
    Paul Trapier vs. J. L. Wilson.
    Under the act of 1791, granting to the Judges of the Court of Common Pleas, the power of determining" all questions arising under Caveats, the Judge, for his own satisfaction, may order an issue of facts to be tried by the jury.
    The court is not bound to suspend the trial of such an issue, until it is taken to the Constitutional Court, to determine whether it be proper soto direct an issue or not.
    A grant located upon a small island, having the general course of the island, and calling for some marks, which could not, be found, and for others on the margin of the island, and having a plat with the surveyors certificate appertaining, marked “ The North Island,” and in different places called “ the Island,” “the place” was Held to include the whole Island.
    Tried before Mr.. Justice Richardson, Georgetown* April, 1S22.
    On the day of 1820, Raul Trapier entered a caveat to prevent the emanation of a grant for 500 acres of land, upon a location made the 19th day of April, 1820, to John L: Wilson, because the said Paul Trapier claimed all the said land under a grant to Daniel and Thomas Laroche, dated the 11th day ofMay, 1739. Whereupon the following orders were made, “on motion of Edward P. Simons, 'attorney for John L. Wilson, the defendant, it is ordered that an issue be made up to ascertain whether the land tying at aplace called North Island, and run out for the said defendant, and for which, a grant has been applied, and against which application, a caveat has been entered by Paul Trapier, the plaintiff, be vacant land or not.”
    
    On motion of Mr. Simons, it is ordered, that a rule Of survey do issue in this case, directed to Thomas Shrine, on the part of the caveatee, and one other person, on the part of the caveator, to survey the lands in dispute.”
    An issue was accordingly made up in the form of a wager to determine whether the grant to Laroche covered the land located for the defendant.
    At April Term, 1822, the defendant objected to the trial of this issue by the jmy, which being overruled, the plaintiff adduced the grant to Laroche, which described the land as follows, “ all that parcel or tract of land, containing eight hundred and fifty-four acres, and butting and hounding to the westward on salt-water marsh partly, and partly on a creek, and south-westward on Winy aw River or Bay,' and to the Eastward on the sea, and to the northward on a place called the Basin, near North Inlet.”
    The plat annexed to the grant, represented the land generally, as set forth in the grant. But oá the south-westward, it noticed three specific station trees, i. e. “ A eassena; an old stump, and a spreading live oak.” At the southern termination of this line, the plat called for an old wreck. The southern boundary had neither the course nor distance laid down. The boundary to the east, called for two natural stations, i. e. t( The. Look Out” and the “ Land Hill,” and two artificial stations, “ a Dead Water Oak,” and “ two Stumps.” At the northern termination of this boundary, it called for a stake. The course of this line appeared to change more or less at every station ; but only thp general coui’se and distance were given in these words, “ The general course is N. E. 12, 332 eh. to the Basin,” and the course and distance from the southern termination to the first station, “ The Look Out.” This line called for the sea-shore, as its boundary eastward.-— 
      ón the north, the plat called for the basin, and on the west ■'-ii-v/.'iei- . \>A jreBv On this lest side, the plaintiff had located the rr.avsh and taken ovt grants therefor. Besides the evidence furnished by iL. ;<mr,t E‘.:d plat, it appeared that not one of the specific artiikkd marks called Lr had been found, though trees and stumps were seen about the supposed site of the stations, and also many sand hills. It appeared too, that the length of the island was more than a mile, greater than the distance described on the eastern line, and the surplus land 500 acres or more. Old Mr. Trapier’s hóuse was said to be within the land located for the defendant, and also the light house, the site of which had been granted by this state to the United States.
    The question was, whether the grant to Lar'oche covered the whole of the island, except the salt-water marsh, or was it to be located according to the courses and dis-tances set forth in the plat ?
    The defendant had located the margin of North Island on Winyaw bay to the south westward, and on the sea shore to the eastward. And the south end of the island, all down to low-water marsh.
    The jury, according to the opinion of the Judge, found that there was no vacant land as supposed on the part of the defendant, and the Judge then granted the following certificate to the plaintiff.
    STATE OF SOUTH-CAROLINA, Georgetown district. ,
    Paul Trafier vs. John L. Wilson.
    In the Common Pleas, April Term, 1822.
    Case on a caveat entered by the plaintiff against an application made for a grant by the defendant, viz :
    “ To his excellency, Thomas Bennett, governor and commander in chief in and for the State of South-Carolina. I, John S. Richardson, one of the justices of the Court of Common Pleas, in and for the state aforesaid, do hereby certify that on the caveat entered in the above case, between Paul Trapier and John L. Wils&h, an issue! was directed by the court to ho made up and submitted to a jury, to enquire wiicl her tho land on North Island, in Georgetown district, run for the defendant, by Thomas Shrine, surveyor, was or was not vacant land, and on the trial of the said issue, at Georgetown, in the district aforesaid, before nre, the said John S. Richardson, the jury did find for the said Paul Trapier, the plaintiff in the said issue, and thereupon, I do hereby certify that the said land run out on the said north island, by the said Thomas Shrine, for the said John L. Wilson, is not vacant land, and that therefore the caveat entered in this case ought to be, and is hereby sustained, and that the grant applied for by the defendant ought not to issue.
    In witness whereof, I the said John S. Richardson have hereunto set my hand and caused to be affixed the-seal of the said Court of Common Pleas, at Georgetown, the eleventh day of April, in the year of our Lord one thousand eight hundred and twenty two, and in the forty sixth year of the sovereignty and independence of the United States of America.”
    The defendant moved for' a new trial upon the following grounds :
    1st. That the case ought not to have been permitted to go to the jury, but under the act of 1791, to have been decided by the Judge alone.
    2nd. That when the judge had determined to submit it to the jury, a notice of appeal was tendered, which the defendant’s attorney Contended ought to suspend the trial of the case before the jury, until a decision of the Constitu - tional Court, on the right of submitting it to the jury.
    3rd. Because the verdict is contrary to law and evidence in this. 1st. The jury departed from the actual closed lines and definite land marks, natural boundaries. ..2nd. That the outer lines of the defendant were the inner lines of the plaintiff, forjwhich he sought a grant, and could not be included in the grant under which the plaintiff claims.
   Mr. Justice Richardson

