1 of 28 DOCUMENTS 

BRYDEN VS. TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 395; 1809 Md. LEXIS 7 

June, 1809, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the General Court. The defendant in error brought an action of assumpsit, upon a foreign bill of exchange, drawn on the 23d of July 1799, by C. F. C. Bescke, of Baltimore, on J. A. & D. H. Rucker, of London, in favour of Wm. B. Magruder, for £  230 sterling money, and payable 60 days after sight. The bill was endorsed by Magruder to the defendant, (now plaintiff in error,) and by him endorsed to the plaintiff below. It was protested for nonacceptance on the 14th of September 1799, and for nonpayment on the 16th of November 1799. The general issue was pleaded.

1. The first bill of exceptions. The plaintiff at the trial at May term 1805, to prove that he had given to the defendant due notice of the nonacceptance of the bill of exchange, on which the suit was brought, and of the protest for such nonacceptance, offered in evidence a deposition, which, together with the several endorsements thereon, and certificates thereto annexed, was as follows: "Baltimore, 3d March 1803. During the absence of William Taylor, from Baltimore, I received Francis Brown's letter directed to him in November 1799, which letter was dated the 13th of September 1799, containing advice of C. F.  [**2]  Bescke's bills, 23d July 1799, for £  230 and £  120 sterling, on J. A. & D. H. Rucker, London, being protested for nonacceptance, of which I duly notified James Bryden immediately. In the month of February 1800, immediately on receipt of the news that the bills were protested for nonpayment, I returned in the brig John Brickwood, from London, (which appears by Francis Brown's letter of 21st November 1799.) I notified James Bryden thereof by order of William Taylor, and immediately subsequent I heard various conversations between William Taylor and James Bryden on the subject. The second set which W. Taylor wrote for to England, as soon as it was believed the John Brickwood was lost, arrived at Baltimore in September 1800, enclosed in Francis Browne's letter of 28th June 1800, while W. Taylor was out of town, I was then his agent and in town. Immediately on receipt of the bills, I called at James Bryden's, but did not find him; I called again very shortly afterwards and demanded payment for the said bills of the said James Bryden, from whom I could get no satisfaction. In confirmation of the loss of the John Brickwood, I have examined the journals of the Marine Insurance office of [**3]  this city, and find the following entry under date of the 9th December 1800: "The Marine Insurance Office, Dr. to D Stewart & Sons. For total loss on brig John Brickwood, insured the 10th of January last, on policy No. 504, she having sailed from the Downs the 10th December 1799, and no account of her since--it is concluded she has foundered."

William O. Payne.

Sworn to before me, by William Osborn Payne, on Thursday the 3d of March 1803, at 4 o'clock in the afternoon, at my office in the city of Baltimore.

Owen Dorsey.

To James Bryden. Take notice, that I shall attend at the office of Owen Dorsey, Esquire, in the city of Baltimore, on the third day of March next, at the hour of four o'clock post meridiem, to take the deposition of William O. Payne, to be read in evidence in two suits brought by me against you in the general court for the Western Shore of Maryland.

Wm. Taylor.

February 8th, 1803.

Between the hours of twelve and one o'clock P. M. on Wednesday the 9th of February 1803, I delivered to James Bryden, at his dwelling in Light-street, Baltimore, a true copy of the within notice.

Wm. Y. Lewis.

Sworn to before me the 3d March 1803.

Owen [**4]  Dorsey.

Received to be recorded, the 19th day of May 1804. Same day recorded and examined.

Wm. Gibson, Clk."

The whole was certified under seal of office by the clerk of Baltimore county court. The plaintiff also gave in evidence, that W. O. Payne, in the deposition mentioned, was dead. The defendant objected to the reading of the deposition in evidence.

CHASE, Ch. J. The court accede to the principle that special authorities must be strictly pursued. But they are of opinion, that it appears upon the face of the deposition that it has been properly taken.

The court are of opinion, that the act of assembly of July 1779, ch. 8, entitled, "An act establishing a mode to perpetuate testimony." does not require an efficient residence, such as would make a person a domicil, qualify him to vote or to be capable of holding an office; but a temporary or transient residence is sufficient; and it appears to the court, that the requisites of the said act of assembly has been complied with.

The witness being in the county at the time the deposition is taken, is alone necessary; unless it were so, no person but a judge of the general court would be competent to take [**5]  the testimony of transitory witnesses.

The twenty days notice is not only for the purpose of giving the opposite party time to appear, but to inquire into the character of the witness.

The act of assembly does not require the fact of residence to be put upon record. The defendant excepted.

2. The defendant objected to the reading that part of the deposition which states that the deponent, as clerk of the plaintiff, received letters directed to the plaintiff stating the protest, in consequence of which he gave notice to the defendant as indorser of the bill of exchange.

CHASE, Ch. J. That part of the deposition is only inducement--Let it be read.

3. The second bill of exceptions. The plaintiff, to prove that the bill of exchange in the declaration mentioned was duly protested for nonacceptance, offered in evidence a paper purporting to be an extract under notarial seal from the books of the notary by whom the said protest was supposed to have been made: "Extract from the protest book marked C, fol. 440, begun the 2d of June 1798, and ended the 8th of November 1799, formerly belonging to David Guillonneau, late of Pope's Head Alley, London, notary public, deceased,  [**6]  and now in the possession of his successor, Benjamin Newton, of the same place, notary public.

Baltimore, July 23d, 1799.

Exchange for £  230 0 0 sterling.

Sixty days after sight, this my first of exchange, pay to William B. Magruder, esq. or order, the sum of two hundred and thirty pounds sterling, value received, which place to account R. & W. as advised by

C. F. C. Bescke.

To J. A. & D. H. Rucker, esq. London, endorsed, Pay to Mr. James Bryden, or order, value received.

W. B. Magruder,

James Bryden.

Pay Messrs, Emmott & Browne, or Francis Browne, or order of either, value with     Wm. Taylor.

On the fourteenth day of September Anno Dni. 1799, at the request of Mr. Francis Browne, of London, merchant, I David Guillonneau, notary public, dwelling in London, duly admitted and sworn, went with the original bill of exchange, whereof the foregoing is a copy, to the house of J. A. and D. H. Rucker, esqrs. on whom the same is drawn, where having exhibited the said bill to a man servant belonging thereto, I demanded acceptance thereof, whereunto he answered that the said J. A. & D. H. Rucker, were not within, and had not left any orders for [**7]  acceptance of the said bill. Whereupon, I, the said notary, at the request aforesaid, have protested against the drawer of the said bill, and all others concerned, for exchange, re-exchange, and all costs, damages and interest, suffered and to be suffered for want of acceptance of the said bill of exchange. Thus done and protested in London aforesaid, in the presence of John Denton and Philip Lamendin, witnesses. In testimonium veritatis.

(Seal.)     Dav. Guillonneau, Not. Pub.

Faithfully extracted by me, this twenty-eight day of July, in the year of our Lord one thousand eight hundred and four.

In Testimonium Veritatis.

(L. S.)     Benjamin Newton, Not. Pub."

The defendant objected to the reading of this paper in evidence.

CHASE, Ch. J. The court are of opinion, that the minutes of the proceedings of a notary public are to be considered as records under the curtesy of nations; and that a copy, under the hand and notarial seal of the notary, is sufficient evidence of the protest of a foreign bill of exchange for nonacceptance.

If none but the original would be evidence, what a situation would the party be in where there are different endorsers [**8]  in different countries? In such cases copies must be sent, and they are always received as evidence. The defendant excepted

4. The third bill of exceptions. The defendant, to, prove that the plaintiff at the time of the drawing and endorsing the bill of exchange mentioned in the declaration, was in partnership in trade with a certain John Taylor, under the firm of William Taylor, and that John Taylor was a dormant partner in the said house of William Taylor, at the time of such drawing and endorsements, gave evidence that John Taylor was at that time in Baltimore, where the business of the house of William Taylor was carried on, and was frequently seen in the counting house of William Taylor, transacting business, receiving applications, and giving answers as a principal in the business, and was generally supposed, believed and understood, in Baltimore, to be a partner in the house of William Taylor. And it also appeared in evidence, that John Taylor, for several years before the drawing and indorsement of the said bill of exchange, resided in London, and there carried on business under the firm of John Taylor & Co. and that at the times of the drawing and endorsement of the bill,  [**9]  John Taylor had recently come from London to this state, in bad health, and did not remain in this country longer than 12 or 18 months, when he returned to London; and that during a part of his stay in this state, and at the times of the drawing and endorsement of the bill, he resided at a country seat rented by him in the neighborhood of Baltimore; and that William Taylor did then, and for a long time before and afterwards, carry on trade and business in Baltimore in his own name alone, and not in the name of William Taylor, & Co. or in the names of William and John Taylor. The defendant then prayed the opinion of the court, and their direction to the jury, that if they shall be of opinion from the evidence so offered, that John Taylor was at the times aforesaid a partner in the house of William Taylor, that the plaintiff is not entitled to recover in this action.

CHASE, Ch. J. The Court are of opinion, that the evidence offered is not sufficient to prove that John Taylor was a partner of the house of William Taylor, and therefore they refuse to give the direction prayed. The defendant excepted.

5. A question arose as to the value of the sum of money mentioned in the bill [**10]  of exchange, whether such value under the act of 1785, ch. 38, should be at the time of the protest or at the time of the notice? It was stated by the attorney general, that the circuit court had decided, that the plaintiff might recover as much money as would purchase a new bill at the time of the verdict.

THE COURT said, that it had been often decided in this court, under the act of 1785, ch. 38, that the plaintiff is to recover as much money as will purchase a similar bill at the time of the verdict.

The verdict and judgment being for the plaintiff, the defendant brought the present writ of error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A special authority must be strictly pursued

Where a person acted in the character of a justice of the peace, although he did not so style himself, yet it is prima facie evidence that he had authority to act as such

A permanent residence of a witness is not necessary for the purpose of taking his deposition under the act of July 1779, ch. 8, to perpetuate testimony; but a temporary or transient residence is sufficient. The fact of residence need not be placed on record.

What is alleged as a motive or inducement in the deposition made by a witness, may be read in evidence

The minutes of the proceedings of a notary public of a foreign country, are to be considered as records, under the curtesy of nations; and a copy under the hand and notarial seal of a notary is sufficient evidence of the protest of a foreign bill of exchange

Where a person was frequently seen in the counting house of the plaintiff, transacting business as a principal, and was generally supposed, believed, and understood in the town, to be a partner in the house of the plaintiff, held not sufficient evidence to prove that such person was a partner of the house of the plaintiff

In assumpsit on a foreign bill of exchange the plaintiff is to recover as much money as will, at the time of the verdict, purchase a similar bill 

COUNSEL:
Harper and Purviance, for the Plaintiff in error, stated that two grounds of objection were presented by the first bill of exceptions--1. That it did not appear that Payne, the witness, was a resident of the county where his deposition was taken, so as to give it effect under the act of July 1779, ch. 8; and 2. That it did not appear that Owen Dorsey, before whom the deposition was taken, was a person authorised by law to take it.

On the first point, they referred to the act of July 1779, ch. 8, s. 1, 2, 7, and the decisions of this court upon the [**11]  acknowledgements of deeds by femes covert grantors. Also Evans vs. Bonner, 2 Harr. & M.Hen. 377. The acts of 1729, ch. 8, s. 5; 1763, ch. 13, s. 2; 1796, ch. 43, s. 14. Const. Art. 2, 15; and Stevenson vs. Myers, 1 Harr. & Johns. 102.

On the second point, they cited Gordon vs. Hickman, 4 Harr. & M. Hen. 217.

On the second bill of exceptions, they contended, that the copy of the notarial certificate of the protest of the bill of exchange, ought not to have been received in evidence, until a foundation had been laid for its reception, by proving that the original had been lost, &c. They cited Gittings's Lessee vs. Hall, 1 Harr. & Johns. 16; and Gassaway vs. Dorsey, 4 Harr. & M'Hen. 405.

On the third bill of exceptions, they contended, that the evidence offered was competent for the jury fairly to infer that there was a partnership.

Martin, for the Defendant in error, on the first bill of exceptions, referred, as to the first point, to Sim & Lee's Lessee vs. Deakins, 2 Harr. & M'Hen. 46. Gitting's Lessee vs. Hall, 1 Harr. & Johns. 18. The acts of July 1779, ch. 8, and July 1721, ch. 14.'

On the second point, he referred to Carroll et al. Lessee vs. Norwood, 4 [**12]  Harr. & M'Hen. 287; and Ex parte Bollman & Swartwout, 4 Cranch, 75.

On the second bill of exceptions, he cited Walrond vs. Van Moses, 8 Mod. 322, 323.  

JUDGES:
The case was argued before POLK, BUCHANAN, NICHOLSON, and EARLE, J.  

OPINION:

 [*402]  THE COURT were of opinion, that there was no error in the opinions expressed by the general court in the several bills of exceptions.
JUDGMENT AFFIRMED.  

2 of 28 DOCUMENTS 

BROWNING VS. MAGILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 308; 1808 Md. LEXIS 13 

June, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Replevin for a horse, brought by the appellee against the appellant. The defendant below pleaded property in himself, and issue was joined. It was agreed between the parties, that if the jury find the property of the horse, mentioned in the declaration, to have been in the plaintiff previous to the sale below stated, then the judgment shall be for the plaintiff, subject to the opinion of the court, upon the following case: A certain Samuel Johnson delivered the horse in question to Richard Culverwell, a person duly authorized by the corporation of Baltimore to sell horses at public sale. On Wednesday the 26th of March 1799, Culverwell sold the horse at the public market of the city of Baltimore, in the market-space established by law, to Browning, the defendant, between the hours of ten and eleven o'clock of the forenoon; Wednesday being the public market day of the said market-space. Browning paid Culverwell $ 28 for the horse, fairly and bona fide, and without any knowledge that the horse belonged to any other person than the person who had then sold him; and the regular market tolls, and other duties to be complied with agreeably to the regulations [**2]  of the market in the said sale, were discharged. Verdict for the plaintiff; and the court gave judgment on the case stated and verdict, for the plaintiff. From that judgment the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

The purchasing a horse at a public market established by law for the sale of horses, &c. does not entitle the purchaser to hold the horse against the claim of the true owner.

There is no market overt in this state.  

COUNSEL:
Martin, for the Appellant. The question is how far property in the hands of a bona fide purchaser shall be protected? At common law it is clear, that a purchaser of property in public places, market-overt, is protected. By the custom of London every day is a public day for the sale of goods, &c. and the purchaser is protected in his purchase. Every article sold during the hours for selling in shops in London, is legally sold, if it is an article usually sold in such shop. It is by the common law, that in every thing sold in market-overt, the purchaser is protected, and it is not confined solely to the city of London under the custom of that city. The statute of 21 Henry VIII, ch. 11, makes an alteration of the common law; and if property is stolen, and the thief is prosecuted to conviction, then the party has a right to recover his property from a bona fide purchaser. But to recover, he must proceed to the conviction of the thief, and can only recover of him [**3]  in whose possession the property is at the time of the conviction, even if the owner gave notice of his intention to prosecute the thief. Horwood vs. Smith, 2 T. R. 750. A purchase at a market-overt, is at such places as are authorised by law for the sale of property. All places where things are commonly sold are markets-overt. A market-overt means nothing more than the place where certain articles are usually sold. The purchaser of property in market-overt, is guilty of no impropriety or laches; but there is laches on the part of the owner of the property who does not keep his property safe and secure from being stolen. It is true, that the stealer of a horse may get him to market sooner than he could most other articles, so that he could not be pursued and taken so soon as he could if he had stolen any other article. Yet there is no distinction by the common law. In 2 Blk. Com. 449, the principles are fully laid down, where it is said that property may in some cases be transferred by sale, though the vendor hath none at all in the goods; for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man [**4]  and man must soon be at an end; and therefore the general rule of law is, that all sales and contracts of any thing vendible, in fairs or markets-overt, (that is open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein, and for this purpose were tolls established in markets. Market-overt in the country, is only held on the special days provided for particular towns by charter or prescription; but in London, every day, except Sunday, is market day. The market place or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market-overt. In Baltimore there is no market-overt, except such as is established by law. The same reason which makes every day a market day in London, applies to all large towns and cities. In London, every shop in which goods are exposed publicly to sale, is market-overt, for such things only as the owner professes to trade in. But if goods are stolen, and sold out of market-overt, the owner's property is not altered, and he may take them wherever he finds them, provided he uses due diligence in prosecuting the thief to conviction. So likewise, if the [**5]  buyer knows the property not to be in the seller, or there be any other fraud in the transaction. If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price, unless the property had been previously altered by a former sale. But it is said that there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses, unless bought in a fair or market-overt, according to the directions of the statutes 2 P. & M. ch. 7, and 31 Eliz. ch. 12. Nor shall such sale take away the property of the owner, if within a particular time after the horse is stolen he puts in his claim, and proves his property, and tenders to the purchaser such price as he bona fide paid for him in market-overt. That if any of the points stated in the above statutes be not observed, such sale is utterly void, and the owner shall not lose his property. These are the regulations now in use in England; but they do not operate here. In Horwood vs. Smith, 2 T. R. 750, it was held, that the owner of goods stolen, prosecuting the felon to conviction, cannot recover the value of [**6]  them in trover from the person who purchased them in market-overt, and sold them again before conviction, notwithstanding the owner gave him notice of the robbery while they were in his possession. In 2 Woodeson's Lectures, 412, it is said, that by a sale the property is sometimes transferred.--For in a sale in open market it is good. The owner may get his property by prosecuting the thief to conviction. If goods stolen are gratuitously given away it is different. They must be sold. Hardw. K. B. 349. It is said in 2 Azuni's Maritime Law, 366, (note of the translator,) that the general rule in England has always been, that goods taken by pirates, as well as goods stolen on land, remained the property of the original owner, in whom they again vest on the conviction of the offender, unless they have been sold in market-overt. This exception of sales of stolen goods in market-overt, is peculiar to England, and was made for the convenience and security of public trade and commerce. Again, (Ibid 238,) that the laws of war give the victor the full right of property in the goods taken from an enemy; and if he sells them, the former owner cannot reclaim them, though he finds them in a neutral [**7]  country, or even in his own; but in a note by the translator, it is said, that the English courts consider a sentence of condemnation by a court, constituted according to the law of nations, as requisite to change the property so as to bar the claim of the original owner.

Key and T. Buchanan for the Appellee. A market-overt must be by charter or prescription, and without it there can be nothing like a market-overt. There can be none in Baltimore for the sale of live stock, horses, &c. Even if there is, it has never been considered in this state that a sale divested the property out of the true owner, except in a certain way. It cannot be considered that a newly created market is to be considered as a market-overt. By the declaration of rights the inhabitants of Maryland are entitled to the common law of England, and of such statutes as had been introduced and practised under as applicable to their local situation. If the law as stated by the appellant's counsel is admitted, then the statutes of 2 P. & M. ch. 7, and 31 Eliz. ch. 12, which passed before our colonization, restricting the sale of horses, should extend to this country. By these statutes, the common law was altered [**8]  before the colonization of the country; and the common law, which we are entitled to, is that common law which was in existence at the time of colonization. These statutes clearly changed the common law, and if so, the sale of horses by those statutes was exempted, except in a certain way. The party claiming must make his claim good in pursuance of those statutes. If the common law was altered, then the sale in this case was not a valid one; and if the statutes of P. & M. and Eliz. are applicable to our situation, then the purchaser of the horse must show that he purchased in a particular manner, taking it for granted, (which is denied) that there was a market-overt in Baltimore. He who buys in market-overt must know that he does so agreeably to the rules of the market-overt. There is no authority in the charter of the city of Baltimore, granted by the act of 1796, ch. 68, to pass any ordinance to affect persons, not citizens of Baltimore. Nor does the charter give any authority to establish a market for the sale of horses; but admitting such authority is given, yet being a special authority, it was not competent for the corporation, by any ordinance, to affect any person not a citizen [**9]  of that city. Having a limited jurisdiction, there was no authority delegated to establish a market-overt, so as to affect persons not within their jurisdiction. The creation of a market-overt does not of course give a right to sell horses--It may give permission to sell provisions. The market space in Baltimore, means a portion of ground just by the market established for the sale of live stock, &c. A market-overt never attached to the erection of a new market, but only to an old established market, where the powers are given to hold a market-overt. It is not to be supposed that every market, established in the different counties for the sale of provisions, does imply that horses may be sold there. It appears that in London there cannot be sold, in a jeweller's shop, any thing not usually sold there. So in the market in Baltimore for the sale of provisions, it is not contemplated, nor is it to be inferred, that horses can be sold there. Upon the same principles, the sale of slaves might be made at such a market. It must be a market established for the sale of the particular species of property. The only act of assembly then is the act of 1793, ch. 59, for the sale of stock, horses,  [**10]  &c. at a different place from that at which the horse in question was made. This act was only in existence for seven years, and would not have been so long continued, if it had been believed that stolen horses might be sold, and the right passed by such sale. It may be conceded, that by the civil law the holder of property may sell, but it is denied that this is the law either in Great Britain or in this state. It would be holding out inducements to persons to steal property, and carry it to Baltimore for sale. Our laws contain a better policy, they protect the citizens against rogues. It has been decided in Wheelwright vs. Depeyster, 1 Johns Rep. 471, that the English law, in regard to sales in market-overt, is not applicable in the state of New York, where no such institution exists. Nor is it applicable in this state; and if it is, the sale in this case would not be legal.

Martin, in reply. The opinion delivered by Kent, Ch. J. in Wheelwright vs. Depeyster, was extra judicial; for the judge acknowledged that the effect of a purchase in market-overt was not strictly before the court. The question before this court is, what is the common law of England as to markets-overt; and [**11]  if there be any common law on the subject, has it been adopted in this state? Caveat Emptor is not the rule as to the personal property, but it is as to real property. Possession of personal property is prima facie evidence of right. This is essentially necessary for the benefit of commerce. Every market is a market-overt, and means an open market, in which every thing usually sold is a good sale. A sale openly made in market, is made in market-overt. It is of no consequence how the market is established; if it is an established market, that is sufficient for the sale of an article usually sold in such market. In shops it is not usual to sell horses, but in other markets they may be sold. In country markets any thing may be sold to supply the wants of the people. Several acts of assembly passed establishing markets in the city of Baltimore. Sales were not confined in those markets to provisions, but every kind of provisions, live stock, goods, and every description of thing was permitted to be there sold. The act of 1793, ch. 59, established a market for the sale of live stock, &c. and it pointed out a different place where the market should be, because inconveniencies arose from the [**12]  sale of live stock, &c. in the other markets, where they had been sold before. This act, not answering the purposes for which it was intended, was permitted to expire, and the sale of live stock, &c. left as it was before that act. It is right and proper that a fair purchaser, who bona fide pays his money, should be protected in his purchase. The original owner is sufficiently protected if he prosecutes and convicts the thief. The statutes of P. and M. and Eliz. protect as to horses; but the price bona fide paid, must be repaid to the purchaser.  

JUDGES:
The case was argued before TILGHMAN, BUCHANAN and GANTT, J.  

OPINION:

 [*313]  JUDGMENT AFFIRMED.  

3 of 28 DOCUMENTS 

M'ELDERRY VS. SMITH'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 72; 1807 Md. LEXIS 7 

June, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. This was an action of ejectment brought to recover two tracts of land, viz. Cole's Harbour, and Mountenay's Neck, lying in Baltimore county. The defendant, (now appellant,) pleaded the general issue. The plaintiff at the trial, at May term 1804, offered in evidence, that Andrew Stigar, in his life-time, being seized of four parts or parcels of the two tracts of land for which the ejectment was brought, and being justly indebted to James Franklin, in order to secure to him payment of the money due, did, on the 9th of May 1787, execute a mortgage to him of the said parcels of land, to be void upon payment of the money due, on the 7th of May 1789. He also gave in evidence, that no part of the money has been paid; and that the lessor of the plaintiff is heir at law and administratrix of Franklin, who died before the institution of this suit. The defendant then offered in evidence, that Stigar was seized and possessed of the said four parcels of land before and on the 24th of May 1785. He then offered in evidence a record of a judgment obtained by Thomas Usher against Stigar, in the general court in May 1785, which judgment was signed on the 24th of that [**2]  month. And evidence that Usher afterwards departed this life on the 1st of January 1786, having by his will appointed T. Usher, J. Donaldson, and S. Johnston, his executors. He also offered in evidence certain records and proceedings of the general court, showing that the said executors afterwards, on the 5th of April 1786, sued out a writ of scire facias on the said judgment, the same being then due and unsatisfied; and that a fiat was thereon entered at October term 1787. That a writ of fieri facias issued on the last mentioned judgment, directed to the then sheriff of Baltimore county, on the 17th of July 1788, returnable to the October term following, when it was returned by the said sheriff, thereon endorsed, "made as per schedule, and remains in the sheriff's hands for want of buyers." Which said schedule stated, that "four acres of land near Baltimore-town, and adjoining the property or lands of George Lux, with all the improvements thereon," were valued by four persons, as appraisers, to £  1500, and "about 27 acres of land, more or less, part of Cole's Harbour or Todd's Range, and part of Mounteney's Neck, lying to the north side of Pitt-street, near Baltimore-town," were [**3]  valued at £  12 per acre; and "about 2 1/2 acres of land in the S. East addition of Baltimore-town, lying on Harford and Eden streets," were valued at £  12 per acre; and "Part of Todd's Range, containing 11 acres, more or less, leased to Peter Shepperd for £  90 pr. annum," was valued at £  1500. That a writ of venditioni exponas issued to the said sheriff on the 6th of December 1788, commanding him to expose to sale the several pieces or parcels of land, and the money therefrom arising, have before the court at the May term then following; which last mentioned writ the said sheriff returned, thereon endorsed, "made and satisfied plaintiff in part, £  485." He then offered in evidence, that T. Usher purchased the lands exposed to sale upon the said writ of venditioni exponas, from the said sheriff, under the said execution; and that the said sheriff executed to him a deed therefor, which deed the defendant also offered in evidence, dated the 31st of December 1790. He also offered in evidence, that T. Usher did duly pay to the said sheriff the purchase money for the land so to him sold; that he entered upon the said land, and was thereof seized; and afterwards, on the 11th of May 1792,  [**4]  for a valuable consideration to him paid by the defendant, did duly execute and deliver to him a deed of bargain and sale for the said parts of the two tracts of land before described. Also, that under that deed the defendant entered, &c. and that Franklin, or any person claiming under him, never was in the actual possession of the said lands, but that the same remained in the actual possession of Stigar, or those under whom the defendant claims. The plaintiff then prayed the opinion of the court, and their direction to the jury, that on the foregoing statement of facts, if they believe it to be true, the plaintiff is entitled to recover all the lands for which this suit is brought.

CHASE, Ch. J. a. In the case of Arnott and Copper vs Nicholls, the court considered they might on motion decide whether or not Goldsborough was a bona fide purchaser, and it turned out that he was a fair purchaser. The fieri facias in that case had been taken out after the alienation of the land, and the court thought the alience should have notice; and that a scire facias should have issued to warn him as terretenant; that the whole real estate of the defendant was bound by the judgment, and if there [**5]  were other alienees, or other real estate, the whole should contribute. That the alience, having notice, might come in and pay the judgment so as to exonerate the land; and if there was other property than that aliened, the fieri facias should be levied of that, before recourse should be had to the land aliened.

a Done and Sprigg, J. concurred.

The court consider the case of Arnott & Copper vs Nicholls, similar to the case at bar in all respects except as to the mortgage.

The mortgagee has a legal title in the land mortgaged, and upon failure to comply with the proviso, by paying the money, the legal title is completely vested in the mortgagee, to be defeated only upon payment of the mortgage money; or in other words, the mortgagee has a legal title in the land, defeasible at law, by redemption at the day, indefeasible at law afterwards.

The mortgagee can bring his ejectment, but the mortgagor may come in and pay the money, and exonerate the land.

At the time the judgment was rendered on the scire facias, the mortgagee was terretenant of the land, and the scire facias ought to have issued against him to give him an opportunity to plead as terretenant.

A [**6]  scire facias against terretenants is either general or special; that is, either against the terretenants generally, without naming them, or specially against them by name. In the former it may be shown there are others, and in the latter it is a good plea in abatement, that there are others not named.

In this case, instead of issuing the fieri facias the party should have taken out a scire facias against the mortgagee, the terretenant.

The court therefore give the direction to the jury as prayed by the plaintiff.

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

DISPOSITION:
Reversed.  

HEADNOTES:

If the defendant during the pendency of a scire facias, on a judgment against him, aliens his lands, the plaintiff, after a fiat on the scire facias, may issue a fieri facias, and levy it on the lands so aliened, without proceeding against the alienees.

A scire facias against terretenants is either general, without naming them, or special against them by name.

Whether or not the return made on a fieri facias by a sheriff, stating that he had laid it "on 4 acres of land near Baltimore- town, and adjoining the lands of G L, also on about 27 acres of land, more or less, part of C H or T R, and part of M N, lying to the N side of Pitt-street, near Baltimore-town," &c. and the sheriff's return on a venditioni exponas, issued for a sale of the lands, that he had "made and satisfied plaintiff in part," together with parol evidence of the sale of the lands by the sheriff, and his deed therefor to the purchaser, are sufficient to vest the legal title to the lands in the purchaser? Quere.  

COUNSEL:
Martin, (Attorney-General,) and Harper, for the plaintiff, in their arguments cited Arnott and Copper vs. Nicholls, 1 Harr. & Johns. 471. and Co. Litt. 1.

Key, Purviance and S. Chase, jr. for the defendant, in their arguments cited 1 Blk. Com. 91, 328. Cunningham's L. D. tit. Terrelenant. Jacob's L. D. tit. Terretenant. Vin. Ab. 563, 567, 3 Bac. Ab. tit. Execution, 363. Com. Dig tit. Execution, (D 1.) 2 Blk. Com. 91.

Key and Shaaff, for the appellant, stated, that the question for the decision of the court was, whether [**7]  or not a writ of scire facias ought to have issued against the terretenants claiming under the mortgage, where there was an alienation of the land pending the scire facias on the judgment? They contended, that a writ of scire facias was not necessary, and referred to 2 Bac. Ab. tit. Execution, (1.) 731. 4 Com. Dig. tit. Execution, (D 1.) 133. 10 Vin. Ab. tit. Execution, 563. Co. Litt. 290.b.

Harper, for the appellee, cited 6 Bac. Ab. tit. Scire Facias, (C 5.) 114. Tully's case, 2 Salk. 598. 5 Com. Dig. tit. Pleader, (3 L. 14), 783. Adams and Terretenants of Savage, 2 Salk. 601. The Earl of Pembroke's case, Carth. 111. Arnott. & Copper vs. Nicholls. 1 Harr. & Johns. 471. He also objected that the sheriff's returns on the fieri facias and venditioni exponas, and the sheriff's deed, with the evidence offered, were not sufficient to vest the legal title to the lands in the purchaser; but this objection was afterwards withdrawn, because it had not been made in the court below.  

JUDGES:
The cause was argued before TILGHMAN, NICHOLSON, and GANTT, J.  

OPINION:

 [*75]  THE COURT OF APPEALS reversed the judgment of the General Court.  

4 of 28 DOCUMENTS 

OWINGS vs. NORWOOD'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 96; 1807 Md. LEXIS 12 

December Term, 1806, Argued 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. The appellee brought an action of ejectment for a tract of land called The Discovery, lying in Baltimore county, containing 520 acres and an half acre of land. The defendant, (now appellant,) took defence on warrant, and plots were returned.

1. First bill of exceptions. The plaintiff at the trial at May term 1804, read in evidence the patent of a tract of land called Brown's Adventure, granted to Thomas Brown on the 10th of November 1695, for 1000 acres. Also the grant to Norwood, the lessor of the plaintiff, for the tract of land called The Discovery, the land mentioned in the declaration, and for which this suit is brought, dated the 25th day of June 1800, and granted in pursuance of a special warrant of escheat, obtained by Norwood out of the land office, on the 25th of October 1795, to resurvey and affect a tract of land called Brown's Adventure, originally, on the 10th of November 1695, granted to Thomas Brown, for 1000 acres, who is stated to have died seized thereof intestate, and without heirs. In pursuance of which warrant the tract was found to contain, clear of elder surveys, the quantity of 494 and an half acres, to which was added 26 [**2]  acres of vacant land, and Norwood, having paid the treasurer the sum of £  578 18 4, being the purchase money due for the escheat land, and £  4 17 6, being the composition due for the vacant land added, the state granted to him the land, resurveyed as aforesaid, with the vacancy added, and called The Discovery, agreeably to the certificate of survey thereof returned into the land office, bearing date the 25th of April 1796. The plaintiff also offered in evidence, that The Discovery is included within the lines of the patent for Brown's Adventure. The defendant then offered in evidence, that the great grandson, and heir at law of Thomas Brown, the first patentee, and others his descendants, are alive at this time in this state. The plaintiff then read in evidence an office copy of a deed from Thomas Brown, the patentee, to John Gadsby, bearing date the 2d of May 1700, for the land called Brown's Adventure, purporting to be sealed and delivered by Brown, in the presence of Cha. Carroll and Thos. Bland, and having the following indorsements: May 4th, 1699. Then received of the within named John Gadsby, the sum of two pounds sterling, being for the fine due the right honourable the Lord [**3]  Proprietary, upon the alienation of the land within mentioned. As witness my hand.

Cha. Carroll.

"Memorandum. That the date of this was originally according to the date of the above receipt, but aliened by consent of the provincial court and parties, to bring it within the act of assembly.

"W. Taylard.

"Memorandum. This day, to wit, the tenth day of October, in the twelfth year of his Majesty's Reign, &c. Anno Dom. 1700, came into the provincial court the within named Thomas Brown, and Kath his wife, and the said Kath being secretly examined according to law, they did acknowledge the land and premises within mentioned to the within named John Gadsby, to be his right as of their gift, according to the act of assembly in that case made and provided. Taken and acknowledged in court.

"W. Taylard, Clk."

The defendant then produced the record book, containing the said deed, with its several indorsements, and prayed the opinion of the court, and their direction to the jury, that if they were of opinion that the indorsements were made at the request of John Gadsby, the grantee in the deed named, and with his privity and consent, and that the deed, with the several [**4]  indorsements, was recorded for his benefit, and with his assent, that then the indorsements on the deed by the plaintiff produced, are competent to be read in evidence to support the facts therein contained, against the title of Gadsby, to the land in the deed mentioned.

CHASE, Ch. J. a. The court are of opinion, that the memorandum on the deed from Thomas Brown to John Gadsby, endorsed, to wit--"Memorandum. That the date of this was originally according to the date of the above receipt, but aliened by consent of the provincial court and parties, to bring it within the act of assembly. W. Taylard"--is not evidence, being an act done by Taylard without authority, and that the deed is valid and operative in law to transfer the land to Gadsby.

a Done, J. concurred.

SPRIGG, J. observed, that when he sat alone at the trial of this case at the last term, he considered the memorandum as having been made by an officer having authority to make it; but since, upon reflection, he finds that he was wrong in the opinion which he gave. He concurs with the court in the opinion given, that it was an act done by Taylard without any authority. The defendant excepted.

2. The defendant [**5]  then offered to read in evidence a commission, issued from this court on the 12th of November 1802, and certain depositions taken thereunder, and returned to this court on the 10th of April 1804. It appears that the defendant had, at May term 1801, obtained a commission to London for the purpose of taking testimony, and as the cause was then standing for trial, the commission was granted, with a proviso, that if it was not returned at the next term it would be no cause of continuance at that term on the part of the defendant. At October term 1801, the defendant filed interrogatories, and took out duplicate commissions. At May term 1802, the commission and depositions were returned, and the plaintiff obtained a continuance of the cause, and also a commission to London upon the same terms, that if it was not returned at the next term, it would be no cause of continuance, &c. At October term 1802, the defendant had leave to renew his commission upon the same terms as were originally granted, and he filed additional interrogatories, and issued the commission, and sent a copy of his original and additional interrogatories with the commission, which was returned, with depositions, as before [**6]  stated, and were now offered to be read, but which were objected to by the plaintiff's counsel.

CHASE, Ch. J. It appears that two terms have intervened since the commission was taken out by the defendant, and the plaintiff had sufficient time to send forward his interrogatories. The oath which the commissioners take, shows that they may receive additional interrogatories at any time before the commission is closed. In executing foreign commissions, notice is not necessary; but time should be given, that the opposite party might exhibit cross interrogatories. The court are of opinion, that the testimony taken under the commission may be read in evidence to the jury.

3. The second bill of exceptions. The plaintiff then produced in evidence a deed from John Gadsby to John Barker, dated the 10th of July 1701, for 130 acres, part of Brown's Adventure, describing the part by courses and distances, and calling the same Barker's Inheritance. Also a deed from Gadsby to Aaron Rawlings, for all the residue of Brown's Adventure, not conveyed to Barker, dated the 2d of October 1703. Also a deed of mortgage from Aaron Rawlings to Jonathan Scarth, dated the 13th of May 1706, for all the [**7]  land included in the patent of Brown's Adventure, except the 130 acres conveyed to Barker, which deed of mortgage was to be void, &c. on payment of £  800 sterling money, with interest, on the 13th of May 1709. He then offered evidence, that Barker and Scarth died before the year 1795, without heirs. He then offered in evidence an escheat warrant, to affect by escheat the whole of Brown's Adventure, for the want of the heirs of Thomas Brown, or "be it escheat by the means aforesaid, or by any other way or means whatsoever," granted to the lessor of the plaintiff on the 28th of October 1795; also a certificate upon that warrant, returned to the land office on the 29th of September 1796; also a caveat against a grant's issuing on the certificate by Edward Dorsey, on the 26th of August 1796; also a second caveat entered against a grant's issuing thereon by William Hammond on behalf of The Baltimore Company, on the 10th of January 1797; also an order of the judge of the land office dismissing the caveat of Hammond on the 30th of September 1797; also an order of the judge of the land office permitting the caveat of Dorsey to be withdrawn, and that the same was withdrawn on the 24th of June [**8]  1800; and also a patent issued upon the certificate to the lessor of the plaintiff for the land therein mentioned called The Discovery, bearing date the 25th of June 1800. He then offered evidence, that Brown's Adventure and The Discovery are truly located upon the plots as the plaintiff hath thereon located them. The defendant then offered in evidence, that the descendants and heirs at law of Brown, the original patentee, were at this time in full life in this state; and that Scarth, the mortgagee in the deed from Rawlings, died in Great Britain, having always resided there, leaving issue an only son and heir at law, who during his life always lived, and died in G. B. and left issue an only child his daughter and heir at law, who always resided in G. B. and married Francis Moore; that she and Moore her husband, having always during their lives resided in G. B. afterwards died, leaving Frank Moore of G. B. their only son and heir at law, who is now in full life residing in G. B. where he always has resided, a British subject. The defendant then prayed the court to direct the jury, that the warrant of escheat which issued to the lessor of the plaintiff, issued without authority of law,  [**9]  the property being in the state of Maryland as confiscated property, and not liable to be affected by a warrant of escheat.

CHASE, Ch. J. b. The court are of opinion, that if the heirs of Scarth were living in Great Britain at the passage of the acts of October 1780, ch. 45, ch. 49, and ch. 51, that the warrant of escheat which issued to the lessor of the plaintiff, issued without authority of law; but that a patent which issued on such warrant came within the provision of the act of November 1781, ch. 20, section 8.

b Done, J. concurred. Srigg, J. gave no opinion.

4. The second bill of exceptions in continuation. The defendant then offered in evidence the valuation of the land so escheated by the lessor of the plaintiff, and the sum by him paid into the treasury for the land on the 24th of December 1799, and that the sum so paid was only two-thirds of the appraised value of the land so escheated. And he then prayed the opinion of the court, and their direction to the jury, that if they were of opinion that the lessor of the plaintiff had only paid two-thirds of the appraised value of the land so escheated, that then he could not entitle himself to the benefit of [**10]  the warranty contained in the act of November 1781, ch. 20, s. 8.

CHASE, Ch. J. c. The court are of opinion, that if the jury believe the facts stated, that then the patent was good, valid and operative in law, to pass the land to the lessor of the plaintiff, and his heirs, notwithstanding he had not paid more than two-thirds of the appraised value, the court considering his case as coming fully within the provision of the eighth section of the act of November 1781, ch. 20, and that two-thirds of the value of the land was as much as he was liable to pay. The defendant excepted to this last opinion, and to so much of the preceding opinion as declares the patent to come within the provisions of the 8th section of the act of November 1781, ch. 20.

c Done, J. concurred. Sprigg, J. gave no opinion.

5. The third bill of exceptions. The defendant then read in evidence a record of the late provincial court of Maryland, of a judgment for attachment, recovered in that court at April term 1732, by Littleton Waters against Jonathan Scarth, for £  397 9 6, sterling money, and costs; also a record of that court of a writ of attachment issued on that judgment by Waters, on the [**11]  15th of November 1736, against the goods, chattels and credits, of Scarth; and a return made on that writ by the sheriff of Baltimore county, to whom it was directed, certifying that he had attached, as the goods and chattels of Scarth, a tract of land called Brown's Adventure, containing 870 acres, and which he had caused to be appraised, &c. and an appraisement of the said land, amounting to £  304 10 0 sterling money; upon which return judgment of condemnation in the usual form, was rendered at May term 1737. Other records of attachments and condemnation against sundry garnishees, and other lands to the amount of £  298 12 6 sterling, were offered in evidence. The plaintiff, to show that the land, part of Brown's Adventure, affected by the attachment, was the 386 acres, located by him upon the plots, as the land, part of Brown's Adventure, in the possession of The Baltimore Company, read in evidence the late Lord Proprietary's old rent roll d, kept and remaining in the land office, showing that Rawlings was in possession of 870 acres, and Barker was in possession of 130 acres, of that land; also the Proprietary's last rent roll e, showing that Scarth was in possession of 419 acres,  [**12]  and Charles Carroll, Esquire, & Company, (commonly called The Baltimore Company,) were in possession of 386 acres of that land; also the Proprietary's debt book for the year 1754, which is the oldest debt book known of, or can be found, wherein it appears, that The Baltimore Company stand charged with quit rents upon the 386 acres of land, part of Brown's Adventure, and no more; and that Scarth, in those debt books, stands charged with the quit rents upon 419 acres, part of that tract; and that the respective charges against The Baltimore Company, and Scarth, are continued, in like manner, upon the Proprietary's debt books, from the year 1754 until the commencement of the revolution between Great Britain and America. The defendant then prayed the opinion of the court, and their direction to the jury, that by virtue of the judgment, attachment and condemnation, by the plaintiff given in evidence, a legal estate was vested in Littleton Waters in the tract of land called Brown's Adventure.

d Made about the year 1708 it is supposed, but there is no date to it.

e Made about the year 1730 it is supposed, but there is no date to it.

CHASE, Ch. J. The court are of opinion,  [**13]  that Littleton Waters did not acquire a legal estate in Brown's Adventure by virtue of the judgment, attachment and condemnation. The defendant excepted.

6. The fourth bill of exceptions. The defendant then read in evidence an act of assembly of November session 1797, ch. 119, entitled, "an act to relinquish the right of this state to the lands therein referred to," and prayed the opinion of the court, and their direction to the jury, that by virtue of that act, the right of the state was so far vested in the persons possessing Brown's Adventure, under the condemnation aforesaid, that the lessor of the plaintiff could not in virtue of his warrant, certificate of survey and patent, have any right or title to the said land, or if any, then no more than the proportion or compensation to which a discoverer of confiscated property is entitled.

CHASE, Ch. J. The court are of opinion, that the right of the lessor of the plaintiff to Brown's Adventure, attached on his obtaining his warrant of escheat, and that his right was saved and protected by the proviso in the second section of the act of November session 1797, ch. 119. And the court are of opinion, that the grant to the lessor [**14]  of the plaintiff operates to transfer to him the interest the state had in the land called The Discovery, from the time of the obtention of his warrant of escheat. The defendant excepted.

7. The fifth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that if the warrant of escheat, which issued to the lessor of the plaintiff, issued without authority of law, that then the warranty contained in the act of November 1781, ch. 20, s. 8, did not operate to give title to the lessor of the plaintiff; and that there can be no relation to a warrant which issues without authority of law, or to a certificate made in pursuance of such warrant.

CHASE, Ch. J. The court are of opinion, that the act of November session 1781, ch. 20, s. 8, did secure to the lessor of the plaintiff the land so by him escheated, on his paying two-thirds of the value of the land, being what he was liable to pay for the same as confiscated British property; and that the grant obtained by him did operate to pass the land to him by relation, from the date of the warrant. The defendant excepted.

8. The sixth bill of exceptions. The defendant then prayed [**15]  the opinion of the court, and their direction to the jury, that if Brown's Adventure belonged to a British subject at the time of passing the act confiscating British property in this state, and if no actual possession had been taken thereof by the state, or its agents, and no sale or disposition made thereof, by the state, to any person, at any time before the treaty between the United States and Great Britain, dated the 19th of November 1794, took effect, that the lessor of the plaintiff could make no title thereto by his warrant, certificate of survey and patent.

CHASE, Ch. J. The court are of opinion, that the state, by its commissioners, was in possession of all British property within the limits thereof, under and by virtue of the act of confiscation, October 1780, ch. 45, and the act of the same session ch. 49, to appoint commissioners, &c. and that the possession of the land was in the state at the time the lessor of the plaintiff obtained his escheat warrant; and that no British subject could hold land in this state on the 19th of November 1794, the time when the treaty was entered into between Great Britain and the United States of America. The defendant excepted.

9.  [**16]  The seventh bill of exceptions. The plaintiff then offered in evidence, that Scarth died before the year 1795, without heirs, and that Barker left heirs now living in this state. Also an escheat warrant, to affect by escheat the whole of Brown's Adventure, except the 130 acres conveyed to Barker, granted to the lessor of the plaintiff, &c. The defendant then offered in evidence, that the lineal descendants, and heirs at law of Brown, the original patentee, were at this time living in this state. Also, that Rawlings, the grantee, died leaving heirs, and that the heirs and descendants of Rawlings are at this time living in this state. Also, that the descendants, and heirs at law of Scarth, are at this time alive and residing in Great Britain; and that Scarth was a merchant in the year 1706, residing in London, trading to the then province (now state,) of Maryland; and that Scarth, and his descendants and heirs at law, have from the year 1796, in succession, severally resided in Great Britain to this time, being British subjects, and never were in this state. Also the will of Rawlings, dated the 25th of March 1741, thereby devising that his lands, called Brown's Adventure and Young's [**17]  Lot, be equally divided between his sons and daughters. Also that Waters is dead, and that his descendants and heirs are now living in this state. Also that The Baltimore Company, under whom the defendant claims, have been for fifty years last past in the actual possession and user of the whole of Brown's Adventure, by clearing and cutting the wood off the land for their iron works, and claiming the land; and that there has been no actual or mixed possession of any part of the land by Scarth, or by any person claiming under him, or by any person claiming adverse to The Baltimore Company. The defendant then prayed the opinion of the court, and their direction to the jury, that if they find the facts stated by the defendant to be true, and that no payment of principal or interest due on the mortgage from Rawlings to Scarth was at any time paid, made or done, on or after the 13th of May 1709, that then the jury may and ought to presume the mortgage satisfied before the year 1780, and that the plaintiff is not entitled to recover.

CHASE, Ch. J. The court are of opinion, that the facts stated will not warrant the jury in presuming the mortgage was satisfied before the year 1780, inasmuch [**18]  as Scarth was continually a resident of Great Britain, and although he never entered into possession of the land; yet a possession of The Baltimore Company of 50 years will not authorize the presumption of the payment of the mortgage money, as the defendant has not deduced or shown any title in them from Rawlings; and therefore the court refuse to give the direction prayed. The defendant excepted.

10. The eighth bill of exceptions. The defendant then prayed the opinion and direction of the court to the jury, that if the facts are found true, as stated by the defendant, that then the acts of confiscation, of October 1780, ch. 45, and ch. 49, vested no beneficial interest in this state in the lands mentioned in the mortgage from Rawlings to Scarth, but that the same, if it vested in this state under the act of confiscation, was liable to the equity of redemption in the heirs of Rawlings, the mortgagor, and that by operation of the British treaty, so far as the mortgagee could claim an interest in the mortgaged lands, the same was saved from confiscation by that treaty, and consequently the plaintiff is not entitled to recover.

CHASE, Ch. J. The court are of opinion, that on [**19]  the expiration of the time limited in the mortgage for the payment of the money, a complete legal estate of inheritance vested in the mortgagee, liable to confiscation, and was vested in the state in virtue of the act of confiscation of October 1780, ch. 45, and the act of the same session, ch. 49, to appoint commissioners, &c. subject to the right of redemption in the mortgagor, and his heirs; and that the British treaty cannot operate to affect the plaintiff's right to recover in this ejectment. The defendant excepted.

11. The defendant then offered to read in evidence an original lease and release from Waters to Benjamin Tasker, and others, (The Baltimore Company,) which are not to be found upon any of the records of the state, and which are dated, the lease on the 20th, and the release on the 21st of June 1738, reciting the judgment obtained by Waters, in the provincial court, for the condemnation of Brown's Adventure, mortgaged by Rawlings to Scarth the 13th of May 1706, as the effects of Scarth, &c. and conveying to Tasker, and others, so much and such part of Brown's Adventure as should, according to the valuation, upon oath, returned into the provincial court, amount to [**20]  £  145 1 5 sterling money, &c. Neither of which deeds appear to have been acknowledged. The plaintiff objected to the reading of the deeds in evidence.

CHASE, Ch. J. The court are of opinion, that the lease and release, being ancient deeds, not necessary to be recorded, may be read in evidence to the jury. They were accordingly read to the jury.

12. The ninth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that if they find the facts true, as stated by the defendant, that then the deeds of lease and release from Waters to Tasker and others, conveyed a legal title in the lands therein mentioned; and that if a legal title did not pass, that then the jury may and ought to presume a title in Tasker and others, to the whole of an undivided 386 acres of land, being an undivided part of the 870 acres of land, mortgaged to Scarth, called Brown's Adventure.

CHASE, Ch. J. The evidence will not warrant the court to direct the jury to presume that Scarth perfected the title of the defendant, deeds having been produced showing that a defective title had been transferred. Until all the money was paid, Scarth was not bound to [**21]  convey or diminish the security he had acquired for the whole debt due to him. The court refuse to give the opinion and direction as prayed. The defendant excepted.

13. The tenth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that as to all that part of Brown's Adventure, contained in the deeds from Waters to Tasker and others, under whom the defendant claims, the patent granted to the lessor of the plaintiff doth not give him a title thereto, or enable the plaintiff to recover the same.

CHASE, Ch. J. The court refuse to give the opinion and direction prayed.

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

DISPOSITION:
Judgment affirmed. Writ of error dismissed.  

HEADNOTES:

A memorandum made by a clerk in the record of a deed, stating that the date had been altered, &c is not evidence, being an act done without authority, and will not invalidate the deed.

In executing a commission issued to a foreign country for the purpose of taking testimony, notice is not necessary, but time should be given, that the opposite party might exhibit cross interrogatories.

If the heirs of J. S. in whom was the title to land, were living in Great Britain at the passage of the acts of confiscation, then an escheat warrant, issued to E. N. for the said land, issued without authority of law. But a grant to him for the land surveyed under that warrant, came within the provisions of the 8th section of the act of November 1781, ch 20.

Such grant is valid to pass the land to E. N. notwithstanding he had not paid more than two thirds of the appraised value of the land

The plaintiff on a judgment of condemnation on an attachment on judgment, where there was no fieri facias and sale of the land condemned, does not acquire a legal estate in the land by virtue of the judgment, attachment and condemnation

Land liable to confiscation, may be granted by the state, under an escheat warrant.

Such escheat grant will operate by relation so as to give title from the date of the warrant of escheat.

The 8th section of the act of November 1781, ch. 20, secured the land so escheated to the party, on his paying two thirds of the value.

The state, by its commissioners, was in possession of all British property within the limits of the state, under and by virtue of the acts of confiscation

No British subject could hold land in this state on the 19th of November 1794, the time when the treaty with Great Britain was made.

Where certain facts would not warrant the presuming a mortgage made in 1706 was satisfied before 1780, the mortgagee being a resident of Great Britain, and although' he was never in possession of the mortgaged premises--the party not showing any title under the mortgagor.

Where lands were mortgaged to a British subject, on failure of payment of the mortgage money, a complete legal estate vested in the mortgagee, liable to confiscation, and was vested in the state under the acts of confiscation, subject to the right of redemption; and the British treaty cannot operate on such a case

Ancient deeds of lease and release, not necessary to be recorded, may be read in evidence.

The court would not direct the jury to presume a title had been perfected, deeds having been produced showing a defective title had been transferred.

The court would not direct the jury that the plaintiff's escheat grant did not pass the land, the defendant claiming the same under a defective title.

Notice is not necessary on executing a commission to take testimony in a foreign country

An escheat warrant could not legally issue to effect land if the heirs of the grantee were living in Great Britain at the time of the act of confiscation; but a grant for the land surveyed under that warrant came within the provisions of the act of November 1781 ch. 20 s. 8.

A grant of land as escheat, which was liable to confiscation, is valid notwithstanding the grantee had not paid more than two-thirds of the appraised value of the land

The legal title to lands, condemned under an attachment, cannot be acquired without a fieri facias and sale of the lands so condemned

The right of an escheator of land liable to confiscation, attached on his obtaining his warrant, and it was saved by the proviso in the 2d section of the act of 1797, ch 119; and the grant to him operates to transfer the state's interest in the land

The act of Nov 1781, ch 20, s 8, secured to an escheator the land by him escheated, though liable to confiscation, on his paying two thirds of the value; and the grant of the land to him operated by relation to the date of the warrant of escheat.

Under the acts of confiscation, the state by its commissioners was in possession of all British property within the state

No British subject could hold land in this state on the 19th of November 1794

Where a mortgage was executed in 1706 to J S of Great Britain who remained there, and never was in possession of the land mortgaged, and the mortgagor Lad in 1741 devised the land to his sons, no presumption could arise in favour of a person with 50 years exclusive possession, he not deriving title under the mortgagor, that the mortgage had been satisfied before the year 1780

Lands mortgaged to a British subject were liable to confiscation where the time limited for payment of the money had elapsed, subject to a right of redemption; and the British treaty cannot operate in such a case

Ancient deeds of lease and release, not necessary to be recorded, admitted in evidence

There can be no presumption that a title had been perfected, where deeds are produced showing a defective title had been transferred

The court would not direct the jury that the plaintiff's escheat grant did not pass the whole of the land therein, the defendant claiming a part thereof under a defective title

A executed a bond to B, and delivered it to C, to be delivered to B--Held not to be the act and deed of A, it not having been received by B.  

COUNSEL:
Martin, Key and Harper, for the appellant, in their arguments on the first bill of exceptions, contended, that every deed, to give it validity, must contain, at common law, 1. Indentation. 2. Sealing. 3. Delivery; and superinduced by the act of 1699, ch. 42, two other requisites, 1. It must be acknowledged; and 2. It must be enrolled within twelve months from its date. They also contended, 1. That [**22]  the deed from Brown to Gadsby appeared to have been executed in pais before Carroll and Bland, and sealed and delivered in their presence. 2. That the receipt of the alienation fine, as endorsed on the deed, stated that it was paid to Carroll on the 4th of May 1699. 3. That there was strong evidence of the execution of the deed on that day, because Carroll, who gave the receipt, was a witness to its execution. 4. That it was unusual to pay the alienation fine before the execution of the deed, as it could not be demanded before execution, being a duty arising on the actual alienation, and not before. 5. That it was further established by the act of the clerk of the court, who officially certified the alteration of the date, as a proceeding in court by the consent of the court and the parties; which, when done, admitted the deed to be recorded. 6. That it was the official act of the clerk could not be doubted, because it was made under the eye of the court, and with their consent, and endorsed on the original deed. 7. That it was endorsed at the request of the grantee, for his benefit, and to explain the date of the alienation fine. 8. That the memorandum, after so great a lapse of time,  [**23]  was the best evidence of the fact, and ought therefore to have been admitted in evidence as the act of the clerk in open court, with the consent of the court and the parties to the deed. They referred to Gilb. L. E. 108. Markham vs. Gonaston, Cro. Eliz. 626. Cospey vs. Turner, Ibid 800. The State vs. Oden a. Russell's Lessee vs. Baker, 1 Harr. & Johns. 71. Hoddy's Lessee vs. Harryman, 3 Harr. & M'Hen. 581. Wood vs. Owings & Smith, 1 Cranch, 239.

a In the case of The State vs. Oden, in the general court at May term 1800, in debt on bond, the defendant pleaded non est factum, and that the bond was delivered as an escrow. At the trial the plaintiff offered to prove, that J. S. was indebted to the state, and that the defendant was indebted to J. S; that it was agreed that J. S. should give up to the defendant his bond, and that the defendant should execute his bond to the state for the sum which he owed to J. S.--which was done. That the defendant's bond was presented to the state's agent, but which was refused to be received in discharge of the debt due to the state by J. S, and upon which bond this suit was brought in the name of the state for the use of J. S. The GENERAL COURT refused to direct the jury that the bond was the deed of the defendant. [**24]  

On the second bill of exceptions they contended, 1. That the land was not liable to escheat, there being heirs of Scarth; and they referred to the several acts of confiscation of October 1780, ch. 45, ch. 49, and ch. 51. 2. That this was not a case within the warranty of the act of November 1781, ch. 20, s. 8. They cited 1 Blk. Com. 91. 3. That the land was liable to confiscation, and the title to it could only be obtained in a particular manner--by sale and deed; and that the land office had no power or authority over confiscated lands. They referred to acts of 1784, ch. 81; 1785, ch. 66, ch. 88; 1788, ch. 49; 1789, ch. 47; 1791, ch. 77, s. 8; 1792, ch. 81, s. 6; 1793, ch. 64; 1795, ch. 6; 1796, ch. 12; 1799, ch. 80, s. 6; and 1800, ch. 62, s. 6. 4. That the patent was made without authority, and was void. They cited Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 121.

On the third, fourth, and fifth bills of exceptions, they contended, 1. That this land was held under a judgment of condemnation on attachment. They referred to the act of 1715, ch. 40. Stat. 5 Geo. II. ch. 7. Plater's Lessee vs. Hepburn, 3 Harr. & M'Hen. 434. Davidson's Lessee vs. Beatty, Ibid. 594. The act [**25]  of 1797, ch. 119. 2. That if it could not be legally held under that judgment, it was embraced by the releasing act of 1797, ch. 119, unless it came within one of the provisos. 3. That the second proviso could not aid the appellee, for two reasons--1st. because Norwood was not an informer against confiscated lands; and 2d. because the rights of informers extended not to the land, but to a certain part of the price. They referred to the acts of 1785, ch. 88, s. 3; 1788, ch. 49, s. 2; 1789, ch. 47, s. 20; 1790, ch. 65; 1791, ch. 77, ch. 90; 1792, ch. 81; 1794, ch. 40, s. 7; & 1800, ch. 62. 4. That the only remaining question was, whether Norwood came within the first proviso; that is, whether at the time of passing this act, (21st January 1798,) he had a right in or to this land? They contended that the grant to Norwood could have no relation to the date of the escheat warrant, which had illegally issued; nor to the date of the certificate of survey, which was equally illegal, as there could be no relation to an illegal or tortious inception of title. They cited 3 Coke, 286, 29. a. 2 Ventris, 200. Townsend vs. Ash, 3 Atk. 340. Co. Litt. 310, b. 3 Shep. Abr. 150, 151, 152. Howard vs.  [**26]  Cromwell, 4 Harr, & M'Hen. 325, and 1 Harr. & Johns. 115. Peter vs. Mains, 4 Harr. & M'Hen. 423. Hammond vs. Norris, in the General Court, (see post.)

On the sixth and eighth bills of exceptions, they contended, 1. That the confiscation act excepted debts, and, by an equitable construction, it excepted all the incidents to and securities for debts. They cited Pow. on Mort. 13, 15, 16, 178, 179. 2. That if mortgages were affected by the act of confiscation, still the treaty of peace protected them, and operated as a repeal pro tanto. They referred to the treaty of peace of 3d of September 1783, Art. 4, 5, 6. Ware vs. Hylton, 3 Dall. 199. Clerke vs. Harwood, Ibid 342; and the treaty of the 19th of November 1794, Art. 9.

On the seventh bill of exceptions they contended, that the nature and length of the possession of the appellant, and those under whom he claimed, to the exclusion of all others, and there being no demand of the mortgage debt, were sufficient for the court to have directed the jury to presume the mortgage debt had been satisfied.

On the ninth and tenth bills of exceptions, they cited Warren vs. Greenville, 2 Stra. 1129. Bridges vs. The Duke of Chandos, 2 [**27]  Burr. 1065. Anonymous Case, 1 Ventris, 257. The Mayor of Hull vs. Horner, Cowp. 102. Eldridge vs. Knott, Ibid 214. Cocksedge vs. Fanshaw, Dougl. 119. 12 Coke, 5. The act of 1797, ch. 119. Carroll et al. Lessee, vs. Norwood, 4 Harr. & M'Hen. 287.

Ridgely, Mason, and Johnson, (Attorney-General,) for the appellee, in their arguments on the first bill of exceptions, insisted, 1. That the acknowledgment of the deed from Brown to Gadsby was no proof that there was a delivery before that time. 2. That the memorandums taken together, prove that there was a delivery at that time. They cited Smartle vs. Williams, 1 Salk. 280. Markham vs. Gonaston, Cro. Eliz. 626, 627.

