
    GENERAL COURT,
    MAY TERM, 1805.
    Cole’s Lessee vs. Cole.
    If after a witness is sworn on the ‘•voir dire, it ftp pears from his 07ww testimony^ on his examination in chief, that he is interested, his testimony may be ^ejected
    But if his interest appears only ¿from the evidence of the other witnesses, his testimony cannot he
    ‘if the defendant jn ejectment -daims tinder a ,.x separate bequest of leasehold property, and A B íia-» a similar bequest by the same will, and there is also an ejectment dependmragainst A B for <he property 20 bequeathed, brought, by the same plaintiff., who is the executor of the will, A B is a competent witness forthe defendant to prove that the plaintiff assented to the legacy to the defendant
    Where a witness is objected to on the ground ofh.s bavin» been transported to this country to serve «even year* on a conviction of felony, the party objecting must prove tliat such witness did not serve out the1 seve.ii years, otherwise, he becomes a competent wituess An ejectment cannot be suppoited by the executrix of a will for the recovery of leasehold propet1-If bequeath* d by the will to the defendant, if she executrix is proyed to have assented to such beques»:
    Ejectment. The defendant took general defence, and issue was joined,
    1. Tho plaintiff offered in evidence at the trial, two Proprietary leases executed by the agents of the Proprietary to tViilmm Cole. He also gave in evidence the will of IfUliam Cole, dated the i 8th of January 1709, appniníkir Súary Cr.k, the lessor of the plaintiff, his expeuinx, to whom letters were granted, (the oilier executors named in the will not acting, though there was no legal renunciation by them.) .By the will, the testator devised to the defendant one of the leasehold estates, and to Joseph Cole he devised the other. The property was confiscated, and the defendant purchased the fee of the state of Maryland, and obtained a grant. Both the lessor of the plaintiff, and the defendant, resided on the land until the year 1802, when the lessor of the plaintiff was forcibly turned out of possession. Joseph Cole, to whom one of the leasehold estates had been devised by the will, and against whom an ejectment by the present plaintiff was depending in this court for the said land, was offered as a witness for the defendant, but was objected to by the plaintiff.
    A person convicted in Great Britain of felony, and sent to this country to serve seven years, is presumed to have served his time out, and thereby worked the state’s pardon, and be® comes a competent witness, unless -.it is proved that he did not serve seven years.
    If an executiis. assented to a bequest of a leasehold estate, and gase up possession, she cannot support an ejectment for such estate, although she continued to live with the legatee upon the estate alter such assent.
    Chase, Ch. J. if it appears from the examination of .a witness that he is interested, the court will direct the jury not to#regard the testimony. This can be done after a witness lias been previously sworn on the -voir dire. But the court do not know that tlie authorities go so far as to say they can do so, if it appears from the testimony of other witnesses, that such witness is interested, the party having resorted to the mode of swearing the witness on the voir dire, 
      
    
    This witness is called to prove the assent of the executrix to a separate legacy to the defendant. The court think he is a good witness for that purpose.
    2. Thomas Cooper was also called as a witness by the defendant. But was objected to, and the plaintiff’s attorney produced one of the record books of the general court office, in which is recorded a certificate from London, certifying that Thomas Cooper, amongst others convicted of felonies, was sent to this country to serve seven years.
    
      
      
         See 10 Mod. 193. Ambler, 593.
    
   Chase, Ch. J,

The' plaintiff must prove that Thomas Cooper did not serve seven years. The presumption is that he did, and doing so, works the state’s pardon, and he becomes a competent witness,

The court arc also of opinion, that if the jury be jievo from the evidence that the lessor of the plaintiff did assent to the legacy, and gave up possession to the defendant, though she lived with him, the plaintiff cannot support this action.

Verdict and judgment for the Defendant,

Martin, (Attorney General,) and Scott, for the Plaintiff.

Hollingsworth, for the Defendant. 
      
      
         See 2 Harr. & McHen. 120. 378,
     