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 MD Court of Appeals of Maryland
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32 of 37 DOCUMENTS 

Benedict Calvert's Lessee against Sir Robert Eden et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 279; 1789 Md. LEXIS 5 

May, 1789, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for Anne Arundel Manor, in the county of Anne Arundel.

The ejectment was brought to April term, 1773, and a special verdict was found at September term, 1774. The following is an abstract, to wit.

That King Charles the 1st. granted the province of Maryland to Cecilius Calvert, his heirs and assigns, which is inserted in haec verba.

That Cecilius Calvert entered by virtue of the grant, and was seised as the law requires, and erected a Court of Chancery and Provincial Court, and that he and his successors have exercised the royal rights flowing from the said grant, and been adjudged to have them by the Courts of Law.

That the proprietors have had large bodies of land surveyed, called Manors, and certificates thereof returned and recorded in the land-office. That these lands have been generally let out for life or years by the proprietors' agents, under yearly rents, payable to the proprietors and their heirs.

That the aforesaid Cecilius Calvert directed Jerome White his surveyor-general, in 1669, to lay out Anne Arundel Manor, which was done, and a certificate returned and recorded in the land-office.

That the said Cecilius Calvert in 1675 died,  [**2]  seised of the said province and Manor, leaving Charles Calvert, afterwards Baron of Baltimore, his son and heir, who entered into the same, and was seised as the law requires.

That in 1698, Clement Hill, surveyor-general of the Western Shore, in pursuance of an order from the proprietors' agent, resurveyed the said Manor, a certificate of which was returned and recorded in the land-office.

That the said Charles Lord Baltimore, having a son named Benedict, his heir apparent, on the 31st of December, 1698, being then seised of the said province and Manor, according to the resurvey, executed an indenture between the said Charles Lord Baltimore, and his son the said Benedict, of the first part; the Earl of Litchfield, and his daughter Lady Charlotte Lee, of the second part; and the Duke of Northumberland, the Earl of Lindsay, Roger North, Sir Henry Lawson and Edmond Somerset, of the third part. This indenture specifies, that in consequence of a marriage between the said Benedict Calvert and Lady Charlotte Lee, and for other considerations therein mentioned, the Province of Maryland was settled to the use of the said Duke of Northumberland, Earl of Lindsay and Roger North, their [**3]  executors, administrators and assigns, for 99 years, upon the trusts therein mentioned, and which are since determined. Remainder to the use of Lord Charles Baltimore for life, without impeachment of waste. Remainder to the use of the said Benedict Calvert for life, without impeachment of waste. Remainder to the use of Sir Henry Lawson and Edmond Somerset and their heirs, during the life of the said Benedict Calvert, upon trust, to preserve contingent remainders. Remainder to the use of the 1st, 2d, 3d, 4th, 5th, and all other sons of the bodies of the said Benedict Calvert and Lady Charlotte Lee, in tail male; and to the use of any child Lady Charlotte should be enceinte with, &c. Remainder to the use of the Duke of Northumberland, Earl of Lindsay, Roger North, Sir Henry Lawson and Edmond Somerset, their executors, administrators and assigns, for 500 years, upon the trusts herein after expressed. Remainder to Charles Lord Baltimore, in fee.

A power is given to Lord Charles during his life, and after his death to the said Benedict Calvert, to grant lands in fee in Maryland, reserving the usual quit-rents; also to lease manors for 21 years or three lives, reserving the usual rents [**4]  in possession.

That on the 16th of January, 1699, Charles Lord Baltimore, granted parcel of the said manor in fee, to Samuel Thomas, which he and those claiming under him, have held under the great seal.

That between 1699 and 1750, divers other grants were made by the said Lord Charles, or by his grandson the late Lord Charles, similar to the above, for other parts of the manor, and a quit-rent reserved of 4s. sterling per hundred acres, and similar to these hereafter mentioned, to be made by Lord Frederick.

The Jury find not guilty as to the lands contained in the grants, antecedent to the death of the second Lord Charles.

That the first Lord Charles had issue male of his body, the said Benedict Calvert only, who died in 1714.

That the first Lord Charles died in 1715.

That Benedict Calvert left issue male of the said marriage, Charles, his son and heir, afterwards Lord Baltimore, and proprietor of Maryland, Benedict, Leonard, Edward and Cecilius, which said Benedict, Leonard, Edward and Cecilius, are since dead without issue.

That before the demise in the declaration, the trusts in the said indenture for 99 years had determined.

That Charles [**5]  Lord Baltimore, son of Benedict, entered into the said province and manor, (except the parcels granted by his grandfather and himself,) and was seised thereof as the law requires; and being so seised, on the 11th of July, 1730, executed an indenture between the said Charles Lord Baltimore of the first part; Sir Theodore Jansen and Mary Jansen his daughter of the second part; and Benedict Leonard Calvert, Cecil Calvert, Stephen Theodore Jansen, and William Jansen, of the third part, to the uses following:

To the use of the said Charles Lord Baltimore, and his assigns for life. Remainder to the trustee for his life, to preserve contingent remainders; and remainder to trustees and their heirs, in trust, that Lady Mary shall receive 800l. annually. Remainder to the use of the first and other sons of the said Charles Lord Baltimore and Mary Jansen his intended wife, successively in tail male. Remainder to the use of the said Charles Lord Baltimore, in fee.

A trust term for 1,000 years, to raise 5,000l. for each of the daughters' portions of the said marriage, to be paid at 21, or marriage.

A power for Lord Baltimore to grant lands in Maryland in fee, reserving the usual quit-rents.  [**6]  

A power to lease the manor lands for 21 years, or three lives in possession, reserving usual rents.

A power to Lord Baltimore to grant offices in Maryland.

A covenant by Lord Baltimore to levy a fine in the C. P. of the province, &c. to the uses in the indenture.

The Jury find the act for enrolment of conveyances, passed 10th May, 1692, and that the same was in force when the indenture of the 31st December, 1698, was executed; and that the same was not acknowledged nor recorded.

They find the act of 1715, c. 47. for enrolling conveyances, and the repealing law passed that session, c. 49. and that the indenture of the 11th July, 1730, was not acknowledged or recorded.

They find the act of 1719, c. 16. for declaring what laws were repealed by the act of 1715, c. 49.

That Charles Lord Baltimore had issue by Mary Jansen, an only son named Frederick, late lord proprietor, and two daughters, Louisa, born in 17--, and married to John Browning, and Caroline, born in 17--, who married Robert Eden.

That Charles Lord Baltimore, by his will, dated the 17th November, 1750, devised the province of Maryland, except, &c. in trust, to the use of his son Frederick,  [**7]  for life.

Remainder to trustees, during the life of his son Frederick, to preserve contingent remainders.

Remainder to the sons of his body successively, in tail male.

Remainder to the use of the daughters of his body in tail general, with cross remainders to a surviving or only daughter, in tail general.

Remainder to the use of his eldest daughter Louisa in fee, subject to 20,000l. for Caroline, his second daughter, payable at 21, or marriage, and if she died under 21, and without being married, the 20,000l. to sink into his estate.

That Charles Lord Baltimore had a natural son named Benedict Calvert; and being seised of the province, and Anne Arundel Manor, (except the parts granted as aforesaid,) as the law requires, on the 17th of November, 1750, by his will, devised the said manor to Benjamin Calvert, Esq. his heirs and assigns for ever.

That the said Charles Lord Baltimore died seised, as last aforesaid, on the 23d of April, 1751.

That Benjamin Calvert in the will mentioned, and Benedict Calvert, the lessor of the plaintiff, is one and the same person.

That Charles Lord Baltimore left issue, Frederick, his only son and heir, who after the [**8]  death of his father became lord proprietor, and entered into the said province, and was seised thereof as the law requires.

His marriage settlement with Lady Diana Egerton, 9th March, 1753, subjected expressly to the trusts for payment of Lady Baltimore's jointure.

That being so seised, on the 1st January, 1761, he executed an indenture between the said Frederick Lord Baltimore of the first part; Cecil Calvert his uncle, of the second part; and Thomas Bennett and William Sharpe, of the third part.

This indenture recites the articles of marriage, executed by Frederick Lord Baltimore, on the 9th March, 1753, on his marriage with Lady Diana Egerton, and that she was dead without issue.

It recites also, that for docking and extinguishing all estates-tail, and remainders, and reversions, dependent thereon of the said province of Maryland, &c. they, the said Frederick Lord Baltimore and Cecilius Calvert, sold and released to the said Thomas Bennett and William Sharpe, the said province, &c. to the uses therein mentioned.

The said deed acknowledged before a master in chancery, on the 3d February, and enrolled in the Court of Chancery of Great Britain, the 4th February,  [**9]  1761, and in 176--, entered amongst the council proceedings in Maryland.

That the people in Maryland have considered themselves, and the Courts have adjudged them, entitled to the benefit of all the statutes of England, antecedent to the settlement of the said province, so far as suited to their condition, situation and circumstances.

That the statute de donis, 13 Edw. I. also the statute of Hen. VIII. concerning uses and wills, have been adjudged by the Courts of Law, to extend to the province; also all statutes enabling and concerning devises of lands.

That Lord Baltimore being seised of the said province, and in perception of the rents thereof, and of the said Manor of Anne Arundel, executed an indenture on the 8th of April, 1767, between the said Frederick Lord Baltimore, of the one part; Bennett Allen of the said province, of the second part; and Walter Dulany, of the said province, of the third part.

This indenture recites, that Frederick Lord Baltimore being under the limitation in the marriage settlement of Benedict Leonard Calvert, his grandfather, on the 31st December, 1698, or under the marriage settlement of Charles Lord Baltimore, his father, on the [**10]  11th January, 1730, entitled either as issue male of the body of the said Benedict Leonard Calvert, or as the first and only son of his father, with remainder to Charles Calvert his late uncle, to the province of Maryland, &c. as the same was granted to his ancestor by Charles I.

Reciting also, the indenture of the 1st January, 1761, to Thomas Bennett and William Sharpe.

Recites also, that all estates-tail of the province were docked under the said deed, 1st January, 1761, there being no other established mode for barring estates-tail, upon the entirety of the province.

Recites, that with respect to the manors, being parcels of the province, and of known extent, and in particular counties and parishes, plea may and hath been usually held in the Provincial or County Courts of the province, who are possessed of a competent and adequate jurisdiction in that behalf.

Recites, that for docking the entails of the manors, and for vesting an estate in fee-simple in Frederick Lord Baltimore, and in consideration of 10s. paid by the said Bennett Allen, conveys to him Anne Arundel Manor aforesaid, and all his other manors; to the intent that he should become tenant of the same,  [**11]  that a common recovery may be suffered, wherein Frederick Lord Baltimore should be vouched.

That the said Walter Dulany was to be demandant, who might sue forth a writ of entry sur disseisin en le post, at or before the first Provincial Court next ensuing the date of the said indenture.

That the recovery to be had and perfected as aforesaid, or in any other manner or form whatever, shall enure to the use of Frederick Lord Baltimore in fee.

Nothing in this indenture to impeach any thing done under the indenture of the 1st January, 1761.

That on the said 8th of April, 1767, Frederick Lord Baltimore executed a power of attorney to Robert Goldsborough, attorney-general of Maryland, empowering him to appear on return of the said writ of entry, and appointing him his attorney, to appear before the justices of the Provincial Court, &c. upon all and every writs of entry, prosecuted by the said Walter Dulany, for demanding the said manors, and on every warranty in which the said Frederick Lord Baltimore shall be vouched over, by the said Bennett Allen; also to enter into warranty, and vouch over the common vouchee; also to demand himself, as Frederick Lord Baltimore might,  [**12]  if personally present; so that one or more recoveries may be suffered of the manors; also to do all other acts for rendering the said indenture valid.

That Bennett Allen, at the time when, &c. was in the actual possession, &c. by virtue of bargain and sale, &c.

That Bennett Allen, in virtue of the said indenture, entered into the tenements in the declaration mentioned, and was seised thereof as the law requires.

That Walter Dulany prosecuted a writ of entry returnable to the Provincial Court the third Tuesday of May, 1767, against Bennett Allen for the lands, &c. who appeared in proper person and vouched Frederick Lord Baltimore, who appeared by Robert Goldsborough his attorney, and vouched over the common vouchee.

That a writ of seisin was granted the said Walter Dulany returnable the third Tuesday in October, 1767, and returned by the sheriff of Anne Arundel county.

That it was the usage to bar common recoveries, by power of attorney, without any summons to warranty or summoners ad warrantizandum.

That the act of assembly for aiding common recoveries, passed before the said recovery was suffered. This act is the one hereinafter mentioned.

That by [**13]  the practice of the Provincial Court, where the parties have resided in the province, they have on common recoveries appeared, either in proper person, or by attorneys of the Court constituted to warrant, acknowledged before a judge of the said Court, or acknowledged before Commissioners appointed and empowered by writ of dedimus potestatem, issued out of said Court; the acknowledgment of taking of which warrants of attorney have been always certified by the Judge or Commissioners taking the same; and the same warranty, writs and captions have been filed in the said Provincial Court before passing the common recoveries suffered by virtue thereof.

That no writ of dedimus potestatem issued for taking any warrant of attorney from Frederick Lord Baltimore.

That the said Frederick Lord Baltimore did not make or acknowledge any warrant of attorney before a Judge of the said Court, for suffering the said recovery.

That there was not any usage, where tenant in tail resided out of the province, for issuing out such dedimus potestatem for taking warrants of attorney.

That the Provincial Court, held the third Tuesday of May, 1767, was by virtue of a commission from Frederick [**14]  Lord Baltimore, which commission is inserted in haec verba.

That, in July, 1732, c. 5. an not passed, entitled an "act for ascertaining the form of the oath of a Judge or Justice;" which oath is as follows, to wit: "You shall swear, that as a Justice of the Provincial Court of Maryland, in all articles of his lordship's commission to you directed, you shall do equal law and right to all the king's subjects, rich and poor, according to the laws, customs and directions of the acts of assembly in this province, so far forth as they provide, and where they are silent, according to the laws, statutes and reasonable customs of England, as used and practised within this province, and not delay any person of common right for any cause or pretence whatsoever, and in case any letters or other commandments shall come to you, contrary to law, that you do nothing by them, but cause them to be entered on record, and certify the king, the lord proprietary, or the governor, (for the time being,) of them, and proceed to execute the law notwithstanding the same letters or commandments; that you shall hold your Courts according to the acts of assembly and the directions in your commission; that [**15]  you shall do and procure the profit of the lord proprietary in all things where you may lawfully and reasonably do the same; and that you shall not debar or hinder the prosecution of justice, nor take any gift, bribe or fee, for delaying or rendering judgment, but shall behave yourself justly, honestly and faithfully, to the best of your knowledge and understanding, so long as you shall continue in the said office. So help you God."

That the said act was in force when the recovery was suffered, and is still in force; and that it is taken by all Judges, and was by the Judges of the Provincial Court, before the recovery suffered.

That the lords proprietary, either personally or by their governors, commissioned during pleasure, have administered the government of the province, and appointed all officers, civil and military.

That all acts of assembly, commissions and writs are in the name and style of the lord proprietary.

That all officers, and the Judges of the Provincial Court, have been held removable, and actually been removed, at the pleasure of the lord proprietary.

That Cecilius Calvert, mentioned in the deed of the 11th July, 1730, died in 1765 without [**16]  issue.

That Stephen Theodore Jansen, in the said deed mentioned, is living.

That Mary, wife of Lord Charles, died in 1769.

That Frederick Lord Baltimore died without issue, the 4th September, 1771.

That Louisa and Caroline, his sisters, the daughters of Lord Charles, are still living.

That the trusts in the deed of the 11th July, 1730, ceased respectively on the death of Mary Jansen, and the marriages of Louisa and Caroline, and the payment of the portions; which were paid before the death of the Lady Mary.

That after suffering the said recovery, notice was given in the Maryland Gazette, for the sale of the said manor.

In consequence whereof, the manor was sold to the highest bidders.

That from the first settlement of the province hitherto, there hath been a great seal, and all grants conveyed in fee by the proprietor, have been granted under it, and is now constantly used by them in making such grants.

The Jury find a patent to John Thomas, in 1769, of a parcel of the Manor of Anne Arundel, recorded in the land-office, who entered into the land therein mentioned, claiming an estate in fee, and was, and is seised thereof as the law requires.  [**17]  

They find several other grants to other purchasers, of Anne Arundel Manor, in the same manner as that to John Thomas, &c. and that the defendants, holding under the said grants, are not guilty as to any of the lands so granted to them, which do not lie in the said manor.

That the said grants reserve a quit-rent of 4s. per 100 acres, &c. fine for alienation, according to the conditions of plantations.

That the said parcels of land were leased by the agents of Charles Lord Baltimore, under his hand and seal, in the life-time of Charles Lord Baltimore, to divers tenants for 21 years, under the usual rents; neither of which leases expired before the 25th of March, 1755, nor until within 30 years before bringing this suit.

That Frederick Lord Baltimore, by the hands of his agents, who entered into the said manor, on his behalf, after the death of his father, took the rents reserved on the leases of the said Charles Lord Baltimore.

That Frederick Lord Baltimore never was in Maryland, nor personally entered into the said lands, nor any part thereof.

That after the expiration of the leases made by Charles Lord Baltimore, new leases for the lands (the leases whereof [**18]  had expired) were made as soon as conveniently could, by the agent of Frederick Lord Baltimore, reserving the usual rents, for terms of years respectively; and that by virtue of such demises, the tenants entered and enjoyed the same till the grant before formed.

That many of the tenants purchased and obtained grants for the lands as set forth.

That from the death of Charles Lord Baltimore to the death of Frederick Lord Baltimore, the rents of the said manor were received by his agents, by his directions, and for his use.

That during the said time no demand was made by the lessor of the plaintiff of the said rents, nor any paid to him.

That the statute of limitations, 21 James, c. 16. extends to the province.

That the lessor of the plaintiff, since the death of Charles Lord Baltimore, hath been twenty years out of possession, unless the law doth otherwise adjudge on the state of the leases herein before mentioned.

That the British statute of 11 Geo. II. for payment of rents extends here.

That on the 1st November, 1766, an act of assembly was made to aid defective common recoveries, which is inserted in the special verdict.

That in June, 1773,  [**19]  c. 1. an act of assembly was passed, entitled, "an act concerning estates-tail, and the jurisdiction of the County Courts," which is inserted in the special verdict.

That no suit has been brought against any lord proprietary, but the said common recovery; but many actions have been brought in the names of lords proprietors, as plaintiff, on bonds, bills, and other causes of personal actions.

That on ejectments against persons for lands claimed by the lords proprietors, their agents have defended the same; and that they always had agents in the province.

Nineteen other recoveries for 116,000 acres of land were suffered under the deeds of the 8th of April, 1767, and the power of attorney.

The Jury find the lease, entry, and ouster; and if upon the whole, &c. &c.  

DISPOSITION:
Affirmed.  

COUNSEL:
Cooke, for the plaintiff. The subjects of Great Britain settling in America, brought with them all the laws of the mother country, and were entitled to their beneficial influence in all cases where they could apply to their local and particular circumstances. 2 P. Wms. 75. 2 Vez. 349.

The statute de donis, of uses, and of wills, were laws of our first ancestors; but subsequent statutes [**20]  did not reach us after the granting the charter by Charles I. unless particularly named, or, as the verdict states, were received here by adoption.

Under these impressions, the first settlement of 1698, by Charles Lord Baltimore, was made, by which the province was limited to himself for life; to his son Benedict for life; to the issue of Benedict in tail; reversion to Lord Charles in fee. But these deeds were not acknowledged or recorded; and therefore the plaintiff contends they had no operation. Deed, 31st December, 1698. Act of 1692, c. 30. Act of 1715, c. 47. s. 5. The proprietary, then a private person, the government being in the hands of the crown.

If the deeds of 1698 did not operate in this province, Charles Lord Baltimore, the issue of Benedict, was seised in fee when he made the settlement in 1730, by which he conveyed to the use of himself for life. Remainder to trustees during his life, to preserve contingent remainders. Remainder to trustees and their heirs during the life of Mary his wife, in trust, to permit her to receive 800l. per annum out of the rents and profits, as a jointure, and in lieu of dower. Remainder in strict settlement to his first and other [**21]  sons in tail, subject to a term of 1,000 years, in the trustees, for the better securing his wife's jointure, and the gross sum of 1,000l. to her, and for raising by sale or mortgage daughters' portions, &c. Deed, July 11, 1730.

