OCTOBER TERM, 1766.

Lib. B. T. No. 5. fol. 640. and D. D. No. 11. fol. 598.

#### Thomas Bladen’s Lessee *against*William Cockey.

EJECTMENT for a tract of land called *Curse’s Forest,*lying in *Baltimore*County. Defence was taken for *Cockey’s*Folly, granted in 1721.

At *April*Term, 1760, when this cause was first tried, the plaintiff, in order to fix the location of the survey of *Carse’s*Forest, as it was laid down on the plat, offered in evidence the deposition of *Christopher*Gist, being among other depositions taken on a commission, which depositions and commission were produced in Court; and offered to prove by *Alexander*Lawson, one of the commissioners, that the depositions were taken in consequence of the commission thereto annexed, and that the commission was then in the custody, and always'had continued in the custody of said *Lawson*to that time, and offered to'prove by said *Lawson,*that the deposition of *Gist*was taken in the presence, and upon the cross-examination of *John Cockey,*the taker up of the land called *Cockey’s Folly,*and ancestor of the present defendant, and which land the defendant had taken defence for ; that several of the depositions annexed were táken at the instance of *John Cockey;*and offered further to give in evidence that *Christopher Gist*was then *dead;*and *Alexander Lawson*offered to' swear that the words “ *October*3d, 1743, commissioners present, “ Mr. *Charles Ridgely, Alexander Lawson,”*written in the paper annexed, were written by him, the witness, and that when he wrote them, the said *Charles Ridgely*was present. The defendant’s counsel objected to the evidence so offered, and the Court allowed the objection, and overruled the evidence.

*231At the trial of the cause at this term, two exceptions were taken to the opinion of the Court. '

1st. The plaintiff offered in evidence the original grant, of the tract of land called *Curse’s*Forest, to *Robert Curse,*dated 15th *August,*1696, And also an escheat patent of the same, dated the 4th of September, 1746, to *George Stexv*art, and a deed of bargain and sale from *George Stewart to Thomas*Bladen, the lessor of the plaintiff, dated the 16th of *February,*1746. And the plaintiff, in order to prove the location of the land, as laid down on the plats in the cause, also offered to give in evidence to the Jury the testimony of *Thomas*Franklin, that he, the said Thomas, hadseen abook of field notes, which,he was informed by persons now dead, were the field notes of *Thomas Richardson*the surveyor, who made the surveys and certificates of the tract of land called *Cockey’s*Trust, and of the tract called *Carse’s*Forest, both laid down on the plats in the cause, many of whose certificates, as he was informed they were by persons also then dead, he had seen, and from the similitude of the hand-writing, believed the said book of field notes to be in the hand-writing of said Richardson, in which field book were contained the field notes of the tract of land called *Cockey’s*Trust, and in the notes there was a white oak tree referred to as standing at the end of the S. W. line of the tract called *Cockey’s*Trust, and as being marked at the time of surveying thei'eof. And offered further to give in evidence, that said *Franklin*had once had possession of the book of field notes, and had lent it to some person or other who never returned it, and did not know in whose possession or where it was; that he had never seen the said *Thomas Richardson*write, nor had any knowledge of *Richardson’s*hand-writing, other than from tradition ; that he did not know whether the field book, or any of the certificates was *Richardson’s*handwriting by any other means than was mentioned. To which evidence the defendant objected.

*232And the court were of opinion, and did accordingly adjudge, that the same matters ought not to be given in evidence to the Jury to prove the location. To this opinion the plaintiff excepted.

2d. To prove the location of the tract of land called *Carse’s*Forest, as laid down by the plaintiff, Colonel *Charles Ridgely*(who had acted as commissioner under a commission issued from *Baltimore*County Court, at the instance of the lessor of the plaintiff, to prove the bounds of a tract of land called *Carse’s*Forest, as appeared by the commission which was produced, dated the 9th of June, 1743, and directed to *Alexander Laxvson, Robert North, Charles Ridgely*and *Christopher*Gist) was offered to prove the substance of what had been declared upon oath before him as a commissioner in the said commission, by *Christopher Gist,*deceased, son of *Richard Gist,*formerly surveyor of *Baltimore*County, also deceased, to have the same effect as tradition or hearsay, (the said commission being so Irregularly executed, that the depositions taken thereon could not be offered in evidence,) to which it was objected on the part of the defendant; and the Court were of opinion, and did accordingly adjudge, that Colonel *Charles Ridgely*should not be permitted to relate the substance of what had been declared by the said *Christopher Gist,*to have the effect aforesaid, or any other effect. The plaintiff excepted to this opinion, and appealed to the Court of Appeals.

*Johnson,*(short notes) for defendant.

*Carso’s Forest*was originally granted to *Robert Carso*on the 15th *August,*1696. And on the 4th *September,*1746, granted as escheat to *George Stexvart.*Between the original grant to *Carse*and the escheat grant to *Stewart,*in 1721, the same land was granted by the Lord Proprietary to *John Cockey,*father to the defendant, by the name of *Cockey’s*Folly. The question is, whether the grant to *233
      *Cockey*in 1721, will be an elder title than the escheat grant to *Stewart*in 1746, under which the plaintiff claims.

