1 of 37 DOCUMENTS 

GORSUCH, use of TELFAIR, vs. JOHN HOLMES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 4; 1797 Md. LEXIS 13 

May, 1797, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of debt upon a Bail Bond given to the plaintiff, then being sheriff of Baltimore county, by Andrew Holmes, with the defendant as his security, for the appearance of the said Andrew before Baltimore county court on the fourth Monday in March in the year 1793, to answer unto Isaac Telfair (for whose use this action is brought) in an action on the case &c. The defendant pleaded payment, and issue was joined on the general replication, and the cause continued to October term 1796; at which term the defendant by his counsel, moved "the court to stay the proceedings in this cause with all the costs of suit to the plaintiff, inasmuch as the said suit is instituted on a bail bond executed to the late sheriff of Baltimore county, conditioned for the appearance of a certain Andrew Holmes, at the then next ensuing Baltimore county court, to answer unto Isaac Telfair in a plea of trespass upon the case, and so forth; and also because there is a suit now depending in this court to recover from the said Andrew Holmes the same claim on account of which the said bail bond has been forfeited."

This motion, after argument by the counsel concerned, was overruled by the court.  [**2]  

The defendant obtained leave and withdrew the plea of payment, and pleaded comperuit ad diem and comperuit ante diem. The plaintiff demurred to the first plea, and replied nul tiel record &c. to the other.  

COUNSEL:
Hollingsworth, for the plaintiff.

Robinson, for the defendant.  

OPINION:

 [*5]  The defendant at this term relinquished his pleas and confessed a judgment a 

a William Osborn vs. William Jones.
This was an action on a bail bond, (Sec 1 Harr. Ent. 550, and 2 Harr. Ent. 449, for the declaration and pleadings) by which it appears that the defendant pleaded three pleas, 1st. Comperuit ad dicm; 2d. An offer to surrender the principal; and 3d. That an action for the same cause was brought in the county court. The plaintiff replied nul tiel record to the first plea, and demurred to the others--the first and last pleas were with drawn.
The demurrer to the second plea was argued by Cooke and Pinkney for the plaintiff, and by A. Hall and Key for the defendant, before S. Chase, Ch. J. Goldsborough and J. T. Chase, J. at October term, 1792.
S. CHASE, Ch. J. If any one is arrested in a case that is bailable, the sheriff is obliged by the statute of 23 Henry 6, c. 9, (1444) to take a bail bond, and he must take reasonable bail if tendered, or an action lies against him for his refusal.
The sheriff is the judge of the security, and he may take one or more.
The bond is for the indemnification of the sheriff, and for the benefit of the prisoner. The plaintiff is no ways interested in the bond until the forfeiture.
If the sheriff neglects to take a bail bond upon default of the defendant's appearance, at the return of the writ, he is liable to an action for an escape. If he takes a bail bond he is not liable to such action.
If the sheriff takes a bail bond the prisoner is thereupon discharged from the arrest, and he is in the custody of his bail, who may keep him in custody. Dalton's off. Sh. 517.
The sheriff in Great Britain is not limited to any sum in which he is to take a bail bond, he is to judge of it.
By the act of 1715, ch. 46, s. 3. In an action on the case where the damages laid are above 4000 lbs. of tobacco, if no declaration sent with the writ, the sheriff shall not require bail bond exceeding 8000 lbs. of tobacco, though damages be marked on the writ for a greater sum.
On return of the writ, and default of the defendant to appear, or give special bail, the plaintiff has his election either to accept an assignment of the bail bond from the sheriff, (which he is obliged to make by the statute of 4 and 5 Ann, ch., 16, s. 20) or proceed against the sheriff by amercement. The plaintiff is not obliged to take an assignment of the bail bond if the security is ever so good.
In an action on a bail bond forfeited, the bail can only plead comperuit ad diem. This is the only lawful condition.  5 Burr 2683, Harrison vs. Davies. 1 Crompt. 76.
If on suing the bail bond the prisoner is out of custody of the sheriff, I conceive he can never be again in his custody in virtue of the mense process in that action; and the sheriff would be liable to false imprisonment if he was to take him against his consent; and I apprehend that against his consent he cannot be surrendered to the sheriff by his bail, but they may keep him, and surrender him in court. The special bail may surrender the principal in court at any time admitted by the court, during the sitting of the court to which the scire facias is returned scire feci, or during the sitting of the court to which the second scire facias is returned Nihil. 2 Crompt. 81, 82.
There is a difference between manucaptors, (which are that the party shall appear at the day) and bail. 3 Vin. tit. Bail 493, pl. 11. cites Godb. 339. The defendant gave a bail bond to the sheriff, and before the day he rendered himself to the marshall, and held a good bar to the action on the bail bond. 3 Vin. Abr. 494, pl. 13, in margin, cites 2 Lilly's Prac. Reg. 254.
The COURT gave judgment upon the demurrer for the plaintiff.

 [**3]    

2 of 37 DOCUMENTS 

Charles Ridgely, of William, against William M'Laughlin.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 220; 1794 Md. LEXIS 11 

May, 1794, Decided 

PRIOR HISTORY:
 [**1]   THE chancellor, in this case, submitted to the general court the following statement for their opinion thereon, to wit:

Charles Ridgely, of John, a resident of Baltimore county, seised as tenant in tail of certain land, lying in Anne Arundel county, and purposing to destroy the entail, and bar the remainders, on the 18th of March, 1786, executed a deed indented of bargain and sale of the said land, in consideration of 5s. to his brother John Ridgely and his heirs; and the said John Ridgely, on the same day, executed a like deed for reconveying the said land to the said Charles Ridgely and his heirs.

The said deeds, being duly executed, were on the same day acknowledged before two justices of the peace of Baltimore county, and, within six months from their date, recorded amongst the land records of Baltimore county.

The said Charles Ridgely died about the year 1786, leaving his son Charles, an infant, his heir at law, and having devised the said land to his infant daughters Rachel and Rebecca, and their heirs, as tenants in common. The said devisees, on the 24th of April, 1787, by their next friend, filed a bill in chancery against their brother, the said Charles, his [**2]  heir at law as aforesaid, for the purpose of obtaining a decree for recording the said deeds amongst the land records of Anne Arundel county; the clerk of Baltimore county having previously, viz. on the 16th of April, 1787, endorsed each of them with his certificate, under the seal of his office, that the persons before whom the acknowledgments had been taken, were justices of the peace for the said county.

The said Charles, heir as aforesaid, having been summoned to answer the said bill, and having put in his answer by his guardian, a decree was passed by the honourable John Rogers, chancellor, "that the said deeds (describing them) be recorded among the records of Anne Arundel county, according to the prayer of the petition, and agreeable to the act of assembly in such case made and provided."

The said deeds were recorded amongst the records of Anne Arundel county, under, and in virtue of, the said decree.

Afterwards, viz. on the 9th of June, 1788, certain creditors of the aforesaid Charles Ridgely, deceased, filed a bill against all his children and devisees, who were infants, for the purpose of obtaining a decree to sell the lands to them devised, for the payment [**3]  of his just debts, his personal estate being insufficient. And in due course of proceeding a decree was passed directing a sale of the land, devised as aforesaid to Rachel and Rebecca, as well as the lands devised to the other children; no objection having been made, on account of the insufficiency of the aforesaid deeds to bar the entail and remainders.

By the said last decree, William M'Laughlin was appointed trustee for selling the said lands on credit, taking bonds with security from the purchasers. He accordingly sold the land devised to Rachel and Rebecca, unto Charles Ridgely, of William, the complainant in the present cause, and took his bond for the purchase-money; and the sale has been confirmed by the chancellor.

And now the said complainant, being advised that the aforesaid decree for recording the deeds was not authorized by law, and that the legal and equitable title to the land by him purchased, is in the aforesaid Charles, the son and heir of the aforesaid Charles Ridgely, of John, has filed his bill to be relieved from his purchase. And forasmuch as the decision of the chancellor, on the point of law arising in this cause will not be conclusive, even if there [**4]  shall be no appeal, he hath taken the liberty of stating the case to the honourable the judges of the general court, and of requesting their opinion,

"Whether or not the said Charles Ridgely, of William, on paying the purchase-money, and obtaining from the trustee aforesaid, agreeably to the directions of the decree, a deed, acknowledged and recorded agreeably to law, for conveying the land in question to him and his heirs, will be able to make out a good title against the aforesaid Charles, heir of Charles Ridgely, of John, the tenant in tail, or against those in remainder; in case an ejectment shall be hereafter brought against him by the said heir, or by any of those in remainder, on the failure of the issue in tail.     "A. C. HANSON, Chancellor." 

OPINION:

 [*222]  Opinion of the General Court.
"Having considered this case, and heard counsel thereon, we are of opinion, that the said Charles Ridgely, of William, on paying the purchase-money, and obtaining from the trustee aforesaid, agreeably to the directions of the aforesaid decree, a deed, acknowledged and recorded agreeably to law, for conveying the land in question to him and his heirs, will not be able to [**5]  make out a good title against the aforesaid Charles Ridgely, heir of Charles Ridgely, of John, or against those in remainder, on an ejectment being brought against him by the said heir, or those in remainder, or any of them, on the failure of the issue in tail.
"Samuel Chase,
"R. Goldsborough,
"J. T. Chase." 

3 of 37 DOCUMENTS 

RIDGELY, vs. CAREY, Executor of M'KENNA.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT, COURT OF CHANCERY 

4 H. & McH. 167; 1798 Md. LEXIS 13 

May, 1798, Decided 

PRIOR HISTORY:
 [**1]   THE bill in this case, (filed on the 24th of July 1797,) stated, that the complainant, some time in the month of December 1796, entered into a copartnership with Parkin and M'Kenna and Jacob Franks Levy, for the purpose of a trading voyage to the West Indies on their joint account. It was stipulated that the complainant should go to the West Indies as supercargo, and part owner, and superintend the sales, and also purchase a return cargo. That the said Parkin and M'Kenna were to be the agents, and make sale of the return cargo for the use, and on the joint account of the said concern, whenever the said voyage should be complete and at an end. That in pursuance of such agreement, the said copartners did procure a schooner vessel called The Nancy, of the burden of about 800 barrels, and had the same laden on their joint account; that is to say, the complainant was one third part interested, the said Parkin and M'Kenna one other third part, and the said J. F. Levy the remaining third part. That the complainant, in the said month of December, departed from the port of Baltimore in the said schooner called The Nancy, and did proceed to the West Indies, where he made sale of his outward [**2]  bound cargo, and did invest the proceeds thereof in coffee, for the joint account of said parties, with which the complainant returned in the said schooner, to the port of Baltimore, where he arrived about the 29th of April 1797, and did deposit the said vessel and return cargo in the hands of the said Parkin and M'Kenna, as agents for said concern, to make sale thereof for their joint account. That the said Parkin and M'Kenna did accordingly, as agents for said concern, in the month of May 1797, make sale of said cargo, the net proceeds whereof, after deducting charges, amounted to $ 36,651 71. That the said sales were made on credit, (except a small part,) and negotiable notes, due at different periods, were taken and made payable to the said Parkin and M'Kenna only. That it was agreed between the said copartners, that if any loss should arise by the non-payment of the said notes, or the insolvency of the drawers thereof, that such loss should be equally sustained by the parties in proportion to their respective shares of said adventure; and that the money arising from the said notes should be divided among the said parties, from time to time, as it should grow due and be collected;  [**3]  and to ascertain each party's share, the said Parkin and M'Kenna did give to the complainant, and the said Levy, their own notes for their respective shares, payable as the notes for the said sales should become due, and which said notes were to be returned to the said P. & M. in proportion as they collected the proceeds of the sales of the said cargo, and divided the same among the partners--And it was also the express agreement between the complainant, and the said P. & M. that the said notes, so given to the complainant, and which were only given to designate the amount of the complainant's share of the said cargo, and as a security for the same, should not be transferred or negotiated by the complainant, or converted by him to any use whatever, but to be returned again to said P. & M. from time to time as they collected the proceeds of said cargo and divided the same--and that no final settlement was to take place respecting the said voyage till the whole amount of said cargo had been collected, and each partner in the mean time was to run the risk of loss from bad debts in proportion to his interest in said adventure. That the said P. & M. have both departed this life, but the [**4]  said M. was the surviving partner. That before their death they did receive and collect the sum of $ 16,050 97, from the said sales of said cargo. That at the time of their death there remained due for the said cargo notes to the amount of $ 20,600 74. That Francis M'Kenna, surviving partner, made and executed his last will and testament, wherein he appointed James Carey executor, &c. That the said Carey, as executor, has received the sum of $ 6,920 19 arising from the said notes, and there still remains due on account of said cargo $ 13,680 55, which the complainant expects the said Carey will receive from time to time as the said notes shall become due and payable. That the complainant hath applied to the said Carey for his third part of the money received on account of said cargo, according to the terms of the copartnership, and for a settlement of the same; but the said Carey hath refused to comply with the said request, alleging that the said P. & M. at the time of their decease, owed sundry sums of money to divers individuals on their own private account; and that by the testamentary laws of this state all creditors of a deceased person are entitled to a distributive share or [**5]  dividend of his effects, and that no priority or preference could be given to the complainant in the payment of his claim; although the complainant charges, and so the truth is, that the net proceeds of said cargo do not constitute a part of the personal estate of the said P. & M. and therefore are not applicable by law to pay their private debts, it being copartnership property, and not the private property of said P. & M. And the complainant states, that he is entitled to his share of said adventure, and also to a settlement with the defendant, Carey, respecting the same, without any interference of the claims of the private creditors of the said P. & M.--Prayer for general relief, &c.

The Defendant, by his answer, admitted certain parts of the bill. He has no knowledge of any agreement about any loss which might arise by the nonpayment of any of the notes, or the insolvency of any of the drawers, or that the money arising from the said notes should be divided, &c. That he had been applied to by the complainant, &c. but he declined to comply with such request, being advised that the complainant was only entitled to a rateable proportion of the assets, which the defendant believed [**6]  would be greatly inadequate to the discharge of the debts due by the said P. & M. And being also advised, that if the complainant ever had any lien on the said cargo, or the sales thereof, for his interest therein, that he had parted with, and relinquished such lien, by authorizing a sale thereof to be made by the said P. & M. and taking and holding their negotiable promissory notes for the supposed amount of such interest in the cargo aforesaid, thereby creating the relationship of debtor and creditor, and consequently retaining no other claim than such as must be in common with the other creditors of the said P. & M.--And being also advised, that it was wholly immaterial whether any agreement had been made that the complainant should refund or abate from the notes given by the said P. & M. to him, for the supposed amount of his interest in the sales, for his proportion of any loss on the cargo aforesaid, as the complainant would be compellable at law or in equity to return whatever excess he might receive under a mistaken conception of his interest in, or the value of the said cargo; and that the complainant, having elected to make the said P. & M. his debtors, that he could no longer [**7]  consider them as trustees, or pursue in specie the said cargo, or the proceeds of sale thereof, to the injury of the other creditors of the said P. & M. more especially as the said P. & M. had during their lives collected $ 9,752 of the proceeds of the sale of the said cargo, and employed the same, and the same never came to the hands or possession of the defendant; and that the complainant, if entitled to any preference, could only be entitled to demand from the defendant a preference in proportion to his interest in $ 20,600 74, the sum due and remaining from the sales of the said cargo at the time of the death of the said P. & M. first deducting therefrom the amount of the complainant's proportion of duties. That the defendant hath not assets sufficient for the payment of the complainant's demand, if this court shall be of opinion that the complainant is, under the circumstances stated and disclosed, entitled to payment of his claim in preference to the other creditors of the deceased, and before the expiration of the time limited by law for the exhibition of claims against the estate of the said P. & M. and without notice to the other creditors of the said P. & M. to shew cause [**8]  against such preference to the complainant's demand.

Admissions of the parties. That the complainant, before the death of the said P. & M. received on account of his part of the money arising from the sale of the coffee in the bill mentioned, and on account of part of the notes given by purchasers, the sum of $ 2,860 99; and that no more than the said sum hath been received by the complainant from the said P. & M. or from either of them, or otherwise, on account of the said coffee; and that there remains due to the complainant, from the said partners, the whole of his share amounting to $ 13,651 24, deducting the aforesaid sum of $ 2,860 99, and deducting also his proportion of duties. That this admission shall be considered by the chancellor to have the same effect and consequence as if the bill and answer were amended for the purpose of stating the facts herein stated.

HANSON, Chancellor. [October term, 1797.] "The said cause being submitted, the bill, answer, exhibits, depositions, and all other proceedings, were by the chancellor read and considered.

As this appears to be a case of the first impression, he cannot but regret the want of arguments from the counsel [**9]  on both sides to assist him. He can find no decision which applies directly to this case; but he conceives that there is a sufficient analogy between it and cases of bankruptcy, and real assets, to enable him to form a just opinion. Indeed, the general principles of this court, which adopts substitution; contemplates trusts where none were originally intended; and, in short, does every thing not injurious to others, which appears necessary for doing justice between the parties to a suit, are favorable to the present complainant; whose application is, in effect, only for the purpose of obtaining justice, by pursuing the notes, arising from the sale of his property, and taken in the name of his agents, instead of his own.

It is certain that if the transactions, stated in the bill, and admitted in the answer, between the complainant and deceased partners, had never taken place, the creditors of those two men would not have been in so good a situation, as they will enjoy, after relief shall be granted to the complainant. How then can it, with reason, be said, that the relief will be injurious to those creditors?

Again--The defendant insists that the complainant ought to be on [**10]  a footing with the other creditors, because he received for his share of the produce of the cargo the notes of the deceased, payable at the periods fixed for the discharge of the notes given to them by the purchasers of the cargo. But who ever intended, or supposed, that by taking a bond, or note, he should lessen the security he had before? Taking all circumstances into view, it is manifest that the object of the complainant in taking those notes, and the deceased in passing them, was merely to ascertain the share of the complainant in the proceeds of the sale. The passage of those notes, cannot, on any sound principle, make a difference in the case. The relation of debtor and creditor would have existed as well without them as with them; and, in fact, they only answered the purpose, for which they were intended, of ascertaining the complainant's share; and had they all been negotiated, and the deceased compelled to discharge them, the effect would only have been to prevent the present claim of the complainant; except indeed, that in case there shall prove to be any loss of the money still due from the purchasers, the defendant would have a claim against him; and except that there [**11]  would be a claim against him on account of duties.

That the deceased received the money on part of the notes, can make no difference in reason and justice--enough is left for the purpose of the complainant; and the assets for other creditors are the same, whether the deceased collected the money on that part, just before their death, or left it to the executor to collect; nor is it material to the creditors, whether the complainant obtains his share by taking the whole of some of the notes, or by taking a part of each note, provided that he sustain a proportion of any loss which may eventually take place. Had all the money been collected by the deceased, the complainant would indeed have been on a footing with other creditors, because there would be nothing specific to pursue. Let the case be compared to that of a man who sells land, and conveys it before the consideration is paid--If the buyer dies without having disposed of the land, and it is sold under a decree of this court for the payment of his debts, the original vendor is entitled to be paid before other creditors. But, if the deceased had conveyed to another purchaser, the original vendor is on a footing with other creditors,  [**12]  with respect to other lands left by the deceased.

Upon the whole, it is this, &c. adjudged, ordered and decreed, that the defendant, James Carey, as executor of Francis M'Kenna, shall bring into this court to be paid, or pay to the complainant N. G. R. the sum of $ 6,570 90, which is the proportion the complainant is entitled to receive of the money already paid by the purchasers of the cargo, deducting the money he hath already received, according to the admission filed, amounting to $ 2,860 99. And likewise, that when the defendant shall receive the money, or any part of the money still due from the purchasers, amounting to $ 4,248 27, he shall bring in or pay as aforesaid the complainant's just proportion thereof, which will be to the whole to be received as $ 13,617 24 is to $ 36,651 71.

If the whole of the notes shall be collected, there will be due to the complainant, for his just proportion aforesaid, the sum of $ 1,578 24, which with the aforesaid $ 6,570 90, and the $ 2,860 99 admitted to have been received by the complainant, amount to $ 11,010 13, the sum which the complainant was entitled to out of the proceeds of the sale, after deducting the duties, which were [**13]  $ 7,017 20.

PETITION by the defendant for a rehearing, (filed 22d November 1797,) stating, "he conceives himself aggrieved by the said decree, inasmuch as the said decree having passed without argument, the defendant may be exposed to suits as executor aforesaid, and collusion may be imputed to him in acquiescing in the said complainant's claim. That by the said decree the defendant is directed to pay to the said complainant divers large sums of money to discharge the claim of the said complainant, without regard to the assets which have or may come to hand, and the debts due by the deceased; and which claim the defendant is advised by the rules of this court and of law, ought only to be paid pari passu with the other debts of the said Parkin and M'Kenna.

The defendant humbly conceives, that upon a rehearing of the said decree, he will be able to satisfy the chancellor that the decree as passed, ought to be changed and altered. That whatever may be the ultimate determination of the said cause, the defendant is anxious to have the same fully and justly argued and investigated, and and doth not desire a rehearing for any purpose of delay or procrastination. He therefore prays [**14]  that a day to be assigned and appointed by the chancellor for rehearing and arguing the said decree, may be fixed, and he will, &c.

Winchester, for the defendant, observed, that he conceived that a rehearing of the decree referred to in the petition would be just and proper. He begged leave also to add, that at the time of the submission of the bill, answer and exhibits, in the cause, without argument, it was the impression and expectation of the counsel for the defendant, that if any doubt or difficulty should arise with the chancellor, and the same was communicated, that a day would be fixed and assigned for the argument thereof; and that the principles of defence assumed by the defendant, in his answer, would in case of doubt afford an opportunity for that investigation; and the object and intention of the submission was only to prevent delay and expense. That such decree as may be passed after argument would be satisfactory to the defendant and the creditors, while a decree passed without argument, and having the appearance of an admission of the said claim, would probably produce new suits, and delay the final close of the administration. He flattered himself that he should [**15]  be able to shew, that by the decision in chancery upon the facts stated, the complainant is only relievable as a creditor, and that no specific right exists in him as a partner, or against the defendant as a trustee.

HANSON, Chancellor. The petition of the defendant, relative to the decree in this cause passed, was by the chancellor read and considered.

It appears to the chancellor, that notwithstanding the very short lapse of time since the institution of this suit, the defendant has done every thing which might reasonably be expected from him, to have the cause decided on its merits. He has indeed concurred with the wishes of the complainant to obtain a decision, without delay, which would have been extremely inconvenient to the complainant, without the least advantage to the other creditors of the deceased; and, in so doing, he appeared to the chancellor to have acted the part of an honest, ingenuous, humane person. But so far was he from admitting the complainant's claim of a lien on the notes, given by the purchasers of the cargo, which remained undischarged at the time of the testator's death, that he expressly denied, in his answer, the equity of the said claim, and [**16]  asserted positively the right of the other creditors.

The first intimation which the chancellor had of the existence of this suit, was received in the following manner: Three days before the date of the decree, the papers were laid before him, as ready for a decree. As the cause was not inserted in the list of causes, regularly set down for hearing, and marked "submitted," he certainly would not have proceeded to a decree if he had not found amongst them a positive submission, signed by the counsel on each side, which he could not consider otherwise than equivalent, in all respects, to a submission, on a regular calling in term time, of the list of causes set down for hearing at the preceding term.

No term of general use in the proceedings of this court is perhaps more generally understood than the term "submitted." It means, that the parties leave it to the chancellor to determine without argument. Like other terms indeed, it may be modified, or qualified by concomitant words, such as "submitted" on notes of the counsel "filed" or "to be filed." But never yet was the term "submitted" in this court, without such modification or qualification, understood to mean otherwise [**17]  than that the party or parties who "submitted" dispensed with the benefit of argument.

The practice of the chancellor on the submission of causes, is generally known--He proceeds to examine the papers; if no doubt or difficulty occurs, he decrees without hesitation; if a doubt occurs, and he does not think proper to investigate the point without the aid of the counsel's argument; or, if on investigation, the doubt remains, or he thinks it more safe and prudent to learn in what light it strikes the counsel, he then lays aside the papers, and notifies the counsel of his desire to have the cause argued.

In the present case a doubt occurred on reading the bill and answer. He proceeded to an investigation, and the doubt vanished. He then framed his decree, in which the principles of his decision are explained; and the defendant is directed to discharge the complainant's claim, partly out of the money which he has received since his testator's death on the notes which remained due at the death, and in which the chancellor conceived the complainant had a just right, and partly with the money, still to be received, on the notes remaining undischarged.

Now, supposing the chancellor [**18]  to hear an argument of the case, and to retain his opinion, he does not perceive in what respect the defendant's situation will be better than it is at present; he will remain liable to every suit which may now be instituted against him, and he will be no more entitled to the protection of this court than he is at present. Let it again be repeated, that the cause has been decided on its merits; and that the defendant in his answer insisted on every thing which could fairly be urged in behalf of M'Kenna's creditors. For it is not even alleged that the amount of the complainant's claim is exaggerated, and it is only that which is called a preference that is complained of.

It would seem from the representation of the defendant's counsel, that a submission does not mean a waiver of argument by the parties or their counsel, but only refers the papers to the chancellor, with a view that he may suggest the points on which the decision is to depend. A very little reflection will satisfy, either that this cannot be the meaning of a submission, or that a submission is always improper. Suppose then that a submission does not authorize the chancellor to decree without argument, but only to [**19]  suggest points; and if the counsel are at liberty afterwards to make other points, what is the effect of the chancellor's investigation, but to aid the counsel, or to give his mind a prepossession, or to expose him? If the counsel are not thus at liberty, is it not obvious, that if the true points should escape the chancellor the submission will have operated to defeat justice? In fact, the danger would be greater in the latter case than if the submission precluded the counsel from argument; for if that were the case, the chancellor might be expected to be far more careful in his investigation. In short, if a submission did not authorize the chancellor to decree without argument, or if after a submission and decree without argument, the counsel were considered to be as fully entitled to argue the cause as if they had not submitted, the chancellor would never again accept a submission. He knows a little of human nature; and he must be more than man, if he be not far more likely to form a just decision, after hearing the arguments of ingenious and learned counsel on each side, than to retract an opinion given before he had the assistance of those arguments.

The chancellor has been [**20]  thus full and explicit, because he feels himself called upon by the present application, either to justify his proceedings, or renounce his error. He wishes all the practitioners in this court to consider these remarks, and to weigh well the immediate effect, and the probable and possible consequences of the submission of a cause.

After all, the chancellor, under all the circumstances of this case, thinks proper to comply with the prayer of the defendant's petition; and it is accordingly adjudged and ordered, that this cause be reheard, and stand for hearing at the time fixed in the beginning of the present term for the hearing of causes." 

COUNSEL:
The cause came on for argument before the chancellor at this term, May 1798.

Winchester, for the defendant. This cause having heretofore been submitted, and the chancellor having expressed his regret that he had not been furnished with the arguments of counsel, in the decree passed at October term; the increased probability of a great deficiency of assets to satisfy the debts of the deceased; the uneasiness of many of the creditors; and the solicitude of the executor that his conduct might be such as not only to secure him from loss,  [**21]  but censure; occasioned the application for a rehearing, which the chancellor has been pleased to order.

Strongly as the defendant's counsel was of the opinion, that the complainant's case was not sustainable, he confesses his confidence shaken by the opinion already given; but well knowing that the liberality of a great mind will examine its own decisions with all the severity which justice requires, he ventures to make some observations upon the case, in the same manner as if no decree had passed; and only hopes, that their prolixity, and the triteness of some of the remarks, will be excused on account of the importance of the sum in contest, and the principle to be established.

The facts in this case, so far as they are material to the decision, appear to me to stand thus:--Parkin and M'Kenna, Levy, and Ridgely, enter into a limited partnership, to wit: a joint adventure from Baltimore to the West Indies. Ridgely was to go supercargo, and have the direction of the voyage, until the vessel and cargo should return to Baltimore. It was expressly agreed, that the return cargo should immediately, on its arrival, be delivered to and sold by Parkin and M'Kenna, and accounted [**22]  for to Ridgely and Levy, for their respective proportions, after the amount of sales should be received. Pursuant to this agreement, Ridgely delivered the whole return cargo to P. & M. (who had purchased Levy's share.) They sold the cargo, and took negotiable notes in their own name, but which are sufficiently identified to be the notes taken for this cargo. P. and M. executed notes to Ridgely, for his share, payable at the same periods as the notes received by them would fall due. Part of the notes received by P. and M. were paid, and part remained unpaid at the time of their deaths. P. and M. entered the cargo, gave bond in their own names for the duties, which have since been paid.

In considering this case my arguments will be reduced to the following positions:

1st. He who stands in the simple relation of creditor to another can have no relief which is not common to all the creditors.

2d. A person seeking a preference against the estate of a deceased person, must be entitled on the ground of a written security, from the usages of trade, or by operation of law.

3d. The right to demand the possession of specific property, or its product, depends upon the circumstance,  [**23]  that he who demands the possession of such property was the exclusive owner and possessor thereof, not having parted with the right, or made any special agreement relinquishing absolutely, or impliedly, the right to pursue that property or its product.

4th. Copartners in general trade, or a particular adventure, do not, as such, acquire the relations of debtor and creditor; but that relation is created whenever the adventure ends, and a balance is struck and promised to be paid, or any special agreement intervenes on which a legal remedy can be had.

If these principles are correct, as I shall endeavour to establish previous to the application of them to the facts in this case, it will not be difficult to shew that the complainant's claim is not tenable.

1st. Position.--This proposition is so clear, that to state is to prove it, but is important to mention it from its connexion with the other principles, and the conclusions which will be drawn in its application.

2d. Position.--Independent of the protection afforded to this principle by the general policy of our testamentary laws, whose primary object is, to level all debts, it is grounded on the first principles [**24]  of justice; and the general maxim that equality is equity is more strongly and justly applicable here than in ordinary cases. Commerce has its basis on credit--Credit results as much from the possession of goods of which merchants are the apparent owners, and bills or notes shewn in their own names, as from good conduct and real wealth. On these grounds commercial confidence is acquired. What destructive consequences would not result from discriminating the nature of debts, and permitting to the party himself to secure, or deducing legal consequences which should secure, a preference to a particular description to the exclusion of others? It is to guard against these consequences that our insolvent acts interdict, under such severe penalties, the creating of preferences by the party. It is with the same view that our testamentary laws prohibit executors or administrators from giving a preference under the penalty of a devastavit. It would therefore seem, that a case which is bottomed on principles destructive of commercial faith, opposed to the general principles of equity, and subversive of the general policy of our laws, is not entitled to any favour. No person can be deemed a creditor [**25]  but from some valuable thing given or loaned. The meritorious nature of some species, of some considerations, are such as to justify securing a reimbursement, and this may eventually amount to a preference. As in the cases of a loan of money to establish a house of trade, or the gift of the use of a capital for a limited time to support its sinking credit, it is proper to secure a repayment or return of the thing, or its value. The law therefore permits its being secured by mortgage, or other written engagement tantamount to a mortgage, and this security could not be effected by a subsequent insolvency. This no policy opposes--It is founded on principles necessarily resulting from property.

When a party possessing property refuses to comply with his engagements, suffers himself to be sued, and the issue of a suit determines the justice of the claim against him, it would be the height of iniquity to say, that no recourse should be had to the delinquent's property. A lien is therefore created by operation of law.

The usages of trade also, on principles of general benefit, create liens in certain cases. As it will be attempted to bring the complainant's case within some of these [**26]  cases, let us discriminate them with precision.

The first case is that of a factor who has a lien on any property of the principal in his hands for securing disbursements on such goods or a general balance--2. Burr. 936. In this case it is obvious, that the lien was originally introduced to avoid circuity of action, and from analogy to the doctrine of set off.

The next case is that of a manufacturer who has a lien on the goods in his hands for the value of his labour, &c.--1 Atkyns, 235. 4 Burr. 2214.

These decisions are grounded on the effect of a bailment for a special purpose, by which the bailee acquires a special property, and which can only be defeated by payment of the debt.

The next case, in which may be indiscriminately classed inn-keepers, carriers, &c. depends on the common usage in their favour. It is apparent that liens are in these cases exclusively against the owners of goods, but I admit they apply e converso in his favour against any person whom he can make out to be his bailee or trustee.

I also admit, that the claim of the complainant rests on a commercial transaction, but the usage in favour of his claim is denied, and it is not proved.  [**27]  But admitting it in the same manner as if the usage existed and was proved, (which are denied,) I insist, that wherever any special agreement intervenes upon which the party in possession of property or its proceeds promises and becomes bound to pay, the special agreement excludes the effect of usage and precludes any lien. As in the case of Brenan and Currant, Sayer's Rep. 224--A farrier, who agreed for a stipulated sum to cure the plaintiff's mare, which he performed, but refused to deliver her up until paid--it was adjudged that the special agreement superseded the right which the law would otherwise give to retain, and that his only remedy was by suit on the agreement.--S. P. 4 Burr. 2216, 2217. 2 Roll. Ab. 92, tit. Justification pl. 1, 2--See also 2 Term. Rep. 100.

Another exception to the application of the doctrine of liens, is found in the case where the possession and right are changed. This exception results necessarily from the nature of the right, and is implied in the very definition of the term--"Lien is a tie or hold upon goods or other things which a man has in his custody." There cannot therefore, in the very nature of the case, be a lien, tie or hold, on that [**28]  which a man has not in custody--for without custody there is no lien--2 Vern. 117. 1 Atkyns. 234.

Again--There is no lien where the particular transaction shews the parties intended there should be none, by adopting or substituting and looking to personal credit and relying on it.--4 Burr. 2223, the latter part of the case Green et al. vs. Farmer, per Ld. Mansfield and the court. And on this case I will now observe, with great deference, that the argument "that no person ever intended or supposed, that by taking a bond or note, he should lessen the security he had before," is extremely fallacious, for it is tantamount to saying, the law shall never operate on an act unless the parties intend it; whereas it is certain, that the moment an act is done, the legal qualities incident to that act take their existence, whatever the parties may suppose; as for instance, a deed may operate as a release or a confirmation, though the parties only intended or supposed it would act as a bargain and sale, and a variety of other similar cases which occur to the mind at once.

It is only incumbent on the defendant to shew, that the complainant's case is not within any of the general cases [**29]  of lien, or that it is embraced by some of the cases which form exceptions to the general rules.

It appears to me, that the only ground upon which the complainant can pretend a right to a preference, is on the ground of his original interest; and that the rights consequent thereto substantially remain after a sale where the proceeds can be traced. I shall obviate this ground under my.

3d Position.--I admit that the owner, and exclusive proprietor of goods, by confiding their possession to another does not part with the right. Possession of any kind, it is true, is prima facie evidence of right; but it may be precarious; as a deposit it may be criminal, as of a thing stolen; or it may be qualified as things in the custody of a servant, carrier or factor. The mere possession of a chattel therefore, neither gives or destroys title. The complainant, however, cannot deny, that when an owner voluntarily places goods in the hands of a factor for sale, and a sale accordingly takes place, the purchaser acquires an undoubted right; the property and possession both change. It is also unquestionable, that after a sale, and the property is converted into money, the first owner can only [**30]  be esteemed a creditor, and is entitled to no preference.

Before a sale, where the depositor or principal is the sole owner, he may pursue his property specifically; but that is only in the case where the depositor might have retained the possession himself, and where the precarious possession is derived from and held in trust for him. And in no case, where the person in possession has it as a part owner, or in virtue of an interest in such property, and in consequence of a special agreement, can any other person, having a less or even an equal interest with him in that property, pursue that property, or deprive him of its proceeds, and a fortiori the proceeds of sale cannot be specifically pursued.

Wherever two or more persons have a common interest, whether in equal or unequal shares, and one of them has the sole possession, that possession must either be lawful or tortious as it regards his cotenants; if lawful, it must be because of consent; and in such case, after the property is sold, the relation of debtor and creditor is immediately created, and the only remedy is by action of assumpsit for his share or interest, and in such action mutual demands may be set off; 2 [**31]  Burr. 936-7; for after such agreement the right to pursue the property specifically, if it ever existed, is gone. When there is no right to demand the thing, it would be superfluous to observe there can be no right to demand its product. Or, the possession is tortious, as being adversary to and in exclusion of his co-owners. Now in this case it is clear, that there is no legal remedy by which he could be ousted of this possession.--Salk. 290, Brown vs. Hedges--but if he sells, and receives the money, then the injured co-owner may have his remedy by action of trover, (Co. Litt. 200. a. Cowper, 375;) or he may wave the tort and have assumpsit for his share of the money.--Doug. 137, (132,) Longchamp vs. Kenny. Does not the existence of these remedies destroy the idea of a specific right? How are the facts? By common consent P. & M. had the entire possession of the cargo for sale--Their possession was rightful--Ridgely never could have deprived them of it against his own agreement and consent at law or in equity. He could not have followed the property. He cannot pursue the notes; for by his own agreement he was to receive his share in money (not notes,) at their hands. Why was this agreement [**32]  made? Because he looked to their personal credit. If he had not, each would have taken notes at the time of the sale from the purchaser for his share. What then was Ridgely's demand against them, and in what character? It was for a specific sum, when received by them, and in the character of creditor. And the whole transaction clearly proves, that Ridgely never thought he had any right to follow the notes taken by P. and M. in their own name with his knowledge; and also clearly shews, that when he took their notes to ascertain his share, he relied on their stability, integrity and credit, for the payment of their notes. Where then is any ground to establish a lien to the injury of other creditors? It is said his case is hard--but the case of every man, who is likely to lose money honestly due, is likewise hard.

It is in vain they claim the aid of a court of equity; for in cases of equity the hardship must be divided; and his right is only a legal one--See the case above cited in Roll. Ab. and 2 H. Blackstone, Slubey vs Heyward. That liens are clear legal rights--and with a remedy existing at law equity ought not to interfere, when the effect of that interference will be to swallow [**33]  up the estate for one creditor. If relief to the extent he now claims cannot be had at law, it is because lie is not entitled to it in justice, or from the usages of trade.

4th. Position.--The community of interest between partners during the continuation of that interest, greatly abridges the remedies which strangers have against each other. Their relation is sufficiently described by saying, that as partners they are not creditors of or debtors to each other. But when the partnership ends, and a specific sum is ascertained to be in one partner's hands belonging to the other, which he engages to pay, and which engagement the other accepts, his specific rights as a partner end, and the common relation of debtor and creditor is created.

2 Term Rep. 479, Foster vs. Allanson. The plaintiff and defendant had been copartners, but dissolved their connextion; an account was stated of a balance struck in favour of plaintiff which defendant promised to pay--Action of assumpsit was brought, and ruled to lie--S. P. Moravia vs. Levy, 2 Term Rep. 483.

So also if a partnership is dissolved when goods are on hand, and one partner is directed to sell them, and promises to pay, when [**34]  the money is received, the other's share, the partners who accept this promise lose all claim to the goods and their proceeds specifically, and can only have remedy on the promise--2 Burr. 936-7. The right to follow goods or their product specifically, being lost when a promise intervenes, in the same manner as a lien would by such promise be destroyed.--Sayer's Rep. 224. 4 Burr. 2216. Now, though the relation of debtor and creditor may be said to exist independently of such promise, yet, according to the principle of the case, Green and Palmer, in Burrow, it is the acceptance of, or reliance on that promise, or the credit of the promisor which destroys the specific right--And which is precisely the case of the complainant, who accepted the notes of P. and M. and relied on their credit.

Let us now examine the cases of real assets, and cases of bankruptcy, which are considered analogous to the present, and see in what they differ. The cases where arrears of purchase money have decreed to be liens on the land sold, do not appear to me to stand on similar grounds with this case. A bargain and sale must be for money paid, otherwise it is in trust for the bargainor. If an estate is [**35]  sold and no part of the money paid, the vendee is a trustee. In such cases therefore, from the foundation of the court of chancery, there must be a lien on the land itself, as the land is the trust fund, and that lien will be protected against a subsequent purchaser with notice. The lien springs from the sale which ipso facto creates a trust for arrears of purchase money; this trust like all others is modelled as justice may require.

But how different is the case of personal chattels? On the sale of the chattel there is no trust created. The obligation in law and morality is to pay the price.--The thing can never be specifically followed for its price. The very moment the sale is completed, the right is vested in the purchaser. A right to the price is vested in the vendor. In the hands of the purchaser himself, still less a third person purchasing with notice, it cannot be pursued. In every circumstance of the two cases therefore, so far from resembling, they are opposed. How destructive would it be to commerce if similar liens existed? But even in the case of land where act of sale creates the body of a trust, the lien and security are lost by agreements much less important than [**36]  those which took place between P. and M. and the complainant.

1. Eq. Ab. 142, pl. 14--The simple circumstance of taking a note for a part of the purchase money, by introducing a personal responsibility, destroyed the lien. This case is recognized in the late case of Fowell & Heelis, 1 Bro. Chy. 422, and is precisely the principle of the decision of Lord Mansfield in Burrow, and the determination in 2 Term. Rep. 100. Indeed, in all the cases where taking bonds and notes, &c. have not been held to destroy the lien, it has been owing to this circumstance, that some of the title papers have been kept back, or the estate was not completely assured to the vendee.

If so small a circumstance shall destroy liens in the case of lands, and there is, as the complainant's counsel supposes, any analogy between that case and the case of merchandize, the circumstance of the agreement that P. and M. were to sell, collect and pay, and executed their notes to the complainant for his share, by which, if they had survived their personal credit only, could have been resorted to, and neither the notes or property specifically pursued, proves conclusively, that P. and M's. death cannot entitle the [**37]  complainant to any preference against the executor of the survivor; nor is there, when fairly considered and applied, more force in the cases of bankruptcy, which have been considered, to favour the complainant's claim. The principle of these cases are found in the cases exparte Deeze; exparte Ockenden; and exparte Dumas, in 1 Alkyns.

As these cases in principle and facts are so nearly similar, I will only consider exparte Dumas, 1 Atkyns 232. S. C. 2 Vez. 582. It is briefly this--Dumas & Co. not long before the bankruptcy of Julian & Co. drew bills of exchange upon the Julians, with a particular order as to the account to which they were to be placed. They were accepted and promised to be placed as directed. Other bills were drawn to reimburse the first; the first bills were protested and returned, and the Julians became bankrupt; 580l. of the latter bills remained unnegociated, and were specifically claimed.

It is obvious that the great direct inquiry in that case, was on the fact, is the property changed? And the inquiry whether the bankrupts were trustees or factors to the petitioner? And the material questions were therefore similar to the leading question in this case.  [**38]  The petitioner's counsel did not pretend to claim for more than the unsold bills, and claimed to that amount only, on the principle that the property had never been changed; and the court only sustained a claim to that amount. Julians' never had any interest, or share, or concern, in those bills, on their own account. The whole belonged to Dumas, & Co. They were clearly agents and trustees. The possession of the property was exclusively derived from the petitioner. Julians' had no right to the possession independent of Dumas's consent. The property itself was specifically found; the ownership was in them; Dumas's had only a precarious possession.

But Ridgely was never more than a part owner with P. & M. They did not derive their possession from him, but had it as owners and in virtue of the preceding agreement. He could not, as I have before shewn, ever have deprived them of their possession. Against them therefore, supposing the dispute to have arisen in their lives, what was his remedy? By bill in chancery for account, and a decree for payment, or an action at law on their notes, or on the promise to pay when collected. Upon either of these remedies what would have been his [**39]  relief? A decree or judgment for a specific sum. He would then be a creditor for that sum. If during their lives, remedies existed against them only as debtors, and the complainant would only have been protected as a creditor. The circumstance of a death cannot alter their relation.

The case cited in Vezey and Atkyns, of a determination in the common pleas, that notes taken for sales might be specifically pursued, applies to a case where the facts must have been similar to those in Dumas & Julians; and the notes spoken of, Bank notes, which pass by delivery; for courts of law have no power to compel the endorsement of promissory notes, and otherwise the relief would be nugatory; for without an endorsement the promissor would not be justified in paying, nor could he be compelled to pay his note to any other than the party named in the note.

It would be unnecessary to multiply references to cases which have arisen under the English statutes of bankruptcy, for they are all similar in principle to the leading case of Dumas and Julian; are embraced and distinguished by my observations on that case; and are moreover subject to this general remark, that as the English statutes operate [**40]  only on the bankrupt's own estate, no question can arise unless the property be on hand specifically, or in notes taken in the name of the principal. But against the bankrupt's estate no creditor has any preference; and it is wholly immaterial whether his estate consists of money, or notes taken in his own name, being the amount sales of property of others; for it is only the property of another in the bankrupt's hands which can be pursued, and notes are not, and never were, the principal's property.

Liens created by the usages of trade, are to secure disbursements made on the credit of particular goods; and are very different from the leins which result from ownership. None of the first description embrace the complainant's case, for it is certain he trusted to the credit and stability of P. & M. He could not possibly have contemplated a security in the property which was sold with his consent. He could not have trusted to the notes to be taken from the purchaser, because they were authorised to take them in their own name, and could have negotiated or disposed of them at pleasure. He did rely on their own notes which he took, and on their commercial credit and character. The [**41]  complainant expressly states that he was to receive money, not a share or part of the property or notes; calculating on that, his case is within the determinations in Sayer, and 2 and Burrow, before stated. And I have before shewn, that as part owner he has no lien, because he could not have followed or taken possession of the property.

It is said, that the complainant's claim is more favourable, because he is only pursuing notes arising from the sale of his property taken in the name of his agents instead of his own. But I have already shown, that the facts in this cause are the reverse of those on which this reasoning would apply; for they were not to account as agents, they gave their notes as debtors. I admit, that on the principle of substitution, chancery contemplates trusts, to do justice where it cannot otherwise be obtained, though the parties did not think of a trust; but that can only be in the case where the parties have done no act to prevent the implication of such trust, for the trust can only be implied; and where that implication is rebutted by circumstances, which shew that personal credit, a special agreement, or the like, was relied on, the court would not [**42]  imply a trust, for the ground of implication fails. If, as he might readily have done, the complainant had negotiated the notes of the deceased, would there be any implication of trust in favour of his indorsee? Surely not. Yet the principle of substitution applies equally to such an indorsee as to the principal. The truth is, that in a case of this kind, the principles of substitution are analogous to the doctrine of liens; and where personal credit intervenes, neither is applicable. It is immaterial with what view the complainant took notes, whether barely to ascertain his share, or for negotiation, for the act of taking them destroys the implication in complainant's favour, and introduces new rights, and legal remedies, and that alone destroys liens and trusts--4 Burr. 2223; but the reasoning which goes to establish a right to a share in some, or to the whole of some of the notes, appears to me equally inconsistent with commercial policy and legal decisions.

The moment the notes were issued, a third person, the maker of the notes, became interested. He executed instruments, which from their form and general usage, imported negotiability; would pass from hand to hand in common [**43]  transactions nearly as money; and were immediately discountable. When negotiated they were unimpeachable. If at law or in equity other persons are admitted to shew themselves interested than those appearing on the face of the instruments themselves, there is an end to negotiable instruments; for on the very same principle that the complainant's right to a share in one note is conceded, he would become entitled to an injunction to restrain the payment to any other than himself--or if to the whole of one note, to a remedy for its recovery. Who would sign a note to be subject to such endless litigation as might be the result of contending claims and opposing interests? of endless bills of interpleader? Can there be different rules at law and in equity on this subject? Is there a clearer axiom than this--It is only the parties, or executors or administrators of parties, named in a note or bill of exchange, who can claim or be sued for money? Now what rational difference is there whether P. & M. in their lives had received the money on these notes, and no other could have received the money on the notes? or whether their executor, who to all intents and purposes represents them, legally [**44]  and equitably receives it? he receives the money in virtue of his office of executor, no other can receive it. He receives it as property which belonged to the deceased. It is conceded that Ridgely never could have pursued it against them, and it seems very strange, that if, during their lives, he could neither have prohibited their receiving it, nor have pursued it when received, that his rights should vary when the claim is against one who stands in their shoes. Nor is it true that the assets would be the same to other creditors if the money had been collected before their death as now, if the complainant succeeds against the unpaid notes; for it is acknowledged, that in the first case he must come in as a common creditor, and in the latter he claims a preference.

As to such parts of the notes as were collected by the deceased, the claim of the complainant must at all events sink to a level with that of the other creditors; for the complainant's claim is on the notes, or the proceeds of each note specifically; of those which remain he was only interested one third, and as his claim is specific, there can, upon no principle, be an extension of it because of his being a creditor.  [**45]  

If my principles are correct, that the relation of debtor and creditor was created, or even if that relation was not created, and independent of it a lien would have existed, that the special circumstances of this case prevent such lien; or, even admitting that under such circumstances as those existing in the present case, a lien would exist between a factor and a consignor, there can be no lien in any case between partners where one fairly possesses and sells the stock and gives his note or bond to the other for his share; and I think the strongest reasons of policy and justice, and the most solemn determinations support them. The complainant can only be admitted to come in, in common with the other creditors.

Ridgely for the complainant--Before I advert to the arguments of the defendant's counsel, it may be proper to state several facts, which have been established by conclusive proofs in this cause, more fully and particularly than the defendant's counsel hath done; there being some circumstances which are held material in the decision of the case, and which appear to have been totally omitted by him in his statement.

By the testimony of Levy, it appears, that a [**46]  copartnership was entered into between the complainant, Parkin & M'Kenna, and Levy, for a trading voyage to the West-Indies. Ridgely was to superintend and conduct the whole voyage, have a commission of 5 per cent on the sales of the outward bound cargo; and 2 1-2 on the return cargo; that the return cargo was to be consigned to P. & M. "as agents for the concerned." That they have received it "as agents by agreement," and have rendered an account, "of their agency" stating the said cargo to be sold on credit, for notes, "on account of the complainant, Levy, and themselves."

It also appears, that if any loss was sustained by the non-payment of the notes, it was to be borne equalby by all the parties interested. That P. & M. did give their notes to the complainant for his proportion, payable at the periods the notes to them for the cargo (and which they took as agents,) became due. That they were not to be answerable for the amount of notes so given by them further than they should collect from the sales of the cargo.

That no final settlement was to take place till the monies due for the cargo were all collected, and that each partner in the meantime was to run the risk in [**47]  proportion to his interest in the cargo. That part of the notes, arising from the cargo, were collected by P. & M. before their death, as agents, and that the residue hath been since received by the defendant, as executor of the surviving partner; the said notes (unpaid) being held by P. & M. at their decease, as agents for the whole, and at the joint risk though payable to them in their own name.

On the aforegoing statement of facts, several questions have been urged by the defendant's counsel, which will require both time and trouble to answer, arising more from their prolixity than from any other source.

1. The first position laid down by the defendant's counsel is, "that he who stands in the simple relation of creditor to another, can have no relief which is not common to all the creditors."

I shall agree with the defendant's counsel, that if the complainant, in the case before the court, founded his claim of preference on the ground only of his simply being a creditor of P. & M. in equal degree with others, that his claim is not supportable, and that the bill ought to be dismissed; for whenever it happens that all creditors are on an equal footing, equity knows [**48]  no priority, and makes no distinction. But the case before the court is far different, as I hope to demonstrate in the course of my argument.

2. I will now consider the second question--that "a person seeking a preference against the estate of a deceased person, must be entitled either on the ground of a written security, or from the usages of trade, or by operation of law."

In investigating this position, the defendant's counsel has blended subjects, as being illustrative of the question in debate, which are totally dissimilar in principle, and inapplicable in point of analogy. He premises his remarks with the observations, that "equality is equity"--"that commerce has its basis on credit"--that "credit results from the possession of goods, of which merchants are the apparent owners, and bills and notes, shewn in their own names, as much as from real wealth." "That our insolvent laws guard against creating preferences--that testamentary laws prohibit executors from giving a preference," &c.--And thence he would infer, that the present case is attended with some of the above circumstances, and "that a case bottomed in principles destructive of commercial faith, opposed to [**49]  the general principles of equity, and subversive of the general policy of our laws, is not entitled to favour."

The defendant's counsel hath certainly not attended to the facts in this case, as proved, or the objects of the complainant's prayer for relief, or he would not have pronounced that his case, if established, would prove destructive of commercial faith, opposed to the general principles of equity, or subversive of the general policy of our laws.

Let us see wherein the truth of this case consists, and what the complainant requires. It is no more or less than this--that in the event of bankruptcy or insolvency, where property is to be divided among creditors, that copartnership properly should be first applied to pay copartnership debts; and that private debts should be postponed to copartnership debts, when copartnership property constituted the only fund out of which payment was required. If this application had been made, to pay the complainant out of P. & M's separate property, either as a company, or individually, the observations of the defendant's counsel would certainly have weight. But what does the complainant seek for? only to be paid his claim against the [**50]  company out of the company's effects; that is, that the cargo held in company by the complainant, P. & M. and Levy, and its proceeds, (not converted and reduced into money) should not be considered as the sole property of P. & M. and divided among their private creditors, but that it should be first subject to the claims against the copartnership, then divided, and the dividend of P. & M. only subject to the claims of their private creditors.

That this is conformable to commercial usage, and agreeably to the rules which prevail in a court of equity, will be readily admitted, by adverting to the following authorities--2 P. Wms. 501. 2 Vern. 706. 1 Atk. 98. 1 Eq. Ab. 55. 2 Bro. Chy. 15.

Let us now see in what respect this case is bottomed on principles destructive of commercial faith, is opposed to the general principles of equity, or is subversive of the general policy of our laws.

Assertions are easily made, and are as easily denied; but to support positions that are contrary to universal and received opinions, and are opposed to establish authorities, it is requisite they should be attended with reasons that carry conviction to the mind. And let me ask, are not the [**51]  very vitals of commercial credit wounded if the complainant fails? Is it not admitted, on all hands that the fund, out of which we pray relief, was partnership property.

If then the private debts of P. & M. are to be paid out of this company property, what person would risk his property in copartnership with another, if private debts were admitted to swallow up the company effects?

But it is urged, that credit results from the possession of goods, of which merchants are the apparent owners, and from notes, shewn in their own names, as much as from real wealth.

Credit and confidence, in general, result from the good opinion we have of the integrity and prudence of our debtors; and if the position advanced by the defendant's counsel is to have any weight, it would follow as a consequence, that whenever a factor died or became insolvent, all the property in his possession, of every description and kind, let it belong to whom else it might, ought to be devided among his, the factor's private creditors, he being in possession and consequently apparent owner.

It is said, that our insolvent laws guard against preferences; it is true, and I admit the application of the [**52]  rule in its full force, when the private effects of an insolvent are to be divided among his private creditors in equal degree. But if the insolvent retains effects in his hands as a factor or trustee, and belonging to others, or holds copartnership effects, our insolvent laws do not say that property or debts, under such circumstances, are to be distributed among such insolvent's private creditors; the restrictions contemplated by our insolvent laws, embrace only the private property of the insolvent, not property held by him either in trust, as agent or as copartner, except his own share, after the copartnership debts are paid. The trustees of an insolvent have no power over such kind of property.

It has been observed, that our testamentary laws prohibit executors from giving preference among creditors, under the penalty of a devastavit.

How, let me ask, can the case of a deceased person, whose private property is to be divided among his private creditors, be compared to the case before us? The complainant does not require to be paid out of P. & M's. private assets, he claims a preference out of the copartnership property; and if that was not sufficient, he would then be [**53]  on an equal footing for the balance, with the other creditors of P. & M. Was it so known, that an executor of one copartner was justified in applying the property or debts of a company to satisfy the private claims of the deceased? How then can the insolvent or testamentary laws of this state be wounded by a decree in the complainant's favour when his case is no ways analogous? And can it be said that the general principle equity is opposed to his claim, when it is admitted on all hands, that the fund out of which he seeks payment would have been his own exclusively, as surviving partner, if the coffee had not been sold, or if it had been sold, and no notes had been taken from the purchasers for the amount? For the account of sales rendered and filed in this cause ascertain the fact that the cargo was sold, on account of "the complainant and others, the copartners."

Would it not be contrary to the general policy of trade, and repugnant to justice too, to say, that A. B. & C. should be paid out of property belonging to D. in E's. hands, as agent or factor, because E. was indebted on his private account to the said A. B. & C? Surely it would.

The defendant's counsel hath stated [**54]  a case or two, where preference is admissible even by the bankrupt laws; as for instance--"a loan of money to establish a house of trade, may be secured by a mortgage or written engagement; but this rule only applies to creditors of a bankrupt, pari passu."

A case is instanced, when an execution is issued against a person, and his property seized, and it is called "a lien created by operation of law;" but let us enquire, suppose this execution was laid on copartnership property, for the private debt of one copartner, would a lien be created on the whole copartnership property in favour of the judgment creditor? I answer, No. Vide the cases, 2 Lord Raym. 871. Salk. 392. Cowp. 449. How then can it be contended, that the private creditors of P. & M. have an equal lien on the property of Ridgely, P. & M. and Levy, with the claimants, on the latter concern? If this doctrine could be supported, the creditor of one copartner, on a judgment, might seize the joint effects to satisfy his claims; for such would be the result of a decree, saying that the private creditors of P. & M. were equally entitled to be paid, as the complainant, for if this court should so decree, surely an execution [**55]  against P. & M. in their lifetime, would have equally affected this property; and that such doctrine is not admissible, the cases already referred to ascertain.

It has been urged, that whenever a special agreement intervenes it excludes the effects of a lien; and the case of a farrier, as reported in Sayer's Repts. 224, is referred to. If the decision of that case rested on a ground similar to ours, it might easily be ascertained, by adverting to the proofs in the cause, that the special agreement between the parties directly supports the complainant's case. What was it? That the notes taken by P. & M. were to be held by them, at the joint risk of the concern. That the notes given by them were only to ascertain the portions of each partner, and not to be negociated. And that no final settlement was to take place till all the notes for the cargo were collected.