Lord Charles having an estate in fee, these deeds were intended to alter that estate to an estate for life in himself, to Lady Mary for life; to Lord Frederick in tail; subject to a term of 1,000 years for the better securing Lady Mary's jointure and daughters' portions. Reversion to Lord Charles in fee.

This reversion was executed in Lord Charles, or rather it was so much of the fee undisposed of, and remaining in him. If a conveyance is made and no uses declared, it results for the benefit of the feoffor. Suppose uses are declared, the moment they are spent the estate results in like manner. Co. Litt. 22. b. 4 Burr. 1960. 2 Vez. 51.

Charles Lord Baltimore having this reversion depending on an estate-tail in his son, Lord Frederick, by his will, dated 17th November, 1750, devised it to Mr. Calvert in fee, and thus the title of the lessor of the plaintiff is complete, unless it can be shown that the estate-tail has been barred, and the reversion [**22]  depending thereon destroyed. 3 Burr. 1494, 1495. 4 Burr. 1952. 1960. 1 Burr. 60. 326. 1 Salk. 232. Fern. 70, 71. 2 Vez. 339, 340. 1 Raym. 523.

Conscious of this truth, and of the difficulty of docking the entail, the late Lord Frederick, by his marriage articles on the 9th March, 1753, with Lady Diana Egerton, (and which were expressly subjected to the outstanding trusts for his mother's jointure, and payment of his sisters' portions, by the deeds of the 11th July, 1730,) covenanted that as the entail could not be barred in the Courts in Maryland, that he would procure a private act of parliament for that purpose. He made his application to parliament, but failed. His next step was executing the deeds of 1st January, 1761, which are made by the defendant's part of this verdict; supposing that no estate-tail could be created that is not barrable in some way; and reasoning in this case by analogy to the cases of entailed copyholds and descendible freeholds in England, where, in some instances from necessity, they have been barred by common conveyances.

The case of copyholds depends on custom; they are considered as tenancies at will, of which no praecipe will lie from the Courts [**23]  of Common Pleas, and in most instances they are now barred by process in the nature of a recovery in the lord's Court of the manor. If no custom to bar by such recovery, a surrender will do if there be a custom to bar by surrender. But if no custom to bar by either, Lord Hardwicke has declared it must be by recovery. 2 Vez. 601. The mode of barring descendible freeholds, if entailed, by simple alienation, was originally adopted on the principle of barring conditional fees at common law. A common recovery or fine would have been a forfeiture. 1 Atk. 525. It was afterwards extended from necessity, there being no other method of doing it, to all cases, even before issue had. But this is the case of an inheritance, and if there be any other mode of barring the entail, the necessity existing in the case of descendible freehold will not apply.

But neither in the case of descendible freeholds, copyholds, nor yet of trusts, can the entail be barred by simple alienation, if the limitations are so tied up that if the estate had been a legal estate and an inheritance, the tenant in tail could not have barred it by a common recovery. 2 Ch. Cas. 64. Cruise, 144. 2 Vern. 583.

The next [**24]  method Lord Frederick adopted to bar this estate-tail, was, by suffering a common recovery in the then Provincial Court of this province, on the third Tuesday of May, 1767. If this could be done, there is an end to his conveyance of 1761; for that extraordinary mode can only have effect in such cases where there is no possible method of doing it in any other manner.

But an estate-tail cannot be barred in any case, unless there is a good tenant to the praecipe. In this case, by the settlement of 1730, Lord Charles having interposed an estate to the trustees and their heirs, for the life of Lady Mary, prior to the estate-tail limited to Lord Frederick to secure 800l. per aunum, as a jointure to Lady Mary, Lord Frederick could make no legal tenant to the praecipe, and consequently the recovery is void. Cruise, 24. 21. 4 Burr. 2165. 3 Burr. 1686. 1 Vez. 436. 491. 2 Atk. 578. 2 Ch. Cas. 64. Cruise, 144. 2 Burr. 918. 1065. 1 Burr. 60. 116. 2 Atk. 72. 2 Vern. 584. 3 Atk. 135. Pigot. 50. 1 Salk. 568. 679. Cowp. 694. 701. 704. 2 Black. Rep. 1326. 2 Str. 798. Br. Ch. Cas. 75. Lord Frederick, an under-tenant to the trustees at the rent of 800l. per annum, for the use of Lady Mary.

There [**25]  are other material objections to this recovery. The warrant of attorney is not acknowledged either before any Judge or taken under a dedimus which is found to have been the constant usage in the province. Great frauds might be practised if it were otherwise. Cruise, 76.

The verdict, it is true, finds that Lord Frederick executed this power of attorney, but how is that fact to be proved after a number of years; or if proved, how will it appear from thence that it was not executed under duress or other improper influence? The legislature has wisely directed an acknowledgment of all conveyances; and recoveries being a mode of conveyance, there is every reason for the same preeaution with respect to them as to common deeds. It bears date before the writ of entry issued, which is error appearing upon the face of the proceedings. Cro. Eliz. 740. Regularly there ought to be a summons to warrant, and although a party may appear voluntarily without any summons; yet he cannot appear without a writ, and there can be no warrant to defend a writ before it issues. Another objection to this recovery is, that the proprietary being lord of the fee and seigniory, could not suffer a common recovery [**26]  at all. Lord Frederick thought so, for he applied to parliament upon the ground that there was no other method of barring the entail. He could not be demandant in a recovery because he could not be disseised, for all must hold of him. He could not be vouched for the same reason, because he would then stand in loco tenentis, and in judgment of law would be tenant to, and hold of, demandant.

But if the proprietor could suffer a recovery he could not do it in his own Court. The Judges were appointed by him, held their commissions in his name, and were removable at his pleasure; exercised their jurisdiction as his delegates, and the Court in every instance and sense is as much his as if he presided in person. Can such a Court be proper for trying suits in which he was either plaintiff or defendant? Is it agreeable to natural justice that a jurisdiction so partial could be established? Could it be the intention of the crown, in granting the charter, to extend his jurisdiction to causes in which he was interested? Or if such was the intention, could it be in the power of the crown, or rather was it not contrary to the fundamental principles of the English Law and Constitution to render [**27]  him in effect a Judge in his own cause? Davis, 75.

The crown might grant cognisance of pleas to proceed according to the law of the land; but not otherwise. Litt. Rep. 304. Hob. 48. Lucas, 125.

No principle can be better settled in reason, or in practice, than that no one shall be a Judge in his own cause, and the jealousy of the English law has carried this principle so far that none can be a Justice of Assise in the County where he was born. The king cannot by his writ command himself, and how could the proprietor? Litt. s. 212. Co. Litt. 141. 2 Inst. 25. 8 Co. Rep. 118. b. Salk. 186. 12 Co. 114. a. 2 Burr. 860, 861. 4 Co. 55. a.

It is said by Lord Mansfield and Lord Hardwicke both, that in all cases where the dispute respects the seigniory, the proprietor's Courts are incompetent to hold jurisdiction, and in such case from necessity the decision must be by the king in council. From the same necessity they had always appellate jurisdiction from the plantations. Then why not for the same reason in this instance have original jurisdiction? Cowp. 173. 1 Vez. 444. 447. 2 Vez. 356.

There is no distinction between a suit for the whole province and for a part of it;  [**28]  between a real action and a fictitious one, as far as regards the impropriety and illegality of allowing a jurisdiction to the Court of the proprietor in his own case.

If the recovery shall be found on consideration to have been suffered by the proprietary in his own Courts in proper form, and not subject in law to the objection last made, still it must be deemed to be void as to the subject of this controversy.

Wherever particular uses are limited, the reversion remains in the grantor as so much of his estate undisposed of. The reversion limited to Lord Baltimore and his heirs on the determination of the particular estates, was no more than what resulted by operation of law, and was so much of the original estate not disposed of. It was a legal estate remaining in Lord Charles, and devised by him to Mr. Calvert; but the estate in Lord Baltimore was never vested in possession. The fee was in the trustees, and he was cestuy que trust, and that only in remainder at the time he suffered this recovery: and a recovery suffered by cestuy que trust will not bar the remainder or reversion of a legal estate, but only the remainders of the trust estate. 2 Atk. 578. 1 Atk. 595. 4 Burr.  [**29]  2165. 1961. 1 Atk. 473. Brown's Ca. 73. 75.

If Lord Frederick was tenant in tail, and could bar it without joining the outstanding estate for life, he would destroy the provision made for his mother's jointure. He would acquire a fee and take a new estate by purchase, Pigot, 136. must apply to the Chancellor to direct trustees to join, who will then take care to see the provisions of the trust are secured. 1 P. Wms. 358. 536.

Objection 1. That there is a variance between the name in the demise by the lessor of the plaintiff and the name in the will of Lord Charles Baltimore.

Answer. The identity is sufficiently ascertained by the special verdict. It is not found that there was any other person by the name of Benjamin who could take, and therefore the intent might be explained by parol testimony. 1 Atk. 410. 1 P. Wms. 421. 425. 2 P. Wms. 141. 1 Wils. 247. 2 Vez. 216. 2 Atk. 372. Brown's Ch. Ca. 85. 2 P. Wms. 137. 1 Vez. 231. 3 Com. Dig. 17. 2 Com. Dig. 188. 2 Vern. 593. Bro. Ca. 474. 2 Atk. 240. 2 Vern. 625. Prec. in Chan. 229.

The Court on special verdict will never doubt of what the Jurors do not doubt of. 5 Co. 97. a. Cro. Eliz. 238. Cro. Jac. 64. Salk. 249.

The [**30]  Court will not admit parol evidence to raise a title or gift; but where the title or gift is raised, and there is a doubt as to the person to whom it is given, or as to the thing given, parol evidence may be admitted. Co. Litt. 3. a. Cro. Eliz. 328. 1 Lill. Abr. 874. 2 Bro. Abr. 652. Com. Dig. (Grant,) 442. Cro. Jac. 640. 558. 3 Atk. 258. Gilb. C. P. 181. 174. 3 Leon. 18.

Objection 2. That the proprietary is to be considered in loco regis, and therefore not bound by the act of 1692, not being particularly named. 5 Co. 14. 11 Co. 17. 7 Co. 32.

Answer. The king is bound by the stat. 32 Hen. VIII. c. 28. directing the mode of conveying the estates of feme coverts, though not named, and why not as to the conveying all other estates? 4 Bac. Abr. 198. 2 Inst. 681. Cruise on Fines, 87.

The proprietary either is, or is not, loco regis. If he is not, the act of 1692 operates. If he is, the deeds of 1698 are void, for the king cannot raise a use by bargain and sale to ground a release. And this is the reason why no cases occur in England as to the king's being bound by the statute of enrolments which relate to bargains and sales only. 1 Bac. Abr. 274. Gilb. Uses, 285.

He [**31]  cannot grant lands in freehold but by matter of record. But may make leases. 4 Co. 54. b. Plowd. 212, 213. 3 Bac. Abr. 305. 4 Bac. 192. 196, 197.

But these deeds could not operate because the government was in the hands of the crown, and the proprietary not in possession. n1

n1 This fact is not stated in the verdict.

Objection 3. That the province of Maryland was granted for the purposes of colonization, and therefore could not be entailed. The effect of the deed of 1698, therefore, if good, would be to convey a conditional fee, upon which there can be no remainder: and that Lord Charles having made the settlement in 1730, before he had issue, it was void. Contra, Co. Litt. 19. a. as to all claiming under him.

Answer. A conditional fee is as much against the spirit of colonization as an estate-tail. A tenant in tail might suffer a recovery immediately, but the grantee of a conditional fee could not alien before issue had. There could be no remainder on a conditional fee at common law, because it would be to limit a fee upon a fee. But there is a reverter by operation of law on the extinguishment of the conditional estate. 2 Inst. 335. Nels. Lex Test. 281.

If [**32]  the province of Maryland was not entailable, the descent of this reverter, on the death of Benedict, merged the conditional fee in Lord Charles, and made it absolute. 2 Bl. Com. 110. 177. Co. Litt. 18. a. Carth. 258. Hob. 323. 1 Salk. 338. 2 Vez. 354. 3 P. Wms. 10. Vin. Abr. (Merger,) 364. D. Plowd. 248.

But if the descent of the reversion did not merge the conditional fee, then Lord Charles, upon having issue, had an absolute power over the estate. He might have aliened immediately, and consequently he might devise; for a devise is a conveyance, and at the time this devise was made, and long before, Lord Charles had issue. 1 Bl. Com. 102. 2 Bl. Com. 294. 1 Burr. 92, 93. Shep. 1, 2. 500. Bac. Law Tracts, 147. 152. 2 Bl. Com. 373. 378. 379. 382. Cowp. 90. 1 Burr. 429.

Objection 4. A possibility of reverter is not devisable.

Answer. If the province was not entailable, the deed of 1730 conveyed the absolute fee and legal estate to the trustees, to the use of Lord Charles for life; to the trustees for the life of Lady Mary to pay her jointure; to Lord Frederick in fee on condition, with a contingent, springing, executory use, to arise out of the estate of the trustees, for [**33]  the benefit of Lord Charles and his heirs, if Frederick died without issue; and whenever there is such a use which may descend it is devisable. 1 Bl. Rep. 225. 252. 605. 8 Vin. Abr. 112. pl. 38. Lucas, 420. 2 Burr. 1131. Doug. 691. 2 Wils. 29. 1 Brown's Cas. Ch. 31. 61. Shep. Touch. (new edit.) 503. Carth. 258. shows it descendible or it could not merge. 5 Bac. Abr. 371. note. 3 Durnf. & East, 88.

If the proprietary is loco regis, the possibility may be granted; a fortiori it may be devised. 2 Vez. 180, 181. Bro. Ch. Cas. 316.

A devise of land operates as an appointment to uses. At common law lands would not pass by devise; they settled them to uses; and then by will appointed or directed those uses. There might be a use upon a use, executory, springing, or contingent at common law, and these uses were devisable. 3 Chan. Cas. 31. Fern. 77, 78. 1 Atk. 591.

A use was an interest merely in idea at common law, and yet it was devisable. These deeds created such a use as might be transmitted by devise. After the statute of uses executed the possession to the use, they were no longer devisable, and that effect produced the statute of wills. 2 Atk. 38. Harg. Co. Litt. 111. b.  [**34]  There can be no reason, therefore, why, upon principle, any use that was devisable at common law should not now be devisable under the statute of wills: and the late decisions establish this doctrine most effectually, and beyond contradiction. Reverter of copyhold entailed is devisable. 3 P. Wms. 287. 263. 2 Bl. Rep. 1046. 4 Burr. 1952. Cas. temp. Talb. 36. The reverter therefore being well devised to Mr. Calvert, Lord Frederick never having had issue, could not convey; and having died without issue, the lessor of the plaintiff is entitled to the possession. Co Litt. 13, 19.

Objection 5. The deed of 1698 is good, and Lord Charles seised of an estate-tail.

If the province was capable of being entailed, and the deed of 1698 is good, the proprietary being loco regis, and not named in the act of 1692, c. 30. then the second Charles Lord Baltimore was tenant in tail, reversion to himself and his heirs in fee.

Answer. If the conveyances of Lord Frederick in 1761, are to have the effect for which they were intended, to bar this entail, then the settlement of Lord Charles in 1730, will have the same operation. It will bar the estate-tail and create a new estate to Lord Charles [**35]  for life; to the trustees and their heirs for the life of Lady Mary; to Lord Frederick in tail. Reversion to Lord Charles in fee; in which case, the prior estate for the life of Lady Mary would prevent Lord Frederick from barring in any possible method whatever.

If the deed of 1698 is good because the proprietary is loco regis, he is so in this instance, and the king cannot bar by recovery. Pigot, 74, 75. Cruise, 102. Cro. Car. 96, 97. 10 Co. 112. 4 Bac. Abr. 191. Cruise, 80. 2 Inst. 241. Jenk. 244. Dyer, 154. b. Bro. Pr. pl. 146. Petition, pl. 1.

The king is bound by the statute de donis, and can only bar by fine of grant and render; and so might the proprietary in this instance. Cruise on Fines, 67. 124. Treat. on Fines, 26. 227.

Objection 6. A trust estate, entailed, may be barred by bargain and sale.

Answer. Trusts are governed by the same rule as legal estates. A fine, which is the highest and most solemn method of conveying a legal estate, will not bar the reversion, though it will the issue. A deed therefore of trust estates will not operate beyond what a fine will on legal estates. Cruise on Recoveries, 143, 144. 2 Chan. Cas. 64. 1 Vern. 440, 1 Atk. 591. Gilb.  [**36]  Uses, 102.

Objection 7. The proprietary is to be considered in loco regis, and not capable of devising.

Answer. The statute of wills has general words that comprehend all persons, then let the defendants show the disqualification. The king can take by devise, and why not devise. 3 Com. Dig. 12. 4 Inst. 335. 8 Rymer, 75. 1 Par. Hist. 477. Richard II. Maryland and Pennsylvania have both been the subject of family entails; have both been devised, and the government of Maryland carried on in Mr. Harford's name, under a devise, for several years. And it appears by statute, that the proprietaryship of SouthCarolina was devised and held by will. Preamble to 2 Geo. II. c. 24.

The statute of wills is expressly found to extend here, and in the construction of that statute, we must be governed by the laws of England, which know of no such distinction, or exception to the general words as are now contended for in this instance.

But if the objection had any force as to the seigniory, port duties, and such things as were not the object of the statute of wills; yet as to Anne Arundel Manor it would not apply, which was separated from the entire province by an actual admeasurement [**37]  under metes and bounds, and held in severalty; was leased under particular covenants; and held and distinguished as a separate estate, by the family deeds.

It may be contended, that as the verdict states that Frederick Lord Baltimore entered and was seised as the law requires, in 1751, after the death of his father, that more than 20 years elapsed before the bringing the ejectment, and the plaintiff is thereby barred by the act of limitations.

Answer. If Lord Charles was tenant in tail, reversion to himself in fee, his deed in 1730 would operate as far as it could legally operate on both his estates. Carth. 258. 1 Co. 48. b. 1 Salk. 338. And having charged all the estate he had, by a conveyance to trustees and their heirs in the first place to secure his wife's jointure; and afterwards by creating a long lease for payment of his daughters' portions; and still further by leases for 21 years to the tenants of Anne Arundel Manor; and it being expressly found that Lady Mary did not die till 1769, nor the daughters' portions paid till after their marriages; and it being also expressly found, that the leases to the tenants did not expire till within 20 years before the bringing [**38]  the ejectment, the devisee had no title until the expiration of the leases, and the trusts under the marriage settlement; nor ever until the death of Lord Frederick without issue in September, 1771. Cowp. 218. 1 Burr. 112. 119, 120. 2 Bl. Rep. 1326. Bull. N. P. 102. Hob. 322. 1 Roll. Abr. 659. c. 12. Receipt of rents will not bar by limitation. 2 Vez. 309.

If Lord Charles was tenant in tail under the first settlement in 1698, and consequently had no powers to make leases to bind his issue; yet the verdict states that Lord Frederick received the rents reserved after his death, and that affirmed the leases, which it is found did not expire until within 20 years of bringing the ejectment. 3 Bac. Abr. 310. Good at common law. Co. Litt. 45. b. Cowp. 473.

If Lord Charles had a conditional fee, and, it should be said, had no power to alien before he had issue, and having issue and then devising, the devise would be a conveyance, and the act run therefrom.

Answer. That the reverter descending, merged the conditional fee; and then by the deeds of 1730, a power to lease was reserved, and the devise could only operate on the reversion. He had a power to bind all claiming under [**39]  him. Co. Litt. 19. a. It is not found that the leases were made before issue. Presumed good not expiring, &c.

Memoranda. If it is said that the finding of the Jury is sufficient evidence of a good tenant to the praecipe, as the verdict states seisin and possession in Lord Frederick; and before a recovery could be offered in evidence, it must be proved there was a tenant to the praecipe. Bull. N. P. 226.

