
    Williams’s Lessee vs. The Trustees of the Poor, &c.
    A tractof land caU in a grant to run e. «,dw AJVoiwMndruii. said creek the thence n 39» e 26 ifrnhRMher cove‘ KdtTcove'wVw 2aps.thcnceN26» TOvtV’the heg/n land 0ca“ieÜ'aG ais» being a bnu’ná-faULiied mWnsoea?^bvha line dl-awn N.a'nd 5,aÍd.!anwbLali,,e45' cove,“then wiuf’a h1}!? that tii.-re being on Hie'p'otsei'fl’i SdRrin1 Sated by ib" defendant Svetk,"Candf^S ami bys8 perche, rfBporéek'mtfsí ifead^rthat ereA, as located on the Ulado!!‘tiMt°Seek h, according1’i"™ grant,thcfoiiowing dmvn aiid wbh'tbe % the mouth of point to bcascSr th"nM ay5'exp,"'i’ 39»'E26e fw'tiu-point ofPanother ceruiinedbytbe.pt" vy, thencewub'the wul24COps* thence N 26» W 34 ps. acYoss to the beginning tree of G, and a bounder of D. That if the beginning of G, and the bounder of D, cannot be proved, or if no such tracts can be proved, then the N 26tf W 34 ps. course is to run across the said cove to ihe end of the said line,and then to run the several courses mentioned in the grant, without regarding the tails G and D, That it is the province of the jury to ascertaiu according to the proof, the points and coves called for, there being no particular designation contained in th<i grant of the coves, or of tile points of the coves called for.
    Appeal from Jlnne Jirundel County Court. Ejectment for VHlliams's Purchase. The defendants (the appellees) took . defence for Norwood's Beale, on the plots made in the cause.
    1. The plaintiff at the trial offered in evidence the pa* °f Williams's Purchase, the land mentioned in the declaration, granted to the lessor of the plaintiff on the 6th May 1800, whereby it is describee! as lying “adjoining and between the tract of land called Norwood's Beale, and a creek called Dorsey's creek, beginning for the same at the edge of a cove leading out of the said creek, and at the end of 8 ps. on the N 25° E 12 ps. course of Norwood's ^eale, (as corrected with an allowance of three degrees 45 minufes for variation,) the same being the 9th course of sabl land from where it calls to a marked locust post, it a bounder of the laud called Sandgate, and from thence running with said line, (as corrected with the said f°r variation,) N 21° 15' E 4 ps. to the end t*lereo^ sf'^ running with and bounding on said land as follows, towit: S 73° 15' W 56 ps. N 35° -Í5' E 8 ps. N 15' W 24 ps. thence N 74° E 144 ps. thence S 29° E 34 ps. to the mouth of a cove that leads out of Dor-from thence up and bounding on and with the meanders of the said creek, the several following courses an(1 distances, to wit: S 30° SO' E 6 ps. S 25° \V 5 ps. S 56° 45' W 10 ps. S 10° 45' W 10ps. N 81° W 6 ps. to the mouth of a cove, then up and bounding on and with the mean<1ers °f said cove these several following courses and distances, to wit: N 57° 15' W 12 ps. S 83° 45' W 7 ps. 88° 30' W 10 ps. N 46° W 10 ps. S 58° 15' W 3 ps. S 30' W 8 ps. N 85° 45' W 14 ps. N 71° 45' W 10 ps. to the first beginning.” And also proved that the same was truly located on the plots; and offered in evidence the P^ots at)d explanations by him made. He then gave in evidence the patent of Norwood’s Beale, granted to John Beale on the 2d of May 1719, (being a resurvey on Nor-wood, granted to John Norwood the 8th of February 1658; The In tache, granted to John Norwood the 18th of January 1659; Norwood's Recovery, granted to .Undrew Norwood I°f June 1686; and Proctor's Chance, granted to t Proctor the 28th of June 1680; and alsoacertain tract of escheat land called Gattenby, granted to Thomas Gates the 7th of February 1658.) “Beginning at a young bounded 1°cusb standing by Severn river, on the S side of the said, river, and on the -N side of a cove called Nonvood's cove, at tlle mouth of the said cove, and bounding on the said river, lying up with the following courses, viz. N” &c. “to the mouth of Norwood’s creek, thence bounding on the said creek and running therewith to the heat] thereof, by the several following courses, viz. S” &c. “to the head of a cove, then N” &c. “up the cove to a marked poplar, marked I H, for the governor, thence N” &c. “to the Rock-ey Neck Cove, then N,” &c. &c. “across the cove, then N,” &c. “to the spot where the original bounded pine of the land called Norwood stood, mentioned in the original certificate to stand at the head of the creek, then S,” &c. “to a marked locust post, being a bounder of the land called Sandgafe, thence E 36 ps. to a bounded white oak called Todd's oak, thence with Todd’s Range S 74 ¿-° E 224 ps. to a stump on the S side of a branch, then running across the branch N 48° E 14 ps. then E & by S 8 ps. to the head of Dorsey’s creek, and running down with the said creek the following courses, N 56° E 76 ps. then N 81° E 34 ps. then N 31° E 42 ps. then N 64° W 54 ps. then N 25° E 12 ps. then S 77° W 78 ps. then S 49° E 14 ps. to a point at the mouth of a cove, thence N 39° E 26 ps. to the point of another cove, thence with the said cove, W N W 24 ps. thence N 26° W 34 ps. cross the cove, to the beginning of the said tract of land called Gattenby, it also being a bounder of 60 acres of land called Dorsey, and running with the