deed from the said William Peddicoart, and Sophia his wife, did not bar the plaintiff from his recovery in this action. Martin, (Attorney General,) for the Plaintiff. CHASE, Ch. J.(a). The court are of opinion, that the deed from William Peddico art, and Sophia his wife, to the defendant, does not bar the plaintiff in this case; and they direct the jury accordingly. The defendant excepted. Verdict and judgment for the plaintiff. The defendant brought a writ of error, but nonprossed it at November term 1804. (a) Duvall, J. concurred. MAY 1802 Peddicoart VS Rigges GENERAL COURT, MAY TERM, 1802. CHENEY'S CHENEY'S Lessee vs. WATKINS. EJECTMENT. The defendant had taken defence warrant at a preceding term, and the lands were cated on the plots returned in the cause. on Defence on a warrant may be changed to gene. 10- ral defence on the Johnson moved for leave to change the defence on warrant, to that of general defence. THE COURT. Let the defence be changed, upon the defendant's paying the costs of the present sur vey. defendant's paying the costs of the survey GENERAL COURT, MAY TERM, 1802. NORWOOD VS. SHIPLEY. TRESPASS Q. C. F. Plots made and returned. recover an action of trespass must show title or that he was in the THE COURT in this cause determined that the plain- The plaintiff to tiff must show title to the land on which he charges the trespass to be committed, or he must show that he was in the actual possession of the place where the actual possession &c. when, &c. of the place where MAY 1802 trespass was committed, at the time when it was com mitted. Ridgely, Mason and Shaaff, for Plaintiff. Martin, (Attorney General,) and W. Dorsey, for Defendant. if one party gets a commission to GENERAL COURT, MAY TERM, 1802. NORWOOD'S Lessee vs. OwINGS. EJECTMENT. The defendant at the preceding take testimony on term obtained a commission to London for the pur the terms that whether it be re. turned or not the pose of taking testimony, upon the terms that if the cause shall not, on that account, be commission was not returned at the present term it continued at the ensuing term; yet should be no cause for if it be returned continuance of the action. executed at the At the present term the commission was returned, ensuing term, the adverse party has with testimony taken thereunder; and on motion of a right to a continuance till he has time to examine the testimony, that he may the plaintiff's counsel, have an opportu THE COURT directed the action to be continued, nity of disproving it if he thinks ne on the ground that the commission and testimony cessary. having been returned at this term, the opposite party should have time to examine the testimony, and if he thought proper, to endeavour to counteract it. That although the defendant was not entitled to a continuance, agreeably to the terms under which the commission was granted, yet the plaintiff was. Ridgely, Mason and Johnson, for Plaintiff. Martin, (Attorney General,) Key and Shaaff, for Defendant. If A purchases stills of B & pays him the purchase GENERAL COURT, MAY TERM, 1802. KIRWAN US. RABORG. ASSUMPSIT for money had and received. The evi money, and B af- dence was, that the plaintiff bought of the defendant terwards takes the stills in possession certain stills, for which he paid him 400 dollars. That the proper reme dy is trover, and A cannot support assumpsit sgainst B to recover back the purchase money On paying costs a party may amend from assumpsit to trover the defendant afterwards took possession of the same stills, and then had them in his possession. This action was to recover back the money paid. Scott, for the defendant, objected to the form of action. THE COURT. The action is not well brought, it should be trover. Harper, for the plaintiff, had leave to amend, on paying the whole costs which had accrued in the action down to and including the present term. GENERAL COURT, MAY TERM, 1802. WILSON VS. BOYER. of mo A guardian has no right to retain money received by him from the exe cutor unless the sed a final account with the orphans court, and an or der had been pass ed by that court to pay over such mo ASSUMPSIT for money lent. It appeared in evidence at the trial, that the plaintiff was executrix her deceased husband, and the defendant was guar- executor has pas dian to the children of the deceased. The defence set up was, that the guardian had received the ney, for which the action was brought, from the plaintiff as executrix, and that he had a right to retain it as guardian to the children. No settlement of any account in the orphans court by the executrix was proved. Boyd, for the plaintiff, prayed the court to direct the jury, that unless the defendant could prove that the plaintiff had settled a final account with the orphans court, and there was a balance in her hands as executrix, and an order from the orphans court to pay it over to the defendant