#### Den on the Demise of MOSES ERNULL vs. D. P. WHITFORD.

What constitutes an heir-at-law is strictly a question of law; but the facts on which such point of law arises, must be left to the jury for their decision, and there is no error in leaving it to a jury to say, from the facts stated, whether a particular person died without children, and whether another was his oldest nephew.

This Court can be influenced by no complaints of the tone or manner of a Judge below, not noticed in the bill of exceptions.

Where the testimony excepted to is immaterial, this Court will not enquire whether it was properly or improperly admitted.

Action of ejectment, tried before his Honor, Judge Saunders, at the Spring Term, 1856, of Craven Superior Court.

The plaintiff claimed title under John Hill, and offered the copy of a grant to Hill for one hundred acres, dated in 1748. He also offered in evidence, a copy of the record of certain proceedings had in the County Court of Craven, to correct an error in the third course of the patent, in which the father of the defendant, and under whom he claimed, was a party, the purpose of which proceeding was to correct an error, so as to run the third line of the patent North forty-five degrees West 80 poles, instead of running it North forty-five degrees East 60 poles', this is the line D, C, in the annexed diagram. There was no evidence of any order of the Court for a certificate, or of a certificate being filed in the office of the Secretary of State. The copy of the grant and proceedings were objected to, hut received by the Court. Exception by the-defendant.

The deposition of one Jacob Bv/reh was taken by consent of parties, subject to all legal exceptions. lie deposed “that he is in the eighty-fourth year of his age, that he has always lived in Craven county, a large portion of the time in the neighborhood of the Ernull family, to which he is related. That he knew Moses Ernull, the father of the plaintiff, the present Moses ; that he was said to be the nephew of John Hill by the family and neighbors. Moses Ernull, the father of the plaintiff, had brothers and sisters; Moses Ernull being *475tlie oldest, heired the lands of his uncle John Hill, who owned several tracts of land on Swift creek in Craven county. The witness further sayeth, that he does not know the year John Hill died, but he believes it was during the Eevolutionary war,” signed, &c. The defendant objected to so much of this deposition as stated that the ancestor of the lessor of the plaintiff was heir to John Hill.

The counsel for the defendant, in opening his defence to the jury, argued to the Court that there was no proof of John Hill’s death without children, or that plaintiff was his heir-at-law ; to which the Court replied at the time, that the jury might infer it from the facts stated: that plaintiff was reputed to be his oldest nephew, from the proceedings had on a division, and the long acquiescence in that division. Here the *476matter rested, nothing more being said on the point by either of the defendant’s counsel.

In the location of the grant, the plaintiff contended for the lines A, B, C, D, as represented in the diagram, the defendant for the dotted lines E, A, E, G; the plaintiff, that A was the beginning corner, which was a marked pine; the defendant, that E was the beginning corner, and that A was the second corner. A was spoken of by all the witnesses as a corner. The defendant’s counsel said that his client had, at all times, admitted that A was a corner of the tract, and so admitted then.

The Court, in its charge, said that the defendant’s counsel had admitted, as from the evidence they were forced to admit, that A was a corner, and the point in dispute was, whether it was the beginning or second corner. Defendant excepted.

Yerdict for the plaintiff. Judgment and appeal.

Bryan, for plaintiff.

Donnell, for defendant.

Nash, C. J.

There is no error. In the course of the trial it became important to the lessor of the plaintiff to prove that he was the heir-at-law of John Hill, the patentee of the land in dispute. The deposition of John Burch, a very aged man, proved that John Hill died during the war of the Revolution; that he was well acquainted with Moses Ernull, the father of the lessor of the plaintiff, and heir-at-law, and that he was related to the Ernulls. The defendant contended that there, was no evidence of the death of John Hill without children, or that the lessor of the plaintiff was his heir-at-law. His Honor left it to the jury, under the evidence, to ascertain the facts. In this, there is no error. What constitutes an heir is strictly a question of law, but the facts upon which a person claims to be heir to another is an enquiry for the jury. His Honor might have been more precise in his charge, but we think he was sufficiently so not to mislead the jury, and not to devolve upon them a duty which rightly belonged to *477him. If the lessor of the plaintiff was his oldest nephew, and ■John Hill had died without children, (which the jury, under the circumstances, were at liberty to presume, particularly as such was the understanding of the community,) then the lessor of the plaintiff was his heir-at-law. The evidence of Bucrh is that Hill died previous to the act of 1781.

The record of proceedings in the County Court of Craven, to correct a line of the patent of John Hill, was offered by the plaintiff, and objected to by defendant’s counsel, upon the ground that “ there was no evidence of an order of the Court for a certificate, or of a certificate being filed.” The objection was properly overruled. There was no necessity for the proposed amendment, as the calls of the patent would carry the line to the pine tree to which it was proposed to carry it by the amendment. See Rownbree and Person in Note to - v. Beatty, 1 Hayw. 378. The introduction of the record was entirely immaterial.

The last objection, on the part of the defendant, is to the charge of the Judge. The controversy between the parties mainly turned upon the location of a particular corner. The plaintiff contended that the corner designated on the survey as A, was his beginning corner; and the defendant insisted that the corner at A was not the beginning corner of the grant to Hill. It was admitted on both sides that there was a corner at A. In his charge his Honor observed to the jury that “ the counsel of the defendant had admitted, as from the evidence they were forced to admit, that A was a corner.” In the argument here, it was insisted that this observation was said in a manner so significant as was well calculated to throw discredit upon the whole defence. We are necessarily confined to the record, and cannot look beyond it. It certainly can be no error for a Judge to state to the jury the admissions of the parties. It is, indeed, his duty so to do. It strips the case of extraneous matters, simplifies the duties of the j uiy, and expedites the trial. But a Judge ought to be careful not to throw into his observations, by words or actions, anything which may be calculated to influence the jury *478upon points that are in contest between the parties. We do not perceive in what way the expressions of the Judge in this case could have had such an effect; the language is not selected with that care which an anxious desire to keep within the provisons of the act of 1776 would dictate; the words, “ as they were forced to admit,” may have been discourteous and grating to the feelings of the counsel, but as they could have had no effect upon the points really in dispute, we cannot say that his Honor violated the act of 1776.

We have examined the authorities brought to our notice by the defendant’s counsel, on the various points in controversy, and do not see that this opinion is in conflict with them.

Pee Cueiam.

There is no error, and the judgment is affirmed.