1 of 20 DOCUMENTS 

Smith and Purviances against The State of Maryland, at the relation of Thomas Yates.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 244; 1788 Md. LEXIS 3 

May, 1788, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from a decree of the Court of Chancery, vacating a grant.

The information states, that William Rogers, on the 27th of April, 1759, obtained a special warrant out of the land-office; that there was surveyed and laid out for the said Rogers, on the 13th of June, 1759, in virtue of the said warrant, a tract of land called Roger's Inspection, lying in Baltimore county, upon which a patent was granted, on the 29th of September, 1759, all necessary requisites having been complied with. By the certificate of survey and patent, the said land is described to run as follows: "Beginning at a bounded White Oak, standing near the side of the north-west branch of Patapsco, it being the second bounded tree of a tract of land called Mountency's Neck, and running thence, bounding on the said land, E. 71 perches, unto a creek of the said north-west branch, then bounding down with the creek S. 20, W. 7 perches unto the mouth of the creek, then bounding upwards on the said north-west branch, the four following courses: viz. N. 58, W. 35 perches; S. 80, W. 16 perches; N. 74, W. 10 perches; N. 33, W. 20 perches; and then with a straight line to the beginning, containing and laid [**2]  out for two and three quarters of an acre, more or less."

That by divers mesne conveyances, the said Thomas Yates hath become seised and possessed of certain parts of the said tract of land, viz. of No. 388. 408. 451. and 452. as marked on a plat produced. That at     sessions, 177 , an act of assembly was passed and made, for laying out the said tract of land with other grounds therein mentioned for a town, and annexing and adding the same to Baltimore town: since which time, the said tract hath been, and yet is, a part of Baltimore town.

That by an act of assembly, entitled and passed in August, 1745, c. 9. it was among other things enacted, [section 10.] "that all improvements, of what kind soever, either wharves, houses or other buildings, that have or shall be made out of the water, or where it usually flows, (as an encouragement to such improvers,) be for ever deemed the right, &c. of such improver or improvers, their heirs and assigns for ever."

That by an act of assembly, entitled an act appointing wardens for the port of Baltimore, &c. passed in April, 1783, c. 24. it was among other things enacted, [section 2.] that certain persons therein named, should [**3]  be wardens for the port of Baltimore town, and [section 9.] that from and after the publication of the same act, "no person or persons should make, alter or extend, a wharf or wharves, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained under the seal of the board, to carry the same into effect."

That the relator being desirous to make and extend wharves from the said parts or parcels of the said tract of land of which he was seised and possessed as aforesaid, running from the fast land unto the waters of the north-west branch of Patapsco, did lay before the board of wardens the plan of the said intended wharves, and did obtain from the said board their consent, under the seal of the said board, to make and extend certain wharves, which are particularly described on a plat exhibited.

That the said relator being so seised, &c. and having obtained permission, &c. had begun to make and extend the said wharves, and was about to make and extend the same to the limits permitted, &c.

That on the 13th of June, 1768, it was ordered by the board of revenue, that a reserve be laid for the use of the lord [**4]  proprietary, on all vacant and escheat land lying and being in the town of Baltimore, in Baltimore county, or within the distance of five miles thereof, or of any part thereof, of which the judges of the land-office were desired to make an entry on record, and to take the greatest care to prevent any survey being made upon the same, either by expressly mentioning the reserve in all warrants to be issued out of the office, or in such other manner as may make the same known, and remove all pretence of ignorance. And by virtue of, and in obedience to, the said order, it was by the judges of the land-office, on the 4th day of July, 1768, entered on record among the records of the land-office, that a reserve was made on all vacant and escheat land, in the town of Baltimore, or within the distance of five miles thereof, or any part thereof, for the use of the right honourable the lord proprietary, of which the surveyor of Baltimore county was directed to take notice, and demean himself accordingly. That the said reserve hath never yet been taken off.

That by an act of assembly, entitled an act allowing a longer time to compound on old certificates, &c. passed in April 1782, c. 38. it [**5]  was, among other things, enacted, (section 6.) "that the governor and council should, and they were thereby requested, as soon as conveniently could be done, to give instructions to all the surveyors in the several counties in this state, not to run the lines of any common warrant, special warrant, or warrant of resurvey, issued, or hereafter to issue, out of the land-office for common vacancy, into the manors or lands heretofore reserved for the use of the late lord proprietary, lying adjacent to such manors, or which may have been otherwise reserved for the use of the said proprietary," and it was thereby "declared, that the said reserves should be appropriated to such uses and purposes, as the general assembly should thereafter direct." That instructions were given accordingly to the several surveyors in the several counties, and, among others, to the surveyor of Baltimore county.

That Nathaniel Smith, of Baltimore county, being seised and possessed of and in a tract or parcel of land, called Bond's Marsh, situate in the said county, originally granted unto a certain John Bond, on the 16th of September, 1766, obtained on the 29th of April, 1782, a warrant of resurvey on the [**6]  said tract, having by his petition set forth, that he had discovered some vacant land contiguous thereto, and that he was desirous of adding the same thereto; by which warrant, the surveyor of Baltimore county was directed to lay out, and carefully resurvey, for and in the name of him the said Smith, the said tract of land called Bond's Marsh, according to its ancient metes and bounds, nevertheless correcting and amending any errors in the original survey; and by his outlines adding any vacant lands thereto contiguous, not running the said lines within the lines of any former or more ancient survey, or manors, or lands reserved by act of assembly; in pursuance whereof, the said surveyor, on the 8th of May, 1782, did certify into the land-office, that he had resurveyed the said original tract called Bond's Marsh, and that it contained exactly four acres, and that there was the quantity of 17 1-2 acres of vacant land added; and on the 2d of June, 1783, the said Smith obtained the State of Maryland's grant on the said certificate, wherein the said State did grant to the said Smith, his heirs and assigns, the aforesaid tract or parcel of land, resurveyed with the vacancy added, reduced [**7]  into one entire tract, and called Bond's Marsh Resurveyed, described as lying and being in Baltimore county, beginning, &c. and containing 21 1-2 acres of land, more or less, and which is particularly located on the plat exhibited.

That the said Smith, having so obtained the State's grant for the said land, afterwards, on the 8th of July, 1784, did bargain and sell, by deed of bargain and sale, for a consideration therein mentioned, two undivided third parts of the said tract to Samuel and Robert Purviance. That although the said Smith, by his aforesaid petition did allege and set forth, that he had discovered vacant land, adjoining the said tract called Bond's Marsh, there was not any vacant land adjoining or contiguous to the same, but that the whole, which, by the said grant, is granted to the said Smith, as vacant land, added to the original tract aforesaid, now is, and at the time of obtaining the said warrant and grant, was, part of the waters of the north-west branch of Patapsco River.

That the whole extent and comprehension of the said tract of land called Bond's Marsh Resurveyed, and every part thereof, contained within its boundaries, do lie and are situate within [**8]  two miles of Baltimore town; and that the survey of the said tract of land called Bond's Marsh Resurveyed, was made contrary to the laws of the state, and the express terms of the said warrant; and the grant thereof was obtained from the state by fraud, misrepresentation, and in deceit of the said state.

That there was an agreement entered into, between the said Smith and Purviances, before the said Smith obtained the said warrant; that the said Purviances should be two-thirds interested with the said Smith, in the said survey, &c. and that the said Purviances, when the warrant was procured, and when the grant was obtained, and when the said conveyance was made to them by the said Smith, did well know that the pretended vacancy discovered and included was not land, but part of the waters of the north-west branch of Patapsco River, and the whole lay within two miles of Baltimore town in Baltimore county, and were partners with the said Smith in the said fraud, misrepresentation and deceit by which the grant was obtained.

But, &c. the said Smith and Purviances combining, &c. to injure and prejudice the said State of Maryland, and the said Thomas Yates, the relator, under pretence [**9]  that the said grant of Bond's Marsh Resurveyed was fairly and honestly obtained, do claim all the waters of the said branch of Patapsco, comprised within the lines of the said survey, as their sole and exclusive property, and have actually forbid the said Yates from making and extending the said wharves, by the said Yates begun, into the waters of the said branch of Patapsco, within the limits of the said resurvey, by the said Smith made as aforesaid, &c.

The defendants' answer. That by virtue of an escheat warrant granted to William Rogers, to escheat a tract of land called Bold Venture, dated the 27th of April, 1759, directed to the then deputy-surveyor of Baltimore county, the said surveyor did, on the 13th of June, 1759, survey for the said Rogers, a tract of land called Rogers's Inspection, lying in two parts, on which said survey a certificate was returned, and patent thereon issued on the 29th of September, 1759. That the plat annexed to the information, does not contain either a true location of Rogers's Inspection, nor of the waters of the north-west branch of Patapsco, and is materially defective, &c. They hope an accurate survey might be made, &c. Other parts of the [**10]  information are either admitted, or the proof thereof put upon the complainant.

That the tract called Bond's Marsh Resurveyed, is at some tides covered with water, and at other tides uncovered by water and muddy ground, and in some parts covered with flags. They admit that the said tract is within the distance of two miles from Baltimore town, but deny that the grant for the same was obtained by misrepresentation, fraud or deceit. They admit that the said Yates was forbade, by them, to make and extend the wharves by him begun. That they have a good title, &c.

Exhibits and proofs. Extracts from the proceedings of the port-wardens.

"The board took in consideration the application of Thomas Yates to extend the Lots No. 451. and 452. to navigable water, and are of opinion that the said lots shall extend in a south direction, parallel with Harford street, to intersect a line drawn east from, and parallel with, the south side of Lee street. Samuel Purviance being present, and objecting on behalf of himself and others, to the above permission, as interfering with his property in front of said lots, The Board are of opinion, that the said permission shall not be deemed and taken [**11]  to affect or injure the rights or claims of any individuals whatever; and permission was granted accordingly, the said Thomas Yates securing each side of his wharf effectually, as the same shall be extended, so as not to injure the adjoining lots."

A similar application to extend Lots No. 388. and 408. into the basin to the channel, and the like permission to extend in a south direction, parallel with Gay street, binding on the line of Jones's Falls, to intersect a line drawn east from, and parallel with, the south side of Lee street. S. Purviance objected as above, and the same opinion, &c. of the board.

There were a number of depositions of witnesses filed respecting the waters of Patapsco River, Jones's Falls, and the basin, and of the different situation of the lands in dispute at high and low tides, at various times within 40 years last passed.

There was also proof, that the resurvey made on Bond's Marsh was done on the ice, and that the whole space of the resurvey was, at the time it was made, covered over with ice, except the island called Bond's Marsh, being the original tract, and that the resurvey could not have been made and executed save on the ice, without [**12]  either wading, or having the assistance of boats. That the island called Bond's Marsh is two-thirds larger now than when the said resurvey was made. That the basin has filled up considerably.

By the plat of the land made by order of the Chancellor, it appears that the whole of Bond's Marsh Resurveyed, except the island, being the original tract, lay in the water at the time the said plat was made in 1784, and that the inner lines of the said resurvey was distinct from Baltimore town, running along with the south or outer edge of Jones's Falls, and fronting on the said town in the form of an arm, into the north-west branch of Patapsco River, the nearest part of which resurvey was 160 feet, and the nearest part of the farthest extension thereof into the said falls, 347 feet from the said town, leaving a large space of water between the said town and the said resurvey.

At February term, 1786, the Chancellor (Rogers) passed a decree, dated the 27th April, 1786, "that the patent aforesaid granted to the said Nathaniel Smith, on the 2d of June, 1783, for the said tract of land called Bond's Marsh Resurveyed, be, and the said patent hereby is, vacated, revoked, cancelled and annulled,  [**13]  and void, vacated and invalid be had and held, and that the enrolment thereof be, and hereby is, cancelled, made void and annulled, and that the said Nathaniel Smith do bring into this Court the said patent of Bond's Marsh Resurveyed, that the same may be vacated and cancelled accordingly, and that the said Nathaniel Smith, Samuel Purviance and Robert Purviance, do pay to the said Thomas Yates the relator, his costs of suit in this behalf laid out and expended."

The defendants appealed to the Court of Appeals.  

DISPOSITION:
Decree affirmed.  

COUNSEL:
Jenings and Smith, for the appellants.

Martin, (Attorney-General,) Chase and J. T. Chase, for the appellees.  

OPINION:

 [*252]  The decree of the Court of Chancery was affirmed in the Court of Appeals at this term, (May, 1788.) 

2 of 20 DOCUMENTS 

Job Garretson's Lessee against Richard Cole.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 459; 1790 Md. LEXIS 9 

May, 1790, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called the Silent Cyphers of Africa, lying in Baltimore County.

By the statement of facts, signed by the plaintiff and defendant's counsel, and submitted to the Court for their opinion,

It was admitted that Job Garretson, the lessor of the plaintiff, on the 11th of April, 1772, obtained by renewment a special warrant out of the Lord Proprietor's land-office, by which it appears that a special warrant was granted to John M'Donald, on the 28th of June, 1770, stating that there was about 100 acres vacant lying in Anne Arundel County, and adjoining, or between, a tract of land in the possession of John Brown, a tract of land belonging to John Hall, and a tract of land in the possession of the said John M'Donald, caution money for the same having been paid. That the warrant was renewed in the name of the same M'Donald, the 10th of December, 1770, for six months, was assigned to Job Garretson, and renewed in his name the 10th of May, 1771, for six months longer, "with liberty of executing the same on so much vacant land lying in Baltimore County, and adjoining Sheridine's Discovery, Mount Royal, and a tract called Grindell." That it was again renewed [**2]  in the name of Job Garretson, the 10th of November, 1771, for six months longer, and also again renewed the 11th April, 1772, for six months longer.

That by virtue of this warrant the said Job Garretson had surveyed and laid out to him the aforesaid tract of land called the Silent Cyphers of Africa, and returned into the land-office a certificate thereof on the 17th June, 1772; which certificate states, that there was "surveyed for the said Job Garretson a tract of land lying in Baltimore County, beginning, &c. containing 655 acres of land, more or less, to be held of the Manor of Baltimore by the name of the Silent Cyphers of Africa;" on which certificate was the following endorsement: "August 3d, 1772, examined and passed." Also, "126 acres of a common warrant assigned to Job Garretson, from Joseph Ennals, the 6th of September, 1770, and which is applied to make good rights to so much, part of the within vacancy," &c. That 21l. 10s. caution money was, on the 13th August, 1772, paid for the vacancy.

That, in consequence of this warrant and certificate, a grant was issued by the then Lord Proprietary of the Province of Maryland, to the said Job Garretson, for the said tract [**3]  of land, which patent was issued on the 11th of November, 1775, and recites: "That Job Garretson, of Baltimore County, hath due unto him 655 acres of land; 100 acres thereof by virtue of a warrant for that quantity, granted him by renewment the 11th of April, 1772; and he has made good rights to 126 acres more, by applying an assignment from Joseph Ennals, of a common warrant for that quantity, granted him the 6th of September, 1770; and for the remaining quantity he has paid the sum of 21l. 10s. sterling caution, according to instructions, &c. of the 12th September, 1712, and 1715, of December, 1738," and granted to Job Garretson the tract of land called the Silent Cyphers of Africa, containing 655 acres, more or less, according to the certificate.

It was admitted that the tract of land called the Silent Cyphers of Africa was truly located on the plots in the cause; and, also, that the lines of a tract of land called Grindon, formerly granted by the Lord Proprietor, on the 6th of October, 1735, to a certain Chelwynd & Co. are truly located on the plots. That Job Garretson entered into the said tract of land called the Silent Cyphers of Africa, and is possessed of all that part [**4]  thereof not included within the defence of the defendant.

It was also admitted that the defendant, Richard Cole, obtained a common warrant on the 12th of February, 1771, for 60 acres; which warrant was regularly renewed from the Lord Proprietor's land-office, on the 12th of August, 1772, for 60 acres of land; and by which it appears, the sum of three pounds sterling caution for the same had been paid. By virtue of which warrant, Richard Cole had surveyed and laid out for him a tract of land called Cole's Discovery, (for which he takes defence,) and returned a certificate thereof to the land-office, dated the 8th of January, 1773. That on the 10th of April, 1775, the said Richard Cole obtained the Lord Proprietary's grant for the said tract of land, dated the 10th of April, 1775. That the said tract of land, called Cole's Discovery, was truly located on the plots in the cause; and that Richard Cole, by virtue of his grant, entered upon the said tract and was possessed thereof.

It is also admitted that on the 22d of January, 1773, the said Richard Cole filed a petition in the Lord Proprietor's land-office, to prevent a patent issuing on the aforesaid certificate of The Silent [**5]  Cyphers of Africa, to the said Job Garretson; which petition sets forth, "that a certain Job Garretson had, on the 10th of November, 1771, renewed for him a special warrant for affecting and securing 100 acres of land, adjoining the following tracts, to wit, Sheridine's Discovery, Mount Royal, and Grindell; that the land whereon the said warrant is located, he, the said Richard Cole, claims as his property." Wherefore he prayed that no patent might issue to the said Garretson until a hearing. That on the said 22d of January, 1773, the certificate of The Silent Cyphers of Africa was, in consequence of the said petition, endorsed, "caveated by Richard Cole."

It was further admitted that no proceedings were had by the said Richard Cole, nor any thing done by him in prosecution of the said caveat from that time; and that on the 6th of November, 1775, the said Job Garretson petitioned the then judges of the Lord Proprietor's land-office for a dismission of the said caveat, and that a patent might issue on his, the said Job Garretson's certificate; which petition, setting forth his title to the land, states, that no steps had been taken by Cole to prove his assertion, nor had he called [**6]  upon him to answer. That the said Cole had removed out of the province to Juniata, a new settled country, an immense distance off. That there would be great difficulty in prevailing on Cole to attend. That the caveat had been long pending; two years and four months longer than it could legally continue under the rules of the land-office. For which reasons the said Garretson prayed, that a patent might issue to him.

That in consequence of the said petition the caveat was ordered to be dismissed, and a patent to issue. The lease, entry and ouster was also admitted.

Upon the statement it was submitted to the Court, whether the said Job Garretson, under his grant, had title to that part of the land contained within his grant, which also lies within the grant of Cole's Discovery; and if it should be their opinion that he had a title to that part of the land in the patent of the said Garretson, as aforesaid contained, then judgment for possession and costs to be entered for the plaintiff, according to his pretensions located on the said plots. But if it should be the opinion of the Court that the said Job Garretson was not by his said grant entitled to that part of the land comprised [**7]  in his grant, which was also within the grant of Cole's Discovery, then judgment to be entered for the defendant, with costs.  

COUNSEL:
Luther Martin, for plaintiff.

Richard Ridgely, for defendant.  

OPINION:

 [*463]  The General Court gave judgment, on the case stated, for the plaintiff.
The defendant, on the 22d of November, 1802, removed the cause, by writ of error, to the Court of Appeals, where, by the death of Cole, the appellant, the cause abated at June term, 1805.  

3 of 20 DOCUMENTS 

John Moale against Elisha Tyson.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 387; 1789 Md. LEXIS 12 

October, 1789, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. By the record it appears that this was an action of covenant brought by the appellant, the plaintiff in the court below, against the appellee, the defendant therein, upon an indenture of lease executed by Richard Moale (whose devisee the said John is) to the said Tyson. The declaration states a breach for non-payment of one year's rent, amounting to 20l. 11s. sterling money, &c. ending on the 1st of April, 1786.

The pleas are as follows: "And the said Elisha Tyson by Richard Ridgeley, his attorney, comes and defends the force and injury, when, &c. and saith, that the said John ought not to have or maintain his action aforesaid thereof against him, because he says that after the said demise of the lands and premises by the indenture aforesaid by the said Richard Moale in his life-time to the said Elisha, as is aforesaid made, and before the said rent of 20l. 11s. sterling by the declaration aforesaid above demanded, or any part thereof became due or in arrear, to wit, on the 24th day of December, 1782, at Baltimore County aforesaid, the same Elisha, by indenture duly executed, acknowledged and recorded according to law, assigned all his interest,  [**2]  estate and term of years of, and in the land and premises aforesaid, with the appurtenances to him as aforesaid demised, to one Alexander Woodrop Davey; by virtue of which said assignment the said Alexander was of the lands and premises aforesaid for the residue of the term aforesaid possessed, whereof the said Richard Moale, in his life-time, afterwards, and before any part of the rent above demanded became due, to wit, on the 24th of December, 1782, at Baltimore County aforesaid, had notice; and thereupon the said A. W. D., afterwards, to wit, on the 1st day of April, 1785, at the county aforesaid, paid to the said R. in his life-time, the sum of 20l. 11s. sterling money, for the rent reserved and then in arrear, due and payable for the land and premises aforesaid, by virtue of the demise aforesaid, for one year's rent, ended on the said first day of April, 1785, which said sum of 20l. 11s. sterling money in manner and form aforesaid paid to the said R. by the said A., as assignee of him the said E., for that rent then in arrear, he the said R. then and there received and accepted; and this the said E. is ready to verify: wherefore he prays judgment if the said J. his action aforesaid [**3]  against him the said E. to have or maintain ought," &c.

"And the said E., with the leave of the Court here first had and obtained according to the form of the statute in such case made and provided, comes and further defends the force and injury when, &c. and says that he the said J. his action aforesaid against him the said E. to have or maintain ought not, because he saith that in the life-time of the said R. before the said rent of 20l. 11s. sterling money in the declaration aforesaid mentioned, or any part thereof, became due and in arrear, to wit, on the 24th day of December, 1782, at Baltimore County aforesaid, the same E. assigned all his interest, estate and term of years of and in the lands and premises aforesaid, with the appurtenances to him as aforesaid demised to one A. W. D., by virtue of which said assignment the same A. was of the lands and premises aforesaid, for the residue of the term aforesaid, possessed; and this the said E. is ready to verify: wherefore he prays judgment if the said J. his action aforesaid against him the said E. to have or maintain ought," &c.

The plaintiff demurred generally to both of the pleas, and the County Court, at November term,  [**4]  1787, gave the following opinion, to wit:

"By the common law no stranger to any covenant, action, or condition had any advantage or benefit of the same by any ways in the law, except such as were parties or privies thereto; by reason whereof, all grantees of reversion were excluded to have entry or action against the lessees, their executors or assigns, which the lessors before that time had against the lessees for the breach of any covenant or condition comprised in the indentures of their said leases. To remedy which it was enacted in 32 Hen. VIII. c. 34. that all grantees of reversion shall have and enjoy like advantages against the lessees, their executors or assigns, by entry for non-payment of rent, waste, or other forfeiture, that the grantors or lessors had; but shall have remedy by action only for non-performance of other conditions, covenants, &c. expressed in the indenture of their lease.

In our researches we find it laid down by different reporters, as the law of the land, that the contract for the payment of rent is a real contract, follows and waits on the land, and makes the land the debtor; but for collateral covenants, such as to pay a premium, sum in gross,  [**5]  build houses, mills, &c. the grantee of the reversion may have his action against the lessee, his assignee, or either of them; but an action of covenant for the payment of rent must be maintained on the privity of estate.

The counsel for the plaintiff, in the case before the court, have said much in support of what they call a second independent or express covenant. We cannot take this second or express covenant, as they call it, in any point of light different from the first: it is for rent. The first clause says, yielding and paying, &c. yearly and every year, the yearly rent or sum of, &c. The latter covenant expresses, that he shall pay, &c. the said yearly rent or sum of, &c. in such manner and form as the same is herein before reserved and made payable, &c. It is not only rent, it is a reservation of the same rent as expressed in the first clause, and grounded on the same considerations. It is a real contract, and will follow the estate; and we are of opinion that by the law of the land, an action of covenant for the payment of rent must be maintained on the privity of estate:" wherefore the pleas are good, and sufficient to bar the plaintiff's recovery.  

DISPOSITION:
Judgment of the [**6]  General Court affirmed, judgment of the County Court reversed.  

COUNSEL:
Cooke, for the appellant, in the General Court. This was an action of covenant, brought by the plaintiff against the defendant in the County Court of Baltimore, for the recovery of 20l. 11s. sterling, for one year's rent due the first of April, 1786, on the express covenant in a lease made by Richard Moale, deceased, who by his will devised his real estate to the plaintiff.

From the judgment of the County Court the plaintiff appealed to this Court, and assigned the general errors, to which the defendant has replied there is no error, so that it now remains to inquire if the said judgment is erroneous or not.

I shall, therefore, on the part of the plaintiff, endeavour to shew that the said judgment is altogether erroneous and contrary to law.

Covenant is the agreement of two or more persons to do, or not to do, some act or thing contracted between them by deed, under hand and seal, and is either in fact or in law.

Covenant in fact is what is expressly agreed between the parties, and inserted in the deed.

Covenant in law is that covenant which the law intends and implies, though it is not expressed [**7]  in the deed in words; as if a lessor demise a house to his lessee for a certain time, the law will imply a covenant on the lessor's part, that the lessee shall quietly enjoy during the term. 1 Inst. 384.

This action is brought on a covenant in fact, expressly entered into by the lease, and is such a contract as the lessee can never, by any act of his, free himself from.

I shall therefore shew, in the first place, how far the party is bound by express covenants between the lessor and lessee.

I shall secondly shew how far the party is bound by the express covenant to the grantee of the reversion; and, lastly, that the devisee of the reversion is entitled to all the benefit of the conditions and covenants expressly entered into by the lessee.

First. Lawful covenants in fact bind the party expressly though they become afterwards unlawful, 3 Mod. 39. or impossible by the act of God, 2 Danv. Abr. 84., inasmuch as he has expressly bound himself to do it; as to repair a house and it is burned down by lightning, or any other accident. Alleyn, 26, 27. 1 Lill. Abr. 149. But not so of covenants in law. 1 Plowd. 29.

An express covenant binds the party though the right of [**8]  the estate is granted away; 1 Bac. Abr. 535. Bro. Covenant, 32. Roll. Abr. 522 S. C. 3 Lev. 233. Edwards v. Morgan. 2 Danv. Abr. 240. Carthew, 289, 290. or ended, or estate void; 1 Salk. 199. 1 Raym. 388. Northcote v. Underhill. 1 Bac. Abr. 541. Dean of Norwich's case. Though he never occupied or entered, Salk. 209. 1 Raym. 170. S. C. It being by the lease or contract, not by the occupation; also when nothing passed for 5 years, covenant lay for not repairing during that time. 1 Vent. 185. Lewin v. Forth. Though it is burned down and the lessor bound to repair. 2 Stra. 763. 2 Raym. 1477. S. C. 2 Vern. 374. and Com. 627. 630. 632. on covenant to repair when burned by accident.

Covenant lies by the lessor against the lessee after the lessee has assigned his lease and the lessor accepts the rent of the assignee; for the personal covenant cannot be transferred by acceptance of the rent. 2 Danv. Abr. 240. Covenant may be brought against the lessee on contract, or against the assignee on privity of estate, or the lessor may charge both. Cro. Jac. 523.

If lessee covenant to repair or pay rent and grant over his term, yet covenant lies against him or his executors, though the lessor [**9]  hath accepted rent from the assignee. Bull. N. P. 159.

When there is covenant to pay a particular liquidated sum, even a court of equity cannot make a new contract or give relief. 4 Burr. 2227, 2228, 2229.

In leases, the lessee being party to the original contract, continues always liable, notwithstanding any assignment. If a man leases for years, rendering rent, and the lessee covenants for him and his assigns to repair the houses during the term, and after the lessee assigns the term over, and the lessor accepts the rent from the assignee, and after the covenant is broken, notwithstanding the acceptance of the rent from the assignee, yet an action of covenant lies against the first lessee; for the lessee hath covenanted expressly for him and his assigns, and this personal covenant cannot be transferred by the acceptance of rent. Doug. 443. Caton v. Jacques. Doug. 444. Walker v. Reves. Roll. Abr. 522. Cro. Jac. 309. 521. 1 Bac. Abr. 536.

Though all the estate of the lessee is assigned by act of parliament, if there are no words of discharge, the lessee's executor is still liable to covenant for rent. And. 40. 11. Hornby v. Holditch.

Second point. I am now to shew [**10]  how far the party is bound by the express covenant to the grantee of the reversion.

By the statute 32 Hen. VIII. c. 34. grantees of reversions which belonged to any persons, and all other grantees or assighees of any persons, and their heirs, executors, successors and assigns of every of them, shall and may have like advantage by entry for non-payment of rent, or for doing waste, or other forfeiture, and the same remedy by action only, for not performing other conditions, covenants and agreements contained in the said leases against the lessees and grantees, their executors, administrators and assigns, as the lessors or grantors, their heirs or successors ought, should, or might have had at any time or times.

If A. leases to B. rendering rent, and B. covenants to pay it, and afterwards B. assigns to C. and A. grants the reversion to D. and D. after accepts rent from C., yet for non-payment at another day D. may have an action against B., it being upon an express covenant. 3 Levinz, 233. Same case cited in Carthew, 177. Sid. 447. 1 Barnadiston, 372.

Bull. 161. 2 Shower, 134. Covenant by the assignee of the lessor against the lessee after his assignment, and after acceptance [**11]  of rent from the assignee, is good within the statute. Carthew, 183. Admitted by all, that grantee of a reversion may maintain an action of covenant against lessee himself as well in the county where the demise was made as in the county where the lands lie; because the privity of contract between the lessor and lessee is transferred to the grantee of the reversion by the statute of Hen. VIII. Bull. 161. 2 Show. 134. 1 Saund. 240. 1 Leon. 61. Moore, 242. 1 Bar. 537. A. leases a house to B. who covenants to repair on view of A., and notice that repairs were wanting. Afterwards, the house, by the default of B., became ruinous. A. grants the reversion to C., who, upon view of the house, gave warning to B. of the default. If it is not repaired, C. may have an action as assignee of A. against B., though the house became ruinous before C. was entitled to the reversion: for the action is not founded on the ruinous estate of the house, and the time where it first happened, but for not repairing within the time appointed by the covenant after the warning. So is the case of Glover v. Cope, Carthew, 205. in covenant to repair where the second surrenderee of copyhold lands brought covenant against [**12]  lessee, and determined to be within the equity of the statute 32 Hen. VIII. which is a remedial law and of universal use, and absolutely necessary, as well for copyholders as others. 4 Mod. 60. 3 Lev. 326. 1 Salk. 185. Skin. 296. 305.

If lessee for years covenants to leave the house in good repair at the end of the term, and lessor grants the reversion to another, though this covenant is not to be performed during the term, yet for a breach thereof the grantee of the reversion may bring an action, and there cannot be a more apt covenant to run with the land. 1 Bac. 537. Cro. Eliz. 599. 617. See 1 P. in Godbolt, 270, 271.

And these determinations are founded on the reason and justice of the case. The lessor enters into covenant with the lessee, as well relying on the person he contracts with, and from a confidence in the man, that he will faithfully perform his part, as on any other remedy that the law gives him. The tenant was formerly considered as the bailiff, or person intrusted by the person seised, to manage the land leased to him for the benefit of the owner, and to have a share of the profits thereof, and might be cut out of his term, before the statute, by a fine [**13]  or recovery.

Where there was lessee for years rendering rent of lands in Lincolnshire, the grantee of the reversion brought covenant in London for non-payment of rent. It was objected that although the statute gives covenant, yet it was local. It was determined by the Court that the action was well brought, and they declared that the statute expressly puts the grantee in the same light as the lessor, and the diversity between debt and covenant was observed, and it was agreed that if the lessor grants his reversion and the assignee the term, yet covenant lies. 1 Sid. 401. This is a case in point. In the case of Walker v. Reeves, and action was brought by the grantee of the reversion against the assignee in covenant for rent, and it was not there contended but the action would lie if a privity of contract had remained in assignee. Doug. 444.

In Cro. Jac. 522. which same case is undetermined in Popham, 137. Sir J. Brett, assignee of the Queen, granted the reversion, and action was by the grantee. See the same case more largely in Godbolt. The second question was, whether the assignee of the reversion should resort to the executor of the lessee. It was resolved he should be chargeable;  [**14]  for if it is a covenant which runs with the land, the lessee is always chargeable, and by the statute the grantee has the same right. The privity of action is transferred. 2 Saund. 237. Vent. 10. where it is not disputed, but an action lies. It lies by grantee of conusee, to whom no attornment was made against assignee who attorned to grantee. 5 Co. 113. a.

I come now to shew that the devisee of the reversion is entitled to all the benefit of the conditions and covenants expressly entered into by the lessee.

When the statute of uses, 27 Hen. VIII. was made, which transferred the uses into possession, it soon became necessary to introduce the statute of wills, so called, the 32 Hen. VIII. c. 1., whereby all persons were enabled to dispose of their lands by their wills, to any persons who could legally take the same. A will of lands under the statute has been always since considered by the courts of law, not so much in the nature of a testament as of a conveyance, declaring the uses to which the land shall be subject; and upon this notion, that a devise is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels, that [**15]  the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing his will. 2 Black. Comm. 378.

In 2 Black. Comm. 501. devises of lands are said to be conveyances by statute. 1 Wms. 78. It is a declaration of the use, and the devisee is put in the place of the heir at law by the statute. The devisee comes in by the act and limitation of the testator by virtue of the statute of 32 Hen. VIII. c. 34. Co. Litt. 215. Moore, 98. 4 Leon. 27. 29. 1 Bar. 538. in notes.

At the time when the statute of wills was made, and ever since, almost all the lands in England were let out on leases to tenants, many of them for long terms of years, and in no single instance has it been denied but that the devisee is the grantee of the reversion. A. devises to B. for years, rendering rent upon condition to re-enter for non-payment, and after devises the reversion in fee to another and dies; the devisee may take advantage of the condition, though there never was any reversion in the devisor. 2 Leon. 33. Here the right of entering for a condition not performed is acknowledged to a devisee of the reversion under the statute,  [**16]  which shews clearly, that the courts of law have always considered the devisee to be included in the statute 32 Hen. VIII. c. 34. as grantee of the reversion.

If the devisee of a real estate was not, under the statute, to have the benefit of the privity of a contract, all the leases in England would soon have been at an end, and the lessees only hold the lands until they had destroyed them, and then return them to the landlord, or transfer them to any insolvent person. This would be a doctrine which would well suit some late speculators in lands and lots, but would be subversive of the end and meaning of the statute of wills, contrary to common sense and common honesty.

In Lill. Ent. 131. there is covenant by a devisee against the assignee of a term. The same by assignee of the reversion in covenant for rent. Carth. 289, 290. Midgley & Gilbert v. Lovelace.

In 1 Bac. 539. A. demised a house for a term of years to B., who assigned to J. S. The lessor devised one moiety of the reversion to C. and the other to D. who granted the reversion to J. D., after which C. and D. brought covenant against J. S. for rent due before the assignment by them: and it was held, first, that [**17]  C. and D. being tenants in common, may, at their election, join or sever as well in debt as in covenant for rent; but if they sever, they must not each of them make his demand of such a certain sum which amounts to a moiety; but the demand must be of one moiety of the whole rent; and if they can count in debt they may in covenant, and if debt will lie, a fortiori covenant.

Secondly. That this action is maintainable for the arrears of the rent, notwithstanding the reversion was out of the plaintiff; for though the defendant was but assignee of the term, yet the very privity of contract was transferred by the statute 32 Hen. VIII. c. 34. which gives the action for and against assignees; and the contract still remains though the privity of estate is gone. The assignee shall have it, as a fruit fallen from the reversion. At common law, after assignment, the assignor might bring debt for rent before in arrear; but his power over the land being gone, he could not distrain or bring waste.

This case shews clearly that the devisee is considered as the grantee of the reversion, under the statute of 32 Hen. VIII. c. 34. That the privity of contract is transferred thereby, and that it [**18]  still remains though the privity of estate is gone; and therefore the devisee, as grantee of the reversion, may well bring covenant against any persons, either lessee or assignee, for the breach of any covenant or agreement contained in the leases, as the lessors or grantors might have done at any time. See the case in Godbolt, 161., where the devisee of the reversion of a term brought covenant against assignee of an under lessee, and adjudged that the action lay by the statute of Hen. VIII. See the case at large.

When the above cases are attended to, it must evidently appear that the judgment in the county court is erroneous. It says that an action of covenant for the payment of rent must be maintained on the privity of estate, whereas the above-mentioned authorities are, that it lies on the privity of contract, though the privity of estate is gone.

Upon the whole, as it appears from the above cases that the action of covenant well lies by the lessor against the lessee on the privity of contract, after the assignment and acceptance of rent from the assignee; as it also appears that the grantee of the reversion under the statute has the same right in him that the grantor [**19]  had, and the privity of contract is transferred thereby to him, and still remains; and as it also appears that the devisee by will is in the same situation as the grantee of the reversion under the statute, and the devise is considered as a conveyance by statute, and that the privity of contract is transferred to him and still remains, though the privity of estate is gone, I hope there will remain no doubt but that the said judgment is erroneous, and that it will be reversed, and a judgment given for the plaintiff in error for the sum of 33l. 11s. 8d. current money, being 20l. 11s. sterling money, due by the covenant in the said lease, as appears by the narr. and interest thereon, from the time due, with the costs of suit.

By 2 Saund. 107. 5 Com. Dig. 164. if there be judgment by default or confession, and a certainty of the demand appears on record, the court may assess damages; so if there there be judgment for the plaintiff on demurrer, as is the usual course in debt. 1 Roll. 179. 15. 2 Saund. 107. though it be debt on judgment.

On judgment affirmed on a writ of error, a writ of inquiry may issue if it would lie on the first judgment. Prov. Reg. 559.

If the defendant [**20]  has judgment against him by nil dicit, confession, or demurrer, a writ of inquiry may be awarded to inquire of the damages. 5 Com. Dig. 1 Saund. 47. Where the plaintiff brings error, and the court reverses the judgment, they should give him a new judgment; otherwise if brought by defendant. Salk. 263.

Martin, (Attorney-General,) and S. Johnston, also for appellant.

R. Ridgely and D. M'Mechen, for the appellee.  

OPINION:

 [*398]  The General Court reversed the judgment of the County Court, and gave judgment for 41l. 12s. 8d. 1-4. current money, damages and costs, and the appellee appealed to the Court of Appeals; and at June term, 1791, the Court of Appeals affirmed the judgment of the General Court, reversing the judgment of the County Court, and assessed additional damages by way of interest.  

