
    Commonwealth v. Cunningham.
    1849. December Term.
    
    A purchaser of land by a parol contract, who is in possession, and has paid the purchase money, is a freeholder, and qualified to be a grand juror; though a writ of right brought against him by a third person, for the recovery of the land, is pending.
    
      Harrison B. Cunningham was indicted at the August term 1846, of the Circuit court of Ritchie county, for selling ardent spirits without a license. At the August term 1847, he filed a plea in abatement, that Abel Linnett, one of the grand jurors who found the indictment, was not at the time a freeholder in the county of Ritchie. Issue was taken on this plea : and the following facts were agreed, viz : Abel Linnett held his land under a parol purchase from his brother George, made in the fall of the year 1832. In the fall of the year 1842, he took possession under the parol contract, and had lived there continuously ever since, until the time of the trial. That he had paid the taxes on the land regularly, from the year 1839, and had paid rent to no one. That he had cleared from fifteen to twenty acres of the land, and had built a house upon it. That prior to March 1843, he had paid his brother the whole of the purchase money in payments; though they had never had a settlement by which that fact had been ascertained between them. That in March 1843, a writ of right was brought to recover the land by Copland and M’Graw, in which the mise had been joined on the mere right; and the suit was still pending and undetermined. That Linnett was a member of the grand jury which found the indictment; and that he claimed no other title to land than that above stated: And it was agreed that the Court should render judgment upon the facts agreed.
    
      The judgment of the Court was in favour of the defendant, and the Attorney General, in behalf of the Commonwealth, applied to the Court for a writ of error, which was awarded.
   By the Court.

The judgment is reversed with costs, and judgment is to be entered for the Commonwealth, the amount of the penalty being first ascertained by a jury.  