UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 Faculty library
 
 EEPORT9 
 
 CASES 
 
 ARGUED AND DETERMINES 
 IK THE 
 
 COURT OF APPEALS 
 
 MARYLAND, 
 
 IN 1806, 1807, 1808, & iSOfc 
 
 BY THOMAS HARRIS, 
 
 Clerk of the Court of .Appeal*. 
 
 REVERDY JOHNSON, 
 
 Attorney at Law 
 
 VOLUME ii.; 
 
 HCRffldCtAlifll 
 
 ANNAPOLIS: 
 PRINTED BY JONAS GREEN/
 
 \i 
 
 COP
 
 ERRATA* 
 
 58 25 For appellees read appellee. 
 
 64 19 In the margin For (~E. S.J read f W. S.} 
 
 89 1 Erase after the word Delight in the first line to and including the WOJ\J 
 
 Delight in the third line. 
 
 96 7 After this line insert JUDGMENT AFFIBMEII. 
 
 97 22 Before May insert inverted commas. 
 
 99 3 Of the marginal note. For effect read affect, 
 
 102 32 For the plaintiff read him the defendant. 
 
 104 41 For 1796 read 1706. 
 
 113 1 for pro ut re&dprout 
 
 190 32 Erase in. 
 
 193 27 For 1766 read 1796. 
 
 230 56 Of the marginal note. For liberal 'read literal. 
 
 245 4 After band insert, which was executed to t/te Proprietary on tht %Qth of 
 
 January, 1774. 
 
 251 33 For by read to try. 
 
 253 -30 Before called insert inverted commas^ 
 
 258 22 For Laws read Lawsori, ' 
 
 378 39 Erase not. 
 
 408 1 For trustee read trustees. 
 
 IN THE INDEX, 
 
 520 tit. CONVEYANCE 10, line 5. For 4 read 44. 
 
 521 tit. COURT OF CHANCERY. 13, line 4. After such insert matter? 
 
 533 tit. EJECTMENT 35, line 18. After was insert no. 
 
 543 tit. EXECUTORS &, ADMINISTRATORS 8, line 1. For the executor, 
 read an executor de son tort. 
 
 550 tit. HEIR 1, line 3. For it read ini and after being insert a comma, 
 
 555 ^t, LOCATION or LANDS 8, line 23. After the, insert two.
 
 NAMES OF TKE JUDGES, &c. 
 
 DUHING THE FERIOD GOMPBISED IN THIS VQJ.UME. 
 
 OF THE COURT OF APPE.M 
 
 Hon. JF.HSMTAII TGAVSLKY CIUSE, Chief Judge. 
 
 lion. ...VKS Tir.iiMA v, Judge. ' 
 
 Hon. WILLIAM POLK, do. 
 
 Hon. joiix HrcHANAS, do. 
 
 Hon. JOSKPH Hori'KR NICHOLSON, do. 
 
 Hon. Joiuf MACKALL GASTT, do. 
 
 Hon. KlCHAIlD TjLUH>lA> KAHLE.(.l) d<>. 
 
 OF, THE COURT OF CHANCERY 
 
 Hon. ALETASPETI CO^TF.U HANSCS, Chancellor. 
 Mou. WILLIAM KiLT)f,(b) do. 
 
 OF THE LATE GENERAL COURT. 
 
 Hon. .Tf.nF.MTAH TOWN-LET CHASK, Chief Judge. 
 Hon. GABHIKL DUVALL, Judge. 
 Hon. JOHN T)OXK, do. 
 
 Hon. RICHAHD SrajGG,(c) do 
 
 OF THE I.ATE COUNTY COURTS. 
 
 FIRST TirsTRTCT Sainf-Afctry's, Culvert, Chnrlr? nnd Prince- Geortfffg Counties. 
 Hon. MiniAi:r. JF.NIKKU STOM;, Chief Justice, appointed 17th 'of January 1791, 
 Hon. HifHiHji SPMIKG, do. dp. 2<Sth of January 18U2. 
 
 Hon. joujf MA KALL GAXTT, do. do'. 1 1th of February 1803. 
 
 sr.i'o\T> i>isTnirT^-rVe// f Kf.nf, Qtieen-^lnne's and Tafbot Connties. 
 
 lion. JA.MES TILBHMAX, Chief Justice,' uppomtcd l~tii of January 1791. 
 
 TIITHD IHSTJIICT Anne-Jtrundel, Baltimore and Ifurford Counties. 
 
 HOIJ. Hf.Niir RjjieELT, Chief Justice, appointed 25th of Nbytmber 1796. 
 
 TOVRTII T>isTRicT-~-Crw//'/7e, DorcJiCftci', Somerset and Wonetttr Counties. 
 
 Hon. 'WILLIAM WI.'ITTIXCTOS, Chief Justice, 'appointed 25th 'of Fi-lmiary 1799. 
 
 Hon. WILLIAM POLK, do. do. 28tl\ ' of January 18UV?. 
 
 FIFTH DISTRICT Washington, Frederick^ Mmtgomcry nnd .v//fr/r>y Counties. 
 Hon. RICHAHD POTTS, Chief Justice, appointed ]5th of October 17Po. 
 Hon. WILLIAM CHAIK, : do. do. 20th of f)ctober 1801. 
 
 Hon. AViLHAM CiArr(iicTT, do. do. 28th of January Io02. 
 
 OF THE NEW COUNTY' COURTS. 
 
 IRST JPIMCIAL DISTRICT .Sa//-J/rtry'*, Charl;j and Frinec-G&trgt's Coiiiitic*. 
 Ion. JOHN MVCRAT.L GAN'TT, Chief Judge. 
 Ion. F.DMCNn KKY, Associate Judge. 
 Ion. DASIEI CLAIIK.^, do. 
 
 (.-!> AppninteiT the 20ih of May 1SOO tn fill tiie vacnncy o<-cn<iojir(t 1>y the <!pa!h of J.nl-jr T/'- ^^ii.i. 
 
 00 A|)|iiiiie<1 I be 25th ol'-hiimary 1S06 in tho p'ai-e o'f Ch:,;!. Ha-'-n'ri, li.-t. axil. ' 
 
 (cj Appo-nl-d tbt 0'U ol Dfvfuib.v Jt'J- lo liil iflt r^cajicj octaiii ;:^il i.y ilm rtslg-i:;uiiii ut Juduc
 
 yj. NAMES OF JUDGES, fcc." 
 
 SECOND JUDICIAL DISTRICT C,cil, Kt.nl, Qu<en-Jbtne'* and Thibet 
 
 Jlon. JAMZS TILBHMAX, Chief Judge 
 
 lion. I. EMI EL I'l-RvtLL, Associate Judge. 
 
 Hun. Enw \RD WORRELL, do. 
 
 ]ion. KICUARD TILMIMA* EAHLE, Cuief Judge (d). 
 
 THIRD JUDICIAL DiSTRicTOrti^r/, Annt-Arundd and Montgomery Counties. 
 Jlon. JsmzxiAH TawxLST CHASE, Cliief Judge. 
 lion. MKXRT KIOOKLT, Associate Judge. 
 lion HIIHARD HALL Hi uwnuu, do. 
 
 OTRTH jrnif IAL niSTRirr Carolint, Dorchester, Svmcrtetznd. Worcester Counties ^ 
 Hon. WILLIAM POLK, Chief Judge. 
 lion. JOHN Dour., Associate Judge. 
 Hon. JAXEB B. HOB BINS, do. 
 
 TIFTH JUDICIAL DISTRICT Frederick, Washington and AlUg any 
 
 Hon. JOH* Bt THAXAS, Clief Judge. 
 
 Hon. WILLIAM CLAGOETT, Associate Judge. 
 
 Hon. ABRAHAM Sinn MR, do. 
 
 eixTH JUDICIAL DISTRICT Baltimore and Harford Counties. 
 Hon. Joir.ru HOPPF.R NKHULSOIT, Cliiet' Judge. 
 Hon. THOMAS JUNKS, Associate Judge. 
 
 HOD. ZSBl-LOS IIOLLIKSSWORTU, do. 
 
 OF THE* COURT OF OVER & TERMINER, 8cc. 
 
 Hn, WitTiH DonsiY, Chief Justice, appointed 9th of Februar}- 1800^ 
 Hon. JOHN SCOTT, do. do. 5th of April 
 
 ATTORNEY GENERAL. 
 
 Luthrr Martin, Esquire, appointed llth of February 1778. 
 William Pinknei/, Esquire, do. ?lst of, December 1805. 
 John Thompson Mason, Esquire, do. 12th of July 1806. 
 John Johnson, Esquire, do. ISth of October 1806. 
 
 fd) Appointed the 20th uf Ms; 1109 in the plact Clu J. Tilthman, deceased.
 
 A TABLE 
 
 OF THE 
 
 NAMES OF THE CASES 
 
 N. B. The letter v follows the name of the Appellant or Plaintiff in error; 
 ftnd the word and that of the Appellee or Defendant in error. 
 
 A. 
 
 Allen r Stewart & Patten, 258 f notej 
 
 Amos i> Robinson, et al. 321 
 Attorney-General and Lawson, 
 
 259 C notej 
 
 v Jarrett, 472 
 
 . . .- and Singery * 487 
 
 B. 
 
 Baker v The State* 5 
 
 ' and Hoffman, 486 
 
 Barnes v Blackiston, et al. 376 
 
 Beall, etal. Lessee v Harv/ood* 167 
 
 and Hamilton, 414 
 
 Beanes and Leeke's Adm'r. D. B. N. 
 
 373 
 
 Beard v Hcicle, 442 
 
 Beatty's Adm'rs. Chapline, 7 
 
 Bennett &. Drury v Negro Grace, 356 
 
 Berr>% use of Burgess t> Nicholls, 508 
 
 Iticknell and Worthington, et al. 58 
 
 Biddlc & Gray v Wood, et ux. 328 
 
 Biggs and Sheeley, 3f>3 
 
 Blackiston, et al. and Barnes, 376 
 
 Blake and Ruttcr, 353 
 
 Bond's Adm'r. and Levering, 300 
 
 Boreing's Lessee v Singery, 455 
 
 and Singery, 487 
 
 Boswcll and Shorter, 359 
 
 Bowie's Adm'r. and Gantt, 374 
 
 Brawneranrf G. Sc J. Chapman, 352 
 
 Brayton qnd Fget, 350 
 
 Brogden v Walker's Ex'r. Legatees & 
 
 Devisees, 285 
 
 Ei-ooke a/id Winchester, et al. 1 
 
 Bryden v Taylor, 295 
 
 Burgess r Nicolls, 5 US 
 
 Burk v The State, 426 
 
 C. 
 
 Chapin v Cruikshanks, 247 
 
 Chapline and Realty's Adm'rs. 7 
 
 Chapman, G. & J. v Brawner, 366 
 Cheney v Ringgold, et al. Lessee, 87 
 Chew's Lessee Weems, 173 fnotej 
 
 Christie & Jay and Goverj 67 
 
 Clarke ? Magruder, et aL 77 
 
 Coleg-ate awrf Lynch, 34 
 
 Conner and Hay, et aL 347 
 
 Contee ?> Cooke, 17$> 
 
 Conway's Adm'r. and foe, 307 
 
 Cooke and Contee, 179 
 
 Cruikshanks and Chapin, 247 
 
 Cushrnan v Sim's Adm'r. 352 
 
 D. 
 
 Bail and Wingate, 76 
 
 Dannison r Robinett, et al. 55 
 
 Davis r Wilson, et al. 345 
 
 's Lessee v Davis's heirs, 295 
 
 , et ux. r Walsh, 329 
 
 De Laistre and De bobry, Ex'r. of ]>e 
 
 Laistrc, 191 
 
 Dennis and Negro George, 45-1
 
 viu. 
 
 !> REPORTED. 
 
 ;-f !) ! 
 
 Lai- l'.l\ 
 
 \ devisees, 
 
 4G 
 
 Jlorry r (!:ir..v* 402 
 
 y's F.x'rs. 
 
 480 
 Drury Bennett c N'cgro Grace, 356 
 
 r.. 
 
 Kilcleii nnri IFrimp- MI, 61 
 
 : s Adm'r. 1). I). N. v Thompson's 
 
 M4 
 
 Fajrct o Brayton, 
 
 F. 
 
 J30 
 
 r;. 
 
 Gnither anil Ne^ro James, 176 
 
 Morrison, 461 
 
 : r tto\vie' .Vlm'r. 374 
 
 ami Norfolk's Kx'r. de son fort, 
 
 435 
 
 ftusavray o/u/Dorscv, 402 
 
 lil. tfii// Huntt fi Parks, 49H 
 
 <;iu'mirs' Lessee and Hall, 380 
 
 .Ir's Li'^ce rt/J/2 Mall, 1 1 J 
 
 (i<>M>l)oro(iifli's Lessee and Keys 8t Me- 
 
 nn, 369 
 
 ' i an// Smith St Dticlianan, 367 
 
 t . r ? Christie it Jay, 67 
 
 '. <-t :"!. 186 
 
 * Hidillc v Wood, et n\. 
 
 M . .; I . vice, 
 mi'! I I.ill, 4S.1 
 
 t.iiiiliy P Scll>y, 244 
 
 , et al. Lessee and Martin & 
 
 S mi tli, 248 
 
 Tf. 
 
 r* Devisees v Oickson's Heirft, 
 
 46 
 
 H v!l t- Gittln^s Jrs. Leuee, H2 
 . r <iiMin>fs\ Lessee, 380 
 . r (iriflitli, 4>3 
 
 n v Ik-all, etftl. 41 I 
 flnmmond, et al. Lessee v Norris, I'M 
 v Warli.-ld, I -I 
 
 r Ilig-pint, ct nx. 443 
 , r ton, 4tfi 
 
 m i len, 6 
 : \ViNon, 
 il, ct al. Lesser, 
 icr, 
 
 379 
 167 
 347 
 442 
 
 llrrou Ji Key* r Goldsborough'j Le.v 
 
 sec, 369 
 
 >. et <\\. and H.nmmond, 43 
 
 i ami William*, 4~l 
 
 48o 
 
 ", l-t al. r M'fToV, .V-1 
 
 71 worth, et us. f McDonald, et al. 
 ttO 
 
 Hopkins r Stump, et al. SOt 
 
 IlOWHrd r Moalc, i-t al. Lessee, JJ'.t 
 
 " und Ni'gro Cato, -V3 
 
 Hughes r O'Doniu-ll, TV24 
 
 lluntt i Parks v Gist, et al. 4U3 
 
 J. 
 
 Jarrctt am/ Tbe Attorney Genera!, 7 
 
 Jay id ' hristio ami liover, 67 
 Johnson and Kocke, 37 fnotc.J 
 
 Jones, et al. c Jones, Uil 
 
 53 
 
 KL. 
 
 Reefer r Young 1 , 
 v Marker 
 
 Keys &i Heron v Goldsborough's Lt-^- 
 see, ;1G'J 
 
 Gam. v Swan's Adm'.v 344 
 
 L. 
 
 Laidlcr r Young's Lessee, 69 
 
 Lanham and Tolson's Lessee, 174 
 
 Lawson r The Attorney General, 
 
 259 (n1r. ) 
 
 Leeke's Adm'r. D. B. N. r Bcanes, 373 
 Lewfag v Bond's Alm'r. 300 
 
 Loudcnaan, Gara. of Harrison v Wil- 
 M.II, 379 
 
 Lynch v Colegute, 34 
 
 M. 
 
 M'CoyGarn. of Kinglar Swan's Adm'x. 
 
 314. 
 
 and Hogmirc, ot :d. 351 
 
 M'Doitald, et al. and llolling.sworth, et 
 ux. '230 
 
 and Wagner 346 
 
 M'Kldeny v Smith's Lessee, 7i 
 
 M'Mcclicn v The Mayor 8tc. of Balti- 
 more, 41 
 Magill and Browning, 38 
 Magruder, et al. ana C larkc, 77 
 Marker and Kecfer, 55 ('note. ) 
 Martin & Smith r Gunby, ct al. L . 
 
 Mayor &c. of Baltimore and M 'Mcchen, 
 
 41 
 
 Moale, ct al. Lessee and Howard, 2+5 
 Morrison c Galloway, 461 
 
 Muse, ct al. Lessee and Greene, 62 
 
 N. 
 
 Nejfro Cato v Howard, 32;! 
 
 ~. - .Innics v Ci^-thcr, 176 
 
 Grace and Bennett & Drury, 
 
 3)6 
 
 Genrpe v Dcnni*. 454 
 
 Nirlii)lls and Mcrrv use ot' Bnrgtrs*, 5i>* 
 Norfolk'* Exr. dt MH tcrt v Gantt, 435 
 Norri-i nml Hammond, etal. Lessee, 130 
 Norwootl v Norwood, 23 
 
 . i. 'g Lessee a/kiOwIng*^ 96
 
 CASES REPORTED. 
 
 IX. 
 
 O. 
 
 Oden and The State, 108 (note.} 
 O'Donncll and Hughes, 324 
 
 Owin^a v JNorwood's Lessee, % 
 
 P. 
 
 Parks & Hunt v Gist, et al. 493 
 
 Parsons and Pollitt, 61 
 
 Partridge's Adm'x. v Partridge's Adm'x. 
 
 63 
 Patten & Stewart and Allen, 
 
 258 C note. } 
 
 Poe v Comvay's Adm'r. 307 
 
 Pollitt v Parsons, 61 
 
 R. 
 
 Ratrie v Sanders, 32-4 
 
 Jleeves and Muclcl, 368 
 
 Kcinicker v Smith, 421 
 
 Uidsdale, et al. and Grant, ' 136 
 Kinggold, et al. Lessee and Cheney, 87 
 Itizcr and Tomlinson, 444 
 
 Kobinett, et al. and Dannison, 5 
 
 Kobinson, et al. and Amos, 321 
 
 lloclie v jolinson. 37 (~ni.de.} 
 
 Kutter v Blake, 353 
 
 S. 
 
 Sanders and Ratrie, 327 
 
 Sappinglun and Hammond, 4-16 
 
 Saundcrs, et ux, v Simpson, et ux. 81 
 
 - and Siiapuou, et ux. Lessee, 
 
 bit (~iwte. ) 
 
 Selhy and Gunby, 244 
 
 Siiecley v Biggs, 363 
 
 Shorter v Bosvvell, 359 
 
 Simpson, et ux. end Saundars, et ux. bl 
 
 - -' Lessee v Sounders, 
 
 o2 C?iofc.J 
 
 Singery and Boreing's Lessee, 455 
 
 - v Attorney Cjcneral, 487 
 Slade, et ux. and Morg-un, 33 
 
 and Wilson's Ex.'rs. 2s I 
 
 Smith and Iteinicker, 
 
 - , et al. v Smith, et al. 314 
 
 - - - v The State, 471 
 
 Smith & Buchanan v Gorton, 367 
 
 ; 's Lessee and M'Elderry, 72 
 
 -; Martin v Gunby, et al. Les- 
 
 see, 
 
 S tailings and Weems, 
 State (The) and Baker, 
 -. v Oden, - 
 
 i and Burke, 
 
 and Smith, et al. 
 
 365 
 
 471 
 
 Stewart &. Patten and Allen, 
 
 258 fnote.J 
 
 Stump, et al. and Hopkins, 301 
 
 Swan's Adm'x. and Al'Coy, Gam. of 
 
 Kinjjla, 3*4 
 
 T. 
 
 Taylor and Bryden, 296 
 
 Terrier's Ex'r.-v Terrier, 191 
 
 Thomas v Thomas, 506 
 Thompson's Ex'x. and Emory's Adm'r. 
 
 D.B. N. 244 
 
 Tolson's Lessee v Lanham, 174 
 
 Tomlinson v Kizer, 444 
 
 346 
 
 w. 
 
 Wagner v M'Donald, 
 
 Walker's Ex'r. &.c. 
 
 Wulsh and Uavis, et ux. 329 
 
 Wartield and Hammond, et al. Lessee, 
 
 . 151 
 Weems v Stallings, 365 
 
 - au^C he \v's Lessee, \~j(nole.J 
 West v Jarrett, 472 
 Williams v Hodgson, *?4 
 Wilson and Louderman, Garn. of Har- 
 
 rison, 379 
 
 - 's Ex'rs. v Sliide, et ux. 281 
 
 - , et al. and Davis, 3V5 
 Winchester, et al. v Brooke, 
 W'ingate v Dale, 76 
 Wood, et ux. and Gray & Biddle, 328 
 Worthington, et al. v Bicknell, 58 
 
 Y. 
 
 Young 1 and Keefer, 
 ..... -'i Lessee and Laidler, 69
 
 CASES ' 
 
 AftGUED AND DETERMINED 
 
 IN THE 
 
 MARYLAND. 
 
 COURT OF APPEALS, JUNE TERM, 1806. 
 
 WINCHESTER, et al. vs. BROOKE. 
 APPEAL from a decree of the Court of Chancery. The s - "_"> ld an ^ 
 
 J traim* rred to E 
 
 bill, filed by the present appellee, stated that Brooke, the jj|; I ^ , t jj! e \ n ,J' 
 complainant, being possessed of and entitled to 80 shares J^ efo ^ s "^ 
 ef stock in the Bank of Columbia, and being desirous of s^U^J^nsou 
 disposing thereof, did, in May 1795, make application to [ewd "'hi.^rol 
 Solomon, one of the defendants, who at that time acted as K"L 'beS'^f 
 broker in Baltimore, to sell them for him. That Solomon trustees' "H the 
 informed Brooke he had a commission to purchase shares ed'th. proceed*, 
 in the Bank of Columbia for a gentleman in Philadelphia, SB* again* s^ 
 
 . ,. _. nd the trustees, 
 
 and that he would, and did purchase the shares of Brooke, claiming to be 
 
 pid the nott'j out 
 
 for which Solomon agreed to give, and did give to him, his f ^? jm.ce-.', O f 
 
 ~ th. sale of the 
 
 promissory notes for 82424, the one half payable in 26 st<>t<k - " p-fer- 
 
 * ence (o the other 
 
 days, and the other half payable in 28 days, and the shares ^f''he"'waj ee not 
 were transferred by Brooke to Solomon. That Solomon, p^'fi-.elice^ * uth 
 in 4 or 5 days after the date of the notes, became bank- ^Vu'c^med*" 
 rupt, and on the 18th of May 1795, made and executed a J $ ' JLjT*; 
 deed of trust to Winchester, &c. the other defendants, of "L%, th " ^ 
 his effects and property, in trust, to be distributed among cred?ton e ' e wh"tc 
 his creditors. That under and in virtue of the assign- an<i m ' ;*o r wi> 
 
 . . .._.. , 011- ii r>f\ ''"" amiHiiit of che 
 
 ment, the assignees, IFinchester, &c. lay claim to the 80 state i.<i claim* 
 
 shares, (Solomon not having disposed thereof for a fair lt" 'ho a w the pro- 
 portion \vhic 
 -creditor) claiming the preference, a entitled to, in cara he bad no right to a preference. 
 
 VOL. II. 1
 
 \ HIK K.i RTOF A1VI. Nl.~ 
 
 ;,n.t u whatever before 
 
 1 1 H Udure,) they alleging that the - r the nett pro 
 
 be applied equally among all the cre- 
 ditors of Solotntm; alt)'.' h that ' ie aat k 
 an cyuilut/lr /, i hereof, i 
 prel'i -'her of the creditor* of Solomon, the 
 share* having been a fnntl created on the credit of the notes, 
 and not 1 1 to a purchaser for a ra 
 luable consideration, without notice of Mich n]uita/>le lien. 
 That Jirooke hath applied to the assignees, Jllnchester, &c. 
 who refuse to pay him the amount of the shares, or the 
 talue thermf. allying; that lirooke hath not any preference 
 to the other creditors. Prayer, that the defendants be 
 coiiipiTu-d to pay to the complainant the said shares, or 
 the value thereof, in preference of tin: other ireditoi- it 
 Solomon, and true and perfect answers make, &c. Also to 
 uit with ami pay to the complainant the >aid -hares, 
 or the Talue ami nett proceeds thereof, in satisfaction of 
 1 that the complainant may ha\e such other 
 lemedy in t!..- j.reini-.-- u* i!ie nature of his case doth ov 
 may require, &.c. 
 
 The antu'er of ff inche-iter, S>ic. so far as 'm material, 
 stated, that when Solomon executed the deed of trust to 
 tin-in, In- v.a^ in- ilvent, a.nl owed large sums of money to 
 several persons, far exceeding the value of all the property 
 and effects which he was interested in, or had any title to. 
 That these defendants had no notice, ;it the execution of 
 the deed, that .So/wnon was indebted to the complainant, 
 or any other person, for the 80- shares. Th.it the^e defen- 
 dants, ;ill ol whom are the creditors of .Wo7o;i, did, in 
 July 1799, sell the shar 1.1. That they are will- 
 
 ing to pay to the complainant his proportion ol all i, 
 vhirh they received in virtue of the deed, anil have al- 
 ways been willing to pay the same; but the complainant 
 has refused to mAe a'i% ajiplication therefor. The\ 
 that the complainant lias no lien, either equitable or 
 on the shares, or the mi>ne\ aii-iiii; from the sale-, then-of, 
 for the payment of the notes, as the share-* uei, |.'<rally 
 transferred to Solomon, antl by him to these, defendant-. 
 They say, that they have been informed by Solomon, anfl 
 believe the fact to be, that Solomon purchased the bhaie- 
 on his account, and fur his OWR benefit uutl use.
 
 OF MARYLAND. 3 
 
 The answer of Solomon is similar to the preceding an- 1806. 
 swer. That at the time he executed the deed of trust, he 
 was indebted to a number of persons far exceeding the va- 
 lue of the property and effects to which he was entitled. 
 That he did not inform the trustees, at the time he execut- 
 ed the deed, or at any time before, that he had not paid 
 the complainant for the 80 shares. That after the execu- 
 tion of the deed he did not interfere in the administration. 
 f his effects, but the same, since that period, has been un- 
 der the entire and exclusive control of the trustees. That 
 an the 18th of May 1795, and after the execution of the 
 deed, he was arrested at the suit of some of his creditors, 
 and confined in gaol in BaltimQrc; and that on the suc- 
 ceeding day the certificate of the transfer of the 80 
 shares was received by the trustees. He positively denies 
 .be ever told the complainant that he had a commission to 
 purchase shares in the Bank of Columbia, or in any other 
 bank, for a gentleman in Philadelphia, or any other place 
 whatever, or that he acted as a broker in making the con- 
 Iract with the complainant; but he expressly says, that he 
 purchased the shares on his own account, and for his own 
 use and benefit. That the complainant, about 18 montlw 
 after the purchase of the shares, applied to this defendant 
 to sign an instrument of writing, stating that he had pur- 
 chased the shares on commission, which he refused to do. 
 
 Testimony. That the trustees of Solomon sold at auc- 
 tion 80 shares in the Bank of Columbia, to John Mun- 
 nickuysen, on the 22d of July 1799, for S2480, which, af- 
 ter deducting duties and commission, amounted to Jg2413. 
 That Charles owndes, in May or June 1799, requested 
 Munnicjiuysen to purchase for him 80 shares in the Bank 
 ef Columbia, who purchased the same for him for 31 dol- 
 lars a share, amounting to S2480. That the shares had 
 been previously held by Lowndes in trust for the trustees 
 ef Solomon. That the dividends had been paid to the 
 trustees. That after the sale to Munnickuysert, for the be- 
 nefit of Lowndes, the shares were transferred to Lowndea. 
 By the Auditors statement, the defendants are charged 
 with the nett amount of the sales of the 80 shares at 
 auction, S2413 00 
 
 Also with dividends received, and interest 
 thereon to the 22d of July 1799, 1 184 14 
 
 S597 14
 
 CAM H of Al'l'KAf.- 
 
 1806. They were credited with Hi dollars paid n 
 
 v v-"-' etch of the shares, to complete tin? pay meats 
 due to the bank on the har. ilit- 
 
 eti with thedivii'euda and interest arising there- 
 on as charged, ) 28 
 
 Balance due to complainant, 82697 65 
 
 II\vsox. ( 24th of March 1803,) being of 
 
 opinion that the complainant was entitled t" p.ivmrnt ! 
 two note*, given to him by the defendant, Solomon, on- 
 account of eL - of (W?/;/iiabank stock, tun-ler 
 
 red by the riunplainant to Solomon, out of the nett pro- 
 ceeds arising from the sale of the bank stock, so far as 
 the same would extend, in preference to the other credi 
 tors of Solomon Decreed, that the defendants, Winches 
 ttr, &c. pay to the complainant the sum of fc2f>97 85 
 cents, the same being the amount of the dividends and 
 nett proceeds of three fourth parts of the sales of the 
 eighty bank shares, according to the statement thereof made 
 by the auditor of this court, together with interest, till 
 paid, from the service of this decree. That the coin pi ai 
 nant and defendants sustain the costs by them respectively 
 expended in the prosecution and defence of this Miit. 
 
 The chancellor does not conceive that interest can !> 
 allowed, as proposed by the counsel, viz.. from the 22d of 
 July 1799 to the 24th of Man-h 1803. If it were allow- 
 ed it munt t-ither be charged to the trustees, or must come 
 out of the estate of the in-solvent, to the prejudice of other 
 creditors. The latter would be surely unreasonable, 
 
 not appear that tin- trustees h;ne i<< 
 interest. From this decree the defendants, I fine/tester, 
 &c. appealed to thin court. 
 
 The cause was argued t)fio: C'h. J. TII-.I! 
 
 POLK, Bicii \N \\. .Ni' ''\sii,J. 
 
 1 and relied on 77//is vt. 
 
 Huntl, 3 '/' /'. 464. /.i'.'.'-'irron vs. Mason, '2 T. /, 
 Barnes vt. Frttlmul, T> '/'. II. 80. Green vs. farmer, 4 
 //in-,-. : M . /:.,).',rte Ockenden, 1 Jitk. 235. Polluj- 
 Moore, Utk. -i::,. Walker vt. Pretwick,* Vet. 622. 2 
 AW/, fib. 0-2, /;/. 1, '^6. Brennan vs. Current. ' 
 i. Coin, Dig. tit. Agreement, (B. 3.) Bon
 
 OF MARYLAND. 
 
 ent,9. fern. 281. Fawellvs. Htdis, dmbl. 724. Grimes 180G. 
 
 is. French, 2 Atk. 141; awl Wttlpole vs. Orford, 3 
 
 416. 
 
 Shaaff, for the appellee, referred to Ridgdy vs. Carey, 
 4 Jfarr. $ bPlltn. 167. He contended that the decree of 
 the chancellor might be supported by the allegations and 
 proof, independently of the principle of lien, as it did not 
 appear that any person, but the complainant, had a right 
 to the proceeds arising from the sale of the stock. 
 
 TII.GHMAN, J. It is inconceivable how the chancellor 
 could take the case up on the ground of preference. 
 
 THE COURT OF APPEALS were about to affirm the decree 
 of the court of chancery, inasmuch as it did not appear 
 by the record that there were any other creditors but the 
 complainant, whose claims had been proved and were al- 
 lowed; nor had the trustees set forth the amount of the es- 
 tate of Solomon, and the amount of the claims against the 
 state, so as to ghow the proportion which the complainant 
 was entitled to, in case he was not entitled to a prefer- 
 ence; but the counsel for the appellants 
 
 DISMISSED THE APPEAL. 
 
 BAKER vs. THE STATE. JUNE. 
 
 ERROR to Charles county court in a criminal prosecu- A . Far( - Table rt 
 
 up in a hou', noc 
 
 tion. The indictment stated, that Baker, (the piaintift' in jj,,^" K ^i^i 
 error,) on the 21st of March 1803, "unlawfully did set up^jj^!^^ 
 a Faro 7'able, for the purpose of gaming, in a house in ^'"fe^ce i* n !}r 
 Charles Town, in the county aforesaid, by the said John $?. no! which!* 
 Bckf.r for that purpose rented, against the form of the act n) Ct Tai'ac"' no L*~. 
 of assembly in that case made and provided, and against k. pt or'mamtam- 
 the peace, dignity, and government of the state." Not nV-houwf out! 
 Guilty was pleaded. At the trial the attorney for the state, i'i!i l iiTti U b l y p an>* w" 
 
 ... . . vi-rn ketper, re> 
 
 to support and maintain the prosecution, gave m evidence taiie.," & c . 
 
 Whether or not 
 
 to the inry that Hotter, the travel ser, was a resident of the the court can re- 
 
 ~ fine lo permit the 
 
 city of Baltimore, and on the 21st of March 1803. came co v mel "V 8 cr ' mi - 
 
 nal case from r- 
 
 from the city of Baltimore to Port-Tobacco, in Charles ^^^^^ 
 county, where he rented a house of a certain /. E. Ford, ^^Tf'^embf, 11 , 
 for the term of fifteen days, and that the traverser did, on b e n t ca,i, < d" l '!l, a ,a 
 the day and year aforesaid, set up a Faro Bank, and played !" f, lV to ai ih" sl "ci" 
 at Faro in the house rented by him of Ford. The traverser 2 " enr '
 
 ES IN HIE COURT OF APPEALS 
 
 1806. gave in evidence to the jury, that the place aforesaid wa# 
 i dweliing-hoateocevpted by any tavern-keeper, n 
 
 ol \urie. -|iinui<>u-, lic|ui>r-, lu-cr or cider; and that it was 
 not an out-house occupied l>\ any tavern-keeper, retailer 
 uf v 'ions liquors, beer or cider, or place occu- 
 
 pied by any tavern-keeper, retailer of Mine, spirituous li- 
 quors, beer "i cider. The attorney for the state then pray- 
 -d the court to direct and instruct the jury, that if they 
 find from the hat linker did set up a Faro TalnV 
 
 and play at Faro in the house stated in the indictment, ther 
 ought to find a verdict for the state. To which praver the 
 traverser, by his counsel ohjected, and contended before 
 the court that he was no: guilty of any oflcnce against the 
 act of assembly, entitled, ".#n act to prevent 
 gaming," unless the jury should find from the evidence. 
 that the place aforesaid was a dwelling-house occupied by * 
 
 n-keeper, retailer of wine, spirituous liquors, beer or 
 cider, or an out-house occupied by a tavern-keeper, retail- 
 er of wine, spirituous liquors, beer or cider, or place oc- 
 cupied by a tavern-keeper, retailer of wine, spirituous li- 
 quor*, beer or cider. But the court, (Gantt, t'h. J.) in- 
 structed and directed the jury, agreeably to the prayer of 
 the attorney for the state, and refused to permit the conn- 
 M-l for the traverser to ar^ue to the jury on the 'instruc- 
 tion of the act of assembly as contended for by him in his 
 objection to the prayer of the prosecutor. Whereupon tin 
 traverser, by his counsel, prayed leave to except to the 
 opinion and direction of the court to the jury, and also to 
 the opinion of the court, in refusing to permit him by his 
 counsel to argue on the construction of the act of assem- 
 bly, and that the court would sign and seal thi- his bill ol 
 exce! d'u t uuilry, and judgment that the tra- 
 
 be fund, and forfeit and pay to the state the sum of 
 
 . unent money for the offence aforesaid, &c. To re 
 Terse which ji: the traverser brought the present 
 
 writ of error. 
 
 The cause was argued In Tore CHASE, Ch.J. TILGHMAK, 
 , and NICHOLSON, J. 
 
 T. Buchanan, for the plaintiff in error, referred to the 
 act of 1797, ch. 110. The second section of which de- 
 clares tl at "no E O, A B C, L 8 D, or Faro Table, or other 
 device, except billiard tables, for the purpose of gaming
 
 OF MARYLAND. 
 
 for money, shall be set up, kept or maintained, in any 1806. 
 dwelling house, out-house, or place occupied by any ta- 
 vern-keeper, retailer of wine, spirituous liquors, beer or 
 cider, whether such person have a licence or not, on pain 
 of forfeiting every such E O, ABC, LS D table, or 
 other device, and of forfeiting, moreover, for every offence, 
 the sum of fifty pounds current money, upon conviction 
 thereof by indictment," &c. And the third section declares, 
 "that if any tavern-keeper shall permit any E O, A B C, 
 LSD, or Faro Table, or other device, to be set up, kept 
 or played, in his or her tavern, out-house, or place apper- 
 taining or near to the same, hi or her licence, upon con- 
 viction thereof, shall be void, to all intents and purposes." 
 He also referred to the act of 1803, ch. 75, to shew the 
 construction given by the legislature to the act of 1797. 
 ch. 110. 
 
 Scott, for the State. 
 
 CHASE, Ch. J. delivered the opinion of the court, de- 
 claring that the act of 1797, ch. 110, only applied to dwel- 
 ling-houses, out-houses, and places occupied by tavern- 
 keepers, &c. No opinion was given as to the question 
 whether or not the court below were right in refusing to 
 permit the counsel for the traverser to argue to the jury 
 upon the construction which they had given to the act of 
 assembly, in their direction to the jury, on the prayer 
 which was made by counsel. The chief judge said he was 
 prepared to give his opinion that the counsel had no such 
 right, after he had called upon the court to give a con- 
 struction to the act, and the court had done ao. 
 
 JUDGMENT REVERSED. 
 
 BEATTY'S Adm'rs. vs. CHAPLINE. DECEMBER. 
 
 IN this case a writ of fieri facias issued on the 7th of, A fter . a /"* 
 
 '' J facia* has been 
 
 April 1806, on a judgment rendered in the late general )*}' *" d J 1 ,^ 
 court, at October term 1805, returnable to this court in ^dTrr'a^rit"^ 
 June last. At which time the sheriff, to whom the writ fj ( {{fo^ lth 
 was directed and delivered, returned the same to this ^ not P optc 
 court, endorsed thereon, that he did, on the 16th of April p^oce^tWlliV.dc! 
 1806, lay the same on the goods and lands of the defen- l e 
 flant, but that he was prevented frem making sale of the
 
 CASKS IN THE Cei v RT OF APPEAL? 
 
 fS06. property by the production of a n <:'ift> ate that a \M 
 
 error had issued, (bond with security having been first 
 given and appnm-d.) on the 21st of April 1806. A mo- 
 tion was made on the part of the plaintiffs for a writ of 
 venditioni cxponeu, whicli motion \\a (ontimn-d until this 
 term, when it \\a> argued In-fore ' i i. J. Ti 
 
 WAN, BUCHANAN, NICHOI.SO , VTT, J. 
 
 Mason, for the motion, contended, lh.it a writ of error 
 WM no rttpfrxedeas to a writ of fieri farina which had beei* 
 laid previous to the t the writ of error; that an 
 
 I ,tn entire thing, and when once begun, must 
 be completed. In his aignment he cited the act of : 
 h.4. Charier vs. Petrr, Cm. f.'li:.T. M>r, 
 flyer, 98, 99. Sure r.t. Sheffnn. -: Roll. .1hr. 4M1, pi. 5. 
 Jbib pi. 6. Tocock vs. fronyman, Yilr. f>. .'1z'cx rs. Len- 
 Ihall, :> fCr'ili. 308. Meriton vs. Sttvens* //"<"// >'v ]}rp. 
 . /ii'htrodc, 1 ^. Thr (Jrrn vs. 
 
 .)'V), S. ('. I\rliin9 VS. 
 
 Uarton, 1 | vg. 
 
 en, 1 Sal ; ffni/m. \> . Sjmra- 
 
 ivay vs. Roftrti 12 Mod. 501. Bae. Jh. tit. Error, (H.) 
 ttib. tit. Superttdem, (G.) (D. 5.;(E.) (D. 4.) Cooper vi. 
 Chitty* \ W. Blk. Rep. 67. 1 Burr. 21, 8. C. Korke rn. 
 flayrcil, 4 7\ R. 411. Sumpsvti vs. K /.Y/tf. 439. 
 
 Ciilb. on Execution . Imp. Sheriff, 154, 1 Jo; and 
 
 the ^<rf. 5 Go. //, cA. r. 
 
 Marlin, against the motion, relied on The Slate vt. 
 Page, tt nl. 1 J/itrr. <v ./oA/j.t. 47 acts of ! 
 
 r/i. 4, and 1799, ffi. 79. v. lo. He referred to and com- 
 mented on the cases, cited in favour of the motion. 
 
 ::4. Tht Comjtlctr .S7. 
 hunt, 2 7'. /.'. i ;. The actn 
 
 i.f 1715, cA. :>.>, . 4; \r: t, '//. 1-2; 1791, r/i. 07, 5. 4. 3 
 Dnnvtr*, S2O, pi. 4. Avff/ vs. Perry, 5 T. P. 669. 
 Mtafher 9t. Vamlyrk, Z Bos. fy Pull. ."Co; and 7/7fon 
 i-i. Clarke, Bnnifx, 
 
 C> Mended that a writ of error, witU 
 
 bond filetl ac.-ordinj^ to met of assemb! sn~vrr of 
 
 good* on * fieri fmi,,^ but hefore sale, is no superseded*; 
 aad two potitivns arc laid down in support of this doc trim :
 
 OF MARYLAND. 9 
 
 First) That an execution is an entire thing, and when 1806. 
 once begun cannot be stopped. V - X >~ LJ ' 
 
 Second, That the property is changed or altered by the Cha v '- n , 
 seizure of goods on a fieri facias. 
 
 On these two positions the argument rests. 
 
 1. As to the first position In a ca. sa. I shall admit it, 
 because there is but one single act to be done, and as soon 
 as that is done, the execution is completed and executed 
 the arrest of the defendant, who is detained in custody to 
 compel payment of the money; and if the super sedeas comes 
 ttfter the arrest, it is too late, the execution being executed. 
 
 As to a fieri facias the position is not supportable in the 
 extent contended for, but is subject to modification. 
 
 A. fieri facias begun by one sheriff must be finished by 
 him or his executors; if out of office, he shall be compel- 
 led by a distringas to sell the goods, and pay over the mo- 
 ney to the plaintiff, and so of his executors. 
 
 After seizure of goods on & fieri facias, the death of the 
 plaintiff will not prevent the sheriff 's going on with the 
 execution; but he may sell the goods, and bring the money 
 into court, which will be paid over to the executor. The 
 death of the defendant after the seizure, will not prevent 
 the sheriff from going on with the execution. These are 
 the only instances in which an execution (a fieri facias) is 
 an entire thing, according to the decisions of the courts. 
 
 There are four essential acts necessary to be done to 
 perfect the execution of a fieri facias, in order to divest 
 the property of personal chattels out of the defendant, and 
 transfer them to another. 1. -Seizure of the goods by the 
 sheriff. 2. The appraisement. 3. Public notice of the sale. 
 4. The sale of the goods by the sheriff after public no- 
 tice. 
 
 In the case of land, another requisite must be complied 
 v.-\(\\ to vest the legal estate in the vendee a deed from 
 the sheriff to him. 
 
 The return of the fieri facias is necessary for the pur- 
 pose of ascertaining the sum made by the sale of the goods, 
 to lay the foundation for a second fieri facias, in case the 
 sum made should be incompetent to the discharge of the 
 debt and costs; or if there was a surplus in the hands of the 
 sheriff, after payment of the debt and costs, to enable the 
 defendant to proceed against the sheriff', in a summary way. 
 to compel payment of the surplus to him. 
 
 VOL. II. 2
 
 i0 c \-!> IN niE COl'RT OK AIM'FALS 
 
 IB \- in lli.- In- ./'in- of the -ood by the sheriff. 
 
 il prnpertv in 
 
 tiii'in. siibjoi t to the execution, ami 
 ( an maintain l r tro\er for them against wrons; 
 
 disposed of by the 
 
 i.t\\. 
 
 Tin- -.virral property is not in tin 1 sheritY, 1 
 a special or <|ua!i!ied pn-j-.ertv in contradistinction to the 
 
 t retain thorn at an appraised 
 value and pay the inon- ].laintilV. 
 
 Tin 1 Amoral proper! v i-. not in tin 1 plain till*. because the 
 : deliver them to him at :in appraised vahu 1 in 
 debt JT q SStion occur-. v.lnMv is 
 the irciuM.il i It is in tin- ddi-mlani, or in nt>ci/- 
 
 inplation or intondment of law, and will vest 
 in future- \\hrro tin- l>i\v dii> 
 
 It is said that by tin 1 sri/.uro oft 1 ! u a fieri 
 
 fit \ admit the jiosition 
 
 1.1 <>n<' restriction, if not niore. I If i- discharged 
 
 'lit' of the gO!)(K -r'r/.ed. How 
 
 i^ that \alut 1 lo !f a>,"i taincd, and \\hat is the true and 
 li-^al criterion of it: Not the appraisement, but the price 
 obtained on a public >:de: and th-- di-rharne of the de- 
 liMidan; i^ only H that amount, which cannot be ascertain- 
 ed but by the sale and the ivttirn of the fieri f>i> '<>-'. To 
 
 ilai'ulate it npp-i-e a fieri facias issues for S500, and 
 
 the shcrill' ri't.ini-. laid as per schedule, and made to the. 
 amount of Sl" (( , what is the di -charge of the defend::;. 
 Ordv f>fit tti/tf^ tho S'lli'. and this ret-,ir:i lavs the fninda- 
 
 !i for a e< -idue of the 
 
 debt. 
 
 An soon as the sale i mil-, tho general property, which 
 wa- i I -i-i or in it'ii i/u,irr. i- iranfi'rred 
 
 to th' >;i of la\v, and In' becomes H 
 
 If on a writ <if error t'h -it >hoidd !je re\er-eil 
 
 afl-- will not be divested out of 
 
 the vendee, and revst in the defendant belo-.v. bc.an-e the 
 n t!ie \rndei- liv operation of lau. accoid 
 din- in the administration 
 
 of justice. Hit if t .. j'id-ment should i. I. afi.-i 
 
 , the general j.rojierlv, if in iitxi/- 
 ancc by the seizure, will revert to tliL-oii-inal dcf.Miduutby
 
 OF MARYtAND. i t 
 
 operation of law, and he is entitled to a writ of restitution 1806. 
 to obtain the possession. So that it is plain the property L ^J~' 
 is not charmed bv the seizure, but by the sale. 
 
 Chaplm? 
 
 It is said that, if goods are taken on a fieri fac ios the 
 defendant is discharged, and the plaintiff cannot issue 
 another execution, or bring an action of debt on the judg- 
 ment. I have already pointed out in vliat manner he is 
 discharged, and shall admit the plaintiff' cannot sue out 
 another execution, or bring an action on the judgment, 
 pending the fieri facias; and the reason is obvious, because 
 it is presumed the sheriff has already taken goods enough 
 to satisfy the debt, and it cannot be known but by the sale 
 whether the goods taken are sufficient or not to discharge 
 the debt; and therefore, during the pendency of the fieri 
 facias, he is precluded from proceeding by another execu- 
 tion, or by action of debt on the judgment. 
 
 It is also said, if the sheriff takes goods on a fieri facias, 
 and they are rescued or lost, the sheriff is responsible, and 
 from thence it is inferred the defendant is discharged. I 
 admit the position, but not the inference generally, because 
 I have already stated my ideas of the nature of the dis- 
 charge. The sheriff is answerable, because in the first in- 
 stance put, he can summon the posse comilatus to aid him 
 against the rescuers, and can bring suit against them. In 
 the second, il they are lost, it is supposed to be owing to 
 his negligence, and therefore he is answerable, and the re- 
 covery against the sheriff would be the measure of the de- 
 fendant's discharge. 
 
 But suppose the sheriff takes a negro on a fieri facias, 
 or goods, 'and the negro dies the next day, or the goods are 
 consumed in the sheriff's house, with his own goods, before 
 he has time to sell them, would the sheriff be liable with- 
 out any fault or negligence imputable to him? If not, this 
 would constitute another limitation on the position that the 
 defendant is discharged by the seizure on a fieri facias. 
 
 2. Having premised thus much, I will now refer to the 
 decisions which I consider as supporting the doctrine, that 
 there is no change of the property of the goods taken on a 
 fieri facias until the sale is made by the sheriff, and that 
 t\\e fieri facias, until the sale is made, is not executed, and 
 consequently that a writ of error is a svpcrsedeas at any 
 time before the sale.
 
 18 IN Til! I OK APPEALS 
 
 1806. If sheriff It ..ml rotm 
 
 hand for want of I>U..T-. the piopem i- in the defendant 
 
 9, 41, (G James I.) A writ of error i^ a 
 if the sheriff n . <-i\c, n be I'.. re -.il.-. bflCMM tin- pi< ; 
 w not altered. Jfoll. J1>. 491, } >l. 5. (17 Jamri].) 
 case was decided fourteen 'Me of tin-. 
 
 third of Jaiinr, requiring bail. second case which 
 
 vras derided. Th* . -^a-on. I 
 tiTt-d: and I add, became tlie rxccuti- 
 before the sale. The sale is the r 
 execution . us the value of the t:<'<" : 
 
 amount for which the defendant i^ discharir-ii. h\rt> ilie 
 property out of the defendant, and vesta it in the vei 
 f> AW,. KV.J.y,/. 4, (15 Car. II.; IW. 44. i'.y the sciy.uru 
 of the good the owner's property i- > I, for the 
 
 seizure is not any execution, but only the bojjinnins; of it. 
 The sheriff after such se'r/.ure ought to return the \vri' 
 cuted in tanto, and cannot by lau dflivei them in jiais to 
 the plaintiff". Yil. 14. If the sheriff retu' honu 
 
 on a fieri facias, and there is a re* iii^t him I 
 
 (turn, that M-I- no pn pvty "t" tl . ';n(.(l> in him, but 
 they remain in the party, and are liabl> il)>r,.iipn< 
 
 i. ion tor lii^ debt. -2 I'lrn.^'^. P. It' !n- -1^-riff on 
 a^fn'/(/(' the good j and pay- the plaintiff with 
 
 his own proper money, yet he cannot t ds to hi 
 
 own u-e. fcr the authority by \\liich l-.e artrl \\a> \nsdl 
 t Jit goods. Noy,l()7. \\herc a \.rii ,!"/' 
 livrred to the sheriff to-day, and anotl i-ow, and 
 
 . li\ nnikinii so// of tlie 
 
 goods, such sale \ii'' ".I, and the \mdee fthall hold 
 
 "-t him wlu> first delivered the \\iii to the 
 
 ' . 420. 
 
 //.,. i! i. ;!<. M. a /A///, ci,. .!. Ti,.- 
 
 sale is the execu;iui. of ih- \\r"t <.l / 
 
 tran-! /'///>- 
 
 III.) 1 
 ilier before the statute of lYj'KU. >,\ rince, i- j.:i 
 
 .Is tiltfrrtl, but continues in the defendant till the. 
 exec'. /' . . . i. L 
 
 '>le but n<> 
 
 allowance of a writ of error is a >' ,i not af- 
 
 terwards. 1 Salk. In the ,ivs. 
 
 ', Barnes's Nolet^ 212, a question, whether
 
 uF MARYLAND. 
 
 bail perfected (lie goods can be restored? Vide Merit (M 1806, 
 vs. Stevens, (16 Geo. II.) <Si/&es ?;s. Dawson, (18 6'eu. 11-; 
 Held, that if a defendant's pei>on be iaken by a ra. sa. 
 and bail in error afterwards, the person shall be di?< ' 
 
 of SL fieri facias, the proceedings so far us 
 the sheriff hath gone must stand. 2 Cramp. J'3, 
 An el e git executed on goods only is not Sijifri fa-las, for a 
 fori facias is (-;< a! >;' l,y sale by the sheriff; but the elegit 
 bv ap|>ra'..-M'n>ent of the goods by a jury and delivery to 
 the party. 2 Bac. Jib. 349, (note b.) According to the 
 statute of frauds and perjuries the writ of fieri facias, first 
 delivered to the sheriff, is entitled to the priority; but if 
 the. goods are seized and sold under the second fieri facias, 
 the goods are protected in the hands of the vendee; but if 
 before sale they are seized under the first fieri facias, the 
 sheriff may and ought to sell them on the first fieri facias, 
 and pay the money to the plaintiff in that case. 1 Term 
 Reports, 729. This decision contradicts the two positions 
 relied on to prove that the writ of error is no supcrnedeas 
 after seizure, 1st. That the execution is an entire thing 
 and cannot be stopped or suspended. 2d. That the pro- 
 perty is changed by the seizure. In this case the goods 
 \vere ftr.it seized on the second fie.ri facias; they were af- 
 terwards seized nnd sold on the first Jieri facias, and the 
 sale adjudged good, aud the money paid over accordingly. 
 Any time before a sale the sheriff has a right to give the 
 preference to that //en* facias v.hich by law is entitled to 
 the priority. If the property of the goods was divested 
 cut of the defendant by the seizure, on the second fieri fa- 
 -heriff could not have laid the first fieri facias on. 
 them, bcc.au.se they were not the property of the defendant; 
 but he did seize them, and sell them on the first fieri faci- 
 as after the seizure on the second fieri facias. Vide the 
 Rule, and Judge KuUefs opinion. In this case, Cro. Eliz. 
 597, and Salk. 3:22, were cited and relied on by the coun- 
 -i.-l who contended for the Rule. 
 
 If thijj case is considered on the act of 1713, ch. 4, in- 
 dependent of the English authorities, I think it is plain 
 the writ of error is a supcrscdeas at any time before sale; 
 and that such exposition is agreeable to the intention qf 
 the legislature and in furtherance of justice. Jn expound- 
 ing the act of 1713 relating to appeals and writs of error, 
 we must consider the evils which existed before, and the 
 remedy provided for them, and give such an exposition to
 
 1-1 < ISBSIN niK COURT OF APPEALS 
 
 18Cf. the art as will remove the c^ils ;>.nd advance the re- 
 dv. 
 \ urit of error, before tl.e :u t oi 
 
 !! his debt by the de- 
 cfore 
 
 the judgment 'I'n reined \ thi- e\d. nond, 
 
 in double the MUD recovt-rer ired, 
 
 before a urit ii error ua*a 
 by t ! 'M-f a Mifticient security for the debt and da- 
 
 ,.ent !-liou!d bi 1 aftiriiH-d. 
 
 In this planner the e>il on the part of the j-laintiff was 
 fully rein* 
 
 on lite part c.f tin- defemlant ua.^, that his pcr- 
 ri!'j.!it l:c di-iaiurd in pri^nii, <n hi-. |n>put\ sold, IR-- 
 11 (i. old ! lied uhctlii-r the jud^inent below 
 
 was erroneous or not. And further, in case the jtjd. 
 was erronnnH, and re\ei'M-d, he might IOM- hi- piop t -rf% !>v 
 -.ile of the >hcrifl', arid payment of the money to the 
 plaintiff, if lie should IM- ( OHM- ii,ol\fiit before the juilg- 
 nifii- rsed, or before the money could be re- 
 
 If lnT.d i- -jfnrn in the manner j-.re-j rilx -d lv the ait i-f 
 :ibly. fin- \\iii ! the 
 
 ?i;iii if it hail not ]>rc\i i \\ill dr! 
 
 I by the slu-iitl' in the execn- 
 "f it. if it was not eM-nited when the bond 
 The. urit of error bond Lein^ ii; l!y of double 
 
 . \\ith tuo M-curities appro\ed b\ the 
 chancellor, was dremed by the le^i>latiire ample >ecurity 
 
 ntitV, 
 
 in case the jndgment shovld be affinned. Thi- i^ all the 
 itiflT was entitled to by lau : this is all he could ii 
 :'(|uirr. and for (his he has ample security, int!' 
 dent of t 1 .i.t' |ii< | 
 
 It I |.'-ii-!i;dile nafirr. ^ubji-ct to na- 
 
 tural <! ra\. the lly r \\ea\cl, or la-ualtirs ol any Kind, 
 the plain'. ' IM? injured by its remaining in the lus- 
 
 tc.d\ of tli'- law to be operated on according to the deci- 
 sion of the a|>; nit; by uhich it is to be a-rertain- 
 c<l whHher the ji:d^ment Iwlow i^ erroneous, and uh 
 the defrndarit is ind.-bted to the plain; ift* or not. 
 
 But suppose tin- rourt should decide the writ of ei ror it 
 no $t'pereilcn after seizure ef tlie goods () i hauls, and the
 
 OF MARYLAND. if 
 
 Sheriff proceeds to make sale, and does sell, and the me- 1806. 
 ney is paid over by the sheriff to the plaintiff, and after all 
 this is done the judgment is reversed, and the plaintiff be- 
 comes insolvent, or he pays the money over to one of his 
 creditors, and becomes insolvent before a recovery over 
 can be had, what is the situation of the defendant? He is 
 deprived of his goods and his land, although he owed 
 nothing, and he is without remedy. But suppose the 
 plaintiff does not become insolvent, the defendant loses 
 his land, and must bring suit for the money, which in 
 most cases is not more than half the value of the land, be- 
 cause sold at a sheriff's sale for cash. 
 
 It was the intention of the legislature to prevent the de- 
 fendant's being injured by a sale of his property while the 
 writ of error was depending, and he was allowed to inter- 
 pose his bond, (which was deemed an ample security,) to 
 prevent the sale of his property. 
 
 No injury can be done the plaintiff by deciding that the 
 writ of error is a supersedeas at any time before sale, be- 
 cause lie bas ample security for his debt and costs, and he 
 will be fully compensated for the detention of the debt by 
 the damages awarded by the court of appeals. But by a 
 contrary decision, a defendant may be deprived of his 
 goods or lands, or both, and be without remedy, if the 
 judgment should be reversed. The former corresponds 
 with a sound and liberal exposition of the act, is agreeable 
 to the -intent ion of the legislature, and will conduce to the 
 advancement of justice, and therefore ought to be adopted. 
 
 If it should be determined that the writ of error is no 
 superseded-? after seizure and before sale, the plaintiff will 
 lose the benefit of the writ of error bond, and cannot re- 
 port to it in case there should not be enough levied to sa- 
 tisfy the debt, damages and costs, 
 
 BUCHAXAN, J. (a.) The case is this A judgment wa-4 
 rendered against the defendant, in favour of the plaintiffs, 
 in the late general court, upon which judgment a ,/im/rtct'a* 
 issued, returnable to this court, and the sheriff, to whom it 
 was directed, laid the same on the real and personal pro- 
 perty of the defendant on the 16th of April 1806, and on 
 the 21st of April 1806, an appeal bond was filed, and writ 
 of error issued, a certificate of which being shewn to the 
 sheriff, he made return on the fieri facias to this court, 
 
 (a ) 'A'l-ghman J concurred with a majority of the court, but lie 
 ".as net present when the judges tlelivered their opinions.
 
 Iti 
 
 " ami (ho 
 
 application lo the umrt Q 
 jMfc 
 
 I vt are not con; vtent to ;i 
 
 ward ; because, 1, 'hi- ^"t 
 
 - T77m> I'M, 
 
 . has beer, import of :!,,-> iMition: but 
 
 -.If; for it is there 
 ::ill lx- iv 
 
 i 01 a<! judged t. Iv.- law: and 
 '. of (he (.' unie, 
 
 it" it Joes not ilHVat ihr poMiion, it at lr:.-t weakens the 
 
 That !h- 
 
 cf the property, He-no to be a position 
 : iiittnl !)V our l>ni!! 
 
 : ran it now lit- a <|'i--- -i in. for the cui i 
 thorities, both before and .since Rollc, are to ('IP ron 
 
 . after the 
 
 
 is irregular, a?; ' ityiu 
 
 shall be ivturm-d: !)'it in nn 
 lie execution i-> ii re^ufai', ^!,.!1 Die tlcH':, 
 ruMon of jii-ijiprty. And in ill. 
 
 he sci/.'ire therefore u:x.> regular an;l lawful, and not 
 within the exception. 
 
 But it has been -a'rl. that alMnrr^h the defendant" is not 
 1 to a return of the pnperly, yet the goods shail re" 
 main in the (onditinji in ,\!,'v.!i tlv 
 
 n'in te i;. 
 
 ron ami in support . 
 
 Clarkr, \\. it i- 
 
 said, that 'ie: . and 
 bait in error al* 
 
 ': ')'it I do n-t 'tuider 
 
 stand that cane to <n. , ,\ n in thr 
 
 - until tin; ulti'ii-tlc dci r-iination of the 
 
 wit i I ( ake the 1; -itinn 
 
 and n -i.i'i Ix'in 
 
 an "! with- 
 
 out the control la supers- 
 
 *jt reach it; and indeed the rcas.-jn of t 1 rCMil
 
 OF MARYLAND. 17 
 
 to any other construction. Writs of errdr are loo fre- 1806. 
 ijuently resorted to for purposes of delay only; and if a ^ J ~T~ T - /I 
 writ of error issued after noi ertv taken in execution, was 
 
 ' Chaplin* 
 
 a supcrsedtas, the inconvenience resulting to creditors 
 would be very great, for no defendant would ever sue out 
 his writ of error, until the sheriff' had proceeded on the 
 execution; and though the plaintiff should delay his exe- 
 cution to the latest practicable period, the defendant would 
 be as backward with his writ of error; a practice which 
 would prove very vexatious to creditors, and the contrary 
 position can be attended with no inconvenience or loss to 
 defendants; for if they have merits, and in truth wish to 
 take their cases to a superior tribunal, for good cause, it is 
 at all times in their power to do so, before any proceedings 
 are had under the judgments below. But it is said, that 
 if a writ of srror, issued after property taken Under a fieri 
 facias, is no sitpersedcas as to the sale^ it would work great 
 hardships to defendants in cases in which the judgments be- 
 low should be reversed; but that cannot be deemed a hardship 
 which a defendant draws upon himself by his own negligence; 
 and if it is an inconvenience, it is one of his own seeking; 
 it is an inconvenience to which, in a controverted case, he 
 need never be subjected, and which, in cases of removal 
 for delay only, he deserves to suffer, and none but himself 
 should suffer by his laches, which might not be the case if the 
 goods were to be arrested in the sheriff's hands to abide the 
 suit in error; for, though the defendant files his bond with 
 sureties, on suing the writ of error, yet it cannot be con- 
 tended, that the plaintiff's security would not be lessened 
 by a delay of the s.ale, until the suit in error was determin- 
 ed* The goods themselves are the best security a plaintiff 
 can have, and if they were to be arrested in the hands of 
 the sheriff until the affirmance of the judgment, not oinv 
 they might perish, but the appellant, and his securities 
 might become insolvent, and the appellee be thus defeated 
 of his just claim, so that the security of the plaintiff would 
 certainly be lessened, and that by the intentional delay of 
 the defendant. And in the case of personal property, it 
 would be better for the defendant himself that it should be 
 sold, than to lay in the hands of the sheriff, where there 
 would be the greatest probability that part, if not all, would 
 perish before an ultimate determination. 
 
 VOL.
 
 18 * ^SE8 IN T1IK CnrRT Ol> APPEALS 
 
 The !ui i _ defendant- \\a-muchand ably 
 
 dwell a9 (ho (MH'-tion related to zooda 
 
 i 'Hitler;! '..': but it i- admitted, and so arc 
 
 the authorities, that if a writ of error coin-- after the de- 
 nt i-, taken under a ra. su. it i- no Mijjcrsr.deas, and 
 the defendant mu-t lie in gaol until the suit in error is de- 
 termined: and if the puggestion of hardship, is an argu- 
 iiu-nt to >hew that a writ of error is a */n rxnluis as to 
 -ale of goods taken bef.ire, the argument applies much 
 more forcibly to the situation of the defendant him-dl, 
 ^ho i> i:i uaul under the in. aa. for certainly, it is harder 
 to be coniined in a pi i-<>n. than to have goods sold under 
 execution; but tliis argument of hardship has never prevail 
 ed in the case of a sei/.ure of the person under a ra. 
 
 irt b\ all the lo:ik>, and >urely then it ou^ht not to 
 ,il where it applies \\itli le>s frte. NN'hen a defen- 
 dant will not sue out his writ of error, before his goods 
 
 :/.ed under a_/?. fit. it a (lords a strong presumption 
 that his object is delay only, to which as little enc<> 
 ment should be u'nen U ron-i-tently with ti )l prin- 
 
 liplcs of law can b-: ami si much have .courts 1 
 against such practices, that in the case Mn^l< nnmt t-.v. 
 (irunt^j TII-III /.'(/.-. 714, the court refused to .-lay pro- 
 ceedings, the plaintiff' in error having declared that he 
 brought the writ of error for delay. 
 
 The property in ^ooils taken by a sheriff' under zfi. fu. 
 become^ alteied by the sei/.ure, by authority of law. for all 
 the p-npoM^ intruded by the writ; and therefore it 
 a writ of error which romes afterward?, i- not a ntpertt' 
 : f.,r the writ ufji.fu. may, by t: .be said to 
 
 :;;vl. ime th:- -IterilV, without making any return 
 thereof, may wll the J.MI;-!-, ai.d >.itisfv the judgment. H 
 
 1 in 1 ]hnimli)n\ :i, "ihat if the sheriff' takes goods 
 undery?. fit. and return* that they are in his hands for the 
 \\ant of bu ;-roj)ei!y rrmui/ia in th;- defendant:" 
 
 :ch is tlie < urrent of authorities to the contrary, that 
 I ca:;' j.n.Miioii, if by it i- i::.-;;i:t that the 
 
 properly is not altered: and thf writer may ha\e intended 
 to a't Setv, een the property being altrrcJ. 
 
 '/ (.ut of the defendant. There is a case also in 
 iVned to in the argument, in 
 vhich i i- --lid. tlut neither Ivf-.u- hor since the statute, 
 
 iiich tlic property is only bound by the delivery ofth-
 
 OF MARYLAND. 19 
 
 writ to the sheriff,) is the property of the goods altered, but 1806. 
 continues in the defendant until execution executed. But v v - ' 
 
 Ueatiy 
 
 I do not consider that case as an authority against me, on >. 
 
 Ctapline 
 
 the contrary, I view it as an authority in support ot the 
 position I have taken. The question in that case did not 
 arise on the effect of the seizure by t/ie sheriff, but. of deli- 
 very of the writ to the sheriff". Before the statute the goods 
 were held to be bound from the teste of the writ, but by the 
 statute from the delivery of the writ to the sheriff; and Lord 
 Hanlwicke meant to say no more, than, that although the 
 goods were bound, yet the property was not thereby altered 
 until seizure by the sheriff; and probably by the expression 
 "execution executed," he intended no more than a taking 
 under afi.fa. or he may, (under the idea of an execution 
 being an entire thing,) have meant that by the taking, an 
 execution becomes executed; and the same language is 
 used in the case Meager vs. Vandych^ in 2 Bosanquet and 
 fuller, 370, where the taking of goods byy?. fa. is called 
 the execution of the writ. 
 
 The property, by seizure, is altered for all the purposes 
 of the execution, and thus is placed out cf the reach of a. 
 wpcrsedeas on writ of error. If the sheriff after seizure 
 dies, his executor may sell; after he ceases to be sheriff he 
 may sell; if the plaintiff or defendant, or both, should die 
 after seizure, he may sell, and he may sustain an action for 
 the eoods against a stranger, or even against the defendant 
 himseif, if he takes or destroys them. In short, the au- 
 thorities are so numerous and unequivocal in support of 
 this position, that all reasoning on the subject seems to be 
 shin up. Lord Chief Justice IVilles, in deciding the case, 
 Merriton vs. Stevens, page 281 of his reports, says, (in 
 speaking of the case in 2 Rollers Ab. 491,) very laconically, 
 (which shews that the principle was then well settled,) 
 "the reason not beirig a true one, I give no credit to this 
 case."' And the reason assigned by llolle. is, that the pro- 
 perty is not altered by the seizure. And Gilbert, in his 
 treatise on executions, not by quotations from other au- 
 thors, and without reference to any, but as a text, lays it 
 down as established law, as an undeniable principle, that 
 the property in the gaods is altered by seizure, anil the 
 sheriff may sell notwithstanding svpersedeas comes after- 
 wards, and if he does not the court will award a vendilioni 
 The same position is also laid down in
 
 20 \>r> IN '1'Hfc CorilT OF APPEALS 
 
 186. Sheriff, both book* of very hi^h authority; aad it tan- 
 be ; . esumed that the iiiir--i->n \\.i- \\n< I'-illv M-trled when 
 
 t true position, that a defend - 
 
 atit is diicharged b\ re of goods und.-r fi.fu- - 
 
 as the good* taken v. ill go; and >nlar tin- jiul-m-nt. a- l)'>- 
 turrn tin; plaintiH' and i: i.- in Hlri ' ati-!i'd, and 
 
 the debt d'lMliai-ir* d, and beiu iiin^ 
 
 for a sitperaedeas to operate upon, or in other wonU not'iin^ 
 to be superseded; and hence it is, that a writ nl 
 in no way aft'ect goods already ta!;-!i; for it would be idle 
 to say, that a writ of error, (which is issued to n-\ iew the 
 proceedings in the court below, and to prevent a judgment 
 being satisfied before such r-\5ew,) shall operate as it .s ' 
 pcrscdcatio that end, after the judgment, so far as con 
 the defendant, is actually satisfied; for the office of a <- 
 persedeas is not to undo what H done, but to prevent fur- 
 ther proceedings; therefore, if goods only to part of the 
 amount of the judgment be taken before the writ of error 
 issues, it does not undo what is done, but shall be a super- 
 $edcas as to the Uking of any other goods. On these 
 ^rounds if there were no adjudications on the subject, and 
 the question was now to be decided, I should !>e of opinion 
 that the writ of error in 'his case H mr //</.*. lint 
 
 t!i" authorities, independent of any reasoninc;, arc not to 
 be combated. An execution is said in the books to be 
 an rntirc tSiin-z, and when once begun cannot be stopped or 
 superseded. But the different writer* ha\> r! ear- 
 
 ly explained their meaning ot vetv of an e\ 
 
 (.n, tiiou^h they all, except Itnlle, ajree in this, that \\lien 
 uu-e beirun it cannot be superseded. The writ of fi. fa. 
 < omr'.iands the aheriff that of the unoiU. vVc. <f the d-!'rn- 
 dant, he cause to be made the debt, &c. The maki 
 the debt is the thing to be done, and the <>f the 
 
 goods, the sale, &c. are but the manner, and, as br 
 the plnintiir and defendant, the debt ia in eftect made by 
 the seizure, so far as the goods will goj or the execution 
 may be said to be an entire thing in this, that after seizure, 
 the appraisement, notice and sale, are matters of course, 
 and incident to the oflice of sheril!': and when done, have 
 relation back to the original taking, and thus I. 
 law, arising out of the doc trine of relation--, it ' 
 rntin' tl.in^ as is the case in v\rial kinds of convey- 
 ances: for instance, by fine or common recovery; and also
 
 OF MARYLAND. St 
 
 >A the common case of a, grant, which issues aa a matter of 18lKi. 
 course, (all requisites bavins; been previously complied 
 with,) and relates back to the certificate, and thus makes 
 it one entire conveyance. But the entirety of an executi- 
 on has been denied, and in contravention of the principle, 
 the case of Hu'chinson vs. Johnson, reported in 1 Term 
 Jf,p. 729, has been cited and relied on, tho -h I cannot 
 conceive how the decision in that case in any way affects 
 the question. The decision is, that where two execution; 
 come to the hands of a sheriff, though he seizes the goods 
 by virtue of that which was last delivered, yet he may and 
 ought to apply them to the discharge of that which was 
 first received, because the goods were b>und by the delive- 
 ry of the first; but the court also said, that if the sheriff in 
 such case actually sells under the second execution, the- 
 sale shall stand good, ami the person claim ig under the 
 first execution shall have his remedy against the sheriff; 
 and this last position, under the statute of frauds, for the 
 benefit and quiet of innocent and bonajide purchasers. 
 But this case does not at all deny the entirety of the exe- 
 cution, but is grounded on the principle that the goods be- 
 ing bound by the delivery of the first writ, the seizure un- 
 der the second was altogether irregular. And in Carthew^s 
 Jlcp. 420, the case of Smalcomb vs. Buckingham, the same 
 principle in favour of a purchaser is decided. The autho- 
 rities in support of the principle, that a writ of error after 
 goods taken under a.fi. fa. is no si'persedeas, but that the 
 sheriff shall go on to sell, are very numerous, and some of 
 those which are most in point, and by which the principle 
 seems to be so firmly established as not now to be shaken 
 by any artificial reasoning, I will take a short view of, as 
 this is a case depending upon authorities. 
 
 The first of them in order of time is the case of Char- 
 ter vs. Peeler, in Cro. Eliz. 597, in which case the sheriff 
 took the defendant's goods by bji.fa. but before sale a 
 writ of error and supcrsedeas carne, whereupon the sheriff 
 made return that he had seized the goods, but that they 
 were in his hands pro defectu emptorum, and also that a su- 
 pcrscdeas was awarded; and on a motion for a return of 
 property, the court denied a restitution, and awarded a 
 venditioni exponus, because the execution was begun by 
 the seizure; and a case in Dyer, 98, to the same effect. In 
 Moor, 542, it is laid down, tlut if the sheriff has the goods
 
 . \.-K> IN 1 .1,. v HiiiToK AIM'F. U,>> 
 
 1806. of the defendant in his hands under a //./</. :n:d a 
 v^ ' </fflj come*. lie -hall not deliver them, but shall sell them, 
 because the be^inninn of tin- M \\.-i- before the *n- 
 
 per*ctlnrfs ranii 1 . and the exerution heiirj; entire shall not 
 be divided. In the case Tn>-l * . /f 'iii/num, in Ydr. ri, 
 it is held, that if a writ of error and *I'/H , me to 
 
 the rherift* after goods taken, he shall j -"'I what 
 
 lie. has taken, but shall lew no more. And in the ca 
 liuktf vs. Jiulntroile, 1 1'iiitri-i, v^.i. it is dei Med, that if 
 the sherill' takes goods by /i- f<t- before writ nf error, the, 
 execution is not to be undone by writ of error afterwards, 
 :he time tJie writ of error comes the ;oods niav 
 
 D Iianti for want of buyers. Hut it i> argued, that 
 
 - v. ere all decided before the statute requiring 
 
 bail in error, and that after the statute the principle before 
 
 iis'-.ed by them ceased to be law; and in support of 
 
 this position the case in 2 RoL Ab. 491, which was after 
 
 the statute, is relied on; and this is the only case I have 
 
 seen either before or since the statute to the contrary. And 
 
 il is worthy of remark, that security or bail in error beini; 
 
 required by the statute, is not given as the reason of ihc 
 
 dcctrine laid dmvn in Jtolle, nor docs it appear that tin; 
 
 statute in that case was considered as working ,111% new 
 
 principle, but the reason assigned is, because the pro) ei tv 
 
 ;ili'.<-l l>y the seizure. This, Lord Chie^ Jusiiec 
 
 IV Hits says, is not a true reason, and in that he is support- 
 
 ed bv the later and very respectable authorities. In 'he 
 
 . Rocke va.JJayrrll, re]H>rted in 4 Term Reports, 411. 
 Lord A'un/on, .speaking of the writ of /?. fa. flui- e: j KM- 
 e> himself "As the property of the debtor's ^ood- inbound 
 In the deiiverv of the writ to the j-herifl', there then re- 
 
 m no property in the debtor, on which the prer< >_ 
 I the Crown can attach;"' a much stronger case, if it ia 
 law, than that of actual sei/.ure. 
 
 In the case, Clarke vs. Wit! rd in A/,-/ 
 
 .,!id ! /." . "./. Kir-?. tln>e point- wen- M>l 
 
 arlji.d^id bv the whole conrt, but particularly by ////. Chiif 
 Justice, and (iituil. Justice That a sei/i,, xls in 
 
 execution is a di.-< liaise of the judgment; that the Mih-tan- 
 tial part of the execution is the seizure, and that the ie-t 
 is all form; that an execution is an entire thing, and not to. 
 be MiptM -rded after it is begun, and that the sherill 
 seizure, (as a matter incident and of course,) is bound to
 
 OF MARYLAND. SB 
 
 sell; that after seizure the judgment, (as to the defendant,) 1806. 
 is discharged and satisfied; that by the seizure the sheriff ^v^ 1 
 gains a special property, and the property in the goods is Chfl v> Une 
 divested out of the defendant; that the plaintiff" has no far- 
 ther remedy against the defendant, but must go against the 
 sheriiF; for the defendant having lost his goods, may (in an 
 action brought upon the judgment,) plead levied byji.fa. 
 in bar, and it will be good. The same principle, as to the 
 alteration of the property by seizure, is recognised and as.- 
 serted in various other books of high authority, and parti- 
 cularly Gilbert on Executions, 23, and Impey^s Sheriff. 
 Let it be observed, that the only reason assigned in Rolle, 
 win a writ of error is a supersedeas after seizure, is ''that 
 the property is not altered by the seizure," which is an im- 
 plied admission, that if the property was altered, the writ 
 of error would not be a supersedeas. And Gilbert, and 
 the other writers say, that a writ of error after seizure is 
 no supersedeas, because by the seizure the property is al- 
 tered; hence it appears, that the question, whether the 
 writ of error is a supersedeus or not, depends on the ques- 
 tion whether the property is altered or not by seizure. And 
 the case in Rolle appears in so questionable a shape, and is 
 arrayed in so doubtful a reason, that it must sink in the cur- 
 rent of authorities by which it is overwhelmed. But inde- 
 pendent of this reasoning, there are many adjudged cases, 
 (since the statute requiring bail in error, and since Rolle,} 
 which fix the principle, that a writ of error after seizure is 
 not a supersedeas; and this proves that in England the sta- 
 tute was not considered as affecting the case. 
 
 In the case, rfgers and Lenthal, in 3 Keb. 308, 9, it is 
 said, "that onfufa. and seizure, if no supersedeas comes 
 before sale, it is good; and if error be mesne between seiz- 
 ure and sale, it doth not avoid it." The plain and obvi- 
 ous understanding of which is, that notwithstanding a 
 supersedcas comes after seizure, yet the sheriff', havino- 
 taken goods before, if he proceeds to sell, the sale shall be 
 good; and as error cannot be mesne between seizure and 
 sale, unless there be a sale after the writ of error, the latter 
 branch of the opinion must mean, that the error does not 
 avoid the sale; by which it is evident, that the writ of error 
 coming after the seizure is no supersedeas, for if it was-, 
 the sale would be void. Lord Mansfield, in delivering the 
 opinion of the court in the case, Qoopervs. Chiity. reported
 
 t-l CASKS IN . RTnF APPEALS 
 
 1R06. in 1 Jl'i.t. Illtickstoni . . and 1 J!".->;>if. 34, I.P , 
 
 dwn as a lixe<l principle. tli;tt a v. rit of error canno> 
 supersede an r\i<i;iiim, or a fi. fa. actually begun; and. 
 a- IK- says, for the plaiiii au^e llic xeruti.ii- 
 
 ire, and if once lawfully lu'-nn i:m-; be completed; 
 and because, as bet we on the plaintiff and defendan., tin; 
 debt IN discharged by a seizure wider ft. fa. In the case 
 The Queen vs. A*A, reported in 2 Aon/ Jfm/ni. 989, 
 the (|iie-tiun arose on the effect of a czftiorari < 
 romiction; which was brought tifier the con,(able had di->- 
 traineti the go<Ml> of A'</.v/ under a warrant from the jus- 
 tices to levy the penaltj for deer stealing; and Hull, Ci.ief 
 lin- )],,. rax-, lihctitd it to the case df good* 
 taken under a JL fa. bcii-ic \\.it of error brought, ami 
 there laid it do\ui. (not as a ca>e of fu.>t impreion and 
 then to be decided, but as the krtown and acknowledged 
 !' the land.) lhat when gocnis arc taken under a f:. fa. 
 and tiicn a \\r\\ of error comes, it is no 91 w, but 
 
 .'rilV -^li;!!! proceed to sell, and if he does not, a 
 tioni r.'j.'iut" m.iy !) awarded. And so fully is the 
 established in England, that in the case, Mrrrifon vs. 
 
 -(#, in Jtilffx Jtrjt. 271, Serjeant tl ijn/i, who argued 
 in -tipport of the rule to set a^'ule the //'. fa. admitted, that 
 if the slicritf had taken the ;;oods before sealing of the writ 
 of error, he miirlit have |.ron-eded to -.f\\ them afterwards. 
 Thus, then, it appears by all the authorities, except hullt. 
 (both before ;:nd since the statute rcrpiirinu bail in error,) 
 that a writ of error \\hich i-ues after _ -t-i/.ed un- 
 
 der a Ji-fti' i- not a *'; And indeed the ( 
 
 It'i'lti may be reconciled with the other decisions? for in the 
 
 Sampson vs. liron . \ .V.), 444, 
 
 -.iid, that the mrpcrmJir* i--;u'd after the writ of error 
 {NO which it WES grounded, illlnmji the t,t>}>rr- 
 
 N came after the HOIK!^ \\i-re taken, yet the writ of 
 error niL'ht. (iu .-my tiling appeal in;; in the caM-,) have 
 been i iii-d innl alluv. .-d Ix-foiv, and the sirprrsrilrii* li.ixiii- 
 ii-l.itiin back, the takin- of the i;oo(U was iiregular. The 
 .it, and b\ no means full. As to the rti- 
 of an execution, if it should be admitted to be a 
 doc'.iine established on artificial i-ea-oniiiu:, ^et it i> an Cfi- 
 I i-ir.tiple. ;::.-.!. (like many others supported only 
 by the same kind of reasoning,) it cannot now be >li:tken, 
 without overthrowing every authority upon the subject, for
 
 OF MARYLAND. 
 
 more than a century past. We have seen that by the com- 180fi. 
 
 Be any 
 
 VH 
 
 Chaplinc 
 
 mon law, a writ of error, which (if taken out in time,; \vas 
 
 . . . Bcatty 
 
 a supersedt'its without security, \\-asnotsmuperftedeas if sued 
 
 out after goods taken under a ft. fa. We find also, that in 
 Bngfand the statute which requires bail in error, has never 
 been considered as altering the principle, or at all affecting 
 the case, nor indeed could any such construction be given to 
 the statute, which is in these words: "That no execution 
 shall be stayed or delayed, upon or by any writ of error," 
 &c. "unless," &c. Thus the statute does not give a writ of 
 error any more efficacy than it had at common law, but on 
 the contrary takes from it all the efficacy it had at common 
 Jaw as a mpersed&w, unless it is accompanied by bailj and 
 in fact makes it, with bail, what it was before without bail, 
 and no more; and this being the uniform construction of 
 the statute, not denied even by Rolle himself; for (as I 
 have before observed, the case put by him is not attempted 
 to be supported by authority of the statute, but by another 
 reason which is not law,) the same construction must be 
 given to the act of assembly 1713 / ch. 4, regulating writs 
 of error, &c. which is in the same words contained in the 
 statute, and probably so far copied from the statute; and 
 indeed the same construction has always been given to the 
 act of assembly, and acquiesced in until lately. The case 
 then is shut up. In England no question exists, nor would 
 an argument be heard on the subject ; and in this state the 
 words of the act of assembly, and the act of parliament, 
 being the same, they must receive the same construction, 
 and our courts of law must be bound by the authorities, 
 whatever artificial reasonings might be offeied to the con- 
 trary. The old supersedeas law, and the practice which is 
 said to have been pursued under that act, have been urged 
 by counsel in argument, to shew the true construction of 
 the act of 1713, ch. 4, but neither that act, nor thejiractice 
 xinder it, (whatever that practice may have been,) has any 
 bearing on the case; for when it is said that an execution is 
 an entire thing, and cannot be superseded, it is intended 
 by a si'pcrsedeas on writ of error, and not a supersedeas 
 created by statute, or an audita quserda, &c. 
 
 The cases which turn upon the point of time, from which 
 
 a writ of error was held to operate as a super ar leas, relate 
 
 to this case in no other manner than as they shu\v, that at 
 
 common law a writ of error, which Issued after goods Arerft 
 
 voi ii, 1
 
 > CASKS IN THK ( orft'f OF AIVI-. \i .- 
 
 1806. sei/.ed under &fi, / > /*v/?; and in tin- 
 
 case the writ (if error, h.ivin^ i>>ied after the goods \\ u- 
 talvn b% MM- -heritV, it IIHI>I ivttixe the same construction 
 whiJi ;;t i iiniiiHiti l.tu it would l,a\r had, the act of assem- 
 bly uixin^ to writ> of error as surh, no reater efficacy' 
 had b-fore; nor d.,, . , that the 
 
 . wa* laiil nu lands as \\oll a- -onil-, 
 any ilifu-renrr: for by the act of Parliament, umlci 
 '. lauds are. ht-ld to be liable \ c\f ( utiuii for debt ii. 
 (hi.-, state, real and pti\vonal property are plan-d pn-ci-elv 
 on the same footing. 
 
 I'l i-ii Hi-- \\!ii;!e, I on-'nli-r Ihi.^ not as a now ca^e nou 
 to be determined, but om \\!iich has been settled ever since 
 the ivin of Q 'i ! n'tli and not shaken by ;u 
 
 pt that of Tin "f ll'nf 
 
 f*agt, el aL which was determined contra in the 
 in >hire u'''i''i^l I'ourt. by my brother the Chief 
 .lutL 'pinion-. I \ei v mm li ic-jiri t, b.it to which I 
 
 >i yield in t'nU ca-.-. beini: lied up by what mn>t nm\ 
 .ti)li>!i*-d la\\ : and am therefore of 
 opinion that a niulili .'it to be auaulej. 
 
 NICHOLSON, J. said, he had uniformly been of opinion, 
 lhat it was improper for th> court in the last resort, to a^ 
 m f"i ( !>e final judgment. In the inferior 
 it \\a- rrop'-r that they should <tive t!ie reasons of 
 their deci.-ion, l>ccau.se it afforded counsel an opportunity, 
 when they came before the cov.rf of appeals, to shew the 
 I.J'.acv of the rcas-niin-j; of the court below, if it was falla- 
 Hr had therefoie. <.ni!iis account, aluay* ^i^el) the 
 reasons of the court in which he presided. Hut here there 
 that kind, huau-e the decision of the 
 ronrf of ;i CADli t'ne hm of the land, whether that 
 
 or t'n .r.\-j wa- or \\;i> not correct; and where the 
 
 liad, it was too >ften blended with the de 
 in I. ;;nd confide: ! i;ke\\i4-as the law. 
 n- in the court of the 
 \ exen-.jdilied in this case. 
 'akt-n in the opinion* -riven by two 
 of the iinl^e>, whiili in u did not belong to the 
 
 di<J or t'.id not <ln-i the i.iopei : v ... i of (he defendant, and 
 or the defendant d. I'pon
 
 OF MARYLAND. 87 
 
 These two points, he might agree \vith the presiding judge, 1 806. 
 (Chase.) although he diftered with him in the result: and * N ' 
 
 Beatty 
 
 upon the same points he might ditt'er with the other judge, cha T!l , irift 
 
 (Buchanan J although he agreed with him in the result. 
 
 lie wished it, therefore, to be distinctly understood, that 
 
 lie gave no opinion upon either of 'hese points, except that 
 
 they had no bearing whatever on the question submitted to 
 
 the court. 
 
 He had been induced to decide, that a writ of error after 
 seizure upon a fieri facias was no sitpersedeas, by a long 
 train of decisions for more than two hundred and fifty 
 years, (from the 1st year of Queen Mary.) A train of de- 
 cisions prevailing for such a length of time, with the soli- 
 tary exception of the case in fiolle, he considered equal to 
 a statutory provision. The whole reasoning on the point 
 really before the court, was given in three lines by Lord 
 Mansfield, in the case in 1 Wm. Blue-stone 's Reports, 67, 
 vi'/.. Jin execution being entire in its nature, and once be- 
 gun, cannot be superseded by a icrit of error, bid must be 
 completed, because the property is of a perishable nature, 
 and is not to remain in the sjierijf" > s hands to await the 
 final determination of the suit, 
 
 GANTT, J. This is a motion for a vendiiioni exponas^ 
 and the case is shortly this: Aft. fa. was regularly issued 
 upon a judgment obtained in t lie late general court j this 
 fi. fa. was regularly executed by a seizure of real and per- 
 sonal property. After seizure, the defendant filed a writ 
 of error bond, and a writ of error accordingly issued, mesne 
 the seizure and sale of the property tal^en. The sherift* 
 returns that the sale of the properly is stayed by writ of 
 error, and the motion for a vaulilioni expomts is founded; 
 upon this return. 
 
 I was absent on the first day of the argument of this mo- 
 tion; but have been furnished with a list of the authorities 
 cited by ihe counsel. I have reflected upon the case, both 
 before and since the argument, and have referred to the au- 
 thorities cited and as I concur with the majority of the 
 court, 1 will, in as brief a manner as the case admits of, 
 give my opinion, ami the principal reasons which govern 
 my decision. 
 
 I shall not pursue the various cases which have been 
 cited in order,, or .particularly comment upon them. I con
 
 28 -.:> IN riiKcorii r(,K UMM 
 
 aider it a V...MP <.f time, av : rouble: almost the 
 
 whole of tin-in are foi-.ndcd upon one of t!i ns 
 
 v hether a writ of error ; 
 
 allowance of the \\ i i; or ////(/ of it> ev>< ntion: \\!. 
 flu' e\ei iition ha- been regularly i-vied, 01 . r ae- 
 
 on .iin;: to tin- rule* of prat !.. 
 
 in f <u lor |i\ittii:'j in Iniil D:: ror under 
 
 th(> >lati;' 
 
 Dcci>i(ni^, fnundi'il UJMIH t-itlior of t'i . <] ( > 
 
 nit apjilv tu tin- j.'irM-nt ( ;i-c. 'i l:r -nlc (pif-Mcii i-, \vhc 
 tlior tlii^ \\rit of IIMU upi-ntes as a superseded* to stay a 
 sale of tin- property tak'Mi under tin 1 ./'/ regular! v 'ISMMM! 
 and executed liv scty.ure, before the \viit of m 
 In other \\onN, vhetlier the plai: milled i 
 
 to a writ of rt/nii'.innl i.ijmnc^ to compel the sheriff' to sell 
 that property? 
 
 The statute of James, and the act < >lv quo ad 
 
 iiio subject of inquiry, are in my opinion Miilar. 
 
 1 will dispose of them fir>t, and then advert to those prin- 
 ciples of ti-.c ((million law wliich jBvemthispMStkMi The 
 statute of James was meant to correct the abuse of wrii> 
 of error issued for delay, and to remedy a deled of the 
 common lav., which entitled a party to this writ, without 
 :_M;ii: the plaintill' seemly. h- elVi-ct wmt '< dt-troy the 
 implied sttpe rscdc ns of a writ of error, unless seem it \ \\;t,. 
 C'ases-daily occur dl i- niirj; writ> of error with 
 
 . ,i:id the only difference between 
 
 writ- at tills time and before tii; 1 statute or ait of assembly 
 .t it does not, at this time, supersede a-i e\f ( ution, 
 formerly it did -upn-ede it. 
 
 The act of assembly prescribes a different mode for tak- 
 
 ( iirify than the one |:ie-( rilied b\ the statiii. 
 - no further change of the common law in tin 
 
 ^ iiher the statute, nor the act of assembly, lej : 
 
 : laititiff' of any ri-Jit, or destroys any ; 
 rest or s li'nh either lie or the sheriff' had acquir- 
 
 ed. It extends not the legal operation of that wiit, not 
 does it* effect reach fart In r statute than it did 
 
 before, when 1 1 \ was given. It supei-ed, - not'niii- 
 
 . which it did not supersede before; but takes 
 from the !. !'< nd .mt that power which the. common law gave 
 liiiu, of fctayiu^; further proceedings on a judgment withoyr
 
 OF MARYLAND. SO 
 
 any security at all and this is the whole extent of the sta- 1 800. 
 tute and act of assembly, as far as relates to the present 
 subject. 
 
 No case has been cited, and none can be quoted, shew 
 ing, that by the statute or act of assembly, a more exten- 
 sive effect or operation has been given to the superseded* it- 
 self, than what it had at common law none of the cases 
 cited hinge on this principle. 
 
 At common law &fi. fa. charged only goods and chat- 
 tels. In this state lands also, in which the defendant IMS 
 any legal estate for his own use, may be taken under this 
 process; and being equally liable to seizure, that species of 
 property becomes,* of course, equally liable to the same 
 rules and principles which govern the other; I mean as to 
 the seizure, and as to the power of selling, and also as to 
 the alteration of property, but subject to a difference as to 
 the time and manner of selling it. A sheriff may maintain, 
 actions for injuries done to the one as well as for the other 
 species of property, according to the nature of the injury, 
 and the qualified interest which he has. 
 
 At common law a fi. fa. charged the defendant's goods 
 from the teste of the writ a writ of error, therefore, operat- 
 ing as a st/pcrsedeas, would destroy this charge, if there 
 had been no seizure, not express!?/ so, but by legal implica- 
 tion and consequence. But if the sheriff had seized goods 
 under af. fa. he thereby acquired a property in them 
 To what extent or purpose? For the purpose of selling 
 them, and of having the money in the coi-rt to pay to the 
 plaintiff. (Gilb. 15, &c.) This property of course was not 
 absolute, but qualified . It was co-extensive with this ob- 
 ject and purpose; and only extended thus far, and no far- 
 ther. Some authorities say, that by the seizure the de- 
 fendant's property was divested 'tis true, it was so, 
 but not absolutely. The expression must be construed with 
 reference to the subject and nature of the case; that is, as 
 far as the teste of the writ or seizure of the goods had 
 vested a right or property in the sheriff or the plaint iu" 
 so far, and no farther, was the defendant's property in them 
 destroyed. What was the purpose of the law in vesting 
 the property in the sheriff, or in charging the goods from 
 the teste, and afterwards by statute, from the delivery of 
 the fi. fa. to the sheriff? In the first place, to prevent 
 the defendant from fraudulently selling or wasting them;
 
 I . . 
 
 1806. and secondly, for I: :inp; them, 
 
 *"- - J-' 'and ' nirt. Tin i-luif, < 
 
 that tin* } .urpoM' of tin* law v lied, the 
 
 the U Derated and belonged to 
 
 whether they had been seized or nut. The pro]- 
 the *heriH' had acquired theft . < pay 
 
 rated, and the defenda*. 
 ship once more became rump' :ile the slirrill"-* pro 
 
 inta'm trovi-r or trespa-- 
 
 till a eale, the defendant might lav. fully, in mv judgment, 
 contrai ? for the wte f, or ///// fhr jrrl to fhr.. 
 
 '/'// Mr /< AW vmpo&cd on them. Now tin' 
 pherirt' had a qualified interest ia the s;ood.*: the dcJV, 
 : qualified interest al-o: and tlio-* qualifu-d \\r 
 together, composed a fall and absolute ownT-hip; each 
 party, therefore, had a property in the ^oods. if tin- sin-riff 
 . hffS executors had hi* proj-vrty in :othc 
 
 If gal purpose '. iloned. II \\. 
 
 enecu torsi had his interest. The |>O\MT v. hic'u . t'-te - 
 had of seliin-z, ^hen exercised, ultimately deterijft'nieJ th- 
 qualified interest of each, and \o^ted the ahsolucc O\\IK i 
 drip in the purchaser. After the loo;al purpuv 
 8 we red, the n-vidn:- uf the joods belonged to the dt-fcji 
 ur liis asaigas, an the lien or charge on the -Mmd^. or the 
 property i M r.f the dtfendunt had ceased, or u;^ 
 
 Let u HOV cTiider tiie nature of a writ of error, 
 its object and it* eti 
 
 -i, a< to I' It i- to H'!DC\" the record ainf 
 
 prteetdjag* of an inferior tribunal to a supci 
 
 ' that reccn!, and reverse the judgment of the in- 
 fetior court if it is erroneous: and the record must of course 
 be tl. iliject of inquiry, for the su^e^tiou upon 
 
 . that in the recoixl and j:: 
 tere it error. 
 
 It i .ind proceedings. Tf no //. /. 
 
 .'. has i*"- 1 .- . implication this v 
 
 error operates further, it suspends the power of the i; 
 
 urt to iwue a /'. f(t. fer t!:e n-( i : .!, in 
 
 law, an remored to mttmiti that the writ operates: there 
 lore there is no foundation for the inferior court ; 
 
 . a it can only be grounded on a judgment in tftr 
 which tames if. and the judgment is removed
 
 0V MARYLAND. Si 
 
 t?ie proceed ings. Hence the doctrine of contempt in the 1806. 
 inferior court in issuing the ft. fa. or the sheriff' in serving 
 it after such writ of error; and hence the doctrine of exe- 
 cutions irregularly issued; 
 
 But if the ft* fa- has issued, and is not served, the she- 
 \iflf has no authority to levy it for the same reason; because 
 by legal implication the power and authority of the inferi- 
 or court is superseded; and as the sheriff' derives his au- 
 ihority from the court, and although the writ of fi. fa. is- 
 sued while the court had the power to issue it, yet, as be- 
 fore the sheriff had levied the fi. fa. the power of the 
 court had terminated by legal inference and intend ment, 
 the sheriff, it he docs serve the fi. fa. acts without autho- 
 rity, the writ of error surceasing all proceedings. Hence 
 the doctrine of contempt in the sheriff* if he does after-- 
 wards serve the execution; and hence also the legal impli- 
 cation which makes the writ of error operate as a writ of 
 restitution of the goods thus taken in execution; because 
 the sheriff had no authority at the time to levy it, and his 
 seizure for that reason was irregular. 
 
 But if the fi. fa. or ca. sa. lias been served if the 
 goods or body of a defendant has been taken in execution, 
 then the common law writ of error does not supersede the 
 execution thus executed; for it is a principle of law, that 
 an execution is an entire thing, and once begun must be 
 completed. If a fi. fa. is levied, it is as much the duty 
 of the sheriff to sell the goods, and raise the money, as it 
 is his duty, if he has arrested the defendant on a ca. sa. 
 to imprison him till he pays the money. The seizure ^of 
 goods, and the arrest of the body, are the principals, the 
 selling of the goods, or imprisoning the body, are the in- 
 cidents. Now, if a writ of error will supersede the sale 
 after a seizure of the goods under ajfi. fa. why not the. 
 imprisonment, after the arrest of the body, if it issued 
 )nesne the occurrence of the principal and of the incident? 
 
 After seizure of the goods or arrest, the whole^ object of 
 the judgment and execution is answered as it respects the 
 plaintiff" and defendant. The defendant is discharged 
 from the judgment to the extent of the goods taken, and 
 the plaintiff looks to the sheriff only for the amount; or if 
 the body is arrested, it is a like satisfaction quo ad hoc; 
 and if then the writ of error supersedes all further pro- 
 f-eedings, it is only in the suit between the. plaintiff ;iryi
 
 \-F> IN THK COrilT OF APPKAl 
 
 1806. defendant, ami by the sc'r/.urc of tlio . 
 
 of thr judgment, or quo ad the aiuouiit of (lie go-., 
 or bv the airo"t of tin- bodv. all proceedings between the 
 plaintiff and defendant arc at ad end, and (here are MU 
 further proceeding- Mde. 
 
 This writ operate-. ;>1- > as a writ of restitution, but only 
 where an execution has irreynfurtij issued. M 
 tiirfi/ M-iM'd. If doe< not operate as :ich where t'< ; 
 
 ',///// f ()I " then the Vl -' rv principle upon which it 
 operate-, :i- a writ of restitution. iswan<i:ij. The/ 
 tarity here meant is evidently determined and .IM r:-t lined, 
 bv the time when the writ of error operated, cither mon 
 the jxiwer of the court it le the fi. fa. <ir upon the 
 
 power of the sheriff to execute the writ; his -a!.- in 
 case is void. 
 
 The writ of error annuls no act or proceedin-rs 
 
 / ji/lli/ <Ii>n'\ It l.-.-.vcs such arts in ;. A 
 
 .'ion, if th> jiidjrnenl i- if\er-f:l. OS!* 
 course. Now, if the xvrit of error i I self is in all 
 to be considered as a \viit of restitution, it is in . 
 inj the writ of restitution before a judgment of r \ cs <al, 
 which legally cannot issue till afterwards: that is. to -ive 
 the remedy first for the injury alleged to have been done, 
 and afteruards to determine whether the injury has been 
 done or not. 
 
 The sheriff can maintain trespass or trover for injuries 
 done the property in his posses-ion, as she rift', even if 
 done by the defendant. If the writ of error is a restituti- 
 on, as contended for, it avoi' <m or pro; 
 and i f>!!<e<|iicMi!y his rijjht to sue for such inj-.irv. Suppose 
 the defendant has committed such injury, and tin- sheriff 
 had sued between the iTih and '71st of the month 
 thi^ |:K | - :>ke.n, it i: < plaintiiV. ! 
 prop' 'Vfd and < <\ bv the wii< of er- 
 ror, and although 1 il |iiired he ho.iUl protect the 
 and sue for the injury done to it, yet the law, 
 which n-nuirc- and enjoins llii* dutv. defeat- the o!i'i^-i'mn 
 . and nonsuits i!ic very action it has 
 //IL' the dufv, directed him to brin.-. 
 
 Ot! 'iii'jht easily be suggested, whre ^iuii'.ir vio 
 
 lations ol i-iciple-; v. luild ari-o f, om the 
 
 : tl;e L-z-il oji'Tation of a writ of error, now 
 contended O.r.
 
 OF MARYLAND* 
 
 But although I am for a venditioni exponas issuing in 1806. 
 this case, I am not to be understood as saying that the 
 court would not lay their hands upon some cases of a like 
 application, where it evidently appeared that manifest in- 
 justice might be done. The money may be ordered to be 
 brought into court, and await the event of the writ of error. 
 This power should, however, be exercised, not upon the 
 suggestions of possible cases, but upon cases where there 
 exists well grounded apprehensions of such irreparable in- 
 jury, unless this power of preventing it was resorted to. 
 The circumstances, properly disclosed, in such instances, 
 should be previously made manifest to the court. This 
 power was exercised by the court in the case reported in 
 
 I have avoided, as T stated at first, any comments upon 
 particular cases. Those which hinge either upon the irre- 
 gularity of issuing the execution, upon the time when a 
 writ of error began to operate, or upon the rules of court, 
 founded upon the statute of James, I consider as not bear- 
 ing upon this case. 
 
 I have, on more than one occasion, examined into the 
 taw upon this subject. The result of my inquiry has long 
 since confirmed me in the opinion I have at present; and 
 although I have considered the cases cited by the defen- 
 dant's counsel with attention, I find no reason to alter that 
 opinion, but am more confirmed in it; but I lament that 
 accident prevented my hearing the arguments in this case. 
 
 A writ of audita querela, or a bill of injunction, in or- 
 dinary cases, will remedy any inequity in the judgment it- 
 self, or in issuing or completing the execution. But the 
 writ of error cannot be construed to have a more extensive 
 operation and effect, merely to reach the inconvoniencies 
 which possibly may arise from its ordinary extent and ope- 
 ration. The law has long since define;! its limits, and the 
 eourt cannot extend them. Other remedies are provided, 
 and open to the defendant's benefit, if the circumstances; 
 of his case require it, and we cannot create a new one to 
 give a more summary relief, even if the circumstance of 
 his case would justify a claim upon the score of particular 
 hardship. 
 
 VEXDITIONI EXPOXAS OR.QERKJ5. 
 
 . n.
 
 8-t CA>K> IN THE I'orUT OF APPEALS 
 
 1806. 'i.Ki.vir. 
 DECEMBER. 
 
 V Y^^" - ' APPKM. from a decree of the court of chancery, perpe- 
 
 ColT tf tua'ing an injunction. The, bill of complaint of ( 
 
 t *' e P n '"' :it appellee, I''* 1 ' l ' ic l tn of November I 
 ptJ'.'^f^Im"^^ statc( '' tMat on '' ' '" l "- ) '' purchased of Lynch, 
 
 J w p"''' k n< - h .'. till% :l PI K< l Ia N a tract f lan 'l fl)l " a lar ^ c Sll| n of money, 
 i^'.r.n 10 Tt" i t(l be P' 'V '"- ; tliat flu ' firsl instalment amount - 
 
 ''^''ojlfied to LI ]()!. and was intended, in a great men-ure, t 
 w"h'rin' 07p ai( l out of the first crop on the land, and by the sale of 
 Mc'rv.'nV.'nt" w o<l; that Li/nrh declared that the \vo<d on the land 
 iinM7n"Jir h bH would nearly pay for the land, and it was under-itnod and 
 which 'h^Miiunc- agreed, that the wood should be cut and carried to market 
 wkrlViMi *iuu-' for the purpose of paying the instalments, (in aid of the 
 ihei junction hai crop,) a the same should become due; t':at in considera- 
 
 been lo tay < v- . 
 
 c-ition ai iw, the tion of the express agreement that hin%.iinorc should have 
 
 i >|iindi'Ml niT br i n i i i 
 
 diu TM!. wufc leave to cut and sell the wood in order to meet the instal- 
 
 proTito thai not 
 
 m.rr i. irti-d ments, the complainant became bound in a bond with him 
 
 thin remain- itur ' 
 
 aft r^nowincrrr t Lunch, conditioned for tlie pavment of the fir^t i: 
 
 H'C c a- ' 
 
 rr 
 
 by ii, 
 
 _ '- ,nent of JL 1-200, with interest: that tlie complainant would 
 
 nut *lw*Ti i 
 
 ' ii llot navc Become security for the instalment, but under the 
 !" !) T thrre express proviso and engagement that fCuiz-wiore was to 
 putXlw.'"^ '.t have leave to pay it oft" by wood; and that the inducement 
 r'^m u'inilT- of his buying the land was the representation and state- 
 ui r fiMr t 'hr d ment made by Lynch, that the wood on the premises, so 
 d"r r Br ~ convenient to market, would nearly pay for the land. That 
 
 fronT'S. MA, IN Kinzxinnre paid .>(X) on account of the instalment; and 
 
 <!>< lonrt tnvrn for , . . . 
 
 ihr pu C h- mo- other sums of money, and articles or accounts were paid, 
 bound Mmy. winch Lijivh ha-;, or means to apply to other instalments, 
 
 H h*r>ni imnrrt i mi 
 
 ed him w,ik r although they were not due. at the tune. I hat Ams^smorf 
 
 id* Ihiii ihr mn- . 
 
 nrj mirfci - i-H c ut dowH SoO COfda of wood to enable bin to i>ay up the 
 
 fn.Tl llir tjlf of 
 
 ood ,. n ih. in.i. balance of his fr-t instalment^ and to exonerate the com- 
 
 lo pr--n' ihf <le 
 
 of wt.irh H iitrr plainant, his snu'tv; and tliat I.unch fraudulently medital 
 
 wirni obt iiiitil an I ' * 
 
 ttTKJr*!- h?!hr c 'l an act "^ oppression which he carried into eflect. |j\ 
 cr^7''\n" ' n ,"'>rin^i: ;'!i-iiediately after the first instalment be 
 
 r^'V . <>n the bond against Kingtmore and the com- 
 
 * U A". ppri ,, r plainant, and filing a bill in chancery, and obtaining an 
 r n-rr injunction, \vhuU j)ievent--l /\i>i^.iinorc from getting the 
 t H*IThv wood tr> market, and to cut other uood, &c. That jnd^ 
 
 ment has been obtained a-.'.iin-t the complainant by Lynch. 
 
 who has not credited the XoOO, nor with such other sum 
 
 of money, wood or articles which he may have received. 
 
 The bill ca.ls upon Lynrh to answer, &c. and to declare
 
 OF MARYLAND. ; 
 
 what sums of money, &c. he hath received. Prayer for 180G. 
 relief, and for a subpena, arid an injunction against execu- 
 tions issuing on the judgment, &c. Subpena and injunc- 
 tion accordingly issued. 
 
 The anstver of Lynch, which was filed on the 9,5th of 
 November 1800, denies that he ever declared or agreed 
 that the wood on the land should be cut and carried to 
 market for the purpose of paying the instalments, (in aid 
 of the crop,) as the same should become due or otherwise; 
 nor was any agreement ever made by him with Kings- 
 more^ by which the same was to be paid by wood, or that 
 wood should be cut and sold from the land for that pur- 
 pose; and therefore no inducement from such agreement 
 could have been the motive of the complainant for becom- 
 ing surety fur Kingsmore, no such agreement having ever 
 been made. He admits that he received 300 9 4, at 
 sundry times, as appears by one of the accounts exhibited, 
 which are all the payments whatsoever made by Kings- 
 more on account of the bond in which the complainant 
 is surety. He never denied the payments, nor claimed to 
 appropriate the same to any other instalment, but hath 
 been, and now is, ready and willing to credit the same on 
 the bond for 1200, in which the complainant is sure- 
 ty. That the credits in the other account exhibited were 
 paid and received, and applied to the discharge of another 
 debt due to the defendant for the articles mentioned in 
 the debit side of that account, sold and delivered, &c. and 
 had no relation to the land purchased. That Kingsmore 
 and the complainant, having failed to comply with the con- 
 dition of their bond, the defendant caused suits to be in- 
 stituted for the recovery of the balance due thereon, and 
 hath obtained judgments at law. That Kingsmore having 
 proceeded, against the consent of the defendant, to the 
 cutting and selling timber, and other trees, growing on 
 the land, and done other acts greatly endamaging the es- 
 tate, and injuring the defendant, he applied for .and ob- 
 tained an injunction, &c. He denies all fraud, &c. 
 
 HANSOV, Chancellor, (November 25th, 1800.) The 
 defendant having put in his answer, and entered on the 
 docket notice ot motion to dissolve the injunction in this 
 cause issued, it is at his instance ordered, that the motion 
 stand for hearing at next term; provided a copy of this or-
 
 36 CAM:.< IN THE COURT OF APPEALS 
 
 1806. far be fenred on tin- complainant before the end of the* 
 present month. 
 
 A service of the above order was proved to have been 
 made, on the 27th of November, 1800. 
 
 II \NSON, Chancellor, (January 6th, 1801.) The moti- 
 on to dissolve, &c. being submitted, &c. The Chancellor 
 must, on this occasion, repeat a rule, \\hich he lias always 
 adhered to, and which he conceived was well known 
 'Whenever, on motion to dissolve, it appears from tin- an- 
 swer that the complainant was entitled to an injunction at 
 the time of obtaining it, ' same shall continue until final 
 hearing, or further order, unless the defendant admit 
 ry thingalleged in the bill, on account of which the injunction 
 was obtained."' "When that admission is made, and the in- 
 junction has been to stay execution at law, the injunction 
 may be dissolved with a proviso, that not more be levied 
 Uian remains due after allowing every thing claimed by the 
 complainant; but when a proper ground for the injunction 
 is admitted by the answer, and there still remains a dis- 
 pute between the parties, the injunction is invariably con- 
 tinued until final hearing, or further order. Great and ob- 
 vious inconveniencies would follow from a different prat , 
 tice. In the present case, it appears from the answer, that 
 the complainant, at the time of obtaining his injunction, 
 was liable to an execution, (if liable to an execution at all,) 
 lor more than was due, but in admitting this, the defendant 
 denies the other grounds of equity; .he denies that the com- 
 plainant is entitled ti> all the deductions which he claim.-, 
 so that a dispute remains between the parties. This case, 
 like many other cases, shows, that taking an indefinite judg- 
 ment does little for the plaintiff at law, but affords a f;:ir 
 ,t to the defendant at law for further delay, and isal- 
 -IMC to produce a fresh suit between the parties. It 
 i-> thereupon adjudged and ordered, lhat the injunction, in 
 tus? heretofore issued, shall continue until final hear- 
 ing of the cause, or further order. 
 
 The complainant entered a general replication to theau- 
 fcwer of the defendant, and a commission issued, and tr- 
 timony taken thereunder, and the cause subntitted, &c. 
 
 HANSON, Chancellor, (October term 1801.) It apjn 
 to the Chancellor that the defendant, from his conduct, 
 ought to be considered as having released the complainant
 
 OF MARYLAND. 37 
 
 from his engagement. It is plain from the evidence, that 180G. 
 the defendant had at least impressed the complainant, be- 
 fore he became security for Kingsmore, with an idea, that 
 the money would, or might be paid from the sale of timber, 
 and other wood, on the land, and it is extremely probable, 
 if not certain, that the complainant was thereby induced 
 to become a surety. Whether or not, without that induce- 
 ment he would have become security, is not material. It 
 is certain that if his engagement remains binding, he has 
 been or may be greatly injured by the defendant's obtain- 
 ing an injunction; and the question is, whether he shall 
 sustain that injury, or the defendant, who has done the 
 wrong, be deprived of one part of his security? The 
 Chancellor on this question cannot hesitate, and on the pa- 
 pers and proceedings in the cause does not perceive how 
 he can do otherwise than decree a perpetual injunction. 
 Decreed, that the injunction, heretofore issued in this cause, 
 be perpetual, but that each party bear his own costs. 
 
 From which decree the defendant appealed to this court; 
 and the case standing under rule argument at this term, 
 the appellant's death was suggested, and the case was en- 
 tered abated (a.) 
 
 Jtidgely, Johnson, (Attorney-General,) and W. Dorsey, 
 for the appellant. 
 
 Key, for the appellee. 
 
 (a) It does not appear whether or not the entry of abater/frit in 
 this case was made by the court after argument, or hy the coun- 
 sel concerned In the case of Roche vs Johnson, et ux in this 
 court sitting on the Eastern hhore, it appeai e<i that at June term 
 181.6, the case was standing under rule argument, when the death 
 of the plaintiff in error was suggested 
 
 J. Hayly, tor the defendant in error, submitted the question to 
 the court, whether or not, this case standing under rule argument, 
 the death of the plaintiff in error abated the wnt of error. He 
 referred to the arts of IT^S. cH 80, and 1801, ch 7+, s. 3H 
 
 THE COURT decided that the case did not come within the pro- 
 visions of the acts of 1785, ch. 80. and )S01. ch 7J But whether 
 the writ of error abated, the case being under rule argument, the 
 court were not then prepared to decide, and the final decision of. 
 the question they postponed for lurlher consideration. After- 
 wards, at June term, 1807, the cour! derided, that a writ of error 
 or appeal did not abate by the death of either party, if the casa 
 was standing under rule argument before the death was suggested. 
 This decision was made by the court independent of the act of 
 NoTember 1806, ch. 90, s. I'l.
 
 38 - IN 1 UK LorUT OF Al'I'KAL.- 
 
 1806. ^1 
 
 DECEMBER. 
 
 APPF. \\. from the General Court. An a< 
 
 was hroii>;lit on the testamentary boml, executed on the, KtK 
 f February 17Tt), I<> the Lord Prop; ',r!.ir\ . on tin- < 
 |.,"!of Edward Mvrun y deceased, by the appellant, (the de- 
 
 iVudant in the court below,) as his e\eci:ior. 'I hi- d 
 ?" daut pleaded perfoimance, to which the- plaint:!^ replied 
 ..-.. nonperfbrmance, assigning breaches that the dece.i-d, by 
 4*" l v< J >t 'iVw^his will, bequeathed to liis daughter Elizabeth, the iemalu 
 dtetawi fcct* 'a* plain tiiV. .1.100 on her arrival at ago, &.c. with itr 
 !f ' brnrh. I iur and he also beiiueathed to his daughter Susanna, .1.100 on 
 
 th in in p rform- 
 
 - of the c.. n< ii- her arrival at a^e, &.c. \vitn interest, &.c. that died 
 
 oftiti*n, IH. 
 
 toon o 
 
 wn b"nd! P"-r intestate, whcrebv one sixth part ol tlie said legacy, amo 
 
 On thr (tin of 
 
 mtatiri*. r piene j ng ^o 50, became by the testator's wfll due and payable 
 
 miimtini'iarit. ihr 
 
 . nu .. proionrfi ii to t h e said Elizabeth, &.c. And that the executor had not 
 
 on thr |.ri oftnr 
 
 in ofnP*' 1 ' tne Sa!l ^ legacies, &c. The defendant rejoined no as- 
 ' ' piJii **'* a\u\ pat/in rnt in the following manner, viz. 
 
 ** rt And the said R. M. sailh, that the said 1). S. and E. 
 ce f nVJri.x X u f t^I his wife, ought not to have or maintain their action afore - 
 i?b" b?>'iiHi r,TM'said agtiinst him, by reason of any thing above by them in 
 &c? U {Turrc** 11 " replying alleged, because he saith, ti at no ;>oods and chat- 
 mnuCK * inri- tcls, which weivol the said E. M.at the time of his death, 
 equally nd pro- have come to, or been in the hands of him the said H. M. 
 ri" Ki.'di'intNu to be administered: and that he hath n:>t in his ham!- 
 
 frti ihi* r> t.du< of 
 
 idministered, no>- had he on the dav of the impetration of 
 
 lt<T |. a; mi nt of 
 
 ^c ""a* tlie original writ in this cause, any assets, goods or chj 
 
 which were of the said K. M. at the time of his death; and 
 this he the said R. M. i> ready to veiifv: wherefore he prays 
 judgment, whether the said D. S. and K. his u ife, their 
 afon - n against him to have or maintain ouijht, &c. 
 
 And the said K. M. as to the breach in the replication of 
 them the >aid 1). S. and E. his wife, above alleged, as to 
 the nonpayment of the said le-.Mi-ir-. he sa'uli. thai :' 
 I). S. and K. his \\ifc, thi-ir afore-aid action against him to 
 have or maintain, by any thins therein alleged, ought not, 
 BM he saith, that afler the airixal to age of the said 
 K. to \\it, on the. 6u. he the said R. M. paid to the said 
 K. whiNt she was sole, and before her intermarriage uiih 
 tid I), the sum of .300, in form aforesaid bequeathed 
 to her liy the \villof the said K. M. and theintere-t thcir- 
 OD due, as also the said sum of .50, the share or proporli 
 : i he -aid K. of the said 300 bequeathed to her as 
 aforesaid, on the death of the said S. together with interest
 
 OF MARYLAND. 
 
 thereon due, to wit, at Harford county aforesaid; and this 1806. 
 he the said R. M. is ready to verify. Wherefore he prays 
 judgment whether the said B. S. and E. his wife, to nave 
 or maintain their aforesaid action against him ought, Sec." 
 
 To which the plaintiffs surrejoined assets, and nonpay- 
 ment "as follow, viz, "And the said D. S. and E. his wife, 
 as to the first rejoinder of the said R. M. above alleged, 
 from having and maintaining their action aforesaid against 
 him ought not to be precluded, because they say, that goods 
 and chattels which were of the said E. M. at the time of 
 his death, did come to the hands of him the said R. M. to 
 be administered, and that he hath in his hands to be admi- 
 nistered, and had on the day of the impetration of the ori- 
 ginal writ in this cause, assets, goods and chattels, which 
 were of the said E. M. at the time of his death; and this 
 the said I). S. and E. his wife, pray may be inquired of 
 by the country; and the said R. M. in like manner, c. 
 And the said D. S. and E. his wife, as to the second re- 
 joinder of the said R. M. above alleged, their action afore^ 
 said against him from having and maintaining, by any thing 
 therein contained, ought not to be precluded, because they 
 say, that after the arrival to age of the said E. to wit, on, 
 &c. he the said R. M. did not pay to the said E. whilst 
 ghe was sole, and before her intermarriage with the said D. 
 S. the said sum of 300, in form aforesaid bequeathed to 
 her by the will of the said E M, and the interest thereon 
 due, as also the said sum of 50, the share or proportion 
 of the said E. of the said 300 bequeathed to the said E. 
 on the death of the said S. together with the interest there- 
 on due, to wit, at Harford county aforesaid; and this the 
 said 1). S. and E. his wife, pray may be inquired of by 
 the country; and the said R. M. in like manner, and so 
 forth." 
 
 1. The defendant at the trial at May term 1803, pray- 
 ed the opinion of the court, and their direction to the jury, 
 that before the defendant is bound to produce evidence on 
 his part to prove that he had fully accounted for the estate 
 of Edward Morgan, deceased, in the replication mention- 
 ed, it was incumbent on the plaintiffs to prove, that assets 
 or personal property of the deceased had come to the hands 
 of the defendant. 
 
 CHASE, Ch. J. (a.) The court are of opinion, that it is 
 incumbent on the defendant to support the issues on his 
 (a) Done, J. concurred. Sprigg, J dissented.
 
 CASES IN THE COURT OF APPEALS 
 
 1806. part, by proving that he had not assets to pay the legacies 
 v ' for which this suit is brought, or that he has p:i'nl tin- -aim'. 
 before plaintiffs adduce any proof to show that asset > m 
 
 personal property of /,'.//,'.//</ Mur^/in, had come to the 
 hands of the defendant. The defendant excepted. 
 
 2. The defendant then offered in evidence, that Edward 
 Morgan, the testator, resided in Ifarford county, having 
 due to him at the time of his death, which happened in tho 
 year \7r~\ about 1 1000 from different persons, which sum 
 constituted, at the time of his death, the principal part of 
 his personal estate, and which sum was afterwards, in tho 
 1779, paid to defendant, his executor, in depreciated 
 continental currency, whereby a large part of the terror's 
 personal estate was sunk and lost. The defendant further 
 offered in evidence, that lie, as executor, had equally and 
 proportionally, or nearly so, distributed the residue of the 
 personal estate among the different legatees named in tho 
 will of the testator. 
 
 C'II\SK, Ch. J. The court are of opinion, that the evi- 
 dence is inadmissible, and they refuse to permit it to go to 
 the jury. The defendant excepted; and the verdict and 
 judgment being against him, he appealed to this court. 
 
 The cause was argued at the last term before TILGHMAX, 
 BUCHANAN, NICHOLSON, and GANTT, J. 
 
 Johnson, (Attorney General,) and .Wayntilrr, for the ap- 
 pellant, in their arguments contended, 1. That on the i-,- 
 sue to the rejoinder of no assets, the onus probatuli uason 
 the part of the plaintiffs below. '2. That if an executor 
 neglected to ret'ini an inventory, he was not bound for all 
 
 - 
 
 debts ami 3. That the replication wa> defective, 
 
 in not averring; that there were assets sufficient to pay the 
 legacies. They cited and relied on the act of October 
 c/i. 20. Parson vs. Ilrnry, 5 T.ll. 6. Bull. /V. /'. 140. 
 : ngtt. Pe.tr r.,. 1 T. fl.688. Orrvn. Km . 194. 
 
 Qttynn vs. TJie SttiJr, \ Hurr. ^ John*. 36. fltkim vs. 
 //III. I Cnii-f,. -:si. KG .. M>. 369, 458. Sinn. Cl-2, 229, 
 401,420,427. Esp. Dig. '^l. 
 
 Martin* and T. Bucluoian, for the appellees in their ai 
 guments, contended, 1. That the plea of pcrforman< 
 an admission of assets, and the plaintiffs below were not 
 bound to aver ast in the replication. 2. That tli
 
 OF MARYLAND. 41 
 
 joinder of no atsets was a departure from the plea of per- 1206. 
 forrnance. 3. That the defendant could not. by his re- 
 
 . 
 
 joinder to the replication, put in issue two separate and 
 distinct facts. 4. "Whether or not the plea of no assets 
 was in effect the same as a plea of plene adminislramt? 
 5. That on the issue to a pica of plene administravit, the 
 onus probandi was on the part of the defendant. 6. That 
 if an executor neglected to return an inventory, he was 
 answerable for all debts and legacies. 7. That after ver- 
 dict it would be presumed that all essential evidence was 
 submitted to the jury. They cited and relied on Swin. 401. 
 11 Jin. M. tit. Executor, 580, pi. 152. 2 Show. 163. 
 14 Vin. Ab. tit. Inventory, 466. Toth, 183. Godb. 145. 
 146, 151. 12 Mod. 346. 3 Bile. Com. 393. Rushton vs. 
 Jlspinull, Dong. 683. Roe vs. Hough, Salk. 29. Hawk 
 vs. Crofton, 2 Burr. 890. Swin. 212, 229, 401. 
 
 THE COURT OF APPEALS concurred in the opinion given 
 by the General Court in the second bill of exceptions, but 
 dissented from that given in the first bill of exceptions. 
 
 JUDGMENT REVERSED, AND PKOCEDENDO AWARDED. 
 
 M'MF.CHEN vs. THE MAYOR, &c. OF BALTIMORE. DECEMBER. 
 
 ERROR to the general court. This was an action of debt a eTrpo^tion can 
 brought the 8th of April 1801, in the names of the defend -SSZ***?, 
 ants in error, for the use of A. Storey, on a writing obliga- ""-ney i'<a?!ym!" 
 tory bearing date the 23d of January 1799, executed by of 'attorney under 
 Thomas Yatcs and Archibald Campbell, with David Stewart tai? Qnere 
 
 A warrant of 
 
 and the plaintiff in error, their sureties, to The Mayor and attorney need not 
 
 J be spread on the 
 
 City Council of Baltimore, (the defendants in error,) in the l-ec " r .' u 
 
 ' ^ I ne appellate 
 
 the penal sum of 830,000 current money, reciting, that vei I u t e or"h t e '! 
 
 cord, but -vill 
 make every necessary ini^ndment in support of the judgment of the in&rjorenurt. 
 
 A i ml foment by confession is an admission of the n<lit ot'llic nominal plaintiff lo recover the penally 
 c.f bond having a collateral condition; and wht-thc- the Judgment is in thy n^lit of the plaintiff, 
 or for the use of another, is not material, and cannot be a cause fur reversing it. 
 
 The court will not so construe the recital in a bond as to defeat its operation and render it a 
 nnliity. 
 
 An act of asembly directing that an auctioneer sha'l cfive bond before he obtains a license, if the 
 
 , and 
 and 
 
 fact was that the license was obtained prior 10 tlie execution of the bond, it was capable of proof, an 
 >:i tlir power of the defendant to have availed himself of it on his pita of general performance, an 
 insisting on that fact in his rejoinder to the plaintiff's replication assigning the breach. 
 
 A surety U not aniuerahle beyond his enofaft'ement. 
 
 Where* defendant, having pleaded gfiicral ]iertbnnance to a bond with a collateral condition, 
 ami without n replication on the part of the plaintiff assigning breaches, withdrew his plea, and 
 confetsed juilginent /fcW, that such judgment admits the plaintiff's claim to the extent of the pe- 
 nalty of the bond on which the nctinrt was brought. 
 
 A cepeaiing ordinance cannot destroy or affect any right which was acquired by any person 
 under the fint ordinance before its re|wal 
 
 A person \\lio entrusted an .i-.K-.tione.ir willi the sale of gODds, and has a claim against him for 
 money arising on the sale, his a right to ap,tly for and direct a suit ou llu: auctiond-r's bond for the 
 recovery of his chum. (Xotc.J 
 
 VOL. II. 6
 
 CASES IN THE COURT OF APPEALS 
 
 180ft. "wherean the abo\e bound Thoimn J'aten and .Archibald 
 Cbmpfreffhave obtained from tin 1 ma\or a license of admis- 
 
 , under tin* seal of tin' corporation, to u-r ;intl e\ 
 the trade or busin. <>f ;UK tiomvi -: ami by an ordinance 
 of the corporation, persons obtaining such license are di- 
 rected, before they enter upon the functions or duties of 
 the office, to give bond for the faithful performance of the 
 several trusts and duties required of thrin by tin- af->i 
 ordinance;*' and conditioned, "that if the above bound 
 Tfiomaa Faffs and Jrchihuld Camphell, do and shall pay 
 and satisfy all just claims that may be against them as auc- 
 tioneers, and shall and v ill faithfully execute the office and 
 employment of auctioneers, and in all things well and faith- 
 fully perform the several duties required of them by the 
 ordinance, entitled, ,9n ordinance for lirrnxiny ami regu- 
 lating: auctions wit/tin the c'/y of Baltimore and precincts 
 thereof, then this obligation to be void, otherwise to be and 
 remain in full force and virtue." Which bond wn- 
 clorsed, "Approved, January 24th, 1799. James Cal/mvn, 
 Mayor of the city of Baltimore." The defendant in the 
 court below pleaded general performance; but afterwards 
 relinquished his averment, and conff-x-d ju.i-mont, which 
 vas entered for the amount of the penalty in the bond, the 
 debt in the declaration mentioned, and cost*: and \\hich 
 i-eement was to be relenset' on payment of J54154 SO, 
 with int-ri"t thereon from the l>t of January 1800, and 
 costs. The defendant afterwards brought the |.re-ept \\ lit 
 of error. 
 
 The cause was argued before CHASE, Ch. J. BUCHANAN 
 and GANTT, J. 
 
 , for the plaintiff in error, contended, that it 
 did not appear by the record that there was any authority 
 from the Min/nr and Cilt/ Council of Baltimore to autho- 
 rise any person to prosecute this action. A corporate body 
 cannot appear in per>on, or by attorney, to prosecute or 
 defend a Kuit, unless by letter of attorney under their cor- 
 porate seal. 1 Blk. Com. 502. 50,1. To enable an attor- 
 ney to appear for a corporation, he must be authorised, by 
 warrant of attorney, under their common seal. It doe* 
 not appear by the record that there was any warrant of at- 
 torney authorising any attorney, or other person, to insti- 
 tute or prosecute this action; if such authority was give*
 
 OF MARYLAND. 48 
 
 it should have been certified in the record.} Special errors, 1806. 
 assiarninr thai: there was no such warrant of attorney, 
 were uttered at the last term, but general errors having be- 
 fore been assigned, they were reiused to be received by 
 the counsel for the defendants in error. They had notice 
 therefore, that under the general errors, the want of a 
 Warrant of attorney would be relied on by the plaintiff iu 
 error. The special error, that there is no warrant of at- 
 torney certified in the record, is relied on, and now offer- 
 ed to be assigned; and it is prayed, on the part of the plain- 
 tiff in error, that a certioruri may issue, directed to the 
 keeper of the records of the late general court, requir- 
 ing him to certify whether or not there is any warrant 
 of attorney in this action. That a writ of certiorari should 
 be granted in this case, fully appears in Lill. Ent. 237, 
 253, 3.52, 556, 558, 560, 
 
 Key and Harper, for the defendants in error. The writ 
 of certiorari ought not to be granted for the purpose al- 
 leged. The practice of our courts is to consider the ap- 
 pearance of an attorney for either party to be regular, and 
 that he had sufficient authority to do so. In the case of a 
 common person it has always been so considered, and there 
 is no reason why it should be otherwise in the case of a 
 corporate body. The warrant of attorney is no more ne- 
 cessary in the one case than it is in the other. If the writ 
 of certiorari were to issue, and it was certified that there 
 was no warrant of attorney, this court would presume the 
 attorney had authority; and if he had no such authority, 
 the corporation had their remedy against the attorney for 
 an improper use of their name against their consent. In 
 the case of The Corporation of the Roman Catholic Clergy- 
 men's Lessee vs. Hammond, 1 Harr. <" Johns. 580, there 
 was no warrant of attorney, and no objection for the want 
 of it was made. It is every day's practice to use thr 
 name of the state in actions on public bonds, without any 
 special directions for that purpose. 
 
 Ridgely and 'M'Mechen, in reply. The case of 77/c 
 Corporation of the Roman Catholic Clergymen' 's Lessee vs. 
 Hammond, was an action of ejectment, wherein a demise 
 was stated to have been made to a lessee, and the action was 
 brought in the name of the lessee. That case, therefore, 
 has no bearing on the question before this court. It is by 
 common consent that an attorney appears for an individual
 
 ill, CASES IN THE COURT OF APPEALS 
 
 18O6. vrithont a warrant of attorney. ' <;i objection made, 
 
 v -v ' the court would not permit it. The honk-, however, are 
 
 ' ' explicit, that a corporation. beinv an in\ not 
 
 The Myur, Ute. 
 
 appear i"i prison, but innt appear by attorney, authorised 
 bj warrant of attorney under (heir -orj,< and it 
 
 is fatal Wilds there be' such authority. \Viih respect to 
 the mine Hi . .- an express act of 
 
 assembly authorising it in suits on te-tamentan, , admini*- 
 tration, sheriff's, and other public bonds. 
 
 CM \sr, Ch. J. The court consider that it is not Dec- 
 ry to spread the \\arrant of attorney on the record. K\ 
 thing will be intended in support of the judgment, unless 
 the contrary appear-. 
 
 AI*Mrrhen, for the plaintiff in error, then contended 
 1. That the bond was not taken in conformity to the ordi- 
 nance of the Mayor and City Council of Ilultiiimrr of the 
 12th of December 1798, but was entered into after, in.-tead 
 of before the license was granted. He referred to that 
 ordinance: also to The Inhabitant?) &,-c. of Chitfintlon v*. 
 J'itiliitrt, 1 .S'/'/A-. 4T-"i, and 7>V.r vs. Croke, Coirp. 26. 
 
 -2. That the ordinance, under which the bond v, a -> tak 
 en, was repealed previous to the brin^inu; thi-. ;u tion; and 
 th-' ivpeaUnv; ordinance saved no rights, the action 
 
 ild not be Mippoi tr-d. He releired to the act of 1796, 
 fh. 68, a. 8. Miller's case, t It'. I!lk. Hep. 451. 6 Jiar. 
 Jib. tit. HutHlf, (D.) 37-2. and Hex vs. The Justices of 
 London, .1 />'"</-. 14oG. 
 
 5. Tliat liii- action i> stated to be brought in the names 
 of Tl Maym- and City Council of Jialtiinorr, at the in- 
 stance and for the use of Alexander Storey. lie referred 
 to Murtijn r.v. Jilnd. 1 Doug. 14 C 2. The a '-inblv 
 
 Mr t Mber 1780, c/i. 30. May 1781, c/i. 11; 17H-4, r/*. <ii: 
 179<), . '.. I :: ai.il i.-'.ui, cli. 68. 
 
 4. That in a suit on a bond against a surety, it must be 
 shown that he is bound. That a surety is nut bound be- 
 yond the scope and extent of his engagement, which are 
 confined to the strict letter of the bond. He referred 
 :/i/ r*. Russell, 3 H'ils. 530. Sbs vs. Gullotrmj, .1 
 // .. >y M- /f,,i. 204. The Stale vs. Huilt*, /In,! 
 Strnton vs. Kastall, 2 71 It. 366. Quynn L-.V. The A7ci/c, 
 1 ffarr. 4- Johns. 36,
 
 OF MARYLAND. 45 
 
 S. That there was no replication assigning the breaches; 
 jmd that the confession of judgment did not cure the de- 
 fect. He referred to Qttynn rs. The State, 1 Harr. <$ 
 Johns. 36. Hardy vs. Moore's Ex'rs, 3 Han. fy M*Hen. 
 389. Howie vs. The Stale, Ibid. 408. Dorsey vs. Steven- 
 son's adrn'r. 4 Han. fy M'Htn. 351. Greens adm'r. va. 
 Couden's adm'r. Ibid. 352. 
 
 Key and Harper, argued for the defendants in error. 
 
 CHASE, Ch. J. delivered the opinion of the court. The 
 court cannot travel out of the record, but will make every 
 necessary intendment in support of the judgment of the 
 inferior court (a.) 
 
 The judgment by confession is an admission of the right 
 of The Mayor and City Council of Baltimore to recover 
 the penalty of the bond; and whether it is in their own 
 right, or for the use of another, is not material, and can- 
 not be a cause of reversing the judgment. 
 
 According to the record, and the nature of the transac- 
 tion as disclosed by it, the legal and necessary intendmenl 
 is, that the bond and license were given on the same day, 
 and that the execution of the bond preceded the granting 
 of the license, because the nature of the transaction re- 
 quired it. 
 
 The court cannot so construe the recital in the bond as 
 to defeat its operation, and render it a nullity; such an ex- 
 position would be a violation of the plainest principles of 
 law and justice. 
 
 If the fact was, that the license was obtained prior to 
 the execution of the bond, it was capable of proof, and in 
 the power of the plaintift' in error to have availed himself 
 of it, by retaining his plea of general performance, and 
 insisting on that fact in his rejoinder to the replication of 
 the defendants in error assigning the breach. 
 
 That the security is not answerable beyond his engage- 
 ment, is a position that cannot be controverted. 
 
 In this case the plaintiff in error, as security, reposed a 
 confidence in the principals, the auctioneers, and not in the 
 mayor; and actually engaged that the auctioneers should 
 pay and satisfy all just claims against them as auctioneers; 
 
 (a) If by any means whatever the plaintiff can be supposed to 
 have a title as laid in the declaration, as this is after verdict, we 
 will hold this judgment right, and there is no inconsistency. 1 
 It'ils. I. 3 Burr. 1725, 7.
 
 CASES IN THK COURT OP APPEALS 
 
 1806. and the j'ldzmont, by confession, admit* the claim of 7V* 
 
 ^- v ' Mui/nr dint ('it i/ Council of Jinltiiiwn\ against the plaintift" 
 
 " in error, to the extent of the iienaltv of the bond, subject 
 
 Dickwn 
 
 to the release on the record. 
 
 The repi-alins; ordinance cannot destroy or affect any 
 right which was acquired by any person under the first or- 
 dinance before the repeal thereof. 
 
 JUDGMENT AFFIRMED (&) 
 
 (n ) The court were al*o of opinion, (though at this point wa* 
 not before them, they o mi' ted it in the wiitten opin on W.ich was 
 delivered,) that every person who entrusted the auctioned* with 
 the tale of goods, and had a claim against them tor money arising 
 on the sale of the goods, has a right to apply to the mayor and 
 city con no I to direct a suit to he mHiluted on the bond of she 
 auctioneers for the recovery ot his claim, and the corporation 
 could not, consistent with their duty under the ordinance, refuse 
 such application, and might be enjoined, by suil in chancery, to 
 allow the person to use their name to prosecute his claim. 
 
 DECEMBER. HAFFNER'S Devisees vs. DICKSOX'S HEIIU 
 
 f 7 APPEAL from a decree of the court of chancery. The 
 ll was filed by the present appellee, (the complainant in 
 wi the court of chancery,) on the 9th of July 1792, against 
 'in f- Frederick Hajfncr, who died without answering the bill, 
 jMM*Mf , bat MA* and a bill of re\ivr was afterwards in May 1796, filed 
 *Mibr^t'<a>afMB>t ''is son* and devisees, the present appellants. The 
 ."t^ihf cts7nd facts stated in the original bill, bill of retivor, and in an 
 MitKtnrffewM amended bill, are, that Frederick Uqffher, on the llth of 
 
 dctr-<d llml On- 
 
 pomp't. .h.Miia May 1764, entered into a bond to James Dickton, the 
 
 < hi CtKU ID 
 
 er of the complainant, conditioned, that if 
 liis heirs, &c. "do and shall well ami truly convey and 
 make over unto the above named Jamex /Jickson, his heirs, 
 &c. by a good and sufficient deed, of one full half of the 
 Jtesitrvci/ on the Dixcovcry, anl now patented and called 
 I/fiff'ner's (V/oj'cf, on or before the first day of July next en- 
 ^-uin^ the date hereof, then," &c. At the foot of the bond, 
 and before the signature of the obligor, it was tfius written: 
 "It is to be remembered, that, brlmr -i-nin- am i M - a lin;r, 
 it is agreed, that out of the above tract 100 acres shall In: 
 laid off for Daniel Mwldts, and then one half of the re 
 mainder i to be conveyed to James Dickson." That the 
 land is called and designated in the bond of con\ey.i:u c 
 by a wrong name. T!ia> Huffner originally, on the 10th of 
 November 1752, obtained a grant for 45 acres of land, call-
 
 OP MARYLAND. 47 
 
 ed Hammer's Discovery. That a warrant afterwards issu- 1806. 
 d on the 1st of February 1760, and renewed on the 22d 
 of September 1761, to resurvey the land under the name of 
 Haverner's Discovery. That a certificate was returned, 
 dated the I Oth of December 1761, and patent issued to 
 Haffner for the land by the name of The Resurvey on Ha- 
 venear's Fancy, on the 29th of September 1762. That by 
 the table of courses annexed to the certificate of Tlie Re- 
 survey on Haveneur's fancy, it appears that Haverner's 
 Discovery was the land resurveyed; and by the rent rolls 
 it appears that The Resurvey on Havanor's Fancy was 
 originally called Havanor's Discovery, and contained 45 
 acres. That the land patented under the name of The Re- 
 survey on Havenear^s Fancy, and the land which Hajfner 
 obliged himself to convey by the bond of conveyance, is one 
 and the same tract of land, and not different. That Haff*- 
 ner, being seized and possessed of the land, came to an 
 agreement with Dickson relative to the sale of a moiety of 
 the same, deducting 100 acres, and that Dickson paid the. 
 full amount of the purchase money agreed on, and in con- 
 sideration thereof, Hajfner executed the bond to convey 
 the moiety to Dickson in fee simple. That Dickson died, 
 after the payment of the purchase money, and the date of 
 the bond, in possession of a moiety of the land, and left 
 the complainant his heir at law, who is in equity and jus- 
 tice entitled to a conveyance thereof, pursuant to the bond. 
 That Haffner is since dead, having by his will devised the 
 land, of which the complainant claims part, to his sons, 
 the defendants, in fee simple, as tenants in common, &c. 
 Prayer that it be decreed that the defendants convey a 
 moiety of the land, according to the bond to the complain- 
 ant, in fee simple, together with such further and other re- 
 lief in the premises as complainant's case may deserve, &c. 
 The answers of the defendants state, that their father did 
 own a tract of land called Havener's Discovery, but no 
 warrant of resurvey was obtained by him to resurvey that 
 tract; but it was to resurvey Havenar's Fancy, and under 
 that warrant a survey was made, a certificate returned, and 
 a patent granted to their father, for a tract of land called 
 The Resurvey on Havenear j s Fancy, containing 695 acres, 
 of which their father was seized and possessed until his 
 death; and since his death the defendants have been in the 
 <s?ixin and possession, and are now seized and possessed
 
 4S CVSKSINTHI i OK APPEALS 
 
 thereof. That tl> re'il 
 
 into bet ween their father and Dii-ksnu, :unl onlv know what 
 land he sold to I)ir.kton, if unv, from the pap- 
 by tin- t omplainant; and thev do not know, nor ran they 
 admit, that it wa- i.l '/'// /.' 
 
 jRJry. for the conveyance of \\liii h the bond was :;i\en. 
 That they understood from tin ir lather, (hat 1 u- 
 
 'I a Mirxey m.-Miy yars a;o, he included more land there- 
 in than he thought him-vll able to pay tor in the land of- 
 fice, and therefore agreed with /)!ck.ion to let Iriiu have 
 half the land so taken up, provided he w;>uld p:tv half the 
 caution money, and other expenses attending the securing 
 n;ul rnakirii; |)-.'if'i-t the title to the same. That t'tn-v 't'en 
 heard their father av, that it \vas in co' 
 sjreement. and upon no o(hr consideration whatsoever, 
 lh.it he passed hi- !)^n-l to D'ulson for the conveyance of 
 lain lands in the Uond iner>t u'lich I>o7id they 
 
 h:t\ Tliat tliev have hivn informed, &c. that 
 
 when th'- rertilicate of niirvev for tl-," !:-nd thus rontracted 
 for was 10 tlic land (!lire, IH>-kstni \\a either un- 
 
 alile or unwilling to pav his preportion or dividend of the 
 e^penseH necessary to secure the land; and that their father 
 was compelled so to do, and did actuallv mike sacrifices 
 to borrow and procure the monev to secure tlie land, and 
 did actually pav for the whole himself: and (hat their father 
 never did nneive frn:i I)i>l,-^>n any va'na'!e, or other cm- 
 sideration, for the l>ond which he executed in manner afore- 
 1. That thev have also understood from iheir father, 
 that no writing of anv kind e\er parsed to him fniiii Dlrk- 
 xo, -inn tl^e land: that their father, hrin^ ; ,ii illiier 
 
 ate man. and repo>iiir.: -m-e in />/-/. -wii, t-i.k 
 
 no writin-j; fVo:u him on the husinr-.s,. T!n-\ do not l.rl 
 that Dirkum e^^M ha<l n of anv lands \\hatsoever 
 
 in conseipienre of tin- horn!: on the contrary they have 
 been informed, &c. that /;;,'. ,D, well kfiowirv^ he UMS not 
 entitled to have a con did, dmii>^ hi- 
 
 vhole life time, a-V. i!,-ir faiher to < I \ in- 
 
 sist upon the act of parliament, <>i iis, 
 
 made in the lst year of the n-i^u d Kin- Jmnr.,- the f. 
 and pray the benefit of That a! :ieat 
 
 igth of fhne which hath elapned sime the -.< nii<.n ol 
 the l>oinl, and b> ' iii< per- 
 
 mce thereof, they are informed the complain.mi i~ n- '
 
 OF MARYLAND. 
 
 imthled to relief, and they rely on the said length of time 1806. 
 to bar the complainant of the relief prayed, and pray to 
 have the benefit thereof at the hearing, as fully as if they 
 had pleaded the same, and relied thereon by way of plea, &x. 
 Commissions were issued, and testimony taken thereun- 
 der, proving the hands writing of the witnesses t:> the bond, 
 who were dead. That a warrant of resurvey was taken out 
 on the 27th of November 1784, in the joint names tf Haffncr 
 and Dickson, at their request, to resurvey a tract of land 
 called Hrffncrs Fancy, but which was not executed. That 
 the complainant was brother and heir at law of Dickson. 
 That in the year 1784, on executing a commission to per- 
 petuate the bounds of the land called The Resurvey on 
 Ifavaner's Fancy, issued by and in the name of Frederick 
 Havaner, the complainant claimed a conveyance for his 
 share of the land of Haffiur, according to the bond which 
 lie exhibited to Hqffner, executed by him to Dickson; that 
 Haffiier acknowledged it, and said Dickson had paid all the 
 money that could injustice be demanded of him for his part 
 of the land. That Huffner, in stating objections to his con- 
 veying the land, said he had paid taxes on it. That as 
 there was some dispute about some part of the land, and as 
 it was intended by both to sell, it was finally agreed to wait 
 the result of that dispute. That at another time the complain- 
 ant called on Haffne.r for a conveyance of one half of the 
 land Ilaffner then lived on, who alleged he had paid taxes, 
 &c. as much as he thought the land was worth. That com- 
 plainant proposed to make him payment for all the money 
 he had advanced on the land, on his making a conveyance, 
 which Haffner refused to do. That Haffmr admitted that 
 the land he lived on was the land the complainant was 
 entitled to, if he was entitled to any, and is the same land 
 mentioned in the bond of conveyance, and that it is u tract 
 of land called TTie Resurvey of Havenear's Fancy. That 
 Haffner afterwards promised to settle the business in a 
 peaceable manner as soon as he settled some dispute about 
 the land with one Shehawn. 
 
 HAXSON, Chancellor, (July 19th, 1803.) This cause com- 
 ing on to be heard, was most ably debated hy the counsel 
 on each side. The Chancellor has never heard a cause 
 which appeared to him more difficult to decide, so as to se- 
 cure an affirmance by the court of appeals. However the 
 VOL. IT. 7
 
 50 CASES IN THE COl RT OF APPEALS 
 
 1806. Chancellor may differ in sentiment from that tribunal, he 
 has always considered it his duty to determine according 
 to their knoun opinion, lint in various causes, which have. 
 been carried 10 that tribunal, and in which the question 
 \vas, whether or not an agreement respecting land should 
 be enforced, they have decided, without laying down their 
 principles for the future government of the chancellor. In 
 the present instance, if he could divine how the court of 
 appeals would decide, lie would certainly decide according- 
 ly, as indeed he would in every other case. Sometime! 
 it has appeared to him that the court of appeals has con- 
 sidered it proper to enforce almost any agreement what- 
 ever. At other times it has appeared to him that they 
 have adopted a strictness beyond any tiling to be met with 
 in the books. 
 
 That the agreement which Dickson prays this court to 
 enforce, is uncertain, and that it has lain so long dormant, 
 as to have no title, agreeably to established principles, to 
 be enforced, has been contended on the part of the defen- 
 dants. It i> al-;> on their part contended, that there is no 
 sufficient proof of its having been performed on the part 
 of James Dickson, under whom the complainant claim*. 
 If the defendants are right, the complainant is not entitled 
 to relief. But the complainant denies every allegation, 
 and the parties are at issue upon them. 
 
 It has always been a practice of the Chancellor, and he 
 probably will always consider it right, where a cause is 
 doubtful to himself, where his decision, whatever it may 
 be, is in his own opinion just as likely to be reversed as to 
 be affirmed, and where he can propose such a compromise 
 as appears to him likely to coincide with the judgment of 
 honest sensible arbitrators, chosen by the parties, it has 
 always, in such cases, been his practice to propose that u 
 decree pa-- by consent, which shall at once end all con- 
 li o\ crey. 
 
 In the present case he proposes that the parties agree, 
 l>y writing here filed, that a decree pass to the following 
 effect: 1. That each party bear hi- o\\n costs. 2. That 
 the defendants convey to the complainant, two thirds of 
 the land in question; that is to say, two thirds of what the 
 complainant claims: or that the said land be sold by atrus- 
 i|p)inied by the Chancellor, who shall act under the 
 Chancellor's control, and report his sale, which shall not
 
 OF MARYLAND. 51 
 
 be valid until ratified by the Chancellor, and who shall re- 1806. 
 ceive a commission as in similai- cases; and that the nett 
 proceeds shall be divided between the complainant and the 
 defendants, two thirds to the complainant, .and the other 
 third to the defendants. 3. The complainant shall release 
 to the defendants all claim to profits on the land by him 
 claimed. 
 