4 of 20 DOCUMENTS 

Henry Griffith's Lessee against Charles Ridgely, by John Ridgely, his Guardian.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 418; 1790 Md. LEXIS 5 

May, 1790, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Timber Neck, lying in Baltimore County, containing 200 acres of land, one undivided moiety whereof Henry Griffith demised, &c.

At the trial of the cause four bills of exceptions were taken.

By the first, it appears, the defendant, to maintain the issue on his part, and to make title to the land mentioned in the declaration, produced to the Court, and read in evidence to the Jury, an act of Assembly passed at October session, 1725, c. 17. entitled "An act to enable Orlando Griffith and Catharine his wife to sell the moiety or half part of a certain tract of land hereafter mentioned, and for entailing other land in lieu thereof." The preamble of the said act recites, that "John Howard, by his will did devise to his two daughters, Rachel and Catharine, the tract of land called Howard's Timber Neck, to be equally divided betwixt them, during their natural lives, and to the lawful begotten heirs of their bodies, and for want of such heirs, to fall to his son Benjamin, and his heirs and assigns for ever," which said Catharine had intermarried with Orlando Griffith, and by whom she had issue. That the said tract originally contained 200 acres,  [**2]  but which, upon inspection, did not contain so much, and that the part assigned for the said Catharine, being at most only 100 acres, is too small for a settlement, &c. The said Orlando and Catharine, by their petition also set forth, that Charles Ridgely had intermarried with the aforesaid Rachel, to whom the other moiety was devised, and that the said Charles was desirous to buy the part belonging to the said Orlando and Catharine his wife, provided an act should be passed to bar the entail, &c. That the petitioners were willing that there should be entailed 100 acres in the same manner, out of the vacancy added by the said Orlando to a tract given him by the said John Howard, likewise under entail to the aforesaid Catharine, called Howard's Luck, which will be far more advantageous to all persons claiming under the entail of Howard's Timber Neck. It was therefore by the said act declared and enacted, "that the said Catharine, and the lawful begotten heirs of her body, and for want of such heirs, Benjamin Howard, his heirs and assigns for ever, shall from henceforth, by virtue of this act, have the same estate, right, title, of, in and into, one hundred acres of land out of the vacancy [**3]  added as aforesaid by the said Orlando Griffith to the aforesaid tract of land called Howard's Luck, lying in Anne Arundel County, in the possession of the said Orlando now being, as she the said Catharine and her lawful begotten heirs, and the said Benjamin Howard, his heirs and assigns, should or ought to have had in case the said 100 acres of land had not been devised in the same manner that the devisor hath devised the aforesaid tract of land called Howard's Timber Neck, by his said will, and in case the said 100 acres had been devised as aforesaid in lieu of the said Catharine's moiety or half part of Howard's Timber Neck aforesaid." It was likewise enacted, "that the said Orlando Griffith and Catharine his wife, be hereby vested with an absolute estate of inheritance in fee-simple, of, in, and unto, the aforementioned moiety or half part of Howard's Timber Neck aforesaid, given as aforesaid to the said Catharine; and be, and they hereby are enabled to convey an absolute estate in fee-simple thereof, to any purchaser or purchasers, their heirs or assigns, in as full and ample manner as if the same land had been devised to the said Catharine and her heirs for ever, by the will [**4]  of the said devisor, without any limitation of estate therein, any thing in the said will, or any law, statute, usage or custom to the contrary notwithstanding: saving to his most sacred majesty, his heirs and successors, and to the right honourable the lord proprietor, his heirs and successors, and all bodies politic and corporate, and all others not mentioned in this act, their several and respective rights."

The defendant prayed the opinion of the Court, that by virtue of the said act of Assembly, a joint estate of inheritance in fee-simple, passed by the said act of Assembly to Orlando Griffith and Catharine his wife. And the Court (JOHNSON, Ch. J. and GOLDSBOROUGH, J.) were of that opinion, and accordingly directed the Jury. To which opinion the plaintiff excepted.

2. By the second exception it appears, the plaintiff, to make title to the tract of land in question, produced and read in evidence to the Jury, a grant from the lord proprietary, dated the 20th of June, 1668, to John Howard, of the said tract of land, in virtue of which grant the said Howard entered into possession of the said land, and died in the seisin and possession thereof.

The plaintiff also gave [**5]  in evidence to the Jury, that the said Howard, by his will of the 29th December, 1703, devised the said land to his two daughters, Rachel and Catharine in fee tail, as tenants in common, who, in virtue of the said devise, entered and were seised in tail, as tenants in common. That Catharine Howard married Orlando Griffith, about the year 1716, and Rachel Howard married Charles Ridgely, about the year 1721, and died in the year 1750; that Orlando Griffith and Charles Ridgely, in right of their wives entered; that Charles Ridgely died in 1772, and that the defendant is his heir at law; that the said Catharine had issue by the said Orlando Griffith, Nicholas Griffith, her eldest son, who died under age and without issue, and Henry Griffith, the lessor of the plaintiff, her heir at law; that Orlando died in March, 1757, and Catharine in February, 1783.

The defendant, to maintain the issue on his part, and to make title to the tract of land in question, produced in evidence the act of 1715, c. 17. (set forth in the first exception,) also a deed from Orlando Griffith and Catharine his wife, to Charles Ridgely, husband of the said Rachel, bearing date the 14th September, 1726, conveying [**6]  to him one moiety or half part of Timber Neck, by virtue of which deed the said Ridgely entered into the said land, and was thereof possessed, and being so possessed, Orlando Griffith and Catharine his wife, executed a deed bearing date the 2d May, 1752 to Charles Ridgely, reciting that the said Orlando, on the 14th of September, 1726, by his deed did convey to the said Charles, one moiety or half part of Timber Neck, and which said deed being considered defective by reason of the said Catharine's not being a party therein, the said estate being the inheritance of the said Catharine, the present deed is executed. The deed then conveys the land in question to Charles Ridgely, in fee-simple, and contains the following warranty. "And the said Orlando Griffith and Catharine his wife, for themselves and their heirs, the said tract or parcel of land, and all and singular other the premises, with their and every of their appurtenances unto him the said Charles Ridgely, his heirs and assigns, against them the said Orlando Griffith and Catharine his wife, and their, or either of their heirs, and all persons claiming by, from, or under them, or either of them, shall and will warrant and defend [**7]  by these presents." The deed was acknowledged by Orlando Griffith and Catharine his wife, before two Justices of the peace, without any private examination of the wife.

The defendant prayed the direction of the Court to the Jury, that by the said deeds and the warranty contained in the last-mentioned deed, the lessor of the plaintiff is rebutted from recovering the premises mentioned in the declaration in this cause, without any proof of assets having descended to him in fee from the said Orlando Griffith.

3. By the third exception, in addition to the evidence in the preceding exceptions, it appeared that the defendant offered in evidence deeds of lease and release, from Catharine Griffith of Anne Arundel County, widow of Orlando Griffith, to Charles Ridgely, dated the 9th and 10th days of March, 1773, acknowledged before two Justices of the Peace, with a certificate from the Clerk of Anne Arundel County, that "the gentlemen before whom the above acknowledgment appears to have been taken, were, at the time of taking the same, two of his Lordship's Justices of the Peace for Anne Arundel County, and that to all acknowledgments, so taken, and by them signed, full faith and credit [**8]  is, and ought to be given." Which deeds, acknowledgments, and certificates, appear to have been recorded in the land records of the Provincial Court. The release was for the purpose of suffering a common recovery, for barring all estates-tail in the tract of land in question.

The plaintiff gave in evidence that the said deeds were not enrolled and recorded in Baltimore County within six months after the dates of the said deeds, and that Catharine Griffith, at the time of making the deeds until her death, did live and reside in Anne Arundel County, and not in Baltimore County; and that the two Justices of the Peace who took the acknowledgments, were, at the time of taking the acknowledgments, Justices of Anne Arundel County Court, and not Justices of Baltimore County Court, and that the certificates of the Clerk of Anne Arundel County Court, endorsed on the deeds, were made by him on the 30th day of April, 1773, and that the said deeds were recorded in the land records of the General Court, on the 27th day of April, 1773.

Thereupon the plaintiff's counsel prayed the Court to direct the Jury, that the deeds from Catharine Griffith to Charles Ridgely were not sufficient in law [**9]  to pass the estate of the said Catharine to the said Charles Ridgely; because at the time of making the said deeds, and taking the acknowledgments thereof, the lands in the said deeds mentioned, did lie in Baltimore County, and the said deeds were not recorded in Baltimore County, agreeably to the act of November session, 1766, c. 14.  

DISPOSITION:
Affirmed.  

COUNSEL:
Arguments on the second and third prayers.

Cooke, for the defendant. On the 20th June, 1668, Timber Neck was granted to John Howard. On the 29th December, 1703, John Howard devises to his daughters Rachel and Catharine, Timber Neck, as tenants in common in tail. In 1716, Catharine married Orlando Griffith, and in 1721 Rachel married Charles Ridgely. On the 30th October, 1725, Griffith and wife obtained an act of Assembly vesting the estate to them in fee-simple jointly, with power to convey in the same manner as if it had been devised to the wife in fee by the will aforesaid. On the 14th September, 1726, Orlando Griffith conveyed to Charles Ridgely, but his wife did not execute the deed: she only relinquished her right on examination before two Justices of the Peace. On the 2d February, 1744, Charles Ridgely executed a warrant of [**10]  resurvey, added vacancy, and called the whole Timber Neck. On the 2d of May, 1752, Orlando Griffith and wife, reciting the defect of the deed of the 14th of September, 1726, release and confirm to Charles Ridgely, his right to the said land, with warranty. In 1750, Rachel, the wife of Ridgely, died. In March or April, 1757, Orlando Griffith died, leaving Catharine his wife, who survived him, and leaving the lessor of the plaintiff his heir at law, who now claims in right of his mother Catharine. In 1772, Charles Ridgely died, and the premises descended to Charles, the son of John, his grandson, Catharine then being a widow. On the 9th and 10th of March, 1773, deeds of lease and release were executed, and common recovery suffered by Catharine, to the use of Charles Ridgely. These deeds were acknowledged before two Justices of the Peace of Anne Arundel County, and recorded in the General Court office. It is also contended by the plaintiff, that at the time of the acknowledgment of these deeds, Catharine was insane. She died in 1783.

1st. By the act of Assembly, passed in 1725, c. 17. the estate-tail of Catharine, in a moiety of the premises, was changed into an estate in fee to [**11]  the husband and wife in the entirety. The act declares they shall hold in fee-simple, an absolute estate of inheritance, and makes no limitation of the estate in case they die without issue as the will had done, which gave it to the wife in tail. The act is to have a liberal construction. 2 Bl. Rep. 1211. 2 Vez. 337. 354, 355, 356.

2. The husband, being seised of an estate of inheritance, the deed of the 14th September, 1726, passed such interest as he might legally pass; though it could not operate to convey the estate of the wife, she being no party to the deed.

The deed may operate as a feoffment. If it operates as a bargain and sale, it will convey a base fee till the entry of the wife. Cro. Jac. 332. 417. Law of Ejectm. 102. If as a feoffment, it would be a discontinuance at law. Litt. sec. 594.

3. The deed of the 2d May, 1752, though not properly acknowledged, is good as a release and confirmation from Orlando Griffith, whereupon to ground the warranty. Shep. 181. Co. Litt. 265. a. 385. a. 371. a. b. Shep. 327. All deeds are to be construed with reference to their subject matter. 1 Durn. 703. This deed is good as a release, without being recorded.

4. If the [**12]  deeds of lease and release of the 9th and 10th of March, 1773, are void, and consequently there is no good tenant to the praecipe, yet the common recovery will operate by way of estoppel. Cruise, 72. Cro. Car. 388. Pig. 33. Sty. 320. Cro. Eliz. 321. But if the conveyance of Orlando Griffith conveyed a base fee, which continued until it was destroyed by the entry of the wife, the possession of Ridgely and the descent on his grandson made him a good tenant to the praecipe. See 3 Co. 3. contra.

There has been a separate and exclusive possession since the year 1726. The act of limitations commenced on the death of Griffith, in 1757. It run more than 28 years before the bringing this ejectment. If a person comes into possession under an agreement, yet if he holds beyond the term, the act of limitations runs. Cowp. 218. Twenty years' adverse possession is a positive title to the defendant. 1 Burr. 119.

At common law, all warranties lineal or collateral, did bind (without assets) the heir they descended on, unless it began by disseisin. Litt. sect. 697. The first law where-by they were restrained was the statute of Gloucester, which barred only a tenant by the curtesy from making [**13]  a warranty, unless he left assets to descend. But all others stood as they did at common law. Then came the statute de donis, which creates an estate-tail, and restrains the alienation of it; otherwise estates-tail would have been in the same situation as all other estates at common law.

Warranties are not mentioned in the statute de donis, but the Judges, adopting the rule in the statute of Gloucester, by the equity of the statute de donis, made it necessary that a lineal warranty to bar an estate-tail should have assets to descend. Freem. 60.

Antecedent to the statute de donis, the distinction of lineal and collateral warranty was unknown and never heard of till a considerable time after this statute; but the inconveniences of preventing alienation having soon appeared, the construction of the Judges, and other statutes, soon broke the fetters of this kind of inheritance.

The Judges in Taltaram's case let in common recoveries in Hen. VIIth's time. 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. let in alienation by fine. 26 Hen. VIII. c. 17. forfeitures for treason; and by 33 Hen. VIII. c. 39. liable to the debts of the king.

Soon after this the Judges determined [**14]  that the statute de donis did not provide absolutely against the alienation of estates-tail, but only against the alienation of the donee; and therefore, that the warranty of any other person descending on the issue in tail without assets, should bar him; and this introduced the collateral warranty. Harg. Co. Litt. 373. b. note.

Thus stood the law until the act of 4 Anne, c. 16. s. 21. which takes away collateral warranty, unless the ancestor is seised of an estate of inheritance in the land at the time of making the warranty. 2 Bl. Com. 303.

If it is objected that a warranty can only be commensurate to the estate to which it is annexed, and that the husband had no right to convey an estate beyond his own life, and that upon his death the estate conveyed by him ceased, and the warranty annexed to it also; it may be answered, that this can only relate to cases where the continuance of the estate appears on the face of the deed to which the warranty is annexed, as warranty annexed to an estate-tail will continue only while the estate-tail continues. So if an estate is made on condition which is defeated by breach of condition. Co. Litt. 387. a. 385 a. 10 Co. 96. b.

Here [**15]  the estate intended to be conveyed is an estate in fee, and the warranty is commensurate with the estate.

If it be said that the estate was determined by the widow, by the admission of Ridgely that he took under the lease and release of the 9th and 10th March, 1773, from Catharine; it may be answered, that those deeds were executed for a particular purpose, to confirm the estate which was before granted to Ridgely; but to give them this construction would be to defeat the estate, contrary to the express intention of the parties.

But if the lease should have the construction contended for, it can only operate to avoid the estate for one year, and if the estate is avoided in part only, the warranty remains. 2 Roll. Abr. 741. Co. Litt. 393. a. 388. b. note 1.

As to the warranty it is immaterial whether it is collateral or lineal. If it is considered as a collateral warranty, yet the husband being seised of the entirety of the inheritance at the time of making the deed, the warranty is good without assets. Litt. sect. 711. 713. Shep. 190. note.

If it is considered that at the time of making the deed the heir might, by possibility, inherit to Orlando Griffith, and consequently [**16]  the warranty lineal, still it will operate as a bar. Co. Litt. 371. b. Litt. sect. 715. Hutt. 22. Litt. sect. 708.

A future right may be barred by a warranty, though the warranty descend first. Co. Litt. 388. a. b. 371. b. So vice versa. Co. Litt. 374. b.

A warranty may be at first lineal, and by subsequent event become collateral. Co. Litt. 371. b. Litt. sect. 708.

If a deed be enrolled which is not required to be so by law, the copy of the enrolment is good evidence. 2 Vern. 471. 591. Bull. 251. If ancient, Gilb. Law Ev. 101. 95, 96, 97. 2 Bac. Abr. 308. 1 Vent. 296, 297.

Warranty may be given in evidence in ejectment, and need not be pleaded. 10 Co. 97. b. 1 Co. 120. b.

If the husband makes a feoffment at common law, it was a discontinuance to the wife, and she was put to her cui in vita. Litt. sect. 594.

Vide 2 Bl. Comm. 127. 3 Com. 433. 2 Inst. 294. 2 Salk. 685. 1 Freem. 57. Co. Litt. 373. b. Litt. sect. 708. 715. Hutt. 22.

The heir at law cannot recover an estate-tail where there has been a recovery of the ancestor erroneous, and not reversed by writ of error. Co. Litt. 349. b. 3 Co. 3. a.

The parties having an estate in the entirety, the [**17]  conveyance made by the father of the lessor of the plaintiff was a lineal warranty, and bars without assets. Co. Litt. 371. b. Sect. 715. 708. Hutt. 22. Though lineal at creation, it might be afterwards collateral. Litt. sect. 708. Co. Litt. 371. If collateral, it is good, and not within the statute of Anne, because he was seised of an estate of inheritance. Litt. sect. 711. 718. Shep. 190. note.

The first deed conveyed only at will, and therefore the second deed is good by release at the time it was made. If it is said that it passed under the statute of uses, it may be answered that the release is a conveyance at common law. Co. Litt. 330. note. If the deed of release is void, yet the warranty is good. Co. Litt. 385. Shep. 327. But if a base fee was conveyed, determinable on his death, yet it was necessary to avoid it by the entry of the wife. Cro. Jac. 332. 417. Gilb. Eject. 102.

A warranty conveys no right, but only rebuts the right of the party and his heirs who makes the warranty. If a man has no right at all, yet he may by a warranty rebut any future title that shall accrue to him. Co. Litt. 385. Shep. 327.

The distinction taken would defeat all warranties; for [**18]  according to their doctrine wherever the estate is defeated there is an end of the warranty. But on the contrary, one can never recover on a warranty until the estate is defeated.

This is a case, if ever there was one, in which the court will make every intendment in their power to defeat the claim of the plaintiff.

They will do it because it was the intention of his ancestors, under whom he claims, to have passed this estate to the family of the defendant.

It was the intention of the legislature to have remedied the defects of such conveyances. They will do it because the defendant, and those under whom he claims, has more than once paid a valuable consideration for this property, and is justly entitled to it in equity.

That the ancestors of the defendant have amply paid for this property, and that it was the intention of the immediate ancestor of the plaintiff to have given a title to what they have sold, no one will deny.

That the legislature intended to have cured all such defects, no one can doubt. It is within same reason of all the cases that are particularly enumerated, and being within the reason, ought to be within the remedy, if, by possibility,  [**19]  such construction can be given to the act.

That such construction may be made without any violation of the words, I think has been shewn.

But if this deed is not remedied by the act of 1785, c. 9. to operate as a release; yet, taken with the common recovery, I contend it is sufficient to rebut the equity of the plaintiff.

Common recoveries are common assurances, and operate as conveyances. Then here is a conveyance to Alexander the demandant; but the gentlemen say, to the use of Mrs. Griffith.

If the act of 1766, c. 14. takes in all kind of conveyances, then such use shall not pass to Mrs. Griffith, unless they shew it in writing.

If the act does not extend to a use of this nature, and they can offer evidence to shew that she was the real owner of the land, and the use, by intent and operation of law, results to her, then upon the same principle we may offer evidence to rebut that equity.

What is the reason that the use results to the person suffering the common recovery, if no other uses are declared. [Cruise, 72. Cro. Car. 388. Pig. 33. Cro. Eliz. 21. Sty. 320. The reason, because when he is vouched he comes in as tenant, and the count is against him.  [**20]  Co. Litt. Estoppel, 352. a. b.]

Because the intention of the parties will be presumed by law, that the person will not part with his estate, unless there is some consideration for it.

But if you can shew there was a consideration, or that the intent of the parties was not that the use should result to the grantor, you may do it.

Instance the case of a devise, making an executor; the residue is given to him by operation of law; but you may rebut that equity by parol evidence.

But how is it to be shewn that the use of this recovery resulted to Mrs. Griffith? She was neither tenant nor demandant.

Suppose this had been a real proceeding instead of a fictitious one; if she had conveyed the estate to Ridgely, and the writ had been brought against them, and he had vouched her, and she had vouched William Rawlings, would the recovery have enured to her use? Certainly not. Then why in the case of a fictitious recovery? Because the law looks at the intention of the parties, and sees for whose benefit it was intended.

But this recovery was not intended for her benefit, and therefore we may rebut that presumption arising by operation of law, by shewing the intent [**21]  of the parties.

But if we consider this case in another view, it will clearly appear this recovery cannot, by operation of law, enure to the benefit of Mrs. Griffith.

We have seen that by the conveyances in 1752, in which she joined, a defeasible estate of inheritance passed to Ridgely, liable to be defeated on the entry of Mrs. Griffith or her heir.

We have seen that by these deeds of 1773, an equitable interest passed from her, and it is at best doubtful whether the legal interest has not passed also.

Then wherever there is a defective, defeasible estate created, and a recovery afterwards suffered, that recovery shall enure to make good all the defects of the former conveyances.

Mrs. Griffith might have entered and defeated these acts; but as she did not, and suffered a recovery expressly for the purpose of effectuating them, the recovery shall enure to make them good by operation of law. Cro. Jac. 417. 1 Wils. 277. 1 Atk. 7, 8.

Common recoveries are not within the conveyances intended by the act of 1766, c. 14.

The spirit of that law was to avoid secret conveyances, and to have a record to which purchasers and creditors might resort for notice.  [**22]  

The common recovery is a record of itself, to which all persons may resort and obtain that notice. Then if the recovery is not within the intention of the law, there is no reason why we may not rebut the equity of the plaintiff by evidence of this nature. If it is within the law, there is no resulting use at all. But if there is a resulting use, I have shewn that the recovery enures to let in the equitable title of the defendant.

Martin, (Attorney-General.) By the operation of the act of assembly, Griffith and wife took an estate in fee-simple in the entirety, and Griffith could not convey by himself any estate, but to determine on his death, which happened in the present case, when the land survived to his wife. 2 Bl. 1214. 2 Vern. 120. Baron and Feme, 210. In 1726, Orlando Griffith made a deed: it is immaterial whether that deed is good or not, or whether it is aided by the act of assembly of 1785. Can the release be better than the deed of 1726, if good. That deed being a deed under the statute of uses, conveyed to Charles Ridgely and his heirs all the estate Orlando Griffith had. A release or confirmation to a person having a legal estate cannot confer a greater estate [**23]  than was before granted. Admit Orlando Griffith to be tenant at will, yet the second deed of release could only enlarge the estate as far as Orlando Griffith had it.

The second deed can only operate as a release. A release operates in one of four ways; by 1. Mitter le estate. 2. Mitter le droit. 3. Extinguishment. 4. Enlargement. This release operates as an enlargement, but can only convey as far as Griffith had a right to dispose of the land, that is, all his interest and no more. And this is on the supposition that Charles Ridgely was not tenant in common, which he was, and therefore could take no release. Will the release create a greater estate than Orlando Griffith had in the land; devest the estate of Catharine Griffith, and thereby work a wrong.

A warranty cannot operate both as a lineal and collateral warranty. The plaintiff might have inherited from Orlando Griffith if he had survived his mother, but as the mother survived the father, he inherits from his mother, and this is a lineal warranty, because Orlando Griffith had a right, conjointly with his wife, and a chance of the whole if he survived. A warranty by the ancestor, if he had no right but by disseisin, will [**24]  bind his issue on the supposition that no ancestor will injure his heir without giving him a recompense or satisfaction. A collateral warranty does not enlarge an estate passed by conveyance. 10 Co. 97. Orlando Griffith could pass no estate but one determinable on his death, if his wife survived. If an estate passes by a conveyance with warranty, it does not enlarge it; but when the estate is avoided or ceases, the warranty ends with it. 5 Bac. Abr. 449. 10 Co. Seymour's case. Warranty never bars unless the estate is turned to a naked right. 10 Co. 97. Did the release by Orlando Griffith to Charles Ridgely, who is admitted to be a tenant at will, turn the estate of Catharine his wife to a naked right? did the deed affect his wife's interest, he did what he lawfully might do, and no more.

No man can be tenant by the curtesy until after the death of his wife. The words of the statute of Gloucester does include the present case. The statute of Gloucester is to have a liberal construction, and if the case is within the letter and the mischief of the statute, it should be construed to be within the statute. The first clause precents tenants by the curtesy from injuring the their, and [**25]  extends to tenants for life. The heir cannot be barred by a conveyance and warranty made by the father in the life of the mother. This case is within the mischief of the statute of Gloucester, or it is not. If within the mischief, the decision ought to be for the plaintiff. The warranty is lineal, and cannot bar the person claiming from his mother and not from his father, who made the warranty. The deed of Orlando Griffith either turned the estate of his wife to a naked right, or it did not. If it did, it is a disseisin, and the warranty cannot operate. If it did not, but only passed an estate for the life of Orlando Griffith, then the warranty expired on his death. 2 Bl. 302. A warranty cannot enlarge an estate. 1 Bulst. 163. 166. 22 Vin. Abr. (Voucher,) 34. It is a maxim of law, that no warranty shall extend to bar any estate of freehold or inheritance which is in esse in possession, reversion, remainder, (and not displaced and put to a right,) before or at the time of the warranty made, although afterwards, and at the time of the descent of the warrant, the estate of freehold or inheritance was devested. 10 Co. 96, 97.

Martin, Attorney-General, S. Chase and Key, for the appellant.  [**26]  

Cooke, M'Mechen, and Pinkney, for the appellee.  

JUDGES:
JOHNSON, Ch. J. and GOLDSBOROUGH, J.  

OPINIONBY:
JOHNSON; GOLDSBOROUGH 

OPINION:

 [*433]  The Court, (JOHNSON, Ch. J. and GOLDSBOROUGH, J.,) on the second prayer, were of opinion, and so directed the Jury, that the warranty contained in the said deed bearing date the 2d of May, 1752, is a lineal warranty, and does not rebut and bar the claim of the lessor of the plaintiff unless it be proved that he received assets by descent from Orlando Griffith. To this opinion the defendant excepted.
On the third prayer the Court were of opinion that the deeds of lease and release were sufficient in law to pass the estate of the said Catharine Griffith to the said Charles Ridgely, and directed the Jury accordingly.
The Court also were of opinion, a that the words of reference 

 [*434]  "first herein mentioned," in the act of assembly of 1766, c. 14. s. 3. relates to the Provincial, Court and it is within the equity of the act, that the deed should be recorded in the General as well as the County Court, and no reason can be assigned why it should not. There is a reason why the certificate should go from one county to the [**27]  other, because the Justices of one county had no cognisance of the powers of the other. But the General Court Judges pervaded the whole, and the commissions of the Justices of the Peace are all recorded in the office of the General Court. If it had not been for the last clause, the clerk of the county would have had no authority to record the deed at all, but only the clerk of the General Court.

a This part of the Court's opinion does not appear on the bill of exceptions, but is taken from Mr. Cooke's notes.

The plaintiff excepted to this opinion.
By the 4th exception it appears: The plaintiff offered evidence that on the day before the execution and acknowledgment of the deeds of lease and release from Catharine Griffith to Charles Ridgely, the said Ridgely sent to Joshua Griffith, son of the said Catharine, the following letter, viz.
"Sir--I shall be up at your house on Monday morning to see you and your mother concerning the land I hold called Timber Neck. If there should be any [**28]  thing doubtful in my title, I hope it will be in our power to settle amicably with your assistance. If your mother should not be at your house, I should take it a favour if you should get her there on Monday morning if agreeable. If it is not in your power to do it, I beg you will let me know where I may meet with you and her on Monday morning.
Charles Ridgely, son of Jno."
That the said Joshua Griffith sent for and procured the attendance of the Justices who took the acknowledgment of the said deed, and held and guided the hand of the said Catharine while she signed the said deed; also that the said Justices, at the time of the execution and acknowledgment of the said deed, trusted to the information of the said Joshua Griffith as to the said Catharine's having any 

 [*435]  knowledge of the contents of the said deeds, without inquiring of the said Catharine whether she knew the contents thereof, or reading the said deeds to her, or informing her of the contents thereof. And further gave in evidence the depositions of the two justices before whom the said deeds were acknowledged, stating that the deeds were not read to the said Catharine by them, and [**29]  that she was very deaf, and that the said Joshua Griffith received from the said Charles the consideration for which the said deed was executed.
The plaintiff further offered in evidence that the said Catharine Griffith, at the time of the execution and acknowledgments of the said deeds had not sufficient reason and understanding to make a deed to convey land or dispose of property; and offered further to prove this fact by hearsay; and that the said Joshua Griffith, some little time after the execution and acknowledgments, did declare, that he was present at the execution of the said deeds and acknowledgments thereof; that his mother, the said Catharine, knew nothing of it; that he guided her hand and transacted the whole business, and that she had not at that time sufficient reason and understanding to convey her hand or to make a deed.
To this evidence, so offered to be given, the defendant objected, and the Court (JOHNSON, Ch. J. and GOLDSBOROUGH, J.) were of opinion, that the evidence so offered to be given was improper and inadmissible. The plaintiff excepted to this opinion.
Judgment for the defendant.
The plaintiff appealed to the Court of Appeals.  [**30]  
In the Court of Appeals, June term, 1792.
Cooke, for the appellee. The husband being seised of an estate of inheritance, the deed of the 14th of September, 1726, passed such interest as he might legally pass, though 

 [*436]  it could not operate to convey the estate of the wife, she being no party to it.
It may operate as a feoffment. If as a bargain and sale, it will convey a base fee till entry made by the wife. Cro. Jac. 332. 417. Law of Eject. 152. If as a feoffment, it would work a discontinuance. Litt. sec. 594.
The deed of the 2d May, 1752, though not properly acknowledged, is good as a release or confirmation from Orlando Griffith, whereupon to ground the warranty. Shep. 181. 327. Co. Litt. 265. 371. 385.
All deeds are to be construed with reference to their subject matter. 1 Durnf. 703. This deed is good as a release without being recorded.
At common law all warranties, lineal or collateral, did bind without assets the heir they descended on, unless it began by disseisin. Litt. sec. 697.
The first law whereby they were restrained was the statute of Gloucester, which barred only a tenant by the curtesy from making [**31]  a warranty, unless he left assets to descend. Why make this statute if a warranty would not bar without assets?
But all other cases stood as they did at common law Then came the statute de donis, which creates an estate-tail, and restrains the alienation of it; otherwise estates-tail would have been in the same situation as all other estates at common law.
Warranties are not mentioned in the statute de donis; but the Judges adopted the rule in the statute of Gloucester, and by an equitable construction of the statute de donis, made it necessary that a lineal warranty to bar an estate-tail, should have assets to descend. Freem. 60.
Thus stood the law: Tenant by the curtesy, by the statute of Gloucester, and tenant in tail by the construction of the statute de donis, could not bar their heirs by warranty, unless they left assets by descent. But all other persons might.

 [*437]  Orlando Griffith was neither, tenant by the curtesy, nor tenant in tail; and therefore he might bar his heir.
There is no statute law, no adjudged case to the contrary: if there is, I call on the gentlemen to produce it.
But there are many cases [**32]  to the contrary. Litt. sec. 706, 707. 711, 712. 2 Bl. Comm. 301, 302.
Warranty without assets binds an estate in fee, but not an estate-tail. Jacob Com. Law, 390. 3 Com. Dig. 432.
Third exception. The words of reference in the third section of the act of 1766, c. 14. "first herein mentioned," relates to the first clause, and is within the equity of the act. No purpose can be answered by recording the deed in the County Court that is not effected by the recording it in the General Court.
There is a reason why the certificate should go from one County to another, because the Justices of one County have no cognisance of the power of the Justices of another County; but the power of the Judges of the General Court pervades the whole state.
If the deed is acknowledged in the County, it may be recorded in the General Court, which shews the last words respecting the certificate were only to enable a record in the County where the land lay, and without it the clerk of the County could not record. But if that clause had been left out it might be recorded in the General Court.
First exception. By the act passed in 1725, the estate-tail of Catharine in [**33]  a moiety was changed into an estate in fee to the husband and wife.
The act declares they shall hold in fee-simple an absolute estate of inheritance, and makes no limitation of the estate in case they die without issue, as the will had done, which gave it to the wife in tail. 2 Bl. Rep. 1211.
The act is to have a liberal construction, and to be considered as a will.  2 Ves. 354, 355, 356.
Fourth exception. Hearsay not evidence. The witness 

 [*438]  must speak of facts, and the Court or Jury judge of them. Bull. 289, 290.
If the first speech is without oath, the second is no better. If living, what he was heard to say is not the best evidence.
Pinkney, for the appellee. First point. By the act of assembly, Griffith and wife take a fee in the moiety by entireties. 2 Ld. Raym. 1144, 1145, 1146.
1st. It appears from the preamble of the act, that Orlando Griffith was a purchaser for a valuable consideration. It could not therefore be the intention of the act to settle the whole on the wife.
2d. The enacting clause in express words gives them a joint interest in fee, and the subsequent words do not take it away. The [**34]  subsequent words only prove that the draftsman of the act did not understand the power of alienation incident to the estate created.
But no implication is to be admitted against the positive words.  2 Ld. Raym. 1152. And it is inconceivable that after the law has positively created a joint estate of inheritance in the husband and wife, such estate is destroyed by the legislature proceeding to give their ideas of the power of alienation consequent upon it.
3d. Words that would make others joint-tenants will make husband and wife each tenants of the entirety. 2 Bl. Rep. 1211. Co. Litt. 299. b.  2 Vern. 120. 2 Lev. 39. And the words of this act will clearly create a joint-tenancy in a common case. 2 Bl. Com. 180.
Second point. Although the alienation of the husband (where baron and feme are seised of the entirety in fee) is voidable by the entry of the wife after the husband's death, or by the entry of the heir of the wife surviving, yet it is good until so avoided, as a transfer of the fee. Pigot, 72. shews that his potestas alienadi is as great as that of a tenant in tail.

 [*439]  2 Ld. Raym. 779. [**35]  1 Bl. Rep. 252. shew, that in the case of tenant in tail, his alienation even by deed of bargain and sale will pass the fee till the entry of issue. See also, Cro. Jac. 332. 417. Law of Eject. 102.
The distinction between the operation of conveyances to uses, and common law conveyances, (as feoffment,) which operate upon the possession, seems to be that the first may be avoided by entry, but are good until so avoided, while the latter work a discontinuance, and by tolling the entry put the estate to a right. So that the nature of Orlando Griffith's estate enabled him, even by a mere conveyance to uses, to pass a base fee in the entirety, defeasible by a subsequent entry of those who had right.
Third point. The first deed (in 1726) will make the person entering under it (Charles Ridgely) tenant at will to Orlando Griffith. Co. Litt. 56. b.
Fourth point. The second deed (in 1752) may enure as the release of Orlando Griffith. 2 Bl. Comm. 324, 325. And a release to a tenant at will is good. Shep. Touchst. 321.
The two deeds then, taken together, operate as a transfer of a base fee in the entirety to Charles Ridgely; so that unless Mrs.  [**36]  Griffith, in her life-time, (after her husband's death,) did actually enter and avoid, Charles Ridgely, or those claiming under him, had at the time of her death a base fee, which could only then be avoided by the entry of her heir. But
Fifth point. The heir could not enter and avoid, because he was rebutted by the warranty contained in the deed of 1752.
Warranties are to be favoured. 5 Bac. Abr. 453. Co. Litt. 365. b.
This warranty is lineal. Co. Litt. 375. a. s. 715. "Wherever the heir could, by any possibility, derive his title by descent to the lands warranted through the warranting 

 [*440]  ancestor, the warranty is lineal." See also, 2 Bl. Comm. 301.
In this case there was a plain possibility that the heir might have claimed through Orlando Griffith, the warranting ancestor, by the wife's dying first. The warranty therefore is lineal.
Let us now consider, then, whether as a lineal warranty it will bind under all the circumstances of the case. And here we are to consider how it would stand at common law. And again, if good at common law, whether it is impeached by any existing statute.
1st. At common law all warranties by [**37]  the ancestor bound the heir on whom they descended, except in the single case of a warranty commencing by disseisin. 2 Bl. Comm. 301, 302. Litt. sect. 697. Gilb. Ten. 140, 141.
It was totally immaterial whether the warranting ancestor had any right in the premises. His warranty rebutted in all possible instances, that by disseisin excepted.
As this is unquestionably the general rule, we must endeavour to discover whether the present case comes within any known exception to it; and
1st. It was objected in the court below, that this warranty is void, quia it commenced by disseisin.
I answer. To constitute a warranty by disseisin is impossible where no disseisin exists: for to make such a warranty, it is necessary not only that there should be a disseisin committed, but that it should be committed by the ancestor warranting, or that he should at least be a party to it. And again, that the warranty and disseisin should be simul and semel, or at least that the disseisin should have been with intent to make the warranty, and quasi uno tempore with the warranty. 2 Bl. Comm. 302. Litt. sect. 698, 699. 702. Co. Litt. 367. a. 369. b. (bottom.)  [**38]  
Examples. The son purchases land and lets to the father for years or at will. The father enfeoffs another with warranty. The feoffment is a disseisin to the son, and the 

 [*441]  warranty therefore void. Litt. sect. 698. So if the father be tenant by elegit, or statute, of the son's land, and make a feoffment with warranty. Litt. sect. 698. So if the father be tenant for years, with remainder to the son in fee. 2 Bl. Comm. 302. So if the father disseise the son by an entry and ouster, with intent to enfeoff with warranty. Co. Litt. 367. a.
All these warranties are void, because either a previous disseisin is committed by the ancestor, with the express intent of enfeoffing with warranty, which, if afterwards done, the law couples on account of the intent, with the disseisin, or the very deed in which the warranty is contained operates in itself as a disseisin.
But in our case, Orlando Griffith disseised nobody, either previously to his release, or by it. He could not make a disseisin as to his moiety, because he was seised of the inheritance himself.
To disseise the heir was impracticable at any rate, for living his ancestors he had nothing in the [**39]  premises.
This could not, therefore, be a warranty commencing by disseisin.
2dly. It was also objected in the Court below, that this warranty is inoperative on the heir upon another ground.
1st. That a release is an equitable conveyance, and transfers no more than the party had a right to pass; and that of course Orlando Griffith, by his release to Charles Ridgely, only transferred an estate for his own life.  2 Burr 704--715.  10 Co. 96.
2d. That a warranty is only commensurate with the estate to which it is annexed, for that it cannot enlarge an estate, and ceases with it.
I answer as to the first position. It might be contended that it is not law to the extent laid down, agreeably to the authorities already cited.
I might argue that it is true a release without more does not toll an entry, as a feoffment does, after the determination 

 [*442]  of the estate which the grantor had a right to pass; but that an estate granted by a release or bargain and sale, continues till avoided by entry. That the true difference is this: if a man having only a defeasible or limited estate conveys in fee by release or bargain and sale, the person [**40]  having right may enter on the expiration of the grantor's right, and avoid, but the estate continues until so avoided. But if, instead of a release or bargain and sale, a feoffment is used, the estate cannot be avoided by an entry, but only by judgment in a real action. In a word, that the feoffment works a discontinuance, which the release, or bargain and sale, without more, does not.
But it is totally immaterial, quacunque via data, for let the operation of a release (as an equitable conveyance) be what it may, unconnected with a warranty, yet when so connected, it has all the effect of a feoffment to pass a fee, and equally produces a discontinuance. Gilb. Tenures, 120. Harg. Co. Litt. (note) 330. b. Litt. sect. 601. Salk. 245.  8 Vin. Abr. 513, 514, 515, 517, 523, 524, 525, 526, 532, 533. 2 Reeves 141.
The reason is obvious. The release passes a defeasible fee, avoidable by entry, and the warranty annexed rebuts the entry. For it is to be understood that a warranty passes no right in itself, but merely rebuts the right of another. Shep. Touch. 327. 5 Bac. Abr. 447.
The principles contained in this objection would be extremely [**41]  just and applicable if the warranty was distinct from the release, and not inserted in it.
As it stands, it is no objection at all, for at common law the release of tenant by the curtesy, or even of an ancestor having no interest at all with a warranty annexed, was a complete rebutter to the heir. This is proved by the statute of Gloucester of 11 Hen. VII. and by Co. Litt. 385. 387. Litt. sect. 738. Shep. 181. 327. Co. Litt. 265. 371.
When it is said in the books that a warranty cannot 

 [*443]  enlarge an estate, the meaning is where the warranty is not contained in the deed creating the estate.
Thus, if a deed without warranty passes no more than a life estate, no subsequent warranty operating upon or having reference to that deed can enlarge or have effect beyond it. Such is Seymour's case, 10 Co. 97. which was cited against us, in the General Court, in support of the objection now under consideration. In Seymour's case there was no discontinuance, because the warranty was not coupled with the deed. In our case there was a discontinuance for the reverse cause. The fine in Seymour's case operated on what passed by the [**42]  deed, and so the warranty.
But Seymour's case is fully explained in 5 Bac. Abr. 96. and 2 Burr 704--715.
The rule, too, that a warranty ceases with the estate to which it is annexed, is to be explained in the same manner, i. e. the estate on the face of the deed in which the warranty is contained.
As, if the estate be on condition, the warranty is extinguished when the condition is broken. Co. Litt. 385. a. 387. a.  10 Co. 96. b. And so is 5 Bac. 449. (cited against us in the General Court,) "the defeasance of the estate destroys the warranty." I take this objection, therefore, not to be supportable.
3dly. It was also said in the General Court that a warranty never rebuts but where the estate is put to a right, or, in other words, discontinued. This is the true principle of Seymour's case, and is good law. But here it is proved by the authorities that the estate was discontinued by the release with warranty; and so would it have been in Seymour's case, had the warranty been inserted in the deed, or the deed and fine had been taken as one conveyance, as in 2 Burr 704--715.
4thly. It was also said that [**43]  none but collateral warranties barred at common law, where the party warranting could not rightfully transfer the interest warranted.

