The plaintiff, in this case, claims under a warrant and survey, and has paid all the purchase money. The defendant claims under a settlement made since the plaintiff’s survey was returned, and contends that in fact no survey was ever made on the ground. It was submitted to the jury on the point, whether a survey was made or not; and they found for the defendant. We have had a report of the evidence from the judge, before whom the trial was had; and the verdict appears to have been so much against the weight of strong testimony, that I should not have had one moment’s hesitation, about granting a new trial, were it not, that there have been two verdicts for the defendant. I have often said and now repeat, that after two verdicts on a simple matter of fact, it must be a very extraordinary case indeed, in which I could be induced to grant a new trial; because, although the court have an undoubted right to grant a third trial, yet it ought to be, in general, presumed, that where two juries have agreed, they must be in the right. In conformity to this principle, I should be for letting the present verdict stand, if I did not think that there was involved in the facts of this case, matter of law which has not been attended to by the jury. That some part of the plaintiff’s survey was made and marked on the ground, was so incontestably proved, that I must suppose the jury had no doubt of it. I presume, they were of opinion, that the lines were not all run and marked, and therefore the survey was void. Now there was strong evidence,that the defendant, before he moved *30on the land, knew of a survey having been made for the plaintiff, and returned to the' land office. If that was the case, and the plaintiff had been guilty of no improper conduct, it would be against equity, that the defendant should deprive him of his right, even though there was some irregularity in the survey, over which he had no control. I should wish that the cause might be reconsidered under this aspect, for I am very strongly of opinion, that the plaintiff has been injured. Prom the present arrangement of the courts, it is not probable that this matter will ever again come under our consideration. I make no doubt, but justice will ultimately prevail, and my conscience is well satisfied, by consigning the cause for another trial, to the impartial tribunal appointed to take cognisance of it.
Ye ates J. concurred.Judgment reversed, and New trial awarded.