Answer. If the facts are stated, and the jury have drawn a wrong inference of law, the Court may determine from the facts. Stra. 766. 886.

If it is said that a surrender of the trustees will be presumed. Cruise, 33. 2 Burr. 1065.

Answer. The trustees are not tenants for life, but had a base fee during the life of Lady Mary, and could not surrender a fee. They were not trustees for the benefit of the tenant in tail, and shall not be presumed to have surrendered, nor are there any existing circumstances upon which to ground such a presumption. 2 Burr. 1065.

If Lord Charles had an estate-tail, reversion to himself in fee, when he made the deed in 1730, he conveyed thereby only a base fee, which was determined by the entry of his issue, Lord Frederick. Therefore,  [**40]  quaere, if the estate created for the wife's jointure was not, by such entry of Lord Frederick, defeated. 3 Burr. 1703.

Devise of an entailed copyhold will bar the issue. 2 Vern. 585.

Devise by cestuy que trust, will bar the entail. Prec. in Chan. 228.

Copyholds not within the statute de donis; yet reversion of entailed copyholds is devisable. 3 P. Wms. 287. 263. 2 Bl. Rep. 1046. 4 Burr. 1952. Cas. temp. Talb. 36.

If Lord Charles was seised in fee, and the trust for the life of Lady Mary is good, Lord Frederick was only cestuy que trust, and there could not, by his entry, &c. be a disseisin during the continuance of the trust. 1 Atk. 591.

Jenings, for the plaintiff. The province is not entailable, it being granted for the purposes of colonization, and if the inheritance could be fettered, then no grants could issue for lands in fee, and consequently the intent of the charter would be defeated.

If the province is not entailable, and the subject is of such a nature that the statute de donis does not extend to it, then what would be an entail under that statute is a fee-simple conditional at common law, and alienable after issue had; then the last Lord Charles [**41]  having issue a son, the devise of the late Lord Frederick to Mr. Calvert was good. 2 Vez. 180.

If the province was entailable under the statute de donis, yet being a seigniory with royal rights, the proprietary was in loco regis, and the entail was not barrable any more than of lands which the king holds jure corona, the inconvenience of fettered inheritances not extending to the case. If so, the devise of Lord Charles to Mr. Calvert took place on the death of all the issue in tail, and no act could be executed by the issue in tail to defeat the devise of the reversion in fee. Jenk. Cent. 250. 257. 2 Vez. 353.

If the lands were entailable, and the entail liable to be docked, yet the recovery suffered by Lord Frederick was ineffectual for the purpose. He could not suffer a recovery in any Court of the province, but should have done it in the Court of Common Pleas.

If the province was entailable, and the entail barrable by the proprietary in the Courts of Maryland, then he must be considered in the same light as any other suitor, and there was no good tenant to the praecipe, the deed not being acknowledged nor recorded, nor any dedimus to take a power of attorney.

If [**42]  the proprietary's deeds require acknowledgment and enrolment, will not the rights of his tenants of the manors for twenty-one years, or three lives, be affected? If he is considered as in loco regis to preserve these, and that he is not bound by the act of enrolments, ought he not to be considered in the same light as to his incapacity of suffering a recovery?

It is conceived the deeds of lease and release of 1761 are totally ineffectual, for they can convey nothing but what may be lawfully granted, and therefore cannot affect the reversion in fee. This would be altering the common law without an act of parliament, or any custom to support it. 4 Bac. 172. If these deeds will not dock the entail any more than a recovery, then the estate-tail cannot be barred, that is, unless the deeds are properly recorded.

If Lord Baltimore is to be considered as a common person, with regard to the suffering of a recovery, or other disposition of his property, then the settlement on the marriage of Benedict Leonard Calvert, made in 1698, ought to have been acknowledged and recorded, for want of which the province descended to Lord Charles, his son, in fee.

Under the settlement in 1698,  [**43]  Lord Charles first was tenant for life, remainder to his son Benedict for life, contingent remainders to the first, &c. son of Benedict in tail male, remainder to Lord Charles in fee. When the second Lord Charles, the son of Benedict, was born, he became seised of the vested remainder in tail, and after the death of his grandfather, the first Lord Charles, the remainder in fee descended on him. His marriage settlement could not alter this estate-tail; for if so, and he altered it to an estate for life, and created only a contingent remainder to his first son, &c. then he and the trustees under this marriage settlement, might have destroyed the contingent remainders limited by it, and by the same method any tenant in tail might defeat the issue in tail.

Lord Charles the second had, under his father's marriage settlement, in 1698, a conditional fee, or an estate-tail with reversion in fee. Whether it was the one or the other depends on the statute de donis extending to the proprietorship. If it did not, then it was a conditional fee, and Lord Charles second (after having issue) had a right to dispose of it. If the statute de donis affects the case, it was an estate-tail, and Lord [**44]  Charles had the reversion in fee, of which he might dispose. This point being established, it makes every other construction immaterial, and gives a good title to Mr. Calvert, under the will of Lord Charles second.

If the statute de donis has any force in this case, it must be by adoption. It has been adopted by the proprietary's grantees residing here, but not as it respects the proprietary himself, and the deeds of settlement may operate as well to give a conditional fee as an estate-tail.

That foreign dominions should hold of the crown of England, could not have been the object of this statute. It says the will of the donor shall in future be observed; but suppose a breach of this law, what Court in England could have taken jurisdiction of it? For example, one person insists he has the right to the province under an entail, another under the condition being performed, who could the makers of the statute de donis imagine had a right to decide it?

It is no objection to say that the different family settlements show the estate was entailed; for this depends on the statute de donis extending to the subject or not. The modification in words is the same as to an estate-tail,  [**45]  or a conditional fee; but whether it is one or the other depends on the statute's applying or not applying to the case.

If the statute de donis is construed to extend to the proprietorship, or the province in the hands of the proprietor, before any grant, then if the settlements are well executed, Lord Charles second had an estate-tail and reversion in fee; had a right to dispose of this reversion, and this disposition was valid, unless Lord Frederick, the issue in tail, has destroyed it by any subsequent act.

In considering the question under this head, it must be taken up, as supposing Lord Frederick lord proprietary of the province, or he must be considered as a private person.

If the province is to be considered as entailable under the statute de donis, yet being a seigniory with royal rights, and all Courts of Justice held in virtue of the proprietor's commission, and the process being in his name, he could not bar the entail by a recovery, any more than the king can in England. If so, the devise of Lord Charles to Mr. Calvert of the reversion of the manor took place on the death of the issue in tail in his settlement, (Lord Frederick was the last,) and no recovery [**46]  could be executed by him to defeat this reversion in fee.

First. In order to know in what manner the settlements found in the verdict may affect the case, it is necessary to consider whether the proprietary grant from the crown is affected by the statute de donis. It is conceived that this statute neither in its letter, nor meaning, can affect the province held immediately under the grant of the crown. Though it has been adopted as to subinfeudations made by the lords proprietors.

The history of the statute de donis, and the purpose of making it, compared with the purpose of granting the charter, will show that it could not extend to the province, held immediately of the crown. The statute was made to prevent the great baronies from being divided, that their joint power to oppose the king might not be weakened. Each baron was a petty prince in his own territory. His vassals attended him in war. The makers could never have in contemplation lands in a remote region. The statute does not extend to the Isle of Man. 4 Inst. 284. 2 Vez. 354.

The reasons on which the statute de donis rest, are there directly opposite to the principles on which the charter was granted. The statute [**47]  was to prevent the conveyance of property; the charter to encourage it. It is absurd to draw the same conclusions from things totally dissimilar in their principles. It is no argument to say that the statute de donis has been adopted with respect to the proprietary grant, because the settlement has words which would create an estate-tail, if the statute extended to the case; for this depends on the statute de donis extending to the subject or not, for the same words which make an estate-tail since the statute, make a conditional fee at common law; therefore, whether it is one or the other does not depend on the words of the conveyance, but on the statute's applying or not to the case.

When the Judges in the reign of Edward IV. determined that an estate-tail might be barred by common recovery, they could have had no idea that there could be any estate-tail under the statute de donis, but such as an action would lie to recover in the king's Courts. If no such action would lie, then it could not be an estate-tail.

The principle on which a common recovery was introduced, was to avoid the increase of perpetuities under the statute de donis. These perpetuities were estates-tail;  [**48]  but to say the statute extended to estates out of the realm of England, of which recoveries could not be suffered in the king's Courts, would be saying that the Judges gave a construction to the statute de donis to establish estates-tail out of the realm which could never be destroyed.

The statute de donis, says the will of the donor, shall be observed. On a dispute whether it was or was not observed, it must have been the ideas of those who made this act, that the point should be determined in the king's Courts. How could this be of lands in foreign countries? The common law, therefore, remains as to them, where the statute has not been adopted; then it becomes a rule not sua vi, but by such adoption. If it is said that the statute de donis does extend to foreign countries without adoption, then the entail may like other estates-tail be docked in the king's Courts.

Taking then the province not to be within the statute de donis, and on the supposition that all the settlements are valid, it follows that Lord Charles second had a conditional fee under the settlement in 1698, and on the birth of his son Frederick, the estate in fee was absolute, at which time, and not before,  [**49]  he had a right to dispose of it. He did dispose of it by his will, and that part of it called Ann Arundel Manor, to Mr. Calvert, who had a right to enter after the determination of the respective leases. In this view of the question the point is very short, for if the statute de donis does not affect the subject, then there is a clear title under the devise.

Second. To consider the subject on the supposition of its being affected by the statute de donis; and that this statute is to be construed as operating on the province immediately after the granting of the charter.

Lord Baltimore must be considered either as standing in loco regis, as to conveyances and acts executed by him, or he is not to be so considered. He ought not to be considered in both capacities, just as it may suit the adverse party, for this would be giving him greater privileges than the king, who cannot be considered as a private person, and a king too. If he is considered as a private person, the deed of 1698 is bad, it being neither acknowledged or recorded. If it is to be considered good in the case of the proprietor as being in loco regis, and not bound by the act, we must carry the doctrine of the [**50]  proprietor's standing in loco regis, as to conveyances, all through, and we shall hereafter see the conveyance of that doctrine. But taking the deed at present to be void for want of acknowledgment and enrolment, then the province descended to Lord Charles second.

By his settlement in 1730, he became tenant for life. Remainder to trustees and their heirs to preserve contingent remainders, and for permitting Mary Jansen to receive out of the rents and profits 800l. per annum. Then a trust for 1,000 years for the better securing of the jointure, and to raise younger daughters' portions and after the determination of said term, to the use of his first son, &c. remainder to himself in fee. From every state of our case, therefore, the freehold was in the trustees after the death of Lord Charles until the death of Mary his wife, in 1769. Then a remainder in tail was vested in Lord Frederick, at the time of his birth, which fell into possession at the death of Mary, and until that time the freehold was not in him. This death happened in 1769. Lord Charles devised the manor to Mr. Calvert, and at the time Lord Frederick attempted to dock the entail and destroy the remainder devised to [**51]  Mr. Calvert, he could not do it without joining the trustees.

There must be a freehold in the tenant to the praecipe. A person suffering a recovery must not only have an estate of freehold, but an estate of freehold in possession. If Lord Frederick, as tenant in tail after the freehold estate in the trustees, could suffer a recovery, it would destroy the jointure. Pigot, 136. For a tenant in tail suffering a recovery takes a new estate in fee by purchase; and, if the entail was limited to heirs ex parte materna, yet, after the recovery, it will descend to heirs general. Cruise, 151. The mode to be pursued is for the tenant in tail to apply to the Court of Chancery, to compel the trustees to join, which it will do on reasonable terms. In this view, as the estate-tail could not be barred by Lord Frederick, the trustees not joining, it is needless to consider the acts done by Lord Frederick to bar the entail.

Thirdly. If it is said that the deed in 1698 is good, and therefore Lord Charles being tenant in tail, with remainder in fee, could not make a jointure to encumber the estate-tail beyond his life, that then Lord Baltimore must be considered in loco regis so as not to be [**52]  bound by the act of 1692. He must be considered in loco regis as to all his other acts of conveyance, for it would be absurd and unjust to say the proprietor shall be considered as having jura regalia to support his acts against others, and also as not having jura regalia to support his acts against others. In this case, the Lord Baltimore could not suffer a common recovery in his own Courts. It could only be done before the king and council.

It would be a needless learning to consider how far the general rights and prerogatives of the lord proprietor are commensurate with those of the crown. To say that they are in all respects the same would be too large; to say he has none in any respect similar would be certainly wrong, and against the words of the charter. As to transactions in his Courts of Justice, they being similar, the commissions and process being in his name, they should have similar effects. Davis, 62.

A recovery is a matter of record, and in the nature of a feoffment on record. Every thing should be done under the authority of the Court, and being done under their authority, it becomes their act. Where the parties do not appear in person to have their appearance [**53]  recorded, then a dedimus must issue from the Court, and the acknowledgment, being taken under it, becomes their act. If a recovery can be suffered at all by the lord proprietor, it must be before the king and council.

Fourthly. It may be argued that the settlement of 1698 is good, as the act of 1692 does not bind the proprietor. Yet it does not follow that he is obliged to dock the entail by a recovery; for where an estate-tail is created, there must be some way of barring it; and therefore it may be barred by deed, as in the case of copyhokls, they may be barred by surrender, and descendible freeholds by conveyance. To this purpose may be cited 2 Vern. 184. 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259. 376. 2 Vez. 681. 3 Atk. 464. 2 Vern. 583. 2 Vez. 601. 603. 2 Vent. 603.

Answer. If Lord Frederick (being proprietor) could bar the estate-tail by deed, it follows that any former proprietor, supposing him to have an estate-tail, could do the same.

If the deed of settlement in 1698 is good, then Lord Charles took an estate-tail under it and the reversion in fee descended on him. And if a deed will bar an entail in the lord proprietor, then the deed of settlement in 1730 [**54]  executed by Lord Charles, barred this entail, and was in the nature of a recovery and a declaration of uses. By this deed he became tenant for life, remainder to trustees to preserve contingent remainders and support the wife's jointure. Remainder to his son in tail, remainder to himself in fee. He devised the manor part of this remaining fee to Mr. Calvert. The son could not dock the entail without joining the trustees, for this would destroy the wife's jointure.

This then is the general scope of the argument:

1st. The deeds of settlement of 1698, were invalid, or they were not invalid. If invalid, then Lord Charles second took an estate in fee by descent, nothing having been done to impede such descent. And if the deeds in 1730 were also invalid, then having the whole fee, he had a right to devise the manor to Mr. Calvert.

2d. Supposing the deeds in 1698 to be invalid and the deeds in 1730 to be good, then by the last deeds, Lord Charles became tenant for life; remainder to trustees and their heirs for securing his wife's jointure; contingent remainder in tail male to Lord Frederick; remainder to Lord Charles in fee. If this were the case, the recovery was improperly [**55]  suffered, there being an outstanding life-estate in the trustees or the wife, so that there was no tenant to the praecipe; nor could the proprietor suffer a recovery, therefore the devise of the second Lord Charles's remainder in fee, was not affected.

3d. Admitting the deeds in 1698 and 1730 to be good, then Lord Charles second had an estate-tail, and a power to make a jointure by the deed of 1698. He made a jointure, and therefore there was an outstanding estate for life, and consequently no tenant to the praecipe. Cruise, 42. 66. He had also the remainder in fee, and could devise it to Mr. Calvert. This devise took effect on the death of Lord Frederick, the estate not being properly docked.

4th. Suppose the deeds in 1698 to be good, then Lord Charles second became tenant in tail, and being so, could not make the settlement in 1730. He might devise the remainder in fee, provided Lord Frederick had not destroyed the estate-tail; therefore it brings it to the question, whether he did or did not bar the entail.

5th. Supposing the recovery suffered by Lord Frederick not effectual, and that his deed should be deemed so, then Lord Charles second had docked the entail by [**56]  his deed of 1730, and by this deed had given an outstanding term either to the trustees or his wife, for a jointure, then how could Lord Frederick dock it without a surrender of his life estate? If a deed will dock it, must not this deed be considered as a recovery, or will the want of a tenant to the praecipe be an objection to the conveyance, inasmuch as no praecipe is necessary.

Suppose the province not entailable, then if both the deeds of 1698 and 1730 are void, Lord Charles second had a fee-simple. And if the statute de donis does not extend, why should the statute of uses? Then none of the deeds are good. If the statute de donis does not extend, then the first deeds are good, and Lord Charles had a conditional fee, and by making the deeds in 1730, before issue had, he barred the after born issue, and the legal estate was in trustees. If the first deeds are good, then Lord Charles had a conditional fee under them, and on the death of his grandfather the reverter descended on him, which merged the conditional estate. Therefore, by his settlement in 1730, he created a life-estate to himself; then to trustees (or his wife) for the wife's jointure; then a conditional fee to [**57]  Lord Frederick, and the reverter was in Lord Charles. Lord Frederick never having had issue, did not comply with the condition, consequently he could not convey. The reverter being in Lord Charles, he devised to Mr. Calvert, and such devise is good, though a reverter is not grantable.

On the devise in Lord Charles second's will, being to Benjamin Calvert instead of Benedict Calvert.

The verdict finds that they are one and the same person, and no objection ought now to be taken to it. When a question of this kind arises, it must be at the trial,for the special verdict must stand as found. If evidence is not objected to on the trial, it ought not to be objected to after it. Lucas, 202. 203. 1 Salk. 272. 3 Burr. 1253. The only question at the trial must be, whether evidence is admissible to prove the fact contended for. When the fact is found, the Court must take it for granted that it was found on proper evidence. Upon their own argument some kind of evidence would have been proper. If so, how can the Court say that evidence was not given, or take notice of any that was. It is not the province of the Jury to find or insert evidence in a special verdict. They are only to find [**58]  facts from the evidence. They have expressly found that Benjamin and Benedict are one and the same person. This is the fact, and the Court must determine according to the fact.

Suppose it was proved that a man was called by a nickname, or was known by any other name, mentioned in a will, the devise would be good; but must the Jury find that "it being proved to us that the plaintiff having gone by the nick-name of    , therefore we find he is the person meant by the name of    , in the will." 2 Alk. 240. 5 Co. 68. If the evidence was improper, it should have been objected to at the trial; but the Court must now take it for granted there was proper evidence offered to prove the fact. If the Court had given any opinion on the evidence, and it had been a wrong opinion, the counsel might have excepted to it.

Suppose it had been proved at the trial, that the plaintiff went by the name of Benjamin, and that the testator always called him so, (this not being his proper name would have been a nick-name,) the devise, according to the cases in the books, would have been effectual. Can the Court now say no such evidence was given at the trial? If the evidence was to be inserted [**59]  in the verdict, it could answer no purpose; for even if the Court should think it not sufficient, and the Jury did, the Court must be bound by their opinions. If it is said there is not a sufficient designation personae in the will, and that is the only reason it cannot take effect; yet it must be admitted there is a sufficient one found in the verdict, and on the verdict the Court must give their opinion. A man outlawed, and taken on the capias, by the name of Steth, pleaded his name was Stethes, but being known by both names, it was held not to be a good plea. 15 Vin. 405. pl. 6. Yet judgment proceedings are more strict than where only a designation personae is required. 15 Vin. 408. pl. 3.

It is objected on the other side, 1st. That the statute de donis does not extend to the case. Then Lord Charles having issue, had a right to convey: that a will is a conveyance, and therefore having devised to Mr. Calvert, his title under this devise took place immediately on the death of Lord Charles second, and this lets in the act of limitations.

Answer. A person having a conditional fee, cannot devise after issue had. The title of the issue as well as of him in the reverter, must [**60]  take place immediately on his death. A tenant in tail cannot devise under our act of assembly; if it were so, the devise could not take effect till Lord Frederick's death, as the deeds in 1730 gave him a conditional fee. The devise was made after these deeds.

Objection 2. That if the deeds of 1698 are void, so must the leases be; and this lets in the act of limitations.

Answer. The deed of 1730, creating the conditional fee in Lord Frederick, prevents this, as Mr. Calvert's title did not accrue till his death without issue.

Objection 3. If Lord Baltimore could not suffer a recovery as being in loco regis, neither could his father devise to Mr. Calvert; therefore the plaintiff's title is bad. To this it is answered that the king may devise.

