You may make use of this plot as to the fact spoken of by Collins, but for no other purpose.
Defendant’s counsel offered Deputy Surveyor’s books of Sussex, liber A. to show that in 1729 surveyors would only survey the lands contiguous to the owner of the warrant and would leave lands, to suit the convenience of others who had then no warrants, which might have been surveyed under the warrants then in their hands.
Ridgély objected the survey particularly alluded to and offered was made in 1729 by Robert Shankland under a warrant granted to Henry Draper, but the surveyor only gave him 65 acres of the vacancy and surveyed 178 to Alexander Draper and 27 acres to Thomas Davis. This fact is irrelevant, for the jury are only *210to find the date etc. of this survey. This book, though evidence when competent, yet is improper on these issues.
Bayard. 1 Esp. 43. A record, though between the same parties, is not evidence because not conclusive to the fact. This book is improper evidence under these issues.
Wilson. The case cited only shows that evidence of a fact in itself irrelevant is inadmissible, but this book is offered to prove a practice which must have been deviated from if plaintiffs’ survey is established.
Johns, C. J.This book is produced to prove a practice and may be read.
Wilson wished to ask a witness, who had been sworn, a question that had become necessary by the arguments.
Ridgely mentioned the case of Hudson and Townsend, which he said had been confirmed by a case decided in Kent.
Wilson denied the case of Hudson v. Townsend to be law and thought the practice otherwise in England. That case had been partly overruled by the same court. The practice in Maryland is constantly otherwise.
Johns, C. J.Such practice would be highly inconvenient and improper. I do not recollect anything of a contrary practice in the books.