 [*444]  I answer. I should like to hear a reason for this distinction, because I can think of none myself but what operates against it. Litt. sect. 704. 706. are both lineal warranties where ancestor had nothing in the premises, and yet good; and so are all the cases in Littleton.
5thly. It was also said that lineal warranty only bars where the heir claims under the title of the warranting ancestor, and in this case he claims ex parte materna.
I answer. This would destroy the definition of lineal warranty, "may by possibility." It is further answered by the authorities in Litt. sect. 706, 707.
6thly. It was also said that there could be no release of one tenant in common to another for want of privity, and that therefore our release, and of course the warranty, was void.
I answer. This release was to tenant at will, and that is good according to Sheppard before cited.
7thly. Another objection was, that the warranty descended before the right.
Co. Litt. 371. a. is an answer to this.
8thly. The next and last objection [**44]  taken to the operation of this warranty at common law was, that it did not bar without assets. And of this opinion were the General Court.
I answer. The distinction is between fee and tail. Litt. sect. 711, 712. Coke's Comm. 374. a. and b. 5 Bac. 441. expressly, and cites Litt. ubi supra. See also, Vaugh. 375. 3 Com. Dig. 432.
The arguments of counsel, and the opinion of the General Court, were grounded on what is said in 2 Bl. Comm. 302. where, although it is positively laid down that a lineal warranty rebuts an heir in fee, without assets, yet this reason is given for it, "for if he (the heir) could succeed in such claim, (i. e. against the warrantee,) he would then have assets by descent, though he had them not before."
In favour of the rebutter without assets, no authority can be more express; but the reason given is to destroy the whole force of the operation itself. Let us examine it.

 [*445]  1st. The reason assigned by Blackstone only applies to the original introduction of the rebutter. He only means to shew the student his idea of the grounds upon which a lineal warranty was at first held to be a rebutter to the heir [**45]  without assets. But he himself goes on to shew that the rule as to the rebutter was always extended beyond the supposed reason; for it was extended to collateral warranties where it was impossible the reason could have any application. He lays down the rule, and then proceeds to state the cause of its being introduced, but by this he never meant to limit the operation of the rule itself, which he states without any such qualification.
That the rule has no such limitation, is clear from undeniable authority already cited.
2dly. But Blackstone does not assign the true reason. A more simple, and a much more consistent and probable one is given by Lord Coke. (Co. Litt. 373. a. Comm. on sect. 709.) It is more in the spirit of the times which gave use to these rebutters. "Naemo prasumitur alienam posteritatem suae praetulisse." And the same reason is assigned by Blackstone himself, as will be shewn hereafter.
3dly. Let the reason of the first introduction of the rule be what it may, it is impossible the doctrine of the General Court can be right.
The principle contended for, is, "that no lineal warranty was a rebutter at common law, unless where the land warranted,  [**46]  if recovered by the heir, would be assets from the warranting ancestor, and liable on a warrantia chartae."
If this be the case, all lineal warranties (as rebutters) without assets, are annihilated at once, and no possible case exists, or ever did exist, since the statute of quia emptores, where they can or could operate; for no instance can be conceived where the land warranted would, if recovered by the heir, be assets from the warranting ancestor, except where the warranting ancestor had good right to convey, and was seised of the fee. But in such a case the deed itself would be a sufficient title without the aid of warranty, and of course the warranty would be totally 

 [*446]  inoperative as a rebutter. Harg. Co. Litt. (note) 374. b.
Thus would this doctrine totally destroy the whole force and efficacy of the rule, that a lineal warranty rebuts, without assets, an heir in fee-simple; for, according to it, a lineal warranty never rebuts but where there is no use for it, i. e. where the ancestor was tenant in fee, and of course had given a good title by his mere deed; so that, to gratify the reason given in Blackstone's Commentaries, the rule he lays down [**47]  is to be subverted, and to be made applicable to not a single case that can be conceived.
Let us now look into the authorities, and see what are the lineal warranties that have been held to be bars without assets. Are they the cases alluded to by the General Court, i. e. where the land, if recovered, would be assets? Directly the reverse. And there is not a case in Littleton, upon lineal warranty, that would be law if the General Court are right.
Litt. sect. 706. "Grandfather, father and son; grandfather is disseised; the father releases with warranty and dies; the grandfather dies; the son is barred by this lineal warranty, because he could not convey the right to the lands but through the father."
Coke's Commentary. "Here Littleton putteth an example where the son must claim the land as heir to his grandfather, and yet, because he cannot make himself heir to his grandfather, but by his father, it is lineal."
Litt. sect. 707. is another case in point. Coke's commentary thereon: "Here Littleton putteth an example where the heir that is to be barred is not to make his descent by him that made the warranty, as in the case before."
In this [**48]  case it is clear the land would not have been assets from the elder brother making the warranty, and yet no assets are required to make it a bar. And in all Littleton, or Coke's Commentaries, there is not a case on lineal warranty operating as a rebutter without assets, where the land, 

 [*447]  if recovered, would have been assets, &c. There is no such case to be found in any authority, because it is impossible it can exist.
It is further to be remarked, that no attempt has been made to produce any case recognizing the distinction taken by the General Court, except Blackstone's Commentaries, which is the reverse of their opinion.
It is plain, then, that assets are not necessary to perfect a lineal warranty at common law.
But let us now consider the cause why warranties were introduced in deeds of alienation, and we shall find that they were not resorted to so much with a view to the yielding other lands in case of eviction, as to produce a rebutter against the heir, whether assets descended to him or not. Vide Dalrymp. Ten. 96--1 02.
It is well known that after feuds became hereditary, and before the statute of Hen. I. c. 70. which in part opened the door [**49]  to transfers of real property, and the statute of quia emptores, which gave the power of unlimited alienation, the feudatory could not aliene his feud for more than his own life, without the consent of his next heir apparent as well as that of the lord. 2 Bl. Comm. 287, 288.
A restriction so inimical to all the objects of commercial and civil intercourse was submitted to with difficulty, and every means devised to evade its operation. With a view to the heir it was found to be practicable, by inserting in the deed of alienation a covenant real, called a clause of warranty, which, descending upon him, rebutted his claim, and thus effectuated the subinfeudation, not by giving a right to the subinfeudatory, which was impracticable, but by repelling the right of the heir, who alone could have defeated it.
The justice and propriety of this mode of eluding the strictness of the feudal policy, to the disherison of the heir, were supported by a reason, in all probability, seldom founded in fact, viz. that it was presumable "no ancestor would wantonly disinherit his next of blood; and, therefore, 

 [*448]  that the heir had received a valuable consideration either in land, or in [**50]  money which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty." 2 Bl. Comm. 301.
"So that (2 Bl. Comm. 301. in continuation) when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee to one who was already in possession, and superadded a warranty to his deed, it was held" (on the presumption of assets, not that he really had) "that such warranty not only bound the warrantor, but also his heir: and this, whether the warranty was lineal or collateral."
It appears from this deduction, that the sole object of warranties, in their original, was to rebut the heir from claiming his inheritance from the subinfeudatory of his ancestor; and that to complete the rebutter, proof of assets was never required, the law in favour of alienations always presuming an equivalent had been given.
And if this was so in the original, we have seen that instead of warranties being narrowed in their effect by super-induced restrictions, they were still farther extended with the progress of commerce, until statutes were passed producing alterations. Of [**51]  this, the almost endless cases on collateral warranty to be found in the books is clear and decisive proof.
Before the statute de donis the distinction between lineal and collateral warranties was unknown. That statute introduced it; and, of course, at common law, the operation of both warranties is precisely the same. See Reeves. And it is admitted that collateral warranties barred without assets.
On this part of the case the note in Harg. Co. Litt. 373.a. had some weight in the court below. I see nothing in it that entitles it to the slightest. Part of that note is obviously not law. Examples: "Without assets the ancestor's warranty never did, and does not now, bind the heir, except when he takes by purchase." I apprehend this must 

 [*449]  mean "an obligation to yield other lands on eviction." If so it is true. But if the annotator is here speaking with a view to the rebutter, his remark is not true in a single instance at common law, and in few now.
Did the heir of tenant by the curtesy take by purchase? Did the heir of tenant in dower? Did the heir take by purchase in any instance of either lineal or collateral warranty in Coke Littleton? [**52]  
And yet in all these cases the warranty at common law rebutted without assets.
"Upon inquiry it will be found that the cases where the operation of warranty still remains are reduced to two: 1. Tenant in tail to bar issue with assets; 2. Tenant in tail to bar those in remainder without assets."
I answer that upon inquiry it will be found there is hardly a syllable of truth in the whole of this position. And as it falls in with the course of the argument in this cause, I shall endeavour to shew it.
I take it that warranties remain at this day as they were at common law, except so far as they have been altered by statute. We have already seen the extensive operation of them at common law, and it now remains to consider how far statutes have interfered with, or narrowed, their operation. This inquiry is the more material, as, in the Court below, statutable restrictions were relied on by the plaintiff's counsel in defeasance of this warranty.
1. The first statute that had any effect on warranties was the statute of Gloucester, 6 Edw. I. c. 3. by which the collateral warranty of tenant by the curtesy either during the wife's life, or after her death, was declared to be [**53]  no bar without assets. Hargr. note, ubi sup. 2 Inst. 292, 293, 294. 3 Bl. Comm. 302, 303. 3 Com. Dig. 432, 433. Gilb. Ten. 141, 142. There may be tenants by the curtesy, living the wife. 2 Bl. Comm. 127.
2. Statute de donis, 13 Edw. I. c. 1. On the construction whereof, by analogy to the statute of Gloucester, it was held 

 [*450]  that the warranty of the tenant in tail should not bar the issue without assets, which proves it always did in fee-simple cases. See Gilb. Ten. 142. Reeves.
3. Statute 11 Hen. VII. c. 20. makes void the warranty of tenant in dower.
4. Statute 4 and 5 Ann. c. 16. vacates all warranties by tenant for life, and the collateral warranty of any ancestor not having an estate of inheritance in possession.
These are all the statutes in any manner affecting warranties, none of which, except the statute de donis, with a view to the heir in tail, relate to lineal warranties. Subject to the restrictions and provisions of these statutes, warranties are now as at common law. It follows, that instead of what is laid down as to the present state of warranties by Hargrave in his note,  [**54]  lineal warranties descending upon an heir in fee-simple have, without assets, as full and complete an operation in all respects as they had at common law. Collateral warranties are indeed much narrowed; for, except the case of tenant in tail barring those in remainder by his warranty, I do not know a case where collateral warranty without assets would now be a bar.
I have shewn, then, that this warranty is a good lineal warranty, and would bar at common law without assets. I I have also shewn that no statute impeaches it, or makes assets necessary to its efficacy. It follows that on this part of the case the plaintiff was barred of his ejectment, and that therefore the judgment should be affirmed.
But admitting that the warranty did not bar without assets, still it appears from what has been shewn that the plaintiff could not bring ejectment.
1. To recover in ejectment the plaintiff must have a right of entry.
2. A discontinuance tolls the entry of the heir.
3. We have shewn that the release with warranty discontinued the estate and put it to a right.

 [*451]  If the tenant in tail releases with warranty, it is no rebutter to the issue if no assets descend.  [**55]  But it still puts him to his formedon. He cannot bring ejectment.
Feoffment with warranty binds the heirs only to render the value as it was at the time of the feoffment. 2 Bac. Abr. 129. Co. Litt. 32. a. Perk. 323. If the husband makes feoffment in fee of lands, and feoffee afterwards improves them in value, the wife of the feoffor shall have dower only according to the value in the husband's time. Id. ib. Otherwise, if the heir of the husband improve after husband's death, for then she shall have dower of the improved value, quia her title consummate at the husband's death.
On the third bill of exceptions. The sole question on this exception arises on the deeds of lease and release executed by Mrs. Griffith, after her husband's death, to Charles Ridgely, the heir, in 1773, (March 9th and 10th,) acknowledged before two Justices of Anne Arundel County, where Mrs. Griffith resided, and recorded in the Provincial Court; and the Court below have adjudged them good.
By the act of November session, 1766, c. 14. s. 3. it is provided that when the person, &c. making any deed, &c. "shall live remote from the Provincial Court, or [**56]  out of the County," &c. "such person to acknowledge the same in the County Court of the said County, or before two Justices of the said County, wherein he, she, or they, shall reside," &c. &c. "Such deed or conveyance shall be taken, &c. and shall be as good and valid as if the same had been acknowledged in manner first herein mentioned."
And the manner first therein mentioned in the second section (the first section being merely the preamble) is, that if the deed is acknowledged in the Provincial Court, or before one of the Justices thereof, &c. it may be recorded either in the records of the County where the land lies, or in the records of the Provincial Court.

 [*452]  To give this act a rational construction, it cannot be presumed that the Legislature meant to confine the recording of such a deed to the County Court, when all others are permitted to be recorded in the Provincial (now General) Court.
The only argument that can be raised against us is on the words "and such certificate shall be a sufficient warrant for the Clerk of such County where the lands, &c. do lie to enrol," &c. Had it not been for these words, there could have been no doubt; and it appears [**57]  to me they ought to create none. There was a propriety in this provision, and no necessity to say any thing of the Provincial Court.
The General Court are supposed to know who are Justices in the several Counties, and who are not, the commissions being all recorded in their records. In another County they are not supposed to know it, and therefore this provision. Had it not been for this provision, the deed could not have been recorded in the County Court at all. The act ought to receive a liberal construction.
In this case there are four exceptions, one by the defendant, and the others by the plaintiff; and although the Court of Appeals should differ from the General Court on the opinion in favour of the plaintiff, yet if on the other exceptions it appears that the ultimate judgment is right, they will not reverse. Cowp. 502. Lord Mansfield's Opinion. 504. J. Ashhurst's Opinion.
In our case two titles were brought before the Court, and if on one of these titles we were entitled to a verdict and judgment, and it so appears upon the whole record, the Court of Appeals will affirm our judgment.
If the judgment is reversed here, the plaintiff can only begin again, for the [**58]  cause cannot be remanded, having come up before the late act.

 [*453]  The Court of Appeals, at November term, 1792, affirmed the judgment of the General Court on the 1st, 3d, and 4th exceptions.  

5 of 20 DOCUMENTS 

Edward Norwood, heir at law of Nicholas Norwood, against The Attorney-General, at the Relation of Josias Bowen.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 201; 1787 Md. LEXIS 4 

October, 1787, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from a decree of the Court of Chancery, vacating a patent, and making perpetual an injunction on a judgment at law.

The information, which was filed on the 13th of April, 1775, by and in the name of Thomas Jenings, Esq. the lord proprietary's Attorney-General, at the relation of Josias Bowen, states, "that the lords proprietaries of this province have long used to grant warrants of resurvey to their tenants who hold lands in fee-simple on their application to the land-office, to resurvey such lands, correcting errors in the original surveys thereof, and add contiguous vacancy; and on such persons returning certificates of resurvey made in virtue of such warrants, paying 1s. sterling per acre for the vacancy added, and reasonable sum for the improvements (if any) on such vacancy, and back rents (if any due) within two years from the date of such warrants, patents of confirmation have as constantly issued, as those requisites have been complied with. But many persons, greedy of acquiring great quantities of land, unjustly laying hold of the indulgence allowed them of surveying the waste land before any thing paid, frequently took out warrants of resurvey, included [**2]  large tracts, and paid nothing to the proprietor, though they held his land, and kept off those who were desirous of becoming honest purchasers, by a faithful compliance with the well known terms. To obviate, therefore, so unjust a practice, Charles, late lord proprietary, deceased, caused his proclamation a to be published throughout this province, (which he likewise caused to be recorded in his land-office,) to the effect, that any certificate or surveys of land, which had been so surveyed and not been compounded for, should be liable for, and granted to the first discoverer. And in consequence of these proclamations, it has become the every day's practice of the land-office, to grant warrants, commonly called the proclamation warrants, to the first discoverers of lands surveyed and not compounded for; and to take away all possible pretence of hardships, the said Charles, late Lord Baltimore, in his wisdom and justice, by his instructions b to his judges in land affairs, caused a proviso or condition to be inserted in all warrants since issued, to the effect that all requisites should be complied with and the grant sued out within two years from the date of the warrant. The said [**3]  Attorney-General, by and at the relation of Josias Bowen, of Baltimore county, planter, further informeth your excellency, that one Edward Norwood, of Baltimore county, (now deceased,) planter, being in his life-time seised, or pretending to be seised in fee, of and in one hundred acres of land, lying in Baltimore county aforesaid, part of a tract of 150 acres, called Thomas's Range, originally, on the 1st day of June, 1685, granted unto a certain John Thomas, applied to the land-office on or about the 5th of November, 1647, for a warrant of resurvey thereon, and accordingly obtained such warrant, dated the day and year last mentioned, in the common form, to resurvey the said 100 acres, correct any errors that might be in the original survey thereof, and add all vacant land thereto contiguous. By virtue of, and in pursuance of, which warrant, afterwards, to wit, on the 5th of May, 1748, Thomas White, then deputy-surveyor of Baltimore county, resurveyed the said Edward Norwood's part of the said tract of land, found the same to contain 112 acres within its ancient lines and boundaries, and by the directions of the said Norwood, within the out lines of the said resurvey, included the [**4]  said 112 acres, as also 371 acres of land, alleged and showed by the said Norwood to the said deputy-surveyor as vacant land, and reduced the same into one entire tract by the name of Norwood's Range, and delivered a plat and certificate of the said resurvey to the said Norwood, who returned the same to John Ross, Esq. the then lord proprietary's examiner-general, which certificate and plat were, on the 30th of April, 1749, examined and passed by the said then examiner-general, and by him returned into the land-office.

a See Kilty's Landholder's Assistant, c. 10. p. 186.

b Id. p. 190, 191.

That after the return of the said certificate to the land-office, the said Norwood got that certificate into his hands and possession, under pretence of carrying the same to the then lord proprietary's agent to compound thereon, and kept the same in his hands until the 29th of October, 1760; before which time, that is to say, some time in the year 1758, the said relator, Josias Bowen, applied to the land-office for a proclamation warrant on the said certificate, to affect the vacancy added on the said resurvey. But the said certificate having been taken and kept out of the land-office [**5]  by the said Norwood, in manner aforesaid, no proclamation warrant could then issue thereon. Wherefore the said Bowen applied for, and obtained, a copy or duplicate of the said certificate and plat from the surveyor's books, regularly authenticated, returned the same into his lordship's land-office, and on the 5th of July, 1758, obtained a warrant under the said proclamation, as well to affect the said 371 acres returned by the said Norwood as vacancy, as to add thereto any vacant land contiguous; and to prevent any surprise to his lordship's land-office by the said Norwood, his lordship's judge, in land affairs, then ordered and caused to be entered in the margin of the record of the said Norwood's warrant of resurvey, in the words following, to wit: "no patent to issue on the certificate returned by virtue of this warrant, by order of the Judges; the warrant on the proclamation having issued to Josias Bowen, the 5th of July, 1758;" and the then register of the land-office also then endorsed and wrote the following words on the back of the said duplicate or copy of the said certificate, to wit: "5th July, 1758, warrant on the proclamation to Josias Bowen of Baltimore county, to affect [**6]  the within land. Test. Th. Jenings, Clerk." Which warrant of the said Bowen not being executed within the six months limited for the execution thereof, the same, according to the practice of the land-office, was, on the 5th of January, 1759, renewed and continued for six months longer, with liberty of including and resurveying one other tract, called Josias's Outlet, lying contiguous to the said land added as vacancy by the said Norwood, originally on the 10th of November, 1695, granted to a certain Josias Bowen for 129 acres under new rent, and to add any vacant land thereto contiguous. Which warrant of the said Bowen was again renewed, not being before executed, on the 28th of June, 1759, and also on the 28th of December, 1759, for six months from each of those times respectively. By virtue of which warrant, afterwards, to wit, on the 30th of May, 1760, the then deputy-surveyor resurveyed the said tract of land called Josias's Outlet, according to its ancient metes and boundaries, and found the same contained 150 acres, 21 acres whereof lay in elder surveys; and also the said land added as vacancy by the said Norwood, and what other vacant land was contiguous thereto, and reduced [**7]  the whole of the said tract called Josias's Outlet, which lies clear of elder surveys, that part of the said 371 acres added as aforesaid by the said Norwood, which lay clear of elder surveys, and also what other vacancy lay contiguous thereto, into one entire tract under certain lines, &c. by the name of Josias's Outlet, containing in the whole, 538 acres, 409 acres whereof was vacancy added, and a certificate of that resurvey returned into his lordship's land-office, dated the said 30th of May, 1760, and afterwards, to wit, on the 3d of July, 1760, the said Bowen paid and satisfied to Edward Lloyd, Esq. his then lordship's agent and receiver-general, 20l. 9s. sterling for the said 538 acres of vacancy, and 7l. 10s. sterling for the improvements mentioned in the said certificate to be on the vacancy; a receipt for which composition money, and an order for patent to issue with the approbation of your excellency's predecessor in office, the said agent endorsed on the said certificate, which certificate and endorsement, together with one other endorsement of the examiner-general's, having examined and passed the same certificate was returned unto his lordship's land-office for patent [**8]  to issue thereon to the said Josias Bowen, where that certificate has ever since remained.

That after the said Bowen had returned his said certificate, and complied with all previous requisites on his part, by causing the same to be examined, and paying the caution money, and for the improvements as aforesaid, the said Norwood subtly, fraudulently, craftily, and in deceit of the said agent, on the 29th of October, 1760, went with his original certificate, which had been taken out of the office and kept by him as aforesaid, to the said then lordship's agent, and though he (the same Norwood) well knew a proclamation warrant had been granted, and certificate thereon returned, and compounded for as aforesaid, and that there was such marginal entry in the record of his warrant and endorsement on the copy or duplicate of his certificate, not disclosing or informing the said agent of any of those circumstances, offered to compound on his said original certificate, and did pay and procure the said agent to accept of 12s. 6d. sterling for the surplus, 18l. 11s. 6d. sterling for the vacancy added, 9l. 2s. for twelve years and a quarter of a year's rent, to Michaelmas, 1760, which he caused [**9]  to be endorsed by his said lordship's agent on the same certificate, together with an order for patent to issue thereon with the then governor's approbation, and then delivered that certificate with the endorsement aforesaid, into the hands of one Lawrence Mauyard, now dead, who then was employed in the land-office as a writer or servant to William Stuart, then register, (now deceased,) and combining and confederating himself to and with the said Lawrence Mauyard to write and draw a patent of confirmation to him the said Norwood, in fee, and for the said tract of land called Norwood's Range, upon the said certificate thereof, though the said Lawrence well knew of every fact herein before set forth, and particularly of the marginal entry aforesaid, to which he added in his own hand-writing "patent, 29th October, 1760," and after the said patent of confirmation was so framed, devised and wrote, the said Lawrence, at the instigation and request of the said Norwood, carried the same with the certificate on which it was grounded, to the then governor, and falsely, fraudulently and deceitfully, procured him to sign the same, and affix thereto the great seal."

The information also avers,  [**10]  that the agent when he received the money from Norwood, did not know of any proclamation warrant being granted on the certificate; and that the judges nor register did not know that the patent had been made out, but that the same was done fraudulently, &c. by the said Mauyard, without any orders from any of his superiors. That the then governor at the time, &c. was uninformed of any of the facts, &c.

"That the said Bowen not knowing that the said Norwood had obtained the patent aforesaid, at divers and sundry times, applied to the said register of the land-office for a patent on his said certificate, which was as often promised, till on or about the 12th of March, 1762, the said Norwood having got possession of great part of the land included within the lines of the resurvey aforesaid, called Josias's Outlet, the said Bowen again applying to the said register for his patent, was answered that it could not be made out till the back rents were paid up, and that as soon as that was done it should be immediately made out, and according to the course of the office, would bear date on the day of such payment; upon which, notwithstanding the said Bowen had done every thing in his power [**11]  towards suing out patent, and it was owing to the negligence of his then lordship's officers solely, that the same had not been made out long before, he the said Bowen, on the 12th of March, 1762, paid to his said then lordship's agent, 2l. 10s. 3d. sterling for two years and four months' rent to Michaelmas then next, and caused a receipt thereof, together with the said agent's order for patent to issue with the then governor's approbation, to be endorsed thereon. And in confidence that a patent would be made out immediately, and dated according to the course of the office, the said Bowen, in the name of his lessee, prosecuted an ejectment against the said Norwood in the Provincial Court, for the recovery of the possession of the said tract of land called Josias's Outlet, to which the said Norwood appeared and took defence according to his pretensions as they should appear to be laid down on the return of a warrant of resurvey issued, and the pretensions of both parties were laid down by the directions respectively, as the same appears on the plat, and by which it doth appear that great part of the said tract of land called Josias's Outlet, is included and contained within Norwood's [**12]  Range.

"That the said Norwood having, on the 9th of March, 1761, entered a caveat against the said Bowen's obtaining patent on his said certificate, never took any step to have his caveat heard before the then lord proprietary's judges in land affairs, till some time in the month of February or March, 1763, (though by an express instruction, caveats in that office can continue in force for six months and no longer,) and then the said Norwood caused the said Bowen to be summoned to appear before the said then judges, and answer the said caveat, both of whom accordingly appeared, and then the said Norwood pulled the patent aforesaid, by him falsely, &c. obtained as aforesaid, out of his pocket, asserting at the same time the land was already patented to him, and the patent recorded, and that the then Lord Baltimore had no right to grant his land to Bowen or any body else, which was the first notice the said Bowen ever had of the said Norwood's obtaining the said patent.

"That the said proclamation, the said warrant of resurvey to the said Norwood, his original certificate and endorsements thereon, and the patent aforesaid to him, the marginal entries aforesaid, the said proclamation [**13]  warrant and renewment thereon, are of record, and now remaining recorded in the land-office; that the said copy or duplicate of the said Norwood's certificate, and the said Bowen's certificate and endorsements, as well as the said original certificate of the said Norwood, now remain and are original papers, in the lord proprietary's land-office, and there kept, and that the patent aforesaid now is in the possession of Nicholas Norwood, one of the defendants hereinafter named, to all and every of which said records, and papers, and patents, the said Attorney-General prays leave to refer; and that they may be taken as part of this information.

"The said Attorney-General, by and at the relation aforesaid, also informeth your excellency, that by the rules and practice of the land-office, patents are not to issue for lands known to be patented before, and therefore the said Bowen could not obtain any patent on his said certificate; wherefore he the same Bowen, in the Provincial Court, in April term, 1776, was obliged to suffer a non pros in his suit in ejectment, and the said Norwood, by judgment of that Court, recovered his costs by him expended therein, and soon afterwards caused [**14]  an execution to issue thereon, against the body of the said Bowen, who superseded the same according to the act of assembly in such case made and provided; to the record of which same cause in ejectment, &c. &c. reference being thereto had, and to which the said Attorney-General prays leave to refer."

The information goes on to state, that the said E. Norwood, on the 4th of August, 1769, conveyed the said land called Norwood's Range, to his eldest son, Nicholas Norwood, in consideration of natural love and affection. That the said E. Norwood, by his last will and testament, constituted his son Edward Norwood, one other of the defendants, his sole executor thereof. That Edward Norwood the executor, after his father's death, to wit, on the 27th of August, 1772, issued a scire facias against the said Bowen, to revive the judgment, &c. That fiat was entered at September term last, and the said Norwood now threatens to cause an execution to issue, &c. That N. Norwood has entered into the said land, and committed great waste, &c. and still continues, &c.

"All of which actings and doings of the same E. Norwood the testator, were fraudulent in deceit of the then lord proprietary,  [**15]  and of his officers, entrusted by him for the management of his land affairs within this province, and greatly in fraud, and to the prejudice, of the said Bowen; and which actings and doings of the same N. Norwood are against the public good of this province, and contrary to equity and good conscience. In tender consideration whereof, and forasmuch as the said lord proprietary and the said Bowen are only and properly relievable in this honourable Court, where frauds and deceits of this kind are properly cognisable, the previous steps taken to procure and get grants are examinable, and grants and patents obtained by fraud, surprise, trick or deceit, are usually vacated, and where wastes and spoils are restrained and injunctions granted to stay and surcease proceedings at law; to the end, therefore, that the said N. Norwood and E. Norwood, and their associates, when discovered, may, on their several and respective corporal oaths, true, distinct and perfect answer make and give, to all and singular the premises, and that as fully as if the same was herein again interrogated, and that the same N. Norwood may be compelled to bring into this honourable Court, the original patent the aforesaid [**16]  E. Norwood (the testator) granted as aforesaid, and that the same be cancelled and vacated in this honourable Court, and the enrolment thereof to be made void, that patent of confirmation may issue to the said Bowen, on his said certificate for Josias's Outlet; that the said Norwood, the executor, be compelled to enter satisfaction of the judgment aforesaid, and also pay to the said Bowen, his costs in the suit at law aforesaid, and also that the said Nicholas may be compelled to deliver up possession of such part of Josias's Outlet as he claims under Norwood's Range, to the said Bowen; that the same Nicholas may be restrained from the commission of other wastes and spoils, in and upon the premises, and that the said E. Norwood the executor, be enjoined not to proceed further at law, without your excellency's order and permission for so doing, and that such further and other decree may be given in the premises, as the nature of this case doth or may require." Prayer for subpoena, &c.

Upon which information, a subpoena and an injunction issued as prayed, and the case was continued until February, 1782, when Nicholas Norwood, one of the defendants, by Richard Ridgely, his attorney,  [**17]  filed his separate answer, alleging ignorance of most of the transactions; admits his father was seised of part of Thomas's Range, and believes he applied for a warrant of resurvey; that contiguous vacancy was added, and the whole called Norwood's Range. The certificate might have been made out at the time alleged, but he does not know in what manner the certificate was returned to the examiner-general, or how long it was retained by his father; but he "believes that it was usual and customary at that time in the land-office, for certificates to lay for several years, and upon the patentee's paying the caution money and complying with other requisites, to have his title confirmed, without any regard to the length of time intervening between issuing the warrant and the grant of confirmation." That he is a stranger to the several entries in the land-office, if any there be, relative to the certificate of Norwood's Range, or the duplicate thereof; and if the same be as set forth, they can in no sort affect his title to the land, who claims the same under and in virtue of a deed from his father, whereby all right, &c. was bona fide conveyed to him by his father. That he knows nothing,  [**18]  of his own knowledge, of any proclamation warrant, obtained by the said Bowen, &c. but hath been informed, and believes it to be true, that a certain N. R. Gay, at that time deputy-surveyor of Baltimore county, and who by the rules of the land-office was prohibited from taking up land, or interfering therein, persuaded the said Bowen to make such application for his use, and supplied him with money and the necessary information for the purpose, thereby making use of the said Bowen as an instrument, to obtain the said land for his own use, contrary to the rules of the land-office, and greatly to the prejudice and grievance of the tenants of the then lord proprietary, and repugnant to his office and trust; that this suit is prosecuted at the expense and for the benefit of the devisees of the said N. R. Gay. That he knows not of any fraud or contrivance between his father and any of the clerks of the land-office, neither does he believe any such ever took place, as he has frequently heard his father say, that the said land was obtained honestly and fairly, by voluntary grant from the then lord proprietary's land-office, without any connivance with the said Mauyard, or any other of the [**19]  officers or clerks of the said land-office, neither does he believe that the agent for land affairs was ignorant of the manner of the said E. Norwood's obtaining a patent, as the records were always open for the inspection of all persons, and the necessary information might have been obtained; admits the ejectment was prosecuted by the said Bowen, &c. also the death of his father, and by his will constituting E. Norwood executor, &c. also that he entered upon the land and occupied the same, and now occupies the same under the deed from his father, and humbly conceives his title thereto is consonant to both law and equity, &c. and he does not apprehend, admitting the said Bowen to have obtained a proclamation warrant as aforesaid, that by any relation or equitable construction, the same can be made to extend to affect his title. He denies all manner of unlawful combination, &c.  

DISPOSITION:
Case dismissed.  

COUNSEL:
Martin (Attorney-General) and Duvall, for the appellant.

J. T. Chase, for the appellee.  

OPINION:

 [*213]  The cause being submitted, &c. the Chancellor (Rogers) passed the following decree, viz.
"And this cause thus standing ready in Court for hearing, a day was by this Court [**20]  appointed, by consent of parties, for the hearing thereof, on which day, being the 7th day of July, 1785, the said cause coming on accordingly to be heard, and debated in this Court in the presence of counsel, learned on both sides; and the substance of the bill and answer and several exhibits aforesaid, appearing as heretofore recited and set forth; Whereupon, and upon debate of the matter, and hearing what could be alleged on both sides, this Court doth think fit, and so order and decree, and accordingly it is, this 7th day of July, 1785, aforesaid, by the honourable the Court of Chancery of Maryland, and the power and authority of the same, ordered, adjudged and decreed, that the original patent aforesaid, granted to the aforesaid Edward Norwood deceased, on the 29th day of October, 1760, for the said tract of land called Norwood's Range, be, and the said original patent hereby is, vacated, revoked, cancelled and annulled, and void, vacated and invalid be had and held; and that the enrolment thereof be, and hereby is, cancelled, made void and annulled, and that the said Edward Norwood, the executor aforesaid, and all others be, and hereby [**21]  are, perpetually enjoined from proceeding, in any manner, to execute the judgment for costs in the bill aforesaid mentioned, and that the said Nicholas Norwood deliver up to 

 [*214]  the said Josias Bowen, such part of the said tract of land called Josias's Outlet, as he the said Nicholas possesses or claims, under or in virtue of the patent aforesaid, of the said tract of land called Norwood's Range, and that a patent do and shall issue and be granted to the said Josias Bowen, upon the certificate aforesaid, of the said tract of land called Josias's Outlet.
From which decree, Edward Norwood, as the heir of the said Nicholas Norwood, who had died after the decree, appealed to the Court of Appeals, and gave bond to prosecute the said appeal, dated the 3d of October, 1786.
At this term, (October term, 1787,) the case standing under rule errors, was dismissed.  

6 of 20 DOCUMENTS 

Thomas Worthington against Charles Filthy.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 91; 1791 Md. LEXIS 4 

October, 1791, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from Baltimore county court. The record states it to be an action against the defendant, the appellee, for rescuing a certain Joshua Brown out of the custody of a person specially appointed a deputy sheriff, who had, by virtue of a writ of capias ad respondendum, issued out of the county court of Baltimore, and deputation from the sheriff of Baltimore county, arrested the said Brown in an action on the case.

At the trial of the cause the defendant prayed the direction of the court to the jury, that to maintain this action on the part of the plaintiff, it must appear in evidence to the jury, that the sheriff has duly returned to court the writ against the said Joshua Brown, at the suit of the said Thomas Worthington, and also the rescue of the said Brown. The court gave the direction as prayed for. The plaintiff excepted.  

