The evidence offered v/as inadmissible. Éule for a new trial discharged.
Den on the several demises of Osborn v. Coward, 6 N.C. 77, 2 Mur. 77 (1811)
July 1811
·
Supreme Court of North Carolina
6 N.C. 77, 2 Mur. 77
Den on the several demises of John C. Osborn and John Stanly v. John Coward.
}>Frotn Craven,
Question of evidence. In ejectment the Plaintiff claimed title under a grant issued in 1101, for 640 acres. The beginning corner called for in the grant was, “ a poplar on Trent river, thence 330 poles to a pine,” &c. On the trial, he contended his beginning corner was 400 poles from the poplar, and the second corner 400 poles from the pine ; and to prove it, he offered to 1-y before the Jury the re-* cord of a petition filed by one of the old proprietors of the land before the Governor in Council, praying for a re-survey, the order in Council for a re-survey, directed to the Survej or-Scneral, and the re-survev made in pursuance thereof in 1168. HIcM, that the record of this petition and re-survey is not admissible in evidence.
The lessors of the Plaintiff claimed the lands in question under a grant i.-sued to Frederick Jones, in the year 1707, in which the boundaries are described as follows, to wit: “ Leg-inning at a poplar on Trent river, running thence west 320 poles to a pine, thence north 320 poles to a pine, thence east 320 poles to the river at a Spanish oak, and with the rher to the beginning, containing G40 acres.” They contended that the beginning cornel' stood at the distance of 400 poles from the poplar, and the second corner 400 poles from the pine. To support this pretension, they prayed for leave to give in evidence the record of a petition of Edward Frank, a former proprietor of the land, to the (íovernor and Council, in the year 1769, praying for an oi her of resurvey, and also the re-survey authorised and made pursuant thereto, in the words and figures foilowiug, viz :
*78“ At a Council held at Wilmington, on the 28th April, 1769 — present his Excellency the Governor in Council. Read the petition of Edward Franks, setting forth that his lather, Martin Franks, in his lifetime, purchased from Frederick Jones a certain tract of land granted by patent to the said Jones, in the year 1707, for 640 acres, in Craven county, on the north side of Trent river, called the White Rock ; the courses and distances of which patent will not extend as far as the natural boun4s and marked lines of the original survey. Whereupon the petitioner prayed an order to re-survey the same agreeably to the known bounds and marked lines; that if there should be found a sur-plusage, the said petitioner might have the preference to secure the same in such a manner as his Excellency in Council shall hereafter direct. — Ordered a warrant of re-survey to issue, according to the prayer of the petition.
A true copy,
JNO. LONDON, D. Sec’y.
To the Surveyor-General.”
Hickory. Pine.
*
“ The above Plan represents a tract of land patented by Frederick Jones, in the year 1707', for 640 acres, in Craven county, called the White Rock, surveyed by virtue of a warrant of re-survey, issued at Wilmington the 28th April, 1768. f
L. LANE, D. Surv’r.
Re-surveyed this 24th November, 1768.”
*79The presiding Judge refused to receive the evidence offered; whereupon the Plaintiff suffered a nonsuit; and it was referred to this Court to decide, W hether the said petition and re-survey were admissible in evidence ?