SHAFFER V. HAHN. which was, when the action was brought, in the possession of the defendants, then the plaintiff's prima facie case would be rebutted, and he would not be entitled to recover. The descriptive clause of the deed to C. F. Guilford is as follows: Beginning at the mouth of Josephus Moore's branch on Jack's creek and runs up the branch to the main road; then with the road, Bryant Gainor's line, and with his line one hundred poles; then south one hundred and sixty poles, or far enough on the northwest or south lines to make one hundred and fifty acres; then east to Bridgeman's line; then with his line north to his corner; then east with Bridgeman's line to Jack's creek; then with the run of said creek to the beginning." The beginning corner, marked "D" on the plot, is a known point, at the mouth of Moore's branch on Jack's creek, and the three succeeding calls it is admitted run with the natural boundaries, the branch, the main road, the Gainor's line by U to figure 1. It is also conceded that the last call in the description runs from the intersection of Bridgeman's line with Jack's creek down that stream in a southeasterly direction to the beginning at D. If after running the three first lines to figure 1, the next call, “160 poles south," should follow the course, it would intersect with Jack's creek at a distance of 1303 poles, and northwest of the beginning, and would intersect there also with Bridgeman's line where said creek is his boundary. If the course is to be blindly followed, without regard to any limitation implied from the context, for the full distance, 160 poles, it would run entirely across Bridgeman's land and beyond any of Bridgeman's lines. But the descriptive words "then south 160 poles" are followed by an alternative description which is inconsistent with a purpose on the part of the grantor to locate the next course south from figure 1. It is manifest that the intent was to run northwest along the line between N. W. Guilford and Gainor so far as it extended, to the point where, by running south to Bridgeman's line, and with it SHAFFER V. HAHN. east to Jack's creek, and down Jack's creek to the beginning, there should be included in the whole boundary 150 acres. In Proctor v. Pool, 4 Dev., 370, Chief Justice RUFFIN delivering the opinion of the Court, said: "It is also a general rule that the deed shall be supported, if possible; and if by any means different descriptions can be reconciled, they shall be, or if they be irreconcilable, yet if one of them sufficiently point out the thing so as to render it certain that it was the one intended, a false or mistaken reference to another particular shall not overrule that which is already rendered certain." If instead of running northwest along Gainor's line, we interpret the description as a call for running first north, then west, and then south to Bridgeman's line, the 150 acres might be measured off in many ways by prolonging the north line and diminishing the length of the west line; but a description that may be met by running in many ways and including different areas, is void for uncertainty. Where a description is substituted, as controlling course and distance, as we propose to do in this case, it must be sufficiently certain to be identified. Addington v. Jones, 7 Jones, 582. A competent surveyor could unquestionably run so far northwest that by letting fall a south line to Bridgeman's line, and running thence east with the line to Jack's creek, and with Jack's creek to the beginning, the lines so located by him, together with the lines. previously known, would embrace one hundred and fifty Cox v. Cox, 91 N. C., 263; Stewart v. Salmonds, 74 N. C., 518. As suggested by Chief Justice PEARSON in the case last cited, the surveyor could fix the location in a crude but practical way by laying off experimental lines on a plot before going into the field, or, with a knowledge of higher mathematics, could determine the location of the line by proper calculation, with absolute certainty. Id certum est quod certum reddi potest. This maxim embodies the test to be applied in all such cases. By running northwest to S, on the plot, SHAFFER V. HAHN. then south to P, on Bridgeman's line, then east to C, which is Bridgeman's corner at the creek, then down Jack's creek to the beginning and including precisely 150 acres in the boundary, the surveyor has practically demonstrated the feasibility of locating the land according to the alternative description, and at the same time carrying out the expressed purpose of the grantor to convey 150 acres. It appears, too, in evidence that neither the northwest, the south or the east line could have been prolonged or shortened without so readjusting them as to embrace either more or less than the prescribed quantity. Moreover, if the northwest line had