
    Carroll, et ux. vs. Smith.
    tinder what oír»' ofT’private "plot »utem!}'dberead m evidence
    an^etion'Tf ‘weT pass having had upwards of 20 years possession by wás'supposcdh.'be ihtNt?«paSw wal‘ charged to canñot pas3°n committed within the end 5KLe7lf "°t011 lot
    ceiLiiiotsonanci werc made at pub-pvivate sal"’, by "a ei° ‘¿aieVrigirtto hold the lots ac-arfd evidence cannot be given that the surveyor, when running the lots preparatory to the; malting out the plot* run the division ov other lines different iroia the lines located on the plot
    Appeal from Baltimore County Court. This was an action of trespass q. c. f. to recover damages for a trespass on Pai't °f a *ra°t of land called Sivan Harbour, No. 7. The general issue was pleaded, and the lands were located on plots returned under a warrant of resurvey for that mimóse, fose,
    1. In the trial the plaintiffs, (the appellants,) having proved to the jury that they were legally entitled, in right Sophia Carroll, one of the plaintiffs, to lot No. 7, part Swan Harbour, containing 120 acres, .agreeably to the I rue metes and bounds of said lot, under a deed from dr-Buchanan to John Pearce, dated the 12 th of April 1785, the defendant, (the appellee,) read in evidence a deed from the said Buchanan to Harry Dorsey Gough, under whom the plaintiffs claim lot No. 2, part of Swan Har-hour, dated the 12th of April 1785, for 180 acres of the sa^ land, describing the same by courses and distances, Also a bond of conveyance from the said Buchanan to the Pearce, dated the 21st of April 1784, ofa lot orpiece, °f ground, being part of Swan Harbour No. 7, described by metes and bounds, containing 120 acres. The defendant also, to show the true location oflot No. 7, as originally sold by Buchanan, offered to give in evidence a papel* purporting to be a plot of Swan Harbour, copied from an anonymous plot of said land, and of its division into eight lots, 'in the possession of Samuel Vincent, by Jehu Bould-in; and also offered evidence to prove, that the said land called Swan Harbour, was sold at public auction in eight different lots, numbered from No. 1 to 8, inclusive, by a plot which was made for that purpose by James Baker, except lots No. 1 and No. 7, and that lot No. 3 was sold to Hobert Ballard, and lot No. 2 to the said 11. D. Gough, and that lot No. 1 was afterwards sold to the said Gough, and lot No. 7 to John Pearce; and proved by Samuel Vincent, a competent witness, that he was for near 20 years the agent and clerk of the late H. D. Gough, under whom the plaintiffs claim, during which time said Gough, who had then bought part of the land called Swan Harbour, gave to him, with other papers, a plot of Swan Harbour laid off into lots, and directed him to take care of said papers, but made no particular mention of said plot, or any other of said papers; that the witness did not know whether it was a correct plot, nor did he ever hear the late Mr. Gough say that it was, or say any thing on the subject of it, further than as aforesaid. The defendant also proved by Jehu Bouldin, another witness, that he copied said plot in the office of Vincent, and made therefrom the paper now offered in evidence, which he proved to be a true copy of the said plot, in the lines, words and figures, on said paper. It was further proved by Jamen Baker, a competent witness, that he made the original survey and plot of Swan Harbour; that in making the said survey, he cornered lots No, 2, No. 6, and No. 7, at the same place, which place he believes to be the place marked M on the plots returned in this case. That in making the division of the said tract into lots, he began one line at the place marked ÍI on the plots, and ran into Tobacco-House cove, and as he believes to the said place marked M, for the division line between lots No. 2 and lots No. I, 3, and 7; and that he was a commissioner many years ago on a commission to settle the divisional lines between lots No. 2 and No. 4, on one side, and lots No. 5 and No. 6 on the other, when the said divisional line was so settled as to terminate at the said place marked M, being the place at which he believes that lots No. 2, 6 and 7, originally cornered. And he further prov>ed, that he saw in the possession of James Carroll, one of the plaintiffs, the said plot from which Jehu Bouldin copied the one now offered in evidence; that it had the general appearance of the plot he had made for said Buchanan, but he has no knowledge whether the same was a true copy from his said original plot, or by whom it was made, or whether it Was a correct plot of the said lands. It was admitted that the original plot was lost, and that the said plot formerly in possession of the plaintiff James Carroll, wag accidentally lost several years ago by certain land commissioners, to whom he had lent it, before the institution of this suit, and who were appointed by Baltimore county court to ascertain and settle the true location of ,tlie said lot No. 3, declaring to them that he had no knowledge whatever, and could obtain no information concerning.the correctness of the said plot, but was willing to let .it be recorded as evidence between the parties of the true location of the lots of Swan Harbour, as sold by Archibald Buchanan, which however was not done. The defendant .then prayed the courf, that upon the facts given in evidence, the said plot might be offered in evidence to the jury. :■ To which the plaintiffs objected. But the Court, £Nicholson, Ch. J. and Bland, A. JTj overruled the objection, and permitted the plot to be given in evidence to the jury for-.the purpose aforesaid. The plaintiffs excepted.
