Udall v. Steamship Ohio. 17 H. it accordingly. They knew, therefore, that he looked to this undertaking for indemnity, and not to any conditional liability upon the acceptance. The transaction, therefore, which is brought home to the plaintiffs, lays no foundation, in law or equity, to impeach the paper in their hands. The ruling of the court below, in this respect, was consequently erroneous, and the judgment must be reversed. 18 H. 60; 20 H. 427; 1 Wal. 99; 4 Wal. 572. JAMES UDALL, Libellant and Appellant, v. THE STEAMSHIP OHIO, her Tackle, &c., MARSHALL O. ROBERTS and others, Claimants. 17 H. 17. An appellant cannot sustain his appeal upon the ground that, if interest were added to the balance of account claimed in the libel, more than $2,000 was in dispute, at the time of the decree in the circuit court, unless his libel claims interest. This court will not allow the libel to be amended here, by the insertion of a claim of interest, so as to support the jurisdiction. THE case is stated in the opinion of the court. Cutting, for the motion. Bradley, (with whom was Benedict,) contrà. M'LEAN, J., delivered the opinion of the court. This is an appeal from the circuit court of the United States for the southern district of New York, in admiralty. The libel was filed in the district court, which stated that, in the years 1847 and 1848, the steamship Ohio, then being in process of construction, by Bishop and Simonson, the libellant furnished, at the city of New York, for the building of said vessel, a large quantity of materials, timber, and tree-nails. That said articles, at a fair price, amounted in the whole to the sum of $2,973.57, of which sum there is still due $2,159.28, less tree-nails, which, not having been used, were to be received back by the libellant, amounting to the 18] sum of $468. That the balance of $1,691.28, the owners, or those in charge of said vessel, have refused to pay, &c. The appeal states the claim to be, at the time of the trial in the circuit court, interest included, $2,164.86. The libel was dismissed in the district court, and the case was appealed to the circuit court. In that court, the decree of the district court was affirmed, from which an appeal was taken to this court. A motion is now made to dismiss the appeal, for want of juris. diction. Udall v. Steamship Ohio. 17 H. It is stated by the counsel opposed to the motion, that it is the uniform practice in the southern district of New York, to establish, on the hearing, only the liability of the defendant, and to have the amount of the damages ascertained on a reference to a commissioner, as the proofs in the record are not the full proof as to the amount of the damages. It is not perceived how the practice in the circuit court can affect the question of jurisdiction. The decree of the district court, which dismissed the libel, having been affirmed by the circuit court, we must look to the claim of the appellant in his libel, whether it exceeds the sum of two thousand dollars. The balance of the account claimed, only amounts to the sum of $1,691.86. But it is insisted that, if the interest on this sum be computed, up to the time of trial in the circuit court, the sum would exceed the amount required to give jurisdiction. Where the claim is founded on dollars and cents, whether it be a libel, a bill in chancery, or an action at law, the damages must appear, to give jurisdiction, on the face of the pleading on which the claim is made. No computation of interest will be made to give jurisdiction, unless it be specially claimed in the libel. If not intended to be included in the claim of damages, it should be specially stated. This would certainly be the case in an action at law, and no reason is perceived why the rule should be relaxed in a case of libel. Under the 24th admiralty rule of this court, it is suggested the libel may be amended at any time, as, of course, on application to the court. And if this be necessary, the counsel now moves to amend the libel by inserting, "together with the interest to the time of the final decree in this court, or any appellate court." It has not been the practice of this court to allow amendments, except by the consent of parties; though, in the case of Kennedy et al. v. Georgia State Bank, 8 How. 610, this court say, "there is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments," &c.; but the practice has been to remand the cause to the lower court for amendment. * If amendments be allowed, so as to give jurisdiction to [* 19 ] this court, where there was no jurisdiction when the trial was had and the appeal taken, parties would be taken by surprise, and litigation would be encouraged. The plaintiff, under such circumstances, would never fail to sustain the jurisdiction of this court, on his appeal. On the ground that the matter in dispute does not appear, on the face of the libel, to exceed two thousand dollars, the appeal is dis missed. Olney v. Steamship Falcon. 17 H. JAMES N. OLNEY, Libellant and Appellant, v. THE STEAMSHIP FALCON her Tackle, &c., and GEORGE LAW and MARSHALL O. ROBERTS Claimants. 17 H. 19. The next preceding decision applied to this case. A claim in a libel of "$1,800 and upwards," will not support an appeal. THE case is stated in the opinion of the court. Cutting, for the motion. Bradley, (with whom was Benedict,) contrà. [ *21 ] M'LEAN, J., delivered the opinion of the court. This is an appeal from the circuit court of the United States for the southern district of New York, in admiralty. A motion is made by defendants' counsel to dismiss the appeal, for want of jurisdiction. [ * 22 ] * In the libel," the shipment of a box of merchandise, which was not delivered to the consignee, &c., is alleged, and that the libellant is entitled to recover of said vessel the damages by him sustained, which amount to the sum of eighteen hundred dollars and upwards," &c. The district court dismissed the libel, from which decision an appeal was taken to the circuit court, and that court affirmed the decision of the district court. From this last decision, an appeal has been taken