Objection 4. That the king cannot grant lands but by matter of record; therefore if Lord Baltimore is considered in loco regis, all the settlements are void, they not being by matter of record: then the whole descended to Lord Frederick, (except the manor,) admitting the devise to be good, and the act of limitations attached on the death of Charles.

Answer. There are no exchequer courts here; and whether is not the putting [**61]  a deed on record, the nearest to conveying by record that can be practised here. The deeds of 1698, are not put on record any where. If the king cannot convey but by record, it must be because his transfers ought to be known.

The reverter is devisable; what is descendible is devisable at this time by the best and most modern decisions; therefore proving the first is proving the last. That a reverter is descendible, see 8 Vin. 112. pl. 38. 3 Lev. 437. 1 Bl. Rep. 225. 252, 253. 605. Lucas, 20. Doug. 691.

The old doctrine that a reverter was not devisable, arose from the idea that it depended on a condition, and that what depended on a condition could not be transferred to prevent maintenance. Therefore a condition broken could not be assigned as debts, covenants, rights of entry for nonpayment of rents, &c. See 3 P. Wms. 262.

An estate to a man and the heirs of his body was a conditional fee at common law, and the word condition being applied to these estates, they were misled by the term, (it being an equivocal word, and they compared it to a condition broken, which gives a right of action, and as the latter could not be transferred, so they thought a reverter on a conditional [**62]  fee could not. It tends no more to maintenance to alien a reverter than a remainder. 2 Vez. 411. It is the more strange such a doctrine should have ever prevailed under the statute of wills, as the judges in Taltarum's case, Temp. Edw. IV. laid the foundation of common recoveries to prevent perpetuities, and this was strengthened by the stat. of fines in the reign of Hen. VII.

A reversion was always devisable, and the not allowing a reverter to be so, tends to a perpetuity. Judges have by degrees enlarged the power of devising. Executory devises would have been formerly rejected, and though such a remote limitation is not now good in a deed, it is in a will. They were first confined to a life in being, then extended to 21 years after.

That the descent of the reverter merged the conditional fee.

A man cannot have two fee-simples in him at one time. If he has a conditional fee, and a reverter in fee, separate, it must amount to the same thing in point of descent; therefore it is keeping them separate for no manner of purpose. Suppose he has no issue, then the reverter will descend to his right heirs and give the whole fee-simple. Suppose he has issue; it will descend in [**63]  the same manner. Before the abolition of all tenures but those in socage, the king would have been entitled to double relief for admitting the heir to these several inheritances. Suppose a person having these two fees should have a real action brought against him, which of the two fees would the demandant recover. The greater estate, therefore, must merge the less. If the reverter did not merge, but was held separate, yet the deeds of 1730 barred the issue, Lord Charles having a right to alien before issue had, to bar them, though not the donor. He himself was the donor. That he might bar the issue, Co. Litt. 19. 2 Inst. 333.

If they compare the province to such estates as may be docked by deed, as an estate per auter vie, then it may be aliened before issue had.

The lord proprietary could not suffer a common recovery.

If the king could not suffer a common recovery, neither could the proprietor; for though it is not contended that the privileges or prerogatives of the lord proprietary are commensurate with those of the king, yet in such cases, as the reasons apply on similar principles to the one as to the other, their privileges must of course be equal.

The king [**64]  is supposed to be always present in court, all process being in his name, and therefore cannot be non suit in any action in which he is sole plaintiff; but the king's attorney-general may enter a nolle prosequi, which has the effect of a nonsuit. If a recovery may be suffered against the king, there may be a default entered against him; and consequently judgment would go against him, and he would be said to depart in despite of the court, though by an established principle of law he is supposed to be always present in court. It is therefore impossible, consistent with the known principles of law, that a recovery could be suffered against the proprietor, for the king and he are in this respect in the same situation. If the king, tenant in tail, could suffer a recovery with voucher, the pracipe might also be brought against him immediately. If he comes in as vouchee, then he is made tenant to the pracipe by his own warranty, and the demandant counts against him.

A common recovery, though a fiction, is grounded on real principles of law. 2 Cruise, 11. Therefore no recovery in England can be suffered, but in the court of common pleas, that being the original court where civil suits [**65]  were brought. If a common recovery in which the proprietor is tenant or voucher can be supported, then a real recovery may be had against him; but this would lead to consequences in the highest degree absurd and totally inconsistent with the principles of law. If a praecipe would not lie against him in a real proceeding, (real is here meant in opposition to fictitious,) then a recovery by fiction could not be had against him.

The first process in a recovery is that kind of praecipe called a writ of entry, which commands the defendant that justly and without delay he render, &c. The absurdity is striking, of the lord issuing a writ in his own name directed to himself, commanding himself to do justice to another, and supposing himself to have acted unjustly in the records of his own court, and then to give judgment against himself. He would also be subject to a judgment and execution for costs which are given by the statute of Gloucester. If there is another disseisin on the demandant, by the statute of Merton he is liable to imprisonment, and in this case the writ must be issued in his own name to imprison himself. To avoid these inconveniences and absurdities it is held that the [**66]  king cannot suffer a recovery, nor can any be had against him. These absurdities were so glaring, that in all the settlements it was never attempted to suffer a recovery. The late attempt is the first. By Lord Frederick's marriage settlement it appears that the most eminent counsel thought it could only be docked by act of parliament. The Duke of Bridgwater was interested, and no doubt the matter was fully considered.

Though the proprietor's prerogatives may be thought not commensurate with those of the king, yet they ought to be deemed so in cases where the reason on which any prerogative of the king is grounded are equally applicable to both. The proprietor had the power of calling and dissolving assemblies; of vesting a power in his government to do so, as the king does to his lord lieutenant of Ireland. The proprietor had the power of pardoning in all cases, even capital ones.

The king being tenant in tail may bar the entail by a fine levied on a grant and render, but after the render made it is necessary to have letters patent to grant to the conusee by express words that he may enter into the lands; for the fine being executory upon grant and render, it may be doubted [**67]  if the conusee without such grant may enter upon the king. In this case the king must be demandant, and the mode was adopted to prevent the absurdity and irregularity of issuing his own process against himself. 7 Co. 32. b. Jenk. 307. Cruise, 44. Cro. Car. 96. If redress is sought against the king in any case, it must be by petition in chancery. On such petition there may be an issue, which is sent to the king's bench to be tried, and if found against the king, it concludes him. Finch, 238, 239. Plowd. 553.

Objection. If no real recovery could be had against the proprietor for a disseisin, then he might commit injuries for which there would be no redress.

Answer. The danger is little to be apprehended from an immediate wrong of the proprietor himself, and any acting under his command would be obnoxious to the law. If no power could be vested in any person because there was a possibility of abusing it, there could be no power ever lodged. In cases of this nature, (as I have heard,) the king and counsel used to hear complaints; but they having no power to punish by fine, or to give the party injured redress, the statute of 11 & 12 Wm. III. c. 11. was made. The proprietors are [**68]  the governors, and those appointed by them are only deputy-governors. And as the powers of government might be taken from the proprietor (as governor) on a complaint to the king in council, that alone was a sufficient guard to the subject.

Objection. To have redress only in England, would be greatly inconvenient to the subject here.

Answer. The appellate jurisdiction in all civil causes was to the king and council. It was considered as the dernier resort, and there being no remedy here against the opposition of the government, it lay there. On similar principles, the king and council had original jurisdiction respecting the boundaries of provinces. 1 Vez. 447. Further, if the remedy was to be obtained only here, the proprietor might have always stopped any proceedings by revoking his commission to the judges, as they were appointed during pleasure. He might delay issuing another till all suits were dis continued by the courts' not meeting at the stated times. He might refuse his assent to any act for reinstating such suits. These would certainly have been illegal acts, but the king and council were the proper jurisdiction for redress.

The recovery is bad for want of [**69]  a dedimus.

A recovery is a matter of record, and in the nature of a feoffment on record; every thing then should be done under the authority of the court. There is no principle of law more fixed than that where a recovery is to be suffered, and the parties do not appear in person to have their appearance recorded, then a dedimus must issue from the court, and then it is an act of the court. Cro. Eliz. 240. If the proprietor could execute a recovery, he must do it according to the common law usage for even the king cannot alter the common law. And if the proprietor is considered as in loco regis as to his courts, he cannot suffer a recovery. If he can suffer a recovery, he cannot be considered in loco regis, and then he ought to suffer it according to the usual course of proceedings, and not claim an exemption from those requisites which would be indispensably necessary in the case of every other person. If the laws relative to recoveries may be dispensed with in one instance they may in another, and it may as well be said there is no occasion for a writ of entry, or a tenant to the praecipe.

If the proprietor is to be considered as a common person, so as to enable him to [**70]  suffer a common recovery, yet in this case it could not be done, there being an outstanding life estate in the trustees, during the life of Lady Mary. It is a rule that wherever a trust is created, that trust must continue until the purposes are answered for which it was created. The trust here is inter alia for supporting contingent remainders, and for securing a jointure to Lady Mary. The trust therefore must continue until the death of Lady Mary, till which time there was a life-estate in the trustees, otherwise the jointure would be destroyed for want of an estate to support it.

No recovery could be suffered without the trustees joining. If trustees to support contingent remainders do any act to destroy them, a Court of Equity will set aside the conveyance, for the trust must continue to answer the intent of its creation. Prec. Ch. 308. 1 P. Wms. 128. 2 P. Wms. 610. Note to p. 87. There must be a good tenant to the praecipe. Cruise, 22. 42. 66. 1 Bro. Parl. Cas. 69. 1 Bro. Ch. Cas. 75. The necessity of the trust's continuing must be obvious, as otherwise the recovery would absolutely destroy the jointure. A tenant in tail suffering a recovery, takes a new estate by purchase,  [**71]  and if the entail was limited to heirs ex parte materna, yet after the recovery the land will descend to heirs general. This proves the old estate is gone, and all limitations dependent on it. Such a recovery will even destroy a debt which the tenant in tail agreed to pay as a consideration of the gift in tail. Pigot, 136. The king cannot dock the entail of his lands by deed. If the proprietor cannot dock an entail by recovery, it is because he is considered in loco regis; therefore he must be considered as in loco regis not to dock by deed.

Objection. If trustees appointed to preserve a small outstanding jointure, would prevent docking the estate-tail of a very large estate, then great inconvenience would ensue, and a tenant in tail could make no settlement on his marriage.

Answer. In this case application must be made to chancery, to compel the trustees to join in a conveyance to make a tenant to the praecipe, and the chancery may order it on equitable terms, and would take care that security was given that after the recovery, there should be a sufficient part of the estate allotted to secure the jointure. This a Court of Law cannot do; but if they were to permit the recovery [**72]  to stand good, the whole jointure must be destroyed, though to four fifths of the annual value of the estate. The Court of Chancery, upon equitable circumstances, may decree the trustees to join. 1 P. Wms. 358. 2 P. Wms. 614. 1 P. Wms. 536. 2 Vern. 583. And suppose Lord Frederick had only an equitable estate-tail, which could be barred by deed, it could only be so because the legal estate was in the trustees. Such equitable estate-tail could not affect the jointure, nor be docked in equity to hurt it, and his deed to dock an equitable estate to destroy a jointure would be bad, and he ought to apply to chancery to have it docked on equitable terms.

Objection. Though there requires a good tenant to the praecipe, in a recovery, yet the entail here may be docked by deed, and no praecipe being required, consequently there is no occasion for a tenant to the freehold.

Answer. If a deed will dock the entail, yet it must be on principles similar to a recovery, for it comes in room of a recovery. A deed or other mode of conveyance docking an entail, has exactly the same effect, and is liable to the same restrictions as a recovery. If it were otherwise, they might by this mode destroy [**73]  all outstanding life-estates and jointures. A person docking by deed must have the freehold in the same manner as a tenant to the praecipe. 2 Vin. 583. 2 Atk. 260. 2 Ch. Cas. 64.

If Lord Frederick, being tenant in tail, could dock it by deed, it follows that any former proprietor, being tenant in tail, could do the same. If the deeds of 1698 are good, then Lord Charles second had an estate-tail under this settlement, and the reversion in fee descended on him. By his deeds in 1730, he conveyed the province to trustees and their heirs, which conveyance docked the estate-tail. He declared the uses as above stated, so that the trustees had a freehold estate to preserve the jointure during the life of Lady Mary. This brings it to the same thing as if he had been seised in fee by descent. In the first case he would have had a power to create a jointure: so if he had an estate-tail, he docked it, and then interposed the jointure. No act that Lord Frederick could do, whether by recovery or deed, could dock the entail limited to him under the deeds of 1730, without joining the trustees, or if they did not join, it could not be docked till after the death of Lady Mary. He had no freehold [**74]  estate in him until Lady Mary's death; but only a remedy in equity against the trustees, for the surplus after Lady Mary's jointure was satisfied. The trustees had the fee, which did not cease till Lady Mary's death. The estate-tail in Lord Frederick was not in esse till her death, and if it was docked by the deed, he took an estate in fee and destroyed the trust and jointure.

Query. If the mode of barring by lease and release was not adopted in this case on the supposed resemblance it bears to a grant to one and his heirs during lives, which though not within the statute de donis, is entailable, and it is settled that such entail may be barred by mere alienation. 2 Vern. 184. 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259. 376. 2 Vez. 681. 3 Atk. 464. 2 Vern. 583.

What suggests this mode of alienation in these cases, probably was the mode of barring the donor, and the issue of the donee, in the case of a fee conditional at common law; for before fees conditional were converted into estate-tail by the statute de donis, the donee's alienation, after performance of the supposed condition by having issue, was effectual both against the donor and the issue of the donee.

It being [**75]  held that a descendible freehold was entailable, though not strictly within the statute de donis, the Courts were driven to some modes of barring such entail, and as a common recovery could not be suffered of a descendible freehold, without a forfeiture of the estate, and a fine in most cases not being sufficiently extensive in its operation, simple alienation seemed to be the only mode left, and was adopted with the less scruple, as having been before applied to fees conditional at common law. But, query. Whether it would not have been more conformable to the principles of the common law, if in consequence of holding descendible freeholds entailable, though not strictly within the statute de donis, the Judges had deemed them totally subject to the same consequences as conditional fees, and had declared that alienation should not be a complete bar of the entail until after having issue. Feigned recoveries are liable to the same consequences as recoveries really adverse. The former can only be prosecuted where the latter may.

Is there any instance, except in the case of the king, where the law permits any person to be judge in his own cause? The king and council are the proper [**76]  Court in this case. The appellate jurisdiction, with respect to civil causes from America, was always exercised. It arose from the necessity of the case, and there being no other Court which had a pretence for claiming such jurisdiction. The like necessity justifies an original jurisdiction: and there can be no hardship or inconvenience from an original more than an appellate jurisdiction; but the contrary, as the matter will be at once ultimately determined in the first instance. 2 And. 115. 4 Inst. 284. 20 Vin. 337. 2 Vez. 356. If there are disputes about the boundaries of provinces, the king and council have original jurisdiction. 1 Vez. 447.

Objection. There is a difference between a suit which respects the whole province, and part of the province.

Answer. Whatever differences there may be in other respects, they are the same so far as regards the impropriety and illegality of allowing a jurisdiction to the proprietor to judge in his own case. If the province can be docked by piecemeal, it amounts to the same thing as if a recovery was suffered of the whole at first. What cannot be done directly, cannot be done by circuity.

The lords proprietors are governors of [**77]  the province, and the governors appointed by them, are only deputy-governors. The governor might always revoke a commission to prevent a suit being tried against him. The statute 11 and 12 W. III. c. 11. was made for punishing governors who oppress the king's subjects abroad. Does not the making of this statute show that there was no remedy in the Courts here, else it would have been unnecessary.

How far the trustees should join in a conveyance to give effect to the recovery.

If the trustees, in a settlement to support contingent remainders, join with the tenant for life in a conveyance to destroy them, it is a breach of trust, and the Court of Chancery will set aside the conveyance. Prec. Chan. 308. 1 P. Wms. 128, 129. Where there is tenant for life, remainder to the first, &c. son, it is a contingent remainder, consequently may be destroyed, if there are no trustees to support it. 1 P. Wms. 129.

One after marriage, makes a voluntary settlement of his lands to himself for life, remainder to trustees to support contingent remainders, remainder to his first, &c. sons in tail, successively, remainder to himself in fee; he, afterwards, contracting debts, makes a conveyance [**78]  of his estate to other trustees for payment of them. The creditors brought a bill to compel the trustees for preserving contingent remainders to join in a sale to destroy them, and this being in favour of creditors, it was decreed. 1 P. Wms. 358. Unless it had been to pay debts, (though the settlement was voluntary,) yet the Court would not have interposed. 2 P. Wms. 614. The case proves that the first taker had only a life-estate, and that the son had not a vested remainder in tail, but only a contingent remainder. See the case of Winnington v. Foley, 1 P. Wms. 536. In that case, there being a son born, he had a vested remainder in tail; it shows the Court of Chancery was applied to.

In the case of Townsend v. Lawton, 2 P. Wms. 379. the bill was for trustees to join to make a tenant to the praecipe, the father being only tenant for years; there being a son born, he had a vested estate-tail in remainder, and being willing to have the recovery suffered, he might have been vouched had there been a good tenant.

Must not the trustees' estate continue in all cases as long as the purposes for which such estate was created remain? If so, how could the trust estate determine before [**79]  Lady Mary's death. 1 Bro. Ch. Cas. 75. If there was any hardship in a small outstanding jointure preventing the suffering a recovery, the Court of Chancery will relieve, by permitting a recovery to be suffered on securing the jointure.

In the case of Mansell v. Mansell, there was a devise to trustees to the use of Dorothy Loyd for life; remainder to trustees to preserve contingent remainders; remainder to the use of the first, &c. sons of Dorothy Loyd, in tail male remainder to Edward Mansell, in fee. D. L. married, and she and her husband, together with Edward Mansell, the remainder-man in fee, convey to trustees to the use of the husband and his heirs, and covenant to levy a fine to the same trustees, to the same use. The trustees to preserve contingent remainders convey to the husband in fee; a son is afterwards born; it was held, that the conveyance by the trustees destroyed the contingent remainders, and was a breach of trust. This case proves Dorothy Loyd had only a less estate, with a contingent remainder to her first son in tail; also, that the conveyance of the trustees conveyed the estate. See Cas. temp. Talb. 262. 4 Bro. Parl. Cas. 96. 264. 262. If a jointress has an [**80]  estate settled on her for life, a recovery cannot be suffered by the tenant in tail, unless she joins. 1 Bro. Parl. Cas. 69.

What is the consequence of trustees' joining, and to whom does the estate afterwards go?

Where the estate first limited is for years, and the tenant for years cannot be a tenant to the praecipe, the trustees must join. Where an estate is for life, remainder in fee, then if the contingent remainders are destroyed, they are the same as if never created. The trust is at an end, for it was to support contingent remainders, and there are none to be supported; consequently, the estate-tail must be docked, as if they had not existed. For example. Where there is a conveyance to A. for life, remainder to trustees to support contingent remainders, remainder to the first son in tail, remainder to B.; if the contingent remainders are destroyed, it is a life-estate in A. and a vested estate in B. So if the first estate is for years, the trustees making a conveyance, makes a tenant to the praecipe, and the person having the entail is vouched.

But in this case Lord Frederick being tenant in tail under his father's will, could be by his act in pais, turn this [**81]  estate-tail into an estate for life in himself, and would not this, by his deed of 1761, make the remainder to his son contingent, when the estate-tail had already vested in himself?

As to prerogative, there is a difference where the king claims in respect of his natural capacity per formam doni, as heir of the body of a subject, for there he shall be bound by an act of parliament; and where the king claims a thing in respect of his royal and politic capacity, there a general act of parliament shall not bind him, if he be not specially named, if it be not in special cases. 7 Co. 32. Fenk. 307.

A tenant in tail in possession, making a feoffment, discontinues the estate-tail. But if the king being tenant in tail, grants a patent of the land, it does not operate as a discontinuance, being a wrong, for it is a maxim that the king can do no wrong. Co. Litt. 325. Fenk. 308.

