¶1And of this opinion was
¶2H. Selby was called by the plaintiff to prove the declarations of a Mr. Bean, who is dead, as to the 2d boundary of 1st line of St. Elizabeth, and that it was some distance westward of the place alleged by defendant; but it appearing that Bean was the owner of an adjoining tract, which would be injured by the defendant’s location, the Court refused to admit his declarations to go in evidence.
¶3Afterwards, the defendant having given the declarations of the same Mr. Bean in evidence, in support of his location, the Court permitted the plaintiff’ to give evidence of Bean’s declarations to the contrary. For if Bean had himself been introduced as a witness for the defendant, it would be competent to give his contrary declarations to others at different times, in evidence, to discredit him, and his declarations cannot be better evidence than his testimony upon oath.
¶4Mr. Key moved the Court to instruct the j ury that all locations made by either parly and not counter-located by the opposite, are admitted to be correct.
¶5Mr. Woodward contended that his client not having in fact attended, although he had notice, was not bound by the plats.
¶6The Court gave the instruction as prayed. It was admitted, that where a boundary is called for and proved, the course and distance must conform, although thereby it varies from the course and distance stated in the-grant.