Goodman v. Simonds. circulation of all the paper in the country, and with it all its commerce; that the circumstance of the bill having been lost, might have been material, if they could bring knowledge of that fact home to the plaintiff. The cases cited, commencing in 1694 and ending in 1801, are sufficient to show what the state of the law was in 1824, when Gill v. Cubitt was decided, especially as the judges of the king's bench, in giving their opinions on that occasion, did not pretend that there were any later decisions in which it had been modified. III. But, assuming that the instruction was erroneous, it is still insisted, by the course of the argument for the defendant, that it was immaterial; and the argument proceeds upon the ground that the case, as made in the bill of exceptions, shows that the plaintiff was not the holder of the bill for a valuable consideration, in the usual course of business. On the contrary, it is insisted that he held it merely as a collateral security for a pre-existing debt, without any present consideration at the time of the transfer, and that a party who takes negotiable paper under such circumstances does not acquire it in the usual course of business, and consequently takes it subject to prior equities. Whatever may be our impressions in a case like the one supposed, we think the question does. not arise in the present record, assuming the facts to be as they are exhibited in the bill of exceptions; and the answer to the argument will be based entirely upon that assumption, without prejudice to what may hereafter appear. When the settlement was made, the new notes were given in payment of the prior indebtedness, and the collaterals previously held were surrendered to the defendant, and the time of payment was extended and definitively fixed by the terms of the notes, showing an agreement to give time for the payment of a debt already overdue, and a forbearance to enforce remedies for its recovery; and the implication is very strong, that the delay secured by the arrangement constituted the principal inducement to the transfer of the bill. Such a suspension of an existing demand is frequently of the utmost importance to a debtor, and it constitutes one of the oldest titles of the law under the head of forbearance, and has always been considered [371] a sufficient and valid consideration. (Elting v. Vanderlyn, 4 John. 237; Morton v. Burn, 7 Ad. and El. 19; Baker v. Walker, 14 Mee. and Wels. 465; Jennison v. Stafford, 1 Cush. 168; Walton v. Mascall, 13 Mee. and Wels. 453; Com. Dig., action assumpsit, B. 1; Wheeler v. Solcum, 16 Pick. 62; Story on Prom. Notes, sec. 186, and cases cited.) The surrender of other instruments, although held as collateral security, is also a good consideration; and this, as well Goodman v. Simonds. as the former proposition, is now generally admitted, and is not open to dispute. (Dupeau v. Waddington, 6 Whar. 220; Hornblower v. Proud, 2 Barn. and Ald. 327; Rideout v. Bristow, 1 Cromp. and Jer. 231; Bank of Salina v. Babcock, 21 Wend. 499; Youngs v. Lee, 2 Ker. 551.) It seems now to be agreed, that if there was a present consideration at the time of the transfer, independent of the previous indebtedness, that a party acquiring a negotiable instrument before its maturity as a collateral security to a pre-existing debt, without knowledge of the facts which impeach the title as between the antecedent parties, thereby becomes a holder in the usual course of business, and that his title is complete, so that it will be unaffected by any prior equities between other parties, at least to the extent of the previous debt, for which it is held as collateral. (White v. Springfield Bank, 3 Sand. S. C. 222; New York M. Iron Works v. Smith, 4 Duer, 362.) And the better opinion seems to be, in respect to parol contracts, as a general rule, that there is but one measure of the sufficiency of a consideration, and, consequently, whatever would have given validity to the bill as between the original parties is sufficient to uphold a transfer like the one in this case. We are not aware that the principle, as thus limited and qualified, is now the subject of serious dispute anywhere, and that is amply sufficient for the decision of this cause. Whether the same conclusion ought to follow where the transfer was without any other consideration than what flows from the nature of the contract at the time of the delivery, and such as may be inferred from the relation of debtor and creditor in respect to the pre-existing debt, is still the subject of earnest discussion, and has given rise to no small diversity of judicial decision. It seems it is regarded as sufficient in England, according to a recent case. (Poirier v. Morris, 20 Eng. L. and Eq. 103; Byles on Bills, pp. 96 and 127.) A contrary rule prevails in New York, as appears by several decisions. (Coddington v. Bay, 20 John. 637; Stalker v. McDonald, 6 Hill, 93; and also in Tennessee, Napier v. Elam, 5 Yerg. 108.) It is settled that it is a sufficient consideration in Massachu setts, Vermont, and New Jersey, and such was the opinion [372] of the late Justice Story, as appears from his remarks *in Swift v. Tyson, and in his valuable treatise on Bills of Exchange. (Stoddard v. Kimball, 6 Cush. 469; Story on Bills, sec. 192; Chicopee Bank v. Chapin, 8 Met. 40; Blanchard v. Stevens, 3 Cush. 162; Atkinson v. Brooks, 26 Ver. 569; Allaire v. Hartshorne, 1 Zab. 665.) We think, however, that the point does not arise in this case, for the reasons before stated, and, consequently, forbear to express any opinion upon the subject. The Gazzam v. Phillips. judgment of the circuit court is reversed, and the cause remanded for further proceedings, with directions to issue a new venire. CHARLES W. GAZZAM, Plaintiff in Error, v. ELAM PHILLIPS and others. 20 H. 372. CONSTRUCTION OF PATENT, AS TO DESCRIPTION OF THE LAND GRANTED. 1. The boundaries and quantity of land granted by a patent must be ascertained by descriptive language in the patent. 