
    Ringgold vs. Galloway, et ux. Lessee.
    Ayí’eai. from Washington County Court. Ejectment for Chew's Farm. The defendant, (now appellant,) teak defence on warrant, and .plots were made. t ,
    1. At the trial the plaintiff read in evidence a certificate of the survey of Chew's Farm, dated the 10th of April 1734, and the patent thereon issued to Samuel Chew the 23d of June 1736, for said land, described as “all that tract or parcel of land called Chew's Farm, lying in the aforesaid county, (Prince-George's,) on that part of Fotomack river commonly called Connegocheig land, a{id beginning at the end of the fourteenth line of his Lordship’s manor, called Connegocheig Manor, and running thence,” &c. “containing 5000 acres of land more pr less, to be held ; of Cormegochcige Mftnor." And also the certificate of, resurvey of Conococheague Manor, dated 25th of October 1 1736, viz. “Maryland, set. In obedience to an order from i his Excellency Samvel Ogle, Esquire, Governor of Mary- : land, to resurvey for his Lordship, the Right Honourable i the Lo)-d Proprietary ot Maryland, his said Lordship’s j manor of land lying in Prime-George's county, called j Connegocheig Manor. These are therefore humbly to certi-j fy, that I have carefully resurveyed the above said tract or j manor of land, according tp its first intended bounds, and \ beginning at a bounded,” &c. “containing 10,594 acres j of land.” And proved by competent witnesses that Sarnie-’ d Chew, the patentee of Chew's Farm, died seized of said \ land, leaving Samuel Chew, his eldest son and heir at law, ¿ who on the death of his father entered and was seized «j thereof. That Samuel Chew, the son, had issue three» daughters, Henrietta Mftriam, married to Benjamin Gal-\ 5 ) ; j , , , ' i • 
      loway in the year 1775, and Ann, since dead, and Eliza* both Crowley, married to Peregrine Fiizhvgh: and that Samuel Chew, the son, so being seized of Clino’s Farm, conveyed to liis daughter Eenriel/a Mariam Galloway, by deed dated the 10th of December 1782, an undivided third part of an undivided moiety of the said land. This daughter, and Benjamin Galloway jier husband, are the lessors of the plaintiff. He further read in evidence the will of Samuel Chew last mentioned, dated the g4th of November 1785, containing, amongst others, the following de^ vises: “I give and bequeath to my daughter Ann Chew, all my lands in Washington county, being one third part pf a moiety of a tract of land called Chao’s Farm, containing by patent 5000 acres, (the said third being known as number two in the plot or division which lately toojc place by agreement, the other two thirds having been before given by me by deed to my daughters Henrietta and Elizabeth, which deeds T hereby ratify and confirm,) together with all'my interest, which is one third part of the jnpiety of those parcels pf land which may have been added by resurvey or otherwise, to said trapt of land called Chew’s Farm, to her my said daughter Ann Chew, and her heirs, for ever, in fee'simple. But if my said daughter Ann Chew shall die before she arrives at the age of sixteen years, or shall not. marry, then in either of those cases I bequeath and give the real estate devised in this will to my said daughter-inn, to be equally divided betwixt my two daughters fJenrietta and Elizabeth, to them and (heir heirs, for ever, in fee simple; or if my said daughter Ann shall die withopt issue, and not dispose of the said estate by' deed, will, or otherwise, in such case I give and bequeath it as before to my two daughters, and their heirs, ip fee simple, to be equally divided betwixt them.” The plaintiff then gave in evidence the plots and locations in the cause; and that all his locations thereon were true. He thep read in evidence the deposition of John Killy, Esquire, Register of the Lapd Office for the Western Shore, taken by consent, and admitted tq be read in evidence, to prove that the original certificate of survey of Conocopheague Manor, referred to in (he certificate and patent of Chew’.s Farm, and in fbe resurvey on the said manor in Qctpbpr ?736, was nof recorded in the records of (he land office, nor to be found among the papers or in the records of that, office; and he then offered to prove, by competent witnesses, that an original survey of Conococheague Manor was made prior to, or eotemporaneous with, th,e survey of Chew's Farm, and that the pud of the J4th line of said original survey of the manor and beginning of Chew's farm, wap actually made in the country, when taken up, at-the point or place on the plots described by letter black A, according to the plaintiff’s location thereof. TJie defendant objected to the admission of any parol evidence for that purpose. But the Court, ['Buchanan, Ch. J. and Shriver, A. J.] were of opinion that tjre plaintiff might offer parol evidence to prove that a survey of Conococheague Manor was originally made prior to, or cotetpporaneousiy with, the survey and certificate of Chew's Farm. The defendant excepted.
    
