Leech versus Armitage.*

THIS was an action of trespass for cutting trees. The defendant pleaded Liberum Tenementum; and the plaintiff replied Liberum Tenementum suum absque hoc, &c. The trial came on at Nisi Prius, in Montgomery County, before the Chief Justice, and Judge Shippen, on the 28th April, 1791.

A preliminary question arising, who should open the causeit was decided by the Court, after argument, that the proof of the issue lay upon the defendant : and that he, therefore, ought to begin. The Chief Justice added, that in all cases, the party who is first in the affirmative ought regularly to open; and referred to Forsythe versus Jones, tried at Nisi Prius, in Chester County, where the same point was ruled.

,. On the trial of the caufe, the defendant gave in evidence the record of a trial, verdi£t, and judgment, between the fame parties, at a former period 5 to wit, in the year 1755. The" plaintiff thereupon offered to prove by a witnefs, who was pre-fent at the former trial, that the evidence, now given by the' plaintiff, was not then produced, nor difeovered : But the proof was objedled to, and theCourt refufed to admit it..

By the Court:

—It would be too dangerous to trust to the recollection of a witness in so old a transaction, in order to shake the strength of the evidence, which the record imports.

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