Underwood v. Evans

2 S.C.L. 437

• Court: Court of Appeals of South Carolina
• Decided: July 1, 1802
• Status: Published

Opinion

The court

refused the motion unanimously, being of opinion, that all rules of survey to be made under the direction of any of the circuit courts in this state, should be directed to sworn deputies under the surveyor-general; as no others were under oath to perform their duty faithfully, and no others could swear the chain carriers to do impartial justice to the parties, unless in cases where both parties agreed and fixed upon a surveyor themselves, in which case their agreement would be binding, and would form an exception to the general rule, as well with respect to the surveyor as to the chain carriers.

And with respect to making ex parte surveys, none such ought ever to be received or offered in evidence to a jury, Unless in cases where one of the parties was ready to go on' and make the survey with his regular surveyor, and had given the opposite party regular notice of such his intention, a reasonable time before such survey was to be made. Then, if the party so notified, refuses or neglects to attend with his surveyor, the party ready and desirous of making the survey, may go on and make his survey, which may be received in evidence upon the party’s proving the due and regular notice, and the neglect or refusal of the opposite party to attend.

Rule for setting aside the nonsuit discharged,, as it appeared to have been regularly ordered.

All the Judges present.