DISPOSITION:
Reversed.  

COUNSEL:
Hollingsworth, for the appellant.

Smith, for the appellee.  

OPINION:

 [*91]  The general court reversed the judgment of the county court.  

7 of 20 DOCUMENTS 

State of Maryland against Samuel Johnston, Esq.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 160; 1786 Md. LEXIS 2 

May, 1786, Decided 

PRIOR HISTORY:
 [**1]   THIS was a certiorari to the County Court of Baltimore, to remove the proceedings on a motion, that Samuel Johnston, Esquire, be admitted an attorney of the said Court.

It appears on the record, "that Mr. Johnston having applied to the Court of Baltimore county, in August, 1784, to be admitted as an attorney of that Court, Luther Martin, Esq. the Attorney-General, objected to his admission, and stated to the Court, that the said Johnston, being an inhabitant of the province of Pennsylvania, and residing therein, when the revolution began, and until some time in the year 1778, holding the office of prothonotary, and clerk of the peace in York county, in that province, and practising the law in that province, did not take the oaths of allegiance to the state of Pennsylvania, in consequence whereof, the said offices were disposed of to another, and he gave up his practice as a lawyer, and retired, in the said year, being then upwards of fifty-two years of age, to this state, where he remained peaceable and inactive, without taking the oaths to this state, with his relations, until peace was established, which the said Johnston acknowledged to be true; and alleged, that during the [**2]  dispute his conscience would not permit him to take the oaths of allegiance to the new government, not thinking himself absolved from his oath of allegiance to the king of Great Britain, until independence was acknowledged, although he, at the same time, alleged, that he sincerely wished well to the liberties of America, and that two of his sons-in-law were colonels of militia, in the American service, one of them in the flying camp, and two of his sons were privates, one in the militia and the other in the regular service, one of whom was taken prisoner at Fort Washington; and that, now the independence of America was established, and the matter entirely over, he was at this time perfectly attached to the present government of Maryland, as now established. And Mr. fames Calhoun, being examined by the Court, said he had often been in company with Mr. Johnston, and was well acquainted with him, and that he did not think Mr. Johnston an enemy to the liberties of America, but understood that he had conscientious scruples against taking the oaths to the new government.

"The Attorney-General made no objection for want of integrity or abilities in the said Johnston, but admitted him [**3]  to be unexceptionable in those points, and that his political character and conduct only, was impeachable.

"And the Court clearly seeing and understanding the motion of the said Samuel Johnston, and the objection so as aforesaid stated against him, do admit the said Samuel Johnston as an attorney of Baltimore County Court, upon his taking the oaths by the law prescribed; and thereupon the said Samuel Johnston took and subscribed the several oaths by law directed. From which opinion and admission of the Court, the Attorney-General prayed an appeal to the General Court for the Western Shore, which appeal was granted and the proceedings ordered to be transmitted accordingly."

The appeal was transmitted to the General Court, where the following observations against the appeal, were made on the part of Mr. Johnston.

The first point to be determined by the Court, is, whether an appeal lies, where the Court admits an attorney and he is accordingly sworn.

Attorneys are very ancient ministerial officers of the Courts of common law, to undertake the charge of other men's business in their absence, and were either admitted by the Courts, on application of the party, or the [**4]  Courts could be compelled thereto by writ or letters patent from the king. And there is a great diversity of writs in the table of the register, by which the king commands the Judges to admit attorneys. But by the statute of Merton, c. 20. the 20th of Hen. III. Westm. 2. c. 10. the 13th of Edw. I. and the 7th of Rich. II. c. 14. all persons were enabled to appoint attorneys to answer for them.

4 Hen. IV. c. 18. The justices were required to examine the attorneys, and by their direction admit such as they approve, and reject the insufficient; and on the death of any that are admitted, to appoint others that are virtuous and learned, as well as to strike out of the roll such as were notoriously faulty.

3 James I. c. 7. None shall be admitted attorneys, but such as are well practised in soliciting of causes, and skilful, and of honest disposition. So that knowledge and probity were then the necessary qualifications.

In 1715, by act of assembly, c. 48. s. 12. the justices of each Court have a power to admit attorneys to practise in the same, and also suspend them in case of misbehavior.

Thus has every Court been empowered to judge of the knowledge and probity of the [**5]  attorneys to be admitted, as it is fit they should, of the admission of their own officers; and where an admission has once been obtained, no Superior Court has ever exercised the power of suspending. No law has given it; no Courts have exercised it.

The Court of King's Bench in England, and the General Court here, have a superintending power in criminal matters generally, but in some special cases over the inferior jurisdictions for particular purposes; that is, to see that they do not exceed their jurisdictions, agreeably to the laws of the land, to rectify errors in the proceedings, to punish such as act corruptly, unjustly and oppressively, and to grant mandamus where persons have been illegally put or kept out of office, as well as to prohibit the farther proceedings of such as have no jurisdiction. And where appeals are given by particular laws, and for particular purposes, the superior Court, to whom the appeal is made, hath always confined itself within the powers given by those laws to redress the party aggrieved.

In 1783, April sessions, an act of assembly was made (chap. 17.) concerning the admission and qualification of solicitors and attorneys, which vested a [**6]  discretionary power in the justices of the respective Courts, after examination by such ways and means, "as to them respectively shall seem proper, whether such person is suitable and fit, with respect to his knowledge, abilities and integrity, and whether, on consideration of all circumstances, and the whole conduct and behavior of such a person, he is well affected to the present government of this state, and the principles of liberty and independence, as established by the late revolution; and if satisfied that such person is duly qualified, to administer the oaths directed by law, and cause him to be admitted."

Thus is a power vested in the respective Courts, on inquiry and consideration of all circumstances, and the whole conduct of the person, to admit or refuse admission, as attorneys of the said Courts, and had the law gone no further, the determination of the Courts must, it seems, have been final. But the laws are ever tender of the rights of individuals, and no persons should be excluded from admission, or suspended from practice, who were legally entitled to practise. For such persons who apprehend themselves aggrieved by the judgment of the Court, (for no other persons [**7]  can apprehend themselves aggrieved, but such as are excluded or suspended,) a clause is inserted in the said act, that such shall have a right to appeal to the superior Courts, according to their respective jurisdictions, as settled by law in other cases: whose only power is, if they are of opinion that such person has been illegally denied admission, in the one case; or suspended or struck out against law in the others, by mandamus, to order such attorney or solicitor to be admitted or reinstated, as the case may be.

Here it is remarkable that the Courts above are only enabled to give a remedy, which applies to a person denied admission, and not to the party opposing it. No power is any where vested, nor have any superior Courts ever attempted to direct the inferior Courts to strike off, or even suspend, any of their attorneys once admitted, from practice; though they have issued mandamus to restore such as were suspended. This was a power first exercised by the crown of England, in very ancient times, as appears by the register, and afterwards by the King's Bench, where attorneys were illegally refused admission or suspended in inferior Courts.

This appeal lies only for [**8]  the party grieved. I suppose the Attorney-General will not allow himself to be the party grieved, and surely the State cannot come within that idea. There is a uniform distinction kept up, in the law books, between the king and the party, the crown and the party; with the same reason should the distinction take place between the government and the party. In no instance have statutes, acts of assembly, or Courts of Law, ever mentioned the crown or the government by the name of the party, nor have they been ever understood by that expression, and should Mr. Attorney contend, that he, as a private person, thought himself affected in point of interest, by Mr. Johnson's admission, yet the act of assembly would not warrant his appeal; because there is no power given for any remedy in such case.

Upon the whole, the several Courts have, from great antiquity, exercised the power of determining who were or were not qualified to be attorneys of their respective Courts, and admit or reject them accordingly. The several statutes and acts of assembly confirm this power, and the act of 1783 gives them a discretionary power, to determine the knowledge, abilities and integrity, as well as the [**9]  political principles of the person to be admitted, and to admit accordingly, such as they think qualified. No power appears vested in the superior Court, to countervail such admission; because the remedy on the appeal is given to the other side of the question.

And as to the general superintending power of the superior Court, it is only such as is, or can be, exercised in the instances above mentioned, or similar to them, but never in this case; was it otherwise, the giving an appeal by this last law was needless and nugatory, for certainly, then it would have extended to both sides of the question, which under the act it does not. The justices of Baltimore County Court have, by their admission of Mr. Johnston, given their determination on the whole circumstances, and after a full hearing, that he is a person qualified to be admitted, agreeable to the act of assembly. Mr. Attorney has thought proper to enter an appeal in this case, not warranted by law. By the same practice the determinations of the General Court, in the admission of attorneys, may be appealed from, and every Court be deprived of the power so clearly vested in them by law. Wherefore, on the part of Mr. Johnston,  [**10]  it is prayed, that the appeal be dismissed, as not lying on the part of the appellant.  

OPINION:

 [*165]  At October term, 1784, the appeal was dismissed; it being determined not to be a case in which an appeal would lie.
Afterwards, at November term, 1784, the Attorney-General having obtained a writ of certiorari for the removal of the proceedings to the General Court, produced the said writ to the County Court, and which was allowed, 

 [*166]  and the proceedings ordered to be transmitted. The record of proceedings was accordingly transmitted to the General Court, on the 9th of May, 1785, and was continued till May term, 1786.
Observations on the certiorari on the part of Mr. Johnston.
Two questions arise on the present occasion. 1st. Whether a certiorari lies in this case? 2d. If it does, whether the justices have acted illegally in the admission of Mr. Johnston to practise as an attorney in the County Court. The determination of either of these points in favour of Mr. J. must make an end of this affair.
1. It must be acknowledged that this is the first certiorari ever known to be brought to control the Justices of inferior Courts [**11]  in the admission of their own officers, and therefore ought not to be received on the present occasion. It is a question in which every County Court of this state and every inferior jurisdiction is deeply concerned. The discretionary powers with which they have been entrusted, will be subject upon every occasion to be obstructed by this new mode of proceeding. I hope it will, upon this occasion, meet with that discouragement which it deserves.
Superior Courts have at all times been very cautious of extending their jurisdiction or exercising powers never before practised even in cases where the right seems to be acknowledged. Littleton, in his chapter on knight service, says, no action can be brought on the statute of Merton for disparaging an heir, because none ever had been brought. Brooke says, that a writ of error will run to the five ports; but in Dyer, 376. because none ever had gone, it was determined that none ever should go. In Year Book, 39 Hen. VI. a royal protection to the king's proctor at Rome was disallowed, because none was ever granted before. See 1 Bl. Rep. in the case of Tonson & Collins, 309.  2 Strange 881. [**12]  the Court refused 

 [*167]  a mandamus to the Justices to grant a license, because no such had ever issued in such case.
At common law, by the statute of 4 Hen. I. c. 18. Stat 3 James I. c. 7. and by an act of assembly of the year 1715, c. 48. s. 12. powers are given to the Justices to admit such as they in their discretion shall think of sufficient knowledge and probity; and that none else should be admitted by the above statute of fames.
Thus have the several Courts of Law been empowered to judge of the knowledge and probity of the persons applying for admission in their Courts, as it is fit they should, of their own officers; and where an admission has once been obtained, no superior Court has ever exercised the power, by certiorari or otherwise, of inquiring into the propriety of the admission. Was not the want of knowledge and probity sufficient to exclude from admission by the statute? Yet as the Justices were vested with the power of determining who were properly qualified, no other power has ever interfered.
This Court has a superintending power over criminal matters generally, and in some special cases, over inferior jurisdictions for particular [**13]  purposes; that is, to see that they do not exceed their jurisdiction; to rectify errors in the proceedings; to punish such as act corruptly, unjustly and oppressively; to grant mandamus where persons have been illegally put, or kept out of office; as well as to prohibit the further proceedings of such as have no jurisdiction. Should the County Courts exceed their bounds, a certiorari may be brought, not to try the merits of the question, but to see if they have exceeded their jurisdiction. See 2 Burr 1042. Rex v. Morley, on a conviction under the conventicle act, 22 Car. II. s. 1.
In April sessions, 1783, c. 17. an act was made concerning the qualification and admission of solicitors and attorneys, which vested a discretionary power in the 

 [*168]  Justices of the respective Courts after examination, "by such ways and means as to them respectively shall seem proper, whether such person is suitable and fit with respect to his knowledge, abilities and integrity, and whether, on consideration of all circumstances, and the whole conduct and behavior of such a person, he is well affected to the present government of this state, and [**14]  the principles of liberty and independence as established by the revolution: and if satisfied that such person is duly qualified, to administer the oaths directed by law, and cause him to be admitted."
Thus is a power vested in the respective Courts, on inquiry and consideration of all circumstances, and the whole conduct of the person, to admit him to practise as an attorney; which law, by going no further in case of an admission, seems to be final, (the appeal being only given in case of a refusal.) Had the legislature intended to have had a further inquiry after admission, the law would have given the same. No such power is any where given, none such have ever been exercised by any superior Court whatever.
The power given by the law is discretionary; which, according to Lord Mansfield, can mean nothing else but the exercising their judgments upon the occasion that calls for it. Nor are they obliged to give any reasons for their determination. They have a right to judge for themselves, nor can this Court exercise any power or claim to review the reasons upon which the Court below forms its judgment in such cases, or overrule the discretion entrusted to them. If they [**15]  act corruptly, partially or maliciously, they may be undirected.  1 Burr 556. 1 Salk. 45.  2 Strange 881. 1 Burr 570. 246.
Second point. Should the Court, notwithstanding, be of opinion, that a certiorari will lie in the present case, the next inquiry is, have the Justices exceeded their jurisdiction, or acted illegally? The first will hardly 

 [*169]  be disputed, and therefore the latter comes into consideration. The knowledge and integrity of Mr. Johnston are acknowledged on the face of the record; these, as well as his political principles, the Court have determined; so that, unless he is absolutely excluded by some law existing at the time, the justices have done no more than a just regard to the rights of mankind required.
It is a rule in law, that penal statutes should be construed strictly, and surely such as deprive any person of the means of getting a livelihood for themselves and family by their honest industry, in the only way they know, must be penal indeed.
The act for the better security of government, October sessions, 1777, c. 20. required all free male persons within this state above eighteen [**16]  years of age, to take the oath of fidelity and support to the state, by the first of March following, or be disabled to practise the law, &c. Mr. Johnston not then being an inhabitant, neither falls within the letter or meaning of this law.
In May sessions, 1781, an act of assembly was made, c. 20. to prevent disaffected emigrants from settling in this state, &c. whereby it was enacted, that no citizen or inhabitant of any of the United States, who had not taken the oath of allegiance to the state in which he resided, should ever hereafter come to this state; and in case that he should, he may be apprehended by warrant from any justice of the peace, lieutenant, or militia field officer of any county, and carried before the governor and council, who may order such person to depart within a limited time, &c. or commit him to gaol, &c.
And that every person above eighteen years of age, who hath already come into, and remains in this state from any of the United States, shall, on or before the first day of September next, appear before some justice of 

 [*170]  the peace for the county in which he may reside, and take and subscribe the oath or affirmation [**17]  of fidelity and support to this state, as prescribed by the act to punish certain crimes and misdemeanors, and to prevent the growth of Toryism, and if any person shall neglect so to do, or shall, on the said oath or affirmation being tendered to him by any justice of the peace for such county, (which oath or affirmation any justice of the peace may at any time tender,) refuse to take and subscribe the said oath or affirmation, such person so neglecting or refusing shall be considered as a subject of the state from which he came, and may be dealt with as if he had come into this state after the passing of this act.
It is remarkable, that this law, when in force, left it discretionary in the justice, county lieutenant or field officer, to have the person apprehended or not; and also for the governor and council to order the person out of the state or not, according as the person appeared to be inoffensive or otherwise. But this law also having expired with the war, was not in force when Mr. Johnston was admitted; but is at the same time the strongest proof of Mr. Johnston's unblemished conduct when he was so well known to the persons who were empowered to execute [**18]  the same. He remained an inhabitant of this state unmolested. He owed it a local allegiance, which he strictly observed, and since the expiration of that law is become a subject of it, as he was near three years before the same was enacted.
After peace was concluded, the law now in force was made, whereby all former disqualifications seem impliedly to be removed, but such as are contained in this law. The justices are vested with a power to determine, on inquiry and consideration of all circumstances, and the whole conduct of the person, to admit. Their power is discretionary so far, and no appeal from their determination but in case of refusal, &c. because there is 

 [*171]  no power given by the law to examine the merits or qualifications of the person elsewhere, nor to inquire into the reasons of the admission. The justices, on the return of the certiorari, have not assigned any reasons, nor are they obliged by law to do so.
Upon the whole, the several Courts have, time out of mind, exercised the power of determining who were qualified to be attorneys of their respective Courts. The several statutes and acts of assembly confirm the same. The act of 1783, particularly,  [**19]  gives them a discretionary power to determine of the knowledge, abilities and integrity, as well as the political principles of the person to be admitted, and that not on one or two facts, but on the consideration of all circumstances, and the whole conduct and behavior of the person. And as no power appears by the law to be vested in this Court to countervail such admission, as no power has ever been exercised, or no certiorari has ever been issued in such cases, and as no law now exists to disqualify Mr. Johnston from practising, and the justices, upon full information, have determined that he is qualified to be admitted agreeably to the act of assembly, and have admitted him accordingly, I hope the Court will, in this case, discourage such an unwarrantable proceeding, by quashing the certiorari issued, and put an end to an affair, which seems to have taken its rise from a busy intermeddling spirit, and carried on, not with a regard to the public good, nor called thereto by the duty of public office.
At this term the case was STRUCK OFF.  

8 of 20 DOCUMENTS 

Nicholas Tschudy against State of Maryland.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 1; 1790 Md. LEXIS 17 

October, 1790, Decided 

PRIOR HISTORY:
 [**1]   THIS was a removal from Baltimore county court, by a writ of certiorari, issued on the part of the state. It was an action of assumpsit for eight months rent of a house, rented by the quarter-master, and occupied by the officers of the French artillery. The process was a summons directed to the sheriff of Baltimore county, commanding him to summons Luther Martin, Esq. the attorney-general of the state of Maryland, to be and appear in his proper person, before, &c. on, &c. then and there to defend a claim on behalf of the state of Maryland, at the suit of a certain Nicholas Tschudy, for the sum of 66l. 13s. 4d. current money, agreeably to an act of assembly, passed in the year 1786, (c. 53.) At May term, 1790, verdict was given for the state. The plaintiff moved for a new trial and filed the following reasons, viz.

1. That this is an action on the case for the use and occupation of a house, and the defendant cannot say that the plaintiff has no title in the said premises.

2. That on the above action the title of the plaintiff cannot be controverted, and the defendant is estopped to say that the plaintiff has no title in the premises for the time he enjoyed them.

3. That [**2]  the court having directed the jury "that by the contract from the plaintiff to Joseph Lemaim, it appeared that the title of the premises was not in the plaintiff, but in the said Lemaim during the time that the said premises was used and occupied by the defendant; and, as such, that the plaintiff could not recover on the present action," was a misdirection of the court to the jury, and for the reasons aforesaid, the plaintiff is entitled to a new trial.  

DISPOSITION:
Judgment on the verdict.  

COUNSEL:
David M'Mechen, attorney for the plaintiff.  

OPINION:

 [*2]  The Court overruled the reasons, and gave judgment on the verdict for the state.  

9 of 20 DOCUMENTS 

Mulatto Joan and William M'Cubbin against Joshua Shield's Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 7; 1790 Md. LEXIS 21 

October, 1790, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment for a tract of land called Shield's Purchase, removed from Baltimore county court by a writ of error. By the record it appears that, at August, 1786, a verdict was found for the plaintiff, and judgment for possession. But because it was unknown to the court what damages the plaintiff had sustained, a writ of inquiry of damages was ordered, which was executed and returned March, 1787, awarding damages to the plaintiff 125l. current money.

Motion was made to the court to set aside the inquisition, for two reasons; 1. Because a writ of inquiry of damages does not lie in this case, agreeably to the laws of the land; 2. Because the jury have found excessive damages.

The Court overruled the reasons, and entered judgment on the inquisition for the damages therein, and the costs of suit.  

DISPOSITION:
Affirmed.  

COUNSEL:
M'Mechen and Smith, for the plaintiffs in error.

Martin, (Attorney-General,) S. Johnston and Ridgely, for the defendant.

S. Johnson, for the defendant in error. This was an ejectment brought for lands in Baltimore county, and recovered. A writ of inquiry of damages has been executed, returned by the sheriff, and final judgment thereon.

The errors [**2]  assigned are the general ones, but it seems that the particular error is, that no writ of inquiry ought to issue in this case.

I shall therefore show, that a writ of inquiry may well lie in this case, and as this court can only judge of errors in the record before them, I shall confine myself to what appears therein. It appears from the record, that the lessor of the plaintiff recovered the lands contained in the writ of ejectment, on which a writ of possession issued, and the plaintiff was restored to his land.

That for the damages sustained by the said entry and ouster, a writ of inquiry was issued on the said judgment; and the jury, who were respectable inhabitants of that county, were so well satisfied that the entry and ouster was so violent as to deserve exemplary damages, that they gave such as should deter others from such proceedings; they showed their detestation of the same, and gave damages accordingly. This will appear on viewing the quantity of land recovered. It could not be for any mesne profits, for they were insignificant, as nothing of that sort appears on the record, and the jury were the proper judges of the damages sustained by the entry and ouster;  [**3]  the law will always presume that what they have done is right.

A writ of inquiry ought to issue in this case, to recover damages sustained, after a judgment to recover the land. 2 Bac. Abr. 181. The plaintiff in ejectment, if he prevails, is to recover damages sustained in the particular act of ouster complained of. Pract. Reg. of the Com. Pleas, 62.  

JUDGES:
Holt, Chief Justice.  

OPINIONBY:
Holt 

OPINION:

 [*9]  By Holt, Chief Justice. After a judgment to recover the lands, and before a writ of inquiry executed, a writ of error will lie. Carth. 205.
The reason, as I take it, is, that it is a mixed action, whereby the land may be recovered, and a writ of possession may issue for that purpose, which completes that part of the judgment; and damages for the ouster are to be ascertained by the writ of inquiry, for which a ca. sa. or a fi. fa. may be issued. This case shows that a writ of inquiry may issue to ascertain the damages, and so the usual proceedings thereon have been, as appears by Lilly's Ent. 606. There was a writ of inquiry after a recovery in ejectment, together with the writ of possession, and was expressly to ascertain the damages sustained by reason of  [**4]   the trespass and ejectment. And an action also lies for the mesne profits.
In Strange, 1056. After a special verdict in ejectment, on the death of the lessor of the plaintiff, who was tenant for life, the plaintiff has a right to proceed for damages and costs; which in that case, after verdict, must have been by writ of inquiry of damages, in case the judgment was given in his favour.
Buller's Nisi Prius, 80. says, it seems certain that the plaintiff may recover the whole mesne profits in the ejectment, and that it is apparent, from the 16 and 17 Car. II. which enacts, that in case the judgment be affirmed on the writ of error, the court may award a writ of inquiry, as well of the mesne profits as of the damages by any waste committed after the first judgment.
It will be said, that in ejectment the damages are merely nominal, and it is not usual to recover large damages for the ouster; that as it is but a rare thing that the entry and ouster is any other than fictitious, and no damages could be proved, they are, therefore, mostly small. But where the entry and ouster is actual, as in the present case, there can be no doubt but the party 

 [*10]  may proceed  [**5]  for the damages sustained by reason thereof, by writ of inquiry, which was the case in Lilly, 606.
The plaintiff may, also, in like manner proceed for damages and costs, where the lessor of the plaintiff dies after verdict, and where he was only tenant for life. Barnes's Notes, 87. shows that damages may be recovered, even for the mesne profits, on an ejectment, then a fortiori for the ouster.
Should it be alleged, that the damages should have been given by the jury on the trial, it is answered, that in many cases the defect of finding damages by a jury may be made up by a writ of inquiry. In Salk. 205. in replevin, the defendant avows as overseer of the poor for a distress for a rate, upon the 43 Eliz. c. 2. and on the trial the plaintiff is nonsuited; if the jury omit to find damages, this omission may be supplied by a writ of inquiry. Comb. 344. Skinner, 395. and Lord Holt said, that 17 Car. II. between Burton and Robinson, detinue was brought, and upon trial of the issue the jury found the damages, but not the value of the distress; and the court granted a writ of inquiry, which he said was contrary to Cheney's Case, and, as [**6]  he thought, contrary to law.
Sayre, 214. Upon a rule to show cause why a writ of inquiry should not be awarded for assessing treble damages, given by 43 Eliz. c. 2. it appeared, that the action was brought on account of something done by the defendant, as overseer of the poor, by virtue of his office; that there was a verdict for the defendant; that the jury only assessed single damages. The court ordered a writ of inquiry.
1 Siderfin 246. In detinue of charters on non detinet, verdict for the plaintiff and damages, but the jury did not find the value of the deeds, and a writ of inquiry was awarded to that purpose, returned and ruled good.
Cro. Car. 143. On a demurrer to evidence, where the jury was discharged without finding conditional damages, 

 [*11]  after judgment given, the court awarded a writ of inquiry, though the first jury might have assessed the damages, as in Plowd. 408. Trials per pais, 461. Ld. Raym. 60. Skinner, 596.
The general rule is, "that verdicts shall be favorably construed," and "if a verdict can be concluded out of the finding, to the point in issue, the court shall work it into form, and make it serve." Lord  [**7]  Mansfield said, "that where the intention of the jury is manifest, and beyond doubt, the court will set right matters of form, and the mere act of the clerk," and said, "the case is such a clear case, that the court may give judgment upon the substantial finding; though the clerk may have been irregular and faulty in point of form, it is very clear what the jury meant." Denison, J. said, "that verdicts are not to be taken strictly, (like pleadings,) but that the court will collect the meaning of the jury, if they give such a verdict that the court can understand them." 2 Burr 699, 700. Hob. 154. Trials per pais, 394-- 400.  2 Burr 1159.
Trials per pais, 298. A verdict may be taken by reasonable intendment, where it stands upright. 2 Raym 860, 865. After a verdict, the court will admit any intendment to make the case good, and all surplusage will be rejected, and no prejudice admitted.
A writ of inquiry is only for the purpose of informing the conscience of the court as to the damages.
By 1 Ann. c. 16. no judgment on any writ of inquiry of damages executed thereon, shall be stayed or reversed for, or by reason of any [**8]  imperfection, omission, defect, matter or thing whatsoever, which would have been aided or cured by any of the statutes of jeofails, in case a verdict of twelve men had been given in the said action or suit. See 32 Hen. VIII. c. 30. 18 Eliz. c. 14.
The general court affirmed the judgment of the county court.

 [*12]  The appellant removed the proceedings by writ of error to the court of appeals, where, at June term, 1793, the cause was entered agreed.  

10 of 20 DOCUMENTS 

James Calhoun and Philip Rogers's Lessee against Philip Hall.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 416; 1790 Md. LEXIS 4 

May, 1790, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT, for lots numbered 548, and 549. in Howard's Addition to Baltimore town.

By the bill of exceptions taken at the trial, it appears that the plaintiff, to make out his title to the lands in question, produced and read in evidence the grant of Lunn's Lot, dated the 20th July, 1673, in which Lunn's Lot is described as "lying in Baltimore County, on the north side of Patapsco River, and on a branch called the north-west branch, beginning at a bounded hickory standing on the west side of the falls of the north-west branch, and in the line of the land of Thomas Pert and Robert Benjor, called Salisbury Plain, and running with the line of the said land N. W. and by N. 38 perches, to a bounded hickory, in the line of the said land, then S. W. 165 perches to a bounded red oak, then S. 40 perches, then W. N. W. 45 perches, to a bounded hickory by the head of a branch, then S. 125 perches to a bounded red oak, then W. and by S. 20 perches, then S. and by E. 40 perches, then S. E. 80 perches to a bounded Spanish oak, then S. 60 perches to a bounded white oak, in the line of the land of John Howard, called Timber Neck, then by the said land E. S. E. 74 perches to a bounded white oak [**2]  of the said Howard's land, then S. E. 120 perches to a bounded red oak, standing in a bite of the N. W. branch, thence bounding on the said branch, lying up N. 50 perches to a bounded red oak, then N. N. W. 38 perches, then W. N. W. 100 perches, then N. and by W. 50 perches to a locust marked with four notches, then N. N. E. 45 perches to a bounded red oak in the line of the land of Thomas Cole, then W. 75 perches to a bounded oak of the said Cole's land, then by the said land, N. N. E. 275 perches to another bounded oak, then E. 65 perches to the falls, then bounding on the said falls, to the first bounded tree." And produced evidence to support his location of the same land, on the plots returned in this cause, especially of the bounded red oak, represented on the plots (see the plot annexed to the case of Helms v. Howard, at October term, 1784) at the letter B. called for at the end of the line from a locust, marked with four notches, and also of a bounded oak called for at the end of the W. 75 perch line from the said red oak, which second oak is represented in the said plots by the letter C.

The defendant laid down for illustration on the said plots, the tract of land called [**3]  Cole's Harbour, which he located on the said plots, and the first line thereof from the letter A. to the figures 98, the second line to the figures 99, then to 100, &c. and read the grant of the same in evidence, which describes the land as follows: "Cole's Harbour, lying on the north side of Patapsco River, and on the north side of the N. W. branch, beginning at a bounded white oak, being the westernmost bounds of the lands laid out for Alexander Mountney, and running W. to the mouth of a small gut, and over the said gut, and bounding on the said N. W. branch for the length of 320 perches, bounded on the E. by a line drawn S. S. W. to the first bounded tree, containing 550 acres," dated the 17th November, 1668. And the defendant by his counsel insisted that, if the Jury believed the defendant's location of Cole's Harbour just, the W. 75 perch line of Lunn's Lot must run with, and be bounded by, the first line of Cole's Harbour.  

COUNSEL:
Cooke, for the plaintiff.

Martin, (Attorney-General,) for the defendant.  

JUDGES:
JOHNSON, Ch. J. and GOLDSBOROUGH, J.  

OPINIONBY:
JOHNSON; GOLDSBOROUGH 

OPINION:

 [*417]  But the Court (JOHNSON, Ch. J. and GOLDSBOROUGH, J.) were of opinion, and directed the Jury,  [**4]  that in case 

 [*418]  the said red oak and the other oak were proved to their satisfaction to have stood as represented and alleged by the plaintiff, that then the course should be from the one to the other of them, without regarding the distance or reference to Cole's Harbour; yet the Court were of opinion, and declared to the Jury, that if the defendant's said location of Cole's Harbour was true, that then the grant of Lunn's Lot did not pass any land included therein.  

11 of 20 DOCUMENTS 

Daniel Dulany, Administrator of Thomas Bladen, against Charles Wells.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 20; 1790 Md. LEXIS 23 

October, 1790, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of debt on a bond.

By the statement of facts agreed on, and submitted to the court for their opinion and judgment thereon, it appears,

That Thomas Bladen, the above mentioned, and Charles Wells, the defendant, on the 1st of April, 1775, were subjects of the King of Great Britain, and on the said day and year the said Charles Wells, with William Goodwin, his security, executed his three obligations to the said Thomas Bladen. On the 25th of June, 1781, the sums mentioned in the conditions of the bonds, with interest thereon, amounted to the sum of    , sterling money; and on the day and year last mentioned, the said William Goodwin, before Peter Shepherd, Esq. one of the justices of the peace for Baltimore county, duly made the following oaths: "Baltimore county, 23d June, 1781, came William Goodwin, before me, the subscriber, one of the justices of the peace for the said county, and made oath on the holy evangelists of Almighty God, that he hath received for debts due him, before the first day of September, 1776, the sum of thirteen hundred and ninety-eight pounds, nine shillings and seven pence, and that he hath not paid for debts due from him, before [**2]  the first of September, 1776, above the sum of nine hundred and twenty-nine pounds, fifteen shillings and four pence, to the best of his knowledge. Sworn before Peter Shepherd." With which oath the said William Goodwin lodged with Thomas Harwood, Esq. treasurer of the Western Shore of Maryland, the sum of 11l. 14s. 4d. in the new bills of credit, mentioned in an act, entitled "An act for calling out of circulation the quota of this state of the bills of credit issued by congress; and the bills of credit emitted by acts of assembly under the old government, and by the resolves of convention," in discharge of the money mentioned in the conditions of the said bonds, and the interest due and unpaid thereon; which said new bills were of the kind made payable by the said act, of the rate of one for forty, in discharge of the said bonds, according to its value in current money. The said William Goodwin lodged the aforesaid sum of money, in the said new bills, on account of the said debt due on the said bonds, and in payment and discharge thereof; and on the same day and year took and received from the said Thomas Harwood the following receipt for the same, viz.

"The state of Maryland [**3]  acknowledges the receipt of eleven pounds, fourteen shillings and four pence, in lieu of four hundred and sixty-eight pounds, fourteen shillings and three pence, current money, from William Goodwin, on account of Thomas Bladen, agreeably to an act, entitled An act for calling out of circulation the quota of the state of the bills of credit issued by congress, and the bills of credit emitted by acts of assembly under the old government, and by the resolves of convention," made and passed at a session of assembly, begun and held at the city of Annapolis, on the 17th of October, 1780. Given at Annapolis, the 25th day of June, 1781.

"THOMAS HARWOOD, Treasurer W. S."

That the said Thomas Bladen, at the time of executing the said bonds, was a British subject, residing in Great Britain, and so continued ever since, until his death, which happened after the 25th of June, 1781, and before the commencement of this suit; and the said Thomas Bladen never did become a subject of this state, or of any of the United States, nor had he an attorney in fact, acknowledging himself as such, for the purpose of receiving debts always from the first of September, 1776, until the passing of the [**4]  act aforesaid, and constantly residing in the state, from the said 1st of September, 1776, until the passing of the said act of assembly. That on the 28th of June, 1776, a convention of delegates of Maryland made the following resolution, to wit:

"Resolved unanimously, that the deputies of this colony, attending in congress, or a majority of them, or any three or more of them, be authorized and empowered to concur with the other United Colonies, or a majority of them, in declaring the United Colonies free and independent states." That on the 4th of July, 1776, the congress made the declaration of independence. That a war was carried on between the United States and the King of Great Britain from the 4th of July, 1776, until the 3d of September, 1783, on which day peace was concluded between the United States and the King of Great Britain, which treaty is set forth at length in the statement.

Charles Wells, on the 4th of July, 1776, became a subject and citizen of the state of Maryland, and ever since hath been, and yet is, a subject and citizen of this state. Since the death of the said Bladen, and before the commencement of this suit, administration of all and singular the [**5]  goods and chattels, rights and credits which were of the said Bladen, at the time of his decease, was duly granted to the plaintiff.

If on this state of facts, the court shall be of opinion that the plaintiff ought to recover, then judgment to be entered for the value of the penalties of the bonds and costs of suit, to be released on payment of such sum as the court shall award to be due to the plaintiff, and costs; but if the court shall be of opinion that nothing is due to the plaintiff, then judgment is to be entered for the defendant for his costs, and either party may appeal from the opinion and judgment of the court on the state of facts, and have the same benefit of the state of facts in the same manner as could be had if a jury had been sworn and impanelled in this cause, and these facts had appeared, and been stated in an exception taken to the opinion of the court, and the court's direction to the jury thereon.

There were a number of other cases in which similar statements of facts were drawn up for the court's opinion thereon at this term.

The Court decided, that the payments made into the treasury were not valid, and gave judgment for the whole of the plaintiff's [**6]  claim, except the interest during the war; that is, from the 4th of July, 1776, to the 3d of September, 1783.

The defendants appealed to the court of appeals.  

DISPOSITION:
Reversed.  

COUNSEL:
Cooke, for the plaintiff.

Martin, (Attorney-General,) for the defendant.

Cooke, for the appellee. This case, when stated, will be found to lie within a very narrow compass, and if it were not for the importance of the subject, could not require much consideration.

It is not the case of a debt contracted by the subject of one independent nation with the subject of another.

It is not even the case of a debt contracted by a citizen of this state; for at the time the debt was contracted, this state, as an independent government, had not existence. But it is a debt contracted between two subjects of Great Britain, bound at the time of the contract by the same laws, and under the influence and obligation of which this credit was given. Whatever may be the rights of a conqueror, or of an independent state, over the property of alien enemies in time of war, does not strictly apply to this subject. Although, even in such cases, the laws of nations, to the honour of humanity, has greatly abated [**7]  of its ancient severity, as the customs and manners of the world change; as trade is extended, and thereby the most distant nations have a constant intercourse with ease and facility, the roughness of human nature is in a great degree polished, and the laws of nations has altered like other laws and customs, so as to become adapted to the situation, habits and convenience of those who are to be governed by them. 1 Ld. Raym. 282.

The law of nature is the only immutable law. It is implanted in the heart, and ought to govern the actions of all mankind. It is equally obligatory on states as upon private individuals; and a nation in its political capacity, as well as a private individual, can do nothing legally that is contrary to the law of nature. Ruth. b. 2. p. 6. s. 10, 11. Vattel, Prel. Discourse, s. 8, 9.

A person born in a state of society and government, contracts an obligation for the preservation of that government, in his earliest infancy, and before he is capable of making any other engagement whatever. Every person, therefore, knows, who enters into a contract with the subject of a foreign state, that the private engagements of the person who contracts with him, must [**8]  yield to the prior and superior obligations he owes to the state, whenever its safety or preservation may require it.

Self-preservation is the first law of nature. If I contract with a citizen of France, I know that he is under a prior obligation to his country that prohibits his making any engagement that shall endanger its safety. I know that upon a war being entered into between this country and France, if their safety required it, they might confiscate my debt, and apply the money to their own defence.

But though such contracts may be made to yield to the safety of the state, consistent with the law of nature, which declares self-preservation to be its first rule in the case of a state as well as of an individual, in a case of extreme necessity, yet Vattel says, it is not now practised in Europe, and any state who should do it, will be guilty of a breach of the law of nations, as now practised, as upon the faith of that custom many of these contracts are created. Vat. b. 3. c. 5. s. 77. Grotius, 700. Jenk. 201. 2 Bynk. 177. But if I contract with one of our own citizens, bound by the same obligations and the same laws, if he chooses to separate from this government hereafter,  [**9]  how can he acquire a right, or give it to others, to dissolve or annul this contract without my consent.