to this court. On the part of the appellant it is stated, that the claim was for eighteen hundred dollars and upwards, besides the interest; that, on the hearing, the libellant claimed the said principal and interest, amounting to two thousand two hundred and fifty dollars, and that he was entitled to recover, on his proofs and allegations, that sum. That this was the claim at the time of the appeal, and that another year's interest has since accrued. And it is contended that the sum sworn to, being eighteen hundred dollars and upwards, was intended to cover the accruing interest. The right of appeal from the circuit to the supreme conrt is given, "where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs." The defendant can appeal, where the judgment or decree against him exceeds the sum or value of two thousand dollars; but an appeal may be taken by the plaintiff where his claim of damages, in the declaration or libel, exceeds the above sum, or where the value of the thing claimed exceeds it, as this is held to be the matter in dispute. Haydel v. Dufresne. 17 H. The appellant, in this case, claims in his libel, which is sworn to, eighteen hundred dollars and upwards. The words, " and upwards," it is said, were intended to embrace the interest, and that, if this be calculated from the time of filing the libel up to the time of the trial, the sum would exceed two thousand dollars. The interest, in an action of this kind, if taken into view, is considered as a part of the damages, being merged in that claim, and is not estimated as a distinct item. The claim of more than eighteen hundred dollars, is too indefinite to give jurisdiction under the act of congress; and the interest not being specially claimed, for the reason stated, cannot be computed. The appeal is, therefore, dismissed, for want of jurisdiction. Gordon v. Ogden, 3 Pet. 34; Scott v. Lunt's Administrator, 6 Pet. 349. MARCELIN HAYDEL, Plaintiff in Error, v. FRANCOIS DUFRESNE.1 17 H. 23. Under the fifth section of the act of March 3, 1811, (2 Stats. at Large, 663,) prescribing the terms on which proprietors of contiguous lands, on a stream, in Louisiana, could obtain titles to adjacent back lands belonging to the United States, where each of two proprietors could not obtain his full quantity by reason of the directions of their side lines, a division between them of such back land, made, in good faith, by the principal deputy surveyor of the proper district, under the superintendence of the surveyor of public lands south of the State of Tennessee, was final, and conclusive upon their respective rights, and cannot be disturbed by any court of justice. ERROR to the supreme court of Louisiana. The case is stated in the opinion of the court. Janin, for the plaintiff. Grailhe, contrà. * 27 ] * CATRON, J., delivered the opinion of the court. The plaintiff and defendant are respectively owners of tracts of land forty arpens deep, situate in a concave bend of the Mississippi River, in Louisiana; their tracts front on different sides of the deepest point of land, and when the side lines of each tract are extended perpendicular to a base line corresponding with the bank of the river, the two tracts interfere before the second depth of forty arpens is obtained. By the 5th section of an act approved the 15th of February, 1811,2 1 Mr. Justice Wayne, having been indisposed, did not sit in this cause. 2 The act intended to be referred to is that of March 3, 1811, § 5, which reënacts this 5th section, but repeals the act of February 15, calling it an act of February 16, (2 Stats. at Large, 619-663.) Haydel v. Dufresne. 17 H. congress provided "that every person who, either by virtue of a French or Spanish grant, recognized by the laws of the United States, or under a claim confirmed by the commissioners appointed for the pur pose of ascertaining the rights of persons claiming lands in [28] the territory of Orleans, owns a tract bordering *on any river, creek, bayou, or watercourse, in the said territory, and not exceeding in depth forty arpens French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of his own tract, at the same price and on the same terms and conditions as is or may be provided by law for the public lands in said territory. And the principal deputy surveyor of each district, respectively, shall be, and he is hereby authorized, under the superintendence of the surveyor of the public lands south of the State of Tennessee, to cause to be surveyed the tracts claimed by virtue of this section. And in all cases where, by reason of bends in the river, lake, creek, bayou, or watercourse bordering on the tract, and of adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants in such a manner as to him may appear most equitable. Those under whom the plaintiff and defendant hold their lands, respectively, availed themselves of the preëmption accorded by this law. The husband of the plaintiff, having 155% acres in his front tract, paid into the hands of the receiver of public moneys, $148.75, for a certificate of the entry of 119 acres of the lands in his rear. Nicholas Haydel, under whom the defendant holds, owned a front tract containing 249 acres, and paid into the hands of the receiver price of 248 acres, for his entry of the back of public moneys the lands, under the law. 48 The whole quantity of land in the rear, subject to their entries, was 322 acres, as to which there was no conflict between them and any other proprietors. Of this quantity the principal deputy surveyor of the United States allotted to Haydel 243 acres, and Dufresne 79%. His survey dividing the land in dispute was part of a township survey, and was approved in March, 1831, by the surveyor of public lands south of the State of Tennessee, and a patent was issued to Haydel for 243% acres of the land, in 1845. The petition charges error in the division, but nothing more, and asks a redivision of the land by the district court, on the sole ground of a vested equity in the plaintiff to forty acres of the land granted to Haydel. It is not alleged that Haydel controlled the surveyor, or |