
    GENERAL COURT,
    MAY TERM, 1789.
    James Clarke’s Lessee against Philip Hall.
    EJECTMENT for a tract of land1 called Elizabeth’'s Diligence, lying in Baltimore County.
    It appears by the bill of exceptions taken at the trial, that the defendant, to prove the issue on his part, and to make title to the land in question, produced in evidence to the jury, the will of John Frazier. And the plaintiff offered to prove, by parol evidence, that one of the three subscribing witnesses to the will was a convict, and transported into the province of Maryland in the year 1750, from Great Britain, agreeably to certain statutes for the transportation of felons.
    
      Martin, Chase and Smith, for plaintiff.
    Potts, Cooke and I. T. Chase, for defendant.
    Cooke, for defendant.
    A record is of so high a nature that it must prove itself. 3 Bl. Comm. 331. 12 Vin. 131. s. 6. Cowp. 3. The conviction must he proved by the record, and cites the case of The Lord Proprietary v. Widdon, (1757,) in which it was decided that there must be a record of the conv cton.
    Chase, for defendant.
    It has been often determined in this state that a record was necessary to prove the conviction. In the case of The State against Ridgely, in the General Court, at May term, 1785, this point was determined. In the case of Henry Widden, who broke open Brice’s store about thirty years ago, Mr. Brice sent to England to procure a copy of the conviction of the person who was a witness against him. It Was defective, and the evidence was rejected. The plaintiff has had time to procure a record of conviction, and having failed to do so, he cannot resort to inferior testimony. How could the testator know of the conviction i There are offences in England which subject the offender to the punishment of transportation, and which does not take away credibility, as under the act of parliament prohibiting the exportation of wool.
    Martin, (Attorney-General,) for plaintiff.
    In the case of Driver and Lee, (April term, 1760,) the Provincial Court decided, that parol evidence of the confession of a witness that he had been a convict was sufficient. All persons punished with the pains annexed to felony arfe disqualified from being witnesses. All indictments for transportable offences, charge with felony under the act of 1751, c. 11., and there is no question about the crime the offender has been convicted of.
    
      
      Chase,
    
    contra, cited certain statutes which direct the punishment of transportation for the repetition of offences not felonious.
   The Court were of opinion that such parol evidence was admissible to prove that the same witness was a convict and transported as aforesaid; but inasmuch as before and-during the year 1750 there were offences not amounting to felony, or rendering a person thereof convicted, infamous, for which, by the statutes of Great Britain then subsisting, offenders might be transported from Great Britain to the then British colonies, in the same manner as felons are directed to be transported there to serve for a term of years. The Court were further of opinion, that it was incumbent on the plaintiff, in order to prove the incompetency of the said witness, to prove by record or other evidence, that he was transported for some offence made felony or infamous by the common law of England, or by some statute of Great Britain, and the Court being of opinion that the parol evidence ¡offered was admissible, the defendant excepted.

(Hanson and Goldsborough)

The plaintiff being called made default. Judgment of non pros.  