The case of Dumas vs. Julian in 1 Atk. 234, when attentively considered, will, I think, fully establish the doctrine contended for by the complainant. It shews, that notes and bills, put into the hands of an agent, although actually indorsed over and made payable to such agent, if they remain unnegociated, may be pursued [**56]  by the principal, and that he has a lien thereon. The Lord Chancellor in considering that case, declared that it was a question of great moment; "That the property of one man should not be dissipated to answer the debts of other men; that it was the policy of the bankrupt laws to put creditors, as near as may be, on a level, but that must be done only with regard to the bankrupt's own estate."

And in this very case, the chancellor referred to a decision in the court of common pleas, where it was determined, "That notwithstanding the goods so consigned were sold, yet as the factor took notes instead of money for them, that the principal was entitled to the notes, and not the creditors at large."

The bills remitted by Dumas to the Julians, were not drawn by them, but endorsed over, and were negociated, so that they might have been paid away as fully as P. & M. might have paid away the notes in question.--If they had done so, I grant we could not have pursued the notes in the hands of a third person; but the specific notes, which remained, being unpaid and undisposed of, upon the principles which influenced the Lord Chancellor in 1st Atk. 234, the complainant certainly has a [**57]  right to resort to in this court, either on the ground of surviving partner, or as a principal, puting goods into the hands of a factor, which he had sold, and received notes for.

In defining a lien, it is contended, that there cannot, in the very nature of the case, be a lien on that which a man has not "in custody," for without custody there is no lien.

Let me ask, had the Dumas's in 1 Atk. 234, the custody of the bills which they indorsed over and remitted to the Julians? So far they had a possession, as the possession of a factor may be the possession of the principal. One reason which influenced the chancellor in that case was, that the bills were appropriated, when remitted, and were intended to answer a particular purpose. So in the case before the court, the notes were put into the hands of P. & M. or suffered to remain in their custody, for the express and particular purpose of dividing the amount from time to time, as received, and not for the separate or sole use of P. & M.

It is also urged, that no lien, can exist when the parties have looked to personal security, and relied upon it, and 4 Burr. 2223 cited. The facts in that case were, that a dyer had, from [**58]  time to time, dyed cloth for a clothier, which he had a right to retain till paid the expense of dying, but instead of a retainer he delivered up the cloth, parted with his lien, and relied on the personal credit of the clothier. Nothing similar to this appears in the case before the court, to shew that Ridgely parted with his interest in the concern on receiving P. & M's. notes; the contrary is expressly proved by Levy, to be the fact.

3. Let us now attend to the third position laid down by the defendant's counsel, viz. "that the right to demand the possession of specific property depends upon the circumstance, that he who demands the possession was the exclusive owner and possessor, not having parted with the right, or made any special agreement relinquishing the right."

In considering the observations made by the defendant's counsel on the third position, I shall agree with him, that when a factor makes a sale, and the property is converted into money, the first owner can only be esteemed a creditor, and is entitled to no preference; but if the case referred to by the Lord Chancellor in 1 Atk. had been attended to, the defendant's counsel must have been satisfied, that [**59]  where notes instead of money had been given to the agent, the right of the principal to pursue them did not cease. A distinction is attempted to be set up between a possession as part owner, and a possession as factor, and that P. & M. being part owners, the property therefore in their hands could not be pursued; this objection, when duly considered, cannot possibly have any influence on the event of this case; because it is contrary to the fact; for Levy expressly proves, that the cargo came into P. & M's. hands as agents for the concern; and if they held as part owners, the right to the property, or its product in notes, certainly survived agreeably to the rules which prevail in all copartnerships.

The defendant's counsel has laid down a most extraordinary position, when he contends, "that where two or more persons have a certain interest, and one of them has the possession, and the property is sold, that the relation of debtor and creditor is immediately created, and an action of assumpsit lies for his share or interest."

This is the first time I ever heard it asserted that an action of assumpsit would lie by one partner against another, for a copartnership transaction,  [**60]  before a final settlement took place, and a balance struck.

What is the rule of law? Partners are seized per mi et per tout; they are considered as joint tenants in the stock, consequently nothing can be considered as the exclusive right, or actual share of one partner, but his proportion of the residue, upon a balance being struck of the accounts between them.--Law of Partn. 116. One joint partner cannot bring assumpsit against another, nor trespass. The case referred to as an authority, (2 Burr. 936,) relates to a factor, and not to a copartner.

The cases cited from Salk. Cowper, Doug. & Co. Litt. do not relate to a copartnership in trade, where the act of one partner is the act of, and binding on, all; but to a joint tenancy, where every one knows that an action at law cannot be maintained by the one against the other. For what purpose, these authorities were referred to, I cannot possibly discover, as they relate not to the case under consideration.

It is asserted, "that P. & M. by common consent, had the entire possession of the cargo for sale; their possession was rightful; that Ridgely could not have deprived them of it against his own agreement; that he could [**61]  not have followed the property, and that by his own agreement he was to receive his share in money." These assertions cannot be supported upon any mercantile principle; for P. & M. were only agents, and held the property as such; and it was liable in their hands to all the operations of law, which prevail in cases between factor and principal. Ridgely did not, by his own agreement, agree to receive his share in money, and abandon his rights either as partner or principal. No such proof appears in the cause; and if it did, according to the doctrine of the defendant's counsel, this consequence would ensue, that the very moment the cargo was put into the hands of P. & M. for sale, his (Ridgely's) right to a specific remedy, ceased; and yet the defendant's counsel admits, that Ridgely's right of resorting to the specific property, continued till after the sale, and till he took P. & M's notes.

It is urged, that Ridgely relied on the personal credit of P. & M. and never thought he had a right to pursue the notes; this assertion is contradicted by the proofs in the cause for it is expressly ascertained, that the notes were not taken in payment on a final settlement, but only delivered [**62]  as evidence of the amount of sales; and that the reason why each partner did not take notes at the time of sale, from the purchasers, arose from the difficulty of apportioning the notes, and because the method was unusual.

It is also said, that "in cases of equity the hardship must be divided." Does the defendant's counsel intend by this to infer that persons no wise connected should contribute a portion of their property, that the hardship may be divided? If such is his idea, it may be equality indeed, but not equity, although the rule has been contended for, that equality is equity.

It is also advanced as a position, that "liens are clear legal rights," and as a remedy exists at law, equity ought not to interfere to swallow up the estate for one creditor. Is there any weight in this observation? Are there no cases of liens in equity that do not exist at law? Nay, when the lien at law has been parted with? What is the case of a person selling land, taking bond for the purchase money, conveying the land, and the purchaser then becoming bankrupt? Equity gives relief, (though law cannot,) and says, that the vendor shall be preferred to other creditors, out of the land.

Is [**63]  it expected that equity will not interpose to prevent the estate of one person being swallowed up by claims against another, although it is assumed by the defendant's counsel, as an established point, that all the creditors of P. & M. stand on the same footing. Let me ask this single question, were all the creditors of P. & M. equally interested in the adventure to the West Indies? Where is the justice or equity that they should be satisfied debts against P. & M. out of Ridgely's property; or why should P & M's share of the adventure be applied to their private debts, before the company's debts are adjusted? This would be reversing the law of merchants, and be destructive of commerce.

4. I come now to the fourth and last position of the defendant's counsel--"that copartners in general trade, or a particular adventure, do not, as such, acquire the relations of debtor and creditor, but that relation is created whenever the adventure ends, and a balance is struck and promised to be paid, or any special agreement intervene on which a legal remedy can be had."

I readily admit, that the relation of debtor and creditor doth not arise between partners till a balance is struck, and [**64]  promised to be paid. This is not the case before the court; the contrary is the fact, as Levy's deposition will fully prove. But I cannot help remarking, how contrary this concession is to the several cases cited, and to the several dicta there hazarded and insisted on by the defendant's counsel. In the preceding part of his argument he insists that the complainant has a remedy at law, by action, as a joint tenant, he now relinquishes that point, and admits, that before one partner can sue another at law, the partnership must be dissolved, and a balance struck.

This is not the case before us; the partnership was not dissolved; for so long as the risk was mutual, and continued, the partnership could not cease; and no final balance could be agreed on. The notes for the cargo were at the joint risk of the concern, and consequently must be considered as joint property. What are the leading facts in 2 T. R. 479--a dissolution of the copartnership, a final settlement of accounts, and an unconditional promise to pay the balance by the defendant; neither of those three material facts exist in our case.

A difference is attempted to be set up between a person who sells land, and a [**65]  person who sells personal chattels. I cannot discover any difference, for land cannot be followed in the hands of a third person, as a purchaser, no more than merchandize; but the case in Atk. surely proves, that notes arising from sales made by an agent, can be pursued, they having ear-marks, which money has not, and are therefore considered in the same light, as the goods for which they were sold. Bills remitted to a factor, while unpaid, are in the nature of goods unsold, and subject to such a lien as he may have against them--2 Blk. Rep. 1155. And I contend, the reverse of the position is equally true in favour of the principal, and that notes or bills taken for goods sold by a factor, are subject to the same liens as the goods themselves.

The case of 1 Eq. Ab. 142, pl. 14, cited by defendant's counsel, is not recognized by the court, in 1. Bro. Chy. 422, as stated; but an opinion is there announced directly to the contrary, as having been delivered by Lord Hardwicke, and also by Lord Loughborough--that where purchase money was unpaid, the estate purchased was liable by an equitable lien.

That case is also contradicted by the following authorities. 2 Eq. Ab. 682. 1 Vern.  [**66]  267-8. 2 Vez. 622. 3 Atk. 272. 3 P. Wms. 307. 1 Fonbl. Eq. 143, 371, 374; but the cases in 1 Eq. Ab. 142, have been overruled by this court, in the decree B. Wells against Charles Ridgely's estate, a which decision hath given general satisfaction, and been the constant rule ever since in similar cases. The defendant's counsel relies on the agreement, that P. & M. were to sell, collect and pay, as a circumstance that destroyed all right in Ridgely to resort to the property or notes specifically. Is it not the duty and office of every agent to sell, collect and pay?

a See the case of the creditors of Charles Ridgely of John against his heirs and devisees May term 1792.

The case of 1 Atk. 232, is not correctly stated by the defendant's counsel--Dumas's did not draw a second lot of bills to reimburse the first ones; they remitted bills drawn on another house, and were indorsed over by them to the Julians, which completely changed the property. Yet the defendant's counsel contends, that the great inquiry in that case was on the fact, "is the property changed?" Surely it was. Whenever Dumas's indorsed the bills over to the Julians, and they were received by the latter, the [**67]  property in the bills, and the right to receive the contents, were not in Dumas's, but out of them.

The defendant's counsel asserts, that notes taken in the name of the agent, for goods sold belonging to the principal, are to be considered as the property of the agent. This is denied to be a rule of law; it is contrary to universal usage among merchants, and the case referred to in 1 Atk. and already animadverted on, proves the contrary. Besides, if this position was true, an agent would be always liable for the amount of sales to his principal, where he had taken notes, although they proved insolvent. This would be making the agent guarantee all sales, and be an underwriter against all insolvencies; and this too, in the present case, where no commission was to be paid, for P. & M. were not to charge a commission; and yet according to the doctrine contended for, they were responsible to Ridgely for his part of the gross amount of sales, notwithstanding insolvencies; and notwithstanding the agreement of the parties was directly the reverse, as is expressly proved.

It is insisted, that as part owner Ridgely had no lien; I answer, that as surviving partner he had a right to [**68]  pursue the notes, inasmuch as P. & M. were agents, and as such responsible to the concern, and as they took the notes for the joint account, and not for their separate use: It is contended, that to such part of the notes as were paid to P. & M. while living, the complainant's claim must sink to a level with that of other creditors. This I deny to be the rule in equity; for if we can find notes enough belonging to the concern, to pay our proportion, we have a right to pursue them. Suppose these had been paid out of the cargo on hand, when P. & M. died, could not Ridgely have taken possession of it as surviving partner, or would it have been appraised as P. & M's property by his executors? Certainly the surviving partner would have had the right; and in a court of equity, I contend, that inasmuch as part of the notes were on hand for which the cargo was sold, and can be designated, we have a right to a decree that they should be set apart for that purpose. And the reason why money cannot be pursued specifically, arises, says the law books, because it has no ear-marks by which it can be designated.

The observations of the counsel for the defendant were to have been attended to, and [**69]  answered by the Attorney General; but as he does not attend, I have therefore offered such arguments, as on a hasty consideration of the subject, appear pertinent. As the day is nearly arrived, being the 10th August, when Carey proposes to make a distribution, it is hoped the chancellor will be able to give a decree before that period.  

JUDGES:
HANSON, Chancellor.  

OPINIONBY:
HANSON 

OPINION:

 [*198]  HANSON, Chancellor. "The arguments of the defendant's counsel, against the decree in this cause passed, were by the chancellor heard and carefully considered; but he perceives nothing sufficient to overthrow the principles which governed him in his decision, or to prove that those principles were not justly applicable to the case. He cannot discover in what manner those principles can be injurious to commerce, or affect the negotiability of notes, as is intimated by the counsel. He has only determined, that the notes not negotiated in the lifetime of M'Kenna, shall be considered as in part the property of Ridgely, for whose use in part they were taken, and that the amount of the said Ridgely's part in the notes, which remained as aforesaid unnegotiated, shall be considered to be just so [**70]  much as his share of all the notes taken in the name of Parkin and M'Kenna amounted to. Is there any thing in this to shew the chancellor's idea, that if A. sells the property of B. and takes a note for it, the note may not be negotiated as other notes? Is there any thing to shew his idea, that if a man holds any thing in secret trust, and disposes of it, as if he were the real owner, a fair purchaser may be disturbed in this court? No| the chancellor's idea goes no further than this--so long as the subject of an express or implied trust remains in the hands of the trustee, or of his heirs, executors, administrators or devisees, this court will lay hold of it for the benefit of the cestui que trust; or if an executor, &c. converts it into money, this court will consider the money as justly belonging to the cestui que trust; and for rendering justice to him, will do any thing further not injurious to the creditors of the trustee; or (in other words,) not placing the creditors in a worse situation than they would have been in if the trust had never existed.
Will the chancellor's decision then tend in the least to destroy trust and confidence amongst men, or to injure the [**71]  mercantile interest? Will it not rather have an 

 [*199]  opposite effect? In short, after carefully considering the counsels observations, after attending to every thing which learning and ingenuity could suggest against his decision, the chancellor feels a much stronger assurance that his decision is right, and that it will be approved by every judicious trader, not interested in the cause.
It is thereupon this, &c. adjudged, ordered and decreed, that the decree in this cause, passed on the, &c. be and shall stand good." 

4 of 37 DOCUMENTS 

JOHN M'CREERY'S Lessee vs. ALLENDER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 409; 1799 Md. LEXIS 30 

October, 1799, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for lot No. 14, in the city of Baltimore, of that part of the said city called Fell's Point.

The following statement of facts was agreed upon and submitted to the court for their opinion thereon, viz. That William Fell being seised in fee simple of lot No. 14 in the city of Baltimore, the lot in the declaration of ejectment mentioned, on the 5th of October 1782, leased the same to one John Winning, his executors, &c. for ninety-nine years, at a certain annual rent. That the said Winning entered and possessed the said lot under the said lease, and on the 15th of January 1787, by his will, "bequeathed and devised to his wife Margaret, all his estate, both real and personal, during her natural life, and no longer;" and after the death of his wife, he directed, "that his daughter in law, Susanna Nelson, (provided she should marry with his wife's consent,) should have and hold his property, both real and personal, to her and her heirs for ever." That the said Winning died on or about the 15th of July 1789, and the said Margaret caused the will to be proved, and obtained letters testamentary thereon, and entered and possessed the said lot until her death, which happened on [**2]  or about the 5th of November 1793. That a certain Thomas M'Creery, a native of Ireland, and subject of the King of Great-Britain, in the life-time of the said Margaret, intermarried with the said Susanna Nelson; and after the death of the said Margaret, the said Thomas and his said wife, entered into and possessed themselves of the said lot under the devise in the said will, in right of the said Susanna. That the said Susanna died in the life-time of the said Thomas M'Creery, and that the said Thomas remained in possession of the said lot until his death. That the said Thomas M'Creery, in order to become a citizen of Maryland, and to become naturalized according to the act of assembly in such case made and provided, on the 30th of September 1795, took the oath, and repeated and subscribed the declaration by the said act required, before the honourable Samuel Chase, esquire, then being the chief judge of the state of Maryland for the general court, and did then and there receive from the said chief judge a certificate thereof, in the words following, to wit: "Maryland, sc. I Samuel Chase, chief judge of the state of Maryland, do hereby certify all whom it may concern, that on the thirtieth [**3]  day of September, in the year one thousand seven hundred and ninety-five, personally appeared before me Thomas M'Creery, and did repeat and subscribe a declaration of his belief in the Christian Religion, and take the oath required by the act of assembly of this state, entitled, "An act for naturalization." In testimony of the truth hereof I, the said Samuel Chase, have hereunto put my hand, at Baltimore-town in the state of Maryland, on the said thirtieth day of September, in the year one thousand seven hundred and ninety-five.

SAMUEL CHASE."

That the said Thomas M'Creery died on or about the 23d of February 1796, having first duly made and executed his last will and testament, dated in Dublin on the 18th of January 1796, whereby he devised "all his estate in the town of Baltimore, in North-America, or elsewhere, both real and personal, of what nature or kind soever, to his brother James M'Creery, in trust, and to and for the uses, intents and purposes, thereinafter expressed and declared, of and concerning the same; that is to say, in the first place to sell and dispose of the property real and personal," &c. That letters of administration on the personal estate of the [**4]  said Thomas M'Creery, with the said will annexed, was granted to John M'Creery the lessor of the plaintiff, and that the said James M'Creery, the devisee in the said will mentioned, was and is an alien and British subject.  

DISPOSITION:
JUDGMENT for the plaintiff, possession and costs.  

COUNSEL:
Martin, (Attorney-General,) for the plaintiff.

Winchester, for the defendant.

Martin, (Attorney-General,) for the plaintiff, argued that the case might be considered under three questions:

First: Supposing Thomas M'Creery an alien at the time of his death, is his lease good to try his title?

Secondly. If his right as an alien friend is not good, is not his right confirmed by his being naturalized?

Thirdly. If the title is not supportable on these points what is the operation of the British treaty?

First point. The title of an alien is good against all persons but the state; and there must be an office found or some act done, to divest his right; and in the life-time of Thomas M'Creery there was no act done to divest that right. His administrator takes the property, subject to the payment of any debts which the testator owed. An alien has a right to purchase real and leasehold property--1 [**5]  Bac. Ab. 80, new edition--and hold for the benefit of the crown. An alien may take an estate-tail, and suffer a common recovery, and bar the remainder man--Viner, til, Grant, 34. Gold. 102. In case of a fee simple and fee tail, an alien holds for the benefit of the state, but that he can only be divested by office found. If an alien lessee dies, the state shall have the land if an office found--Hughes' Ab. 150. An administrator may hold leased property, (unless an office found,) against all persons, but the state--3 Shep. Ab. (part 4,) 65. An alien may be an administrator of leased property--Cro. Car. 8. An alien may be an administrator, and have administration of leasehold property. The act of naturalization of November 1779, ch. 6, is so far repealed as the act of Congress operates upon it. Any person naturalizing under our state law, may still enjoy any right not incompatible with the general government and laws of congress. He may hold property in the same manner as a natural born subject.  

JUDGES:
CHASE, Ch. J.  

OPINIONBY:
CHASE 

OPINION:

 [*412]  CHASE, Ch. J. The court are of opinion on the first point, that the title of Thomas M'Creery, an alien friend, is good against every body but [**6]  the state, and that his right and possession could not be divested but by office found, or some act done by the state to acquire possession; and that the right and title of Thomas M'Creery vested in John M'Creery the administrator.
JUDGMENT for the plaintiff, possession and costs.  

5 of 37 DOCUMENTS 

BICKHAM vs. GOUGH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 17; 1797 Md. LEXIS 16 

June, 1797, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill filed by the present appellant, stated, that the defendant (Gough) being, or pretending to be seised, of a lot of ground in Baltimore-town, No. 22, did on the 8th of November, 1788, enter into an agreement with the complainant, to sell and convey to him, in fee, two parts of the said lot, which parts are described, &c. It was at the same time agreed, that the complainant should pay to the defendant 363l. current money, with interest, &c. Bond was entered by the defendant on the said 8th of November, 1788, to convey, &c. Bond was also entered into by the complainant for the payment of the said 363l. with interest, &c. the purchase money for the said two parts of a lot, &c. That the defendant has obtained judgment on the last mentioned bond; that the complainant was willing to pay the money upon being put into possession of the whole of the said two parts, and getting a deed for the same; that parts of the said lot were in the possession of other persons, with whom the defendant had contracted to sell. Prayer for an injunction, and for a specific performance, &c. Exhibit. The bond from Gough to Bickham, dated the 8th of November, 1788, reciting [**2]  a deed from Bourdillion and others, to Gough, dated the 26th of April 1771, for six lots or parcels of ground in Baltimore-town, viz. Nos. 15, 16, 21, 22, 26 and 35; that Gough, in consideration of 363l. with interest, &c. secured by bond dated the 8th of November 1788, payable on the 8th of December following, did bargain and sell unto the said Bickham, all those parts of lot No. 22, contained within a particular description therein set forth, with condition that the said Gough, upon payment of the said sum of money, and interest, should by good and sufficient deed make over and convey to the said Bickham "all that, the said Gough's estate, right, title and interest, of and in the said part or parcels of ground above described, No. 22, with the appurtenances, &c.

Answer. Admits that the defendant was formerly seised and possessed of the whole of the lot No. 22, and that on the 16th of December, 1773, he sold the largest or last mentioned part of the said lot to a certain Peter Welch, for 145l. sterling; that on the 15th of June 1774, Welch sold to Jacob Small, who took up Welch's bond and gave his own; but the defendant does not recollect that he gave a new bond to Small for [**3]  conveyance; that on the 15th of May, 1777, Jacob Fowble purchased of Small, and Fowble gave his bond for the money, but the defendant does not recollect whether he gave a fresh bond of conveyance. Fowble afterwards sold half to Stark, and on the 3d of February, 1781, Stark sold part to John Myers, and gave him a bond for conveyance; Myers afterwards sold to Daniel Deady, and assigned Stark's bond; that on the 12th of September, 1781, Fowble sold the residue to Herman Stidgar, liable to the debt due to the defendant, and the defendant believes Stidgar knew of the sale to Stark; that on the 3d of November 1782, the defendant settled with Stidgar, who gave a bond for 145l. and took the defendant's bond for conveyance of the whole, without attending to the right of Stark; that on the 8th of December, 1781, the defendant sold the smallest piece to Stidgar; that he received interest from Stidgar on both bonds; that Stidgar became insolvent, and Samuel Owings appointed his trustee; that on the 8th of November 1788, the complainant having before married Stidgar's daughter, and having purchased Stidgar's right from Owings, his trustee, applied to the defendant, and got him to take his bond [**4]  for the principal of both debts, and the defendant gave his bond of conveyance for the pieces of ground in the same manner he had given it to Stidgar; that it was the practice of the defendant to put one purchaser in the place of the other; that Stidgar knew of the sale to Stark, and the defendant believes the complainant also knew it; he did not complain he had not all his land until after he had paid a year's interest; the part in the possession of the complainant was covered with valuable buildings before the bond was given by the defendant to the complainant.  

DISPOSITION:
Case abated.  

COUNSEL:
The case was argued before the Chancellor, by Martin, (attorney-general) for the complainant, and by Cooke, S. Johnston, and J. Carroll, for the defendant.

The defendant's counsel contended, that there was no equity in the complainant's bill; that the defendant never made but one contract for the whole lot, and never made any with the complainant at all; that the complainant's allegation that he purchased of the defendant, is false--He purchased of Owings, who, as Stidgar's trustee, sold only Stidgar's right; that the complainant knew when he purchased, and long before, the extent of Stidgar's claim;  [**5]  he had married his daughter, and had built the wall between him and Myers. The defendant having given his bond to the complainant for the whole lot, instead of Stidgar's part of it, was a mistake in copying the original bond, instead of designating particularly the part which each person, who held the lot subdivided, claimed. The defendant ought to convey to each his proportion, and he is ready to do so, but can convey the whole to neither; and the complainant is unjustly endeavouring to force a conveyance for what he never purchased. The only question (they contended) was, whether the court of chancery would carry this mistake into effect, or would it not rather correct it.

It is the peculiar jurisdiction of chancery to relieve mistakes and correct them; but there never was an instance in which the court of equity would enforce any agreement, contract or bond, founded on such mistake.

It is a rule that every agreement ought to be fair and just, and free from mistake, or the court will not decree execution. 3 Atk. 386, 190.

Courts of law and equity will relieve against a deed founded on mistake, as equivalent to fraud. Cowp. 599, 600.

Where the contract is executory [**6]  the court will inquire into the circumstances before it will decree the execution. 3 Atk. 388. 2 Atk. 99, 100.

A mistake in drawee is as much a head of relief as fraud. 2 Atk. 203. 1 Brown 92, 350. 1 Vez. 457, 126, 221, 222, 229, 401.

The court may set aside such part of the bond which exceeds the original purchase of the complainant, and leave it a security for the performance of that only. 1 Wils. 231.

The complainant comes here for equity, and must do it. How can he in conscience ask a conveyance for the whole when he purchased only part.  

JUDGES:
HANSON, Chancellor.  

OPINIONBY:
HANSON 

OPINION:

 [*19]  HANSON, Chancellor. [November term 1794,] The case appears to be as follows: The complainant purchases from Samuel Owings a piece of ground in Baltimore-town, subject to the claim of the defendant, in whom remains the legal title, for the price of the whole lot, or division, from which the said piece was taken. The defendant is apprised of the dimensions of the said piece, and that the possession of the residue of the lot 

 [*20]  is in another person. It is agreed between the complainant and defendant, that the former shall pass his bond to the latter for the amount [**7]  of his whole claim, and that the defendant in return shall pass his bond for the conveyance to the complainant of the ground purchased by him; but instead thereof the defendant's bond is passed for the conveyance of the whole lot or division.
Thus, from the testimony in this cause, the facts appear. But it is conceived that the expression in the condition of the defendant's bond cannot be controlled by parol evidence; and that, in as much as the defendant thereby engaged to convey the whole lot, he cannot be permitted to recover the money, in consideration of which he executed the bond, unless be can make a good indefeasible title to the whole lot. It is not at the same time considered, that the complainant applies to be relieved against a bond, which does not express the consideration for which it was given; and that the consideration can appear only from the defendant's answer, or from the parol evidence taken on commission. But the answer which is supported by that evidence shews the consideration of the bond, and the facts, to be as above stated. What then is the equity of the case? Should the defendant convey the whole lot or division to the complainant? Nothing can be better [**8]  established than is the rule of this court, by which the defendant would be considered as only a trustee of that part to which he knew the equitable title to be in another person. If then, the defendant make the complainant a good title to that part which he actually purchased, wherein consists the injury? In short, there never was a case in which a complainant, whatever advantage he might suppose he could have at law, had less reason to expect the interference of a court of equity.
It is thereupon, this 2d day of December, 1794, by A. C. HANSON, chancellor, and by the authority of this court, adjudged, ordered and decreed, that the injunction heretofore issued in this cause be dissolved.
And it is further adjudged, &c. that when the defendant shall have levied or received the principal and interest due on the bond of the complainant put in suit as mentioned in the bill and answer, and likewise the legal costs by the said defendant expended at law in the prosecution of the said suit, and the legal costs expended in this court by the defendant in the defence of this suit, as taxed by the register, the said defendant, H. D. Gough, by a good deed, indented, acknowledged by him,  [**9]  and to be recorded agreeably to law, shall give, grant, bargain and sell, release and confirm, unto the complainant, 

 [*21]  J. Bickham, and his heirs, the piece of ground first mentioned in the said bill, and also the piece of ground which is delineated on the plot filed by the defendant, and referred to by the depositions, comprehended within the lines." &c. &c.
The complainant appealed to the court of appeals, and the case was entered abated at this term, (June 1797,) by the death of the appellant.  

6 of 37 DOCUMENTS 

BOREING'S Lessee vs. SINGERY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 398; 1799 Md. LEXIS 28 

October, 1799, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Boreing's Habitation Rock, lying in Baltimore county. The defendant took defence on warrant for all that part of the said tract of land, which is included within the lines of a tract of land called Singery's Trouting Streams, according to his location thereof on the plots returned in the cause.

BILLS OF EXCEPTIONS.

1. The plaintiff at the trial, offered in evidence to the jury, a patent granted to Ezekiel Boreing, the lessor of the plaintiff, on the 24th of April 1795, for the tract of land called Boreing's Habitation Rock, for which this suit is brought, stated to have been surveyed for him on the 8th of October 1794, in virtue of two special warrants, one for 120 acres of land, dated the 30th of November 1793, and the other for 180 acres, dated the 10th of December 1793, and described as "lying in Baltimore county, beginning at two bounded white oaks, they being the beginning trees of a tract of land called Singery's Trouting Streams, and running thence bounding on the given line of Singery's Trouting Streams reversely, S. 6, W. 57 ps. to the last line of the said land, thence reversing said land and bounding thereon the four following [**2]  courses," &c. &c. "to a stone set up in the ground marked with the letters C. S. the said stone being the beginning of a tract of land called Bear's Rock, thence" &c. &c. containing 300 acres more or less. Which said tract of land the plaintiff contended was truly located by him on the plots returned in the cause, as per table of courses No. 2.

The plaintiff also gave in evidence the original certificate of survey, and plot thereto annexed, returned into the land office, on which the grant of Singery's Trouting Streams was obtained, and the location of the tract of land therein mentioned by the name of Petticoat's Loose; and which the plaintiff contended was truly located by him, on the plots in this cause returned, as per table of courses No. 17.

The defendant produced and offered evidence to the jury, that the whole of the lands located on the plots returned in this cause, were reserve lands of the Lord Proprietary, under the direction and management of William Smith, deputy surveyor and agent of the said reserve lands on the part of the Proprietary; and that the said Smith, on behalf of the Proprietary, surveyed and laid off, on the 4th of February 1762, a part of the [**3]  said reserve for a certain Dorsey Petticoat, called Petticoat's Loose, as by a certificate thereof, dated the 19th of May 1762, in which the said land is described as "beginning at two bounded white oaks standing on the S. side of a small branch which descends into George's Run, and thence into the Great Falls of Gunpowder, and running thence," &c. eighteen courses, "and thence with a straight line to the beginning; containing and laid out for 127 acres more or less," &c. Which said tract of land the defendant located on the plots in the cause from figures 21, and described by table of courses No. 12.

The defendant offered to prove by the chain-carrier who was present at the original survey of the said land, that the actual beginning thereof was at two bounded white oaks standing on the south side of George's Run, at the said figures 21; and offered to prove that the said land, by sundry assignments, came to the possession of him the defendant. That from the time of taking up the said land to the year 1775, he the defendant, and those under whom he claims, had entered on, improved, and built on the said land, and held the same under the name and description of Petticoat's Loose,  [**4]  and under the survey so made by the said Smith the deputy surveyor and agent of the Proprietary; that he the defendant also held and possessed one other survey within the reserves, called Merryman's Mountain, as located on the plots returned in this cause, per table of courses No. 4. That he the defendant did not hold, possess or claim, right to any other tract, parcel, or survey of land, within this state, called Petticoat's Loose, except the one located by him on the plots in this cause. And that he the defendant, so being in possession of the said parcels of land, according to his locations thereof on the plots as aforesaid, on the 30th of September 1770, by legal and competent authority caused a resurvey to be made of the said two parcels of land, and added contiguous vacancy, and a certificate thereof to be made and returned to the land office, by the name of Singery's Trouting Streams, wherein it is stated, that "by virtue of a general order from the right honourable the Lord Proprietary, his commissioners for the sale of his manors and reserved lands within the province of Maryland, to lay out parcels of his Lordship's reserved lands in Baltimore county, for persons applying [**5]  for the same," &c. James Calder, deputy surveyor of the said county, certified that he had "surveyed and carefully laid out, for and in the name of Christian Singery, a tract or parcel of land, part of his Lordship's reserved lands in Baltimore county, including two tracts or parcels of land, viz. Merryman's Mountain, beginning at three bounded white oaks, (two of which proceeds from one root,) standing on the west side of George's Run which descends into the main falls of Gunpowder River, and running thence" &c. ten courses, "and then by a straight line to the beginning, containing and laid out for 83 acres." "Petticoat's Loose, beginning at two bounded white oaks standing on the south side of a small branch, which descends in to George's Run, and running thence," &c. seven courses, "and thence by a straight line to the beginning, containing 91 1-2 acres. Beginning, for the resurvey, at two bounded white oaks standing between two barren hills at the end of the last line of Merryman's Mountain, and about west nine perches from George's Run, which descends into Gunpowder Falls; thence," &c. twelve courses, "to the beginning trees of Petticoat's Loose; then," &c. seven courses, "and [**6]  thence by a straight line to the beginning, containing and laid out for 178 acres," &c. The said certificate was examined and passed, and the purchase money paid on the 19th of April 1775. The defendant also offered in evidence a grant for the said land, which issued to him on the said certificate on the 20th of April 1775, and which is located by him on the plots in this cause as per table of courses No. 5.

The defendant also offered evidence, that a tract of land called Horatio's Lott, located on the said plots, per table of courses No. 6, was surveyed on the 22d of June 1791, for Mordecai Ford, containing 314 1-4 acres, and patented to Horatio Ford on the 9th of January 1794, the certificate having been assigned to him; which said land is described as "lying in the reserve of the county of Baltimore, beginning at a bounded Spanish oak, and a bounded hickory standing on the east side of a small branch which descends into George's Run, a draught of the Great Falls of Gunpowder, and running," &c. the three last courses of which are, "until it intersects a tract of land called Singery's Trouting Streams; thence running with and bounding on said land S. 80 45 E. 225 perches, to [**7]  a stone marked C. S. and thence with a straight line," &c.

The defendant further offered evidence, that at the time of the resurvey on the said land called Merryman's Mountain and Petticoat's Loose, the surveyor in making the said survey, did actually run to the two trees at the beginning of Petticoat's Loose, at figures 21 on the plots in this cause; and to prove that the land called Petticoat's Loose, called for in the grant of Singery's Trouting Streams, did begin at the said figures 21, the defendant further offered in evidence, that at the said figures 21 on the plots, there stood, at the time of making the survey of Singery's Trouting Streams, two white oak trees on the south side of a small branch which descends into George's Run, located on the plots; that the said white oaks were the beginning trees of a tract of land known in the neighborhood by the name of Petticoat's Loose, and that no other land was known by that name.

The defendant also offered to prove the land as located by the plaintiff on the plots in this cause, and described in the table of courses No. 17, was not at the time of making out the certificate of Singery's Trouting Streams, known by the name [**8]  of Petticoat's Loose; and that the land located on the plots, and described in the table of courses No. 13, was part of the land called Petticoat's Loose, and is the same land described in the certificate of Singery's Trouting Streams by the name of Petticoat's Loose, as beginning at two white oak trees on the south side of a small branch which descends into a run called George's Run.

The defendant then offered to prove, by the chain carrier who carried the chain on making the survey called Singery's Trouting Streams, that the surveyor at the time of making the said survey on which the certificate for the said tract was returned, did run to two white oak trees on the south side of a branch which descends into a run called George's Run, located on the plots of figures 21; and also that the said two white oaks were the beginning trees of that tract called Petticoat's Loose, described in the certificate of Singery's Trouting Streams, which the defendant locates as per table of courses No. 13.

The plaintiff by his counsel objected to the evidence so offered by the defendant.

CHASE, Ch. J. In the case of Helm's Lessee vs. Howard, a the court decided, that if a certificate [**9]  of survey called for a tree standing in line of another tract of land, and the tree can be proved, you may run to it, though it should appear that the tree does not stand in the line described; and to such a case the reasoning of the defendant's counsel applies. But in such a case as this, where the call is to trees as the beginning trees of another tract, you must not only prove them to be the trees called for, but the beginning or other trees of the land of which they are described to be boundaries.

a 2 Harris and M'Henry's Rep. 89.

THE COURT b are of opinion, that the defendant cannot give evidence to the jury, that the tract of land called Singery's Trouting Streams run to the said two white oak trees which are located on the plots at the figures 21. The defendant excepted.

b Duvall, J. concurring. Done, J. did not attend.

2. The plaintiff, to make title to the land in the declaration of ejectment mentioned, having offered in evidence a grant for the said land as herein before mentioned, called Boreing's Habitation Rock, to Ezekiel Boreing, the lessor of the plaintiff, dated the 24th of April 1795, and surveyed on the 8th of October 1794, in virtue of [**10]  two special warrants, one granted on the 30th of November 1793, and the other on the 10th of December 1793, the defendant offered in evidence from the records of the land office, that the certificate of survey on which the said grant issued, was compounded on the 10th of November 1794, and not before.

The defendant then prayed the opinion of the court, and their direction to the jury, that the said grant did not pass any legal title in the land in the declaration mentioned to the lessor of the plaintiff, in case the said certificate of survey was compounded on as aforesaid.

It is presumed that the objection taken to the grant arose under the act of April 1782. ch. 38, s. 2, which enacts that "all certificates returned upon warrants granted in virtue of the act of November session 1781, ch. 20, or hereafter to be granted, shall lie in the office six months after they shall be compounded on, after which times respectively grants may issue, without notice as required by the act of last session."

CHASE, Ch. J. The court are of opinion that the direction prayed by the defendant's counsel ought not to be given to the jury. The defendant excepted.

3. The defendant, by [**11]  his counsel, produced in evidence, a grant under seal, which issued to him as herein before mentioned, for the land called Singery's Trouting Streams, and claimed and defended by him on the plots returned in this cause. The plaintiff, by his counsel, produced the original certificate out of the land office, and offered in evidence, and swore a witness to the jury to prove, that James Calder was surveyor of Baltimore county at the time when the original certificate was returned into the land office upon which the said patent was granted, and that the said certificate, on which the said patent issued, was not made out or signed by him, or his authority; that as the original certificate was entered upon his surveyor's books, it contained no call to the beginning of Petticoat's Loose, nor was there any such call in the certificates as made out by him, or under his authority; that the certificate as made out by the said Calder to be returned to the land office, described the said land in the following manner, viz. "Beginning at two bounded white oaks standing between two barren hills at the end of the last line of a tract called Merryman's Mountain, (included,) and about west nine perches [**12]  from George's Run, and running thence," &c. nineteen courses, without any calls; "and then with a straight line to the beginning, containing 178 acres," &c. as entered in his surveyor's books; and that he did examine the original certificate with the copy entered on his said books before he signed and delivered the original certificate for the said land called Singery's Trouting Streams; by which said evidence the plaintiff offered to prove to the jury, that the said certificate was a forgery, that the said grant for the said land could not operate to pass more land than was contained in the certificate made out by the said surveyor, and entered in his book as aforesaid.

The defendant then proved that no other certificate for Singery's Trouting Streams was ever returned to the land office, than the one herein first before mentioned, on which the said patent issued as aforesaid.

The defendant, by his counsel, objected to the plaintiff's giving the evidence aforesaid to the jury for the purposes aforesaid.  

DISPOSITION:
Reversed, and procedendo awarded.  

COUNSEL:
Winchester, for the defendant. The call in the grant of Singery's Trouting Streams is for the beginning trees of Petticoat's Loose,  [**13]  and whether or not the surveyor run to one or the other tracts, is a matter of fact for the jury. If the defendant proves to the jury an actual running to the trees located, he is not precluded from going to those trees, because the surveyor has erroneously described them to be the beginning trees of another tract; for that which is certain cannot be made uncertain by uncertain or untrue description.

Martin, (Attorney-General) and Cooke, for the plaintiff.

Key, Shaaff and Winchester, for the defendant.  

JUDGES:
CHASE, Ch. J. Mackall, Jones, Potts and Dennis, J. a

a Rumsey Ch. J. did not attend. 

OPINIONBY:
CHASE; Mackall; Jones; Potts; Dennis 

OPINION:

 [*404]  CHASE, Ch. J. The court are of opinion, that the evidence is legal and admissible to the jury. Fraud is examinable at law as well as in equity, and no inconvenience can arise from admitting the evidence. In either court it must be decided on the testimony of witnesses, and there can be no reason why the examination should not be made at law.
There was no exception taken to this opinion of the court.
Verdict and judgment for the plaintiff. The defendant appealed to the Court of Appeals.
THE COURT OF APPEALS [ a  [**14]  Mackall, Jones, Potts and Dennis, J.] at November term 1802, reversed the judgment of the general court, viz. They disagreed with the general court in the opinion stated in the first bill of exceptions; but concurred with them in the opinion expressed in the second bill of exceptions, and awarded a procedendo.

a Rumsey Ch. J. did not attend.

7 of 37 DOCUMENTS 

Richard Hoddy's Lessee against William Harryman.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 581; 1797 Md. LEXIS 6 

May, 1797, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment for an undivided moiety of a tract of land called Shaw's Fancy; also of an undivided moiety of Shaw's Delight, and also of Shaw's Privilege, all lying in Baltimore county.

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

For the first, the plaintiff offered in evidence the patent for the tract of land called Shaw's Fancy, granted to Christopher Shaw the 10th of August, 1684, for 100 acres, and which was admitted to comprehend the whole of the lands mentioned in the declaration. He also offered in evidence the last will and testament of Christopher Shaw, dated the 11th of February, 1739, by which he devises all his real estate to be equally divided between John Ingle and Ruth Bayes, in fee-simple. That Christian Shaw, the devisor, was a son of Christopher Shaw, the patentee.

The plaintiff further offered in evidence a deed from Robert Boyd, and Ruth, his wife, to George Harryman, dated the 6th of December, 1742, conveying to George Harryman one half of Shaw's Fancy, one half of Shaw's Delight, and Shaw's Privilege, which land is recited in the deed to have been devised by Christopher Shaw to John Ingle and Ruth Bayes, the wife of [**2]  the said Robert Boyd, and is acknowledged in the form following: "Memorandum, that on the 6th of December, 1742, came Robert Boyd, party to the within deed, and acknowledged the said lands and premises therein mentioned, to be the right, title and estate of the within named George Harryman, his heirs and assigns; and at the same time Ruth, the wife of the above said Robert Boyd, acknowledged the within bargained lands to be the right of the said George Harryman, his heirs and assigns for ever, according to the directions of the act of assembly, in such case made and provided," &c.

The plaintiff also offered in evidence to the jury that the said Ruth mentioned in the deed was Ruth Bayes, to whom the said Christopher devised the undivided half of his lands; also that Robert Boyd, about 16 years past, moved from Baltimore county into the state of Virginia, where he died about ten years past; also that Christopher Shaw, the devisor, lived and died on the said tract of land in dispute, and that the said George Harryman, and those claiming under him, have been in possession of the premises from some time before the year 1750, until the present time.

The defendant then offered evidence [**3]  that the said Christopher, to whom the said tract of land was granted, left two sons, Thomas and Christopher; (the devisor;) that Thomas was the eldest, and died leaving his eldest son, Christopher Durbin Shaw; and offered evidence that the said Christopher Durbin Shaw had been in possession of part of the lands in dispute; but without offering evidence that George Harryman, or those claiming under him, ever possessed the said lands antecedent to the said deed from the said Boyd and wife. The defendant produced a paper purporting to be a bond of conveyance from Christopher Durbin Shaw, to the aforesaid George Harryman, dated the 11th of February, 1737-8, the condition whereof is, that Christopher Durbin Shaw should convey all his right and title to the tract of land called Shaw's Fancy, or all the land he held any claim to in Baltimore county; which bond purported to be signed and sealed by Christopher Durbin Shaw, in the presence of two witnesses.

The defendant then offered to read the same in evidence to the jury, without proving the execution thereof. Whereupon the plaintiff, by his counsel, objected that the defendant was not entitled to read the said paper without proof of [**4]  the execution thereof, or of possession by George Harryman, or those claiming under him, at some period antecedent to the execution of the said deed.

The Court were of opinion that the said bond from the said Christopher Durbin Shaw, to the said George Harryman, the grandfather of the defendant, may be given in evidence to the jury without proof of the execution thereof, the said defendant, and those under whom he claims, having been in possession of the lands in question for more than forty-seven years; and the said paper, purporting to be a bond from the said Christopher Durbin Shaw, was read to the jury accordingly. To this opinion the plaintiff excepted.

2d exception. The plaintiff also offered in evidence a transcript from the land records of Baltimore county court, purporting to be a deed from the said Robert Boyd and wife, to George Harryman, under which the said George Harryman, the defendant, claims, for the purpose of showing that the said Harryman entered and possessed the land mentioned in the declaration, or some part of it, under the deed, claiming under them, or one of them; which deed was acknowledged as set forth in the first exception. And also read in evidence [**5]  a transcript from the land records of Baltimore county, under the seal of the county court, purporting to be a deed from Christopher Durbin Shaw to the said George Harryman, of an undivided half of Shaw's Fancy and Shaw's Delight, dated the 9th of March, 1738; to which deed is the following acknowledgment, viz. "Memorandum, that on the 9th day of March, 1738, came Christopher Durbin Shaw, and acknowledged the lands and premises within mentioned to be the right, title and estate of the within named George Harryman, and his heirs and assigns for ever: and at the same time came Susanna, wife of the said Christopher, and acknowledged the land and premises to be the right, title and estate of the said George Harryman, his heirs and assigns for ever, according to the direction of an act of assembly in such cases made and provided." Made before two justices of the peace; which transcript was read in evidence by the plaintiff to prove that George Harryman entered into one moiety of the said two tracts of land, and possessed the same under the said deed, claiming the same under the deed; and that the said Christopher Durbin Shaw, by that deed, meant only to sell one undivided moiety of the [**6]  said lands to George Harryman; both which transcripts had been, before they were so read to the jury, and on the production thereof, submitted to the view and examination of the counsel for the defendant, by which counsel they were returned to the counsel of the plaintiff, without any objection to their being read to the jury; and they were read without objection; but during the trial of the cause, and on the next day after they had been so produced and read to the jury, the defendant's counsel prayed the court to determine the said transcripts ought not to have been read to the jury, because the deeds do not appear to be legally acknowledged, and, therefore, that they should be withdrawn, or not considered as evidence in the cause, and that the court could take no notice of their contents for any purpose of proof, and that the jury, in forming their verdict, was not to notice those transcripts, or their contents.  

DISPOSITION:
Reversed.  

COUNSEL:
Key, for the defendant, contended that the copy of the deed produced yesterday by the attorney-general, from Boyd and wife, the acknowledgment being defective, could not be read in evidence for any purpose.

Martin (Attorney-General) admitted it could [**7]  not convey any interest in the bargainee, but insisted it might be read to satisfy the jury of the fact, that the bargainee entered under that title; and that moreover the counsel of the defendant was too late in his objection, as the deed had been read, and the objection was waived, being made too late; that if it had been made in time, he could have produced the original.

The Court (CHASE and DUVALL against the opinion of the chief judge) were of opinion the said transcripts were not legal evidence, they not having been acknowledged according to law; that they could not be legally offered to the court and jury for any purpose of proof, and that the jury, in forming their verdict, was not to notice those transcripts or their contents. To this opinion the plaintiff's counsel excepted.

3d. For the 3d bill of exception, the plaintiff offered in evidence the two grants, the one for Shaw's Fancy, and the other for Shaw's Delight, granted to Christopher Shaw; that they are two of the tracts mentioned in the declaration, and it was admitted that the true location of the land called Shaw's Fancy, included the whole of the tract called Shaw's Delight; that Shaw the grantee left two [**8]  sons, Thomas, his eldest son, and Christopher, the younger son; that Thomas died leaving a son named Christopher Durbin Shaw his heir. He also offered in evidence the will of the said Christopher, son of Christopher, the grantee; that Ruth Bayes, one of the devisees therein named, intermarried with Robert Boyd: The transcript of the deed from the said Boyd and wife to George Harryman, the grandfather of the defendant, under which said George the said defendant claims: That after the death of Thomas Shaw aforesaid, the said Christopher Durbin Shaw lived on the land called Shaw's Fancy, until the date of the deed from him the said Christopher Durbin Shaw, to the said George Harryman: The transcript of the deed aforesaid, from the said Christopher Durbin Shaw to the said George Harryman: That the said Christopher Shaw, son of the patentee, lived on the land called Shaw's Fancy some years before his death, and was living thereon until his death; that the lands meant to be conveyed by the said deed from the said Christopher Durbin Shaw to the said George Harryman, though called Swan's Fancy and Swan's Delight, were in reality the tracts called Shaw's Fancy and Shaw's Delight.

The plaintiff [**9]  also offered in evidence the entries in the rent roll of lands situate in Baltimore county, preserved in the land-office, to wit:

"97 acres yly rent 3s. 10d. Shaw's Delight, surv. 15th June, 1688, for Christ. Shaw on the S. side of Middle River.

"48 a. 1s. 11d. George Harryman from Xphr. Durbin Shaw, 9th March, 1738.

"97 a. 3s. 10d. George Harryman from Robert Boyd and wife, 6th December, 1743.

"100 a. 4s. Shaw's Fancy surv. 10 Augt. 1680, for Xpher. Shaw on the W. side Middle River at bound Spanish Oak of the land called Hopewell.

"50 a. 2s. George Harryman from Xpher. Durbin Shaw, 9th March, 1738.

"100 a. 4s. George Harryman from Robert Boyd and wife, 6th December, 1743."

That the said George Harryman, and those holding under him, have possessed the said land called Shaw's Fancy ever since the said deeds were so executed, until the present time. That Richard Hoddy, the lessor of the plaintiff, before the commencement of this suit, married Mary, the daughter of the said Robert Boyd and Ruth his wife, and that the said Hoddy and wife live in the state of Virginia; that the said Robert Boyd died in the same state six years past, and that the said Ruth [**10]  his wife died about fifteen or sixteen years past.

The defendant offered in evidence the grant of the tract of land called Shaw's Fancy to the said Christopher Shaw; that the said Shaw died leaving two sons, Thomas, the eldest son, and Christopher, the youngest. The grant of the land called Shaw's Delight to the said Christopher Shaw the elder. That Christopher, the grantee of Shaw's Privilege, was the brother of the said Thomas, and youngest son of Christopher the elder. The admissions of the plaintiff, that the said land called Shaw's Privilege was located and contained within the lines and location of the land called Shaw's Fancy. That Thomas Shaw died leaving an only son and heir at law Christopher Durbin Shaw; that the said Christopher Durbin Shaw entered upon, held and had possession of part of the said land called Shaw's Fancy, at the time Christopher Shaw had possession of part thereof. That George Harryman, more than fifty years ago, entered upon, held, used and claimed the said land called Shaw's Fancy as his own proper estate and right. The bond for the conveyance of the said land executed by Christopher Durbin Shaw, and conditioned for the conveyance of the said land [**11]  to George Harryman and his heirs, dated the 11th of February, 1737-8. That the said George Harryman entered upon, occupied and was possessed of the whole of the said land called Shaw's Fancy, and afterwards died so seised thereof, leaving George Harryman his eldest son and heir at law. That the said George Harryman, the heir at law, after the death of his father, entered upon, and became seised of, the said land as the law required, and afterwards died so seised thereof, leaving William Harryman, the defendant, his eldest son and heir at law, who, after the death of the said George Harryman, his father, last mentioned, as heir at law, entered upon the said land called Shaw's Fancy, and hath ever since held and possessed the same, and is now in possession thereof, and is the defendant in the present cause.

Whereupon the plaintiff's counsel desired the court to declare to the jury their opinion, that on this evidence, if they believed the testimony given, they might and ought to presume a will or conveyance to have been executed by Christopher the grantee, under which his son Christopher, and his grandson Christopher Durbin, were entitled to the said land called Shaw's Fancy, as [**12]  tenants in common, or as joint tenants, though no such deed or will was produced at the trial; and that the court would so direct the jury notwithstanding the evidence so offered by the defendant.

Martin, (Attorney-General,) for the plaintiff. It is equity and humanity to protect the rights of married women. The deed being a void deed cannot be argued from; the deed from Christopher Durbin Shaw is for one undivided moiety. This shows plainly what the one party meant to sell, and what the other meant to buy. Under this deed George Harryman was entitled to one moiety only. On the 11th of February, 1739, Christopher Shaw made his will, and devised the other moiety to Ruth Bayes and John Ingle, to them and their heirs for ever; and the will was proved the 3d of May, 1739. The deed from Boyd and wife, dated in December, 1742, to George Harryman, recites the devise from Christopher Shaw, and is for one half part, and recognises Christopher Shaw's right. Then George Harryman's right is good as long as Boyd lived, (and he died in 1791,) and no longer.

There might have been a will from Christopher Shaw, senior, for there was no law at that time making it necessary to record wills.  [**13]  It may be said that this presumption is to defeat an ancient possession, but it is not so; it is to strengthen an ancient possession, a possession which all parties acknowledged; but, according to his title, the defendant's possession ceased on the death of Boyd, and ours begins. For presumption to legalize long possession, cites Helms's Lessee v. Howard, (October term, 1784,) and Lloyd v. Gordon, April term, 1789,) where a patent was presumed although against long possession, say fifty years. But the presuming the patent was to strengthen and legalize possession. In the case of Greenhawk and Wife's Lessee v. Cumberford, the defendant supported his title under a patent of 1762. The ejectment was brought about 1780. The defendant set up a title under a patent to A. Hutchings, dated in 1762. No patent could be found for the land for which the ejectment was brought. There was a certificate for Rigby, (the name of the land,) by which it appeared that the land had been surveyed in 1679 for John Wooters. He conveyed it, in 1694, to Josiah Bradbury. A deed from Bradbury in 1735, was made to Thomas Hutchings for a moiety. In 1747 Thomas Hutchings died, and had lived on the land. He left a [**14]  son named Thomas, his heir, who enlisted in the army in Braddock's war in 1756, and never returned. This Thomas left an only daughter, who married one Greenhawk before she was of age. A. Hutchings was the brother to Thomas. To get clear of the patent to A. Hutchings, it was necessary to presume a grant, and it was presumed; and it was presumed to show that the possessions were held under title, and not to destroy title.

So in the case at bar, the defendant being in under title until Boyd's death, the presumptions is not to destroy title.

Key, for the defendant. In 1680 Christopher Shaw took up Shaw's Fancy; he left two sons, Thomas and Christopher. In 1725 patent issued to Christopher the son, for the same land, called Shaw's Privilege; Christopher Durbin Shaw is heir at law to Shaw's Fancy; Christopher, the son, the patentee of Shaw's Privilege. The fact whether Christopher Shaw entered under the patent of 1725, or under a deed to be presumed from his father, is for the jury to determine.

There is no evidence to show the assent of the heir at law to the entry of Christopher under the patent; and the bond from Christopher Durbin Shaw, in 1738, is for the whole. Reads [**15]  the proprietary instructions and conditions of plantation of the 5th of April, 1684, 4th of December, 1696, and the 12th of April, 1712.

The Court were of opinion that under the evidence given in this cause, they could not, in point of law, give the direction as prayed for by the plaintiff's counsel, and did accordingly refuse to give the direction. To this opinion the plaintiff excepted.

In the course of the trial of the cause, Key, for the defendant, offered to read in evidence a copy of a deed, (the book in which it was recorded being lost,) dated in the year 1707, and which did not appear to have been acknowledged. He cited Esp. 747. 773. The act of 1715, c. 47. s. 6, 7. 2 Bac. Abr. tit. Evidence, 308, 309. The copy of the deeds appeared to be taken from Liber H. W. No. 1. and the clerk of Baltimore county, sworn as a witness, said, the hand-writing in which the copy was made seems to be the same as the hand-writing in the record book, Liber H. W. No. 2.  

OPINION:

 [*590]  The Court. The instrument offered not having been acknowledged, cannot be received in evidence. The defect cannot be cured by any of the acts of assembly of 1692, c. 30. 1699, c. 42. 1704, c. 24.  [**16]  or 1715, c. 47.
The plaintiff appealed to the court of appeals.
At June term, 1800, the court of appeals decided that the general court were right in their opinions contained in the first and third bills of exceptions. But, as to the 

 [*591]  second bill of exceptions, the court of appeals were of opinion, that the general court "had a right to direct the jury that testimony, offered and admitted by the parties, was illegal and inoperative, the court of appeals being of opinion that they are not bound by the admission of the parties, when evidence is illegal; but the court of appeals were further of opinion that the acknowledgment of the two deeds, mentioned in the said bill of exceptions, were good and legal, and ought to have been read in evidence to the court and jury; for which error the said judgment is reversed." 

8 of 37 DOCUMENTS 

Frederick Shaffer and Wife, and Thomas Constable and Wife's Lessee against William Corbett.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 513; 1797 Md. LEXIS 1 

May, 1797, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment for lot No. 14. in the city of Baltimore.

A case stated was submitted to the court for their opinion, by which,

It is admitted that Jacob F. Brown, late of Baltimore county, deceased, was seised in fee of the premises mentioned in the declaration, and that he died so seised thereof, and that Mary Magdalen Constable, the wife of Thomas Constable, and Elizabeth Margaret Shaffer, wife of Frederick Shaffer, are heirs at law of Jacob Brown.

