
    GENERAL COURT,
    MAY TERM, 1799.
    Carroll et al. Lessee, vs. E. & S. Norwood.
    Ejectment on seven separate demises for two tracts "of land, one called Enlargement, and the oilier called Brown*s adventure, lying in Baltimore county. The defendants took defence ou warrant, and plots were made and returned.
    1. The plaintiff at the trial, to support the issue on ■Ids part, produced a certificate of survey, made for and In the name of John Israel, bearing date the 10th of January 1720. for a tract of land called <>-Tlie Enlargement/* lying in Baltimore county, containing 100 acres of land, 'more or less. Also a grant to the said John Israel„ dated the 10th of July 1724, for the said land called The Enlargement. Also the will of the said John Israel, dated the 13th of J anuary i 723, devising the said land to his sons John L. Gilbert T» and Bobert Israel, which will was proved by the subscribing witnesses thereto on the Htb. of March 1723. S3e also produced several mesne conveyances from the, dev isees of the said. John Israel, down to the lessors of the plaintiff.
    The defendants proved that the said John Israel, for whom the. said rercificaie of survey was made, died before the issuing of the patent aforesaid in his name; and thereupon prayed the direction of the court to the jury, that the said patent was void; and that the lessors of the plaintiff, having produced the said certifícate and patent, and claiming title und-r the same, that the jury could not presume a patent had Issued to the devisees of the said John Israel for the said land.
    Martin, (Attorney General,) and Key, for the plaintiff,
    to this objection answered, that John Israel having acquired an equitable interest in the latid under the ra*ti3-cate of survey, the patent related to the date of the rejtificate, and passed tbe title from that time; and moreover, supposing the patent void, the jury after the great lapse of time which had intervened, ought to presume a grant issued to the children and devisees of John Israel.
    
      Midgely and Mason, for the defendants,
    replied, that if the. patent was void, as they contended, then being an absolute nullity it could not have relation nor any operation. That presumptions were made of the existence of facts not appearing’,— not that facts existed different from those actually shewed by the plaintiff to have existed. And of that opinion was Duvaix J.
    But Chase, Vh.J. and Done, J. were of opinion, and directed the jury, that John Israel acquired an equitable interest in the land called The Enlargement, in virtue of his certificate Of survey; which equitable interest was transmissible by last will. And John Israel having’ devised the said land, among other lands, to his three sons, as tenants in common in fee, and the plaintiff having deduced and shewn a tide in the said land from the devisees of the said Israel, by sundry mesne conveyances, the jury may and ought to presume a patent issued to the sons of the said John Israel, from the great length of time which has elapsed since the date of the said certificate , if' the jury find the possession of the said land lias been held under the said title. The defendants excepted.
    2. The plaintiff offered in evidence to the jury, a certificate of survey of a tract of íand called The Enlargement, (before, mentioned,) described as lying’ on thei north side of Fatapsco River, arid on a run called Davis’s Run, beginning, &c. He also produced and offered in evidence to tbe jury, the plots, and surveyor’s explanations accompanying the same, made and returned iii Ibis cause.
    Whereupon the defendants objected, that as the plaintiff had named in his declaration the tract of land for which he has brought his ejectment, “Enlargement,” he cannot give in evidence the said certificate of survey made for the tract of land called “The Enlargement.”
    
      Midgely, for the defendants,
    contended, that the plaintiff’s proof must correspond with his declaration; that lie had not described the land in the declaration otherwise than by the name of “Enlargementthere were no courses or quantity of acres to show its identity. In the certificate of survey the land is called “The EnlargementThat there was no lease confessed but that laid in the declaration. It is there,said that the demise is for the land called Enlargement, not for The Enlargement. He can produce certificates of surveys for lands in the same county, some called Enlargement} and others The Mnlargemenh
    
