
    Shields’s Lessee vs. Miller.
    eatefm”«ie“¿m «■ c“°ou"h' tíintíiV^gut ofl5 ftriii!-4 samlAimd m tiV ofAn-
    
    piahitjis new the time wIkk MS was born. Tho defendant the» proceeded to ex-amim- um same witness, in order to t‘?tabl"h,hk l0?;“‘ j,b¡*j* ¿'f Smmdtuí’e to“tía ii"u>roted1)yl0‘O dfít”olowi¿”i t‘L mted8i^ua-ilng the defendants lo« of Cesmb-lish. d-XfeM, tiinS liberty to ask the
    q i.u*«tioii, for the purpose «fallowing the witness interested and incompetent to ft’ve evidence relative to the locution oí Ce The true locution of a tract of land is a question of fact to be decided by die jury on he evidence., and it is their duty to find the local ion m such place where, from the < vidence ihi y shall be of o -ini'»» the lines thereof were originally run, unless they shall also find from the evidence, die parti, insisting on the original location, prevented, by some agreement, by adverse possesion, or by home «¿ow: Ic^aA bar9 from availing himself of Midi location
    Appeal from Frederick County Court. Ejectment for a tract of land called Shields’’ Adventure, Defence was taken on warrant, and plots were made.
    At the trial in the county court at August, term 1807, the plaintiff offered in evidence the plots, explanations and table of courses, returned in the cause, by which it ap peared, that among other tracts located on the plots, was Carrollsbvre, stated to have been granted to Charles, Daniel, ^ ” and Maní CarrolL on the 2d of September 1732. lie also ° # 1 ¡read in evidence a grant for Shields’ Adventure, dated & the 6th of November 1795, and several other grants, and then offered to read in evidence the grant of Carrollsburg. to Charles, Mary, and Eleanor Carroll, on the 8th of gust 1735, and stated to have been surveyed on the 2d of September 1732. To the reading of this last grant the defendant objected, and prayed the opinion of the court, that it was no evidence, and that it should not be read to the jury. Which opinion the Court, ['Ducharían, Ch. .1. , __ "ir* i i and Clazctt, ami ohnver9 Á. ,T. gave, and refused to . ,'L ” the grant be read. *1 he plaintiff excepted: and the * r 1 diet and judgment being against him, he appealed to this! court.
    The cause was argued at June term 1811, before .Polk, Nicholson, and Earle, J.
    
      Martin, for the Appellant.
    It is admitted that the jury ought not to find contrary to what is by both parties agreed to be true, whether by their pleadings, or in any other manner. It is also admitted, that the plots, as far as relates to the claim of the plaintiff, and defence of the defendant, are a part of the pleadings. For the plaintiff declares, that the defendant wrongfully ejected him from such a tract or part of a tract of land, as is contained within the locations on the plots of his claim. And the defendant replies, that he admits to have ejected the plaintiff out of such lands as are included within his defence, and relics upon being able to prove that he was guilty of no impropriety in so doing — -as to all else the locations are evidence; but it is admitted, that if both locate a tract alike, or, as happens in most cases, if one doth not counterlocate the locations of the other, it is an agreement that the locations are right. It is said that plots cannot be considered as introduced instead ot the view, because six jurors might yiéw, but twelve must see the plots. What are the plots but a miniature representation, on paper, of the property actually in dispute? There is represented the same grant, with its actual courses and boundaries, which you might examine on the view, by those courses and boundaries, and every object which could be necessary on the view to be examined by way of evidence, or for any other purpose, might be delineated on the plots. But as the plots are only used in evidence at the trial in court, after the jury are sworn, the plots, like all other evidence, must be offered to the whole twelve. It is admitted, that the plaintiff and defendant were both precluded from saying that there was not a tract called Carrollsburg, as delineated on the plot, granted to Charles, Daniel, and Man} Carroll, on the 2d of September 17%% beginning and running as laid down on the plots. But it is denied, that U was inconsistent with this admission to give evidence, that on the 8th of August 1"S5, a patent was issued to Charles, Mary, and Eleanor Carroll, for the .same land, beginning at the same piacej the one is perfectly consistent with the other. Twenty patents may be granted for the same land, or twenty deeds for the conveyance of the same land. Nor is it improper for the jury to find such patent, it not being contradictory to what was admitted in pleading or in evidence. Nor i» there any inconsistency between the allegata and probata in allowing the evidence proposed to be given. It was not proposed to rely upon any recital to prove th«j grant of 1735, but the grant was produced ami offered to be read. The, beginning of the patent offered in evidence may be similar- to that located on the plotj yet no evidence that their location in the country ara the same. If the beginning in the country is the same, their location must be, because the courses are the same which are located; and whether the beginning of this patent was in the country, at the samo place, musí have depended «pon evidence to be given offer the patent was read in evidence, and which could not be given in evidence before, The land contained in the grant, being located, authorised the reading any grant or any deed, the lines of which were similar, and the beginning the same. This principle has been solemnly decided in a number of cases.
    
