(who delivered their opinion,) after stating the facts, adverted to, and relied on Jackson v. Freer, (17 John. Rep. 31.) He said, the question there, as stated by Spencer, Ch. J. was, “ Which shall prevail, the actual location of the lots on the ground, by marking and numbering trees at the corners, and by marking the lines of the lots, or the courses and distances which the map represents the lots as entitled to 1” The Court decided in favor of the actual location. The survey was considered as the act of the parties, though made by the agent of the surveyor-general, as in this case. In Jackson v. Ogden, (7 John. Rep. 241,) it was said, that when the map and survey do not agree, a practical location, acquiesced in, is entitled to great weight.
In this case, the evidence of acquiescence m the location by the lessors of the plaintiff, was not very conclusive; and further testimony on that subject might, have been satisfactory. Such was offered after the counsel had commenced summing up, but rejected. It was doubtless, discretionary with the Judge, to receive or reject it; and I cannot say that his discretion was not properly exercised. From the case as it stands, I think a new trial should be refused.
New trial denied.