On the second bill of exceptions, they contended, 1. That the land was liable to escheat, and that the escheat grant was prima facie evidence of an escheat. That if Scarth, or his daughter, died after the 4th of July 1776, and before the act of confiscation, then the land escheated to the state, as the next heir being an alien could not inherit; and that it was incumbent on the appellant, who claimed against the escheat grant, to prove that this did not happen. 2. That admitting the land to have been liable to confiscation,  [**28]  and not escheat, still the grant ought to pass it; because, at the time of the grant, the price of escheat and confiscated lands were the same. 3. That at the time of making the grant, the chancellor had authority to grant confiscated lands under the acts of 1793, ch. 64, and 1795, ch. 6. 4. That he had general authority to judge and decide in disputes respecting the title of confiscated lands, and that he did so on Hammond's caveat; and his decision ought to be final under the acts of 1785, ch. 66; April 1787, ch. 30, s. 4, and 1789, ch. 35, s. 4. 5. That the grant was protected by the warranty clause in the act of November 1781, ch. 20, s. 8. They referred to 2 Blk. Com. 249. The several acts of confiscation before referred to; and the acts of November 1781, ch. 20, s. 8, s. 6, 17; 1793, ch. 64; 1795, ch. 6; 1785, ch. 66, ch. 88, s. 3; and April 1787, ch. 30, s. 4. Wynne vs. Wynne, 1 Wils. 43. Goodtitle vs. Bailey, 2 Cowp. 600. Walton vs. Shelley, 1 T. R. 296. Buckland vs. Tankard, 5 T. R. 578. Rex vs. The Bishop of Chester, &c. 2 Salk. 561. Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 140. Hammond et al. Lessee, vs. Norris, in the general court, (see post). Goodtitle vs. Morgan,  [**29]  1 T. R. 758. Gittings, jr. Lessee vs. Hall, in the general court, (see post 112.)

On the third bill of exceptions they referred to the acts of 1715, ch. 40, s. 7, and 1797, ch. 119. Rex vs. Deane, 2 Show. 85. Taylor vs. Cole, 3 T. R. 296. Davidson's Lessee vs. Beatty, 3 Harr. & M'Hen. 594.

On the fourth bill of exceptions they referred to the acts of 1797, ch. 119; November 1781, ch. 20, s. 6, 8; and 1789, ch. 35, s. 5.

On the seventh bill of exceptions they contended, that the mortgage from Rawlings to Scarth, by lapse of time and the long possession of the mortgagee, had become an absolute estate, and the equity of redemption was gone. They cited 1 Fonbl. 323, 2 Fonbl. 269. Cook vs. Arnham, 3 P. Wms. 288, (note).

On the eighth bill of exceptions they referred to the acts of April 1782, ch. 60, s. 7, 8; and 1784, ch. 81. Strit horst vs. Groeme, 2 W. Blk. Rep. 723.

On the ninth and tenth bills of exceptions they cited Denn vs. Barnard, 2 Cowp. 597. Davidson's Lessee vs. Beatty, 3 Harr. & M Hen. 594.

Curia ad. vult.  

JUDGES:
The cause was argued before TILGHMAN, BUCHANAN, NICHOLSON, and GANTT, J.  

OPINION:

 [*111]  THE COURT OF APPEALS, at this term, affirmed [**30]  the judgment of the General Court, concurring in the opinions expressed in all the bills of exceptions.
The appellant considered this was a case arising under a treaty, within the meaning of the constitution of the United States, and that the supreme court had appellate jurisdiction therein, he therefore sued out a writ of error under the provisions of the 25th section of the act of congress, entitled, "An act to establish the judicial courts of the United 

 [*112]  States," passed the 24th of September 1789; but the supreme court, considering it not to be such a case, dismissed the writ of error. 5 Cranch 344. 

5 of 28 DOCUMENTS 

HAY, et al. VS. CONNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 347; 1808 Md. LEXIS 24 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. The appellants, by their next friend, brought an action of trover in that court against the appellee, for the conversion of a mulatto male slave called James Perry. The general issue was pleaded. The facts are stated in the following opinion of the county court, delivered at the trial in February 1802, by

H. RIDGELY, Ch. J. In this case the evidence offered to the jury is, that John Hay, deceased, father of the plaintiffs, in his life-time executed a bill of sale to the plaintiffs, who were and still are infants under the age of twenty-one years, by which he sold to them a negro slave by the name of James Perry, (who is the slave mentioned in the declaration;) that John Hay departed this life intestate, leaving his said infant children in the care and under the protection of their mother, Martha Hay; that Martha Hay afterwards took upon herself to hire for wages the negro slave, James Perry, to the defendant, Captain Conner, to perform a voyage from Baltimore to Hamburg, and thence back to Baltimore, as a cook on board the ship Mary, which the defendant commanded in the voyage. The slave's name was signed under the ship's articles, in pursuance [**2]  of the said hiring, as a cook; and that the defendant promised Martha Hay that he would bring back the negro, or pay her a generous price for him, in case he should not. The ship Mary, on her arrival at Hamburg, in the prosecution of her voyage, was sold by the orders of her owner. The negro slave was, after the sale of the ship, put by the defendant on board the ship Fidelity, Captain Weems, bound to Baltimore, and the defendant furnished him with provisions for said voyage. It is admitted that the plaintiffs, at the time of the hiring of the slave by their mother, were the legal and sole proprietors of the said slave, and that the mother of the plaintiffs was not appointed the guardian of the plaintiffs, or either of them, by their father, or by the orphans court, and that they, at the time of the hiring, were under the age of fourteen. It is also admitted, that an action of assumpsit has been instituted in this court, and a recovery had for the slave's wages for said voyage, against the defendant, by Martha Hay; and now the present action is brought to recover the value of the slave, upon the ground that this slave has been converted by the defendant to his own use. The great question [**3]  then, upon which this case depends is, whether under a view of these circumstances the defendant is guilty of a conversion? If he is, the plaintiffs are entitled to a verdict; if he is not, the verdict ought to be for the defendant.

It remains to be considered how this slave came on board the defendant's ship, by what authority he was shipped, and in what capacity he was received by the defendant? He was shipped by Martha Hay, at and for the wages of 20 dollars per month, for the voyage. He was received by the defendant at and for these wages to perform the voyage. Who was the contract between? The defendant on the one part, and Martha Hay on the other--The slave was no party to the contract. It is a mutual contract binding both the parties; on the part of Martha Hay, that the slave should perform the voyage; on the part of the defendant, that he would pay the wages. This I take to be the substance of the contract. Then, had Martha Hay power to make this contract? It results, from the relation in which she stands to the plaintiffs, that she had. She is their guardian by nature; as guardian by nature, she has the custody of the persons of her children, and the management of their [**4]  personal property, and she is accountable to them for the profits. It follows then that she has a right, and is bound to use the property in such a way as to make it most productive; but she cannot vest the right of property in any other person, or change the species of property, that being in her children, from whom that right cannot be taken without their consent, and they are not capable of giving that consent until they arrive at the age of twenty-one. I hold that the contract is valid and binding on the parties; each had a right and a legal capacity to make it. What legal obligations are imposed on Martha Hay by this contract? I take it she is bound and answerable that her slave shall conduct himself, as other seamen do in similar stations on board a ship; on the other hand, the defendant is bound by the contract to conduct towards the slave in the same manner, in every respect, as to other seamen, and if he deserts the ship, Mrs. Hay is liable to all such losses as would result to a free mariner who should, under the same circumstances, desert his ship. I mention the contract thus particularly, and its legal operation on both the parties, to show that this slave was shipped or [**5]  hired by a person having proper authority, and that the defendant did no wrong, and was justified in receiving and employing him in the manner he did, and so far was not guilty of a tort. Is there any thing in the defendant's conduct afterwards that can make him guilty of a tort? Had he a right to send the slave back in another vessel? If he had a right to send the other seamen back in another vessel, he had a right to send the slave back in the same way. The act of congress has thought it a reasonable way, and it is a good rule for us. Did he pay him the two months wages? It is right and proper he should not have paid them; if he had he would have been bound to pay them again to Mrs. Hay, with whom the contract was made. Perry was a slave, and could do no act, but such as Mrs. Hay authorized him to do. The defendant put the slave on board Captain Weems, bound for Baltimore, to be brought back; by the act of God the vessel was driven out of her course, and compelled to go to one of the Islands. This was no wrong by the defendant. But when there, Perry makes his escape. Is this the wrong of the defendant? We think not. Suppose Perry had ran from the ship, and drowned himself, would [**6]  the defendant be answerable? Would it be a conversion? No. Suppose he had, when compelled to go to this Island, committed an offence against the laws of the state, and was imprisoned, would the defendant be answerable? No. Suppose the slave had taken a knife and cut his own throat, would it be said that the defendant ought to have been standing always by to arrest the blow, and that he, having neglected to do this, is answerable? No. Upon the whole, we think that Martha Hay had a right to hire, and that there was no wrong in the defendant in receiving the slave on board as a seaman; that the defendant did all he was bound to do afterwards to ensure the return of the slave, and if he deserted, it was not the defendant's fault; and therefore, it is the opinion of the court, that the defendant is not guilty of a conversion upon the facts so offered and admitted to be proved to the jury. The plaintiffs excepted; and the verdict and judgment being for the defendant, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

Where a mother, as the natural guardian of her infant children, who were under the age of 14 years, hired a slave belonging to them, to a sea captain, to perform a voyage on wages, the slave to be returned, &c. and the vessel being sold at the port to which she sailed, by her owners, the slave was put by the captain on board of another vessel bound home, and furnished with provisions for the voyage, but never returned home In an action of trover by the children, prosecuting by their prochein amy, against the captain, for the value of the slave--Held, that the action was well brought.  

COUNSEL:
Brice, for the Appellants, stated, that the principal questions were--1. Whether Mrs. Hay, the mother, was guardian by nature, if so, whether [**7]  as such she had any such power over the property of the children? And 2. Admitting she had such power, whether the defendant has not, by putting the slave in the custody of another person without the knowledge or consent of Mrs. Hay, or her children, exercised such an act of ownership over the slave as to amount to a conversion? As to the first question, he cited Fonbl. 247. Co. Litt. 119, b. (note B) Brown's Civil Law, 131; and the act of 1798, ch. 101.

Purviance, and S. Chase, Jr. for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, and NICHOLSON, J.  

OPINION:

 [*350]  THE COURT said, the action of trover was well brought, and reversed the judgment.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

6 of 28 DOCUMENTS 

BOREING'S Lessee VS. SINGERY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 455; 1809 Md. LEXIS 18 

December, 1809, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the General Court. In this case there was a writ of procedendo from the late court of appeals, directing a new trial of an action of ejectment, (which had been tried in the general court at October term 1799,) for a tract of land called Boreing's Habitation Rock, lying in Baltimore county, containing 300 acres of land. [See 4 Harr. & M'Hen. 398.] The defendant took defence on warrant for all that part of Boreing's Habitation Rock, which is included in Singery's Trouting Streams, according to his locations thereof on the plots returned in the cause.

1. The plaintiff, at the new trial at October term 1805, read in evidence the patent of Boreing's Habitation Rock, granted to Ezekiel Boreing, the lessor of the plaintiff, on the 24th of April 1795, for 300 acres of land more or less. The defendant produced a grant issued to him the 20th of April 1775, for the tract called Singery's Trouting Streams, for which he took defence. The plaintiff then produced the original certificate out of the land office for the land called Singery's Trouting Streams, dated the 30th of September 1770; and gave evidence by James Calder, that he was surveyor of Baltimore county when the original [**2]  certificate was returned to the land office, upon which the patent for Singery's Trouting Streams was granted; and that the certificate, on which the patent issued, was not made out or signed by him, or by his authority; that the original certificate, as entered upon his book of surveys, contained no call to the beginning trees of the tract of land called Petticoat's Loose, nor was there any such call in the certificate as made out by him, or under his authority. That the certificate, as made out by him to be returned to the land office, described the land called Singery's Trouting Streams as "beginning at two bounded white oaks standing between two barren hills at the end of the last line of a tract of land called Merryman's Mountain, (included,) and about west nine perches 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 taken from his original book of surveys. The plaintiff produced this book in court, and offered to read it to the jury. He further offered to prove by Calder, that he had examined the original certificate of Singery's Trouting Streams, with the entry on [**3]  his book, before he delivered and signed the original certificate for the land office. By which evidence the plaintiff offered to prove to the jury, that the certificate of Singery's Trouting Streams, returned to the land office, and on which the patent issued, was a forgery, and could not operate to pass more land than was contained in the certificate signed by Calder. The defendant then offered evidence, that no other certificate of Singery's Trouting Streams, except the one on which the patent issued to the defendant, was ever returned to the land office. He also offered in evidence, the certificate returned to the land office, with the endorsements thereon, and the aforesaid patent. [See them set out in 4 Harr. & M'Hen. 398.] He also offered evidence, that Calder never did make out a certificate for Singery's Trouting Streams, from the entry made in his book; and to prove that a certificate for Singery's Trouting Streams never was examined with the said entry, he offered in evidence, by Calder, that he did not begin to survey lands in the reserves of Baltimore county before the 24th of November 1770, and that he would not have inserted a certificate in his book of an elder date [**4]  than the 24th of November 1770, if he had taken notice of such a date. He also offered to prove, that there are certificates of surveys, contained in the said book, bearing date since the 4th of July 1776. He also offered in evidence the proprietary instructions to Robert Eden, Daniel Dulany, and John Morton Jordan, dated the 30th of June 1769 a, requiring that they should forthwith, if necessary, cause an exact survey and return to be made of the lord proprietary's reserved lands and manors, &c. He also offered evidence, that Calder was appointed to survey the lands in the instructions mentioned; and to prove that Calder's authority ceased before the 4th of July 1776, offered in evidence the declaration of independence. He also offered in evidence, that the following part of the entry in the said book, and no more, is in the handwriting of Calder, to wit: "Amended for Christian Singery, a tract 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 from George's Run, and running then N 87 W 22 ps. S 47 W 96 ps. He also offered in evidence, by Calder, that the [**5]  latter part of the said entry is not in his handwriting, and that he did not know in whose handwriting it was, but supposed it to be the handwriting of a man named Norris, one of his deputies. That the land included in the courses taken from the said entry, is in the reserves of Baltimore county; and that the entry made in his book, was made after the 4th of April 1775, but on what day he knew not. The plaintiff further offered evidence, by Calder, that the reason he recorded a certificate in his book, bearing date the 30th of September 1770, was from an oversight in his not particularly attending to the date of the certificate, and that he would have corrected the erroneous date had it particularly occurred to him. That he had a number of deputies, who were authorized by him to record certificates in his book, after they had been examined and signed by him. The defendant objected to the plaintiff giving any of the evidence offered by him, for the purpose for which it was offered.

a Entered in the Council records, J. R. folio 241, &c.

CHASE, Ch. J. (sitting alone.) This question, he said, had already been decided in this case at the former trial at October term 1799,  [**6]  when there was a fuller court. He considered himself bound by that decision, even if he thought differently now. He therefore permitted the evidence to be read to the jury, being of opinion that the fact, whether the certificate was forged or not, was a material fact in this cause, and that the evidence offered by the plaintiff was competent and admissible evidence to prove that fact; and that the credit of the witness, and of the surveyor's book referred to, were subjects within the province of the jury, and proper for their consideration upon the whole of the case. The defendant excepted.

2. The defendant then, in addition to the facts before stated, gave in evidence, that the locations on the plots made on the part of the defendant are true, as by him located, and contained truly the land granted to him in 1775. And offered evidence to prove, that the land included in the grant comprehends the land granted to the lessor of the plaintiff, called Boreing's Habitation Rock, for which this suit is brought. He also read in evidence an office copy of the record and proceedings then depending in the court of chancery, between the lessor of the present plaintiff and the defendant,  [**7]  on a bill exhibited expressly to vacate the defendant's grant. And read in evidence the records and proceedings in the council chamber, by which a commission was created for the purpose of selling certain lands of the then Lord Proprietary of Maryland, which is herein before referred to, dated the 30th of June 1769; and proved, that the lands claimed by him in virtue of his patent, were claimed by him under a purchase from the persons acting under that commission, and were part of the private estate of the Proprietary, and not liable to be affected by the ordinary proceedings and usual practice of the land office. He also proved that John Clapham, whose name was to the receipt of the consideration money endorsed on the certificate of the land called Singery's Trouting Streams, stating that he had, on the 19th of April 1775, received of the defendant the sum of £  71 4 0 sterling for the purchase money of that land, was then acting as clerk to the said commission. The defendant then prayed the opinion and direction of the court to the jury, that it is not competent in a court of law for the plaintiff, under the circumstances of this case, to give any evidence, or go into any parol examination [**8]  of the surveyor, or his books, to vacate the defendant's grant, or to prove that the certificate returned to the land office, as a foundation for that grant, was forged or fraudulent, and not made out by him or his authority.

CHASE, Ch. J. refused to give the direction prayed. The defendant excepted.

3. The defendant then offered in evidence the commission which issued at his instance out of this court, on the 13th of September 1799, to Huntingdon county, in the state of Pennsylvania, to take the testimony of witnesses in this cause, with the depositions taken under it. The return to this commission, after setting forth the meeting of the commissioners, and their having taken the deposition of a witness in answer to certain interrogatories, concludes by the commissioners certifying, that "the foregoing interrogatories were taken at the instance of Joshua Stevenson, on his asserting that the plaintiff had knowledge of his coming, and intention of having this commission executed." To the admissibility of this evidence,

CHASE, Ch. J. This case is not similar to that of Norwood vs. Owings. In that case the commissioners certified that they had given notice; but in this case [**9]  it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given. The court are of opinion that the commission and return are not legal evidence, nor any part thereof. The defendant excepted.

4. The plaintiff then offered to read in evidence the commission, with the testimony returned with it, which had been executed and returned at the instance of the defendant, under a commission issued from this court to Fayette county in Pennsylvania, on the 14th of March 1798, but which the defendant refused to read. The return is as follows: "In obedience to a commission to us directed by the hon'ble the judges of the general court for the western shore of Maryland, we met at the house of James Gregg, in Fayette county, Pennsylvania, on the 1st of October 1798, and after taking the oath directed, we appointed J. M. clerk, who took the oath directed in the said commission. We then put the following interrogatories unto Daniel Goodwin, of the county aforesaid, being first duly sworn on the Holy Evangely of Almighty God, viz." [Then follow the interrogatories and answers.] "The foregoing interrogatories were taken at the instance [**10]  of Joshua Stevenson, on his asserting that Mr. Cooke, attorney for the plaintiff, had knowledge of his coming, and intention of having this commission executed, and consented thereto. Given under our hands and seals," &c. Signed and sealed by the commissioners; and certificates that the commissioners and clerk had taken the oaths annexed to the commission to be by them respectively taken. The plaintiff also offered to read in evidence the deposition of Doniel Goodwin, named in the same commission, who at the former trial attended court, and his deposition taken in the city of Annapolis on the 23d of May 1799, before a justice of the peace, &c. by consent of parties, to be read at the trial of this cause, so far as the same contained legal testimony.

CHASE, Ch. J. This commission is liable to the same objection as the other commission, and the court refuse to admit it to be read, being of opinion that the commission was not legally executed; and that the deposition taken in Annapolis, by consent of parties, was taken for the purpose of impeaching or counteracting the deposition taken under the commission. The plaintiff excepted; and the verdict and judgment being for the defendant,  [**11]  the plaintiff brought a writ of error to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A surveyor's original book of surveys, and his parol testimony, admitted by the general court, in an action of ejectment, as competent evidence to prove that a certificate of survey returned to the land office, was forged

The general court refused to direct the jury, that it is not competent in a court of law to give evidence to the jury, or to go into any parol examination of the surveyor, or his books, to vacate a grant, or to prove that the certificate of survey returned to the land office as a foundation for the grant, was forged or fraudulent, and not made out by him or his authority.

The proprietary instructions, requiring a survey to be made of reserved lands, &c. read in evidence.

Depositions returned under a commission issued to Pennsylvania, to take testimony in the cause, were not permitted by the general court to be read in evidence, it not appearing, by the return of the commissioners, that they had given any notice, or that proper notice had been given.

Depositions similarity taken were not permitted to be read in evidence, although offered in evidence by the opposite party.  

COUNSEL:
Shaaff, for the Defendant, stated two objections to this testimony--1. Because the book was made without authority, and the entry was not made by Calder himself, nor examined by him, and from his own proof was not made until after the patent issued to the defendant. 2. Because it is contrary to the grant, and the grant cannot be held void in this court. He cited Twyne's case, 3 Coke, 80. 13 Vin. Ab. 519, 527. 2 Com. Dig. 575. 2 Bac. Ab. 602. Lane, 105, (argt.) Upton vs. Basset, Cro. Eliz. 445. Bull. N. P. 260. Stat. 27 Eliz. ch. 4. Carvill's Lessee vs. Griffith, 1 Harr. & M'Hen. 297. Maxwell's Lessee vs. Lloyd, 1 Harr. & M'Hen. 212. Spalding's Lessee vs. Reeder, 1 Harr. & M'Hen. 187. Hammond, et al. Lessee vs. Sheredine, 4 Harr. & M'Hen. 420; and Webb's Lessee vs. Beard, 1 Harr. & Johns. 349.

Martin, (Attorney-General,) and T. Buchanan, for the Plaintiff, were stopped by the court.

T. Buchanan, for the Plaintiff, objected, because there had not been legal notice to the plaintiff of the time of executing the commission.

Key, for the Defendant, cited Norwood vs. Owings, (ante 98,) where this court decided [**12]  that notice was not necessary in executing foreign commissions.

T. Buchanan, for the Plaintiff in error; and by

Shaaff, for the Defendant in error.  

JUDGES:
The cause was argued before BUCHANAN, NICHOLSON, GANTT, and EARLE, J.  

OPINION:

 [*460]  JUDGMENT AFFIRMED.  

7 of 28 DOCUMENTS 

HALL VS. GITTINGS'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 380; 1809 Md. LEXIS 6 

June, 1809, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the General Court. In this case there was a procedendo from the late court of appeals, directing a new trial of an action of ejectment, (which had been tried in the general court at May term 1800,) for 50 acres of arable land, 10 acres of meadow, and 100 acres of woodland, being part of a tract of land called Hill's Forest, situate in Baltimore county. (See 1 Harr. & Johns. 14.) The defendant took defence for Cullen's Lot, and Cullen's Addition, on the plots made and returned. Judgment was entered against the casual ejector for all the lands undefended.

1. The plaintiff at the new trial at May term 1805, produced in evidence a certificate of survey of a tract of land called Hill's Forest, made for Richard Hill on the 4th of October 1683-4, in pursuance of a warrant granted him for 1000 acres, on the 31st of July 1683, "lying in Baltimore county, in the woods above the head of a river called Gunpowder river, and upon the S side of the N branch of the said river, beginning at a bounded red oak standing at the end of the N line of a parcel of land formerly taken up for James Thompson a, and running from thence W parallel with the said land for the length of 520 perches,  [**2]  then running from the end of the W line N S10 perches, then running from the end of the N line, E 520 perches, until it intersects the land called Clarkson's Hope, then running with the said land, and a parcel of land called Gassaway's Ridge, by a straight line to the first bounded tree, containing and laid out for 1000 acres of land more or less." Also a patent granted to Richard Hill, on the 10th of August 1684, for that land. Also the will of Richard Hill, dated the 20th of October 1700, whereby he devised to his sons Richard, Joseph and Henry, by a residuary devise in the will, the said land, equally to be divided, to them and their heirs, for ever. Also the will of Joseph Hill, dated the 21st of May 1724, whereby he devised the remainder of his estate, both real and personal, including the said tract of land, to his brother Henry Hill, (son of the patentee,) and his heirs, for ever. Also the entries on the Rent Roll, showing that Hill's Forest, 1000 acres, was in possession of Joseph Hill, and stating therein an alienation of the land from Henry Hill to Joseph Hill, on the 27th of July 1737. Also a copy of a deed from Henry Hill, son of the patentee, to Joseph Hill, dated the [**3]  27th of July 1737, and the record book, with the deed therein recorded, in the following words: (See it set forth in 1 Harr. & Johns. 16.) Also the will of Joseph Hill, dated the 20th of October 1761, whereby he devised to his granddaughter, Henry Margaret Hill, all the remainder of his tract of land called Hill's Forest, not devised to Nathaniel and Joseph Richardson. He devised to Joseph Richardson 200 acres, to be laid off at the easternmost end of Hill's Forest, and to Nathaniel Richardson 200 acres, to be laid off at the westernmost end of Hill's Forest, and the residue, 600 acres in the middle, he devised to his granddaughter Henry Margaret Hill, (now Ogle,) in fee. Also a deed from Joseph Richardson to Charles Wells, dated the 27th of March 1779, for 200 acres of land, part of the land called Hill's Forest. Also a deed from Charles Wells to George Buchanan, dated the 9th of October 1784, for the 200 acres of land, part of Hill's Forest. Also a deed from George Buchanan to James Gittings, the lessor of the plaintiff, dated the 28th of December 1789, for the last mentioned 200 acres of land. Also a deed from Benjamin Ogle, and Henry Margaret his wife, to James Bosley, dated the [**4]  25th of June 1777, for part of the tract called Hill's Forest, supposed to contain 430 acres. Also a deed from James Bosley to George Buchanan, dated the 16th of June 1784, for the last mentioned part of Hill's Forest. Also a deed from George Buchanan to James Gittings, the lessor of the plaintiff, dated the 28th of December 1789, for the last mentioned part of Hill's Forest. Also the proprietary debt books from 1754 to 1762, showing that Joseph Hill was charged with 1000 acres of Hill's Forest; also the debt books from 1762 to 1771, shewing that Joseph Hill's heirs were charged with the said land; and also the debt books in 1771, showing that Joseph Richardson was charged with 200 acres, Nathaniel Richardson with 200 acres, and Henry M. Hill with 600 acres of Hill's Forest. The defendant objected to the reading of the deed before mentioned, from Henry Hill to Joseph Hill, dated the 27th of July 1737.

a Called "Thompson's Choice"

CHASE, Ch. J. The court were of opinion, in the former trial between these parties, that a copy of a deed which needs no enrolment is not evidence. But the present question is, whether the inspeximus of the enrolment of a deed, which requires [**5]  no enrolment, is good evidence, it being accompanied with other circumstances, such as antiquity, and possession going with it.

The court are of opinion, that if possession is found to have gone agreeably to the deed, it being an ancient deed, the inspeximus of the deed, though it does not require recording, may be read in evidence, and the deed is good and effectual to pass the land. But if the jury do not find that possession has gone with the deed, then the inspeximus is not evidence, and the jury are to disregard the deed.

The court consider the distinction is well established.

2. The defendant objected to the reading in evidence the deed, herein before mentioned, from Joseph Richardson to Charles Wells, dated the 27th of March 1779, for 200 acres of land, part of Hill's Forest, as that deed was not located on the plots returned in the cause.

CHASE, Ch. J. If the title to the 200 acres, and the 600 acres, are united in the same person, by laying down the whole, the 200 acres are sufficiently located. The court are of opinion, that the deed may be read in evidence to the jury, although it has not been particularly located on the plots.

3. The first bill [**6]  of exceptions. The deed from Benjamin Ogle, and wife, to James Bosley, having been adjudged defective by the court of appeals, and the judgment in the former trial between the parties reversed, because of the opinion of this court as contained in the second bill of exceptions, and the court of appeals having expressed an opinion that the plaintiff might give evidence that Mr. Ogle resided in Prince-George's county at the time he executed the deed, if that was the case, and the plaintiff having produced, and read to the court and jury, the deed from Benjamin Ogle and Henry Margaret his wife, to James Bosley, dated the 25th of June 1777, stated to be "between Benjamin Ogle, esquire, and Henry Margaret, his wife, of Anne-Arundel county, in the state of Maryland, of the one part, and James Bosley, son of Charles, of Baltimore county, in the state aforesaid, of the other part," and that "for and in consideration of the sum of fourteen hundred pounds common current money, to them in hand already paid," Ogle, and wife granted, &c. to Bosley, "all their, and each of their right," &c. "of, in and unto, a certain tract or parcel of land, being part of a tract of land called Hill's Forest, lying [**7]  in Baltimore county, containing by estimation four hundred and thirty-one acres, with all," &c. This deed was executed by Ogle, and wife, and acknowledged as follows: "Be it remembered, that the within named Benjamin Ogle, esquire, and Henry Margaret, his wife, came before us the subscribers, justices of the peace for Prince-George's county, of the state of Maryland, and acknowledged the within deed to be their act, and the lands and premises, with their appurtenances, thereby bargained and sold, to be the estate of the within named James Bosley, son of Charles, his heirs and assigns, for ever: And the said Henry Margaret, wife to the said Benjamin Ogle, esquire, being by us examined privately out of the hearing of her husband, declared that she made the above acknowledgment willingly and freely, and without being induced thereto by force or threats of ill-usage by her husband, or fear of his displeasure.

Taken and certified;

Thos. Williams,

Thos. Boyd."

At the foot of the acknowledgment was the following certificate, given by the clerk of Prince-George's county court: "Prince-George's county, to wit: In testimony that Thomas Williams and Thomas Boyd, gentlemen,  [**8]  before whom the above acknowledgment was made, and who have thereto affixed their signatures, were at the time of taking and affixing the same, and still are, two of the justices of the peace for the county aforesaid, legally authorized and assigned, and to all certificates by them so signed, due faith and credit is and ought to be given as well in justice courts, as thereout, I have hereunto set my hand, and affixed the public seal of office, this 14th day of July, Anno Domini 1777.

(Seal.)

John Read Magruder, Clk."

The deed, with the several endorsements thereon, was recorded amongst the land records of Baltimore county, on the 20th of September 1777. The plaintiff then offered evidence to the jury, by the testimony of Benjamin Ogle, esquire, one of the grantors named in the deed, who deposed that in 1774 he became seized and possessed of an estate in Prince-George's county, called Belle Air, upon which estate there then was, and still is, a large and commodious furnished house; that he considered the city of Annapolis, near to which he had a large landed estate, as the place of his residence from the year 1770 down to this time; that in the county of Anne-Arundel [**9]  he voted, was summoned to serve as a juryman, and was permitted to enjoy the right of passing the various ferries in the said county without paying ferriage, none of which privileges or immunities were ever enjoyed by him in the county of Prince-George's. That from the time he became possessed of the estate called Belle Air, until the year 1790, it was customary for him occasionally, every year, to go with his family to that estate, and live there for a time, sometimes for a longer and sometime for a shorter period of time. That on the 25th of June 1777, he was with his wife at his seat called Belle-Air, in Prince-George's county, (their children being at West-River,) and there, together with his wife, executed and acknowledged the deed from himself and wife to James Bosley. That he was himself in the city of Annapolis in August 1777, when the British fleet passed up the Chesapeake bay, but that his family were then at Belle-Air. The plaintiff, with the consent of the defendant, produced and read in evidence the deposition of John Thomas b, in the following words: "That he hath, from an early period of his life, been acquainted with Benjamin Ogle, esquire, and with his lady; that Mr.  [**10]  Ogle resided, and still resides, in the city of Annapolis, where he has a large and commodious house and lot, his place of residence, and near to which city he held, and still continues to hold, a large and valuable landed estate; that previous to the year 1777, Mr. Ogle recovered, by a suit in chancery, from his late uncle, Col. Benjamin Tasker, a valuable landed estate in Prince-George's county, and that Mr. Ogle, during the summer season, generally, with his lady, spent a great part of his time at Belle Air, on the land recovered as aforesaid, but that his household furniture and servants still remained at his dwelling-house in Annapolis. He well remembers that Mr. Ogle and family remained at Annapolis the first part of the year 1777, he thinks until the month of April, or the beginning of May, and that Mr. and Mrs. Ogle were at Belle Air the latter part of the month of that year. In June of the same year, this affirmant was twice at Mr. Ogle's dwelling-house in Annapolis, where he and his lady then were, with his servants, and that this affirmant, as he had been accustomed for many years, lodged there. He may have been oftener with them, but of that he has no distinct recollection.  [**11]  That in August and September Mr. and Mrs. Ogle were at Belle Air; that in the fall of 1777 his kitchen, in Annapolis, was burnt down. However they were in said dwelling-house in the spring of 1778. The winter following they resided in the now government-house, and remained there until the spring of 1779. That he always did, and doth now, consider Annapolis as the place of residence of Mr. Ogle, and that he never did reside in Prince-George's county; his retiring there in the summer season, he conceived as a visit from home, and not as going to constitute a new residence." The plaintiff also offered in evidence, by the testimony of Mrs. Mary Ridout, sister to Benjamin Ogle, that her brother, upon his marriage, which took place in September 1770, settled in Annapolis, and has resided there ever since. That when he got possession of his estate called Belle Air, there was upon it a large and commodious furnished dwelling-house; that it was usual for him to go occasionally every year with his family and spend sometime at his seat; that she cannot now recollect when her brother first began to reside occasionally at his said country seat, nor can she recollect the time or season of the year [**12]  when he usually went to it, but she remembers that she herself spent the summer of 1777, at Bath, in Virginia, and upon her return home from Bath, in the month of September 1777, she called at the seat of her brother in Prince-George's county, called Belle Air, and spent some days there; at that time her brother and his family were residing there. Being asked by the counsel for the defendant, whether she considered Belle Air or Annapolis the place of residence of her brother? she answered, both; that in her estimation, when a gentleman had a town house, and country house, and occasionally spent part of his time at each of them, he resided in both of them. The defendant then produced, and swore to the jury, Henry Margaret Ogle c, who deposed, that about the middle of May 1777, her grand-mother died; that about this period, or some short time before, she sent her children to West River, in Anne-Arundel county, to the house of her uncle Mr. John Thomas, to keep them from taking the small pox, which then prevailed in Annapolis, that the children continued at West River for two or three months; that Mr. Ogle and herself, and at times herself only, went to see them at West River, and in [**13]  going to West River from Annapolis, and from West River to Annapolis, she and Mr. Ogle occasionally called at Belle-Air, their seat in Prince-George's county, and staid one or two nights; but she does not remember ever to have staid at Belle-Air more than two nights, unless her children were with her. That the deed from Mr. Ogle and herself to Bosley, of the 25th of June 1777, was executed at Belle-Air, on one of those occasional visits when she and Mr. Ogle were passing from Annapolis to West River, or from West River to Annapolis. That it was executed just before they left Belle Air, which she well remembers, because, seeing persons coming to the house, she was afraid she should be detained at Belle Air; that the persons proved to be the party who bought the land, coming to tender continental money in payment of it, and to have the deed executed. That she and Mr. Ogle had not their children at Belle Air in the year 1777, until after Mr. Ogle's return from Berkley county. That Annapolis, in Anne-Arundel county, she always considered their place of residence. That at different times of the year, and of different years, they occasionally spent part of their time with their family at [**14]  Belle Air, and in some years they went to Belle Air only for a day or two at a time. That Mr. Ogle has a large landed estate in his cultivation nearly adjoining to Annapolis. The defendant also proved by Benjamin Ogle, that he went in the year 1777 to Berkley county, in Virginia; that he went there after the 25th of June 1777, and returned before the 10th of July 1777, and that in 1777 he did not take up his temporary residence at Belle Air, until after his return from Berkley. That he was at Belle Air in 1777, before the execution of the deed, and at its execution, but does not remember the time he went there, nor how long he staid there. That from Annapolis to Mr. John Thomas's at West River, is 14 miles, to Belle Air is 18 miles, and from Belle Air to West River is 14 miles. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if they are satisfied from the evidence that Benjamin Ogle had and kept two dwelling-houses furnished, to wit, a town house and country house, from the year 1774 to the year 1780, the town house situate in Annapolis, in the county of Anne-Arundel, the country house situate in the county of Prince-George's, and that during [**15]  the time his residence was principally in Annapolis, tho' in each of the years aforesaid he occasionally went with his family to his country house in Prince-George's, and resided there for a time, sometimes for a longer and sometimes for a shorter period in each of the years aforesaid, and that he with his wife were, on the 25th of June 1777, at his country house in Prince George's county, and then and there, with his wife, executed the deed of that date to Bosley, that then the deed, so executed, was and is good and sufficient in law to pass and transfer, from Ogle to Bosley, all the interest which Ogle then had in and to the lands mentioned in, and intended to be conveyed by, the deed.

b Mr. Thomas resided at West River, and was uncle to Mrs. Ogle.

c The counsel for the plaintiff objected to Mrs. Ogle's being examined, contending that she was called to defeat her own deed. The case of Wilmot vs. Talbot, 3 Harr. & M'Hen. 2, was cited by the defendant's counsel to show, that a wife was examined to prove that her husband had destroyed the will of his father, whereby he had devised the land in question to his grandson.

CHASE, Ch. J. The Court are of opinion, that Mrs. Ogle is a legal and competent witness. The acknowledgment of the deed made by her is defective, and the deed does not operate to convey more than Mr. Ogle's life estate, and the verdict in this case would not be evidence for her or her heirs. [**16]  

CHASE, Ch. J. The court are of opinion, that this case is not distinguishable from the case of Sim & Lee's Lessee vs Deakins, and that the principles of that case must govern. In that case Warder, by coming into Maryland, acquired a temporary residence sufficient, under the act of assembly, for the purpose of executing and acknowledging the deed. That while in Maryland he owed temporary allegiance, and during his residence was subject to the laws.

By the law of nations a stranger is subject to, and has the protection of the laws of the country or state into which he may go. But the court are of opinion, that the term residence is a general term merely to express the abode of the person.

The court are of opinion, that if the jury should find that Benjamin Ogle's principal residence was in Annapolis, in Anne-Arundel county; that he voted, served on juries, and was enrolled in the militia in that county, and no other county; and that from the year 1774 to the year 1780, he with his family temporarily resided at Belle Air, in Prince-George's county, during the summer and autumn of the said years, sometimes for a longer and sometimes for a shorter time; and should also find [**17]  that he was with his wife at his said seat in Prince George's county on the 25th of June 1777, the time of the execution of the deed to Bosley, although they should find that he, with his wife, on the said last mentioned day, stopped at Belle Air, his temporary residence in Prince-George's county, for a short time only, on their way to or from West-River, in Anne-Arundel county, and during such continuance executed and acknowledged the deed to Bosley; and that Ogle, with his wife, immediately after the execution and acknowledgment to the deed, left Belle Air, and did not go thither with his family to remain during a part of the summer and autumn, according to his said custom, until several weeks after the time of executing the deed, that then the deed is good and valid in law to pass and transfer all the interest of Ogle in the land to Bosley.

The court do not say, that a person going from one county to another can acknowledge a deed for lands laying in a different county; but that a temporary residence, and not a mere transitory residence, is sufficient for that purpose.

The clerk of the county court is a person intrusted to make the certificate, that the persons, before [**18]  whom the acknowledgment of the deed was made, were justices of the peace of the county. He had a knowledge of the facts whereupon to ground his certificate, which is to authorize the recording the deed. The court think a substantial compliance with the directions of the act is all that is requisite; and the court consider the words used in the certificate are words of that import. The words legally authorized, are of the same import as "duly commissioned and sworn." The court consider that the justices could not be legally authorized unless they had been commissioned and sworn.

The court are of opinion, that the certificate of the clerk of Prince-George's county court, endorsed on the deed from Benjamin Ogle and wife to James Bosley, is good and sufficient in law to warrant the enrolling the deed by the clerk of Baltimore county court among the land records of that county. The defendant excepted.

4. The second bill of exceptions. The defendant, to make title to the lands within the lines from figures, &c. on the plots in the cause, offered evidence to prove the plots and explanations; and gave in evidence the certificates and patents d of the tracts of land called Cullen's [**19]  Lot and Cullen's Addition; the certificate of the former tract dated the 17th of June 1683, and of the latter tract dated the 25th of September 1683; and also gave in evidence the certificate and patent of Hill's Forest before mentioned. And also gave in evidence, that the whole of the land contained within the lines on the plots from 60, shaded blue, to red 7, to red 8, to red 9, to 61, and with the fence shaded yellow to 60, was in the actual possession, enclosure and cultivation, of the defendant, and those under whom he claims, claiming the whole thereof as his and their property for the space of fifteen years, and that then a fence was made from red 7 to X, and from X to 60, and the whole of the land included in the fence from X to red 7, red 8, red 9. to 61, to 60, to X, was continued for seven years as the fence and the inclosure of the defendant, claiming the same as his own before the bringing this ejectment. In this case the testimony was, that the fence from 60 to 52, to 53, and so on to 60, was made by the defendant, and those under whom he claims, before the year 1774, and continued to run thus until the year 1783, when the fence was altered, and run from 60 to red 7,  [**20]  8, 9, black 61 to 60; that this last fence from red 7, 8, 9 to 61, was in the year 1782 put up by those under whom the plaintiff claims, and those under whom the defendant claims, jointly; that in the latter part of the year 1782, or beginning of the year 1783, the plaintiff, and those under whom he claims, put up the fence running from red 7 to X, as a fence belonging to Hill's Forest, and the owners thereof; that immediately after, in the year 1783, the defendant removed the fence from 60 to red 7, and run the same from 60 across to X, and joined the same to the fence so made by the plaintiff from red 7 to X. The defendant thereupon prayed the opinion of the court, and their directions to the jury, that if they were of opinion from the evidence, that the defendant, and those under whom he claims, have held by enclosure and cultivation for more than twenty years, the land included within the lines from 60 to red 7, and red 8, red 9, to 61 to 60, claiming the same as his own, that then he has title to the same by adversary possession, although before the expiration of the twenty years the fence and enclosure was removed from red 7 to X, to 60, and thereby enlarged the enclosure.

d Neither of the tracts were patented. [**21]  

CHASE, Ch. J. The Court refuse to give the direction prayed, being of opinion that if the jury should find that the plaintiff's lessor, under the direction of the court already given, hath made title to all the tract of land called Hill's Forest, except the 200 acres devised to Nathaniel Richardson; and should also find that the land, to which the defendant claims title by adversary possession, in manner herein stated, is included within the true location of Hill's Forest, that in such case the defendant has no title to the land by adversary possession, having abandoned it by removing his enclosures. The defendant excepted.

5. The third bill of exceptions. The plaintiff to make title to the land claimed by him in this action, read in evidence to the jury the certificate and patent of Hill's Forest, and showed a title to the land in the lessor of the plaintiff, under the grantee of the land; and to prove that the said tract is truly located on the plots by him as his claim and pretensions, gave in evidence the plots, and the certificate of a tract of land called Thompson's Choice, surveyed for James Thompson on the 12th of March 1679, in virtue of a warrant for 550 acres,  [**22]  granted him the 14th of January 1679, and also a warrant granted him the 24th of January 1679, for 250 acres, whereby "was laid out for the said Thompson a tract of land called Thompson's Choice, lying in Baltimore county, on the Ridge of Gunpowder river. Beginning at a bounded oak, being the westernmost bounds of a tract of land late laid out for Major Sewell e, and running W 500 perches to a bounded oak standing by the great falls, and running N from the said oak 320 perches, then E 500 perches, then with a straight line to the first bounded tree, containing and laid out for 1000 acres of land more or less." And also gave evidence to prove, that the land called Thompson's Choice is truly located by him on the plots. He also offered evidence to prove the true location of Thompson's Choice to be from the letter Q on the plots, and from thence to R, to S, to T, to Q. The defendant then offered evidence to prove, that the true location of the said land was from I, thence to 10, to 11, to 12, to I. There was no evidence given that Thompson's Choice was ever run, held or claimed, by any person interested in the said land, as running from its beginning to Gunpowder river, except so far [**23]  as relates to the field at the figures 10 on the plots, which field was laid down and proved by the plaintiff as an ancient possession under the title of Thompson's Choice. The defendant then prayed the opinion of the court, and their direction to the jury, that inasmuch as no evidence has been given of the bounded tree called for by the certificate of Thompson's Choice, at the end of its first line, nor of the place where the tree stood, the first line must, according to, and by virtue of the expressions in the certificate, be run so as to terminate at the great falls of Gunpowder river, from whence the remaining courses of the land must be run according to the courses and distances expressed in the certificate thereof.

e Called Sewell's Fancy.

CHASE, Ch. J. The court refuse to give the direction as prayed. The court are of opinion, and so direct the jury, that the expressions of the certificate of Thompson's Choice, as to the termination of the first line thereof, do not operate to bind that line to terminate at the great falls, although no evidence be given of the tree or of the place where it stood. The defendant excepted.

6. The defendant offered in evidence [**24]  the declarations of Col. Young, deceased, then seized of Sewell's Fancy, to prove the end of the first line of that tract, which is the beginning of Thompson's Choice located by the defendant.

CHASE, Ch. J. The court reject the declarations offered in evidence, Sewell's Fancy not being located on the plots; and although the second line of that tract runs off from Thompson's Choice, yet non constat that Young was not attempting to carry back the first boundary or beginning of Sewell's Fancy, or thus interested.

Verdict. "The jury find for the plaintiff, and say that the true location of Hill's Forest begins at T, and runs to U, thence to V, thence to W, thence home to T. They further say the true location of Cullen's Lot begins at A, and runs to B, thence with the manor line to C, thence to I, thence home to A. That Cullen's Addition begins at C, standing on the manor line, then runs to D, to G, to H, thence home to C; and lastly, they find for the plaintiff all the lands called Hill's Forest, as above located, which lies clear of the lands called Cullen's Lot, and Cullen's Addition, as above located, and which lies to the eastward of the said division line between the plaintiff's [**25]  lessor and Joseph Slee, from red B to red A continued, until it intersects the out line of Hill's Forest as above located." Judgment. That the plaintiff recover against the defendant "his term yet to come and unexpired of, in and unto, all that part of the tract of land called Hill's Forest, situate in Baltimore county aforesaid, located upon the plots returned in this cause, beginning at the letter T, and running to U, thence to V, thence to W, and thence home to T, which lies clear of the land called Cullen's Lot, also located upon the said plots, beginning at A and running to B, thence with the manor line to C, thence to I, and thence home to A, and which lies also clear of the land called Cullen's Addition, also located on the said plots, beginning at C, standing on the manor line, then running to D, then to G, then to H, and thence home to C, and also which lies to the eastward of the division line between James Gittings, the lessor of the plaintiff, and Joseph Slee, from red B to red A continued, until it intersects the out line of the said land called Hill's Forest as above located, so as aforesaid by the jurors aforesaid found," &c. On this judgment the defendant brought a [**26]  writ of error returnable to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

If the possession of land has gone agreeably to an ancient deed, which needed no enrolment, the inspeximus of the deed may be read in evidence, and is effectual to pass the land

Where a deed for part of a tract of land has not been particularly located on the plots in the cause, it may be read in evidence if the whole tract is united in the same person, and the whole has been located

A feme covert, one of the grantors in a deed conveying a tract of land, the acknowledgment of which by her having been declared defective, was admitted to give evidence on the part of the defendant in an action of ejectment brought for the same land by a person claiming under her deed. (Note)

If a grantor of land, residing in a particular county, and having a temporary residence in another county, in neither of which counties does the land lie, acknowledges the deed in the county in which his temporary residence is, such deed is not good and valid in law to pass and transfer the grantor's interest in the land

A temporary residence in any county of the state is not sufficient to enable a grantor, being a citizen of the state, to acknowledge a deed, during such temporary residence, for land lying in any other county of the state.

The words "legally authorized and assigned," in a certificate of the clerk of a county court to a deed acknowledged before two justices of the peace of that county, is a substantial compliance with the directions, and within the meaning of the act of November 1766, ch. 14, and are words of the same import as "duly commissioned and sworn"

Where the defendant in an action of ejectment, was in possession of 100 acres of land, by enclosures and cultivation, for 15 years, and then enlarged his enclosures so as to include 150 acres, and he possessed the same, as enlarged, by enclosures for six years thereafter, claiming the same as his own--Held, that he had title to the 100 acres by adversary possession.

Where the expressions used in a grant of land describe it as "lying on the ridge of Gunpowder river, beginning at a bounded oak, being the westernmost bounds of a tract of land laid out for M S, and running west 500 ps. to a bounded oak standing by the Great Falls, and running N from the said oak," &c.--Held, that they do not operate to bind the first line to terminate at the Great Falls, although no evidence be given of the tree or place where it stood

The declarations by a deceased person, then seized of a particular tract of land not located on the plots in the cause, were offered in evidence by the defendant in an action of ejectment, to prove the end of the first line of that tract, which was the beginning of the land claimed and located on the plots by the defendant,--Held, that the declarations were not admissible in evidence.

In an action of ejectment for 50 acres of arable land, 10 acres of meadow, and 100 acres of woodland, part of a tract of land called H F, the jury, by their verdict, found the true location of that tract, and also the locations of other tracts of land for which the defendant took defence. They also found for the plaintiff all the land called H F, as located by them, and which lies clear of the other tracts, so located by them, and which lies to the eastward of a division line between the plaintiff's lessor and J S, from a particular point to another--Held, that the verdict, and the judgment thereon rendered, were not uncertain, and were not for more land than, the plaintiff claimed in his action.  

COUNSEL:
Martin, (Attorney General,) for the Plaintiff, cited Bull, N. P. 254. Style, 205, 445. 2 Bac. Ab. 308. Kendall's case, 3 Lev. 387, 888. Medlicott vs. Joyner, 1 Mod. 4. Martin vs Monke, 5 Mod. 211. Sir Edward Seymour's case, 10 Mod. 8. Combs vs. Dowell, 2 Vern. 591. Stanyon vs. Davis, 6 Mod. 225. Taylor vs. Jones, 1 Ld. Raym. 746. Woodward vs. Aston, 1 Vent. 296, 297. Saltern vs. Melhuish, Ambl. 247, 248 Gilb. L. E. 97, 98, 101. Lofft's Gilb. 102. 2 Bac. Ab. tit. Evidence, (F) 646. 3 Com. Dig. tit. Evidence, (B. 2;) and Smartle vs. Williams, 1 Salk. 280, 281.

Martin, (Attorney-General,) for the Plaintiff, referred to Hall's Lessee vs. Gough, 1 Harr. & Johns. 119.

Martin, (Attorney General,) and Mason, for the plaintiff, stated, that the question was, whether Mr. Ogle had, on the testimony in the cause, such a living or residence in Prince-George's county as to justify his acknowledging in that county the deed from him and wife to Bosley? Or whether a deed acknowledged in Prince-George's county, before two justices of the peace of that county, for lands lying in Baltimore county, by persons who are stated in [**27]  the deed to be of Anne-Arundel county, was a good and sufficient deed in law to pass and transfer the estate to the grantee? To show that Mr. Ogle had a sufficient residence in Prince-George's county, to enable him to execute the deed in that county, they referred to the acts of 1715, ch 47, s. 8, 9, and November 1766, ch. 14, s. 2, 3. Sim & Lee's Lessee vs Deakins, 2 Harr. & M'Hen 46. Johns. Dict. tit. Reside. Foster's Cr. L. 76; and 4 Coke, 40.

Pinkney, Key, Johnson & Horper, for the defendant, stated, that the question submitted to the court was, what constituted a residence within the meaning of the act of November 1766, ch. 14, s. 2, 3? They contended, 1. That at the time the deed from Ogle and wife to Bosley was executed, the grantors did not reside in the county of Prince-George's, and, therefore, that deed did not transfer the estate thereby intended to be conveyed, to the grantee. They referred to the acts of 1715, ch. 47, s. 8, 9; November 1766, ch. 14, s. 2, 3, July 1729, ch. 8 s. 5; 1793, ch. 53, s. 7, 22; and 1796, ch 43, s. 14. Const. Art. 2, 16, 42. The act of 1799, ch 50, s. 11, 12. Johns. Dict. tit. Reside--Residence--Resident, and the several examples. Boyer's [**28]  Dict. tit. Resider. Cunn. Dict. tit. Residence. Jacob's L. D. tit. Resiance--Resiant.

2. They also contended, that the certificate made on the deed by the clerk of Prince-George's county court does not pursue the words of the act of assembly of November 1766, ch. 14, s. S, he having used the words "legally authorised and assigned." instead of the words of the act, "duly commissioned and sworn." That intendment could not be admitted to supply the omission of the words used in the law; and that if intendment could be admitted, there was not sufficient matter stated in the certificate to show that the justices had been sworn. They referred to the several decisions made by this court as to the acknowledgments of deeds by femes covert grantors, also the acts of February 1777, ch. 5, & 1796, ch. 43, s. 17; and Dyson vs. West, 1 Harr. & Johns. 367.

Martin, (Attorney General,) and Mason, in reply to the second point, referred to the acts of 1785, ch. 9, s. 8, 9, and 1797, ch. 103. Griffith's Lessee v Ridgely, 2 Harr, & M'Hen. 418; and Sim & Lee's Lessee vs. Deakins, Ibid 46.

Key, Harper, and Johnson (Attorney-General,) for the Plaintiff in error, in arguing the points which [**29]  arose under the first bill of exceptions, referred to the same authorities which were cited on the part of their client in the general court.

On the second bill of exceptions, they stated that the principle established by the general court, in their opinion given in this bill of exceptions was, that if a man has a parcel of land under inclosure for 15 years, and then enlarges the parcel, and holds the whole by inclosure for seven years, he did not acquire a title in the first parcel by 20 years possession by inclosure. In opposition to which they cited Russell's, Lessee vs. Baker, 1 Harr. & Johns. 71.

On the third bill of exceptions they cited Howard vs. Moale, et al. Lessee, (ante, 269, 270.)

They objected to the verdict and judgment on two grounds--1. For uncertainty; and 2. For excess over and above the demand--the verdict and judgment being for more land than was claimed in the action. They cited 2 Bac. Ab. tit. Damages, (D. 2.) Ibid tit. Error, (K. 6.) Crumpton vs. Smith, Yelv. 5. 1 Bulst. 49. Clements vs. Waller, 4 Burr 2156. Cuming vs. Sibly, Ibid 2490. Parker vs. Harris, 1 Salk. 162; and Philips vs. Bury, 1 Ld. Raym. 6.

Martin and T. Buchanan, for the Defendant [**30]  in error, in their argument on the first bill of exceptions, relied upon the authorities cited on the part of the plaintiff in the court below.

On the points respecting the verdict and judgment, they cited 7 Bac. Ab. tit. Verdict, (M.) Co. Litt. 227. a. Trials Per Pais, 298, 304. Carter's Rep. 80, 94. Vin. Ab. tit. Trial, 407, pl. 29. 2 Roll. Ab. tit. Trial, 707, pl. 42. 2 Bac. Ab. tit. Ejectment, (F.) The act of 1805, ch. 65, s. 44. 1 Tidd's Pr. 662, 663. Sullivane vs. Seagrave, 1 Stra. 695. 2 Bac. Ab. tit. Ejectment, (D. 2.) 419, 420. Cottingham vs. King, 1 Burr. 629. Conner vs. West, 5 Burr. 2673; and Howard vs. Moale, et al. Lessee, (ante 249.) 

JUDGES:
The cause was argued at the last term, before BUCHANAN, NICHOLSON, and GANTT, J.  

OPINION:

 [*395]  THE COURT, at this term, dissented from the opinions of the General Court in the first and second bills of exceptions, and concurred with that in the third bill of exceptions. But the court were of opinion, that the certificate of the clerk of Prince-George's county court gave an authority to the clerk of Baltimore county court to record the deed from Ogle and wife to Bosley, mentioned in the first bill [**31]  of exceptions, the court considering the words "legally authorized and assigned," within the meaning of the act of November 1766, ch. 14.
JUDGMENT REVERSED.  

8 of 28 DOCUMENTS 

SINGERY VS. THE ATTORNEY-GENERAL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 487; 1809 Md. LEXIS 25 

December, 1809, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill filed in the name of the Attorney-General, at the relation of Ezekiel Boreing, on the 19th of November 1799, stated, that in the year 1770, the surveyor of Baltimore county, being directed by the commissioners of the Lord Proprietary to survey and lay out, for any persons that might apply to him, any part of the Reserve land in that county, to enable them to contract with the commissioners for the purchase of such land, James Calder, as surveyor of the county, by virtue of the power and authority from the commissioners, did, on the 30th of September 1770, survey and lay out for Singery, (the appellant,) a tract of land in the Reserve called Singery's Trouting Streams, containing 178 acres, and included within the courses and distances described in a certificate of the courses, taken from the original entry in the surveyor's books, &c. "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 W 9 perches from George's Run, and running thence," (nineteen courses and distances without calls,) "and thence with a straight line to [**2]  the beginning, containing 178 acres, and called Singery's Trouting Streams. September 30th 1770." That the certificate made out by Calder, as surveyor of the county, for Singery's Trouting Streams, to be returned to the land office, corresponded in all respects with the record of the courses kept by the surveyor himself as above described, but that Singery combining, &c. how to impose upon and defraud the Proprietary out of his land, and the purchase money which he would otherwise be entitled to, returned to the land office a certificate of the courses of Singery's Trouting Streams different from that which was made out by the surveyor, as will more fully appear by the certificate and plot of the land recorded in the land office. That in the true and genuine certificate of Singery's Trouting Streams, there is no call for "the beginning trees of Petticoat's Loose," but that the certificate returned to the land office by Singery, has this expression, which the relator expressly states was forged and inserted by Singery for the purpose of extending the twelfth line of the tract and thereby taking in more land than he was entitled to. That by the certificate, as made out by Calder before [**3]  mentioned, Singery's Trouting Streams is made to contain 178 acres, but that by the certificate returned to the land office by Singery, that tract, by virtue of the call above mentioned, contains 560 acres, as Singery contends, though the certificate expresses only 178 acres, as will appear by a plot of the land exhibited, and which was made out and returned by the surveyor of Baltimore county to the general court, in an action of ejectment therein depending for the land between the relator's lessee and Singery. That Singery, on the 20th of April 1775, obtained a patent on the said forged certificate, and thereby got 382 acres of land more than he was entitled to, or compounded for with the Proprietary, or his agents. That by virtue of two special warrants obtained from the land office in the year 1793, the relator had surveyed for him, by the surveyor of Baltimore county, 300 acres of land, called Boreing's Habitation Rock, and returned a certificate thereof, and that afterwards, on the 24th of April 1795, a patent issued to him for the same. That the land taken up, and paid for by him, called Boreing's Habitation Rock, is claimed by Singery under the false and forged certificate [**4]  and patent thereon, as will fully appear by the plot before referred to; and that Singery has possession of the land, and holds it as being within the lines of Singery's Trouting Streams. But the relator expressly charges, that he has instituted an ejectment in the general court against Singery to recover the land, and obtained a verdict and judgment in his favour, from which decision Singery has appealed to the court of appeals a; and he is apprehensive that the said impositions and forgery will be productive of endless controversies and disputes between him and Singery, unless it can be corrected by this court. That by the plot returned to the land office, with the certificate on which the patent issued, it is obvious that Singery's Trouting Streams, (which included two old surveys, namely Petticoat's Loose and Merryman's Mountain and a very small piece of vacancy,) could not contain more than 178 acres, as mentioned in the certificate, because by the plot it appears that Petticoat's Loose, and Merryman's Mountain, were almost contiguous and adjoining tracts, and there was only a small vacancy between them; but by extending the twelfth line of Singery's Trouting Streams to the surreptitious [**5]  "beginning trees of Petticoat's Loose," as now contended for by Singery, there will be created a vacancy of 382 acres between the two tracts, which the relator contends is not the fact, but that it is an imposition in Singery. That at the time Singery's Trouting Streams was surveyed, there was a rule or law of the land office prohibiting the surveyors from expressing calls in any certificates of surveys made by them under any warrant from that office; and that the call in the certificate of Singery's Trouting Streams, is in direct violation of that rule, as will appear by recurring to the rules of the land office, and by the deposition of Calder, the surveyor, now filed. Prayer, that the certificate and patent of Singery's Trouting Streams may be vacated, or corrected, so as to exclude the call, and restrict Singery to the courses and distances specified in the certificate, and for further relief, &c. The answer of Singery, the defendant, states that commissioners were appointed by the Lord Proprietary to make sale of his reserved lands, or of parts thereof, and the defendant being in possession of two surveys within the reserves of Baltimore county, the one called Merryman's Mountain,  [**6]  and the other called Petticoat's Loose, purchased the same of the commissioners, and he believes the two parcels of land were reduced into one entire tract under the authority of Calder, but not by him, for the defendant states that his survey and certificate were made out by a deputy of Calder, who usually made the surveys in the reserves of Baltimore. That his object in the purchase and survey was to join his two tracts; and a survey he admits was made called Singery's Trouting Streams, and returned to the office, on which patent afterwards issued to the defendant. That he does not know, nor was he ever privy, to any fraud or deception in making the survey or certificate of that land; nor does he know, admit or believe, there was any. He admits the call in the certificate greatly increases the quantity of his land, but he states the call was essentially necessary to join his two tracts together, which was the object of his purchase, and if the surveyor mistook the length of line, or quantity of acres, it was not with the consent, knowledge or privity, of the defendant. He does not believe the certificate recorded in Calder's book to be a true copy of his certificate; and that Calder [**7]  is grossly mistaken in two important facts, and those facts are misconceived and mistaken in the bill of complaint. That Calder never did make out or sign a certificate of Singery's Trouting Streams for the office, but that the same was made out, signed and returned, by the deputy, and is now in the office, and it was usual and customary for Calder's deputy so to do with his assent, as will appear by a great number of original certificates in the land office, made out at the very period when the defendant's was, and some of them on surveys made in the reserves. That the certificate returned to the office is the true and genuine certificate of Singery's Trouting Streams, which was made out for, and delivered to him as such, by Calder in person, to whom the defendant carried it, and the same has a call to the beginning trees of Petticoat's Loose, which was a well known place, and intended to be run to and called for; and the defendant can prove, that on the original survey made, the beginning trees of Petticoat's Loose were actually run to, and he offered such evidence on the trial of the ejectment cause referred to by the bill of complaint, which testimony the general court refused [**8]  to admit. The defendant does not pretend to know what may have been the rules of the land office at that time as to the calls, but Calder is mistaken in his deposition filed, because there are many certificates in the office made out and signed by him, of surveys at that time of reserve lands similar to the defendants, in which Calder bath inserted calls. The defendant denies all fraud, combination, &c. That the call in his certificate and patent were of such notoriety, and his possession of, and the beginning trees of Petticoat's Loose were so well known to the neighborhood, and to the surveyors in the county, that younger surveys were made, which called for and run with the line and to the call mentioned in the defendant's patent, as is demonstrated by the location of the tract of land called Horatio's Lot, on the plot filed. That the defendant, actuated by the most honest principles, made a resurvey on his land in 1792, and included the whole of his lands, and returned a certificate to the office, and the excess of the number of acres was called surplus; that he was willing to pay for it, and made his resurvey with that intent, but by reason of the act of 1785, ch. 81, the treasurer [**9]  could not receive such payment, and it was not until after this transaction that the relator, combining and leaguing with Calder, who to cover his own negligence and malconduct in office, combined with the relator to cheat the defendant out of his land, and recommended the relator to take up the surplus as vacancy, which Calder was to support, by throwing all blame on his deputy, although the records of the land office falsify the oath of Calder in two essential facts; first, they show that it was customary for his deputies to make out certificates and sign his name; and secondly, that he himself, in certificates made out and signed by him, did give calls. He admits the action of ejectment instituted in the general court by the lessee of the relator, for recovery of part of the defendant's land, included in the relator's tract called Boreing's Habitation Rock, but the facts never came to issue; that the case was determined on a point of law, to which a bill of exceptions was taken, and the judgment of the court was appealed from, and the appeal will go up to the court of appeals in June next. He does not believe the relator is entitled in any court of law or equity to a vacation of [**10]  the defendant's original grant, the same can only originate in a desire to ruin and oppress the defendant; because if the relator ultimately succeeds in the court of appeals, a decree to convey all the defendant's right and title to the relator, in fee, of all the land contained in his patent of Boreing's Habitation Rock, will be sufficient. He further states, that he claims the whole of the land included in his patent called Singery's Trouting Streams; that the call was an honest one; that the tracts of land called Merryman's Mountain and Petticoat's Loose, never did lay contiguous or close to each other, but always lay, were located and held, as by the table of courses thereof on the plot filed; that the survey was made by a deputy of Calder named James Hall, who made out the certificate, as was common with Calder's deputies in the reserves, and that Calder did not himself make the same out; and the defendant believes the mistake exists on Calder's books; that the entry was made therein from the deputy's field notes, and the call omitted to be inserted; that the call did exist in the original, and was actually bona fide run to at the time of the survey; and the defendant ought not [**11]  to lose his land from the fraud, negligence or mistake, of Calder and his deputies.

a Vide 4 Harr. & M'Hen. 398.

