MURDOCK'S CASE. 488

knowledge or consent, in the matter imputed to him. William
Murdock and Zachariah Johnson answered severally on oath; they

accordingly be paid or levied. And it is further Decreed, that the agreement stated
in the bill for dividing the land called United Friendship, shall be carried into effect;
and that accordingly the defendant by a good deed, to be acknowledged and recorded
agreeably to law, shall give, grant, bargain, and sell, release, and confirm, and convey
to the complainant and his beirs, all that part of the said tract of land called Umted
Friendship, which has long been and now is in the said Edward Norwood's posses-
sion, as stated in the bill and admitted in the answer, under the agreement aforesaid.
And the said Edward in like manner shall convey to the said Samuel Norwood and
his heirs, all the other part of the said United Friendship, now in possession of said
Samuel, as stated in the bill and admitted in the answer. And the intent of this de-
cree, conformably to the agreement of the parties, is, that the branch from the two
sycamores, or from the place where they stood in case they are not now standing,
near the mouth of the dry run, shall be the division line, until it intersects the road
to the falls; that the next line for division, shall be the road towards Baltimore to the
top of the hill; thence the dividing line shall run to the head line, so as to make
equal quantity of wood and land to each party; and that the part of Edward Norwood
shall be that part on which the new buildings stand.

The agreement aforesaid, for a division, does not contain such precision as might
be wished, even with respect to the division of the land; but as the parties each
state a possession for many years under the agreement; and by experience it can be
made certain; and as justice cannot be done without enforcing the said agreement,
or giving it validity, so far as may be, the Chancellor conceives, that to say it in
such an agreement as this court cannot enforce, would be a disgrace to the court.
Whether or not indeed, the court has jurisdiction; and whether or not it shall use
its discretion in exercising that jurisdiction, must frequently depend on the mere
circumstances, which distinguish one case from another. Let it only be considered
what would be the situation of the parties in the present case, if the court should
determine, that notwithstanding the agreement, the parties are to be deemed tenants
in common, each liable to a suit for profits, &c. But as to the other part of the
agreement, that the profits of the ferry be equal, it docs not appear to the Chan-
cellor, that it is definite and certain enough to ground a decree, definite and certain
as every decree ought to be; that is to say, this court cannot pass a decree direct-
ing Samuel Norwood to provide such a boat, such and so many hands, such ropes
and other materials, specifying and particularizing all, as might appear proper for
carrying on the ferry to advantage. This court cannot do this, because the agree-
ment specifies nothing; and because this court certainly cannot make, change or
new model an agreement. But as nothing is more clear to the Chancellor, than that
the meaning of the agreement was that each party should take one-half of the profits
of a ferry to be carried on at the place where the ferry, which was the subject of the
agreement, was carried on, or so near it, as to enjoy the custom which that ferry
would have enjoyed; the Chancellor thought proper to decree as he has done with
respect to the profits.

And it is further Decreed, that the defendant Samuel Norwood, be, and he is
hereby enjoined to permit the said Edward Norwood to take and to pay to the said
Edward weekly, one-half of the profits arising from any ferry, by the said Samuel
carried on, at the place where the ferry mentioned in the bill was kept, or so near
the place, as to take custom which would otherwise go to any ferry kept at said place;
and that the said Samuel Norwood, be further enjoined not to disturb, molest, or
interrupt the said Edward Norwood in the enjoyment of one-half of the profits of