It is further admitted that Jacob Brown, on the 15th day of November, 1790, then being seised in fee-simple of the aforesaid premises, made his last will and testament, whereby, among others, he made the following devises, viz. "I give and bequeath to Catharine Barbara Brown, my wife, my whole estate real and personal, during her natural life. In case my mother, Mary Magdalen Brown, shall live longer than my wife, it is my will that my mother shall hold and enjoy the whole of my estate, or so much as shall remain at the decease of my wife, during her natural life." He then devises that after the death of his mother and wife, his estate is to be divided into five equal parts. One part he gives to the children of his [**2]  sister, Elizabeth Margaret Shaffer, equally to be divided among them, and their heirs. Another part in like manner to the children of his sister Mary Magdalen Constable. Two parts of the said five parts to be divided into four equal parts, one of which he gives to the children of his wife's sister, Christiana Scott, equally to be divided among them, and their heirs. Another share in like manner to the children of his wife's sister, Susanna Lindenberger. Another to the children of his wife's sister, Mary Alder. Another to the children of his wife's sister, Margaret Kelshamer, and the remaining share of the five parts he gives to William Corbett, one of the children of his wife's sister, Margaret Kelshamer.

It is also admitted that the testator departed this life on or about the 1st of December, 1790, and that the mother and wife of the said Jacob Brown, mentioned in the will, both departed this life in the month of December, 1790.

It is also admitted that James Davidson, one of the subscribing witnesses to the will of the said Brown, was long before, and at the time of subscribing his name as a witness thereto, and yet is, the husband of Margaret, the daughter of Christiana [**3]  Scott, and who, by the said will, is described as one of the children of the said Christiana, and is one of the devisees of the real estate of the said Jacob Brown.

And it is submitted to the court, whether the said James Davidson can be considered a credible witness for the purpose of proving the said will, and giving validity to the same, even should the said James Davidson, and Margaret, his wife, execute, acknowledge, deliver and record, in due form of law, a conveyance and release of all the interest and right which they have, or might claim under, and by virtue of the said will in the real estate therein devised, should the said will be established; and if it is the opinion of the court that the said James Davidson is a credible witness to prove the said will on executing such a conveyance and release, or without executing such a conveyance and release, then judgment of nonsuit to be entered in this cause. But if the opinion of the court should be, that the said James Davidson is not a credible witness to prove the said will, even though he executed a release as aforesaid, then judgment to be entered for the plaintiffs.  

DISPOSITION:
Affirmed.  

COUNSEL:
Winchester, for the plaintiffs.

Martin,  [**4]  (Attorney-General,) Shaaff and Hollingsworth, for the defendant.

Winchester, for the plaintiffs. The case of Helier v. Jennyns is stated most correctly by Lord Raymond. 1 Ld. Raym. 505. Com. Rep. 91. 1 Freem. 510. Carth. 514. Espinasse, 472, 473.

The facts material to the question in that case were, T. J. being seised in fee of lands, devised them to W. H. in fee, and executed his will in the presence of three witnesses, one of whom was W. H. the devisee. It was objected that this devise was void, Helice not being a credible witness within the statute. Raymond's report is best against the opinion of 1 Bl. Rep. 101. See Pow. on Dev. 115.

That case having decided that persons any way interested, as well as persons rendered incompetent by crimes, were not within the description of credible witnesses, the next case confirmed the decision, and agitated the question whether the want of credibility could be purged by any matter ex post facto. 2 Stra. 1253. Ansty v. Dowsing.

The next case was Price v. Lloyd, for the establishment of a will, but no decision ever took place, for the witness on the master's special report was no creditor. 1 Vez. 503. 2 Vez. 374.

Money [**5]  legatees had been admitted on payment or release, but the rule had never prevailed so far as to admit a release or payment, to restore the witness where he was a devisee of real property. So far from it, that Helier v. Jennyns was always received for law, and the decision in Ansty v. Dowsing first created the alarm which gave rise to the statute of 25 Geo. II.

But cases occurring not comprehended within the purview of this statute, it became necessary further to discuss the meaning of the word "credible;" and the next case in which it was brought before the court was Windham v. Chetwynd, 28 Geo. II. 1 Burr. 414. See Pow. on Dev. 124.

The principles upon which Lord Mansfield's opinion was founded, were not generally satisfactory, and the same diversity of sentiment, as to the true construction of the statute of frauds, continued, and the case again came before the court in Hindson v. Kersey. Powell, 131-134.

The case of Hindson v. Kersey was the last in which this question occurred, and while the number of the judges is nearly equal on each side of the question, the majority of decisions is evidently with the opinion that such a will is not duly executed.

The cases [**6]  and arguments remain to be contested. Windham v. Chetwynd may be received as good authority, and its application to this case may well be denied. The decision proceeded on general and particular circumstances, differing from the case of Davidson. Davidson's interest is only consequential, not direct. But it has existence as a benefit, is derived from the will, and is the effect of the testator's bounty. The witnesses in Windham and Chetwynd, derived nothing from the testator's bounty. They had a legal remedy against the personal estate, which was found sufficient, and the charge on the real estate was unnecessary. 1 Burr. 430.

The witnesses must be competent at the time of the attestation. The disability arising from interest renders them incompetent; it is the same, while it continues, as a positive incapacity; for whether they labour under either of these impediments, they are incompetent.

If the principle is true that they must be disinterested at the time of attestation, they are to all intents and purposes as absolutely incapacitated as a notary public is from taking the acknowledgment of a deed; and a future freedom from interest would no more restore them, than a subsequent [**7]  investiture of such powers in a notary public would give validity to the deed. While incompetency exists, whatever may be the cause of it, the witness must be rejected. The incompetency resulting from interest may be removed so as to receive proof; but it will not give capacity to attest, if capacity was requisite. Here it must always be remembered that the inquiry is not upon the method of proof, but the method of attestation.

Attestation was rendered necessary by the statute; proof remains as it did at the common law. Thus, though three must attest, one may prove as we see in common practice.

The statute introduces a total new ceremony. Publication; signing by the testator; by the witnesses within the view or presence of the testator. If considered on general principles of construction, it would be also understood that new statutes, and all statutes limiting a thing to be done in a particular form, require a precise observance. Now that what that statute requires must be at the time of attestation, is the plain meaning of the words. It gives a description of the solemnities which are to attend its execution. If there had been any other description of witnesses, it must [**8]  be admitted they must be such at the time, as for example, three Englishmen, three witnesses of forty-five years old, three justices; and how are these adjuncts distinguishable from the one in question?

But if the word credible be left out, and the word witness ex vi termini includes competence, it is necessary that the competence exists at the time of the execution; so either way our construction is right. An interested witness cannot be the one contemplated. The statute requires not attestation only, but that the witness should protect the testator.

The case on Worley's will (Powell, 31.) gave rise to the statute of frauds, and the statute was made to protect dying men from fraud, from imposition, from undue influence. Their business is to inspect his sanity. They are not passive as in other cases, but active and principal parties.

The meaning of the word credible must evidently mean competent witnesses; that is, unattainted witnesses, disinterested witnesses, not three men, not three competent witnesses in the loose sense, not three Baynhams bribed by a legacy to join in the fraud, and bribed again by payment to fix it. This is supported by Helier v. Jennyns, and [**9]  Ansty v. Dowsing.

The reasoning of Lord Mansfield on the civil law is by no means satisfactory or conclusive. By the conditio testium, was meant the positive capacity, or which means the same thing as the competence of the witness. The attestation was insufficient, from the want of a competent witness. The competency depended on the rank or quality of the witnesses, as free or bond, interested or not. The form prescribed required witnesses. The witnesses were required to have their competency at the time of execution. The text of the civil law evidently means more than the condition, because it refers to the case of an infamous individual. See the civil law. Tempore testamenti inspicitur cujus conditionis sit testis. Dig. 28. tit. 1. s. 22. Conditio testium tunc inspicere debemus cum signarent, non mortis tempore. Si igitur tunc cum signarent tales fuerit ut adhibere possent, nihil nocet si quid postea eis contigerit. In note on conditionem: Sint liberi vel servi hac enim est conditio. Non tamen servus factus testificabitur nec infames quia tempore testificationis conditio testis inspicitur. Cod. Lib. 6. tit. 23. s. 23. Conditio testis spectatur secundum tempus quo testamentum [**10]  signatur.

Justin. lib. 2. tit. 10. s. 11. Justinian, in declaring that the testimony of legataries and trustees should not be rejected, says, imo in quadam nostra constitutione et hoc specialiter eis concessimus.

Burr. 428. As to the will being void, quoad the particular devise to the witness, the report of Carthew must be erroneous. Four persons might divide the whole estate. In 1 Raym. 730. a legatee cannot be a witness to prove the will, because the legacy is devised to him. The ability is to the whole will. 3 Mod. 263.

As to the meaning of the word credible, see Burr. 117. Powell, 119. Credible witnesses are those who are permitted by law to give testimony; not credible ones are those who are not permitted. When the expression is applied to the person of a witness, it bespeaks him to be of capacity to deserve credit. The capacity meant a legal competence; the want of it from interest, produces something beyond the common effect--an absolute incapacity, including in it the want as well of credibility as of competence, and of course it is not like that interest which operates to the rejection of testimony from the presumption of bias, and may be removed by release.  [**11]  1 Burr. 422. as in Burr. 423. where a case is cited from Viner, in which it is said that where a person had a legacy given, and did release it, he was a good witness to prove the will.

The statute of Geo. II. it is admitted, on all hands, does not reach this case.

From these cases I conclude, 1st. That the witness Davidson was interested at the time of the subscription of the will; 2d. That a will attested by a witness interested at the time of subscribing, is void; 3d. That a release cannot overreach the disability, or relate back to give competency, or capacity, to the witness who is not competent at the time.

Shaaff, for the defendant. The case states that the lessors of the plaintiff are the heirs of Jacob Brown. That Jacob Brown, being seised in fee of the premises in question, made his last will, and devised the same away from the heir, to devisees in the will named, and among others to the children of Christiana Scott. That the will was attested by James Davidson and others. That James Davidson, at the time he attested the will, was married to one of the devisees in the will, to wit, Margaret Scott, one of the daughters of Christiana Scott, in the will mentioned.  [**12]  

The question submitted to the court is, whether James Davidson is a credible witness to the will of Jacob Brown, even if the said James Davidson and his wife, in due form of law, should convey and release all their respective interest, derived to the wife under the will?

I shall not contend that this case is in any manner affected by the statute of 25 Geo. II. c. 6. the devise in this instance not being direct to the witness, who is only consequentially interested by reason of the devise to his wife; and it seems to be the admitted doctrine, that this statute does not extend to any but the case of a direct devise to the witness himself. Therefore, this case is only to be considered under the statute of frauds.

The statute of frauds (29 Car. II. c. 3. s. 5.) enacts, "That devises and bequests of any lands or tenements, &c. shall be in writing, and signed by the party so devising the same, &c. and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses; or else they shall be void and of none effect." This is the clause in the statute on which the present question depends, and no part of any act of parliament, in our statute [**13]  book, has been the subject of so much difficulty and dispute as it has been; and in no one instance have courts so liberally extended the words of the law, as they have in this, for the purpose of carrying into effect the will of the testator.

In every part of the clause the construction has been liberal. It has been decided that the testator need not subscribe his name; if he writes it in any part of the will it is sufficient. 3 Lev. 1. 3 Mod. 219. Pow. on Dev. 61. It has been determined, that sealing a will is sufficient, without signing. 2 Stra. 764. Although that seems doubted in other authorities. Pow. on Dev. 67.

With respect to witnesses signing in the presence of the testator, it is well known to what lengths courts have gone to support the will, having determined that it is not necessary for the testator to see the witnesses sign; that it is not necessary to be even in the same room. It is sufficient if the testator is in such a situation that he might see the witnesses sign the will. (See the case of Russell and Lux v. Falls, June term, 1796.)

The same latitude of construction has prevailed in every other part of this statute, both in courts of law and equity.  [**14]  

Courts of law have determined that an executory contract for the sale of goods, if to be performed within a year, where no earnest is given, is not within the 17th sect. of this law. 1 Stra. 506. 4 Burr. 2101. They have decided that a conditional promise which may, or which may not, eventually be performed within a year, is not within the 4th sect. 3 Burr. 1278. 1 Ld. Raym. 316, 317.

Courts of equity have also acted on similar principles in the construction of this law, because it is the settled practice of those courts, to direct the specific performance of contracts for the sales of lands, which are in part executed; although there is no memorandum in writing evidencing the contract; which is altogether out of the letter of the act.

These instances are produced as not particularly applicable to the case before us, but only to show what has been the general ideas of courts on this act of parliament, and with what liberality they have uniformly expounded it, so as to effectuate the intention of the party. This, indeed, is avowed by Lord Mansfield, in 1 Burr. 421. and is essentially necessary from the very loose, inartificial manner in which that law is expressed, a law [**15]  of such extensive operation on society.

Having taken a general view of the statute, I will now proceed to consider that part of it which makes the attestation of three or four credible witnesses requisite to the validity of the devise. This is the case at bar.

It must be obvious that the word "credible" cannot relate to the individual character, or reputation of the witness, as it is universally admitted that a man of the meanest and most profligate character will be a sufficient attesting witness under the statute, if he does not labour under any legal incapacity at the time of attestation; that word must have been thrown in out of great caution, as is frequently the case; the word witness ex vi termini alone taking in the idea of competency; the whole of which is very ably urged by Lord Mansfield, in the case of Windham and Chetwynd hereafter cited.

The case being then deemed free from the difficulty of the word "credible" being introduced into the clause; the act of parliament will then only require the attestation of three witnesses, and we are only to inquire who, in point of law, they can be.

The act in this part of it, as in every other, ought not to have [**16]  a rigid construction, and if a man who labours under no positive incapacity attests the will, the law is gratified, but if the person is under such positive incapacity of being a witness in a court of justice, it would be otherwise. For example, a man stigmatized by receiving an infamous punishment, is under a total disability of being a witness, and no act of his own or any other individual can alter his situation in this respect. Such a person might properly be considered as not a credible witness under the statute of frauds.

But a man who is incompetent by reason of interest is under no personal disability of being a witness in general, and the cause of his incompetence, his interest, may at any time be destroyed, by a release from himself or some other individual, and by this means the presumption of bias wholly done away, which is the only cause of his incompetency at law.

The genuine construction of this statute seems to be that if the witness was interested at the time of attestation, yet he may be rendered a credible witness within the act, if his interest is released after the death of the testator. If this is a correct construction of the law, James Davidson is [**17]  a credible witness to the will of Jacob Brown.

However this may be doubted by some on the general reasoning as to the meaning of the law, yet it is apprehended that, upon an examination of the authorities, there can be no longer any doubt on the subject.

The first case in which the point occurred, now under consideration, was the case of Helier v. Jennyns, 1 Ld. Raym. 505. Com. Rep. 510. Carth. 514. In that case, as far as relates to the present point, the facts were these: Thomas Jennyns devised lands to William Helier, by a will to which William Helier himself was one of the attesting witnesses. Helier had never released, but claimed the land under the will. Here William Helier, at the time the question was agitated in court, was clearly interested to support the will, and one reason given by the court why he was not a competent attesting witness to the will, was, that he could not be considered as competent to prove his own subscription. Ld. Raym. 507.

This case, as can readily be seen, does not stand in the way of the one under consideration, because there was there no release of Helier's interest, nor any act done to qualify him, as is done in the present instance [**18]  to James Davidson.

Both before and after the determination of the case of Helier v. Jennyns, it was certainly the understanding of courts and of the bar, that a release or payment would qualify a witness to a will, who was disqualified at the time of attestation. The first which occurs to me, is the case of Pyke v. Crouch, 1 Raym. 730. It was there laid down by the court, that a legatee was not a witness to prove a will unless he had released, but after he had released the legacy, he was a competent witness.

The case of Pyke v. Crouch was on a trial at bar, which, from the solemnity of the decision, ought to have great weight, and it cannot be objected that it does not appear to have been a will of land, because, had it been a will of personal estate, the fact of its execution could not have come in question in a court of law; that matter being properly triable in the spiritual courts.

1 P. Wms. 557. Sir Robert Raymond there states the law to be the same as is laid down in Lord Raymond, 730. This argument of Raymond is not contradicted either by counsel or the court, and happened subsequent to the case of Helier v. Jennyns.

12 Vin. Abr. 14. tit. Evidence. Powis [**19]  declares on a trial at nisi prius, that it was solemnly agreed by the judges, that if a witness released, he might prove a will.

These authorities all prove that, in the judgment of lawyers, a release on payment would qualify an attesting witness; to which may be added the declaration of Lord Mansfield, in the case of Windham v. Chetwynd, in 1 Burr. 423. which will be cited more fully in future. There Lord Mansfield expressly alleges that it had always been so considered by the bar until the determination of the case of Ansty v. Dowsing.

Under the general idea of the operation of the release to qualify a witness to a will, was decided the case of Ansty v. Dowsing, 2 Stra. 1253. In that case James Thompson devised lands to Dowsing, and by the will charges his real and personal estate with payment of annuities and legacies, and particularly with an annuity of 20l. per annum to Elizabeth, the wife of John Hailes, for life, and gave a legacy of 10l. a piece to John Hailes and his wife; John Hailes was an attesting witness to the will. Before the trial a tender was made to John Hailes of 20l. for the legacies to himself and his wife, which was refused. No tender or release was [**20]  ever made of the annuity.

In this case it can readily be seen that John Hailes was clearly an incompetent witness under the determination of the case of Helier v. Jennyns, because it is not stated that there was a release of the legacy to him or his wife, but only a tender of the money, which, in point of law, was no extinguishment of the claim of the legatee, and there was not even a tender of the annuity, which was an equal claim on the land. It was, therefore, not necessary for the court to determine the operation of a release of a legacy as to the qualification of an attesting witness to a will, nor did the chief justice even say what would be the effect of such a circumstance in the determination of the question.

The Chief Justice Lee, to be sure, in that case, did say that the time of credibility was at the attestation; from hence it is inferred by those who object to the legal execution of wills in the present situation, that the court there were of opinion, that if the witness was interested at the time of attestation, nothing ex post facto could have the effect to qualify him. It is certain the operation of a release was not in question in that case, and whatever [**21]  may be the strict unqualified meaning of the short laconic expressions of the chief justice, it is equally certain that he has not expressly determined the effect of a release in such cases. But taking the expression of the chief justice in their greatest latitude, they only declare his own opinion; and it appears by a subsequent authority that the judgment of the court in Ansty v. Dowsing was upon the particular circumstances of the case; and Mr. Justice Denison, who sat in it, was not of opinion that the objection of interest at the time of subscribing might not be taken off. 1 Burr. 427, 428. Lord Mansfield's argument.

In all probability the extent of the doctrine, as laid down in the general language of the chief justice, passed unnoticed, and it is not unlikely that it was some time after the determination took place, before the extent of the doctrine was discovered; as it was six years after the decision of the case before the statute of George was made, Ansty v. Dowsing being determined in 19 Geo. II. and the statute passed in 25 Geo. II. which law was given rise to by the alarm the practitioners took at the principles supposed to be established by that case.

The next [**22]  case in which this question came before the court, was the case of Price v. Lloyd, 1 Vez. 503. 2 Vez. 374. The bill was for the establishment of a will. On the interrogatories it appeared that one of the witnesses was a creditor of the testator, and had not released. On an account stated it appeared, that he was not a creditor at the time of examination, and it not appearing that he was so at the time of attestation, the chancellor, Lord Hardwicke, would not permit a minute inquiry into the business.

Lord Hardwicke said that the case of Ansty v. Dowsing was brought into the exchequer chamber, and the judges were divided. The case was compromised by the parties, and not determined. He likewise said, "It was going a great way to say that if a legatee released, it would not make him a good witness."

This case of Price v. Lloyd clearly shows Lord Hardwicke's opinion to be different from the general doctrine of Lord Chief Justice Lee, as laid down in the case of Ansty v. Dowsing, and had the point come directly before him, there is the strongest reason for supposing that his judgment would have been different from the principles supposed to be advanced in that case.

After [**23]  the passage of the statute of Geo. II. before mentioned, cases occurred which were supposed not to be affected by that statute, and the above principles were again considered in the case of Windham v. Chetwynd, 1 Burr. 414.

This case was on a special verdict by which, as far as is necessary for this purpose to be stated, it was found, that the testator charged his real and personal estate with the payment of debts and legacies, and died, leaving a personal estate more than sufficient for the payment of both; that the witnesses to the will were creditors of the testator, but that after his death, and before their examination, they were paid their respective claims.

In this case, Lord Mansfield went largely into the effect and operation of a release to a witness to a will, considered all the cases on the subject, and particularly the case of Ansty v. Dowsing, and determines that although a witness was interested at the time of attestation, a release would make him a good subscribing witness to a will under the statute of frauds.

It appears from the reporter that this was delivered as the opinion of the court, (see 1 Burr. 417.) notwithstanding what is said by Powell, in [**24]  his Essay on Devises, page 128. and it is hardly possible to suppose that the puisne judges who sat in the case of Windham v. Chetwynd, would have permitted the single opinion of the chief justice, on a point of so much litigation and importance, to go forward to the public as the opinion of the court, if they did not concur with him.

The same question came again to be agitated in the case of Hindson v. Kersey, vide 4 Burn's Eccl. Law, 88. Pow. on Dev. 130. In that case it is stated that John Knott devised his land to trustees upon trust to apply the profits to the benefit of poor people of a certain description, in the lordship of Maulsmeaburn; that Henry Holmes, Robert Burra, and John Mitchell, were the attesting witnesses to the will; that Holmes and Burra were two of the trustees under the will; that all the witnesses under the will held land in the lordship of Maulsmeaburn, in respect whereof they were chargeable and taxable, and actually charged with, and paid taxes towards the support of the poor of the said parish. That before the trial Holmes and Burra, two of the trustees, released their interest under the will to the other trustees, and that all the witnesses under [**25]  the said will disposed of, and conveyed, the whole of their land in the lordship of Maulsmeaburn.

In this case the witnesses to the will at the time of attestation were clearly interested to support the will, because, as they held lands in the particular lordship in respect whereof they were taxable for the support of the poor, the devise of John Knott, being for the benefit of the poor of that lordship, operated to their advantage by making the burden lighter; and, consequently, it was wholly and alone for the court to consider whether the conveyances of their interest in the lordship were sufficient to make them competent when they were not so at the time of attestation. This, in fact, was the only point considered by the court, and the judgment of the court was, that the will was well executed, and that a witness, incompetent by reason of interest at the time of subscription, might be rendered competent by matter ex post facto, as by release or payment.

This case of Hindson v. Kersey, is fully reported in the 4th volume of Burns's Eccl. Law, and is a case in which the point now under consideration was alone determined, it being the only point in the cause. It was decided [**26]  by Clive, Bathurst and Gould, although Pratt, Chief Justice thought differently; but it is presumed that the opinion of the chief justice, however ingenious and able it may have been, will not be sufficient to overbalance the judgment of the other judges in that case, together with the adjudication of the king's bench in Windham v. Chetwynd, and the opinion of gentlemen of the profession antecedent to the case of Ansty v. Dowsing.

The different authorities which are cited by the plaintiff's counsel have, in my consideration of this subject, been attended to, and my ideas on them suggested. I will, therefore, only take notice of a few of the principal arguments.

It is alleged by the plaintiff's counsel, that a majority of judges and decisions are against the will in cases of this nature. I think a moment's reflection and attention to the authorities will show the reverse.

Ansty and Dowsing is the only case in which the court has thrown out an opinion which favours the doctrine that credibility is necessarily attached to the time of attestation, and in that case was only the opinion of the chief justice, and not of the court, and Denison thought different, as appears by [**27]  1 Burr. 427, 428.

In Helier and Jennyns there was no release. In the case of Price and Lloyd, it is evident that Lord Hardwicke thought that the release would qualify the witness.

In Windham and Chetwynd, Lord Mansfield, and it would seem that the rest of the judges, held the release was sufficient.

In Hindson and Kersey, it was expressly determined that the release would render the witness competent.

To which cases may be added the opinions before cited, and the different dicta of judges and counsel, before the determination of the case of Ansty and Dowsing. Hence I think it may be fairly concluded, that the weight of decision is in favour of a will circumstanced like the present.

It may not be improper here to mention a passage in Pow. on Dev. 133. in which he seems to hint that the opinion of the Lord Chief Justice Lee, as delivered by him in Ansty and Dowsing, was the opinion of the whole court as to the time of credibility, and that some of the judges differed from Lord Mansfield, in Windham and Chetwynd, upon the general question; it must be remembered that the opinion of Lord Chief Justice Lee was not the opinion of the court, as appears by 1 Burr. 427,  [**28]  428. and from what has been before said, there can be no doubt but that the judgment in Windham and Chetwynd was the judgment of the court.

It is also alleged by the plaintiff's counsel that the dictum of Powis, in Vin. Abr. before referred to, was the case of a personal legacy, seeming to infer that there was a difference as to the effect of a personal legacy and a devise of land; but, upon every principle of common sense, the consequence of a personal legacy, and a devise of land, must be the same; a man may be as completely interested by having a personal legacy willed to him, as the devise of real estate; and he may as completely release the one as the other; therefore, as to the present question, the effect must be the same, and the legal consequences have been adjudged to be the same, because, in the case of Hindson and Kersey, the devise was of land, and the court determined the conveyance and release of the interest of the witness, was sufficient to qualify him to be a competent witness.

It is also alleged by the plaintiff's counsel, that interest is a positive incapacity. In answer to this I need only produce the argument of Lord Mansfield, in the case of Windham [**29]  v. Chetwynd, in which he clearly draws the line between a positive incapacity, and the incapacity arising from interest.  

JUDGES:
CHASE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*530]  CHASE, J. delivered the following opinion: The question submitted to the court, by the case stated in this suit is, whether James Davidson, one of the subscribing witnesses, who attested the will of Jacob Brown, and who, at the time of the attestation of the said will, was married to Margaret Scott, one of the devisees under the will, is a credible witness for the purpose of proving the 

 [*531]  will, upon his and his wife's joining in a release of all their right and interest under the will?
This case must be decided according to the statute of frauds and perjuries, and the principles of the common law, as to the mode of proof of the attestation.
The word credible, in this clause of the statute, cannot be taken according to its most common and usual signification and import; for a question concerning the credibility of a witness cannot arise until his competency is admitted. The question of competency is determinable by one tribunal, the court; and the question of credibility by another tribunal, the jury,  [**30]  upon the issue devisavit vel non: and where a spirit of litigation prevailed, no will could be established without undergoing a discussion before a jury, whether the witnesses were credible or not; so that whether a will was executed agreeable to the statute, would be eventual, and depend on the opinion of the jury, as to the credibility of the witness, which would frustrate the provision of the statute, by putting it out of the power of the testator, let his understanding or caution be ever so great, to comply with that part of the solemnity, and to avoid the question, whether the witnesses were credible or not, and upon this ground that meaning ought to be rejected.
If, according to the opinion of Lord Mansfield, the word credible crept in from want of attention to its meaning, or from the inaccuracy of the penman, or from its being used in the statutes relating to convictions before justices in a summary way, or whether, according to the opinion of Lord Camden, it means competent: in either case it must be rejected as superfluous and nugatory; for competency is included in the term witness, so the clause must be considered as if it stood without the word credible. [**31]  
All persons in general are capable of attesting a will as witnesses who are not infamous, insane, or so young as to want discretion. 3 Bl. Com.

 [*532]  Every person who attests a will as a witness must be competent to attest the will at the time of attestation, and no subsequent act can restore him to competency who was incompetent at the time of his attestation so as to give validity to the will; and e converso, he who was competent as a witness at the time of attestation, cannot be rendered incompetent, so as to destroy his attestation to the will.
A person who is competent to attest a will, may be incompetent to prove it, from the circumstance of his deriving an interest under it.
A legatee or devisee is a competent witness to attest a will, and whether he is competent to prove it or not, will depend on the circumstance of his releasing or refusing to relinquish his interest under the will.
A legatee or devisee has no interest in the legacy bequeathed, or property devised, at the time of his attestation. His interest is contingent, and a mere possibility. His interest is like that of an heir at law, who is allowed to be a competent witness in disputes relating to [**32]  the land of his ancestor.
The interest of the legatee or devisee cannot attach nor exist until the death of the testator. The will may be cancelled or revoked by a subsequent will; so that it is nothing more than a possibility of interest.
The interest which disqualifies or incapacitates a witness is an actual subsisting one, and not a future, contingent, or possible interest; and no stronger instance can be adduced than that of the heir at law, which is exactly analogous to that of the devisee or legatee. Vide 1 Salk. 283. Buller's N. P. 284.
In one case the possible interest of the heir apparent will attach or vest, if the ancestor dies without a will. In the other case the possible interest of the devisee or legatee will vest if the testator dies without making a new will, or cancelling the old.

 [*533]  The presumption of bias on the ground of interest is as strong in one case as in the other.
It is contended that a legatee or devisee is incompetent to attest the will on the ground of interest. A case has occurred to me, which, I think, proves the fallacy of this position. Suppose the legatee dies before the testator, and the legacy is a lapsed legacy. In such [**33]  case the legatee never had any interest, and yet he is to be adjudged an incompetent witness to attest the will on account of his interest, and the will is to be held void. Further to elucidate the point, and to prove the legatee has no interest at the time of attesting the will, to disqualify him as a witness, suppose A. being seised of a tract of land called Blackacre, makes his will, which is executed according to the statute, and devises it to B.; the will is known and its contents, a dispute arises in the lifetime of A between him and C., who holds an adjoining tract called Whiteacre, respecting the bounds of Blackacre, and an ejectment is brought; B. the devisee, is produced as a witness to prove some of the bounds of Blackacre; an objection is made to him as being incompetent, being a devisee under the will of A. of Blackacre; the will and devise is admitted or proved, could the court adjudge him to be an incompetent witness? I think the court would say without hesitation, his interest was contingent, and a mere possibility, and that no stronger objection lay against him than against an heir at law, who is allowed to be a legal witness [**34]  in a dispute, relative to the land of his ancestor.
I will endeavour to explain my position, that a legatee may be competent to attest, and incompetent, or competent to prove the will, according to his retaining or releasing his interest derived under the will, when he is called upon to prove it.
When the will is attested by three witnesses, and clothed with the other solemnities prescribed by the statute, it then becomes necessary to prove the attestation by the 

 [*534]  witnesses whose names are subscribed, and also a compliance with the other requisites. The witnesses, if living, must be called on to prove their attestation; because it is the best evidence. If any one of the witnesses should, as legatee or devisee, derive an interest under the will, such witness would be rejected as incompetent to prove his attestation, on the ground of interest, unless such interest was released; and no inferior kind of testimony could be resorted to or admitted to prove his attestation, and, consequently, there would not be proof that the will was attested by three witnesses. Esp. N. P. 755, 756. Bull. N. P. 264. The will must be proved by all the witnesses.
A will to transfer real [**35]  property under the statute, must appear to have the solemnities required by the statute, and proof must be adduced of such solemnities, and the best evidence must be given, and the best evidence is the proof of the witnesses themselves.
If in the interval between the attestation and the proof of the will, any of the witnesses should become infamous, be insane or die, proof of the attestation of such witness, by the other witnesses, would be received as legally admissible, because the best evidence. 2 Strange 1109.
It is said by Chief Justice Lee, in Ansty and Dowsing, that the allowing a devisee or legatee to be a witness to attest a will would be opening a door to fraud.
The admission of a legatee or devisee as a witness to attest the will, will open no door to fraud. The witnesses do not know the contents of the will, nor is it necessary they should; therefore, it is not to be presumed that the witness, if he is a legatee, knows any thing of it at the time of his attestation.
When fraud is practised, the persons who are capable of practising it generally clothe the transaction with all the necessary forms and solemnities. If the will is obtained by [**36]  fraud, the heir at law can give evidence of it 

 [*535]  to defeat the will. Bull. N. P. 266. Fraud is examinable in a court of law.
The Court are of opinion that James Davidson is a credible witness for the purpose of proving the will, upon his and his wife's joining in a release of all their right and interest under the will, and on the case stated, give judgment for the defendant.
The plaintiff appealed, and, at November term, 1799, the court of appeals affirmed the judgment of the general court.  

9 of 37 DOCUMENTS 

William Goodwin's Lessee against Henry Keerl.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 403; 1795 Md. LEXIS 14 

October, 1795, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Ridgely's Delight, containing 309 acres, lying in Baltimore county.

By the case stated for the opinion of the court, it is agreed that Charles Ridgely, of Baltimore county, being seised in fee of a parcel of land, being part of a tract of land called Ridgely's Delight, lying in the said county, on the 30th of May, 1748, by his deed indented, bearing date the same day and year, and duly executed, acknowledged and recorded, did, for the consideration of love and affection, and the further consideration of five shillings, convey to John Ridgely the tract of land called Ridgely's Delight, containing 260 acres: "To have and to hold the said tract to the said John and his heirs, for the use of the said John, for and during his natural life, and after the death of the said John, to and for the use of Charles Ridgely, son of the said John, and his heirs for ever."

It is also agreed that John Ridgely in the said deed named, was the son of the said Charles Ridgely, lawfully begotten of Rachel his wife, and that Charles Ridgely the younger, in the said deed named, was the son of the said John Ridgely, lawfully begotten of Mary his wife, and was [**2]  living at the time of the execution, acknowledgment and recording of the said deed.

It is also agreed that immediately after the execution of the said deed, and in virtue thereof, the said John Ridgely entered into the land and premises therein mentioned, and was thereof seised as the law requires; and that being seised and possessed thereof, the aforesaid Charles Ridgely the younger, on or about the 30th of August, departed this life intestate, and without issue, leaving a sister named Achsah, then living, who was the daughter of the said John Ridgely, lawfully begotten of his wife aforesaid.

It is also agreed that the said John Ridgely had no issue except the said Charles Ridgely the younger, and the said Achsah, until the birth of the son hereinafter mentioned; and that the said Achsah, after the death of the said Charles Ridgely the younger, was married to William Goodwin, by whom she had issue William Goodwin, junior, the lessor of the plaintiff, her only son and heir at law, and shortly thereafter died.

It is also agreed that after the death of the said Charles Ridgely the younger, and before the death of the said Achsah Goodwin, the said John Ridgely, still seised [**3]  of the land and premises in said deed mentioned, had issue lawfully begotten of his wife aforesaid, a son named Charles Ridgely; and some time after the birth of the said son, to wit, in or about the year 1770, departed this life. That the said last-mentioned Charles Ridgely, after the death of the said John Ridgely, entered into the said land and premises, and was thereof seised as the law requires, and being so seised and possessed, did, on the 11th of December, 1786, duly make his last will and testament in writing, whereby he directed fifty acres of the land called Ridgely's Delight, part of the same land conveyed by the deed before mentioned, to be sold for the payment of his debts by his executors, Rebecca Ridgely and John Ridgely, (son of John,) named as such in the will aforesaid.

That after the making of the said last will and testament, to wit, on the 15th of December, 1786, the said testator, Charles Ridgely, departed this life, and that the executors named in the will took upon themselves the burden and execution of the trust reposed in them in and by the said last will and testament.

It is further agreed that on the petition of the said Rebecca and John Ridgely,  [**4]  executors as aforesaid, it was, on the 24th of May, 1787, ordered and adjudged by the high court of chancery of this state, that the said Rebecca and John be appointed trustees to convey the said fifty acres of land, (being part of the tract of land called Ridgely's Delight,) when sold to the purchaser or purchasers thereof, agreeably to the last will and testament of the said Charles Ridgely.

It is further agreed that the said Rebecca and John, according to the last will and testament of the said Charles, and in pursuance of powers in them vested by the said will and decree aforesaid, did duly sell and convey by deed duly executed, acknowledged and recorded, bearing date on the 4th of September, 1790, to the defendant, Henry Keerl, part of the said 50 acres of land, being the same land in the declaration mentioned; and that under the said deed, the defendant entered into the land thereby conveyed, and was seised as the law requires.

It is also agreed that William Goodwin the younger, the lessor of the plaintiff, at the time of the death of the said John Ridgely, was a minor under the age of twenty-one years, and that at the time of the commencement of this suit, he was only [**5]  of the age of twenty-three years.

It is further agreed that the said lessor of the plaintiff executed a lease of the land and premises in the said declaration mentioned to the plaintiff; that the said plaintiff, by virtue thereof, afterwards entered into the said land and premises, and was of the same possessed; and that the defendant in this cause afterwards entered upon the possession of the plaintiff and ejected him from his term.

And if the court shall be of opinion, upon the whole matter, that the plaintiff is entitled to recover, then judgment to be entered for the said plaintiff for possession and costs; if otherwise, judgment of nonsuit to be entered.  

DISPOSITION:
Judgment for the defendant.  

COUNSEL:
Martin (Attorney-General) and Ridgely, for the plaintiff.

Pinkney, for the defendant. On this case only one question can arise. Whether Achsah, or her brother Charles, was heir to their brother?

The case is briefly this: Land is conveyed to A. for life, the remainder in fee to B., who dies leaving a sister of the whole blood, and afterwards a brother of the whole blood is born. Is the sister or the afterborn brother heir to B.?

The sister was heiress of B. until the birth [**6]  of her brother, and the remainder in fee descended on her till that event; but the instant her brother was born, the descent shifted from her to him. On the death of Charles Ridgely the younger, (say the first Charles,) the remainder in fee descended on, and became vested in, his sister Achsah, and there remained until the birth of her brother Charles, (the second Charles,) when by operation of law, her remainder in fee was devested, and shifted to, and descended on, her said brother. If he had died without issue and she had survived, the estate would again have descended on her; and on the birth of another brother, would again have been devested and shifted to him. Powell on Descents, 438. cites 5 Edw. IV. c. 6.

The first general rule concerning descents is, that the law prefers the worthiest of blood, and therefore in descents, the male is preferred before the females, viz. the son before the daughter, the brother before the sister, and the uncle before the aunt. 2 Bl. Comm. 211, 212, 213, 214. 2 Bac. Abr. 27. 1 Wood's Convey. 20. Co. Litt. 14. a.

If a man dies seised of land, his wife pregnant, his land descends to his daughter, brother or uncle, and afterwards a son is [**7]  born, he shall enter on the daughter, brother or uncle. Co. Litt. 11. b. 2 Bl. Comm. 208.

If husband and wife seised in tail general had issue a daughter, and afterwards the husband dies, his wife pregnant, and the wife aliens, and upon which the daughter enters by virtue of 11 Hen. VII. c. 20. and a son is afterwards born, he shall enter upon her; for by the statute the daughter was in quasi by descent. 3 Co. 61. b. 1 Co. 102, 103. It is otherwise if the estate vests in the daughter by purchase and not by descent, in which case, a brother born afterwards would not devest the estate. 14 Vin. Abr. tit. Heir, 263. pl. 16. 3 Mod. 256. 3 Wils. 516. 2 Cro. 161. 2 Roll. Abr. 709. Co. Litt. 15. b. 2 Bac. Abr. 28. 30. Gilb. Evid. 245. 248. 3 Bac. Abr. 639. Cro. Car. 87. 1 Co. 99. b. 100. a. Co. Litt. 11. b. 1 Co. 55. a. 5 Term Rep. 60. 64. 8 Vin. Abr. tit. Descent, 10. (N. 13.) Powell on Desc. 438.  

OPINION:

 [*407]  The Court gave judgment, on the case stated, for the defendant.  

10 of 37 DOCUMENTS 

JAMES M'CREERY'S Lessee vs. WILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 412; 1799 Md. LEXIS 31 

October, 1799, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for lot No. 106 in the city of Baltimore, in that part of the said city called Fell's Point. The following statement of facts was agreed upon and submitted for the court's opinion thereon, viz. Benjamin Nelson being seised in fee simple of two lots of ground in the town of Baltimore, viz. No. 46 and No. 106, died intestate, leaving two daughters Elizabeth and Susanna, his heiresses, to whom the said lots descended in coparcenary. That Elizabeth, one of the said daughters, intermarried with one John Pannell. That on the 18th of August 1789, Pannell and wife, and Susanna the other daughter, executed a deed of partition of the said lots, by which lot No. 46 was allotted to Pannell and wife, and lot No. 106 to Susanna, to hold to them, and their heirs respectively, the said respective lots in severalty. That the said Susanna afterwards intermarried with Thomas M'Creery, who then was a subject of the king of Great Britain. That on the 6th of November 1793, the said M'Creery and wife, by deed of bargain and sale, duly executed, acknowledged and recorded, for a valuable consideration in money, conveyed the said lot No. 106 to one James Beaman, and his heirs, in fee simple. That [**2]  the said Beaman entered, and afterwards on the same day, by deed of bargain and sale, &c. conveyed the said lot to the said Thomas M'Creery, and his heirs, in fee simple. That the said Susanna died on or about the 1st of July 1794, and that the said M'Creery, in order to become a citizen of Maryland, and to become naturalized according to the act of assembly in such case made and provided, on the 30th of September, 1795, took the oath, and repeated and signed a declaration of his belief in the christian religion, as mentioned and set forth in the preceding action between John M'Creery's lessee and Joseph Allender. That the said Thomas M'Creery entered into the said lot, under the said deed from the said Beaman, and continued possessed thereof until the time of his death, which happened on or about the 23d of February 1796, That he made his will on the 18th of January 1796, and devised the said lot to his brother James M'Creery, the lessor of the plaintiff, as set forth in the above mentioned case. That the said James M'Creery, the devisee in the said will, and lessor of the plaintiff, was at the time of the death of the said Thomas, and yet is, an alien, and subject of the king of [**3]  Great Britain.  

DISPOSITION:
Judgment for the plaintiff, for possession and costs.  

COUNSEL:
Martin, (Attorney General,) for the plaintiff.

Winchester, for the defendant.  

OPINION:

 [*413]  THE GENERAL COURT gave judgment, on the statement of facts, for the plaintiff, for possession and costs.  

11 of 37 DOCUMENTS 

Joseph Guttrue against Thomas Langton, use of John M'Lure.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 178; 1793 Md. LEXIS 24 

October, 1793, Decided 

PRIOR HISTORY:
 [**1]   REMOVAL by appeal from Baltimore county court. The case as stated in the record transmitted, is as follows: "That Guttrue, the defendant, was indebted to Langton, the plaintiff, on the 1st of May, 1790, in 300l. current money, and that the plaintiff, Langton, was, on the same day, indebted to a certain Humphrey Richards, in 300l. current money; that Richards issued out of Baltimore county court a writ against the said Langton, which, at August term, 1791, was returned non est; at which said term judgment for attachment was had, which was laid afterwards, on the 20th of September, 1791, in the hands of Guttrue, the defendant in this cause, as garnishee of the said Langton, and afterwards, at March term, 1792, a condemnation was thereon entered; after which condemnation the said Guttrue paid over the sum of money in his hands, to wit, the debt for which this suit is brought, on the 2d of May, 1792, to the attorney of the said Richards, who gave a receipt for the same; that the debt claimed in the said suit, is the same on which the said attachment was laid; which said attachment was afterwards, on the 30th of July, 1792, during the continuance of March term, 1792, and by adjournment [**2]  to the said day of July, dissolved by the said Langton's coming and entering special bail to the original action, and the said condemnation struck out. On which original suit a judgment was thereon had at August term, 1792; that the debt due to the said Langton from the said Guttrue, on the 1st of August, 1791, by the order of the said Langton, was directed to be paid to John M'Lure; and that on or about the 1st day of August, 1791, the said Guttrue had notice of such order being drawn, given him by the said Langton, and directed him to pay the said money to the said M'Lure; and that on the 26th of September, 1791, this suit was commenced for the use of the said M'Lure against the said Guttrue."

Judgment by the county court upon the said case for Langton, the plaintiff, at March term, 1793.  

DISPOSITION:
Judgment of the county court reversed, and a writ of restitution issued.  

COUNSEL:
Hollingsworth, for the appellant.

D. M'Mechen, for the appellee.  

OPINION:

 [*179]  The general court reversed the judgment of the county court, and a writ of restitution issued to May term, 1794.  

12 of 37 DOCUMENTS 

WHETCROFT vs. CHRISTIE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 385; 1799 Md. LEXIS 23 

June, 1799, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the court of chancery, dismissing the bill of complaint. The bill states, that the complainant purchased of the defendant at Baltimore, in May 1775, thirty-one servants, at 9l. 10s. Od. sterling each, one half to be paid in hand, and the other half in six months, on giving security. That the complainant did not pay the cash in hand, but proposed to send the money from Annapolis to Baltimore on his return home; and entered into two separate bonds, with Bernard O'Neill security, one bond conditioned for the payment of 147l. 5s. Od. sterling in a few days, and the other conditioned for the payment of the like sum in November following. That on his return to Annapolis he sent to his correspondent Mr. Lynch, bills and cash to the amount of the first bond, and requested him to pay the same to the defendant in discharge thereof. That the said Lynch shortly after sent to the complainant the said first bond, which the complainant cancelled, and which has been since burnt with his other papers, when his house was burnt down. That afterwards the complainant sent the defendant Daniel Stephenson's bill of exchange for 100l. sterling, for which the defendant sent a receipt [**2]  dated 16th June 1775. That he afterwards forwarded to the said Lynch, to be paid to the defendant, a bill of exchange for 22l. 4s. Od. sterling, and 10l. 7s. Od. sterling in cash, which he believes the said Lynch paid. That he ought to be allowed fourteen guineas for one of the servants returned to the defendant at his request, &c. That these payments, &c. amount to 147l. 5s. Od. and fully discharged the said second bond. That the defendant soon afterwards left the state, and the complainant could not ascertain in whose hands the said bond had been deposited. That he was called upon in 1787, by J. Jaffray, for payment of the said bond, which the defendant refused, and suits were thereon brought against the complainant, and his security, in the general court. That the said O'Neill, the security, permitted judgment to be entered against him at May term 1788, for the full amount of the said bond, to be released on payment of 147l. 5s. Od. sterling, with interest from the 6th of May 1775, to the 4th of July 1776, and from the 3d of September 1783 till paid, and costs; and on the docket of the said court there is an entry made that the said judgment is to be subject to terms filed; which [**3]  said terms cannot now be found; but he alleges that the purport of them was, that the said judgment was to be regulated by the event of the suit commenced against the complainant on the same bond. That on the trial of the said suit against the complainant, the jury allowed him for the said payment of 100l. sterling, but the complainant, not being in possession of any evidence to prove the other payments, &c. a judgment was entered on the verdict for the penalty of the said bond, to be released on the payment of 118l. 7s. 11d. current money, with interest thereon from the 26th of May 1791, till paid, and costs. Upon which judgment the defendant's attorney or agent has threatened to issue execution, &c. whereby the complainant will not only be compelled to pay the said sum last mentioned, but also the difference between that sum and the sum for which judgment has been obtained against the said O'Neill his security. Prayer for injunctions, &c. which were granted.

The defendant, by his answer, states, that on the 5th of May 1775, he sold 31 servants to the complainant, (Bernard O'Neill security,) at 9l. 10s. Od. sterling each, one half payable on the 16th June, and the other on the [**4]  6th of November. That on the 17th June 1775, he received Stephenson's bill of exchange for 100l. sterling, in part of the price of the servants. That one of the servants, a doctor, was not delivered, for which he abated fourteen guineas. That about the 28th of July 1775, he received a bill of exchange for 22l. 4s. Od. more, in part payment for the servants, and at the same time he received 10l. 7s. Od. in cash. That the receipt mentioned in the complainant's bill was for the identical bill of exchange for 100l. before mentioned. That the foregoing different sums amounted to 147l. 5s. Od. were received in payment of the bond for the one half of the said servants, which was payable on the 16th of June as before mentioned. A commission issued and testimony taken, &c.

HANSON, Chancellor, (May term 1795.) The facts that appear from the bill, answer and proofs, uncontroverted by either party, are these--In May 1775 the complainant, with Bernard O'Neill his surety, executed, for a valuable legal consideration, two bonds, each of which was conditioned for the payment to the defendant of 147l. 5s. Od. sterling, the first bond payable in June following, and the second bond payable in November [**5]  following. On the 28th of July 1775, the complainant had paid, in bills of exchange and money, divers sums, which with 14 guineas deducted on account of a servant man, amounted exactly to 147l. 5s. Od. sterling, the sum for which each of the bonds was passed. Some years after the termination of the war with Great Britain, an action was brought in the general court, on the second bond, against each of the obligors. In the action against the principal, judgment was obtained on the verdict of a jury, for the amount of the principal, with such interest as is usually given to British creditors, (the defendant being considered as a British creditor,) deducting the sum of 100l. sterling for a bill of exchange paid on the 16th of June 1775. Against the surety judgment was obtained for the whole principal, with interest as aforesaid. And on the complainant's bill filed in this cause, injunction was granted to stay proceedings on both judgments.

It is now the chancellor's business to determine, from what appears on the proceedings, whether or not the injunction shall be dissolved; and if it be dissolved, on what terms the dissolution shall be granted; or to what amount the defendant shall [**6]  be allowed to levy on each of the defendants at law by his execution.

The complainant alleges in his bill, that the first bond was by him fully discharged before the deduction aforesaid of the 14 guineas, and before any of the payments aforesaid in bills and cash were made. The defendant expressly denies this by his answer; and the complainant has not produced any proof whatever to establish his allegation.

Equally defective in proof is he with respect to another allegation, viz. that the judgment against his surety was to depend on the event of the trial in the action against himself. Indeed he has not produced the smallest evidence to establish any one material fact charged in the bill which is denied by the defendant. There is therefore, nothing to justify a continuance of the injunction with respect to himself; and the only question to be considered is, whether or not the defendant shall be allowed to levy by his execution at law against the surety a greater sum than that for which he obtained judgment against the principal.

There can be no doubt, that where a man becomes security for another, he cannot be justly indebted to the obligee on the bond passed by him [**7]  and his principal, a larger, or any other sum than justly is due from the principal; but it is not impossible for the principal to be discharged from the debt, or a part thereof, whilst the security remains liable at law, without being entitled to relief in equity. The situation of the surety in the present case appears to the chancellor to be precisely so. He is liable at law for 100l. sterling, with interest, more than his principal is liable for, and nothing has been shewn to entitle him to relief from this court; on the contrary, it appears that the principal ought to be liable for as much as the security.

The chancellor by no means would be understood to determine expressly against the verdict of a jury, when neither fraud nor surprise has been alleged. The jury, by allowing the complainant credit for 100l. on account of the bill of exchange paid on the 16th of June 1775, did not find the only fact on which the case here depends; nor ought the chancellor's refusing to allow the surety the same credit to impress an idea that the chancellor either sets aside the verdict, or determines that the surety in a bond is justly indebted more than his principal.

The dispute in [**8]  this court is not whether the said sum was paid. It is whether the first bond was discharged before that and other sums were paid; and this is a question which does not appear to have been before the jury. When the suit at law was brought on a bond for 147l. 5s. Od. passed in May 1775, and the defendant proved the payment of 100l. in June following, the jury could not do otherwise than give credit for the payment; unless it had been stated to them that the payment was applied towards the discharge of another claim. The bill does not state that on the trial there was an inquiry into all the transactions between the parties. It is extremely probable that the counsel of the plaintiff had not been apprised of the circumstance of two bonds passed on the same day; and this case may well serve to shew the danger of such transactions. The verdict, in truth, establishes nothing more than that the complainant, in May 1775, passed a bond to the defendant for 147l. 5s. Od. and in June following paid him the sum of 100l. all this appears from the bill and answer; from which appear other important facts which are not even alleged to have been stated to the jury.

The complainant has obliged [**9]  the defendant to answer his allegations on oath. The answer is full, clear and explicit. It denies expressly every matter on which the complainant grounds his equity, and not a title of proof has been adduced to prove it. In short, there does not appear any reason wherefore the defendant should not be restored, as nearly as may be, to the situation he was in, before this court interposed on the mere affidavit of the complainant.

THE INJUNCTIONS were dissolved, and the bill dismissed, with costs to the defendant.

The complainant appealed to the Court of Appeals.  

DISPOSITION:
Affirmed.  

COUNSEL:
Key, for the appellant.

Cooke, for the appellee.  

OPINION:

 [*389]  THE COURT OF APPEALS, at this term, affirmed the decree of the court of chancery.  

13 of 37 DOCUMENTS 

CARROLL et al. Lessee, vs. E. & S. NORWOOD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 287; 1799 Md. LEXIS 5 

May, 1799, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT on seven separate demises for two tracts of land, one called Enlargement, and the other called Brown's Adventure, lying in Baltimore county. The defendants took defence on warrant, and plots were made and returned.

1. The plaintiff at the trial, to support the issue on his part, produced a certificate of survey, made for and in the name of John Israel, bearing date the 10th of January 1720, for a tract of land called "The Enlargement," lying in Baltimore county, containing 100 acres of land, more or less. Also a grant to the said John Israel, dated the 10th of July 1724, for the said land called The Enlargement. Also the will of the said John Israel, dated the 13th of January 1723, devising the said land to his sons John L. Gilbert T. and Robert Israel, which will was proved by the subscribing witnesses thereto on the 11th of March 1723. He also produced several mesne conveyances from the devisees of the said John Israel, down to the lessors of the plaintiff.

The defendants proved that the said John Israel, for whom the said certificate of survey was made, died before the issuing of the patent aforesaid in his name; and thereupon prayed the direction of the court [**2]  to the jury, that the said patent was void; and that the lessors of the plaintiff, having produced the said certificate and patent, and claiming title under the same, that the jury could not presume a patent had issued to the devisees of the said John Israel for the said land.  

DISPOSITION:
PROCEDENDO AWARDED.  

COUNSEL:
Martin, (Attorney General,) and Key, for the plaintiff, to this objection answered, that John Isruel haying acquired an equitable interest in the land under the certificate of survey, the patent related to the date of the certificate, and passed the title from that time; and moreover, supposing the patent void, the jury after the great lapse of time which had intervened, ought to presume a grant issued to the children and devisees of John Israel.

Ridgely and Mason, for the defendants, replied, that if the patent was void, as they contended, then being an absolute nullity it could not have relation nor any operation. That presumptions were made of the existence of facts not appearing;--not that facts existed different from those actually shewed by the plaintiff to have existed. And of that opinion was DUVALL J.

But CHASE, Ch. J. and DONE, J. were of opinion, and directed the [**3]  jury, that John Israel acquired an equitable interest in the land called The Enlargement, in virtue of his certificate of survey; which equitable interest was transmissible by last will. And John Israel having devised the said land, among other lands, to his three sons, as tenants in common in fee, and the plaintiff having deduced and shewn a title in the said land from the devisees of the said Israel, by sundry mesne conveyances, the jury may and ought to presume a patent issued to the sons of the said John Israel, from the great length of time which has elapsed since the date of the said certificate, if the jury find the possession of the said land has been held under the said title. The defendants excepted.

2. The plaintiff offered in evidence to the jury, a certificate of survey of a tract of land called The Enlargement, (before mentioned,) described as lying on the north side of Patapsco River, and on a run called Davis's Run, beginning, &c. He also produced and offered in evidence to the jury, the plots, and surveyor's explanations accompanying the same, made and returned in this cause.

Whereupon the defendants objected, that as the plaintiff had named in his declaration [**4]  the tract of land for which he has brought his ejectment, "Enlargement," he cannot give in evidence the said certificate of survey made for the tract of land called "The Enlargement."

Ridgely, for the defendants, contended, that the plaintiff's proof must correspond with his declaration; that he had not described the land in the declaration otherwise than by the name of "Enlargement;" there were no courses or quantity of acres to show its identity. In the certificate of survey the land is called "The Enlargement." That there was no lease confessed but that laid in the declaration. It is there said that the demise is for the land called Enlargement, not for The Enlargement. He can produce certificates of surveys for lands in the same county, some called Enlargement, and others The Enlargement.

Martin, (Attorney General,) contra. The same precision is not required here as in cases where nul tiel record may be pleaded. The plots in this case are a part of the plaintiff's declaration, and shew the courses of the tract of land for which the ejectment is brought, and therefore reduced the claim of the plaintiff to sufficient certainty. A recovery in this case can be pleaded in [**5]  bar, by reference to the plots, with an averment, as in any other case. There is a great difference between defence upon warrant and general defence; where defence is taken upon warrant the plots specify and designate the plaintiff's pretensions, and are a part of his declaration, and there is sufficient certainty to enable the sheriff to give possession.

Martin (Attorney-General,) for the appellant, (on the last bill of exceptions, being the only one before the court of appeals,) contended, that admitting the certificate of survey offered in evidence in the general court described the land by the name of The Enlargement, and the declaration described by the name of Enlargement, yet the subsequent averment on the plots, which are admitted to be the pleadings in the cause, and a part of the plaintiff's declaration, cured any defect as to the description in the declaration. That "Enlargement" and "The Enlargement," were the same in grammatical construction, and common language. That there was a great difference between defence taken generally, and that taken upon warrant. In the first the party might be confined to his declaration, but in the latter, where the lands are located [**6]  and designated upon the plots, the defendant is made acquainted with the name and description of the land claimed by the plaintiff in the action, and is prepared to defend the case, and is not at the trial taken by surprise. The plaintiff, by his pretensions on the plots, brings out his case more fully, as is usual in replications. It will not be denied that if an ejectment is brought for a tract of land by name, without further specification, it is good. In this case sufficient certainty appears to enable the sheriff to deliver possession.

