
    GENERAL COURT,
    MAY TERM, 1790.
    Henry King, jun. against Jeremiah Tarlton and John Bean.
    THIS was a special action on the case, brought in Saint Mary’s County Court, lor erecting a dam and overflowing and drowning land, parts of tracts called Brehon’s Purchase, Beaverdam, and Indian Bridge, lying in Saint Mary’s County, and for diverting an ancient water course.
    At the trial of the cause in th s County Court, five bills of exceptions were taken, by which it appears,
    1st. The defendants, by their counsel, prayed the direction of the Court to the Jury, that to entitle the plaintiff to recover in the present action, he, the plaintiff’, ought to make out a legal title in himself to the tracts of land, or some of them, on which he alleged the injury specified in the decía» ration to have been committed, and that unless he made a title to said tracts of lands, and proved the same, that he, the plaintiff, was not entitled to recover damages in the present action. The Court refused to give the direction prayed for, determining that the possession of the tracts of land, in this cause, was sufficient to entitle the plaintiff to recover, without alleging or proving title in himself.
    The defendants excepted to this opinion.
    2d. The plaintiff, by his counsel, produced and offered to read to the Jury a patent, dated the 9th of May, 1788, for the tract called Indian Bridge, which recites and sets forth that, “ whereas the commissioners for confiscated British property were, by law, vested with full power and authority, and were directed to sell and dispose of certain manors in this state ; in pursuance whereof, the said commissioners exposed the same to sale; and a certain Henry King, of Saint Mary’s County, became the purchaser of Mill Manor, in the said County; and whereas a certificate of survey of the said part hath been returned to the Western Shore land-office, containing forty-three acres, called by the name ol Indian Bridge; and it appearing, by a receipt endorsed on the said certificate, that the purchase-money hath been paid to the treasurer of the Western Shore, the state of Maryland doth hereby grant unto him, the said Henry King, the said tract or parcel of land called Indian Bridge, lying in Saint Mary’s County, beginning,” Stc. “ containing forty-three acres of land, according to the survey thereof, made in August, 1783, as appears by the certificate thereof returned to the said land-office,” &c.; which said patent the plaintiff produced as evidence of the running of certain lines of a certain tract ®f land called Indian Bridge, with the courses and, distances thereof, as located by the plaintiff, on the plots; filed in the cause; to which the defendants, by their counsel, objected. The Court were of opinion, that the patent should be read to the Jury as evidence; the same containing, in their opinion, a copy of the certificate of Indian Bridge, returned In 1783 to the land-office.
    The defendants excepted to this opinion.
    3d. The plaintiff’s counsel having produced and offered to read to the Jury the above-mentioned patent, as evidence of the running of certain lines of a certain tract of land called Indian Bridge, with the courses and distances thereof, as located by the plaintiff, on the plots filed in the cause ; the defendants, by their counsel, prayed the direction of the Court to the Jury, that the said patent being dated on the 9th of May, 1788, is not evidence to them to prove the running of the lines and courses of Indian Bridge, on or before the 14th of March, 1786, on which day tile writ original in this cause was impetrated. The Court were of opinion that such direction was improper, and refused to give the same to the Jury, as prayed for; because they have already given an opinion that the patent should go in evidence to the Jary, so far as it contained a copy of the certificate of Indian Bridge, as returned to the land-office in 1783; and being such a copy of sucR certificate, so returned, it will relate to the running of those lines, when such certificate was return» ed in the year 1783.
    The defendants excepted to this opinion.
    4th. The plaintiff produced the surveyor who located the lands and made the plots in the cause, to prove, that antecedent to the bringing of this action the water flowed within the lines of Brehon’s Purchase, as located on the part of the plaintiff as his pretensions, the said surveyor not having been sworn as a witness on the said survey; to which the defendants, by their counsel, objected. The Court were of ©pinion, and did admit the said witness to give evidence of any overflowing antecedent to the bringing of this action, of his own knowledge on any part of Brehon’s Purchase, as located for the plaintiff.
    The defendants excepted to this opinion.
    5th. The defendants, by their counsel, produced a certain 
      Thomas Cecil as a witness, to establish the running of cer» tain lines of a tract of land called Brehords Purchase, to wit, the first, second, third, and fourth lines of the said tract, as located on the plot for illustration by the defendant. The plaintiff’s counsel objected to the swearing of the said Cecil, because he claimed a tract of land called Cecil’s Delight, which appears, by original papers, proved as such in this pause, by Benjamin Morgan, the person appointed, and who actually made the survey and returned the said papers to the commissioners for confiscated property; and also proved by the surveyor of the County, to whom they were delivered, as original papers by the late intendant of the revenue, for the purpose of resurveying Woolsey Manor; by which papers it appears, that the said Cecil’s land called for and run with the lines above mentioned, reversing their courses. It was also proved that the said Cecil did purchase the land' called Cecil’s Delight of the state of Maryland, at a certain sum per acre; and that he was desirous of including within Cecil’s Delight all the land he could at the time of the survey; that the purchase was, in the opinion of the witness, on the whole, a good one, and he would give more for it; but that the lands, the location of which the witness was called to establish, upon the lines was of inferior quality to the rest of the purchase, and, in his opinion, was not worth the sum per acre that Cecil had agreed to pay for it. It was admitted, that Cecil was called by the defendants to prove the location of Brehords Purchase, as located by him for illustration, and of course to lessen the quantity of acres of Cecil’s land.
   The Court

were of opinion that the said Cecil was a com» ietent witness, and directed him to he sworn.

The plaintiff excepted to this opinion.

Yerdipt and judgment thereon for the defendants.

Thomas and Key, for the appellant.

Stone and Merrick, for the appellees.

The plaintiff appealed to the General Court, which Court affirmed the judgment of the County Court.  