
    William Ralston against James Cummins.
    No new trial where justice has been done, on a technical .exception to the form of action.
    Motion for a new trial. The cause had been tried at the sittings on the 14th March last, and the plaintiff had recovered 521i. 8s. 9d, damages on the following facts:
    On the 20th May 1779, the defendant and his wife conveyed by deed to the plaintiff a tract of 60 acres of land, part of a larger tract of 300 acres, situate in Cecil county, in Maryland, in consideration of 90001. with covenant of general warranty.
    This deed was acknowledged on the 4th July following, before M’Kean, C. J., but the same was irregular, as the law of that state of November 1766, cap. 14, § 4, directs that the deeds of non-residents for lands there, shall be acknowledged before a judge of the general court, or two justices.
    On the 14th October 1783, the defendant conveyed to Hugh Eulton the same lands, in consideration of 3501. by another deed, with covenants that he was seized of a good title, and would warrant the same against all claims; and in case the now plaintiff should institute a suit therefor, that he would pay all expenses and costs.
    This last- deed was regularly acknowledged before two justices in Maryland, as the law requires.
    The plaintiff commenced his ejectment in Maryland, against Eulton, which came on to trial on the 12th October 1789, when a verdict passed against him for the 60 acres, and judgment was thereupon rendered for the defendant. He afterwards brought the present suit in indebitatus assumpsit, to recover damages for the money he had thus been defrauded of.
    
      The defendant’s counsel now insisted, that convenant should have been brought on the express warranty, and that case would not lie, and were about to cite cases:
    But the court interrupted them, and said the defendant applied to the discretion of the court with a bad grace after so gross a fraud. What merit can he lay before us % None. Has injustice been done to him ? No. We will not determine the legal question now started, and whatever our sentiments may be thereon, we will not turn the plaintiff round to a new form of action, on a mere technical exception.
    Messrs. M. Levy and J. B. M‘Kean, pro quer.
    
    Messrs. Ingersoll and Porter, pro def.
    
   Motion denied.  