said 60 acres by a line drawn N and by W 30 ps. still bounding with the said land by a line drawn W 166 ps. then ENE 204 ps. to the head of Norwood’s cove, then with a straight line to the first tree.” And the plaintiff contended, that the said resurvey was truly located by him. The defendants then also offered in evidence the said patent of Norwood’s Beale, and insisted that the same was truly located by them under the leave to add and amend, and the plots made out to September term 1812. They also offered in evidence, the patents of Gat-tenby, Dorsey and Norwood, vi-/.. Dorsey surveyed 27th August 1668, and granted the 4th of September 1668, to Edward Dorsey, “lying on toe S side ot Jinn Jlnvodd liver, and on a creek called Dorsey’s creek, beginning at a bounded pine upon a point, and running up the said river for the length of 120 ps. to a cove called Freeman s cove, then up the said cove to the line of the land of Capt. John Norwood, then by the said Norwood’s line S W for the length of 204 ps. to a bounded red oak in the said Nor-wood’s line, then bounding on the line of a parcel of land formerly laid out for Thomas Gates, to the said creek, then bounding on the said creek to the first bounded tree, containing 60 acres,” &c. Gattenby, granted to Thomas Gates on the 7th of February 1658, “lying on the W side of Chesapeake bay, and on the S side of a river in the said bay called Severn river, and on the N side of a creek in the said river called Dorsey’s creek, beginning at a pine tree by the creek side, the said pine being the bound of 10 acres formerly laid out to the said Gates, running N and by W for breadth, by the clear ground side, 30 ps. and W 7 ps. to a marked oak, then running W for length 105 ps. ’tato the land lately laid: out unto John Norwood, and W S W by the said land 85 ps. unto a marked oak, bounding, on the W by a line drawn S from the said oak 100 ps. to a marked oak by the head of a branch, on the S by a line drawn E from the said oak 45 ps. and E N E 05 ps. and EJ 70 ps. to a marked oak by the said creek, on the E by the said creek; On the N by the first W line and Norwood’s land, containing and now laid out for 100$ acres,” &c. Norwood, granted to John Nor-wood on the 8th of February 1658, “lying on the W side of Chesapeake bay, and on the S side of a river in the said bay called Severn iiver, beginning at a marked oak by a cove side called Norwood's cove, running N W up the river for breadth 150 ps. to a creek called Norwood's creek, bounding on the N by the said creek, running S W and by W for length 340 ps. to a marked pine by the creek side, on the W by a line drawn S and by E from, the said pine 150 ps. to a marked oak; on the S by a line drawn N E and by E from the said oak 160 ps. and by a line drawn E from the end of the N E and byE line 16 ps. and by a line drawn ENE from the end of the E line unto the land formerly laid but unto Nieholas Wyatt, and by the said land unto Norwood's cove; on the E by the said cove and river, containing and now laid out for 230 acres,” &c. And contended that the same were truly located by them on the plots in this cause. The plaintiff then prayed the opinion of the court to the jury, that he being admitted, to have supported the title and location of his pretensions, is entitled to recover, unless the defendants by legal evidence can prove the true location of elder tracts, which take away the same; and that to justify the jury to gratify the calls in the elder certificate, by the defendants offered in evidence, proof must be given to satisfy the jury that the same are truly located on the plots. This direction the court [Chase, Cli. J. and Ridgely, A. J.J refused to give; but were of opinion, and so directed the jury, that there bping only one location of Dorsey's creek, and the letter I being located by the defendants as the head of Dorsey's creek, and not counterlocated by the plaintiff, that the E and by S 8 perches course to the head of Dorsey's creek must terminate at the head of that creek located on the plots; that from the head of that creek the true location is according to the said certificate, the following courses — running down and with the said creek N 56° E 76 ps. then N 80° E 34 ps. then N 31° E 42 ps. then N 64° W 54 ps. then N 25° E 12 ps. then S 77° W 78 ps. then S 49° ;E 14 ps. to a point at the mouth of a cove, the said cove affd point to be ascertained by the jury, thence as expressed in the said certificate N 39° E 26 ps. to the point of another cove, also to be ascertained by the jury, thence with the said cove W N TV 24 ps. thence N 26° TV 34 ps. across the cove, to the beginning of the tract of land called Oatlenby, and a bounder of the land called Dorsey. And the court were also of opinion, that if the beginning of said tracts called Gat-tenby, and the bounder of Dorsey, cannot be proved, or if ?«> such tracts can be proved, that the N 26? TV S4 ps?. aourae is to run across the said cove, and to the end of the said line, and then to run the several courses mentioned in the certificate, without regarding the calls to the said tracts of land called -Gattenby and Dorsey. The plaintiff excepted.
