Foreman v. Sandefur

3 S.C.L. 474

• Court: Supreme Court of South Carolina
• Decided: April 15, 1805
• Status: Published

Opinion

The court,

(Gtumke, Waties, Brevard, and Wilds)

25th April, 1805, were of opinion, 1st. That the evidence as to the iden» ¡tity of the lines and marked trees, was properly left to the jury :■ ¡and that the opinion expressed by the judge, as to the sufficiency of that evidence, was not improper; for that nothing is more common, and more reasonable, because it is very often necessary, than to admit parol evidence of this sort, to ascertain the lands described in original, or other grants : and the marks set forth in the plat and grant, as the corners and stations, designating the boundaries of the land, must be regarded as much evidence arising from the face of the grant, as the description of courses and distances; and are more to be relied on, where they can be found and identified, because not subject to variation. 5Jd. That the second writ sued out and quashed, should not be considered as a second action let fall by the plaintiff, which being after the former nonsuit, and taken together with it, is sufficient, according to the act of assembly of1744, to bar the plaintiff from a right to commence another action : for that the said writ so quashed for irregularity, ought to be regarded as void from the beginning, and incapable of supporting any action. And the majority of the court seemed to be of opinion, that the objection to lie valid, in any case, must be taken by plea in bar: and so I think clearly, in order to give the plaintiff an opportunity to meet the ¿question fairly.

Motion refused.