
    James Underwood against George Evans.
    
      Columbia,
    
    1802.
    All rules o«' survey under the authority of any circuís, court, are to be directed-to sworn survev-ors under tin; surveyor-gen eral only, a* no others arc under oath or can swear the. chain carri-vc>' or rail lie re-coned or o¡. „ deuce to a "duJ’and'rea-t!ie opposite party ot the time of i»s-neglect or «>- wh?ch muotbe sadsliction^of c°ui^ «eiveii.
    TRESPASS to try title to land. Motion to set aside nonsuit.
    When this cause was called for trial, a Mr. Dubose, a surveyor, was offered as a witness to prove a plat and resurvey of the land m question ; and upon being ashed whe- , , , , ther he was a sworn deputy under the surveyor-general, - . . . , answered m the negative; whereupon,
    Mr. Falconer, as the attorney of defendant,
    objected to his being sworn, contending, that none but regular sworn ° u deputies under the surveyor-general of the state could regularly make surveys under the rules of this court, as no other could swear the chain carriers, or be known as regular officers appointed by due authority. He also observed, that this was an ex parte survey, made without due notice to his 1 J client of the time when it was to be made, agreeably to the rule of court; so that the plat was inadmissible on both these grounds. He said, that he made this objection at the threshold of the pause, as it had been determined that it was too late to make the exception after the surveyors were sworn, and the parties had gone into the cause.
    
      Mr. Mathews, for the plaintiff,
    could not deny that the survey was an ex parte one, alleging, however, that the defendant might have attended if he pleased, as he had several days notice, but he was not prepared to prove such regular notice ; whereupon,
    Mr. Falconer moved for a nonsuit, which was accordingly ordered by the presiding Judge (Ramsay.)
    This was therefore a motion to set aside this nonsuit', upon the ground of its having been irregularly ordered j but.
   The court

refused the motion unanimously, being of opinion, that all rules of survey to be made under the direction of any of the circuit courts in this state, should be directed to sworn deputies under the surveyor-general; as no others were under oath to perform their duty faithfully, and no others could swear the chain carriers to do impartial justice to the parties, unless in cases where both parties agreed and fixed upon a surveyor themselves, in which case their agreement would be binding, and would form an exception to the general rule, as well with respect to the surveyor as to the chain carriers.

And with respect to making ex parte surveys, none such ought ever to be received or offered in evidence to a jury, Unless in cases where one of the parties was ready to go on' and make the survey with his regular surveyor, and had given the opposite party regular notice of such his intention, a reasonable time before such survey was to be made. Then, if the party so notified, refuses or neglects to attend with his surveyor, the party ready and desirous of making the survey, may go on and make his survey, which may be received in evidence upon the party’s proving the due and regular notice, and the neglect or refusal of the opposite party to attend.

Rule for setting aside the nonsuit discharged,, as it appeared to have been regularly ordered.

All the Judges present.  