Belt's Lessee v. Miller , 4 H. & McH. 536 ( 1771 )

Ejectment for a tract of land called Simms’ Forest> lying in Ce cil comity.

Brins of Exceptions.

The plaintiff located the said tract of land, on the plots returned in the cause, agreeably to the said plots and the explanations thereof, running eleven courses (211 perches) along the road from the beginning at A to B marked on the plots, which lie alleged was near the place where the second hounded tree did stand, then, &c. The defendant took defence for the whole tract, except a few acres in possession of J. W. and located the tract in the same manner the plaintiff had; and for illustration laid the tract down running three courses, (138 perches,) along the road from the beginning at E to F, then, &c„

The plaintiff insisted on the admission of the defendant contained in the said plots and explanations, together with evidence produced that the defendant lived on the land called Simms’ Forest, laid down by the plaintiff, that they had sufficiently proved the location of the land in question from A along the road to B. But the defendant objected that there was a variance of eleven perches in the extension of the land from A to B upon the said plots; and that as the witnesses proved no boundary at the letter B, the plaintiff should have confined himself to the course and distance; and that therefore there was a material variance between the proof and the location.

Hayward, Ch. J. was of opinion, that the matter in dispute was proper to be left to the jury, whether evi«lenco had been produced sufficient to satisfy them that the land called Simms* Forest, in question, did extend to the boundary at B, and that they were the proper judges of the fullness of such evidence; and would give no other opinion as to the variance suggested. The defendant excepted.

Hayward, CU. J. was of opinion that he ought to be sworn generally; and he was sworn accordingly. Tiie .defendant excepted.

Verdict for the plaintiff for the land in the declaration mentioned, as located on the plots returned, beginning at A and running with the road 200 perches as laid down on the said plots, and from thence course and distance round to the beginning; and as to the residue of the plaintiff’s pretensions, verdict for the defendant.