APRIL 1802 lands, or in an office less than a freehold, except in

the case of a tenant by elegit, who has a chattel interest, or an interest less than freehold, having a right to hold a moiety of the lands of the debtor, until the debt is satisfied by holding the land and perception of the profits, at the extended value.

The remedy by writ of assize of novel disseisin was given to the tenant by elegit, by the statute of 13 Edw. I. c. 18, to recover the possession of the land in case he was ousted before his debt was satisfied, and this remedy has been extended in England to the tenant by statute Merchant, and statute Staple, by equity of the said statute, from the similitude of their estates to that of tenant by elegit. But the court know of no other case in which that remedy has been allowed to recover an interest less than a freehold; and are of opinion, that the writ of assize of novel disseisin cannot be extended to this case by equity of the said statute, there being no similarity between the estate of tenant by elegit, and the interest which the plaintiff has in the office of chief justice of the fourth district; and besides, the court know of no instance, in this state, in which the tenant by elegit has brought the writ of assize of novel disseisin to recover his possession, and none of the English statutes which passed anterior to the first emigration of the inhabitants of Maryland, have been adopted by the constitution of Maryland, and incorporated with the laws, but such as have been found by experience to be applicable to our local and other circumstances. And it does not appear to the court there can be any other safe criterion by which the applicability of such statutes to our local and other circumstances can be ascertained and established, but that of having been used and practised under in this

state.

For these reasons the court are of opinion, that the writ of assize of novel disseisin cannot be sustained in this case; and order judgment of non pros to be entered.

Whittington

Polk

DUVALL, J. Dissented to that paragraph in the APRIL 1802 reasoning, which states the right of the plaintiff to the office to be during the continuance of the act under which he was commissioned, and that the act of 1801 was an infraction of his right, &c. as will appear by the following letter:

Annapolis, 12th June, 1802. SIR:-To-morrow Col. Done will leave this place, and on his return home, will deposit with you the opinion of the judges in the case of Whittington against Polk.

1 concurred in the opinion given on each of the points made in the cause: that is to say,

1. That an act of the legislature contrary to the constitution is void.

2. That the courts of judicature have a power to declare it void.

3. That the act of 1801 relating to the judiciary is not void.

4. That the writ of assize of novel disseisin the office of chief justice of the 4th district cannot be sustained.

Thus concurring, the opinions and reasoning have my signature: but I declared my dissent at the time, to that paragraph, in the reasoning, which states the right of Mr. Whittington to the office, to be during the continuance of the act under which he was commissioned, and that the act of 1801, was an infraction of his right, &c.

I considered the observations in this paragraph as partly erroneous, and partly extrajudicial.

It would have been more proper to have noted the exceptions in writing, at the time of signing, but that having been omitted, let this letter remain among your files as a memorial that my assent was not given to the paragraph alluded to.

I am, Sir, respectfully,

Your obedient servant,

JAMES EARLE, Esq. Clerk of the

General Court, Eastern Shore.

G, DUVALL.

APRIL 1802 GENERAL COURT, (E. S.) APRIL TERM, 1802.

Dixon
vs.

Swiggett

Parol evidence

DIXON, use of BERRY, vs. Swiggett.

THIS was an action of general indebitatus assump

cannot be given to sit, with also a count for a quantum valebat, for mo

prove the nonpay

ment of the con ney, the consideration for certain lands in Caroline

sideration money

lands

fon veyed sold and county sold and conveyed by the plaintiff to the de

conveyed,

deed expressing

that the considera- fendant.

tion had been re

cei red.

Hammond and J. Bayly, for the plaintiff, in support of their case, offered parol testimony to prove, that the full consideration money had never been paid. They admitted the execution of the deed of bargain and sale conveying the land, and voluntarily exhibited a copy of it, wherein, according to the usual form, the full consideration money was acknowledged to have been received; and on the back, between the execution and the acknowledgment of the deed before the magis trates, a receipt of the consideration money was indorsed and signed by the bargainor as usual; but they contended, that the receipt in full within the body of the deed, as well as the indorsement of the same on the back, were mere formalities, and as such could not prevent them from shewing that the consideration. money was in reality still due. They admitted that it placed the burthen of proof of nonpayment on them, but it was not conclusive against them.

Martin, (Attorney General,) and Bullitt, for the defendant, objected to the plaintiff's giving such parol testimony, on the ground that the deed itself, under the hand and seal of the plaintiff, estopped him from averring any thing contrary to it. They admitted, that where fraud was alleged, parol testimony might be received to shew that there was fraud in the execution of the deed, but it was not admissible for the plaintiff to introduce testimony to contradict his own. deed.

