
    MAY TERM, 1780.
    John Trammell’s Lessee against Arthur Nelson.
    EJECTMENT for tracts of land-called Woodland,, All the Remainder, and Trammell’s Landing, all lying in Frederick county. The defendant took defence for Hobson’s Choice. Verdict for the plaintiff. By the bills of exceptions filed in the cause, it appears,
    1st. The defendant took defence for part of the tract of land called Hobson’s Choice, surveyed for John Nelson, the 20th of October, 1739, and granted to him in the year 1742, which grant expresses the thirtieth line of Hobson’s Choice to run thus : “ then north ten perches to the first line of Mr. Charles Carroll’s land.” But the defendant, from the end of the 29th line, located on the plots the 30th line, north 20 perches to the second line of Mr. Carroll’s land, called Carrollton, described on the plots and admitted to be at the end of 106 perches, on the second line of the said land; and the defendant, to support his location, offered to read in evidence to the jury, the said grant of Hobson’s Choice. To which evidence the plaintiff’s counsel objected. But the Court (Thomas and Hanson, Judges) being divided in opinion, the plaintiff prayed leave to except.
    2d. The defendant, to support his location, then offered to show in evidence to the Jury, the original certificate of Hobson’s Choice, dated the 20th October, 1739, and the plot therewith on the same, returned into the land-office by the deputy-surveyor, and the memoran dums made on the said certificate.
    The plaintiff’s counsel objected to the showing the certificate, plot and memorandum in evidence to the jury. But the Court being divided in opinion, the plaintiff’s counsel prayed leave to except.
    
      3d. And the defendant, to prove his location of Hob-son’s Choice, according to the location of the same on the plots returned in the cause, offered in evidence to the jury, a plot and certificate made of the same land, made by the surveyor of Prince George’s county, and the same person who made and returned the certificate and plot, returned into the land-office, on which the grant for the said land issued ; and offered to prove that the certificate and plot, so offered in evidence was delivered to John Nelson, the patentee of the land, by the said surveyor. To which evidence, the plaintiff’s counsel objected : And the Court {Hanson and Thomas, judges) gave their opinion that the evidence was improper. To which opinion the defendant excepted.
    
      Chase and Paca, for plaintiff'.
    
      fenings and Stone, for defendant.
    Chase, for the plaintiff.
    The defendant takes defence for part of a tract of land called Hobson’s Choice.
    
    The certificate and grant of Hobson’s Choice, expresses its 30th line thus : “ then north ten perches to the first line of Charles Carroll’s land.” The plaini.ifflocates Hobson’s Choice from the end of the 29th line to the end of the first line of Charles Carroll’s land, called Carroll-ton. The defendant locates Hobson’s Choice, from the end of the 29th line, north 20 perches, to the second line of Carroll’s land, called Carrollton.
    
