after stating the facts, delivered the opinion of the court.
The plaintiff’s location does not apply closely to the spot surveyed, but may be termed a loose application; such a one as according to the practice of the day, might be reasonably applied to the land in dispute. As Blair’s survey had not been returned, he had a right to extend his lines so as to cover any land not appropriated to another person; but if there had been a survey for another person even on a shifted application which had been returned, or Blair was informed of it, he had no right after so long an interval to extend his lines to the prejudice of that person, even although he might have been ill used by the surveyor in making the original survey.
Thus was the law very properly laid down by the late Judge Smith, before whom this cause was tried, and he intimated a pretty strong opinion that Blair or his agents must have had notice of Biddle’s survey, because there was evidence of its being made and marked on the ground, and it had been regularly returned into the office of the surveyor general. It is not our custom, when we think the verdict has been against a strong weight of evidence, to enter into a minute discussion of the testimony. We are of opinion on the whole of this case, that it will be conducive to justice to submit the matter to the consideration of another jury. We therefore order that a new trial be had.
New trial awarded.