Upon the consideration of this case, we are of opinion, that the motion on the part of the plaintiff be denied. The partition on the map was reduced to practice, by the actual survey of Henry Frey, soon after it was made. That survey was made for the proprietors, and if possessions have been taken and held accordingly, the proprietors, and those claiming under tjiem, ought certainly, after a lapse of forty years, to be concluded from contesting with each other, the correctness of the actual locations. It was a matter of fact left to the jury, whether the lines of that ancient' survey, were not now to be ascertained, and whether the recent survey of Henry Frey, and the possessions and settlements did not correspond with the original survey. The verdict of the jury ought to put that fact at rest, and the repose of the settlements, and public quiet, would seem to require, that a verdict in favour of a survey so long established, should not be disturbed.
The questions of law were correctly decided upon the trial. It is a well settled rule, that a verdict cannot be given in evidence against a person, who was not a party or privy to it; and the act of the legislature most clearly did not, and could not settle the question of the actual lor cation of the lots.
Rule refused.