All civil jurisdiction flows from the king, hence all Judges derive their authority from his commission. 4 Bac. 171. The king can have nothing in his natural capacity, but in right of his duchy of Lancaster, or an estate-tail by the statute de donis: and the first continues separated by 1 Hen. IV. Faresly,  [**82]  78. The king is always supposed to be present in Court, therefore he cannot be nonsuit. He cannot make livery of seisin because it is inconsistent with his prerogative, therefore he shall pass lands in fee by his letters patent. Plowd. 213. If the lord proprietor has no privileges as to his land, then if he made an estate-tail, the donee in making a feoffment would discontinue it, but this is not admitted in the case of the king. Plowd. 553. Where aid is prayed of the king, the proceedings stop till the king's counsel are heard; but it must be before issue joined. Fenk. 64. A man shall have aid of the king, instead of voucher; there may then be a petition to the king to have in value. Terms de Ley. Verb. Aid of the King. Cro. Car. 97.

That the devise of a remainder in fee is good. 8 Vin. tit. Devise, 209. pl. 29. And that a devise of a reversion is good, see Fearne's Essay, 70, 71. 1 Salk. 232. 1 Ld. Raym. 523. 2 Black. 175. 2 Vez. 339, 340.

Query. If the trustees under Lord Frederick's marriage settlement ought not to have joined in the deed to make a tenant to the praecipe. This was done in the case of Lady Lanesborough v. Fox, but in that case the son had only an estate [**83]  for years. Cas. temp. Talb. 262. 4 Bro. Parl. Cas. 96. If the province was capable of being entailed, Lord Charles had a reversion in fee in him at the time of making his will. He might then devise it.

The king being tenant in tail, may bar the issues in tail, by a fine levied on a grant and render. But after the render made, it is needful to have letters patent to grant to the conusee by express words, that he may enter into the lands; for the fine being executory upon grant and render, it may be doubted if the conusee, without such grant, may enter upon the king. 7 Co. 32. In this case the king must be demandant, and the mode was adopted to prevent the irregularity of suing a praecipe against the king. Can a fine by grant and render even in the case of the king, bar the reversion as well as the issue in tail?

If the second Lord Charles was only tenant for life, in whom was the reversion; and if after his death, this reversion was in Lord Frederick, would not a fine of grant and render levied by him, effectually have barred the reversion as well as the issue in tail, inasmuch as the issue in tail would be entitled to the reversion, that is, supposing tenant in tail with [**84]  the reversion in fee in him, and he levies a fine of grant and render, will it bar the reversion? But should it be admitted that the reversion in fee was in Lord Frederick, what title could be in Mr. Calvert under the devise of the reversion by Lord Charles.

Martin, (Attorney-General,) for the defendants. None of the acts of assembly relating to the conveyance of land ever bound the lord proprietary. It was not necessary that the deed of 1698 should be valid. If one deed was good, the other was so also. The acts of assembly related only to parts of estates, and not to the province at large; to the conveyance of individuals, and not to those of the lord proprietary. The lord proprietary always granted by the great seal, and the consequence of extending the acts of assembly to the lord proprietary would be to render all his grants void. During that period, when the government was in the hands of the crown, the lands of the province passed by grant from the lord proprietary. All conveyances which by the laws of Great Britain might be used in passing property, are good to pass the province at large.

If the deed of 1698 is good, what estate had Frederick Lord Baltimore? Suppose [**85]  nothing more had been done, he would have been tenant in tail when the common recovery was suffered. The settlement of 1730 could have no effect to alter this estate, unless it could operate to bar the limitations in the deed of 1698. Admits the conveyance of 1730 had the effect to bar all the limitations of the deeds of 1698; and on the same principles any subsequent deeds made since 1730 will have the same effect. What is the effect of the settlement of 1730? Denies, 1st. That the reversion of the legal estate, remained in Lord Charles; and, 2d. That the trustees had no estate for life antecedent to the limitations in tail. The conveyance to the trustees is to them and their heirs; any uses afterwards limited were mere trusts in equity. The property is taken by the issue male after the death of Lord Charles, subject to the payment of 800l. per annum to the wife for her jointure. If Lord Frederick was cestui que trust after the death of his father, the only question is whether cestui que trust in tail has barred it. The special verdict finds that Lord Baltimore constituted Mr. Goldsborough, his attorney-general, and finds that the lord proprietary had an attorney-general. What is [**86]  necessary to constitute an attorney? 7 Hen. VIII. p. 4. pl. 22. Appearance by parol is good. Sty. 348. It is against the record to say a person is not attorney after he has been received as such. Cro. Jac. 521. Vin. tit. Attorney. Common recoveries are common assurances. 1 Wils. 73. The legislature applauded common recoveries. 1 Burr. 115. The Judges are astuti to support them. Pigot, 19. 37. 106, 107. 151. 167. If there be any error, still an erroneous recovery is good till it is reversed. Pigot, 169. 2 Vern. 131. A devise to trustees and their heirs gave the fee. 2 Atk. 131. 1 Atk. 473. 1 Eq. Abr. 382. The statute de donis does not apply to trust estates, and cestui que trust may alien by common conveyance. A conditional estate leaves at common law no reversion which the party can dispose of. Apply this to the devise of Charles Lord Baltimore. A possibility is not devisable. 1 Eq. Abr. 175. 2 Lev. 427. 16 Vin. 464. Where a person executes a conveyance and does not convey the whole, what remains is the old estate.

The seigniory is annexed to the territory. If the estates are trusts, still cestui que trust may exercise the rights of ownership over the thing. Uses may be executed [**87]  under lease and release. It is of no consequence in this case whether they be executed, or executory. The State was granted under the great seal since the statute de donis. All the qualities of the statute de donis extends to the grantees of the proprietary. How could he impart rights to them if he did not possess them himself. The right of Charles first was not an absolute fee-simple which descended on Lord Charles second, but only a reverter. It is admitted by all that Charles, by the deed of 1730, created a conditional fee. It is thus reduced to a single point, whether the reverter is devisable? It is a fixed principle that it is not, though no reason can be assigned. It might lay a foundation for suits and create lawsuits by assigning causes of action. The highest estate is a fee, and if granted under a condition, there is a possibility it may return. Where there is a feoffment on condition to go to Rome, there is the same chance of reverter as a death without issue; so in case of cscheat; but this chance is not devisable. A right of entry will descend but cannot be devised. If a person is disseised, he cannot devise his right of entry. The chance of escheat will descend. In the [**88]  case in 1 Vez. 180. the Chancellor determined it was not grantable. A possibility cannot be conveyed to a use; if it could, the will would be good. If this case is to be considered at large, we ought to decide on it as the law was deemed to be at the time. It is indifferent whether the first deed is good or not, and admits that a conveyance to trustees in fee gives them all the power of serving the different trusts as they arise. The limitation to the trustees could only be to preserve the contingent remainders, and immediately on the death of Charles, Frederick became tenant in tail, with a charge of 800l. per annum. A common recovery could not be suffered in Maryland for the whole province.

J. T. Chase, for defendants. The first settlement is good and valid. The act of assembly did not comprehend the case of the lord proprietary. What will become of the grants; will they operate by way of lease and release, feoffment, covenant to stand seised, &c.? If Lord Frederick had an estate-tail, how will his grants operate? They could not operate, unless to have the effect of barring the estate-tail. He could not give himself a power under the settlement, repugnant to the laws of the [**89]  province. If the estate for life was outstanding, the tenant for life had the seigniory. The grants made to these tenants, would of themselves bar the entail, independent of the deeds of 1761, or the recovery. Lord Frederick had a fee-simple conditional, and the interest in Lord Charles was such as could not be transferred. This trust or estate is to be considered in the same manner as it would have been antecedent to the statute de donis. A trust estate is not within the statute de donis. 2 Bl. Com. 335. What remedy had the wife to recover the rent but by a suit in chancery against the trustees? If this is not a trust estate, and trust estates are not within the statute de donis, then it is a fee conditional. 1 Bac. Abr. 68. 2 Ch. Cas. 63, 64. 1 Ch. Cas. 236. 1 Vern. 440. 1 Eq. Abr. 384. note. 5 Bac. Abr. 407. 1 Atk. 525. The interest which remained in Lord Charles could not be transferred. Pigot, 85. May be compared to an escheat. 3 Lev. 427. 1 Eq. Abr. 175.

Antecedent to the statute de donis, there could be no limitation on the conditional fee. Plowd. 248. shows the operation of the statute de donis. 2 Inst. 335. The only reason why a power of attorney requires acknowledgment [**90]  is to prevent fraud. Wherever an estate-tail is created, it is a necessary incident to it, that it should be barred in some manner or other. Common recoveries are common assurances. It is incident to an estate tail to be barred. Co. Litt. 224. Harg. Co. Litt. 223. b. note 1. 224. a. 2 Vez. 606. 1 Atk. 525. 1 Ch. Cas. 294. 1 Vern. 14. 2 Bl. Rep. 945. 1 Bac. Abr. 68. 1 Atk. 473. 2 Vern. 132, 133. Max. Eq. 56, 57. 2 Vern. 583, 584, 585. 705. If a tenant in tail of a trust suffers a recovery, it is a bar to the estate-tail, though there be no tenant to the pracipe. Gilb. Uses, 32, 33. Treat. on Fines, 209. 219. 2 Bl. Com. 360. If the patents granted by the lord proprietary did not bar the estate-tail, how do the tenants hold? If the recovery is suffered, still the widow has her claim against the recoveror. If she had an estate, who had the residue, beyond her 800l. per annum? Public notice was given, and no objection was made to the sale. An estate not subject to the power of alienation, is contrary to the object of the charter. Ch. Cas. 64. 78. 2 Vez. 606. 2 Bl. Rep. 945. Admitted that if a tenant for life is not a party, the recovery is not good.

Chase, for the defendants, cited [**91]  the following authorities. Vin. Grants, 36. pl. 3. 37. pl. 5, 6. 38. pl. 18. note. 39. pl. 25, 26, 27. Cro. Jac. 640. Cro. Eliz. 328. 2 Bl. Rep. 1250. 12 Mod. 186, 187. 2 Show. 1261. 794. Doug. 566. 2 P. Wms. 141. 2 Vern. 624. 3 Wils. 276. 2 Atk. 372.

If both the deeds are void, the plaintiff is barred by the act of limitations. The charter passing under the great seal, must be subject to the laws of England. The lord proprietor might have made any disposition of it in the same manner as any other person holding lands in England. The object of the charter was for the purpose of alienation. The settlement of 1698 is of the whole province; and if the proprietary had no other mode of conveyance than under the act of assembly, then all his grants are void. There is no reason why the deed of 1698 is not good. There was no legal nor trust estate during the life of Lady Mary. Immediately on the death of Lord Baltimore, Frederick took the estate. He exercised all the powers of government. A trust now is exactly what a use was before the statute. Agreed that by the deeds of 1730, an estate-tail was created a legal estate. But call the estate what you will, acts have been done to bar it.  [**92]  The law will invent some mode to bar all entails. A trust estate in tail may be barred by acts that would not bar a legal estate. The whole State could not be barred by any proceeding within the government.

Cooke, in reply. He recapitulated the manner of opening the case. He said it had been admitted by the gentleman who spoke last in the defence, that the lord proprietary might entail or settle this estate in any manner he thought proper, as any person holding land in England might do.

But that the counsel of the defendants seemed to have no corresponding ideas among themselves, what are the legal effects of these settlements. One seemed to contend they pass an estate-tail; another that they pass a conditional fee. Again, one gentleman contended the deed of 1698 is good; and he contended that Frederick Lord Baltimore was issue in tail under that deed, at the time of suffering the recovery in 1767, although he admitted that any mode of conveyance would bar the estate-tail; and the Attorney-General had expressly agreed before, that the deeds of 1730 destroyed all the limitations of the deed of 1678.

Mr. Cooke said, that if the proprietary could entail this province, he [**93]  might tie it up from alienation, under a strict settlement, in the same manner that any other estate might be restrained. That if any other estate restrained during a life in being would be good, so it was admitted such outstanding estate would prevent alienation in this case. He supposed the case of an executory devise. He observed that the gentlemen had offered no reason in support of the deed of 1698, but that one construction would destroy all the grants of the proprietary. Do they recollect that if they establish this to be a conditional fee, that every grant of Frederick Lord Baltimore is void| He never had issue, and therefore the sale to the defendants is void. When too they speak of the policy of the law, in promoting alienation, did they recollect that the same policy would operate against a conditional fee with much more force than against an estate tail?

He said that there appeared to be a distinction between common sales and transfers of property, and that of taking lands up under the conditions of plantations, under which this province was settled, and migrations encouraged; the case of sales is within these laws, but that of taking up vacant lands is not so. That [**94]  it was well known that patents have issued during the infancy of the patentees, and could be good on no other principle.

He supposed a bargain and sale had been executed by the proprietary. He then considered the case as a conditional fee.

To show that there was no merger of the term, he cited 1 Atk. 592.

That the trustee is to have an estate to serve all the trusts in the settlement, he cited 1 Atk. 592.

That a term is enlarged, (on a writ of error from Ireland,) after it had expired, he cited Cowp. 841.  

JUDGES:
Hanson, J.  

OPINIONBY:
Hanson 

OPINION:

