#### Den on demise of William Tate’s heirs v. Ephraim Greenlee.

From Burke.

Boundary is a question of fact, or of law and fact combined, and propei-only for the decision of the Jury. If the presiding Judge in his charge to the Jury intimate an opinion as to the fact, it is a good ground for a new trial ¡ for the act of 1796, ch. 4, declares, “ that it shall not be lawful for any Judge in delivering a charge to the Jury, to give an opin“ion whether a fact is fully or sufficiently proved, such matter being the “true office and province of the Jury.”

The Defendant claimed title to the land in question, under an older grant than that under which the Plaintiff claimed; and the question between the parties arose from the boundaries called for in the Defendant’s grant. This grant called for six hundred and forty acres, “ lying in “ the county of Burke, on the waters of Silver Creek, “ bounded bij lands of his own (Greenlee,) John Bowman, " John Mackey and Job Morgan : beginning at Bowman’s “ south east corner black oak, thence with Mackey’s land “ south 23° east 354 poles to a post oak on the side of a ee ridge, thence east 230 poles to a pine on the side of the “ road leading from Burke to Broad river, thence north « 68° west 89 poles to Morgan’s corner black oak, thence *557“ north 18° oast 92 poles to a stake, thence west 295 poles “ to a .stake, on Bowman’s line, thence south 46 poles to “ the beginning.” The question was where’ the ffih line should terminate ? If it terminate at the distance called for in the grant, no part of this tract will adjoin other lands of the Defendant (Greenlee,) nor will any part of the lands claimed by the lessors of the Plaintiff be covered by the Defendant’s grant. If the fifth line be extended a considerable distance beyond that called for in the grant, it will reach a tract of land belonging' to the Defendant, and the Defendant’s grant will cover the lands claimed by the lessors of the Plaintiff.

The Court charged the Jury, that the fifth line terminated at the end of the distance called for in the grant. A verdict was found for the Plaintiff $ and a rule for a new trial being obtained, and on argument discharged, the Defendant appealed.

Henderson, Judge,

delivered the opinion of the Court:

From the case, it appears that the Judge charged the Jury that the fifth line of the Defendant’s grant terminated at the end of the distance. From viewing the grant and the plat only, if is quite probable that wo as Jurors would arrive at the same conclusion. But, as has been frequently said during the present term, boundary is a question of fact, or of law and fact combined, and proper only for the decision of the Jury. For the purpose of giving the decision of the question to the proper tribunal, there must be a new trial. The cases of Reddick and wife v. Leggat, and Orbison v. Morrison, decided at this term, and of Cherry and Slade, decided at the last term, contain a more full view of the principles which govern the Court in this case.