delivered the opinion of the court
The main question here is whether the land in controversy lies within the county of Clinton. If it does the judgment is correct. The contention is as to the legal location of the 'division line between the counties of Clinton and Centre. The ■defendant in error relies on the location made under the Act ■of 25th February 1859, Pamp. Laws 83.
By that Act, commissioners were appointed “ correctly to irun and mark distinctly the boundary line or lines between the *457counties of Centre and Clinton ; and it shall be the duty of said commissioners to lay down on their drafts the tracts through which the lines may pass, agreeably to the Act of Assembly creating said counties and the supplements thereto.” They were further directed “to make out three drafts, one of which shall be filed in the commissioners’office of each of said counties, and the other to be filed in the Surveyor General’s office, and there kept as a matter of record.” The Act further declared that “the report of the commissioners shall be final and conclusive.” The commissioners ran and marked the boundary line between the two counties, and made and filed the drafts required by the statute. As they ran, marked and located the boundary line on the ground, the laud recovered by the defendant in error is undoubtedly within the county of Clinton.
The plaintiff in error denies the power of the commissioners to make the location which they did make. Inasmuch as it was a departure from the location or-surveys previously made he claims it was not authorized by the Act appointing them. He attempts to maintain this view by an extract from the opinion in Keller v. Young, 28 P. F. Smith 166, where the pui'posc of this commission was considered. We still adhere to that view of the statute; but it does not support the contention of the plaintiff in error here. We were not there discussing the power of the commissioners to correctly run and mark the boundary line on the ground, thus locating it; but we were considering their absence of power to change the location of any tract of laud. We said they could not change the line of any tract, nor move its cornel’s ; that they could neither relocate any tract of land, nor decide on which side of the county line any tract might lie We distinctly declared the power was given to them to locate the boundary line and establish the evidence thereof on the ground and in their report. This clearly negatives the construction sought to be put on that case.
Doubt and uncertainty as to the correctness of all previous locations and surveys, led to the appointment of this commission. Their duty was not to ascertain where the boundary line had previously been run and marked; but to determine where it should rightly have been run and marked ; and their work and the report thereof was to “ be final and conclusive.” The correctness of that location cannot now be questioned in this case.
Had there been any disputed fact in evidence it would have been error to take the case from the jury, but we discover none such. The first point submitted by the plaintiff in error is correct as an abstract proposition and might have been affirmed without benefiting him. Much therein was wholly irrelevant in the case, and the refusal to affirm the point is not cause for reversal.
*458Under the whole evidence it would have been- the duty of the court to' set aside a verdict in favor of the defendant below. It would have been more regular to have given the jury binding -instructions before sending them out, yet it was not substantial error if he-did so instruct them when he discovered they were about to render a verdict contrary to the law of the case: Whiting v. Lake, 10 Norris 349. None of the specifications of error is sustained.
Judgment affirmed.