Ridgely, contra, contended, that the court of appeals were confined to the bill of exceptions, by which it appeared that the certificate of survey offered in evidence by the plaintiff below, was not the original certificate, but a copy of a certificate not under the seal of the office, and therefore should not have been offered, and could not be received in evidence. That admitting it had been under seal, it did not support the plaintiff's declaration, but varied from it, being for a different tract of land. That the party's replication ought to support the declaration. The plots show that two tracts of land are located thereon, one by the [**7]  name of United Friendship, and the other by the name of The United Friendship, and why might there not be also two tracts of land one by the name of Enlargement, and the other by the name of The Enlargement? There must be certainty enough to enable the sheriff to deliver possession. Suppose in this case there had been a general verdict for the plaintiff, the judgment would have been that he recover his term in the tract of land mentioned in the declaration called Enlargement, and the writ of possession would have directed the sheriff to deliver possession of the land by that name. Suppose there were two tracts in the county one called Enlargement, and the other The Enlargement, could the sheriff under the writ deliver possession of the latter tract.  

JUDGES:
CHASE, Ch. J.  

OPINIONBY:
CHASE 

OPINION:

 [*289]  CHASE, Ch. J. However unwilling the court listen to objections which prevent a trial of the merits, they cannot but consider the variance in this case as fatal.
If you sue for land by name, you must name it literally. You might have sued for it by description, and then the name would have been unimportant; but as the suit is for land by name only, and you have not shewn a title for the [**8]  land named in the declaration, the plaintiff must fail.
The plots are part of the plaintiff's declaration, so far as to show location.
The court are of opinion that the certificate of survey of the tract of land called The Enlargement, cannot be given in evidence to the jury.
The plaintiff excepted. There was no application made to the court for leave to amend the declaration, and it seemed to be the opinion of the court that the declaration was not amendable, the act of 1785, ch. 80, not extending to actions of ejectment.
VERDICT and judgment for the defendant. The plaintiff appealed to the court of appeals.

 [*290]  THE COURT OF APPEALS, as to the objection that the copy of the certificate of survey, which was offered in evidence in the general court, not being under seal, observed that it was too late to make it in the court of appeals; that such objection should have been made at the trial, for copies unauthenticated were often offered in evidence by consent of the parties, and if the objection 

 [*291]  had been made in the court below it could have been easily obviated.
The Court of Appeals, upon the bill of exceptions, dissented from the opinion given [**9]  by the General Court, and reversed the judgment.
PROCEDENDO AWARDED.  

14 of 37 DOCUMENTS 

Levi Hollingsworth against Thomas Patten's Administratrix.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 125; 1793 Md. LEXIS 7 

May, 1793, Decided 

PRIOR HISTORY:
 [**1]   THIS was a scire facias issued from the county court of Baltimore, against Carolina Patten, administratrix of Thomas Patten, who was special bail of Charles Harris, upon a judgment obtained at August term, 1787, against the said Carolina, as administratrix of the said Thomas Patten. Plea, plene administravit, and general replication. The case was removed from the county court by a writ of certiorari issued on the part of the defendant.

The following case was stated for the opinion of the court, viz.

At March term, 1785, a judgment was obtained for the plaintiff on a scire facias, against Thomas Patten, as special bail of Charles Harris, for the sum of 158l. 18s. 6d. current money, and 446lb. tobacco, costs, in Baltimore county court; and in August term, 1787, the same was revived by scire facias against the defendant, as administratrix of the said Thomas Patten, and judgment when assets should come to her hands.

It is admitted, that afterwards assets belonging to the intestate came to the defendant's hands, to the amount of 154l. 15s. 6d. current money.

That the said Thomas Patten, in his lifetime, together with James Alcock and Mansel Alcock, on the 15th day of [**2]  June, 1785, executed a bond to the state of Maryland, of the penalty of 800l. current money, and bound themselves jointly and severally therein, conditioned that the said James Alcock should pay to the treasurer of the Western Shore for the time being, the sum of 400l. current money, on the 1st of January, 1790. The defendant hath paid in discharge of the bond due to the state, the above amount of the estate in her hands, to the treasurer aforesaid, after the judgment, when assets should come to her hands as aforesaid, was obtained, and before the bond due to the state was put in suit.

The point submitted to the court is, whether the state, or the judgment, is to be first preferred in the payment of the intestate's debts. If the state is to be preferred, then judgment of nonsuit to be entered; but if the judgment creditor is to be preferred before the state, then fiat to be entered with costs, to bind the above sum of 154l. 15s. 6d. current money, assets in the hands of the defendant, and costs.  

COUNSEL:
S. Johnson, for the plaintiff.

Hollingsworth, for the defendant.  

OPINION:

 [*127]  The Court. There can be no doubt that if a judgment is obtained against one in his lifetime,  [**3]  that his executor or administrator is obliged to satisfy such judgment in preference to a debt or specialty passed to the state after such judgment. a

a Vide State v. Rogers, May term, 1786.

15 of 37 DOCUMENTS 

John Lee Webster against Hammond and Stevenson, Executors of John Stevenson.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 131; 1793 Md. LEXIS 10 

May, 1793, Decided 

PRIOR HISTORY:
 [**1]   IN this case a suit was brought in the county court of Baltimore by the appellant, upon a single bill, dated the 2d of August, 1783, for 141l. 15s. current money, which bill was endorsed; that the testator, on the 4th October, 1784, paid 94l. Os. 6d. current money, and also a payment made 29th January, 1785, of 21l. 11s. current money. The writ issued on the 3d of February, 1791. The defendants pleaded payment by the testator; they also pleaded a bond executed by the testator with one Benjamin Howard, to Ann Tasker, dated the 25th of July, 1769, conditioned for the payment of 900l. sterling, to be made by the said Howard to the said Tasker, and which debt, with interest, remained due and unpaid, &c.; that a judgment had been obtained upon the said bond in the general court, by Dulany, executor of the said Tasker, against the defendants, as executors of the testator Stevenson, de bonis testatoris; that the sum of 2,035l. current money, debt, and 822lbs. tobacco, costs, are still due and owing upon the said judgment; that they have fully administered, &c. except goods and chattels to the value of 981l. 16s. 6d. current money, and that they had not, on the day of issuing the writ aforesaid,  [**2]  or since, had any goods, &c. except to the said value of, &c. which are liable to the payment and satisfaction of the said sum due upon the judgment, &c. with an averment that they had no notice of the debt of the plaintiff in this cause before the writ issued, &c. Replication, non-payment to first plea, and issue joined, and to the other plea, replication "that the sum of 1,070l. current money, hath been paid to the said Dulany, in part of the said judgment, and in satisfaction of the same, by the defendants, and that the said defendants, on the day of the impetration of the writ of the plaintiff, had divers goods and chattels, which were of the said J. S. at the time of his death, in their hands to be administered, over and above goods and chattels sufficient to satisfy the said sums of money then and now due and payable on the said writing obligatory and judgment aforesaid, wherewith the said defendants could have satisfied the said plaintiff his debt and damages aforesaid, to wit, at Baltimore county aforesaid: and this he prays may be inquired of by the country; and the said defendants, in like manner," &c.

Verdict upon the first issue for the plaintiff, and that the sum [**3]  of 54l. 17s. 3d. current money, is due upon the writing obligatory.

Verdict upon the other issue, "that the sum of 1,070l. current money, hath not been paid to the said Dulany in part, &c. and that the defendants had not goods and chattels, &c. over and above goods and chattels sufficient to satisfy the said sums of money then," &c. Judgment entered at March term, 1792, upon the said verdict for the plaintiff, of assets in futuro.

At the trial of the cause the plaintiff, by his counsel, offered in evidence to the jury, to maintain the issue last above joined on his part to be maintained, that the said defendants, as executors as aforesaid, had, in the course of their said administration, paid away debts of simple contract to the amount of the debt and damages in this behalf claimed, after the said executors had notice of the said bill obligatory in this cause declared upon, and the debt thereon to be due and owing to the plaintiff, by the said plaintiff showing the said bill to the said W. H. one of the said executors and defendants; whereupon the court directed the jury, that inasmuch as there was no suit brought on the said bill before the said payment so as aforesaid made [**4]  of the said simple contract debts, that there was not sufficient evidence of notice to charge the said executors by reason of the payments of the said simple contract debts, with the said debt and damages in this behalf claimed: to which opinion the plaintiff, by his counsel, excepted, &c.  

DISPOSITION:
Reversed. Procedendo awarded to the county court.  

COUNSEL:
Hollingsworth, for the appellant.

D. M'Mechen, for the appellees.  

JUDGES:
CHASE, Ch. J.  

OPINIONBY:
CHASE 

OPINION:

 [*133]  The plaintiff appealed to the general court, and CHASE, Ch. J. delivered the following opinion of the court:
Before I consider the question I would make a few general remarks.
Every executor or administrator is obliged by his duty, oath and law, to administer the goods and chattels of the testator or intestate, which come to his hands, according to law.
The law, before the act of 1785, c. 80. established the order in which debts due from the testator or intestate to private persons, should be paid.
1. Debts of record (and decrees in chancery, 2 Vern. 89.) of which the executor or administrator was obliged to take notice at his peril; for if he paid previously any other debts, he thereby became guilty [**5]  of a devastavit, 

 [*134]  and liable to pay such debts of record and decrees de bonis propriis. The person who first sueth execution must be first preferred. Before execution, the executor or administrator may prefer which he pleases. If two or more issued scire facias, the executor or administrator may confess assets to which of them he pleases, and plead generally plene administravit to the other scire facias. Swinb. 402.
2. Debts by specialty, or for rent, or on foreign bills of exchange, or inland bills or negotiable notes, &c. since 1766, of which the creditor ought to give timely notice to the executor or administrator. By timely notice, I understand information before he has given judgments in actions of debts of an inferior nature. An executor or administrator may prefer any of these creditors he pleases, in the same manner as creditors of record.
3. Debts on simple contract, of which the creditor ought to give notice. 1 Went. 133. 2 Went. 73. 110 Law of Test. 430. Godolph. 215--225. 1 Com. Dig. 245. 2 Bl. Com. 511. Swinb.
From this legal order of paying debts the executor or administrator [**6]  cannot depart. If he pays a debt on simple contract, after notice of a debt by specialty or decree, or on bills of exchange made in certain cases, equal to specialties by act of assembly, or for rent, and there should be a deficiency of assets, he is answerable to the amount of such improper and illegal payment out of his own proper goods. Bull. 141. 178. Fitzg. 76.
The law gives an executor or administrator certain privileges which he cannot be deprived of even in equity, unless by fraud. He may pay or retain in his hands to pay his own debts, in preference and prejudice of debts of equal degree.  10 Mod. 496. 11 Vin. Abr. 296.
If debts are of the same degree, (and the time of payment arrived,) the executor or administrator may pay which he pleases first, unless action is commenced, and in this case he may give a preference by confessing assets, 

 [*135]  in any subsequent suit, and he may plead such judgment to the action first commenced, and he may delay the first suit for this purpose. Swinb. 459.  1 Lev. 200. 10 Mod. 496. 1 P. Wms. 295. 5 Com. Dig. 203. 11 Vin. Abr. tit.  [**7]  Executors, 270. Swinb. 398.
If an action is brought against executor or administrator, and he has paid debts of a superior degree, or such debts are outstanding and unsatisfied, he must plead such debts in bar of the action, and cannot give it in evidence on plene administravit.  3 Lev. 114.
Commencement of suit (which may be immediately on death of testator, 2 Atk. 301.) will sometimes entitle to a priority of payment, (i. e. restrain the election of executor or administrator,) as in the case of debts of equal degree, and action is brought by one of the creditors, the executor or administrator cannot pay the debt on which suit is not brought, but he is bound to discharge the debt in suit. Law of Test. 427. Cro. Eliz. 41. Swinb. 458.
The court of Baltimore county was of opinion, that an executor is justified in paying simple contract debts after notice of a debt by specialty, unless such notice was by action commenced. Cases cited, 1 Mod. 174, 175. So argued Chappel, in Fitzg. 77. and Lev. 113.  3 Mod. 115. Comb. 35.  2 Show. 492. Vaughan, 89.  [**8]  Esp. 293. 2 Bl. Com. 512.  Dyer, 32, a. 2 Lev. 60. Special Pleader, 279. 2 Bac. Abr. 435.  1 Term. R. 690.
The opinion, therefore, of the court below is erroneous, because contrary to law, uniform practice, and greatly detrimental to administration of estates.
Notice may be in writing, or verbal. Went. 145. Law of Test. 428. Vaugh. 94. S. C. 11 Vin. Abr. tit. Executors, 296. pl. 8. Andr. 340. Fitzg. 76. 1 Barnad. B. R. 186. 2 Cro. 535. 1 Com. Dig. 245.  1 Term. R. 690.

 [*136]  The plea is always plene administravit before notice. Clk. Asst. 167. 2 Bro. 100.
If notice by suit, the plea must be plene administravit before writ issued.
Such decision would compel all specialty creditors to sue.
Let the judgment be reversed.
Procedendo awarded to the county court.  

16 of 37 DOCUMENTS 

M'MECHEN vs. M'LAUGHLIN'S Executor.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 166; 1798 Md. LEXIS 12 

May, 1798, Decided 

PRIOR HISTORY:
 [**1]   THIS suit was brought to October term 1796, and the issues being joined on the pleas of non assumpsit and limitations, the cause was put under notice of trial at the preceding term. The defendant at the present term would not consent to a continuance of the cause.  

COUNSEL:
Ridgely, for the plaintiff, filed an affidavit of the plaintiff, stating "that from the years 1781 to 1785, inclusive, he delivered to William M'Laughlin, deceased, the then sheriff and collector of Baltimore county, tobacco fees, to be collected for him the plaintiff as an attorney at law, amounting to 855,449 pounds of tobacco, which amount the plaintiff was informed the books of account of the said M'Laughlin acknowledge and admit. That the said M'Laughlin never made the plaintiff any return of his said fees, so to be collected, during his life. That since the death of the said M'Laughlin, statements have been furnished him, whereby it appears the quantity of 487,313 pounds of tobacco is admitted to have been received; the quantity of 158,680 pounds of tobacco is stated to be insolvent; the quantity of 27,080 pounds of tobacco is stated to have been denied, and the remaining quantity of 172,395 pounds hath not been [**2]  accounted for to the plaintiff in any manner. That the said tobacco, so unaccounted for, consisted of fees due to the plaintiff, as attorney, from sundry inhabitants of Baltimore county, all of whom the plaintiff believes had accounts with the said M'Laughlin, either as sheriff or collector, and were charged on his books. That the plaintiff hath instituted his suit in this court for the recovery of the said fees; and he is advised, and verily believes, that the books of accounts of the said M'Laughlin, if inspected, will ascertain what has been received, by adverting to the credits given to the debtors on the said books. That in order to obtain the benefit arising from an examination and inspection of the said books on his trial at law, he the plaintiff hath filed his bill for discovery in the court of chancery, praying the chancellor to order and decree that the said books may be produced at the trial at law, to be used as testimony before the jury; to which said bill the defendant hath appeared and answered; and the same, after argument had, is now before the chancellor, for his decree thereon, which hath not as yet taken place. The plaintiff also saith, that he cannot with safety [**3]  proceed to the trial of this cause, without the benefit of the testimony arising from the said books respecting the tobacco unaccounted for, and returned insolvent, and denied, and that he expects to have the benefit arising from the inspection of the said books at his trial at law, whenever the chancellor shall take order in the premises."

Ridgely, Mason and W. M'Mechen, for the plaintiff.

Martin, (Attorney-General) and Winchester, for defendant.  

OPINION:

 [*167]  THE COURT.--The affidavit does not allege sufficient matter to justify the continuance of the cause under the act of assembly.
PLAINTIFF NONSUITED.
Afterwards, at an adjournment of the court, the court discovered that the cause might continue without the consent of the defendant, the cause having been brought to, and the defendant having appeared at October term 1796. Whereupon the court directed the judgment of nonsuit to be struck out, and ordered the cause to be continued, with the costs of the term against the plaintiff.  

17 of 37 DOCUMENTS 

MAHONEY vs. ASHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 210; 1798 Md. LEXIS 16 

October, 1798, Decided 

PRIOR HISTORY:
 [**1]   THIS was a petition for freedom; the petitioner claiming to be descended from Ann Joice, a free woman. At October term, 1797, the following special verdict was found, to wit:

"We the jury, impanelled and sworn to try the issue in this case, do upon our oath find, that the petitioner, Charles Mahoney, is the son of Nelly, who was the daughter of Mr. Carroll's Sue, who was the daughter of Mr. Digges's Sue, who was the daughter of a black woman named Joice, formerly held and claimed by Colonel Henry Darnall. That the said Henry Darnall departed this life in the year 1711, and that the said Joice, from whom the petitioner is descended, was for many years held and claimed by the said Henry Darnall as his slave, and died in his possession, or in the possession of his representatives, at the Woodyard, in Prince George's county, but at what precise period she departed this life is to us unknown.

"We further find, that the issue of the said Joice, and their descendants, were and have been always held and claimed as slaves by the said Henry Darnall, and those claiming under him; and we do not find, that either the said Joice, in her lifetime, or any of her children, ever claimed the [**2]  right of freedom.

"We further find, that the said Joice came into this country with Charles Lord Baltimore, son of Cecilius Lord Baltimore, from England, between the year 1676, and the 15th of February 1679; and if upon the whole, &c."

The case was continued until this term, (October 1798.) 

DISPOSITION:
Case dismissed.  

COUNSEL:
Ridgely and Johnson, for the petitioner, were about to proceed in the argument, when the court expressed a wish that they would confine their observations to the question, whether the jury have found that Joice was in England, for without establishing that fact the petitioner could not succeed.

Johnson stated, that this would necessarily destroy their train of reflection. He would nevertheless endeavour to prove, that there was sufficient found in the special verdict to warrant a determination of the court that Joice was in England. He was at a loss to discover what stronger words could have been used in the special verdict to express that she was in England. It appeared to him to be self evident, and would not admit of argument. Unless she was there, it was impossible to prove that she came from thence.

This opinion he would endeavour to support by some [**3]  authorities. He cited Gilb. Law of Evid. 182, 183; and contended, that from this authority it appears, that the court are justified in deducing necessary conclusions from stated facts; and that they are not precluded from drawing inferences from facts.

In 5 Bac. Ab. 286, tit. Verdict (E.) (referring to Cro. James 63.) "The question submitted to the court by a special verdict was, whether the resignation of a donative to the donor, be good; but it was not found that the donor had accepted the resignation. It was holden that the acceptance of the resignation should be intended; and by the court the question submitted to our consideration is, whether the resignation of a donative to a donor be good; and we will never entertain a doubt as to any thing whereof the jury have not doubted."

In the same book, 286, the question was with regard to a seisin, and the jury after finding some facts, specially conclude with saying, that this amounts to a seisin. The court, without paying any regard to the opinion of the jury, will judge whether the facts found do amount to a seisin.

Key for the defendant, said that he would in the course of a few observations, satisfy the court, that [**4]  from the facts found by the jury, they could not infer that Joice was in England; every fact necessary to make out the petitioner's case must be found and not presumed. However strong the inference may be, if the jury do not find that she was in England, the court cannot, according to legal principles, deduce it. Notwithstanding every word in the special verdict may be true, yet she may never have set her foot in England. For if a ship had anchored in the River Thames, and this Joice had been taken thence, in common parlance she would have been said to have come from England.

In 5 Bac. Ab. 285, tit. Verdict, (D) A special verdict, in which the jury have omitted to find a necessary fact, is not good; every proper fact must be found expressly. 1 Wils. 54, 55--"Nothing is more settled than that the court can intend nothing, but what is found in the special verdict." Loft 573--The court must conclude from facts found. The jury find that Joice came from England. This is powerful evidence that she was there; but the jury are the only judges of that. Cites 5 Bac. Ab. 286. Fiz. 32, and the succeeding cases.

He next noticed the authorities adduced by the counsel for the petitioner.  [**5]  With respect to the question of seisin in 5 Bac. Ab. 286; the jury in that case found a conclusion of law, which the court would not regard. It was for them to determine whether the facts found amounted in law to a seisin.

In answer to the other case cited from the same authority, he said, although it was not found by the jury that the donor had accepted the resignation, yet they found the resignation, and there the sole question was, whether the resignation was good.

The case cited from Gilbert's Law of Evidence does not warrant the conclusion attempted to be deduced from it. The meaning is, when they have found a fact, any thing flowing therefrom in point of law may be determined by the court. He did not think the cases cited by the counsel for the petitioner were at all in his favour. He was of opinion that the doctrine advanced by the counsel was contradicted by every legal principle, and the determinations which he had produced.

Martin, (Attorney General,) on the same side. He observed, that the gentleman who had preceded him had gone so fully into the question, and had examined the authorities with so much ability, that little remained to be said by him.

The [**6]  special verdict finds facts and submits to the court the operation of the law upon those facts. It will be one great object with his adversaries to prove, that as soon as any person sets his foot on British ground he is free. Preliminary to the argument of this question, it is necessary to prove that Joice was in England. This fact is not found, and cannot be inferred by the court.

If the jury find, upon the plea of limitation, that the defendant acknowledged the debt within three years, the court must determine for the defendant, although the court, upon application, would have directed the jury that such acknowledgment was evidence of a promise; because the jury were to find the fact of a promise, and not having found it, the court could not presume it.

In this case no evidence was given to the court that Joice was in England; for finding that a person comes from a place excludes that place; so of the word to--Cites 3 Term Reports, 513, where on an indictment for not repairing a road leading from A. to B. It was held that B. was excluded.

Johnson, in reply. The gentlemen have not produced a single authority where the court did not draw necessary inferences from facts.  [**7]  The case cited from Term Reports was rather in favour of the petitioner. As to the case produced from 1 Wilson, had the gentleman read the whole of it, the court would have perceived its irrelevancy to the present case.

The attorney general has contended, that from and to are both exclusive. It has not been contended by the petitioner's counsel that Joice went through England, but that she came from there; and we contend that from one place to another implies that both are inclusive. Our act of assembly says, that negroes imported from Africa shall be slaves. This certainly means that they should come out of Africa.  

JUDGES:
GOLDSBOROUGH, Ch. J. CHASE, J., concurring. DUVALL, J., gave no opinion.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*213]  GOLDSBOROUGH, Ch. J. The sole question at present for the determination of the court is, have the jury found, 

 [*214]  that Joice, under whom the petitioner claims his title to freedom, was in England.
The jury must find the facts. It is the province of the court to declare the law arising upon those facts; and if sufficient facts be not found, the court must dismiss the case.
I think the fact of Joice being in England is not found. [Here he [**8]  stated the verdict.] Every word of this verdict may be true, yet Joice may never have been in England.  

CONCURBY:
CHASE 

CONCUR:

CHASE, J. I concur in opinion with the chief justice.
It is necessary for the administration of justice, that the boundaries limiting the jurisdiction of the court and the power of the jury, should be preserved inviolate; and I consider it to be the indispensable duty of a good judge not to encroach on the province of the jury, nor to suffer the power and jurisdiction of the court to be invaded or trenched on.
It is the province of the jury to find facts, and the right of the court to declare the law arising on the facts found by the jury.
Facts which relate to the question of law to be decided by the court must be expressly found in a special verdict.
Circumstances, deductions and inferences, are not facts, but may be sufficient evidence to induce the jury to find the facts.
If the court could deduce or infer a material and essential fact, from facts found, it would be in their power, by deduction and inference, under the pretext that it was a necessary one, to make the fact upon which they are to declare the law.
The essential fact in this case,  [**9]  upon which the claim to freedom is made, is the following: that Joice, the ancestor, was in England; and that fact must be expressly found by the jury, and cannot be made out by the court by intendment. When that fact is found the question will arise for the decision of the court, whether such fact entitles the petitioner to freedom.
Facts must be found, and not the evidence of facts.
Demand and refusal is evidence of a conversion--those facts found in a special verdict would not justify the court in inferring or finding a conversion; and it might be said those facts were such as to warrant the court in intending a conversion, because they amounted to a conversion.
The case of the heriot is a strong case to shew the court cannot intend any fact to support a verdict.
A heriot is due from the heir upon the death of the ancestor holding under the Lord of a manor--a grant 

 [*215]  was made to three for their lives, and upon the death of one of them the Lord claimed a heriot. The jury find, that the custom of the manor did not warrant a grant of an estate for three lives; which by the strongest necessary inference was finding a heriot was not due, for they found the grant [**10]  void. But the court decided it must be expressly found.
The case of length of possession, from which a jury may and ought to presume a deed, if found in a special verdict, would not warrant the court in intending the fact that there was a deed.
I am of opinion that the verdict is insufficient. But it is proper that a venire facias de novo should issue.
DUVALL, J. having been counsel for the petitioner gave no opinion.
On motion of the petitioner's counsel, the court directed the following entry to be made on the record: "That the fact that Joice was in England is not sufficiently and expressly found in the special verdict; and for as much as there was sufficient evidence disclosed at the trial by which the jury might have found the fact expressly, the court order a venire facias de novo." 

18 of 37 DOCUMENTS 

TRISLER vs. WILLIAMSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 219; 1798 Md. LEXIS 20 

October, 1798, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Frederick county court. It was an action of assumpsit for goods, wares and merchandize, sold &c. quantum valebat for goods, &c. and insimul computassit. The general issue and limitations pleaded.

BILLS OF EXCEPTIONS.

1. At the trial the plaintiff, (the now appellee,) produced a witness, (Francis J. Mitchell,) who swore, that in January, 1795, the defendant owed the plaintiff 204l. 10s. 4d. for goods, &c. sold and delivered. That the plaintiff sent the witness to receive payment of the defendant, and authorized him to receive from the defendant goods and book debts in discharge of his said claim, upon such terms as the witness should think proper. That the witness did, on the 15th of January 1795, receive from the defendant goods, and a verbal transfer of book debts, with a delivery of the book in which the same accounts were entered, to the amount of the said claim of 204l. 10s. 4d. on account of the plaintiff's said demand, and passed his receipt therefor. That before the execution of the said receipt, the defendant told the witness that the debts were all good, and would be paid upon being demanded. That the witness objected to receiving some of the said accounts [**2]  so transferred; but the defendant insisted he should take them all, or that he should have none. That the witness insisted, that by the receipt which he should pass to the defendant, the defendant should be made answerable for all the debts so assigned, which could not be recovered; but, that the defendant refused to deliver the goods, or transfer the said debts, unless the witness would give him an unconditional receipt in full. Whereupon the witness received the goods, and confiding in the representation of the defendant as to the existence of the debts to be transferred, and the solvency of the respective debtors charged, as represented by the defendant, received from him the book containing the accounts, with a verbal transfer and authority to collect the same, and gave the receipt aforesaid. But that the defendant verbally promised him he would make good any of the debts so transferred as aforesaid in case they should not be collected, as he had represented they might be. The witness also proved, that some time after the defendant went to Baltimore, and the plaintiff, together with Messrs. Patterson & M'Ilhiney, prevailed upon the defendant to make them a written assignment in [**3]  the book of accounts so transferred, by which assignment the defendant and the plaintiff, and Messrs. P. & M. agreed that the plaintiff and Messrs. P. & M. should use due diligence in the recovery of the said debts, and that the defendant should be answerable for such as could not be collected.

The plaintiff also proved, by another witness, that the said book of accounts was put into the hands of John Hoffman, in the fall of 1795, to collect, who within three days applied to several of the debtors therein named, who refused to pay the money, and denied that they owed the defendant any thing. That of this denial and refusal the said J. H. gave the defendant notice. That the defendant answered, the balances as stated were due, and if he owed the debtors who had refused to pay those balances, they must pay the balances, and call on him for their claims. That the defendant got the said book of accounts into his hands under pretence of examining the accounts, and whilst in his possession tore out the said last mentioned assignment, and substituted another in the room thereof in the said book.

Upon this the defendant prayed the court to direct the jury, that the whole of the evidence [**4]  which related to the assignment in Baltimore above stated, to the plaintiff, Patterson & M'Ilhiney, and to the tearing of the said assignment, was improper, incompetent, and inadmissible evidence in this cause.

Which direction the Court, (Potts, Ch. J.) refused to give; but gave to the jury the following direction: That if it appeared to them that the representation given by the defendant to Mr. Mitchell, who executed the receipt, was at the time thereof a true and fair representation of the several debts transferred, and debtors charged, that in that case the plaintiff's original cause of action was extinguished by the said receipt, and that he had failed in supporting his declaration, and they would give a verdict for the defendant. But the Court also directed the jury, that the plaintiff, by the receipt by his agent Mr. Mitchell, was not precluded from going into evidence to shew that the said receipt was obtained by fraud, misrepresentation and imposition, on the part of the defendant, and that if they were satisfied it was so obtained, the plaintiff's original cause of action was not thereby extinguished, or barred.

The Court further informed the jury, that to prove [**5]  the misrepresentation and imposition, as alleged by the plaintiff in obtaining the receipt aforesaid, any thing which passed between the defendant and Mr. Mitchell, at the execution thereof or afterwards, and any thing which passed between the defendant and the plaintiff at the execution of the written assignment, and the contents of the written assignment stated to have been torn out of the book aforesaid by the defendant, was admissible evidence for their consideration. The defendant excepted, &c.

2. The defendant, by his counsel, on the foregoing state of this case, prayed the court to give the following direction to the jury: "That the receipt in this cause produced and read to the jury, was conclusive evidence to bar the plaintiff from recovering in this present action." But the Court were of opinion, and so directed the jury, that if they were of opinion that the book debts so transferred as aforesaid, were all good, and might have been received by demanding them, that then the said receipt was conclusive to bar the plaintiff from recovering in this action, but that if they were of opinion that the said book debts were not all good, and that they could not be received by [**6]  demanding them from the parties from whom they were stated to be due, and that the said receipt was gained under the false representations of the defendant, that then the said receipt was no bar to the recovery by the plaintiff upon this action. The defendant excepted, &c.

The verdict and judgment being for the plaintiff, the defendant appealed to this court.  

DISPOSITION:
Affirmed.  

COUNSEL:
Mason, for appellant.

Shaaff, for appellee.  

OPINION:

 [*221]  THE GENERAL COURT affirmed the judgment of the County Court.  

19 of 37 DOCUMENTS 

Francois M. Dumoussay against Peter Delevit.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 151; 1793 Md. LEXIS 16 

October, 1793, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of replevin, removed from Baltimore county court, by a writ of pone.

There was a plea in abatement to the declaration, that the court had no jurisdiction of the cause, the plaintiff and defendant both being aliens, &c. See the plea in 2 Harris's Entries, 269. to which there was a general demurrer.  

DISPOSITION:
Judgment for the defendant.  

COUNSEL:
Martin (Attorney-General) and Smith, for the plaintiff.

Hollingsworth, for the defendant.  

OPINION:

 [*151]  The general court gave judgment upon the demurrer for the defendant.  

20 of 37 DOCUMENTS 

Joseph Williams against John Donaldson.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 127; 1793 Md. LEXIS 8 

May, 1793, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from the county court of Baltimore, in a case of replevin brought by the appellee for cannon. The pleas were, non cepit, and property. It appears that at the trial of the cause, the plaintiff, Donaldson, offered Hercules Courtenay as a witness, which said Hercules Courtenay had been appointed trustee, by a decree of the court of chancery, to sell and dispose of the real estate of a certain William Neill, deceased, and in the prosecution of the said trust, sold a certain wharf to Nicholas Sluby, under whom the defendant, Williams, claims his interest in the said cannon, which were buried in the said wharf, and were excepted at the time of the sale of the said wharf. The defendant, by his counsel, prayed the opinion of the court, that the said Courtenay was not a competent witness to prove the said facts: but the court were of opinion, that the said witness was competent to prove the said facts. To this opinion the defendant excepted.  

DISPOSITION:
Affirmed.  

COUNSEL:
Hollingsworth, for the appellant.

Smith, for the appellee.  

OPINION:

 [*128]  The general court affirmed the judgment of the county court.  

21 of 37 DOCUMENTS 

Samuel Paxon's Lessee against John Paul.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 399; 1795 Md. LEXIS 12 

October, 1795, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment for two tracts of land lying in Baltimore county, called Wignall's Rest and Wie Bit, brought by the plaintiff, as trustee of John Beale Howard.

The following case was stated for the opinion of the court, viz.

It is admitted that this suit was commenced in consequence of a mortgage deed which was executed by John H. Dorsey to John Beale Howard, to secure the payment of money. That the said John H. Dorsey, at the time he made the mortgage deed had a good title in fee-simple to the land, and that the lessor of the plaintiff has no title but under the mortgage deed.

It is also admitted that John Paul, the defendant, is now in possession of the land under regular conveyances from the said J. H. Dorsey, subsequent to the said mortgage, and that the said Dorsey, after the mortgage, sold all his interest therein, and, by deed duly executed, conveyed the same to Thomas Gassaway Howard, who conveyed the same to James Porter.

It is also admitted that James Porter paid to John B. Howard the whole of the principal and interest due on the said mortgage, in continental bills of credit, and that the same was received by the said John B. Howard, in discharge [**2]  of the said mortgage, and that the original mortgage deed and bond by which the said money was secured to be paid, were delivered up to the said James Porter, with receipts in full thereon; but that no release hath been executed of the mortgaged lands to the said Porter, or any person claiming under him, or under whom he claims.  

DISPOSITION:
Judgment for the defendant.  

COUNSEL:
Hollingsworth, for the plaintiff.

Johnson, for the defendant.  

OPINION:

 [*400]  The Court gave judgment, on the case stated, for the defendant.  

22 of 37 DOCUMENTS 

Stephen G. Gill's Lessee against Giles Cole.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 576; 1797 Md. LEXIS 3 

May, 1797, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for two tracts of land called The Land of Strife, and Cole's Struggle, both lying in Baltimore county. The defendant took defence upon plats, and judgment was entered against the casual ejector for all lands undefended, and the verdict was for the plaintiff, for the lands for which defence was taken, and judgment thereupon.

By the bill of exception taken in the cause it appears, the defendant at the trial offered from the plot produced, being a plot returned in this cause at May term, 1796, to show the direction which a line would have if run according to the proof in the cause given at the two points, red D. and red E. according to the green line S. to 60. But it appearing to the court that after the said location had been made in the said plot, by the surveyor for the plaintiff, and after the May term, 1796, the plaintiff's counsel had, upon leave given to add to and amend the plots returned in the cause at May term, 1796, some time on or about the 27th of August, 1796, explained to the surveyor by his instructions, that he had misunderstood his former instructions, and had made the said location contrary to his intentions, and had directed the surveyor to erase the [**2]  said location, and to make a new location according to directions then given; and it appearing further that the said surveyor had accordingly amended the plots, which had come to his possession according to the last instructions given by the plaintiff's counsel, and had returned such amended plots in this cause; but that the plot produced had not been amended, either because the surveyor could not obtain it for the purpose, or from his being directed by the opposite counsel not to amend it.  

DISPOSITION:
Affirmed.  

COUNSEL:
Martin (Attorney-General) and Key, for the plaintiff.

Mason, for the defendant.  

JUDGES:
DUVALL, J.  

OPINIONBY:
DUVALL 

OPINION:

 [*577]  The Court (DUVALL, J.) was of opinion it could not be considered as a plot filed in this cause, and that the defendant was not at liberty to show the said plot to the jury for the purpose aforesaid.

 [*578]  To this opinion the defendant excepted, and appealed to the court of appeals, in which court the judgment was affirmed at June term, 1800.  

23 of 37 DOCUMENTS 

William and John Partridge's Lessee against Colegate and Garretson.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 339; 1793 Md. LEXIS 34 

October, 1793, Decided 

PRIOR HISTORY:
 [**1]   THIS was an ejectment upon separate demises for a tract of land called "Thomas's Adventure," lying in Baltimore county.

The defendants took defence upon warrant, and plots were made.

At the trial of the issue at the last term, the plaintiff offered in evidence the certificate of Thomas's Adventure, surveyed for John Thomas, on the 2d of September, 1688; also a grant to the said Thomas for the said land, dated the 6th of May, 1689.

He then proved the seisin of Buckler Partridge, (grandfather of the lessors of the plaintiff,) and that he died seised; that his son Daubney B. Partridge entered, and, in January, 1768, died seised also. He also produced the will of the said Daubney B. Partridge, dated the 2d of April, 1767, whereby he devised the said land to the lessors of the plaintiff, in fee. He also proved the entry and possession of the lessors of the plaintiff.

The defendants took defence for, and offered in evidence, certificates and grants of the following lands, viz. "Ruxton's Range," surveyed on the 12th of May, 1679. "Howell's Point," surveyed on the 20th of February, 1661, for Howell Powell; "Howell's Point," surveyed on the 29th of July, 1661, for Thomas [**2]  Powell, and for such part of "Colegate's Point" as does not lie within "Thomas's Adventure," as located by them on the plots. "Colegate's Point" was surveyed on the 26th of February, 1774, in virtue of an escheat warrant, issued on the last-mentioned tract called "Howell's Point," and was patented on the 4th of May, 1776.  

DISPOSITION:
Affirmed.  

COUNSEL:
Hollingsworth, for the plaintiff, contended that if there was a failure of the issue of Thomas Howell, before the grant of "Thomas's Adventure," then the escheat grant on "Howell's Point," for the land called "Colegate's Point," cannot operate; but if the failure of such issue was after the grant of "Thomas's Adventure," then the grant of "Colegate's Point" will pass the proprietary's reversion.

He cited Co. Litt. 268. b. The acceptance of rent will prevent escheat.

Co. Litt. 352. a. b. Acceptance of rent after title accrued, shall have relation to acts done before.

Pinkney, on the same side, observed, that "Howell's Point" was part of the defence, and was granted prior to "Thomas's Adventure," and that if "Thomas's Adventure" was granted after "Howell's Point" escheated, then the grant will operate to pass all that part of "Howell's [**3]  Point" which it included.

Cooke, for the appellee. The ejectment is brought by the plaintiff below on two separate demises from William and John Partridge, as tenants in common of the land called Thomas's Adventure; and the single question is, whether the said William and John are tenants in common of that tract under the will by which they claim?

It appears to me that the greatest ingenuity is necessary to raise an argument in support of the appellants; and that a plainer case never existed than the present in favour of the appellee.

By the first clause of the will, the testator gives a plain declaration of his intention to give all his land among his three sons, without designating any part for either. Had the will stopped there, they would have been joint tenants of the whole; but he then goes on and declares his two sons, William and John, shall have Thomas's Adventure, part of Good Luck, Thomas's Range, and the Glebe Land, to be equally divided between them in quantity, without regard to quality; and that Daubney should have the lands of division on Deer Creek.

If the will had stopped here, William and John would have been tenants in common of those four tracts [**4]  devised to them, and Daubney would have had a separate estate in the lands on Deer Creek.

The testator further goes on to declare that in the division to be made between William and John, William should have in his part the Glebe Land, and John should have Good Luck. As to these two tracts, the testator has separated them and given a separate estate in the Glebe Land to William, and a separate estate in Good Luck to John; but as each is to have an equal quantity of acres, the other two tracts are to be so divided as to make the quantity of the whole which each has equal, and until that division is made, William and John are tenants in common of Thomas's Adventure and Thomas's Range, because it is not known what part of either will belong to William, or what part of either to John.

Suppose, for instance, the Glebe Land contained 100 acres, the plantation called Good Luck, 300 acres, Thomas's Adventure, 200 acres, and Thomas's Range, 400 acres, in all 1,000 acres; as Good Luck must be in John's part, and contains 200 acres more than the Glebe, which must be in William's part, out of the remaining 600 acres John can only have 200, that is, 100 for Thomas's Adventure, and 100 [**5]  acres of Thomas's Range, which would make the whole of his quantity 500 acres, and the residue of 400 acres would be the property of William; or it might happen that in the partition of Thomas's Adventure and Thomas's Range, the whole of Thomas's Adventure would fall into the part of John, and the whole of Thomas's Range into the part of William; but surely as to these two tracts, as they were in common, and it could not be known whether the whole or what part of either will belong to William or John before the partition, till that event takes place they must be tenants in common of those two tracts. They were not separate tenants of either, nor joint tenants, because there could be no survivor. The 1,000 acres was to be equally divided in quantity between them; then they must be tenants in common.

I need not cite cases to show that if there are two tenants in common of four tracts of land, that upon partition, it is not necessary that each must have a part of each tract. Certainly if the whole together is equally divided, it is good, though one entire tract should fall into the lot of one, and another entire tract into the lot of the other; yet till the partition is made, they [**6]  are tenants in common of the whole. But if the law was otherwise, it would not operate against the appellee; for as to Thomas's Adventure, it is not separated by the will, nor by the act of the parties, and until it is, they can hold no other estate in it but as tenants in common.

Pinkney, for the appellees. A tenancy in common depends, not upon unity of interest, title or time, but upon unity of possession. Thomas's Adventure (which is the only tract for which the ejectment was brought) is not severed by the will, or by any act of the parties. There is no particular part of it of which William or John Partridge can be said to be sole seised, nor is either of them sole seised of the whole. Until a partition takes place, the distinct right of possession of the two tenants, as to Thomas's Adventure and Thomas's Range, (which contain unequal quantities, as well as Good Luck and the Glebe,) is not ascertained, and of consequence there is, and must be, a community of possession; neither knew his part, and of course neither can be separately seised; and in virtue of their unity of possession they are tenants in common.

Martin, (Attorney-General,) for the appellant. The devise to [**7]  William and John Partridge cannot be determined to be a tenancy in common, consistent with the plainest and most familiar principles of law.

The testator being seised of a body of land composed of tracts adjacent to each other, to wit, Thomas's Adventure, part of Good Luck, Thomas's Range, and the Glebe Land, devises the whole to his sons William and John, to be divided equally in quantity without regard to quality, and declares his meaning to be, that William should have in his part all the Glebe Land, and John should have in his part, the plantation, to wit, the part of Good Luck.

The true construction of which is, that the whole body of land should be divided in two equal parts according to quantity, by a line or lines drawn there through, so as to leave the plantation on the one part, and the Glebe Lands on the other; and that John was to hold in severalty the half containing the plantation, and William the half containing the Glebe Lands. The testator doth not say that he gives the Glebe Lands to William and the plantation to John, and then, that he gives Thomas's Range and Thomas's Adventure to them, to be equally divided. The words equally divided, are expressly applied [**8]  as much to the Glebe Lands and the plantation, as to the other tracts; they are applied to all the tracts as forming an aggregate whole.

Nor was it his intention that Thomas's Range and Thomas's Adventure, should be equally divided between William and John. He only intended so much of them should be annexed to the Glebe Lands as would make the number of acres to William, equal to the number of acres held by John, contained in Good Luck, and the residuary part of Thomas's Adventure and Thomas's Range. He also intended the part of Thomas's Range and Thomas's Adventure, which should be held by William, should be the part adjacent and most convenient to the Glebe Lands, and the part of those tracts which should be held by John, that which was adjacent to, and most convenient to the plantation, or the part of Good Luck.

The direction that the lands were to be equally divided in quantity without regard to quality, also prove the testator had no design to create a tenancy in common.

Tenants in common are to have lands divided, having regard both to quantity and quality.

Each tenant in common has an equal interest in the lands, wherever situate, and an equal chance to have [**9]  the lands in any part allotted to them on a partition.

If one tenant in common enters upon any part of the land and makes a profit, the other tenant can compel him to account for a share of those profits.

But in the present case, the lands are not to be divided with regard to quality.

John had no interest in the Glebe Lands, nor in a certain part of Thomas's Range and Thomas's Adventure, adjacent and convenient to the Glebe Lands; nor had William any interest in the plantation, and the other parts of Thomas's Adventure and Thomas's Range; nor could John have had the Glebe Lands and the portion of Thomas's Adventure and Thomas's Range, next adjacent, allotted to him on a partition; nor could William have the other part allotted to him.

William had, from the first, a right to enter into the Glebe Lands, and a portion of the other lands adjoining, and take the profits without accounting to John; so had John a right to enter into the other parts and take the profits without accounting to William; each would have been trespassers had they entered upon the other parts respectively.

A man possessed of lands lying together, devises them to be equally divided between [**10]  his two sons in quantity, without regard to quality, the eastern half to his son A. and the western to his son B., they are not tenants in common, but tenants in severalty, each of their half.

The difficulty of ascertaining a division line in this or any other case, has no effect upon the question.

The devise in the present case, directs the land to be laid off in two equal halves, leaving the Glebe Lands in one half, and his plantation in the other; and gives John the half in which his plantation is, and the other half to William. They take their respective proportions in severalty, allotted by the testator, not to be allotted on a writ of partition.

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

Cooke, Hollingsworth and Pinkney, for the appellees.  

OPINION:

 [*340]  The Court determined, that a grant on a common warrant will pass lands which had escheated before, and that the proprietary may pass his interest in that way as well as by grant on an escheat warrant; and the court directed the jury, that if they were satisfied from the proof in this cause, that there was a failure of the heirs of Thomas Powell, antecedent to the grant of "Thomas's Adventure [**11]  ," that the grant of "Thomas's Adventure" will pass the lands originally granted to Thomas Powell, which is included within the bounds of "Thomas's Adventure." Verdict for the plaintiff.
The following point was saved for the court's opinion, to wit: It is agreed that Daubney Buckler Partridge, the father of the lessors of the plaintiff, duly executed his last will and testament, which is as follows, to wit: [Here follows the said will, the material devise whereof is as follows, to wit: Imprimis, I give and devise unto 

 [*341]  my three sons, William Partridge, Daubney Buckler Partridge and John Partridge, all my tracts or parcels of land that I have now in possession, to them, their heirs and assigns for ever: But my will and meaning is, that my aforesaid two sons, William Partridge and John Partridge, shall have all those tracts or parcels of land belonging to me, called Thomas's Adventure, part of Good Luck, Thomas's Range, and the Glebe Land, to be equally divided in quantity, without having any regard to the quality, between my aforesaid two sons, William Partridge and John Partridge, their heirs and assigns for ever;  [**12]  and my will and meaning is, that my aforesaid son, William Partridge, shall have in his part all the aforesaid Glebe Land, and my son, John Partridge, to have in his part all the aforesaid Glebe Land, and my son John Partridge, to have in his part of the aforesaid lands all the plantation whereon I now dwell; and my will and meaning is, that my above-named son Daubney Buckler Partridge, his heirs and assigns, shall have all that tract or parcel of land called Ballstone, lying and being in the county aforesaid, between the mouth of Back River, and the mouth of Middle River, containing by estimation 150 acres of land more or less; and also one other tract or parcel of land called Richardson's Neglect, lying and being in the county aforesaid, on the east side of the great falls of Gunpowder River, containing by estimation 36 acres of land more or less; and it is my will and meaning, that as my above-named two sons, William Partridge and John Partridge, their shares of the above-named lands that I have given them, their heirs and assigns, being more in quantity than the lands I have given my above-named son, Daubney Buckler Partridge [**13]  , his heirs or assigns, shall pay my aforesaid son, Daubney Buckler Partridge, his heirs or assigns, 15l. current money each," &c. &c. Will dated 2d of April, 1767.] It is also agreed, that William and John Partridge, the said lessors of the plaintiff, and William and 

 [*342]  John Partridge, in the said will mentioned, are the same persons; and that the land mentioned in the said will by the name of Thomas's Adventure, and the land for which this ejectment is brought, is the same land; and that the lessors of the plaintiff derive their title under the said will, to the lands for which the said ejectment is brought; and that the said Daubney Buckler Partridge did die seised of the lands called "Part of Good Luck," "Thomas's Range" and "The Glebe Land." And the verdict of the jury, if given for the plaintiff in this cause, is to be subject to the opinion of the court upon this case stated, whether the lessors of the plaintiff in this ejectment, are entitled to recover upon this title; and if the court should be of opinion that the lessors of the plaintiff have not such a title as is sufficient to support this ejectment, then judgment to be [**14]  given for the defendant.
The case was continued under a curia ad. vult. until this term, when the general court gave judgment upon the point saved, and verdict for the plaintiff.
The defendant appealed to the court of appeals, and the cause was argued at June term, 1796.

 [*347]  The court of appeals affirmed the judgment of the general court at June term, 1796.  

24 of 37 DOCUMENTS 

John Kilty against Rezin Hammond.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 149; 1793 Md. LEXIS 15 

October, 1793, Decided 

COUNSEL:
 [**1]  Key, for the plaintiff.

Pinkney, for the defendant.  

OPINION:

 [*149]  THIS was an action on the case for a reward, founded on the following proclamation and advertisement, published in one of the newspapers edited in the city of Baltimore, to wit:

"By his Excellency, John Eager Howard, Esq. Governor of Maryland.
"A PROCLAMATION.
"Whereas by the deposition of Rezin Hammond, Esq. 

 [*150]  of Anne Arundel county, it appears, &c. &c. And whereas it is obviously the duty of the executive to guard as much as may be against the commission of such enormities, and to bring such offenders against the laws and peace of society to justice, I have, therefore, thought proper, by and with the advice of the council, to issue this my proclamation, authorizing and enjoining all sheriffs and other officers of the peace, to apprehend and convey before some one of the judges or justices within this state, the said Elijah Gaither, in order that he may be dealt with according to law; and I do hereby exhort and require the good people of this state to be aiding and assisting the said officers in the execution of their duty.
"Given at Annapolis, under the seal of [**2]  the state of Maryland, this seventh day of June, in the year of our Lord one thousand seven hundred and ninety-one.
"J. E. HOWARD.
"By his excellency's command,
"T. JOHNSON, jun. Secretary.
"God save the State.
"I hereby offer a reward of four hundred dollars for apprehending the above-mentioned Elijah Gaither, agreeably to the foregoing proclamation, and will pay the same upon his being brought before any one of the judges of the general court, or either of the associate justices of Anne Arundel county, to be dealt with according to law.
"REZIN HAMMOND.
"June 7, 1791."
At the trial of this cause, the above proclamation and advertisement were produced by the plaintiff, and offered in evidence, to support his title to the reward therein mentioned, and the advertisement was admitted to be the advertisement of the defendant; and the defendant, by his counsel, prayed the court to direct the jury, that the plaintiff could not recover in this suit, unless he proved 

 [*151]  himself to be a peace officer of this state, or of Anne Arundel county, where the said Gaither was arrested, or that the plaintiff had a warrant or process to arrest the said [**3]  Gaither, or that the plaintiff was required by a peace officer, or other person having a warrant or process, to arrest the said Gaither, to aid and assist in the arrest of the said Gaither. The court directed the jury accordingly.  

25 of 37 DOCUMENTS 

HOWARD vs. CROMWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 325; 1799 Md. LEXIS 9 

May, 1799, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for three tracts of land, the one called Howard's Inheritance Resurveyed, another called Water Oak Ridge, and the third called Roseland, all lying in Baltimore county.

The plaintiff, to make title to Water Oak Ridge, offered in evidence a common warrant issued to Cornelius Howard, father of the lessor of the plaintiff, dated the 4th of August 1752; a certificate of survey in virtue of the said warrant made the 30th of January 1753, and a patent on the said certificate, dated the 6th of March 1753.

The defendant took defence for a tract of land called Wester Ogle; and to make out his title, offered evidence of a special warrant of resurvey, dated the 28th of November 1751, in the name of John Medcalf, which was renewed the 13th of May 1752; and also renewed the 18th of November 1752, for six months longer. A certificate of survey made the 20th of January 1753, caveated by Cornelius Howard on the 21st of April 1753, caveat overruled on the 17th of August 1753, and patent ordered to issue. The certificate was assigned by Medcalf to William Lyon, on the 6th of August 1753, and a patent issued to Lyon on the 8th of February 1754. The composition money paid on the 28th [**2]  of September 1753. The warrant of resurvey had issued on a tract called Rich Level or Medcalf's Addition. The patent was for Wester Ogle.

The plaintiff also offered evidence, that the patent last mentioned comprehended within its lines vacant land not contiguous to Rich Level, or Medcalf's Addition, but which, though vacant, was separated from them by tracts of land granted before the issuing of the warrant of resurvey aforesaid, and that the said certificate or patent of Wester Ogle crossed the said elder surveys, to include the vacancy included in the patent of Water Oak Ridge, the land granted to Howard.

The defendant prayed the direction of the court to the jury, that the title of the defendant to Wester Ogle aforesaid, and all land vacant at the time of the execution of the warrant aforesaid, and included within the lines and boundaries thereof, commenced from the 20th of January 1753, so as to have a priority of title to the same vacancy, which was included in Water Oak Ridge.  

COUNSEL:
Winchester, for the defendant. When a patent issues it gives title from the date of the certificate. This is admitted to be the general rule of law. The question then is, whether the particular [**3]  circumstances of this case will prevent the relation of the patent back to the date of the certificate. The rule of law does not depend on the principles of relation, but is a general rule which operates on all conveyances, and is not confined to patents. The location of the warrant is the substantial part of the agreement between the state and the individual; it designates the land sold and purchased; gives priority, and is superior in equity. The patent issues on the certificate returned, as a matter of course, and its date is not material. A special warrant is in its nature a location of the land; but a common warrant is not. The certificate is the important part of the contract. The rules of the land office have fluctuated and varied; they have at times been dispensed with. The plaintiff's certificate laid only two months in the office before a grant issued. The reason of the rule of relation was not to protect equitable titles; the rule was made to prevent mesne conveyances, litigation, and the running into elder surveys, and taking up land not patented. All contiguous vacancy must be affected by a special warrant of resurvey, which operates as a location of the land taken up,  [**4]  especially if notice to the adverse party can be presumed. The plaintiff's counsel contend, that we shall not cross an elder survey to take up vacancy. The rule is not to run within the lines of an elder survey. The infringement of this rule affects Water Oak Ridge as much as Wester Ogle. Relation is founded on fiction, and where a third person is interested, evidence may be produced to establish a fact which will make it necessary to disregard the fiction. For instance, though the signing of the judgment relates back to the first day of the term, evidence may be given of the particular day on which the judgment was rendered. So in the case of a Latitat, the real day of issuing it may be averred. The rule of relation, as it respects conveyances, is founded in equity. The court of equity looks to the substance. An equitable title to land is not to be burthened with future liens. The time of paying the composition money cannot be material; the first payment will not prevent the relation. A contract on credit is not less equitable than a contract for cash. In cases of presentation and induction, the title commences from the presentation, and not the induction--Sir W. Jones, 425, 428.  [**5]  Where there are divers concurring acts, the last act shall relate to the first to complete a conveyance. As in the case of a feoffment of one acre, with an election in the feoffee to fix on the particular acre, when the acre is designated there will be relation back to the time of the feoffment. So at common law, a feoffment gave no title without a livery of seisin; but when livery was made, it had relation back to the date of the feoffment. Livery is a ceremony to complete the conveyance. There is no rule better founded than this, that when all the forms and ceremonies are completed, they are to be taken together as one act, and must relate to the first substantial part of the contract--5 Burr. 2786-7. The king's grant binds from the date, because it commences ab initio, without any further ceremony to complete it--Hob. 220, 222. In this case the patent gives title to the land from the date of the certificate of survey. Who was to be protected by the rule which prohibits the running within the lines of an elder survey? Not the government, nor a third person; it was to protect the right of the person owning the warrant; to prevent mesne surveys which would be the cause of endless disputes [**6]  and litigation. Thirty years have elapsed since the investigation of the equity of this case. The argument ab inconvenienti will have great influence. If the principle of relation is not supported, great inconvenience will result from inquiries of this nature. A person having a warrant of resurvey may take up vacancies contiguous to any part of his land.

Key, for the plaintiff. Relation is a fiction of law invented for the furtherance of justice. A writ issued in vacation is tested the first day of the last term; but it may be contradicted, and the true time of its issuing be shewn--Cowp. 177. 2 Burr. 968. As to other instances of relation he cited 2 Burr. 1134. 3 Burr. 1243. 4 Burr. 1961. 5 Burr. 2783. 1 Salk. 185. The plaintiff's title was complete before the assignment of the certificate was made to Lyon. A special warrant is an inception of the contract. It was in the year 1768 when the rule was introduced that certificates must be six months in the office before a grant can issue thereon. A common warrant located has the preference to a special warrant issued afterwards. The defendant's certificate was not returned to the land office when the plaintiff's patent issued. If [**7]  two equities are equal, the prior equity shall prevail; purchasers without notice, for a valuable consideration, and having the prior legal title, shall have the preference. Where there has been a lease for five years, and afterwards a release, the release shall not have relation to the date of the lease to defeat any mesne conveyance. Relation comes in aid of equity. Admits the doctrine of relation, where several acts are necessary to complete a conveyance, as in the case of feoffment and livery of seisin. Also admits relation between the proprietary and the grantee, but not as to a third person. Relation is complete between the parties, but not between third persons. In the cases cited, a legal estate was first created, and the relation is not to an incipient contract. Induction relates to the presentation to vest a right to tithes, and to invest with a legitimate power.