 The Chancellor requests that a copy of this recommen- 
 dation be served by the complainant on the defendants, un- 
 less he, (the complainant,) disapproves of it. If he shall 
 declare in writing to the Chancellor his disapprobation, or 
 if the defendants, on being served, shall not, within one 
 calendar month after service, express their approbation, the 
 Chancellor will proceed to decree to the best of his judg- 
 ment. The complainant is requested to decide as early as 
 conveniently may be. 
 
 HANSON, Chancellor, (August 1st, 1803.) The com- 
 plainant having by his petition to the Chancellor, and filed 
 in the cause, agreed to waive all right to a decree to ac- 
 count for the rents and profits of the land in controversy, 
 reserving to himself all right and equity to an account of 
 those rents and profits in any future bill for an account for 
 the same, Decreed, that the defendants shall forthwith, by 
 a deed or deeds of bargain and sale, to be duly executed, 
 acknowledged and recorded, convey unto the complainant, 
 and his heirs, as tenant in common, ene undivided moiety 
 or half part of, in and to, all that tract of land m Frederick 
 county called The Resurvey on Ifavenear's Fancy, which 
 was originally granted unto Frederick Ifavenear, now de- 
 ceased, by patent bearing date on the 29th day of Septem- 
 ber 1762; provided always, and liberty is hereby reserved 
 unto the complainant, to file a new bill or bills against the 
 defendants for an account of the rents and profits of the 
 said land; and also reserving to the complainant all equity 
 which he now hath or may have to an account of the said 
 rents and profits; the Chancellor so decreeing, because the 
 complainant hath filed a writing to that purpose, and the 
 Chancellor, therefore, being excused from giving any opi- 
 nion on the subject of profits. Also decreed, that the de- 
 fendants and the complainant shall each bear his own costs 
 in this suit expended. .-.MM^ JL illM
 
 53 CASES IN THE torilT OF APPEALS 
 
 1806. In decreeing thus, the Chancellor flatters himself, that 
 
 he pursues the opinion of the court of appeals, or rather 
 the principle* which must he supposed lo have pm-minl 
 them in the la,te case of Browne vs. Browne, (1 //.?//. A,- 
 Johns. 430;,) and he takes the liberty of referring to his 
 own recommendation in ihis court tiled, which, as he was. 
 informed by the complainant's counsel, would be rejected 
 by the complainant. He repeat-, thai in decreeing, as he 
 does, he conceives that he pursues the principles wlm-h 
 governed the court of appeals in the recent cause of 
 Browne va. Browne, in which his decree was reversed. 
 He may be mistaken with respect to those princij.i 
 which indeed the court of appeals has not explained; but 
 he flatters himself that the important tribunal of the court 
 of appeals, on reflection, will perceive the propr'u -\\ of al- 
 ways explaining the grounds on which they reverse a de 
 cree, in order that the Chancellor may in all future causes 
 obey them, as his duty requires him to do. It is notori- 
 ous, that in many causes a variety of points of law and 
 equity are disputed between the parties; a simple affirm- 
 ance or reversal does not, cannot inform the Chancellor 
 on which of the points they have decided the cause. 
 
 From which decree the defendants appealed to this 
 court, ami the cause was argued before CHASE, Ch. J. lir- 
 CHANAX, and GANIT, J. 
 
 Johnson, (Attorney General.) for the appellant, con- 
 tended, 1. That it was not a matter of course to decree a 
 specific performance of a contract. He cited 2 P<> 
 Cont. 2i21, 233, 242. : lirn. 415. 2 Com. I)i<;. tit. Chan- 
 cery, (2 C. 1C.) Buxton vs. Lister, 3 .It It. 383. 2. That 
 the length of time, before the application for relief, ought 
 to prevent its being granted. He referred to 2 Potr. on 
 Cont. 260. 
 
 Key, for the appellee, in his argument cited Peake's 
 EridL 56, 57. 
 
 THE COURT OF APPEALS, Decreed, "that the decree of 
 the Chancellor, so far as the same relates to the cosi- in 
 the court of chancery, be and the same is hereby reversed; 
 and that the appellee recover against the appellant* the 
 costs by him expended in the court of chancery." Also
 
 OF MARYLAND. 
 
 decreed, "that the residue of the said decree be and the 1806. 
 same is hereby affirmed, except so far as the said decree 
 operates to compel the appellants to convey any interest 
 in the one hundred acres of land to be laid oft* for Daniel 
 Maddes, mentioned at the bottom of the condition of the 
 bond executed by Frederick Haffncr to James Dickxon, 
 dated the llth of May, 1764, and exhibited in the bill 
 filed in the cause; and as to the said one hundred acres of 
 land, the said decree is reversed." 
 
 "And for the purpose of carrying this decree into effect,-' 
 it was further decreed "-that the Chancellor pass a decree, 
 thereby directing the appellants forthwith, by a deed or 
 deeds of bargain and sale, to be duly executed, acknow- 
 ledged and recorded, to convey unto the appellee, and his 
 heirs, as tenant in common, one undivided moiety or half 
 part of, in and to, all that tract of land, lying in Frederick 
 county, called The Resurvcy on Havenear's Fancy, which 
 was originally granted unto Frederick Havenear, now de- 
 ceased, by patent, bearing date on the 29th day of Sep- 
 tember 1762, except one hundred acres of the said land, 
 stated on the bond of conveyance executed by the said 
 Frederick Haffncr to James Dickson, dated the 1 1 th of 
 May 1764, and exhibited in the bill in this cause, to be 
 laid oft* for Daniel Maddes; and the deed or deeds, to be 
 executed in pursuance of the said decree, to contain an 
 exception as to the said one hundred acres. And by the 
 said decree the Chancellor shall direct the said appellants, 
 to pay to the said appellee, the costs in the court of chan- 
 cery." And it was further decreed, "that the appellee re- 
 cover against the appellants the costs by him expended in 
 this court." 
 
 KEEFER vs. YOUNG. DECKMREH. 
 
 APPEAL from Frederick county court. An action of p ? ro1 
 
 , ndmititd to prove 
 
 dower was brought by the present appellant, who was the tlia " htll "" i K" ul - 
 
 e c Tt i T.T /. i ted to tliehusliaiid 
 
 wite ot Battle Keefer, deceased, "for the third part of 50 acres " f a "t-.aniant,ir 
 
 i j i i ' " the same land of 
 
 ot land, with the appurtenances, lying and being in Frede-*^^**"**- 
 rick county, consisting of part of a tract of land called (lo *e?" t *rn - 
 Ohio, and part of a tract of land called JFertimburgli, which S?"" 7 ^^ "32 
 she claims as her dower of the endowment of the said Bar- ^TdSSfctolS 
 th Keefer, her late husband," &c. The defendant plead- ?ft' 
 ed, 1st. That Earth Keefer was not *eized, &c. And 2<L fiT'SS 
 
 coi'.f, (ncte)
 
 VSES IN THE COrUT OF APPEALS 
 
 1806. That he was alive at the time of the impel rat ion of the 
 writ. Issue was joined to the fn>t plea; and replication 
 that Bartlc Keefer was not alive at the time, &c. as to the 
 other plea, and issue joined. 
 
 1. The demandant, at the trial, to prove that Burth- 
 Ktffer was stiy.ed ol the tract of land called n'rftimlwrh, 
 offered in evidence a patent of a tract of land called ll'u-- 
 tinburgh, granted to Bartel A'crfer on the* 17th of July 1765; 
 and proved that the patentee of ffPerfthfargA, entered upon 
 the land, and was seized thereof, as the law requires. She 
 then offered a patent for a tract of land called ff'hilcrback y 
 granted to George Hainan on the 13th of November 1759, 
 for 27 acres; and that the patentee entered upon the land, 
 and was seized thereof as the law requires. Also a deed 
 from George Herman, the patentee of JHiilerback^ to 
 Bartel Ceefer, dated the 20th of August 1765. And that 
 the grantee entered upon the land in the deed mentioned, 
 and was seized thereof as the law requires. And she of- 
 fered to prove that the grantee, in the deed last mentioned, 
 and the patentee in the patent of If ertinburgh, was the 
 same, and not divers or different persons; and that the 
 land called H'trlinburghm the patent, and the land called 
 U irllmburgh in the declaration mentioned, is the same 
 land, and not divers: and that George Haiman, the paten- 
 tee af the tract of land called 11 ift'unburgh, and the gran- 
 tee in the deed before referred to, is the same person, and 
 not divers. She also proved that Bartle Kcrfcr was seized 
 in his demesne as of fee of the said tract of land called 
 
 Irthurgh, and that he died seized thereof in the 
 1777, and before the impetration of the original writ in 
 this cause. She also proved that she was the wife of 
 J'urlfe Kerfer, lawfully accoupled in holy matrimony. She 
 then offered parol evidence to prove, that the tenant in 
 this action holds the land called Wirtimlnirgk, and the 
 part of Ohio, conveyed as aforesaid to Hurtle Keefer y 
 claiming the same under the heirs of Bartle Keeftr. The 
 defendant then prayed the opinion of the court, and their 
 direction to the jury, that the evidence on the part of the 
 demandant did not support the declaration, and that the 
 demandant could not recover under the same. Of which 
 opinion the county court, [Clagett, Ch. J. and Shriver, 
 A. J.] were, and so directed the jury. The demandant 
 cepted.
 
 OF MARYLAND. 55 
 
 2. The demandant then prayed the opinion of the court, 1806. 
 that on the issues joined in this cause, she hath shown 
 good title to recover her dower of the tract of land called 
 IVerlimburgh, in the declaration named; which opinion 
 the county court refused to give. The demandant except- 
 ed; and the verdicts and judgment being for the defendant, 
 she appealed to this court. 
 
 Shaaff and Brooke, for the appellant, cited 2 List. 286. 
 10 Coke, 117, Pilford's case. 
 
 Taney and F. S. Key, for the appellee. 
 
 THE COURT OF APPEALS reversed the judgment of the 
 County Court, disagreeing with that court in the opinions 
 expressed in both of the bills of exception. 
 
 PROCEDENDO 
 
 fa) Neither in this case, nor in that of Keefer vs. Marker, 
 were any damages laid in the declaration. The case of Keefer 
 rs. Marker was also an appeal from Frederick county conrt, in an 
 action of dower. To the declaration there was a general demurrer, 
 and joinder in demurrer, and the county court ruled the demur- 
 rer good, and gave judgment for the defendant; from which judg- 
 ment the demandant appealed to this court. And at this term the 
 court of appeals reversed the judgment, and entered a judgment 
 for the demandant tor dower arid cost;. 
 
 DANNISON vs. ROBINETT, et al. DECEMBER. 
 
 APPEAL from a decree of the Court of Chancery, dis- u^ er ^,f P e ., n 
 
 *f ' IlHVl np; ulr rfjUllH- 
 
 missing the bill of complaint of the present appellant. ^ d( 'jj'ta^osie?- 
 The bill states, that William Smith, one of the defendants, J^JT' / Tot 
 being seized in fee of a tract of land called Sugar Tree f Si^f^lSE 
 Camp, lying in Washington county, containing 100 acres, legal 'estate conf- 
 
 , . ^ . . , mencine aubse- 
 
 mortgaged the same to James Bryant in 1788, in conside- quenttotheequit- 
 ration of his having paid debts for him to the amount of 39. * 
 That Smith had three sons, named Christian, Philip and 
 Peter, (also defendants,) and he was indebted to Christian 
 in the sum of 109 13 10, as ascertained by a settlement 
 made between them on the 22d of May 1789. That lie 
 had no means to discharge the debt, except by a sale of his 
 equity of redemption in the land. That it was agreed be- 
 tween the father and his sons that the former should sell 
 to them the land, and a bond of conveyance was executed 
 for the purpose dated the 22d of May 1789. And it was 
 also agreed, that on the sons Philip and Peter, paying to
 
 CA.-r.* IN THE COURT OF APPEAL* 
 
 * :w tnir<ls of tne dcl)t due to him, they ware 
 
 equally to have the land. From the time of the contract, 
 to the vrar 17-.53. the three Mn- ]i< MC land. While 
 
 they were in p,sse>M..::. ,//, Another defen- 
 
 dant.) who had a knowledge of their equitable right, pur 
 chased the same land from //'/'///</?/< .V/m.'/;. and obtained 
 a deed, dated the Sih of October 1793. That Peter, one 
 of the sons, was induced b\ to believe his title 
 
 'ivalid, and he contracted with him for the same for 
 the sum of 15, for which a note was liiven, but the mo- 
 ney has never been paid. That Josht'ct fl'ilxon (another 
 defendant,) paid to James Hryant the money due on the 
 mortgage, and obtained an assignment of the same. That 
 Robinclt, ha\in;i obtained the deed, applied to t\vo n.iiui-,- 
 tratcs for a writ of forcible tntrtj ouid detainer, availing 
 himself of a period \\hon the a-ms could obtain no counsel, 
 und they were induced to believe they would be turned out 
 of po.-4fs.ii<jn, an-l th.'refure gave up the pos>i -<i<m. Tljat 
 them i \\iio attended \verc tho>c before whom tin- 
 
 deed was executed, and one of them the agent of Jtobi- 
 nrlt. That on the '29th of November 1703, Joshua and 
 Isaac Wilson, (also defendants,) in consideration of S20 
 paid to Christian Smith, obtained an assignment of his in- 
 terest in the bond of conveyance, and on the 19th of June 
 1794, for the like sum paid by Danniaon, (the complain- 
 ant,) reas*iu;nod the bond to him. That Peter Smith, on 
 the lt of March 1791, and Philip Smith, on the 18th of 
 April 1794, assigned their interests in the bond to the 
 complainant f..r the like consideration. That JJnbinett, 
 after he obtained the deed, paid to Joshua Jl i/vun the mo- 
 n^y he had paid on the moil_-ii;< % , and received an as-i^n 
 ment That the complainan; ! to Jlobi,iftt the 
 
 ,: il interest due on the mortgage, and tendered 
 and claimed a eoiiM-vanee, b;r 'iril linhirtill refu .(! to 
 the morn".-, in- e\ e'i'e the ileed. The object of 
 the bil >l)tain that conveyanee, and for Robindl t<> 
 
 \\ for th' pri.-':i-i of liie l.did from the time he took 
 po--" -ion of it. 
 
 T!c nnstrrrs of all t l .e defendant*, except Kobinrtt, ail- 
 nut the fa< ' ) ili'- '>ill. He ,l,n.<i not admit the 
 ' the sons, nor / cnrri/ti,,rr, or nix I. 
 f the same, if it diu exist, before the deed to him- 
 self.
 
 OF MARYLAND. 
 
 The complainant offered in evidence sundry depositions 1806. 
 of witnesses, taken under a commission issued from the * > ' 
 
 Daunison 
 
 Court of Chancery, to prove 1. The execution of the 
 
 J T r ^ Robmett 
 
 bond of conveyance. 2. The consideration, possession, 
 and notice to Roblnett. 3. The assignments executed by 
 the three sons of fVUlioan Smith to the complainant. 
 
 HANSON, Chancellor, (October term, 1803.) The an- 
 swer of the principal defendant, who is called on to con- 
 vey, &c. expressly denies knowledge of an equitable title 
 in the persons under whom the complainant claims, and 
 there is not testimony, which, according to the principles 
 of this court, is sufficient to refute the answer, taking the 
 whole of the testimony into consideration. Decreed, that 
 the bill be dismissed, but without costs. From which de- 
 cree the complainant appealed to this court. 
 
 The cause was argued in this court before CHASE, Ch.J. 
 TILGHMAN, BUCHANAN, NICHOLSON, and GANTTV J; 
 
 Johnson, (Attorney-General,) for the appellant, contend - 
 deQ i . That a prior equitable right to land will prevail 
 over a legal title acquired with a knowledge of that equi- 
 table right. 
 
 2. That where the person having the equitable interest 
 is in possession of the land, there, although in fact his 
 equitable interest is not known, still it will prevail', when 
 established, over the legal estate commencing subsequent 
 to the equitable interest. In other words, the possession 
 alone will exclude the legal right from being protected, on 
 the ground of being ignorant of the equitable right. He 
 cited 2 Fanbl. 155, (note m); Smith vs. Low, 1 tftk. 490; 
 and 1 Pow. on Coni. 302. 
 
 3. That the appellant may recover two thirds; that is, 
 the proportions of Christian and Philip, supposing the con- 
 duct of Peter may exclude him, or his assignee, from the 
 recovery of the other third. 
 
 4. That if Peter, at the time of the conveyance from 
 tfilliam Smith, was ignorant of his right, and that Robi- 
 nctt, or his agent, contributed to induce him to the belief 
 that he had no right, his one third may be recovered. 
 
 5. That the assignee of Christian alone is entitled to a 
 eonvcyance of the whole land, until Peter, or his assignee, 
 pays his portion of the debt. 
 
 VOL. it. 8
 
 r,s CASES IN THE COURT OF APPEALS 
 
 1806. Hat the appellant is entitled to an account of the 
 
 profits to sink the mortgage debt. He referred to Jarrclt 
 vs. JTcst, in this court. 
 
 y for the appellees. A decree for a specific exe- 
 cution of a contract is not ex debito justitise, but at tin- 
 discretion of the court. An agreement, to merit the in- 
 terposition of a court of equity in its favour, must be fair, 
 reasonable, bona fide^ certain in all its parts, mutual, u>- 
 ful, made upon a good or valuable consideration, not mere- 
 ly voluntary, free from fraud, &c. 2 Pow. on Cont. 221. 
 Unless a contract has all these ingredients, a court of equi- 
 ill not decree a specific performance. The Chancel- 
 lor decreed in this case, upon the ground that notice was 
 not sufficiently proved. And in support of the decree dis- 
 mi--ing the bill, it is contended 1. That there was no 
 contract proved. 2. If there was a contract, it was a vo- 
 luntary :md fraudulent one. 3. The bill has not charged 
 any thin-; like notice to Robinett. He referred to 1 Pow. 
 on drnt. .'in-:, liutchrr rs. Stapfly, 1 Vern. 365. Rorret 
 liomeserra, Bunb. Rep. 94. % Eq. Co. M. 17, 48. 
 
 THE COURT OF APPEALS affirmed the decree of the Court 
 of Chancery. 
 
 DECEMBER. AVoRTmxr.rox, <t /. vs. BICKNELL. 
 
 A executed a APPEAL from a decree of the Court of Chancery. Tlir 
 
 morgratr " M. "f * 
 
 rrai and prnonai ^\\\ filed bv the present appellees in 1801, stated that 
 
 property, to te- 
 cre the payment 
 
 of a turn in the f V* eturmt money, and it wai aftcrws rdt a|rreed between them. ilit the pertontl 
 property ihouW 15 irleatcd, on A' r. id., TMIIL- <m i'i.' mortiraicc that it un< a */"<" <l<-l>i- A afler- 
 ward* coneyi-d hii equity of rcil. i < . wlm. mi ih<- rrpn^entationi of n. of 
 
 the Mia dur oil the mor'ic < O.,.i,I.I nt !> n-li-nvil unlm C exeetiinl in him hit bund 
 
 tor that ram, did i-cr. MMI .it law wa bn.u ;'.. -i.,! pidgnMBt 
 
 rrndtrrd th>r< : On bi 1 in rhaneerr by C, an minnciioii %>< obtain- , ocrc.lmp at 
 
 law. The auditor a ordered totiate the raortirage debt ineontinental moayy, rrdarin^ it into pe- 
 n<- at I lur 1. milh iiiti-mt, and er lc; and on ueh tutement it appeared tbat Uie 
 
 debt wai orer paid. Decreed, that tin- injuncuuii br perpetual. 
 
 Harol rridenrr adroittrd to prore, tbat a debt it-cured by a mortpar,? wai continental money, 
 - J "-I a pMJt dctit. 
 
 Wkere there i% a mort|ra|^e, with a prnonal coTmant hy the raortRtfror that he will pay th mo- 
 ry, and beaiti^rt hi eqyity of rrdeapiimi. n h-- a competent witmrti for the aiiigitcc to prove 
 that the mow T loaned wat continental mouey? f/uere. 
 
 The aiurjwr of a moits^. i> niiil.-d to (he tame relief that the mortgagor would hare been en- 
 titled to ajratMt the manage*. 
 
 A aVerr* in favour of He nmfilainant, but vit/ttut nrtt, wai on appeal by the firfmHant, revrrted 
 t* ooata, and aatnawd at to the roi4ac; aad tcsncA ttut the curoplauiant ibould itxuTer lu Mt* 

 
 OF MARYLAND. 59 
 
 Richard Robinson, being seized in fee of several tracts of 1 8Q6. 
 land, on the 1st of May 1778, borrowed 170 of the then 
 
 J Worthington 
 
 current money, of B. T. B. Worthington, whose execu- 
 tors and representatives the appellants are, and executed a 
 mortgage of his said lands, and sundry slaves, &c. for the 
 payment of the said sum of money, with interest thereon, 
 on the 1st of September then next ensuing. That Robin- 
 son being about to leave the state, on the 6th of October 
 1782, applied to Worthington to release the personal pro- 
 perty mortgaged, as the land was amply sufficient for the 
 payment of the mortgage debt, which he refused to do un- 
 less Robinson would endorse on the mortgage the sum of 
 money then due in gold and silver, which he agreed to, 
 and the sum then stated to be due was 145 3 3 gold and 
 silver, current money. That on the 15th of October 1782, 
 Robinson assigned all his right, and equity of redemption 
 in the mortgaged premises, to Ninian Riggs. That Ro- 
 binson, after the mortgage, became indebted to the com- 
 plainant, Bicknell, for money actually paid and advanced. 
 That Robinson, in consideration thereof, and in conse- 
 quence of a contract between the complainant and Riggs, 
 agreed that the right of redemption in the mortgaged pre- 
 mises should be conveyed to the complainant, and a deed 
 was accordingly executed. That the complainant having ob- 
 tained the conveyance, and being interested in the payment 
 of the mortgage debt, was applied to by Worthington on the 
 subject, who represented to the complainant that there was 
 then due from Robinson to him, for principal and interest, 
 the sum of 171 6 0, on the 26th of February 1791, and 
 that the complainant could not and should not obtain the 
 benefit of the equity of redemption by a release of the 
 mortgage, unless he gave him his bond for that sum of mo- 
 neyj and that the complainant, confiding in the represen- 
 tations of Worthington, gave his bond accordingly. TI;at 
 Worthington is since dead, and J. Jforfon.g-/0,oneofthe 
 defendants, is his executor, who has brought an action at 
 law on the bond, and obtained a judgment. That the ex- 
 ecutor, and the other defendants, on the 25th of July 1795, 
 filed a bill against Robinson, Riggs, and the complainant, 
 for a sale or foreclosure of the squity of redemption of the 
 mortgaged premises. That by the answers to that bill, 
 and the evidence taken, it appears that the sum loaned by 
 Worthington to Robinson, and the mortgage taken, was to
 
 GO CASES IN THE COU11T OF APPEALS 
 
 1806. secure tin- payment of continental money, and that tin- <nu 
 due, calculating its worth by the scale of depreciation, 
 with legal interest, had been paid off or reduced to the sum 
 of 9 5 2 current money, on the 13th of December 1798. 
 That the executor of Jl'm-thinzfon is indebted to the com- 
 plainant in the sum of 13 17 6, current money, for arti- 
 cles charged in the account exhibited. Prayer fur a per- 
 petual injunction against execution U>um^ on tin- judg- 
 ment at law, and to compel a release of the mortgaged ^> - 
 raises, &c. 
 
 On the coming in of the answers, and on the testimony 
 taken in the cause, amongst which was that of Robinson, 
 the .iitditor was directed to state an account between the 
 parties. He made various statements, to which both par- 
 ties excepted, and by the Chancellor's order he made one, 
 wherein the money loaned to Robinson on the mortgage, 
 viz. 1 70 continental money, w -as charged against MickuLll 
 at 5 for 1, with the interest thereon, and after crediting 
 payments made at various time?, and the costs on the bill 
 filed by the executors, &.c. of Worlhington, which they had 
 dismissed, left a balance due to the complainant, ou the 1st 
 of March 1804, of 10 111, current money. 
 
 HANSON, Chancellor, (7th March, 1804,) dtcrrtd, that 
 the injunction issued be perpetual; and that each party pay 
 his own costs, &c. From this decree the defendants ap- 
 pealed to this court. 
 
 The causo was argued before CHASE, Ch. J. Been 
 and NICHOLSON, J. 
 
 h'i'lpely, for the appellants, contended, 1. That all the 
 -arv and proper parties are not before the court. He 
 referred to HiiuCa Prac. 2. 2 Eq. Ab. 170. Pre. in Clian. 
 83. 
 
 2. That BirkntH is not entitled to relief on account of 
 the transaction between Robintton and Itort/iinxtoti, be- 
 cause lie is no party to the contran. and has no privity of 
 interest, he not representing Rolri,, 
 
 ?>. That if Hicknrll has a prnitv of interest, and is en- 
 titled to Robinson's equity, yet there is noli-zal te*timon\ 
 in the causr to prove the facts alleged in the bill, hivauM- Ko 
 linson, the only person produced as a witness, is incompe
 
 OF MARYLAND. 
 
 tent on two grounds, 1st. He is interested, because there is a 1 807. 
 personal covenant iu his mortgage to Worthtngton, that he 
 will pay the money; and 2d. Because he is swearing to im- 
 peach the security he gave, and to invalidate his own act 
 and deed. He cited Gilb. L. E. 122. Heskfth vs. Brad- 
 dock, 3 Burr. 1856. Walton vs. Shelly, 1 T. 7?.296. Buck- 
 land vs. Tankard, 5 T. S. 578. Goodlittle vs. Bailey, 
 Cowp. 600. 1 Fonbl 188. 1 Han. Chan. 305, 613. 
 
 Johnson, (Attorney General,) for the appellee, referred 
 1o Piddock vs. Broivn, el. al. 3 P. Wins. 289. 2 Com. Dig. 
 96. 
 
 THE COURT OF APPEALS decreed, that so much of the 
 decree of the chancellor, as granted a perpetual injunction 
 on the judgment in the bill and proceedings mentioned, be 
 affirmed', and that that part of the said decree, by which 
 each party was to pay his own costs, be reversed-, and also 
 decreed, that the appellants pay to the appellee all the costs 
 incurred by him in the court of chancery, and in this 
 court. 
 
 POLUTT vs. PARSONS. JUNE, 'E. S.) 
 
 APPEAL from the General Court from a judgment of af- Property scquir- 
 
 , * e<l by an insolvent 
 
 firmance on an appeal to that court from Worcester count v! Itrbto L r% sfu ' r h( " 
 
 1 f J mis betn legally 
 
 court. The plaintiflf in the county court, (now appellee,) file eh ,^K d enT'i d a e w' 
 brought an action of trespass vi et armis against the defen- "f^}"^,,^.^* 
 dant, (the appellant,) for taking his goods and chattels, and ^,^' , 
 converting them, &c. By a statement of the facts submit- 1$ ^{^ 
 ted to the court for their opinion, it appears that Samuel J^cted d prior CO "J 
 Smyly obtained a judgment in the general court against it^t'T s ll ".fbl? II u 
 Parsons. After which judgment Parsons was, onthelSthty n ^ri*/ac*M, 
 of November 1801, regularly discharged under the act for ./<?'* havWim-- 
 the relief of insolvent debtors, passed in 1774, c/ii. 28. * y<*r art jby 
 That afterwards, in 1803, a writ of fieri facias was regu- 
 larly sued out upon the above mentioned judgment, and 
 was directed and delivered to Pollitt, then being sheriff of 
 Worcester county, who, in virtue of that writ, seized and 
 took into his possession the goods and chattels mentioned in 
 the declaration, and sold them at public sale. That the 
 said goods and chattels were acquired and possessed by 
 Parsons after his discharge, by his own industry, and not
 
 CAS !> I N THE COURT Ofr APPEALS 
 
 1807. k 5 * gift, deriae, beqntit, or in a course of d - 
 
 bution. Upon this statement, the county court, [Polk, 
 Ch. J. ra\e judgment for the plaintiff, and the defendant 
 appealed to the general court, where the cause was argued 
 at September terB 1804. The general court affirmed the 
 judgment of 'th county court, and said that property ac- 
 quired by an insolvent debtor, after he has been legallv 
 discharged under the insolvent law of 1774. cli. 28, other- 
 \\i-e than by "descent, gift, devise, bequest, or in a course 
 of distribution," is not liable for, or subject to, debts con- 
 tracted prior to his discharge; and if such property i- liable, 
 it cannot be affected by a fieri facia \, without a scire faci- 
 as having previously issued, if a year and a day have elaps- 
 ed. The appellant appealed to this court, and the cause 
 was argued by 
 
 J. Bayly, for the appellant, and by 
 Jf'ilson, for the appellee. 
 
 THE COURT OF APPEALS affirmed the judgment of af- 
 firmance. 
 
 JUXE, (E. S.) GREENE vs. MUSE, et at. Lessee. 
 
 Wfcne b Ji [ n i ; Arrr.Ai. from the Cloreral Court. The appellee, (the 
 
 laintift' in the court below.) brought an action of fjrctment 
 
 Md'tN.^rt'irf'ut'j ^ or a lr:lc ^ ' ' an< ' ( 'ailed Widow's Purchase, lying in Dor- 
 
 r county, containing 1000 acres. A case \vas B< 
 'or the court's opinion, which raised the <|uestion, how far 
 ^4^ J2rt it '' |K i';',!!i the arknovvii-d-ment, as made by a feme covert grantor t.> 
 thirti^*^.' Jid a deed of bar^ajn and sale, was effectual to pass her inte- 
 i^nn'nlniy.H D tlie land conveyed? It was a conveyance from Jo~ 
 
 witho'iTt" "u'ni ic' seph Diiflin, and Eleanor his wife, to Thoma* Bonrkf, uu- 
 Uy ih." . !er whom the defendant in the court below claimed, for 
 
 fr' part of the tract of land, for which the ejectment. 
 
 nrr. 
 
 nW hiving SI.MI- 
 
 . ck- 
 
 The acknouled-ment i* as follows, to wit: 
 
 "eord'ii.^"I'" r th' Dorchfslcf to wit: He it remembered, that on the 
 
 , '-"utr'iv day and vear above written, [1st of August 1778, the date 
 Z fc. n wMkrU of the dee(l, j personally appeared before us, the si' 1 
 * yc iv frme two of the justii't^ of the peace for the county of Dorrhis- 
 /<r, the above named Joseph Muffin, and Elcnor his wife,
 
 OF MARYLAND. 
 
 and acknowledged the within deed, and all and singular 1 807. 
 the within lands and tenements in the within deed con- ( ^ v ""~ 
 
 ... r Partridge 
 
 tained, to be the right, title, interest and estate, or the v 
 
 - Partridge 
 
 uithin named Tlwmas Bourke, his heirs and assigns, for 
 ever, agreeable to the true intent and meaning of the with- 
 in deed; the same Elenor, wife of the same Joseph Baffin, 
 being first privately examined by us separate and part from 
 her husband, whether she did the same freely, voluntarily, 
 and of her own accord, without being induced thereto by 
 the ill usage or threats of her said husband, or for fear of 
 his displeasure, and having assured us she acknowledged 
 the said deed freely and voluntarily, according to the act 
 of assembly in such case lately made and provided," &c. 
 Which was signed by the justices. The general court at 
 April term 1805, gave judgment on the case stated for the 
 plaintiff', and the defendant appealed to this court, where 
 the cause was argued by 
 
 Bullitt and /. Bayly, for the appellant, and by 
 Martin and W. B. Martin, for the appellee. 
 
 THE COURT of APPEALS affirmed the judgment of the 
 General Court. 
 
 PARTRIDGE'S Adm'x vs. PARTRIDGE'S Adm'x. JUNE, (E. S.) 
 APPEAL from Dorchester county court. The appellant, A devise of land* 
 
 , t t . . f r 'to a creditor doe 
 
 (the administratrix of Jonathan Partfadgej brought an ac- not extinguish 
 
 . . debt or ciaim 
 
 tion of assumpsit against the appellee, (the administratrix wI V leh he J' as t 
 of Isaac Partridge;) and at the trial of the cause, estab- 
 lished by testimony, that Isaac, in his life-time, was in- 
 debted to Jonathan, in his life-time, in a certain sum of 
 money. The defendant then offered in evidence the will 
 of the said Isaac, dated the IS of December 1801, where- 
 by he devised to his father, Jonathan, (the plaintiff's intes- 
 tate,) and his heirs, two tracts of land containing about 206 
 acres, and also the use of all his other lands for life. He 
 also bequeathed to his said father, all his personal estate, 
 and appointed him executor of his will. It was admitted, 
 that the whole personal estate of Isaac was not more than 
 sufficient to pay ten shillings in the pound, and that Jona- 
 than had no benefit from the bequest of the personal es- 
 tate mentioned in the willj but that the same was expend-
 
 CASES IN Tin-: conn- M APPEALS 
 
 1807. ed ly the payment of the debts of Isaac. That 
 
 than accepted and held the lauds devised t.) liiiu by th>. 
 will, under and in virtue thereof, which was of great i-i 
 value than the debt chained by the plaintiff. The dt:fen 
 th'.nt then prayed the court to direct tlie jury, that the debt 
 or sum of money claimed by the plaiiitift', was extinguished 
 by the said will, and ought not to be recovered. Which 
 prayer the court, [/WA-, Ch. J. Done and Robins, A. J.] 
 granted, and were of opinion that the debt or sum of mo- 
 ney claimed by the plaintiff was extinguished by the will. 
 and ought not to be recovered, and did accordingly so di 
 rect the jury. The plaintiff excepted; and the \erdictand 
 pi. lament beiny against him, he appealed to this court, 
 where the cause was argued by 
 
 J. ttuylu, for the appellant and by 
 //'. Ii, . Marl in, fur the appellee. 
 
 TIIK COUUTOF APPEALS Reversed the judgment of the 
 county court, and awarded a ProceJetido. 
 
 JUNK (|tf S.) If vMrso.v vs. EDEI.EX. 
 
 A contract for APPEAL from the Court of Chancery. The bill of the 
 
 tV- piir-hni* of * 
 
 .i, /* complainant, (the now appellee,) stated, that in .September 
 
 '..r rnlu- 
 
 ? l V e X' i ''^iii'!iw!f' l ~ 9 -* ne Purchased a part of a tract (if land, 1 ym'j; Tn 
 Hitrrni m the p r i nce George's county, called Sloney ffarbout, contain- 
 
 i !! fiom Inr J * / 
 
 r'oTr ". in % ^ );5 acres, from a certain Ihnoiii If. fl'mfr. at the price 
 IbnVy ' m'.t plaa of ' i'5 per acre; and on the 3-4th of December !T9r, Hade 
 wh'^iV'n^y ? vc ' m fi'H ant ' absolute |x>ssession thereof, and that he 
 J.^'.'-H.'.'ii-.i'io'H has ever since continued in |.o->">sion. That at the time 
 di^!t'**.ii- of the purchase of the Ian.!, HWe was indebted to tin- 
 oL bT Ir'" '"^complainant on bond, with Tliomun Mumlefl iii-, >un-fy, ii, 
 wkinr"IhV"cn- the quantity of 15,G().>lbs. of net tobacco, to be p;iil at 
 
 trriid wirmnit 
 
 fiiw he nnce of G5 shillings per hundred, the whole amount- 
 
 MOt 11,-fr.t (lie 
 
 riiui>i- i'.t.-r..t inj to 482 current mnnev, and it \\ ;i^ then agreed tliat 
 
 tfctHSCfVMM '.Mor 
 
 'i III' tne * M)ni ' ho*M be i ii port paymAt of the land 
 
 rf """ at ^ 1C sa "' timonnU and the same was acconliiijilv -ivt-ii up 
 '.'"C' l -mn' to H'f'lf. That the complainant continued in possession of 
 
 . 
 
 "".! ill*- land, and used and cultivated it, and ha\ing j)aid up the 
 't f "n^'.hTfc wTiole purchase money, on hp 1-:th uf Novcn.t.er 1798, ob- 
 
 nvevance for (he -:m\o. That after he had pur- 
 ta_o, 
 
 10 rxtwfy hit debt, by por.uinr tin* pMMr m-ant.
 
 VOL. II. 
 
 
 OF MARYLAND. 65 
 
 chased the land from Wade, and had paid the amount of 1807. 
 the bond in manner aforesaid, and had been in possession, 
 and had used the land from the month of December 1797 
 to May 1798, a certain Bryan Hampson obtained three 
 judgments against ffade&t May term 1798, in the gene- 
 ral court, on which judgments several writs of fieri facias 
 have issued returnable to the next general court at May 
 term 1800, and have been laid on the land of the complain- 
 ant so as aforesaid bought and paid for, and there will be an 
 immediate sale thereof, unless prevented by this court. 
 That at the time tfce complainant purchased and paid for 
 the land as aforesaid, he never heard of the judgments 
 against Wade, and was wholly ignorant of the same, until 
 the writs of fieri facias were about to be laid on the land. 
 That he is advised that, having bought the land, and hav- 
 ing been in possession thereof as aforesaid, and having 
 paid to the amount aforesaid, before any judgment was ob- 
 tained against Wade, he is entitled to the aid of this court 
 to secure him in his title to the land. Prayer for an in- 
 junction to enjoin proceedings on the judgments and exe- 
 cutions, and for other relief, &c. An injunction accord- 
 ingly issued. , 
 
 On coming in of the t'efendant's answer, and testimony 
 taken under a commission, the case was submitted. 
 
 HANSON, Chancellor, (October term 1803.) Whether 
 or not the defendant would have had any ground of relief 
 in case he had filed a bill against Edelen and Wade, the 
 Chancellor neither will, nor ought to, nor can positively 
 determine. Perhaps the whole of the circumstances of the 
 case may not be before the court. However, as the Chan- 
 cellor cannot doubt that the complainant, at the time when 
 the judgments in the bill mentioned against Wade, had a 
 clear equitable interest in the land mentioned, which lias 
 since been conveyed to him, he conceives that it is the du- 
 ty of this court to protect the said interest Decreed, that 
 the injunction, in this case issued, be perpetual, and that 
 each party pay his own costs. From which decree the de- 
 fendant appealed to this court. 
 
 The cause was argued in this court before CHASE,C!I. J. 
 N, and NICHOLSOX, J
 
 06 CASKS IN TIIK coniT OK 
 
 18 ( '/' Buchanan, IW the appellant. The mieMkm i-, \\lirilu-; 
 
 or uota nun I'.tuhaMii.; Kind under a parol agreement >hall 
 be protected tgpinst a judgment creditor, under a judgment 
 rendered against, the vendor ^iil).. i |(n-ii( in tlu- >ale and prior 
 to any conveyance being made for tlu- land? He referred 
 to Sorrel vs. Carpenter, 2 P. II ins. 48-2. '2 Fonbl. 157. 
 Jf . 71ie Earl of Scarborough, 3 .tf/A*. 392. 
 
 Chiirchil r. Grove, 1 CAa/i. Co, 35. Booty vs. Skipwith, 
 Ibid 201. Peaek vs. Hirti-inlsca, 10 J/oc/. 468. jpt/ic/t 
 r tl'inchtlsca, 1 / J . Jfww. i77. 2 Pow.on Con/.58,o-4 
 I, Orrf, 1 ,/?/*. 571. Marlon vs. Smith, "2 /'. 
 Jf M. 199. Twin-ilk t*. AuiWi, 3 / J . WMJ*. 307. // 
 r*. //'/ . 1 .M. 384. 
 
 Shaaff argued for the appellee. 
 
 ( H ASF., Oh. J. delivered the opinion of the court. In 
 
 this case it appears iliat a considerable part of the purchase 
 
 money was j>ail, and possession given of the land, prior 
 
 to the obter.tioii of the judgment:* by llainpson against 
 
 n-,,,1,. 
 
 A contract for land, bona fide made for a valuable ron- 
 mderation, vests the ecjuitable interest in the vendee from 
 the time of the execution of the contract, althoujrh the mo- 
 ney is not paid at that time. When the money is paid ac- 
 cording to the terms of the contract, the vendee is entitled 
 to a coiwyaiuT, and to a decree in chancery for a specific 
 
 Mtion of the contract, if such conveyance is refu-ed 
 A judgment obtained by a third person against the ven- 
 dor, mcsne the making the contract and the payment of 
 OK- money, cannot defeat or impair the equitable iii 
 Dm*, acquired, nor is it a lieu on the land to affect the right 
 
 >jr triitil. 
 
 \ juduiiu in i', a lien on the land of the debtor, and at- 
 
 tathe- on it a^ a fund lor its payment; but the legal v-tate 
 
 in the land is not vested in the judgment m-ditoi, although 
 
 he can convert it into money, to satisfy his debt, by pur- 
 
 ^ the proper in 
 
 DECREE AFFIRMED.
 
 OF MARYLAND, 67 
 
 COVER vs. CHRISTIE anil JAY. 1S07. 
 
 JUNE. 
 
 APPEAL from the Court of Chancery. The bill of the 
 complainants, Christie and Jay, stated, that on the 20th 
 of February 1797, Smnuel Willelts, for full value receiv- 
 ed, executed a single bill to Gover, the defendant, promis- 
 ing to pay to him, or order, 233, on or before the 1st 
 April 1798. That in consideration of a debt due from jg* 
 Goter to them, he on the llth of May 1797, assigned the -for K 
 said single bill to the complainants. That suit was brttogfctby V Bumt.*, 
 
 ~ ._, compel payment 
 
 on the bill against nil/etts, in the name or Gover, lor tne of the bond a?- 
 
 , . i i 'igueil Decreed, 
 
 use of the complainants. 1 hat a judgment was obtained that the court of 
 
 . . chancery has no 
 
 at May term 1 800, and an execution issued against (hejwwiMMii; that 
 
 rf the assignment 
 
 property of fVilletts. which was returned nulla bona toOc- was an extinguish- 
 
 * meat ef the origi- 
 
 tober term following. That no payt of the debt was ever n i a a 'i,tant' was* n"ot 
 paid, except, 10 paid on the 30th of September 1797. ^1- d at to ia ei or 
 That Wilktts has become insolvent, and released by the in- | ne tqu s ; i Kn m d en[ 
 solvent law. That the complainants have frequently called %$? oT'tiTe 
 on Gover, the assignor, and requested payment, which he has confpia'inanf' had 
 refused. That the assignment of the single bill was not on U the ^ri^ata 
 
 , _ , r ui 11 contract, there bc- 
 
 made in pursuance ot the act ot assembly, so as to enable in K o c\rcnm- 
 
 ^j . . 1,1 ', /-, stances disclosed 
 
 the complainants to proceed at law against Gover, the as-imuebiiitomak-e 
 
 , it necessary fin- 
 
 signer. Prayer, for a decree to compel Gover to pay the him to rort to 
 
 court of equity. 
 
 amount of the single bill, (deducting the safl payment,) 
 with interest, &c. and for other relief, &c. The answer 
 of Gover stated, that he assigned the single bill ofTPJilletts, 
 and two other bonds to him from other persons, to the 
 complainants, in full satisfaction of the debt which he 
 owed to them, and that they agreed to take said assignments 
 in full satisfaction, without having any further or after re- 
 cdtirse to him for the debt due from htm to them, or for or on 
 account of the assigned bill and bonds, and upon that con- 
 dition the assignments were made, aiid receipt in full was 
 given for the debt due by him to them. That when the 
 assignments were made, the several obligors were in sol- 
 vent circumstances, and good credit; and that the amounts 
 due on the two bonds have been received by the complai- 
 nants, and they might have received the amount due on 
 the single bill from fVillctls, if due and reasonable dili- 
 gence had been used. The complainants entered a gene- 
 ral replication to the answer of the defendant, and a com- 
 mission issued to take testimony. By the testimony it 
 was proved, that Willelts was not solvent and in circum-
 
 08 CASKS IX TITK ( OMIT OF APPEALS- 
 
 180r. Stances to pay \\\- debt-; io an% amount in either of the 
 * > ' in- 1*00. 'I'],-- ;ns Mib 
 
 %)hted, the follow.; was made by, 
 
 c, 
 
 II \XSON, Chancellor, (December term 180.1.) The cause 
 being ready for decision, the bill, answer and exhibits, 
 evidence, and all other proceeding, were by the Chancel- 
 lor carefully read ami !, and it aj'|n-aiin_ 
 
 and equitable that the complainants should not be exrlud 
 ed from recovering the balance of the debt due from the 
 defendant to them, on account of having received the as- 
 signment of a bond from on H7/A//.S to ihe com- 
 
 plainants, inasmuch as the money ne\er \\a- rei ened, and 
 especially, as appears from the evidence in the caue, that 
 he was insolvent at the time the defendai d the 
 
 same to the complainant Decreed, that the defendant pay 
 to the complainants the sum of (216 7 9, current money. 
 stated by the auditor of the court, under the Chancellor*-; 
 order, to be due, with interest thereon until paid, together 
 with costs of suit. From which decree the defendant ap- 
 pealed to this court. 
 
 The cause was argued before CHASE, Ch. J. TILOH 
 NICHOLSON, and GANTT, J. 
 
 Shaaff and Harper, for the appellant, contended, that the 
 complainant !.:;:! adeq.ia'e n iav. and could not 
 
 apjily to a court of equity for n -lief. They referred tn 
 'n. 1 I'tirr. Sf Johns. 370. Forbes vs. Per- 
 rtc, I bib. 109. Winchexltr, ft ul. r.v. Brooke, an 
 
 <.vo/i, (Attorney Geneiv.l., t- r the appellee-, 
 ,. 10, 1 1. ') . c/i. 23,*. 9, 10. i 
 
 vs. / 
 
 1 \SK, Ch. J. delivered the opinion of the court. The 
 
 of opinion, that the coiut of eliaim-iy I. 
 liction in this case. 
 
 If the a>siuniuent was an extinguuhmenl of tl;e origi- 
 nal debt, the - nits are not entitled to icliel, eithn 
 
 at law or in equity. 
 
 If the assignment was not an inn; nt of the 
 
 <ual debt, and the court arc of that opinion on cun-ide- 
 
 ration of the bill, answer and proof, tlie complainant- had
 
 OF MARYLAND. 03 
 
 their remedy at law on the original contract, there being 
 no circumstances disclosed in the bill to make it necessary 
 for them to resort to a court of equity. 
 
 DECTIEE REVERSED. 
 
 LAIDLER 7'-?. YOLNG'S Lessee. JVXE. 
 
 APPEAL from the General Court. The appellee brought A, bv his viii, 
 un action of ejectment in that court to recover a tract of -i K a4 a^d'^-ii 
 
 to my son II, a 
 
 land called Let's Purchase* otherwise called Laidlers tract of Hnd, s-c. 
 
 to him and J-jj 
 
 jFcrni, lyinc in Charles county. I he defendant, (now ap- ht -<' 8 ' f -'-. n<i 
 
 'I'gl V & / ^ l HI c.ise he dies 
 
 Dellatit.) took general defence. At the trial at Way term without hem, to 
 
 * * ' niy >on .', and tin* 
 
 1804, the plaintiff offered in evidence a grant for Zee's ^."j his b ^ 
 Purchase, dated the 2d of May 1664, to John Lee; also the ^d 1 ^^ 
 >vill of Richard Lee, the heir of John, dated the 3d of ^' R ' lhe d ^ 
 March 1714, devising the land to his son Philip Lee; also NoYem^r hl ' n m", f 
 the will of Philip Lee, dated the 20th of March 1745, dcvis- ^\,V- 
 ing the land to George Lee; also a deed from George Let gcthrr, or conic? 
 to John Laidler, dated the 10th of Oct'rl760, and the v,;H qSaiiL-d""'^^ 
 
 ,- . ,, . , i- -r> i A coiiui.u,. dc edof 
 
 of JohnLaidlcr dated the Istot February 17/ 1, devisiog fts barpa.n ami sale 
 follows, viz. '*! give and devise to my son Robert L,\ /and 
 
 all that tract of land called Lee's Purchase, to him asai his" 1 ""* sn-nu- L -. 
 
 Ii a l.,.,iud in- 
 
 heirs forever, together with the lands thereto adjoining: trl ^ > c > veyed 
 
 . *' bj Wit.!.:.l;l :l: lull, 
 
 and in case he dies without heirs, to my son John Laidler, li ''"" " !l; '^i" 1 '-- 
 
 ' ' t:on o; (lit ;M:- 
 
 and the heirs of his body lawfully begotten." He also ^e' ! " n .-, 1 ' n l ',?til}f 
 offered in evidence and proved, that after the death of Jofn> ^''^i'^'' 
 Laidler, the testator, Robert, his son and devisee, 
 
 and was seized of the lands devised to him by the will; aihi ;. w ftj 
 
 that Robert, in his life- time, executed the following lease passMic'fsTatefor 
 to the lessor of the plaintiff, viz. vi Know all men by these Ivp,*^"!"'* 
 presents, that I, Robert Laidler, of Charles county, in theby^tenliiiMiTtail 
 state of Maryland, for and in consideration of the annual taiV'foi a i: 
 
 ., . time. If lhe niii- 
 
 sum or live pounds currency, paying my-iust debts, and "ty is tui>,, xhe 
 
 . rj .' /J . old estate is rr*i- 
 
 maintaining my sister Elizabeth Laidler, have farmed and v ' 
 
 J An .-'tale tail 
 
 to rent let unto Joseph Ycunsr. the plantation whereon Iwnuwtbe d^i .1 
 
 1 isuiici- iii:- act ot 
 
 now live, known by the name of Laidlers Ferry, for the iT '- 2 ' c/ ' 2j 
 
 7 * The intention 
 
 term of seven years from the date hereof. As witness my a " d , H'a'S of 
 
 V the legislature are 
 
 tu be coiiecied 
 from the law itself, and they are not to be restrained by any Iliing in the preambli .
 
 CASES IN THE COURT OK APPEALS 
 
 1807. hand and seal this eighth day of June .seventeen In; 
 and ninety -nine. 
 
 Hobtrt Laitilcr (*e*l.) 
 Witness, 
 Idmn Jt,.- 
 Slr/j/icn Moort. 
 John .\li/nii: 
 
 That Robert /xnYMpr died after the execution of the l< 
 intestate, and without issue, lea\iii the defendant hi> hri- 
 at law. The defendant then prayed the opinion of thc- 
 court, and their direction to the jurv, that under the lease 
 so executed, the plaintift* was not entitled to recoM-r. 
 
 Key, Mason, and J. B. Ducket I, for the defendant, con- 
 fended, that the lease executed for -"M-n year-, by Robert 
 TMidlcr the tenant in tail, did not operate under the act of 
 November 1782, ch 23, to bar the estate tail created by the 
 vill of John Laitlfcr, and that upon the death of Robert 
 
 "> r, ihe land descended to the defendant They 
 and relied on the statutes, rf (font*, 3'2 llm. \ III. Jt CS. 
 13 Edw. I, ch. 1. 4 Bac. Al). tit. LtaSes, (D.) 
 
 (Attorney-General,) Johnscn, ^ '/'. tturhanan y 
 for the plaintiff. rdVi icil to the same statui 1 Blk. 
 
 Com. 119. The acts of June 1773, ch 1: Nov. 1782, ch 23; 
 and 1780, ch 4.~>. 7' /.-' tt ".r rv. /'r^//, 1 Ilurr. c\- 
 facet's Lessee vs. Funraoif ft al. "2 Uurr. \ 
 
 CHNSK, Ch. J. (a). The Court are of opinion, that u 
 the act of assembly of November 178-2, ch. C3, a tenant 
 in tail may defeat the estate tail altogether, or convey on- 
 ly a limited or qualified estate; the remainder, \vhau-vci it 
 inav he, will, in this last case, descend. But if he in 
 tends to change the estate tail to a fee simple, then a con- 
 :,ce and irron\eyance to himself are necessary. 15u! 
 if he disposes of the estate, a common deed of bargain and 
 Bale will operate to omey the estate, and vest a lei- 
 j.lr iu the gran 
 
 If a limited interest is conveyed) upon the \|. M um ot' 
 the particular int-ie-t, the tenant iu tail again takes the 
 estate tail a originally hrld. 
 
 (a) Pone nd Sprigg, 4. concurred.
 
 case was argued before TILGHMAX, NICHOLSON, 
 and GANTT, J. by 
 
 Key, for the appellant, and by 
 
 Johnson, (Attorney General,) and T. Buchanan, for the 
 
 OF MARYLAND. 71 
 
 The Court have no doubt but that a lease will have the 1807. 
 <efiect to pass the estate, for the term of years therein ex- 
 pressed; for if a tenant in fee simple can lease, a tenant in 
 tail may also. 
 
 It was contended, in the case of Paccfs Lessee vs. For- 
 woodet al. that an estate tail might, under the act of 1782, 
 be devised by last will and testament. But the court said 
 it could not; for they considered the tenant in tail, and the 
 heir, in the situation of joint tenants, and that the estate, 
 upon the death of the tenant in tail, survived to the heir, 
 and as the will would not take effect until after the death 
 of the tenant in tail, the right of the heir, by such death, 
 had already vested. 
 
 It has been said, that a mortgage executed by the te- 
 nant in tail conveyed the interest. It is not so. When the 
 money is paid, the old estate is again revived, and the 
 mortgage only defeats the estate tail for a limited time. 
 
 The intention and meaning of the legislature are to be 
 collected from the law itself, and they are not to be res- 
 trained by any tiling in the preamble. 
 
 Upon the whole, the court are of opinion, that the lease 
 in this case is good and valid in law to pass and transfer 
 the interest in the land to the lessee for the term of years 
 therein mentioned, and when the term of years expires, 
 the remainder -man will take the estate under the will! 
 
 The defendant excepted. Verdict and judgment for the 
 plaintiff, and the defendant appealed to this court. 
 
 THE COURT ? APPEALS affirmed the judgment of the 
 General Court
 
 \ THE COURT OF U 
 
 lanr. M- -'MINI'S I.r- 
 
 Jt 
 
 VHT.U. from the Genera) Court. 'I'liis was an action ol 
 
 WKIdcrry fjcctUHMlt t>ni'' ;ht ti) IVCu' I'.Nof land, \ I 
 
 smiih Harbour, ami '/ . 1 vinu in Baltimore coun- 
 
 Ifth<-d*n*.nt , , I 
 
 !uni>ir the |.. n i v . 1 he del t'luluMt, (now appellant.) pleaded Hie general 
 
 *icjr u f / * * 
 
 -sue. The plaintiff at the trial, at May term 18O4, <>f- 
 
 :-ed in evidence, t: ' -i^ti,; in his life-time, 
 
 .1 of four parts or parcels of the two tracts of 
 
 i.uid for which the ejectment was brought, and being justly 
 
 i! 1 ,!,!^'. indebted to James Franklin, in order to secure to him pay- 
 111 ' 1 ""incut of the money due, did. mi the 9th of M 
 
 a^c to him of the said , I land, U> 
 
 H riihi-r K nerl. . . . - ., . ., ,,, ,. 
 
 I ii|)on pavi-itMit ol the money due, on the ( t.t ol 
 'lay 1789. He al>o ^ave in (\idt-jn.c, that no part of the 
 
 vh.thernr roi moiu .y |, as i )0cil paid; and that the lessor of die plaintill' i< 
 
 . 
 a) ! ;.ii'l administratrix of Franklin, \\lio died be- 
 
 .re (lie in.-Mulion of thi^. Milt. Tin.- drU-iuIant then of- 
 
 ,--d in evidence, tliat -Sfi/df was M-i'/.ed ami possessed of 
 
 ;". K ib uu d '.bl.a tlie saitl luur parcels of land before and on the s4ili of 
 
 SJ^kiJjSJt'Mv 1^85. lie then offered in evidence a record of a 
 
 V'.!t 7 v\'. judgment obtained by Tlwinas Usher againt SUgar, in 
 
 ! " l i the general court in May 1T85, which judgment wa> >i-n- 
 
 KCC M< tke k- ed on the i24th of that month. And evidence that I 
 
 !' n <-"^ afterwards departed this life on the 1st of January 1786, 
 th<.' bad*. haying bv his will appointed T. Usher* J. DonalJ.-'Hi. and 
 
 Itni h-li*J "i'.i><- _ - , . _. 
 
 .miiaiwfl-tii'i'i..- \ Jo/Histon. his executors. He also offered in evidence 
 
 <.|V in part,' to 
 
 ith /wr/ certain records and pr < general court, 
 
 rMb/V^fl^'ud s ' lowui g lnat tne said executors at; in tiie 5th of 
 
 \pril 1786, sued out a writ of scire facias on the said 
 
 , 'id^inent, the same beiiu tiien due and unsatisfied; and 
 
 'iat a fiat w.is tliereon ^nti-red ;:t October term 1787. 
 
 Tliat a writ of Jieri facia.i issued on the la --t mcniiuiird 
 
 judgment, directed t-> ',i-rilf nf Jiliimore coun- 
 
 n the ITih of July 1788, returnable to tin- O 
 
 :, when it i by the said sheriff, 
 
 thereon endorsed, "made as per schedule, and muaiiis i* 
 the sheriff's hands for want of buyr.-." \\liidi ..ml 
 dule stated, that "four acres of land ric n /ia/thnorc- 
 town, and adjoining the property or lands of Gen, -.'< Ln.,\ 
 with all the improv ereon,"' were valued by four 
 
 '. and '-about '27 acres of 
 laud, more or \v** t part of Cole's Harbour or 7
 
 OF MARYLAND. 73 
 
 Range, and part of Mounteney's Neck, lying to the north 1807. 
 side of Pitt-street, near Baltimore-town," were valued at 
 12 per acre; and "about 2j 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 TodcPs 
 Range, containing 1 1 acres, more or less, leased to Peter 
 Sheppcrd 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 of- 
 fered 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 llth of May 1792, for a valuable 
 consideration to him paid by the defendant, did duly exe- 
 cute 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. 
 
 Martin, (Attorney -General,) and Harper, for the plain- 
 tiff, in their arguments cited Arnott and Copper vs. Nicholls, 
 1 Harr. $ Johns. 471. and Co. Lilt. 1. 
 
 Key, Purviance and S. Chase, jr. for the defendant, in 
 iheir arguments cited 1 Blk. Com. 91, 328. Cunningham's 
 
 vol.. n. 10
 
 74 CASES IN TIIK rkT OF APPEALS 
 
 1807. L. D. tit. Terr Jacob's L. D. tit. Terrettnunl. 
 
 ^63, 507. > Hur. J/-. tit. Execution, 363. Com. 
 xii. / . (1) 1.) 2Blk. Corn. 91. 
 
 CHAM. I'h. J.fr/^. In the case of Arnott and Copper vs 
 Xich'tlts, the court considered they iiiiirlit on motion de- 
 cide whether or not Goldsborough was a bonafule pur- 
 chaser, and it turned out that he was a fair purchaser. The 
 fieri f nuns in that case had been taken out after the aliena- 
 tion of the iaud, and the court thought the alienee 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 were 
 oilier alienees, or other real estate, the whole should con- 
 tribute. That the alienee, having notice, might come in 
 and pay the judgment so as to exonerate the land; and if 
 other property than that aliened, the fieri faciat 
 bhould be levied of that, before recourse should be had to 
 the land aliened. 
 
 The court consider the case of .Qrnott 4" Copper vs , 
 Xic/iolLi, 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 mortga- 
 gee, to be defeated only upon payment of the mortgage 
 money; or in other words, the mortgagee has a legal title 
 in the land, dcfcasable at law, by redemption at the day, 
 indefeasable at law afterwards. 
 
 The mortgagee can bring his ejectment, but the mortga- 
 gor may come in and pay the money, and exonerate the 
 land. 
 
 At fhe time the judgment was rendered on the scire fa- 
 was terretenant of the land, and the 
 ncire fucitut ought to have issued against him to giv e .him 
 an n|i|:'i; iiiniiy to plrad a* ti-rrctenant. 
 
 A A ttd tonrti-nants is either general or spe- 
 
 cial; ih.ir is, either against the terretenants generally, with- 
 out naming them, or specially against them by name. In 
 the I'..; :-,! h ir.ay be shown there are others, and in the 
 
 (a ) Done a;iu Xfirtpg, J. concurred.
 
 OF MARYLAND. 75 
 
 latter it is a good plea in abatement, tliat there arc others 1 80^. 
 not named. 
 
 In this case, instead of issuing the fieri facias the par- 
 ty should have taken out a scire facias against the mortga- 
 gee, 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. 
 
 The cause was argued before TILGHMAN, NICHOLSON', 
 and GANTT, J. 
 
 Key and Shaaff, for the appellant, stated, that the ques- 
 tion for the decision of the court was, whether or not a 
 writ of scire facias ought to have issued against the terre 
 tenants claiming under the mortgage, where there was an 
 alienation of the land pending the scire facias on the judg- 
 ment? They contended, that a writ of scire facias was not 
 necessary, and referred to 2 Bac. Ab. tit. Execution, (I.) 
 731. 4 Com. Dig. tit. Execution, (D 1.) 133, 10 Vin.J^b. 
 tit. Execution, 563. Co. Lilt. 290.b, 
 
 Harper, for the appellee, cited 6 Bac. Ab. tit. Scire Fa- 
 cias, (C 5.) 114. Tulhfs case, 2 Sulk. 598. 5 Com. Dig. 
 tit. Pleader, (3 L. 14), 783. Mams and Terretcnants of 
 Savage, 2 Salk. 601. The Earl of Pembroke's case, Carth. 
 111. Arnott. 4- Copper vs. Nicholls, 1 Harr. S f Johns. 471. 
 He also objected that the sheriff's returns on the fieri fa- 
 cias 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. 
 
 THE COURT OF APPEALS reversed the judgment qf the 
 General Court.
 
 7(j ( \M-:* IN THK COURT OF API'K \ I.- 
 
 AN . DA i!.. 
 
 Arr-FAi. from a decree of the Court ofChancery dismi:-- 
 p'mg the bill of cotnj)laiiit. By the hill, an-wer, and b 
 I |* 11 timonv- taken in (he cause. it appears that a certain i 
 
 A parol contract 
 
 itiimi o lh " ^"'^ having a daughter married to ffingattf the complain- 
 u,T; in h uw' woi"i ant entered into a verbal agreement with him to -ell to him 
 to"hw "inlnJ* 'wn two parcels of land, on which fl'ln^ftfc then re-i-.lei!. for 
 ofthrn d iu'"^150, being one half the value of the land; the other half he 
 S7 i r- l 'oi- l !j?,- intended to give to //V/i-/'".v wife; and that Dull olten ^- 
 fl th'i'pnM-u'i^it clared that .the land was to l>e deeded to Hhi^uft'i son. 
 w in Uw. /nd ' That // innate pij'ul L-Ki in part of the purchase mom v, 
 oney ^'Id. and continued in possession, and paid the taxes on the land, 
 which were charged to him by (he direction of />/, and 
 with the approbation of JHngate. That /Jail made an en- 
 try in ]}\> book of accounts, crediting // in^ufr on the '25th 
 of August 1798, "By cash received for u contract for the 
 plantation where he. now li\ e>," \< . 40. That fJnil af- 
 terwards had a son born, named Joneph, (the appellee,) and 
 in order to make provision for his son, declared his inten- 
 tion of taking the land from tl'in^dtr, and ^ivin^ it to his 
 son, and in lieu thereof to give U'lu^ntc peoonal prni 
 ty; which intention was made known to Jf innate, who was 
 not altogether Mtifted with the arrangement. That J)ail 
 ofiered to return tlie 1-JO to II insult; which the latter did 
 not reiiisc to take, but said he had no occasion fur it, and 
 Jhtil haid he would keep it for him until he should call for 
 it. J)ail afterwards, by his will, de\i-.ed the land to his 
 the appellee,) and bftjut -athed suiulry .la\e.- to //"/'/<- 
 gait's wife. 
 
 11 \\^\, Chancellor, (2d July 1804.) It appears, that 
 to prevent the setting up of contracts, like the one - 
 in the bill, was the object of the I frauds and 
 
 perjurie-: and thU court ne\er did, and ne\ci- >M^hi, b\ il> 
 decision, to defeat the -alul.ii v intent of the act. 
 
 It ha-, indeed, under -ome circumstance*, -nforcel the 
 rmanceof j-arol contracts, but ne\cr in a case like the 
 present, where it remains uncertain whether or not time 
 was any contract, and even if there was a contract, it does 
 not appear clearly what was the engagement on the com- 
 plainant. Decreed, that the bill be di-mi-M-d, but with- 
 out costs. 
 
 From which decree the complainant appealed to this 
 court
 
 OF MARYLAND. 
 
 The cause was argued before CHASE, Ch. J. TILGHMAX, J B07. 
 NICHOLSON, and GANTT, J. 
 
 /. Bayly, for the appellant, to shew that such a contract 
 oiijrht to be enforced, cited 1 Eq. M. 21. 1 Fern. 363. % 
 J r crn. 455. 2d pt. 1 Eq. Ab. S3, 42, 44. 1 ^A. 13, 15. 
 1 re*. 83, 221, 297,441.2 Fes. 299. 3 /?ffc. 4. 
 
 Shaqff\ contra, contended, that chancery would not en- 
 force a contract which the party who applied to li;i\e i f 
 enforced had shown an unwiUiagnesa to comply uith on 
 his part. That a contract, if in writing, would not be en- 
 forced if there was proof that it had been rescinded by 
 parol. 1 Foribl. 392, (note e.) 
 
 THE COURT OF APPEALS affirmed the decree of the Oourt 
 of Chancery. 
 
 CLARKE vs. MAGRUDER, ft ah . *T.. 
 
 APPEAL from the General Court. This was an action of T ;nie the m- 
 ussumpxili brought by the appellees, (the plaintiffs in the L rar> pnMmptiva 
 court below,) for goods sold and delivered. &c. The writ c ierk,wtoisu-i. 
 
 B and who made 
 
 issued on the 9th of March 1799, and at May term 1802. certain enti its on 
 
 " the books ol bi 
 
 the action was entered for the use of Samuel Johnston, and employer, <uiiv t -r- 
 
 e<l the goods, as 
 
 others. The defendant, at October term 1799, pleaded chared 
 
 The defendant 
 
 non essttmpsit. and issue was then joined. Heafterwartls, y* t ! lflr "lj'"* t 
 
 ' tlie liraiiintl s Gr- 
 
 at October term 1801, filed an account in bar, and g ave i"l^ i" u^l e "- 
 
 nntirp nf a <irf o,'i' crued subsequent 
 
 * V JJ- totlie conimcnfe- 
 
 1. The plaintiff', at the trial at October term 1804, pro- -it>r the ", 
 duced 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 sub- 
 ject. 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 March 1799, (there 
 being no endorsement at that time for the use of Samuel 
 Johnston, and others,) and that it was served on the 1 9th 
 
 '
 
 78 M> IN THK ('01 UT OF APPKALS 
 
 1807. of A] ill 1799. with a copy of the declaration and account; 
 and nave in evidence, that at October term 1799, the plea 
 'f//i//.si/ was put in. and issue joined in the cause, 
 Tliev further nave in evidence, that the defendant v\a- in- 
 debted to them on the 13th of August 1798, for goods, 
 - nnil meiThandiy.e-, to him sold and delivered before 
 that time, in the Mini of 381 10 3i current money. The 
 defendant then ottered evidence to pi me. that on the 24th 
 of August 1798, he paid the plaintiffs the sum of .(.9-V 10 t> 
 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: 
 
 "Haltimore. < ' "99. 
 
 For Dollars 1270 92. Six months after date we promise 
 to pay to Mi. /'. D. Goverts, or order, one thousand tw 
 hundred seventy dollars and ninety two cents, for value 
 received. Jt'jn. B. Mo snider &: Co.'* 
 
 "Which note was thus endorsed: "I hereby assign and 
 make over all my ripht, title, claim and interest, ol the 
 within note, to Bailnj . Clark, for value received, lie 
 clearing me of my indorsement, and all po^ihle conse- 
 quences. Peter D. Coverts." 
 
 And the defendant proved the signature to the note> 
 ////;. 11. Mugmdcri ff Co." to be the si <j nature and pro- 
 per hand writing of the plaintiffs, and the hand wilting and 
 me of Pftcr I). Goverts, to whom the note was made 
 payable. He also pave in evidence, that the entrv on the 
 docket of the plaintiff's cause of action for the use of 
 
 'nisfn/1, and other-, was made at May term 
 and not before. The plaintiffs then produced and read in 
 !i\ find with the con-ent of the defendant and 
 his counsel, the certificate of Peltr I). Goverts, to prove 
 that the defendant, on the 16th of May 1800, and not be- 
 purchafied the note from him for the >um <>f - 
 
 ;ifeml)'-r 1'J, 1 803. I, tin- Mib-i i :!MT, here- 
 by certify to have sold to Mr. Haley E. Clarke, on the 
 16th of May 1800, Messrs. It'm. Jl. Magrinler, 4- Co's 
 note <f hand, drav.n in my favour, and amounting to dol 
 Jars 1270 92 cents, dated Orti.hor the 29th. 179". 
 months after date, for the sum of S-25, in consideration 
 of he the Raid Clarke not holding me responsible for my 
 indorsement. 
 
 Peter D.
 
 OF MARYLAND. 79 
 
 The plaintiffs then prayed the opinion of the court, and 1807. 
 
 iheir direction to the jury, that the defendant could not 
 
 Clarke 
 
 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. 
 
 Key, and T. Buchanan, for the plaintiffs, cited and re- 
 lied upon Evans vs Prosser, 3 T. R. 186. The act of as- 
 sem. 1785, ch 46. 1 Esp. 239. Bull N. P. 180. The sta- 
 tutes, 2 Geo. II, ch 22, *. 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 Sir a. 1234. 
 
 Mason, for the defendant, cited and relied on Gassaway 
 vs Dorsey, 4 Harr. $f M-Htn 405. fVolgamot vs B runer, 4 
 Harr. fyM'Hen. 89. Baskerville vs. Brown, 2 Burr. 1229. 
 I Esp. 240. The act of assem. 1785, ch 46, s. 7. Barnes's 
 Notes, 450, Bull. N. P. 181. Collins vs Collins, 2 Burr. 
 
 sao. 
 
 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 com- 
 mencement of this action. If this set-off was allowed, 
 great mischief would result from it. It would burthen the 
 plaintiff with the costs of suit, although at the time he in- 
 stituted his suit he had a good cause of action, and against 
 which, at the time, there was no defence, and it would en- 
 courage 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. 
 
 The act of assembly, in the opinion of the court, makes 
 no change in the law as to the time (he cause of action ac- 
 crues. It enumerates the cases in which the set-off may 
 be claimed, and allows the defendant to plead 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 con- 
 strued so as to prevent circuity of action, and to do jus- 
 tice 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 
 
 fa) Done and Sprigg, J. concurred.
 
 SO -lilT OF AIM'K VLS 
 
 _ up claims 
 
 v - - >- ' in haia-s tin- pl.iintiir, ucid burthen him with costs, \\itl 
 MM 
 
 faulr in him. 
 
 The chief judge observed, that th" defendant ran avail 
 -If of nothing done during tin- pendeiu -y of tlrt ac- 
 tion, unless it has I ho concurrent act of tlie plaintiff. The 
 debt must bo a snli-iitinc debt at the tinio tho suit is 
 brou'iht. If the defendant pays the debt, or IMS a rd 
 he ni'i>t j'lcail it after tlio last continuance. If a 
 marries pending the suit, it must be pleaded puts durrein 
 continuance. 
 
 In the care of Jf'ofzatnot vs. Brunei-, there were three 
 pleas \i/. Nothing in at rear, pavment, and set-olK There 
 was a demurrer to the la->t pica, and an exception to the 
 other plea'-. T'li- exception was defective: and the only 
 i|K>n the plea of set -oil', a> tiie party could 
 not take advai!'.T:o of the c . i* beiti^ ilefective. 
 
 l the only < i-c ri-fern-il to on the set-ofl". 
 ^tipafufd r-f. Fle(c/nr, 4 T. 11, 511, is cer- 
 tainly ^i.(l \\\\\ : if \\:i- there considered, that pa\ ment tt> 
 the landlord by the subtenant, i> 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 except i-d. 
 ":ct ami judgment for the plaintiff, and the defendant 
 tiled to thi- court. 
 
 l!< - The cause was argued before TILGHMAS, NICHOLSOK. 
 
 pMUtd in..x ht- i.-t 
 
 '. '"and GAM r, J. 
 
 ii.count, altM it 
 wai ii. 
 
 "U^lTbAl^u XhaafTi Johnson, (Attorn. -\ Ccneral.) and fan-Horn^ 
 for the appellant, referred to ill -;aintt- ( .f ' (in). II, ch. 
 22, *. 11. 8 Geo. II, ch. -24. I. -i. ': .mil the act of 
 ch. 46, s. 7. CM0nfV.Cy 8&9 
 
 II',,,. Ill, ch. 11. Evc.ns r*. Proaser, :, T. /.'. I 
 
 Ktij and T. Buchunnn. for the appelle-, ( iii 1 flaske- 
 
 II'. ML /,',/,. :-.):,. liurr. I -MO. A'. C. 
 
 B . / :,it. 468. 3 Jf'ent. 160. 
 
 &c. 1 Esp. 238, 239. Lr. liret vs. Pavilion, 4 Ilnst, 507- 
 // . .\- Johns. 3G5. Reynolds vs. Beer- 
 !'. /.'. 188. 
 
 TMF. COUHT of APPEALS reverted the judgment ( 
 General Court.
 
 OF MARYLAND, 81 
 
 SAU.NDERS, et ux. vs. SIMPSON, et ujc. 1807. 
 
 JUNK- 
 APPEAL from a decree of the Court of Chancery dis- ^^^^t 
 
 missing the bill of complaint. The bill filed by the pre- Saui e 
 sent appellants, on the loth of November 1797, was for a si ' n P n 
 
 A specific jier- 
 
 specific performance of the following agreement, executed [,^ c r % h r col *. 
 on the 28th of December 1777, by William Andrew, de- eSe/in'"^?? 
 ceased, vi/,. "Baltimore county, to wit. This agreement ^ ^,7^"^". 
 witnesseth, that whereas T, William Andrew, of the said $',- %?$ < 
 county, did engage and promise to give unto my daughter, ^."fcd "oTfhe 
 .Elizabeth Saunders, on or before her marriage with Mr. ^ l ,",j n W[1 V a |i. ver 
 Robert Saunders, eight or nine hundred acres of land; and edited! iim't it wa~ 
 three or four negroes, which land hath since been recovered A B equiubfeV 
 
 , tie in the def'-nd- 
 
 of me, so that I cannot give her that land 1 promised; and ant to lands, iii 
 
 , . , not prevent a re- 
 
 I, the said William Andrew, have now settled the said covery a s amit 
 
 . him in an action 
 
 Robert, and Elizabeth his wife, on my Bush River plantation, of ejectment bro't 
 
 > r by a pei-ion hav- 
 
 called Jones? Inheritance, containing three hundred and ms tiie legal title. 
 
 (note) 
 
 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 Wil- 
 liam Robinson's bond for the conveying of said last men- 
 tioned tract, unto my said daughter Elizabeth, her heirs 
 and assigns, and all the estate I can or may claim thereon 
 and thereby, which 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 per- 
 form 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 titla 
 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 licretofore 
 gave them, so that my said daughter may peaceably possess 
 and enjoy said lands, and her heirs, for ever. In witness 
 
 11
 
 8* CASES IN THE COURT OF APPEALS 
 
 180r. thereof 1 have hereto set my Imnd and seal this 28th 
 I:rr . 
 
 Saundrn 
 
 Scaled :i1111 denvwed /r//. Andnw, (L. S.) 
 
 in prr-i-i: 
 
 Abraham Andrtw, 
 .im 
 (',,/ 
 
 The bill stated, that Abraham Andrew, one of the sub- 
 scribing witnesses to the agreement, was the eldest son and 
 heir at law >}" ll'illiani Andffir, and that Averilla Andrew 
 and rriiriUu Colvin, were two of his daughters. That Wil- 
 liam Andrew died on or about the 1st of February 1783, 
 having first duly made and executed his last will and tes- 
 tament, by which, after devising a few inconsiderable le- 
 gacies 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 Dnrbin 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 com- 
 plainant, Saunders, and recovered judgment for the pos- 
 bession of the same, notwithstanding they knew he claim- 
 ed the same under the above mentioned agreement. That 
 the complainant not having any other except an equitable 
 interest in the lanrls, was unable to defend the possession 
 thereof at law. and was obliged to suffer a judgment to bo 
 entered against him, and seek his remedy in this court (a.} 
 
 (a) In the trial of the ejectment referred to, brought l<y Simp 
 tonetfii tjtftfe n Saunter*, \n the general court at October 
 term 17'.-i, I ir .S unfit'* !)iirorrry and Jon's's Inheritance, the. 
 plaintiff proved, thu \\ ,11mm Andrfic being seized in (ee simple 
 of Jne*'i fti/ierttanct, c|evj-<rd ihe same to the wife of XimptoH. 
 one o< the letiora of tlie plaintiff. The defendant then produced 
 the agreement, or instrument of writing, put porting to have been 
 e<er.ui-<i ! , a* et Inrth in the context, and prayed the 
 
 court to direct the jury, that if they should be of opinion, from 
 etridrnce tvSirh iiight he offered, that the *aid instrument of wri 
 lint; * dulv r-xccnted, then the effect ot the instrument was 
 sufficient to entitle the defendant to their verdict for the tract o!
 
 OF MARYLAND. 83 
 
 That Abraham Andrew and Averilla Andrew, two of the 1 807, 
 witnesses to the agreement, are since dead, and the com- 
 plainants were in danger of losing their proof to the exe- 
 cution of the said instrument of writing. Prayer, for 
 subpena, &c. and that Simpson and wife might be compel- 
 led 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 ac- 
 cordingly; and a commission issued de bene esse for taking 
 testimony. 
 
 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 con- 
 veyance, 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 commis- 
 sions which issued for that purpose, and the several exhi- 
 bits proved. 
 
 Exhibit E. Is a letter dated Middle River Neck, Octo- 
 ber 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 Tf'illiam Andrew to Robert 
 Sounders, without date, but is in answer to one from the 
 latter to the former dated the 8th cf December 1781, 
 
 land called Jv7ies's Inheritance, But the defendant did net offer 
 any evidence to prove the execution of Uie said writing. 
 
 GOLD SBOROUGH, Ch. J. ( Chase, J. absent, Duvall, J. con- 
 curred.) The court are of opinion, that the instrument of writ- 
 ing produced, even though the same should have been duly exe- 
 cuted, 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, vvher e the 
 judgment was affirmed at November term 1797. 
 
 Key and Winchester, for the plaintiff and appellee. 
 
 Martin, (Attorney General,) and HolKngtworth, for the defen- 
 dant and appellant.
 
 SJ, CA>K> IN TI1K rorRT OF Al'l'K\l,> 
 
 1807. mi mentioned by If. Chtmvber* concerning 
 
 land, if it run- I "i had 
 
 bettor l)ii\ in- ;it this time. I 
 
 lliir.k you may afford to b'iy that bit: and it you will, I 
 \\ill bo up and be ; . our 
 
 Ertnbit A. 1, a h,!id d.-.tnl i!,- I8(h of July 1 
 filted bv John AY.-;/.v;j t,i John ( Hfi'ln, and condt 
 for the comeyam i- 10 (\>frin of ," i! land out of 
 
 Jones's Inheritance and Smith's they 
 
 should be recovered into the possession of AV/ri/ 
 
 /jyiV Z. Is a letter from Sinpsun to 6o/rw ? without 
 date, and is as follows: "1 have received two letters froiu 
 you, the first I did not understand, but the second explain- 
 ed your meaning fully, which i*, you will have I.MHK -y 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 J/nm- 
 tnond and I are in collusion. I tell you it. is more probable 
 that he and you are in collusion. \Vas not every thing 
 that was done about that business at the particular requc.->t 
 of you and your mother.- And pray how i- my intere-t 
 connected with //u/;i//i0mf? Exactly in the same way 
 that I am connected with you, and every other person who 
 has ever done any thing for me in Marylun<(. \\\ \ a\ in^ an 
 extravagant price for it all, or oldi^atin- niy-t-lf >o to do. 
 a-k, il I expect to keep the bond until it becomes 
 due, that 1 derei-. e iny,rlf. In one tiling I am s'.uc J am 
 not deceived, that I sliall not pay it twin-. .UK, 1 do not 
 (.oiid'ixi- it will be more e\| eii*iM: to p; mther 
 
 than to you. But \ou seem to think 1 mu-t p;i\ h io y m j. 
 whether I will nr not In thi> let me tell y<m, you deceive 
 Miuoelf, and ^r.--l\ too. Y.M vein to tlunk I (ai.not do 
 without y our uv 'tin f'e^ential 
 
 importance tome. In thi> you are \vr.>; knew 
 
 for what purpose I wanted her tcstiiminy, nor doe* she un 
 
 and it herself, neither would 1 have ti-hl ;IP\ oi 
 but i u\ to iiifi.rm you to |n--.,-nt \.mrun- 
 
 uinjt: I ini.i infamx, and such difficulties, that it 
 
 Mill be impossible to ( M yu from. The real inten 
 
 tion on my part was to make IPT te>;imony good for no- 
 thing, which i>do)ie, she having ;die;;.;\ -\\oin on boti. 
 of the question. Now you expose my bond for ?-ale, the tliinj; 
 
 (a ) By a plot made of the lands, i* appeari that this tract run 
 nearly through the middle of Jonet't Inheritance.
 
 OF MARYLAND. 
 
 public. It must and \viil be considered asa bribe 1807. 
 for which she lias perjured herself. To prevent any <; 
 quence of this kind c was my inducement for exacting a pro- 
 mise 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 ail. Would you 
 h;ive a little patience, the business is in such train that it 
 cannot be long until you will get the money; but such im- 
 prudence 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 posi- 
 tively receive more clear profit on the final issue of this 
 business than I shall. This suit has already cost me up- 
 wards of S400, and will yet cost me a sum I cannot cal- 
 culate, besides a great loss of time. What you get, you 
 get clear, and that without trouble or expense. Had you 
 uie in your power in such manner that you could force 
 money from me in this way, would it not amount to abso- 
 lute robbery? And do I deserve it at your hand in any res- 
 pect? I have felt mj'self 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 Jialfi- 
 more 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 connexion with either of you again." 
 
 HAXSO.V, Chancellor, (14th of March, 1805.) Without 
 acting against the principles which have governed the Chan- 
 cellor 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 au 
 alleged contract, has been more weakly supported by the 
 admissions and proofs in the causei But it would be irk- 
 some to the Chancellor, and he conceives it altogether un- 
 necessary for him to give his opinion at large, and to re-
 
 ST> CASES IN THK COURT OF APPK.U.- 
 
 1807. mark particular^ . -tiinmiv. I'c mrd, tliat th;.- bill 
 
 be </<! *#*<</, and the injunction heretofore i..m-d be dis 
 ed. 
 
 From (his decree the complainants appealed to tlnV 
 court, and the case was argued !)('.. re CHVSK, Ch. J. 
 TiL(.:i--i\->. NICHOLSON and UAMT, J. by 
 
 Murlln, It'uigtiij, Shaiiff, Johnson, (Attorney -General,) 
 and Price, for the appellants (a), and by 
 
 A'o/aml Harper, for the appellt 
 
 CHASE, Ch. J. delivered the opinion of the court. It 
 appears to the court, (hat the bond dated the 528th of De- 
 cember 1777, from JJilliam Andrew to Robert Sounders, 
 and wife, for the specific execution of which the bill \\as 
 filed, has been well and sufficiently proved. The letter 
 written by Andrew to Sounders, dated (he 20th of Octo- 
 ber 17r.', slums the foundation on which (he bund \\as exe- 
 cuted, and exempts it from suspicion of fraud, or Ulicit 
 contrivance. The bond may be considered as the fulfil- 
 ment of the promise, made to the daughter, contained in 
 that letter, and is strongly corroborated by the exhil. 
 and R. The conflicting interests which prevailed in the 
 family on the death of Jlndrtv.; the disputes consequent 
 thereon, and contrivances formed by the parties to get as 
 much of his property as could be obtained in the general 
 sci amble, have exhibited a scene of iniquity and COITUJ,- 
 tion seldom brought to the view of a court of justice. 
 
 The n.ndrct of Sounders* altho' highly reprehensible, in 
 the iwtl'.i'ds adopted and pursued by him to get ;L confirma- 
 tion of his wife's right to the lands in question, or t 
 cure it to himself, cannot defeat or diminish the wife's equi- 
 table li-zt't and interest thus acquired by her father's Idler, 
 confirmed by the possession given pursuant thereto, and b\ 
 his bond \'^ ^,'",ulcr. 
 
 And for thej-e rr;.>,,ns the court do reverse the. deer 
 the Chancellor, with costs to the appellants; and do!. 
 
 :ind adjudge, that Simjismi and wife, by a good and 
 
 suffici'-ni < on\c^aii( in la\\. do -I'ant. coim-y and make 
 
 . to Elizabeth X,t>:iiders, and her heirs, for ever, the 
 
 (n) They citrd 2 Stra. lO.'C,. 1 Illk. Rep. 365: and 4 llnrt . 
 22i4, lo l ow that will mijht be eMaMM.cd ttn.i.-li the tiir. 
 subscribing witnesses (hereto denied their handwriting.
 
 OP MARYLAND. 87 
 
 lands called Smith's Discovery and Jones's Inheritance; 1807. 
 
 and that Simpson and wife be perpetually enjoined from ^^^ 
 
 proceeding at law on the judgment in ejectment obtained Rin r,,w 
 toy them against Suunders and wife. 
 
 DECREE REVERSED, &C. 
 
 CHENEY vs. RINGGOLD, et aL Lessee. DECEMBER, 
 
 ERROR to the General Court. The defendant in error whether or not 
 
 ^ . P c 20 years exclusive 
 
 brought an action of ejectment m that court, tor a tract ol and unmixed P os- 
 land called The Number of Two, situate in Washington >A'^n\ by "uith-a- 
 
 , , , tion and general 
 
 county, within the reserve of Conococheaque Manor, and use, without an 
 
 actual enclosure, 
 
 containing; 1970 acres of land. The defendant, (the pre-is&ch a possession 
 
 as will bar a reco- 
 
 sent plaintiff in error,) took defence on warrant, and plots very m ejectment? 
 were made. At the trial at May term 1803, the defen- ^whether or not 
 
 4 20 years po-sessiou 
 
 dant offered in evidence, that several Manors existed in ^^/V^ actual 
 Maryland prior to the year 1730, which were the private e I u lc t | 1 v s *re, n with a an 
 property of the then Lord Proprietary, and that the follow- S% e jj""4e 
 ing order issued from the Proprietary, on the 8th of June ^e'^^SS ily 
 1731, (o lay off reserves on and round his Manors, viz. anTgSicra"""^ 
 *'Sir, Whereas his Lordship, the right honourable the rp i^Jectm" of 
 Lord Proprietary of this province of Maryland, hath or- cuL^'oKm? 6 "" 
 dered to make a resurvey upon all his Honors, Manors arid tiff with title? ha 
 
 -ri i A i ji Liii i- ji in possession by 
 
 Lands, and to enlarge the same on both shores of this enclosure and cut- 
 
 r i i .,1 i i i ir e ,1 i , tivationofa part 
 
 province; I do hereby, in the name and behalr ot the right of a tract of land, 
 honourable the Lord Proprietary, order and require, that whole, and the 
 
 defendant, with.. 
 
 you forthwith cause a reserve to be entered for his Lord- Ollt title having 
 
 possession by 1 11- 
 
 ship on all vacant lands, rough or cultivated, and on all c 'J )8 ' ire of a P art 
 
 of the same tract, 
 
 lands that are or may become escheat or forfeit to his W1 ' h . tUe u . 5e J b y 
 
 * cutting timber. 
 
 Lordship, adjoining to ami of his said Honours, Manors ^ cj of tlie 1 lne - 
 
 > |>ai'tsnot incloseil, 
 
 or Lands, or witliin the distance of three miles from them, bound'"b'"^he act 
 or any of them; and that you likewise acquaint the seve- n! !t m part o S t a the 
 ral surveyors within this province thereof, that they may [ n " d p^Son " 
 behave themselves accordingly. Given under my hand actulf "nX\ u ^ 
 ilus 28th day of June, Anno Domini 1731. ,J?SL^2 
 
 TI 7%. T -i x- T ln fT 'lie brine-iiiE: 
 
 BencPt. Leorfd. CulVCri. his ejectment, but 
 
 To Philemon Lloyd Esquire, Deputy Secretary of used 'by the pa de* 
 
 mr i ! fendant exterior 
 
 Maryland. to the encioai*. 
 
 T When tvo are 
 
 "In pursuance or the above order, a reserve is herebv in " lixed p ss es9>- 
 
 . ~on ot the ^anie 
 
 made ior and to the use of his said Lordship, on all va- laml < one b y titte 
 
 and the other by 
 
 cant lands, rough or cultivated, and on all lands that arc *',j; the /-"^ 
 
 having the title, 
 as in possession to the extent of his right 
 
 The act of limitations did not attach or run against the Loixl Proprietary on anr possession of vacant 
 
 Mh
 
 ( ASKS IN ! Mi t di RT <> Al'I'K . 
 
 1807. . cscheatuble. or nny w*rs fe.-.fcit < 
 
 of his Hoii'nr -. ' ' 
 
 llUlds, or \\i'!iin the <li-'.m. > of three ::.':' r- from them, 
 or any of them. To all conccnu-l." Th<- defendant then 
 read in evidence, the certificate oi < ' '<<n<\ 
 
 thereby v\a- leMirvryed on tin- 33th of October 1 7.^>, I" 
 ordr of Xmiwel O<fle. Esquire, * l mnl, 
 
 for tlic use of IMC 1. :"t;irs. n\^ LonNiip*, Manor 
 
 of land, l\inu: >n ''rinrc ffrnr^r"^ c-tunty, c-llnl < 
 
 'liny to its first inU'ndnl b<uni'ls. !,- 
 fee. roM(aini'i Ki.^JM ncre^ of h.'i-!. 
 in evidence the wtrMBt ^hi'-'i i-'icd on 'In- (1th of 
 June K 52, l.) ' ' . : . paid 
 
 50s. sterlii "i for the same; and i to |iro\e, 
 
 that in jHii.-nanre. of th.it warrant, a survey -.vas made for 
 ('/iru<t/ un the l.'th of November, 17.v2. and a certificate 
 thereof returned in . a tract of land tailed f'/ir- 
 
 >if/'. - ol land, to be held of 
 
 .SIM! thai the . of siirvev 
 
 -.amined and j!a--ed on the 30th of March 17:54, and 
 the conipo-iiion ni" p.iid thereon in April 1 
 
 He also ottered to prove, that C.'HU-I/ irmiu'diately after the 
 -nrxey, t-ntered on the land, rlaiminu; the \\hole as his right 
 and proper! v. and died in pi.s-e^i.iii thereof in 1780; and 
 that the certificate of survey, and the hind therein incltid 
 nl, called Cheney's JJclig/it, arc truly located by the de- 
 fendant on the iiiutr in tl.i- < au-e. And that Chniry built 
 MI, imp.roM-d ;md cultivated pavl, and tut and u>t-d the 
 \\ood trro\\in^ thereon, claiming the whole until his death, 
 a^ :ii> ri^ht and proper! \;ai. OD tlie 
 
 death of Clirnnj, hi- la:! . entered on the said land, 
 (hiiui'm : : !.-:iin i j; to the loca- 
 
 tion and ivrttfi' I. And f . t'ie an 
 
 , ant' tli'- del. .,;.!-, .-nd held by 
 
 11 for uior.- Mian tinnh/ 
 
 - next j.r.-ced'niu. the l'ri:i','il)- of .im-tit, all 
 
 that part <.f ('/'.'.> ;"* //''/..'/ v.lii.h i- contained \\ithin 
 ines shaded blue, as located and docribed on the 
 . claiaiiny; the enrlo-'d land, and the whole of the 
 :'Mi proper estate an,! d that all 
 
 the land, as located within Chum/'* .' \lerior to 
 
 -ires shaded bh:e, has been claimed and used in 
 , ami tlior-e claiming mi.! r hii-i, as ;
 
 OF MARYLAND. 89 
 
 lielight, exterior to the enclosures shaded blue, has been 1807. 
 claimed and used by Cheney, and those claiming under v v* -* 
 him, as part of Cheney's Delight, ever since the year 1762, 
 by cutting wood and rail, and other timber thereon, for the 
 use and purposes of their dwelling and farm, on said land; 
 and that no other person whatever has at any time used, 
 enjoyed, or cut any of the wood or timber on the land, ex- 
 cept Cheney, and that no person has claimed the same, or 
 any part thereof, except that a claim has been set up by the 
 lessors of the plaintiff', and those under whom they claim. 
 That Cheney's Delight is included within the lines of a 
 tract of land called The Number of Two. The plaintiff" 
 then showed in evidence, that on the certificate of survey 
 of Cheney's Delight, no patent ever issued, and that the 
 reason why a patent was refused upon that ceiiificate, is 
 indorsed thereon in the words following, viz. "No patent 
 to issue on this certificate, by order of his Excellency, be- 
 ing within the reserve of Concgocheigue. 
 
 Test. , IF. Sieuart, Clk." 
 
 He tlien offered in evidence a patent for The Number 
 of Two, (being part of the reserve around Conegocheigue 
 Manor,) granted to John Morton Jordan on the 15th of 
 July 1768, and which is the land for which this ejectment 
 is brought, and which is truly located on the plots. He 
 then read in evidence a deed from Jordan to Tliornas Ring- 
 gold, dated the 26th of October 1770, for the land called 
 The Number of Two; also the will of Thomas Ringgold, 
 dated the 16th of February 1774, whereby he devised 
 the said land to Benjamin Ringgold, his son^ in fee simple. 
 And he proved, that B. Ringgold died on the 26th of 
 August 1798, without child, and intestate, whereby the said 
 land descended to his three brothers, Thomas, Samite', 
 and Tench, and his sister Anna Maria, who before tiii.s 
 ejectment was brought was and still is a married woman, 
 the wife of Frisby Tilghman; that the last named Thomax 
 Ringgold, by deed ot bargain and sale, on the day 
 of October 1798, conveyed all his interest in the said land 
 to his two brothers Samuel and Tench, which said Samuel 
 and Tench, together with Frisby Tilghman, and Anna 
 Maria his wife, are the lessors of the plaintiff*. That Jordan, 
 the patentee, entered upon The Number of Two, claim- 
 ing title to the whole thereof, according to his right, until 
 he sold the same to Thomas Ringgold. That T. Ring- 
 
 VOL. II. 1-2
 
 <JO CASES IN THE COURT OF Al'l'KA 
 
 18OT. ZoM, after tlio conveyance from Jordan to him: //. Ring* 
 zold, after the death of his father, bv liis guardian and IJN 
 himself: and the lrv.ot> of the plaintiff', after the death of 
 B. ftinzzold. re*pecmely entrn-d upmi ihr -aid land, and 
 by himself and themselves, and his and their tenant*, p,,- 
 .1 and enjoyed a part thereof by actual culihation ami 
 enclosure, and claimed title lo the whole thereof, accord- 
 ing to his and the'n \e rights vi/. T. HinggoM 
 until his death in November irr<>: I>. Jti.-i^^o/il until hi* 
 death in August IT'JS; and the les-ors of the plaintiff until 
 the time of briniiing this ejectment. That Jordan re-idul 
 >n the city nf ^n/Kiftolix, (H.^tant from the land upwauls <il 
 1<K) miles. That T. Ringglid, tlie elder, resided at C'/iu>- 
 fir-Tuu-u in this state, distant upwards of 'loo miles from 
 the land: and that the guardian of DtJKNggoMj during his 
 Minority, resided upwards of 100 miles from the land. 
 That /,'. Ii'in'*ifol(l was born on tiie tith of January 17T4, 
 and on the 17th of September 1700, in the name of his 
 . in- instituted an action of ejectment against the 
 ,i ii It ndant, in the general court, for the recovery 
 of the land now sued lor by the present plaintiff', against 
 the present defendant: and that the action \\as depending 
 and undetermined \shen Ji. Jlinifgoltl died, and that it did 
 abate by his death, and was so entered at October term 
 17W. The plaintilf also offered in e\idence, by the same 
 \\itnesses v. ho wen- examined by the defendant, that <lie\. 
 the witnesses, ahvay- under-Moml tli.u ( 'h< m //'.v fjt/i^ht \\ a - 
 allied to lie witliin the reserve, of Conogochtagut Manor, 
 and tlierefore ' tn nf d'n n> /.*.> Jhli-jlit could not 
 obtain a patent therefor. The defendant then praved the 
 t.pinl'.n of the court, and their direction to the jury, that 
 if they find the fads as stated l*y the defendant, that then 
 -.01 , of thf plaintiff weiv l>arred fiom making title 
 l.iai\vp;ti; <! < ":< in i/*.v /)r/i:fht, for the reason that the 
 
 - inclnded in the lines of '/'// \ 
 )or \\hkh the tjei tment i- brought. 
 
 ( n \sr. Ch. J/a.j The court refti to give th* dire. 
 j>ray<V being f pinion that r.othing less than tu 
 years advene pesHi')n, by actual enclosures, will bar or 
 defeat the titl> of the plaintiff in this case. The defendant 
 cKeepted. 1'mlirt for t ; V according to hit pre- 
 
 fa) Done, and Sprigg, J. concurred.
 
 OF MARYLAND. Ql 
 
 tensions, except as to the lands located on the plots as in- 1807. 
 eluded in lines .shaded blue, as to which, verdict for the ^ ~-r~^- f 
 
 f Cheney 
 
 defendant. Judgment being rendered on the verdict for vs 
 
 the plaintiff, the defendant brought a writ of error to this, 
 court. 
 
 At December term 1806, the cause was argued before 
 BUCHANAN, NICHOLSON, and GANTT, J. 
 
 Key, Shaajf, and Hughes, for the plaintiff' in error, in their 
 arguments cited 3 Blk. Com. 209. Cutten vs. Johnson, 
 2 Stra. 1142. Fisher vs. Prosscr* Coivp. 217. JSsp. N. P. 
 434. Ridgehfs Lessee vs. Ogle ty Leonard, 4 Harr. <$' M'-Hen. 
 123. Ring gold's Lessee vs. Malolt. 1 Harr* S: John. 299. 
 RusselPs Lessee vs. Baker, Ibid 71. 
 
 Martin, Mason* and Johnson, (Attorney-General,) ar- 
 gued for the defendant in error. 
 
 Curia Ad. Vult. 
 
 At this term the court pronounced their judgment. 
 
 BUCHANAN, J. The facts stated in the bill of excep- 
 tions taken in this case are, that prior to the year 1730, 
 several manors existed in Maryland, which were the pri- 
 vate property of the then Lord Proprietary; that on the 
 28th of June 1731, an order issued from the Lord Pro- 
 prietary to lay off reserves on and around all his manors; 
 that an order, the date of which does not appear, issued 
 from Samuel Ogle, the then governor of Maryland, to re- 
 survey for the Lord Proprietary his manor called Conogo- 
 chiespte Manor, in pursuance of which order, that manor 
 was resurveyed, and a certificate thereof, dated the 25th 
 <t October 1736, was made out by the proper officer, and 
 returned to the land oJice; that a reserve was laid off, on 
 and around the said manor, and that afterwards, on the 
 6th of June 1752, Charles Cheney obtained a warrant 
 from the land office; in pursuance of which a survey was 
 made by the proper officer for and in his name, on the 
 15th of November 1752, of a tract of land called Cheney's 
 Delight, and a certificate thereof made out, which was 
 examined and passed by the examiner general on the 30th 
 of March 1754, and returned to the land office on the 
 17th of April 1762, when the composition money thereon, 
 and the rent to that day were paid, and on the 10th of 
 June 1767, the rent to that time was also paid; that on
 
 93 t \M.- IN THK COIR ; <>i- AIM'!: \i, 
 
 1807. thi* certificate a j atent \va> rctu-ed. becaii-< \ /;,- 
 
 liz/i! lav \\itl.. ' , and 
 
 that no urant !.,. ; lhat rn the 7 Mi of 
 
 'M.mh 1769, John Morten .loruitn obtained a patent fora 
 tr.ict of land railed Tin .\nn<tnr cf T . a part of 
 
 the ri / from whom the 
 
 l.-^al title la Tin- .\:n:il < r of T>f> i- n -iib.rlv deduced to 
 the lessors of the plaintiff, and that C/tturi/'a fhUxhf lie.-, 
 within the lines of The Number of Tiro. ' t r.nrlcy 
 Chrncij, for \vhom Chcnri/'x Delimit \\:. d, and the 
 
 defendant in the court bvluw have lived thereon ever since 
 the Mir\ev, iising the pai's exterior to the enclosures ever 
 -hue the year 17('>2, by cutting wood, rails, and other tim- 
 ber thereon, for the use and purposes of the farm; and for 
 more than twenty-seven years next preceding the institu- 
 tion of the suit, have been in the actual possession, by cul- 
 tivation and enclosure, of a part of the land lying within 
 the lines of Cheney's Delight, claiming title to the whole; 
 and that the lessors of the plaintiff', and those under whom 
 they claim, have, ever since the grant of Th( dumber of 
 Tim, possessed and enjoyed a part thereof by actual cul- 
 tivation and enclosure, claiming title to the whole, accor- 
 ding to their right. It is contended, that the order to lay 
 reserves around the manors of the Lord Proprietary, dated 
 the 50th of June 17.31, was not Applicable to the Conoco- 
 chcapf/i Mciinr, which, as it is said, was surveyed in the 
 5, Mibsequent to the date of that order; that 
 therefore the reserve on that manor was unauthorised and 
 void, and that a patent for Cheney's Delight was iinpro 
 jiejlv withheld. Hut the certificate of Conococheagtte Ma- 
 nor, dated the 25th of October 1736, is evidently a certi- 
 ficate of resurvey recognizing an original, and having for 
 
 mdation an order from the then gouvnor of .^fan/hmd 
 to resurvey Conococheagve Manor, and for any thin- ap 
 j eaiint; in tin- ic(i/rd,the original suixey of that manor 
 
 ' \\.\v been untfiior to the date of the order to lay oft' 
 reer>es. But vhcthcr anterior or not, a reserve \\as 
 made around Lonocochraguc Manor, and afterwards the 
 \\ari.irn granted to ( !itunj on the Gth of June 175:, was 
 located, (as aj ; 'he afore<i(.iii<i statement of t 
 
 within the lines of that reserve; and for that reason it \\a- 
 ordered and determined, that a patent should not issue on 
 the certificate of Cheney'* Delight. And whether the 

 
 OF MARYLAND. 
 
 judgment of the judges of the land office, was correct or 1SC7. 
 not, or \\hethcr the reserve laid oft' on Conococheague 
 Manor was properly or improperly made, is not now for 
 us to decide, nor is it material in the consideration of this 
 
 case. 
 
 A patent did issue for The Number of Two, which does 
 
 not appear to have been ever vacated; and so long as it re- 
 mains unvacated, if there is no elder patent covering the 
 same land, or other grant overreaching it in law, (neither 
 of which appears,) it operates to vest in the patentee, and 
 those claiming under him, the title to all the land lying 
 within its lines, whether the order to lay off reserves is ap- 
 plicable to Conocochcague Manor or not, and whether a 
 patent for Cheney's Delight was properly or improperly 
 withheld. 
 
 To recover The Number of Two, this suit was institut- 
 ed, and defence was taken for Cheney's Delight, which, it 
 appears, lies within the lines of The Number of Two, and 
 for which no patent ever issued. Therefore the defence 
 taken, w r as not on title derived by grant, but grew out of 
 the possession in the defendant, and Charles Cheney, un- 
 der whom he claims, of a part of Cheney's Delight, by ac- 
 tual enclosure for more than twenty years before the time 
 of bringing this suit, with a continued enjoyment from the 
 year 1762, of the parts not enclosed, by cutting timber, 
 &.C. exterior to the enclosures. Hence the only question 
 is on the operation of the act of limitations upon that pos- 
 session. 
 
 I shall not go into an examination of the questions, whe- 
 ther twenty years exclusive and unmixed possession of a 
 tract of land by cultivation and general use, without an 
 actual enclosure, is such a possession as will bar a recove 
 ry in an action of ejectment? Or whether tvventv years 
 possession of a part of a tract of land by actual cultiva- 
 tion and enclosure, with an exclusive and unmixed enjoy- 
 ment of all exterior to the enclosure by sparsim cutting 
 and general user, will bar a recovery in ejectment of the 
 parts not enclosed? For although they are questions of 
 considerable importance in this state, and whatever my 
 opinion touching them may be, yet as they are not involv- 
 ed in this cause, it is not necessary, nor perhaps would it 
 be proper, to decide upon them now.
 
 i i FUR COURT OF Al'PKAL.s 
 
 1807. The .y.u^fion in the court below grew o::f .(' tli>- > 
 
 ;M the cause; and that the opini- .:-. from which 
 this is an appeal, was given upon those facts, and \vitli ;i 
 to th? particular case then under o on, i- 
 
 evident from the opinion itself, which i> in these vonl-: 
 'Nothing li>>s tlian twenty years ad\. -inn by ac- 
 
 tual enclosure will bar or defeat the title of the plaintifTin 
 this (a-." Vml I concur with liie ^rneral court in that 
 opinion, admitting all the facts stated in the bill of c 
 tions to be true. 
 
 This is a case of two conflicting claims, in which tin 
 pretensions of both paiiies are set out. Th lessors of tho 
 plaintiff with title, having possession by enclosure and cul- 
 tivation of a part of the tract of land in dispute, rlaimin^ 
 the whole: and the defendant without title, having i 
 sion by enclosure of a part of the same tract of land, witlx 
 the use (bj cutting timber, &.c.) of other parts not enclo- 
 M-d. As to that part of the land which was in the p< 
 sion of the defendant, and his ancestor, Charles Cheney, 
 by actual enclosure for more than twenty years next pre 
 ceding the bringing of this suit, the plaintiff' is bound by 
 the act of limitations; but not as to the parts ued by tin- 
 defendant exterior to the enclosure. 
 
 When two are in mixed possession of the same land 
 one by title, and the other by wrong, the law ccn-ider- 
 him having the title as in posM^ion to the extent of hi> 
 ritfit. 
 
 The act of limitations did not attach or run atjain>t tin 
 Lord Proprit'ary on any possession of vacant land>: ami 
 even if it could have run against him as to the land in 
 question, he was not barred by the possession of Churli -. 
 Chun i/ on the 7th of March 1769, the date of the grant 
 of 77r \ -.-of Tiro. 
 
 And \\haN-\er mi^ht have ! t t!.- 
 
 tade bv the defendant, and hi.- ancestor, of tln>e 
 parts of The Xtnitlnr of Tiro, claimed by them exterior 
 to th: CD l>\ -|.ai-im cutt'urg, for twt- 
 
 preci-ditc 'he institution of this v.iif, in ca^c the pun 
 had n-jver entered and obtaim-il pi.-^r^'nin lu-fdri' or dur 
 in-i that user, and no mixed ; li.n! full 
 
 in thin case it . that John Morten. Jurdiui, 
 
 grantee of Tlic Number of Tiro, and those claiming umlei 
 him, did immediately after the date of the grant, and
 
 OF MARYLAND. 
 
 Vi thin 20 years from the commencement of any possess!- 1807. 
 on in Cheney, enter upon and take possession of a part of 
 The Number of 7VfeJbj actual enclosure and cultivation, 
 claiming title to the whole, and have ever since so posses- 
 sed and claimed ; and the possession of part, gives in law 
 a constructive possession of the whole. This principle 
 may be extended to both parties in this case, and each may 
 i>e considered as having been in possession of the land 
 claimed by him, according to hia right, and the true extent 
 of his lines, with the exception of the parts enclosed by 
 i he other the defendant of Cheney' 's Delight, and the 
 lessors of the plaintiff of The Number of Two, which in- 
 cludes all Cheney's Delight; or in other words, the defen- 
 dant of a part of The Number of Two, according to cer- 
 tain alleged lines, and the lessors of the plaintiff of all 
 Tlz Number of Two, except the parts thereof enclosed 
 by the defendant. Their possessions, therefore, of those 
 jwirts of Cheney's ^Delight not enclosed, or rather of the 
 unenclosed parts of The Number of Two, claimed and 
 used by the defendant, (for there appears to be no such 
 grant as Cheney's Delight,) were mixed or conflicting pos- 
 sessions, on which the statute of limitations could not at- 
 (ach or -run, so as to bar a recovery by the plaintiff, who, 
 if the facts stated in the bill of exceptions are true, is the 
 -legal owner. 
 
 Even if the defendant's possession by enclosure com- 
 mesced first, which is pot stated to be the case, that, ami 
 his cutting timber exterior to the fences, could not have 
 prevented the constructive possession vesting by operation 
 of law, in Jordan, of all the unenclosed parts of Tiie Num- 
 ber of Tiro, on the actual entry and enclosure made by 
 him, and those claiming under him, upon a part of that 
 tract of land, within twenty years fit>m the date of the 
 .jratit, claimingtitle to the whole, ijut if the possession, 
 by enclosure, of the lessors of the plaintiff, and those un- 
 der whom they claim, commenced first, and for any thing 
 appearing In the record that may have been the fact, sure- 
 ly no cutting, &c. by the Chenci/s, exterior to their enclo 
 hures, could so divest tfee possession, cast by law upon, the 
 plaintiff, of the unenclosed parts of The Number of Tico, 
 as to let in the operation of the act of limitations. 
 
 Upon the whole, I consider the question in this case to 
 be. whether t\venty years mixed possos-ion of unenclosed
 
 c ISE9 IN I' UK (QUIT OF Al>I'K.\L> 
 
 180". lands can operate to bar a recovery in ejectment by thr 
 I'ul owner, he being one of the posses- 
 
 On tlii- t|in'*Mon I feel no doubt, aiul therefore am of 
 opinion that the judgment of the general court inigh' 
 ;i Tinned. 
 
 .'. C!)MCIMTCJ. 
 - i i , J. i!i-M ::'cil. 
 
 DH NORWOOD'S Lessee. 
 
 A mrmorn'' i >m AppKU. from the General Court. The appellee bn>u<;!if 
 ike ircorj f ma:. ' fr a tract of land called Tin \ 
 
 dred. tintintr Out i. f 
 
 ibr<irh*.i t, , lying MI Baltimore county, containing 520 a 
 
 nltrml. fer i, n ,i 
 
 : and an l.ulf acre of land. The defendant, (now appellant,) 
 
 .arrant, and pl>.N v. riv returned. 
 
 & T! .vl ' ' ' exception*. The plain till' at the trial at 
 
 rm 1804, read in e.id.-nce the pat.-tit of a tract of 
 
 Hid rulli-. 1 v, granted to T ,,>,ni 
 
 *& " won toe 10th of November 169J, for 1000 acres. Alan the 
 
 ^^"it'T,,^ grant to .Vurw-.w../, tle lessor of the plaintiff, for the tract. 
 
 '!h,b,?rr,u,'.;'r'. uf land called The Discovery, the land mentioned in the 
 
 Tr'ihr uin or j. declaration, and fir which this suit is brought, dated the 
 
 tttii tTfawV. C5th day of June 1?.(K), and granted in pursuance of a 
 
 maBritain it special iniffunl of cychcai, obtained by Norwood out of the 
 
 md office, on t!i? '2Jth of October 170.1. to resurvev and 
 
 f . i i > 
 
 a tract ofland called ftrown's adventure, ori<;inallv, 
 
 - 
 
 n the 10th of November :.'/' , ,//-,/. 
 
 ii- 
 
 Jl"^" For 1000 acres, who is stated to have died sei/. -d thereof 
 
 ruf ft ^ri'i* to him 
 tar Ike land ur 
 
 1 it wttrmt. cmme within th prori.ioui of ihr 8th tertian of the met of Ntvem'ter 
 
 tmutt rrn( i v.il'nl to KB* the '. in.: piJ mar- than two Uiirdi 
 
 t.-rr wn no 
 .-tirri- i.i Hi ... i ly rirtur of 
 
 I.anrf li>h .:i, may \t* gr i l*r n c}tit warrant. 
 
 Hehmebemt grtnl will opente by rviaiion to to give title from the date of the warrint of (* 
 rbnt. 
 
 TW t-li tfiton r t 1731, r '.. 21, <~cured the land M eiclrtktcd to the par'y, OR 
 
 hH lM}tnf ttro ihinl I 
 
 Th*t*r, ' . !>oM",i<in ofall BritiiH property , . niti ol ili 
 
 Vo /. .n tiatc uo ihe 19th of Norember 17)4. il.r ti.ne wli> > 
 trrtij . 
 
 Wfcrrr r>-rtii:i fi.-; *'in'.' . i ! in KVi VM .>'i.fi' I 
 
 mo, the '!>>. in puwewion <>l ' tin- 
 
 .,.:.-.',., ;;. ..... '. M EttMf .1 .1 \ . '.il .! I'r- . - : 1,1 i-i v. l 
 
 nn. m' ji rt to in . . .n. . 
 
 n) r -T<lc1, tniT br road i i rv 
 
 i le had been pei ice ' . ..- brcn pm- 
 
 ' ! I' ' |J , .. ' 
 
 '..'. 
 
 ,- UK MOM <>r *-iccu> <
 
 OF MARYLAND. 97 
 
 intestate, and without heirs. In pursuance of which war- 1807. 
 rant the tract was (bund to contain, clear of elder surveys, 
 the quantity of 494 and an half acres, to which was added 
 26 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 composi- 
 tion due for the vacant land added, the state granted to 
 him the land, resurveyed as aforesaid, with the vacancy 
 added, and called T/i Discovery, agreeably to the certi- 
 ficate of survey thereof returned into the land office, bear- 
 ing 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 defen- 
 dant 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, bear- 
 ing 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 TJios. Bland, and hav- 
 ing the following indorsements: May 4th, 1699. Then re- 
 ceived of the within named John Gadsby, the sum of two 
 pounds sterling, being for the fine due the right honourable 
 the Lord Proprietary, upon the alienation of the land with- 
 in 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. 
 
 f '/r. Toy lard. 
 
 "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 with- 
 in 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. 
 
 "FT. Tai/lard, C\]i.'- 
 
 VOL. IT.
 
 98 
 
 CASES IN THK I'urUT OK AITKAL9 
 
 180,'. The defendant then produced the record book, cent 
 
 ing the >.iid deed, \\ith its >everal indorsements, :ind | : 
 ed the opinion of the court, and their direetion to the ju 
 ry, that if tliey were of opinion that the indorsement- 
 were made at the request of John (ratlybi/, tin- grantee in 
 deed named, and \\ith his prixity and con-ent, and 
 that the deed, with the M-x.-ral indm enu-nt, \\a- recorded 
 for his IxMiefit, and with his assent, that then the indi<> 
 menu on the deed by the plaintiff' produced, are com 
 peteHt to be read in e\idenre (< support the. farts therein 
 contained, against the title of Gailyby, to the land in the 
 deed mentioned. 
 
 I'nxsv, Ch. J. (a.) The court arc of opinion, that the 
 memorandum on the deed from Thomas Jiron-n to John 
 Gudslti/i endorsed, to wit "Memorandum. That the 
 date of this xvas originally according to the date of the 
 above receipt, but aliened by consent of the provincial 
 court ami parties, to briivj; it within the act of a--emblv. 
 II'. 7'////</r<f ' is not evidence^ IxMt;^; an act done bv T<ti/- 
 /.//(/ without authority, and that the (Ved is valid and op.- 
 i-ative in law to transfer the land to (iudsby. 
 
 ^ :n.c., J. observed, that when lie sat alone at the trial 
 of this case at the last term, he considered the memoran- 
 dum as having been made by an officer having authority to 
 make it; but since, upon reflection, he finds that he was 
 wronj* in the opinion which he gave. He concurs with the 
 rourt in the opinion given, that it was an act done by 7</// 
 lurd without any authority. The defendant exrepted. 
 
 ^ Tl;e Defendant then ottered to road in evidence a 
 i" co in ' ;ied h m tllis court on the l^th of Nov.-m 
 
 ii i,, ,.,.) ,.,.,.,.,; ,l t ., M1 ,ition, taken thrivimder, and 
 
 returned to ihU rourt on tii-^ H)h of April 1804. Il ;ip 
 . the defendant had, at May term 1KO1, <ibtaineu 
 a coiumiion to I^ondon for the purpose of takin:; 
 mony, and as the cause was then -tandin^ for trial, thr 
 . ommissiiMi vns granted, x-.itli a pnixiso, that if it was not 
 returned at the ne\t term it would he no cau^e of conti- 
 nuance at that term on the part of the defendant. At <>i 
 
 () Dont, J. concurred.
 
 OF MARYLAND. 99 
 
 tober term 1801, the defendant filed interrogatories, and 1807. 
 took out duplicate commissions. At May term 1802, the 
 commission and depositions were returned, and the plain- 
 tiff obtained a continuance of the cause, and also a com- 
 mission to London upon the same terms, that if it was not 
 returned at the next term, it would be no cause of conti- 
 nuance, &c. At October term J 802, the defendant had 
 leave to renew his commission upon, the same terms as 
 were originally granted, and he filed additional interroga- 
 tories, and issued the commission, and sent a copy of his 
 original and additional interrogatories with the commissi- 
 on, which was returned, with depositions, as before 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 inter- 
 vened since the commission was taken out by the defen- 
 dant, and the plaintiff had sufficient time to send forward 
 his interrogatories. The oath which the commissioners 
 take, shows that they may receive additional interrogato- 
 ries at any time before the commission is closed. In exe- 
 cuting 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 +aken under the commission may be read in evi- 
 dence to the jury. 
 
 3. The second bill o f exceptions. The plaintiff then An escheat war. 
 
 runt could not le- 
 
 pioduced in evidence a deed from John Gadsby to John^^'^^ e .^^ 
 Barker, dated the 10th of July 1701, for 130 acres, part !".*' i^'E 
 of Brown^s Advtnlnre, describing the part by courses and u,e' a tiine' Y f n the 
 distances, and calling the same Markers Inheritance. ,nn ; but TgrEi 
 Also a deed from Gadaby to Aaron Rawlings, for all Aev/y^andM- SM 
 residue of Brown'' s Adventure, not conveyed to Barker, w?/ii\i) n ihe r pn!vi- 
 dated the 2d of October 1703. Also a deed of Btortttce Number "rsuA. 
 
 20 s U 
 
 from Aaron Rowlings to Jonathan Scarlh, dated the 13th 
 of May 1706, for all the land included in the patent of 
 Broivn"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 Adventi'.re, for the want of
 
 100 CASES IN THE COURT OK APPEALS 
 
 1807. the heirs of Thomas Brown, or "be it escheat by the 
 
 l "v ' means aforesaid, or by anv other wav or means whatsoe- 
 owiu^i * 
 
 ** ver," granted to the lessor of the plaintiff on the 28th ot 
 
 October 1795; also a certificate upon that warrant, return 
 ed to the land office on the 2 ( .Mh of >i-|>teinl)ei 1796; also 
 a caveat against a grant's i^uin;; on the certificate by Ed 
 tcard Dorsey, on the 26th of August 17'J5; aUo a second 
 caveat entered against a grant's inning thereon by ffilllani 
 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 
 : uber 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 
 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 Th,t 
 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 Rowiings, died in Great Britain, having alwa 
 sided there, leaving issue an only son and heir at law, who 
 during his life always lived, and died in G. B. and left is- 
 :ii only child his daughter and heir at law, who always 
 M-Mi'.ed in (i. B. and married Francis Moorr; that she and 
 Moore her husband, having always during their live- i, 
 sided in G. B. aftei wards died, lca\ M^oie of 
 
 <i. l>. their only son and heir at law, who is now in full 
 life residing in G. B. where he always ha.- i Bri- 
 
 tish subject. The defendant then prayed the court to di- 
 rect the jury, that the warrant of escheat which issued to 
 the lessor of the plaintiff, issued without authority of law, 
 <hc property Inrin^ in the state of Maryland as confiscated 
 property, and not liable to be affected by a warrant of es 
 cheat. 
 
 CHASE, Ch. l.(a.) The court are of opinion, that it tl.< 
 heirs of \>-urth were living in Great Britain &t the passage 
 of the acts of October 1780, ch. 45, ch. 49, and ch. 51, that 
 
 (a) Dont, J. concurred. Srigg, J. gave no opinion.
 
 OF MARYLAND. 101 
 
 the warrant of escheat which issued to the lessor of the 1 807. 
 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. 
 
 4. The second bill of exceptions in continuation. The A PT nnt r ' a . n ;' 
 
 i as escheat, which 
 
 defendant then offered in evidence the valuation of the Jj'"^^'''.''^'"^!'^ 
 land so escheated by the lessor of the plaintiff, and the gj* 1 *^^ 
 sum by him paid into the treasury for the land on the 24th J^,, t^hirXTrf 
 of December 1799, arid that the sum so paid was only ttAO'^^t^aA^ 
 thirds of the appraised value of the land so escheated. 
 And he then prayed the opinion of the court, and their di- 
 rection to the jury, that if they were of opinion that the 
 lessor of the plaintiff had only paid two-thirds of the ap- 
 praised value of the land so escheated, that then he could 
 not entitle himself to the benefit of the warranty contain- 
 ed in the act of November 1781, ch. 20, s. 8. 
 
 CHASE, Ch. 3. (a.) 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 con- 
 sidering his case as coining 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. 
 
 5. The third bill of exceptions. The defendant then T1;ft >' '' 
 
 . 1-11 t0 lai "' s ' l-0 ' 1| i 1 !'>- 
 
 read in evidence a record of the late provincial court of <1 ' 1 U1 "' l>1 a " at - 
 
 tiicumriit, cannot 
 
 Maryland, of a judgment for attachment, recovered in that be "^"i'" 1 y ; -<'>- 
 
 ' J e out a fieri f tscins 
 
 court at April term 1732, by Littleton Waters against Jo- iTn^o^LLu! 
 nathan Scarth, for 397 9 6, sterling money, and costs; ej 
 also a record of that court of a writ of attachment if^ued 
 on that judgment by Waters, on the 15th of November 
 1736, against the goods, chattels and credits, of 8atrth$ 
 and a return made on that writ by the sheriff of Baltimore 
 county, to whom it was directed, certifying that he had at- 
 tached, as the goods and chattels of Scarth, a tract of land 
 called Brown's Adventure, containing 870 acres, and 
 
 (ft) Done, J. concurred. Sprigg, J. gave no opinion.
 
 10 IN i MKco; IITOF AIM S K LLa 
 
 180r. \\l.iih ho had rau-ed tn In- ;']>]! ai-rd, i\ >i .ij, 
 
 Mien i>r ili'- >aid hind, anounting to 304 in < 
 noncy; upon \\liitli return judgment of romlctuuation 
 in the usual form, \\as rendered at May tern 1." V. Pihei 
 
 da of attachments and condemnation - mdr;. 
 
 irarnMiee-. and otliei lamU to the amount of L -"'JS 1'2 (i 
 Meil'm:;-. v. eie oflort-d in rvidrnrc. Tlio jilaintiir, to lm\s 
 that tho land, part of Jifcu-n'n .idrciitttrc, alit-ctru by tin- 
 aiiailiincnt, \\as the 386 acri-s. liiatrd by him upm tin: 
 | lot.-, as the land, part of Jiromi's rfdrriilurr, in th. 
 
 "ii of The Hdllhnorc Coti>pcn)>>, read iu i^idcncf tlu- 
 late Ijnl Proprietary'* old rent roll (a . kept aiui ri main- 
 ing in the land oflicr, >ho\\in^ tl.at l\u* - in |;osse8- 
 
 >ion of 870 acn % s, and lltirkir \\a-> in 
 
 -. of that land; also the Proprietary's fast rent ml/ l> . 
 s!io\\ing that Scnrlh was in possession of 419 acres, and 
 C'liar/c* Carroll, Exijvirt^ $ Coinjxmi/, (conimonly r.illi-d 
 T.'n ItaltiiHorf CotnpanyJ were in pii--r*.-inn of . : :-.(. 
 of that land: also the Proprietary' 1 * debt boo/, for th< 
 1734, \\ltic li i^ tl-.e oldest debt book known of, or can b<- 
 found, wherein it appears, tliat The lialtiiiton > 
 -taml charged wiih quit rents upon the 386 acres of land, 
 
 . >nd no more: and that Xi-arl'i, 
 
 in those debt \.< ai'-red with the quit n-n 
 
 on 419 acres, part of that trail: and that the i< >px tlv. 
 .;ainst 77:c P.allhnore Company, and $t",-f/i, .in- 
 continued, in like manner, upon the 1'n-; debt 
 
 books, from the year 17.)-$ until the comnu-n. I the 
 
 revolution between (irutt Jirilaln and .inn-rico. The de- 
 fendant then j.:-a\i'd the opinion of the court, and their di- 
 rection to the j'iry, that by virtueof the jud^im : 
 inent and condemnatinn. by the plaintilV -i\en in e\i<!ei:ce, 
 a legal estate was vested in Littleton U'atcrs in the tract of 
 land called liroicn'n 
 
 C'H\M, C'h. J. The court are of opinion, that /.ittl, 
 ton H'attrs did not acquire, a legal otate in /}n>ini\-> li! 
 
 (a) Made about the year 1708 it is supposed, but there i* no 
 date to it. 
 
 (b) Made about the year 17CO i: is supposed, but there is no 
 date to it.
 
 OF MARYLAND. 103 
 
 venture fry virtue of the judgment, attachment and con- 1807. 
 Uemnation. The defendant excepted. 
 
 6. Tlie fourth bill of exceptions. The defendant then 
 read in evidence an act of assembly of November session The right of an 
 1797, ch. 119, entitled, "an act to relinquish the right of hL C bie"w r w!iftS l . 
 this state to the lands therein referred to, "and prayed thfci%o**inig hi* 
 opinion of the coKrt, and their 'direction to the jury, that waived by tilr 
 bv virtue of that 'act. the right of the state was so farl^tUn'oYW^ct 
 
 of 1797, ch 11; 
 
 vested in the persons possessing JJrown's Jtdventure, un- mi ihe errant to 
 
 1 p him operate* to 
 
 der the condemnation aforesaid, that the lessor of the transfer the statis 
 
 ' rf.Miicrest in. tuii 
 
 plaintiff could not in virtue of his warrant, certificate o* laud 
 survey and patent, have any right or title to the said land, 
 nr if any, then no more than the proportion or compensa- 
 tion to which a discoverer of confiscated property is en- 
 
 CHAST,, Ch. J. The court* are of opinion', that the 
 right of the lessor of the plaintiff to Brown's .ftdventKre, 
 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 of die plaintiff operates to transfer to him the in- 
 terest the state had in the land called The, Discovery, from 
 the time of the obtentiou of his warrant of escheat. The 
 defendant excepted. 
 
 7. The fifth bill of exceptions. The defendant then 17 Jf ie e Jf t s J| f ^ 8 V 
 prayed the opinion of the court, and their direction to the *^ l ,j n la ^,J 
 jury, that if the warrant of escheat, which issued to the^'^^'i'f';',; 
 lessor of the plaintiff, issued without authority of law, h ", nfi p"$ t * 
 that then the -warranty contained in the act of November hi^Vnd tbeKnwt 
 3781, ch. 20, s. 8, did riot operate to give title to the les- trim operwJ by 
 
 c ,1 i x'ii* i jt - i relation to t!>o 
 
 sor ot ti>e plaintin; and that there can be no relation to a date of he m- 
 
 .... . . I'uiit of escheat 
 
 warrant which issues without authority of law, or to a 
 certificate made in pursuance of such warrant. 
 
 CHASE, Ch. J. The court arc of opinion, that the act 
 />f 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 Britiah pro- 
 yj and that the grant obtained by him did operate to
 
 tot CASE.? IN THK COURT OF APPEALS 
 
 1S07. pass the land to him by relation, from the date of the v, 
 ' ' i ant. The defenlant excepted. 
 
 NOT"O.*I 8 - Th* aixth b M f t^tytiom. The defendant then 
 
 prayed the opinion of (ho court, and their direction to the 
 . 
 " r '-""'- jurv, that if Broton* .Idvcnture belonged to a Brititn 
 
 cwmiuiwMrn . subject at the time of passing the act confiscating Britix/i 
 
 in - M*.II ii <J 
 
 ,'niperty in thi- i if no actual possession had been 
 
 ken thereof by the state, or it- . -id no sale or 
 
 ! thrreuf, by the s'ate, to any pen-on, at 
 
 any time before the treaty between the Culled Hairs and 
 
 ' Hrltnin. dated the ICUh of November 1T94, took 
 
 effect, that the lessor of the phintifl* could make no title 
 
 - warrant, certificate of survey and patent. 
 
 t'h. J. The court are of opinion, that the stale, 
 by its commissioners, was in possession of all British pro 
 ithin the limits thereof, under and by virtue of the 
 "ii, October 1780. r.ft. 45, and the act of 
 th< -ion r/j. -49, to appoint commissioners. Lvc. and 
 
 tiiat the possession of the land was in the state at the time 
 the lessor of the plaintiff obtained his escheat warrant; and 
 that no Hritish subject could hold land in this state on the 
 19th of November 1794, the time when the treaty was en- 
 tered into between Great Britain and the Cm ted Slates of 
 America. The defendant excepted. 
 
 wh* mott. Q. The seventh bill of exceptions. The plaintiff then of 
 
 f- mt -x- 9 
 
 cr^BrciV\vi'.o k'' ct ' ' n evidence, that Scarth died before the year 1795, 
 
 v ithout heirs, and that Barker left heirs now living in thi- 
 
 CUP. - ite. AUo an escheat warrant, to a fleet by f -rheat the 
 
 m n7^- whole of Brour's jStlventurc, except the 150 acres con- 
 
 7iThi ^"""o v-yed <o fiarkrr, granted to the lessor of the plaintiff, &r. 
 
 f- The defendant then rfierfd in evidence, that the lineal il 
 
 ^ our of a ; . . _ _ . ... 
 
 cendants, and heirs at law or arotm, the original pat en - 
 fn^'i/cm^iitV U it ti.is time living in this statc^ Alsct, that Jfau- 
 
 ml" r ill* 1 
 
 . the grantee, died leaving lu-irs, and tint the heirs 
 
 thr nwrt)r*r- I *' 
 
 *2* " tl%rd '" ajid desccii - arc at this time living in this 
 
 W UH: }-ar l.rO 
 
 , that the (!- and heirs at law of 
 
 AVv/.-//i, are at this time alive and residing in Great Brl 
 tain; and that Sccrfh was a merchant in the year 170G, 
 
 the then province (now state.) 
 and that Hearth, and his descendants and 
 
 >ar 1 790, in succession, 
 i ally resided in Great Jirilain to this time, being British
 
 OF MARYLAND. 105 
 
 subjects, and never were in this state. Also the will of 180 r . 
 
 Jtawlings, dated the 25th of March 1741, thereby de- 
 
 vising that his lands, called Brown? s Adventure and Young's 
 
 Lot, be equally divided between his sons and daughters. 
 
 Also that f raters is dead, and that his descendants and 
 
 heirs are now living in this state. Also that The Balti- 
 
 more 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, anil 
 
 claiming the land; and that there has been no actual or 
 
 mixed possession of any part of the land by Scarlh, 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 clone, on or after the 13th of May 1709, that 
 
 then the jury may and ought to presume the mortgage sa- 
 
 tisfied before the year 17?0, and that the plaiqtiff 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 as Scarth was 
 continually a resident of Great Britain, and although he 
 never entered into possession of the land; yet a possessi- 
 on of The Baltimore Company of 50 years will not autho- 
 rise the presumption of the payment of the mortgage mo- 
 ney, 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 , Lan * ^v".^ 
 
 I eel (o a BritUt 
 
 prayed the opinion and direction of the court to the jury, {S^o'UnfrSwiSon 
 that if the facts are found true, as stated by the defendant,^ "j^" 1 ^; 
 that then the acts of confiscation, of October 1780, ch. 45, ffif^fSSE 
 and ch. 49, vested no beneficial interest in this state in the {Si^iJ^and 
 lands mentioned in the mortgage from Iitm-Iings to Scarth, canuoV'uVevaTA'n 
 
 but that the same, if it vested in this state under the actof su 
 confiscation, was liable to the equity of redemption in the 
 heirs of Rawlings, the mortgagor, and that by operation of 
 the British treatv, so far as the mortgagee could claim an 
 
 VOL. II. 14
 
 icm CA-K- IN TH; !<! viv:-;AL> 
 
 1807. in tin- innrf -.raged land-. 
 
 confiscation by that tivi". . :ivl loii-'quenlly the plain tifl' 
 is not entitled to recover. 
 
 Ch. J. The court are of opinion, that on the 
 expiration of the time limited in the n. i : tin- pay- 
 
 ment of the money, a complete !r of inheritance 
 
 ii the mortgagee, liable to confiscation, and wa- 
 vested in the state in virtue of the act of confiscation of 
 October 1780, ch. 45, and the act of tin- -ion, c/i. 
 
 4(>, to appoint commissioner?, kc. subject to the right ol 
 redemption in the mortgagor, and hi> hcir>: and that the 
 British treaty cannot operate to afiect the plaintifTs right 
 to recover in this ejectment. The defendant excepted. 
 
 11. The defendant then offered to read in evidence au 
 
 * 
 
 ^d\ original lease and release from Jtaters to Benjamin Task- 
 w en. ^ an j ot j ierS) (The Baltimore C^in/id)!!/.) which are not 
 to be found upon any of the records of the suite, and which 
 are dated, the lease on the 20th, and the release on the 21st 
 of June 1738, reciting the judgment obtained b\ Haters, 
 in the provincial court, for the condemnation of /lYf 
 Adventure, mortgaged by liau'lingn to Scarth the 13th of 
 Mav ITOG, as the effects of Scarth > <S:c. and o!;\cying to 
 Taktr y and others, so much and such part of Jiron-r' 
 venture as should, according to the valuation, upon oath, re- 
 turned into the provincial court, amount tojL'145 1 ;l-tri 
 money, &.c. Neither of which deeds appear toha\i 
 been acknowledged. The plaiatitf objected to the reatliru 
 of the deeds in evidence. 
 
 ( . ( J. The court are of opinion, that the lta- t - 
 and release, being ancient deeds, not i to be re- 
 
 corded, mav be read in evidence to the jury. TI,-\ \ 
 accordingly read to the jury. 
 
 mn>- \\ The ninth bill of cxcintlons. The defendant then 
 
 r*HM ; 
 
 i!."r'r C trd!l )ra . V1 '^ ' '"' " I '' "'"" I ' % ' ]l( ' t(lll! 'N : 'd their direction to tlie 
 wrns J ur . v tnat '* tlie > fui(1 lll facts true > as stated by the de- 
 , that then the deeds of lease and release from It'a 
 
 ters to Tusker 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 7'askcr and others, to the whole of an undivided 38G
 
 OF MARYLAND. 107 
 
 acres of land, being an undivided part of the 870 acres of 1807. 
 land, mortgaged to Scarify called Broiorfs Adventure. 
 
 CHASE, Ch. J. The evidence will not warrant the court 
 t'o direct the jury to presume that Scarth perfected the ti- 
 tle 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 convey or di- 
 minish the security he had acquired for the whole debt due 
 to him. The court refuse to give the opinion arid directi- 
 on as prayed. The defendant excepted. 
 
 13. The tenth bill of exceptions. The defendant then ^^J^ 
 prayed the opinion of the court, and their direction to the ^chJa? sranT'dCi 
 jury, that as to all that part of Brown's Adventure, con- TiK^^rl 
 tained in the deeds from Waters to Tanker and others, un- ciaim'j- dtf ^ ni part 
 der whom the defendant claims, the patent granted to the defcetfr* title 
 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 be 
 ing for the plaintiff, the defendant appealed to this court, 
 where the cause was argued at December term 1806, 
 before TILGHMAN, BUCHANAN, NICHOLSON, and GANTT, J. 
 
 Martin, Key and Harper, for the appellant, in their ar- 
 guments on the first bill of exceptions, contended, that 
 every deed, to give it validity, must contain, at common 
 law, 1. Indentation. 2. Sealing. 5. Delivery; and 3 su- 
 perinduced 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 contend- 
 ed, 1. That the deed from Brown to Gadsby appeared to 
 have b^en executed in pais before Carroll and Bland, an:l 
 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
 
 108 CASES IN THE COURT OF APPEALS 
 
 1807. it wa* further e-t.iMi-'ied In the act of the rink nt 
 * -v ' court, who oilicially ccrtil'ud the alteration of tin 
 
 a proceeiliii'i in court liy the consent of the court and the 
 parties; which, \vlien done, admitted the deed to he record- 
 ed, (i. That it \\as tlie official act of the clerk could not 
 be doubted, became H "a- made under the eye nf the 
 court, and \vith their consent, and endorsed on the original 
 deed. 7. That it was endor-cd at the request of the 
 grantee, for his benefit, and to e\pl:iin the date of the alien 
 ation fine. 8. That the memorandum, after so great a 
 lapse of time, \\as the best evidence of the fact, and ou^ht 
 therefore to ha\e been admitted in evidence as the act of 
 the clerk in OJHMI court, with the consent of the court and 
 tir* to the deed. They referred to Gilli. /,. /.'. 108. 
 
 r*. (;<ni<fn, Cr<>. KHz. CrlC). I'oyici/ r.v. '/ 
 ncr, Ihid 800. The Xtutc vs. Oilen (a). ll>t.^>/t'* I.rttec 
 t'. linker, 1 Ifnrr. &/"' ^ 71. llmlily^s Lessee vs. I/nr- 
 rifuian, Ci Harr. $ M'lleii. 581. Wood vs. Oii'lms* \- 
 
 ',, \ Cfinirli. 
 
 On the secondb\\\ of exceptions they contended, 1. That 
 the land was not liable to escheat, there bein^ heirs of 
 Scarth; and they referred to the several acts of confix a 
 tionof October 1780, ch. 45, ch. 49, and c/i. 51. 2. That 
 this was not a case within the warranty of the act of No- 
 vember 1781, ch. 20,5. 8. They cited 1 /;//.-. Com. 91. 
 3. That the land \\ as liable to conli-ation, and the title 
 to it could only be obtained in a particular inaniur 1>\ 
 sale and deed: and that the land office had no power or 
 authority OVer confiscated land*. They referred toactsof 
 HI; 1785, ch. GO, eft. 88; 1788, ch. 4'.): 1789, ch. 
 17; 1791, ch.77, s. 8; 17!>:, <h. 81,*. 6; 1793, ch. CA-. 
 . ch. 0; 179G, rh. 12; 1799, ch. 80, *. G: and 1800, 
 . G. -4. That the patent was made without au- 
 
 'ccl a () In DIP c*e of Tl.f Stale vi. Odfn, in the general court at 
 
 !!'"'c. M y tcrm ls *" in di:ht otl bond - tl>e defendant pleided nnn est 
 ii'.'i.'. r. ,i i.l I iclum, nd lht the bond was delivered &> an arrow. At the trial 
 . plaintili ofTcred lo prove, that J. S was indebted to the state, 
 . almi h- "d ' ti;i1 llie defendant was indebted lo J. S; that it wat agreed 
 1 '"-""I that J S. shotil;! ;:ivo up to Ihe defendant hi bond, and that the 
 defendant should execute his bond to the *uielor the sum which 
 he owed to J. S which WAS done. That the defendant's bond 
 wa presented to the state's cent, but which was refused to >>< 
 received in discharge of the debt due to the state by J . S, and 
 upon which bondth'.s suit was brought in the name of the state 
 for the me of J S. The <". ENERAI. COURT refused to direct 
 the jury that the bond was the deed uf the defendant.
 
 OF MARYLAND. 109 
 
 tlmrity, and was void. They cited Kelly's Lessee vs. Green- 1807. 
 field, 2 Harr. $ Mullen. 121. 
 
 Owinj,' 
 
 ()a the third, fourth, and fifth bills of exceptions, they Nor " 00(j 
 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 i-. 
 Jfcpburn, 3 Harr. <$ M'llen. 434. Davidson's Lessee vs. 
 Beathi, Ibid. 594. The act 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, *. 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; 4' 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 Nor- 
 wood 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 Cbfa,286, 29. a. 2 Ventris, 200. Town- 
 send vs. A*h) 3 Jltk. 340. Co. Lilt. 310, b. 3 Shep. Mr. 
 150, 151, 152. Howard vs. Cromwell, 4 harr, $ M<-I1m. 
 -325, and 1 Harr. fy Johns. 115. Peter vs. Mains, 4 Harr. 
 iS - M'Hen. 423. Hammond vs. Norrls, in the General 
 Court, (see post.) 
 
 On the sixth and eighth bills of exceptions, they con- 
 tended, 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 tunto. They referred 
 to the treaty of peace of 3d of September 1783, Art. 4, 
 5, 6. Ware vs. Ifyllon, 3 Dull. 199. Clerhe vs. Harwood, 
 Ibid 342; and the treaty of the 19th of November 1794, 
 Art. 9.
 
 
 ( \M-;.S IN THE COURT OF APPEALS 
 
 On tin- .trcnth bill of exceptions (hey contended, that 
 the nature and length of the possession of the appellant, 
 and those under vhom he claimed, to tin- exclusion of all 
 CM*** and there briu^ no demand of the mm t'.ia-e debt, 
 lent for the court to have directed the jur\ to 
 
 '!ebt had been satisfied. 
 
 On the ninth and tenth bii, eptions, they cited 
 
 Ifarrcn vs. Grceiv TO. 112'.). The 
 
 f C'lintdo.-:. 2 /inn: 1003. .tf/iojn/mo?'* Case, 1 \'m- 
 /rw, 257. The Mayor of Hull vs. llorne.r, CVH-JI. Hi-:. El 
 1 !. Cockwl^r V*. rt'.nahaw, Dougl. 
 ',/',.). The aci of 1797. r/i. 119. Carroll rl til. 
 Ltssec, ti. ./. 4 //(///. A- M-J! /;. -287. 
 
 Jiidgffy, Muson, and Johnson, (Attorney-General,) for 
 the appellee, in their arguments on theirs/ bill of cxcepti- 
 I. 1. That the acknowledgment of the deed from 
 i proof that ti . deli\er\ 
 
 that time. . That the memorandums taken toge- 
 ther, prove that then- v. .1- a delivery at that time. They 
 cited Smarllc vs. //VV/u/ms, 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 
 was prima facie evidence of an escheat. That if 
 or his daughter, died after the 4th of July 177G, and be- 
 fore the act of (nlWation, then the land escheated to the 
 state, a the next heir being an alien could not inherit; and. 
 that it vas incumbent on the appellant, who claimed against 
 the r-rhe,. > prove that this did not happen. 2. 
 
 That admittinc; the land to have been liable to confiscation, 
 and not escheat, still the grant ought to pass it; be< 
 at the time of the grant, the price of escheat and confiscat 
 ed lands were the That at the time of making 
 
 . the c!iaiiccli,r had authority to grant con 1 
 ed lands under the acts of 1793, c/i. 04, and 1795. rfi. (>. 
 4. That 1" Tal authority to j'ldire and decide in 
 
 disputes i 'he title of confiscated land*, and that 
 
 he did so on Hammonds caveat; an.l hi> decision oughi 
 to be final under the acts of 1785, rh. (>f: April 17H7, rh. 
 :>(). *. 4, and 17B9, f/'. 35, 8.4. 5. That the gran 
 < ted by the warranty clause in the act of
 
 OF MARY LAND. Ill 
 
 1781, ch. 20, s. 8. They referred to 2 Elk. Com. 9A[\ 1S07. 
 
 The several acts of confiscation before referred to; and the 
 
 acts of November 1781, ch. 20, s. 8, *. 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. Good- 
 
 title vs. Bailey, 2 Cowp. 600. Walton vs. Shelley, 1 T. 
 
 R. 296. Auckland vs. Tankard, 5 T. R. 578. Rex vs. 
 
 TJic Bishop of Chester, $c. 2 Salic. 561. Kclhfs Lessee 
 
 vs. Greenfield, 2 Ifarr. fy Molten. 140. Hammond et al. 
 
 Lessee, vs. Norris, in the general court, (see post). Good- 
 
 title vs. Morgan, 1 T. R. 758. Git tings, 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. ff 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 Rawtinga to Sccirth. 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. Jrn- 
 
 ham, 3 P. Wins. 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. Grceme, 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 //orr. & J/tfen. 594. 
 
 f. vidt. 
 
 THE COURT OF APPEALS, at this term, affirmed the judg- 
 ment of the General Court, concurring in the opinions ex- 
 pressed 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 jurisdicti- 
 on therein, he therefore sued out a writ of error under the 
 provisions of the 25th section of the act of congress, en- 
 titled, "An act to establish the judicial courts of the United
 
 (1-2 ( \H-:< IN i'ili 
 
 J807. AV -. l>tciiil)cr 1789; but tin 
 
 .-:i-;,l -i .if_f it not tt> bo siu h 
 ctl tin- 
 
 DF.CF.MBF.R. Hut \-. <i '< 
 
 INGS Ji(nf'*. \. met v& II j.i.. 
 
 Ko dTfrry ( \ ITl \ I. s lYollI 'die- General Court. Th'l> \\ . 
 
 POMCMMM of Iniiit 
 
 CM arail BKam.t a ,-tj, , n ,,f , ,',,,',,/,/,/ f,,|- a trart of land call.'d 7V/V/^/.v///j, 
 && *tT\hc Conififi <il'. l\iin;in Hitltiniorf county. The dci'.-ndanL 
 lw bVtbT^M.' (MM] ' tM<> i' ( >m't b(-l(w, took drl'i-nco on uanaiit lor ;t 
 
 of land called '/<//'/ \s Purchase, iirantfd under an 
 
 M warmit on (ulttm's Lot. and part of ( >'H> ' 
 
 ,..- 
 
 found, or an atiu- UllU'n. 
 
 ** "'n^adrertary 1. At the trial at May term 1SOO, the defend.' 
 S^ui^ 11 ai^'i'nit to prove, .that (trorife Hollaing the patentee n| //../.' 
 
 the Pnipri. t:.r\, . \-\\c \ i~rr\ A. 
 
 een^eA to opt-rnte / ; ./,'A, died b.'ture the year I. i>(>, intotate, and 
 
 Sir the act of sue. not havinir ( mivovrd tliat land, and liwiny; no 
 
 onHfiii>ru 
 
 TWMtorpeto capable of rahenting. Tliat in the year 177-4, Halt** 7V- 
 
 Tnlrd the > 
 
 "I'alHurft liable to ronf -.ration in th>- roiiiiin-.<inncn, on hrlinlt' o> the slato, ami 
 dni!id ih- [MI, ,,,,, ,,( a || oihcr |>< m 
 
 If ! i I lai.it. I he- on i- by r;M.iul ihi- nilii . - h) rir~, il i (h, 
 
 KM) nl him who i. 
 
 If land ii , mi mi un.it!, 
 
 *f laad. ui h gram v . u ! i!. it" ifi. . .....i.. ,. 
 
 IXMI :i 
 
 I^iiil , .-nr>.\ inailc in rirlnc of *u 
 
 McllMt Will . >>ll! IIUl |. II 
 
 frant.aiid t!i- 
 
 chmt tyrant i I Iraelnchi 
 
 If there an t ili . anil 
 
 b-.undi, fee ihr fr.. -mi accordii.R to il. 
 
 . d to bctiiuw- of bit holtlin^ arfji.u.in: l;n,,j 
 &r. hi< 
 
 . : .i.iniiie landi. ni 10 >' iln- l.nid in . , 
 
 ...I- l.y ilii- |ilnt> t' 
 
 
 
 wa m:;ilr in l'*l, i ' !. l< i t;ili ' i ' 
 
 ml l-.-ii 'i 
 
 IT !..!nl M dirh had 
 ' i la!).i-, n : 
 
 .ai...- ,: !,! . ,, ,..,.:, , ;i, . .,, , nat i . 
 In r,,.!,.. ,v pro. 
 
