
    * Austin F. Peay, Ex’or. of Nicholas Peay v. Thos. Briggs.
    Where a question of location, between the purchaser and vendor, is doubtful, the purchaser will be concluded by his deed which called for a certain plat on a resurvey, which resurvey was present when the deed was made and referred to as the metes and bounds by which the vendor sold.
    When to an action on a note given for the purchase of land, a defence is made, that there was a deficiency, the rule for ascertaining the deduction in the price is the relative value of the land, and not according to the average price, 
      
    
    Where there have been two concurrent verdicts, there must be manifest error, or injustice, to induce the Court to grant a second new trial.
    This was an action of assumpsit on a note of hand, given for a part of the purchase money of a tract of land, sold by plaintiff’s testator to the defendant.
    The cause was tried before Mr. Justice Nott, at Winnsborough, at a Special Court, August, 1819.
    The defence was a deficiency of land, by reason of titles paramount in other persons; for the value of which the defendant claimed a deduction. The amount of deduction contended for was eighty-eight acres, taken off by a grant to Ogilvie, on one part, and also a hundred acres included in a grant to Genot, now belonging to Knighton, in another part of the land. The question with regard to Ogilvie’s, depended upon the manner of closing the lines. Knighton’s depended merely on the relative value of the land, If the lines were closed from A to B, Ogilvie’s land was included. If from A to 0, then it would be excluded, and the defendant would be entitled to no deduction.
    Previous to the sale to the defendant, there had been a resurvey of the lands, and the lines closed according to the manner represented by the line, A 0, which resurvey was present when the deed was made, and referred to as the metes and bounds by which the plaintiff’s testator sold. The presiding judge instructed the jury, that if it had appeared clear and manifest that there was a mistake in the former resurvey, and that the line, A B, was actually the true ‘^line, he should have been of opinion that the defendant would be enti- r*ioK tied to a deduction for the Ogilvie tract. But as it was extremely *- doubtful which was the most correct method, he thought the parties ought to be concluded by the deed and plat referred to. The plat was by reference made a part of the deed, and the metes and bounds there exhibited were the lines to which the warranty extended, and no farther.
    With regard to the value of the Knighton tract there were various opinions. Most of the witnesses, however, thought it more valuable than the other parts of the land.
    The jury found a verdict for the plaintiff, making a deduction for the Knighton tract. It is not known upon what principle the jury ascertained the amount to be deducted. But it is supposed that they took the average value, and not the relative value of the land.
    This was a motion for a new trial, on the ground that the jury ought to have allowed a deduction for both parcels of land, according to their relative value.
    
      
       N. & McC. 3S4.
    
    
      
       See post. 189, in. note, the case of Furman v. Elmore R.
    
   The opinion of the Court was delivered by

Nora, J.

I am perfectly satisfied with the manner adopted by the jury of closing the lines for the reasons given by the Court below. But I am not so well satisfied with the sum allowed on account of the Knigh-ton tract. I, think the relative value is the true rule. Monstrous injustice would be done in many instances, were it otherwise. It is not unusual to throw in, as of little or no value, considerable bodies of poor land when attached to valuable swamp land. Sometimes the poor land, which contains the greatest number of acres, is not estimated at all in the price. A deduction in such case, according to the average price, would in many instances, deprive a person of the benefit of half his contract, and more. There are nevertheless many reasons in this case, why the verdict should not be set aside. This is the second verdict equally unfavorable to the claim of the defendant. *And it is not probable that he would be more successful, were the case to be sent back. The witnesses differed very widely with regard to the value of the land, and in all probability the difference in any event would not be enough to pay for the trouble and expense of another trial. The plaintiff must always have a verdict for something. And after two concurrent verdicts, there must be manifest error or injustice to induce the Court to grant a second new trial. I have but little doubt that justice has been done by this verdict. There is reason to believe that the defendant knew the situation of the land when he purchased, and that his defence is bottomed on a mere legal advantage, which he has got of the plaintiff, contrary to the justice of the case. He even now retains exclusive of the Knighton tract, a greater number of acres than he originally purchased.

Glarhe, for the motion. Peareson, contra.

Upon the whole, I am induced to think that justice has been done between the parties, and that a new trial ought not to be granted.

Colcocek, Gantt, Johnson, and RichaRDson, JJ., concurred. 
      
       1 McC. 588 ; 2 Rich. Eq. 349.
     
      
       2 McC. 28 ; 3 McC. 141, 282 ; 6 Rich. 1.
     
      
       Post. 519 ; 2 Bay. 133.
     
      
       S. C. before, 2 McR. 98.
     