as guardian, he had no right to withhold the money. THE COURT gave the direction accordingly. Brice and M Mechen, for the defendant. ney to the guardï Where a grant of land contained the following de GENERAL COURT, MAY TERM, 1802. KIRKPATRICK's Lessee vs. KYGER. EJECTMENT for a tract of land called Dickson's scriptions, begin- Pleasure, lying in Washington county. The defen ning at a bounded white oak stand dant took defence on warrant, and plots were return ing about 20 per ches on the E side of Anteeatum, running thence N, &e (twelve courses), then S. 84 de ed. At the trial the plaintiff offered in evidence the cergrees W 243 per- tificate of the land called Dickson's Pleasure, survey73 perches on the ed the 1st of March 1760, and a grant thereof to ches, to the end of fourth line of Good Luck, then with Michael Kirkpatrick, dated the 7th of October 1760, said land reversed S. 2 degrees W.73 perches, S. 82 de describing the same as "beginning at a bounded ches. N. 58 de- white oak, standing about 20 perches on the east side grees W. 46 per grees W 75 _per degrees W 20 per ches, then $ 73 of Anteeatum, running thence N." &c. &c. the thirches, &e Held, teenth course is "S. 84° W. 243 perches, to the end that the true loca was to run the of 73 perches on the fourth line of Good Luck, then grees W. 73 per- with said land reversed S. 28° W. 73 perches, S. course 5. 28 de ches, reversed with course and dis tance to the expressions in the grant Good Luck, then 820 W. 46 perches, N. 58° W. 75 perches, then S. 73° cording W. 20 perches," &c. &c. The tract of land called Good Luck was surveyed the 20th of September 1742, for Daniel Dulany, and granted to Jacob Funk on the 28th of February 1753, beginning at a bounded white oak standing on the west side of Antecatum, within 10 perches thereof, and running N. 30° E. 84 perches, then N. 73° E. 54 perches, then S. 140 perches, and then by a straight line to the beginning tree, containing 50 acres. Shauff, for the defendant, contended, that the plaintiff had not located Dickson's Pleasure on the plots, according to the grant. That the defendant bad counterlocated the plaintiff's location. The expression in the grant is S. 82° W. 46 perches, and the line cannot be elongated, whereas the plaintiff has located it N. 121 perches. The true meaning of the grant is to reverse only one line of Good Luck; and if it is reversed, the length of line cannot be exceeded. There is no call in the grant to authorise the extension of the line. As there is a variance between the grant and the location on the plots, the plaintiff must fail to recover. evidence does not support his location. His Mason and J. Buchanan, for the plaintiff, contended, that there was a call in the grant of Dickson's Pleasure which must be gratified. That the line must continue to run with the land two courses, which will spend the number of perches. That all the locations on the plots were admitted, but Dickson's Pleasure, and that the expressions used in the grant of that land, must be gratified. CHASE, Ch. J. The court are of opinion that the true construction of the grant of Dickson's Pleasure is to run the course Š. 28° W.73 perches reversed with Good Luck, then course and distance according to the expressions in the grant. A jaror was then withdrawn, and leave given to amend the plots, on payment of the costs of the term. MAY 1802 Kirkpatrick Kyger GENERAL COURT, MAY TERM, 1802. RINGGOLD'S Lessee vs. MALOTT. EJECTMENT for a tract of land called The Num The time when a manor was laid out is a matter of there being no re being fact for the jury, and cord thereof to be found de The opinion of der of Four, situate in Washington county, and the judge of the land office cannot conclude the par The plaintiff at the trial to make title to the land ties as to a questi to on of law or fact. general The Propri- on with the judge Lordship in the declaration mentioned, produced and read of the land-office as to the extent & operation of in terfering grants: hereby quan the be and it is the pecuhar province of the jury to decide facts The relation of a grant to the cer tificate of survey so as to over reach mesne grants, is founded on a prin ciple of equity, & is a fiction of law. An attempt to the county as you shall be directed to lay out same, and within such metes and bounds as may most profitable to his lordship; and return your certificate of survey thereof into his lordship's land of- ry's reserve was a take up land with in the proprieta fraud, & no qui acquired in the fice, with all convenient speed, thence to be trans- table interest was mitted to the examiner general for due examination; land so taken up. and for your so doing, this shall be your warrant. Given under his lordship's lesser scal at arms, 28th day of May, anno dom. 1724. proprietary as to all lands be ong this ing to him at the time of the act of confiscation |