jury under the directon of the court, to determine safely that
a patent was obtained contrary to equity, as well as against
the rules of the land office. He could mention cases where
there have been awarded by himself with strict propriety,
patents, which on examination by a court and jury 20 years
hence, will appear contrary to the rules of the office, and
against equity. They have been awarded on a compromise
between the parties, recommended by himself, not appearing
on record, and where the agreement is not reduced to
writing.
I entreat the honourable court to pardon the freedom I
take in exceeding the bounds allowed to a witness, and in
speaking as chancellor and witness combined.
I trust that either the information I have given by my
answers will be satisfactory, or that it will be concluded that
no other information can be properly obtained from me.
When requested to appear as a witness, I supposed that I
should be examined only respecting the settled rules of the
land office, and that no other object was in view but to obtain
information respecting the law, usages, or practice in the said
office. I ought indeed to have reflected on the nature of
each question, and the result of my answer, before I
answered it. When I asked leave to retire, in order that I might
better answer the interrogatories proposed, it had struck me
that probably several of the interrogatories were improper to
be answered at all, and that I had improperly given answers
already. It must strike the court that if I were obliged to
answer every interrogatory the counsel might propose, it
would be in their power to obtain my opinion on points not
relevant to the cause, but of importance in cases depending
in the land office or elsewhere, and that I might commit
myself by premature opinions. I recollect that whilst I was
before the court, the chief justice suggested, as I understood,
that it ought to be at the chancellor's discretion to answer or
not answer interrogatories proposed to him. This idea was
certainly just, and becoming the chief justice, and it ought to
have struck me before. It cannot surely be in the power of
parties or their counsel, by summoning a judge of any court
whatever as a witness, to draw from him his legal opinion on
points of importance to causes depending before him.
Perhaps I have already answered too fully to the interrogatories
proposed:¾
But, now, being fully on my guard, which I was
not when I appeared before the court in a most unusual
situation on Saturday last, I beg leave to suggest to the court
that a witness, in every case whatever, is bound to depose
only as to matters of fact. What has heretofore been
settled as a rule in the land office, or what decision, heretofore,
has been given in that office, may be properly considered
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