Martin, (Attorney General,) on the same side. The general principle as to relation is admitted, but it does not apply to this case. It was adopted to prevent the necessity of applying to the court of chancery, where the eldest certificate had been returned. The plaintiff has the oldest legal title with superior [**8]  equity. Lyon never had any equity, for Howard had paid for the land, and obtained a patent, before Lyon had paid, or before the assignment of the certificate was made to him. Lyon's contract with the state, under the warrant of resurvey and certificate, was to correct error, throw out land running foul of elder surveys, and to take up vacancy which lay contiguous; and if there were intermediate granted lands which intercepted him, he could not cross over such land to take up vacancy, for he had not contracted for such vacant land. In this case there was intervening land. The warrant to Medcalf was a special warrant to take up contiguous vacancy, and could be located only on contiguous vacancy. A special warrant of resurvey is not an authority to take up any but contiguous vacancy. A warrant is a constructive notice to all persons, and whilst it is in force every person must be presumed to have notice. If in this case the defendant is allowed to run through an eldertract to take up the land, for which we have a prior title, then a special warrant of resurvey would have the effect to operate on all the vacant land in the state. A special warrant cannot have a priority over a common warrant,  [**9]  as it respects any vacancy not contiguous to the land on which the resurvey is made. There was no contract between the proprietary and Lyon as to vacancy not contiguous, before the composition money was paid. And if the certificate to Medcalf was returned before the grant to Howard issued, it could not affect the plaintiff's case, as the composition money was not paid. Howard obtained his grant before Lyon paid the composition money. Nothing but an equitable interest passes till the patent issues. The cases cited do not apply to the case of an equitable title converted into a legal estate. As to the case of the enrolment of a deed of bargain and sale having relation to the date of the deed, the bargain and sale is the legal conveyance, and the enrolment is a mere ceremony; so it is with livery of seisin in case of feoffment. But the patent itself is the legal conveyance. If the warrant and certificate are legal titles, and the issuing of the grant is not a ceremony, then the cases cited by the defendant's counsel do not apply. When a legal interest has been once conveyed, the party making the conveyance cannot convey to another a legal estate in the same property. The proprietary having [**10]  once granted, he had nothing left to grant to another.

The principle of relation can only rest on equitable grounds, and is established for the purposes of justice. The caveat having been decided the one way or the other, can have no influence on the case.  

JUDGES:
CHASE, Ch. J. delivered the opinion of the court.  

OPINIONBY:
CHASE 

OPINION:

 [*329]  CHASE, Ch. J. delivered the opinion of the court:
The principle, or rule of relation of the grant to the certificate, was established on the ground, that the person who had the first certificate had an equitable title to the land contained therein, and was allowed for the sake of justice, and to prevent the party from going into chancery 

 [*330]  to vacate the prior grant, and to have the legal estate united with the equitable interest.
The court are of opinion, that Medcalf, by his special warrant of resurvey, acquired an equitable interest in the contiguous vacancy to the lands to be resurveyed, and that as to such vacancy, the patent to William Lyon, to whom Medcalf's certificate had been assigned, would relate to the date of the certificate returned on the warrant; but that in virtue of his special warrant he could not cross [**11]  an elder survey, and include vacant land patented to Cornelius Howard.
The defendant's counsel prepared a bill of exceptions; and the court, on the defendant's prayer, refused to give the direction prayed, but gave the following opinion and direction to the jury:
"The court are of opinion, that John Medcalf, by his special warrant of resurvey on the lands therein mentioned, acquired an equitable interest in the vacant lands contiguous thereto, from the date of the said warrant, and that the patent which issued to William Lyon, to whom the said Medcalf had assigned his certificate on the said warrant, would relate to the date of the said certificate, as to such adjoining or contiguous vacancy, and not to give title to any vacant land separated by an elder survey, and included in the patent of Water Oak Ridge."
On motion of the defendant's counsel, leave was given to withdraw a juror for the purpose of amending the plots.
A JUROR WITHDRAWN, &c.  

26 of 37 DOCUMENTS 

Mary Nicholson, Administratrix of Benjamin Nicholson, against The State.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 109; 1792 Md. LEXIS 10 

October, 1792, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of assumpsit, for 291l. 6s. 8d. current money, for labour, services and diligence, as a judge of the court of admiralty, by the said Benjamin in his lifetime.

The following case was stated for the court's opinion, viz.

That by virtue of the constitution of this state, the plaintiff's intestate was, on the     day of    , 1777, commissioned judge of the court of admiralty during good behavior; the form of which commission was prescribed by an act of the general assembly made at February session, 1777, c. 5. That the plaintiff's intestate continued to hold said commission until about the last of December, 1790, when he resigned the same. That the salary annexed to said appointment was from time to time regulated by the general assembly, until the year 1785, when it was made perpetual, at 250l. per annum. That the plaintiff's intestate continued to receive his salary up to November, 1789; but that his excellency the governor, and the honourable the council since that time hath refused to pay him any thing, and that he hath not been paid any thing, they alleging that the court of admiralty of this state was abolished by the adoption of the federal government.  [**2]  

COUNSEL:
Cooke, for the plaintiff.

Martin (Attorney-General) and Key, for the state.  

OPINION:

 [*109]  The Court gave judgment on the case stated for the plaintiff.

 [*110]  The following letter will show the grounds on which the plaintiff's intestate claimed his salary as judge of the admiralty court:

His Excellency John E. Howard, Governor of Maryland. Baltimore, October 28, 1790.
SIR--In your letter protesting the draft for my salary as judge of the court of admiralty for this state, you say "you are not informed of any cases which are exempted from the jurisdiction of the district court of the United States, and that the abolition of the state admiralty court is indicated by the establishment of the former."
In answer to which I have taken the liberty of laying before your excellency and council my opinion upon the extent and limitation of both courts, and flatter myself that upon reflection you will be satisfied that the state admiralty court has exclusive jurisdiction in a variety of cases. For notwithstanding the clause in the federal constitution, art. 3. sect. 2. is general, viz. all cases of admiralty and maritime jurisdiction, yet it must be taken [**3]  in a qualified sense, and confined to cases incident to the nature of that government, so as to give it complete federal sovereignty, without impairing the state sovereignty more than is necessary to compose the former. Perhaps I shall be better understood by pointing out the cases which I apprehend of right belong to each jurisdiction. To the federal government is ceded the power of making war and peace; of course the district court has jurisdiction in all cases of prize or no prize. It likewise has the power of regulating trade, under some restrictions, i. e. such regulations must be general, and pervade the whole union; the district court, therefore, has jurisdiction in all cases of seizure made by virtue of such regulations; and, as pertaining to an independent sovereignty, the district court has jurisdiction in all cases depending on the laws of nations, viz. seamen's wages, being foreigners, against a state bottom; or citizens against a foreign 

 [*111]  bottom; or in cases between part owners of a ship, being either in part or the whole foreigners. But, sir, to the state admiralty belongs, if it has any sovereignty at all, the exclusive jurisdiction, in all cases, between [**4]  citizens of the state, viz. seamen, citizens libelling a state bottom; also, in cases between part owners, being citizens. Again, it has the exclusive jurisdiction in all cases of seizure made by virtue of the laws and regulations of the state. That the state has power to make such laws and regulations by which seizures may take place, vide federal constitution, art. 1. sect. 10. and that congress have not a power to make any partial regulation to operate upon an individual state, vide art. 1. sect. 8.
Thus, sir, I have endeavoured to draw the line between the jurisdictions of the two courts, and wish I may have given your honours satisfaction on the subject. As to myself, I am fully convinced, and shall never relinquish unnecessarily, any part of our state government. I have the honour to be, &c.
B. Nicholson.  

27 of 37 DOCUMENTS 

Michael Gore's Lessee against Samuel Worthington.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 96; 1792 Md. LEXIS 1 

May, 1792, Decided 

PRIOR HISTORY:
 [**1]   THIS was an inquiry of damages issued on a judgment in ejectment, obtained at May term, 1787. In July, 1791, the writ of inquiry of damages issued, and an inquisition found, awarding to the plaintiff 87l. current money, damages.

At the trial before the sheriff of Baltimore county, and the jury impanelled to try the same, the plaintiff, by his counsel, offered to give in evidence to the jury, the actual damages sustained by Michael Gore, by being kept out of the use, occupation and profits of the land in the declaration and judgment from the 1st of January, 1783, until the 1st of January, 1787. To which evidence so offered to the jury, the defendant, by his counsel, objected, but the sheriff permitted the evidence to go to the jury. The defendant excepted.

The defendant, at the return day, (October term, 1791,) moved to set aside the inquisition; the cause was continued till this term, when the defendant's counsel contended that mesne profits were recoverable by an action of trespass only; that the damages recovered in ejectment were merely nominal, for the ouster, the injury complained of was merely nominal, and cited Runn. Eject. 4. 164. 2 Bac. Abr. 181. That the statute [**2]  of 16 and 17 Car. II. c. 8. never extended to this state. That the statute only extends to cases of writs of inquiry after judgments affirmed on writs of error.

The plaintiff's counsel contended that anciently, ejectments were only brought for profits, and not for the possession. That the statute was made to give the writ of inquiry after error that would not lie before, which admits the principle, that an inquiry for mesne profits will lie before error. He showed large sums in damages were found in the books of precedents on writ of inquiry, and that writs of inquiry in ejectment had issued before the revolution, and that it had always been the practice to issue them. Cited Buller, 88.  2 Stra. 1056. Barnes's Notes, 87. Lill. Ent. 599. 606, 607. Gilb. 2. 8. 53. 93. 102. 298. 312.  1 Burr. 668. 3 Wils. 118. Burr. 668. 688. 2 Grompt. 222. 1 Bl. 360. Co. Litt. 199. b.  

DISPOSITION:
Writ of inquiry and inquisition quashed.  

OPINION:

 [*97]  The Court ordered the writ of inquiry and inquisition to be quashed, being of opinion that mesne profits cannot be given in evidence on a writ of inquiry. a

a See the case of M'Cubbin v. Shield's Lessee, ante, 7.

 [**3]  
The plaintiff removed the cause, by writ of error, to the court of appeals, where it abated by the death of the lessor of the plaintiff.  

28 of 37 DOCUMENTS 

CHASE'S Lessee vs. The Executors and Legatees of LINDENBERGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 224; 1798 Md. LEXIS 23 

October, 1798, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a lot of ground No. 10, particularly described by bounds, containing 9 1/4 acres, and 33 square perches of land, being part of a tract of land called Howard's Timber Neck, lying in Baltimore county.

THE PLAINTIFF'S TITLE. On the 5th of August 1780, Charles Ridgely, son of John, leased the above lot of ground to George Lindenberger, (father of the defendants, and under whom they claim,) for 99 years renewable forever, at the annual rent of 22l. 13s. Od. sterling money, payable on the 1st day of January yearly. Charles Ridgely died in December 1786.

On the 26th of November 1792, Samuel Chase, the lessor of the plaintiff, purchased the reversion in fee simple (at auction,) from William M'Laughlin, trustee of the creditors of the said Ridgely, under a decree of the court of chancery. M'Laughlin died before conveyance; and on the 22d of June 1795, Samuel Chase obtained a deed from Randolph B. Latimer, appointed by the chancellor trustee in the place of M'Laughlin. On the 9th of July 1795, Rebecca Ridgely, (widow of the said Charles Ridgely,) conveyed her life-estate to the said Chase, this lot having been assigned to her as her dower in the real estate of her deceased [**2]  husband.

The defendants claim under a lease from Charles Ridgely, therefore they cannot controvert his title, as their lessor.--1 Term. Rep. 758. 2 Term. Rep. 698. If two persons claim under the same title, neither of them can controvert it.--5 Term. Rep. 4. The lessor of the plaintiff claims also under the same Charles Ridgely, and if by his purchase at auction, and his conveyance in consequence thereof, he has Ridgely's title of the reversion, he is in virtue thereof entitled to the rents from the time of his purchase--Co. Litt. 151. b. 152. a. 305. b. 3 Co. 22. b.

The present ejectment is brought under the statute of the 4 George II. ch. 28, to recover five years rent from the 1st of January 1792, to 1st of January 1797, at 22l. 13s. Od. sterling per year.--3 Black. Com. 206.

By this statute in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry and ouster, an affidavit (of lessor) is necessary to prove three things, 1st. That half a year's rent was due before the declaration in ejectment was served. 2d. That no sufficient distress was to be found upon the demised premises, countervailing [**3]  the arrears then due. 3d. That the lessor had power to enter. On trial these three things must be proved.

The first thing to be proved under the statute is not denied. The second will be proved, (if required.) The third is incident to the reversion; and if the plaintiff is entitled to it he had a power to re-enter. Entry for non-payment of rent is expressly stipulated in the lease.--1 Burr. 620, for the form of affidavit. Runn. Eject. 67. Sheridan's Pr. 514. 1 Burr. 615, 618, 620.

The plaintiff, to support his ejectment at common law, must prove three things.--1st. That one year's rent was in arrear before action brought. 2d. That there was no sufficient distress to be found upon the premises. 3d. That the plaintiff made a lawful demand of the rent in arrear.

THE DEFENDANT'S DEFENCE. That Charles Ridgely, (son of John,) the lessor after the lease, cut down a dam, made before the lease, to convey water through the demised premises, and thereby turned away the water, and prevented it from passing through the lot.

To this defence four objections occur. a First. There is no mention of the water in the lease. Quere--Is any evidence admissible [**4]  to prove that the lessee was to have the benefit of the water? 2 Blk. Rep. 1249. 2 Fonblanc's Treat. of Eq. 188, in note, where all the cases on the subject are collected. 3 Atk. 384. Espinasse, 780, 781.

a These notes were made by the lessor of the plaintiff.

Second. If evidence is legal, and the fact is proved, yet the remedy by the lessee was by action on the case against the lessor for damages.

An action on the case lies for diverting a water course, but the plaintiff, to maintain such action, must shew a right to such water course. The action is maintainable on this ground, that the plaintiff has a property in the water course.--Carth. 116. 1 Ld. Raym. 248, 452. 2 Ld. Raym. 1402. 1 Com. Dig. 59.

Third. If Charles Ridgely, (son of John,) the lessor, did cut down the dam on Ridgely's Delight, and thereby turned the water from running to lot No. 10, the leased premises; yet such act is not sufficient, in law, to extinguish, or to suspend the rent.

1st. If the whole of the leased premises were evicted (or recovered at law,) by a stranger, by elder title, the whole rent is extinguished, or destroyed, and can never [**5]  revive.--Co. Litt. 147. b. 272. b. 3 Co. Rep. 22. a. b. 10 Co. 128. a. Salk. 65. This decision is grounded upon the defect in the lessor's title.

If no express covenant in the lease, yet the law implies one by the lessor, that the lessee shall enjoy his lease against the lawful entry and eviction of any man. The lessee, to justify nonpayment of the rent, must shew that he was evicted by an elder title.--Vaugh. 118. Law of Cov. 176. Vin. Ab. tit. Reut, 509, pl. 4. Fortes. 306. Cro. Eliz. 52.

2d. If PART of the leased premises is evicted, or recovered at law by a stranger, by elder title, there shall be an apportionment, or division of the rent, by the jury, who shall try the cause.--Co. Lit. 147. b. Cro. Ja. 310. 3. Vin. Ab. tit. Apportionment, 12, pl. 16, c. 17, pl. 1, 2. And the reason for apportionment is, because, though part be taken away, yet some part remains, and there is a part of the consideration money remaining due to the lessor; and if there was no apportionment, the act of the law, in the recovery by the stranger, would do wrong to the lessor.--Gilb. L. E. 283.

3d. If the lessor shall enter and evict (oust or expel,) the lessee of any part of [**6]  the leased premises, such act suspends the whole rent during such eviction; and there shall be no apportionment of the rent.--Co. Lit. 148. a. Ld. Raym. 77. This decision is founded on these reasons: 1st. The law will not allow any man to benefit himself by his own wrong, and therefore the lessor shall not apportion the rent by his own wrongful conduct. 2d. The contract for the rent is entire; and the lessor by his own act deprives himself of the benefit of such contract. 3d. The jury ought not to divide the rent in favour of the lessor, because the lessee contracted to pay the rent for the whole premises, and probably he would not have contracted for one part without the other. The loss of the rent is a proper punishment on the lessor for his violence and injury to his lessee.--Gilb. Evid. 243. 5 Coke 113. b. Co. Lit. 319. a. Dyer 212. b. 18 Vin. Ab. tit. Rent, 513, pl. 2. 12 Vin. Ab. tit. Extinguishment, 456, pl. 1. 457. pl. 7. 1 Vent. 277. Hob. 190, 326. Styles, 482, S. C. Hutt. 6. Esp. 235.

The reason why a tortious entry by the lessor suspends the whole rent is, because the rent by the original contract is payable out of, and as a retribution for the whole demised [**7]  premises; therefore when the lessor makes a tortious entry into part of the land, the lessee shall pay nothing for the residue; the lessor not suffering the lessee to enjoy that for which the rent was payable by the contract.--Gilb. Treat. on Actions of Debt, 429, 430.

To suspend rent, three acts or circumstances must concur: 1st. A tortious entry by the lessor. 2d. An eviction, expulsion, ouster, or putting out, (for they are all synonymous terms and all mean an amotion of the possession of the lessee, by the lessor. 3d. The holding the lessee out of possession, or not permitting him to re-enter--Cowp. 243. Huntt vs. Cope. Perkins, sec. 825. S. P. Vent. 67. L. Raym. 369. Espin. 235, 262, 307.

The tortious entry alone is no bar. The expulsion makes the first part of the bar, and the holding out the rest.--Per Hott, Comb. 380.

What fact constitutes a tortious entry by the lessor, or an eviction, or a holding out, of the lessee, is a matter of law, to be decided by the court--18 Vin. Ab. tit. Rent. 504, pl. 11.

The taking away a pent-house fixed to the premises, is a trespass, but no suspension of the rent.--2 Jones, 148. S. P. Cowp. 243. Cro. Eliz. 341.  [**8]  Golds. 6, 125, pl. 15.

It was formerly doubted whether the lessor's entry wrongfully into part of the lands demised did not suspend the whole rent during such tortious entry, or whether the rent ought not to be apportioned. But the law is now settled, that such tortious entry suspends the whole rent, until the tenant be restored to the whole possession. For if an apportionment were allowed in this case, it would be in the power of the lessor to resume any part of the land against his contract, and thus by taking that which lies most convenient for the tenant, render the remainder, in effect, useless--2 Bac. Ab. 450. 4 Bac. Ab. 369--and it would encourage the landlord to injure or disturb his tenant.

It cannot be proved that Charles Ridgely, in his life-time, (or any person claiming under him,) ever made a tortious entry on the premises. If there was no tortious entry, there could not be any eviction; if there had been a tortious entry, yet there never was any eviction; and if there was both a tortious entry and an eviction, yet there never was any holding out of the lessee. To suspend the rent the defendants must prove that all the three acts were committed by Ridgely, or [**9]  those who claim under him, and they cannot prove either act; ergo they have failed in their defence.

The rules of pleading are founded in good sense; and a uniform mode of pleading is strong evidence of the law--3 Wood, 53 note. Cunningham's preface to Heath's maxims, 4.

If to an action of debt, or covenant, by lessor against the lessee, for the recovery of rent, the lessee sets up eviction by his lessor, in bar of the action, his plea should properly contain three facts, that the lessor tortiously entered and evicted him, and kept him out of possession. If the lessor denies these facts, he must reply, "that he did not evict or expel the lessee," and issue must be joined thereon. If the facts in the plea are true, but the lessee after the eviction re-entered and enjoyed the premises until after the rent became due, the lessor, to destroy this plea in bar, may reply such re-entry and enjoyment, and issue must be taken thereon; and if found for the lessor will maintain his action--Vide Rastal's Ent. 175. Bro. Red. 231, 260. 2 Mod. Int. 135. 1 Saund, 203. Pl. Genl. 252, 278, 279. Thom. 173, 220. Clift. 150. Lill. Ent. 180.

Whatever facts plead [**10]  to an action of debt, or covenant for rent, are sufficient in law to bar such action, the same facts may be given in evidence to defeat an action of ejectment, but no other or less facts can have that effect. If this was not the law, the right of the parties would depend on the species of action; and in one the plaintiff would recover, and in another, for the same cause of action, he would be defeated.

Let us suppose that Charles Ridgely, in his life-time, (or the present plaintiff,) had brought an action of debt for the recovery of the rent in arrear, and that the defendants had plead eviction, which would run in these words: "That after the demise, and before any rent by that demise became due and payable to the plaintiff, the said plaintiff, on the     day of    , with force and arms, entered into parcel of the premises, and the defendants from their possession thereof ejected, expelled and amoved, and the said defendants so from thence until--kept out, &c. The replication is, "that the plaintiff did not re-enter, nor expel and amove in manner and form," &c. and issue. Lilly's Ent. 180. Carth. 32. 2 Mod. Entr. 285.

Would not the defendants be obliged to prove the [**11]  truth of their plea? Would evidence of some act done by the plaintiff off the land, from whence consequential damage arose to the defendants, support the plea? Would such act sustain any part of the plea? The defendants must prove all the facts in the plea to be true; and for that purpose they must prove first, a tortious or wrongful entry on the land by the plaintiff. If the defendants proved this, and no more, they must fail, because they would then only prove a trespass, for which the law gives a proper and sufficient remedy by action of trespass. If the fact could be proved that Charles Ridgely, the lessor, cut a dam off the lot, by which the water was turned from it, and thereby the benefit of the water was lost by the lessee, yet such act would be no entry on the lot, much less a tortious one. The distinction is well known, that where the injury is consequential, an action on the case lies; and that where the injury is immediate, and not consequential, an action of trespass lies.--3 Blk. Com. 123. 2 Term Rep. 231. But the defendants, in the second place must prove, that the plaintiff evicted, or expelled, or amoved them from the possession of the land; and this fact [**12]  is the gist, or substance of the defence. The third fact, that the plaintiff still held or kept the defendants out of possession, arises out of the second fact, and would be presumed.

4th. If rent was suspended, yet it was revived by the subsequent re-entry and enjoyment of the premises by the lessor, until after the rent became due.

1st. If the lessee, after eviction, re-enters and enjoys the leased premises until after the rent becomes due, by such acts the rent will be revived. If a lessor evicts his lessee, it is in his option to be wholly discharged from all future rent; or, if for his benefit, he may re-enter and continue his lease.--Gilb. Treat. on action of debt, 429, 430.

2d. There is a plain and great difference between the suspension, and the extinguishment of a right. A suspension of a right is only a temporary obstruction to the remedy for the recovery thereof. An extinguishment of a right is a perpetual bar.

To apply this distinction to the present case. The right to recover rent may be suspended, or extinguished. Rents are said to be suspended, or not in esse for a time, and in the law phrase, "et tune dormiunt;" as where the lessor enters and evicts,  [**13]  or expels the lessee of any part of the leased premises; such acts will suspend the whole rent during the time of such eviction or expulsion.

But in this case the rent may be revived, or awakened; as where the lessee, after tortious entry and eviction, or expulsion, re-enters and enjoys the premises until after the rent becomes due. Rents are said to be extinguished, or not in esse, or extinct, or dead, or lost forever, and in the law phrase, "et tunc moriuntur," and will never revive; as where the whole premises are evicted, or recovered at law, by a stranger by an elder title. If only part of the premises are evicted, or recovered, at law, by a stranger, by an elder title, there will be an apportionment. Bro. Ab. 21, pl. 314. Gilb. Evid. 243. Co. Litt. 147. b. 313. a. 11 Vin. Ab. til. Extinguishment, 456.

In ejectment, on condition of re-entry for non-payment of rent, proof of actual entry and ouster is not necessary, nor is it necessary to prove demand of rent since the statute of 4 George II. ch. 28, which gives ejectment without demand or re-entry. The law was so before the statute.--Runnington, 21. L. Ray. 750. S. C. Salk. 259. 1 Vent. 332. 1 Nels. Ab. 654. 3 Blk.  [**14]  Com. 206, bottom, 233. Dougl. 469. Sheridan's Practice, 514 to 517.

STATUTES RESPECTING RENTS. Statute 32 Henry VIII. ch. 37, executors of tenants in fee of rents shall have debt or distress for the arrears--husbands seized in right of their wives, or tenant per autre vie, after the death of the wife, or cestui que vie may distrain or have debt for arrears.--id. s. 3.

Statute 4 Ann. ch. 16, s. 10.--Tenants shall not be prejudiced by payment of rent to a grantor before notice of the grant.

Statute 8 Ann. ch. 14.--Goods liable to distress not to be taken in execution without paying the arrears.--Action of debt given for arrears upon a lease for life.

Statute 4 George II. ch. 28.--Tenants holding over after demand, to pay double rent.--Ejectment may be delivered where half a year's rent is in arrear.

Statute 11 George II. ch. 19.--Tenants giving warning, and not quitting, to pay double rent. Crops growing may be distrained. Where the demise is not by deed, rent may be recovered by an action on the case for use and occupation. Penalty on tenants concealing ejectments from their landlords. Landlords may be made defendants with or without tenants.

Note. In the [**15]  special verdict in case of Calvert's lessee vs. Eden, et al. (May 1789,) 2 Harris & M'Henry's Rep. 290, it is found that this last statute extends to Maryland.  

DISPOSITION:
Judgment entered for the plaintiff for possession, and costs.  

COUNSEL:
Cooke, for the plaintiff.

Martin, (Attorney General,) for the defendants.  

OPINION:

 [*230]  The following point was submitted for the court's opinion thereon, to wit:
Whether the plaintiff, to support the present ejectment under the statute of 4 George II. ch. 28. entitled, "An act for the more effectual preventing frauds committed by tenants, and for the more easy recovery of rents, and the renewal of leases," is obliged to prove, on the trial, the three following facts:
1st. That he, the lessor of the plaintiff, demanded the rent on the demised premises.

 [*231]  2d. That the lessor of the plaintiff demanded the rent on the day on which it became due in virtue of the lease by Charles Ridgely, son of John, to George Lindenberger, on the 5th of August 1780.
3d. That the lessor of the plaintiff's demand of the rent was for the exact sum due for the rent.
The point was waived by the attorney general, and judgment was entered for [**16]  the plaintiff for possession, and costs.  

29 of 37 DOCUMENTS 

Linney Hopkins and Martin Housar, and Mary his Wife, Lessee, against John Threlkeld.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 443; 1796 Md. LEXIS 11 

May, 1796, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT, for part of a tract of land called The Dunghill, lying in Montgomery county.

By the statement of facts submitted to the court for their opinion, it is admitted and agreed, that the tract of land called The Dunghill, containing 536 acres, was granted by Charles, late Lord Baltimore, on the 10th of August, 1715, by patent, to Walter Evans. That the said Walter Evans, by virtue of the said patent, was seised and possessed of the said tract of land, and being so seised, on or about the 10th of August, 1724, did execute a deed of conveyance to James Herbert and Eleanor his wife, by which he conveyed "unto the said James Herbert, during his lifetime, and Eleanor his wife, and the heirs of her body, lawfully begotten, for ever, all the said Walter and Ann his wife's right of, in and to the aforesaid tract and parcel of land called The Dunghill, lying in Prince George's county aforesaid, beginning, &c. including 100 acres; to have and to hold the said Walter and Ann their right of, in and to the aforesaid tract of land, with the premises and appurtenances, unto him the said James during his lifetime, and Eleanor his wife, and heirs, lawfully begotten, for ever, to the only [**2]  proper use, benefit and behoof of them the said James Herbert and Eleanor his wife as aforesaid."

It is further agreed that in virtue of the said deed, the said James Herbert and Eleanor his wife, (daughter of the said Walter Evans,) entered into the 100 acres mentioned in the declaration, and were seised and possessed thereof, and had issue William Herbert, who is since dead without issue, and Linney Herbert, (now Linney Hopkins, and one of the lessors of the plaintiff,) and the said James Herbert departed this life, intestate, about the year 1740; that his widow afterwards intermarried with a certain William Pritchard, by whom she had issue a daughter named Mary Pritchard, now Mary Housar, by virtue of her marriage with Martin Housar, which said Mary and Martin are lessors of the plaintiff, and, with Linney Hopkins aforesaid, claim the land mentioned in the declaration. That the said Mary, at the time of her first intermarriage with a certain Nathan Offutt, on the 2d February, 1767, was of the age of 16 years, and no more, and that she continued under coverture until the month of May, in the year 1777, when the said Nathan Offutt died, and afterwards, some time in the month [**3]  of June, 1779, the said Mary intermarried with Martin Housar, her present husband. That Linney Hopkins, formerly Linney Herbert, intermarried with a certain James Hopkins some time in the year 1761, which said James departed this life in the year 1780.

It is further agreed that Eleanor Herbert, in the deed mentioned, after the death of her husband James Herbert, continued in the possession of the premises until the time of her death, which happened in the year 1762, when she died intestate, and left issue as aforesaid. That William Herbert, the son, on the 19th of October, 1753, made a deed of bargain and sale with warranty of the land in question to Henry Threlkeld. That afterwards, in the same year, the said William Herbert left this state, and died in the month of April, 1783, intestate, and without issue, in North Carolina. That in the year 1762, after the death of the said Eleanor, the said Henry Threlkeld entered into the premises in virtue of the deed to him, and continued seised and possessed under the said deed until the time of his death in 1783, when he died intestate leaving the defendant, John Threlkeld, his only son and heir at law, to whom the said land descended,  [**4]  and who hath been ever since the death of his father, and still is, seised and possessed of the same.

If, upon this state of the case, the court are of opinion that the plaintiff is entitled, then judgment to be entered for possession and costs; if not, judgment of nonsuit to be entered.  

DISPOSITION:
Case dismissed.  

COUNSEL:
Cooke, for the defendant. On the 10th of August, 1724, Walter Evans conveyed, in the premises of the deed, to "James Herbert, during his life and the life of his wife Eleanor, and the heirs of her body," the premises in question. The habendum is, "to the said James, during his life and the life of the said Eleanor, and her heirs, lawfully begotten."

This deed conveys no estate to Eleanor, unless by implication, either in the premises or in the habendum. If this is the construction, then the limitation to the heirs of Eleanor, in the habendum, is a contingent interest to vest in such person as should be her heir, at the time of her death, in fee-simple; because the property passing by deed, the habendum does not limit of what body the heirs should be, it cannot be restrained by intendment to make it an estate tail. See 1 P. Wms. 70. 2 Ld. Raym. 1144. Salk. 620. 3 Salk.  [**5]  336. Cro. Eliz. 478. Mo. 424. Vin. Grant, I. K. L. & M. 3 Bac. Abr. 260, 261.

If James Herbert, the eldest son of Eleanor, took an estate in fee, which I contend he would do, after the death of his mother, either as a contingent interest by purchase, or through his mother by descent; in either case having alienated the estate in her life by the deed dated 29th October, 1753, with warranty, he and the lessors of the plaintiff claiming through him, are barred by the warranty, and may be rebutted. Lit. s. 706, 707. Harg. Co. Lit. 374. b. Saund. Uses & Trusts, 432. Co. Lit. 365. a. 385. a. Shep. 327. 5 Bac. Abr. 447.

If the court should think the deed of the 10th of August, 1724, conveyed an estate tail to Eleanor, (which I think it impossible to show,) then I contend the deed of 29th of October, 1753, with warranty, is a discontinuance of the estate tail, and more than twenty years' adverse possession have since elapsed, and more than ten years since the disability ceased of Mary Housar, in 1777, and of Linney Hopkins, in 1780, have elapsed before the bringing of this ejectment. And moreover, a descent has been cast by the death of Henry Threlkeld, and more than five years'  [**6]  adverse possession thereafter by his son, the present defendant.

A tenant in tail may discontinue, but he cannot disseise the heir; because the heir has no claim but in representation after his death. Gilb. Ten. 116, 117.

A bargain and sale, release or covenant to stand seised with warranty, is a discontinuance. Harg. Co. Litt. 330. n. Gilb. Ten. 119, 120. 1 Salk. 245. Harg. Co. Lit. 327. b. 328. a.

If the estate is discontinued, then the action of ejectment will not lie, and the heir is put to his formedon. Runn. Eject. 12.

The lessor must have a right of entry to support an ejectment; therefore, if there be a descent cast, or a discontinuance, the issue is put to his formedon. Runn. Eject. 11, 12. 3 Bl. Com. 206.

I consider the general operation of the statute of limitations to be, that if there be a disseisin or ouster when there is no disability, it will overrun infancy or coverture which may afterwards intervene. But if the ouster is against an infant, &c. then he has twenty years from the time of the ouster, or ten years after the disability is removed, as it may be most for his advantage. In this case, supposing the conveyance of the son, in 1753, did [**7]  not operate as a disseisin, yet the tortious holding commenced in 1756, and continued after the death of Eleanor, who died in 1762. It then commenced at least as against William, and all others claiming through him.

If the issue of Eleanor took an estate in fee-simple, his conveyance and warranty without assets is a bar to him, and all others claiming through him. If he would have taken an estate tail, then it operated as a discontinuance, and the action of ejectment will not lie. In either case, the tortious holding, and descent cast, would bar the right of entry, and the case seems not void of merits on the point of limitations.

Duvall, for the plaintiff. On the 10th of August, 1724, Walter Evans conveyed by deed to James Herbert, during his lifetime, and Eleanor his wife, and the heirs of her body, lawfully begotten, for ever, the land in question, being part of The Dunghill. These are the expressions in the premises of the deed. Habendum unto him the said James, during his lifetime, and Eleanor his wife, and heirs, lawfully begotten, for ever; as may be seen by reference to the deed. Mr. Cooke is inaccurate in his state of the case.

It must be admitted that the expressions [**8]  of the deed are not clear and explicit, and the habendum is different from the premises. But taking the whole together, I think the intention is apparent, and I conceive that the words made use of are sufficiently clear to designate the estate intended to be given. In the creation of an estate tail, it is requisite that the words show from whose body the heirs must proceed.

It appears to me that the deed above mentioned conveyed to James Herbert an estate for life in the land in dispute; remainder to his wife and her heirs in tail; or it conveyed an estate for life to the husband and wife, remainder to her issue in tail.

To create an estate in tail, it is requisite that words be used to show from whose body the heirs must proceed. Such words are used is Evans's deed; the lands are given to James Herbert during his lifetime, and Eleanor his wife, and the heirs of her body, lawfully begotten.

For the defendant, 1 P. Wms. and several other authorities, are cited to prove that the deed conveyed a fee to the children of the wife. All the authorities cited speak of the same case, which case is very different from that under consideration; it arose on a deed of surrender ad [**9]  opus et usum praedicti Zachariae for his life, and after his decease, to the use of Valentine Cliff, his eldest son, and Alice, his wife, pro et durante termino vitarum suarum et haeredum et assignatorum praedictorum Valentini et Aliciae, &c.

If Evans's deed had conveyed the premises to James Herbert for life, and afterwards to his wife and her heirs and assigns, then the cases would have been similar, and in the cases cited the judges were divided in opinion.

In all cases where a limitation in a deed has been adjudged in fee-simple, it has been for want of proper words to describe of what body the issue should be, and this is the reason given. In the case under consideration, it is plain that the heirs were to proceed from the body of Eleanor Herbert, who was a daughter of the donor, Walter Evans.

If I am right in my construction of this deed, then the deed of William Herbert, the son, dated the 29th of October, 1753, cannot work a discontinuance of the entail; because William was not tenant in life, his mother being then alive, and in possession of the premises, and she continued in possession until the time of her death, which happened in 1762.

The counsel for [**10]  the defendant states, that tenant in tail may discontinue, &c. but it will not be contended that the deed of the heir in tail, in the lifetime of the ancestor, and while the ancestor is seised and possessed, to a stranger, will discontinue the estate tail. The deed of William is wholly inoperative.

The defendant's case, I apprehend, has no merits on the point of limitations. Mrs. Herbert, the mother of the lessors, died seised in 1762, in the infancy of her children; and although they claim through her, and not through William, yet they had no right of action until after his death, which happened in 1783, and this ejectment was brought before a lapse of ten years.

The defendant never entered until after the death of Mrs. Herbert, in 1762; the lessor was then an infant, and married during her infancy, and she was a feme covert at the time of the death of her brother, and has continued so ever since.

The warranty cannot affect the lessors of the plaintiff, the son, William Herbert, not being in possession. Harg. Note on Co. Lit. 374. a.

Cooke, for the appellant.

Mason and Duvall, for the appellee.  

OPINION:

 [*449]  The Court gave judgment, on the case stated,  [**11]  for the plaintiff; and cited, "It is a maxim that he who has no freehold in the land cannot, by any means, discontinue the estate therein." Bac. Abr. Discontinuance, 90. 95. Carth. 110.
The defendant appealed to the court of appeals, and in that court the case was, by consent, dismissed at November term, 1796.  

30 of 37 DOCUMENTS 

Russell and Lux against Moor Falls.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 457; 1796 Md. LEXIS 15 

June, 1796, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from the court of chancery.

The record states that a bill was filed on the 1st of October, 1790, by Moor Falls, (the appellee,) to establish the will of Catharine Lux, wife of George Lux, (one of the appellants,) made under a power given her by deeds legally executed on the 18th of September, 1789.

By the consent of the parties the following issue was directed by the chancellor, to be tried in the general court for the Western Shore, to wit, "Whether Catharine Lux, wife of George Lux, one of the defendants, made, executed and attested, any instrument in writing, as and for her last will and testament, in the manner required by the statute of frauds and perjuries, in case of a will for passing real estates."

At May term, 1791, the said issue was accordingly tried in the general court, and that court gave their direction to the jury, which direction and the verdict found by the jury are hereafter set forth in the certificate returned by the judges of the general court to the chancellor.

A motion was made to set aside the verdict, and to grant a new trial, and the defendants, by their counsel, filed reasons for setting aside the verdict.

The [**2]  general court continued the case on the motion for a new trial, until the next term.

The complainant exhibited his petition to the chancellor, stating that the issue had been tried in the general court, and a verdict found in favour of the complainant, and prayed the chancellor would proceed to decree.

The chancellor fixed a day for the hearing of counsel upon the petition, and on that day the case was argued.

The chancellor, afterwards, on the 17th of June, 1791, made the following order:

"In this cause an issue having been directed to be tried in the general court for the Western Shore, as appears by reference to the proceedings, and the complainant's counsel having filed in the court a certificate from the clerk of the general court, from which it appears that the said issue had been tried at the last May term, and that there hath been a finding by the jury in favour of the complainant. The whole proceedings in the said general court being set forth in the said certificate, and the complainant having likewise filed a petition to the chancellor, praying him to proceed upon the verdict so found, or to make such further order as to him may seem meet, and the chancellor [**3]  having appointed the petition to be heard on this day, and the counsel on the part of the defendant having, on the hearing, objected that, as it appears by the said certificate, that a motion to the said general court for a new trial of the said issue hath been made to the said general court, and by them postponed to the succeeding term in October next, the chancellor cannot properly proceed to a final hearing of the cause, until the said general court shall have determined on the said motion, and their proceedings shall have been by their order certified to this court; and the arguments of the counsel on each side, relative to the said petition, having been heard and considered, the chancellor is of opinion as follows: That there is no necessity for him to decide whether or not the general court hath authority to grant a new trial; that whether that court hath the said authority, or not, there can be no doubt that the chancellor may, in the mean time, exercise his own discretion on the subject, the said issue having been directed for no other purpose than to satisfy his own conscience relative to the fact litigated between the parties, and that taking the aforesaid certificate of [**4]  the clerk as a sufficient return of the proceedings in the general court, he may proceed with propriety to a final hearing of the cause, provided he shall be of opinion that the said finding of the jury is a complete verdict, and that no just cause shall be shown for directing a new trial of the issue aforesaid. It is, therefore, adjudged and ordered, that this cause be finally heard on Tuesday the second day of August next, unless cause be shown for granting a new trial of the issue aforesaid: provided a copy of this order be served on the defendants, or their counsel, within twenty days from the date hereof."

Owing to the indisposition of counsel, the time for hearing the case was extended until the first Tuesday of October, at which time (the reasons and motion for a new trial in the general court having been withdrawn) two of the judges, R. Goldsborough and J. T. Chase, Esqs. (Thomas Johnson, Esq. the chief judge when the issue was tried being since dead,) certified to the chancellor the trial of the said issue, as follows, viz.

"We hereby certify that the issue above mentioned was tried before us, at the general court, in May term last; and that on the trial of the said [**5]  issue it was proved in evidence to the jury by the testimony of Mary Chambers, one of the subscribing witnesses to the will of Mrs. Lux, that the deponent was below stairs in Mr. Lux's house, and was called up into Mrs. Lux's bedchamber, but did not know by whom, nor for what purpose; that she did not see Mrs. Lux sign the will, but heard her declare it was her last will and testament, and the deponent was asked to be a witness, but did not recollect by whom. That the witnesses went into the next room, which was on the same floor, to sign; and the deponent, Jannet Vayne and Mrs. Williamson, signed their names to the will; but did not recollect they were requested to go there. That after the will was signed she saw Mrs. Lux have it in her hands as she lay in bed, and some time after she gave the witness the will to lock up, which she did, and gave it out after the death of Mrs. Lux. That the will was executed in September, and she died the February following at Philadelphia. That no person directed the signing; but Mr. Russell called on them to take notice of their signing. The deponent further declared that Mrs. Lux was in bed when she signed the will, and set up in bed to sign it:  [**6]  the room where the witnesses signed adjoined that where Mrs. Lux lay when she signed the will; that the door was open, but the bed in which Mrs. Lux lay was so situated she could not have seen the witnesses sign as she lay when they left the room. That Mrs. Lux was very ill, and complained of being hardly able to write. Mrs. Vayne proposed that some person should write her name, which the deponent supposed was on account of her weakness. That she does not know Mrs. Lux got out of bed whilst the witnesses were attesting the will, and believed she was not able to get out of bed without assistance, and that if she had got out of bed, the deponent must have heard her; that after Mrs. Lux had signed the will, she immediately lay down in bed. The witnesses went into the other room to subscribe the will, and, immediately after subscribing, the deponent returned into the room and found her in bed in the same situation they had left her.

"It was also proved by the testimony of Elizabeth Williamson, another subscribing witness to the will, that her name, subscribed to the attestation of the will of Mrs. Lux, is her hand-writing, but that she did not see Mrs. Lux sign the will; that the [**7]  witness knew nothing of Mrs. Lux's intention to execute a will, till she was called from below stairs into her room to be a witness; she did not recollect who called her up, nor that any other persons were in Mrs. Lux's room except the witnesses and Mr. William Russell. That the witnesses were asked into another room to subscribe their names, and were only absent while they were signing their names, and returned again to Mrs. Lux in a few minutes; that Mr. Russell was present with the witnesses in the room where they signed, and laid the will on the desk, and directed them to see each other sign, and while the witnesses were signing no person was in the room with Mrs. Lux; that the deponent came to Mr. Lux's house the day before and found Mrs. Lux ill, who had been taken with a vomiting of blood; that she was as weak as she could be to live, and could not have got out of bed without assistance, and that it was not possible she could see the witnesses subscribe from the bed in which she lay. That after the will was subscribed by the witnesses, it was returned to Mrs. Lux by Mr. Russell; that the deponent continued with Mrs. Lux some days after, who was confined to her chamber in a very [**8]  weak state, and had no conversation with her on the subject of her will.

"It was also proved by the testimony of Jannet Vayne, another subscribing witness to the will, that her name, subscribed to the will of Mrs. Lux, is her hand-writing; that the witness saw Mrs. Lux sign the will, and declared the same to be her will, and saw the other witnesses subscribe their names; that Mrs. Lux was at the time in a very weak state, and raised herself up to sign her name with difficulty, and said she did not know if she should be able to do it. The deponent believed it impossible for her to get out of bed without assistance; that the witnesses to the will went into another room to sign their names, and that it was not possible for her to see them, in the position in which she lay, subscribe their names. That they were but a short time in the room where they signed their names, and when returned to Mrs. Lux, they found her laying in the bed where they had left her.

"It was also proved by the testimony of Richardson Stewart, that some time after the bill filed in chancery he was showed the room, and the bed, and the position of the said bed, as it was alleged by Mary Chambers, in which [**9]  Mrs. Lux lay at the time she executed her will, and also the room and position of the desk when the witnesses to the will subscribed their names, at which they wrote; that from the bed he could not see the desk in the other room; that Mary Chambers set down at the desk to write, where she alleged the witnesses set when they subscribed the will, and he stretched himself over the foot of the bed as far as he could, and could then only see the skirt of Miss Chambers's petticoat as she sat at the desk, but could not see her write; that when he made his observations the bed was not removed from the wall.

"It was further proved by the testimony of Samuel Johnson, Esq. that he drew the will of Mrs. Lux from minutes delivered to him by Mr. Russell, and agreeable thereto; that Mr. Russell urged him at the time to use expedition, lest Mrs. Lux should not be able, or be in a situation to execute it, and seemed anxious to have the will ready and executed with the least possible delay; and that the said will was delivered to the said William Russell, who was, at the time, and had been for some years before, one of the justices of the orphans' court of Baltimore county.

"It was also given [**10]  in evidence, by the subscribing witnesses to the said will, that they formed their opinion of Mrs. Lux's being unable without assistance to leave her bed, from their general idea of her situation and apparent weakness, and not from any exertions they had seen her make for that purpose, and failing therein.

"The court also certify the evidence of Mrs. Mary Robinson, as contained in her deposition taken on a commission sent to Philadelphia. [The testimony of Mrs. Robinson is, that she was acquainted with Mrs. Lux from the year 1778, to the day of her death, and that there subsisted the most strict intimacy and friendship between them; that Mrs. Lux died in Philadelphia on or about the 8th or 9th of February, 1790. That she had repeated conversations with Mrs. Lux respecting her having made a will; but that Mrs. Lux never mentioned anything about it to her in the presence of a third person excepting on the afternoon of the day on which she died, and then in the presence of her husband, Mr. George Lux. She said she had neglected some small matters in her will, and wished either her said husband or the witness to take a memorandum thereof, upon which Mr. Lux did take a memorandum [**11]  as Mrs. Lux had described. That at other times when Mrs. Lux and herself were together, she mentioned the particulars of her will to her, and asked her her opinion of the legacy she had left Miss Bird, and of that to the children of Mr. Russell, and upon the witness expressing her approbation thereof, Mrs. Lux declared that she was very happy therein, and all her friends approved of what she had done. And Mrs. Lux acquainted the witness that Mr. Russell had approved of her will, and had, before she executed it, taken the heads thereof to a gentleman of eminence in the law. That she knows William Russell, the defendant, and has had conversations with him respecting the will of Mrs. Lux; that the witness went from Philadelphia to Chatsworth, the seat of Mr. Lux, near Baltimore, to attend the funeral of Mrs. Lux, and that some time after the funeral, about the 15th of February, 1790, she and Mr. Russell being alone, he mentioned the will of Mrs. Lux in terms of approbation, and said that she, the witness, might make herself easy as to the will, and that she might acquaint Mr. Biddle's family, in Philadelphia, that all the wishes of the deceased should be complied with, it being in his [**12]  power to have her will executed in conformity to those wishes, and that he would do so.]

"Whereupon the court, at the instance of the defendant's counsel, gave the following opinion, and direction to the jury, viz. 'All the necessary forms to the due execution of this will are agreed to have been complied with, except that of the witnesses subscribing, as such, in the presence of the testatrix. Evidence has been given touching the situation of the witnesses and the testatrix at the time of the witnesses' subscribing; if, from the evidence, you are of opinion that the situation of the witnesses and the testatrix at the time of the attestation, was such that the testatrix might have seen the witnesses subscribe as such, the execution of the will was proper and legal, although the testatrix did not actually see the witnesses subscribe their names; otherwise not.'

"And the plaintiff's counsel, after the court had delivered the opinion aforesaid, contending that the situation of the witnesses and testatrix therein mentioned, meant the same as if by a change of her position, she might from the room she was in see the witnesses subscribe as such, the court explained their direction [**13]  to the jury, and informed them, 'That it was necessary the testatrix, at the time of attesting the said will by the witnesses, might, without changing her position, have seen them sign the same.'

"Whereupon the said jury, after retiring to consider of their verdict, returned the same to the court in the words following, viz. 'We the jurors are of opinion, from the evidence, that the testatrix, Mrs. Lux, might have seen the witnesses sign her will from the room wherein she lay, provided she had made such an exertion; and, therefore, agreeable to the direction of your honours, find a verdict for the plaintiff.'

"We further certify, that by our direction to the jury in explanation of our first direction, we intended to convey and impress the jury by the words, 'without changing her position,' that it was necessary the testatrix, at the time of attesting the said will by the witnesses, might, without getting out of the bed where she then lay, have seen them sign the same.

"R. GOLDSBOROUGH.

"J. T. CHASE.

"October 31st, 1791."

The Chancellor, on the 13th of March, 1792, made the following order, viz.

"The certificate of the clerk of the general court, under [**14]  the seal of his office, stating the trial of the issue heretofore directed in this cause, and the finding of the jury under the direction of the court having been obtained; and the complainant having thereon petitioned the chancellor to make such order as to him should appear meet, the chancellor did accordingly order a final hearing of the cause on a certain day, unless, &c. On that day, after hearing the counsel on each side, the chancellor thought proper to postpone the final hearing until the defendants should have an opportunity of obtaining a certificate from the judges of the general court, stating their opinion of the said finding. A certificate has accordingly been obtained from two of the said judges, stating the whole proceedings on the trial, the evidence, the direction of the court, and the explanation of that direction, which appears not at first to have been understood. They do not expressly say that the finding of the jury was inconsistent with their direction, but, from a view of the evidence, the direction and explanation, the chancellor cannot conceive otherwise than that the finding of the jury in favour of the complainant was not, in the opinion of the judges,  [**15]  warranted by the evidence. The chancellor cannot but regret that the aforesaid opinion of the judges does not coincide with his own sentiments; he apprehends that agreeably to the principle of sundry decisions in England, the will of Catharine Lux was attested in the manner prescribed by the statute. The law cannot, he presumes, admit of such distinctions as these--the attesting a will in the same room with the testator shall be good, although the testator's face was turned from the witnesses--so likewise "the attesting a will shall be good, although the testator was not in the house with the witnesses, nor actually saw the attestation, provided only he could have seen the attestation from the coach in which he sat during the transaction. But the signing of the witnesses in a room communicating by a door with, and divided by a partition from, the room in which the testator stood, sat or lay, shall not be good, unless the testator, without moving from the spot where he stood, sat, or lay, might have seen the signing had he been disposed to look that way." The requisite of law is the presence of the testator. There is no certain precise definition of the word presence; but the chancellor [**16]  conceives the true meaning of the law to be this; that the witnesses, at the request of the testator, shall immediately proceed to the attestation, without any material change of place, or interval of time, or intervening material circumstances, and that the testator, at the moment, shall be conscious of what the witnesses are about. A testator is sitting with his face towards the chimney place, and the witnesses attesting behind his back, in a distant corner of the room; this shall be good, provided there was only vacant space between him and the witnesses. This is admitted: but can it be supposed that, if at the instant before the signing, a screen were accidentally interposed between the testator and witnesses, the attestation would be therefore bad? certainly not. As the chancellor does not think it proper for him, on a point of law, to decide contrary to the opinion of the judges of the general court, or, on their opinion, to decree against his own sentiments, he proposes that the case be stated for the opinion of the judges of the court of appeals. Not that he presumes he has a right to demand an opinion from the judges of a superior court; but that he hopes, under the peculiar [**17]  circumstances of this case, their honours will deem it not improper to give an opinion, which will be decisive. Should they decline it, the chancellor must, in the end, determine according to his own conscience."

A. C. HANSON, Chancellor.

It is presumed the court of appeals did not give the opinion requested by the chancellor; for he afterwards, at February term, 1793, made the following decree, viz.

"This cause standing ready for a final decision on the equity, and being submitted to the chancellor, the bill, answers, and all other proceedings were by the chancellor read and considered; and all the matters stated in the bill, except the due execution of the last will and testament of Catharine Lux, being admitted by the answers; and the conscience of the chancellor being satisfied, from the transcripts and certificates of the proceedings in the general court, relative to the issue directed to be there tried, that the said last will and testament was duly executed in the manner required by the statute of frauds and perjuries in the case of a will for passing land.

"It is thereupon, this 15th day of April, 1793, by Alexander Contee Hanson, chancellor, and by the [**18]  authority of this court, adjudged, ordered and decreed, that the defendant, William Russell, do execute the trust reposed in him by the deeds in the bill mentioned, and the last will and testament aforesaid, and pursue the directions in the said will contained relative to the complainant, and that the said defendant and trustee, William Russell, do account with the complainant, Moor Falls, for the annual sums or interest, which, agreeably to the said deeds of trust, and the directions of the said last will and testament, ought to have been paid, and are in equity due to the complainant; and that the auditor of this court do state the said account, and return to this court, subject to the objections of each party, and to be done with as the chancellor shall think proper.

"A. C. HANSON, Chancellor." 

COUNSEL:
The defendants, Russell and Lux, appealed from the said decree to the court of appeals; and the case was, at June term, 1796, argued in that court.

Jenings, for the appellants (Russell and Lux.) The question before this court is, whether the will of Catharine Lux is executed pursuant to the statute of frauds, which requires the witnesses to sign in the presence of the testator.  [**19]  

This was thought necessary, otherwise, if the will was carried from her presence, one might be imposed different from that she signed.

The position is admitted; but it has been said that this will was signed in the presence of the testatrix.

It must be admitted, for the evidence expressly proves it, that the testatrix could not see the witnesses sign the will in the position, or from the bed, where she lay.

If this is a good will, it will destroy the force of that clause in the statute which directs a signing by the witnesses in the testator's presence.

The law being clear, no court has a right to deviate from it.

The word position, in the books, means the situation in which the testatrix was then in, as the bed, the chair, the coach, &c. If she could not see from this situation, the will is bad.

To construe the word situation to mean such a situation as the testatrix might have been in from change of place, will destroy the statute, and make any will good.

The witnesses might sign in a room below stairs, or in another house, and it may be said the will is good, because the testator might have removed from the situation in which he was, to such [**20]  a situation as might enable him to see.

But in this case, if the law was so, there was a physical impossibility of the testatrix's getting from her bed. See the evidence.

The cases of the curtain, &c. which says the testator might see, means in the situation he was in, and as it would be impossible to say whether he did or not, as he might see through the curtain, put it gently back, or remove a little the leaf of the screen, it has been determined from the almost impossibility of such negative proof, that the will was good.

But all the cases speak of the then situation of the testator, and none say, that if by moving to a different place he could see, though he could not where he was, that the will should be good.

The case in Bro. Ch. Rep. 99. proves this: the coach being put back so that the testatrix could, from her situation in the coach, see the office. But suppose the coach had not been put back, and she could not have seen from it, would the will have been good, under the idea that she might have so changed her situation by putting back the coach as to have been enabled to see. Why was the circumstance of putting back the coach mentioned, or material? Only [**21]  to show that by putting it back she might see in her then situation.

Ours is nearly a similar case. The judges of the general court were of this opinion, and so the chancellor mentions. He differs from them; but his reasoning does not amount to prove what the law is, (which is manifest from all the cases,) but to induce an opinion that the law ought to be altered so as to validate this will.

Though the chancellor has not expressed this, his reasoning in support of his opinion amounts to it. He has not cited a single authority to justify his opinion, though there is a cloud of them the other way.

The verdict finds the testatrix must have moved from her situation, or, in other words, that she could not have seen from the place where she lay.

The jury mistook the court's direction, and thought it applied to a power of seeing if she changed her place to another part of the room--to any part where she might see by going near enough. This, as before said, would make the statute of no effect. 1 Fonb. 183, 184.

Cooke, on the same side. The question: whether the will of Mrs. Lux was executed agreeably to the statute of frauds; that is, whether the attestation of the [**22]  witnesses was made according to the directions of that statute.

Four things are necessary to the validity of a will under the statute.

1. That it be in writing.

2. That it be signed by the party, or some other person in his presence, and by his direction.

3. That it be attested by three or more witnesses.

4. And that the witnesses subscribe, as such, in the presence of the testator.

These guards are established by positive law, and cannot be dispensed with. I will admit that where the transaction is fair and open, the court ought, and have leaned in favour of the will: and that in some instances they have given a construction to the meaning of the words of the statute, in favour of the intention of the legislature to support a fair will where it was not possible there could be any fraud or mischief arise from such construction. But those cases are plainly distinguishable from the present; and if this will is supported, one of the strongest guards imposed by the statute is wholly evaded and rendered of no effect.

Soon after the passing of the statute a question arose about what was a signing within the words of the law.

Stanly wrote his will in [**23]  his own hand, and upon a single sheet of paper: "I John Stanly," &c. put his seal, and it was subscribed in his presence by three witnesses. 3 Lev. 1. 1 Eq. Ab. 403. No fraud could possibly have happened. The statute did not say where he was to sign; at top, bottom, &c.

Suppose the will had been written by another? Suppose it had been written on several sheets of paper? Doug. 241. 3 Burr. 1775. 1 Burr. 549.

Sealing was at first thought a sufficient signing. 2 Stra. 764. But 1 Wils. 313. the court say they would determine otherwise. 2 Vez. 459.

The statute does not require sealing, but signing is indispensable.

Again, it has been a question, what is a sufficient attestation.

The statute does not expressly require a signing in the presence of the witnesses. Doug. 244. n. 3 P. Wms. 254.

It has therefore been held, that if the testator acknowledges it to be his hand-writing, it is sufficient, though the witnesses did not see him sign. 2 Vez. 454, 455. 3 P. Wms. 253.

But to acknowledge it to be his will, without acknowledging his hand, is not sufficient, because signing is essential. 2 Atk. 182. Doug. 244. Powell, 73.

In the first case the substantial [**24]  requisite of the statute is complied with, but without a possibility of fraud; in the last, it is not. But Holt held differently in the first case. Lee and Libb, Show. 68. 3 Mod. 362.

Other doubts have also arisen what is a subscribing by the witnesses in the presence of the testator.

Subscribing in his presence means within his view; Powell, 90. not that it is absolutely necessary he should see them subscribe; but he must be in such a situation as to be able to see them without changing his situation. Powell, 92.

