
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Foreman v. Sandefur.
    Parol evidence was admitted to identify the land described in an original grant, which was produced on the trial of an notion to try titles, and to establish the artificial and other marks referred to in the original plat of the land.
    A nonsuit had been suffered by the plaintiff, and afterwards he brought another action for the same cause, and thereupon the writ was quashed-for irregularity: — It was held, that the quashing of the writ could not be coupled with the former nonsuit, so as to prevent the plaintiff from bringing another action.
    Motion for a new trial. Trespass to try titles to land, tried-before Bay. J. in York district. It appeared in evidence on the trial, that the land in dispute had been originally surveyed by the deputy surveyor, who was employed by the plaintiff to make the survey under the rule of court in this cause ; and he testified, that in the original survey a mistake was made, by putting down in the plat, north, tor south &c., he having: mistaken one end of the mag. netic needle for the oilier ; and that before the dispute arose between the parties in this action, he discovered the mistake ; and that by reversing the courses marked on the original plat, .all the marks described in the plat were found. This evidence was corroborated by the testimony of other witnesses r which evidence was const, dered by Bay, J, in his charge to the jury, as sufficient to identify and prove the 1 claimed by the plaintiff. On the part of the defendant, was given in evidence the record of an action, brought by the same plaintiff against u'-e same defendant,for the same land, and judgment of nonsuit entered up against the plaintiff in the said action; and also produced evidence of record, to shew that another action was commenced by the said plaintiff, against the said defendant, to recover possession of the same land, some time after the nonsuit suffered as aforesaid. And that the writ sued out by the plaintiff in the second action, was, upon motion, quashed for some irregularity : and it was thereupon insisted for the defendant, that by force of the A A. 174-4, P. L. 191, which declares, that where a plaintiff shall be nonsuit, or shall discontinue, or shall have verdict and judgment against him, or shall otherwise let fall his suit, a necond time, he shall not be infilled to bring anoriier ac. tion of ejectment — the plaimitf in this action was precluded frojQ Maintaining the present action. But Bay, J. overruled this objection, on the ground, that the writ which w-ts quashed, was not such a letting fall the action, by the plaintiff, as the act of assembly intends.
    W. Smith, in support of the motion for a new trial,
    argued, thai the evidence given at the,trial, to prove courses and di tunees the reverse of those marked and deseiibe.d in the plat and grant of the land produced by the plaintiff, ought not to have been admitted, or Buffered to go to the jury, as it was in effect allowing evidence to go to the jury to contradict, and substantially vary the grant. Cited the case of Mounce v. Ingram, in this court. Gilb. Law of Ev. Hayw. 126, 135.
    That the plaintiff, after one nonsuit, and having his second writ quashed, was not legally intitled to bring a third action ; which is forbidden by the act of assembly, and that one nonsuit, and one discontinuance, &c, is equal to two concurrent verdicts, or two nonsims, &c.
    Nott, on the other side.
    Written evidence should not be impugned by parol. Records cannot be contradicted, or rendered invalid, by evidence ot an inferior nature. But it is the constant practícelo ascertain the identity of lines described in a grant, byparol evidence. This is done to explain the grant, uot to avoid, or contradict it. The artificial and natural mark-.' described in the gram, are as much evidence of the land, as the courses and distances; they are better evidence where they cat. be identified ; and wherever they can be identified, they have always been allowed to Control the courses and distances. Hayw. 76, 377. Bay, 245. Sumier v. Braeey, in this court.
    As to the objection, that this is a third action of ejectment, and cannot be allowed, this does not appear. It is not manifest by the records alluded to, that the two former actions were for the same land. Besides, the objection ought to have been taken by way of plea, and cannot be noticed after issue joined and verdict. Moreover, the act ought to be construed favorably for the benefit of plaintiffs, as it is to i.ike away a common law r>ght ; therefore, the terms of the act ought not to be so construed. 3s to make one non-suit, and one discontinuance, &c. operate the same inconvenience to the plaintiffs, as two,concurrent verdicts, or two nonsuits : at any rate, an erroneous process sued out, and quashed for a defect which made it void, ah irdtio, ought not to be considered in the light of an action voluntarily Ze„ fall by the plaintiff.
   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.  