      Key, Shaa/f, Taney and Brooke, for the Appellee.
    The plots are the pleadings in the cause, and are to have all the strict construction of pleadings. It is a rule in pleading, that what is admitted by the parties in pleading shall bo taken to be true, although the jury should find to the contrary, Here the plots being the pleadings in the cause, both parties have pleaded that a grant for Canolhburg issued to Charles, Daniel, and Mary Carroll, on the 2d of September 1783. This then, being taken to be true under the rule above mentioned, the jury cannot fiad that the grant for the same tract called Carrollsburg issued on the 8th of August ir35, to Charles, Mary, and Eleanor Carroll, because such finding would be contrary to the admissions of the parties in pleading. And, if the jury cannot be permitted to find the fact, it would be improperio allow any evidence of such fact to go to them. It is contended, on the other side, that the plots are not, for every purpose, io be considered as the pleadings, but are used by way of illustration, and substituted in the place of the view, ia England, But the principles of law applicable to views ia England, and plots ia this country* are totally different-which the defence does not appear on (he plots. Now, what is mere matter of illustration can never be a ground upon which a judgment by default can be entered, The allegata and probata must correspond, if the plaintiff declares on a lease of a certain date, and offers in evidence a lease of a different date, the evidence is inadmissible. Scnvage vs. Parker, Cro. Jac. 647. If the plaintiffdeclares on a bond by defendant, he cannot offer in evidence a bond by defendant and another person, although such other person be dead. Vinefs Jib. tit. Evidence, 65. If a plaintiff undertakes to set out a statute, and gives it a wrong- date, it is fatal. Plow. 84. 1 Corn. Big. tit. fiction upon Statute, il) 330. It is contended, that it appears by the recital of the certificate that the laud is the same, it is cer? tain that without such recital there is no evidence of the land being the same. Eut this recital is no evidence in the cause. The recital of a deed, record, lease, &c. in another deed or record, is no evidence of such recito/deed, &c. except against the parties to it, or those claiming under it, who are estopped to aver any thing contrary to their own deed, or the deed of the perso.p under whom they make title, 4 Com. Big. tit. Evidence, (B 5,) 93. The recital being rejected, as the defendant is pot a party to it, and It is sufficient that sis of the jury see the land,&c to be viewed. But it'will scarcely be contended, that only six of the jurors need see the plots. It was hold, in Baltimore county court, in the case of Hughes vs. Howard, 3 Harr. & Johns. 9, wt ere both parties located from the same beginning, that such place must be taken to be the true beginning; and the jury having found adiflfi rent beginning, the court set aside the verdict as being contrary to the admissions of the parties by the plots. In the same case it was determined by the same court, and this court, that the party, having given but one location of the pian of Baltimore-town, he could not offer in evidence a plan different in its location. In Hammond vs. Norris, 2 Ilarr. <§’ Johns. 130, a similar principle was established. These, and other determinati* ons, establish this doctrine, that the plots are to be considered as the pleadings, and to have the same effect; and are. not to be considered as mere illustration, and a substitute for the view in England. If the defendant does not take defence co-extensive with the plaintiff’s claim and pretensions, judgment by default is entered for all the lands for vices not claim under it, the patent is a naked grant, to* tally different in substance from that set out in the expía* nations; and there is no evidence in the cause to show that they are the same; for although the beginning, described in the patent offered in evidence, may be similar to the beginning of the land described on the ¡dots, yet there is no evidence that they are the same in the country.
    Tuts Court reversed the judgment of the County Court; and awarded $ procedendo.
    
