
    Blythe vs. Sutherland. Same vs. Keith.
    The declarations of a surveyor, dead at the time of the trial, who originally located the land, are admissible, on a question as to the location, 
    
    So, wheie the death of the surveyor was a matter of public notoriety, and the party inadvertently neglected to prove his death, and by direction of tho court a verdict was found against him for (hat reason, the court granted a new trial, that he might prove that fact; as it was an inadvertence, frtfffi which the most circuuispect are not exempt.
    Applications for new trials, are, with some limitations, always addressed ta the discretion of the court, which has often granted them, when verdicts have been obtained by surprise or inadvertence.
    The great object of courts is to ascertain the truth of the facts between parties litigant, and where it is apparent that truth has not been attained, and that without a fault in the party amounting to negligence, the court will give relief.
    Tried before Judge Gaillard, at Pendleton, Spring Terra, 1825.
    These were actions of trespass to try titles, and the only question was of location. The defendants offered the. testimony of Stephen Adams, taken in writing by consent of parties, who stated as follows:
    !t I was well acquainted with the lines of Watt’s tract a short time after they were run, and derived my information fro': Burnett Grafton, the original surveyor, who ran them, He shewed them to me four or five weeks after he made the survey. He shewed me a Poplar station on the north side of the Oslondy river on Rileys line, which he said was a station for both tracts, viz,-Watt’s and Riley’s. He then-shewed me a stake which he said was, the north western corner of Watt’s tract, and about two feet- from it, a hickory bush or small tree,'now a stump, which he said was the corner of Riley’s land. I have lived within a mile of this land ever since, and am well acquainted with it. The said Crafton further told me that the line, commencing at the fallen red oak, and running west, was made by him, and intended, at first, asa boundary, but when he came to the good flat land, Watt’s directed him to anull, and discontinue it, which he did. He then went to Riley’s corner and placed a stake as a corner for Watt’s tract, near the Hickory stump, aforesaid, and then ran a line so. as to intersect the widdow Criswell’s line below, 1 went with the surveyor Maj. Lewis, and pointed out to him. asnearas I could, where the stake corner stood near the stump .aforesaid,, and went with him on the N. E. line, I also shewed him the fallen red oak where the annulled line com-»-, menced, I have examined the plat made by Lewis and think it a correct representation of the lines I shewed him. I told the grantor, under whom the plaintiff claimed, the night after he made the survey, that he had run into Watts’ line.”
    His honor rejected this testimony on the ground that it Was not proved that the surveyor, Bennet Crafton, was dead.
    Verdict for the plaintiffs.
    The defendants counsel moved the appeal court for a new trial, on the ground that the testimony should have been admitted; and urged for a new trial, that it was a matter of such public notoriety, that the surveyor, Crafton, was dead, that it was altogether inadvertency, occasioned by the notoriety of the fact, which caused the counsel to neglect the proof.
    
      
       See,®!lc,lhe case of Spear vs. Coate 257-and note 230.
    
   Johnson, J.

There has been no controversy about the question whether the declarations of a deceased surveyor, who originally located the land, is or is not admissible on a question of location. All agree that they may. Nor is it questioned that to let it in, it was incumbent on the party offering it in the first place to prove his death. If the case rested solely on this state of facts, the court would not hesitate to let the verdict stand. But it is obvious from the circumstances which have been developed, on the argument here, that the death of Crafton, the surveyor, whose declarations were offered, was a matter of public notoriety many years ago,, and that the omission to prove it was an inadvertence from which the most circumspect are not exempt, or a confidence that formal proof of a fact so notorious would not be required, and furnish, in the opinion of the court, sufficient reasons f^r sending the case back.

Applications for new trials are, with some limitations, always addressed to the discretion of the court; and although it should be exercised with great caution and circumspection, yet our own decisions furnish many instances in which new trial? .hav« been granted, when a verdict has been obtained by stir prize or inadvertence. And the cases of verdicts manifestly against evidence furnish a wide field for the exercise of this power.

W. R. Davis, for the motion.,

Earle, Solicitor, .contra.

One of the most prominent objects in the institution and organization of courts of justice, was to ascertain the truth of facts between parties litigant; and where it is apparent, that this object has not been attained, and that without a fault in the party, amounting to negligence, it becomes; the duty of this court to give relief.

Motion granted.  