      ; 1 i : i j j j \ j Where the cpr« 5 tif^caie of"survey Iof a tract of laud called C i', made in 2736, stated that ) tract to begin at the eiidofthe^4tii ; line'of C- Itfanor? and it was proved j that the original 'certificate of sur» , vey of C Manon was not recorded , in the records oí the land office^ , nor to be found a* ' rnong th(e papers i of that office, parol evidence was admitted to prove that a survey of • C Mnno/mí&s on® giimlly made prior to, or eotemppra® neous with, the survey of C anti it was heldy tha$ where the 14 ih line of the survey of 0 Mav,or termi>lia^es, ' Rccouiing. to ns tute loca» tion, is the piase wju re C fbe-gipsi and whatever is competent and legal evidence to, prove the beginning of C F, is legal and coippetent to prove the termination of the 24th line of C Mcmitri and so vice, versa.
    
      \ ¿ «j In the absence of proof as to the beginning tree and courses of C Manor, (the begin® mug tree being destroyed or incapable of proof, and the courses lust,) the legal foundation being' laid, the next best ov secondary evi* donee may fce resorte;! to, thet is, parol evidence of the beginning of € F* calling to begin at the I4tij jline of C Manor, and hy morswig tin* lints it on; that point to Une place oí beginning oí C Manor, ■Where a sut\ey lias a treqal the beginning, am! ail the lines are course and distance, and the tree cannot be proved, the sm ley may be preserve d by ihe reference oí a junior survey to the end of some of the lines,if-ihe place of uierenec can be pioved.
    The ret inn to a commission ior establishing the boundaries of land, issuejJ in 1784, being defective, ns appeals ‘ by the recove] thereof, n no\ appearing that legal notice had been given, the plaintiff in ejectment cfteied in evidence, that the o.igmai commission'a»d testimony, reduce^ to «riling by the commissioners, and their ittuns, «ere dmy returned and reco'idcdjand in the margin of the recoid thereof mmki d "Fauni d & Ueliod. F 1);’’ that F J) aitemlúl to the execution of the commission for* -Jje persons ‘ v/ho obtained it, tbev > ending, and having continued to reside move than 100 ipiles off, •sínd Unit they and R D, ysere all dead; that the ougii.ai commission, kcc. v/eie not to'be found, altho8 dnigent st areji had bt en made amongst the papers of R 1). ‘ He then off. red to prove by two of the ciummssioneis, that the p*T-ons ¿fc-mimd by them witnesses \vc re dead; and Thbn offered to prove yhat fetich persons deetaicd, wheii examined in their presence and hearing, ami thaiautlj declaration* '«ere reduced to writing,and retu.md by haul eommissionm us tin depositions ot saiif«itnesscs — HpW by t.V .ci unfy court, (hat the loss at' the commission, &c. «as xwi sufficient})-proved toiet in parol evuiince of the coiiíahia of the depositions ttihen oi’d réumico by he c< nuwiwioners
    Á paper purporting to be tin-iie.d notes'or courses of tin; sunej w a puicei of lantj called C C proyi d to he in tin handwriting of J T, who vn-> accustomed to survey hinds in the early part oí the last CMiuirv, and who oiigmah} surveyed C Manor ^ «as offered as evuVríoe oí its ancient £uimspgj« Unid hv the e.mihty »uch paper could 2K4 he used in evidence for said purpose.
    
