Peery's Lessee v. Burton — 1 Del. Cas. 28

Majority

p. 28

AARON PEERY’S LESSEE v. JOSEPH BURTON.

Supreme Court.

October, 1794.

Wilson's Red Book, 25.^[1]

p. 29

Bayard for defendant.

The jury now can find nothing out of the evidence though they formerly could, but must give their knowledge in evidence in open court. Defendant confesses all the facts so that there is no fact left for the jury. That the court can decide always upon the operation of evidence, and cited 3 Term memoriter as to letters etc.

Miller for plaintiff.

No case is shown to prove that plaintiff must join in demurrer to paroi evidence. We think we have proved a twenty years possession.

Duller in his Nisi Prius is to be considered as having collected the law upon the subject. I take up the law as he did then; I know of no alteration. Twenty years possession is a title. Here was evidence of possession which related to an early period. I wished to know if there was any objection to plaintiff’s claim of the possession. We think there is a claim of the possession that neither party can claim, but the question is if the former possession can be tacked to the latter. I think not. And that therefore plaintiff has given no evidence of a twenty years’ possession. There is nothing upon the paroi evidence • that the jury can find. Supposing the fact to be admitted, there remains nothing for the jury to exercise their special knowledge upon. Therefore I think notwithstanding the paroi evidence the defendant may properly demur, for there is

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■no such doubt upon the paroi evidence as to prevent the defendant to demur.

Conditional verdict taken, and jury discharged.