It has been therefore held, where they signed in another room, where there was a glass door and the windows broke, and the testator could see them from the bed where he lay, it was sufficient. Salk. 688. Carth. 81. Eq. Ab. 403.

So where they went in another room and signed on a table, the door being open and the testator could see if he would. 3 Salk. 395.

So where the testatrix signed in her coach, and they went into a room to sign, and the coach was backed to the window so that she might see from the carriage. 1 Bro. Ch. Cas. 99.

The statute makes subscribing in presence or view essential. I am not bound to assign a reason why it ought to be [**25]  so. It is a positive regulation, and cannot be dispensed with no more than the signing by the testator, or that the will must be written. But perhaps it was intended to prevent interpolation, to prevent putting in other clauses, &c. The testator must be in such a situation that he may see. But if changing his position is necessary to enable him to see, it is void. Powell, 92. and cases cited, and 1 Bro. Parl. Cas. 137. 1 P. Wms. 741.

In this case it is said the testatrix might see if she had changed her situation But it is proved she was not able to move, and proved she could not see without moving.

If a subscription was up stairs, and the testator below, he might see if he would walk up; yet it will not be said such a will is good; still less if it was proved both his legs were broke, and he could not walk up if he would.

The door, it is true, was open, but the parties were quite out of sight. They might have interlined, or interpolated whole sentences, or even substituted another will, yet she could not have seen them.

If this can be allowed, there can be no reason why they might not have gone into another house.

Three witnesses are necessary to subscribe,  [**26]  yet we know if two only do so, though twenty others were present, and offer also to prove, it cannot be admitted. Yet in such case there could be no fraud. But if you break the express provisions of the statute in one instance, you may do it in all, and then all the mischief it was intended to prevent will return.

A. Robinson, for the appellee. A question arises whether the verdict on the issue tried in the general court is a complete verdict, and such as the court ought to have granted a certificate in favour of.

He contends that it is a complete verdict.

Every verdict is either general or special. Co. Lit. 226. b. A general verdict is where the whole matter in issue is found, e. g. guilty or not guilty, assumpsit or non assumpsit, or for the plaintiff or defendant, which is precisely the same as guilty or not guilty, &c.

A special verdict is where the jury find the naked facts as proved, submitting a question of law flowing therefrom to the court, praying their advice, and concluding conditionally, that if the court are of opinion that the plaintiff had cause of action, they find for him, otherwise for the defendant. 3 Bl. Com. 377.

If the jury find the fact,  [**27]  but conclude upon it contrary to law, the court may reject the conclusion. Hob. 222.

This verdict is inaccurate; but verdicts, being the words of laymen, are to be favourably construed, and not strictly, like pleadings; and if the court can collect the clear meaning of the jury from the verdict, they will work it into form. 2 Burr. 699, 700. Hob. 54. 1 Sid. 27. Carter, 80. If a verdict be found so ambiguously and uncertainly that no judgment can be given thereon, a venire facias de novo must be awarded thereon. Co. Lit. 227. a. If a jury find but a part of the matter put in issue, and say nothing as to the rest, a venire facias de novo will be awarded; Co. Litt. 227. a. or if the special verdict be imperfect, or does not take in the whole matter in issue, or the whole issue. 2 Ld. Raym. 1521.

In considering a special verdict, the duty of a court is to draw a conclusion of law from the facts found by the jury; the court cannot presume any facts from the evidence stated; presumption being a ground of evidence, but the court cannot presume any fact. Cowp. 92.

If the verdict find the whole that is in issue, and something more, the verdict is good. The maxim is utile per [**28]  inutile, &c. Co. Lit. 227. a. 5 Bac. 300. For example, issue whether I. S. died seised? jury find that he died seised, and a continual claim by J. M. The court will pay no regard to the continual claim of J. M. 5 Bac. 300, 301, 302. and Cases, 1 Leon. 67.

It is not sufficient for a jury to find either evidence or circumstances from which the court may very fairly infer the matter in issue. 5 Bac. 315. Vide reason plea 4th as in trover. Demand and refusal is not a conversion, but it is evidence thereof.

If a verdict find matter out of the issue, it is void for so much, though it concludes generally thereon, for or against plaintiff or defendant, 5 Com. 161. cites 1 Leon. 66. though the matter out of the issue destroys the plaintiff's title.

If a jury find a direct verdict for plaintiff or defendant, and add uncertain or contradictory matter, it will be considered as surplusage, and will not avoid or hurt the verdict. 5 Com. 168. cites 1 Leon. 92. Cro. Eliz. 480. 2 Saund. 308.

If a jury state the evidence on which they find the fact, it is surplusage, and will not vitiate the verdict. 4 Bro. Parl. Cas. 611. 615. argument of counsel.

Where a jury begin with a [**29]  direct verdict, and conclude with the special matter, or begin with the special matter, and conclude with a direct verdict, in both these cases the special matter shall make the verdict. Hob. Rep. 51. Vide 5 Com. 172.

The reasons of finding a verdict are not to be received or considered as part thereof. Vaugh. 150. Bushel's Case.

A special conclusion waives the special matter. 5 Com. 171. Vide Vin. Trial, 402. (X. F.)

If a verdict can by any construction be good, a construction to destroy it ought not to be received. Trials per Pais, 276.

In the present case the jury have found evidence and circumstances, viz. that Mrs. Lux might have seen, if she had made an exertion; that they find agreeably to the direction of the court: but they conclude with finding a verdict for the plaintiff, i. e. that Mrs. Lux did make and execute a paper, &c. in the words of the issue, and so such a verdict would be received.

It cannot be contended that this is a special verdict; 1st. The matter in issue, viz. whether Mrs. Lux made, &c. is not found specially; 2d. The jury do not find matter of fact only; 3d. Because the jury do not submit to the court any question of law flowing [**30]  from the facts; and, lastly, because they conclude with finding generally for the plaintiff; that is, that Mrs. Lux did make, &c. and such a general finding is precisely the same thing as if the verdict had been expressed in such words at length. If it had, the conclusion would be, that as she might have seen the witnesses sign, provided she had made an exertion, she did see them sign, and if admitted to be contradictory, (which it is not,) the former part would be rejected as surplusage. 5 Com. 168. 1 Leon. 92. Cro. Eliz. 480. 2 Saund. 308. Vin. 437. pl. 8.

It is incumbent on the defendants to show that the verdict is imperfect, and incomplete. The conclusion is a complete and perfect finding for the plaintiff; does the former matter control or destroy the general finding?

The verdict is agreeable to the direction of the court, and their direction (with the explanation) agreeable to law.

The statute of frauds and perjuries (sect. 5th) requires four circumstances in the case of a devise of lands:

1. That the will be in writing.

2. That it be signed by the testator, or some person in his presence by his direction.

3. That it be attested or subscribed by [**31]  three or four credible witnesses.

4. That it be so attested in the presence of the testator.

Although the statute requires these four circumstances to the validity of a will of lands, yet it has frequently been a question both in courts of law and equity what, in legal construction, was a compliance with these four requisites, e. g. the second solemnity.

Signing by the testator, in a few years after making the statute, was adjudged to be sufficiently gratified by the testator writing his name in any part of the will. 3 Mod. 219. Powell, 61, 62. Skinner, 227. Thus deciding that every case must turn upon its own circumstances, and giving the statute a liberal interpretation in favour of alienation by will, and giving the word "signing" a construction opposite to the received opinion and common sense of mankind, for it literally means "writing the name of the agent at the bottom of his act." In this determination, the analogy of the word signing, as to other instruments, was disregarded.

The third and fourth requisites called for by the act, are the attestation and subscription in the devisor's presence, by three or more credible witnesses, &c. The liberal construction [**32]  given by the courts to the word "signing," raised a question on the import of the word "attesting," as applied to the will:

1st. Whether the witnesses were to attest the very act of signing.

2. Whether an acknowledgment by the devisor that the act was done by him, and that it was his hand-writing, was not sufficient to enable the witnesses to attest; and it was held that the acknowledgment was sufficient. Powell, 72. 74. 3 Burr. 1773. 1 P. Wms. 253. 2 Vesey, 454. Nor is it necessary to subscribe or see all the sheets of the will. Esp. 468. 470. 3 Burr. 1775.

3. Whether the witnesses were to attest it at one and the same time, and held that they might at different times. Powell, 110, 111, 112. If the witnesses be all dead proof of their hand-writing good, though the attestation does not set out that they signed in testator's presence. Stra. 1109. Com. 531.

4. The next question was on the words "in the presence of the testator," and the courts held that "in the presence," was synonymous to "in the view;" that is, that it was in the power of the testator to see; that he might see, but not necessary that he should actually see. Esp. 470. 3 Salk. 393. Nicholas v. Smith.  [**33]  If it were possible to see the witnesses subscribe, if it be in the power of the testator to see what is done, it shall be construed to be in his presence; Powell, 92. 470. and a jury ought to presume in favour of the will; every presumption ought to be made by a jury, in favour of a will, when there is no doubt of the testator's intention. 3 Burr. 1775. If it be not possible to see, aliter. Esp. 471.

All these cases show that ever since the statute, courts of law and equity will lean in support of a fair will, and will not defeat it for a slip in form. Doug. 241. 3 Burr. 1775.

Whether witnesses attest in the testator's presence, is a fact for the consideration of the jury under all the circumstances of the case. Powell, 98. Stra. 1109. Com. Rep. 531.

The rule that if a testator might see, and that if it was in his power to see, is a rule of presumption of evidence, and not of law, and every presumption of evidence or of law must stand donec probatur in contrarium. 2 Bro. Ch. Cas. 516, 517. Under this idea, when proof is offered that it was in the power of the testator to see, the jury may, and ought to, conclude he did see, 3 Burr. 1775. but when it is proved it was [**34]  not in his power to see, the conclusion fails. The cases of curtains drawn, turning his back, and shutting his eyes, all turn upon these principles. The cases are 2 Salk. 688. Shiers v. Glascook. Carth. 81. Comb. 158. 3 Mod. 259. 12 Mod. 37. 3 Salk. 395. Esp. 471. If not possible to see the witnesses, the will is void. Carth. 79 Comb. 156. Holt, 222. 1 P. Wms. 239. 790. 1 Bro. Rep. 91. Doug. 231. 1 Bro. Parl. Cas. 137.

If the verdict be complete and according to the direction of the court, and that direction according to law; or if contrary to the direction, if according to law, there is no ground for a new trial. It cannot be contended that the verdict is against evidence, but only that it was against the weight of evidence. The weight of evidence, when witnesses are examined on both sides, depends in a great measure upon the credit of the witnesses, of which the jury, and not the court, are the only judges. 5 Bro. Parl. Cas. 152. or 192.

If the court, by their explanation of their opinion, intended that Mrs. Lux ought to have had it in her power to see the witnesses attest from her position in bed, it is not law, nor supported by any case cited by Powell, but clearly the [**35]  contrary; all the cases show that it is sufficient, if from the place, or chamber, or room, the testatrix can see.

As to granting a new trial, it is discretionary with the court, and depends upon the peculiar circumstances of each case. It may be granted for a mistake of the judge, or for the misbehaviour of the jury, and in finding contrary to the direction of the court in point of law. 1 P. Wms. 213. For finding a general, when directed to find a special verdict, or for finding contrary to evidence, with this exception, unless it is a hard action; 5 Bac. 254. or the justice of the case does not require a new trial, (as in the present instance,) or for finding contrary to the weight of evidence, but very seldom in this instance. See 5 Bac. 246. 5 Com. 150. for the last instance. 1 Wils. 22. 3 Wils. 45. 47. 59. 272. 2 Bl. 851. 2 Wils. 306. 2 Cromp. 328, 329. Doug. 249. 2 Morg. Essays, 52. 67, 68, 308. 2 Wils. 38, 39. 45.

S. Chase, on the same side. This case comes before the court of appeals, on an appeal from a final decree of the court of chancery on the equity reserved.

Moor Falls (the appellee) filed his bill against Lux and Russell, (the appellants,) to establish [**36]  the will of Catharine Lux, wife of George Lux, under a power given her by deeds legally executed. An issue was directed by the chancellor, "Whether Catharine Lux made and executed a paper, purporting to be her last will and testament, on the 18th of September, 1789, in the manner, and according to the directions of the statute of frauds and perjuries." On the trial, only one objection was made to the due execution of the will, to wit, "that the will of Mrs. Lux was not attested and subscribed by the witnesses in her presence." The jury returned a verdict in the following words: "That the jurors are of opinion, from the evidence, that the testatrix, Mrs. Lux, might have seen the witnesses sign her will from the room wherein she lay, provided she would have made such an exertion, and, therefore, agreeable to the directions of your honours, find a verdict for the plaintiff."

It is admitted that the general court gave the direction to the jury mentioned in the certificate of the judges, and that the judges afterwards gave the explanation stated in their certificate; it is not admitted that the evidence is accurately stated. It is admitted that the general court appointed to hear a [**37]  motion for a new trial at the next term; that before that term, the chancellor took up the cause on the application of Moor Falls, (the appellee,) on producing a transcript from the clerk of the general court of the proceedings in said court; and that the chancellor did not grant a new trial, as requested by Lux and Russell, (the appellants,) and that afterwards the chancellor decreed in favour of the will; and from this decree Lux and Russell appealed.

It is contended on the part of Moor Falls, (the appellee,) that the court of appeals are not to take any, the least notice of the direction of the general court, or of their explanation of their direction to the jury; or of the certificate of the judges, and their state of the evidence; or of the application to the chancellor for a new trial, and his refusal to grant it, for the following reasons:

1. Because the direction of the court is not according to the law, and the verdict of the jury is agreeable to it; that the direction of the court, with their explanation, is contrary to the law; that the chancellor was not bound by the opinion of the court as to the law, but if he thought they were mistaken in the law, (as they [**38]  certainly were,) he was obliged in duty to decree as the law appeared to him.

2. Because the evidence might appear different to the jury from what it did to the court.

3. Because the rule, (Powell on Devises, 92.) that if the testator might see the witnesses, or if it was in his power to see them, that what they do shall be construed to be done in his presence, is a rule of presumption of evidence, and not a presumption of law, and this presumption of evidence the jury might properly make in a fair and honest transaction, (as the present case,) when the court might not make the same presumption. Vide 7 Bro. 272.

4. Because there was no appeal from the refusal of the chancellor to grant a new trial, but only from his final decree.

If the court of chancery grant a new trial, an appeal will lie from such order. 4 Bro. 614. 3 Bro. Parl. Cas. 220. 5 Bro. 191. 7 Bro. 208. 215. 271. Or if the court refuse a new trial. 6 Bro. 442. 7 Bro. 9. 522. 243.

Issue directed, motion for a new trial refused, and decree and appeal. 7 Bro. 244. It was argued that the party should have appealed from refusal of new trial, instead of proceeding to hearing of the cause. 7 Bro. 505.

An [**39]  issue directed and verdict not a literal answer to the issue, and no application for a new trial, and a decree that the will be established, and the trusts thereof be performed, and the appeal from the decree dismissed. 7 Bro. 511.

If the verdict was contrary to law it could only be set right by a new trial, to be granted by the chancellor, and as he refused to grant it on the application of the appellants, they ought to have appealed from such refusal, and have now by their own neglect lost the benefit of such objection. As the appeal is only from the final decree on the equity reserved, the only question that can arise properly is this, whether the decree is erroneous or not? The decision of this question must depend on this other consideration alone, whether the verdict is complete, and answers the issue directed? or, in other words, whether the verdict found that the will of Mrs. Lux was duly executed in the manner required by the statute of frauds and perjuries? It is immaterial whether the verdict was contrary to the direction of the general court, and their explanation, even on the admission that they were according to law, because, if the verdict was contrary to the law,  [**40]  it could only be corrected by a new trial, which the chancellor only could grant or refuse. Under this impression it will only be necessary to show that the verdict was complete and perfect, and answers the issue. Every verdict is general or special. Co. Lit. 226. b. A general verdict is where the whole matter in issue is found generally, e. g. as guilty or not guilty, assumpsit or not assumpsit, or for plaintiff or for defendant, which is precisely the same thing as guilty or not guilty, &c. &c. A special verdict is when the matter in issue is found specially, e. g. where the jury find only the matter of fact, and submit some question of law arising on the fact to the court. In a special verdict the jury state the naked facts as they find them to be proved, and pray the advice of the court thereon, concluding conditionally, that if, upon the whole matter, the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, for the defendant. 3 Bl. Com. 377.

If a verdict finds the whole that is in issue, and something that is not in issue, the verdict is good. The maxim "utile per inutile non vitiatur" applies. Co. Lit. 227. a.  [**41]  5 Bac. 300. Instances put e. g. issue whether I. S. died seised? Jury find that he died seised, and a continual claim by J. N. The court will pay no regard to the finding of the claim by J. N. 5 Bac. 300, 301. which cites a case in Dyer, 372. 5 Bac. 302. cites Cro. Car. 130.

It is not sufficient for the jury to find either evidence or circumstances from whence the court may very fairly infer the matter which is in issue. 5 Bac. 315.

If the jury find a direct verdict for plaintiff or defendant, and add uncertain or contradictory matter, it will be considered as surplusage, and will not avoid or hurt the verdict. 5 Com. 168. cites 2 Roll. 695. C. 5. 15. and 35. 1 Leon. 92. Mo. 431. Cro. Eliz. 480. Cro. Car. 76. 130. 174. 2 Saund. 308. Sav. 112. 21 Vin. tit. Trial, 436. pl. 1. 437. pl. 8. 10. 14. 438. pl. 15, 16. 18, 19.

If a jury state the evidence on which they find the verdict, it is surplusage, and will not vitiate the verdict. 4 Bro. Parl. Cas. 611. 615. argument of counsel.

A special conclusion waives the special matter. 5 Com. 171. cites 2 Roll. 690. C. 20. see Cro. Car. 212. Vide Vin. Trial, 402. (X. F.)

If a verdict may any ways be construed good, a construction [**42]  to destroy it ought not to be made. Tri. per Pais, 276.

In the present case the jury have found evidence and circumstances, viz. That Mrs. Lux might have seen the witnesses sign, provided, &c. but they conclude with finding a verdict for the plaintiff, i. e. that Mrs. Lux did make and execute a paper, &c. in the words of the issue, and so such a verdict would be entered. It is impossible to contend that the verdict is a special verdict; 1. Because the matter in issue, viz. whether Mrs. Lux made, &c. is not found specially.

2. Because the jury do not find matter of fact only.

3. Because the jury do not submit any question of law arising on the fact to the court; and,

Lastly, because they conclude by finding generally for the plaintiff; that is, that Mrs. Lux did make, &c. and such general finding is precisely the same thing as if the verdict had been expressed in such words at length: if it had, such conclusion would be, that as she might have seen the witnesses sign, provided she had made exertion, that she did see them sign; and if admitted to be contradictory, (which it is not,) the former part would be rejected as surplusage. It is incumbent on the appellants [**43]  to show that the verdict is imperfect and incomplete. The conclusion is a complete and perfect finding for the plaintiff. Does the former matter control or destroy the general finding? The verdict is agreeable to the direction of the court, and the direction of the court, without the explanation, was according to law. But if the court consider it proper, on the present appeal from the decree, to pay no regard to the verdict of the jury, and to determine whether, from the evidence stated in the judges' certificate, and the circumstances found by the jury, the will of Mrs. Lux was attested and subscribed by the witnesses in her presence, the appellee considers that the evidence well justifies the conclusion that Mrs. Lux's will was attested in her presence. It is admitted that the finding of the jury in favour of Moor Falls, the plaintiff, was not, in the opinion of the judges of the general court, warranted by the evidence. The chancellor was of a different opinion, and he was ultimately to decide the law. The following facts were admitted by the answer of Lux and Russell, and also on the trial.

1. That the will was in writing.

2. That it was signed by Mrs. Lux.

3. That [**44]  it was attested and subscribed by three credible witnesses.

The only fact in controversy on the trial was, whether the will was attested and subscribed by the witnesses in the presence of Mrs. Lux. The evidence as to this fact was, 1. That after Mrs. Lux executed her will, the witnesses, for the convenience of subscribing the will, went into a room on the same floor, which adjoined that in which Mrs. Lux lay, very ill and very weak on a bed, when the witnesses left the room; that the door leading from the one room to the other was open from the time the witnesses went out of Mrs. Lux's room until after they attested the will, and returned in a few minutes.

2. That Mrs. Lux could not see from the bed, laying on it, the witnesses when they subscribed her will.

3. That there is no evidence that Mrs. Lux moved from the place in her bed in which she lay, when the witnesses left the room.

4. That Mrs. Lux might have seen (or that it was in her power to have seen) the witnesses when they subscribed her will, from the room in which she was, if she had made an exertion for that purpose.

5. That the will, immediately after it was attested, was returned to Mrs. Lux by [**45]  Mr. Russell, the trustee in the will. It is contended by the counsel for the appellants, that it was necessary that Mrs. Lux, at the time of the attesting the will by the witnesses, might have seen them without changing the position; that is, without changing the situation of her body from the place she lay in the bed. The counsel for the appellee contend, that it is sufficient, if it was in the power of Mrs. Lux to have seen the witnesses when they subscribed her will, from the room in which she was, although she did not actually see the witnesses at the time. The requisites prescribed by the statute of frauds and perjuries, is the attestation of the witnesses in the presence of the testator; but there is no precise definition in any of the law books, of the word presence.

The statute of frauds and perjuries (s. 5.) requires four circumstances in the case of a devise of lands; 1st. That the will be in writing; 2d. That it be signed by the testator, or by some person in his presence, and by his direction; 3d. That it be attested and subscribed by three or four credible witnesses; 4th. That it be so attested in the presence of the testator.

Although the statute has rendered [**46]  these four circumstances necessary to the validity of a will of land, yet it is frequently a question in courts of law and equity, "where in legal construction these requisites have been complied with," e. g. The second solemnity required by the statute is that the will be signed by the testator. In a few years after making the statute, (33 Car. II. See Eq. Ab. 403. 409. 3 Mod. 219.) doubts were entertained as to what the legislature meant by the word signing; whether it should be construed in its strict sense, and by analogy to other instruments, or whether it should be liberally expounded, and left open as a question of construction upon intention to be inferred from the facts and circumstances attending each particular case. On the latter principle courts of law put a liberal construction on the word signing by the testator, and held that the name of the testator being written by himself in any part of the will was a sufficient signing within the statute. Powell, 61, 62. This construction upon the word signed was apparently contrary to the natural import and received interpretation thereof. The word signing is a mere simple idea, viz. the writing the name of the agent at the bottom [**47]  of the act. This construction was to favour alienation by will. The third and fourth solemnities required by the statute are the attestation and subscription, in the presence of the devisor, by three or more witnesses. The liberal construction which the courts put upon the word signing necessarily raised a question upon the import of the word attesting, as applied to the will. 1st. Whether the witnesses were to attest the very act of signing, or whether an acknowledgment by the testator that the act was done by him, and that it was his hand-writing, was not sufficient to enable the witnesses to attest; and it was held that the acknowledgment was sufficient. Powell, 72. 74. 3 P. Wms. 253. 2 Vez. 454. 2d. Whether the witnesses are to attest and subscribe at one and the same time? and held that it might be at different times. Powell, 110--112.

3d. The next question was on the words "in the presence of the testator;" and the courts held that in the presence was synonymous to within the view; that is, that it was within the power of the testator to see; that he might see, but not necessary that he should actually see. Salk. 688. Carth. 81. 1 Eq. Ab. 403. Powell, 90. 3 Salk. 395. Nicholas [**48]  v. Smith. If it was possible for the testator to see the witnesses subscribe--the rule is, if it is in the power of the testator to see the witnesses, what is done shall be construed to be done in his presence. Powell, 92. If not possible, aliter. See cases put, Powell, 92. (bottom) 93, 94. All these instances show that ever since the statute, the courts of law and equity will lean in support of a fair will, and not defeat it for a slip in form, where the meaning of the statute has been complied with. Powell, 97. Doug. 241. Whether witnesses attest in the presence of the testator, is a fact for the consideration of the jury upon all the circumstances of the case. Powell, 98. Com. Rep. 531. Characters of witnesses is one circumstance. The rule that if the testator might see, or that if it was in his power to see that the act was done in his presence, is a rule of presumption of evidence, not a presumption of law, and every presumption of evidence or law must stand donec probatur in contrarium. 2 Bro. Ch. Cas. 516, 517. Under this idea, when proof is offered that it was in the power of the testator to see, the jury may and ought to conclude that he did see; but when it is proved that [**49]  it was not in his power, the conclusion fails. The case of curtains drawn, turning his back, shutting his eyes, &c. &c. all turn on this principle. All the cases are, 2 Salk. 688. 1 Eq. Ab. 403. pl. 8 cited Carth. 81. Comb. 158. and 3 Mod. 359. 12 Mod. 37. 3 Salk. 395. Esp. 188. If not possible for the testator to see the witnesses subscribe the will, it is void. Carth. 79. S. C. Comb. 156. 1 Show. 89. Cases temp. Holt, 222. 1 P. Wms. 239. 740. 2 Show. 288. 1 Bro. Rep. 91. Doug. 241. 1 Bro. Parl. Cas. 137. It is not law that Mrs. Lux ought to have it in her power to see the witnesses attest her will, from her position in bed, nor supported by any one case cited by Powell on Devises, from 93--100. inclusive, but directly the contrary, if the cases are carefully examined. All the cases show that it is sufficient if from the place, or chamber, or room, the testator can see the witnesses when they subscribe his will. Powell on Devises, 92. says, "Though the signing be in a room or chamber immediately contiguous, yet the devise will be void, unless the testator is in a position in which he can, if he please, without changing his situation, see the witnesses subscribe," and cites cases to [**50]  maintain this opinion. What Mr. Powell meant by the testator being in a position to see the witnesses subscribe without changing his situation, can only be ascertained by examining the authorities to which he refers, and none of them justify the argument of the counsel for the appellants, (or the opinion of the general court,) that the signing of the witnesses in a room, communicating with the room in which the testator might stand, set in a chair, or lay in a bed by a door which remained open during the transaction, shall not be good, but the will void, unless the testator might have seen the witnesses when they attested the will, without moving from the spot where he stood, sat or lay. The case most applicable to the present is that of Davy & Nicholas v. Smith, 3 Salk. 395. and cannot be distinguished from the case before the court, either in facts or principle.

Martin, (Attorney-General,) on the same side. In addition to the observations of the counsel who last addressed the court, I would add a few both as to the facts and the law.

First as to the facts. The judges of the general court's certificate doth not state the facts correctly. It was made out some time after the [**51]  trial. There was no previous communication between them and the appellee's counsel, for the purpose of refreshing their memories, and settling the evidence.

The witnesses who conceived that Mrs. Lux, from her position in bed, could not see them sign the will, spoke only from their general idea and recollection, at that distance of time, of the place where the bed stood, and where the table or desk stood, and not from any observations made by them at the time when the will was signed, to discover whether she could see them, as they declared; for they declared they did not know it was necessary she should be able to see them.

A small difference as to the places of the bed or the desk from their ideas, might make a material difference as to the one object being visible from the other.

When Richardson Stewart made the experiment mentioned by him, the bed was standing close to the walls; but nothing is more probable than that Mrs. Lux's bed was removed at some distance from the adjacent walls, for the convenience of the nurses and servants having access to her for different occasions; also Mr. Stewart had no knowledge where the bed or the desk were at the time of the signing,  [**52]  except by the information of Mary Chambers, who could, and did only, speak from her general recollection of circumstances which had long passed, and which were not then supposed, or attended to as material.

In opposition to the idea which the witnesses had of the extreme weakness of Mrs. Lux, which had induced one of them to think she could scarce write her name, the original will, which was before the jury, showed that she had written her name fairly, and with a steady hand, without any marks of such imbecility.

It appears also from the evidence, as stated by the court, that Mr. Russell, a judge of the orphans' court, long in the habit of receiving the probate of wills, and perfectly and familiarly acquainted with the necessity of its being signed in the presence of the testatrix, was the person whom Mrs. Lux confided in, as her particular friend, to have her will properly prepared and executed, so as to effect such dispositions as she was anxious to make; that he directed Mr. Johnston to draw it; when drawn, received it from Mr. Johnston, and with an apparent zeal undertook the whole charge of the execution. He was the person who took the witnesses into the adjoining room [**53]  to sign the will; the will itself, as appears now on the record, in the form of the attestation, written thereon, states its being signed in the presence of the testatrix. Independent of his familiar knowledge of that circumstance being necessary, the form of the attestation of the paper, then in his hand, pointed out the necessity, and could not but have refreshed his memory; the judges' notes of the evidence show that he appeared very particular in pointing out the witnesses to sign in the presence of each other; can it be presumed he was less attentive to a circumstance so much more essential? It must be supposed he took care to observe that the desk was in such a relative situation to the bed, that the testatrix might see them; that the door was left open (for it was left open) in order that it might be in her power; and that although the other witnesses, not knowing it was necessary, did not attend to that circumstance, he, who knew the necessity, and who had undertaken to have the will properly executed, did attend to it. The will must, in this respect, have been well executed, or we must suppose he intentionally abused the confidence of Mrs. Lux in what might have been almost [**54]  her last moments; and while he was ostentatiously professing to serve her, was privately defeating every anxious wish she had formed, intrusted to him, and which he had engaged to fulfil.

The execution of the will having been under the superintendance of Mr. R. and under such binding and confidential circumstances, is, to the human mind, a million of times stronger proof that it was duly executed, than the vague ideas of the witnesses as to the relative positions of the bed, &c. and this was proper for the jury to consider, and was strongly urged.

In Com. Rep. 531. the witnesses to the will were all dead. The attestation did not state that it was signed in the presence of the testator. The court determined it was proper to be left to the jury; and one of the witnesses to the will having been a lawyer of good character, and, therefore, likely to know the necessity, and to see to the due execution of the will, is urged as a circumstance which ought to have weight.

Our case is infinitely stronger under all the circumstances; ours is a judge of the orphans' court, well knowing the necessity, in the constant habit of taking probates of wills, and peculiarly confided in, and [**55]  employed by one who considered him as her particular friend, to see every thing necessary and proper done to effect her last wishes.

As to the law. It is solemnly determined, and that by decisions soon after the statute of frauds, that it is not material whether the testator doth see the witnesses write their names, and so the court declared in this case.

The appellants rely on the position in Powell at the bottom of p. 92.

"But though the signing be in a room or chamber immediately contiguous, the devise will be void unless the testator is in a position in which he can, if he please, without changing his situation, see the witnesses subscribe."

The law is so; but all that is necessary is to determine what is meant by changing his situation.

The man who is in bed, with curtains closely drawn, by opening the curtains might see the witnesses. The man who is sitting in the room with his back towards the table, by turning round might see; where a screen happens to be intervened between the testator and the witnesses, the testator by removing a little the one way or the other might see, but in all these cases, in a strict sense of the word, a change of situation [**56]  is necessary.

The court by their explanation have declared that the person must be able to see the witnesses sign, without any change of position, meaning, if I can conceive their meaning, that there must be no change in the local position of the body of the testator, or any part of it; for if they will allow it in any part, it may be curious to know in what part; and if they will allow it in no part, then the opinion given is a felo de se, for, on such a construction, it would be impossible that the person should not see, provided he could see; since to see an object which in any position is not seen, must require a change of the position of the body, or some part of the body. But perhaps the court means the testator might turn round; yet this would be a change of his position. Perhaps they would let him stretch forward his neck to see; in that case there would also be a change of position, and it would also make the validity of a will depend on the length of a man's neck. Perhaps they only mean that the testator's feet shall remain firmly fixed to the spot, but to give him leave by every exertion of body, to project his head as far as possible in any directions to see the witnesses;  [**57]  in that case a tumbler would have a better chance than another in similar circumstances, because he might project his body its full length, and, by a dexterous spring, recover his former position; and a man six foot long would have three chances that his will should be duly executed, where a man of four foot long would have but two, provided their dexterity was equal.

To my conception there never was a more absurd opinion given, nor more contrary to the true meaning of the passage cited from Powell.

As the position which was the groundwork of their opinion is taken from Powell, it is but fair that Powell should illustrate and explain it, which, in the following pages, he doth, and refers to a variety of cases. In explanation of this position, and to show what he means by that change of situation which is inadmissible, he goes on immediately in the following words: "Thus where, on a trial at bar," &c. and puts a number of cases, all which prove that by a change of situation, he means the testator must be able to see without leaving the room, the coach, the chamber, &c. in which he is at the time, and not that he must be able to see without leaving the particular spot in the [**58]  room, the coach, or the chamber, &c. which he might occupy.

In the first case put, the will was signed by the testatrix in the bedchamber, the witnesses signed in the hall; to go to this hall they had to go into a passage, and to go down a flight of eight or ten winding stairs. The rooms were on different stories of the house, and no possibility of seeing from the bedchamber what was doing in the hall below. The case is express that it was "not possible from her chamber to see what was done in the hall;" it is not said from the place where she sat or lay in her chamber. There was also positive proof that the testatrix did not leave her chamber.

So the next, the will was signed by the witnesses down stairs in another room, consequently, could not be seen from the room where the testator was.

In the third case from Shower, the court and counsel thought it a proper case for a special verdict, but the jury there obstinately found against the will, for which they are censured in Shower.

The statute of frauds was passed in the 29th of Charles II. The case in 2 Shower was in the 35th Charles II. This was the first case after the statute in which this point came in question.  [**59]  The court and counsel wished for a special verdict, that it might be considered and the law settled. But the jury finding a general verdict against the will, and persisting therein, was in that case conclusive.

The next case was that of Shiers and Glascock, Powell, 91. which was about four or five years after, to wit, the 3 Jac. II. There the court settled the principle, and the decisions have been consonant ever since. There is reason to believe had a special verdict been found in the case in 2 Shower, the court would have decided in favour of the will.

In the case of Shiers and Glascock, the witnesses went out of the room, passed through a lobby into a gallery; this lobby had glass doors and some panes broken; the case states that the testator might have seen from his bed, through the lobby and the broken glass, the table where the witnesses subscribed. It is not stated that he could see from the part of the bed where he then lay, or that, in the position he then lay, he could see without changing it; indeed, from the description, it is almost impossible that, laying horizontally on the bed, and without raising himself up therein, he could have seen the table, much less [**60]  persons writing upon it; it is certain he could not see the paper in any manner so as to know its identity.

In the case of Davy v. Nicholas, 3 Salk. 395. Powell, 91. the witnesses left the room, went through a small passage into another room, and signed it on a table standing in the middle, and opposite the door; both doors were open. The case states as a material circumstance, that the table stood opposite the door, for otherwise, as there was an intervening passage, the testator could not have seen them from his room. But the case doth not state, nor was it necessary, that the bed of the testator was opposite to the other passage door, or that from the bed, or while the testator lay thereon, he could have seen the witnesses sign.

The case of the lady who signed her will in the coach, Powell, 92. the witnesses returned into the lawyer's office to sign it; her coach having been put back opposite the window of the office, and it being proved by a person in the coach that the testatrix might have seen what passed, it was sufficient. No proof in this or the other cases, no pretence that she did actually see; no proof that she could have seen from the particular part of the coach [**61]  on which she was seated. But if she might have seen from the coach it was sufficient. The coach necessarily put back to bring it into a situation similar to the case of a room or chamber.

The one or the other must have a certain relative situation to the place where the witnesses sign, so that from the coach or from the room, &c. they might be seen.

Our case is stronger than either of these three. In ours, the witnesses signed in a room immediately adjoining, on the same floor; the door wide open. In each of the other cases, some intervening space between the room of the testator and the room where the witnesses signed.

The design of the statute was, that a false will may not be palmed on the witnesses, or on the testator. In going from the bedroom through the lobby into the gallery, in the case of Shiers v. Glascock; from the bedroom through the passage into another chamber, in the case of Davy v. Nicholas, and from the coach into the lawyer's study or office, in the case of Casson v. Dade, afforded as much opportunity for interposing a false will as there could possibly be in the present case; nor could those who made the respective wills in those cases, possibly,  [**62]  from any view they could have had, been more capable of distinguishing the identity of the paper signed, than Mrs. Lux in our case. Yet the courts there, satisfied the transactions were fair, held the statute of frauds sufficiently complied with.

Here is no possible doubt but the will is genuine; that is admitted by all; Mrs. Lux signed it; but a few moments intervened for the attestation; it was instantly brought back and delivered into her own hands, and all this under the immediate view and direction of her friend and confidant, who would prevent all imposition. And Lord Mansfield, in Douglas's Rep. 241. Powell, 97. declares, when a will in other respects has been fairly and duly executed, its not being witnessed in the presence of the testator is but "a slip in form," and the court will not defeat it, in any case where there is a measuring cast, and room for presumption.

In fine, it is admitted that in our case the meaning of the statute has been fully complied with. A slip in form has been alleged. The chancellor might have himself decided on the evidence; or might have sent it to a jury to satisfy his conscience. He did the last. The question was fully investigated.  [**63]  The jury found the will duly executed as to its being signed in the presence of the testatrix. They had evidence from which they had a right, and they ought to have presumed it, in favour of a will admitted in all other respects to be duly executed. Their finding, and the evidence, was consistent with the law, as originally declared by the court; as the court explained their opinion, that opinion was erroneous and absurd.

The chancellor was satisfied with the verdict, both as to law and fact. His conscience was satisfied. It would have been absurd to have granted a new trial, when, upon the facts, as disclosed, and the law, as by him rightly understood, the verdict was proper. But, if the appellants wished to have had a new trial, they ought not to have gone to final hearing, but have appealed for that cause. Had they even then appealed, I am satisfied the consciences of the judges of the court of appeals would have been as well satisfied as was the chancellor's, and that they would have thought a new trial as unnecessary as the chancellor did; and that now they will sustain a conscientious and equitable decree, carrying into execution a will fairly and honourably executed, by [**64]  a most amiable worthy lady, having a perfect right to make the disposition she made; a disposition which from many motives she was induced to make, and whose last moments would have been embittered, could she have supposed it would have been contested.

Cooke, in reply. In this case the chancellor might, if he pleased, have proceeded to the issuing a commission, and have brought the whole testimony before him in the first instance, upon which a decree might have passed. And upon such proceeding, an appeal, it is certain, would lay, and this court, having the evidence before them upon which the decree was founded, might certainly revise the case, and either affirm, reverse, or alter the decision as they should think justice required. But the chancellor has thought proper to order an issue to be tried to ascertain whether the will was executed in the manner and according to the directions of the statute of frauds. Upon the trial of which issue, a bill of exceptions was taken, upon which the whole evidence given is stated, and upon which the judges of the general court have given their directions, also stated, to the jury; a verdict was found, which is also stated, a motion for a [**65]  new trial, and the rejection thereof, and final order and decree of the chancellor. And the defendants' objection is, that this court ought not to take notice of any of these facts,

1st. Because the chancellor was not bound by the direction of the court to the jury, nor by their opinion of the law.

I admit it. But the chancellor is as much bound by the law as the general court were, and if he has erred in his judgment, this court ought to correct his decision. But how is this court to know whether he erred or not, unless the evidence is before them? That evidence is now brought forward, and this court is no more bound by his opinion than he was by the opinion of the judges. They will respect the opinion of both; but judge for themselves from the evidence given; from the facts the law arises.

2d. Because the evidence might appear different to the jury than to the court.

That is impossible. The evidence given to both was the same, and must appear the same. The jury might draw conclusions of fact from the evidence, but ought not of law; if they do, and it is erroneous, the court ought to correct it. The court do so at law, by setting aside the verdict, and granting [**66]  a new trial, and may do so in chancery, by decreeing according to the evidence, where it is brought before the court stated upon a bill of exceptions; or of ordering a new trial, if from the report of the judge who tried the issue, he was dissatisfied with the verdict. But if the chancellor refuses a new trial, and proceeds to a decree where the evidence is made part of the proceedings, this court, having all the facts before them, may certainly correct any errors in that decree; but if no evidence is returned, and the chancellor refuses a new trial on motion, if the party does not appeal, but acquiesces in that determination, and go on to a final hearing, this court would not probably have any evidence before them to show what the facts were but the verdict, and if it was a general verdict, it would show no facts at all upon which this court could act to correct errors which did not appear upon the general equity of the case. Our case, however, is quite otherwise; all the facts do appear, and if there has been error in law, or fact, this court must correct it.

Suppose a special verdict is found, upon which the chancellor decrees, will not an appeal lie from his decision? There [**67]  can be no doubt of it, and this court would correct such decree if erroneous.

Suppose the jury state the facts, and draw an erroneous conclusion in law, will not the court correct it? But if the facts are stated on a bill of exceptions, has not the court the same power? It would be strange, indeed, if they had not.

3d. Because the fact, it is said, whether the testatrix could see the witnesses, is a presumption of evidence, and not of law, and this presumption the jury have a right to draw, and might do it different from the court.

Whether the testatrix did see or not, is certainly a presumption arising from evidence; but that she must be in a situation to be able to see without changing her position is the declaration of law; otherwise, to say that if she had changed she might have seen, as the jury have said in this case, is in fact to defeat the law altogether; for a person might see if the witnesses had gone into another house, and she would have followed them. But to say that if she had changed she might have seen, is a negative strongly implied that as she did not change, she could not see. But we add, further, there is proof she could not change, and, therefore,  [**68]  she could not see.

4th. Because there ought to have been an appeal from the refusal to grant a new trial.

All the cases cited to this point are very far from being similar to the case now before the court; most of them are cases where he chancellor ordered a new trial, (7 Bro. 272. 4 Bro. 614. 3 Bro. 220. 5 Bro. 191. 7 Bro. 208.) and that order was appealed from. In most of these cases the judge and the chancellor were of the same opinion as to the verdict, and in no instance was there a verdict given against the opinion of the judge upon any point of law, nor in any instance cited any bill of exceptions stating the evidence. These, too were all cases of simple facts before the jury, and general verdicts given.

The other cases cited, (6 Bro. 442. 7 Bro. 9. 243. 522. 505.) are cases where a new trial was refused; but in all of them there were further orders and decrees made, merely on the refusal to grant a new trial. Upon a motion for new trial, if it is refused, there is no order or decree made, and, consequently, no appeal could lie on the mere refusal; but if the chancellor then goes on to make an order, or decree, on the merits, there may be an appeal, and upon that [**69]  appeal the propriety of refusing the new trial in the cases cited was argued.

In one case, (7 Bro. 243.) in the argument of counsel, it is said that the party ought to have appealed from the refusal to grant a new trial, and that, as he acquiesced in that refusal, and was satisfied with it, it was too late to object to the verdict on an appeal from the decree on the final equity. But in that case, both the judge, who tried the cause, and the chancellor, were satisfied with the verdict, and there is nothing in the case to show that the decree was affirmed, because the party omitted to appeal when a new trial was refused.

I have carefully examined, and there is no dictum in any book, which says the objection against the verdict will not lie upon an appeal from a decree on the merits, and I add, it is impossible the law should be so, if it appears upon the record what the evidence was upon which that verdict was given.

Because it appears there has been appeals in cases where, by an order of the court, a new trial was granted, and where it has been refused, and another order made, as in the case now before the court, (see 7 Bro. 9. 505. 6 Bro. 442.) does that prove that [**70]  no objection will lie to the verdict upon an appeal from the final decree? Why was not that objection made in 7 Bro. 9. 505. and 6 Bro. 442.? In those cases, upon an appeal on subsequent orders, the house of lords rectified the order respecting a new trial.

It is said this is a general verdict, and that the jury having stated the evidence was surplusage, and ought to be rejected. But I differ widely from this assertion, and think the law quite the contrary; for if a jury state the facts, and draw a wrong conclusion, the court will set aside the verdict in all cases.

But I care not whether this was a general or a special verdict. It was taken merely to satisfy the conscience of the court. The court was not bound by it if the verdict had been much more general, but might have decreed even against the verdict. The court could be under no restraint to do so, after the whole evidence was returned to the chancellor. Nor can this court be restrained, having fully the means of judging upon the whole case whether the jury or the chancellor erred upon the subject.

If the chancellor was not concluded by the verdict, but might have directed a new trial, or even decreed against it,  [**71]  certainly this court, knowing the facts, may do the same, or they have not the power of doing complete justice.

It is, then, only to be considered whether this will was executed as the statute of frauds directs. To this point I refer the court to my former argument; and, I think, dispassionately considered, the case will not admit of a doubt. If this court should think so also, their decree must be generally to reverse the final decree of the court of chancery.

Jenings, S. Johnston and Cooke, for the appellants.

The Attorney-General, Pinkney and Robinson, for the appellees.  

OPINION:

 [*500]  The decree of the Court of Appeals.
After hearing counsel on this appeal, ordered and adjudged, that the aforesaid decree, so by the said chancery court made and decreed, be reversed and annulled; and we do order and decree, that another trial be had therein before the judges of the general court upon the same issue; and it is further ordered by the court here, that a copy of this decree be transmitted by the clerk of 

 [*501]  this court to the court of chancery, that the chancellor may cause justice to be done in the said suit between the said parties according to the [**72]  tenor hereof, and the course of the said court; and that the court of chancery give all necessary directions for carrying the above into execution.  

31 of 37 DOCUMENTS 

Richard Owings against Peter Wyant.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 393; 1795 Md. LEXIS 8 

October, 1795, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action on the case against the defendant, being an innkeeper, for goods lost in his house belonging to the plaintiff, then his guest. (See the declaration in 1 Harris's Entries, 460.) The defendant pleaded the general issue. Verdict for the plaintiff.

At the trial of the cause, the plaintiff, to prove that the defendant was a common innkeeper, offered parol evidence. It was objected by the defendant that no evidence was admissible to prove that fact, but a copy of the record from Baltimore county court, showing that the defendant was licensed to keep tavern.  

DISPOSITION:
Appeal dismissed. Judgment affirmed.  

COUNSEL:
Winchester, for the plaintiff.

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

JUDGES:
S. CHASE, Ch. J. and J. T. CHASE, J.  

OPINIONBY:
S. CHASE; J. T. CHASE 

OPINION:

 [*393]  The Court (S. CHASE, Ch. J. and J. T. CHASE, J.) overruled the objection, and determined that parol evidence might be given to prove that the defendant was an innkeeper.
The defendant excepted to this opinion, and appealed to the court of appeal, where the appeal was dismissed by the appellant's counsel. A writ of error was afterwards brought, and the judgment of the [**2]  general court was affirmed at June term, 1797.  

32 of 37 DOCUMENTS 

KILTY vs. GREEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 345; 1799 Md. LEXIS 13 

May, 1799, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of assumpsit, docketed by the consent of the parties, for the purpose of obtaining the opinion of the court on the following statement, viz.

That at November session 1798, the general assembly, by a resolution, appointed the plaintiff to revise the acts of assembly of the state, and to prepare an edition thereof, with a full and complete index thereto, to be compiled in a particular manner; or in such other mode as the plaintiff should deem best adapted to the purpose; that such compensation be allowed to the plaintiff as the work, and the manner in which it might be performed, should appear to merit; that he should include in the said collection the original charter to Lord Baltimore, &c. &c. That the defendant, printer of the state, be directed to print, and procure to be bound, 200 copies of the said edition of the laws, under the directions of the plaintiff; and that the governor and council be empowered, by order on the treasury, to advance to the printer such sum as may be necessary for the purpose, &c.

That the plaintiff did, in pursuance of the said resolution, revise the acts of the general assembly of this state, and prepare an edition thereof [**2]  in the manner directed by the said resolution; and did give directions to the defendant, the printer of the state, to print the said edition of the acts of assembly so as aforesaid revised by him in the manner directed by the said resolution; 200 copies of which edition were printed by the defendant accordingly, in the month of April 1799. That the plaintiff, being a citizen of the United States of America, did, before the publication of the book of laws so prepared, to wit, on the 30th of March 1799, deposit a printed copy of the title thereof in the clerk's office of the district court where he resided, viz. in the office of the clerk of the district court of the United States for the Maryland District, and secured the copy right to the said book of laws, in the manner prescribed and directed by the act of congress of the 31st of May 1790, entitled, "An act," &c. and did perform all other requisites required by the said act of congress. That the defendant, within one year before the bringing this suit, to wit, on the 2d of May 1799, did, without the consent of the plaintiff in any manner given, print 101 copies of the said book of laws, over and above the 200 copies printed for the [**3]  state in pursuance of the resolution aforesaid. That the defendant knowing that the said 101 copies of the said book of laws to be printed without the consent of the plaintiff, did sell the said 101 copies of the said book of laws to sundry persons at the rate or price of, &c. for each copy, amounting for the whole to the sum of, &c. and which the defendant received. That the manuscripts of the plaintiff used in revising the acts of assembly aforesaid, and preparing an edition thereof, viz. the notes of the time of the repeal or expiring of each law, and the continuances of such acts as were originally passed for a limited time, and the index as aforesaid, were printed and published in the said 101 copies over and above the 200 copies printed for the state, without the consent and approbation of the plaintiff in any manner first had and obtained. That the plaintiff was allowed by the general assembly the sum of 1500l. being such compensation as the work and the manner in which it had been performed did appear to merit, in pursuance of the engagement contained in the resolution aforesaid, which sum the plaintiff received. That the governor and council advanced to the defendant the sum [**4]  of 500l. for the purpose of printing the said 200 copies of the said edition of the said laws, and that the sum of 1000l. being the residue of the claim of the defendant against the state for printing the said 200 copies, was after the said printing paid to him by order of the general assembly.

The question was, whether the plaintiff was entitled to recover against the defendant the sum of money for which the said 101 copies of the said edition of the laws were sold.  

DISPOSITION:
Judgment for the defendant.  

COUNSEL:
Kilty, in propria persona.

Shaaff, for the defendant.  

OPINION:

 [*346]  THE GENERAL COURT gave judgment upon the said statement for the defendant.  

33 of 37 DOCUMENTS 

Christopher Court & Co. against Isaac Vanbibber, terretenant of Mark Alexander. a

a See the case of Dulany v. Wells, ante, p. 20. 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

3 H. & McH. 140; 1793 Md. LEXIS 13 

May, 1793, Decided 

SUBSEQUENT HISTORY:
 [**1]  The judgment of the court of appeals was afterwards reversed in the supreme court of the United States. See 3 Dallas's Reports, 199. 342.  

PRIOR HISTORY:
 ON the 31st of December, 1788, a writ of scire facias issued out of the general court, against the terretenants of Mark Alexander, on a judgment rendered against the said Alexander in the provincial court, at April term, 1775, in favour of the present plaintiffs, which scire facias was served on sundry terretenants of the said Alexander, and among others the present defendant, who appeared and separately pleaded payment.

By a case stated and filed at May term, 1791, the facts appear to be, that

Mark Alexander, at the time the judgment was rendered against him, was seised in fee of a part of a lot of ground, No. 48. lying in Baltimore town. That he, by deed dated the 30th of January, 1777, conveyed to Jesse Hollingsworth a certain part of the said lot. Also, by his deed dated the 20th of January, 1780, he conveyed the said ground (except the part conveyed as aforesaid to Jesse Hollingsworth) to Henry Wilson, Gerard Hopkins and John Stump, who, by deed dated the 22d of January, 1780, made partition of the said part of the lot so granted [**2]  to them.

Henry Wilson, by deed bearing date the 21st January, 1784, conveyed that part of the said lot allotted to him as his share to Isaac Vanbibber, who now holds the same in fee-simple, and is terretenant thereof.

That at a provincial court held at the city of Annapolis, on the 19th of April, 1775, a judgment was obtained by the plaintiff against the said Mark Alexander, for the sum of 796l. 1s. 6d. sterling, damages, and 555lbs. tobacco, costs of suit; at which time the said Alexander was seised in fee of the property so granted by Henry Wilson to Isaac Vanbibber.

That on the 19th of April, 1775, the said Christopher Court & Co. were subjects of the King of Great Britain, and that on the 16th of March, 1781, before Allen Quynn, Esquire, one of the justices of the peace of the state of Maryland for Anne Arundel county, the said Mark Alexander duly made affidavit "that he is owing unto Mildred & Roberts, of the city of London, merchants, for a debt contracted before the first of September, 1776, the balance whereof, on the 31st of December, 1772, was 527l. 15s. 7d. sterling, and for which he passed his bond some time in the ensuing year; and that he is also owing [**3]  unto Christopher Court & Co. of the city of London, merchants, for a debt contracted before the 1st of September, 1776, the balance whereof, on the 16th of August, 1772, was 776l. 14s. 2d. sterling, and that the said Mildred & Roberts, and the said Christopher Court & Co. have not, since the said 1st of September, 1776, become subjects and residents of this or some one of the United States, and that they have not had an attorney in fact, acknowledging himself as such, for the purpose of receiving debts always since that time, and constantly residing within this state since the said 1st day of September, 1776, made oath on the holy Evangely of Almighty God, that he hath received for debts due to him before the 1st day of September, 1776, in bills of credit issued by congress, or emitted by resolves of convention, to the amount of above the sum of 1,500l. current money, and that he hath not paid for debts due by him before that, above the sum of 500l. current money. And the said Mark Alexander further made oath, that before the 20th of April, 1779, he sold property for the purpose of paying his debts aforesaid, by him as aforesaid contracted with the said Mildred & Roberts and Christopher [**4]  Court & Co. as aforesaid, before the 1st of September, 1776, and that he left 200l. current money, part of the purchase-money, in the hands of the purchasers, where it now remains, for the purpose of paying his said debts to the said Mildred & Roberts and Christopher Court & Co." Then follows a list of property sold, to the amount of 2,000l.; which oath the said Mark Alexander, on the same day and year, lodged with the treasurer of the Western Shore of Maryland, and on the said day and year paid to the said treasurer as aforesaid, the sum of 799l. 10s. 9 1-2d. sterling money, in the bills of credit emitted by the congress of the United States, and made payable by the act of assembly entitled "An act for calling out of circulation the quota of this state of the bills of credit emitted by acts of assembly under the old government, and by resolves of the convention."

That the said Alexander lodged the aforesaid sum of money with the treasurer on account of and in discharge and payment of the sum of money and costs due by the aforesaid judgment, and on the same day and year took the following receipt, signed by the treasurer, to wit: "The state of Maryland acknowledges the receipt [**5]  of 1,933l. 6s. 8d. currency, from Mark Alexander, on account of Christopher Court, agreeably to an act, entitled 'An act for calling out of circulation the quota of this state of the bills of credit emitted by acts of assembly under the old government, and by 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."

That on the 28th day of June, 1776, a convention of delegates of Maryland made and entered into the following resolution, viz.

"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." And that on the 4th of July, 1776, made the declaration of independence, which declaration is inserted in the case stated.

That a war was carried on between the United States of America and the King of Great Britain, from the said 4th day of July, 1776, until the 3d day of September, 1783, on which day peace was concluded between the United States and the King of Great [**6]  Britain; that the definitive articles of the treaty of peace were made on the said 3d day of September, 1783, which treaty is inserted in the case stated, and among other articles contains the following: "Art. 4. 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."

It was also agreed that if, on the statement of facts, the court should be of opinion that the plaintiffs have a right to their execution, that then fiat with costs should be entered, to be released on payment of such sum as the court shall determine to be due; but if the court should be of opinion that the plaintiffs have not a right to their execution, then judgment to be entered for the defendant.

It was also agreed, that each party should have a right to appeal from the judgment and opinion of the court, and on such appeal, to have the same advantage of the facts stated, as if a jury had been sworn in the cause, and the facts had appeared in a bill of exception taken at the trial, or as if they appeared in special verdict found in the cause.

The question before the court was, whether [**7]  the lien on the real estate of Alexander by the judgment is preserved by the treaty of peace between America and Great Britain, and the land bound in the hands of the defendant.

The Court were of opinion that the treaty had the same operation as if no law had passed authorizing payments into the treasury; and, therefore, all acts done in virtue of said act of assembly were void; and therefore gave judgment, upon the case stated, for the plaintiff, that execution be awarded for the damages and costs recovered in the original judgment, and costs on the scire facias, to be levied of the part of the said lot of which the defendant admitted himself to be tenant. Interest from the 4th of July, 1776, to the 3d of September, 1783, to be released.  

DISPOSITION:
Reversed.  

COUNSEL:
Cooke, for the plaintiff.

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

The defendant appealed to the court of appeals.

S. Johnston, for the appellant. On the case as stated, the point before the court is, whether the judgment was a lien on the property purchased by the defendant?

I shall not here contend that the judgment was not in force against the person and property of Mark [**8]  Alexander, either of which might be taken in execution after the treaty of peace, to satisfy this debt, because that point is now under the consideration of the court.

But I shall contend that the property purchased from him, and afterwards sold, was exonerated and discharged from the lien on it by the said judgment, by the payment of the money into the treasury, and could not afterwards be revived so as to affect an innocent purchaser under the confidence of the act of November, 1780.