      2. The plaintiff then offered to read in evidence the record of a commission issued from FFashingion county copri, on lire 1st of January 1784, at the instance of Samuel mi Be,met Chew, for establishing the boundaries of Chew's Farm, and the execution thereof in April 1784, and the testimony of She witnesses therein contained, and reduced to writing by the commissioners, but not signed by the witnesses. This evidence being objected to by the defendant, the court did not perpiit it to be read, it notappearing that legal notice had been given. The plaintiff then offered in evidence, that the original commission and testimony, reduced to yyriting by the commissioners, and their return, were returned with t|ic commission to the clerk’s office of Washington county, and were duly recorded. And offered also to prove, by the present cleik of the said court, that the said original commission, return thereof, and testimony reduced to writing, are not now tobe found in his office. And also offered in evidence the following entry in the margit! of the records of his office, where the said commission and proceedings were recorded, to wit: “Examined and delivered, Richard Davis:" and that such marginal entry was the usual and general practice to denote to whom the originals were delivered. And further proved, that Serpnuel Chew and fennel Chew, the persons at whose instance [he said commission issued, lived, at tko time of issuing and executing the same, on the J^asttm shore of this state, more than 100 miles from Washington county, and were not present at the execution thereof; and fbat Samvel and fennel Chew both died on the R!a stern shore, the first in 1786, and the last in 1793; that they were both old men, and that; neither of them ever was in Washington county from the day of issuing said commission, until their respective deaths. And further swore and offered a witness to prove, that Richard Davis, to whom the original commission and return, and-execution thereof, i§ entered on the record aforesaid to have been delivered, attended to the execution of said commission for said S. & B. Chew, and that he died in the year 1788. And also proved by Samvel Hughes, jufl. witness sworn for that purpose, and counsel in the cpsc, that he applied to Col. Rezin Davis, in his life-time, who was the executor of the said Richard Davis, deceased, to search among the papers of his deceased father, for said commission, and return, who informed the said Hughey that he had carefully searched among his father’s papers for the same, but it was not to be found; and th$t the said Rezin Davis was summoned for the plaintiff in th|s cause, to give evidence of that fact, but that he is since dead; and that since the death of the said Rezin Dfivis, the said Hughes applied to Mrs. JRlcanor Davis, his. exe-, cufrix, for permission to search among his papers for said commission and return, who produced tp }mn those bundles and bpgs of papers which she understood contained the papers of Richard Jpavis, deceased, where the said commission and return might be supposed to be, but after much diligent search (he same was not tpbe found. The plaintiff further offered *n evidence to the court, that more than twenty-six years have elapsed .since the said original papers were recorded, and twenty years since the death of Davis, to whom they were delivered; and offered to prove to. the court, by one of the commissioners who was sworn at A, that if the original commission and depositions were here, the matter contained in them would tend to establish the plaintiff’s locations at A, and his pretensions. And having thus shown that he was interested to produce said paper, and having as above accounted for the noup.rodgctiop of it, the plaintiff produced and swore Rlic H illiums and Raul Hoye, the two commissioners^ bametl in 9aid commission, and offered by them to prove to the jury, that the persons examined by them as witnesses were dead. And further offered to prove by them, as the declarations of persons now dead, what they declared at that time in their presence and hearing, and which was by them reduced to writing, and returned by them as their depositions in the commission, as to the end of the fourteenth line of the original survey of Conococheague. Manor. ending at the point A on the plots, and Chew's Farm, be? ginning at the same place: To this evidence the' defendant objected. And thé court were of opinion, and so decided, that the loss of the said commission, depositions and return, were not sufficiently proved to let in parol evidence of the contents of the depositions taken and returned by the commissioners, and refused to let such evidence go to the jury. The plaintiff excepted.
    3. The plaintiff then, by a competent witness, gave evidence, that a certain John Flint, an old man, and many years since dead, was accustomed to survey- and run lands in the early part of the last century. That an old roan named Fan Swearingen, was born before the year 1690, and lived on land then vacant, but since forming part of and included in Conococheague Manor, at the time said manor was originally surveyed; that said Van Swearingen died about fifteen years ago, at the age of 109 years, and from before and at the time of the. original survey of said manor, until his death, he had resided on said land and manor. And gave in evidence the declarations of said Van Swearingen, often made, that an old man of the name of John Flint made the original survey of Conococheague Manor; that the said Flint, while he Was employed in making the survey of said manor, frequented and staid at tha house of the said Van Swearingen, and made it his home. And further gave in evidence, by a competent witness, the declaration of Joseph Chapline, deceased, who died about forty years ago, and was sixty years old when he died, that he Chapline said he was employed by John Flint as a chain-carrier, and that he acted as chain-carrier on the original survey of Conococheague Manor, and that the same was made by John Flint as surveyor, and that the money he got as chain-carrier on that survey enabled him to take up the first hundred acres of laud he took up. And further read in evidence the deposition óf Archibald Orme, a'ged 73 years and upwards, taken by consent,' who proved that he' knew John Flint in 1752 and 1753, Snd was taught surveying by him, and that the said Flint was at that time an' old infirm man; that he was an old surveyor, and had been many years employed in running and surveying lands; and that it was generally known ánd understood that said Flint had been milch accustomed to run and survey lands in that part of Prince- George’s county, now called Frederick and Washington counties; that the said Flint was much employed by wealthy people in old times, and originally run and took up Carroll’s manor on Monocacy, amt Diilany’s lands in Frederick, as the deponent generally understood; that it was the general usage and practice, from 40 to 50 yéa'fs ago, for parsons having warrants, to get persons who could survey, to’ run their lands, and the' deputy surveyors of the counties would from the courses so run, make out. certificates, and send thérn to the land office, and have them examined, for patents to issue; and the plaintiff read said deposition'; further to' prove the hand-writing of said John Flint, and thereby proved that the paper annexed is the proper hand-writing of the said John Flint, which paper is as follows, viz: “Conegosheigoe Creek. Beginning at a bounded blake wall-nut standing near the mouth of the sd. creek, and the bank of the River Polawmake, viz. on ye S E side of ye sd. creek, then for the given line East 200 pr. arid continue* for 2 or 3 mile, thence from ye sd. bounded tree, down said river Fs 25 d. E lit) pr.” &c. “‘then up the sd. East: side of the side mash, North 27 cl. E for 4 mile, or more, according as want to include the improvements, then for the complement to the end of ye East line.”’ This paper was located by the' plaintiff on the plots. The' plaintiff further'offered evidence', that the lessors'of the plaintiff had for many years held and claimed Chew’s Farm up to the line from A, with the parts marked on the plots, Nos. 1 and 2. And he then produced and offered to read said paper to the jury, as the field notes or memoranda in the hand-writing of said' John Flint, who originally run Cono cochea, gue Manor as above’ stated, as evidence of its ancient running, and that the fourteenth line' of said original manor ended- at or about the letter A on-the plots, where he the plaintiff had located- the same* Tile defendant objected to the said paper being offered in evidence for the purpose aforesaid. And the court sustained the objection. The plaintiff excepted.