If two persons in a state of nature should enter into engagements with each other, before they had contracted any prior engagements with society, such private contract would be so far an alienation of their natural rights, that neither of them, without the consent of the other, could dissolve that contract, or by entering into, and becoming a member of, a society afterwards to be formed, or then existing, could give that society a subsequent right to do it. 1 Ruth. c. 12. s. 9. 2 Ruth. c. 7. s. 12. c. 2. s. 4. Vat. Prel. s. 11. 1 Hale's P. C. 68. 1 Bl. Rep. 3. Ratcliff's Case.

How contrary to every idea of justice would it be to suppose that any man in a state of nature, indebted to another, might, by a quarrel between them, extinguish the claim of his adversary.

Such principles would tend to perpetual enmity and war among mankind; and if an individual could not do this himself, he could not, by any subsequent engagement with society, transfer such a right to others.

Upon the same principle, if one state is indebted to another, (and all states are in a state [**10]  of nature with respect to each other,) no quarrel or war between them will extinguish the debt. So if two states join and form an empire, or if one subdivide and form two, the debts contracted prior to such events, remain and must be satisfied. Puff. b. 8. c. 12. s. 2.

Here, then, was an obligation contracted, not between subjects of different independent states, subject to the control, and the prior obligations to the respective states of which they were citizens, but between two members of the same state, equally bound at the time by one common law. Could either of these, joining with others, form a new government, and vest such powers in it as to extinguish this prior obligation, which was contracted before the government itself existed? Government itself may be dissolved, either by breaking the public compact by general consent, or by the power of a conqueror. The obligations to the state in these cases cease; but yet the contracts of private individuals remain. Ruth. b. 2. c. 10. s. 13. Ruth. b. 2. c. 6. s. 10, 11. 13. Ruth. b. 1. c. 13. 29. Vattel, b. 2. c. 14. s. 216.

When Great Britain, by her conduct, justified the resistance of America, and the declaration of independence,  [**11]  all obligations to that government ceased. But our private obligations remained, and we were precisely in that predicament of a man who should contract a debt in a state of nature, and afterwards enter into civil society. We had already alienated so much of our natural liberty by the debts we had contracted, and could form no other contract, without the consent of the creditor, to defeat that obligation.

There is a wide difference between power and right. The state of Maryland might refuse the sanction of her laws for the recovery of such a debt; but if it was necessary on this occasion, I should contend, on the principles I have suggested, the state could not extinguish it, as being contrary to the laws of nature. Ruth. b. 2. c. 5. s. 3. c. 9. s. 6.

But in this case there can be no occasion to resort to that question; because, when the creditor comes here to seek his remedy, he submits to the laws of the state; if they prohibit his recovery he must fail; if they do not, he must have judgment in his favour.

The laws of the state are the terms adjusted in writing, on which we are to live with the state, and with each other. The law of nations and public treaties, are [**12]  the terms on which all states are to live with one another. Furg. Essays, 440, 441.

When there is no treaty, the law of nations, as now established, must prevail between foreigners. But the law of nations is of little import when there is a treaty, for that must be the law between independent nations in all cases to which such treaty extends.

In the consideration of this subject I shall examine,

1. Whether, by the law of nations or the common law, this debt was confiscated or extinguished, independent of any positive law of the state?

2. Whether it was confiscated or extinguished by any law of the state?

3. If it was, what is the force and operation of the treaty between Great Britain and this country, of the 3d September, 1783?

I admit that while a war exists between two nations, all intercourse between their subjects ought to cease, and that it is alone a suspension of the remedy, and may be pleaded in bar to the recovery of debts. Vat. b. 3. c. 5. s. 77. Grot. 700. 2 Bynk. 177. Park, 267.

But it is only a temporary bar that exists while the war continues. The debt remains in conscience, and peace restores the right of action. If there had been [**13]  no law of this state respecting this subject, nobody could doubt for a moment but that, on peace taking place, the creditor might have brought suit, being restored to his right of action, and have recovered his debt. Dreadful would be the consequences if it were not so; for upon every war among the nations of Europe, the subjects of those states would be, at least one half of them, made bankrupts and ruined. Bynk. b. 1. c. 7.

But the law of nations, as now established, is fixed upon more solid principles of justice and humanity. If the law of nations and the common law operate only as a temporary bar to the recovery during the continuance of the war, let us examine what operation the acts of this state can have on the question. (Act 1780, c. 5.)

That act is nothing more than a legislative compact between the state and its own citizens; the act gives them permission, but does not compel them, to lodge the money in the treasury, (for the use of the creditor,) with assurances that the money so lodged may be pleaded as a payment, or that they would not, by law, give a sanction to the recovery of other money in lieu of it. If this law or compact is repealed or broken, and private [**14]  individuals have been injured by it, that is a subject which relates to the state and its own citizens that complain of the injury; but the foreign creditor is in no manner affected by it.

The state did not intend to confiscate the debt. If they had, they would have appropriated the money so paid to the use of the state; whereas it is expressly declared to be lodged in the treasury for the use of the creditor, who may receive it whenever he thinks proper. But the sense of the legislature is clearly expressed by a subsequent law of the same session, when they confiscate all British property, debts only excepted. Act 1780, c. 45.

If they had supposed debts were confiscated by the first law, there was no occasion to have said any thing respecting them in this; and as the words are general, comprehending all British property, which would have included debts, it is plain by the exception, they meant to declare that debts were not intended to be confiscated. Puff. b. 8. c. 6. s. 20.

But if the state of Maryland had expressly confiscated British debts, which I contend they have not, nor did not intend to do; yet still, I should now contend the treaty of peace would have done [**15]  away the effect of such an act, revived the claim, and entitled the creditors to recover.

It is no longer a question whether the congress had a power to make such a treaty. It is no longer a question whether the treaty, thus made, can bind the judges to decide upon it, in opposition to the then existing laws of the state. It is now declared to be the supreme law of the land, and is to be carried into effect, according to the spirit, true intent and meaning thereof. Act of 1787.

The treaty was not intended to operate barely as a repeal of other laws, as it has been contended. If that was the intention, it would only have provided that all laws preventing the recovery of debts should be repealed, and the courts of justice open to suitors on both sides. But this is not the treaty which plainly means that these laws, and all proceedings under them, shall be no impediment to the recovery of debts in sterling money, according to the terms of the original contract.

Suppose the treaty to have recited the law of 1780, c. 5. to have recited the payments in the treasury under that law, and then to have declared that notwithstanding such payment the creditor might recover the debt [**16]  in sterling money, will it be said this court could avoid carrying such an express provision into execution?

There never was a treaty ending a war without mutual stipulations of benefit. At the time of the contest between Great Britain and America, Great Britain claimed the right of sovereignty over America. America thought she ought not to be subjected, and Great Britain ceded to this country its independence upon condition that they paid the debts due to the British creditors. Puff. b. 8. c. 8. s. 3. c. 10. s. 7. Ruth. b. 2. c. 9. s. 6. Vat. b. 3. c. 2. s. 12.

Suppose any island in this bay, the property of a citizen of this state, had been ceded by the treaty to the British government, would not the grant of the state, and the right acquired under it, be superseded and lost to the proprietor? There can be no doubt of it.

The government have a right on such occasions to sacrifice the property or the privileges of any part of its citizens for the benefit of the whole.

If this be law, let us examine whether the fair and necessary construction of this treaty is not as plain to that effect, as if such a clause had been expressly contained in it. Vat. b. 2. s. 264.  [**17]  271. 300. 307. Co. Litt. 147. a.

There are two methods of construing treaties:

1st. According to the words.

2d. That it may operate to the reciprocal benefit of both parties, and to have an effect in furtherance of natural justice and equity.

The 4th article of the treaty has the following clause: "The creditors on either side are to meet with no legal impediment to the recovery of the full value, in sterling, of all bona fide debts heretofore contracted." Words as expressive as language will permit, and which comprehend as well their debts that have been deposited in the treasury, as those which have not been attempted to be paid at all.

A law that is universally beneficial cannot contain exceptions; for such would make it only beneficial in the cases not excepted. The word all, without any exception annexed to it, is a term of universality, and cannot be restrained, there being no ambiguity in the expressions.

To say that this clause was intended to restrain the enacting of future laws, would be to make it absurd and of no effect, a mere dead letter; for any act passed after the treaty is guarded by the 6th article, and would be null and void. To put [**18]  such a construction on this article as to consider it a guard against illegal acts, would be absurd, and all constructions that introduce absurdity are to be avoided. They have said there shall be no legal impediment, which could only mean the impediments that existed before the treaty was made should be done away. See Vattel, b. 2. s. 264.

The words are general. If any restrictions were intended, the exceptions ought to have been inserted, or the words will prevail. If they mean what they have not expressed, it was a deception of which they cannot avail themselves.

Besides, justice and reciprocal remedies to the subjects of both nations require the construction I contend for. They made no laws in England for payments of this nature. All persons having claims may recover them; and it was certainly the intention to place the subjects of both countries on the same footing.

If private persons enter into contracts, they cannot avoid them, or render them nugatory by any implied reservation; this would be opening a door to endless contention, and the honour and good faith of a nation is more to be considered in the execution of its contracts, than those between private individuals.  [**19]  

I have shown that neither the law of nations, nor the common law, were any impediment to the recovery of debts after peace.

I have shown that the state did not confiscate, but expressly excepted debts out of the act. If the act of 1780, c. 5. had not been passed, would the payment in the treasury have been good? Certainly not; it would have been illegal, and the court would have paid no regard to it. But the act of 1780 made the payment an impediment to the recovery; therefore it was a legal impediment, and there was no other legal impediment. If the treaty was not intended to remove this impediment, created by this law, it could have relation to nothing, and is a mere dead letter.

If the law had not passed, all debts would have been recoverable after peace, if the treaty had said nothing about them. All debts not paid into the treasury under the law, would be recoverable if the law had continued, and the treaty had been silent respecting them; then the treaty must, by necessary construction, be applied to avoid these payments, or it can apply to nothing.

Suppose all the debts had been paid into the treasury, and neither party knew it at the time of making the treaty,  [**20]  would not the treaty apply to them? As there is no other impediment, it must apply to that or nothing.

When property is actually seized, the right of property must be transferred by the pacification, or the party may seize the property again, whenever he is able and strong enough to do it. Puff. b. 8. c. 6. s. 20. The state confiscated, and seized some property. 5th article of the treaty. As to that, the treaty stipulates that congress shall recommend a restitution of confiscated property; but as to debts it does not recommend; the provision is express, as these were not confiscated and seized, "that there shall be no legal impediment to the recovery of all bona fide debts heretofore contracted, without any exception whatever." Vat. b. 4. c. 2. s. 21, 22. b. 2. s. 264. 273. Puff. b. 5. c. 12. See also Mr. Jefferson's correspondence with Mr. Hammond, page 30. 48.

How can it be said that it was not the intention of the treaty to provide for the payment of debts over which the state had exercised their power, when it appeared that as to debts, of all description, the treaty speaks positively; but as to those subjects over which the state had exercised their power of confiscation,  [**21]  it only recommends a reversion of their laws, and restitution.

It is contended the person must be a creditor at the time the treaty was made to derive any benefit under the 4th article, and then it is alleged that by the deposit in the treasury, the debt was paid and extinguished; all relation between debtor and creditor ceased, and that a personal debt once extinguished, is gone for ever: This is quibbling, and reprehended by Vattel and all other writers on treaties. What was the intent of the contracting parties? Could the British commissioner, or any man England consider the payment, or deposit in the treasury of paper money, as the payment to the creditor? But the debts did exist, they were not confiscated, but only a right given to the debtor to plead this deposit in our own courts in bar to a recovery. There can be no payment unless it is received and accepted, and the act of assembly could not oblige the creditors to accept it; it could only give a power to plead the deposit in bar. The debt existed until it was bona fide paid according to the original contract of the parties, unless it be in such instances where the creditors themselves, or by their agents, consented to [**22]  receive paper, or any other thing in discharge; in such cases, an extinguishment by the act of the party for a moment, would be so for ever. But it is not so, where the suspension or extinguishment is by operation of law, and not by the consent of the party. If an obligee marries an obligor it is an extinguishment; so if the obligee makes the obligor his executor. 1 Atk. 461. cites 1 Sal. 229. 3 Co. 135. But if administration be granted to the obligor, the remedy is suspended only, for on his death it revives at law against his executor or administrator. 1 Atk. 461. So if there be an outlawry, it suspends the remedy only; but if it be reversed, or there be a pardon, it removes the impediment. Gilb. C. P. 202. Co. Litt. 128. b.

In like manner, war suspends the remedy, but peace restores an alien to his right of action; for though each individual acquires a right as against the enemy himself, to retain the debt during the continuation of the war, yet the plea of alienage is only a temporary bar, and is not said to be more in any book of authority that can be produced. There is no act of the party in this case that can operate against him; no consent to dissolve this contract, or [**23]  to suspend it for a moment. Grot. 700.

The effect of this act, therefore, was only to take away the remedy by action, which continued until the treaty, the act of a superior power, did away all the effect of the act, and revived the remedy. As this treaty is the supreme law, and made so by our own consent, we have thereby, by our own consent, revived the remedy.

An infant by a promise at full age, may give remedy for a debt which before existed in conscience only. Cowp. 289. So the promise of a bankrupt revives a debt extinguished by the certificate of the commissioners of bankruptcy. Cowp. 290. 544. Doug. A debt, the recovery of which is barred by limitation, may be revived by a bare acknowledgment only. 2 Burr. 1099. Congress having a right to make treaties, had of necessity a right to supersede the effects of any precedent laws of any state in the union. But we have confirmed this treaty by a law of our own, and declared it the supreme law, and that it shall be carried into effect according to the spirit, true intent and meaning of it. This makes the question to be simply what is the intention and true construction of the treaty.

I contend, that as there was no impediment [**24]  to the recovery of all debts, except the act of 1780, c. 5. that it was the intention of the contracting parties to remove that impediment, or the words can have no legal operation; that debts not paid into the treasury might have been recovered without this clause; that no future law could legally be made, if this clause had not been inserted, to prevent a recovery.

That you cannot suppose it was intended to guard against paper emissaries, and the payment of debts in paper, since it had ceased to be a tender long before the peace.

That it could not operate as a repeal of the law of 1780 only, because that would be doing nothing. No money could be paid under that law after the first day of June, 1781, and the effect of the law had taken place long before, and there was no occasion to repeal it, unless it was intended also to do away every thing which had been transacted under the law, and render the payment wholly void and of no effect.

The government might sacrifice the benefits that individuals would have had, to obtain peace. This construction is most agreeable to the general and extensive words of the treaty; to the reciprocal benefits intended by it to both parties,  [**25]  and most consonant to justice and equity, and the law of nature, which expressly declares, that all debts ought to be paid according to their full value at the time of the contract. Ruth. b. 1. c. 13. s. 29.

Such has been the construction of this treaty by our own legislature, upon another clause of it; which provides, "that all persons who have any interest in confiscated lands, either by debts, marriage-settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights;" and under this clause the state of Maryland has paid one debt of 1200l. sterling, after having confiscated and sold the estate that was mortgaged to secure it.

So in the treaties made between France, Spain and Holland with Great Britain, about the same period, there is no such provision, because there existed no such acts of those respective states, which made it necessary to render their effects, by such a clause, of no validity.

But to confine the construction of the treaty to debts not paid into the treasury, or to any future acts of this, or other states, is giving the words only one half of their operation, for they certainly comprehend all debts, and all the [**26]  laws then existing, as well as any that should thereafter be made. In fact it is downright quibbling, and not unlike the construction put upon a treaty stated by Puff. b. 5. c. 12. between Fabius and Antiochus, in which the Romans stipulated to restore one half of the ships of Antiochus they had taken, and then sawed the whole of them in two, by which they rendered the treaty wholly useless, and which Puffendorf reprobates with great severity.

In the case that was lately argued in the supreme federal court, The State of Georgia against Powel Brailsford and Hopton, the court were unanimous in declaring that as the state of Georgia had only sequestered, and not confiscated, the debt in question, there was no doubt that the property always remained in the creditor, and that independent of the treaty, peace restored the right of action for the recovery.

We have here the common law, the law of nations, and the treaty also, in our favour. The state of Maryland did not confiscate debts; but by the act of 1780, c. 45. which must be considered as part of the same system, expressly excepted them, and the determination of congress as to this point is directly in our favour.

I shall [**27]  only further remark, that if the debt is recoverable, interest, the suit being upon a bond, is as much a part of the debt by the contract of the parties as the principal, and must be recoverable also. 3 Burr. 1375.

Key, for the appellee. The magnitude of this subject arises from the great degree of property at stake on the decision of the court, and the general expectancy of the people has given it a degree of consequence and importance far beyond what any difficulty or intricacy in the case would of itself occasion.

By an act of the legislature (1780, c. 5.) of Maryland, after it becomes an independent state, the citizens of said state, debtors to British subjects, were permitted to discharge their debts under certain circumstances, by a payment of continental paper money to the treasurers of said state, and the receipt of the treasurers should be good and sufficient evidence of the payment of such debt, in the courts of law and equity.

By the 4th article of the treaty between America and Great Britain it is agreed, "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore [**28]  contracted."

Act of May, 1787, c. 25. The state of Maryland by a law enacted that the said treaty should be the supreme law of the land, and should be so considered and adjudged in all courts of law, and all causes and questions cognisable in said courts ought and shall be determined according to the said treaty, and the tenor, true intent, and meaning thereof.

Many of the citizens of the state of Maryland availed themselves of the act of 1780, and paid their British debts into the treasury. The creditors, by virtue of the treaty, have commenced suits against such debtors, and they have pleaded their payments in the treasury under the act of 1780, in bar of the recovery of such debts, and the simple question is, "whether under, and in virtue of the said treaty and act of 1787, the creditors can now recover their debts against such payments, made in pursuance of the act of 1780."

Questions depending between nations must be determined by the laws of nations where there has been no treaty. But if a treaty exists, the true construction of that treaty must be the rule, and must govern between them.

1. However, I shall consider the situation of the creditor and debtor [**29]  at the time of the contract, and the operation of the laws of nations upon their contract, arising from the establishment of the state of Maryland into an independent sovereignty, and the subsequent war.

2. The operation and extent of the act of 1780, c. 5. sec. 11. upon those debts.

3. The operation of the treaty of peace, the act of 1787, and the act of 1780, as being made pari materia, and from thence form a conclusion of clear construction that the British creditors are entitled to recover of the original debtors the amount of their respective claims, notwithstanding the payment into the treasury of Maryland.

Upon the first point. It is obvious that the debt was contracted between citizens and subjects of the same government, bound by the same laws, under the same obligations. That by the secession of the colonies of North America from Great Britain, the debtor and creditor became citizens and subjects of different independent governments, and I hold, under such circumstances, that the debtor carried the obligation of the debt upon and with him when he became the member of a new independent government. 1 Ruth. c. 12. s. 9. Vattel, Prel. sec. 11.

If two persons [**30]  in a state of nature enter into a contract, and afterwards become citizens of the same or different governments, the contract still exists between them, and is not defeated by their posterior act.

The same reason exists if two persons are citizens of the same state or government, and one becomes a citizen of another government, the anterior contract or obligation is not destroyed by this posterior conduct, and it follows necessarily, if the same government of which they were citizens divides itself into two or more independent sovereignties, the anterior contract rides over the subsequent act of the parties, and binds them though they become members of different sovereignties created out of that government of which both were citizens at the time of the contract. This may be familiarized by examples; if A. a citizen of Maryland, largely indebted to his fellow citizens, goes to France and there becomes a citizen, it does not annul or dissolve contracts antecedently entered into by him, but they follow and attach upon him.

The state of Virginia allows a citizen to expatriate himself by a particular law. This done, such person is in a state of nature with respect to all governments;  [**31]  free to choose of which he will become a citizen, and becoming one, his debts and contracts antecedently created follow and attach upon him, and any other construction would be idle and absurd; it would be preposterous to suppose, that by permitting a person to expatriate himself, he was thereby to be exonerated from his private contracts and engagements.

If from reason and authorities it is clear that where two persons in a state of nature enter into a contract, and one or both of them becoming afterwards members of different sovereignties, the contract still follows and binds, there certainly is, and can exist, no sound distinction where two citizens of the same government enter into a contract, and afterwards become citizens of different sovereignties, but the contract must equally follow and bind; and from this it necessarily results, that the Maryland debtor, by the erection of Maryland into an independent sovereignty, is bound by those debts and contracts entered into when Maryland was a part of the British empire, and before its secession.

But it is objected, that the subsequent war between America and Great Britain confiscated the debts due from an American to a British [**32]  subject, though created when under the same common government, and being alien enemies by reason of the war, the debt is not recoverable.

To this I reply, that by the law of nature all property and debts of aliens became confiscated by a declaration of war. In ancient times every thing belonging to an enemy was fair gain, and in the most polished nations of antiquity the life of an enemy as well as his property was in the captor. They were generally, when taken, sold as slaves. But war is sufficiently dreadful of itself, without recurrence to the barbarous ideas and usage of even the most refined of the ancient nations. To the honour of humanity, the frequent intercourse of modern nations, and the reciprocal benefits of extended commerce, has established a different law; and however, in cases of extreme necessity, nations may be justified by the law of nature, to preserve themselves by a confiscation of debts due to an enemy, yet only such necessity can justify it, and it is not the law of nations, as now practised, so to do. The invariable usage is otherwise, and the history of the present century does not afford an instance of confiscation of debts by a declaration of war. Millions [**33]  would have been beggared on such principles in the frequent wars between England, France, Spain and Holland, within this century; and debts in modern times, even between citizens of different governments, being contracted upon faith of the usage now established among nations, it would be a breach of that faith, and a violation of the law of nations, to consider a declaration of war, of itself, as a confiscation of debts.

A declaration of war does not pay debts between the parties; but upon principles of policy, nations may not suffer their citizens to pay debts to enemies during a war, because it carries funds and resources out of their country to enrich their enemies. It weakens themselves and empowers their adversaries. War at present, therefore, only suspends the remedy, and if a suit be brought to recover a debt during a war, alien enemy may be pleaded in abatement or bar of such recovery. But such bar is only a temporary one; exists during the war only, et cessante ratione cessat et ipsa lex. The policy ceasing, the measure directed by it ceases also, and peace, which restores the remedy, entitles the party to recover his debt from the alien debtor. See Vattel, b. 3. c. 5.  [**34]  s. 77. Grot. 700. Bynk. 177. Parker's Rep. 267.

If, therefore, the situation of the contracting parties, becoming subsequently members of a new independent sovereignty, does not destroy the debt or contract, but it still continues to exist between them, and if a declaration of war, according to the law of nations as now practised, does not, of itself, confiscate the debts due to aliens, we must recur to the act of 1780, permitting the payments from the debtors into the treasury, to see the operation and extent of that act, which leads me to the second point, to wit:

The operation and extent of the act of 1780, c. 5. s. 11. upon these debts. This act permitted the citizens of Maryland, debtors to British subjects, under certain circumstances, to pay the amount of their debts into the treasury, and the treasurer's receipt should be evidence of such payment.

I shall observe upon this act, that the debts due to British subjects were not confiscated, and what evidences this clearly, besides the exposition of the law is, a future law of the same session, where, in the general confiscation law, debts are excepted. This law did not even compel or direct debtors to pay their [**35]  debts into the treasury, but was merely permissive, and upon such payment made, authorized the debtors to plead the same in bar to the claims. Had a general confiscation of debts been contemplated, they would have been ordered to be paid into the treasury; but this was not the case. This law, then, became an impediment only to the recovery of British debts, as it furnished the debtor with a plea of payment against the creditor, though in truth and fact, no payment between the creditor and debtor existed. From reasons of policy this law took place, and might be availed of by the debtor in the same manner as alien enemy at common law might have been pleaded by him, and being an impediment to the recovery of the debt by the creditor, it would have barred the recovery had not the treaty and act of 1787 taken place, as I mean to show in the consideration of the third point, to wit:

3d. Point. That the treaty of peace, and act of 1787 together, repeal the act of 1780, and all benefits derived under it, and leave the creditor to recover his debt from the original debtor. I have already observed, that the law of nations governs between nations where there is no treaty; but if a treaty [**36]  exists, the true construction of that treaty must determine a controversy.

Whether the congress of the United States of America could then legally make a treaty to contravene the positive laws of any individual state or not, can be no question in our courts. The act of 1787 declares the treaty to be the supreme law, and directs our judges to be governed by it.

Vattel, b. 2. c. 17. s. 269. The first general rule in the construction of a treaty I take to be the words of the treaty itself, expressive of the sense of the contracting parties, and the words of the 4th article of the treaty are so clear and precise that it seems to require some ingenuity to misunderstand them. "That creditors on either side shall meet with no lawful impediment," &c. What then is the obvious intent of the contracting parties, but that all bona fide debts theretofore contracted should be fully paid? Was it, or could it be conceived by the agent of the contracting powers, that a payment into the treasury of Maryland of depreciated paper was a full payment of the debts to the creditor? Most certainly not; but if any doubt or obscurity arises upon the expressions in this article, or if common sense and [**37]  common honesty can doubt the meaning of the contracting parties at the time, let us resort to the preamble of the treaty as a key to discover the meaning of them.

It wisely states, that reciprocal advantages and mutual conveniences form the only permanent foundation of peace between states, &c.; that this treaty should take place on principles of liberal equity and reciprocity, and reprobates partial advantages as seeds of discord, &c.

Now let us examine the reciprocity and liberal equity contended for. A citizen of Maryland is to be protected in the payment to a British creditor of depreciated paper money into the treasury of Maryland, in discharge of his debt, and the British debtor is to pay the American creditor in gold and silver, to the full amount of his claim. For instance, an American debtor owes 1,000l. to a subject of Great Britain, and pays into the treasury of Maryland the balance of 50l. in discharge thereof, and being the creditor of a British subject to the amount of 1,000l., he sues for it under the treaty, and recovers it in gold and silver. Now, if this be the spirit of the treaty upon principles of reciprocity and liberal equity, and reprobating partial [**38]  advantages, the whole college of Jesuits may take lessons of chicane and duplicity from its construction.

But it is objected, that the treaty mentioning debts, must mean debts then existing, and these debts being discharged by a payment into the treasury, are no longer debts, and, consequently, the treaty cannot operate on them.

This is begging the question--the petitio principii of the logicians; for though the act of 1780 might permit the payment into the treasury to be pleaded in bar of those debts as an agreement between the state and the debtors, yet the creditor was no party to this law, and without his assent was to be injured by its operation; and what was the treaty for, but made by the heads of the respective contracting parties, with a view to the benefit of the individuals of each nation. The contract is, that the creditor on each side shall meet with no lawful impediment to the recovery of their debts. Then, as between the British creditor and American debtor, no payment has ever taken place, and if no payment, consequently the debt still exists and the creditors are entitled to recover, and this recovery between the creditor and debtor is guarantied by the 4th [**39]  article of the treaty.

A declaration of war, as at present practised, suspends the remedy for the recovery of the debt; but war ceasing, the remedy revives with peace, and the debt is then recoverable. The state of Maryland, by the act of 1780, permitted the debtor to pay his debt into the treasury, and plead or give in evidence such payment in bar to the recovery. This law, then, became an impediment to the creditor in the recovery of his debt, and peace, which in ordinary cases restores the remedy, would not have restored it in the face of the law, therefore it became necessary for a precise stipulation, and it was contracted in the 4th article of the treaty, that there should be no lawful impediment to the recovery. Now on a peace taking place, there being no impediment but this law to prevent the recovery of the debt, the treaty was intended and must be construed to operate on this very law of 1780, and though the treaty would not of itself annul the law, yet being declared the supreme law of the land in 1787, it does repeal and annul the provisions of the act of 1780.

Vattel, in his chapter on the construction of treaties, says, that "where one construction leads to [**40]  obscurity, and another to clearness and certainty, there can be little difficulty in determining which to choose."

Now those debts are within the meaning of the treaty, or you construe it to be a dead letter. The treaty does not extend to illegal acts, but, no doubt, extends to laws (which are legal acts) of the state before the treaty. These debts were contracted before the treaty, and the only impediment to the recovery is the law passed in 1780, and, consequently, that law was contemplated by the contracting parties, and comes within the words and meaning of the treaty, and in truth, fact, honour and justice, there being no payment by the debtor to the creditor, the debt as between them still existed, and being an existing debt between them at the time of the treaty, and the treaty operating to protect the rights of the individuals of each nation, the debt is recoverable by virtue thereof and the law of 1787. The words of the 4th article are universal and comprehensive. But it is objected that the act of 1780 gave the debtor a right to pay his debt into the treasury, and upon payment, this right vested in him, and being once vested, could not be devested; once a payment, always [**41]  a payment, and the repeal of the act could not defeat rights accrued under it.

It may be answered: the payment into the treasury of Maryland was a legislative compact between the state and its citizens. The foreign creditor was no party, and, as I have observed, the act gave the debtor a right to plead the payment in bar. Now as the legislature of Maryland had a right to confer a benefit on the debtor, its power was equal in depriving him of it afterwards, as exigencies required.

Had the creditor brought suit during the existence of the law, the plea of payment in the treasury would have been a bar, and yet common sense must admit it to be no payment to the creditor; but no suit being brought until the plea given by the act of 1780 was destroyed by the treaty and subsequent act of 1787, it is no longer efficacious. There never was a treaty without stipulating natural concessions for mutual benefit, and it was found necessary, in attaining this end, that creditors on each side should be protected in the recovery of their just debts, and this is declared to be upon principles of liberal equity and reciprocity. What necessarily follows? That to obtain the great end of peace,  [**42]  as beneficial to the whole states, the rights of particular individuals should be sacrificed for the general good; and the payments into the treasury being a measure of policy, and not a payment to the creditor, such payments were sacrificed to the general public welfare, and a stipulation was entered into that the creditors on each side should meet with no lawful impediment to the recovery of their debts, and, consequently, the creditors are entitled to recover.

The stipulations of the 4th article are absolutely void and nugatory upon any other construction than what I contend for. Supposing the act of 1780 never to have taken place, upon the establishment of peace the creditor could sue for and recover his debts. Then why introduce this article but to defeat the legal impediment to the recovery of these debts, created by the positive law of 1780? It is objected that it was to guard against future emissions of paper money; but this could not be the object of the contracting parties. Paper, by law, was no tender, and had then ceased even to be a circulating medium. It was felo de se; the immensity of state and continental emissions of money had made it its own executioner; and [**43]  at this time the revival of a paper emission under which all had suffered, was never contemplated. The spirit and letter of the treaty meant to operate on a very different subject; to restitute the injured creditor the recovery of an honest debt, suspended by the war and the provisions of the act of 1780.

As the subject will be exhausted by gentlemen who, as counsel, have had the cause under consideration years before I was engaged in it, but who have aided me with their notes; to their arguments I shall refer, observing only, that this case must ultimately rest on the true liberal construction of the treaty, upon such principles as will, in its own language, best ensure a permanent peace, by making liberal equity and mutual reciprocity (free from partial advantage) the basis of it; and only suggesting to your honours, that the empire of America, now risen to importance amongst the nations of the earth, should establish its honour by a religious adherence to the extent of its engagements, free from cavil and exempt from chicane.

Jenings, for the appellee. Before and at the time of the happening of the disputes which have produced a separation between Great Britain and America,  [**44]  many of the subjects and inhabitants of the state of Maryland were indebted in considerable sums of money to several British subjects then and still resident in Great Britain.

Soon after the different states had assumed to themselves the powers of legislation, independently of the government of Great Britain, the state of Maryland, amongst the rest, made an ordinance or act of assembly, whereby the representatives of the state in congress were empowered to enter into a federal union. This union was in a short time effected, and was afterwards confirmed by a law of the separate legislature of each state.

By the terms of the confederation the sole power of making war and peace was lodged in the congress, as in the body which represented all the states.

Previously to the year 1780, both the congress and the different states of America had issued great quantities of paper money, which were then in a state of extreme depreciation. In this situation of things, the state of Maryland thought it expedient to pass a law to empower debtors within that state, to pay into the treasury there, in discharge of their several debts, the amount thereof in paper currency, according to,  [**45]  and estimating such bill in each payment, at the sum for which it was drawn, though at that time, a bill for forty dollars was worth only one dollar in specie. For this purpose the act of assembly, 1780, c. 5. was passed.

In pursuance of this act of assembly, several of the inhabitants of Maryland who had contracted debts with British subjects resident in Britain, paid into the hands of the treasurer of the state, within the time limited by the act, the amount of their several debts, either in the old bills of credit, when one dollar in specie was worth only forty in paper currency, or in new bills, at the rate of one for forty of the old bills.

On the 3d of September, 1783, the definitive treaty of peace between Great Britain and America was concluded, and by article 4th of that treaty, "it is agreed, that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts, heretofore contracted."

In April, 1787, the following act of assembly was passed:

"An act declaring the treaty of peace between the United States and his Britannic Majesty, the supreme law within this state.

"Be it enacted [**46]  by the general assembly of Maryland, and it is hereby declared, that the treaty of peace made between the United States of America and his Britannic Majesty, is the supreme law within this state, and shall be so considered and adjudged, in all courts of law and equity; and all causes and questions cognisable by the said courts respectively, ought and shall be determined according to the said treaty, and the true intent and meaning thereof."

Since the treaty of peace, some of the British creditors have, for the recovery of their debts, commenced actions which are now depending against their debtors, residents in Maryland, who, by way of defence, insist, that having complied with the terms prescribed to them by the act of assembly, passed in 1780, they are legally discharged from the payment of these debts.

The true construction of the treaty includes these debts, and it was intended they should be recovered.

This is the first question which has been agitated in this state under the treaty, and being now to be determined by our own tribunals, we should decide it on the most liberal principles. We have just become a nation, and it is with nations as it is with individuals;  [**47]  their first conduct generally stamps their character for integrity.

The preamble plainly shows the principles on which the treaty should be construed.

Questions between nations must be decided by the law of nations, where there are no treaties. But where a treaty exists, that must be the rule. There being a treaty in this case, the law of nations is of little import, unless the expressions of the treaty are ambiguous, and then the law of nations may be called in aid as a rule of construction.

It is still more useless to run back into the conduct of barbarous or ancient nations. In former times, whatever was taken by enemies, whether persons or property, belonged to the captors. They acquired the power of life and death, of slavery and manumission. Their conduct after a victorious war was more or less savage and cruel, as they were more or less civilized. The Romans dragged conquered princes at their chariot wheels, when the generals were decreed a triumph. But if the English had treated marshal Tollard in this manner when he was brought a prisoner to London, in the reign of Queen Anne, ancient practice would not have justified such barbarity.

To wander into remote [**48]  antiquity on these subjects, however amusing, cannot enforce conviction respecting the present question. To pursue the argument in this manner is as absurd as quoting the ancient Romish canons respecting the annulling of Shandy's baptism, which occasioned Toby to remark, "but what has all this to do with the child of a protestant gentleman, christened Tristram, against the will of his friends and relations?" So here, what has the conduct of the Medes, Persians, or Macedonians, or the period of uncivilized customs in England, to do with the present law of nations, or the construction of a treaty entered into for settling peace on reciprocal and liberal terms, between America and Great Britain, who entered into and agreed to be bound by this treaty to terminate their differences.

War is sufficiently terrible as at present carried on, and there needs no superadded calamity, under the sanction of ancient cruelty, to render it more terrible. Instead, therefore, of wandering into the wilds of antiquity, we must have recourse to the treaty, which is plain and explicit.

The first rule of construction is to resort to the words, they being used by the parties to express their meaning;  [**49]  if these are plain, we should be guided by them. The words are plain: (Art. 4.) "It is agreed that the creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted;" words as plain as language can make them. Where such general terms are used, if any restrictions were intended by one party to operate as exceptions, such restrictions ought to be mentioned, and ought not to be supposed. See Vattel on the interpretation of treaties, b. 2. c. 17. If there were, therefore, local laws existing, and within the knowledge of one of the parties, which were meant to operate as exceptions, they should have been mentioned. Should a different construction prevail, the party would take advantage of his own wrong; for if the words are so general as to include a case he means to exclude, he should be bound by the general words, or he would be benefited by his own deception.

If persons entering into contracts could avoid complying with the express terms of them under pretence of an implied reservation as to particular acts, it would open a door for endless altercation, instead of terminating differences,  [**50]  which ought to be the natural effects of agreements. A fortiori, ought such subterfuges to be allowed in this case where the parties have expressly stipulated to treat on the most liberal terms.

Neither side could mean to stipulate against illegal acts of individuals, such as unwarrantable combinations of debtors; therefore such proceedings could not be considered as infractions of the treaty, though we may presume the respective governments, in support of their own authority, would punish the aggressors. But any impediment that creditors should meet with, under colour of a law of the state, would be an infraction of the treaty, and was expressly guarded against; to construe it otherwise, this treaty does nothing.

It is plain the treaty does not extend, upon any known rule of construction, to the illegal acts, and if it does not either extend to acts imposed by law, it does nothing; for all impediments to the recovery of these debts must be unlawful impediments, or impediments imposed by law. It cannot extend to unlawful ones, and they say it does not to others; therefore it does nothing.

Is not this a bona fide debt? Was it not contracted before the treaty? Is not the [**51]  impediment opposed to its recovery created by a law of the state? These facts cannot be denied, and it follows that the case is included within the express words of the treaty.

To suppose it does not extend to any impediments then existing, but was meant to prevent others in future, would be derogatory to the honour of the United States, as well as contrary to the words of the treaty. It would be derogatory to their honour, for it would be supposing they had a design to act with duplicity; that is, notwithstanding in the outset, they profess to treat on terms of liberal equity and reciprocity, and to exclude partial advantages, and use words fully expressive of this intent; yet that they would have passed laws, after the treaty, to destroy or diminish debts due to British merchants, had they not been prevented by a subsequent clause in the treaty.

The words of the treaty are general; but to give it this partial construction would destroy this general effect plainly expressed. Had they meant no future laws should be made, and nothing more, they would have expressed it, and not have used such general and inapposite language to express such a meaning.