I shall readily admit, that by the common law in England, lands of defendants are bound by judgments if held in fee-simple, and may be taken in execution; 2 Inst. 395. even though aliened bona fide, before execution sued, (30 Ed. III. 24.) from the time of signing the judgment by 29 Gar. II. c. 2, 3. 3 Com. Dig. 298. But the only remedy at common law on a judgment whereby land could be taken in execution, was by levari facias, whereby the plaintiff could only take the present profits of the land and rents then due, 3 Coke, 11. b. 12. a. and also the goods and chattels of the defendant; but the lands could not be delivered in execution. Lands were not at any time subject to be taken by fieri [**9]  facias in England. By the statute of Westm. 2. c. 18. a moiety of the lands of the defendant may be extended, and the goods of the party (except as therein excepted) by elegit, and the plaintiff holds that moiety until he shall be satisfied his debt, by the yearly value at which it is delivered to him as found by inquest. These are the only executions in England, whereby lands can be affected on personal actions. But by a statute made in the time of Geo. I. lands in America are subject to be taken in execution by fieri facias, and sold as personal property, and to all intents and purposes considered as such for the payment of debts. Lands are by this act become a sort of mixed property, partaking of some of the qualities of real and personal; and if it is to be governed by the law with respect to the rules of personal property, the fieri facias only binds from the delivery to the sheriff. If, on the other hand, the judgment is thought to be a lien on the land, I apprehend it must be governed by the common law, and the statute of Westminster, and either the present profits, if taken by levari, or a moiety of the land if by elegit, are the only means whereby the judgments are to be paid [**10]  out of the land. No fieri facias ever issued to bind the property in the present case.

I shall be told that the real estate is bound by the judgment; but I shall contend that if it was bound, and the judgment in this case had been a lien upon it, that it was discharged by the debt due thereon being discharged under the act of assembly, which enabled debtors to persons residing in Great Britain to pay their debts into the treasury, and discharge themselves thereby. The case stated admits that this was done, from which time to the treaty of peace, in September, 1783, the lots were discharged of any lien on them by the judgment, and although the treaty of peace provides that there shall be no obstruction or hindrance to the British creditor in recovering his debt from the person who owes the same, or his property. It can only mean that his person, and the property then belonging to him, should be liable; it never could be the meaning of that article to make the property of a fair bona fide purchaser made under the faith of an act of assembly, and discharged thereby, to pay a debt, which was no lien on the property at the time; but can lands once discharged from a judgment, and the [**11]  property purchased by another, be again made liable for the original debt by any rule of law; if so, where is it to be found?

I shall be informed by the gentlemen on the other side, that this is like a mortgage. I take it to be very different. A mortgage is an actual conveyance of the legal title by the immediate act of the owner of the land, and on payment, requires a reconveyance thereof to revest the same. This is only a lien by operation of law, which may be discharged by many ways without any act of the debtor, either by the act of limitation, or a discharge out of custody on a ca. sa.

Key, for the appellee. This is a case of a scire facias on a judgment obtained against Mark Alexander, against the terretenants of the lands sold by him, after the judgment, and before the payment into the treasury.

A judgment, by the laws of this state, binds lands from the time of signing the judgment, and not only in the hands of the debtor, but also in the hands of his assignee. It seems, therefore, extraordinary, to suppose that the payment made by Alexander could extinguish the lien on the land, and that under the treaty it is void as against the person or chattels; certainly [**12]  if it is void as to any purpose, it must be to all. The treaty does away the payment as effectually as if it had never been made.

The judgment bound the land, and created a lien, as effectually as a mortgage, or a marriage settlement. The fifth article of the treaty gives a remedy against lands in such cases, even where there has been an actual confiscation. This is going much beyond the 4th article; and is it possible to conceive that the lien shall continue where there has been an actual confiscation and sale by the state, and not where there has been a sale by a private individual?

Suppose a mortgagor had paid in money, and then sold the mortgaged premises, should not the creditor have recourse to the mortgaged premises? And certainly the case of a judgment creditor is as strong a case as that of a mortgagee. The debt was never extinguished, consequently, the lien was not. The treaty removed the impediment, and revived the remedy, not partially, but wholly and unconditionally.  

OPINION:

 [*144]  In the Court of Appeals.

 [*147]  The court of appeals, at June term, 1795, reversed the judgment of the general court.  

34 of 37 DOCUMENTS 

JENIFER'S Lessee vs. BEARD et. al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 73; 1797 Md. LEXIS 29 

October, 1797, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Townhill, lying in Anne Arundel county, brought for the use and benefit of Caleb Steuart, who had purchased the land, &c.

The plaintiff, at the trial, produced in evidence a grant for the tract of land mentioned in the declaration in this cause, and sundry mesne conveyances from the grantee down to Daniel of Saint Thomas Jenifer. He also produced the will of the said Jenifer, dated the 15th of April, 1790, whereby he devised the said land to his nephew, the lessor of the plaintiff, as follows, viz. "Item, I further give and bequeath to my nephew, Doctor Daniel Jenifer, to him, and the heirs of his body lawful to be begotten, for ever, all my lands in Charles county, two lots of land at the Warm Springs, and thirty acres of woodland in the vicinity thereof; and also all the remainder of my estate, after debts and legacies are paid. And in order that they may the readier be discharged, I hereby direct, and my will is, that my executors, or the survivor of them, (and in case of both their deaths the chancellor to appoint a person) to sell and dispose of all my lands in Anne Arundel county, my share in the Baltimore Iron Works," &c. &c. "And upon [**2]  the money's being by the purchasers paid, my executors to convey a title in fee simple, with general warranty." "Lastly, I constitute and appoint my brother Daniel Jenifer, and Doctor Daniel Jenifer, my executors of this my last will and testament," &c.

He also produced evidence, that the land for which this ejectment was brought was sold, under the said will, by Doctor Daniel Jenifer, the lessor of the plaintiff, as surviving executor of the testator, to Caleb Steuart, for whose use and benefit this action was brought.  

COUNSEL:
Ridgely and Van-Horn, for the plaintiff.

Key, for the defendant.  

JUDGES:
CHASE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*74]  CHASE, J. determined, that under the will of Daniel of St. Thomas Jenifer, his nephew, Daniel Jenifer, the lessor of the plaintiff, under the residuary clause, took the land in question, subject to the payment of debts and legacies, and that the executor, under the power in the will to sell for the purpose of paying debts and legacies, had a right and power to sell the land in question; and that by the sale to Caleb Steuart, and a conveyance to him by the executor, pursuant to the will, the legal estate would be divested out of the devisee,  [**3]  and acquired by the vendee under the executor's sale. That by the sale, Steuart gained an equitable interest only, and the legal estate remained in the devisee.  

35 of 37 DOCUMENTS 

ANONYMOUS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 159; 1798 Md. LEXIS 5 

May, 1798, Decided 

PRIOR HISTORY:
 [**1]   THE question was, whether a bond, note, bill of exchange, &c. is sufficient to hold the defendant to bail without an affidavit of the debt.  

JUDGES:
CHASE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*159]  CHASE, J. It appears to me, that the statute of 12 George II. c 29, (1725,) does not relate to the question before the court.
The question is as to the evidence the court will require of the cause of action to induce them to rule the defendant to give special bail.
The statute of George relates to arrests, and provides what shall be done previous to the arrest.
If the cause of action amounts to 10l. in the superior, or 40s. in the inferior court, affidavit shall be made and 

 [*160]  filed of such cause of action, and the sum specified in the affidavit shall be endorsed on the writ, for which sum the sheriff shall take bail. In case the affidavit and endorsement required are not made, the sheriff shall not arrest the defendant, but serve him with a copy of the process; which proceeding is in the nature of a summons.
The affidavit which is made previous to the arrest, is the affidavit upon which special bail is required, and if defective the court will not receive a supplemental affidavit,  [**2]  because the act of George requires a full oath previous to the issuing the process, that defendants may not be harassed-- 2 Strange 1157--determined two years after the statute.
The affidavit under the act must be positive, and not by reference to something else-- 2 Strange 1209, 1219, 1226.
The act requires an oath of a subsisting debt at the time of issuing out the process-- 2 Strange 1270. Wils. 231. Burr. 655, 1032.
The law and practice, as to arrests and holding to special bail in our courts, obtained long before the statute of George.
A person can be arrested in all cases without any affidavit or declaration of the plaintiff's cause of action, and it is the sheriff's duty to take a bail bond to the amount of 8000 pounds of tobacco.
By the act of 1715, c. 46, sec. 3, in an action of trespass on the case the sheriff cannot take bail for more than 8000 pounds of tobacco, unless a declaration is sent with the writ.
The act of assembly recognizes and sanctions the general practice as to arrests and taking bail bonds, and provides only for particular cases. This act passed ten years before the statute of [**3]  George.
Our practice is independent of the statute of George; and that statute has never been extended or adopted by our courts.
Wherever our courts rule a defendant to special bail, they require some evidence of a subsisting debt.
A bond, note, bill of exchange, &c. is prima facie evidence of a subsisting debt for the purpose of ruling bail; and the court on a motion for bail will not inquire into the merits, nor require plenary proof as on a trial.
This practice prevailed long before the statute of George, and ever since, without interruption, and I know of no decision of our courts against it, before the late determination in Baltimore county court.
The case in 1 Salk. 100, (11 William III.) decided by Holt, I think warrants and supports the practice of our courts.

 [*161]  It was an action of debt on bond, and the defendant was required to give bail, who opposed it, alleging the bond was obtained by duress. The court said they would not inquire into the merits on a motion for bail, and held the defendant to bail. No affidavit was produced in this case. It was debt on bond, and we may suppose the bond was produced.
I consider the practice of [**4]  our court reasonable, and warranted by the decision in Salkeld, per Lord Holt. No hardship, injustice or inconvenience, has resulted from it, and I am for adhering to it.
The statute of George has not been adopted, and has no relation to our practice.
THE WHOLE COURT concurred in opinion with Judge Chase, and the defendant was ruled to give special bail. 

36 of 37 DOCUMENTS 

MAHONEY vs. ASHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 295; 1799 Md. LEXIS 8 

May, 1799, Decided 

PRIOR HISTORY:
 [**1]   PETITION for freedom, the petitioner claiming to be descended from a free woman named Ann Joice.

BILLS OF EXCEPTIONS.

1. The petitioner, at the trial of the issue, by his counsel, produced and offered to read in evidence to the jury the deposition of Ann Hurdle, taken by consent on the 28th of May 1797. But the defendant, by his counsel, objected to the following part of the said deposition being read in evidence to the jury, to wit: "That she [Mary Hurdle, the mother of the deponent's husband,] said just so they served Ann Joice's family; that by all accounts they are in confinement now, and they ought to have been free long ago;" as containing the declaration of opinions as to a right, and not a declaration as to any fact; and therefore improper and inadmissible to go to the jury.

CHASE, Ch. J. a The Court are of opinion that the part of the deposition objected to is admissible to be read in evidence to the jury, the same being general reputation of the fact that Ann Joice's family were free. The defendant excepted to this opinion, &c.

a Done, J. concurring Duvall, J. having been counsel for the petitioner did not sit.

2. The petitioner also offered [**2]  to read in evidence to the jury, the following part of the deposition of Ann Hurdle, taken on the 28th of May 1797, by consent, to wit: "That she has also heard the Tuckers and Lovejoys, who were old people, and who are now dead, talk about it, but cannot recollect what they said, more than they censured those who kept them." To which the defendant by his counsel, objected.

CHASE, Ch. J. The court are of opinion that the part of the deposition objected to is not evidence, and cannot be permitted to be read in evidence to the jury. The petitioner excepted to this opinion.

3. The petitioner also offered to read in evidence to the jury, the special verdict which had been found by the jury, sworn to try the issue in this cause, at October term 1797, b and which had been heretofore set aside by the court on account of the same being adjudged defective, the fact that Ann Joice was in England not being expressly found. To which the defendant, by his counsel, objected, because the petitioner had the same testimony now to support his issue which was offered to the former jury.

b Vide ante pages 63 and 210.

CHASE, Ch. J. The court are of opinion that the special verdict [**3]  may be read in evidence to the jury. The defendant excepted to this opinion.

4. The petitioner, by his counsel, prayed the following direction of the court to the jury: "That if, from the evidence, the jury are of opinion that the woman Joice, from whom the petitioner is descended, was in England, and came from thence, they must find a verdict for the petitioner." 

DISPOSITION:
JUDGMENT REVERSED, and procedendo awarded.  

COUNSEL:
Ridgely, for the petitioner. If Joice was a slave before (which we do not admit) the moment she set her foot upon the soil of England, she became free, no matter where she was born or whence she came. If she was once free, we contend she could not afterwards become a slave by any change of her residence, nor could any agreement between Lord Baltimore, and her former master, affect her, or impair this right in the slightest degree.

Slavery is incompatible with every principle of religion and morality. It is unnatural, and contrary to the maxims of political law more especially in this country, where "we hold these truths to be self evident, that all men are created equal;" and that liberty is an "unalienable right." These doctrines are supported by the writers on [**4]  natural law. 1 Rutherf. Inst. ch. 20, s. 3--"Though it may be possible for a man to be a slave from his birth, yet no man is naturally a slave. They who are slaves from their birth must have been made such by some accident which happened before they were born; slavery is by no means their natural condition." And it is also said, (1 Ruth. Inst. ch. 10, s. 4,) "No man can absolutely and without reserve renounce his liberty." By the common law of England no person can have a property in another as a slave; and slavery can only be established by municipal regulations.

In deciding this question, the court are not to be guided or governed by any principles of law which have been recognized as to villeins in England. There is no analogy between villenage and slavery in this country, and so the court of appeals decided in the case of Butler vs. Boarman. a Indeed the dissimilarity is so evident as to preclude argument. Villeins were either regardant, that is, annexed to the manor or land, or else they were in gross, that is annexed to the person of the lord, and transferable by deed from one owner to another. If a niefe took a freeman to her husband, their issue was free. A man might become [**5]  a villein by confession in a court of record. If a niefe had a bastard, he was free. In case of marriage the issue followed the condition of the father, the children of a free woman becoming villeins, and of a niefe becoming free, where a freeman married a niefe, or a free woman married a villein--Co. Litt. s. 185, 186, 187. These and many other rules of law adopted as to villeins, plainly mark the line of difference between slavery in this country, and villenage in England, and prove the correctness of the decision in the case of Butler vs. Boarman. In the reign of Edward VI. vagabonds in England were by statute made slaves for two years upon conviction before two justices--4 Reeves Eng. Law 451, 452, 453; but this statute was soon repealed, (1 Blk. Com. 424,) and the punishment of slavery abolished, although vagrancy had become an excessive grievance, and the statutes against it were highly penal. This is an evidence of the abhorrence with which slavery was regarded at that day, (1547,) in England. The Portuguese in 1455 commenced the slave trade. They were followed by the Spaniards and Dutch. The African company was established in England in 1672, (Charles II) and in 1689 they entered [**6]  into an agreement to supply the Spaniards with slaves. In 9 and 10 William III. (1698,) an act passed relative to the slave trade; and also in 1726, (13 Geo. I ch. 8,) and in 1749, (23 Geo. II. ch. 31.) None of these acts countenance a slave trade to England. If we revert to the condition of these persons in Africa, we find that they were captives who had been taken in their wars, and were sold to the traders as slaves. The first act of the legislature of Maryland which notices slaves, was passed in 1663, ch. 30. The practice and usage of trade before that act never extended to persons who went to or came from England. The trade from Africa to America was direct; and as the slave trade was contrary to the policy of the common law and of England, no person was held as a slave, unless he came through that course or medium of trade established by act of parliament. "This spirit of liberty," (1 Blk. Com. 127, 424, 425) "is so deeply implanted in our constitution, and rooted even in our soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his services may possibly still continue.  [**7]  " "The law of England abhors and will not endure the existence of slavery within this nation." The law of England did not dissolve a civil obligation between the master and servant as to his perpetual service; but this could not extend to the issue of the servant, and reduce them to slavery. In the case of Smith vs. Brown & Cooper, (Salk. 666,) decided in 13 Will. III. Lord Holt, Ch. J. said, "as soon as a negro comes into England he is free; one may be a villein in England, but not a slave;" and in this case it was determined, that indebitatus assumpsit would not lie for the price of a negro sold in England, and that the plaintiff ought to have averred that the sale was in Virginia, and by the laws of that country negroes are saleable.--S. C. Holt, 495. In the succeeding reign, (4 Ann.) it was determined that trover would not lie for a negro, Smith vs. Gould, (Salk. 666, 667, S. C. 2 Ld. Raym. 1274.) In this case, (in Lord Raymond,) per totam curiam. "This action does not lie for a negro, no more than for any other man; for the common law takes no notice of negroes being different from other men. By the common law no man can have property in another." "There is no such thing as a slave [**8]  by the law of England;" and the court denied the opinion in the case of Butts vs. Penny, (2 Lev. 201. S. C. 3 Keb. 785,) and per Holt, Ch. J. (1 Lord Ray. 146.) Trover will not lie for a negro. In the year 1753, the legislature of Virginia, persuaded of the correctness of the doctrine we contend for, passed a law to prevent slaves getting free by going to England. Our act of assembly, (1663, ch. 30,) does not relate to negroes who came from England; this must be inferred from the words of the act, which says, "that all negroes, and other slaves, IMPORTED," &c. The term imported does not allude to any who may come from Great Britain; it must be applied to those brought here from Africa, with which country the slave trade was then sanctioned. The act does not say all negroes brought into Maryland shall be slaves.--The words of the law are, "that all negroes, or other slaves, already within the province, and all negroes and other slaves to be hereafter imported into the province, shall serve durante vita; and all children born of any negro or other slave, shall be slaves as their father's were, for the term of their lives." b--Lib. C. & W. H. fol. 153. This act is highly penal and therefore [**9]  by the general rule ought to be construed strictly, and not extended beyond the letter of the law.

a 1 Harr. & M'Hen. 371. 2 Harr. & M'Hen. 214.

b See 1 Harr. & M'Hen. 371.

With all these cases and principles in our favour, we contend that the act of Joice's landing in England, operated as an emancipation of her from the bonds of slavery, even if she were a slave before. If this be the law of England, our courts will notice that law; for the rule is undoubted, that courts of justice will notice the laws of other countries, and enforce them, where a principle like the present is agitated, if they are not repugnant to justice or to our own civil institutions. Then Joice's issue, born in England, could not be slaves, or held as such. We will for illustration suppose, that a writ of Habeas Corpus had been issued for Joice, and she had been discharged, she never could have been claimed afterwards as a slave. Again, suppose a petition had been filed by her in Maryland, and judgment given against her, and upon an appeal to the king in council that judgment had been reversed, would not she and her issue be free? This case must now be considered as it would have been at that [**10]  time. Even now, if we advert to the laws of a sister state, Pennsylvania, if a person from this state carries a slave into that state, and keeps him there six months, the slave becomes free and emancipated, and could not be held in slavery if he returned again to this state. So it was with Joice, and her issue, after she went to England.

He concluded his argument by observing, that he was confident the court would decide fairly and without bias between these parties, thus evincing to the world, that what Mr. Solicitor General Norton, in the case of Wilkes vs. Wood, (Lofft's Rep. 9) had said as to freedom in England, was equally applicable here, "that there is no man so high that he is out of the reach of the law, nor any man so low, that he is beneath the protection of it."

Jenings, on the same side. This question is to be decided upon the principles and maxims of the law of England. As a preliminary we must see what the writers upon English law have defined slavery to be. Grotius L. 2, ch. 5, s 27, calls it an obligation to give all our labour for a supply of the bare necessaries of life. Rutherforth, in his institutes, B. 1. ch. 20, thus defines it; "Perfect despotism seems [**11]  therefore to be an alienable right to direct all the actions of another; and consequently perfect slavery is an obligation to submit to be thus directed." Neither of these definitions are satisfactory. The master may have a right to his servant's perpetual service; he may have a right to administer correction; but he has no right over life or limb. Slavery cannot be justified on any principles whatever, and it is reprobated by every writer upon the subject. The great foundation upon which it rests is captivity--Puff. B. 6, ch. 5, s. 10, ch. 3, s. 6. Grotius B. 3, ch. 7, s. 7. Rynk. Lib. 1, tit. 3, Mont. B. 15, ch. 3. 2 Ruth. 573. 1 Ruth. 478. Amongst many other causes or reasons given for slavery, the most reasonable one is assigned by Ruther-forth in his institutes, Vol. 1. B. 1, ch. 20. s. 4.--"Thirdly, slavery may arise from damages done where the person who did it has no other way of making reparation." And again, Vol. 1. B. 1. ch. 9. s. 17. "The law of nature will allow those who are prisoners to be made slaves by the nation who takes them, to repair the damages that gave occasion to a just war, or that are done in it, and to make satisfaction for the expenses in carrying it on,  [**12]  so that their labour, or the price for which they are sold, may discharge these demands." To the same effect is Grotius, L. 3. ch. 7. s. 5--This is the reason assigned by every nation, Greeks, Romans, Jews, Germans, &c. Tucitus, ch. 24, 25. Cesar's Com. 13. But none of these reasons exist as to the natives of Africa. And in vain shall we recur to these principles for arguments to justify slavery, so utterly subversive and contrary as it is, and as all the decisions go to prove it to be, to the very spirit and genius of the laws of England. To prove the abhorrence with which the slave trade was viewed, he called the attention of the court to an extract from a very celebrated work, which would evince how soon was its decline in Europe--1 Robertson's History of America, B. 3, pa. 320, ch. 5--"One of the first advantages which the Portuguese had derived from their discoveries in Africa, arose from the trade in slaves. Various circumstances concurred in reviving this odious commerce, which had been long abolished in Europe, and which is no less repugnant to the feelings of humanity than to the principles of religion." And in England the most effectual remedies have from time to time been [**13]  adopted for the suppression of slavery. No where can we find in the history of its jurisprudence, or in the writings of the various authors who have commented upon its constitution and laws, a single passage which justifies slavery, as it is thus defined, or speaks of it as existing there. In 1580, slavery commenced by the importation of them to America. No species of bondage ever existed in England excepting villenage. Villeins were either by blood or tenure; their services were uncertain and indeterminate; they were liable to punishment, but no lord could kill or maim them. A freeman might be a viliein, for the rule was "villenagium sive servitium nihil detrahit libertate." And again "tenementum non mutat statum liberi non magis quam servi; poterit enim liber homo tenere purum villenagium, faciendo quicquid ad villanum pertinebit, et nihilominus liber writ"--Co. Litt: 116. Term de Ley, tit. Villenage. Villenage descended to the issue where the father and mother were villeins--Co. Litt. sect. 181. But if a freeman married a niefe their issue was free--Co. Litt. 123, a. Wilkins, 7, 8. Tenure in villenage is of an ancient date. Before the conquest there were villeins in England--1 Hume's [**14]  Hist. Eng. 181--This was 500 years before the nation engaged in the slave trade. The courts have always discouraged this tenure, widely differing in many essential respects from slavery; and in every case they have invariably acted upon the principle of always presuming in favour of liberty--Co. Litt. sect. 202, to 209. Fitzh. N. B. 78. 2 Roll. Ab. 735, 736, 737. In the reign of Elizabeth, villenage was at an end; it was abolished. The last case to be found upon the subject of villenage is in Dyer. 266, pl. 11. 283, pl. 32. Cro. Ent. 406. a. Yelx. 2. Noy. Rep. 202. Hugh. Ab. tit. Villenage. Villenage ceased to exist as early as the reign of Edward VI. (2 Blk. Com. 99,) excepting in a few cases where they were held by the clergy. Whether this gradual decay was owing to deaths or manumission, actual or implied, it matters not. The tenure was virtually abolished by the statute 12 Car. II. ch. 24. Charles, Lord Baltimore, who claimed Joice as a slave, left England in 1681. He had been in the province presiding in person in the assembly in 1676, and was again presiding in person in the assembly in September 1681, and continued so presiding at each session until and during December 1688.--Bacon's [**15]  Laws of Maryland. In 1689 there were negroes in America--2 Lev. 201. Villenage had ceased in England before Lord Baltimore left there. If he brought Joice from thence with him, she was a free woman, and his thus taking her among slaves could not alter her condition. Or, on the other hand, if he, or any other person, finding her a slave in this country, carried her to England, she then became free; for not even villenage at that day existed there, having ceased before 1661. That villenage did not exist after 1574, is to be presumed from what is said by Barrington in his observations on the statutes, page 238. If therefore villenage did not exist when Joice was in England, surely slavery could not. No matter what may have been the condition of Joice previous to her being in Fngland, the moment she arrived there she was free; at least she was so far so that her issue born afterwards were in no degree bound to the service of her master.--1 Lord Ray. 146, 147. 5 Mod. 186. Judelinus, 6. Venius. 32. Denewey, 5. It may, as to this case be granted, that the master had still a right to the service of the former slave durante vita. A case is mentioned in 1 Lord Ray. 146, 147, between Gelly and [**16]  Cleve, in which it was said the court determined that trover would lie for a negro boy. This decision is stated to have been in the common pleas before Lord Raymond commenced his reports. If that court ever did make such a decision, it must have been without argument. The case is only cited from memory, and it has been since repeatedly overruled. After weighing these several authorities, even if it be granted that Lord Baltimore had at any time previously been entitled to Joice as a slave, yet this right was divested on her going to England; and being once thus divested, it never could again attach so as to affect her issue. Much may be said as to the injustice of this case, and the hardship of it; there is no injustice in making the decision, contended for on the part of the petitioner; it was a voluntary act in Joice's owner who carried her to England. Let us suppose the case of a ship from Africa, loaded with these human victims to an infamous traffic, being stranded on the coast of England, there would be no injustice in freeing them from a bondage which fraud, violence and rapine, had forced upon them; although their being thus cast upon a friendly shore would be an act of God,  [**17]  which their owners could not avert. And the counsel on the other side cannot contend that the cargo of slaves would not be free. If there is any injustice, any hardship in this case, the petitioner, and his ancestors, have suffered it; they have been held in thraldom when they were entitled to their freedom; they have been the victims; they have been the only sufferers.

Martin, (Attorney-General,) for the defendant, [See his argument in the court of appeals, Post.]

Johnson, for the petitioner, was about to reply, but was stopped by the court.

CHASE, Ch. J. delivered the following opinion of the court.

Every villein is by-prescription or confession in a court of record--Co. Litt. 117. b. The last confession of villeinage extant is in the 19 Hen. VI. (1441.)--Lofft. 17, Lord Mansfield's opinion. In the time of Edward VI, (who was crowned in 1547,) there was not a villein in gross in England--2 Blk. 96. Charles was crowned in 1625--the charter of Maryland was in the 8th Chas. (1633.) The laws relating to villeins do not respect this case, nor can they have any influence in deciding it. Joice, the ancestor of the petitioner, was emancipated as soon as she was brought [**18]  into England, and her condition was changed from that of slavery into servitude for life; and when she was brought into Maryland by Lord Baltimore, she was only a servant, and the laws concerning slaves did not attach on her, and slavery was not resumed by her coming here, and consequently her issue are free. The numerous acts of parliament respecting the African trade being founded on policy, and having in view the transportation of negroes from Africa to the West Indies and the plantations, never contemplated the bringing slaves to England; and however inconsistent the parliament might be in sanctioning and promoting that inhuman and iniquitous commerce, and not protecting and securing the rights and property acquired under them in their fullest extent; they did not, they could not operate to change the common law of England, and to tolerate slavery in that country. In 2 Salkeld, 666, the decision by Lord Holt, chief justice, is full in point--it is not a mere dictum, but a determination of the question before the court. Holt held, that as soon as a negro comes into England, he becomes free. One may be a villein in England but not a slave. He directed the counsel to amend the declaration,  [**19]  and to declare that the negro was in Virginia at the time of the sale; and that by the laws of Virginia negroes were saleable as chattels. If they had been considered as property and saleable by the laws of England, the sale would have been valid if made there. In 2 Salk. 667, (Smith vs. Gould,) per curiam--men may be the owners, but cannot be the subject of property by the law of England. 1 Blk. Com. 424--The laws of England will not endure slavery within the nation. He then refers to the decision by Holt in Salkeld--a slave, or negro, the instant he lands in England becomes a freeman, and the law will protect him in the enjoyment of his person and property, and the master retains a right to his perpetual service. In 1 Ld. Raym. 146, it is adjudged that trespass will not lie for a negro; and it is said by Holt that trover will not lie for a negro. In 2 Ld. Ray. 1274--It was decided that an action of trover would not lie for a negro. By the common law no man can have a property in another. Although the judgment was by default, the question came before the court on the writ of inquiry, whether the damages should be assessed for the negro; and the court decided as above. The case of [**20]  Butts & Penny, in 2 Lev. 201, denied to be law. Lofft, 17, 19--Lord Mansfield decided, that a slave was free by coming to England; the slave could not have been discharged on any other ground. If Somerset was the slave or property of Stewart, Stewart had a right to send him to Jamaica for sale, or to any other place. His dominion or power over him as a chattel would have been complete; but the court discharged him because he was free. The court in this case had all the law before them, and after full consideration of it, and after paying due attention to the opinions of Sir Philip Yorke, and chief justice Talbot, they discharged Somerset on the ground that he was emancipated by being in England.

The court, in forming their opinion on the question before them, to make use of the language of Lord Mansfield, have not regarded the inconvenience, hardship or loss, of the master on the one side, nor suffered their judgment to be influenced by compassion on the other. The law of England upon which this question must depend, is the rule which has guided their decision, and if they should err they will derive consolation from the reflection that there is a superior court to correct their [**21]  mistake. This question, in the apprehension of the court, depends on the common law of England. The common law of England is founded on principles of natural justice, and rests on immemorial usage and custom as its foundation. The common law must prevail in England until changed by act of parliament. The decisions of the courts of justice, contained in our books of reports and the treatises of learned sages of the profession, are the monuments and evidences of what the common law is. Slavery is not tolerated by the common law, and according to that law a slave becomes free as soon as he lands on English ground. His condition is changed from that of slavery to servitude for life. The relationship of master and servant subsists in some degree, and in all respects, not incompatible with the common law of England. The master has an interest in him, and a right to his services for life. The master retains the power of moderate correction, and a power of confining him for the purpose of compelling him to render that service the master has a right to. The rights and power of the master may be assimilated to those which exist in the case of apprentices and of servants for years or life. An [**22]  action will lie for the taking of a negro with a per quod servitium amisit. A right to the perpetual service of the negro is not incompatible with the right of the negro to the protection of the laws and the enjoyment of property. A servant for years or for life is entitled to the protection of the laws, and is capable of taking and holding property. He might acquire property by gift or devise, and the master would have no power over it. A slave is incapable of taking or holding property. The acquirements of the slave belong to the master, and the issue are slaves. The courts have decided that every negro held in slavery or as a slave, was presumed to be a slave, and that the onus probandi lay on the negro petitioning or claiming freedom. This opinion is founded on the acts of 1663, ch. 30, and 1715, ch. 44, declaring that all negroes and other slaves imported, or to be imported, should be slaves durante vita. The courts have not decided that these words operate to make all negroes slaves who were free at the time of passing the above acts; a presumption was created thereby, that all negroes held as slaves were such, and the onus probandi was cast on the negro who petitioned for his [**23]  freedom, which, like all other presumptions, was liable to be combated and repelled by proof.

The court gave the direction to the jury as prayed by the petitioner. The defendant excepted to this opinion.

5. The defendant, by his counsel, prayed the direction of the court to the jury, "that if from the evidence in this cause they are of opinion that a woman called Joice, the ancestor of the petitioner, was a negro woman carried with her owner, claiming her as a slave, from the island of Barbadoes to England, and afterwards brought into this country by Lord Baltimore, claiming her as a slave, between the years 1678 and 1681, and that she, during her life was held, used and treated, as a slave, and that her issue have been held as slaves ever since, that then they must find a verdict for the defendant."

Shaaff, for the appellant. As to the first bill of exceptions--The question here is, as to the admissibility of a certain part of the deposition of Ann Hurdle, wherein she states, "that she (the mother of the deponent's husband) said just so they served Ann Joice's family; that by all accounts they are in confinement now, and they ought to have been free long ago." This [**24]  evidence was admitted by the general court, upon the ground of its being hearsay, and that it is evidence of subjects of general reputation. It is very questionable whether the fact of being free is a subject of general reputation, which may be proved by hearsay. Yet granting it to be the case, here the evidence adduced, and allowed by the court to be read to the jury, did not go to the fact, but to the right to be free. Certain facts may be proved by hearsay, but rights cannot; as in this case, hearsay may be evidence of the party's having acted as a free person; but it cannot be admitted to prove a right of freedom. What does this part of the deposition amount to? It is only an expression of Mary Hurdle's opinion of the right of the Joice's to their freedom. No facts are stated upon which this opinion was founded. If those facts were disclosed, it might be found that this opinion of Mary Hurdle was erroneous. Many instances might be put of mistaken opinions; to instance some, she might have heard that they were set free by will; that they were the descendants of a free white woman; and numberless other causes which report might have assigned, and which, if they had been given as [**25]  the grounds of her opinion, might have proved either to have been unfounded in fact, or if true, not sufficient in law to warrant the conclusion her illiterate mind drew from them. There is no instance, not a case can be produced, in which hearsay has been admitted as evidence of a right. If this doctrine is to prevail, in future times an opinion may prevail, that all negroes have a right to freedom; this may in the course of years come to be a general report; and according to the doctrine of the general court, will then be admissible as evidence to go to the jury.

Second bill of exceptions. This exception was taken by the petitioner, and as he has not appealed from the judgment of the general court, the court of appeals will not, it is presumed, give any opinion as to the correctness of the decision contained in it.

Third bill of exceptions. This exception is to the opinion of the general court, admitting the special verdict, taken in a former trial between the same parties, and set aside by that court as being defective, to be read in evidence at the last trial in this case. The special verdict was set aside for insufficiency; no judgment was rendered thereon; yet notwithstanding,  [**26]  it was admitted to be read in evidence at a future trial, although the petitioner had the same evidence in his power to produce, which he had when the special verdict was found.

To support the opinion of the general court, the counsel for the appellee will, it is presumed, cite Gilb. L. E. 37. 3 Com. Dig. 279. 1 Roll. Rep. 46. But we contend that these cases do not justify the decision which has been given. When a verdict is set aside, it seems clearly that it is void, and is of no more force or effect than if it had never been given. That a verdict cannot be given in evidence without the judgment upon it, cites Bull. N. P. 234. 1 Morg. Ess. 94, 99, 100. Lofft's Gilb. 38. 1 Stra. 162. 3 Com. Dig. 279. Hardres 118.

Fourth bill of exceptions. That if Ann Joice, the ancestor of the petitioner, was in England, and came from thence, the petitioner is free.

Upon this exception three questions arise, viz.

1st. Whether a negro slave carried to England is there free?

2d. Whether if he there becomes free he is not again a slave when brought to Maryland?

3d. Whether the exception is not so worded as to exclude these questions, and must not be reversed on another [**27]  ground?

1st. It is not necessary to prove the property of slavery; that it does in fact legally exist is sufficient. The property in the slave is very different from that which a master has in a servant. A slave has no rights--Even the murder or maiming one is only an offence against government. The master has not only a right to his services, but to his person. Ann Joice went a slave to England, and as the law protects property, she was not a subject for the law to operate on. The Magna Charter relates to freemen. Every man shall enjoy those rights which the law does not take from him; and of coarse the master had a right to the property in his slave, and neither the common nor statute law took it from him. That trover will lie for a negro, &c. he cited 2 Lev. 201. (2 Car. II. in 1677.) 3 Keb. 785, (2 Car. II. in 1677.) 3 Lev. 336, (4 Ann, 1702,) see 1 Blk. Com. 129. 451. 2 Blk. Com. 406. Gelly vs. Cleve, 1 Lord Ray. 147. That trover will not lie for a negro, will be cited 2 Lord Ray. 1274, (5 Ann, 1706,) Salk. 666. 1 Lord Ray. 147. 1 Lofft, 17. The Somerset case, 1 Lofft, 17, is not conclusive. It only determines that slaves cannot be held in England.

2d. On this part there [**28]  can be no authorities. The law of England will not destroy a man's right of property; and although the slave could not be held in England, yet when brought here he may--1 Blk. Com. 129, 451, 452. There is no reason why a negro brought from England, or any other place, should not be a slave. What is the nature of the slave trade? It is not founded on positive law, but it is founded in custom. In the years 1585 and 1588, charters were granted by Queen Elizabeth encouraging the slave trade. This was long before the charter of Maryland was granted. The trade was not confined to any place; it extended to many African islands, Madagascar, &c. It was of no consequence where a negro was brought from; when here he was a subject of property. Hence I conclude, that if a negro was brought from England he might be sold here as a slave. The first acts of assembly of Maryland upon the subject, are 1663, ch 30, and 1681, ch. 4. By these acts, and by the act of 1715, ch. 44, all negroes, and other slaves, imported, or to be imported, are declared slaves during life. If Ann Joice was in this country at the time of passing these laws, and if they have the power, they have enacted that she is a slave.  [**29]  The operation of these laws are important for another purpose; they have declared all negroes to be brought into this state shall be slaves. If Ann Joice was brought after the operation of these laws, she comes clearly within them, and is made a slave. These laws make no distinction as to the place from whence a negro comes. They cannot be said to be retrospective. It is the same case with every negro brought into the state from Africa; they are made slaves by the law of this state, either by positive law, or by custom recognized as law.

3d. The form of the exception will exclude these questions. The court have directed the jury, that if Ann Joice had been in England, and came from thence to Maryland, the petitioner was free. This is not law in the generality; because it is clear, that Joice might have been in England, and yet her issue not entitled to freedom. For example--Suppose she had run off and went to England; or if the Guinea ship, in which she was, had been wrecked and obliged to put into some English port; or suppose her issue had bound themselves as servants, &c.

Fifth bill of exceptions. This exception will depend upon the fourth exception. It is the converse [**30]  of that exception; and if a negro, having been in England, does not make him free, the court ought to have given the direction which the defendant prayed for.

Harper, on the same side. [The first part of the notes of his argument have been mislaid.] In Somerset's case, 1 Lofft, 17, Lord Mansfield does not say the negro becomes free, but that the right of the master cannot be enforced in England. The question of freedom was not before the court. It was, whether the right of service could be enforced. Lord Mansfield recognizes the opinions of Hardwicke and York. 2 Ld. Ray. 1274, recognizes the right, but differs as to the mode of enforcing it. Lord Holt meant that the right to the negro was only suspended, not divested.

Fourth question (on the fifth bill of exception,) as to the generality of the opinion of the general court.

No right can originate in a wrong. He refers to the case of salvage, decided in the supreme court of the United States, (1 Cranch, 1.) where to support a demand for salvage, the capture must be lawful, and a meritorious service must be rendered. Apply the above maxim--if the slave had runaway and gone to England, or had done an unlawful act, yet,  [**31]  by the opinion given by the general court, she was set free. Suppose she had consented to have been stolen, and carried to England, she, by that opinion, would have been free.

Cooke, Key, and Mason, on the same side. [The notes of their argument have also been mislaid.]

Johnson, for the appellee. First question (on the first bill of exceptions.) The court are not bound to determine on the bill of exceptions alone, they may decide on the whole of the case, and if it appears to them that the petitioner is entitled to his freedom, they may affirm the judgment. Whether or not the petitioner is entitled to his freedom, is a fact; and in all cases of petitions for freedom hearsay evidence has been admitted in evidence to prove the petitioner entitled to freedom; for instance, in the cases of the Savoys, the Shorters, the Thomas's, the Queens, the Bostons, and the Toogoods, (all tried and determined in the general court, and most of them decided on in this court;) the reputation of the neighbourhood, as to the fact of freedom, was admitted in evidence.

Second question, (on the third bill of exceptions.) The special verdict was properly admitted in evidence to the jury. In [**32]  Gilb. L. E. 32, it is stated, that if a verdict be had on the same point, and between the same parties, it may be given in evidence. The reason given why a verdict may be given in evidence is, because the parties have a right to cross examine; which reason applies, as well to a verdict where no judgment has been entered thereon, as it does to one where a judgment is given.--Morg. Ess. 92. So a verdict in another action for the same cause shall be allowed in evidence between the same parties, though the judgment was afterwards arrested for want of form. Morg. Ess. 93. 3 Com. Dig. 281. 2 Roll. Ab. 46. The case in Bull. N. P. 234, is a nisi prius decision, and not high authority; it is the same case referred to in Lofft's Gilb. 38. So if the jury are agreed, and afterwards discharged, before verdict given and recorded, it shall be allowed in evidence that the jury were agreed.--1 Morg. Ess. 94. 2 Roll. 680. The case in Hardres's Rep. 118, does not apply to the present question. The case in 3 Mod. 141, shews that the case referred to by the elementary writers does not support the position contended for on the other side. And the case in 1 Stra. 162, proves that the verdict may be admitted [**33]  in evidence for some purpose, to prove a trial was had between the same parties.

He distinguishes between a special verdict, and a verdict where the judgment is arrested.

Third question, (on the fourth bill of exceptions.) The moment a slave arrives in England he is as free as if he had been legally manumitted by deed. Joice having been in England, she was, and her issue are, free; and no contract made between Lord Baltimore and her master, is valid, because she did not consent. Having been once free, she and her issue always remained free, and no subsequent event could effect a change in their condition. No person is naturally a slave, and by the common law of England no person could have a property in another.--1 Ruther. 149, 474. There is no analogy between villenage and slavery--Co. Litt. sect. 185, &c. There are two kinds of villeins; regardant and in gross. Villeins regardant are annexed to the manor or land. Villeins in gross are annexed to the person of the lord, and transferable by deed from one owner to another.--2 Blk. Com. 93. Co. Litt. s. 181. If they ranaway, or were purloined, they might be claimed and recovered by action, like beasts or other chattels. The [**34]  law protected the persons of villeins against atrocious injuries of the lord; for he might not kill or maim his villein, though he might beat him with impunity.--2 Blk. Com. 94. The condition of villeins regardant meliorated by degrees, and they at last were considered as having a right to hold the land on performance of the accustomed services, and the lord could not determine their estate at his will and pleasure; and in process of time they were called tenants by copy of court roll, and their tenure itself a copyhold--2 Blk. Com. 95. When tenure in villenage was virtually abolished by the statute of Charles the II. there was hardly a pure villein left in the nation--2 Blk. Com. 96. There was an attempt by law to make vagabonds slaves, but it was rejected by the nation.--2 Blk. Com. 91, 92. Slavery originated with the Portuguese in 1543. The Spaniards and Dutch soon followed. In 1562 England followed before the navigation act. In 1672 the royal African company was established; and in 1689 England's first assiento-contract with Spain to supply their West Indies with negro slaves from Jamaica. A slave touching in England became free like contraband goods. They must come in the direct [**35]  route from Africa to this country, or they came voluntary, and are free. In 2 Lev. 201, (29 Car. II. 1676,) it was held, that trover would lie for negroes as they were usually bought and sold among merchants as merchandize. But in 2 Lord. Raym. 1274, it was decided, that trover would not lie for a negro. By the common law no man can have property in another, but in special cases, as in a villein. There is no such thing as a slave by the law of England. If a man's servant is taken from him, he may maintain an action for taking him, if it is laid with per quod servitium amisit. The court denied the opinion in the case of Butts and Penny,--2 Lev. 201. The spirit of liberty is so deeply implanted in the English constitution, that a slave or negro, as soon as he lands in England, falls under the protection of the laws, and becomes a freeman; though the master's right to his service may continue--1 Blk. Com. 127. The law of England abhors and will not endure the existence of slavery within the nation--1 Blk. Com. 424. The relation between master and slave is not abolished or dissolved by the slave's going into England; it still subsists in some degree; the right of property is divested;  [**36]  trover will not lie; neither will trespass lie. 1 Ld. Raym. 146.--A right to the services of the slave still exists, and an action will lie for the taking a negro with a per quod servitium amisit. The master may maintain an action against any one who employs him after notice of the relationship subsisting between the master and him, and recover damages equivalent to the loss sustained thereby. Every right and remedy, not incompatible with the laws of England, may be exercised by the master. If a man is hired for a year or term of years, and deserts the service of his master before the expiration of the time he contracted to serve, an action will lie, and damages may be recovered. Men may be the owners, and therefore cannot be the subject of property--Salk. 666. As soon as a negro comes into England he becomes free--Holt's Rep. 495. In the great case of Somerset, (Lofft's Rep. 9.) it was finally ascertained and declared to be the law of the land, that as soon as ever any slave set his foot upon English territory he became free.

Ridgely, on the same side. [See his argument in the general court, ante.]

Martin, (Attorney General,) in reply. This was an action tried in the general [**37]  court, before a jury, on matter of fact, and not before the court, as was formerly the course of trying petitions for freedom. The court only decided the law arising in the case. This court can therefore take notice only of such parts of the depositions as are inserted in the bills of exceptions taken at the trial. The record transmitted contains the whole of the written testimony offered at the trial; but there was parol evidence offered; which forms no part of the record before the court. And if this court were to decide on the evidence as it appears before them, they would act upon a very inconsiderable part of what was before the jury. The question must depend on those parts of the depositions upon which the general court decided, and to which bills of exceptions were taken by the defendant in that court.

The first question arises upon the first bill of exceptions, as to the evidence of opinions as to a right, and not of facts whereon such opinions were grounded. General reputation may be given in evidence of facts in certain cases, but not the legal inference deducible from facts. A witness has no right to give an opinion to the jury of a right; he must relate facts, and [**38]  the jury are to form their opinion from those facts. Whether a person exercises the right of freedom is a fact; but his right to freedom is not a fact. Persons are frequently declaring that all negroes are entitled to freedom--Forty years hence this will be reputation, and be brought forward to prove they are entitled to freedom. Our courts have determined that general reputation, that such persons are descended from white women, or that they have exercised the right of freedom, is evidence to the jury. It is giving the power to ignorant persons to judge of rights. In the case of the Butler's, reputation was given in evidence that they were descended from a white woman; so also in the case of the Toogood's. In the case of the Queen's, that they were descended from a native Indian of South America. In all these, and in many other similar cases, hundreds of negroes have been let loose upon community by the hearsay testimony of an obscure illiterate individual.

Second question, (on the third bill of exceptions,) whether or not a special verdict, set aside for defects, can be given in evidence in a subsequent trial between the same parties. The same evidence, it is admitted, was in [**39]  the power of the party at the last trial which he had at the time when the special verdict was found. What one jury finds is not to bind the consciences of another. Whenever a verdict is allowed to be given in evidence, the introductory evidence is not read to the jury; it is only evidence that there had been a trial between the same parties in order to introduce an account of what the witnesses swore at the trial. No case has been produced where a special verdict, upon which no judgment had been given, has been read in evidence at a subsequent trial. A verdict will not be admitted in evidence without likewise producing a copy of the judgment founded upon it; but the rule does not hold good in the case of a verdict on an issue directed out of chancery, because it is not usual to enter up judgment in such case; but the decree of the court of chancery must be produced.--Buller's N. P. 234. Theory of Evid. 21. The bare producing the postea is no evidence of the verdict, without shewing a copy of the final judgment; for it might have happened that the judgment was arrested, or a new trial granted.--Esp. 750. 1 Stra. 162. In Com. Dig. tit. Evidence, it is said, a verdict may be given in [**40]  evidence, although the judgment was arrested for want of form--(Cites 2 Roll. Ab. 46.) But in the same book contra, (cites the case in 1 Stra. 162,) and also, "If a verdict be offered in evidence it ought to be proved by an exemplification of the verdict and judgment upon it." The cases in 2 Roll. Ab. 46, 680, do not support the position contended for by the opposite counsel. Lofft's Gilb. 35, when abridging from Gilbert, leaves out that part which says if judgment given in evidence, &c.

Third question (on the fourth bill of exceptions) is, whether or not if Joice, the ancestor of the petitioner, was in England, and came from thence to Maryland, she and her issue are free? If Joice was a slave, and was sold as such, she did not by the mere act of going to England become free and enfranchised. There the law recognizes the doctrine, that a person may have property in a negro. But supposing she was entitled to her freedom, if there was no adjudication in her favour in England, the right of her master was not divested, and upon her being brought into this country she was placed in the same situation as to her master, in which she was before she went to England. It has been said that [**41]  there is no analogy between villenage and slavery. I contend that a slave and a villein mean the same thing; that villeins are slaves; cites Co. Litt. 116. a. 117. b. 123. sect. 187. Chamber's Dict. verbo. villein Cowel Inter. tit. Villein. Sullivan's Lectures, 64, 307, 308. Dalrymple's Feuds, 28, Finche's Law. 159. Bracton, B. 1, ch. 6, 9. Fleta, p. 1, c. 1. Mirror, 109, 110, 112. Spetman on Feuds, ch. 7, p. 15. 2 Blk. Com. 93. Villeins might be recovered by action like other chattels. The conclusion is, that by the common law, men were slaves, and that slavery did and can exist in England. A negro in America is in the same state that a villein in gross was in England, subject to the will of his master, labouring under every incapacity as to the rights of property, and liable at any and every moment to be sold. It is urged against this, that his lord had no power over the life or limb of a villein--neither here has the master of a slave any such right. A villein might be confined by his lord; so can a slave be confined by his master. It has also been said, as evincing the distinction between slavery and villenage, that one villein could sue another. This is a mere difference between [**42]  the legal institutions of the two countries. If a villein did sue another, whatever he recovered went to his lord; but with us the form of remedy given to the master is different; for he must sue in his own name, and not in that of his slave, who can have no rights but those of personal protection from being cruelly and wantonly maimed or murdered, a right which they derive from the mere circumstance of their being human beings, and of course, as well as ourselves, under the protection of the divine laws. Neither did, as has been contended, the statute of Charles II. relate to villeins in gross. It affected only villeins regardant. The law as to the former is still unrepealed, although there are now in England no objects for it to operate upon. A negro is not within the contemplation of the laws of England. Magna Charta was a compact with the freeman, and extends not to villeins, ch. 4. vide also Barrington on statutes, 8. Much has been said about the rights of villeins in England; the history of their jurisprudence by no means shews that they were regarded in a favourable light, but indeed in quite a contrary one. The laws about villeins were most severe, and highly penal, as for [**43]  instance the statute 25 Edw. III. ch. 18. By another statute, if they departed from the service of their master, and went into another county, they might be reclaimed and punished with burning in the forehead. It is true a villein might have a writ of habeas corpus if unjustly or without cause detained in prison; but disobedience to his lord, or refusing to obey his lawful commands, were adjudged sufficient causes. 33 Edw. III.--"Villein detained in confinement for refusing to drive his lord's cattle, and remanded on habeas corpus." Even the celebrated petition of right, (3 Car. I. ch. 1,) in 1628, speaks only of freemen. In the 5th clause, after reciting in the previous ones the privileges of the freemen, the grievance complained of is, that the king's subjects had been detained and imprisoned without cause shewn; and when for their deliverance they were brought before justice by writs of habeas corpus, no cause was certified by their keepers, "but that they were detained by the king's special command, signified by the lords of the privy council." And in clause 10, the request of the parliament is, "that no freeman in any such manner as is before mentioned, be imprisoned or detained"--5 [**44]  Hume's Hist. Eng. ch. 51. Note [B. B.] In the habeas corpus act, (31 Car. II. ch. 2, s. 12,) there is a provision to prevent imprisonment beyond seas; but this act is confined to the subjects of Great Britain--Villenage was at that time literally worn out; hence is the reason why the term freemen is not used. I contend that this act never was intended to be applied to negroes, of whom there were none at that time subjects of the realm. The history of the slave trade has been adverted to--no person can properly advocate slavery, but the emancipation of slaves at this time would be productive of incalculable evils. I am not an advocate for slavery; neither has the morality or immorality of the practice any thing to do with this case. The only question before the court is this, what is the law upon the subject? To determine this question it may not be improper to advert to the history of the slave trade, and view its rise and progress. The discovery of America first gave rise to it; and we find the Portuguese were the first who engaged in it in the year 1443. The Dutch soon followed their example. The English did not engage in this trade until 1562, and slaves were first brought into [**45]  Virginia in 1620, long after the patent of Queen Elizabeth to an African company, in the year 1585. It may here be remarked, that the trade to Africa was carried on under the sanction of the British government; and this will rebut the arguments which have been so much pressed as to the abhorrence of the laws of that nation to slavery. In 1592 another patent was granted, under which this trade to the coast of Africa was prosecuted until 1618, when a new charter was granted by James I. In 1631 Charles I. granted another charter; and in 1651 the Rump Parliament granted a similar one. These, or at least some of them, were after 1620, when slaves were first brought into Virginia.

After the restoration, we find that Charles II. in 1662, incorporated his own brother, the Duke of York, and many others, into a company, which contracted to supply the plantations, as we were then called, with slaves. About this time a war broke out between England and Holland, and this charter either expired or was revoked. But again in 1672 the Royal African Company was incorporated, and the sum of 111,000l. sterling was subscribed as a capital. It is in vain that we recur to these acts of the government [**46]  itself for evidence of its abhorrence of the slave trade; they prove quite the contrary of the doctrine advanced by the counsel on the other side. This last company supplied the American plantations with slaves, and also the Spaniards, as we find in the reign of William & Mary; in 1688 they entered into a contract with Spain for supplying their West-Indian possessions with slaves. Until 1698 the slave trade was carried on under the auspices of the English government, and was a monopoly until that time, when a law was passed (9 and 10 W. III. ch. 26,) granting liberty to all the king's subjects to trade on paying 10 per cent. to support and repair the forts and castles on the African coast. In 1709, 1711, and 1712, the parliament declared that this trade should be open to all the subjects of the realm. In the treaty of Utrecht in 1713, there is an express stipulation, that 4800 slaves should be annually supplied to the Spaniards. In 1726, (13 Geo. I ch. 8,) the trade to Madagascar was opened to the South Sea Company, with the consent of the East India Company; their ships were not prohibited by this act from coming to Great Britain with slaves, though the act rendered it unnecessary [**47]  that they should touch there. This trade in the year 1748, was found to be an extremely beneficial one, and in that year the Royal African Company relinquished their charter. The trade to the coast of Africa was afterwards, in 1750, opened to all the subjects of the realm, by the act of 23 Geo. II ch. 31; and two years after this act, the Royal African Company were divested of all their forts, castles, &c. by the statute of 25 Geo. II. ch. 60. and compensation was made to them for any loss which they sustained. In estimating this loss, all the negroes which belonged to the company were considered in the same light in which their other property was viewed, and therefore as transferable from one person to another. In 1765 the parliament passed another statute, (5 Geo. III.) vesting in the crown the property in all the forts, castles, &c. upon the coast of Africa, and repealing all the former statutes upon that subject; yet by this law the slave trade was still left open and free to all the subjects of Great Britain, who might choose to engage in it. Again in 1766 another statute, (5 Geo. III. ch. 49. s. 5, 12,) passed, laying duties on the exportation and importation of slaves from and [**48]  into the British West India Islands, and the American Plantations. Thus we find, that this trade has not only been sanctioned, but encouraged by the parliament of Great Britain, from the year 1585 down to the present time. By the statute 5 George II. ch. 7. s. 4, negroes are made liable for the payment of debts. They are viewed in the same light as other property liable to execution, and always to be valued and considered as assets in the hands of an executor or administrator. Before the year 1663 we had negro slaves in this country. This is evident from the act of assembly of that year, ch. 30, speaking of negroes and other slaves, already imported, &c. and these negroes, being slaves, were deemed as property, and transferable from one owner to another. This right to them too, is not considered by the law as depending on contract or consent, more than the right which any man has to his horse, or to any other description of property which he may possess. Slavery originated ex jure gentium by reason of captivity.--Hob. 99. That it has existed almost universally, and in all ages, I refer to the Mosaic law. In adverting to the decisions in Great Britain upon the subject of slavery, or [**49]  the holding of negroes as property, the first case I will notice is that of Butts vs Penny, (2 Lev. 201, S. C. 3 Keb. 785.)--Here the court decided, that trover will lie for negroes. This decision was in 29 Car.II. in B. R. (1677,) and upon the ground that they were bought and sold as merchandise. In 3 Lev. 336, Chambers vs. Warkhouse, in C. B. 4 W. & M. (1702,) this decision is recognized. The court did not distinguish, and could not, between negroes and other goods or chattels. The special verdict found that they were bought and sold as merchandise. In Barrington on Statutes, 240, (notes) in his observations on the Statute of 1 Rich. II. (1377,) says, "it is laid down that trover will lie for a negro in 2 Lev. 201, and it seems to be agreed by two cases in Salkeld's Rep. 666, that some kind of action will lie for a negro, though not an action of trover. I cannot say indeed that these cases are well reported. The term slave is certainly not unknown to our law, as by 1 Edw. VI. ch. 3, a vagabond and idle servant is to become a slave to his master, and the expression is frequently repeated in that statute." In the case cited in 1 Ld. Raym. 147, (Gelly vs. Cleve,) we must suppose there [**50]  was a special verdict finding the negro boy an African and a heathen. This decision was in 1693, (5 W. & M.) In 1749, Lord Hardwicke, sitting as chancellor, recognizes the doctrine that trover would lie for a negro slave. And we find that it was the opinion of Sir Philip Yorke, and lord chief justice Talbot, in 1729, that if a negro did go over from any of the plantations, he was not emancipated thereby, Lofft, 19. The case in Carthew, 396, Chamberlain vs. Harvey, (1695,) is cited to prove that trespass will not lie. This case is reported in 5 Mod. 182, and the special verdict set forth, wherein it is declared, that by a law of Barbadoes, negroes should be considered as real estate, and descendible as such, after purchased by the planters. Upon this special verdict it was correctly determined, that trespass would not lie for taking real property. This case does not support the principle of a negro slave becoming free on landing in England. This special verdict was taken for the purpose of making the decision according to the lex loci. In 15 Viner, tit. Negro, 549, S. C. Held, that trespass did not lie for a negro, because not a chattel. 1 Ld. Raym. 146, S. C. held that trespass did [**51]  not lie for taking a negro slave in England, unless with a per quod servitium amisit; and the same reason is given. What is stated to have been said by Lord Holt was extra judicial--a mere dictum of his own, and is no authority; for it is laid down that an extra judicial opinion is not to be taken as authority; that an opinion not necessary to be given in deciding a cause is a mere dictum, and is not obligatory--Vaugh. 382. The case of Smith vs. Brown in 2 Salk. 666, S. C. Holt's Rep. 495, is also relied on by the opposite counsel. This was the mere dictum of Lord Holt in 1704, and as before shewn, is not entitled to the weight of authority more than as the opinion of a single judge; and we see that afterwards, in 1749, it is expressly contrary to the opinions of Sir Philip Yorke, Lord Ch. J. Talbot, and Lord Chancellor Hardwicke. But the decision, to call it one, does not contradict former ones. It is not stated in the case that the negro was sold as merchandise. The declaration states no right on common law principles, and the laws of a foreign country could not be noticed unless set forth. According to common law principles, an action could not be brought for a man; and therefore [**52]  indebitatus assumpsit would not lie for the price of one; yet it is undeniably a principle of that law, that "all rights acquired shall be supported." And if the declaration had stated the law of Virginia, the action would have been sustained. Upon examination, the case of Smith vs. Gould, in 2 Salk. 666, 667, also relied upon, does not sustain the principle now contended for. This case is most accurately reported in 2 Ld. Raym. 1274. The judgment was by default, and there was no verdict as is stated in Salkeld. Nothing was stated in the declaration but that the man was a negro; whereas it ought to have appeared that negroes were bought and sold as merchandise by the usage of merchants, and according to the laws of the plantations. The case went off upon the same ground as that of Smith vs. Brown, for defect in the declaration in not setting forth how the right to the negro was acquired, thus to avoid the operation of the maxim of the common law that an action will not lie for a man. That trover will lie for a negro slave will be seen in 1 Freeman, 452, and 1 Vernon, 450, where Kelyne, Vaughan, and Ch. J. North, all recognize the principle of trover lying for a negro slave. The law [**53]  of nature is the law of God, impressed on the heart of man; and Lord Holt, in the case of Smith vs. Brown, admits that a certain sale of a negro would have been a good consideration; if so, then it is not against the law of nature and of God. Every case which has been cited maintains the position, that the master has an interest in the negro, and is entitled to his services; that property once acquired cannot be divested unless by the misconduct of the owner; and that he has a right to the perpetual service of his negro.--1 Blk. Com. 127, 424, 2 Blk. Com. 402. This is all that we insist upon in the present case. But it is said, (1 Blk. Com. 424,) "the law will protect a slave in his person and his property; yet with regard to any right which the master may have lawfully acquired to the perpetual service of the slave, this will remain exactly in the same state as before." This is absurd. How can a slave acquire and hold property? How can the law protect what was not to be protected? By Magna Charta, ch. 30, all merchants are allowed free ingress and egress, and their property is guaranteed to them, whilst they remain in the realm. "And thus the protection of foreign merchants, (says [**54]  Montesquieu) is an article of their national liberty." The same principle is recognized by 14 Edw. III. In 1381, (5 Rich. II. ch. 2,) all merchants and strangers were permitted to come to England to merchandise, and their goods and chattels are protected. This is the undisputed rule or principle of law in Great-Britain now, and ever has been since Magna Charta.--1 Blk. Com. 135. Negroes, we contend, are property, and merchandise, and are sold as such. By the statute 5 George II. ch. 7, they are considered as property, and made answerable for British debts. Goods under an act of parliament are permitted to be exchanged in Africa for slaves; the transfer there to the buyer is complete, and he acquires his slaves as merchandise; and as such, under every principle of law, justice and common honesty, his property thus obtained, is and ought to be protected.