    Folk, J. dissented.
    1. At the new trial had in the County Court at August term 183á, the plaintiff gave in evidence the plots and illustrations returned in the pause; and also grants of the following tracts of land, viz. Carrollsburg, Carrieles Chance, and Shields’ Adventure, the last being the tract for the recovery of widen this action is brought. And offered in evidence, that Carrollsburg is truly located on the said plots by him, with the allowance of one degree and one half degree for variation; and that Carrick’s Chance and Shields’ Adventure, are also truly located by him. He also gave in evidence the last will and testament of William Shields, the grantor of Shields’ Adventure, dated the SOth of November 1789, whereby the testator directed, that as much of his personal estate, slaves included, as should be judged necessary to pay off all his legal debts and funeral expenses, and also to make out good right for the part of his land which was not patented or conveyed to him, be sold and turned into cash, and the money arising from such sale be applied by his executors to the above purpose twelve mouths after his decease, or as soon as it may be in their power to collect the money; also, that on his youngest daughter, Margaret’s, arrival to the age of sixteen, he directed that then all his real and personal estate should be sold and turned into cash, and the money arising from such sale to be distributed and divided by iiis executors, whom he empowered and authorised to convey and make good rights to the purchasers of all his real and personal estate, amongst all his children, to wit; John, James, Henry, William, Samuel, Agnes, David, Danner, Ebeneztr and Margaret, lie constituted and appointed his sons, John and James, his executors, The will was proved the 9th of August 1797. And also , the- letters testamentary which were granted to John Shields, one of the executors named in the will, on the same day. And a deed from the said John Shields to William Shields, dated the 13th of December 1800, for a tract of land consisting of parts of Carrollsburg, Shields? Jtdveniure, Carolina, Curricle’s Chance, and Shields’ Delight, containing 560¿ acres and 26 poles, and described by courses and distances, Sic. containing a proviso that the said William Shields should pay to the said John Shields certain sums for which he had given his bond, on, &c. And a deed from the last mentioned William Shields to the aforesaid John Shields, the lessor of the plaintiff, dated the 8th of January 1801, for the same lauds as mentioned and expressed in the last above mentioned deed. The defendant then gave in evidence the patent of Car-rollsburg, and his location thereof on the plots, with four degrees and a half for variation; and the grants of Porter’s J'irsl Addition, dated the 29th of September 1764, and Dorter’s Sccdnd Addition, dated the 29lh of September 1764, both granted to William Porter, and the defendants locations of those two tracts on the said plots. The plaintiff' then called upon a certain Henry Williams as a witness, and gave in evidence by him, that Margaret Shields, mentioned in the said will, was born on the 2d of October 1783. He examined him to no other point. The plaintiff' then gave the witness over to the defendant for cross examination. The defendant then proceeded to examine the witness, in order to establish his location of Carrolls-burg, at which time the plaintiff offered to ask the witness, whether lie, the witness, did not own or claim title to the tracts of land called Porter’s First Addition, and Porter’s Second Addition, located by the defendant, in order to show that the witness was interested in having the location of Carrollsburg established. But the Court, [Buchanan Ch. .7. and Shriver A. J.] were of opinion, and so decided, that the plaintiff was not at liberty to ask such question of the witness for the purpose of showing that he was interested and incompetent to give evidence relative to the location of Carrollsburg. The plaintiff excepted.
    2. The plaintiff" then offered in evidence a deed from William Cochran’s executors to James Young, dated the 17th of August 1773, for 200 acres of land, part of Car* 
      
