Sumter

V.

Bracey.

This was a case which turned upon the lines of the lands in dispute, and more particularly one line of the

tract.

It appeared from the plat returned by the surveyor appointed by the court, with the assent of both parties, that a line of marked trees which had been made on the original survey, when the tract had been run out, was found, but it did not correspond exactly with the course and distance laid down in the original plat annexed to the grant, nor did the corner tree which was found, extend out as far as the distance called for, which left the land in dispute in the plaintiff's survey; and the question was, which should be the true rule, the line and corner found, or the course and distance?

When, after argument, the Judges determined, that in all cases where the original marked trees and corners, or natural boundaries can be found, they should govern in making resurveys of lands, whether the quantity be more or less than is mentioned in the original grant. Because they are the original metes and bounds fixed by the grantee himself or his agent, as well as by the state, at the time of making the original survey; and it will not be permitted either to the grantee or the state, afterwards to say that they will not be bound by them; for these lines are generally notorious in the neighbourhood, and the surrounding tracts are always governed and bounded by those that are older; and unless they were taken to be the true lines, it would be a deception and fraud on all the younger grantees. But in all cases where no lines or corners, or natural boundaries can be found, then courses and distances must be resorted to, as the next best rule for establishing lines.

New trial refused, and rule discharged.

Present, GRIMKE, WATIES, BAY, BREVARD and LEE.

Executors of JOHN WILLSON ads. MINOR WINN.

Columbia, 1804.

SPECIAL action on the case, tried in Fairfield dis- A release to trict. Verdict for plaintiff. Motion for new trial.

one co-obligor to a bond, is a release and

discharge to them; and the

the whole of

assignee

of bond

of such re

cover the ba

lance due on

the bond from

This action was founded on the special guaranty of a bond, assigned by the deceased Willson in his life-time, to the plaintiff Minor Winn. It appeared, that in the year 1784, the bond above mentioned was given by Adam (not conusant Fowler Brisbane, John Winn, Hugh Milling, and James lease) may reBrown, to the deceased John Willson, for 4351. sterling. Some time after the bond became due, John Winn, of the obligors settled with the obligee Willson, for one-fourth part or share of the bond, by delivering him a negro and a horse, which Willson accepted of for his full proportion of the debt, and executed a release in due form, for his share of the principal and interest due on the said bond.

one

his

This bond afterwards, in some transaction between Willson and the plaintiff, Minor Winn, was assigned over to the latter; and at the time of the assignment, Willson, by an agreement in writing under his hand, agreed to guaranty the payment of the balance due on the said bond. The bond was afterwards put in suit against the other obligors, but nothing could be recovered from them, as they pleaded the release to John Winn in bar of the obligation. In the mean time, Willson died, and this suit was brought against his executors, upon the deceased's guaranty, when a verdict was given by the jury for the balance of principal and interest due on it, after deducting the payment made by John Winn.

The present was therefore a motion for a new trial, on the ground, that the presiding Judge had refused, on the trial, to let the defendants go into proof, in order to

the assignor,

where thereis a guaranty of the payment.

Executors of show that the other obligors were fully able and solvent,

243.

Willson

ads. Winn.

and could have paid the balance due on the bond, if due diligence had been used, and that it was the plaintiff's own fault that the money had not been recovered.

For the plaintiff, in reply, against the motion, it was urged, that such kind of testimony was totally irrelevant, as it was very immaterial whether the three other obligors to the bond were solvent or not, as the release to one of the co-obligors, John Winn, was a release to the whole, if they chose to take advantage of it. Consequently, the bond had been by the testator's own act, cancelled and destroyed, which left him responsible on his guaranty.

The Judges, after hearing counsel on

both sides,

were unanimously of opinion, that the release of one coCo. Litt. 232. obligor to a bond, was a release to the whole of them, 1 Esp. Dig. and operated as a full discharge in law, of the money due thereon; consequently, the deceased became liable to make good to the assignee, the balance due upon it, upon his guaranty.

Blanding, for plaintiff.

New trial refused.

Egan, for defendant.

Present, GRIMKE, WATIES, BAY, BREVARD and LEE,

Judges.

2

The JUDGES of FAIRFIELD COUNTY against PHILLIPS.

DEBT on an administration bond. Plea in abatement, that there were no such officers in existence, as the judges of Fairfield county, &c. which plea was sustained by the circuit court.

This was a motion in arrest of judgment. But it was refused by the Judges unanimously, as they were of opinion, that since the abolition of the county court system, and the consequent cessation of all the county court judges from office, the suit should have been brought in the name of the ordinary of the district, to whom the jurisdiction of all matters relative to the probate of wills and testaments, and granting of letters of administration of intestates' estates, &c. have been by law transferred, and to whom it originally belonged, as a matter peculiarly belonging and appertaining to his office. And that this point had been determined in a case from Abbeville district, where a suit had been brought in the name of the county court judges there, against Stephen Bostwick..

The motion was therefore refused, and the decision of the circuit court confirmed.

Present, GRIMKE, Waties, Bay, BREVARD and LEE, Judges.

Columbia, 1804.

Where a jury

in a criminal

The STATE against CALEB JONES,

and

The STATE against THOMAS M'CARTAN.

THESE were two criminal cases, tried in Spartanburgh

ease will find district, in which the defendants were convicted of larceny,

a verdict con

trary to, or

without evi

dence, as well

as against the opinion

of

Motions for new trials.

Judge WATIES, before whom the defendants were tried the presiding and convicted, in his place on the bench, reported to the Judge, this court will, up- other Judges, that in his opinion, there was no evidence of the Judge offered in these cases, sufficient in law to convict either of who tried the

on a report

new trial with

cause, order a the defendants, and so he charged the jury. But that such were their prejudices against the defendants, that they con victed them both, against his opinion and direction.

out argument.

Whereupon the court, upon his report, ordered a new trial, without hearing argument.

Present, GRIMKE, WATIES, BAY, BREVARD and Lɛɛ, Judges.

Columbia, 1804.

Where a jury take upon themselves to presumefraud where none is

MELINUS C. LEVINGSWORTH et al. ads. JOHN Fox.

TRESPASS to try title to lands in Edgefield district. Verdict for plaintiff. Motion for a new trial.

This was an action of trespass to try titles to land on proved, the Savannah river, in which the Jury took upon them to find

court will

grant a new that a release produced and given in evidence by defendant,

trial, as the

due execution was fraudulent, without any proof of its being so, or of

of the law de

pends upon a any circumstances from which it could be strongly instrict adhe- ferred.

rence to the

rules of evidence.