2. An equity of the grantee to recover more or different land cannot control the language of the patent in an action at law. The case of Brown v. Clements, 3 How. 650; 15 Curtis, 580, overruled. THIS is a writ of error to the supreme court of Alabama. The case is well stated in the opinion. Mr. J. Little Smith, for plaintiff in error. Mr. Sherman, for defendant. * Mr. Justice NELSON delivered the opinion of the court. [374] This is a writ of error to the supreme court of the State of Alabama. The suit was brought in the court below to recover the possession of some four acres of land in the city of Mobile. The lessors of the plaintiff claimed title to the lot in dispute as heirs of James Etheridge, and gave in evidence a patent from the United States to their ancestor, dated 30th May, 1833, "for the southwest quarter section twenty-two, in township four south, of range one west, in the district of land subject to sale at St. Stephens, Alabama, containing ninety-two acres and sixty-seven hundredths of an acre, according to the official plat of the survey of the said lands returned to the general land office by the surveyor general; which said tract has been purchased by the said James Etheridge.' The above is a literal extract from the description of the parcel of land in the patent granted to Etheridge. The defendant claimed under William D. Stone, and gave in evidence a patent to him from the United States, dated the 17th December, 1832, "for the south subdivision of fractional section twenty-two, same township and range, containing one hundred and ten acres and fifty-one hundredths of an acre, according to the official plat of survey of the said lands returned to the general land office by the surveyor general; which said tract has been pur Gazzam v. Phillips. chased by the said William D. Stone." Etheridge gave notice to the register and receiver of his claim under the act of 29th May, 1830, on the 28th January, 1831, and produced his proofs. Stone gave notice of his claim to the same section, 25th March, 1831, and furnished his proofs. The claim and proofs in each case were received and filed, but no money was paid, nor certificates given, as the official plat of the survey of the township had not then been received at the office. This plat was returned and filed in March, 1832. There were private claims surveyed and laid down on the plat to this section, so that the portion open to the two pre-emption claims in question was confined to a fractional part of the section. This fractional part was divided according to the plat by a line running north and south through it, laying off in the west subdivision ninety-two and sixty-seven hundredths acres, and in the east one hundred and ten and fifty hundredths acres. Etheridge purchased the west and Stone the east subdivision. The certificates of purchase were given to both claimants 30th April, 1832. The one to Etheridge is for the southwest [375] * quarter of section twenty-two, containing ninety-two and sixty-seven hundredths acres, the quantity in the west subdivision, at the rate of one dollar twenty-five cents per acre, amounting to $115.43; the other to Stone is for the southeast subdivision of fractional section twenty-two, containing one hundred and ten and fifty-one hundredths acres, the quantity in the east subdivision, at the rate of one dollar twenty-five cents per acre, amounting to $138.13. The sales in each case were made in conformity with the subdivisions, as marked upon the plat of the surveyor general then on file in the office, and to which all purchasers of the public land had access, and which constituted the guide of the register and receiver in making the sales. The lessors of plaintiff also gave evidence showing that the premises in question were within the southwest quarter section twentytwo, computing the same according to the usual measurement of quarter sections, and that a full quarter might have been laid off from the fraction, and claimed that the whole of the south west quarter had been appropriated to their ancestor, Etheridge, under the pre-emption act of 1830, which position was assented to by the court. The court also ruled that the purchase and patent of Stone, under whom the defendant claims, must be restrained to the fraction in the west part of the southeast quarter of section twentytwo, and that it gave him no right to the land in the southwest quarter. Gazzam v. Phillips. The effect of this ruling, when applied to the case, gave to the heirs of Etheridge one hundred and sixty acres of the fractional section, in disregard of the official survey, the purchase, and patent for only the ninety-two acres, and reduced the one hundred and ten which Stone purchased, and had a patent for, to some fortythree acres. The court is of opinion this ruling cannot be maintained. For, conceding for the sake of the argument that the plat by the surveyor general of this section was made contrary to law, the ground upon which the decision is sought to be maintained, and that Etheridge, under the pre-emption act of 1830, was entitled to purchase the whole of the southwest quarter, and to have it surveyed and patented to him, yet it was not so surveyed, nor did he purchase, nor has he obtained a patent for the same. On the contrary, he purchased and paid for the west subdivision only of this fractional section, containing ninety-two acres, and took out a patent for the subdivision. And in addition to this, Stone, at the same time, purchased the east subdivision, as laid down on the official plat, and has received a patent for the same, and which includes the premises in question. *The patent to Etheridge, as we have seen, describes the [*376] land granted as the southwest quarter, &c., containing ninety-two and sixty-seven hundredths acres, according to the official plat of the survey of said lands returned to the general land office. And the patent to Stone is equally specific in the description of the parcel granted to him. The title, therefore, to the premises in question was never in the ancestor of the lessors of the plaintiff, but has been in Stone, and those holding under him, since the 17th December, 1832, the date of his patent. The case of the claim of Etheridge to the whole of this southwest quarter, some years after the issuing of the patent to him and Stone, was presented to the commissioner of the land office for correction. It was there elaborately examined by the counsel for the applicant, and by the commissioner of the land office, and ultimately disposed of by the secretary of the treasury, on the opinion of the attorney general; that officer maintaining the regularity of the survey, and of course confixing the grants to the subdivisions as laid down on the plat referred to in the patents. But, as we have already said, whether this view of the law be sound or not, it cannot control the question before us. The inquiry here is in respect to the legal title, whether it was in Etheridge or Stone, under the descriptions of the land in their respective patents. Unless we can hold that it passed to Etheridge under his patent, the |