
    M'ALISTER'S LESSEE vs. WILLIAMS.
    Ejectment. The lessor of the plaintiff produced a grant to James Disart, upon a fifty shilling warrant for 640 acres; the grant was dated on the 29th of July, 1793 and registered the 21st of December following No. 423; a deed from Disart to the lessor of the plaintiff, dated the 10th of November 1795.
    The defendant did not produce a title but relied on his possession, and shewing the weakness of the plaintiff claim.
    Elisha Walling, a witness for the lessor of the plaintiff, was upon motion of the defendants counsel sworn on his voire dire, and answered that he was not interested in the event of this suit, upon which Scott, of counsel for the defendant, offered to produce witnesses to prove that he was interested.
    Per Curiam. This cannot be done, the defendant had an election before, the witness was sworn, he has chosen to have him sworn on his voir dire, and cannot now introduce proof of his interest ; proof of interest by disinterested persons, is certainly the best mode of ascertaining the incompetency of a witness, where it can be clearly made out, but the defendant has waived this method by requiring the witness to be sworn on his voire dire. If this were not the case in what situation would the court be placed? The witness on oath, says, he is not interested, suppose one or more witnesses produced who say that he is, who are the court to believe? The witness who on oath says he is not, or those who swear, in opposition. Perhaps the credibility of the witness offered may be superior to all the proof offered on the other side. Surely the principles of law will not authorise the court to weigh degrees of credibility. The jury are the competent judges of this, and if the defendant has any testimony to shew that Walling is interested, let it be offered to the jury, who will give it such weight as they may think it deserves.
    
    Walling being sworn in chief deposed that he was employed by Disart to locate and have surveyed 640 acres of land ; that he, the surveyor, and a man of the name of Sims, were in company, when he made the corner called for in the grant he told the surveyor to begin at that place and directed him how to survey the land, but the witness did not see the land surveyed. Some short time after this, the surveyor put the plats of the survey into the hands of the witness, to be returned to the secretaries office, for the purpose of procuring a grant, which he did ; he paid the surveyor's fees and has also paid the taxes for this land for several years, and believes it to be the same described in the grant. Walling also proved that this land covered some of the drains or hollows that made into Blair's creek.
    Trimble and Miller,
    relied upon Hayw. Rep. 359 to shew that the grant was conclusive evidence as to the title; and that all preliminary requisites in obtaining the grant would be presumed.
    Scott and Williams for the defendant said,
    that it was competent to the defendant to defend by his possession, and to shew any imperfection in the claim of the lessor of the plaintiff, so as to prevent a disturbance of that possession. For this purpose they relied upon Esp. N. P. 412. 458. If several requisites are necessary to complete a title, the plaintiff must shew that he hath performed them all or he cannot recover. He has not shewn that the land was actually surveyed by running around the tract, or in fact marking a single line. It was surely necessary to mark something more than the corner.
    But the plaintiff fails in another respect; he has not established the locality of the land called for in the patent; the land is described to lie on Blair's Creek, when in truth it does not touch the creek. Walling states that it covers some of the hollows or drains which lead to the creek, but this is not sufficient.
    
      
       Wil. ed Bac. Ab. 534. n.
    
   Overton, j.

-If the jury should believe this to be the land called for in the grant, they will find for the plaintiff, otherwise for the defendant. The point for the jury to determine is, whether the testimony supports the description given of the land in the grant.

White, j.and Campbell, J.

The defendant does not claim under any title whatever, but relies upon possession only. It is sufficent as against a naked possession, if the plaintiff has a title ; nor can the defendant ground objections to the plaintiff's title, upon possession only, without a title ; whatever might be the case with an individual holding one. The point in dispute, is whether the grant covers the land alluded to in the testimony.

Verdict for the plaintiff. 
      
       See.3. John 386. 5.John 43. 2. Day. 234.
     