
    Boreing’s Lessee vs. Singery.
    (}?'#!»,li book -oT surveys, anti h*i parol adnú cod bj tij& ci.ur:, ni »ii action <>¿v*»*eit» incut, Us unapt'»» tint evii'ciur* -†<# prov; thtt a t.iíicato oí' siii’Vuy ivuirnid to ih* land office, \v.\s forged
    The genor&ÜL court ívfostd ,t-a th tet the ,tur>, that it is not con,* pi tout in u couu •of mir to }>iye i.vi* donee* to the jurj, hr to <>o itno any paiOt vx.iiiituatio^ ot Uj.*s\HMjoiM.r bis books, .0 >acate a g’r-tnt.oc to prove thu-t ¡iu- idm tiíteau* of tur icy returned tv» tin-* bmd offiui as 1* fmuubit'on It,»1* ¡h?? g'mnt, tvns fo-tern? vr imtfbik'nt, ¿inri not naule out by him or his audit/*
    The pi'opviriui-y iDsti'.,cu.ns, re* qmvmg a stmey to t>f made of reserved l.nnls, &-c« icad ui evidence,,
    Depositions returned under n commission issued i« 2k‘nn'tgfy'umaf to take te-dmoiiy in the cause, ivere not pennicced i>y the £em*i\d court Vo bo read in e\ ide?ico, it not appearing;,b\ Uwj 1 tv turn of the com* mis.'ivners, that tiny had g'ivui* any notice, o* that proper no-ice h.ui been gn ew.
    Depositions si* tan lar.) takui wi m ju t pi.rn.utid to be nad in e\ j. d- nee* althoujVii i-mi'id m cu-deuce by the op pootfci
    Ímiror to the Genera] Court, in this case (here was a writ oí procedendo from the lafe court of appeals, directing a new trial of an action of ejectment, (which Had been tried in the general court at October term 1799;) for a tract of land called Borah) g's Habitation Hock, lying in Baltimore county, containing 300 acres of land. [See 4 Harr, fy 3f‘Hai. 398.(| The defendant took defence on warrant for all that part of Bor ting's Habitation Ro6k, which is included in Singery's Trouting Streams, according to his locations thereof on the plots returned in the cause.
    1. The plaintiff, at the new trial at October tefra 1805, retid iu evidence the patent of Barring's Habitation Hock, .granted to Ezekiel Boreing, the lessor of the plaintiff', on the 24th of April 1795, for 308 acres of land more or Ies.-'. The defendant produced a grant issued to him the 20th of April ¡775, for the tract called Singery's Training Streams, for which he took defence. The plaintiff then produced the original Certificate out of (he land office for the land called Singery's 'Fronting Streams, slated the. SOth of September 1770; and gave evidence by James Calder, that ho was surveyor of Baltimore county when the original certificate was returned to the land office, upon which the, patent for Singery's Fronting Streams was granted; and that the certificate, on which the patent issued, was not made cut or signed by him, or by his authority; that the original certificate, as entered upon his book of survevrs, contained no call to the beginning trees of the tract of land called Petticoat's Loose, nor was there any such call in the certificate as made out by him, or under his authority. That the certificate, as made, out by him to be returned to the land office, described the land called Singery's 'Fronting Streams as ‘‘beginning at two bounded white, oaks standing between two barren hills at the and of the last line of a tract oí hind called Mcrryman s Mountain, (included,) and about west nine perches from George's Run, and running thence,”&e. (nineteen courses without any calls,) “and then with a straight line to the beginning, containing (78 acres,” he. as taken from his original book of surveys. The plaintiff produced this book hi court, and offered to read it to the jury. Re further .rfsífiis'-safl f/i n**nvp hv flfildfiQ' tl>Di hr* hfiíl ¿dYnminívi jht» orí.5 • ■ ginál certificate of Singery's Trouting Stredms, with the entry on his book, before be delivered and signed the original certificate for the land office. By which evidence the plaintiff offered to prove to the jury, that the certificate of Singery's Trouting Streams, returned to the land office, and on which the patent issued', was a forgery, and could not operate' to pass more land than vfras contained in the certificate signed by Colder. The defendant then offered evidence', that no'other certificate of Singery's Trouting Streams, except the one on which the patent issued to the. defendant, was ever returned to the land office. He also offered in evidence, the certificate returned to the land office, with the endorsements thereon, and the aforesaid patent. [/SVe them set out in 4 Aarr. 4" MlHeri4 398/]' He also offered evidence, that Cakler never did make out a certificate' for Singery's Trouting Streams, from the entry made in his book; and to prove that a certificate for Singery's Trouting Streams never was examined with the said entry, he offered in evidence, by Caller, that he did not begin to survey lands in the reserves of Baltimore county before (he 24th of November UTO, and that he would not have inserted a certificate in his book of an elder date than the 24th of November 1770, if he had taken notice of such 8 date. He also offered to prove, that there are- certificates of surveys, contained in the said book, bearing date since the 4th of July 1776. He also offered in evidence the proprietary instructions to Bobert Eden, Daniel Dulany, and John Morion Jordan, dated the 30th of June 1769
      