    4. The plaintiff then swore witnesses to prove, that a certain Fan Swearingen, about twenty years ago, died in Washington county at the age of 109 years, and that th© said Van Swearingen had lived far sixty years preceding his death on the land now contained within the Sines of Conococheague Manor, but vacant land when he first lived there; and proved by Charles Swearingen, son of said Van Swearingen, of the age of seventy-seven years, that he was born there, and has lived all his life at the same place, and he lias often heard his father say, that one John Flint, an old man, accustomed to run and survey lands, first run and surveyed Conococheague Manor and Chew':: Farm; and that while said Flint was engaged in running said manor, he frequented the house of said Van Swearingen, and made it his home; and that his deceased father said he was often.with Flint whilst he was resurveying said manor. And further, that his father, more than fifty years ago, when riding by the place A on the plot, slapping his son, the witness, on the back, and putting his hand on the locust tree at the point A, told him said tree was the beginning of Chew's Farm; that he the father was told so by the aforesaid Flint, at the time of the aforesaid running, and he has often heard his said father say so, but the witness never heard his father say that he heard this from any other person than the said Flint, and never from said Flint except at the lima aforesaid; that he has often heard his father say, and has always understood, that one line divided Chew's Farm from the manor. And further, about 40 years ago his father cut down the tree at the point C on the plot, and often told his son that the said tree was on the line of division between Chew's Farm and the manor, and the witness has heard the same from other elderly persons, but who he does not recollect; and he always understood, and has heard, that the stone now planted at C, where the tree was cut down, was planted by Mr. Sing gold’s father. That the tree, denoted by red A oa the plot, was marked by some persons who appeared to be surveying, about fifty years ago, who run near where the witness was working, but who they were, or what land they were running, the' witness does not know, hor under whai authority they acted; they said it was a line tree of my Lord’s banor. The plaintiff further offered evidence, that tlife possessions marked on the plot No. 1 and No; 2, were those of the lessors of the plaintiff, claiming Chew's Famfo inore than 25 years ago, and that about twelve years ago they were, by the order of the lessors; excluded as not lying in their lines; ánd one year afterwards were inclosed by the proprietors of Conococheague Manor as part of the samé; and had ever since been held by them as such. And ■■ that a certain Joseph ChapKne died about forty years ago, being tiled of the age of sixty years, and that said Chaplins in his life-time declared that he was a chain-carrier to old Flint] when the said Flint was running the original manor of Conococheague, and that as chain- carrier he was paid for the same. And produced and read in evidence the deposition df Ormc-, so far as the same contained legal and com - petent testimony, to prove the usage and custom in talcing and making up old surveys, and the character and habits of the said Flint. The defendant then offered in evidence the plots and explanations, and gave evidence that the locations on his part were true. He then read in evidence the original certificate of Butcher's Fancy, mads for James Butcher, the 25th' of August 1763, “by virtue of an order from his excellency Horatio Sharpe, esq. Governor of Maryland, and the honourable Edwaid Lloyd, his Lordship’s agent of the Province, to lay out for the several persons that shall from time to time apply for any quantity or quantities of land within his Lordship’s manor, lying in Frederick county, called Conococheague Manor,'* &c. containing 100 acres. And also a lease from the agent of the Proprietary to James Butcher, for the above land, dated 25th of August 1763, for 20 years. He further offered in evidence, that, shortly after the said lease was made, the said James Butcher, under and by virtue of said lease, entered on and possessed the land therein mentioned, as the same is located on the plots, and that the said land had been ever since held and possessed as a part of Conococheague Manor, and had been actually and constantly enclosed by fence, for more than 30 years, as a part of Conococheague Manor. That the part marked No. 7, with red letters and figures, near A, had been held by actual and constant enclosure, by fence and culture, for more than 40 years, as a part of Conoeockeagite Manor. T!nJ defendant then read in evidence the original certificate pf •survey of Level Plain, made the 26th of August 1763, in pursuance of an order of the governor and agent, opt ot the said manor, containing 200 acres. Also a lease to George Ross for the same land, for 21 years, and the patent for the said land to Thomas Ringgold, who had purchased the s,ame from the Proprietary agents, dated the £6th of May 1774. Ite further offered in evidence, the original lease of Addition to Level Plains, dated thg_29th of September 1765, to George lions, and the patent for the same, dated the 26th of May 1774, to Thomas Ringgold.» for 170 acres, also a part of the said manor. That the enclosure marked No. 6 on the plots, and included by the red and scratched lines described by red letters, &c. had been held, enclosed and cultivated, as a part of Conoco.zheague Manor, for more than 40 years. The plaintiff then prayed the court to direct the jury, that the certificate of the resurvey on Conocoeheague Manor, in October 1736, and the certificate of Chew's Farm in 1734» and the patent thereof in 1756, heretofore mentioned, were evidence that a legal survey of Conocoeheague Manor was made prior to, or cotemporaneous with, the original survey of Chew's Farm, and that the deposition of John Kilty was evidence that such certificate of the said manor was not or* record, nor the original papers to be found, and that the plaintiff' cannot procure a copy thereof from the said records, and that if the jury believed^ from the evidence aforesaid, that Chew's Farm did begin at A, as the plaintiff had located it, that then it was evidence, that the fourteenth line of the original manor called for, e^ded at the same place. Upon this prayer the court gave the fallowing opinion: The certificate of resurvey on Conococheagut Manor in October 1736, and the certificate of Chew's Farm in 1734, and the patent thereof in 1736, arc. evidence to the jury that a survey of Conocoeheague Mqnor was made prior to, or cotemporaneously vvith, the original survey of Chew's Farm in 1734, and the deposition of John Kilty ia evidence that no certificate of Canococheague. Manor% prior to that of October 1738, is on record in the land office; that ¡he original papers are not to be found ia that office; and that the. plaintiff' cannot procure a copy thereof from the said records. And il' proof that Chew's 
      