delivered the opinion of the. oourt:

The two grounds relied upon by the counsel were,

1st. That the issue was not for the jury to determine, but for the Judge under the act of 1791.

2nd. That Laroche’s grant was limited to the specific! course and distance called for b}7 the plat, and not by the natural boundaries.

The act of 1791, granting the power of determining questions arising under caveats made, is as follows: “ And whereas, during the existence of the former constitution, ■certain powers were given by several acts and resolutions of the legislature, to the governor and council, which powers cannot be now exercised, by reason of the alteration in the executive authority of the state : For remedy whereof, be it enacted, that the Judges of the Court of Common Pleas, or any one of them, in their respective districts, are or is hereby vested with the exercise of the said powers, so far as the same shall extend to hearing and determining of causes in the court of caveats, which caveats shall be en^ tered as heretofore.”

By the terms of the act, the Judge is to decide all causes in the court of caveats. But it is not therefore illegal to draw information, upon questions of fact from the jury, ‘¿ad cuestiones facti respondent juralores.”

I know of no question turning upon facts, on which the Judge may not direct an issue, in order to obtain the assistance of the jury. In so doing, the court seeks for information, although not absolutely bound by the opinion of the jury. In questions confined to the Judge, such a, finding is like that upon an issue out of chancery, not imperative, though of great weight in the decision. But though not of binding authority, is a rational and usual source of information ; and is in the true spirit of our sysi tern of judicature.

As to the ground, that the case ought to have been suspended until the Appeal Court should have decided., whet •ther the issue ought to have gone to the jury,?

This like ah iru'ti-r.us to contiene a cause, was a motion addressed to u; Jiscretion of the court.

