#### Doe on the demise of H. STEVENS v. J. M. WEST, et. al

la all cases, where there are two persons, having the same- name,. the elder is presumed to be meant when there is no addition to. the- name..

Where a surveyor said, in evidence that he did not know where- the beginning corner of a tract of land was, and had heard no reputation as to its *50locality, it was Held not to be competent to ask him, as an expert, if he did not have an opinion as to the locality of the point in question, founded on a former survey.

This was an action of ejectment, tried before Peeson, J., at the Spring Term, 1857, of the Superior Court of the county of Brunswick.

The lessors of the plaintiff claimed title to the land in dispute by descent from Mary, who was a daughter of Caleb Granger, and wife of "William Blount, a former Governor of Tennessee. They proved that they were his heirs at law, and that the defendants were the tenants in possession at the time of the service of the declaration.

The lessors of the plaintiff showed, as the origin of their title, a duly certified copy of a grant from the register’s office in New Ilanover county, to John "Watson for 640 acres of land, dated 13th of September, 1735 ; and in deducing their title from him, they produced a copy of a deed from him and his wife to Joshua Granger, dated 12th of January, 1737-’8. There was much other evidence introduced,.both written and oral, which it is unnecessary to state. The only two exceptions upon which the counsel for the lessors of the plaintiff relied, in their argument before the Supreme Court, arose as follows : It appeared from the testimony that there were two persons of full age, in the year, 1737-8, when the deed from Watson and wife was executed, who bore the name of “Joshua Granger,” and they were father and son. It was necessary for the lessors to show that the deed was made to Joshua Granger the elder, and the defendant insisted that there was no evidence of that fact; whereupon the counsel for the plaintiff asked the Court to instruct the jury that “Joshua Gran-ger, without addition, ex vi termini, as between, father and son, in law, meant Joshua, the elder.” This, the Court declined, but left it to the jury as a question of fact, telling them that there was evidence in the deeds and, papers, which had been read, from which they could find the fact. For, this the-plaintiffs counsel excepted.

The grant to John Watson was for 640 acres of land “in *51Mew Hanover precinct opposite to the Thorough-fare to the H. W. River, and is called Newton, beginning at a pine, John Maulby’s corner tree,” &e. For the purpose of showing where this corner was, several witnesses were examined, among whom, was General Alexander McRae. He stated that he had seen an old pine buried in the mud, with a mark upon it, where the beginning corner was contended by the plaintilf to be, but he did not know where the corner was, and that there was no general reputation of its locality. He said, however, that he had an opinion about it, formed from a survey made by him several years ago, and that he was an expert in the business of surveying. Upon this, the plaintiff’s counsel proposed to ask his opinion; but upon objection by the defendants, it was disallowed by the Court, and the counsel ex-, cep ted. There was a verdict and judgment for the defendants, and the lessors of the plaintiff appealed.

London, Si/range and Troy-, for the plaintiff.

W. A. Wright, for the defendants.

Battle, J.

The case comes before us upon two exceptions only, and our opinion is decidedly in favor of the plaintiff upon the first, and as decidedly against him upon the second. It is now well established, as a rule of the common law, that if there be father and son of the same name, and a promissory note, deed, or devise be niade to a person of that name, it shall be taken to have been the father and not the son, unless it he proved that the son, and not the father, was meant. Thus, in an action upon a note, payable to Henry Sweeting, it appeared that there were a father and a son of that name, Baylet, Judge, held that prima facie the father was the payee, but he allowed proof that the son was meant, and was the person entitled fó recover upon it; Sweeting v. Fowler, 1 Stark. Rep. 106, (2 Eng. Com. Law Rep. 316). To the same effect, see Stebbing v. Spicer, 65 Eng. Com. Law Rep. 827. So, in Jones v. Newman, 1 Wm. Black. Rep. 60, it was decided that a devise to John Cluer, was presumptively to the *52father, and not the son, of that name, though the Court permitted parol evidence to be given to show that the son was the devisee intended. The rule may, perhaps, be laid down more broadly, that in all cases, where there are two persons having the same name, whether they stand to each other in the relation of father and son, or not, the elder is always presumed to be meant where there is no addition to the name. The reason is, that when one has a particular name, and af-terwards there is a younger person to whom the same name is given, the first does not thereby cease to be known by that appellation, but the latter must be distinguished from him by the addition of junior, or perhaps in some other way. In 2 Fitzherbort’s Natura Brevium, 267, we find a writ, called a writ de idemptitate nominis, which is to be sued forth, “ where a man is sued in a personal action, and upon the capias or exigent awarded, another man who beareth the same name is arrested by force of the writ.” In the note (a) to the page from which the above extract is taken, it is said that “in the case of Wilson v. Stubbs, it was resolved, if, in a writ against I S, I S the elder is taken, after judgment it shall be intended I S the elder. And yet, after judgment, I S the younger, if taken, cannot have an idemptitatc nominis, but false imprisonment; but see the precedents contra.” Now, whether I S, the younger, could, in such a case, have had a writ of idemptitatc nominis, or would be driven to an action for false imprisonment for redress, it shows clearly, that he was arrested wrongfully under a capias against I S without addition.

The counsel for the defendants, in the case before ns, was compelled to admit that, upon this question, the authorities were all against him: but he contended that the facts and circumstances were submitted to the jury for them to find, whether Joshua Granger, senior, or junior, was the person to whom the deed, from Watson and wife, was made. It is true, that the Judge did submit that question, as one of fact for the jury, upon the evidence before them, but he erred in refusing to give the instruction prayed by the counsel for the plaintiff, *53that the presumption of law was, that the elder, and not the younger, was meant, so that the burden of proof, upon that point, should be thrown upon the defendants.

Eor this error, the judgment must be reversed, and a venire de novo awarded.

This result would make it unnecessary for us to express an opinion upon the second exception, and we should not do so, were it not almost certain that the question will be presented again upon tile next trial, and it may possibly save them from expense and delay, for us now to declare the decided opinion which we entertain upon it. Ve think that the question upon which General McRae was asked to give his opinion, was not one of science, or skill, as to which, as an expert, he could be interrogated. The enquiry was as to the beginning corner of the Watson grant, and that was a simple question of fact, to be proved like any other fact. lie might have been asked with propriety, had it been necessary, whether from the marks on the pine tree which lie found buried in the mud, he believed that it had been marked as a corner, and was the corner tree of some tract of land. The ascertainment of the marks, on the tree, end the purpose for which they were ¡out there wore matters of science and skill appertaining to the business of a surveyor, but whether the tree was the corner of the Watson grant, or of some other grant or conveyance, was not at all a question requiring the peculiar knowledge of an engineer or surveyor. Tims, we find it stated that a “ practical surveyor may express his opinion, whether the marks or trees, piles of stones, &e., were intended as monuments of boundaries ; hut he cannot ho asked whether, in his opinion, from the objects and appearances which he saw on the ground, the tract he surveyed was identical with the tract marked on a certain diagram.” See 1st Greenf. on Ev. section 440, and the cases there cited.

Eor these reasons, we think that the testimony objected to was properly rejected ; hut for the error on the other point, there must be a new trial.

PeR CüRIAM, Judgment reversed.