Nathaniel Heyward vs. Eliza Searson, 2 McMul. 231

Curia, per Richardson, J. Where a trial for land has taken place, and a verdict been given, the Judge certifies the surveyor’s plat; as a memorial, that that very plat is the one referred to by the jury, as presenting an accurate map of the land adjudged to the plaintiff or the defendant. But in the case supposed by the motion, the plaintiff having before discontinued his action, was already out of Court; as much so, as if the discontinuance had been ordered, years before; and no question having been decided, the Judge could hold no cognizance of the rights of the parties. Win. F. Hutson, for the motion. J. D.

Edwards, contra. The certificate of the plat would, therefore, have been altogether extrajudicial, and a piece of gratuitous testimony, in a contingent case, which had never been tried, and might never arise. As to the provisional rights of the defendant, which may arise under the Act of 1744, if the plaintiff shall not recommence his action within two years after the present discontinuance, they will depend upon such omission. And should that occur, the land that N. Heyward will have so abandoned, by his neglect, must, I apprehend, be such as he has described in his declaration.

But the Court ought not to do an extrajudicial ex parte act, upon the mere assumption, that such neglect is to take place; on the contrary, both parties should be left precisely in the situation they have been placed by the discontinuance. The defendant to enter up judgment, and the plaintiff to look to the consequences that may arise under the Act of 1744, if he should neglect his right of bringing a second action within the time limited. The motion is, therefore, dismissed. O’Neall, Evans, Butler and Wardlaw, J J., concurred.