We come ' .■■-. to ihe question of location, which was of real importa:'-- ■ ■ hi the case, a.ud the proper object of the enquiry. If there was any vacant land in the defendants survey, he was entitled to a grant. But was there any vacant land ? It is not denied that the land alleged to be vacant, lay within the natural boundaries, called for by the grant to Laroche ; — that is, it lay between the marsh and creek to the westward; Winyaw River to the south-westward ; the Sea to the eastward, and the Basin to the northward. By the description set forth in the grant, the location is plain and unquestionable. The whole island, (unless the marsh be so called,) is clearly within it. ’ But it was urged, that as the plat called for specific stations, as trees,” “ stumps,” a wreck, &c. and in some instances, laid down a precise course and distance from one station to another, we are to be governed by the course and distance thus laid down, which would restrain the limits much within the natural boundaries, and leave to the caveatee the vacant land claimed. But such a principle of location has in this case insuperable difficulties. Not a corner or station being found, wo have no point of departure, i. c. no beginning or term from which to measure coarse or distance. Not a single point from which the surveyor was to set put to measure course and distance could be found. For aught that appeared too, the corners and stations, whether natural or artificial, may have been upon the margin of the river, sea, or basin called for, so as to he consistent with the natural boundaries. This probable supposition would also reconcile the plat to the grant, which ought, if possible to be clone. Again,, the long eastern line of the plat, though continually varying, has only its general course laid clown, with the trifling exception, as far as the Look Out. And tho’ it calls for natural and artificial stations, it is a waving line, as if pursuing the water’s edge, and moreover calls for the sea-shore. The plat too is marked thus, u The North Island by a scale of 40.” Why use the comprehensive -name of the North Island,” if apart only were intended to be delineated ? The certificate of the surveyor also describes the land as being a place called cc North Island, &c.” Again, I ask, why this comprehensive term “ a place” unless in order to signify the whole. “ The Isl- and” or the “ place” means the whole island, of place. It was suggested that the word at” may have been left ■out, but the original certificate to the plat has no such qualifying preposition, and even were it so, I should deem it but of little weight, opposed as it would be to the other expressions and marks, which concur with the natural boundary, and to the important and satisfactory rule of reconciling the plat to the grant, in order to render the whole consistent in itself. The plat and grant appear then easily reconciled, though at the first glance of the plat alone, one might well conclude, that if a corner or station could be designated, remote from the natural boundary, the course and distance might be taken as the principle of location. But to assume it in this instance, would be to pursue the last rule in geometrical mensuration in place of the first and best, which is to follow the natural and im-. moveable boundaries, unless the specific and artificial marks fall evidently short of them. Whereas it is only in default of both, the artificial and natural marks, that the mere course and distance called for are to govern.— (6 Mass. Sep. 131, 252. 15 Johnson, 447. 12 So. 252. 4 Hen. & Mum. 130. 4 Wheaton, 444. 6 Cranch, 237. 3 Dallas, 436.) For my part I have no conception of a correct location of land, by course and distance, where there is no terminus a quo. Where there is no station or corner found, it becomes absolutely necessary to resort to boundaries, and even to the boundaries of surrounding lands, in order to locate the tract calling for them. In the case before us, the surveyor must have assumed some point, and he seems to have fixed on that where the Cassena stood, assuming that it stood remote from the ri-i ver. But at this late day, why not, when it is consistent too with the natural boundary, suppose the Oassena to have stood upon the verge of the shore, so as to render it consistent with the boundaries required by the grant.— Assuredly surplus land being found, is of little consequence ; for the quantity of land is whatever is contained within the true boundaries ; and the end of the location is to fix the boundaries, which being done, the quantity follows, being the contents within them. The notice in the plat of the number of acres is in fact but an expression in the general description, and is very seldom put down with accuracy. Upon a near inspection then (for it is seldom that the location of land depends so little upon extrinsic evidence) it is satisfactorily evident, both from the plat as well as the grant, that no part of the 500 acres contained in the defendants survey was vacant land.

Simons, for the motion.

The motion is therefore dismissed.

Justices Colcock, Nott and Johnson, concurrred.

Gantt, Justice:

The question in this case being, whether under the Act of Assembly, the Judge was alone authorized to decide on a question of caveat. On that question, I think the co’ursq pursued was illegal, therefore dissent from this opinion.

--contra.  