
    Hughes's Lessee vs. Howard.
    Apíeal from Baltimore County Court Bjectm'eni fot tx tract of land called Gist’s Inspection, lying in Baltimore county, containing 400 acres. Defence was taken on warrant, and plots were made, by which it appeared that the plaintiff located Gist’s Inspection, as beginning at I on the plots, which was not coünterlocated nor denied by the defendant, but admitted by hini to be the place of beginning «f Gist’s Inspection. ^ » » . ,. 5
    1. At the trial in October 180$, the jury by their verdict say, “that they find the bounded red oak tree, mentioned in the grant of Lun’s Lot, to have stood at figure 9 in the plots, and the said tract of land to run thence, what is called, in the defendant’s table of courses on the plots, the thirty-eight perches N Z5l° W, and 100 perches N T0~¿° W lines, according to their several courses and distances in the grant of Lun’s Lot, with four degrees of variation; and the jury find the beginning of Gist’s Inspection to be at figure 9 in the plots, and to run thence course and distance according to the grant of Gist’s Inspection, with an allowance of two degrees for variation. And the jury find for the plaintiff all tiie land lying within Gist’s Inspection, according to the location thereof made by the jury, which is not covered by their location of Lun’s Lot.’ Motion by the plaintiff to set aside the verdict — 1. Because it is against evidence. 2. Because it is against the admissions of the plaintiff'and defendant on íecord. The plaintiff afterwards, at the next term, withdrew his motion, and prayed the court to enter judgment on the verdict; but the court refused to enter a judgment on the verdict. Motion was then made by the plaintiff for a venire de novo; and the verdict was set aside, and a venire de novo awarded. f - ' ^ 5 i r l | « ' . 1 ■ i , ;
    2. The defendant, at the second trial in March 1807, having located on ihe plots the land called Lun’s Lot, as located and returned by certain commissioners on the 2d of August 1,-82, and on the present plots made the W N "VV 100 perches line of the said location terminate in lot ■ No. 892 bf the city of Baltimore, to prove his saití lócá» tion correct on the present plots, read «i eviderice the procbedirigáj certificate and plot, made out and returned by the said commissioners in 1782. And as the defendant had reád iii evidence the Said last mentioned proceedings for the purpose aforesaid, the plairitiff offered to read the sanie to the jury, to show that the same did not correspond with the location made on the present plots by the defendant? but that the W N \V Í00 perches line terminated in lot No.900, and not in Not 892. But the defendant objected to the plaintiff’s using the said proceedings, plot and cer*' tificate, for the purpose aforesaid. Arid the coiirify court* {Ñichólsoñ^ Ch. J. arid Hollingsworth, A. J.) determined* that inasmuch as the plaintiff had not counterlocated the proceedings' of the commissioners, he could not, by the evidence offered, controvert the location thereof as made by the. defendant. The plaintiff excepted? and the verdict arid judgment being for the defendant* the • plaintiff ap-* pealed to this court.
    
      The .jury are » concluded* by the admissions of the » parties us located upon the plots in . an action of ejectment* but if'they ,. disregard the ad® 5 missions of the parties, and find the beginning of f the tiact of land* - tor winch the e* ijectrnent is brought, at a t!>£ i'erent place» tins ' rest of the finding ^ of the juiy is pre5 dieated upon that mistake, and the i court have no r power to change the verdict,
    íf the verdict of l a jury is insufficient or contrary | to the admissions of the parties, the « court have the ' power ol granting . a «i w mu/, or orvenire.
    
