OCTOBER TERM, *1767.*

Lib. D. D. No. 13. fol. 221. 232.

#### John Trammell *against*James Hook.

THIS was an action of trespass *guare clausum*fregit, into a close called *TrammelPs Conoy*Islands, in *Frederick*County. The defendant pleaded' the general issue. The plaintiff prayed a warrant of resurvey, which was accordingly executed, and plats were returned.

At the trial of the cause, at the Assises in *Frederick*County, the plaintiff offered to prove by witnesses the trespass marked and mentioned upon the plats returned in the cause, without producing the plats to the jury. To this the defendant objected, and prayed the opinion of the Court, whether such proof should be admitted without producing the plats, the plaintiff not opposing the production of the plats to the Jury by the defendant; but the defendant alleged, that he had not any notice of the execution of the warrant of resurvey issued in this cause, whereon the plats were returned, and, to prove such allegation, prayed, that *George*Scott, Esquire, sheriff of *Frederick*County, who had made the return, and *Basil Beall*and *George*Scott, junior, the deputies of said sheriff, both af whom were, before the warrant of resurvey issued, qualified and sworn deputy-sheriffs, and always since and hitherto have acted as deputies, and acted as such in the said warrant of resurvey, might be sworn to prove that the defendant had not notice of the execution of the warrant according to the return thereof. Whereupon the said *George*Scott, the sheriff, objected to his being sworn to prove, that the defendant had not notice; and the Court were of opinion, that he was not obliged to give any testimony concerning the same. But *Basil Beall*and *George*Scott, junior, were sworn to prove, that the defendant had'0 not notice j and *Basil Beall*declared, that about two *260months before the execution of the warrant, he told *Elias*Delashmut, that the warrant was to be executed the 15th of *September*following, and desired him to inform the defendant thereof. The said Delashmut, being sworn, declared he did not remember that the said *Beall*desired him to give the defendant any knowledge of the execution of the warrant; but that he had some conversation with the defendant two or three days after, when he declared to the defendant, that the warrant of resurvey was to be executed on the 15th of *September.,*but did not tell the defendant that he gave him the information as coming from the sheriff, but thinks he gave the defendant to understand that he collected his knowledge from *Basil Beall*and the plaintiff. And *George*Scott, junior, being sworn, declared, that he attended the execution of the warrant of resurvey as deputy-sheriff, but did not give any notice to the defendant of the execution of the same; but that the warrant not being executed on the 15th of September, from the badness of the day the surveyor not attending, he told the defendant, the day following, that the warrant would be executed the 17th of September, and that the defendant was present at the laying down of the trespasses represented and noted on the plats and return, as alleged against him by the plaintiff. But the Court overruled the objection, and was of opinion, that the plaintiff might prove the trespass noted upon the plats, by witnesses, without producing the plats to the Jury. To which opinion the defendant excepted.