 >'>i> povirntun 
 
 r irranKv, 
 
 niton Ihf fin 
 ^^riipn.1' ^-rj'.Ur. nix! . luipjicnt; 
 
 -' . M ' n< o( 11 , , Sat lui.ijf only a pro amptionofnifhl m tin- rn - 
 
 i il mull r lopil r'ani. 
 
 ii dcatii ia Mil MM! that ike * ^ naated ta hi* dtrute under the midturv iuiu
 
 OF MARYLAND. us 
 
 ty entered on and became possessed pro ut lex postulat, of 1 807. 
 the lands located on the plots in this cause, surrounihng 
 red M, N and P, claiming the same as his own, and in 
 virtue of his patent for Tolly 1 s Purchase. That the land 
 included in the black lines on the plots shaded yellow, sur- 
 rounding red M,and the land in the blue shaded lines sur- 
 rounding red N, and the land in the yellow lines surround- 
 ing 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 
 thereof against the state,) of the land so enclosed, and de- 
 vised the same to the wife of the defendant. That the de- 
 fendant, 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 seiiin and pos- 
 session 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 hislife-time,*claiming 
 the same, and from the time of his death by the defendant, 
 claiming the same. That Tolly in liis 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 Totty'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 sur- 
 veyor, who on the 30th day of March 1796, entered on 
 the same to make the survey, on which the lessor of the 
 plaintitf afterwards .obtained a patent including the said 
 lands, for the recovery of which this suit is instituted. 
 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 ti- 
 de thereof remained in the state. 
 
 Martin, (Attorney-General,) and Mason, for the plain- 
 tiff, referred to the acts of assembly of October 1780, ch. 
 45, and ch. 49. 
 
 vol.. ir. 1.1
 
 CASKS IN THE COl'HT OF APPKALS 
 
 18' A- . '/ Uingsirorthynil Harper, for the defendm 
 
 Ut /-on. -I //<///. A- .!/ / 
 
 Ml. Jlusxrir* Lessee vs. Baker, \ Harr. ff John?, 71 
 
 Lessee vs. Mulott, 1 ILtrr. V .//(// 
 3 7?/A-. f U7, MuTrui) Sf Sansom ts. It id I < 
 
 . .; 7/,/n. : f u-m.l.l;. 
 
 October 1780, c/i. 51, s. 5; and Nov. 1781, rft. 20,.8, 17. 
 JBurgetses. It luul, 1 H m. lilk, Kip. 171. 
 
 -v, Cli. J. (u). 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. 1'nder the 
 act of October 1780, ch. 40, the !-t,ite bcr.-uiie actually 1> (1 - 
 eesscd of the laud; and that act disprnst-s \\ith the requi- 
 .-iles ucccsiarv in the case of the crown to avoid a posses- 
 <ion adversary to the right of the crown, to wit, an ofl'ur 
 fouml, or an actual entry. By au office found \i\EngIantl. 
 0e crown becomes actually sei/.od and jw^s^s^cd of any es- 
 jjicat land in question. Tin- -taio \\\n\ had the riglit to 
 pass the act of assembly; ant! by that act, the state by ii. 
 commissioners, was in as full jnjsscssion of tJe land as il 
 there had been an office found, or actual entry by the coin 
 missioners, and ouster of the defendant, or those undei 
 whom he claims. 
 
 This case lias been argued upon the principle of the land** 
 beins; held under the idea of its beinj; part of 7//i/'.v Pur- 
 thatf. The court consider it as distinct from Tolly** I 
 f/ja*c, and as having no connexion with the question. It 
 has also been contended by the defendant's counsel on the 
 principles decided in former (n--J. The court do not con - 
 :--r this cas as aff<Tted by former deci-ioiis. In Kelly** 
 lessee > 'thoron, and RusstWa Lessee vs. 
 
 Bakrr, tlie huuls had been granted by common warrant*. 
 afterwards taken by escheal warrants, and there thf 
 
 under the common warrant.-, had had tin* a<! 
 ary possession for the rull length of time, to wit, 20 years. 
 Hut in this case, the -i.iie. by the act of 1780, having vest- 
 ed complete possession in its ( ommi.-.sioners, the adversa- 
 ry possession. fa- stated in the case, commencing at fmr- 
 theat in 1774,) could only have continued till the j 
 of that act If there had been a subsequent entry and pos- 
 cwion of the land by tl>e defendant, or those under whom 
 
 (a) Duvall and Done, J. concurred.
 
 OF MARYLAND. 115 
 
 he claims, there must then have been a continuance for 20 1807. 
 years of that adversary possession to defeat the right of 
 the state's grantee, 
 
 The opinion of the court, as contained in the bill of ex- 
 ceptions 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, 
 eft. 49, vested the actual seizin and possession of the said 
 land in the commissioners appointed to preserve confiscat- 
 ed British property, as fully and am.ply as if the said com- 
 missioners, as the agent qr 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; a^d although 
 the defendant, or those under whom he claims, continued 
 in the actual possession of the said land, it was the posses- 
 sion 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 \vho is in by 
 right 
 
 "The court are also of opinion, that the possession of 
 the defendant, or those under whom he claims, was divest- 
 ed by the said act of assembly, and that the act of limita* 
 tions ceased to have operation, or to run from that time, 
 and that he has no right to the said land in virtue of tho 
 said possession. That the said possession not being de- 
 rived from the Proprietary, but taken and held in opposi- 
 tion 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 defen- 
 dant excepted. 
 
 2. The plaintiff, to make title to the land called Friend '- Kl ' v y here ' and ' 
 
 pie to escheat, wa 
 
 ahip Compleated, in the declaration of ejectment mention - y" j. l ^ 1 ' ( , d ''.!,*! "im- 
 ed, read in evidence the grant thereof for 39 and one quar- jj^,,,'" ou"ali'o- 
 ter acres and 20 perches, surveyed on the 30th of March nt'orauTt!! 
 1796, for, and granted on the 14th of March 1798 to, ftp SKSSfiSnid! 
 lessor of the plaintiff, in virtue of a special warrant of es- been* *JUtta 
 cheat issued on the 29th of April 1795, to resurvey and Suit r l'l"i\> "more 
 
 n i . than 20 jears l:e- 
 
 affect a tract of land called Holland's rark, granted to fore the act of coii- 
 Georse Holland. He also read in evidence the grant of the iau<i u, not 
 
 escheatable at the 
 
 Holland's Park, surveyed the 14th of October \683, anut"' the escheat 
 
 grant was obtain- 
 
 ed, the tate wai 
 not wtopped from panting it to any othnr penon. A etche-it gram relates to the original grant.
 
 110 IN TIIK COVRT OY A1TK \L- 
 
 18- -. ..atcd the 10th , for 
 
 ^^^^ 150 acres. The defendant then, in order to make title to 
 that part of Toll .h ! Decem- 
 
 ber 17.37, for ; d to, //<;//</ 7ol/y, on the 14th of 
 
 Aug 1 .: ,u i\idei.. iiiu; iu 
 
 virtue of a spa nil ;/<// /v / / I:|.MI Cn/.'i..' 
 
 granted to Thoma* '< -, and Culhn'x 
 
 .}<l<iilion, granted al-o to fir^im-in, for. . He 
 
 then read in evidence the will of Tolly, the patentee, dated 
 the '-0th of Juh 1781, by which hede\i-ed 7 ','////"* Pur- 
 chase to the wife of the defendant, who \t> still lixin.^: and 
 he proved that Tolly died, po>M>.-ed thereof, in th. 
 
 He then offered evidence to pm\e, thai (Vom the 
 time of the grant for Tolly's Purchase, the quit rents on 
 that tract had been paid by Tolly, to t of the 
 
 Lord Proprietary, until the year 1770, and that the other 
 ient- imposed on lands had also 
 
 been paid by Tolly, and those claiming under him, for 
 Tolly's Purchase, lie then offered evidem -n to prove, that. 
 from the time of obtaining the grant for Tu fly's Purchase 
 to the present time, Tolly, and those claiming under him, 
 have been in the posses-ion and occupation of that land, 
 claiming title to the sr.ne. He then ottered e\ide: 
 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 the true original 
 lion of that land, and that part of the plaintil; ' 
 
 - (_'<>i/ij)lui!trl, ini'TlVre- with, and run* 
 foul of '/'////'- '. lie then prayed the opinion of 
 
 the court, and their direction to the jury, thai admitting 
 
 mfj /ark, mentioned in the grant of J 
 jdeatcd. was liable to escheat at the time of the .sur\ey and 
 grant to Tolly's Purchase, and part theienf wa- included 
 in the grant of Tolly's Purchase, then the -^'..sequent 
 grant of the escheat on HdlutmC^ Park, called I'fitndship 
 the lessor of the plaintiff, could not operate 
 :e for any part of the land which v 
 eluded in the to 7*0%. 
 
 llarprr and Johnson, for the dcfenda 
 tit. Estoppel, 107. to. Lilt. 47, -2x!7, a. 552,58. 1 < 
 
 . ( .-.... : ' ' . I'm- the plain 
 tifl; citeu Coke Lilt. .3. 4 BO.C. Jbr. tiu /.'i/ciy^c/, 107
 
 OF MARYLAND. 
 
 is. Jnwingfi ct al. 1 Harr. fy M'-Hm. 92. The 1807. 
 Slate vs. /;</:</, -4 I [an. &>- M"Ihn. G. 
 
 CHASE, Ch. J. The court are of -opinion, and so direct 
 the jury, that if Holland's Park was cschcatable 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 operate? to convey a good title to all the land 
 contained within the lines of the grant. But if Holland? s 
 Park was not escbeatable at the time the grant of Tolly** 
 Purchase was obtained, that in such case no part of Hol- 
 land's Park, which is included within the lines of Tolly* a 
 Purchase, passed to fTatt&r Tolly under the grant, and 
 the state was not estopped from granting Friendship Corn- 
 pleated to the lessor of the plaintiff. 
 
 The chief judge observed, that the court considered this 
 decision conformable to that in Kelly's Lessee vs. Green- 
 field $- 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 Tol- * wheat grant 
 
 1 ' _ will pans all tlie 
 
 hj's Purchase on the plots, offered in evidence the certiii- ind_eonijn*id- 
 cate and grant of that land, surveyed (in virtue of a spe- ["^J ie ," nd '^ 
 cial warrant of escheat,) on the 15th of December 1757, cl 'i;'|i;, ',,,.,,.,, two 
 for, and granted on the 14th of August 1759, to Walter '^ >l '^"^"', 
 Tolly. In which it was stated, that there "was laid jtnttk^'^nm 
 for trailer Tolly the tracts of land called Cnllerfs Lot^?gn T'l'n * 
 and such part of the tract of land called Cull en a 
 
 . 
 * 
 
 on, as is escheat, according to their ancient metes at& whjch u^Tno!* b 
 
 bounds, as showed, Beginning for Cidlcn's Lot at a gramee 
 
 bounded red oak, being the second boundary of the land 
 
 called Trucman*s Acquaintance, &K& running thence N Vv" 
 
 S6 perches, N E 500 perches, S E 6 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 
 
 Cullcn'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
 
 118 \>F> IN THE COURT OF AI'i'K.vLS 
 
 1807. bt-i, ! be /nmin^ tree of t'nl . and the 
 
 ond boundary of 7Vf< //w/j'.s ./ctj'aiintttHce, and run- 
 ning then, e N N\ 96 pmhet, > !: <<i i \. . bei 
 
 perch. -. > U HOpcrche-sN \V 1SS pen lie-, and tlicn with 
 a strait;! it lino to the beiimin;, containing and laid out fur 
 I, more or ' ." Ho U!M> uttered in evidence the 
 lerlifuate of survey of a tract of land called Jlmib! 
 
 Mil on the 29th of January \?v:\ for, and 
 granted the 11th of October 1790 to. .-lyniln Hall, the do 
 fendant. In which it is statrd, that then-, "uas laid out 
 fur tin- ^aid Hall, in \irtuo o! 1 warrant dat'. 
 
 cl On -i inlicr 1784, by directions of the conuni>-i(i!n i - (IP 
 i (inl:-< ;ii( '(I liiiiittli property, !i uf land, Ivinj; 
 
 uithin the ve>ei\e of (iunjiou-iltr Manor, a tract or parcel 
 of land adjoining (jinifvn-tfir Manor, and adjoining a tract 
 u- parcel of land called Tolly' x J'unlutsc, lieiiiuninu; at a 
 bounded stone set up by the Kiid //all, at the end of T81 
 perches, on the fn>t lint- -..f (ii/nimn-Jir Manor, and run- 
 ning thence \\ ith and bounding on the manor ir\'< 
 the same S 39 52' \V 784 perches, to a stone marked ^ 
 T, bein.x the beginning of the manor, and a boundary i,i 
 7 'oily' a 1'ni-chuse, and the second boundary nt' Ci/l{i,i\ 
 Lot, thence bounding on Tvl/y** Furcliu^ N K 784 perch 
 ii\ a >tr.iijit line to the beginning, contain 
 .:d laitl out fi.-r Kid acres more or If--." |j,. ; , 
 ill evidence that 7t>%, the patentee of '/'<///// 
 . died in Manh 1783, sei/.ed of the laniU diiitained 
 within the ir,ft-> iiinl hnniid^ of that tract , m-cnrdii^ to the 
 said loraiiiiii: a;il by hi> will de\i>ed that tract tu t|,, 
 t,f i!ie dt'!'.'!i.!aiit, who hath >ince the death of Tolly, con- 
 tinued in the actual i-ri/in and poeion thereof, until 
 
 He al-o otVen-d in e\'n!( tice that he pun 
 f thi- ''!<e ti"'' in 'he >ear 178.">, the tract tit" land 
 
 railed > l"iated on the plot^. 
 
 , Maimr, whii'h manor i^ al-o located on the 
 plot-, and obtained a ^ratit therefor from tin MI the 
 
 1 1th of October I7!'i'. He al-<, nlVeix-d in evidence that 
 7V///, during h"--> 1'le, ;,iid l)eft-i'e and until the .Tnuriut/i 
 reMilution. j.aid the ijUif rent^ lue upon TuIh/'> 
 to the agents of the i'lopi iet.n \ do\\n to tlie\e.n 177<>; 
 and after that lime lie, the defendant, paid-thc taxes due 
 
 :i under the laws o( this state. The j)laintin 
 offered in evidence a certificate of survey of Cullcn'* /
 
 OF MARYLAND. 119 
 
 \eyed for James Cullen on the l^lh of June 1683, un- 1807. 
 tier a warrant dated the 20th of April 1683,) "lying in Bal- 
 tiuwre. county, at the head of Gunpowder river, on the N 
 side of the S branch of the said river, beginning at a bound- 
 ed 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." Also the 
 certificate of survey of Cullen's Addition, (surveyed for 
 James Cullen the 25tk of September 1683, under a 
 warrant dated 30th of July* 1683,) "lying in Balti- 
 more county, "updn the head of a river called Gunpow- 
 der river, beginning at the end of the N E line of the land 
 called Cullers Lot, and running from the end of the said 
 N E line N E 284 perches, from thence with a line dra\v u 
 S E 584 perches to a marked poplar, then running S W 
 284 perches, from thence running by a direct line te the 
 first bounded tree, containing 500 acres more or less.;" He 
 also offered in evidence that Cullen's Lot, Culteri's Additi- 
 on and Toll^s Purchase, are truly located on the plots by 
 him tke plaintiff. The defendant then prayed the opinion 
 f the court, and their direction to the jury, that no boun 
 Uary 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 
 \vith any other land, the said first line must stop at the 
 number of perches called for, and cannot be extended fur- 
 ther. 
 
 CHASE, Ch. J. The court are of opinion, that the true 
 and legal exposition of the grant of Tolly's Purchase v. as 
 to convey all the land comprehended within the true loca- 
 tion of Cullers Lot, and that part of Culkn's Addition 
 Ahiih was escheated. That where there are two descrip- 
 tions 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 bound*, 
 which metes and bounds interfere with the lines of Black
 
 ( ISES IN THK C.'H KTOF AlTi \[ - 
 
 1807. flcrf, !' '.- bv metofl and bounds: for the 
 
 ; i able for t!ie grantee. Tliis 
 1 in the late provincial > 
 and -t of appeal 1 * (c). The 
 
 
 
 The plair .bii-h the location of Thoi,\i 
 
 iSrtnni'b.'cJ."!- Choic?* :l> ' ''illl " ''"' I 1 ' 
 
 'v Choice, Ci/f/tn's f.t y 
 Hol- 
 land's /'</r/., (the last trac 1 to tin- defendant.) and 
 Jamaica, which plot i iin Jhtrhi/ /,Y 
 avi .1 the plaintiff offered to 
 .-, that the .-aid ]>! le bv him from 
 runnings directed by the ! . and made by him, / 
 i -\e\or of Hullbiwrc county, in \iitif 
 a \\2rrant o! -nn this court in an action 
 
 . bv the ! 
 
 <!i. . r. And the 
 
 jilaintil' ;;v of ./;' 
 
 I iace \vh>' / run 
 
 from a^ t!ie l:i'^inning of Thompson's Choice, in the said 
 runnings from which the said plot so produced \\.i- m;idc. 
 
 o ii 
 
 \\as the same j . at(>d on the plots in this cau-e at 
 
 black II. But the defendant objected to James Gilt;. 
 of '/'//<>//m>, bein^ sworn in chief, and that I. >t a 
 
 prove that the place \\\\<- !en- 
 
 dant had directed Enter to run from, in the nimiinirs from 
 which the said plot was made, \ which i- 
 
 Jocated by the. plaintiff on the plots at 11: and olVered to 
 prove to the court, that Ja;;:rt (iitlin^s, of Thomas, \\j- 
 th< aft of Ti: ' ' : and produced 
 
 the cer; f Hill's i 
 
 ':,,{. '!!. ; 
 
 tin" ->n the^4th of October K,Sl. and 
 
 the latter on the Nth of October ItiS/i, and they arc both 
 
 : in /ialtiinorf coi;'.)v. in the woods. 
 
 above the head of a i ' river. The 
 
 former tract began at a bounded red oak standing at the 
 
 end of the N line of 'j'/id . and the latterbr- 
 
 u at a bounded :.<! of IlilCs /'< 
 
 (a j , . 1 linn: , "'23.
 
 OK MARYLAND, 121 
 
 Cu.vsi'., Cli. J. The court are of opinion, .that James 1807. 
 f tilting;}, of Thomas, be admitted as a witness to prove 
 the fact stated by the plaintiff. The Chief Judge cited 
 Hau'kins vs. Bcancs $- Middlcton, 2 Harr. i\- Mullen. 119. 
 Chapline vs. Keedy, 3 Harr. fy M-IIen. 578, and Gittings 
 vs. Hall, 1 Harr. fy Johns. 23, to show that it had been de- 
 cided, that if the testimony of a witness, who is interested, 
 is intended to be objected to, the land, in which the wit- 
 ness is alleged to be interested, must he located on the 
 plots. The defendant excepted. 
 
 5. The defendant produced a witness, who deposed, 
 
 18 years ago he lived with Charles Ridgely, who had then j' a f n( l e a f j ) " 11 ,h| 
 purchased part of Trueman's Acquaintance, a tract of land l^'^^'^'^K 
 located on the plots. That Ridgely told him that an agree- ^ iTpp^^g'by 
 ment had been before entered into between Thomas Git- ^, '^erest^i "in 
 tings, the owner of Thompson's Choice, and James Green- f : |c lis re!ated "by 
 field, the owner of part of Truemati's Acquaintance, (which m 
 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 
 True/nan'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 declara- 
 tions of Ridgely, (who is dead,) so given in by the wit- 
 ness above stated, was incompetent and inadmissible, he, 
 Riilgely, being interested in establishing the truth of the 
 facts by him related to the witness. 
 
 CHASE, Cli. J. The court are of opinion, that the de- 
 clarations of Ridgely are competent and admissible evi- 
 dence 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* ex- 
 cepted. 
 
 6. The defendant, in order to show that the land claim- w,,-tw m-not 
 
 a will inane in 
 
 ed by the plaintift' was not escheatable for the want f the 'xt'La.^'^, 1 
 heirs of George. Holland, the patentee, ottered to read in ftAVor"^.""'^! 
 evidence an exemplification of the will of Jlollaml, taken ?,"',' n'l 
 from the records of the late prerogative office, riutcd the '-'ir^etu 1 
 19th of February 1683, whereby, amongst other things, he ii""n du 
 devised as follows, viz. "And all the r?st of my lands, " 
 VOL. n. 16 
 
 i>'n--
 
 122 i USES IN THE COI:RT OF MMT.AI,? 
 
 180 T . goods and il.ini!-. I giv< .I'.-l bequeath untoJofa 
 ^-~v > c>t ; timntv aforesaid, innholder, and ( 
 
 Hull 
 
 heii The vill '. -ealed. 
 
 and attt- 
 
 l Holland, (L S.) 
 
 "Si: '<-d and del'.M'ied, 
 
 in tin- pre-ence of 
 
 11 'in. Lvthnrp, 
 
 Jinn '< To i 
 
 Duma D. l\trkcs.'* 
 
 And thus endorsed: "June the ^d, 1683. came before 
 me ina/t/i/i /.tfii-i>]> and .'/, , tlie said 
 
 JLathntpe took h:> n-i -j <>i.il oath, that tlit- uithin \\as sign- 
 ed, M'ali'd and di -liu-ml, .-s the act and deed d{ i|u- >aid 
 George Holland, flnn Tovei/, uliua Jorc, t<Kk her loipo 
 ral oath that she did believe that the %\uliin >i^ned \\-as her 
 mark ihe >.ii.l Diana, ni'trtn - 
 
 '-Jurat corani mi Jimn . f<inLr<>lt!." 
 
 The plaintilV diij'.'itrd to th % >:iini > hcin^ <i|)i ird in c\i 
 dence, because it did not appear tliat the will, if cx.iiticd 
 at all. was att.->trd Uv the witne.-si-s in ihc prr-rru-i- ot'tli. 
 testator: and because it was not the original \\ill, and did 
 not appear to have been proved, so as to authorise the .-aim- 
 to be recorded. 
 
 C'IIASF, Ch. J. The court are of opinion, that the al>ove 
 cirrtinManre.' arc niatt-r- f l;. t t tn \w dt-fn mined hv th,- 
 : and that they may and ought, from the l.-nut'i ..! 
 time which has elapsed since the making of the will, to 
 presume that they were complied with. The plaii.titi' 
 excepted. 
 
 on cctuin rct 7 q' ne plaintiff then offered in evidt i 
 
 (,{ lit!'- Kll'l 
 
 *^', >.arrant obtained l>v Jf'altrr Tolhl tin the (",th <! .-Ciitcin 
 
 WMX P t 
 
 er \7^1. (in llHllitnir* /'fir/.: that 7W/y dietl a few month.-. 
 Jj^- ^i,,^. after the date of that warrant, and that Ihe defendant. 
 
 lio intermarried \\ilh the dan-liter of '/'"//'/, obtained an 
 h!ld w "^! k< ' al warrant on the 22d of August 1783, on the 
 
 Annual jnnirt- Tar nparU of 100 ypP, 
 
 
 iln.i tup. ^np-r. 
 
 I'tHi- ijftii. rd ihf i: i.i hit poumioa 
 
 bjr HT prr- 
 
 A li-r ml > 
 
 Mr a ung in Hi initial jrranfi. unJ until llie. failure oi 
 
 1 1' it ii, H |in-< in." 
 An tifhiai (rrant 
 
 .i/)K but 30 >tri kdviTMiry VOIHTMIUI, tan o tct a title acquired under le?I jrrnt.
 
 OF MARYLAND. 123 
 
 land, for want of heirs of George Holland, the grantee; 1807. 
 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 
 l.iiul, so granted to the defendant, is truly located by the 
 plaintiff ou the plots. The plaintiff' then offered in 
 evidence, that John Larkin, the devisee in the will 
 of George Holland, died intestate in the month of Fe- 
 bruary 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 execut- 
 ed by the testator to the heirs of Jlmo-i Garreft, 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 Eliza- 
 beth) 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, leaving Nicholas Maccubbin his son 
 and heir, and that N. Maccubbin died about the month of 
 March 1787, aged about 85 years^ leaving Nicholas Car- 
 roll (a), 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 pre- 
 sent time, no person has been known to have ever actually 
 possessed or claimed Holland's Park, claiming it as such r 
 except the lessor of the plaintiff, and the defendant, un- 
 der 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 
 (a) Name changed from /tfaccui&fl by act o',' assembly.
 
 CAH:> IN THK COURT OF APIM. ILS 
 
 1807. the Mill land, except um 
 
 it 'fully lived adjoining the -aid land during tin- 
 \\lnili-i.l' his lifts and was an old man .it (lie time of his death: 
 and also that the defendant. i> ;ia attorney ul -icat le^al in- 
 foriuatiun, and ha- been in the practice of tlie law for in 
 quite thirt; The defendant then read in evidence 
 
 the certificate and ^rant for Holland'- panted to 
 
 George Holland; amljja\e in evidence that Holland a! 
 1'T" ;;!!- died, h i\ inu deviled t!,i- land in fee to John J.ai 
 lln; that J. Larhin died, and lefi i--ue t\\ o children, 77(0- 
 t/*<M, his heir at law, and Hcxtir; that 7'. J.<irkin after 
 \-. anU died, leaxiiii: is-'suc an onlv child, a daughter, named 
 dVl^ftdhk whiih KHz<ilntln\\w\ \\itlui i--*i<-. That Iha 
 .r of T. JMrkin, .Mid aunt to Elizabeth, inter- 
 married uith a ceilain \irtiulti^ .\i> /mlfint. \>* \\hoin she 
 liad i-^-ue Sii>>ti,uni. her onlv cliild and heir at law. That 
 /HI. afiei- the death of Jhxter, intermarried with Za 
 tharluh Maccubl>in. bv ulioin >!ie Itad i>-ue A". Muccubbin, 
 \wr e! .1 law; that A". Ma'-i-itbbin, after 
 
 - .uli. died, leaving issue a son named A'. Car 
 roll, his heir at law, now in full life, living in the c itv of 
 .Innapolis. He also oflered ev ideni e to prove that Holland, 
 the patentee, ,7. I.<L ///. hi- devisee, and the before men- 
 tioned T. firkin, E. La din, H. Nidtohon^ S. Ma c cub- 
 '. Maccitbbin, and A*. Carroll, hii son, have several - 
 all times during their respective live-., lived and iv- 
 !"-ided in A ounty in this state; that the laud 
 
 called //n//rmf.s /V//A was originally located in ]iultinmr< 
 county, and th;t no person 01 per.-on- tver built on, im- 
 proved or cultivated the said land, or any part thereof, be- 
 Vfendanl in tliis cause in 177J, and the lessor of 
 the plaintilV in ;.art thereof which had been 
 
 occupied by a certain James fli'tims*, and tliat the P 
 of the land lay v.;--,te and unimproved. He furtlier i ti. i . (i 
 in e\i.lei... e ti,e ori-inal drbt book* of Ila/finiorc countN, 
 and entrie- therein of the ;;-eni- of t!ie Proprietary, on one 
 c.f which, vi/.. in 1; ,-Mtry in these words: ^(iid,- 
 
 ' Li Dr. T*> II >'!;, ,<{'.<< /'firL l.-io acie>, (".." and 
 
 -ite thereto the following -ntry, \i/. "Can't, find any 
 mth ;>er-on or land." And an entry on the */j/ roll in 
 the hud offte, made about the year 177?. in these winds, 
 
 -.M. Hth October, 1683, 
 for G'tcrjc Holland, above tl:e iiea-l ol f^'iij'o;'-d'.'- liver.
 
 OF MARYLAND. 125 
 
 150. 6s. Gideon Linthecomb. The bounds of this 1807. 
 land being lost, the land cannot be found; nor is there any 
 such person in being as Gideon Linthecomb." He also of- 
 fered 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 be- 
 fore referred to; and that it is the land located by the de- 
 fendant 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 state- 
 ment 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 de- 
 claration mentioned, under his escheat grant in 1798. 
 
 HASB, Ch. J. The court are of opinion, and so direct 
 t*he jury, that if they find the facts stated by the defendant 
 to be true, that the legal title to Holland's Park is in Ni- 
 cholas Carroll, the heir at law of Nicholas Maccubbin, and 
 that the said land not being escheatable, the plaintiff' is not 
 entitled to recover thesai<l land, in his declaration of eject- 
 ment mentioned, under tTie 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 sub- 
 sisting title in a stranger. 
 
 Possession is presumptive evidence of right, and the de- 
 fendant cannot be deprived of his possession by any per- 
 son but the rightful owner of the land, i. e. he who hath 
 the jus possession^. 
 
 A clear subsisting title outstanding in another, means 
 >uch a title as the stranger could recover on MI 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 ori- 
 ginal 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.
 
 CASES IN TIIK COURT OF API'KAI.- 
 
 18 '''ii: e of title: bui 
 
 being onlv a in the Proprietary, it 
 
 and if the jury 
 
 find the fat: - j die defendant, f of 
 
 a clear subsist in.; title in th'- h-irs cf <; trgt Holland, un- 
 der the errant to him. '.' fa /'<;/, having been legally 
 granted to '. : . ig i ,tu !.!'.. it his title. 
 and the title of hi- h"ir>, to the said land under his ^rant, 
 bt: 1 won. 
 
 The court are of opinion, tl;;:t if the jury find the facts 
 
 a been legally deduced from <'nr;c Hol- 
 
 ..if Holland's Park, to <'<im>IL 
 
 to Holland's Park now subsists in him. 
 
 irr were g. The plaintiff also offered in evidence, an entry on the 
 
 f 
 
 in the land o.'ii-je. m:ide about the year 1710, 
 . \i/.. '! : I/oft(in<r?, /''<//., surv'd 
 
 ! l:h October It /< or#e Ifv 1 ' ive the head oi 
 
 riv'-r. at a bounded true at the end of a par- 
 !l , < c 1 of land called /////'* forest, and now in possession ol 
 IOM, *. A f/!',i J.ihn Ford of .7. .L county." Also an extract from the 
 md otlice of the following tracts of land having been pa- 
 '. ''i (ented to George HnHand, viz. Co/.Y/'.s \tL r !ect, Holland. 
 Dinta.i, BoUdnfP* Delight, Holland and Holland's .'/ 
 Also a record of a suit brought by A r . Maccuhbin's i 
 VS. AJcilfurd* about the yar 17T)*), for estalilishini; the 
 bounds of a tract of land lyi:i: in A"< if countv, devised to 
 .- bv Col. fHi-hanl ' and \\!i'uh >uit was 
 
 tried at the assizes held in Queen-Anne's county. The de- 
 fendant then prayed the court to direct the jury, that if 
 they believe the fa' '') by him. that then 
 
 :-iption of Holland was seized 
 
 of Holland's Pat!; at the time of his will a:id death, and 
 the same land e, and no pre- 
 
 sumption from the I . | on the part of tin- plaintiff 
 
 i an .U-'IM', that / i- not seized of the said land at 
 
 the time of his will and death. 
 
 IIT directed the jury accordingly. The plaintiff 
 exec; 
 
 / . ! part for the defendant, 
 
 iont thereon for the plaintiff. P.oth partie- aj> 
 nut of appeals, and at November term
 
 OF MARYLAND. IS? 
 
 1805, the points arising on the bills of exceptions, (the four 1807. 
 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 
 
 Pinl<ney, Key, Shuaff 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, abolish- 
 ing 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 on the first bill of excep- 
 tions, 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 Pur- 
 chase. 2. That the Proprietary was liable to the opera- 
 tion of the act of limitations, and of adversary possession. 
 3. That he was therefore out of possession, and had mere- 
 ly a right of entry when the act of confiscation divested 
 )iim 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. Thai the want of office (bund, 
 or actual entry, was not supplied by the act of confiscati- 
 on, and consequently that the state's patentee had no righf 
 of entry, and could not maintain the possessor) action of 
 ejectment. 6. That as far as the Proprietary's right de- 
 pended on the escheat, it was aright 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 en- 
 try, to perfect it; that it was transferred to the state with 
 all its original and inherent properties; and conseqi' 
 was liable, even 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,
 
 128 < ^SES IN I UK ( oriil OF Al'Pr: \1.- 
 
 1807. 1 l!<m: \John*. 71. Kclltfx Lout- 
 
 $ M-i: . .ih. tit. / . '.n. :///, 
 
 448. /*,<>. '4. 4 CoAf, 48, 08. 
 
 On tin- -v c)/n/ bill of exceptions it was contended, 1. 
 That if the escheat of Holland'* /'ark had fallen at the- 
 time when Tolly's Pun-ltu^ \\.i- -r.mted. >o much of tho 
 firt tr.u t luded \sithin the true location of th. 1 
 
 latter would pas by the grant of the latter. !?,. And that 
 if the e.cheat liad not lall-:i, but fell afterwards >till the 
 lai't-i i;i:uit would ojieratc as an estoppel on the Lord Pro- 
 prietary, (who it wu contended \\a^ bound bv estoppels 
 lilvt- other person^.) 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 plainliH' under hi- ;rant ct 
 / CinnpleateJ. They cited AW/y*.v L^.iee vs. 
 Greenfield y -~ Hnrr. >\- M-//m. 101. 7?//.\.s-r//'\ : 
 
 -, 1 Harr. \ John v. 71. -3 Hlk. < Hi /"//. 
 
 M. 454, 435, pi. 9, 10; 48-2, pi. 1; 484. pi. I T . I ft Lilt. 
 45, a. . l.itt. sect. 58. 6 Mod. xJ58. I/nyn.- 
 
 t /tilthy, 3 '/'. /?. 441. 4th Snpp. to I'm. .///. 127 
 Fairtitle vs. Gilbert, 2 T. R. 171. 4 C'owi. 7>i>. 78, I 
 The ^ttornnj- General vs. Snowdeii, 1 Harr. Q'Johr^ 
 Mnalr vs. Ilnn-unl* in the general court, (see post.) O-r 
 ings vs. Norwoods Lessee, (mile 06.) Hai'-f.-his i-x. //</ < 
 
 i 7/ir/rr. ^ .!/////. 5 :."., (argument of counsel.) 
 (Mi the third bill of exceptions it \\;is contended, thai 
 the location ot" an CM heat grant was to h.- madr by ii 
 fTprcssions, and not by tliosc in the original grant. They 
 
 . r/.. Il(iin)iunl< 1 //(in: ^-./nfnr. 
 >. 14 /. %pl.8. 2 Kail. ./ 
 
 Hue. .'/!>. tit. G flints, (H.) 3 111!.. 
 
 . .-,so. /;</,-. AV. </). 3. /A./,. 71. 
 
 On ihi AJ./7A bill of exceptions it was contended, 1. 
 That the < <! did amount to a pre.-timpti- 
 
 fti in law, that the will of Jlollrnid \\as le-rall\ ev . 
 They cited // ' -m. Rep. 531. Crnff vs. 
 
 /'air 1 ftac. M. 50%. 2. 'Hiatti. 
 
 I' I'rai.iU \tend toihis country until after th.- 
 
 time when //nUtmd^s \\\\\ wa> proved. They cited ' 
 
 , lessee vs. Pearce, 1 Hnrr. <S- M'lltn. -:P. Cm-roWx 
 faster r*. Ll'irrllin, fl>id 162. 
 
 On the ttvcnlh anil eighth bills of exceptions it \vas con 
 tended, that Holland was seized of Holland's Park at th*
 
 OF MARYLAND. 123 
 
 time of his will and death; that the certificate of survey 1 807. 
 was four mouths 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. 
 M. 222. Pigott on Com. ftecov. 26. 
 
 The counsel for GUtings's Lessee, on the first bill of ex- 
 ceptions, referred to the acts of October 1780, ch. 45, and 
 ch. 49. 2 Hawk. 448, ch. 49, s. 1,2. Bro. Ab. tit. Prero- 
 gative, 143, b. pi. 91. Ibidiit. Devant, 109, a. pi. 34. 
 Saoil, 7; (18th case). Ibid 70, (145th case). Stanf.Pre. 
 54, a. 2 Roll. Ab. 184, pi. 1, 2, 3, 4. 4 Coke, 58. Tay- 
 lor vs. Horde, 1 Burr. 60, 
 
 On the second bill of exceptions he cited 10 Fin. ^M. 
 470, pi. 9; 482, pi. 1. Co. Lift. 47. b. 352. a. Haiti's 
 Lessee vs. Polk, 1 Harr. ft M'Hen. 363. 
 
 On the third bill of exceptions he cited 2 Shep. Ab. 281. 
 14 Vin. M. 80, pi. 21; 83, pi. 41. 2 Eac. Ab. 661, 662. 
 liac. El. 86. 2 Mod. 3. Bulst. 177. 2 Leon. 235, 
 Trapp's case. Clayton, 14, Bradford's case. 3 CoA:, 9, 
 Dowtics case. Brownl. 42. 
 
 On the sza?/A bill of exceptions he cited Collim t>s. Ni~ 
 cols, 1 /farr. 4- Johns. 399. 
 
 On the seventh and eighth bills of exceptions he con- 
 tended, 1. That the escheat grant to the lessor of the 
 plaintiff gave a presumptive right* and w&s prima facie evi- 
 dence that the land was liable to escheat; that it was not 
 shown by the defendant below that there was no such pre- 
 sumptive 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 plain- 
 tiff, 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. ritlf. 
 VOL. IT. 17
 
 130 CAH> IN THE COURT OF APPEALS 
 
 1807. Tin \ \'.s, at the present terra, affirmed 
 
 rU of the (uMUT.il Court on both appeal*, con- 
 lunin^ in r.i? opinions pronounced in the several bills ol 
 
 TiL".irr.\N, J. gave no opinion on the third bill of e\ 
 ceptioos. 
 
 DECEMUF.R. II \\:MO\D. ct it!. I.essei . -.KIS. 
 
 A dei tocotH i AJTF.AL from the General Court. The appellant brought 
 "" "'; "'"' ,': ot an action of ejectment for a tract of land culled Part of 
 
 MNWVTlWuVU Uy *' 
 
 : in Frederick county, containing 
 !!r,n,uJ 'ho* "j - : T!;(> di-!Vndant, (now appellee,) took del 
 
 !"* Vi,i!ty 11 "'arrant under the ueueral issue plea, and by his loca 
 OK the !' 1. lefi-n:led himself under his ti- 
 
 landtall '.? Freehold. ie-.rvejed 
 
 htr on t':u- 12th June 1785, an-1 granted to 
 i -it on tli -M->tnib:'r 1800. The cause 
 
 i-iifi. i " was tried \\\ ' .\\ court at Mavtorm 180.1. 
 
 1. Ti;" | 1 '.iii'i:!' !i;ivin^ located on the plots a deed from 
 v r lai " 1 ""' fi-in L ol'ered to read in evidence 
 
 in iiTiri,-*!.- .,t' 
 
 .'ember 1753, beinc 
 
 ' \ Cli 
 
 > ;. of mortgage, conreying 
 
 1 "of h ih - ^ un * '''" " ' two | )i:n ' 1 ''^ >f land, being parts 
 
 of liiid fi!!.-d H'onTa fnrhwre., and sold to the 
 
 ;; -ai ! ./ /, one parcel containing 
 
 U..-.1 lo lak-- U|i v-t l:i-id. tot OUt 
 
 nrrrjr- 
 
 .ii i!nr ruin,. 11 paid; ind 
 
 :i|Micart that hi ci 
 
 il mi s 
 . is imiil ii|nin 
 
 ('iri'li.niT willi iiit 11 
 
 . %u|. nr-, I'mt 'iy tl> 
 of Ihr Un'1 office iHr 
 
 - 
 
 i nil in- 
 
 - illy lit- 
 iii.l -r Iiit i;rm in 
 
 iC ort "T trict,)Uli-int c f >"rPt or (tiUc. hul n f n-inj to >nn- 
 
 , ii. t'i MJI|I irt id. 
 
 'ie Hft rr<-. or to 
 , the 8fi acrr 
 . 
 
 "Hit of Ihr lind liir wlnrli 
 ilainlifl 
 
 
 ill i|it hii pir 
 irjr riniKM fmj a In i '., it they find 
 
 '"nriitiug i> lo be fu<in<l '* 
 
 .1 til . UICI ffn.ulli
 
 OF MARYLAND. 131 
 
 8G acres, the other 94 acres, as by deed duly made, and 1 807. 
 recorded in the records of Frederick county, appears; the 
 said two parcels of land being also what the said J. How- 
 ard's dwelling plantation is made upon; also all that tract 
 of land called Chance, lying in Frederick county," &c. 
 To the reading of which deed the defendant's counsel ob- 
 
 O 
 
 jected, upon the ground that being a mortgage, the plain- 
 tiff 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. 
 
 The court think the objection by the defendant's counsel 
 is not a valid one, and that the deed may be read in evi- 
 dence of the plaintiff's location of it on the plots. The 
 defendant excepted. 
 
 2. The plaintiff then read to the jury the deed from /. Thc , ckrk nf a 
 
 *>. court lins no au- 
 
 Howard to P. Hammond, with the permission of the court, ].';.';;;[> 'Ij 7 ,-, 1 ;.*^ 
 (though objected to by the defendant,) as evidence that the l!;Ltl' e liii'.iml'u 
 deed was located upon the plots. It was admitted by the SaSfni' * w '" p ^ 
 parties, that Wood^s Lot and WoodPs 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 J Toad's Lot or /food'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 s.iid count v, 
 from the commencement of the said county up to the veai 
 1775, there is no deed, bond of conveyance, or other in- 
 strument of writing, from Joseph flood to John Howard, 
 for or respecting the land called Hood's Lot, or 71 / 
 Inclosure, except a deed for ninety-four acres." 
 
 (a) Done and Sprigg, J. concurred.
 
 132 CASES IN THK COl'RT OK Al'I'EALb 
 
 The plaintifTs counsel objected to ti:r reitifu;ite liv tl.o 
 clerk of frnltrick county court hriiiu, n-.al in -\idence f 
 because. they contended, it was not tin- dut\ <l tht tleik 
 to certify that there were no dccdx remaining en innrd in 
 \\\> office; that his duty va- to ^i\c exemplifications of 
 Mich as iiii^ht appear on in urd. That the clerk ought to 
 have been .,?'/.;/'</, if the party wi>hed tlie benefit of the 
 evidence ottered, and examined him as a \utnes, whether 
 he had searched for, and could not find siuli d 
 
 CHASE, Ch. J. The court are of opinion, that the certi- 
 ficate given by the clerk of Frtdiriil, rounty court is ille- 
 gal and incompetent evidence, and refuse to let it be read 
 to the jury. 
 
 The clerk has no authority by law to certify a fact un- 
 der the seal of the court of which he is clerk. Hi- duty 
 is to grant exemplifications. The defendant excelled. 
 
 r.roi rri.iene 3 The defendant then ottered evidence, [a wilncss In 
 
 ot aitmiuru to 
 
 ofUnU 1 "i l uciudrf P rove the confession of J. Howard,'] that the hind called 
 
 'S^fSsS?*' 1 f Woofs Indosnrt, included in the certificate. 
 
 RKm^ thereof, made for J. Houimi, and dated the 5th of March 
 
 under which the plaintiii thiin.s title, in \<T was ac 
 
 tually Minr\fd under the warrant uhercon that certiiic..;o 
 
 is allf.ed to t)o founded; that the certificate was not made 
 
 by /<-,> i!;e th-Mitv -nr\e\i;i of Ffi'lirirli county, 
 
 or bv ;inv t.'hir pei-cn duly authorised to make the >ame, 
 
 but that the s: i:iale b\ J. I/ward hin^ell, by re- 
 
 . iher. without any actual ui\e\. 
 
 Cn\-). Ch. J. The court rcfiiM' to let the defendant 
 give the evidence ofi'< -red, or an;, reof, to the ju 
 
 ry, (a). The defendant exc . [ .1- -d. 
 
 rri odmre 4. The plaintifl', to make title to the land in the decla- 
 
 Jmi'tnl, th ihr ' ... 
 
 ,,i IK ration ol ejectment mentioned, read in evidence the war- 
 
 C-|H, to |. 
 !. |>rarfic^ 
 
 tn-l U'nr 1 c,l 
 
 A r< M.IIII.II rii, .- IIT unrnliirttcd vacant land in llir count}-, if no pcnon hai 
 
 >:ilr<1 vm ant lainl. in lm ', mil qumtity i.f acn* 
 
 rr 4*i|(i>ati <l mil ih<- |r'jr p>>< thr compwi'inn IMM| *t the lunr of obuiiunf: iU<- nmint. 
 
 A n:if >,\ r-i.' a tnrt or |wrci-l nl land n 
 
 tte |*tj kM fee . [mrty thcirby cquirrt right > 'juUmf 
 
 >Jil.t llUlll. 
 
 a warrant of murvr)-, not havinr title to the oririnal trnrt rrurvryrd,ar- 
 
 a warrant of murvr)-, not havinr title to the oririnal trnrt rrurvryrd,ar- 
 quin pi<l; anil hn 
 
 ,'>..ii,.- 
 olHirv.), not con.- 
 
 rr>nt thrfrll i ,'>.. 
 
 land < 
 
 (a) Sr /famine fid ct ul. Ltuee v. Skertdi*e, 4 Ilarr. 
 \ Hen. 420.
 
 OF MARYLAND 133 
 
 rant of resurvey which issued to Jolm Howard, on the 
 6th of February 1755, "to resurvey part of a tract of 
 land called H'ood's Incloaurc, originally laid out for 
 86 acres, to amend all errors, and to add tlie contigu- 
 ous vacancy," &c. Also the certificate of survey, dated 
 the 5th of March 1753, made in pursuance of Hie warrant 
 of resurvey, stating, that k 'by virtue of a special warrant 
 of resurvey granted to John Howard, to resurvey part of 
 a certain tract of land called Jfoo. //<?, originally 
 
 Jaid out for 86 acre;;, l>oaring dale the Gtii of February 1753, 
 to resurvey the said land, to amend all errors, and to add 
 the contiguous vacancy," &c. The survey or, Ixuac Brooke. 
 certified, that he had resurveyed the land, and found no 
 error; that he had added a piece of contiguous vacancy 
 containing 2200 acre,s, "beginning at the original begin- 
 ning, and running thence with the original N 68 W 54 
 ps. N 19 W 60 ps. then S 8 W 81 ps. S 53 E 48 ps. S 
 52 W 98 ps. N 25 W 38 ps. N 23 AY 80 ps. N 5 W 
 106 ps. N 36 E 95 ps. to intersect the beginning of the 
 N 7 ]J E 130 ps. course of a tract of land called Howard's 
 7?//ife, and running with said courses N," .c. &c. ''con- 
 taining 2286 acres of land." Also the assignment of How- 
 ard to Philip Hammond, on the 29th of November 17 Jo, 
 annexed to the G3rJ.jfica.te of survey, whereby Howard as- 
 signed 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** Inclosurc, originally taken 
 up by Joseph Wood, together with all his (the said Hou<- 
 ftrd's,} right, &c. of and in the said certificate and the land, 
 which by resurvey contains 2286 acres," fyc. Also that 
 the certificate was examined and passed on the 6th of March 
 1754; the composition money paid on the 7th of March 1 754, 
 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 SOth of January 1772, car ceded 
 by Philip, Ilezin, and Matthias Hammond', on the 1 6th of 
 March 1772, caveated by Edward Horsey, of John; on the 
 29th of October 1772, caveated by Thomas Horsey; that 
 the caveats were dismissed by the act of April session 1782; 
 that there was an entry in the margin of the book, iix. 
 which the warrant was entered, that a caveat had been en- 
 tered by Grcenbury Ridgchj, and others, in 1754, and 
 which had not been noticed when the other caveats were 
 entered dismissed, and a list thereof forwarded by the re-
 
 * CASES IN THE COURT OF APPEALS 
 
 1807. nptrr of the land office; that the last mentioned caveat of 
 ; / ar>/ Kiiiztly was withdrawn by liichurd liidi.'ili/. 
 ri and heir at la\\, and that patent had issued on the. 
 9th i, I" >eptcmber I7 ( .!(> to J'liilijj, Xcin. and diaries Hutn- 
 inond, and liichard Ilcj /ii/.s ami JJunna/i hi* wile. Al-o 
 the la-t will and tou.iiu i.t of / J /< /'///; Jhninnontl, (the elder,) 
 daicd the 6th of June 175.', therein it dot- n< t a|.j.i\ir that 
 the land called Part oflfootfs Inclosurc is mentioned, but 
 by his will '"all the ie>t and residue of the real and | 
 -mini e-iuTe" of the UMator, is de\i?>ed to his si:\ son*, 
 r/W/f.v, Joint, Philij,, Jhntot), Jtcin and A/<///AiV/.v, to be 
 equally divided between them, and their heii>, as tenants 
 in common. The plaintiff' also offered in evidence, that 
 P. I/anniwnd, the testator, died some time in the year 
 17CO, and that Charles Hammond was his elde.t >on and 
 heir at law, to whom the title which J\ H<i}i,n'<<ntl, the 
 father, had in the land, descended, and who became enti- 
 tled to all the interest his father had therein (a). The plain- 
 tiff then deduced a regular title from C. Hunnnond, down 
 to the lessors of the plaintiff'. Also that the tract of land 
 for which this suit is brought, as well as the several tra 
 or parcels of land described in the grants and deeds afore- 
 said, arc truly located by the plaintiff' on the plots. The 
 defendant then ottered evidence to prove, that there I 
 no tract of land in the county of Fredtriik puk-nki 1 by 
 the name of I food's Inclosure, or so called in the certiii- 
 . for the same; that a tract of land situate in I ncuick 
 countv, y\as on the 10th of January 1748-9, resurve 
 for Josejih /Joorf, by virtue of a warrant of ie>ui\ey dated 
 the 28th of July 1748, and patented to him, the l^t of 
 June 1750, for 1540 acres, and called in the certificate and 
 patent thereof, ff ood*s Lot; that this land did afterwards 
 acquire, in the neighbourhood where it lay, the name 
 ; '.t /ncloattrc; that a tract of land contiguous 
 thereto, Mir\--\ed on the 12th of November 175:2, called 
 Tin . and located upon the plots, did actually 
 
 begin at the end of the i'Jth line of Wood's /,o/, but in 
 the certificate t Us to begin at the end of the l')th 
 
 line of Wood's Inclosure; thai several me-ne u>nM-\;mce. 
 
 (a ) The counsel for the plaintiff, in thin part of the statement, 
 which fhry had drawn up, stated, that ('. J/ammnndhid hrcome 
 ft tt\it<\ jinnil In potlutat." to which the counsel for the dcfend- 
 ecicd. THK C ounT'aid tifseexprf-i(.n- xvric only pr\>- 
 per w II.TC* / K nl title dei>cends In this case an equitable tide only 
 descended to C. Ilammoii-f.
 
 OF MARYLAND. 135 
 
 for parts of Wood's Lot, executed by the proprietors 1807. 
 thereof between the years 1754 and 1759, call and des- 
 cribe the land by the name of Wood's Inclosure. The de- 
 fendant then read in evidence the patent to Joseph Wood, 
 ilated 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 /. Howard never had any inte- 
 rest in, or title to, any part of Wood's Lot, or Wood's In- 
 closure, either in law or in equity, except as to 94 acres 
 part thereof, which 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 in- 
 strument of writing of any kind, from J. Wood to J. How- 
 ard, respecting Wood's Lot or Wood's Inclosure., the plain- 
 tiffhaving on the trial produced no such deed, bond of convey- 
 ance, 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 W'ood'a 
 Lot or Wood's Inclosure, except the before mentioned 94 
 acres. Also that the 86 acres of land located by the plain- 
 tiff upon the plots, as the original upon which the resurvey 
 called Part of W r ood'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 pos- 
 session, occupation, and actual user of/. Wood, the paten- 
 tee, by actual iuclosure of part, and by cutting and using
 
 i ISES IN niK. KHin (! MM'KALS 
 
 1907. ! during all that time 
 
 ; 
 
 . 
 
 Ill 'I. \ 
 
 i e.Vti to th 
 
 1 . . . the like ; :unl 
 
 ocrupaiion (if the ti under 
 
 ./. . 'i ! n.it and T anv ti 1 ir from 
 
 ./. //>.'/vn-.f. The d ' in e\iden< e :i deed 
 
 /torn//, for part of ff oorf* 
 , dated the "2U(li of .hint' 1 T. 1 
 ii of .I,iii' ir^o, ifon.l iiiul convey- 
 ed tn part {f rr.vj r.v A 
 
 had is- 
 
 tin* laud. In t.'i" nanx- of ffootfs Luf, 
 although commonly called and k'i rvn t>y the name ot 
 "v //?(7(s\vrc. Thi- .nfinn 
 
 hc title, ice. \N"iiii 1. . c.n tlic plot- 
 
 as lii'jinnin. : bv vi-llo\v litu-s. Thai 
 
 I757i /-' nStaiurd a uprdal 
 
 H-tin-tin! to 1 
 
 to him, which > that he \\a> M-i/.ed in fee of 
 
 .-iiid in .?K4 acres of land, jiart of /^oo<r. Zo/, lying in 
 frederlck county, originally, on tlte 1st of June 1750, grant- 
 d !v p.i f i-'i! ol 'r:i to Jos* nit I food for 1540 
 
 .u ri -, co!iii^!|i!!i^ to which he had di-co\ eri-d some vacant 
 land, and bt-in- !r^::n-.i> to add the same, prayed a special 
 i ian; to rvMirwv hi- part of the -aid tract uarrarn 
 
 Kited to him, ,\ .,ade f.,i 
 
 H< ^ i he 18th of Fehrnarv IT.l.S, in 
 
 i ant, bv which certilicale it api 
 
 that the vii'l y, cotitaine-l oidv 
 
 ^>'" .nd \\ere add.'d. 
 
 :ind tailed Thr /.'., vr/ /,</, contain 
 
 tO 1'.. /Ai/'.sr// f,,l the -aim- 
 
 l.i:id, I). , of Feliniary 1758. A!x that 
 
 the lfth of 
 
 - '' nded (o hi- heir at law 
 the land so m-anted to ['.. 
 1 '! ihe plot- l>e^ : rininj: at B, and 
 lie ! - IVnni I to .IS, red li - 
 .-f e,i< h line uith r- ! P A\" I. 
 :inj;im- 
 i
 
 OF MARYLAND; 137 
 
 Woofs Lot, from the date of the. certificate thereof, un- r '1807. 
 der the aforesaid title, down to the bringing of this eject- 
 ment, part of it in cultivation and under actual enclosure, 
 and part being in woods uninclosed, by cutting, using 
 wood on and therefrom; and that /. Howard, or any per- 
 son 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 call- 
 ed Part of Wood's Iiidosure. 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 of- 
 fice, 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 was seized of an estate of 
 freehold in the original whereon the resurvey was made. 
 That by the law, practice anxl usages aforesaid, from the 
 time aforesaid, if the person so having returned a certifi- 
 cate, and had by the same included vacancy, and had paid 
 tt) the officer, entitled to receive it, the full amount of cau- 
 tion 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, 
 i-f 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 certifi- 
 cate was made, nor any one claiming the certificate, had 
 any legal estate or seizin in the original on which the cer- 
 tificate of the resurvey was made, that then the prior certi- 
 ficate 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 va- 
 cating the first certificate, the party claiming the same 
 would 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 propre^ary 
 instructions given, that a person taking out a warrant of 
 VOL. n, 18
 
 i kSBS IX THE COfRT OF APPi. \ 
 
 1807. resnrvrv on lands of which ho was not vi/.ed in fee. mid 
 in virtue of that warrant including vacant land and com- 
 pounding for the same, \\hich prevented such person from 
 having a patent for such vacant land. 15ut that it was the 
 under-landing ami practice of the office, in hi* lime, that 
 such patent would not be allowed. Ho knows f no usa^e 
 or instance, in which a caveat has been hoard and deter- 
 mined unless the caveator did show an interest in the 
 lands at the time. He does not kno.v any instance in 
 vhich 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 the time when the moncj 
 - paid, but has understood that any lands taken by ft 
 common warrant, special warrant or warrant of r. 
 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 
 inade a question where the party obtaining the certifi- 
 cate had no original; but that where a certificate of 
 junior date, regularly made and compounded on, includ- 
 ing 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 un- 
 derstood the payment of composition money under such 
 circumstance- \\a-au unimportant circumstance. He does 
 not recollect any case when- a person has entered a caveat 
 alleging himself sei/.ed of the original, on which tli<> war- 
 rant of resurvey issued to another person. Interro^dfi 
 Were put to Mr. Cuffa.'ian by the plaintill'and defendant, to 
 which he answered in the manner set forth in Kilty's Land 
 Holders rfasixtanli 456, 457 and 458. 
 
 The plaiiitifl'thcn ollered in evidence that the said Cal- 
 lahan, entered into the land office, as a clerk, in the year 
 1?C7, that at that time in/Ham Xtniart was the chief 
 clerk, and so continued till the year 1774, when Durld 
 Sltiuirt succeeded him and continued to hold that office un- 
 til l77Tjthat Saint George Prule was appointed iv-Uirr 
 of that office the 21st of April 1777, and so continued till 
 the y'.-i r 177'.), when the said (Wuhan was appointed; and 
 that during the time Jf'illiam Steuart was the chief clerk,
 
 OF MARYLAND, 130 
 
 Saint George Peak was principal acting clerk under him, 1807. 
 and also under David Steuarl, 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 436, 460 to 465. Which 
 evidence was delivered by the register of the land office for 
 the westerii shore, a,nd 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, by con- 
 sent 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 Holders Jissitstant.~\ The de- 
 fendant then offered to prove, that the certificate for Part 
 of Wood's Inclosure had never been returned into the land 
 office, until after E. Dorscy had obtained his patent for 
 The Kesurvey on Part of Wood's Lot, to wit, till after the 
 18th of February 1758; that E. Dorset/, and those claiming 
 under him, have regularly paid the quit rents upon the 
 Avhole of The Rcwrvc.y on Part of Wood's Lot, from the 
 18th of February 1758,, to tha commencement of. the revo- 
 lutionary war between the United States and Great Britain, 
 and have ever since paid the public taxes and county levies 
 airl dues thereon. The plaintiff then prayed the opinion, 
 of the court, and their direction to the jury, that the pa- 
 tent which issued on the 9th of September 1796, to Philip, 
 Jiczin, and Charles Hammond, and Richard Hopkins, and 
 Hannah his wife, will, by relation to the date of the certi- 
 ficate of survey, be effectual to pass a title to all the va* 
 cant land included therein, notwithstanding 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 resur- 
 vey aforesaid. 
 
 Martin, (Attorney General,) Key ami Johnson, for the 
 plaintiff', cited 18 Vin. Alt. tit. Relation, 289, 290. Gar- 
 retson's Lessee vs. Cole, 2 Harr. fy M-Hen. 459. How- 
 ard's Lessee vs. Cromwell, I Harr. $ Johns. 115. Gib- 
 son's Lessee vs. Smith, Ibid. 253. Lloyd vs. Gordon, 
 2, Harr. M'Hen. 254.
 
 440 CASES IN Tin-: c orivr OF APPEALS 
 
 1807. Sheriff. Mti^tn and liurpcr, for the de Ictidatii, cite<! 
 
 L//. 150. a. litnggoltTs /.msec vs Mahll, 1 Hurr. $ Juhnt. 
 
 3 r. ./,--. . ;. 5 ,'M. .i!4. j 
 
 fin/ r* .'/4/i, Ilnd 340. . M. (3d part.) 1 -; 
 
 151, 152. nit: !m's Lessee v$ Cockry* 1 I Inn: .v Mullen. 
 234. 5 Afr. 28J. J'ent. 89, COO. fV/i. /. . ffjft 
 10 Cofcf, 49. ////' Lessee r* Polk, 1 7/arr. ,, ../// 
 GG3. 5 lilk. Com. 43. 2 /to//. /, 
 
 18 Ho. .46. tit. If Italian, 290, pi. 8. Ae/U't/J r AW/r/u, 
 2 /?t/rr. 1134. S. C. I H". /^/A. /.'c/?. 2 . 
 ''ifffit***. Burr. 1902. DoevsKoc, Ibid 1971. 2 7,W/. 
 ^6. 599. Garrtlson vs Cole, 1 Harr. $ Johns. 370. I>cuir* 
 Lessee vs IJcall, Ibid 347. j'clcr's Lessee ts JJ/m/i.v, 4 
 7/arr. 4' M'Hcn. 423. Cheney vs Ringgnld's Lesser* 
 (ante 87.) J Test's Lessee vs Hughes, 1 Harr. fy Johns. 
 13. Lloyd vs Tilglmwn, 1 I/arr. 4- M'Ucn. 85.. 
 
 CHASE, Cli. J. In deciding the question before the court, 
 it will be necessary to consider the efficient qualities of 
 the diflercnt kinds of \varrants \vUicli are used to take up 
 vacant land, cultivated or uncultivated. 
 
 A rr.mmoH warrant may be located on any uncultivated 
 land in the cnuntv, to the surveyor of v.lm h the warrant 
 is directed, if no person has acquired a right of pre-emp- 
 tion to such vacant land. 
 
 A special it-arrant is used to a Beet cultivated land, 
 in which the location and the quantity of acres arc dc^i^- 
 nated, and the party pays t'oc composition monov at or be- 
 fore the time of granting the warrant. f<:r the number of 
 acres so directed. The s-Urvey is l!)"ii m:;<!r u ilhin the 
 
 :;il time of si;? TJJO; '.ilninp: with nioio c 
 
 litude and precision the land thus affected. If on the - 
 vey being inade it appear; to the par'y that he has not as 
 tnuch land as he paid for, he can rpp'y the surj Ins of his 
 ;nt to afloct any vacant land, which a common war- 
 rant i competent to take, whether it lies in conti^ti 
 detached from tiic land ho located in his warrant* 
 
 A warrant of rr.tr/rrn/ is taken out for the purru-.- 
 resun-eyinp; 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 n 
 ty, and if he makes his survey, and pv* the caution mo- 
 ney within two years from the date of his warrant, he has 
 a complete equitable interest in all the vacancy include*! 
 in his MI:
 
 OF MARYLAND. ill 
 
 The question for decision now occurs, can a person, 18C7. 
 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 ope- 
 rate 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 
 1734, when the composition money was paid, in all the 
 vacancy included in his resurvey, and that the patent ob- 
 tained in 1796, and granted to Charles, Philip, and Rezin 
 Hammond* and Hannah Hopkins, wife of Richard Hop- 
 kins, 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 Ed- 
 ward Dorscy obtained his grant, which is stated to be on, 
 the 18th i-f February 1758. That, in the opinion of the 
 court, unless that fact is found by the jury, Edward Dor- 
 sey was a fair purchaser without notice of the equitable 
 interest of John Howard, and the grant of Edward Dor- 
 sey cannot be over-reached or defeated by relation. Tho 
 defendant exceptcd. 
 
 5. The defendant then prayed the court for their opinion Thrronrt **,, 
 
 f * eel to c!ir< rt the jiv 
 
 and direction to the jury, that if they were satisfied from "v,*! !",',. fj^iimm 
 the evidence, that by the rules and regulations of the land f^^JfH^ 
 office in the year 1753, and since, the certificate of resur-^";l" fK ^, 1 ( !'; )fres | 1 ';. < I 
 vey, under which the plaintiff' now claims, was liable and SI' T^ptatatM 
 subject to be vacated upon a caveat, notwithstanding tNt feb?vBcat?a upon 
 payment of the composition money thereon, if J. Hoicard, ""pM\\inn m,* 
 
 f i ,i iii ... ney wiw paid there i 
 
 for whom the same was made, had no estate or seisin m<>... if ,r. H. for 
 
 ... . vhnm the same 
 
 the original tract, so resurveved, and that upon the certf- v^nmcu-, i^d n 
 
 . e-t;iic nr seisin in 
 
 ficate being so vacated, the vacant land ao included therein, t|ie " r '" 1 " 1 tr cr 
 
 ' 'and thai npr.n the 
 
 and also included by E. Dorsey in his certificate of re- y^f,'^" 1 ;.** 
 survey called The Resurvey on Part of Wood's Lot, as J^ 1 -?, 1 ;' 1 ^ "^ 
 above stated, if the last certificate was compounded on in "nin^ju'Iiorfei^ 
 time, and in all other respects conformed to the rules and "',!;,, ,^ if on co f n - 
 regulations of the land office, might legally, properly and ^"Ji^t^i 
 regularly, be granted to E. Dorsey, and beinc; so granted, ^m^&h" 
 lhat the plaintiff had no title under the grant for Part tflKS&f&m^i 
 Wood's Inclosnre to any part of the land so included land''***" included 
 within the patent to E. Horsey for The Resitrvcy on JPirf D'.' egl * n 
 of Wood's Lot.
 
 
 143 :x TIIK ronrr OF 
 
 1807. OHVSK, Oh. J. The court cannot ^he t!ie opinion and 
 
 direction pr.ned for. The defendant e\ v epted. 
 
 G. The plaintift then gave in evidence the patent o^ 
 JL, 4 CtL r pJrt Ho 01 ?* l i granted to JOHJI/I Hood on the lioth of 
 M.uvh 1747, ' I ul land. Also a rpBTOJ 
 
 m.'h.lihVr mat ^ thereon by //W, a:ul the patent granted to him on 
 ;;"',;; tlie 1st of June 1 750, lor 1J40 a. ,ud, and called 
 
 the MIU tii- ,. / i , i 
 
 ,, MI fatal Hood a Lot; and that t!ie >a;uo land.-, are truly located on 
 iii.- the plots. Also, that the rexmvey called lluod'a Lot, 
 a- known in the neighbourhood by the name of / food's 
 i,a i- 1 . u,,,u,,.r, hiclosttrc and that I food's Lot. the resurvev, and // 
 
 . lu - ' 
 
 /ticlosurc, were one and the same tract of land. Also a 
 
 ol ibc "iici . 
 
 riificate of resurvey made by J. Howard of I'urt of 
 H ova's /nclosure, surveyed on the 5th of March IT 
 He then deduced the title to the said land down to th 
 f thu plaintiH'. He then oil'ered in evidence the 
 deed dated the -2lst of June 17JO, from J. It ood to ./. 
 J/iiH-nrd, for 94 acres of lund, being part of Wood's Lot, 
 and called I food's Inr.losure} and that the same is truly 
 located by him on the plots. Also a deed from ,/. ffood 
 to . Dorsey for a part of Wood's Lot, dated the 0th of 
 June 17o4; and that the same is truly loca'.'d by him oiv 
 the plots. He then produced, and ollered to read in -i- 
 dence, the deed from J. Howard to P. Hammond, dated 
 the <th of September 17.33, herein before mentioned in 
 the firtt bill t exception-.; and showed, that the 8G 
 acres of land therein mentioned, were locaied by him on 
 the plots, bejnmnu; at the. end of t!n :27ih line of // ood'& 
 J.t, as located by him at black u, and runninjr, ^r. to the 
 bejiinuinj;; and to prove that to be the true location thereof, 
 he offered to j;i\e in evidence the deed, and the reMii\ 
 made by E, l)ort(y on the 18th of February 17.TS, on the 
 land MI r.onveved by ./. lYood to Darm-y, and calleil The. 
 Part of Hoods Lol: and that the resurvey is 
 truly located by him on the plots: and tiut the foth line 
 of that i -trikes the end of the third line of the 
 
 8G acres, ami then runs three line-* 'hereof icver>ed to tho 
 i the 86 acres, and thence to it> be^innins; at 
 black //, -x( ludin^ thp 80 acre*. lit- I ".-red to 
 
 prove, t the death of A'. /ir.->ei/, tin- land contain- 
 
 ed in ihe last mv: -ion-'d i led 
 
 to '/'. L> i-.-.ij iu'.s ln,ir. Al>o thai the devisees of /". huin-
 
 OF MARYLAND. 143 
 
 fnoml, the assignee, claimed the land contained in the cei 1 - 1807. 
 tilicate, so assigned, as personal property, and that C. Ham- 
 mond, 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 6. Hammond on the cer- 
 tificate, 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 in 
 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, and vanning*' &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. 
 JIammond to B. Warfidd, conveying all his right and in- 
 terest 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 War*ield 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 de- 
 visees, 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 7'. Dorsey; that both 
 C. & /. Hammond departed this life antecedent to the 
 22d of June 1784, and that It. Hammond was the son 
 and heir of /. Hammond; and 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. Dorsry, con- 
 veying to him all his right and interest in the two parcels 
 of land. Aod that 1. Dorsey, so being entitled, as heir
 
 i LSESIN THE COURT OF APPEALS 
 
 07. ht law, to the lands contained in the reMir\ey made by -E. 
 
 //, ami having so purchased the two parcels of land 
 mentioned in llic deed t'roin J. Howard to the first men- 
 tioned P. Hammond, afterwards, on the 7th of Septem- 
 ber 1784, entered into a contract in writing, under seal, 
 v. itlt Thomas t'.^hcr, for the sale of certain iamK and 
 among others, the 80 acres, and that the Mi acres in that 
 contract are described as being purchased by /'. / 
 in his life-time, on the i'th of November 1731, of a certain 
 J. Howardy and as liaving been bought by T. Dot 
 the devisees of P. Hammond, and as having been sold by 
 J. Howard to P. Hammond, and purchased bv T. Ihmr.yi 
 and having proved the execution of t!ic contract, offered to 
 read the same in evidence. He also o Re red to uive in 
 eudence a deeil from 7 1 . Dorsey to T. Usher, dated the 
 10th 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 
 j)lots by the plaintiff, and do include the whole of the 86 
 acres as located bv tin? plaintiff, and that one line thereof 
 
 s the second line of the 86 acres, as located by the 
 plaintiff, ar.d 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 o its beginning 
 at black a, and thence to black //, the beginning of the 
 deed; and that in the deed there was a covenant of war- 
 rant v as to the parts of the n-survcy on U'ontFt Lot cnn- 
 
 ! in the said deed, against 7'. Horsey, his heirs ;:nd 
 
 MS, and against J. Howard, and his heirs and ;:- 
 only. Also a deed from T. Dorscy to T. t'.v/ifr, dated the 
 7th of May 1785, for the same lands, describing tin i;> in 
 the came manner, but containing a general warranty. And 
 that T. To.'.'n did, by \irtueof the deeds to him, 
 into and take possession of the lands so conveyed I 
 JJoraey, and among other parts thereof, of the bG acres, so 
 bold to him by T. Doracy, and so located, and made a re- 
 survey thereon, and returned a certificate of resurvey, 
 dated the 12th of June 1785, called I'xher'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 tl.e >ame at the same place, and running 
 with it in the same manner as the t!ced IV in T. Dorsey 
 to 7'. I Jtcr, aud that 7'. i sAcr was possessed of the land
 
 OF MARYLAND. 14.3 
 
 so contained in his certificate, until his death, which hap- 1807. 
 pened about January 1780. That T. Usher, by* his will 
 appointed T U, .V ,7, J U, & J I), 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 tescamentary. That 
 after the death of T. Usher, one Jo/in Salmon filed a bill 
 in the court of chancery against the devisees and execu- 
 tors 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 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, Uvher, and by her sold to the defen- 
 dant, who entered into and possessed (he same under that 
 sale. That it was agreed that the patent upon the certifi- 
 cate 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 respec- 
 tive 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 saies under the decree. 
 And that after the death of T. Usher, his executors claimed 
 the whole land contained in the certificate, so by him re- 
 turned, under his title. Also a deed from Joseph fl ooJ, 
 the patentee, to Jonathan Hood, his son, but not his heir 
 at law, dated 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. "con- 
 taining 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. 
 VOL. ii. 19
 
 CAM:- IN THE cornr OF APPEALS 
 
 1807. Utherby T. Dorary. Also a deed, dated Oth May 17R6,- 
 bj Jonathan I food, executed in due form of law, to the 
 executors of T. I'shcr, to confirm their title to the 80 
 acres, in \\hich it i- e\pc>sed, *'lhat doubts had arisen in 
 regard to the title of 86 acre*. pan ot' a tract of land suld 
 by T. Dorsey to the >u;d '/'. /".-/.< r,"* and that in con- 
 sequence Jonathan Jfood conveyed to the executory of 7'. 
 fWirr, all his right and title to the 80 acres, to begin at 
 the end of the 27th course of Ifootfs Jnctomtrc, and run- 
 thrncc,&c. That the courses and beginning, so de- 
 scribed by the heir of Joseph Jfood, under whom J. Inward 
 claimed the 86 acres, are exactly correspondent \\ith the 
 location of the 86 acres made on the plots by the plaintiff. 
 That before and at the time when the said dot d v. a- exe- 
 cuted, the executors were possessed of the 86 acres, ac- 
 cording 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 Ifarfield, and to T. Dorsey, and on 
 which J. Howard made his rcsurvey; and that no per- 
 son whatever has had any possession of the 86 acres, 
 located as the plaintiff hath located thfe 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 ff'ood to J. hoicard for the 86 acres. 
 
 Mason, Shoajf, and Harper, for the defendant, objected 
 to the reading of the deed from J. Howard to P. Ham- 
 mond, dated the 27th of September 1753, to prove the lo- 
 cation of the 86 acres. They cited Co. Lilt. 352. i. 
 3 Com. Dig. (E. 4.) 274. 
 
 Martin, (Attorney General,) Key and Johnson, contra, 
 cited (lUlin^s Lessee vs Hn.'l, 1 l/arr. <$ Johns. 14. 
 The Karl [ SUM* vs Temple ei al. 1 LJ. Jluym. 311; 
 and GUb. L. E. 100. 
 
 CHASE, Ch. J. The deed from J. Howard to P. 
 mond of the 27th of September 1753, does not sufficiently 
 specify the land, being for 80 acres, and 94 acres, par; 
 
 Inclosttre, "convoyed by Joseph Wood to John 
 :n appears by deed recorded in Frederick coun- 
 '' but the deed thus referred to canuot b found. T
 
 OF MARYLAND. 147 
 
 deed docs not define the 86 acres by any courses or dis- 
 fauces, there is, therefore, nothing in it whereby any lo- 
 catable land can be convened, and of course passes no- 
 thing, and passing nothing it cannot be evidence. Nothing 
 but the deed itself can prove the location of the land re- 
 cited in the deed now ottered to be read to the jury. The 
 court are therefore of opinion, that the deed from /. How- 
 ard to P. Hammond is not legal evidence to show title in 
 Hammond in the 86 acres of land, part of Wood's Inclo- 
 sure, 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 circum* 
 stances, 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 plain-" 
 tiff excepted, 
 
 7. The plaintiff then, in order further to prove that J. ^^ret^d 
 If ood did execute to J. Howard some conveyance for the J^,,!"* u.T'c 
 86 acres of land, or some bond or contract for the con- byVhe R met^ a 
 veying to Howqrd the 86 acres, by the same metes and catc"i d o'n 8 ihr a pi 
 bounds, and beginning as located by the plaintiff, offered jj^ ver *><* 
 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 Dor* 
 set/, and that the resurvey is truly located, &.Q. 
 
 CHASE, Ch. J. delivered the same opinion as that giyeiji 
 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 lo- 
 cated by the plaintiff; and do accordingly refuse tu ail*w
 
 41s i ISES IN TflB COURT OIT'AFPEALS 
 
 the same to be given in evidence to ihe jury. The pluin- 
 tiil'excepteil. 
 
 8. The plaintiff then prayed the opinion and direction 
 court to the jut v, that unless they are .vatiriied. 1'unu 
 
 I iff hat nuutr hut 
 
 OMT 'OOII..H ..n the evidence, of the true position of the beginning of the 
 
 tar plouodkr be- 
 
 rmnii.e -r ti flf, acres of land, on which the rcsurvey calltd /'art Of 
 
 Ind f'* which ih. <f J 
 
 ' U'owl** Incloaitre was made, or the bejnnninj; of tliat re- 
 
 ami ihn i> 
 
 n^teiuur fi'V surv '\ v :UK ' f r which land this suit is bioujjhl, that thui 
 Kii'lr*ihffef^t thy At a right, and are bound bylaw, to a.-u-nnin a 
 t>7"h'm hal ioCBlwl place of beginning, by reversing the first nine coui> 
 
 iiTr'TJc* that leMim-y without variation, or vitli such variation as 
 i** 10 *!' ih ,ui'i they think right, from the place marked u on the plots, at 
 "n^uneantvt red figures 27, and rod /'//'/,, and that unless the\ 
 ihtir !.i,r"'b."t satisfied, from the evidence, of the place where the 104th 
 
 lull*! flint I III. i l,c 
 
 o n.c piiniiif\, line of the resurvey calls for, that then the true location of 
 
 if <h<y find fur f 
 
 biin the land is to be ascertained by running the lines of the 
 
 resurvey from the place marked on the plots at </, without 
 or with such variation as they think proper, until the ^iven 
 line shall intersect and close with the beginning so found. 
 by reversing as aforesaid. And that the jury are by laxv 
 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 
 they have evidence, to satisfy their iiiinds, of the tn 
 ginal beginning of the resurvey r.iade by // ouJ, and for 
 which this suit is brought, and that the s;:me i a; ;i j.iare 
 different from what is located by either the plaintiff or the 
 defendant, that then they are to begin at the place so prov- 
 ed, and run the first eight courses of the grant, without or 
 with such variation as they think most proper, tn ( 
 pond with the original location; and that the ninth course 
 must be run to its call at a, red "27. red /' U f.; and in 
 case they have not evidence to establish the place called 
 for at the termination of the lU-lth line, that then they 
 liavc a right, and are bound, to locate the lines from . 
 witli or without variation, as they tl.'u.k proper, until the 
 D line shall intersect and close with the phu<- of be- 
 ginning. And that the jury are by law competent to 
 draw lines on the plot* to ascertain the tnn- p'.>i'i,n of ihe 
 land, or to make such description thereof in their verdir.'
 
 OF MARYLAND. 119 
 
 us shall fix the true position of the land, notwithstanding 1807. 
 
 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 ail such land as is included within their finding, 
 
 and which is also contained in the locations of the plaintiff 
 
 if J'art of J food's Inclosure, and for which the defendant 
 
 hath taken defence. 
 
 JMartin, (Attorney General,) and AY?/, for the plaintiff, 
 cited the act of November 1781, ch. 20, a 14, and Carrol/, 
 el ul. Lessee vs L. <y .V. Norwood, 1 flarr. fy Johns. ICC. 
 
 Khaajf, for the defendant, cited JKirkp a (rick's Lessee rs 
 A't/gci, 1 Ilarr. <$' Johns. 98, and VVeLb'a Leases va 
 Heard, Ibid 349. 
 
 CH^SE, Ch. J. The court cannot give the direction pray- 
 ed on the part of the plaintiff, inasmuch as the r laiiuiff 
 lias not made any location on the plots to warrant the 
 court in directirg 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 In closure, the plaintiff having 
 made only one locution of the beginning of that tract of 
 land, and the same having been counterlocated by the de- 
 fendant. 
 
 'J he 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 dnd for the plaintiff. It is customary, in order to 
 meet the variation of the compass, to make sundry loca- 
 tions, 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 
 tlse locations made by the plaintiff, if they iind for the 
 plaintiff. The plaintiff excepted. 
 
 On motion of the plaintiff's counsel, leave was giveh 
 by the court to withdraw a juror, for the purpose of amend- 
 ing the plots; but the plots were amended by con.-ent of 
 the parlies without withdrawing a juror, and the trial 
 continued. 
 
 9. The plaintiff then prayed the opinion of the court. If 'iipi>ojr'nnui!c 
 and their direction to the jury, that if the besnnnino- of' 5 '"*' " '>><t 
 
 he [no\e<'. .hen .i; 
 
 J. Howard's resurvey is lost, or cannot be proved, then is "' '*' f " 1 "" 1 h >" 
 
 itvfisi; ;j il.e liiu-j 
 
 the beginning of the same js to be found by reversing the j',',,',^,, '^ t ^ l '" >t 
 lines from the first known and established boundary; and bi '- heU lLl: '- Ji ". v -
 
 (' ASES 1 N 'I UK COURT OF API'KA L> 
 
 that the holders under that resuivoy are entitled to all t'n 
 laud \\itiiiii that res-.irvey li. rated from such beginning so 
 found, unless taken away by elder surveys. 
 
 THE COURT gave the direction 1o the jury as prayed. 
 Verdict and judgment for the defendant, and the plain- 
 tiff appealed to this court. 
 
 The cause was argued at the last term before Tu.cn- 
 M \\. NICHOLSON, and GAMT, J. upon the bills of 
 lions taken by the plaintift' in the couit below, being tlje 
 t-iii, nh and Blh, as herein before stated aud numbered. 
 
 /, and Johnson (Attorney General,) for the Appel- 
 lant, in their arguments stated, that under the tilth and 
 seventh bills of exceptions two questions occurred I. 
 "Whether I/oirard had title to the 80 acres of land upon. 
 which his resurvey was made? And 2. "Whether suf- 
 ficient evidence was offered to the jury to establish the lo- 
 cation of the 86 acres on the plots: '1 hey 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 \\hether or not such a decJ 
 had ever been executed. They cited (Jitb. L. E. 98. 
 Gill ing's Leaxee r.v. Hall, \ llarr. $ Johns. 14. 
 
 On the tii^/ith bill of exccptioi s they contended, that th^ 
 jury had a rij;ht to dr;n\ lines on the plot?, or in any other 
 manner they mi^ht think proper, in order to find the be- 
 ginning of the land in contro\ersy, although the beginniiiu; 
 so found might be at a different place from that located on 
 ihe plots by either of the jariic*. 'I hey tiled JJuriKtl/'s 
 - i-s. Goodwin, 1 ttarr. .V Johns. 282. C'urrul/ <t 
 ul. Lessee vs. Xvrwood, Ibid 186. 
 
 Har].rr, for the Appellee, in their arguments 
 on the xisth ai.d nfjit/t bills of exi-cpiion.-, died /<///:,//. 
 7-4. (illb. //. E. 09. Morris's Lessee vs. l'<mdcru>. 1 
 J) t tll. J.(T>. C7. C'citi. Li. tit. rii.intr. (IJ 5.) SinilJi 
 ts. The J'(sln;, cvc. in this court on the K. S. 
 
 On the e : .':lilli bill < f excepiion^ they in^i^ted that the 
 plaintiff could not give evidence thai the beginning of the 
 land, for which he brought his ejectment, was at a difl'n- 
 rnt place than tli^t claimed by his litalions ou the pluU.
 
 OF MARYLAND. 151 
 
 They cited Kirkpaf rick's Lessee vs. A'vgrr, 1 Han. Sf 1807. 
 Johns. 289. H'ebb's Lessee vs. Jirtml, Ibid 349. 
 Iluvfies's Lessee vs. Howard, decided iu Haiti-more county 
 court, and now on appeal in this court. 
 
 Curia adv. vult. 
 
 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. 
 
 NICHOLSOX, J. concurred, except as to the opinion 
 given in the eighth bill of exceptions, and from that 
 opiuion he dissented, 
 
 JUDGMENT AFFIRMED. 
 
 HAMMOND, et al. Lessee, vs WARFIELD. DECEMBER. 
 
 APPEAL from the General Court. Ejectment for a tract The courts win 
 of land called Part of TPood's Indosure. lyins in Frederick the n>i of the 
 
 , /,' , la n.loffi re as fbrm- 
 
 COUnty, containing 2286 acres. I he defendant, (now ap- ta.ntoiu*ii*< 
 
 v . ' lative to property, 
 
 pellee,) took defence on warrant, under the general issue sii <i win direct the 
 
 jury as to the taw 
 
 plea, for a tract of land called The Resurvey on Hobson-s "^"R liom uch 
 
 The rules of the 
 I land office cannot 
 be proved by wit- 
 
 nesses; they are to be found on the records of that office, and in the proclamation^, of the proprie- 
 tary 
 
 The usage and practice of the land office must be proved by the adjudications of the judges of 
 that nilice, and nut bv th.- opinions of witnesses as to what wa. thar usage and practice 
 
 Where a wairant of reurvey, taken out by J II, who w:is not s -iz.ed of the original tract resnrveyed, 
 was located on vacant l;md not crintiguou* to such oritf'intl tract, his tyrant therefor will operate by 
 relation to the date of the certificate of resurvev, it' the eoinposirtmt money was paid in time, and !he 
 certificate of resurvey was returned to and in the land office. when a warrant ul resurvey i>sued i 
 J C t.) affect the vacant 1-tnd included in J H's certificate; or if the composition money was not paid 
 in time by J C on liis resurvey, and J H's certificate was in the oJHce when J C did compound, the 
 grant to J H wi'l iv'ate to the dale of the certificate. 
 
 But if J H's certificate was not in the ofllce when the warrant issued to J C, and J C compounded 
 on lniiesurvey m time; or if J H's cerlificite wrs not in ihe olice when .1 C did co iip.iniiil, though 
 not in time, anil obtained his i;nitif , then J C was a fair p jre'i assT for a valuable consideration wilhuut 
 liinieeof the e<|!iit;tlile interest of J H, aii'l the (jrant to .1 C cannot be overreached by le'ntion, 
 
 If vacant lantl, not contiguous to t!ie ori-jf'.n'il ti-act reiiirvevd, i< included in the certificate of re- 
 survey, it is nol legal notice of the location o}' the. warrant, until the certificate, is returned to iln- 
 Jand office 
 
 If an assiirned Ir.nd warrant was applied in time to the pnynient of cnmp >sition money on vacnnt 
 rand inchuled in a certificate of resurvey, such application will bu e<i<iivaicnt to tiie payment of <i 
 much inoney 
 
 The jury are to find when the composition mnney was paid on a certificate of survey. 
 
 A naked possession. (cosse<sion without ri^ht.) i* adversary only to lite extent of actual enclosures. 
 
 "Where the plainti if 's grant operated l>y re!:t' ion to the elite of :he certifi.-nte, ami ovi n-e.-ichcd lite 
 defendant's elder grant for the same land, the entry of the i;r:intee, under siii-h eld-.-r ^rant, and ilie 
 posiessinn by him, and those clai.ning under linn, w is without ri?ht, and cannot bar the |>!aini,tt''s 
 recovery, unletsiuvh MtMunoaWM bj^ actual enclosures for 20 years prior to the bringing the eject- 
 ment 
 
 To entitle a party to the benefit of the relation of his grant to the certificate, it i incumbent on him 
 to slit-* n equity; and the producing copies under seal of ihe warrant, certificate and grant, u uut 
 sufficient to entitle him lo such lienctit. 
 
 'Ihe time when a certificate was returned to the.lanJ office, ij a matter of fact deteriniuablc by the 
 jury. 
 
 A petition to the judges of the land office by T D, with certain alterations made therein in the hnnd- 
 wriiingofa clerk in that otlk-c, (now doad,) stating when a certificate win returned, not prrniilieH 
 to be given in evidence, ns a circumstance to prove at whit tin.e ihe certificate was returned, or to 
 prove it was returned before a certain pert.-id, as the party against whom the ItMimoay is uilclided lo 
 'optoote des uut tlenve any iutvtest iiitUo Juud in i^ucatUiq u;i.Ur 1" J).
 
 ,: ftl ;. . 
 
 1. V i May tei, Vlendatit pro- 
 
 duced the honourable *1fej:<inilcr Contti // .luollor. 
 
 and ju<lge of the land office for the western shore, and 
 proposed to him the following question, to wit: "If a cer- 
 tificate on a warrant of resurvey is returned, in which va- 
 cant land is included, not contiguous to the original, but 
 separated by elder survey. ;.'nl the person returning the 
 said certificate has paid the caution f >r the land t::>t conti- 
 guous to the original, and no patent has issued, and a man 
 by a warrant taken out after the payment of the said cau- 
 <;on money, returns a certificate including the vacancy com- 
 prehended in the certificate of the survey which is not con- 
 ns to the original, and pays the caution money; if the 
 above fa< to the judges of the land office, would 
 
 not, by the laws of the land office, the former certificate 
 be vacated as to the vacancy not contiguous, and patent 
 to the younger certificate?'' But tin; counsel for the 
 plaintiff objected to the question put to the wi;; 
 
 . : . The courts of justice will take notice of 
 the rules of the land office as forming regulations rcL 
 to properly, and will direct the jury as to the law arising 
 from '.uch r;;!es. The rules of the land office cannot It-- 
 proved by witnesses; they arc to be found on the records 
 of the land office, and in the proclamations of the proprie- 
 tary. Opinions as to the riles of the land office cannot 
 be received as evidence. The usage and practice of the 
 land office must be proved by the adjudications of the 
 !ges of (he land office, and not by the opinions of wit- 
 nesses as to what that usage and practice ma\ be. i 
 adjudications contain the legal information as to what have 
 been t'.ie usage and practice in the land office. The 
 court therefore refuse to allow the witness to Oe examined. 
 The defendant exceptcd. 
 
 , n -rim 2. The plaintiff offered in evidence the same title which 
 - m ttee was offered in evidence in the c.ise of the same plaintin" 
 
 l ,,t.- i. i. 
 
 fimlr f rrt 
 
 ki.il -I.- 
 
 Vorrw, tried at the present term, and which 
 ''.'* 1 ;icularly set out in the fourth bill of r.rrrptimx 
 
 "J taken in that cause. (Jntc 132.,) The plaintiff' then 
 
 . 
 
 j, roved, tha' the land referred to, called tl'oocTa I^ol, ac- 
 
 II 
 
 inr 
 
 lr Jj quired by reputation the name of Wooil's Inclomire. and 
 ,,, that they arc one and l/.e >ame tract of land. The d. 
 
 /liiVpj)"* 01 of 1 > C compaction raonej on vacant land urreyed
 
 OP MARYLAND. 155 
 
 tlatit then read in evidence a patent granted to John Car- 1807. 
 muck, Stephen Richards, and Daniel Richards, for a tract 
 of land called Hobson's Choice, dated the 23d of January 
 1 753, for 25 acres. Also a warrant of resurvey granted 
 to the said patentees on the 18lh of April 1753. Also a 
 certificate made in virtue of that warrant, dated the 4th of 
 September 1753, and the land called The Resurve.y on 
 Hobsorfs Choice, containing 395 acres, which was examined 
 and passed the 1st of July 1755. Also the patent which 
 issued in virtue of that certificate, to Basil Dorsey, dated 
 the 19th of May 1755, stating that the certificate had been, 
 on the 19th of May 1755, assigned to him by Carmack and 
 Richards. Also an order of the land office for granting a 
 certain warrant, and the warrant which issued in virtue 
 thereof, dated the 15th of October 1754, to Henrietta Maria 
 Dulany, for 3000 acres. Also a renewment of that war- 
 rant on the 7th of April 1755, to //. M> fiulany, for 1127 
 acres. Also the marginal entries on the warrant, show- 
 ing how the same had been employed, viz. "370 acres as- 
 signed Basil Dorsey, and applied to The Resurvey on 
 Hobsorfs Choice.^ Also an assignment from H. M. Du~ 
 lany to B. Dorsey, for 370 acres, a part of the said war- 
 rant. He also offered evidence to prove that the certificate 
 of Part of Wood's Inclosure., was not returned to the land 
 office at any time on or before the 19th of May 1755. The 
 defendant then prayed the opinion of the court, and their 
 direction to the jury, that the patent of Part of Wood's 
 Inclosure, cannot relate to the date of the certificate there- 
 of, or to the time of paying the caution money on the cer- 
 tificate, so as to overreach the title of the defendant under 
 the patent of The Resurvey on Hobson's Choice, but that 
 the title under the last mentioned patent, is an elder title 
 than that under the certificate of Part of Wood's Inclosure^ 
 He also prayed the opinion of the court, &c. that if from 
 the evidence the jury do not find that the certificate of 
 John Howard was returned to and in the land office when 
 Basil Dorsey compounded on the certificate for T/ie Re- 
 survey on Hobson's Choice, and obtained his patent for 
 the same, that in that event B. Dorsey, though the pay- 
 ment of the composition money made by him. was not with- 
 in two years after the date of the warrant in virtue of 
 which The Resurvey on Hobson's Choice was resurveyed, 
 was a fair purchaser for a valuable consideration, without 
 VOL. ii. 20
 
 CASES IN THE COURT OF APPEAL- 
 
 1807. notice of the equitable interest of J. Howard, and tta pa- 
 tont to B. Dorsey cannot be overreached or defeated by 
 relation. Ami lie further prayed the opinion and direction 
 of the court, &c. lhat if tin- jury should be of opinion, 
 from the evidence before them, that the assignment by //. 
 A/1 Dul any to 11. Dor*ry. \\ a made before the 18th of 
 April 17-T.i, tlien the payment of the caution money made by 
 him on his certificate of The Iff survey on Holmon's Choice, 
 \\-\\\ takeelVect and have operation in the -ame manner as it 
 the payment had been made before the 18th of April 1755. 
 
 HASE, Ch. J. The court are of opinion, that if it ap- 
 jiears to the jury that the warrant of resurvey, taken out 
 by John Howard, was locateil on the 5th of March 1753| 
 find the certificate was returned on or before the 18th of 
 April 1753, when the warrant of resurvey on Hobson'a 
 Choice was taken out by John Carmack, Stephen and Da- 
 niel Richards, and that the composition money was paid by 
 Philip Hammond, the assignee of Howard, within two 
 years from the date of his warrant, then the patent to 
 Philip Hammond, and others; will operate from the date 
 of the certificate. But if the certificate on the warrant 
 taken out by J. Howard was hot returned to, and in the 
 land office on the 18th of April 1753, and the jury find 
 that Car mack and Richards, or 13. Dorscy, did compound 
 On the certificate on the warrant on Hobsori*s Choice, with- 
 in two years from the date of that warrant, then the patent 
 to Hammond and others cannot operate by relation to the 
 date of the certificate, and overreach the patent to B. Dor- 
 ft 
 
 But if tha jury do not find the composition money was 
 paid withih two years from the date of the warrant, by 
 Carmack and Richards, or li. Dorsry. and do find that 
 the certificate of J. Howard was returned to, and in the 
 land office when B. Dorsey compounded on the certificate 
 for The Itvturvey on Hainan's Choice, then the patent to 
 Hammond and others \vill operate by relation to the cer- 
 tificate: but if the jury do not find that the certificate of 
 J. Howard was returned to, and in the land oflice when 
 B. Dorsey compounded on the certificate for The Rcsifr- 
 vey on Hobson's Choice, and obtained his patent for the 
 Mmo. in that event B. Dorsry, though the payment of the 
 composition money made by him was n>t within two year*
 
 OF MARYLAND. 
 
 after the date of the warrant, in virtue of which 7 lie Re- 1807. 
 survey on Hobsorfs Choice was resurveyed, was a fair pur- 
 chaser for a valuable consideration without notice of the 
 equitable interest of J. Howard, and the patent to B. Dor- 
 sty cannot be overreached or defeated by relation The 
 court being of opinion, that as the land, (on which th$ 
 warrant of resurvey of J> Howard was located,) was not 
 contiguous to the original tract resurveyed, there could be 
 no legal notice of the location of the warrant but on return 
 of the certificate to the land office. 
 
 The court are also of opinion, that if warrant wasap-v 
 plied by Carmack and Richqrdf. or B. Dorsey, in pay- 
 ment of the caution money, withjn two years from the 
 date of the warrant granted to Carmack and Richards, 
 that such application of warrant will be equivalent to the 
 payment of so much money. But the court are also of 
 opinion, that, although the assignment by //. M. Dulany 
 to B. Dorsey was made before the 18th of April 1755, the 
 payment of the caution money made by him will not take 
 effect as a payment unless the warrant was so applied by 
 him within two years from the date of the warrant. Thd 
 defendant excepted, 
 
 3. The plaintiff then offered to prove that the usage and p j^ n r ^f ej c ^' 
 custom of returning certificates to the land office was, that "" l de ^ a '^ "tgli 
 the surveyors who made the certificates respectively re- J*^"' b a " t d 
 turned them to the land office, and from the land office K^eorLn 1*-" 
 the certificates were sent by the clerk or register to the.aJ^^J^IIr'w! 
 
 . ..' ." . ', , . .. rant was in the of- 
 
 exammer-general for examination, by whom again they, fiee. the mat n 
 
 _., ' ' WT j i lh( -' '"" rtsurvey 
 
 were s;enerally returned to the land omce. He then pray- win operate by Si - 
 
 J . . ;- * laiiontothe ctiti- 
 
 ed the opinion of the court, and their direction to the iury, fite. um it tha 
 
 J J ' latter certificate 
 
 that if they do find the composition money was not paid^* 8 "? 1111 ^ 011 
 
 J v r . fi ce when the iom- 
 
 within two years from the 18tJi of April 1753 by Carmack ^ il r ^^ 
 and Richards, or B. Dorsey, that then the patent to P. gjjj lil " ht .;j ot th ^ 
 Hammond and others will operate by relation to the certifi- ^"" ""^i f be 
 cate, although the jury shall find that the certificate was not J a e a a 
 returned to the land office before the 1 8th of April 1753$ 
 provided the composition money was paid on the certificate 
 of Part of Wood's Enclosure before the composition money 
 was paid on the survey made in pursuance of the warrant 
 of resurvey which issued on the 18th of April 1753. He 
 also prayed the direction of the court to the jury, that, the
 
 |06 
 
 CASKS IN THE COVIIT OF A1TKALS 
 
 1807. application of common warrant <o compound on the rcsur- 
 \ty made under the warrant of the 18th of April 17:V>, 
 can have no other c fleet than if the caution money had 
 been paid in money: and that although they find that the 
 connuon warrant, which Mas applied as composition mo- 
 ney, issued on the 5th of April 1755, yet it can only be 
 considered a payment for the land included in the survey 
 made under the warrant of the 18th of April ir^l, from 
 the time it was applied as a payment, and cannot ^o back, 
 either to the 5th of April 1 7-55, or to the time it was as- 
 signed to B. Dorsey who made the payment w ith it. 
 
 CHASE, Ch. J. delivered the same opinion of the court, 
 as that given on the defendant's prayer in the preceding 
 bill of exceptions, excluding the first section of that opini- 
 on. The plaintiff excepted; and the defendant also ex- 
 cepted to so much of the opinion of the court as deter- 
 mines, that under the circumstances as stated, which in 
 the opinion of the court, will entitle the patent for Purl of 
 H'ooifs Inclosure to a relation to the certificate so as to 
 overreach the patent for The Jiesurvey on liaison's C/ioicc, 
 under which the defendant makes title. 
 
 ir ti piaintifTi 4. Tlie defendant then offered evidence that B. Borsru. 
 
 jrsnt opTi(tt >y /' 
 
 Si!i!X? ihei*n\fi e * ne patentee, in virtue ot "his resurvey, entered into, and 
 rarhrt'ifn eid<-r was P osscs9e( l ' The Jtesvrvey on Hobvuifs Choice in the 
 Ki?to^ h iMVn vear !~ 55 and continued so possessed until his death, 
 "h n r V h M.J,ndrr which happened in the year 1763; that by his will he d- 
 ^irji l i^o'i.V-) d i!! l in vised the land to his son Dennis in tail, remainder to his 
 under binf^Mu daughters. That in the month of April 1774, JJr.nnis Dor- 
 rtiimH 1 Ur* *be *cy, the devisee, then a minor of the age of 18 years, en- 
 t*+ ' 'poi^'-M .on tered upon The fleaurvn/ on Hobson's Choice, and had 
 
 wtv vtml in- .' 
 
 rhitnrtt rr 20 the same surveyed and run out; that he continued so to 
 
 jrrt j>nnr to the 
 
 br-frmg the eject possess that land until his death, which happened in tlio 
 ^"^J^jjear 1778. That D. Dorsey died intestate and without 
 ^^'^ 10 lssue > leaving three sisters, to wit, .7n', married to TTio- 
 f **'""' ma * Sotkrs, Eleanor married to Upton Shcredine, anil /.'//- 
 zabeth married to Ephraim IfuicanL That after the death 
 of D. Dorse}/, the said Sollers, Shercdine and Ho ?/?</, in 
 right of their wives, entered into the land, and were |m-- 
 sessed thereof until the 22d of February 1779, when they, 
 together with their wives, conveyed the land to the present 
 defendant, who in virtue of that deed entered into the land
 
 OF MARYLAND. 157 
 
 on the same day, and was possessed thereof, and has conti- 1807. 
 nued so possessed until this time. He then offered in evi- 
 dence, from the rent rolls in the land oflice, that the said, 
 land, upon being patented to D. Dorscy, was also charged 
 to him in the rent rolls; and also the debt books of the 
 lute Lord Proprietary, whereby it appears that the quit 
 rents d.ue upon the said land were iu the debt books charg- 
 ed to B. Dorsey, and were by him paid from the year 1750, 
 until his death in 1763; and that after his death, the quit 
 rents were in the debt books charged to, and paid by, D. 
 Dorsey the devisee, from the; year 1763, until the revoluti- 
 on abolished the proprietary quit rents. The defendant 
 then prayed the opinion of the court, and their direction 
 to the jury, that if they should be of opinion, from the 
 whole evidence before them, that B. Horsey came into the 
 actual possession of The Resurvey on Hobson's Choice, 
 claiming the whole thereof under and by virtue of the pa- 
 tent thereof granted to him, before the 3d of May 1760, 
 when P. Hammond, the father of Charles, and grand-fa- 
 ther of Philip, one of the lessors of the plaintiff', died, and 
 that /?. Dorsey was on that day in the actual possession of 
 that tract, claiming the whole, and that he, and those 
 claiming under him, other thaw the lessors of the plaintiff', 
 and those under whom they claim, have been in the actual 
 possession thereof, claiming the whole, from the day last 
 aforesaid until the time of bringing this action, then the 
 plaintiff' cannot recover, unless it should be satisfactorily 
 proved to the jury, on his part, that Charles Hammond, 
 son of Philip, or some person claiming under him, made 
 an actual entry into Part of ff'ood's Inclosure, claiming 
 the whole thereof, at some time within twenty years next 
 after the 3d of May 1760, 
 
 Harper, for the Defendant, cited Russell's Lessee vs. Tin- 
 ker, \Harr. $ Johns. 71. Davidson' 's Lessee vs. Btutly^ 
 
 3 Harr. fyM'ffen. 594. Miller's Lessee vs. Ilynson, (in 
 the Provincial Court, May term 1734.) Hawkins's Lessen 
 vs. Bollon, (Ibid, April term 1745.) APCrackin et nx. 
 Lessee vs. Harris, (Ibid, May term 174,8.) ./?/. Cum. 
 311, 312. Co. Lilt. 15, a, Sect. 8. Taylor vs. Horde, et a/. 
 1 Burr. 119. /tec. Ab. \\t/Trespass, (C. 3.) Ero. M. 
 tit. Surrender, 245. b. 1 Leon. 209. 2 Leon. 147. 
 
 4 Leon. 184. 2 2}oll. Jib. tit. Trespass > 553, 554.
 
 158 CA>r> IN THE COURT OF APPEALS 
 
 180r. CH\SI , f h. J. A naked possession, (possession without 
 
 right.) is only a'l\er-;iry to the extent of actual enclosures. 
 If the patent to P. Hununond and others relates to thu 
 certificate, the Dorsey* and the defendant had only a naked 
 ))u->-er.sion, and limitation by adversary possession is only 
 to the extent of enclosure?.. 
 
 The court are of opinion, that if the patent to P. Hum- 
 iiiontl and others doth cperate by relation from the date of 
 the certificate, that in such event the patent to JL Dorse;/ 
 lor 7 'he Hcwrccy on Hobnon" > s Choice, which is stated to 
 be included in the patent to P. Hammond, and other?, 
 cloth nut pass any thing, but is altogether inoperative, and- 
 the entry of IL f)or*ey, and the possession by him, and 
 those claiming under him, was without right, and that such 
 PU--C-.MOII cannot bar the plaintiff', if the jury do find the 
 tart- stated by the plaintiff', unless they also find that such 
 po-r~.ion was by actual inclosures for twenty years 01- 
 upwards, prior to the bringing this ejectment; and in such 
 ca^e, it would only be a bar to the extent of such actual 
 adversary possession by enclosure. The defendant ex- 
 cepted. 
 
 KraM^'htTeti- **' ^ e p' a ' n tiff* then prayed the opinion of the court, 
 "'to<L'r n*u ant l their direction to the jury, that if they rind and be- 
 fewdrdtm'il'pm" 'ieve the tacts to be true as stated by him, that then, upon, 
 - *^"V.r principles of law, when the patent, under \\bich he claims, 
 o'r wan obtained from the land office for the land included in 
 Tf the certificate of rcsurvey, the patent related to the date 
 'iwotitir a pr- of the certificate, and operates to ^ive title from that time, 
 auiwi, i i i- unless facts are proved to rebut and defeat such relation; 
 and that the defendant, on his part, must prove all facts 
 necessary to defeat such relation, it being only incumbent 
 on the plainliiV to produce office copies, under seal, of the 
 warrant, certificate and patent, tc> claim ou his part the 
 benefit of relation. 
 
 CHASE, Ch. J. The court arc of opinion, that the rela- 
 tion of the patent to the certificate, so as to overreach 
 _nants, i- founded on a principle of equity, and is a 
 fiction of law introduced fur tin- attainment of justice, and 
 to prevent circuity of action the court doing that which 
 a court of equity would effect
 
 OF MARYLAND. 
 
 The court refuse to give the direction prayed, being of 1807- 
 opinion that it is incumbent on the plaintiff* to show an 
 equity to entitle him to the benefit of relation, and the 
 producing copies, under seal, of the warrant, certificate 
 and patent, is not sufficient to entitle him to sucli benefit. 
 The plaintiff excepted. 
 
 6. The plaintiff having given in evidence the 
 
 ahd patent for Part of Wood's Indosure^ and that the Jo \h^.)iT office, 
 
 certificate was examined and passed on the Gth of March-ietermiMbW "y 
 
 1754, and the caution money paid on the Gth of March* 1 
 
 1754; and having proved, that before the year 1766, it 
 
 was not the practice of the land office that the time of the re- 
 
 tarn of the certificates should be endorsed on the certifi- 
 
 cates respectively; and also having given in evidence that, 
 
 under the proprietary government, it was the usual prac- 
 
 tice for the surveyor to return to the office the certificates 
 
 for the office, and for the clerk of the land office to send 
 
 the certificates to the examiner-general to be examined, 
 
 and for him to return the same, after examination, to the 
 
 clerk of the land office; applied to the court to instruct the 
 
 jury, that these facts, so offered in evidence, are sufficient 
 
 to prove that the said certificate was duly returned to the 
 
 iand office on or before the 5th of March 1754, unless the 
 
 defendant can prove the contrary. 
 
 CiiASE,",Ch. J. The court refuse to give the direction 
 prayed, being of opinion, that the time when the certificate 
 was returned, is a matter of fact determinate by the jury, 
 upon the whole evidence relative to that fact given by the 
 plaintiff and the defendant. The plaintiff excepted. 
 
 7. The plaintiff then offered in evidence, that the office tic *%*" a *v e e TC 
 of the examiner-general, and the office of the agent, to fa",',. 1 , 11 "? ^"'^ 
 whom the caution money was paid, were held in the city of Jheh^eM^^SS 
 Annapolis, and that the party, after his certificate was ex- K^mi/M"^ 
 amined and passed, and returned to the office, was accus- rairiest'htreo&'i 
 tomed to carry his certificate to the office of the agent, and be^the pmmtag 
 pay the caution money thereon, and to bring the same back tnt-s tWe'of, e 
 
 1 J the rent rol! 
 
 to the office; and that after the certificate was compound- Tin- acting* an* 
 
 i!'ini;s of a ptrson 
 
 ed on, the party could not take his certificate out of the uwler vl) " ni " ie 
 
 party don not 
 
 office, without applying to the judge of the land office, and claim ai-e uot|, t >r- 
 
 luitti cl KI be piven 
 
 obtaining his permission for that purpose, and that before h\m ideuit *fi*' UJt 
 the certificate was taken out on such permission, the [arty
 
 1GO CA*V> IN TIIK COURT O.v Al'I'KALS 
 
 1807. \\ :i- rei|uired to give a receipt for the same, which r 
 *~ -v ' \v.i- kept in a memorandum book for tint ami other nur- 
 
 >UllJ 
 
 p--^-. It was ottered in evidence, that the said memoran- 
 
 book, as well as other memorandum b.>.ks which had 
 
 kept for particular purposes in the land office under 
 t:ie proprietary government, have been lu>t or dcstrov ed. 
 That in such instances, under the propr'u -tai v ^overnment, 
 in which the parties thcmseUcs carried the certificates to 
 the land office, they were carried there before they were 
 examined ami passed, and were sent to the examiner-gene- 
 ral by the clerk of the land office to be examined, in the 
 fame manner as if returned into the office by the survey- 
 or. And it \\;is also u;i\en in evidence by John Lulluhan, 
 K -i I u i 10, Register of the Land Office, who had been ex- 
 amined as to the foregoing facts, that before the jrttl 
 iron, it was not the practice or usage in the land 
 office to endorse on the certificate the time when the 
 certificate was received into the office; that when a 
 warrant of any kind was issued for the surveying or tak- 
 ing up of land, it was immediately entered up and record- 
 ed in a record book kept in the land office for that pi:: \ 
 that, when a person applied to the office to caveat any 
 certificate, if the same was not in the office, or could not 
 conveniently be found, it was usual to enter the caveat in 
 the margin of the warrant; that under the proprietary go- 
 M-rniiienl, a caveat docket was regularly kept, in which 
 was also entered every caveat as soon as made; but that 
 those dockets are now lost. That where a certificate was 
 cavcated, the judge of the land office did not act upon the 
 caveat and dismiss the same, under the proprietary go- 
 vernment, unless the certificate was in the office; that the 
 witness knew of no instance to the contrary; and that it 
 
 !ie usual practice to endorse the dismissal of the ca- 
 veat on the certificate. That if a caveat was entered, it 
 \va- nut lh<- j-uge of the office to have patents made out, 
 s>ent to the governor to be sealed, returned to the office 
 and recorded, until a hearing and dismissal of the caveat; 
 nnd that although the caveat had remained more than six 
 months unacted upon and unrenewed, yet it was not the 
 practice and usage of the land office, under the proprietary 
 
 niiient, to have the caveat dUniMed, and patent is- 
 sued and recorded, unless on particular application of the 
 party entitled to the patent The plaintiff further offered
 
 OF MARYLAND. 161 
 
 in evidence, that the said Callahan was, when examined, 1807. 
 in the forty-ninth year of his age; that he first went to 
 write in the land office in the latter end of the year 1767, 
 and continued in that office nearly the whole time, until 
 the formation and adoption of our present government; 
 that when he went to write in the land office, William 
 Steuart was the clerk of the land office, and continued such, 
 until some time in the year 1774, when David Steuart suc- 
 ceeded him in the said appointment, and continued to hold 
 that office until the appointment of Saint George Peale, aa 
 register of the land office, in April 1777; and that at the 
 time the said Callahan first went to write in the land of- 
 fice, Saint George Peale was the eldest clerk or writer ia 
 that office, employed by JVilliam Steiiart^ (who \vas not 
 very often himself in the office,) and remained so until he 
 was appointed register. That during the American revo- 
 lution, to wit, sometime in the month of January 1776, the 
 books, records and papers, belonging to the land office, 
 were packed up and removed to Upper Marlborough, 
 where they were kept until sometime in July 1778, when 
 they were brought back again to the city of Jlnnapolis, and 
 that by snch removal some loss and injury had happened 
 to some of the books and papers. The plaintiff further 
 offered in evidence the assignment of the certificate for 
 fart of Wood's Inclosure, and that it was made and exe- 
 cuted on a separate piece of paper, and that the assign- 
 ment is annexed, by wafers, to one side of a sheet of the 
 original certificate in the land office, and that the side of 
 the sheet, to which it is so annexed, is blank, and not writ- 
 ten upon. The assignment is of "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 Indosure, ori- 
 ginally taken up by Joseph Wood." He further offered 
 in evidence, that the certificate of Part of Wood's Indo- 
 sure, now remaining in the land office, comprizes and is 
 written upon two sheets of paper; and that the said Calla- 
 han had no knowledge that the certificate was ever out of 
 the office from the time the caution money was paid there- 
 on. The said Callahan further in his testimony declared, 
 that he had no knowledge what was the usage and practice 
 in the land office in the year 1753, and for many years 
 after; that when he spoke of the usages and practices of 
 the land office, he meant the usages and practices whilo 
 VOL. ii. 21
 
 rein, which he 
 p .. 
 
 
 
 o the con- 
 . 
 
 cc at the 
 
 the practice to note on the 
 
 
 
 evick "3 from the L 
 
 ;!>e surveys were 
 . :i of the v 
 veats , g on those 
 
 I that neither the caveats, the 
 .ona mail- "n the certificates. lie 
 
 : 1 1 bundle of . 
 
 1 to the land ol 
 IT 1753, amounting to the m.n,! 
 
 brought into court, and offered i .. 
 
 :h they were found in the land 
 
 and ' 3 number albvesaid there were only three 
 
 certificates on which caveats were noted. The defendant 
 ' ffered to prove, that there is no endorsement 
 :rtiticate now in the land office for Part oj /' 
 
 returned to the land of- 
 fice; and also proved by John Cattahan, esquire, re _ 
 
 j land ofiice, that v/hcn a certificate of survey or re- 
 is returned to the said office, and remained 
 any person who opposed 
 .s customary to endorse the 
 :jon the ba:k of the ccrtifa; 
 
 i * the certificate \vas not in the land 
 
 i the caveat was so entered, that then it wa* 
 
 ..litry of the caveat iu t] 
 nrrant book, opposite to the warrant 
 
 ccrtif.catc v/ns founded. He then produced 
 
 the land offi .uwed to the jury, the \var- 
 
 vjjori which this certificate was founded, and the 
 
 'lich the same is entered; and also showed, that 
 
 i thereof, opposite to the warrant, it is en- 
 
 r*nbury Ridgely diii, on the 12th day of 
 
 avcat against a grant is-nin^ on the 
 
 Part of WcotFa Jnclosurt. He then pro-
 
 cLced th: original certificate for Part of Wood? a Lir 
 
 me showed to tti >. noon- 
 
 t; tte, made by any clei-k or o^cev in 
 
 (I office, by \vhich it can be inferred that t! 
 D the land office, until th? 80th of Janvury I" 
 :en there is an entry thereon that the ,air.e was c?.ve 
 by .?//. '/,"/>, L't-in* and Matthias 
 
 mond } (to whom the same certificate had been aligned by 
 J, Howard)) and that the certificate h^.3 no p' of 
 
 courses annexed thereto, or filed the He the;' 
 
 fered in evidence, that although it was c 
 surveyor,, who made out a certificate before the re--> 
 to return the same to the lar.d of 
 transmitted to the examine] 
 
 gelation which prevented the party : :g 
 
 his own certificate, and carrying it himself to the ex;- 
 er, previous to its coming into the land office; acd that!. 
 fore the revolution, as well as sines,. it was th:. 
 the ownsr of a certificate, which had been c.-aTrj: 
 passed, to carry the same to the person authorised to 
 ceive the composition money, th.it lie rv:rht "Gcertain : . 
 sum to b6 paid thereon, and to p".y the ce?r.poc;t:on \L 
 to the person so authorised to recs:re the same, That : 
 the 14th of June 1733, there was a proprietary order in- 
 specting the continuance of caveats, in th j ''ov; ( 
 in^: "That no caveat be permitted -'the 
 expiration of six months." That on the !?th of De 
 ter 1768, there was a second proprietary jord | 
 
 t, in the worda following: <5 That no caveat he per- 
 riitted to continue longei "'be rei:cv.'ci 
 
 after tlv.it trne, v.:ile:s "pen very 
 
 -o ofi'ered evi. 1 the revo- 
 
 Ir.fion, was entered upc 
 lands against any parser 
 and no account raised ag 
 lands, for quit rents as due to [ 
 
 lands which were patented. Ti - 
 
 turned to the land offico, ani had bee . 
 i, anil compounded on, it was the int r 
 prietary that it should be patented; and if : 
 remained in the land office, and there was no teg: 
 on to patent issuing thereon, it v.as custoiria.y to is> 
 patent thereon, and charge the :;r^-tec .uit rents
 
 CASES IN TirE COURT OF APPEALS 
 
 1807. due thereon to the proprietary. It is admitted that the 
 whole of the evidence ottered by both plaintiff' and defen- 
 dant, as stated herein preparatory to tlie taking this bill of 
 exceptions, so far as the same is not derived from papers of 
 the land office, herein stated and referred to, is derived 
 from John Callahan, Esquire, register of the land office. 
 That one of the three certificates, herein before re- 
 ferred to by the plaintiff, as the case of a certificate 
 caveated whereon the caveat was entered in the margin of 
 the warrant and not upon the certificate, was as follow 
 eth: The original certificate bore date on the 22d of July 
 175-1, upon which there was a caveat entered on the 26th of 
 Februarv 1756, by one J. Bayne; that this caveat was en. 
 tcred on the margin of the warrant, and also on the certifi- 
 cate returned to, filed, and now remaining in the land 
 office; that the said certificate was afterwards amended, 
 and the amended certificate, bearing date on the 26th of 
 May 1769, returned to the land office, upon which amend- 
 ed certificate a patent issued on the 15th of November 1769, 
 and in the margin of the warrant, upon which the same 
 issued, there was an entry in these words "caveat over- 
 ruled. Patent issued 15 October 1769," of which pro- 
 ceeding there was no entry, either upon the original certifi- 
 cate, or upon the amended certificate. The plaintiff then 
 offered to give in evidence a petition preferred by T/IOJIHIS 
 florsey, on the 29th of October 1772, to the judges of the 
 land office, caveating the certificate for Part of ff'ood't 
 Jnclosure, which was originally drawn in the hand-writing 
 of Samuel Chase, esquire, and which remains in the land 
 office. The petition, as originally drawn, after stating 
 the issuing the warrant, the resurvey, &c. was as follow.-: 
 "That the said certificate was never returned to the land 
 office, but kept by the said Philip Hammond in his posses- 
 sion, till his ileathin the year 1761. That the said certi- 
 ficate was kept by a certain John Hammond, esquire, son 
 of the said Philip, or by the taid, a certain Charles Ham- 
 mond, esquire, or one of them, from the death of ///> 
 Philip until the month of June 1771," &c. which petit inn 
 appears on the face of it to have been altered so as t. 
 u- follows: "That the said certificate was, on Ihr 4//i f 
 October 1753, re''MT' d to the land office, that the said cer- 
 tificate was, on the \3th oj October 1763, withdrawn out 
 of tht land flffict by a certain John Hammond, esquiir.
 
 OF MARYLAND. 165 
 
 son of the said Philip, till the month of June 1771," &c. 1807. 
 And the plaintiff offered to give in evidence, that the 
 alteration made in the petition, by inserting the words and 
 figures, "on the 4th of October 1753," and the words and 
 
 O ' ** 
 
 figures, "on the 15th of October 1763, withdrawn out of 
 the land office?' is in the handwriting of St. George Peale} 
 and that St. George Peale departed this life some time in 
 the year 1779. 
 
 CHASE, Ch. J. The court refuse to permit the plaintiff 
 to give in evidence to the jury the petition preferred to, 
 the judges of the land office by Thomas Dorsey, and the 
 alterations therein, in the hand-writing of Saint George 
 Peale, as a circumstance to prove at what time the certifi- 
 cate for Part of Wood's Inclosure was returned into the 
 land office, or to prove that it was returned into the office 
 on or before the 5th of March 1754, the court being of 
 opinion, that it is inadmissible for that purpose, as the de- 
 fendant does not derive any interest in the land in ques- 
 tion under Thomas Dorsey, by whom the petition was so 
 preferred to the judges of the land office. The plaintiff 
 excepted; and the verdict and judgment being against him, 
 he prosecuted this appeal. 
 
 The cause was argued in this court at the last June term, 
 before TILGHMAN, NICHOLSON, and GANTT, J. upon the 
 several bills of exceptions taken at the trial by the plaintiff 
 in the court below, being those herein numbered 3, 5, 6 
 and 7. 
 
 Key, and Johnson (Attorney General,) for the Appellant, 
 on the third bill of exceptions, contended, that the relation 
 of a patent to the certificate of survey depended alone 
 upon those facts which appeared upon record; that a court 
 of law could not travel outx>f the record and take into con- 
 sideration that which did not appear of record; and that 
 where relation had been refused at law, it was upon the 
 ground of something appearing on record. They cited 
 Garret son's Lessee vs Cole, 2 Harr. $ M'-Hcn. 459. Gar- 
 retson vs Cole, I Harr. $ Johns. 370. Morris vs Pugh, 
 3 Burr. 1243. Shep. Jib. 151. That if the court could 
 travel out of the record for proof that the certificatf of 
 survey was out of the land office, they could, with the
 
 W-^ - 1 
 
 On ns That if the relation of a 
 
 to the ,:ted to, . 
 
 t on partj 
 
 ' 
 
 d 'S"*/.'; 
 
 : 5. 
 
 On the J '/; ! '11 <, -Th:.t it \v.v> incut. 
 
 oti Uic tlcfeii- 1 :to of re? 
 
 out of the l:nd offce; and that unle-s he pn. 
 
 1 to presume ^! 
 cr out o- . n hiid teen t 
 
 ;;tions That tl 
 in the IK * been made by a clerk 
 
 i the fact was 
 
 tl, : tlie cas> 
 
 -d in evi 
 
 and / t!:c Appellee, on the / 
 
 ; , tended, t! .- 
 en by tha pluintili' bt!' 
 
 
 <1 tliat there 
 -.-lar.t. But that c 
 
 a to' be 
 
 
 
 - 
 ' 
 
 . ' '' ' 
 
 I 
 
 . 
 . 
 la\ 
 
 riteil /. ' Joh"*- ' 
 
 . 
 
 . I I '. . i 
 .
 
 .AI.YLAXD. 
 
 'a case, 5 Coke, 28. b. S'Bfc. . 1807 \ 
 
 Co. it//. 150. a. /xzne/ :_oM. ." " "', 
 
 152, 153, 154. They also contended, that i :itio:i 
 
 lur.d warrant, in payment of the com p ".>ney 
 
 8 resurvey, ought to be on the day itwasassiga- 
 
 <ui to 
 
 On the sixth bill of exceptions, that it was a matt-; 
 fact ifor the jury to ascertain certificate of survey 
 
 ^turned to the land office, as the time when it was re- 
 turned was not endorsed thereon by the register. Thoy 
 cited Carroll et a!. Lessee vs. Norwood, I Harr, fy J<. 
 
 On the seventh bill of exceptions, they contended, 1, 
 the receipt of the composition money, as endorse:! o.i 
 the Cv . was not evidence thut the. certificat 
 
 date of the receipt, or ever was, in the land ofiice 
 
 ?r not being an omccr of that ofiice. 2. That 
 
 .derations in the petition, by one of the clerks in 
 
 .,;ce, was not an official act, and could not, there- 
 
 affect the defendant, who did not claim under the 
 
 oner. Curia adv. vult. 
 
 : CCTTRT, at this term, concurred in the cp^.. 
 u need by the General Court in the several bills of 
 ptions taken on the part of the plaintiff below. 
 
 JUDGMENT AFFIRMESo 
 
 BEALL, el al. Lessee vs. IJUHWOOD. DE: EM;. 
 
 A.PJ2A.I. from the General Court. Ejectment for a tract . 7n fc*ow 
 ::U called Buzzard Island, lying in Culvert county, f^-"^,-' 
 
 Sfi 'lat'ire 1 = 
 ul fcwl is to be collected from the whole of ti:o I" v.% am! the circ-ii- 
 
 elands had bwn dented by A to his *on B, intail male, i-fji;:i'-i<lei- iuuil mult- i. iiit eldest 
 .-on C, le to hit third son D I o his two daughters i. m 
 
 :mon t by his petitirii to the le, : i, -.haMir hsui .irJ . (\t , 
 
 :it-hters, I< and M ) who ccitld not inherit the lands ;.!';; 
 
 '., ( .hi) united in the petition;) . : thtan act miffht pass .v.- 
 
 .f inheritance in fee simple in the snid la,id< in his iY r.::i'e h i.;, in case he s. r uli, i 
 irs at the time of his dea.h; ami in deiaul: of k;ur of \\\< - iir, i , .>_le heirs, the raid !: 
 a sc-.-nQ ac-corcingf to the will of his father. Whici: Dr<iyor bein;; th.> ; i^. t . 
 
 i.o facts and the prayer sat -.. d ti.e s:,i<l lar, 
 
 their bein and luigm, with a provUo, thai 
 
 b .dy at the tin:- of |-.i deail;, or that the i'i ot have issue, then the laan 
 
 u i and stand limited as by the will of A was devised. Ai';er a-ii B nad a -on U: rn 
 idii in the like time of T. "leaving three dauarliti-rs H. .Tand >'-. Diiriiijy :h-- i' 
 
 t Conveyed .to him in fee by B of \ seii<>d, leavmj; (he sain 
 
 ; at it- r 
 
 ng survived; L, learin i.-lant. On an 
 
 i nt broiiRht in the name of the lessee of H, J ami K, the three dan , 
 
 i( rjectment for the lanii mor(!,-:ifT-il, iiolc*s Jie cae dtow t!m 
 
 . ^jjii Lfk-u au&-;U previou* to the bringing tlte ejct-
 
 log CASES IN THE COURT OF APPEAI> 
 
 1807. The defendant, (the present appellee,) took general defence, 
 ami i--iic wa* joined on the plea of non cut. I. Theplain- 
 tift' at the trial, (May term 1804,) gave in evidence a grant 
 ilaii'd the C5th of March 165:, to H'illniin .V/;f, fur the 
 l.intl tor which the ejectment v.as brought. Also that Stone, 
 the grantee, on the 13th of November 1717, conveyed the 
 land in fee simple to Leonard Hollyday, (the first.) That 
 J/ollyday, on the 7th of November 1739, by his last will 
 and testament, devised the land in question, first. To his 
 son Leonard^ (the second,) intail male. Secondly. Re- 
 mainder intail male to his eldest son Thomas. 'Ihirdltj. 
 Remainder intail male to his third son Clement; and 
 Fourthly. Remainder in fee to his two daughters Elizabeth 
 and A/an/, as tenants in common. That Leonard Hollg- 
 tlay. (the first,) died on the 10th of December 1739, seized 
 of the land, leaving three sons and two daughters, to wit, 
 Thomas, his eldest son, Leonard, (the second,) his second 
 son, Clement, his third son, and Elizabeth and Mury, his 
 daughters. That Leonard Holly day, (the second,) entered 
 upon the land by virtue of the devise, and was seized 
 thereof provt lex poslidat', and being so seized, and havinc; 
 only two female children, a petition was presented to the 
 general assembly of the province of Maryland , at Februa- 
 ry session 1756, and in consequence of that petition ah 
 act of assembly was enacted during the same session, (ch. 
 \7,) entitled, ".#n act to vest certain int ailed lands therein 
 mentioned in the female heirs of Leonard Holly Jay, gen- 
 1h man, in fee simple?' reciting, that "Whereas Thomai 
 Hollyday and Leonard Holly day, gentlemen, by their hum- 
 ble petition to this general assembly, did set forth that 
 their father, Leonard Hollyday ', of Prince- George'' s coun- 
 ty, gent, in the year 1741, died seized of two tracts of 
 land lying in Culvert county, the one called Buzzard Is- 
 land, and the other called The Addition to Buzzard Inland, 
 the whole containing 751 acred, and that by his last will 
 and testament he devised the same to his second son Leo- 
 nard Hollyday, one of the petitioners, and to his male 
 heirs, and for want of such issue to his eldest son TJiomat 
 Hollyday and his male heirs; that Leonard Hollyday had 
 only female heirs, who could not inherit the said land after 
 his death, whereby it would descend to his eldest brother 
 Thomas, who by letter had signified his consent, and ig 
 party to the said petition; that the said land was unim
 
 OF MARYLAND. 169 
 
 jbfoved at the time of the death of their father, since which 1807. 
 it had cost the present possessor, Leonard Holly day, who 
 lives thereon, a considerable sum of money to improve the 
 same; that the said land had been in the possession of the 
 father of the petitioners ever since the year 1685, ani 
 never been claimed by any other person; wherefore they 
 prayed that an act of assembly might pass to vest an estate 
 of inheritance in fee simple in the said land called Buz- 
 zard Island and The Addition to Buzzard Island, in the 
 i'emale heirs of the said Leonard Hollyday, in case he 
 should have no male heirs at the time of his death, and 
 that in default of issue in the said female heirs, the said 
 land to descend according to the will of the father of the 
 petitioners; and the prayer of the petitioners, in the said 
 petition contained being thought reasonable, the same was 
 granted, and leave given to bring in a bill according to the 
 petitioners prayer;" and it was accordingly enacted, "that 
 the said tract of land called Buzzard Island and The Ad- 
 dition to Buzzard Island, containing in the whole 751 
 acres, with the appurtenances, in Calvert county aforesaid, 
 so as aforesaid devised by the said Leonard Hollyday, the 
 father, to his second son Leonard Holly day, and his male 
 heirs, shall be and the same are hereby vested in the said 
 female heirs of Leonard Hollyday, the son, their heirs and 
 assigns, to the only use and behoof of them the said female 
 heirs of the said Leonard Hollyday, the son, their heirs and 
 assigns, forever; Provided always, and it is the true intent 
 'and meaning of this act, that if the said Leonard Holly day 
 shall have any male heirs of his body at the time of his death, 
 or that the said female heirs of the said Leonard Hollyday 
 shall not have issue, that then and iri such case the said 
 land called Buzzard Island and The Addition to Btizzavd 
 Island, with the appurtenances, shall descend and stand 
 limited as by the last will and testament of 'the'said Leo- 
 nard Hollyday, the testator, is devised, f any law, usage or 
 custom, to the contrary in any wise notwithstanding; sav- 
 ing to the King's most excellent majesty, his heirs and 
 successors, to the right honourable the Lord Proprietary, 
 his heirs and successors, and to all and every other per- 
 son and persons not mentioned in this act, bodies politick 
 And corporate, their respective heirs and successors, all 
 such right, title, estate, interest, claim and demand, othe 
 than the persons claiming under the last will of the said 
 voL. H. 22
 
 17*0 r ^ v i> IN THE coruT OF APPEALS 
 
 l. Ci Leonard //(>'///</<//, the father, and this act, as they, every 
 
 any of them, could or mi-lit claim if this act had ne\er 
 nude." Aftei\\ard> /.< unard, (the sccoml) hail a son, 
 Leonard, (the third,) who died in the life-time of hi- fa 
 tlirr, leaving three daughters, the lessors of the plain tin*. 
 nurd* (the second) on the 1st of February 17<>1, in the 
 life-time of his son Leonard, (the third,) by a deed of har- 
 gtiin anil sa'.e duly executed, Acknowledged and recorded, 
 for a valuable consideration, bargained and sold the said 
 tracts of land, and all his right and interest therein, to his 
 M>II Leonard, (the third,) in fee. Leonard, (the third.) in 
 virtue of that deed entered upon the land?, and was sei/.ed 
 thereof provt lex poxtillut; and being so seized, died some 
 time in the year 1793, Icavihg three daughter-, I-'.Hzabdh, 
 Grace Contce, (wife of tfijittta Beull} and Mar mart t Terrell, 
 the lessors of the plaintiff, his only children and heirs. 
 Leonard, (the second,) died in or about the year 179-4, 
 leaving issue, two daughters. The defendant then gave in 
 evidence, that I^eonurd, (the second,) before and at the 
 time of his petition to the general assembly in 1750, and 
 at the time Of the passage of the law, herein before insert- 
 fed, had issue t\fro infant daui-htors, Sarah, born in 175-4, 
 fcftei wards married to Thomas Johns, and ,'lnne, born in 
 1755, afterwards married to Walter ft. Cox; that in the 
 jrear 1 757, Leonard, (the second,) had a son, Leonard, 
 (the third,) who afterwards died in 1793, without issue 
 jnnle, leaving his father and two sisters his survivors; and 
 that the youngest of the sisters, Annr, was 1.1 year- older 
 than Leonard, (the third.) That Leonard, (the second,) 
 died in 1794, and his two daughters, Mrs. John* and Mrs. 
 Cox, survived him. And afterwards Mrs. .A///;i.v, and her 
 husband, died, and her sifter, Mrs. O>.r, and her husband, 
 survived them; on the death of Leonard, (the second.) 
 without issue male, ^Yalttr IL Cox, and Anne his wife, 
 claiming tinder the said act of assembly, entered upon and 
 ed of the lands afoiesaid in (he declaration men- 
 tioned, until the death of Cox; that .fame Cox survived 
 her husband, and died s,.j/ e d and in possession of .-aid 
 lands, leaving issue by ll'ttftrr ft. Cox, a daughter, her 
 only child and heir, who married the defendant; and that 
 the defendant, in virtue of his said marriage, on the d'-atli 
 of .7/me, the mother, entered on and was seiy.ed of the 
 and yet is in possession f hereof. The plaintiff then
 
 OF MARYLAND; 
 
 prayed the court to instruct the jury, that upon the afore- 180f. 
 said evidence, if they believed the facts so ottered in evi- 
 dence to be true, the plaintiff' was entitled to repover, 
 
 CHASE, Ch. J. In thin case the counsel have said every 
 thing which could be suggested upon the subject They 
 have made use of ingenious arguments. There can be no 
 doubt but it has been fully and ably argued on both sides. 
 
 The court think, that the intention of the legislature is 
 
 - O 
 
 to prevail, and that intention is to be collected; from the 
 whole of the law, and the circumstances, which produced 
 it. 
 
 The case is to be considered, 1st. What was.the inten- 
 tion of the legislature? 2d. Have they used cl^ar words 
 to express that intention? 3d. What is the eft'ect of the 
 enacting clause, and does it carry their intention into etV 
 feet? 
 
 The motive does not satisfactorily appear; but facts da 
 appear in the petition, as recited in the act, which are, that 
 the land would, by the will, vest in Thomas', that Leonard 
 had no son, but he had Daughters who could not inherit; 
 that he had improved the land, and had a solicitude to pro- 
 vide for his daughters. It is apparent to the court, that 
 Leonard had little or no expectation of having any other 
 Children; he had in view to provide for the children he then 
 had. Thomas, his brother, knowing of the improvements 
 made on the land by Leonard, and actuated by motives of 
 affection, concurred in the petition. It appears that the 
 operation under the will was intended to be suspended. 
 The petition sets forth, that Leonard had "only female 
 heirs, who could not inherit." This was nothing more 
 than a description of the persons who were to take under 
 the law. The prayer of the petition was "to vest in the 
 female heirs" of Leonard Hollyday^ in fee sample. "Fe- 
 male heirs"- meant the two daughters of Leonard Hol/y* 
 day, and that the estate was to vest immediately in them. 
 It appears that the petition had in view to provide for the 
 two daughters. The legislature granted the petition. Has 
 the enacting clause carried the intention into effect? "shal.l 
 be and are hereby vested in the said female heirs." The 
 intention must be to vest the estate in the daughters then 
 in being. It is a plain designation of the persons who 
 Kcre to take; and that an estate in fee simple should Jie
 
 CA-r> IN THK COrRT OP APPKALS 
 
 vested in the two daughters, to be defeated only upon the 
 happening of two contingencies. 11 the event*, or either 
 of them, had happened, the estate in lee -imple would have 
 
 ('d, and let in the operation, uf tne will. Tl.i- l! 
 tJiat by the act there was to !>v a M.-pcn-iim of the estak, 
 Jt was the act of the father providing for his children, with 
 a proviso in case of male heirs, or the death of his daugh- 
 ters without issue. Thomas made a greater sacrifice than 
 Leonur'l. 
 
 What would be the effect if the construction contended, 
 for on the other side was to prevail? It would be putting- 
 it in the power of one party to defeat the provisions of the 
 ature. Such a construction could never be admitted. 
 The children of Leonard Holliiday y (the third,) never 
 could have inherited under the will. 
 
 The court are of opinion, that an estate in fee simple 
 vested in the two daughters of Leonard Hollyday, which 
 estate was to be defeated and divested out of the daughter-, 
 on the happening of either of two contingencies. 
 
 First. If Leonard Hollyday, (the second,) left issue 
 male at the time of his death. 
 
 Second. If Leonard Hollyday should die without leav- 
 i w ng issue maje at the time of his death, and his two daugh- 
 ters should die without leaving issue. 
 
 yn the happening of either of said events, tlie estate ii} 
 mple, which was created in th^ two daughters, was 
 to be divested, and the limitations in the will, which were 
 suspended by the act of the legislature for the purpose of 
 providing for his two daughters, were to be again put in 
 operation. And the court are of opinion, that the plain- 
 tiff is not entitled to recover the land. The plaintiff e:. 
 Qepted. 
 
 U 2. The defendant then read in evidence a deed of t/iort- 
 2d ""ic!i$; S a S e fr m Leonard Hollt/<Jtn/, (the third,; to Hcnju.n'm 
 
 " Muckull, bearing date the 2d of April 1791, for the tract 
 of land called /iuzzurd Inland, in the declaration menti- 
 oned, to secure the payment of i'2179 141, current mo- 
 ney, with interest, on the ]>t of September 1794; and he 
 prayed the opinion of the court, and their direction 
 j'iry, that the plaintiff was not competent to recover l>y 
 reason of the mortgage, unless he could show that the moiV
 
 OF MARYLAND, 
 
 gage had been satisfied previous to the tmie of bringing 1807- 
 this ejectment. 
 
 CHASK, Ch- J. The court are of opinion, that the mort- 
 gage created a legal estate in the land in linijamin Miick- 
 //, the mortgagee, and his heirs; and that tjic plaintiff can- 
 not recover unless he proves the mortgage \vj\s satisfied, 
 previous to the bringing tlu's ejectment. The plaintiff ex- 
 ceptcd, and the verdict and judgment being against him, 
 he appealed to this court. 
 
 The cause was argued before TILGIIMAN, BUCHANAN and 
 NICHOLSON, J. 
 
 Martin and Shaaff, for the Appellant, in arguing on this 
 first bill of exceptions, stated, that the question for discus- 
 sion arose wholly out of the act of assembly of 1756, ch 
 17, and three, different constructions of that act they con- 
 tended for in opposition to the opinion of the court belov/ 
 1. That Leonard, (2d,) still continued tenant in tail, aa 
 before, with a limitation to his female heirs in case of his 
 dying without issue male, with power of alienation, &c. 
 and that his deed to Leonard, (3d,) of the 1st of February 
 1791, barred the estate tail, and vested a fee in the grantee. 
 2. Or, that the act gave the estate beyond the control of 
 the tenant, to such persons as at the time of the death of 
 J^eonard, (2d,) answered the description of his heirs- fe- 
 niale, as purchasers, including ajl those who, at his deatli 
 in 1794, would have been his heirs female, viz, his t\v\j 
 daughters, Mrs. Johns and Mrs. Cox, and also his grand- 
 daughters, the children of Leonard, (3d.) 3. Or, that the 
 act gave the estate beyond the control of the tenant to 
 such persons, as, according to the meaning of the terms 
 when the law passed in 1756, answered the description of 
 heirs female of Leonard, (2d;) that is, females who were 
 heirs also, vr/ the daughters, the heirs of- Leonard, (3d.) 
 They cited Shelley's case, I Coke, 102, 103. Shep. T. 
 103. Clings Lessee vs. J teems, 1 Hurr. <$ M'Ikn. 
 463 (a.) 
 
 ("a,} In Chew's Lessee vs. JJ'tems, notwithstanding the decision of 
 tho Court of Appeals, a new ejectment \vas brought after the re- 
 volution, in 177, and the Gineral Court, at October term ITS?, 
 gave the same judgment, which had bn:n g-ivcn by the Provincial 
 Court, from which there was also an appeal by the plaiiuili' to the 
 Court of Appeals;' Uut Ihut appeal was not *ctcd on, the case IIHV-
 
 CAS!> IN TIIK ((HUT (TV 
 
 t-' On tlic arrow/ bill of exceptions they contended, that 
 
 ~ ~ ere the title to land i-, contested betxfe-n the mortgagor 
 
 and a strangely tlie latter cannot set tip the mortgage to 
 defeat the recovery. They cited J'oir. mi Mort. 
 The Ki \ : ' . /;,./,/. ( . :. /,,/< rv. ///- 
 
 ford, 3 Ititn. 1416. Doc vs. Bristiw .\- !' ^r, I 7'. -/?. 
 "58, (note.) 
 
 A'cy, Mason, and Jokn&on, (Attorney General,) for (he 
 Appellee, on the Jimt bill of exceptions, contended, 1. 
 That the inheritance and estate \vaa immediately ^ested in 
 the daughters in fee by force of the clear words of the act 
 of assembly. 2. That if the estate did not immediately 
 pass to tin- daughters, the inheritance in fee \\;i^ vested in 
 them, subject to a life estate in their father, and liable to 
 b<- divested from them on the father's death, leaving a male 
 licit- then li\in^. 3. That if the inheritance it) lev ua-not 
 \ -ted in the daughters on the passage of the law, it \ 
 an executory mant to vest on a contingency tt> happen 
 v'r.hin a life in be in;;, and like an executory dc>ise not ca- 
 pable of being barred by deed or common recmerv. They 
 cited Hficaflfi/ t >. Thomas, 1 /.a-. 73. Jl'alkfr vs. Col- 
 lier, Cro. Etiz. .'-70. Co. Lid. 7, a. Princes case, a 
 Cnhf. 1. Murrey rt. Eylon fy Prirr, T. Hm^n. ,"o. 1. 
 Shep. T. 108, 109, 119. Pow. on Conl. 336, 337, 37<,, 
 377. Pow. on I> 77. 
 
 On the second bill of exceptions, they cited J)oe vs. 
 Jf'fiarton b Dirnn. 8 T. II. 2. Doe r*. Mn/Je, : '/'. /,'. 
 696. Jlrnulrong vs. /'cine, cl /. 3 Burr. 1901. 
 
 TMK Cot i conrurred in the opinions expre-sod bv the 
 General Court, in both of the bills of exceptions, and 
 
 JUDGMENT A15IHMLU, 
 
 ToLSON* . \M. 
 
 'CU.IVM. -- tl)0 r ; rtieral Cnurt r.jrrtmnil bfniirlit by 
 
 ",.'," ("V.M'"^)'"^^ the appellant I".-; c.l land ralii-.l Tuhou's !'.' 
 
 
 
 i!ir'iii!<-i1 iua Kmn<. ! from ihr cTtiflntr of itirrry nn \liich the pnint 
 
 canBut br lakm up a BC.. 
 
 A ICT.' 1 )>< ihi ln> d 
 
 rn>|r!t< ii il n! 
 
 II tnttl u lir moil- iaml ilmi. r, it mnj lie tacatnl in ifir 
 
 cwurlof tluierr> , miwl il ii i. I. . ,,i>. 
 
 inp 
 
 i',./l,.rf. 645. 2 Slrn. 117.5. 3 Jllk. 
 
 S9<j. . 1 /' , : / . T.J1.470. 2 ,W\646. 
 
 1 /'. ir/ii5. 432. 1 I'u. JI7.
 
 OF \IARYLAND. 175 
 
 lying in Pnnce-Genrs^^s county. The following 1807. 
 case was stated for the opinion of the court. A tract of 
 land called Hunter's FoHy, was surveyed on the 29th of 
 November 17<)0, for trUlium Ffunft'.r, as by the certificate 
 thereof exhibited, and by which it was described as "begin- 
 ning at a bounded Spanish oak, and running S. 75 K. 
 84 ps. N. W. 159 ps. then N. 74 E. 160 ps. then N. W. 
 280 ps to a black oak bounded, then S. 21 W. 185 ps. 
 then with a straight line to the first boundary, containing 
 and laid out for 334 acres of land more or less." A pa- 
 tent issued on this certificate the 10th of June 1708, for 
 the tract called IIuiit.fr a /'<>////, describing it as "begin- 
 ning at a bounded Spanish oak, and running S. 75 E 
 84 ps. then N. 25 E. 84 ps. then N. W. 159 ps. then N. 
 74 E. 160 ps. then N. W. 280 ps. to a black oak, then 
 S. 21 W. 185 ps. then with a straight line to the first 
 tree, containing and laid out for 334 acres of land more 
 Or less, according to the certificate of survey thereof 
 taken and returned into our land office, bearing date the 
 29th of November 1706." The tract called Tolsorfs En- 
 largement for which this suit was instituted;, is not includ- 
 ed in the certificate of survey of Hunters Folly, but isi 
 included in the patent which issued on the certificate; it 
 being admitted that there is a variance between the certi- 
 ficate and patent, and that the latter comprehends more 
 land than the former. The lessor of the plaintiff", before 
 the institution of this ejectment, took up the land, in the 
 declaration of ejectment mentioned, as vacant land not 
 included in the certificate of survey of the tract called 
 Hunter's Folly, and he duly obtained a patent for thg 
 same. 
 
 CHASE, Ch. J. The question is, whether the land men- 
 tioned in the declaration was not liable to be taken up as 
 vacancy, it being excluded by the certificate of survey of 
 Hunter's Folly, but included within the courses expressed 
 in the patent for the said land? Whether the defendant 
 can hold more land under his grant than what is compre- 
 hended in the certificate of survev? 
 
 The court are of opinion, that the grant is to be constru- 
 ed most favourably for the grantee. The lord proprietary 
 could not grant what had already passed from him, with'- 
 out first going into chancery to vacate the former grant:'
 
 fcASES IN TJIK COI'RT OF APPEALS 
 
 anil had le<s l.uid passed by (lie patent than was contain- 
 >il in the en titu-.iu-, tlic defendant's remedy, if any, inn-- 
 
 N\Tfn, I 
 
 ha\e been in equity 
 
 Muter J 
 
 was entered fur the defendant. and the plain 
 tin" ap|iealed to ihis court, where the ( n>e \vas argued In- 
 jure TILO MM v\, lli-cii\N \v. and (J\MT, J. by 
 
 T. Hitchanrm, for the Appellant, and by 
 Muiwn, for the Appellee. 
 
 It IX-.MTM AVI IHMP.U. 
 
 I)F.CF..MIIF.R. Nix.iio JAMT.S r.v. (1 UTMF.R. 
 
 Pnm: .M.i.nrr AptT.Ai. from the General Court. The petitioner, (novr 
 
 : li'.'ri appellant. ) filed his petition for freedom in .Innr-.-intntlcI 
 
 t-\ . i t i i t * 
 
 :i. 1 lie CftSe V&l tills A deed of niatii ..... >- 
 
 M i), d.ited the 1.3th of September 17S4, \va> c\f(ii(cd bv 
 It. fiait/i -cd, then of PrinCt-Georte't countv, 
 
 A dfil i>fin;ii'ii- 
 
 .i-ion in.dtT ihe^jiving freeloih, alter his death, to sundry of his ne<M'0 
 
 Ml at i'< 5i, eh I, t " . 
 
 t ,1^1 ,^ii,. slaves, amon^ whom was the petitioner, AVgro Jaiuc*. 
 
 was signed and sealed by him in the presence 
 '.utntioilcd of ' and acknowledged b-fofc 7'. /%f/, one of the justiee^ 
 O f t j )e p eace f or prince-George's county, on the 13th of 
 September 1784, and recorded in the records of that coun- 
 ty on t'uc 7th of November 1781. (iaithcr by his will, 
 dated the '20th of June 1791, devised and bequeathed as 
 follow: "Item. I give and devise to It. /jams all my land 
 whereon I now dwell, and my ?e\era! tracts or panels of 
 land adjoininu; thereto; also all my personal estate, except 
 myjiegroes, and to his heirs and assigns for ever." "Item. 
 My will and desire is, that all my young negroes, born 
 t-inre mv negroes were recorded, shall be absolutely free 
 at my death." The inventory, returned on fW,W*.> , 
 iate. doe- not include any of his slaves. Ignatius .'Mien, 
 a witness sworn in the cause, 'deposed that he lived with 
 Gallhcr at the time he sent for T. Ihyd to take the ac- 
 knrv.vlodinm'iit of a deed to set his negroes free; that Boyd 
 tame, and drew the deed; that after it was drawn, (ialtlitr 
 did sign, seal, and ai knowledge the same as his act and 
 ilerd, and did deliver the same to Iiin/<l, requesting him 
 to have it recorded. That when fltiiflier executed and 
 signed the deed he was confined to his bed; that he called
 
 OF MARYLAND. 177 
 
 upon the witness to assist him in getting up in his bed to 1807. 
 sign the deed; that the witness Accordingly did asVist to 
 raise Guiltier in his. bod, and that he stood by and was 
 present, and di;l see Guilhr.r sign the deed, and acknow- 
 ledge it as his act and deed; and also saw Boyd sign the 
 same as a witness thereto. That Galther asked Boyd if 
 it was necessary that any one else should sign it, and 
 Boyd replied it was not. That Gaither and Boyd both 
 observed then, that there were several who also saw him 
 sign; that Gailhcr requested the persons who were present, 
 to wit, Benjamin Jjams, (who has left the state,) and 
 Sarah I/ans, (who is since dead,) and also the witness in 
 particular, all to take notice that he had signed an instru- 
 ment of writ! 112; to set all his negroes free. The witness 
 
 O O 
 
 lived with Gait her eight or nine years after the deed was 
 executed, and frequently heard him declare that all his 
 negroes would be free at his death, as he had them record- 
 ed in court. That the witness cannot write his name, 
 and did not sign the deed as a witness. That Robert Wa- 
 ters, another witness also sworn in the cause, deposed, that 
 at the request of Gaither he went to draw his will, it was 
 late in the evening, and the witness objected doing it that 
 evening, because he alleged it was too late; but on Gal- 
 //icr's saying it would be short, he agreed to draw it. That 
 6r told him he had deeded his negroes to be free at 
 his death, and that the deed had been recorded several 
 years. That after the witness had drawn the clause in 
 the will in favour of B. Ijams, he told the witness to 
 draw a clause in favour of some young negroes, and when 
 the witness began, he told him to stop, and said it was 
 hardly worth while, the old ones he had deeded free at his 
 death, and the deed had been recorded for several years, 
 and the young ones will be free, if not named in the will. 
 But after some pause he said, however, you may do it, 
 and do it in this way, all my young negroes, born since 
 my negroes were recorded, to be free at my death. The 
 clause was then wrote as stated in the will, dated the 20th, 
 of June 1791. That Gaither died about the year 1793, 
 and the negroes mentioned in the deed have been at 
 large ever since. That he never heard that any one en- 
 titled to Gaiffier's estate ever set up any claim to the ne- 
 groes, until about two years ago. The County Court. 
 VOL. ir. 23
 
 f^A-F.- IN T1IK COURT OK API'}. At.- 
 
 1807. ["//. /'//- A/, Ch. J.] nl April term : 
 
 in. -lit t'.ir the petitioner. The dilVmlunt appealed to the 
 
 Kn> r.* ni .,, M -;il Court: ami ;it M. 04, the (u-ni'ral Court 
 
 (T/i'/sr, Ch. J. /tone ami Sprigg, J.] Reverted the judg- 
 ment of the county court, and gave judgment that the ap- 
 pellee, the petitioner, was a sla\e. O:i ;:n nj-peul to thi- 
 coiirt by the petitioner, the ct! I at (lie 1 
 
 term before TILGI, UOLSON and (JAN; i. J. 
 
