#### *Nathaniel Heyward vs. Eliza Searson.*

Where a plaintiff, in an action of trespass to try title, has discontinued his suit, he has no right to call upon a Judge tb certify his plat, when he is not properly before the Court. The certificate of the Judge, if granted, would be *exira judicial.*

*Before*Richardson, J. *at*Gillisonville, *Fall*Term, 1841.

This was an action of trespass to try title, discontinued by the plaintiff.

The defendant moved that she be permitted to introduce her surveyor, appointed by the Court, and swear him to the fact, that he had platted the *locus in quo*; and that the plat produced, represented it; and that the presiding Judge should then certify, that the plat was the one made by the defendant’s surveyor, under a rule of survey. The motion was refused, and the defendant appeals, and moves to reverse the decision, on the annexed grounds.

*Grounds of Appeal.*

1. Because the Act of 1744 provides, that if the plaintiff, in an action of ejectment, suffers a non-suit or discontinuance, he shall be barred, unless he re-commence within two years; which Act would be a nullity, unless the *locus in quo*is defined.

2. Because by our practice, the description of the *locus*in the declaration is loose and general, and without a plat, does not exhibit or fix the land in dispute.

3. Because the practice of the Court, is to certify the plat used on the trial, for the reason stated in the second ground, and the reason holds equally good in a case of non-suit or discontinuance.

*Curia, per*

Richardson, J.

Where a trial for land has taken place, and a verdict been given, the Judge certifies the surveyor’s plat; as a memorial, that that very plat is the one referred to by the jury, as presenting an accurate map of the land adjudged to the plaintiff or the defendant.

But in the case supposed by the motion, the plaintiff having before discontinued his action, was already out of Court; as much so, as if the discontinuance had been ordered, years before; and no question having been decided, *232the Judge could *hold*no cognizance of *the*rights of the parties.

*Win. F.*Hutson, for the motion.

*J. D.*Edwards, contra.

The certificate of the plat would, therefore, have been altogether extrajudicial, and a piece of gratuitous testimony, in a contingent case, which had never been tried, and might never arise.

As to the provisional rights of the defendant, which may arise under the Act of 1744, if the plaintiff shall not recommence his action within two years after the present discontinuance, they will depend upon such omission. And should that occur, the land that N. Heyward will have so abandoned, by his neglect, must, I apprehend, be such as he has described in his declaration. But the Court ought not to do an extrajudicial ex parte act, upon the mere assumption, that such neglect is to take place; on the contrary, both parties should be left precisely in the situation they have been placed by the discontinuance. The defendant to enter up judgment, and the plaintiff to look to the consequences that may arise under the Act of 1744, if he should neglect his right of bringing a second action within the time limited. The motion is, therefore, dismissed.

O’Neall, Evans, Butler and Wardlaw, J J., concurred.