      Farm did originally begin at A, as the plaintiff has located ■ it, it is not evidence that the 14th line of Cono cochea gue * Manor, as originally surveyed, ended' at the same place, yet on the loss of1 the certificate and courses of that survey of the manor, if the original termination of the 14th line cannot be proved or found, proof of the original survey and location of Chew’s Farm, from the place marked A on the plots, is evidence from which the jury may find ■ that point to be the beginning of Gheio’s Farm.
    
    
      ‘ If any line of a tract of land is described in the granito run a certain course and distance to a fixed boundary, if that, boundary can be found, the line must be run to it, although in doing so, Ihe course and distance may be varied., Rut. if the boundary called for cannot be found, or the place where it stood ascertained, the course and distance expressed in the patent, (with such allowance for the variar tion of the compass as a jury, under the circumstances of the case, may make,) must regulate the location of the line. So if a line of one tract of land calls, to run a certain course and distance to the beginning, or any other part of another tract, that beginning, &c. must be run to, if it can be found, regardless of the course and distance; but if there; is no such land as the tract called for, or the beginning, &c. is lost, so that the call cannot be gratified, the description by course and distance roust be obeyed. But in every such case the course and distance must yield to the call if it can, be gratified, and can only be resorted to as the next best evidence of the true location of the land, when the place or thing called for cannot be found; ®nd so in this case, which indeed is not that of a line expressed to run a certain course and distance to a fixed boundary, in which the course and distance roust govern, if the boundary is lost, but it is the case of one tract of land calling to, begin at the end of a certain line of another tract, the termination of which line, if it can be found, must regulate the beginning of the defendant’s land, and no proof of any other beginning can be admitted to contradict the. record; but if it cannot be found, other evidence may be resorted to, and the beginning, being a point without course or distance to direct or control, it, on the loss of the place called for, pat'ol prop? of the place from which ii was run when originally surveyed, may be received, being the bes,t evidence of the beginning which the nature of the case will admit of, and not in contradiction of the record.
    As to the weight of evidence in this case we are not to 'be understood as giving any opinion. But where the 14th line of the manor, as originally surveyed ended, and where Chew’s Farm, as surveyed in 1T34 began, are questions to be decided by the jury upon the whole of the evidence before them. The defendant excepted.
    5. The defendant then prayed the opinion of the court to the jury, that the jury cannot find that Chew’s Farm began at the letter A, unless they find that there was a survey of the manor made antecedently to, or cotemporapeously with, Chew’s Farm, the fourteenth line of which ended at the letter A, and that the evidence aforesaid, offered by the plaintiff, was not sufficient to authorise the jury to find that there was any such survey of the Conocodieague Manor so made, the fourteenth line of which ended at A, or that the said tract called Chew’s Farm did begin there. Tills opinion the court refused to give, and referred to their opinion contained in the next preceding bill of exceptions. The defendant excepted; and the verdict and judgment being against him, he appealed to this’ court.
    The-cause was argued on the first, foiirtb, and fifth bills of exceptions, before Chase, Ch. J. and Nicholson, ISahle, and Johnson, J. by
    