The testimony of a number of witnesses was taken under commissions and returned. The defendant afterwards by his petition, (referring to the proceedings herein set forth, and to the action of ejectment depending between the parties,) stated that the judgment of the general court in that action had been reversed in the court of appeals, and the record returned to the general court, with a procedendo directing a new trial. That since this cause has been set down for hearing in this court, the action of ejectment remanded to the general court for a new trial, has been tried, and a verdict rendered in favour of the defendant. (ante, 455.) That on that trial, the general court gave a direction to the jury, that if the certificate of Singery's Trouting Streams was forged, that the patent thereon issued was void, or an opinion to that effect. But on a full and fair trial before the jury, a verdict was rendered in favour of the defendant, by which the fairness of the certificate, and validity of the patent was ascertained. That inasmuch as these facts have happened [**12]  since this cause has been set down for hearing in this court, he is apprehensive that he will not be able to avail himself thereof, without the order of this court. Prayer for liberty to exhibit as proof the record of the proceedings in the ejectment, and that the same may be taken as part of the proceedings in this cause.

HANSON, Chancellor, (December 6, 1805.) The chancellor has considered the petition of the defendant. It appears to him convenient to both parties in this cause to grant the prayer of the petition, instead of having proceedings, which would have the same effect as is proposed by the petition, and would be attended with delay and expense. It is therefore ordered, that the prayer be granted; and that the record of the proceedings in the ejectment, stated in the petition, be filed in this cause, and taken as part of the proceedings therein.

The record was accordingly filed; and the case was argued, and submitted to the chancellor for his decision.

KILTY, Chancellor, (July term, 1806.) The object of the bill is, that the certificate and patent of Singery's Trouting Streams, therein mentioned to have been fraudulently obtained, may be vacated and annulled,  [**13]  or corrected in the manner stated.

It was filed on the 19th of November 1799, at which times as the bill states, Boreing had obtained a verdict and judgment in his favour in an ejectment for the land, from which Singery had appealed.

On the 13th of November 1805, a petition was presented to the late chancellor by Singery, stating the verdict and appeal, and also stating that the judgment had been reversed, and that on the suit being again tried, a verdict was rendered in his favour, and praying that the record of the proceedings in the ejectment might be taken as part of the proceedings in this cause; which prayer was granted, as appears by the order of December 6th, 1805.

The proceedings have accordingly been filed, and from their connection with the other testimony, the chancellor has felt considerable difficulty in forming his opinion.

He was at first persuaded that this verdict was either conclusive as to the question of fraud, or of such weight as to prevent his drawing a different conclusion from the whole of the evidence. The authorities on this subject are not very clear. The case most in favour of this position, is Underwood vs. Morduant, 2 Vernon, 238,  [**14]  in which the court declared, that the question was, whether an assignment was fraudulent or not; and that having been tried at law there was no room for equity to interfere; that if they should relieve the plaintiff, they must declare that not to be fraudulent in equity which was found to be so at law.

But on further consideration he has changed his opinion, on the following grounds: That the suit in this case referred to, having been an ejectment, the verdict is not final between the parties, but another ejectment may be brought. On such further suit the verdict may be given in evidence as the opinion of twelve men on the fact, but it cannot be conclusive, as that would be to defeat the object of the suit. And if in a court of law the question of fraud may be again examined, it cannot be closed against a court of equity, in which fraud is the great subject of relief.

It must be admitted also, that the record, which is thus made part of the proceedings, cannot have a greater effect in bar to this suit, than if it had been used as a plea.

A decree determining the rights of the parties might be pleaded to this bill, and so might a judgment of a court of law, but it must [**15]  be a judgment which has finally determined the rights of the parties.

The chancellor, considering himself thus empowered to inquire into the fraud alleged in the bill, is satisfied from the evidence, (notwithstanding the verdict showing the opinion of the jury to the contrary,) that the charge is established, and that the complainant is entitled to relief.

In addition to the particular object of the bill, as herein before stated, there is a prayer for general relief, and Boreing, at whose relation the bill is filed, is satisfied that Singery's patent should remain valid for such part of the land as is not included in the patent for Boreing's Habitation Rock; and it appears that for so much the public has been paid by Singery. It is therefore considered proper in this case, and conformable to the practice in similar cases, to decree a conveyance from Singery of the part claimed by Boreing, instead of vacating the patent to Singery, as prayed. Decreed, that Singery do, by a good and sufficient deed, &c. give, grant, &c. to Boreing, and his heirs, all that part of the land in Baltimore county, now held by him under his patent for a tract of land called Singery's Trouting Streams,  [**16]  which is comprehended in the lines of a tract of land called Boreing's Habitation Rock, which was granted by this state to Ezekiel Boreing on the 24th of April 1795, beginning, &c. with all and singular the appurtenances, &c. and all the right, title and interest, of Singery, therein and thereto. And upon the due execution and acknowledgment and recording of the deed, Boreing shall be entitled to hold the same free, clear and discharged, from all claim of the defendant. And that the defendant pay to the complainant the costs of this suit, &c. From this decree the defendant appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Where a court of law admitted evidence to prove that a certificate of survey was forged, such evidence could have been deemed admissible, only on the ground, that if the certificate was proved to be forged, the grant obtained on it was fraudulent, and could have no operation in law to pass the land to the grantee.

Fraud may be inquired into as well at law as in equity; and where frauds are clearly established, the courts of law and of equity have concurrent jurisdiction.

Where the fact of the forgery of a certificate of survey, under the grant on which the defendant claimed, came before the court and jury collaterally, and was not directly in question, the issue between the parties being, who had the right of possession to the land in controversy, the verdict in favour of the defendant, cannot be received as evidence to prove that the certificate was not forged.

The court not having directed the jury that if they found the certificate forged, that nothing passed by the grant, it may be questioned, whether the verdict could conclude the plaintiff if the fact of forgery had been directly in issue.

On a bill in chancery for vacating a certificate of survey and grant, on the ground of fraud, committed by a forgery of the certificate--Held, that the court of chancery had jurisdiction although the question of forgery of the same certificate had, in an action of ejectment between the same parties come collaterally before a court of law and jury, and although that court admitted evidence to establish the forgery, and the jury gave their verdict in favour of the defendant, who claimed under the certificate alleged to be forged.

Although on a bill in chancery charging forgery, the defendant cannot be compelled to answer any fact which will criminate himself, yet that court has jurisdiction over the case; and on proof of the forgery, by which a fraud has been committed, will grant relief by vacating the grant, &c, from whence the injury has arisen, or will make such decree as the circumstances of the case render necessary.

The forgery of a certificate of survey, and the fraud consequent thereon, being fully established, Decreed by the court of chancery, that the defendant, (claiming under such certificate and the grant thereon,) should convey to the complainant all that part of the land held by the defendant under such grant, and which is comprehended in the lines of the tract of land granted to the complainant.  

COUNSEL:
Shaaff, and Johnson, (Attorney-General,) for the Appellant, cited Underwood vs. Morduant, 2 Vern. 238. Bright vs. Eynon, 1 Burr. 376. Fermor's case, 3 Coke, 78. 1 Fonbl. 13, (notes.) Moses vs. Macferlan, 2 Burr. 1009; and Negro James vs. Gaither, (ante 176.)

Martin and T. Buchanan, for the Appellee, cited Gitinsborough vs. Gifford, 2 P. Wms. 425. Kent vs. Bridgman, Pre. in Chan. 233. Faulconberg vs. Pierce, Ambl. 210. Stace vs. Mabbott, 2 Ves. 552. Matthews vs. Warner, 4 Ves. 206. 'The Proprietary vs. Jennings, 1 Harr. & M'Hen. 92. Russell & Lux vs. Falls, 3 Harr.  [**17]  & M'Hen. 457. The State vs. Reed, 4 Harr. & M'Hen. 6; and Garretson vs. Cole, 1 Harr. & Johns. 370.  

JUDGES:
The cause was argued before CHASE, Ch. J., GANTT, and EARLE, J. GANTT, J. dissented.  

OPINIONBY:
CHASE 

OPINION:

 [*496]  CHASE, Ch. J. delivered the opinion of the court. In the ejectment brought by the lessee of Boreing, for Boreing's Habitation Rock, against Singery, the question in issue between the parties, on the different locations on the plots, was, who was entitled to that part of Boreing's Habitation Rock which was covered by or included within Singery's Trouting Streams? This question might have been decided on the different certificates and grants of the parties, and such evidence as might have ascertained what was the true location of the respective tracts claimed by the litigating parties. It appears by the record and testimony in this case, that the certificate and grant of Singery's Trouting Streams are older than the certificate and grant of Boreing's Habitation Rock, and would have a preference, so far as the conflicting grants interfered.
To repel the defendant's defence, and to impeach his title, the plaintiff offered to prove, that the certificate [**18]  of Singery's Trouting Streams was forged, and the evidence for that purpose was admitted by the court; and such evidence could not have been deemed admissible by the court, only on the ground that if it was proved to be forged, the grant obtained on it was fraudulent, and could not have any operation in law to pass the land to the defendant. That decision must rest on the principle, that what commences in iniquity must transmit its impure or deleterious quality to the grant which was intended to perfect or complete the title of the party, and will invalidate it, unless the Proprietary was apprised of the mal-practice before the issuing the grant. The evidence in a court of law, and in a court of equity, to impeach them, is the same, parol evidence being admissible in both--the effect and final result is the same. In chancery the patent is vacated, and the judgment and decree are declared to be nullities, and the party is enjoined from proceeding further on 

 [*497]  them. In a court of law, the judgment is that they cannot and do not transfer or pass any right or interest. In a court of law, the mode of examination is preferable, because the evidence is better sifted, and more [**19]  critically inquired into, and the credit of the witnesses is better tested. Where frauds are clearly established, the courts of law and a court of chancery have concurrent jurisdiction. In some cases it may be necessary to resort to a court of chancery to compel a discovery of facts and circumstances, which are confined to the knowledge of the parties, in order to prove a fraud; which, it is believed, is the only reason why the applications are more frequent, in cases of fraud, to the court of chancery, than to a court of law. If the evidence was improperly admitted because the operation of a grant cannot be questioned in a court of law for fraud in obtaining it, then the verdict of the jury, finding for the defendant, cannot conclude the plaintiff as to the fact whether the certificate was forged or not. But what principle is it which allows a court of law to be competent to inquire into fraud and collusion in obtaining a judgment or decree, and to declare such judgment or decree inoperative to pass any right or interest, which does not extend to a patent? A judgment or decree must stand on as high authority as a patent. In this case the fact of forgery came before the court and jury [**20]  collaterally, and was not directly in question, the issue between the parties being, who had the right of possession to the land in controversy? and therefore the verdict cannot be received as evidence to prove that the certificate was not forged. It may very well be questioned, as the court were not called on, and did not direct the jury if they found the certificate forged, that nothing passed by the patent; and as the jury might suppose, notwithstanding the certificate was forged, that the prior grant ought to prevail, and could not be affected by it, whether the verdict could conclude the plaintiff if the fact of forgery had been directly in issue.
Although on a bill in chancery charging forgery, the defendant cannot be compelled to answer any fact which will criminate himself, yet the court of chancery has jurisdiction over the case; and on proof of the forgery, by which a fraud has been committed, will grant relief by vacating the grant or deed from whence the injury has arisen, or 

 [*498]  will make such decree as the circumstances of the case render necessary.
The court are of opinion, that the forgery of the certificate of Singery's Trouting Streams, and the fraud [**21]  consequent thereon, have been fully established, and affirm the decree of the court of chancery, with costs to the appellee.
GANTT, J. dissented.
DECREE AFFIRMED.  

9 of 28 DOCUMENTS 

HALL VS. GITTINGS Junr's. Lessee. GITTINGS Junr's. Lessee vs. HALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 112; 1807 Md. LEXIS 13 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from the General Court. This was an action of ejectment for a tract of land called Friendship Compleated, lying in Baltimore county. The defendant (Hall) in the court below, took defence on warrant for a tract of land called Tolly's Purchase, granted under an escheat warrant on Cullen's Lot, and part of Cullen's Addition.

1. At the trial at May term 1802, the defendant offered to prove, that George Holland, the patentee of Holland's Park, died before the year 1760, intestate, and without issue, not having conveyed that land, and leaving no heirs capable of inheriting. That in the year 1774, Walter Tolly entered on and became possessed pro ut lex postulat, of the lands located on the plots in this cause, surrounding red M, N and P, claiming the same as his own, and in virtue of his patent for Tolly's Purchase. That the land included in the black lines on the plots shaded yellow, surrounding red M, and the land in the blue shaded lines surrounding red N, and the land in the yellow lines surrounding red P, were in the year 1774 actually enclosed by Tolly, and that he died in the year 1783, in the actual seizin and possession, (so far as he could be seized and possessed [**2]  thereof against the state,) of the land so enclosed, and devised the same to the wife of the defendant. That the defendant, in virtue of his marriage and the devise, entered upon the said lands in the year 1783, (so far as he could be seized and possessed against the state,) claiming the same, and hath ever since remained in such seizin and possession thereof. That the whole of the three pieces of land has been under actual enclosure of fences from the year 1774 to this period, by Tolly in his life-time, claiming the same, and from the time of his death by the defendant, claiming the same. That Tolly in his life-time, and the defendant since his title accrued under the devise, and his entry, have paid quit rents to the Proprietary in his time, and taxes and assessment to the state, since the year 1780, for Tolly's Purchase; and that no actual entry ever was made by the state, or any person on behalf of the state, on any of the lands herein before described, except the surveyor, who on the 30th day of March 1796, entered on the same to make the survey, on which the lessor of the plaintiff afterwards obtained a patent including the said lands, for the recovery of which this suit is instituted.  [**3]  The plaintiff then prayed the opinion of the court, and their direction to the jury, that they being satisfied as to the true location of Holland's Park, the same being land escheated to the Proprietor, and by the act of confiscation vested in the state, no adversary possession on the part of the defendant can avail against the state, so long as the title thereof remained in the state.

CHASE, Ch. J. a. The court are of opinion, that there is no adversary possession on the part of the defendant which can defeat the right derived from the state. Under the act of October 1780, ch. 49, the state became actually possessed of the land; and that act dispenses with the requisites necessary in the case of the crown to avoid a possession adversary to the right of the crown, to wit, an office found, or an actual entry. By an office found in England, the crown becomes actually seized and possessed of any escheat land in question. The state then had the right to pass the act of assembly; and by that act, the state by its commissioners, was in as full possession of the land as if there had been an office found, or actual entry by the commissioners, and ouster of the defendant, or those under [**4]  whom he claims.

a Duvall and Done, J. concurred.

This case has been argued upon the principle of the land's being held under the idea of its being part of Tolly's Purchase. The court consider it as distinct from Tolly's Purchase, and as having no connection with the question. It has also been contended by the defendant's counsel on the principles decided in former cases. The court do not consider this case as affected by former decisions. In Kelly's Lessee vs. Greenfield & Sothoron, and Russell's Lessee vs. Baker, the lands had been granted by common warrants, and afterwards taken by escheat warrants, and there the grantees under the common warrants, had had the adversary possession for the full length of time, to wit, 20 years. But in this case the state, by the act of 1780, having vested complete possession in its commissioners, the adversary possession, (as stated in the case, commencing at farthest in 1774,) could only have continued till the passing of that act. If there had been a subsequent entry and possession of the land by the defendant, or those under whom he claims, there must then have been a continuance for 20 years of that adversary possession to defeat [**5]  the right of the state's grantee.

The opinion of the court, as contained in the bill of exceptions which was taken at the trial, is as follows, viz. "The court are of opinion, and so direct the jury, that in this case the act of assembly which passed in October 1780, ch. 49, vested the actual seizin and possession of the said land in the commissioners appointed to preserve confiscated British property, as fully and amply as if the said commissioners, as the agent or trustees of the state, had made a formal entry on the same. That the commissioners were in possession of the said land in virtue and by operation of that act, from the time of passing the same; and although the defendant, or those under whom he claims, continued in the actual possession of the said land, it was the possession of the commissioners on behalf of the state; for where two persons are in possession, the one by right, and the other by wrong, it is the possession of him who is in by right.

"The court are also of opinion, that the possession of the defendant, or those under whom he claims, was divested by the said act of assembly, and that the act of limitations ceased to have operation, or to run from [**6]  that time, and that he has no right to the said land in virtue of the said possession. That the said possession not being derived from the Proprietary, but taken and held in opposition to his title, the defendant cannot have any equitable interest in the land, or claim to the same upon the state, as standing in the place of the Proprietary." The defendant excepted.

2. The plaintiff, to make title to the land called Friendship Compleated, in the declaration of ejectment mentioned, read in evidence the grant thereof for 39 and one quarter acres and 20 perches, surveyed on the 30th of March 1796, for, and granted on the 14th of March 1798 to, the lessor of the plaintiff, in virtue of a special warrant of escheat issued on the 29th of April 1795, to resurvey and affect a tract of land called Holland's Park, granted to George Holland. He also read in evidence the grant of Holland's Park, surveyed the 14th of October 1683, and granted the 10th of August 1684, to George Holland, for 150 acres. The defendant then, in order to make title to that part of Tolly's Purchase surveyed the 15th of December 1757, for and granted to, Walter Tolly, on the 14th of August 1759, read in evidence the [**7]  grant thereof, being in virtue of a special warrant of escheat upon Cullen's Lot, granted to Thomas Greenwin for 300 acres, and Cullen's Addition, granted also to Greenwin, for 500 acres. He then read in evidence the will of Tolly, the patentee, dated the 26th of July 1781, by which he devised Tolly's Purchase to the wife of the defendant, who is still living; and he proved that Tolly died, possessed thereof, in the year 1783. He then offered evidence to prove, that from the time of the grant for Tolly's Purchase, the quit rents on that tract had been paid by Tolly, to the agents of the Lord Proprietary, until the year 1776, and that the other taxes and county assessments imposed on lands had also been paid by Tolly, and those claiming under him, for Tolly's Purchase. He then offered evidence to prove, that from the time of obtaining the grant for Tolly's Purchase to the present time, Tolly, and those claiming under him, have been in the possession and occupation of that land, claiming title to the same. He then offered evidence to prove, that his location of Tolly's Purchase, and for which he has taken defence, and which is described by the plots and the table of courses No. 15, is [**8]  the true original location of that land, and that part of the plaintiff's pretensions for Friendship Compleated, interferes with, and runs foul of Tolly's Purchase. He then prayed the opinion of the court, and their direction to the jury, that admitting Holland's Park, mentioned in the grant of Friendship Compleated, was liable to escheat at the time of the survey and grant to Tolly's Purchase, and part thereof was included in the grant of Tolly's Purchase, then the subsequent grant of the escheat on Holland's Park, called Friendship Compleated, to the lessor of the plaintiff, could not operate to give him title for any part of the land which was included in the escheat grant to Tolly.

CHASE, Ch. J. The court are of opinion, and so direct the jury, that if Holland's Park was escheatable at the time of the grant of Tolly's Purchase, and possession and payment of quit rents followed for more than twenty years before the act of confiscation, then the grant for Tolly's Purchase operates to convey a good title to all the land contained within the lines of the grant. But if Holland's Park was not escheatable at the time the grant of Tolly's Purchase was obtained, that in such case no [**9]  part of Holland's Park, which is included within the lines of Tolly's Purchase, passed to Walter Tolly under the grant, and the state was not estopped from granting Friendship Compleated to the lessor of the plaintiff.

The chief judge observed, that the court considered this decision conformable to that in Kelly's Lessee vs. Greenfield & Sothoron. He cited Blackston vs. Johnson, in the general court for the Eastern shore, where he said it was decided, that an escheat grant related to the original grant. The defendant excepted.

3. The defendant then, to support his location of Tolly's Purchase on the plots, offered in evidence the certificate and grant of that land, surveyed (in virtue of a special warrant of escheat,) on the 15th of December 1757, for, and granted on the 14th of August 1759, to Walter Tolly. In which it was stated, that there "was laid out for Walter Tolly the tracts of land called Cullen's Lot, and such part of the tract of land called Cullen's Addition, as is escheat, according to their ancient metes and bounds, as showed. Beginning for Cullen's Lot at a bounded red oak, being the second boundary of the land called Trueman's Acquaintance, and running thence [**10]  N W 96 perches, N E 500 perches, S E 96 perches, and then with a straight line to the beginning, containing and laid out for 300 acres more or less. Beginning for the part of Cullen's Addition, supposed to be escheated, at the end of the N E 500 perches line of the land called Cullen's Lot, and running thence N E 142 perches, S E 284 perches, S W 142 perches, and then with a straight line to the place of beginning, containing and laid out for 252 acres more or less." Which being reduced in to one entire tract--"Beginning at a bounded red oak, it being the original beginning tree of Cullen's Lot, and the second boundary of Trueman's Acquaintance, and running thence N W 96 perches, N E 642 perches, S E 284 perches, S W 142 perches, N W 188 perches, and then with a straight line to the beginning, containing and laid out for 552 acres, more or less." He also offered in evidence the certificate of survey of a tract of land called Double Purchase, surveyed on the 29th of January 1785, for, and granted the 11th of October 1796 to, Aquila Hall, the defendant. In which it is stated, that there "was laid out for the said Hall, in virtue of a special warrant dated 22d of December 1784, by directions [**11]  of the commissioners for confiscated British property, 166 acres of land, lying within the reserve of Gunpowder Manor, a tract or parcel of land adjoining Gunpowder Manor, and adjoining a tract or parcel of land called Tolly's Purchase, beginning at a bounded stone set up by the said Hall, at the end of 784 perches, on the first line of Gunpowder Manor, and running thence with and bounding on the manor reverse of the same S 39[degree] 52 W 784 perches, to a stone marked W T, being the beginning of the manor, and a boundary of Tolly's Purchase, and the second boundary of Cullen's Lot, thence bounding on Tolly's Purchase N E 784 perches, and thence by a straight line to the beginning, containing and laid out for 166 acres more or less." He also offered in evidence that Tolly, the patentee of Tolly's Purchase, died in March 1783, seized of the lands contained within the metes and bounds of that tract, according to the said location; and by his will devised that tract to the wife of the defendant, who hath since the death of Tolly, continued in the actual seizin and possession thereof, until this time. He also offered in evidence that he purchased of this state some time in the year [**12]  1785, the tract of land called Double Purchase, as located on the plots, as part of Gunpowder Manor, which manor is also located on the plots, and obtained a grant therefor from the state on the 11th of October 1796. He also offered in evidence that Tolly, during his life, and before and until the American revolution, paid the quit rents due upon Tolly's Purchase to the agents of the Proprietary down to the year 1776; and after that time he, the defendant, paid the taxes due thereon under the laws of this state. The plaintiff then offered in evidence a certificate of survey of Cullen's Lot, (surveyed for James Cullen on the 17th of June 1683, under a warrant dated the 20th of April 1683,) "lying in Baltimore county, at the head of Gunpowder river, on the N side of the S branch of the said river, beginning at a bounded red oak, the bounded tree of the land called Trueman's Acquaintance, and running from the said oak N W for breadth 96 perches, to another bounded red oak, then with a line drawn N E for the length of 500 perches to a bounded poplar, then running S E 96 perches to a bounded red oak, from thence with a straight line drawn S W to the first bounded tree, containing 300 acres.  [**13]  " Also the certificate of survey of Cullen's Addition, (surveyed for James Cullen the 25th of September 1683, under a warrant dated 30th of July, 1683,) "lying in Baltimore county, upon the head of a river called Gunpowder river, beginning at the end of the N E line of the land called Cullen's Lot, and running from the end of the said N E line N E 284 perches, from thence with a line drawn S E 284 perches to a marked poplar, then running S W 284 perches, from thence running by a direct line to the first bounded tree, containing 500 acres more or less." He also offered in evidence that Cullen's Lot, Cullen's Addition and Tolly's Purchase, are truly located on the plots by him the plaintiff. The defendant then prayed the opinion of the court, and their direction to the jury, that no boundary being called for at the end of the first line of Tolly's Purchase, and the second line not calling to bind on or run with any other land, the said first line must stop at the number of perches called for, and cannot be extended further.

CHASE, Ch. J. The court are of opinion, that the true and legal exposition of the grant of Tolly's Purchase was to convey all the land comprehended within the [**14]  true location of Cullen's Lot, and that part of Cullen's Addition which was escheated. That where there are two descriptions of the land intended to be conveyed, the one by name, and the other by metes and bounds, or courses and distances, the grant will operate to pass the land according to that description which is most beneficial to the grantee.

The chief judge observed, that if A. is possessed of two tracts of land, Black Acre and White Acre, and grants White Acre, the youngest tract, by metes and bounds, which metes and bounds interfere with the lines of Black Acre, then the grantee takes by metes and bounds; for the deed must be taken most favorable for the grantee. This question, he said, was decided in the late provincial court, and affirmed in the present court of appeals b. The defendant excepted.

b Hawkins vs. Hanson, 1 Harr. & M'Hen. 523.

4. The plaintiff, to establish the location of Thompson's Choice, as located by him on the plots, gave in evidence a plot of the lands called Thompson's Choice, Cullen's Lot, Cullen's Addition, Hill's Forest, Tasker's Camp, Holland's Park, (the last tract granted to the defendant,) and Jamaica, which plot was made by [**15]  a certain Darby Ensor, a witness sworn in this cause; and the plaintiff offered to prove by Ensor, that the said plot was made by him from runnings directed by the defendant, and made by him, Ensor, as deputy surveyor of Baltimore county, in virtue of a warrant of resurvey issued from this court in an action of ejectment brought therein by the lessee of the present defendant against a certain, Thomas Gittings. And the plaintiff offered also to prove, by the testimony of James Gittings, of Thomas, that the place where Ensor run from as the beginning of Thompson's Choice, in the said runnings from which the said plot so produced was made, was the same place as located on the plots in this cause at black H. But the defendant objected to James Gittings, of Thomas, being sworn in chief, and that he was not a competent witness to prove that the place where the defendant had directed Ensor to run from, in the runnings from which the said plot was made, was the same place which is located by the plaintiff on the plots at H; and offered to prove to the court, that James Gittings, of Thomas, was the owner of a part of Thompson's Choice; and produced the certificates of the surveys of Hill's [**16]  Forest, and Holland's Park, granted to George Holland. The former of those tracts was surveyed on the 4th of October 1684, and the latter on the 14th of October 1683, and they are both stated as lying in Baltimore county, in the woods, above the head of a river called Gunpowder river. The former tract began at a bounded red oak standing at the end of the N line of Thompson's Choice, and the latter began at a bounded tree standing at the end of Hill's Forest.

CHASE, Ch. J. The court are of opinion, that James Gittings, of Thomas, be admitted as a witness to prove the fact stated by the plaintiff. The Chief Judge cited Hawkins vs. Beanes & Middleton, 2 Harr. & M'Hen. 119. Chapline vs. Keedy, 3 Harr. & M'Hen. 578, and Gittings vs. Hall, 1 Harr. & Johns. 23, to show that it had been decided, that if the testimony of a witness, who is interested, is intended to be objected to, the land, in which the witness is alleged to be interested, must be located on the plots. The defendant excepted.

5. The defendant produced a witness, who deposed, that 18 years ago he lived with Charles Ridgely, who had then purchased part of Trueman's Acquaintance, a tract of land located on the plots.  [**17]  That Ridgely told him that an agreement had been before entered into between Thomas Gittings, the owner of Thompson's Choice, and James Greenfield, the owner of part of Trueman's Acquaintance, (which part he had sold to Ridgely;) that the place designated on the plots as the end of the first line of Thompson's Choice, according to one of its locations as made on the plots, should be fixed as one of the boundaries of that part of Trueman's Acquaintance, which Greenfield had held and sold to Ridgely. The plaintiff then prayed the court for their opinion and direction to the jury, that the declarations of Ridgely, (who is dead,) so given in by the witness above stated, was incompetent and inadmissible, he, Ridgely, being interested in establishing the truth of the facts by him related to the witness.

CHASE, Ch. J. The court are of opinion, that the declarations of Ridgely are competent and admissible evidence to the jury, it not appearing to the court, by the plots, that he was interested in establishing the truth of the facts related by him to the witness. The plaintiff excepted.

6. The defendant, in order to show that the land claimed by the plaintiff was not escheatable for [**18]  the want of the heirs of George Holland, the patentee, offered to read in evidence an exemplification of the will of Holland, taken from the records of the late prerogative office, dated the 19th of February 1683, whereby, amongst other things, he devised as follows, viz. "And all the rest of my lands, goods and chattels, I give and bequeath unto John Larkin, of Ann-Arundel county aforesaid, innholder, and to his heirs and assigns for ever." The will was signed, sealed, and attested thus:

"George Holland, (L S.)

"Signed, sealed and delivered, in the presence of

Wm. Lathorp,

Ann X Tovey,

Diana D. Parkes."

And thus endorsed: "June the 22d, 1685, came before me William Lathrup and Anne Tovey, alias Joce, the said Lathrupe took his corporal oath, that the within was signed, sealed and delivered, as the act and deed of the said George Holland. Ann Tovey, alias Joce, took her corporal oath that she did believe that the within signed was her mark--the said Diana, mortu est.

"Jurat coram me     James Ringold."

The plaintiff objected to the same being offered in evidence, because it did not appear that the will, if executed at all, was attested by [**19]  the witnesses in the presence of the testator; and because it was not the original will, and did not appear to have been proved, so as to authorize the same to be recorded.

CHASE, Ch. J. The court are of opinion, that the above circumstances are matters of fact to be determined by the jury; and that they may and ought, from the length of time which has elapsed since the making of the will, to presume that they were complied with. The plaintiff excepted.

7. The plaintiff then offered in evidence an escheat warrant obtained by Walter Tolly on the 6th of September 1782, on Holland's Park; that Tolly died a few months after the date of that warrant, and that the defendant, who intermarried with the daughter of Tolly, obtained an escheat warrant on the 22d of August 1783, on the same land, for want of heirs of George Holland, the grantee; that he returned a certificate of survey on the 1st of July 1784, and obtained a patent therefor, by the name also of Holland's Park, on the 13th of May 1785; and that the land, so granted to the defendant, is truly located by the plaintiff on the plots. The plaintiff then offered in evidence, that John Larkin, the devisee in the will of George [**20]  Holland, died intestate in the month of February 1702, leaving Thomas Larkin, the other devisee in the said will, his heir at law, who married about the 2d of September 1697; and gave in evidence the will of T. Larkin, dated the 10th of April 1731, in which Holland's Park is not mentioned; but there is a recital of a mortgage of sundry tracts of land executed by the testator to the heirs of Amos Garrett, more than sufficient to pay the debt for which they were mortgaged, and he desired that they might be sold, &c. He devised other lands to his daughter Elizabeth. That T. Larkin died in May 1731, leaving his daughter Elizabeth, the devisee in the will mentioned, his heir at law. He also offered in evidence the will of E. Larkin, dated the 25th of January 1735, in which no mention is made of Holland's Park, nor is there any residuary clause; and that she died unmarried, on the 4th of February 1735. He also offered in evidence the deed of mortgage referred to in the will of T. Larkin, in which mortgage Holland's Park is not mentioned. He also offered evidence that Zachariah Maccubbin intermarried with Susanna, his wife, on the 20th of July 1704, and died about the month of December 1756,  [**21]  leaving Nicholas Maccubbin his son and heir, and that N. Maccubbin died about the month of March 1787, aged about 85 years, leaving Nicholas Carrou c, of the city of Annapolis, his heir. He also gave in evidence, that N. Maccubbin was a sensible, intelligent man, possessed of a large fortune, and very careful and attentive to his interest. He further offered in evidence, that from the time of the grant to Holland, until the present time, no person has been known to have ever actually possessed or claimed Holland's Park, claiming it as such, except the lessor of the plaintiff, and the defendant, under their escheat grants aforesaid. And further, that no person of the name of Larkin or Maccubbin, or of any other name, has been known to set up a title to, or to claim the said land, except under the escheat grants aforesaid. Also, that Tolly lived adjoining the said land during the whole of his life, and was an old man at the time of his death; and also that the defendant is an attorney of great legal information, and has been in the practice of the law for near or quite thirty years. The defendant then read in evidence the certificate and grant for Holland's Park, granted to George Holland;  [**22]  and gave in evidence that Holland afterwards died, having devised the land in fee to John Larkin; that J. Larkin died, and left issue two children, Thomas, his heir at law, and Hester; that T. Larkin afterwards died, leaving issue an only child, a daughter, named Elizabeth, which Elizabeth died without issue. That Hester, the sister of T. Larkin, and aunt to Elizabeth, intermarried with a certain Nicholas Nicholson, by whom she had issue Susanna, her only child and heir at law. That Susanna, after the death of Hester, intermarried with Zachariah Maccubbin, by whom she had issue N. Maccubbin, her eldest son and heir at law; that N. Maccubbin, after his mother's death, died, leaving issue a son named N. Carroll, his heir at law, now in full life, living in the city of Annapolis. He also offered evidence to prove that Holland, the patentee, J. Larkin, his devisee, and the before mentioned T. Larkin, E. Larkin, H. Nicholson, S. Maccubbin, N. Maccubbin, and N. Carroll, his son, have severally, at all times during their respective lives, lived and resided in Anne-Arundel county in this state; that the land called Holland's Park was originally located in Baltimore county, and that no person [**23]  or persons ever built on, improved or cultivated the said land, or any part thereof, before the defendant in this cause in 1775, and the lessor of the plaintiff in 1795, except part thereof which had been occupied by a certain James Gittings, and that the residue of the land lay waste and unimproved. He further offered in evidence the original debt books of Baltimore county, and entries therein of the agents of the Proprietary, on one of which, viz. in 1769, is an entry in these words: "Gideon Linthecum Dr. To Holland's Park, 150 acres, 6s." and opposite thereto the following entry, viz. "Can't find any such person or land." And an entry on the rent roll in the land office, made about the year 1772, in these words, viz. "150. Holland's Park, surv'd. 14th October, 1683, for George Holland, above the head of Gunpowder river. Poss. 150. 6s. Gideon Linthecomb. The bounds of this land being lost, the land cannot be found; nor is there any such person in being as Gideon Linthecomb." He also offered evidence to prove, that the tract of land in the said entries mentioned, was the same land which was surveyed for Holland, and patented to him by the grant herein before referred to; and that [**24]  it is the land located by the defendant and the plaintiff on the plots, and that it is truly located by the defendant. He then prayed the direction of the court to the jury, that if the facts in the above statement are true, that then the legal title to Holland's Park is in N. Carroll, the heir at law of N. Maccubbin; that the land was not liable to escheat, and that the lessor of the plaintiff is not entitled to recover the said land, in the declaration mentioned, under his escheat grant in 1798.

c Name changed from Maccubbin by act of assembly.

CHASE, Ch. J. The court are of opinion, and so direct the jury, that if they find the facts stated by the defendant to be true, that the legal title to Holland's Park is in Nicholas Carroll, the heir at law of Nicholas Maccubbin, and that the said land not being escheatable, the plaintiff is not entitled to recover the said land, in his declaration of ejectment mentioned, under the escheat grant to the lessor of the plaintiff in 1798.

In ejectment the plaintiff must recover on the strength of his own title. The defendant may prevent his recovery by showing a title in himself, or by showing a clear subsisting title in a stranger.  [**25]  

Possession is presumptive evidence of right, and the defendant cannot be deprived of his possession by any person but the rightful owner of the land, i. e. he who hath the jus possessionis.

A clear subsisting title outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties.

Land is not escheatable as long as there are heirs of the original tenant or grantee.

Escheat is that possibility of interest which reverts to, or devolves on the lord, upon the failure of heirs of the original grantee; and he cannot grant the land again until that event happens; and if he does, his grant will pass nothing, and cannot impair any right or interest acquired under his original grant.

The escheat grant is prima facie evidence of title; but being only a presumption of right in the Proprietary, it can only exist until the contrary is proved; and if the jury find the facts stated by the defendant, there is evidence of a clear subsisting title in the heirs of George Holland, under the grant to him. Holland's Park having been legally granted to George Holland, nothing can defeat his title, and the title of his [**26]  heirs, to the said land under his grant, but twenty years adversary possession.

The court are of opinion, that if the jury find the facts stated, a title has been legally deduced from George Holland, the patentee of Holland's Park, to Nicholas Carroll, and that the right to Holland's Park now subsists in him. The plaintiff excepted.

8. The plaintiff also offered in evidence, an entry on the old rent roll in the land office, made about the year 1710, in these words, viz. "150 acres of Holland's Park, surv'd 14th October 1683, for George Holland, above the head of Gunpowder river, at a bounded tree at the end of a parcel of land called Hill's Forest, and now in possession of John Ford of A. A. county." Also an extract from the land office of the following tracts of land having been patented to George Holland, viz. Collet's Neglect, Holland, Denton, Holland's Delight, Holland and Holland's Advent. Also a record of a suit brought by N. Maccubbin's Lessee vs. Medford, about the year 1766, for establishing the bounds of a tract of land lying in Kent county, devised to Maccubbin by Col. Richard Bennett, and which suit was tried at the assizes held in Queen-Anne's county. The defendant [**27]  then prayed the court to direct the jury, that if they believe the facts to be true as stated by him, that then the presumption of law is, that George Holland was seized of Holland's Park at the time of his will and death, and the same land passed to Larkin, his devisee, and no presumption from the facts stated on the part of the plaintiff can arise, that Holland was not seized of the said land at the time of his will and death.

THE COURT directed the jury accordingly. The plaintiff excepted.

Verdict, part for the plaintiff, and part for the defendant, and judgment thereon for the plaintiff. Both parties appealed to the late court of appeals, and at November term 1805, the points arising on the bills of exceptions, (the four first taken on the part of the defendant, and the other four on the part of the plaintiff,) were argued in that court, on the cross appeals, by.  

DISPOSITION:
Affirmed.  

HEADNOTES:

No adversary possession of land can avail against the state.

Lands which escheated to the Lord Proprietary, were by the acts of October 1780, ch. 45, and ch. 49, confiscated to and vested in the state, without office found, or an actual entry.

An adversary possession commencing against the Proprietary, ceased to operate against the state after the act of confiscation.

The act of October 1780, ch. 49, vested the seizin and possession of all lands liable to confiscation in the commissioners, on behalf of the state, and divested the possession of all other persons.

If two persons are in possession of land, the one by right, and the other by wrong, it is the possession of him who is in by right.

If land liable to escheat is included in a survey and grant under an escheat warrant on another tract of land, such grant will operate to pass a good title to the land so included, if there has been possession and payment of quit rents for more than 20 years before the act of confiscation.

Land not liable to escheat at the time it was included in a grant on a survey made in virtue of an escheat warrant on another tract, but which afterwards became escheat, will not pass under such grant, and the state is not estopped from granting it to any other person.

An escheat grant relates to, and operates to pass the whole of the original tract escheated.

If there are two descriptions of the land conveyed, the one by name, and the other by metes and bounds, &c. the grant will operate to pass the land according to that description which is most beneficial to the grantee.

If the testimony of a witness is intended to be objected to because of his holding adjoining lands, &c. his interest must be located on the plots.

The declarations of a former holder of the adjoining lands, as to the bounds of the land in dispute, admitted in evidence, it not appearing by the plots that he was interested in establishing the truth of the facts related by him.

Whether or not a will was legally executed and proved, are matters of fact for the jury; and where the will was made in 1683, they may and ought, from the length of time elapsed, to presume that it had been duly executed and proved.

The jury were directed on certain evidence of title and descent, that if true, then land which had been granted as escheat land was not escheatable, although for upwards of 100 years no person ever claimed the land under the original grantee.

In ejectment the plaintiff must recover on the strength of his own title. The defendant may prevent his recovery, by showing a title in himself, or a clear subsisting title in a stranger.

Possession is presumptive evidence of right, and the defendant cannot be deprived of his possession by any person but the rightful owner of the land, i. e. he who hath the jus possessionis.

A clear subsisting title, outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties.

Land is not escheatable as long as there are heirs of the original tenant or grantee.

Escheat is that possibility of interest which reverts to or devolves on the Lord upon the failure of heirs of the original grantee, and he cannot grant the land again until that event happens; and if he does his grant will pass nothing.

An escheat grant is prima facie evidence of title; but being only a presumption of right in the Proprietary, it only exists until the contrary is proved.

Nothing but 20 years adversary possession can defeat a title acquired under a legal grant.

The jury were directed, that if they believed certain facts, then the presumption of law was, that G. H, for whom the land in dispute was surveyed on the 14th of October 1683, and granted to him the 10th of August 1684, was seized thereof at the time of his will dated the 19th of February 1683, and his death in 1685, and that the land passed to his devisee under the residuary clause in his will.

Where land liable to escheat, was included in a survey and grant under an escheat warrant on another tract, such grant operated to pass a good title to the land so included, if there had been possession and payment of quit rents for more than 20 years before the act of confiscation. But if the land was not escheatable at the time the escheat grant was obtained, the state was not estopped from granting it to any other person. An escheat grant relates to the original grant.

An escheat grant will pass all the land comprehended within the true location of the tract of land escheated.

If there are two descriptions of the land conveyed one by name, and the other by metes and bounds, &c. the grant will operate to pass the land according to that description which is most beneficial to the grantee.

If the testimony of a witness is intended to be objected to because of his holding adjoining lands, his interest must be located on the plots.

The declarations of a former holder of the adjoining lands, as to the bounds of the land in dispute, admitted in evidence, it not appearing by the plots that he was interested in establishing the facts related by him.

Whether or not a will made in 1683 was legally executed & proved, are matters of fact for the jury; and they ought, from the length of time which has elapsed, to presume that it had been duly executed and proved.

On certain facts of title and descent, the jury were directed, that if they found them to be true, then land, which had been granted as escheat land, was not escheatable; although the land had not been claimed under the original grantee for upwards of 100 years.

In ejectment the plaintiff must recover on the strength of his own title; which recovery the defendant may prevent, by showing a title in himself, or a clear subsisting title in a stranger.

Possession is presumptive evidence of right, and the defendant cannot be deprived of his possession by any person but the rightful owner of the land--he who hath the jus possessionis.

A clear subsisting title, outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties.

Land is not escheatable as long as there are heirs of the original grantee, and until the failure of his heirs, the land cannot be again granted; and if it is, it passes nothing.

An escheat grant is prima facie evidence of title.

Nothing but 20 years adversary possession can defeat a title acquired under a legal grant.

The jury were directed, that if they believed certain facts, then the presumption of law was, that G. H, for whom the land in, dispute was surveyed on the 14th of October 1683, and granted to him on the 10th of August 1684, was seized thereof at the time of his will dated the 19th of February 1683, and his death in 1685.  

COUNSEL:
Martin, (Attorney-General,) and Mason, for the plaintiff, referred to the acts of assembly of October 1780, ch. 45, and ch. 49.

Key, Hollingsworth and Harper, for the defendants, cited Kelly's Lessee vs. Greenfield & Sothoron, 2 Harr. & M'Hen. 121. Russell's Lessee vs. Baker, 1 Harr. & Johns.  [**28]  71. Ringgold's Lessee vs. Malott, 1 Harr. & Johns. 299. 2 Blk. Com. 75, 257. Murray & Sansom vs. Ridley's Adm'x. 3 Harr. & M'Hen. 171. The acts of assembly, October 1780, ch. 51, s. 5; and Nov. 1781, ch. 20, s. 8, 17. Burgess vs. Wheat, 1 Wm. Blk. Rep. 174.

Harper and Johnson, for the defendant, cited 4 Bac. Ab. tit. Estoppel, 107. Co. Litt. 47, 227, a. 352, 58. 4 Co. 53.

Martin, (Attorney-General,) and Mason, for the plaintiff, cited Coke Litt. 3. 4 Bac. Abr. tit. Estoppel, 107. The Proprietary vs. Jennings et al. 1 Harr. & M'Hen. 92. The State vs. Reed, 4 Harr. & M'Hen. 6.

Pinkney, Key, Shaaff and Harper, for Hall, and by

Martin, (Attorney-General,) for Gittings's Lessee.

The then Court of Appeals not having given judgment when the legislature passed the act of 1805, ch. 16, abolishing that court, these appeals were, by the act of the same session, ch. 65, transferred to the present Court of Appeals, and were argued at June term 1806, before TILGHMAN, BUCHANAN, NICHOLSON and GANTT, J. by

Harper and Johnson, for Hall, and by

Martin, for Gittings's Lessee.

On the part of Hall, it was contended by his counsel in the former and present arguments [**29]  on the first bill of exceptions, 1. That the Lord Proprietary was entitled to the whole of the land in controversy, either by escheat or as vacant land, in case it was not included in Tolly's Purchase. 2. That the Proprietary was liable to the operation of the act of limitations, and of adversary possession. 3. That he was therefore out of possession, and had merely a right of entry when the act of confiscation divested him of his rights, and transferred them to the state. 4. That the state acquired merely a right of entry, and had not a complete title or right of possession without office found or actual entry. 5. That the want of office found, or actual entry, was not supplied by the act of confiscation, and consequently that the state's patentee had no right of entry, and could not maintain the possessory action of ejectment. 6. That as far as the Proprietary's right depended on the escheat, it was a right in pais, liable in its own nature to be defeated by adversary possession, or other matter in pais, and requiring an office found, or actual entry, to perfect it; that it was transferred to the state with all its original and inherent properties; and consequently was liable, even [**30]  in the hands of the state, to be defeated by the adversary possession of Tolly, and those claiming under him. They referred to Russell's Lessee vs. Baker, 1 Harr. & Johns. 71. Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Bro. Ab. tit. Prerogative, s. 91. 2 Hawk. 448. Bro. 34. 4 Coke, 48, 58.

On the second bill of exceptions it was contended, 1. That if the escheat of Holland's Park had fallen at the time when Tolly's Purchase was granted, so much of the first tract as was included within the true location of the latter would pass by the grant of the latter. 2. And that if the escheat had not fallen, but fell afterwards, still the latter grant would operate as an estoppel on the Lord Proprietary, (who it was contended was bound by estoppels like other persons,) and would pass the land to the grantee of the latter tract by way of estoppel, and would defeat the title of the lessor of the plaintiff under his grant of Friendship Compleated. They cited Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Russell's Lessee vs. Baker, 1 Harr. & Johns. 71. 3 Blk. Com. 308. 10 Vin. Ab. 454, 455, pl. 9, 10; 482, pl. 1; 484, pl. 15. Co. Litt. 45, a. 47, b. 352, a. Litt. sect. 58. 6 Mod. 258. Hayne [**31]  vs. Maltby, 3 T. R. 441. 4th Supp. to Vin. Ab. 127. Fairtitle vs. Gilbert, 2 T. R. 171. 4 Com. Dig. 78, 81, 84. The Attorney-General vs. Snowden, 1 Harr. & Johns. 332. Moale vs. Howard, in the general court, (see post.) Owings vs. Norwood's Lessee, (ante 96.) Hawkins vs. Hanson, 1 Harr. & M'Hen. 523, (argument of counsel.)

On the third bill of exceptions it was contended, that the location of an escheat grant was to be made by its own expressions, and not by those in the original grant. They cited Dorsey's Lessee vs. Hammond, 1 Harr. & Johns. 193. 2 Shep. Ab. 279. 14 Vin. Ab. 78, pl. 8. 2 Roll. Ab. 50. Bac. Ab. tit. Grants, (H.) 3 Blk. Com. 379. Co. Litt. 42. 2 Blk. Com. 347, 379, 380. Bac. El. ch. 3. Hob. 71.

On the sixth bill of exceptions it was contended, 1. That the circumstances stated did amount to a presumption in law, that the will of Holland was legally executed. They cited Hands vs. James, 2 Com. Rep. 531. Croft vs. Pawlet, 2 Stra. 1109. 5 Bac. Ab. 508. 2. That the statute of frauds did not extend to this country until after the time when Holland's will was proved. They cited Clayland's Lessee vs. Pearce, 1 Harr. & M'Hen. 29. Carroll's Lessee vs. Llewellin, Ibid [**32]  162.

On the seventh and eighth bills of exceptions it was contended, that Holland was seized of Holland's Park at the time of his will and death; that the certificate of survey was four months before the date of the will, (the year then beginning the 25th of March, and October of course being before February;) and that the grant in 1684 would relate to the certificate of survey in 1683. They cited 18 Vin. Ab. 222. Pigott on Com. Recov. 26.

The counsel for Gittings's Lessee, on the first bill of exceptions, referred to the acts of October 1780, ch. 45, and ch. 49. 2 Hawk. 448, ch. 49, s. 1, 2. Bro. Ab. tit. Prerogative, 143, b. pl. 91. Ibid tit. Devant, 109, a. pl. 34. Savil, 7, (18th case). Ibid 70, (145th case). Stanf. Pre. 54, a. 2 Roll. Ab. 184, pl. 1, 2, 3, 4. 4 Coke, 58. Taylor vs. Horde, 1 Burr. 60.

On the second bill of exceptions he cited 10 Vin. Ab. 470, pl. 9; 482, pl. 1. Co. Litt. 47. b. 352. a. Hath's Lessee vs. Polk, 1 Harr. & M'Hen. 363.

On the third bill of exceptions he cited 2 Shep. Ab. 281. 14 Vin. Ab. 80, pl. 21; 83, pl. 41. 2 Bac. Ab. 661, 662. Bac. El. 86. 2 Mod. 3. Bulst. 177. 2 Leon. 235, Trapp's case. Clayton, 14, Bradford's case. 3 Coke,  [**33]  9, Dowties case. Brownl. 42.

On the sixth bill of exceptions he cited Collins vs. Nicols, 1 Harr. & Johns. 399.

On the seventh and eighth bills of exceptions he contended, 1. That the escheat grant to the lessor of the plaintiff gave a presumptive right, and was prima facie evidence that the land was liable to escheat; that it was not shown by the defendant below that there was no such presumptive right, or that the land was not liable to escheat; that presumption was a rule of evidence, and not a fiction of law; that the evidence offered by the defendant ought not to have been admitted to defeat the right of the plaintiff, where for upwards of 100 years no person ever claimed the land under Holland, except the defendant, a wrong doer, who should not have the benefit of presumption in his favour. 2. That the facts stated, although they might be true, did not authorise the court to direct the jury to make the presumption, that Holland was seized of the land at the time of his will and death, no person ever having claimed or held under his will.

Curia adv. vult.  

JUDGES:
TILGHMAN, J. gave no opinion.  

OPINION:

 [*130]  THE COURT OF APPEALS, at the present term, affirmed [**34]  the judgment of the General Court on both appeals, concurring in the opinions pronounced in the several bills of exceptions.
TILGHMAN, J. gave no opinion on the third bill of exceptions.  

10 of 28 DOCUMENTS 

RUTTER VS. BLAKE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 353; 1808 Md. LEXIS 28 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. The appellee brought an action of assumpsit against the appellant, on a promissory note drawn, on the 4th of July 1800, by him and Edward Rutter, deceased, whom he survived, for $ 1012 50, payable sixty days after date to Edward Johnson, or order, and by him endorsed to William MacCreery, or order, and by him endorsed to the appellee. The general issue was pleaded; and at the trial, the plaintiff produced and read the note in evidence. The defendant then offered in evidence an agreement made between him and the plaintiff, viz. That the promissory note, declared on in this case, was given for goods purchased by the defendant, and E. Rutter, (since deceased,) of the plaintiff. That the defendant, in the trial of this cause, may inquire into and offer evidence of the consideration of the note, and avail himself of the want of consideration for the whole, or any part of the note, as fully as the defendant might legally do, if the note had been originally given by T. & E. Rutter to the plaintiff, and the plaintiff had brought his action as payee of the note against the defendant. The defendant further offered evidence to prove, that he and E. Rutter,  [**2]  on the 1st of March 1800, at Baltimore county, purchased three bales of blue Guerrahs, and that the note, with the indorsements, was given by T. & E. Rutter to the plaintiff, to secure the payment of the purchase money of these goods. That E. Rutter, since the execution of the note, died; and that T. & E. Rutter did not, at the time of the sale, or at any time previous to the arrival of the goods in the West Indies, as hereafter stated, examine the goods. That T. & E. Rutter shipped the goods to the Island of Currocoa, in the West Indies, and there sold them on the 2d of April 1800, for and on their account. That the three bales of goods were not blue Guerrahs, but goods of a different and inferior quality. That T. & E. Rutter had sustained damage and loss, by reason of the false representation and warranty made by the plaintiff, in the sale of the goods. The plaintiff then prayed the court to direct the jury, that if they should be of opinion, that the defendant and E. Rutter did receive and make sale of the goods in Carrocoa, on their own account, and for their own use, the defendant is not in law entitled to any deduction for any loss or damage sustained by the defendant and E.  [**3]  Rutter, in consequence of any warranty of the goods by the plaintiff. The county court, (H. Ridgely, Ch. J.) delivered the following opinion: Generally, in the sale of goods, if the seller affirms them to be of a particular quality, and the buyer receives them upon the credit of this affirmation, and they afterwards appear to be different from what they were affirmed to be, the purchaser may return the goods, and recover back the money, in an action for money had and received, or he may even have his action without a return of the goods, if he give notice to the seller where they are deposited. As, where A sells a horse to B, affirming him to be sound, B receives the horse, and sets out on a journey, but finds the horse to be unsound, and leaves him on the road, he may recover back the money he paid for him, in an action for money had and received, if he gives notice to the seller where the horse is, and he is not bound to return the horse. It was the conduct of the seller that was the original cause of the horse being at a distance and out of his possession, and he must put up with the loss and inconvenience. So if a merchant in Baltimore buys goods, the seller warranting them to [**4]  be of a particular description of quality, and the merchant, without examining, sends them to the West Indies, where upon opening he finds them not to be of the quality warranted, he may store them, give notice to the seller, and recover back the money paid for them, in an action for money had and received; or he may bring his action on the special agreement of warranty, and recover damages for the full amount of the injury he has sustained, nor is he obliged to return the goods, or put himself to any further expense or trouble about them. This, I take it, was exactly the defendant's situation when the goods arrived in the West Indies. He had his option to do one of two things; first, to refuse to keep the goods, declining to go on with the purchase; or secondly, to accept the goods in lieu of those sold him, and to confirm the purchase by going on to sell them, and receiving the amount of sales. What does he do? Why he adopts the latter of the two alternatives--He sells the goods, and receives the money--not as agent for the seller, that is not intended, but upon his own account. This mode of proceeding by the defendant, however hard it bears upon him, I am of opinion has deprived [**5]  him of a remedy here upon the warranty. Let us suppose A to sell a horse to B, with warranty that he is sound. B receives the horse, and riding him home discovers him to be unsound, and says nothing of this to A, but sends the horse to vendue, and sells him for half what he gave for him. Here he has elected to abide by his contract, and I take it he can never resort to the original seller to make good the difference of price. I think the cases I have put are similar to the case before the court, and that the warranty, if any made, cannot avail the defendant so as to entitle him to a deduction of the warranty for any damage or loss by him sustained. Suppose the plaintiff had received the goods on sale, with warranty to him, and has paid the amount--if he does not recover of the defendant, neither can he recover of the person who sold them to him; the defendant has put it out of the plaintiff's power; for the defendant, having sold the goods, the plaintiff cannot return them, or give notice to the person who sold them to him where they are. Therefore it may be that the plaintiff paid the price of first quality goods; and if he should not be permitted to recover against the defendant,  [**6]  he will lose the difference of price between goods of the best and goods of inferior quality. Whereas, had the goods not been disposed of by the defendant, the plaintiff could have returned or given notice where the goods were stored, and recovered over from the person who sold to him. It is true, that if at the time of making this note any particular agreement or understanding took place between the plaintiff, or his agent MacCreery, and the defendant, that a deduction should be made on account of any defect in the goods, that the defendant has his remedy in equity by making them parties, or in this court, if he can prove the note was delivered with such intention or understanding of the parties. The defendant excepted, and the verdict and judgment being against him, he brought this appeal.

The case was submitted to the court without argument.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

If the seller of goods affirms them to be of a particular quality, and the buyer receives them upon the credit of such affirmation, and they afterwards appear to be different, the purchaser may return the goods, and recover back the money, in an action for money had and received; or he may have his action without a return of the goods, if he give notice to the seller where they are deposited.

If A sells a horse to B, affirming him to be sound--B receives the horse, and sets out on a journey, but finds the horse to be unsound, and leaves him on the road, he may recover back the money paid, in an action for money had and received, if he gives notice to A where the horse is, and he is not bound to return the horse.

But if B gives no notice to A, but sends the horse to vendue, and sells him for half what he gave, B has elected to abide by his contract, and he cannot resort to A to make good the difference of price.  

COUNSEL:
W. Dorsey, for the Appellant.

Purviance and S. Chase, Jr. for the Appellee.  

OPINION:

 [*356]  JUDGMENT AFFIRMED.  

