
    MAY TERM, 1768.
    Baker vs. Pearce.
    Trespass for breaking and entering the plaintiff’s close called Browning’s Neglect, in Cecil county.
    1, The Plaintiff at the trial in Cecil county court in June 1759, noncul. being pleaded and issue joined, offered a witness to prove the possession of the plaintiff in the said close. The defendant objected, alleging that the witness had a lease from the plaintiff of part of the said close, which was admitted. The Court decided that the witness should not, for that reason, be examined in the cause. The Plaintiff excepted.
    2. The Plaintiff offered one II. Sappington as a witness to prove the plaintiff’s possession of the said close, who being sworn on the voire dire, at the instance of the defendant, was asked by the court, “whether or not he was to be a gainer or loser by the event of the cause?” Answered, that he did not know he was to be a farthing gainer or loser by the event of the cause? but-said he was to have a lease from the plaintiff of that land: upon which the trespass is supposed to have been committed. The defendant objected to the said Sappington’s being sworn generally, for that what the witness had disclosed had discovered such an interest in the cause as disqualified him from being an evidence. The Court decided that it was such an interest as disqualified the witness from being sworn generally in the cause. The», Plaintiff excepted — and appealed to this court.
    
      Judgment Reversed- by this court, at April term, 1766, and a new trial ordered at the Cecil assizes.
    3. The plaintiff at the new trial produced a witness to prove his possession in the close in which the trespass is alleged to have been committed. The defendant offered and insisted to examine the same witness, to shew a prior possession in Mm in the place where, &c. upon the plea of not guilty. The plaintiff objected, it not be-ing legal evidence, upon the general issue plea of not guilty.
    
    
      Hall, S. Bordley and Paca, for the Plaintiff.
    
      Garnet and Rmnsey, for the Defendant.
   Hands, J.

was of opinion, that it was not proper evidence to be given in this case to the jury. The defendant excepted.

Verdict for the Plaintiff: and upon the return of the Postea, the provincia! court adjudged the exception good, set aside the verdict, and ordered a venire facias juratores de novo.  