Doe d. Smith v. Fleming. - This was an action of ejectment brought to recover a farm described in the declaration as being in the County of Cumberland.  Our Reporter not being in Court when the plaintiffs case was stated, we are unable to detail the facts which he proposed to prove, which however is of little importance at present, as the case went off upon a point of law.

A notice to produce the deed of grant of the locus in quo having been proved, and some slight evidence given of its loss, it was endeavoured to give secondary evidence of the grant by producing the record from the Colonial Secretary's Office.  Mr. Chambers was put into the box to prove the handwriting of Major Goulburn, and the first objection taken by Dr. Wardell was, that Mr. Chambers having never seen Major Goulburn write, but only having corresponded with him, and it being within the power of plaintiff to call witnesses who had seen him write, he was bound to do so, such being the best evidence to prove the handwriting of an absent party.

Mr. Justice Burton ruled that the evidence was admissible, he considered the means whereby a witness became acquainted with the handwriting of another, whether from seeing him write, or corresponding with him were of exactly equal force, and that the point did not fall within the rule requiring the best evidence of a fact to be given.

It was then contended by Dr. Wardell that sufficient ground had not been laid for the admission of the admission - there was the very slightest or indeed no proof of the loss of the grant.

Mr. Wentworth urged to the contrary, and it led to the following very important decision of Mr. Justice Burton.

His Honor did not regard this as a case of secondary evidence - the registration of the grant in the Secretary's Office was a record, and of equal value with the grant delivered out to the party entitle to it.  It was like an enrolment which was a record and a counterpart of the original.  His Honor observed that on one of the Circuits he had pointed out to Mr. Phillips, the author of the Treatise on Evidence, what he had considered a mistake of that learned person, in placing enrolments only upon a footing with an office copy, and Mr. Phillips had admitted that it was so, and he believed that the error was corrected in a subsequent edition.

The registration was then read, when it appeared that the land was described as being in the County of Northumberland, the declaration describing it as in Cumberland.

Dr. Wardell took the objection that this was a variance.

Mr. Wentworth urged that this was mere venue, that it had been ruled frequently that it was quite sufficient to state the place as in the Colony of New South Wales, and that the County was a surplusage; that an Act of Parliament had pointed out the mode in which the Colony was to be divided into Counties and Parishes, which had not been done, and consequently there was no legal Counties in existence.

Dr. Wardell replied, but was stopped by Mr. Burton, who was too clearly of opinion that this was a fatal variance to admit of his hesitating in nonsuiting the plaintiff.  This was matter of local description, not of mere venue, and the cases were quite indisputable on the subject.  -  Plaintiff nonsuited.

Counsel for plaintiff W. C. Wentworth and C. H. Chambers, for the defendant Dr. Wardell.