Hughes's Lessee v. Howard

3 H. & J. 9

• Court: Court of Appeals of Maryland
• Decided: June 15, 1810
• Status: Published

Opinion

. Chase, CL J.

delivered the opinion of the court. As to the first question, in this case arising on the refusal of the court to enter up judgment on the verdict of the jury.

It appears to the court that the verdict was insufficient, and that the court below did not err in refusing to enter judgment on it, and in granting a venire facias de novo.

The jury were concluded by the admissions of the parties, and ought to have found the beginning of Gist’s In-ejection at Is the place admitted, but having disregarded the admissions of the parties, and found the beginning oí' Gist’s Inspection at a different place, figure 9, the subsequent finding of the jury is predicated on that mistake, and the courses and distances of Gist’s Inspection, as found by the jury, must run from figure 9, and the court have no power to change the verdict, and to lay them down from I, contrary to their intention plainly expressed.

If the verdict of the jury is insufficient, or contrary to the admissions of the parties, the court have the power of granting a new trial, or ordering a venire, for the at-, fainment of justice.

It is the acknowledged and exclusive province of .the jury to decide on the variation of the compass, and to make such an allowance as corresponds with the proof, and will advance justice. The juries, in fixing the variation of the compass, are not confined to any certain rules, but are governed by the circumstances existing in the case. The juries, in some cases, have refused to make any allowance, in others they have allowed at the rate of one degree for every twenty years, and in others they have been influenced by ancient runnings and proof of possessions, There being,, therefore, no certain criterion by ■which the allowance can be ascertained with precision, it would be assuming too much in the court to change the verdict in this case, by running the courses according to the patent of Gist’s Inspection from I, instead of the figúre 9, With the same allowance of variation. ' *

[

(a) It appears to me that the plaintiff has relinquished all advantage he might have been entitled to, by ácquiescing in the opinion of the court, and'moving'for a vepire facias de novo, and obtaining’ á new trial. The ground of the'motiqn was the insufficiency of the verdict, and was granted; at the instance and on the suggestion of the plaintiff! If thé’ court below had’ erred in refusing to enter up judgment ori' the verdict, and (lie plaintiff had rested'his case on itr judgment of non prá.ss would have beén given, and ' the’ plaintiff could have obtained redress by writ of error; but according to this mode of proceeding, if sanctioned by .this? court, the plaintiff will have the benefit of a second tria!, and the right of afterwards questioning che* judgment below... The venire facias was granted on the Mofion, and at tlie instance of the plaintiff, and on the ground tbsit die verdict was iru.ufiluent and void, añil the plaintiff, having had the benefit of a second trial, and failed, cannot now, I think, be allowed to question tlie legality and propriety of the

The court-considered it as a principle, established be* yond controversy, that where there is a location óri the plots by either of the parties, of a tract oflá(sd, deed, plot; &c. and there is no'counteri'opation by the adversé party, such location'is admitted.

It is also, established, that no evidence can be given of the location of a deed, plot, &c. which does not corre* gpuncl with it,

In this case the proceedings, certificate and plot, of the commissioners, being variant from the location made on the plots by the defendant of the said proceedings, certificate and plot’, could hot legally bé ádmi'tted' ás evidence. The defendant having produced and read the'sainé to the jury, without objection being mtídé to the legality of the evidence, could not render the same legally admissible when offered by the plaintiff; and this court áre of opinion, that the court below did nofferr in rejecting the said testimony, and do'affirm the judgment. ■’

Gantt, .7. dissented as to the opinion expressed on (he hill óf exceptions.

'Judgment aeeiemed.

The part here inserted in crotchets did not form a part of the opinion of the court.