      Martille for the Appellant;
    and by
    
      Key and Shaaff, for the Appellee,
   Chase, C|i. J.

delivered the court’s opinion. It is conceded in this case that the original survey of Conococheague Manor was prior to, or cotemporaneoua with, Chew’s Farm, and the decision of the court beJow in thar respect is satisfactory and acquiesced in.

It is certain, beyond a doubt, that the place where the 14th line of the survey of Conococheegue Manor terminates, according to its true location, is the identical place whole Chew’s Farm begins, and whatever is competent and legal evidence to prove the beginning of Chew’s Farm, is legal and competent evidence to prove the termination of the 34th line of the manor, and so, vice versa. If the. beginning £req and the courses of the manor could be proved, the. location of the manor from that tree tq t|ie end of the 14th line, is the (rue location, and would be conclusive evidence of the beginning of Chau'-s Farm, at the termination of the said 14th line. In the ubsence of such proof, the tree, the beginning of the manor, being destroyed or incapable pf proof, and the courses lost, the legal foundation being laid, (which has, been done by the deposition oí John Filly, the late register of the land office,) the next best or secondary evidence may be resorted to, and is legally admissible; that is, proof by parol evidence of the beginning of Chew's Fann, 9r the terminating of the 14th line of the manor, and by reversing the lines from that spot oy point to the place of beginning of the manor, the only inode by which it can be ascertained. The admission of this evidence dogs not preclude the best evidence, the proof of the beginning tree, but is substituted in its place for want of that supeyior evidence, and n.o evil or inconvenience results from the admission of such testimony, but the most beneficial effects, for thereby the survey might be preserved and perpetuated, ft not unfrcqiiently happens, that where a survey has a tree at the beginning, and all the lines are course and distance, and the tree cannot be proved, that the survey has been preserved by the reference of a junior survey to the end of some of the lines, which place of reference can be proved.

The court concur in the opinions given by the court below in the first, fourth, and ffth bills of exceptions.

.TUB GWENT Arj'IKMEP,  