    Two objections are made :
    1st. The grant of Hobson’s Choice cannot be offered in evidence, because it is variant from the plot.
    Rules of evidence must be mutual, and will apply a:, well to the plaintiff as to the defendant. And if the. plaintiff claims land by one description in his pleading.", he cannot make out his title by evidence of land of an other description; cites 2 Roll. Abr. 677. pl. 1. e. 2. Neal 
      v. Sands. S. C. 2 Salk. 385. 660, 661. Fin. Abr. Trial, 348. pl. 1. S. C. Gilb. Evid. 240. 5 Bac. Abr. 212. Trials per pais, (6th edit.) 400. 1 Stra. 595. 4 Bac. Statutes, 657. Dyer, 161. pl. 46. Vin. Abr.. Trespass, 547. pl. 6.. 540. pl. 2. Stra. 1171.
    Where there are course and distance and boundaries, and the latter can be proved, the first is considered surplusage and is always rejected; because the greater certainty is to be preferred. It is a mathematical truth, that the land described in the certificate and grant of Hobson,s Choice, and on the plot, (which is part of the declaration of the plaintiff, and part of the defendant’s plea or defence of title,) is not the same land, but different.
    'There are two modes of declaring in ejectment. A plaintiff may declare for one hundred acres of plantable land, called Black Acre, and it is good; or he may give a further description, and add the abuttals or boundaries, and courses and distances, and although they are not necessary, yet he is obliged to prove them as alleged, otherwise the defendant would suffer a disadvantage, because the plaintiff claims by one description, yet shows title to another. If the plaintiff will undertake to set forth the boundaries and the course and distance, he must take care to set them forth and show that his title, that is, his patent or deed, corresponds, to such description, although it is not necessary to be thus particular. Salk. 661. ■ So it is of a libel, you may declare either in the -words or the sense ; if in the words, there is the least variance, as a letter which changes the word, it is fatal. So if one will recite a statute, though not obliged to do it, yet he must recite it truly. 1 Stra. 214. A plaintiff may, and it is the common practice, to declare for a whole tract of land, and locate on the plot only a part of it for his pretensions. Plots were introduced in the room of a view, to make the place plain and certain to •the jury, and they become part of the plaintiff’s allegation against the defendant. A warrant, resurvey and plot may be considered as a new assignment, and an ascertainment of the place where the trespass and ejectment was committed, and as part of the plaintiff’s declaration. Law of Tresp. 146, 147. The same rules of evidence have been adopted, and the same variance is fatal, between the title and plot, as between the title and the declaration. It has been universally ruled, that if a tract of land is laid down for pretensions, or for illustration, and the grant varies from the location on the plot, it is not admissible in evidence, with this exception only, that you -may adopt a greater instead of a less certain description, as rejecting the course and distance to go to a tree or other boundary, artificial or natural, but in no other case pan it be done. A fault in the description of the trespass is matter of substance, and not of form only. 2 Raym. 986. In trespass or ejectment, the place is descriptivo of the fact, and must be proved, and every part of the declaration is descriptive. Trespass for an assault and battery, or for taking goods, is transitory, and may be laid in a different county from that in which the injury was done; but trespass quarc clausum fregit is local, and must be laid in the county h’here the land lies. 5 Bac. Abr. 197. 202. Law of Trespass, 34, 35. 1 Sira. 646. Salk. 290. pl. 29. Salk. 453. pl. 2. As trespass quare eausum fregit in Black Acre in Anne Arundel county, and evidence of a title or grant in Baltimore county. See Gilb. Evid. 236. 240. Gilb. Ejectm. 61. 5 Bac. Abr. 212. 2 Salk. 661. 385. 1 Stra. 595. Fin. Trial, 348. pl. 1. Old Law Evid. 227. pl. 35. 2 Roll. Abr. 677. pl. 1. and 2. Golds. 124. In replevin the taking was alleged to be in London, and the proof was of the taking in Surrey, the variance was held to be fatal, Select Cases of Evid. 94. Assumpsit to deliver “ good merchandizable wheat,” and evidence to deliver good second sort of wheat, held to be a-fatal variance. 1 Raym. 735. Where there was a power to make leases generally, and a nowcr which had, a restriction, was offered in evidence, and was held to be a material variance. 2 Raym. 793. In the same case a lease rendering 15l. was set forth, and evidence was offered of a lease rendering 15l. and three fowls, and it was held to be a fatal variance.
    2d. That the defendant should not be admitted to offer any evidence to support his location of Hobson’s Choice, in its 30th line, because the said line from the end of the 29th line,' striking on the second line of Carroll’s land, is contradictory to the certificate and the grant which is expressed, “ north ten perches to the first line of Mr. Charles Carroll’s land.” Gilb. Evid. 7. Records are authentic beyond all contradiction. Co. Lift. 260. a. 2 Bac. Abr. 306. Gilb. Evid. 98. Faugh. 77. 5 Bac. Abr. Trial, 219. Gilb. Evid. 93. 164. 48. 53. 76. 3 Bl. Comm. 24.
    Parol evidence is not admitted to contradict the words of a will, deed or agreement, in writing; otherwise, if it be only to explain. 2 Bac. Abr. 309. 2 Freem. 53. 2 Eq. Abr. 415. c. 1. 5, 6, 7. 1 Vez. 231. 457. 2 Vez. 222. 299. 2 Stra. 1261. 3 Wils. 275. 2 Atk. 383. 373. 388. 560. 1 Stra. 210. 2 Stra. 794. No parol evidence is admitted to explain a deposition. 1 Wils. 34. Doug. 566. 24. 1 Bro. Rep. in Ch. 84. 156. Cases temp. Talbot, 240. 10 Mod. 42. 2 Sid. 145. 3 Lev. 387. 2 Stra. 210. 12 Mod. 185, 186. Preced. in Ch. 138. Cro. Jac. 640. Cro. Eliz. 328. 2 P. Wms. 66, 67. 2 Bro. Ch. Rep. 219.
    
      Jcnings, for the defendant.
    In his argument on the location, before the jury, contended, that if the word first had been omitted, there would have been no dispute, and that on considering the whole matter, it must strike every one that the word first was erroneously inserted in the transcribing of the certiScale. It would then have run “ to the line of Carroll-ton ”
   The defendant appealed to the court of appeals, where the suit abated at May term, 1783,  