 [*334]  Hanson, J. delivered the following opinion.
In my opinion the plaintiff's claim rests entirely on the devise of the second Charles Lord Baltimore in 1750, supposing nothing since done to bar his right of entry upon the death of Lord Frederick.
We are then to consider, first, whether or not Lord Charles second had any thing in Anne Arundel Manor which he  [*335]  was capable of devising, when he made the will under which the plaintiff claims.
And here the first thing to be done is to determine the validity, or nullity of the settlement in 1698. As to the deed of 1730 both parties have rightly [**95]  admitted that it had all the requisites of a deed; and they differ only as to its operation and effect.
To the deed of 1698 it is objected, that it was not acknowledged and recorded agreeably to the act of assembly, and of 1692. But although the words of that law are general, although the government of the province in the year 1698 was in the hands of the crown, I do not imagine, that, on just construction, the law extended to any kind of grants by the proprietary, whether they were grants on original surveys, or conveyances of any part of the province, before surveyed, and reserved to himself. The species of grant can make no solid distinction. Either the act of assembly comprehends all, or extends to no conveyance by the lord. And inasmuch as the patents issued during its existence, have been uniformly held good, it is now too late to call them in question. I consider then the settle-of 1698 originally good, although neither acknowledged nor recorded.
The interest of Lord Charles second in Anne Arundel Manor under that deed, I conceive, was an estate-tail with the reversion in fee. Lord Charles first by that deed had conveyed the province of Maryland, and the manors, [**96]  and certain lands in England to trustees, to the use of himself for life, remainder to his son Benedict, remainder to the issue male of Benedict and Lady Charlotte Lee, his intended wife, in tail male, remainder to himself in fee. Now as Charles first and his son Benedict, were both dead, and Charles second was the heir male of Benedict and Lady Charlotte, and the heir general of Charles first, it follows that at the time of the devise he had an estate tail in Anne Arundel Manor, with the reversion to himself in fee.
When I say this, I mean that the statute de donis extended  [*336]  to the lord proprietary's manors at least, if not to the province itself. Against this idea I have heard no argument which has the least weight in my mind. It would indeed appear extraordinary that a tract of land, or a manor in Maryland, whilst in the hands of the lord proprietary should not be subject to the statute, and that when it fell into the hands of an individual it should be subject to the statute. Whether or not the province itself might be entailed, is a question I hold not material in the cause. If it were material, I should incline to [**97]  a decision in the affirmative.
I mean likewise that Charles second had an estate in Anne Arundel Manor executed by the statute of uses. It has been said with truth, that that statute under, the decision of the Courts of Law, executes no more than the first use, where there is a limitation of a use upon a use; that where there is a limitation of a use upon a use, the second cestui que use has no remedy but in chancery, which will compel the performance of the trust, and that wherever there is a use, on which the statute does not operate, it is upon the same footing with all uses before the statute, which were never held to be subject to the statute de donis. But I am clear, that the interest of Lord Charles second was not a use upon a use. It is necessary here to distinguish a little. The true idea of a use upon a use is, where there are two uses limited upon the same estate, or the same interest in lands. As where the whole fee or an estate for life, or an estate-tail is given to A. for the use of B. in trust for the use of C., there the statute executes the possession in B., the first cestui que use, and goes no further; and the use limited [**98]  to C. is determined to be on the same footing, as it would have been before the statute. But where lands are given to A. in fee to the use first of B., for life and then of C. in tail, there the statute executes the possession in B. immediately; and upon his death, it executes the possession in C. In this case there is only one use limited on the estate for life, and one use limited on the estate-tail. In the other case there are  [*337]  two uses limited on the same estate for life, or in tail, or in fee, which the Courts of Law said was absurd, and therefore void. In short, the difference is between a use upon a use, and a use after a use. The statute will not execute a use, but it will execute any number of uses, one after another, as they arise.
Lord Charles second then at the time of making the devise to the plaintiff's lessor, being seised in tail with the reversion to himself in fee, most clearly had something which he was capable of devising; and that was the reversion, which unquestionably may well pass by a devise.
On the extinction then of the issue in tail, supposing the estate not before barred, the plaintiff's lessor became entitled [**99]  to enter. That extinction took place by the death of Lord Frederick in 1771, and the lessor was then entitled to enter, unless Lord Frederick had done something in his life to bar him.
When I say Lord Charles second was seised in tail with the reversion in himself, it must be understood, that I conceive the settlement of 1730 did not defeat the deed of 1698, because, under the deed of 1730, he would have had only an estate for life, remainder to his first, second, &c. son in tail male, reversion to himself in fee. But with respect to the operation of the devise, the plaintiff is precisely on the same footing, whether Lord Charles second was seised under the deed of 1698, or the deed of 1730. Under both or either he had the reversion in fee, and the devise was intended to give Benjamin Calvert all the devisor could give in the manor of Anne Arundel.
Having proceeded so far as to say that Lord Charles second had a reversion in fee, and that such reversion was well devised, it remains to consider whether any thing was done by Lord Frederick amounting to a legal and effectual bar.
The first thing on this head to be considered, is, by what method the proprietary's [**100]  estate-tail in a manor may be barred. In what way an estate-tail of the province itself might  [*338]  be barred, I consider as not material, although I accede most readily to the position, that every estate-tail whatever, and the reversion or remainder thereon, may be barred in some way or other. That the estate-tail in Anne Arundel Manor could not be barred by a fine or a common recovery, in the Court of Common Pleas in England, I think, has been admitted; but whether it was admitted or not, I am confident that no action in the Courts of Westminster ought ever to have affected lands in Maryland.
Supposing an estate-tail in the province itself, and an estate-tail of a manor in the lord proprietary to be on the same footing, there could, I conceive, be only four ways which could have been adopted for the purpose of barring it. 1. A common deed of conveyance, in the same manner as if the tenant in tail were tenant in fee; 2. A common recovery in the Provincial Court; 3. A fine on grant and render in the Provincial Court, in the same manner as is used by the king of England in the Common Pleas; 4. An act of assembly.
That it could not be barred by a common deed [**101]  of conveyance, as if the tenant were tenant in fee, I think must strike every disinterested person on reflection; because, if it could be barred in that way, it would be on the same footing in every respect as a fee-simple; and such a construction would give the lord proprietary a power, or a prerogative not enjoyed even by the king of England, his superior. On this subject it has been said, that if the proprietary could not bar the entail by deed, all ordinary grants by patent are on the same principle void. But I conceive from the charter of Maryland, and the object in granting it, and the manner in which it is to be enjoyed, that the person who holds the province, must for the time have the power of granting ordinary patents. So that the rights of patentees, their heirs and assigns are not at all involved in the decision of this question.
That the estate-tail (if such there could be) in the province itself might be barred by act of assembly, I suppose every one would admit. Whether a common recovery or a  [*339]  fine, would be most proper, or whether the proprietary might not choose either, for docking the entail of the province, is to be considered. I conceive that [**102]  either way would be proper, because either way was in use, and deemed right by the Court for barring entails of land held by common persons; and because it seems that where the law has not already prescribed a mode, it will recognize the mode chosen by the party, provided it be convenient for the purpose.
I cannot, however, conceive that an entail of the province, and an entail of a manor in the hands of the proprietary, are on the same footing. It is the recovery of Anne Arundel Manor with which we are concerned. Had a private person been seised in tail of this manor, there is no question that he might have suffered a common recovery. Common recoveries in Maryland were as usual as in England; and it would be vain at this time to question the propriety of that mode of barring estates-tail, reversions, and remainders.
To the recovery by Lord Frederick there are two objections. 1. That the lord proprietary being on a footing with the king of England, could not suffer a recovery in his own Courts; 2. That he did not suffer it in person; and there was not a good attorney.
As to the first objection, it has been settled that Lord Baltimore might sue in his own [**103]  Courts; and if it be not absurd for him to be plaintiff in his own Courts, it is not absurd for him to be defendant. The whole absurdity is supposed to arise from the style of the writ, and the submitting to his own Judges and officers. There might, indeed, be a very powerful objection against Lord Baltimore's being subject to his own creatures, if there had been any other mode for him to sue and be sued. That he might and did sue in his own Courts is a point well fixed and ascertained, and, in my opinion, when this point was fixed, it determined at the same time that he might be sued.
Having said that Lord Baltimore might sue and be sued in his own Courts, it does not remain to be considered, which was the best method to be adopted for barring entails,  [*340]  in a case not before provided for. The verdict states, with truth, that both fines and common recoveries had been commonly used in the province, at the time when the recovery in question was suffered; and Lord Frederick was as free to make his choice between them as any other person.
As to the second objection to the validity of the recovery, namely, the want of a good warrant of attorney, it is, I conceive, [**104]  hardly entitled to a remark. When it appears from the record, that an attorney was admitted, it is too late to say, that although he was really the attorney of Lord Frederick, he ought not to have been admitted. Perhaps the commission of attorney-general was alone sufficient. Common recoveries are common assurances; and I believe there is no instance of determining a common recovery to be void merely for want of form, when all the parties requisite to the recovery appear to have joined in it. In short, the case before the Court, I apprehend to be far more important on account of the value of the thing in contest, than difficult of decision. The ingenuity of the counsel on each side has been displayed in raising points, many of which I deem immaterial. As to the point suggested by the Court, whether or not Benedict Calvert can take by a devise to "Benjamin Calvert, Esquire," without any other designation whatever, I conceive to be the most difficult of all which have been raised, and it would have been still more difficult for the plaintiff's counsel to support, had the verdict stated the whole truth, viz. that in England, where the will was made, there were [**105]  several persons of kin to the devisor, who bore the name of Benjamin Calvert. However, as this point is immaterial for the defendants, on the supposition that the other points are in their favour, I shall give no further opinion about it. I have, indeed, ever made it a rule to determine nothing more than is absolutely necessary, and to leave those points which are foreign from, or immaterial to, the cause in hand, to be discussed in causes wherein a decision upon them may be essential.
 [*341]  The Court gave judgment on the special verdict for the defendant. And,
The Court of Appeals, at June term, 1792, affirmed the judgment of the General Court.
Francis Hargrave, Esq. the author of the Notes upon Coke Littleton, having been applied to on behalf of the lessor of the plaintiff, during the pendency of this ejectment, gave the following opinion:
My thoughts on Mr. Calvert's case, and on the proper manner of arguing for his title to the estate of Anne Arundel Manor, in Maryland, being desired immediately, I am forced to express myself with great haste, and in more general terms than I should use, if the time necessary for considering [**106]  a subject with so much importance and novelty in it had been allowed. I therefore desire to be understood, not as drawing out a regular and formal account of all the arguments and authorities incident to the case, but merely as giving a general view of my present ideas. It is probable that many new lights may occur to me in future, and if it should be required, I shall be very ready to communicate them.
The case between Mr. Calvert and the grantees of Frederick Lord Baltimore, in respect to Anne Arundel Manor, is subject to a consideration very different from that which would arise, if the title to the whole province of Maryland should ever be contested by his sisters and heirs, against his devisee; and as I think that pointing out what the difference is, will tend to give the best idea of Mr. Calvert's situation, I shall begin with so doing.
As between the devisee of Frederick Lord Baltimore and his heirs, there would be two great questions. One would be, whether the province of Maryland is entailable and devisable; the other would arise only on the supposition that the property was entailable and devisable, and it would be, whether the means made use [**107]  of by Frederick Lord Baltimore for barring the entails were effectual. If his sisters  [*342]  and heirs could succeed on either of these questions, it would be equally fatal to his devisee; though the consequences to the former would depend on the principles on which the decision against the heir should be founded. If the province should not be deemed either entailable or devisable, the two sisters of Frederick Lord Baltimore would take as general heirs of Cecil Lord Baltimore, the first grantee of the province. If it should be held that the province is entailable and devisable, but that the several entails are now subsisting for want of a sufficient bar, still the devisee of Frederick Lord Baltimore would be disappointed, because then on his death without issue, the reversion in fee of his father the second Charles Lord Baltimore, became an estate in possession, and consequently vested, according to his will, by which it is limited, on failure of his son Frederick's issue, to his own daughter, Mrs. Browning, in fee, subject to the payment of 20,000l. to her sister, Mrs. Eden. In observing that the reversion in fee of the second Charles Lord Baltimore [**108]  came into possession upon the death of his son Frederick, I take it for granted that there is not either Cecilius Calvert, the brother of the second Charles, or any other issue male of Benedict their father, living, to claim the estate in tail male, limited to Benedict's first and other sons by the marriage settlement in 1698, which appears to have been the first entail of the province. I say that I take this fact for granted, for if the property is entailable, and the several entails still remain undisturbed, and there is any issue male of Benedict still living, such issue would have a good title as well to the Anne Arundel estate as to the rest of the province, against every other claimant. Such would be the two questions as between the sisters of Frederick Lord Baltimore and his devisee, and the different consequences of a decision against the latter, according to the principle upon which the case shall be determined. But one only question can, as I conceive, arise between Mr. Calvert and the grantees of Frederick Lord Baltimore, which would be, whether either of the modes adopted by him for barring the entail  [*343]  of the Anne Arundel [**109]  estate is sufficient in law. Both Mr. Calvert and his adversaries must agree that the property is entailable and devisable. If it is not neither claimant has a title, but the estate clearly belongs to the heirs general of Cecil Lord Baltimore, the first grantee of Maryland, which heirs are Mrs. Browning and Mrs. Eden. The Anne Arundel estate being then admitted to be entailable and devisable, Mr. Calvert will be entitled, if the acts done by Frederick Lord Baltimore for barring the entail, are inefficient, because the estates-tail limited to the issue male of Benedict Calvert, by the settlement of 1698, and to the issue male of the second Charles Lord Baltimore, by the settlement of 1730, are both determined for want of objects, and the reversion in fee expectant on those estates-tail is now come into possession, and is vested in Mr. Calvert, under the will of the second Charles Lord Baltimore.
This brings me to the modes by which Frederick Lord Baltimore endeavoured to destroy the subsisting entails of Anne Arundel Manor, and to gain the fee of it. One mode was the conveyance by lease and release; and I conjecture that this [**110]  was adopted in consequence of a supposed resemblance between the property in question and another species of property of which the entail is certainly barrable by simple alienation.
If a lease is granted to one and his heirs during lives, such a descendible freehold, though not within the statute de donis, is in effect, entailable; and it is now well settled by a variety of adjudged cases, that the entail of a descendible freehold may be barred by mere alienation, whether by lease and release, or any other valid conveyance of a freehold. Why such an alienation is deemed to bar the entail of a descendible freehold, will best appear from reading the series of determinations on the subject. These, as well as I am able to collect them at present, will be found by examining the following references.  2 Vern. 184, 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259, 376. 2 Ves. 681. 3 Atk. 464.
 [*344]  The shortness of the time prevents me at present from giving due attention to the cases which I refer to; but I am inclined to think, that the origin of holding alienation to be a bar of the [**111]  entail of a descendible freehold, was the mode of barring the donor and the issue of the donee in the case of a fee conditional at common law. Before fees conditional were converted into estates-tail by the statute de donis, the donee's alienation, after performance of the condition by the having of issue was effectual, both as against the donor, and the issue of the donee. This most probably was what first suggested the idea of attempting to bar the entail of a descendible freehold by lease and release, which, by force of the statute of uses, is a mode of alienation as legal as feoffment, or any other common law conveyance. At length, the validity of thus barring an entail by alienation, was brought into question in the Court of Chancery, and there it being allowed, that a descendible freehold was entailable, though not strictly within the statute de donis, the Court was driven to the necessity of acknowledging some mode of barring the entail; and as a common recovery could not be suffered of a descendible freehold without a forfeiture of the estate, and as a fine, in most cases, is not sufficiently extensive in its operation, simple alienation of the property seemed to be [**112]  the only mode left for the choice of the Court, and was with less scruple adopted, as having been already applied to the case of fees conditional at the common law. It may, however, be observed, that it would have appeared more conformable to the principles of the common law, if, in consequence of holding descendible freeholds entailable, though not strictly within the statute de donis, the Judges had deemed them totally subject to the same consideration as fees conditional, and had declared that alienation should not be a complete bar of the entail, till after the having of issue. But the doctrine is now settled otherwise, and it is only necessary, on Mr. Calvert's part, to show an essential difference between the case of a descendible freehold, and that of Anne Arundel Manor, between the  [*345]  lord proprietor and others. Feigned recoveries are liable to the same consideration as recoveries really adverse. The former can be prosecuted only where the latter may be. In England the only Courts for original suits to recover the freehold and inheritance of land, is the Court of Common Pleas. In that Court only really adverse recoveries of the freehold [**113]  and inheritance can be had; and, therefore, in that Court only, can common or feigned recoveries be suffered. The rule must be the same with respect to land in America. Whatever the Court is, in which suits for the freehold and inheritance of land in Maryland, between the lord proprietor and others ought to be prosecuted, that must be the Court for every common recovery to which he is made a party. Now, on the part of Mr. Calvert, it should be insisted, that though the Courts of Justice in Maryland are certainly, in general, the proper jurisdiction for trying the right to land in Maryland, yet they are not so in the particular case of the lord proprietor. I apprehend that the Courts of Justice in Maryland, for trying the title to land, are the Courts of the lord proprietor who happens to be in possession; that the Judges are appointed by him, and are removable at his pleasure; that they exercise their jurisdiction as his delegates; that the process of the Courts runs in his name; and, in short, that they are in every sense of the words, the Courts of the lord proprietor, as much as if he presided in them, and administered justice in his own [**114]  person. Is it possible that Courts so constituted, should be the proper jurisdiction for trying suits in which the lord proprietor is either plaintiff or defendant? Would not the allowance of such a jurisdiction, in effect, render the lord proprietor a judge in his own cause? Is it agreeable to natural justice, that a judicature so partial should be established? Could it be the intention of the crown, in granting the charter under which the Courts of the lord proprietor are erected, to extend his jurisdiction to causes in which he is a party; or if such was the intention of the crown, could it be within the power of the crown to invest him with such  [*346]  a jurisdiction; or rather was it not contrary to the fundamental principles of the English law and constitution, to make the lord proprietor a judge in his own case? Is there any instance, except the single case of the king, in which the law of England permits any person to be the judge of his own cause? The words of Lord Hardwicke, in the case between the Earl of Derby and the Duke of Athol, on the title to the Isle of Man, as reported by Mr. Vesey in his second volume, 204. are very [**115]  strong against such jurisdiction. He says, "the question here is to the title and right to the whole island, which cannot be determined in the Courts of Man, because that would be permitting the persons who claim the seigniory of the isle to judge in their own case."
But if the Courts of the lord proprietor cannot take cognisance of suits to which he is a party, it may be asked, what is the jurisdiction which must be resorted to? Some Court there must be, to prevent a failure of justice; and it seems incumbent upon those who deny the competency of the proprietary Courts, to point out another jurisdiction which is competent; and this I think may be easily done in the case in question, which is that of a suit for the freehold and inheritance of land in Maryland. There are only two Courts, exclusive of the Courts in America, which can pretend to a jurisdiction over such suits. These are the Court of Common Pleas in England, and the Court of the King in Council. Whether the jurisdiction belongs to both concurrently, or to one only; or if to one only, whether the former or the latter has the better title, is wholly immaterial to Mr. Calvert, because if either [**116]  has the jurisdiction, his purpose is answered. But it seems clear that from the nature of the Constitution, as well as from authorities of law, that the jurisdiction is vested in the King in Council only. America is out of the realm of England, but the process of the Common Pleas is confined to England, and that Court cannot issue writs for the delivery of the possession of lands in America. But the same objection will not apply to the King in Council. The appellant jurisdiction of the  [*347]  king in council, with respect to all civil causes from America, has been exercised ever since the establishment of our colonies, and is not now to be called in question. It arose at first from the necessity of the case, and because there was not any other Court which seemed to have the least pretence for claiming such a jurisdiction. The like necessity will equally justify at least the exercise of an original jurisdiction. If there are special cases of suits for land in America to which no court there is competent, and the ordinary Courts of Justice in England cannot entertain them, what jurisdiction can be resorted to, except the king in council? The title [**117]  of the king in council to an original jurisdiction in such case, would be reasonable and constitutional, even though the privy council was not already in possession of an appellant jurisdiction over causes from America; but the latter being now settled, is a fair precedent for admitting the former, wherever the reasons on which the latter was first allowed, strongly and fully apply. This kind of reasoning seems so forcible, that perhaps that, unassisted by positive and direct authorities, it might be sufficient to prove the original jurisdiction of the king in council over such suits for land in America, as, for any special reason, cannot be prosecuted in the Courts there. But authorities and precedents of law are not wanting. In the reign of Queen Elizabeth, there was a controversy about the title of the Isle of Man, between the then Earl of Derby and the daughter of the preceding Earl, and it appears by the reports which we have of the case, that the proceeding was before the king in council, and that by his command the matter of law was referred to the lord keeper of the great seal and divers of the privy council, and the two chief justices, and [**118]  the Chief baron Lee. 2 And. 115. 4 Inst. 284. The case of America is of the same kind, when there are contests between one province and another province about boundaries, or between two competitors about the title to the whole province. Accordingly, Lord Hardwicke, in the case of Penn and Baltimore, 1 Ves. 447. mentions the original  [*348]  jurisdiction of the king in council in such cases, and others of a similar kind, as a thing certain. If it should be attempted to distinguish between a suit for the whole province of Maryland, and one for a parcel of land within it, the proper answer I think is, that whatever difference there may be in other respects, they are the same so far as regards the impropriety and illegality of allowing a jurisdiction to the court of the lord proprietor in his own case. Lord Hardwicke held that reason alone to be sufficient for denying the jurisdiction of the Court of the Isle of Man, over suits for the seigniory of that isle; and where the lord proprietor of a province in America is party to a suit, the reason is as applicable to a suit for a part of the province,  [**119]  as a suit for the whole province. There may perhaps be other reasons why the Court of a province in America should not be competent to a suit for the whole province, such as are not applicable to a suit for part of the province. But if the lord proprietor's being a party, is of itself a sufficient objection to the jurisdiction of his own Courts, it becomes unnecessary, on Mr. Calvert's part, to seek for assistance from those other reasons, and he will not be affected, even though they should not extend to the Anne Arundel Manor. I have now finished the arguments against the common recovery suffered by Frederick Lord Baltimore in his own Court, and in order to give them all possible force, I recommend it to the gentlemen concerned for Mr. Calvert, in America, very carefully to peruse and consider the case of the Earl of Derby and the Duke of Athol, in 1 Ves. 202. That of Penn and Lord Baltimore, in the same book, 444.; and the case in respect to the Isle of Man, in 2 Ves. 337. From the whole of what I have written, which is much more than I expected it would have been when I began, it appears [**120]  that there are two great and general propositions proper to be insisted upon for Mr. Calvert, one is, that a common recovery was the only mode by which Mr. Calvert's reversion in fee in the Anne Arundel Manor could be barred. The other is that the recovery suffered by Frederick Lord Baltimore was not suffered  [*349]  before the proper jurisdiction, and consequently is ineffectual. If both these propositions can be supported, Mr. Calvert's title seems uncontrovertible; but if either fails, I think that he cannot succeed in the ejectment he has brought.
I have not observed any thing in respect to the mistake of Mr. Calvert's christian name in the will under which he claims, because I apprehend that there cannot be the least doubt of his right to prove the mistake by parol evidence.
FRANCIS HARGRAVE.
Lincoln's Inn, 17th January, 1774.
Continuation. If what I have written in respect to the origin of holding alienation a bar of the entail of a descendible freehold, is well founded, it is evident that it is held to be so, from the necessity of the case, and because there was not any other mode which the Judges had any pretence for allowing. But [**121]  how is the doctrine applicable to the case of the Anne Arundel Manor? In that there is an estate of inheritance, it is entailable within the statute de donis, and a common recovery may be suffered; for there must be some jurisdiction competent to the trial of suits about the inheritance of the estate, and if there is, common or feigned recoveries may be prosecuted before that Court as well as real recoveries. Alienation is a bar of the entail of a descendible freehold, because a common recovery cannot be suffered: but alienation is not a bar of the entail of Anne Arundel Manor, because a common recovery may be suffered.
It is not necessary to inquire here which is the proper Court for such a recovery. In this part of the argument it is sufficient that there must necessarily be some Court in which a recovery may be suffered.
The second mode which Frederick Lord Baltimore made use of for barring the entail of Anne Arundel Manor, was a common recovery in his own Court, as lord proprietor of Maryland. Here it should be insisted that so far as regards the kind of jurisdiction which is competent to the trial of suits for land.

