
    Newbern,
    July Term, 1805.
    
      Loften vs. Heath.
    Tp-JECTMENT:
   J?er curiam,

Taylor, Judge.

The plaintiff insists that the beginning of the defendant’s tract is at a cypress, and that the fourth corner is a pine upon the creek, and so along the creek to the begining; in which case the land in dispute is left in the plaintiff’s patent. The defendant insists that the pine is the beginning tree; that the original survey actually began there, and ended at the cypress j la which care the land, in dispute is within ;ho defendant’s patent. The creek.is not parallel to the- second line, as probably the surveyor supposed, but mp3 transversely ironu the cypress lathe pinv. The distance of two hundred poles from the pme, and then the course of the second line will intersect the line from the cypress, at a much, .greater, distance than two bundled poles from the cypre&s."—«-Running from the cypress 200, poles and there stopping, and from thence running the second line, will intersect the line from the pine, at a much less distance than 200 poles, it is in evidence from the hearsy of the chain earners, now dead, that the original survey began at the pine, and from thence to the second corner, and &o to the third, being the courses that She defendant contends for. It is also in prooí that the former courses oí the defendant’s tract called the cypress. the beginning oí the tract; and the patent says, beginning at a cypress, it is contended on the pari of the plaintiff, that as - he pate-jt ca’ls for a cypress as the beginning of the tract, the defendant cannot be allowed to depart from the words ot the patent, and say that the phis is the beginning, and not - the cypress* 1 will not, say whether It was wise or not in the first mstc-.ce, to depart from the words of a grant; but many decisions of our courts have allowed of such a,departure, in erdtr to fix the location where it realhj- was, made originally. fü‘ cited and stated tba case of Person a'ncl Roundtree, .which he said had been follow-, ed up by many other cases to the same effect. It must now be taken as the law of this country, that notwithstanding any mistake or wrong description either in the plait or patent, the.p&rty

who is likely to suffer !)y it, may by parol' testimony, shew the mistake, and prove the location of his land by testimony dehors the patent; and upon making clear proof thereof, shall hold the lane], actually laid off for him. Consequently if the,jury are well con-, vinced that the original survey began at thr fiine,, they ought to, find for the defendant».

Verdict for the defendant,,  