
    GENERAL COURT,
    MAY TERM, 1798.
    Weems’s Lessee vs. Disney.
    Ejectment for the following tracts of land, to wit: Dinah Ford’s Beaver Dam, Ford’s Folly, IHHington, apd Loch Eden, all lying in Anne-Arundel county. Defence taken on warrant, and non mil. pleaded. Plots were made and returned.
    Birds or Exceptions.
    1. In the trial of this cause the defendant, by his counsel, produced and offered to swear a witness to che jury, to prove that the surveyor of Anne-Arundel county run a certain lino or lines of Dinah Ford’s Beaver Dam, and that the father of the lessor of the plaintiff, and under whom the plaintiff claims on such lines, made certain declarations as to the boundaries or termination thereof; and because the witness stated that the same running was at the time of tiie execution of a commission from Ainie.Arumlel county court, it was objected on the part of tiie plaintiff that no sue!» evidence was admissible, unless tiie defendant produced tiie said commission.
    Thje Court, Chase J. 
      
       was of opinion, that the testimony was legal and proper, and ought to go to tha jury. The plaintiff excepted to this opinion.
    2. The defendant, by ids counsel, produced the original depositions annexed to an original commission, taken out of Anne-Arundel county court by the deferídant, and by him returned to the said court annexed to the said commission, and there recordedj which said, commission issued on tiie 7th of February 1791, in virtue of the act, entitled, “.An act for marking and bounding lands,” passed at November session 1786, on the petition of James Disney for the marking and bounding two tracts of land in tiie said county, to wit: One tract originally called Millington but now The Golden Valley, and the other, part of a tract called Pascal’s Chance. T^e said commission was directed to Joseph Galloway, John Thomas, Rickard Harwood, junior, Thomas Tillará, and Samuel Harrison. After tiie oaths required by Jaw were duly administered to tiie commissioners, as certified on the commission by the justice, &c. who administered them, tiie following return was made by the commissioners, viz. “Whereas, by a commission granted captain James Disney, by the worshipful justices of Anne-Arundel county court, for the purpose of marking and bounding two tracts of land situate in tiie said county, one called Pascal’s Chapee, the other called Millington, or The Golden Valley, Joseph Galloway, John Thomas, Richard Harwood, junior, Thomas Tillará, and Samuel Harrison, were nominated and appointed commissioners to adjust and settle tiie location thereof. We the subscribers, being duly qualified in the words of the act of assembly, and agreeable to the annexed commission having given the necessary previous notice prescribed and directed by the said act of assembly, of the appointed time for onr. meeting on the said lands, and having adjourned from time to time, until the 11th day of April 1791, for the purpose of procuring ail such testimony as should be produced to us, and having reduced the same to writing, do make our return as follows, to wit: Beginning for Millington or The Golden Valley, where originally stood abounded pock hickory, being the third boundary of a tract of land, formerly granted to a certain Thomas Ford, called Byanah Ford’s Beaver Bams 
      and now in possession of John Weems, esquire, of Calvert county, and where we have, by agreement and con-sen{. 0f (|iC saj¿ John Weems and captain James Disney, parties to the two tracts of land aforesaid, this day planted a stone to the eastvvaid of the Beaver Dam Branch, and near a large and ancient white oak, and a few yards to the eastward thereof on the side of a hill running from thence,” &c. “which said location, courses, metes and bounds, we have impartially and upon due consideration established as most agreeable to the original location thereof; and we do return to the worshipful court the depositions and the commission aforesaid hereunto annexed. As witness our hands and seals this 25th day of April 1791.” [¿Signed and sealed by the Jive commissioners.] Then follow tiie depositions annexed to the commission and return.
    The defendant then proved by a witness, Thomas Tillará, that the aforesaid depositions were by him the said witness, truly written down from the declarations of the several witnesses, whose depositions arc thereby purported to be taken; and that the said depositions were sworn to by the said witnesses, before Richard Ear-wood, a justice of the peace for Anne-Arundel county, duly commissioned and sworn, which was proved by the said Harwood; and that John Weems, father of the lessor of the plaintiff, and under whom he makes title, was present. The defendant offered to read to the jury, the depositions aforesaid of such of the said witnesses as were dead, as testimony admissible to prove the boundaries of Millington and Dinah Ford’s Reaver Dam, without producing or reading the commission or the proceedings thereon,
    The Court, (Chase, J.) was of opinion, that the depositions were evidence as the declarations or hearsay of persons not now living.
    The depositions of Joseph Crandel, Thomas Crandel and Benjamin Bailee ¿iherbnt, who were proved to be dead, were accordingly, for the purpose aforesaid, read to the jury. The plaintiff excepted.
    3, The defendant by his counsel, brought into court the original depositions which had been annexed to an original commission issued out of Anne-Arundel county court, at the instance of the defendant, to mark and bound a tract of land called Eillington, for which land the defendant hath taken defence in this cause; and also brought into the court-house, and had in his possession, the aforesaid original commission, but did not offer to read the same; and which commission and depositions taken thereon, were recorded among the land records of Anne-Arundel county, being the same as is stated in the preceding bill of exceptions. I11 the return upon which commission, is stated and set forth an agreement, entered into between the defendant and John Weems', under whom the plaintiff claims, establishing and fixing the bounds and locations of the said land called Hillington. And the said commission and return being so brought into court, the plaintiff, by liis counsel, offered to read the said commission and return in evidence to the jury, to prove the agreement and admission of the said defendant as to the location of the said land; to which the defendant, by his counsel, objected, because the said commissioners, by whom the said return was made, were living, and two of them attending as witnesses in court on the trial of the issue in this cause; and because the said return was defective in not shewing the manner in which the commissioners had given the notice required by law to authorise their proceedings.
    The Court, (Chase, J.) was of opinion, that the said commission, and the proceedings thereon, were inadmissible for the said purpose, and refused to let .the same be read in evidence to the jury. The plaintiff excepted.
    
      Key, Mason and Shaaff, for the plaintiff.
    
      Martin, (Attorn 'y General,) Winchester, Johnson and Wilmer, for the defendant.
    
      
      
         Goldtborottgh Ch. J. absent, ar.J Duvall, J. having been c»ncerned as counsel gave no ojinion.
    
   Verdict and judgment for the defendant. The plaintiff appealed to the Court of Appeals — but an agreement having taken place between tne parties, the judgment was affirmed by consent.  