 [*350]   [**122]  Notes concerning the rights to the province of Maryland, by the late Daniel Dulany, Esquire.
Lord Charles seised in fee of the province of Maryland, on the marriage of his eldest son Benedict, conveyed to trustees to the use of Lord Benedict, for life; remainder to the trustees to preserve contingent remainders; remainder to the first and every other son of Lord Benedict, in tail; remainder to his own right heirs. Lord Charles, the eldest son of Lord Benedict, became seised in tail male, and having the reversion in fee on his marriage conveyed to trustees to the use of himself for life; remainder to trustees above; remainder to his first and every son in tail male; remainder to his own right heirs. Having issue of the said marriage, Frederick, now Lord Baltimore, and two daughters, Louisa and Caroline, he devised the province of Maryland to trustees to the use of his son, Lord Frederick, for life; remainder to the trustees above; remainder to his first and every other son in tail; remainder to his eldest daughter Louisa, in fee, chargeable with 20,000l. sterling, payable to his daughter Caroline.
Note. By the settlements [**123]  above, besides the province, other rights, such as the tonnage, are conveyed to the above uses, and by the will the province only is devised.
Frederick Lord Baltimore, on his marriage settled by deeds, in 1753, by conveyance to trustees, as above mutatis mutandis. His lady being dead without issue, all the purposes of the deeds of 1753 are answered, so that he had such estate as before the deeds of 1753. In 1761, by deeds of lease and release, Lord Frederick conveyed to trustees to the use of himself, &c.; remainder to the use of Cecilius Calvert, &c.; remainder to such use as he should appoint by deed to be executed in the presence of two witnesses, or by will, and in default, to the use of the persons named in the will of Lord Charles.
It is said that Cecilius is dead without issue, though I  [*351]  well remember an intimate friend of his (Mr. Anderson of London, merchant) told me Mr. Cecilius Calvert assured him he was married, and that he had a son born in wedlock; that son is now alive, but it is said he is not legitimate. However, to proceed on supposition of the death of Cecilius Calvert without issue.
The question will [**124]  be, whether Lord Frederick can bar by any act, and whether he has, by the deed of 1761, barred the right of Louisa under the will of her father, her father having the reversion in fee, if the province is clothed with a capacity of entail.
It is said, indeed, to have been the opinions of Mr. Jardrell, Mr. Wilbraham, and others, on a case stated by Mr. Benedict Calvert, to whom Lord Charles devised Anne Arundel Manor, and also the opinions of Lords Northington, Camden and Sir E. Wilmot, on the marriage of Lord Frederick, that the devises to Louisa and Benedict Calvert, were to take effect only on the death of Lord Frederick, within age, and without issue. On perusal of the will of Lord Charles, I can find nothing to justify this construction.
Is the province entailable?
First point. Is the seigniory a subject capable of entail?
Second point. Does the statute de donis, &c. or do the rules of the common law govern?
1st. I apprehend the subject is capable of entail. It is included within the term used in the statute de donis, viz. "tenements," which comprehends all corporeal hereditaments, and incorporeal,  [**125]  which savor of the realty, which issue out of corporeal, or which concern, are annexed to, or are exercisable within the same. Co. Litt. 19, 20. Offices and dignities which concern the realty, or have relation to certain places, are entailable. 7 Co. Rep. 33.
2d. I apprehend the province is within the statute de donis, &c.
Lord Macclesfield, perhaps, went too far in saying that the law we call common law was originally introduced by statutes  [*352]  which have been lost; but probably a great deal of this law was introduced by statutes. Vide Hale's Hist. of the Common Law.
It is a general rule that nova constitutio futuris formam debet imponere non preteritis: had the charter been granted before the statute de donis, &c. then, according to the rule, 1 Inst. 9. 4 Inst. 201. 284. 2 And. 115. the common law would govern, being the law of England; but the grant has been made since, and at a time when the common law was altered by the statute, and therefore according to the rule above mentioned not being the law of England, it cannot govern the charter.
There does not appear to me to be any ground for contending, that such a limitation [**126]  as would make an entail of lands in England, will make a conditional fee when applied to the province, i. e. that the grant of the province ought to be governed by a law which did not exist in England when it passed the seal, merely because it once did exist.
If the rules respecting estates of inheritance at common law were not, according to Lord Macclesfield's doctrine, introduced by statute, yet, without doubt, considered as lex non scripta the law might be as effectually abolished by statute, as if it had certainly been lex scripta.
Put the case that the estate called fee conditional had been introduced by statute in the time of Henry VIII. and that it had been altered to an estate-tail by a statute of Edward VI. there could be no reason to say, that the charter granted by Car. I. should be governed by the statute Hen. VIII. and it seems to me that mutatis mutandis, the same reasoning applies to the case.
It is commonly said that the common law, and such statutes of a general nature suitable to their circumstances as were made before their settlement extend to the plantations. This is to be understood in reference to the rules obtaining [**127]  in the plantations, and even in this respect, it would be a strange incongruity to say that when the common law is  [*353]  abolished by statute, both the common law and that statute extend hither; that is, that estates of the same nature should be governed by opposite or different rules.
It may be inferred from the several settlements that the advisers of them were of opinion the grant was affected by the statute de donis, &c. the purposes and provisions intended to be made would not otherwise have been answered. The remainders limited after the determination of the estates limited to heirs of the body would have been void. From the charter, moreover, it may be inferred that the statute de donis was understood to extend: for parcels are thereby grantable in tail, as well as in fee, but if the entirety be not entailable, on what principle are parcels?
If the province be not entailable, neither is it devisable, i. e. if the statute of Edw. I. does not extend, neither does the statute of Hen. VIII. extend to the case.
There possibly may be another question, should a will be made according to the statute of Hen. VIII. and not according to the statute of frauds [**128]  and perjuries, the latter act having passed subsequent to the charter.
Supposing the province entailable, the next question will be, whether the estate-tail be barrable or not? It is clearly not barrable by fine or recovery, either in England or Maryland; is it then barrable any other way? By act of parliament it certainly is, and it should seem from the writings in 1753, that this method was advised as the proper one; but this cannot be called a remedy; it is not a power incident to the estate. It might be refused or granted.
The question then is brought to this, is it barrable by common deed?
It may reasonably be inferred from the settlements that it was not so understood: what security of family provision, the great object of settlements, if the estate barrable by common deed?
If thus barrable, then the tenant in tail would have a power over his estate excluded by the statute de donis: he would have a power too, that did not belong to a fee conditional  [*354]  at common law: for one having such estate could not bar, but post prolem suscitatam.
But if not barrable by common deed, then a perpetuity, which it is said the law has so great an abhorrence of, as [**129]  not to allow it in any case.
Here is the stress of the objection. The entail of a copyhold, it is now settled, is barrable one way or another by recovery, surrender, or forfeiture and regrant, and that whether there be any custom for it or not; and the very principle thereof is, that there may not be a perpetuity, which the law abhors.
Hence it is argued, that as a copyhold is barrable by surrender, &c. on account of the imbecility of the estate, so the province by common deed on account of the magnitude of it, and that the same reason applies in both cases, the avoidance of perpetuity.
It was certainly the intention of the statute de donis to create perpetuity; but policy found out a fiction by which that intention was defeated.
The same policy has at length determined all copyholds to be barrable one way or another; and it is no wonder it should, if what is said in the book called Lex Maneriorum be true, that the greater part of the estates in the kingdom are copyhold, or customary estates.
In what did the policy consist? In giving a power, by which there might be a circulation of property preventive of too great influence, and encouraging social industry; but, perhaps,  [**130]  the reason does not apply in the present case, which is of a very peculiar nature, and it might not be proper to allow a power of alienation when the purpose for which it is allowed in other cases does not occur.
By the power of alienation, in the above instances, lands were split and divided, and instead of being in the hands of one fell into the hands of many: thus too great influence was guarded against and a general encouragement to industry was given. Had there not been this effect, had lands passed entire from one to another, the end would not  [*355]  have been answered. The province is an entirety. It cannot be split and divided: the lands within it are alienable, and devisable. If there was not a power in all the settlements to grant out in parcels, perhaps, considering the nature, end, and view of the original charter, considering the express power given by it to grant parcels in fee, tail, &c. such power would always attend the propriety. If there would not be such an incidental power, at present there is no objection to the settlements on this head, because it is expressly given.
This being a peculiar case, the objection from the abhorrence of perpetuity has the less [**131]  weight, and the rule is laid down too largely, that to every estate-tail there is necessarily a power of barring it belonging to the owner.
A common recovery cannot be had of the province in Maryland; for the very instant the Judges should give judgment, they would of course determine their own commission. If Lord Baltimore had no right to the province, which the recovery would suppose, he had no right to appoint the Judges; in England there could be none, for the subject ought to be there in some county.
The peculiar situation of the subject is such that a praecipe will not lie.
Is there no case where there is an entail not barrable? Such is the case of the king. The king is bound by the statute de donis. He cannot suffer recovery because no Praecipe will lie. He cannot bar by letters patent. William v. Lord Berkley, Plowd. Comm.
In the case of a dignity entailed, it is not barrable, though within the statute de donis. The policy does not apply to it.
Perhaps it may be surrendered: but this may be refused, and therefore not in his own power.
If this may be surrendered, why not the province? In case of surrender, the issue may have a constat [**132]  out of the enrolment. Bro. Sur. pl. 51.
 [*356]  The tenure is by free and common socage by fealty only for all services, and not in capite, or by knight service.
Had there been no tenure reserved it would have been of the king in capite.  Vide 9 Co. 123. Bro. Tenures, pl. 3. 65.  6 Co. 6. b. Perk. s. 680. Bro. Tenures, 100. Dyer, 44. pl. 29. 58. pl. 6.
As the tenure is, no license is necessary: according to this idea is the statute of William III. which restrains the alienation of assignees to a foreigner without license of the crown.
Though the province or propriety be entailable, yet the tonnage clearly is not, for it is not a tenement. Lord Charles has not disposed of it by his will. With respect to this therefore Lord Frederick may dispose by will or deed. A conditional fee and reverter cannot exist at the same time in the same person, but the having the former is an extinguishment of the latter.
Lord Frederick had a power to grant out parcels, and so had his father. In all these grants, the rent has been reserved to the grantor and his heirs, without any reference to the power,  [**133]  or to the settlements. The validity of these grants will not, I hope, be questioned. The rents could only be reserved to the grantors, and their heirs; a reservation to any other would have been void.
Lands have escheated, and been granted out under rent reserved as above.
On the supposition that these grants are good, the parcels granted are severed, and the rents being reserved to the grantors and their heirs, belonged to them, and that being so, are not affected by the settlements, and, consequently, might be disposed of by deed or will; but yet this could hardly be the intention of the settlements, and especially when the restriction annexed to the power in respect to the quantum of the rent is considered.
The subject being peculiar, it is no wonder that every contingency was not provided for.
Where there is a particular estate of the seigniory and an  [*357]  escheat of the tenement, the seigniory is extinct; but who shall have the tenement? It seems reasonable that there should be such respective interests in the tenements as there were in the seigniory. In Fitzherbert's N. B. it is said that he who has the seigniory for life may enter, but not what he shall take.  [**134]  In Keilway, 114. or 141. it is said if he does not enter, he in reversion cannot, but may have his writ of escheat, and it is said it was his fault he had connection with one who neglected to enter; but if the tenement on the entry should entirely belong to the person having the particular estate, it would be improper to say that he in reversion suffered by the neglect of the other, since he would gain by it in having it in his power to recover by writ of escheat.
In the case of forfeiture of copyhold, it is said the dominus pro tempore shall have it. In the case of purchase made by a villain, one having a particular interest shall have the land entirely. Quaere hereon.
Suppose the province should devolve on the two sisters, of Lord Frederick by descent, what would be the consequence? In the case of the crown, the elder would succeed, and for a very good reason, which seems very strongly to apply to the province, though not entirely. In the case of the crown, the inconvenience of two of equal power and authority, differing in opinion, would be intolerable; there would be no superior to redress it. But not so of the province, for the sovereignty being in the king,  [**135]  the royal interposition might redress.
In the case of dignity, which is not partible, it may be conferred by the king on either of the sisters. Some hold that until the king confers, it descends to both; others that it is until then in abeyance. The earldom of Chester descended to females, the possessions partible, but not the dignity. Vide Co. Litt. Black. Comm. In the case of office, the sisters to appoint a deputy; but if the elder marry, her husband shall officiate. Vide Co. Litt.
In the case of a manor descending to females, it is partible, and each has a manor and court-baron; and in the case  [*358]  of the county palatine of Leinster, partition was made among four females, and each had a severed county palatine. Dav. Rep. 61. The idea of division, considering the nature of the subject, seems very strange.
If between two sisters, then between fourteen; so many distinct governments and legislatures; should the whole fall afterwards to one, what strange confusion|
If a female married, and having had issue by her husband, dying, he tenant by the curtesy, there would be no inconvenience in this. Suppose a proprietor leaving a wife entitled to dower, what [**136]  would be the consequence? Vide Godb. 135. Co. Litt. 30.
County palatine has jura regalia; royal jurisdiction and seigniory severed from the crown. Vide Plow. Comm. 215. b. Dyer, 321. 345. Dav. Rep. 62.
The power, king like, may pardon treasons, felonies, &c. make judges, &c. indictments, &c. and process, in their name. Vide 4 Inst. 204. 2 Lutw. 1235. The bishop of Durham in loco regis; county palatine had tam libere per gladium, prout rex Coronam. Vide 1 Bulst. 160. 2 Bulst. 227.
Though exercised here very extensively in erecting Courts of Equity and Admiralty, yet the power of erecting jurisdictions seems to be confined to the common law. The words of the charter, it is true, are very large, but it seems that the king cannot give power to erect such Courts. Vide 12 Rep. 51. Jenk. 285. pl. 18.  10 Mod. 125, 126.
By the 27th Hen. VIII. c. 24. the power of making judges and pardoning offences, and the style of indictments and process altered. Quaere. The extent of this statute, and how far the charter of Maryland affected by it.
The province of Maryland is [**137]  no part of the realm, nor of Hen. VIII.'s dominions; if, therefore, it is affected, it must be by an equitable construction: the long usage should operate against construction.
Suppose a feme covert to have the seigniory and proprietary; in whose name are laws and process to be had? In the case of the crown, as in the time of Queen Anne, married to  [*359]  Prince George of Denmark, in her name, her husband a subject.
How shall grants be made effectual to bind her and her heirs?
So much embarrassment and inconvenience on same events, may arise on account of the peculiarity of the case, that probably the government as well as of man, and as well by the letter as the spirit of the above statute of Hen. VIII. may fall into the hands of the crown.
By the statute quia emptores terrarum, the tenure should be of the king, on grants made by the proprietary. Quaere. The non obstante clause. Vide 1 W. & M. sess. 2. c. 2.
The last proviso in this act clears it up. The construction of Lord Charles's will does not seem to me maintainable. There is not a syllable of the death of Lord Frederick in his minority, and I think it would be going [**138]  much too far to supply these words by the argument, "otherwise Lord Charles meant an act of injustice to his son."
The statute de donis, &c. passed in the time of Edw. I. and before the time of Edw. III., Count was the only name of dignity and honour in England. The titles of Duke, Marquis, and Viscount, are of later times. The first Duke in the time of Edw. III., the first Marquis in Richard II., and the first Viscount in Hen. VI. The name or title of Baron is not of dignity, or addition. Dav. 60. Vide Co. Mitton's case.
5 Edw. III. 58. Fitz. Jurisdiction, 61. 1 Edw. IV. 10. 45 Edw. III. 17. 5 Edw. II. Fitz. Quare Impedet. 12 Eliz. Dy. 288.
Another opinion of Daniel Dulany, Esquire.
I must confess that I had great doubt of the power of Lord Frederick to devise the province, not because I thought it to be unalienable, or not entailable; but because I was not satisfied of his power to bar the reversion devised by his father to Mrs. Browning. What follows may serve to explain why I entertained this doubt.
 [*360]  The name of the lord proprietary is used in all process in Maryland, as the king's [**139]  is in England. Indictments charge offences to be against his peace, good rule and government. Provincial laws are enacted in his name by and with the advice, &c. The king's name is never used in Maryland, in executing or enacting any laws. Even prosecutions upon the penal statutes of England are in the name of the lord proprietary. All lands in Maryland belonging to the inhabitants are entailable, and estates-tail, remainders and reversions are barrable by common recovery in the provincial court. The charter of the province was long after the statute de donis. The charter speaks of grants in tail. It has been the usage and practice to entail lands, and bar by recovery in the provincial Court. This usage has been referred to, recognized, and confirmed by acts of assembly. Very many titles depend thereon; the statute de donis and mode of conveyance by common recovery are observed as established rules of property, and so of the statutes of uses and of wills. The oath of judges prescribed by act of assembly is to do equal right according to the laws, customs and directions of acts of assembly, so far forth as they provide; and where they are silent, according to [**140]  the laws, statutes and reasonable customs of England, as used and practised within this province.
Land is granted to the king in tail, remainder to A. B. in fee, the king cannot bar the remainder by common recovery, neither can he bar by grant. Plowd. Comm. Willion v. Lord Berkley, and the case of Altonwood in Co. Rep.
Perpetuity is odious. Many million of acres of land are contained within the boundaries of this province; but the property is principally in tenants paying a quit-rent, who have as full power to bar by recovery in the provincial court as any in England to bar in C. B. This property is most open to alienation.
If the lord proprietary could not suffer a common recovery, though every inhabitant may as above, it seems to arise from his exercising regal powers under the charter, and being  [*361]  considered in loco regis. Indeed I cannot conceive how a common recovery can be suffered by the lord proprietary of the province. The Judges derive their capacity, as such, from his appointment, and should a recovery be suffered before them of the propriety, and he thus cease to be lord proprietary, they, too, must cease to be Judges. The [**141]  existence of their judicial power would be incompatible with a judgment against the proprietary under whose commission they are Judges. As to his suffering a recovery in England, it seems to be a strange notion. It is said there are precedents of recoveries in C. B. of lands in the plantations; but if there have been under act of assembly; but there is no such act in Maryland. If Lord Baltimore could not bar by common recovery, neither can the king; and yet if Lord Baltimore might bar by lease and release, though the king cannot by grant, the following doctrine is the result.
Every person having an estate-tail in land in Maryland may bar that estate and a remainder thereon, and reversion in the same and in no other manner in the Provincial Court, that a person in England having a similar estate there, may in C. B., except the lord proprietary, because being in loco regis, a praecipe will not lie against him; but since he cannot bar by recovery, he may by lease and release, though the king cannot either by recovery or grant; such being the peculiar situation of the lord proprietary, that he is in one respect in loco regis, and to be considered [**142]  in another, in a different light, and to have a power to bar by lease and release in order to prevent the establishment of an odious perpetuity.
In the case of The Earl of Derby v. Duke of Athol, Lord Hardwicke observed, as I have been informed, that if the private act of James I. intended the like effect with the statute de donis, there was no occasion for the restrictive and prohibitory clause in the act, in respect of the estate-tail, because there could be no fine or recovery, and therefore no method to bar it. The settlements, which  [*362]  have been made on the marriages of the lords proprietaries, I supposed, were upon the advice of able counsel, who did not entertain the idea of a power to bar by lease and release, and that Mr. Booth's was not singular. But as so many eminent lawyers are now of opinion in favour of the bar by deeds of lease and release, I am to suppose that I should have had less doubt if I had had more knowledge of the subject; but I do not understand why it should be thought that the propriety of Maryland was not entailable, or that the law of England, as it stood before the statute de donis, extended to Maryland [**143]  , though it ceased to be the law of England long before the charter of Maryland, or any discovery made that such a country existed.
As to the tonnage, I apprehend it is not a tenement, nor does it partake of the realty, and therefore it is not entailable, wherefore the estate limited being a fee conditional, when Lord Charles made his will, he had only a reverter, possibility, or condition in law.
Though some very modern resolutions have gone a great way in favour of the power of devising, yet I do not know that a condition in law, or in fact, has been held to be devisable. The statute de donis divided the estate, which was before entire in the grantee subject to a condition in law; and according to the old doctrine, this possibility, or condition, was not grantable, or devisable. I do not know that this doctrine has been overruled in the point, that it has been directly held a condition in law or in fact is devisable, that there is a reasonable ground for a distinction between a condition in law and in fact, as to this matter, nor do I clearly perceive why, if after the creation of a conditional fee, the reverter or condition in law is grantable, or devisable, such [**144]  reverter or condition may not be granted at the very time of creating the conditional fee, nor why, if a condition in fact be grantable, or devisable after the creation of an estate in fee, subject to such condition, such condition may not be limited to C. upon a grant of A. to B.
The case of The Earl of Stafford v. Buckley, in 2 Ves.  [*363]  seems to me to be very strong in favour of the first point, that the tonnage is not entailable; and Lord Hardwicke in this case seems also to have allowed the old doctrine respecting conditional fees and reverters; but if the Judges were of opinion, in the case of Selwyn v. Selwyn, in 2 Burr as the reporter (and I suppose upon proper grounds) has intimated, that a voidable contingent executory use to arise out of a subsequent recovery, was devisable, the reason and principle of this opinion may be of extensive application, nor shall I venture to suggest my opinion upon the point whether the reverter or condition in law was devisable or not; but if it was not devisable, then I conceive it became extinct upon the descent of the condition to Lord Frederick, and he therefore had upon the matter an absolute [**145]  fee-simple which he might dispose of as he did. If, however, the tonnage belongs to Mrs. Browning under the devise to her of the reverter or condition in law, it is to be considered, in respect of the charge in favour of Mrs. Eden, that the charge was laid upon the whole subject, that Lord Charles intended a greater profit to his elder than to his younger daughter, and that the 20,000l. was more beneficial than half the value of the tonnage. Indeed, as to the value of the whole subject intended to be devised by Lord Charles, it is very great. The revenue for the support of government, fines, forfeitures, appointment to offices, presentations to forty-four livings, caution money for vacant lands, quitrents, fines of a year's rent upon every alienation, escheats, manors, (as they are called,) reserved lands, as well as the tonnage, constitute the subject intended to be devised to Mrs. Browning, a subject which, I think, if purchased at the price of 400,000l. sterling, would be purchased at a very moderate rate; and it would seem to carry the fiction of a recompense beyond the supposition, there being no possibility of a recompense, as there is no instance of a similar [**146]  estate or subject.
