
    GENERAL COURT,
    MAY TERM, 1801.
    Howard’s Lessee vs. Cromwell
    Leave given to a defendant iii ejectment to narrow his defence taken on the plots on payment of costs.
    The court refused to direct the 1 jury, that the title of A to vacant land, (net contiguous to the original 'tract,) included in a surrey under an elder warrant and a junior grant, should have priority to the title óf li to the same vacancy included in a survey under junior common warrant and aii elder grant; but held, that the special warrant under which A claimed^ acquired an equitable interest in the vacant land contiguous thereto, from the dateof the warrant, and that his giant would relate to the date of the certificate of survey as to such adjoining vacancy, but not to give title to any land,separated by an elder survey, and included in the grant under whicltB claimed. * • ' * ‘ . # .
    . # . The jury are to determine and ascertain from evidence, the true position and location of the land-» in controversy.
    y. The jury are to decide on the propriety and justice of allowing or not allowing the variation of the compass, and the rate or rule of such variation according to the evidence in the case.
    Ejectmewt for three tracts of land lying in. Baltimore county, viz. Howard’s Inheritance Resurveyed, Water Oak Ridge, and Rosland. The defendant took defence upon a warrant, and plots were returned. At this term the defendant, gave “notice of a motion for leave to ascertain and narrow his pretensions and defence on the payment of such costs, as shall be ordered and adjudged to he paid by the defendant to the plaintiff.” The leave was granted on the payment of all costs to this time, (20th of May 1801,) except the attorney’s fee, and sheriff’s fee for serving a copy of the declaration in ejectment. The defendant took defence for the tract of land called Wester Ogle, as located on the plots in red dotted lines; for the tract of land called Addition to Simpkins’ Repose, located in green lines; and for the tract of land called Ising Glass Glade Enlarged, in blue lines.
    Relation of a frant to the eerti-cate of resurvey as to vacant land adjoining to the original tract resurveyed, hut not where the vacant land is separated from the original tract by an elder survey and is included in another grant.
    It was agreed between the parties that this case did not depend upon the location of the first seven lines of Wester Ogle, but that the true location thereof lays that land clear of the lines of the land called Mount Organ. It was also agreed, that the defendant claimed no part of the land called Howard’s Inheritance Resnrveyed, as located on the plots, as included Within the lines of Wester Ogle.
    
    1. The plaintiff at the trial offered in evidence to the jury, a common warrant issued to Thomas Wells, on the 4th of August 1752, for 60 acres of land, he having paid Si. sterling caution for the same; also an assignment of the said warrant to Cornelius Howard, on the 22d of January 1753; also a certificate of survey made in virtue of the said warrant on the 30th of January 1753, for 38 acres of land, and called Water Oak Ridge; also a patent granted on the said certificate on the 6th of March 1753, to Cornelius Howard, father of the lessor of the plaintiff; and the plaintiff also offered in evidence to the jury, that the composition money for the land included in the certificate and patent aforesaid, was paid on the day of issuing the said warrant, and that the said certificate was examined and passed on the said 6th of March 1753. » The defendant then offered in evidence to the jury, a special warrant of resurvey issued on the 28th of November 1751, to John Medcalf, to resurvey two tracts or parcels of land lying and being in JBalti-more county, and contiguous to each other, viz. Rich Level and Medcalf’s Addition, and to add contiguous vacancy, &c. That the said warrant was renewed on the 13th of May 1752, for six months, and again on the. 18th of November 1752, for six months longer, and was executed on the 20th of January 1753, and a certificate of survey returned to the land office for 720 acres of land, and called Wester Ogle.
    
    [The certificate states Rich level to contain 100 acres, and Medcalf’s Addition to contain 102-J acres, 46 acres part whereof lay within the bounds of a tract called Mount Organ, and 14§ acres within Spring Garden, and that 578 acres of vacant land were added.]
    That the said certificate ivas caveated by'the said Cornelius Howard on the 21st of April 1753; that the said caveat was overruled on the 17th "of August 1753, and patent ordered to issue on the said certificate. That the said certificate was assigned by the said John Medcalf to Doctor William Lyon on the 6th of August 1753. That the said certificate was examined and passed on the 17th of August 1753, the composition money paid on the 28th of September 1753, and patent issued thereon to the said William Lyon on the 8th of February 1754.
    The plaintiff then offered in evidence to the jury, that the certificate of survey and patent of Wester Ogle aforesaid, comprehended within its lines and boundaries, vacant land not contiguous to Rich Level, or Medcalf s Addition aforesaid, but which, though vacant, was separated from the said tracts, by tracts of land granted antecedent to the issuing the warrant of resurvey aforesaid to the said John Medcalf, and that the lines in the said certificate and patent of Wester Ogle, crossed the said elder surveys, to include the vacancy included in the patent of Water Oak Ridge aforesaid.
    Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that the title of the defendant to the land called Wester Ogle, and all land vacant at the time of the execution of the warrant of resurvey aforesaid, and included within tlie lines and boundaries thereof, commenced from the 2Qth of January 1753, so as to have apriority of title to the same vacancy which was included in the patent of Water Oak Ridge.
    
    The jury areto determine the oiuethe lands41 in niepupvopriety of allowing the vari-ationortheneedie such variation
    Chase, Ch. J. 
      . The court refuse to give the opinion and direction to the jury, as prayed by the defendant: But the court are of opinion, and so direct the jury, that John Medcalf, by his special war? rant of resurvey on the lands therein mentioned, acquired an equitable interest in the vacant lands contiguous thereto, from the date of the said warranter and that the patent which issued to Doctor William Lyon, to whom the said John Medcalf had assigned his certificate of survey on the said warrant, will relate to the. date of the s.aid certificate as to such adjoining or contiguous vacancy,, and not to give title to any vacant land separated b.y an elder survey, and included in the patent of Water Oak Ridge. The defendant excepted. See 4 Harr, & 325.
    
    The defendant prayed the opinion of the court, their direction to the jury, that if they the jury are of opinion, that the tu o tracts of land located qh. ‘ the plots returned in this cause, called Murrains Meadows, (surveyed the 27th of February 1726,) and. The Addition to Shiloh Completed, (surveyed the 25th of April 1752,) located course and distance only, on, the 20th of January 1753, agreeably to the certificates thereof, lay clear of each other, that then it was lawful for the surveyor to go between the said tracts in order to include any adjoining vacant land, beyond them, in the certificate of resurvey for Wester Ogle.
    
    Chase, Ch. J. The court are of opinion, that it is the province of the jury to determine and ascertain from the evidence adduced to them in this action, the true position and location of the said lands, and whether there was any vacancy intervening the said tracts; and that it is with the jury to decide on the propriety and justice of allowing, or not allowing the variation of the compass, and the rate or rule of such allowance, according to the evidence in the case. The defendant excepted. Verdict and judgment for all that part of Water Oak Ridge by him located and not included in the defendant’s location of Addition to Simpkins’s Repose.
    
    The defendant appealed to the court of appeals, and the case was argued in that court at November term, 1803, by
    Mason, for the appellant, and by
    
      Martin, (Attorney General) and Key, for the ap« pellee.
    
      
      
         Duvall and Done, J. concurring.
    
   The Court op Appeals affirmed tiie judgment of the General Court, concurring with that court in the opinions expressed in both bills of exceptions,  