11 of 28 DOCUMENTS 

GRANT vs. RIDSDALE et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 186; 1807 Md. LEXIS 20 

June Term, 1806, Argued 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. This was a special action of assumpsit upon a special guarantee for goods sold and delivered to Hacket and Grant, brought by the appellees, (the plaintiffs in the court below,) against the appellant. The declaration contained the following counts: 1. That the plaintiffs, on the 1st day of February 1799, at the special instance and request of the defendant, had before that time sold and delivered to John Hacket and Alexander Grant divers goods, wares and merchandise; the defendant, in consideration of the same, afterwards, &c. assumed upon himself, and to the plaintiffs then and there faithfully promised, that he would well and truly pay to them as much money as they reasonably deserved to have for the goods, wares and merchandise, so sold and delivered to J. H. and A. G. And the plaintiffs aver, that they reasonably deserved to have for the goods, wares and merchandise, so sold and delivered to H. and G. the sum of £  2000 current money, whereof the defendant, afterwards, &c. had notice. 2. That the plaintiffs, on the, &c. had, (at the special instance and request of the defendant before that time, &c. made to the plaintiffs by the defendant,) sold and [**2]  delivered to J. H. and A. G. divers other goods, wares and merchandise; the defendant, afterwards, &c. in consideration of the same, assumed upon himself, and to the plaintiffs then and there faithfully promised, that he would well and truly pay to them as much money as they reasonably deserved to have for the said goods, wares and merchandise, in case H. and G. did not thereafter pay and satisfy the plaintiffs therefor. And the plaintiffs aver, that they reasonably deserved to have for the goods, wares and merchandise, last mentioned, the sum of £  2000 current money, to wit, &c. of which H. and G. and the defendant, afterwards, &c. had notice. And the plaintiffs further aver, that H. and G. although often afterwards, &c. thereto requested by the plaintiffs, have not paid in any manner, contended or satisfied, the said sum of money, or any part thereof, to the plaintiffs, but have wholly refused to pay the same to them, and still do refuse, and have become wholly unable to pay the same, and are bankrupts and insolvent, to wit, &c. Of all which the defendant afterwards, &c. had notice. 3. That H. and G. on, &c. were about to purchase and buy of the plaintiffs certain other goods, &c.  [**3]  to wit, &c. the defendant undertook, and to the plaintiffs did then and there faithfully promise, that he would well and truly pay to the plaintiffs as much current money as they deserve to have for the goods, &c. if the plaintiffs should sell and deliver the same to H. and G. and they should fail in making payment therefor. And the plaintiffs aver, that in consideration of the promise and undertaking of the defendant, in form aforesaid made, they did afterwards, &c. sell and deliver to H. and G. the said goods, &c. which said goods, &c. were at the time of the said sale and delivery thereof, to wit, &c. worth, and the plaintiffs deserved to have therefor, other sum of £  2000 current money; of all which premises H. and G. and the defendant, afterwards, &c. had notice. And that the defendant, in consideration of the premises, afterwards, &c. assumed upon himself, and to the plaintiffs then and there faithfully promised that he would well and truly pay to them the said sum of £  2000 current money, whenever he should afterwards be thereto requested. 4. That the plaintiffs, had on, &c. bargained and agreed to and with H. and G. for the purchase of certain other goods, &c. by them, H.  [**4]  and G. of the plaintiffs to be then and there made, for the price and sum of other £  2000 current money; the defendant then and there, to wit, on, &c. assumed upon himself, and to the plaintiffs then and there faithfully promised, that if they would deliver the said goods, &c. to H. and G. he the defendant would well and truly pay to the plaintiffs the said sum of £  2000 current money, in case H. and G. should be unable to pay for the same, or refuse to pay therefor. And the plaintiffs aver, that they, in consideration of the premises, afterwards, &c. did sell and deliver to H. and G. the said goods, &c. for the sum of £  2000 current money, of which the defendant then and there had notice. And the plaintiffs aver, that H. and G. although often afterwards thereto requested by the plaintiffs, to wit, on, &c. have hitherto wholly refused to pay the said sum of £  2000 current money, and do still refuse, and are become bankrupt, insolvent, and unable to pay the sum of money last mentioned, or any part thereof; by reason whereof the defendant became liable to pay to the plaintiffs the sum of money last mentioned; and being so liable the defendant, in consideration thereof, afterwards,  [**5]  to wit, on, &c. upon himself assumed, and to the plaintiffs then and there faithfully promised to pay them the sum of money last mentioned, when afterwards he should be thereunto requested. Nevertheless, &c. The general issue was pleaded; and at the trial at May term 1803, the following facts were proved to the jury: That one of the Mr. Beaumonts' of the house of Ridsdale & Beaumonts, the plaintiffs, was, previous to the 6th of April 1795, in the United States, and among other places, in the city of Baltimore, where the defendant then resided, and where the house of Hackett and Grant was established, soliciting orders for merchandise from his house; that the defendant wrote the following letter, on the day on which it is dated, and sent the same by his son Alexander, who went to England with a view of establishing connections in the commercial line there with the different manufacturers, and others.

"Baltimore, 6 April, 1795.

Messrs. Ridsdale and Beaumont, Gentlemen--By the recommendation of Mr. Beaumont, I take the liberty to address you by my son Alexander, who visits England with a view of establishing connections in the commercial line there with the different manufacturers,  [**6]  and others. He is concerned with Mr. John Hacket of this place, under the firm of Hacket and Grant. For their plan, I refer to themselves; have, therefore, only to add, that I will guarantee their engagements, should you think it necessary, for any transaction they may have with your house. I am, &c.

Danl. Grant."

Alexander Grant was one of the house of Hacket and Grant; and he arrived in England some time before the 30th of July in the said year, and delivered the letter to the plaintiffs, who, by the directions of A. Grant, after his arrival in England, and while there, shipped on the 30th July in said year, to the house of H. & G. goods to the amount of £  1560 0 10 sterling. Afterwards, and some time in the fall of the said year, A. Grant returned to Baltimore, and in consequence of orders sent by H. and G. and before A. Grant went a second time to England, the plaintiffs shipped goods to H. and G. to the amount of £  1103 7 0 sterling, to wit, on the 18th of February 1796; and also that A. Grant went a second time to England, and arrived there some time before the 23d of June in the year last mentioned, on which day the plaintiffs, by the directions of H. and G. and [**7]  while A. Grant was in England, shipped to H. and G. other goods to the amount of £  689 9 8 sterling; and that the account which they produced contains a correct statement of the mercantile transactions between the plaintiffs and H. & G. and that the balance there stated, of £  707 7 2, was justly due to the plaintiffs from H. and G. who on the 30th of April 1798, acknowledged the account to be correct, and signed the same. It was further proved, that H. & G. are insolvent. No evidence was given that the plaintiffs returned any answer to the defendant's letter, or that any other correspondence took place between the defendant and the plaintiffs, at any time before the 30th of April 1798. The plaintiffs further proved, that immediately after having liquidated the account with H. and G. they required payment of them, which H. and G. declined and refused, alleging, that they were unable to pay the same; of which application and refusal immediate notice was given to the defendant by the plaintiffs, and a demand of the debt was made by them of him, who requested time to consider thereon, and advise with counsel, and afterwards gave for answer, that he would not pay the debt. The plaintiffs [**8]  further proved, that after various applications to H. and G. and to the defendant, they instituted a suit on the 6th of March 1799, in the general court for the western shore, against H. and G. and at October term 1800, obtained judgment against them, and afterwards issued an execution against them; from which execution they were discharged by an order of the chancellor, under an insolvent law passed in 1800. The plaintiffs then applied to the court, that they would direct the jury, that upon the facts so proved and given in evidence, the defendant was answerable as the guarantee of Hacket and Grant, and that the plaintiffs were entitled to their verdict for the balance due.

CHASE, Ch. J. The court give the direction prayed for. The court are of opinion, that the goods were shipped upon the credit of the letter; and that the guarantee was to continue until countermanded by the defendant; that the goods were shipped upon the united credit of Hacket and Grant, and the defendant.

The defendant excepted to the opinion of the court, and the verdict and judgment being for the plaintiffs, the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

D G, in a letter of credit to R and B, in favour of H and G, used the following expressions: "I will guarantee their engagements, should you think it necessary, for any transaction they may have with your house"--Held, that the guaranty was an absolute one, and to continue until countermanded by D G.

Where the judgment of the general court, after a general verdict in assumpsit, was reversed, because of a defective count in the declaration.

Procedendo a warded where the court of appeals concurred with the court below in the opinion expressed in the bill of exceptions, but reversed the judgment, because of a defective count in the declaration.  

COUNSEL:
Martin,  [**9]  for the Appellant, contended. 1. That the letter wrote by the appellant to the appellees was not an absolute guarantee. 2. That if it was, it did not extend beyond the first shipment after the receipt of the letter. 3. That the allegata and probata did not agree. He referred, as to the first point, to Butcher vs. Andrews, 1 Salk. 23. Marriott vs. Lister, 2 Wils. 141. Jones vs. Cooper, 1 Cowp. 237. Matson vs. Wharam, 2 T. R. 80. On the third point, he insisted that the several counts in the declaration were defective; that the first count was similar to that in Butcher vs. Andrews, and Marriott vs. Lister, where the judgments were arrested. That in the second count stated a promise, in consideration of having sold goods to H. and G. and the evidence was, that the promise was made before the goods were sold. That in the third count, there was no averment that H. and G. did not pay for the goods; and to the fourth count, that the evidence offered was different from that stated in that count; that it did not pursue the letter of guarantee, which should have been set out according to its date, and in the words thereof; and that the facts, as they appeared in evidence, should be stated,  [**10]  as also ought the continuance of the guarantee. He referred to Esp. Dig. 140, and 2 Went. Plead. 555. That there was no averment in the declaration that Ridsdale and Beaumont, to whom the letter was addressed, and the plaintiffs, were the same persons.

Harper, for the Appellees, admitted that some of the objections to the declaration were well founded; and that if any one of the counts were defective, it would be fatal, if it was not cured by the verdict, which he insisted would aid the defects urged. That if there was one good count, the verdict being general, it was sufficient; and if the evidence supported any one good count, it was sufficient. That the second count was a good one, to which the evidence would apply. He also contended that the letter was an absolute continuing guarantee, until it should be countermanded.

Martin, in reply, insisted, that where the evidence was not stated, and any one of the counts in the declaration was defective, there was some reason to suppose there was evidence applicable to such defective count; but that if the evidence was set out, and there was any one count to which it did not apply, it was fatal.

Curia adv. vult.  

JUDGES:
The cause [**11]  was argued before TILGHMAN, BUCHANAN, NICHOLSON, and GANTT, J.  

OPINION:

 [*191]  THE COURT at this term concurred with the General Court in the opinion pronounced in the bill of exceptions, but reversed the judgment because of a defective count in the declaration.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

12 of 28 DOCUMENTS 

DAVIS et ux. VS. WALSH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 329; 1808 Md. LEXIS 20 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery, dismissing the bill of complaint. The bill stated, that Davis being seized of a valuable real property, and also possessed of a considerable personal estate, consisting, among other things, of certain chattels real, and being also indebted to divers citizens of this and of the United States, beyond what he was able to pay without a greater indulgence than his creditors were disposed to grant him, was compelled, sometime in the summer of the year 1787, to apply to the chancellor for the benefit of the act of assembly respecting insolvent debtors; that in consequence thereof Stephen Wilson and Robert Lemmon were appointed trustees on behalf of the creditors of Davis, and that he executed to them, on the 10th of October 1788, a deed of all his real and personal property. That the trustees proceeded to sell, and did sell a part of the property to Cumberland Dugan, for the sum of £  1310 current money, and on the 6th of November 1792, the trustees executed to Dugan a deed for the property so to him sold. That Dugan, in making the purchase, acted professedly as the friend of Davis, so far, that if he Davis could procure the purchase money within [**2]  a certain time, he was to have the benefit of the purchase; but as he was not able so to do, it became necessary to sell the property, or a part thereof, to raise the purchase money, and to indemnify Dugan; and that Dugan being about to sell the property, and among the rest the following five lots, distinguished on a plot of Baltimore town by the numbers 950, 951, 952, 953 and 954, which lay connected and adjoining each other, on which Davis had a house, in which he resided with his family, and also a garden adjoining the house, which Davis and his wife were particularly desirous to preserve for themselves, but thinking themselves not able to purchase the whole of the lots, they were anxious that the lots should not be sold together, but subdivided into three or more subdivisions, each to be sold separately, and one of the subdivisions to include the house and garden; and in that case it was agreed that a friend should become the purchaser of the subdivision, including the house and garden, for and on behalf of Mary, the wife of Davis, and as a trustee for her, and that upon the purchase money being paid, the subdivision, so to be purchased, should be conveyed to her; and the better [**3]  to effect this design, Davis and wife conversed with Walsh, the defendant, who professed himself a very warm friend to Davis and wife, and requested him to endeavour to prevail on Dugan to sell the lots in subdivisions, to enable Mary, the wife of Davis, by the intervention of a friend, to become the purchaser, fully disclosing to Walsh the intention of Davis and wife, that the wife should thus become the purchaser of that subdivision which should include the house and garden. Walsh perfectly approved Davis and wife's design, and promised to give his assistance for its completion, but declared, that in preference to applying to Dugan himself, he would apply to major Thomas Yates, the auctioneer, and solicit him to procure Dugan thus to subdivide the property, and as an encouragement for Dugan so to do, he would let Yates know that in such case he, Walsh, would purchase one of the subdivisions, consisting of meadows. That Walsh accordingly applied to Yates to procure a subdivision of the lots, informing Yates that it was intended the subdivision, in which the house and garden were included, should be bought in, in trust for the wife of Davis; and Yates, in consequence, prevailed on [**4]  Dugan to subdivide the lots into three subdivisions, in such manner that one of them, containing nearly one acre of ground, should include the house and garden. That Davis and wife agreed with Joseph Stockton, who married the sister of the wife of Davis, to be the nominal purchaser of the house and garden for the wife of Davis, and to attend the sale and bid off the said subdivision for her, with which Walsh was fully acquainted. That Davis, the morning before the sale, applied to Walsh to be the security of Stockton for complying with the terms of payment, provided Stockton purchased the house and garden on behalf of the wife of Davis, which Walsh agreed to do. That both Davis and wife, as well as Walsh and Stockton, attended the sale; that Stockton bid for the subdivision, including the house and garden, and it was struck off to him for the sum of £  135, that being the highest bid for the same; and that Walsh became the purchaser of the other two subdivisions, giving for the one £  90, and for the other £  83. That Walsh, Dugan, and others, well knew that Stockton bid for the wife of Davis; that this was repeatedly mentioned, and that publicly, during the auction, and while he was [**5]  bidding for the property. That by the terms of the sale, one-third of the purchase money was to be paid in three months from the day of sale, one-third in six months, and the other third in nine months, and that the sale was made on the 15th of June 1792, before which time Wilson and Lemmon had made their sale to Dugan, although they did not execute the deed to Dugan until some months after. That Stockton executed and delivered to Dugan a bond, with Walsh his surety, for payment of the purchase money for the subdivision purchased by Stockton for the wife of Davis; the money to pay for which was to be furnished and provided by Davis; and that Walsh executed and delivered to Dugan a bond, with Stockton his surety, for the purchase money of the other two subdivisions. That Davis and wife have had the constant actual possession of the subdivision so bid off by Stockton, ever since the said purchase. That the day of the sale, Davis was at the house of Stockton, when Dugan was there with bonds to be executed for the purchase money, and Davis observed that they ought to state the money was for the house and garden, but Dugan replied, it was immaterial, for that he would at any time give a [**6]  bond for the conveyance thereof. That sometime after the sale, Davis called on Walsh, and told him he thought it time for Dugan to give his bond to convey the house and garden; for that he Davis, had procured a great part of the sum first to be paid, and that he Davis wished to have a bond for the conveyance before he made the payment; whereupon, after a short pause, Walsh replied, to the amazement of Davis, that he, Walsh, had got a bond for the conveyance, and that Davis had nothing to do with it. Davis then asked Walsh what he meant by having a bond of conveyance, as he, Walsh, was only the surety for Stockton who purchased it in trust for the wife of Davis? Walsh replied, he meant that Stockton had given it all up to him. Davis then told Walsh that when the first payment became due he expected to make the payment, and that he did not want Walsh to pay for him, to which Walsh answered with warmth that Davis had nothing to do with it. That Stockton (as Davis and wife are informed and believe,) being about to leave this state and go to Pennsylvania, where he now resides, was induced, in order to secure Walsh, to direct that Dugan should give the bond of conveyance to Walsh, Walsh [**7]  at the same time assuring Stockton that no advantage should be taken thereof, but that whenever Davis paid the purchase money, the wife of Davis should have a deed executed to her for the same. That some months after the sale, Davis went to Dugan, and offered to pay him $ 200, which he had then ready to pay him, and to give Dugan security for the residue, provided he would give up the bonds which Stockton had executed, with Walsh as his surety, and offered to make payment of the residue in sixty days, but Dugan declared he could do nothing without consulting Walsh, and that he, Dugan, must make the conveyance to whomsoever Stockton directed, saying that he did not know Davis in the transaction, although' at the same time Dugan acknowledged that he knew Stockton purchased the property for the wife of Davis; and that Stockton had so mentioned in his, Dugan's presence, to Walsh, and also that Stockton made Walsh promise that she should have it when Davis paid the money for which it was purchased. That Davis was always willing and desirous to have paid the purchase money according to the contract, and several times applied to Dugan on the subject, and also to Walsh as being the surety,  [**8]  for payment of the same. That Dugan always alleged that he did not know Davis in the business, and that he had conveyed, or must convey, the property to Walsh; and when Davis applied to Walsh, he insisted Davis had nothing to do with the property, and that it belonged to him, Walsh. That Dugan hath actually conveyed the house and garden, and the lot on which they are situate, to Walsh; and that sometime in June last Walsh claimed of Davis £  30, as rent for one year for the premises, and distrained for the same, although' Davis saith that he never rented the premises of Walsh, or agreed to pay him any rent therefor, but always claimed the same in consequence of the said purchase; and that Davis was obliged to replevy the goods so distrained by Walsh. That Walsh hath instituted an action of ejectment in the county court of Baltimore against Davis, to recover the possession of the four lots No. 951, 952, 953 and 954, which include the property so purchased by Stockton. That within the last thirty days Walsh also served Davis with a notice, as if he had been a tenant of Walsh also served Davis with a notice, as if he had been a tenant of Walsh, to leave the premises within thirty days [**9]  from the notice, in order to institute proceedings against Davis under the act, entitled, "An act to provide a summary mode of recovering the possession of lands and tenements holden by tenants for years, or at will, after the expiration of their terms." That on the 15th of February last, Davis did actually tender to Walsh the whole amount of the principal and interest of the purchase money, for which Stockton purchased the property, and demanded that Walsh should convey the same to the wife of Davis, and that Walsh refused to receive the money, or execute a conveyance. Prayer, that Davis and wife may be quieted in their possession of the premises; and that Walsh may be compelled by a decree to convey to the wife of Davis the property so purchased by Stockton for her use. Prayer also for subpena, and for an injunction, &c. The answer of Walsh, the defendant, admits that Davis applied for the benefit of the insolvent law, and that the trustees named became entitled to his estate as the bill alleges, but the defendant has no knowledge whether any agreement ever took place between the complainants and Dugan, that in case the purchase money was obtained by them he was to convey the same [**10]  to them. The defendant admits that the lots of ground mentioned were sold by Dugan at public sale as stated; and the defendant saith, that the complainant, Mary, came to him previous to the sale thereof, and mentioned to him that she and her husband were desirous of purchasing that part on which the improvements of a small house and garden were made, but expressed her apprehensions that they would be unable to accomplish the payments at the limited periods, and asked the defendant if he would consent to take the same to his own account, in case they were so unable, and the defendant did consent to do so. That at the sale of the property, which was distributed into three parts, the defendant became the purchaser of two third parts thereof, and that Stockton became the purchaser of the remaining third part, including the house and garden, as the defendant was informed and believes, in trust for Davis, in the event of his making the payments in 3, 6 and 9 months, that being the time limited at the sale thereof. That the defendant became the security of Stockton for the purchase money of the third part, to Dugan, and at that time also informed Stockton that he had made the promise, herein [**11]  before stated, respecting the same, to Mrs. Davis. That before bonds for the conveyance of the lots of ground were executed by Dugan, the complainants severally came to the defendant, and informed him that they had determined not to have any thing to do with the purchase made by Stockton, and requested the defendant to take the whole upon himself, and obtain a bond in his own name for the conveyance thereof; at that time also the defendant consented to take the same upon himself, but observed to the complainant Davis, that it would be proper for him and Stockton to call on Dugan and request that the bond of conveyance should be executed to the defendant only. That shortly after this conversation, Davis and Stockton informed the defendant that they had waited on Dugan for that purpose. That at another day, previous to the execution of the bond of conveyance, Davis, in conversation with the defendant relative to the property, and in order to induce the defendant the more readily to take the purchase upon himself, informed him that Peter Litzinger, the proprietor of the adjoining ground, would sell the same on reasonable terms, and advised the defendant to purchase the same, as he would [**12]  thereby obtain the whole front on both sides of the street; and the defendant did accordingly purchase the opposite front from Litzinger. The defendant afterwards obtained the bond of conveyance in his own name; that he was pressed to take the same both by Stockton and Davis. That at the stipulated periods he paid the purchase money to Dugan, and has since obtained conveyances in fee for the whole of the property; and at the request of Stockton executed to him a bond of indemnity against the payment of the purchase money to Dugan. That Davis, at the time of the sale of the property, was considerably indebted to the defendant for goods sold and delivered, and that on that account he is now indebted to the defendant in the sum of more than £  50. That after the defendant made the first payment for the property to Dugan, he informed Davis that he must pay £  30 per annum rent. That he always considered himself entitled to recover that sum, and that Davis was his tenant at that rent, and compellable to the payment thereof by distress. That under this impression, and in consequence of Davis's refusal to pay the same, he levied a distress, and instituted such process for the recovery of [**13]  the possession of the property, as stated in the bill. The defendant doth positively deny that he either, directly or indirectly, ever promised or gave any other assurance to the complainants, or either of them, or to Stockton, that whenever they paid the purchase money he would execute a conveyance for the third, or any other part, to Mary one of the complainants. That he does not believe any tender of money, on account of the pretended claim of the complainants, was ever made to any person, until nearly two years after the sale, when Davis came to the defendant's house, and told him that he came to tender him money for the property now possessed by the complainants, when the defendant answered, that as he had neither sold, nor promised to sell him, any ground, he could not receive any on that account, but would be thankful to receive and apply the same to their credit for goods sold to Mrs. Davis two years before, which Davis refused, observing that that account should be paid in due time. That since the property hath been in the possession of Davis, the same hath suffered great injury, and the defendant has reason to apprehend, and doth believe, will be almost wholly ruined if suffered [**14]  to remain with him; and the defendant is restrained from taking the possession thereof. The defendant doth positively aver, that he hath never, since the purchase of the property, promised or bound himself to permit the complainants the privilege of paying up the principal and interest of the purchase money, and taking the property; and expressly denies any trust whatever for their benefit. He denies the fraud and oppression charged by the complainants, &c.

A motion to dissolve the injunction was made by the defendant, which being submitted,

HANSON, Chancellor, stated, that the bill and answer were by him read and considered, and it appearing that the equity stated in the bill, on which the injunction was obtained, is fully denied by the answer; and there being no circumstances to induce the chancellor to continue the injunction until final hearing, or further order, it is adjudged and ordered, that the injunction be, and it is hereby dissolved.

Commissions issued for taking testimony, which were executed and returned, containing the following evidence.

Joseph Stockton He affirmed that in the year 1793 he was present at the sale of a house and lot situated on Hampstead [**15]  Hill, at the head of Bond-street, in the city of Baltimore, that the sale was made by order of Cumberland Dugan, the owner of the property, under the superintendence of major Yates, an auctioneer; that at the time of the sale, the premises were divided into three parts or parcels; that the affirmant, at the instance and request of Mary Davis, one of the complainants, with the knowledge and approbation of her husband, the other complainant, became the purchaser of the first part of parcel of the premises, whereon a house and garden were erected and laid out; that at the time of the sale it was publicly announced by the auctioneer, and was understood by the defendant, who was present, that the affirmant made the purchase as agent, and for the use of the complainants, that the defendant became the purchaser of the other two lots, parts or parcels of the premises; that the affirmant bid £  130 for the lot which he bought, and that the defendant bid a larger sum (how much the affirmant cannot recollect,) for the two parts which he bought. That the affirmant and Walsh became mutually bound for each other unto Dugan, for the price of their respective purchases. That a few days after the sale,  [**16]  when the affirmant was about to leave Baltimore, it was agreed, by and with the knowledge and consent of all the parties, that Dugan should convey the whole of the premises, as well the lot purchased by the affirmant, as the other two lots, to the defendant; that when such conveyance was agreed upon, Davis declared it was done in confidence, and, as the affirmant understood, upon trust, that so soon as the defendant should be relieved from his suretyship on account of the lot purchased by the affirmant, the same should be vested in the complainants, for whose use it had been purchased; that the affirmant directed such conveyance to be made accordingly, and never understood or intended that the same should convey any other property or interest in the lot by him purchased as aforesaid, but on the terms, and for the purpose of indemnifying the defendant against the security into which he had entered as aforesaid. That at the time of entering into the security, mutually for each other, to Dugan, the affirmant received a bond from the defendant in the penal sum of £  600, conditioned to indemnify this affirmant against the bonds which he had executed to Dugan for the purchase of the premises;  [**17]  that some time in the year 1795, subsequent to the commencement of the present suit, the defendant called upon the affirmant in Philadelphia, (where the affirmant then lived,) and produced and delivered up to the affirmant the bonds executed to Dugan, whereupon the affirmant delivered to the defendant the bond which the affirmant had received from him to indemnify the affirmant as aforesaid. That the complainants were in possession of the premises at the time of the sale, and continued so when the affirmant left Baltimore, with the knowledge, and as he believes with the approbation of the defendant.

James Gottier. He deposed, that sometime in the year 1793, soon after the sale of Dugan's property, the deponent, and Ebenezer Graves, were requested by the complainants to make a tender of the purchase money of the house and lot, which Stockton had bought for them at the said sale; that the complainants accordingly gave to the deponent and Graves the sum of £  135, with an additional sum for interest, in order to make such tender. That the deponent and Graves made the first tender of the money to Dugan, but he said that he had already conveyed the premises to Walsh, and supposed that [**18]  he would take the money. That the deponent and Graves then proceeded to the house of Walsh, and informed him that they were come to make payment for the house and lot which Stockton had purchased for Davis and his wife, who had given the money for that purpose; that the deponent and Graves tendered the sum, and interest aforesaid, and requested Walsh to count the same; that Walsh declared he had no doubt about the quality or quantity of the money, but observed that he had bought the premises for himself, and did not mean to sell again.

Ebenezer Graves. He deposed to the same effect above deposed by Gottier, fixing the time of the tender to the 15th of February 1794, as made to Dugan, and on the next day to Walsh.

Colonel Thomas Yates. He deposed that at the time he went to make the sale for Cumberland Dugan, the complainants both expressed their desire to become purchasers of that part of the property which included the house and garden, and that they should request Mr. Stockton to purchase the same for them, provided it did not go too high. He thinks Walsh and Dugan were present at the time of this conversation. The lots were laid off in three divisions, one of which division [**19]  was to include the house and garden, to accommodate the complainants if they were able to purchase, and with the consent of Dugan, and made from the deponent's recommendation to Dugan at the desire of Davis. It was understood by the deponent that Stockton was bidding for the said part for Davis or wife, and believes it was so understood by Walsh and Dugan, as it was a subject of conversation at the time of the sale, and Dugan had consented to the division to accommodate Davis in the purchase, but he has no knowledge of their being acquainted with Stockton's bidding for Davis or wife, other than his belief, founded on the circumstances already stated. He heard Walsh, sometime after the sale, inform Dugan that he had become security for Stockton, who being unable to pay, had directed the conveyance to be made for said part by Dugan to him Walsh.

Cumberland Dugan. He deposed that he purchased the property under an agreement to let Davis have the same, provided he paid the purchase money, and £  50 to the deponent for his trouble, within twenty months from the day of sale; and if the purchase money, and the £  50, were not paid by that time, the property was to be sold by the deponent,  [**20]  and the proceeds of the sale, if it exceeded the purchase money, and £  50, were to be paid to Davis. That Davis and wife did express their desire to the deponent to preserve the house and garden for themselves, but he does not recollect that they mentioned it to Walsh or Yates. He does not know who applied to him for the purpose of subdividing the lots, but it was concluded upon between him and Col. Yates, that the property would sell better if it was so subdivided; and believes the subdivision was so made, in order to afford the complainants, or one of them, an opportunity to purchase in the division containing the house and garden. He does not recollect that it was declared at the time of the sale, that Stockton bid for the said subdivision for the use and benefit of Davis and his wife, or one of them, but immediately after the sale Stockton said he had purchased for Davis and wife, with an intention to let them have the property, if they complied with the terms of sale; but he does not know whether the same was known by Walsh. That immediately after the sale, the deponent called on Walsh and Stockton to execute bonds agreeably to the terms of the sale, which they accordingly did,  [**21]  being securities for each other; and the deponent told them they might have bonds of conveyance when they pleased. Some days after the taking of which bonds, Stockton called on the deponent, and directed him to execute a bond of conveyance for the whole of the said lots to Walsh. The deponent did so, and the purchase money was paid to him by Walsh, to whom he executed conveyances. That sometime before the executing the said bond of conveyance, Davis, or his wife, called on the deponent, and told him it was perfectly agreeable that a bond of conveyance should be given to Walsh for the whole of the property; and the deponent understood that the complainants and defendant were then on good terms. He believes that Walsh did know, or had been informed, at or before the time when the bond of conveyance was executed, that Stockton purchased the property for Davis or wife. He believes that Davis called on him a short time before the first payment became due, and after the bond of conveyance had been given to Walsh, and said he would pay him $ 200, and give him security for the remainder, but the deponent said he could not do any thing in it because the bond was nearly due, and he expected [**22]  to get the whole when it became due.

Job Garretson. He deposed that it was publicly said at the sale that Stockton bid for Mrs. Davis; that the deponent so understood it himself, and supposed it to be so understood by others, from the general conversation, and he believes it was so understood by Walsh and Dugan, and that Dugan told the deponent so. That at the time of the sale, Stockton told the deponent that Walsh had agreed to be security for him if he bought the property. That Dugan told the deponent that he supposed Walsh would be security for Stockton. Walsh afterwards said to deponent, he thought it was a pity that Davis and wife should be put out of the property, and that he had become security for the payment of the money, and that when they paid the money the property was theirs. That a few days before Stockton went away, Dugan told the deponent that Stockton had a bond of conveyance, and that he might deed or assign it to Walsh, but whenever the money was paid, the property would be theirs, meaning Davis and wife. That Stockton, a little before, informed the deponent, that he was a good deal uneasy about his being security for Davis for the purchase money of the said [**23]  house and garden; that he was going to leave the place in a few days, and had a mind to let Walsh have it, and whenever Davis and wife paid the money, Walsh would let them have the property. On the deponent informing Dugan of this conversation, the preceding conversation with Dugan took place.

It was admitted that Davis remained in possession of the house and garden, until he was turned out by a writ of habere facias possessionem, issued on a judgment at law obtained against him at the suit of Walsh's lessee. That Stockton removed out of the state shortly after the purchase, and before any part of the purchase money was paid. That the sale made by Dugan was after the time of the purchase made of Davis's trustees.

HANSON, Chancellor, (December term, 1805.) The cause standing ready for hearing, has been debated by the counsel on each side a, and the whole by the chancellor carefully considered.

a Martin, (Attorney General,) for the complainants, and Winchester, for the defendant.

How often does the chancellor think it proper to mention the principle on which the statute of frauds was framed, and principles in this court established. There is in this case no agreement,  [**24]  that the chancellor perceives. Is it necessary to say that a contract is a stipulation or agreement, or understanding, between two persons, each of whom is bound to do something on his part, and that if one is not bound, he has no right to consider the other as bound? It is true, that an express contract may be so made, as that one shall for a consideration be bound, and the other not bound without his own will. For instance, A and B make this agreement--A binds himself for the consideration of 10 dollars, before the 25th of December, to procure to B 10 hogs, for which, if B likes them, and chooses to take them, he shall pay at the rate of $ 8 per 100 wt. In this case agreement is clear, A is bound to bring the hogs; but it is at the election of B to take or reject them as he thinks proper, losing his $ 10. But if there be no consideration to A, it is not to be supposed that he is bound to bring the hogs, and B not bound to take them. This may indeed be considered as illustrating by the thing itself. Let it be said then, that in the present case there was, on the part of the complainants, no contract. There was no actus contra actum; there was no consideration flowing from them; there [**25]  was nothing binding on them.

It has been contended, that Stockton only acted as trustee for the complainants, and purchased for them. But is there any proof, or even allegation, that he purchased with their money, or that they were bound to provide the money, or take the purchase from them? It has been insisted too, that as he made the contract in his own name, the property was to be considered as a security in the hands of him, the nominal purchaser, and that as this was the case, the time stipulated for redeeming it was to be considered in the same light as the day of redemption mentioned in a common mortgage. There is no analogy, and it is not to be conceived that this court ought to determine, that although there was no consideration flowing from the complainants, and although there was nothing binding on them. Stockton should be obliged to convey to them at any time, when they should find it convenient to pay the money; and that at any period after the time stipulated, whoever should hold the property from, by, or under Stockton, after even twenty mesne transfers, should hold it subject to the will of the complainants to redeem it at any time. How would such doctrine comport [**26]  with the interests of a young thriving town?

The chancellor does not conceive there is any solidity in the observation respecting answers in this court. The distinction is plain. Where a defendant first admits the allegations in a bill, and then sets up some distinct after transaction, by way of avoidance, he is bound to prove that transaction. But where a man is called on by a bill in this court to say whether or not there was an agreement between him and the complainant, and what it was, his answer, with respect to the nature of that agreement, is to be taken altogether. For instance, says the bill of A--B contracted with me, by parol, for the consideration of $ 5000, to sell me 300 acres of land in Baltimore county, of which he put me in possession, but I was to have credit for five years without paying interest. B, in his answer, admits that there was a parol contract for the land, and possession given as stated; but instead of having credit as aforesaid without interest, A was to give him bond, with security, for paying with interest in three years. Will common sense suffer a construction as, that because B admits a contract and possession he must be considered to have admitted [**27]  every thing necessary for A's purpose, unless he can prove, on commission, that the contract was as stated in the answer? No| the absurdity is glaring. But if B had admitted the matters stated in the bill to be facts, but went on and said that afterwards, A, for the consideration of $ 100, had agreed to give up the purchase, &c. that part of the answer must be proved on commission, unless A, on interrogatories, had admitted its truth.

The chancellor thinks proper to make a remark, which ought to have come before--supposing Stockton really bound to convey on receiving the purchase money on or before such a day, inasmuch as the complainants were under no obligation whatever to take the purchase off Stockton's hands, and inasmuch as he had no valuable consideration, the utmost they could claim in reason would be to take the purchase off his hands by paying the money on the day stipulated. Suppose this case--they do not bring him the money on that day--property has fallen so much in value that it is not for their interest to take it on or before the day. He cannot compel them to take it. He does not wish to keep it, but to get free of it on the best terms. He sells it for $ 500 less [**28]  than it cost him. Ten years after this the property is worth three times as much as it cost Stockton. Then, indeed, Davis and wife, whether or not they have money, can contrive to redeem, or claim it to advantage, provided it can be so redeemed or claimed. Well--the purchaser from Stockton, or the purchaser from that purchaser, or the purchaser from the second purchaser, is obliged, on Davis's application, to convey him the property on his paying, &c. It is really an affront to common sense to say that Davis's claim ought to prevail.

The chancellor has given his ideas at large. He might refer to decisions of the court of appeals, which if there be a judgment to be formed from decrees, the reasons of which are not assigned, are more strict with respect to agreements set up against the intent of the statute of frauds than the chancellor has ever seen.

The chancellor indeed has always thought that it would have been much better to construe the statute of frauds strictly against contracts. However he has always endeavoured to conform to decisions, which on any principle might be considered as binding on him. He has never intentionally decided against any decree of the Lord Chancellor [**29]  of England, made before the revolution, or even any decision of Chancellor Rogers, which hath not been controverted, unless on a bill of review. As to the present case, he is satisfied, that by decreeing a dismission of the bill, he will contravene the principle of no decision in equity, which ever hath been given. Decreed, that the bill of the complainants be dismissed, and the defendant be dismissed, but without costs.

From which decree the complainants appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

W D becoming an insolvent debtor, his real estate was sold by his trustee, and purchased by C D, to whom a deed was executed. C D, in making the purchase, acted professedly as a friend to W D, so far that if he could procure the purchase money within a certain time, he was to have the benefit of the purchase; but as he could not raise the purchase money, it became necessary to sell a part of the estate to reimburse C D, which part W D and M his wife, were desirous to preserve to themselves, and were anxious to procure a friend to become the purchaser for and on behalf of M, the wife, and as a trustee for her; which intention, previous to the sale, was made known to R W, who approved of it, and it was agreed that J S, should be the nominal purchaser, and R W was to be his surety for the purchase money J S became the purchaser, and it was known and understood, at the time, that he purchased for M the wife of W D. R W became surety for J S, and W D has always been in possession of the premises. W D, having part of the purchase money applied to R W, to obtain a bond of conveyance from C D to M, the wife of W D, for the property, when he was informed by R W that he had got a bond to himself, as J S had given it all up to him, and that W D had nothing to do with it. J S had been induced, in order to secure R W, to direct C D to give a bond of conveyance to R W, who assured J S that no advantage should be taken of W D, and that when he paid the purchase money, a deed should be executed to his wife M. The premises were conveyed by C D to R W, who brought an action of ejectment against W D. The amount of principal and interest, of the purchase money, was tendered by W D to R W, and a deed demanded, which he refused to execute. W D, and M his wife, filed their bill against R W, to be quieted in their possession of the premises, and to compel a conveyance from him to M, the wife--Decreed, that R W convey the land in question to W D, and M, his wife, in fee simple, and that an account be stated, &c, and the balance due be paid at the time R W shall convey the land.  

COUNSEL:
Martin, for the Appellants; and by

Harper, for the Appellee.  

JUDGES:
The case was argued before CHASE, Ch. J. NICHOLSON, and GANTT, J.  

OPINION:

 [*344]  THE COURT Reversed the decree of the court of chancery, and decreed that the appellee convey the land in question to the appellants, in fee simple, and pay to them all the costs in the court of chancery, and in this court, and all the costs incurred by Davis at law in defending the action of ejectment prosecuted against him by the appellee, and that the appellee restore the possession of the land to the appellants. Also that an account be taken of the principal money and interest paid by the appellee for the land, at the [**30]  respective times he paid the same, and that the appellants be charged therewith; and that an account also be taken of the rents and profits of the land, which have accrued and been received by the appellee since he took possession thereof; and in stating the account between the parties, the appellee be charged therewith at the respective times he received the same, with legal interest thereon; and that the balance of the money which may be due, on the adjustment of the said account, be paid to the party to whom it shall be due, whether appellants or appellee, at the time the appellee shall convey the land. And that the chancellor make all necessary rules and orders for having this decree carried into full and complete effect.
DECREE REVERSED.  

13 of 28 DOCUMENTS 

HUNTT & PARKS VS. GIST, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 498; 1809 Md. LEXIS 26 

December, 1809, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill filed by the appellees against the appellants, on the 16th of January 1795, stated that William Parks, deceased, was seized and possessed of a tract of land in Baltimore county called Turkey Cock Alley, containing 50 acres, which by virtue of a special warrant, was on the 10th of July 1754 resurveyed for him, and a certificate thereof returned into the land office, by which he caused to be added 102 acres of land supposed to be vacant, and consolidated the whole into one survey by the same name of Turkey Cock Alley. That Parks, neglecting to compound for the added vacancy within the time required, a proclamation warrant was thereupon granted to Edward Stevenson, and he, on the 22d of February 1764, assigned the same to Parks, who by virtue of the warrant of proclamation and assignment, on the 28th of the same month, had resurveyed for him the added vacancy before mentioned, excluding seven acres thereof as being within the lines of elder surveys, and upon the resurvey caused to be added the quantity of 127 acres of vacant land, giving to the whole the name of Parks's Death Knot; and on the 5th of March 1764, he obtained a patent [**2]  on the certificate. That on the 14th of April 1764, Parks executed and delivered to Joshua Cockey, deceased, a bond of conveyance for 120 acres of the land called Parks's Death Knot, by which bond it was, as the complainants believe, intended to secure to Cockey 120 acres of the vacancy added on the proclamation warrant, forming the southernmost parts of Parks's Death Knot. That before Parks obtained the assignment from Stevenson, (which was procured by Cockey,) or at the time of such assignment, it was agreed between Parks and Cockey, that as Parks was unable to pay the caution money on the certificate to be returned in virtue of the assignment, Cockey should pay the same, and should have, for such payment, 120 acres of the land, to be secured by the certificate; in consequence whereof Cockey did pay the caution money, and thereupon patent issued, as before stated, to Parks, and the bond of conveyance was given in pursuance of the agreement. That Parks, in his life-time, although he never made any conveyance in pursuance of the bond, always acknowledged the right of Cockey, and always was ready and disposed to make the conveyance. That Parks died about 10 years ago intestate, leaving [**3]  a son named William Parks, (one of the defendants,) of full age, his heir at law, who bath also at different times acknowledged the bond of conveyance, and the equitable right thereby created. That Cockey died some time in 1765, having first duly made his will, dated the 3d of December 1764, whereby, among other things, he devised as follows: "Item. I give and bequeath to my eldest daughter Penelope Deye Cockey, 100 acres of land, being part of a tract of land known by the name of Parks's Death Knot, lying in the county aforesaid, which said parcel of land I give and devise unto her and her heirs for ever;" and of the said will constituted and appointed Thomas Cockey Deye sole executor. That Joshua Cockey left the complainant, Thomas Deye Cockey, his eldest son and heir at law, then an infant under the age of 21 years, and also the other children mentioned in the will. And that after the death of Joshua Cockey, his executor proved his will, and took out letters thereon, and, among other papers of Joshua Cockey, came to the possession of the bond of conveyance, and kept the same in his possession until the 4th of February 1793, when he delivered it to the complainant, T. D. Cockey,  [**4]  as heir at law of J. Cockey. That Penelope Deye Cockey, afterwards intermarried with Thomas Gist, and she and her husband are two of the complainants in this cause. That Thomas Deye Cockey, one of the complainants, believing that the whole of the land intended to be secured by the bond of conveyance was meant to be devised to Penelope Deye Cockey, now Gist, by the will of Joshua Cockey, although only 100 acres are therein mentioned, did on the 17th of January 1794, execute a bond of conveyance, by which he bound himself to convey to her, in fee, all his right, title and interest, in the said land. That on the 19th of December 1789, Parks, the younger, sold and conveyed part of Parks's Death Knot to Job Huntt, (one of the defendants;) and that the land included, within the metes and bounds in that conveyance, is the south east part of the land intended to be secured by the bond of conveyance before mentioned; and that Huntt had full knowledge of the bond, and had seen and read it, and well knew the premises at the time of his purchase, and before the making of the conveyance to him. That on the 13th of March 1790, Parks, for the purpose of indemnifying and securing Huntt from all claims [**5]  against the land so conveyed to him, did by another deed convey to him in fee all the residue of Parks's Death Knot, with proviso that if Parks should indemnify him from all claims against the land first conveyed to Huntt, the last mentioned conveyance should be void. That on the 10th of April 1790, Parks, among the other lands, conveyed to Huntt in fee all the tract called Turkey Cock Alley, with an exception as to a small part thereof, and also all the tract called Parks's Death Knot, excepting 31 acres thereof before conveyed to Huntt by the deed first herein referred to, and also excepting 120 acres of that tract, for which the bond of conveyance was given. That Parks, the elder, at sundry times, and down to the time of his death, applied to Deye, as executor of Cockey, to pay various assessments and charges on the 120 acres of land in the bond of conveyance mentioned, alleging, that as the land belonged to the estate of Cockey, all charges thereon ought to be paid out of his estate; in consequence of which applications Deye, as executor of Cockey, paid all such assessments and charges as were exhibited to him by Parks, who acknowledged the bond of conveyance, and that the consideration [**6]  of the bond had been duly paid, and frequently offered to Deye to make him a conveyance of the land mentioned in the bond, as executor of Cockey, &c. That in the deed of conveyance last before referred to, Parks, the younger, and Huntt, (the defendants,) have both acknowledged the bond of conveyance, and an existing right under and in virtue of the same. That Huntt, in consequence of the conveyance to him from Parks, hath entered into and taken possession of the land therein mentioned. Prayer, that the defendants may be compelled to convey to the complainant, Penelope Deye Gist, in fee simple, or to such of the complainants as may be thereto entitled, the 120 acres of land by the bond of conveyance meant and intended to be conveyed; and for other and further relief, &c.

Exhibit, (among others.) The bond of conveyance from Parks and wife, to Joshua Cockey, dated the 14th of April 1764, in the penal sum of £  500, and conditioned as follows: "The condition of this obligation is such, that if the above bounden William Parks, and Eleanor his wife, and each and every of them, and each and every of their heirs, executors, administrators and assigns, do and shall, upon demand and at [**7]  the request, cost and charges, of the above named Joshua Cockey, his heirs or assigns, well and truly convey and assure, or cause to be conveyed and assured unto him, the said Joshua Cockey, his heirs and assigns, for ever, all the estate, right, title and interest, of them the said William Parks, and Eleanor his wife, and their heirs, and each and every of them, of, in and to, one hundred and twenty acres of land called Parks's Death Knot, situate, lying and being, in the county of Baltimore aforesaid, with the appurtenances thereunto belonging or appertaining, now in the possession or occupation of them the said William Parks, and Eleanor his wife, by such sufficient conveyances and assurances in the law, as by the said Joshua Cockey, his heirs or assigns, or his or their counsel learned in the law, shall advise and require; then the said obligation to be void and of none effect, or else to be and remain in full force and virtue in law."

The answers of the defendants stated, among other things which it is not material to notice, that they were totally ignorant for what consideration the land was to be conveyed, or what part of the land was intended to be conveyed; and they did [**8]  not know or admit that the southernmost or south easternmost parts was intended to be conveyed under the bond of conveyance. That Cockey, or any person claiming under him, never was in possession of any part of the land--nor did they ever hear at any time that Cockey was, by virtue of the contract, entitled to the southernmost or south easternmost part. That Penelope, one of the complainants, came of full age 15 years past or more, and T. D. Cockey, (one other of the complainants,) not less than 11 or 12 years past. That Parks, the grantor, and after his death, Parks, the son, were willing to comply with the bond of conveyance, and convey to Cockey, or to whomsoever was entitled under the bond, whatever land they were thereby entitled to have conveyed to them; but no person chose to come forward and receive a conveyance, or ascertain what part of the land he, she or they, were entitled to under the said contract. That on the 23d of October 1789, Parks, being desirous of selling the residue of the land to extricate himself from difficulties under which he then suffered, did advertise publicly in the Maryland Journal and Baltimore Advertiser, requesting any person who was entitled to [**9]  the benefit of the bond of conveyance to appear, prefer their claim, and receive a conveyance for the land they might be entitled to thereby. That T. D. Cockey and Penelope Deye Gist, were then both of full age, and that neither of them did apply to receive the conveyance, although thus called upon. That Parks was at that time under execution, and had no method of freeing himself therefrom but by a sale of some part of his lands. That he applied to Huntt, and proposed to sell him a part of his lands in order to raise money to free himself from the execution; and in consequence Huntt purchased from Parks the lands mentioned in the deed of the 19th of December 1789, which was then supposed to contain 31 acres, for which Huntt paid six dollars per acre. That the land being found to contain eight and a quarter acres more, he paid for the surplus on the 15th of March 1791. That Huntt was induced to purchase the particular part of the land described in that deed, because it lay adjoining to lands which he then owned; and the greatest part thereof actually ran in, and lay between, two tracts of land owned by him. That Huntt had seen and knew of the bond of conveyance which had been so executed [**10]  by Parks, the elder, to J. Cockey, and had advised with counsel as to the effect thereof, and it was by the advice of counsel that he made his purchase. That on the 10th of April 1790, Parks executed a deed to Huntt for the lands therein mentioned, which was intended to secure to Huntt the payment of £  88 3 6, then due to him, with interest. Huntt admitted, that on the 13th of March 1790, Parks executed in due form of law another conveyance to him, the object and intention of which was to secure and guarantee to him the lands first sold to him; that after deducting the lands so conveyed by Parks to Huntt by the first conveyance, there remained a greater quantity of Parks's Death Knot, than was contracted by the bond of conveyance to be conveyed to Cockey. That they were instructed, that after the length of time which had elapsed since the execution of the bond of conveyance, without the complainants either possessing the land so alleged to have been contracted to be sold to their father, or claiming an execution of the contract, the complainants were not, nor was either of them, entitled to the aid of this court specifically to execute the contract to the prejudice of Huntt, who is [**11]  a purchaser for a valuable and bona fide consideration; and they claimed the benefit of the laches of the complainants, and of those under whom they claimed, and of the length of time, as fully and to all intents and purposes as if they had pleaded the same, and relied thereon for their plea.

Testimony was taken and returned under a commission; and the lands were directed to be surveyed, and a plot thereof was returned.

KILTY, Chancellor, (July term 1806.) The chancellor is of opinion from the evidence, that the bond of conveyance was intended to secure 120 acres of the vacancy added on the proclamation warrant taken out by Edward Stevenson, and assigned to William Parks, on which a survey was made the 28th of February 1764, as appears by the certificate returned to the land office, being in the whole 127 acres. And also that it was intended to exclude the part added as the third vacancy, although the third vacancy is returned as containing only six acres. The first and second vacancy added are returned as containing, the one six, and the other 115 acres, making together 121 acres instead of 120, which it may be inferred from the evidence they were supposed to contain by [**12]  the parties to the bond. The complainant, Penelope Deye Gist, is therefore entitled under the will, and bond of conveyance from Thomas Deye Cockey, which are not contested, to a conveyance for that part of Parks's Death Knot, which is claimed by the bill. The part of Parks's Death Knot which was conveyed by the defendant William Parks, to the other defendant, Job Huntt, by the deed of the 19th of December 1789, was stated therein to contain 31 acres, and by the mortgage of the 13th of March 1790, the residue is also conveyed to him, thereby vesting in him the legal title in the whole. And inasmuch as Parks has an equitable title to the residue, and by joining in the conveyance for the part conveyed by him to Huntt will not be bound to make a general warranty, or be liable to any risk or loss thereby, it is considered that a joint deed will be the most proper to vest the legal title in the complainant, Penelope Deye Gist, according to the bonds--Decreed, that the defendants shall, by a good deed to be executed by them, and acknowledged and recorded according to law, give, grant, &c. to the complainant, Penelope Deye Gist, and her heirs, 120 acres of land called Parks's Death Knot, situate,  [**13]  &c. the said 120 acres being part of a tract of land resurveyed for William Parks, deceased, father of William Parks, one of the defendants, on the assignment of Edward Stevenson, on or about the 28th of February 1764, and patented to William Parks, deceased, on or about the 15th of March 1764; to be laid off as follows, to wit: To include the whole of the first vacancy described in the certificate of the resurvey, to begin at, &c. containing six acres; to include also the second vacancy described in the certificate of the resurvey, to begin, &c. containing 115 acres, except one acre thereof, which one acre is to be taken off by extending reversely the 16th line of the resurvey on Turkey Cock Alley, on which the proclamation warrant was taken out, &c. And all the estate, &c. of the defendants therein, and which was in William Parks, deceased, and all and singular the hereditaments and appurtenances to the same belonging, or in any manner appertaining. And upon the due execution, acknowledgment, and recording of the deed, the complainant, Penelope Deye Gist, her heirs and assigns, shall be entitled to hold the said land free, clear and discharged, from all claim of the defendants, or [**14]  either of them; the said conveyance being in satisfaction of the bonds in the proceedings mentioned. Decreed also, that the defendants, and each of them, deliver up to the complainants, Thomas Gist, and Penelope Deye Gist his wife, the quiet and peaceable possession of the land hereby decreed to be conveyed; and that they pay to the complainants the costs of this suit, &c. From this decree the defendants appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

W P, being seized of a tract of land called P D, containing 275 acres, executed a bond of conveyance to J C, conditioned that he would convey to him all his right, &c. "of, in and to, 120 acres of land called P D, situate, in the county of B, with the appurtenances thereunto belonging, or appertaining, now in the possession or occupation of the said W P." On a bill in chancery for a specific performance, &c. Held, that there being no designation of the 120 acres of land, nor any description whereby it could be identified and located, parol evidence is not admissible to show that it was intended by the parties that they were to be laid off at the southernmost part of the tract. That the bond is void for uncertainty, except on the principle of election, and that there was no evidence to prove that there was any election made by either of the parties anterior to the time of the execution of the deed from W P, for part of the tract described by metes and bounds, to one of the defendants who was a fair and bona fide purchaser of the land conveyed to him, without notice that there was any designation of the 120 acres. 

COUNSEL:
Martin and Brice, for the Appellants, referred to Co. Litt. 145. 2 Bac. Ab. tit. Election, (B) 443. Taylor vs. Stebbert, 2 Ves. jr. 437. Moor, 72, case 197. Hayward's case, 2 Coke, 36.

Johnson, (Attorney General,) and Winder, argued for the Appellees.  

JUDGES:
The cause was argued before CHASE, Ch. J., GANTT, and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*505]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that in the bond of conveyance from William Parks, senior, to Joshua Cockey, there being no designation of the 120 acres of land to be conveyed to Cockey, nor any description whereby the same could be identified and located, parol evidence is not admissible to show that it was intended by the parties that the [**15]  120 acres were to be laid off at the southernmost part of the tract of land called Parks's Death Knot. That the bond is void for uncertainty, except on the principle of election; and there is no evidence to prove that there was any election made by either of the parties, or their representatives, anterior to the time of the execution of the deed from William Parks, junior, to Job Huntt, on the 19th of December 1789. That Huntt was a fair and bona fide purchaser of the land conveyed to him by that deed, without notice that there was any designation of the 120 acres to be conveyed in virtue of the bond of conveyance to Cockey, or his heirs. That Penelope Deye Gist is entitled to a conveyance of 120 acres of land, part of the 222 acres of vacancy secured by the proclamation warrant taken out by Edward Stevenson, and assigned to Parks, the elder. Decreed, that the decree of the court of chancery be reversed, with costs to the appellants, and that the appellants, by a sufficient deed or deeds, convey to Penelope Deye Gist, one of the appellees, and her heirs, 120 acres of the vacancy of 222 acres, to be laid off together in one body, if practicable,  [**16]  if not, so as to be most convenient, exclusive of the land conveyed to Huntt by Parks, the younger, by the deed of the 19th of December 1789, 

 [*506]  and exclusive of the land conveyed by Parks to Arabella Worrell. That the court of chancery make all necessary orders, and take measures for having this decree carried into full and complete effect.
DECREE REVERSED, &c.  

14 of 28 DOCUMENTS 

HOWARD vs. MOALE, et al. Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 249; 1808 Md. LEXIS 5 

June, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. The appellee, on the 5th of May 1801, instituted his action of ejectment for a tract of land called David's Fancy, situate in Baltimore county, into forty-eight separate parts, to be divided, nine parts of which were demised by John Moale, nine parts by Richard H. Moale, nine parts by Robert North Moale, nine parts by Samuel Moale, nine parts by Randle Hulse Moale, one part by Thomas Moale, one part by Richard Curson, Junior, and one other part by Rebecca Russell. The defendant, (now appellant,) pleaded not guilty, and took defence on the plots made and returned in the cause.

The plaintiff, at the trial court, in May 1804, made his claim and pretensions for a tract of land called David's Fancy, resurveyed for John Moale, on the 1st day of November 1738, as the same is located by him, the plaintiff, upon the plots returned in the cause, as per table of courses No. 2, viz. From the letter A, (1) N. 86 3/4, E. 65 perches, (2) N. 41 3/4, E. 235 perches to b, (3) N. 25 3/4, W. 86 perches to V, (4) N. 86, W. 112 1/2 perches to F, (5) S. 51, W. 14, (6) S. 24, W. 5, (7) S. 67, W. 12, (8) S. 10 1/2 W. 40, (9) S. 70, W. 4, (10) S. 47, W. 6, (11) S. 36 1/2, W.  [**2]  16, (12) S. 54, W. 21, (13) S. 75, W. 8, (14) S. 18 1/2 W. 14, (15) S. 71, W. 14, (16) S. 35, W. 14, (17) S. 89, W. 10, (18) S. 28, W. 14, (19) S. 8, W. 18, (20) S. 10 1/2, E. 18, (21) S. 65, E. 18, (22) S. 14 3/4, E. 38, (23) S. 40 1/2, E. 23, (24) S. 7, W. 31, (25) thence to the beginning, containing 257 acres. The defendant took defence for all that part of Lun's Lot, granted to Edward Lun on the 20th of July 1673, beginning at red A on the plots, and running with the black drawn lines, red figures 1, 2, 3, 4, 5, 6, 7, 8, 9, then with the blue shaded line to P, then with the black drawn line to 4, then with the red broken dotted line to V, then to red 1, then with the black lines, black figures 19, 20, red figures 14, 15, 16, 17, 18, 19, and then to red A, as per table of courses No. 26. Judgment was entered against the casual ejector for the land called David's Fancy, undefended on the plots by the defendant. After the jury were sworn by the issue, the plaintiff, by his attorneys, suggested, that since the demises in the declaration, and the institution of this suit, and before then, &c. to wit, on, &c. Richard H. Moale, one of the lessors in the declaration mentioned, who demised [**3]  nine parts of the premises, (in forty-eight parts to be divided,) to the plaintiff, had died, and which was not denied.