 A'i>/ and Johnson (Attorney General,) for the Appel- 
 lant, contended that (he judgment of the general court, re 
 versing that of the county court, must be reversed, unless 
 this court think they are bound by a rigid construction of 
 the act of assembly <f 1 7.n3, ch. 1, s. 5, by nhich it is enact- 
 ed, "that where any person or persons possessed of any 
 slave or slaves within this province, who are or shall be of 
 healthy constitution's, and sound in mind and body, capable 
 by labour to procure to him or them sufficient food and rai- 
 ment, with other requisite necessaries of life, and not ex- 
 ceeding fifty years of age, and such person or persons, pos- 
 sessing such slave or slaves as aforesaid, and being willing 
 and desirous to set free or manumit such slave or slaves, 
 may, by writing under his, her or their hand and seal, evi- 
 denced by two good and sufficient witnesses at least, giant 
 to such slave or slaves his, her or their freedom/' &c. They 
 insisted that the act does not indispensibly require that two 
 witnesses should subscribe their names to the deed. That 
 an enlarged con-truction ou^ht to be given to the word evi- 
 denced, they referred to the Slat, of Frauds, 29 Cur. IF, 
 r /.-. 3, *. 5. Co. Lilt. 283. a. Jacob's L. I), tit. Evidence. 
 Jfintlham rn. C/tctin/nd, 1 /inrr. 414. 2 Eq. Ca. 
 545, case 15. Gitlm^'a Lessee v. Half, 1 JIurr. <$ 
 Johns. 14. 
 
 Shaajf and T. Buchanan, for the Appellee, also ; 
 red to the act of 1752, ch. 1. Shfrfler's Lessee vs. Cor- 
 belt, 5 flarr. <$ M-ll<n. .1 1 .1. IH(lt*tly vs. Howard, et a!. 
 Ibid 321 j and the act of 1796, eh. 67. 
 
 Curia adv. vitlt. 
 
 At this term 
 
 JUDGMENT AFFIRMF.B^
 
 OF MARYLAND. 
 
 179 
 
 CONTEE VS. COOKE. 
 
 1 807. 
 
 DECEMBER. 
 
 Coulee 
 
 AITKAI, Iron) the Court of Chancery. The appellant, 
 by his bill of complaint tiled on the 24th of April 1800, 
 stated that Richard Woollon, on the 5th of August 1791, 
 u^-imied to him, for a valuable consider ation, a bond e^e-Kn erti 
 cuted by Benjamin Burgess, (since deceased,) and by apVca^d'Timt'the 
 Thomas Tongue, his security, dated the 21st of April 1789, * wa"uia"tbe 
 
 ... i r I r chancellor act as a 
 
 conditioned for the payment ot 301 12 9 current money. ' rilju " alof a i'i iea * 
 
 J lioiu UK- vrrdicU 
 
 lhat suits were commenced on the bond in the ecneral Tkere was sta " a 
 
 no -urprise (in the 
 
 court, and a judgment was obtained against Tongue at^J", 1 ,'^,"* 1 '^"!^? 
 May term 1793; but Burgess, dying befo.e the judgment u^y '^ 1 '!"; 
 court, leave was given to issue a summons against rfgnes^ll*"^,'"^"^ 
 Burgess, his administratrix. That the complainant was J]';!"' 'u,e fuft'/set' 
 frequently applied to by B. Burgess, in his life-time, to re- "re "{ sufficient 
 sort to Thomas Lane for payment, against whom Burgess ctmrttt^nfert^ 
 had a judgment, obtai'icd in the name of Richard Harwood^t iuayi'd." e 
 for his use, in the general court at October term 1790. B. eireumitanew. a " 
 
 . - with the teatiniony 
 
 Burgess, as the complainant understood, was much involv- ' " e * 
 
 -ii ' * were i.ot laffleienl 
 
 ed in debt, and alleging that he wished to pay by this judsr- 10 rtlute tht: de - 
 
 r J J J D londani's iuwcc 4 
 
 ment, the complainant was induced so far to comply'. 
 with his request as to go to Lane, and to put himself to some 
 inconvenience, expense and trouble, to receive tobacco and 
 cash, to be applied towards payment of his claim against 
 Burgess. That the complainant received a letter from 
 Burgess, dated the iGth of October 1792, requesting him 
 to meet at the house of Lane on the Thursday then next, 
 to settle. That the complainant accordingly met, and re- 
 ceived from Burgess, which he had received from Lane, 
 and paid to the complainant, 1637 Ibs. of tobacco, at 35s 
 per hundred, and "4 6 1 cash, which was by mistake 
 calculated to make together the sum of 104 16 6j for 
 which he gave Burgess a receipt, dated the 23d of Octo- 
 ber 1792, and for which sum Burg ess also gave a receipt 
 to Lane. That the complainant, on his return home on, 
 the 25th of the same month, entered the payment on his 
 dav book as of that date, as it was his custom to do on his 
 
 V 
 
 store books when he received money during his absence 
 irom home; but that it was entered for the correct amount of 
 the money and tobacco, to wit, 103 16 6. That the 
 complainant, after discovering the mistake, and wishing 
 to furnish a statement of his account, sent his account 
 against BurgQsx and Tongue, iu which lie charged- then*
 
 180 CAM'> IN TIN: t of [i v or AITKAI> 
 
 1807- with the sum due mi the j. 
 
 dor the date of the 1.'<(\\ of October 17'.'?, with the quanti- 
 ty of tobacco and ca.-h, under the heads of toi;;it 't o ;i< 
 and ca 3 h account, amounting ti nether to the sur.i i t 
 16 6; but he < at the. >!ii:i for \\!i!c!i he 
 
 gave the receipt, and tin- sum which he .. n the, 
 
 arcount rendered, \ the same : 
 
 and were one and the same, except the m^v.l.c in 1 
 culation, and that he never did receive ho'.h >tiu.- 
 ]y, nor any fuitl.t-i- :>um in the month of October , 
 more than is credited in hi, account again- 
 Tongiit, that ii to say, .1103 i > and. 
 
 jfongve, or any one oii their account or behalf. '1 hat ttvr- 
 gess relied entirely on Lane for payment of tin's jiu: 
 to the amount of his judgment against Lane; that he \\as 
 not in circumstances to make payment, himself without dif- 
 ficulty, and that he never was in the habit of making 
 ral payments in so short an interval, to the complainant's 
 knowledge. The complainant states, that another pay- 
 ment was made to him in February 17 ( .>.">, by the purchase 
 of a nej^ro man from Lane, for .179 18 9; and thai 
 gess, in his life-time, never set up or claimed a credit on 
 the receipt, and on the account rendered al>o, as separate 
 payments, but acquiesced in the balance, as stated by the 
 complainant; and the complainant dues not believe ti.;'t lie 
 left any paper or memorandum speiifsinj; MR!) a laini. 
 That after the death of 7^/r^.s.v, which happened hi-f-in: 
 December 1793, he received from his 
 
 _nes Cookc, t!.' nt,) on the 10th of 
 
 December 17'.V>, as a]>]< IT account, the sum of 
 
 by the purchase of a i.e^ro boy at a public sale of her 
 intestate's property, v.hich v. as done by him to acc: 
 date the administratrix. The complainant was applied to 
 at the sale to consent to the property being sold on a cre- 
 dit, which he as;ieed to fur the benefit and convenience of 
 the administratrix. That he afterwards, on the ^Jth of 
 March 1 79-), received from Tontine^ the security, the sum of 
 J..>7 9 0, and from J.inn, in August 1795, the further sum 
 ! .1153 7 2. 'Ihe (omplainant admits that the - 
 sums amounted together to 19 13 8 more than the balance 
 due on ihe judgment against JM/<<, out of which the com- 
 plainant was to be paid, but he alleges that they were not 
 all received by him on account thereof, but that he had an
 
 OF MARYLAND. 18 1 
 
 order from Bishop Claggett to collect and receive from 1807. 
 Jlgnes Burgess a sum of money due on a judgment to 
 Cla.rge'fi on which acco-iii; lie also received afterwards 
 from Charles Cooke. (who intermarried with /J^ncs Llur- 
 gcss,) tobacco and money to the amount of 50 4 0, as 
 appears by an account exhibited, by which a balance ap- 
 pears to have been due from the complainant of l 10 5}, 
 which he has been and still is ready to pay. That after 
 the intermarriage of Ji. Burgess with Cooke, the personal 
 estate of B. Burgess, being insufficient for the payment 
 of his debts, and Thomas Tillard Inning a claim against 
 the estate, they put into his possession the papers belonging 
 to the estate, with a view to his discovering any debt that 
 illicit be due thereto, and the complainant received from 
 Tiltanl a letter dated the 9th of October 1795, stating 
 that a balance was still due from the complainant on the 
 sum received for Lane's judgment of 20, and de- 
 siring payment thereof; but the complainant not ad- 
 mitting the sum to be due, refused to pay the same, 
 aud afterwards a suit was instituted in the general 
 court by Cooke, and Jlgnes his wife, against the complain- 
 ant, for money had and received, in order to recover back 
 the sum alleged by them to be overpaid. That Cooke and 
 wife rendered to the complainant an account made out by 
 I'll lard; the charges in which account of 103 16 6, 79 
 IS 9, 50 5 0,'37 9 0, and 153 7 3, are the same as 
 those above admitted, by the complainant, bat he expressly 
 alleges that the charge of 15 5 G, charged by them iu 
 the account, was for a hogshead of tobacco received by him 
 on a judgment by Jl. $ B. Conlcc against B. Burge.ss; 
 and that the charges in their account of 104 16 6, and 
 103 16 6, are for one and the same payment \\\ the manner 
 above stated. That while the suit against him was de- 
 pending, the papers of the plaintiffs at law were by their 
 counsel delivered to the counsel of the complainant, (the 
 defendant in the suit,) to examine, and were by him given 
 to A. Conf.ee, who took a copy of the account, and return- 
 ed all the papers to the plaintiffs' counsel. The complain- 
 ant expressly declares, that he delivered to his counsel a 
 receipt which he, the complainant, had obtained from Bar- 
 bara Lane, one of the executors of T. Lane, which was a 
 receipt from B. Jhirgesa to T. Lane for the said sum of 
 104 16 6, or near that sum, for which the complainant 
 had given to B. Burgess a receipt dated the 23d of Oqto-
 
 183 c ISES IN HIE I'Ol'RT OF AITF..U.- 
 
 bor iri':. Tliat (ho complainant's counsel, Jl'Uliumt 
 
 I.- 'i.if. left ll.c court before the eximalioa of Octuli. -\ 
 term ir'J 1 .'. ami (before the complainant saw him (hat 
 terra,) engaged other counsel, to wit, Ililliain A'i! 
 
 aoire, tQrd fUt the papers into his ha:r!-. inf. rmii 
 that some of tlieiu belonged (o (lie plaintiff-; and the com- 
 plainant is informed and believes, (hat (lie counsel for (lie 
 plaintiffs, Jo.'.n '/'. Jlawn. Ksquire, hud airr-s to the pa- 
 in the hands (f II lU'umi A"i7///, Mx|uiie, anil took 
 therefrom such a> he alleged to belong (o Li.s client. Ji' :f . 
 at the dial court ihc receipt for jllUl IG (1, or mar that 
 sum, \vas not to be found, nor the account drawn oil' bv 
 7'ilfind: on \\hith Mr. Mason, on the trial, de( lined ;;t 
 ut n, ; ld\ed amjtln. r attorney, iii- 
 
 Ifiidin^ (o give testimony as to r : but the com- 
 
 plainant not knowing what v me .f the y<\\ vr-. ainl 
 
 wishing for nothing more than a fair trial, admitted tlmt 
 such j a) ei> had tM-i.tl, to wit, a receipt from him to JJ. 
 .rs, and also from 11. 1 to '( . J.di.i, l\.: 
 
 . rr 111 at that -urn, dated the 23d of October 
 and an account drawn off by Tillurd. That at the trial the 
 deposition of Harlura Lane, taken by consent, \\u^ read, 
 in which she stated that the complainant had procured the 
 last mentioned receipt from her, (he purport of which she 
 did not know, and that the same had not hee.ii returned, 
 and that that circumstance, and (!: -in; other pa- 
 
 pers, was artfully and unjustly made use of in argument 
 to injure the complainant's character, and to infli:> 
 determination of the jury The complai'K'.nr solemnly de- 
 clares that he did not wish or desin, nor did he know that 
 any of the papers were missing or lost be ft; re he came to 
 the trial com:, Or'i ;-er term 1709, and when he was in 
 formed the papers were wanting, he admitted of such 
 
 i.aving existed. He was at court sevenal da\>, and 
 at length was so much indi;,.M d, that he left the court, 
 and wa- I the trial camy on next day when he was 
 
 absent. The cot.iplainaut ^ informed that 'J'illurd\. 
 aniiiM-d a> an e\ideme for (he plaintiffs, ha\ing i!cc!ait-d. 
 when I'xaintni-d on the voir dire, that he was not interested 
 in the event of (' imiiji he declared in thcu-. 
 
 of his testimony that he 1 .ad a claim on the estate of Jtiir- 
 C, and hud obtained an older to n-u i\- v.i.at n.i^ht be 
 clue from the complainant in pu\ incut theicof, whith ay-
 
 O^ MARYLAND. 183 
 
 pears by his letter to the complainant of the 29th of Oc- 1807. 
 tober 1795. That evidence was also given at the trial of 
 the above mentioned payments in tobacco and money, which 
 were never made, in discharge of the judgment by Bishop 
 Claggctl, and of the tobacco due to Jl. <$ B. Contce on 
 judgment, which the complainant had no means of 
 proving, the application thereof resting solely in the 
 knowledge of the plaintiffs; and that a verdict on the 
 trial, was given in favour of the plaintiffs for the sum of 
 203 4 6 current money damages, and SI 5 and 1324 Ibs. 
 of tobacco, costs. The complainant states, that he is well 
 convinced that the claim aforesaid would never have been 
 brought against him if B. Burgess had lived, for he be- 
 lieves, that so fal' from there being any account or papers 
 left by him to prove the justness of the claim, his books 
 and papers, if produced, would show that no such claim 
 existed, and that the judgment has been unjustly reco- 
 vered. Pravcr for an injunction, and relief, &c. The ac- 
 counts and judgments referred to in the bill were all ex- 
 hibited. The chancellor granted an injunction agreeably 
 to the prayer of the complainant. The answer of rfgne** 
 Cooke.mm\iChurlcs Cbo&e, her husband, against whonfflm 
 \*\(erfgncs. the bill was filed, having since died,) admitted 
 ihe bond executed by B. Burgess, c. That in discharge of 
 the bond, on the 15th of April 1792, there was paid in 
 tobacco, valued at 32s Gd pr. cwt. the price agreed on, and 
 including the cask, the sum of 15 5 6, and on the 23d 
 of October 1792, by B. Burgess, the sum of 104 16 6, 
 for which he obtained the receipt of the complainant. 
 That Lane was indebted to Burgess, and that Lane, at 
 the request of Burgess, on the 25ih of the same month 
 and .year, in discharge of the claim, paid in money and 
 tobacco the sum of 103 16 6; that Lane also paid on the 
 25th of February 1793, the sum of 79 18 9, leaving a 
 balance due on the 10th of December following in favour 
 of the complainant, and including interest, the sum of 
 L74 15 8. That after the death of B. fliirgess, and be- 
 fore she obtained a true knowledge of the transaction, and 
 had ascertained the sum due, the following payments were 
 made, to wit, 50 5 for a negro boy sold to the com- 
 plainant on the 10th of December 1793, 37 9 paid him. 
 on the 25th of March 1795, and 153 7 3 on the 29th of 
 August 1795, and which payments she afterwards disco-
 
 t ^SES l.N 
 
 >d (lie balance due tin 'irmt 
 
 :i her deceased husband. That *he. knows n other 
 claim of the complainant on / . ciihei- in his 
 
 '.:. nf a- M. r ;: . any other of his cmlr 
 
 and tliat the ditt'civii; .!c in di>. 
 
 the :.!>:ive n:eiit : <>iied dc-bt; that '.he i ompl.iinaiit, when it 
 \va red lie had boon overpaid, did not ivfuse to 
 
 fund on i tliat he had oilier claims, but be< 
 
 he alleged that lie had not received (lie two sum> 
 It', (i ;::id \f)4 16 f>: tliat the defenda: 
 tin' \vhicli had been unjustly paid, v. , I lo 
 
 brinu suit in her name, and in the name of (.hnr : > 
 \\r\- husband, and at October term 17!>9, by lii" indict of a 
 i -MI; f"i the stun <' i (j, that 
 
 bcir.2; the sum, including interest, \vhi.h had l)ecn (.-. 
 ]>aid and escccdinu; ativ just claim of the complainant. 
 That she is informed (haf any defence the complainant had 
 .inst her demand, either because he >! with 
 
 more \w\\\ v than received, or that the tnori'-y v. as to be 
 apl'lii-i! to other claims due him in any C 
 \~ ^< >ls for the decision of the court and jury, ami 
 
 ndant, to support her claim there, wasrouMged to 
 resort to disinterested evidence, according to the rules of 
 law: lliat the complainant had there every advantage the 
 law rcr t objecting to evidence, and cannot hero, 
 
 be r ;. roper evidence was rei i -at 
 
 Hie efiect of the verdict. She knows of no other claim by 
 Ihe complainant against her hu>band's estate, to which he 
 had a right to apply any of the j-aymcnis; she trusts tliat 
 a court of equity will not, after an administratrix had [-aid 
 monies supposing them due, when it is discovered they 
 Avcre not due, and when a verdict and iml. 
 laincd for the same to be refunded, ln-r from ob- 
 
 taining the benefit cf s'ich Terdict ant! judgment. A t 
 neral replication \va^ tMitered to the answi-r; and the Injunc- 
 tion^ on the motion of the defendant. \\.i ' liy the 
 
 chancellor on the 15th of February 1803. A commission 
 issued, under which tc-tim-niy was t;.ken, and the accounts 
 betweon the | , .e stated by the auditor. 
 
 ie>timonv laken was that of Dnv'nl ' who 
 
 deposed that Charles Coohe, who married Hie widow of B. 
 
 !>ue the institution of the suit by him and wife 
 
 gainst Confer, came to the deponent and asked him lo as-
 
 OF MARYLAND. 185 
 
 sist hi in in stating an account against Contce, but before 1807. 
 they began to state the account, he related some circum- 
 stances in this manner, that they had Contee's receipt for 
 d6l04 odd shillings, and also Confers account, wherein 
 there was a sum credited of about 20 shillings less than 
 the receipt expressed, two days after the date of the re- 
 ceipt, which two sums he said were but one payment, 
 agreeably to the information he had received from his wife. 
 From that information the deponent refused to have any 
 tiling to do with it, or any hand in stating the account. 
 In the course of conversation with Cooke, he objected to a 
 sum charged in the account by Conlee for commission; that 
 on his account against Conte.e the balance was over ]5 t 
 but he would take 40 dollars, and give a full discharge for 
 the same. 
 
 The case being argued by the counsel concerned, 
 HANSON, Chancellor, at June term 1804, by his decree 
 states, that "it appears to him that the application of the com- 
 plainant in effect is, that the chancellor act as a tribunal of 
 appeal from the verdict of a jury. There is stated no sur- 
 prize on the complainant, whilst defendant at law; no dis- 
 covery of testimony since the trial at law. There is no 
 sufficient proof of fraud. As to that part of the deposi- 
 tion which has been considered as evidence of fraud, there 
 is the answer of a defendant denying it; and the establish- 
 ed principle of equity, respecting answers which defen- 
 dants are compellable to give, is well known." Decreed, 
 that the bill of the complainant be dismissed, but without 
 costs. From this decree the complainant appealed to this 
 court. 
 
 The cause was argued before CHASE, Ch. J. TILGHMAJT, 
 BUCHANAN, and GANTT, J. 
 
 T. Buchanan, and Magnifer, for the Appellant, con- 
 tended, 1 . That the court of chancery might decree against 
 the answer upon the testimony of one witness, where there 
 were circumstances concurring with the testimony. They 
 cited 1 Harr. Chan. Pr. 106. Swig. L. V. 504. Arnot 
 vs. Biscoe, 1 Ves. 97. Le Neve vs. Le Neve, S Atk. 650. 
 8. C. \ l r es. 66. 2. That a court of chancery might re- 
 lieve against a verdict and judgment, where injustice had 
 been done at law. Gountess of Gainsborough vs. Grif- 
 VOL. n. 24
 
 ( 18BS IN THE COURT OF APPEALS 
 
 j /'. //', ' ''. -M.-i. //!/;.'. 
 
 /m/i, Prc. in C/ittn.Q :>:>. Ambler vi. ny,/ r 
 : M'.M/I. /';.. .i'.. .I/'/,',/' r.v. nW.s, Ibid HO. Coclinui 
 ftreef, 1 //Wi. /ty;. 70. o J/u/-^. **. 90. 2 Afor^. 
 at. 16. 
 
 Johnson, (Attorney General,) for the Appellee, rcl 
 to Cover vs. Cfirixtie V .A///, fu/i.'c Or?; and Garrctson vi- 
 Coif. 1 7/rr. 4- ./o/i/i*. S7(>. 
 
 CHASE, Ch. J. delivered the opinion of the court. The 
 court are of opinion, that the facts set forth by tlie com- 
 plainant in his bill of complaint, arc not sufficient to war- 
 rant the court of chancery to interpose and grant the re- 
 lief prayed by the complainant. 
 
 DEC HE E 
 
 ECEMBER. GRANT vs. RIUSDALK ct ul. 
 
 APPEAL from the General Court. This was a special 
 f ii" ict ' on () f (tsfiuinpait upon a special guarantee for ^ooil- 
 
 and delivered to tiackft and Grant, brought by the ap- 
 nt h .^i..."id Alices, (the plaintiffs in the court below.) against the ap- 
 i.^"''v"r'. ; -P ellant - Tnc declaration contained the following counts: 
 KV^w'Sr/ Wr 1. That the plaintiffs, on the 1st day of February 1799, at 
 th"*ru7rni> 1 w'i the special instance and request of (lie defendant, had be- 
 S"d *u> ^.nii'ii"V fore that time sold and delivered to John Iluckct and 
 S^ndrd wo o! Alexander Grant diver" "nods, wares and ir.erchaiidiy.e-. 
 
 Wh.n-ihr jurttr- 
 
 trut of tii.- *" defendant, in consideration of the same, afterwards. \i. 
 
 tnl c..urt, tifi- 
 
 rner.1 rr<iict in assumed upon himself, and to the plaintifis then and there 
 
 OJtu:ntuit, t r<- 
 
 lithfully promised, that he would well and truly pay to 
 
 ;ern as much money as they reasonably doservetl to have 
 
 J,* u r ?t" ! lor the goods, wares and merchandizes, so sold and deli- 
 
 ' //.and A. G. And the plaintiff, aver, that they 
 
 C^ n b,'ii I|> .rr','x! reasonably dv-ei -\ rd to have for the goods, wares and mer- 
 HIC ".chandiy.es, so sold and delivered to //. and G. the sum of 
 n ,2000 current monev. whereof the. defendant, afterwards, 
 
 . 
 
 &.C. had notice. 2. That the plaintiffs, on the, &c. liad, 
 (at the special instance and reqn defendant be- 
 
 fore that time, &c. made to the plaintiffs by the defendant,/' 
 Bold and delnrn-'l > ./. //. and .]. ('. divert oilier -i'o.l, 
 varcs and merchandizes; the dofeudant, afterwards, fcv*
 
 OF MARYLAND. 
 
 in consideration of the same, assumed upon himself, and 
 to the plaintiff's 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, 
 merchandizes, in case //. and G. did not thereafter pay 
 and satisfy the plaintiff therefor. And the plaintiffs aver, 
 that they reasonably deserved to have for the goods, wares 
 and merchandizes, last mentioned, the sum of ^2000 cur- 
 rent money, to wit, &c. of which //. and G. and the de- 
 fendant, afterwards, &c. had notice. A.nd the plaintiffs 
 further aver, that //. and G. although often afterwards, 
 c. thereto requested by the plaintiffs, have not paid in 
 any manner, contented or satisfied, the said sum of money, 
 or any part thereof, to the plaintiff's, but have wholly re- 
 fused to pay the same to them, and still do refuse, and 
 have become wholly unable to pay the same, and are bank- 
 rupts 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. 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 plaintiff's as much current money as 
 they .leserve to have for the goods, &c. if the plaintiffs 
 should sell and deliver the same to //. 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 //. and G. the said goods, &c. which 
 said goods, &c. were at the time of the said sale and deli- 
 very thereof, to wit, &c. worth, and the plaintiff's 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 //. and G. for the purchase of cer- 
 tain other goods, &c. by them, //. and G. of the plaintiffs 
 to be then and there made, for the price and sum of other 
 i2000 current money; the defendant then and there, to 
 \vit, on, &c. assumed upon himself, and to.the plaintiffs then 
 
 18? 
 
 1807.
 
 1S8 < ^SES IN Tin 
 
 1807. and there faithfully promised, that if they would delhcr 
 the said goods, &c. to //. and (*. he the defendant 
 would well and truly pay to the plaintiffs the said sum of 
 i current money, in i a-e //. and (i. -'muhlbo unable 
 to pay for the same, or i tor. And the 
 
 plaintiff* aver, that they, iu con-idviation of the pren 
 afterwards, &:c. did sell and deliver to //. and (i. t!i 
 iMiod-, \c. for the HIUI of 1 2000 current m;ney, <.t which, 
 the defendant then and, there had notice. And the plain- 
 tiffs aver, that //. and G. although often afterwards ; 
 to requested by the plaintiffs, to wit, on, &c. have hitherto 
 wholly refused to pay the said sum of cC2COO current mo- 
 ney, and do still refuse, and are become bankrupt, insol- 
 vent, and unable to pay the sum of money last mentioned, 
 or any part thereof; by reason whereof the defendant be- 
 came liable to pay to the plaintiffs the sum ot money last 
 mentioned; and being so liable the defendant, in connde- 
 ration thereof, afterwards, to wit, on, &c. upon himself as- 
 sumed, and to the plaintiffs then and there faithfully pio- 
 itii.-ed to pay them the sum of money last mentioned, when 
 afterwards he should be thereunto requested. Neverthe- 
 less, &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. BcmnnoniS of the house of 
 ^idsdale 4" Beaumonts, the plainti'.lV. was, previous to the 
 f>th of April 1795, in the I'niled Males, and among other 
 places, in the city of Baltimore, where the defendant then 
 resided, and where the house of ILickttl 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 i 
 
 ander, who went to England with a vie\\ of establish- 
 ing connexions in the commercial line there \\ith the dif- 
 ferent manufacturers, and others. 
 
 "Baltimore, 6 April, 1795. 
 
 Messrs. Kiilsdale and Beaumont, Gentlemen Hy the 
 recommendation of Mr. Beaumont, I take the liberty to 
 address you by my son Jllcrandi.r, who visits England 
 with a view of establishing connexions in the commercial 
 line there with the different manufacturers, and other-. He 
 is concerned with Mr. John Hacket of this place, under 
 the firm of Ilackel and Grant. For their plan, I refer to 
 themselves; have, therefore, only to add, that I \M 
 rantec their engagements, should you think it necessary,
 
 OF MARYLAND. 
 
 any transaction they may have with your house. lam, 1807. 
 
 Gntut 
 
 Danl. Grant," 
 
 $* 
 
 Alexander Grant, w-as one of the house of Jfocket and 
 Grant: and he arrived in England some time before the^ 
 SOth of July in the said year, and delivered the letter to. 
 the plaintiff's, who, by the directions of .#. Grant, after his. 
 arrival in England, and v>hile there, shipped on the SOth, 
 July in said year, to the house of //. & G. goods to tha 
 amount of .1560 10 sterling. Afterwards, and some 
 time in the fall of the said year, A. Grant returned to 
 Jialtimore. and in consequence of orders sent by H. and 
 G. ami before Jl. Grant weot a second time to England, 
 the plaintiffs shipped goods to H. and G. to the amount of 
 1103 7 sterling, to wit, on the 18th of February 1796; 
 and also that . 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 plaintiff's, by the 
 directions of //. and G. and while A. Grant was iu Eng- 
 land, shipped to H. and G. other goods to the amount of 
 .689 9 8 sterling; and that the account which they pro- 
 duced contains a correct statement of the mercantile trans- 
 actions between the plaintiffs and H, & G. and that the ba- 
 lance there stated., of 707 7 2, was justly due to 
 plaintiffs from h. and G. who on the SOth of April 1 79* 
 acknowledged the account to be correct, and signed 
 same. It was further proved, that //. & G. are insolvent. 
 No evidence was given that the plaintiff's returned any an- 
 swer to the defendant's letter, or that any other cor- 
 respondence took place between the defendant and 
 the plaintiff's, at any time before the SOth of April 1798. 
 The plaintiffs further proved, that immediately after hav- 
 ing 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 plaintiff's 
 further proved, that after various applications to //. and 
 G. and to the defendant, they instituted a suit on the 6th 
 of March 1799, in the general court for the western shore,
 
 190 IN TIIE COURT OP APPEALS 
 
 18 against //. and 6". and at October term 1800, obtained 
 
 judgment aain>t them, and afterwards is-ued an execution 
 -t them; from which execution they were dis>ch 
 
 bv an order of the chancellor, under an insolvent law i 
 
 
 
 ed 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 Ifacket and Grant, and that the plaintiffs 
 vere 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 .-hipped upon 
 the credit of the letter; and that the. guarantee \\as to con- 
 tinue until countermanded by the defendant: that t 
 were shipped upon the united credit of Iluckct and 
 and the defendant. 
 
 The defendant excepted to the opinion of the court, and 
 the verdict and judgment being for the plaintiffs, the de- 
 fendant appealed to this court. 
 
 The cause was argued at June term 18C6, before TILGH* 
 
 , Ik . HA NAN, NICHOLSON, and GANTT, J. 
 
 Martin, for the Appellant, contended. 1. That the let- 
 wrote by the appellant to the appellees was not an ab- 
 
 *ute guarantee. 2. That if it was, it did not extend be-, 
 yond the. first shipment after the receipt of the letter. 3. 
 That the (illiquid and probuta\\\i\ not ai'iee. Il<- referred, 
 'iie fifxt jjt-iuf, to lii'lclicr vs. Andrews, 1 Sa/k. -23. 
 Marriott vs. Litter, 2 l!'i/.i. Ml. Joncn vs. Cooper, 1 
 Cmi-ji. -:.;r. Matson vs. Wharam, 2 T. 1!. 80. On the 
 third point, he insisted that the several counts in the de- 
 claration were defective; that the first count was similar to 
 that in JJufc/itr m. Jlmlnws, and Marriott vs. L\ster t 
 where the jadgt ere arrested. That in the xecond 
 
 count stated a pn.n.i-e, in consideration of having vAd 
 to //. and ('. and the e\idetue va^., that the promise* 
 was made bffore the -..lods were sold. That in the third 
 fount, there was no averment that //. and G. did not pa jr. 
 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 \i\\-.\\ .iin . \\ liieh should have 
 been &et out according to its date, and iu the wuids
 
 OF MARYLAND. 191 
 
 of: and that the facts, as they appeared in evidence, should 1 807. 
 
 be stated, as also ought the continuance of the guarantee. 
 
 He referred to E*p. Dig. 140, and 2 Went. Plead. 555. 
 
 That there was no averment in the declaration that Rids- 
 
 dale. and Beaumont, to whom the letter was addressed, 
 
 and the plaintiffs, were the same persons. 
 
 Harper, for the Appellees, admitted that some of the ob- 
 jections 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 evi- 
 dence supported any one good count, it was sufficient. 
 That the second count was a good one, to which the evi- 
 dence would apply. He also contended that the letter 
 \vas 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 
 \vas 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. . 
 
 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. 
 
 DE SOBRY, Ex'r. of TERRIER DEL.AISTRE, vs. TERRIER DE DECEMBER/ 
 LAISTRE. *"""** ^ 
 
 ERROR to th* General Court. The defendant in error, p ar0 ) evidence 
 Lewis Augustine Terrier de Laislre, brought an action of fife""^^^^""^ 
 
 which willi are 
 made and proved in France 
 
 A eoiiy_'it' :> wil! < x cut. ,! in Pkila'lelfiftia and transmitted to the Island of Martinique by the testa- 
 tor, certifi tl by ni'tirv public o(' tint Is and, and i-'>tir.'in:d und<T a coinnmiion issue. I to lake tej- 
 timoin, is suHii i ntly authenticated by having the certifi cate of th.e chief colonial officer as to the 
 vn:\ture of tin- notary public; niicl \\liith, with tlif lestlmcmy of the testamentary executor, returned 
 under the commission, i> s:i!licicntly proved, and in*) be read in evidence as the will of the deceased. 
 
 A to tho mattU'.-r of striking OQmmiuioBen and issuing: com;ai>ious to a foreign couuti v to take 
 antimony
 
 192 CAM-.- IN I UK l.nl UT OF Al'i'K \LS 
 
 1807. insit against Bcnjain'm tie A 
 
 Terrier dc iMislrc, (now plaintiff in error.) The declara- 
 tion contained four counts: 'Yh? first for .4518 17 7 cur- 
 rent money, for sundry matters, proprrlv chargeable in 
 an account. The second for money had and rn 
 The third for money laid out, expended and paid: and the 
 fourth for monev lent and delivered. '''he drt'i-ndant 
 pleaded non axsumjmt and plcne adminislraiit; to whicii 
 the general issues were joined. 
 
 Vroof.>fih 'ider eom.Tii*i'>nt iKnnt ta take tetti. 
 
 B)onv. inH ' 
 
 Jt .w '".r 'h-' v r :rt ill a f .rvir i ci'i'itrv >t le^Uy authenticated, nd how fir the 
 
 <., '! wholf prwvMilinijt. Vc. 
 
 '! nil of n - nirt of the flate, ii a u ' : 
 
 i u-t it ptirp TH o < rtit'v 
 
 l r ; hut if mmt be proved by testimony 
 tttitry 
 
 tame strict- 
 . 
 
 nr\ irr !o 1.- 10 di'irt nn h i' i 
 
 pr"i>-r > i'I.Mi< of inch la * - i 11,111 1 judge of thfir applicability loihi/qu.' t>un 
 
 ' 
 
 if witnM pCfWMltH lo h- road in evi-l-nf- to impeach hit frtvlit at to whit he hail 
 worn n it' of the I 
 
 but n 
 
 If a 0-inirn.t it in w uin? .t \kill il-!f how wh-rr it i to lx- riiv nt^il; but if it doei not atpear on 
 
 . 1C it 
 
 r.rd in a pirticuUr countrr, it n. 
 pur- 
 
 t liberty to ff> into evidence to pnive tliu intciiti'in of the 
 Mriir* .<\ to 1 1. ) 
 
 i a f.n-i^ii "inmtrv i-miry, and no ac 
 
 i. 
 
 IT it. T hit c'a'nn 
 
 . .1 in .1 in mu'-r dif- 
 I 
 
 Any cn-diinr rnnv tu'-an f\ -cutor fir a furn.i. prnvidt-d Ii" tlniw* hiniwll' to h>- a cix-di'nr unili r t!i- 
 bm of the country where 1 min in tl.i (ran K < 
 
 e\pfntor, he it aiiiwv i; nnd if th'-re w any Urp!m, il it to (fo i ( the 
 
 "etii.iii. to tx- ilistrih'itfd nre-irdnn; to the l:i\vi <if the roiin'ry wlii-ru -h- '"l itor u 
 
 IVrtonnl |imp-rt\- r ih.- fttator ii doinicil at tbc time ol" hil 
 
 4rtli, ihi |i i'.utcd arrnr'tin; to th'' l:nvt of th it country 
 
 \Vtr. Miii nate b uutwrrnliiu lor drbu, i> antwerable to all crc.litoii alike 
 
 lie !> ..r ili. 
 
 tl th.- law* of thit iftn trivr a pn-f.-reiicr to its eitizrm in the payment of the dcbu of a di CI-M-M!, 
 
 T prt farnia it accuunultlc to '-he t. ttauienUry executor only Tor the urplu rvmaining 
 
 anrr,,,y-,r 
 
 If an h^ir |. . 'i''ir, hai nol 
 
 Wllh thee-l:, , liildi-f 
 
 ;tr on a CUM < / ramt 
 
 
 
 It it :i i,-. -I,, r . -i*d- in a Ib- 
 
 r^ipli i i /<; a.t i wtut n 1 ." 
 
 Cint i. .i^it 
 
 mf'irmablr i . 
 
 > of a contract itii to be .-\ >'- by 
 
 ntnmon rnnirni artO|it },< ln* of ih n C..IMI'' 
 
 / 'lonii More i. i m, u> h * Contract, tboti 
 
 i . . . , , Frrj'U , tint a ci-h''ir wit'i 
 
 tory, who wako a rr > tuch 
 
 jury may tiud due on a contract in.idu iit 
 ^ccordinr ' ' ' nnee 
 
 ir diet in a foreiffn country, the 
 
 
 >e prriiial e^tateof a tet i iiion amon^ hwco- 
 
 I id a 
 
 ii erc- 
 
 'i ir 
 
 d unU-w tkry And tow Uw of / 
 
 t 
 
 
 "4 to )) mititry wi'h a vi'-w to the rxecti"n or |" rform in ' of it in * 
 
 ..inft twtb a> tu >t> C*KUCC aud thu rood.; ol i-nUrciuj; it, by Uic uwt ol
 
 OF MARYLAND. 
 
 1. In the course of the trial at October term 1804, the 1807. 
 defendant in the court below, otto red to read in evidence 
 the testimony returned, with a commission, which he ob- 
 tained at May term 1800, and which issued on the 22d of 
 July following, to the Island of Martinique. This testi- 
 mony 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 
 Jluguslin Terrier de Laistre, having produced, as a wit- 
 ness, Mr. Dominick Pechier, merchant, dwelling 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 Blanc and Ciccron, royal notaries public of 
 this island, the 14th of April 1797, we have administered 
 oath to the said testamentary executor, and have interro- 
 gated him in the following manner: Infer. Do you know 
 whether the said Mr. Michael Jiugustin 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? .fins. The said will bears date, Philadelphia 
 1st April, 1795, and the codicil thereto annexed, bears 
 date Philadelphia, the 29th of June, 17J6." "And an at- 
 tested copy of the said will, and codicil thereto annexed, of 
 the said Michttd Jlugustin 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, ex- 
 press the last will and testament of the said Michael Au~ 
 gvsfin Terrier de Laistre, to the best of your knowledge 
 and belief ? Declare all that you know, have heard, or be- 
 lieve, dns. I know the said paper to be the last will and 
 testament of the said Michael Jluguslin Terrier de Laislre* 
 Inter. Do you know whether the said Michael Jlugustin Ter- 
 rier de Laistre, made in his life-time any other codicils in 
 writing? Jlns. 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 Blanc and 
 voi. ii. 25
 
 CASES IN* TIIE COURT OF APPEALS 
 
 I80r. Ciceron, royal notaries of this island; and a supplement of 
 the same day and year, signed by Messrs. llonifaye and 
 Ciceron; the second, St. Pierre, Martinique, the 25th of 
 April of the same year, received by Messrs. Ciceton and 
 Jf'anter, royal notaries of thin island; and the third, St. 
 Pierre, Martinique, the 10th July 1797, nine days before 
 )>i> death, received by Messrs. Ciceron aud Therry, royal 
 notaries of this island. 
 
 - \ud a legally attested copy of these three codicils here- 
 to annexed, being produced and read to the said deponent, 
 ive interrogated him as follows: Inter. Are the papers 
 - town to you the last codicils, and do they express 
 the last intentions of the said Michael ftugustin Terrier lU 
 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 
 M'ith the commission, are the following certificates, to wit: 
 
 "Collated, Ciceron. 
 
 ''We, John Augustin JRegnaudier, commissioner of the 
 King, and procureur, (attorney,) holding for this purpose the 
 place in the absence of Mr. John Aman Aslory, commis- 
 sioner of the King, titular seuichal of St. Pierre, Martini- 
 que^ 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 iu 
 courts of justice as thereout, and to all that he signs ia 
 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 t Martinique^ the 20th July 1801. Regnaudier. 
 
 [L. S-3 Sealed at St. Pierre % Martinique the 20th Jul/ 
 1821. Jacquier." 
 
 The plaintiff objected to these copies being read in evi- 
 dence, because they were not legally proved and certified. 
 
 Martin, (Attorney General.) and Purciance, for the De- 
 fendant, stated, that by the laws of France there were two 
 modes of making will* one was a will entirely ia the 
 hand writing of the testator, which was called an Olo- 
 graph Hill) the other one written by a notary public, 
 iblv to the directions of the testator j 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
 
 OF MARYLAND. 495 
 
 ed a Solemn T fill. The will, offered in evidence wa8 1807. 
 an olograph will, executed in Philadelphia by the testa- *-^v->^ 
 tor, and by him transmitted to certain notaries public % 
 
 .... . ,. DetaUtrm 
 
 m 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 exe- 
 cutor named in the will. It was legally authenticat- 
 ed, according to the act of 1785, c/i. 46. The origi- 
 nal will could not be produced, having been lodged in the 
 office of a notary 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 wilt 
 must be proved in one of three ways 1. The original 
 must be produced, and the execution proved. 2. An aur 
 thenticated copy from an office of record, properly certi- 
 fied. 3. If an authenticated copy is not produced, then 
 proof that it is a true copy from the original, if the origU 
 jial is in the possession of a person or officer not authoris- 
 ed to record it. They cited Peace's Evid. 48, (notes.) 73, 
 (notes.) Jinon. 9 Mod. 66. Henri/ vs. Adey, 3 ast t 
 221. Moiaesvs. Thornton, 8 T. R. 303; and Stevenson 
 vs. A/ycrs, \Havr. $' Johns. 102. 
 
 CHASE, Ch. J. The court are of opinion, that the cer- 
 tificate of the colonial officer of the signature of the nota- 
 ry 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, io Paris, Mar- 
 liniqite&nd Hoitrdtuux, and the returns of those commis- 
 sions 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 1 803, the entry is 'commissions are order- 
 ed by consent, on the part of the defendant, io Paris, Marti- 
 nique and BourdeauX) on striking commissioners; if the C9m- 
 missions are not returned at the next term, it will then hjs 
 no cause ofcontinuace.^ | v Thedefendant'iconimisiiotterB
 
 1)6 CASKS IN Till: l.oriiT oi- AIM ! M .- 
 
 
 
 struck the 18th June 1803, (Saturday.) See their names 
 mentioned in a paper filed." On that paper, in the l.and- 
 w riling of tle attoriu-y m-iH-ral, (one of the attorney- I'm 
 the defendant,) after naming four, persons as coninn 
 ere to each place, is a-* follow >: "An order for tommi-- 
 to our commissioner*, unle.-- plaintili' strikes coinnn- 
 ers on Monday," (the 20th June.) There was no order 
 made in the docket or in the minutes of the tuurt. The 
 court met on Mondav ihe COth June for the pni[- 
 making some few entries. The jury had been di-.ii. 
 t>n Satuiday the 18th J-uue. The plaintiff', and his 
 sel, and the counsel of the defendant, left the court for 
 Jiallimorc on Saturday. The defendant remained, and on 
 Monday the 0th June, he obtained his commisrion> fiom 
 the clerk. Neither the plaintiff', nor his counsel, had any 
 notice of the names of the commissioners .-truck b\ the 
 defendant, nor of the order intended to be obtained for 
 the striking commissioners on the part of the plaintiff. 
 Defendant, after obtaining the cour.i.i- :it to 1'ml- 
 
 /injure, where interrogatories were prepared to be forward- 
 ed with the commissions. The interrogatories and com- 
 missions were taken to the plaintilTs counsel, and a pro- 
 position made to him to strike commissioners, it i 
 not approve of those persons to whom the comiu 
 had issued, so that new commissions might be ob- 
 tained. The plaintiff's counsel alleged that his cli- 
 ent had left JJalthnose for Elizabeth-Town in the state 
 of yew-Jersey; that he did not himself know ot 
 
 haracters, nor would he consent to any thin;:, but 
 would take all legal advantages. It was then pro; 
 
 ,:ted on the part of the defendant,) that the counsel 
 bhould write to the pVaintifl", and the defendant would 
 wait, and retain the commissions until he thnt;l<! 
 from the plaintiff; but this was declined by the plaintilV's 
 counsel, and the commie-ions were forwarded. 15ut on 
 the part of the plaintiff', it was stated, that the defendant 
 proposed to wait one post, which the plaintirt"s conn-el 
 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 comnn but it 
 
 appears to have been done in the hurry of business at the
 
 OF MARYLAND, 
 
 rising of the court. Time ought always to he given for 1807. 
 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 commis- 
 sioners being struck. \t should therefore be executed in. 
 a i"u -unable time. The commissions issued precipitately, 
 without sufficient time to the plaintiff to strike commis- 
 sioners; 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 or- 
 der, they would not have allowed more than five days for 
 striking commissioners. The defendant, it appears, of- 
 fered time "one post." Here, too, is a material fact irx 
 which the affidavits do not agree. The defendants attor- 
 ney's affidavit states, that no specific time was proposed, 
 but generally that the defendant would wait an answer 
 from the plaintiff; but the phintiff's attorney's affidavit 
 states that the time was limited to tl 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 the commis- 
 sions hud been considered by the court as having issued 
 irregularlj;, they might have been suppressed, and the de- 
 fendant 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 continu- 
 ance." 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 coun- 
 teracting them, by obtaining at that time new commis- 
 sions 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 causa until the next term. For 
 these reasons the court are of opinion, that the commis- 
 sions, and the testimony taken thereunder; ought to be 
 read to Uie jury.
 
 198 i ASKS IN THE COURT OF 
 
 'ims. T!ic plaintiff gave in 
 
 lence, that he is the cK '' Michael, the defen- 
 
 Mtor. He also n.id to the jury two original let 
 ;:<.'in hi father to liiu:, dated at Rimnlcarj; in /Voice, 
 and addrened to him at 7'i/nV, in France, one dated the 
 CUt (if May I7'.'.\ wherein the testator acknow led^cd that 
 lie had received a sum of money for the plaintiff, and as he 
 could not invest it, he proposed to take the MI in of 1 
 livres himself, at 5 p. c. interest; and (he other kit- r, 
 dated the 1st of AiiuiM I TO.", IckBOwtedging thftf he had 
 
 >cd for the plaintiff 28,000 livres from Mrs. 
 He al-o oftiml in evidence, that sometime inthevar 
 
 . the testator, and the plaintiff, came to J'/ii/adc-'j //rr, 
 v. la-re or near to which the testator resided till the Glh of 
 A 1 1 it ir'.'f-; and that the plaintiH*. from the time of his ar- 
 rival at Phifadetpliia. until the [-resent time, hath a! u sirs re- 
 sided .vithin Uie !'. >'. Hi- aUo read in evidence a memoran- 
 dum, in the hand-wiiting of the testator, made in a memo- 
 randum book kept liv him, \\hich meooranda0 bears date. 
 on the 30th of September 1703, and is as follow?, \\i. 
 "The four servants given to my eldest son by his marriage 
 contract, to wit: 
 
 Jirnno, a mulatto, hair-dre.-^er, estimated at 4.>(:0 
 
 rfntoine, my domestic itair-drc^ser, 
 
 I.iv. 7oOO 
 
 Doth of whom are dead. 
 a cook sold, 2850 
 
 , a washer-woman, (;<o 
 
 - 4850 
 
 N. P. He re'irnrd to mr the nbove mpntionrd foi .< 
 
 i.artnie from M(irlinitjiir; lor wh'uh !-aiil 
 '!,i- sum of -40. UK) livres, which he 
 .1 to !>o drlixr-ird t-i nn- at Jioitrdtovx, before his de- 
 parture for Xorth .-fiiifrint, my estate is responsible to 
 him.'' He aUo i-ad in evidence a letter fn;m the ie>tator 
 td him, bfarini; date at Ph iltnlcljihin. on the 22d ot 
 
 . :nid addre>sed to him at Trnilw, \vt.. 4k l have not 
 
 .-n able to employ my-elf in making use of the bill 
 
 of exchange of 170 dollars, (3440 livrc=,) en //flfre, but
 
 OF MARYLAND; 
 
 JT will attend to it as soon as my health permits me to go 1807. 
 out." Also another letter from the testator to him, bear- 
 ing 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 Claudcl yjur bill of 
 exchange, drawn by Moist/, for 170 dollars, (3440 livres,) 
 that he might receive payment and pass it to the credit of 1 
 my account." He also gave in evidence, that all the afore- 1 
 mentioned letters, and the memorandum, are in the hand- 
 \vriting 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 were of- 
 fered 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 se- 
 veral sums of livres mentioned in the said letters and me- 
 morandum book, were of the value of, and amounted in 
 the whole to the sum of S9628 63 current money of the 
 United Stales; and that the usual and legal interest of mo- 
 ney in France, and her colonies, was at the times afore- 
 said 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 in to his hands 
 money belonging to the estate of the deceased to the amount 
 of 813,092 68 current money of the U. S. out of which, 
 he claimed an allowance for disbursements and 'commissi- 
 ons, to the amount of S1200 07 like money, leaving in 
 his hands, subject to the legal claims against the estate of 
 the deceased, the sum of SI 1,892 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 
 times and places therein respectively stated, viz. "I Mi- 
 chad j&tigtutw Terrier de Laistre, aged 61 years, general- 
 ly 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 writ- 
 ten, 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 ami codicils by me at any time
 
 (' ^S1 3 INI HI i OF 
 
 lore made, ami divlarin:; thU to h.- al-me -;,t,i I and 
 'id. v The be: .;,-,,. 
 
 . are tin 1 following: 7th. k 'I ^iveand !)fi|uciit!i unto my 
 natural M>n ('firry, tion- about M-. , of a^c, ami 
 
 : from his clnlrlliootl at AY. /'icrrc, in .l;'//7/myw, by 
 ./I/// />///< Di'-'f/t^i/'i/, t!n> sum of ///>(/ thcutxdiiit livres, colo- 
 nial money, payable on the partition of my relate. irilc-, it 
 should please better my i imit him a- co-heir, con- 
 
 formably to the tenor of the acts parsed bv t '.c nation. 
 sembly in f,ivo-ir of illegitimate cliildren; tlu-n ami in-inli 
 I \\ill and direct tliat he have hi.s jiropordonable 
 share, according to the ri^ht vested in him \)\ \i\\\\ if my 
 ilit not tht.iM*. rather that the said sum of 50,000 
 >ho!ild bo paid him out of the surplu- of inv estate, 
 af'.'i ]'-i\:inin of (If')t-i, &c. Enjoining liim \\-\n-. ,-..\.T in 
 to bi-ar the name of Chen/ Terrier.' 11 lOfh. "I 
 to and appoint S/nlhony J'irtx. my a.^cnt at 
 i iini>{iir, executor of this my la-t uill and 
 
 . "And in case of the death or ab.-encc of 
 
 .id Anthony JY/w, I constitute and appoint, in his 
 place, my friend Mr. ('rossous, merchant <f Mttrfi tuque, 
 - him to accept this charge, with the same indemnifi- 
 cation as aforesaid, and thereby ^ive me this last maik of 
 friendship." llth. "As to all the rest and residue of my 
 estate, \viiPtlnv real or personal, debts due me, &c. which 
 I MI:IV leave in . J.-ii' ii'-/i, I constitute and appoint Messrs. 
 
 :n, father and son, executors thereof, to admini- 
 on that property only of w'n'u ; i I m iv di - d in 
 
 .7///' i-//v/, conformably to my intentions exorc-sed in thiii 
 i:iv last uill and testament, of which I have left them an 
 authenticated copy." 12th. "I hereby name and con-ti- 
 tute my eldest son, Lewis *Quz*i.illn ttl< 
 
 r., as an heir in my succession; and I ! and 
 
 direct, that after my decease, a true and faithful invenfo- 
 ry be made of all my property, out of the amount of which 
 pro;i"r!y, all the bequests generally i'\pre-..-d in the pre- 
 sent te-tamt:nt shall be faithfully dischar^.-d; and in case 
 
 >n>/ Mark Terrier <lc Lmslrr, younger brother of my 
 said eldest son, should not please to divide with him tho 
 
 of their mother, conformably to the schedule I have 
 
 :ed to this my la-<t will and testament, in which 
 dule his moiety is clearly di'-i^n.u.- I. 
 rather to recur to the general inventory which will be made
 
 OF MARYLAND. 01 
 
 after my decease, then and in such case T will, and most 1807. 
 expressly direct, that the sum of 40,000 livres, reserved 
 from the portion brought by me in my marriage contract, 
 aji;l also the sum of 2,000 livivs, which 1 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, Jlugustin Paid Jlnule, son of my eldest son, 
 who shall possess and enjoy the same on the surety of his 
 judicial oath, until his said son t/htgustfn Paul Ei.-dlf at- 
 tain the age of 21 years, or be married; and in case this re- 
 serve 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 es- 
 tate, after all my debts, and the bequests herein contain- 
 ed, shall be discharged. Authorising, moreover, by these 
 presents, my eldest son to renounce my succession, and 
 reiai;! the portion brought by him in this marriage contract, 
 with. tut returning any tiling to the general stock; he also 
 claim:;):;- from my estate all that I lawfully owe him, whe- 
 ther for the different sums which, on my last voyage, he 
 caused to be paid me in Ffimc.p. by Madame Jlitbiri^ or, for 
 the four domesticks f gave him by the said contract, and 
 which, before his departure from Martinique.* he delivered 
 a.v.mm and risk t;> Mr, l"iau my attorney. 13th. 
 '1 c/wstitute and appoint, as heir of my succession, my 
 . -st 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 [ have subjoined to this' my last will ond testa- 
 ment, in which his potion of the maternal estate is dis- 
 tinctly marked out, or chooses rather to recur to the gene- 
 ral inventory to be made after my decease, out of which 
 his portion will be ascertained by law. I also will and di- 
 rect, that the share accruing to him from my estate, shall 
 .if immovable property, and my will and mean- 
 ing is, that the said immoveable property be not aliened by 
 him under any pretext whatever, in order that it may de- 
 scend to his issue, and in default of such issue, be equal- 
 ly divided amoiv; the children of his elder brother; this 
 disposition not being regarded as an entail, but as a pru- 
 dential and safe m,;de of securing some part of my estate 
 VOL. ii. 26
 
 203 - IN 'HIE cor RT or 
 
 ISO?". in in\ - crrnmlch'ddren." 14th. "As th 
 
 *v~> mu'iratfd bv the republic (in (lie - 
 
 i 
 
 - rain the testator from the f: ! bv \\ill of i 
 
 DeLaixre 
 
 than one sixth part oi his possessions, and allot the 
 
 the rer. - natural ' n is 
 
 im: r !!!< to a- ivlain at thi< jiinctutv ti.e :M:I >unt 
 
 (.1" i 't\, I \-\\\ an:l direct, thai in c a-<- niv two 
 
 ^ii'nnav >.:,-;, or any one ol '.'I- . M adhere 
 
 to the ] M -r of (lie law. in <>;;, i-iii-n to the d:- 
 
 sitions contained in this inr last will and te^ament, then 
 and in such case, that my natural son C/tcri;, already a 
 parli'-ular legatee bv the-^e pre- I my lour natural 
 
 daughters called . -:d Mar- 
 
 guerite, also legatees iid. 1)0 all five called in as 
 
 co-heirs in my Micce-non, each re.-|>ei-ii\clv renouncing f' 
 liis or her respective le'_ r :icv. nm\ drauin^ from my estate 
 h proportionable >hare a> the lav. - ii*' 
 
 the one sixth of my property, of whrch I may fi 
 pose, I will and direct tha 1 'tied by 
 
 the inventory, the amount of the. berpie't made to 
 tive Scplria, be deducted (hcrefrmn, and p-iid her in full, 
 ivith all possible dispatch, wltich beqiK^st I hereby confirm 
 and ratify. And I also will and direct, that tiie sun 
 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 aft is proportionable 
 to the amount of his or her respective Iei;n -<:cl* 
 
 are my last desires clearly expressed in the pre-mt d 
 roent, written with my own hand, and which I fully con- 
 firm and ratify, after tuning attentively peru-rd and repc- 
 rttsed the same. Done and signed by 1ri:i'.ic:ie. and one 
 copy to be deposited with Me -sis. J)r Su/:. lather and on, 
 appointed bv these piw-i'n 
 
 tratiun of that alone of whiih I may ilie possessed i:. 
 ca: 1 transmitted to Jl/arftnt ih-rt-loi' 
 
 vith a notary; and a third endo-i-d in my port folio, all 
 three copies brintr sealed with three seals, bearing the 
 slamp of m\ '-n in the mai^in. at 
 
 PhUftilrf/ihiu, in / } ni^i'rtini(i, one of th-- Ird 
 
 Stalts of .97iirri((i, th - iii>t lay of April, in the year of 
 
 our Lord ir ; ." \ roking the legacy to 51op/ 
 
 confirming and ratifying all other part- of hi-, \\ill. Signed 
 JWlhof June 179G. "Terrier de Laid
 
 OF MARYLAND. gQ3 
 
 will and testament of Michael Augustin Terrier 1807. 
 (lc, Luhtre, done in the presence of Messrs. Ciccron $' Le 
 Jllanc, notaries of M. Pierre, in the Island of Martinique. 
 On this 14th day of Apiil 1797, about 11 o'clock in the 
 jnorning, we tlie undersigned notaries attended Arichaet 
 rfugustin Terrier tie Luhh P, chevalier, &c. resident in the 
 city of St. Pierre, &.C. aged 64 years, la'.vful son of, &c. 
 who being confined to his bed, infirm of body, but of .sound 
 and disposing mind, as it hath appeared to us by his seve- 
 ral 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 lie dic- 
 tated word for word in the following manner:" The 
 bequests material to be mentioned ure the following: 
 8th. "The said tes'ator gives and bequeaths unto his 
 natural son Chert, about 15 years of age, and raised from, 
 his infancy in this island by Madame Duquesnay, the sum 
 of 50,COO livres colonial money, to be appropriated to his 
 subsistence and education; begging his executor hereinaf- 
 ter named to transmit the funds requisite for the payment 
 of (lie said sum to Mr. Benjamin De Sobru, merchant of 
 JJa'tinwrc, who has had the goodness to act the part of a 
 father towards him during the absence of the testator; en- 
 treating him therefore io 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 cast-; enjoining moreover his said natural 
 son to continue through life to bear the name of Cheri 
 Terrier. The said testator also gives and bequeaths 
 to the said Cheri his wardrobe, rings, jewels and pri- 
 vate fire arms, which shall be found belonging to him 
 after 'his deceasi; 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." 
 llth. "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 conti- 
 nent, [duns le (lit continent,^ if any there be* Hereby
 
 01 ( iSB - IN 'I'm: COU1 r <>r ATI EALS 
 
 1807. fullv I'M *ell to recover whatever- waj 
 
 to liiin, i, without be- 
 
 ,1 .uTo'iiiiable l.'i- tin- s.:iti 
 \,-:." I '. Tli.- uui - itoi i tn< - iirnl in>;. 
 iieirs in . 
 
 IHiti>e, as well as liii volition', called .//<///' 'J'tr- 
 
 rier tic Luistrr; hi-reliv constituting and :ij i: . nt 
 
 his uni\iT-.il !< equal shairs i;i In- ,<--i- 
 
 t.;i; strenmiu>!y recomme n!;n- to tl.i-m t.p | . 
 n v between themselves, and respect fur tl,e jn 
 cil, wliirh the said testator wills and directs s-lumhl betnl- 
 
 cuted in all aiul eveiy part. And his v. ill 
 
 -. that the part and portion of tint 1 
 . uho shall first die without mvc, ^hull ien,;.iii to (he 
 survivor." 15th. "The said testator hei iluies 
 
 and appoints, as his executor, Dominick 
 of the city of St. l'ierre< of v.hoin lie 
 this j^oud office. And in consideration that t: 
 
 nitoi i> i .\ aitcndetl by some. tnn.L: 1 
 deraiiL'einent. lie iie^s him to accept the bt 'di he 
 now inaki;-, him. of tin- sum of 1.1,200 livn - i] mo- 
 ney, \\hit !. lie may take before tin.- 
 
 n tn tlu heirs; the -;ii<i ti-;;i!n: . 
 ing himself of all his estate, in order to invest him v. ith 
 
 me. from the day of his den is,-, conformably t< 
 lorn.'' 16th. "Tie said testator revokes all other Mills 
 and codicils) by him heretofore made, drchtiiir. 
 
 and valid, as uei! a- his \\ill and 
 11 with his own hand, of the 1st c.f Aj:iil in 1 ."), fully 
 g MM! confirming tl.e sai, 
 
 i ABtl thing*, therein contained^ < 
 UM changes madd . .iatcd in the j.K-mt c< 
 
 ami the said testator also wills and dircits, tl.. 
 
 '.ient shall be joined to the | dicil, h> 
 
 "his hai'.i!^ \\hri:e\ei he s'.ull please ti 
 hich has been remilariv maiked ne variilur, by 
 the above mentioned notaries." kt l)one," &c. 
 
 Signed, Ten i-rd> f.aiitre. 
 
 Cicrnm t>' J<c J>I<- 
 Col: 
 
 Other codicils of the Mth Apiil 1707. 25\\, 
 inc. :rul 10'h July 1797, making -on.e ti iliij. allei. 
 tnd coufirminj; other wills and codicils nut alteud, \c.
 
 OF MARYLAND. 205 
 
 The defendant also gave in evidence, that the executor 1F.07. 
 testa therein named, that is to say, Dotitiniyiie ^^ 
 
 J'Mcf;i<-i\ residing in the bland of JUtirtinii>iic, did take ^Lut* 
 upon i.iiaselu, after the death of the testator, the burthen 
 of the execution of the wills and codicils, according to the, 
 laws ul the Fi'f.ncfi go\ci m.'icnt, in force and etlecl in that 
 island: and that he did on the 24th of July 1707, write to 
 the defendant a letter, and stud the same with a copy ufa, 
 certain part of the will or codicil, dated the 14th of April 
 . to enable the defendant to cany into execution that 
 partct the will in which the ddii.dant was interested. 
 'I !.e defendant also gave in evidence, that Pcachier did, on. 
 the 4th of January arid the Ijth of December 1798, write 
 letters to the defendant, and send the same, of which the 
 following are true translations: That of the 4th of Janu- 
 ary 1T98, is as follows: '! am glad to see by your's that 
 you hud duly recehed my lener of the 24th of July, which 
 informed you of the death of Mr. Terrier de Laintre, (of 
 whom 1 was the executor.) and forwarded you a copy of 
 the articles of his last will and codicils, which concern 
 vou, and his son Chcry, whom he recommends to your good 
 tares. 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, 
 wi;h 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 Luistre. have taken the quali- 
 ty of conditional heirs, and have lately applied for a delay 
 of six n.onlhs, which has been granted to them. After its 
 expiration they will probably ask for more time, which 
 will also Le granted; and this will go on until the return 
 of peace. Until they take a determination on the subject, 
 1 cannot dispose of auy thing. All the furniture and ef- 
 fects which are coming- to young Ckcri/, have been inven- 
 toried and shut up in a cupboard. Whatever may hap- 
 pen, 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. Ir.w grants them the option to 
 have the community of their nsother continued to the 
 death of tlieir lather, bucnuie he had not made a legal in-
 
 00 '"COURT OF A I 1 ; 
 
 , to know \\hi< h is more advantageoui 
 r tii have the cnmmiinifv continuctl, ami to 
 recei\e their leiMtir.i, or to lake tlie qualify of heirs. This 
 i f the bii-ir.r>. I am iv>in<; on with, 
 the liquidations in collecting ihe debts, :i!nl pa\in:; \\iia; 
 
 The letter of the !.' ' 
 i;i\ .Mitcrv, on act .Jimt of llie war, had nut 
 completed: a:id it .V ', that *(': 
 
 %er, (one of whom, -litre the _;. 
 
 brother, v, ho i- on yoor iu- 
 
 tinent, and \\\\ 
 
 1o administer their projirrtit - 
 
 . : 1 th<.- iin- t;i Lninv ho\v !o;ii; it will rc- 
 
 ij'.ire for the liquidation; I *av, that actnatcd bv ;i!i 
 
 MS, I have remirrrd my an . who 
 
 from that time, administer their proper; i 
 I have already informed you, tha. 
 \ecution of tiie \;iii. so far 
 and that the S': on. Mr. /-' 
 
 decree of the court, been nomina in to tlse 
 
 young Chfry, and defends his intcre.-.t in that Mialt- 
 f. . It is necessary to -o on wi:h the suit, ni:d 
 for its conclusion, in older to abide by the j 
 lie also ;avc in evidence the proceedings in the o: : 
 court of Jiuftimore county, upon the exhibition and proof 
 of that part of the codicils and v. i!!> (.f I'M 
 the 8th and llth clauses in the \viil or codicil of tin- 1 Jth 
 of 'April 1797* is herein before mentioned, \virii a direc- 
 tion thereto annexed by the te*tato;-. 
 
 ir;r:U some of his ellects were, to tie- 
 liver the same up on notice of his death, to the tlet-.-n-l:nf. 
 and proof thereto, and to the extract of hi., will ami. 
 of the harul-writing of tiie t - 
 Mary \' 
 
 . slid \\hidi lelt. y the de- 
 
 vt- in i-xiilei.cf to th" j'lrv. lie further 
 i eudeme, ihat the te>taf(/r was a niit'ne of the 
 in ol /'icnrt, and fur <. 
 
 TII of t'-.e !-:.; mi of Mi', . ,::ni resident of 
 
 that I>I,-.i.tl, which \- . v. hole time that he there, 
 
 d, until his tKath, ami at the time of his deaih. sub- 
 
 d by, ihe -a me las as the olln 
 Ui.ds of the ll'itt Indie* dependant on the -o\ciuiucnt of
 
 OF MARYLAND. 20? 
 
 ThaHhe testator came to the U. .?. on the Gtlx 1807. 
 of November IT'.*"!, and li-fl (ho r . .'*'. to return to the Is- 
 1 ind (if M(irHni({ur^ on the Oth of September 1700, and 
 that having arrived at that Island, he departed this life, at 
 1h.it place, on tlie 19th of July 1797. That the sum of 
 12, SCO livres, money of the Islands, which constitutes the 
 first charge in the plaintiff's account, is the estimated va- 
 lue of four slaves, which were delivered by the testator to 
 his =on, the plaintiff, as a part of his marriage poriion, and 
 which were, by the plaintiff, again returned to the testator, 
 some time about the year 1792. That the plaintiff was not 
 entitled, bv \\\c French laws regulating this education, tochsim. 
 cither that sum, or interest thereon, or any part thereof, 
 as the creditor of his father, or of his father's estate, unless 
 lie 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 re- 
 ceived 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 tes- 
 tator, and by him received in France in assignats, and not 
 in specie, at the nominal value of assignats, and that as- 
 signats. at the time of this loan, were only of value com- 
 pared 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 17P3, or thereabout, by Madame 
 Jiitbln Bhimpre; and the sum of 28,000 iivres by the same 
 lady to the testator, on or about the 1st of August 1793; 
 and that the plaintiff did afterwards repay the same ad- 
 vances to her in assignats, at their nominal value, and not 
 in specie. That according to the French laws operating 
 upon and regulating the raid loans, the plaintiff is not en- 
 titled 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 3,4 it) livres, the defendant gave 
 in evidence, that one Moisy, being indebted to the plain- 
 tiff in the sum of SI TO, drew a bill in favour of the plain- 
 tiff upon his, the drawer's correspondent, in
 
 IX TITS COTTRT OK \!> 
 
 
 
 dollar, a: -.! lv 
 
 is delivered to th'> tc-tafo:- (i 'lilted 
 
 lo hi* correspondent in :' >vo from the : 
 
 draun the a-.nonnt thereof 
 
 s-i^nat-, and that for want of proo:' ,\- (he 
 
 pi aim iff, (hat I. 
 and ! . and that 
 
 IVAS ()f 
 
 vernrivn 1 airaiii-? emigrant*. ' 
 
 tator never . i 1 that the 
 
 .i- i-occivcd no part tli.-r,vif' f Int thai t!u bill }.-t re- 
 mains unpaid in the hand-* of tin* |);-i <on to \vli!:ii i 
 
 lie fin (her gave in c\ili-in-i> 
 l)\- him in (lie nrphatH ctup-t of , 
 \vhiMviv it apncais that \w charges himself with t! 
 of S' current n I of (! )( > 
 
 the tc.-tafnr, and rrodr like 
 
 . 
 
 which he is allowd, IcnvinT; the s-uu if SI l.s;)i (>| |ii; e 
 : the hands of the- ilefetldiftlt, and which he re- 
 
 tain-, hi'in^; left him !>y th- ilcr-.-i-:--!'^ will. 'i",;it the 
 sum-; ') h" r'la- if in (he account, pro- 
 
 1 from the sales of <i : '-. wari-- 
 
 . which wore in the V. S. \\-\\. 
 and from certain dehfs wliich remained duo in the I'. 
 
 .and ho : in le 
 
 1 i'con- 
 
 mlae which the testator had a - in (he 
 
 tod <lu % rofro:n to return 
 
 and which (he d ! hy him to r:> 
 
 v.-oro afterward- paid '< or ^-::!i-d wi'h tin- 
 Bclf, after he went to .1.' . and tin-;. ! not 
 
 the hands of Ih- dcfirnla:i'. :it to in- 
 
 l.-lV.nd.in; offerid in cvi lencc, a 
 
 the tici . u-ino; 
 . on (ho 2()!h of March 1 . dc- 
 
 fenda'nt also off d'erort n'mi tanceg 
 
 and ftitxU M > inirte<l to (! .\!i'ie in <hc* f. & 
 
 eluding th-- ; y Jhith^ the 
 
 ;ile in ; 
 - expend iturua nhile lliere, and the sum he carried
 
 OF MARYLAND. 200 
 
 from hence when he left the U. S. and to show and prove 1807. 
 
 the same, offered in evidence certain extracts from the * - v- ' 
 
 memorandum book produced by the plaintiff, in the hand- . 
 
 writing of the testator, vi/.: 
 
 "My general account in the continent Dr. 
 
 1795. 
 
 June 25. Balance of 4 Bills of Exchange for 
 
 my adventure, g3,198 
 
 1796. 
 June 18. To Duvall MonvWe^ received for his 
 
 account by a bill of Mrs. Au- 
 
 guart, his sister, 792 
 
 July 23. To Viaiti net amount remitted by 
 
 him as appears, Sic. 4,586 
 
 1795. Cr. 
 
 Dec. 31. By 13 months expenses, as appears 
 
 by the particulars. gl,225 
 
 1796. 
 Sep. 30. By 9 months do. do. 936 
 
 For 22 mbnfhs expenses, j&2, 161 
 
 By remittance to Si. 
 
 Claire, 800 
 
 By do. to Ollie, 2,400 
 
 By do. to Eyma, 800 
 
 By do. to Dancemont, 124 T *J^. 
 
 4,124 ?\ 
 
 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 ^i 53 T 3 -^. 
 
 Carried with me in specie 20 
 
 73 38 
 
 TOL. II.' 27
 
 $10 C V>ES IN THE COURT OP APPEALS 
 
 1807. Concluded at Baltimore^ this 5th Septem. 17%, until 
 
 the t-nd oTSeptanber.'' 
 
 *' 1C defendant also offered evidence to prove, that there 
 vas a ilejl due from the plaintiff to the testator, at tlie 
 time of his death, amounting to the sum of 1 1 1,.>J>7 
 13 sols and 4 lii-niers, money of the Island oi 
 which sum of money, at the time aome mentioned, wa of 
 the value of 813,519 G3 current money of Mitnjluiitl t 
 which ought to be deducted from and set olV ai;aini 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, Marc Anthony Terrier de. 
 Zais/rc, as heirs of the testator, the succession of the tes- 
 tator, and the papers relative thereto; and that the plain- 
 tilV, and his brother, have since had the same under 
 their management, and in their poo.->-i<m; and that 
 the plaintiff hath intermeddled with the estate, and 
 acted in respect thereof as heir; and also that the succes- 
 sion or estate of the testator is not insolvent. He also of- 
 fered evidence to prove, that the acknowledgment enter- 
 ed 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 ^donl ma suc- 
 cession doit lui tcnir (oufaire) complc," 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* re- 
 gulating the Island of Murliniquc, and there used and in 
 force, authorises and directs. He also gave in evidence, 
 that the devise to him is not expressed to be under any se- 
 cret trust. That to prove a devise to be a secret trust, 
 by the I-rcnch laws, the testimony of witnesses cannot be 
 admitted; but that the supposed secret tiustec is to an- 
 swer, upon oath, whether h has lent hi* name or not, di- 
 rectly or indirectly. That according to the Ffcnch lawg, 
 regulating this case, the plaintiff has no interest or rights 
 against the defendant, cither as a debtor or legatee of the 
 testator, or as debtor of the testa) or's estate, which he as 
 a creditor, or in any manner, can enforce, unless the plain- 
 tiff had first solemnly repudiated and given up his right ol" 
 inheritance to the succession, and had renounced all
 
 OP MARYLAND. 
 
 as heir to the succession; and that the term "succession," 1807. 
 in (lie 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 tha 
 respective commissions which issued in this cause; and 
 that the law is as stated in the respective commissions, by 
 the witnesses examined on the execution of those commis- 
 sions upon the legal interrogatories put to them on the exe- 
 cution of the commissions respectively; which interroga- 
 tories and answers thereto he offered in evidence. He 
 also offered evidence, that the plaintiff, soon after the deaths 
 of the testator, went to the Island of Martinique^ and waa 
 residing there about a year. That no insolvency of the sue* 
 cession of the testator can be proved or established^ so as 
 to admit suits to be supported upon the grounds of an in- 
 solvency, 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 thejudicial 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 ia -Fra/ice, for 
 debts contracted, in assignats, and otherwise, which wera 
 in his power to repay in assignats, which had become great-* 
 ty depreciated j that in order to pay off his debts aforesaid j 
 with the least sum possible, and thereby render his suc- 
 cession 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. 8. and endeavoured to have pro- 
 perty 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 an'l 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 testa- 
 tor received in property, or otherways, while in the U. f>\ 
 and that they were, expended in the support of
 
 CASKS IN THE COURT OF AFIT.AI - 
 
 180r. family while in the I'. A', and in remittances for jm \irent 
 (I liis debts. That asi;i;at was a "f paper mo- 
 
 nev, or paper airrrnc\. i--urd undei the authority of tlie 
 French ^o\ Tinmcnt. since flu- cominenreir.ent of the 1 
 revolution, at different times, and \\hirh, \\hen i- 
 were, or since being Usued became, of much less value 
 than gold or silver current coin, and t the value 
 
 of dollars with livres in specie, the dollar in ,-prrir is ecjual 
 to five UMTS ti'imicis and live sols; whereas the dollar in 
 specie has been, and is worth much more than the >;:me 
 number of livres tnurnois in assignats, according to the 
 different state of depreciation of assignats. The plaintiff 
 ihen, to prove (hat the French laws cannot aj-j Iv 
 operate upon this case, gave in evidence, that the defen- 
 dant 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 be- 
 longing to the estate of the deceased, was money I 
 by the deceased, in his life-time, in the C. X. am! ihai the 
 money, or goods and merchandise, from the sale of which 
 it arose, was withdrawn from the French dominions by llic 
 testator in his life- time, and lodged in the f*. A. for the 
 express purpose of evading the laws of France and Marti' 
 jiiqiTi and of disposing of them by his will to the preju- 
 dice of Hie 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 tl.e 
 orphans court of BaUtmon county, on which letters tes- 
 tainenturv were granted to him by that court. 'I he (bin- 
 tiff', to prove that the debt for which this action is brought 
 i-. an imeriam debt, and not subject in any manner to the 
 operation of the Fnnch law-p, gave in evidence, that the 
 two i-mi's nf 1-2,000 UMTS and 28.000 livres, ann-mitim: to 
 40,000 livres, received from the plaintiff' by the testator, 
 through Madame JJithin, in BourdeaUX t were obtained from 
 the plaintiff by the testator, under an expectation hold >nt 
 by the testator of his employing them beneficially in the 
 purchase and exportation of merchandise for the bun-fit of 
 tlv i liiintiff, and that the sum of ;\;r-. pit of 
 
 the 4<>.<;;0 livres, were actually invested in the pur- 
 chase of merchandise, by the testator in Franrr. on the 
 29th of December 1793, and that the merchandi- 
 tbat day uuually shipped by the testator to fhiludel-
 
 OF MARYLAND. Si 3 
 
 pJiifij and did arrive at Ainloy, in the state of New 1807. 
 Jrr,v,/y, 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 (lie sum of 40,000 
 livrt-s, lent by him to the testator, were by him received 
 with a view to the removal of the testator, and of the plain- 
 tiff, to the U. A', and to the repayment of the loan in the 
 U. S. And for that purpose he gave in evidence a part 
 $f the will of the testator, made at Philadelphia on the 1st 
 of April 1795. He also gave in evidence the aforemen- 
 tioned memorandum, bearing date on the 30th of Septem- 
 ber 1795; and proved that it was made in. Philadelphia, 
 in the U. S. and that at the time of making the memo- 
 randum, and also the will ot the 1st April 1795, the plain- 
 tiff 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 
 3797, 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 plain- 
 tiff constantly resided \vithin, 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 ti dan.<i fe dil con- 
 linenl*" in the eleventh clause of the will of the 14th of 
 April 1797, m.ean and were intended by the testator to 
 express, "within the United States^ The plaiutiff, to 
 prove that by the French laws, if applicable to this case, 
 he cannot be prevented from recovering in tin's action, 
 gave in evidence, that by the laws, '*as no man can be- 
 stow 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 be- 
 quest by will:" and that by those laws an heir, with bene- 
 fit 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 tlie estate; and that the children of a dcccas-
 
 * CASES IN 'I HE COURT OF APPEALS 
 
 1807. C(l person, or any of them, may by (he 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 jurisdL timi after such comple- 
 tion, to make up their determination before they fleet to 
 renounce the inheritance altogether, or to take it a> heirs 
 vith benefit of inventory, within which time they may 
 elect to take the inheritance as heirs, with benefit of in- 
 ventory, whereby they do not lo->e their li^ht-as tmlin i-. 
 Ami 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, accoiding to the 
 naid laws, the plaintiff y;a\e in evidence, that he hath not 
 in any manner intermeddled with the estate of the testa- 
 tor in the Island of Marl'iii'mitc, nor received any thin:; 
 therefrom as heir, and that the administration of the 
 
 always remained in the hands of, and been conduct- 
 ed bv, Dominick Pechier of that islari'i, the exeiuior ap- 
 pointed by the will of the I4tb of April 17'.>7, 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 themm. 
 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 
 i lively. The plaintiff', to prove that the defendant 
 cannot be considered as a legatee under the l-'fciich luu-, 
 and the laws of the said island, admitting those law- ! 
 apply to this case, and to operate upon it, and therefore 
 cannot avail himself of the character ul lei/mee by wa\ of 
 defence in this action, gave in evidence, that by the said 
 ]aws any legacy given to an illegitimate child, either di- 
 rectly or by a declared trust, to tlr.: prejudice of the legi- 
 timate children of the testator, is void, e\re>,t a > to 
 part of such legacy as the courts of the place shall deter- 
 mine to be a re. i- 'liable subsistence for such illegitimate 
 child, in proportion to the extent of the. estate, and other 
 circum-taiue-; and that by the said la\\s all le^:;r:e- ^ixeli 
 upon irut, lor whatever pttrj;usp\ are absolutely 
 
 void. And the plaintiff al-<> irnvt> in evidence, that the le- 
 M to ihe defendant, in and by the will of the 1 Irh 
 of April 1797. \\a- -i\en on a secret lnM fur the b-'iielit 
 of a certain Ckeri Tcrrici; art illegitimate son f the t-
 
 OF MARYLAND. g 
 
 tator, and to the prejudice of the plaintiff, his legitimate r !807. 
 son. The plaintiff, to prove that the will of the J4th of 
 April 1797, and the legacy claimed by the defendant un- 
 der that will, have been and are annulled, and wholly set 
 aside by a court of competent jurisdiction in the Island of 
 Martinique ode red to read in evidence an exemplification 
 of a judgment or sentence rendered by the supreme court 
 of that island, which exemplification purports to be attest- 
 ed 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 Laislre, brothers, beneficiary heirs of their fa- 
 ther, appealing from the sentence rendered in the Sene- 
 chausse of St. Pierre on the 20th March last, on the one 
 part, and Mr. Dtiqutsnay, 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 
 Chcry, private legatee of the said Teriier de Laislre, de- 
 fendant, on the other part, and also Mrs. Pigache, resid- 
 ing in Sf. Pierre, and Mr. De Sobry residing in the United 
 Stales 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 Ter- 
 rier de Laislre, appealing from the same decree, as to the 
 main part thereof which condemns him to the costs, OQ 
 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. Dvquemay, in his quality of tutor 
 ibr the minor Chery, also appealing from the saitl 
 decree, on the one part, and Messrs. Terrier de Laislre, 
 brothers, in their said quality, defendants, on the 
 other part, and also Mrs. Pigache and Mr. De Sobry r 
 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 Laialrc, brother*, 
 defendants, on the other part, and also the said Mr. Du~ 
 quesnay, 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 kind's attorney general, acting in his conclusi-
 
 i ISES IN' THE COURT OF AIMM'.ALS 
 
 ISO!". on>, ami Mr. Durairrroi/, counsellor, in his report pronounc- 
 
 * > -' in-Minon the appeal of the sa'ul Mrs. Pl^arhf, and of Mr. 
 
 . 
 j. ". Diu/m -' '<'//. a-, well in his o\vn and prirate name, as in his 
 
 quality of tutor for the minor Cht-nj, have annulled the 
 s.iid appeal with fine and -'-. \nd pronouncing like- 
 n the appeal eirered liv M-".-r. '/'<. ///, '/r I.nhtre^ 
 brother-., have annulled both ir>e appeal and the object 
 thereof enacting and stating, as well upon (he tone IUM- 
 ons :ak"ii l)v them in the main action, ;ir upon those of the 
 appeal Declare the testament and codicil of the late 'l\r- 
 rier de Laitfre, of the 1st of April 17:'.i, 14th April and 
 10?h Jtilv iriT, to be null and of no effect) inconsequence 
 reject the demand in delivery of the legacies made to them 
 by the said tes'ar.ient and codicil, and the costs, notwith- 
 standing, to be paid out of the mass of the estate. Or- 
 dain, &c. Done In the Sovereign Council of MarHniqtoti 
 on the 7th of May 1801. Delivered the present exempli- 
 fication to citizen /)r,,,ii,)iffne Pe,chter^ merchant in Sf. 
 e, an execu'or of cit'r/.en Terrier <lc Lalafrr, at his 
 request, on (his 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. 
 
 "We, Grand Judge of Marliniqne^ certify all whom it 
 may concern, that the above signature is (hat of C. / 
 i/w.-j, Chief Secre(ary of the Court of Murtinijur, 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 
 (Seal.) year of the Republic. Sealed witli our seal, and 
 countersigned with our signature. 
 
 "Lr. Fcssier, Grand Pres. 
 w By the Grand Judge, 
 
 "The Secretary, 
 
 Fouchri/, Son. 
 
 "Lniii* rfrcamlial, consul of France, for the state of 
 Maryland, one of the l.'nitfl Stnii.t of .'/inrriar, residing 
 at ftallimore, certify, that Mr. Le Fcssicr de Grand Prf, 
 who has signed the above legalization, is Grand Jml-e of 
 the Islari'l of Mrtrtinitjnr; that the signature is truly lii>, 
 and tmt faith oujjht to be given to it, as uell in as out of 
 judgment. Certify also, that the Grand Judge is the only
 
 OF MARYLAND. 
 
 authority existing in the French colonies for the legaliza- 1807. 
 
 tion of judicial acts. 
 
 In faith of which we have signed these presents, and have 
 
 thereunto affixed the seal of the consulate at 
 (Seal.) Baltimore, the 6th Brumaire, year 13th, (28th 
 
 October 1804.) 
 
 L t Jlrcambal." 
 
 The plaintiff', to prove that the attestation was in fact under 
 the hand and seal of the said grand judge, produced and 
 read in evidence a deposition sworn in open court, and ad- 
 mitted 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 deposi- 
 tion is annexed to the exemplification, and is in the fol- 
 lowing words: "Personally appeared in open court, Jin* 
 toine Baudouin, of lawful age, who being duly sworn, ou 
 his oath did say, that he is well acquainted with Le 
 (\tmus, of Saint Pierre, in the Island of Martinique, whose 
 signature is affixed to the paper hereto subjoined; and also 
 with Le Pettier, dc grand pres, of the said island, whose 
 signature is also affixed to the said paper, and is well ac- 
 quainted 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 pro- 
 per 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 Pessif.r, grand pres. 
 And further, that he is acquainted with the seal of office 
 of the Grand Judge of the Island and Colony of Jkarli- 
 nique, and that the seal affixed to the said paper, and pur- 
 porting 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 IStii of Germinal, in the 12th year of the 
 French Republic, Grand Judge of the Island and Colony 
 tf Martinique :and that he the deponent being a French ci- 
 tizen, 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 where- 
 by any judicial proceedings can be authenticated. And 
 VOL. n. 28
 
 >18 CASES IN THE C OURT OF A V P K \LS 
 
 1807. that he, this deponent, is not a la\wcr l>v pn>IV--ion, hut 
 a merchant, and derives his knowledge of the said consti- 
 tution and government from the common practice of (he 
 place, the general understanditij;. ami his general informa- 
 tion as a French citi/.en, and an inhabitant of the said co- 
 lony. The deponent further says, that there is not any 
 general seal for the >aid colony; the Captain General hav- 
 ing one for all aflairs 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 depart- 
 ment; and that he derives this knowledge from his own 
 experience and transactions, and from his general know- 
 ledge of the said colony and government." The defen- 
 dant objected to the reading of the exemplification as evi- 
 dence, 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 
 
 Harper and ftoyd, 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 Hen ry vs. -flrfn/, 3 East, 221. Aloises vs. Thorn- 
 ton, 8 T. /,'. 303. Church vs. Hubbarl, 2 Crunch, 238. 
 Peahens Evid. 72, 73, (notes,) 49; and the act of 1785, 
 ch. 46, s. 2. 2. That the record is full and complete ac- 
 cording to the principles of the law of England They 
 cited Peaked Evid. 68. 5 Hue. Jib. tit. Pleading, 323: 
 and 1 Esp. A. P. 6. 
 
 Martin, (Attorney General,) and Purvirmce, for the De- 
 fendant, cited Pcuhc'a Evid. 46, 47. 3 Inst. 173. fiilb. 
 L. /:. 1 7, 23. Mrlan vs. The Duke of /7/r/r/mw, 1 Dos. 
 $ Pull. 14 Ij and Talleyrand vs. Uoulanger, 3 I'es. 448. 
 
 CHASE, Ch. J. The Court are satisfied upon the sub- 
 ject, and are of opinion that the mere showing the seal ot 
 a court of our own state in another court of the state, i 
 sufficient authentication of the judgment of the couit it 
 purports to certify. But if it is a judgment of a t 
 court, the seal of the court does not prove itself, but mii-t 
 be proved by testimony. The court are of opinion, tfcat
 
 OF MARYLAND. 210 
 
 the testimony produced in this case is sufficient to prove 1807. 
 the seal of office of the Grand Judge 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 pro- 
 per 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. 
 Adty, 3 ast, 221, it was debt upon the very record pro- 
 duced. The court, however, are of opinion, that this re- 
 cord 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 iu 
 which they ought to proceed as to the proof of the French 
 Jaw. 
 
 Martin (Attorney General,) for the Defendant, contend- 
 ed, 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 construc- 
 tion is to prevail. 
 
 CHASE, Ch. J. seemed to concur in this idea of the at- 
 torney 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 of such laws, when proved, to 
 the case before the court. 
 
 5. The defendant offered to read to the jury certain let- 
 ters 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 iu this cause; but the plain- 
 tiff 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.
 
 IN TflK COT-RT OK APl'K.U.S 
 
 18i CIIASK, Cli. J. The letters beins admitted to be in the 
 
 hand wtiti- . of Mr. Prcftnr, the witness, the court arc 
 of o|)inion they may be trail to (lie jury, for nne JIT 
 alone; tli.it is, to impeach tlie rreilit of the wilm-vs a- ID 
 what he has sworn upon his examination under the com- 
 iui>-ion. contradictory to the contents of the letters: but 
 that the letters are not admitted as e\idrme to pro>e 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 Vhpv to the execution or performance of 
 it in another, is governed in all things, both as to il 
 sence and the mode of enforcing it, by the laws of the lat- 
 ter cotrntry. 
 
 CHASE, Ch. J. If the contract is in writing it will itself 
 show where it is to be executed} but if it does not z\ 
 by the face of it, the presumption is that it is to be 
 cuted in the country where it was made. If it do- 
 pear that it has a view to be executed in a particular coun- 
 try, it must be carried into effect pursuant to the l;t\\ it 
 tint 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. 77re second bill of exceptions. The plaintiff prayed 
 the opinion of the court, and their direction to the j'ry, 
 that if they are of opinion, from the evidence before them, 
 that the testator of the defendant \va>, on the 1st of April 
 and the 50th of September 1707, indebted to the plaintiff 
 in the several sums stated in his account filed in this ac- 
 tion, or any part thereof, and that the plaintiff at those se- 
 veral times resided within the U. S. and was known by 
 the testator so to reside; and that he, on the two iii-f at>o\e 
 mentioned days, acknowledged the debts, or any part of 
 them, and directed them, or any part of them, to be paid 
 out of his estate after his dc.ith, and on the last mention- 
 ed day directed, in and by his will of that day, that all 
 debts in the U. A 1 , should be paid out of his property ia 
 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.
 
 OF MARYLAND SSI 
 
 Ifurper and Jinyrl, for the Plaintiff, cited Thorn vs. 
 
 ins, 2 I es.3G, 37. n,- s.,!,,/ 
 
 Martin, (Attorney General,) for the Defendant, also 
 cited Thorn vs. ll'dtldn*. J> nice vs. Bruce, 2 Bos. 8f Pull. 
 : iiolea;) and Sinclair vs. Monsieur de France, Ibid 
 3G3. 
 
 CHASE, Ch. J. The court cannot give the direction pray 
 ed for by the counsel for the plaintiff. The court are of 
 opinjon, 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 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, al- 
 leged 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 Jlubin 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 receiv- 
 ed 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 claim*
 
 IN THE eorirr OF APPKAI.> 
 
 
 Dr. 
 
 Dolls. 
 
 561 16 4 {1498 18 
 
 291 15 10 
 
 "78 
 
 which he hail against the defendant as executor oft! 
 tat or, for which he had brought his suit, to wit: 
 
 "Bctijanun Dt Sobry, Executor of Mchail J. Timer dt Laistrf, 
 deceased, 
 
 To Leu-it Jt. Terrier de Laitfrt, 
 
 Current's . 
 
 1792, Deer. 9. To 1236 liv res, money of 
 the Islands, being the price of 4 .skives 
 sold and delivered to the testator on my 
 departure from Martiniro to France, as 
 bj, his written acknowledgment, dated 
 SUth Nov. 1795, equal to 
 
 Interest thereon from this day till 21st 
 May 1803, at 5 p. ct. 
 
 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 
 
 Interest thereon from this day till 20th 
 May 1803, at 5 p. ct. 
 
 Aug. 1. To 28,000 livres tournois, re- 
 ceived by said testator for my use this 
 day, us per his letter of this date, equal 
 to 
 
 Interest thereon at 5 p. ct till 20th 
 May 1803, 
 
 1795, May 22. To 3440 livres tournois, 
 received by said testator llm day for my 
 use, as per his two letters, one of this 
 date, and the other of the 15th Octo- 
 ber 1795, equal to 
 
 Interest thereon at 6 p. ct. till 20th 
 May 1803, 
 
 857 5 22S5 75 
 
 428 12 6 114'J 67 
 
 2000 
 
 5333 33 
 
 980 9 8 2614 64 
 
 245 14 3 655 23 
 
 117 18 
 
 514 40 
 
 5483 11 7 $146: 
 
 The defendant then offered in evidence, that in conse- 
 quence of tins account so filed, the defendant had taken 
 out the three last commissions which were executed, in or- 
 der to examine into the justice of the claims in the account 
 stated, and the operation of the French laws thereon; and 
 \e in evidence the commi-^ions, the returns thereof, 
 and the evidence obtained thereon, and prayed that the 
 court would not permit the plaintifl' to change the nature 
 of his claim contrary to his own election deliberately made,
 
 off MARYLAND: 
 
 and contrary to his claims as exhibited by him to the de- 1807. 
 femhmt 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 
 5-1,925 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 mer- 
 chandises 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 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 there- 
 of 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 opi- 
 nion, that the plaintiff is precluded, by his account filed, 
 from going into evidence to establish his claim for the mo- 
 ney had and received by the testator for his use, in a man- 
 ner different from that in which he has elected, by his ac- 
 count, containing a notice of his claim, to consider the tes- 
 tator 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 successi- 
 on of the testator, and to be made answerable for such 
 debts of the testator as were contracted under the French 
 laws, which have their force and effect according to the pro- 
 visions 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 takenaipon themselves the management 
 ami administration of the succession, or in the name of his 
 brother, Marc dnlhony, alone, if he has alone taken upon
 
 IN M:K t OIRTOF APPF.A. 
 
 hinuc'f rt ration and mana-M-mem. ami not in the 
 
 name of the plaintiff alone, us the suit is now brought. 
 
 K. Ch. J. The court are of opinion, that ary cre- 
 ditor may MIO the executor pro forma, as he is called here, 
 provided he slum* himself to ie a creditor under the laws 
 of the country where the contra* -I <-d into. That 
 
 a> In- ts remain in the hands of (he executor pro 
 
 forniit, he i :MI--.\ iMa'.)le to the creditors; and if tin 
 
 irplus. it is to 'zo info the mas* of the succession, 
 there to be distributed Jic.-ordin^ to the laws of suco 
 of the country where tho person i> domiciled. 
 ' The court are of opinion, that personal property ad- 
 heres to the person: that wherever the person is domicil- 
 ed, the property ^oes in distribution, according to I'M- law* 
 of that country. Whatever fund in this country is an- 
 '!r I'.ir deb'*, i- answerable to all creditors alike, 
 (provided they show them-'elvs to be creditors,) accord- 
 in-' to the laws of this country. 
 
 O / 
 
 If our laws ive a preference to our citi/.ons the de- 
 fendant should have pleaded that our citizens had that 
 preference. 
 
 The plaintiff* if to be considered as a creditor, and in no 
 other capacity: and if he has not intermeddled, so a^ to 
 prevent his recovery as such under the French laws, he 
 niu-t recover in this action. 
 
 The court arc of opinion, that if the jury should find, 
 from the evidence, that the plaintiff*, as heir pure and HIU- 
 ],le, or as brneiiciary. heir, has not intermeddled with the 
 rstate or succession of the testator, and that the te- 
 \vas indebted to the plaintiff, at the time of his death, that 
 then the plaintilV has a ri^ht to support thi suit. Hut the 
 court do not mean to dr i !<, that an interim- ddlin^ <> 
 
 'ill' in the quality of heir pure and >i'iiple. or a- heir 
 with benefit of inventory, would d -fc-at his ri^ht of recovery 
 in this action, that <|iietion bcin^ ^\\\ open. 
 
 The- court are of opinion, that the a ru in the han<! 
 the defendant, a* executor of the testator, are liable to the 
 lit of debts due to the citi/.ens of France from the 
 or, contracted there, or in the colonies of /' 
 and that the defendant will be only accountable to th> 
 tan.' ( utor. the heir pure and simple, or heir 
 
 with benefit of inventory, for t!ic surplus remaining.
 
 OF MARYLAND. 
 
 payment of debts, which surplus is distributable according 1807. 
 to the laws of France. The defendant excepted. 
 
 1 0. The ffth bill of exceptions, the defendant further 
 
 offered in evidence, that the testator bein"; a French citi- 
 
 o 
 
 zen, and having his domicil in the Island of Mnrtinique t 
 died there, having first duly made the wills and codicils 
 herein before mentioned and set forth, and that at the time 
 of his death lie was possessed of certain property in the 
 If. S. and had certain debts due to him therein; that Pe- 
 chicr, in that Island, as testamentary executor, took upon 
 himself the management and administration of the succes- 
 sion of the testator, according to the French laws; that the 
 succession, according to the laws of France, is the whole 
 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 an- 
 swerable 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 chil- 
 dren constitute but one heir, and are equally entitled to 
 the residue, where there is a residue. That Peckicr, by 
 taking upon himself the management and administration of 
 the succession, was the person whose r )uty 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 exclusive right, 
 in the first instance, to take upon themselves the manage- 
 ment 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 H/arc 
 4nthoiuj Terrier dc Laislre^uA that they, sometime in the 
 VOL. n. 29
 
 CASES IN 'i IIF> conn- OK APPEALS 
 
 1807. month of July in the year 1T98, did take upon themselves^ 
 in tin- Maml of .Ihirliiu'/iifi, the management ami adini 
 ni-tration of the surce^inn: and that I'echicr did then and 
 there deliver up to them the succession as far as it hail 
 come to hi* hand-; and thereupon it became the duty of 
 Ihc plaintiff, and his brother, to take into their p<.-~.--ioii 
 ihe 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 fur 
 which this action is brought, were contracted and arose in 
 the government of France, and are subject to the operati- 
 on of the French laws, and payable out of the succes-iou 
 according to those laws, and in such manner as is by those 
 laws provided. That he, the defendant, according to the 
 wills and codicils, and with the assent of Fcchier, while he 
 had the management and administration of the succession, 
 obtained letters of administration in due form of law, in 
 this slate, to collect the debts and other effects, which 
 \v ere in the U. S. and which constituted part of the suc- 
 cession, 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 hand*, after pay- 
 ment of the debts, is retained by him, he claiming the 
 same as a legacy given him by the testator. That no cre- 
 ditor of the succession, or other person, can, by the French 
 lav/.-, brin >uit against, or have any claim against a lega- 
 tee, who hath obtained his legacy for which he ran j 
 cute any suit, unless the succession is insolvent, and that 
 the insolvency must be established by judiciary proceed- 
 ings in a French court, of competent jurisdiction; and that 
 there was no evidence given by the plaintiff of such pro- 
 ceedings having been had. The plaintiff further offered in 
 evidence, thrft by the laws of Frttncc, and her cnlonir-. a 
 co-heir of a person deceased, with benefit of inventory, 
 who is al-o 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 
 plain liiT in this action never did act as co-heir of ti 
 tate 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 di-
 
 OF MARYLAND. 22? 
 
 rection to the jury, that if the jury should be of opinion, 1807. 
 from the evidence befjre them, that the testator did pur- 
 chase from the plaintiff, in the Island of Martinique., some- 
 time in or befoie 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 21 st of May 
 17P3, 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 ol the testator, and account-, 
 ed for with, or repaid to the plaintiff; and that the testator, 
 at the time of his death, was possessed of personal proper- 
 ty in this state, and elsewhere within the U. S. to the 
 amount of SI 3, 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 
 ihe 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 execu- 
 tion 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, thci; 
 so pro ruta* 
 
 Harper and Boyd, for the Plaintiff, cited 7he Dutch 
 West India Company vs. Van Moses, 1 Sir a. 612. 2 Hu- 
 bcrus, B. 1, tit. 3 p. 26, cited in Emory vs Greenough, 3 
 Dull. Rep. 370, (note.) Melan vs. The Duke of Fitz- 
 jamcs, \ Bos. 4* full- 142. Robison vs. Bland, 2 Burr. 
 1077,1078,1083. Imlay vs. Ellefsen, 2 East, 455. Ne- 
 gro Hector vs. De Kerlcgand, 3 Harr. <$ Mullen. 185. 
 Wright vs. Nutt, 1 //. Blk. Hep. 152. Folliott vs. Og- 
 den, Ibid 123. S. C. 3 T. R. 734. 3 Bac. M. 30. Hun- 
 ter vs. Potts, 4 7.7?. 182, 183, 184, 185. Pigott vs, 
 Aittson, in Court of Chan. Sinclair vs. Monsieur dc, 
 France, 2 Bos. <$ Pull. 364, (note.) Mostyn vs. Fubri- 
 'gas, \ Cow p. 1 74. fiixon's Ex'rs. vs. Eamsay's Ex'rs. 
 3 Crunch, 324. Talleyrand vs. Bonnlanger, 3 Vrs. 448. 
 Thorn vs. Tf'alkms, 2 f'es. 56. 2 FonM. 442; and Do- 
 mat, 349.
 
 228 CASKS IN THE COURT OF APPEALS 
 
 1807. Martin, (Attorney General,) for the Defendant, uk-d 
 
 Harper vx. Hampton, 1 Jlarr. $' Johns. 45.1. - J/nbcrus, 
 JJ. 1. tit. 3, p. 56. Ci'mtninz r.?. '/'/* Avfr, 1 //rr. <V 
 Jo/ins. 540. Mrhtn vs. The Duke of /iVr/wr/jr*, 1 7?o. 
 4' /'*///. M~. 7'al/eynind vs. Jtoimlangcr, 3 f'w. -I 
 and J'a/f//, B. 2, c/. 8, *. 110, 111. 
 
 CHASE, Cli. J. delivered (lie opinion of (he < nurt. Thp 
 court are of opinion, (hat it is a general prinupli', \\li"uli 
 admits of a few exceptions, that in construing conti. 
 made in foreign countries, the courts aie governed by due 
 lex loci as to what respects the eciu-e of (he contractj 
 that is. the rights acquired, and the obligations treated by 
 it. That the remedy or mode of enforcing (he contract, L> 
 to be conformable to the laws of the country where the ac- 
 tion is instituted. IHycon's ex'rs. vs. Ramsay's cx'rs. 3 
 Crunch, 
 
 The exceptions to construing contracts according to the 
 lex /oct, which at present occur, are 
 
 First. Where by the terms of the contract it \ to bp 
 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 more*, 
 as for the price of prostitution Such a contract, though. 
 le^al 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 Fruncr, that a co-luir 
 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 (he jury 
 may find due on the contracts made in France, according 
 to the law* 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 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 sur- 
 plus or residuum which may remain after payment of all
 
 OF MARYLAND. 
 
 the debts and legacies; and that a debt due to one of the 1807 
 co-heirs is as much entitled, on principles of justice, to 
 payment, as a debt due to a stranger; and that it is incum- 
 bent 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 re- 
 nounces as co- heir. 
 
 (a) The court arc 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 re- 
 covery of the plaintiff, that the plaintiff has a right to re- 
 cover 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 impedi- 
 ment to the the plaintiff's recovery. The defendant ex- 
 cepted. 
 
 Harper, for the Plaintiff, before the jury, upon the laws 
 of France, cited 1 Doniat, 346, 347, 348, 349; 2 Cou- 
 tume dc Paris, 252, 299, 302, 
 
 Martin, (Attorney General,) and Purviance, for the De- 
 fendant, also before the jury, referred to the testimony 
 taken under the several commissions issued in this cause. 
 2 Pothier, 116. 1 Poth, 77, 2 Coulume de Paris, art. 
 500, 301, 252, 302, 303, 304, 307,309,317, 31 8, 344, and 
 the commentary of Fcrriere on those articles. Serres, 304, 
 505, 400, 311, 312, 363, 309, 351, 393, 421,315, S22 r 
 323, 314, 308, 262. Ordinance of Lewis XIV, art. 1, 4. 
 1 Coutume de Paris, art. 179. 13 Vin. M. 50, 414. 
 Pcake's Evid. 48; and Collet vs. Keath, 2 East, 260, 
 
 Verdict and judgment for the plaintiff, and the defen- 
 dant brought a writ of error to this court. 
 
 The cause was argued before TILGHMAN, BUCHANAN, 
 NICHOLSON and GAXTT, J. by 
 
 Winder, for the plaintiff in error, and by 
 Harper and Boyd, for the defendant in error. 
 
 (~a_) This part of the court's opinion was given by them after 
 the argument of ail tin- points of law in the cause, and while the 
 attorney general was addressing' the jury.
 
 v tsES IN Tin; mruT OK AP 
 
 TIM < concurred in the. opinions of the 
 
 t, in the //*/. fnurl/i. and fijth bills of exceptions, 
 talwcii by the defendant iu that court. 
 
 M'Duualil 
 
 JUDO MI- M AH I KM ED. 
 
 P) fF.MBER. IIoLUXGSWORTH, C/ I'. V ! 'DoNAI.D, tt (ll 
 
 APPFM. from a decree of the court of chaacerv 
 
 Tw^S ie bill of complaint. Tin- material f;u N wore 
 
 fcLiniT* .'X'VM'^ The complainant Mac/iel, (one of the appellants) whilst 
 Mi"'"ivV l h-r r !i!" *he was solo, on the 21st of September \7 -ei/ed 
 
 ..hwr. r.r- in fee of the tracts of land called A<Y/i ArA- ami 
 
 mi* vow* the Tiiiilur Stck. A mama"* settlement took place between 
 
 Mill loin! tun' : 
 
 .%; and in the complainants, on the 2'. , umber ir!<), and. 
 
 fl f dt r'!m" ll Mr' A'/ ( ' c Goodwin was appointed trustee. This settlement was 
 follows: "This indenture, made the 21st of September 
 
 "i conv, janie between the said Jesse and Itachcl, stated, that the -aid 
 JrVa* ^'. > }<^ r -J fssc granted, &c. to the said Lyde, and the said 7iW//7, 
 p'proprfcivd 1 "by with the consent and approbation of the said Jesse, grant- 
 
 tmn.or limiiir.oM ed &c. to the said //'(/'. liis 1, ohs and assigns, all 
 
 : acts of land called Jficfi Seek and UvwimFs Tiinlnr Seek, 
 
 tu create an rfa(e 
 in tie the lim- 
 iiatiun mint he 
 
 t,. .1 s. i,.l Lit 1>. 11 v. '.nit to rrentr a fee tail, to .1 S. ainl tin' )icii- nf liij I . .!< </< rfrfttre 
 
 itit, are u.it> ' i.|ilaiul\ !> 
 
 >nee. rreat- 
 
 al-? 
 
 . j /< rewrf CM | i^iiiti- in .nij uilii r :i ili-cd of bargain and 
 
 ? 
 
 
 m^rrr a tni<t .Mie ittn'-Acr-Wi 1 '" 'h- rrflitun r ,, 
 
 ; j.a i I IT ii I. r. -i in Mini to anosinT. nnlcti hy flne, comti 
 
 rTrry or . > il \. uteil and a. : fouling tu >; .iVi! l>> the .n : ' 
 
 < A. 47. 
 
 ani.ir. In-Ill t-i Ix 
 
 iii.|t-.|-t or tin all ing 
 , t ..f Iji.i?, , 
 
 word< i :.l inn bciujip ml by 1)10 iilitiiu'i<>n ol nular import 
 
 . 'inly upon u !>i.l ul' renew, or bill in the 11*- 
 
 A !.. * ' mnilr, hit heforr enrolment. 
 
 ' " mut In c< liiidrrrd I by the ro 
 
 .IT. or tor ome mar 
 
 . 
 
 ; ' 
 . i .,... 'i t. . !.-- I - !.. . - . . , if. c '..i\ ^ ! - 
 
 ' 
 
 11 aceotdui^y. 
 
 At tu lh dii.u>clli<u U-iv...vii t.utu ixicutcd aitj < \< viilo.j . 
 
 di.-
 
 OF MARYLAND. 3t 
 
 rt to have and to hold the said lands," &c. "unto the said 180 
 Lvde Goodwin, his heirs and assigns, forever. In trust 
 nevertheless, and for the uses," &.c. "That she the said Ra- 
 chel shall have, hold, occupy^ possess and enjoy, the said 
 lands, 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 in^nner, to all intents and purposes, as it* 
 she the said Rachel hud remained a feme sole, and unmar- 
 ried; 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 Thomases 
 death, without lawful issue, the said lands and premises 
 shall revert to, and be vested in, the said Rachel, and her 
 heirs, forever," &c. The marriage took eft'ect, and rin the 
 4th of January 1796 the complainants, together with Lyde 
 Goodwin, executed a deed to Thomas Parkin, the son of thfc 
 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, set. 
 On this 15th day Of February 1796, personally appeared 
 Jesse Hollingsworth and Li/de Goodwin before us the sub- 
 scribers, two justices of the peace for Baltimore county, and 
 severally acknowledged the aforegoing instrument of writ- 
 ing 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 Hollin^sworlh, and being by us pri- 
 vately examined apart from and out of the presence and 
 hearing of her said husband, did acknowledge the afore- 
 going instrument of writing to be her act and deed, accord- 
 ing to the intent and meaning thereof, and declared that 
 she made and executed the same, and this her acknow- 
 ledgment 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 dis- 
 pleasure." This acknowledgment was signed by the jus- 
 tices. 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 chan- 
 cery against the complainants, under the devise to the mo- 
 ther as devisee of Parkin, or as his heir at law, stating that
 
 CA?F.> f\ THE COI-RT OF APPEALS 
 
 f'urLin died seized in fee of tlie lands: that they were h*M 
 creditors; that Parkin and A/'AVwm were insolvent, and 
 i; a sale of the land. The complainants answered 
 the bill, admitting Parkin tube seized in fee of the land*, 
 and that he devised the same to his mother, one of the 
 complainants. A decree, for a sale took place; S. (.'Imm-, 
 junior, \vas appointed trustee fur making the sale, who 
 made a sale of part of the lands, and made a report thereof 
 tb the chancellor, wVu-U was rmilinmti. \->< the consent of 
 the complainants. After the :! the con- 
 
 firmation thereof, the complainants alleged, they had dis- 
 covered that Parkin never was seized of the lands in fee, 
 but that the estate in fee belonged tu the complainant, /'- 
 cAc/;and that the deed from the complainants to Parkin, 
 was not such a deed as passed the estate of a married wo- 
 man. The prayer of the bill was, that the chancellor would 
 decree the sales of the lands to be null and void, &c. and 
 lor general relief, &.c. 
 
 HANSON, Chancellor, (October term 1805,) decreed, that 
 the bill be dismi<-.e;l. Xc. From this decree the complai- 
 nants appealed to this court. 
 
 The cause was argued at December term 1806, before 
 CHASE, Ch. J. TILGHMAN, BUCHANAN, NICHOLSON and 
 GAMT, J. 
 
 Key, for the Appellants, contended,!. That the deed 
 of theSJst of September 1790, b^ing a marriage settle- 
 ment, vested the fee of the lands in Goodwin, as trustee, 
 for the sole and separate use ot Mrs. OolKngncortfi, for 
 life, 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. Hollingncorth, and her heirs. 4. That no 
 power of disposition is given by the tru>t deed of the 
 therein mentioned. 5. That the deed of the 4tli 
 of January 1796, does not pass any estate or interest 
 from Mrs. Hollinsmcorth. 6. That an equitable estate can 
 e be conveyed by a fnne covert, unless the law is 
 umiplied with, than a legal estate can, if there is no p;i\v- 
 cr ^i\en in the trust deed pointing out a different mode. 
 7. That no act done by Mrs. Ilullingsworth does dne-t 
 her estate in the lands. 
 
 On the Jir.it, second, third, and fourth point*, lie ii 
 cd, that the trusts created by the deed of 171'0, "tie not
 
 OF MARYLAND. 833 
 
 executed by the statute, and that where they were not, 1807. 
 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, pi. 25. Ibid. 68, pi. 28. Co. Lilt. 21, a; 
 and Shep. T. 52,75, 103, 113. 
 
 On the fifth point, he referred to the act of 1715, c/t. 
 47. Webster's Lessee vs. Hall, 2 Harr. fy M l Henry. 19. 
 Flanagan's Lessee vs. Foung, Ibid 38. Lewis's Lessee 
 vs. Waters, 3 Han. $ M'Hen. 430. Jacob's Lessee vs. 
 Rraner, 1 Hctrr. S? Johns. 291. Peddicoart's Lessee, vs. 
 Riggs, Ibid 293. Hawkins's Lessee vs. Burr ess, Ibid 513. 
 The Corporation, $c. vs> Hammond, Ibid 580. Heath's 
 Lessee vs. Eden, Ibid 751; and Greene vs. Muse 4" En- 
 nails' 's Lessee, (ante 62.) 
 
 On the sixth point, he cited Shep. T. 507. Gilb. L. of 
 Uses, 1, 2, 244. traits vs. Ball, 1 P. Jims. 109. 2 Blk. 
 Com. 337. Banks vs. Sutton, 2 P. ll'ms. 713. North vs. 
 Champernoon. 2 Chan. Ca. 78; and Culvert's Lessee vs, 
 Eden, 2 Harr. 4- M'Hen. 336. 
 
 Harper, for the Appellee, contended, 1. That this was 
 substantially a bill of review, on the ground of new mat- 
 ter 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. Miff. 
 34. 3d. It is not for newly discovered matter. Chan. 
 Pr. tit. Rill of Review. Miff. 34. And 4th. If tin's could 
 be considered as newly discovered matter, it is still not 
 ivithin the rule. It must be matter which the party had 
 previously no means of knowing. Ibid. 
 
 2. That Mrs. HoHingsworth's acknowledgment of the 
 deed ot 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. Sf M'Hen. 19. Pat- 
 ttson's Lessee vs. Chew, \ Harr. $ Johns. 587, (note.) 
 Gittings's Lessee vs. Hall, in this court, on appeal. 
 
 3. That Parkin, under the deed of 1790, had a re- 
 mainder 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, 
 
 VOL. ii. 30
 
 CASES [NTHBCOURTOf APPEALS 
 
 1807. lie ei'ed . li'lf. Com. 107. Lilt. Sect. SI. Co. /.i//. 
 
 . u. .'/brahmn r*. 7V r8, A//e 
 
 CooAe, .-/HI. 114(>. 1 . /'itra 
 
 vs. Yard!ij, / !. /./.'/. 2.>S. 7'nnihui . 
 
 Cooper, Cro. ./. 47 /. 7>'r/7rr, C</r///. 
 
 & S. C. 1 A 7. AV/i/ui. 101. S. C. .1 Sail;. 39fi 
 That trust c>t,r v.-riiotl in their creation, limita* 
 
 lion aim extent, by all t!ic same ruK-s d" construction, 
 which apply t . ho citeil 2 lilk. Coin. 
 
 T. .10:. 7^/t.f o/ \orfolk*s case, 3 C/^/.-j. r</. 
 P/J//J/W TVS. Philip*, 1 A /r//.v. 35. //"c//.v r.. 7Ar//, 7A/c? 
 109. Hanks w. V/tUnn, C /'. ////i*. 713. Jy>jfs rs. 
 ^o, 1 77ro. Chan. C<t. 1 212. Philips iw. Hf^'^ey, 3 T'es. 
 Jr. 127. Bashaw rs. S/jrnrrr, 78. ^'r// ?-5. 
 
 Baldwin, 2 r. (!'>. : 7JmW. 10. 1 Fearnc, IGfi. 17). 
 Clenorchy vs. liosvilfe, ('a. temp. Finch, .3. 7/7/r</ /<-. 
 Jlnr.Hri/, e 2 J" Peacock trr, 11,1.1 1 '.>.". 
 
 Daffornc vs. Goodman, Ibid 3G.1. 7/VA/; vs. JJ'cbb, I 7?^ 
 r r*. Kilbltr ">7. 2 
 
 1'li.it .ulinittinj; the acknowledgment to be 
 ineflectual, and Parkin to have only an estate tail, vith 
 remainder over in fee to his mother, until the interest dur- 
 inu; her life is at end, the estate is liable for J'urkin's 
 debts; and that this application, if free from all other ob- 
 jections, is prcmatur'e. lie cited Lord Iiardn'ichfs obser- 
 vations in Pan-let vs. JJclaval, 2 1'es. 660. 
 
 Martin, in toply. 7. As <o the rjucsfion what estate 
 
 d !)y the deed of 17'.)'), he cited Co. Lilt. 
 1 AW/. M. 8.>8. Turnni'in t )/>er, Cro. ,/ar. 
 
 BamJieJdvs. P^'nt.n. 1 /'. /T/^v. ."7, f'/i.; Perkins, sect. 
 173. 2. He contended that the court of chancery deter- 
 mines what estate passes under the tnisN: and wl... 
 interest that court determines to exisf, goes as a 
 estate at law. He cited 5 Hac. M. tit. T.vrv A- '/ 
 508, 552, 354, 379, S8G. f.'ilti. Law cf f'xrs, 161, 162. 
 
 3. As to what is an r\cc;.ii-d, and what is an executory 
 trust, he cited 2 Fun'il. 50, (note.) Ibid 40(), (note, t\.) 
 
 4. As to the leal tfioct of the deed of 17DG, lie i, : 
 
 to the act of 1713, <'/. -47 U'll^cn on I'tna, -:o. \ichol- 
 son'x /! I Inn-. A- M'lfin. 4'l ( .) : and Son - 
 
 d-ni'x Ca-e, 9 (' /.-. 1 17. 5. That if a. feme corrrt holds 
 separate estate under a marriage settlement, t,he cannot
 
 OF MARYLAND. g 
 
 convey in any other mode than that prescribed by law, 1807. 
 where there is none pointed out in the marriage settlement. *- v ' 
 
 HolUiiKSWort 
 
 He citetl 2 Buc. M. tit. Curlcsu. aearle vs. Grecnbank, 
 
 > M'Dur.aM 
 
 3 Alk. 695. S. C. 1 Vcs. 298. Roberts vs. Dixwelt, 1 Alk. 
 GOT. 6. Whether the appellants have a right to bring the 
 present bill, if considered as a bill of review upon dis- 
 covery of new facts, or as an original bill, he cited Milf. 
 35, 74. 1 Han: Chun. Pr. 306. Hind's Pr. 38. Anony- 
 mous, 3 Atk, 17. ^(orris vs. Le Neve, Ibid 2G, 35, 3?. 
 
 Curia adv. vitlt. 
 
 At the present term the opinion of the court was de-v 
 livcred by 
 
 CHASE, Ch. J. In this case, the first question to be de- 
 cided 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 2lst of September 1790? 
 
 The question aries on the following words in the haben- 
 dum of the deed: "And from and after her decease, that 
 Thomas Parkin, and his heirs, fur 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, fui ever." 
 
 It is admitted that Lyde Goodwin, under this deed, 
 took a fee simple in the lands in question, in trust for 
 Jiachel 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 
 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 ,7. S. and his heirs, 
 and to create a fee tail, to /. S. and the heirs of his body,
 
 230 < kSES IN niK ( (" ivT nj- AIM'KALS 
 
 1807. It is established that the words (It rory/orr utio are not in- 
 
 * *~' dispeiisablv ne< nit may be supplied bv words 
 
 Holl.noworth 
 
 r equipollent or tantamount, plainly designating or pon 
 out the body from whom the heirs inheritable are to i 
 or descend. 
 
 In this case the limitation is to Thomas Parkin, and his 
 heirs, and in case of his death without lawful issue, tu ir- 
 M-rt to liachd Parkin, and her heirs. These words are 
 comprehended in one sentence, and contain tlie two re- 
 quisites necessary to constitute an estate tail. The sub- 
 sequent words, "in case of hi* death without lawful issue," 
 qualify and restrain the generality of the precedent ex- 
 pressions, (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. T/K-JIHIS 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, e\].iv-si\e of 
 the quality of the estato 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 2*ydc 
 Parkin, under the deed; and be'm;, aUo of opinion, that 
 the said words, in a conveyance of a freehold estate would 
 create a fee tail, it becomes unnecessary to decide the <\ 
 tion, so ably and learnedly discussed !>y the counsel, how 
 far the court is at liberty, in expounding a deed of con- 
 veyance 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 by the common law, 
 in the construction of a conveyance .f a freehold estate, 
 and to ^i\e 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. 
 
 Ai to the operation of the deed of 179G. It is unques- 
 tionable that a feme covert cannot transfer or pa-s her in- 
 terest in land to another, unless by fine, con imm i 
 or deed executed and acknowledged according to the mode
 
 OF MARYLAND. 237 
 
 prescribed by the act of 1715; and the question to be de- 1807. 
 cidet! by the court is, whether the acknowledgment of the 
 deed bv Mrs. HoUingMUOTth is conformable to the said 
 mode, and cfiectiuil to render the deed operative in law to 
 convey her interest in the lands in dispute to her son Tho- 
 mas 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 si- 
 milar import or meaning substituted in its place. The 
 word year, in that part of, the certificate, means a particu- 
 lar specific kind of fear, and signifies that 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 es- 
 sentially requisite, and that the omission of \yords 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 confirm- 
 ing the estates of purchasers,* 5 passed at November sessi- 
 on 1807, ch. 52, it appearing by the certificate of the ac- 
 knowledgment of Kachel flollingsworth, that she made 
 her acknowledgment privately and willingly, out of the 
 presence and hearing of her husband. 
 
 wfo to the question, whether the present bill can be sus- 
 tained? 
 
 The 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 en- 
 rolled. 
 
 A bill in the nature of a bill of review lies after the de- 
 cree is made, but before enrolment. 
 
 A decree must be considered as enrolled, after it is sign- 
 ed by the chancellor, and filed by the register.
 
 39 
 
 DA8ES IN TI1K COURT OK A1PKA1.> 
 
 
 A bill of review will only lie for two caiiM- I 
 apparent on tlic deciee, or for some mailer relevant, 
 
 ' (lie tuneol' the 'decree, ami di.-cn\eicd since. No- 
 thing appears on the. proceeding en llie lir.-t bill l support 
 the pusitiou that there is etrur apparent on tlie decree, tue. 
 deed- not being made a part of the proc.ee>!. 
 
 It cannot lir supported tor matter existing at the time, 
 of the decree, and discovered since, \\ithout aflida\it )t 
 such inatk'r, and tin 1 existence of it at the time of ti 
 
 ;o lay the foundation for applying to the chancellor, 
 for hi leave to tile a bill of review, and obtaining such 
 leave. 
 
 On petition s> such matter, supported by affida- 
 
 vit as the ground for filing a bill of review, the chancelloi 
 ; .is judgment on the propriety of inlerfeilng or 
 muddling with his decree, for the cause disclosed, and 
 or rejects the application accordingly. These re- 
 <|iii-itc-, for laying the foundation for the present bill, not 
 .nphed with, the court are of opinion, tlut 
 cree of the chancellor, dismijaing the bill, beafliriu- 
 cd, with coats to tlie appellee, 
 
 DKCIIEE AKFIUMEDs 
 
 inKn. 
 
 NORWOOD vs. NOUWOOD. 
 
 VW!.MO Arrr.Ai. from a decree of the Court of Chancery. TIte 
 
 . 1 i ;: l ' s ; p ,';. bill, tiled by the complainant, EJwanl Xon \v Ap- 
 
 .) on the 31st of July 1 BOO, stated, that he and the 
 
 ilefendant Suimtil Xomood, (now Appellant,) being joint- 
 
 ly indebted to /;. Dvhmy, on the COlli (.f April i 
 
 : !!r' to him their joint bond, conditioned for the payment of 
 
 In r ol C, u:>il it- . 
 
 . : .i " .Ml sterling, and X30 current inonov, with in: 
 
 in hw m ti ... 
 
 a* . i'hat the uefendant having omitted to pav anv part, suit-; 
 
 iii.- 
 
 .ere brought ;; . !i on the bond, BQU judgment 
 
 -.lini'd. That the complainant paid X 100 1 1, current mo- 
 
 tpiin.t P. chr(. 
 
 : ilr li n-l v 
 
 in Id- 
 
 \ . , i \ 
 
 li ( ihrm: ihl lir 
 
 . 
 
 :, !mlf 

 
 OF MARYLAND. 830 
 
 }ry, on the 17th of September 1788, and glOOO on the 1807. 
 28th May 1795. That the balance due from him on the 
 judgment, after the deduction of the payments, amounted y 
 v/ith interest and costs, on the 29th of July 1800, to 321 
 5 10. That the defendant, contriving to injure and op- 
 press the complainant, obtained an assignment of the whole 
 judgment against the complainant, and issued an execution 
 tlicreon in his own name, as assignee, and threatens to levy 
 the whole amount of the judgment* although the defendant 
 is himself liable for one half. That the defendant is in- 
 debted to the complainant in 776 15 6 current money, 
 exclusive of interest and costs, recovered by the latter of 
 the former by a decree of the court of chancery. That 
 the defendant refuses to discount out of the judgment any 
 part of the money due to the complainant. Prayer for gene- 
 ral relief, and an injunction. Injunction granted, &c. 
 The answer of the defendant stated, that on the 20th of 
 April 1784, at the pressing solicitation of the complainant, 
 he became his security to D. Dulany, in the bond stated 
 in the bill, and which bond was given to renew a former 
 bond of the complainant to Ditlany, for the sole and pro- 
 per debt of the complainant, contracted about the year 1 772. 
 That the defendant neither directly nor indirectly received 
 or participated in the benefit of any part of the consideration 
 of the said debt, and that he signed and executed the bond as 
 the security of the complainant, and he positively denies the 
 allegation of the complainant, that the same was for a joint 
 debt, or that the defendant ever received full or any satisfac- 
 tion for the same. He admits the payments stated by the 
 complainant, and the institution of the suits, and recovery 
 of judgments on the bond, and that he the defendant hath 
 obtained, as the surety of the complainant, an assignment 
 of the judgment recovered against the complainant, as 
 was lawful and just for him to do, and he claims and in- 
 sists, that he, as surety of the complainant, hath a legal, 
 just, and equitable tide, to proceed to recover the balance 
 thereon due. He admits that the complainant hath ob- 
 tained a decree in the court of chancery against him for 
 the sum stated, but he insists that the complainant cannot 
 justly claim any discount for or by reason of that decree, 
 which is unjust, and upon which he hath prosecuted an ap- 
 peal to the court of appeals, anil where he confidently ex- 
 pects a reversal of the decide. He denies a! I fraud, &c.
 
 10 I ^SES IN TIIK roi'RT OF APPK \1,.> 
 
 . Jpf The defendant u r :ivo notice of a motion to dissolve the in- 
 
 junction at tlic next term. 
 
 If \\--ov. Chancellor, at the next term, on the motion to 
 
 I an order continuing the injunction. 
 There \va much testimony taken, and it was the object 
 of the complainant to prove that he had paid to the defen- 
 dant more than His 'proportion of . ho>e 
 executor the complainant was, and that the debt due to 
 I)rt!t;:n/ was from the estate cf the father: and that the 
 bond wa* executed by ihom as joint obligors, each to pay 
 <lt. The judgments obtained by the executrix of 
 JJnfnnii against K. and S. Vor/roiV, (tlie pavnu-nts made 
 beinj; deducted,) in consideration of the principal sum of 
 money, and interest due thereon, being paid by .V. 
 , all I'M' riu;ht, &.c. of the plaintiff to the jud-:: 
 .-(I unto A". \oi-ir-m I on the 2-lth of July ; 
 >U'un,i f"/io/,v, F>f]iiire. attorney for t ix of 
 y: and in virtue of that a-Mirmnent, a writ of fieri 
 i >d on the judgment against /'. \oru<)o<l, in the 
 name '/, as the a>i^;nee of the executrix of 
 J)nl(wy, returnable to the general court at October term 
 1800. 
 
 Hwsov, Chancellor, (June term 1803,) passed the fol- 
 Icnviucr interlocutory decree: The case is that of one of 
 two oii'.i-j; >! in a bond obtaining an assignment of tlr- 
 
 the bond, and endeavouring to avail himsi-lf of it 
 i itv; whothcr or not !>e wa-* such, i- the main, 
 if not the only question in dispute. As it does not appear 
 from the face of the bond that the assignee wa- <nd\ 
 curity, his answer to the bill is not to be co isidei 
 standing ^ood if it be contrary to the testimony <.t a* l<-.i-t 
 two uitnrxM'-, nr of one witness, and strong efjui'aljle cir- 
 cum-.tan(:e. Whether or not lie wa* a mere surety must 
 then be determined from the testimony. 
 
 The chancellor must declare that the testimony is by no 
 means such as to convince him that -V. Xorioood joined in 
 the bond with E. Norwood &% a mere security. Bu; 
 ^ In- did, and that no part of the consideration v 
 liini ivroivi'd from Dnl(ini/, the obligee, if he received a 
 I'M-ation from /.'. .V.-r'/vjorf for joining in the bond, he 
 is surely to be charged with it.
 
 Of MARYLAND. 
 
 Upon the whole, the chancellor conceives himself obliged 1807. 
 to decree; and it is, &c. decreed, that the parties account 
 with each other before the auditor; and that the auditor of 
 this court state and return the account to this court, charg- 
 ing E. Norwood with one half of the bond to Dittany, in 
 the bill and answer mentioned, and giving him credits for 
 payments appearing to have been by him made, charging 
 interest on the principles in this court established, and 
 stt iking the balance. 
 
 Bat still the chancellor is by no means satisfied with re- 
 spect to the merits of the cause. It appears that S. Nor- 
 wood received upwards of ,269 in specifics, as his share of 
 the personal estate of the father, when a far less sum was 
 due to htm; and it is probable that the said sum was the 
 consideration for his joining E. Norwood in the bond to 
 fiulany. The case is wonderfully perplexed and confused, 
 probably from the want of keeping regular accounts. IF 
 that sum was the consideration, and if, after deducting 8. 
 Norwood's share of the personal estate, it was inferior to 
 the one half of the bond to Dittany, surely Norwoods 
 entitled to credit for the deficiency. Let then the audi- 
 tor state an account in a different way, charging E. Nor* 
 wood with the whole of the bond to Dulany, giving him 
 credit for payments, and likewise for the delivery of the 
 specifics to S. Norwood, deducting S. Norwood's share of 
 the personal estate. The account, when returned, shall be 
 subject to the opinion of the chancellor, ori exceptions, &c. 
 The truth is, that in the present state of affairs the chan- 
 cellor does not feel himself competent to pass a final de- 
 cree to satisfy himself. He knows not whether in the ac- 
 count in another cause between the parties, E. Norwood, 
 hath not had credit for the said sum. Let the auditor ex- 
 amine the former account. If already E. Norwood has 
 received a credit for the said sum, probably he ought to be 
 charged with the whole of the bond to Dulany. However, 
 the whole is open to examination and controversy. 
 
 The Auditor having reported, and both parties having ex- 
 cepted to some one of the accounts stated, 
 
 HANSON-, Chancellor, (July 25, 1804.) After hearing 
 the exceptions of the parties, and the ingenious arguments 
 of counsel relative to the statements of the auditor made 
 vender the decree of the 3d of August last, the chancellor 
 VOL. ir. 31
 
 - 1 N '! HK COURT OP APPEALS 
 
 1807. has bestowed the most anxious attention to, and has >ong 
 deliberated on a cause, than which he never attended tt 
 one more perplexed and difficult. Tlie testimony i- \>rv 
 Jar tVom being satisfactory, and yet it appears unquestion- 
 ably entitled to Mime weight. 
 
 I 'pon the whole, tho chancellor concMM-> it heM to con- 
 sider the complainant as the sole principal in the bond to 
 Dulnni/. (the evidence in the cause showing that it was 
 given on account of bond* b> him passed without the de- 
 fendant,) and to charge the defendant with '269 6 4,t\\el\<* 
 months after the day of the date of the probate of the last 
 will of E. Norwood, deceased. It is accordingly ordered, 
 that the auditor state another account differing substan- 
 tially from account No. 2, by him endorsed and filed, &e. 
 And, on the 27th July 1B04, it was further decreed, that 
 the injuntlion should be dissolved, provided that no more 
 be considered due or levied by S. Norwood, by his execu- 
 tion on tile judgment at law assigned to him, than the costs 
 at law, and the sum of 278 9 0, with interest, &c. But 
 vhereas E. Xorivood, by his petition this day, hath stated 
 on oath, what is true to the chancellor's knowledge, that 
 he hath a decree against S. Norwood for a sum which, 
 ivith the lawful interest, is superior to the aggregate sum. 
 of 503 116, due to X. Norwood from E. Norwood, it \* t 
 Conformably to the petition, adjudged, &c. that .V. Nor- 
 wood be further enjoined not to proceed on his execution 
 at law until the further order of the chancellor, it being 
 reasonable' that there be a discount between the parties. 
 From which decree the defendant appealed to this court. 
 
 The cause was argued before CHASE, Ch. J. Tu/.n 
 BUCHANAN, NICHOLSON, and GANTT, J. 
 
 Johnwn, (Attorney General,) T. Buchanan, and / 
 per, for the Appellant, contended, that the complainant 
 ied up to the relief prayed for in his bill, and that 
 the general prayer for relief related only to that a*k.ed on 
 the facts disclosed in the bill. That the allrifatd and 
 probata must agree. That a discount of the amount of 
 the decree obtained by the complainant against the de- 
 fendant, ought not to have been allowed by the chancellor, 
 n- it was not claimed as a ground of relief by the bill. 
 That there was no allegation in the bill, of the informality 
 of the assignment to the defendant of Duluny's j
 
 OF MARYLAND; 
 
 and the defendant's right to claim under it was not denied 1807. 
 by the bill. 
 
 ey, for the Appellee, contended, 1. That the appel- 
 lant had no legal assignment ol Dittany's judgment against 
 the appellee, to enable him to issue execution thereon in 
 his own name. 2. That the appellant was a joint princi- 
 pal with the appellee, in the bond to Dulany, for a valua* 
 ble consideration paid to him; and being a joint principal, 
 vas not entitled to an assignment of' the judgment against 
 the appellee, so as to issue execution thereon. 3. That 
 the amount of the decree by the chancellor, as well as the 
 other sums, supposing the appellant not a co-principal, are 
 properly discountable, with any other sujms he might owe 
 to the appellee. He referred to the act of 1763, c/i. 23, 
 and insisted that the appellant must prove, 1st, That he 
 yvas a surety; and 2d. That he has a regular and legal as- 
 signment. That tli.e assignment was made by the attor- 
 ney, and. not. by the principal creditor or plaintiff in the 
 judgment, as required by the, act of X763; and that the 
 execution, issued in the name of the, appellant, as assignee 
 of the plaintiff, in the judgment, was not justified by the 
 act under an assignment made by the attorney of the plain- 
 tiff, and in whioh it was not stated that the appellant wa^ 
 the surety. 
 
 CHASE, Ch. J. (a). The court are of opinion, that the 
 decree of the court of chancery be reversed, with costs to 
 the appellant, and that the injunction be dissolved. That 
 the clerk of this court state an account between the par- 
 ties. The court are of opinion, that the appellant was co- 
 principal and joint debtor in. the bond with the appellee to 
 Jtylgnyi on the, ground; that the specifics, to the amount of 
 .269 6 4, were delivered and paid to the appellant by the 
 appellee, as a consideration for the appellant's becoming a 
 principal with the appellee in that bond. Therefore charge 
 the appellee with one half of the bond, &c. c. 
 
 By the statement made, as directed by the court, a ba- 
 lance remained due to the appellant, (after giving the ap- 
 pellee credit for the payments he had made on the judg- 
 ment, and the, amount of the decree by him obtained against 
 the appellant on the 22d of February 1803, and charging 
 him with the appellant's distributive share of his father's 
 C a J Tilghman and Gantf, J,
 
 CASKS IN T1IK ( orilT OF APPEALS 
 
 1808. estate, wit of ^"313 12 5, current m< 
 
 The court therefore </<crr<(/, that the appellant be permit- 
 ted to take out execution airainst tlie appellee on tin- judg- 
 ment, &.c. for the sum of JL3\c< \t 5, current money, u itli 
 interest from the 19th of January 1803, and the ci> 
 law; and that the execution be sued out in tlie name of 
 Jttbccca Dulamji as executrix of JJaxiilj for the u>e of the 
 appellant. DKCHV.I: ULVKKSKD, ^c. 
 
 Jfsr, (E. S.) GUXBY vs. SI.LBY. 
 
 in .n action of AppFAL from If orctstei county court. Debt on aguar- 
 *!.' tondlK't'Ai tlian's bond, dated in 1797. At the trial, tlie plaintiff, (tlie 
 n(r'i.r'.H by. appellee.) offered a witness to prove that the lands, the 
 
 , that lnd ... 
 
 c.nii. |Hittnir w property of the plaintiff, were, during tua minority, rcntea 
 
 lur\iiir hi. mii<H-i- * 
 
 i by u.t D y tj, e defendant, fnow appellant.) tothe uitnesg. in ir'-l, 
 
 Kuanliut to ttic - 
 
 riHMhVi I'l-V^ilt' an ^ ^ at l ' ie rcnt a e ri ' L> ^ u l' on Between the ^itne.-sand de- 
 iLHtrrJM. - f olu | all t \\ a > le-sciied in con^eiiuence of an agreement be- 
 ^ < ",^i,l' l t-i.-,",i tween them, that the viua-ss ^hould take charge of the 
 lI'iTi'.'r- tUat ihouM defendant's stock upon the lands. The defendant object- 
 'iIK'ito^k ed to the admi-Mon of such evidenre, a, incompetent. But 
 SEfc*^!?*^* the court, [Polk, Cli. J.] was of opiuion, that it was pro- 
 " per to be given to the jury, and to examine the win, 
 to the said facts; and the same was accordingly done. The 
 defendant excepted; and the vet diet and judgment being 
 against him, he appealed to this court. 
 
 The cause was argued before TII.GIIMAN, BUCHANAN, 
 and U\vn, J. by 
 
 ll'Iiillinxlun and Jfilaoi, for the Appellant, and by 
 / Hayti/, for tbe Appellee. 
 
 JVDCMENT REVEKSED. 
 
 JuNE,(E. S.) EMORY'S Adm'r. D. B. N. vs. THOMPSON 
 
 APPEAL from the General Court. The Appellant broi.-ht 
 !^Trn?ory >U< !l Uo tiH! an action of dtht upon t'uc administration bond of E~ 
 
 bwwrtvry of the 
 
 otatc at UK deceased, ecrlHM nnilrr <h- bind m' ml i.l I " IN i<> ' trvr copy 
 
 ttkrn fTMb (be onriiul a<l<!i: nn un . : < 
 
 in'),' )'> i ' . -I.!, r -;i . . . ii.,; ; . !.. i .,11: i.. u )'t , \ :..i >r- n, iln,-/!. lli-:u:^ .t, j(. . ,> .M ill' 
 
 i. 
 
 An 'inr <" IM- jn "uii' 
 
 frrrd b| Ihr .limn ' a | i r-i n I. 
 
 Ike dniii. 1 < 
 luuliil uti.nti.- ! ii|i in tin- lint-inn! << 
 
 of the !: gf the tfMMMtl HeJ 
 
 T<.ri MUM vf OM.IM.) tptcificd in Uc taij (wper, M part ot (be (uviii ud <.batici> ul tLo AjvCaiW.
 
 OF MARYLAND. 245 
 
 , (who was administrator with the will annexed of 1808. 
 Surah Emory} against the executrix of John Thompson, 
 who was the security of Forman in the said administration 
 bond. The defendant (now appellee,) pleaded performance, 
 specially, and the plaintiff replied nonpcrformance, stating 
 a bequest by Sarah Emory to the plaintiff's intestate, of 
 sundry parts of her personal estate, which had been be 
 queathed to her by her deceased husband, over and above 
 her third?; that after paying the debts, &c. there remained 
 a residuum of 1000 current money, &c. -/fr/oim/cr, that 
 after paying debts, c. there did not remain of the estate, 
 &c. any residue, but that the whole estate was paid away' 
 in payments of debts, c. Issue joined. 
 
 1. At the trial at September ternj 1805, the plaintiff; 
 having given in evidence a copy of the inventory of certain 
 goods and chattels of Sarah Emory, then ottered an official 
 copy of a certain paper, purporting to be an additional in- 
 ventory to the inventory of her estate, and certified under 
 the hand and seal of the register of wills in ami for Queen- 
 Anne's county, as evidence to charge Qzekiel Form-tin t in 
 his capacity of administrator of Sarah Emory, with the 
 several sums of money therein specified, as part of the 
 chattels, rights and credits, of Sarafi Emory. The certi- 
 ficate was thus': "Additional inventory to the inventory of 
 Mrs. Sarah Emory's estate, ottered by Ezekiel Forman t 
 the administrator." [Here follow the articles, 4'C.] '* Ma- 
 ryland, Queen Anne's county, to'wit: I do hereby certify, 
 that the above and foregoing instrument of writing is a true 
 and perfect copy, as copied from the original additional 
 inventory' of Sarah Emory, ottered by Ezekiel Forman 
 administrator, and lodged in my office. In testimony," 
 &c. Signed by the present register the iQth of J-htgiist 
 1803. The defendant objected to the certificate, and con- 
 tended that the same was not competent evidence in law 
 to charge Ezekict Forman with the amount of chattels and 
 credits therein mentioned, as proposed by the plaintiff, or 
 %vith any part thereof. And the court, [CAa-se, Ch. J. Done, 
 and Sprigg, J.] sustained the objection. The plaintiff ex,-* 
 cepted. 
 
 2. The plaintiff, having given in evidence a copy of the 
 inventory of certain goods and chattels of Sarah Emory, 
 then produced two certain original papers iu writing, as
 
 CA>}> IN THE COURT OP APPEALS 
 
 1808. f.!!nv. , t<> wit: A. ''Additional inventory to the invented 
 iv of Mr.-. >W;v.7; En, cry's estate, otlercil by Z,'c </,// /i/r- 
 iwv/i, the administrator." \_lbre follow the articles.] B 
 ept tlie bonds due to tbe estate, tlie crop of wheat 
 and tobacco, and the money found in the estate, a \ arti- 
 cular account of which i.- kxi- d with the court by the ad- 
 ministrator." And the plaintiff proved, by // 'ilfiiun If. 
 Xichohon, Esquire, register of wills for < { : . -.-inn's 
 county, that when applied to for copies of original ppi-in 
 in the above cause in April 1804, he found the original pa- 
 pers carefully wrapped up in the original inventory of th 
 estate of Sarah Emory, aud filed in a bundle of other pa- 
 pci - belonging to his olljce, and he has no recollection of 
 having seen this paper befpre; but he finds that he gave a 
 certificate of the paper on the 2Js-t of October 17 ( .i',>, lor 
 the plaintiff', but has no recollection of the situation in 
 which the paper was in 1799; but from the manner in which 
 papers are usually filed away in his ofi'ae, he believes that 
 in the year JT9'J, the papei was wrapped up in the 
 situation that he found it in April 1804; that he was ap- 
 pointed register of wills in the year 1796, and he has no 
 knou ledge of the time or by whom the above paper was 
 brought infy the register's ofiicc, but believes, and is firm- 
 ly convinced, that it was lodged in the office before !> 
 appointed register. Tlie plaintiff further proved, by com- 
 petent evidence, that the writing on the paper marked A, 
 uas the hand-writing of one Donald M'tynnn, who atU-4 
 \eial years as the clerk of Eztkifl Funnun; but the 
 witnf3>, by whom the hand-writing of Donald JJ'tyuinn 
 i rovod, detlaicdjihat he had no knowledge at what 
 lime and at whose instance the paper was made out, nor 
 lias he any knowledge of its being lodged in the n-jjvters 
 ofiioe for f(tnm-. 'June's county, and that the words "addi- 
 tional inventory, "endorsed thereon, were the hand -writing 
 of J-'.zfhid t'ormuir, and a!*o that the writing on the paper 
 marked li, wa> the hand-writing of said Formirn. The phiin- 
 1ilV then offered tin- oiitinal papers, so pioM-d, asevidenci 
 to charge Jtzfliirl J-'ornutn, in bis tap-acity of administrator 
 of Sarah Emory, with the several sums of money specified 
 in the paper marked A, as part of the chattels, rights and 
 credits, of \arah Emory. Hut the defendant objected to 
 said papers, and contended that the ame were not compe 
 tout evidence. And tlie court, [Chats, Ch, J. Done, aug
 
 OF MARYLAND. 
 
 J.] were of opinion, that they were not competent 1 $08. 
 
 evidence in law to charge Ezckid Forman, as aforesaid, 
 
 Chaplin 
 and refused to permit them to be given in evidence to the 
 
 jury. The plaintiff excepted. Verdict and judguient for 
 the defendant. 
 
 Wright, Hammond, and John Scott, for the Plaintiff. 
 Martin, (Attorney General,) Carmichad, and James 
 Scott, for the Defendant. 
 
 The plaintiff appealed to this court. 
 
 THE COURT concurred with the General Court in the 
 opinion expressed in the first bill of exceptions, but dis- 
 sented from that expressed in the second. 
 
 JUDGMENT REVERSED, AXD PROCEDENDO AWARDED. 
 
 CHAPLIN vs. CRUIKSHANKS. JUNE, (E. S.) 
 
 APPEAL from Kent county court. The plaintiff in the 1 ^^^ c r t T or ^ 
 feourt below, (now appellee,) an infant 19 years of age, by ^.["h^Thede". 
 his next friend, brought an action of slander against the ^^^wEtS? 
 defendant, (the appellant.) The first set of words charg- u,e p< c"fenian" ? 
 
 , . .. . . .. , . horse Held, that 
 
 ed in the declaration, with the usual inuendoes, were- the word* wen- * 
 <k my horse is poisoned, and will die, and Robert Cruik- The court re- 
 
 . . -fused to direct the 
 
 shanks had done it, and that he had furnished a certain ne- J'T, "^t if the 
 
 horse was a!ivi j , 
 
 2*0 Charles with oil of vitriol, which the said negro Charted the wor i s 'ii ia 
 
 ilii decltatio 
 
 had rubbed upon him, and that he also believed that the , w . ere ." ot ac'tiona- 
 
 ble, tlie same bi 1 - 
 
 same was premeditated." The second set of words, a^lhf^e' 6 1 * to 
 charged, were the same words, adding, "and that he be- .!,, e "u rt ( ii s * 
 liftved that he was capable of such things, and that he would ^ W onij ipkf 
 make no secret of it, but would tell it every body." Plea ff-'SfiSTifi 
 
 , .1, i 1 wlncli tin- plaintiff 
 
 not guilty, and issue joined. W i ff i,t be indicted, 
 
 tlicy \vt-i-e not ac- 
 
 tir. ii;ib!e, as tin- (!i- 
 
 1. The defendant, at the trial, moved the court to direct fmciaiit mi^ht 
 
 take Bdrantaee of 
 
 the jury, that if they should be of opinion, that the horse, knam*torju4K 
 which the defendant is alleged to have charged the plaintiff 
 with poisoning, was still living, that then the words laid in 
 the declaration are not actionable, and of course their ver- 
 dict must be for the defendant. But the court, [7V/^//- 
 man, Ch. J.] was of opinion, that the above was irrelevant 
 to the issue, and therefore refused to give any direction 
 fkereon to the jury. The defendant excepted.
 