THE COURT were of opinion, that the plaintiff in this case could not give any parol testimony to prove the nonpayment of the consideration money, contrary to his express acknowledgment of it on the face of the deed.

THE PLAINTIFF NONSUITED.

GENERAL COURT, (E. S.) APRIL TERM, 1802. APRIL 1802

RICHARDSON's Lessee vs. PARSONS.

EJECTMENT for Richardson's Discovery and Conclusion, lying in Worcester county.

Richardson VS. Parsons

A verdict in a former suit where the judgment was reversed for error in fact, is not evi◄

a new ejectment

The counsel for the defendant objected to the ver- dence in a trial on dict in a former suit being evidence, because the judgment was reversed for error in fact, the defendant having died before the verdict was taken; and they cited 1 Stra. 162. 1 Morgan's Essays, 94. Gilb. 63. Showers Parl. Cases.

CHASE, Ch. J.

The court are of opinion, that the verdict cannot be received as evidence, inasmuch as the judgment was reversed for error in fact, the defendant being dead at the time and two days before the verdict was given. The judgment being reversed on that ground, there was no legal trial or verdict in the case.

Hammond and Bullitt, for the Plaintiff.

Martin, (Attorney General,) and Harper, for the

Defendant.

GENERAL COURT, (E. S.) APRIL TERM, 1802.

GIBSON'S Lessee vs. SMITH.

EJECTMENT for a tract of land Margaret, lying in Talbot county. rant, and plots returned.

called Robert and of

a tract of land

Where a trant

described it as

Defence on war- lying on the E.

side of Chesapeake bay, and on the S side of a river in

the said bay called St. Michael's river, next adjoining the land of HM, beginning at the said HM's nor thermost bounded oak, running NE and by N up the river for breadth 175 perches, to a marked pine by a marsh, bounding on the E by a line drawn S and by E from the said pine for length 320 perches, on the 8 by a line drawn SW and by S for breadth from the end of the S and by E line until intersect a parallel drawn from the land of HM, on the W with said land and parallel, on the N with said river, containing, &e. Held, that the said tract be located from its beginning to the place where the second bounder thereof stood, and from such place, according to the course and distance expressed in the grant, running 320 perches to the end of the second line, according to such course and distance, and from thence, according to the course and distance expressed in the grant for the third line, to the place where the third line shall intersect with a parallel drawn from HM's land, and from thence, ac cording to the grant, to the beginning, (the jury finding from the evidence the places where the se eoad bounder stood, and where the third line intersected with the parallel,) although such location runs the tract across the land of HM

A record in an action of trespass q. c. f. between parties under whom the plaintiff and defendant in gjectment claim, read in evidence, &c

A land commission defectively executed, may be read in evidence to prove the commission had issued, but for no other purpose

1. The plaintiff at the trial offered in evidence to the jury the patent of the tract of land called Robert and Margaret, surveyed on the 16th of May 1763, for, and granted to Robert Newcomb on the 18th of June 1766, in virtue of an escheat warrant on a tract of land called Harbour Rouse; also the will of the said Newcomb, dated the 9th of March 1790, devising that part of the said tract of land for which this ejectment is brought, to his grandson James Newcomb; also a deed of conveyance for the said land from the said James Newcomb to the lessor of the plaintiff, dated the 10th of December 1793; also the location of the said land on the plots returned in this cause; also the certificate and patent of a tract of land called Harbour Rouse, surveyed for Anthony Griffin, on the 26th of July 1659, and granted to him on the 13th of February 1659, and the location thereof on the plots by the plaintiff.

The defendant offered in evidence the certificate and patent of a tract of land called Harryton, surveyed on the 26th of July 1659. for, and granted to Henry Morgan, on the 13th of February 1659, "lying on the "E. side of Chesapeake bay, and on the E. side of a "river in the said bay called St. Michael's river, be"ginning at the northermost bounded tree of Anthony "Griffin's land, running NNE. up the river for the "breadth of 150 perches, to a marked oak at the mouth of a creek called Kirke's Creek, bounding on the N. by a line drawn E. up the creek for length "320 perches, on the E. by a line drawn SSW. from "the end of the E. line until it intersect a parallel "drawn from the land of Anthony Griffin, on the S. with the said land, on the W. with the said river,

containing 270 acres." The defendant also offered in evidence, the certificate and patent of a tract of land called Kirkham, surveyed on the 28th of July 1659, for, and granted to Michael Kirke and John Hill on the 7th of January 1659, lying on the E. side of "Chesapeake bay, and on the S. side of a river in the "said bay called St. Michael's River, next adjoining the land of Henry Morgan, beginning at the afore.