CUNNINGHAM v. BROWNING.—1 BLAND. 29T

as that the survey had not been made according to the rules of
the land office; or, as in case of an alleged escheat, that the late,
owner had not died intestate and without heirs as averred by the
applicant, Land Ho. AM. 381;(g) or if the lands are actually es-

(g) AISQUITH v. GODMAN.—It appears from the statement of facts agreed on
by the parties, that of lot No. 40, in the City of Baltimore, a certain William
Nicholson was seized in fee simple on the 20th of June, 1761: and, being so
seized, he made his will, and thereby devised it to his niece Elizabeth Con-
nell, in fee tail general, remainder to his brother John Nicholsoa, of the
County of Cumberland, in England, and his heirs: which said John Nichol-
son never was a citizen of the State of Maryland;—That William Aisquith,
the caveator, intermarried with Elizabeth Connell, the devisee, by whom he
had issue a son. John Aisquith;—that Elizabeth Aisquith, died on the first of
January. 1782, leaving her husband, the present caveator, in possession of the
lot. and their only child, John Aisquith. who died intestate and without issue
on the 1st of July. 1785. It is further stated, that the caveator took out a
warrant of escheat on the 15th of October. 1785, to affect said lot. and re-
turned a certificate thereof, but did not compound thereon: and the cavea-
tee, Samuel Godman, on the 3rd of June. 1796, proclanaated the said certifi-
cate, and returned his certificate thereof to the office on the 29th of May,
1797; on which the said Aisquith entered a caveat against a patent issuing
thereon; alleging, that by the laws of this country, the said lot is not liable
to be affected by an escheat warrant, and is not escheatable.

HANSON. C., S4th May, 1798.—The said caveat being submitted to the
Chancellor, on a statement of facts, signed by the counsel on each side, the
said statement, and the certificate, and all other papers thereto relative,
were by the Chancellor read and considered.

It appears to him. that the facts contained in that statement are conclusive
for the caveator. It is stated, that Elizabeth, the wife of the caveator, being
tenant in tail of the land in question, died in 1782, leaving one child only, a
son, who died without issue in 1785; that after her death a warrant of es-
cheat was taken out by the caveator. who returned a certificate: and that,
on his failing to compound, the defendant took out a warrant of proclama-
tion, and returned the certificate which is caveated.

There is no rule in this office better established than this.—that the validity
of a proclamation warrant must depend on the warrant, under which the
land intended to be affected by the proclamation warrant, was surveyed.
In the present case, it is clear, from the statement, that the escheat warrant,
under which the survey, proclamated by the defendant, was made, was in-
valid. The Act of November. 1781. ch. 20, sec. 8, expressly says, that no
escheat warrant shall be good, unless the owner (that is. the person on
whose death it issued) hath died seized in fee simple. But here the warrant
recites the dying seized of the aforesaid Elizabeth Aisquith as the ground of
the escheat; and it appears from the defendant's own shewing, that she did
Dot die seized in fee simple; but that the land descended from her to her
son, as issue in tail, and ao attempt is made to show, that the land was other-
wise liable to escheat.

The admission of the parties, which is at least equal to the result of a trial
at law, has precluded a point, which might perhaps have been otherwise
made.

Upon the whole, it is adjudged, and ordered, that the caveat of William
Aisquith against Samuel Godman's certificate of lot No. 40, in the City of