 CA>K> IN INK ConiT OF APPEALS 
 
 1803. plaintiff having brought this action <! s!.i 
 
 a-ain-t the defendant, in which lie alleged (hat the plaintiff 
 
 , , . 
 
 had poisoned his florae, and there beinz DO averment HI the 
 declaration that the hnne w;.- dead, the defendant moved 
 the court todiiect the jury, that if they >hould 1)C of opi- 
 nion, that the \\ords charged in the declaration to have 
 ':cen >poken by the defend;*!. '. so spoken, yet 
 
 as it did not amount to an oftence for which tlie plaitnilV 
 
 i be indicted, the words were not actionable, and of 
 course their verdict in int. be lor the defendant. Hut tha 
 court, [Titghmun, Ch. J.] declined ufivina; the direction to 
 the jury on the subject, as the defendant mi^ht take ;s 
 
 "f it in arrest of judgment, and acconlingly r- 
 to do so. The defendant excepted. J'crdicl for the plain* 
 tiff, and dam : o '. ^5 current monev. M-ttion 
 
 by the defendant in nrrrst of jtclgment 4t for that the de- 
 claration of tlie plair.fiiV is insufficient, there b'-inz no 
 -ated, 01: which the said action can be main- 
 tained.'' The co'inly court over-ruled the UMiion, and 
 rcncK-red judgment on the verdict for the plaintilf. 
 
 dirtiri 'iti'f ;ui.l /V/y/.-y, for the Plaintiff, and 
 Jf rl^lit and Ilmaton^ for the Defendant. 
 
 The Defendant appealed to this court. 
 
 THK COURT concurred in the opinions given by the court 
 lie.iow in both of the bills of exceptions; but reversed thu 
 
 \ nent, because the Wonls laid in the declaration 
 not actionable. 
 
 JUDGMKXT 
 
 JCVK, (F>. ^.) M \RTIN- and SMITH rs. GU.VBY, ct al. Lessee. 
 
 . \i. from Worcester county court. The appellee. 
 i he plaintiff in the court below,) brought an action of 
 mil on a demise from The I'tifn/ "f .'III JIalhnrs 
 .'/, to wit, J.'fui (liinhi/i &c. &c. of a tract of land 
 s / //;//, it bein^ part of lot No. in the town of 
 
 *"<!,'. ' .1 '... '.-'' Vnuir Htll, in th- couniy of It'orc^!' r. The defr.nd.iiiK 
 
 T n> below pie, i ' ''///, and took general defence. At 
 
 *fcJ l ^ l j 1 ^' the trial, the plaintiff oflercd to read in evidence certain 
 
 ritiic, in a b'r.l. (tuinorting to b", and provetl by nobcrt 
 
 '{jndy, who vas formerly rector uf the vestry, to be hand-
 
 OF MARYLAND; 249 
 
 ed down to him as the vestry book of the parish of Ml 1808. 
 Hallows, viz. "The proceedings of a vestry held at Snow 
 Hill, to wit, the 4th March 1G94-5. This vestry hath ap- 
 pointed that the church shall be built at Snow Hill, upon 
 the lot formerly laid out for that use, and by reason that 
 the distance of 50 or 60 miles may not answer all 
 person's conveniency to attend from the remote inhabi- 
 tants, therefore it is agreed by this vestry to have a chap- 
 pell of ease, the better to answer the more northern in- 
 habitants of the sea side. It is further agreed by this ves- 
 try to build a church at Snow Hill of 40 feet long," &c. 
 *' May the 5th 1741. Cap. James Martin moves to the 
 vestry of this parish, for the liberty of building a small 
 house on the lower end of the church lot, near the river 
 side, to set up a pair of scales in; and the said Martin has 
 liberty to remove the said house and scales off the lot 
 aforesaid, when he shall think so fit.'" The defendant ob- 
 jected to the evidence as incompetent. But the court 
 [Polk, Clu J.] overruled the Objection, being of opinion 
 that the testimony was legal, and admissible. The defen- 
 dants excepted. Verdict and judgment for the plaintiff, 
 and the defendant appealed to this court 
 
 The cause was argued at June term 1807$ before CHASE* 
 Ch. J. TILGHMAN, NICHOLSON, and GANTT, J. by 
 
 J. Bayly and Whittinglon, for the Appellant, and by 
 If'. B. Martin, Dennis and JVilson, for the Appellee. 
 
 JUDGMENT REVERSED, AND PROCEDENDO AWARDED. 
 
 HOWARD vs. MOALE, et aL Lessee. JUNE." 
 
 APPEAL from the General Court. The appellee, on the The death of on 
 
 ot the Je-sorj ot 
 
 5th of May 1801, instituted his action of ejectment for a t a c? io ' n lail 1 'j ff ' e '"e* 
 
 ment, maybe tug- 
 fe*tert after the .jury are sworn, and h'n heir, &c need not appear, or be made a party 
 
 On the question, whether or uot.i KIMIU of laud from the propriemrj to "R M, and the hein of hit 
 body lawful!) begotten^ forever," created an estate tail in K M, and upon his death without issue. 
 'h- rt version was in tlm staie itaudiair in the place ot th? proprietary, notwithstanding H M'$ deed 
 bwrini* the otatetail. Held, thai mi interest in (he nature of a trust estate tver was vested either in 
 tlie. 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 partie* having a reTenionary inte- 
 rest expocu.it on the determination of the estate tail 
 
 The jura reralia, as attached to the person of the kins' in England, nercr did attach to the lord 
 proprietary of Maryland 
 
 The proprietary held the dominion of Maryland, and property of the soil, which he could ell ami 
 tSispuse of in the same manner as any other person, and subject to the anie beueficiary. leral and 
 equitable rights, as in the lii.n.l-; of any oilier person, 
 
 On au equitable interest being obtained i 11 land agreeably lo the rules of the laud office, the party 
 became entitled to a grant wuich he could compel of the proprietary 
 
 VOL. ii. -32
 
 CA*ES IN THE COURT OF APPEALS 
 
 18()8. tract of l:;tul called David's Fancy, situate in ttrtltimorl 
 * -*-~- J countv, into forty Bright separate parts, to be divided, nine 
 
 Howard. ' J * 
 
 IMi 
 
 parts of which were demised by John A/oo/e, nine parts bjr 
 
 Thererersiiinarv int. rest of the proprietary, referred in land* granted hy him, might H- destroyed 
 liy deed made In i!,-- tenant in tail, under the net ol June 177J, rh. i. . --ii.t 
 
 i.l II v in. In .dual 
 
 I -I the |irupneiary'i reversionary iir liy in: ititiition in hit phi. 
 
 line-- th. art (.1 ! rh 23, w Hi ,..;, t*iit to bar and extinguish the resiiuunarj interest 
 
 of th. 
 
 A icraiit lor en heal land will re'ate back to- <he original grant 
 
 A uUi <|u. in gripi. emering lain! in hich the proprietary had a .-evenionary interest, will ope- 
 rate to past such i,,,.,,,., 
 
 A grant nt Im .1 .1: >. \. d u..<! r .1 i HIM .inn warr ml. will not p ,^, |-md not then liaWe to escheat, 
 but which iitlei wnrdt became escheat, Hiid a such granted til H third person. (Sutr) 
 
 An etches' ci r il'u-.it. and gr.inl do, liy npivaiion of law, relate In ' 'i-act,and is ttriclly 
 
 within the principle and tuk- nf '.aw of re! m m l>. lueen ri-.ints und ci-rtil' 
 
 Win., ili IN - t .n, ,1 si coml cm; so. i.f anori~inal gran.' i.t M tract nl l:.nrl called D K, are deserib 
 M "feefiftning ut . a bounded l..tu-t tr.-i . Irn:- ilie N K Ixi indi-d tree of U I' 1 , land, (called U 
 miming In tin- Und ..(' th aid I', K. ' . |is I a txmnoVd oak, th-ir N K 150 ps. (u a Ixiiindid 
 l| oak ot the said /''land; -ind :hc first anil - nf ui\ t-vlirnt grant o ilics-nnc laiul 
 
 called O K, it described at 'Mx-ginning at s !ocn-t m> Ix'iindi <f at or sery mai tn the p'act- where 
 atnod a ' . .inn.: ir. i- of D K, and a bounded tree of ;i tract nf land. 
 
 Called I" C. firmrrl- f i-ennini; lh in-. \> nil Ilie s:iiil land \'. r 'S |,s. (i( b ing ex- 
 
 fHeued in the eer'ificate n f thu original iurfej in , ,in In i In- land of tin- said 1'. K d.s |>,. in u h.,iinJ. 
 rd ok. \ .n itill Imnndini; nit thetaid hunt, to ih'- N W branch 
 
 >f Patapieo '. , tie r.-in i \pn^-< ! ii> run N E 1.^0 p. to a l.nuinled rnl oi.1% nt tin vinl 
 
 ft land, and < .-n-nti .nine to nin t; H Ixi I. d red oak 
 
 rlandiin; by .' \V l<raiu-h, which o ik i% m>i knn it.") Hrlil, thut linn- - 
 
 don'it or aAbinity. and that if t'u- II-^I.IUK' nf D '<' i> rightly located on the plut< at the termination 
 of the tw. !lih iinr'i.i . in .,! ih. . \ntence of nn\ ti.. .., i:illid fur at the 
 
 : thi- f.iM line of 1, tin n the cxpriMinin in the .'client g'ai.t J.) t-iiid llrit grant to 
 the true inc'i'ion of the ori)cinul ti..i' i alii (1 1) K, us In (he two firtt lino tin -n-n I, M. i.ir :i\ 'I. 
 line of Ihe oricmal did actually fVend; ..i.-l ili:.i ilu li st a<nl seooii-l lines ol the o 1:71 ual i 
 bv rinuc of the fxnrliuu* lliervili uxd, bind thuse iiin-.i.n the thiiUeiilh and fou. u-i tub linet ut" 
 
 V hrre the plaintiff 1 hat not located hit nche.it grant on the pl-t< in the enn;e co-exti inive with the 
 location ol the nnguyjl i-u", he -aninit cive ev nle in.- to \fi-i d Irs |<n-tfiisiiiii< br \on.l the linet and 
 linn'it lie hi. hot i;mnt; but In- is est ipp. d 'i\ that l.><-ation froin idling b-joni! the let- 
 
 ter V, located on Ilie p nt~, Irnm u hence In nni-t run tis (In head o* lltni-nrit * llrnnch, at !:. 
 point the same may lie a-;re- a'olj (o hit Incatiuu of In- ptx-Cen-.ioni, and tin- location b) which the nV- 
 Tendant hn. l.ik. u il 
 
 The plamtifT cannot give any evidence of the 'ines of hit escheat grant, running otherwise than 
 be hat located them *! the plots in the cause us hi, pretensions; Silt hs- is- not p'ee.iidi .1 fro in giuni: 
 nl'ineol any other lines, at the lines ol the original tract, by wa\ of illustration; in! he nm\ uip- 
 ji"H the location of hn |ireleutitnis, to fur as lit can slluw tlnu. they urv locnU-d \\iihin the luuiti of 
 the niiginal tiact 
 
 > n.-i ihe pUce svln-re the ti mini line nf a tr( t ol l.nnl d rininated. the third line thereof, ^i7. 
 ' 1 hs n N N \V ff> ps ( a buin.ded red ojik, then." fctc. mini run tin nninli. r ol perctn expii - d in 
 he grunt, and cannot in it* length be increased or dinnuulicd, unk>, proof is made of the tree caIV 
 r the plac- \>ln .. il 
 
 So the fourth line. M/ " fin n s V." to the head of [Dmarft Brnncn, then," l;c. mint rdn a itr&igbt 
 line to the bead of Hncnnri Krnnch 
 
 i natc plot ol the liu.J. n. di pule, perinittci', under certain circumstance*, to be read in ei- 
 
 I hr cotine ^nd diitnnre expressed in grant -if 'and, must alwnjs be cnn'roled by a call expretted 
 
 :n Ihe t. in.ii a ii.n i.l i hi i n.s. : und the f . lowing eouise and dillanec ttaed ID the L i:.n', \ir. 
 
 'I ps. lo a iniall branch which inaketh the oiru.iril n irin of tli.- said laud," niiitl In- com- 
 
 p'icd stith, as nearly at they can. to strike iln- n- ..'nib .le-ci it;.-il, a, u i \i,ied at th-- time of the ur- 
 
 t\. iiilijict to (In- variation of the compast on thai line 
 
 'Ihe i dnect tin- jury, that IK-- ..ml line of a tract of land, vi/.- " I ln-n N K 150 
 
 pt. u> a bounded led <nk of (In- wnl '\ l.init," (ivein^ ihi- lourti 'nth line iif-.li.it hind, which in-e 
 U-ing lnit,-ihe place win-re it tiKid t'.iild n..t I , pr.s'-i!.; in.i^t terminate ..fi.Wpi IVunv 
 
 ili- li'irinniaw fill ll nl it bemr a mit'i r nf f.\: ( t . ' i- .1 tn t'n- il 
 
 . 
 
 nt>Dal gr..i I, 
 partir -i 
 
 it ; ant did al- 
 tu in<" 
 
 A di nosi inn taken on t! of tbo 
 
 tnal, wu pn milted to be read in cvidenct, due dibgeiiiv having bcvii uted lo obuu> the n-.i. 
 
 ! thr- jury, tli. i ,:nl t'n- run- locali'in ol I) K, liir which the rjectm--nt 
 
 xpp. sir Inlh n, |,i..pi r fi-iini ibc 
 i In- p-uintitra 
 
 5 KIM nl. mi thr plon.or Ut'j ond J straight line (u be 
 
 . 
 
 i r nti) Hud lnch 'hmi '. 
 'I Key,.ii.| as. ',, iTr.iwn Irnm th. lelli r V, m ih. I,, l *(Hinrnr>ri H> 
 
 Ih .1 m.illll. r., alll|.,.|,-h ll,.,,e I in.h ,h I lie M 
 
 |i elm. nt i, brought, ..nil ill to within the line, of III 
 
 tiff* )-: 
 
 ntiff it (ttii|>)>cd fi-nm lio\ving thr true i 
 
 !.) I I'.r hn pn 
 
 ^ at lu prvtCUl him Iruni itvurvutig t,%||at il guntaiuid in !)! pfvtiUMVtt) within " k
 
 OF MARYLAND. 
 
 Richard //. l\foa!c, nine parts by Robert North Moale, nine 1808. 
 parts by Samuel Djoale, nine parts by Handle Ilulse Monle, 
 one part by Thomas Moale, one part by Richard Curson^ 
 Junior, and one other part by Rebecca Russell. The de- 
 fendant, (now appellant,) pleaded not guilty.^ and took de- 
 fence on the plots made and returned in the cause. 
 
 The plaintift; at the trial court, in May 1804, made his 
 claim and pretensions for a tract of land called David's 
 Fancy i resurveyed tor John Moale, on the 1st day of No- 
 vember 1758, as the same is located by him, the plaintift* 
 upon the plots returned in the cause, as per table of courses 
 No. 2, viz. From the letter d, (1) N. 862, E. 65 perches, 
 (2) N. 41|, E. 235 perches to b, (3) N. 25|, W. 86 perch- 
 es to V, (4) N. 86, W. 112^ perches to F, (5) S. 51, W. 
 14, (6) S. 24, W. 5, (7) S. G7, W, 12, (8) S. 10| W. 40, 
 (9) S. 70, W. 4, (10) S. 47, W. G, (11) S. 3.6i, \V. 16., 
 (12) S. 54, W. 21, (13) S. 75, W, 8, (14) S. 18d 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, (2Q) S. 10, E. 18, 
 (21) S. 65, E. 18, (22) S. 14 4 % E. 38, (23) S. 4Q, 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 Edipan{ Zim.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 t 
 then to red 1, then with the black lines, black figures 19, 
 20, red figures 14, 15, 16, 1.7, 18, 19, and then to red Jl t 
 as per table of courses No. 26. Judgment was entere4 
 against the casual ejector for the land called David's Fan? 
 cy, undefended on the plots by the defendant. After the 
 jury were sworn by the issue, the plaintift", 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 II. Moale, one of the lessors in the declarer 
 
 tion, the defendant is also estopped from saying that. the true location is different from the location 
 given by the plaiutifV 
 
 extent ol UK sum location.; to ue from A to a, to r, to lour pti-cnes i * aig r, uie nean i>i tiouara't 
 Branch, and then to J, anil tlint the diTcmhmt was guilty qt' ihe trt .;;!; complained ofwilhui the 
 said pr>-tension, and not guilty as to the residue ot 'the trespass complained of iu Ihe residue of tho 
 land. Hel/l, that there was no uncertainty in the verdict 
 
 A mortcajje of lands to a British subjeot before the revolution, was not thereafter defeated by thft 
 act ol Ciiunica!ioii,biit it win protected uy (lie Britith treaty, and the mortgage property was ftc- 
 Cftx* to be >uld to [i ay the mwrtgii^e debt. (K<,:tJ.J
 
 CAM-> IN THE COVHT <>i M... 
 
 1808. tion mentioned, who demised nine pans of the prom: 
 
 (in forty-eight parts to be divided,) to the plaintiff, had 
 died, and which was not denied. 
 
 1. The first bill of r. ret pt ions. The plaintiff, to make 
 title to the tract called Dnnd's Fancy, read in eudence 
 a certificate of survey of David' a I-'inin/ made for David 
 IVilliam* on the C'Jd of June H>71. and containing 100 
 acres, which certificate recites, that by virtue of a \\; 
 granted unto Robert Jf'ilson for 650 acres, bearing date tlic 
 ITth of June 1671, 100 acres thereof was I unto 
 
 David U'UliamSi by 11 ihon, there was, therefore, laid out 
 for ff'tli'iams 'a parcel of land called Davul's Fining ] ying 
 in Bultimort county, on the N. side of Patapaco river, and 
 on a branch called the Middle Branch, beginning at a 
 bounded locust tree, being the N. E. bounded tree of Da- 
 ri</ Poolers land (a), and running by the land of the said 
 1'oolc E. 65 perches, to a bounded oak, then N. K. l.~>0 
 perches to a bounded red oak of the said Poole's land, then 
 >". N". W. 86 perches to a bounded red oak, then S. \V. 
 to the head of Ifotrard's Branch, then bounding on the 
 said branch, and the said Middle Branch, to the first bound- 
 ed tree, containing and laid out for 100 acres more or 
 The plaintiff also offered in evidence a patent for the land 
 called David 1 s Fancy, granted to If'iHimns on the 1st of 
 May 1672. The courses, &c. in the patent correspondii.g 
 vith those in the certificate, except in the patent the 6'. ft'. 
 course, last above mentioned, is described to run %> S. AN". 
 and by W. to the head of Howard's Branch,*' &c. He 
 also offered evidence, that tt'illiuins departed tliis life, in- 
 c, and without heirs. He also produced and read to 
 the jury, a warrant of escheat issued to John Aluale, set- 
 ting forth that there was escheat to the Lord Proprietary, 
 a tract of land called David's Ftinry, hing in /iallimorc 
 county, on the W. side of the Middle Branch, originally 
 granted on the 1st of May Iti7-, t< Dur'u! Hitlia/ 
 
 That on the ];>th of Maich 17'I%a certaiu 
 Tlioinas Cromirilf, by his petition, setting forth that he 
 was seized in fee thereof, obtained a special warrant to re- 
 survey it, and a certificate thereof was returned, by which 
 it appeared that there were 83 acres of surplus land in- 
 cluded, for which Cromwell never compounded nor ued 
 out grant of confirmation thereon, contrary to (sundry 
 CJ Called "Upton Court."
 
 OF MARYLAND. 258 
 
 of his Lordship's proclamations for that purpose publish- 1R08. 
 d. That apprehending his Lordship's rights had not been 
 complied with, Mua/c, 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 vacan- 
 cy, 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 Jf'illiums to one John Athrine, who had pretended a 
 right to the land, nor to any other person, nor that ever he 
 willed ths 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 de- 
 sirous to purchase his Lordship's right thereof, be it es- 
 cheat 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 DavuPs Fancy, ac- 
 cording to its ancient metes and bounds, with its surplus- 
 age, and by his outlines adding what vacant land he could 
 find to the same contiguous, whether cultivated or other- 
 wise, 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 tjie surveyor, lying in the 
 county aforesaid, on the E, side of the middle branch of 
 Palapsco river, beginning at a locust now bounded at or very 
 near to the place where stood a bounded locust, the origi- 
 nal beginning tree of DaviiPs 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 ori- 
 ginal survey to run by the land of the said Poole, E. Go 
 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 express-
 
 CASES IN THE COURT OP APPEAL- 
 ISO?, ed, to run N. E. 150 perches to a bounded red oak of the 
 
 /'niilt'a land, and the certificate of the said Poolers 
 land mentioning to run that course to a bounded red oak* 
 standing by the side of the said N. "NV. branch, which oak 
 is not known, thence N. N. \V. 86 perches, b. 83 30' 
 AN*. 133 perches, to the head of Howard's Branch, it be- 
 ing expressed to run S. "U. to the head of Howard's Brunch, 
 thence bounding on the said branch, and the aforesaid Middle 
 "Branch, to the first bounded tree, as mentioned in the cer- 
 tificate of the original survey, as follows, viz. S. by W, 16 
 ps. S. -41, E. 16 ps. N. 83, AY*. 24 ps. S. AN*. -JO ps. N. 
 73, AV. 10 ps. S. 22, A\ . -24 ps. AN . 9 ps. S. SO, AV. 2 
 ps. N. 7-4. AV. 10 ps. still bounding on Howard's Branch 
 to the Middle Branch, thence S. 38, AV. 16 ps. S. 11, AV. 
 15 ps. S. 2, E. 12 ps. S. 12, K. 12 ps. S. 70, E. 12 ps. S. 
 1 :. I.. 38 ps. S. 37, E. 28 ps. still bounding on the Mid- 
 dle Branch, and thence by a straight line, bounding on the 
 branch, to the bt ontaining and laid out for 257" 
 
 acres more or k-^, to be held," &c. "by the name of Di- 
 rid's Fancy.''' He also read in evidence the grant issued 
 thereon to Richard A/oale, dated the '.)th of .September 
 J750, which grant recites, that Charles Croxull, (guardian 
 and next friend to Richard Moule, an infant, under the 
 age of twenty-one years,) did set forth, that a certain John 
 jl/ofl/f, deceased, father to Jtichanl, did heretofore s^t 
 forth that there \\a.i escheat, &x. (as in the recital in tta 
 special warrant granted to Juhn A/cw/f,) that a warrant i-- 
 sued, was renewed, and a resurvey made, and certificate 
 thereof returned, by which it appeared, &c. That before 
 JohnMoalc obtained a grant of confirmation for the same, 
 he died, but before bia death he made his last will a. il 
 tament, in which was the following bequest: "Item. I 
 :/i\r arid bequeath unto my infant son, to be christened by 
 the name of Richard, all that tract of land I bought of 
 Jacob Giles, named I'jilon ('uurt, and also the land ad- 
 joining 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 yt bcini: issued out, to 
 him my said beloved infant son, and ho l.eiin lawfully be- 
 gotten, from him ami their bodies, for evenm-re; but if 
 either of my aforesaid sons >hould die without such hcirt 
 -aid, then it is my will, that the laud which I have 
 
 dr\Urd the dead son, heir less, shall go to the lir 
 ing son, to be held of him, and his lawful Lcirs, from ge-
 
 01? MARYLAK& 1 s 
 
 neration to generation as aforesaid." Croxalt, therefore, 1808. 
 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, irt 
 consideration thereof, arid other the premises, &c. thft 
 " Lord proprietary did give, grant and confirm, unto him, 
 " the said Richard Moale, and the heirs of his body lawful- 
 " ly begotten, for ever, agreeably to the bequest aforesaid^ 
 '* all that the aforesaid tract or parcel of escheat land re- 
 ** surveyed, and still called David's Fancy lying," &c. as 
 described in the certificate herein before mentioned ' k To 
 " have and hold the same unto him the said Richard Mo ale t 
 '* 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 Mdale, 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 law- 
 fully begotten from his and their bodies, for ever more, sundry 
 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 llth of April 1783, from Richard Mode, to 
 James Croxall, reciting that Moale was seized of an es- 
 tate, in fee tail, in and of a tract of land called David's 
 Fancy, (saving and excepting that part thereof before con- 
 veyed 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 de- 
 stroy the entail, and to grant, convey and transfer to Crox- 
 all, 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 s-eized 
 thereof in fee simple, might reconvey and assure unto 
 Moalc, 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, wit- 
 nessed, 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
 
 CASKS IN THE COURT OF APPEALS 
 
 1808. and excepting as afon-saul.) in the usual form. He also 
 *-> -J re*d in evidence a deed of indenture, dated the 12th of 
 
 ___ _j 
 
 April 17H3, from James Croxall to Richnrd Ajoulc, for thr 
 tract called Dai-itl's Fancy, exo-pting that part *old by 
 Moult to Man/ Tribokt(n). He al.*o olferrd in evidence, 
 that Richard Aloale died sometime in the year 1786. with- 
 out issue of his body lawfully begotten, having iii-t duly 
 made and executed his last will and testament in writing, 
 Jated the 22 d of February 1780, whereby he de\ised all 
 that part of the tract of land called David's Fancy, for 
 which this suit is brought, to his brother John Moalc, in 
 fee simple. That John Mode, the devisor first named, 
 left, at the time of his death, two sons, to wit, John Moalf } 
 his eldest son and heir at law, and Hi chard Monk, the pa- 
 tentee before named. That John Aloale, the devi-oi- l,it 
 named, died in the year 17P7, having first duly made his 
 last will and testament, dated the 20th of July 17'J7, 
 YI hereby he devised all that part of Daviti's Fancy, for 
 which this suit is brought, to his sons7o/w Jfoalc. Mil-hard 
 Moale, Robert North Afnalc, San.'l Moule, Gears.'*- ffrtuh- 
 mgton AJoa/e, and Ranille Hulse. fljoalc, their heirs and as- 
 signs, to be equally divided between them, shrae and share 
 alike, as tenants in common. lie also gave in evidence, 
 that George Washington Moale, the devisee mentioned in 
 the last mentioned will of John Moalt the younger, died 
 after his father John Moale % in the year 1797, intes- 
 unmarried, and without a child. That the lessors ol 
 plaintiff, to wit, John Moale, Richard //. Rtoale, Robert 
 North .)fo<dc, Sanutd Moalc, Randlr. JInhr. Moalc, 77i0- 
 mas Afortle, Rebecca Russell, and Elizabeth, wife to Rich- 
 ard Curson, in the declaration mentioned, are the children 
 and the only children, of John Aloale, the last nam-d d.-- 
 
 ; that Richard Moulc, one of the lessors of the plain- 
 tiff, died since the brin^in^ if t'ui- <uit, andduring the pi-n- 
 dency thereof, leaving issue now in full life. He a!-. 
 
 1 evidence, that the true location of the land called 
 David'* Fancy, granted to David It'illiamam 1G72, is, as 
 he hath located the same upon the plots returned in this 
 
 fa} The defendant's attornics. at this stapc of the trial, made 
 their objections to the print t< but as the bill of 
 
 exceptions conUunol the whole evidence of title adduced by the 
 parties, we have adopted the mode pursued in the bill of excep- 
 tions.
 
 'OF MA&YLAND. 
 
 cause; and also that the true location of the land called 1808. 
 David's Fancy, granted to ftichard 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 1 673, 
 \vherebyitappearsthatthere was surveyed "a parcel of 
 land lying in Baltimore county, on the N side of Palapsco 
 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, call- 
 ed Salisbury Plaine, and running with the line of the said 
 land N W and by N 38 ps. to a bounded Jrickory 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 hick- 
 ory 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 pa. 
 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 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, thenN 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 icd 
 oak in the line of the land of Thomas Cole, then \V 75 
 ps. to a bounded oak of the said Cole's land, then by 
 the said land N N E 275 pa. to another bounded oak, then 
 E 05 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 1 762, and grant of Lun's Lott Enlarged* 
 dated the 25th of March 1763, surveyed for and granted 
 to Cornelius Howard, and Ititfh his wife, and containing 
 414 acres, more or less, being in virtue of a special war- 
 rant to resurvey a tract of land called Lun's Loft; 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 
 VOL. n. 33
 
 CASES IN THE COURT OF APPEALS 
 
 Lun, the patentee of Lwfi Lott, and also the heir at latf 
 of Cornelius Howard, and 7?//i lii?. wife, the patent' 
 Luii'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 
 tnade title to the lands for which the defendant hath taken 
 defence in this causej nor any part thereof, and cannot re- 
 cover in this action. 
 
 Pidgely, for the Defendant, contended, that the grant 
 to Richard Moale of the 29th of September 1750, for fia- 
 viirs Fancy, vested in him an estate tail, and that upon 
 his death, without issue, the reversiori is in the state of 
 Maryland, standing in the place 1 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, c/i. 23. Pigott, 85, S7, 88, 89. Neal vs. WiltUnsr, 
 1 mis. 275. Pool vs. Neilhar.i, }',lr. 149. Anon. Ai//, 
 132. 18 Jin. Mr. tit. Common Recovery, 233, ;;/. 9. 5 
 Bac. Mr. tit. Prerogative, (E. 5.) 
 
 Shaajf, on the same side, cited the act of assembly of 
 October 1780, ch. 45. Owings vs Nonoood>s Lessee, 
 (ante 96. j Allen vs. Stetuart and Patten, (a). Laws 
 
 CaJ In the cose of Allen vs. Stewart and fallen, in the court of 
 chancery, at May term 1799, ihe bill was filed on the 
 gust 1798, and it was admitted, that the l:iml mentioned in the bill 
 was mortgaged to .JUen by I'atttn on the 20th of May 1771, to se- 
 cure the payment of 142 6 sterling money, with interest there- 
 on on the 20th of May 1773. It was admitted that .illfn was a sub- 
 ject of the King of Great Britain, residing 1 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 intercut on 
 the mortgage debt. 
 
 Ht!sox, Chancellor. It appears, that under the rircum 
 of this case, the chancellor is under no necessity of deciding, or 
 submitting- to the general court, the cnicstion, as the complainant 
 "itish subject, whether or not the interest of the complainant, 
 in the mortgaged property mentioned in the bill, wa> <LK..U-d by 
 the revolution in Amtrica, and the confiscntion act of this state; and 
 tbkt the complainant is entitled to have his debt paid by the de- 
 fendant, or discharged frojn a sale of the property. J)tm-n/, that 
 unless the mortgaged debt, with interest thereon (except from the 
 4th of July 1776 to the 3d of September 17H>,) until paid, sh:ill be 
 paid on the 9th of November next, the property in the bill mention- 
 ed shall be sold, &c 
 
 J '>/ and Sfiaaff, for the ComplaiiuiA
 
 Harper, in reply, cited TfaZ/ vs. Gitling's Lessee 
 1809). Kelly's Lessee vs. Greenfield. Russell's Lessee vs^ 
 Baker. Gitting's Jim. Lessee vs. //a//, and. Owings o 
 
 Norwood's Lessee. 
 
 DONE, J. delivered the opinion of the court (b). 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 par- 
 ties having a reversionary interest expectant on the deter- 
 mination of an estate tail, 
 
 The jura regalia, as attached to the person of the kino- 
 in England, never did attach to the lord proprietary of 
 Mary land. 
 
 (a} 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. la 1769, one Semple mortgaged lands to lMwson t 
 u JJritish subject, and being nojthing more than to secure the pay- 
 ment of a debt, it was protected by the treaty. The attorney gene- 
 ral was m:ule 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. 
 
 (bj Cftasr, Ch. J. did not sit, b^is sister beiiig interested lathe 
 in question^ 
 
 OF MARYLAND, 
 
 t% The Attorney Genera!, (a). Kelly's Lessee vs. Grwn- 1808. 
 fiehl, 2 Hurr. <$ M'Hen. 121. RusselPs Lessee vs. Baker* 
 
 ^ 
 
 1 //arr. 4- Johns. 71. Gittjng'a jun. Lessee vs. //ou 
 fa/i/e 112.) 5 J?ac. .tf&r. tit. Prerogative, (E. 3.) Com. 
 /%. tit. Estates, (B. 31.) Statutes 34 /fcn. VIII, cA. 20. 
 #c/s o/* assembly of November 1787, e/i. 9, and 1785, c/u 
 87. 7% #fl/e rs. Stump, el af. 2 #arr. <$ Jf<//en. 174. 
 Laidler vs. Young's Lessee, (ante 69.) 
 
 Martin, (Attorney General,) Key, and IP. Dorsey, for 
 the Plaintiff^ cited Culvert's Lessee vs. Eden, et al. 4 
 JIarr. $ APHen. 279. Ad of assembly of Nov. 1782, ch. 
 23. /toe v$. Pegge, 1 7*. /?. 758, (note}. Armstrong 
 vs. Pe.irse, et al. 3 Burr. 1900. Goodlitle vs. Jones, T 
 T. R. 46, per tfshhurst, J. Doe u.y. Wharton fy Dlxon, 8 
 7 T . 7?. 2. GzV6. on 'Uses fy Trusts, 83, 85, 86. 5 Buc t 
 Mr. tit, Prerogative,. (E. 3). Qwings vs. Norwood'* 
 Lessee, (ante 96.)
 
 CASES IN THE COURT OF APPEALS 
 
 186fi The lord proprietary held the dominion and property of 
 
 the soil, which he could sell and dispose of in ti. 
 tianner a* any other person, and subject to the same bene- 
 ficiary le^al and equitable right.*, as in the hands of any 
 other person; and on an equitable interest being obtained, 
 agreeably to the rules of his land office, by arn j 
 taking out a warrant, returning a certificate of smve\ . 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, 1 
 versionary interest in the lands in question would lia\c 
 been destroyed by the deed made by Richard Moale, the 
 grantee in tail, under the operation ot the act of 17S2, as 
 effectually as the reversionary right of any citi/.en of Ma- 
 ryland. 
 
 The question then occurs, whether the case >s materially 
 altered by the proprietary's rights passing into the hands 
 of the state? 
 
 On this view of the subject, a doubt might arise, whe- 
 ther 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 pur- 
 chase from the proprietary. 
 
 ]Jy the last will of John jl/oa/e, the elder, his interest in, 
 the lauds passed agreeably to the di>pn:>iti<>n made by the 
 said will, and the deed, made in 17H3, by JticharU Moafr, 
 the devisee, and the patentee of the land, was (..in potent 
 to bar and extinguish the reversionary interest of the state. 
 
 As these points have been elaborately and ingeniously ar- 
 gued by the learned counsel concerned, the court have 
 thought proper thus shortly to notice them, and ev 
 their ideas relative to them. 
 
 But let us suppose that the opinion of the court, so f;ir, 
 M not well founded, every objection to the plaintitTs title, 
 arising from any particular prerogatives or privileges in thl>
 
 OF MARYLAND. 
 
 proprietary or the state, which would protect their rights 1808. 
 from being affected in the same manner as those of citizens, v 
 
 Hownrl 
 
 is, in the opinion of the court, completely removed by the v > 
 
 operation of the grant of I AM? a 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, ;^ut 
 on the contrary the presumption is strong that it did not 
 occur until nearly about the time of the obteution of tire 
 escheat warrant. 
 
 By the grant of Lun's Lot Enlarged, all the reversiona- 
 ry interest of the proprietary in David's Fancy, so far as 
 JAM'S Lot Enlarged interferes with and includes any part 
 of David's Fancy, passes to a citizen, and of course is lia- 
 ble to be operated upon, and barred, in virtue of the act of 
 assembly of 1782, by the deed from Moaie to Croxall in 
 1783. 
 
 For these reasons the court refuse to give the opinion 
 and direction to the jury, which is prayed by the defen- 
 dant's counsel. The defendant excepted, (a.) 
 
 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 Yale on the. 
 12th of March 1667, and a grant thereon issued to David 
 Poole on the 2-d of August 3,668, by which it appears tha^ 
 there was surveyed "a parcel of land called Upton Court, 
 
 (~a) D. Dittany, Esquire's opinion on the, following case stated. 
 A. was seized of a certain tract of land, under a title derived le- 
 gaily from the original grantee. B obtained a common warrant of 
 survey, and under this warrant, a survey was made, which includ- 
 ed part of the land that had before been granted to A, and B, on 
 the certificate returned by the surveyor, obtained a patent. Af- 
 terwards A, who was seized as aforesaid, died without heirs, and 
 without having conveyed, or disposed of his title, in consequence 
 \vhereof the land, of which A died seized, became escheat. After- 
 va/ds C obtained a warrant on live, escheat, and as a part of the 
 land, whereof A died seized, was included in the survey of the grant 
 to 15, 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 1 
 obtained, which he was not entitled to when he obtained ti.etvou 
 a patent, and as at the time when the patent was obtained by B, 
 the title was in A under a prior grunt, I am of opinion that B can- 
 not legally claim any title to the fart included iu the patent to A r 
 
 Bwi'-il !>' 
 
 August 13, 1783,
 
 CASES IN THE COURT OF APPEALS 
 
 lyin* ' Baltimore county, cm the N side of Patcrpsco 
 rivi . opposite tin? land of llngh A'j/J.vn/, beginning at ;-. 
 bounded rod oak standing on the southernmost side of a 
 point of land formerly called fl'/iflttune Point, and from 
 the said oak bounding on the said river by aline drawn N 
 Vf ami by N 40 perches, then N ^V and by \\ 40 
 perches, and from the end of the N W and bv W line 
 by a line drawn W 100 parches, bounded on the W by 
 a line drawn W N \V .30 perches, then N W 100 
 pcrchc?, to a small creek, then over the said creek by a 
 line drawn W and by S SO perches, then W S W 45 
 perches, then S W 80 perches to the mouth of another 
 -mall creek, then over the said creek S and by W K> 
 perches, then S Wand by S 55 pe rc/ies to a point which 
 inaketli the mouth of a branch called the Middle Hranch, 
 then bounding on the said branch by a line druivn X ll r 
 and by N ISO perches to a marked oak opposite a smnM 
 island, and from the said oak A r E 50 perches to a smalt 
 branch which maketh the outward narrows of the saiil 
 laud, then E 65 perches^ bounded on the E by a line 
 drawn N E 150 perchr.s to a bounded red oak slant/in^ 
 fry the N fT b)(inch, tl^en E. S E 50 perches, then F. 
 N E 1-0 perches, then E S E 44 perches, then S S 
 F. 100 perches to a small cove, then over the .said cove 
 l>v a line dra\\u S E 100 perches, to a point called The. 
 Sandy Point, then S .-; E 43 perches to another marked 
 oak on "Whetstone Point, and from tLc said oak to the 
 first bounded tree, containing 500 acres of laud more or 
 less." He also gave in evidence the plots and locations in 
 ih'H cause, and the admission of the plaintitt'and defendant, 
 that the eleventh line of Upton Court terminated at the 
 letter black II on the plots. He also gave in evidence, 
 that the twelfth line of Uplon Court terminated at the 
 black letter Aon the plots; and further gave in evidence 
 to the jury that the beginning o Duv til's Fancy, the ori- 
 ginal, was at the letter A; and also that the beginning of 
 David's Fancy, the I'M heat HI 1738, \\as at the letter A. 
 The plaintiff then prayed the opinion of the court, and 
 their direction to the jury, that if they find from the evi- 
 dence in the cau^e that the tirrlfth tine of ('plon Court ter- 
 minated at the letter A, and that the beginning of Daiitf* 
 /W/, the original, and David's Fancy, >N waa 
 
 at Ce oauie place, that then the escheat certificate and ya-
 
 1 OF MARYLAND, 
 
 tent of David's Fancy, granted to Richard Moah in 1 750, 1 808. 
 oo by operation of law relate to the original tract called 
 David's Fancy, patented in 1G72; and that the expressi- 
 ons 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 tivo first lines 
 thereof, so far as the said lines extend; ami that the first 
 and second lines of the original David's Fancy, do by vir- 
 tue of the expressions therein tfsecl, bind the said lines to 
 run with the 13th and 14/A lines of Upton Court. 
 
 Shaajf and Harper, for the Defendant, referred to Dor* 
 sey's Lessee vs. Hammond, \ Harr. $ Johns. 190. Dar- 
 iialPs Lessee vs. Goodtoin, 1 Harr. fy Johns. 282. Helm's 
 Lessee vs. Howard, 2 Harr. fy fahen. 57. Hnmmond',4 
 Lessee vs. Norris, (ante ISO:) and JKyger vs. Airkpat* 
 rick, 1 Harr. fy Johns. 298; 
 
 DONE, J. delivered the opinion of the court. Three 
 propositions have been stated by the prayer of the plain- 
 tiffs counsel^ for the opinion of the court, and their direc- 
 tion to the jury, 
 
 1st. That the escheat certificate arid 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. 
 
 dly. 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 
 
 Sdly. 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 linr.5 
 f Upton Court. 
 
 On the first point, the court are of opinion that the es- 
 cheat certificate and patent of David's Fancy do, by ope- 
 ration of law, relate to the original tract called David'9 
 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 beea contended br the defendant'* counsel, that the 
 
 *
 
 CASKS IN" THE COUftf OF APPEALS 
 
 1808. court arc precluded from acting upon them, by (he decision 
 of il.r court of appeals in tlic case of Dorset's 1. 
 I/unnnonil, anil that by the rule laid down by that decision, 
 t!i--e are to be considered as questions of location, and 
 iuu*t be left to the determination of the jury. 
 
 This court, let their pi i\ ate opinions be as they may, 
 will al\\avs 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 >!' grants by the decision of the court of 4p- 
 }>e;ils in I)orsry vs. Hammond, and how far the rule and 
 principle thereby adopted may operate to preclude uncer- 
 tainty of decision, is not for us to consider. 
 
 The question then arises, whether the court are.preclud- 
 cd by that determination from giving their opinion on the 
 on now before them? and we think that we are not 
 < i-luded; but that the present question rests on grounds 
 and principles entirely distinct from that case, and Jlelms 
 '! -'I'-drtl, which has been cited to the court. 
 
 In JJorxcy'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 bind- 
 ing expressions, which were dropped in those succeeding, 
 then there were; distinct 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. IJotvard is 
 founded on the same principle. In that case all the ex- 
 :iins could not be gratified; there were two distinct 
 and different courses, one of which must be pursued, and 
 the other i Therefore, the court said, it must be 
 
 left to the jury as a matter of location, to determine which 
 must be adopted, and which i ejected. 
 
 In the j. -cthe court are of opinion, that no 
 
 doubt or ambiguity appears. Abstractly conpii' 
 \prensions are unquestionably binding, and the court 
 of appeals have so far concurred with this court
 
 OF MARYLAND. 265 
 
 that we are competent to determine where expressions are 1808. 
 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 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 thir- 
 teenth line of Upton Court. But the court think, that 
 they are not restricted by the decision in Dorsey and Ham- 
 mond, from giving their opinion hypothetically in the pre- 
 sent case, (which they believe to be strictly within the rule 
 established in Dorsey fy Hammond,) that if the jury should 
 be satisfied from the evidence, that the beginning of Da- 
 vid'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 live first 
 line of David 1 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 
 grant do, by operation of law, bind the said escheat land 
 to the true location of the original tract called David' 9 
 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 vir- 
 tue 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, sur- 
 veyed for John Moale on the 1st of November 1738, dif- 
 ferent from the land called David's Fancy, surveyed for 
 David Williams on the 22d of June 16n. and hath not 
 ou the plots located those lands in the same way, the 
 VOL. ii. 34
 
 CASKS IN THE conrr OF APPF 0*8 
 
 1808. plaintiff shall not be permitted to give any evidence to the 
 jury, tliat 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 Fan- 
 cy, -urvey.'d for Jo!m Muale. He further praved the opi- 
 nion of the court, and their direction to the jury, that as 
 the plaintiff hath in this cause located the two first line* 
 of Davids Fancy, surveyed for John Moale the 1st of No- 
 vember 1738, runninsj 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. 
 
 Shanjf and Harper, for the Defendant, contended that 
 the plaintiff wight not to give proof different from his al- 
 legations. They cited Hammond vs. Norris, (ante 
 
 Martin, (Attorney General,) and An/, for the Plaintiff, 
 cited Carroll el al. Lessee vs. Norwood, \ Ilarr. ($ Johns* 
 167. (*ray cf ii.c. Lessee vs. rfmos, in the General Court 
 at October term 1796, where the plaintiff located his pre- 
 ten-iuns three ways, neither of which the jury found, al- 
 though their finding was in favour of the plaintift', and in- 
 cluded 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. Darnull's Lcasrc 
 vs. Goodwin, 1 Harr. 4* Johns. 28C. Hicks vs. Scott, in 
 the General Court, on the E. S. fticliolson vs. Ilcmalfy, 
 3 Harr. <$ WHcn. 409, where dotted lines were made on 
 plots by the jury, without objection. Kirkpatrich vs. Ky- 
 ger, 1 Harr. fy Johns. 298. 
 
 DONE, J. delivered the opinion of the court. The court 
 are of opinion, that as the plaintiff has not located his pre- 
 tensions co-extensive with the location of David's Fancy. 
 tlte original, survpj.nl in 1G71, he cannot be permitted to 
 ^ive evidence to the jury to extend his pn-U-ii-i'in- beyond 
 the lines and limits which he h:i- givm to the tract of land 
 called David's Fancy, under the escheat grant to John 
 in 17.~>S, but is estopped by that location from going 
 beyond the black letter V, from whence he inubt run to the
 
 OF MARYLAND. 26? 
 
 head of Howard's Branch, at whatever point the jury may 1808. 
 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 Moalc the 1st ot 
 November 1738, running otherwise than as they are locat- 
 ed from the black letter A on the plots, with the black 
 broken and dotted lines No I and NO. 2, to the black let- 
 ter b, as the location of his pretensions; but that the plain- 
 tiff is not precluded from giving evidenc^ 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 Hue 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 or diminished, unless proof is made 
 of the tree called for, or the place where it stood. 
 
 DOXK, J. The court Direct the jury according to tha 
 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 let- 
 ter 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 Da- 
 vid's Fancy, the original, as found by the jury. 
 
 DONE, J. The Court dp not think the last prayer is em- 
 braced 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
 
 C A>K? IN 1 HE COURT OF APPEALS 
 
 1808. line to the head of the branch. That the course in the cer- 
 tificate, and the course located, is but one line. 
 
 6. The thirJbill of exertions. The defendant produced 
 and swore Zachuriak Maccubbin, as a \s itne~s to the jurv , to 
 prove, and who did prove, that Itlc/iurd Moulr, under whom, 
 the lessors of the plaintiff make title, and Joint J^ILST ll<nr- 
 <m/, tlie defendant in this cause, emplnved <> to 
 
 run the tract of land called David's /I///'-//, that they both 
 attended at times during the survey, and that on said run- 
 ning, the fourth line of the land was run course and dis- 
 tance, by and with the leased lands of Mnlt\ to a point 
 on JIuH-urd'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 loca- 
 tion of that line. The plaintirt'then produced to Muccubiln 
 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 
 JJ/o/f, on the running so made; that the saint; now pro- 
 duced 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 Mucr.ubbiH, that 
 after the same rupning he also made out a plot for the de- 
 fendant. He then oR'ered to read in evidence the plot so 
 made out by Maccubbin for Muule. The defendant fur- 
 ther proved by ^uccubbin, that the corrected linen on the 
 plot were never run on the ground, and that the plot \\as 
 made out after the survey, at the ins'ance and dii* 
 of Moulc, and that the corrected lines of the plot were 
 drawn upon the plot at the sole direction of Moalr, with- 
 out the knowledge, and in the absence of the defendant. 
 $Aaccubbi)i further proved, that he has no recollection 
 whether he did or did not run any of the lines of l'/>!ii 
 Court, which are laid down on the plot, and that the whole 
 plot, and all the explanations, wen 1 made in the office of 
 Macrvbbin, in the ab-ence of the defendant; and that 
 Moult, during the time he was employed in making the 
 plot and explunati. n-, frequently was present, and 
 him directions about the woik. Mm cnbliin further prov- 
 ed, that the four lines terminating at black loiter C, vie re 
 never run on the ground, and that those lines nevci 
 laid down on the plot by the direction or with the know 
 ledge of the defendant, or in hb presence; but that the
 
 OF MARYLAND. 86$ 
 
 waters and branches, designated on the plot, were made 1808. 
 by actual survey. The defendant then objected to the 
 reading the plot and explanations to the jury. 
 
 Shaaff, for the Defendant, cited Jarrett vs. West, I 
 ffarr. Johns. 501. 
 
 DONE, J. The court are of opinion, that as evidence 
 lias 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 evi- 
 dence originally had it been offered, but as the defendant 
 had offered evidence by the witness, who made the survey, 
 to show liichurd Moale did not claim^ it ia 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 tne jury. That the twelfth line of 
 Upton Court must run as nearly as possible according to 
 the course and distance thereof, as expressed in tbe origi- 
 nal certificatfi 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 controled by a call expressed in the same; 
 and that in this case the course and distance must be com- 
 plied with, as nearly as they can, to strike the branch de- 
 scribed to be at the end ot 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 varia- 
 tion 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, fur Thomas 
 Cromwell, in virtue of a special warrant of rcsurvev'tohim 
 gran ted, to resqrvey the tract called Dmid's Fancy, grant-
 
 70 CASES IN THE COURT OF APPEALS 
 
 IS cd to David Williams on <hc 1st of May 1672, for 100 
 
 acre-;,- whereby was re^urvevvd for Cronitcrll, the said hind, 
 with contiguous vacancy added, &C. Hying on the N sidu 
 offatapsco river, and on the W side of the Middle Branch, 
 beginning at a bounded locust stump standing near the 
 said bianch, said stump being a boundary of a parcel o{ 
 land called I'pt^n Court, and running thence with said land 
 65 perches, still with said land N K 250 perches, to the; 
 > \V branch, then N N "VV 86 perches, thence S "NV by 
 W 70 perches, thence W N \Y 34 perches, to a bounded 
 white oak of John Howard's land, called Timber Neck t 
 standing 5n a small fork descending into the head of How- 
 ard's Branch, thence with the said land S \V by 
 W .i4 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 W CO pen lies, stilt 
 with said branch S 56 W 70 perches, still with said 
 branch S 50 W 60 perches to the Middle Branch, thenca 
 S 20 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 Pa- 
 tapsco river, and that no land has ever been taken up south- 
 ward of the black letter 6, and below the red letter L, ex- 
 cept 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 
 , MII \c\cd tii JJurid lli/luiiim on the 22d of June 
 1671, must be teiminated at the end of the 150 perches 
 fiom the beginning, from whence the third line of that tract 
 ir.iM run according to its course and distance, as express- 
 ed in the original certificate and patent thereof, and thQ 
 fi.vrih Hnr from the end of the third line, to the head of 
 * 4 branch. 
 
 Hiirptr, for the Defendant, r'.trd Tliompson el al. Lessee 
 
 D5. Jlrotcn, 1 Harr. \ John*. ;>.>5. Dallas rs. Stumbury, 
 
 (in the General Court May 1801,) Hiumnond vs. Mton, 
 
 -.) Owing* ft. AV//I/, (Mi/May 1796.) 
 
 UrMcn'vs. Gurretson, (Ibid October 1797.) 
 
 AVy, contra, cited Helm'* Laaec v Howard.
 
 OF MARYLAND. 
 
 DONE, J. This court are bound by the decision in Dor- 1808. 
 sty's Lessee vs. Hammond, which must govern in deciding 
 upon the prayer now submitted. The court are of opini- 
 on, that the termination of the second line of David's Fan- 
 cy, surveyed for David ff illiams on the 22dofJune 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 
 exceptcd. 
 
 9. The fifth bill of exceptions. The plaintiff then gave 
 ih evidence, that the twelfth line of Upton Court terminat- 
 ed at the lei ter 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 
 a't the letter black A; and that the escheat land called Da- 
 vid's Fancy, in 1750, granted to Richard Moale, 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 Fan- 
 cy, 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 Pa- 
 tapsco 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 ad- 
 missions of the defendant, and the opinion of the court, 
 that if the tree at the end of the third line of David's Fan" 
 cy, the original, therein called for, was lost, and no evi- 
 dence 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 lines of 
 Upton Court, and the first and second lines of David's 
 Fancy, the original, are truly located on the plots from let- 
 ter black A, with the inner black lines 1 and 2, to little 
 black , by the side of Ihe N W branch of Patapsco ri-
 
 873 (' ^ES IN' THE COURT OF APPEALS 
 
 1808. ver. The defendant then prayed the opinion of the court, 
 and their direction to the jurv, tliat if they are of opinion 
 from the evidence, that the -in-mal bf^iunin; tree of /)- 
 Fancy, sun eyed fur John Maalc on the 1st of No- 
 vember 17-'R. 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 there- 
 on issued, was run ns described on the plots bv the black 
 broken line numbered with the black figure 1; anil that the 
 second line of the land, as expressed in the certificate and 
 patent thereof, and run by the surveyor, run to the NT W 
 branch of Pafi/f^rn river, at the black letter b on the plots; 
 and that the third line of the land, as described in the cer- 
 tificate and patent run by the surveyor, run to the black 
 letter V on the plots and that the fourth line of the land 
 a< run by the Purveyor, and described by the certificate and 
 patent thereon, run to the head of Hr>tt'(ir,r Branch, at 
 the hla< k letter /', and from thence with the meanders of 
 ffoirnr<r.s branch, and to (he be;jnn!:-.-.t, that then the cer- 
 tificate, and the patent thereon issued, do not in law ope- 
 rate to pass any land which mav be included wiihin the 
 original jrrant of Dnri<r>i Fancy, surveyed for David JJ'il- 
 limns on the ,?d of June Ifi71, except the same mav be 
 n'-o included within the metes and bounds of Davids Fan- 
 in-eyed on the Kt ->f Vovember 1738, as above de- 
 scribed: and that Drinks Faun/, surveyed the 1st of No- 
 vember 173R, does not. bv leiral operation, convey all the 
 land contained within the original certificate and patent of 
 f)aviil\ Fmin/, surveyed on the -2Cd of June Ifi71, unless 
 tl-,c T. articular metes and bounds of David?* Fann/. sur- 
 veyed the 1st of November 1738, shall also include the 
 same. 
 
 DONE, J. Thi point has hern decided by this court in 
 Gifliii','* Jim'*. I< " vs. UnlL The court therefore re - 
 fuse to L'ive the opinion and direction pnned for by the 
 defendants coun-cl. The def ndant excepted. 
 
 10. Tip slrfh fill! of e.rrrfitinnn. The plaintiff ofTen-d 
 deposition of ff'indrt f.<nrrmcf, taken under 
 The plaintiff* having prov- 
 ed liv .'Jinir f.utrrriirr. a \\itne-s s\vorn in court, that her 
 ' ' . went on hoard the Notftk 
 
 ..\>\v.\\ Jicugle, to go to Korjolk, about three
 
 OF MARYLAND. 273 
 
 Weekg ago/a, j He first said that he intended to go to 1808 
 Alexandria, but tlic morning lie left Jlallimorc, he inform- 
 ed the witness he would go to Xorfolk. That when he 
 departed, he said ho should sfay 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. Tire plain- 
 tiiV also proved by another witness, John F. Holland, that 
 about the 15th of May 1804, he settled with Jl'inde.l Law- 
 rence, when he informed the witness that he owed some 
 money; that he must go away if the witness did not sup- 
 ply him. The witness told him that he would, but that 
 he lost so much time by attending as a witness at Anna- 
 polis, 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 Law- 
 rence had been in his brother's employ for 2 or 3 years 
 previous. That it is the general reputation of the neigh- 
 bourhood, that he has loft 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 
 wit'.ies?, 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 
 ab;mt 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 work- 
 ed with him. The defendant objected to the reading of 
 the deposition in evidence to the jury. 
 
 DOVE, J. The court are of opinion, that the deposition 
 of Jrindel Lawrence is competent and legal evidence to be 
 read to the jury. 
 
 This is different from the case of Darnall's Lessee vs. 
 GooJwin. 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 the reach 
 of the process of the court. The defendant excepted. 
 
 (~aj The trial commenced on the 5th of June 1804. 
 VOL. n. So
 
 CASKS IN THK COURT OF APPEALS 
 
 1808 11. 77ie seventh bill of exceptions. The plaintiff then 
 
 prayed the opinion of tlie court, and their direction to the 
 jury, that although David's Fancy ^ the original, is located 
 by the plaintiff from A on the plot*, with an allowance for 
 variation amounting to six degrees and an half of adegreej 
 and though Dui'iil'n Fanri/. the ocheat patent, is located 
 from the same place, with an allowance of tliree 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 le* variation, as shall appear 
 to them proper from the evidence in the cause. 
 
 Martin, (Attorney General,) for the Plaintiff, cited 
 Esp. 490. 
 
 Shaajf and ffarpcr, contra, cited Hammond vs. Norrin, 
 (ante 150.) 
 
 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 I-'unrt/, under the 
 fescheat patent, by a greater or lr-s variation of tlie 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 loca- 
 tion 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 shall find the same 
 to be. The plaintiff' exrepted. 
 
 12. Tlie 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, a- 
 greeably to the evidence given, find the true lotation 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 
 wore not to enlarge or extend the preteusions of the plain- 
 tiff beyond the location of his pretensions made on the 
 plots, or beynd a straight line to be drawn from the let- 
 ter V to the head of Howard** Branch, wherever the jury 
 Uuuld find the same tu be; the plaintiff prayed the opiui
 
 OF MARYLAND. 
 
 0n and direction of the court to the jury, that if the jury 1808 
 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 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 Pulapsco 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 preten- 
 sions located on the plots, which shall lay within the loca? 
 tion 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 b^ 
 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 Y 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, act 
 Cording 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 plaintiff then pray-, 
 ed the opinion of the court, and their direction to the jury, 
 that if he is estopped from showing the true location of Da- 
 vid's Fancy , the escheat, different from what is located by 
 him for his pretensions, so as to prevent him from reco- 
 vering what is contained in his pretensions within the true 
 location, the defendant is also estopped from saying that 
 he true location is different from the location given by 
 the plaintiff. 
 
 Martin, (Attorney General,) and Aey, for the Plaintiff; 
 cited Com. Dig. tit. Estoppel, (B) (C.) Brereton vs. Evans, 
 Cro. Etiz. 700. Ludford vs. Barber, 1 T. R. 86. Co. Lilt. 
 352, a. Gray et ux. Lessee vs. Jlmos, (October 1796.) 
 
 DOXE, 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 vie\v
 
 CASES IN TilK i <M KT OF Al'IT.ALS 
 
 1808 in (lie case. The court refuse to grant the prayer. I 
 
 ited. 
 
 The jury returned the following verdict: The jury 
 find the true location of Jltirui's //'//<_/, the original, 
 and Sitn-id's J'UHCIJ, the CM heat, to l:e from the begin- 
 ning at black ./. as described upon the plots in thin 
 cause returned, then with the inner blat k line- 1 and \ 
 to little black , on the north we.it branch of J'tttaj. 
 river, and from the said rt, the jtirv find the third line to 
 run to figure black ;, and from thence the jury find the 
 fourth line runs to four perches below big black /', which 
 the jury find the head of J/inrant'a liiaruh, and from 
 thence, with Howard's Branch and the Middle Hranth, 
 binding on the same, to the beginning at Ji; and the jury 
 find for the plainlifi' his pretcn.-ions fiom the >aii ./, with 
 lines 1 and -2. to , and from thence to /", and fn.m / to 
 four perches below bi^ /'. \\Liih the jury find the head of 
 JIuinird's Branch, and with the same, binding on the 
 branches to the beginning) and that the defendant i> guilty 
 of the trespass and ejectment complained of in tin decla- 
 ration, within the said pretensions, in the n .,IM r com- 
 plained of by the plaintiff. And as to the u-~.(, > < ) the 
 trespass and ejertn.ent complained of in the re.-. due of the 
 tract of land called I)<n /</'* Fancy, for \vhich the di len- 
 tlant hath taken defence ujxm the plots returned in this 
 cause, the jury- fu.d the defendant is in no wise guilty 
 thereof. Judgment That the plaintiff recover against the 
 defendant 1;U t>innil li/nis aforesaid yet to come and un- 
 expircd, of and in all that put of the said tract of land 
 called J)<iviil'it Fanciji in the declaration thentioned, 1-. 
 &c. which is contained within the description and finding 
 of the jury, that is to say. In ^inniny; at black ./, i:j nn 
 iid plot* in this cause returned, and runi;iii^ with the 
 inner black lines 1 and 2 to little black , on the north- 
 west branch of /'tilajmco river, and from thence to /*, and 
 from Tto four perches below big /, the head of //, ir t! ,-<!'. <t 
 Branch, and with the same, binding on //..?.<;/</'. Branch 
 anil the Middle branch, to the h ;u:d ;I]M. for 
 
 costs. As to the residue, &c. judgment for the defendant. 
 The defendant appealed to thN court. 
 
 The cause was argued at the last term before Tn.fiii- 
 MAN, BUCHANAN, NICHOLSON, an .1. on th. 
 
 coi7f/, third, fourth, fijlh, and rixlh bills of exceptions, 
 takeo by the defendant bely ft.
 
 OF MARYLAND. 7? 
 
 Hftrper, Shaaff and Taney, for the Appellant, stated,, 1808 
 that tin- firxl bill of exceptions embraced three points 
 1. Whether the Lord Proprietary be not esfoppcdby his nnint 
 of Lim*s Lot as to all such parts of David's Fancy, (the 
 original,) as are included within the true location of Litres, 
 Lot? 2. "Whether the entail created by the patent of Da- 
 vid's Fancy, (the escheat,) be docked by the deed of bar- 
 gain and sale to Croxall? 3. "Whether, admitting these 
 two points to be determined in favour of the plaintiff be- 
 low, any estate in the escheat land passed to the lessors of 
 the plaintiff' by the will of John Aloale, it not appearing 
 that John Moale entered or died seized? 
 
 On the first point they cited Kelly's Lessee vs. Green- 
 field, 2 Hurr. - M'Hen. 121. Russell's Lessee vs. Bakcr^ 
 \ llarr. fy Jo/ins. 71. 2 Blk. Com. 295. Co. Lilt. 47, b, 
 352, a. 10 Vin. #6.471, 482, 485. Fairlille vs. Gilbert, 
 
 2 T. n. 171. Haynevs. Mcdtby, 3 T. /?. 441. 4 Com. 
 Dig. tit. Estoppel, 80, 84. 10 Vin. Ab tit. Estoppel, (B. 
 a.) Co. Lilt. 47, a, 363, b, 366, b; and The Attorney Ge- 
 neral vs. Anderson, 1 Hurr. fy M l lltn. 219. 
 
 On the third point they cited 5 Bac. Ab. tit. Verdict, 
 (D.) Malioney vs. Ashton, \ Hnrr. $- M'-Hen. 210. Slat. 
 32 Hen. VIII, ch. 1. 5 Bac. Ah. tit. Hills and Testa- 
 ments, (D. 1.) Stat. 34 Hen. VIII, ch. 5, s 3, 5. U'al- 
 lis vs. Fletcher, Cro. Eliz. 530. Ingram vs. Tothill, I 
 Mod. 217. Hunter vs. Coke, 1 .SWA:. 238. 2 Bac. M. 
 tit. Legacies and Devises, (B) 51, 52. '2 Blk. Com. 310, 
 209. 2-27, 228, 312, 523, 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 
 lav,-, relate to the original patent? 2. Whether the expres- 
 sions used in the original patent of David 9 s Fancy dr, 
 by operation of law, bind its second line on the fourteenth 
 line of Upton Court? 
 
 As to the first question, they cited The Attorney Gene- 
 ral vs. Snowmen, 1 harr. $ Johns. 3S2. Ratclijfe's case 
 
 3 Coke. 40. Kelly's Lessee vs. Greenfield, 2 Harr. $ MHen. 
 2 Blk. Com. 244. 77tc Attorney General vs. Anderson^ 1 
 Ifarr. f? M-Hm. 219; and Litt. Sect. 348. 
 
 As to the second question, they cited If elm's Lessee vs. 
 Howard, 2 Harr. $ M*Hen. 57. Dorsey's Lessee vs. Ham 
 r.wnd, 1 //err. 4- Jojms. 190; and Dqvis's Lessee v s. Bat, 
 (y, Ibid 264.
 
 8 ( \sl-.s IX THE COURT OF APPEALS 
 
 1808 That on the third bill of exceptions, the question 
 
 vheiher a plot iu which the <!!. -ndant below had nothing 
 to do, of the makini: of which he was ignorant, and whick 
 va.s made for ami under the direction of Ji. Ajoale, under 
 v'.otn the Ichors of the plaintiff claim, could be given in 
 evidence against the defendant, men-lv because it was in 
 part founded on a survey made, at his instance and that of 
 /r. Moule? They cited Anonymous, \ Stra. 95. Hull. 
 N. P. 2-17, 48; and liridgmun vs. Jennings, I Ld.Jiuym. 
 7.34. 
 
 That on the fourth bill of exceptions two questions arise 
 1. "Whether the termination of the second line of Da* 
 vid's fancy, (the original.) be not a question uf law for 
 the decision of the court? 2. "Whether the true legal con- 
 struction of the patent of David's Fancy, (the original.) b 
 not to terminate its si.cond line al the end of 150 perches? 
 On the first of these questions they cited Ciilntun's Lei- 
 tfevs Smith, 1 JIarr. V -Johns. 253. Gittingj't Lessee vt 
 Jffd/, (on appeal in this court. ) Dorset's Lcxxce vs. Ham- 
 mond. I JIarr. $ Jo/ins. 190. 
 
 On the second, Giltings'x Lessee vs. Half, (on appeal in 
 this court.) 
 
 That on i\\efflh bill of exceptions, the question was, 
 vliclher the location of the escheat patent of Dniid's Fan- 
 cy be not independent of the location of the original, ex- 
 cept so far os the lines of the former expressly call to bind 
 on those of the latter? They cited Hchn's Lessee vs. How- 
 ard, 2 Larr. $' M-Ilen 57. Dorscy's Lessee vs. Hammond, 
 1 Ifarr. fyJohn.i. 190. J/oicanPs Lessee v 8. Cr<nnu-tll, I!>id 
 118; and Havhim vs. Hanson, I Jfarr. .y J///n;. .- 
 
 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. \Yhethcr in this case 
 the plaintilV below be not precluded by his neglect from 
 the benefit of this testimony? They cited DarnaH's Lease* 
 vs. Goodwin, \ Hurr. 4- Johns. 282; and 1 Lojfi's (nib. 
 60. 
 
 That three questions arise upom the record, independent 
 of and unconnected with the bills of exceptions 1. That 
 the death of one of the lessors of the plaintill. since the ac- 
 tiuu was brought, and suggested after the jury were sworn.
 
 OF MARYLAND. 279 
 
 makes the proceedings erroneous. 2. That the finding of 1808. 
 the jury is uncertain; and S. That the judgment is enter- 
 ed to recover all the several terms stated in the declarati- 
 on, including the term on the demise of the lessor, whose 
 death was suggested. 
 
 In arguing the first and third questions they cited How- 
 ard's Lessee vs. Gardiner, 3 Harr. 4* 31' Hen. 98. The 
 acts of 1785, ch. 80, and 1801, ch. 74, s. 38. Corn. Dig. 
 tit. Abatement. Jlslin- vs. Parkin, 2 Burr. 667, 60S. 
 Parker vs. Harris, 1 Sulk. 262. Henrique* vs. Dutch 
 West India Company, 2 Stra. 808. Lumpen vs. Hatch, 
 laid 934. Frederick vs. Lookup, 4 Burr. 2021; and 
 Cumin $ vs. Sibly, Ibid 2490. 
 
 As to the second question they cited Bac. M. tit. Per* 
 diet, (Q.) and Gilt ings' 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, a* 
 to the first point, 1 Pow. on Cant. 152, 160. Co. Lilt. 
 45, a, 47, b, 352, a, 363, b. 2 Blk. Com. 245, 346. 1 Vin. 
 tfi.tit. Estoppel, 433, pi. 1; 461, pi. 3; 463, pi. 22, pi. 26; 
 475, pi. 4; 476, pi. 1. GoodtUk vs. Morse, 3 T. R. 365. 
 3 Com. Dig. 271 ; and Pickelt vs. Doivdall, 2 Wash. Rep. 
 106. As to the second point, they cited Culverts Lessee. vs> 
 Eden, 2 Harr. 8f M Hen. 279. And as to the third point 
 they cited Lux's Lessee vs. Peflclt, 1 Harr. $ Johns. 83. 
 (note.) Taylor vs. Horde, 1 Burr. 60. 16 Fin. Jib. tit. 
 Pos-session, 455, pi. 1 Smith vs. Stapleton, 1 Plowd. 
 431. Moore., 214 Deux vs. Jffferics^ Cro. Eliz. 352; and 
 Sachfvercl vs. Bognott, Ibid 356. 
 
 On the second bill of exceptions, they cited as to the 
 first question, 2 Blk. Com. 244, 245. Burgess vs. IVhcate, 
 1 W. Blk. Ren. 146, 163, 166. Co. Lilt. 215, b; and 
 7he State vs. 72m/, 4 Hurr. 4- M-Hen. 6. And as to the 
 second question they cited fiorsey's Lessee vs. Hammond, 
 and Gibson's Lrssee vs. Smith. 
 
 On the fourth bill of exceptions they cited Dorsey's 
 Lessee vs. Hammond. 
 
 On the fifth bill of exceptions they cited Gitlings's 
 Lessee vs. Hall, 1 Harr. fy Johns. 14. Tolson's Lessee. 
 .r. Lanham, (ante 174;) and Gittings's Lessee vs. Hull, 
 (D appeal in this court)
 
 X30 ISES fNT THE CO1 t <><,- \ppK\LS 
 
 () t , th<. ,s/.r//j bill of exception-; they referred to the acts 
 of Jn!y i:-:i, ch. 14. amUuly 17' ,on 
 
 Vt. flii/rrs, I Ilnrr. S' John*. 10-2. f ;/."/. />. A', f.f). I 
 LnflT* Gilh. : :m . I /',// r.v. Ifnn.l, 1 .M. 41 .V 
 
 On flio alle-.r.-Hl errors in the record they cited, (in the 
 Jirat anil third points raided. Far r*. 7Jrmi, 1 Ihirr. 
 
 .V.I. Oi/M M. flri/--t,m, 3 7J/rr. I S'.>7. 7,'urtP. 
 -C/fcf. -Ill, -11.1, IN. 4 IS, 4.10. .I.Uitnn vs. Oo'n-m/. \ 
 No.!. :.!., .'7/io/j. 1 .S"/A-. '2fiO. Dull. X. /'. ;K. Thrmtout 
 ts. Grey, 1 Sfra. 1O5G. Fair claim rs. Shtrmlilh* :> 7^/rr. 
 1290. /fi7m v. Parkin, 2 Burr 6f>7. t 7/r. .7,0. tit. 
 .-t'-fitement, (F.) And as to the second point they cii-d 
 Collinzhmii rs. Kin?, 1 7?/rr. G28, G2'l, (.>(). Cm-roll ei 
 (if. Lessee rs. .Vonroor/, I 77arr. *S* Johns. \ 86. Daman's 
 Lexxee vs. Goodwin, Ibid 284. Sultivane vs. Scrizrarr. I 
 Slrn. 005. Cornell vs. CIrtvering, 2 7,7. /.V//, 
 Jihnlncr vs. Xintlrrromlie, Ib. 1470 2 7?</c. .76. 230, 
 231, 23.'; and JHiiilin^hain vs. lndrm--, \ V/A 
 
 Curia adv. vu'.t. 
 
 Tin: Coi-nr, (at this term,) concurred in the opinions 
 of the General Court, a contained in the several bills of 
 Exceptions titken 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. 
 
 NICIIOI.SOX, J. T am for affirming the judgment upon all 
 the bills of exceptions: also upon the alleged uncertainty 
 of the verdict and judgment; also for the allein-d error a* 
 to the death of Richard 77. Moale. I am decided!;, 
 opinion, that the death of the plaint ift"s li not 
 
 abate a suit in ejectment. In affirming the judgment of 
 the general court, upon the first bill of exceptions, I \\ Ni 
 it to be understood that I do not entertain the most remote 
 idea, that the Lord Proprietary was not liable to be es- 
 topped, as other individuals are, or that he hail any other 
 of the incilrntnl prerogatives of the Ivin^s of l^n^hind: he 
 had onlv surh of the direct prerogatives as were expressly 
 granted by the charter. 
 
 JUDGMKNT AFI i:iMKl>.
 
 OF MARYLAND. 
 
 WILSON'S Ex'rs. vs. SLADE, el v.x. 1808 
 
 J UXE 
 APPEAL from the General Court. Debt on the same 
 
 bond as in the case of the present appellees and Morgan, 
 (ante 38.) In this case there were the same pleadings as 
 in that case, with the additional plea of plene (tilii/iisfra-j n ^. d ** e a p"$ 
 vif, and the general replication thereto. At the trial, at %"" ^"n^ftf 
 October term 1803, the plaintiffs, (now appellees,) offered deii".- ot of H nV '-ill 
 no evidence of any assets which had come from John co'me to ui iiand 
 Jf'ilfion, deceased, the defendants' testator, to the hands (V^cu"ur"^ 
 or possession of the defendants? but contended for, and necessary for the 
 
 . . ~ i i i- plaintiff to liow 
 
 prayed the opinion ot the court, and their direction to the 'imt a sen had 
 
 co'-.t to i hi- hands 
 
 iury, that on the plea of plene admimstravit it wasnot of|h - executes, 
 
 and ill it He plea 
 
 necessary for the plaintiffs to show that any assets had vv;ts "l ana(l " lis - 
 
 si, in of assi-u to 
 
 come to the hands or possession of the defendants; for that ft" *5SS Mt f *? 
 
 plamtitt s claim, 
 
 the plea was, unless the defendants proved the contrary b} cutor Bh dU not 
 the production of the inventory, or by other evidence, an Jy^JUe p,"^ 
 admission of assets to the amount of the plaintiffs' claim. 'tm-y^or^by'othar 
 The Court, [Done and Sprigg, J.] gave the opinion and cviaencc 
 direction, on the authority of the case of Slude and wife 
 ,n gainst Mo rgan. The defendants excepted, and the ver- 
 dict and judgment being against them, they appealed to 
 this court. 
 
 Johnson, (Attorney-Genera!,) and Magmder, for the 
 Appellants. 
 
 Martin, 7/J/and 71 Buchanan, for the Appellees. 
 
 THE COURT reversed the judgment of the General Court) 
 ypon the same grounds as in the case of Morgan vs. Slade t 
 ft uL (ante 38,) and awarded a proccdendo. 
 
 JUDGMENT REVERSED. 
 
 JONES et al. vs. JONES. 
 
 APPEAL from a decree of the Court of Chancery. The 
 bill, filed on the 29th of July 1799, by the appellants, as ; i;) a l ^ a ; ' ( ( ||j 
 complainants, states, that Susanna Jones, mother of the J^'.",. ^byVa 1 ^ 
 Complainants and defendant, being seized in fee tail (if a g"^,"'',!" j 1 *f{^ 
 tract of land in Saint Mary's county, called The first anrf-ftJlFto A22 
 second parts of Pounlnetfs Oversight, and desirous that fhecoiii'iTfchan- 
 the same, on her death, should descend to all her child ren p^l/cannot u!>el 
 equally, or be subject to her disposition by will, did by iue iu^iT 
 
 clniicery cannot 
 
 decree tltnt a Jced of conveyance, exrcntei] hj a tenant in tail, may be recorded afu r ih. expirati- 
 on of th'- ii.ii'' 'i uiu-ci by ia\v tor ihc recording of Uetd* jui vsuu tail jiut Licuijj witlua the proviso 
 ao ot tUe act of ""sj, i-ft 72, i u. 
 
 VOL. II. 36
 
 SK* IX THE COURT OF APPEALS 
 
 1808 do oil of indenture, in due form of law, rxor'ited and ac- 
 I.-i' . 'her with Jluthiit* Jnni. v, her husband, oil 
 
 the l."5rh of July ir07, bargain ami -ell tin- same to Hcnja- 
 min II illiunix. for the u.-e and behoof of Mafhias, her hus- 
 band, during his life, then to the n-e of Xt--?aiina during 
 her life, and from and after her decease 1o (lie use and be- 
 hoof of Mich person or pTMins., and for such estate, and 
 subject to such provisos, &.c. as she, Simanna, by any 
 deed, &c. or bv her last will and testament, to be bv lief 
 duly executed, should give, grant, limit or appoint, and for 
 \vant of such appointment, or until such appointment, to 
 the use and behoof of Susanna, and her heirs, for ever. 
 Shortly afier the execution of this deed, it was placed by 
 Susanna in the hands of her husband, to be recorded; 
 and within six months from the execution of the same Su- 
 sanna was taken ill, and in order to carry irito effect the 
 power given by the deed to her to make a will, she sent 
 for a person to write her will, and gave directions for the 
 land to be equally dNpoM'd ofl' amongst all her children, 
 but before the same could be formally done, she became 
 incapable of executing it, and died in a short time there- 
 ifter. On her death, HlntJiias, the complainants' father, 
 believing the deed was void, his wife not having been able 1 
 to dispose of the premises by her will, omitted to have it 
 recorded. That it was owing to the want of information 
 of their father, and his ignorance of the operation of the 
 deed, that lie permitted the time to elapse in which the 
 deed should have been recorded, and that it was not ow^ 
 ing to any fraudulent design or intention of the party or 
 j.artics (.'Mining under the deed, (hat it was not recorded 
 agreeably to law. That their father was also seized in fee 
 in his own right, of a considerable real estate in the said 
 county; that he entertained doubts whether the land men- 
 tioned in the deed wa-i actually ei. tailed on his \\ife.oi 
 Vas her's in |Ve simple, but <m beiui; fully made sensible 
 the -aiM- led, and that the deed would have been 
 
 effectual to dock the entail, though recorded after hi> \\ilV> 
 death, by which means the land would have i!e-i ended 
 equally, he, in order to do justice to his younger children, 
 resolved, that unless Ihe defendant would ieliriqui.-h hi* 
 claim by primogeniture, anil place his brothers and - 
 in the same situation \\ithhiniself, to convey all 1^ 
 estate amongst the younger children to the exclusion of the
 
 OP MARYLAND. 283 
 
 eldest; but that from sudden indisposition, and a. hasty 1808 
 death, the father was prevented from effectuating his de- l ^v^J 
 
 Jnnei 
 
 termination; and that by his death intestate, his estate dc- 
 
 scended equally amongst all his children, by which the^ 
 tldest son, the defendant, claims the whole of the mother's, 
 and an equal share of his father's estate. Prayer, that tho 
 (leed may be recorded, &c, The defendant demurred to^ 
 the bill. 
 
 HANSON, Chancellor, (December 1G, 1803.) It has, or\ 
 a former occasion (), been determined by the general court ^ 
 on a case submitted, that a deed executed by a tenant. in 
 tail, and not recorded within six months, but recorded af- 
 ter the tenant's death under a decree of this court, should 
 not operate against the issue in tail. This being the case, 
 the party claiming under the deed, has not a title to the 
 land, and therefore the chancellor conceives, that he can- 
 not, with propriety, decree the recording of the deed. . 
 j)ecreed, that the demurrer in this cause filed be allowed 
 and ruled good, and that the defendant be hence dismiss- 
 ed, but without costs, the chancellor deciding merely on 
 the opinion of the general court, in a single instance giv* 
 en, and never affirmed by the court of appeals. 
 
 The chancellor here takes occasion to observe, that he 
 always decides according to the known opinion of th$ 
 court of appeals, or that of the general court, where the 
 court of appeals lias given no opinion; but that there ought 
 to be a distinction between the decision, of the court of 
 dernier resort, and of a court below. The chancellor knows 
 not but that this suit is instituted for the purpose of ob- 
 taining the opinion of the court of appeals. From this de- 
 cree the complainants appealed to this court. 
 
 The cause was argued before CHASK, Ch. J. TILGHMAV^ 
 BUCHANAN, NICHOLSON and GANTT, J, 
 
 Key, and Johnson (Attorney- General.,) far the AppeU 
 lants, referred to the acts of 1773, ch. 1, and October, 
 1782, c/t 23. Luldlcr vs. Young* a Lessee, (ante G9.) The 
 act of 1735, ch. 72, s. 11. Pow. on D?.v. 393. H'iUs vs. 
 Palmer, 5 Burr. 2G.15; and Hunipson vs. Edclen, (ante 64.) 
 
 Martin and TP. florscy, for the Appellee, cited 2 Dae.. 
 M. tit. Estate in Tall, (D) 553. Jfoss vs. fioss, Chan, 
 {a} Sidgely vs. JK'Laughltn, 3 /,/. ? J/'//i. 2iO.
 
 A-K> IN niKCOCRTOF APl'KALS. 
 
 Or. 171. Ri<l:r(1y vs. M'f.ai'srMin. 3 I/arr. & 
 
 UXi i s. 1 /<///, 1 J/arr. .y ./O//HS. 
 
 CIIASF, Cb. J. I am of opinion tbat the decree of the 
 Cliancellor he affirmed, \\ilh cost*. 
 
 It is certainly an established principle, (hat the heir or 
 issue in tail claims the. land p(r fornnnn tfuni, and does 
 not derive his title to it from ihe tenant in tail, who in 
 rt -pect ot s.i id land is nothing more than the conduit pip', 
 through which the title to the land is conducted to il.r i- 
 sue in tail, whose claim to it is from the donor according 
 io the gift. 'J he land of the heir, or issue in tail, is not 
 liable to the debts of the tenant in tail, nor U In- um-pd- 
 lalile to execute or fulfill any contract made by his ances- 
 tor lor the sale or conveyance of said land. '1 he is.ue in 
 tail cannot be barred of his ri'Jit. (rj\ by fine, common re- 
 covery, or deed executed according to a ' of a^-nnbly. 
 The deed to bar him n.ust be operative in the 1 
 the tenant in tail, for immediately on his dvath the til!. 
 the issue attaches. \i' the deed had been mnidrd .vithin 
 the six months, it would have operated bv relation. (Km 
 the date of the deed, and would have barred the i;i-ue in 
 the life-time of the tenant in tail. 
 
 An estate tail is not within the act of 1785, rji. 72, for. 
 recording deeds. The petition must be filed against the 
 heir, devisee, executor, or administrator of the iancr, 
 and with respect to the land entailed, the heir or i>Mie in 
 tail is neither heir, devisee, executor or administrator. 
 
 I have shown he cannot be considered as In-ir. If th 
 land was devised to him by the tenant in tail, he would 
 rot take as devisee, but by a title paramount J.:T fi-r; 
 </('?!/, which accrues to inslunlc of the death of the ances- 
 tor. 
 
 The case of executor or administrator can ir.lv niato to 
 estates !or \t i ai> or an estate for the life or li\es of others; 
 1iom all which the roncl j'mn is lair and irroi*fiblf. that 
 an estate tail is not comprehended within the act of 17*5. 
 
 This que'-tioii \ ;n dn i-'rd liv the jtid^o cl 1 : 
 court, on a reference to them b> tiie. chancellor, at Way 
 term 1794, in the case of CAf/r/r? /./(/_T/I/, if II 
 against U'illlum .l/'/.i.'/^/i/V//, (:> / 
 which decision was adopted by ifce 
 in by the patties, and has since Lecn ci-nsidertd as the law.
 
 OF MARYLAND. 
 
 TJLGHMAX, BUCHAN-AX and NICHOLSON, J. concurred. 
 GANTT, J. dissented. 
 
 DECKEE AFFIRMED. 
 
 X vs. WALKER'S EXT. Leatees and Devisees. 
 
 APPEAL from a decree of the Court of Chancery. The ch. in.t. ..,, ,,y,-u 
 bill in this case was originally filed on the Gth of Augus! eamj-in tin i-uri 
 1801, by the testator of the appellees, in his life-time, and ;!<> "wtof* 
 
 J lot luai'lnK', or 
 
 it stated that Brogden* having a claim against biro % ' h^'uor 1 M 
 450 1 1, applied to him by letter dated the 27th of;;";; ' '^^P;;^' 
 August 1 800, to secure the payment of the debt by a "',',V plvV. 1 t'!l 
 mortgage, and again, by letters dated the 30th of March ^l^mbLThan- 
 and 26th of May 1801; that the complainant, being wil-^'""/ ''.'.ci, 'U'ty 
 ling to secure the payment of the debt, consented to give mlTtakeTffect'te 
 .a deed of trust, or mortgage of his property, to Broaden. ^^'"n^.i^^ 
 for that purpose, and by appointment met him at the city ^eynnce r of l *SS 
 .of JlnnapoH* on the 17th of June 1801, to make the re- !" l %?. , i,? ff d '' a ,?; 
 qui*ite conveyance, and on that day executed to Broaden mti> court m 
 a deed for tu-o tracts of land, the one called Row JJowne, mp/iie foilowT"^ 
 and the otlier JRoiv Downe Security ^ containing together and hrqu'tath t^ 
 S'2,5 acres, and also a bill of sale of all his slaves and per- a" my real esr a t<- 
 
 lluriOff tier r.ulu- 
 
 sonal estate; but he expressly charged that the same were [ al ' if< '. antl ate> 
 
 her <!( cea e to mr 
 
 only intended as a security for the debt, and not as an !" i' l ,' e v ' ,"'-""! 
 
 Ins heir*, lainliy 
 
 absolute conveyance in fee ^ilrlple to Brogden. T! at the r'^ ot ,,"^ ; |-", r '" 
 
 pht-w -"honlil die 
 
 ]v f'.n he nnivi's o the ape < f 21. or Irnv 11? issue lawfully N-irnttep, tl.ip, X, P , T W arr:vi-il in Mie 
 srf- of 21 ^fii's.nn:) (linl \vilh.-nt i-<m Urlil, thai ill'- fslatc fail \vnx dock. J by tlie dml IVi.m I w t o 
 AV H, ahlio' \V B was dt-clan d to hold Ihe LIU! coi:vi yfd, in trust {bi- 'I V , am! tlio e ciauuii - umltc 
 him 
 
 .-- *. I'lovtll JUJln , I III** r*!'" 1 !!!'^ 
 
 tanccs of the cas" 
 
 'I he reliif which may have Ix-en obtained by a complr.ir.int who hus die<!, niav be eian-p,! to I 
 presenlatives r> living the Miit. 
 
 A representaiivr, instituting: an origiua! suit, may have the same relief which, his snccstor dcv jr 
 testutur, &c might have had. 
 
 /
 
 S50 
 
 v \ 
 
 \ 
 
 1808. 
 
 iainant, boinj HIP nephew of /.'. . <d. at ilie 
 
 of executing the deed*, tin- i ited confidence 
 
 in his honour and iufo^iitv, ami nut in tin- ira-t ii.|n-ctin! 
 
 (la- pmiiv of liis intention-;, but on tin- contrary taking it 
 
 .inted that the con\e\at deeds <.| mm 
 
 ' of i!,c dei>t. pin 
 
 to the propositions of Jlr<i-t!tn in t!>.a: < execut- 
 
 ed the. sismc i\ithoi. n until the in> 
 
 produced by J>n"/iltn fur execution. That he 
 never rrad tin* - i vere they n-.-ul to him, nor had 
 
 he anv kno\\ leti^e of their contei 
 
 ml. ami that he executed them under the fuilot ronviction 
 ihev \\( re only deeds of im : , to ~ccurc 
 
 the j4i.yuiont of t!it> debt, :s- Lrogilin nevfr r'(jiiin'd more, 
 and had no title or deivai.d \\h;i- . a r<m\ 
 
 in fee simple. That the complainant, in Januaiy 1SOI, 
 
 . and <<M- t\<o yoari 
 pre\ious had been in tl. n of liis foriunc, \\hich 
 
 ii ample one, - of land, 
 
 of all kind, worth at a moderate estimate or 7< 
 That coming to liis estate at an eaily period of life, with- 
 out the ordinary inducements 10 economy, or with redu- 
 tion to withstand the temptations of dissipation and extra- 
 ice, !:e had indulged but too fiedy in the foil 
 . and had been too n.'.uh addicted tu drink, uhicn 
 > had often incapacitated hi,. .ness, 
 
 and cot (infrequent! >l Li:.i a dupe to the unpiiu- 
 
 eiplcd artilicci of dei^nin,u; i:en. Thut to hi-, ntu 
 rnent, lie hud lately discovered t; 
 
 ,.ite conveyances, in fee simple, to him, of the 
 
 .n mentioned; and that, i;::,.ir*-cd v.itii the 
 
 ',(. e of the ^'in, he immediately ap- 
 
 i the subject, and rc|tiMed him to ha\e tl.c 
 
 d, Avhich he well hoped he \\onld have 
 
 , in viola- 
 tion of honour to do it, and ti 
 
 i:\ey the pcr-oiml 
 
 : nd also to l.im an e-tate. for life in 
 
 and, but } -' d to K lii,(jii>h hi> ( I.. 
 
 title to the latter i:, .at if he did, 
 
 linant \\o';!d >M.II it. Tlut 
 
 I, and oflVri-d to j)'iy tl: 
 .ure ihe payment of which the tleeda were eifi
 
 OF MARYLAND. 28? 
 
 cuted, but he wholly refused to take the money, or to re- 1808. 
 convey the property, saying lie had a conveyance for it, 
 and afl'ected to tliink he was entitled to it, contrary to the 
 avowed object of the complainant in making the conveyance, 
 the obvious dictates of justice and the established laws of the 
 land. That previous to the conveyances, the complainant 
 had incurred debts to about 1000. which were fairly and 
 honestly due, but which he was incapable to pay, as the 
 whole of his property had been conveyed to Brogden, 
 That the complainant's other creditors were pressing him 
 for payment; that they suspected the conveyances were 
 made with the fraudulent intention of cheating them of 
 their honest claims, and have not scrupled to represent the 
 transaction as such, which, to those unacquainted with the 
 real motives of the complainant in making the conveyances, 
 the circumstances afford but too much reason to believe} 
 but he stated that the conveyances were made without any 
 collusion with Brogden, or the most distant view of de- 
 jniving or defrauding any of his creditors of their just de- 
 mands, which he was willing and desirous to pay, but 
 which he never could accomplish, unless his property was 
 restored to him. That his reputation had sustained a con- 
 siderable shock, that he was reduced to indigence, and 
 could not obtain credit in the country for a farthing. In 
 fine, that he was a ruined man, unless he could procure 
 relief in this court. Prayer for a discovery, and permis- 
 sion to redeem the property intended to be mortgaged, on 
 paying the debt, and for a reconveyance, and other relief, 
 c. The answer stated, that William Brogden, the fa- 
 ther of the defendant, died intestate on the 1 st of November 
 1770, leaving the defendant his heir at law, by which means 
 all the real estate of his father descended to the defendant 
 according to the then existing laws of this sfato; but that 
 the defendant voluntarily, on the 18th of May 1775, exe- 
 cuted a deed for the lands called Row Doivne, and Row 
 J)ownc Security, to John Brogden, the brother of the de- 
 fendant, who by his last will, dated the 6th of April 1782, 
 devised the same to his sister Elizabeth Walker, the mo- 
 ther of the complainant, during her natural life, and after 
 her decease, to his nephew Thomas William lYuU;cr, the 
 complainant, and to his heirs lawfully begotten: but in case 
 Ins said nephew should die before he arrived to the r. 
 tweuty-one, or leaving issue lawfully begotten, then tli-e
 
 CAM> IN TI1K COI Kl <>1 AIMM. \ LS 
 
 real estate should go to his lioir at law U'lllhtm 
 the defendant. Tliat the defendant had a conquerable 
 claim against the complainant, \vlio was tin- sole ir| n^i-n- 
 laiixp of liis m ithrr, amounting to .1-1 JO, to be paid which 
 faid demand, or to satire which, tlic defendant \\ . 
 
 . aiu! he admitted, that for that purple he wrote to 
 tin- complainant the several I ! to. That the 
 
 complainant never did consent to secure the claim I.. 
 of mortgage, li'it after the letters were written and rereh- 
 cd, he came to the defendant, and voluntarily, and unsoli- 
 cited by the defendant, proposed to him to give l.iut an ab- 
 solute con\ev.i!ice for all his lands and negroes, the names 
 of which he furnished the defendant with, stating it as his 
 desire to convey all his estate, legal and equitable, to the 
 defendant, and assigning it as a reason, that the estate had 
 
 originally conveyed by the defendant to his uncle 
 Voluntarily, and it was proper that it should go back to the 
 me person) and ;il-otiiat he, the complainant, was sur- 
 rounded with designing people, \\ho-e rl'ji-rl wa. to 
 Jiim out of his property : and that a Mr. C'luyrt!^ who held 
 r.djoinn; land, had !aid that he expected to <;et the laruJ, 
 and intended to live on it. The defendant thereupon ap- 
 pointed the complainant to meet him at Annapolis, on ihe 
 17th of June 1801. to execute the conveyances. The de- 
 fendant employed liic/iurd Jtidgely, esquire, to prepare the 
 conveyances, according to the agreement and proposi- 
 tion of the complainant, and I.e did accordingly prepare 
 the two deeds referred to. That the complainant, agree- 
 ably to his appointment, met at .tiinupolis on the 
 tlav appointed, qui' iiid called on J:i.!^ifi/ f;ir tlie 
 
 deeds, and they were delivered to him. That the com- 
 |lainant carried the deeds to the house of J<.i,fs Mitckitliiii, 
 
 .<, ;i j'l-tue of the peace, and the complainant did 
 there "i^n, -eal and acknowledge, and delivered them to 
 the defendant. That the complainant knew the objet t .f 
 the deeds, and they were designed by him to corney aft 
 
 ,te estate to the defendant. That the deeds were 
 not intended or designed by the complainant or defendant 
 iieiit of ni.y MIDI of money, or to 
 be in any manner conditional, but were intended and ile- 
 
 ; . by both the tomplainant and defendant, lobe . 
 lute and unqualified coin 10 the defendant, t'f all 
 
 tale both legal and equitable, of the complainant, in
 
 OF MARYLAND. 
 
 Ihe property mentioned therein. The defendant denied 
 all fraiul, &c. 
 
 Testimony was taken under commissions, which it is 
 not necessary to state. 
 
 HANSOV, Chancellor, (22d December 1803.,) Iti this 
 cause tlf complainant applied by his bill for a reconvey- 
 hnce. The cause being set down for hearing, the death 
 bf the complainant is suggested, and admitted. The 
 chancellor is now moved to proceed 10 a hearing and de- 
 cree under the act of 1797, r/t. 114. And the (question 
 Ss, whether there can be a decree without further proceed- 
 ings. 
 
 On considering the act of assembly, it appears to the 
 chancellor, that whenever he decrees in a case where one 
 of the parties is dead, it must appear to him that the de- 
 cree may be effectual. In other words, that he cannot de- 
 tree with propriety where one of the parties is dead, un- 
 less his decree is to have substantial operation. In short, 
 it appears to him that the act is confined merely to cases 
 where money is, by the decree^ to be paid or brought in, 
 or the bill to be dismissed instead of money directed to be 
 paid or brought in. Now, supposing the chancellor, in. 
 this case, of opinion, that there ought to be a reconveyance 
 on paying or bringing in money is it possible to con- 
 ceive that the decree is to order money to be brought in or 
 paid by a person who is not a party to the suit, and the 
 conveyance to be made to the samej or another person, 
 who is not a party to the suit. Now, it is clear to the 
 chancellor, from a view of the act, if a decree takes place 
 under it, that the decree must be between the parties to 
 the suit. For instance, a decree for relief in this case 
 would direct the deceased to bring in or pay money, and 
 the defendant to convey to the deceased. The chancellor 
 would suggest^ for the consideration of the bar, the ques- 
 tion, whether such a decree would not be a mere nullity, 
 except that it would show his opinion, and lay a founda- 
 tion for another suit, in which the representative of the 
 deceased would be a party? But a bill of revivor would 
 Certainly be preferable to a new suit. 
 
 The act says, that the decree shall be as effectual as if 
 the deceased were alive, except, &c. There is not a tit- 
 tle in the act directing that the decree shall be for or 
 
 against a representative to the deceased, who was not an 
 VOL. ii 27
 
 CASK* IN THE COURT OF APPEALS 
 
 1808 Original parfv; but suppose it did M> direct, how is th 
 chain cllor to know tlie representative \\iihout further pro- 
 ceedings in the c:i<i-e? N he to art npon the hare allega- 
 tion, or on exparte trs'imoiiN r Ami if there are to be 
 further proceedings, *vhat can there be better than a bill 
 of revivor? The meaning of the act appears to be merely 
 confined to this wiicn one of the parties to a suit die* 
 after a submis-ii>n, or setting down for hearing, the chan- 
 cellor may decree the payment of m >r by, the 
 deceased, anil it shall give such a claim, as is founded on 
 other decrees for or against the estate of the deceased; but 
 the claim shall not be entitled to a preference. There 
 probably may be some other cases; for instance a decree 
 for recording a deed, where nothing is to be done by the 
 deceased party. The more the chancellor reflects, the 
 more he is confirmed in the opinion he has e\|uv--ed, and 
 the more he is convinced of the impropriety, and indeed 
 impracticability, of the act having an operation more ex- 
 tensive than he has mentioned. 
 
 It does not appear to the chancellor proper to examine a 
 cau^e merely to see whether he would dismiss the bill, unless 
 the cause be of Such a nature that a decree for relief might be 
 
 O 
 
 effectual. The death of the complainant be; -;od, a 
 
 Lill ufrcviror was filed by hisexecutor and residuary legatees 
 and devisees, stating the former proceedings, and the h-t 
 will of H'al/irr, &c. to which the defendant ansu'erc-t: iu 
 which, among other things, he stated that ll'ulkcr, the tes- 
 tator, was never married, and died without i>sue: that the 
 land and premises in question \\tre i ml limited 
 
 over by the \\ill of Jolm JJrogilcn to the defendant, in 
 case ll'nlktr should die before lie arrived to the sige of 
 twenty-one, or leaving issue lawfully begotten. That he 
 hath been informed, and believes, that II vlkcr hath made 
 t will and testament in the manner Mated, but be- 
 lieves the same was obtained from him through artifice and 
 by imposition, ar.d that thr<-ame was not executed bv him 
 at a time \\hen In- was of sound and disposing mind. That 
 he should be able to prove, by s< \eral respectable wit- 
 
 ..it //'<///, tr, shortly before his death, ex| 
 himself pufectly sai:-iied \\iih the disposition he had 
 made of In* real ami |ei-oi,al property to the delendaut, 
 the same being made in conformity to hid intentions.
 
 OF MARYLAND. 
 
 The commission, by agreement, was opened for taking 1808 
 further testimony; further testimony was accordingly 
 taken, and returned, which it is also unnecessary to state. 
 
 It was admitted that the defendant is the lu-ir at law of 
 John Jlrogden, and that Rebecca Finkney, one of the com- 
 plainants, was the half and only sister of W~u!ker y and 
 that he had no brothers or children. 
 
 HANSON-, Chancellor, (February Term, 1805.) This is 
 a case of a most delicate nature, in which the chancellor 
 earnestly wished a compromise to take place. On this ac- 
 count it is that he has delayed his decision. He. must now 
 proceed to the performance of his duty, in giving, such a 
 decree as he deems consistent with, and required by, thp. 
 established principles of equity. 
 
 The complainants pray relief on several different 
 grounds 
 
 1. They say the defendant committed a fraud in pro- 
 curing Walker's execution and acknowledgment of deeds 
 variant from those he had agreed to execute. 
 
 2. They say that if even Walker was apprised of the 
 contents of the deeds, they ought to be either vacated or 
 controled. on account of the defendant's having practised 
 on an ignorant, imbecile, intemperate young man. 
 
 5. They contend, that if both these grounds should fail, 
 and supposing the deeds to be, as they purport to be, deeds 
 of real bargain and sale, the vast inadequacy of price, 
 (250 current money, the consideration mentioned in each 
 of the deeds,) coupled with the suspicious circumstances 
 disclosed by the evidence, ought to be considered as a 
 foundation for setting them aside, or granting the com.-* 
 plainants some other substantial relief. 
 
 It is proper for the chancellor, before he proceeds to a 
 final decision, to remark on t\vo points made on the part 
 of the defendant. 
 
 It is contended, that Walker was a tenant in tail; that as 
 he died without issue, and as Brogdcn was the reversioner 
 in fee, the land must belong to Broaden, unless it can be 
 shown that the entail was cut off. And that if the deed 
 from Walker to Br.ogdfff^ for conveying the real estate, be 
 vacated, it cannot possibly be considered as having the 
 operation of converting Walker's fee tail into a fee simple 
 in Brogden, or that, if it has that operation, the fee mu=t 
 remain in Broaden to his own use.
 
 893 CASK.? IN THE COURT OF APPEALS 
 
 1808 The defendants iotni-c| lias ;ilsn ini-'e<! on that etab- 
 
 li!>eil \\.-ll known principle in rhanriTV, re^-et liny; (he 
 ' of an answer, \\hich the defendant has been com- 
 pelled to make on oath. It is true th;it tlu- defendant lias 
 in his answer expressly denied all fraud and imposition 
 wherewith he is charged, and that there is not a single 
 witness to refute his answer. 
 
 As to the first point, the chancellor has not the least 
 doubt, that if even // (tlkcr had only an estate tail, (which 
 lie i- satisfied was not the case.) the said i - com- 
 
 pletely destroyed by the deed executed to Broaden, and 
 that Brogden, under the deed, was to hold the land, either 
 to his owq sole use, or in trust or by way of pledge or 
 security. 
 
 As to the other point, the chancellor conceives, as on 
 other occasions he has declared, that frnvd is not to he 
 considered a a single fact, bvt a conclusion lo l-t drawn 
 from all the circumstances in ihe cate. It i* certain, that 
 although the defendant has generally denied fiand. he 
 has depied but few of the matters charged in tlie bill. 
 
 But the chancellor does not consider bin-self under the 
 disagreeable necessity of deciding, whether or not there 
 vas fraud in obtaining the deeds. He views the di 
 executed by a weak young man, conscious of his inability 
 lo protect his property, or to manage his own concerns, 
 and therefore resolving to place himself under the guidance 
 and protection of an able and affectionate relation. If it 
 could be imagined that he meant to ct>n\ey every part of 
 his ample property for the benefit of that kinsman only, 
 and to be absolutely dependent on him for Mjh.-i-ienre. he 
 roust be deemed very little superior to an ideot. \Vere he 
 alive, and in the place of the present complainants, who 
 \s there that would not declare it the duty of this tribunal 
 to save him from the wretched consequences of an act pro- 
 ceeding from madness, folly, or habitual ebriety, &r. 
 
 Supposing the intent of the deeds to have been that HV/7 
 far should retain his OVID property during life, and that af- 
 terwards his uncle should have an absolute fee, how difle- 
 rent would deeds, properly prepared for that purpose, have 
 been from the deeds executed by U'ulktr. How (iifl'orcnt 
 too, the chancellor must say. would have been the circum- 
 stances attending the execution and acknowledgment. The 
 tet ami fairest construction i=, that the deeds were inteaaV
 
 OF MARYLAND. 
 
 ed to, secure to Jlrogden a debt, which although greater 1P08. 
 than n/Acr might have aclmitteil, was trifling in compari- ^->^^o 
 son of the value of the property conveyed, and to put it out 
 of the power of the grantor to squander his estate, and be- 
 come a prey to designing men. Here then was a resulting 
 trust, op here there was an equity of redemption, or here 
 was a silly, intemperate young man, who really did not 
 know what he was about, and who therefore, ought to have 
 the protection of a tribunal, whose peculiar duty it is to 
 watch over ideots. lunatics, madmen and fools. 
 
 The defendant having originally conveyed the land to his 
 brother, front whom Walker derived it, most probably 
 thought it justifiable for him iq secure a return of it as boon, 
 as the miserable da v* of Walker, should be ended. Let it 
 be supposed that IVnlkcr was actually apprised of the pur- 
 port of the deeds prepared by Rrogdcii's attorney, as ia 
 contended by Broaden what man of intelligence is there, 
 that will not ay that it was sufficient for him to have an 
 ample security for his debt, and to screen his nephew from 
 all imposition which might be attempted by others? Who 
 is there that would say if Walker was of sound disposing 
 tnind when he made his will, that his will ought not to pre- 
 vail? And if he was not of sound disposing mind, why 
 was not his will contested? 
 
 It has been urged, on the part of the defendant, that tho 
 complainants are not creditors; that is to say, it is supposed, 
 that not having paid a valuable consideration for Walker's' 
 property, they have no claim which ought to be regarded 
 by this court against the legal title vested in Brogdcn bv 
 the deeds}. No! if Walker, during his life, was ontitlcd to 
 relief, his representatives, on every sound principle, are 
 also entitled. When has it ever been decided, by this or 
 any other tribunal, that relief, which might have been ob- 
 tained by a complainant who has died, shall not be grant- 
 ed to his representatives, reviving the suit? Or, even that 
 a representative instituting an original suit, shall not have 
 the same relief which would have been granted to his an- 
 cestor, devisor, testator, &c. 
 
 The chancellor repeats, that the decree he is about to 
 make is not grounded on a conviction that fraud was per- 
 petrated by the defendant. He is clearly of opinion, that 
 the complainants are entitled to a decree in their favour on 
 pther substantial grounds. Decreed, that if the executor
 
 294 rm: CWRT or APPEALS 
 
 1Sn,9. complainant, shall brin^ into con if on or hoforc. \r. to be 
 .i 10 the defendant, the . \\ith interot In n\ 
 
 the irth el" .lure 1801. tl-o defendant. !iy a L":od deed, ac- 
 kmmiedued ;nii! recorded according to laxv, shall mir. 
 
 to tin* executor complainant, all the nrirroi-s. &c. 
 And if (he i!. ..mplainai' 1 . -hall 
 
 on or before, &r. brine; into court the like Mini c;f J'250, 
 with interest aid, to be pa'ni aid, 1he de- 
 
 fendant, by a coed dm'. &c. shai'. ;-nf, &r. unlo 
 
 the devisees complainants, and their heirs, as tenants in 
 common, to have and to hold tn them, and their h^irs, to 
 Ihe use or uses mentioned in the last -nil] ofthe said II alkrt\ 
 llic land, on the ?;iid 17th of J'me, K c (il by tin- said ff'ulf.rr 
 conveyed unto the sai-1 /',';..'.//, bfin;^ } 'arts of luo tracts, 
 &c. Uut if the said complainants shall fail to !: in:: into 
 this cov.rt the money hen-by direited to : ',t in on 
 
 or before, &c. tliere sliali be sold, for (lie payment to the 
 ilefendant of the said l\vo sum-; amountii. i . uitfi 
 
 . &c. S( inurl; of tli" afi!je-aid |;'r.>o!];i! niul 
 
 lantl as shall be neces-ary: the personal property bein-; first 
 to be sold. And N. li. is hereby appointed trustee for 
 ino; (lie said sale; and the course and manner (if his 
 proceeding shall be as follows, .c. The Uefcnclant ap- 
 pealcil to this court. 
 
 led before POLK, BUCHANAN, NICHOL- 
 
 . 
 
 ' ' tf1 ff and Tanty. for the Appellant, 
 con !. That tlie bill is no evidence in : it 
 
 iy in the language (.f counsel, 
 
 i lO. 
 
 iirs exprrs'ly all fraud; and there is 
 . proof against the denial of fi and in the an.\\er, as. 
 ;;u: law and usavre of tin- court of chancery entitles the 
 ap; :-s. Il'ul'ilml, '- Chun. (*a. 8. 
 
 Company of i rs. (iorcrnor of ("/;/;.</' //otjiitul, 
 
 I J'ern. 1G1. tl'dl.'ni r. //:////*, 2 .'///,-. H 
 J/r/in, 2 Com. /. Hubinaon vs. Cumin:;, 1 .///.. 
 
 : ..n.l .1/c/i r.v. U'urd, '1.1 1 1,: 
 
 5. NH v. i: iii'-s is sworn on the part of the appellees who 
 gn< x-U competent testimony; and neither fraud 
 
 uor iiaj.oaiuoa is proved by any le^al competent tcsiimony
 
 OF MARYLAND. 
 
 the whole being hearsay or declarations of H alker him- 1808. 
 self. 
 
 4. The deeds of conveyance transfer not only a legal, 
 but an equitable estate to the appellant, not impeaciiable in 
 a court of conscience, and wore fairly obtained on a pro- 
 per and good consideration. J'i'/ers vs. Beaumont, 1 Vern. 
 101; and The King vs. The, InJtubitanls of Scummonden, 
 3 T. R. 474. 
 
 5. If the deeds are declared null and void, as unduly 
 obtained, yet the appellees should not have a decree for 
 the real estate, as in such case it is entailed proper /?/, not 
 devisable to the appellees by will, and boloiigs to the ap- 
 pellant as heir at law and remainder-man. 
 
 Martin, Johnson (Attorney -General,) and T. Buchanan, 
 for the Appellees, cited Clarhson vs. Ha,iway, 2 P. Wins. 
 203. hca/hcolcvs. Paignon, 2 Bro. Chun. Ca. 167. >ftrd- 
 glass vs. Muschamp, 1 Vern. 237. Bennet vs. Fade, 2 
 JllLSZT. Chesterfield vs. Janssen, 2 Ves. 125, 155. Excl 
 vs. Wallace, Ibid 524. Uridgman vs. Green, Ibid G27. 
 2 Pow. on Cont. 144, 145, 152 to I GO. Osmond vs. Fitz- 
 roy, 3 P. ft ins. 129. Cole vs. Gibbons, Ibid ^Q. Chew's 
 Lessee vs. Wcems, (ante 173, note;) and Frazler"s case, 
 cited in Owiiigs cs. Reynolds, el at. at December term, 1810. 
 
 UKCHEE AFFIRMED. 
 
 DAVIS'S Lessee vs. DAVIS'S Heirs. JUNE. 
 
 APPEAL from a judgment of the General Court, render- _} vll< ; rt ' ">< <;' 
 
 J '- K.fferediaeviilrnca 
 
 ed in an action of ejectment brought by the appellant. b >' u ' i';"'"''* 
 
 \vcrc i, <it raffieimt 
 
 The declaration contained a ileigise for a tract of land |"' d 1 ' R:llM ', t!l '". c<i 
 
 lo warrant the .ju- 
 
 called Brcwerton, containing 400 acres, and one for a !7 '.Ir 1 ", 1 '"" *'!** 
 
 a (Hri MII, tilulrr 
 
 tract called Linhanrs Search, containing G8 acres, both "% 'J^^f 
 lying in Jinne-Jlrundd county. There was also a demise Lidi "ih^" j,^ 
 for an undivided moiety of the same land.*, omitting the inV.pimluimMoeo 
 quantity of acres contained in each tract. The defen- \\\ '' '!M; l.daVit 
 
 ... A . .. , , , . r Tliestnmpp'.t pre- 
 
 dant, (tlie ancestor ot the appellees,) took general defence sumption ufaRWHi 
 and issue was joined. The plaintifi', at the tiial at May ur of" 'the" do 
 
 . J iciiilata 
 
 term 1805, read in evidence a grant dated the 7th of 
 tember I65y, to John Brewer, for a tract of land called 
 rewcrton, fcnncily surveyed for William Pythc;-, lying
 
 C \P-RS IN THE COURT OF APPK M.S 
 
 1808 on -ide of Chnnpeake biy, on tlie nf 
 
 ""*"-' the South river; &c. containing 250 acres. He. aUu 
 
 certain entrie-> f r -> n fhr rent roll*; l>v o-i of them it ap- 
 
 Dtvtt 
 
 peared that a tract <>f land called rylfarton* wa-. surv, 
 on the 20th of Jim?' Ki.iJ, for ll'i' ' /,; /'i/lher, Ivin-j; on 
 the west side of South river, contain!!? 1 : ."5M aires, and 
 that it was in the possession of Jam?* AW/ru/tY.*, fur /'r- 
 m///*s orphans. By another entry it appeared, that the 
 tract called Pytherton, surveyed as above mentioned, wa< 
 Mited to John /irocrr on the 7th of September 165H, 
 and called Ilretcerton, anl that it \va* in the |u..-^-.i-in of 
 Itufjfrt J)tir>s. By another entry it was stated, that the 
 iract called Brettrrton as resurveyed on the 9tli of No- 
 tember 1T04, for Joseph /hewer, and contained 4f>0 
 acres, and that the following al'n-nations had taken place, 
 vir. "^50 acres. Robert Duri* from If'il/iain Dnris and 
 /'rarock, 12th of September, 1T44. 100 aero-. 
 
 ; and wife from John Gresham, 
 
 June 1T44. 1(K) acres. ./c/ji //(/; from Joseph Jf'il- 
 S 12tli of January 1747. 130 acres. Jan: ,-v .V/r- 
 tubbin from FenlinanJo Brewer, 12th of October 1747." 
 He also read the grant for Liiihuni't Suirch, issued to 
 Jw/uj Linhum on the 12th of June 1G8S, and containing 
 58 acres. Also a deed from ft illimn Peacock and If'il- 
 liftrn Davit to Itobcrt Davis, dated the ICth of Sep- 
 tember 1744, for Rrnrrrfon and Linhum' s Search. 
 Tie then proved by John ff'elc/i^ aged 7'"' yrar>, (hut when 
 he the witness was a boy in the year 1738, he \\a^ 
 at the house of Robert Davis, who was then married to the 
 defendant (a), and lived upon and possessed the lands for 
 which ti.is suit is brought: that Daris always, afier his 
 marriage with the defendant, and until his death, lived <m 
 the land and po^-essi'd the same, and after his death his 
 v. if. 1 , tin- (ii-fi-ndant, lived upon and posse-sed the same 
 down to this time, and si ill does. That he never kne\\ or 
 heard that any person, except Rohrrt Davis and \i\^ wife, 
 possessed the land, or any part of it. from the year 1738 
 down to Jhis tiiue. That Snnih //V/r/.v, the defendant, had 
 two i-,ters who, together with Xurah, were the daughters 
 of Dnnifl Paint: Sarah wa the elde-t. jnani.-! t.. /,' >hcrt 
 a- abuvi-: J . :'ie second, married It iHitnn 
 
 Peacock, who lived with her some yearr, and died I 
 
 fnj She afterward* died, and her heirs were made parties.
 
 OF MARYLAND. 97 
 
 lie; 1 a widow; that she remained a widow two or three 1808 
 years and married the deponent's brother, with whom she 
 lived two or three years, aid died about the year 1750 or 
 1751, without issue. That Elizabeth, the third daughter, 
 remained single several years afiorhe first knew the family 
 in 1738, afterwards man-led William Davis, brother of 
 the above mentioned Robert DaviS, by whom she had four 
 children, one of them, the eldest, father of the lessor of 
 the plaintiff in this cause; that she died before her hus- 
 band, but when he does not recollect. That he knew 
 nothing of the title under which Robert Davis and hi$ 
 wife, the defendant, held the lands for which this suit is 
 brought, but he had often heard that Sarah Davis, and her 
 husband, lived on her father's plantation, and when Fran- 
 ces above named, died, she expressed a wish to be buried 
 alongside of her father, and was carried to Robert Davis' a 
 plantation, the lands for which this suit is brought, and 
 there buried; that Frances Peacock, above named, when 
 she married the brother of the deponent, was more than 
 twenty-one years of age. The plaintiff then offered in 
 evidence, by cross examining William Brewer, a witness 
 produced and sworn by the defendant, that he the witness 
 was aged about 73 years; that he had been acquainted 
 with the three daughters of Dailiel Paine above named, 
 
 O . ' 
 
 ever since he was six years old; that Paine had two other 
 daughters, Priscilla, who married and left no issue now 
 living, the other Jinn who died young and unmarried. 
 That he understood Elizabeth was the youngest of the 
 five daughters; that he had often heard his father say, that 
 Dimid Paine was an Englishman, who got the land in 
 question by his wife; that the four daughters were co-heirs, 
 and- got the larid by inheritance from their mother; that he 
 understood that Frances and Elizabeth lived in Culvert 
 county with a Mrs. Wilherson, a relation, till Sarah Da- 
 vis, her sister, married, when that happened he frequently 
 saw Elizabeth the youngest sister at Robert Davis* s, who 
 lived upon the land, and believes she lived sometimes with 
 her sister Davis, and sometimes with h.-r sister Peacock, 
 till she Elizabeth married William Davis. The plaintiff 
 then read certain entries from the parish registers for 
 All Hallows Parish, viz. ** Mary, the daughter of James, 
 and Sary Parnall his wife, was born the 9th day of April 
 1697, in the parish of All Hallows, and baptized the 25th 
 VOL. ii. 8
 
 CASKS T:> THE COUKT OF APPE A 
 
 1808 day of July 1G98. Pritcilla, daughter of /)i>>uV and 
 
 Pttnr. \\ns born Juno 1, 1714. -fl/r/n/, daughtr: 
 Daniel and Mary Pane, was born July 29, 1717. Sarah, 
 daughter of Dante! ami Mary Punr, was born May 24, 
 1720. Frances, daughter of Dunn I and Mary Paif 
 born Augu-t 21, 17-2-2." Tin* plaintifl' al>o |.;oved, tliat 
 the lands in question are situated in All IIuU<.>irs Parish. 
 Hi- ;ilso proved that Elizabeth, above named, who married 
 Jniltam Din-is, died about 1-2 or 14 years a*o, k'a\in^ 
 four children, Daniel her eldest son, ff'illiam, Robert and 
 J\far\/; that II illiam Damn, her husband, died soon after, 
 about 10 nr 12 years ago? that Daniel, the son, died in the 
 life-time of his father, leaving seven children, now alive, of 
 which the lessor of the plaintiff is the eldest. The defen- 
 dant then read to the court a patent granted to John 
 Jhewer on the 16th of February 1659, for 400 acres of 
 land, called "Itrcrccrstori, lying on the west side of 
 Chesapeake bay, and on the west side of a river in the 
 said bay. called Road River," &c. She also read to the 
 court a patent to Joxfph Brewer for 460 acres of land, 
 culled Bnu-erston, dated the 20th of March 1710. ThU 
 was a re?urvcy of the last above mentioned tract, devised 
 by Juhn Brewer to his two son?, // illiain and John; that. 
 John, the son, devised to Joseph his son. She also read 
 an entry in the rent rolls concerning the said land:-. 
 *' Brewerston^ patented to John Brewer the IGth da\ (.1 
 February 1659, lying in 4fe)M-jfran4M cotinty, on the 
 ^ide of Road Hiver, and containing 400 acres. On the 
 C(th of Marth 1710, a patent issued to Joacjih JJicwerfm 
 260 acres of land, lying in June Animlcl county, be inn * 
 tasurvey on one moiety of a tract called Brtwcmlon, origi- 
 nally granted to John Brewer for 400 acres." She then 
 produced a witm-s. // i Ilium lire ivcr, ayed about 73 year*, 
 who being duly sworn, deposed, in addition to what ha 
 been before slated, that ever since he was six ^<.u> >ld lie 
 A'. a- well acquainted with Robert Darin, and his \\ifc the 
 defendant; that when he fn>t knew them they lived upon 
 the lands for which thi* suit is brought, and after the mar- 
 rjage of Jt'il/iatn Dm-ii and Elizabeth Paine, before stat- 
 <M!, they, Rubert Davin, and -wrah his \\ilV, and no other 
 person whatever, possessed the san^, and that they con- 
 tinued so to possess the lands ever after, until Robert Da- 
 vit died, and that after he died, his wife, the defendant,
 
 OF MARYLAND.' 209 
 
 continued to do so till this time, and now does, and that 1808 
 jie the witness had lived all his life, and still lives, ad- ^J^ 
 joining the lands for which this suit is brought. The 
 plaintiff then prayed the opinion of the cburt, and their 
 direction to the jury, that if they are of opinion from the 
 evidence, that Daniel Payne and Mary Payne died seized 
 of the lands mentioned in the declaration, and find the 
 facts stated by the plaintift' to be true, yet although they 
 should also be of opinion that the facts stated by the de- 
 fendant are true, the pjaintilY is entitled to recover an un- 
 divided interest in the lanijs in the declaration mentioned. 
 
 Key and Johnson, for the Plaintiff. 
 
 Mason, for the Defendant, cited Esp. 459, and GHb< 
 L. E. 103, 104. 
 
 CHASE, Ch. J. The facts and circumstances disclosed 
 in evidence are not sufficient for the jury to presume a ti- 
 tle in the heirs of Parndl, or a deed to Parndl, against the 
 defendant, with sixty years possession. The entries on 
 the rent roll, should show a correspondent title. The 
 strongest presumption in this case, of a good title, is in 
 favour of the defendant. 
 
 The court are of- opinion, that the facts stated by the 
 plaintift', although the jury should find them to be true, are 
 not sufficient and legal evidence to warrant the jury in 
 finding that Daniel Payne and Mary Payne were seized of 
 the lands, and died seized thereof, in opposition t0 the 
 facts stated by the defendant, if the jury should find 
 them to be true. The court therefore refuse to give the 
 direction prayed. The plaintift' exceptedj and the ver- 
 dict and judgment being for the defendant, the plaintiff 
 appealed to this court. 
 
 At a former term the death of Sarah Davis, the then 
 appellee, was suggested, and her heirs, the now appellees^ 
 were peimitted to appear, &c. 
 
 The cause was argued before TILGHMAX, BUCHANAN^ 
 NICHOLSON, and GANTT, J. by 
 
 Johnson, (Attorney-General,) for the Appellant; and by 
 Martin, Ridgdy and T. Buchanan, for the Appellees, 
 
 JUDGMENT AFFIRMED.
 
 rtcorer 
 
 CASKS IN TIlKConti 
 
 LEVERING vs. BOND'S Adm'r. 
 
 ArPK.u. from the Cu-nenl Court. Tin- \v.s an n 
 of Tm\ the appellee. The plaintiff, at 
 
 trial at Mav term. 1H>\ read in evidence a rrcfi/il fniui 
 tr..""" 1%"" r"n the defendant, and one Lnnmon. since <!ere;i-,-<I. and 
 whom the defendant h..s survived. in the following v. 
 
 tnu on tor|f, 
 
 mut >,tuvii ihM <- "/iailimnrc, C7th Nov. Received irom Mr. 
 
 tut. il i ' IT r, 
 
 but ruiifiiiu r--,'i)Tj, fur account of Mr. M'iUlnm -V. Bond, eleven 1m n- 
 
 tuin it lor th< pv- 
 
 . u-v due j rc( j an( j thirty bushcle of corn. 
 
 to them frum the J 
 
 M'M^ m n *v 7 
 
 rt"r r J" a . th i . M- He also jjave in evidence, by the testimony of 
 i.1", '\SpetIding. the person by \\liomtliccorn in the receipt 
 
 u.p'i'ii' 1 ''"'' 1 )'"!"-'" mentioned was deliven-d. that tl\e delivery \\as made the 
 i of Xnveinber 1708, that the corn \\as tl.c properly 
 J'r""i l H.I.'.I ni of IViHiam S. Ilond, the plaimin''s intestate, by uhom it 
 
 Hi utim,.- was delivered to the witnes-. to be sold for the ,<l; 
 
 \i 10 M-;I Hi.- ML , 
 i,.- |. fi. ntr a but without any orders or authority to place it in tl 
 
 lii o tr 
 
 of any other person tVr sale, in case he could m : 
 of it hhnsejf. That not being able to sell the corn, l.c 
 placed it in the warehouse of Lcmmon $ Levering, \\!,o 
 were in the habit of receiving produce on . !>ut 
 
 wade no particular agreement with them relative to ti;e 
 amount .f storace to be paid, and pave them no orders or 
 authority to sell or dispose of the corn. lie also ^ave in 
 e\idence. tl,at \\ithin a few day-; after the date of the re- 
 ceipt, ami sc me tiire in tl.e month of November or De- 
 cember 1798, Pond st nt a person to demand the corn 
 from Lfminnn <$ Lererins:, in his name, \\ho made the de- 
 mand accordingly, and informed J.nnmon $ f.rvcring that 
 he was ready to pay the sto;a^c. a- -OMI as the corn should 
 be delivered. But that Lemmon $- Levering rr|:iM(l (o 
 deliver it, declaring that they would retain il for the ; 
 in-nt of a debt due them by 7>V,m/. The defendant < 
 read in evidence an account, which was admitted in evi- 
 dence by (lie plaintiff, for sundry articles sold and de- 
 livered by Lernmon fy L<> fttnnl and one .7,Vs. in 
 
 vh'uh account the corn is cirilitetl, nd leaxiti"- a l);ilance 
 
 O 
 
 due from Hand k ,-?ir#, to Lmnr.cn $ / . of 
 
 13 9 S. He a!>o ;ave in evidence. t!ia .7/r., in the ac- 
 rouni mentioned, had departed (his life before l! e lime of 
 delivering thn r in, and that ttoml was Mien indebted to 
 Ixmmon 4- Levering in the sum ot l'J17 13-4, as by tha
 
 OF MARYLAND. SO 4 
 
 account stated. The defendant then prayed the opinion 1808. 
 of the court, and their direction to the jury, that if they 
 shall be of opinion, from the evidence, and all the circum- 
 stances in proof, that the corn was delivered to Lemmon 
 <V /.- vering, to be applied by them to the credit of />'o/;?/, 
 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 JJond to the discharge of the debt 
 due from him to them, or was placed in their hands as 
 factors with authority to soil tin* same. The court there- 
 fore refuse to give the direction prayed. The defendant 
 exrepted; and the verdict and judgment being for the plain- 
 till', the defendant appealed to this court. 
 
 The case was argued before TILGIIMAN, BUCHANAN, 
 NICHOLSON and GAXTT, J. by 
 
 Harper, for the, .Appellant; and by 
 and AVy, for the Appellee. 
 
 JUDGMENT AFFIRMED. 
 
 HOPKINS vs. STUMP, et al. JUNK 
 
 APPEAL from a decree of the Court of Chancery, (Us- b e Tn' e fpMMn 'lii* 
 missing the bill of complaint. The bill filed in 1790 ^XV^hicii't^iZ 
 charges, among other things, that the defendants, Slump a^'timwf^m'i 
 
 the hill afterwards 
 dismissed Ly (be 
 
 romplniniint, who filed a tirw bill spniji't the sr-.t^o d< f -nfanf' 'o lOi'-nn 1 IT same ri-.ict' for which 
 i!i<- tiinnrr lii'l lu'.il It i n fi '(!"! '!' i Ml'.rn '>! iiK" i!i-f> i.<!:'i t, ,' !'<! ' y Unjitca, t IK-I cciicr, tin: I I he 
 UMiniony so '!>krn in Oit furnifr suit hr UTCIM i! 1 '1 r<-a(! in evi-.leace n t!ic n< \v suit 
 
 T'n ciuat of chancery will not tnforee a peulRting.<Urtract lor continental nioiuy. 1'cr Han- 
 son, C'lVMl 
 
 "i a bill in clmncery v.-i'l iirrvnil, ur.!cb5 refnlfd 1 y ilie ti>tiii.niiy of t\vo witnesses, or 
 of '" \vnnt-s with cqiiinii-.lt- elvcumstancei 
 
 i-(.(-cn<-! in n t nni n l-.cird uf cnnvt v-.inct Hs A >u> !i -in . - -tasi-; liii^It- in l.r sold un 
 
 a ft-ri j'arir.s, so as to plnc-r tin- |ninl:ni r in ilji- irc,m -.1 A: 
 
 \\hoilu-r in not Isnil is hovinilhy :; ji il^nu >.'. it i!" '. !i:i r. 'r.%t !iim, nnil 
 
 O'Jo.c i xccut-.iiii, A bena file iel!b la right <i> I!, tl,::t C. tin i^i.iiiufl', iiiiii'gii * Jteri /acias take 
 jnu tll it without in<iuiiiii or bii-Lini,- t'uv other propirt}? C'-'''e
 
 803 kSES JN THiB COURT- OF APPEAl 
 
 1808. ami Diil'am, beinu; sei/.cd in fee of a tract of land - 
 
 in iEfav/ontf county, sold a part thereof, (describm; it,} to 
 the other defendant, Patrick, and give him a bond for a 
 conveyance thereof to him ifi fee. That Patrick, at the 
 time of purcha-e, paid a con.-idei;!l>li' p.! it of tin 1 p;ircha>c 
 money, and gave his bond tor piiMnciit of the re>idue. 
 That \\hen the bond became due, Patrick tendered the 
 Mini of money iherrui mentioned to Jliitlum, a-jreeablv i 
 the acts of assembly in such case made, but /)<illc,n ret'n- 
 cd to receivp the same. The bill next slates, that a judg- 
 ment was obtained in flarford county court a_-;iii;.-t Pu- 
 trick, a fu ri facias issued thereon, which was laid on part 
 of the land purchased as aforesaid by him; afterwards a 
 renili'ioni crponas i.-Micd, and under it the land was sold, 
 and was purchased by one Patlison for the complainant, as 
 appeared by the deed of the sheriff executed to the com- 
 plainant, and accompanying the bill, That under execu- 
 tions, on other judgments against Patrick, the residue of 
 the land was sold to the complainant, who received the 
 sherifTs deed. 'I hjit Slvwp had afterwards received the 
 rents of the land, and after the sales made to the com- 
 plainant, Patrick, with a view of defrauding the complain- 
 ant, c^ve up the bond of conveyance to Si'jimp. That the 
 complainant had made application to Stuinp lor a COIIM-V- 
 ance of the lands. The bill prays that Slump may be 
 compelled to execute to the complainant a deed for the 
 lands. The defendants, Stump and DaUum, demurred 
 .illy to the bill, assigning for cause, that the bill did 
 not contain any matter of equity whereon the court of 
 < l.jnci TV could ground any decree, or give the coiupl^in- 
 ant any relief or assistance against the defendants. 
 
 -SON, Chancellor, (October term 1800.) The chan- 
 ccll' r uij'lerstiind.s that by a recent decision of the court 
 of appeal>( j, an n^iHtibic intcfist in lands may be sold 
 under a fieri fccM*, and that the purchaser stands in the 
 place of the de: .. law. He cannot otherwise than 
 
 i cmark, that this decision appear-, from transactions in 
 liiis court and in the land odice, agreeable to the opinion of 
 the late Chancellor Jtogers, as well as of the present 
 chancellor. 
 
 foj Campbell w. MorrU, 3 Ilurr. V M'1/cn. 5JJ.
 
 OF MARYLAND. 305 
 
 But \vhether or not the complainant, standing in (Itc 1808 
 iilace of Patrick, is entitled to a decree for vesting in him 
 a legal title, cannot appear, until the matters stated in hi? 
 bill are admitted, or denied, by the answer; and, if denied, 
 are established by proof. Decreed, that the demurrer be 
 overruled, and that the defendants, Stump and Dallum, 
 who put in the demurrer, be granted time until the thinf 
 Tuesday of February next to put in their answer to the 
 tll of the complainant. 
 
 The defendants answered, and commissions issued, and 
 testimony was taken and returned. 
 
 At December term 1803, the defendants, by their peti- 
 tion stated, that the complainant commenced, in the court 
 of chancery, a suit against them for the same cause, and 
 to obtain the same relief for which the present suit had 
 been instituted, and that, in the former cause, it xras sa 
 proceeded that answers were filed, and a commission is- 
 sued to examine witnesses, upon which a great number of 
 witnesses were examined, and their testimony returned to 
 the court, and that thereupon the cause was set down for 
 hearing, and the defendants were ready to show that the 
 complainant was not entitled to relief; but the complain- 
 ant dismissed his bill, and thereby prevented a hearing of 
 the cause. That several important witnesses, whose testi- 
 mony was returned in the former suit, are dead, and seve- 
 ral others removed out of this state to distant parts, so that 
 their testimony could not be had on the commissions is- 
 sued in the present suit. Prayer, that the depositions had 
 and taken in the former suit, so dismissed, shall be receiv- 
 ed and read in evidence at the hearing of the present 
 cause. 
 
 HAN-SON, Chancellor, was of opinion, that the defen- 
 dants were entitled to have their prayer granted; and it 
 "was accordingly ordered and decreed, that the depositions 
 in the cause heretofore dismissed, and mentioned in the 
 said petition, be received as evidence on the hearing of 
 this cause. 
 
 The testimony taken in the former suit was exhibited, 
 &c. and the cause was argued before the Chancellor, by 
 
 Scott and 7\ Buchanan, for the Complainant; and bv 
 
 Murfm,( Attorney General,) HoIUngsttirlh, and 
 /or the Defendants.
 
 301 v ISES IN niE COURT OF APPEA 
 
 TI\vM>\, Chancellor, (October term 180 -I.) On con- 
 
 tltt ;ind exhibit-;, \c. it 
 
 appear- to the chancellor, that he cannot grant the ; 
 of the bill without a violatim. .1 p< iiu ipies in this 
 
 c'.:i; '>! In ' place, the contract, (.1 
 
 v.hirh the complainant claims (he benefit, is uch a con- 
 it will not en- 
 force. It wa a spcci-'atinir contract for continental mo- 
 i. if 7'rt/nY/i- the pnrtv, instead of //'>/ikin, \\crc 
 complainant, this court would not enforce; and it is in;- 
 possible for any rational man 1o conceive, that an a^si^nee, 
 <T any p:': - m claiming in the place nf the pnrtij, shall 
 a hetlcr situation than y himself. But it 
 
 appears, th.> idea of the c.onipl linant that Slump, in whom 
 alone the le^al title no- - \\iHiri2; to perform the 
 
 contract, and so stipulated, but that aira; were 
 
 made to defeat or defraud the complainant. On this sub- 
 inant called on the defendant- tor full ex- 
 pin i' : bi!t the d< fVndan(> i;ave. liv tlioir an - 
 explicitly denied the chief important matioi- charged in 
 the hi 1 ,?. 
 
 There is no principle better established than this, that if 
 a dofiMidant be compelled to answer, whatever he s.: 
 oath shall prevail, unless refuted by the testimony of two 
 . or of one witness \\i;h equila!le circ'imstances. 
 ]lnt the testimony in this cae is nothing like such a refu- 
 tation of the answers nf the sovetal dei-ii'lants, notwith- 
 standin;; the strong pointed charges made by the complai- 
 
 <)n the demurrer, Iho chnnrelior Ions; since derided iii 
 the complainant"- I 'ar as this the court of ap- 
 
 peals havitis:, as he was informed, decided an equitable in- 
 to be liable to a furl fitrla.t. tin ho has at a 
 sale on a firri fadus p: an etpilable inte- 
 rest, .- ! of this court to sfive him the le- 
 ,;le. This is the ]! iin meaning i.f i : >e chancellor's 
 declaration, which however appears to have been mUun- 
 dcrs 
 
 It would socm li!,e\\i-e tV.at the complainant misunder- 
 
 , th" chancellor in another particular. Hut n< 
 son, arquaintod with li * or practice of (hi* 
 
 court. u uld roncei\e it the meaning of the chancellor. 
 that whatever matter stated in a bill is not denied.
 
 t)F MARYLAND. 
 
 be considered as admitted. No! If interrogatories stated. 1808 
 in a bill are not auswen'd, the complainant has a right to 
 vxcept to tiic answer, and if the interrogatories are proper, 
 the defendant will be compelled to answer plainly, fully 
 and explicitly. II then any material matter, charged in 
 the complainant's bill, lias been neither denied nor ad- 
 mitted by the answers, it stands on hearing of the rause 
 for nought. This assuredly every lawyer will admit. 
 
 And now let it be inquired, what is that equitable in- 
 terest which the court of appeals has said is liable to be 
 sold on a fieri facias? The chancellor does not fully un- 
 derstand it. But he readily conceives, that if A has pur- 
 chased land from 13, and paid for it. without receiving a 
 conveyance, or if B holds in trust for A, in either case A 
 has an interest liable to be taken and sold on a fieri facias, 
 and the purchaser is entitled to the aid of this court to 
 obtain the legal title. But if A has only contracted and 
 given his bond for the purchase money, and received, ia 
 return, a bond of conveyance, the chancellor questions, 
 whether A has such an equitable interest, as is liable to 
 be sold on a fieri facias, so as to place the purchaser in, 
 the room of A. If such be the meaning of the court of 
 appeals, the), in effect, say, that a cause of action or law 
 suit is liable to a fieri facias. In short, the chancellor is 
 inclined to think, that the meaning of the court of appeals 
 was, that if A has a complete equitable title to land, of 
 which the naked legal title is in B, the land is liable to a 
 fieri facias on a judgment against A. 
 
 The chancellor cannot conceive, that contracts for land, 
 which may be deemed to confer an equitable interest, are 
 so far bound by a judgment, as that, after the judgment, 
 and before a fieri fucic:-s, the parties cannot come to a set- 
 tlement For instance, A gives his bond to B for 810,000$ 
 the price of Black Jlcre, containing 500 acres. B gives 
 in return, his bond to A, in the penalty of 20^000, con- 
 ditioned for conveying the said land. These bonds are 
 both dated the 1st of January 1800. At May term 1802, 
 C obtains a judgment against A, for 810,000. In No- 
 vember of the same year, A and B agree to vacate the 
 contract, and afterwards C, takes out a fieri facias, is it 
 reasonable to suppose the law to be, that A had an equita- 
 ble 'interest, which being bound by the judgment of C, 
 coul'd not be given up; and that although A may have per- 
 YOL u 39
 
 806 CA?E* IN THE COURT OF APPEAL! 
 
 1808 sonal property, or laml, sufficient to satisfy the judgment, 
 C may insist on laying the execution on the contract? for 
 laying it on the land is laying it on the contract. No! 
 The impropriety of the iilea is glaring. Another doubt 
 Supposing equitable interests in, or mere contracts for, 
 land liable \ozfierifacias, at what time are these inte- 
 rests or contracts bound? Are they absolutely bound by 
 the date of the judgments? Or are they to be bound in 
 the same manner as personal property is bound, vi/.. from 
 the time only of delivering the writ to the sheriff? The 
 chancellor has always considered it a most important 
 question, never decided, (that he knows of,) whether or 
 not land is bound by a judgment, so far, as that if A has 
 a judgment against him, and before execution A bona 
 fide sells his right to B, C the plaintiff may, on fieri 
 facia*, take and sell it, without inquiring or seeking An- 
 other property. The chancellor is not appri/.ed of any 
 Opcision to this effect, if any such has been. But if ?uch 
 decision has taken place, although he certainly would go- 
 vern himself accordingly, he could not do otherwise than 
 question its propriety. 
 
 In England, whose laws we follow, lands were, long 
 since, bound by judgment; that is to say, if A, against 
 whom a judgment is obtained, has land, and, after the 
 judgment, conveys it, the plaintiff may, notwithstanding, 
 affect it by the writ of Elegit. 
 
 During our connexion with England, its parliament 
 passed an act, subjecting lands in America to be sold un- 
 der a fieri facias, in the same manner as personal proper- 
 ty, to satisfy judgments, obtained by subjects of Great 
 liritain. The act did not say a word respecting lands to 
 be bound from the time of the judgment j but it seems, 
 that moxl or many gentlemen of the bar entertain an idea, 
 that although personal properly is only bound by thr de- 
 livery of the writ, and Inndu are liable as personal proper- 
 ty, the lands arc bound from the time of the judgment, to- 
 be taken by fieri facias at any time afterwards. Sup- 
 posing the law to be so, and supposing contracts, as afore- 
 said, liable to fieri facias; that is to say, that the pur- 
 chaser under a fieri facia* is to be placed in the situation 
 <>f the defendant at law, the nature of Patrick's contract 
 is such, tliat, as the chancellor has already intimated, 
 ought not to be enforced, cveu if Patrick were the eo- 
 plainant, instead of
 
 OF MARYLAND. 80$ 
 
 1'lic counsel for the defendants has indeed alleged, that 1808 i 
 the chancellor's decision on the demurrer is grounded on ^~v~*. 
 a mistake, and that the court of appeals never has decided vs 
 
 Couway 
 
 an equitable interest to be liable to a fieri facias. If the 
 counsel be right, there is an end of the case at once. But 
 the chancellor cannot think that the counsel is right, but 
 laments that tribunals, whose decisions are to govern other 
 tribunals, do not give their opinions at large on every im- 
 port ant point. 
 
 The chancellor, as is his uniform practice, on every im- 
 portant point, has given his opinion pretty much at large. 
 lie might still perhaps be more explicit as well as full, but 
 he conceives that he has said enough. Decreed, that the 
 bill be dismissed. From this decree the complainant ap- 
 pealed to this court; and on the cause coming on to be ar- 
 gued, and the counsel for the parties declining to argue 
 the case, 
 
 BECREE AFFIRMED, NISI*. 
 
 POE vs. CONWAY'S Adm'r. JUNE." 
 
 APPEAL from Baltimore county court, rfssumpsit brought In . */>> fc^ 
 
 work and labour* 
 
 by the appellee on the 7th of April 1801, for work and ^ e s a ^ f ,/^: 
 labour, &c. performed by his intestate for Poe, the appel- *? '^? ,'^ c 
 lant, on the 4th of September 1798.. The act of limita- S.hftSM: 
 tions was pleaded; and at the trial the plaintiff, below of- 1*^^^ 
 fered testimony to prove an acknowledgment by the de- JSotftS^-S 
 fendant, that the intestate had performed work for him, ^"the^Tp^he 
 but that he had an account iri bar, and when a persoji who l!%n bou he c uid 
 
 it i ill have the business 
 
 was then up the bay should come to town, he would nave settled, was uffi- 
 
 , , n i i .1 , cient to dtfrnt the 
 
 the business settled. The defendant prayed the court to operation of the 
 
 .,.,,. , > &et of limitations* 
 
 direct the jury, that this testimony was not sufficient on 
 the pleadjngs 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. 
 
 / 
 Martin and Gwynn, for the Appellant* 
 
 Jlollingsivorth, for the Appellee. 
 
 JUDGMENT AFEIRJfED.
 
 goa IN T'tK roi'RT 
 
 J>.;<n\ N: \< . v>. M.uui.L. 
 
 Arrr.M. from Baltimore county rourf. JJr^ifvin for a 
 . bronchi by tiie appi'llei- au;.nnst the appellant. The 
 defendant below pleaded pi^j.-rly in himuf, and i 
 
 "lined. It WM agreed between^ the parties, that if the 
 byUw lor" hJV. , j'iry find the property of the horse, mentioned in the derla- 
 
 ol honri. Her. dor* . 
 
 'irth. \>UT- ration, to have been in the plaintm previ- below 
 
 chr to hold Hie 
 
 feme *>intt UK- stated, then the judgment shall be f<>r the plaint: 
 
 cUmi of the true 
 
 u ": r to the opinion of the court, upon the following case: \ 
 
 1 h-n- M no mar- 
 
 toert in ihu certain Samuel Johnson delivered the horse in question to 
 Richard Cuh-rncdl. a person duly authorised by the cor- 
 poration of Hallimorf to sell hordes at public s.ilo. On 
 VTedaetdaj the 20th of March 1790, Culwrwctt sold the 
 horse at the public market of the city of HallirnorC) in the 
 market- space established by law, to Hrotmin:*, the 
 fendant, between the hours of ten and eleven o'clock of 
 the forenoon; Wednesday brin'; the public market day <>l 
 the said market-space. Bron I Cn/rr. 
 
 for the horse, fairly and hi) . and without any. 
 
 knowledge that the horse belonged to any oi!i"r pr; 
 than the person \vho had then sold him; :yul the ; 
 market tolls, and other duties t;> be complied with a 
 bly to the regulations of the market in the said sale, wx-re 
 discharged. I'cfJici for the plaintilV; and the court g 
 yi'l'^ment on the c;i-e stated and verdict, for the plaintiff. 
 From that judgment the defendant appealed to this court. 
 
 The case was argued before TILGHMAN, J'. aud 
 
 GANTT, J. 
 
 Martin, for the Appellant. The question is how far 
 property in the hands of a bnnu fule purchaser shall bo 
 protected? At common law it is clear, that a pu;. 
 of property in public places, markets-overt, is pro 
 
 Uv tin- c'l-toin of JMII-' d:iv is a public d. 
 
 9 , m m \ 
 
 the sale of ^noi!-, &c. and the purc!ia>Lj- is protected in 
 
 his purchase. Every article sold during the hours for 
 
 sellinL' in shops in London, i> legally sold, if i 
 
 cle usually sold in uch shop. It is by the common law, 
 
 thatini-\n\ thing sold in market-overt, the purch. 
 
 j)r.tected, and it is not confined -.olely to the city of La~ 
 
 don undi-r the custom of that lity. The statute 
 
 TIJ Mil, c/i. 11, makes an alteration of the common law;
 
 OF MARYLAND. 309. 
 
 and if property is stolen, and the thief is prosecuted to 1308. 
 conviction, then the party has a right to recover his pro- 
 |>erty from a bona fide purchaser. But to recover, he 
 must proceed to the conviction of the thief, and can only 
 recover of him 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. Jlorwood 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 oc 
 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 
 rnay get him to market sooner than h.e 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 and man must soon be at an end; and there-* 
 fore 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 
 laarket 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 Lon- 
 don, applies to all large towns and cities. In Lomlon^ 
 every shop in which goods are exposed public! v to sale, i^ 
 market-overt, for such things only as the owner profiles 
 iu. But if goods are stolen, und sold out of
 
 310 CASES IN THE COURT OF API'K.u i 
 
 180R. market overt, the owner's property is not altered, and he 
 may take them wherever ho find* them, provide-l lie MM-= 
 duo diligence in prosecuting tlje thief to conviction, 
 likewise, if the buyer knows the properly not to be in the 
 seller, or there be any other fraud in the transaction. If a 
 (nan buys his orvn goods in a liur or market, the contract of 
 
 -hull not bind him, so that he shall render the ; 
 unless the property had been previously altered by a 
 forme r >ale. But it is s:iid that there is one spt- 
 
 iiitl chattels, in which the property is not ca>ilv 
 altered by sale, without the express consent of the 
 r.Mn-r, and those are horses, unless bought in a fair 
 or market-overt, according to the directions of the statutes 
 
 S- M. ch. 7, and 31 Eliz. ch. 12. Nor shall such 
 
 lake awaj the property of the owner, if within a 
 particular time after the horse is stolen he puts in hi> 
 < him, and proves his property, and tenders to the pur- 
 
 r such price as he bpnafule paid for him in market- 
 overt. That if any of the points stated in the above sta- 
 tutes 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 
 Jloru'ood 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 them in trover from the person 
 -\\hopurcfiasedthem inmarket r overf, and sold them again 
 before conviction, notwithstanding the owner gave him no- 
 lice of the robbery while they were in his posse-.Mon. In 
 i2 n'aoilcsori** Lectures, 412, it is said, that by a 
 the property is sometimes transferred. For in a sale in 
 open market it is good. The owner may get his property 
 Ly pni>ei-uiiii the thief to conviction. If goods stolen arc 
 ;jrattiitousl\ ^iven away it is diHbrent. They must be sold. 
 JIunlic. A. /;. 349. It is said in 2 tfzvnVa Maritime^ 
 Luit; ot)fJ, (note of the translator,) that th** general rule 
 in England has always been, that good-, taken by pirates, 
 as well as goods stolen on land, remained the property of 
 the original owner, in whom they ;;_.iin \et on the con- 
 viction of the offender, unless they have been sold in mar- 
 ket-overt. This exception of sales of stolen goods in mar- 
 ket-overt, is peculiar to England, and was made for the 
 convenience and security of public trade and commerce. 
 (Ibid 238,) tu^t the laws of war give the victor the
 
 OF MARYLAND. 3ii 
 
 full right of property in the goods taken from an enemy; 1808 
 and if he sells them, the former owner cannot reclaim l ^~~' s 
 them, though he finds them in a neutral 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 but 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 sucli 
 statutes as had been introduced and practised under as ap- 
 plicable 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 horse?, should ex- 
 tend to this country. By these statutes, the common law- 
 was altered before the colonization of the country; and 
 the common la\\% which we are entitled to, is that 
 common law which was in existence at the time of 
 colonization. These statutes clearly changed the com- 
 mon law, and if so, the sale of horses by those sta- 
 tutes was exempted, except in ft 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 \vas not a valid one; and if the statutes 
 of P. 4* Ai. and Eliz. are applicable to out- 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 1790, ch. 68, to pass any ordinance lo affect 
 persons, not citizens of flallimorc. Nor does the charter
 
 ( A-T.S IN TIII: COURT OF APPEALS 
 
 .my authority to cM;tljli>li a market fur the sale of 
 
 -: but udmiltini: such aiit!ioiit\ i- .i\rn, \et l>. 
 
