The plaintiff in this cause moved for a new trial, because the verdict was against the evidence and against the charge of the court. The judge of the Circuit Court refused a new trial, not, as he has declared, that he approved of the verdict, but with a view that the case might be submitted to the consideration of this court.
The plaintiff claimed under a warrant dated 1st July 1784, reasonably descriptive of the land in dispute, on which a survey was made on the 8th November 1785, and a patent issued on the 30th January 1787. The defendant had no office right; but made title under a settlement made on the land, after the date of the patent; so that the only ground he had to stand on, was that in fact no survey was ever made for the plaintiff. It was very properly given in charge, by the Judge who tried the cause, that the return of a survey, was strong *38presumptive evidence, that a survey was made; and that it ^ay on the defendant to take off the force of that presumption. Where a cause turns very much on matter of fact, and especially where the court are of opinion, that a new trial should be granted, it is notour custom to make many remarks on the evidence. I shall therefore only say, that the presumption arising from the return of survey,was very much strengthened' by positive testimony of lines run and an actual survey made on the ground. So much so, that I must say, I think the weight of evidence was greatly against the verdict. This being the case, and this appearing to have been the opinion of the Judge, before whom the cause was tried, I am of opinion that there should be a new trial.
Yeates J. concurred.New trial awarded.