If the letter of the [**52]  4th article was less explicit than it is, the preamble would explain the meaning. There are to be no partial advantages, and there is to be liberal equity and reciprocity. Now there were no laws in England made during the war, or at any other time, to affect American debts. But if the British debts are to be destroyed notwithstanding the treaty, the reciprocity so candidly professed is plainly violated. Suppose all British debts had been paid into the respective state treasuries in paper money, (the contrary of which neither of the contracting parties could know,) then, on the principles of construction contended for on the other side, the treaty might have had the effect to compel British debtors to pay all claims to American creditors, and to leave the British creditors with a payment of one for forty. A construction which might have an effect so unjust, can certainly never be right, cannot be liberal or reciprocal; yet such it ought to be.

Saying that creditors should meet with no lawful impediments, certainly means that no such impediments should be of any effect. A law that might have been a lawful impediment to the recovery of antecedent debts, is by the treaty prevented [**53]  from having such consequence. The payment into the treasury under the law was, or was not a lawful impediment antecedent to the treaty; if it never was a lawful impediment, then it can have no effect. If it was ever a lawful impediment, then, by the express words of the treaty, it is removed. The act of April session, 1787, strengthens these observations. This law must be construed as if the words of the treaty were repeated in it; if so, it certainly includes all impediments.

2. The treaty should be construed to have some effect, with respect to debts, or it would not have mentioned them; and construing the treaty to have a future effect only, is unjust and absurd.

To construe the treaty to mean only that no future laws should be made as impediments to the recovery of British debts, is making it of no effect, unless we suppose that the states would have acted unjustly in making such laws.

By the law of nations as now established, debts are recoverable after a peace; therefore at least all debts not affected by any local laws of the particular states, were recoverable without the aid of a treaty, and to give it this effect only, is saying no more than would have been [**54]  said without it. It might as well be said that the treaty intended that no laws should be made to prevent British creditors from recovering their debts which might be contracted after the treaty, as to suppose any laws would be made after the treaty of peace, to prevent former debts being recovered according to the law of nations. But both being equally unjust, it could not be imagined that either would be attempted.

There was no occasion for a treaty to guard against the mischiefs, as there was a sufficient provision against both by the laws of nations. The treaty, therefore, was properly applicable to debts which would otherwise be affected by the local laws of the states, and any other construction would be nugatory. To have made future laws to prevent the payment of British debts after the treaty was made, would have been contrary to the law of nations, therefore unlawful; consequently, if such were the only laws intended to be guarded against, the language would have been more proper, had it said, "the creditors shall meet with no unlawful impediments to the recovery of their debts."

If debts are absolutely forfeited by a war, the act of 1780, enabling debtors to make [**55]  payments into the treasury, was needless, for the debtors were already discharged from payment, and this act, instead of being a benefit to them, was an injury, as it compelled them to make some payment, trifling as it was, and which, without this act, they need not have made.

On the same principles, all other British debtors are discharged who have made no payments into the treasury. For example, the position on the other side is this: A war extinguishes all debts due from the subjects of one belligerent power to those of another, the conclusion follows, that all debts due from the citizens of America to British subjects were extinguished; then what occasion was there for the act of 1780 to destroy that which had ceased to exist? If the position is right, no British creditor can recover any debt contracted before the peace. By the confiscation law debts are excepted; this shows the legislature had no idea that they were forfeited by the war.

It may be said that the above reasoning will apply to Great Britain as well as to America, and that as they had no law to prevent the payment of debts after a peace, it was thought they would have made them, or the preamble is of no [**56]  effect as to them. But to this it may be observed, that the British know that laws had been made in America to affect debts, therefore they would think they had a right to make laws to affect them after a peace, unless both countries were put on equal terms.

3. The treaty should be construed so as to avoid absurdity and injustice.

Suppose mutual debts subsisting between American and British subjects, the first indebted for goods sold him, and the latter for tobacco sold or consigned. The American pays paper into the treasury under the act of 1780, in discharge of his debt to the British subject, and insists on a full payment of the debt due to him; this certainly would be the height of injustice.

When two nations contract, they have in view the mutual obligations resulting from the law of nations; but if this is to be superseded by the local laws of one nation, the other must act in the dark, as they are not within its knowledge. Vattel, 177. The law of nations was introduced to avoid the force of local laws, for if local laws were to prevail in opposition to it, then there would be no decision, as the law of each country would be equally binding.

It is a principle [**57]  of the law of nations, that every thing, without which the matter agreed on cannot take place, is tacitly granted. By the treaty, creditors are to meet with no lawful impediment to the recovery of all debts before contracted; but there will be impediments to some recovery, if the act of 1780 is to remain in force as to these debts; therefore, under the rule, this act is tacitly as well as expressly done away by the treaty. Vattel, 207.

Objections. First, It is objected, the courts are bound by oath to determine according to the laws of the state; therefore, if the act of 1780 is contrary to the treaty, the judges are bound to determine according to the act.

Answer. Since the act of April session, 1787, this point seems to be immaterial, as the treaty is declared to be the supreme law within the state, and, therefore, the judges are obliged now, by oath, to determine according to the treaty, and the act of 1780 must give way to it. But if the act of 1787 had not been made, it would seem that the judges would have been bound to determine according to the treaty, notwithstanding the act of 1780.

By the articles of confederation, a power of making peace and war is vested [**58]  in the congress, and, therefore, what they agree on in this respect, cannot be controlled by any particular state. Laws made having such effect would be void, being contrary to the terms on which the union was founded.

If congress have a power to make peace, they must have a power of enforcing its stipulations; if not, it is giving them a power to make a contract (for a treaty of peace is nothing more) which, when made, shall bind nobody. Maryland cannot claim an exemption, for if it does not bind each federal state, whom does it bind? Certainly none of the United States; for all must be bound or none. And if not binding on America, it is not on Great Britain, for the obligation must be mutual, and if one power is not bound, there can be no obligation on the other. On this reasoning the treaty would be void.

The treaty was made by the supreme power in the United States, and with the concurrence of every particular state by a separate law of each state, vesting a power for that purpose in congress; therefore it is the same thing as if each particular state had been a party to the treaty, or had ratified it by the most solemn legislative acts. This antecedent power, vested [**59]  in congress by the states, is equally strong, if not stronger, than if they had ratified the treaty by express acts. Omnis ratihabitio mandatae aequiparatur.

The separate states could not, in this case, act without a head. They have chosen a head for this purpose; consequently each state must be bound by the acts of that head. When a treaty is made which contravenes the law of a particular state, either the treaty must supersede the law, or the law the treaty. But if the particular law supersedes the treaty, then no treaty can be made by congress, since no treaty can bind. Suppose such particular local laws were to occasion a breach with a foreign power, and the state who made and insisted on these laws was to be invaded by a foreign power, upon what ground could such state expect congress to declare war, if it denies its power to make peace. If congress in this case was obliged to declare war, it would be putting it in the power of any particular state eventually to declare war or peace. What treaty of peace was ever made merely declaring war to be at an end, without containing stipulations of some benefit to each contracting power.

If no treaty can rescind the effects of [**60]  an act of assembly of a particular state, then any state may dissolve the powers of congress as to making treaties. This would make us cease to be a nation; for no particular state is the nation, but the whole united together. This would also throw the power of making treaties into a particular state; for instance, the treaty will not be effectual unless particular states will consent to what will make it so. What cannot be done without the counsel of another, is entirely under his control. Perhaps it would not be practicable for congress to make peace without entering into stipulations contrary to the laws of some particular state, which must be exceedingly various. Those who treat would be obliged to know all the particular laws of every state, before they can tell what expressions in the treaty may affect them, and in that case all the states must be consulted.

Vattel says, if the sovereign has the right of treating and contracting with other states, he must have the necessary power to make a valid contract. This cannot be shaken by any fundamental law, otherwise it would be to forbid all contracts with other nations, or to deceive them. A nation with such a law ought never [**61]  to treat of its property. If it is obliged, it must renounce its fundamental law.

Public treaties can only be executed by sovereigns who contract in the name of the state. That a treaty for the recovery of debts in this case might be made, must be admitted. It is not opposed by any thing in the confederation; but no individual state could do it, not having the right of sovereignty. If the congress had no such power, it follows that no such treaty could be made.

Let us reverse the argument. Suppose acts of assembly of particular states were made during a peace, allowing the subjects of Great Britain, or those of any other nation, particular privileges, as to enter their ports and import any kind of goods duty free, or other acts of a similar nature. Suppose congress were to declare war against such nation, would it not rescind the benefits they might claim under such acts. But if no act of congress could affect the acts of assembly of particular states, these privileges would remain, notwithstanding a war. But surely a construction so destructive to the principles of the union, and the powers of congress to make war and peace, could never prevail. If acts of a particular state [**62]  may be rescinded by congress for the benefit of the United States, on a declaration of war, certainly particular acts may also be rescinded for their benefit, on a treaty of peace. The good of the whole must be the governing principle in each case, or how is the line to be drawn?

By the treaty, art. 6. no person is to suffer by reason of the part he took in the war. Yet by our treason act, and those of other states, they were subject to capital punishment. By an act of assembly no remittances are to be made to Great Britain. Neither of these acts are repealed otherwise than by the treaty. But if the treaty cannot rescind the acts of any state, they are still in force.

May not this distinction be made respecting the powers of congress, that where a particular state makes laws which can only affect its own citizens, congress cannot alter them by any treaty with a foreign nation; but where the laws relate to transactions of foreigners with their own citizens, then congress may destroy, modify, or regulate them by treaty. So that if the declaratory act of 1787 had not been made, yet the treaty would be effectual to give a recovery for these debts, but that act puts it out of [**63]  dispute.

Second Objection. The treaty operates as a repeal of the law of 1780, but it does not destroy acts done under it.

Answer. This admits the power of congress to rescind the laws of particular states on a treaty of peace, and, therefore, only brings it to a question of construction, whether the treaty, from the expressions and meaning of it, is to have one effect or the other. This, therefore, lets in the before-mentioned reasons, proving that the payments made under the act of 1780 were destroyed.

If the treaty is only to operate as a repeal, there was no occasion for the 4th article, respecting debts; for the 6th article was a sufficient provision against any future loss or damage. The 6th article will certainly operate as a repeal of the treason act, so far as it affects the conduct of persons during the late war. Also of the act for preventing remittances to Great Britain, even if the nature of the treaty was not a sufficient repeal. It would, therefore, certainly operate as a repeal of the act of 1780, otherwise different constructions would be put on the same words. The 4th article, therefore, respecting debts, must receive a more extensive construction,  [**64]  or it is useless.

Third Objection. If the treaty gives British creditors a right to recover all debts before contracted, yet such recovery must be from the United States, or from the particular states where the debtors resided and the payments were made.

Answer. Had this been the intent it would have been certainly so mentioned, and words which naturally lead to a different construction would not have been used. The obvious meaning of the term recovery, is a recovery in a court of law, and had a different acceptation been intended, it certainly would have been mentioned. If the United States collectively were to pay these debts, there would have been some mode pointed out from what fund they were to be paid. If each particular state was to pay its respective debts, then one might pay very considerably, and another nothing. This would be unequal. Is it to be supposed such points were to be left open to discussion, and that the creditors were to receive nothing till they were settled?

What compulsory means could the creditors of a foreign nation have against the public, in case of a refusal? It seems they are entitled to a recovery; the means of compelling it should be [**65]  therefore granted; but what means of compelling a payment could be used against the public? Where one nation stipulates to pay a sum of money to another, is there any mode of recovery but by a request, and, on refusal, to do itself justice by force?

Suppose a debt due to an American creditor by a British subject; must he resort to the British nation for payment? If not, there must be different constructions on the same words. If the public is to be resorted to, it must be by the debtors, and if they have any claim of equity from the whole circumstances of their case, relief may be afforded.

Was it ever known that where, on a treaty of peace, one nation agreed to pay another a certain sum, such words as these were used, "that they should not meet with any lawful impediment in recovering it." For this presupposes a probability of a refusal.

Suppose the British nation were to apply to congress or the states for payment, and on refusal make reprisals, should we not exclaim against such conduct, and say they ought, under the treaty, to have recourse to the debtors.

When an application to the public is meant, it is inserted as is done in the 5th article. If the public [**66]  were obliged to pay these claims, they would have been ascertained. How are disputes between British creditors and the states to be settled? Are their demands to be paid at all events? If not, who are to settle the quantum of the debts justly due? Had such been the idea there would have been some mode pointed out for the trial of disputed claims. This is easily done in the courts of judicature.

Fourth Objection. It will be a hardship for those who have paid into the treasury.

Answer. It will only be taking from British debtors a privilege they had beyond others, and reducing them to terms of equality. But if the effect were so, such are the terms of the treaty, and that alone is the guide.

The principle of the objection is, that if, during a war, particular benefits are given by law to a certain class of men, these benefits can never be destroyed by a treaty of peace, however the public interest may require it. The consequence might be, that the nation might be continually at war, and thus the whole be destroyed for the supposed benefit of part. Whereas there is no truer rule in politics, than that the interest of part should give way to that of the whole.

The debtors [**67]  by the law of 1780 had a privilege given them, which the states for the general good thought it proper to waive. The debtors, therefore, are not in a worse situation than if the law had not been made. But if they were, the good of the whole is the supreme law. Other persons who have received paper must submit to the loss; and the treaty only puts British debtors on the same footing with others who had none to pay.

Fifth Objection. That these debts were forfeited at common law, the creditors being enemies of the state, and that the defendant paid the state the sum of    l. with legal interest, on the 20th March, 1781, according to the condition, to the treasurer to whom the debts due to the state were payable, and obtained his receipt.

If they are forfeited at common law, the common law must give the rule. If there is such a rule, it is supposed to be grounded on one of two principles; either that when two nations are at war, the debts are immediately forfeited, or that the creditors are to be considered as alien enemies, and that debts due to them are forfeited.

The definition of an alien at common law is a man born out of the allegiance of the country. Unless he [**68]  is so born, he cannot be an alien at common law; he may be made so by legislative acts, but the plea alleges no such acts, and therefore is a plea at common law and not under any statute.

The above being the common law distinction of an alien, so it follows, that what the common law means by an alien enemy, is a person born under the allegiance of a country with whom his sovereign is at war. If, therefore, any effect of forfeiture could flow from the circumstance of a person being an alien enemy, yet the facts necessary at common law to make him so, cannot be so supplied.

The defendant says he paid the debt to the state; therefore it is a bar to them, and the state must be answerable. To this it is answered, their plea alleges a payment of so much sterling and current money, the amount of the debt; but the receipt proves no such thing, but a small part under the act of 1780; this is a variance. If a statute empowers a person to plead in a particular manner which he could not do at common law, it must be a plea under the statute. 1 Stra. 652. This is no payment at the common law.

An alien is a person born out of the allegiance of the country. There is no other definition [**69]  of an alien at common law, and he must be so the moment of his birth; and if he was not an alien immediately when born, he could never afterwards become so, on any principle of the common law, though the legislature may have a power to declare him one. The common law could never include a case not the object of any of its provisions, nor in any manner supposable; such as, for example, the dismemberment of an empire. It would be absurd for one country to institute laws with a view to affect its subjects under these circumstances.

If it is said the common law is adopted here, yet that does not alter the case, because this is not according to any common law principle, which only applies to the time of the birth. This was so understood by the legislature when they passed the act declaring what persons should be aliens; they neither thought they were aliens at common law, nor that their being declared so confiscated their debts. But to oppose this act, would only be opposing one act instead of another, even if it created confiscation.

But if they are to be considered as aliens at common law, and the debts are forfeited on that account, the treaty leaves the creditor at large,  [**70]  and any such impediment is removed by the treaty.

It is said, that at common law, they being enemies, this debt was forfeited to the state, and that they paid it to the treasurer, who was empowered to receive it. They must prove, 1st. That it was absolutely forfeited at common law; 2d. That they paid it to the treasurer for the state; 3d. That he was empowered to receive it for the state; 4th. It must also appear to the court, that the debt was so absolutely forfeited to the state, that a peace would entitle the creditor to sue for it; and further, that the treaty gives him no right.

Supposing the common law was ever applicable, yet at this time, debts are not so forfeited by a man's becoming an enemy, but that he may sue for them after a peace, or receive payment, which will be a good discharge to the debtor against any claims from the state.

The plea of alien enemy can never be pleaded, unless the party is one at the time the action is commenced, for the disability arises from the incapacity of the person to sue; which incapacity is grounded on the policy of not suffering money to be carried into an enemy's country. But neither principle applies when the war is ended.  [**71]  Cessante causa, cessat effectus. Co. Litt. 129. 2 Inst. 58.

If a Frenchman comes into England with goods before war is proclaimed, neither his person nor his goods shall be seized; otherwise if he comes after. Jenk. 201. Hale says, that an enemy coming in after the war begins, without the king's license or safe conduct, cannot claim the privilege allowed by magna charta (c. 30.) to those who were here before the beginning of the war. 1 Hale, 94, 95. The statute of magna charta is a license and safe conduct to aliens coming before the war; but if their debts are to be placed in the same situation, though contracted whilst they had this safe conduct, as those enemies coming after a war, then the property of the one is more protected than that of the other. If their property is not, the same reason applies to their persons; it is therefore needless for Hale, or any author, to talk of distinctions between them.

Martin, (Attorney-General,) for the appellant. By war, a nation acquires a right to seize upon, take possession of, and appropriate to its use, the property of the enemy, whether belonging to the public or the individuals; and the right to seize upon, and appropriate the [**72]  debts due to the enemy, is the same as the right to other property. Vattel, b. 3. c. 13. s. 193, 194, 195.

Each individual who seizes upon the property of an enemy, or gets it into his power, in time of war, as to the enemy himself, acquires a right in such property; how far he shall have a right as to the nation of which he is a subject, depends upon the laws and regulations made by that nation. Upon the same principle, the individual who owes money to an enemy, acquires the property in that money as far as relates to the creditor, it belonging to an enemy and being in the debtor's possession and power. The common law of England recognises the same principle as the law of nations; that by war, the property of an enemy's goods is lost to him as soon as got into the possession of his enemy; and that the right to, and interest in, a debtor is lost to the creditor, if such creditor is an alien enemy. Hence, in an action brought to recover a debt, the plea of alien enemy is not merely dilatory, but may be pleaded in bar.

I admit that among the European commercial nations, the strictness of the law of nations, particularly respecting debts, in some measure is relaxed, partly founded [**73]  on stipulations in treaties, and partly on commercial principles; and that among them it is now by a kind of common consent established, that if the nation doth not by some act interfere after peace, the debts shall be paid: But the principle has never been controverted, even among the most commercial and polished nations, that the debts of the enemy (except public funds and debts due from the public to the enemy) may be seized upon, confiscated and appropriated. In fact, that a nation has no absolute power over all debts due from their subjects to an enemy, and may exercise it when, and in what manner it pleases. In the exercise of this power, no subject of the enemy, however injured, receives injustice, or has a right to complain, except against that government of which he is a subject, and by whose conduct he is exposed to the injury; and it is only from his own government that he is entitled to claim compensation for his losses, if he has a claim for compensation anywhere. The state of Maryland, upon these principles, had a right to exercise its power over the debts due from its citizens to the British subjects. War gave to the state a right to those debts; the state might have [**74]  seized upon the whole, or any part of the debt of the British creditor, as well as upon his other property. It might by its acts have cancelled them entirely in the hands of the debtor; it might have brought them all into the treasury; or it might have freed the debtor from the debt, on paying a certain portion of it, or giving any equivalent for it; the state having the absolute right in, and power over, those debts, might modify the exercise of that right and power as it pleased.

This right and power the state did exercise in certain cases; by its laws it authorized the debtor to bring in paper bills of credit into the treasury, to the amount of the British debt, for certain terms, and whenever the terms were complied with, declared it should be a payment and discharge of the debts to the British creditor. The state by this did no injustice; the state exercised an undoubted right.

To the British creditor the state owes no compensation; it is for that government, the connection with which caused his misfortunes, that the British creditor is only entitled to redress, as I have before stated.

The debtor did no injustice in accepting the terms of the law; none to the British [**75]  creditor, for the reasons before; none to the public, unless accepting the benefit of a law passed in his favour was an act of injustice.

But the particular nature of the cases where the state did exercise its right over the debts due to its enemy, was such that every candid mind must admit it was not only proper, but that it would have been cruel and unjust in the state had it not been done. It was necessary to prevent many worthy and well deserving citizens from ruin, and from being ruined for their observance of the laws; and ruined only to benefit our enemies.

As far, then, as relates to debts paid into the treasury, according to law, the state has actually exercised its right over the debt which was due to the enemy; which right is conceded by all, and therefore it doth not depend on the question, whether debts may, by the law of nations as used by certain nations, be recovered after peace, no positive acts having been done during the war to prevent it. The question will therefore be, whether, in consequence of the treaty, the British creditors can recover in those cases. The citizens who paid made their payments long before the treaty had existence; they acted under [**76]  the sanction and authority of a law of this state, founded in wisdom and justice to its own citizens, and free from injustice to any. They had acquired rights under the existing law of the state. They had discharged the debts. The relation of debtor and creditor had ceased between them and their former British creditors, as entirely and bona fide, even according to the law of nations, as if the debt had never existed, or had been actually paid before the war.

Can, then, the treaty operate to destroy the acts which were done before its existence; to take away the rights of individuals acquired under our laws, and which vested in them during the continuance of the laws? Had congress such power? I think, if necessary, it might be questioned. How is the treaty to operate for this purpose? It is said, either in its own nature, or in consequence of the law of our state, declaring it to be the supreme law of the land, it operates as a repeal of the former act. Admit it to be so; the repeal of a law cannot destroy acts done and rights acquired under the law during its existence, and before its repeal; and though it is declared to be the supreme law, still, as far as that declaration goes,  [**77]  it is but a law; nor doth that declaration cause it to be the supreme law, or any law, before it existed as a treaty. The repeal of a law prevents rights being afterwards acquired under the law repealed, but doth not annul those acquired previously. The contrary construction would be replete with iniquity and injustice.

Congress had no rightful power to infringe or annul any law of any state in the union, or to interfere with the right of any individual acquired under these laws. The most they could do rightfully, was to stipulate against acts being done by the states after the ratification of the treaty, nor would this be binding on the states in any other manner than as in ratifying the treaty they would accede to the terms; and if they refused they would be deprived of the benefit of the treaty, and would be guilty of a breach of the treaty, by doing in future the acts by the treaty prohibited. But every person might, at a moment's view of the question, perceive an infinite difference between stipulating against future acts being done, (which acts being future, are in the power of the states not to do, and which stipulation still doth not restrain them, unless they think the [**78]  peace ought, on those terms, to be accepted,) and destroying acts already done, and taking away rights of individuals already vested.

The British commissioners did not treat with ours as being the delegates of an absolute monarch; they well knew our government, its nature and constitution. They knew our commissioners were the representatives of the head of confederated republics, tied down and restrained in such a manner, that this head had no power or control over the laws of the several states, or over the rights acquired under those laws.

But it is said congress had a power to have given up by the treaty a particular part of our territory if it had been necessary; that a government may, for the sake of peace, abandon cities, provinces, individuals and their rights. Whether this can be rightfully done by the head of a nation, so as to be binding on the nation, except where the head of the nation is an absolute and unlimited monarch; and whether congress, with its confined and limited powers, could do this is very doubtful. See on this subject, Vattel, b. 1. c. 21.

But even in that case it seems, I think, pretty well established, that in fact, no right is thereby given [**79]  to the conqueror over those abandoned for the public good; they are only left to the power of the conqueror; and those so abandoned, if they are strong enough themselves, or can procure assistance, have a right to defend themselves against the exercise over them of that power of the conqueror to which their own nation hath, from necessity abandoned them. Vattel, b. 1. c. 21. s. 264.

But the advocates for the British subjects wish to carry the doctrine much farther; they insist that rights are conferred thereby to the conqueror, and that our courts of justice are to enforce those rights.

But in every case where the rights of individuals are sacrificed by a treaty, it is held that the state who thus sacrifices them is bound to compensate; nor can it be admitted except from absolute necessity, where being in the power of a conqueror who dictates the terms, peace can only be thereby procured. Was that the situation of the United States, and was the treaty made on those principles? Admit this to be the case, and that Great Britain, giving law in the treaty, we were compelled to sacrifice the rights of individuals to obtain peace, let it be remembered that is a rule that, in case [**80]  of doubt, the interpretation goes against him who gives law in the treaty. Vattel, b. 4. c. 3. s. 32.

That it was not the intention of the parties contracting to provide for the payment of such debts, over which the state governments had exercised their right and power, so as to annual those acts, or to destroy the rights acquired, I think it must be clear. It is evident from the face of the treaty, that all parties considered power was wanting for that purpose, and, therefore, as to every thing which had been done by the state, which was complained of on the part of Great Britain, the 5th article was excepted. And even the 6th article, providing against acts being done in future by the state governments, from the nature of the subject, and from the clear working of it, was not to have operation from the date of the treaty, even on its arrival in America, but only from the ratification of the treaty; since it expressly supposes persons to be deprived of their liberty till that time, and at that time under prosecution.

The very case now in question is clearly within the provision of the 5th article, which says, that congress shall earnestly recommend to the legislatures of [**81]  the several states to provide for the restitution of all estates, rights and properties (which surely include debts) which have been confiscated. All those debts which had been discharged under the law by payments into the treasury, were as much confiscated as any other property. For though the state did not confiscate debts generally, yet as to all those cases where, under the law, payments were made into the treasury, it was a complete confiscation, in the strictest sense of the word.

Let us examine the 4th article, on which the question turns.

The person who wishes to avail himself of that article, must have been a creditor at the time when the treaty was made; for the words are present, and not that those who were or have been creditors, &c.

The debts also, on which the treaty is to operate, must have been existing at the time of the treaty; for if you do not give it that construction, all the debts contracted theretofore, although paid long before the commencement of the war, by the treaty must be paid over. They must not only be subsisting debts, but they are restricted to those which had been fairly and honestly contracted, and fairly and honestly due, and not [**82]  set up or kept on foot fraudulently and improperly, for the words bona fide are restrictive, and must have some such import. And so far from the words bona fide being of advantage to the construction of the treaty, advocated for the British subjects, I think it is the reverse; since, as far as it can have operation, it is certainly restrictive, the word debts being more comprehensive than bona fide debts, which confines it to a particular kind of debts. With this construction of the article let us compare the cases in question.

In the case of payment into the treasury, according to the act: from that moment, according to the law of nations, as well as the law of this state, the British subject to whom the debt had been once due, ceased to be the creditor of him who had thus paid the money. As I have before observed, the relation of creditor and debtor was as totally done away as if there had been no debt ever due; from that moment, as to the former creditor and debtor, the debt was paid and discharged as absolutely, and no more subsisted between them, than if the debt had been paid before the war. And this payment was not only agreeable to our own law, but according to the most [**83]  approved and liberal law of nations, as complete, as satisfactory, as honourable, and as bona fide as if it had been paid before the war to the British subject himself.

The debt, therefore, which, according to the law of nations, was bona fide discharged and paid, could not possibly be a bona fide debt, actually subsisting for the treaty to operate on, either by the construction of the law of nations, or of common sense. The cases now in controversy are clearly not within the words of the treaty, since the claimants were not creditors at the time when the treaty was made; and since what is now claimed was not a bona fide debt at that time, nor was it a debt of any kind, either in equity, in conscience, or in honour, and those who argue differently, totally mistake the case, since the state had antecedently fairly and honourably exercised over it the rights which the laws of nations gave and sanctioned to the state, and not to have used which would, in these cases, have been the height of injustice and cruelty to many of her own citizens.

If not within the letter, it shall not be included by construction; because a construction shall not be given which would make the parties [**84]  contract beyond the powers constitutionally given to them, and because a construction shall not be given to a treaty to make it disannul laws, take away rights, and injure individuals.

Besides, as before observed, the treaty interfering with, and taking away, rights vested in individuals, and abandoning them for the public good, can only be justified on the principle of state necessity, and being in the power of the opposite nation, who gives the law to the other; and in treaties so made, the construction, in all doubtful cases, is to be made against the party who gave the law in making the treaty.

It is also a principle that all things not mentioned and particularly provided for in a treaty, are to remain in the same state as they were at the instant of the treaty, and any change in that state, meant to be made, requires an express specification. And every thing in a treaty that introduces any change in the state of things, from what they had been before or at the time of the treaty, is considered as odious. Vattel, b. 4. c. 2. s. 21.

Whatever rights have been acquired during war, can only be left, as far as they are clearly given up: and, consequently, all such clauses,  [**85]  giving up rights, ought to be taken in the strictest sense. Vattel, b. 2. c. 17. s. 304, 305.

The cession of a right made to a conqueror to obtain peace, is interpreted in its most confined sense; principles which apply directly against the construction given by the advocates of the British subjects, who wish to extend the construction of the treaty to debts which had been paid and cancelled by our laws, and by the law of nations; debts over which the state had exercised its power. Id. s. 308.

Objection. If our construction is right, it is said the article is nugatory, because, by the law of nations, all debts over which the state has not exercised its right during the war, after peace belong again to the former creditors, and may be recovered.

Admit the clause to have no other construction or use, yet it might not be proper.

This privilege to the original creditor is considered rather a relaxation of the former law of nations, partly introduced by stipulations in former treaties, and partly from commercial principles among commercial nations. It is rather a usage of certain nations than a law of nations generally, and it is not recognised by the general principles [**86]  of the common law of England. The case cited from Parker's Reports is expressly stated to have turned generally on the treaty. America had but just taken her rank among nations. To prevent disputes it was more proper to insert an express clause, in a case which might not be thought clear, than to rest it upon what should be the sentiments afterwards of the contracting parties with regard to the law of nations. Claims only declaratory are not unusual both in laws and treaties.

But there is a clear, proper and pertinent construction to the clause, which it may have. A provision necessary and proper is thereby actually made independent of the claims now in question. It was notorious that there were large sums due from the citizens, not only of Maryland, but also of the other states, to the British subects, over which the states had not exercised the rights of war.

It was also known that most of the states, if not all, had at that time paper money in circulation, and were in the habit of emitting paper. The probability was, (and that has been the case,) that after peace the paper money would still be a circulating currency of the state, and that it would not be of the value of [**87]  sterling money; that consequently after the peace, when British creditors sued, (without a provision to the contrary,) they would be obliged to receive paper money in payment, and thereby be deprived of a part of the value of their debts; to prevent this, the 4th article was agreed to, and the words clearly point out what they feared, and what they meant to guard against; they feared the debts would be paid off at less than their real value, and in a paper currency; they therefore stipulate that there shall be no legal impediment to the recovery of the full value, and in sterling money; but this is tied up to the case of bona fide debts, thereby clearly excluding the idea now advocated, that it should extend to debts which were paid and cancelled by act previously done, and which, therefore, could not on any principle be said bona fide existing. The payments having been made in depreciated paper, cannot alter the legality or the equity of the question. The state having an absolute power over the debt, did no injustice to the former British creditor by permitting paper to be paid and every person who under the law paid paper, had been obliged by law to receive paper. The state, therefore,  [**88]  acted fully and consientiously in supposing the debtor to pay to the treasury the same kind of money it had compelled him to receive for sterling and specie debts.

As to the question of interest of such debts as the treaty operates on, I hold clearly that the original creditor, though now entitled to the debt, yet he cannot recover interest during the war. Interest is the usufruct of money, and where, after peace, the property reverts to the original owner, the usufruct or products which became due, or were received during the war, are not to be accounted for according to the law of nations. Vattel, b. 4. c. 3. s. 30.

As to the objection that this is different from the usual case of war between two different nations, because we were formerly, and when the debts were contracted, subjects of the same kingdom, Vattel, b. 3. c. 13. s. 292, 293, 294 and 295. proves that there is no justice in the distinction. That a civil war breaks the bonds of society and government, or at least suspends their force and effect, produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. That these two parties are in the case of two nations [**89]  at war. That the common laws of war are to be observed on both sides. That while subjects who take arms against their sovereign acknowledge his authority, the effects of war as to the acquisition of property do not take place; but when they cease to acknowledge the authority of the sovereign, and the nation is divided into two parts, absolutely independent, and acknowledging no common superior, the state is dissolved, and the war betwixt the two parties in every respect is the same with that of a public war between two different nations.

The same principles which justify seizing and confiscating the property of enemies, in a war between different nations, justify in the present case.

If government oppresses its subjects, or any part of them, and violates its compact towards them, these so oppressed have a right to resist; and if necessary have a right to resist by arms. If government will persist in the oppression, the citizens who are so oppressed have a right to withdraw themselves from their old government, declare themselves independent, and establish a government for themselves; their former fellows have their option either to join them, or to remain subjects of, and [**90]  connected with, their old government; if they join the new government, they enjoy all the benefits arising therefrom; if they elect to remain subjects to the old government, they must also expose themselves to the inconveniences arising therefrom; by so doing, they become parties to the injustice and oppression of that government they have elected to continue subjects to, and, as members of that government, become personally responsible for the conduct of that corporate body of which they constitute a part, and it is on this principle that the property of particular individuals of any nation, in time of war, may be seized and confiscated by the other nation with whom they are at war; and it is as fixed a principle, and as well known, that if subjects of the same nation deal together, enter into contracts, and through the oppression of the government a civil war should take place, in consequence of which a certain portion of the subjects should become independent, and set up a new government, while any portion should adhere to their old, debts due from the one to the other would be liable to confiscation, as that such debts would be so liable were they contracted between subjects of [**91]  different nations. The principles of self preservation as much applies in the one case as the other, and the laws of nature equally sanction it in the one case as in the other. There can be no possible question but if A. and B., both being in a state of nature, entered into contracts, by which one was indebted to the other, and afterwards became members of different governments, between which war should take place, the debt between A. and B. would be precisely in the same situation, and as liable to confiscation, as any other debt subsisting between any other subjects of the warring nation. The contrary idea is absurd and unsupported by reason or authority. It is not the dissolution of governments, or the government being formed into two or more, that has cancelled these debts; but a war having subsisted between two governments and the rights which are acquired by war, together with the exercise of those rights by the state, though the state did not confiscate debts universally, and excepted them from the general act of confiscation; yet all debts which come within the present question, and which were paid into the treasury, were to all intents and purposes as between the original [**92]  creditor and debtor confiscated; they were carried into the treasury, not to be taken out by the British creditor, but subject to the direction of the assembly; they were answerable, it is true, for debts owed by the British creditor to any subject of the state, because the state in all cases made itself answerable to its own subjects, who were creditors to the amount of the property confiscated, which belonged to the British debtor.

Suppose the legislature had given the construction to the treaty contended for by the opposite counsel, it is no rule for the judges; but it is absolutely denied that ever they have given it that construction.

By former treaties between France, Spain and Great Britain, the principle had been before recognised, that debts when peace took place should be paid, unless the government during the war had exercised its right over the debts: Also, France, Spain, &c. had no depreciated paper currency which was a legal tender, or might probably be made so. At the time of the treaty, some of the states had tender laws in force, and some of them have continued them since, and all of them might have done so, and but for the treaty, the British creditor (where [**93]  his debt had not been paid into the treasury) would have been obliged, if he sued in our courts, to have taken payment in the same kind of money as our citizens, and would thereby have had no cause to complain, as he would be put on a footing with our citizens.

Suppose in the case of Fabius and Antiochus, the ships had been sawed in two before the treaty, and this had been well known to both parties, I presume the Romans would not have been obliged to join them together again. I know that in the case in Georgia, no determination was given that in the least can affect the present question, for I had it from Judge Iredell. In that case the debtor never had paid it into the treasury in Georgia, or done those acts which the law would have authorized him to have done, and was exactly in the case of a man in this state, who might have paid into the treasury, but did not do it. Judge Iredell told me the decision was on the principle that no act had been done under the law while it existed, that is, antecedent to the operation of the treaty. I know no determination of congress, nor ever heard of any, nor can conceive how they could make any determination on the subject.

That the [**94]  treaty was not intended to infringe any law of any of the states in such a manner as to do away any acts which had taken place under them, or destroy any rights acquired, and that it was so understood, or conceived by the British themselves, I refer the judges to Jefferson's correspondence with the British minister.

The honourable the judges will easily perceive that many of these observations are desultory in answer to particular arguments or objections urged by the counsel of the defendants in error.

The state had an undoubted right to exercise the jurisdiction over the debts in any manner it thought proper; by such tender the law expressly declares the debt shall be extinguished: it therefore could not be an existing debt at the time of the treaty for the treaty to operate on.

But suppose, for argument sake, that the treaty has such an operation that the creditors whose debts were paid into the treasury are to recover their full value, the consequence would be, not that the former debtor would be obliged to pay them, but that they must be paid by the state: nothing can be clearer. No principle of law is more fully established than that the debtor who pays his debt [**95]  to any person by law entitled, or authorized to receive it, is thereby for ever discharged of the debt, and such receiver, from that time, remains answerable for the debts whenever in point of law he has an interest, and is entitled to demand it. Nor can it make an atom of difference whether the authority under which the payment it made is derived from the creditor himself, or flows from an act of a legislature having competent powers on the subject.

When, therefore, these debtors paid the debts into the treasury, they became for ever discharged. The state was the receiver, answerable over to any person who legally should be interested in the debt, and entitled to receive it. If, then, therefore, the debt subsists now under the treaty, it can only subsist between the original creditors and the state to which the debtors legally made the payment. This also would be infinitely most reasonable, if these debts are again to be paid, (but which I totally disavow,) because that payment being a part of the price of peace, the community at large, who receive the boon, ought to pay the price, and not desire that a few individuals should be sacrificed for the common benefit.

Since I [**96]  wrote the foregoing, I have seen the newspapers' report of the action in which Powel Brailsford, &c. were interested. In the circuit court of Georgia, the question was between the British creditor and the debtor who had not paid the debt to the original creditor, the state of Georgia, or any one else. And, as I observed before, Mr. Iredell expressly told me, the court gave judgment against the defendant because he had not made the payment under the law, while it was in force.

The state of Georgia then filed a bill to enjoin the payment under the judgment, and to obtain a decree for the payment to the state. But the court determined, as the state of Georgia had not confiscated, but only sequestrated the debt, the state since the treaty could not be entitled to it; and as the defendant had not paid it to the state, of course he was obliged to pay it to his creditors. But there is no point better established than that, where a state only sequesters debts, there, if the debtor pays to the state under the act of sequestration, he is for ever discharged, and after peace it is the state which must account for the debts received under the act of sequestration to the original creditors.  [**97]  

Cap. 50. Nov. sess. 1786, is the case alluded to, as decided by the assembly. But the assembly proceeded upon no such principle as has been attributed to them. I have ever understood that act was passed in consequence of an agreement made by Mr. Chase with Mr. Hanbury, and the object was to facilitate the obtaining the bank stock.

