
    The Bank of the State of South Carolina vs. Simpson Bobo.
    
      Neto Trial — Trespass to try title — Location.
    In trespass to try title, where the Court of Appeals decides the question of location and sends the case hack for a new trial, it will upon the same evidence continue to send it hack until a verdict is rendered in conformity with the decision of the Court.
    BEFORE WHITNER, J., AT SPARTANBURG, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    ■ “ This was an action of trespass to try title, being a second trial of a case already heard in the Court of Appeals, December term, 1858.
    “The case turned on the same points previously made, on very much the same evidence, and resulted as formerly in a verdict for the defendant, contrary to a very decided opinion entertained and expressed by the Circuit Judge, fortified by the unanimous opinion of the Judges composing the Appeal Court.
    “ I shall submit herewith a statement of the evidence, for the purpose of reference, and request that appellant will have before the Appeal Court the Plats used in evidence on circuit, to wit: the original Plat attached to the Markley Grant: the Resurvey of Smith, certified in 1802; the Plat of Gibbes & Harris, used on a former trial of same plaintiff vs. South Carolina Manufacturing Company; and a Plat of Resurvey, prepared by John Epton under a rule of Court.
    “The outline of the case, presented in the former report, may be referred to again, and will dispense with the necessity of any summary on the present occasion. The only question now, as before, was, whether there was sufficient evidence to locate the Markley Grant. I felt constrained, under the circumstances, to admit the record of this plaintiff vs. South Carolina Manufacturing Company, though I confess against my own judgment, as to its competency. It was, however, confined to the use made at the former trial. Consistency seemed to require in turn the record of same plaintiff vs. Stephen Bridges, and for a like purpose, tried at a ’subsequent term of the Court at Spartanburg.
    
      “ These cases have all found their way into the Court of Appeals, and it is unnecessary that I shall report any thing more respecting them, to render intelligible the ground of appeal, as to the admission of this record.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the grant under which the plaintiff claims was located consistently with the best evidences of location, and should have beén established.
    2. Because, it is respectfully submitted, his Honor erred in permitting the record in the case of the Bank of the State of South Carolina vs. Stephen Bridges, to be offered in evidence in the trial of the above-stated case.
    8. Because the verdict of the jury was against law and-evidence, and should be set aside.
    
      Dawkins, for appellant,
    cited on first ground: The Bank of the State of South Carolina vs. Bobo, 11 Eich. 597; authorities therein cited. On second ground: The Bank of the State of South Carolina vs. Bridges, 11 Eich. 87.
    
      Bobo, Thompson, contra.
   The opinion of the Court was delivered by

O’Neall, O. J.

In this case, a new trial must be ordered, and will be on the same case, until the jury find it to be their duty to conform to the decision of the Court.

The case, when decided by the Appeal Court, 11 Eich. 597, was placed upon the ground that the Markley Grant was located covering the land in dispute. The same facts were again before the jury, and the same conclusion ought to have followed.

It is only necessary to add that the survey of Mr. Smith, an accurate surveyor, in 1802, (14 years after the grant,) is located on the land without doubt. That is a memorial of title which of itself establishes the location, and nothing further was necessary to establish the true location.

The motion for a new trial is granted.

Wabdlaw, J. concurred.

Johnstone, J. I concur in the result.

Motion granted.  