proof to explain any ambiguity or mistake in it. White and Egan's case, vol. 1. p. 247. (Riley's edit.) was relied on as in point to this purpose; also Heyward's Reports, 23. Besides, it was alleged, that in a thick woody country, such as this was when the survey was made, before the geography of it was properly known, it was no uncommon thing for surveyors to mistake the names of water-courses, and in the meanderings of creeks and branches, which run in all directions through the country, to suppose that some of them run into one river, which in fact ran into the other. It was therefore absolutely necessary to admit of parol testimony in many cases, to correct these mistakes; and unless this was done, in order to shew the true position or location of land, and to explain its real situation, it would be cutting off claimants to lands from one great source of information, essentially necessary to the ends of justice. The Judges, having considered this case fully, were of opinion, that if it was necessary to go again into the first ground made in this case, that it should be governed by the principles laid down in the case of M'Fadden and Wife v. Haley, ante, and in this case, upon a former motion to set aside a nonsuit, at the same term, ante, but as this point had been previously settled in those and one or two other cases, they did not think it now necessary to give any further opinion upon it. Upon the second ground, however, they had no doubt but a new trial should be granted, on the ground that parol testimony should have been admitted, to have explained any mistake in the location of the land mentioned in the grant under which the defendant claimed; and that such explanation was not repugnant to the statute of frauds, as had been contended for by the plaintiff. That our courts of justice had frequently permitted witnesses to be sworn, in order to rectify any mistake in the location of land, or even to explain deeds in cases of ambiguity or uncertainty, and the case of White and Egan, quoted in the argument, Middleton ads. Perry. Middleton ads. Perry 2 Bl. Rep. 1249. S Durnf. & East, 474. 2 Atk. 98, 99. 3 Atk. 389. was strong to that purpose. Where a grant called for a certain tract of land on the south, which was bounded on it to the north; in that case, witnesses were called to explain the mistake in the original grant, and to show the true situation and location of the land in dispute. And the authorities in the books are numerous on that head. Rule for new trial made absolute. All the Judges present. Columbia, 1804. In an action of debt on an administration bond, a party entitled to a distributive The ORDINARY of KERSHAW District against WILLIAN DEBT on an administration bond. Verdict for plaintiff. Motion for a new trial. In this case, there was a plea of performance generally. share of the To this plea there was a replication that the administrator deceased's es- had not made a just and true inventory of the deceased's recover more estate, as by law he was bound to do. To this replication than his pro tate, cannot portion of da- there was a rejoinder, that he had never been called upon, mages for any tor, in not re misconduct in or required to render in an account, till a day therein menan administra- tioned, (8th March, 1800,) and that he had then rendered in turning a true a just and true inventory; and plaintiff surrejoined, and defendant demurred to it, which demurrer was overruled; who is entitled whereupon the cause went to the jury, who gave the plain and just in ventory. to such share, is not a com- tiff (who was entitled to one-sixth of the deceased's estate) petentwitness to prove those his full distributive share, and the whole amount of the damages. value of that part of the estate which had not been included in the inventory, by way of damages; and to prove the value of such part of the estate as was not included in the inventory, the real plaintiff, who was a minor under the age of 21 years, and his guardian, were permitted to Ordinary of be sworn as witnesses. This, therefore, was a motion for a new trial, on two grounds. 1st.. Because the jury had given more than the plaintiff was entitled to, on any principle of law and justice; and, 2dly. That that verdict was obtained on improper testimony. The Judges, on both grounds, had no hesitation in ordering a new trial, as the plaintiff for whose account the suit had been commenced in the name of the Ordinary, on the administration bond, could not, by any possibility, be entitled to more than his one-sixth part of the amount of the deceased's estate, which had not been included in the inventory, in addition to his distributive share of the estate; and that the party entitled to such share, should not have been sworn to give evidence himself of the amount or value thereof. Rule for new trial made absolute. All the Judges present. Kershaw V. Bracey and ANDREW PICKINS & Co. against STEPHEN GArnett. CASE on a demurrer, from Edgefield district, which was sustained by the circuit court. Motion to reverse this decision. names of the surviving copartners only, arementioned in the writ, This was an action of assumpsit for goods sold and de- but the names livered, and the writ was for defendant to answer unto of the whole are set forth in the declaration, it is good, as the declaration is an enlargement of the original writ. It is sufficient for the court to give judgment on, which is all that the law requires. V. Garnett. Pickens & Co. Andrew Pickins and John Owen, surviving copartners of Andrew Pickins & Co. But in the declaration it was stated, that defendant was attached to answer unto Andrew Pickins and John Owen, who had survived John Lewis Gervais and John Rutledge, called and known by the name of Andrew Pickins & Co. To this declaration there was a plea in abatement, on account of a variance between the writ and the declaration, and for want of the proper names of persons in the original writ. To this plea there was a demurrer, which was overruled by the presiding Judge, (BAY,) and the plea in abatement sustained. This was a motion to set aside the decision of the circuit court at Edgefield on the demurrer, and to overrule the plea in abatement, and to permit the plaintiffs to go on and get their judgment on their writ and declaration. The court, after hearing arguments for and against the motion, thought proper to set aside the judgment of the circuit court on the demurrer, and to overrule the plea in abatement, as not sufficient in law to destroy the plaintiffs' right of action, in the manner and form as set forth in the pleadings. Inasmuch as the names of the two copartners in esse, are named in the writ as the survivors of the copartners of the late copartnership, and the whole of their names are mentioned and set forth in the declaration, which is an enlargement of the writ, with sufficient certainty; so that it might be pleaded in bar to any other suit, that ever might be commenced for the same cause of action against the defendant. The addition of Andrew Pickins & Co. in the writ, shews very clearly, that the suit was not commenced for the use and behoof of Andrew Pickins and John Owen only, but for the use and behoof of Andrew Pickins and John Owen, and others who had been connected with them in trade and commerce; and the declaration explains fully Garnett. and clearly who those others were, who originally formed Pickens & Co. the copartnership. So that in fact there is no variance between the writ and declaration, the latter only more fully and at large explains who the parties were to the contract originally, and who have survived to maintain the suit. It is laid down by the best expositors of the law, that the declaration is an explanation of the plaintiffs' writ, and shews more fully the foundation of the suit; and all that the law requires is, that it contain sufficient certainty for the court to give judgment on. Co. Litt. 17. a. 303. Plowd. 84. 4 Bac. Abr. 8. In 2 Stra. 1232. a bill of Middlesex was to answer to "the Weavers' Company," and the declaration was in the name of the company qui tam, for themselves as the poor of the parish; and this was held good. On the authority of this case in Strange, the same point was determined in the case of Lloyd v. Williams, 2 Bl. Rep. 722. the capias did not express that the party sued qui tam, though the declaration did. And this was likewise held good. 1 Wils. 392. Judgment on demurrer in the circuit court set aside. |