Cooke, in reply. The proposition of the attorney-general is denied, to wit, that each individual acquires a right as against an enemy himself, to retain the debt due from him. Such a doctrine is directly repugnant to Grot. 700. Park. 267. Vattel, b. 3. c. 5. s. 77. which declare that peace restores the right of action. Nor is the plea of alienage said in any book of authority to be more than a temporary bar.

The law of nations, as now practised, is admitted. As we have commenced an independent nation of this period, we must conform to this law, if we expect to be on an equal footing and consideration with other nations.

Whatever right the state might have must be subject to the control of the general government; and the question is not, whether the state might have confiscated in part, or the whole; but whether they did do so, and if they [**98]  did, whether the treaty of peace has undone this act, and restored the right of action. The state never did confiscate, it only gave a power to plead the deposit in the treasury a payment, but the peace has rendered that power nugatory.

If the relation between debtor and creditor ceased by the payment into the treasury, it had equally ceased, according to the attorney-general's principles, upon the commencement of the war, and, therefore, unless the peace revived that relation, it did nothing; for if the state had made no law, the attorney alleges the debtor might retain as against his creditor. If it was the intention of the treaty to destroy the acts which were done before its existence, the court are bound to give it that construction, and, therefore, it is a mere question of construction; for it could as well relinquish this act as any other advantage whatever. The treaty does not operate merely as a repeal of the law, but has operative words, and it was the intent to restore the right to all bona fide debts heretofore contracted. The treaty does not abandon this state, but as we are parties to the treaty, benefited by it in other respects, are we not bound to fulfil it in [**99]  this particular?

Whether the state, which sacrifices the rights of private individuals, is bound to compensate them, is a question between the state and such individuals; plaintiff has nothing to do with it.

It is not contended that Great Britain gave the law in this treaty. The contrary is admitted and well known, and, therefore, the attorney-general's observation on that point militates against himself.

The attorney-general's observation that it was not the intention, by the treaty, to provide for the payment of debts over which the states had exercised their power, will be found to be of no effect if the words of the treaty are attended to; for as to this subject they speak positively, "there shall be no impediment," &c. but as to other subjects, they only provide that the congress shall recommend to the respective states to revise, &c. The fifth article does not extend to the case of debts, because debts were expressly excepted from confiscation.

The attorney-general says, the person must be a creditor at the time the treaty was made, to derive any benefit under the 4th article.

This is quibbling on terms, and reprehended by Vattel. What was the intent [**100]  of the contracting parties? Could the British commissioners, or any man in England, consider the deposit in the treasury as a payment? But even this construction will not serve his purpose. The debts did exist; they were not confiscated and extinguished, but only a right was given to plead this deposit in our courts in bar to a recovery. Suppose a debtor had gone to England after his deposit, could the debt be said to have been paid if the creditor had sued him there; and yet a payment or extinguishment in one place would be so everywhere.

The attorney-general insists on the uti possidetis, and that an express specification is necessary; but the plaintiff contends there is the express specification in this instance.

The attorney-general admits that whatever rights have been acquired, can only be lost as far as they are clearly given up; but he can show no part of the treaty that clearly gives up these debts, but on the contrary, the British commissioners stipulate for the recovery of them in our own courts, and if nothing had been said about them, the creditor might recover them, if he could get possession of the property or person of the debtor in any other country, and [**101]  at any future period whatever.

The attorney-general alleges that the treaty might have a construction applicable to paper money, circulating at the time of the peace; but paper currency was not a tender at the time of the making the peace, nor for a long time before; and as to what were intended to be described by bona fide debts, there can be no doubt that all debts existed in conscience that had not been paid according to the original contract of the parties, unless it be in such instances where the creditors themselves, or by their agents, had consented to receive paper or any other thing in discharge. In such cases an extinguishment by the act of the party for a moment would be so for ever.

To give the treaty the construction that is contended for by the defendants, would be refining upon the legal import of the words, to destroy that reciprocal benefit that both parties are entitled to, and give it an operation repugnant to justice and equity.

Suppose the treaty to have said nothing on the subject, and that the act of assembly of 1780 had never been made, would not the right of action be restored by the peace? This shows that the act of assembly is the only impediment,  [**102]  and that the treaty, if it does not relate to that, can relate to nothing.

The treaty made with Great Britain and the United Provinces has no clause to cover the subsisting debts between their respective subjects. But it is said former treaties were the basis of this, in which such provisions were made. But I have examined all the treaties that ever existed between Great Britain and Holland, and there are no such clauses. Nor is there in any treaty between Great Britain and France, but they provide only for the opening of the courts, and that justice shall take place according to the laws of the respective countries. I now lodge two volumes of these treaties for the inspection of the court. To say that the treaty only provides against acts of the legislature of other states making paper money a tender, and also against any future law of this state, is giving the words only one half their operation; for they certainly comprehend all the laws then existing, as well as any that should thereafter be made; and is not unlike the construction put upon a treaty made between the Romans and Antiochus, in which the former stipulated to give up half the ships they had taken, and then sawed [**103]  them in two, by which they rendered the provision wholly useless.  

OPINION:

 [*23]  In the Court of Appeals

 [*83]  At June term, 1795, the court of appeals reversed the judgment of the general court. In all the cases where payments had been made into the treasury under the act of 1780, c. 5. the court of appeals decided that the payments were good and valid, and reversed all the judgments contrary to this, in the general court. Some of the cases were carried up to the supreme court of the United States. See Dallas's Reports.  

12 of 20 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.  

13 of 20 DOCUMENTS 

Oliver and Thompson against Heap and Allen.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 477; 1790 Md. LEXIS 14 

May, 1790, Decided 

DISPOSITION:
 [**1]  Affirmed.  

COUNSEL:
Smith and Robinson, for the appellants.

Martin (Attorney-General) and Hollingsworth, for the appellee.  

OPINION:

 [*477]  THIS was an action of debt on an award brought in Baltimore County Court.
By the bill of exceptions, taken at the trial in the County Court, it appears the plaintiff's counsel produced in evidence 

 [*478]  the following award, viz. "We, the subscribers, having been mutually chosen by Messrs. Oliver and Thompson, and Messrs. Heap and Allen, to settle and determine a dispute subsisting between them relative to returns for a shipment of flour made by the latter in the ship Hero, owned by the former, and consigned to Mr. Hugh Thompson, partner in the house; having carefully examined the different papers, and heard the allegations of both parties, do award and determine, that the rum shipped on board the said ship Hero was contrary to the order of Heap and Allen; and had they at once refused to take it on their account, then it must have been at the risk of Oliver and Thompson; but as it appears to us, from the affidavit of Mr. Glass, who waited on Mr. Heap by order of Mr. Oliver, prior [**2]  to any insurance being effected on the vessel or cargo in this place, and received for answer, that they, Heap and Allen, did not know whether they would take the rum or not; which was by no means decisive, and thereby Messrs. Oliver and Thompson were precluded from making insurance on account of the shipment. We are therefore clearly of opinion, that the said sixteen hogsheads of rum should be considered as the property of Heap and Allen, and on their account and risk. And it further appears to us, from a statement of the settlement of loss by the underwriters in Philadelphia, which has been produced, that the said rum is subject to a partial and general average loss, amounting to 39l. 2s. 7 1-2d. per cent.; which on 235l. 5s. 3d. cost of rum, amounts to 92l. 4s. 8d.; from which deducting a balance due Heap and Allen, agreeable to their statement, of 38l. 1s. 4d. they remain in debt to Messrs. Oliver and Thompson 58l. 3s. 4d. current money of Maryland." Which award was signed by the arbitrators.
Thereupon the defendant's counsel interposed, and prayed the direction of the Court to the Jury, that, according to the state of facts [**3]  contained in the said award, the rum was not, in contemplation of law, at any time the property of the 

 [*479]  said Heap and Allen, and not shipped at their risk; and, therefore, as the arbitrators have mistaken the inference of law, that the said award is void. The Court accordingly declared their opinion, that the said award was void, and gave their direction to the Jury as prayed.
The defendant's counsel excepted. And on appeal to the General Court, the judgment of the County Court was affirmed.  

14 of 20 DOCUMENTS 

James Clarke's Lessee against Philip Hall.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 378; 1789 Md. LEXIS 8 

May, 1789, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Elizabeth's Diligence, lying in Baltimore County.

It appears by the bill of exceptions taken at the trial, that the defendant, to prove the issue on his part, and to make title to the land in question, produced in evidence to the jury, the will of John Frazier. And the plaintiff offered to prove, by parol evidence, that one of the three subscribing witnesses to the will was a convict, and transported into the province of Maryland in the year 1750, from Great Britain, agreeably to certain statutes for the transportation of felons.  

COUNSEL:
Martin, Chase and Smith, for plaintiff.

Potts, Cooke and I. T. Chase, for defendant.

Cooke, for defendant. A record is of so high a nature that it must prove itself. 3 Bl. Comm. 331. 12 Vin. 131. s. 6. Cowp. 3. The conviction must be proved by the record, and cites the case of The Lord Proprietary v. Widdon, (1757,) in which it was decided that there must be a record of the convct on.

Chase, for defendant. It has been often determined in this state that a record was necessary to prove the conviction. In the case of The State against Ridgely, in the General Court, at May term, 1785, this point was [**2]  determined. In the case of Henry Widden, who broke open Brice's store about thirty years ago, Mr. Brice sent to England to procure a copy of the conviction of the person who was a witness against him. It was defective, and the evidence was rejected. The plaintiff has had time to procure a record of conviction, and having failed to do so, he cannot resort to inferior testimony. How could the testator know of the conviction? There are offences in England which subject the offender to the punishment of transportation, and which does not take away credibility, as under the act of parliament prohibiting the exportation of wool.

Martin, (Attorney-General,) for plaintiff. In the case of Driver and Lee, (April term, 1760,) the Provincial Court decided, that parol evidence of the confession of a witness that he had been a convict was sufficient. All persons punished with the pains annexed to felony are disqualified from being witnesses. All indictments for transportable offences, charge with felony under the act of 1751, c. 11., and there is no question about the crime the offender has been convicted of.

Chase, contra, cited certain statutes which direct the punishment of transportation [**3]  for the repetition of offences not felonious.  

JUDGES:
HANSON and GOLDSBOROUGH.  

OPINIONBY:
HANSON; GOLDSBOROUGH 

OPINION:

 [*380]  The Court (HANSON and GOLDSBOROUGH) were of opinion that such parol evidence was admissible to prove that the same witness was a convict and transported as aforesaid; but inasmuch as before and during the year 1750 there were offences not amounting to felony, or rendering a person thereof convicted, infamous, for which, by the statutes of Great Britain then subsisting, offenders might be transported from Great Britain to the then British colonies, in the same manner as felons are directed to be transported there to serve for a term of years. The Court were further of opinion, that it was incumbent on the plaintiff, in order to prove the incompetency of the said witness, to prove by record or other evidence, that he was transported for some offence made felony or infamous by the common law of England, or by some statute of Great Britain, and the Court being of opinion that the parol evidence offered was admissible, the defendant excepted.
The plaintiff being called made default. Judgment of non pros.  

15 of 20 DOCUMENTS 

Roger Boyce's Administrator against Samuel Young's Executrix.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 84; 1791 Md. LEXIS 2 

May, 1791, Decided 

PRIOR HISTORY:
 [**1]   CERTIORARI to remove a record on a scire facias upon a judgment in Baltimore county court.

The pleas were, payment, and nul tiel record; general replications and issues joined. Verdict for the plaintiff, and the following point was saved, at October term, 1790, for the opinion of the court, viz:

The verdict of the jury, if given against the defendant, to be subject to the opinion of the court, whether payment to the deputy sheriff on a capias ad satisfaciendum, is good evidence to support the defendant's plea, a default against the sheriff having been first entered.  

DISPOSITION:
Judgment for the plaintiff.  

COUNSEL:
Martin, Attorney-General, for the defendant.

A. Hall, for the plaintiff.  

OPINION:

 [*85]  The general court gave judgment, on the point saved, for the plaintiff.  

16 of 20 DOCUMENTS 

Rinaldo Johnson's Lessee against Michael Kraner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 243; 1788 Md. LEXIS 2 

October, 1788, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Turkey Cock Hall, lying in Baltimore county.

By a bill of exceptions taken at the trial of the cause, it appears, that the plaintiff, to prove the location of the tract of land called Welche's Adventure, as located by the plaintiff, offered to read in evidence to the Jury a land commission, on the petition of Thomas Johnson, for proving the bounds of his tract of land called Turkey Cock Hall, and the lands adjacent thereto, issued and directed to four commissioners, dated the 9th November, 1753. The return of the commission states the qualification of the commissioners by oath, and the following certificate signed and sealed by two of the commissioners, viz. "We hereby certify, that we caused public notice to be given of our intention to meet on the within mentioned land, on Monday, the 13th day of May, 1754, for the purposes within mentioned, and that day accordingly met on said land, and then in the presence of all parties who thought proper to attend, took the depositions hereunto annexed, as witness our hands and seals, the day and year above written."

The defendant by his counsel objected, that the said commission and return were [**2]  inadmissible, because the certificate of notice returned by the commissioners was insufficient, and because it did not appear that they had given notice, as required by the act of assembly of 1723, c. 8. entitled, "An act for the ease of the inhabitants in examining evidences relating to the bounds of lands, and in the manner of obtaining injunctions." 

JUDGES:
Hanson, J. and Goldsborough, J.  

OPINIONBY:
Hanson; Goldsborough 

OPINION:

 [*244]  The Court (Hanson, J. and Goldsborough, J.) refused to permit the said commission and return to be read in evidence to the Jury.
The Court of Appeals, at November term, 1791, affirmed the Judgment of the General Court.  

17 of 20 DOCUMENTS 

Mary Butler a against Adam Craig.

a See the case of Butler v. Boarman, September term, 1770, vol. 1. p. 371. 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 214; 1787 Md. LEXIS 5 

October, 1787, Decided 

PRIOR HISTORY:
 [**1]   PETITION for freedom by Mary Butler, claiming her freedom as a descendant from a free white woman.

At the trial of this cause, two bills of exceptions were taken.

By the first bill of exceptions it appears, that the counsel for the petitioner produced and read in evidence to the Court, sundry depositions taken in a former cause then depending between William and Mary Butler, the father and mother of the present petitioner, against Richard Boarman, on a petition for freedom; on a final hearing of which petition in the Court of Appeals, the said William and Mary Butler were adjudged to be slaves to the said Richard Boarman. a The said depositions were read by the present petitioner's counsel, to prove that the present petitioner was a descendant from a free white woman, named Irish Nell, and therefore entitled to freedom.

a See the case of Butler v. Boarman, September term, 1770, vol. 1. p. 371.

That the counsel for the defendant offered to read in evidence all the depositions taken in the same former cause, to prove that Irish Nell was married to a negro slave during the existence of the act passed in 1663--4, entitled, "an act concerning negroes and other slaves,  [**2]  " and to prove that after the said marriage the said Irish Nell was held as a slave, and that all the issue and descendants from said marriage have been constantly held and considered as slaves, and that the present petitioner, one of the descendants aforesaid, has been always held and considered as a slave by the defendant. To which evidence so offered by the defendant, the present petitioner's counsel objected, alleging that a record of the conviction of the said Irish Nell for having intermarried with the said slave should be produced, and that without such conviction, neither the said Irish Nell, nor any of her descendants, could legally be slaves.

Whereupon the Court (Hanson, J. and Goldsborough, J.) gave the following opinion: That without a conviction in a Court of Record of Irish Nell's having intermarried with a slave, she could not become a slave, nor could her issue become slaves by virtue of such intermarriage. That no presumption of such conviction arises from the petitioner and her ancestors having been always held in slavery. That the Court being satisfied that the records of St. Mary's county have been lost since the period at which such conviction is supposed to [**3]  have taken place, it is not necessary to show the record of the said conviction, but that hearsay evidence, being the best that can reasonably be expected in this case, may be admitted to prove that such conviction did take place. That no length of possession of the said Irish Nell and her descendants from the said marriage as slaves, nor any of the facts related in any of the depositions taken in the said former cause, are sufficient to satisfy the Court of such conviction.

To this opinion the defendant's counsel excepted.

By the second exception it appears, that the defendant by his counsel, produced and read in evidence to the Court, the record, proceedings and judgment, in the Court of Appeals, on a petition filed by William and Mary Butler, the father and mother of the present petitioner, against Richard Boarman, by which said record it appears, that the Provincial Court gave judgment, at September term, 1770, for freedom to the petitioners, which judgment of the Provincial Court was reversed by the Court of Appeals at May term, 1771. And the defendant prayed the opinion of the Court, that the said judgment rendered in the Court of Appeals, was a good and sufficient [**4]  bar against the present petitioner, and sufficient to preclude her from any relief on her present petition.

But the Court (Hanson, J. and Goldsborough, J.) were of opinion, that the said record, proceedings and judgment, were no bar to prevent the petitioner from claiming and having her freedom.

To which opinion the defendant excepted, and appealed to the Court of Appeals.  

DISPOSITION:
Judgment affirmed.  

COUNSEL:
Jenings, for the appellant. The petitioner is a mulatto, and descended from a free white Irish woman, called Irish Nell, who came into the province with Lord Baltimore, and intermarried with a negro slave during the existence of the act of 1663. After this act was repealed, Nell had children in consequence of this marriage, who were the ancestors of the petitioner. And the question is, whether she is entitled to freedom? This question was heretofore determined on a petition of some of the same family of mulattoes, against one Boarman, of Charles county. The Provincial Court adjudged they were entitled to freedom; but on appeal, this judgment was reversed.

The act of 1663, c. 6. reciting and condemning the practice of white women intermarrying with negroes, by which means also [**5]  divers suits might arise, touching the issue, &c. enacts, "that whatsoever free-born subject woman, should intermarry with any slave from and after the last day of that assembly, should serve the master of such slave during the life of her husband, and that all the issue of such free-born woman so married, should be slaves as their fathers were."

The act of 1681, c. 4. reciting the ill use that had been sometimes made of the former act, by masters, &c. of white women procuring such marriages, and that inconveniences might arise by controversies touching the issue of such free-born women, enacts, "that if any master, &c. of any free-born English or white woman, should by any instigation, procurement, &c. suffer any such free-born English or white woman to marry a slave after the last day of that session of assembly, he should forfeit his title to the service of such woman, and the said woman should be free, &c. A penalty of 10,000 pounds of tobacco is laid upon the master for procuring or suffering such marriage, and the like penalty upon the priest who should marry them," &c. Then follows the repealing clause: "And be it enacted, &c. that an act, entitled, an act concerning negroes [**6]  and slaves, be and is hereby utterly repealed, and made void; provided, that all matters and things relating in the said act to the marriage of negroes and free-born women and their issue, are firm and valid, according to the true intent and purpose of the said act, until the present time of the repeal thereof, any thing in this act to the contrary notwithstanding."

Two points arise. 1st. If the Court ought not to be bound by the former judgment. 2d. If the repealing act affects any issue born of marriages contracted during the existence of the law of 1663, or if it ought to be construed to affect the marriages of white women with negroes, and the issue of such marriages only which happened after the repealing law.

As to the first it ought to be considered as a bar, being solemnly determined by a Court of the dernier resort. And if it is not a bar, it is tantamount to saying, that no judgment on a petition for freedom shall determine the property, but that every individual may petition as often as he pleases, notwithstanding the condition of his ancestors has been legally determined, and this without any new evidence. This would occasion such perplexity and expense to masters,  [**7]  that they had better emancipate their slaves at once, if they claim freedom, than be involved in endless litigation and perplexity.

It is a principle of justice, that the effect of decisions should be mutual. If the ancestor is adjudged free, it would liberate the issue, and if the master kept them in slavery, he would be subject to an action, and the judgment would be conclusive against him, unless he could show circumstances to distinguish the case, and the onus probandi would be on him, ex consequenti it should have similar effects in his favour. The very point in issue has been tried before, where the ancestor was a slave.

Every judgment of a Court is conclusive, until reversed by appeal, or writ of error. But if the judgment appears in force on the record, and the effect of it is to be impeached or destroyed in a collateral suit, it would be better to have no judgments, for they will only serve to mislead. Suppose the case of a replevin for negroes, would not a judgment respecting the slavery of the parent bind the issue?

If a judgment is to be impeached or destroyed, great public inconvenience, as well as private injury, will enure from such doctrine. The former [**8]  adjudication settled the law respecting the act of 1663. No person would hesitate, after it, to purchase such issue as slaves. No parent would think he made a precarious provision in devising the issue of such as had been adjudged slaves, and no doubt many purchases, bequests and distributions, of them have been made, as well as executions on them to satisfy creditors, all which may be set afloat, if such petitions are retained.

The judgment of a Court now would be no more conclusive than a former one, and on any change of the Judges, either the petitioners or their masters might in cline to bring on the matter again, in expectation of a change of opinion in their favour. Could the former petitioners, against whom the judgment was had, petition again? If they could not, then they might be slaves under the same law that frees their issue. 4 Vin. 18. pl. 19. 2 Show. 213.

The petitioner should, at all events, show something happening since the former judgment to vary his case, or some fraud (which should be mentioned in the petition) practised in obtaining the former judgment. In chancery a decree is conclusive, but may be opened on a discovery of fraud. If a petition for freedom [**9]  is likened to a bill in chancery, an allegation and proof of such fraud should be made. If a new petition may be by the issue, in order to controvert a fact, yet certainly it ought not to be admitted to controvert a legal construction of an act of assembly, which has settled the law. This would be making all legal decisions uncertain. The former decision has now become a rule of property, which it is dangerous to set aside. This is not like a rule of practice, which may be altered, and is only a future regulation that does not affect former transactions. 1 Bl. Rep. 264. 696.

It was a great field of argument some years ago, whether the increase of female slaves should go to a devisee for life of such slaves, or to the person to whom they were limited over. It was determined in the Court of Appeals, that they should be the property of the devisee for life, otherwise the devise might be of more expense than benefit to him, by his maintaining the issue until they were capable of labour, and on his decease, they would be lost to his family. Numbers of slaves have been held under this decision, which is considered as a rule of property, and no Court should destroy it by a contrary determination.  [**10]  Those who argued contrary to that decision, insisted, that under the rule of the civil law, partus sequitur ventrem, and that where the female parent went, the issue should follow her. But the Court thought this rule only applicable to the condition of the issue, and not to their station, that is, their property.

The judgment, that the parent is a slave, must be a bar to the issue, unless they claim freedom by a different or prior title. There the determination that the parent is a slave, shall not affect the issue, as where the issue proves an act of manumission, though the parent was a slave. This is claiming freedom under a different title. Again, if by committing a particular offence, a person was to be a slave for life, there the issue, by showing how the slavery of the ancestor commenced, and their prior birth, would show a prior title to freedom.

2d point. That it was the received construction of the repealing act, at the time it passed, that it did not affect the issue of marriages, contracted during the law of 1663, may be collected from their having been always held in slavery. And usage is a good exposition of a statute. Doug. 232. 2 Rep. 81. If the masters were [**11]  actuated entirely by interest, yet there were persons who would probably have interfered, and such a gross violation of the law would hardly have passed unnoticed.

By the act of 1663, a property is undoubtedly vested in the masters of white women marrying slaves, and in the issue of such marriages and their descendants. And this was a property he had a right to dispose of, and the purchaser would have the same right. It would have been unjust in the legislature to have made an ex post facto law, which might have affected innocent purchasers. It was confirmed among the perpetual laws. 1676, c. 2. 2 Ld. Raym. 1352. 2 Show. 16.

The objection is, that the words in the repealing law, until this present time of the repeal, &c. prevents the law of 1663 from having any future efficacy, and, consequently, that it had no force whatever from that time. This construction is making the words altogether nugatory. For example, the marriages under the former law, were already continued until that time; the master had already had the benefit of the service of the mother and the issue until that time. This is saying nothing at all, nor paying any regard to the other expressions, that "all [**12]  matters and things relating to the marriage of free-born women and their issue, are firm and valid, according to the true intent and purpose of the said act, any thing in this act to the contrary notwithstanding." What, in the act of 1663, related to the marriage of free-born women and their issue? The answer is plain, that such women should serve during life, and all their issue should be slaves; then all these things are to be firm and valid. But how are they so, if the repealing act entirely alters the effects; for a thing can never be said to remain in the same position, when its position is changed.

By construing, therefore, the words "until this present time of the repeal thereof," in the sense they contend for, the other expressions have no effect. But the words until the present time, &c. may be construed to have a consistent effect with the whole, to wit, that all such marriages, after the law of 1663, until this present time, and the issue of such marriages, shall be regulated by that law, but that such marriages, and the issue of such marriages, from that present time, (the time in the repealing act,) should not be affected by the law of 1663. This construction gives [**13]  force to all the expressions, preserves former rights, and guards against future abuses. 1 Show. 108. And that the legislature had this effect in contemplation, is evident from the proviso, which is plainly thrown in to prevent any construction, that the effects of marriages, under the law of 1663, were to be destroyed. They make use of the words, shall be utterly repealed and made void, &c. It appears they were apprehensive these words might be thought to affect interests acquired under the former law, and therefore threw in the proviso to prevent such construction; and the general words in the proviso, had they not been qualified, would leave the act of 1663 as it was.

If the legislature intended to destroy all consequences under the act of 1663, they would have used the words that "no matters or things, &c. should be valid from thenceforth," instead of expressions which are directly contrary. It was not uncommon with the legislature, in repealing acts, to insert clauses saying of rights under former laws. But it never yet was contended, that such a saving destroyed or abridged those rights, when it is evident, from the insertion of such a clause, the intent was to preserve [**14]  them. See the act of 1704, c. 67.

If the words "until this present time of the repeal thereof," had not been inserted, the two clauses would have been contradictory, for the law of 1681 would repeal that of 1663, and yet continue it as to all its effects; therefore, until this present time was thrown in to prevent such effect.

To get over the objections that the repealing law did nothing, if it only confirmed things before until that time, it was said that the issue born before should continue slaves, but those born after the repeal should be free. What reason could the legislature have for such a distinction? The making of the issue slaves was intended to deter women from such unnatural marriages, by the punishment of their issue. This punishment was intended to be continued or removed by the repealing law, as to marriages during the act of 1663. If to be continued, why should the issue born at one time be more severely punished than those born at another? Pari ratione, if intended to be removed, why should it be from one and not the other.

The legislature meant to preserve all effects of marriages under the act of 1663, or they did not; if they did, there was no reason [**15]  for a discrimination of punishment, with respect to the issue; if they did not, there was no reason for a discrimination of favour. Whatever may be our ideas now, at that time it would hardly have been thought politic, or productive of public convenience, to have made this distinction. To have part of the children of the same parents slaves and part free, might have occasioned scenes of villany, where those whose oaths were admissible, might have been witnesses for the others, and iniquitous scenes of collusion carried on amongst them. Such a distinction too, would have been a punishment on the owner of the mother, who must either maintain such after-born children, or suffer them to perish. This effect the legislature must have foreseen, and would doubtless have guarded against it, if their intention was as contended for.

Again, this distinction of the prior and after-born issue destroys the principle, that the act of 1663 was to have no effect after the repealing law, and admits, that the words until this present time are not to be tied up strictly to that period, but are to receive a future construction. If the legislature had in view the meaning contended for, how easy was [**16]  it to have added the words now born, after the words "free-born women and their issue," instead of the comprehensive word all. In short, there is not one syllable in the law to justify this supposed construction.

The repealing law does not consider the act of 1663 so unjust or impolitic, but they repeal it only on account of the abuses that had been committed under it; they could, therefore, have no intention to destroy any of the rights of persons that were founded on a law, which law in itself they appear to have considered as a proper one. Suppose a law was passed that all conveyances to a man and his heirs should be in writing; that twenty years after, a law was made, reciting that many persons had been inveigled to make such conveyances, and that no conveyance to a man and his heirs should be effectual, unless acknowledged and recorded, and then suppose a clause similar to the present, for repealing and making void the former act, with a proviso also, similar to the one in question, would it be right to say that the estate of the party, though acquired under the former law, should immediately cease after the repealing act, and that it only meant to render valid what had passed [**17]  before? The estate had been possessed until that time, therefore it was saying nothing at all. To get over this, suppose it should be said, that the heirs born before the repealing act, should enjoy it during their lives, but not their heirs after them. Would not this be giving up all reliance on the words "until this present time of the repeal," &c. be a manifest contradiction to the other words in the proviso, and a flagrant act of injustice to those who derived rights under the former? The cases are similar, except that one respects real, and the other personal property.

Suppose, after the act of 1715, c. 44. making all negroes and other slaves, then imported, or thereafter to be imported, and their children then born, and thereafter to be born, slaves, a law had been passed, reciting that negroes were trepanned from their country, and then repealing the law of 1715, c. 44. and adding the same proviso as is added in the act in question.

Suppose a law made, giving the property of horses that run wild in the woods, to the person taking them. Suppose, afterwards, a repealing law made, which recited, that whereas many people had turned out and drove into the woods their neighbours'  [**18]  cattle, which, after running some time wild they had taken up, and to avoid these mischiefs repealing the first law, with the same proviso, and in the same words as the present one, would not the takers up of cattle hold the stock coming from what they had properly taken up, under the law?

It is objected, that the repealing of an act does not destroy mesne rights, derived under the original act, therefore a bare repeal was sufficient, if rights so derived were intended to be continued. Therefore, by using the words "until this present time of the repeal thereof," the legislature meant to prevent the continuance of such mesne rights, after the repeal, and also to prevent persons from being molested for having exercised such rights under the original law, and this will give force to the words "until this present time," &c. otherwise they would be nugatory.

In answer to this, it is asked, why insert in the act the words "that all matters and things relating, in the said act, to the marriage of negroes and free-born women, and their issue, are firm and valid, according to the true intent and purposes of the said act." If all the issue born before the repealing law, are to be [**19]  free, the master is punished for bringing them up till they are serviceable, by then losing them.

It is objected, that there ought to have been a conviction of the mother.

In the General Court, the opinions were divided. The two associates were of opinion that the former decision was no bar, also that a conviction ought to be proved, but that parol testimony by tradition of there having been such a conviction, was sufficient presumption, under the circumstances of the case, as accidents might have happened to the records. The Chief Judge was of opinion, that the former determination was a bar in this case. Also that no conviction was necessary to make the issue slaves. Further, that if a conviction was necessary, the length of time that the petitioner and the ancestor were kept in slavery, was a sufficient presumption of there having been a conviction.

Two points arise; 1st. Whether a conviction is necessary; 2d. If necessary, whether from the circumstances of the country, the burning of the court-house, and the great length of possession, was not presumptive evidence that a conviction had taken place.

The words in the act of 1663, c. 6. after saying the woman should [**20]  serve the master of such slave, are "and that all the issue of such free-born woman, so married, should be slaves as their fathers were."

The law of England, applicable in any manner to this question, is, that of villenage, and there is no instance of any conviction to make a villein. But if one does an act which renders him a villein, the lord might immediately seize him as any other property; and if he was detained by others, the lord might sue them, and on proving the facts would recover.

If a villein taketh a free woman to wife, the issue shall be villeins. But there never was an instance, that the woman must be convicted of such marriage before the lord's right attaches. As soon as the issue are born, they are slaves, and the lord may seize them any where except in the presence of the king. Co. Litt. 23. a. 137. b. Sullivan's Lect. 258. The common law puts the issue exactly in the same situation as the issue in the act of 1663. There must have been numberless prosecutions, if the law had required them, but none are to be found in the Year-Books, from Edw. I. to Hen. VII.

The principle of the objection is this; that where a statute imposes a punishment, there must [**21]  be a precedent conviction. But this objection does not apply to the cases of vesting specific property for doing what was not an antecedent crime; for a statute declaring that, if a person does an act which he had a right to do before, another shall have his land, the other may enter, and a conviction is not necessary to vest the property. 3 Co. 37. Radcliff's case.

Papists are disabled to purchase, by statute, the next protestant heir may seize the lands on the forfeiture, without any conviction. The proof of the other being a papist, is sufficient to support the title. Yet this may be a forfeiture of his whole property, and the statute does not direct a conviction. 3 Bac. Abr. 797.

When there is a question of slavery, though it affects the person of an individual, yet it is a mere question of property. If it were considered otherwise, there must be different rules of evidence between this and all other cases; but what code of laws gives us such other, evidence?

The objection is, that if a law makes the issue of persons of a particular description slaves, that the issue cannot be held in slavery without the conviction of the ancestor, to prove that she comes within [**22]  the description of the law. If this objection was well founded, all negroes would be free.

The description of the ancestor in the act of 1663, is, a white woman marrying a negro. They say she must have been convicted of the fact of marrying a negro. The act of 1715, c. 44. makes negroes imported, and their issue, slaves; the description, therefore, of the ancestor in this act, is an imported negro, ergo, she ought to have been convicted of being so. This act also points out the mode of conviction in some cases. In the act of 1663, no conviction is mentioned, nor in that of 1715; there must, therefore, be the same construction in both. The assembly considered white women, who so debased themselves as to marry negroes, to be no better than negroes, and indeed they deserve less favour. Black people are as much entitled to natural liberty as white.

But suppose the conviction of the mother was necessary to make her serve during the life of the husband, it has nothing to do with the issue. The master's title to the issue does not depend on her service, but on the fact of the marriage. And the issue on the trial must be, was she, or was she not, married? not was she, or was she [**23]  not, convicted. The act does not say on conviction of the mother, but on her marriage. Suppose the master did not want the woman, and should choose to waive her service; yet he would be entitled to the issue, on account of the marriage. It would be a strange construction to say a man should not waive a penalty given for his benefit. This would prevent a man's doing a humane act, as it would subject him to injury for doing it. How is the master of the slave to get her convicted? She might conceal herself so that no process could be served on her; and suppose she has children notwithstanding. Suppose she should remove into a different state, shortly after the marriage, and be there delivered; would not the issue and the descendants be his property? or, because he has waived the legal process, is he to lose his property in the issue? If the law was to say, if an American married a European, the issue should be slaves, would a conviction be necessary?

The clauses in the act are distinct and independent. The first is for making the woman serve. The second, for declaring the issue slaves on account of the marriage. It says that all the issue of such free-born women so married, shall [**24]  be slaves; therefore, as to the issue at least, the proof of the marriage is all that is required. If the issue must be convicted of being the descendants of such marriage, they must in like manner be convicted of being descendants of imported negroes. Suppose a conviction had been produced, it would have been objected, that it could not be given in evidence, as a verdict ought not to affect persons who are no parties to it. If they say a judgment on a petition could not be a bar, how could a conviction in a criminal case, since the rule is, that a verdict in a criminal case cannot be given in evidence on a civil proceeding. Suppose a man indicted for forging a conveyance, and convicted, and the party claiming under this forged deed should bring an ejectment on it, and insist that it was a valid one, the conviction could not be given in evidence to defeat his title. Suppose it was evidence in this case, yet they would say it was not conclusive, but the petitioners might give evidence to prove there was no marriage, notwithstanding the conviction. Therefore masters may give evidence of a marriage, though there was no conviction, or the rule would not be mutual.

If a conviction [**25]  is necessary, there is sufficient presumptive evidence of it. Facts may be proved two ways, by positive or presumptive evidence. Few ancient transactions admit of positive evidence. The issue of this marriage have always been held in slavery, and the presumption is, that they would not have been so held, had they not been legally held. Some of those who made the law in 1663 are probably alive, and the thing, if unjust, would have been exclaimed against by them and others. This proves that the law was never so construed, and contemporary exposition is strong; or if a conviction was necessary, it proves that there was a conviction. It would, perhaps, be impossible to prove a conviction under the circumstances of many records being lost, and the court-house being burnt. See Bacon's Preface to Acts of Assembly.

Suppose a man had held land for great length of time, and no patent could be found on record, would it not be presumed the record of it was lost? Long possession is looked on as the best evidence of right. Lord Coke says, length of possession without a deed, is better evidence than a deed without possession. A patent is necessary for the granting of land, yet though none be [**26]  found, the presumption is, there was one if the land has been long held. Then if they say that a conviction was necessary in this case, from the length of possession, the presumption is, there was one. The Court admitted evidence might have been given of a tradition that there was a conviction. Would tradition without possession have done, and will not possession without tradition do? This would be rejecting the strongest evidence, and admitting the weakest.

It is objected, that presumption may be admitted in other cases, yet not in that of negroes, who have not the same means of prosecuting their rights. But in answer to this, there is no instance of negroes being refused to petition. There are many of this family, and they have been held in slavery for many years, and have never thought of petitioning till lately, when they had liberty to do it. On this principle, most people must lose their slaves, for the only title they can show in general, is length of possession. But length of possession is not positive, but only presumptive, evidence of a right. But it seems they must show positively the first ancestor was a slave. If so, every person holding mulattoes, must unavoidably [**27]  lose them. The act says, negroes and their issue shall be slaves. Now a mulatto may come from a negro and a white woman, as well as from a white man and a black woman; and it might be argued, that in favour of liberty, the first ought to be presumed, unless there is positive proof to the contrary. The master, we will suppose, has no positive evidence to prove this, but proves, that for a great number of years the mulattoes and their ancestors have been held in slavery; but this is only presumptive proof they originally came from a black woman, and if no presumption is to have effect in these cases, they must of course be set free.

The two Judges who gave the opinion against us, said, we might give parol traditional evidence, that there had been a conviction. But traditional evidence is not positive, but presumptive. If it was positive evidence, it might be given in all cases, but traditional evidence is only admitted in particular cases. Gilb. Evid. 152. The Court, therefore, in this case, admitted presumptive evidence. The Judges, by saying that they would have regarded traditional evidence, though they paid no regard to constant possession for a century, would have admitted [**28]  the weakest evidence, whilst they rejected the strongest; for presumption arising from possession, is much stronger than any reports, however handed down. Therefore it is, that possession is admitted as proof in all cases of property, but parol tradition is confined to very few. Cowp. 110, 111. When a fact does not admit of proof, the next evidence is the circumstances which generally attend the fact. Gilb. 160. They say a conviction was necessary; if it was, what are the circumstances which would necessarily attend it? Certainly, the possession of the issue as slaves. But tradition would not necessarily accompany such conviction, nor would it, in my opinion, have any weight, if admissible, as tradition might arise from surmise. Tradition, in itself, is the weakest of all evidence, and never admitted but in case of necessity. If it was generally received, it would be of a dangerous tendency, as a designing person might designedly raise a report, in order to have it propagated and handed down for a particular purpose. In ejectment, no evidence could be given of a tradition that the land belonged to one of the parties, or his ancestors; but the possession of that party and his ancestor [**29]  would be evidence. This shows the weakness of the one kind of evidence, when opposed to the other.