been extended much further, as plaintiff contended was the correct running, the south line would have failed to intersect with Bridgeman's east and west line, passing entirely west of it; while if it had been extended not over 100 poles, as we have seen, the south line would have passed to the east of the said line. The location adopted by the jury under the instruction of the Court fills another requirement of the deed by disregarding course and running a natural boundary, Bridgeman's line. According to the plaintiff's contention defendants' deed covered only 38.2 acres, and according to plaintiff's view it embraced 402 acres; but by adopting the line indicated by the Court, the leading purpose of the grantor to include 150 acres by locating the northwest and south lines with that end in view, was complied with in the only way consistent with a due regard for the residue of the description. It is settled law that where the calls of a mesne conveyance are clear enough to be comprehended and located by extrinsic testimony, that location cannot be changed by a parol agreement between coterminous owners, unless it related to the running and marking contemporaneous with the making of the deed. Caraway v. Chancy, 6 Jones, 361. The instruction asked that the marking of a line two years after the land was conveyed to C. F. Guilford, in 1873, by said WINBORNE v. MITCHELL. Guilford and S. T. Carrow, was evidence to establish the true location, was properly refused. By running the line so as to include 150 acres, a portion of the land in the actual possession of the defendants when the action was brought, is left outside and falls within the boundary to which the plaintiff has shown title. The plaintiff was therefore entitled to recover. There is, therefore, no error. Affirmed. WINBORNE & BROTHER v. J. S. MITCHELL, SHERIFF, et al. Bail-Escape-Damages--Sheriff. 1. Insolvency of the principal is no defence to an action against the bail; nor can a Sheriff, when sued as bail, show in mitigation of damages such insolvency. 2. A Sheriff having permitted one arrested by him upon mesne process in a civil action, to go into an adjoining room, from which he escaped, was guilty of an escape and subjected himself to the liability as bail. The Code, §§ 299, 313. This is a MOTION in the cause to subject J. S. Mitchell, a Sheriff, to liability as special bail by reason of the escape of the defendant, who had been arrested upon mesne process in this action, heard at Fall Term, 1891, of HYDE Superior Court, Brown, J., presiding. The defendants appealed. Mr. B. B. Winborne (by brief), for plaintiff. No counsel, contra. SHEPHERD, J.: It appears, from the testimony of the deputy, that after making the arrest he permitted the defendant to go into his bedroom, from which the defendant escaped by a back door and has never been recaptured. This surely WINBORNE v. MITCHELL. amounted to an escape in the eye of the law, and brings the Sheriff within The Code, § 313, which provides that, “If, after being arrested, the defendant escape, or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the Sheriff shall himself be liable as bail," &c. The obligation of bail is, "that the defendant shall at all times render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein." The Code, § 299. * * * The foregoing provisions are also to be found, ipsissimis verbis, in the Code of New York, and it is there held that the insolvency of the debtor is no defense to an action against the bail. In Metcalf v. Stryker, 31 N. Y., 255, it is said "that it does not enter into the engagement of bail that they shall be relieved if the debtor is unable to pay the debt. On the contrary, the engagement is to produce the body of the principal so as to be amenable to process, or, in default thereof, to pay the judgment. * It would virtually repeal the statute which allows of the arrest of the defendant in certain cases, to hold that the Sheriff might assume the right to release from imprisonment any who, in his judgment, he should consider insolvent, and to excuse him from paying damages for that act on proof that the debtor was unable to pay." Mr. Murfree, in his work on Sheriffs (section 191), in discussing the same statute, says, "that when the Sheriff is sued as bail he cannot give in evidence, in mitigation of damages, the defendant's insolvency." Accepting these authorities as a correct interpretation of our law upon the subject, we are unable to see how his Honor could, in this case, have adopted any other rule as to damages than the amount. of the judgment recovered by the plaintiff. Even if insol. vency could be considered in mitigation, it would be incumbent upon the Sheriff to show that it was of such a character as to have prevented the collection of the judg ment. So far from showing this, we are informed by his |