

The indictment contained a number of counts, the first of which was abandoned by the prosecution; and the plaintiff in error, together with the others who were tried with him, was acquitted of all the other counts, except the fourth, so that only that count is involved in his writ of error. In such fourth count the plaintiff in error is charged with having conspired with said Charles H. Guyther to have him as enumerator make a fictitious return; and it is alleged that, in furtherance of the same, he (said enumerator) entered upon certain schedules which had been furnished him by the supervisor of the census the names of various persons as being residents of his enumeration district on the 1st day of June, 1900, when such persons were not such residents at that time, which was then and there well known to him, which said willful acts on his part were in violation of the statute mentioned. The plaintiff in error demurred to the indictment, assigning as reason therefor that it failed to state that at the time of entering into the alleged conspiracy, and at the time of doing the alleged unlawful acts in pursuance thereof, the enumerator, Guyther, was still holding such official position under his commission of employment. The demurrer was overruled, the defendants then pleaded not guilty, except Guyther, who entered a plea of guilty. A trial was had, and the plaintiff in error was convicted. The court below, in passing judgment on such finding of the jury, sentenced the plaintiff in error to pay a fine of $1,000, and to be imprisoned in the Baltimore city jail for the period of two years.

The assignments of error are numerous, but the disposition of a

few will, in effect, dispose of all of them. They relate-First, to the sufficiency of the indictment; second, as to whether the defendant Guyther, with whom the plaintiff in error was charged with conspiring, was at the time of the alleged conspiracy, as well as at the time of the doing of the overt act relating thereto, still an enumerator, under the provisions of the census act, or whether he had ceased to be such, and was therefore incapable of committing the alleged crime; third, as to the charge of the judge to the jury on the day following that on which the case was submitted to their consideration. As to the sufficiency of the indictment, it must be first noted that the gist of the offense charged is that of conspiracy, which we think is properly pleaded. In such cases the offense which is intended to be committed as the result of the conspiracy need not be described as fully as would be required in an indictment in which such matter was charged as a substantive crime. This indictment alleges that, prior to the commission of the crime charged, the defendant Guyther had been duly commissioned as an enumerator, and that he had regularly taken the oath of office. It also charges that the purpose of the conspiracy between the defendants was to have Guyther, as such enumerator, forward fictitious returns relating to the residents of his district to the census bureau. We think it clearly appears from the indictment itself that the defendants were fully advised of the nature of the offense charged, and of the means by which it was to be effected. Keeping in view the allegations that Guyther had been regularly appointed and qualified as an enumerator before the conspiracy was entered into, and that the purpose of such conspiracy was to have him, as such enumerator, make certain fictitious returns, which are fully set forth, we are of the opinion that all of the defendants were fully advised of the charge which they had to meet, and that it sufficiently appears that Guyther was an enumerator at the time the conspiracy is charged to have been entered into.

Other objections to the indictment have even less of merit than those we have referred to, and were properly overruled. The indictment was well drawn, and the court below did not err in its disposition of the demurrer thereto.

The plaintiff in error insists that there was error in refusing to grant the instructions to the jury as prayed for by him during the trial in the court below,-especially those relating to the contention that at the time of the alleged unlawful agreement to forward the fictitious return to the supervisor, as well as at the time the fictitious entries were made upon the census schedule by Guyther, he was no longer an enumerator, and hence incapable of violating the census act by making a fictitious return as such official, and that therefore the conspiracy alleged was not in violation of any law of the United States. Such instructions were based upon the following facts: That the time prescribed by the census act for making the enumeration required was the 30 days from June 1st to June 30th, inclusive, which period had elapsed before the conspiracy was formed; that the evidence given to the jury disclosed that Guyther had completed his enumeration before the conspiracy was formed, had for