      •jr-UshiiTg. Also a deed from Samuel Emmit to William ¿Shields), dated the P.9sh of September 17&7, for 106 aerar, part of Gurrollsburg. Also a deed from Smnnel Emmit io Samuel Garrick, dated the 29th of September 1707, for 280 acres, pari of Carrolhhurg. Also a deed from Charles Carroll to William Cochran, dated the 6th of May 1757, for 27ÍÍ0 acres, part of Carrollsburg. And also a deed from Samuel Em rilé to William Emmit, dated the 12th of August 1785, for 35 acres, part of Carrollsburg, wham-in the lots of a new town called EmmiUburg are laid out, excepting as hereinafter excepted; and the different locations of those deeds made upon the plots by the plaintiff; and also in what manner the defendant had located tbs same, fie also gave in evidence, that the main-street of the town of Emrnitsbvrg is truly located on the plots by the plaintiff, and that the town is laid out upon the piece of ground so contained in the deed from Samuel to William Emmit; and that a large part of the town, which is now held and possessed by persons who bare purchased lots therein, and have improved them, is without the lints of Carrollsburg, as located by the defendant, but within the lines of Carrollsburg as located by the plaintiff'. Me also gave in evidence the different improvements, cultivations, orchards, meadows and buildings, made under their pureliases by the said Young, Garrick and Shields, as located on the plots, and the old divisional lines beiv»pcn the lands of Cárdele and Shields, and between Shields'3 deed, and the part of Carrollsburg northwardly thereof. He further gave in evidence, that by establishing the out lines of Carrollsburg, as located by the defendant, it would cause a general contusion among the said tenants of parts of Carrollsburg, taking ¿way from one the lands which he had possessed and cultivated, and the buildings and improvements he had mads, and giving them to another, from whom also a part of the lands he had held and cultivated, and the improvements he had made, would be trasrforreii to a third person, &c. The plaintiff's counsel, in addressing the jury, contended that, they had a right to exercise a sound discretion in determining what location they would allow for the tract of land called Carrollsburg; whether they Would settle the lines according to the present running, or by any other location, and that in doing this, they had a right, and it was their duty to fix the location in such man-rer as would best preserve to the different tenants of1 Car* rollsburg the lands belonging to them, according to the manner in which they had held and improved them; and that they were not obliged to fix the lines of Carrollsburg, by their verdict, according to the location of the defendant, even though they should believe, that when Carrolls-burg was originally surveyed it run correspondent wrthf that location, as the lines of Carrollsburg are confined tar course and distance, and do not correspond therewith, nor did when Shields’ Moenture was taken up, but left the same out of the lines of Carrollsburg, as they then actually run. The defendant then gave evidence to prove, that he does not claim or make title to the land for which ho takes defence, or any part thereof, or to any other lands, under or from the deed from Samuel Emmit to William Shields, from Samuel Emmit to Samuel Carriek, Or from Samuel Emmit to William Emmit, or either of them; and that the location of Carrollsburg, according to •which he has taken his defence on the plots, does not produce a general confusion among the holders of the said tract; and that the location thereof, contended for by the plaintiff, does not reconcile the said holdings, or the divisional lines, among the holders thereof. He also gave in evidence, that the location of Carrollsburg, according to which the defendant has taken his defence, is the true original location of that tract when the lines thereof were originally run. He then prayed the opinion of the court, and their direction to the jury, that the true location of the said tract is a question of fact to be decided by the jury on the evidence, and that it is the duty of the jury to find the location of the said tract in such place where, from the evidence, they should be of opinion that the lines thereof were originally run, unless they shall also find from the evidence that the defendant is prevented by some agreement, by adverse possession, or by some other legal bar, from availing himself of the said original location. This opinion the court gave. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued at this term before Chase, Ch. X. and Nicholson, and Eahle, J,
    
      
      Martin, anti Pigman, for the Appellant,
    on the first hill t>f exceptions, cited Peake's Evid, 122. 2 Esp N. P. 70, (489;) and Chapline’s Lessee vs. Keedy, 3 Hart, & M Hen. 578.
    
      Shaqtf, Taney, and Harper, 'for the Appellee,
    on the same exceptions, cited Dickinson vs. Shee, 4 Esp. Rep, 67; and Peake’s Evid. 164, 152.
   The Court dissented from the opinion of the County Court in the first bill of exceptions, and concurred in the opinion in the secondi

JUD&MENT Ii.EVEK.SE13, AND PROCEDENDO A "WARDED.  