      Martin', (Attorney General,) contra»
    The samé precision is not required here as in cases where nnl tiel record may be pleaded. The plots in this case are a part of the plaintiff’s declaration, and shew the courses of the tract of land for whicli the ejectment is brought, and therefore reduced the claim of the plaintiff to'sufficient certaíiíty. A recovery in this, casé can he pleaded iii bar, by reference to the plots, with an averment, as in any other case. There is a great difference between defence upon warrant and general defenecí where defence is taken upon warrant the plots specify and designate the plaintiff’s pretensions, afi’d arfe apart of Ms declaration, ánd there, is sufficient certainty to enablfe the sheriff to give'possession.
    Chase, Oh. J. .However unwilling the ¿hurí fetén to objections which prevent a trial of the merits, they cannot but consider ike variance in this case as lathi.
    If you sue for land by name, you must name it literally. You might have sued for it by description, arid then the name would have been unimportant; but as the suit is for land by name only, .and you have not shewn a title for the land na oed in the declaration, the plaintiff must fail.
    The plots arc part of the plaintiff’s declaration, so far as to show location.
    Tlie couht'are óf opinidn that the certificate of survey of the trhet of land called The Enlargement, cannot be given in evidence to the jury.
    , Tlie plaintiff excepted. There tvas no application made to the court for leave to amend the declaration, and it Seemed to be tlie opinion of the court, that the declaration was not amendable, the act of 1785, eh. 80, not extend* ing to actions of ejectment.
    Verdict and judgment for the defendant. The plain* tiff appealed to the court of appeals'.
    
      Martin (Attorney-General,) for.ihe appellant,
    (on the last hill of exceptions, being the only one before tlie court of appeals,) contended, that admitting the certificate of survey offered in evidence in the general court described the land by the name of The Enlargement, and the declaration described by the name of Enlargement, yet the subsequent averment on the plots, which are admitted to he the pleading:; in the cause, and a part of the plaintiff’s declaration, cured any defect as to the description in the. declaration. That Enlargement” and The Enlarge
      
      ment,” were the same in grammatical construction, and common language. That there was a great difference between defence taken generally, and that taken upon warrant. In the first the party might be confined to his declaration, hut in the latter, where the lands are located and designated, upon the plots, the defendant is made acquainted with the name and description of the land claimed by the plaintiff in the action, and is prepared to defend the. case, and is not at the trial taken by surprise. The plaintiff, by his pretensions on the plots, brings out his case more fully, as is usual in replications. It will not be denied that if an ejectment is brought for a tract of land by name, without further specification, it is good. In this case sufficient certainty appears to enable the sheriff to deliver possession.
    
      Mdgehfs contra,
    contended, that the court of appeals were confined to the bill of exceptions, by which it appeared that the certificate of survey offered in evidence by the plaintiff-below, was not the original certificate, but a copy of a certificate not under the seal of the office, and therefore should not have been offered, and could not he received in evidence. That admitting it had been under seal, it did not support the plaintiff’s declaration, but varied from it, being for a different tract of land. 1 hat the party’s replication ought to support the declaration. The plots show that two tracts ofland are located thereon, one by the name of United Friendship, and the other by the name of The United Friendship, and why might there not be also two tracts of land one by the name of Enlargement, and the other by the name of The Enlargement? There must he certainty enough to enable the sheriff to deliver possession. Suppose in this case there had been a general verdict for the plaintiff, the judgment would have been that he recover his term in the tract ofland mentioned in the declaration called Enlargement, and the writ of possession would have directed the sheriff to deliver possession of* the land by that name» Suppose there were two tracts in the county one called Enlargement, and the other The Enlargement, could the sheriff under the writ deliver possession of the latter tract?
   The Court or Appears, as to the objection that the copy of the certificate of survey, which was offered in evidence in the general court, not being under seal, observed that it was too late to make it in the court of appealsj that such objection should have been made at the trial, for copies unauthenticated were often offered in evidence by consent of the parties, and if the objection bad been made in the court below it could have been easily obviated.

Tbe Court of Appeals, upon the bill of exceptions, dissented from the opinion given by the General Court, and reversed the judgment.

Pkocedenbo Awabbeb.  