      , requiring that they should forthwith, if necessary, cause an exact survey and return to be made of the lord proprietary’s reserved lands and mapors, &c. lie also offered evidence, that Caller was appointed to survey the lands in the instructions mentioned; and to prove that Caller's authority ceased before (he 4(h of July 1776, offered-in evidence the declaration of independence. He also offered, ill evidence, that the following part of the entry in the said book, and no more, is in the handwriting of Caller, towitr “Amended for Christian Singery, a tract beginning at two bounded white oaks, standing between two barren lulls at the end of the last line of a tract called Merryman's Mountain, (included,) and about west nine perches from George's 
      Run, and running then N 87 W 22 ps. S 47 W 96 ps.”' He also offered in evidence, by Colder, that the latter part of the said entry is not in his handwriting, and that he did not know in whose handwriting it. was, but supposed it to be the handwriting of a man named Norris, one of his deputies. That the land included in the courses taken from the said entiy, is in the reserves of Baltimore county; and that the entry made in his book, was made after the 4th of April 1775, but on what day he knew not. The plaintiff' further offered evidence, by Calder, that the reason he recorded a certificate in his book, bearing date the 30th of September 1770, was from an oversight in his not particularly attending to the date of the certificate, and that he would have Corrected the erroneous date had it particularly occurred to him. That he had a number of deputies, who were authorised by him to record certificates in his book, after they had been examined and signed by him. Tiie defendant objected to the plaintiff giving any of the evidence offered by him, for the purpose for which it wag offered,
    
      Ehaajf, for live Defendant,
    stated two objections to this testimony' — 4. Because the book was made without authority, and the entry was not made by Calder himself, nor examined by him, and from his own proof was not made until after the patent issued to the defendant. 2. Because it is contrary to the grant, and the grant cannot be held void in this court. lie cited Twyne’s case, 3 Coke, 80. 23 Vin. Ab. 519, 527. 2 Com. Dig. 575. 2 Bac. Ab. 602, Lane, 105, (argt.) Upton vs. Basset, Cro. Eliz. 445. Bull. N. P. 260 Stat. 27 Eliz. ch. 4. Carvill's Lessee vs. Griffith, 1 Harr. & M'Hen. 297. Maxwells Lessee vs. Lloyd, 1 Harr, & Apilen. 212. Spalding’s Lessee vs. Reeder, 1 Harr. & M'Hen. 137. Hammond, et al. Lessee vs. Sheredine, 4 Harr. & M'Hen. 420; and Webb’s Lessee vs. Beard, 1 Harr. & Johns. 349.
    