 ,:1 authority, it v.as nut competent for the corporation, 
 by any ordinance, to aflect any pei -on not a citizen (if 
 that city. Having a limited jurisdiction, there v 
 authority deiriratrd to e-tublish a inaiket 
 affect per-ons not within their jnri-dution. The ci. 
 of a market-overt due* not ol coi;r-e -i\c a ri^lit t 
 horse? It may give penni-*ion to sell proxl-lm-. The 
 inarki-t space in JiuliiiiKirr^ means a portion of ground 
 just by the market established for the sale of live - 
 &.c. A maiket -overt never attached to the erection of a 
 new maiket, but only to an old establi-hed maiket, where 
 the powers are given to hold a market-overt. It i- not to 
 be supposed that every market, establi.-hcd in the different 
 counties for the sale of provisions, d ).- imply that i 
 
 Id there. It appear- lh.it in London there can- 
 not be sold, in a jeweller's shop, any thing not usuallv 
 sold there. So in the market in Jictltimorc for the- sale of 
 ' contemplated, nor is it (o 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, &c. 
 at a different place from that at which the horse in ques- 
 tion was made. This act was only in existence for sex en 
 
 . and would not have been so long continued, if it 
 had been believed liiat stolen horse- n.i-i.t be sold, and the 
 right passei! by such sale. It may be conceded, that by 
 the cixil law the holder of property may sell, but it is de- 
 nied that this is the law cither in Great Jirilain or in this 
 state. It would be holding out inducements to persons to 
 steal property, and carry it to Baltimore for sale. Our 
 contain a better policy, they protect the citizens 
 It has been decided in H'hcflurig/it vs. 
 Depeyslcr, 1 Johns Hep. 471, that the /.'//-/Wi law, in 
 regard to sales in market -overt, is not applicable in the 
 state of - v J /< "l,i re Jio such institution exists. 
 Nor i- it applicable in this state; and if it is _the Bj 
 this case would not be legal.
 
 OP MARYLAND; sis 
 
 Martin, in reply. The opinion delivered by Kent, 1808. 
 Ch. J. in Wheelwright vs. Depeuster. was extra iudici- ' / -' 
 
 _* Browning 
 
 a/; for the iudge acknowledged that the eftect of a pur- 
 
 Magill 
 
 chase in market-overt was riot strictly before the court. 
 The question before this court is, what is the common law 
 of England as to markets-overt; and if there be any com- 
 mon law on the subject, has it been adopted in this state? 
 Caveat. Emptor is not the rule a* to the personal property^ 
 but it is as to real property. Possession of personal pro- 
 perty isprima 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 mar- 
 ket, 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 mar- 
 kets any tiling may be sold to supply the wants of the 
 people. Several acts of assembly passed establishing mar- 
 kets 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 per- 
 mitted to be there sold. The act of 1793, ch. 59, estab- 
 lished a market for the sale of live stock, &c. and it point- 
 ed out a different place where the market should be, be- 
 cause inconveniencies arose from the sale of live stock, 
 &c. in the other markets, where they had been sold be- 
 fore. 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 
 in one v, should be protected in his purchase. The original 
 owner is sufficiently protected if he prosecutes and con- 
 victs 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. 
 
 JUDGMENT A7FIHMKD.
 
 CASES IN THE COURT OF APPEAL? 
 SMITH, et al. vs. SMITH, et al. 
 
 APPEAL from the Court of Chancery. The bill filed by 
 the appellants stated that ff'illiam Cramlcll, being seized 
 in fee of a tract or tracts of land situate in .> 
 
 4ij*n ATM. dei- county, did, by his will dated in 1793, devise the same iu 
 eq uiir dmded t>< - fee tail general to HHUani Cramlu'l, of ."Maw, and to H'il- 
 e-s we and Ham Smith: and in case the said // illiam Crandell should 
 
 S, 10 ibrrn nd . 
 
 ^ e w ' tuou ^ kwfirf issue, then he devised one half of the 
 l**'l to nis nephew Gilbert Smith. The devise is as fol- 
 lows: *'I J ev i se am l bequeath unto my dear wife Emdia, 
 r"ffcw! during her widowhood, all my tract of land known by the 
 of Grammer's Parrot, and at the day of her death 
 
 ithou"ia u . or marriage, t leave the above mentioned tract of land to 
 
 ful it.uc, thr estate , .. . . . . it--;/- 
 
 tu. br*mt -rxiinct be equally divided between my two nephews, William 
 
 nil ih* lini'tiiii- it, .1,. o i 
 
 onutrrtnusicmk Crandell. son of Adam, and William Smith, to them and 
 
 efft c i. a nil on<- root- 
 
 njr u i ih. i.ndi || ie | r heirs for ever: and in case the above named William 
 
 .11 him in Tee 
 
 '"rh'e'aet o i-'f. ^ rant ^ ( ' ies witliout lawful issue, then I give one half of 
 c* , u> dirrci d, - t j ie a^vc mentioned tract of land to mv nephew Gilbert 
 
 VCBDf M CMMCi 
 
 for r t ( ^i'riit a i"e SmMh to him and his heirs for ever." The testator died 
 toV^Tulur I" "he shortly after the date of the will, without changing or re- 
 ^"eli'in^i* mu?! voking it; and a few years thereafter, both the devisees 
 dlt'crndiMe^io''.!! died minors, and without issue. The testator had no issue, 
 trimi" iiTuii nd but had one brother and sister of the whole blood, and one 
 . **" brother of the half blowl. The brother of the whole blood 
 was named Adam Cram/e//, who died before the testator, 
 leaving two children Jl illiam, the devisee, and Sarah, the 
 last of whom died a minor, and without issue. Sarah, the 
 sister of the testator of the whole blood, married one Na- 
 than Smith, by whom she had five children, viz. the com- 
 plainantsi Elizabeth and Sarah, and Gilbert Smith, the per- 
 son named in the will, and Hannah and Sophia Smith, (mi- 
 nors,) the defendants. The complainants stated in their bill, 
 that they were advised, that on the above facts, the dis- 
 position over to Gilbert Smith was void, and that all the 
 property devised to the two devisees, had descended to or 
 devolved on them by virtue of the act of descents) but 
 that on account of the minority of two of the heirs, a ^alr 
 or division could only be effected in this court. They also 
 stated, that William Cntivldl, the devisee, was sei/.fd in 
 fee of other land, which, on the above facts, descended aa 
 before stated; and that the land could only be sold or 
 divided by this court. Prayer for a sale of Die land-, or
 
 OF MARYLAND. 315 
 
 a partition thereof, as on a consideration of all circum- 1808 
 stances should seem most advisable, &c. Upon the coming V- ^^"* 
 in of the answers of the defendants, which admitted the 
 
 o rim t& 
 
 facts as to the descent, the defendant, Gilbert, submitted 
 the legal construction and operation of the will to the 
 chancellor, and he, in pursuance of the act of 1806, cA.55, 
 requested the opinion of the honourable Jeremiah Toivnlcy 
 Chase, Chief Judge of the third judicial district, on the 
 question, "Whether the disposition over to Gilbert Smith 
 was void, so as to leave the land to descend to the five 
 heirs ot Sarah Smith, as alleged in the bill; or whether j 
 by the death of William Cranddt, of Mam, without law- 
 ful issue, the devise of half the land to Gilbert Smith was 
 effectual to give him a title thereto, or, (according to the 
 question raised by the counsel for the complainants,) whether 
 the devise took effect immediately on the death of William 
 Crandell, or whether the land descended to the whole of 
 the heirs of William Crandell?" 
 
 UpDn this submission and request, the question was ar- 
 gued before Judge Chase. 
 
 Johnson, (Attorney General,) for the complainants. 
 The only question in this case is, whether an estate tail 
 general, created since the year 1788, when the act to di- 
 rect descents, (1786, ch. 45,) took eft'ect remainder in 
 tail, will, on the death of the first tenant in tail, desceno\ 
 to his collateral heirs, or whether, on the death of the te- 
 nant without issue, and without docking the entail, the 
 right of the remainder-man will take effect in possession? 
 The case is this land is devised to William Crandell, and, 
 in case he dies without issue, thea to Gilbert Smith. 
 Crandell died without issue, but leaving other heirs besides 
 Gilbert Smith, capable of inheriting under the act to di- 
 xect descents, if he had had the fee simple. But he only 
 held an estate tail Are then those heirs, who could have 
 inherited if he had died seized in fee, entitled to any part 
 of the estate tail, or will the property go over to the re- 
 mainder man, Gilbert Smith? Previous to the act to di- 
 rect descents, it is clear none but the issue of the tenant 
 in tail could inherit; if there were no issue, the remainder 
 would take eft'ect. It is plain and evident the will gave 
 an estate tail general to William Crandell; for in all cases 
 where the issue generally, that is male or female, can in-
 
 316 CASK? IN THE COURT OF AITFAT S 
 
 1808 hcrit tin' estate tail, there it is an estate tail penera!, 
 t - v ' whether tli ere is a limitation over or not. 'I'o prove this 
 
 Smith 
 
 authorities are not necessary. If then William Crandell 
 )i;ul an estate tail jjcneial, < n l.i- death vim \\ttc iiitit'< 
 By the act to direct dements, it is e\| i ctrd, if 
 
 any person Vm-d in fee or of a f.e fail xnnri:!, sK-.ll die 
 intestate, the land shall descend as in ihe ;:i i | ic-uincd. 
 The subsequent clauses in the act declan. il at v I ;i 
 previously enacted vith respect to tl.e li-.nd ii. t;,li, shall 
 not extend to any estate tail, ii.aile, created ami in /<i>i^', 
 before the passage of the act. The reverse of the propo- 
 sition is equally true, that the provisioi - 'ing 
 the estates tail tnaile. created and in bcinx, afler the 
 passage of the act, shall be affected by its prmi -'. 
 But If illunn Crandell obtained an estate in tail general af- 
 ter the act, and therefore that estate is aftetted by the 
 act; and if this be true, vthich aj.| \ident. then 
 it follows, on his death intestate, the li.iJit he had in tho 
 land descended to those |nii- n -;n (.;;:illc .f inl\q- 
 riting by the act, and in the J.K-J ci tii i s linn i:t-\ided 
 for. Previous to this act none but tie is-i:e cmld inlu HL 
 an estate tail. As then the issue aloi e inheriieii 1 y ihe 
 provisions of pre-eNistinu law 4 *, and us tl.e le-i^Ltute in 
 1786, when the act to direct dest !!- diuaHy 
 competent to make other persons besides the iMie ca| alile 
 of inheriting, and a^ hy that la\\ tl i\ h;;\e done so to af- 
 fect cases commencing after i(> oj eiatii.n. it .-urely follows, 
 that those made capable <>! BO inheriting are entitled to ihe 
 respective portions of the land. If additional reasoning 
 was deemed necessary to -upport the above piinci| 1e., and 
 if any other part of the act need U usi itcu t< in j ici.t 'of 
 the construction contended IVr, tl.e A/.//// afc/i/-?; \\ill i- ake 
 it clear. That section C'KI^IO, tliat that la\\ shall i <.t 
 cxtentl to aftect any <:iant or cU\i>ec.l U.i.d n. >],< da/ or 
 particular heirs?* that is, t( ;.lin t ;:i \ .-/(/< /<.// >ji<il. 
 But the exception of the estate lull fy.tcio/j io\e> the i*;itfc 
 tail general to be included; for the ejueptH.n jn.us 
 the general rule. It iray be MIJJI-K! th; tail 
 general are embraced by it, si hi a- to let in all the 
 issue of the tc-i.ai t in ;iii. lit i (.t iu j:flm collal 
 rals. This intei pretatii n is . bie. For sm. 
 if the law \\as ci mj.etent to brinj- in v\ith the elde.-t t!io 
 boo ol Uie tcuaut in tail, it \\as ccjually
 
 OF MARYLAND. 
 
 t* introduce the collateral heirs, as persons capable of in- 1808 
 heriting the estate. The question then ts, has not -the act 
 done so? It provides that "if any person seized of au 
 estate in any lands, &c. in fee simple, or fee simple con- 
 ditional, heretofore or hereafter acquired, or of an estate 
 in fee tail to the heirs of the body generally, created anil 
 acquired after the commencement of the act, shall die in- 
 testate, such lands, &c. shall descend to the kindred, male 
 and female, in the following order, to wit: First to the 
 child ov children, and their descendants:, if any, equally, 
 and if no child or descendant, then to the father, and if no 
 father living, then to the brothers and sisters of the in- 
 tes'ate," &c. It is certain lhat this act .vas not prepared 
 with due reflection; for we find in the clause above in part 
 recited, a distinction made between estates in fee simple 
 conditional, and estates in tail general, the former, although 
 cr.eat.ed before the act, are operated on by it, the latter not; 
 and yet it is clear, at the time the law passed, there could 
 be no such thing as an estate in fee simple conditional. All 
 such estates were by the statute of Westminster converted 
 iuto estates tail either general or special. Aga.n, in the 
 same clause we find a provision made that lands, vyhicb, 
 have descended from the father to the son, shall, on the 
 death of the son without issue, go to the father; but it U 
 certain land could not descend to the son until the father 
 died, and if so, none but the maker of the, law can tell 
 how they could ever go back again to him. Co. Lilt. 19. 
 But let the act be ever so inaccurately drawn, yet when 
 the language is plain, its provision*-., however absurd, inusfc 
 tie carried into effect. Nothing then is more plain than 
 its language, which says, if the tenant in tail general shall 
 tlie intestate, vitbout leaving issue, or father, the land- 
 shall go to the brothers and sisters, and their descendants. 
 The course of descent pointed out by the act extends to 
 all the previous estates mentioned fee simple, fee simple 
 conditional, and fee tail general. From what part of the 
 act can it be inferred, \\hen in this part it is said they 
 shall descend in one general uniform manner without res- 
 pect to the previous estate, that the rules of descent pre- 
 scribed are confined in their full extent to one species of 
 estate, the fee simple? It does not declare where an estate 
 tail general is created after the act, if the tenant in tail 
 fhall fail to leave issue, that then the estate shall go to a
 
 S18 CA.-KS IN TI1K COURT OF API 
 
 1808 remainder -man r reversioner. On tlie contrary it - 
 ^ v-^ ' the. previous estate shall iot cease while persons r 
 
 ina'de capable of inheriting. Is it not certain the \vliolc 
 comprehends all iN part*? And as time are three kinds of 
 estate.-, fte simple, fee simple conditional, and fee tail 
 general, they are the respective parts of that whole on 
 which the law operates, and operates by declaring in cer- 
 tain events the brothers and si>ters may inherit. In the 
 case under consideration, these events did take place. 
 JJefore the. pa-sa^e of thi law, the tenant in tail could to- 
 tally defeat the remainder over. A deed executed by him 
 would have that effect. The deed obtains that effect by a 
 previous law. The act to direct descents only places his 
 interest in the power of more persons, by making more 
 persons capable of inheriting. If the legislature had the 
 right to do the one, they could do the other. They have 
 most clearly done the first, and it 13 equally evident they 
 have done the last. 
 
 Ridgely, for the Defendants. 
 
 CM\SF., Ch. J. certified the following opinion to the 
 Chancellor: On the question of law, submitted to my de- 
 cision by the honourable the chancellor, arising in thia. 
 case under the will of ff'il/iam Cnmdiil^ and the act to di- 
 rect descents, (1786, r/j. 46,) it appears to me that the 
 1rue construction of that act, as to estates tail general, cre- 
 ated and acquired after the commencement of it, is, that 
 the course or manner of transmitting the tenancy in tail 
 to the issue of the tenant, is altered or changed only by 
 making the land descendible to all the children of the te- 
 nant in tail, and their respective issue, indefinitely, and 
 rot the eldest son, in the first instance, in exclusion of the 
 other children. It could not be thn intention of the legis- 
 lature to abolish estates tail general, or remainders limit- 
 ed thereon, and to convert them into fee simple estates by 
 giving them the same properties 
 
 The words of the act must receive such an exposition as 
 they are capable of, and must be so construed as to cai i \ 
 into effect the evident intention of the legislature. That 
 part of the act which relates to the collateral relations of 
 the intestate, cannot apply to a tenancy in tail, because 
 such estate cannot, dcsceud to collaterals. As soon as the
 
 OF MARYLAND. 3(9 
 
 ienant in tail dies without issue, his estate and intererst in 1808. 
 the land ceases, and in the same instant the limitation 
 over, on the extinction of the estate tail, vests in the re- 
 mainder-man, and no estate remains in the tenant in tail, 
 which is transmissible to his collateral relations. 
 
 According to my judgment, it was not in the contempla- 
 tion of the general assembly to alter or change the nature 
 of an estate tail in any other respect than by making it 
 descendible to all the children, and this is plain from the 
 sixth section of the act. It certainly could not be con- 
 templated by the legislature to give the estate tail an exis- 
 tence after the failure of the issue of the tenant in tail, 
 contrary to the nature of the estate, and the words of the 
 grant, and in violation of the rights of the remainder-man. 
 
 The words of the law must be expounded according to 
 the subject matter, and that part which relates to collate- 
 ral relations must ex necessitate rei, be confined to estates 
 in fee simple, and cannot comprehend estates which have 
 no existence at the time of the decease of the intestate. 
 
 I am of opinion, in this case, as to a moiety of the land 
 devised by William Cranddl, that on the death of H'llliam 
 Crandell, of Jldam, one of the devisees, without lawful 
 issue, the estate tail became extinct, and the limitation 
 over to Gilbert Smith took effect, and one moiety of the 
 land vested in him in fee simple. 
 
 KILTY, Chancellor, thereupon passed the following de- 
 cree: The object of the bill in this cause is to obtain a de- 
 cree for the sale or partition of certain lands therein menti- 
 oned, which are alleged to have descended to, or devolved 
 on, the complainants and defendants, as the children of Sa- 
 rah Smith, who was the surviving sister of ft r illiam Cran- 
 dell, but which lands could not be sold or divided on ac- 
 count of the minority of two of the said heirs. ('The chan- 
 cellor here stated the facts of the case and then proceeded.) 
 
 After hearing the arguments of the counsel on the trial, 
 the chancellor considered it the most proper course to re- 
 quest the opinion of the chief judge of the third judicial 
 district, as he is empowered by law to do. And on this 
 request, and the answer thereto, which are among the pro- 
 ceedings, the opinion of the chief judge was declared as 
 follows: "As to a moiety of the land devised by ff Uliam
 
 3*0 I \-'- c IN 'HIK COURT OK APPKALS 
 
 1SOS. (V//, that on the death of Jf'illutm Owm/iV/, MM of 
 
 .. o'ir (.f tl:e di'vi.-i-es, without lawful U-ue, the es- 
 tate tail became e\:nn.t, ami (lie limitation over to (Hlbcrt 
 'i tt.ok effect, and one moiety of the laud vested in 
 him in fee -imple. " 
 
 fn conformily to the opinion thus expressed Decreed 
 liy t!ie chancellor, that tin- iompla;nanu are not entitled 
 1o :i -.air or parliii.m of that part of tin- land of If illiaHi 
 ("runtlt'H which by ll.e vili wasde\ised tu (I'd:, i ft Smith, 
 in ca-e 11'illitiin Crandrll thrrrin mentioned should die 
 wi'houf law ful issue, and that a decree for such sale or par- 
 tiiion onidif not to be made. 
 
 The decn-e <ios on to direct a sale of the other land. 
 The mmpl.ii:iant-< appealed* to tlii> t\)iirt. But tlie case 
 having been compromised, it was at the present IM-III, 
 
 ;:D. 
 
 AMD S3 vs. ROHINSOX cl ul. 
 
 from a decree of the Court of Chancery. The 
 t "^ bill in this rase xvas filed by the present appellant agnin>t 
 .,"#* Archibald Robinson, Abraham JarreK, and the admini>- 
 *,"';,';, ""'Uu'i'.^i'rators of Jfaljth Hand. It stated that the complainant 
 &TVtot ['i* ad been heri(T and collector of Ifarford county, and 
 un?u' l A i> R ? . r ro that he appointed Kobinson one of his deputies, who gave 
 Vi(i p.r'. r f\vi> l)'ii(U, one as deputy sheriff and the other as deputy 
 | 10 collector, conditioned for the faithful performance of iiis 
 Mm'in hiies: lint in the bond an deputy slieritV. Jtirrclt was his 
 
 bff te m'-nii ' , 
 
 M Afiv.ia hii - suretv, and in that as deputy collector Jta/ith liond \\as 
 
 V H. \ la-il 
 
 i< ii.dmr-n^ti.it | |13 suretv. I hat h'ctbinson navinwo-reatly defaulted in lug 
 
 id.- < ..-.\dfee . 
 
 !'itv. and beii)'' lanrely in arrear to the complainant, suits 
 
 II .', i<h in- 
 
 ? '" "" brought on both the bonds, and judgments ol>!:>ined 
 
 I ii , ii r li tin, muf 
 
 .,.uint him on each bond at March term 1790, fur a lai-e 
 
 t?5irtr' DO i\rr1 1 '! '," sum of money. Tliat Jhbinson, l)eiu_' MOBed :itid pos- 
 
 . ,-,-d ,f c.-n-i.leral.le real and pei - nd for the 
 
 ! fraudulently drceivin-j and injuiin^ the cm- 
 
 '.'"!,, U ,i!. t plainant, a few day- brf.ire the obtenti..n of the judg- 
 
 1 ''' K . . i i i / i 
 
 , , IIHMIN a_aiiut him, conveyed his real estate to Jarretl and 
 
 nrfii. Prayrr for n ilisrlovin- oTtbrtntfU, lind Yc<uion of the dn it. und (r 
 
 ;c. In, Min-if 
 . .uin, mill ( llrii! ili.il ll 
 
 \ K, A j mill H B, or any vf 
 
 iL' .-., .. . :,.':.. ;. -.-,., .,1 |^; in ;, ui OjC fitt |iij.t, I!H.- .vim ul fii>ir.y du> ! H A.
 
 OF MARYLAND. 
 
 fiond, in fee simple, apparently and for the pretended 1808 
 consideration of 1 } 2PO, when in truth the conveyance was 
 executed \vit!iotit consideration of money, and intended to 
 guarantee and indemnify Jarrcff and Bond as sureties in 
 the said bonds, who have never been damnified, or paid the 
 complainant any thing on account of Rob'mwn, but hold 
 and enjoy the real estate, and also the personal property 
 of Robinson, also conveyed to them since the judgments* 
 as a further indemnity. That they have permitted Ro- 
 binson to sell part of the personal estate for his own use 
 and benefit, &c." Prayer for a disclosure of the trusts^ 
 and vacation of the deeds, &c. and for general relief. 
 
 The answers of the defendants admit that the deeds 
 were executed for the purpose of indemnifying and securing 
 Jarrett and Bond, as securities for Robinson. That Jar- 
 reft had become Robinson's surety to other persons, and 
 he had a claim against him also on an open account, and 
 for money lent, and the conveyances were not only to se- 
 cure him as surety to the complainant, but also to secure 
 the payment of the money due, or for which he was so an- 
 swerable, to other persons. That the defendants were 
 ready and willing that the property should be sold, and 
 the proceeds applied to the discharge of the claims due 
 Jar reft and Bond, and the residue to discharge Robinson's 
 debts. The answers also stated, that Robinson was pre- 
 vailed upon to confess judgments upon the terms of all 
 payments and discounts made appear, to be allowed, and 
 which the complainant now refused to allow, and that they 
 can prove, that but a small sum of money, if any, is due 
 on the judgments, upon a fair and just settlement. 
 
 Testimony was taken under a commission as to the 
 amount due to the complainant, and the account was au- 
 dited by the auditor, stating the sum of <395 6 8, car- 
 rent money, exclusive of interest, to be due to the complai- 
 nant, and 148 18 10 current money, exclusive of in- 
 terest, due to Jarreti from Robinson. 
 
 IIvvsox, Chancellor, (December term 1804.) When 
 a. man becomes security for another, and is answerable for 
 his debt, the chancellor cannot conceive there is any fraud 
 in the principal's conveying property to secure him, and 
 likewise to secure the payment of any advances that may 
 be afterwards made by the security. In short, the chan* 
 
 VOL II 41
 
 CA?F.S IN THE COURT OF APPEALS 
 
 1808. Cell or doo* not perceive that the creditor, having t.> 
 ^'v ' surety for his debt, ha* a right to vacate any toii% rvalue 
 made to the surety by the princi; .al fur the nui i. 
 
 Bobiomi - 
 
 counter security. Ihe BI t nation 01 Inc surety vumlil be 
 haul if the rule were otherwise. The circumstance of the 
 sureties afterwards becoming insolvent, roppottng (hat to 
 be fairly a part of the case, which it i* not, the chancellor 
 conceives has no effect on the case. But inasmuch as the 
 surety, to whom the conveyance is made, is ansuerable to 
 the principal, and is to be considered as trustee to the 
 principal for any surplus remaining after the surety is se- 
 cured, and the law gives a recourse to the equitable in- 
 terest of a man against whom a judgment has been ob- 
 tained, the chancellor is of opinion, and it is adjud. 
 ordered and decreed, that the land conveyed to the defen- 
 dant, Abraham Jarrett, as stated in the bill, be sold for 
 the purpose of paying, in the first place, the debt due from 
 Robinson to Jarrett, and then to discharge the debt due to 
 the complainant; the said debts bein-; established, or to be 
 established, by this court. That John Moore*. r-|uire, 
 be and he is hereby appointed trustee for making n] 
 From this decree the complainant appealed to this court. 
 
 The cause was argued before POLK, BUCHANAN, and 
 NICHOLSON, J. by 
 
 Itidgcly, Key and T. Buchanan, for the Appellant; and 
 by 
 
 Johnson, (Attorney General) for the Appellees. 
 
 TIIK COURT reversed the decree of the court of chancery, 
 with cost?; and decreed that the land and personal proper- 
 ty conveyed to Jarrett and Bond, by Itolwson, in the bill 
 of complaint, together with the increase, if anv. of the 
 personal property \\hich remained in the hands of the ap- 
 pellees, or any of them, be sold under the direction of the 
 court of chancery, for the purpose of paunn, in the lust 
 place, the debt due from Kubinson to the appellant, 
 amounting to the sum of JL 1 I \ I 11, current money, ad- 
 judged and decreed by this court to be due to the ap- 
 pellant, with interest from the 7th of July 1808, un- 
 til paid, and also the complainant's co-K in the court of 
 chancery. AU<> d-uTrd, that the chancellor appoint a 
 *. the purpose of making sale of the -aid i< al 
 and personal property, and that the course and mam
 
 OF MARYLAND. 
 
 Jus proceedings shall be pursuant to the directions of the 1808 
 chancellor in that respect; and also that the chancellor 
 pass such order and decree in the pr- mines as may be ne- 
 cessary for carrying this decree into full effect. 
 
 DECREE REVERSED. 
 
 NEGRO CATO vs. HOWARD. JUNE," 
 
 APPEAL from Afontgomtrv county court. This was a A s ave sold h ? 
 
 J paiol for a term 
 
 petition for freedom, preferred by the appellant. At the^^^J^^'j. 1 
 trial he ottered evidence to the jury to prove, that in Junua- JJJS^^SeSlfS 
 ry 1793, Nathan Harris was the owner of the petitioner j^' yw"h**w 
 that by parol he sold him to Jesse Harris in that year, for {he 1 "*"^!"" 1 ' At 
 seven years, for G5, and that at the end of that time the ,','me "hi wnIi"J 
 petitioner was to be free. Jesse and Nathan Harris, at ^S^w^BeU, 
 the time of the sale of the petitioner, did agree by parol, J^. lUe s '* vu WM 
 and it was part of the bargain, that Jesse should at the 
 end of seven years, from the time of the sale, or sooner if 
 he pleased to do so, manumit and set the petitioner free. 
 The petitioner was delivered by Nathan to Jesse, and 
 served Jesse until about the month of January 1799. la 
 February 1799, Nathan, \yithout the consent of Jesse, 
 sold the petitioner as a slave to Howard^ who soon after 
 took the petitioner into his custody as a slave, and still 
 holds him as such. On the 2cl of March 1799, Jesse exe- 
 cuted a deed of manumission of the petitioner, which was 
 duly acknowledged and recorded. Nathan, after his sale 
 to Jesse, several times declared that he had no right to the 
 petitioner, and that Jesse was the person who was to set 
 him free. On these facts the petitioner prayed the opinion 
 of the court, and their instruction to the jury, that if they 
 were of opinion from the evidence, that Jesse Harris pur- 
 chased the petitioner from Nathan Harris in the year 1795, 
 for seven years, and that it was part of the terms of sale 
 and purchase, that Jesse should, at the end of seven years 
 or sooner, if he chose to do so, set free and manumit the 
 petitioner, that the petitioner was entitled to his freedom 
 for life by the aforesaid deed of manumission, if the 
 petitioner was, at the time of the execution of that deed, 
 of healthy constitution and sound in mind and body, and 
 capable by labour to procure sufficient food and raiment, 
 with other requisite necessaries of lite, and was uot more
 
 CA^K> IN TIIK COURT Of .Mi i ALS 
 
 1B08 than tW'v !i\c \rais I a-e. But ll,e lourt, (Cl,-ztft t 
 C'h. J.; a- of (>|)iiiii-n, and so in.-iiiicteil tin- jm\, ll.at 
 if thrv should find that the sale and | .urchase hcuu-r 
 than and ./me //arm, \\;is ;<s ;ih \r stated, tlial the peti- 
 tioner is not entitled to lieeuuin unm-r the deed of inanu- 
 ini ion. 'J he j.etiiiotier i-M|Ui,: .,1,1! i!,- \erditt and 
 judgment beiii against Dim, he appealed to tin* mint. 
 
 The cause was argued before TILGHMAN, I'UI.K, and Bu- 
 ( H \\\N, J. by 
 
 Martin, for ihc Appellant, and by 
 Mason, for the Appellee. 
 
 JUDGM1.M ItKVfcltStD, AND PROCEDEXDO AWAJIDE0. 
 
 HUGHES vs. O'DOXNKLL. 
 
 t>i< imr. APPEAI. from Baltimore COIU^N ( i mt. 'I !.i- v.as an ac- 
 
 - pi in- 
 
 ^' ' <IOM "" l '" ' N i;il| -i'-u tl; (i | i-iimli, 
 
 au'd" 'n a ri >e " ce ') to ^ c ta ^ e " '" execution, and falH 
 "' bu'i on a judgment which hau been t;i- i. 'Ihc ^me- 
 
 lLSV^ i^ was pleaded. 
 
 ''*?'*"'$ I- The plaintiff, at the trial, oflem! in exideiuea rc- 
 T > iJrncr C< tha"\ > hL- cord ol a judgment, and procefdlBg* thereon, in a Miit 
 iiitofi'/i" 1 to "ar \vheiein the defendant (nou appellant.) \\;i. plaintill. 
 the pi"in iff I^H'.I the plaintiH, (the iii i ellee.) \\a- ci ii i. .-.i '. ~i titi- liith, 
 
 l.kl KI.I.I ,\ . tu- _ 
 
 twn <.H ii.e JU .: K that at Mav term IbOO, a jud&meni vas icn vered in the 
 
 ti.i nt lor on) l- 
 
 Uiwrtnu.i, n.u-i.t general court, by the thin ihnntifl, for 11 10 4 cmirnt 
 
 U ii luaiiy due * 
 
 Uunou. money d 30 and 1565 Ibs. ol tobano, 
 
 costs. That on the Sd ol Ftbiuarv lb(<l, a c< 
 sued on the judgn.ent, and v. ;is Mi\-d on (he thru i.. 
 dant. The plaintill also ofi- red in e\idrtue tin- fi.llnwing 
 receipt of Ztbulon ffotKngtUfOrih, e.-quiie, attcrmv tor 
 the plaintiff in the judgment, to prove it.- pavn.rni and 
 satisfaction: "-1th An.u>'-t IMd. I ha\c i!,i> i'a\ UKAM! 
 of John O'Donnell, esjuiic, i!.i -um ol < i.r I.M.iiicii ;unl 
 forty r oun d s one shilliii" and ten jn.ie, in lull ol the 
 \vithin judgment. 
 
 Z. //f.-//i/-.v?/Y.r//:, Att'v. fcr ('. /.'unties. 99 
 The defendant then (,fli ml to -hi.v, that the ab<:.\e rc- 
 
 -'.ike fin- ;i |i-.s Mini <.f ii.oi;ry l! ail 
 
 due ou the judiut:.l. liut the court v tie of I'n.i
 
 OF MARYLAND. 325 
 
 that the receipt was conclusive evidence that the judgment 1808 
 v.us satisfied, so f;ir as to r.revent the plaintiff therein v v ' 
 
 Hughe* 
 
 from issuing any execution lor any balance that might in * , 
 
 f J O'DouweJI 
 
 fact be due. The defendant excepted. 
 
 2. The plaini iff further offered in evidence, that the 
 defendant in this cause, notwithstanding the receipt, and 
 the notice thereof, ordered an execution to issue for the 
 vhole amount of the judgment, without endorsing thereon 
 the sum of money so lecthtd on account thereof, and di- 
 rected the whole amount to be executed for. The defen- 
 dant then moved the court to direct the jury, that not- 
 withstanding the receipt, if there was any balance due on 
 the judgment, that the plaintiff in the judgment might 
 take out an execution for ihe same. But the court was of 
 opinion that the receipt, purporting to be in lull of the 
 judgment, Hughes was so far bound thereby that he could 
 not take out execution for any balance which might be ac- 
 tually due. The defcntiant excepted. The verdict and 
 judgment being lor the plaintiff, this appeal was brought 
 by the defendant. 
 
 The case was argued before TILGHMAN, BUCHANAN, and 
 GANTT, J. by 
 
 Harper, for the Appellant. The receipt in this case, 
 though expressed to be in full of the judgment, was not 
 RO, and not being so, was not conclusive satisfaction of 
 the judgment, and an execution might issue for the ba- 
 lance, 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 judg- 
 ment is entered, and he has no right to enter the judg- 
 ment satisfied, when in fact it is not so. He may per- 
 haps 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 gots so far as to say that 
 tle attorney may enter the judgment satisfied, and the 
 plaintiff is bound by it. It has been decided that an exe- 
 cution is not rendered illegal if it has not an endorsement 
 of the amount actually clue. The sheriff i, not bound to
 
 326 CASE? IN THE COURT 0? AITK U,> 
 
 1808. execute (lie writ without such endorsement; boifct mav 
 
 do M> if lie pleases. Jhtcunl\s. The Livy L'mttt, 1 llarr. 
 4- Jo/ins. 566. 
 
 / n-ittnce and S. TArr.sc, jr. for the Appellee. If the 
 principal himself had received the money, ami .U/IUM. 
 ceipt in lull of the judgment, he could not i->ue ;i:. 
 cution thereon, un!e hi- h;ul given notice of ti 
 If llie attorney enters, a judgment satisfied, the plaintiff is 
 bound by it. lie has his temedy again-t the attorney, but 
 cannot go against the defendant. Ihe authority ;:i:d ex- 
 tent of the powers of an attorney are fully laid down and 
 recognized in the following authorities: Latin h n>. I'unlu- 
 runlc, 1 Salk. 86. Lamb vs. ll'iiliams, Ibid 89. / 
 ra. Litlle, 1 II'. ItlL 8. ll'elsh vs. Hole, 1 Doug. 238. 
 1 Roll. M. 21)1,/)/. 17, 0. 1 Hue. M. IBS. 1 
 In-.:. 40. Read vx J)v}n>n; 6 T. /.'. 561. Handle vs. 
 Fuller, Ibid 45G. Ormerod vs. Talc, 1 Eaxt, 464. There 
 \va> 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 whe- 
 ther it was a malicious .proceeding, and if so, to give da- 
 mages accordingly. It does not appear that the execution 
 issued for tli e balance. II any balance was due, it was 
 only ~l 1.9 9, which might have been settled in anotlu^ 
 vay. There might have been a preceding payment. The 
 appellant, with a full kiii.wli.d-e of the payment which 
 had been made, issued the execution fur the whole amount 
 for which the judgment had been rendered. This actiou 
 is fur a malicious prosecution of an execution; for \ 
 tiou-lv cai ippeUee to be Ukep in execution, and. 
 
 demanding a I;:: i <f money tlian was due; for au 
 
 abuse <it i M of tl.e court. It would be a d 
 
 iou> doctrine if a client could undo and destroy what hl> 
 attorney had clone. If an attorney i judgment 
 
 -uni of moiM y which his client might consider too 
 small, could In In in the judgment, and hi 
 
 new suit? The same principles pu\ail with i 
 the attorney as to all other kinds of a-ent-. II an attor- 
 
 !>u^es the interest of his client, he i- ai.>v.ria. 
 him. The receipt of the attorney was Millicient to a; 
 
 ,e clerk of the court to enter the jiid^men: 
 and it not being so entered, can make uo diii v
 
 OF MARYLAND. 327 
 
 Jnitting that the receipt did riot operate as an extinction of 1808. 
 the claim, yet it operated so far as to prevent an execution 
 from issuing. The appellant d'ul not issue the execution 
 upon the ground of a small balance being due, but he is- 
 sued 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. 
 
 Iiurprr, 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. 
 
 THE COURT dissented from the opinions expressed by 
 the court below, in both of the bills of exceptions. 
 
 JUDGMENT REVERSED, AND PROCEDENDO AWARDED. 
 
 RATRIE vs. SANDERS. Juxii 
 
 APPEAL from Montgomery county court. The appellant ,. w ''"-e Hie de.' 
 
 feurinnt WHS in pns> 
 
 brought an action of replevin against the appellee, for a ? e ', s ; ( ." Y "*> antl 
 
 Hiding a s':iv', for 
 
 negro slave called Jane, to which non cepit infra tres annos, t'' es v<-e "'. Oiree 
 
 * ? ' years antecedent o 
 
 and aclio non accrcvit infra tres annos, and property in the an^e",!,',', 1 ', 1 ,} 1 "" < < <- f - 
 defendant, were pleaded. The defendant, at the trial, ^e^oav,.-"}^ 
 prayed the court to direct the jury, that if they were oftfe*^ U w* 
 opinion from the evidence, that the, defendant had been in l^^JlersooE 
 the possession of Jane for the space of three years prior to SS^rty* 1 '!>e 
 
 .1 ,/ ,. f .1 -tiii- i i slave had hoen irt 
 
 the institution or this suit, holding her as his own proper- UK- phiimiir. ami 
 ty, that then the act of limitations was a bar to the plain- him ione<ilr a'u 
 tilTs action. But the court, (Cla-ett. Ch. J.) refused to "V, "who ".i'.'.i-ii^ 
 
 .. .. . tlmt lonn so!,l the 
 
 give the direction; but did direct theiury, that if thev were slave uxiit-d .f: !1( (. 
 
 . J an:; and alth(i B h 
 
 satisfied tliat the property in said slave was in the plaintiff, tli(< s " ;t w '' 
 
 ' ' .- within tluv 
 
 e years 
 
 . 
 
 aad that he lent her for an indefinite time to Joseph San- li ;"'. 11 .''" ' irae lhe 
 
 ]>:ai ;ii iff knew of 
 
 rfer.9, and during that loan Joseph Sanders sold her to the suth sale ' 
 defendant, that by the sale the defendant stood in the same 
 situation that Joseph Sanders had stood in, and <liat the act 
 of limitations did not begin to run against the plaintiff" un-
 
 ASES IN THE COITRT OF APPEALS 
 
 fil Iio knew of flu 1 salt 1 by J<isij>h Satnlrrx to 
 
 Tl.c defendant cs ,-ptcil; and the verdict ami jiul^iucut be- 
 
 ing against him, he brought the present appeal. 
 
 The is argued before TILGHMAN, POLK, and 
 
 BlTH VXAN, J. 
 
 A*//< for the Appellant, referred to the act of 1715 f 
 tti. 23, s. 2. 
 
 , fur the Appellee. 
 
 JUDGMENT REVERSED, AND PHOCEDENDO AWARDED. 
 
 DEC. (E. S.) GHAY and BIDDLE vs. WOOD, et vx. 
 
 r m",i. ", r v Bn nut*. APPEAL from Cecil county court. An action of assump- 
 ,' // \\as brought in the names of the appellees, for tin 
 
 , '.,','.' ! of />-,>j<nn!,i Xfui/ff,; upon a promissory note dated the 
 
 i January iSill, executed by the appellants, an. I pa\a- 
 tauir<evIi*Hi* m n ble on demand to Elizabeth, (the female appellee.) \\hil.st 
 .!i>, by the name of Elizabeth Hugg, or order. 
 
 4urw;iUMit . ill 
 
 I lie giMierai i^sue was pleaded. 
 
 i 
 
 ju-d iij \jems air l. At t.ic trial, the original note was produced by the 
 
 till* ltd 
 
 plaintiffs in support of their action, and then- ppearing a 
 blank cndorsemi-nT in the name of tlie payee, Elizabeth 
 .//i/.-.'-.ir. whicii the dd'enda-its proved to be her hand writing, 
 the defendanis in-i>ted tliat the note as transferred by 
 the endorsement to /irnjamin X/ui/frr, of which the insti- 
 tution of the Miit for his use \va an e\idci!tr. Tl de- 
 fendants al>o olVered testimony to show, that at the time 
 this endorsement v.as made, Shn/hr paid a valuable consi- 
 deration fur the note to Elizalnlh llui::s, \\itha view to 
 contend that the whole interest of the payee, in the note 
 passed to Shn/ttr, and that the action ouht to have ln-en 
 in his name as endorsee. But the court. [_Tili;hiium, (. h. 
 J. and 1'iirnilL A. J.) relused to let the testimony go to 
 the jurv. ami \st-n- uf opiniim that the same was inadmis- 
 sible. The defendant excepted. 
 
 2. The plaintilVs then called (he labscriblDg witness to 
 the note, to prove the execution of it, who proved that the 
 in.: il Itv the defendants, and attested by him 
 
 the wiine-s, but not on the 1st of January IKOI; that the 
 note *;is antedated, and he did not know on what day it 
 executed. The deftLuair.i il.ui pia;cd tin- court to
 
 OF MARYLAND. 
 
 Direct the jury, that this was not sufficient and proper evi- 1808 
 dence to g;> to the jury, to support the issue joined on the ^^T^^ 
 part of the plaintiffs. But the court were of opinion, that vi 
 
 the evidence was competent and proper, and permitted 
 it to be given. The defendants excepted; and the ver- 
 dict and judgment being for the plaintiffs, this appeal 
 was prosecuted by the defendants. 
 
 The cause was argued in this court before BUCHAI*AKV 
 NICHOLSON, and GANTT, J. by 
 
 Cosden, for the Appellants; and by 
 
 Earle, Carroll and Carmichad, for the Appellees. 
 
 THE COURT concurred with the County Court in the 
 Opinions expressed in both of the bills of exceptions. 
 
 JUDGMENT AFFIRMED. 
 
 OAVIS et ux. vs. WALSH. DECEMBER? 
 
 APPEAL from a decree of the Court of Chancery, dis- w n becoming 
 missing the bill of complaint. The bill stated, that Davis o" 'h^nfaTest-ue 
 beinj seized of a valuable real property, and also pos- trut, am/pur- 
 
 .. , , chased by C D, to 
 
 sessed of a considerable personal estate, consisting, among: whom a deed w 
 
 ... . exeeuted. C D, in 
 
 other tilings, of certain chattels real, and being also in- mnkinp the P ur- 
 
 ...',:_,. chaie v acted pro- 
 
 debted to divers citizens of this and of the United Stales. f^Aiy as a w. nd 
 
 ' to \V D, so far that 
 
 beyond what he was able to pay without a greater indul- if he ,. COIlld P ro " 
 
 J l cure the purchase 
 
 gence than his creditors were disposed to grant him, was ""^ ^ in h | 
 compelled, sometime in the summer of the year 1787, to SStffofSfpJI 
 apply to the chancellor for the benefit of the act of assem- could not' raise thl 
 bly respecting insolvent debtors; that in consequence becamT iTee"mVy 
 
 to sell a part of the 
 
 e*Mt<- to reimburse C O, which pirt 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 In-half of M, the wife, and at 
 n trustee for IKT; winch intention, pivviou* to the sale, was made known to R VV, who approved of 
 it, a n si it was agreed that .f S, should be the nominal purchaser, and R W was to be his surety for 
 the pin-chine money. .1 S became the purchaser, and it was known and unilerst<K>d, at the time, that 
 he purchased lor l\{ the wife of W I). R W became suretj^for J S, and W D has always been in posses- 
 si-Mi of the premises. \V I), havin? part of the purchase money applied to R W, to obtain a bond of 
 conveyance from C D to M, the wife of W I), for the property, when he was informed by R W that 
 he h:>(l pot bind to himself, a< .1 S hail ffivt-n it all up to him, and that W D had nothing to do 
 with if. J S had been induced, in order 1 1 secure R W, to direct C D to pive a bond of convey* 
 mice to H \V, who aviured J that no aJrtmliiGfe should be taken of \V D, and that When he paid 
 the purchase money, a d';ed shonl.l bu executed to his wife M. The pretniies were conveyed by C D 
 to II \V, win brought ait action of ejoctmt-nt n^.unst W D. The amount ot principal and interest, of 
 the purehsst- money, w< tendered by \V D in R XV, and a deed demanded, which he refused to 
 CM'onte. W D, an 1 M his vvite, Hleil then- bill acriina K. W, ro b>- qui-ie.,1 i'i their ps$e<sion of the 
 pre iiis>-<, and t.i e-> nj> -I a conveyance IV.i n him to M, the wife Decreed, that 11 VV convey the land 
 in question to W O, an. I M. hi< wife, in fee <i ui>l'-, und that an accou:U U; stated, &c, and the bH* 
 (aucu due bs p liJ at the ti.nii R \V sliull convjy ttii UuJ. 
 
 VOL. n.. 42
 
 CASES IN THE COl'RT OF APPEALS 
 
 1808 thereof Stephen Jf'ilson and Robert Lemmon were appoint' 
 cJ trustees on behalf of the creditors of /A/n'.s, and that 
 he executed to them, on the 10th of October 1788, a deed 
 of all his real and personal property. That the tiu-i 
 proceeded to sell, and did sell a part of the property to 
 Cumberland Dvitun, for the sum of '1310 current mo- 
 ney, and on the 6ih of November 1792, the trustees exe- 
 cuted to Dublin a deed for the property so to him sold. 
 That Dtisnn, in making the purchase, acted professedly 
 as the friend of Davis, so far, that if he Davit could pro- 
 cure the purchase money within a certain time, he was to 
 have the benefit of the purchase; but as he was not able se 
 io do, it became necessary to sell the property, or a part 
 thereof, to raise the purchase money, and to indemnify 
 Duczan; and that Dtt^an 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 95-4, which lay connected and adjoining each 
 other, on which Davis had a house, in which he resided 
 M'ith 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 lot?, 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 gar- 
 den, for and on behalf of 3/n/, 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 to effect this design, Davis 
 and wife conversed with T^alsh, the defendant, who pro- 
 fessed himself a very warm friend to Davis and wife, and 
 requested him to endeavour to prevail on Diigan to sell 
 the lots in subdivisions, to enable Man/, the wife of Davis, 
 lv the intervention of a friend, to become the purchaspiu 
 fully di-rloMii-j; to Jfnlnh the intention of Daris and wife, 
 that the wifr should thus become the purchaser of that 
 suMivision which should include the hftuse and garden. 
 IVulah perfectly approved Davis and wifr", design, and 
 promised to give hi< assistance for its completion, but de 
 clared, that in preference to applying to Ditgan hiinstlf,
 
 OF MARYLAND. 88* 
 
 he would apply to major Thomas Yules, the auctioneer, 1808 
 and solicit him to procure Dugan thus to subdivide the 
 property, and as an encouragement lor Dugan so to do, he 
 \vould let Fates know that in sutb case he, IV.tlsh, would 
 purchase one of the subdivisions, consisting of meadows. 
 That Walsh accordingly applied to Yates to procure a 
 subdivision of the lots, informing Fates that it was intend-? 
 ed the subdivision, in which the house and garden, were in- 
 cluded, should be bought in, in trust for the wife of Davis; 
 and Fates, in consequence, prevailed on Dugan to sub- 
 divide the lots into three subdivisions, in such manner that 
 one of them, containing nearly oue acre of ground, should 
 ioclude the house and garden. That Davis and wife 
 agreed with Joseph Stockton, who married the sistpr of the 
 vile of Davis, to be the nominal purchaser of the house 
 and garden for the wife of Davis, and to attend the sale and 
 bid oft' the said subdivision for her, with whiclx Walsh was 
 fully acquainted. That Davis, the morning before the sale, 
 applied to Walsh- to be the security of Stockton for com- 
 plying with the terms of payment, provided 'Stocktpn pur- 
 chased the house and garden on behalf of the wife of Davis* 
 which Walsh agreeil to do. That both Davis and wife, as 
 veil as Wfl/sA and Stockton, attended the salej that Stock- 
 ton bid for the subdivision, including the house and garden, 
 and it was struck oft' to him for the sum of 135, that be- 
 ing 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 oi? 
 Davis; that this was repeatedly mentioned, and that pub- 
 licly, during the auction, and while he was, bidding for the 
 property. That by the terms of the sale, one-third of thq 
 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 tune Wilson and Ltwmon had 
 made their sale to Dugan, although they did not execute 
 the deed to Dugan until some months after. That Slock- 
 ton executed and delivered to Dugan a bond, with Walsh 
 his surety, for payment of the purchase money for the sub- 
 division purchased by Stockton for the wjfe of Daiis} the 
 money to pay for which was to be furnished and provided by 
 and that Walsh executed and delivered to Dvgan a
 
 832 CASES IN THE COURT OF AFPKAI..-. 
 
 1808 bond, with Stockton his surety, fur the purchase money of th* 
 other two subdivisions. That Duvix and wife hurt fiat! tlic 
 constant actual possession of the subdivision so bid off' by 
 './on, ever since the said purchase. That the day of the 
 sale, Davis was at the house of Stockton, when Duisan was 
 there with bonds to be executed for the purchase mom-} , and 
 Davis observed that they ought to state the money was for 
 the house and garden, but Dtigan replied, it was immaterial, 
 for that he would at any time give a bond for the cnnvv.aiKo. 
 thereof. That sometime after the sale, Davii called on 
 Jl'alith, and told him he thought it time for Dtisran to give 
 his bond to convey the house and garden; for that ho, Da- 
 vis, had procured a great part of the sum first to be paid, 
 and that lie Davis wished to have a bond for the convey- 
 ance before he made the payment; whereupon, after a short 
 pause, Walsh replied, to the amazement of Davis, that he, 
 H-alsh, had got a bond for the conveyance, and that Dairis 
 had nothing to do with it. Davis then asked Walsh what 
 he meant by having a bond of conveyance, as In-, //M/A/I, 
 was only the surety for Stockton who purchased it in trust 
 for the wife of Davit? Walsh replied, he meant that 
 Stockton had given it all up to him. Davis then tuld 
 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 Jfalvh answered with warmth that 
 Daviti hail nothing to do with it. That Stockton (as Davis 
 and wife are informed and believe,) being about to leave 
 this state and go to PawnffomtUt, where he now resides, 
 was induced, in order to secure ff'alsh, to direct that Du- 
 gan should give the bond of conveyance to ll'ahh, Jfalnh 
 $t 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 Dvgan, and offered to pay him 8200, 
 which he had then ready to pay him, and to i;ivr Jhigan 
 security for the residue, provided he would ghe up the 
 bonds which Stockton had executed, with Walsh as his 
 surety, and offered to make payment of the residue in six- 
 ty days, but Df'.'uii declared he could do nothing without 
 consulting Walsh, and that he, Di'fran. must make tl: 
 veyance to whomsoever Stockton directed, saying that he 
 djd u<*i know Davis, in the transaction, altho' at the >amc
 
 OF MARYLAND. 
 
 time Dugan acknowledged that he knew Stockton pur- 1808. 
 chased the proper!) for the wile of Davis; and that Stockton 
 had so mentioned in his, Du gun's presence, to Walsh, and 
 also that Stockton made Walsh promise that she should 
 liave it when Davis paid the money for which it was pur- 
 chased. 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, 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 t 
 he insisted Davis had nothing to do with the property, and 
 that it belonged to him, Walsh. That Dugan hath actu- 
 ally conveyed the house and garden, and the lot on vvhicli 
 they are situate, to Walsh; and that sometime in June last 
 Walsh claimed of Davis 50, as rent fur one year for the 
 premises, and distrained for the same, altho' 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 ob- 
 liged 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 posses- 
 sion of the four lots No. 951, 952, 953 and 954, which in- 
 clude the property so purchased by Stockton. That with- 
 in the last thirty days Walsh also served Davis with a no^ 
 tice, as if he had been a tenant of Walsh, to leave the pre- 
 mises within thirty days from the notice, in order to insti- 
 tute proceedings against Davis under the act, entitled, 
 "An act to provide a summary mode of recovering the po^- 
 session 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, a,nd demanded that Walsh should con- 
 vey the same to the wife of Davis t and that Walsh refused 
 to receive the money, or execute a conveyance. Prayer t 
 that Davis and wife may be quieted in their possession of 
 the premises; and that Walsh may be compelled by a de- 
 cree to convey to the wife of Davis the property so pur- 
 chased by Stockton for her use. fntyer also for
 
 CA?KS IN T!!K COl'MT OF ATT! \ 
 
 1808. anil fur .'in injunction, &c. Tlie ansv-c r (if U'alth. (' 
 
 Jemlant, admits ii;al ];aris applied fur the beta-fit of the, 
 'nMihent law, and that the ti ustces named became enti- 
 tled to lii- - the bill alkies, but the defendant has 
 no knowledge whether any agreement e\er took place be- 
 tween the complainants and J)u^un, that in ca.>e the pur- 
 nu'iiry was obtained by them lie was to convey the 
 same to them. The defendant admits that the lots of 
 ground mentioned \vere bold by Dugan at public sale as 
 btated; and the defendant saith, that the complainant, 
 J/an/, came to him previous to the sale thereof, and men- 
 tioned to him that she and her husband were desirous of 
 purchasing that part on which the improvements of a small 
 linu-e and garden were made, but exptessed her apprehen- 
 sions that they would be unable to accomplish the pay- 
 ments at the limited periods, ami asked the defendant if- 
 he would consent to take the same to his own account, in 
 they were so unable, and the defendant did consent 
 to do so. That at the sale of the property, which was dis- 
 tributed into three parts, the defendant became ibe pur- 
 chaser of two third parti thereof, and that Stockton be- 
 came the purchaser of the remaining third part, including 
 the house and garden, as the defendant was informed and be- 
 -, in trust for Duvia, in the event of his making the pay- 
 - in 3,0 and 9 months, that being the time limited at the 
 sale thereof. That the defendant became the security ot- 
 Slurktnit for the purchase money of the third part, to 
 ../i, and at that time also informed Stocktvn that he 
 had made the promise, herein before stated, respecting the 
 . tu Mr-. Davis. That before bonds for the convey- 
 ance of the lots of ground were executed by Dir^tin^ the 
 complainants sexually tane to the defendant, and in- 
 formed him that they had determined not to have any thing 
 to do with the purchase trade !>;. . and recp 
 the defendant to lake the uhole ii| on hii'iseif, and obtain 
 a boi:d in his nun name for the ct.nve^ance thereof: at that 
 time also the defendant tnn*enled to t.-Ac the same upon 
 himself, but .bser\ed to the CHinplai'iant J)aiis t that it 
 Mi.uld be jiroper for him and Xforl-tt-n to call on Du^un 
 an<l ie<|iiest that the bond of conveyance shouMl be execut- 
 ed to the defendant only. That shortly .me; this conver- 
 sation, Davit and Stockton informed the defendant that 
 they had waited on Dvgan for that purpose. That at
 
 OF MARYLAND.' 335 
 
 another day, previous to the execulinn of the bond of con- 1808 
 veyance, Davis, in conversation with the defendant rela- 
 tive to the property, anil in order to induce the defendant 
 the more readily trt take the purchase upon himself, in- 
 formed him that Peter fMzingcr, the. proprietor of the ad- 
 joining ground, would sell the same on reasonable terms, 
 and advised the defendant to purchase the same, as he 
 would thereby obtain the whole front on both sides of the 
 street; and the defendant did accordingly purchase the 
 opposite front from TAtzingcr; The defendant afterwards 
 obtained the bond of conveyance in his own name; that he 
 \vas pressed to take the same both by Stockton and Davis. 
 That at the stipulated periods he paid the purchase money 
 to Duyan, 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 Du*an. Tiiat 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 suni 
 bf more than dCaO. 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 al- 
 ways considered himself entitled to recover that sum, and 
 that Davis was his tenant at that rent, and compel 1 able to 
 the payment thereof by distress. That under this impres- 
 sion, and in consequence of Davis's refusal to pay the 
 same, he levied a distress, and instituted such process for 
 the recovery of the possession of the property, as stated in. 
 the bill. The defendant doth positively deny that he ei- 
 ther, directly or indirectly, ever promised or gave any other 
 assurance to the complainants, or either of them, or to Slock" 
 ton, 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 lie does not believe 
 any tender of money, on account of the pretended claim of 
 the complainants, was ever made to any person, until near- 
 ly two years after the sale, when Davis came to the de- 
 fendant's house, and told him that he came to tender him 
 money for the property now possessed by (lie complainants, 
 when the defendant answered, that as lie had neither sold, 
 nor promised to sell him, any ground, he could not receive 
 on_that account, but would bu thankful to receive and
 
 338 ^SES i> mi-; ronir OF AIMM-.ALS 
 
 1808. appb the same to their credit for ^.>mls sold in Mrs. Daiis 
 two year* before, which Davis refused. ol^ervinu; lli.it that 
 account should bo paid in due time. Tliat since the pro- 
 perty hith been in the po^e--i-in of Dui-is, the same hath 
 suffered threat injury. and the defendant has rea-on to ap- 
 prehend, acid doth believe, will be almost v. hollv ruined if 
 sutVered to remain with him: and the defend. uit is restrain- 
 ed from taking the possession thereof. The defendant doth 
 posit i\ely aver, that he hath no*er, since the purchase of 
 the pioperty, promised or bound himself to permit the com- 
 plainants the privilege of paying up tlie principal and inte- 
 "f the purchase money. and taking the property; and 
 express! v denies any trust whatever for their benefit. He 
 denies the fraud and oppression charged by the complain- 
 nnts, &c. 
 
 A motion <o di -solve the injunction was made by the de- 
 fendant, which being submitted, 
 
 II \vsov, Chancellor, stated, that the bill and answer 
 \vere br him read and considered, and it appearing that 
 the equity slated in the bill, on which the injunction ua> 
 obtained, is fully denied by the answer; and there being no 
 circumstance^ to induce the chancellor to continue the in- 
 junction until final hearing, or further order, it is adjudg- 
 ed and ordered^ that the injunction be, and it is herebjr 
 Dissolved. 
 
 Commissions issued for taking testimony, which were 
 executed and returned, containing (he following oidence. 
 
 Josfph Stockton lie affirmed that in the year ir9."> he 
 was present at the sale ot a house and lot situated on 
 IlnmpalPdJ Hill, at the head of //^(/-street, in the city of 
 Jlultiinore, that the s::!r was made by order of Cumberland 
 -?, the owner of the property, under the superintcn- 
 <lance of major ]'c!fs, an auctioneer; that at the time of 
 ,ie, the premises were divided into three parts or 
 parcels; that the aflirmant, at the instance and request of 
 Muni /):n:is, one of the complainants, with the know- 
 ind approbation of her husband, the other complai- 
 nant, became the purchaser of the lir.-t p.irt or parcel of 
 the preini-es, whereon a houe 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 tin; 
 lunt, who was present, that the afiirmant made the
 
 OF MARYLAND. i 
 
 \ 
 
 purchase as agent, and for the use of the complainants, 1808 
 that the defendant became the purchaser of the other two 
 lots, parts or parcels of the premises; that the affinnant 
 bid c!30 for the lot which be bought, and that the defen- 
 dant bid a larger sum (how much the affinnant cannot re- 
 collect,) for the two parts which he bought. That the 
 adinnant and I Taluk became mutually bound for each 
 other unto Dugan, for the price of their respective pur- 
 chases. That a few days after the sale, when the allir- 
 rnant was about to leave Baltimore, it was agreed, by and 
 \vith the knowledge and consent of all the parties, that 
 Dugan should convey the whole of the premises, as well 
 the lot purchased by the affinnant. 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 ac- 
 count of the lot purchased by the affinnant, the same 
 should be vested in the complainants, for whose use it had 
 been purchased; that the affirmant directed such convey- 
 ance to be made accordingly, and never understood or in- 
 tended 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 defen- 
 dant 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, con- 
 ditioned to indemnify this affirmant against the bonds 
 which he had executed to Dugan for the purchase of the 
 premises; that some time in the year 1793, subsequent to 
 the commencement of the present suit, the defendant call- 
 ed upon the affirmant in Philadelphia, (where the affir- 
 mant 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 
 affinnant had received from him to indemnify the allir- 
 mant as aforesaid. That the complainants were in pos- 
 session of the premises at the time of the sale, and con- 
 tinued so \vhon the aiiirmant left Baltimore, with the 
 knowledge, and as he believes with the approbation of the 
 defendant. 
 
 \OL ir ' 43
 
 338 CASES IN THE COURT OF APPEALS 
 
 1S08 James Cottier. He deposed, that sometime in the year 
 
 i after the >ale of tinman'* \ mpem, the depo- 
 nent, and Ebenezer Graves, were requested by the com- 
 plainants 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 acroiilin:J\ :;a\e to the 
 deponent and Graves the .-urn of .t'Ko, with an additional 
 sum for interest, in order to make such tender. That the 
 deponent and Graves made the fn>t tender of tl.e money 
 to Dugan, but lie said that lie had already convened, the 
 premises to If'ahh, and supposed that he would tuke the 
 money. That the deponent and Graves then proceeded 
 to the house of // 'alsli, and informed him that (hey were 
 come to make payment for the house and lot which Slack- 
 ton had purchased for Davis and his wife, \\!u> had <:i\en 
 the money for that purpose; that the deponent and Grurrs 
 tendered the sum, and interest aforesaid, ai.d req 
 JTulsh to count the same: that Ifulsh declared he had no 
 doubt about the quality or quantity of the money, but ob- 
 <1 that he had bought the premised for himself, and 
 did not mean to sell again. 
 
 Ebenezer Graves, lie deposed to the same effect above 
 deposed by Gotlicr, fixing the time of the tender to the 
 15th of February 1794, as made to Dugun, and on the 
 next day to Jf'alsh. 
 
 Colonel 7/tomas Yalis. He deposed that at the time 
 he went to make the sale for Cumberland Dttgan, the 
 complainants both expre:>scd their desire to become pur- 
 chasers of that part of the property which included the 
 house and garden, and that they should request Mr. Stock- 
 ton to purchase the s;.mo for them, provided it did 
 not go too high. He thinks // af.t/i and Dugan were 
 present at the time of this conversation. The lots were 
 laid off in three divisions, one of which d'ni.-i-in \\.is to in- 
 clude the houhe and garden, to accommodate the complain- 
 ants if they were able to purchase, and with the consent 
 of Dugan, and made from the deponent's recommendation 
 to Dublin at the :le>ire 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 Ditpan, as it was a subject of conversation at 
 the time of the sale, and Ditgan had consented to the di- 
 viMon to accommodate Davis in the purchase, but he has 
 no knowledge of their bein acquainted, with Stockton**
 
 OF MARYLAND. 839 
 
 bidding for Davis or wife, other than his belief, founded 1808 
 on the circumstances already stated. lie heard Wals/i, 
 sometime after the sale, inform Dug an that he had become 
 security for Stockton, who being unable to pay, had direct- 
 ed the conveyance to be made for said part by Dugan to 
 him Wahh. 
 
 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 de- 
 ponent for his trouble, within twenty months from the day 
 of sale; and if the purchase money, and the 50, were not 
 paid by ,'hat time, the property was to be sold by the depo- 
 nent, and the proceeds of the sale, if it exceeded the pur- 
 chase 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 1 1 alsh or fates. 
 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, (hat 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 
 Inuse and garden. He does not recollect that it was de- 
 clared, 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 Stock- 
 ton said he had purchased for Davis and wife, with an in- 
 tention 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 JVahh. That immediately after the sale, 
 the deponent called on JJ alsh and Stockton to execute 
 bonds agreeably to the terms of the sale, which they ac- 
 cordingly did, being securities for each other; and the de- 
 ponent 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 Tt alsh. The deponent did so, and the purchase 
 money was paid to him by IVuhh, to whom he executed 
 conveyances. That sometime before the executing the said 
 bond of conveyance, Davis, or his wife, called on the de- 
 ponent, and told him it \vas perfectly agreeable that a bond
 
 340 ( \~r> IN TIIF. cnnrrnK UMT.M- 
 
 1808. of coin e\, mre should be ^i\en to ll'til.tli for the whole of 
 lli- property: and the deponent understood that tin- rcm- 
 plaiiunis anil defendant wcie then on ^<<id terms. lie be- 
 lieves that U'dlvh ilid know, or had been inl'.n nied, at ot 
 he fore the time when the bond of conve^ -it- 
 
 od. that Stockton purr! !,>r Darin or wife. 
 
 He believes that Dnvi.i called on hii-i a short time i- fore 
 the first pa\menl b'-rame due, and afier the bond of con- 
 
 ,in<-e had l)ecn -JvMi to '>/>/. and said lie would ; 
 him -200. and give him sorority for the remainder, but 
 Hie deponent s;iid ho cnnld not do any tiling in it. because 
 the Ixind was nearly due, and lie expected to get the \\holc 
 \\hon it became due. 
 
 Job Gun rt son. He deposed that it was publicly said 
 nt the sale that Stockton bid for M:>. A/r/.v; that tlie de- 
 ]>onent so understood it himself, and ^ii:>iiO"ed it to be so 
 understood by othersy from the genera I eonverMtteo, and 
 he be!ie\ c- !' . iiderstood by nV'/.s// am! ml 
 
 that f)nsr(tn told the deponent sn. That at the timo nf the 
 sale, Slocklon told the deponent that IValxh liad a^r-'ed to 
 be security for him if he bought the property. fin 
 
 told the deponent tha* he supposed JJ'nt.^i \vnuld ho secu- 
 rity for Stockton. U'ttf-th afterwards said to deponent, he 
 thought it was a pity that Darin and wife should be- 
 out of the property, and that he had become security for 
 the payment of the money, and tlu.t v hen ihev paid the 
 money the property' . That afewd.ix-. brfore 
 
 St.x L.'tui went away, Dit':i:t< told the dej.orient t!-.at Stnck- 
 ton had a bond of conveyance, and that he nr !' deed or 
 ;\-~'^i} it to IVuhh, but v.henever the PX ney \\.TS (-aid, the 
 jnoj.erty v.culd be tip MK. Davit and wife. That 
 
 Stockton, a little before, informed the deponent. ih:t he 
 vas a good deal uncas\ about his beinp - r/'.v 
 
 for the purchase money of the said house and i;::rden; that 
 he was goin^ to leave the place in a few dav-,;nid had a 
 mind to let IVul*h have it. and whenever /',,/, and wife 
 paid the money, Wul*k would let them have the propei 
 On the deponent informing Du^an of tliis conversation, the 
 preceding conversation with /ii'^an took place. 
 
 It was admitted that Davis iemain"d in ]:osscs8ion of the 
 house and garden, until he \vas turned out by a writ of 
 farias postetsionem, issued on a judgment at law 
 against him at the suit of Mulsh's k^ 5 cc. Tliat Stockton
 
 OF MARYLAND. 
 
 removed out of the state shortly after the purchase, and 1808. 
 before any part of the purchase money was paid. That 
 the sale made by J}ugan was after the time of the pur- 
 chase made of Davis's trustees. 
 
 HANSON, Chancellor, (December term, 1805.) The 
 cause standing ready for hearing, has been debated by the 
 counsel on each sidefoj, and the whole by the chancellor 
 carefully considered. 
 
 How (,f;en does the chancellor think it proper to men- 
 tion the principle on which the statute of frauds was fram- 
 ed, and principles in this court established. There is in 
 this case no agreement, that the chancellor perceives. Is 
 it necessary to say that a contract is a stipulation or agree- 
 ment, or understanding, between two persons, each of 
 \vhom 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 
 pot bound without his own will. For instance, A and B 
 make this agreement A binds himself for the considera- 
 tion of 10 dollars, before the 5th of December, to pro- 
 cure to B 10 hogs, for which, if B likes them, and chooses 
 to take them, he shall pay at the rate of SS per 100 wt. In 
 this case agreement is clear, A is bound to bring the hogsy 
 but it is at the election of B to take or reject them as he 
 thinks proper, losing his S10. But if there be no con- 
 sideration 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, ou 
 the part of the complainants, no contract. There was no 
 uctus contra actum; there was no consideration flowing 
 from them; there was nothing binding on them. 
 
 It has been contended, that Sloe/don only acted as trus- 
 tee 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 in- 
 sisted too, that as he made the contract in his own name, 
 
 (a) Martin, (Attorney General,) for the complainants, and 
 Winchester, for the defendant.
 
 CASES IN TMK CWIIT OP AITKALS 
 
 1808 the property was to be considered as a security in the 
 hands 01 him, the nominal purchaser, and that as tin-. u.i> 
 the case, the time stipulated for redeeming it \vas to be 
 considered in the same light as the day of redemption 
 mentioned in a common mortgage. There U no analogy, 
 and it is not to be conceived that this couit ou-ht to deter- 
 mine, that although there was no consideration flow-in-.; 
 from the complainants, and although there was nothing 
 binding on them, A'/ocA/on should be obliged to cuivey to 
 them at any time, when they should fir.d it convenient to 
 pay the money: and that at any peiiod after the. time 
 stipulated, \\lioever should hold the property from, by, or 
 under Stockton, after even twenty mesne transfer?, should 
 hold it subject to the will of the complainants to redeem 
 it at any time. How would such doctiine compoit \\itli 
 the interests of a young thriving town? 
 
 The chancellor does not conceive there is any solidify in 
 the observation respecting answers in this court. The Ii- 
 tinction if* plain. "Where a defendant first admits the allega- 
 tions in a bill, and then sets up some distinct after transac- 
 tion, byway of avoidance, he is bound to prove that trans- 
 action. 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 re- 
 spect to the nature of that agreement, is to be taken alto- 
 gether. For instance, says the bill of A B contracted 
 with me, by parol, for the consideration of S50f 0, to sell 
 me SCO acres of land in Jialtinwre county, of which he 
 put me in possession, but I was to have credit fur five 
 years without paying interest. B, in his answer, admits 
 that there was a parol contract for the land, and p< 
 M(,n jrivrn ns stated; but instead of having credit as afore- 
 said without interest, A was to give him bond, with secu- 
 liiv. !nr pay! no; with intrrot in three years. "Will com- 
 mon sen-e sulVrr a construction a-, that because B admits 
 a contract and po.r-Mnn he must be considered to have 
 admitted every thinjj; necessary for A*s purpose. unK 
 can prove, on commission, that the contract was ns > 
 in the answer? No! the absurdity is glaring. But if B 
 had admitted the matters stated in the bill to be facts, but 
 vent on and said that afterwaid-. A, for the consideration 
 of SI 00, had agreed to give up the purchase, &c. that
 
 OF MARYLAND, 
 
 1>art of the answer must be proved on commission, unless 1808 
 A, on interrogatories, had admitted its truth. 
 
 The chancellor thinks proper to make a remark, which 
 ought to have come before supposing Stockton really 
 bonnd to convey on receiving the purchase money on or be- 
 fore 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 sti- 
 pulated. Suppose this case they do not bring him the mo- 
 ney 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 S500 less than it cost him. Ten years after this the 
 property is woith 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 tiie purchaser from that pur- 
 chaser, or the purchaser from the second purchaser, is ob- 
 liged, 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 9 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 agree- 
 ments 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 en- 
 deavoured to conform to decisions, which on any principle 
 might be considered as binding on him. He lias never in- 
 tentionally decided against any decree of the Lord Chan- 
 cellor of England, made before the revolution, or even any 
 decision of Chancellor Rogers, which hath not boen con- 
 troverted, unless on a bill of review. As t:j the present 
 case, he is satisfied, that by decreeing a dismission of the 
 bill, he will contravene the principle of no decision in equi- 
 ty, which ever hath been given. Decreed, that the bill of
 
 341 CASES IN THK (01 UT OK AI'l'KAl.- 
 
 1808 the complainants be dimi--ed. ami the defendant be tlis- 
 iiu--< i. but without costs. 
 
 l-'rnm \vhirh decree the complainant* appealed to this 
 court. A nil the csi- . tied before C'nvbK, Ch. .1. Ni 
 
 ciiui.suN, and (;\M i. J. li\ 
 
 Martin, for the Appellants; and by 
 J/(i>-],fi; for the Appellee. 
 
 Tin l.'ot 1:1 l; rrscd the decree of the court of thai;- 
 CIT\. and (let i eed that the appellee convev tlic land in 
 rpiesiion tn the appellants, in fee simple, and pay to them 
 all the costs in the court of chann-ry. and in this court, 
 and all the costs incurred by J)<n-'n at law in deft-ndinj; 
 the action of ejectment prosecuted auainst him by the ap- 
 pellee, and that the appellee restore the poc i.m of the 
 land to the appellants. Also that an account be tal. 
 the principal moiiev ;'.nd interest |.aid by the appellee for 
 the land, at the respective timr In- p::id i!ie -ame. ;:nd that 
 (he appellant! beihai--ed therewith: and that an account 
 aUo be taken of the rents and profits of the land, which 
 have accrued and been received by the appellee MMCC he 
 took possession thereof; and in slating the. account between 
 the |>arties, the appellee be charged ihercwitii at i\. 
 pectivc times he received the same, with le^al interest 
 thereon; and that the balance of the money \\hich may be 
 due, on the adjustment of the said account, be paid to the 
 party to whom it shall be due, whether appellant i <>; :ij>- 
 pellee. at the time the appellee shall convey the land. 
 And that the chancellor make all necessary rules and or- 
 tlri> lor having this decree carried into full and complete 
 c fleet. 
 
 |i F.K. M-Co'., Garn. of K:- i \, \ Adm'v. 
 
 Ai'i'K\L from IFo/<i/i2r/on County Court This was an 
 atliK-hiiii ,ii (111 warrant under the act of 1705, en. 
 .,,,,1 ,| |( . gJfiJagiti ,, xvhich the wairai.- .uih-d, v.a-, 
 
 made by the admin . -taiin; that A'iii^ld, (the ori- 
 
 ginal ili-lendant.; wa- l>o"u fi.lc indfbted to her, as admi- 
 i.i-tiutrix, on tv. o promissory nole-> drav, n by King:
 
 Otf MARYLAND. 340 
 
 payable to her intestate, or order, &c. The attachment 1808. 
 tvas laid in the hands of M'Coy, (the appellant,) who ap- 
 peared, and moved that the proceedings on the attachment 
 might be quashed. But the county court refused to grant 
 the motion, and judgment of condemnation was rendered, 
 &c. From that judgment this appeal was prosecuted. 
 
 The case was submitted to the court without argument 
 
 71 Buchanan, for the Appellant 
 Hughes, for the Appellee. 
 
 JUDGMENT AFFIRMED* 
 
 DAVIS vs. WILSON, et at. DECEMBER** 
 
 APPEAL from the County Court of Baltimore. The re- . A paper certified 
 
 in a record trans* 
 
 fcord in this case contained a bill of exceptions, tendered to ".urpo.iinsfobe"^ 
 the associate justices of the county court by the defendant, ^ILnat'th.'i 1 '; 1 ,-;'? 
 
 7 j j * i*it*ii MI iin. iriuif 
 
 (the appellant,) and which was signed, but not sealed, by a binof exwpt?ons 
 
 ji in the ca-e, it not 
 
 tne JUSllCeS. appearing that the 
 
 seaU of iho judge* 
 T-i > - * i of tlie court below 
 
 W. Uorscy and Bnce, for the Appellant, contended, " : >d been affixed to 
 that there was a material variance between the writ and The court of ap. 
 
 peals having re 
 
 the declaration: the former being in the names of William v ;:" ed .i" J K men t 
 
 01 the court below, 
 
 Wilson, and others, and the latter in that of William Wit- "j^} 1 . 6 f "" ?" 
 
 n In 
 
 inn ilnnt> >"S material va 
 
 son alone. liailce be(w en thd 
 
 They were proceeding to argue the points raised on the Jtoti^eiK^S 
 
 bill o f exceptions, when it was discovered that it had not m&'a 
 
 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. 
 
 THE COURT considered that there was no bill of excep- 
 tions in the case, the seals of the justices not being affix- 
 ed thereto; but there was error in the form of proceeding, 
 and reversed the judgment without awarding a. procedendo. 
 
 JUDGMENT REVERSED. 
 
 VOL. rr. 44
 
 346 CASES IX THE COVRT OF APPEALS 
 
 1808 WAGNER vs. M'DoxAi.D. 
 
 DEC EM HE a. 
 
 APPEAL from the Orphans Court- df Frederick county." 
 A paper, purporting to be the will <,f Michael n'.,:--,iir t 
 written in the Dutch lan^'i.v'e, of which the follow in-' U 
 
 A i**prr wi - 
 
 hibi.ai.>r ,.co,<i a translation, was exhibited to the orphans court tor record 
 
 fti thr lull T ' 
 
 ....a <; by the appellee, who had m trried Wiza'ip.th Schrriner. one. 
 
 haii- tm n MfBCd J 
 
 w.iVii.'ut ^ tnc ' e o ;ltces therein named, vix. -In the name of (ind, 
 tb ri l "ri Amen. If I should not come to you anain, my son Michael 
 fiZr?U'er..!mi Ntf-Hcr shall pay, out ,if Christum Wagner'* bond, which 
 ^r^me'io 1 ' ";',', I have from him. to FMzahelh Xchrcinrr seventy 
 
 cVmMM Roether thirty pounds in the year 179P, the 10th of May. 
 
 Kentucky, and it> ,. . . _ r . . . .. . . 
 
 tunirti.iin.iihm he 1 lie remaining fatty pounds you slmll divide amongst yon; 
 werk. ikemftcr^- that is, Michael It'agneraml John IVagner, and Christian 
 
 Held, that the pa- - mr in i i -i i 
 
 i a not 1,0 M nziicr and h aether 8 children, and Catherine Scfiretncr s 
 
 njniiiivil to record . 
 
 th uit win of 3 children, and the money shall be put on interest till they 
 come of age. Farther what I vet have with Christian, 
 that is, 1 cow, 1 house clock, bad and bedsteads, clothes 
 pres9, table, copper kettle, bible, of these Eve Sherman 
 shall have share too like the rest. So much from me. 
 
 Michael U agne?. 
 May 4th, 1795." 
 
 A citation was ordered and issued for the representa- 
 
 tives of the deceased, &c. Proof was made of the hand- 
 
 writing of foichad Wagner, (deceased,) and that he was, 
 
 in the year 1795, of sound disposing mind, memory and* 
 
 understanding. It was also proved that he lived with 
 
 Christian H'agncr in Liberty Town, and went, to Ken- 
 
 tucky in the spring, about the 7th or 8th of May IT'.K'f, 
 
 and returned to Christian Warner's after harvest in the 
 
 same year, and said on his return that he was well; that 
 
 lie continued so for four days, and after that he lay sick 
 
 three weeks, whew he died. The orphans court decreed 
 
 that the paper should be recorded as the last will of Mi- 
 
 chael Wagner, deceased. From this decree this appeal 
 
 was brought by Christian nv/ijvjer, who (amoni; others,) 
 
 had been summoned, but who alone appeared to and con- 
 
 tested the proceedings. 
 
 The cause was argued before CHA.SE, Ch. J. BUCHANAN^ 
 and NICHOLSON, J.
 
 OF MARYLAND. 
 
 Taney, for the Appellant, contended that the paper ex- 1808 
 Itibited was to take effect a> a will it' the writer did not 
 return; and as he did return, it can have no effect. A 
 will to take effect on a contingency, has none if the con- 
 tingency does not happen. Famous vs. Lanoe t 1 Fes. 
 190. S. C. Jimb. 557. Lugg vs. Lvgg, 2 A'alk. 592. 
 8. C. 1 Ld. Raym. 441. 
 
 Shaaff. for the Appellee, contended, that it did oot ap- 
 pear that the appellant had any interest in or right under 
 the will to justify his contesting its* being admitted to re- 
 cord, and appealing to this court from the decision of the 
 prphans court. He admitted that the orphans court were 
 in their decision. 
 
 DECREE REVERSED, 
 
 HAY, ct al. vs. CONNER. DECEMBER/ 
 
 APPEAL from, Baltimore. County Court. The appellants, B ,^!^/ 7^ai- 
 t>y their next friend, brought an action of trover in that chiidrfn^who'wew 
 $ourt against the appellee, for the conversion of a mulatto y" a J ,^Mr,^ave 
 nuile slave called James Perry. The general issue was ^ "^"c^p'ia^To 
 pleaded. The facts are stated in the following opinion of,^^h^ 
 the county court, delivered at the trial in February 1802, and 1 tVe"ves!ef b 
 
 iiitf so:d 31 the port 
 
 py lo which she sailed, 
 
 bj lit r owners, tlio 
 iave WHS put by 
 
 H. RIDGELY, Ch. J. In this case the evidence offered t b I l ' e ird c ^ !a a' 1 vl , 1 "" 
 to the jury is, that John Hoy, deceased, father of the plain ^V!,n!"hed w'l'u 
 tiffs, in his life-time executed a bill of sale to the plaintiffs, ^^'"mt^eier 
 \vho were and still are infants under the age of twenty- one a^c'i^i h o"m>w* 
 years, by which he sold to them a negro slave by the name vro.!-cut!.^" llll ''ij n y 
 of James Perry, (who is the slave mentioned in the dccla- -^.V y ' ih^ai"it 
 
 \ it i T i IT i L i ^1 i-f i i tin- UIH valueof the 
 
 ration;) tliat John Hay departed this life intestate, leaving si. v.^cw. that 
 
 ,. , . / i ., , ill* adieu wai well' 
 
 his said infant children in the care and under the protec- brought. 
 tion of their mother, Martha Hay; that Martha Hay after- 
 wards took upon herself to hire for wages the negro slave, 
 James Pern/, to the defendant, Captain Conner, to per- 
 ftnn a voyage from Baltimore to Hamburg, and thence 
 back to Baltimore, as a cook on board the ship Unary, 
 which the defendant commanded in the voyage. The 
 slave's name was signed under the ship's articles, in pur- 
 suance of the said hiring, as a cook; and that the defend- 
 ant promised Martha Hay that h would bring back the
 
 348 CAPE? IN TIIK COURT OF APPEALS 
 
 1808, n*;ro, or pay her a generous price for liini. in case lie 
 i -^~'^- / should not. The s-hip Mart/, on licr arrival at J/uinii, 
 
 in the prosecution of her V(.\a^c, \\as sold i>\ the orders 
 f her owner. The negro .slave was, alter the sale of the 
 ship, put by (he defendant on board the ship /7</t///,i/. Cap- 
 tain fl'ecms, bound to llall'anori\ and the defendant fur- 
 nished him with provisions fur said \<>\;i-r. |: i .:drn;t:ed 
 that the plaintifts, at the time of the hiring of the slave by 
 their mother, were the legal and sole proprietors nl the. 
 Raid slave, and that the mother of the plaintiff* was noi ap- 
 pointed the guardian of the plaintiffs, or either of them, by. 
 their father, or by the orphans court, and that they, at ihe 
 lime of the hiring, were under the age of fourteen. It is 
 also admitted, that an action wf assumpsit has bern in>ti- 
 1uted in this court, and a recovery had for the sb\ 
 wages for said voyage, against the defendant, by Martha 
 Jiay; 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 u><'. The nn-at 
 question then, upon which this case depends is, whether 
 under a view of these circumstances the defendant is guil- 
 ty of a conversion? If he is, the plaintiffs are entitled to 
 a verdictj if he is not, the verdict ought to be lor the de- 
 fendant. 
 
 It remains to be considered how this slave came on board 
 the defendant's ship, by what authority he was l tipped, 
 and in what capacity he was received by the defendant? 
 He was shipped by Martini Iluy, at and for the vragta <>f 
 J20 dollars per month, for the voyage. He w:i~ ii hy 
 
 the defendant at and for these wages to perform the vnv- 
 age. "Who was the contract between? The defendant on 
 the one part, and Martha Hay on. the other The s.!a\e 
 vas no party to the contract. It is a mutual contract bind- 
 ing both the parties; on the part of Martha Hmj, that the 
 slave should perform the voyage; on the part of the defend- 
 ant, that he would pay the wages. This I take to be the 
 substance of the contract. Then, had Martha Jfa/ power 
 to make this contract? It results, from the relation is> 
 which she stands to the plaintiff-, that she had. She is their 
 guardian by nature; as guardian by nature, she has the cus- 
 tody of the persons of her children, and the management 
 vf their personal property, and she is accountable to them 
 tvi the profits. It follows thcu that s>U has, a right, anu\
 
 OF MARYLAND: 349 
 
 is bound to use the property in such a way as to make it 1808. 
 roost 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 arc 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 manner 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 hired 
 by a person having proper authority, and that the defend- 
 ant did no wrong, and was justified in receiving and em- 
 ploying him in the manner he did, and so far was not guil- 
 ty 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. 
 //</, with whom the contract was made, ferry was a 
 slave, and could do no act, but such as Mrs. Huy author 
 rised him to do. The defendant put the slave on board 
 Captain Wttms^ 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 
 vrong by the defendant. But when there, Perry makes 
 his escape. Is this the wrong of the defendant? We think 
 rot. Suppose Perry had ran from the ship, and drowned 
 himself, would 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 lavts
 
 330 CASES IN THE COURT OF APPEALS 
 
 1808 of the state, anil was imprisoned, would the defendant b 
 answerable? No. Suppose the >lavc l.a-l taken a knife 
 and cut his own throat, would it be said that the defend-. 
 
 tint ouht to have been standing ahvavs bv to arrest the 
 
 j 
 
 blow, and that he, having neglected to do this, is ai.- 
 able? No. I'pon the whole, we think that Martha Hay 
 Jiad a right to liire, and that there was no wroug in the. de- 
 fendant iu 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 'A 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 tu 
 be proved to the jury. The plaintifts cxcepteil; and the 
 verdict and judgment being for the defendant, the plaint ilfc 
 appealed to this court. 
 
 The cause was argued before CHASE, Ch. J, BUCHA- 
 NAN, and NICHOLSON, J. 
 
 7?ricp, for the Appellants, stated, that the principal 
 e|iie:ions were 1. Whether Mrs. ////, the mother, uas 
 guardian by nature, if so, whether as sue h she had any such 
 power over the property of the children? And "2. Admit- 
 ting she had such power, whether the defendant has not, 
 by putiiun; tKe slave in the custody of another person with- 
 out the knowledge or consent of Mrs. //in/, or her chil- 
 dren, o\en i-ed such an act of ownership over the !:. 
 to amount to a conversion? As to the first question, he 
 cited / :. Co. Lilt. 119, b. (note B; /frown'* 
 
 Cicil IMW, 131; and the act of 1793, eh. 101.. 
 
 Purvianre, and .V. Chu$f t Jr. for the Appellee. 
 
 Tin: COURT said, the action ot trover was well brought* 
 and reversed the judgment. 
 
 JUDOWKM HI. \111SED, AND PUOCEOENDO AWARDED. ' 
 
 FACET vs. BRAYTOK. 
 
 r,; ArrKAi. from Baltimore County Court. Replevin for & 
 'I he declaration did not allege any damage to have 
 
 'ii titr rt 0. ' < in Ceyif- 
 
 1.1'. hMi>K '! 
 
 ..s Uut IK luck it Iruu fk d*rUii:f-buuc ul ibv j'Uu.nn.
 
 OF MARYLAND. 351 
 
 leen sustained by the plaintiff, (now appellee.) At the 1808, 
 trial the defendant, (the appellant,) prayed the court to di- 
 rect 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. 3.) 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 cxceptedj and the verdict and judgment being 
 against him, he appealed to this court. 
 
 Purviancc, for the Appellant. 
 
 Martin^ Winder, and Rogers, for the Appellee. 
 
 THE COURT concurred with the county court in the 
 Opinion expressed in the bill of exceptions; but reversed the 
 judgment, because nodamages were laid in the declaration. 
 
 JUDGMENT REVERSED. 
 
 HOGMIRE, et al. vs. M'Cov. DECEMBER*" 
 
 APPEAL from Washington County Court. The appellants tv ?" r % c r ' ' l f ti t 
 brought an action of trespass q. c. f. against the appellee, l'ov^u,Lf I'^M 
 The general issue was pleaded, and plots were returned. LT^STSS 
 
 1. At the trial the plaintiffs offered to prove, by a^Ki^b 
 
 . iU i il c A.I committed, and 
 
 Competent witness, that they were in possession of me tW the defend** 
 tract of land called Long Timber, mentioned in the de^tretpaUcompimr* 
 claration, and on which the trespass was alleged to have so in the powe*- 
 
 , . siou of the plain- 
 
 been committed, as located on the plots by the plaintinsjtitr, t the place 
 
 ... by him located on 
 
 and that the defendant committed the trespass mentioned thc i )!ots ' he 
 
 cause Held, that 
 
 in the declaration, on the land so in possession of the s " cll . ev i l , leuce WM 
 
 admissible. 
 
 plaintiffs, at the place located by them on the plots. This )ro ^J e b j'2'^ 
 testimony the county court, (Clagett, Ch. 3.) refused p^t^, "he 
 to admit to be given to the jury. The plaintiffs excepted. !j[; a "? **"? * 
 9.. The plaintiffs also offered to prove, by a cpmpeteiflt JS^l^SJ* ^S 
 witness, that he, the witness, \vas present when the tract 0^^!'^'^ 
 of land called Long Timber was originally located B*&\el'u ** 
 taken up, and that the tract was then located, as now lc-//lthat t!!l.' 5 T. 
 
 deuce was aJiiiis- 
 ^ime to proTC the grigiual beginning and Ideation of the tract of lanrf.
 
 353 CASES IN T1IB COURT OF AIM'K VLS 
 
 1803. cated by the plaintiffs on the plots, and then prayed tin* 
 court to direct the jury, that this testimony was admi-siM.-. 
 to pruve the original IK- Binning and location of the land, 
 in order to support the plaintiflV action. But the county 
 court refused to admit the testimony. The plaintiffs ex- 
 cepted; and the verdict and judgment being against them* 
 they prosecuted this appeal. 
 
 Hughes, for the Appellants. 
 
 T. Buchanan, Brooke and Lawrence, for the Appellee.' 
 
 THE COURT dissented from the opinions expressed by 
 the county court in both of the bills of exceptions. 
 
 JUDGMENT REVERSED. 
 
 DECRMBKR. CUSHMAN vs. SIM'S AilmV. 
 
 JySJSSS APPEAL from Frederick county court. This was an action 
 *'v"/o^'/m^,""rf f ussHnijixit, and the declaration contained two counts 
 ', .; t 7r The first for one year's service by the plaintiff, (now ap- 
 
 ti ( E^ pellant,) as an overseer, in the year 1791, rendered the in- 
 imi* dJr.MiJum'flir testate of the defendant, (the appellee,) and the other a 
 
 thr pi. nt.tf ' ter- . _ . . : ' - 
 
 Yic i *n v ir - quantum mcrmt for serving the intestate as an overseer for 
 
 err, (be plaintiff . 
 
 r ii ,1 not rrcortr one year. The general issue was pleaded: and at the trial 
 
 HIMIII hi* declara- 
 
 t|on - the plaintiff offered in evidence, that he had acted as over- 
 
 seer for the intestate during the year 1791, and proved the 
 value of such services. The defendant then gave in evi- 
 dence, on cross examination of the plaintiff's witness, the 
 declaration of the plaintiff, that he was to receive of the 
 intestate a share of the crop made on the land for his ser- 
 vices in that year, and that the plaintiff had received his 
 share of the corn crop; but the defendant offered no evi- 
 dence of a further agreement, nor of what share or propor- 
 tion of the crop the plaintiff was to receive, or that the de- 
 fendant had performed his part of such special agreement. 
 The defendant then prayed the court to direct the jury, 
 that if thev were of opinion from the evidence, that there 
 was any special agreement between the plaintiff and the 
 defendant.'- inte-tate, for In- -ervices as an overseer for the 
 year 1791, the plaintiff was not entitled to recover on the 
 declaration in this cause; which opinion and direction the 
 <ymrt, (Clagclt Ch. J.) gave. The plaintiff cxceptcd; and
 
 OF MARYLAND. 
 
 the verdict and judgment being agiinst him, he appea'ed 
 to this court. 
 
 The cause was argued before CHASE, Ch. J. BUCHANAN, 
 and NICHOLSO.V, J. 
 
 'fancy, for the Appellant, cited Payne, ct a', vs. Bet- 
 comb, 2 Doug. 6J1. 
 
 1 , for the Appellee, cited Exp. 138, and Hannan 
 ts. Lee, 1 llarr. * Johns. 131. 
 
 Tim COURT said, that in the case of Payne, ct al. vs. 
 Pacornb, there was a count on a special agreement, and 
 other counts, and as no agreement was proved, the plain- 
 tiff was permitted to recover on the other counts. 
 
 JUDGMENT AFFIRMED. 
 
 RUTTER vs. BLAKE. DECEMBER.' 
 
 APPEAL from Jlnltimore county courfr. The appellee 
 brought an action of assumpsit against the appellant, on a k r %oa*i* rt imii 
 promissory note drawn, on the 4th of July 1800, by him t'!em l 'Vpon :i 7h' 
 
 In t i n . 1 ii r crtvlitofsui-h affli - 
 
 Ettward nutter, deceased, whom he survived, for motion, and they 
 
 Si 012 50, payable sixty dajs after date to 7cfa?<m? /o&n- tp be different' . 
 
 ill- i i i rf-if *r /" tUepu.e'msc-r niiy 
 
 son, or order, and by him endorsed to friuiam MacCreen/, it mm the g<, 0( fs 
 
 i i i i , ii MII an:1 1 ' ccovt ' r back 
 
 or order, and by him endorsed to the appellee. I he ge- the money, in an 
 neral issue was pleaded: and at the trial, the plaintiff pro- h: J an.i!ective<!,- 
 
 1 , or he may hava 
 
 duccd and read the note in evidence. The defendant then h;a aeti "> *"'- 
 
 out a return uf the 
 
 oTered in evidence an airreement made between him and w<i<, if he pivd 
 
 nrtnf to thetefier 
 
 the plaintiff, vi/.. That the promissory note, declared on ]}^o'f ite( j IuT aro 
 in this case, was given for goods purchased by the defend- t f i V {, s ' a'tm-mln* 
 ant, and E. Rulter, (since deceased,) of the plaintiff. That ft 1 " ei e v u " 
 tlie defendant, in the trial of this cause, may incjuire into nTjorn^ tot 
 and oiler evidence of the consideration of the note, and be^unwumi'' ana 
 avail himself of, the want of consideration for the wliole, or mail, he nay**. 
 
 c ,. e ,, .) i , i i , i coier hack ths 
 
 any part of the note, as fully as tne detendant might legal- money pokf. IB *a 
 ly do, it the note had been originally given by T. <$.!?. fad and reeeiTet^ 
 
 Gutter to tlie plaintiff, and the plaintiff had brought his ac- A whu-e the 
 
 horse is, and he U 
 
 tion as pavee of the note against the defendant. The ot b '' u "<i to it- 
 
 1 - turn the horse. 
 
 defeofant further offered evidence to prove, that he But '/ a r'^ 
 
 no iidtu-e to \, 
 
 and "E. Ratter, on the 1st of March 1800, at 
 
 sells him for halt' 
 
 what he ptve. R ha* elected to aLLJe by hjj contract, and lie cannot rejort to A to n^ake yuod tho dil'. 
 tetKHue of |>i'ice. . ' > 
 
 VOb II 4J
 
 -i CASES IN THE COOIT OF APPEALS 
 
 1808. county, purchased three bales of blue Gucrraha, and that 
 the note, with the indorsements, was given by T. $ E. 
 flutter to the plaintiff, to secure the payment of the pur- 
 chase money of these goods. That E. flutter, since the 
 eiecution of the note, died; and that T. <$ E. flutter did 
 not, at the time of the sale, or at any time previous to the 
 arrival ot the goods in the H'est Indies, as hereafter stated, 
 examine the goods. That T. $ E. flutter shipped the 
 goods to the Island of Currocoa, in the If cat 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. 4* 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 td 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 Currocoa, on their own ac- 
 count, and for their own use, the defendant is not in 
 law entitled to any deduction for any loss or daiua_ 
 tained by the defendant and E. Rutter^ in consequence of 
 any warranty of the goods by the plaintiff. The county, 
 court, (H. flidgefy, Ch. J.) delivered the following opini- 
 on: 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 after- 
 wards 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 depo- 
 sited. As, where A sells a horse to B, aflirminu; him to 
 be sound, B receives the horse, and sets out on a journey, 
 but finds the horse to be unsound, and leaves him ou 
 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 sel- 
 ler that was the original cause of the horse being at a dis- 
 tance and out of his possession, and he must put up with, 
 the loss and inconvenience. So if a merchant in Balti- 
 more buys goods, the seller warranting them to be of a 
 particular description of quality, and the merchant, with-
 
 OF MARYLAND. 
 
 853 
 
 Oui examining, sends them to the West Indies, where 
 upon opening he finds them not to be of the quality war- 
 ranted, 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 fur- 
 ther 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 defen- 
 dant, however hard it bears upon him, I am of opinion has 
 deprived 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 dis- 
 covers 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 con- 
 tract, and I take it he can never resort to the original sel- 
 ler 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 de- 
 fendant 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 r-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 per- 
 son who sold them to him where they are. Therefore it 
 may be that the plaintiff paid ihe price of first quality 
 goods; and if he should not be permitted to recover against 
 the defendant, he will lose the difference of price between 
 goods of the best and goods of inferior quality. Whereas^ 
 
 1808
 
 CASES IN THE COURT OF AITF.AT.S 
 
 1F.08 
 
 Prury & llcnnitl 
 Xtgru Grace 
 
 liftd tin- ;;iioi!* not been ili|'0>i-d of hv tl.e defendant, tlt 
 plaintifl could have rcli.i m-d n ;.:i\en notiie \\l,ne the 
 <: i iot! - \\cre s'ored. ami >' IMT fioin ti.e JIIM.II 
 
 v. (in sold to him. It i: tine, tl at ii at the lime of u.akii^ 
 thi-> note any part'u nlar a ;icrnn-m or understanding took 
 |)|RCC between the i laintifl', or his a^ent J.'/n ( m >\i,\ :.nd 
 the defendant, that a ded action should be made on ac- 
 cnunt of anv dt-li-ct in the i:<iotls, that the deleiulaiit I as 
 hi> i-rinedy in equity by making them ] arfir*. r in t/iia 
 C'liirf. if he can prove the Dole uas delivered with MH h 
 intention or understanding of the parties. The defendant 
 excepted, and the verdict and judgment being ;. 
 him, he brought this appeal. 
 
 The case was submitted to the court without argument. 
 
 //. Dontnj, for the Appellant. 
 
 J'urviunce and A'. Chuse t Jr. for the Appellee. 
 
 J j JUDGMENT AFHHMi:i> 
 
 DRVRY &. BENNETT vs. NEGRO GRACE. 
 
 ' APPEAL from Sliwe-Anmdcl Countv Court. In thh 
 
 ' I*'H U^tTl^lH 
 
 fmit" r i. r i",", ',"''i - case the appellee l*'t'nioned for her freeilom, and the fol- 
 '! 'n ",'".'! n'i..ry lowing ca- (I for the opinion of the county court. 
 
 ' 'nod, being |o-Moed (I M:I.<!IV in-.-.io |] 
 .nd among others of the petitioner, on the 10th i>l 
 i.mjK-ri H bruary J7t8, duly made 1 is lad \\ill and testament. 
 
 wiif"ihu r fi l ^i d and taining this clause '! ilevise ;:nd liequeatli the whole of 
 f 'pwJv.'.'i ''' ,'!! my projierty, i eal and personal, to my beloved da>:. 
 
 i'iai tin' tnii i-ii'.'i ," '.. i.i ii i r 
 
 ,i HI,- i.-,t,i,,r i, Mary .'inn //oo, to her and her heirs lor ever, and ni 
 chhMrhtiMi i case slic t/i'f.s iritlioiit lunfnl ?4c, then the whole of niv 
 
 d by tome . J 
 
 i.ii.- i:*. van! property is to be possessed by my dear \viU- .//i, dur- 
 * in ' her v, idouhood, and no longer, and at her death or 
 
 I di i the . 
 
 vhoi- of my pr.^ Qiarriaee to be sold at public sale, and five hundred pounds 
 
 . rvl rn-l ' 
 
 i~ '.uurhu r currcnt money, out of the money arising therefrom, to be 
 
 >l W, to -, nd 
 
 1 "ii in rr t'i' ;. -"' tircijH ny ii to 
 
 W fumt m il by ni) rinr jr/Vr y<. iliirinf l.rr trw/cnrA" ! IT nmni(rr, 
 
 ' ' | ulih'r <:il< . iin.l tin- iii'iin ) UMVI 
 
 nnmarri'H. ( |,,| , 
 
 fcwr ! HIII It I!. 
 
 H,C ami N- 
 
 limiution iii . ! itu'r 
 
 - WllllOlit ;...!.-.. U-. J' t-,:ilU
 
 OF MARYLAND. 357 
 
 paid by my executor to mv nephew James Cvmmins, or to 1808 
 liis heirs, (if anv,) and the balance thereof equally divided ~v 
 
 Drui-y & r.eiNietl 
 
 between my brother J fop f well, and sisters Cassandra and v * 
 
 J _ .Negro Grace 
 
 .7m/," &c. The testator died on or about the 3d of April 
 3788, without having revoked, or in any manner changed 
 his will. Scmud Jtttrrlsort, the executor named in the 
 \\ill, renounced the same, and letters of administration 
 were granted to Dntry, oneof the defendants. After the 
 deal!) of the testator, J\Inry Jinn JJ ood his daughter and 
 legatee, obtained possession of the negro slaves; and being 
 so possessed of them and entitled to them, on the 9th of 
 October 1800, duly made her last will and testament in 
 writing, in which, among other things, i* as follows: "My 
 will and desire is, that all my negroes shall be free." 
 The testatrix died on the 7th of January 1801, in the seven- 
 teenth year of her age, unmarried; and without having any 
 issue of her body, and also without revoking or in any man- 
 ner changing her will. After the death of Zcbcdce ff'ood, 
 Jinn his widow intermarried irtth one Richard Brown, be- 
 fore the death of Mary Ann Wood, And survived Mary .flnn 
 Wood, and is now in full life, and has received her thirds of 
 the personal estate of Zebedce Hood. Hopewelland Cassan- 
 dra I food, the brother and sister of Zcbedee Wood, and lega- 
 tees named in his will, survived Mary Jinn If ood, and are 
 now alive, and Jinn, the sister and legatee of Zebedce, 
 died before Mary Jinn Wood, leaving issue still living 
 The defendants have obtained possession of the petitioner, 
 and have acquired and are invested with all the right, ti- 
 tle and estate, that Hopewell, Casvandru and Jinn, had in 
 the petitioner, and are to be considered in the same light 
 tiiat llopewcll, Cassandra and Ann would, were thej the 
 defendants in this cause. On this statement, the county 
 court gave judgment for the petitioner, and the defendants 
 brought this appeal 
 
 The case was argued before CHASE, Ch. J. BUCHANAN, 
 and NICHOLSON, J. 
 
 T. Buchanan^ for the Appellant, stated that the ques- 
 tion was upon the construction of the will of Zcbe.dce Wood, ' 
 whether Mary Jinn It ood took an absolute estate under 
 the devise to her in the will, or was it not an executory 
 devise to Jinn y the wife of the testator?
 
 358 CASES IN THE COURT ,OF APPEALS 
 
 1808 To show that it was an executory <levise, lie cit 
 
 * v ' JMk. Ccin 173. '2 t'f arm's Ex. l)rv 1, 73. Nichols vt 
 " IIom>cr, 1 /'. /////*. I'.iD. 'J'urL"t rs. finunt, Ibid. 
 
 KtkTlU OtM-T 
 
 Hughes vs. Sayer, Ibid 534. J'inbury vs. Elkin, Ibid 
 564. Forth \- y ( haj.num, Ibid 663. .Atkinson vs Hutch- 
 inwn, 3 P. /////*. 2;i8. Lampleij rs. lllou rr, 5 .tf/A-. S9G. 
 AYi/y rs Fowler, 6 liro. P. ('. :>(][>. Uooilt title vs. Ptgiltn, 
 
 iZ. 7. fl. r:n. mikinson vs Foutl* 7 T. /.'. 5.i. floe r. 
 Jfffery, Ibid 585. Fiarnes E > . 279, f37G.; 7)oe t. 
 
 e, I 7*. A 1 . 598; $ Trtijjord vs Jtochm, 3 .4/A-. 44'J 
 
 Johnson, (Attorney General,) for the Appellee, con- 
 tended that a devise over, after a failure of issue general- 
 ly, without restrictive words, was not an executory devise; 
 and that there was no executory devise in this casetow?mt, 
 the wife of the testator. He cited Love v Wyndham, 1 
 Lev. 290. Pcarse vs Ltn-r^ 1'ullex. 29. Earl cf Stafford 
 ts Buckh-y, 2 I'ts. ISH^ft^er vs Lloyd, 1 Ld. liinjw. 
 523. Jicauclcrk vs JJormajp dtk. 308, 312. Saltern vs 
 Saltern, Ibid 37G. jhrfficld vs I*rd Orrery, 3 Jilk. 287. 
 Lanesboroitgh ts Fox, Ca. temp. Tall). 2G2. Fearne, 322, 
 325, 341, 159. 2 Bac. M, 7G, 77. and Duvidge vs Clia- 
 ney, 4 //ar. <$ J///e?i. 393. 
 
 CHASK, Ch J. delivered the opinion of the court. The 
 question to be decided by the court in this case, arises under 
 the will of Zcbcdee Il'ood; what estate did Jinn Wood, the 
 widow of Ztbedcf Wood, take under the will? 
 
 It is a ptinciplc generally recognized by the courts of 
 law and equity, and the court think well established, that 
 where the lin.itation over is in fee, after an indefinite 
 failure of issue, it is not good as an executory devise, because 
 of its tendency to create a perpetuity by rendering property 
 vnalienable. In this case the limitation over is to Jinn 
 J/ooJ, du i ing her widowhood, and at her death or mar- 
 riage, to be sold, &c. It is stated that Jinn, (he widow, 
 married during the life of Mary Jinn Wood, the first de^ 
 visee, and is now living. 
 
 In expounding wills, the first and great principle to be 
 observed is, that the intention of the testator is to prevail 
 unless such intention is opposed by some rule of law. The 
 only rule of law which is supposed to stand in the way in 
 this case, is that which restrains the testator from limiting
 
 OF MARYLAND; 359 
 
 his estate in such manner as to create a perpetuity; and if 1808 
 that is no obstacle in this case, there is nothing to prevent 
 the testator's intention from being effectuated. 
 
 The limitation over to dun, during her widowhood, 
 plainly evinces an intention in the testator that she should 
 be benefited by the devise to her, which could not be the 
 case if her interest could not vest until the Unrestricted 
 failure of issue of Mary Ann, during the widowhood of 
 Jinn a mere possibility, and too remote to be in the con- 
 templation of the testator. 
 
 The limitation over to Jinn, during her widowhodd, con- 
 stitutes a good executory devise, because it was to take ef- 
 fect on the contingency of Mary Jinn dying without leav- 
 ing issue at the time of her death. 
 
 The only consequence which can result from Jinn's 
 inarrying in the life- time of Mary Jinn, is that the remain- 
 der ovei'j after the death or marriage of Jinn, did take ef- 
 fect immediately on the death of Mary Jinn, and such event 
 did not change or alter the quality or nature of the estate 
 created by the first limitation over to Jinn, nor did it de- 
 feat the remainder over. 
 
 The court are of opinion, that the judgment of the coun- 
 ty court be reversed. 
 
 * 
 
 JUDGMENT REVERSED. 
 
 SHORTER vs. BOSWELL. DECEMBER." 
 
 ArrE\t from Charles County Court. The appellant , . in "petition for 
 
 JrpttQOirij tnt? TIM- 
 
 exhibited to that court her petition for freedom against the ^J^.'K" ,!? h 
 
 witness was held 
 to he competent 
 
 1. At the trial the petitioner offered to read in evidence lunmund^i^ 
 to the jury, the deposition of Mary Lancaster, taken by o^the^tTt'i"^"; 
 consent of the parties, on the 24th of August 1803; where- bitdM know' 
 
 in, to the first interrogatory propounded to the witness, kMvfedx* ana 
 viz. ''Did you know Martha, or PatL who formerly be- *eothvthma* 
 
 ,,,,.*._ .f P S." As alM> 
 
 longed to captain John Lancaster, and from whom did he dm pet of the <fe. 
 
 get Patt:" she answered, '-that she knew-Patf, and always *>'""" "" "''''' 
 
 his mother, in her 
 it was generally reported, and^she always understood, that a woman named P S Jine"'"" thefVimi'ly 
 
 A.-ec..r.l book . C/iarl-t i-oiwy court, containing the certificate and affldivif of a priest in 1702. 
 lh.it he hid, in I'.il.,,, .y,,.-..r .Mir,/ 3 county, ii.arriej nc-,-.> , u ,n named L /?, to a v 1*1 woman 
 Tunned E S both . -wiiu* ot IV R, , ,m I nit of a ,, -.,. ' 
 
 . 
 aad the usue l>^ Uat awnase,aud wa tttui 10 be adiii!o r\>dice
 
 360 CASES IN Till: iNM'Ii ; 
 
 und.v~''''l she came fro-n Kap't't-l AV /', lint did no' 
 know it of her own knowledge, and heard that >!;( went by 
 tin- name of Putt .\"i >,;/ 1 ." Thij defendant olijcctcd t< 
 the wonU "and ahr.ivs understood that she came from 
 linjthncl Xcale, but did not know it of her own knowledge, 
 and heard that sh? went by the name of Patt AV/or/fr," as 
 not being competent evidence, and the county coui: 
 tained the objection, and refused to let that part of the de- 
 position be read to the jurv. The petitioner excepted. 
 
 The petitioner then offered and irave in evidence, 
 by Thomai Litncattcr, that his nrnher, M'try Lancastfr, 
 v as dead. Anl also offered to prove by the same wit- 
 nesp, "that his mother, in her life-time, told him that it 
 
 ,"ncrall}- reported, and she always understood, that 
 a woman named Pall, or Martha, came to the family of 
 John Lancaster from the family nf Rnphurl \mlr, of AV/////- 
 
 'i county." lint the defendant objected to it, as in- 
 competent and inadmissible ^vidence; and the county court 
 were of opinion that the same was not competent or ad- 
 
 iie evidence, and refuse*] to let it go to the jury. The 
 petitioner exccpfed. 
 
 S. The petitioner then offered and gr.ve in evidence, that 
 she was the daughter of a woman named ttrlliji who \\as 
 the daughter of a woman named .Sflra/;, who was the daugh- 
 ter of a woman named Belly ^ who was the daughter of a 
 woman named Martha, or /'.'/, who was held in servitude 
 by John Lancaster, of C/iarlc.i county, and that Patt un- 
 called Pali S/iortn; and had two sister*, namely Man;, 
 uh'o belonged to Eiticard \KI'<\ and Janr, uho belonged 
 to Rosti'dll .Vr,//r, and that /.' krurd and Jtosin-fl \catc were 
 the sons of ,1nlh.)ity AV./,',, of Saint Mary's county, who di- 
 ed about the year 172;"?. The petitioner ;\\-n -;a\e in evi- 
 
 . that John l.anca^cr married Elizabeth, (lie daugh 
 ter of Ittijthail \nili\ \\l\o was aUu the >on of .-Intliont/ 
 A'fo/c, and that Itnrthu, or Pall, was given to Jo/i.t f.an- 
 r.aslcr bv /, -rfc; that John Lte ^arafi t 
 
 named, to 7/r/i/v/ Dri^i-s, of Charles county, de- 
 
 !, 'who intermarried with Ilenrirtta, the daughter 
 of Joi.- I ler-, that /)ip:^cs sold /;/////, tlu- d;rj-htcr 
 
 of A'*///, to tlte delVndant, /! > ":;m:l tli.if th- petition - 
 r \\as born of Jktttj, aft-.-r the sale tifhcr mother to the 
 di-lVndaiit. The petitioner then produn < ord 
 
 uf Ctiarlei county court, aud offered to read in
 
 OF MARYLAND. S(U 
 
 dence an entry made in the said record, in folios 225 1808. 
 and 226, to prove the existence of a free white woman ^'Y ' 
 
 named Elizabeth Shorter, in the family of a certain \ViUl~ 
 
 BonNtt 
 (tin Roswcll. of Savti-Mary's county, and that she married. 
 
 a black man named Little Rubin, the servant of Roswell, 
 ami had by him three daughters, namely Mary, Jane and 
 Afurtlw, and that .Elizabeth Shorter, and her husband, 
 were given by Roswell to Jlathony Neale, and that Neale 
 married the daughter of RoswclL The entry was as fol- 
 lows: 
 
 "At the request of Mr. Anthony Ntale, the following 
 certificate and deposition were recorded: Maryland, ss. 
 Saint-Mary's county. These are fo certify, that in the 
 year 1681, or near about that time, I Nicholas GeiiHch, 
 Priest, the subscriber hereof, did join together in the holy 
 estate of matrimony, according to the then law, a negta 
 man named, to the best of my remembrance, Little Robin, 
 to a white w:iman, whose name was Elizabeth Shorter, 
 which couple all that time were both servants unto Mr. 
 7 1 'if Ham RosweU, deceased, and was after, as I am in- 
 formed, disposed of by the said jfo*#>e/?irotb Mr, Anthony 
 Ncak of Charles county. Certified under mj hand, this 
 15ih day of June, Anno 1702. 
 
 "Nicholas GeuiicL" 
 
 "Memorandum. The day and year above, came before 
 me, Mr. Geulick, and made oath upon the Holy Evange- 
 list, that the above aflidavit is the whole truth and nothing 
 but the truth. 
 
 "Jurat coram me, 
 
 ' 'Joshua Guibert. *' 
 
 "Maryland, ss. St. Mary's county. Emma Roswell, 
 widow, aged seventy years, or thereabouts, being sworn 
 upon the Holy Evangelist, declarcth upon her oath, that 
 she the said deponent was present at the marriage of the. 
 abovesaid couple, and that the ceremony was performed, 
 by the abovesaid Mr. Nicholas Geulich, Priest, and that 
 the negro man's name vas Little Robin, and the white 
 woman's name Elizabeth Shorter; and that they were, 
 at the time of their being married, both servants unto 
 this deponent's husband, JfrWium Roswell, deceased, and 
 bv him given and made over and delivered up unto An- 
 thony Nfale, upon marriage of the said Neule with Eli- 
 zabeth, the daughter of said ftoswdl, and have remained 
 VOL. n. 46
 
 302 CASE* IN THE COURT OF APPEALS 
 
 1808. In (lie said A'eale's seiVur -xer since; and that alter the 
 marriage of the said negro man and white \\oman, the 
 paid whit*- woman had throe mulatto girl children, named 
 ind Martha, who are now living lo the best 
 of this deponent'^ knowledge. 
 
 "This 13th day of June Anno 1702. Jurat cornm 
 me. 
 
 '.mi Ctii: 
 
 Maryland, St. Jl/i/n/'s county, ss. ( Kin and Queen 
 parish J June 6, 1702. Then recorded upon the record 
 book of the abovesaid parish, the two within aflidavits, 
 one of Mr. Nicholas Guelirk, Priest, the other of Mrs. 
 Emma RouwcJL This being a true copy as now givea 
 under my hand the day and date above, by me, 
 
 "Jf'rn. Ilavftt, C'lk. Ve-try." 
 
 "Entered on the records of Charles county, June the 
 25th, 170.V [See 3 Iltir,: *V M-Hen. 239.] 
 
 The petitioner further gave evidence, that the paper in 
 the record mentioned to be recorded, was not to be found 
 among the papers remaining in the clerk's office of the 
 county; and that the parish registers of Kin^ and ((Hern 
 parish, in Saint -Afar if s county, prior to the year 1744, 
 have been lost or destroyed. The defendant objected to 
 the admissibility of the entry on the record, a* evidence; 
 and the county court sustained the objection. The peti- 
 tioner exceptcd* There was a verdict and judgment for 
 the defendant^ and the petitioner appealed to this court. 
 
 The cau<*e was argued before CHASE, Ch. J. BUCHANAN. 
 and NICHOLSON, J. by 
 
 T. Buchanan, for the Appellant; and by 
 Cluipmun, for the Appellee. 
 
 THE COURT dissented from the opinions expressed bj 
 the court below, in all of the bills of cxcej)liony. 
 
 JUDGMF.NT REVERSED, AND flUiM- HK.NDO AWARDED, (d.) 
 
 fa) In tlif r:<* of Itiiirt Qttrrn, and C'liihJ, r.i. JJrplntrn, 7 
 , 290, ' irt of tin- f'nllfil .Vu/rs decided, tliut 
 
 c\ i'lcii'-r is incompetent to cstal>li>li am Mprfilic t..ct, 
 is in its natnri* s-isei-pTihlv- of hrin^ proved hy witin 
 vho sp-:ik from tliuir own knowlcdp-; :iivl ilmt fl;tims to frci-doip 
 in Marjlaiui .ire not exempt from tlut ^c 

 
 OF MARYLAND. 803 
 
 SIIKKLY vs. BIGGS. 1808 
 
 DECEMBER, 
 APPEAL from Frederick County Court. It was an action e^^^ 
 
 of Slander, and the declaration stated, that the plaintiff, ah > e s t ' lr 
 (now the appellee,) was a good, true, honest, and iaithiul In J B ^ tion of 
 citizen, and had always lived tree and wholly unsuspected *^^j 1 ^ *^e 
 of and from all manner of peijury, &c. yet the defendant, uUT'-i.'c^uie^lTii 
 (the appellant,) maliciously intending so injure the plain- ;L/7/ c ^u"- 
 lift' in his good name, and to bring him into public scandal, 'i''K''u^ui."',"idj^ 
 
 11- i ^ i-i liwl committed 
 
 ignominy and disgrace, and to subject nun to the pains and ptijur); u,at uie 
 penalties, by the laws ami statutes ot this state, made and lu^oathbew" a 
 provided against those \\lio are guilty of lalse swearing, oi to i>e acuuu- 
 
 * Uljlc. 
 
 on, &.c. spoke and published of and concerning the plain- Nowordi. 
 
 uonaUe uiileu 
 
 tiff these false, scandalous, and malicious words, viz. "He lht > imi>uit . 
 
 eiuuetoioe plain- 
 
 (meaning the plaintiff.) swore false, and swore to a lie," J' 1 ' ' wim-i* uiect 
 
 '/ him tu |iuuili- 
 
 (tneaning that the plaintiff had committed perjury, that he "'^. t . offlce of Ihe 
 had taken a false oath before a magistrate.) Ihe *ewnd * ntio g^fi* 
 count charged the defendant with uttering these words, to ."'"'.auJr'suiHci'cnt 
 ptner citizens, of the plaintiff: "He (meaning the plaintiff,) j" l "Hm U "2* 
 had swore false, and would, if he did not take care, lose '^l' ^ l',"'^ 
 his ears fur it," (meaning that the plaintiff committed per- i^n"b,o l , e thSr 
 jury before a magistrate.) The general issue was pleaded, ^"'"xlfiKt'a'Ty 
 and the plaintiff obtained a general verdict for 22 17 6"akeUitaaott 
 .current money. The defendant moved in arrest of judg- mtu- worth may 
 
 be UliuCL'atuud 1U H 
 
 ment, and assigned the following reasons: 1. Because the "*>< =""ni, 
 
 . ilicie n.u.i be a 
 
 words charged in the first count ot the declaration are <-<''<'.'i u the 
 
 JnliuUuttoi-y pui-l, 
 
 not actionable. 2. Because the words charged in the lu " <nv ""-y ci- e 
 
 tx>keu in u cniui* 
 
 second count are not actionable. 3. Because the words l "" >cl>si ' ol . lh<; y 
 
 ai-c LIU( 
 
 chai-ged in the different counts of the declaration, and al- Ut ;. u 
 
 leged to have been spoken by the defendant, are not so laid *"' 
 
 niake 
 
 1 . t . 1 . /^iTu? 
 
 and set forth in the said counts, as to entitle the plaintiff to "w^um.JuiuJ 
 maintain his action. 4. Because there is no colloquium ^9?** 
 set forth in the declaration, showing the words were spoken wLTswuuh l '* n/ 
 in reference to a judicial proceeding, or to what the words 
 spoken referred. The county court overruled the motion, 
 and rendered judgment on the verdict for the plaintiuj 
 From that judgment this appeal was brougnt. 
 
 The cause was argued before CHASE, Ch J. 
 NictioLSo.v, and GAVJT, J. 
 
 Taney and F. S. Knj^ for the Appellant, cited Holt 
 vs. SchcMidd, 6 T. R. 691. 
 
 Shaft/", contra, cited 6 Bac. Mr. tit. Slander, (B. 3.) 
 and Gruncth vs. Dern^ 3 Xey. 1GG.
 
 S61 CASKS IN THV.( WKTMV \ITlAlr~ 
 
 1808. Cuvsi', C'li J. dtlixcnd tin- opinion of the couit. There 
 
 are some principle- well established in ;u -lions of slander, 
 which govern the court in determining this 
 
 first. No words air actionable unites they impute a 
 crime to the plaintiff, which rabjecto him to punishrocm. 
 5 B/L Com. \-2Z. I It It r,v. S.-liuhJ-ild. G '/'. li. (i'.il. t.'.M. 
 
 Secondly. The office of the innuendo is to \| l;. : n 
 doubtful woids, where there is matter sutl';citn( in the de- 
 claration to maintain the action; and if ti.e words in (l.< n.- 
 selves are not actionable, their meaning cannot be txti nd- 
 ed by it to make them actionable. Holt vs. Scht-!<j 
 T. it. G!?4. 
 
 Tlnruhj. If the words mny be understood in a sen?e rot 
 criminal, there must be a colloquium in the inttudmtniy 
 part, to show they were spoken in a criminal sense, or they 
 are not actionable. 
 
 The void fir.-sji-oni, although in one cense it may im- 
 port piTJun, \ct it dncs not nut^Mirilij hi:j,l ij it ; li.ra per- 
 son may be forsworn without committing perjury; and no 
 extrinsic aid can be derived from the innuendo to -ivc the 
 words a criminal meaning. 
 
 It the words before the innuendo do not import slander, 
 no words produced by the innuendo will irake the action 
 maintainable. It is not the nature of aninniititdo to be^ct 
 an action. Forsworn, by itself, does notimpoit !. 
 otherwise of the word jurjvrid. Comets. Morton, Ytlv, 
 27. Holt r*. ScholrficM, G T. If, G94. 
 
 To make the word forsworn slander, it must be intro- 
 duced by a colloquium, setting forth seme juiiiri.-.l pio- 
 ceeding in which he was sworn. Core j .v. Murtn.. 
 
 The \\onU in the tleclaratimi thai^etl to have I t u. Bpci* 
 ken are, that "he, the sniil Jm-iJ/, U.-IH-( Jti/-<, ;u.<> 
 to a /tc." The subM'|uent word-, "meaning tliat the saitl 
 Jacob had comniincd |.cijuiy. that the said Jurvl had taken 
 u f.ii.-c oath before a magistrute,*' are part of, and come un- 
 der the hinveiulo. 
 
 The question is, whether these \\ordsare actionable? and 
 dmitte-1, if they are nut, the judgment mu-t 
 I, there being one defi'c;ti\r ioi:nt in the declaration 
 a general verdict and entire damage* having been -ncn. 
 
 The court arc of opinion they are not; and that the judg- 
 ment of the county court be reversed, and judgment on 
 the verdict be arrested. 
 
 JtUOMKNT HF.Vr.il SF.D, &.C.
 
 OF MARYLAND. 369 
 
 V>':. r\is vs. Si \I.UM;H. 1808 
 
 IH.CKMliRn, 
 
 APPEAL from f/zTr County Court. This wag an action * <r- 
 of trover, brought by the appellant against the appellee, 
 
 S l : i u 1 1 Jipi 
 
 for one hogshead of crop tobacco, weithmc GHBlbs. c. to 
 
 Innn prtiinirffro* 
 
 which the general issue vt as pleaded. At the trial, the '<' bniu R iiTi>y : .u 
 
 Ptliplojtr :if,Hiint 
 
 plaintiff Qft'ered in evidence, that in the year 1802, the de- hisov ". P! " tr l< "' t ; 
 
 J ti.u-i- Uie \a w uf 
 
 femlant carried to the inspection house at J.cice r Marl- "J',' 1 ,' 1 , 1 ',,,','',',' '"i', 
 borough six hogsheads of tobacco, which grew on the farm J;^ l '; ( ';| ^.f^.'"^ 
 of the plaintiff during the year 1802, while the defendant "a'^Vivuufthe 
 acted as the overseer of the plum tin"; three, of which I.OJE.S- !hrt"itr,iota 
 heads Were crop tobacco, one weighing, &c. three secr.t.d, i,; h>\iiipio)*r. 
 one weighing, &c. 'I l:at the tobacco was inspected in the tan.. It ;'i.i '^i i 
 name of the plaintiff, and the rotes delivered to the dc- *jir e "' UK -op 
 fendant, tube delivered by him to the plaintiff, but that th c s" ;.J;HM.,. m ci.- 
 
 trniliiuiibttnita 
 
 defendant delivered only five, and retained the one of 'the "" i : ""->' il 'i'- 
 
 J Innnj,' lhat t!u- 
 
 crop hogsheads weighing 988, and which he afterwards j',!,',.^ 111 ' ni ."'."J",^ 
 sold, 'i he defendant then produced and read in evidence, JJi"^'^'/,"/'"'"!!,^ 
 an agreement in \\iiting entered into between him and the tutititii'io'ixco'v^r 
 plaintiff, the execution of which was admitted, dated the 
 9th of September 1801, in which, among other things, it 
 was agreed that the defendant was to serve the plaintill as 
 an overseer for the em-uing year, 1802, and to receive 
 therefor the sixth part of all tobacco, &c. made by him ou 
 the plaintiff's plantation, with the Lands, ice. stated to be 
 found and furnished by the plaintiff. The defendant proved 
 that the six hogsheads of tobacco, above mentioned, were 
 made on the plantation of the plaintiff, while the defen 
 dant acted as overseer under the above articles of agree- 
 ment. He then prayed the opinion of the court, and their 
 direction to the jury, that if they should be ot opinion, 
 that the hogshead of tobacco sold by the defendant was 
 part of the crop made on the plantation of the plaintiff' 
 during the year that the defendant ucted as overseer nn<- 
 dcr the above agreement, that the plaintiff is not entitled 
 to recover in the present form of action. And the couit, 
 (Cantt, Ch. J.) upon this prayer, instructed the jury, that 
 if they should believe, from the evidence, that the tobacco 
 was made upon the plantation of the plaintiff, during the 
 year mentioned in the agreement, when the defendant was 
 overseer, and that there had been no division of the tobacco 
 so made, that the defendant had an undivided property iu 
 the tobacco so inspected by virtue of Ihe agreement,
 
 $65 * ^SES IN THE COURT OF A1TF.A i 
 
 that the plainlifl' could not recover in this action. Tlie 
 plaintiff exccptedj and the verdict and judgment being 
 again.-. t him, he brought this appeal. 
 
 The cause A as argued before CHASE, Ch. J. EVCHANAN, 
 and NICHOLSON, J. by 
 
 Johnson, (AHorney -General,) and Magrudcr, for the 
 Appellant; and by 
 
 U. J. Clagtll, for the Appellee. 
 
 THE COURT was of opinion that the defendant below 
 only a hired person; that that character was not changed 
 by his compensation being uncertain and depending on the 
 amount of the profit*; that he had no such interest in the 
 crop as would justify him in disposing of it, and that 
 having sold the tobacco in question, he \\as liable to the 
 plaintiff below in this form of action. 
 
 JCDGMKNT KEVEP.SiEU, AND I'HOCEDEKDO AWARDED. 
 
 G. & J. CHAPMAN vs. BRAWXER, 
 
 Vr"/-'"ii f APPEAL from Charles county court. An action of irts- 
 ,,''' pans quart dausumfregiti was brought by the appellants a- 
 tiust the appellee, for entering their cloe called (ir. 
 
 . c. The pleas of not. cm. and freehuld in the de- 
 
 '.":"*. fendant, as par . were pli-hded. 
 
 : v.a- joinwl to t!ie first plea, and a guu-ial replica- 
 
 ',i" tion put in to the second. The Uflendant ttnnurrtil to the 
 
 :, iratt replication, to \\liu-!i there was a joinder in demurrer. '1 he 
 
 called C U,at the 
 
 d county court overruled the demurrer, and directed the de, 
 
 , 1,11 Hie * 
 
 , ndant to answer over to the replication. A general re- 
 
 aded, and issue joined. The lands were 
 <i on phi:- retujned under a warrant .-f irr,r.i\, 
 :;-d for thai purpose. At ihe trial the pLintiiu gave in 
 
 .igo the fence, located on the 
 
 .' > '.';;! l ,'n ; -i't ll l' ^ ietoi of the land, located on 
 
 ^ i - III< 1 tailed T: 'JT*, and liu.t the fence 
 
 been uniformly kept up. They further gave e\,u'i 
 that between 50 and MMiv.is ago their father, J } t 
 Ch" -.-I possession of the trad of Ian. 1 located on the 
 
 plwth called (iryme'y Ditch, ai^l also of ail that part of the 
 tract called The Adventure, which lies on th. . of 
 
 the fence; that 1\ (,'!iuj<mun t in his> lile time, cultivated auU
 
 OF MARYLAND. 
 
 cat Wood on the land on the west side of the fence, and 1803 
 had full and uninterrupted possession of the same, claim- 
 ing it as his land; that on the death of P. Chapman* the 
 land descended to the plaintiffs, who have since cultivated 
 and cut wood on the same, and held possession thereof 
 Until the trespass mentioned in the declaration was com- 
 mitted; and that all that part of Thf. Adventure^ which 
 lies on the west side of the fence, has been called and re- 
 puted as part of Grime's Dltch^ and has been held and 
 occupied by the plaintiffs, and their father, as part of that 
 land. The plaintiffs then offered to prove, that the defen- 
 dant had committed the trespass, alleged in the declara- 
 tion, to the eastward of the black line as located on the 
 plots from letter B to letter C, the second line of Gnjme'-s 
 Dilcii* as located on the plots by the plaintiff, and on the 
 west side of the fence. But the defendant objected to the 
 admissibility of the evidence, and contended that the 
 plaintiffs were not competent to give evidence of any tres- 
 pass committed on that land; and the county court. 
 (Gantt, Ch. J.) was of opinion, and so directed the jury, 
 that the plaintiffs were only entitled to recover for a tres- 
 pass committed by the defendant within the lines of the 
 tract called Gsyme's Ditch, as the same is located on the 
 plots by the plaintiffs. The plaintiffs excepted; and the 
 verdict, and judgment being against them, this appeal was 
 brought. 
 
 The cause was argued before CHASE, Ch. J. BUCHA- 
 NAN, and NICHOLSON, J. by 
 
 T. Buchanan, for the Appellant; and by 
 C. Dorsey, for the Appellee. 
 
 JUDGMENT AFFIRMED. 
 
 SMITH & BUCHANAN vs. GORTON*. 
 
 APPEAL from Baltimore. County Court, rftsumprit by ,Ju ' 
 the appellee against the appellants. The declaration con- 'oT 
 tained two counts. The general issue was pleaded; and !!riiTi$ of" 
 at the trial the plaintiff offered certain testimony in evi- ?SV' '}, 
 dence, The defendants objected to the testimony being Tr!*,,/. 
 given to the jury in support of the is^ue joined on the se- rfalj/ * *"' c> 
 cond <count ju the declaration; but the county court,
 
 363 CA<K< IV THi 1 OF AI'I'F. VLS 
 
 I (ft- J.) overruled th- ohj.'c.tnn, and per- 
 
 mitted the evident en to ti, 
 
 da MI-* excepted; and the verdict and judgment being for 
 the pluintitV, they appealed to thi> coiuf. 
 
 The can*.- .vas ar^upd before CJIVSL, Ch. J. BCCHAXAV, 
 -.-OLSON-, and (i \\ i i, .!. by 
 
 llnrjn-r\\.'\ 1 Pt'-rinnrc, for the Appellants^ and by 
 11 inJer and Roffcrs, for the Appcli- 
 
 TIP: r. -,;-'<-i wi-i-e of opinion tlut there was error in the 
 form of proceedings, the second count in the declarntiou 
 tvi'i^ d'fecM\v: but they concurred in the opinion express- 
 ed by the court below in the bill of exceptions. 
 
 JUDGMENT HEVEKSKl), AND I'KOCEUENUO AWARDED. 
 
 n Minn vs. J!r, I:\KS 
 
 AriT.vi. from Chtirttn County Court. An action oi 
 >i^il %v;i> bi-oii!;ltt by ii- ap;'(-i!ant a-iinst the 
 
 0, and tlr.r declaratitin contained counts, for innnn/ Jin-l 
 
 n'i VcViIm "' ffi-fli'i' V, for the pricr. of a gdilin-f v//7, a fjn'tnfun 
 
 ' '/ for a o;eldinj; s'dd, for money paid, laid ovl and 
 
 iT!|' ,.'1 .f>niJi ,'. and for inonrj/ lent and uthwnwl. T'ne general 
 
 ssue 'AH- pleaded. At tlie trial the plaintiff gave in evi- 
 
 'iit sorin-time before the briny;in}; the action, he 
 
 : MM., mi.) ; \vith ill*' defendant to sell II'UM a hoi>r far the sum 
 
 , ,i .iiii nut 
 
 I S^JO, and that the deiemlaot agreed to pav that .^nm loi 
 
 IKlill.-, DC fit* 
 
 the hot sc; that the horse was to be delivered on the pay- 
 ment of the price agreed upon. That on the day after 
 the ii^i-cetnc-nt, the deft-ndarit sent to the plaintiH' the pa- 
 per jiiddured, purporting to be a bank note of the Batik of 
 Jia'timore for 100. That the prr-.m by whom the note 
 was sent delivered it to the plaintiff, who, before receiving 
 it, a*ked the opinion of o-ie M-I'hrrwn whether the note 
 nine or not, who \va of opinion that the note was 
 ,'ii'ic. That the plainlifi' deliv.ired the horse, accor- 
 ( li; .[.-fendant's re|'ie-,t, to the ptron by whom 
 
 tlie defendant had sent the note, and the plaintilF also, at 
 the same tii;. lin'Z '" tbe dffeinlam'. n-.ini^f, jwid 
 
 to ,,..f.n the dcfiMidant, 8^". bein^ the dif- 
 
 fi-rviicc betwoeil the sum -perilled in (lie note, and the 
 y. C of the horse. Tliut the defendant received the g40.
 
 OF MARYLAND. 369 
 
 The plaintiff then gave in evidence, that the note was 1809. 
 forged. There was no evidence that the defendant or * ^~ J 
 
 I . i ,. Keyi fc Heron 
 
 plaintiff knew or suspected that the note was forced, nor 
 
 Ooldtbufooch 
 
 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 in- 
 struction to the jury, and the court, (Key and Clarke, 
 A. 3.) according to the defendant's prayer, were of opi- 
 nion, and did instruct the jury, that if the}' 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, although the note was forged, unless 
 he knew that the note was forged when he delivered it tu 
 the plaintiff, or had endorsed the note, or expressly war- 
 ranted it to be a genuine one. The plaintiff' excepted; and 
 the verdict and judgment being for the defendant, the 
 plaintiff brought this appeal. 
 
 The cause was argued before CHASE, Ch. ]. BUCHANAN, 
 and NICHOLSON, 3. by 
 
 T. Huchnnan, and Chapman, for the Appellant; and by 
 C. Dorsey, and Baker, for the Appellee. 
 
 JUDGMENT REVERSED, AND I'ttOCEDENDO AWARDED. 
 
 KEYS & HERON vs. GOLDSBOROUGH'S Lessee. JUNE (E. S.) 
 
 APPEAL from Dorchester County Court This was an .levi^lc^T'li' 
 action of ejectment brought by the present appellee, (the t ate, a to U hl ?i 
 plaintiff in the court below,) to recover possession of a p 3 !,,!!^" of hi" 
 tract of land called EnnaHs^s Inheritance. The defen- ofa'Vaie^uLd'^ut 
 
 ancii'Mi l>v them 
 to Wf. of a part ofilie mil nUMe. fn^tber wiih nxMnornmliim ofthf sa'c. MilHcriln-il by the 
 
 uiii'tiuiiei-r, ami a r-ei-i|>t i;ivMi li> i|icu> fur the ptirrtiMie iiiune y HcM tn ho aiimisjibie evidence to 
 
 >liciw nti.- t IHW in W (i. wiihnut :i ili-eil ut Iwi y mi anil sale, or other vonvrjauuc. to him from the 
 
 'vu^tc' K, aiul lo lie <iH'n'i< -nt to enable his a -\>vf ui iei:iiver fiich real eitni.e in :in aetiiin ot>j-ctrao..t. 
 
 H II. hy liis will, ill v.v I ns-f..i' 'W<: "I jrive am) ht-qii>-r.li 'into my il.-sirly lx-l\cfl son, 'C II, thft 
 
 YOL H
 
 870 CASES IN THE COtJRT OF APPEAL* 
 
 1809. dant-, (now appellants,) appeared ami took general defence. 
 1. At the trial the plaintitV proved that Jrcliitxiltl Patti- 
 sort, on the 9th of August 17'.M. l>'mg -.-i/cl of the lan.l 
 for which the atti'm was bi ought, and of other lands, duly 
 made hi- will, in which he stated, that he meant and in- 
 tended to dispose of all his estate, real and personal, and 
 to charge all his real estate with the payment of his just 
 debts, lie then devised to hit friends, Chnrlrs Ciook- 
 shanks and Archibald Moncreiff", and the survivor of them, 
 all his real and personal estate, to be sold and disposed of 
 by them, in as full and ample manner as he himself could 
 dispose of them, for the payment of his debts, leaving the 
 manner of such disposition entirely to their own judgment 
 and discretion; but it was his request und direction to them, 
 that his lands on Trumtqiiakin river, bought of captain Eu~ 
 na//.v, ami those bought of Slm'tirl, should if possible be re- 
 served, together with those taken up by him, which adjoined 
 those purchased of S/et/xirf, but more particularly the dwel- 
 ling plantation where col. Hnrthnloinew Lnnall* resided, 
 vlmh he directed should be last sold of any of his real es:. 
 and if possible reserved for his daughter. And, after th<? 
 payment of his debts, he gave and bequeathed to his dear 
 daughter, Mary Pattison, and the heirs of her body, all 
 his estate real and personal, &c. He appointed Crook- 
 ihanka and Hionrreijff, executors of his will, and trustees 
 for the sale of his real and personal estate, and directed 
 that the said powers should be fully delegated to the - 
 vivor in case of the death of either, and that such survivor 
 might delegate the same to his executor, if not before fully 
 executed. The plaintiff' also proved* that Patllson died, 
 seized of the land in dispute, and that after his death, 
 DniAfctAonfo and ^fonc^f(^/\ on the 3d of December 171)1. 
 caused the will to be duly proved, and on the same day 
 renounced their right to the executonthip. The plaintiff 
 also proved that Crookshunk* and Monrrrtf took upon 
 themselves the execution of the trusts mentioned in the 
 vt ill, and of the powers and authority therein contained 
 and limited, and that afterwards, on the 15th of October 
 1792, they exposed the tract of land called /;,ma//*' //i- 
 heritancci and also oilier lands, to <ali* at public auction, 
 for the purpose of Tigr the debts of Puttison, ami 
 
 in pursuance of the trusts, and that the lessor of the plyio- 
 tiff became the highest bidder and purchaser thereof, tf*
 
 OF MARYLAND. 
 
 the lands were sold and struck off to him by the trustees. 1809 
 The plaintiff also gave in evidence the auctioneer's bill or S-^-v-^ 1 
 memorandum of the. sale, subscribed by him, which sub- 
 
 GoMshorough 
 
 scnption, he being dead, was duly proved; and also the ex- 
 emplification of a judgment recovered by faoncreiff, as 
 the surviving trustee, against the lessor of the plaintiff, for 
 the purchase money arising from the said sale: and also a 
 receipt given by Afoncteiff to the lessor of the plaintiff, 
 for the payment of the money so recovered, under the 
 hand and seal of Moncrcifl', duly proved, which payment 
 was made before the commencement of this ejectment. 
 The defendants objected to this evidence, and contended 
 that it was inadmissible and incompetent to show a title 
 at law in the lessor of the plaintiff to the land claimed in 
 this ejectment; and moved the, court to direct the jury, 
 that unless the plaintiff should produce and show a deed 
 of bargain and sale, or other conveyance, duly executed* 
 acknowledged and enrolled, according to law, in the usual 
 forms of law, to the lessor of the plaintiff, for the land so 
 sold, the plaintiff was not entitled to recover. But the 
 court, [P0M-, Ch. J. and Robins, A. J/J were of opinion, 
 and determined that the evidence was admissible and com- 
 petent to show a title at law in the lessor of the plaintiff, 
 without a deed of bargain and sale, or other conveyance, 
 and directed the jury, that if they believed the evidence, 
 the same was sufficient to enable the plaintiff to recover. 
 The defendants excepted. 
 
 2. The plaintiff then proved that Robert Heron, on the 
 29th of June 1788, being seized of the tract of land called 
 Ennullffs Inheritance, mentioned in the declaration, duly 
 made his will, and thereby, as to such worldly estate as it 
 had pleased God to bless him with, he devised as follows: 
 "It is my will, and I do order, that in the first place all 
 my just debts and funeral expenses be paid and satisfied, 
 //em, I give, and bequeath unto Elizabeth, my dearly be- 
 loved wife, during her widowhood, the use of all my estate 
 real and personal," &c. "When it shall please God to 
 take to himself my dear and loving wife, then my will and 
 desire is, that my estate, both real and personal, be given 
 and bequeathed in manner following: Item, \ give and be- 
 queath unto my dearly beloved son (Julhbcrt Heron, the 
 free u&e of my land whereon I now live, called Ennalls^s 
 Inheritance, bing by estimation abuut 300 Acres, with a4i
 
 373 I N" THE COURT OF APl'E A I ..- 
 
 isoo houses tod hn|MrvtViMt8 (hctcenv dvHng Ait fMftiftl 
 
 ^ v ' life, to occupy am! enjoy tin- saint-: arid alter tlie decease 
 ^ ' <if niv said son Culhl'frt Heron, ] ^ive and bequeath tli- 
 
 GoMsburowgh 
 
 aforesaid lands called nnoUi f i Inheritance^ with all the 
 houses and improvements thereon, unto llic Itnr.t of my 
 said son Culhhcrt H(ron, Innfi'lh/ nf his bixlif, 
 
 for frfr; and for want of such heirs, I {jive and bequeath 
 the aforesaid lands called I'nnalts'x Iiihrritvnrp, with t!ie 
 improvements thereon, unto my dearly beloved son llobrrt 
 Heron, and the heirs of his body lawfully begotten, for 
 ever; and for want of such issue, to my dearly beloved son 
 Charles Ilcrnn. and the heirs of his bodv l.iwfullv begotten. 
 
 . O 
 
 for ever, and for want of such issue, to my four daughter-. 
 to be equally divided amoii^-t t:r--n, and the heirs of their 
 bodies lawfully begotten, for ever. 7,Vn?, I yive ;;nd be- 
 cjiic^h to my belo>ed ?nn Ko1>frt Htron, a tract of land 
 called Heron s Fin>t Jlddilion. Ctr arres, unto him the 
 said Rnbcrl 7/cro/j, and the heirs of his body lawfully !)- 
 gotten, for ever/' There was a fhnilar devi-e of L'rron's 
 Second Mtlihon to his son Charles. The plaintiH' further 
 proved, that bcini; so si/.ed, the said last paired testator 
 afterwards died, leaving the lands and tenements in his \\ill 
 mentioned, and the several children therein also mention- 
 ed. That Elizabeth Heron, the widow of the testator, 
 sunived him, and entered into the premises devised to 
 lier, and held the same during her widowhood, which ended 
 with her life in (he month of December 1803, when she 
 died. That C-flh(jrrt Heron, the devisee in the wil! men- 
 tioned, also survived the testator, and oti the 2Ist of May 
 1784, being of lawful aj;o, by deed of indenture dulv ex- 
 ecuted, acknowledged and recorded, he granted, bargained 
 and sold, Ennalls's Inherilnnrr. with other land, wi;h (he 
 appurtenances, to Jirchibtthl I'ntfi.wn, and his heirs, in /',-. 
 simple. 11 ruler whom the lessor of thr plain tiff claims. That 
 Cuthbcrt Itcnm afterwards, in ihe year 171-0. died, leav- 
 ing lawful if ''ihcrl Heron, one of th tlefeudanfs, 
 }.is eldest son and heir at law. The defendants objected 
 to the title claimed by the plaintiff, and contended that 
 Cnthbert Heron, under the will of Robert Heron. ti-i-U 
 only an estate for life in the lands devised to him, and 
 had no lawful power to make a conveyance of fir- 
 lands tx>yond his natural life. ]',! 'ne court, [Itoljins, 
 A. J.] was oF-opinion, and decided, that Culhicrl Heron.
 
 OF MARYLAND. 
 
 S73 
 
 took an estate intail general in the laruh devised to liim 18C9 
 by Robert Heron, and therefore had lawful power, accor- 
 ding to the laws of this state, to make the conveyance of 
 ihe 21st May 1784, and directed the jury accordingly. 
 The defendants excepted. Verdict and judgment for the 
 plaintiff, and the defendants appealed to this court. 
 
 The cause was argued before CHASE, Ch. J. BI'CIIAXAN-, 
 and NiciroLsoN, J. by 
 
 Hammond, Campbell, Carmichael, and Kerr t for the 
 Appellants: and by 
 
 Martin, llullilt, J. Bayly, and IV. 7?. Martin, for the 
 Appellee. 
 
 THE COURT concurred with the court below in the 
 opinion given as stated in the firxt bill of exceptions: but 
 as to that expressed in the second they gave no opinion, 
 in consequence of the parties wishing to effect a compro- 
 mise. 
 
 JUDGMENT 
 
 iEKE's Adm'r. I). B. N. vs. BEANES. JUSE. 
 
 EHKOR to the General Court. Debt on a bond for the 
 payment of money, dated in- 1797, executed by the intes- 
 tate of the appellant to the appellee. Payment and plene " 
 ailminisirarit were pleaded, to which there were the gene- 
 ral replications-, and issues joined. The facts were these: 
 The bond, on which the suit was brought, was executed 
 by Frank Lecke, the obligor, who died intestate, and 8. 
 Lecke took out letters of administration on his estate, and 
 gave bond as the law required, for its due administration. 
 S. Lccke died intestate, without having returned an inven- 
 tory on the estate of F. Leeke. S. Hepburn, the defend- 
 ant, (now appellant,) after the death of S. Lechc, took out 
 letters of administration de bonis non on the estate of F. 
 Lecke, and gave bond for the due administration of the es- 
 tate of F. Lccke, unadministered by $*. Lecke. Jicpbnrn 
 did not return an inventory on the estate of/! Leelcc with- 
 in twelve months from taking out the letters debonisnon, 
 jior had he done so at the time of bringing this suit. The 
 question submitted oil these facts to the court was, whe-
 
 < tSKS IN T1IK COUUT OF 
 
 tLer ' --uffirivnt to dnr^c the defendant below 
 
 with tin- debt for which (he Miit ;:s instituted? 'I'hc %e~ 
 iK-r.il court, :it October (emu 1804, were of opinion they 
 v. eit MI (licit 1 nt. arid ^av judgment for the pl;iiatill'. 'I'hc 
 tlcfeiulant brought l!ie present writ of error. 
 