 [*364]  Letter to John Hall, Esq.
SIR,
Mr. Hamersley, in his letter of the 29th last July, received by the last post via New York, desires, in the special verdict in the cause of Calvert v. Tenants of Anne Arundel Manor, that the charter and all the subsequent settlements, and the deed of 1761, may be found in haec verba; that it may also be found that the statutes de donis, uses, wills, and limitations have been adopted and received as laws in Maryland, and that the particular circumstances of Mr. Calvert's acquiescence, and the sales and improvements, &c. be also found.
I infer from the above, that it is considered to be a point of great importance to have the adoption of the above statutes expressly found, and therefore you will be pleased to consider whether it may not also be proper to find that the titles to a considerable share of real property in Maryland are held and secured under this adoption. As the statute de donis is to be thus found, it seems necessary to have the practice of barring entails by common recovery also found.
With the above view it may be necessary to find the Judges' oath, and also [**147]  the acts of assembly relative to common recoveries, of which there are two or three, particularly the act to aid defective recoveries, and the act of the last session, concerning estates-tail, &c.
In finding the recovery suffered by the late lord of the manor, it is to be considered whether our peculiar practice should not be found; for it differs not a little from the practice in England, I mean with respect particularly to the manner of appearing under a letter of attorney for an absent vouchee; for in my practice I never knew a summons ad warrantizandum. I don't remember whether there was a  [*365]  particular power given in the case to Mr. Goldsborough, to appear for Lord Baltimore, or whether he appeared in virtue of his office as attorney-general. Whatever power he acted under it seems should be found. It seems also very proper to find the death of Lady Baltimore, on whose marriage the settlements were made, without issue, and also the death of Caecilius Calvert without issue, before any steps taken to dispose of the manor; for by these events there was an end of the trusts respecting the above persons.
The name "Manor," perhaps, may mislead,  [**148]  if not explained and shewn to be merely descriptive, as black acre or white acre.
I do not understand what Mr. Hamersley means by the expressions "the particular circumstances of Mr. Calvert's acquiescence," unless he means what is alluded to in one of his former letters to me, in respect of a letter written by Mr. Calvert to the late lord, in which it is said he seemed to give up his pretensions, and applied to his lordship's bounty. If this be the meaning, there is no legal evidence of the fact here.
It seems rather odd to find laws in a verdict, but as the cause will be finally determined in England, it may be thought proper for the information of the king and council. It seems it is the practice in other colonies, and I find many instances in which it was done here, by the note books of my father, when appeals home were expected, which were more common heretofore than of late times.
As to finding the charter in haec verba, that will hardly be practicable; for it is in abbreviated Latin, and therefore the substance of it can only be found, having particular regard to that part of it which enables the proprietary to grant in fee, in tail, &c.
Having understood [**149]  that you have undertaken to draw up the notes for a special verdict, I have taken the liberty to send you the above extract from Mr. Hamersley's letter, with  [*366]  the addition of a few other hints for your consideration, and am, sir, &c.
DANIEL DULANY.
8th October, 1773.
Opinion of John Hall, Esq.
The Baltimore family having first attempted a settlement at Avalon, in Newfoundland, and finding that country too cold and barren, came further to the southward, and early in the reign of Charles I. Caecilius, then Lord Baltimore, of the kingdom of Ireland, applied to that monarch, and obtained a grant of the fertile country now known by the name of Maryland, with very extensive privileges. The charter bears date on the 20th day of June, in the 8th year of Charles I. Anno Domini, 1633. The clauses of that charter necessary to be taken notice of at present, are the 18th and 19th sections. By the 18th section, the lord proprietary has full power and license given him from time to time, at his pleasure, to assign, alien, grant, demise or enfeoff, so many, such and proportionate parts or parcels of the premises, to any person [**150]  or persons willing to purchase the same, as he shall think convenient, to hold in fee, fee-tail, term of life, or years, under such rents and services as shall seem fit and agreeable, notwithstanding the statute of quia emptores. The 19th section gives license to the same baron of Baltimore and his heirs, to erect any parcels of land within the province aforesaid into manors, and in every of those manors to hold a Court Baron, and all things which to a Court Baron do belong, with view of frank-pledge, &c. Under the power or license given in this last section, particular tracts of land have been laid out in some way or other, probably by instructions given to the Judges of the land-office, and have been known and called by the name of manors. How they were erected does not appear to me, nor did I ever know or hear of Courts being  [*367]  held under the name of Courts Baron, or under any other name particularly for those manors. In virtue of the powers contained in these sections, however, leases have been given, from time to time, for lands, parcel of the manors, generally for term of life or years; and Anne Arundel Manor has been, I believe, almost entirely leased out.  [**151]  Whether with covenants to renew or not, does not appear to me.
The next title paper that appears to me is a family settlement of the province of Maryland, made on the 31st day of December, 1698, between Charles Lord Baltimore and his eldest son and heir apparent, Benedict, of the one part, the Earl of Lchfield and his daughter, Charlotte Lee, of the second part, and the Dukeof Northumber land and other trustees, of the third part, on the marriage of Benedict with Lady Charlotte Lee, at a time when the government was in the hands of the crown. By this settlement, the province of Maryland, amongst other things, is conveyed by the name of all the country, province, and islands in America, commonly called Maryland, to the uses following, viz. to the use of Charles Calvert during his life, without impeachment of waste; remainder to Benedict Calvert for life, in the same manner; remainder to trustees to preserve contingent remainders; remainder to the first, second, and other sons of Benedict, on the body of Lady Charlotte begotten, in tail male, with other remainders relative to jointure, &c. with proviso that it should be [**152]  lawful for Charles or Benedict Calvert to grant in fee unimproved lands; to lease manors for twenty-one years, or one, two or three lives; reversion in fee to Charles Calvert. Benedict had issue, as the fact is stated, by Lady Charlotte, four sons, Charles, Benedict, Edward and Caecilius; the three last died without issue. In 1716 the government was restored to Charles, the grandson of Charles Lord Baltimore, who appears at that time to have been in his minority. He lived to old age, (dying in the year 1751,) and was succeeded by the present Lord Baltimore.
In the year 1730, Charles, late Lord Baltimore, on his  [*368]  marriage with Mary, the youngest daughter of Sir Theodore Jansen, likewise made a settlement of the province of Maryland, amongst other things, by which the uses are limited to himself for life, without impeachment of waste; remainder to trustees to preserve contingent remainders; clauses to secure jointure; remainder to the first and every other son of the marriage in tail male; reversion to himself in fee. Charles had issue by his wife Mary, one son, Frederick, and two daughters, Louisa and [**153]  Caroline. On the 17th day of November, in the year 1750, Charles late Lord Baltimore, made his last will and testament, and amongst other devises therein contained, devised Ann Arundel Manor to Benjamin Calvert, Esq. his heirs and assigns; under which Benedict Calvert, Esq. of Prince George's county claims title.
Frederick, the present Lord Baltimore, in the year 1753, likewise entered into articles for the settlement of the province of Maryland, on his marriage with Diana Egerton, one of the daughters of Scroop Egerton, late Duke of Bridgewater, deceased, in which the said marriage is recited as a matter in prospect. The former entails are recited. The terms on which the marriage was proposed to be held are also set forth. And then it is recited, that it was apprehended no plea could be held in the Courts of Westminster concerning the said province, for that the remedial writs of our lord the king do not run into the plantations or other parts beyond the seas. And it is also apprehended that the several Courts established in the same province or territory, under the authority of the said Frederick Lord Baltimore, as [**154]  lord or proprietor of that territory, for the determining suits between the tenants or inhabitants of the said province, cannot hold plea concerning the property or ownership of the said province, in case of any controversy concerning the same, the cognisance of such questions being conceived to belong to the king's majesty, of whom, as superior lord, the said Frederick Lord Baltimore doth hold the said province as a feudatory tenant, by the rents and services expressed  [*369]  in the charter or letters patent herein before mentioned. And whereas it will be necessary that the said Frederick Lord Baltimore, to be enabled to settle, convey, and assure the said province, lordship, or territory, in the manner proposed in the course of the said treaty, should acquire to himself, and be seised of a full and indefeasible estate in fee-simple, of and in the said province, lordship, or territory of Maryland; but thought the estate and interest which he hath in the said province, is in nature of an estate of inheritance in tail male, and it is conceived to be incident and belonging to every such estate to be barrable by a common recovery, and the said Frederick Lord Baltimore [**155]  would be qualified to suffer such recovery, and thereby to bar such estate-tail, did the said territory or district of land lie in England; yet by reason that it is apprehended that there doth not exist any Court or jurisdiction before which any proceedings in nature of a common recovery for or concerning the said province or territory can be carried on or prosecuted, the said Frederick Lord Baltimore is wholly disabled to bar or dock the said estate-tail, and therefore cannot acquire the fee-simple of the said province to himself. And whereas there is great reason to expect that if the several matters aforesaid are in a dutiful manner represented to his majesty, he will be graciously pleased to give leave that an application be made to the parliament for the aid of the legislature to enable the said Frederick Lord Baltimore to execute such deed, or do some such solemn act as may be enacted, and declared to be equivalent to, and have the force of, a common recovery, and may so operate as to vest an indefeasible estate of inheritance in fee-simple, freed and discharged from all entails, and all remainders and reversions expectant, &c. Therefore proper covenants are to be [**156]  entered into, to oblige Lord Baltimore to lay a most dutiful representation upon the matter aforesaid before his majesty, to petition for leave to apply to parliament for an act to enable him to bar said entails so subsisting, and to use his utmost endeavours that such act may be obtained. Caecilius Calvert, heir in tail,  [*370]  engages to join in the application for an act of parliament. This settlement contains a great variety of other clauses not material to the point under consideration, and the less worthy of notice, because, although the marriage took effect, the Lady Baltimore is since dead without issue. Whether any application was ever made to parliament or not, does not appear to me. I find a deed of settlement amongst the council records, by lease and release, leased 30th day of January, 1761, between Frederick Lord Baltimore and his uncle Caecilius, deceased, of the one part, and the honorable Thomas Bennett, Earl of Tankerville, and William Sharpe, Esq. one of the clerks of the privy council, of the other part, for one year, in common form, to ground release on: the release dated the 31st of the same month, by way of indenture  [**157]  tripartite, between Frederick Lord Baltimore of the one part, the honourable Caecilius Calvert, uncle, &c. of the second part, and the earl of Tankerville and William Sharpe, Esq. of the third part, recites a marriage agreement in March, 1753, to secure the payment of 800l. per annum to the baroness dowager of Baltimore, ten thousand pounds for the portions of Louisa and Caroline Calvert, and two thousand a year to Lady Diana Egerton; province of Maryland to be settled and assured, &c. on Lord Baltimore for life, with divers remainders. It recites that the said marriage did take effect in pursuance of the said recited indenture, and in performance of such covenants and agreements as are now, and remain to be executed, and for docking, barring, and extinguishing all estates-tail, and all remainders and reversions, and all other estates of and in the said province, lordship, &c. called Maryland, and for settling and assuring the same to the several uses and trusts after expressed, and in consideration of ten shillings sterling, Frederick Lord Baltimore and Caecilius Calvert convey said province to the trustees aforesaid and [**158]  their heirs, to hold to the use of Frederick Lord Baltimore, during his natural life, without impeachment of waste, and with power to commit waste; remainder to trustees to preserve contingent remainders;  [*371]  remainder to the first, second, and every other son of Caecilius Calvert, in tail male; remainder to the use of such person and persons, and for such estates as Lord Baltimore, by deed executed in presence of two witnesses, or by his last will shall limit and appoint; remainder, in case of no such appointment, to the use of such persons and for such estates as the reversion of the same premises now stands limited to, and devised by, the last will and testament of Charles Lord Baltimore, deceased. Proviso, saving the power of government; right of consenting to exchange; division or partition with other governments adjacent; right of granting and leasing, as in other settlements; power to make jointures; to charge the province with a sum not exceeding twenty thousand pounds for daughters' portions; covenant for further assurance to the same uses, acknowledged before Thomas Lane, I suppose Master in Chancery, and enrolled in the High Court of Chancery,  [**159]  on the 4th of February, 1761.
What I find next is a conveyance of lease and release from Frederick Lord Baltimore to the Reverend Bennett Allen, of Ann Arundel Manor, and all other the manors within the province. The lease bears date the 7th of April, 1767, for one year, in common form. The release bears date the 18th day of the same month, tripartite between the lord proprietary of the first part, the Reverend Bennett Allen, of the second part, and the honourable Walter Dulany, Esq. of the third part, recites the former entails, 1698 and 1730; recites a former conveyance made by Lord Baltimore and Caecilius Calvert, to the honourable Thomas Bennett and William Sharpe, Esq. of the province of Maryland, dated the 30th and 31st days of January, 1761, enrolled in the chancery of England, and recorded in Maryland, but does not set out the use in said deed contained and limited; recites the instructions dated in February and November, 1766, to his excellency Horatio Sharpe, Esq. the honourable Daniel Dulany, and John Morton Jordon, Esq'rs. for selling the manors, and that they had made considerable progress [**160]  therein; recites that the former entail, subsisting  [*372]  upon the entire province, had been already effectually barred and destroyed by the deeds in 1761, and that the said Lord Baltimore had acquired an indefeasible estate in fee by the said deed, according to the usage in like cases, (there being no other established method for barring entails upon the entirety of the said province, and other the premises,) yet in regard to the subsequent limitations and dispositions, created and made by the said last recited indentures, and for facilitating the sale of the manors, &c., the scheme of the deed is to make Walter Dulany, demandant, Bennett Allen, tenant to the praecipe; the Lord Baltimore to come in either personally or by attorney, as vouchee, and to vouch over the common vouchee; the parties to stand seised to the use of the Lord Baltimore in fee, with an express proviso, that nothing in that deed should frustrate or destroy, or in any manner derogate from, or invalidate, impeach, prejudice, or affect the said recited deeds of lease and release, dated in January, 1761, but that the same should stand in full force and vigor as to the entire province [**161]  and the whole territory called Maryland, (Anne Arundel and other manors only excepted.) There is a power of attorney also, or writing purporting to be a power of attorney, from Lord Baltimore, dated the 8th of April, 1767, to the Honourable     Goldsborough, Esq. attorney-general of the said province, or any other attorney-general of the same province, to appear, and in the name and behalf of the said Lord Baltimore, to enter into warranty and vouch over common vouchee. Executed before Hugh Hamersley and Giles Hitchcock, and proved by Hitchcock before the mayor of London. In consequence of this deed to make a tenant to the praecipe, at an adjourned Provincial Court in the month of July last past, a writ of entry sur disseisin was issued out in the name of Frederick Lord Baltimore to the Sheriff of Anne Arundel county, Walter Dulany, demandant, Bennett Allen, tenant, of all that tract or parcel of land called Anne Arundel Manor, &c.; bearing date the 1st day of April, in the 17th year of the dominion. Declaration in common  [*373]  form. Walter Dulany, demandant, recovers against Bennett Allen [**162]  , he over against the lord proprietary, and the lord proprietary against William Rawlins, the common vouchee. Writ of seisin is prayed returnable to the third Tuesday in October next, and I presume has been issued, but cannot be as yet returned.
I have been thus circumstantial in stating the facts on which my opinion is founded, because every gentleman interested may have an opportunity of considering them and judging for himself. Proper allowance, I doubt not, will be made for the short time I have had to consider an affair of so great extent. The charter to the first lord proprietary gives him an estate in fee-simple with ample powers. Those that immediately relate to this matter may be seen in the 18th and 19th sections of the charter printed in Bacon's laws. The settlement made by the first Charles Lord Baltimore in 1698, is in my opinion of sufficient force and validity to work an alteration of that estate, and without saying any thing of the settlement made by the late Lord Baltimore, in 1730, I look upon it that Frederick, the present lord proprietary, at the time of his coming to the government upon the decease of his father, was seised of an estate [**163]  in tail male under the deeds made by his great grandfather. And I do not think the father of the present Lord Baltimore had power by testament to devise Anne Arundel Manor, or any other part of the province, to any person whatever, to take effect otherwise than upon the death of the present Lord Baltimore without issue male, and without exercising that power which I think he has of docking the entail. But should no other steps be taken than what have been already, I doubt much whether the entail would be barred. There are some very strong recitals in the marriage articles, with regard to the manner in which the entail ought to be docked; it appears clearly from those recitals to be the opinion of gentlemen in England, and even of Lord Baltimore himself, that the entail on the entire province could not be barred but by act of parliament. No process from the Courts of  [*374]  Westminster would reach us, and the Courts in this province are looked upon not to have competent jurisdiction so as that the lord proprietary would bar the entail on the entire province; if so, how can he be vouched for the most valuable part of it, or where must he stop? I am not clear [**164]  in this point the one way or the other. It has been the prevailing doctrine here that the lord proprietary, like the king at home, cannot be disseised, and the proceeding in common recovery is grounded upon a disseisin, and although he comes in as vouchee, yet I do not know what consequences might be deduced from this doctrine, where it appears from the deeds to lead to the uses, and from the whole complexion of the affair, that the lord proprietary is the real person concerned, and that the intention of the recovery is to gain him an estate in fee. Adversary suits are brought in the Courts of Justice within this province, where the lord proprietary is plaintiff, and every day's experience shows that such suits may be maintained; but I never knew an action where he was defendant. The common method of trying title, where the lord proprietary is concerned, is to bring ejectments against his tenants, and then the Courts hold plea. What ought to be the opinion of Judges in England, in case the dispute were carried thither by appeal, is uncertain. Recitals demonstrate what opinion has been already formed. And, therefore, I much admire no steps were ever taken to procure an act of parliament [**165]  which would have put a short end to all controversy about it, more especially as this seems to have been a matter in contemplation at the time of the marriage articles in 1753. Another objection appears to me considerable; how can it consist with the settlement in the year 1761, in which Lord Baltimore and Caecilius Calvert both joined to the Earl of Tankerville and William Sharpe, Esq. that the Lord Baltimore should have an estate sufficient to make a tenant to the praecipe without the trustees or the survivor of them joining in the deed. The settlement, though it cannot in my opinion operate so as to extinguish the estate-tail on the entire province, has certainly  [*375]  vested the legal estate in trustees to the uses therein mentioned. The lord proprietary is tenant for life with divers remainders over, one of which is to the use of such persons and for such estates as the reversion of the same premises now stands limited to and devised by the last will and testament of Charles Lord Baltimore, deceased, under which, I take it, the devise to Mr. Calvert is included. If it could be supposed not necessary for the trustees to join, what is there [**166]  to prevent Lord Baltimore from defeating that whole settlement without their consent; for if he can gain a fee in the manors without them, by the same parity of reason he may gain a fee in all the rest of the province without them, and to what purpose would be those deeds?
Another objection appears to me to have great weight, and is quite apparent to any one that knows the method of proceeding in recoveries. Where they are suffered in this province, and if we can trust to our law books, in the island of Great Britain, by power of attorney, the same must be taken by one of the Judges of the Court; or by dedimus: our practice is so, and evils might follow not easy to guard against were it otherwise. Where a Judge of the Court does not take the power of attorney, the course is to issue a writ of entry and send dedimus to take acknowledgment of deeds and powers of attorney, &c.
Upon the whole I am of opinion that it is unsafe to purchase under the title as it stands at present. It is not certain what would be the opinion of Judges in England, with regard to the Courts in this province having competent jurisdiction, were the matter carried thither by appeal. It would [**167]  have been much better that the trustees had joined in the deeds to make a tenant to the praecipe, for if this be not necessary, the consequence will follow that the whole settlement in 1761 may be defeated without their consent. If there were no doubts upon either of these points, as I do think there are, yet the power of attorney is utterly new and irregular, and ought to have been taken by dedimus. There is one thing that satisfies me how little regard is to  [*376]  be paid to some parts of the deed to make a tenant: after reciting the settlement of 1761, the deed asserts that Lord Baltimore had thereby acquired an indefeasible estate in fee according to the usage in like cases. There is no usage, I believe, that can be pointed out to bar entails by a simple deed recorded in the Chancery, and what follows just after in a parenthesis is very remarkable (there being no other established method for barring entails upon the entirety of the said province and other the premises.) These are my sentiments upon the occasion. It is with reluctance I have given any opinion. I cannot conclude without observing that many of these settlements, particularly those in 1698 and 1730,  [**168]  are entirely in the custody or power of the Baltimore family, and certainly attested copies of them ought to be sent over and recorded here for the safety of purchasers.
The lord proprietary no doubt would be bound by his warranty, but after his death the heirs would not be bound without assets in fee descended, and the whole family estate seems to be entailed. And this further inconvenience would attend the purchasers in cases of eviction: they must follow the lord proprietary or his heirs into the Courts of Justice in England, where they reside.
J. HALL.  

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