1. The first bill of exceptions. The plaintiff, to make title to the tract called David's Fancy, read in evidence a certificate of survey of David's Fancy made for David Williams on the 22d of June 1671, and containing 100 acres, which certificate recites, that by virtue of a warrant granted unto Robert Wilson for 650 acres, bearing date the 17th of June 1671, 100 acres thereof was assigned unto David Williams, by Wilson, there was, therefore, laid out for Williams "a parcel of land called David's Fancy, lying in Baltimore county, on the N. side of Patapsco river, and on a branch called the Middle Branch, beginning at a bounded locust tree, being the N. E. bounded tree of David Poole's land a, and running by the land of the said Poole E. 65 perches, to a bounded oak, then N. E. 150 perches to a bounded red oak of the said Poole's land, then N. N. W. 86 perches to a bounded red oak, then S. W. to the head of Howard's Branch, then bounding on the said branch, and the said Middle Branch, to the first bounded tree, containing and laid out for 100 acres more or less.  [**4]  " The plaintiff also offered in evidence a patent for the land called David's Fancy, granted to Williams on the 1st of May 1672. The courses, &c. in the patent corresponding with those in the certificate, except in the patent the S. W. course, last above mentioned, is described to run "S. W. and by W. to the head of Howard's Branch," &c. He also offered evidence, that Williams departed this life, intestate, and without heirs. He also produced and read to the jury, a warrant of escheat issued to John Moale, setting forth that there was escheat to the Lord Proprietary, a tract of land called David's Fancy, lying in Baltimore county, on the W. side of the Middle Branch, originally granted on the 1st of May 1672, to David Williams, for 100 acres. That on the 13th of March 1722, a certain Thomas Cromwell, by his petition, setting forth that he was seized in fee thereof, obtained a special warrant to resurvey it, and a certificate thereof was returned, by which it appeared that there were 83 acres of surplus land included, for which Cromwell never compounded nor sued out grant of confirmation thereon, contrary to sundry of his Lordship's proclamations for that purpose published. That apprehending [**5]  his Lordship's rights had not been complied with, Moale, on the 14th of April 1737, obtained a special warrant to resurvey the said tract in order to have the benefit of the surplus, and the contiguous vacancy, if any. That since, upon the strict search made both in the records of the provincial court and county court of the county where the land lay, as also in the records of the commissary's office, he could not find any conveyance from Williams to one John Athrine, who had pretended a right to the land, nor to any other person, nor that ever he willed the same to any person whatsoever; by which means, Moale was advised that the land had become escheat to his Lordship; and he, being the first discoverer, and desirous to purchase his Lordship's right thereof, be it escheat by the means aforesaid, or by any other ways or means whatsoever, prayed a special warrant to resurvey the same, &c. which was granted, &c. and the surveyor was directed carefully to resurvey, for and in the name of Moale, the tract of escheat land called David's Fancy, according to its ancient metes and bounds, with its surplusage, and by his outlines adding what vacant land he could find to the same contiguous,  [**6]  whether cultivated or otherwise, not running his lines, &c. He also offered evidence, that the warrant, not having been executed in time, was, on the 17th of May 1738, renewed for six months longer. That in virtue of the last mentioned warrant, a certificate of survey was returned, dated the 1st of November 1738, by which it appears, that there was resurveyed for and in the name of Moale, the tract of land called David's Fancy, with its surplusage, according to the ancient metes and bounds thereof, as shown to the surveyor, lying in the county aforesaid, on the E. side of the middle branch of Patapsco river, beginning at a locust now bounded at or very near to the place where stood a bounded locust, the original beginning tree of David's Fancy, and a bounded tree of a tract of land called Upton Court, formerly laid out for David Poole, and running thence, with the said land, E. 65 perches, (it being expressed in the certificate of the original survey to run by the land of the said Poole, E. 65 perches to a bounded oak, which cannot be found,) thence N. E. 238 perches, still bounding on the said land to the N. W. branch of Patapsco river, it being therein expressed, to run N. E. 150 [**7]  perches to a bounded red oak of the said Poole's land, and the certificate of the said Poole's land mentioning to run that course to a bounded red oak, standing by the side of the said N. W. branch, which oak is not known, thence N. N. W. 86 perches, S. 83 [degree] 30' W. 133 perches, to the head of Howard's Branch, it being expressed to run S. W. to the head of Howard's Branch, thence bounding on the said branch, and the aforesaid Middle Branch, to the first bounded tree, as mentioned in the certificate of the original survey, as follows, viz. S. by W. 16 ps. S. 41, E. 16 ps. N. 83, W. 24 ps. S. W. 40 ps. N. 73, W. 10 ps. S. 22, W. 24 ps. W. 9 ps. S. 30, W. 12 ps. N. 74, W. 10 ps. still bounding on Howard's Branch to the Middle Branch, thence S. 38, W. 16 ps. S. 11, W. 15 ps. S. 2, E. 12 ps. S. 12, E. 12 ps. S. 70, E. 12 ps. S. 12, E. 38 ps. S. 37, E. 28 ps. still bounding on the Middle Branch, and thence by a straight line, bounding on the branch, to the beginning, containing and laid out for 257 acres more or less, to be held," &c. "by the name of David's Fancy." He also read in evidence the grant issued thereon to Richard Moale, dated the 29th of September 1750, which grant recites,  [**8]  that Charles Croxall, (guardian and next friend to Richard Moale, an infant, under the age of twenty-one years,) did set forth, that a certain John Moale, deceased, father to Richard, did heretofore set forth that there was escheat, &c. (as in the recital in the special warrant granted to John Moale,) that a warrant issued, was renewed, and a resurvey made, and certificate thereof returned, by which it appeared, &c. That before John Moale obtained a grant of confirmation for the same, he died, but before his death he made his last will and testament, in which was the following bequest: "Item. I give and bequeath unto my infant son, to be christened by the name of Richard, all that tract of land I bought of Jacob Giles, named Upton Court, and also the land adjoining thereto, which I escheated and paid his Lordship's agent for, as per the receipt on the back of the certificate now in the office, the patent not yet being issued out, to him my said beloved infant son, and his heirs lawfully begotten, from him and their bodies, for evermore; but if either of my aforesaid sons should die without such heirs aforesaid, then it is my will, that the land which I have herein devised the dead [**9]  son, heir less, shall go to the living son, to be held of him, and his lawful heirs, from generation to generation as aforesaid." Croxall, therefore, prayed, that for as much as the right of the escheat land was in Richard Moale, and all requisites complied with, grant of confirmation might issue to him on the certificate, agreeably to the bequest aforesaid, &c. Therefore, in consideration thereof, and other the premises, &c. the "Lord proprietary did give, grant and confirm, unto him, "the said Richard Moale, and the heirs of his body lawfully" begotten, for ever, agreeably to the bequest aforesaid, "all that the aforesaid tract or parcel of escheat land resurveyed," and still called David's Fancy lying," &c. as described in the certificate herein before mentioned--"To "have and hold the same unto him the said Richard Moale, "and the heirs of his body lawfully begotten, for ever; to be "holden, of" &c. He also read in evidence the last will and testament of John Moale, for whom the certificate of survey was made and returned, dated the 14th of January 1739-40. Whereby he devised to his son John, to him and his heirs lawfully begotten from his and their bodies, for ever more, sundry [**10]  parcels of land; and he also devised to his infant son, to be christened by the name of Richard, the lands mentioned in, and in the manner set forth in the grant last before mentioned. He also read in evidence a deed of indenture dated the 11th of April 1783, from Richard Moale to James Croxall, reciting that Moale was seized of an estate, in fee tail, in and of a tract of land called David's Fancy, (saving and excepting that part thereof before conveyed by him to Mary Tribolet,) lying, &c. and it was the intent, meaning and design of Moale, according to the act of assembly, &c. fully and effectually to bar, dock and destroy the entail, and to grant, convey and transfer to Croxall, and his heirs, absolutely and fully, the said tract of land, (saving and excepting as aforesaid,) with the appurtenances thereunto belonging, in order, and with the intent, and for the purpose, that Croxall, on his becoming thereby seized thereof in fee simple, might reconvey and assure unto Moale, and his heirs, the tract of land, &c. in consequence and on the operation whereof, Moale might be and stand seized of, and be entitled unto, the premises, fully and absolutely, in fee simple. The indenture, therefore,  [**11]  witnessed, that Moale, in consideration of the premises, and also for and in consideration of the sum of five shillings, &c. granted, &c. unto Croxall, the tract of land, (saving and excepting as aforesaid,) in the usual form. He also read in evidence a deed of indenture, dated the 12th of April 1783, from James Croxall to Richard Moale, for the tract called David's Fancy, excepting that part sold by Moale to Mary Tribolet b. He also offered in evidence, that Richard Moale died sometime in the year 1786, without issue of his body lawfully begotten, having first duly made and executed his last will and testament in writing, dated the 22d of February 1786, whereby he devised all that part of the tract of land called David's Fancy, for which this suit is brought, to his brother John Moale, in fee simple. That John Moale, the devisor first named, left, at the time of his death, two sons, to wit, John Moale, his eldest son and heir at law, and Richard Moale, the patentee before named. That John Moale, the devisee last named, died in the year 1797, having first duly made his last will and testament, dated the 20th of July 1797, whereby he devised all that part of David's Fancy, for which [**12]  this suit is brought, to his sons John Moale, Richard Moale, Robert North Moale, Samuel Moale, George Washington Moale, and Randle Hulse Moale, their heirs and assigns, to be equally divided between them, share and share alike, as tenants in common. He also gave in evidence, that George Washington Moale, the devisee mentioned in the last mentioned will of John Moale the younger, died after his father John Moale, in the year 1797, intestate, unmarried, and without a child. That the lessors of the plaintiff, to wit, John Moale, Richard H. Moale, Robert North Moale, Samuel Moale, Randle Hulse Moale, Thomas Moale, Rebecca Russell, and Elizabeth, wife to Richard Curson, in the declaration mentioned, are the children and the only children, of John Moale, the last named devisor; that Richard Moale, one of the lessors of the plaintiff, died since the bringing of this suit, and during the pendency thereof, leaving issue now in full life. He also offered evidence, that the true location of the land called David's Fancy, granted to David Williams in 1672, is, as he hath located the same upon the plots returned in this cause; and also that the true location of the land called David's Fancy, granted [**13]  to Richard Moale in 1750, for the recovery of which this suit is brought, is the same as that of David's Fancy, the original, granted to David Williams in 1672, as located by the plaintiff on the said plots. The defendant then read in evidence the certificate of survey, dated the 10th of October 1672, and grant of Lun's Lott, to Edward Lun, bearing date on the 20th of July 1673, whereby it appears that there was surveyed "a parcel of land lying in Baltimore county, on the N side of Patapsco river, and on a branch called the N W Branch, called Lun's Lott, beginning at a bounded hickory standing on the W side of the falls of the N W branch, and in the line of the land of Thomas Perte and Robert Benjor, called Salisbury Plaine, and running with the line of the said land N W and by N 38 ps. to a bounded hickory in the line of the said land, then S W 165 ps. to a bounded red oak, then S 40 ps. then W N W 45 ps. to a bounded hickory by the head of a branch, then S 125 ps. to a bounded red oak, then W and by S 20 ps. then S and by E 40 ps. then S E 80 ps. to a bounded Spanish oak, then S 60 ps. to a bounded white oak in the land of John Howard, called Timber Neck, then by the said land E [**14]  S E 74 ps. to a bounded white oak of the said Howard's land, then S E 120 ps. to a bounded red oak standing in a bite of the N W branch, then bounding on the said branch lying up N 50 ps. to a bounded red oak, then N N W 38 ps. then W N W 100 ps. then N and by W 50 ps. to a locust marked with four notches, then N N E 45 ps. to a bounded red oak in the line of the land of Thomas Cole, then W 75 ps. to a bounded oak of the said Cole's land, then by the said land N N E 275 ps. to another bounded oak, then E 65 ps. to the falls, then bounding on the said falls to the first bounded tree, containing 200 acres, more or less," &c. He also read in evidence the certificate of survey, dated the 8th of April 1762, and grant of Lun's Lott Enlarged, dated the 25th of March 1763, surveyed for and granted to Cornelius Howard, and Ruth his wife, and containing 414 acres, more or less, being in virtue of a special warrant to resurvey a tract of land called Lun's Lott; and also proved, that Lun's Lott and Lun's Lott Enlarged, are truly located on the plots returned in this cause. He also offered evidence to prove, that he is heir at law to Edward Lun, the patentee of Lun's Lott, and also the heir at [**15]  law of Cornelius Howard, and Ruth his wife, the patentees of Lun's Lott Enlarged. The defendant then prayed the opinion of the court, and their direction to the jury, that the plaintiff, upon the above statement of facts, hath not made title to the lands for which the defendant hath taken defence in this cause, nor any part thereof, and cannot recover in this action.

a Called "Upton Court."

b The defendant's attorneys, at this stage of the trial, made their objections to the grant to Richard Moale; but as the bill of exceptions contained the whole evidence of title adduced by the parties, we have adopted the mode pursued in the bill of exceptions.

DONE, J. delivered the opinion of the court. c. The court are of opinion, that no interest of the nature of a trust estate ever was vested, either in the proprietary of Maryland, or in the state of Maryland in place of the proprietary. There does not appear ever to have been any act done which could create a trust in either; and that the proprietary and the state could only be considered as parties having a reversionary interest expectant on the determination of an estate tail.

c Chase, Ch. J. did not sit, his sister being interested in the land in question. [**16]  

The jura regalia, as attached to the person of the king in England, never did attach to the lord proprietary of Maryland.

The lord proprietary held the dominion and property of the soil, which he could sell and dispose of in the same manner as any other person, and subject to the same beneficiary legal and equitable rights, as in the hands of any other person; and on an equitable interest being obtained, agreeably to the rules of his land office, by any person taking out a warrant, returning a certificate of survey, and paying the composition money, the party became entitled to a grant which he could compel from the proprietary.

In the present case, suppose the right of the proprietary to have continued in full force until the year 1783, his reversionary interest in the lands in question would have been destroyed by the deed made by Richard Moale, the grantee in tail, under the operation of the act of 1782, as effectually as the reversionary right of any citizen of Maryland.

The question then occurs, whether the case is materially altered by the proprietary's rights passing into the hands of the state?

On this view of the subject, a doubt might arise, whether [**17]  the state, being vested with the sovereignty as a body politic, can be affected by any laws in which she is not specially named. But this difficulty, in the opinion of the court, is removed, when we consider the state as standing in the place of the proprietary, in which view, and no other, we think the state can be considered in this case, as having no beneficiary interest in the lands in question, but holding the proprietary's reversionary interest merely by substitution in his place, and for the use and benefit of those who had the right in virtue of the escheat and purchase from the proprietary.

By the last will of John Moale, the elder, his interest in the lands passed agreeably to the disposition made by the said will, and the deed, made in 1783, by Richard Moale, the devisee, and the patentee of the land, was competent to bar and extinguish the reversionary interest of the state.

As these points have been elaborately and ingeniously argued by the learned counsel concerned, the court have thought proper thus shortly to notice them, and express their ideas relative to them.

But let us suppose that the opinion of the court, so far, is not well founded, every objection [**18]  to the plaintiff's title, arising from any particular prerogatives or privileges in the proprietary or the state, which would protect their rights from being affected in the same manner as those of citizens, is, in the opinion of the court, completely removed by the operation of the grant of Lun's Lot Enlarged.

The escheat and grant of the proprietary thereon will relate back to the original grant of David's Fancy, and there is no ground on which to presume that the escheat fell previously to the grant of Lun's Lot, the original, but on the contrary the presumption is strong that it did not occur until nearly about the time of the obtention of the escheat warrant.

By the grant of Lun's Lot Enlarged, all the reversionary interest of the proprietary in David's Fancy, so far as Lun's Lot Enlarged interferes with and includes any part of David's Fancy, passes to a citizen, and of course is liable to be operated upon, and barred, in virtue of the act of assembly of 1782, by the deed from Moale to Croxall in 1783.

For these reasons the court refuse to give the opinion and direction to the jury, which is prayed by the defendant's counsel. The defendant excepted, d

d D. Dulany, Esquire's opinion on the following case stated. A. was seized of a certain tract of land, under a title derived legally from the original grantee. B obtained a common warrant of survey, and under this warrant, a survey was made, which included part of the land that had before been granted to A, and B, on the certificate returned by the surveyor, obtained a patent. Afterwards A, who was seized as aforesaid, died without heirs, and without having conveyed, or disposed of his title, in consequence whereof the land, of which A died seized, became escheat. Afterwards C obtained a warrant on the escheat, and as a part of the land, whereof A died seized, was included in the survey of the grant to B, the query is, whether B is entitled to the part so included, or C, who claims under the escheat? I am of opinion that B is not entitled to any part of the land under the common warrant that he obtained, which he was not entitled to when he obtained thereon a patent, and as at the time when the patent was obtained by B, the title was in A under a prior grant, I am of opinion that B cannot legally claim any title to the part included in the patent to A.

Daniel Dulany.

August 13, 1783. [**19]  

2. The second bill of exceptions. The plaintiff then read in evidence a certificate of the survey of a tract of land called Upton Court, made for George Yate on the 12th of March 1667, and a grant thereon issued to David Poole on the 2d of August 1668, by which it appears that there was surveyed "a parcel of land called Upton Court, lying in Baltimore county, on the N side of Patapsco river, opposite the land of Hugh Kinsey, beginning at a bounded red oak standing on the southernmost side of a point of land formerly called Whetstone Point, and from the said oak bounding on the said river by a line drawn N W and by N 40 perches, then N W and by W 40 perches, and from the end of the N W and by W line by a line drawn W 100 perches, bounded on the W by a line drawn W N W 30 perches, then N W 100 perches, to a small creek, then over the said creek by a line drawn W and by S 30 perches, then W S W 45 perches, then S W 80 perches to the mouth of another small creek, then over the said creek S and by W 45 perches, then S W and by S 55 perches to a point which maketh the mouth of a branch called the Middle Branch, then bounding on the said branch by a line drawn N W and by N 180 perches [**20]  to a marked oak opposite a small island, and from the said oak N E 50 perches to a small branch which maketh the outward narrows of the said land, then E 65 perches, bounded on the E by a line drawn N E 150 perches to a bounded red oak standing by the N W branch, then E S E 56 perches, then E N E 120 perches, then E S E 44 perches, then S S E 100 perches to a small cove, then over the said cove by a line drawn S E 100 perches, to a point called The Sandy Point, then S S E 48 perches to another marked oak on Whetstone Point, and from the said oak to the first bounded tree, containing 500 acres of land more or less." He also gave in evidence the plots and locations in this cause, and the admission of the plaintiff and defendant, that the eleventh line of Upton Court terminated at the letter black H on the plots. He also gave in evidence, that the twelfth line of Upton Court terminated at the black letter A on the plots; and further gave in evidence to the jury that the beginning of David's Fancy, the original, was at the letter A; and also that the beginning of David's Fancy, the escheat in 1738, was at the letter A. The plaintiff then prayed the opinion of the court, and their direction [**21]  to the jury, that if they find from the evidence in the cause that the twelfth line of Upton Court terminated at the letter A, and that the beginning of David's Fancy, the original, and David's Fancy, the escheat, was at the same place, that then the escheat certificate and patent of David's Fancy, granted to Richard Moale in 1750, do by operation of law relate to the original tract called David's Fancy, patented in 1672; and that the expressions in the escheat grant contained, do, by operation of law, bind the escheat land to run with the true location of the original tract of David's Fancy, as to the two first lines thereof, so far as the said lines extend; and that the first and second lines of the original David's Fancy, do by virtue of the expressions therein used, bind the said lines to run with the 13th and 14th lines of Upton Court.

DONE, J. delivered the opinion of the court. Three propositions have been stated by the prayer of the plaintiff's counsel, for the opinion of the court, and their direction to the jury.

1st. That the escheat certificate and patent of David's Fancy, granted to Richard Moale in 1750, do by operation of law relate to the original tract called [**22]  David's Fancy.

2dly. That the expressions in the said escheat grant contained do, by operation of law, bind the said escheat land to the true location of the original tract called David's Fancy, as to the two first lines thereof; and

3dly. That the first and second lines of the original tract called David's Fancy do, by virtue of the expressions therein used, bind the said lines on the 13th and 14th lines of Upton Court.

On the first point, the court are of opinion that the escheat certificate and patent of David's Fancy do, by operation of law, relate to the original tract called David's Fancy. That this is a case strictly within the principle and rule of law, of relation between grants and certificates, which have been adopted and ratified by solemn decisions of the general court and court of appeals, and that in law, reason or equity, there can be no distinction.

With respect to the second and third points proposed, it has been contended by the defendant's counsel, that the court are precluded from acting upon them, by the decision of the court of appeals in the case of Dorsey's Lessee vs. Hammond, and that by the rule laid down by that decision, these are to [**23]  be considered as questions of location, and must be left to the determination of the jury.

This court, let their private opinions be as they may, will always cautiously avoid interfering or clashing with the judicial decisions of the superior court, and will at all times pay respect to them as the established law of the land.

Whether too large a latitude is given to juries as to the construction of grants by the decision of the court of appeals in Dorsey vs. Hammond, and how far the rule and principle thereby adopted may operate to preclude uncertainty of decision, is not for us to consider.

The question then arises, whether the court are precluded by that determination from giving their opinion on the question now before them? and we think that we are not so precluded; but that the present question rests on grounds and principles entirely distinct from that case, and Helms vs. Howard, which has been cited to the court.

In Dorsey's Lessee vs. Hammond, the question was, whether the binding call in one course would be extended to the subsequent courses? the first using imperative binding expressions, which were dropped in those succeeding, then there were distinct [**24]  courses, either of which might be pursued, and one of which must be rejected; and the court of appeals were of opinion, that this was a description with a double aspect; that it was ambiguous and doubtful, and that therefore it was discretionary which set of courses should be pursued, and ought to be left to the jury as a question of location.

The opinion of the judges in Helm's vs. Howard is founded on the same principle. In that case all the expressions could not be gratified; there were two distinct and different courses, one of which must be pursued, and the other rejected. Therefore, the court said, it must be left to the jury as a matter of location, to determine which must be adopted, and which rejected.

In the present case the court are of opinion, that no such doubt or ambiguity appears. Abstractly considered the expressions are unquestionably binding, and the court of appeals have so far concurred with this court as to say, that we are competent to determine where expressions are imperatively binding by particular calls.

The court will not interfere with the right of the jury, by assuming any facts, nor will they take upon them to determine what is the true [**25]  location of the several tracts of land delineated on the plots, or any of them, or the extent or termination of their lines. We will not take upon us to say, whether the tract called David's Fancy, as located by the plaintiff, begins at the right point, or whether there is or is not evidence to the jury of the existence of a tree at the termination of the first line of that tract, which would vary the course, or make it longer or shorter than the thirteenth line of Upton Court. But the court think, that they are not restricted by the decision in Dorsey and Hammond, from giving their opinion hypothetically in the present case, (which they believe to be strictly within the rule established in Dorsey & Hammond,) that if the jury should be satisfied from the evidence, that the beginning of David's Fancy is rightly located on the plots by the plaintiff, at the termination of the twelfth line of Upton Court, and there is no evidence to them of the existence of any tree as called for in the grant at the termination of the first line of David's Fancy, which would vary the same from the course or distance of the thirteenth line of Upton Court, that then the expressions contained in the escheat [**26]  grant do, by operation of law, bind the said escheat land to the true location of the original tract called David's Fancy, as to the two first lines thereof, so far as the jury shall believe that the second line of David's Fancy, the original, did actually extend; and that the first and second lines of the original tract called David's Fancy do, by virtue of the expressions therein used, bind the said lines on the thirteenth and fourteenth lines of Upton Court. Which opinion and direction the court do accordingly give to the jury. The defendant excepted.

3. The defendant then prayed the opinion of the court, and their direction to the jury, that as the plaintiff hath in this cause located the land called David's Fancy, surveyed for John Moale on the 1st of November 1738, different from the land called David's Fancy, surveyed for David Williams on the 22d of June 1671, and hath not on the plots located those lands in the same way, the plaintiff shall not be permitted to give any evidence to the jury, that the two tracts of land have the same location; and that the plaintiff is concluded by the location he hath given on the plots of the tract of land called David's Fancy, surveyed [**27]  for John Moale. He further prayed the opinion of the court, and their direction to the jury, that as the plaintiff hath in this cause located the two first lines of David's Fancy, surveyed for John Moale the 1st of November 1738, running from the black letter A, then with the black broken and dotted lines No. 1 and No. 2, to the black letter b, and hath given no other location thereof on the plots, the plaintiff is not permitted to give in evidence any other location of the two first lines of that tract; but that the plaintiff is precluded from setting up under the plots in this cause any other location of the two first lines.

DONE, J. delivered the opinion of the court. The court are of opinion, that as the plaintiff has not located his pretensions co-extensive with the location of David's Fancy, the original, surveyed in 1671, he cannot be permitted to give evidence to the jury to extend his pretensions beyond the lines and limits which he has given to the tract of land called David's Fancy, under the escheat grant to John Moale in 1738, but is estopped by that location from going beyond the black letter V, from whence he must run to the head of Howard's Branch, at whatever [**28]  point the jury may find the same to be agreeably to the plaintiff's location of his pretensions, and the location by which the defendant has taken defence.

The court are further of opinion, that the plaintiff shall not be permitted to give any evidence of the two first lines of David's Fancy, surveyed for John Moale the 1st of November 1738, running otherwise than as they are located from the black letter A on the plots, with the black broken and dotted lines No 1 and No. 2, to the black letter b, as the location of his pretensions; but that the plaintiff is not precluded from giving evidence of any other lines as the two first lines of David's Fancy, the original, by way of illustration; and that the plaintiff may support the location of his pretensions, so far as he can show that the same are located within the limits of the original tract of land called David's Fancy.

4. The Plaintiff then prayed the opinion of the court, and their direction to the jury, that from the place where the jury find the termination of the second line of David's Fancy, the original, the third line thereof must run the number of perches expressed in the grant, and cannot, in its length, be increased [**29]  or diminished, unless proof is made of the tree called for, or the place where it stood.

DONE, J. The court direct the jury according to the plaintiff's prayer.

5. The plaintiff then prayed the opinion of the court, and their direction to the jury, that from the place where the jury find the termination of the third line of David's Fancy, the original, they are competent to run the fourth line thereof to the head of the branch called for at the letter r, the gum tree, or at black letter F, or at any point between; and that the plaintiff is competent to recover so far as his pretensions are included within the lines of David's Fancy, the original, as found by the jury.

DONE, J. The Court do not think the last prayer is embraced within the decision of the court already given.

The Court are of opinion, that the fourth line of David's Fancy, the original, must run from the place where the jury shall find the termination of the third line, a straight: line to the head of the branch. That the course in the certificate, and the course located, is but one line.

6. The third bill of exceptions. The defendant produced and swore Zachariah Maccubbin, as a witness to the [**30]  jury, to prove, and who did prove, that Richard Moale, under whom the lessors of the plaintiff make title, and John Eager Howard, the defendant in this cause, employed Maccubbin to run the tract of land called David's Fancy, that they both attended at times during the survey, and that on said running, the fourth line of the land was run course and distance, by and with the leased lands of Moale, to a point on Howard's Branch, to or near a gum tree located on the present plots returned in this cause at the little letter r, at the instance of Moale, in order to show the true location of that line. The plaintiff then produced to Maccubbin a plot of the land called David's Fancy, and proved by him that the said plot was the one which he made out for Moale, on the running so made; that the same now produced was the original plot, by the witness made out for, and at the instance of Moale. He further proved, that the lines on this plot are actually located on the plots in this cause made; and further proved by Maccubbin, that after the same running he also made out a plot for the defendant. He then offered to read in evidence the plot so made out by Maccubbin for Moale. The defendant further [**31]  proved by Maccubbin, that the corrected lines on the plot were never run on the ground, and that the plot was made out after the survey, at the instance and direction of Moale, and that the corrected lines of the plot were drawn upon the plot at the sole direction of Moale, without the knowledge, and in the absence of the defendant. Maccubbin further proved, that he has no recollection whether he did or did not run any of the lines of Upton Court, which are laid down on the plot, and that the whole plot, and all the explanations, were made in the office of Maccubbin, in the absence of the defendant; and that Moale, during the time he was employed in making the plot and explanations, frequently was present, and gave him directions about the work. Maccubbin further proved, that the four lines terminating at black letter C, were never run on the ground, and that those lines never were laid down on the plot by the direction or with the know ledge of the defendant, or in his presence; but that the waters and branches, designated on the plot, were made by actual survey. The defendant then objected to the reading the plot and explanations to the jury.

DONE, J. The court are of opinion,  [**32]  that as evidence has been given by the defendant of the runnings of the land, it is proper that the plot should go to the jury, for them to judge of the effect of it in the present question.

The court do not say whether it would have been evidence originally had it been offered, but as the defendant had offered evidence by the witness, who made the survey, to show Richard Moale did not claim, it is proper the plot should go to the jury.

The court are therefore of opinion, that the plot and explanations are admissible evidence in the cause, and they are permitted to be given in evidence to the jury. They were accordingly given in evidence to the jury. The defendant excepted.

7. The defendant then prayed the opinion of the court, and their direction to the jury. That the twelfth line of Upton Court must run as nearly as possible according to the course and distance thereof, as expressed in the original certificate and patent of that tract, so as to strike the branch called for at the end of that line.

DONE, J. The Court are of opinion, and so direct the jury, that the course and distance in a certificate or grant must always be controlled by a call expressed in the [**33]  same; and that in this case the course and distance must be complied with, as nearly as they can, to strike the branch described to be at the end of the twelfth line of the tract of land called Upton Court, as the jury may believe the said branch to have existed at the time of the survey of the said land; subject also to the opinion of the jury as to the variation of the compass on the said line.

8. The fourth bill of exceptions. The plaintiff then read in evidence, the certificate of a tract of land called Oliver's Range, made on the 26th of January 1722-3, for Thomas Cromwell, in virtue of a special warrant of resurvey to him granted, to resurvey the tract called David's Fancy, granted to David Williams on the 1st of May 1672, for 100 acres; whereby was resurveyed for Cromwell, the said land, with contiguous vacancy added, &c. "lying on the N side of Patapsco river, and on the W side of the Middle Branch, beginning at a bounded locust stump standing near the said branch, said stump being a boundary of a parcel of land called Upton Court, and running thence with said land E 65 perches, still with said land N E 230 perches, to the N W branch, then N N W 86 perches, thence S W [**34]  by W 70 perches, thence W N W 34 perches, to a bounded white oak of John Howard's land, called Timber Neck, standing in a small fork descending into the head of Howard's Branch, thence with the said land S W by W 34 perches, to the head of Howard's branch, thence bounding on the said branch S by W 70 perches, still with said branch S 27 [degree] W 60 perches, still with said branch S 56 [degree] W 70 perches, still with said branch S 50 [degree] W 60 perches to the Middle Branch, thence S 20 [degree] E 30 perches, thence with a straight line to the said locust stump, containing 183 acres of land more or less," &c. He also offered evidence of ancient runnings of the tract called Upton Court, by which the fourteenth line thereof was run and extended to the N W branch of Patapsco river, and that no land has ever been taken up southward of the black letter b, and below the red letter L, except what has been held and possessed under the tract called Upton Court, or the land called David's Fancy. The defendant then prayed the opinion of the court, and their direction to the jury, that the second line of David's Fancy surveyed for David Williams on the 22d of June 1671, must be terminated [**35]  at the end of the 150 perches from the beginning, from whence the third line of that tract must run according to its course and distance, as expressed in the original certificate and patent thereof, and the fourth line from the end of the third line, to the head of Howard's branch.

DONE, J. This court are bound by the decision in Dorsey's Lessee vs. Hammond, which must govern in deciding upon the prayer now submitted. The court are of opinion, that the termination of the second line of David's Fancy, surveyed for David Williams on the 22d of June 1671, is a matter of fact to be left to the determination of the jury, on the evidence given to them in the cause. The court therefore refuse to give the opinion and direction prayed for by the defendant's counsel. The defendant excepted.

9. The fifth bill of exceptions. The plaintiff then gave in evidence, that the twelfth line of Upton Court terminated at the letter black A, on the plots; that the original tract of land in 1672, called David's Fancy, began at the letter black A; that the certificate of Oliver's Range began at the letter black A; and that the escheat land called David's Fancy, in 1750, granted to Richard Moale,  [**36]  began at the letter black A. And further gave evidence to the jury, that the land on each side of the two lines proceeding from the letter black A on the plots, and running down to the N W branch of Patapsco river, has been always held, claimed and considered, as Upton Court and David's Fancy, and that ancient runnings of the said two lines, being the thirteenth and fourteenth lines of Upton Court, were from the letter black A, down to the N W branch of Patapsco river. He then read the opinion of the court, and their direction to the jury, contained in the second bill of exceptions in this cause. And gave in evidence the admissions of the defendant, and the opinion of the court, that if the tree at the end of the third line of David's Fancy, the original, therein called for, was lost, and no evidence of where it stood was given, then the third line must be run its number of perches, which number could not be lessened or increased, from the place where the jury should find the true termination of the second line. He also gave in evidence the opinion of the court given on the prayer of the defendant, No. 3. He further gave in evidence, that the true location of the thirteenth and fourteenth [**37]  lines of Upton Court, and the first and second lines of David's Fancy, the original, are truly located on the plots from letter black A, with the inner black lines 1 and 2, to little black a, by the side of the N W branch of Patapsco river. The defendant then prayed the opinion of the court, and their direction to the jury, that if they are of opinion from the evidence, that the original beginning tree of David's Fancy, surveyed for John Moale on the 1st of November 1738, is proved at the black letter A upon the plots, and that the first line of the land, as run by the surveyor, and expressed in the certificate and patent thereon issued, was run as described on the plots by the black broken line numbered with the black figure 1; and that the second line of the land, as expressed in the certificate and patent thereof, and run by the surveyor, run to the N W branch of Patapsco river, at the black letter b on the plots; and that the third line of the land, as described in the certificate and patent run by the surveyor, run to the black letter V on the plots; and that the fourth line of the land as run by the surveyor, and described by the certificate and patent thereon, run to the head [**38]  of Howard's Branch, at the black letter i, and from thence with the meanders of Howard's Branch, and to the beginning, that then the certificate, and the patent thereon issued, do not in law operate to pass any land which may be included within the original grant of David's Fancy, surveyed for David Williams on the 22d of June 1671, except the same may be also included within the metes and bounds of David's Fancy, surveyed on the 1st of November 1738, as above described; and that David's Fancy, surveyed the 1st of November 1738, does not, by legal operation, convey all the land contained within the original certificate and patent of David's Fancy, surveyed on the 22d of June 1671, unless the particular metes and bounds of David's Fancy, surveyed the 1st of November 1738, shall also include the same.

DONE, J. This point has been decided by this court in Gittings Jun's. Lessee vs. Hall. The court therefore refuse to give the opinion and direction prayed for by the defendant's counsel. The defendant excepted.

10. The sixth bill of exceptions. The plaintiff offered to read the deposition of Windel Lawrence, taken under the survey made in this cause. The plaintiff having proved [**39]  by Anne Lawrence, a witness sworn in court, that her husband, Windel Lawrence, went on board the Norfolk packet, captain Deagle, to go to Norfolk, about three weeks ago e. He first said that he intended to go to Alexandria, but the morning he left Baltimore, he informed the witness he would go to Norfolk. That when he departed, he said he should stay till the fall. That the witness hath not seen or heard from him since, and that he informed the witness, that if it suited him, he should remove his family there. That he is a brick-maker by trade. That the witness and his family, consisting of five children at this time, live in Baltimore. The plaintiff also proved by another witness, John F. Holland, that about the 15th of May 1804, he settled with Windel Lawrence, when he informed the witness that he owed some money; that he must go away if the witness did not supply him. The witness told him that he would, but that he lost so much time by attending as a witness at Annapolis, that he could not advance him any further sum. That Lawrence left the employ of the witness on the 16th of May 1804, and hath not returned since. That Lawrence had been in his brother's employ for 2 or 3 years [**40]  previous. That it is the general reputation of the neighborhood, that he has left the state, and gone to Norfolk, to work at the brick-making business. The plaintiff also proved by another witness. Joseph Robinson, that he the witness is acquainted with Lawrence, that he informed the witness, at first, that he intended to go to Alexandria, but afterwards told him that he was going to Norfolk, to work at his trade. That this conversation happened sometime about the early part of May 1804, and that he the witness hath not seen him since. That he left the employment of Holland and Ensor, in Baltimore, where the witness worked with him. The defendant objected to the reading of the deposition in evidence to the jury.

e The trial commenced on the 5th of June 1804.

DONE, J. The court are of opinion, that the deposition of Windel Lawrence is competent and legal evidence to be read to the jury.

This is different from the case of Darnall's Lessee vs. Goodwin. There, the deposition was not in the same suit, nor had the witness been in the state for a length of time. Here, every means has been used to obtain the attendance of the witness, and it is in proof that he is out of [**41]  the reach of the process of the court. The defendant excepted.

11. The seventh bill of exceptions. The plaintiff then prayed the opinion of the court, and their direction to the jury, that although David's Fancy, the original, is located by the plaintiff from A on the plots, with an allowance for variation amounting to six degrees and an half of a degree; and though David's Fancy, the escheat patent, is located from the same place, with an allowance of three degrees and one quarter of a degree for variation, the jury are not bound by the variation thus allowed, but may find the true location to be by a greater or less variation, as shall appear to them proper from the evidence in the cause.

DONE, J. The court are of opinion, and so direct the jury, that they may, agreeably to the evidence given in this cause, find the true location of David's Fancy, under the escheat patent, by a greater or less variation of the compass, as shall appear to them proper from the evidence; provided that by such allowance of variation they are not to enlarge or extend the pretensions of the plaintiff beyond the location of his pretensions made on the plots, or beyond a straight line to be drawn [**42]  from the letter V to the head of Howard's Branch, wherever the jury shall find the same to be. The plaintiff excepted.

12. The eighth bill of exceptions. The court having given their opinion and direction to the jury, in the seventh bill of exceptions, that the plaintiff had made title to the land called David's Fancy, according to the locations thereof, under and in virtue of the certificates and patents; and the court having determined that the jury might, agreeably to the evidence given, find the true location of David's Fancy, under the escheat patent, by a greater or less variation, as should appear to them proper from the evidence; provided that by such allowance of variation they were not to enlarge or extend the pretensions of the plaintiff beyond the location of his pretensions made on the plots, or beyond a straight line to be drawn from the letter V to the head of Howard's Branch, wherever the jury should find the same to be; the plaintiff prayed the opinion and direction of the court to the jury, that if the jury are of opinion, from the whole of the evidence, that the true location of the original tract called David's Fancy, and the escheat tract also called David's [**43]  Fancy, runs from black A, with the inner black lines No. 1 and No. 2, to black a, by the side of the N W branch of Patapsco river, and from thence to black figure 3, on the plots, and from the figure 3 to such point or place as they may find from the evidence to be the head of Howard's Branch, that then the plaintiff is entitled to recover the whole of his pretensions located on the plots, which shall lay within the location found by the jury, and is not obliged to abandon any part of his actual located pretensions, by drawing a straight line from V to such place as the jury shall establish to be the head of Howard's Branch.

DONE, J. The court are of opinion, that the plaintiff cannot recover any land in this action which shall be found to lie without and beyond a straight line to be drawn from the letter V to the head of Howard's Branch, wherever the jury shall find the head of that branch to be, although those lands shall lie within the lines of David's Fancy, according to the true location, as so found by the jury, and also within the lines of the plaintiff's pretensions, as at present located upon the plots. The plaintiff excepted.

13. The ninth bill of exceptions. The [**44]  plaintiff then prayed the opinion of the court, and their direction to the jury, that if he is estopped from showing the true location of David's Fancy, the escheat, different from what is located by him for his pretensions, so as to prevent him from recovering what is contained in his pretensions within the true location, the defendant is also estopped from saying that the true location is different from the location given by the plaintiff.

DONE, J. The court are of opinion that the doctrine of estoppel does not apply to the present question It is doubtful whether estoppel can be brought at all into view in the case. The court refuse to grant the prayer. The plaintiff excepted.

The jury returned the following verdict: The jury find the true location of David's Fancy, the original, and David's Fancy, the escheat, to be from the beginning at black A, as described upon the plots in this cause returned, then with the inner black lines 1 and 2, to little black a, on the north west branch of Patapsco river, and from the said a, the jury find the third line to run to figure black 3, and from thence the jury find the fourth line runs to four perches below big black F, which the [**45]  jury find the head of Howard's Branch, and from thence, with Howard's Branch and the Middle Branch, binding on the same, to the beginning at A; and the jury find for the plaintiff his pretensions from the said A, with lines 1 and 2, to a, and from thence to V, and from V to four perches below big F, which the jury find the head of Howard's Branch, and with the same, binding on the branches to the beginning; and that the defendant is guilty of the trespass and ejectment complained of in the declaration, within the said pretensions, in the manner complained of by the plaintiff. And as to the residue of the trespass and ejectment complained of in the residue of the tract of land called David's Fancy, for which the defendant hath taken defence upon the plots returned in this cause, the jury find the defendant is in no wise guilty thereof. Judgment--That the plaintiff recover against the defendant his several terms aforesaid yet to come and unexpired, of and in all that part of the said tract of land called David's Fancy, in the declaration mentioned, lying, &c. which is contained within the description and finding of the jury, that is to say, beginning at black A, upon the said plots in [**46]  this cause returned, and running with the inner black lines 1 and 2 to little black a, on the northwest branch of Patapsco river, and from thence to V, and from V to four perches below big F, the head of Howard's Branch, and with the same, binding on Howard's Branch and the Middle branch, to the beginning--and also for costs. As to the residue, &c. judgment for the defendant. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The death of one of the lessors of the plaintiff, in an action of ejectment, may be suggested after the jury are sworn, and his heir, &c. need not appear, or be made a party

On the question, whether or not a grant of land from the proprietary to "R M, and the heirs of his body lawfully begotten, for ever," created an estate tail in R M, and upon his death without issue, the reversion was in this state standing in the place of the proprietary, notwithstanding R M's deed barring the estate tail. Held, that no interest in the nature of a trust estate ever was vested either in the proprietary, or in the state in the place of the proprietary, no act having been done which could create a trust in either; and that they could only be considered as parties having a reversionary interest expectant on the determination of the estate tail

The jura regalia, as attached to the person of the king in England, never did attach to the lord proprietary of Maryland

The proprietary held the dominion of Maryland, and property of the soil, which he could soil and dispose of in the same manner as any other person, and subject to the same beneficiary, legal and equitable rights, as in the hands of any other person

On an equitable interest being obtained in land agreeably to the rules of the land office, the party became entitled to a grant which he could compel of the proprietary

The reversionary interest of the proprietary, reserved in lands granted by him, might be destroyed by deed made by the tenant in tail, under the act of June 1773, ch. 1, as effectually as the reversionary right of any individual

The state held the proprietary's reversionary interest merely by substitution in his place, and a deed since the act of November 1782 ch 23, was competent to bar and extinguish the reversionary interest of the state

A grant for escheat land will relate back to the original grant

A subsequent grant, covering land in which the proprietary had a reversionary interest, will operate to pass such reversionary interest

A grant of land surveyed under a common warrant, will not pass land not then liable to escheat, but which afterwards became escheat, and as such granted to a third person. (Note)

An escheat certificate and grant do, by operation of law, relate to the original tract, and is strictly within the principle and rule of law of relation between grants and certificates

Where the first and second courses of an original grant of a tract of land called D F, are described as "beginning at a bounded locust tree, being the N E bounded tree of D P's land, [called U C,] and running by the land of the said P, E 65 ps. to a bounded oak, then N E 150 ps. to a bounded red oak of the said P's land; and the first and second courses of an escheat grant of the same land called D F, is described as "beginning at a locust now bounded at or very near to the place where stood a bounded locust, the original beginning tree of D F, and a bounded tree of a tract of land called U C, formerly laid out for D P, and running thence with the said land E 65 ps. (it being expressed in the certificate of the original survey to run by the land of the said P, E 65 ps. to a bounded oak, which cannot be found,) thence N E 238 ps still bounding on the said land, to the N W branch of Patapsco river, (it being therein expressed to run N E 150 ps. to a bounded red oak of the said P's land, and the certificate of the said P's land mentioning to run that course to a bounded red oak standing by the side of the said N W branch, which oak is not known.") Held, that there was no doubt or ambiguity, and that if the beginning of D F is rightly located on the plots at the termination of the twelfth line of U C, and there is no evidence of the existence of any tree as called for at the termination of the first line of D F, then the expressions in the escheat grant do bind that grant to the true location of the original tract called D F, as to the two first lines thereof, so far as the second line of the original did actually extend; and that the first and second lines of the original tract do, by virtue of the expressions therein used, bind those lines on the thirteenth and fourteenth lines of U C

Where the plaintiff has not located his escheat grant on the plots in the cause co-extensive with the location of the original tract, he cannot give evidence to extend his pretensions beyond the lines and limits he has given to the escheat grant; but he is estopped by that location from going beyond the letter V, located on the plots, from whence he must run to the head of Howard's Branch, at whatsoever point the same may be agreeably to his location of his pretensions, and the location by which the defendant has taken defence

The plaintiff cannot give any evidence of the lines of his escheat grant, running otherwise than he has located them on the plots in the cause as his pretensions; but he is not precluded from giving evidence of any other lines, as the lines of the original tract, by way of illustration; and he may support the location of his pretensions, so far as he can show that they are located within the limits of the original tract

From the place where the second line of a tract of land terminated, the third line thereof, viz. "Then N N W 86 ps to a bounded red oak, then," &c. must run the number of perches expressed in the grant, and cannot in its length be increased or diminished, unless proof is made of the tree called for, or the place where it stood

So the fourth line, viz. "Then S W to the head of Howard's Branch, then," &c. must run a straight line to the head of Howard's Branch

A private plot of the lands in dispute, permitted, under certain circumstances, to be read in evidence

The course and distance expressed in a grant of land, must always be controlled by a call expressed therein as the termination of the course; and the following course and distance used in the grant, viz. "N E 50 ps. to a small branch which make the outward narrows of the said land," must be complied with, as nearly as they can, to strike the branch described, as it existed at the time of the survey, subject to the variation of the compass on that line

The court refused to direct the jury, that the second line of a tract of land, viz. "Then N E 150 ps. to a bounded red oak of the said P's land," (being the fourteenth line of that land, which tree being lost, the place where it stood could not be proved.) must terminate at the end of 150 ps from the beginning thereof, it being a matter of fact to be left to the determination of the jury

The court refused to direct the jury, that an escheat grant did not pass any land included in the original grant, except the same was included within the metes and bounds of the escheat grant, as particularly described; and that the escheat grant did not, by legal operation, convey all the land included within the original grant, unless the particular metes and bounds of the escheat grant did also include the same

A deposition taken on the surrey, of a witness, who was absent out of the state at the time of the trial, was permitted to be read in evidence, due diligence having been used to obtain the attendance of the witness

The court directed the jury, that they might find the true location of D F, for which the ejectment was brought, by a greater or less, variation of the compass, as might appear to them proper from the evidence; provided that by such allowance of variation they did not enlarge or extend the plaintiff's pretensions beyond the location of his pretensions made on the plots, or beyond a straight line to be drawn from the letter V to the head of Howard's Branch

The court directed the jury, that the plaintiff could not recover any land which should be found to lie without and beyond a straight line to be drawn from the letter V, to the head of Howard's Branch, (he having located that line of his grant in that manner, although those lands should lie within the lines of the tract of land for which the ejectment is brought, and also within the lines of the plaintiff's pretensions, as located on the plots

The court refused to direct the jury, that if the plaintiff is estopped from showing the true location of the land, for which the ejectment is brought, different from what is located by him for his pretensions, so as to prevent him from recovering what is contained in his pretensions within the true location, the defendant is also estopped from saying that the true location is different from the location given by the plaintiff

The jury, by their verdict, in an action of ejectment, having found the true location of the land, for which the ejectment was brought, to be from A to a, to 3, to four perches below big F, the head of Howard's Branch, and then to A; they also found for the plaintiff his pretensions, (not being to the extent of the said location.) to be from A to a, to V, to four perches below big F, the head of Howard's Branch, and then to A, and that the defendant was guilty of the trespass complained of within the said pretensions, and not guilty as to the residue of the trespass complained of in the residue of the land. Held, that there was no uncertainty in the verdict

A mortgage of lands to a British subject before the revolution, was not thereafter defeated by the act of confiscation, but it was protected by the. British treaty, and the mortgage property was decreed to be sold to pay the mortgage debt. (Notes.) 

COUNSEL:
Ridgely, for the Defendant, contended, that the grant to Richard Moale of the 29th of September 1750, for David's Fancy, vested in him an estate tail, and that upon his death, without issue, the reversion is in the state of Maryland, standing in the place of the proprietary; and that the deed from Moale to Croxall had not the effect to bar the estate tail. He cited the act of assembly of Nov. 1782, ch. 23. Pigott, 85, 87, 88, 89. Neal vs. Wilding, 1 Wils. 275. Pool vs. Nedham, Yelv. 149. Anon. Noy, 132. 18 Vin. Abr. tit. Common Recovery, 233, pl. 9. 5 Bac. Abr. tit. Prerogative, (E. 5.)

Shaaff, on the same side, cited the act of assembly of October 1780, ch. 45. Owings vs Norwood's Lessee, (ante 96.) Allen vs. Stewart and Patten, a. Laws vs.  [**47]  The Attorney General, b. Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Russell's Lessee vs. Baker, 1 Harr. & Johns. 71. Gitting's jun. Lessee vs. Hall (ante 112.) 5 Bac. Abr. tit. Prerogative, (E. S.) Com. Dig. tit. Estates, (B. 31.) Statutes 34 Hen. VIII, ch. 20. Acts of assembly of November 1787, ch. 9, and 1785, ch. 87. The State vs. Stump, et al. 2 Harr. & M'Hen. 174. Laidler vs. Young's Lessee, (ante 69.)

a In the case of Allen vs. Stewart and Patten, in the court of chancery, at May term 1799, the bill was filed on the 29th of August 1798, and it was admitted, that the land mentioned in the bill was mortgaged to Allen by Patten on the 20th of May 1771, to secure the payment of £  142 0 6 sterling money, with interest thereon on the 20th of May 1773. It was admitted that Allen was a subject of the King of Great Britain, residing in Maryland in 1775, and went to England in that year, and had resided there ever since. It was submitted to the chancellor to determine, from what time and for how long the mortgagee was entitled to recover interest on the mortgage debt.

HANSON, Chancellor. It appears, that under the circumstances of this case, the chancellor is under no necessity of deciding, or submitting to the general court, the question, as the complainant is a British subject, whether or not the interest of the complainant, in the mortgaged property mentioned in the bill, was defeated by the revolution in America, and the confiscation act of this state; and that the complainant is entitled to have his debt paid by the defendant, or discharged from a sale of the property. Decreed, that unless the mortgaged debt, with interest thereon (except from the 4th of July 1776 to the 3d of September 1783,) until paid, shall be paid on the 9th of November next, the property in the bill mentioned shall be sold, &c.

Kilty and Shaaff, for the Complainant.

Moale, for the Defendants.

b The case of Lawson vs. The Attorney General, in the Court of Chancery in 1800, was similar to that of Allen vs. Stewart and Patten. In 1769, one Semple mortgaged lands to Lawson, a British subject, and being nothing more than to secure the payment of a debt, it was protected by the treaty. The attorney general was made a party, who admitted the legal estate to be in the state, and the land was decreed to be sold for the payment of the mortgaged debt. [**48]  

Martin, (Attorney General,) Key, and W. Dorsey, for the Plaintiff, cited Calvert's Lessee vs. Eden, et al. 2 Harr. & M'Hen. 279. Act of assembly of Nov. 1782, ch. 23. Doe vs. Pegge, 1 T. R. 758, (note). Armstrong vs. Peirse, et al. 3 Burr. 1900. Goodtitle vs. Jones, 7 T. R. 46, per Ashhurst, J. Doe vs. Wharton & Dixon, 8 T. R. 2. Gilb. on Uses & Trusts, 83, 85, 86. 5 Bac. Abr. tit. Prerogative, (E. S). Owings vs. Norwood's Lessee, (ante 96.)

Harper, in reply, cited Hall vs. Gitting's Lessee (June 1809). Kelly's Lessee vs. Greenfield. Russell's Lessee vs. Baker. Gitting's Jun. Lessee vs. Hall, and Owings v Norwood's Lessee.

Shaaff and Harper, for the Defendant, referred to Dorsey's Lessee vs. Hammond, 1 Harr. & Johns. 190. Darnall's Lessee vs. Goodwin, 1 Harr. & Johns. 282. Helm's Lessee vs. Howard, 2 Harr. & M'Hen. 57. Hammond's Lessee vs. Norris, (ante 130;) and Kyger vs. Kirkpatrick, 1 Harr. & Johns. 298.

Shaaff and Harper, for the Defendant, contended that the plaintiff ought not to give proof different from his allegations. They cited Hammond vs. Norris, (ante 130.)

Martin, (Attorney General,) and Key, for the Plaintiff, cited Carroll et al. Lessee vs.  [**49]  Norwood, 1 Harr. & Johns 167. Gray et ux. Lessee vs. Amos, in the General Court at October term 1796, where the plaintiff located his pretensions three ways, neither of which the jury found, although their finding was in favour of the plaintiff, and included more land than he claimed. He took judgment for the land claimed by him within the finding of the jury, and entered a release as to the residue. Darnall's Lessee vs. Goodwin, 1 Harr. & Johns. 282. Hicks vs. Scott, in the General Court, on the E. S. Nicholson vs. Hemsley, 3 Harr. & M'Hen. 409, where dotted lines were made on plots by the jury, without objection. Kirkpatrick vs. Kyger, 1 Harr. & Johns. 298.

Shaaff, for the Defendant, cited Jarrett vs. West, 1 Harr. & Johns. 501.

Harper, for the Defendant, cited Thompson et al. Lessee vs. Brown, 1 Harr. & Johns. 335. Dallas vs. Stansbury, (in the General Court May 1801,) Hammond vs. Ashton, (Ibid May 1797.) Owings vs. Kelly, (Ibid May 1796.) Hellen vs. Garretson, (Ibid October 1797.)

Key, contra, cited Helm's Lessee vs. Howard.

Martin, (Attorney General,) for the Plaintiff, cited Esp. 490.

Shaaff and Harper, contra, cited Hammond vs. Norris, (ante 130.)

Martin,  [**50]  (Attorney General,) and Key, for the Plaintiff, cited Com. Dig. tit. Estoppel, (B) (C.) Brereton vs. Evans, Cro. Eliz. 700. Ludford vs. Barber, 1 T. R. 86. Co. Litt. 352, a. Gray et ux. Lessee vs. Amos, (October 1796.)

Harper, Shaaff and Taney, for the Appellant, stated, that the first bill of exceptions embraced three points--1. Whether the Lord Proprietary be not estopped by his grant of Lun's Lot as to all such parts of David's Fancy, (the original,) as are included within the true location of Lun's Lot? 2. Whether the entail created by the patent of David's Fancy, (the escheat,) be docked by the deed of bargain and sale to Croxall? 3. Whether, admitting these two points to be determined in favour of the plaintiff below, any estate in the escheat land passed to the lessors of the plaintiff by the will of John Moale, it not appearing that John Moale entered or died seized?

On the first point they cited Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Russell's Lessee vs. Baker, 1 Harr. & Johns. 71. 2 Blk. Com. 295. Co. Litt. 47, b, 352, a. 10 Vin. Ab. 471, 482, 485. Fairtitle vs. Gilbert, 2 T. R. 171. Hayne vs. Maltby, 3 T. R. 441. 4 Com. Dig. tit. Estoppel, 80, 84.  [**51]  10 Vin. Ab. tit. Estoppel, (B. a.) Co. Litt. 47, a, 363, b, 366, b; and The Attorney General vs. Anderson, 1 Harr. & M'Hen. 219.

On the third point they cited 5 Bac. Ab. tit. Verdict, (D.) Mahoney vs. Ashton, 1 Harr. & M'Hen. 210. Stat. 32 Hen. VIII, ch. 1. 5 Bac. Ab. tit. Wills and Testaments, (D. 1.) Stat. 34 Hen. VIII, ch. 5, s 3, 5. Wallis vs. Flelcher, Cro. Eliz. 530. Ingram vs. Tothill, 1 Mod. 217. Bunter vs. Coke, 1 Salk. 238. 2 Bac. Ab. tit. Legacies and Devises, (B) 51, 52. 2 Blk. Com. 310, 209, 227, 228, 312, 323, 332, 338, 375; and 2 Bac. Ab. tit. Descents, (C) 30.

That on the second bill of exceptions two questions arise--1. Whether the escheat patent does, by operation of law, relate to the original patent? 2. Whether the expressions used in the original patent of David's Fancy de, by operation of law, bind its second line on the fourteenth line of Upton Court?

As to the first question, they cited The Attorney General vs. Snowden, 1 Harr. & Johns. 332. Rateliffe's case 3 Coke, 40. Kelly's Lessee vs. Greenfield, 2 Harr. & M'Hen. 2 Blk. Com. 244. The Attorney General vs. Anderson, 1 Harr. & M'Hen. 219; and Litt. Sect. 348.

As to the second question, they [**52]  cited Helm's Lessee vs. Howard, 2 Harr. & M'Hen. 57. Dorsey's Lessee vs. Hammond, 1 Herr. & Johns. 190; and Davis's Lessee vs. Batty, Ibid 264.

That on the third bill of exceptions, the question was whether a plot in which the defendant below had nothing to do, of the making of which he was ignorant, and which was made for and under the direction of R. Moale, under whom the lessors of the plaintiff claim, could be given in evidence against the defendant, merely because it was in part founded on a survey made at his instance and that of R. Moale? They cited Anonymous, 1 Stra. 95. Bull. N. P. 247, 248; and Bridgman vs. Jennings, 4 Ld. Raym. 734.

That on the fourth bill of exceptions two questions arise--1. Whether the termination of the second line of David's Fancy, (the original,) be not a question of law for the decision of the court? 2. Whether the true legal construction of the patent of David's Fancy, (the original,) be not to terminate its second line at the end of 150 perches?

On the first of these questions they cited Gibson's Lessee vs Smith, 1 Harr. & Johns. 253. Gittings's Lessee vs Hall, (on appeal in this court.) Dorsey's Lessee vs. Hammond. 1 Harr. & Johns.  [**53]  190.

On the second, Gittings's Lessee vs. Hall, (on appeal in this court.)

That on the fifth bill of exceptions, the question was, whether the location of the escheat patent of David's Fancy be not independent of the location of the original, except so far as the lines of the former expressly call to bind on those of the latter? They cited Helm's Lessee vs. Howard, 2 Harr. & M'Hen 57. Dorsey's Lessee vs. Hammond, 1 Harr. & Johns. 190. Howard's Lessee vs. Cromwell, Ibid 118; and Hawkins vs. Hanson, 1 Harr. & M'Hen. 523.

That on the sixth bill of exceptions two questions arise. 1. Whether a deposition taken on the survey could be read in evidence, unless it appeared that the witness was dead, or removed to a foreign country? Whether a mere temporary absence be sufficient? 2. Whether in this case the plaintiff below be not precluded by his neglect from the benefit of this testimony? They cited Darnall's Lessee vs. Goodwin, 1 Harr. & Johns. 282; and 1 Lofft's Gilb. 60.

That three questions arise upon the record, independent of and unconnected with the bills of exceptions--1. That the death of one of the lessors of the plaintiff, since the action was brought, and suggested [**54]  after the jury were sworn, makes the proceedings erroneous. 2. That the finding of the jury is uncertain; and 3. That the judgment is entered to recover all the several terms stated in the declaration, including the term on the demise of the lessor, whose death was suggested.

In arguing the first and third questions they cited Howard's Lessee vs. Gardiner, 3 Harr. & M'Hen. 98. The acts of 1785, ch. 80, and 1801, ch. 74, s. 38. Com. Dig. tit. Abatement. Aslin vs. Parkin, 2 Burr. 667, 668. Parker vs. Harris, 1 Salk. 262. Henriques vs. Dutch West India Company, 2 Stra. 808. Lampen vs. Hatch, Ibid 934. Fredcrick vs. Lookup, 4 Burr. 2021; and Cuming vs. Sibly, Ibid 2490.

As to the second question they cited Bac. Ab. tit. Verdict, (Q.) and Gittings's Lessee vs. Hall, 1 Harr. & Johns. 14.

Johnson, (Attorney General,) Key, Mason and Martin, for the Appellee, on the first bill of exceptions cited, as to the first point, 1 Pow. on Cont. 152, 160. Co. Litt. 45, a, 47, b, 352, a, 363, b. 2 Blk. Com. 245, 346. 10 Vin. Ab. tit. Estoppel, 433, pl. 1; 461, pl. 3; 463, pl. 22, pl. 26; 475, pl. 4; 476, pl. 1. Goodtitle vs. Morse, S T. R. 365. 3 Com. Dig. 271; and Pickett vs. Dowdall,  [**55]  2 Wash. Rep. 106. As to the second point, they cited Calvert's Lessee vs. Eden, 2 Harr. & M'Hen. 279. And as to the third point they cited Lux's Lessee vs. Pellett, 1 Harr. & Johns. 83. (note.) Taylor vs. Horde, 1 Burr. 60. 16 Vin. Ab. tit. Possession, 455, pl. 1 Smith vs. Stapleton, 1 Plowd. 431. Moore, 214. Deux vs. Jefferies, Cro. Eliz. 352; and Sacheverel vs. Bognott, Ibid 356.

On the second bill of exceptions, they cited as to the first question, 2 Blk. Com. 244, 245. Burgess vs. Wheate, 1 W. Blk. Rep. 146, 163, 166. Co. Litt. 215, b; and The State vs. Reed, 4 Harr. & M'Hen. 6. And as to the second question they cited Dorsey's Lessee vs. Hammond, and Gibson's Lessee vs. Smith.

On the fourth bill of exceptions they cited Dorsey's Lessee vs. Hammond.

On the fifth bill of exceptions they cited Gittings's Lessee vs. Hall, 1 Harr. & Johns. 14. Tolson's Lessee vs. Lanham, (ante 174;) and Gittings's Lessee vs. Hall, (on appeal in this court)

On the sixth bill of exceptions they referred to the acts of July 1721, ch. 14, and July 1779, ch. 8. Stevenson vs. Myers, 1 Harr. & Johns. 102. Gilb. L. E. 60. 1 Lofft's Gilb. 214, 218; and Fry vs. Wood, 1 Atk. 445.

On the [**56]  alleged errors in the record they cited, on the first and third points raised. Far vs. Denn. 1 Burr. 362, 363, 364. Oates vs. Brydon, 3 Burr. 1897. Runn. Eject. 411, 413, 414, 438, 439. Addison vs. Oatway, 1 Mod. 252. Anon. 1 Salk. 260. Bull. N. P. 98. Thrustout vs. Grey, 2 Stra. 1056. Fairclaim vs. Shamtitle, 3 Burr. 1290. Aslin vs. Parkin, 2 Burr 667. 1 Bac. Ab. tit. Abatement, (F.) And as to the second point they cited Cottingham vs. King, 1 Burr. 628, 629, 630. Carroll et al. Lessee vs. Norwood, 1 Harr. & Johns. 186. Darnall's Lessee vs. Goodwin, Ibid 284. Sullivane vs. Seagrave, 1 Stra. 695. Camell vs. Clavering, 2 Ld. Raym. 789. Bindover vs. Sindercombe. Ib. 1470 2 Bac. Ab. 230, 231, 232; and Whittingham vs. Andrews, 1 Salk 255.

Curia adv. vult.  

JUDGES:
The cause was argued at the last term before TILGHMAN, BUCHANAN, NICHOLSON, and GANTT, J.  

OPINIONBY:
NICHOLSON 

OPINION:

 [*280]  THE COURT, (at this term,) concurred in the opinions of the General Court, as contained in the several bills of exceptions taken on the part of the defendant in that court, and were of opinion, that there was no error either in the judgment or in the record of proceedings.
NICHOLSON, J. I am for affirming [**57]  the judgment upon all the bills of exceptions; also upon the alleged uncertainty of the verdict and judgment; also for the alleged error as to the death of Richard H. Moale. I am decidedly of opinion, that the death of the plaintiff's lessor does not abate a suit in ejectment. In affirming the judgment of the general court, upon the first bill of exceptions, I wish it to be understood that I do not entertain the most remote idea, that the Lord Proprietary was not liable to be estopped, as other individuals are, or that he had any other of the incidental prerogatives of the Kings of England; he had only such of the direct prerogatives as were expressly granted by the charter.
JUDGMENT AFFIRMED.  

15 of 28 DOCUMENTS 

HOLLINGSWORTH, et ux. vs. M'DONALD, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 230; 1807 Md. LEXIS 22 

December Term, 1806, Argued 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the court of chancery dismissing the bill of complaint. The material facts were these--The complainant Rachel, (one of the appellants,) whilst she was sole, on the 21st of September 1790, was seized in fee of the tracts of land called Rich Neck and Howard's Timber Neck. A marriage settlement took place between the complainants, on the 21st of September 1790, and Lyde Goodwin was appointed trustee. This settlement was as follows: "This indenture, made the 21st of September 1790, between Jesse Hollingsworth, of the first part, Rachel Lyde Parkin, of the second part, and Lyde Goodwin, of the third part;" and after reciting the intended marriage between the said Jesse and Rachel, stated, that the said Jesse granted, &c. to the said Lyde, and the said Rachel, with the consent and approbation of the said Jesse, granted &c. to the said Lyde, his heirs and assigns, all those tracts of land called Rich Neck and Howard's Timber Neck, "to have and to hold the said lands," &c. "unto the said Lyde Goodwin, his heirs and assigns, for ever. In trust nevertheless, and for the uses," &c. "That she the said Rachel shall have, hold, occupy, possess and enjoy, the said lands,  [**2]  with the rents, issues and profits thereof, for and during the natural life of the said Rachel, and the same convert and apply to her separate use and benefit, without any let, trouble or impediment, from the said Jesse, in as full and ample manner, to all intents and purposes, as if she the said Rachel had remained a feme sole, and unmarried; and from and after her decease, that Thomas Parkin, and his heirs, for ever, shall have and possess the said lands and premises; and in case of his the said Thomas's death, without lawful issue, the said lands and premises shall revert to, and be vested in, the said Rachel, and her heirs, for ever," &c. The marriage took effect, and on the 4th of January 1796 the complainants, together with Lyde Goodwin, executed a deed to Thomas Parkin, the son of the female complainant by a former marriage, which purports to convey to him an estate in fee simple in the said lands, and was acknowledged as follows: "Baltimore county, sct. On this 15th day of February 1796, personally appeared Jesse Hollingsworth and Lyde Goodwin before us the subscribers, two justices of the peace for Baltimore county, and severally acknowledged the foregoing instrument of writing [**3]  to be their act and deed, according to the true intent and meaning thereof. At the same time came Rachel, the wife of the said Jesse Hollingsworth, and being by us privately examined apart from and out of the presence and hearing of her said husband, did acknowledge the foregoing instrument of writing to be her act and deed, according to the intent and meaning thereof, and declared that she made and executed the same, and this her acknowledgment thereof, voluntarily and of her own free will and accord, without being induced thereto by threats of or ill usage from her said husband, or through fear of his displeasure." This acknowledgment was signed by the justices. Parkin, the grantee, died in possession of the lands in 1797, of full age, and by his will devised the same in fee to his mother, one of the complainants. Certain creditors of Parkin and M'Kenna filed a bill in the court of chancery against the complainants, under the devise to the mother as devisee of Parkin, or as his heir at law, stating that Parkin died seized in fee of the lands; that they were his creditors; that Parkin and M'Kenna were insolvent, and praying a sale of the land. The complainants answered the bill, admitting [**4]  Parkin to be seized in fee of the lands; and that he devised the same to his mother, one of the complainants. A decree for a sale took place; S. Chase, junior, was appointed trustee for making the sale, who made a sale of part of the lands, and made a report thereof to the chancellor, which was confirmed, by the consent of the complainants. After the sale was made, and the confirmation thereof, the complainants alleged, they had discovered that Parkin never was seized of the lands in fee, but that the estate in fee belonged to the complainant, Rachel; and that the deed from the complainants to Parkin, was not such a deed as passed the estate of a married woman. The prayer of the bill was, that the chancellor would decree the sales of the lands to be null and void, &c. and for general relief, &c.

