Llewellin's Lessee v. Fendall

At the Assises held for Charles County, in April, 1767, the following bill of exceptions was taken, viz. The plaintiff, in order to support and prove his location on the plat, of the land in the declaration, offered as a witness one William Simpson, who deposed to the Jury that Richard Llewellin, the father of the plaintiff’s lessor, under whom the plaintiff claims, forty-eight years ago, or thereabouts, employed him and one William Johnson, deceased, to carry the chain on a survey of the said land called-West-wood Manor; that he never was a chain-carrier but once on that land, and then the chain-carriers were sworn; that the survey was then begun at the place represented on. the plat by the letter A. and from thence to the place represented on the plat by the letter B. where the deposition of this witness’s father, Thomas Simpson, deceased, was taken, from thence a north course, the number of perches of which he did not remember, and from the end of the north course, the said survey was run by a cross-line to Zachia Swamp, as near the water as they could go for mire, then through the marsh by a straight course, to the best of his knowledge, down the creek, and at times very near the creek, to the beginning: To encounter which evidence, the defendant’s counsel offered to read in evidence to the Jury a commission, dedimus potestatem^ with the qualifications and proceedings of land commissioners in virtue of the act of Assembly, made in the year 1718. (a) But the counsel for the plaintiff objected to it. And the Court declared their opinion that the same should not be read in evidence to the Jury.

To which the de.fendant excepted. ²⁴² From the notes of A. Chase, Esquire, the following appear to be the objections made to the commission, and the proceedings of the commissioners under it, viz. 1st Objection. It no where appeal's that the commissioners were ever qualified by taking the oaths to the government, and the oath of office. 1 Stra. 255. 260. 2 Sid. 28. 62, 63. 1 Stra. 8. 264. Plow. 485. 2d. It does not appear that there was any choice of the commissioners, by any or all of the parties concerned in point of interest, or that they obstinately refused, or wilfully delayed to make such choice. 3d.

It does appear from the whole of the proceedings that they were of one side only. Richard Llewellin petitioned. John Walker and others are said to have intruded, but never appear, and finally the commissioners who did meet, adjudged Llewellin to pay the costs, for that there is not any contending party herein, nor any damage appears to be done. 4th. The commissioners when they did meet, ordered the surveyor to run from the first tree east 100 degrees, north to the second boundary on Westwood Creek, and took a number of depositions to prove the second as well as the first tree, and yet when they come to enter up their judgment or decree, they run east one degree 15 minutes, north to the second tree. 5th.

The commissioners have exceeded their authority in varying the courses and setting up boundaries, where there never was any. The power to new mark not being meant to extend so far as to make boundaries, where the certificate calls for none. 3 Fin. (Authority) 420. 417. Salk. 474.

Holt, 505. 2 Mod. 202. Holt, 215. 6th. The only person concerned, appears to have been so little satisfied with the justice of the proceedings of the commissioners, that he appealed to the King in Council. Proceedings in August, 1720, dissented to 19th Jidy, 1721. 7th.

The proceedings are manifestly unjust on the face of them. The commissioners allow only 1,456 acres to ²⁴³ Westwood Manor, though granted for 1600 acres, the plaintiff thereby losing 144 acres, and it is allowed by the defendant to contain 1,416 acres. 8th. The proceedings of the commissioners cannot be given in evidence, because not laid down on the plats, because they are variant in the courses, distances and quantity, and set up a boundary not laid down, and may be compared to the case of a certificate which cannot be offered in evidence, unless it correspond to a tittle with the plat. Jennings’ notes.

The proceedings of the commissioners are under a law ■which should be remembered with horror, and was introductory of a mode of proceeding, which might deprive a man of his property without a legal trial, and, therefore, it was justly dissented to by the Lord Proprietary. The commissioners acted with remissness ; they direct the surveyor to run one course, and run another in their return. They direct the surveyor to run 100 degrees north to the first boundary,, and yet determine the line to be east 1 degree 15 minutes north. Their work is different from the plat.

It is a settled rule that the party shall give no evidence of any matters but what is laid down on the plat. Therefore, if the defendant has not made any location of land, as laid out by the commissioners, their proceedings should not be read in evidence. The differences between the plat, and the running of the commissioners, • are: 1st. on the plat the running is from A. north 84 degrees, east 357 perches to B. a tree and stump. The running of the commissioners is E. 1 degree 15 minutes, N. 351 perches. 2d.

The 3d course in the plat, is W. 354 perches. The commissioners’ running is W. 351 perches. 3. On the plat, the E. and W. side of the land, are parallel. In the commissioners proceedings they are not so. ²⁴⁴ A question arose in this case, concerning the bounds of Westwood Manor.

The plaintiff contended, that, as the expressions of the certificate bound him on the W. with Herring Creek, he must adhere to this natural boundajy. The defendant, on the contrary,