
    Bullock against Malone.
    July, 1826.
    In Ejectment the identity of the premises may be proved by parol.
   JUDGE Taylor

delivered the opinion of the Court.

This was an action of ejectment. On the trial John Haynes was introduced as a witness to prove that he had surveyed the land ; that it was the land described in the declaration; and that the defendant was in possession of it when the action was instituted. This testimony, on the objection of the defendant, was excluded.

Land, when the subject of controversy, is to be identified as other property. Either party may call on any disinterested person to survey it, and the testimony of such person may be given to the Jury. The proof of the defendant’s possession was material to the issue. The confession of lease, entry, and ouster is a mere fiction, adopted in order to bring out the question of- title; and it would be strange if this fiction should be proof of facts material to the issue. Proof of possession in the defendant is believed to be uniformly required by the Courts of .all the States in the Union. The judgment must be reversed, and the cause remanded.

Crawford and Hitchcock, for plaintiff,

cited 2 Doug. 593.

Lyon, for defendant in Error.

The Chief Justice not sitting.  