HANSON, Chancellor, (October term 1805,) decreed, that the bill be dismissed, &c. From this decree the complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The habendum of a conveyance in trust, after vesting a life-estate in R P, uses the following expressions: "And from and after her decease, that T P, and his heirs, forever, shall have and possess the said land and premises; and in case of his, the said T P's death, without lawful issue, the said lands shall revert to, and be vested in, the said R P, and her heirs, for ever"--Held, that T P took a fee tail, with a reversion in fee to R P.

In a conveyance of a freehold or legal estate, technical words are appropriated by law to the creation, or limitation of particular estates; for instance, to create an estate in fee the limitation must be to J S, and his heirs, and to create a fee tail, to J S, and the heirs of his body. The words de corpore suo, are indispensably necessary, but may be supplied by words to the same effect, plainly designating or pointing out the body from whom the heirs inheritable are to issue or descend

Whether the court can, and how far they are at liberty, in expounding a deed of conveyance, creating or limiting a use or trust at common law, and not united to the possession by the statute of uses, to reject the rules established by the common law, in the construction of a conveyance of a freehold estate, and to give an exposition according to the intention of the parties as in a will?

Whether a trust estate, or any but a legal estate can pass by a deed of bargain and sale?

Whether a feme covert can pass her real estate in any other way than by a deed of bargain and sale?

Whether a trust estate is answerable to the creditors of cestui que trust?

A feme covert cannot transfer or pass her interest in land to another, unless by fine, common recovery or deed executed and acknowledged according to the mode prescribed by the act of 1715, ch. 47.

The acknowledgment of a deed by a feme covert grantor, held to be defective, the word "fear" being omitted in the certificate of the acknowledgment, and no word of similar import or meaning substituted in its place; but held to be cured by the act of 1807, ch. 52.

A beral adherence to the form of such certificate is not essentially requisite; and the omission of words decreed essential can be supplied by the substitution of words equipollent, or of similar import and signification.

A decree of the chancellor is subject to his control, only upon a bill of review, or a bill in the nature of a bill of review.

A bill of review lies after the decree is signed and enrolled

A bill in the nature of a bill of review lies after the decree is made, but before enrolment.

A decree must be considered as enrolled after it is signed by the chancellor and filed by the register.

A bill of review will only lie for two causes: Error apparent on the decree, or for some matter relevant, existing at the time of the decree, and discovered since.

A bill of review cannot be supported for matter existing at the time of the decree and discovered since, without affidavit of such matter, and the existence of it at the time of the decree, to lay a found for applying to the chancellor for his leave to file a bill of review, and obtaining such leave.

On petition suggesting proper matter supported by affidavit as the ground for filing a bill of review, the chancellor exercises his judgment on the property of interfering or meddling with his decree for the cause disclosed, and grants or rejects the application accordingly.

As to the distinction between trusts executed and executory.  

COUNSEL:
Key, for the Appellants, contended, 1. That the deed of the 21st of September 1790, being a marriage settlement, vested the fee of the lands in Goodwin, as trustee, for the sole and separate use of Mrs. Hollingsworth, for life,  [**5]  of the rents, issues and profits thereof. 2. In trust for Parkin, an estate tail. 3. In trust of the remainder in fee to Mrs. Hollingsworth, and her heirs. 4. That no power of disposition is given by the trust deed of the lands therein mentioned. 5. That the deed of the 4th of January 1796, does not pass any estate or interest from Mrs. Hollingsworth. 6. That an equitable estate can no more be conveyed by a feme covert, unless the law is complied with, than a legal estate can, if there is no power given in the trust deed pointing out a different mode. 7. That no act done by Mrs. Hollingsworth does divest her estate in the lands.

On the first, second, third, and fourth points, he insisted, that the trusts created by the deed of 1790, were not executed by the statute, and that where they were not, the terms of the trust must be governed by the intention of the grantor. That the legal effect and import, and the particular meaning and operation of that deed, created an estate tail in Parkin, and the lands were not answerable for his debts. To show that the words in the habendum of the deed created an estate tail, he cited 2 Roll. Ab. tit. Grant, 65, pl. 25. Ibid. 68, pl. 28. Co. Litt.  [**6]  21, a; and Shep. T. 52, 75, 103, 113.

On the fifth point, he referred to the act of 1715, ch. 47. Webster's Lessee vs. Hall, 2 Harr. & M'Henry, 19. Flanagan's Lessee vs. Young, Ibid 38. Lewis's Lessee vs. Waters, 3 Harr. & M'Hen. 430. Jacob's Lessee vs. Kraner, 1 Harr. & Johns. 291. Peddicoart's Lessee vs. Riggs, Ibid 293. Hawkins's Lessee vs. Burress, Ibid 513. The Corporation, &c. vs. Hammond, Ibid 580. Heath's Lessee vs. Eden, Ibid 751; and Greene vs. Muse & Ennalls's Lessee, (ante 62.)

On the sixth point, he cited Shep. T. 507. Gilb. L. of Uses, 1, 2, 244. Watts vs. Ball, 1 P. Wms. 109. 2 Blk. Com. 337. Banks vs. Sutton, 2 P. Wms. 713. North vs. Champernoon. 2 Chan. Ca. 78; and Calvert's Lessee vs. Eden, 2 Harr. & M'Hen. 336.

Harper, for the Appellee, contended, 1. That this was substantially a bill of review, on the ground of new matter discovered, and must be so considered; and in this view of the bill, it is liable to four objections--1st. It is not in time. 2d. It is without affidavit or leave. Mitf. 34. 3d. It is not for newly discovered matter. Chan. Pr. tit. Bill of Review. Mitf. 34. And 4th. If this could be considered as newly discovered matter, it is still [**7]  not within the rule. It must be matter which the party had previously no means of knowing. Ibid.

2. That Mrs. Hollingsworth's acknowledgment of the deed of 1796, is sufficient, the act of 1715, ch. 47, not prescribing a formula which must be strictly pursued. Webster's Lessee vs. Hall, 2 Harr. & M'Hen. 19. Pattison's Lessee vs. Chew, 1 Harr. & Johns. 587, (note.) Gittings's Lessee vs. Hall, in this court, on appeal.

3. That Parkin, under the deed of 1790, had a remainder in fee simple, and not in tail; and that such a limitation, applied in a deed to a legal estate, either at common law, or by way of use, would give a fee simple, he cited 3 Blk. Com. 107. Litt. Sect. 31. Co. Litt. 21, 27, b. Abraham vs. Twigg, Cro. Eliz. 478. Idle vs. Cooke, 2 Ld. Raym. 1146. 1 Roll. Ab. 838. Paramour vs. Yardly, Plow. 541. Litt. 258. Turnman vs. Cooper, Cro. Ja. 476. Leigh vs. Brace, Carth. 343. S. C. 5 Mod. 266. S. C. 1 Ld. Raym. 101. S. C. 3 Salk. 337. That trust estates are governed in their creation, limitation and extent, by all the same rules of construction, which apply to legal estates, he cited 2 Blk. Com. 337. Shep. T. 507. Duke of Norfolk's case, 3 Chan. Ca. 48. Philips vs. Philips,  [**8]  1 P. Wms. 35. Watts vs. Ball, Ibid 109. Banks vs. Sutton, 2 P. Wms. 713. Jones vs. Morgan, 1 Bro. Chan. Cd. 222. Philips vs. Bridges, 3 Ves. jr. 127. Bagshaw vs. Spencer, 2 Atk. 578. Garth vs. Baldwin, 2 Ves. 646. 2 Fonbl. 16. 1 Fearne, 166, 170. Glenorchy vs. Bosville, Ca. temp. Finch, 3 Ward vs. Bradley, 2 Vern, 23. Peacock vs. Spooner, Ibid 195. Dafforne vs. Goodman, Ibid 363. Webb vs. Webb, 1 P. Wms. 132. Theebridge vs. Kilburne, 2 Ves. 237. 2 Fearne, 302. That admitting the acknowledgment to be ineffectual, and Parkin to have only an estate tail, with remainder over in fee to his mother, until the interest during her life is at end, the estate is liable for Parkin's debts; and that this application, if free from all other objections, is premature. He cited Lord Hardwiche's observations in Pawlet vs. Delaval, 2 Ves. 666.

Martin, in reply. 1. As to the question what estate was created by the deed of 1790, he cited Co. Litt. 21, a. 1 Roll. Ab. 838. Turnman vs. Cooper, Cro. Jac. 476. Bamfield vs. Popham, 1 P. Wms. 57, (n.) Perkins, sect. 173. 2. He contended that the court of chancery determines what estate passes under the trusts; and whatever interest that court determines [**9]  to exist, goes as a legal estate at law. He cited 5 Bac. Ab. tit. Uses & Trusts, 308, 352, 354, 379, 386. Gilb. Law of Uses, 161, 162. 3. As to what is an executed, and what is an executory trust, he cited 2 Fonbl. 50, (note.) Ibid 400, (note, q.) 4. As to the legal effect of the deed of 1796, he referred to the act of 1715, ch. 47 Wilson on Fines, 20. Nicholson's Lessee vs. Hemsley, 3 Harr. & M'Hen. 409; and Sonday's Case, 9 Coke, 127. 5. That if a feme covert holds a separate estate under a marriage settlement, she cannot convey in any other mode than that prescribed by law, where there is none pointed out in the marriage settlement. He cited 2 Bac. Ab. tit. Curtesy. Hearle vs. Greenbank, 3 Atk. 695. S. C. 1 Ves. 298. Roberts vs. Dixwell, 1 Atk. 607. 6. Whether the appellants have a right to bring the present bill, if considered as a bill of review upon discovery of new facts, or as an original bill, he cited Mitf. 35, 74. 1 Harr. Chan. Pr. 306. Hind's Pr. 38. Anonymous, 3 Atk. 17. Norris vs. Le Neve, Ibid 26, 35, 38.

Curia adv. vult.  

JUDGES:
The cause was argued before CHASE, Ch. J. TILGHMAN, BUCHANAN, NICHOLSON and GANTT, J.  

OPINIONBY:
CHASE 

OPINION:

 [*235]  At the present term the [**10]  opinion of the court was delivered by
CHASE, Ch. J. In this case, the first question to be decided by the court is, what estate vested in Thomas Parkin, in the land in question, under and in virtue of the deed from Jesse Hollingsworth, and Rachel Lyde Parkin, to Lyde Goodwin, executed on the 21st of September 1790?
The question arises on the following words in the habendum of the deed: "And from and after her decease, that Thomas Parkin, and his heirs, for ever, shall have and possess the said lands and premises; and in case of his the said Thomas's death without lawful issue, the said lands shall revert to and be vested in the said Rachel, and her heirs, for ever."
It is admitted that Lyde Goodwin, under this deed, took a fee simple in the lands in question, in trust for Rachel Parkin, during her life, and that the words before recited, would in a will create an estate tail in Thomas Parkin; but it is objected that those words in a deed will not create an estate tail, and that a fee simple passed to Thomas Parkin.
It is without doubt that the above words in a will would give a fee tail, because no technical words being necessary [**11]  to create such estate. The intention expressed by the words of the testator must prevail if not inconsistent with some rule or principle of law; and the intention is plain here that Thomas Parkin was to take a fee tail.
In a deed or conveyance of a freehold or legal estate, technical words are appropriated by law to the creation or limitation of particular estates; for instance, to create an estate in fee, the limitation must be to J. S. and his heirs, and to create a fee tail, to J. S. and the heirs of his body. 

 [*236]  It is established that the words de corpore suo are not indispensably necessary, but may be supplied by words equipollent or tantamount, plainly designating or pointing out the body from whom the heirs inheritable are to issue or descend.
In this case the limitation is to Thomas Parkin, and his heirs, and in case of his death without lawful issue, to revert to Rachel Parkin, and her heirs. These words are comprehended in one sentence, and contain the two requisites necessary to constitute an estate tail. The subsequent words, "in case of his death without lawful issue," qualify and restrain the generality of the precedent expressions,  [**12]  (to Thomas Parkin, and his heirs,) and point out, unequivocally and plainly, the heirs intended to inherit, and confine them to heirs of his body. Thomas Parkin could not die without heirs, as long as he had lawful issue; and in this case the words lawful issue, heirs of his body, and issue of his body, as words of limitation, expressive of the quality of the estate to be granted, are of the same import and signification, and necessarily designate the heirs intended to inherit, and do convert the fee simple created by the first words, into a fee tail; for Thomas Parkin could not have issue, or lawful issue, but of his body.
The court being of opinion, that an estate tail vested in Thomas Parkin, with the reversion in fee to Rachel Lyde Parkin, under the deed; and being also of opinion, that the said words, in a conveyance of a freehold estate would create a fee tail, it becomes unnecessary to decide the question, so ably and learnedly discussed by the counsel, how far the court is at liberty, in expounding a deed of conveyance creating or limiting an use or trust at common law, and not united to the possession by the statute of uses, to reject the rules established [**13]  by the common law, in the construction of a conveyance of a freehold estate, and to give an exposition according to the intention of the parties, as in a will.
It is also unnecessary to decide on the nice and refined distinctions between trusts executed and executory; and the court give no opinion on those questions.
As to the operation of the deed of 1796. It is unquestionable that a feme covert cannot transfer or pass her interest in land to another, unless by fine, common recovery, or deed executed and acknowledged according to the mode 

 [*237]  prescribed by the act of 1715; and the question to be decided by the court is, whether the acknowledgment of the deed by Mrs. Hollingsworth is conformable to the said mode, and effectual to render the deed operative in law to convey her interest in the lands in dispute to her son Thomas Parkin?
The court are of opinion, that the acknowledgment is substantially defective, the word "fear" being omitted in the certificate of the acknowledgment, and no word of similar import or meaning substituted in its place. The word fear, in that part of the certificate, means a particular specific kind of fear, and signifies that [**14]  she makes her acknowledgment without being induced thereto by fear of ill-usage by her husband. The true and genuine meaning of the words, "without being induced thereto by fear or threats of, or ill-usage by, her husband," being fear of ill-usage, threats of ill-usage, or actual ill-usage.
The court, in thus giving their opinion, do not decide that a literal adherence to the form of the certificate is essentially requisite, and that the omission of words deemed essential, cannot be supplied by the substitution of words equipollent, or of similar import and signification. But the court are of opinion, that the deed is rendered valid and effectual to pass the land mentioned therein, to Thomas Parkin, in fee simple, by the act of assembly, entitled, "An act for quieting possessions, and securing and confirming the estates of purchasers," passed at November session 1807, ch. 52, it appearing by the certificate of the acknowledgment of Rachel Hollingsworth, that she made her acknowledgment privately and willingly, out of the presence and hearing of her husband.
As to the question, whether the present bill can be sustained?
The decree of the chancellor is subject [**15]  to his control, only upon a bill of review, or a bill in the nature of a bill of review.
A bill of review lies after the decree is signed and enrolled.
A bill in the nature of a bill of review lies after the decree is made, but before enrolment.
A decree must be considered as enrolled, after it is signed by the chancellor, and filed by the register.

 [*238]  A bill of review will only lie for two causes--Error apparent on the decree, or for some matter relevant, existing at the time of the decree, and discovered since. Nothing appears on the proceedings on the first bill to support the position that there is error apparent on the decree, the deeds not being made a part of the proceedings.
It cannot be supported for matter existing at the time of the decree, and discovered since, without affidavit of such matter, and the existence of it at the time of the decree, to lay the foundation for applying to the chancellor, for his leave to file a bill of review, and obtaining such leave.
On petition suggesting such matter, supported by affidavit as the ground for filing a bill of review, the chancellor exercises his judgment on the propriety of interfering or meddling with his decree, [**16]  for the cause disclosed, and grants or rejects the application accordingly. These requisites, for laying the foundation for the present bill, not having been complied with, the court are of opinion, that the decree of the chancellor, dismissing the bill, be affirmed, with costs to the appellee.
DECREE AFFIRMED.  

16 of 28 DOCUMENTS 

REINICKER VS. SMITH. SMITH vs. REINICKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 421; 1809 Md. LEXIS 10 

June, 1809, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from a decree of the Court of Chancery. The complainant, (Reinicker,) filed his bill of complaint against the defendant, (Smith,) stating that Thomas Franklin, being seized of a lot of ground in Baltimore, agreed to sell all his interest therein to the complainant for the consideration of £  112 10 0, which agreement was reduced to writing, and is evidenced, by the bond of conveyance exhibited, dated the 20th of March 1794. That the consideration money has been fully paid. The bill further stated, that Benjamin Franklin, brother of Thomas, afterwards claiming to be possessed of an interest in the premises, agreed to transfer and convey the same, absolutely, to the complainant, for the consideration of $ 300, which agreement was reduced into writing, and is evidenced by the bond of conveyance, exhibited, dated the 29th of July 1794. That the consideration money has been fully paid; and the complainant, ever since the execution of the two bonds of conveyance, has been in the quiet, secure, and unmolested enjoyment of the premises. That Thomas and Benjamin Franklin are both since dead, and that Sarah Smith, the defendant, is seized and possessed of the inheritance and legal [**2]  estate in the premises, by right of descent, and as heiress at law. That the complainant has frequently applied to her for a deed of conveyance of the premises, which she has refused to execute, and has instituted actions of ejectment for the recovery of the possession of the premises. Prayer for a specific performance of the agreements, and a deed of conveyance of the premises, and for an injunction, &c. The answer of the defendant stated, that her brother, James Franklin, was in his lifetime seized and possessed, and died seized and possessed, amongst other real estate, of the lot of ground mentioned in the bill, on the 31st of December 1793, intestate, leaving a sister, (the defendant,) and two brothers, Thomas and Benjamin, before named, and which two brothers, and the defendant, on the death of James, became, under the act to direct descents, entitled equally to all the real estate of which James died seized, subject to the provisions and regulations mentioned in that act. That both her said brothers were in the habits of drinking strong liquor to great excess; and from the time of the death of their brother James, being freed from all restraint, and having entirely in their power [**3]  the means of gratification, and being, it is believed, encouraged in their excesses by persons who wished to obtain advantages over them, they were almost constantly in a state of intoxication; and that when not actually drunk, they were scarce ever, if ever, free from the effects of the excesses to which they were addicted, and the mental imbecility arising therefrom. That their extreme fondness for strong liquor, and their anxiety to obtain it, also rendered them open to imposition from any person who would furnish them with money by which they could procure their gratification, however exorbitant the terms; and whatever contract they, or either of them, might have entered into for the sale of lands, it is believed, originated either from their being in a state of intoxication at the time, or from the solicitude of acquiring money for their excesses, as they had no occasion to dispose of any of their real estate to supply any necessary want. That both her brothers died within eight months after the death of their brother James, and within eleven days of each other, having fallen victims to their constant intoxication. That Benjamin died on the 10th, and Thomas on the 20th of August,  [**4]  1794. That the lot of ground mentioned in the bill, is situate in a very valuable and improving part of Baltimore town, and contains an acre of ground, and is believed, by the best judges, to be worth upwards of £  2000. That Reinicker pretends to have the bonds of conveyance set forth, but they are not admitted to have been executed by her brothers, or either of them, or that they received the alleged consideration; but if the bonds were executed, she has no doubt but they were executed by her brothers when in a state of intoxication, or when they were incapable of transacting business, and that advantage was also taken of their ignorance of the value of the property; for the money alleged to have been paid for the property is not equal to the sixth part of the value of the lot. She admits that she has refused to convey the lot to Reinicker, because she was and is of opinion, that she is not bound in law or equity to convey the same. That she is willing; and has offered to pay to him any sum of money which her brother Thomas hath actually received from him.

Testimony was taken and returned under a commission which issued, and the case was argued before, and submitted to, the [**5]  chancellor.

HANSON, Chancellor. The complainant applies for the performance of a contract made by a brother of the defendant, who has refused on the ground of the complainant's having taken advantage of a man whom habitual intoxication had rendered unfit to manage his own affairs, and an easy prey to an artful designing man.

The chancellor conceives that the privileges of drunkenness are pretty well ascertained, and that they ought not to be extended. Has it ever been settled or understood, that because a man is addicted to strong drink, no contract which he makes shall be binding, unless he, or those who come after him, shall think it eligible to abide by the bargain? If this were the case, a drunkard would have advantages far superior to those which are enjoyed by the most prudent, shrewd, sagacious man. For instance, seven years ago he sold land for £  5 an acre, which in the opinion of witnesses was at that time worth £  7. It is now worth £  20. He has not conveyed it. Being sued in chancery, he says "it is well known that I was every day drunk, and therefore the contract ought not to stand." The chancellor, as he has already said, considers the privilege to be well [**6]  ascertained, and sufficiently extensive. If a man evidently has procured another to be intoxicated, in order that he might obtain an unconscionable bargain of him, and has obtained it, this court will not, on application, hesitate to vacate the contract. But if a man, accustomed to strong drink, and even to be intoxicated every day, but notwithstanding possessed of reason, and the power of reflection, determines, with all the deliberation he is capable of, to sell his property, offers it repeatedly for sale, at length sells it at the best price he can obtain, to a man, against whom there is not proof of his having taken advantage of the hour of intoxication; if afterwards he professes himself satisfied with the bargain, and assigns a good reason for it--when the bargain is clear, explicit and certain--when it has been fully executed on the other side--the chancellor cannot think, that under such circumstances this court ought not to enforce it. He has described the case before him with respect to Thomas Franklin, as appears to him from the proceedings. Decreed, that the defendant, by a good deed, to be acknowledged and recorded according to law, give, &c. to the complainant, and his [**7]  heirs, one undivided third part of the lot or ground mentioned in the bill, and the bonds from Thomas and Benjamin Franklin, deceased, to the complainant.

As to the contract of Benjamin Franklin, the chancellor is of opinion, that on account of the satisfactory proof of his imbecility, it ought not to be enforced by this court; but that the money to him paid by the complainant ought to be restored. Decreed also, that the defendant pay to the complainant the sum of $ 300, which was, it appears, paid by the complainant to Benjamin Franklin, deceased; and that upon her executing and acknowledging the deed hereby directed, and paying to the complainant, or bringing into this court, to be paid to him, the sum of $ 300, the injunction in this cause issued be dissolved; and that the complainant be enjoined to, and shall deliver to her, or permit her to take or enjoy, two undivided third parts of the lot or ground before mentioned. From this decree both the complainant and defendant appealed to this court.  

DISPOSITION:
DECREE REVERSED IN PART.  

HEADNOTES:

T F. and B F, being seized as tenants in common under the act to direct descents, with S S, of and in (among others,) a lot of ground, contracted separately with G R, and agreed to convey to him all their interest therein, on the payment to each of them of $ 300; and the money being paid, possession of the lot was delivered to G R. who after the death of T and B F, filed a bill in chancery against S S, she being their heir, for a specific performance of the contract. S S, by her answer, alleged that both T & B F were in habits of intemperance, and were almost constantly in a state of intoxication. That the lot was contracted to be sold by them when in a state of intoxication, or when they were incapable of transacting business, at a price greatly below its value, &c.--Decreed, that S S convey to G R, one undivided third part of the lot of ground; but as to the contract of B F, on account of the satisfactory proof of his imbecility, it ought not to be enforced; and that G R deliver to, or permit S S to take or enjoy two undivided third parts of the lot of ground, without her returning the consideration paid by him to B F

A tenant in common, under the act to direct descents, may dispose of his interest in any particular portion of the estate so held in common 

COUNSEL:
Key and T. Buchanan, for Reinicker; and by

Martin and Harper, for Smith.

The counsel for Smith contended, that the contracts ought not to be [**8]  decreed to be specifically performed, because of drunkenness, and the inadequacy of price. As to the first, they cited 2 Pow. on Cont. 226, 227. Osmond vs. Fitzroy, 3 P. Wms. 131, (note A.) Cory vs. Cory, 1 Ves. 19. 1 Fonbl. 68. And as to the latter, they cited 2 Pow. on Cont. 78, 153, 158, 221, 224, 225, 227. Chesterfield vs. Janssen, 2 Ves. 155. Pope vs. Roots, 7 Bro. Parl. Ca. 184. Clarkson vs. Hanway, 2 P. Wms. 203. Cole vs. Gibbons, 3 P. Wms. 293. Baldwin vs. Rochford, 1 Wils. 229. Attorney General vs. Syderfin, 1 Vernon, 224. Green vs. Wood, 2 Vernon, 632, and Phillips vs. Buck, 1 Vernon, 227. They also contended, that a tenant in common could not convey less than his whole interest in the whole estate which descends to him under the act to direct descents, (1786, ch. 45,) as under that act the whole estate is to be divided; and if the interest of a tenant in common, in a particular lot of ground of that estate, has been sold by him, the division could not be made; for it might be that where there were several lots, upon the division and allotment, the particular lot which had been so sold might be assigned to some other of the heirs.

The counsel for Reinicker cited 2 Pow.  [**9]  on Cont. 152 to 159, 144 to 145, 220, 228. 1 Pow. on Cont. 30. Sugdon 167. They also argued, that it could not be said that a tenant, holding, in common with others, property in different parts of the state, could not sell his interest in any one of the parcels lying in any particular place. That he might sell his whole interest in the estate, or his interest in a part only. That he might convey his interest in a particular designated property; and if he could convey, he could contract. He could not designate a particular part of the lot or tract of land, but he might sell his interest in any particular part. There could be no difficulty under the act to direct descents, where a partition or sale of the estate was directed. The purchaser could be admitted to participate, and might be placed in the situation of the tenant who sold to him. That if a judgment was rendered against a tenant in common, it would not be contended that a fieri facias could not be laid upon his interest in a particular part of the estate, and that interest sold.  

JUDGES:
The cause was argued before CHASE, Ch. J., POLK, BUCHANAN, NICHOLSON, and EARLE, J.  

OPINION:

 [*425]  THE COURT affirmed that part of the decree [**10]  of the court of chancery from which Reinicker appealed, with costs. And on the appeal by Mrs. Smith, the court reversed that part of the decree which decreed that she should pay to Reinicker $ 300, without costs in either the court of chancery or this court; and they decreed, that on her executing the deed directed, the injunction should be dissolved, and that Reinicker be enjoined to, and should deliver to her, or permit her to take or enjoy, two undivided third parts of the lot of ground mentioned in the proceedings.
DECREE REVERSED IN PART.  

17 of 28 DOCUMENTS 

CLARKE vs. MAGRUDER, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 77; 1807 Md. LEXIS 9 

June, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. This was an action of assumpsit, brought by the appellees, (the plaintiffs in the court below,) for goods sold and delivered, &c. The writ issued on the 9th of March 1799, and at May term 1802, the action was entered for the use of Samuel Johnston, and others. The defendant, at October term 1799, pleaded non assumpsit, and issue was then joined. He afterwards, at October term 1801, filed an account in bar, and gave notice of a set off.

1. The plaintiff, at the trial at October term 1804, produced the original partnership day books in court, and a witness to prove the hand writing of the clerk who made the entries in the books, the clerk being dead. This was resisted by the defendant's counsel.

CHASE, Ch. J. The court have no doubt upon the subject. It is to be presumed, the entries being made in the hand writing of the clerk, that he delivered the goods as charged. The defendant may prove the contrary, and if he does not, it is presumption, on the part of the plaintiffs, that the clerk who made the entries on the books delivered the goods.

2. The plaintiffs then read in evidence the original writ which issued in this case on the 9th of [**2]  March 1799, (there being no endorsement at that time for the use of Samuel Johnston, and others,) and that it was served on the 19th of April 1799, with a copy of the declaration and account; and gave in evidence, that at October term 1799, the plea of non assumpsit was put in, and issue joined in the cause. They further gave in evidence, that the defendant was indebted to them on the 13th of August 1798, for goods, wares and merchandise, to him sold and delivered before that time, in the sum of £  381 10 3 1/2 current money. The defendant then offered evidence to prove, that on the 24th of August 1798, he paid the plaintiffs the sum of £  98 12 6 current money, part of the debt due to them; and that, by his counsel, he gave notice of a set off at October term 1801, of the following note, with the endorsement thereon:

"Baltimore, October 29, 1799.

For Dollars 1270 92. Six months after date we promise to pay to Mr. P. D. Goverts, or order, one thousand two hundred seventy dollars and ninety-two cents, for value received.     Wm. B. Mogruder & Co."

Which note was thus endorsed: "I hereby assign and make over all my right, title, claim and interest, of the within note,  [**3]  to Bailey E. Clark, for value received, he clearing me of my indorsement, and all possible consequences.     Peter D. Goverts."

And the defendant proved the signature to the note, "Wm. B. Magruder, & Co." to be the signature and proper hand writing of the plaintiffs, and the hand writing and signature of Peter D. Goverts, to whom the note was made payable. He also gave in evidence, that the entry on the docket of the plaintiff's cause of action for the use of Samuel Johnston, and others, was made at May term 1802, and not before. The plaintiffs then produced and read in evidence, by and with the consent of the defendant and his counsel, the certificate of Peter D. Goverts, to prove that the defendant, on the 16th of May 1800, and not before, purchased the note from him for the sum of $ 225. "Baltimore, September 12, 1803. I, the subscriber, hereby certify to have sold to Mr. Baley E. Clarke, on the 16th of May 1800, Messrs. Wm. B. Magruder, & Co's note of hand, drawn in my favour, and amounting to dollars 1270 92 cents, dated October the 29th, 1799, six months after date, for the sum of $ 225, in consideration of he the said Clarke not holding me responsible for my indorsement.  [**4]  

Peter D. Goverts."

The plaintiffs then prayed the opinion of the court, and their direction to the jury, that the defendant could not avail himself in law of the note so made and endorsed to him as a set off in bar to the residue of their claim.

CHASE, Ch. J. a. The court are of opinion, that the defendant is not entitled to the set-off claimed, as his right to the plaintiffs' note accrued subsequent to the commencement of this action. If this set-off was allowed, great mischief would result from it. It would burden the plaintiff with the costs of suit, although at the time he instituted his suit he had a good cause of action, and against which, at the time, there was no defence, and it would encourage and sanction a practice which ought not to receive any countenance or favour from this court--the practice of buying up claims against a plaintiff, which, instead of promoting, would be a perversion of justice.

a Done and Sprigg, J. concurred.

The act of assembly, in the opinion of the court, makes no change in the law as to the time the cause of action accrues. It enumerates the cases in which the set-off may be claimed, and allows the defendant to plead [**5]  it, or give it in evidence on the general issue, on filing his cause of action, and giving notice that he claims to set it off against the plaintiff's suit.

Certainly the act of assembly ought to be liberally construed so as to prevent circuity of action, and to do justice between the parties in the adjustment of their mutual debts, subsisting at the time the action was brought; but there would be no liberality or justice in construing it so as to sanction and legalize the practice of buying up claims to harass the plaintiff, and burden him with costs, without any fault in him.

The chief judge observed, that the defendant can avail himself of nothing done during the pendency of the action, unless it has the concurrent act of the plaintiff. The debt must be a subsisting debt at the time the suit is brought. If the defendant pays the debt, or has a release, he must plead it after the last continuance. If a feme sole marries pending the suit, it must be pleaded puis darrein continuance.

In the case of Wolgamot vs. Bruner, there were three pleas, viz. Nothing in arrear, payment, and set-off. There was a demurrer to the last plea, and an exception to the other pleas. The [**6]  exception was defective; and the only question was upon the plea of set-off, as the party could not take advantage of the exception, it being defective. Barnes's Notes was the only case referred to on the set-off. The case of Sapsford vs. Fletcher, 4 T. R. 511, is certainly good law; it was there considered, that payment to the landlord by the subtenant, is payment to the tenant. All the authorities, both before and since the revolution, concur in establishing that a plea of set-off is not a good plea to an avow in replevin. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
Reversed.  

HEADNOTES:

Unless the contrary is proved, it is presumptive evidence that a clerk, who is dead, and who made certain entries on the books of his employer, delivered the goods, as charged.

The defendant may set off, against the plaintiff's demand, a note of the plaintiff's accrued subsequent to the commencement of the action.

A debt or demand may be set off, or pleaded in discount, although' it was not subsisting at the time the action was brought.  

COUNSEL:
Key, and T. Buchanan, for the plaintiffs, cited and relied upon Evans vs Prosser, 3 T. R. 186. The act of assem. 1785, ch 46. 1 Esp. 239. Bull N. P. 180. The statutes, 2 Geo. II, ch 22, s. 13, and 8 Geo. II, ch 24, s. 4, 5. 3 Went. Plead. 159 to 172. Imp. C. B. 204, 254, 294. Morg. Vad. 350. Marsh, et al. vs. Chambers, 2 Stra. 1234.

Mason, for the defendant, cited and relied on Gassaway vs Dorsey, 4 Harr. & M'Hen 405. Wolgamot vs Bruner, 4 Harr. & M'Hen. 89. Baskerville vs. Brown, 2 Burr. 1229. 1 Esp. 240. The act of assem. 1785, ch 46,  [**7]  s. 7. Barnes's Notes, 450. Bull. N. P. 181. Collins vs Collins, 2 Burr. 320.

Shaaff, Johnson, (Attorney General,) and Van-Horn, for the appellant, referred to the statutes of 2 Geo. II, ch. 22, s. 11. 8 Geo. II, ch. 24, s. 4, 5; and the act of 1785, ch. 46, s. 7. Collins vs. Collins, 2 Burr. 824. Stat. 8 & 9 Wm. III, ch. 11. Evans vs. Prosser, 3 T. R. 186.

Key and T. Buchanan, for the appellees, cited Baskeville vs. Brown, 2 W. Blk. Rep. 293. 2 Burr. 1229. S. C. 3 Morg. V. M. 191, 350. 2 Harr. Ent. 468. 3 Went. 160. &c. 1 Esp. 238, 239.--Le Bret vs. Papillon, 4 East, 507. Stone vs. Rafter, 1 Harr. & Johns. 365. Reynolds vs. Beerling, 3 T. R. 188.  

JUDGES:
The cause was argued before TILGHMAN, NICHOLSON, and GANTT, J.  

OPINION:

 [*80]  THE COURT of APPEALS reversed the judgment of the General Court.  

18 of 28 DOCUMENTS 

DE SOBRY, Ex'r. of TERRIER DE LAISTRE, vs. TERRIER DE LAISTRE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 191; 1807 Md. LEXIS 21 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the General Court. The defendant in error, Lewis Augustine Terrier de Laistre, brought an action of assumpsit against Benjamin de Sobry, executor of Michael Terrier de Laistre, (now plaintiff in error.) The declaration contained four counts: The first for £  4518 17 7 current money, for sundry matters, properly chargeable in an account. The second for money had and received. The third for money laid out, expended and paid; and the fourth for money lent and delivered. The defendant pleaded non assumpsit and plene administravit; to which the general issues were joined.

1. In the course of the trial at October term 1804, the defendant in the court below, offered to read in evidence the testimony returned, with a commission, which he obtained at May term 1800, and which issued on the 22d of July following, to the Island of Martinique. This testimony was copies of the will, and several codicils, made by the defendant's testator, and certain interrogatories and answers thereto by the testamentary executor, which being extracted and translated, are as follow, viz. "Mr. Lewis Augustin Terrier de Laistre, having produced, as a witness, Mr. Dominick Pechier, merchant, dwelling [**2]  in the parish of the Fort of the city of St. Pierre, testamentary executor of the said Mr. Michael Augustin Terrier de Laistre, as appointed by his will, deposited in the hands of Messrs. D. Le Blane and Ciceron, royal notaries public of this island, the 14th of April 1797, we have administered oath to the said testamentary executor, and have interrogated him in the following manner: Inter. Do you know whether the said Mr. Michael Augustin Terrier de Laistre has put into writing his testament, and last will? Ans. Yes. He made an olograph will, of a copy of which I was the depositary in my quality of testamentary executor. To which said olograph will is annexed a codicil, likewise olograph. Inter. Can you say where and when the said will was made? Ans. The said will bears date, Philadelphia 1st April, 1795, and the codicil thereto annexed, bears date Philadelphia, the 29th of June, 1766." "And an attested copy of the said will, and codicil thereto annexed, of the said Michael Augustin Terrier de Laistre, and which we have hereunto annexed, having been produced and read to the deponent, we interrogated him as follows: Inter. Does the paper, which has just been showed to you, express [**3]  the last will and testament of the said Michael Augustin Terrier de Laistre, to the best of your knowledge and belief? Declare all that you know, have heard, or believe. Ans. I know the said paper to be the last will and testament of the said Michael Augustin Terrier de Laistre. Inter. Do you know whether the said Michael Augustin Terrier de Laistre, made in his life-time any other codicils in writing? Ans. I declare that he made three others, of which I was likewise the depositary in my quality of testamentary executor; the first, bearing date St. Pierre, Martinique, the 14th of April 1797, received by Messrs. D. Le Blane and Ciceron, royal notaries of this island; and a supplement of the same day and year, signed by Messrs. Bonifaye and Ciceron; the second, St. Pierre, Martinique, the 25th of April of the same year, received by Messrs. Ciceron and Wanter, royal notaries of this island; and the third, St. Pierre, Martinique, the 10th July 1797, nine days before his death, received by Messrs. Ciceron and Therry, royal notaries of this island.

"And a legally attested copy of these three codicils hereto annexed, being produced and read to the said deponent, we interrogated him as [**4]  follows: Inter. Are the papers now shown to you the last codicils, and do they express the last intentions of the said Michael Augustin Terrier de Laistre? Ans. I declare that the said papers are truly the last codicils and last intentions of the said deceased." Annexed to copies of the said will and codicils, as returned with the commission, are the following certificates, to wit:

"Collated,    Ciceron.

"We, John Augustin Regnaudier, commissioner of the King, and procurer, (attorney,) holding for this purpose the place in the absence of Mr. John Aman Astory, commissioner of the King, titular senichal of St. Pierre, Martinique, certify to all whom it may concern, that the above signature is that of Mr. Ciceron, notary, dwelling in this island, and that faith ought to be given to it as well in courts of justice as thereout, and to all that he signs in that quality. In testimony whereof we have signed these presents, and thereto fixed the seal of this colony, where stamped paper is not in use. Given in our hotel at St. Pierre, Martinique, the 20th July 1801.     Regnaudier.

[L. S.] Sealed at St. Pierre, Martinique the 20th July

1821.     Jacquier."

The [**5]  plaintiff objected to these copies being read in evidence, because they were not legally proved and certified.

CHASE, Ch. J. The court are of opinion, that the certificate of the colonial officer of the signature of the notary public, is sufficient to authenticate the copy of the will, and that the same is sufficiently proved, and may be read in evidence to the jury.

2. The defendant also offered to read in evidence the commissions which issued in June 1803, to Paris, Martinique and Bourdeaux, and the returns of those commissions made at May term 1804; but which were objected to by the plaintiff, because the commissions had not been regularly issued. The facts were, that on the docket of the court at May term 1803, the entry is "commissions are ordered by consent, on the part of the defendant, to Paris, Martinique and Bourdeaux, on striking commissioners; if the commissions are not returned at the next term, it will then be no cause of continuance." "The defendant's commissioners struck the 18th June 1803, (Saturday.) See their names mentioned in a paper filed." On that paper, in the hand-writing of the attorney general, (one of the attorneys for the defendant,) after naming [**6]  four persons as commissioners to each place, is as follows: "An order for commissions to our commissioners, unless plaintiff strikes commissioners on Monday," (the 20th June.) There was no order made in the docket or in the minutes of the court. The court met on Monday the 20th June for the purpose of making some few entries. The jury had been discharged on Saturday the 18th June. The plaintiff, and his counsel, and the counsel of the defendant, left the court for Baltimore on Saturday. The defendant remained, and on Monday the 20th June, he obtained his commissions from the clerk. Neither the plaintiff, nor his counsel, had any notice of the names of the commissioners struck by the defendant, nor of the order intended to be obtained for the striking commissioners on the part of the plaintiff. Defendant, after obtaining the commissions, went to Baltimore, where interrogatories were prepared to be forwarded with the commissions. The interrogatories and commissions were taken to the plaintiff's counsel, and a proposition made to him to strike commissioners, if he did not approve of those persons to whom the commissions had issued, so that new commissions might be obtained. The plaintiff's [**7]  counsel alleged that his client had left Baltimore for Elizabeth-Town in the state of New-Jersey; that he did not himself know of proper characters, nor would he consent to any thing, but would take all legal advantages. It was then proposed, (as stated on the part of the defendant,) that the counsel should write to the plaintiff, and the defendant would wait, and retain the commissions until he should hear from the plaintiff; but this was declined by the plaintiff's counsel, and the commissions were forwarded. But on the part of the plaintiff, it was stated, that the defendant proposed to wait one post, which the plaintiff's counsel observed would not answer, as he could not hear from the plaintiff in that time.

CHASE, Ch. J. The court consider the order as not done in the usual form for striking commissioners; but it appears to have been done in the hurry of business at the rising of the court. Time ought always to be given for striking commissioners; and an order of court for that purpose should have been made. In this case the order is general, that the commissions were to issue on commissioners being struck. It should therefore be executed in a reasonable time. The commissions [**8]  issued precipitately, without sufficient time to the plaintiff to strike commissioners; and if the case depended solely upon the docket entries, it would be considered as irregular. But upon the disclosure of facts stated in the affidavits, it appears that the plaintiff's counsel had an opportunity given him of striking commissioners. If the court had made an order, they would not have allowed more than five days for striking commissioners. The defendant, it appears, offered time--"one post." Here, too, is a material fact in which the affidavits do not agree. The defendant's attorney's affidavit states, that no specific time was proposed, but generally that the defendant would wait an answer from the plaintiff; but the plaintiff's attorney's affidavit states that the time was limited to "one post." The court, however, suppose this time was sufficient to obtain the names of commissioners, situated as the parties were. The irregularity of issuing the commissions was cured by these circumstances. Every thing which tends to bring the justice of the case before the court ought to be done. These commissions were returned to the last term, when this objection might have been made; and if [**9]  the commissions had been considered by the court as having issued irregularly, they might have been suppressed, and the defendant would have had time to issue new commissions, upon the same terms as the former, "that if they were not returned at this term it would be no cause for a continuance." But if they had been considered as illegally issued, and if the plaintiff thought that the commissions had been improperly executed, he had then an opportunity of counteracting them, by obtaining at that time new commissions upon the same terms the defendant had obtained his; for it is an established rule of this court, that upon the return of a commission, the opposite party has a right to a continuance of the cause until the next term. For these reasons the court are of opinion, that the commissions, and the testimony taken thereunder, ought to be read to the jury.

3. The first bill of exceptions. The plaintiff gave in evidence, that he is the eldest son of Michael, the defendant's testator. He also read to the jury two original letters from his father to him, dated at Bourdeaux, in France, and addressed to him at Paris, in France, one dated the 21st of May 1793, wherein the testator [**10]  acknowledged that he had received a sum of money for the plaintiff, and as he could not invest it, he proposed to take the sum of 12,000 livres himself, at 5 p. c. interest; and the other letter, dated the 1st of August 1793, acknowledging that he had received for the plaintiff 28,000 livres from Mrs. Aubin. He also offered in evidence, that sometime in the year 1794, the testator, and the plaintiff, came to Philadelphia, where or near to which the testator resided till the 6th of April 1796; and that the plaintiff, from the time of his arrival at Philadelphia, until the present time, hath always resided within the U. S. He also read in evidence a memorandum, in the hand-writing of the testator, made in a memorandum book kept by him, which memorandum bears date on the 30th of September 1795, and is as follows, viz. "The four servants given to my eldest son by his marriage contract, to wit:

________________________________________________________________________________
Bruno, a mulatto, hair-dresser, estimated at	4500	
Antoine, my domestic hair-dresser,		3000	
	
	Liv. 7500	
Both of whom are dead.	
Noel, a cook--sold,	2850	
Maydelon, a washer-woman,	2000	
		4850	
	
		12860	
________________________________________________________________________________

N. B. He returned to me the above mentioned [**11]  four servants on his departure from Martinique; for which said servants, as well as for the sum of 40,000 livres, which he caused to be delivered to me at Bourdeaux, before his departure for North America, my estate is responsible to him." He also read in evidence a letter from the testator to him, bearing date at Philadelphia, on the 22d of May 1795, and addressed to him at Trenton, viz. "I have not yet been able to employ myself in making use of the bill of exchange of 170 dollars, (3440 livres,) on Havre, but I will attend to it as soon as my health permits me to go out." Also another letter from the testator to him, bearing date at Philadelphia, on the 15th of October 1795, and addressed to him at Trenton, of which the following is an extract:--"I remitted to St. Claire Claudel your bill of exchange, drawn by Moisy, for 170 dollars, (3440 livres,) that he might receive payment and pass it to the credit of my account." He also gave in evidence, that all the afore-mentioned letters, and the memorandum, are in the hand-writing of the testator, and that the letters were by him transmitted to the plaintiff, and duly received, according to their respective dates and addresses; and they [**12]  were offered and given in evidence, to prove the debt due to the plaintiff, for which this action is brought, as stated in the account by him filed. He also gave evidence that the several sums of livres mentioned in the said letters and memorandum book, were of the value of, and amounted in the whole to the sum of $ 9628 63 current money of the United States; and that the usual and legal interest of money in France, and her colonies, was at the times aforesaid five per centum. He also gave in evidence, that the testator departed this life on or about the 20th of July 1797, and that the defendant, as his executor, did, in the month of October in the same year, receive into his hands money belonging to the estate of the deceased to the amount of $ 13,092 68 current money of the U. S. out of which he claimed an allowance for disbursements and commissions, to the amount of $ 1200 07 like money, leaving in his hands, subject to the legal claims against the estate of the deceased, the sum of $ 11,892 61 current money. The defendant then gave in evidence, that the testator, in his life-time, duly executed certain wills and codicils, which were made and executed respectively, at the respective [**13]  times and places therein respectively stated, viz. "I Michael Augustin Terrier de Laistre, aged 61 years, generally resident in St. Pierre, in the Island of Martinique, but now at Philadelphia, in Pennsylvania, one of the thirteen United States of America, being desirous of making known to my children my final intentions, have made and written, with my own hand, this my last will and testament, to which I particularly enjoin my eldest son to manifest his respect by an exact performance of its contents; hereby revoking all former wills and codicils by me at any time heretofore made, and declaring this to be alone good and valid." The bequests material to the question in controversy, are the following: 7th. "I give and bequeath unto my natural son Chery, now about twelve years of age, and raised from his childhood at St. Pierre, in Martinique, by Madame Duquesnay, the sum of fifty thousand livres, colonial money, payable on the partition of my estate, unless it should please better my heirs to admit him as co-heir, conformably to the tenor of the acts passed by the national assembly in favour of illegitimate children; then and in such case, I will and direct that he have his proportionable [**14]  share, according to the right vested in him by law, if my heirs do not choose rather that the said sum of 50,000 livres should be paid him out of the surplus of my estate, after payment of debts, &c. Enjoining him moreover to continue to bear the name of Chery Terrier." 10th, "I hereby constitute and appoint Anthony Viau, my agent at present in Martinique, executor of this my last will and testament," &c. "And in case of the death or absence of the said Anthony Viau, I constitute and appoint, in his place, my friend Mr. Crassous, merchant of Martinique, begging him to accept this charge, with the same indemnification as aforesaid, and thereby give me this last mark of friendship." 11th. "As to all the rest and residue of my estate, whether real or personal, debts due me, &c. which I may leave in America, I constitute and appoint Messrs. De Saa, father and son, executors thereof, to administrate on that property only of which I may die possessed in America, conformably to my intentions expressed in this my last will and testament, of which I have left them an authenticated copy." 12th. "I hereby name and constitute my eldest son, Lewis Augustin Blaise Terrier de Laistre, as an heir [**15]  in my succession; and I also will and direct, that after my decease, a true and faithful inventory be made of all my property, out of the amount of which property, all the bequests generally expressed in the present testament shall be faithfully discharged; and in case Anthony Mark Terrier de Laistre, younger brother of my said eldest son, should not please to divide with him the estate of their mother, conformably to the schedule I have annexed to this my last will and testament, in which schedule his moiety is clearly designated, but should choose rather to recur to the general inventory which will be made after my decease, then and in such case I will, and most expressly direct, that the sum of 40,000 livres, reserved from the portion brought by me in my marriage contract, and also the sum of 2,000 livres, which I am entitled to claim and receive from my wife's estate, by virtue of the said marriage contract, the said sums amounting in all to the sum of 42,000 livres, be deducted and reserved for my grandchild, Augustin Paul Emile, son of my eldest son, who shall possess and enjoy the same on the surety of his judicial oath, until his said son Augustin Paul Emile attain the age [**16]  of 21 years, or be married; and in case this reserve should give rise to any legal difficulty, I then give and bequeath, purely and simply to my said grandchild, the sum of 42,000 livres, to be employed and disposed of as above directed, and payable out of the surplus of my estate, after all my debts, and the bequests herein contained, shall be discharged. Authorizing, moreover, by these presents, my eldest son to renounce my succession, and retain the portion brought by him in this marriage contract, without returning any thing to the general stock; he also claiming from my estate all that I lawfully owe him; whether for the different sums which, on my last voyage, he caused to be paid me in France by Madame Aubin, or, for the four domesticks I gave him by the said contract, and which, before his departure from Martinique, he delivered for my account and risk to Mr. Viau my attorney. 13th. "I constitute and appoint, as heir of my succession, my youngest son, Anthony Mark Terrier de Laistre, whether he prefers to rely on the partition of the property possessed in common by his mother and myself, according to the statement I have subjoined to this my last will and testament, in which [**17]  his portion of the maternal estate is distinctly marked out, or chooses rather to recur to the general inventory to be made after my decease, out of which his portion will be ascertained by law. I also will and direct, that the share accruing to him from my estate, shall consist of immoveable property, and my will and meaning is, that the said immoveable property be not aliened by him under any pretext whatever, in order that it may descend to his issue, and in default of such issue, be equally divided among the children of his elder brother; this disposition not being regarded as an entail, but as a prudential and safe mode of securing some part of my estate to my grandchildren." 14th. "As the laws recently promulgated by the republic on the subject of inheritances, restrain the testator from the free disposal by will of more than one sixth part of his possessions, and allot the residue, the remaining five fifths, to his natural heirs; and as it is impossible for me to ascertain at this juncture the amount of my property, I will and direct, that in case my two legitimate sons, or any one of them, should choose to adhere to the precise letter of the law, in opposition to the dispositions [**18]  contained in this my last will and testament, then and in such case, that my natural son Chery, already a particular legatee by these presents, and my four natural daughters called Adelaide, Mariette, Rosette and Marguerite, also legatees as aforesaid, be all five called in as co-heirs in my succession, each respectively renouncing to his or her respective legacy, and drawing from my estate such proportionable share as the law allows. And, as for the one-sixth of my property, of which I may freely dispose, I will and direct that as soon as it is determined by the inventory, the amount of the bequest made to the mestive Sophia, be deducted therefrom, and paid her in full, with all possible dispatch, which bequest I hereby confirm and ratify. And I also will and direct, that the surplus of the one-sixth, after such deduction made, be divided among the other legatees named in this my last will and testament, such share accruing to each as is proportionable to the amount of his or her respective legacy." "Such are my last desires clearly expressed in the present testament, written with my own hand, and which I fully confirm and ratify, after having attentively perused and reperused the [**19]  same. Done and signed by triplicate, and one copy to be deposited with Messrs. De Saa, father and son, appointed by these presents my executors for the administration of that alone of which I may die possessed in America; a second transmitted to Martinique, to be there lodged with a notary; and a third enclosed in my port folio, all three copies being sealed with three seals, bearing the stamp of my cypher, as may be seen in the margin, at Philadelphia, in Pennsylvania, one of the thirteen United States of America, this first day of April, in the year of our Lord 1795." A codicil, revoking the legacy to Sophia, confirming and ratifying all other parts of his will. Signed 29th of June 1796.     "Terrier de Laistre."

"Last will and testament of Michael Augustin Terrier de Laistre, done in the presence of Messrs. Ciceron & Le Blanc, notaries of St. Pierre, in the Island of Martinique. On this 14th day of April 1797, about 11 o'clock in the morning, we the undersigned notaries attended Michael Augustin Terrier de Laistre, chevalier, &c. resident in the city of St. Pierre, &c. aged 64 years, lawful son of, &c. who being confined to his bed, infirm of body, but of sound and disposing [**20]  mind, as it hath appeared to us by his several questions and observations, and wishing to arrange his temporal affairs before the moment of his death, which is uncertain, requested us to receive the subsequent codicil and expression of his testamentary desires, which he dictated word for word in the following manner:" The bequests material to be mentioned are the following: 8th. "The said testator gives and bequeaths unto his natural son Cheri, about 15 years of age, and raised from his infancy in this island by Madame Duquesnay, the sum of 50,000 livres colonial money, to be appropriated to his subsistence and education; begging his executor hereinafter named to transmit the funds requisite for the payment of the said sum to Mr. Benjamin De Sobry, merchant of Baltimore, who has had the goodness to act the part of a father towards him during the absence of the testator; entreating him therefore to continue the same parental care, and with the sum which he bequeaths to the said Cheri, to place him in a situation that may ensure to him a life of tranquillity and ease; enjoining moreover his said natural son to continue through life to bear the name of Cheri Terrier. The said testator [**21]  also gives and bequeaths to the said Cheri his wardrobe, rings, jewels and private fire arms, which shall be found belonging to him after his decease; reserving only from the number of his jewels his diamond cypher and repeating watch, of which he has disposed by his will of the 1st of April 1795. Hereby ratifying and confirming the said disposition." 11th. "The said testator gives and bequeaths unto his friend Benjamin De Sobry, merchant of Baltimore, all his moveables and effects, of what nature soever, of which he may die possessed in America; and also whatever he may discover to be due to him; charging him, however, by these presents, with the payment of his debts in the said continent, [dans le dit continent,] if any there be: Hereby also fully empowering him, as well to recover whatever may be due to him, as to discharge his debts aforesaid, without being held accountable for the said effects to any person whatever." 14. "The said testator names and institutes, as his heirs in his said succession, his eldest son, Louis Blaise, as well as his younger, called Anthony Marc Terrier de Laistre; hereby constituting and appointing them his universal legatees for equal shares in his [**22]  said succession; strenuously recommending to them to preserve harmony between themselves, and respect for the present codicil, which the said testator wills and directs should be fully executed in all and every part. And his will and meaning also is, that the part and portion of that one of his said sons, who shall first die without issue, shall remain to the survivor." 15th. "The said testator hereby constitutes and appoints, as his executor, Dominick Peschier, merchant of the city of St. Pierre, of whom he earnestly requests this good office. And in consideration that the function of executor is necessarily attended by some trouble and derangement, he begs him to accept the bequest which he now makes him, of the sum of 13,200 livres colonial money, which said sum he may take before the delivery over of his succession to the heirs; the said testator dispossessing himself of all his estate, in order to invest him with the same, from the day of his decease, conformably to custom." 16th. "The said testator revokes all other wills and codicils by him heretofore made, declaring this alone to be good and valid, as well as his will and testament, written with his own hand, of the 1st of [**23]  April 1795, fully ratifying and confirming the same, and all the gifts, bequests, matters and things, therein contained, except only the changes made and designated in the present codicil; and the said testator also wills and directs, that the said testament shall be joined to the present codicil, to be returned into his hands whenever he shall please to demand the same, which has been regularly marked ne varietur, by the above mentioned notaries." "Done," &c.

Signed,

Terrier de Laistre.

Ciceron & Le Blanc, Notaries.

Collated,     Ciceron."