    2. The plaintiffs then offered evidence to prove, that in the year 1785 John Pearce, the purchaser and then proprietor of lot No. 7 of Swan Harbour, put up a fence from the letter A on the plot, to C, and from C to 49. And also from A.to 13, as said lot No. 7 is located by the plaintiffs; .and that the plaintiffs, and those under whom they claim, have been in the peaceable possession of said lot as located by them, holding it under enclosures, and claiming it as and for lot No. 7, for 20 years and upwards next preceding the time of bringing the present action; and that the said land, located by them as lot No. 7, has for 20 .years, and upwards, next preceding the bringiug of said .suit, been commonly known and called by the name of lot No. 7. And the plaintiffs prayed the court to direct the .jury, that if they should believe this evidence they, the plaintiffs, were entitled to recover. Which direction the Court refused to give, and the plaintiffs excepted.
    3. The plaintiffs then gave in evidence, that at the sale 'made at public auction as aforesaid, of parts of Swan Har-bour, .which took place on the 15th of October 1783, the lots No.' 1 and No. 7, nor either of them, were sold, and .that lot No. 3, which was then sold to Robert Ballard, was soon afterwards relinquished by him to the said Archibald .Buchanan, who afterwards sold it to James Giltings, and conveyed it to him by metes and bounds, without any reference whatever in the deed of conveyance to any plot or division, by a deed bearing date on the 24th of December 1784.- And also gave, in evidence, that on the 21st of April 1784, the said Jhchibald Buchanan, the proprietor of Swan Harbour, sold the said lot No. 7 to John Peaice, by a bond of conveyance of that date; and also gave in evidence a deed, dated the 12th of A.pril •1785, whereby the said Buchanan conveyed lot No. 1, part of Swan Harbour, to Harry D. Gough, by metes and bounds.. The defendant offered no evidence to prove that the said lots No. 1. and No. 7, or either, of them, were sold at any time, or to any person, at public sale, or any evidence that they, or either of them, were sold by a plot, other than the circumstance that a plot and division of Swan Harbour was made as aforesaid, and that the said plot and division was exhibited at the said public sale to the auctioneer and bidders, and the other circumstance, that in the deed executed by Buchanan to Pearce for lot No. 7, pursuant to the said bond of conveyance, the said lot is described “as all that part of Swan Harbour, known and distinguished on the plot thereof as let No. 7,” and other than the matters before stated; and the oefes dant offered no evidence, except that before stated, of the existence of the original plot of Swan Harbour, nor of the manner in which the lines thereof were run, or in which the said tract was thereon divided into lots, nor of the lines and boundaries of these lots as thereon laid down. The defendant then prayed the opinion of the court, and their direction to the jury, that if the jury believe the sales of iots No. 7, 3 and 1, were made at public auction, or at private sale, by a plot, the purchasers, and those claiming under them, have a right to hold the lots according to the • location which was made on the plot by which they were sold; and that the plaintiffs cannot give evidence that the surveyor, when running the lots preparatory to the -making out tiie plot by which the sale was made, run the divisiona-ry or other lines different from the lines located on the. plot. Which direction the court gave. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.
    The cause was argued before Buchanan, Eahle, Johnson, and Mahtin, J.
    
      Harper, for the Appellants.
    1. On the first bill of exceptions he contended, that there was no evidence that the plot offered in evidence was a genuine one, and a true copy of that under which the purchase was made. The rule is, that a copy cannot be given in evidence without proof' and notice to produce the original.
    2. On the second bill of exceptions he contended, that the plaintiffs, having had 20 years possession by enclosures, of what was supposed to be lot No. 7, it was sufficient for them to support a trespass committed within the enclosures.
    
      3. On the third bill of exceptions he insisted — 1. That it was not proper to leave it to the jury to find the lots were sold at private sale by a plot. 2d. And if proper to leave it to the jury, the purchasers were not bound by the plot, if they could show a mistake in the plot. Sd. That there was no evidence of the existence of a plot to which the attention of the jury was to be called; and 4th. That the plaintiffs were not precluded from showing that the surveyor, in making the plot, committed a mistake, and that it was not made pursuant to the running.
    
      
      Jííaríin for tile Appellee, on the second bill of exceptions referred to I Esp. Dig, 310.
   The Court agreed with the County Court in the opi* nions expressed in each of the bills of exceptions.

JUDGMENT AFFIRMED.  