    The jury are to 1 decide on the variation of the compass, and to make such an allowance as corresponds with the proof
    ihe jury,in fixing the variation of the compass, ate not coniiwd ■ to any certain rules, but are go-i verued by the cir- , cumsumcL-s exist- ; ing in the east*.
    The jury some cases have refused to make any allowance for variation, in others they have allowed at the ¡ate of one degree for every i¿0 years, and in others they have been iuiiuenced by anew nt runnings and proof of possession».
    ■ Where a verdict ia given, and the plaintiff moves fov judgment thereon* wb.ch is refused by the court on tjtó ground of the insufficiency of the verdict, aud the plaintiff then moves for and obtains a venire facias de nova, and a new trial 1» bud, and! the second verdict is for the defendant, the plaintiff, on writ of error, cannot take advantage of any error ©t the court below, in not entering judgment on the first verdict. He has relinquished all advantage he might have been entitled to 5>j' acquiescing in the opinion of the court below. Per Chave, Ch. J.
    T Where there is a location 011 the plots in the cause, by either of ihe pai ties, of it tiact of land, deed* plot, ike. and there Is no eounievlooation by the, adverse pnrty, such location is admitted.
    No evidence can be given ot the Location of a deed, plot, &e which does not correspond with it»
    Where the deiiuiduut produced and read certain proceedings, winch were variant from the location made on the plots by him, without objection being made to the legality ©£ the evidence*it cilUQQ* 4er the same legally admissible wheu oifered by the plaiu&ifif*
    
      Thu cause was argued before Chase, Ch. J. Bitch aw an* ■ Gantt, arid Earle* J.
    
      Martin and Winder, for the Appellant,
    stated thatthe first question was upon th ofirst verdict found by the jury; that the ejectment was brought for Gist’s Inspection, the beginning of which tract was admitted by both parties to be at letter I on the plots, and the only question for the jury, was as to the variation of the compass on the lines running from the beginning at I; but the jury* disregarding the admission of the parties, by their verdict found the beginning of Gist’s Inspection to be at figure 9 on the plots. They contended that the finding of the jury, as to the beginning of Gist’s Inspection, ought to have been rejected as surplusage, and the court should have corrected the verdict so as to make the beginning at the letter I, and rendered judgment thereon. If the jury find what is contrary to the agreement of the parties, it is mere surplusage, and judgment is to be entered on the remaining part of the verdict. They cited 7 Bac. Ab. tit. Verdict, (W) 41. Dyer, 115, 147, 183. Goddard's case, 2 Coke, 4. Hassall vs. Juxon, Cro. Eliz. 283. 2 Roll. Ab. 691, (R) pl. 1, 2, 3, 10. Jenk. 102. Wilcox vs. The Servant of Skipwith, 2 Mod. 5. Clare vs. Pepys, Cro. Eliz. 41. 5 Com. Dig. tit. Pleader, (S. 17, 18.) 3 Leo. 80. Tonkin vs. Croker & Billing, 2 Lutw. 1216. 1 Leo. 66. Foster vs. Jackson, Hob. 53, 54. Vin. Ab. tit. Trial, 386, 407, 437, 438, Pal. 19. Trials Per Pais, 284. Co. Litt. 227. a. Rules of Practice, 11 Mod. 64, (2). 2 Bulstr. 56. Tonkin vs. Croker, 2 Ld. Raym. 860. M‘Ferran vs. Taylor, 3 Cranch, 280; and Hall vs. Gittings's Lessee, 1 Harr. Johns. 28.
    
      Harper and W. Dorsey, for the Appellee,
    stated that two questions arose upon the refusal of the court below to enr fer judgment upon the first verdict — 1. Did the court ere in so refusing? And 2. If they did, was it competent for the appellant to avail himself of it on his appeal? They admitted, on the first question, that the court might mould the verdict so as to carry the intention of the jury into, effect; but they contended, that if it had been done in, this Case there would have been quite a different finding from that contemplated by the jury, since the jury might not have found the same variation of the compass from the beginning at the letter I, which they did from the figure 9. In all-the cases cited by the counsel for the, appellant, after the surplusage was stricken out, there was a. complete verdict remaining upon which judgment could be entered.
    On the second question, they contended, that the plaintiff below, on the refusal of the court to enter judgment on the. verdict, should have availed himself of the err or at the.time by an appeal or writ of error; but having submitted to the. decision, and prayed the court to award a venire de novoi which was granted to him, he has waived all error, if there was any.
    On the question arising on the bill of exceptions, they referred to Hammond, et al. Lessee vs. Norris, 2 Harr. & Johns. 148. Keedy vs. Chapline, 3 Harr. & M‘Hen. 573; and Jarrett's Lessee vs. West, 1 Harr. & Johns. 501.
   . 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. ' *

[ 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.
     