APRIL TERM, *1774.*

Lib. D. D. No. 19. fol. *734.*

#### Robert Long’s Lessee *against*William Pellett and others.

EJECTMENT for a tract of land called *SheredineV*Bottom, lying in *Baltimore*County. At the trial of the cause, the following bill of exceptions was taken, viz.

The plaintiff, by his counsel, to prove the issue on his part, offered to prove by the testimony of *Thomas Green.,*who was produced and sworn as a witness in the said cause, the declarations.of one *Thomas*Broad, of, and concerning the tree, alleged by the defendants to be the second *532bounded tree of the tract of land called *Long*Point, and also the beginning tree of the land called *Sheredine’s Bottom;*which declarations were made (as the counsel of the plaintiff alleged) before *William Govane*and *Samuel Hopkins,*commissioners appointed to take the depositions of witnesses, by the County Court of Baltimore, pursuant to the act of Assembly in such case made and provided, by the said *Thomas*Broad, on his oath, by the said *Govane*and *Hopkins*as commissioners aforesaid administered, and afterwards on a *caveat*being entered against recording of the said commission and the return thereof, were not permitted by the County Court to be recorded.

Whereupon, the defendants, by their counsel, objected against any such evidence of the declarations of the said *Thomas*Broad, made on his oath as aforesaid; but the Court did, notwithstanding, declare that the same evidence was legal, and permitted the same to be given in this cause.

The defendants appealed to the Court of Appeals.

Jenings, for plaintiff. (Short notes.)

Objection is made, 1st. That it does not appear that *71 Broad*was dead at the trial, and therefore his declarations could not be given in evidence.

2d. That the proceedings of the commissioners should be produced, and the deposition of *Thomas*Broad, which must be better evidence than the recollection of a third person.

To these objections it is answeredj the plaintiff having obtained a verdict, every thing is to be construed in his favour; and writs of error being for the purpose of reversing judgments, nothing is to be construed in favour of them. 1 *Raym.*71. An assignment of error is in the place of a declaration. 9 *Edw.*IV. 32. Is not *Broad’s*death an error in fact, and can it be mixed with error in law? *5332 *Bac. 217.*Issue may be joined on an error of fact, and it; may be tried by the. country. 1 *Sid.*93. *Raym.*59.

By the law of this Province, generally received and practised, on account of our particular circumstances and situation, hcarsat’' evidence respecting the boundaries of lands is admissible. This kind of evidence being then generally admissible, the question is, whether there are any particular circumstances in this case, which may operate as an exception to the general rule. It is contended that a commission having been taken out to ascertain the bounds of their lands, and the deposition of *Thomas Broad*being taken under this commission, that this deposition should have been produced, and not hearsay evidence of his declarations. This objection then, must be founded on some rule of etddence which it . is supposed we have infringed. And that rule must be considered, and its applicability to the present question. The rule urged in support of the objection is, that the best evidence the nature of the case admits of, ought to be produced. The conclusion drawn is, that the deposition taken by the commissioners, being better evidence than the parol declarations of *Thomas*Broad, it ought to have been produced. The rule does not mean to oblige the party to produce better evidence than is in his possession ; and unless it appear that other evidence is in his possession, he does not by his conduct raise a presumption that the evidence behind would be to his disadvantage. Admitting, therefore, that an affidavit is better evidence (which is not the case) than parol testimony of the same person, yet, unless the party who wants to examine the witness is in the possession of that affidavit, he shall not be precluded from his testimony, for this is not within the meaning of the rule, and would be contrary to justice, and introduce great inconvenience.

At *May*term, 1776, the appeal was *dismissed,*in the. Court of Appeals, with costs to the appellee.

*534Note. On the first docket after the new organization of the Court of Appeals, *(Llay*term, 1779,) the above action appears, and is entered, *continued*until October, 1781, when the appellee filed the following memorial, viz :

To the Honourable the Judges of the High Court of Appeals.

“ The memorial of *Robert Long*humbly sheweth, that “ your memorialist, some years since, commenced an action “ of trespass and ejectment against a certain *William Pellett*“ and others, in the late Provincial Court, on which he ob- “ tained a verdict and judgment. That the defendant filed “ an exception, and prayed an appeal from the said judg- “ ment, to the High Court of Appeals, which appeal was “ afterwards dismissed, and the said dismission confirmed *u hy*sundry acts of the legislature. Your memorialist, “ therefore, conceives that the Court of appeal have no “ power or authority to proceed in the matter aforesaid, and “ that any further prosecution of the said appeal would be “ a manifest infraction of the acts of Assembly passed for “ your memorialist’s relief. He therefore begs leave to “ except to the jurisdiction of the said Court, for the cause “ aforesaid, and to all proceedings on the said appeal, and “ requests that the Court will take no further conusance. “ thereof. *Rob. Long.”*

The act of March, 1780, c. 7. for the relief of *Robert*Long, recites the recovery in ejectment by *Robert Long*against *William Pellett*and others, in the Provincial Court 5 that execution was delayed by an exception taken to the opinion of the Court during the trial of the cause, which was afterwards carried up to the High Court of Appeals, and there dismissed. That the said *Long*had since been prevented by certain resolves of convention, and other means, from obtaining any effect from the verdict given in his favour. And then enacted, that the said *Long*be enabled to issue writs, as well for the recovery and possession of the land, as for the costs and damages. See also the-act of *June,*17^0, c. 11. s. 8»

*535At *May*term, 1783, the Court of Appeals'passed the following order, viz:

On consideration of the act of Assembly, entitled 44 an *n*act for the relief of *Robert Long,”*passed at *March*session, 1780, and also of the proviso in the act for reviving actions and processes in the Court of Appeals, and fo«- other purposes, passed *in June*session, 1780, referred to in the memorial filed by the said *Robert Long;*this Court are of opinion, that the cause on which the appeal was prayed, by *William Pellett*and others, against *Robert Long’s*lessee, is not in Court before them, and that they have not any authority to give ally determination thereon, respecting the matters contained in the bill of exceptions taken in the said erfuse.