 The cause was argued in this court before POLK, 1' 
 
 CHAV.V, Nl< HOI.MJN Lt!ld I'.'.Ml., J. 
 
 din Cruder, for the Plaintiff in error, cited Morgan vs. 
 AA.'ik, tt V.T. (ante f>8.) Wilton's rx*r, vs. .V///. ' 
 :: aiul Pinked Eild. 345, 34ti. 
 
 A'// /.///", for the Defendant in error, cited Swirib. 420; 
 ami the act of 1798, ch. 10J. 
 
 JUDGMENT HEVERSKO. 
 
 Jv- GAXTT vs. BOWIK'S Adm'r. 
 
 SAME vs. SA.MK. 
 
 ArrF.iT.s from Prlvcf-Gconr^s County Court, They 
 
 mi un-ty for f P, J 
 
 ^'inr'i"! 1 o"' Ao C we i' e two Actions of </r;6/ on joint arid several bonds, giwn 
 
 if *** *' ie Appellant, as -trustee appointed by (he court of 
 
 ^-. r ''V.viMK chancery for the sale of the real estate of J. L\ < > y/(W. 
 
 ,ai olr n",i each by F. Howie, with the ap r ellee's intestate, and J. 
 
 bi ^"efirimVi.* /irvwn, his sureties^ each bond M-HS conditioned for the 
 
 . lunutrmMi r paymer.t of 19 5 0. The (kTendant, (now ap; 
 
 i each ca>e pleaded jun/mcnl by his intestate, to which 
 
 !,ere was the jrcneral n-itlication, and i>m- joined. 
 
 ,, 4 
 ! 1. At the trial of the nrtt cause at -v term 
 
 
 
 o'^VIn 181- after the jury were sworn, the defendant produced 
 ml i.fti-rrd to filetlie following account in bar. "Thomas 
 
 off-T'd < r< art a 
 
 mi-r .i, f; rt ^/ ? trustee for the creditors of John Evcri/Uld. to 
 
 Cfl f. * 
 
 !".J<ltr Hu'iir, Dr. 
 
 To the sum adjudged to be due me by the chancel 
 )<r as my {uoportion of the anjount of the sn 
 John 7. 'i real estate, 
 
 -" ill- m i i ,l i n' i i I 11 . .1 
 
 To which (he plaintiff oDjecteu. But the county 
 M" overruled the objection, and permitted the account to be 
 filed, and the same \>a* filed. Tlic plaintiff excepted. 
 
 'l '!. 
 
 ,- i.ijit r r.f ihr nir.i clue to F B abn\r nL'Dt d, ii.t! daiiiii-il lo be Ct 
 
 ^-LIJ In liirn mil nf \hr fro- 
 
 n .1 ! U 
 
 tr.lili We.' , ^ct WM nwl ...
 
 OF MARYLAND. 
 
 '2. At the trial of the second cause at .fyriV term 1 802. it 1 800 
 having been agreed between the parties that the plea of 
 discount might be pleaded and made up in a regular man- 
 ner, and that any tiling might be given in evidence, which 
 could legally be given in evidence under that plea, the 
 plaintiff offered in evidence, that the bond on which this 
 suit was brought was given by F. Bowie, as the principal 
 obligor, and A. Bowie, deceased*, And J. Brown, his sure- 
 ties, to the plaintiff, as trustee for the sale of J. EversfieliFs 
 real estate, and that the money claimed to be due thereon 
 is not claimed by the plaintiff in his individual capacity, 
 but as trustee as aforesaid. To establish the plea of dis- 
 count in this cause, and to have the account in bar men- 
 tioned therein discounted out of the bond on which this 
 suit is brought, the defendant offered in evidence a copy, 
 under seal, of the decree made in the court of chancery 
 in the case of the creditors of John Eversfidd, deceased, 
 against Mary, his only daughter and heir, decreeing that 
 the real estate of the said Eversficld, which descended to 
 his daughter Mary, be soUl for the payment of the debts 
 of her father, and that T. Gantf, (the plaintiff,) be ap- 
 pointed trustee to sell the said real estate; that he should 
 divide the purchase money into six or more equal parts, 
 and take a separate bond for each part, in ordar that the 
 same might be assigned amongst the creditors in case they 
 should so elect, anil it should appear to the court proper to 
 be so done. That he should bring into court the money 
 arising from the sale, to be applied in satisfying just claims 
 against the deceased. Also a copy, under seal, of the re- 
 port made by the trustee of the sale of the said real estate, 
 and the chancellor's order ratifying the same; and the au- 
 ditor's statement of the proportions due to the creditors, 
 and among others, to F. Bowie, of ^28 12 I, and 
 18 18 Ijto/ 1 . Bowie, & Co. T" 14 4; to Ji. Bowie, 
 (the defendant's intestate,) 6 16 11, and to Contecs and 
 Jjowies \5 17 10. Which statement was approved and 
 ratified by the chancellor. The defendant also offered to 
 prove, that F. Bowie mentioned therein, is the same F. 
 Bowie mentioned in the bond on which this suit is brought. 
 The plaintiff objected to the copy of the decree, &c, being 
 read in evidence. But the court, [Sprigg* Ch. J.]} over- 
 ruled the objection, and permitted the same to be read, and 
 it Wft read accordingly. The plaintiff Cxceoted.
 
 376 i ASES IN THE COUttT OF A'.M'KALS 
 
 1SOP. .-,. The plaintiff (o prove that /'. Brut-it, was one of the 
 
 i (ln administration bond on the perM.i.a! 
 of J. A'ci r*ful. I, and (hat the personal estate had been luir,- 
 applied, and not loyally administered, ofl'cred in evidence 
 the administration b>nd, arul an account signed by F. 
 Jiotrie, for the administratrix, and intending to prove 
 thereby that /'. Jion'ic was not er.titled to a proportion of 
 the sales of the real estate o! .7. ver*field, equal to the 
 hums awarded to him. Tlie defendant objected to the 
 same bem;j proved and read in evidence; and tne county 
 court, [fyrips, Ch. J. ami Duckett, A. J.] being divided 
 in opinion, the same was not permitted to be proved or 
 offered in evidence. The plaintiff exempted. Verdicts and 
 jui'^meuts in both cases for the defendant, and the plain- 
 tiff prosecuted these appeals. 
 
 The cnn^rs were argued before CHASF, Ch. J. 
 x, NICHOLSOX, ami KUILE, J. bj 
 
 -, for the Appellant; and by 
 T. Buchanan, for the Appellee. 
 
 THK COURT dissented from the opinions of the conrt 
 Iwlou, ^iveii iu the /<V.s7 and second bill* of exceptions, as 
 herein staled, and concurred with that court in the opiuiuu 
 in the Ihird bill of exceptions. 
 
 JCDGMEXTS REVERSED, AND PROCEDENDOS AAV A JlDF.D.' 
 
 JUKR. BAHM - fl. HLACKISTO.V, et a/. 
 
 APPEAL from Charles County Court. This was an ac- 
 '">ti of avtiUiiifixtt, brought by the appellees, aiul entered 
 ,' H "H',!!,J f'r the use < ' Ilohcrtson, aj;aiii-,t the appellant. The 
 
 -c!:iration contained a count for goods, wares and mer- 
 Ih^ti^r'Tiid^chandizM, properly ch,ir-e;d)le in account, a> by a pirticu- 
 I .1 a 'Hint, ivc. a count Kir iu;iney paid, laid out and ex- 
 .-nili-d, and a count on a quantum mcn<if for ^oods, &c. 
 ' prnperfy ( har^eable in account, sold and delivered. An 
 o-.mt v..i> fded \viih the declaration, in \\liii-li1he. defen- 
 : .: ..c'd :i- debtor to the plaintiff-. <\ "f 
 
 ITDO, "to 1 hhd. sugar, p. bill p. Mr. .In inn 
 
 
 
 i ni.p.-U. iorir. will r.-iniii a HIP . 
 - .. . .. n i -,u uJ dul fc-.c * difvclwn w (he j'ir>, although uu :..-
 
 OF MARYLAND. 377- 
 
 tit>ert*on, on 90 days credit, SIT4 55." At the trial of 1809. 
 the cause, the defendant moved the court to direct the 
 jury, that if they find from the evidence that the plaintiffs 
 sold and delivered to the defendant the sugar mentioned 
 in the declaration, under a parol agreement with James 
 Robertson, (for whose use the suit is endorsed on the re-. 
 cord,) that he Robertson would pay for the sugar if the de- 
 fendant did not, and that Robertson did pay the plaintifts 
 for the sugar, in virtue of his agreement, at the request of 
 the phiiniifl's, that then the action cannot be maintained in 
 the names of the plaintiffs, for the use of Robertson, but 
 that Robertson should have brought an action in his own 
 name for money advanced, or laid out and expended, 
 for the defendant. Which opinion and direction the 
 county court, [Sprigg, Ch. J.] refused to give to the 
 jury. The defendant excepted; and the verdict and judg- 
 ment being for the plaintiffs, the defendant prosecuted this 
 appeal. 
 
 The cause was argued before CHASE, Clu J. BUCHANAN, 
 and NICHOLSON, J. 
 
 T. Buchanan^ for the Appellant, contended, that the 
 judgment of the court below must be reversed. That it 
 was too plain a case to require an argument. 
 
 Shaaff* for the Appellees. The claim is a proper one 
 against the appellant, yet the action may have been mis-^ 
 conceived. This court can only look at the declaration 
 and the bill of exceptions. The court below were right 
 in refusing to give the opinion prayed for, if there was no 
 Evidence in the case. There are no facts stated in the 
 bill of exceptions, but a hypothetical opinion prayed to be 
 given by the court, which the court very properly refused 
 to give. No evidence was offered that the money was 
 paid by Robertson, or any agreement that he would pay it, 
 if the defendant did not; and this court cannot say that 
 the court below erred in refusing to give an opinion where 
 o facts were proved to justify such opinion being given. 
 It is not stated that the defendant offered to prove the fact 
 of payment by Robertson, nor that the plaintiffs had been 
 paid. If the judgment is reversed, this court will say 
 thai the opinion ought to have been given by the court be- 
 !ow, although founded on no facts. It cannot be inferred 
 TOL. n. 48
 
 CASES IN THE COURT OF 
 
 1809 by <!iis court judicially, that there was any evidence offered 
 at all. This court cannot travel out of the record. It is 
 important that facts should be stated; and this court can- 
 not reverse this judgment, as there was no statement of 
 facts upon which the opinion and direction, as prayed, 
 could be given. 
 
 T. Ruchanan* in reply. Hypothetical opinions have 
 been often given in the lale general court, and courts do 
 so when they do not require the whole facts spread upon 
 the record. It is done to prevent the drawing up the 
 farts, and crowding the record, and to save expense to the 
 parties, Such was the practice in the cases of /*airrcnce 
 vs. fievalt) (October term 1794. ) Mahony vs. rfshton, 4 
 Ilarr. Sf M"Hen. 296,. 505. Newman vs. Bforrti, 4 Hurr. 
 $ Mllen. 421. Queen vs. Jlshton, S Ilarr. <$ J/'//rn. 3.i9. 
 Jforthbifflon vs. filthy, (October term 1791;) and /. 
 vs. AAddletorii (May term 1T93.) Will it be said, that 
 because no facts are stated, this court will not review 
 the decision of the court below? It may be inferred that 
 the evidence was offered, or the court below would not 
 have been called on to give the opinion and direction a<? 
 prayed. 
 
 CHASE, Ch. J. In every case where the court are ca'led 
 upon to give a direction to the jury, the facts should ap- 
 pear, and the opinion of the court will depend upon the 
 nature of the evidence, and unless it does appear what the 
 facts are, it cannot be said the court erred in their opinion 
 by refusing to give the opinion asked for. If a contrary 
 practice prevailed, the court might be called upon to decide 
 upon questions not arising in the case. I am of opinion, 
 that the bill of exceptions in this case ought not to be re- 
 tained by this court. 
 
 BUCHANAN, J. As the court below has not stated that 
 they refused the prayer, because the facts were net - 
 or proved, this court are bound to decide on the law in the 
 case. The most regular way would-be to state the (acts 
 or that there were no such facts, if none existed in the 
 case. If in this case there had been no facts to justify 
 the opinion being given, the plaintiffs should not have 
 in the bill of exceptions that the facts did not exist. As 
 a matter of practice, the evidence should be stated. It is
 
 OF MARYLAND. 37$ 
 
 my opinion, that the bill of exceptions taken in the case 1809. 
 ou^ht to be retained. _ l ~ ~* "~* 
 
 LoudermMI 
 
 v$ 
 
 NICHOLSON, J. concurred with BUCHANAN, J. 
 
 JUDGMENT REVERSED. 
 
 
 LOUDE^MAN, Garnishee of HARRISON vs. WILSON. - JUNE 
 ERROR to the General Court. Attachment on warrant: A .'""l of >- 
 
 ' ney due owiug, 
 
 and the case was, that at the time of issuing the attach- p?e s , wh " g ^nenc 
 
 ment from the county court, Harrison, the original defen" work"nd ftbou". 
 
 dant, owed f-Tifson t the plaintiff, (now appellee) the amount m a n? 
 
 of the account exhibited; Louderman, the garnishee, was " 'tacln 
 
 indebted to Harrison in the sum of g35, which sum, by m^!5 
 
 express agreement, was to be paid and satisfied in work 
 
 and labour by the garnishee for Harrison, when requested. 
 
 No demand was ever made upon the garnishee- ta do the 
 
 work, but he was always ready to do it. The county 
 
 court decided, that it was not a credit in the hands of the 
 
 garnishee which could be attached in virtue of the acts of 
 
 1715, ch. 40, and 1795, e/t. 56; and judgment being render- 
 
 ed for the defendant in the county court, the plaintiff ap- 
 
 pealed to the general court, where the judgment of the 
 
 county court was reversed at May term 1804, and zproce- 
 
 dendo awarded, The appellee brought a writ of error to 
 
 this court. 
 
 The cause was argued before POLK, BUCHANAN, NI- 
 CHOLSON, and EARLS, J. by 
 
 Kell, for the Plaintifl in error, and 6y 
 Gwynn, for_the Defendant in error. 
 
 JUDGMENT OF REVERSAL AFIIRMEB.
 
 380 CASKS IN THE COURT OF APPEALS 
 
 HAM. vs. GirriNos's Lessee. 
 
 ERROR to the General Court. In this case there wan a 
 proccilendo from the late court of appeals, diu-i-tin^ a new 
 I'tino tr j a i of an action of ejectment, (which had been tiii-d in the 
 
 If O* noarwon 
 
 of iand^ W^pono j, enera | COU it a t May term 1800,) for 50 am - ol arable 
 w n hVch r 'ne-drii n.', land. 1 acres of meailow, and K ;iur, of wowiiand, being 
 mnr'thr'part of a tract of land called //;//' / -. -i',utr in ///*- 
 ?n^7dVn r ana more county. (Seel Hurr. S,- Johns. 14.) The defendant 
 UnTu^"' 1 ' 01 '*" took defence for Cullen's Lot, and C'ullen's Addition, on 
 f.,)\lTr? f ,,f*i t'a.t the plots made and returned. Judgment was entered 
 bna fOTfaajferrj against the casual ejector for all the lands undefended. 
 
 lycrtm] ou the 
 
 ?'n7i i "b? l "r". l un ^' The plaintiff at the new trial at May term 1 805, pro- 
 h!^r r *tr.c f t th i,duced in evidence a certificate of survey of a tract of land cal- 
 
 'vVt'hi: led HWs Forest, made for Jficlinnl Hill on the 4ih of Octo- 
 
 111 ber 1685-4, in pursuance of a warrant granted him for HMJO 
 
 on* /. lh.- T^n-' acres, on the Slst of July 1683, "lying in Baltimore coun- 
 
 i ' trv-Vn'r ty, in the woods above the head of a river called (ivnpnw- 
 {drnirntofwhicu der river, and upon the S side of the N branch of the said 
 iri dVchm-d d,- r ivcr. beginning at a bounded red oak standing at the end 
 mittrd to ri- "* <,f the N line of a parcel of land formerly taken up fur 
 
 dmrr on <b- part 
 
 of thr ***y*Jtmu Thompson (a], and running from thence W parallel 
 
 in an action of e> 
 
 iv^'Ihe'wrn^''" "n.i ^^ *' ie sa|f ^ ' aiu ^ ^ or *' ie l cn ^" ' ^20 perches, then run- 
 inr* '*11drr e1 "h ning f rom tne en< ^ of the W line N 310 perches, then run- 
 df tfa ( s^rftor of ning from the end of the N line, E 520 perches, until it 
 ^"'iiVuVar' c"mn"y* intersects the land called Clark-wiSs Hope, then running 
 
 nn-l having a tcm- 
 
 in another oniiity, in iwilhrr ofh'h connti*^ dort thr land li-. nckiiowlntpMlhp il.rd in thr conn* 
 tv iii which hit tVnin-iraiy rr-li tin it, tueh d. vd i> not xc.'xl .m>l valid in law tu patt and irant- 
 Str 1)1* pi~anior'i intrmt in tin- l>-nd 
 
 A temporary ri tidt nrr '" anv f """'y "' ''" '""'' ' not "fli<-i' nt in ciiablr a grant rr. bfinp a ri- 
 ti/<-ti of'thr tt'atr. to artiiowlnlge a Jtrd, during nuh Umpotary rtiidcnrr, fur bud i)nu- in any 
 uilii-r oMiniy ->f thf ttatf. 
 
 1'hr w>r>(t "Irfn'hi atit/iorited and atiignrd," in a cprtificntr of tlie clrrk nf a roiintT court to a 
 rlrrd urtrv l julic ol ihv rracc of thni county, i. i lii irii.il r. ; 
 
 thr I'in-ciimit. and wiihin th- mennirr ot tin- 31-1 ct" Xm-rnttrr l.(>fi, cf>. 14, and arc words ot the 
 tamr impnrt a% "itiily rommittivnnt arif nrorn '' 
 
 M'b-ri- th< ili I- nlani in an action nf >-ji it,,, cut, WIM in r,oinjon of lOOacro of land, hyrnflniiirrt 
 and ettltlTtiun, fur 13 yran, and il.rn rn!arr>-d hi< rnrlon.iTt MI lo nirli i( |. ] (> cms and he 
 |iuiln j ihr ni<-. vi > ntai f <l. ! ncliiti TI t<ir ix >run ihcrmtlt r, churning tin- .aim at )IIUMU 
 Brill, that lir h.' titli- lo ihr I"-.) acrrt h> niKiTMii) |)<.^^. wion. 
 
 Whrrc tbr ' . d in a (rrant of land d'-cribr it at "IT'"? on ibr no*drr 
 
 rivrr, liccmnii'ir at a boi 
 
 and riiniiiiHt i *<X> pt . to a li"iii.d< d oak ttnndirif b'j thr Cm- 
 
 Mid ink." fee ll'dl. thnt :\.< > tl ix.t \ . i..it t.. l.ind ih> fir\< |MI>- lo Urn limit al ll.r Cin-at Kallt, 
 ttb'irrh H" t tin- trr or plart- wh-n-i- 
 
 'I hr drrlaiaii.'in |irinn. th'n t izrd of a p-.rtiru nr tract of land not loeaU-d on the 
 
 ploti in ihr rnu . ' rvidrntc 1 
 
 rinl i, I tin Qrtt Inir of thnt tract. J.ith av thr brKiiuiiiiK i>1 tin .and rlnini'd and i.cai. .: 
 plott hy thr dfrffiulant. HriiL that thi- dtclaraliopt v>. i- i.oi ilnn Mli'r in mdrncr. 
 
 In an action of j.-r'n,i nt for JO serrt it arab.f land, 10 atnt nt n ndow, and 100 r cm , : 
 fetid, part of a tract of land alld // F, Ihritii), h\ tl,<ir " ili<- tn;r 'n. <iion uf il.it 
 
 trart. and al>o the loralif in 1 rtln r trarti of land fur whirb tin- (' nHnnt n.-.k ill ( 
 found for tar plaintiff h thr land is'itd HI. at liHui.d by -him, vhnh IK i rl.-m of : 
 (ram, to located by tbt-rn, and t'diili itward of diviiion |mv l.u>,.,, 
 
 Irtaor and J S , fiom a {Mrtirular IH.IHI in anoilirr it mi. ih.it tin i ! .ludt'it i.' <l>< r<-un 
 
 ' , vrre not uncertain, and -rrr not hit mere laiul tliitit.lhe piumliffi.Iaiu.tu iu hit activn. 
 
 CtUcd "Tfarrpscn's Cboitt"
 
 OF MARYLAND. 
 
 with (he said land, and a parcel of land called Gassaway's 1809. 
 Ridge, by a straight lino to the first bounded tree, contain- 
 ing and laid out for 1CCO acres of land more or less." Also a 
 patent granted to Richard Hill., on the 10th of August 1684, 
 for that land. Also the ivill 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 lo 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 
 /////"* Forest, 1000 acres, was in possession of Joseph //i//, 
 and statin" 1 therein an alienation of the land from Henry 
 Hill to Joseph Hill, on the 27th of July 1737. Also a co- 
 py of a deed from Henry Hill, son of the patentee, to Jo- 
 seph Hill, dated the 27th of July 1737, and the record 
 book, with the deed therein recorded, in the following 
 words: (See it set forth in I Harr. <$ Johns. 16.) 
 Also the will of Joseph Hill, datpd the 20th of October 
 1761, whereby he devised to his granddaughter, Henry 
 Margaret Hill, all the remainder ot his tract of land call- 
 ed HiWs Forest, not devised to Nathaniel and Joseph 
 Richardson. He devised to Joseph Richardson 200 acres, 
 to be laid off at the easternmost epd of Hill's Forest, and to 
 Nathaniel Richardson 200 acres, to be laid off at the wes- 
 termost. end ot IlilPs Forest, and the residue, 600 acres in 
 the middle, he devised to his granddaughter Henry Mar- 
 garet Hill, ('now Ogle,) in fee. Also a deed from Joseph 
 Richardson to Charles Wells, dated the 27th of March 
 J779, for 200 acres of land, part of the land called IIHPs 
 Forest. Also a deed from Charles Wtlla to George Bu- 
 thanan, 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 Janws Bosley, dated the 
 25th of June 1777, for part of the tract called Hill's Forest, 
 supposed to contain 430 acres. Also a deed from James 
 Bosky to George Buchanan, dated the 16th of June 1784, 
 for. the last inentitued p,ut of HlWs Fvreft* A'so a
 
 CASES IN TUKCOritT ov APPEALS 
 
 U' fn.in (it >r?t. ftttchimtm to Janits VUl'uiga, the lessor of 
 
 the plaintiff, dated the C8th of December 17t:'.i, fur thu 
 la*t mentioned part of 7it//*. Forest. Also the proprietary 
 '<>/..v tVom 17.'-)" 4 to 17(>, slum in;; that Joseph HUL 
 \va> charged with UK'O nctes of //LTs J-\>rr*li also the 
 ltsbt books from 1762 to 1771, shewing that Joseph I/iir* 
 were charged with the *aid land; ami also the debt 
 books in 1771. showing that Jo.icph Jiichtirdson was charg- 
 ed with 00 an* 1 -. .\nlhunid Richardson with 200 at re-, 
 Mid Henry M. Hill with GOO acres of /////"* Forutl, The 
 defendant objected to the reading of the deed before men- 
 tiiiH'd, from Ucury Hill to.Jonej>h Hill* dated the 27th of 
 July 1737. 
 
 Martin, (Attorney General,} for the Plaintiff, cited Bulk 
 N. P. 54. Shjlf, 03, 445. 2 Btic. M. 308. Kendall's 
 S J.ev. 387, 888. Medlicoll rs. .'>y/jer, 1 Mod. 4. 
 Martin vs Monke, 5 Moil. 11. Hr Edward S 
 ca>e, 10 Mud. 8 Combs vs. fiowell, 2 Vtrn. 591. 
 
 r*. Davis, 6 3forf. 225. Tuyfor vs. Jones^ 1 //(/. 
 746. Jl'owlward r*. Jtston, 1 r"e/. 296, 297. 
 B. Melhui*h t Jmbl. 247, 248 GV/6. /,. . 97, 
 98, 101. Lofffs Gilb. 102. 2 flac. .^i. tit. Evitlem-r, 
 (Y) 646. 3 Com. /)i^. tit. Evidence, (B. 2;) and Smarllt 
 vs. H'iUiama, 1 AWA:. 280, 281. 
 
 ( H\SK, Ch. J. The court were of opinion, in the former 
 trial between these parties, that a copy of a deed which 
 reeds no enrolment is not evidence. But the present ques- 
 tion is, whether the iiif>pf rimtu of the enrolment of a deed, 
 which requires no enrolment, is good evidence, it being 
 accompanied wiih other circumstances, such as antiquity 
 ajid 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, 
 /he insj)fxhnn8 nf the deed, though it does not require re- 
 cording, may be read in evidence, and the deed is good ami 
 effectual to pass the land. But if the jury do net find 
 that possession has gone with the deed, then the iwtpeximus 
 }^ r.i.t evidence, and the jury are to disregard the deed. 
 
 The court consider the distinction iwdl established. 
 
 2. The defendant objected to the reading in evidence 
 the deed, herein before mentioned, from Josrph HichanLiOti 
 t .. ffnirlta It ells, dated the 27th of March 1779, for 200 
 f land, part of Hiir* Forest, as that deed was not 
 located on tl.e plut* returned iu the cause.
 
 OF MARYLAND. 383 
 
 Martin, (Attorney- General,) for the Plaintiff, referred to 1809 
 Hull's Lessee vn. Cough, \ Harr. $ Johns* 119. 
 
 CHASE, Ch. J. If the title to the 200 acres, and tlie 000 
 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 lias not been particularly located on 
 the plots. 
 
 5. The first bill of exceptions. The deed from firnjamin 
 Ogle, and wife, to James Bosky, having been adjudged 
 defective by the court of appeals, and the judgment in the 
 former trial between tlve parties reversed, because of the 
 opinion of this court as contained in the second bill of ex- 
 ceptions, and the court of appeals having expressed an 
 opinion that the plaintiff might give evidence that Mr. 
 Ogle resided in Prin ce- George's county at the time he ex- 
 ecuted the deed, it 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 
 Jfmcs Bosky, dated the 25th of June 1777, stated to bs 
 "between Benjamin Ogle, esquire, and Henry Mariparef, 
 his wife, of Aiim-Arundd county, in the state of Maryland, 
 of the one part, and James Bostey, son of Charles, of />a'- 
 limore 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 //#/'* Forest, lying in Baltimore county, con- 
 taining by estimation four hundred and thirty-one acre, 
 with all," &c. This deed was executed by Ogle, and wife, 
 and acknowledged as follows: "He it remembered, that the 
 within named Benjamin Ogle, esquire, and Henry Mar- 
 guret, his wife, came before us the subscribers, justice's of 
 the peace for Prince- George' 's county, of the state of Ma- 
 rt} I and, and acknowledged the within deed to be their act, 
 nd the lands and premises,, with their appurtenances, 
 thereby bargained and sold, to be the estate of the wit'liin 
 named James Bosky, son of Charles, his heirs atid as- 
 signs, for ever: And the said Ifehry Margaret, wife to the 
 said Benjamin Ogle, esquire, being by us examined pri-
 
 384 <-' A - : * IN THE COU RT OF A r PEA' 
 
 !' ly out i)f the hearing of hrr husband, declared that she 
 
 L ^" v ~ x ^ made (he above acknowledgment -willingly and freely, ;.:ul 
 
 without being induced thereto bv force ;r threats of ill- 
 
 On i.*ngt 
 
 u-a.^e bv her husband, or fear of his displeasure. 
 
 Taken and cei tilled, Thos. 
 
 Tims. 
 
 At the foot of the acknowledgment w;t* the following 
 certificate, giv^n by the clerk of Prince-George's county 
 court: "Prince- George's county, to wit: In testimony 
 that 'fliomaa Williams and Thomnx Boyd, gentlemen, be- 
 fore whom the above acknowledgment was made, and who 
 have thereto affixed thch- signatures, were at the time of 
 taking and affixing the same, and still are, two of the jus- 
 tices of the peace for the county afoiesaid, legally uutho- 
 risetl mul tssizned, and to all certificates by them so sign- 
 ed, due fiitli and credit is and ought to be given as well 
 in justice courts, as thereout, I have hereunto set my 
 hand, and aflixed the public seal of of- 
 (Seal.) fire, this 1-Uh day of July, Anno Domini 
 
 1777. 
 
 John Read Magrudcr, 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 oRl-ml 
 evidence to the jury, by the testimony of Itcnjamin Ogle, 
 esquire, one of the grantors named in the deed, who depos- 
 ed that in 1T7-J he became seized and possessed of an es- 
 tate in Prince-George's county, called Belle .tfj'r, upon 
 vhich estate there then was. and still i*, a large and coin 
 modious furnished huu>c; that he considered the city of 
 Jlntutpoli*. 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 J.">i- -.Irundel he voti-d, v;i- 
 summoned to serve aa a jury man. and ua> permitted to en- 
 jov the ri^ht of pasMii^ tlie various ferries in the said coun- 
 ty without pa\in^ fei-riairc. none of which privilet-s or 
 immunities were ever enjoyed by him in the county ..t 
 Prince ffcorge'a. That from the time he became possessed 
 of the estate call .//r. until the year 1790, it w;n 
 
 customary for him occasionally, every year, to go with Ms 
 family to that e-tatr. and live there fora lime, sometiii"^ 
 1"t a l<.i!j;er and sometime for a shorter period of time. That 
 on the 25th of June 1777, he was with hi* wifo at
 
 OF MARYLAND. 385 
 
 called Belle-Air, in Prince- George's county, (their chil- 1809 
 dren bein^ at West- /liver,} and there, together with his 
 wife, executed ami acknowledged the deed from himself 
 and wife to Janice Bosleij. Tli.it lie was himself in the ci- 
 ty 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 defen- 
 dant, produced and read in evidence the deposition of John 
 7/iomas (a), in the following words: "That he hath, - 
 from an early peiiod of his life, been acquainted with 
 Benjamin Ogle, esquire, and with his lady; that Mr. 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 con- 
 tinues to luml, 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 Tusker^ 
 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 fa- 
 mily remained at Annapolis the first part of the year 1777, 
 lie 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 dwel- 
 ling-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 ofterier with them, but of that he has no distinct re- 
 collection. That in August and September Mr. and Mrs. 
 Ogle were at Belle Air; that in the fall of 1777 his kitch- 
 en, 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 re- 
 sidence of Mr. Ogle, and that he never did reside iu 
 
 (~aj Mr. Thomas resided at West River, and was un&le to Mr*; 
 Ogle. 
 
 vox n 40
 
 396 CASES IN TIIK COl'KT OF APPF.ALS 
 
 180D Prince-George's county: his rcii'i'vj; tlicrc in the .-m.imer 
 "-v-*.' se.iM-n, he conceived as a vi-it iVoin Innne, anil nut as go- 
 in.; ii constitute a new residence."' The pl.Vmtilf aU" 
 fcred in evidence, by the testimony of Mrs. Mart/ Ifitlonf, 
 sister to Itcnjcrnin O^h\ that her brother, upon his marri- 
 age, which took place in September 1770, >>ettled in .In 
 nupo'tis, anil lias resided there e\er since. 1'luit when he 
 got possession of his estate called BtHc .4'tr, there v 
 upon it a large and commodious furnished dweUin4MUSej 
 that it was usual for him to go occasionally c\ery year 
 uith his family and spend sometime at his *rat; that .-he 
 cannot now recollect when her brother first bejjan to reside 
 occasionally at his said country seat, nor can she recollect 
 the time or season of the year when he usually went to it, 
 but she remembers that she herself spent the summer of 
 1777 at Hath, in I'li-yin'm. ami upon her return home from 
 Bath, in the month of S<'|>ti'inl>er 1777. she called at the 
 scat of her brother in Prince- George's countv, called RcUe 
 --, and spent some days there; at that time her brother 
 and his family were residing there. Ueinjj asked by the 
 counsel for the defendant, whether she considered ;; 
 Air or .Annapolis the place of residence of her brother? she 
 answered, both; that in her estimation, \\hen 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 (a), who deposed, (hat 
 About the middle of May 1777, her maud -mother died; 
 that about this period, or some short time, before, MIC vent 
 her children to ll'tst Jiiicr, in Jnne-.'lriiinJd county, to 
 the house of her uncle Mr. Jnfin Thomas, to keep them 
 from taking the small pox, which then prevailed in Jlnmt- 
 polix, that the children continued at JIVs/ lih-ir for two 
 or three months; that Mr. Ogfe and herself, and at times 
 
 fa} Tlie counsel fortlic plaintiff 1 objected to Mrs. Qgle'x l>cing 
 .mined, conteiuling 1 tli.-it s|i<- w.n cull, <1 to d -fmt IHT own <\?t d. 
 
 Thecaseof ll'il-.t-i ,. 7 './',..', i 'lirr.^ M'H.n..', \s Ss . 
 
 the (Icfcndftiit's counvl to slio*, tlut :i \vitV was c-xntninul to | 
 
 lh:t licr hust):ind li;nl di-siroy d the will of his fattier, u 
 
 luiJ devised the land in <{n< ,t;on to his v^i-.t 
 
 CHASE, Ch. J. The Court an- of opinion, tW Mrs. Ogfr i 
 pal and competent witness. The acknowledgment of t!i 
 
 v-, :in-l thr d.'-d does not operate to con - 
 >rc than Mr. Obit's life- estate, and tUc verdict ui tlii c*c 
 vrould not be evidence lor her or her heirs.
 
 OF MARYLAND. 
 
 herself only, went to see them at JVest River, and in 1809. 
 going to ll'eat River from Annapolis, and from West ^ \ - J 
 River to Annannlis, she and Mr. Ogle occasionally 
 
 "* Gitiingj 
 
 called at Belle-Air, their scat in Prince-George** coun- 
 ty, 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 Boxley, of the 23th 
 of June 1777, was executed at Kcflc-Air, on one of those 
 occasional visits when she and Mr. Ogle were passing from 
 Annapolis to West River, or from West River to Annapo- 
 lis. That it was executed just before they left Belle Air.^ 
 which she well remembers, because, seeing persons com- 
 ing to the house, she was afraid she should be detained at 
 Jiellc 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 coun- 
 ty. That Annapolis, in Anne-Arundel county, she always 
 considered their plac of residence. That at different 
 times of the year, and of different years, they occasionally 
 spent part of their time wi;h their family at Belle Air t 
 and in sotoe years they went to Belie 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 Beiramin 
 Ogle> that he went in the year 1777 to Berkley county, 
 in Virginia', that he went there after the 23th of 
 June 1777, and returned before the 10th of July 1777, 
 and that in 1777 he did not take up his temporary resi- 
 dence 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 in MV. John 7'/winas's at West River, is 
 14 miles, to Belle Air is i8 miles, and from Belle Air ta 
 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, iu the
 
 388 C A S K S 1 N Till: COURT OF A P ; 
 
 1809. countv of .tfwjr-.'/rr/w/t 1 .', the country house situate in flic 
 county cf J'rhict'-dror^'' . . (hat il mint;: the time hi* 
 re-idcnce v av piiiicipiiilv in . t).ii>. .!!*, t!,i>' iti each of the 
 years aforrsaid he ct ( a-iun;;!!;. \\cnt \\ith his f;.mily to his 
 country house in /'rmrr-6'o /-p-i's, nnil resided thru- for a 
 time, sometimes for a lon^n- ;>"'l Hum-tin. rs lor a shorter 
 jM-iiod in each of the yeais aforoaiil, and that It- with hi 
 wife vcre, on tlie 5th of June 1777, at l.-iv country house 
 in Prince Crural'* count y, and then and tl.t n>, uifh his 
 wife. executed the deed of that date to YV.sYn;, that then 
 the deed, so executed, was and is u<>rd and -i:fli( ici.t in 
 law to puss and transfer, from Ogle to . l! the inte- 
 
 rest which Og'c then liad in and to th> lands mentioned 
 in, and intended to be conveyed by, the tit 
 
 JMartin, (Attorney Gmeral,) and fl/ason, for tlio j.lnin- 
 tiff, stated, that the* question was, whetlu r Mr. ( L.II l,ad,in 
 tlie testimony in the cause, such a living or residence in 
 Prime -George* county as to justify his acknowledging in 
 that county the deed from him and \\il<> to /!>j.*in/: n. 
 vhether a deed acknowledged in Prince- Grorgc's county, 
 before two justices of the peace of that count)', for Iain's 
 lying in Baltimore county, by persons \\hoare staU-d in 
 the deed to be of Anne-Jlrvndd county, was a good ar.d 
 sufficient deed in law to pass and transfer the estate to the 
 grantee? To show that Mr. Ogle had a sufficient n'sidencc 
 in Prince- George* s county, to enable liim to execute the 
 deed in that county, they referred to tlie acts of 1715, c/ 
 47, s. 8, 9, and November 17<iO, c/i. 14. .v. 2, 3. .' 
 Lee's Lessee vs DniLIim. 2 Jhnr. y M*Hcn 46. ,/oltns. 
 Did. tit. Ilmiile. Foster's Cr. L. 7f-; and 4 Cuke, 40. 
 
 Pinknnji An;, Johnson $ Jfarjxr. for the defendant, 
 tated, that the question submitted to the court was U'hat 
 constituted a. residence within the meaning of the act of 
 November 1766, ch. 14, *. 2, 3? They contended. 1. That 
 at the time the deed from <>gte and wife to Jioshy v, .is 
 executed, the grantors did not reside in the count v .f 
 Prince- George's, and. therefore, thai derd did not trans- 
 fer the estate thereby intended to be coinncd. to the gran. 
 tee. They referred to the acts of 1715, ch. 47, s. 8, 9; 
 November 1766, eh. 14, . 2, 3, July 1729, cfi. 8 s. 5; 
 1793, ch. 53. a. 7, 22; and 1796, ch 43, s. 14. ( 
 -Art. %, 16, 42. The act of 17VJ, ch 50, *. 11, 12. Jofmt
 
 OF MARYLAND. 380 
 
 Hid. tit. Reside Residence Resident, and the several 
 examples. Buyer's Did. tit. Reside r. Cunn. JJict.iit. Re- 
 sidence. Jacob's L. I), tit. Rexiance Rexianf. 
 
 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 
 1760, ch. 14, s. 5, he having used the words ''legally au- 
 thorised aad assigned," instead of the words of the act 
 "t/w/y commissioned and sworn." That intendment could 
 not be admitted to supply the omission of the words used 
 in the lawj and that if intendment could be admitted, there 
 was not sufficient matter stated iu the certificate to show 
 that the justices hud been sworn. They referred to the se- 
 veral decisions made by this court as to the acknowledg- 
 ments of deeds by femes covert grantors, also the acts of 
 February 1777, c/i. 5, 4' '796, ch. 45, s. 17', and Dyson vs. 
 West, 1 llarr. ty Johns. 567. 
 
 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 Lt.isee v Ridgely, Harr. 
 % Mullen. 418; and &tm 4* Let's Lessee vs. Deakins, 
 Ibid 46. 
 
 CHASE. Ch. J. The court are of opinion, that this case 
 5s not distinguishable from the case of Sim *> Lee's lessee vs 
 JDealtins, and that the principles of that case must govern. 
 Jn that case Warder, by coming into Maryland, acquired 
 a temporary residence sufficient, under the act of its.si-m- 
 bly, for the purpose of executing and acknowledging the 
 deed. That while in Maryland he oy/ed temporary alle- 
 giance, and during his residence was subject to the iaws. 
 
 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 terra 
 residence is a general term merely to express the abutle of 
 the person. 
 
 The court are of opinion, that if the jury should find 
 that Benjamin Ogle^s principal residence was in Jinnopo- 
 lis, in Annc-Aruiidd county; that he voted, served on ju- 
 ries, 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 lielle Air, 
 m Frince- George's cuuntj, during the summer and au-
 
 SCO CASF>* IN TIIK OiUtT OF AIMT. ' 
 
 , of the said years, sometimes fur ;i longer ami 
 
 ; and vhould also find that he \va 
 
 vi'li hi* wit* 1 ai hi> i <nuitv on 
 
 'th nl June 17", the lime of (hi- execution of tlie 
 deod to Ht'*lfi/i although they Miould find that hv, \\iih his 
 vile, mi the .--aid ia^t mentioned i!:iy, stopped ;\\J>>/ ; ' 
 
 bi& temporary i.aint\, for a 
 
 short time inily, on their way to or from II (at /'<<< ;, in 
 
 (iitintv, aiiil (Itirit;^ s"th Cdiitiiiin; 
 
 ltd and aikt.ov. ii il.r.l the deed to /tos/r/; and that ^/?, 
 virh his \vife, iiiunediatcly al'ler th? cxetuti:ii and ac kno\\ - 
 ..-tit i fthe deed, left /.'// ./';/, .irid did not -o thihe- 
 v. j'li hi> f.uiiilv toitiitain jluiin^a \>m\ oft 1 : and 
 
 autumn, aicoidin^ t< hi.- ?aid ttistuin, until -everal 
 after the time of executing the deed; that then the deed is 
 pmd and valid in lau to |..i^s and tiaiotcr all the iuteieat 
 of Off.'c in the land to lhs!> 
 
 '\ lie court du not say, that a person ^ninu from (.ne conn- 
 <y to another can acknowledge a deed for lami- 
 a diflerent county; but that a temporary residence, ami not 
 a nitre transitory residence, is sufficient for that pun 
 
 The clei k of the countj court is a person intrusted to make 
 *lie certificate, that the persons, before whom the acktiiju- 
 h'd^ment of t!ie deed was made, were justices of the | "ace 
 of the county. He had a knowledge of the facts u here- 
 upon to ground his certificate, which is to authorise tl 
 carding the deed. The court think a substantial compli- 
 ance with the directions of the act i>- all that is requisite; 
 and the court consider the words used in the c^riiih ate are 
 vuids of that import. The words li gaily uulhvri&cd, are 
 of the same import as "duly co?;,////i.W<<,,/ and M- 
 The coiiit collider (hat tle justices could not be l 
 tiulfiuriacd unless t'uey had been coniini.tfioncd undsu-orn. 
 '1 'lie court aie of opinion, that the certificate o( the clerk 
 Q( Prince-George*! county court, endorsed ou the deed 
 from licujamin Oglt and u.ift- to Jumes Motley, L- 
 and suHicient in law to warrant the enrolling the deed by 
 the clerk ( ! Hn/limore county court among die lutid re- 
 cord?. ,f that county. The defendant excepted. 
 
 4. 7 / bill of exceptions. The defendant, to 
 
 make title to the lands within the lines from firmer., &.c. 
 plots in tlie cause, offered evidence to prove the 
 plot* and explanations; and gave in evideu.ce the ctrtifi-
 
 OF MARYLAND. 
 
 cafes and pafenf* (<t) of the tracts oflan<l called Culkn's 1SOO 
 Lot and CuUoi't Addition; the certificate of the former 
 tract dated the 17th of June 1683, and oftlie latter tract 
 luted the 25th of September 1GS3; and also gave in evi- 
 dence the certificate and patent of Hill's Forest before 
 mentioned. And also gave in evidence, that Ihe whole of 
 the land contained within the lines on the plots from GO, 
 shaded blue, to red 7, to red 8, to red 9, to 61, and witli 
 the fence shaded yellow to 60, was in the actual posses- 
 sion, 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 G! , to 60, to X, was continued for seven 
 years as the fence and the inclosure of the defendant, claim- 
 hi<;- the same as his own before the bringing this e- 
 jectment. In this case the testimony was, that the fence 
 Irom GO to 52, to 53, and so on to 60, was made by lite 
 defendant, and those under whom he claims, before 
 the year 1774, and continued to run thus until the 
 year 1733, when the fence was altered, and nin from 
 60 to red 7, 8, 9, black 61 to GO; that this last fence 
 from red 7, 8, 9 to 61, was in the year 173-2 put up by 
 those under whom the plaintiff claims, and those under 
 >vhoiu the defendant claims, jointly; that in the latter part 
 of the year 1782, or beginning of the year 1733, the plain- 
 tiff, 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 GO 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 opini.m 
 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 iand includ- 
 ed within the lines from GO 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 bi-f:re 
 the expiration of the twenty yours the fence a;ul enclosure 
 
 faj Neitlier f the tracts were patented.
 
 302 < ^SES IN THE ClH.'RT OF APPEALS 
 
 IP. ,o\i-d fro. n red ~ to X, to GO, and thereby eft- 
 
 :'.(! the enclosure. 
 
 CHVSK, Ch. J. 'Die Court refine tn give the direction 
 prayed, Ix-in^ of opinion that if the jury should find that 
 the plaintifl's lessor, under the direction of (he court al- 
 ii. hath made title toalf the tract of land railed. 
 I Jill's Forest, except the GOO ar: ! to Nathaniel 
 
 JtiiJi (tr, If.on ; and shouidf also find that the land, to which 
 the defendant claims tide by adver-iry [Hisses-ion, in man- 
 nrr herein slated, is included within the true location of 
 J'iir.i Forest, that in such case the defendant has no title 
 to the land by adver.-ui v po^r^ion. h:r. ir.^ abandoned it 
 by removing his enclosures. The defendant excepted. 
 
 5. The third biff of exbcptioiu. The plainiifftomakMitle 
 <o the land claimed by him in this action, read in evidence 
 to the jury the certificate ami patent of //*//'* J'oresf. and 
 showed a title to the land in the le-sor of the plaintiff, un- 
 der the grantee <f ihe land; and to prove that the said tract 
 is truly located on the plots by him as his claim and pre- 
 tensions, cave in evidence the plots, ami the certificate of 
 a tract of land called Thompson's Choice, surveyed for 
 James Tlunnpson on the 12th of March IG"'.), in virtue uf 
 a warrant for 550 acres, granted him the 14lh of January 
 lGr9, and :i!t> a wan an* -ranted him the 24th of January 
 l-r ( J. for 250 ncres, whereby "was laid out for the ^;iid 
 Thompson a tract of land called Thompson''.* f'nn'rr, lyin^ 
 in Jii:l!i,,iore ct.unty. on the R'ul-e of (innjnt't-drr \ 
 
 .nini: at a bounded oak, being the \vestcrrnost bound s 
 ul'a tract of land late laid out for Major Seu'e'l (o), anil 
 running W 500 perches to a bounded oak slundin^ In/ the 
 great ft tils * and running N from the SMS-! oak 320 perches 
 then K 50!) per'-h."-, i!;--;i with a straight line to the first 
 hounded tire, containing and laid out f.ir ! 
 uf land more or Ics-." And ;il-o ga^e evidoiKe to 
 it the land called Tliomnfni"n Choice is tru- 
 i by him on tlie plots. Il- aUo (.f{'.>i,-l .-vi- 
 e to prove the true location of 770.v .' f twice to be 
 fr-nri ihi- li-tti-r (^ i>n 'h- |.!n--. .md from ihencr to ?{, to S, 
 
 'o Q. The deTeodanl UM& offered evideno 
 
 "te true loca'i'in i.f t!i; said land v\a-< from I. f'icnce 
 to 10, to n. io '..:. to I. There was ug evidence 
 Coj Called Xcu-rf't fancy.
 
 OF MARYLAND. 393 
 
 that Thompson's Choice was ever run, held or claimed, by 1809 
 any person interested in the said land, as running from its 
 beginning to Gu/ipoivder river, except so far as relates to 
 the field at the figures 10 on the plots, which field wsta 
 laid down and proved by the plaintiff as an ancient pos- 
 session under the title of "Thompson's Choice. 'Die de- 
 fendant then prayed the opinion of the court,. and their di- 
 rection to the jury, that inasmuch as no evidence has been 
 given of the bounded tree called for by the certificate of 
 TJiompaon'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 
 fun so as to terminate at the great falls of Gunpowder ri- 
 ver, from whence the remaining courses of the land must be 
 run according to the courses and distances expressed in 
 the certificate thereof. 
 
 CHASE, Ch. 3. 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 t 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 the declarations 
 6f Col. Young, deceased, then seized of SeweWs Fancy, 
 to prove the end of the first line of that tract, which is 
 the beginning of Thompson's Choice located by the defen- 
 dant. 
 
 CHA.SE, Ch. J. The court reject the declarations of- 
 fered in evidence, Sewell's fancy not being located on the 
 plots; and although the second line of that tract runs cflf 
 from Thompson's Choice, yet non conslat that Young was 
 not attempting to carry back the first boundary or begin- 
 ning of SeweWs 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 
 tJ, thence to V, thence to \V, 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 
 j, thence home to A. That Cullerfs Addition begins at 
 C, standing on the manor line, then, runs to D, to G, to 
 VOL. n. 50
 
 394 
 
 CASES IX THE COURT OF APPEALS 
 
 II, thence home to C; anil lastly, they find for the plaintiff 
 
 all the lands called //'//' > / ;.bo\r !i.< ated, which 
 
 '' lii'< clear of the lands called ('uHcii's Lot, and C'nlltn't 
 
 /i/ion, as above located, and which lies 10 the eastward 
 of the said division line between the plaintiff"* lrsi,r and 
 Joseph Sice, from red II to red A cor.tinued. until it in- 
 tersects the out line of Hill's /'errs/ ;is;ibi,\e located.*' 
 Judgmrnt. That the plaintiff recover ;IU.,:M>I the, defen- 
 dant "his term yet to come and unexpircd if. in and unto, 
 all that part of the tract of land called /////'* Fr<*L 
 tuate in Hallimore county aforesaid, located upon the plot* 
 returned in this cause, beginnin;; at the letter T, and run- 
 ning to U, thence to V, thenre to W, and thence home to 
 T, which lies clear of the land culled Cut'cn's fat, also lo- 
 cated upon the said plots, beginning at A and running te 
 B, thence with the manor line to C, thence to I, and thence 
 liome to A, and which lies also clear of the land called 
 Cullen's Addition^ also located on the said ploU, l>. Binning 
 at C, standing on the manor line, then running to I), then 
 toG, then to H, and thence home to C, and also which lie* 
 to the eastward of the division line between James (lit- 
 lings, 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 Hiirs Fore,st as above located, so as afore- 
 said by the jurors aforesaid found," &c. On this judg- 
 ment the defendant brought a writ of error returnable to 
 this court 
 
 The cause was argued at the last term, before BCCHA- 
 KAX, NICHOLSON, and GANTT, J. 
 
 Key, Harper, and Johnson (Attorney-General,) for the 
 Plaintiff in error, in arguing the points which 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 etceptions was, that if a man has a 
 parcel of land under inclosurc for 15 years, and then en- 
 lar^i's the parcel, and holds the whole by inclosure for 
 seven yearn, he did not acquire a title in the first par- 
 cel by 20 years possession by inclosure. In opposition to
 
 OF MARYLAND, 899 
 
 which they cited Russell's, Lessee vs. Baker, 1 Harr. fy 1809. 
 John?. Ti. 
 
 On the third bill of exceptions they cited Howard vs. 
 Moale, el al. Lessee, (ante, 269, 270.) 
 
 They objected to the verdict and judgment on two 
 grounds I. 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 Buc. Ab. tit. Damages, (D. 2.) Ibid tit. Error, (K. 6.) 
 Crumpton vs. Sn^itlt. Yelv. 5. 1 Bulst. 49. Clements vs. 
 Waller, 4 Burr 2156. Cumingvs. Sibly< 7foW2490. Par- 
 for vs. Harris, 1 Salic. I62j and Philips vs. Bury, 1 /,</. 
 Hayni. 6. 
 
 Martin and 7 1 . Buchanan, for the Defendant 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 Buc. M. tit. Verdict, (M.) Co. Litt. 227. a. Trials 
 Per Pais. 298, 304. Carter's Rep. 80, 94. Vin.Ab. tit. 
 Trial, 407, pi. 29. 2 #o#. wft>. tit. TViw/, 707, pi. 42. 
 2 #c. Ab. tit. Ejectment, (F.) The act of 1805, c/t. 65, 
 9. 44. 1 Tldd's Pr. 662, 663. SuUivane vs. Seagrave, 
 1 &m. 695. 2 #ac. Ab. tit. Ejectment, (D. 2.) 419, 420. 
 Cot ting ham vs. King, 1 Burr. 6-29. Conner vs. West, 5 
 JBurr. 2673; and Howard vs. Mode, et al. Lessee, (ante 249.) 
 
 THE COURT, at this term, dissented from the opinions 
 of the General Court in the first and second bills of ex- 
 ceptions, and concurred with that in the third bill of ex- 
 ceptions. But the court were of opinion, that the certifi- 
 cate of the clerk of Prince- George's county court gave am 
 authority to the clerk of Baltimore county court to record 
 the deed from Ogle and wife to Bosley, mentioned in the 
 first bill of exceptions, the court considering the words 
 "legally authorised and assigned?' within the meaning of 
 the act of November 1766, ch. 14. 
 
 JVDOIEXT REVERSE*.
 
 CASE? IN THE COURT OF APPEALS 
 
 vs. TAM.OR. 
 
 ERROR to the General Court. The defendant in error 
 brought an action of assiitiijisit, upon a foreign bill oj <..- 
 T ';'" r i . .lra\vn on the vJ.'nl (,f July 1799, by C'. /: C. 
 
 rit) nluuh, .'met- Bcsckl'. (it Jjtlltil)l<)> '< . (ill./. . /. -V /'/. //. ltt.<i.<f, of /XM- 
 
 \u'rT' pt-rion </o, in fatourof ////. />. Jl<tnnl(r, lor i;l. ;<) sterling 
 
 > Inl 111 ! . elm- 
 
 i.cur oi a IM.IU. money, and in vaule 00 d;i v . Blur sii-ht. Ihebill was 
 
 oflhe IHVH-. H|- ' ' J 
 
 in . ii i n t endorsed bv Masruder to tin- defendant, (now plaintiff in 
 
 to !>.. l>, 111.1 It, > 
 
 errorj and liv him endorsed to tin- plaintiflT below. It \\as 
 
 HIT Uiat 
 
 * ^"ituch""^ l' rtllostt ' t ' ' or nonac ceptunce on the 1 4th of September 1T99| 
 ' n ih 
 
 rV ibr IM ii'e" t pur^ 9 eneril ' issue was pleaded. 
 
 r.'^lion'''"^'.'? 1- Thcfiral bill of exceptions. The plaintiff' at the 
 i77g,^!. ^I.MK-',:! trial at May term 1805, to j>rove that he had iven to the 
 Ki U a U trmpor.!'.V^ e ' L ' n ^ aut ( ' ue no'ice of the nonaci -eptatice ol the bill 
 dciu^lufficitT.t' of exchange, on \\hich tlie >uit was brought, ami of the pro- 
 ',r,,,.Vi'." test for sucli nonacceptance, ottered in exidriue a Uoposi- 
 ''w'hV'i'/IiViK.'.t lion, \\hic!u toether with the several endoi>eimMUs tliere- 
 
 < * u.oi ii- ur in- 
 
 dtirriiM-ui in tiic on. and CArtlOCIttea thereto annexed, was as lollo\\>: 
 b)umti. .,.^> fhiwrc. 3d March 18U3. During ihe a!)-fiue of 
 
 BC ri-it lit cri- 
 
 *" Taylor, bom Jiallimorc* 1 received Frttncit movm'tkt- 
 
 The minu'ot ol * 
 
 iiir (..w.-niMKiui-ter directed to him in November 1799. which lettei was 
 
 nutar) |iulil.c ni 
 
 rreL l l-'coTiri'iie{.' dated the 13th of September 1799, containing advice of 
 r"LEtS., u f ^ Ft BescU'a bills, 23d July 1799, for /x>30 and 120 
 I^tdVu,ehai sterling, en J. A. $ D. H. liurktr^ London, being pro- 
 ol"! 1,01*1 r)"!, MI"' tested for nonacceptance, of whichlduly notified James 
 -i l .i l ,"i.ro.1 t '.j' Rrydai immed iately. In the month of February 18UO, 
 .rvijnbi x 'i m inediatcly on receipt of the news that the bills 
 
 i. i*q!Ti-imy protested for nonpayment, I returned in the brig John 
 '^' o!"'!'. fifirkwood, from London, (which a;. '.ear-. lv t'xincis 
 
 p .iiiititi', mi.i itl- n . , P 
 
 t>.f bu.ni. . ** * Jsrou'ii x letter oi 21st November 1799.) I notified James 
 
 (JL..U .(.!, anil Miit 
 
 ceiwniuy tu,.|H.- Brijueii thereof bv order of /; iHi'tni Taulor. and unmedi- 
 
 *il, hrlu-rrcl, ui.il 
 
 U.I.IP.^OOJ m it..- a te!v subsequent I heard vat :-.;;.-; nuivi-i tations between 
 
 IUWU, 1O lH- |llt- 
 
 o" r th '^.mhti WI' ajn Tuijlor and James Jiryitrn on the subject. The 
 idK't m |!?!? second set woich // . Taylor wrote for to jj ,,/, a^ 
 
 ^ ,* u ^rt^" 80on as ' l wa> ! >licved the John Jirirk>r<> t 'i \-.a> lost, ar- 
 uin^r f UC rived a( Ballimort in September 1800, enclosed in Fron- 
 '?," '.'^um " "* Browne' v letter of ii3th June 1800, while W. 7>M//of 
 waa out of town, I was then his agent and in town. In.me- 
 diately on receipt of the bills, I called at Jumes I 
 uut 'I'd not find him; I called again very shortly afterv 
 itons L ftn j ,i cmani | c j paynient for the said bills of the said . 
 
 Itrydin, from wliom I could get no satisfaction. Iu con-
 
 OF MARYLAND. 397 
 
 firmation of the loss of the John lirickwood, J have ex- 1609 
 amiried the journals of the Marine Insurance office of this 
 city, and find the following entry under date of the 9th 
 Dei-ember 1800: **The Marine Insurance Office, Dr. to 
 D Stewart 4* Sons. For total loss on brig John Brick- 
 wood, insured the Ipth 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 tje fore me, by Jfilliam Osborn Payne, on 
 Thursday the 3d of March 1803, at 4 o'clock in the after- 
 Boon, at my office in the city of Baltimore. 
 
 Owen Dorsey. 
 
 To James liryden. Take notice, that I shall attend 
 at the office of Given Dorsey, Esquire, in the city of Bal- 
 limore, on the third day of March next, at the hour of 
 four o'clock post meridiem, to take the deposition of Wil- 
 li(un 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 ope 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. 
 
 If W. T. ZfKUfc 
 
 Sworn to before me the ScJ March 1803. 
 
 Owen Dorsey. 
 
 Received to be recorded, the 19tji day of May 1S04, 
 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 m 
 evidence, that IV. 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.
 
 SC8 CA?KS IN THE COURT OF APPEALS 
 
 The court an- of opinion, that the art of assembly of 
 July 1779, cA. ,!, '-sin act r.ittifili.\!tin^ u uwde to 
 
 "''f />'.' !- ri'M require an enVient re-i 
 
 <!fMce, Mich as would make a person a d.'iniul, qualify 
 him to vote or to be capable of holding an oftice; but a 
 temporary or transient residence is sufficient; arid it ap- 
 - to the court, that the requisites of the said act of 
 
 My has bvrti complied with. 
 
 Tin- witne-1 IK in.; in the county at the time the deposi- 
 tion is taken, is alone TIM i-s-.-iiy; unless it were so, no 
 : but ;i judge of the general court would be com- 
 petent to take the testimony of transitory \\itm- 
 
 The twenty days notice is not only for the purpi 
 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 resi- 
 dence to be put upon record. The defendant excepted. 
 
 2. The defendant objected to the reac'ing that part of 
 the deposition which slates that the deponent, a- rloik <>i 
 the plaintiff', received letters directed to the plaintiff stating 
 ; ittest, in consequence of which he gave notice to the 
 defendant as indorscr of the bill of exchange. 
 
 (!H\ST, Ch. J. That part of the deposition is only r- 
 ductrncnt Let it be read. 
 
 f>. The second bill of cxcrjtliona. The plaintiff, to prove 
 that the bill of exchange in the declaration mentioned \\as 
 duly protested for nonacceptance. offered in evidence a pa- 
 per purporting to be an extract under notarial seal fiom 
 the books of she notary by whom the said protest wa> -up- 
 posed to luive been made: "Extract from the protest book 
 marked f, fol. n the 2df June 179H, and ended 
 
 the 8ii of November 1709, formerly belonging to / 
 (Juilioiviruit, late of /' / ,7/////. London, notary 
 
 public, deceased, and now in the | n of his succes- 
 
 sor, JJciijuiiiin JVta/o/J, of the saim- p!;ne, notary public. 
 
 BallimQre, July C3d, i: 
 Exchange for -250 sterling. 
 
 y (lays at'tcr sight, this my 6rst of exchange, ray to 
 
 ,Vr, IM|. or order, tl.e sum i.l 
 
 hiinilred and thirty pounds sterling, value icteived, which 
 place to account /*. & IV. as advised by 
 
 C. F. C. Lutkt.
 
 OF MARYLAND. 399 
 
 To /. Ji. & 7). //. Ruckcr, esq. London, endorsed, Pay 1809. 
 to Mr. James Bryden) or order, value received. 
 
 1; f>. Miigruikr, 
 Jurnen Jtrytlm. 
 
 Pay Messrs. Emmott & Hroume, or Francis Krowne* or 
 order of either, value with Win. Taylor* 
 
 On the fourteenth day of September Anno D/ti. IT9I), at 
 the request ot Mr. Francis Browne, of London, merchant, 
 1 David GuiHonneau, notary public, dwelling in London, 
 duly admitted and sworn, went with the original bill of ex- 
 change, whereof the aforegoing is a copy, to the house of J. 
 Jl. and D. II. Rv.cker, esqrs. on whom the same is drawn, 
 where having exhibited the said bill to a man servant be- 
 longing thereto, I demanded acceptance thereof, whereunto 
 he answered that the said ,7. Jl. &. D. II. Ruckcr, were nut 
 within, and had not left any orders fur 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 suffer* 
 ed for want of acceptance of the said bill of exchange. 
 Thus done and protested in London aforesaid, in the pre- 
 sence of John Dcnton and Philip Lamendin, witnesses. In 
 teslimonium verifalls. 
 
 (Seal.) l)av. Gvi'lonneau, Not. Pub. 
 
 Faithfully extracted by me, this twenty-eighth day of 
 July, in the year of our Lord one thousand eight hundred 
 and four. 
 
 tn Testimonwm Verifalis, 
 
 (L. S.) Benjamin Newton, Not. Pub." 
 
 The defendant objected to the reading of this paper ia 
 evidence. 
 
 CHASB, Ch. J. The court are of opinion, that the mi- 
 nutes of the proceedings of a notary public are to be con- 
 sidered as records under the curtesy of nations; and that 
 a copy, under the hand and notarial sea! of the notary, is 
 sufficient evidence of the protest of a foreign bill of ex- 
 change for nonacceptancc. 
 
 If none but the original would be evidence, what a si- 
 tuation would the party be in where there are different 
 endorsors in different countries? Tn such cases copies must 
 be sent, and they are always received aa evidence. The 
 defendant cxcepted
 
 400 CASKS IN THE COLTRT OF A!'"!-: VL3 
 
 1B09 4. 11\t third bill of f.cc ejilions. The defendant. 
 
 prove that the plaintiff at -the time of the diauinu. and i>n- 
 doi-Min* the bill of exchange mentioned in the declaration, 
 was in partnership in trade with a certain John Titylor, 
 under the firm of Ifllfitnn Taylor, and that John Taylor 
 vas n dormant partner in the said house of ll'illiam Tay- 
 lor, at the time of such drawing and cndursfineiils. 
 e\idem-e that John Taylor was at tliut time, in /itiflitnorr, 
 where the business of the house of William Taylor was 
 carried on, and was frequently seen in the counting li.mo 
 of JTUliam Tat/for, transacting b;iines, receiving appli- 
 cations, and giving answers as a princi|>al in tlie btt.sinrv-i, 
 and was generally supposed, believed and understood, in 
 Baltimofi to be n partner in the house of Jf-'i/fiam Taylor. 
 Audit 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 cairieil 
 on business under the firm of John Taylor $ Co. and that 
 at the times of the drawing and endorsement of the bill, 
 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 neighbourhood of 
 Baltimore; and that William Taylor did then, and for a 
 long time before and afterwards, carry on trade and busi- 
 ness in Baltimore in his own name alone, and not in the 
 name of Wit Hum Taylor, fy Co. or in the names of Wil- 
 liam 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 tn+ 
 titled to recover in this action. 
 
 ' V-K, Ch. J. The Court are of opinion, that the 
 evidence offered is not sulm 'n-nf to prove that./o/w Taylor 
 was a partner of the house of Jl'illiam T<n/!ur. and there- 
 fore they refuse to give the direction prayed. The defen- 
 dant excepted. 
 
 5. A question aro*e as to the value of the sura of mo- 
 ney mentioned, in the bill of exchange, whether such value
 
 OF MARYLAND. 401 
 
 tinder the act of 1785, ch. 33, slinulil be at the time of the 1809. 
 protest or at (lie time of the notice? It was stated by the 
 attorney jreneral, that tin* circuit court had decided, that 
 the plaintiff ini^lit recover as much money as would pur- 
 chase 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' ia 
 to recover as much money as will purchase a similar bill 
 at the time of the verdict. 
 
 The verdict and judgment bein for the plaintiff, the 
 defendant brought the present writ of error* 
 
 The case was argued before POLK, BUCHANAN, NICHOL- 
 SON, and KAIU.K, J. 
 
 Harper and Purviance, for the Plaintiff in error, stated 
 that two grounds of objection wore presented by the 
 Jlr.it bill of exceptions 1. That it di,l not appear that 
 Payne, the witness, was a resident of the county where 
 his deposition was taken, sa as to give it effect under the 
 act of July 1779, ch. 8; and 2. That it did not appear 
 that Oiven Dursey, before whom the deposition was taken, 
 v.as 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 
 acknowledgments of deeds by femes covert grantors. Also 
 mms vs. Borvisr, 2 ILtrr. $ M-flen. 377. The acts of 
 1729, ch. 8, s. 5; 17G3, ch. 13, s. 2; 1796, eh. 43, s. 14. 
 Comt. Art. 2, 15,- and Stevenson vs. Myers, 1 Harr. Sf 
 Johns. 102. 
 
 On the second point, they cited Gordon vs. Hickman, 4 
 flftrr. fyM-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, ou^ht not to have been received in evidence, 
 until a foundation had been laid for its reception, by prov- 
 ing that the original had been lost, &c. They cited Git- 
 tint's Lewc. vs. hall, I Harr. $r Johns. 16; and Gassaway 
 vs. Dorset}, 4 Harr. APflen.-lQS. 
 
 On the third bill of exceptions, they contended, that the 
 eTi.Iimce offered was competent for the jury fairly to infer 
 that, there was a partnership. 
 
 vor. 51
 
 403 v iSES IN THE ('(HUT OF AP?KAI.S 
 
 ISi Martin, for Hie DiTrndant in error. on tl,<> /V.s/ bill ofe.x- 
 
 C.rp<: ;- to tin 1 firnt fioiat, t LtSift 
 
 -. <S- M- II\. -ir>. ft'//;, 
 
 //.-///, 1 //rr. .V |i The acts of July 17T9, c/i. 8, 
 
 and July 17 :i. efc 14. 
 
 On the second poiiif. !. I to Carroll d nl I 
 
 r*. \ortrnntl, 4 /furr. k .I/' l/cn. '287; ami /.'./ },(irte liuil- 
 vuin iV Swurtirnuti 4 Crunch, 7.1. 
 
 On the Sfcow/bill of exceptions, he cited IValrond vs. 
 J'un Moses, 8 iVoJ. 
 
 THE Co CUT were of opinion, that there was nn error in 
 the opinions expressed by Hie general court in the seveihl 
 bills of exceptions. 
 
 JUDGMENT AFFIRMED. 
 
 JUNK. DORSET vs. GASSAWAY. 
 
 APPF.AL from (he General Court. The present was aa 
 "'" T"'rH*Vf.im action of replevin, brought by the appellee for two ne;r 
 
 i a form 1 r tti*l 
 
 between the tame parties in the tame rrfion. nn- not evidence lit n nrw trial of thr inmp cause 
 
 If slart remain in h- |>oi i MII i.f th- i n lur. tfit-liill i-l'vi! 1 TI'|I>' ' ,m! li,il,p< 
 
 llitr renixim- ' in hi' poi *><m. i a msittrr of fuel f >|. iht jur\ ; if ll r> liinl ilirv r- ni't in i 
 mnon, th*> txll of ia'r i n.i r< qiiin-d iu be recnrdrd; miii a >-. i.nt i i uli ntc, Hlihou^h it m nrnid* 
 ed. unl->' the t-xcciition ol' jl is in l^^(l. 
 
 To my the foundation tor proving an original deed lol, the evidence must be RIH-H to ilie court. 
 (nfte) 
 
 Proo* Sein? rnnde f the li of sn otitrinal il.-<'(l nf nuirtrntT* of land and s'arri, datri! m 17ft3. the 
 inivt/tni/i "vat admltt<il in lit rmd m U-Riil rviil< nt-c, Qjlinnrli file |I-<H| wa> not n-vuijcd in tbe nino- 
 -'itx-d hv la, o far .M i-f-pei-n-il tin- sl>, in (li>|""f 
 
 Where a dtrd i lot. or i>t in the pc<-rr tlit party to (.rudnri- it, it is only nrcearv to show an 
 1 <-|iy. r tiniv, th. i ,.TH. iit.ot tin- 'lifil 
 
 Certain Oi-l r< fmeil To IK- ailmitin) in rvidt-ncr "> l-mvr. thnt n jx-rv (iitain 
 
 lam, Knd liad made a Tollman, ri" .f ill m. in vi r \>nnl HH\ , t-n- (li- sl:i\. 
 
 C< rtnin art and drc an, 1 ' li mlmii. iil>. )>!< TH tn I . sln\i- foi v. ' 
 
 clion ot r> pi< uu was lire light, and I tl. 11.;, nrx- not c iili-nc-c lodtTiat i!:i 
 
 {itniniilT 
 
 An affid'tit ma !r hy a debtor, and pnrrurnt into ihr ireainry nud'T the trniln law , adnnii- d i n 
 .. n w. iiiufliicd, and ini.il ..nry 
 
 Pri^vdmi^. in fli^nrrry in di r sn nm.!\i-nt Inw. xr.- nr.l <-\ iili-n-i- in favour -.| th' p< rtnn who had 
 i.liinMH d in>- ' IH , to prove an ackitou ! -d^iueiii ai.d adniiisii>ii by him on In. u|iplii a. 
 
 lii'ii i 
 
 A bill in ( ..'1 ihr |-n.r<-.-i|intr ind i'i-rr-e thrrron. rnnnot b< ro: d in evid-nce in aa 
 
 uc'i'in Se | we-i. I'i'V- r,-n: pTrm- trnm ilnc nxn-.i il in <: 
 
 An an ..,'''. nt do- 
 
 i r' idi-iir.- I'.iii ill.- (' i l.irnm.i: 4.1" ill. i'i '.\ i.i'.nn 
 f\ ^-i^ /itt>e may rcrur to the antwe? to refirth h memory ai n> tin- dci -larauuiii nmJe to 
 
 \-> 'f-n m "ill V ni lii nn ia ! c. llr r.iniMit n-l up hi- ilm-li<r(fo undrr an 
 
 into T in law. 
 
 If i ' ilirm, 
 
 ttild thru. ! 
 
 ..n!il i>- to 
 
 pun lh' ahn lit. nrrrl<i, .i( ih- 
 
 'H-A-, ami In. ; 
 
 rit. ,1, iiili- to tin- !.IM >. i I MI in .. w : i i-i:.l-iii . :<ii(i inn In i]i I. HI, ln> lonlruit 
 %ii>. ' 
 
 ir a iM<t i* .ur on m.irnrr.e and on op n aeeount, an-' |i ' , are tutile by the drbtnr, 
 
 - ill apjih ih li. MI'II ir:u- 
 
 'i hit ditchir^i- i.:i'!i i iniii...% nt law, ma) be 
 
 ' ,1 ,>,,,. nn ,),,. n , | |. 
 
 ~ il. h<> hud nui paid for it. aix! % i 
 
 Inar .1 igc as the) Utiuk Ute (iliuutfu juxlr en- 
 
 titled to, an tf0fMM Cor U. iujury .u.umitl
 
 OF MARYLAND. 403 
 
 slaves, James and Harry. The defendant, 'the present 1809. 
 appellant, ) pleaded rion apit and property. General repli- 
 cation and issues joined. There had been a trial in this 
 case in the general court at October term 1799, and judg- 
 ment having been rendered for the defendant, the plaintiff 
 appealed to the court of appeals, where the judgment was 
 reversed, and a jtrocedendo awarded for a new trial. See 
 4 Harr. fy M'-Ken. 405, 
 
 1. The defendant at the new trial at October term 1805, 
 ofl'ercd in evidence to the court, the admissions made by 
 the plaintiff's counsel in the spt rial verdict taken, at the 
 former trial at October term 1799, to prove the existence 
 of the mortgage therein stated, 
 
 AJason, tor the Plaintiff, objected to this being done, 
 and cited Aluhoncy vs. Aaliton, 4 Harr. 4- APHen. 95, 
 322. 
 
 CHASE, Ch. J. Facts are often admitted and stated for 
 the purpose only of bringing a particular point of law be- 
 fore tlu- court. As the finding of the jury, in the special, 
 veiciict, was on the admissions of counsel, it is not evi- 
 dence to prove the existence of the mortgage. 
 
 2. The defendant oflered iu evidence a bill of sale, for 
 the negroes mentioned in the declaration, from Clerke, ad- 
 ministrator of liussell, to Edward Dvrscy, one of the origi- 
 nal defendants in this action. 
 
 Mason, for the Plaintiff, objected to the bill of sale's be- 
 ing read, unless its execution was proved. 
 
 CHASE. Ch. J. If the negroes remained in the possession 
 of the vendor, the bill of sale is required to be recorded; 
 and whether the negroes remained iu the possession of the 
 vendor, is a matter of fact tor the jury; and if they find 
 they were uot in possession of the venJor, then the bill of 
 sale is not evidence, although it has been recorded, with- 
 out proof of its execution, it not, in such case, being a pa- 
 per authorised by taw to be recorded. 
 
 3. The first bill of exceptions^ The plaintiff offered in 
 evidence that the defendant, in the year 1782, being in 
 possession of a number of negroes, sold them at public sale 
 to the highest bidder; that at that sale Thomas Gassaway, 
 the father of the plaintiff, purchased negro James in the 
 declaration menlioiicd, and negro Rachel, the mother of
 
 401 CAM> IN r.n: rornT or 
 
 Jftirn/, the othrr s-laNe in the declaration m-ntiom 
 
 n/ not l>i in- thru born, i ! ;.r.d ./< / 
 
 then de!i\< i:d l>\ . !< 
 
 !-,r!(l :\lid ] 'i.eit', tn-itl.u v. i"; i'\\;is 
 
 to his son, Ht plainlifi, imd thru cltlivr, 
 
 !' them in )'i:n, v.ho !. M :;i '. pciRtet-sed MTMI until 
 they . \\hen they were tdkeu frtiui 
 
 bv the defendant, 'i'lu-v u-t-ir M> i..'. ! lime 
 
 before the brin^ii:;-; cf thi- su'n. '1 l:o j !..'!:!iil t!in pnoed 
 UM! /om JfeuteJA herein after named, ;-- iu ih.' 
 
 . tiuMi I'l-tiviiii i' i.'f Muniluntl\\\ and liurii::; r':.r %c.ir 
 J77,'. Tl'.e (IdViidaiit lln-n cfl'cri'<I evidiiicc tu i!.i / 
 
 (a), by (he oath of Jiobf rt Yi.viiy. tl.nt he v:t-< sen" 
 past the agent of" i/(. '/, ai;(I (hat 
 
 cf a !: ' 
 
 by the defendant to Jtvsstll', that the 
 
 in the vrar ITi.n That lie \\;>< nrl! :n r:rairi(el \\itli tlc 
 defendant and hi^ IiaJidwiitiii^, ami that the n:o, 
 si^noil by the defendant. That !. does not 
 vhcthcr the mortjratre was acVnowledjred I 
 
 w o if 
 
 M j.i-.tice. Thai it \vas an mi^'mal | aper. at:d t'-.at to the 
 IT -l of his recollection, he dclivcnd it, about 10 c.r 1'2 
 years a;jo, to James Clcrkr, then the r.'.liiiitiiitiatw (.: 
 //, who had died before that time in (.*. J'. '\ 
 ant then read to the court the letters of adniiiiistrJraoa 
 granted to James Clerke on Ittt^dl's estate, dated (U- 1 Itli 
 of August 1789. He further proved by ]'< .1 ,:L\ that 
 the mortgage purported to be a ecineyaiice of a i.iiiuln'r 
 of negroes byname from the defendant t /. 'vr//, and 
 amongst those negroes >\eie t\\o, to wit, .' , (tifo. 
 
 He further proved to the court by the trs:in i i;\ < 1 ( l.-nrlcs 
 JJ\t!!;rr, that L'm>nrll s-hipped lar^e fjiiar.tit: ; 
 fore the year 17G5, to the defendant, and that ( ' 
 Inmn \va> t|u ajjent of Ititssftf. That he v ' t, br- 
 
 twt-en t!se yiMr-s 17COaiul 1'C.i, when GraJ cr. : c. now de- 
 ceased, and William Ln.r, now deceased, ai-d tl.c tit -lendant, 
 were together in the -room of /.,".>, atv.hicii time 
 
 the defendant executed - >,f <;f 'iitin:, which 
 
 Walker witnessed, and that he never < other 
 
 (a) CKASK, Ch. J. To lay the foundation for proving :. 
 ginal deed is lost, the evidence nsua; be to tlic court.
 
 OF MARYLAND. 405 
 
 executed by (he ik-fendaiM, in llie pn-su:cp of himself and 1809 
 Z?/;r. lie furili* i- cllcrcd in evidence to the court, by 
 J t.?-T - . that the ukii'i.1 iiioi ;_. '.'.. I ;i*.in before referred 
 1o, v, as i'.i'!iM'i i'l by him to ( /tr/.e, about tin 1 year 1797, lor 
 the purpose (if scuding the same to J'kiludffyliia, to h.y 
 before tiio comn tsHviure there in session, under the 
 treaty with C.rutt-ttriti.lii, to establish the claim of Ihis- 
 .v .//. lie- further ofiered in evidence to the court, by 
 Edward tialt. that (/(/Ac, the administiator of Kutsaill, in 
 a convei-hJi'ion witli him lately, infonv.eil him that all the 
 pni TS deliM-rcd to hin;, (:lcr!,c, by fitktrt Y^i'.n^^ rc'.r.ting 
 to the ci.'iim cf J.'n. tuctl against the defetidaut, were by him 
 iliH-. en-d over to H'U/iam Ccoke, Enquire, to prosecute his 
 cliiiui Ld'ore tl.e ci-n '.n.'^sioners in Philadelphia. He then 
 read intMidftice to (he court the deposition of Jniiutm 
 C'cchc, K><jiiire, taken by consent, who proved, "that some 
 years ago he was applied to by James Clerke, administrator 
 cf James Isitssc'}, late of London, merchant, to file a bill 
 in chancery against John Horsey, and Lullicr Martin^ Es- 
 quire, and others, tlie bargainees of certain lands which 
 they purchased of Dor.&cy, and which he had previously 
 mortgaged to Jiins^dl^ that among the papers delivered to 
 him by Clcrkc, were several bonds passed by Dorsey to 
 /I'WA.SC//, but tlie deponent cannot recollect whether the ori- 
 ginal mortgage, or a copy of it, was delivered to him. That 
 he filed the bill in chancery, and while the suit was depend- 
 ing, he uas applied to by Edward J)or.iey, now deceased, 
 to purchase sundry nepn.es, also included in the mortgage, 
 and fitter consulting the complainant, this deponent agreed 
 that the negroes should be valued by disinteiested persons, 
 which was done, and he sold the negroes at the valuation to 
 . /Jersey, and received from him, or from some other per- 
 son on his behalf, the purchase money for the negroes, and 
 paid ;hc same over to the complainant. That it being af- 
 terwards ascertained that John Dorsey had not the legal title 
 to tiie lands, or to some material part of them, at the time of 
 executing the mortgage, the deponent exhibited a claim on 
 b<half of Clerhe, the administrator, to the commissioners (hen 
 sitting at Philadelphia under the treaty of amity, commerce, 
 &c. between Great Britain and America, and withdrew all 
 the original papers which he had lodged in the court in 
 the said suit, to present their, together with a nieinp- 
 ^ial on behalf of the adnaui^iu'u.i, to tlie commissioa-
 
 106 IN THE COURT OP AITKAL> 
 
 1800 :i order lo ohtain compensation for the money paid by 
 
 Juhn into tin- treasury <if this state, tovar.i- 
 
 lactiun of the n .ml several bonds. That he can- 
 
 not charge his nu mt.ry with the particular papers referred 
 to, and filed \\ith the memorial in tin* office of the com- 
 ners, nor has he any recollection that any document 
 va* wantini; to s-.ih.var.ii.iie the claim. He Ki> >ince search- 
 ed among hi>nun papers, and cannot lind either bonds or 
 mortgage from J. Dorsfv to Russell in his t i, and 
 
 tl>;:t whatever [.:i; TS w.-iv l.dgcd with the commissioner?, 
 he the deponent has heard and believes, have since been 
 removed to Grail liriUrin', and from his not bring aMc 
 to tind any of the said papers, the deponent believes they 
 were all lodged by him with the coinmi--ioner-i, and ate 
 turn in their possession in (treat liriicin." 
 
 The foregoing; evidence was cfl'md by the defendant to 
 lay a foundation for pro>m that a dil of ni< 
 certain negroes vas cxcruird by the defendant to James 
 H in irf-3, under ar.d through which the defentlant 
 claimed the i.rgroo for wl 'uli the piesent suit is bi 
 and that the deed of morljiaue is not in the power. p< 
 s"nn or control, of the defendant The defendant then 
 produced an original record book, one of the iand r 
 f the general court, and oil'.-red to read to the court and 
 jury the insjtexinnts of the deed, found on the rccoid* uf 
 the said court, from the defendant to JlusycU, datcii 
 if December 17C3, ami the marginal entry in the i 
 book. staMiii; said deed to be examined, as evidence of the 
 contents of ti.e original deed of niortaa^e. pm\fd to ha\e 
 been executed by the defendant lo JhueO in 170 3. To 
 the reading of tln> paper from the record book, as evidence, 
 the plaint itV objected. 
 
 Shavjf. Mason, and Johnson, for < he Plaintiff, cited \ 
 Morg. F.its. 159, ICO. Pope's M '', 34. 
 
 '/'i alt Per A.'i*, 355, 4.14. Eden vs ChuJkiil, \ 
 1 17. f'/imt;/'* /.user i-*. tl'atl.-hix. I //arr. \ ./ 
 527. Hull vs. < \e.e , (ante 380.^ l^uk^s Li U. 
 
 97, HOj 4- Hull. A'. /'. 255, 256. 
 
 I'm, (.Ttfnrnri/ Ctnrral.) and Kni. fur the defendant, 
 ri'.-.l llnH rx dit!',- .-, (unit 580J 1'aikc's 
 
 .ud 1 Murg. /:. 101.
 
 OF MARYLAND. 4$] 
 
 CHASE, Ch. J. The question before the court now, is 1809 
 
 nt from what it was on the former trial. Here the 
 defendant ha* laid a foundation whereon to authorise the 
 inspex-lmiis of the deed to be read; and the question is, 
 what other kind of evidence will be sufficient for that pur- 
 pose? 
 
 Where a deed is lost or not in the power of the party 
 to produce it, it is only necessary to show an examined 
 cop}-, or prove the contents of the paper. 
 
 The court consider the inapeximns in this case to be a 
 true copy. The clerk had authority to record the deed 
 as to the real estate, and the copy is wood as to the real 
 estate. If it is a true copy as to the land, it is equally so 
 aa to the personal estate. The court consider it the next 
 best evidence to the deed itself, and far preferable to 
 parol proof. 
 
 This case is distinguishable from that of Cheney vs. Ifat- 
 kins. In that case there was no question about the inspex- 
 inim of the deed, tiiat the court recollect of. 
 
 In the case of GUI ings vs. Hall, it was the inspeximus 
 of an ancient deed which needed no recording, and where 
 the clerk had no authority to record it; but as the possessi- 
 on had gone with the deed, it was on those two grounds 
 read. 
 
 The court are of opiiion, that the inspcximus of the deed 
 of mortgage, from the defendant to James Russell, is legal 
 evidence, an;i admit the same to be read in evidence to the 
 jury. The plaintiff excepted- 
 
 4. The second bill of exceptions. The defendant then read 
 in evidence an affidavit, (on the files of the treasury,) made 
 by him on the 18th. of. May 1781, before Jllhn Quynn, Es- 
 quire, a justice of the peace of rfnne-jlrundel county, [See 2 
 /Ian: Eni.250, and the act of October 1780, ck. 5, s. il.] 
 lie also read in evidence the entry in the books of the trea- 
 surer, of the payment into the treasury by him, the defen- 
 dant, on account of a debt due to James Russell, \_Sce 2 
 Jltirr. Ent. 230 and 251, and the act of October 1780, ch. 
 5, s. 11.] He also produced and offered to read the re- 
 cord and proceedings in the court of chancery on his ob- 
 taining the benefit of an act of insolvency, to prove that 
 William M'Laughlin and Archibuld Alontreiff, were duly 

 
 403 IN T!IE COURT <>;< API 
 
 I 
 
 18f)0. appointed his trustee fo). II <! in 
 
 that .!/' La.if'Jt Itn and 
 
 of the trust, anil tliat M'f,-hlin d'n-d about the 
 y.-.ir 1795, and that MiHivn-lJf MII v:\ed him; and al- 
 so offered to read in r r.ls of the 
 
 general court office, certain entries of a su!l brought in that 
 court in the year 1707. 
 of the dclVndrtiit, against Tliomns Gansuu'Htji and the re- 
 
 newals thereof. I] ;> offered M re;;d in evidence the 
 
 < 
 
 "1 aiul proceedings in the court of chancery in 1797, 
 of Tlioinus Gassuv^nfn haviui; a])plied for and. obtained' 
 the bcnefitfcf an insolvent law, in order to prove that Tho- 
 mas Gassawtw never paid any consideration for the ne- 
 p-oes before his voluntary s;ift of thvia to his son, the j.hiin- 
 ti;V, nor at any tiuie since(/>). 
 
 CHASK, Ch. J. T!ic court refuse to admit tl>e above facts 
 fo lie given in evidence to the jur}\ to prove ihut T 
 ' 'tirat/ never paid any consideration for the n< 
 before his voluntary gift of tlu-ni to iits son, l!ic pLuntiH', 
 nor at any time sinccj the court bein^ of opinion, that tiir 
 acts and declarations of the defendant in this case, subse- 
 quent to the sale by him to 77{o;>ia.> Gassatvciy, and \\lut 
 over was consequent thereon, are not evidence to defeat 
 the claim of the plaintiff. But the court are of opinion, 
 Iliat t!e affidavit and payment into the. treasury, by the de- 
 fendant in 1781, prior to tlie sale by him to T!i;tm'.i* 
 sawny, are admissible evidence to prove tl>e defendant wag 
 indebted to James /.Vrwr.V, and made the payment into the 
 treasury in the manner therein stated. The deiciuL 
 tepted. 
 
 5. The third bill of exceplinns. The defendant then 
 read in evidence, the affidavit made by the defendant be- 
 . Hie n Qui/nn, and on the files of the tivasmv; al--> 
 the entry in the l)<>!^ of the treasurer, of the payment by 
 the defendant into the treasury on account of a debt due 
 -. produced and oil'i-p-d uii-.-i.d there- 
 cord and proceedings in t!i? court of chancery, on the 
 ;i;.jili, alion of the defemlant, and his obtaining the benefit 
 
 (o) ; .i*t littssell was a creditor, 
 
 and 1'fi'inuu Qasvatuuy a i! 
 
 , in }>'.* nclicJulc, ri'ttiracii the trus'.ccs o.
 
 OF MARYLAND. 409 
 
 oFan insolvent law, to prove the acknowledgment and ad- 1809 
 mission of the defendant in 1787, that his mortgage to Rus- 
 sell in 17G3 was then outstanding unsatisfied. The defen- 
 dant then prayed tlie opinion of the court, and their direc- 
 tion to the jury, that such evidence, though subsequent to 
 the sale of the negroes by him to TJiomas Gdssftway, is 
 competent evidence against Gassaway, or the plaintiS", he 
 the defendant then holding anil possessing the residue of 
 the mortgaged property, or part thereof. 
 
 CHASE, Ch. J. The court reject the evidence, The ue 
 fendant excepted. 
 
 C. The fourth bill of exceptions. The plaintiff* then pro- 
 duced, and offered to read in evidence, (for the purpose 
 uioue of proving that the mortgage from the defendant to 
 James llusscll was paid and satisfied before the commence- 
 ment of the war between America and Great-Britain,) a 
 bill in the court of chancery filed by James Clerke, ad- 
 ministrator of Russell, against Luther Martin, William 
 Uuchanan, Archibald Moncreiff\ Robert Dorset/, &nd Win. 
 Jf. Dorset/) with all the proceedings, and the decree of the 
 chancellor thereon. To the reading of which the defen- 
 dant objected. 
 
 CHASE. Ch. J. The proceedings are between different 
 parlies, and, therefore, cannot be used as evidence in this 
 case. If (.lie decree had been tiiat the mortgage debt was 
 unsatisfied, it could not be used against the plaintiff, and 
 the rule must be mutual. 
 
 Although the answer is in the handwriting of the de- 
 fendant, yet he may have only acted as a clerk. He has 
 not himself sworn to it. 
 
 The court refuse to let the proceedings be reaJ to ths 
 jury for the purpose required by the plaintiff's counsel. 
 Tue plaintuF excepted. 
 
 7. The fifth bill of exceptions. The plaintiff then cross 
 examined Robert Dorsey, a witness produced on the part 
 of the defendant, and proved by him, that he appeared, 
 together with Archibald Moncreiff and William II. Dorsey , 
 as the trustees of the defendant in this cause, to a bill in 
 the court of chancery filed against them by Clerke, ad- 
 ministrator of Russell, and made the answer, now pro- 
 duced, to that bill. That he obtained his knowledge of 
 the respective facts, stated in that answer, frwra the tle- 
 YOL. Ji. 52
 
 CASKS IN THE COUUT OF APPEALS 
 
 fcnJ: i !it in this cause, and from his books, and that the an- 
 
 il in tlie handwriting of the defendant in this 
 The plaiutift then prayed the opinion of the court, and 
 lii-eclion to the jury, that if the jury are Kili^lied, 
 from the evidence, that the respondents, named in the ^aitl 
 answer, obtained their knowledge of the facts stated th 
 from the defendant, and the answer is in the handwriting 
 of the defendant in this cause, that then the answer i> evi- 
 dence to prove the mortgage debt had been discharged as 
 is stated in the answer. 
 
 CHASE, Ch. J. The court are of opinion, that the de- 
 clarations of the defendant are evidence admissible to the 
 jury, and that the witness may recur to the answer to re- 
 fresh his memory as to the declarations made to him by 
 the defendant. But the court refuse to allow the ai 
 to be read in evidence to the jury. The plaintiff except- 
 ed. 
 
 8. Tlic sixth bill of exteplion*. The plaintiff then of- 
 fered in evidence, by the testimony of Robert Dorsey, 
 that the contract and purchase made by Edward Dorsey, 
 vilh and of William Cooke, esquire, of the negroes men- 
 tioned in the declaration, as stated in the deposition of 
 Cooke, was made by Edwcrd Dorset/, at the request and 
 tor the benefit of the defendant, and that the money or 
 juice paid to Cooke for the slaves, was the money of the 
 defendant; that Edward tiorxey, or his estate, he bring 
 dead, have no interest in the slaves, but that the defen- 
 dant is the only poison tlMimmu; under the purchase from 
 Cooke. The defendant farther offered in evidence, that 
 ]> purchased the negroes in controversy in 1796, through 
 E'lirard Dorsry, from Clerke, the administrator of Jtirssclt; 
 that the negroes were sold by the defendant to TViomw? 
 Gassaway, under whom the plaintiff claims, in 1782. 
 And to prove that he the defendant, between 17H 
 1796, obtained the benefit of an insolvent law, he produc- 
 ed in evidence the insolvent law passed at April 
 1787, ch. 34; and also produced and read in evidence the 
 record, proceedings, and release of him the defendant, 
 under that insolvent law. He further offered in evidence, 
 that the negroes in controversy are the descendants of ne- 
 gro Rachel, included in the mortgage from the defendant- 
 to Russell, and sold, as before stated, by the defcndaut to
 
 OF MARA r LAND. Hi 
 
 TJiomas Catsnway in 1782. The plaintiff then prayed 1809 
 the court for their opinion and direction to the jury, that 
 if from the evidence the jury are satisfied that the pur- 
 chase of the negroes named in the declaration made by 
 Edward Dorscy, as stated in the deposition of William 
 Cooke, was made by Edward Dorsey, by the authority and 
 direction of the defendant, and for the benefit of the de 
 fendant, and that the purchase money paid to Cooke for 
 the negroes was the money of the defendant, that then the 
 plaintiff is entitled to their verdict for the negroes in the 
 declaration named, and damages for the detention thereof. 
 
 CHASE, Ch. J. The defendant cannot be permitted to 
 disaffirm his own sale. He cannot be suffered to set up 
 his discharge under an insolvent law to disaffirm his prior 
 acts. 
 
 The court are of opinion, that if the jury find the mort- 
 gage was satisfied in the year 1 782, when the defendant 
 sold the negroes to Thomas Gassaway t that the plaintiff 
 has a good title to them. 
 
 The court are also of opinion, that if the mortgage was 
 subsisting in 1782, and the defendant sold the negroes, 
 claiming the absolute ownership in them, and for a full 
 consideration, although as to James Russell his sale would 
 transfer only the equitable interest in the negroes; yet &3 
 between the vendor and vendee, the operation of the con- 
 tract would be to pass the absolute ownership in the ne- 
 groes to the vendee, and according to good faith and ho- 
 nesty the subsequent acts of the defendant, in perfecting 
 Lis title to the negroes, will enure in law to confirm, and 
 rot to defeat, his contract with Thomas Gassaivay. The 
 defendant excepted. 
 
 9. The seventh bill of exceptions. The plaintiff then 
 offered in evidence, by the testimony of Robert Dorsey, 
 that he understood from his father, the defendant, since 
 the year 1790, that he had made considerable payments 
 and remittances to Russell, between the years 1763 and 
 1776, in sterling money, amounting to ^3,915 18 Q; that 
 Russell'.'! administrator claimed the right to apply the mo- 
 ney so paid to the satisfaction of certain debts due from the 
 Defendant to Russell, upon open account, contracted after 
 Die date of the mortgage, and that the representatives of
 
 IN Tin: rorRT ov AITKALS 
 
 the defendant claimed to apply 0e payments 1o the 
 faction of the mortgage. The plaintift' then graved il.c 
 court for their opinion and direction to the jury, that it" 
 they aro satisfied tliat the said .sums \vere | aid at the times 
 above stated, and there is no evidence to satisfy them that 
 the payments wl.en made were p.ii titular! y applied to any 
 specified debt. either by tin- defendant or /iN/.v.ve//, that then 
 the law \vill apply the amc to the satisfaction of the iiit.it- 
 
 CnAsr, Ch. J. There can bo nn doubt hut the lau- v. ill 
 apply the payments to the satisfaction and discharge of the 
 niortjiau-e. The court give the direction prayed. The 
 defendant exceptcd. 
 
 10. The eighth bill of exceptions. The defendant then 
 prayed the opinion of the court, and their direction to the 
 jury, that the declarations of the defendant, which ni > 
 
 to have been made by him since the sale made by him to 
 Gassawm/, and since the insolvency of him the defendant, 
 cannot be used in evidence by the plaintill'to the injury of 
 the title and interest of Russell, or any other person claim- 
 ing under Russell. 
 
 CIIASF, Ch. J. The court are of opinion, that the decla- 
 rations of the defendant, are evidence a~ainst him. T.e 
 defendant exccpte.d. 
 
 11. 11\e ninth bill of exceptions. The defendant then 
 prayed the opinion of the court, ami their direction to the 
 jury, that as the defendant only insisted that tl.. 
 
 Mas paid by certain payments being made, which ou^lu to 
 be applied in the first instance to the mortgage in prefe- 
 rence of other debts, not because he did not owe more, but 
 that \<hat he paid should be first applied to the mortL 
 that the principle, that the payments so made, should op- 
 ply to the discharge of the in- : mid only '> c.micd 
 
 into eftrct in favour of honafule purchasers haxing bi.n^ht 
 and paid for the articles, and not in fav.ur of the plaiiitill', 
 \vliuv father had not paid for the negroes by him pur 
 chased. 
 
 CHASE, Ch. J. The court are of opinion, that the pay- 
 ments made by the defendant to fiiisyll, if the jury -sliall 
 find they were nude as stated, ought to be ^applied to the
 
 OF MARYLAND. 413 
 
 dischatge and satisfaction of the mortgage in favour of the 1809. 
 plainlitt', unless t!ie jury shall find that Tfwmas Gasw- v v * 
 v.'ay made tlie gift to his son, the plaintifl'. to delraud his V, 
 
 G:ixw$y 
 
 creditors. The defendant cxccpted. 
 
 12. The tmlh bill of exceptions. The defendant further 
 prayed the opinion of the court, and their direction to thn 
 jury, that unless the jury believe that the mortgage money 
 was satisfied before the sale made by the defendant, or 
 that the plaintiff', or his father, under whom he claims, had 
 pnid the purchase money for the negroes to the defendant 
 or Russell, er some person entitled to receive, the same, 
 that the plaintifi' was not entitled to recover any other than 
 nominal damages. 
 
 Martin* (Attorney-General,) for the Defendant, cited 
 5 Bac. J3b. tit. Grant, (I).) 382. Walker vs. Constable, 1 
 Uos. 4- Pull. 306. Moses vs. JUacferlin, 2 Burr. 1005; and 
 Esp. A 7 . P. 101. 
 
 CHASE, Ch. J. The jury may give what damages they 
 think the plaintiff is justly entitled to as an equivalent for 
 the injury sustained. 
 
 The court are of opinion, that it is within the province 
 of the jury to ascertain and fix the quantum of damages, 
 as an equivalent for the use ef the negroes, according to 
 what they may think right on consideration of the evidence; 
 and that they arc not restrained, by any principle of law 
 operating on (his case, from the full exercise of their judg- 
 ment. The defendant excepted. 
 
 It was admitted, and it is to be considered as part of 
 tl>e statement in this cause, on which the court has given 
 its opinions, that James Russell, the alleged mortgagee 
 of tlie defendant, was in the year 1763 a subject of his 
 Kritannic majesty, residing in Great Britain', that in the 
 year 1772 he \vnsin Maryland on a visit, and soon re- 
 turned to Great Britain, and continued to reside there 
 from the year 1774 to his death in 1787, a subject of thf 
 crown of Great Britain', and that on the 4th of July 1776, 
 the then province, now state of Maryland, became an in- 
 dependent government, and from that day until the 30th 
 of September 1783, open war existed between this state 
 aud the king of Great Eritatn.
 
 4U CASES IN THE COURT OF APPEAL- 
 
 1809 -Met ami judgment for the plaintiff. The defendant 
 
 tied to this court, ami on the death of the apj-ellee, 
 liis t- \exii lur \vcre tr.ude |.;.i 
 
 The jue*'Sns arising under the second, third, sixth, se- 
 ';lh. i)infh and tenth bi 1 ,>tinns, wen- ar- 
 
 neture I'OLK, BUCHANAN, NICHOLSON, and EABLK* 
 J.by 
 
 t, for the Appellant: and by 
 Juhnzon, (Attorney-General,) for the Appellee. 
 
 Tin: Corn r ajrrerd with the General Court in the npini : 
 \|n-f I'd in the several Mils of exceptions taken on* 
 the part of the defendant in that court. 
 
 JUDGMENT AFFIRMED. 
 
 HAMILTON vs. BF.ALL, el aL 
 
 \ , > 
 
 A H. h-M-;: on- APPEAL from the Court of Chancery. The complain- 
 
 ant, (now appellant.) by his bill filed on the 20th of April 
 ivr! h> 1708, stated that George Gordon, beinjr seized of certain. 
 
 the Irauil :md ini- 
 
 r r tf'e lots in fee in Gtorgt-jTottm, by hi-* will dated 1766, de- 
 j-i, t,. .A TIM, - a vised the house and lot No. 48, and the acre of land wherc- 
 
 rouvt \aiirr I" It J 
 
 n, Mr -tar lot t,,r on ^|, c o |,| warehouses are erected, in fee, to his "rai. 
 
 R *rtU|i| fl'H*'* * * 
 
 1..JI i :uti i.i. .uiftnn, and lot No. 52. witit the wart 
 
 DIII in ciianct r\ HI > 
 
 ::-ercon,in lee, to his granilson Chtirlei . Hamilton. That 
 
 nlvft'r.r n'i/.M 1 - a ^ C1 ' ^l' death of the tes-tator. George and C/iarlf:, rc^pec- 
 
 ^i'/rtV'n","!, 1 t'rvel y entered, &c. That they both afterward-, wet.t to 
 
 '"" sea, and died intet'aie, leaving Thomas Hamilton their 
 
 tij' "'t'.'a "<S^. a .' heir at law. T'n::t Thomas I/cniillon, being sei/.rd <if the 
 
 [TwYvrilnt *B a lota dt'vi-ed \n fi'^rze F. Ifni,iitlon, died in 1783, \\ith- 
 
 p*"r- out havO| made any valid testamentary disposition of the 
 
 romvtetfMiit tuf- li ill not having been executed in the manner pic- 
 
 ti.-itp i-ix.-iri. i,.- scribed bv law to pass rt.il i-'.i:r; and havir't died intes- 
 
 .!- J , 
 
 ; ..n> i.nih tatc as to the lots, the Mine descended to If t Ilium tfa- 
 
 jntr ' i i i 
 
 imp-nv,.i ami HIM/OH, who was liu eUk'.st son and heir at law. 1 hat 
 
 *h*ni-><l. ii : 
 
 in Hamilton aftenvarda ilied, having made his will 
 M June IT liich the lots aje not particularly de- 
 
 . but if they pa.-^ed li\ the exprus^iou in t'ue wi!!, it 
 . (I,.- complainant, and who was his eldest son and 
 '" Utrir at law. That after the dc-itu of his father, the ccia* 
 
 trrov't.
 
 OF MARYLAND. 415 
 
 plainant resided in Monongalia county, in ilie common- 1809 
 wealth of Virginia, and that in the year 1791, Krook& 
 He(dl, since deceased, (whose father had intermarried with, 
 Ruth) one of the daughters of Thomas Hamilton,} welt 
 knowing the premises, and that for want of a legal execu- 
 tion of the will of Thomas Hamilton, the lots were the 
 property of the complainant, and intending to defraud the 
 complainant thereof by untrue and deceitful pretences, frau- 
 dulently procured Andrew Hamilton, who was named execu- 
 tor in the will of Thomas Hamilton, to repair to the com- 
 plainant in Virginia, where he resided, and by deceit and 
 fraud to obtain a legal conveyance from him to ft call for 
 the lots; and that Andrew Hamilton, acting by the pro- 
 curement, and by the directions and with the consent and 
 knowledge of lieall, falsely and deceitfully alleged and 
 pretended to the complainant, (who was then little more 
 than 21 years of age, and was ignorant and unlettered,) 
 that the will of the complainant's grandfather, Thomas 
 I2unulton t was good and valid IB law, only that he had not 
 thereby authorised or empowered him, Andrew, although 
 appointed his executor, to sell the lots; and Andrew fur- 
 ther informed the complainant, that he must give him a 
 power of attorney for the purpose of acknowledging a con- 
 veyance from the complainant to Benll of the lots, which 
 Andrew said he had consented to sell to Beall, under the 
 will of Thomas Hamilton, or that the complainant must 
 go to Maryland to execute and acknowledge the same, or 
 that he (Andrew,) must apply to the governor and council 
 of Maryland for an order to sell the lots, under a late act 
 of assembly of that state, which Andrew falsely alleged to 
 have passed, and that the complainant therefore would be 
 obliged to attend at Annapolis to make valid the sale; That 
 the complainant, being young and unlettered, and placing 
 confidence and belief in what Andrew, in behalf and by 
 the procurement of BeuU, falsely told hiru, and fearing 
 that he must either execute a conveyance for the lots, of 
 be subjected to the expense and inconvenience of attend- 
 ing at Annapolis, as Andrew had falsely and deceitfully 
 told him he must do, and being likewise without money, 
 and his mother then ill in bed, and depending on him for 
 assistance and support, he was induced to execute, and 
 did, on the 7th of February 1791, execute a conveyance to 
 JBettlt for the lots before mentioned^ for the trifling consi-
 
 ( A>I> IN Tin: coruT or APPEALS 
 
 1809. tlrr.iii'ni of tftrff poitnds ten rm rent mon>-y, 
 
 s all (hat he rtvrned. ami whit-li he v.onld by no i 
 
 iri.epti'd aj> a consideration for the lots, but for the 
 iiii|.oMtion practised on Mm a> before mentioned. That 
 after the e\ecution of the deed, to wit. in 170;>, licttll dud. 
 
 <! of the lots, and inM-srate, leauii^ a widow <v 
 
 iiildrcn, to whom, bv law, his real e^iate equally de- 
 
 i'.-d, to xv it, &.c. the defendants. Prayer, that the 
 ron\ryance may be set aside and rendcicd null and void, 
 \i . and fiir further and other relief 
 
 The anwera of the defendants, (one of them facing an 
 infant answered by his guardian for t'.iat piirpor-e appohit- 
 
 (Imitting certain facts set forth in the bill, and their 
 ignorance of others -tated, that Tlicmas Hamilton, claim- 
 ing to be heir at law of Cluifha E. Hamilton, con\ 
 that part of lot Xn. 51. which was devised to (.'hut 
 
 n, to Ju'ui 6V?, wlio afterward* conveyed the *.tm^ 
 /. the ancestor of the defendants. 
 
 iiie death of T/r.mum Hamilton, his executor .7 
 Hamilton, offered to sell to Rrookc Tttull the lots which is 
 the object of the bill of complaint, but on examination it 
 'ounJ that there was a defect in the title, and it u::s 
 agreed between JnJteic Hamilton and BculL that if a 
 good and complete title could be procured for the lot-, he, 
 Ucull, v. iiiild become the purchaser; whereupon Hinniltiin 
 agreed to procure a title, and obtained the deed mentioned 
 in the bill from the complainant to lhafl, and J'eatl paid 
 to Hamilton for the lots 700 or /SOO. The defendants 
 
 that ttuill ever did in any manner advise, or through 
 false pretences persuade the complainant to convey the 
 
 nor do they believe that .flnJrew Hamilton took any 
 i.ndue means to effect that end. They refer to the con- 
 M-vance, and pray that it may be taken a-, part of their an 
 
 , and Bcatt bein^ a purchaser for a vain Meta- 
 
 \\ithont fraud, they contend, that neither him, nor hi- 1 
 
 . ou^lit to be disturbed in tin-. That the com- 
 
 plainant never did, as they arc informed and 1> 
 
 ;mv claim to the lots either of /trail, in his life-time, 
 ur of his!. !ii.-t death, until the present applicati- 
 
 on; and they are ignorant of any fraud ever having i> -T 
 practised on him. That MIICC the purchase, on the faitli 
 thereof, lirul! mad.- \alu ibiu improve.nent-. & The 
 answer of Andrew I/amillou, also osic of tlie
 
 QF MARYLAND. t 
 
 Siated, among other things material to be noticed, that a3 1805 
 executor of Thomas Hamilton, not knowing of any defect 
 in the title, he advertised the lot or acre of ground, where- 
 on the old warehouse formerly stood, for sale, and on the 
 3d of January 1791, exposed the lot at public sa'e, where 
 there were several bidders, and among others Brooke Be.alt^ 
 and it was fairly struck oITtohim, as the highest bidder, 
 for &25. That after the sale, the title papers were by the 
 defendant put into the hands of Beall, to prepare the con- 
 veyance. That it was discovered by Beall that the will of 
 ^Thomas Hamilton was defective, there not being three 
 witnesses to it, and on that account the legal estate had 
 descended to the complainant, who was the heir at law of 
 William Hamilton. That Bealt refused to pay the pur- 
 chase money until the title of the complainant could be 
 obtained, either to himself directly, or to some person who 
 would convey to him; that Mr. Gantt was consulted as 
 counsel, and he advised the making of a deed to lhu.ll di- 
 rectly from the complainant, as the most proper mode of 
 securing the" title, and a deed was prepared by Mr. Cfimtt t 
 for which the defendant paid him. The defendant afterwards, 
 in February 1791, went to Virginia, where the complainant 
 then resided, and carried with him the deed so prepared^ 
 and a copy of the will of Thomas Hamilton. That the 
 defendant showed to the complainant the copy of the will, 
 explained to him the defect, and informed him, that it 
 having only two witnesses would not authorise the defen- 
 dant to make a title to the purchaser, that the tvill was in- 
 operative as to the land; that Beall had become the pur- 
 chaser, but refused to complete the contract unless the 
 complainant would convey the laud. The defendant then 
 showed the deed, so prepared, to the complainant, and ask- 
 ed him if he would execute it. That the complainant, be- 
 ing fully acquainted with the nature of the will, voluntari- 
 ly, and without any hesitation, agreed to convey his title 
 to the property, and to execute the deed to Beall. That 
 the defendant had also a power of attorney prepared to 
 have the deed properly acknowledged by some person in 
 this statej but the complainant informed the defendant, 
 that he wished to make a visit to his uncle John, who re- 
 sided near Shepherd's town, and Jiltcgany county being on 
 the road, he would, on his way through (hat county, exe- 
 cute and acknowledge the deedj which was accordingly 
 VOL ii 53
 
 CASES IN THE COURT OT APPEALS 
 
 1809 done on the Tth of February 1791. That the complainant 
 and defendant were in company together for several day* 
 after the execution of the deetl, and conversed respecting 
 it, and the complainant expressed himself satisfied with its 
 execution. "When the defendant saw tlie complainant se- 
 veral voars after, he did not express any dis-atUfac tion at 
 having conveyed the land to Dealt. The defendant doniis 
 that he ever told the complainant that the will of Tho 
 Jfamilton was good and valid in law, but on the contrary 
 informed him that it was defective and inoperative to pass 
 land, or give any power or authority to affect the same. He 
 also denies that he ever informed the complainant that he 
 would apply to the governor and council, kr. and denies the 
 other allegations stated in the bill, of fraud, deception, &c. 
 
 Testimony was taken under commissions, and the cause 
 having been argued and submitted, 
 
 H \vsox, Chancellor, (24th September 18030 stated, 
 that whether he shall decide in favour of the complainant, 
 or in favour of the defendants, the case must, to every 
 candid person, appear hard for the loser, and most proba- 
 bly litigation will be continued as far as possible to the 
 great expense, trouble, and anxiety of both parties. 
 
 In various caesof doubt or difficulty, or hardship, the 
 chancellor lias thought proper to recommend a compromise 
 and decree by consent, and experience has convinced him 
 that he is right. He considers this case peculiarly proper 
 for a settlement in that way. He has never had before him a 
 case concerning the merits of which he more doubted, and 
 of the event of which, after his decision, doubts might 
 more reasonably be entertained. 
 
 Acting on principles which have always governed him, 
 and led by those principles to consult the welfare, a* far 
 as his power extends, of every suitor in this court, whose 
 conduct has not, in his opinion, deserved punishment or 
 reprobation, he proposes an adjustment, such as he believe* 
 an intelligent, careful, impartial arbitrator would award. 
 Such as cannot be greatly detrimental to the party, who 
 shall be finally victorious, in case this proposal shall be re- 
 jected, but which, iu such case, will have been beneficial 
 to the other party. 
 
 Let the parties, by writing here filed, consent to .. 
 crec to the following purport, vii.
 
 OF MARYLAND. 
 
 1st. The defendants, heirs of Brooke Beall, shall on or 1809. 
 before the 25th day of March next, pay or bring into this 
 court, to be paid to the complainant, the sum of 800 dol- 
 lars: and in case that sum shall not be so paid, or brought in, 
 the payment thereof, with interest, may be enforced by 
 execution on the persons or property of the defendants. 
 
 2d. The complainant shall execute and acknowledge, 
 according to law, a release to the defendants of all his 
 right, legal or equitable, to the property in question. 
 
 3d. Each party shall bear the proper costs. 
 
 This recommendation of the chancellor was not acceded 
 to, and he then passed the following decree: 
 
 The defendants having rejected the chancellor's recom- 
 mendation, it becomes incumbent on him to determine as 
 a judge, wholly in favour of them, or of the complainant, 
 according to the best of his judgment, and knowledge of 
 the principles of this court, and not, as he wishes he were 
 authorised to do, in the spirit of a fair, impartial, intelli- 
 gent arbitrator. 
 
 Under the special circumstances of the case he may not 
 speak so largely as it is customary foi him to speak in de- 
 crees of importance. But he will say thus far As he is 
 not satisfied that a fraud was perpetrated, or even if it was, 
 that Beall) the purchaser, was a contriver, or privy to, or 
 partaker of it; as the complainant suffered many years to 
 elapsf before he filed his bill; as the property hath since 
 been greatly improved and changed, and hath devolved on 
 several representatives,- as the argument from convenience 
 ought always to have influence, he cannot think the com- 
 plainant entitled to relict. 
 
 It is true that some of those reasons would, if standing 
 alone, be entitled to little or no weight, but when united 
 th,ey appear to form a sufficient and firm prop or support 
 fur the defendants. 
 
 Were indeed the chancellor fully convinced from the 
 evidence, vhat, before the complainant executed the deed, 
 there were, between him and Andrew Hamilton^ transac- 
 tions which this court must consider as constituting a fraud 
 rm the part of Andrew, the circumstances herein stated as 
 reasons would not induce the chancellor to refuse relief. 
 Consider too, the rule respecting the refutation of an an- 
 wer examine the answer and evidence in this cause to- 
 gether compare the testimouv ou each side- consider, as
 
 1-20 CASES IN Till r OF AiMT.AT.S 
 
 1809. we must do. when witnesses differ, who>- testimony 
 most probable am-, tit r tnen if the complainant*- \\it- 
 etics arc correct, and their testimony is to prevail -.<.. 
 the answer and >ppo>: ony, how far i-_!" 
 
 ghoulil protect a man in this court. If one party shall toll 
 the other a roost improbable story to intimidate For in- 
 stance, if A tells B, a plain common fanner or planter ia 
 J'iriz'tttiu, '*if you will nit execute this deed, the t,< .\uimr 
 of Mart/fond^ in virtue of a law of his state, will -.end for 
 and compel you." If the farmer be not half an ideot or a 
 lunatic, or in a state of mental imbecility, it must be diffi- 
 cult for even three \vitm--vs against a defendant 1 
 to satisfy the mind that A's declaration has induced the 
 farmer to make the conveyance. The testimony of lim-e 
 vho swear to Andrew Hamilton's declarations musi be un- 
 satisfactory; their memories must be defective, 
 may be demanded, wherefore did they staud by and per- 
 mit the falsehood to have its efl'ect? 
 
 If ignorance were by this court protected to that extent, 
 Low many fair contracts might be set aside! l^miam < in- 
 deed, real or pretended, might in many instances have the. 
 advantage of knowledge and wisdom. In the chancellor's 
 opinion, on a view and comparison of all the proofs, there 
 has not in this case been that stizpcslio fa/si, aut siivj/rrs- 
 sio ten, vhich can authorise him to grant the relief pray- 
 ed by the grantor in tho deed against fair purc!ia>f:.>, who 
 have long been in possession of, and iwp-oved flu- | ropT- 
 tv, before a demand of any kind made of or against them. 
 flecrfed, that the bill be dismisstil, but as the complainant 
 had probable grounds for instituting the suit, it i> di- 
 ed without costs. From this decree the complainant ap- 
 pealed to this court. 
 
 The cause was arjrued before CnAsr, t h. J. POLK, 
 BUCHANAN, NICHOLSON, and KAHI.E, J. 
 
 Johnson. (Attorney General,) and Jlfagnuler, for the 
 Appellant, cited 1 Fonll. I SP. I /'DIC. c</t C"iil. 1-41), M4. 
 Urmlerick v*. limit rick. \ P. H'm-i. C 
 1.56. Evans r- ' : r,r<>. (!i,>. Cn. 15C. / 
 
 dtn vs. Walker's Ex'r. 6>-c. (tinic 5R5.; 2 Jlbl. 
 Jinnincs rs. Muvrr. <2 J'trn. ('<(>[>. li/iitLtn.- <*> 
 
 I tiro. Part. Ca. C44: and J&t v*. Martin, 4 T.L
 
 OF MARYLAND. 
 
 ..Martin and Shaqff^ for the Appellees, cited 1 fonbl. 1809. 
 115, 189, (note,) 384; and Fasley vs. Freeman, 3 7'. 7?. 51. 
 
 UF.CHEK AVKlKtlliU. 
 
 BEIMCKF.R vs. SMITH. JUNE 
 
 SMITH vs. RKIKICKF.R. 
 
 CROSS APPEALS from a decree of tlic Court of Chan- bi T- J^" j 
 eery. The complainant, (Xeinickcr,) filed his bill of com- ^i;;; 1 ^,^'; 
 plaint against the defendant, (Smith,) stilting that Thomas Z.^s.^',"^ 
 Franklin, being seized of a lot of ground in Baltimore, ^SeS^SS^^ 
 agreed to sell all his interest therein to the complainant for wiUi GH^'tn^i 
 the consideration of 112 10 0, which agreement was re- hiln di "oStTiit- 
 
 .... i i i i- ' teriil rtien-iii, on 
 
 duced to writ me:, and is evidenced, by the bond ol con. the pimm-m to 
 
 fnr\\ (if them of 
 
 veyance exmbited, dated the 20th of March 1794. 1 hat ssoo; n<t ti.e , n <.- 
 the consideration money has been fully paid. The bill j><sesi<ui ot the 
 
 ' ' lot w< drliTyred 
 
 further stated, that Benjamin Franklin, brother of Tnomat.** . R< * >1 ,''. a '"I 
 
 J * lb <lrmth pi I y\\\ 
 
 afterwards claiming to be possessed of an interest in the fJ^J^ ")".." 
 premises, agreed to transfer and convey the same, absolute- f ho ?r i^r, w"a 
 Jy, to the complainant, for the consideration of gSOO, which 2'^ ISfiSXi 
 agreement was reduced into writing, and is evidenced by a'^erf^aiuj?^ 
 the b,ond of conveyance, exhibited, dated the 29th of July r ^'in' imi<" 
 1794. That the consideration money has been fully paid; w, l r"TimosT"- 
 and the complainant, ever since the execution of the two of" mtoxlea&m! 
 
 .'---. . . , , That thr lot v.as 
 
 bonds of conve} r ance, has been in the quiet, secure, and cmx^cuci to be 
 
 rrt ' sold i>y them wh<-n 
 
 unmolested eniovment or the premises. That Tnomas&nQ stme of in. 
 
 toxicatiop. <>c 
 
 Benjamin Frar>Jc!hi are both since dead, and that Sarah v -'"-n ''"> " pr o 
 
 incapable of tnu>) 
 
 Smith* the defendant, is seized and possessed of the in- ait ".'s |> " s ' ius v t 
 
 a | > r ire RTeaflJ m 
 
 Iieritiince and legal estate iu the premises, by right of de- ll^'J.^ 1 "^^ 
 scent, and as licire:s at law. That the complainant has ^ >nve *^^ | JJj 
 frequently applied to her for a deed of conveyance of the Ji','"',-^,',!,.,"! 'J,^ 
 premises, which she has refused to execute, and has in- or u' Fein's wmnt 
 stituted actions of ejectment for (he recovery (f the pctases- r'pnrot^h^'im'i^ 
 
 f ,( ji .- r- r r oility.it <ni('!it not 
 
 sion of the premises. J'raycr lor a specific perhununce of H.- n,i:,rc,-d ; 
 the agreements, and a deed of conveyance of the premises, iiv to, or perimt 
 
 ' " S to t-ik<' nr MM 
 
 and for an injunction, &:c. The answer of Iho defendant jy> -\* 'i,r,u.-,.'.' ( t 
 stated, that her brother. Juries Franklin, was in his lifetime i<>i (' (.-round. 
 
 - lur ix- 
 
 ccn- 
 
 seized and possessed, and died seized and possessed, a. < i < 1 <i-.\c the 
 
 -I.!,T 'Ji.in |>id by 
 
 mon^st other real estate, of the lot of "-round mentioned in ilin - l " B F 
 
 A tei:::::' T ccia- 
 
 the bill, on the 31st of December 1793, intestate, leaving a ""; <> u ,{"^ ) ,';,' 
 sister, (the. defendant,) and (\yo broth ers, Thomas and Ben- p 1 ^*; .,,'^jj U( ^ 
 in, before named, and which two bruthers, and the defen- J",^ " 'ihVw- 
 , on the death of James, became, under the act to direct e^^',, hHd * a
 
 ( ^SES IN THK COrilT OF APPEALS 
 
 180P. . entitled equally to all the real estate of \\ Inch 
 
 Jumes died seized, su.bje.ct to the pro\iM<nis <..rvl rc>-u(a- 
 tiuiis mentioned in that act. That both her said bi 
 
 in the habits of drinking strong liquor to treat ex- 
 ami from t!|e time of tiie ileatU of their brother 
 James, being freed from all restraint, and having entirely 
 in ihvir |>O\UT the means of gratification, and being, it is 
 bHieyed, encouraged, in their excesses by pe.rvmx \\ho 
 wished to obtain |draJ)taget over them, they were almost 
 constantly in a slate of intoxication; and that vhcn not 
 actually drunk, they vric scarce Qver, if ever, free from 
 the eflfcts of the excesses to which they were addicted, 
 and the mental imbecility arising therefrom. That their 
 extreme ion<!ni'bs for strong liquor, and their anxiety to 
 obtain it, al*o rendered them open to imposition from any 
 PC.TMMI who would furnish them with money by which they 
 could procure their gratification, however exorbitant the 
 ierms; and whatever contract they, or either of them, 
 wight have entered into for the sale of lands, it is believ- 
 c. 1 . originated either from their being in a state of intoxi- 
 cation at the time, or from the solicitude of acquiring mo- 
 ney for their excesses, as they had no occasion to disnc.-se 
 of any of their rer.l estate to supply any necessary want. 
 That both her brothers died within eight months after the 
 death of their brother James, and within eleven !:. 
 each otht-r, having fallen victims to thtir constant in- 
 
 .M'UN. That /,'<?;/'</?//</< died on the 10th, and Thomas 
 >n the ()th of August, ir i .'4. That the lot of ground 
 
 >.ned in the bill, is situate in a very valuable and, 
 improving part of Jlttltimorc town, and contains an acre 
 fi!" -round, and is believed, by the best judges, to be worth 
 ijpwa: That Jiiiuickcr pietends to have tho 
 
 hotidn of ri!im-yanc<' v*'t forth, but they are not admitted 
 to ha\c- been e\rrtcd by 1 i bi'otl.cj >., tir cither of them, 
 or that they rtu-ivid the alleged consideration; but if the 
 bonds wen- ( \ctuted, s-he lias no doubt but they \\er- 
 Miird l-y Ivr lr.':'!.i:^ v>lun in a state of intoxication, or 
 when tho > ; >le of trai.sactiiig busim\s. 
 
 thut :. U of their ignorance of thq 
 
 v;ilue of i (or the monoy ;ili<-^nl to ha\e beci\ 
 
 F0f 'ho projn-tt\ i not njiial to the sixth part .f the 
 valur Mnuts that she hag refund to con- 
 
 >Ty the lot to Iiciulcktr t Lctuu^c biie vas untl is uf oj'i-
 
 OS MARYLAND. 423 
 
 ftion, that she is not bound in law or equity to convey the 
 same. That she is willing;, and has ottered to pay to hi in. 
 any sum of money which her brother Thomas hath actually 
 received from him. 
 
 Testimony was taken and returned under a commission. 
 Vhich issued, and the case was argued before, arid submit- 
 ted to, the chancellor. 
 
 HANSON, Chancellor. The complainant applies for the 
 performance of a contract made by a brother of the defend- 
 ant, who has refused on the ground of the complainant's 
 having taken advantage of a man whom habitual intoxica- 
 tion had rendered unfit to manage his own affairs, and an 
 easy prey to an artful designing man. 
 
 The chancellor conceives that the privileges of drunken- 
 ness 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 
 \viiich he makes shall be binding, Unless he, or those who 
 come after him, shall think it eligible to abide by the bar- 
 gain? If this were the case, a drunkard would have ad- 
 vantages far superior to those which are enjoyed by the 
 most prudent^ shrewd, sagacious man. For instance, se- 
 ven 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 chan- 
 cery, he says "it is well known that I was every day drunk, 
 and therefore the contract ought not to stand." The chan- 
 cellor, as he has already said, considers the privilege to be 
 well ascertained, and sufficiently extensive. If a man evi- 
 dently 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 dav. but notwith- 
 standing possessed of reason, and the power of reflection, 
 determines, with all the deliberation he is capable of, to sell 
 bis 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 tile 
 lumr of intoxication; if afterwards he professes himself sa- 
 tisfied with the bargain, and assigns a good reason for it 
 when the bargain is clear, explicit and certain when it
 
 IN THE COURT Of APPEALS 
 
 1809. ha" been fully executed on the other side the chancellor 
 v ~-^ cannot think, tha*. under such circumstances tins court 
 ou^ht not to enforce i. II? has described the ca 
 him with respect to Thoinas 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 heir-, one un- 
 divided third part of the lot or ground mentioned in the 
 bill, and the bonds from Thomaa and Benjamin Fn. 
 deceased, to the complainant. 
 
 As to the contractor Btnjamin Franklin* the chancellor 
 is of opinion, that on account of the satisfactory proof 
 liis imbecility, it oujjht not to be enforced by this court; 
 but that the money to him paid by the complainant ought 
 lo be restored. Dtcreed al>o, that the defendant pay to 
 the complainant the sum of S-300, which was, it appear?, 
 paid by the complainant to Benjamin Frnnklin* decea- 
 and that upon her executing and acknowledging the deed; 
 eby directed, and (taxing to the complainant, or bring- 
 ing; into this court, to be paid to him, the sum of 300* 
 the injunction in (hi- cause i.?ued be dissolved; and that the 
 complainant be enjoined to, and shall deliver to her, m 
 permit her to take or enjoy, two undivided third parts of 
 the lot or ground before mentioned. From tnis decree 
 both the complainant and defendant appealed^* this 
 
 The cause was argued before CHASE, Ch. J/Poi.K, 
 C-HAXAN, Nimoi.sox, and EAKLE, J. by 
 
 Keif and T. Buchanan, for Reinicker; and by 
 Martin and Harper, for Smith. 
 
 The counsel for Smith contended, that the contracts 
 ought not to be decreed to be specifically performed, be- 
 cause of ilninkrnness* and the inadequacy, of pricf. As 
 to the firsr, they cited 2 Pou\ on Cont. 2-26, 227. O- 
 ritzrji/, .1 I\ /T/,jv. 1.11, 'nolt A.) Cory vk. 
 Corn* \ J'es. 19. 1 Fonbl. 68. And as to the latter, they 
 
 /. nn Coni. ::-. 153, K>\ J:L . 227; 
 
 ' 'i rfn-ltl r.t. - /''. 1 .">.>. Pope vs. Itont.i, 7 
 
 Bro. Par! / '/'..: wry, 2 /'. 1> 
 
 Cole vs. Gibbon*, 3 P. Hm*. 293. BuIJwin vs. 
 
 >nl. 1 H'tf*. 2-!". JHlorncu <:> \ylfrfin< I 
 
 ' ./ vs. 11'ootl, 2 f'ernon, 63*, and
 
 OF MARYLAND. 
 
 lips vs. T?MC/C, 1 Fera0rt,227. They also contended, that 1809 
 a tenant in common could not convey less than his whole 
 interest iti the whole estate which descends to him u'mter 
 the act t> 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, 
 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. on Cont. 152 to 
 159, 144 to 145, 220, 228. 1 Pow. on Cont. 30. Sugdon 
 1,67. They also argued, that it could not be said that a te- 
 nant, 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 
 sol! 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 con- 
 tract. He could not designate a particular part of the lot 
 or tract of land, but he might sell his interest in any parti- 
 cular 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 pUced 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. 
 
 THE COURT affirmed that part of the decree 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 chan- 
 cery or this court; and they decreed, that on her executing 
 the deed directed, the injunction should be dissolved, and 
 that Reinickei 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. 
 
 DEGREE RBTfiRSED IN PART. 
 V01. II, S4
 
 425 -ES IN THH COURT OF APPEAL* 
 
 BURK. vs. THE STATE. 
 
 to Jranhington county court. An indictment, 
 Containing two count-, one for a rape committed nn the 
 body of Catharine Maria Browner^ and the other for ;m 
 "! assau ^ w ' ltn ""tent to commit a rape, on the same perM.ii, 
 uas f UN( l > n tne county court of Freddr'nk against the 
 J"hdd Pontiff in error, at February term 1809, and removed, (in 
 Hi anil affidavit, by the transmission of a tran- 
 iJeT. script of the record to ll'axhinzton county court. The 
 ^ u n m! > Vh"Vu'n? nature of the indictment, and the facts upon which the 
 
 may b" w >m and .. c ' . , iv .1 
 
 eh.npd npoiicMK- questions ot law were raised, sufficiently appear in the 
 
 ol f' ic f>untnljr. . . c ,, .. . . ... 
 
 to the rrciu.km <>r opinion ot the court below, delivered by 
 
 the oth-r J 
 
 n Bt* CHAVA??, Ch. J. This ca3e now stands on a motion in 
 Sn H ri l nai r piJnwi l ',t arrest ^ ju lament. The indictment contains two counts 
 cnl'pu.rT'chaii'on." tne ^ rst charging a rape, and tlie other an assault with 
 
 gt';5?**" 1 to commit a P e - 
 
 niomn^o^i'hiSi The prisoner was arraigned upon the whole indictment, 
 h?n "c':eTcn *."c am' pleaded generally, not guilty. The attorney for the 
 CTwk " state then elected to proceed against him on \\svfirsl count 
 
 At to the man- .1 . , .. . ~ 
 
 n.-rof awrdini;'n the intlictmcnt, and the jury were accordingly sworn, 
 
 venire for mm i i i i / 
 
 rnomng uieimi-n and charged upon the first count alone, and fonnu mm 
 
 in criminal catei, .. _. . 
 
 capital. guilty ot the oftcnce therein alles^d. particularly confining 
 
 At to Ihr join- , . 
 
 d-r uruffdicet in their verdict, bv the expressions of it, to the first cot'nt; 
 
 rnminiu cam. 
 
 ndthc i..ii,der..fon the second cowit no verdict was given. 
 
 caut <-l aetiout 
 
 Fifteen of the jurors returned were peremptorily chal- 
 lenged by the prisoner when put upon his trial, and nine 
 sworn, which exhausted the original pannel. (>n motion 
 of the attorney for the state, an order to the sherifl'to sum- 
 mon three talesmen, was atCarded by the court, two ot 
 whom were sworn, and one challenged. An order to sum- 
 mon one talesman was then awarded on the application of 
 the attorney for the state, and the person summoned, 
 sworn, which made up the legal number of twelve sworn 
 on the j'iry. 
 
 There arc three questions for the consideration of the 
 court, growing out of the indictment and proceedings there- 
 on, and the reasons assigned in arrest of jmlguirnt. 
 
 /7n/. Whether the indictment, containing two counts, 
 one charging a/e/ow/, and the other a miv.letneanor, is ra- 
 dically bad? 
 
 Secondly . Whether, after the party had pleaded gf ne- 
 rally to the indictment, the jury were legally sworn and
 
 charged upon one of the counts only to the exclusion of the 1809 
 other. And 
 
 Thirdly. Whether, when nine jurors were sworn, and 
 the rest of the original punnel exhausted by peremptory 
 challenges, the court could legally award an order to the 
 sheriff to summon only three talesmen; and again, when 
 eleven were sworn, to summon but one? 
 
 In the examination of these questions, the order in which 
 they are stated will be inverted; and the manner of supply- 
 ing the jurors by talesmen, be first considered. 
 
 It cannot be doubted, that in this state, a tales de circum~ 
 stantibus may be awarded in capital cases; such is the 
 uniform practipe, and such are the provisions of the statute 
 of 35 Henry VIII. ch. 6. But it is contended that as 
 three were wanted in the first instance to supply the defi- 
 ciency, and, as the prisoner, (having challenged only fifteen,) 
 was entitled to five more peremptory challenges, a less 
 number than eight cpuld not be applied for by the prose- 
 cut3r, or awarded by the court. And the samp ground is 
 taken against the second order. But this idea is unsup- 
 ported by authority. Several authorities have indeed been 
 cited and relied on in aid of the objection made to the 
 Dumber of talesmeri awarded, which, when examined, only 
 go to show, that courts may, if they please, to prevent the 
 delay that might be occasioned by the defendant's chal- 
 lenges, award a greater number than was on the original 
 pannelj and this is admitted. But no case has been cited, 
 or authority referred to, which denies the power of courts 
 to award o.nly so many talesn\en, as would, with those 
 sworn, make up the number of twelve; or in support of the 
 position, that a less number cannot be awarded than would 
 be sufficient to make up the deficiency, after the defen- 
 dant has gone through with his challenges; or in other 
 words, that as the number deficient, and the remaining pe- 
 remptory challenges to, which the party was entitled, 
 amounted together to eight, not less than eight could le- 
 gally have been awarded in the first instance. Nor is the 
 idea strengthened by the reason of the ca,se, for if so ma- 
 ny must always be awarded as will leave a sufficient num- 
 ber to supply the deficiency, after the defendant has com- 
 pleted his challenges, it would be impossible to ascertain 
 the number proper to be summoned; for besides peremp- 
 tory challenges, a prUgaer is entitled to challenges for
 
 CASES IN THE COURT OF AITK A 1 > 
 
 1809. cause, without number. And it is not to supply deficien- 
 cies occasioned by peremptory ihalliinires only, that tales- 
 men are awarded: but deficit ncies, octa-iom-d in rriniin:il 
 trials by any other cause, mu>t be made up by ta'.esmeii a> iu 
 civil cases, in which peremptory challenges are not allowed* 
 Thorn is no principle laid down more broadly in the 
 books, than that the award of talesmen must be repeated 
 until the legal number of twelve is completed, the subse- 
 quent talcs being always for a less number than the for- 
 mer; and this precludes the idea that the award must al- 
 ways, in the first instance, be of so many as to leave 
 enough to supply the deficiency, after the party has com- 
 pleted his challenges; for in that case, there could never 
 be a second tales ordered, [tis true that in capital cases, 
 courts may, if they please, award an order to the s-l.eiiir 
 to summon more than the precise number necessary to r-Mp- 
 ply the deficiency, though there is no obligation on them 
 to do so; and if, in this case, the prisoner, or his connst-l, 
 had requested a greater number to be gammoned, he would 
 have been gratified. But an order for three only in the 
 first instance, and one in the second, was prayed by the 
 attorney for the state, ami each prayer and order an 
 ced in at the time by the counsel for the accused. The 
 second tales was for a less number than the first, and each 
 was for the precise number necessary, with those sworn, 
 to make up the legal number of twelve, and in strictm --.s 
 of law, that is all that is required in such case; and as fur 
 as this court are informed, is in strict conformity with the 
 practice throughout the state. 
 
 The second qvcsticn, "whether, afier the prisoner had 
 pleaded generally to the indictment, the jury were legally 
 sworn and charged on one of the counts onlyr" is fully re- 
 solved in Young vs The. Aing, S T. Ji. ICG; in which it is 
 eaid, "that if aq indictment contains several counts for se- 
 parate ofl'ences, the court may quash it befotc the party 
 has pleaded, or the jury are charged; but if it should not 
 be discovered until after the defendant has pleaded, or the 
 jury are charged, the judge may put the prosecutor to elect 
 on which charge he will proceed." 
 
 That case goes much farther than the present, for in 
 that it is laid down, that not only after the party hus plead- 
 ed generally to the indictment, but after the jury ;nc 
 awoin upon the whole issue, for they are uc>er
 
 OF MARYLAND. 429 
 
 fore they are sworn, the court may makefile prosecutor J809. 
 elect on which count he will proceed, and in this case 
 though the attorney for the state did not elect to proceed 
 on the first count alone, until after the prisoner had plead- 
 ed, vet it was done before the jury were either charged or 
 sworn; and if the position taken in the case referred to is 
 tenable, the proceedings on that part of the case before the 
 court are correct. 
 
 The next and only question remaining to be considered, 
 is, "whether the indictment containing two counts, one 
 charging a. felony and the other a misdemeanor ', is substan- 
 tially vicious," as is contended for on the part of the pri- 
 son e,r? 
 
 The exception iaken to the indictment is attempted to 
 be supported by assimilating the proceedings in criminal 
 trials, to those in civil cases, which is not correct to the 
 extent contended for. 
 
 If entire damages be assessed on a declaration contain- 
 ing several counts, any one of which is bad, it is error; 
 but there is no principle better established, than that if 
 a general verdict of guilty to be found on an indictment 
 containing several counts, it is sufficient, if one is good, 
 although all the rest are bud. 
 
 11 is objected, that a felony and a misdemeanor can no 
 tnore be charged in the same indictment than assumpsit 
 and tort can be joined in the same declaration. Jjut the 
 reasons given in the books, why certain different causes of 
 action may not be joined in the same declaration are, that 
 the process is different; that they do not admit of the same 
 general plea, and are not followed by the same judgment. 
 And here again the analogy, contended for between the 
 proceedings in criminal and civil cases, does not hold; for 
 it has been long settled; that an indictment may charge 
 several felonies of different grades, and requiring different; 
 legal judgments, as oUences clergyable, and offences not 
 clergyable, such as murder and manslaughter, bur-larv 
 and larceny, &c. and that the party may be acquitted of 
 one of the offences, charged, and convicted ,f tiie other, 
 nnd receive judgment accordingly; and if so, there is no 
 substantial reason why a rape, and an assault with intent 
 ty commit a rape, may not be charged in the same indict- 
 ment; for, leaving the act of 1TD3 out of consideration, the 
 legal judgments required on two such counts are not roore 
 dissimilar, than on two counts, one charging burglary and
 
 430 CAM> IN Tin: UUKT OF APPEAL- 
 
 1809. the other larceny, &c. And it is laid down in lirwn T 
 
 > ton, 319, and others, that whenever the same plea mav bp 
 
 The suie 
 
 pleadeil, anil the same judgment gi\en on two count*, 
 
 tln-\ m;\ U- joined in the same declaration. 
 
 Now apply that rule to the indictment in this case, and 
 the objection fall-; for in this state the le^al pnxc-s on 
 each of the offences charged is the same; thry admit of th 
 same general plea, and by the act of assembly 1793, ch. 
 57, sect. 10, the same jmlgnu-iu ma\ le pronounced. 
 
 It has been further urged, that a felony and a misdemeanor 
 cannot be laid in the same indictment, because they re 
 quire difi'erent modes of trial; on one charge the party ac- 
 cused having a right of challenge, and on the other not; 
 and also being subject to arraignment on one, and not on, 
 the other. But neither the arraigning a man on an in- 
 dictment for a misdemeanor, nor indulging him in a pe 
 remptory challenge, is error after verdict. 
 
 That objection, therefore, fails in reason, a* it relates 
 to the misdemeanor, nor does it appear to have any more 
 \ui-ht as it applies to the charge of felony; for the party 
 accused having no right to peremptory challenges on the 
 count for misdemeanor, could not, by the addition of that 
 count, be in any manner prejudiced in his challenges, or 
 otherwise, on the count for felony, beiore the act of 1802, 
 ch. GO. 
 
 It is true, that in this state, under that act of assembly, 
 a party, indicted for a misdemeanor, is entitled to a pan- 
 n 1 of twenty jurors, fi.ur of whcm he may strike out: but 
 that afioids no stronger argument against the uniting 
 a felony ai'il a misdemeanor in the same indictment, than 
 the right which every one, charged with a capital oflei.re, 
 lias to twenty peremptory challenges, does to the joining 
 i;il capita! felonies in the same indictment] and it is a 
 nettled principle, that diflereiit/e/ow't* may be charged in 
 the same indictment, and though they might confound the 
 prisoner in his deiVnce, or prejudice him in his challenges; 
 for he might have reason to object to a juryman's trying 
 him on one of the counts, whom he would wish to.be sworn 
 mi the others; yet it is no objection to the indictment after 
 verdict. Why then should the addition of a count for a 
 misdemeanor vitiate an indictment charging a IVlonyr But 
 to prevent pitrjudicu to prisoners in their challenges,
 
 OF MARYLAND. 431 
 
 and confusion in their defence, courts may, and perhaps 1809. 
 ought, before the jury are charged, to quash indictments 
 containing separate and distinct felonies, or to make the 
 prosecutor elect on which count he will proceed; so for the 
 same reason, and particularly since the act of 1802, r.h. 
 69, there would be a propriety iti pursuing the same rule 
 in relation to indictments charging a felony and misde- 
 meanor. 
 
 If, as it is alleged, no case of an indictment charging a 
 felony and a misdemeanor, is to be found in the, books, it af- 
 fords no argument against the correctness of such an in- 
 dictment; the case may never have arisen* or the princi- 
 ple may never have been questioned, and therefore not 
 reported. 
 
 And if this is a question of first impression, it must be 
 decided on principles of analogy to other cases; and thus 
 tested, the indictment does not appear to be defective; not 
 on account of the modes of trial incases of felony and 
 misdemeanor being different, for it is no objection, after 
 verdict, that a traverser on an indictment for a misdemea- 
 nor was arraigned, or indulged with a peremptory chal- 
 lenge. 
 
 In 2 East's Crown Law, 1G23 and 1029, 2 Hawkins's 
 Plens of the Crown, 625, and Kelyng's Reports, 29, it is 
 laid down a? settled law, that if the special circumstances 
 of the case be set forth in an indictment for an offence laid 
 as felony, and the defendant foand guilty generally, and 
 afterwards the court should be of opinion that the fact 
 does not amount to felony, but only to a trespass, judg- 
 ment may be given as for a trespass only. 
 
 In such a case, the party accused would be arraigned, 
 and have his challenge, and yet the oftence contained in 
 the indictment only a trespass or misdemeanor, though 
 charged as a felony; and llie principles so established, may 
 perhaps be applied with force to the present question in 
 all its parts; for if a misdemeanor may be charged as a fe- 
 lony, and punished as a misdemeanor, why may net a fe- 
 lony and a misdemear*-;' be laid in the same indictment, 
 and the party be acquitted of the felonv, and found guilty 
 of the misdemeanor, or e converse? Not on account of 
 the party being liable to be prejudiced in his challenges, 
 or the jury perplexed in the application of the testimony; 
 for the same objection might be urged, and with more
 
 433 CA-K-INTIF " 0!> API'KVLS 
 
 1809. force, to an indictment di.ir-iii'j; separate and distinct fe- 
 lonies; and jet such indictments aiv held to ho good, and 
 not because the different counts would require, different 
 judgqpnty I >r different fr/onics may be laid in the 
 same indictment, which are differently punished, and re- 
 quire different legal judgments, such a* innnier and man- 
 slaughter, b.urglary, and larceny, &c. Moreover, an indict- 
 ment charging a raj>e, and an assault with an intent to 
 commit a rape, is lew objectionable here than in England) 
 for in this state, under the act of 1793, cli, 57, *. 10, a 
 conviction of cither offence may be followed by the r-aiuc: 
 legal judgment. 
 
 In this particular case the two offences charged in the 
 indictment are connected together, and the misdemeanor 
 merged in the felony. No evidence could have been a 
 sible on one count, that M-as not applicable to (be other, 
 \vhich Uinls it against the objection,. that the jury might 
 be confused in tin- application of testimony of a ditliMvnt 
 nature, and goes to show the compatibility of tiie two 
 countsj or, if the. mi>demeaiu.r is to be considered as a 
 separate and distinct offence, committed at auiil'eirnt 
 time, and not a constituent part of the felony charged, it 
 does not alter the case. 
 
 The great strictness observed in criminal prosecutions, 
 grows out of the benevolent principle, that every prisoner 
 should have a fair and impartial trial; and this the prisoner 
 in the present case has had. 
 
 The attorney for the state, as he had a right to do, aban- 
 ! the second count, ;ind elected to proceed on the 
 first, upon which the jury were accordingly sworn and 
 charged. There was no application to quash the indictment, 
 nor any objection made at the trial, to the form of proceed- 
 ing; but the prisoner chose to take his chance before the 
 jury on the charge of felony, to which the trial was exclu- 
 sively confined. lie was not, nor could he, in any man- 
 ner ha\e been prejudiced by the addition of the second 
 count, which bein^ abandoned before the jury were. 
 iiiM])f!;i'i\f a-> if tin- , ip.rul jury had found 
 the indictment a true bill as to the first count, and indnr- 
 >nd; whu-h they might have done, 
 
 and the indictment have been good as to the count f.nn.I 
 a true bill. He had, under this mode of proceeding 
 every privilege and advantage which be could have had if
 
 OF MARYLAND. 433 
 
 the indictment had contained only the count on which he 1809. 
 was tried; aud now to arrest the judgment would be a 
 perversion of justice. 
 
 Upon the whole, in the opinion of the court, the reasons 
 assigned in arrest of judgment are unsupported. 
 
 Judgme.nl was entered on the verdict, sentencing the 
 prisoner to be hung, &c. Sentence of death was pro- 
 nounced by the chief judge; and afterwards the prisoner 
 removed the indictment and proceedings to this court by 
 a writ of error. 
 
 The cause was argued before CHASE, Ch. J. POLK, NI- 
 CHOLSON, and KAULE, J. 
 
 Martin, Taney, and Latvrenrc, for the Plaintiff in error, 
 raised tlie same objections which were urged in the court 
 below on the motion in arrest of judgment. 
 
 On the first objection they contended, that felony and 
 misdemeanor were different offences, and ought not to be 
 found in the same indictment. That under those counts, 
 different modes of trial were required. The prisoner must 
 be arraigned in the first, and not in the other; he must be 
 present at the trial of one, and he need not be at the trial 
 of the other. Judgment might be passed against him on 
 one, when he was not present: but in the other, it could not 
 be done except he was present, [n the one, he might 
 challenge peremptorily to the number of 20 jurors; but in 
 the other, he had no such right. In the last, he might strike 
 out four from the pannel of jurors, and so might the attor- 
 ney for the state; but in the former, the attorney for the 
 state could not challenge or strike out from the pannel. 
 That the judgments were different; in one, the life of the 
 party might be in jeopardy: in the other, it would not be. 
 That the benefit of clergy might be demanded in the one, 
 and not in the other. They cited 4 B!k. Com. 216, 375. 
 2 tide's P. C. 1 73. 2 Hawk. 39, ch. 25, s. 59. Crown C. 
 C. 111. Brown vs. Dickson, 1 T. R. 276, The King vs. 
 Roberts, Curthew, 26. Rogers vs. Cook, Ihid 235 Young 
 vs. The. King, 3 T. R. 98, per Lord Kenyan, on the fourth 
 objection. 1 Bac. .#&. tit. Actions in General, (C.) Dal&ton 
 vs.Janson, 1 Ld. Raym. 58. S. C. 1 Salk. 10. Court. n y 
 vs. Collet, 1 Lti Raym. 272. Howard vs. /iankes, 2 Burr. 
 1114. Gilb. Hist. C. P. 6. The King vs. 
 VOL u 55 

 
 CASES IN THE COURT OF APPEALS 
 
 1809 I rcnfris, 366. Mast vs. Goodxon, 5 9TU*. 5.'>4. Dickon 
 vs. Clifton, ZfHls. 319. Su-ithin vs. Jlncent, Ibid 227. 
 Jtage vs. firoimrrlf, 3 /,,'. 99. 2 //flirt, r/i. 25, s46, 97. /? 
 15. Jlilke*, 4 Burr. 5527. /?e.r cs. Pewtress, 2 *V/ra. 1026. 
 Hanlw. 205. TV Ai/?? rs. Straiten, Doitgl. 240, 241. 
 7?cr t-J. Heldhouse, Cowp. S-25. The King vs. ll'hcat- 
 fcy, 1 II. Blk. Rep. 275. The King vs. Mention, 2 7x/. 
 fiaym. 1572. S. C. 2 .Sfro. 870. Rex vs Benfield, 2 Burf. 
 980,984. The King vs. Sitllcy, 1 Siderf. 168. 2 //HI/*. 
 cA. 25, . 62. 77 5/a/e t'. Itinsfgold, (iti the general court, 
 April term, 1792.) Hex vs. Cross, 1 d. Itaym. 711. 2 
 ///f, 172. Rex vs. Jf'estbeer, 2 S/rcr. 1133. LeuchC.L. 
 15. 2 af C. L. 1023, 1028, 1031. 4 Blk. Com. 221. 
 Martyn Page's case, Cro. Car. 532. As to the right and na- 
 ture of the benefit of clergy, they cited 2 Hawk. ch. 33, s 20, 
 23,25,112,114,115, 121, 128, 129, 132. Stat. 1 dic. 
 VI. cA. 14, . 5. 5/ftf. 5 .^nw, cA. 6. 4 //<TJ. VII, ch. 15. 
 2//arr. n/. 52. Cwldington vs. tfilkins. Hob. 67, 81. 
 Searlevs. William* 3>td 294. 5 5/a/e TVia/Jt, 168. /caci 
 C. /,. 360. 2 7/i/-^. eft. 56, s. 1, 10, 14. //a/f, 220, 251 j 
 and 2 Hawk. ch. 47, *. 6. 
 