      Martin, (Attorney-General,) and 71 Buchanan, for the Plaintiff,
    were stopped by the court,
    Chask, Ch. J, (sitting alone.) This question, he said, bad already been decided in this case at the former trial at October term 1799. when there was a fuller court. He considered himself bound by that decision, even if he thought differently now. He therefore permitted the evidence to be read to the jury, being of opinion that the fact, whether the certificate was forged or not, was a material fact in this cause, and that the evidence offered by the plaintiff was competent and admissible evidence to prove that fact; and that the credit of the witness, and of the surveyor’s book referred to, were subjects within the province of the jury, and proper for their consideration upon the whole of the case. The defendant excepted.
    o.. The defendant then, in addition to the facts before stated, gave in evidence, that the locations on the plots made on the part of the defendant are true, as by him located, and contained truly the land granted to him in 1775. And oifered evidence to prove, that the land included in the grant comprehends the land granted to the lessor of the plaintiff, called Eoreing,s Habitation Bock, for which this suit is bto'ught. He also read in evidence an office copy of the record and proceedings then depending in the court of chancery, between the lessor of the present plaintiff and the defendant, on a bill exhibited expressly to vacate the defendant’s grant. And read in evidence the records and proceedings in the council chamber, by which a commission was created for the purpose of selling certain lands of the then Lord Proprietary of Maryland, which is herein before referred to, dated the 30th of June 1769; and proved, that the lands claimed by him in virtue of his patent, were claimed by him under a purchase from the persons acting under tliat'commission, and were part of the.private estate of the Proprietary, and not liable to be affected by the ordinary proceedings and usual practice of the lapd office. He also proved that John Clapham, whose name was to the receipt of the consideration money endorsed on the certificate of the land called Singery's Trouting Streams, stating that he had, on the 19th of April 1775, received of the defendant the sum of £71 4 0 sterling fQr the purchase money of that land, was then acting .as clerk to the said commission. The defendant then ■ prayed the opinion and direction of the court to the jury“3 that it is not competent in a court of law for the plaintiff, , under the circumstances of this case, to give any evidence, or go into any parol examination of the surveyor, or his books, to vacate the defendant’s grant, or to prove that the certificate returned to the land office, as a foundation for that grant, was forged or fraudulent, and not made out by him or his authority.
    Chase, Ch. J. refused to. give the direction prayed. The defendant excepted.
    8. The defendant then offered in evidence the commission which issued at his instance out of this court, on the 13th of September 1799, to Huntingdon county, in the state of Pennsylvania, to take the testimony of witnesses in this cause, with the depositions taken under it. The return to this commission, after setting forth the meeting of the commissioners, and their having taken the deposition of a witness in answer to certain interrogatories, concludes by the commissioners certifying, that “the foregoing interrogatories were taken at the instance of Joshua Stevenson, on his asserting that the plaintiff had knowledge of his coming, and intention of having this commission executed. ” To the admissibility of this evidence,
    
      T. Buchanan, for the Plaintiff,
    objected, because there had not been legal notice to the plaintiff of the timo of executing the commission.,
    
      Key, for the Defendant,
    cited Norwood vs. Owings, (ante 98,where this court decided that notice was not necessary in executing foreign commissions.
    Chase, Ch. J. This case is not similar to that of Nor» wood vs. Owings. In that case the commissioners certified that they had given notice; but in this case it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given. 'Phe court are of opinion that the commission and return are not legal evidence, nor any part thereof. The defendant excepted.
    4. The plaintiff then offered to read in evidence the commission, with the testimony returned with it, which bad been executed and returned at the instance of the defendant, under a commission issued from this court to Fayette county in Pennsylvania, on the 14th of March 1798, but which the defendant refused to read. The return is as follows: “In obedience to a commission to us .directed by the hon’bie the judges of the general court. for the western shore of Maryland, we met at the house of James Gregg, in Fayette county, Pennsylvania, on the 1st of October lT'Pff, and after taking the oath directed, ws appointed J. M. clerk, who took the oath directed in the said commission. We then put the following interrogatories unto Daniel Goodwin, of the county aforesaid, being first duly sworn on the Holy Evangely of Almighty God, ■viz.” [Then follow the interrogatories and answers.} ‘‘The foregoing interrogatories were taken at the instance pf Joshua Stevenson, on his asserting that Mr. Cooke, attorney for the plaintiff, had knowledge of his coming, and intention ofhaying this commission executed, and consented thereto. Given under our hands and seals,” &c. Signed and sealed by the commissioners; and certificates that the commissioners and clerk bad taken the oaths annexed to the commission to be by them respectively taken. The plaintiff also offered to read in evidence the deposition of Daniel Goodwin, named in the same commission, who at the former trial attended court, and his deposition taken in the cjty of JLnnapolis on the 23d of May 1 "99, before a justice of the peace, &c. by consent of parties, to be read at the trial of this cause, so far as the same contained legal testimony.
    Chasí;, Cb, J. This commission is liable to the same objection as the other commission, and the court refuse - to admit it to be read, being of opinion that the commission was not legally executed; aud that the deposition taken in Jlnnapolis, by consent of parties, was taken for the purpose of impeaching or counteracting the deposition taken under the commission. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff brought a writ of error to this court.
    The cause was argued on the bill of exceptions taken on the part of the plaintiff, being the last bill of exceptions herein stated, before Buchanan, Nicholson, Gantt, and Earle, J. by
    
      T. Buchanan, for the Plaintiff in error;
    and by
    
      Shaaff, for the Defendant in error.
    
      
      
        Caj Entered in the Council records,, J. ,íí, fofio 241, Sx, '
    
   JUDGMENT AFFIRMED.  