Patents are vacated only in Chancery, and if *Cockeyes*grant has not been vacated, and thereby become void by reason of any fraud in *Cockey,*in obtaining escheat land, by a common warrant, at a less price, it is the eldest grant and therefore must operate. Whether there was fraud or not can only appear *dehors*the patent, for there is nothing on . the face of it to shew there was fraud practised. A *scire facias*will not lie in Chancery to repeal a grant made by the crown, for deceit or fraud, unless it appear in the body of the grant. 4 *Inst.*38. 1 *Vern.*280. 383. 387, 388. 9 *Mod.*48. 2 Chan. Rep. 158. To render this grant then inoperative, a greater power must be shewn in the law Courts than in Chancery. The relation of the escheat grant cannot take place to defeat mesne lawful grants. He cited 12 *Mod.*78. 17 *Vin. Abr.*tit. Prerogative, 101.115. 3 *Lev.*220. and 3 *Lev.*285. 2 Vent. 200. 1 *Bl, Rep.*133. *141.*147. 163, 164. 174, 175.

*Hall,*contra, (short notes.)

By the charter, this Province was erected into a County-Palatine, and as a County Palatine, the Lord Proprietary is entitled to the royal rights and prerogatives that Counties Palatine are entitled to. 4 *Inst.*204, 205. *Davises Sep.*case of the County Palatine, 59. 3 Bulst. 157, 158. A distinction is made between a grant for a false consideration and a grant on a false suggestion. A grant for a false consideration is voidable, but a grant on a false suggestion is void. *Bro. Abr.*tit. *Patents,*26. And it is immaterial whether the party making the suggestion knows whether it be true or false. 6 *Co. S3.*He took two grounds, first, that *Cockeifs*grant was void, because it was obtained on a false suggestion, whereby the Lord Proprietary was deceived in his grant. *Moore,*45. pi. 137. 3 *Lev.*134. 6 *Co. S3.*2d. It must be postponed to the escheat grant, which relates back to the original grant. Sir. *W.*Jones, 428.

*234
      *At February*Term, 1771. The Coutt of Appeals reversed the judgment of the Provincial Court as to the last exception.

Short notes of points raised at the trial of this cause.

*Question.*Whether the deposition of Franklin, taken under a rule of the last Court, because he was then sick and unable to attend, shall now berread in evidence, he being able to attend ? Cases cited, 1 *Salk.*281. 2 *Salk.*690. *Comb.*63. 1 *Keb.*36. 249. 787. 2 *Keb.*13. *Gilb. Eq. Rep.*16. 18. 11 *Mod.*210. *Trials per Pais,*385, 386.

No person can make a bargain and sale, who hath not the actual possession at the time of the sale: if he hath not, then the deed must be sealed upon the land, upon an entry for that purpose, for the entry puts the party grantor into possession, and purges disseisin. *Carter,*161. 2 *Inst.*672. 1 *Lev.*270, 271, 272. 3 *Lev.*312. 387, 388. *Cro. Eliz.*483. pi. 19.

The following is a note of *Samuel Chase,*Esquire, then a practising attorney of the Provincial Court:

It has been determined that the relation of an escheat grant to the original certificate, shall not defeat mesne lawful grants. This was the case of *Bladen’s-*Lessee v. Cockey, (about October, 1766.) The substance of that case was as follows : A tract of, land, called *Curse’s Forest,*was originally granted to *Robert Carse*in 1696. It was granted to *George Stewart*as escheat in 1746. In 1721, the same land was granted to *John*Cockey, by the name of *Cockey’s Folly.*The question was whether the grant to *Cockey*in 1721, was not an elder title than the escheat grant to Dr. *Stewart*in 1746, under whom *Bladen*claimed? 3 *Lev.*285. 2 *Vent.*200. *Cro. yac.*512. 10 *Co.*49.

*235The following opinion was given in the case of *Bladen Cockey.*

D. *Dulany's*opinion.

I must confess that I have great doubts of the propriety in examining the Jurors in the former trial, nor has any instance occurred to me of its ever having been done upon looking into tbe rules of evidence.

A former verdict, without doubt, may be offered j but unless the record be produced, if every one of the former Jurors should be ready to testify that such verdict had passed, they would not be admitted. The record, therefore, being the proper evidence, it should seem that the weight of it should depend upon itself, and parol proof not be admitted, particularly in any manner to lessen the weight of the record.

The former verdict shews the opinion of the former Jurors, and as much as any thing, they can now properly declare. Should a Juror declare that he gave his verdict, because the witness *A.*gave such evidence as he credited, and the witness B. such as he disbelieved, must not that be very improper, unless you go into the inquiry what did *A.*and *B.*declare upon the former trial, and if *A.*and *B„*are alive, and capable of being produced, or if their depositions were before read, and may now again be produced, would this be proper ?

If the witness be dead, and gave his evidence *viva voce:*a Juror may be examined to what he *declared;*but so may any other person who was present at the former trial, and, therefore, such evidence is not given by him in his character of being a former Juror 5 but I think the objection is much stronger, when the Juror is introduced to weaken the verdict on record, for while it stands unattainted, it must be considered in all respects as a verdict.

Why was this evidence admitted before^, and why not now?

*236
      *Answer.*We might think it was in ourfavour, because , , . . . , we had it m our power to conlront it, and to give our cause a better countenance; for we then had a witness (who is now disabled from attending) to prove great unanimity of the Jury. If motives are suggested it is proper to account for them.

But suppose a Juror should still be admitted, I am very strongly of opinion that he can only speak for himself, only declare his own inducements, and not what were the motives of the other Jurors; for surely this would be admitting a kind of evidence, which the rule “ that better ought to be given when better can be offered” opposes, and this will be still stronger, when one Juror is produced to declare, that his brethren did not decide according to the evidence, when the record proves that they did.