Chase, for the appellee. The petitioner is the great-grandchild of Irish Nell, a white woman, and as such is entitled to freedom, unless a slave in virtue of the act of 1663-4, which enacts "that whatsoever free-born woman shall intermarry with any slave, shall serve the master of such slave during the life of her husband, and that all the issue of such free-born woman, so married, shall be slaves, as their fathers were." The preamble recites, that free-born English women married negro slaves, and that the act is made for deterring such free-born women from such shameful matches. This act is highly penal on the free-born women, as it subjects them to serve during the lives of their husbands, and is most penal and cruel on their innocent children, in making them and all their posterity slaves. This act was repealed in 1681.

The law of nature does not prohibit a white person marrying with a black person, and only negroes and their descendants were slaves in Maryland. It is the act of assembly alone, which creates the offence and annexes the penalty, which is unjust and cruel;  [**30]  unjust to the mother, because she is guilty of no crime, and most unjust and cruel to the offspring, who are wholly innocent. The marriage of a white woman with a negro slave is the crime, but the act prescribes no mode by which she is to be convicted of the crime, though such penal consequences are to follow the fact.

The General Court have given their opinion, that without a conviction in a Court of Record, of Irish Nell's having intermarried with a slave, she could not become a slave, nor would her issue become slaves by virtue of such intermarriage. That the records of St. Mary's being lost, since the period at which such conviction is supposed to have taken place, it is not necessary to show the record, but hearsay evidence may be admitted, to prove that such conviction did take place. Ought this opinion and judgment to be affirmed, or not?

As the act points out no mode of conviction, I contend that there must be a trial according to the common law, by presentment and judgment. The law makes the marriage a crime. The marriage is a fact, and every fact created a crime, must be proved before a Jury, unless some other mode is prescribed by positive law, and a conviction [**31]  and judgment thereon. If a statute creates an offence, and appoints no trial, it must be tried by the rules of the common law.

Irish Nell was an English subject, and as such entitled to all the privileges of an English subject in an equal degree with any other English subject, however possessed with wealth, and exalted in station or rank. If she committed the crime of marrying a negro slave, she would by law be subject to no punishment before conviction, in some mode, and she was entitled to the common law mode of trial by Jury, as no other mode was prescribed by law. By magna charta, (2 Inst. 45.) nullus liber homo disseisietur de libertatibus, nisi per legem terrae. Libertatibus signifies the laws of the realm. Nisi per legem terrae, without due process of law. 2 Inst. 50, 51. Sullivan's Lect. 352. 372. Stat. 28 Edw. III. c. 3. 42 Edw. III. c. 3.

If a witness is objected to, because he has committed some offence, as felony or perjury, that incapacitates him to be a witness, evidence is not admissible to prove the fact, but the record of the conviction must be produced, and the judgment thereon. The conviction without the judgment is not sufficient. Cowp. 3. 12 Vin. 131.  [**32]  pl. 6. 5 Com. 545. Buller, 292. A fortiori in this case, when the party violating the law is to be a slave during the life of her husband, and her issue slaves for ever. In the case of attainder for treason and corruption of blood, if the lord claims the land by escheat, he must produce the record of the attainder. In either of these instances, if a hundred witnesses of unquestionable credit could be produced, they would not be received to prove the fact of felony, perjury or treason. Upon the same principles parol evidence is not admissible, to prove that Irish Nell married a negro slave during the existence of the act of 1663.

Hearsay or tradition is not sufficient to prove any crime. The act of 1663 makes it an offence, or crime, highly penal, for a white woman to marry a negro slave. Suppose Irish Nell had been indicted for marrying a slave, would evidence be received of what the clergyman and others present at the wedding, but dead before the trial, had declared? Certainly not. Will length of time make that admissible, which was not so in the beginning? If such evidence was illegal to convict Irish Nell, it cannot now be received against her issue.

By the act of 1715,  [**33]  c. 44. s. 26, 27, 28. the mode of proceeding is pointed out in the case of white persons having children by negroes or slaves. The act of 1663 points out no mode of conviction. Is any, or what mode is necessary? If a statute inflicts a penalty for doing a thing, which was no offence before, but does not appropriate the penalty, or direct any method of recovery, such offence is not indictable, but debt lies to recover the penalty. Poph. 175. 2 Stra. 828. If the offence was punishable at common law, an indictment lies. If a statute appoints a particular method of proceeding, as by information, &c. without mentioning indictment, no indictment lies. 4 Bac. 654. 2 Hawk. 211. Plowd. 206, 207.

The trial of all criminal matters is by the country, and the party accused cannot be denied it unless it be his own fault. As if he will not plead. Trials per pais, 16. or 14. cites Staundf. P. C. 150. 4 Shep. Abr. 154. If a statute gives justices a power, generally to determine a matter at the sessions, it must be according to law, and as a Court. 6 Mod. 17. 1 Vent. 33. 37. 171. If, whenever an act of parliament makes an offence, and is silent on the manner of trying it, it shall be intended to [**34]  be a trial per pais, according to magna charta. 7 Mod. 99. Hob. 127. And if the law speaks of proof, it is intended to be by Jury. 5 Co. 108. Vin. Trial, 71. pl. 19. 75. pl. 4. 1 Burr. 389. 545. 2 Burr. 803. 805. Cowp. 297. Judgment for corporal punishment, cannot be given against one in his absence. Salk. 400. When a statute wills any thing to be done generally, and does not appoint any special means, it shall be granted according to the course of the common law. Vin. Statute, 512. pl. 13. Savil. 39. If an act of parliament inflicteth no penalty, the offender is liable to be punished by fine and imprisonment, upon indictment. 2 Burn's Eccles. Law, 426. Where a trial by Jury is dispensed with, and a special power is given to a justice to convict an offender in a summary way, yet he must proceed according to the course of the common law, in trials by Jury. 1 Burn's Just. 363. 4 Com. 150. The justice acts both as Jury and Judge, and his conviction must contain both a verdict and a judgment. Doug. 638. Evidence must be stated. 2 Burr. 1167. 1184. 3 Burr. 1786. 4 Burr. 2063, 2064. In an indictment, it must appear on the record that the trial was had by twelve jurors, otherwise the judgment [**35]  will be reversed. 2 Bl. Rep. 718.  

OPINION:

 [*236]  The Court of Appeals, at June term, 1791, affirmed the judgment of the General Court.  

18 of 20 DOCUMENTS 

State of Maryland against Nicholas Sluby.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 480; 1790 Md. LEXIS 16 

May, 1790, Decided 

PRIOR HISTORY:
 [**1]   THIS was a scirc facias on a bond, dated the 27th April, 1789, to the state, penalty 704l. 1s. 4d. current money, reciting, that "whereas the above bound Nicholas Sluby & Co. have imported in the ship called Baltic Merchant, whereof Joshua Shepherd is master, (which said ship arrived and made due entry in the port of Baltimore, on the 21st of April, 1789,) sundry goods, wares and merchandise, to pay duty according to the laws of the state, to the amount of 352l. Os. 8d. current money, with condition to pay the said sum of 352l. Os. 8d. current money into the hands of the naval officer of the fourth district, or to his deputy, on or before the 21st of February then next," &c.

The defendant's counsel demurred generally to the scire facias, and the question for the Court was, whether the state of Maryland was entitled to the duties under the acts of assembly of 1784, c. 84. and 1785, c. 76. after the adoption of the federal constitution.  

DISPOSITION:
Affirmed.  

COUNSEL:
Key and Potts, for the defendant. The acts of assembly are repealed by the constitution of the United States. The act of congress does not repeal them; they only operate by the general operation of the government. The duties might [**2]  be different according to the different laws of each state, but by the federal constitution all duties must be uniform throughout the United States, and vessels bound from one state to another shall not pay duties. If the consent of Congress was given to the state to raise duties it would not be binding, for Congress can consent only where the duties are applied to the United States. Even if Congress had appropriated the duties to the United States, such an act would not be good, it not being founded in the constitution, and would cause a want of uniformity in the different states.

By the 8th section of the 1st article of the constitution of the United States, all duties must be uniform. All laws which are inconsistent with this clause of the constitution defeats it. The act of assembly is void. It appropriates one fourth of the duties to the state; this Congress could not assent to. The custom-house officer ceased to be the officer of the state of Maryland as soon as the constitution of the United States was ratified. The alteration of our state constitution in the year 1776 altered and repealed all laws which were inconsistent with it.

Martin (Attorney-General) and Chase,  [**3]  for the state. This is a question of construction. Under the 10th section, article 2d, of the constitution of the United States, the state governments may, with the consent of Congress, lay imposts and duties on exports and imports, to carry into execution their inspection laws. The intention of the constitution is, that all duties imposed by Congress should be uniform throughout the United States. No duties are to be laid without the consent of Congress, and yet the Congress may lay the same duties. All laws laying duties antecedent to the constitution of the United States, remained in force until Congress laid duties. The reason why there should be no duties on imports and exports, from one state to another, was to prevent any favourite port from being crected. If the constitution admits of any construction necessarily repugnant to the laws of the state, it is a repeal of them. The naval officer did not cease to be the officer of the state until the first of August, 1789, by virtue of the act of Congress of the 4th July, 1789, c. 2. The citizens of the state have paid the duties, and it cannot be presumed that it was intended this revenue should be relinquished before laws of Congress [**4]  had passed which would operate as a repeal of the state laws.

All acts inconsistent with the constitution are null and void. But the constitution has no operation on this case. Congress has the power to lay duties, and such duties must be uniform when laid by Congress. No state can pass a law contrary to this provision of the constitution. If it was intended by the constitution to repeal the revenue laws of the state, it should have been so expressed.  

OPINION:

 [*482]  The Court overruled the demurrer, and directed the execution to issue.
At November term, 1792, the Court of Appeals affirmed the judgment.  

19 of 20 DOCUMENTS 

John Steinmetz against William Hammond, Garnishee of De Drusina, Ridder & Clerke.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 399; 1789 Md. LEXIS 13 

October, 1789, Decided 

DISPOSITION:
 [**1]  Reversed.  

COUNSEL:
R. Ridgely, for appellant.

D. M'Mechen, for appellee.  

OPINION:

 [*399]  IT appears that on the 22d of May, 1788, a writ of attachment founded upon a judgment on two non suits issued, directed to the Sheriff of Prince George's County, in the usual form, and that the said attachment was laid in the hands of Robert Young, attorney in fact; that the said Young appeared and pleaded several pleas. But afterwards at this term, the said Young withdrew his pleas and confessed effects in his hands to the sum of 471l. 5s. 7d. current money and judgment of condemnation thereupon entered, &c.
At this term, without being warned to appear, the defendant, William Hammond, of Baltimore County, voluntarily came into Court by his attorney, (by and with the consent of the plaintiff,) and confessed effects of the said De Drusina, &c. in his hands, to the amount of 400l. current money, and judgment of condemnation was thereupon entered against him, &c.
Afterwards, on the 29th of October, 1792, the defendant brought a writ of error, and the judgment of the General Court was reversed in the Court of Appeals at June term, 1794.  

20 of 20 DOCUMENTS 

Abel Browne's Lessee against James Anderson.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 100; 1785 Md. LEXIS 1 

May, 1785, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment for a tract of land called Harwood, lying in Anne Arundel county.

It appears by the special verdict found in this case, that Abel Brown, the grandfather of the lessor of the plaintiff, was seised of the tract of land in question, and being so seised, some time in the year 1698, he executed his last will and testament, in which was contained the following devises:

"I give and bequeath unto my dear and well beloved son, Robert Browne, and to the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland or elsewhere, (to say,) all that tract or parcel of land whereon I now live, called and known by the name of Harwood, situate, lying or being, in or near Road River, in Anne Arundel county, which is laid out by survey to contain 150 acres, be the same more or less. But if my said son Robert Browne shall die without heir or heirs of his body lawfully begotten, then it is my will and desire, that Samuel and James Browne, the sons of my brother James Browne, who dwelt in the island of Bermuda, may have the aforesaid tract of land called Harwood, to them and their heirs, male or female, for ever,  [**2]  equally to be divided into two parts, that is, one moiety to Samuel Browne and his heirs, and the other moiety to the said James Browne and his heirs; and for want of heirs male, then to females, or their or her heirs lineally descended, to the longest living heir or heiress of that my said brother James, his female heirs or issue. And likewise I give and bequeath to my son Robert Browne, his heirs and assigns for ever, all my tract of land called Abel's Lot, lying in Baltimore county, near Bush River, containing by survey 300 acres, more or less."

After declaring his debts to be paid, the testator says, "And as for all other my personal estate, goods and chattels, I hereby clearly and absolutely give and bequeath unto my said son Robert, that is, all of my personal estate that shall be found in this province of Maryland or elsewhere, after debts paid and funeral charges defrayed as aforesaid, the remainder to be to my said son Robert, his heirs, executors, administrators and assigns, and to his and their only proper use and behoof, by him to be disposed of as to him shall seem good and requisite after my decease."

"And my will and desire is, that if my said son Robert Browne [**3]  shall or do die the death before he is married, or before he cometh of lawful age to dispose of the aforesaid estate lawfully which I have here given and bequeathed to him, or if he should be suddenly taken away out of this mortal life without wife, issue, or will, that then all and singular the before-mentioned personal and real estate, to my said son Robert bequeathed, shall fall, go, and be to, and for, the proper use and behoof of my above-named brother James Browne, his children Samuel and James Browne, and their issue, or the issues of that family as above meant and expressed, on lineal descent; and it is my will and desire, that if my son Robert should marry before he cometh of lawful age, and should have no issue by his said wife during his nonage, and should die and depart this world before he is of ripe years to dispose of his land before bequeathed, that shall not hinder his said wife (if at such time any he hath) from her peaceable enjoyment of the said personal estate before given, neither from her lawful dowry in the before-mentioned lands, and during her natural life, any thing in this my last will and testament to the contrary in any wise notwithstanding."

The [**4]  testator appoints his son Robert, "his whole and sole heir and executor, to pay just debts," &c. and after the death of the testator, "the aforesaid given lands, premises, into his hands, possession and management, to take, and without any removal or change of property to be made, the same to have, hold, possess and enjoy, and according to his discretion the same to husband and manure, to his and for his own use, property and interest and advantage, at his will and pleasure, except what is before excepted."

The testator died seised of the land in question, some time in the year 1702, when, in virtue of the said devise, Robert Browne the devisee, entered and was seised of the land, and on the 8th of December, 1719, conveyed the same in fee-simple to James Mouat, who died in the year 1763, having first devised the land to the defendant and his heirs.

Robert Browne, the devisee mentioned in the will, died in the year 1769, leaving Abel Browne the lessor of the plaintiff, his eldest son and heir at law, who in the year 1773, entered upon and made a demand of the said tract of land of the defendant, claiming the same to him and the heirs of his body, under the will of his grandfather.  [**5]  

COUNSEL:
Ridgely, for plaintiff. In order to comprehend this case, and decide it on the principles of law, it will be necessary to lay down a few rules respecting estates, from whence arguments may be drawn to satisfy the Court, whether a decision in this case should take place for the plaintiff or not.

1st. Lands given to a man and his heirs for ever, is an estate in fee.

2d. Lands given to a man and the heirs of his body lawfully begotten, is an estate in tail. The word body, or some other word of procreation, being necessary to make a fee-tail.

This case must be argued upon the facts stated in the special verdict. And the only question which can arise for decision is, whether Abel Browne, by his will in 1698, devised the tract of land in dispute, in fee-simple or fee-tail.

This question is to depend on the words of the will, and the intention of the testator to be collected from those words. What does the will say? By the first clause, an express estate-tail is given, in as strong words as language can express, and as emphatical expressions as the law requires.

The second clause is a devise in fee of Abel's Lot.

The third clause is: "If my said son should [**6]  die before he come of lawful age to dispose of the aforesaid estate lawfully, which I have here given him, then all and singular the before-mentioned personal and real estate, to my said son Robert bequeathed, shall go to his brother's children."

The fourth clause: "In case he should die before of age to dispose of his estate, his wife to have her dower."

The fifth clause makes his son executor, and directs, that he shall take possession of the estate to use at his pleasure, except as before excepted.

From this will, it is plainly to be collected, that the testator intended to limit the tract of land called Harwood, to his son in tail, else why make use of the words of his body lawfully begotten? for they were intended to mean something, or it was nugatory to insert them.

What clearly proves this position, is the subsequent clause, where the testator devises an estate in fee in the land called Abel's Lot. If he had intended the land called Harwood to be in fee, why not include them in the same clause?

But it will be said, that the subsequent clauses, when taken collectively, show the intent of the testator to pass an unfettered estate to his son, without any [**7]  restriction or limitation whatever. A few moments' attention to the rules laid down for the construction of wills, must satisfy the Court that such a position cannot be supported.

Here is an express estate in tail, devised in as strong words as the law can furnish; and the question is, whether this estate so limited can be destroyed by implication, and whether there exists a necessity to destroy it, in order to give this will effect.

What is the rule laid down in the books? That where an estate is devised by express words, the Court will make no construction by implication to destroy such estate, contrary to the words of the will.

A husband seised in fee, devises to his wife for her life, and then to be at her disposal to any of her children who shall be then living. It was adjudged to be an estate for life, and the Court held the disposing power to be a distinct gift, and that the will gave a certain and express estate for life. 1 Salk. 239. 10 Mod. 31. 71. Where the devisee takes a particular estate of inheritance by express words, such estate shall not be enlarged by implication. 2 Bac. Abr. 68. Where the intention of the testator may be presumed, Judges will pursue [**8]  it; but where there are express words, it would be to overrule the plain meaning of the testator, against his own words. Id. 2d case. Where there was a devise to A. for 50 years, remainder to the heirs male of A., remainder over, the Court said it was not an estate-tail by implication, because the devisor had given him an estate for years by express words, and the Court can make no construction against express words. 1 Salk. 226. Where a particular estate is expressly devised, the Court will not, by any subsequent clause, collect a contrary intent, inconsistent with the first, by implication. 1 Salk. 236. Where an estate is given by express words, no subsequent general words shall control the preceding devise. 1 Atk. 432. 2 Atk. 113. Other cases cited, 1 P. Wms. 149. 151. 154. 3 Leon. 71. 1 Mod. 189. 2 Lev. 104, 8 Vin. 259. pl. 1. 260. pl. 7. 272. pl. 1. 2 Vern. 450. 1 P. Wms. 54. Salk. 236. Cases temp. Talbot, 9. 14 Vin. 157. pl. 4. Cowp. 379. Gilb. Dev. 74. 81. 110. 111, 112.

A great part of the will must be rejected, if this is to be construed an estate in fee-simple. There exists no necessity for such implication, and the rules of law will not warrant it. The construction [**9]  of a will must be favourable, and as near the mind and apparent intent of the testator, as the rules of law will admit of. 2 Bl. 379. 1 Wils. 32. 2 Wils. 88. 323. 2 Burr. 1111. 3 Burr. 1540. 1573.

Where there appears a particular intent, and a general intent, the general intent must take effect. 2 Wils. 324. General words may, by other words in a will, be restrained; and it is the same where directly expressed, or plainly collected from the will. 2 Burr. 929. And the intention is to be collected from the whole of the will. 3 Burr. 1541. 1574. 1622. The Court will not supply a contingency omitted. If words are rejected or supplied, it must be in support of a manifest intent. 3 Burr. 1634.

A devise is to be favourably expounded, to pursue, if possible, the intent of the devisor. 3 Burr. 1535. Devise to one for life, and after to her issue, and if she has no issue, power to dispose thereof at her will and pleasure, the contingency of issue never happened, held, she took a fee. 2 Wils. 6. Co. Litt. 226. 1 Raym. 34. Suppose there had been issue, it would have been an estate-tail.

Where there is a devise of all my real estate to A. for and during the term of his natural life,  [**10]  and no longer, and after his decease, to such son as shall be lawfully begotten, and for default of such issue, remainder over; it is an estate in tail by necessary implication, to effectuate the manifest general intent, notwithstanding the express estate devised for life and no longer. 1 Burr. 51. 1 Ld. Raym. 34. 204. 1 Stra. 12. 1 Ld. Raym. 203. Devise to A. for life, without impeachment of waste, and in case he have any issue male, then to such issue male and his heirs for ever; and if he die without issue male, then to B. and his heirs for ever, is an estate-tail. 1 Burr. 38. Salk. 224. 3 Lev. 431. Devise by father to son and his heirs for ever, and for want of such heirs, remainder over; it is an estate-tail. Salk. 233. 1 Ld. Raym. 568. To gratify the intention of the devisor, the law will supply the words of his body. 1 Ld. Raym. 186. One rule is, that no technical form is necessary to convey the testator's meaning, which is to be collected from the will itself. 2 Burr. 770.

The statute of wills requires a testament to be in writing, but requires no technical words. And if, by sound construction, it appears that the intention was to devise a fee, it is immaterial what words [**11]  are used. 3 Burr. 1625. If an estate for life is given in express terms, yet if there be a proviso, that in case he has heirs lawfully begotten, it creates an estate-tail in the devisee. 1 Burr. 38. 1 Vent. 231. 1 Atk. 432. 2 Brownl. 271. A devise to the son, and provided that if he should die before he comes to the age of 21 years, or without issue of his body, then to the daughter, held to be an estate-tail. Free. 510. 1 Ld. Raym. 505. Cro. Car. 185. Wherever a greater estate than for life is intended to be given, and a fee is not limited, it must be an estate-tail. Dyer, 330. 2 Vez. 243.

One principle will be found to run through all the books, and reconciles all the cases. That if it appears upon the whole will taken together, that the intention of the testator was to limit an estate over upon failure of issue generally, then the first devisee has an estate in tail.

Chase, for the plaintiff. After the estate-tail to Robert, the remainder over is to his two nephews. On the fifth clause combined with the first, as he conceives, it will be contended, that the estate-tail created in the first clause is enlarged into a fee-simple. The seventh clause is unintelligible; but [**12]  it may be conjectured that the testator's intention was to prevent the wife being barred of her dower in the personal estate. It appears by the will, that Robert, the devisee, was the testator's only son and heir at law.

The words in the fifth clause, if his son Robert should die before he is married, or before he cometh of lawful age to dispose of aforesaid estate lawfully, is the ground upon which it will be argued, that by implication, a fee-simple is created. But it must be shown, that the fifth clause necessarily relates to the first devise, and no other. It appears to have been the intention of the testator, upon the happening of the contingencies mentioned in the fifth clause, to give the land devised in fee, and the personal estate, in the same manner as he had given the land in the first devise.

Where lands are devised to one generally, and to be at his disposal, it is a fee in the devisee. But where there is an express devise for life, or in tail, and afterwards to be at the disposal of the devisee, the express estate only will pass, and cannot be controlled by implication. 1 P. Wms. 154. 1 Mod. 189. 8 Vin. Abr. (Devise,) 235. pl. 9. 259. pl. 1. 260. pl. 7. 272.  [**13]  pl. 1.

A necessary implication may control an express devise, by enlarging or diminishing it. But the necessary implication must arise from the words of the will, and denote the plain intent of the testator. Gilb. Dev. 74. 81. And to make a necessary implication, the words must be such that they can have no other construction. Cowp. 379. Cases temp. Talbot, 9. 14 Vin. 157. pl. 4. It is then incumbent on the defendant's counsel, to show that the words in the fifth clause can have no other construction than to enlarge the estate to a fee-simple. In addition to the authorities already cited in 2 Vern. 449, 50. it held, an estate may be enlarged by express words, but not by implication.

Thus far the case has been considered as if the devise was to a stranger. But in this case, the devise was to the heir at law, and must be considered on that ground. If the devise is construed to pass a fee, it would be nugatory, because he would, without the devise, take a fee as heir at law, and then the other devises in remainder would be frustrated. But if the nature or quality of the estate is changed by the will, the devisee shall take under the will, and not as heir at law. Gilb. Dev. 110, 111, 112.  [**14]  The Court will not give a construction which will render the will nugatory, but such a one as will give an operation to every part of it.

Jenings, for defendant. The question is, whether the tract of land called Harwood, is devised to the son in tail absolutely, or whether he did not take a fee in the whole lands devised by his father, on attaining his age of twenty-one years.

They contend, it is an estate-tail, by considering the first part of the will; we say, that on considering the whole, and comparing the different parts, it appears to have been the testator's intent, to vest the absolute estate in fee in the son on his attaining his age, and that the limitations over in favour of the nephews, were only to take place on the contingency of his dying before that time.

Before we consider the particular clauses, the following rules of construction should be premised.

1. A will must be construed according to the intention, where the disposition is not to create an estate contrary to law, as to introduce a perpetuity of a real estate, or too remote a limitation of chattels. 1 Wils. 323, 324. 3 Burr. 1572, 1573.

2d. The intent of the testator must be collected [**15]  from the whole will, and not inferred from a particular clause; for if an estate in tail or in fee is given in one part of the will, yet if, by other parts, the intention appears to give a greater or less estate, that intent shall prevail. 3 Burr. 1623. 2 Raym. 1562, 1563.

3d. An heir at law, who is the son of the testator, shall not be disinherited, without a clear and manifest intention, and, therefore, if on the whole will it appear doubtful, he shall be preferred.

These rules may enable us to form a judgment on this question. They contend, that Harwood is a strict entail. We contend, that this and all other land is an entail, with a contingent limitation in fee to the son, on his attaining the age of twenty-one years; and that on his attaining this age, the absolute fee became vested, and the estate-tail was determined.

To make this an estate-tail absolute, particular words are pitched on as creating this tail, and that without regard to any precedent or subsequent expressions. But we consider the whole will. It is a will inaccurately framed, probably by the testator himself, who does not appear to have understood the legal import of terms; and it will appear that [**16]  he annexed the same idea to the words heirs, and heirs of the body, and that he meant to limit all, all his estate in tail, if his son died before age, and that all should vest in him in fee when he attained that age.

In the construction of wills, the strict meaning of technical terms is not the rule of exposition. But the inquiry to be made is, in what sense did the testator use them?

That he meant to entail all his estate, if his son died under age, appears from the beginning of this will, if the beginning only is to be considered: "I give to my dear and well beloved son Robert Browne, and the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland, or elsewhere." These are words as full and expressive as possible; and if the matter rested here, and the will went no further, it is a strict entail in the whole.

The testator then proceeds to enumerate the lands, and first mentions Harwood, which he devises over to his brother's children. Then he mentions Abel's Lot; and in particularizing this, he mentions the devise to his son Robert, his heirs and assigns, and therefore it is said he gives a fee in [**17]  this, and an estate-tail in the other, called Harwood, to his son. It appears evident, that in the mentioning of these lands, the testator did not consider himself as making distinct subsequent bequests, but was only enumerating what he had before given. He could not have forgotten that he had just before given his whole real estate to his son in tail, and that too in the most comprehensive terms. This evinces that he used the word heirs, and understood it in the same light as heirs of the body, which is common with lay gents, who do not always carry the idea of heir to any but descendants.

To construe this a fee more than the other, is striking out all these words, "and to the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland, that is to say;" and the will must be read in this manner, "I give to my son all that tract or parcel of land," &c.

Words cannot be struck out of a will, but may be substituted. 3 Atk. 233. Nothing is more common, than for the word heirs to be controlled by other expressions, as in the common case of a devise to one and his heirs; and if he die without heirs of his body, it shall [**18]  limit the other to an estate-tail. For what reason? because it is apparent, from taking the whole will together, that the testator intended to pass an estate-tail, and it is immaterial whether explanatory or controlling words are mentioned before or after, so as the testator's meaning can be collected; and a particular estate devised may be enlarged, to comply with the intent. 1 Burr. 38. 51, 52. 2 Atk. 578. 580. 2 Burr. 1106. 1112. 3 Atk. 624, 625. 2 Wils. 322. Fost. 58.

That the testator intended Abel's Lot to be as much an entail as Harwood, is apparent not only from the first expressions, but from subsequent ones, where he says, "if he should die, &c. without wife, issue or will, that then all and singular the before-mentioned personal and real estate to my said son Robert bequeathed, to go to my brother James Browne's children." And this shows he did not mean to give any other or greater estate in Abel's Lot than he did in Harwood, and that both were to go over on the same contingency; consequently, that he used the words heirs in the latter, in the same sense as heirs of the body in the former. This is further evident, from the devise of the personal estate, which he gives [**19]  to his son, his heirs and assigns, and which he devises to go over also, if his son dies without issue or will; for if by the word heirs, he intended to give a fee in Abel's Lot, and an absolute property in the personal estate, he must know that a devise over would be inconsistent with this intent. Further, this devise of the personal estate, shows he did not know the legal import of the term heirs, for if he did, he must know that personal estate could not descend to heirs; he must also know that such a remote limitation of personal estate would be void. From the whole, it plainly appears, that Abel's Lot is as much entailed as Harwood. For considering it without the first expressions, and it is no more than the common case of a devise to a son and his heirs, and if he dies without issue, then over to his nephews, so that the testator could not mean his dying without heirs generally, but without issue of his body. This case, which so frequently occurs, justifies the former remark, that people often use the word heirs to mean descendants only. And it is plain that the testator must have used the word heirs in this sense. Would any lawyer say the contrary, if the question was put as [**20]  to the words "I devise Abel's Lot to my son and his heirs and assigns, and if he dies without issue, then over?" If he had said the land shall not go over if my son attains the age of twenty-one, it would have been clear. It is the same thing, if by construction the meaning may be collected. 2 Burr. 920.

As it appears clearly that the whole was entailed, it is then to be considered, whether this was an absolute entail to remain at all events, or if it was not to be defeated on some contingency, and what; and it must appear, from considering all parts of the will, that it was only to remain until the son came of age, and at that period the fee vested in him.

This is plain from the words of the will. The testator throughout manifests the clearest intention, that if his son attained his age, he should have a power of disposition, and that he did not intend any part of the estate should go over to his nephews in case of this event. Indeed, this intent is not only to be inferred, but it appears to be absolutely expressed.

It is plain that the personal and real estate were to go over on the same event. There cannot be the least doubt, but that he had a right to dispose of [**21]  his personal estate on attaining his age; but then this inconsistency follows, if the disposition of one is good and not of the other, then one would go over and not the other, contrary to the express declaration of the testator. 1 Wils. 165, 166.

Again, "If my son Robert should marry before he cometh of age, and should have no issue during his nonage, and should die and depart the world before he is of ripe years to dispose of his land before bequeathed, this not to hinder his wife from the enjoyment of the personal estate, nor from her lawful dowry in the before-mentioned lands, during her natural life." Here is an express declaration, that the testator meant to give him the absolute disposition, on his attaining his age, and it is twice repeated.

The testator had two objects in view; to make a provision for any wife his son should marry, if he died under age, and to give him the estate absolutely, if he did attain his age. He makes no provision for the wife, but eventually on his son's dying under age. If of age, he leaves it to himself, as he had given him a power of disposition. That is, my son will have my estate to do what he pleases with it, on his attaining the age [**22]  of twenty-one. He may then provide for his wife as he pleases, and in that case I do not intermeddle but as he may die before, I will make a provision for her on that event, thinking she would have no dower in an estate-tail. Again, in enumerating the particular circumstances, he mentions his dying without will, an expression denoting his intent of giving him a power to dispose. If the estate was entailed he could not devise.

The meaning of the will is plainly this: If my son dies unmarried, and under age, then the estate to go over; if he dies married, and without issue, then to go over subject to the provision I have made for the wife; but if he attains his age, or has issue, then he is to have the fee. 2 Burr. 920. 923. 1 Burr. 38, 51, 52. 3 Burr. 1618. 1622, 1623. 1625. 2 Burr. 767. But if they do not regard the several expressions in the will to denote the testator's meaning, so as to explain on what contingency he meant the limitation over, then by the last expression in the will there is a fee devised in all, on account of the words, "I nominate and appoint my aforesaid son my whole and sole heir." That this will pass a fee, see Hob. 2. 1 Eq. Abr. 176. pl. 5.

Objection.  [**23]  The power of disposition relates to Abel's Lot and not to Harwood; and the words, "except what is before excepted," excludes that.

Answer. This exception has nothing to do with the limitations of the estate, but is only applied as to removing or changing the property.

The son was under age at the time this will was made, and unless the testator had given him a power to take his estate in possession during his nonage, a guardian must have been appointed; he therefore threw in words, at the time of giving him a right to take possession, meaning that it should not be construed to amount to empower him to dispose of it, or charge it during his nonage. This is the plain and obvious meaning of the clause: If the exception applies to the tract called Harwood, it will make that an immediate estate-tail in the nephews, and the son is to have nothing to do with it. The testator directs that his son, immediately after his decease, the aforesaid given lands and premises into his hands, possession and management to take, and without any removal or change of property to be made, the same to have, hold, possess and enjoy, and according to his direction the same to husband, &c. (except what [**24]  is before excepted.) If it applies to Harwood, then he is not to have possession of that tract. But that he did not intend to except the fee in Harwood from vesting, when the son attained his age, as well as in the other tract, is evident from the provision made for the wife.

It has been observed that the father has made no provision for any wife his son should marry, but on the event of his dying under age; but if he attains his age, as he would then have it in his power to make what provision he pleased, she is left at large, and from thence an inference may be drawn, that he meant to give a fee in the whole. So here, with respect to the exception, if the son attains his age, and this is construed an absolute limitation in tail, the wife, according to the testator's idea, could not have her dower in it, for it is plain, he thought she was not entitled to dower if his son died under age, and in that event he gives the estate to his nephews; so that if the wife is to have her dower in the whole, on the son's dying under age, and the son is not to have a fee in the whole on attaining his age, then the words are to be taken in a general sense with respect to the wife, and a limited [**25]  sense with respect to the son, on the event of his attaining his age.

The other part of their argument fails in its principle. It is contended that Harwood is entailed, but that Abel's Lot is given in fee; therefore, the power of disposing is to be confined to Abel's Lot, and does not extend to Harwood.

From their statement of the question, then, it appears, that if the whole is entailed, the ground of their distinction fails of course; for if the reason why he did not intend to give a fee to his son at the age of twenty-one in Harwood, is because it was entailed, then the same reason will hold with respect to Abel's Lot, for that is also entailed. The consequence of this is, that all the expressions in the will respecting the son's power of disposing are to be struck out, and are of no consequence. By our construction they all have force, and produce a reasonable effect, and such as a testator may be supposed to have in view. He considered that his son might die under age, and have issue, and in such case he could not dispose of his estate, though the issue should die; he therefore does it for him; but if he lived to have a disposing power, then he might do with it as he [**26]  pleased, and divide it amongst his children.

If the testator only meant to give this power with respect to Abel's Lot, he has used the most improper terms imaginable. He says, "I give all and singular the before-mentioned personal and real estate to my said son Robert bequeathed, over," &c. This is not the language a man would adopt, who only intended to give his son an absolute property in part. Is not Harwood bequeathed to him as well as the other? But to justify their construction, it must be supposed, that he derived no interest under the will in this tract; this is contradicting the will. The words giving a power of disposing, are nugatory, if applied only to Abel's Lot; for if that is a fee, he might of course dispose of it.

On the whole, it appears clear that the testator had two things in view, to point out in what manner his estate should go if his son died under age, if he attained his age to have it to himself; otherwise we strike out the words in the beginning and throughout.

Stone, for defendant. The son was the first object of the testator's bounty, and he intended to provide for his nephews in case Robert died under age and without issue. In the first [**27]  part of the will a fee-tail is given to the son, which was to be enlarged into a fee in case Robert attained the age of twenty-one.

The words, "all my estate real and personal," are very comprehensive and full, and cannot be confined to Abel's Lot, but must extend and take in Harwood. The words, "except what is before excepted," cannot refer to Harwood, but refers to his debts and funeral expenses. Unless such a construction prevails, the subsequent clauses are useless and signify nothing.

The case of Popham v. Bamfield, cited in 1 Vez. 26. is said to be wrong stated in Salkeld. For in that case it was not necessary to construe it an estate-tail, because the intention of the testator could be gratified without such construction.

The case of Edgar v. Edgar, Cowp. 379. shows that an estate created by express words, may be restrained by the intention of the testator.

A necessary implication is something not expressed, inferred from something expressed, which would be non-sense without the implication. 5 Brown, 278. The rule laid down in 2 Atk. 113. that where there is a devise in express words subsequent general words shall not extend it further than the natural meaning [**28]  of the preceding ones will do, is not applicable to the case under discussion.

No tenant can dispose of lands by will, except a tenant in fee. From whence it is clearly to be inferred, that the testator intended that Robert should take a fee, as soon as he was capable of disposing of it by will. And his providing for the wife during the minority of Robert, shows he intended the estate to be in fee after Robert attained his age; for he must have supposed the wife would not be entitled to dower, if Robert had died during the continuance of the fee-tail.

The rule in 2 Bac. Abr. 68. that where the devisee takes a particular estate of inheritance by express words in the will, such estate shall not be enlarged by implication, does not prevail now, and is contrary to common sense. The case put is but a possible implication and does not confirm his rule. In the construction of wills there is no rule to distinguish the case of a devise of an inheritance, from a devise for life, as to the creating of an estate by implication. Judges were formerly more strict in preventing estates going over from heirs at law by implication. 2 Wils. 6.

Martin, (Attorney-General,) in reply, was [**29]  stopt by the Court.  

JUDGES:
Hanson, J. and Goldsborough, J. a

a Harrison, Ch. J. did not sit at the argument. 

OPINIONBY:
Hanson; Goldsborough 

OPINION:

 [*118]  The Court (Hanson, J. and Goldsborough, J.) a determined that Robert Browne took an estate-tail under the devise mentioned in the will of Abel Browne, his grandfather, as stated in the special verdict, and judgment was entered on the special verdict for the plaintiff, for possession and costs.

a Harrison, Ch. J. did not sit at the argument.

 [*119]  The defendant appealed to the Court of Appeals, and the appeal was discontinued in that Court, at May term, 1787, by the appellant's counsel.