Bladen's Lessee v. Cockey

²³⁴ At February Term, 1771. The Coutt of Appeals reversed the judgment of the Provincial Court as to the last exception. Short notes of points raised at the trial of this cause. Question.

Whether the deposition of Franklin, taken under a rule of the last Court, because he was then sick and unable to attend, shall now berread in evidence, he being able to attend ? Cases cited, 1 Salk. 281. 2 Salk. 690. Comb. 63. 1 Keb. 36. 249. 787. 2 Keb. 13. Gilb.

Eq. Rep. 16. 18. 11 Mod. 210. Trials per Pais, 385, 386. No person can make a bargain and sale, who hath not the actual possession at the time of the sale: if he hath not, then the deed must be sealed upon the land, upon an entry for that purpose, for the entry puts the party grantor into possession, and purges disseisin.

Carter, 161. 2 Inst. 672. 1 Lev. 270, 271, 272. 3 Lev. 312. 387, 388. Cro. Eliz. 483. pi. 19. The following is a note of Samuel Chase, Esquire, then a practising attorney of the Provincial Court: It has been determined that the relation of an escheat grant to the original certificate, shall not defeat mesne lawful grants.

This was the case of Bladen’s- Lessee v. Cockey, (about October, 1766.) The substance of that case was as follows : A tract of, land, called Curse’s Forest, was originally granted to Robert Carse in 1696. It was granted to George Stewart as escheat in 1746. In 1721, the same land was granted to John Cockey, by the name of Cockey’s Folly. The question was whether the grant to Cockey in 1721, was not an elder title than the escheat grant to Dr. Stewart in 1746, under whom Bladen claimed? 3 Lev. 285. 2 Vent. 200.

Cro. yac. 512. 10 Co. 49. ²³⁵ The following opinion was given in the case of Bladen Cockey. D. Dulany's opinion. I must confess that I have great doubts of the propriety in examining the Jurors in the former trial, nor has any instance occurred to me of its ever having been done upon looking into tbe rules of evidence. A former verdict, without doubt, may be offered j but unless the record be produced, if every one of the former Jurors should be ready to testify that such verdict