Other codicils of the 14th April 1797, 25th of April 1797, and 10th July 1797, making some trifling alterations, and confirming other wills and codicils not altered, &c. The defendant also gave in evidence, that the executor testamentary therein named, that is to say, Dominique Peschier, residing in the Island of Martinique, did take upon himself, after the death of the testator, the burden of the execution of the wills and codicils, according to the laws of the French government, in force and effect in that island; and that he did on the 24th of July 1797, write to the defendant a letter, and send the same with a copy [**24]  of a certain part of the will or codicil, dated the 14th of April 1797, to enable the defendant to carry into execution that part of the will in which the defendant was interested. The defendant also gave in evidence, that Peschier did, on the 4th of January and the 15th of December 1798, write letters to the defendant, and send the same, of which the following are true translations: That of the 4th of January 1798, is as follows: "I am glad to see by your's that you had duly received my letter of the 24th of July, which informed you of the death of Mr. Terrier de Laistre, (of whom I was the executor,) and forwarded you a copy of the articles of his last will and codicils, which concern you, and his son Chery, whom he recommends to your good cares. An inventory has been made, in legal forms, of all the credits and debits: But the latter cannot be perfectly known, because the deceased had many friends in France, with whom there are accounts to settle, and which cannot be done by reason of the war. It results, that the net amount of the estate cannot be ascertained, of course the inventory is imperfect, and cannot be rectified till after the war. Messrs. Terrier de Laistre have taken [**25]  the quality of conditional heirs, and have lately applied for a delay of six months, which has been granted to them. After its expiration they will probably ask for more time, which will also be granted; and this will go on until the return of peace. Until they take a determination on the subject, I cannot dispose of any thing. All the furniture and effects which are coming to young Chery, have been inventoried and shut up in a cupboard. Whatever may happen, the estate is good, but the heirs wish to be perfectly acquainted with it. They have told me that they are well disposed to fulfil the will of their father, if they are not too much injured. The law grants them the option to have the community of their mother continued to the death of their father, because he had not made a legal inventory, they wish to know which is more advantageous to them, either to have the community continued, and to receive their legitim, or to take the quality of heirs. This is the actual state of the business. I am going on with the liquidations in collecting the debts, and paying what is legitimate." The letter of the 15th December 1798, states that the inventory, on account of the war, had not been completed;  [**26]  and it also stated, that "the heirs moreover, (one of whom, Mr. Terrier de Laistre the younger, is now here, and represents his brother, who is on your continent, and who has sent him his power,) being desirous to administer their properties themselves. These considerations, and the impossibility to know how long it will require for the liquidation; I say, that actuated by all these reasons, I have rendered my accounts to the heirs, who from that time, administer their properties themselves. I have already informed you, that these gentlemen oppose the execution of the will, so far as regards the legacies, and that the suit is going on. Mr. Duquesnay has by a decree of the court, been nominated guardian to the young Chery, and defends his interest in that quality. It is necessary to go on with the suit, and wait for its conclusion, in order to abide by the judgment." He also gave in evidence the proceedings in the orphans court of Baltimore county, upon the exhibition and proof of that part of the codicils and wills of the testator, being the 8th and 11th clauses in the will or codicil of the 14th of April 1797, as herein before mentioned, with a direction thereto annexed by the testator,  [**27]  requiring certain persons, in whose hands some of his effects were, to deliver the same up on notice of his death, to the defendant, and proof thereto, and to the extract of his will annexed, of the hand-writing of the testator. Upon which letters testamentary were granted to the defendant on the 15th of November 1797, and which letters testamentary the defendant also gave in evidence to the jury. He further gave in evidence, that the testator was a native of the kingdom of France, and for many years before his death was a citizen of the Island of Martinique, and resident of that Island, which was, during the whole time that he there resided, until his death, and at the time of his death, subject to, and governed by, the same laws as the other Islands of the West Indies dependant on the government of France. That the testator came to the U. S. on the 6th of November, 1793, and left the U. S. to return to the Island of Martinique, on the 6th of September 1796, and that having arrived at that Island, he departed this life, at that place, on the 19th of July 1797. That the sum of 12,360 livres, money of the Islands, which constitutes the first charge in the plaintiff's account, is the [**28]  estimated value of four slaves, which were delivered by the testator to his son, the plaintiff, as a part of his marriage portion, and which were, by the plaintiff, again returned to the testator, some time about the year 1792. That the plaintiff was not entitled, by the French laws regulating this question, to claim either that sum, or interest thereon, or any part thereof, as the creditor of his father, or of his father's estate, unless he absolutely and entirely repudiated and delivered up the succession, and his right as heir, after his father's death, and renounced all right in, and claim to, the succession of his father; and that the plaintiff had not so done. That the sum of 12,000 livres, in the account mentioned, was lent by the plaintiff to the testator, and at his instance received by the testator in assignats, at their nominal value, and not in specie, and that assignats at that time were only in comparison of specie, valuable in proportion as 44 to 100; and that the sum of 28,000 livres, in the account mentioned, was lent by the plaintiff, in France, to the testator, and by him received in France in assignats, and not in specie, at the nominal value of assignats, and that [**29]  assignats, at the time of this loan, were only of value compared with specie as 33 to 100, and that the sum of 12,000 livres were advanced to the testator on account of the plaintiff, the 21st of May 1793, or thereabout, by Madame Aubin Blampre; and the sum of 28,000 livres by the same lady to the testator, on or about the 1st of August 1793; and that the plaintiff did afterwards repay the same advances to her in assignats, at their nominal value, and not in specie. That according to the French laws operating upon and regulating the said loans, the plaintiff is not entitled to receive interest of any kind thereon, or on either, except from the time of bringing this suit. And as to the claim in the account of 3,440 livres, the defendant gave in evidence, that one Moisy, being indebted to the plaintiff in the sum of $ 170, drew a bill in favour of the plaintiff upon his, the drawer's correspondent, in Havre-deGrace, to be there paid in assignats, at the exchange of 20 livres for each dollar, and that the same being indorsed by the plaintiff, was delivered to the testator to be remitted to his correspondent in France, to receive from the person upon whom the bill was drawn the amount [**30]  thereof in assignats, and that for want of proof being furnished by the plaintiff, that he had left France with proper passports, and had resided constantly in the United States, and that the plaintiff was not subject to the laws of the French government against emigrants, the correspondent of the testator never received any payment of the bill, and that the testator received no part thereof, but that the bill yet remains unpaid in the hands of the person to whom it was remitted. He further gave in evidence the settlement made by him in the orphans count of Baltimore county, whereby it appears that he charges himself with the receipt of $ 13,092 68 current money, received of the effects of the testator, and credits himself with $ 1,200 07 like money, for disbursements, debts, &c. by him paid, and for which he is allowed, leaving the sum of $ 11,892 61 like money, in the hands of the defendant, and which he retains, being left him by the deceased's will. That the sums with which he charged himself in the account, proceeded from the sales of divers goods, wares and merchandise, which were in the U. S. when the testator died, and from certain debts which remained due in the U. S. to the [**31]  testator, and from remittances of property which he made after his arrival at Martinique. That several claims of considerable value which the testator had against persons in the U. S. when he departed therefrom to return to Martinique, and which the defendant was authorized by him to receive, were afterwards paid to or settled with the testator himself, after he went to Martinique, and therefore did not come into the hands of the defendant, but went to increase his estate in the Island of Martinique; and to establish the same, the defendant offered in evidence, a letter written by the testator to the defendant, bearing date at Marlinique, on the 20th of March 1797. The defendant also offered in evidence, the different remittances and funds remitted to the testator while in the U. S. including the merchandise received by Anthony Butler; the remittances made by him to his creditors while in the U. S. his expenditures while there, and the sum he carried from hence when he left the U. S. and to show and prove the same, offered in evidence certain extracts from the memorandum book produced by the plaintiff, in the handwriting of the testator, viz:

________________________________________________________________________________
"My general account in the continent	Dr.	
1795.	
June 25.	Balance of 4 Bills of Exchange for	
	   my adventure,	$ 3,198 35/100	
1796.	
June 18.	To Duvall Monville, received for his	
	  account by a bill of Mrs. Auguart,	
	  his sister,	792   	
July 23.	To Viau, net amount remitted by	
	  him as appears, &c.	4,586 53/100	
	
		$ 8,576 88/100	
	
________________________________________________________________________________

 [**32]  

________________________________________________________________________________
1795.	Cr.	
Dec. 31.	By 13 months expenses, as appears	
	  by the particulars.	$ 1,225	
1796.	
Sep. 30.	By 9 months  do.	do.	   936	
	
	For 22 months expenses,		$ 2,161	
	By remittance to St.	
	   Claire,	  800	
	By do. to Ollie,	2,400	
	By do. to Eyma,	  800	
	By do. to Dancemont,	  124 10/100	
			  4,124 10/100	
	For advances to divers,	
	To Deville, junr.	  370	
	To Mrs. Luppi,	  533	
			   903	
	Furnished to divers,	
	To Chery,	  593	
	To De Laistre,	  722	
			  1,315	
	For my passage 50, for my	
	  expences 3 38/100	  53 38/100	
	Carried with me in specie	  20	
			   73 38	
	
			$ 8,576 88/100	
________________________________________________________________________________

Concluded at Baltimore, this 5th Septem. 1796, until the end of September."

The defendant also offered evidence to prove, that there was a debt due from the plaintiff to the testator, at the time of his death, amounting to the sum of 111,537 livres, 13 sols and 4 deniers, money of the Island of Martinique, which sum of money, at the time above mentioned, was of the value of $ 13,519 63 current money of Maryland, which ought to be deducted from and set off against [**33]  any thing which might be due from the testator's estate to the plaintiff, even if he had any claim which as a creditor he could sustain or support. He further gave evidence, that Pechier did, on or about the 7th of July 1798, deliver over to the plaintiff, and his brother, Mare Anthony Terrier de Laistre, as heirs of the testator, the succession of the testator, and the papers relative thereto; and that the plaintiff, and his brother, have since had the same under their management, and in their possession; and that the plaintiff hath intermeddled with the estate, and acted in respect thereof as heir; and also that the succession or estate of the testator is not insolvent. He also offered evidence to prove, that the acknowledgment entered in the books and papers of the testator, produced by him, of the sums for which his succession ought to account to the plaintiff, or in the French language "dont ma succession doit lui tenir (ou faire) compte," only admits that such sums are to be settled with the plaintiff out of the estate real, personal and mixed, which he should leave at the time of his death, according as the laws of France, regulating the Island of Martinique, and there used [**34]  and in force, authorizes and directs. He also gave in evidence, that the devise to him is not expressed to be under any secret trust. That to prove a devise to be a secret trust, by the French laws, the testimony of witnesses cannot be admitted; but that the supposed secret trustee is to answer, upon oath, whether he has lent his name or not, directly or indirectly. That according to the French laws, regulating this case, the plaintiff has no interest or rights against the defendant, either as a debtor or legatee of the testator, or as debtor of the testator's estate, which he as a creditor, or in any manner, can enforce, unless the plaintiff had first solemnly repudiated and given up his right of inheritance to the succession, and had renounced all right as heir to the succession; and that the term "succession," in the French laws, means the whole estate real, personal and mixed, of every nature and description, whereof a testator dies seized or possessed. That the Island of Martinique, and the citizens thereof, are subject to, and regulated by the laws mentioned in the execution of the respective commissions which issued in this cause; and that the law is as stated in the respective [**35]  commissions, by the witnesses examined on the execution of those commissions upon the legal interrogatories put to them on the execution of the commissions respectively; which interrogatories and answers thereto he offered in evidence. He also offered evidence, that the plaintiff, soon after the death of the testator, went to the Island of Martinique, and was residing there about a year. That no insolvency of the succession of the testator can be proved or established, so as to admit suits to be supported upon the grounds of an insolvency, unless the estate has been liquidated and settled by regular judicial proceedings in a court of justice, where the accounts are settled, and the insolvency shown, and that any person, who is to be affected by the insolvency, may, upon suit being brought against him, to be supported, in consequence of that insolvency, contest the same upon the trial, unless he was a party to the judicial proceedings establishing the insolvency, and had there an opportunity of being heard, and of contesting those proceedings. That the testator was indebted to divers persons in France, for debts contracted, in assignats, and otherwise, which were in his power to repay [**36]  in assignats, which had become greatly depreciated; that in order to pay off his debts aforesaid, with the least sum possible, and thereby render his succession the more valuable to the plaintiff, and his other son, his heirs, he solicited the said remittances to be made to him, while in the U. S. and endeavoured to have property transferred to him, to employ the same, as far as there should be a surplus after his own support, to make remittances to France to pay and discharge those debts; and that the said remittances were not endeavoured to be procured, or his property sought to be transferred, to the U. S. to dispose of it contrary to the laws of France. He also gave in evidence what were the remittances the testator received in property, or other ways, while in the U. S. and that they were expended in the support of himself and family while in the U. S. and in remittances for payment of his debts. That assignats was a species of paper money, or paper currency, issued under the authority of the French government, since the commencement of the French revolution, at different times, and which, when issued, were, or since being issued became, of much less value than gold or silver [**37]  current coin, and that rating the value of dollars with livres in specie, the dollar in specie is equal to five livres tournois and five sols; whereas the dollar in specie has been, and is worth much more than the same number of livres tournois in assignats, according to the different state of depreciation of assignats. The plaintiff then, to prove that the French laws cannot apply to, or operate upon this case, gave in evidence, that the defendant took out letters testamentary in this state upon the estate of the testator situated therein, and that the money received into his possession, as above set forth, and belonging to the estate of the deceased, was money lodged by the deceased, in his life-time, in the U. S. and that the money, or goods and merchandise, from the sale of which it arose, was withdrawn from the French dominions by the testator in his life-time, and lodged in the U. S. for the express purpose of evading the laws of France and Martinique, and of disposing of them by his will to the prejudice of the plaintiff, and in such a manner as those laws expressly forbid. And the plaintiff also gave in evidence the will of the testator, proved by the defendant in the orphans [**38]  court of Baltimore county, on which letters testamentary were granted to him by that court. The plaintiff, to prove that the debt for which this action is brought is an American debt, and not subject in any manner to the operation of the French laws, gave in evidence, that the two sums of 12,000 livres and 28,000 livres, amounting to 40,000 livres, received from the plaintiff by the testator, through Madame Aubin, in Bourdeaux, were obtained from the plaintiff by the testator, under an expectation held out by the testator of his employing them beneficially in the purchase and exportation of merchandise for the benefit of the plaintiff, and that the sum of 34,925 livres, part of the 40,000 livres, were actually invested in the purchase of merchandise, by the testator in France, on the 29th of December 1793, and that the merchandise was on that day actually shipped by the testator to Philadelphia, and did arrive at Amboy, in the state of New Jersey, on or before the 22d of May 1795, and were there received by the testator into his possession, and sold and disposed of for his own use and benefit, about that time. He also offered in evidence, that the sum of 40,000 livres, lent by him [**39]  to the testator, were by him received with a view to the removal of the testator, and of the plaintiff, to the U. S. and to the repayment of the loan in the U. S. And for that purpose he gave in evidence a part of the will of the testator, made at Philadelphia on the 1st of April 1795. He also gave in evidence the aforementioned memorandum, bearing date on the 30th of September 1795; and proved that it was made in Philadelphia, in the U. S. and that at the time of making the memorandum, and also the will of the 1st April 1795, the plaintiff resided within the U. S. and was then known by the testator so to reside. And also to prove that the debt due to the plaintiff by the testator, as acknowledged in the will of the 1st of April 1795, and by the memorandum of the 30th of September 1795, was on the 14th of April 1797, a debt due in the U. S. within the legal meaning and operation of the eleventh clause of the will of the 14th of April 1797, and therefore chargeable on the legacy left to the defendant by the eleventh clause, the plaintiff gave in evidence, that from the 1st of April 1795, until the 14th of April 1797, and on those days respectively, the plaintiff constantly resided within [**40]  the U. S. and was on those days, and during the whole of the period between them, known by the testator to reside in the United States; and that the words "in the said continent," or "dans le dit continent," in the eleventh clause of the will of the 14th of April 1797, mean and were intended by the testator to express, "within the United States." The plaintiff, to prove that by the French laws, if applicable to this case, he cannot be prevented from recovering in this action, gave in evidence, that by the laws, "as no man can bestow on another that which does not belong to himself, therefore every species of debt due by a testator, even those least favoured, is preferred to every species of bequest by will;" and that by those laws an heir, with benefit of inventory, who is also a creditor of the deceased, to whom he is an heir, may recover his debt, and also receive his portion of the estate; and that the children of a deceased person, or any of them, may by the said laws require that an inventory of the estate be made and completed, and that they be allowed a reasonable time, to be settled by the courts of competent jurisdiction after such completion, to make up their determination [**41]  before they elect to renounce the inheritance altogether, or to take it as heirs with benefit of inventory, within which time they may elect to take the inheritance as heirs, with benefit of inventory, whereby they do not lose their rights as creditors. And to prove that the plaintiff is heir of the testator, with benefit of inventory, and hath done no act whereby he could be rendered heir pure and simple, according to the said laws, the plaintiff gave in evidence, that he hath not in any manner intermeddled with the estate of the testator in the Island of Martinique, nor received any thing therefrom as heir, and that the administration of the estate hath always remained in the hands of, and been conducted by, Dominick Pechier of that island, the executor appointed by the will of the 14th of April 1797, who hath made an inventory of the estate conformably to the laws of that island; and that the estate in the island is wholly insolvent, and unable to pay the debts chargeable thereon. That by the French laws, interest is chargeable on all mercantile debts and transactions, and on money lent for the purposes of commerce, from the time of such loans respectively. The plaintiff, to prove [**42]  that the defendant cannot be considered as a legatee under the French laws, and the laws of the said island, admitting those laws to apply to this case, and to operate upon it, and therefore cannot avail himself of the character of legatee by way of defence in this action, gave in evidence, that by the said laws any legacy given to an illegitimate child, either directly or by a declared trust, to the prejudice of the legitimate children of the testator, is void, except as to such part of such legacy as the courts of the place shall determine to be a reasonable subsistence for such illegitimate child, in proportion to the extent of the estate, and other circumstances; and that by the said laws all legacies given upon a secret trust, for whatever purpose, are absolutely void. And the plaintiff also gave in evidence, that the legacy given to the defendant, in and by the will of the 14th of April 1797, was given on a secret trust for the benefit of a certain Cheri Terrier, an illegitimate son of the testator, and to the prejudice of the plaintiff, his legitimate son. The plaintiff, to prove that the will of the 14th of April 1797, and the legacy claimed by the defendant under that will,  [**43]  have been and are annulled, and wholly set aside by a court of competent jurisdiction in the Island of Martinique offered to read in evidence an exemplification of a judgment or sentence rendered by the supreme court of that island, which exemplification purports to be attested under the hand and official seal of the grand judge of the island, and is as follows: "7th of May 1801. George the third, by the Grace of God, King of England, &c. &c. To all present and to come, greeting. Between Messrs. Terrier de Laistre, brothers, beneficiary heirs of their father, appealing from the sentence rendered in the Senechausse of St. Pierre on the 20th March last, on the one part, and Mr. Duquesnay, as well in his own name, being a donatee of his late wife, who was a private legatee of the late Mr. Terrier de Laistre, as acting tutor for the minor Chery, private legatee of the said Terrier de Laistre, defendant, on the other part, and also Mrs. Pigache, residing in St. Pierre, and Mr. De Sobry residing in the United States of America, defendants likewise, on the other part. And between Mr. Duquesnay in his quality of a donatee of his said wife, who was a private legatee of the late Terrier de Laistre,  [**44]  appealing from the same decree, as to the main part thereof which condemns him to the costs, on the one part, and the said Terrier de Laistre, brothers, defendants, on the other part, and also Mrs. Pigache and Mr. De Sobry, likewise defendants, on the other part. And also Mr. Duquesnay, in his quality of tutor for the minor Chery, also appealing from the said decree, on the one part, and Messrs. Terrier de Laistre, brothers, in their said quality, defendants, on the other part, and also Mrs. Pigache and Mr. De Sobry, likewise defendants, on the other part. And also between Mrs. Pigache, appealing also from the same sentence, as to that part which has condemned her to the costs only, on the one part, and the said Terrier de Laistre, brothers, defendants, on the other part, and also the said Mr. Duquesnay, as well in his own name as in his quality of tutor for the minor Chery, and M. De Sobry, defendant likewise, on the other part. Seen, &c. &c. The court having heard the king's attorney general, acting in his conclusions, and Mr. Ducaurroy, counsellor, in his report pronouncing upon the appeal of the said Mrs. Pigache, and of Mr. Duquesnay, as well in his own and private name, as in [**45]  his quality of tutor for the minor Chery, have annulled the said appeal with fine and costs. And pronouncing likewise on the appeal entered by Messrs. Terrier de Laistre, brothers, have annulled both the appeal and the object thereof--enacting and stating, as well upon the conclusions taken by them in the main action, as upon those of the appeal--Declare the testament and codicil of the late Terrier de Laistre, of the 1st of April 1795, 14th April and 10th July 1797, to be null and of no effect; in consequence, reject the demand in delivery of the legacies made to them by the said testament and codicil, and the costs, notwithstanding, to be paid out of the mass of the estate. Ordain, &c. Done in the Sovereign Council of Martinique, on the 7th of May 1801. Delivered the present exemplification to citizen Dominique Pechier, merchant in St. Pierre, as executor of citizen Terrier de Laistre, at his request, on this 13th day of Germinal, 12th year of the French Republic, or on the 3d April 1804, (old style.)

"Le Camus.

"Sealed on the same day.

"Depaz.

"We, Grand Judge of Martinique, certify all whom it may concern, that the above signature is that of C. Le Camus, Chief [**46]  Secretary of the Court of Martinique, and that faith ought to be given to it as well in as out of judgment. We certify farther, that stamps are not used in this colony. Given at Fort de France, the 13th Germinal, 12th year of the Republic. Sealed with our seal, and countersigned with our signature.

(Seal.)

"Le Fessier, Grand Pres.

"By the Grand Judge,

"The Secretary,

Fouchey, Son.

"Louis Arcambal, consul of France for the state of Maryland, one of the United States of America, residing at Baltimore, certify, that Mr. Le Fessier de Grand Pre, who has signed the above legalization, is Grand Judge of the Island of Martinique; that the signature is truly his, and that faith ought to be given to it, as well in as out of judgment. Certify also, that the Grand Judge is the only authority existing in the French colonies for the legalization of judicial acts.

In faith of which we have signed these presents, and have thereunto affixed the seal of the consulate at Baltimore, the 6th Brumaire, year 13th, (28th October 1804.)

(Seal.)

L. Arcambal."

The plaintiff, to prove that the attestation was in fact under the hand and seal of the said grand [**47]  judge, produced and read in evidence a deposition sworn in open court, and admitted in evidence by consent of parties, so far as parol evidence is competent to prove the matters for which the deposition was so offered in evidence, which deposition is annexed to the exemplification, and is in the following words: "Personally appeared in open court, Antoine Baudouin, of lawful age, who being duly sworn, on his oath did say, that he is well acquainted with Le Camus, of Saint Pierre, in the Island of Martinique, whose signature is affixed to the paper hereto subjoined; and also with Le Fessier, de grand pres, of the said island, whose signature is also affixed to the said paper, and is well acquainted with the hand-writing and signature of the said Le Camus and Le Fessier, grand pres, having seen them respectively write; and that the name Le Camus is the proper hand-writing and signature of the said Le Camus, and that the name Le Fessier, grand pres, is the proper hand-writing and signature of the said Le Fessier, grand pres. And further, that he is acquainted with the seal of office of the Grand Judge of the Island and Colony of Martinique, and that the seal affixed to the said paper,  [**48]  and purporting to be affixed by the Grand Judge, is the official seal; and that the said Le Fessier, grand pres, is now, and was, on the 13th of Germinal, in the 12th year of the French Republic, Grand Judge of the Island and Colony of Martinique; and that he the deponent being a French citizen, and a resident of the said Island of Martinique, he is well acquainted with the laws and constitution thereof, as far as relates to the powers and functions of the Grand Judge, Military Commander and Prefect; and that the Grand Judge is, by the said constitution and government, the supreme authority and chief of the government, as to all that relates to judicial papers and proceedings, and is the sole authority by the said laws and government whereby any judicial proceedings can be authenticated. And that he, this deponent, is not a lawyer by profession, but a merchant, and derives his knowledge of the said constitution and government from the common practice of the place, the general understanding, and his general information as a French citizen, and an inhabitant of the said colony. The deponent further says, that there is not any general seal for the said colony; the Captain General having [**49]  one for all affairs relating to the military department; the Prefect one for all matters relating to the finances and supplies which belong to his department; and the Grand Judge one for all matters relating to the judicial department; and that he derives this knowledge from his own experience and transactions, and from his general knowledge of the said colony and government." The defendant objected to the reading of the exemplification as evidence, because the same was not legally authenticated, and because it does not contain the whole proceedings, and is not a full record of the whole proceedings which was before, and which had taken place in, the Supreme Court of the Island of Martinique.

CHASE, Ch. J. The Court are satisfied upon the subject, and are of opinion that the mere showing the seal of a court of our own state in another court of the state, is sufficient authentication of the judgment of the court it purports to certify. But if it is a judgment of a foreign court, the seal of the court does not prove itself, but must be proved by testimony. The court are of opinion, that the testimony produced in this case is sufficient to prove the seal of office of the Grand Judge [**50]  of the Island and Colony of Martinique. As to the record's not being full enough, the court are to presume that the record produced contains all the proceedings in the court of appeals, and that it is a full record; and the court are of opinion that it is proper to be given in evidence to the jury. Besides, it is to be observed, that this record is not the matter in issue in this cause, but comes in collaterally. It seems to the court, that as this is mere matter of inducement the same strictness is not necessary; but upon this point the court do not mean to give an opinion. In the case of Henry vs. Adey, 3 East, 221, it was debt upon the very record produced. The court, however, are of opinion, that this record is sufficiently authenticated, and ought to be read in evidence to the jury. The defendant excepted.

4. The counsel differed in their ideas of the manner in which they ought to proceed as to the proof of the French law.

CHASE, Ch. J. seemed to concur in this idea of the attorney general, and said that the court are to decide what is proper evidence of the laws of a foreign country; and when evidence is given of those laws, the court are to judge of the applicability [**51]  of such laws, when proved, to the case before the court.

5. The defendant offered to read to the jury certain letters written to him by Dominique Pechier, (and admitted to be in his hand-writing,) for the purpose of controverting the testimony of the said Pechier, as returned with one of the commissions which issued in this cause; but the plaintiff objected to the reading of those letters, because the testimony taken was under a commission obtained by the defendant, and he cannot invalidate his own testimony.

CHASE, Ch. J. The letters being admitted to be in the hand writing of Mr. Pechier, the witness, the court are of opinion they may be read to the jury, for one purpose alone; that is, to impeach the credit of the witness as to what he has sworn upon his examination under the commission, contradictory to the contents of the letters; but that the letters are not admitted as evidence to prove any particular fact, which may be contained therein.

6. The plaintiff then prayed the opinion of the court, and their direction to the jury, that a contract made in one country, with a view to the execution or performance of it in another, is governed in all things, both as to [**52]  its essence and the mode of enforcing it, by the laws of the latter country.

CHASE, Ch. J. If the contract is in writing it will itself show where it is to be executed; but if it does not appear, by the face of it, the presumption is that it is to be executed in the country where it was made. If it does appear that it has a view to be executed in a particular country, it must be carried into effect pursuant to the laws of that country. But if the contract is by parol, the party is at liberty to go into evidence to prove the intention of the parties as to where it was to be executed.

7. The second bill of exceptions. The plaintiff prayed the opinion of the court, and their direction to the jury, that if they are of opinion, from the evidence before them, that the testator of the defendant was, on the 1st of April and the 30th of September 1797, indebted to the plaintiff in the several sums stated in his account filed in this action, or any part thereof, and that the plaintiff at those several times resided within the U. S. and was known by the testator so to reside; and that he, on the two first above mentioned days, acknowledged the debts, or any part of them, and directed [**53]  them, or any part of them, to be paid out of his estate after his death, and on the last mentioned day directed, in and by his will of that day, that all debts in the U. S. should be paid out of his property in the U. S. bequeathed to the defendant, then the plaintiff is entitled to recover the said sums, or such part thereof as were so acknowledged and directed to be paid, or the value thereof, in current money of this state.

CHASE, Ch. J. The court cannot give the direction prayed for by the counsel for the plaintiff. The court are of opinion, that the facts stated, and the acknowledgments, cannot change the nature of the contracts made between the plaintiff and the testator in Martinique, or prevent the construing the same according to the laws of France, so far as the same may be applicable to the contracts. If the contracts, by which the debt becomes due, were made in France, they must be governed by the laws of France. No acknowledgment of the debt due in this country can change the original nature of it. The great question depends upon what are the laws of France. If the plaintiff can establish his claim, according to the laws of France, no act of the testator can prevent [**54]  his recovering it in this country. The plaintiff excepted.

8. The third bill of exceptions. The defendant further offered in evidence, that the 34,925 livres and 14 sols, alleged to have been received by the testator in France, and invested in goods, and shipped as before mentioned, which goods were by the testator disposed of in the U. S. for his use, were part of the sum of 40,000 livres, advanced by the plaintiff to the testator in May and August 1793, and by the testator received from Madam Aubin Blampre, and which are charged in the account exhibited in this cause, and constitute the two articles of 12,000 livres and 28,000 livres in that account, which are therein charged as received by the testator for the use of the plaintiff, and on which he has charged an interest from the times he states the sums to have been respectively received by the testator; and therefore, that the plaintiff had elected to consider the whole of the 40,000 livres as money due to him from his father, from the respective times he received it; and that the plaintiff did, on the 9th day of June 1803, file the following account in this cause, as specifying the claims which he had against the defendant [**55]  as executor of the testator, for which he had brought his suit, to wit:

"Benjamin De Sobry, Executor of Michael A. Terrier de Laistre, deceased,

________________________________________________________________________________
To Lewis A. Terrier de Laistre,	Dr.	
	Currency.	Dolls.	
1792, Decr. 29. To 1236 livres, money of	
  the Islands, being the price of 4 slaves	
  sold and delivered to the testator on my	
  departure from Martinico to France, as	
  by his written acknowledgment, dated	
  30th Nov. 1795, equal to	£  561 16  4	$ 1498 18	
   Interest thereon from this day till 21st	
  May 1803, at 5 p. ct.	   291 15 10	778 12	
1793, May 21. To 12,000 livres tournois,	
  received by said testator this day for my	
  use, as per his letter of this date, equal	
  to	   857  5  0	2285 75	
   Interest thereon from this day till 20th	
  May 1803, at 5 p. ct.	   428 12  6	1142 87	
Aug. 1. To 28,000 livres tournois, received	
  by said testator for my use this	
  day, as per his letter of this date, equal	
  to	2000	5333 33	
   Interest thereon at 5 p. ct. till 20th	
  May, 1803,	   980  9  8	2614 64	
1795, May 22. To 3440 livres tournois,	
  received by said testator this day for my	
  use, as per his two letters, one of this	
  date, and the other of the 15th October	
  1795, equal to	   245 14  8	655 23	
   Interest thereon at 6 p. ct. till 20th	
  May 1803,	   117 18	314 40	
	
	£  5483 11  7	$ 14622 52	
________________________________________________________________________________

 [**56]  

The defendant then offered in evidence, that in consequence of this account so filed, the defendant had taken out the three last commissions which were executed, in order to examine into the justice of the claims in the account stated, and the operation of the French laws thereon; and he gave in evidence the commissions, the returns thereof, and the evidence obtained thereon, and prayed that the court would not permit the plaintiff to change the nature of his claim contrary to his own election deliberately made, and contrary to his claims as exhibited by him to the defendant in his said account. The plaintiff also prayed the court, and their direction to the jury, that if the jury should be of opinion, from the evidence before them, that 34,925 livres and 14 sols, were, on or before the 29th of December 1793, received in France from the plaintiff, and to his use, by the testator, and were, on or about that day, invested by him in merchandises at Bourdeaux, in France, for the account and risk of the plaintiff; and that the merchandises were then and there, by the testator, shipped to the U. S. for the account and risk of the plaintiff, and that the merchandise did arrive in the [**57]  U. S. some time in or before the month of May 1795, and were then and there received by the testator into his possession, and sold and disposed of for his own use and benefit, and the price thereof paid to the testator in his life-time, then the plaintiff is entitled to recover the amount of money which the jury, from the evidence, shall believe that the testator received for the merchandise.

CHASE, Ch. J. The court cannot give the direction to the jury as prayed by the plaintiff. The court are of opinion, that the plaintiff is precluded, by his account filed, from going into evidence to establish his claim for the money had and received by the testator for his use, in a manner different from that in which he has elected, by his account, containing a notice of his claim, to consider the testator his debtor for his use. The plaintiff excepted.

9. The fourth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that if the sum remaining in the defendant's hands, and retained by him as a legacy, or any part thereof, is liable to be recovered from him, as a part of the succession of the testator, and to be made answerable for [**58]  such debts of the testator as were contracted under the French laws, which have their force and effect according to the provisions of those laws, and which are to be paid out of the succession, according to the rules and regulations thereby established, the suit could only be prosecuted against him by and in the name of the plaintiff and his brother, if they have both jointly taken upon themselves the management and administration of the succession, or in the name of his brother, Marc Anthony, alone, if he has alone taken upon himself the administration and management, and not in the name of the plaintiff alone, as the suit is now brought.

CHASE, Ch. J. The court are of opinion, that any creditor may sue the executor pro forma, as he is called here, provided he shows himself to be a creditor under the laws of the country where the contract was entered into. That as long as assets remain in the hands of the executor pro forma, he is answerable to the creditors; and if there is any surplus, it is to go into the mass of the succession, there to be distributed according to the laws of succession of the country where the person is domiciled.

The court are of opinion, that personal [**59]  property adheres to the person; that wherever the person is domiciled, the property goes in distribution, according to the laws of that country. Whatever fund in this country is answerable for debts, is answerable to all creditors alike, (provided they show themselves to be creditors,) according to the laws of this country.

If our laws give a preference to our citizens, the defendant should have pleaded that our citizens had that preference.

The plaintiff is to be considered as a creditor, and in no other capacity; and if he has not intermeddled, so as to prevent his recovery as such under the French laws, he must recover in this action.

The court are of opinion, that if the jury should find, from the evidence, that the plaintiff, as heir pure and simple, or as beneficiary heir, has not intermeddled with the estate or succession of the testator, and that the testator was indebted to the plaintiff, at the time of his death, that then the plaintiff has a right to support this suit. But the court do not mean to decide, that an intermeddling by the plaintiff in the quality of heir pure and simple, or as heir with benefit of inventory, would defeat his right of recovery in [**60]  this action, that question being still open.

The court are of opinion, that the assets in the hands of the defendant, as executor of the testator, are liable to the payment of debts due to the citizens of France from the testator, contracted there, or in the colonies of France, and that the defendant will be only accountable to the testamentary executor, the heir pure and simple, or heir with benefit of inventory, for the surplus remaining, after payment of debts, which surplus is distributable according to the laws of France. The defendant excepted.

10. The fifth bill of exceptions. The defendant further offered in evidence, that the testator being a French citizen, and having his domicil in the Island of Martinique, died there, having first duly made the wills and codicils herein before mentioned and set forth, and that at the time of his death he was possessed of certain property in the U. S. and had certain debts due to him therein; that Pechier, in that Island, as testamentary executor, took upon himself the management and administration of the succession of the testator, according to the French laws; that the succession, according to the laws of France, is the whole [**61]  mass of his estate, real, personal, mixed, rights and claims, whatsoever and wheresoever, of which the deceased was seized or possessed, or to which he had right or title at the time of his death, and which, by the French laws, were answerable in the first place for payment of debts, and then of legacies, and after the payment of debts and legacies, the residue to be enjoyed by the heir of the deceased, if he had only one child, or if more than one, to be divided equally between them. That by the said law all the children constitute but one heir, and are equally entitled to the residue, where there is a residue. That Pechier, by taking upon himself the management and administration of the succession, was the person whose duty it was to take into his possession, and to collect, receive and obtain, the whole of the succession, and to pay and satisfy thereout all debts due from and claims against the succession; and afterwards to deliver over the residue to the heirs of the testator, unless the heirs, or some one of them, chose to take the administration and management of the succession out of the hands of Pechier. That by the French laws the heir or heirs, or either of them, have an [**62]  exclusive right, in the first instance, to take upon themselves the management and administration of the succession, and if they do not, and the testamentary executor acts, yet they may, whenever they please, interpose and take upon themselves the management and administration of the succession. That the testator left two sons, his heirs, both of whom are now living, the plaintiff, and his brother named Marc Anthony Terrier de Laistre, and that they, sometime in the month of July in the year 1798, did take upon themselves, in the Island of Martinique, the management and administration of the succession; and that Pechier did then and there deliver up to them the succession as far as it had come to his hands; and thereupon it became the duty of the plaintiff, and his brother, to take into their possession the whole of the succession, and collect and obtain the debts, &c. constituting part of the same, and thereout to pay all debts and legacies. That the debts and claims for which this action is brought, were contracted and arose in the government of France, and are subject to the operation of the French laws, and payable out of the succession according to those laws, and in such manner [**63]  as is by those laws provided. That he, the defendant, according to the wills and codicils, and with the assent of Pechier, while he had the management and administration of the succession, obtained letters of administration in due form of law, in this state, to collect the debts and other effects, which were in the U. S. and which constituted part of the succession, in order to pay thereout the debts by the will charged thereon, and to hold the residue agreeable to the dispositions of the testator, and the French laws operating thereon. That the sum remaining in his hands, after payment of the debts, is retained by him, he claiming the same as a legacy given him by the testator. That no creditor of the succession, or other person, can, by the French laws, bring suit against, or have any claim against a legatee, who hath obtained his legacy for which he can prosecute any suit, unless the succession is insolvent, and that the insolvency must be established by judiciary proceedings in a French court, of competent jurisdiction; and that there was no evidence given by the plaintiff of such proceedings having been had. The plaintiff further offered in evidence, that by the laws of France,  [**64]  and her colonies, a co-heir of a person deceased, with benefit of inventory, who is also a creditor of the deceased, preserves in all cases his rights as a creditor, and may recover his debt out of the estate of the deceased wherever he can find it, without prejudice to his rights as a co-heir; and that the plaintiff in this action never did act as co-heir of the estate of the testator, nor in any manner intermeddle with his estate. The plaintiff then, upon the whole statement in this case, prayed the opinion of the court, and their direction to the jury, that if the jury should be of opinion, from the evidence before them, that the testator did purchase from the plaintiff, in the Island of Martinique, sometime in or before the year 1793, four slaves, the property of the plaintiff, and did also receive from the plaintiff, on loan, at Bourdeaux, in France, on or about the 21st of May 1793, the sum of 12,000 livres, current money of France, and on or about the 1st of August 1793, the further sum of 28,000 livres like money, and on or about the 22d of May 1795, the sum of $ 170 current money of the U. S. to be employed for the benefit of the testator, and accounted for with, or repaid [**65]  to the plaintiff; and that the testator, at the time of his death, was possessed of personal property in this state, and elsewhere within the U. S. to the amount of $ 13,092 68, and bequeathed the same to the defendant by his will, bearing date at Martinique, on the 14th of April 1797; and that the defendant duly proved the said will in the orphans court of Baltimore county, in this state, and obtained from that court letters testamentary on the will, and took upon himself the burden and execution thereof, and received into his possession, as executor, the personal property of the testator, then the plaintiff is entitled to recover, as well the value of the slaves, as the several sums of money received by the testator, provided there be assets sufficient to pay the same, and if not, then so pro rata.

CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that it is a general principle, which admits of a few exceptions, that in construing contracts made in foreign countries, the courts are governed by the lex loci as to what respects the essence of the contract; that is, the rights acquired, and the obligations created by it. That the remedy or mode of enforcing [**66]  the contract, is to be conformable to the laws of the country where the action is instituted. Dixon's ex'rs. vs. Ramsay's ex'rs.  3 Cranch, 323, 324.

The exceptions to construing contracts according to the lex loci, which at present occur, are

First. Where by the terms of the contract it is to be executed in another country; there the parties to it, by common consent, adopt the laws of that country as the rule of decision.

Secondly. Where the contract is contra bonos mores, as for the price of prostitution--Such a contract, though legal in some countries, would not be enforced in England, or in this state.

The court are also of opinion, that unless the jury should be satisfied, according to the laws of France, that a co-heir with benefit of inventory, who is also a creditor, cannot recover in the quality of creditor, without renouncing, that then the plaintiff is entitled to recover whatever the jury may find due on the contracts made in France, according to the laws of France.

The court are also of opinion, that as to that part of the sum which is claimed under the contract made in America, the plaintiff is entitled to recover, without any regard [**67]  to the laws of France, whatever the jury may find due thereby.

The court are also of opinion, that upon principles of common sense and justice, no part of the testator's estate is subject to distribution among his co-heirs, but the surplus or residuum which may remain after payment of all, the debts and legacies; and that a debt due to one of the co-heirs is as much entitled, on principles of justice, to payment, as a debt due to a stranger; and that it is incumbent on the defendant to prove to the jury that there is a law of France which extinguishes the right or claim of the co-heir creditor, with benefit of inventory, unless he renounces as co-heir.

a The court are also of opinion, that the laws of France are matters of fact to be found by the jury, upon evidence to be produced to them; and, unless the jury find some law of France, which extinguishes the claim or right of recovery of the plaintiff, that the plaintiff has a right to recover in this case, whatever the jury may find to be due to him upon a full investigation of the evidence. The court also inform the jury, that it does not appear to the court that there is any law of France which is a legal impediment to [**68]  the plaintiff's recovery. The defendant excepted.

a This part of the court's opinion was given by them after the argument of all the points of law in the cause, and while the attorney general was addressing the jury. 

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Parol evidence admitted to prove the manner in which wills are made and proved in France

A copy of a will executed in Philadelphia and transmitted to the Island of Martinique by the testator, certified by a notary public of that Island, and returned under a commission issued to take testimony, is sufficiently authenticated by having the certificate of the chief colonial officer as to the signature of the notary public; and which, with the testimony of the testamentary executor, returned under the commission, is sufficiently proved, and may be read in evidence as the will of the deceased.

As to the manner of striking commissioners and issuing commissions to a foreign country to take testimony

Proof of the French laws in testamentary affairs, returned under commissions issued to take testimony, and admitted in evidence

How for the proceedings in a court in a foreign a country is legally authenticated, and how far the exemolification thereof produced contain the whole proceedings, &c.

The mere showing the seal of court of our own state in another court of the state, is a sufficient authentication of the judgment of the court it purports to certify

The seal of the court of a foreign country does not prove itself; but it must be proved by testimony

Parol evidence admitted to prove the seal of the court of a foreign country

Where a question comes incidentally or collaterally before the court, whether or not the same strictness in the admission of evidence, is to be observed as if the question was directly in issue?

The laws of a foreign country are to be proved by evidence, and the court are to decide what is proper evidence of such laws, and to construe them, and judge of their applicability to the question before the court

The letters of a witness permitted to be read in evidence to impeach his credit as to what be had sworn upon his examination taken under a commission, contradictory to the contents of the letters, but not to prove any other fact

If a contract is in writing it will itself show where it is to be executed; but if it does not appear on the face of it, the presumption is that it is to be executed in the country where it was made. If it does appear that it has a view to be executed in a particular country, it must be carried into effect pursuant to the laws of that country

If a contract is by parol, the party is at liberty to go into evidence to prove the intention of the parties as to where it was to be executed

A contract made in a foreign country must be governed by the laws of that country, and no acknowledgment of the debt in another country can change the original nature of the debt

If the plaintiff in an action of assumpsit files an account in court containing the item, of his claim against the defendant, he is precluded from going into evidence to establish his claim in a manner different from that be had elected by his account to consider the defendant his debtor

Any creditor may sue an executor pro forma, provided he shows himself to be a creditor under the laws of the country where the contract was made; and as long as assets remain in the hands of such executor, he is answerable to the creditors; and if there is any surplus, it is to go into the mass of the succession, to be distributed according to the laws of the country where the testator was domiciled

Personal property adheres to the person; and wherever the testator is domicil at the time of his death, the property is to be distributed according to the laws of that country

Whatever fund in this state is answerable for debts, is answerable to all creditors alike according to the laws of the state

If the laws of this state give a preference to its citizens in the payment of the debts of a deceased, the defendant, if sued by a foreign creditor, must plead such preference

An executor pro forma is accountable to the testamentary executor only for the surplus remaining after payment of debts

If an heir pure and simple, heir with benefit of inventory, or beneficiary heir, has not intermeddled with the estate or succession of a person dying in France, so as to prevent his recovery as such under the laws of France, he can recover in the courts of this state on a contract made in France

Whether or not his having intermeddled would defeat his right of recovery?

It is a general principle, which admits of few exceptions, that in construing contracts made in a foreign country, the courts are governed by the lex loci as to what respects the essence of the contract; that is, the rights acquired and the obligations created by it; and the remedy or mode of enforcing it is to be conformable to the laws of the country where the action is instituted

Where by the terms of a contract it is to be executed in another country, there the parties to it by common consent adopt the laws of that country as the rule of decision

Where a contract is contra bonos mores, as for the price of prostitution, such a contract, though legal in some countries would not be enforced in this state

Unless the jury are satisfied according to the laws of France, that a co-heir with benefit of inventory, who is also a creditor, cannot recover in the quality of creditor, without renouncing, then such co-heir is entitled to recover as a creditor whatever the jury may find due on a contract made in France, according to the laws of France

If a contract is made in this state between foreigners, and the debtor dies in a foreign country, the creditor may recover in the courts of this state, according to the laws of this state

No part of the personal estate of a testator dying in France, is subject to distribution among his co-heirs, but the surplus or residuum remaining after the payment of all his debts and legacies; and a debt due to one of the co-heirs is as much entitled to payment as a debt due to a stranger, unless there is proof that there is a law of France which extinguishes the right or claim of the co heir creditor with benefit of inventory, if he does not renounce as co-heir

The laws of France are matters of fact to be found by the jury upon evidence to be produced to them and unless they find some law of France which extinguishes the claim or right of recovery of the plaintiff (being co-heir and creditor) he has a right to recover; and the court directed the jury that it did not appear to the court that there was any law, of France, which was a legal impediment to the plaintiff's recovery

A contract made in one country with a view to the execution or performance of it in another country, is governed in all things both as to its essence and the mode of enforcing it, by the laws of the latter country 

COUNSEL:
Martin, (Attorney General,) and Purviance, for the Defendant, stated, that by the laws of France there were two modes of making wills--one was a will entirely in the hand writing of the testator, which was called an Olograph Will; the other one written by a notary public, agreeably to the directions of the testator; and that when written and read to the testator, and by him signed, and also signed by the notary, it was a good will, and was called a Solemn Will. The will offered in evidence was an Olograph will, executed in Philadelphia by the testator, and by him transmitted to certain notaries public in Martinique, where it remained. The commission, which issued in this case, was to ascertain if there was a will, and to have a copy exhibited and proved by the executor named in the will. It was legally authenticated, according to the act of 1785, ch. 46. The original will could not be produced, having been lodged in the office of a notary [**69]  by the testator himself, but the copy was authenticated by the notary in the manner directed by the laws of France.

Harper and Boyd, for the Plaintiff, contended, that it was a fixed principle in the law of evidence, that a will must be proved in one of three ways--1. The original must be produced, and the execution proved. 2. An authenticated copy from an office of record, properly certified. 3. If an authenticated copy is not produced, then proof that it is a true copy from the original, if the original is in the possession of a person or officer not authorised to record it. They cited Peake's Evid. 43, (notes.) 73, (notes.) Anon. 9 Mod. 66. Henry vs. Adey, 3 East, 221. Moises vs. Thornton, 8 T. R. 303; and Stevenson vs. Myers, 1 Harr. & Johns. 102.

Harper and Boyd, for the Plaintiff, contended, 1. That in proving a foreign judgment, proof of the seal of the court, and hand-writing of the judge, was sufficient. They cited Henry vs. Adey, 3 East, 221. Moises vs. Thornton, 8 T. R. 303. Church vs. Hubbart, 2 Cranch, 238. Peake's Evid. 72, 73, (notes,) 49; and the act of 1785, ch. 46, s. 2. 2. That the record is full and complete according to the principles of the law of England--They [**70]  cited Peake's Evid. 68. 5 Bac. Ab. tit. Pleading, 323; and 1 Esp. N. P. 6.

Martin, (Attorney General,) and Purviance, for the Defendant, cited Peake's Evid. 46, 47. 3 Inst. 173. Gilb. L. E. 17, 23. Melan vs. The Duke of Fitzjames, 1 Bos. & Pull. 141; and Talleyrand vs. Boulanger, 3 Ves. 448.

Martin (Attorney General,) for the Defendant, contended, that when it is disputed as to what are the laws of a foreign country, evidence must be given to prove what are those laws; and if there is a different construction put upon them by the parties, the court is to decide which construction is to prevail.

Harper and Boyd, for the Plaintiff, cited Thorn vs. Watkins, 2 Ves. 36, 37.

Martin, (Attorney General,) for the Defendant, also cited Thorn vs. Watkins, Bruce vs. Bruce, 2 Bos. & Pull. 229, (notes;) and Sinclair vs. Monsieur de France, Ibid 363.

Harper and Boyd, for the Plaintiff, cited The Dutch West India Company vs. Van Moses, 1 Stra. 612. 2 Huberus, B. 1, tit. 3 p. 26, cited in Emory vs Greenough, 3 Dall. Rep. 370, (note.) Melan vs. The Duke of Fitzjames, 1 Bos. & Pull. 142. Robison vs. Bland, 2 Burr. 1077, 1078, 1083. Imtay vs. Ellefsen, 2 East, 455. Negro Hector [**71]  vs. De Kerlegand, 3 Harr. & M'Hen. 185. Wright vs. Nutt, 1 H. Blk. Rep. 152. Folliott vs. Ogden, Ibid 123. S. C. 3 T. R. 734. 3 Bac. Ab. 30. Hunter vs. Potts, 4 T. R. 182, 183, 184, 185. Pigott vs. Mason, in Court of Chan. Sinclair vs. Monsieur de France, 2 Bos. & Pull. 364, (note.) Mostyn vs. Fabrigas, 1 Cowp. 174. Dixon's Ex'rs. vs. Ramsay's Ex'rs. 3 Cranch, 324. Talleyrand vs. Bounlanger, 3 Ves. 448. Thorn vs. Watkins, 2 Ves. 36. 2 Fonbl. 442; and Domat, 349.

Martin, (Attorney General,) for the Defendant, cited Harper vs. Hampton, 1 Harr. & Johns. 453. 2 Huberus, B. 1, tit. 3, p. 36. Cumming vs. The State, 1 Harr. & Johns. 340. Melan vs. The Duke of Fitzjames, 1 Bos. & Pull. 142. Talleyrand vs. Bounlanger, 3 Ves. 441; and Vatell, B. 2, ch. 8, s. 110, 111.

Harper, for the Plaintiff, before the jury, upon the laws of France, cited 1 Domat, 346, 347, 348, 349; & 2 Coutume de Paris, 252, 299, 302.

Martin, (Attorney General,) and Purviance, for the Defendant, also before the jury, referred to the testimony taken under the several commissions issued in this cause. 2 Pothier, 116. 1 Poth. 77. 2 Coutume de Paris, art. 300, 301, 252, 302, 303, 304, 307, 309, 317, 318, 344,  [**72]  and the commentary of Ferriere on those articles. Serres, 304, 305, 400, 311, 312, 363, 309, 351, 393, 421, 315, 322, 323, 314, 308, 262. Ordinance of Lewis XIV, art. 1, 4. 1 Coutume de Paris, art. 179. 13 Vin. Ab. 50, 414. Peake's Evid. 48; and Collet vs. Keath, 2 East, 260.

Verdict and judgment for the plaintiff, and the defendant brought a writ of error to this court.

Winder, for the plaintiff in error, and by

Harper and Boyd, for the defendant in error.  

JUDGES:
The cause was argued before TILGHMAN, BUCHANAN, NICHOLSON and GANTT, J.  

OPINION:

 [*230]  THE COURT concurred in the opinions of the General Court, in the first, fourth, and fifth bills of exceptions, taken by the defendant in that court.
JUDGMENT AFFIRMED.  

19 of 28 DOCUMENTS 

SAUNDERS, et ux. vs. SIMPSON, et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 81; 1807 Md. LEXIS 10 

June, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery dismissing the bill of complaint. The bill filed by the present appellants, on the 15th of November 1797, was for a specific performance of the following agreement, executed on the 28th of December 1777, by William Andrew, deceased, viz. "Baltimore county, to wit. This agreement witnesseth, that whereas I, William Andrew, of the said county, did engage and promise to give unto my daughter, Elizabeth Saunders, on or before her marriage with Mr. Robert Saunders, eight or nine hundred acres of land; and three or four negroes, which land hath since been recovered of me, so that I cannot give her that land I promised; and I, the said William Andrew, have now settled the said Robert, and Elizabeth his wife, on my Bush River plantation, called Jones' Inheritance, containing three hundred and ninety-six acres, more or less, and also a tract called Smith's Discovery thereto adjoining, containing seventy-seven acres, more or less, and do hereby now assign William Robinson's bond for the conveying of said last mentioned tract, unto my said daughter Elizabeth, her heirs and assigns, and all the estate I can or may claim thereon and thereby, which [**2]  lands I mean to give her in lieu of the lands so promised to her as aforesaid, which the said Robert and Elizabeth do now agree to take. And the said Robert hath lent and advanced me at several times divers sums of money--Now I, the said William Andrew, as well to perform my said promise as aforesaid made, as for the money advanced as aforesaid, and for divers other good causes moving me towards my said daughter Elizabeth, do now agree and promise never to remove my said daughter, nor her husband, from the said lands, but they, and each of them, shall and may have and hold the said lands under this agreement, from the date hereof; and I do promise for me, and my heirs, to give, convey, and perfect her title and right to the said lands, I mean to my said daughter, her heirs and assigns, either by my last will, or by deed duly executed, at the end of a lease which I heretofore gave them, so that my said daughter may peaceably possess and enjoy said lands, and her heirs, for ever. In witness whereof I have hereto set my hand and seal this 28th day of December 1777.

Sealed and delivered in presence of

Abraham Andrew,

Averilla Andrew,

Priscilla Colvin."

Wm. Andrew,  [**3]  (L. S.)

The bill stated, that Abraham Andrew, one of the subscribing witnesses to the agreement, was the eldest son and heir at law of William Andrew, and that Averilla Andrew and Priscilla Colvin, were two of his daughters. That William Andrew died on or about the 1st of February 1783, having first duly made and executed his last will and testament, by which, after devising a few inconsiderable legacies to his children by his first wife, (one of whom was Elizabeth, one of the complainants,) he devised all the rest and residue of his estate to the daughter by his second wife, by the name of Elizabeth Durbin William Andrew, which second wife had been the house-keeper for William Andrew, and by him kept after he separated from, and during the life of, his first wife, and whom he intermarried with after the death of his first wife, having had issue one daughter, Elizabeth Durbin William Andrew, who hath since intermarried with John Simpson. That Simpson, and wife, claiming the premises by virtue of the will, brought an ejectment in the general court against the complainant, Saunders, and recovered judgment for the possession of the same, notwithstanding they knew the claimed the [**4]  same under the above mentioned agreement. That the complainant not having any other except an equitable interest in the lands, was unable to defend the possession thereof at law, and was obliged to suffer a judgment to be entered against him, and seek his remedy in this court. a That Abraham Andrew and Averilla Andrew, two of the witnesses to the agreement, are since dead, and the complainants were in danger of losing their proof to the execution of the said instrument of writing. Prayer, for subpena, &c. and that Simpson and wife might be compelled to convey the premises in fee unto Elizabeth, one of the complainants, and that testimony might be taken and recorded in order to the perpetuating thereof, &c. Also prayer for an injunction against proceedings at law on the judgment in ejectment. Subpena and injunction issued accordingly; and a commission issued de bene esse for taking testimony.

a In the trial of the ejectment referred to, brought by Simpson el ux. Lessee vs Saunders, in the general court at October term 1796, for Smith's Discovery and Jones's Inheritance, the plaintiff proved, that William Andrew being seized in fee simple of Jones's Inheritance, devised the same to the wife of Simpson, one of the lessors of the plaintiff. The defendant then produced the agreement, or instrument of writing, purporting to have been executed by Andrew, as set forth in the context, and prayed the court to direct the jury, that if they should be of opinion, from evidence which might be offered, that the said instrument of writing was duly executed, then the effect of the instrument was sufficient to entitle the defendant to their verdict for the tract of land called Jones's Inheritance. But the defendant did not offer any evidence to prove the execution of the said writing.

GOLDSBGROUGH, Ch. J. (Chase, J. absent, Duvall, J. concurred.) The court are of opinion, that the instrument of writing produced, even though the same should have been duly executed, is not of effect to bar the plaintiff's recovery of the land mentioned. Verdict, guilty as to Jones's Inheritance, and not guilty as to Smith's Discovery. Judgment on the verdict; from which the defendant appealed to the court of appeals, where the judgment was affirmed at November term 1797.

Key and Winchester, for the plaintiff and appellee.

Martin, (Attorney General,) and Hollingsworth, for the defendant and appellant. [**5]  

The answers of the defendants stated, that Saunders held the lands mentioned in the bill, during the life-time of Andrew, as a tenant, and that the same were never sold, or contracted to be sold by him to the complainants, or either of them, and that the writing, or bond of conveyance, in the bill mentioned, was never executed by Andrew, but is a forgery. That Andrew devised the land to the defendant, Elizabeth.

Much testimony was taken under the several commissions which issued for that purpose, and the several exhibits proved.

Exhibit E. Is a letter dated Middle River Neck, October 20, 1773, from William Andrew to Robert Saunders, then of Queen-Anne's county, viz. "Daughter Betsey has been talking to me about living over here, as she wants to come back, and if you will come over again, you may go to Bush River plantation, on halves, for seven years, and then the place shall be hers instead of the land Bond has recovered against me."

Exhibit R. Is a letter from William Andrew to Robert Saunders, without date, but is in answer to one from the latter to the former dated the 8th of December 1781. "As to what you mentioned by W. Chambers concerning the company's land,  [**6]  if it runs as you say b, you had better buy it, as I have no money to spare at this time. I think you may afford to buy that bit; and if you will, I will be up and be your security."

b By a plot made of the lands, it appears that this tract run nearly through the middle of Jones's Inheritance.

Exhibit X. Is a bond dated the 18th of July 1800, executed by John Simpson to John Colvin, and conditioned for the conveyance to Colvin of 75 acres of land out of Jones's Inheritance and Smith's Discovery, if ever they should be recovered into the possession of Simpson.

Exhibit Z. Is a letter from Simpson to Colvin, without date, and is as follows: "I have received two letters from you, the first I did not understand, but the second explained your meaning fully, which is, you will have money from me at any rate. First you say, the bond is not valid, now you threaten me with the sale of it. You tell me Hammond and I are in collusion. I tell you it is more probable that he and you are in collusion. Was not every thing that was done about that business at the particular request of you and your mother? And pray how is my interest connected with Hammond's? Exactly in the same way [**7]  that I am connected with you, and every other person who has ever done any thing for me in Maryland, by paying an extravagant price for it all, or obligating myself so to do. You ask, if I expect to keep the bond until it becomes due, that I deceive myself. In one thing I am sure I am not deceived, that I shall not pay it twice, and I do not conceive it will be more expensive to pay it to another than to you. But you seem to think I must pay it to you, whether I will or not--In this let me tell you, you deceive yourself, and grossly too. You seem to think I cannot do without your mother's testimony, and that it is of essential importance to me. In this you are wrong. You never knew for what purpose I wanted her testimony, nor does she understand it herself, neither would I have told any of you, but it seems necessary to inform you to prevent you running yourselves into infamy, and such difficulties, that it will be impossible to extricate you from. The real intention on my part was to make her testimony good for nothing, which is done, she having already sworn on both sides of the question. Now you expose my bond for sale, the thing becomes public. It must and will be considered as [**8]  a bribe for which she has perjured herself. To prevent any consequence of this kind, was my inducement for exacting a promise from you of keeping the thing an inviolate secret, and which you promised on your sacred honour to perform. It was a measure I disliked in every step, but your characters and interest being both connected with keeping the secret, and your most pointed promises so to do, I thought you might be trusted without risk to yourselves; but it appears as if avarice was superior to every other, consideration with you, and that without looking forward at all. Would you have a little patience, the business is in such train that it cannot be long until you will get the money; but such imprudence on your part may put it off to a later period. How do you suppose, that in justice to myself I can pay any more money, when there is any uncertainty that I may never get any thing in return for it; and you will positively receive more clear profit on the final issue of this business than I shall. This suit has already cost me upwards of $ 400, and will yet cost me a sum I cannot calculate, besides a great loss of time. What you get, you get clear, and that without trouble or expense.  [**9]  Had you me in your power in such manner that you could force money from me in this way, would it not amount to absolute robbery? And do I deserve it at your hand in any respect? I have felt myself under obligations to your mother for her friendship, but if she is privy to this business, it is well calculated to cancel them all. I shall be in Baltimore in two or three weeks, and hope, in the mean time, you will think more prudently about this business, other ways you must make your best of it, and I shall never have any connection with either of you again."

HANSON, Chancellor, (14th of March, 1805.) Without acting against the principles which have governed the Chancellor in several former decisions which have been affirmed on appeal, he cannot grant that which is prayed by the bill. It appears to him indeed, that no bill filed in this court praying a decree to compel a conveyance of land on an alleged contract, has been more weakly supported by the admissions and proofs in the cause. But it would be irksome to the Chancellor, and he conceives it altogether unnecessary for him to give his opinion at large, and to remark particularly on the testimony. Decreed, that the bill be dismissed,  [**10]  and the injunction heretofore issued be dissolved.

From this decree the complainants appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

A specific performance of a bond for the conveying of lands, executed in 1777 by a father, in favour of his daughter, decreed, on a bill filed in 1797, although strongly contested on the ground that the bond was never executed, or if executed, that it was obtained by fraud.

An equitable title in the defendant to lands, will not prevent a recovery against him in an action of ejectment bro't by a person having the legal title. (note) 

COUNSEL:
Martin, Ridgdy, Shaaff, Johnson, (Attorney-General,) and Brice, for the appellants a, and by

Key and Harper, for the appellees.

a They cited 2 Stra. 1096. 1 Blk. Rep. 365: and 4 Burr. 2224, to show that a will might be established though the three subscribing witnesses thereto denied their handwriting. 

JUDGES:
The case was argued before CHASE, Ch. J. TILGHMAN, NICHOLSON and GANTT, J.  

OPINIONBY:
CHASE 

OPINION:

 [*86]  CHASE, Ch. J. delivered the opinion of the court. It appears to the court, that the bond dated the 28th of December 1777, from William Andrew to Robert Saunders, and wife, for the specific execution of which the bill was filed, has been well and sufficiently proved. The letter written by Andrew to Saunders, dated the 20th of October 1773, shows the foundation on which the bond was executed, and exempts it from suspicion of fraud, or illicit contrivance. The bond may be considered as the fulfilment of the promise, made to the daughter, contained in that letter, and is strongly corroborated by the exhibits Z and R. [**11]  The conflicting interests which prevailed in the family on the death of Andrew, the disputes consequent thereon, and contrivances formed by the parties to get as much of his property as could be obtained in the general scramble, have exhibited a scene of iniquity and corruption seldom brought to the view of a court of justice.
The conduct of Saunders, although' highly reprehensible, in the methods adopted and pursued by him to get a confirmation of his wife's right to the lands in question, or to secure it to himself, cannot defeat or diminish the wife's equitable right and interest thus acquired by her father's letter, confirmed by the possession given pursuant thereto, and by his bond to Saunders.
And for these reasons the court do reverse the decree of the Chancellor, with costs to the appellants; and do decree, order and adjudge, that Simpson and wife, by a good and sufficient conveyance in law, do grant, convey and make over, to Elizabeth Saunders, and her heirs, for ever, the 

 [*87]  lands called Smith's Discovery and Jones's Inheritance; and that Simpson and wife be perpetually enjoined from proceeding at law on the judgment in ejectment [**12]  obtained by them against Saunders and wife.
DECREE REVERSED, &c.  

20 of 28 DOCUMENTS 

BEARD VS. HEIDE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 436; 1809 Md. LEXIS 13 

June, 1809, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action on the case against a common carrier for negligence, &c. The general issue pleaded. A commission by consent issued to London, for the purpose of obtaining testimony, and was returned, with the testimony taken under it. At the trial in the county court, the plaintiff, (now appellee,) offered in evidence the commission and the testimony, to which evidence the defendant, (now appellant,) objected, on the ground that it did not appear that the commissioners, named in the commission, appointed a clerk. But the county court, [H. Ridgely, Ch. J.] overruled the objection. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

In executing a commission to take testimony, it is not necessary that the commissioners should appoint a clerk 

COUNSEL:
W. Dorsey, for the Appellant; and by

Brice, for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J. POLK, BUCHANAN, NICHOLSON, and EARLE, J.  

OPINION:

 [*443]  JUDGMENT AFFIRMED.  

21 of 28 DOCUMENTS 

FAGET VS. BRAYTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 350; 1808 Md. LEXIS 25 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Replevin for a cow. The declaration did not allege any damage to have been sustained by the plaintiff, (now appellee.) At the trial the defendant, (the appellant,) prayed the court to direct the jury, that as the plaintiff had declared the taking of the cow in question to have been in Gay-street, from the dwelling-house of the plaintiff, it was incumbent on him, in order to entitle him to recover, not only to prove that the taking was in Gay-street, but to prove that it was from the house of the plaintiff in that street. The court, (H. Ridgely, Ch. J.) refused to give this direction, but did direct the jury, that if they should be of opinion that the defendant took the cow of the plaintiff in Gay-street, that was sufficient to entitle the plaintiff to recover. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

If the declaration in an action of replevin does not allege damage to have been sustained, it is fatal

Whether the declaration in replevin stated the taking of the property to be in Gay-street, from the dwelling-house of the plaintiff--Held, that evidence of the defendant's having taken the property in Gay street, was sufficient without proving that he took it from the dwelling-house of the plaintiff.  