    2. The plaintiff further prayed the opinion of the court to the jury, that if the jury do not from the evidence, find that the beginning of Gattenby is at black L, that then they are not at liberty to run the line, of Norwood’s Beak, which calls to run to the beginning of Gattenby, course and distance — The defendants having given no location on the plots in the cause to warrant such location. The court refused to give this direction, but were of opinion, that if the beginning of Gattenby and the bounder of Dorsey cannot be found, or if such tracts cannot be proved, that the W 3-t ps. course is to run across the said cove, and to the end of the said line, and then to run the several courses mentioned in the certificate, without regarding the calls in Gattenby and Dorsey. The plaintiff excepted.
    S. The plaintiff then prayed the opinion of the court the jury, that as the letter W on the plots is located by the defendants on the point of the second cove called for, and no other location is given thereof, that the jury must find that tobe the point to which they must go in running from a point at the mouth of a cove, N 39° E 26 ps. and from said point W they must run the next course. But the court refused to give this opinion, being of opinion, that it is the province of the jury to ascertain according to the proof the cove and the point of the cove called for, there being no particular designation contained in the certificate of the cove, or the point of the cove called for. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Buchanan-, Earle, and Martin, .1.
    
      ShaaffznA Magmder, for the Appellant.
    Three questions arise on the record — 1. Is not the junior grant to stand unless there is proof that elder surveys include the land? 2, Can the defendants give a different termination than that called for in their locations on the plots? 3. Are they not bound by their location of a point if they do nof counterlocate it?
    1. The plaintiff’s location is admitted tobe correct, and his title is also admitted. To bar him an attempt is made to take away the land by locating other lands. If the defendants’ locations are correct, then the plaintiff’s land is swallowed up, Norwood’s Beale is the subject of controversy, and if it is correctly located it takes away the plaintiff’s land. That land is described to run “E and by S S ps. to the head of Dorsey’s creek,” &c. then, &c, “to the beginning of Gattenby,” &c. Gattenby, as located by the defendants, begins at L on the plots. This is counterlo-cated by the plaintiff so as to put the defendants on the proof of their location. Before the grant to the lessor of the plaintiff can be set aside, the defendants are bound to prove their locations. Where there are calls in elder surveys there must be proof to show that the lands are truly located. Norwood's Beale has calls,.and before the defendants can locate that land to those calls, there must be proof of them. The court below, however, directed the jury to run to those calls when there was no proof of such calls.
    2. Suppose a location is made on the plots running to a certain point, and there is no other location given, shall the party claim a different location than that which he has made? The defendants should have located as they expected to prove. If they could not prove the call, then they should have located course and distance. Hammond et al. Lessee vs. Norris, 2 Harr, fy Johns. 148. But the court below decided, that though the defendants claim to run to the call, yet the jury might run the course and distance, though not located or insisted on by the defendants. This was giving the defendants quite a new defence, and different from what they claimed. It is contended that the defendants were controled by their own location at W on the plots, in the same manner as the plaintiff was confined to his location at I. The certificate could not designate it except by giving it a name. The defendants having located the cove at W, and no other being made by them, they are bound by it.
    Stephen, for the Appellees.
    The defendants below took defence for Norwood's Beale. There was no controversy in the location of the land until if carpe to the head of Bor-sey's creek, which is located by both parties at the letter t on the plots; of course the head of Dorsey's creek is admitted to be at I. The court below, in directing the jury to run “down and with the creek,” had a right to do so, it being a matter of law for their decision. But where the coves were situated, was matter of fact for the jury. If there is but one location, yet it is competent for the jury to give less than is claimed, and otherwise than claimed and located.
   The Court concurred in the opinions of the County Court as given in each of the bills of exceptions.

Buchanan, J.

dissented from that given in the first bill of exceptions.

JUDGMENT AFFIRMETh  