delivered the opinion of the Court.
On the former appeal between these parties, 37 Md., 421, it was decided that the Orphans’ Court had jurisdiction to entertain the petition of the present appellees, and that they were entitled to the relief as prayed, provided they establish by competent evidence that there was an error in the survey of the land purchased by the appellant, whereby it was estimated to contain several acres less than it actually contained ; and provided the appellees were led into the error, in making their report of the quantity sold, by erroneous information communicated to them by the appellant, the purchaser.
It was also decided that to entitle the appellees to relief, it should appear that they had discovered the error, for the first time, recently, before filing their petition, or in other words, that they had not been guilty of laches and neglect, in asserting their rights.
These are substantially the propositions decided on the former appeal, and the case was remanded, to the end that *378the facts might he ascertained, and the rights of the parties finally determined.
It appears from the record that the appellant filed a petition in the Orphans’ Court, praying that issues might he made up, and sent to a Court of Law for trial, in accordance with Art. 93, sec. 250, of the Code, and at the same time tendered twelve issues, and prayed that the same should he sent for trial. The appellees, on their part, objected to the seventh, eighth, ninth, tenth, eleventh and twelfth of said issues ; but made no objection to the first six ; and on their part, suggested three issues, as proper to be sent.
The Orphans’ Court, by its order, directed the three issues tendered by the appellees, to be sent, and also the first six of those tendered by the appellant; but refused to direct the last six of those, suggested by the appellant; and from that order the present appeal was taken.
We discover no error in the action of the Orphans’ Court. There can be no question of the power of the Court to exercise its judgment in determining what facts were in issue between the parties, and material to be submitted to a jury for decision; and to refuse to send issues that were irrelevant and immaterial. Munnickhuysen vs. Magraw, 35 Md., 280.
We have examined the several issues proposed by the appellant, and are of opinion that those proposed by the appellant, numbered from the 7th to the 12th inclusive, were all of them immaterial; and consequently, there was no error in refusing to send them for trial.
It seems to be necessary to notice them briefly.
As to the 7th,- there is no charge or suggestion made in the petition, of a fraudulent combination between the appellant and Dawson, the surveyor, to make a false survey and description of the land, in order to make it appear to contain a less number of acres than it did actually contain ; consequently the seventh issue was not material or proper. *379As decided on the former appeal, the right of the appellees to relief does not rest upon the fact that a fraud was committed by the appellant, or the surveyor ; but upon the fact that an error was made in ascertaining the quantity of land sold, even though it may have resulted from an honest mistake.
(Decided 18th June, 1874.)The 8th, 9th, 11th and 12th issues propose to raise questions with respect to the sale or disposition of the land made by the appellant, after his purchase, which are wholly immaterial to the decision of the question between these parties, involved in the present controversy.
The 10th issue raises questions not material or proper to be submitted to a jury. The fact that the attorney for the appellees received from Mr. Shoemaker, a sum which was believed to be the entire balance of the purchase money was not disputed, on the contrary, it was expressly alleged in the petition, there could be no reason for submitting it to a jury. Ror would there be any propriety in submitting to a jury to find what appeared on file among the records of the Orphans’ Court, as proposed by the 10th issue.
Being of opinion that every material question of fact necessary to be determined, is presented by the issues approved by the Orphans’ Court and directed to be transmitted for trial, the order will be affirmed and the cause remanded.
Order affirmed and cause remanded.