
    OCTOBER TERM, 1767.
    Ruff’s Lessee, vs. Webster.
    Ejectment for a tract of land called Daniel’s Lot Revised, containing 570 acres; also for a tract of land called Strawberry Hills, both lying in Baltimore county. The last tract appears not to have been in dispute. The defendant took defence on warrant, and plots were returned.
    The plaintiff’s title was a patent of confirmation of Daniel’s Lot Revised, granted to Richard Ruff on the 3d of November 1753; that Richard Ruff had been dead 7 or 8 years, leaving Richard Ruff, the lessor of the plaintiff, his eldest son and heir at law, who arrived at age in June 1764.
    The defendant’s title was a certificate of survey of Ranger’s Lodge, made on the 15th of June 1681, for David Jones, for 500 acres, and patented to the said Jones on tlie 10th of August 1684, for 5.00 acres.
    A deed for said land, dated the 14th of September 1741, from James Philips to Isaac Webster the defendant, for 500 acres.
    Also the return made by a jury on the 9th of September 1706, under a warrant issued on the 6th of September 1706, in pursuance of the act of assembly of 1699, ch. 18, for ascertaining the bounds of land, 
      
    
    The defendant located Ranger’s Lodge on the. plots agreeahly to the said return of the jury, thereby covering a part of the plaintiff’s tract called Daniel’s. Lot Revised.
    
    
      Faca and Chase, for the Plaintiff,
    objected to the said return being offered in evidence to the jury.
    
      1st Objection. Tlie return is not evidence, because the defendant has not laid down Ranger’s Lodge on tlie plots returned in this cause, agreeably to. the jurors return, and consequently the evidence is not applicable to tbe plots. The return directs that tbe tract shall run from the beginning A. 314 perches; whereas on the plots it runs JV. 85 E. 328 perches. In the return, thence JV. 330 perches with the said run — on the plots, JV. 5 1-2 TV. 324 perches, leaving the run. In the return, then TV. 250perches^ — on the plots, W. 249 perches to a bounded white oak; which varies every course, and sets up a tree, which is neither in the certificate nor in the return of the jurors.
    The expressions in the certificate of Ranger’s Lodge made for Jones, are “lying in Baltimore county at the head of Bush river, in a branch called Middle Branch, beginning at a bounded white oak standing on the JV. E. side of a run called Binam’s Run, and running E. 250 perches to a bounded white oak standing by a run called John James’s Jinn, thence with the said run JV. 320 perches, then TV. 250 perches, then with a straight Une, &C» containing 500 acres.
    2d Objection. The defendant’s ease is not within, nor executed pursuant to, the act, on which the jurors return was founded.
    The jurors add 50 per cent, and say it is within the first example of the law. Blit that law only gives 50 per cent, when running a certain course, and certain number of perches, to a bay, &c. if the course directs thereto, and the number of perches fali short, if adding 50 per cent, will react» the bay, &c. the fine shall be extended the' eto, being certain, natural and unalterable bounds.
    There is no example in the law of reversing the first course to find a beginning, which the jurors did in this can to find an artificial beginning, to wit, a tree, and fixed at the beginning without any proof, by a sort of guess; and the;, ga%e 64 perches to reach the second tree standing on John James’s Run, when the law only gives 50 per cent, to reach a bay, creek, &c. natural boundaries.
    
    x he defendant should shew his case to be expressly within an example of the law, or the court cannot presume it to be. within the equity, mischief or intention of the l;\v, and the court is restricted hy. the last clause of the act.
    There is no example in the law, how to find either a first, second, third, or fourth tree, when lost.
    Where a tree is lost, no beginning could be set up to. prejudice an elder tract, which is done in this case.
    There is only one instance put in the law, of a tree lost, and that is of a tree standing in the line of a tract, hut. then to hold only the precise number of perches.
    
    
      3d Objection. The jurors exceeded their authority;, they did not pursue their derivative power; and having done moro than is warranted hy the act, all is void.
    
      Statutes creating new jurisdictions are. to be construed strictly, and ar? not to be taken by equity. — 1 Str. 255, 260. Bac. M. tit. Statutes. Ami statutes which gave new remedies shall, not have a liberal construction — 2 Sid. 28, 62, 63.
    This act cannot be styled wise, technical, or prudent, but with truth may be called ignorant, unintelligible, illiterate, and against natural justice. It directs no notice? to persons interested, as is done, by every law since, to wit, 1715, 1718, 1722, 1723. By this act aman maybe condemned unheard, his property affected secretly, and without any opportunity to support his right; and , no judgment can be given against a man net present, unless b\ his default, he neglects to appear.
    The law directs the county court to grant a warrant of resurvey and a venire for a jury, there (i. e. in such case,) She surveyor to have the same fees as for primitive surveys, and he shall certify that by virtue of the warrant, he hath resurveyed the land, and that/ifi hath resurveyed and regulated the same according to the 1st, 2d, or other example of the law, which certificate, with a fair plot, shall be returned to the examiner of the county, and being approved by him, to the county clerk to be recorded. The governor to appoint the examiner,, and he, to have fees directed by the law.
    In this case, the return is by the jurors and sheriff, without any plot, and the. surveyor, the principal executive person, not present; no plot returned to the examiner, another necessary officer; and such return repeals or makes void or useless all that part of the law which creates such officers, and points out their office and duty.
    The jurors might be surveyors — admit it; yet a surveyor is directed by the law, and the return and plot is no evidence of boundaries unless made' by the surveyor, and passed by the examiner, which if done, might give some credit and exactness to the work, and would perpetuate the land in the same view for ever by the plot so returned to the county court and recorded, which we are enow* deprived of, and the proceedings of the jury in the dark. And here a return by persons not authorised, not deemed capable by the law*, without the sanction of the. surveyor and examiner, or a plot, is attempted to. establish bounds, when the law requires many persons and many acts to constitute such proceedings as proof.
    It is, apprehended that the jurors by the law were onhj to examine witnesses, and by proof to ascertain the bounds; but in tiiis case they usurped the department of surveyor and exaniiner.
    
      When an act of parliament directs a thing to be doné before one, it is an exclusion of all others. 11 Co. 59. Hob. 259. Carter, 36. Vaugh. 179. Plowd. 206. Savil, 36. 1 Co. 11. Holt, 215. 12 Mod. 202. Yelv. 26. Noy, 46. Bulst. 185. Vin. tit. Authority, 417.
    
      Rumsey and Johnson, contra,
    cited the case of Crow’s Lessee vs. Scott, decided in this court at April term 1751, and affirmed in the court of appeals, 
       Also 1 Stra. 46. Gilb. Evid. 65. 2 Eaym. 1375. 1 Stra. 608. Vin. 420 pi. 16, 18, 21, 26, 31, 37, 44.
    
      Verdict for the plaintiff as to Daniel’s Lot Revised, and for the defendant as to Struwberry Hills. Judgment upon the verdict, &c.
    
      
      
         See this act — 9 Harr. 8? M‘Hen. (Appendix.) And Land Held. Asst. (Appendix.)
    
    
      
      
         1 Harris and M‘Henry3 182,
    
     