COUNSEL:
Purviance, for the Appellant.

Martin, Winder, and Rogers, for the Appellee.  

OPINION:

 [*351]  THE COURT concurred with the county court in the opinion expressed in the bill of exceptions; but reversed the judgment, because no damages were laid in the declaration.  [**2]  
JUDGMENT REVERSED.  

22 of 28 DOCUMENTS 

SMITH & BUCHANAN VS. GORTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 367; 1808 Md. LEXIS 34 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit by the appellee against the appellants. The declaration contained two counts. The general issue was pleaded; and at the trial the plaintiff offered certain testimony in evidence. The defendants objected to the testimony being given to the jury in support of the issue joined on the second count in the declaration; but the county court, (H. Ridgely, Ch. J.) overruled the objection, and permitted the evidence to be given to the jury. The defendants excepted; and the verdict and judgment being for the plaintiff, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The court of appeals, having concurred in the opinion expressed by the county court in the bill of exceptions, but reversed the judgment on the form of proceedings, awarded a procedendo 

COUNSEL:
Harper and Purviance, for the Appellants; and by

Winder and Rogers, for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J., BUCHANAN, NICHOLSON. and GANTT, J.  

OPINION:

 [*368]  THE COURT were of opinion that there was error in the form of proceedings, the second count in the declaration being defective; but they concurred in the opinion expressed by the court below in the bill of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

23 of 28 DOCUMENTS 

POE VS. CONWAY'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 307; 1808 Md. LEXIS 12 

June, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Assumpsit brought by the appellee on the 7th of April 1801, for work and labour, &c. performed by his intestate for Poe, the appellant, on the 4th of September 1798. The act of limitations was pleaded; and at the trial the plaintiff below offered testimony to prove an acknowledgment by the defendant, that the intestate had performed work for him, but that he had an account in bar, and when a person who was then up the bay should come to town, he would have the business settled. The defendant prayed the court to direct the jury, that this testimony was not sufficient on the pleadings to prevent the operation of the statute of limitations; which direction the court refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

In assumpsit for work and labour, the act of limitations was pleaded--Held, that evidence of an acknowledgment by the defendant that the plaintiff had performed work for him, but that he had an account in bar, and when a person who was then up the bay should come to town he would have the business settled, was sufficient to defeat the operation of the act of limitations.  

COUNSEL:
Martin and Gwynn, for the Appellant.

Hollingsworth, for the Appellee.  

OPINION:

 [*307]  JUDGMENT AFFIRMED.  

24 of 28 DOCUMENTS 

HUGHES VS. O'DONNELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 324; 1808 Md. LEXIS 17 

June, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. This was an action on the case, for maliciously causing the plaintiff, (now appellee,) to be taken in execution, and falsely imprisoned, on a judgment which had been satisfied, &c. The general issue was pleaded.

1. The plaintiff, at the trial, offered in evidence a record of a judgment, and proceedings thereon, in a suit wherein the defendant (now appellant,) was plaintiff, and the plaintiff, (the appellee,) was defendant, setting forth, that at May term 1800, a judgment was recovered in the general court, by the then plaintiff, for £  110 4 0 current money damages, and $ 61 50 and 1363 lbs. of tobacco, costs. That on the 3d of February 1801, a ca. sa. issued on the judgment, and was served on the then defendant. The plaintiff also offered in evidence the following receipt of Zebulon Hollingsworth, esquire, attorney for the plaintiff in the judgment, to prove its payment and satisfaction: "4th August 1800. I have this day received of John O'Donnell, esquire, the sum of one hundred and forty pounds one shilling and ten pence, in full of the within judgment.

Z. Hollingsworth, Att'y. for C. Hughes."

The defendant then offered to show,  [**2]  that the above receipt was given by mistake for a less sum of money than was due on the judgment. But the court were of opinion, that the receipt was conclusive evidence that the judgment was satisfied, so far as to prevent the plaintiff therein from issuing any execution for any balance that might in fact be due. The defendant excepted.

2. The plaintiff further offered in evidence, that the defendant in this cause, notwithstanding the receipt, and the notice thereof, ordered an execution to issue for the whole amount of the judgment, without endorsing thereon the sum of money so received on account thereof, and directed the whole amount to be executed for. The defendant then moved the court to direct the jury, that notwithstanding the receipt, if there was any balance due on the judgment, that the plaintiff in the judgment might take out an execution for the same. But the court was of opinion that the receipt, purporting to be in full of the judgment, Hughes was so far bound thereby that he could not take out execution for any balance which might be actually due. The defendant excepted. The verdict and judgment being for the plaintiff, this appeal was brought by the defendant.  [**3]  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

Where the attorney of the plaintiff had given the defendant a receipt for a sum of money, stated to be in full of the judgment, but which was for a less sum than the amount due--Held, that the receipt was not conclusive evidence that the judgment was satisfied so far as to prevent the plaintiff from taking out execution on the judgment for any balance which might be actually due thereon.  

COUNSEL:
Harper, for the Appellant. The receipt in this case, though expressed to be in full of the judgment, was not so, and not being so, was not conclusive satisfaction of the judgment, and an execution might issue for the balance, and the plaintiff in the judgment was not bound to endorse the sum of money which had been paid. The authority of an attorney at law ceases after the judgment is entered, and he has no right to enter the judgment satisfied, when in fact it is not so. He may perhaps receive payment, and give a receipt therefor; but he has no right to enter the judgment satisfied. He may say what he has received, and as far as that payment goes, it probably is a discharge. Until the whole sum of money, however, is received, the plaintiff may go on and issue execution, and if a part only is due, he can issue for that. The opinion of the county court goes so far as to say that the attorney may enter the judgment satisfied, and the plaintiff is bound by it. It has been decided that an execution is not rendered illegal if it has not an endorsement of the amount actually due. The sheriff is not bound to execute the writ without such endorsement;  [**4]  but he may do so if he pleases. Howard vs. The Levy Court, 1 Harr. & Johns. 566.

Purviance and S. Chase, jr. for the Appellee. If the principal himself had received the money, and given a receipt in full of the judgment, he could not issue an execution thereon, unless he had given notice of the mistake. If the attorney enters a judgment satisfied, the plaintiff is bound by it. He has his remedy against the attorney, but cannot go against the defendant. The authority and extent of the powers of an attorney are fully laid down and recognized in the following authorities: Latuch vs. Pasherante, 1 Salk. 86. Lamb vs. Williams, Ibid 89. Powel vs. Little, 1 W. Blk. 8. Welsh vs. Hole, 1 Doug. 238. 1 Roll. Ab. 291, pl. 17, 20. 1 Bac. Ab. 188. 1 Com. Dig. 40. Read vs Dupper, 6 T. R. 361. Randle vs. Fuller, Ibid 456. Ormerod vs. Tate, 1 East, 464. There was no endorsement on the execution of any money paid, and the defendant was taken in execution for the whole amount of the judgment. The jury were to judge whether it was a malicious proceeding, and if so, to give damages accordingly. It does not appear that the execution issued for the balance. If any balance was due, it was only £  1 19 [**5]  9, which might have been settled in another way. There might have been a preceding payment. The appellant, with a full knowledge of the payment which had been made, issued the execution for the whole amount for which the judgment had been rendered. This action is for a malicious prosecution of an execution; for vexatiously causing the appellee to be taken in execution, and demanding a larger sum of money than was due; for an abuse of the process of the court. It would be a dangerous doctrine if a client could undo and destroy what his attorney had done. If an attorney recovers a judgment for a sum of money which his client might consider too small, could he dissent from the judgment, and bring a new suit? The same principles prevail with respect to the attorney as to all other kinds of agents. If an attorney abuses the interest of his client, he is answerable to him. The receipt of the attorney was sufficient to authorise the clerk of the court to enter the judgment satisfied; and it not being so entered, can make no difference. Admitting that the receipt did not operate as an extinction of the claim, yet it operated so far as to prevent an execution from issuing. The appellant did [**6]  not issue the execution upon the ground of a small balance being due, but he issued it for the whole. He should have given notice to the appellee of the mistake, and that a balance was due. His proceeding was as much an abuse of the process of the court, in demanding a large sum of money, when little was due, as it would be to demand a larger sum when there was nothing due.

Harper, in reply. During the pendency of a suit the attorney's acts will bind his client. He is then pursuing his authority. But his authority ceases when judgment is obtained, and he has no right to enter it satisfied when it is not so. If he acts within his instructions, it will bind his client.  

JUDGES:
The case was argued before TILGHMAN, BUCHANAN, and GANTT, J.  

OPINION:

 [*327]  THE COURT dissented from the opinions expressed by the court below, in both of the bills of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

25 of 28 DOCUMENTS 

DAVIS VS. WILSON, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 345; 1808 Md. LEXIS 22 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the County Court of Baltimore. The record in this case contained a bill of exceptions, tendered to the associate justices of the county court by the defendant, (the appellant,) and which was signed, but not sealed, by the justices.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

A paper certified in a record transmitted on appeal, purporting to be a bill of exceptions taken at the trial, was held not to be a bill of exceptions in the case, it not appearing that the seals of the judges of the court below had been affixed to it.

The court of appeals having reversed a judgment of the court below, on the form of proceeding, there being a material variance between the writ and the declaration refused to remit the record with a procedendo.  

COUNSEL:
W. Dorsey and Brice, for the Appellant, contended, that there was a material variance between the writ and the declaration; the former being in the names of William Wilson, and others, and the latter in that of William Wilson alone.

They were proceeding to argue the points raised on the bill of exceptions, when it was discovered that it had not been sealed, as before stated.

THE COURT were about to reverse the judgment on the form of proceedings, and to award a procedendo, when

W. Dorsey contended, that a procedendo ought not to be awarded in a case where the court do not reverse on a bill of exceptions.  

OPINION:

 [*345]  THE COURT considered that there was no bill of exceptions in the case, the seals of the justices not being affixed thereto; but there was error in the form of proceeding, and reversed the judgment without awarding a procedendo.
JUDGMENT REVERSED.  

26 of 28 DOCUMENTS 

LEVERING VS. BOND'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 300; 1808 Md. LEXIS 10 

June, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. This was an action of Trover, brought by the appellee. The plaintiff, at the trial at May term, 1805, read in evidence a receipt from the defendant, and one Lemmon, since deceased, and whom the defendant has survived, in the following words: "Baltimore, 27th Nov. Received from Mr. Robert Spedding, for account of Mr. William S. Bond, eleven hundred and thirty bushels of corn.

Lemmon & Levering."

He also gave in evidence, by the testimony of Robert Spedding, the person by whom the corn in the receipt mentioned was delivered, that the delivery was made the 27th of November 1798, that the corn was the property of William S. Bond, the plaintiff's intestate, by whom it was delivered to the witness, to be sold for the use of Bond; but without any orders or authority to place it in the hands of any other person for sale, in case he could not dispose of it himself. That not being able to sell the corn, he placed it in the warehouse of Lemmon & Levering, who were in the habit of receiving produce on storage, but made no particular agreement with them relative to the amount of storage to be paid, and gave them no orders or authority to sell or dispose [**2]  of the corn. He also gave in evidence, that within a few days after the date of the receipt, and some time in the month of November of December 1798, Bond sent a person to demand the corn from Lemmon & Levering, in his name, who made the demand accordingly, and informed Lemmon & Levering that he was ready to pay the storage, as soon as the corn should be delivered. But that Lemmon & Levering refused to deliver it, declaring that they would retain it for the payment of a debt due them by Bond. The defendant then read in evidence an account, which was admitted in evidence by the plaintiff, for sundry articles sold and delivered by Lemmon & Levering to Bond and one Airs, in which account the corn is credited, and leaving a balance due from Bond & Airs, to Lemmon & Levering, of £  13 9 3. He also gave in evidence, that Airs, in the account mentioned, had departed this life before the time of delivering the corn, and that Bond was then indebted to Lemmon & Levering in the sum of £  917 13 4, as by the account stated. The defendant then prayed the opinion of the court, and their direction to the jury, that if they shall be of opinion, from the evidence, and all the circumstances in proof,  [**3]  that the corn was delivered to Lemmon & Levering, to be applied by them to the credit of Bond, on account of the debt due from him to them, or was placed in their hands with authority to sell it as factors, that then, in either of the said cases, the plaintiff is not entitled to recover.

CHASE, Ch. J. The court are of opinion, that there is no legal evidence, from which the jury can find that the corn was delivered to Lemmon & Levering to be applied by them on account of Bond to the discharge of the debt due from him to them, or was placed in their hands as factors with authority to sell the same. The court therefore refuse to give the direction prayed. The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

In an action of trover for corn placed in the warehouse of the defendants on storage, and which they refused to deliver, but claimed to retain it for the payment of a debt due to them from the plaintiff for articles sold and delivered--Held, that as there was no evidence that the corn was delivered to the defendants, to be applied by them to the discharge of the debt due by the plaintiff to them, or was placed in then hands as factors, with authority to sell the same, the plaintiff was entitled to recover 

COUNSEL:
Harper, for the Appellant; and by

Martin and Key, for the Appellee.  

JUDGES:
The case was argued before TILGHMAN, BUCHANAN, NICHOLSON and GANTT, J.  

OPINION:

 [*301]  JUDGMENT AFFIRMED.  

27 of 28 DOCUMENTS 

MUDD VS. REEVES 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 368; 1808 Md. LEXIS 35 

December, 1808, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Charles County Court. An action of assumpsit was brought by the appellant against the appellee, and the declaration contained counts, for money had and received, for the price of a gelding sold, a quantum meruit for a gelding sold, for money paid, laid out and expended, and for money lent and advanced. The general issue was pleaded. At the trial the plaintiff gave in evidence, that sometime before the bringing the action, he agreed with the defendant to sell him a horse for the sum of $ 60, and that the defendant agreed to pay that sum for the horse; that the horse was to be delivered on the payment of the price agreed upon. That on the day after the agreement, the defendant sent to the plaintiff the paper produced, purporting to be a bank note of the Bank of Baltimore for $ 100. That the person by whom the note was sent delivered it to the plaintiff, who, before receiving it, asked the opinion of one M'Pherson whether the note was genuine or not, who was of opinion that the note was genuine. That the plaintiff delivered the horse, according to the defendant's request, to the person by whom the defendant had sent the note, and the plaintiff also, at the same time, according [**2]  to the defendant's request, paid to the same person, for the defendant, $ 40, being the difference between the sum specified in the note, and the price of the horse. That the defendant received the $ 40. The plaintiff then gave in evidence, that the note was forged. There was no evidence that the defendant or plaintiff knew or suspected that the note was forged, nor was there any evidence that the defendant had endorsed the note, or had expressly warranted it to be genuine; but both plaintiff and defendant considered it genuine at the time. The defendant then prayed the court for their instruction to the jury, and the court, (Key and Clarke, A. J.) according to the defendant's prayer, were of opinion, and did instruct the jury, that if they should be of opinion, from the evidence, that the defendant, at the time he sent the note to the plaintiff, did not know that it was a forged note, or had not endorsed it to the plaintiff, or expressly warranted it to be a good note, that the plaintiff was not entitled to recover; and that the law, from the evidence offered, did not imply a warranty or contract on the part of the defendant to pay the sum specified in the note, to the plaintiff,  [**3]  although the note was forged, unless he knew that the note was forged when he delivered it to the plaintiff, or had endorsed the note, or expressly warranted it to be a genuine one. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff brought this appeal.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The amount expressed in a note, purporting to be a genuine bank note, but which was proved to be forged, may be recovered in an action of assumpsit by the holder of the note from the person of whom he received it, although at the time of its receipt, neither party knew it not to be genuine, and the defendant did not warrant it to be genuine, or endorse it.  

COUNSEL:
T. Buchanan, and Chapman, for the Appellant; and by

C. Dorsey, and Baker, for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J., BUCHANAN, and NICHOLSON, J.  

OPINION:

 [*369]  JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

28 of 28 DOCUMENTS 

HAMMOND, et al. Lessee, vs. NORRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & J. 130; 1807 Md. LEXIS 14 

December, 1807, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the General Court. The appellant brought an action of ejectment for a tract of land called Part of Wood's Inclosure, lying in Frederick county, containing 2286 acres. The defendant, (now appellee,) took defence on warrant under the general issue plea, and by his locations on the plots returned, defended himself under his title to a tract of land called Usher's Freehold, resurveyed for Thomas Usher on the 12th June 1785, and granted to the defendant on the 2d of September 1800. The cause was tried in the general court at May term 1803.

1. The plaintiff having located on the plots a deed from John Howard to Philip Hammond, offered to read in evidence that deed, bearing date the 27th of September 1753, being a deed of bargain and sale by way of mortgage, conveying unto Hammond "all those two parcels of land, being parts of a tract of land called Wood's Inclosure, and sold to the said John Howard by Joseph Wood, one parcel containing 86 acres, the other 94 acres, as by deed duly made, and recorded in the records of Frederick county, appears; the said two parcels of land being also what the said J. Howard's dwelling plantation is made upon; also all that tract of land [**2]  called Chance, lying in Frederick county," &c. To the reading of which deed the defendant's counsel objected, upon the ground that being a mortgage, the plaintiff must show how Howard became possessed of the land, or deduce his title; that although the deed is located on the plots, if it is a bad deed, it cannot be read in evidence to prove a location.

CHASE, Ch. J. a. The court are of opinion, that if a paper or deed is located upon the plots, and not counter-located by the opposite party, the party, who so locates it, may read it to the jury, to show how it is located; but when the validity of the deed comes in question before the court, if it is bad, the court will direct the jury that it is a defective deed, and is to have no effect with them, but to be wholly disregarded.

a Done and Sprigg, J. concurred.

The court think the objection by the defendant's counsel is not a valid one, and that the deed may be read in evidence of the plaintiff's location of it on the plots. The defendant excepted.

2. The plaintiff then read to the jury the deed from J. Howard to P. Hammond, with the permission of the court, (though objected to by the defendant,) as evidence that [**3]  the deed was located upon the plots. It was admitted by the parties, that Wood's Lot and Wood's Inclosure are one and the same tract of land, and that there are two names for the same land. The defendant, to prove that J. Howard never had any interest or title in Wood's Lot or Wood's Inclosure, or in any part thereof, located upon the plots as beginning at a, offered to read in evidence the certificate of the clerk of Frederick county court, under his seal of office, certifying, "that among the records of the said county, from the commencement of the said county up to the year 1775, there is no deed, bond of conveyance, or other instrument of writing, from Joseph Wood to John Howard, for or respecting the land called Wood's Lot, or Wood's Inclosure, except a deed for ninety-four acres."

The plaintiff's counsel objected to the certificate by the clerk of Frederick county court being read in evidence, because, they contended, it was not the duty of the clerk to certify that there were no deeds remaining on record in his office; that his duty was to give exemplifications of such as might appear on record. That the clerk ought to have been subpoenaed, if the party wished the benefit [**4]  of the evidence offered, and examined him as a witness, whether he had searched for, and could not find such deeds.

CHASE, Ch. J. The court are of opinion, that the certificate given by the clerk of Frederick county court is illegal and incompetent evidence, and refuse to let it be read to the jury.

The clerk has no authority by law to certify a fact under the seal of the court of which he is clerk. His duty is to grant exemplifications. The defendant excepted.

3. The defendant then offered evidence, [a witness to prove the confession of J. Howard,] that the land called Part of Wood's Inclosure, included in the certificate thereof, made for J. Howard, and dated the 5th of March 1753, under which the plaintiff claims title, never was actually surveyed under the warrant whereon that certificate is alleged to be founded; that the certificate was not made by Isaac Brooke, the deputy surveyor of Frederick county, or by any other person duly authorized to make the same, but that the same was made by J. Howard himself, by references altogether, without any actual survey.

CHASE, Ch. J. The court refuse to let the defendant give the evidence offered, or any part thereof,  [**5]  to the jury, b. The defendant excepted.

b See Hammond et al. Lessee vs. Sheredine, 4 Harr. & M'Hen. 420.

4. The plaintiff, to make title to the land in the declaration of ejectment mentioned, read in evidence the warrant of resurvey which issued to John Howard, on the 6th of February 1753, "to resurvey part of a tract of land called Wood's Inclosure, originally laid out for 86 acres, to amend all errors, and to add the contiguous vacancy," &c. Also the certificate of survey, dated the 5th of March 1753, made in pursuance of the warrant of resurvey, stating, that "by virtue of a special warrant of resurvey granted to John Howard, to resurvey part of a certain tract of land called Wood's Inclosure, originally laid out for 86 acres, bearing date the 6th of February 1753, to resurvey the said land, to amend all errors, and to add the contiguous vacancy," &c. The surveyor, Isaac Brooke, certified, that he had resurveyed the land, and found no error; that he had added a piece of contiguous vacancy containing 2200 acres, "beginning at the original beginning, and running thence with the original N 68[degrees] W 54 ps. N 19[degrees] W 60 ps. then S 8[degrees] W 81 ps. S [**6]  53[degrees] E 48 ps. S 52[degrees] W 98 ps. N 25[degrees] W 38 ps. N 23[degrees] W 80 ps. N 5[degrees] W 106 ps. N 36[degrees] E 95 ps. to intersect the beginning of the N 7[degrees] E 130 ps. course of a tract of land called Howard's Range, and running with said courses N," &c. &c. "containing 2286 acres of land." Also the assignment of Howard to Philip Hammond, on the 29th of November 1753, annexed to the certificate of survey, whereby Howard assigned to Hammond "the certificate returned on a certain resurvey had and made upon 86 acres of land, being part of a tract of land called Wood's Inclosure, originally taken up by Joseph Wood, together with all his (the said Howard's,) right, &c. of and in the said certificate and the land, which by resurvey contains 2286 acres," &c. Also that the certificate was examined and passed on the 6th of March 1754; the composition money paid on the 7th of March 1754, and the quit rents paid up to the 7th of June 1771, amounting to £  80 5 0. Also other indorsements on the certificate, showing that it was on the 30th of January 1772, caveated by Philip, Rezin, and Matthias Hammond; on the 16th of March 1772, caveated by Edward Dorsey,  [**7]  of John; on the 29th of October 1772, caveated by Thomas Dorsey; that the caveats were dismissed by the act of April session 1782; that there was an entry in the margin of the book, in which the warrant was entered, that a caveat had been entered by Greenbury Ridgely, and others, in 1754, and which had not been noticed when the other caveats were entered dismissed, and a list thereof forwarded by the register of the land office; that the last mentioned caveat of Greenbury Ridgely was withdrawn by Richard Ridgely, his son and heir at law, and that patent had issued on the 9th of September 1796 to Philip, Rezin, and Charles Hammond, and Richard Hopkins, and Hannah his wife. Also the last will and testament of Philip Hammond, (the elder,) dated the 6th of June 1753, wherein it does not appear that the land called Part of Wood's Inclosure is mentioned, but by his will "all the rest and residue of the real and personal estate" of the testator, is devised to his six sons, Charles, John, Philip, Denton, Rezin and Matthias, to be equally divided between them, and their heirs, as tenants in common. The plaintiff also offered in evidence, that P. Hammond, the testator, died some time in the [**8]  year 1760, and that Charles Hammond was his eldest son and heir at law, to whom the title which P. Hammond, the father, had in the land, descended, and who became entitled to all the interest his father had therein c. The plaintiff then deduced a regular title from C. Hammond, down to the lessors of the plaintiff. Also that the tract of land for which this suit is brought, as well as the several tracts or parcels of land described in the grants and deeds aforesaid, are truly located by the plaintiff on the plots. The defendant then offered evidence to prove, that there was no tract of land in the county of Frederick patented by the name of Wood's Inclosure, or so called in the certificate for the same; that a tract of land situate in Frederick county, was on the 10th of January 1748-9, resurveyed for Joseph Wood, by virtue of a warrant of resurvey dated the 28th of July 1748, and patented to him, the 1st of June 1750, for 1540 acres, and called in the certificate and patent thereof, Wood's Lot; that this land did afterwards acquire, in the neighborhood where it lay, the name also of Wood's Inclosure; that a tract of land contiguous thereto, surveyed on the 12th of November 1752, called [**9]  The Request, and located upon the plots, did actually begin at the end of the 19th line of Wood's Lot, but in the certificate thereof, calls to begin at the end of the 19th line of Wood's Inclosure; that several mesne conveyances, for parts of Wood's Lot, executed by the proprietors thereof between the years 1754 and 1759, call and describe the land by the name of Wood's Inclosure. The defendant then read in evidence the patent to Joseph Wood, dated the 25th of March 1747, for the land called Wood's Lot, containing 126 acres, and granted to him for so much land due him by virtue of a warrant for that quantity granted him the 18th of February 1746, which tract is stated to lie in Prince-George's county, and beginning at a bounded oak standing on the E. side of a small branch, &c. agreeably to a certificate dated the 25th of March 1747. The defendant then offered evidence to prove, that Wood's Lot is truly located upon the plots, as beginning at A, and described by black lines from No. 1 to No. 43, black figures. Also that J. Howard never had any interest in, or title to, any part of Wood's Lot, or Wood's Inclosure, either in law or in equity, except as to 94 acres part thereof, which [**10]  94 acres are truly located on the plots; and to prove this, the defendant offered the evidence of the clerk of Frederick county court, the keeper of the land records of that county, to prove, that among the records of the county, from the commencement of the county up to the year 1775, there is no record of any deed, bond of conveyance, or other instrument of writing, from Joseph Wood to J. Howard for or respecting Wood's Lot or Wood's Inclosure, except the deed for the 94 acres above stated. Also the evidence of the clerk of the general court for the western shore, that among the records in his office there is no record of any deed, bond of conveyance, or instrument of writing of any kind, from J. Wood to J. Howard, respecting Wood's Lot or Wood's Inclosure, the plaintiff having on the trial produced no such deed, bond of conveyance, or instrument of writing, or any copy thereof. Also that J. Howard, or any person claiming from or under him, never was seized or possessed of any part or parcel of Wood's Lot or Wood's Inclosure, except the before mentioned 94 acres. Also that the 86 acres of land located by the plaintiff upon the plots, as the original upon which the resurvey called [**11]  Part of Wood's Inclosure is pretended to have been made, was always, from the taking up thereof, to wit, from the 10th of January 1748, till the year 1780, in the possession, occupation, and actual user of J. Wood, the patentee, by actual inclosure of part, and by cutting and using the wood land as to the residue, and during all that time never was, in the whole, or in part, in the possession of J. Howard, or of any person claiming under him. Also, that from the 1st of January 1780, down to this time, the said lands have been, and still are, in the like possession and occupation of the defendant in this cause, claiming under J. Wood, and not under any title derived through or from J. Howard. The defendant then read in evidence a deed from Joseph Wood to Edward Dorsey, for part of Wood's Lot or Wood's Inclosure, dated the 20th of June 1754, and reciting, that on the 21st of June 1750, Wood had conveyed to Dorsey part of Wood's Inclosure, containing 584 acres; that the parties had discovered that patent had issued to Wood for the land, by the name of Wood's Lot, although commonly called and known by the name of Wood's Inclosure. This deed was therefore to confirm the title, &c. Which [**12]  land is truly described on the plots as beginning at red B, and described by yellow lines. That on the 22d of August 1757, E. Dorsey obtained a special warrant to resurvey the part of Wood's Lot so conveyed to him, which warrant stated that he was seized in fee of and in 584 acres of land, part of Wood's Lot, lying in Frederick county, originally, on the 1st of June 1750, granted by patent of confirmation to Joseph Wood for 1540 acres, contiguous to which he had discovered some vacant land, and being desirous to add the same, prayed a special warrant to resurvey his part of the said tract--warrant was therefore granted to him, &c. Also a certificate made for E. Dorsey, bearing date the 18th of February 1758, in virtue of the said warrant, by which certificate it appears that the said part so resurveyed for Dorsey, contained only 564 acres; that 336 acres of vacant land were added, and called The Resurvey on Part of Wood's Lot, containing 900 acres. Also a patent to E. Dorsey for the same land, bearing date the 18th of February 1758. Also that E. Dorsey, the patentee, died previous to the 16th of October 1760, and that the lands descended to his heir at law Thomas Dorsey. Also that [**13]  the land so granted to E. Dorsey is truly located on the plots beginning at B, and described on the plots by blue lines from 1 to 38, red figures, marked at the end of each line with red P W L. Also that E. Dorsey, the patentee, and those claiming under him, held, used and enjoyed, The Resurvey on Part of Wood's Lot, from the date of the certificate thereof, under the aforesaid title, down to the bringing of this ejectment, part of it in cultivation and under actual enclosure, and part being in woods uninclosed, by cutting, using wood on and therefrom; and that J. Howard, or any person under him, never did use, occupy, possess, or in any way enjoy, any part of the lands included in the resurvey called The Resurvey on Part of Wood's Lot, or any part of the lands included within the lines of the resurvey called Part of Wood's Inclosure. The parties in this cause, by consent, examined John Callahan, esquire, the register of the land office for the western shore, who deposed, that according to the law, practice, and usages of the land office, prior to the year 1753, and ever since, no person was entitled to a patent on a certificate returned on a warrant of resurvey, unless such person [**14]  was seized of an estate of freehold in the original whereon the resurvey was made. That by the law, practice and usages aforesaid, from the time aforesaid, if the person so having returned a certificate, and had by the same included vacancy, and had paid to the officer, entitled to receive it, the full amount of caution money for the vacancy added, and the land was, after that payment, included in a subsequent certificate on which the caution money was fully paid, although subsequent to the payment of the first caution money, that in such case, if the prior certificate was caveated in the land office, and it was proved and made appear to the judges of the land office, that neither the person for whom the prior certificate was made, nor any one claiming the certificate, had any legal estate or seizin in the original on which the certificate of the resurvey was made, that then the prior certificate would be, and ought by the said law, practice and usages, to be vacated, and a patent ought to issue on the second or subsequent certificate, if that certificate was not in other respects liable to objection; and that upon so vacating the first certificate, the party claiming the same would [**15]  be entitled to as much land warrant as would amount to the sum of money so paid for caution money. Mr. Callahan, upon cross examination, deposed that he has been in the land office, except fifteen or eighteen months, upwards of thirty-four years; that he came into that office in the year 1767. He knows of no proprietary instructions given, that a person taking out a warrant of resurvey on lands of which he was not seized in fee, and in virtue of that warrant including vacant land and compounding for the same, which prevented such person from having a patent for such vacant land. But that it was the understanding and practice of the office, in his time, that such patent would not be allowed. He knows of no usage or instance, in which a caveat has been heard and determined unless the caveator did show an interest in the lands at the time. He does not know any instance in which the caveat has prevailed unless the caveator had an interest in the land caveated. He knows of no instance in which a certificate made in pursuance of a warrant of resurvey, after composition money paid, by a person not seized of the original, has been caveated and vacated by a person not having an interest at [**16]  the time when the money was paid, but has understood that any lands taken by a common warrant, special warrant or warrant of resurvey, would prevail against such certificate, but he cannot refer to any particular case. According to his understanding and recollection, the payment of the caution money was not made a question where the party obtaining the certificate had no original; but that where a certificate of junior date, regularly made and compounded on, including the same land, though made after the payment of the caution money upon the elder, prevailed. He has no recollection of any particular case, but he always understood the payment of composition money under such circumstances was an unimportant circumstance. He does not recollect any case where a person has entered a caveat alleging himself seized of the original, on which the warrant of resurvey issued to another person. Interrogatories were put to Mr. Callahan by the plaintiff and defendant, to which he answered in the manner set forth in Kilty's Land Holders Assistant, 456, 457 and 458.

c The counsel for the plaintiff, in this part of the statement, which they had drawn up, stated, that C. Hammond had become "seized prout lex postulat," to which the counsel for the defendant objected. THE COURT said these expressions were only proper where a legal title descends--In this case an equitable title only descended to C. Hammond. [**17]  

The plaintiff then offered in evidence that the said Callahan, entered into the land office, as a clerk, in the year 1767, that at that time William Steuart was the chief clerk, and so continued till the year 1774, when David Steuart succeeded him and continued to hold that office until 1777; that Saint George Peale was appointed register of that office the 21st of April 1777, and so continued till the year 1779, when the said Callahan was appointed; and that during the time William Steuart was the chief clerk Saint George Peale was principal acting clerk under him, and also under David Stewart, both of whom had several other clerks in that office. And the parties, by consent, also examined the Honourable Alexander Contee Hanson, chancellor of the state, and judge of the land office, who deposed and answered the several questions propounded by the counsel of the parties as they are set forth in Kilty's Land Holder's Assistant, 445 to 456, 460 to 465. Which evidence was delivered by the register of the land office for the western shore, and by the Judge of that office, in open court, and reduced to writing by them respectively; and the testimony by them so respectively given was,  [**18]  by consent of the parties, agreed to be received, to operate so far as the same is legal and proper. The plaintiff also read in evidence certain proprietary regulations or instructions. [Which see in Kilty's Land Holder's Assistant.] The defendant then offered to prove, that the certificate for Part of Wood's Inclosure had never been returned into the land office, until after E. Dorsey had obtained his patent for The Resurvey on Part of Wood's Lot, to wit, till after the 18th of February 1753; that E. Dorsey, and those claiming under him, have regularly paid the quit rents upon the whole of The Resurvey on Part of Wood's Lot, from the 18th of February 1758, to the commencement of the revolutionary war between the United States and Great Britain, and have ever since paid the public taxes and county levies and dues thereon. The plaintiff then prayed the opinion of the court, and their direction to the jury, that the patent which issued on the 9th of September 1796, to Philip, Rezin, and Charles Hammond, and Richard Hopkins, and Hannah his wife, will, by relation to the date of the certificate of survey, be effectual to pass a title to all the vacant land included therein, notwithstanding [**19]  John Howard had no right or estate of, in and to, the eighty-six acres of land on which the warrant issued, and notwithstanding the same may have been included in Edward Dorsey's resurvey aforesaid.

CHASE, Ch. J. In deciding the question before the court, it will be necessary to consider the efficient qualities of the different kinds of warrants which are used to take up vacant land, cultivated or uncultivated.

A common warrant may be located on any uncultivated land in the county, to the surveyor of which the warrant is directed, if no person has acquired a right of pre-emption to such vacant land.

A special warrant is used to affect cultivated land, in which the location and the quantity of acres are designated, and the party pays the composition money at or before the time of granting the warrant, for the number of acres so directed. The survey is then made within the usual time of six months, for ascertaining with more exactitude and precision the land thus affected. If on the survey being made it appears to the party that he has not as much land as he paid for, he can apply the surplus of his warrant to affect any vacant land, which a common warrant is competent [**20]  to take, whether it lies in contiguity or detached from the land so located in his warrant.

A warrant of resurvey is taken out for the purpose of resurveying a tract or parcel of land in which the party has a fee simple. In virtue of such warrant, the party acquires a right of pre-emption in all the adjoining vacancy, and if he makes his survey, and pays the caution money within two years from the date of his warrant, he has a complete equitable interest in all the vacancy included in his survey.

The question for decision now occurs, can a person, who takes out a warrant of resurvey without having a title to the land to be resurveyed, acquire a title in the vacant land taken up and included in such resurvey?

The court are of opinion, that such warrant will operate as a common warrant, and affect any vacant land which a common warrant was competent to affect; and that, if the jury find the facts as stated, that an equitable interest vested in John Howard on the 7th of March 1754, when the composition money was paid, in all the vacancy included in his resurvey, and that the patent obtained in 1796, and granted to Charles, Philip, and Rezin Hammond, and Hannah Hopkins,  [**21]  wife of Richard Hopkins, will operate by relation to the date of the certificate of resurvey, if it appears to the jury that the certificate was returned to the land office previous to the time when Edward Dorsey obtained his grant, which is stated to be on the 18th of February 1758. That, in the opinion of the court, unless that fact is found by the jury, Edward Dorsey was a fair purchaser without notice of the equitable interest of John Howard, and the grant of Edward Dorsey cannot be over-reached or defeated by relation. The defendant excepted.

5. The defendant then prayed the court for their opinion and direction to the jury, that if they were satisfied from the evidence, that by the rules and regulations of the land office in the year 1753, and since, the certificate of resurvey, under which the plaintiff now claims, was liable and subject to be vacated upon a caveat, notwithstanding the payment of the composition money thereon, if J. Howard, for whom the same was made, had no estate or seisin in the original tract, so resurveyed, and that upon the certificate being so vacated, the vacant land so included therein, and also included by E. Dorsey in his certificate of resurvey [**22]  called The Resurvey on Part of Wood's Lot, as above stated, if the last certificate was compounded on in time, and in all other respects conformed to the rules and regulations of the land office, might legally, properly and regularly, be granted to E. Dorsey, and being so granted, that the plaintiff had no title under the grant for Part of Wood's Inclosure to any part of the land so included within the patent to E. Dorsey, for The Resurvey on Part of Wood's Lot.

CHASE, Ch. J. The court cannot give the opinion and direction prayed for. The defendant excepted.

6. The plaintiff then gave in evidence the patent of Wood's Lot, granted to Joseph Wood on the 25th of March 1747, for 126 acres of land. Also a resurvey made thereon by Wood, and the patent granted to him on the 1st of June 1750, for 1540 acres of land, and called Wood's Lot; and that the same lands are truly located on the plots. Also, that the resurvey called Wood's Lot, was known in the neighborhood by the name of Wood's Inclosure, and that Wood's Lot, the resurvey, and Wood's Inclosure, were one and the same tract of land. Also a certificate of resurvey made by J. Howard of Part of Wood's Inclosure, surveyed on the [**23]  5th of March 1753. He then deduced the title to the said land down to the lessors of the plaintiff. He then offered in evidence the deed dated the 21st of June 1750, from J. Wood to J. Howard, for 94 acres of land, being part of Wood's Lot, and called Wood's Inclosure; and that the same is truly located by him on the plots. Also a deed from J. Wood to E. Dorsey for a part of Wood's Lot, dated the 20th of June 1754; and that the same is truly located by him on the plots. He then produced, and offered to read in evidence, the deed from J. Howard to P. Hammond, dated the 27th of September 1753, herein before mentioned in the first bill of exceptions; and showed, that the 86 acres of land therein mentioned, were located by him on the plots, beginning at the end of the 27th line of Wood's Lot, as located by him at black a, and running, &c. to the beginning; and to prove that to be the true location thereof, he offered to give in evidence the deed, and the resurvey made by E. Dorsey on the 18th of February 1758, on the land so conveyed by J. Wood to Dorsey, and called The Resurvey on Part of Wood's Lot; and that the resurvey is truly located by him on the plots; and that the 35th line of [**24]  that resurvey strikes the end of the third line of the 86 acres, and then runs three lines thereof reversed to the beginning of the 86 acres, and thence to its beginning at black B, excluding the 86 acres. He further offered to prove, that after the death of E. Dorsey, the land contained in the last mentioned resurvey and patent descended to T. Dorsey his heir. Also that the devisees of P. Hammond, the assignee, claimed the land contained in the certificate, so assigned, as personal property, and that C. Hammond, his heir, claimed the same as land not devised by the will. Also, that a caveat was entered by the devisees against the issuing of a patent to C. Hammond on the certificate, and which caveat was endorsed and noted on the certificate on the 30th of January 1772. He also offered in evidence, a deed dated the 17th of November 1779, from Philip and Rezin, two of the devisees, to Matthias Hammond, one other of the devisees, for their interest in the two tracts mentioned in the deed from J. Howard to P. Hammond, their father, and in which the 86 acres are described by the following metes and bounds, to wit: "Beginning at the end of the 27th course of the land called Wood's Inclosure,  [**25]  and running" &c. and that the same are the beginning, courses, metes and bounds, by which the plaintiff hath located the 86 acres on the plots. Also a deed dated the 17th of November 1779 from M. Hammond to B. Warfield, conveying all his right and interest to the two parcels of land mentioned in the deed from J. Howard to P. Hammond to be conveyed, and in that deed the 86 acres of land are described as contained within the same metes and bounds and beginning at the same place. And that Warfield did, in consequence of that deed, enter upon and possess the parcels of land therein mentioned, and that afterwards, in the year 1790, he sold his interest and right in the two parcels of land to T. Dorsey, and gave up the two parcels of land to T. Dorsey. Also an original deed, dated the 14th of March 1772, from C. Hammond, heir at law of P. Hammond, to his brother J. Hammond, one of the devisees, for his interest and estate in the two parcels of land. And that J. Hammond, in his life-time, sold all his interest in the two parcels of land to T. Dorsey; that both C. & J. Hammond departed this life antecedent to the 22d of June 1784, and that W. Hammond was the son and heir of J. Hammond; and [**26]  that on the 22d of June 1784, W. Hammond, in consideration of the payment to him by T. Dorsey of the sum of £  23 7 6, the balance of the purchase money then due from T. Dorsey, under the sale by his father, did execute a deed to T. Dorsey, conveying to him all his right and interest in the two parcels of land. And that T. Dorsey, so being entitled, as heir at law, to the lands contained in the resurvey made by E. Dorsey, and having so purchased the two parcels of land mentioned in the deed from J. Howard to the first mentioned P. Hammond, afterwards, on the 27th of September 1784, entered into a contract in writing, under seal, with Thomas Usher, for the sale of certain lands, and among others, the 86 acres, and that the 86 acres in that contract are described as being purchased by P. Hammond, in his life-time, on the 9th of November 1751, of a certain J. Howard, and as having been bought by T. Dorsey of the devisees of P. Hammond, and as having been sold by J. Howard to P. Hammond, and purchased by T. Dorsey; and having proved the execution of the contract, offered to read the same in evidence. He also offered to give in evidence a deed from T. Dorsey to T. Usher, dated the 12th [**27]  of February 1785, for the several tracts of lands in the contract mentioned; and that the courses, lines and metes, mentioned in the deed, are truly located on the plots by the plaintiff, and do include the whole of the 86 acres as located by the plaintiff, and that one line thereof strikes the second line of the 86 acres, as located by the plaintiff, and runs thence to the end thereof, then with the 3d, 4th, 5th, and 6th lines of the plaintiffs' location of the 86 acres, and then with the given line, to its beginning at black a, and thence to black B, the beginning of the deed; and that in the deed there was a covenant of warranty as to the parts of the resurvey on Wood's Lot contained in the said deed, against T. Dorsey, his heirs and assigns, and against J. Howard, and his heirs and assigns only. Also a deed from T. Dorsey to T. Usher, dated the 27th of May 1785, for the same lands, describing them in the same manner, but containing a general warranty. And that T. Usher did, by virtue of the deeds to him, enter into and take possession of the lands so conveyed by T. Dorsey, and among other parts thereof, of the 86 acres, so sold to him by T. Dorsey, and so located, and made a resurvey [**28]  thereon, and returned a certificate of resurvey, dated the 12th of June 1785, called Usher's Freehold, and that the same is truly located on the plots by the plaintiff; and that the lines thereof include the whole of the 86 acres, striking the same at the same place, and running with it in the same manner as the deed from T. Dorsey to T. Usher, and that T. Usher was possessed of the land so contained in his certificate, until his death, which happened about January 1786. That T. Usher, by his will appointed T U, S J, J U, & J D, executors thereof, and did devise, direct, and empower them, or the survivors or survivor of them, to make sale of all and every part of his real estate, and to execute deeds for the same, to the purchasers thereof, in fee simple; and that the executors did take upon themselves the execution of the will, and obtained, in due form of law, letters testamentary. That after the death of T. Usher, one John Salmon filed a bill in the court of chancery against the devisees and executors of T. Usher, to compel a sale of his real estate for the payment of his debts; that it was so proceeded in that suit, that a decree was made for the sale thereof; and that by virtue [**29]  of that decree, the said lands were sold to divers persons, as stated in a report thereof returned to the court of chancery, and by the chancellor approved, ratified and confirmed. That the part of the land located by the defendant as his defence, was purchased by Catharine Usher, widow of T. Usher, and by her sold to the defendant, who entered into and possessed the same under that sale. That it was agreed that the patent upon the certificate so returned by T. Usher should, for convenience, be granted to the defendant, and that he should then convey to the several purchasers under the decree, the respective parts respectively by them purchased; that the patent was so issued, and conveyances so made, and that the respective purchasers of the land, so contained in the certificate returned by T. Usher, did enter upon and possess the parts thereof by them respectively purchased, by virtue of the title of T. Usher, and the sales under the decree. And that after the death of T. Usher, his executors claimed the whole land contained in the certificate, so by him returned, under his title. Also a deed from Joseph Wood, the patentee, to Jonathan Wood, his son, but not his heir at law, dated [**30]  the 4th of March 1780, for "all that tract or parcel of land, being part of a tract called The Resurvey on Wood's Lot, beginning at the end of the 27th line of the said resurvey on Wood's Lot, and running," &c. "containing 153 acres of land," &c. And that the 153 acres included the 86 acres of land mentioned in the deed from J. Howard to P. Hammond, and are the same 86 acres of land located by the plaintiff as the 86 acres sold to T. Usher by T. Dorsey. Also a deed, dated 9th May 1785, by Jonathan Wood, executed in due form of law, to the executors of T. Usher, to confirm their title to the 86 acres, in which it is expressed, "that doubts had arisen in regard to the title of 86 acres, part of a tract of land sold by T. Dorsey to the said T. Usher," and that in consequence Jonathan Wood conveyed to the executors of T. Usher, all his right and title to the 86 acres, to begin at the end of the 27th course of Wood's Inclosure, and running thence, &c. That the courses and beginning, so described by the heir of Joseph Wood, under whom J. Howard claimed the 86 acres, are exactly correspondent with the location of the 86 acres made on the plots by the plaintiff. That before and at the time [**31]  when the said deed was executed, the executors were possessed of the 86 acres, according to the location under the title of T. Usher, and that the 86 acres were the same 86 acres mentioned in the deed from J. Howard to P. Hammond, and which had thus been conveyed to P. Hammond, and which had thus been conveyed to Warfield, and to T. Dorsey, and on which J. Howard made his resurvey; and that no person whatever has had any possession of the 86 acres, located as the plaintiff hath located the same, except J. Howard, and those claiming from and under him. Evidence was then offered, that no deed could be found on record from Joseph Wood to J. Howard for the 86 acres.

CHASE, Ch. J. The deed from J. Howard to P. Hammond of the 27th of September 1753, does not sufficiently specify the land, being for 86 acres, and 94 acres, parts of Wood's Inclosure, "conveyed by Joseph Wood to John Howard, as appears by deed recorded in Frederick county," but the deed thus referred to cannot be found. This deed does not define the 86 acres by any courses or distances, there is, therefore, nothing in it whereby any locatable land can be conveyed, and of course passes nothing, and passing nothing it cannot [**32]  be evidence. Nothing but the deed itself can prove the location of the land recited in the deed now offered to be read to the jury. The court are therefore of opinion, that the deed from J. Howard to P. Hammond is not legal evidence to show title in Hammond in the 86 acres of land, part of Wood's Inclosure, as located on the plots by the plaintiff, or to support his location of the same, without producing the deed from Joseph Wood to J. Howard, to which the deed from J. Howard to Hammond doth refer, to ascertain and identify the 86 acres intended to pass by the same; and that the deed is inoperative to pass the same, without producing that deed. The court refuse therefore to suffer the same to be read to the jury.

The court are also of opinion, that the facts and circumstances, stated by the plaintiff, are inadmissible to prove the location of the 86 acres, and the court refuse to suffer the same to be read to the jury for that purpose, or to show title in P. Hammond in the 86 acres of land. The plaintiff excepted.

7. The plaintiff then, in order further to prove that J. Wood did execute to J. Howard some conveyance for the 86 acres of land, or some bond or contract for the [**33]  conveying to Howard the 86 acres, by the same metes and bounds, and beginning as located by the plaintiff, offered to give in evidence the deed from Howard to P. Hammond, and the resurvey made by E. Dorsey on the 18th of February 1758, on the land so conveyed by Wood to Dorsey, and that the resurvey is truly located, &c.

CHASE, Ch. J. delivered the same opinion as that given on the prayer in the preceding bill of exceptions, and then proceeded as follows: The court are also of opinion, that the facts and circumstances, stated by the plaintiff, are inadmissible to prove, that Joseph Wood did execute to John Howard a conveyance for the 86 acres of land, or a bond, or contract, for the conveying to Howard the 86 acres by the same metes and bounds, and beginning as located by the plaintiff; and do accordingly refuse to allow the same to be given in evidence to the jury. The plaintiff excepted.

8. The plaintiff then prayed the opinion and direction of the court to the jury, that unless they are satisfied, from the evidence, of the true position of the beginning of the 86 acres of land, on which the resurvey called Part of Wood's Inclosure was made, or the beginning of that resurvey,  [**34]  and for which land this suit is brought, that then they have a right, and are bound by law, to ascertain a place of beginning, by reversing the first nine courses of that resurvey without variation, or with such variation as they think right, from the place marked a on the plots, at red figures 27, and red P W L, and that unless they are satisfied, from the evidence, of the place where the 104th line of the resurvey calls for, that then the true location of the land is to be ascertained by running the lines of the resurvey from the place marked on the plots at q, without or with such variation as they think proper, until the given line shall intersect and close with the beginning so found by reversing as aforesaid. And that the jury are by law competent to draw lines on the plots, to ascertain the true position of the land in the declaration mentioned, or to make such description thereof, in their verdict, as shall fix the true position of the same, notwithstanding there are no such lines on the plots at this time located. And in case they have evidence, to satisfy their minds, of the true original beginning of the resurvey made by Wood, and for which this suit is brought, and that [**35]  the same is at a place different from what is located by either the plaintiff or the defendant, that then they are to begin at the place so proved, and run the first eight courses of the grant, without or with such variation as they think most proper, to correspond with the original location; and that the ninth course must be run to its call at a, red 27, red P W L; and in case they have not evidence to establish the place called for at the termination of the 104th line, that then they have a right, and are bound, to locate the lines from q, with or without variation, as they think proper, until the given line shall intersect and close with the place of beginning. And that the jury are by law competent to draw lines on the plots to ascertain the true position of the land, or to make such description thereof in their verdict as shall fix the true position of the land, notwithstanding there are no such lines on the plots at this time located. And on fixing such location the plaintiff is entitled to their verdict for all such land as is included within their finding, and which is also contained in the locations of the plaintiff of Part of Wood's Inclosure, and for which the defendant [**36]  hath taken defence.

CHASE, Ch. J. The court cannot give the direction prayed on the part of the plaintiff, inasmuch as the plaintiff has not made any location on the plots to warrant the court in directing the jury to find a beginning for the plaintiff, different from that located at the letter G, as the beginning of Part of Wood's Inclosure, the plaintiff having made only one location of the beginning of that tract of land, and the same having been counter-located by the defendant.

The chief judge said, that the plaintiff must make such locations as will suit his case. He has made two from the same beginning, one of which the jury must find, if they find for the plaintiff. It is customary, in order to meet the variation of the compass, to make sundry locations, so as to have one which the jury may find. The plaintiff relies upon his locations; and the jury cannot find a location of their own, but must find some one of the locations made by the plaintiff, if they find for the plaintiff. The plaintiff excepted.

On motion of the plaintiff's counsel, leave was given by the court to withdraw a juror, for the purpose of amending the plots; but the plots were amended by consent [**37]  of the parties without withdrawing a juror, and the trial continued.

9. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if the beginning of J. Howard's resurvey is lost, or cannot be proved, then the beginning of the same is to be found by reversing the lines from the first known and established boundary; and that the holders under that resurvey are entitled to all the land within that resurvey located from such beginning so found, unless taken away by elder surveys.

THE COURT gave the direction to the jury as prayed.

Verdict and judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A deed located on the plots, and not counter-located by the opposite party may be read by the party locating it, to show how it is located, but when its validity comes in question if it is bad, it is to have no effect.

The clerk of a court has no authority by law to certify a feet under seal; his duty is to grant exemplifications

Parol evidence is not admitted to prove that a tract of land included in a certificate of survey, never was actually surveyed by the surveyor.

Parol evidence admitted with the consent of the parties, to prove the law, practice and usages, of the land office, before the revolution.

The efficient qualities of the different kinds of warrants used to take up vacant lands, set out

A person who takes out a warrant of resurvey, without having a title to the original tract resurveyed, acquires an equitable interest in the vacant land added, when the composition money is paid; and his grant therefor will relate to the date of the certificate of resurvey, if it appears that his certificate was returned to the land office previous to the time when a prior grant for the same land issued on a junior certificate of survey, made and compounded on after the composition money was paid upon his certificate: and unless it was so returned, the prior grantee was a fair purchaser without notice of such equitable interest, and his grant cannot be overreached or defeated by relation.

The court refused to direct the jury, that if they were satisfied from the evidence, that by the rules of the land office the certificate of resurvey, under which the plaintiff claims, was liable to be vacated upon a caveat, though the composition money was paid thereon, if J. H, for whom the same was made, had no estate in the original tract, and that upon the certificate being so vacated, the vacant land included therein, and also included by E. D. in his certificate, if compounded on in time, might legally be granted to E D. and being so granted, that the plaintiff has no title under his grant to any part of the land so included in the grant to E D

A deed for 86 acres of land, (being part of a tract,) without courses or distances, but referring to another deed, (not produced,) to ascertain the same, is not legal evidence to show title, or to support the location thereof on the plots, without producing the deed to which it refers.

Nor were certain facts and circumstances admissible to prove the location of the 86 acres, or to show title thereto, or that the deed referred to, or some bond or contract for conveying the 86 acres by metes and bounds, &c. as located on the plots, had ever been executed

Where the plaintiff has made but one location on the plots of the beginning of the land for which the ejectment is brought, and that is counter-located, the jury cannot find a beginning for the plaintiff different from that located by him

The plaintiff must make such locations of the land upon the plots as will suit his case

The jury cannot find a location of their own, but must find some one of the plaintiff's, if they find for him

If the beginning of a tract of land is lost or cannot be proved, then the beginning is to be found by reversing the lines of the tract from the first known and established boundary

The clerk of a court has no authority by law to certify a fact under the seal of the court. His duty is to grant exemplifications

Parol evidence not admitted to prove that a tract of land included in a certificate of survey never was actually surveyed by the surveyor

Parol evidence admitted, with the consent of the parties, to prove the law, practice, and usages of the land office.

A common warrant may be located on any uncultivated vacant land in the county, if no person has acquired a right of pre-emption to such vacant land.

A special warrant is used to affect cultivated vacant land, in which the location and quantity of acres are designated and the party pays the composition money at the time of obtaining the warrant.

A warrant of resurvey is taken out for the purpose of resurveying a tract or parcel of land in which the party has a fee simple. The party thereby acquires a right of preemption in all the adjoining vacant land.

A person obtaining a warrant of resurvey, not having a title to the original tract resurveyed, acquires an equitable interest in the vacant land added, when the composition money is paid; and his grant therefor will relate to the date of the certificate of resurvey, if his certificate was returned to the land office when a prior grant for the same land was issued on a junior certificate of survey, not compounded on until after the composition money was paid on his certificate.

The court refused to direct the jury, that if they were satisfied from the evidence that, by the rules of the land-office, the certificate of resurvey, under which the plaintiff claims, was liable to be vacated upon a caveat, that the composition money was paid there on, if J. H. for whom the same was made, had no estate or set in its the original tract, and that upon the certificate being so vacated, the vacant land included therein, and also included by E. D. in his junior certificate, if compounded on in time, might legally be granted to E. D. and being to granted, that the plaintiff and the title under his grant to any part of the land so included in the grant to E, D.

A deed for 85 acres, being part of a tract of land, without courses or distances, but referring to another deed, which cannot be found, to identify the same, is not legal evidence to show title or to support the location thereof on the plots. Nor were certain facts and circumstances admissible to prove the location of the 86 acres, or to show title thereto.

Nor that the deed referred to, or some bond or contract for conveying the 86 acres by the metes and bounds, &c. as located on the plots, had ever been executed.

Where the plaintiff has made but one location on the plots of the beginning of the land for which the ejectment is bro't, and that is counter-located, the jury cannot find a beginning for the plaintiff different from that located by him.

The plaintiff must make such locations on the plots as will suit his case.

The jury cannot find a location of their own, but must find some one of the plaintiff's, if they find for him.

If the beginning of a tract of land is lost, or cannot be proved, then it is to be found by reversing the lines from the first known and established boundary.  

COUNSEL:
Martin, (Attorney General,) Key and Johnson, for the plaintiff, cited 18 Vin. Ab. tit. Relation, 289, 290. Garretson's Lessee vs. Cole, 2 Harr. & M'Hen. 459. Howard's Lessee vs. Cromwell, 1 Harr. & Johns. 115. Gibson's Lessee vs. Smith, Ibid. 253. Lloyd vs. Gordon, 2 Harr. & M'Hen. 254.

Shaaff, Mason and Harper, for the defendant, cited Co. Litt. 150. a. Ringgold's Lessee vs Malott, 1 Harr. & Johns. 299. 3 Coke, 28, 29, 30. Anon. 3 Atk. 314. Townsend vs Ash, Ibid 340. 2 Shep. Ab. (3d part,) 149, 150,  [**38]  151, 152. Bladen's Lessee vs Cockey, 1 Harr. & M'Hen. 234. 3 Lev. 285. 2 Vent. 89, 200. Cro. Jac. 512. 10 Coke, 49. Hath's Lessee vs Polk, 1 Harr. & M'Hen. 363. 3 Blk. Com. 43. 2 Roll. Rep. 502. Jenk. 428. 18 Vin. Ab. tit. Relation, 290, pl. 8. Selwin vs Selwin, 2 Burr. 1134. S. C. 1 W. Blk. Rep. 222, 223. Roe vs Griffits, 4 Burr. 1962. Doe vs Roe, Ibid 1971. 2 Roll. Ab. 399. Garretson vs Cole, 1 Harr. & Johns, 370. Beall's Lessee vs Beall, Ibid 347. Peter's Lessee vs Mains, 4 Harr. & M'Hen. 423. Cheney vs Ringgold's Lessee, (ante 87.) West's Lessee vs Hughes, 1 Harr. & Johns. 13. Lloyd vs Tilghman, 1 Harr. & M'Hen. 85.

Mason, Shaaff, and Harper, for the defendant, objected to the reading of the deed from J. Howard to P. Hammond, dated the 27th of September 1753, to prove the location of the 86 acres. They cited Co. Litt. 352. b. 3 Com. Dig. (E. 4.) 274.

Martin, (Attorney General,) Key and Johnson, contra, cited Gitting's Lessee vs Hall, 1 Harr. & Johns. 14. The Earl of Sussex vs Temple et al. 1 Ld. Raym. 311; and Gilb. L. E. 100.

Martin, (Attorney General,) and Key, for the plaintiff, cited the act of November 1781, ch. 20, s 14, and Carroll, et al. Lessee vs E. & S.  [**39]  Norwood, 1 Harr. & Johns. 167.

Shaaff, for the defendant, cited Kirkpatrick's Lessee vs Kyger, 1 Harr. & Johns. 298, and Webb's Lessee vs Beard, Ibid 349.

Key, and Johnson (Attorney General,) for the Appellant, in their arguments stated, that under the sixth and seventh bills of exceptions two questions occurred--1. Whether Howard had title to the 86 acres of land upon which his resurvey was made? And 2. Whether sufficient evidence was offered to the jury to establish the location of the 86 acres on the plots? They contended that there was sufficient evidence for the court to direct the jury to presume a deed from Wood to Howard. At all events that the evidence ought to have been suffered to go to the jury for them to judge whether or not such a deed had ever been executed. They cited Gilb. L. E. 98. Gitting's Lessee vs. Hall, 1 Harr. & Johns. 14.

On the eighth bill of exceptions they contended, that the jury had a right to draw lines on the plots, or in any other manner they might think proper, in order to find the beginning of the land in controversy, although the beginning so found might be at a different place from that located on the plots by either of the parties.  [**40]  They cited Darnall's Lessee vs. Goodwin, 1 Harr. & Johns. 282. Carroll et al. Lessee vs. Norwood, Ibid 186.

Shaaff and Harper, for the Appellee, in their arguments on the sixth and seventh bills of exceptions, cited Vaugh. 74. Gilb. L. E. 99. Morris's Lessee vs. Vanderen, 1 Dall. Rep. 67. Com. Dig. tit. Evidence, (B 5.) Smith vs. The Vestry, &c. in this court on the E. S.

On the eighth bill of exceptions they insisted that the plaintiff could not give evidence that the beginning of the land, for which he brought his ejectment, was at a different place than that claimed by his locations on the plots. They cited Kirkpatrick's Lessee vs. Kyger, 1 Harr. & Johns. 289. Webb's Lessee vs. Beard, Ibid 349. Hughes's Lessee vs. Howard, decided in Baltimore county court, and now on appeal in this court.

Curia adv. vult.  

JUDGES:
The cause was argued at the last term before TILGHMAN, NICHOLSON, and GANTT, J. NICHOLSON, J., concurring in part and dissenting in part.  

OPINION:

 [*151]  THE COURT, at this term, decided that there was no error in the opinions given by the general court in either of the bills of exceptions taken on the part of the plaintiff below.
NICHOLSON, J. concurred,  [**41]  except as to the opinion given in the eighth bill of exceptions, and from that opinion he dissented,
JUDGMENT AFFIRMED.