A case has been put of the wreck of a ship on the coast of England, and another of slaves escaping and getting to England. In either case, as the property vested in the owner under the sanction of acts of parliament, it would be protected as much as any other species of goods or chattels, or any other kind of merchandise whatever.  [**55]  In Somerset's case, (Lofft's Reports, 9,) it is very evident that Lord Mansfield waivered much and was very undecided in his opinion. He observes, "much consideration is necessary; the court must consider the great detriment to proprietors. The statutes of the realm have interfered for the maintenance of the trade in slaves, and the transferring of slavery." "A right of compulsion there must be, or the master must be under the ridiculous necessity of staying here to have their service, or must be quite deprived of those slaves he has been obliged to bring over." In giving his opinion, (page 17,) his Lordship said, that he advised an accommodation; and he still shewed great hesitation and indecision. This case therefore should not be suffered to shake the principles recognized in other decisions, and fairly deduced from acts of parliament, and maxims of law coeval with the existence of the common law. The case of Somerset was decided upon the return of a writ of habeas corpus. Suppose a soldier were to desert, and he was seized without application to the government, he would on a habeas corpus be released. We admit that the decision of Lord Mansfield divested the master's right; yet [**56]  we contend that the moment the master and slave left England, the master's right revived. Suppose a man has a right to kill his child in China; if he goes to England he cannot exercise the right there; but if he returns to China, the right revives to him. To prove that slavery may cease for a time and again be revived, cited Sullivan's Lectures, 317. If a villein becomes a monk, he is free; if he is deprived of his order and turned out of the convent, the master's right returns--1b. 318. So if a niefe marries a freeman, she thereby becomes free; if her husband dies, or she is divorced, her master's right to her service revives--Ib. 318. If a villein gets into the demesnes of the king, the master loses his right, but when he is caught out of the demesne, he is again in the power of his master--Ib. 319. So here, when the master of Joice returned with her to Maryland, or got her out of England, the right he had as master could be exercised, and she became his slave. The laws of England will not take notice of our municipal laws; shall we then enforce those of England? Suppose there is a law in England preventing wheat being imported into that country from America, and an American carries [**57]  wheat there, and lands it; by the law of England it is liable to forfeiture--But suppose he gets it on board of his vessel again, and carries it to France, has he not a right to his wheat? The court here are called upon to enforce British municipal regulations, and to disregard our own. The common law, at the time Joice was in England, was that trover would lie for a negro slave; and the case of Somerset was afterwards, and therefore is not applicable. Lord Mansfield may be charged with bending to the policy of the times--Wilks and Liberty; of which the young heated brain of Hargraves, who argued the case, was full; and Lord Holt, when he made the dictum spoken of, had a revolutionary ebullition of liberty in his brain. If subsequent decisions were to have a retrospect operation, it would create great uncertainty in property. And as to the impropriety of changing the law, and making different decisions, cites 1 P. Wms. 399, 452. It is better to stick to the known general rule; for it is dangerous to alter old established forms.--Ca. Temp. Tal. 26, 27, 195. The British air is supposed to electrify the flesh--putting a foot on the island, the nature is instantly changed, and if a slave [**58]  before, becomes thereby free. Suppose Joice was born before she was in England, or the African vessel in which she was, had stranded on the British coast, or she had run away; would all or any of these circumstances entitle the issue to freedom, being afterwards brought here and in the possession of their master claiming their services? Certainly not, we think. The acts of assembly of Maryland of 1663 and 1715, speak generally, that all negroes, and other slaves, imported into the province, without any restriction as to the place whence they are brought, and their issue, should be slaves for life. There was no emigration of free negroes from Africa at that time. Under those acts negroes might be imported from Great-Britain as slaves. Before the year 1663 there was the same commercial intercourse with respect to negroes as there was with respect to merchandise; and being a mere article of commerce, slaves could be smuggled and held in the same manner as any other goods or merchandise could be. The penal laws of one country cannot be enforced in another. Suppose a negro is stolen or kidnapped and brought to this country, could he not be sold and held as a slave? The act of assembly of [**59]  Virginia, passed in 1753, ch. 2. was not binding in Great-Britain; that act was made to prevent the slave from claiming his freedom in case of his return to Virginia. Lord Baltimore in loco of the seller of Joice, and he would have the same right as if she had been brought to this country by her first master. Her children born in England, if any, would be slaves. Property cannot be changed without there has been an adjudication, and the lex loci of one government cannot be enforced in another, without there has been an adjudication in the courts of that government. In this case there has been no adjudication produced, whereby Joice was declared in England to be free by any of the courts of that country. Shall the lex loci of another government be enforced in preference to our own? If a person carries his slave from this state to Pennsylvania, and remains there more than six months, and returns with his slave, the slave, it has been decided, shall not be free unless the courts of Pennsylvania set him free; although by the laws of that state such a residence entitles the slave to his freedom.

Fourth question, (on the fifth bill of exceptions.) By the act of 1663, ch. 30, all negroes,  [**60]  and other slaves, then imported, or which thereafter should be imported into Maryland, and their issue, are declared to be slaves durante vita. If Joice was here when this law was made, or if she was brought here since, she was a slave under this law, and her issue are now so.

It has been shewn, 1st. That evidence of a right was admitted improperly by the general court as evidence of a fact.

2d. That a special verdict has been admitted in evidence, when no judgment had been entered on it, and therefore not legal.

3d. That Joice, the ancestor of the petitioner, was not free by going to England; and if she was free there, when she left England she became a slave again.

4th. That the decision of the general court, as stated in the fifth bill of exceptions, is upon too broad a basis; for under the act of 1663 Joice and her issue were slaves.  

JUDGES:
CHASE, Ch. J., Rumsey, Ch. J., Mackall, Jones, Potts and Dennis, J.  

OPINIONBY:
CHASE; Rumsey; Mackall; Jones; Potts; Dennis 

OPINION:

 [*306]  CHASE, Ch. J. The court are of opinion, that they ought not to give the direction as prayed by the defendant's counsel: and do therefore refuse to give the said direction to the jury. The defendant [**61]  excepted to this opinion. The verdict and judgment being for the petitioner, the defendant appealed to the court of appeals. The case was argued in that court at June term 1802.

 [*322]  THE COURT OF APPEALS, [Rumsey, Ch. J. Mackall, Jones, Potts and Dennis, J.] gave the following opinion, viz. "The court disagree with the general court in their opinion in the third bill of exceptions. The court are of opinion, that the general court ought not to have permitted the special verdict, found on the first trial, which was set aside, (because a fact was not sufficiently found,) to be read in evidence on the second trial. They consider it a good rule, that on a second trial, no advantage or use shall be made by either of the parties of the first finding, or of the opinion of the court in setting aside that verdict, but that such second trial shall, as far as possible, be conducted as if no prior trial had taken place. The record before the court proves the propriety of the rule. On the first trial an objection was made by the defendant below to a deposition offered by the plaintiff, the general court overruled the objection, the deposition was read, and the [**62]  defendant's counsel then took an exception to their opinion. By granting a new trial, and admitting the verdict in evidence, the defendant there is deprived of the benefit of his exception, and he is liable to be affected by the verdict that may possibly in some measure have been influenced by the evidence excepted to.

 [*323]  As to the fourth bill of exceptions, the court are of opinion that the general court were right in their direction to the jury. It is merely stated that Ann Joice was in England, and came from thence, without shewing her condition previous to the period alluded to, whereby it doth not appear that she was ever held or claimed as a slave at any time, and it might be that she was a white woman, or native of England; presumption, when admitted, being in favour of freedom. In deciding this exception, the court do not think themselves at liberty to travel out of the exception, or notice any fact not therein stated.
Upon the fifth bill of exceptions this court disagree with the general court. It is in that exception stated "that Ann Joice, a negro woman, was carried with her owner, Lord Baltimore, claiming her as a slave, from the Island of [**63]  Barbadoes to England, and afterwards brought into this country by him, claiming her as a slave, between the years 1678 and 1681; and that she, during her life, was held and treated as a slave, and that her issue have been held as slaves ever since." It is not stated that her case was ever before a British or any other tribunal, or had received a judicial decision.
Great industry hath been used, and great ability displayed by the counsel, in the argument of this cause. The decision, involving on the one hand the question of freedom or slavery to the plaintiff below, and on the other great pecuniary interests to persons claiming negroes under similar circumstances, demanded it.
The court have felt the importance of the subject, and given it their most serious consideration. If this case was before a British court, it would seem, that the question should be decided according to the British law, as it stood between the years 1678 and 1681, and not by the law as it may have been modified or altered subsequent to that period. No adjudged case in the British books hath been cited, nor have the court been able to find one coming up to the case in the exception. Opposing cases as well as [**64]  opinions of particular judges and law writers, have been cited as applicable to the case. About the period of Ann Joice's being in England, a diversity of opinions prevailed on that subject. At one period it was held by a judge, that a slave, by being brought to England thereby became free. Sometimes it hath been held that trover would lie, at other times that it would not; that the sale of a negro was a sufficient consideration to support assumpsit to pay the price; that a master, deprived of his slave, might support an action per quod servitium amisit. By British charters, and British acts of parliament, the slave trade hath been authorized and 

 [*324]  encouraged, and slaves have been considered there as merchandise, as chattels, as property, and have, by a British statute operating in this state, been subjected to be sold and disposed of as other property for the payment of debts. Lord Chief Justice Talbot, and Sir Philip Yorke, in 1729, expressly declare, that a slave coming from the West-Indies, with or without his master, to Great-Britain or Ireland, doth not become free, and that his master's property or right in him is not thereby determined or varied, &c.  [**65]  And that his master may legally compel him to return. This opinion is recognized by Hardwicke, acting as chancellor, in 1749, and that trover would lie for a negro. Judge Blackstone in his Commentaries, in 1765, (11 edition, vol. 1, page 127,) says, that a slave or negro the moment he lands in England falls under the protection of the laws, and so far becomes a freeman; though the master's right to his service may probably still continue. And in page 424, repeats the same, and adds, that the law will protect him in the enjoyment of his person and property; but yet with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same subjection for life, which every apprentice submits to for the space of seven years or more, &c.
In the British books slaves are sometimes called slaves or servants; and it is said by Lord Mansfield in Somerset's case, that there may be a villein in gross by confession. In the case of Somerset in 1772, Lord Mansfield mentioned the opinions of Sir Philip Yorke, and Lord Chief Justice  [**66]  Talbot, in 1729, and recognized by Lord Hardwicke in 1749, and calls them two of the greatest men of their own or any times, and says he pays all due attention to their opinions. Lord Mansfield puts several questions as to the law with respect to their settlements, their wages, actions for any slight coercion by their masters. In Somerset's case the court declined deciding the question, whether by being carried to England he thereby became free; but say, that they would judge upon the return of the habeas corpus, and according to their own laws, which did not admit of so high an act of dominion as in that case had been exercised by the master over his slave, and therefore that Somerset must be discharged. Lord Mansfield, in Somerset's case, says, that the state of slavery is so odious that nothing can be suffered to support it but positive law.
In this collision of individual opinions, and opposing decisions, in the British books, this court will not say what would have been the decision of a British tribunal 

 [*325]  on the question stated in the exception; and acting as a court of an independent country, unfettered by any political stipulations [**67]  on subjects of this nature, and bound to decide according to the laws of this state, they do not consider themselves at liberty to adopt an opinion that might possibly prevail in a foreign tribunal.
By a positive law of this state in 1715, then the province of Maryland, the relation of master and slave is recognized as then existing, and all negro and other slaves, then imported, or thereafter to be imported into this province, and all children then born, or thereafter to be born, of such negroes or slaves, are declared to be slaves during their natural lives.
This case, being brought before the court by original proceeding, we are of opinion that it must be governed by the law of this state; and that in this case, however the laws of Great Britain in such instances operating upon such persons there, might interpose so as to prevent the exercise of certain acts by the master, not permitted, as in the case of Somerset; yet upon the bringing Ann Joice into this state, then the Province of Maryland, the relation of master and slave continued in its extent as authorized by the laws of this state; and therefore that the judgment of the general court must be reversed. As to the [**68]  other bill of exceptions, (the first) this court concur with the general court.
The second bill of exceptions not being before the court, no opinion was given thereon.
JUDGMENT REVERSED, and procedendo awarded.  

37 of 37 DOCUMENTS 

GRIFFITH vs. GRIFFITH'S Executors.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 101; 1798 Md. LEXIS 1 

May, 1798, Decided 

PRIOR HISTORY:
 [**1]   ACTION of replevin, removed by certiorari from Harford county court.

The case stated for the opinion of the court, admitted that Samuel Griffith, on the 12th of January 1794, made and published in writing, his last will and testament, agreeably to law, containing amongst others, the following devise: "Fourthly. I desire my wife Martha Griffith, should have the use and benefit of my farm on Swan Creek during her widowhood; provided she claims no thirds of my land in Rumney Neck, and that she commits no waste of timber, which will be left to the discretion of my executors and trustees hereafter named; and after which period the aforesaid farm to be sold, and the money equally divided between my eight children," &c.

There was no other devise, or any bequest to his wife. His estate, real and personal, he devised and bequeathed to his children; and the residue of his estate, not particularly devised, he directed to be equally divided between his three daughters.

It was also admitted, that the said Samuel Griffith departed this life in the month of March, in the year 1794; and that on the 24th of June 1794, the said will was proved in due form of law, before the register [**2]  of wills for Harford county, and letters testamentary were thereupon committed to the defendants, who took upon themselves the execution of the office of executors thereof.

It was also admitted, that the plaintiff was the widow of the said Samuel Griffith, and did not make any renunciation of the said will; and the property in the writ and declaration in this cause mentioned, was delivered to the plaintiff by the defendants, as executors aforesaid, and was part of the personal property of the said Samuel Griffith, which came to their hands as his executors, and was delivered to the plaintiff by the defendants, to be held by the plaintiff as part of her thirds of her husband's personal estate, if by law she was entitled to the same.

And if upon the whole matter the court shall be of opinion, that the plaintiff, as widow of the testator Samuel Griffith, and against his will aforesaid, is entitled to one third part of the said testator's personal estate, after payment of debts, then judgment to be entered for the plaintiff for the property in the declaration mentioned, and one shilling current money damages, and costs; but if the court should be of a different opinion, then [**3]  judgment to be entered for the defendants for a return, &c.  

DISPOSITION:
Affirmed.  

COUNSEL:
Winchester for the plaintiff.--In this case the testator, by his will, devised to his widow, (the plaintiff) a part of his real estate, expressing that such devise should be in lieu of her dower in certain other part of his real estate. He did not bequeath to her any portion of his personal estate, but bequeathed the whole of it to his children; nor did he express that the devise to his widow was in lieu of her third part of his personal estate; nor has the widow renounced the will; and the question for the consideration of the court is, Whether or not the widow is entitled to one-third part of the personal estate?

Upon an examination of the various acts of assembly which have been passed upon the subject of the estate of deceased persons, it appears, by the act of Feb. 1638, ch. 20, that the widow of a deceased intestate was entitled to one moiety of the personal estate, after payment of debts, &c. if the deceased left a child or children; but if he left no child or children, the widow was entitled to the whole. The act of 1642, ch. 16, contains a similar provision if there be but one child of the deceased [**4]  intestate; but if more than one child, then the widow should be entitled to one-third. By the act of 1671, ch. 27, the widow of the intestate is allowed one third part of the personal estate, after debts, &c. are paid, and the rest to be divided amongst the children of the deceased. The act of 1681, ch. 2, contains a similar provision; and so do the acts of 1692, ch. 3, and 1699, ch. 41. In the last mentioned act of 1699, ch. 41, it is enacted, "That it shall be at the election of such widow's having devises as aforesaid, a to take and receive the same in full satisfaction of all claims and rights to both real and personal estate, and to be thereby barred for ever from all claims to the same; or to refuse such legacies and devises as aforesaid, and take their third part of the personal estate, as widows whose husbands die intestate in this province." The act of 1704, ch. 20, and 1715, ch. 39, s. 4 & 6, contain precisely the same provisions, whereby the widow is allowed one-third part of the intestate's personal estate, after payment of debts, &c. if there be a child or children; but if there be no child or children, then she is entitled to one half; and by the acts of 1719, ch. 14,  [**5]  s. 4, & 1729, ch. 24, s. 19, if there be no children, nor descendants of such children, nor a brother or sister of the intestate, nor children of such brother and sister, then the widow shall be entitled to the whole. By the acts of 1704, ch. 20, & 1715, ch. 39, s. 35, it is stated. "And whereas many men have bequeathed and devised, or hereafter may bequeath or devise, to their wives, by their last wills, a considerable part of their personal estates, intending, no doubt, but not expressing that such bequest or devise should be in full of such wives part, portion, or third part of the said testator's estate; and yet such wives, widows and relicts, have not only claimed such bequest and devise as legacies, but have further claimed their part of the remaining estate of their deceased husbands;" it was therefore enacted, "that in such case, where the testator bequeaths or devises a considerable part of his personal estate to his wife, and it appears not in any part of his will or codicil that he intended the said devise as a legacy to his wife only, and that she might nevertheless have a third part of his remaining estate, that it shall be at the election of such wife, widow or relict,  [**6]  within forty days after the probate of such will, to make her election before the judge for probate of wills, or the respective deputy commissaries in each respective county, whether she will be content with such devise, or will have her thirds, and release the devise. And if she make choice to have what is so bequeathed or devised to her, then, by that choice, she shall be forever barred from claiming her third part aforesaid; and if she renounce what is so bequeathed and devised, she shall then have her third part aforesaid, and be barred of her devise, but shall not claim or have both; but in case such widow shall neglect to make such election within the time aforesaid, she shall then be concluded by having a full third part of clear personal estate of her deceased husband, besides her dower of his real estate, in full of all such devises or legacies; provided always, that such part of the personal estate be liable to pay the debts of the deceased as other part of the estate is, or ought to be." But by the act of 1729, ch. 24, s. 10, it is enacted, "that if the widow neglect making such election within the forty days, she shall then be concluded by the bequest, and shall not have [**7]  or claim any more of the personal estate than shall be so bequeathed." By the acts of 1704, ch. 20, and 1715, ch. 39, s. 36, it is also provided, that where any part of the real estate is devised to the widow, she shall make her election within forty days, whether she will accept the devise or her dower; or she shall be concluded by the devise and barred of her dower.

a It is not mentioned in the act what devises are meant.

By the act of 1638, ch. 16, "a widow, immediately after the death of her husband, (if she hath no jointure) shall be admitted tenant during her life to one third part of all the land whereof her husband was seised at any time during the coverture, except in cases where she hath acknowledged a fine, or joined with her husband in making of leases; and she shall tarry in the chief house of her husband during her widowhood." And by the act of 1642, ch. 17, "the widow shall succeed to the thirds of the lands, and to the mansion-house, to hold it during her widowhood, as her husband was seised of at any time during the coverture, in such manner as she may by the law of England."

The act of 1641, ch. 3, enacted, "that the lieutenant-general, &c. shall [**8]  prove wills, and grant administrations, and exercise all temporal jurisdiction to testamentary causes appertaining, and shall do, or cause to be done, right to all persons in all such causes, according to the law of the province, and in defect thereof, according to the law or laudable usage of England, in the same or like cases; and where the same is silent, according to equity and good conscience." By the act of 1642, ch. 4, right and just, in all civil causes, to be determined according to the law, or most general usage of the province since its plantation, or former precedents of the same, or the like nature. In defect of such law, usage or precedent, then according to equity and good conscience; not neglecting (so far as the judges shall be informed thereof, and shall find no inconvenience in the application to this province,) the rules by which right and just useth and ought to be determined in England in the same or the like cases. By the act of 1662, ch. 3. in all cases where the law of this province is silent, justice to be administered according to the laws and statutes of England, if pleaded and produced, and all courts to judge of the right pleading and inconsistency of [**9]  said laws, with the good of this province, according to the best of their judgment, skill and cunning. The act of 1663, ch. 4, is to the same effect; it was repealed by the act of 1676, ch. 2, but was revived by the act of 1678, ch. 15, and continued until 1684, excepting the clause so far as the court shall judge them not inconsistent with the condition of the province. In the acts of 1681, ch. 2, and 1692, ch. 3, it is stated, that "forasmuch as certainty is the mother of repose, and that our dependence upon England obligeth us to make all our laws as near as may be consonant to the laws of England," it was enacted, "that the judge for probate of wills, and granting administration, within this province, in all causes relating to probate of wills, and granting administration, shall proceed according to the laws of England now in force, and hereafter to be in force, within 12 months after such laws shall be published in the kingdom of England, if pleaded before him here; saving in such cases as shall in this act be limited, or shall hereafter be limited, by act of assembly of this province, as utterly impracticable in this province."

Thus the court are put in possession of the [**10]  several acts of assembly of the province having any bearing upon the subject before the court.

It has always been supposed that the wife was entitled to a third part of her husband's personal estate against his will, and reason and justice are in favour of her claim. The general law of England, and the custom of particular places, allowed the wife a third of the personal estate, if the deceased left children. In the acts of 1704 and 1715, is recognised the common usage of allowing to the widow a third part of her husband's personal estate.

In treating of this subject, Blackstone says, "that by the common law, as it stood in the reign of Henry II. a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children the wife was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts;  [**11]  and the writ de rationabili parte bonorum was given to recover them. This continued to be the law of the land at the time of Magna Charta, (9 Hen. III. A. D. 1225,) ch. 18, which secured to the wife her reasonable part, after the king's debts were paid. In the reign of Edward III. this right of the wife and children was still held to be the universal or common law, though frequently pleaded as the local custom of particular countries; and Sir Henry Finch lays it down expressly in the reign of Charles I. to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed, Sir Edward Coke (2 Inst. 33,) is of opinion, that this never was the general law, but only obtained in particular places by special custom; and to establish that doctrine he relies on a passage in Bracton, which in truth, when compared with the context, makes directly against his opinion. For Bracton lays down the doctrine of the reasonable part to be the common law, but mentions that as a particular exception, which Coke has hastily cited for [**12]  the general rule. And Glanvil, Magna Charta, Fleta, The Year Books, Fitzherbert and Finch, all agree with Bracton, that this right to the pars rationabilis was by the common law, which continues to be the general law of Scotland. To which may be added, that whatever may have been the custom of later years in many parts of England, or however it was introduced in derogation of the old common law, the ancient method continued in use in York, Wales, and in London, till very modern times; when in order to favour the power of bequeathing, and to reduce the whole king dom to the same standard, three statutes have been provided, 4 and 5 W. & M. ch. 2, explained by 2 & 3 Ann. ch. 5, for York; 7 & 8 W. III. ch. 38, for Wales; and 11 Geo. I. ch. 18, for London; whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part [**13]  or moiety."--2. Black. Com. 493.

The right of the wife to a third part of the personal estate of her deceased husband, is a common law right, and the action of rationabili parte bonorum lies for her against the executors of her husband--18 Viner, 158.

In different parts of England particular customs prevailed, which controuled the general law of intestacy. Of all these customs, that which gave a third to the wife, another to the children, and a third to the deceased, and in case of only a wife, or only children, the half, was most frequently met with. Indeed this claim of the wife and children, where it prevailed, had been carried still further. It had been construed to be such an inherent right in them, as to restrain the power of disappointing them of this reasonable part of the goods by will; the possessor, it was contended, having a power of disposing by will of nothing but his portion, or dead man's part. The question had all along been, whether this was a common law right, or one supported only by the special custom of different places; and the last determination, in the 40th year of the reign of Edward III. seems to countenance the latter opinion. Conformably with [**14]  those decisions, we find an action in the 28th year of the reign of Henry VI. and another in the 7th Edward IV. against an executor for a reasonable part, where a special custom of a county is alleged. There is an instance of one action, which was grounded upon the usage generally, without stating it to be of the realm, of any county or place--30th Henry VI. If we look a little further on in the judicial history of England, we find it laid down positively, by Fitzherbert and others, in the reign of Henry VIII, that this claim of the wife and children was by the common law that prevailed through the whole realm; and that the action de rationabili parte might be maintained against the executors; so that the power of making a will was, in case of leaving a wife or children, confined to the dead man's part. This opinion seems to be strenuously maintained by Brooke, some time after the reign of Henry VIII. 4 Reeves Hist. Eng. Law, 82, 83. Brooke Rationabili pars. 7.

The right of the wife to a third part of her husband's personal estate, under a general or particular custom, was never disputed. That right was extended to Maryland as the common law, and has been invariably adhered to [**15]  as such. If such right was not the common law at the time of the colonization of the province, the acts of 1704 and 1715 recognize the usage, and they are to be considered as a recognition and restoration of the common law.

In the case of Worthington and wife, and Hood, vs. Hood's executor, in the court of chancery April 1795, Chancellor Hanson, in giving his opinion on one of the points "which did not to him appear involved in any doubt or difficulty, declares, that in his opinion Elizabeth Hood, the relict of John Hood, was entitled to one third part of his personal estate, supposing the matters stated in the bill and answer to be true; that is to say, if a testator devises or bequeaths nothing to his wife, there is no necessity for her to renounce his will, in order that she may be entitled to one third part of his personal estate absolutely, and of his real estate during her life. In such a case the widow has nothing to renounce; her husband having as to her, died intestate."

The devise of the part of the real estate to the plaintiff cannot conclude her as to the personal estate. The act of assembly has an express relation, as well to the real as to the personal estate,  [**16]  and requires a disposition of part of each to her to divest her right to both. The widow in this case not having renounced the will, is concluded as to the real estate devised to her; but there being no devise to her of any part of the personal estate in her husband's will, there was no necessity for making an election as to the personal estate, nothing being given; and therefore she is entitled to one third part of the personal estate clear of debts. This right is fully recognized in the acts of assembly of 1715 and 1729, and is only to be defeated where the husband devises to his wife a part of the personal estate, and she does not make her election within the time prescribed by law.

Martin, (Attorney General,) for the defendants, contended, that the wife gains no part of her husband's property during his life; but upon his death intestate, she is entitled to one third part of his personal property which remains after payment of debts, if he left issue; but if he left no issue, she is entitled to one half. But the husband, if he thinks proper, may devise such estate from her. This right of the wife is founded upon the statute of distributions. By the death of the husband the [**17]  wife becomes entitled, during her life, to one third part of the real estate of which the husband was seised during the coverture. This estate is termed dower; of this the husband cannot deprive her by will; nor can be by any conveyance, unless her consent is given by joining with him in the conveyance, and acknowledging it on a private examination. But it is different with respect to personal property; for he can dispose of that in his life-time without the consent of the wife; and if so, there is no reason why he cannot do that by will which he might do in his life-time by gift or sale without her consent, and prevent her from receiving any portion of it.

The right of the wife to the third part of the personal property of her husband must depend on the common law, or on the acts of assembly. The acts of assembly, it is admitted, do not apply to the case. The common law of England is the common law of Maryland. It has no other common law, and is not entitled to any of the local customs of England. The common law is founded on statutes, is known by the writers on the law, and by the decisions of the courts of justice. Customs to prevail, must be from time immemorial, and then [**18]  they become laws. The common law of England was adopted in Maryland as it stood at the formation of our government, and it never did deprive the husband of the right to dispose of his personal estate.

The writ de rationabili parte bonorum lies by the wife against the executors of her husband, where she cannot have the third part of her husband's goods after the debts are paid, and funeral expenses performed; and Fitzherbert 284, observing on this writ, says, that it seems by Magna Charta ch. 18, that this was by the common law; yet (he observes) the writs in the register rehearse the customs of the counties, and cites authorities, to shew the writ was founded on the customs of particular counties.

Heirs, says Glanville, were bound to observe the testaments of their fathers, and to pay all their debts. For every freeman, not incumbered with debts beyond the amount of his effects, might make a reasonable division of his property, by will, so as he complied with the customs of the place where he lived; one of which was, first, to remember his lord by the best and principal chattel; then the church; and after these, he might dispose of the remainder as he pleased. However the [**19]  customs of particular places might lay this restriction upon wills, no person was bound, by the general law of the kingdom, to leave any thing by will to any particular person, but was at liberty to act as he pleased; it being a rule of law, that ultima voluntas esset libera. But Glanville thought it would be a proper testimony of affection and tenderness for a husband to give to his wife rationabilem divisam, that is a third part of his effects, this being what she would be entitled to, if she had survived him; and it seems that it was not unfrequent to give a sort of property to their wives in this third part, even during the coverture. But Glanville, after having expressly laid down, that, by the general law of the kingdom, no person was bound to leave any thing by will to any particular person, and that the third part left to the wife was dictated rather by a moral than legal obligation, he goes on in the following remarkable words: "When a person is about to make his will, if he has more than enough to pay his debts, then all his moveables shall be divided into three equal parts; of which one shall go to the heir, another to the wife, the third be reserved to himself, over which [**20]  he has the power of disposal as he pleases; if he dies without leaving a wife, a half is to be reserved to the testator."--1 Reeves Hist. Eng. Law, 111, 112. By Magna Charta, ch. 18, after the king's debts are satisfied, the residue is to remain to the executors, to perform the will of the deceased; if nothing is due to the king, then all the chattels are to go to use of the defunct, (that is, to his executors or administrators,) saving, says the statute, to the wife and children their reasonable parts; the latter part of which provision does not seem to remove any of the difficulties which were before noticed in the text of Glanville--1 Reeves 243, 244. 2 Inst. 32, 33.

In the first year of the reign of Edward II. a writ de rationabili parte was brought by a son against his father's executors, for ten marks of the property of the deceased, who died worth thirty; alleging, that, because par usage de pais. the third part ought to go to the deceased, a third to his widow, and a third to the children unmarried, therefore he, as son, demanded his third. To this it was pleaded, that he had been advanced by a lease of lands from his father of such value, and therefore the action would [**21]  not lie. The plaintiff admitted this in his replication, but said the land was worth only so much, and therefore he ought to maintain his action. However, it was decided against him, as the action was grounded wholly upon usage and want of advancement. So that this writ, notwithstanding what was argued, as to the declaration of Magna Charta, which was contended to be general and absolute, was held by the court to be founded on the particular custom of a certain place. Again, we find in the 17th year of Edward II. a writ of detinue of chattels was brought by an infant against his father's executors, reciting, that per consucludiuem regni, the mother was to have a third, the children a third, and the executors another third, &c. To this the defendant pleaded pleinment administre. One of the justices took up the matter, and expressed a doubt whether the action would lie; for says he, the writ is founded on a custom, but we know no such custom, and the law is otherwise. And when it was urged that the custom was good, as appeared by Magna Charta in these words, salvis uxoris et pueris suis rationabilibus partibus suis, he replied, that the Great Charter only saved to the children their [**22]  own goods, which might happen to come into the hands of the father; but neither the Great Charter nor the common law restrained the father's power over his own effects, to give or devise them as he pleased. It was added by another, that he had often seen such writs, but never knew one of them maintained; so the plaintiff was nonsuit. This was the opinion in the reign of Edward II. respecting the power of bequeathing, where a wife and children were left by the testator. These two cases may be construed as a clear confirmation of the law as laid down by Glanville. The latter, which applies to the general law of the kingdom, certainly supports that author's declaration, quod ultima voluntas esset libera. The former may be thought to explain the other passage in Glanville, which qualifies, if not contradicts that general rule; and may, perhaps, serve to shew, that Glanville should there be understood to speak of certain local customs; which interpretation, however, does not seem warranted by the present state of that author's text.--2 Reeves 334, 335. These actions, notwithstanding the above decisions, continued to be brought, and were variously treated by the courts. The point upon which [**23]  this question rested, seems to have no other authority in the law books than a chapter in Magna Charta, and a passage in Glanville. The chapter of the Great Charter is not directly upon the subject of distributing the effects of deceased persons; but having ordained a surer method of levying the king's debt, it adds, as a security to the subject, that all the rest shall belong to the dead person, saving their reasonable parts to the wife and children; a saving which seems sufficiently necessary, if it were only on account of the particular customs in some counties, and other places, which required a man always to leave something to his wife and children, and which would otherwise have been abrogated by the general scope of the former provision. It does not, therefore, seem a necessary conclusion from thence, that such a distribution of the effects was the general law of the kingdom. As to the passage in Glanville, there seems in it an ambiguity, if not a contradiction. That author might be quoted as well in favour of as against the proposition, that it was the general law of the kingdom for a man's wife and children to be entitled to a proportion of his effects, notwithstanding a will.  [**24]  Upon these authorities, together with the determinations mentioned in the reign of Edward II. stood this question, when it underwent the following discussion: In the third year of Edward III. an action of detinue, brought by a husband and wife against the executors of the wife's father, for her child's portion; it was laid upon the custom of the county of Northampton, and she alleged she was not advanced by her father. The cause went off upon the issue, whether married and advanced by her father, without any question arising about the point of law. In 17 Edward III. such a writ of detinue was brought by a baron and feme, for her reasonable part of her former husband's goods, against his executors; which writ made mention of the custom of the realm; but went off upon another point. In the 30th of Edward III. there was another writ of detinue. It was objected to this writ, that it made mention of common usage through the whole realm, which could mean nothing but the common law; and if it was the common law, he might have a simple writ of detinue. That such a writ had been abated; meaning no doubt that mentioned in the 17th Edward III. It was argued, that in that case the writ was abated,  [**25]  because it purported to be founded on the Great Charter. In like manner, should a woman bring a writ of dower, and demand a moiety, if the custom was comprised in the writ, it would be bad; and therefore she should make her demand in the writ generally, and upon that should shew special matter to maintain her demand: So it might be here, and the plaintiff might count according to the case. One of the clerks having shewed a writ brought by an infant not advanced, containing all the matter of this writ, which he said, was held maintainable, the debate upon the form of the writ rested. And when the executors began to resort to other points, namely, that they were to account before the ordinary, and that this question of distribution belonged rather to the spiritual than the temporal court, they were told they were not to plead to the jurisdiction, after they had objected to the writ; so that, upon the whole, it should seem as if the writ was there approved of. The next action that appears in the books, was grounded upon the custom of the county of Sussex, which was stated as allowing a reasonable part of the intestate father's goods to go to the son; but this being upon an intestacy,  [**26]  led to no debate upon the before mentioned point; though it was said, this custom precluded the father from making a will in prejudice of his wife and children. On that occasion, it was said, that this writ, in case of intestacy, had always been admitted by the ordinary. The next is in the 40th Edward III. This is grounded upon the custom of a vill, by which the children were to have a reasonable part of their father's goods; but it does not appear whether it was brought against executors, or upon an intestacy. However the defendant set up an advancement as a plea in bar; to which the plaintiffs replied, the gift mentioned was only a reversion, and therefore no lawful advancement to bar their reasonable portion. The defendant said it was, and demanded judgment, which drew from the bench the following observations: Thorpe, one of the justices said, How can we give judgment, when you have accepted an action which is contrary to the law, and have pleaded matter in affirmance of it? And Mowbray, another justice, said, The lords in parliament would never grant that this action should be maintainable by any common custom, or law of this realm. But as the plaintiff had not pleaded to the [**27]  writ, the justices took time to advise what should be done. The writ in question being grounded on a particular custom, and it not appearing whether it was brought in the case of a will, or of an intestacy, we are left quite at a loss for the grounds on which the judges pronounced the above mentioned opinion; for though there might be arguments against such a general custom, or against alleging it in the writ, it is difficult to say that such a particular custom might not be good; though Thorpe doubted of it in the former case from Sussex, saying, it was hard to restrain a man from making a will of his own effects. Thus the law stood at the latter end of the reign of Edward III. as it did at the close of the former; and conformably with this opinion against the writ, it is not inserted in the old Natura Brevium, which has only the writ of right de rationabili parte. It is remarkable that this writ of right is omitted in Fitzherbert, and the writ of detinue now in question adopted, under the denomination of de rationabili parte bonorum. It seems strange, that a question of so extensive importance, and so frequent recurrence, as the disposition of a deceased person's effects, whether [**28]  by will or administration, should remain a doubtful case at this time. Perhaps the jurisdiction which the spiritual court had exercised over testamentary matters, tended to keep this point of law in obscurity, and undecided. After all, it is difficult at this time to account for so singular a difference in opinion--3 Reeves, 67 to 72. In 4 Reeves, 82, 83, the question was, whether the right of the wife is founded on the common law or on particular customs. In Swinb. 203, 206, the writ de rationabili parte bonorum, is stated not to lie at common law.

The opinion prevailed, that at common law the wife was not entitled to a third part of the husband's personal estate against his will; and it was resolved in parliament, that by the common law the wife was not entitled to a third part of the husband's personal estate--Co. Litt. 176, 177.--2 Blk. Com. 494, (note.) In Hutton's Reports, 109, 110, (6 Car. I.) the action was founded on a particular custom. It is an absurd notion that the common law and local customs should be the same.

As to the case in Viner's Abridgment, he only abridges the case, and it is no authority as to what the law is.

By the declaration of rights, the [**29]  inhabitants of Maryland are entitled to the common law of England, as it existed at the time of the formation of the government, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practised, by the courts of law or equity; and also to all acts of assembly in force on the 1st of June 1774, except such as may have since expired, or have been, or may be altered, &c. It was the common law, and not particular customs, which were adopted as the rule of decision for our courts. The act of 1704 is the first act we have here upon the subject. There was no usage or practice antecedent to that time, entitling the wife to a third part of the personal estate of her husband. The act of 1641, ch. 4, was respecting the rules of judicature, and was made only four years after the first session held in the province, and nine after the charter, which was granted to Lord Baltimore on the 20th of June 1632.

If it is by usage that the wife is entitled to the [**30]  third part of the personal estate of her husband, there must be some proof of such a usage. There has been no legal decision in the courts here on this question, nor is there any usage to support the opinion.

A legatee shall not take both the legacy and the surplus. A man may make a will, and die intestate as to part of his estate, and in such cases, where there had been a legacy to the wife, she took the legacy and a third part of the personal estate undisposed of, and the act of assembly was intended to prevent the wife from claiming both. The act of 1715, ch. 39, gives an option to the wife, but it did not interfere with any bequest in the will; and the remaining estate means what was undisposed of by her husband's will. The expression cannot refer to property devised away. This exposition of the act of assembly prevents any interference between the wife and the legatees; a contrary one would introduce confusion, and create suits in chancery. The utmost that can be inferred from the act of assembly is, that the legislature apprehended the wife would be entitled to a third of the personal estate of her husband; but they were mistaken in the law, which is no uncommon case.

As [**31]  to the case in the court of chancery, referred to, of Worthington and others vs. Hood, it is at most only the opinion of the chancellor, not acted upon in the superior court. As to the idea that the husband died intestate as to the widow, where he had bequeathed the whole of his estate from her, he contended that no person who has disposed of all his estate by will can die intestate as to a particular person. It is a general principle, that a person who takes by the will shall not reject it as it respects other property. "It is a tacit condition that every man who takes under a will is bound, not only not to dispute the will, but to maintain the title of all the rest, unless he give up every thing under it. No rule can be better established, than that whoever takes under a will, unless he give up the right which he derives from it, cannot dispute other provisions of it. A most reasonable rule; because a man makes his will, supposing the whole to stand."--Per. Lord Mansfield, 4 T. B. 743, (note.)

The acts of 1715, ch. 39, s. 35, and 1729, ch. 24, s. 10, are the same, except as to the wife's election. These acts were grounded on the English statutes of distributions.

Winchester,  [**32]  in reply. The common law is that body of rules generally received and held as law in England, in contradistinction to the statute or written law, and including not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws which are by custom observed only in certain courts and jurisdictions. The common law is grounded upon the general customs of the realm, and comprehends the law of nature, the law of God, and the principles and maxims of the law. It is founded upon reason, acquired by long study, observation and experience, and refined by learned men in all ages. It is justly regarded as the common birth right, which the subject has for the safe guard and defence, not only of his goods, lands and revenues, but of his wife and children, body, fame, and even life--Co. Litt. 97. 142. The common law of England is properly the common customs of the kingdom, which by length of time have obtained the force of laws. The goodness of a custom depends upon its having been used time out of mind, or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.  [**33]  This gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta of the kingdom. It is properly distinguished into three kinds--1. General customs, which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification. 2. Particular customs, which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws, which by custom are adopted and used, by some particular courts, of pretty general and extensive jurisdiction. It is called the unwritten law, not because it is only transmitted by tradition from generation to generation, but because it is not founded on any known act of the legislature. It receives its force from immemorial custom, and for the most part, derives its origin from acts of parliament enacted in the times which immediately followed the conquest, (particularly those anterior to the time of Richard the first) the originals of which are lost. The source from which the decisions of the common law are drawn, is what is called praeteritorum memoria eventorum, and is founded in the collection of judgments which have been [**34]  passed from time immemorial, and which, as well as the proceedings relative to them, are carefully preserved under the title of records. In order that the principles established by such a series of judgments may be known, reports from them have been published from time to time, which reach as far back as the reign of Edward the II. Besides these reports, there are also some ancient authors, of great authority among lawyers, such as the famous and learned Glanville, Lord Chief Justice, who wrote under the reign of Henry II; Bracton, a great lawyer, said to be Lord Chief Justice, who wrote under Henry III; the author of Fleta, and the renowned lawyer Littleton, who wrote in the time of Edward IV. Among more modern authors, is the great oracle of the law Sir Edward Coke, Lord Chief Justice under James I. who has written four books, his learned and laborious institutes of the law, and commentary on Littleton. The common law moreover comprehends some particular customs, which are fragments of the ancient Saxon laws escaped from the disaster of the conquest.

The common law was adopted, received, and recognized in Maryland, as it stood in England at the time of the charter to Lord Baltimore;  [**35]  and the principle contended for is recognized in the act of assembly.

Suppose there had been a decision restraining the testamentary disposition, and the act of assembly had been grounded on it, would it not have been a clear recognition of such a decision? The acts of assembly are the best evidence as to the customs and usages which prevailed antecedent to that time. Common usages shall prevail; and a practice recognized by acts of assembly must be considered as the common law founded on previous decisions of the court.

In answer to the case in 4 T. R. 743, he refers the court to the case of Andrews' ext'rs. vs. Hay, decided in this court at October term 1790. The case was, the plaintiff's testator devised to his daughter, the defendant's wife, a house and lot. He also bequeathed to another daughter a negro slave called Hector. The defendant entered into the house and lot under the devise, and enjoyed the same. He also claimed the slave called Hector, under a parol gift to his wife, by the testator, before the marriage, and before the making of the will. The question before the court was, whether the defendant, having entered into and held the house and lot devised to his [**36]  wife, could be admitted to controvert the will as to the validity of the bequest of Hector; and whether he was not estopped from denying that Hector was a part of the personal estate of the testator at the time of making the will? The general court gave judgment for the defendant.

Suppose under the act of 1729, there had been some trifling bequest in the will to the wife; for instance one shilling, and she does not renounce the will; she would be entitled to a third part of the remaining personal estate; for the act says the wife is only to be barred where a considerable part of the personal estate has been bequeathed to her, and it does not appear that it was intended as a legacy only.

THE OPINION of William Pinkney, Esquire, b on the will of Samuel Griffith.

b Mr. Pinkney was absent on a mission to Great Britain when this case was argued.

MR. GRIFFITH'S will bequeaths no part of his personal estate to Mrs. Griffith, but on the contrary bequeaths it all away from her, and she did not renounce the will.

It is required, whether under these circumstances she is entitled to a third part of the personal estate clear of debts. I am of opinion that she is so [**37]  entitled; and as the point is an important one, I will state my reasons at large.

It has for many years past (and I believe from the first settlement of the province but certainly ever since the act of 1715 ch. 39) been the prevailing idea in this country among lawyers, as well as others, that a husband could not devise away the whole of his personal estate from his wife. This idea has been almost (if not perfectly) universal, and it is supposed to have originated entirely from the provisions of the act of 1715. I think it did not take its rise solely from that act. But let its origin have been what it might, it has been received as settled and established law, and has in part been recognized by our testamentary tribunals. Whether it is a just idea, or otherwise, will not be discovered by a mere examination of the act of 1715; for, although in the passage of that act the general assembly evidently considered it as a rule of law, that the wife could not be debarred of her thirds by the last will of her husband, yet as there is nothing in the act which actually provides to the full extent of the rule, or establishes it in so many words beyond certain specified instances, the rule,  [**38]  as it has been since understood, could not probably have been derived from that act alone. It appears to me, that it was part of the law of Maryland before that act was in existence; for if it was not, it is inconceivable, that the fact of the general assembly having mistaken the law should have totally changed it without any legislative provision sufficiently extensive to do so. The provisions of the act of 1715 apply only to a single case, i. e. where the husband bequeathed a considerable part of his personal estate to the wife, and she renounces c within forty days. In this case she is declared to be entitled to one full third of the clear personal estate; which expressions unquestionably mean a full third, clear of debts. d But this act goes no farther. It does not enact the general rule before mentioned although it certainly acts upon it as applying to the instance for which it was making provision. The reason why it did not enact to the full extent of the general rule was evidently this, that the assembly considered that rule as being already the law of the land. Their object was rather to limit its operation, than to establish it. Their view was to prevent a consequence from [**39]  it which they considered as unjust, and not to introduce it. They believed it to have been introduced before, and to have been the undoubted law of Maryland, (VIDE the preamble of the clause.) In this belief I think they were not mistaken; but whether they were mistaken or not, it is extremely clear to me, that their opinion concurred with the received and settled doctrine and practice at that time. How that doctrine came to be received will appear from the history of some part of the English law, which I will state from the 2d vol. of Blackstone's Commentaries, pages 494, 495, 496, 497. "By the common law of England, as it stood in the reign of Henry II. a man's personal estate was to be divided in three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal," &c. "The shares of the wife and children were called their reasonable parts," which the husband could not devise away from them, and a writ was given to recover them. "This continued to be the law of the land at the time of Magna Charta. In the reign of Edward III. this right of the wife and children was held to be the universal or common law; and Sir Henry [**40]  Finch lays it down expressly in the reign of Charles the first, to be the general law of the land. But this law is at present (in England) altered by imperceptible degrees, (not by statute) and the deceased may now by will bequeath the whole of his goods and chattels; though we cannot trace out when first the alteration began." The same author remarks, that the old rule continues to be the law of Scotland to this day; and that it also continued in Wales, the province of York, and the city of London, till very modern times, when it was altered by different statutes, passed in the reigns of William and Mary, Queen Ann, and George I.

c If the widow neglects to elect within 40 days, she shall be concluded by the bequest, and shall not claim more of the personal estate than shall be so bequeathed, &c. Vide the act of 1729, ch. 24.

d Vide the whole clause (35th section of the act of 1715, ch. 39,) and the proviso about debts.

It will appear from the above statement, that in the reign of Charles the first, the widow was entitled to one third of her husband's personal estate, by the common law, and that he could not devise it away from her. The charter of Maryland bears [**41]  date in the eighth year of that king's reign; and colonization commenced about the same period. It follows, that the emigrants to this country brought the then established law along with them, and received and acted upon it here as a rule of property. From colonization to the act of 1715, the rule remained unchanged in this country, although in England it was undergoing gradual alterations--and in 1715, the provincial legislature expressly recognize it as settled law, and proceed to limit its effects in the case already mentioned. It is true indeed, that the colonists did not adopt the whole of the rule, for they do not seem to have acknowledged the right of the children; but that they adopted and practised the rule so far as respected the wife, is extremely obvious. The change of the law in England could have no influence upon it here--It was not changed by an act of parliament, or suddenly changed; it altered imperceptibly and silently. The colonists being far removed from the mother country, either did not know of this change, or did not choose to follow it; and it is clear that they were not bound to follow it; on the contrary the colonial assembly recognize the rule, and legislate [**42]  upon it; for it is impossible to think that the act of 1715 is not founded upon the admission of this rule, merely calculated to restrict its influence upon a particular case. Upon the whole, it occurs to me, that this right of the wife to a third part of the husband's personal estate, in opposition to his last will and testament, was the law of England at the time of our colonization; that colonists brought this law with them, received it, and acted upon it until 1715, when (although it needed no ratification) it was confirmed by the opinion and provisions of the legislature. The passage cited from Blackstone's Commentaries, coupled with the act of 1715, is satisfactory to my mind.

Upon what ground did the general assembly proceed if not upon that which I have stated? It cannot be supposed that they so totally mistook as to take that for law in a point of this kind which was not so received in general. They must have had some reason for thinking that the law was as they have plainly supposed; and this reason could be no other than the then established usage and settled opinion in the province. That usage, and that opinion, could have had no other probable origin than the one [**43]  before alluded to; and this origin was a legal one. It would have been a legal one even if the law of England had been changed without an act of parliament before the reign of Charles the first; for I know of no authority courts of judicature have to alter the common law. I hold, therefore, that the law of Maryland is, that a husband cannot devise away his personal estate from his wife so as to debar her of her thirds. In a case circumstanced like the present, there was no necessity for renunciation. No personal estate was bequeathed to Mrs. Griffith, and of course there was nothing to renounce. The acts of 1715 and 1729 relate to cases only where a considerable part of the personal estate was given to the wife. There was a plain reason for demanding a renunciation there, which has no existence here. The object of the law was to preclude the wife from taking both under the will, and under the rule before mentioned; and clearly that object does not embrace an instance where nothing is given, or can be taken under the will, but solely under the general rule.

I have thus far considered this case upon the footing of what I allege to have been the law of this country before the act [**44]  of 1715; but even under that act alone, and the practice since, I should be inclined to hold the same opinion. I do not think indeed that the act of 1715 reaches, in the letter of its provisions, the present case; but as it sanctions the wife's right in one instance, in opposition to the husband's bequest to other people, and as the same reason applies to the case in question, I should suppose it would be going too far at this time of day, by a strict and rigid construction, to shake the liberal interpretation that is supposed to have been given to it by the general consent and uninterrupted usages.

In one point of view this act of assembly (even admitting that it introduced the law into Maryland which I deny) will come strongly to this case. The wife's right to her thirds, in opposition to her husband's testament, was the common law of England, and if altered without authority by judges before colonization, and not introduced into Maryland before the act of 1715, that act may be considered as declaratory of the common law, and thus as justifying or rather requiring its revival. The common law had never been altered by those who were empowered to alter it; and a discontinuance [**45]  of the use of it for a time had not abolished it. This act admits its force, and brings it forward into practice as a rule of property. That rule has ever since been held as law and it cannot now be shaken. It stands on the firm foundation of the ancient common law, not repealed or abrogated. It is acknowledged, if not re-enacted, by two acts of our general assembly. It is strengthened by the uniform opinion and usage of the country; and if it is not now the law of this state, it will be difficult to shew that we have any law at all.

WM. PINKNEY.

THE OPINION of William Cooke, Esquire.

I am of opinion a husband cannot by devise of any, or all of his personal estate, prevent his wife of dower, or rather of claiming one third part thereof, if he leaves children; or of one half if he leaves none. I am also of opinion that the will of Samuel Griffith bars his wife of dower only in that part of his real estate in Rumney Neck, the use of the farm on Swan creek being given in lieu thereof; and that she is entitled to dower in his other real estate, and of one third of his personal estate after payment of debts.     W. COOKE.

MARTIN, (Attorney-General,) and HOLLINGSWORTH,  [**46]  for the appellants.

A. HALL, KEY, and WINCHESTER, for the appellee.  

JUDGES:
CHASE, J. GOLDSBOROUGH, Ch. J. and DUVALL, J., concurring.  

OPINIONBY:
CHASE 

OPINION:

 [*122]  CHASE J.--I consider the acts of assembly of 1704, 1715, & 1729, as a clear and explicit recognition of the right of the wife to one third part of the personal estate; and I consider these successive acts of the legislature, and the uniform practice conformable thereto, as the best evidence of what was the common law in the opinion and judgment of the legislature and the citizens of Maryland.
Suppose it questionable, and not well settled in England, the acts of the legislature, and the practice here, prove, beyond a doubt, that it was the general opinion the wife was entitled to a third part of the personal estate by the common law.
Magna Charta ch. 18, saves to the wife her reasonable part. Bracton, who wrote soon after this statute, lays it down as the common law, that after the payment of debts and funeral expenses, the wife was to have one third, &c.
There is no reason why the saving in Magna Charta should be limited to the customary right of the wife. Such an exposition is confined and illiberal, and [**47]  not warranted by the statute. The saving is general, and must relate to the common law right of the wife. There are no restrictive words in the statute to confine the operation of the saving to the right by custom.
At common law the wife was entitled to a third part of the personal estate, independent of the husband; and a bequest made to her by the husband, was not considered in lieu and exclusive of her dower; but she would take both.
The custom was in derogation of the common law, and abridged the right of the wife.
According to the custom of the city of London, if the husband devised a part of his personal estate to his wife, she was concluded by the bequest, and deprived of her customary right, unless it appeared by his will he intended she should have both.
Our acts of assembly are grounded on the custom of London. The acts of 1704 and 1715, give the wife an election. The act of 1729 concludes her by the bequest, unless she renounces the will.
According to our acts of assembly the wife could take the bequest and the third part also, if such appeared to be the intention of the husband.
The acts of 1704, ch. 14, and 1715, ch. 40, passed in the same years, relating to attachments,  [**48]  are allowed to be founded on the custom of London; and these acts, concerning the dower of the wife, from their analogy to the custom of London, in that respect, I presume were grounded on that custom.
It is the opinion of Judge Blackstone that the wife at common law was entitled to a third part of the personal 

 [*123]  estate; and this opinion is supported by great and respectable authorities, Bracton and many others; and Blackstone cites a decision of Finch, in the time of Charles I. (which was about the time our charter was granted) in support of this opinion. The advocates for the contrary doctrine adopt the opinion of Lord Coke, which I have presumed to controvert on the authority of Bracton and Judge Blackstone, and for the reasons I have assigned. Upon the whole, I am of opinion that the plaintiff in this case is entitled to one third part of the personal estate of her husband, after deducting the debts and funeral charges.
GOLDSBOROUGH, Ch. J. and DUVALL, J. concurred in this opinion.
JUDGMENT upon the case stated for the plaintiff. The defendants appealed to the court of appeals; and the judgment of the general court was affirmed in the [**49]  Court of Appeals at November term, 1801.