 On the second objection they contended, that the counsel 
 for the state could not elect on what count he would pro- 
 secute; but he must prosecute on the case before the court. 
 They cited 4 Blk. Com. 339, 575. 2 hoick. 59, c/i. 25, s f 
 97. Rochel vs. Sledle, Hardres* Rep. \ 66. 1 Blk. Com. 
 142. Rosse's case, 3 Leon. 83. 2 flotf. .#&. 722, />/. 19. 
 Graves vs. Morleg, 3 Lev. 55. 1 Tnsf. 227. Hooper vs. 
 Shepherd, 2 5Sfra. 1089. ReXvs.Pewiress, Ibid 1026. Gi/- 
 dart vs. Rogers, (in the general court, October term, 1786.) 
 Young vs. The King, 3 T. R. 106, per Bitllr.r, J. 2 /far/*. 
 C//.27, s. 92. Fifz.M. tit. Discontinuance, 14, 35. Tiro. 
 ./?&. tit. Discontinuance of Process, 62, pi. 55. Clerke v. 
 Clerkc, Cro. EHz. 622. Sampson vs. Tothil, ft al 1 Siderf. 
 S25. 2 //</&. rh. 38, *. 3. CoA T Ent. 57, 372, 579, 
 S81, 585, 387, 390. Kant. 43, 412. Rex vs. Hoy re, 4 
 Purr. 2084, 2085. Tremtnne, 287. TV King vs. Dow- 
 Kn, 5 T. R. 51 1. Fo^r'* case, 9 Coke, 63. 2 Hawk. cti. 
 47, i. 5, 6, 8, 9, 1 1, 14; and Fulmerston va. Steward, Plow. 
 J09. 
 On the third objection, as to the tale*, they cited / 
 
 fjni tarn vs. , 1 Lev. 223. The Queen vs. Banks, C 
 
 Mod. 246. Gree rs. Sharp, liii 265. 2 //ouvt ch. 41.
 
 OF MARYLAND. 
 
 A. 12. DenlawiPs case, 10 Cd&e, 105. /?ro. Jib. tit. Oc/o 
 TWes, 6, 7, 8, 11, 15, 16, 19. Vin. Ab. tit. Trial, 521. 
 2 /AmJt. c/i. 41, s. 12, 13. 2 Hale, 266. JTw/erf Staff* 
 us. Burr, 1 .ewrr'.s TVt'a/, 420. God. 204. 77ie SVa/e *. 
 Qrndorff', (in the general court, October term, 1783.) //u/- 
 /on us. //MM, Cro. Eliz. 849, 850. 7"Ae Queen vs. The In- 
 habitants of Stretford, 2 Ld. Raum. 1170. TJie Kingvs* 
 W heat ley, 1 JK /fl/ . /?ep. 275. 2 /fawA:. c/t. 27, s. 105. 
 Ibidch. 25, s, 97; and Rex vs. Withes, 4 Burr. 2527. 
 
 Johnson, (Attorney General,) contra, on the first objec- 
 tion, cited Young vs. The King, 3 T. R. 98. Holmes^ 
 Case, Cro. Car, 376. S. C. Sir ffm. /OHM, 351. The 
 ing vs. Joiner, Kelyng's Rep. 29. The act of 1795, 
 cA. 57, s. 10. J?rown vs. Dickson, 1 7". jff. 266. Dickon 
 vs. Clifton, 2 mis. 319. 2 a**' C. Z. 1023, 1029j 
 and 2 Hawk. 525. 
 
 On the second objection Rex vs. Benfieldy 2 .Bwrr. 980; 
 and Young vs. The King, 3 T. R. 106. 
 
 On the third objection The Slat. 35 Hen. VIII. cA. 8. 
 Denbawd's case, 10 Co&e, 103, The act of 1798, ch. 94.; 
 imd 4 ^/A, Com. 354. 
 
 JUDGMENT AFFIRMED. 
 
 435 
 
 1809 
 
 NORFOLK'S Ex'r. de son torf, vs. GANTT. 
 
 JUNE 
 
 ERROR to Calvert County Court. An action of debt 
 was brought on a single bill, by the defendant in error, Lt^Tb^&S 
 against James Norfolk in his life-time, to which he ap- ?,jue J "o n an"t^J 
 peared and pleaded payment. His death was afterwards (thereVin'gno'S 
 suggested, and a summons issued for the plaintiff in error, min^iato" r of*h 
 
 i i i r j ii t - deceat-dO to ap- 
 
 83 executor e on ww, to appear and defend the action, pevtoradMUM 
 who beiuj summoned, appeared, and afterwards confessed whre an w 
 
 cutor </c *on fort, 
 
 the action, and that the debt demanded was due to the blill <?: 'mmoned f 
 
 applied to an - 
 
 defendant in error, together with a sum as damage! and " ol1 , f eut 
 
 brogrht against 
 
 costs. Upon which an auditor was appointed- to ascertain 
 
 the sum for which judgment should be rendered, accor- 
 
 ding to the act of 1798, ch. 101, sub ch. 8, s. 9. The , 
 
 auditor repotted, that it did not appear by the records ftf^SSS? 1 */*^ 
 
 the orphans court of the county that any administration m'nt Mll .houid ud 
 
 had been granted on the estate of the deceased, so that lie ^nl'^d "fuie 
 
 fSCU, ffC HVfUf- 
 
 dinc: to the ace of 17Qn, en. 101, tub ch. 8, s, 9, T).i$ ippointment of auditor was afterward- stricken 
 out by the county court, and a .juilRiiuTit wa rendered on the confession above mcnuoned, for the 
 debt aud costs, de bnnis tettatorii, si non debonit prtfrtit a>lt> cost Lnor U-UJg brought, tUe iudj- 
 raeui AJ reverted bj \k* court ol' 
 
 ombe death ot 
 
 " nd 
 
 the BC
 
 CASK- IN Tin: CWRT OK APPEALS 
 
 1809. could not say what a--rt-. if any, were in the hands of the 
 plainlifi' in error. '1 lie record >tatr-, that tlie auditor, 
 vho IKK! hern appointed, on refusing to ait, v;<- nderrd 
 to be strut- k out, and anothn- j-ii.n i.tnl in his 
 
 place. After which, on motion of the defendant in -nor, 
 it was ordered by the court, that the appointment of audi- 
 tor so made be struck out, and on his prayr that il;e 
 court would "enter judgment on the confession" of the 
 plaintiff in error, "so as aforesaid made in the plra afi>i'- 
 said," the court entered judgment against the plaintiff in 
 error, for t!>e debt and damages and costs, tit lonix f<*(u- 
 toris, si non de bonis projiriis as to the costs. To re\> i-c 
 which judgment the present writ of error was brought. 
 
 The caue was argued at June term 1808, before 
 TILGHMAN, PotK, and Ht'PHANAN, J. andwa> rc.u^iiecl at 
 the present term before CHASE, Ch. J. POLK, Bcc i< > 
 NICHOLSON, and EARLK, J. 
 
 JCi/, and Johnson (Attorney General,) for the plaintiff 
 in error, contended that there was no pihity in law or 
 otherwise between an executor de son tort, and the t\> 
 cd, and he could not regularly be summoned and made a 
 party. The act of 1785, ch. 80, does not justify it. An 
 executor dc son tort can only be resorted to by an original 
 action against him. There can be no judgment again->t 
 him but of assets proved to have come to his hands. The 
 act of 1798, ch. 101, directing the appointment of an au- 
 ditor, does not take in the case of an executor de son t<>rt. 
 It only relates to cases where letters testamentary or of 
 administration have legitimately i&eued. It i* by no : 
 clear, that confession of judgment by an executor de son 
 tori would be correct, if he admitted aet>, provided the 
 action was not originally brought against him. The o.iut 
 could not give judgment for a portion of the assets n. 
 such an executor. Here the court entered judgment lor 
 the. debt and damages conliv-t <;. am! c - : -, to !> le\i<d c.f 
 the goods of the deceased, if the executor df son tori had 
 so much in his hands; and if not, then the costs to be le- 
 vied of the goods of the executor. This is not a 
 and correct judgment. A judgment against a vn.n|ul 
 executor ahould be df boniv propnis for the amount of asr 
 ftets charged and proved in his huod-, Imt theie (an !. no 
 judgment against him of a-sds yuunUo UL<.. 

 
 OF MARYLAND. 43? 
 
 against a rightful executor. Upon the death of James 1809. 
 Aor/b#>-, instead of making the executor tic son tort a par- 
 ty, he should have been proceeded against by a new ac- 
 tion. Under the act of 1785, ch. 80. an executor lie son 
 tort, not being a representative of the deceased, there 
 could be no continuity of the proceedings against him; and 
 that act never meant to embrace a wrong doer; it intended 
 to provide only for the legal party being made plaintiff or 
 defendant in place of the deceased. The making an exe- 
 cutor dc son tori a party, may be likened to the case of an 
 ejectment where the defendant dies, and a person enter* 
 into possession who has no right; and it will not be con- 
 tended that such person could be made a party in the 
 place of the deceased defendant? There may be a right- 
 ful and wrongful executor of the same person. Does the 
 act of assembly contemplate that the wrongful executor 
 may be made a party, and not the proper executor? Sup- 
 pose, after the death of James Norfolk, three persons had 
 each taken a horse, the property of the deceased, could 
 all three be brought into court, and be made defendants in 
 the place of the deceased? Though each might take a 
 horse, yet they were not bound for each other. There 
 can be no hardship in this case, as the plaintiff below 
 might have administered on the estate of the deceased, if 
 there was no legal administration. The judgment is ma- 
 nifestly erroneous; and if the executor dc sun tort could 
 be made a party under the act of 1785, the judgment 
 should have been tie bonis propriis, and not quundo accide- 
 rint. The court below entered the judgment, although 
 the executor de son tort (lid not confess that he had assets. 
 He only confessed the sum due, and did not admit that h'ei 
 had assets. The act of 1798, ch. 101, was made a pre- 
 text for the appointment of an auditor, although that act 
 \vas made to protect rightful executors, so that the assets 
 might be apportioned. The court nevertheless struck out 
 their appointment of an auditor, and entered judgment 
 upon the confession. An executor de son tort is not af- 
 fected by the act of 1785, ch. 80; if he is, he is equally 
 affected by the act of 1798, ch. 101. If he could be le- 
 gally made a party, the judgment could not be entered 
 against him, but in pursuance of the act of 1798. The 
 proceedings being clearly erroneous, the judgment must 
 fce reversed..
 
 438 CAST s IN Tin: COURT OF APPEALS 
 
 1S09 Afagtiider, for the Defendant in error. It has been con* 
 
 tended that the ji'djiment of the court below must be re- 
 vri-i-d. because it i- u-ain-t an executor de son tort, who 
 i 1 i- -aid cannot be made a paiiy, under the act of ITS. 1 ;, 
 c't. 8,'). to tiie original action. The convitnts* of this 
 idea \\iil be (pirstioned; but to obtam a reversal of the 
 ; t-nt, something more is necessary to be shown. U 
 is necessary to prove, not only that the action cannot be 
 continued against an executor de son tori, but also that he 
 can r.vail him** !!" of the objection in a court of error, and. 
 after i-.e i\. -- d judgment in the court below. 
 
 1. Before the act of 1785, the death of either party 
 abated the suit. Upon the death of the defendant, the pla'm- 
 lift' was obliged to proceed tie nov. The inconvenience 
 of this v.as felt, and to remedy it, was the evident intnit 
 nf tl-.e legislature in making the act of 1785, ch. 80. \\iicic 
 it is declared that no action shall abate by the death of 
 ihe defendant, but the executor, administrator, or "other 
 proper person to defend," shall be made a party. If an 
 executor dt son tort cannot be made a party defendant to 
 the original action, what meaning will be affixed to these 
 vords of the law, * 'other proper person to defend?" The 
 words unquestionably include executors de son tort, who 
 ure responsible to the plaintiff on account of the asseN in 
 their hamls, and who are proper persons to defend the 
 original action under the law of 1785; because, before the 
 passage of that law they were liable in an original action. 
 The intention of the legislature unquestionably was, that 
 the old suit should be continued against aHV person against 
 whom a new action could be instituted; and that executorf 
 de son tort may be made parties to the original suit, is evi- 
 dent, not only from the intention of the legislature, but 
 the words of the Inw. Indeed, these words, "other proper 
 j.i i -nil to defend," seem to have been introduced e.r abun- 
 dant i cnnfrla, and to pi event the possibility of an abate* 
 ment of the oripMi! action, if ilx-rc can be found ai.\ 
 son. who, ha\in^ in his liamU a--ct> of the original defen- 
 dant. i>. U> the amount of them, responsible to the ciedi- 
 EM-I y person wim takes possession of the assets of 
 a deceased dcbtur, is, in respect to creditors, the execu- 
 tor: and vtheihT tlu> poession of tbcra has been rightful I j 
 f,r vii'ii^fiilly acquired, are n .1- -\<-( utors to the 
 
 aaiount of those a>;ct*, to the creditors. It k no defence
 
 OF MARYLAND. 439 
 
 by ^ roan who has seized upon the fund for payment of 1809 
 debts due from a deceased person in actions by creditors, 
 that his possession of them is not legal. 'I he creditors are 
 not bound to enquire whether the possession is rightful or 
 wrongful. The plaintiff in error would not have been al- 
 lowed, in the court below, to avail himself of such a de- 
 fence. It is true that an executor de son tort cannot be 
 made a plaintiff in the original action; because he has no 
 right to demand the debt, and before the act of 1785, he 
 could not have brought an action for the recovery of it. 
 Under the act of 1785, any person can be made a party 
 defendant against whom the plaintiff in the action could 
 have proceeded in an original suit, to be brought before the 
 passage of that act. It is asked, how is a plaintiff to pro- 
 ceed if there be several executors de son tort can he make 
 only one of them, or is he at liberty to make all of them, 
 parties to the original suit? An answer to this is not ne- 
 cessary. It is sufficient to say, that he may make as many 
 of them parties to the original suit as he could to a second 
 action to be brought by him upon the abatement oF the first. 
 But if this be not a sound construction of the act of as- 
 sembly, yet it remains to be enquired, 
 
 2. Whether the plaintiff in error is not too late with his 
 objection? It may be true that an executor de son tort is 
 not a proper person to defend the original action, and there- 
 fore is not to be made a party to it, yet it is apprehended, 
 that this defence ought to have been made in the court be- 
 low; and having been waived there, cannot be relied upon 
 In eiror. Leave is given to the plaintiff to make a pioper 
 party, and because he suggests to the court that the plain- 
 tiff" in error was a proper person to defend the suit, a sum' 
 jnons is directed to him to appear and show cause why the 
 suit should not be continued against him. It was not in- 
 cumbent upon the plaintiff below to show for what reason 
 the suit might be continued against him in what relation 
 Tie stood to the debtor, or to the fund; being suggested t 
 be a proper person to be made a party to the suit, he is 
 required to appear and state his objections to a judgment 
 being recovered against him. If there were not in his hamls 
 assets sufficient to discharge the plaintiff's claim in due 
 course of administration, this might be shown; and if plead- 
 ed, the plaintiff could only recover against him upon proof 
 of assets. But if this is not pleaded, the judgment would
 
 440 CASES IN THR O AP1M1ALS 
 
 1809 of courne be for the amount of the phiutiflTs cla; ; B ' 
 
 if ant a | : - >M to In- nu:le a party to the -nit, this 
 
 to hare been stated ti the court, either at ihe time 
 of Ins appe ir.in. (. or by plea, and whether he was or was 
 Dot, be.iug; in some iiMM-un- ; question of Tart, would have 
 heen examined, where alone it could be r\aini:ied, in the 
 court below. Instead, however, of making this dc!' 
 or of showing anv cau*e why he should not be made a 
 
 . he h.ts i-iintesed judgment, and thereby admits liim- 
 self to have been a proper pei t \\i>;>:n tlie original 
 
 uit was to be continued. Having, by hi-, confession of 
 judgment, acknowledged himself to be the proper p 
 to defend tlie suit, the olijpction, now .so strenuou>!y ur^eit 
 agaiust an affirmance of the judgment, cannot be heard in 
 this court. It is true, indeed, that in the summons which 
 wa> issued a-.^iinst him, and whioh the clerk has uiu 
 snrilv coj/ied into tli- reronl, he in stvlnl i- ci utor (If .ton 
 tort. Whether this proceeded from any kmnvli'if^. 
 
 'I by the clerk thai I> !((> te-taineniary had not been 
 granted to him, or from his ignorance that a rightful e\'v-utor 
 and an executor ilc son tori were difierent characters, does 
 not appear, and is wholly ummport;nt. The appellation 
 given to him in the summons cannot be resorted to in pi oof 
 of his beiii 1 ' an executor <!? .ion f(,rf. The summons does 
 
 O 
 
 Hot belong to the record it makes no part of the. pK .. 
 and was not necessary to have been is.sued. Any incor- 
 rectness in it cannot prejudice the plaintifl'below. It mi^hi 
 have been directed to any other persnn might have stated 
 John Xokd as the proper person to appear to the suit; ami 
 might have mistatcd the names of the ordinal pai tie-, and 
 the nature of the action; yet if the plaimili' in error chose 
 to appear to the suit, and in place of shou inj$ cause b*;- 
 iow why judgment should not be given against him, to 
 confess judgment, he cannot after.vanU come into a court 
 of error and claim a reversal of tli-.- judgment, because of 
 r.nv f.-.Ne description, or blunders of the clerk in the 
 summons. If A bring an action a^;ainr>t IJ, and his 
 v tit state him to be executor of C, yet lie m.iv afterwards 
 : liuv, him for a debt due from himself, and after 
 n judgment by confession, or upon verdict, in the court be- 
 low, it would be strange it in error his counsel urged rh;t 
 he was sued as executor for a claim due from him self. 
 "Whether the plumlilVm error was a rightful IT wrongful
 
 OF MARYLAND. 
 
 etncutor, is a question which cannot be examined here/ 1809. 
 It is a question of fact. The counsel for the plaintiff in 
 error contend that this court is competent to decide it, 
 and they produce for their testimony the subpena, which 
 they say is conclusive evidence of the fact. The plaintill" 
 in error is precluded by his confession of judgment in the 
 court below from denying himself to have been the proper 
 person to be mado a party to the action, and in this court 
 must be considered a* the executor of the original defend- 
 ant. 
 
 5. Objection has been made to the form in which the 
 judgment is stated. It seems, however, to be such a judg- 
 ment as must be recovered against an executor. The 
 plaintiff in error made no defence in the court below. He 
 could not gainsay the debt, and therefore the sum due to 
 the plaintiff below is first ascertained. While a provision 
 of the act of 1798, ch. 101, was in force, he was not bound 
 to plead plenc adminisiruvit, and refusing to admit a suf* 
 fiency of assets, the court were obliged to appoint an audi- 
 tor. Thus far unquestionably the -proceedings were regu- 
 lar, and the record is correct. But the appointment of 
 auditor is afterwards stricken out and a judgment is enter- 
 ed, which the record states to be given upon the "confes- 
 sion of the defendant in the plea aforesaid." Herein, all 
 the error lies. It has been said that the confession did 
 Hot wan-ant the judgment that the confession was, that 
 he could not gainsay the debt, and the court, by giving 
 judgment "upon his confession in the plea aforesaid,'* 
 have undertaken to say that he had assets, without any 
 proof before them; for his confession was a denial of it. 
 This however seems to be quarrelling with forms. The 
 record, if correctly understood, will certainly show that 
 the judgment was properly entered. The pica aforesai </, 
 fhowever strange an expression it may be, as here intro- 
 duced,) relates to the reference to an auditor to ascertain 
 assets. Plene administravit, though not pleaded, be- 
 came unnecessary by the act of 1798, c/t 101, is supposed 
 to be the defendant's plea, and is certainly the only plea 
 on which he ever pretended to rely. The confession spo- 
 'ken of is a confession with respect to that plea, and of a 
 sufficiency of assets. It is a confession made bv the de- 
 fendant after the appointment of an auditor, and in cense- 
 queuce of which the appointment was stricken out, and, 
 VOL. is. 56
 
 413 CASES IK THE COURT OF APPEALS 
 
 1809 judgment entered according to it. In a fe\v words, the 
 defendant at first admitted the debt to be due, but would 
 not confess assets. In consequence the sum was at 
 tuined, but an auditor was appointed to ascertain the 
 amount uf a*>ets. The party afterwards confesses there; 
 were assets sufficient, and in confcequence the appointment 
 of auditor was stricken out, and upon liis own confession 
 of a sufficiency of assets in his hands to discharge the debt, 
 the court entered against him the judgment, which in all 
 such cases is given. It is said to have been given upon 
 motion of the plaintiff. But this is the form of enter- 
 ing all judgments by confession. The whole proceeding 
 are regular, unless, because an auditor had once been ap- 
 pointed to ascertain the amount of assets, it was not in the 
 power of the parties to take the subject out of his htnd, 
 and ascertain, by their own confession, the fact which it 
 was the sole purpose by the reference to determine. The 
 forms of record* alight indeed be more correctly and ele- 
 
 O " 
 
 gantly expressed, but these are forms to which we arc 
 roost accustomed, and have in them sense enough to pre- 
 vent the reversal of ajudgment, to which the consent uf 
 the party was had in the court below. 
 
 THE COVHT considered that the summons for the exe- 
 cutor de ton tort to appear and defend the action, 
 regularly, and that the executor de son tori could be made 
 a party to the action; but that the entry of the judgment 
 erroneous. 
 
 JUDGMENT KfcVERSED. 
 
 JUNE. BEAHD vs. H 
 
 in nreutiniti APPEAL from R(dtimore County Courh Action on the 
 
 Corn TUMI.. n to 
 
 take t*tiuioi>r, ii case against a common carrier for negligence, &.c. The 
 
 it n..t urevuary . 
 
 tht thrr,,,,,,,,,.,,. general issue pleaded. A communion by consent issued 
 
 burn lionlil mp- 
 
 pumi clerk t London, for the purpose of obtaining testimony, and \\;i-> 
 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, nam- 
 ed in the commission, appointed a clerk, liut the count/
 
 OF MARYLAND. 443 
 
 court, [//. Riilgchii Ch. J.] overruled the objection. The I80& 
 defendant excented. Verdict and judgment for the plain- ^""^ * 
 
 > Hammond 
 
 lift', and the defendant appealed, to this court. Hi^n 
 
 The cause was argued before CHASK, Ch. J. POLK, 
 BUCHANA.V, NICHOLSON, and EAHLK, J. by 
 
 W. Dorset/ 1 for the Appellant; and by 
 rice t for the Appellee. 
 
 JUDGMENT AFFIRMED. 
 
 HAMMOND vs. HIGGINS, et ux. JUN T B. 
 
 APPEAL from Frederick County Court. This was anac- in n action of 
 
 ilowera judgment 
 
 tarn of Dower^ to which the defendant, (now appellant,) ., ^^mlt's 
 appeared, and confessed judgment, which was entered in rto ^ v ." r f! 1 " 1 ^- '^Jg 
 favour of the demandants, (now appellees,) for the dower ^V^ * 
 of the wife, of the third part of two tracts of land called, ^%^ r raa i"i<i 
 &c. to hold to them in severalty by metes and bounds; and " '*^ tu t JS 
 on the prayer of the demandants, a writ of habere facias * ["^n^t 
 seisinam was awarded and issued, to cause them to have mag^TiTU'stT. 
 full seizin of the third part of the lands, tc. which writ jJJdgnJST*** ^ 
 
 i- i i i .1 j ,i i i i I 'Unnaecs and coU 
 
 accordingly issued, and the dower in the lands were laid was reversed 
 
 oft' and assigned by a jury, and delivered by the sheriff 
 
 to the demandants, and on return thereof being made to. 
 
 the county court, the demandants prayed judgment* "as 
 
 well for their damages sustained by occasion of the detea- 
 
 iion of the dower of the said S. in the lands aforesaid, as 
 
 also for their costs and charges by them laid out and ex- 
 
 pended," &c. The county court entered judgment in fa- 
 
 vour of the demandants against the defendant, for "-one 
 
 penny current money, for their damages sustained by oc- 
 
 casion of the detention of the dower aforesaid, as also nine- 
 
 ty five pounds and one penny curreot money,, adjudged by 
 
 the court to tlse demandants for their costs and charges by 
 
 them laid out and expended," &c. From which judgment 
 
 the defendant appealed to this court. 
 
 The cause was argued before CHASE,, Ch. J. POLS, 
 BUCHANAN, NICHOLSON, and EARLE, J. 
 
 ^ for the Appellant, contended that the whole of 
 the proceedings, aftef the judgment for dowof and the
 
 CASES IN TIIK cor'.rr OF ATMT.AI.- 
 
 awarding the writ of Iinbe re far ins stisinnm was erroiic- 
 (ni. No judgment lor iliioi:m<-s and costs could be 
 entered after the term at which the ; 
 was rendered. The form of the writ of seizin \\as er- 
 roneous. It should go to (he sheriff' only, and hi* is to he 
 aided by no person unless it is necessai \ to lay out the 
 land, when he can call on the surveyor of the com,;;. ; 
 run it out. Precedents of wri's of habcre facias mi 
 may be found in Cliffs Eiif. 298. Itasl. Enl 255. 1 Kick. 
 C. P. 2%; and 2 Harr. Ent. 697. The proj.rr return 
 by the sheriff' should be, "I have delivered seizin by metes 
 and bounds," &.c. Ratl. Enl. 355. The f<-rm of tl-.i- v.iit 
 used in the case before the court, ig that of a writ of par- 
 tition, and nut of hubere facias xeisinam. Tbe judgment 
 in partition is interlocutory, but in dower it is final. Her* 
 the judgment being by confession, there could be no da- 
 m.-fz-'s and costs even if the application had been made 
 therefor at the proper term. 
 
 Shaft/" and Tamy, for the Appellees. 
 
 THE COURT considered (hat the judgment of the county 
 court, as to the damages and cu*ts recovered, \\as errone- 
 ous. 
 
 JUDGMENT RKVF.RSED, 
 
 JuVE. TOMLINSON VS. 
 
 intro.pij?.r. ERROR to JHIcgcmij County- Court. An action of tres- 
 t^.v h 'i t'lri-'w 1 . pass quarc clausum fregit, was brought by (he ddVmlant 
 BMlr* 1 ^ 1 "/'.'.'! jn error, against the plaintiff' in error, for bre;ikir.^ and -n- 
 "* ''in-i u .i.<i tering the close of the de^ndant in error, culled Ti 
 
 tin trart i-:i'lerf T 
 
 ,iih 'h- 
 " 
 
 . . 
 
 ,iih 'h-b;- ^olhin, lying in JUlgaty county. Ihe detendant 
 
 c^i ' ht?lx"ii in the court below pleaded, 1. Not Gvi/ry, and 2. Juytificuti- 
 in>h !' <rjci ;j that /ocws tn ana was a close ol laiid called Grute'n A 
 
 hi- pttirtiff U.ciit I 
 
 :! ,,...; Camp, and the freehold of ,/y/w trains, and that the dtfen- 
 
 ml In- .M> t<HH( * 
 
 K?U '".'e ^','<i "n.'.t ( ' ant as "'** servant, and by his license, entered, &.c. ge- 
 .'"irn'i-'hy oeraJ replication, and issues were joined. There v n- 
 Thr '[i. l< r. n i! l u n ni other replications to the last plea, whith were dumurred 
 V"""''"'' ' * to but as they were not noticed by the court, they are 
 
 il. ., 
 
 h- ' i ' i No. S3S1 . ffeW, thui It wm ucl mcrir fi.rfcimio |
 
 OF MARYLAND. 445 
 
 omitted. A warrant of rcsurvey issued, and the lands call- 1609. 
 ed Trouble for Nothing and Grains Sugar Camp, and v ~~" v ~ ' 
 
 J Tomliniou 
 
 the place v\l,ere the trespass was alleged to have been com- 
 
 tnitted, as also lots No. 5550 and No. 5551, were located 
 on the plots returned. The defendant took defence for 
 Grate's Sugar Camp, as including Trouble for Nothing, 
 to which there was no counterlocation made on the plots. 
 
 1. At the trial the defendant read in evidence a grant 
 of the land called Grate's Sugar Camp, to John Mains, on. 
 the 1st of March 1802, "beginning at the end of the second 
 Jine of lot No. 5351, and running thence N 27 E 46 per- 
 ches, S 26 W 90 perches, S 62 W 50 perches, thence by 
 a straight line to the beginning," c. The plaintiff then 
 prayed the opinion of the court, and their direction to the 
 jury, that it is incumbent upon the defendant to produce 
 patents of lots No. 3550 and 3551, to prove the beginning 
 and location of Grate's Sugar Camp to be correct; to which 
 direction and opinion being given, the defendant objected, 
 and prayed the court to direct the jury, that as the plain- 
 lift' has located the lots No. 3350 and 5551, and Grate's 
 Sugar Camp, upon the plots, including the place where 
 the trespass is Located as committed, it is not necessary 
 for the defendant to produce patents for lots No. 3350 and 
 S551, to prove the location of those lots, and the beginning 
 of Grate's Sugar Camp, Kut the county court, [Clagett 
 Ch. JJ refused to give the direction prayed by the defen- 
 dant; and gave the direction prayed by the plain ti if. The 
 defendant exc.epted. 
 
 2. The defendant then prayed the opinion of (he court, 
 and their direction to the jury, that it is incumbent on the 
 plaintiff, in order to support his action, to prove a title to 
 Trouble for Nothing, or to prove an actual possession by 
 ioclosures located upon the plots "Which opinion and di- 
 rection the court refused to give. The defendant exempted. 
 Verdict and judgment for the plaintiff, and the defendant 
 brought a writ of error to this court. 
 
 The cause was argued at the last June term before PoLfy 
 BUCHANAN, NICHOLSON, and GAXTT, J. 
 
 Johnxon, (Attorney General) and Perry, for the Plain- 
 lift 1 ' in error, cited Dofkerytt Afaynanl, 1 Han. <V Zjtlien, 
 209. Jarred vs ft'cut, J Hurr. $ Johns. 501. 
 
 T, JJuckunan argued for the Defendant in error. 
 
 Curia, adv. wit.
 
 CA.-:> IN niKOM RT OF APIT AI.s 
 
 THF. CouHT, at thi* term, disagreed wib <he court below 
 in the opinion c\pi--r.l in UK- fir at bill of exception 
 concurred with them io that expressed in the atcimd bill 
 of exceptions. 
 
 JL'IKiMKNT REVERSED, AND PROCKPENDO 
 
 JrvK. HAMMOND vs SAPH - i ->s. 
 
 wHft>rm!iH AppEAf. from the Court of Chancery. The bill of the 
 !!. '^".''i-,.'.'.'!! complainant, (now appellee,) filed on the 3d of September 
 X\oj!h-. !i',liM 18UC, slated, that in the year 1796 he purchased of the 
 ei", I-.M 'i defendant, (now appellant.) a inilt-ncnL in Sinnc-.ii- 
 
 i.a.-tel Ui, , . ' 
 
 .i.-. IM..C <i county, at and lor . 100 money paid down at the time, 
 
 i ' ill 
 
 e i <-"/r< 7 , in and obtained possession: and not doubting but that a clear 
 
 tfcr i--.uru) of 
 
 f^r^t. ii title could IK- iven to him bv the defendant, he imi 
 
 Htf tunin hrniik J 
 
 ;I) A ( the property, and expended in impro\ements \ 20. That 
 * '! ."findiii" aftei \vards that the defendant had no ti^lu to the 
 
 i'-< 
 
 ^u'Xn 11 """! 1 ' r// . l a "^ ne applie<l to him to repay the money emended, and 
 main von.i c/- to rt> f un j t |, a j w hicli he had received; which tle defendant 
 
 JftCmtn; , "I H* 
 
 A?tLVth'l-roi'K ', refused to do; but again practising another ileceplion and 
 MMrltl^iMMm iiupo.-ilion, he agreed to sell and convey to the complainant* 
 
 el A'm/j/rVv, a . r i i i i i 
 
 fanned ii .-.m v,r- in coiisiderat ion of the premises, and the money paid and 
 vn?t'y of .lot T*' expended I'm- and on the iiiill scut, 800 acres of land 
 
 y, wiMcii ate in lluurlion county, in the state of Kentucky, and ac- 
 t,Tr"' ii.viu.,:. cordinuh executed a deed therefor, daled the 10th of Fe- 
 
 i w rouo- 
 
 u.-.i ijruary ITl'O, in which the land i described 4 'as all that i.art 
 
 .- 
 
 (larke an J ." 
 
 \!^ nui Till ' i,, ' a Uact ol l' ai '' :c ' w ' IM *> contained within the metes and 
 ll'.'i"'' j s"r,;. c 'i"h'.7 t>iids of a tract of laud, containing in the whole OLU 
 J^'J 1 ;.' .--res, bi^inning for the said part at the beginning trees 
 
 ; il.e \\!iole tract, and running" <^-c. describing the part by 
 - and bounds, 'Situate, lying and being, in the state of 
 ' ' U A'r/'Jutl.;/, in the county of ttuv.rbon^ and on the inu'm, 
 br: r, containing b()(J acres," &c. Th;U the 
 
 complainant made preparation, and Uid muo>e to the state 
 of AYn/f'fA-J/, ami went in >e:irch of the land in Bovrbon 
 nity, nnd a-'cordin^ to the description contained in the 
 decil, hut t. iiis 'jrcat surprise no such land was there ta 
 he foui. iiad any kind ot il.iim 
 
 > title; t!:at he cais-fd '. ; .. tt> be examined, and 
 
 the result \\ur, tlmt tlic vompluiuuut owued uu laud in that
 
 OF MAHYLAND. 417 
 
 county. That he called on the defendant, ami informed 1800 
 him of the premises, and requested him to refund the sum 
 of 280, the consideration of the purchase of the land, and 
 to make him compensation for the loss of time, &c; but the 
 defendant refused to do either. Prayer, that the mo- 
 ney be decreed to be repaid, and for further relief, &c. 
 The answer of the defendant denied that he had no title 
 to the mill-seat. That at the instance and request of the 
 complainant, he consented to give him his right in 800 
 acres of land in Kentutky, for the mill seat and improve- 
 ments, the complainant alleging that the lands the defendant 
 was to give him his right in, were good in quality, and that 
 J. D, his brother-in-law then in Ksniii-ky knew the lands, 
 and had informed him of their quality. The defendant 
 showed his title in the lands to the complainant, being pa- 
 tented to Richard Ridgely, esquire, on the 2:3d of Novem- 
 ber 1T90, and conveyed to the defendant by deed dated 
 the 3d of November 1793, and duly recorded, &c. That 
 the patent for the land was granted before the adoption of 
 Kentucky as a state in the union; and when the warrants 
 were granted for the land, for which the patent issned, the 
 land lay in fflrginia; and in Bourbon county. That since 
 that time Kentucky has become a state, and the county of 
 Bourbon has been divided, and two new counties have been 
 erected, called Clarke and Mason counties, and that the 
 land lays in those counties He denies all fraud, &c. The 
 grant for the land, as exhibited, is dated the 3d of No- 
 vember 1700, and was issued by the governor of the state 
 of Virginia to Richard Ridgeh}, and the land is therein 
 described to be a tract or parcel of land containing 61 34, 
 acres, lying and being in the county of Bourbon^ on the 
 main branch of Licking, c. Commissions issued and 
 testimony was taken thereunder. 
 
 HANSON, Chancellor, (June term 1805.) It is evident 
 that the defendant was satisfied the first contract made 
 with the complainant ought by him, as an honest man, to 
 be rescinded} and that the complainant had sustained a 
 grievous disappointment. This is an important considera- 
 tion in the cause. Well then, to do justice to the com- 
 plainant, it was incumbent on the defendant to refund the 
 purchase money, and price of the improvements, with inte- 
 rest. But instead of doiug this, he proposes to coavey a
 
 ( A 3ES IN TIIK COURT OV \rr\: VLS 
 
 1809 Iru^c (ract of land in Btarfortounty, iu /. The 
 
 complainant accepts the oiler, but is ajain disappoint. -.1. 
 It is i- l-a i- that the defendant's hind, if any lie has erf the 
 place or near the place, &c. does not agree with the de- 
 scription. // /a not in /iourbon county. Says the coun- 
 sel there are two descriptions, and if one is answered, it 
 is sufficient. This i.s indeed the rule in so:ne ca-.cs. Il is 
 a rule in favour of grantees. But in a case like the pre- 
 sent, that is to say, with respect to bargainees, the rule is 
 rever^r;}. \Vh:rt! If a imn agrees to procure me ahorse 
 17 hands liijjh, and of a bright bay colour, will it be suffi- 
 cient for him to bring me a horse of a bright bay colour on- 
 ly 15 hands high? It is at my option whether I will take 
 the horse or not. 
 
 The contract appears to be for 800 acres of land in 
 Bourbon county, on the main branch of Licking. Sup- 
 pose then the defendant to have land on Licking but not 
 in Bourbon county, is it conceivable that be i -.vith 
 
 liis contract by conveying this land? Alt! but If" 
 county once contained that land, but on a division of the 
 county, the land constitutes part of J/-vrm county. ! 
 in vain to argue this .vay. Is it necessary to mention the 
 first rules of equity with respect to contracts forbidding 
 all trick, finesse or deception, or even misunderstanding? 
 In short, it appears to the chancellor, that the complainant 
 was in a manner, or might well suppose himself to be, un- 
 der the necessity of making a contract for land, which, in- 
 dependently of the contract for the mill-iieql, he would nei- 
 ther have offered to purchase, nor have purchased, if of- 
 fered: that neither of the parties were acquainted with the 
 thing contracted for, and that the complainant has twice 
 been deceived. In saying this the chancellor means no 
 imputation on the defendant, \vho certainly acted honoura- 
 bly with respect to the first contract, and who probably 
 nas withstood the claim of the complainant, because he has 
 himself been disappointed, &c. To sustain the fair char- 
 acter he has enjoyed during a long life, he can do no betti r 
 than perform the fallowing decree, without dflay DrcrrcJ, 
 that the contract between the complainant and defendant 
 for the sale and purchase of 800 acres of land in the state 
 of Kenti'-'kij, as stated in the bill and answer, be vacated 
 and annulled, and that the deed to the complainant 
 from the defendant, executed iu consequence thereof, dat-
 
 OF MARYLAND; 
 
 6d the 10th of February 1796, and' filed in this cause, he 1809 
 Vacated and annulled, so far as the power of this court ex- h / ~ ** 
 tends and that the complainant, on the defendant's de- v 
 
 Sdpingunt 
 
 mand, shall reconvey the said land to the defendant, irt 
 the same manner as the defendant conveyed to him. Hut 
 this may not be done until the defendant shall brinj in or 
 pay the money as herein after directed. That the defen- 
 dant bring; into this court, to be paid, or that he pay, to the 
 complainant, the sum of 9.80. with interest from the l()th 
 of February 1796; or that on the 10th of February next* 
 he brini; into this court to be paid, of that he pay, to the! 
 complainant, the sum of 43$ 8 6, that being; the amount 
 of the money paid hy the complainant to the defendant, 
 and of the improvements by him made on the mill-scafj 
 c. with interest, &c. That the sum last mentioned, if 
 not paid on the last mentioned dav. or if the principal anil 
 interest be not before discharged, shall carry interest from 
 the last mentioned day. $ut costs are not to be allowed 
 the complainant. From which decree the defendant appeal- 
 ed to this court. 
 
 The cause was argued before POLK, BCCIIAXAN, NI- 
 CHOLSON, and KAULE, J. 
 
 Skari/F, for the Appellant. The land was sold as lying 
 in Rourbon county, in the state of Renfucki/, and is de- 
 scribed by mcten and bounds. The fact is. that the land, 
 at the time it was granted, was situate in Bonrbnn county 
 in the state of i'irpmifi. At the time it was sold a new 
 state had been erected by the name of Kentucky, and from 
 the county of Bourbon two counties had been taken, call- 
 ed Clarke and Mason counties. The defendant's answer 
 alone supplies the proof required by the bill. That taken 
 under the commissions does not make out the plaintiff's 
 case. When speaking of land laying upon the waters of 
 any great river, it does not mean necessarily that the water 
 flowed by the land. The meaning is, that it was at no 
 great distance, or it was the next contiguous water to it. 
 The decree f the chancellor vacates a deed for land in the 
 state of Kentucky. This he had no authority to do. The 
 decree is also incorrect in another particular it should 
 have been, that upon a reconveyance of the land by the 
 complainant to the defendant, then the latter should pay, 
 &c. But the chancellor has annulled the deed, which he 
 vol. u 57
 
 CASES IN THE COURT OF APPEALS 
 
 1809 could not do, and if the money is paid, (lie defendant lot* 
 both the money and the land. But independently of this 
 
 _ I '" i 
 
 objection, the facts staled in the bill have not been proved 
 by the testimony taken in the cae. There has been no 
 evidence whether the land lay in A'cnfitrki/ or not. Nor 
 is there ?my evidence thp.t the complainant railed upon, or 
 gave notice to the defendant that the land wjis not in Ken- 
 tin-ky. But after laying by >ix ye:u>. he now v\i-hes for 
 Ihe money to be refunded. He may have sold the land, 
 or it may hr.ve been sold for the taxes due thereon. A 
 stale, forgotten claim, is discountenanced by the court of 
 chancery. The point of time, when a claim is considered 
 as stale, is affixed to the nature of the transaction. Here 
 the land, in a remote state, was abandoned for six years. 
 and most likely it has been sold to pay taxes. There 
 is no evidence that the land docs not lie as slated in 
 ihe deed. As to where it does lie, i> rasceptibtt of 
 better proof than that produced. The only proof is in the 
 defendant's answer, and that must be taken as proof, and 
 beins; so, there is an end of the case. The land exists ac- 
 cording; to its nttfrtrnl description, as described in the deed; 
 and admitting the whole allegation of the bill of com- 
 plaint, the contract was a valid one. It is not denied but 
 that the defendant had a rijjit to the land; but it is alien J 
 that it does not lie in Bourbon county. This may be as- 
 similated to a story told of an old lady in South Card: 
 vho always supposed she resided in a particular county, 
 but upon running the county lines it was discovered that 
 her residence was in a different county, at which circum- 
 stance she was greatly concerned, for she observed, that 
 8hc had always heard that the county in which her residence 
 was held to be, was a very unhealthy county. The chan- 
 cellor, by his decree, has said, that there is a iliflVrence 
 between grantees and bargainees. It is difficult to ascer- 
 tain the distinction. A deed may be vacated on the ground 
 of fraud, &c. but a mistake in a contract does not vacate 
 it. Relief may be had without its being vacated. If A 
 sells 100 acres of land, and it holds out to contain only 
 50 acres, would the court of chancery vacate the contract? 
 Surely imt: but it would give damages for the deficiency of 
 land. Here there was no fraud alleged. It may be con- 
 sidered as a mistake as to the name of the county in which 
 the laud lay j and if the laud was of less value in one coun-
 
 OF MARYLAND. 45* 
 
 ty than in another, could not relief be given without va- 1809 
 eating the contract? There is no dispute as to the quality ^"v>J 
 or quantity of land. If the complainant had produced y 
 
 proof that the land boing considered as lying in Bourbon 
 county, was the only inducement to the purchase, then it 
 would lay a foundation fur vacating the contract; but no- 
 thing of the kind is alleged, or appears in proof. The land 
 is described as laying op the waters of Licking} and the 
 proof is, that it does lie there. As to the land's lying in 
 this or that county was no inducement to the purchaser, but 
 if it was not in value equal to that intended to be sold, the 
 chancellor ought to have compensated in damages, and not 
 vacated the contract. Before the complainant asked lor 
 equity, he ought to have done equity. He should have re- 
 conveyed the land to the defendant, according to the laws 
 of Kentucky. But he claims both the land and money, 
 9tid the chancellor has so decreed as to give him both land 
 and money. There is some evidence taken as to the value 
 vf the land near to the court-house, and land high upoti 
 Licking. Better proof than that which was taken could 
 have been had by sending a commission to the very place- 
 
 Johnson, (Attorney-General,) for the Appellee. The 
 grant for the land describes it as lying on and crossing 
 Licking, in Bourbon county, in the state of Virginia, and 
 it is dated the 23d of November 1790. The survey was 
 before the division of the state, and the grant was after the 
 division. The act erecting Mason county was on the 5th 
 of November 1788, and the act erecting Clarke county was 
 qn the 9th of December 1792. The land when it wa 
 granted could not lie in the county of Bourbon from the 
 description given of it in the grant, and that given .f the 
 county. Suppose A buys land lying on the Potomac in 
 Frederick county, and it turns out that it lies in Allcgany 
 county on the Potomac, would he be bound by his contract 
 and be compelled to take the land? Suppose indeed it lay 
 in Saint-Mary's on the Potomac, would it be considered as 
 an immaterial circumstance provided it lay upon the Polo- 
 mac, a long extended river? Licking, or arty other riveiy 
 is not so good a description as a county. When this con- 
 tract was made the defendant had no land on Licking, in 
 the county of Bourbon. The land was represented to be 
 19 inile^ from Bourbon court-house, and miles from
 
 453 CASES IN Till: COUIT OF Al'FKALS 
 
 1809 f'.ringlon. The evidence <f Scwrll is (hat the d''f, 
 l -~ v ' tnt said that tl nant "will not find a J<>hn>t>/ 
 
 it'ilcn in me," t;;n..r^, that if IIP docs tint find the 
 land, he \vould not recover of him as he had of 
 
 There is proof that the defendant refunded to 
 vho had purchased part of the samp tract. ^ here tli'-io 
 is a trivial circumstance, the chancellor does not annul the 
 Contract, but where there is a material one wlm.h oes to 
 the essence, then the contract is annulled. The defendant 
 is 'bound to show that the circumstance is not material. 
 There is m> proof at all on the part of the defendant. II" 
 oujrht to have showed that his deed |.a-ed (In- lr-;;d -f.co, 
 according to the laws of (he country, lH'oie ho complaint 
 of the deed's being annulled. This court can give that 
 decree which the chancellor ought to have ;Jven. if lii^ is 
 erroneous. HOW could the complainant prove that the l.v.d 
 was not there? It wn* proving a negative. The defendant 
 should have proved, that it was there. Hut it has been -.mi 
 that the deed answers the natural description of the land. 
 Jt was more material that the land should lie in Hnvrbon 
 countv, than on Li-cJcinif, a river of perhaps IfiO n.ilrs in 
 length. On the part of the complftinant it is cojiten<K'd, 
 that both descriptions houM be complied with, so as to 
 bind him to the contract It has been said, that under the 
 decree the defendant lo^es his land and money. Iui sup- 
 pose the decree is reveined, and it tr.rns out that the land 
 is swallowed up by elrer .surveys, then the complainant 
 lose* the land and the ra tiey. 
 
 ShnaJJ. in reply. The omtft probantli is on the com- 
 plainant; he avers a fact which, if denied, he i^ compelled 
 to prove before he can succeed. The attorney -nem-ial 
 has sail, that one description failing, the defendant is 
 bound to show it is not a material one, which jjoes fn the 
 thence of the contract. This is not so. If the complai- 
 nant has sustained damage, he must prove it. The proof 
 is not made out on the part of the complainant, and he. is 
 obliged to resort to the defendai* r, and if he 
 
 does the answer must be taken all together. 'I he law of 
 
 niii has been resorte ' to for the purpose of 
 ing that the land does not lie n J . >;:nty. It is 
 
 not possible to nay by that law whether i>< not iho land 
 lie* In that county. It is not cteuied, tbat il ti.crc is an
 
 OF MARYLAND. 4 
 
 immaterial circumstance which aflects the contract, tliat 1809. 
 redress ought to be bad in damages. As to when Ktn- 
 lucky was atlrnitlctl into the union, See 1 1\>l. I.t'ica of 
 U. S. 594. The land having been once in Jiourbon coun- 
 ty, is sufficient. J)prye.y's Lessee vs. Ihnnnwnd, 1 I/arr. 
 4" Jo/in?. 193. Sii])pose a deed for a house in //<?;,> o-'.s- 
 town, in Frederick county, would it be a good deed? 'The 
 house in flayer's town must have been the essence of tlio 
 contract. A s co StwtlPn testimony that the defendant 
 said the con plainant would not find a Johnny Snini'dm in 
 him, the meaning is, that as tlic complainant had alleged. 
 that Snow den had cheated him, (uhich was not true,) the 
 complainant would, not be cheated by him, as the land was 
 to be found. 
 
 Jtidge/y, also in reply. The decree of the chancellor is 
 erroneous on two grounds 1. The court of chancery had 
 not jurisdiction, and the decree cannot be enforced. 2. If 
 the court of chancery had jurisdiction for compelling a 
 specific perfofttiaiKe of the contract, yet there is no proof 
 in the case that there was fraud, mistake, .c. upon which 
 to give relief. 
 
 First position. A ?ubequent division of the state, anil 
 forming a new one, and the laying off new counties, did 
 not alter the contract, as the land could not be affected by 
 any such proceeding. The decree cannot be enforced in 
 this court. The remedy is to be against the person, arid 
 Bot against the thing. Suppose the appellant complies with 
 the decree, by paying the money, what process can hehav* 
 to compel the appellee to comply? Suppose the appellee 
 had paid the appellant the money, and the latter had re- 
 fused to convey the land, could the court of chancery 
 compel a specific performance of the contract? The court 
 had no power to compel a deed. It might decree the money 
 to be refunded. If the chancellor had decreed a deed, could 
 the decree operate in Kentucky? It certainly could not. 
 It is evident that the chancellor had no jurisdiction to ena- 
 ble him to make this decree; there being no mutuality as 
 it affected the parties. He doubted his own power, for he 
 says "so far as the power of this court extends."' Tin's 
 shows that he did not think he Imd jurisdiction to vacate a 
 deed for land in another state. The appellee was guilty of 
 and is therefore &ot tp be benefitlcd by it. He
 
 43-t CASES TX T11K COURT OF APPEALS 
 
 1 809. nin y have convoyed toe land away, or it may have been sold 
 (o pay the taxes on it. 
 
 Second position. Admitting the court had competent 
 jmisdiciion to ^ive the relief prayed, yet time is not suf- 
 ficient evidence upon wl.irh tiie relief could be grounded. 
 The answer denies thf material facts relied 0:1 hy the bill. 
 Tlie reason for rescinding the first contract was not for the 
 cruise stated by the chancellor. It was fully proved, that 
 no dam could be rundc so as to prevent the water from 
 overflowing on the neighbouring lands. The first contract 
 vas fair and honest; and the rescinding it was perfectly 
 agreeable to both parties, aud was done at the instance uf 
 the appellee, who instead of wishing the money to be re- 
 funded, was desirous to take L'rntncky land. There is n 
 proof that the appellee, when he went to Kentucky, nmde 
 the necessary inquiry as ta where the land lay. It the laml 
 lay in this state, it was not such a contract as ought to be 
 annulled upon the mere ground of its not lying in the conn t 
 ty, if it conformed to the other description-. 
 
 DECKLE KEVEUSEP. 
 
 DEC. (E. S.) KEGKO GEORGE vs. 
 
 ii-:uh of APPF.AL from Somerset county court. This was a petr- 
 
 S K, a rctMcnl of 
 
 thi tut.-, . bv,- tj oll (. freedom. The facts of t'nc case, as admitted at 
 
 IX* rt n r'i 1 8T *' '"* 
 
 ;\ t .1 the trial, wore these TOP petitioner, (the appo.Uant,) waa 
 the property of Sttinncl Engcrsolc, who resided in Sumtr- 
 
 r ',!f sf-t county, ami on his death, camo to the possession of 
 
 V 1 ,' 1 ," flic/tan! gn-jcrsolc, his administrator, who icsidrd in the 
 " r V/ -anie county. Jt. ngeraole, the administrator, by bill of; 
 
 i1?i..' oi'i'I'^'ti- sale dated the iCth of October 179?, sold the petitioner to 
 
 - .> tin- dt fetulant, then a resident also c-f the aid county, and, 
 Yw,''i.r br m who inim eOiatcly afterwards removed to the state of I'ir- 
 
 .KllltU tO I - - 1 1 r,.| 
 
 ^ci-dom. /, and took the petitioner with nun. 1 lie court, f/W/c, 
 
 Ch. J. and Done, A. J.j were of opinion, and so instructed 
 thejury, that the-" facts were not suflicient tocntitle thepeti' 
 tioner to his freedom. The petitioner exceptcd; and the ver- 
 dict and judgment being against him, he appealed to thi& 
 (ourt. 
 
 The cau*e was argued before BUCHANAN, NICHOLSON, 
 GANTI, and KA-.-.LK, J. by 
 
 If . li. A/urltn t for the Appellant; and ty 
 X tiuylyi toe liie Appellee. 
 
 JUDCME5T
 
 OF MARYLAND. 455 
 
 BOREING'S Lessee vs. SINGERY. 
 
 ERROR to the General Court. In this case there was a 
 \vrit of procedendo from the late court of appeals, direct- 
 ing 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 Balli- 
 more county, containing 300 acres of land. [See 4 Hart. 
 8f M'Hen. 398. 3 The defendant took defence on warrant tent vid 
 for all that part of Barrings Habitation Hock, which is tiiu-ate of survey 
 
 returned to iinj 
 
 included in Singe.nfs Trouting Streams, according to his |:>^ office, ,. 
 locations thereof on the plots returned in the cause. TIie K<'>-i-:i 
 
 court r.'tiisi-il ia 
 
 1. The plaintiff, at the new trial at October term 1805, d '- tc .' ,. tlie ''">, 
 
 ' that it H not rotiM 
 
 read in evidence the patent of Boreing's Habitation Rock, in7 u%*4'vi 
 granted to Ezekiel Boreing, the lessor of the plaintiff, on U""^ fc'a^T 
 the 24th of April 1795, for 300 acres of land more or less. l^'SSjSJS 
 The defendant produced a grant issued to him the 20th of ci^'^m,V 
 April 1775, for the tract called Singer ^s Trouting K^'w^ 
 Stream*, for which he took defence. The plaintiff then im"i" office a, ' 
 produced the original certificate out of the land office for gnt, wfi>rfcr4 
 the land called Singcry's Troiiling Streams, dated the 30th nVmude dt bf 
 
 .' . , -. ., , Him or hi autjio- 
 
 of September 17/0; and gave evidence by James Colder* ritj 
 
 c n , . " , 1'bepronrietarjr 
 
 that he was surveyor ot ualtimorz county w.ien the onai- in-u-wiiMw, n- 
 
 "ir, quirinjf a survey 
 
 rial certificate was returned to the land omce, upon which i >.- mmie ' ve- 
 
 st-rved lands, &c. 
 
 the patent for Singery's Trouling Streams \vas granted; rc ^ d p *!* 
 and that the certificate, on which the patent issued, was l."^.''^."/.''^^.^ 
 not matle out or signed by him, or by his authority; that ;,<; t ^"'^'/ t -'^. 
 the original certificate, as entered upon hig book of jjit V^SwdlS 
 surveys, contained no call to the beginning trees of the !S*b^M3*"e^ 
 tract of land called Petticoat's Louse, nor was there any K^, l b!''theT 
 such call in the certificate as made out by him, or under wfs?k>?en, e Ti"It 
 his authority. That the certificate, as made out by him to aii7notite,ofijS5 
 be returned to the land oillce, described the land called DM given. 
 
 ,_ ,, ... Depositions ^i- 
 
 Sinseru 8 J routing SlrecmM as ''ue^innina; at two bound- m>iany taken we 
 
 ,. . n..t iiennittrd t. 
 
 ed wliite oaks standing betvveeji two barren hills at the |K ri-ad > '*- 
 
 il'ni'f, akhough 
 
 end of the last line of a tract of land called Merryman's <j'"-d -i- 
 
 dcnce by the of,- 
 
 JMountain, (included,) and about west nine perches from v*** t*av< 
 George's Run, and running thence, "&c. (nineteen courses 
 \vithout any calls,) "and then with a straight line to the 
 beginning, containing 178 acres," &.c. as taken from his 
 original book of surveys. The plaintifi' produced this book 
 in court, and offered to read it to the jury. He further 
 offered to prove by Cedder, that he had examined, the on-
 
 4-56 CA<!-:- IX TIIF. i OF 
 
 1809 ginal certificate of Si,i:--c;->/\t T/wi'M* * the 
 
 (red and sijj-u'd (!), 
 
 fur the lam! oitit e. lly which rvitlem-o 
 t!ie plaiutiT ofl'-n-d (o prove to the jury, that the certifi- 
 cate 'f - v . - ued to the land 
 
 . and OM \rhich the patent issm-d, \vas .1 forgery, and 
 could tint nperale to n:ns m ire Ian. I than \\:is contained in 
 tiie certificate i^ii*>d bv Cat'ta: The defendant tlu-n of- 
 fered exidotice, thut no oilier certificate of Sin 
 'J\n!iirr Sfi-i-im-: rxci'pl thv one on \v!iir.h the patent i^- 
 t-in-d to (lie dcfondnnt, ua-. ev:-;- i-i'tiirjn>d to the land office. 
 lie also olTere<l in evidence, tht; certificate returned to the 
 land oHire, ^^ilI^ the cndor-t-iMt-ns (lierenn, and the afore- 
 said patent. [.Vf<? them scf out in 4 fiarr. $ M-ffr.i. 
 30R.] He also oRVml evidence, tliat Ctt' 
 ili<l make out a cc;-ti r ir;ite for Sinzcnfs Ti-o>ttin% 
 fro i, i tin- n;':-y made in lii^ ):o<i!;: atul to 
 
 that a c- for .SVr/qrry'j Ti '.-ram* 
 
 Tiover vas e\.Mnin'il with th> said entry, he ofl 
 in evidence, by t..-'./rr, <lia< lie did not be^in to - 
 ^vv Ian'!-, in the rrxrrpcs of RaltiffiOte county lit fi ire (he 
 24th of Ivivember ! TO, and that he vonld not hava ir-- 
 sorled a certificate in his book of an elder date thaji (he 
 24th of November 1770, if he had laken notice af such a 
 date. lie also pffered to prove, that there arc cerii:. 
 of surveys contained in the said book, bearing; date since 
 the 4th of July 1776. He also oR'ered in evidence the 
 proprietary instruction* to JR^'iert E<len, Daniel fii'tam/, 
 and John Muffon Jordan, dated tiie 3?th of June ITGVfa), 
 refjuirin^; that they should forthwith, if ni'ce.-ary, 
 an exact survey anil return to be made of the. lord propiie- 
 ' lands and manors. &c. He also offered! 
 evidence, that CaMcr uas appointed to purvey the land* in 
 
 .-.(ructions mentioned; ami to ;.:-nve that Cult'tr's au- 
 thori'N i-cfore the 4th of July 1776, nfleretl in evi- 
 
 dence the declaration of independence, lie al-o <-(Tered 
 in evidence, that the follouino; part of the entry in the >aid 
 book, and no more, is in the handwriting ot . . ui:: 
 
 "Amended for Chridltm S'i/f^rr;/, a tract beKinoingRt tv. o 
 b -iiii.-ied white oaks, ufandiny; betuten two birren hi ' 
 rl ..- finl of tiie la^t line of a tract called JArrj/wrw'* Hlmni- 
 includrd,} and about west nine perches from fi- 
 
 (aj Ent-jrcd in the Council record*, J. IL folio 241, '<u
 
 Ofr MARYLAND. 437 
 
 feun, and running then N 87 W 22 ps. S 47 W 96 ps." 1809 
 He also offered in evidence, by Calder, that the 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 entiy, is in the reserves of Baltimore county; and 
 that the entry made in his book, was ihade after the 4th of 
 April 1775, but on what day he knew not. The plaintiff 
 further offered evidence, by Calder, that the reason he re- 
 corded a certificate in his book, bearing date the 30th of 
 September 1770, was from an oversight in his not particu- 
 larly attending to the date of the certificate, and that he 
 would have corrected the erroneous date had it particular- 
 ly occurred to him. That he had a number of deputies, 
 who were authorised 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. 
 
 Shaajf, for the Defendant, stated two objections to this 
 testimony- 1* Because the book was made without authori- 
 ty, and the entry was not made by Calder himself, nor ex- 
 amined by him, and from his own proof was not made un- 
 til 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 Corn. Dig. 575. 2 Bac. M. 602. 
 Lane, 105, (argt.) Upton vs. Basset, Cro. Eliz. 445. Bull. 
 JV. P. 260. Stat. 27 Eliz. ch. 4. CarmWs Lessee vs. 
 Griffith, \ Harr. fy M- Hen. 297. Maxwell's Lessee vs. Lloyd, 
 1 Harr. <$ M k Hen. 212. Spalding'a Lessee vs. Reeder, I 
 Harr. fy M-Hcn. 187. Hammond, et al. Lessee vs. Shere- 
 dine, 4 ffarr. 4* M'Hen. 420; and WebVs Lessee vs. Beard, 
 1 IJarr. Sf Johns. 349. 
 
 Martin, (Attorney-General,) and T. Buchanan, for the 
 Plaintiff, were stopped by the court. 
 
 CHASE, Ch. J. (sitting alone.) This question, he said, 
 had already been decided in this case at the former trial 
 at October term 1799, when there was a fuller court. He 
 considered himself bound by that de<ji*ioD, even if h% 
 vot ut CB
 
 458 CASES IN tHE COtJRT o APPEALS 
 
 180?). thought differently now. lie therefore permitted the evi- 
 dence to be read to the jury, bvini; of opinion that the fact, 
 nhether the certificate \v;t> iW^ed or not, was a material 
 fact in this cause, and that the evidence offered by the 
 plaintiff was competent and admissible evidence to provs 
 that fact; and that the credit of the witness, and of the 
 surveyor's book referred to, were subjects within the pro- 
 rince of the jury, and proper for their consideration upon 
 the whole of the case. The defendant cxceptcd. 
 
 2. The defendant then, in addition to the facts before 
 stated, gave in evidence, that the locations on the plots 
 wade on the part of the defendant are true", as by him lo- 
 cated, 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 plain tiff*, called fioreing' Habituli-.ni !>'<>< 7.-, for which 
 this suit is brought, lie 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 plain- 
 tiff and the defendant, on a bill exhibited expressly to va- 
 cate the defendant's grant. And read in evidence the re- 
 cords and proceedings in the council chamber, by \vl.L !i u 
 commission was created for the purp'ose of selling certain, 
 lands of the then Lord Proprietary of Maryland, which 
 is herein before referred to, dated the 50th of June 17 
 and proved, that the lands claimed by him in virtue of hi* 
 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 Clupham, whose 
 name was to the receipt of the consideration money en- 
 dorsed on the certificate of the land called Sinsjfry'a 
 'fronting Streams, stating that he had, on the 1 9th of April 
 1775, received of the defendant the sum of 71 40 ster- 
 ling for the purchase money of that land, was then actirlg 
 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 of the surveyor, or IHH 
 fcwks, to vacate the defendant'* grant, or to prove that um
 
 OF MARYLAND, 4 
 
 Certificate returned to the land office, as a foundation far 18Q9 
 that grant, \vas forged or frauduleiit, and cot made out by v "v ' 
 
 f Boroinff 
 
 huu or his authority. v u 
 
 CHASK, Ch. J. refused to give the direction prayed. The 
 defendant excepted. 
 
 3. The defendant then offered in evidence the commis- 
 sion which issued at his instance out of this court, on the 
 JSth 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 depositi- 
 on of a witness in answer to certain interrogatories, con- 
 cludes by the commissioners certifying, that "the forego- 
 ing interrogatories were taken at the instance of Joahvtf 
 Stevenson, on his asserting that the plaintiff' had know- 
 ledge of his coming, and intention of having this commis- 
 sion executed,' 1 To the admissibility of this evidence, 
 
 T. Buchanan, for the Plaintiff, objected, because there 
 had not been legal notic? to the plaintiff of the time of 
 executing the commission. 
 
 Key, for the Ejefendant, cited, Norwood vs. Owings t 
 (ante 98J where this court decided that notice was not 
 necessary in executing foreign commissions. 
 
 CHASE, Ch. J. This case is npt similar to that of Nor- 
 wood vs. Owings. In that case ^he commissioners certi- 
 fied that they had given notice; but in this case 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 de- 
 fendant e^cepted. 
 
 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 de- 
 fendant, under a commission issued from this court to 
 Fcn/ette county in Pennsylvania, on the 14Ui of March 
 1798, but which the defendant refused to read. The re- 
 turn is as follows: "In obedience to a commission to us 
 directed by the hon'ble, t|ie judges of th.S general court
 
 60 CASES IN THE COURT OF APPEALS 
 
 1809 for the western shore of Maryland, we met at the house of 
 James Gregg, in fai/ettc county, J'cnnaylcanta, on the 1st 
 of October 1798, ami after taking the oath directed, w 
 appointed J. M. clerk, uho took the oath directed in the 
 said commission. \\'e then put the following intcno^itto- 
 ries unto Daniel Goodwin, of the county aforesaid, being 
 first duly sworn on the Holy Evangely of AhniJiU (iod, 
 \i/.." [Then follow the interrogatories and oH&trcrs.] 
 'The foregoing interrogatories were taken at the in-t.un e 
 of Joshua Stevenson, on his asserting that Mr. Cooke, at- 
 torney for the plaintiff, had knowledge of his coming, and 
 intention of having this commission executed, and consent- 
 ed thereto. Given under our hands and seals," &c. Sign- 
 ed 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 
 Daniel Goodwin* named in the same commission, who at 
 the former trial attended court, and his deposition t;ilru 
 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 contain- 
 ed legal testimony. 
 
 C ii ASK, Ch. J. This commission is liable to tlie 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 pur- 
 pose of impeaching or counteracting the deposition taken 
 under the commission. The plaintiff excepted; and the 
 verdict and judgment being for the defendant, the plain- 
 tiff brought a writ of error to this court. 
 
 The cause was argue:! on the bill of exceptions taken 
 on the part of the plaintiff, being the but bill of excepti- 
 ons herein stated, before BUCHANAN, NICHOLSON, (JAM ;> 
 and E.VKLK, J. by 
 
 T. Buchanan* for the Plaintiff in error; and by 
 Slimij^, for the Defendant in error. 
 
 JUDGMENT AFFIRM KO.
 
 OF MARYLAND. 461 
 
 MOHRISON vs. GALLOWAY. 1809. 
 
 APPEAL from Washington county court. This was an 
 action of covenant, brought by the appellant hi the late > 
 
 Galloway 
 
 general court on the llth of February 1799, upon the lol- Jn!lll a4 .,i 01 , n f 
 lowing articles of agreement entered into between him and JSn'ii'JelVihoJTR- 
 
 ,. i r i / it > i i- i r hriiarj 1709, upon 
 
 the defendant, (now appellee.) "Articles 01 agreement an eTmentexe- 
 
 maclc this 18th of March 170G, between William Me, rn son ot March n?.;,i.e. 
 of,'' &c. "and JBcnjamin Galloway of," &c. "Y\ l-.ereas it pfototHrj ami 
 
 * 9 (the tief. lulainj 
 
 is the intention of the said Gwoway that a complete mer- * t j ol " l " K '" 1er 
 
 din Uwt a com. 
 
 chant mill shall be erected at a seat on Chew's Farm, in i>'. i :| e , "J',"' 1 "!' 1 
 
 nn (should benwift 
 
 Washington county, and said Morrison is willing to exe- j > { )e ' "'^"jjl'i 
 
 by G, Mln> va 
 
 n!so fo provide n framed or hewed lojjjyed dwelling-house fl the mill for M to reside in, ami M agreed 
 that lie would lake up his residence :ii the n.ill in ihc d> hMig boue, ai d would fi n the manager 
 and snpoiiinciul. nit ot (he mill, vhiih was ti. be win kod for the joint l-em-fit of M and G, ii.ii|iial 
 parts, M to receive one hull' of Uit- lieu profits, and G the other l.iilf '1 In- copartnership 10 lon.meiice 
 ai soua as the mill should he reudj tndowoik, and continue I'm- leu jeais. Thnt regular set of 
 books should be kept, which should contain all the transactions of tnr copartnership, art! a settle- 
 Hi. Mil should l>e i- Heeled at th<:eml ot every year. "1 lie firewood should lie furnished IK in the (arm 
 on which G resided, for the use of two lire places in ihe null and duelling; house, M the equal enst of 
 the va" 1 '" *" r cutting | and hauling it to the house-; and 12 acres ol land, unhiding two acrts of bot- 
 tom land most convenient lo M, to be |>m under pood find sufficient ft nee tor his use. The ileclitni- 
 twin uverred. that tlie mill was completed on the 21st of June 17WJ, HIM) that M | eilermed, &c '1 1.e 
 breath assigned was, thai G did, on the 31st of January 175)9, forcibly eject M from the mill and MI - 
 misej, and still keeps him out That G did not provide a liumtd or hewed logged dwellibg-honse at 
 the mill for M to reside in That G, on the d;-j and year h,st aforesaid, anc* the mill ai complete 
 nd put intu foinple(e ino:i<j|i, did prevent M from rcceitiiif; one half of the ueti profit i o< the null, 
 but that G did, contrary to the cons<'nt of ' M, receive ilv whole ot ili> profit* from the day and) eat 
 last aliircsaid, until the bringing of this action, and hath refused to pay any part thei-rof to M A'or 
 did Ci furnish >l with 12 ncrt-sof land, including two acres of bottom hind most con>enient to M, 
 Under fjood and sufficient truce tin- M's ii.-e. The vitness to the sifrT'immt \v;i* uffm-d b) G 10 prove 
 what look place 1 I ween G ar.d M previous to anil ot the tin.e of the iigieemt-nt, as to ihf-ir intention 
 and meanini* in the aic< n.cnt; also another witne-s, who proved that vhen he M.'I.S at wi.rk upon the 
 dam for the n ill, he ri cei\ed on'trs IVoin G to build the i!\u Hiii^-ln n-i fiir M, but ll.:it M told him to 
 continue to work at the dam, and not to mind the house, as he could n-.afce a shilt \iih the counting 
 room m the milt, which lie occupied, and deceived that itansvu te<l his purposes very well, ni.d that 
 theie wss no occasion to build the dwelling- house until it suited the roiiVLiiimce of G. Held, that 
 the fonstraelion of the agreement is a mailer of law to lie determined by tlie court '1 li^t |>uio! evi- 
 dence may be admitted to exp'ain doubtful parts; but no evidence can be admitted to prove the 
 a;-r.-i incut diftiivnt, 01 to piove any ndtiitiunal agreement nut included in or touched upon in tlip 
 Hyrcemeiit 1'hal the < videi << oiler i <i ilnl noi <iis </IM or fXtillRUi^h the conn net, or bar the pliiintift"'* 
 c.-itre of action :t^;i. nst the defendant lor the Imach in i.ol but. dint; the house; that it Mas only a 
 eonseut to a temporary susneiibion of llie builJing of the d\\tlung-houie, and i-. only pioper in miti- 
 gatinn <if damages 
 
 Heiii alio, thut at the time of bringing ihe action, the plaintiff had a CHUSC of .tctiun, beingj depriv- 
 ed of the IK i.t tits under the coi.tnu-t 
 
 Helrl 8l, that the covenant on the part of the (U fondant, that the jilaintifl should receive one 
 hil ot the profits of the mill, is an independent covcnur.t; and tliRt it wsi bo| incumbent on the 
 plaintiff, to entitle himsc.f to a recovci \s io prove a compliance with or luililiaei.t of every stipula- 
 tion in the covenant on hi-. )>ur'. lo be performed 
 
 Held also, that it was not necessary for the pliiintifT, in order to support his action, to prove that I* 
 took up his residence at the mill, and supeiinlended the same as miller, and devireti h; un.eand at- 
 tention to the mill, in such luai.r.cr as is u-i.l tor nun under varvs to do purliiulur woiU,- (hat In* 
 kept a ri'KU ar s. t of hook, in v.hieh veie tojil^inid ail ihe Iransactibtts of she copartnership, aji^^ 
 that he effeetrd a set t|. mem of the pai'tnt i-hip iiccouins a; iht ei.il of the year i7S*h, or that he \. a - 
 prevented from doing so by the defendant 'I hut it v. js onl\ i its-nry l.>r ihe |<lainiiil lo piove tlint 
 he did enter upon ihe manapfement and suptrinUi;dance or the mill according lo ihe covtiifaiit, ai:d 
 did wi.i-k and iiianugv the same 
 
 Hctri also, that lor withholding from the plaintiff the one hn!f of the profits of the null, he could 
 only iecover Ihdtfor from the tune when such withholding oi the profit* first cumu.enctd Uo\vu lo 
 the time when the action was brought 
 
 Held also , thnt the plaintiff inipht recover damrpes fcr one hlf of the nett profits nf the mill ('.i.yn 
 to the tinie of bringing ilu- artinn on!); ami dunuip.-: l"r the ejtctiiiK mid ti.riui hmi out ol iheyov- 
 trssipii of of the mill, an d fur all advantajfis ai.d beoeiiU winch mi^l.t attt ml or result !rom th- pi> 
 se>sion thereof, during the. uuexpi red term of ten 5 ear*., nut comun liemleil \\uhin tlic nett pi.u'n, 
 lit' the mill: ,ind iliat an action or ;.ction* may be bruii^'ht bj il:e piaintilf against the lUlei dai.i, for 
 o^PKlf of the nett profits which might have bein ma..i:, or inny he made iivm working ihe n.iil un- 
 der the contract, ti'ua. Uie llth of i'ebiuary 179S, uurinK l ' 11 - coi.iii.uunce ol ihi; partnership under 
 the same 
 
 Held also, that this bping an action founded on contract, the plaintiff had on y a ri^ht to recover 
 d:.mas<<i lor the actual lost, injui> nnrtincor.renieiHt.bj him suMained h> onasmn of the b:-e:-.chi 
 oi' coyenanl assigned by him, (exclusive of his part ol the prvfiu ol tlie null.) aeeording to thv *li ic 
 of the circunisuinccs existing in ihe case, -yuihout rtlei-tnce to Uu- .Vrce, il'ai.j, With hu-U the 
 plnintiff was di-poursn-tl 
 
 Ht'U :i':s<i, thHi i; wa no ^rritiud to arrest the jui^nient upon the venlici, (wLiLh wos for the plain, 
 tin,) oecausi. the decliuo suted.a* u U>MU vu llic ^\n\ a '.lie deiuiduiii, ike not tntlosim the 
 42 u'ure, of lUiiU, to.
 
 3 , \ 3ES IN Tin: rnnrr OF APPEALS 
 
 cu!e .i'.dni-. I5e it rcmembeied, that the parties 
 
 J aluie-aid h:i\e j^recd, ami by tlies*- present- do ;ciec,eadi 
 with the other, th.it tlu y will ie>p-ci\ely do and perform 
 the follow ii niviit, agreeable to the ['lain intent and 
 
 leaning thereof; that i- to -ay, it i-. agreed on the part of 
 Slid fjtillmi-Hiti that IK wii! j.ro\ide all the necessary ma- 
 terials for erecting and fmi-liing said mill, am) delixer them 
 t'j >ai<i .I/.-/-M.-.O/I, at Kid mill-seat, in i;md order, and will 
 aUi> provide for said J/nrri?nn, and his woikim-u, meat, 
 drink, washing ami lodging, during the time of building said 
 inill;,the rafters, jois: ..ml biacei*, to be sawed; the 
 
 will -house to be -10 ieet by 4j feet, or 15 feet square, I 
 Morrison shall determine: to be nwo stoiies high, and aa 
 hipped roof; the foundation to be stone work; the super- 
 structure of the mill to be framed work, and weather board- 
 ed and shingled; a counting room to be in the mill; inj 
 said Gtilluicay to find a proper desk for the same: said 
 Gallon-til/ to provide a framed or hewed logged dwelling- 
 house, 2-4 by ilO (Vet, with a brick chimney, &t said mill, 
 for said Morn son to reside in; said (itiUou-uy further 
 agrees to furnish, in due time, all articles necessary to- 
 wards putting said mill in complete motion to do merchant 
 and country work, as said Morrison may call on him for 
 them, said Murrinon taking (are always to give said Gul- 
 hu'tiy sufficient notice to enable him to provide the same; 
 said Mri-iun agrees, on his part, that he will hew the tim- 
 ber, frame the mill-house as before mentioned, weather 
 board it, and shingle ihe roof; make doors, windows and 
 stairs; make two water wheels; start three pair of burr 
 8tuneK,four bolting cloths, rolling stifen and tan, and make 
 hoisting gecrs within ami without, and boulting chest. 
 Jtern. Said jlwrtison ergages to complete the abo\e work, 
 after the proper foundation walls are built, for the sum of 
 450 current money. Jtcin. It is agreed on the part of 
 said Morrixnn, that he will take up his re.-ideuce at said 
 mill, in the dwelling house aforesaid, and will act as the 
 manager and superintendaiit of said mill, which i* to be 
 v.orked fr the. joint benefit atid advantage ot Kiid . 
 son and Gu/lmcai/. in equal parts; that is to say, said 
 
 to receive one half of the nett profits, and said Guf- 
 the other lujf: saiu Murrimm \u engage the neccsia- 
 - to be employed in working said mill, and to re- 
 Buove them whenever he thinks proper; the uioavy capital
 
 OY MARYLAND. 4G3 
 
 for the use of said. copartnership to be provided in equal 1809 
 proportions by said parties. It is further agreed; that this 
 copartnership shall commence ds soon as the mill shall be 
 ready to do work, and shall continue between the parties 
 aforesaid for the space of ten years; but it is understood, 
 that in case of the death of said Morrison before the end 
 of said ten years, then this copartnership is to be dissolv- 
 fed immediately after such event shall take place. It is 
 agreed that a regular set of books shall be kept, which 
 shall contain all the transactions of the copartnership, and 
 a settlement ot the partnership accounts shall be effected 
 at the expiration of every year. It is understood between 
 said parties, that said Morrison shall never claim any wages 
 for his management and superintendance of said mill, and 
 the said business; nor shall said Galloway ever charge said 
 JHorrison with any rent for the use of the said mil!: but 
 that the one shall always be considered as a full satisfacti- 
 on f;jr the other; the firewood shall be furnished from the 
 farm on which said Galloway now resides, for the use of 
 two fire places in said mill and dwelling house, at the equal 
 cost of the said parties for cutting and hauling it to said 
 houses; and 12 acres of land, including two acres of bot- 
 tom land most convenient to said Morrison, to be put un- 
 der good and sufficient fence for his use. The hogs that 
 may be supported by the sweepings and offals of said mill 
 shall be considered as the joint property of the parties 
 albtesaid; and the said Galloway is to employ, at his ex- 
 pense, a person to get the shingles to cover said mill and 
 dwelling-house. In testimony whereof the parties afore- 
 said have hereto set their hands, and affixed their seals, 
 the day .Said Galloway agrees to pay to said Morrison such 
 money as he shall require during the time he is engaged in 
 the building of said mill, and the balance of his account at 
 the time of completing the same. " It was signed and sealed 
 by the parties. The declaration alleged, that although the 
 plaintiff had well and truly done every thing on his part to 
 be done, according to the funn and effect of the covenant, 
 and did well and faithfully complete the mill on the 21st 
 day of June 1798; and although he was always willing 
 and ready to take up his residence at the mill, in the dwel- 
 ling house mentioned in the article* of agreement, and of- 
 fered so to do; and although he was ready and willing at all 
 times to act as thejanaer and superintciidant of the mill,
 
 CASES IN THE COURT OF APPEALS 
 
 ftiul offered tf to lo; ami he was always ready ami Billing 
 to k-*p a *et of" books to contain the trans.u -linn- of the co- 
 j-;u Mn-r>hip, ;iiul that a settlement of the partnership ac- 
 rounts should be effected at the expiration nf each year 
 Yet the def'Midant did afterwards to wit, on the 31 st day of 
 January ITOn, at, &c. forcibly, ami again>t th rmwnt nf 
 the plaintiff, eject and turn him from the mill and premi- 
 
 :. 1 always hitherto hath, and still doth, keep him from 
 the same; nor did the defendant provide a framed or ! 
 Joiijrrd dwelling hou-se. 21 by CO feet, with a brick rhiinney, 
 ut the mill, for the plaintiff to reside in, according to the co- 
 venant: lint the defendant afterwards, &.c. after the mill \v;<> 
 complete, and put into complete motion, did prevent the 
 plaintiff from receiving one half of the nett profits of the 
 mill; but ton defendant did, contrary to the consent of the 
 plaintiff, receive the whole profits for a long space of time, 
 .vit, fiom,&.r. until the day of the impetration of the <>ii- 
 
 writ in this cause, and hath refined ' deli- 
 
 ver any part to the plaintiff, although often requested so \tr 
 do. And the plaintiff in fact avers, that the one half [ 
 the nett profits of the mill, for the time aforesaid, was and 
 still is of the value of 2000 current money, to wit, c. of 
 wVuh the defendant had notice. Nor did the defendant 
 furnish the pl.iintifl with 12 acres of land, including t\vff 
 acres of bottom land most convenient to the plaintiff, under 
 jood and sufficient fence, for the plaintiff's use, but wholly 
 refused, and still dth refuse, to furnish the land, or any 
 part thereof, as by the articles of agreement he was bound 
 to do; and so the plaintiff saith that the defendant hath not 
 performed, fulfilled, kept and observed, the covenant h - 
 tween them made, but has broken the same; and hath hi- 
 therto wholly refused, and still doth refuse, to perform it to 
 the plaintiff; wherefore the plaintiff saith he is injured, and 
 hath sustained damage to the value of .1000 current money, 
 &c. It was agreed between the counsel, to enter a gene- 
 ral plea or performance of all the covenants, and take is- 
 sue thereon, with leave to the defendant to give any thip^ 
 in evidence which he might have pleaded in bar; and that 
 all errors should be released except substantial errors in 
 the declaration. 
 
 1. At the trial in the general court at May term 1801, 
 Itrnni* 2Jini..;i witMM, proved, Hut in the summer ITPf 
 he received order* frym the defendant to build the dwel-
 
 OF MARYLAND. 405 
 
 ling-house in the declaration mentioned, and to take the 1809. 
 slaves of the defendant to get and prepare the logs for that 
 purpose, and t put them up. This direction was commu- 
 nicated to him by letter, the defendant being then absent 
 from home at Bath, in Virginia. That he, the witness* 
 was at that time at work with the slaves of the defendant 
 upon the dam for the mill. That the witness being about 
 to execute the above orders of the defendant, told the 
 plain tift' that he was about to take away the hands of the 
 defendant from the dam; the plaintiff* asked for what, he 
 told him to build his house; the plaintiff told him to conti- 
 nue to work at the dam, and not to mind the house, that 
 he, the plaintiff', could make a shift with the counting room 
 finished in the mill; that in consequence of this request of 
 the plaintiif, he at that time refrained from building the 
 house, and continued working upon the dam until the cold 
 weather prevented him: that lie began again to work upon 
 it in the spring 1798, and did not finish it until some short 
 time before the mill was completed, which was on the 21st 
 of June 1798. That the witness was the overseer of the 
 defendant for the years 1797, 1798, 1799. That he ne- 
 ver after received any instructions from the defendant to 
 get the logs for the house, and that none were ever got. 
 That at this time the plaintiff was a single man, and that 
 the room in the mill was a large comfortable room, with a 
 fire-place in it. The defendant then proved, that after 
 the mill was completed, the plaintiff occupied the room in 
 the mill, and in conversation with Peregrine Fitzhugh, 
 declared to him that the room answered his purposes very 
 well, and that there was no occasion to build the dwelling- 
 house until it suited the convenience of the defendant. The 
 plaintiff offered no evidence to the jury that he ever called 
 upon the defendant to build the dwelling house, or request- 
 ed it to be done. That on the 3lst of January 1799, the 
 defendant dispossessed the plaintiff of the mill, and kept 
 him out ever after. On these facts the defendant prayed 
 the court to direct the jury, that the plaintiff had no cause 
 of action against him for the alleged breach of covenant in 
 not building the dwelling-house. 
 
 Masnn and ./. Buchanan^ for the Defendant, cited Jones 
 vs. Barkley, 2 Doitgl. 684, 687; and 1 Roll. M. 453, 
 N. pi. 5. ' 
 
 VOL. n, -59
 
 405 t'A>t:- IN THK CorRl OF APPEALS 
 
 1809 Martin, (Attorney General,) for the Plaintiff, cited LI I 
 
 ^^ tier vs. /Miami, 3 T. 72. 590. 
 
 Momma 
 
 CHASE, Ch. J. The construction of the agreement is a 
 matter of law to be determined 1-v ihe court. Evidence 
 may be admitted to explain doubtful parU: but no evidence 
 can be admitted to prove the agreement dilll-rent, or to 
 prove any additional agreement not included in, or touch 
 cd upon in the agreement. 
 
 The court cann-it give th.- direction prared bv the de- 
 fendant. They are of opinion, that the evidence otiired 
 did not dissolve or extinguish the contract in this case, nor 
 bar the plaint'iif* cause or right of action, against the de- 
 fendant, for the breach in not building the house; that it 
 was only a consent to a temporary suspension of the build- 
 ing of the dwelling-house, atrn is only proper in mitigation 
 cf damages. The defendant exempted. 
 
 2. It appeared in evidence, that the mill was completed 
 on the 21st of June 1798, and continued in the poi-r-Sion, 
 and under the direction of the plaintilV exclusively, until 
 the 3 1st of January 1799. That on this last day the defend- 
 ant dispossessed the plaintiff, and from that time only, \\ 
 held from him any share of the profit?. That on the. 1 1th 
 of February 1799, the plainlifTinstituted this his suit against 
 the defendant. The defendant then moved the court to 
 direct the jury, that when this suit was instituted the pl.iin- 
 lill had no cause of action against the defendant for with- 
 holding the profits of the mill. 
 
 ir, Ch. J. At the time of bringing the suit, the plain- 
 tift'had a cause of action, bein; deprived of the henefii*uu.|.-- 
 the contract. The court cannot gire the direction prayed. 
 The defendant excepted. 
 
 3. The defendant then moved the court to direct the 
 jury, that the covenant on the part of the defendant, that 
 the plaintiff should receive one half of the profits of the 
 mill, is dependent on the covenant, on the part of the plain- 
 tiff*, to take up his residence at the mill, to superintend its 
 management and direction for the joint benefit and advaife 
 ta^e of both parties, to commence a mpartncuhip as soon 
 as the mill should be put in motion, and to keep a regular 
 set of books containing all the transactions of the partner- 
 ship concern j and that the plaiutin", to entitle himself to a
 
 OF MARYLAND. 467 
 
 recovery of one half of the profits of the mill, must prove 1809 
 that he performed his covenant in all its parts, or that he ^ C -* 
 
 . i i ( Morriitn 
 
 was prevented from doing so by the defendant. 
 
 QuUuwaj 
 
 J. Buchanan and Warfiehl^ for the Defendant, cited 
 Jones vs. Tiarkley^ Dougl, G84, G90. sp. Dig. 284, 285j 
 and Gluzebrook vs. K'oodroWy 8 T. 1L SG6. 
 
 CHASE, Cli. J. The court are of opinion, that the cove- 
 nant in this case is an independent covenant, and that it is 
 not incumbent qu the plaintiff, to entitle himself to a reco- 
 very, to prove a compliance with, or fulfilment of, every 
 stipulation in the covenant on his part to be performed. 
 The court therefore refuse to give the direction prayed. 
 The defendant excepted. 
 
 4- Upon the rejection of the testimony of the subscrib- 
 ing witness to the agreement as to the ideas of the parties 
 respecting the agreement, and upon the statement in the 
 second bill of exceptions, the defendant prayed the court 
 for their opinion and direction to the jury, that by the true 
 construction of the articles of agreement, the plaintiff was 
 bound to take up his residence at the mill, and superintend 
 the same as miller, and to devote his time and attention to 
 the mill, in such manner as is usual for men under wages 
 to do particular work. That the plaintiff was bound to keep, 
 and prove that he kept, a regular set of books t in which 
 should be contained all the transactions of the copartnership, 
 and that he vas bound to effect a settlement of the part- 
 nership accounts at the expiration of the year 1798; and 
 that unless he does show that he has done this, or that he 
 was prevented from doing so by the defendant, he cannot 
 sustain an action against the defendant upon this covenant, 
 for dispossessing him of the mill on the 31st of January 
 1 799, and depriving l\im of the share of its. profits from 
 that time. 
 
 CHASE, Ch. J. The court cannot give the direction pray- 
 ed. They are of opinion, that it is Bot necessary for the 
 plaintiff to prove any of the facts above specified, to sup- 
 port this action, except thckt he did enter upon the ma- 
 nagement and superintendence of the mill, according to the 
 covenant, and did work and manage the same. The de- 
 fendant excepted.
 
 468 CASES IN THE COURT OF APPEALS 
 
 1809 5. The defendant then prayed the court for their direc- 
 
 tion to the jury, that if they should be of opinion that the 
 plaintiff* WHS entitled to recover from the defendant, for 
 hU withholding from the. plaintiff th- one half of the profits 
 of the mill, that he could only recover therelor from the 
 time when such withholding of the profits first commenced, 
 down to the time when this suit was brought. 
 
 THE COURT gave the direction accordingly. 
 
 C. The defendant then prayed the opinion of the court, 
 and their direction to the jury, that for the breach stated 
 by the plaintiff, in turning him out of the mHl on the f>l-t 
 of January 1799, and keeping him out thereafter, he can 
 only recover damages for the actual deprivation of his pos- 
 session, and the continuance of that deprivation down to 
 the bringing of the suit, and not further; and that for all 
 the subsequent damages which the plaintiff hath MMained 
 for being deprived of the possession and profits of the mill, 
 subsequent to the bringing of this suit, he may have a new 
 action against the defendant, if in doing so the defendant 
 l.as acted contrary to law. 
 
 Mason and Warfidd^ for the Defendant, cited 3 JU\. 
 Com. 157; and 1 Jiac. Jib. tit Covenant^ 542, 546. 
 
 Martin* (Attorney General,) and Slxift/f, for the Plain- 
 tiff, cited A'urse vs. flams, Sir T. Ittnjin, 77. 
 
 CHASE, Ch. J. The court are of opinion, that the plain- 
 tiff may recover damages for one half of the nett profits 
 of the mill down to the time of instituting this suit only; 
 and damages for the ejecting and turning the plaintiff out 
 of the possession of the mill, and for all advantages and 
 benefits, which might attend or result from the possession 
 of the same, during the unexpired term of ten year?, not 
 comprehended within the t;ett profits of the mill; and that 
 an action or actions may be brought by the plain tiff against 
 the defendant, for one half of the nett profits which might 
 Iitive been made, or may be made, from working the mill 
 under the contract, from the llth of February 1799, dur- 
 ing the continuance of the pat tnei ship under the same. 
 The plaintiff and defendant Oath executed to this opinion 
 of the court.
 
 OF MARYLAND. 469 
 
 7. The defendant then prayed )the court to direct the 1809. 
 jury, that in this case the plaintiff had only a right to re- 
 cover damages for the actual loss, injury and inconveni- 
 ence, by him sustained by occasion of the broacl-.es of co- 
 venant assigned by him; and that this being an action 
 soundin- in contract, it was not a case in which it was 
 
 O 
 
 proper for the jury to give vindictive damages. 
 
 CHASE, Ch. J. The court are of opinion, that this be- 
 ing an action founded on contract, the plaintiiT has only 
 a right to recover damages for the actual loss, injury ami 
 inconvenience, by him sustained by occasion of the breach- 
 es of covenant assigned by him, (exclusive of his part of 
 the profits of the mill,) according to the whole of the cir- 
 cumstances existing in the case, as they appear in evidence 
 to the jury, without reference to the force, if any, with 
 which the plaintiff was dispossessed. The plain till' cx- 
 cepted. 
 
 Verdict for the Plaintiff, and damages assessed to 
 JE1G8 15 current money. There was a motion in arrest 
 of judgment, and the following reason was assigned: Be- 
 cause the plaintift hath stated in the declaration, as a breach 
 of the covenant, on the part of the defendant, that he did 
 not enclose twelve acres of land most convenient to the 
 mill, in the declaration mentioned, two acres whereof was 
 bottom land, and cause the same to be put under a good 
 and sufficient fence for the exclusive use of the plaintiff; 
 upon which pretended breach of covenant the jury have 
 assessed damages to the plaintiiT, when in fact it was the 
 duty, by t!:e articles of agreement, of him the plaintiff, anil 
 not of (he defendant, to have enclosed said twelve acres 
 of ground at the joint expense of the plaintiff and defen- 
 dant. 
 
 Curia adv. 'cult. 
 
 Upon the abolition of the General Court, this case was 
 transferred to the county court of Washington, in which 
 court, at October term 1806, judgment on the verdict was 
 arrested by Shriver, A. J. and the plaintiff appealed to 
 this court. 
 
 The cause was argued before CHASE, Ch. J. NICHOL- 
 SON, GANTT, and EARLE, J. 
 
 i fur the Appellant. This case does not come up 
 ou an/ of tlie bills of exceptions taken at the trial of the
 
 CA<K* IN THE COURT OF AH'EALS 
 
 caiue. The *ole question for this court is, whether the 
 county court vti.' right in judgment oij the 
 
 ilict. The breaches in the declaration, which have 
 heeu made (lie ground for the motion id arrest ofjudg- 
 men!, juslati'tl in th- it-;i.ojis tiled, arc, that "(lie defeu- 
 daut did nut enclose twelve ac res of lariti mu>t n n\> riient 
 to, the mill, in ihe declaration itentioned, t\\o acres where- 
 of was bottom land, and cause the same tu be put uiidrr 
 goo,l and r-ullicient fence for the cxclu-.i\e use. oi the j.l 
 tiff.'* NOW the declaration does not allege thehicuc.li as 
 stated in the reasons. The breach, as laid in the declara- 
 tion, is *'nor did the defendant furnish the plaiutitV with 
 12 acre* of land, including two acres of bottom land, most 
 convenient to the plaintiff', under ^ood and sufficient fence, 
 fov the plain tilV's use, but wholly refund," \r. in the unrd* 
 of the agreement. The meaning of xvhicli is, that Gallo- 
 
 \\a- tu furnish the land i-tu lo>ed, a. id that it was not 
 to be at the joint expenae of the parties. 'I he preceding 
 clause in the x-.nvmeot saying, that the firewood, &.C, 
 s>houW be at the equal cost of the partita, did not make it 
 a covenant that the 12 acres should be enclosed at the joint 
 expense. They ate separate covenants. It is not usual for 
 a man to covenant to furnish himself; and as this was for 
 the benefit of Morrison, it must be Galloicay's covenant. 
 The costs of cutting the firewood, c. has nothing to da 
 \vith what follows respecting the land to be enclosed. Af- 
 ter verdict, the court are to infer from the expressions in 
 the declaration, that Gitlloicay did not, according to the 
 agreement, furnish the land, and enclose it as by the co- 
 Y;<aut he was bound to do, ami that the jury found that he 
 did not furnish and enclose according to the covenant. The 
 <tei!.ira(iou does not state at whose expense the enclosing 
 vag to be. It was to b done for .the use of Morriso.i. 
 The firewood was to be furnished at the equal expense of 
 the parties. 
 
 If the judgment is reversed, by the act of 1800, 
 09, this court are to give such judgn court below 
 
 ought to have given. The j-nl^mont her*' has been arrest- 
 ed, ai-d if the judgment o) .trrest is reversed, unless the 
 court give judgment under this act, tli appellant has na 
 u-medy but anew action. 
 
 '/'. titt'lutHan, for the Appellee. The only question a 
 to the cvQAtructiuu of the agreement is, whether the kttid
 
 OF MARYLAND. 471 
 
 vras to be enclosed at the joint expense of tlie parties? 1800. 
 The declaration goes upon the ground that the enclosure 
 was to be made solely at tfattoway** expense, when the 
 ngrecment does not so provide, but \vhcn it may be inferred 
 that it was to be at the joint expense of both, aud Was in 
 be taken as a mutual covenant. In the agreement, where 
 any act was to be done at the expense of either of the 
 parties, it is so stated. Hence, it not beiirg otherwise pro- 
 vided, the inference is, that the enclosing the 12 acres, 6cc. 
 was to be at the joint expense of both. The firewood \v:is 
 to be furnished at the joint expense, am! the land to be 
 enclosed at the like expense. There is no reason why the 
 expense in the one case should not be boi'ne as in the 
 other. In this case the appellee took a number of bills of 
 exceptions at the trial. He did not let the judgment go 
 against him on the verdict, and rely on the errors in the 
 opinions given in the exceptions, but moved to arrest the 
 judgment, which w.is done, and the cause is now in this 
 court on the plaintiff's appeal. If the judgment is revers- 
 ed, and such a judgment given as the court below ought to 
 have entered, the appellee will be precluded from thti be- 
 nefit of his bills of exceptions. 
 
 &ftin, in reply, was stopped by the court. 
 
 
 
 JUDGMENT REVERSED, AND JUDGMENT POR THE APPB*,- 
 LAXT ON THE VERDICT, &C. 
 
 Sairra, et al. vs. THK STATE* DECEMBER* 
 
 APPEAL from a decree of the Court of Chancery. Bill K n J ';. e acts of 
 
 tonfi^patir.n, ilie 
 
 filed in the name of the state, at the instance and for the^^^Ji;];^ 1 
 use of Carroll and Maccubbin. ^J^A-o,^- 
 
 rated without of- 
 
 HANSON, Chancellor, decided, that by the act of Oetobt rV,'y, ''.,1 'oik"' '," 
 IT&O, ck. 45, "to sfi'/.o, confiscate and appropriate, 411 "fch 'equitable in : 
 Rritiah property within thia state," ;md the act of the same J'-sniv, r 1( t mail 
 
 . . liif,"iiftet the tiea- 
 
 session cn, 49) "to appoint commissioners to preserve con- fjrrfvw** 
 
 /irilish property,'-' the equitable interests of British 
 subjects in lands were confiscated without office found* or 
 entry or other act done, and although such equitable inte- 
 rests were not discovered until long atrer the treaty of pt-uae 
 between. Great Britain and the United Slates. '^Scetht dc-
 
 47* CASKS IN T1IK t 'M !iT OF APPEALS 
 
 1JQ9 tree of thr chancellor, as reported in 6 Cranch, 286.] From 
 
 v - > "~ v "^ Tiiat decree the liefeini : ited to this court. 
 
 
 
 The car.- .it'll before CHASE, Ch. J. B. 
 
 Ni' I G IT, J. by 
 
 \ 
 (Attorney (inieral,) for the Appellants; and by 
 
 /> for the Appellee. 
 
 DECREE AH IK 
 
 'J|ic appellants bnv^lit a writ of error to the Supreme 
 Court of the Unite<l Mulct* where the decree of this court, 
 aiurmin^ fh.it of the court of chancery, was aflirmed. 
 6 Cra/icA, 
 
 Tut ATTORNEY-GEXERAL vs. JARRETT. 
 
 APPKAI. from a decree of the Court of ( 
 ' ><,' the lill of cmiHilaint which v _'it in the 
 
 '.i'".'!i. fl ihL' namc * tjic / fr' r '"V/ (if')ir.i-<tt, at the relation of //.,/, to 
 i:it tibtained by Jarred for a tract of land call- 
 VT'w^e'l BefgraJe. The facts h the case were these: T.i 
 
 '.indK/rt'or^ /*//<N On the !3i]io!M% 1794, A 7rtrT// retunu'd 
 i certificate of survey to the Ian. I o.Tice, for the land call- 
 
 irt. J ft J. i n , , /,. *~ .> , 
 
 tidcu-<!iii.-ini>j eel BtigradCi (lln- first,) containing 10.SO acres. On the 
 :)th of February 1793, H cvt obtained a proclamation war- 
 
 t-nnt-d a pnip|- . 
 
 MMHonwmntnn rant thereon, no person baring proclamatcu tnecertin 
 
 ... 
 .,i,.i MiMOn the 2-2d ot May 1793, West returned a certificate, un- 
 
 Jt 4'. ai.rl 1. 1 < u 
 
 lr his proclamation warrant, and called the land The 
 
 A>/i, conlaiiiin^ -2J8 acivs. On (lie 9th of May \ 
 .:'!,*,; tlie coiTi|)osi!i(in !.v)iH-y v.;i- paid by IVe.xt. On the 3d of 
 .,;.;. tune. 1799, Hrs/'.i cerlii; ited by .9. J,t 
 
 in the 10th of Felmutry 1800, the judge of the land <,f- 
 !C!' U V i':e, on a hearing uf the caveat, pis^eil an order for cor- 
 
 e, by excluding part of a tract of land 
 
 ii!-nl* v. hii;h appeared to b- 
 
 i'Mi'-d ill the certilicate of Tlie //,"r/,v/.//j. On (In- .101 !i 
 of June 1800, a corrected certificate was returned bv Jrr.9t. 
 
 raaii-1 I.-, ili- 
 
 ^-.containing '200 acres, excluding 28 an -.--. j.ntut John- 
 iiiri.Mi .hi.'rcr a 0n ' s : ,,-nt. On the 10th of October 1800, the 
 
 > K'.ii.l Hi 
 
 (ed certificate was caveatcd by J. Jar ret t, the il 
 
 * 
 
 >.i the uarae of tb: titorm-y genera!, it the nHf 
 
 '. iliui .ri bUl Ue J>i
 
 OF MARYLAND; 473 
 
 dant; and on the 20th of April 1801, the judge of the 1809 
 land office ruled the caveat good; and a grant was refused ' * J 
 
 , , ... Altorni-y General 
 
 to West, because tnc land was included in another certm- >-. 
 
 J&rri'tt 
 
 cate, and granted to the defendant by the qame of Bel- 
 grade, (the second.) This certificate, of Belgrade, (the 
 second,) the relator alleged was younger than West's, and 
 that the grant was obtained thereon during the contest un- 
 der the caveats. That the defendant had notice of West's 
 certificate. 
 
 The Defendant's tide On the 1st of A ay 1798, A. Jar- 
 reit returned to the land office another certificate of sur- 
 vey for Belgrade^ (the second,) containing 767 acres, un- 
 der a warrant of resurvey issued on the 8th of May 1797, 
 to resurvey Wild Cat Den. On the 10th of May 1798, A 
 Jarrett proclamated his own certificate tor Belgrade, (the 
 second.) On the 29th of April 1799, A. Jarrctt returned 
 a certificate under the proclamation warrant, and called 
 the land Belgrade, (the second,) containing 92 acres, ex- 
 cluding the rest. Un the 8th of May 1799, A. Jarrett 
 compounded on this last certificate. On the 30th of Sep- 
 tember 1799, the certificate was cavcated by West. On the 
 10th of February 1800, the judge of the land office dis- 
 missed the caveat of West} and on the 20th of October 
 1800, a grant issued on the certificate to the defendant, he 
 having obtained an assignment thereof from A. Jarrett. 
 The bill prayed that the grant for the land called Belgrade, 
 issued to the defendant, might be vacated, and for further 
 relief, &c. 
 
 HANSON, Chancellor, (February term 1805J Decreed, 
 that the bill of complaint be dismissed, but without costs. 
 From this decree the complainant appealed to this court. 
 
 The case was argued at June term 1808, before POLK, 
 BUCHANAN, NICHOLSON, and GANTT, J. by 
 
 ffall and T. Buchanan, for the Appellant; and by 
 Johnson, (Attorney-General,) for the Appellee, and was 
 reargued at the present term before CHASE, Ch. J. BUCHA- 
 NAN, GANTT, and EAULE, J. 
 
 T. Buchanan, for the Appellant, cited Land Hold. Ass. 
 186, 275, 559, 362, 319, 361, 469,' and the act of 1785, 
 c/i. 88, *. 10. 
 
 VOL ii . 60
 
 CASES IN TIIK COURT OF APPK U.> 
 
 rtin, and Jf'i'itnn. ( Vttorney (icn-n! J fur t! 
 pellet', cited The Jllornry-dnicral vs. .V/iiwVr/i, 1 //,/,- ,-. 
 
 
 DEC-EMBER. "U*iii.i\M3 vs. HODOSOV. 
 
 APPKAI. from a decree of the Court of Chancery. The 
 which was filed by the appellee irilliamn, 
 
 "'.I U ''n'u.'r (the appellant,) and ./o/m Clark?, >i;ite.i that // f/ 
 
 Tit' . . . 
 
 A h.-mi (f,pn hy and Clarke entered into partnership Under the name of 
 jimpie contract ,/oAn CYarAe, $* Co. During the partnership, C/.rr/.r 
 
 <h hi rinr from itu- 
 
 irtTtncrjto.t-mu- bought goods from the complainant, (Hodgson,) which 
 
 Inr. and urifpu-d 
 
 > i,n,, i, in .,,- W cre delivered to Clarke on account of the parfm-i - 
 
 nidun of law a re- 
 
 5^' r ' n ?. f r . lh ; n rt l \" and by him sold. That the belief that JlWwi,^ i 
 ,Vm^ tl " n co"!trn h rt Irtiier, gave credit to the firm. That on the Tlh of Jnl\ 
 ^. :l w " IMli " 1797, Clarke settled with the complainant, and the .)- 
 i.l*t.T"tiK cm' cern was found indebted ^319 5, fisjinia m.r 
 cVi,'ii-"rr rrV,.* and for that sum Clurhr. j^avp bond to the complainant, in 
 ofVlTi!rr!n"rVt^ the Dames of Clarke and, ff'illiama. .'jointly a:. d se\t:rally.^ 
 
 liniple contruci ,,. , 
 
 dc-bi..iuc from. h. executed by Clarke alone, wgDeo/oAn Clarke, & Co. Iltat 
 
 mwiud for relief ^bftn ClurltC, & Co. bein;: afu-r\vards indebted to the coin- 
 in '<|uily 
 
 such honj. plainant in g598 34, and interest, for goods sold to ./ 
 
 tltfiourfi not tiin.l- 
 
 buronUiepuriwr Clarke, for and or. account of the concern, Clarke, for hii 
 
 who iliM-i not i-x- 
 
 STU'tte^T- aild HiMms,nn the 18th of November IT'.ir. -ave anotltei- 
 ^A'^mj.iain.nt bond to the complainant, signed JoJm Clarke, & Co. That 
 .'";,'!;:!,,")' Clarke is insolvent, &c. That suits were brought on t),.- 
 t^iofaj^i.Tobri- bonds in the general court against n'j///oj,:.v, and \veic 
 f"r,'ix w in"th"u',.,,* non provtcil, because that court were of opinii>n th;t cin-. 
 (netrj"" "' partner could not execute a bond, so as at law to bind his 
 copartner, unless a special authority for -nch pur|- 
 i-ti-d. Prayer for a disclosure from the defendant*. 
 ther they were partners or not, and that they may be com- 
 pelled to account with and pay the money due to the com- 
 plainant, and for other relief, ^c. The <m*u-tr ot 
 limns stated, that he and Ctnrkc entered into partnership 
 in October 1795, for threv yearn, in the miUin^ and dis* 
 tilling business. Clarkr was directed not to puc 
 merchaml>7,e on ll'itliamtfs account, and he believes that 
 Clarke sold goods on h'n own account, lie due* not know 
 whether or not Clarke bought gomls on the partnership ar- 
 CQunt, and if he did, the answer insisted that the dtlv u
 
 OF MARYLAND. 475 
 
 dant was not liable. That he knew nothing of the settle- 1809 
 racnt or execution of the bonds. That suits were brought 
 on the bonds, anil non pressed, as stated in the bill, and 
 that Clarke was insohvnt. That the partnership was dis- 
 solved in 1798. Clarkt was thy acting partner; and the 
 defendant never bought any goods for the partnership, and 
 he does net know the consideration of the bonds. 
 
 Testimony was taken under commissions issued for that 
 purpose. 
 
 The answer of Clarke, put in after all the proof was 
 taken and returned, admitted all the facts alleged iu the 
 bill. 
 
 KILTY, Chancellor, (February term 1806.) The ob- 
 jects of the bill, as stated therein, were to have a disclo- 
 sure from the defendants, whether they were partners; to 
 compel them to account with the complainant, and pay the 
 money due as charged in the bill, on account of goods 
 sold to them, and to obtain other relief, 
 
 As aground for relief, the complainant states, that dur- 
 ing the continuance of the partnership, Clarke gave a 
 bond to him in his own name, and that of WilliaMSt for a 
 balance due on account of goods sold to them, and after- 
 wards another bond was given on a similar account, on 
 which suits were brought against iniliams in this state, 
 and non prossett, on the ground of such bonds not binding 
 him at lav/. 
 
 The answer of Williams denies the partnership to the 
 extent alleged by the complainant, and does not admit the 
 purchase of the goods by Clurke; the settlement or execu- 
 tion of the bonds. It admits that Clarke is insolvent, and 
 that suits were brought on the bonds, and non pressed as 
 stated in the bill. 
 
 The defence set up is, that the remedy, (being for the 
 price of goods sold.) is at law, and that it is not a case fur 
 relief in equity, and that the bonds relied on as a ground 
 of relief by the complainant, are not proved. And it is 
 also contended that an iisue should be tried as to the part- 
 nership, &c. and that the question of law should be sub- 
 mitted to the judges. 
 
 The counsel for the complainant relies on the facts dig- 
 closed in the case, to support the jurisdiction and the re
 
 CASES IN THE KiruT OF 
 
 1809 lief praved fur; and also contends that the demand being 
 against tin* defendants as partners, gives tin- c >urt of equi- 
 ty a concurrent power with a court of law; ami so as fo the 
 prayer for a discovery. 
 
 Upon tliis question of jurisdiction, tin- case is attended 
 with considerable difficulty, UK! the authorities on the sub- 
 ject have been carefullv examined w'uh a view to its deci- 
 sion. 
 
 The position laid down by the complainant is certainly 
 too broad. A prayer lor a di-rnvery, winch is maile a purt 
 of every bill in calling on the defendant to ai. not 
 
 give a jurisdiction in every case, nor can the circumstance 
 of the defendants being; partners give such jurisdiction in a 
 case purely determinate at law. 
 
 If therefore the complainant had merely stated a 
 and delivery of goods, and had brought his bill to 
 the price, or if instead of a bond, a note unsealed had I 
 given by Clarke, the complainant would not have be< 
 ill advised as to have prayed for relief in this court, or it" 
 he had, would have failed to obtain it. 
 
 But there are circumstances in this case which, under 
 the principles recognized by courts of equity, incline the 
 chancellor to think that the jurisdiction may be sustained. 
 
 It is certainly desirable that the boundaries between the 
 courts, as to their jurisdiction, should be prescribed, but 
 they are not in all cases to be dearly discovered, and a 
 writer of eminence observes, that "to strike out the distin- 
 guishing principle upon which courts of equity in such 
 cases have proceeded, would be indeed extremely useful. 
 but that after having given considerable attention to the 
 subject, he found himself incapable of reconciling the va- 
 rious decisions on it." 
 
 In addition to the maxim, that matters of accoimt.f,-ati<l 
 accident and mistake, are proper objects of a court of equi- 
 ty, there are other principles which require to IM? consider- 
 ed in viewing this case. Although a court of equity will 
 not generally give relief where the party has a remedy, or 
 the matter is properly determinate at law, yet lo prevent 
 such relief, it must be a case which can be fully invi-oi- 
 gated, and receive a complete and effectual deci.-ion in .1 
 court of law, and the remedy there must be clear and cer- 
 tain.
 
 OF MARYLAND. 4,77 
 
 In many cases a court of equity will exercise jurisdiction 1 809 
 although a remedy might be had in a court of law. 
 
 There are some cases in which, although (he complain- ? 
 
 Hou^tuu 
 
 ant might have a remedy at law, a court of equity having 
 obtained jurisdiction for the purpose of discovery, will re- 
 tain the suit for the purpose of giving relief; and if this rule 
 was more general than it is, it would only be an extension 
 of the principle in bills for account of assets, which are 
 stated to have been originally only bills for discovery, 
 which could not be had without an account, but on which 
 the courts of equity have made complete decrees, and given 
 the party his debt likewise. 
 
 Equity jurisdiction is exercised to put a bound to vexa- 
 tious and oppressive litigation, and to prevent a multiplici- 
 ty of suits. 
 
 It is exercised where the courts of ordinary jurisdiction 
 arc made instruments of injustice. 
 
 A court of equity will lend its aid whenever by fraud or 
 accident a person is prevented from effectually asserting, 
 in the courts of ordinary jurisdiction, rights founded on 
 principles acknowledged by those courts, and where par- 
 ties by contract have given a right, but have not given a 
 sufficient remedy, and in the case of defective securities 
 for money. 
 
 The present case may. not perhaps come under, the scope 
 of ail these principles, but there are some of them which 
 appear to be applicable to it. 
 
 Without stating particularly the evidence in the cause, 
 the chancellor is satisfied of the existence of the partner- 
 ship, as alleged by the complainant, and of the liquidation 
 of the balance due for the goods sold, the execution of the 
 bonds as slated, and the event of the suits on them. With 
 regard to the answer of the defendant, Clarke, it is consi- 
 dered, that the partnership being proved by other testimo- 
 ny, his admissions are evidence in the eamc manner as his 
 acts would be in the exercise of the joint business of the 
 firm. And it may here be observed, t';iat the responsibili- 
 ty of one partner for the acts of another, is not, as stated 
 by the defendants' counsel, a principle otskccr mercantile 
 law, but is founded in justice and necessity, and is inse- 
 parable from the nature of partnership transactions. 
 
 It appears that Clarke executed the bonds with a view of 
 ascertaining, and perhaps of securing in some dcgcce, the 
 balance due for goods sold to the company; and these bonds
 
 ( VSES IN TUI. * 01 ;;r OF AITKAI 
 
 1&09 xrcrc taken by the complainant iVoui a /.. 
 
 .. it eU'.-it. 
 
 if notes had 1-een v,t\en by (/;'.'/.., \\ iiliin.it i-,l, as m 
 the iv , nnei>hip l>:td brm piov- 
 
 eil, they would have been on the defendant, 
 
 irUliviitS. at law. Tin 1 bonds i.u;;;:.t in- riiM-ideied iu 
 equity as less solemn ami obligatory than the notes, but 
 M>'dv souht for on the bor^!- ! by v.h-it 
 
 nloi-u a ahtcr principle i.f law. Ko 1 ' if it bi v j; 
 a. the chancellor conceives if to bo, th.it the ilttVnilant, 
 ll'i'l., iiiiblc, anil nii^ht have m-eii boniul !;, 
 
 \vithoiit seal, for the sanu' amount, the ilefnice ?>ft uj> 10 
 tlie bond- was i.ot an tnuitable or i-i.n-Lii-iitii:i. one. 
 
 Iu this respect then the court of Ia\v, or (as expr- 
 iu one of the pritu iplca above stated, j the court of ordinu- 
 
 .nsdiction, h;ts been made the instr'inii'nt of inj'i 
 15\ the (trr'ultnt. <\^ it may be termed, of the balance <i'ie 
 being v.'tuivd by l>omU, the coniplaiiiant u.i> , 
 from asserting in a court of law the ri-Jit of 
 money due to him on principles acknovvied^v/d by uli 
 courts. 
 
 The parties who purchased the 0!:iU havo, by the u- 
 ihorised acts of one of them, ;iveu (by their ton!' 
 a right \o the money admitted thereby to be due, but h.i\e 
 p\rn a uMiifdy insufficiLMit at lav, by sttJiitics, iu that 
 el, dvlective. 
 
 It is alleged, by the counsel f,r the defendants, that the 
 complainant, if the money is due to him, I, an a full and 
 adequate remedy at law; and to prove this, he contends 
 that the bonds an: not an extinguishment of the o; 
 contract. If the bonds v. ere obligatory on dark?. (\v|,u!i 
 >>eeins to be admitted!,) it i> ditT.ciilt to :;\ how the 
 nal contract, which v.asa joint one, remains unimpaired, 
 or ln>v. ( !:/, ! -L-M ut, would be liable on both. 
 
 If fin iib-c'.'j'e i!i-( i-ion on 
 
 it world ap|K-ar i .>n-.-i:;ir.t t:> u-a-...:i t!iat an un'.iipidateil 
 claim, sounding in dam . . ,d lie e\tin-ui,hed bv tho 
 
 acceptance of an ij*trument of a higher nature, which 
 fixed the amount. Jiut this to be left iu doubt, 
 
 has the defendant succeeded in show in- that the complain- 
 iitit'-, reiatdy. (supposing him entitled.; would be dttir and 
 
 (~u JHe hronpht a suit at law on such a note executed l>y (.'lurkc 
 If. Co. .. . .ltd juil^iu-
 
 OF MARYLAND. 479 
 
 c.erftif:i in a court of lau% or th;t it would there be fuliy 1809. 
 investigated, and receive a complete ami effectual decisi- 
 on? 
 
 If equity jurisdiction mnv he exerciso.d to put a bound 
 to vexaiious and oppressive litigation, and pi-event a multi- 
 plicity of suit*, it is not necessary to send a party to a 
 court of law, where the remedy, if to bft attained, would 
 be the same; and in this case it may be inferred from the 
 evidence of ,/. Riddle, that if instead of bonds, notes un- 
 sealed had been given, the same recovery would have 
 been had as in Riddle's case. And the same principle, in 
 addition to the disci etionary powers of this court, will ac- 
 count for the chancellor's not apply""? to a court of law, 
 as was suggested by the defendants' counsel. 
 
 The complainant has already tried his remedy at law, 
 which has failed, as much at least through the fault of the 
 defendants as his own; and it is not clear but that a suit 
 in this court might have been originally sustained on the 
 ground of Williams not being bound in law by the bonds, 
 though in that case the opinion of the court or the judges, 
 as to the law, might have been resorted to. 
 
 In the case of a joint bond it is a constant practice, in 
 case of the insolvency of the surviving obligor, to commence 
 a suit in chancery against the representatives of the other 
 party; and although this arises in part from the acknow- 
 ledged jurisdiction, as to administrators, &c. yet it is 
 grounded also on the situation of the parties rendering the 
 remedy of the law ineffectual. 
 
 With regard to the part of the bill praying for a disco- 
 very, it may be further observed, that as the binding of 
 Williams, by the bonds of Clarke, is alleged to have de- 
 pended at law on the assent of Williams, an acknowledg- 
 ment of such assent might have b*i-n expected by the com- 
 plainant on filing his bill, which might have been a reason 
 for filing it. 
 
 The chancellor has stated 1m reasons at greater length 
 than may be usual or necessary in such cases, on account 
 of the doubts which he entertained at the trial. These 
 doubts have been removed by the further consideration 
 which he has given to the subject; and his opinion is ground- 
 ed on the principles which he has stated, and on his deter- 
 mination, that where the merits appear to be with the com- 
 pUiuaut, he will out dismiss a bill on an allegation of the
 
 480 CA>KS IN TUB COURT OF APPEALS 
 
 of j-MUdirtion, or any other similar objection, > 
 it is Hearly and poMti\-ly iv-tabli-linl. Drrrenf. that the tlc- 
 l'' !!(!;i;1 ^ l"y <" the complainant the sum of 
 current money, with interest thereon, \c. ami tin- < Mtl .t 
 this suit. From this decree the defendant, IVilliums^ ap- 
 pealed to this court. 
 
 The C2UM- \v;t> ni^'i-'l before C MASK, Clu J. BUC-IIA- 
 -VAX, (JAN-IT, and EAHLI., J. 
 
 <S7uz<7^*and MagruJcr^ for (he Appellant, contended, I. 
 That there vns no legal proof of a partnership between the 
 appellant and Clarke. 2. That if the appellee had any 
 right to recover against the appellant, his remedy, from the 
 proof in the case, was at la\v, and not in equity; and 3. 
 That the appellee had no right, either at law or iu equity, 
 to recover against the appellant. 
 
 On the yir.ii/ point they contended, that the answer of 
 one defendant was not evidence against another defendant, 
 and cited 1 Ilarr. Chun. TV. Sfi, -41. 
 
 <>:i the second point, they cited Dorsey's Ex'x. vs. Dor- 
 sr.y'a EJC'TS. (a}. They also contended, that there was not 
 
 (~f'J The case of Dorset/'* / Vs. in the court 
 
 of chancery at Kebnary t -r:n 170-1, appears to be this: H. T. vrilh 
 J. D. his ... cntcd their joint bond to K. U. in 1758, : 
 
 :>!>k- in 1769, arrl in 17.J3 a join' .suit w:is brought ivp.iiiiht tin/in at 
 law upon t!io hon-l. During the pendency of the suit, J. L). <i 
 liis ted, I i'ld.^inent by coitfcssiou was rrii. 
 
 cd a^yiinst U. T. in 1790. 'I'hc suit continued against J. 1). and in 
 1791 it was entered aliotrd. U. T. obtained a discharge under the 
 insolvent law in 1788, and bis tnistc-e snM [r. '"K"' 11 ^ to 
 
 the insolvent, on a credit, more tlian sullic'u-nt to p.iy all !, 
 It. T. w.i ie dfbt sued for, until and :.ftcr T86, 
 
 but no TI TC taken for its recovery until thn above 
 
 was l:ro:iglit. The execiHors of J. D. tad fully administered aiuj 
 .v all tbc I d; but thfv liad notice 
 
 from K. I), -oi'l ?i (k-Mi.iiid of jxiynu-nt. u;i^ nm-lc of them n-ithiit 
 one year nf\.;r t!., dt-aili of .1. 1). A bill \v:,s fil.'d in rlianccry in 
 1792, by K. 1). (:.nd on hisdraMi revived in the name of his cxe- 
 rntrix) a^.iinst th CM-i-iitore of J. I), to b<_- |>:ti.l the debt due on 
 the- Jio-i'l. T. . , .lonjj other tlu'iujs, in their answers, 
 
 relied upon the act ot limitations. 
 
 IF \f-inv, f'lianrc-Hor. On cverv application to this ronri. 
 Pfroundfd on positi\t- law, wln/n it a] ' no fornn-r 
 
 is in all points applicable t the- pi , the- principles* OO 
 
 which the court wa* originally in-tiinti-il, an- to be ronsiiK-ri-d. Its 
 jurisdiction, from the bopinnin. ' HK 
 
 "imvi rtf law, in olihgiii^- 
 
 them to ' 
 
 of .-v.-ry kind, either express or implied, and in r. '. 
 '.-nt. Hn' it never yet has l>ren the i 
 ness cf tlii court to compel men to do that, which neither they,
 
 OF MARYLAND. 
 
 sufficient proof of the execution of the bonds stated in the 1809. 
 bill? that the originals ought to have been produced. 
 Pcakc's Evidence, 06. Wymurk's case, 5 Coke, 74. 2 Com. 
 Dig. tit. Pleader, (P. 1). Harper vs. Hampton, I Harr. 
 4* Johns. 710; and Dasobry vs. Terrier, (ante 219J. 
 
 Oo the third point they contended, that the execution of 
 the bonds extinguished the simple contract debt, both as to 
 Williams and Clarke. They cited Buc. Ab. tit. JRelease, 
 (G.) Bull. N. P. 155, Chiefs Plead. 155. Clement vs. 
 Jlriish, 3 Johns. Cos. 180. Picrson V8. hooker, 3 Johns. 
 Rep. 70. 4 Fm. .46. 387. 1 /bnW. \\T,(note.) 2 Co?n. 
 /)*. tit. Chancery, 476, 330, 331; and Tom vs. Goodrickj 
 2 Johns. Cas. 213. 
 
 nor the persons whom they represent, have engaged to perform, 
 which the positive laws of the land do not enjoin, aud which equity 
 and good conscience do not demand. In some cases, indeed, which. 
 dad not appear to come under known established principles, or to 
 be embraced by former decisions, chancellors have exercised their 
 ingenuity in raising agreements by construction; provided never- 
 theless, that the performance of the thing, thus supposed to be 
 contracted for, might fairly and reasonably be demanded. Hence 
 it is that the condition of a bond to pay money has been construed 
 an agreement, which equity ought to enforce, after the obligor lias 
 been disciiarged from the penalty at law. How far the first deci- 
 sion in such case was right, is perhaps questionable; for this plain 
 reason, that the obligor was not, and could not be apprized of the 
 power, which equity would afterwards assume, of compelling him 
 to do that, which he never in any manner contracted to perform; 
 the operation of a joint bond at law being this, that during the lite 
 of both obligois it is binding on both, and, after the death of one, 
 the obligee can have recourse to the other only. However, the 
 determination in the case of Bishop and Church, 2 Fes. 371, cited 
 by the counsel on each side, must now be recognized as a law or 
 rule for this court; and whether that case applies sufficiently to the 
 present is to be examined. 
 
 The two cases appear to agree in every point, except one; but 
 that one point, in which they differ, is important. In the former 
 case, executors of a joint obligor were called on to pay money 
 lent to the testator and the other obligor, who were partners in 
 trade, and the constructive agreement of the testator, was on a 
 substantial consideration. But, in the present case, the executors 
 are called on to pay money which never was, or intended to be, 
 participated by their testator. The constructive agreement 
 therefore, on which alone this court could decree against 
 them, was voluntary, and such as, without special circumstances, 
 ought not to be enforced. What then are the special circumstances 
 of this case? To say nothing of the lapse of time, and the neglect 
 of the complainant. He has it still in his power to obtain the debt 
 from the trustee of the surviving obligor. In short, it appears to 
 the chancellor, that a decision in favour of the complainant would 
 go far beyond any former determination, and that former determi- 
 nations, with respect to joint obligors, have gone quite far enough. 
 On the point relative to the act of limitations, it is not necessary to 
 decide Screed, that the bill be 
 
 VOL. II, 6-1
 
 CASES IN THK COURT OF APPEALS 
 
 A" 1 //, anil Johnson. (Attorney General,) cited 
 Part. 40, S3r, 458. Ilizgins's case, 6 infer. 4(>. Abbott 
 ts. Smith, 2 II'. }}/k. ftcp. 050. Maihloi vx. Jar k sort, :^ 
 Jtk. 40G. Darn-cut vs. Itulton, 2 Jtk. 51: and lith. 
 Coin. 45G. 
 
 CHASE, Ch J. ilelivered the opinion of the court. The 
 court have considered the bill, answer and proof, in this 
 tiise, the arguments of counsel, and the decree of the 
 chancellor; and admitting the proof to be sufficient t 
 iablish a partnership between Jfillimns and Clarke in th 
 extent charged in the bill, in opposition to the answer of 
 the defendant, and admitting alo that the bonds mention 
 cd in the bill, as executed by Clarke, under the signature 
 of Clarke fy Co. have been fully proved, it appears to the 
 court that the complainant i? not entitled to any relief in 
 equity, and that the decree of the court of chancery ought 
 to be reversed. 
 
 It is a principle recognised by the courts of law and 
 equity, that a bond given by one partner for a simpK 
 tract debt due from the partners to the creditor, and ac 
 cepted by htm, is by operation of law a release of the other 
 partner, and an extinction of the simple contract dc!>r. 
 
 It is also established by the courts of law and equity. 
 lliat ignorance of the law, as to the legal consequences re 
 suiting from such a bond, cannot excuse or form a ground 
 for relief in equity, on the suggestion and proof that the 
 party was mistaken as to the legal effects of such a bond, 
 imagining at the time that it could not operate as a rcU-u-r 
 to the other debtor, and that his responsibility still ex- 
 isted. 
 
 The court are also of opinion, that the bond;} set forth 
 in the bill, although not binding on Williams, are obligato- 
 ry on Clarke. 
 
 On these grounds the court decide, that the decree of the 
 court of chancery ought to be reversed. 
 
 BUCHANAN*, J. I consider the partnership, alleged in 
 this case to have existed between the defendant* below, as 
 sufficiently established to the extent charged in the bill, 
 and that the delivery of the goods and merchandise. 
 to have been sold to Clarke, as acting partner, i* fullr 
 proved.
 
 OP MARYLAND. 4-83 
 
 But if the bonds charged in the,bill to have been passed 1809. 
 by (,'larke, in behalf of Williams aod himself, were exe- 
 cuted by him for the amount of those goods, the simple 
 contract debts were not thereby severed, and continued 
 open as to Williams, and destroyed as to Clarke, (on 
 whom such bonds would be obligatory;) but being respec- 
 tively joint, they became in law extinguished as to both. 
 And though equity will interpose its aid where a remedy is 
 wanting at law, the demand continuing, yet it cannot re- 
 vive a debt which in law is extinguished. 
 
 If, however, such a bond could be construed to extin- 
 guish a simple contract debt as to the party signing it only, 
 leaving it open as to the other partner tor the interposition 
 of a court of chancery, yet in this case the complainant 
 has failed in proof to lay a foundation for a decree against 
 71 illiamsi for, as against him, the bonds in question which 
 are set up in the bill as the very ground of the relief pray- 
 ed, are not proven by any legal evidence exhibited in the 
 record; and it cannot be seriously contended, that in the 
 absence of such proof, the chancellor could hold jurisdic- 
 tion over the case; for if no sucli bonds were executed by 
 Clarke, the simple contract debt remains unimpaired, 
 and the proper remedy is in a court of law. 
 
 Upon the whole, I am of opinion that the chancellor 5 * 
 decree, however consonant to strict justice, ought to be 
 reversed. 
 
 DECREE REVERSED. 
 
 HALL vs. GRIFFITH. PEOEMBKR.' 
 
 APPEAL from a decree of the Orphans "Court of Harford An ndministra. 
 
 <f tor mtut com ply- 
 
 COUnty. Griffith, (the appellee,) together with his wHfeS^rphJJJ*^ 
 Cordelia, since deceased, representatives of John ft. Hall, ?il"p" r so,,Ves?i.te 
 deceased, by their libel, exhibited on the 18th of 
 
 <J> bts, and caiuiot 
 
 retain the property a; the appraised value, on pajing the debts out of bis own futids to lUe amount 
 of the appraisement. 
 
 After piijiuciii of the debt* of the deceased, and all leRal ousts and charges attending the adminis. 
 :rati( 11, thf administrate-.- must deliver over ibe residue of the (icnoyal titate sja'CfieJ'y to tbe re- 
 presentatives of thf ilrc-east-d. 
 
 When- an adimnistmun- retained a part of tke personal estate of tjte defeated, at tbe appraised, value, 
 and >lr! a part tor the heiifti t of the tsiute, am! a part as his own propert) Hud, that he must ao 
 ,'onnt for th,e. increase of tin- slaves, and lor the u.-. labour and hirs of all slaves retained or hired by 
 him ; ami \\here one of tbe slavi s had nip away, he inuti accm.iit for tuvh slave at the appraited va- 
 Jue, unless he used all reasonable endeavours to regain ytiuti of meh slave. He i to be allowed 
 Jor money expended in i-.oiiung and maintaining surh of the ^lato ai \\ere unable to work, and in 
 'bringing. "Pi clothing, fee. Up intreasi of s'avri, so lonfj as ihey coniuiut-d y charge. Also ibr all 
 d<-lm paid; for hi comniiftion, anil nil k^al costs He U to he chnrped with the amouilt Ot lilt iurea* 
 ou tUc >i. ul' i.Ut piupt-r
 
 4-34 CASKS IN THE COUUT OF APVEALS 
 
 1809 bor 1, C 05, alleged to the orphans court that Jlquila Hull, 
 (now appellant.) the administrator D. D. N. of John B. 
 //(///, had made sales of numlrv slaves and other articles, 
 belonging t the estate nt' the. decea-ed, and had never ac- 
 counted for the amount of the sales, hul only for the amount 
 of the ppniMinent. That the saks greailv exceeded the 
 amount of the appraisement. That he retaiiu'd in his hands 
 sundry articles belonging to the estate, and has had the 
 use, profit and labour, of sundry of the slaves, for whu h 
 he never accounted. That sundry of the slaves have had 
 increase, which remain in his possession unacountcd for. 
 Prayer for an account, &c. Hull, hv his answer, slating 
 that lie was appointed administrator dc bonis non of John 
 B. Hall, some time in the year 1790, admitted, that before 
 he obtained an order from the orphans court for that pur- 
 pose, he had sold sundry articles liable to waste, c. on a, 
 credit, amounting, according to the appraisement, ' 
 8 1, and according to the sales to '.><> 1!) G, a part of 
 which he had not received, owing to the insolvency of the 
 purchasers. He admitted that he received sundry slaw-, 
 aiid other articles, as stated in the inventory, amounting to 
 .17 -.1 2 4. That he obtained an order from the orphans 
 court to sell as much of the property as would pay the 
 debts of the deceased, and it was understood, between the 
 court and him, that it was discretionary to sell or not, ow- 
 ing to the difficulty of selling property at that time for 
 cash, and the order did not authorise, him to sell upon crc^ 
 dit. That he sold some of the slaves, and if he had sold 
 all the property in the inventory for rash, it would not 
 have discharged the debts of the deceased; and under that 
 impression, and to save the real estate from lining sold, lie 
 paid the debts out of his own money, and retained the per- 
 sonal property for the same. That upon settlement of his 
 accounts with the orphans court, they would not allow him 
 to charge the estate with an\ interest, after IS months, 
 from the date of his letters of administration, although he 
 paid considerable sinus of interest after that time. That 
 one of the slaves had run away. That he had paid, and been 
 allowed by the orphans court, debts and commissions to a 
 considerable amount more than the appraisement, vi/,. 
 8'2() 15 11. He admitted the increase of some of the 
 <-!ave u , and that such increase was in his possession. That 
 he was at considerable expense iu supporting old, infirm
 
 OF MARYLAND. 485 
 
 slaves, nnd in bringing up, maintaining and clothing, the 1809. 
 increases and that he had since sold sundry of the slaves 
 as his own property. The orphans court decreed, that 
 Hall ought to account for the sales of such part of the es- 
 tate of the deceased as he had already sold, and that the 
 residue of the estate, as contained in the inventory return- 
 ed, he could not retain and keep at the appraisement, but 
 that he ought to pursue the order of the court of the 9th of 
 A'J;ust 1791, which directed him to sell so much of the 
 personal estate of the deceased, as might be sufficient to 
 pay the debts. From this decree Hall appealed to this 
 court. 
 
 The cause was argued before CHASE, Ch. J. BUCHANAN, 
 NICHOLSON', GAKTT, and EARLE, J. by 
 
 Martin, for the Appellant; and by 
 
 Johnson, (Attorney General,) for the Appellee. 
 
 CHASE, Ch. J. delivered the opinion of the court. The 
 court are of opinion, that the appellant, as administrator 
 dc bonis non of John B. Hall, ought to have sold at public 
 sale, pursuant to the order of the orphans court made on 
 the 9th of August 1791, as much of the personal estate of 
 the deceased as would have been sufficient to discharge and 
 satisfy all the debts of the deceased, and all legal costs 
 arid cliprges attending the administration, and ought to 
 have delivered over the residue of the personal estate, 
 specifically to the representative of the deceased, the libel- 
 lant in this suit; that the appellant had no right to retain 
 the personal estate at the appraisement, on his paying the 
 debts of the deceased to the amount of the appraisement. 
 That the appellant account for the increase of the negroes, 
 and for the use, labour and hire, of all negroes retained or 
 hired out by him, and that he account tor negro Corbin^ 
 (who ran away,) at the appraised value, unless the orphans 
 court shall be satisfied that the appellant used all reasona- 
 ble endeavours to regain possession of that negro. That 
 he be allowed all sums of money necessarily expended by 
 him in clothing and maintaining such of the negroes, named 
 in the inventory, as were not able to work and maintain 
 themselves, and in bringing up, maintaining and clothing 
 the increase of any of the negroes, so long as they con- 
 tinued a charge. That he be allowed all sums of money
 
 t ASE5= IN THE LOtKT OK AI 
 
 p,v.l by hirrt to t^ic en I, his commj> 
 
 MOM, and all I' That lie he charged 
 
 with flu- amount of the inventory, exclusive of tin 
 \vith (lie sum ^ained on the sales thereof: \\itii die amount 
 of tin ; \vit!i di!> -I liy him; and tli.it 
 
 an account be iak.cn and ma'.ie out in conformity to the 
 principle* and directions herein Mated. Tiiat tin 1 nppel- 
 l.in t proceed to it'll at public sale, for rash, a.s much of the 
 personal estate as may be nerr-,u \ to defray ai.il 
 auy balance which may be due to the creditors ol the de- 
 ceased, ami the appellant, on a settlement to be made, jur- 
 suaitt to the principles aforesaid. Dunul, that the ' 
 .J the orphans court be reversed, and that that court pi' 
 without delay, to compel the appellant, as administrator 
 tit bnnis non of John 1L /////, to set'lo the estate i;i con- 
 formity to the principles set forth he-rein, and that the ap- 
 pellant deliver over to the appellee, the negroes uhu 
 remain in liis hand? after siMilin^ the otate in (lie manner 
 directed: and that the appellant pay tu the appellee 
 the coats by hint incurred iu this court. 
 
 DfcfKKK Kl , .SiC. 
 
 DECKMR>R. UOFK.NHV vs. BAKI ;i. 
 
 when- a bin i APPEAL from the Court of Chancerv, (lt*missinir the 
 tr,d iu i-(,;iM <-i>. 
 10 **i "i" 1 ' 'i' 1 bill of the complainant, (now appellant.) which was filed 
 
 attnui n ufiTtv i>*'- 
 
 ; .,;',,",;', ' on the Jih of April 1802. The object and nature of the 
 *r"nUi, th on''7h r ^ bill is stated iu the decree. 
 
 J.r,.| M .,t ol Irjllll 
 
 , ! , "nLh'l KII.TY, Chancellor. (July ten.. The object of 
 
 Ji^'Jkw":- the bill, as stated therein, and in the argument* of the 
 
 ' ***** i i r i 
 
 jei.cot tnnui.iif counsel, is to set aside and annul the decree heretoiore ob 
 
 dnmM*Ml t 
 
 tained bv the defendant asaniHl the complainant, in thia 
 
 OllB., , 
 
 .oiirt in October 1801, on the ground of fraud practised 
 
 iiv the defemlant in the obtaining that decn 
 
 It become.-* i.ere--ary therefore to examine how far 
 
 ;! legation is supported by the e*. idence in the present .-nit. 
 This con>Hts of the plot returned, by which the. complain- 
 .i.t c'liiu'iuU, that it appears the locations of the lands in 
 
 ..iiim\-r*y are different from what they were represented 
 t>> be in the former ca-f. 15ut tliis circum- IIJK.-- 
 
 iii^ ',t tub.-, clearly established, doc? not amount to a |>n".t 
 of fraud as to the former Uecrce. One part of the testi-
 
 OF MAHYLAND. 487 
 
 ttion}', admitted in the former case, was the deposition of 1809 
 John Foster, which the complainant alleges \vas repugnant 
 to the truth; and another \vus the certificate of Bell, as an 
 assistant surveyor to Qtsti winch the complainant states 
 was agreed by his counsel to be admitted as evidence up* 
 on the false suggestion of the defendant. Of this fact 
 there appears to be no proof; and although fraud may be in- 
 ferred from a variety of circumstances combined together* 
 it is not to be presumed merely because the fact may on, 
 the present proof be different from what the evidence) ad 
 mitted through mistake, showed it to be. 
 
 It is not necessary or proper to go into the former de- 
 cree on the evidence then produced, and it must stand, un- 
 less it can be set aside according to the known and estab- 
 
 O 
 
 lished principles of this court. Decreed, that the hill of 
 ihe complainant be dismissed, but without costs. From 
 this decree the complainant appealed to this court. 
 
 The cause was argued before CHASE, Ch. J. NICHOL- 
 SON, GANTT, and EARI.E, J. by 
 
 Johnson, (Attorney-General,) for the Appellant; and 
 by 
 
 ^ for* the Appellee. 
 
 THE COURT decreed, that so much of the decree of the 
 court of chancery as dismissed the bill of complaint of the 
 complainant be tiffirmeih and that that part of the decree 
 which directs that the dismissal of the bill should be with- 
 out costs, be reversed; and decreed that the appellant pay 
 to the appellee all the cost* incurred by the appellee in the 
 court of chancery, and in this court. 
 
 DKCRKF. REVERSED, &C. 
 
 SlVGKRY VS. Tav. 
 
 APPEAL from a decree of the Court of Chancery. The , w ,^ re 
 hill filed ia the name of the Attorney -General, at the re- SJi^c 
 
 .Of survey WB 
 
 forgedf.Mtch evidence conlil hare been teemed ai1miihle> only on the ground . that if the certificate 
 wni proved to he forjfed, rhe <rnnt obtained on it wni fraudulent, anil could have no operation in 
 <uw to |im the lanil to the fjruntee 
 
 Fraud rnav h inquired into as Well at law n. in equity: and where frauds are clearly established, 
 tJu- court* of tnw nd of equity Imve concurrent jorirli'ri in 
 
 Where the fact of the furwry nf t\ certificate of survey, nnd^r the fcrn nf on wTiii'h the rlH'tndnnt 
 claimed, came (x-forc the court and jiiry cullalcraily, anil i net directly InAWHtioh, the iene he- 
 twven the pnrtiei liein^, who hnd th- ri-^ht uf pooihm to the Intitl in contrff>vry, Ihe vn-dict in 
 ikvour vi' tu Jcfcadaot, eanaot &z rcccirgU as evidence to prove thai thu tcrtilicaie was not forged.
 
 483 CA-K> IN THE COURT OF APPEALS 
 
 1809 lation of A'c !;!?? fJ>rtin:^ on the 19th of November 
 
 I, that in the year 1770, the surveyor uf liultinwrf 
 county, beiiiii 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 AYime land iti that 
 county, to enable them to contract with the commi-^iam i s 
 for the purchase of such land, James ( - surveyor 
 
 of the county, by virtue of the power and authority from 
 the commissioner?, did, on the 30th of September 1770, 
 survey and lay out for Siigery, (the appellant,) a tract of 
 land in the Reserve called Siuzrrij'y Tronfiai.' Streams, 
 containing 178 acres, and included within the courses and 
 distances described in a certificate of the courses, taken 
 fruin the original entry in the surveyor's books, &.c. "be- 
 ginning at two bounded white oaks standing between two 
 barren hills, at the end of the last line of a tract called 
 jlferninuin'is Mountain, (included,) and about \V 9 perches 
 from (icor ('.) Run, and running \\ -urscs 
 
 and distances, without calls,) "and thence \sith a sti 
 line to the beginning, containing 178 acres, arid called 
 A'ingcry's Trouting Streams. September 30th 1770." That 
 the certificate made out by Cur a \rvor of the 
 
 county, for Singery j s Trouting Streams, to be returned to 
 the land office, corresponded in all respects with the re- 
 cord 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 (lie land office a certificate of the courses of 
 Sin^frifs Tuniting Streum* different from that whirv 
 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 
 
 Thr >nrt not Mvini* <lir*cH the pirv ht if th->y lonnil thr crrtifira'r forpvl. thi nathinc pa- 
 
 rrl !>v il.r i-:-i' I ihe fact of 
 
 in ! nf l'r.ii|.l. rim. 
 
 i , . , . 
 
 I to ainwrr 
 
 ,.|f of 
 
 fr i a 
 u,or ill ;iukr mcK ilirrrv til- nrn: IC n>-- rr,i i,-r n- 
 
 ' -TTTV of < ->m..lMhd, 
 
 j,>rjiu ird in lUc Uaci ol ill*- ti*.. oi . .. j tuc cuiOj>liiM"t
 
 OF 1 MARYLAND, 489 
 
 g Streams, there is no call for "the beginning trees 1800 
 of Petticoat's Loose,'" but that the certificate returned to ^t^"" ' 
 the land office by Sin^eri/, has this expression, which the 
 
 Attorney-General 
 
 relator expressly states was forged and inserted by Sirtge* 
 ry for the purpose of extending the twelfth line of the tract- 
 and thereby taking in mure land than he was entitled to. 
 That by the certificate, as made out by Calder before men- 
 tioned, Sing-ery's Trout ing Streams is made to contain 
 ITS 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 gene- 
 ral 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 spe- 
 cial warrants obtained from the land office in the year 1793, 
 the relator had surveyed for him, by the surveyor of Balti- 
 more county , 309 acres of land, called Boreing's Habita- 
 tion Rock, and returned a certificate thereof, and that af- 
 terwards, 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 Sin- 
 gery under the false and forged certificate and patent there- 
 on, 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 Trouling 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 fa- 
 vour, from which decision Singery has appealed to the court 
 of appeals^; and he is apprehensive that the said imposi- 
 tions and forgery will be productive of endless controver- 
 sies 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 is- 
 sued, it is obvious that Singery's Trouting Streams, (which 
 included two old surveys, namely Petticoat's Loose and 
 "(a} Vide 4 Hctrr. V Mtfen. 393. 
 VOL n 62
 
 400 CASE* IN TIIK CWKT OF APPEALS 
 
 Mtrryman's Mountain and a very small piece ol'v 
 
 tould not contain more than ITS acres, ;t> mentioned in 
 
 the certificate, because bv the plot it appears thut J'ctti 
 AMorary Gr*l ' 
 
 coat s LOOM, anil Mcrrynntn .v Mountain, wen- almost c,i.- 
 
 tiguous and adjoining tracts, and there was only a 
 small vacanrv brtwren them; bnt by extending the twelfth 
 line of Singfrifx Trm'tin* .S7/-f///iv tu the Mirrvptititm- 
 "beginning trees of P&ticoatf* /,<KW." a- now contended 
 f(r by .SYrtqrri'/, tlierr 4 \\ill 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 Sinxery. Tliat 
 at the time Sinziry'ii Trotting Strcr/nm was MU \ eyed, 
 there was a rule or law of the land office prohibiting 
 surveyors from expressing calls in any certificates of sur- 
 veys made bv them under anv warrant from that oflice; and 
 that the call in the certificate of Sii>x > ' r !/' fl TrouliuL 
 Streams, is in direct violation of thut rule, as will appear 
 by recurring to the rules of the land uflue, and by the de 
 position of Cu/./cr, the surveyor, now filed. Prayer, \ 
 the certificate and patent of ^in^ert/'s Trouftng -V" 
 may be vacated, or corrected, so as to exclude the cull, and 
 restrict Singery to the courses and distances specified in 
 the certificate, and for further relief, &c. The unxn-t:? oi 
 Singe.ryt the defenilant, states that commissioners were 
 appointed by the Lord Proprietary to make sale of hi- 
 served lands, or of parts thereof, and the defendant brin- 
 in possession of two surveys within the reserves of JJulti- 
 inorc county* the one called AJerrymatC* Moimtuin^ and 
 the other called Pttlicont's Loose, purchased the same of 
 the commissioners, and he believes the two parcels of laud 
 vere reduced into one entire tract under the authority of 
 f'(tJ<ler, but not by him, for the defendant states that his 
 survey and certificate were made out by a deputy of Calif- 
 er, who usually made the surveys in the reserves of Jtalti- 
 morc. That his object in the pmvhase and survey w;u to 
 join his two tracts; and a survey he admits was made call- 
 ed Snidery's Trontitcj Xtsunns, and returned to the oflice, 
 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 cu'tith ate of that land; 
 nor does he know, admit or believe, there was any. lie 
 admits the call in the certificate greatly increases the quan- 
 tity of his land, but he states the cull was essentially oe-
 
 OF MARYLAND. 
 
 cesary <p join his two tracts together, which was the ob- 1809 
 ject of his purchase, and ifthe surveyor mistook the length c v -> 
 
 r r -. f -*U *i Sinf-ery 
 
 or line, or quantity or acres, it was not with the consent, v 
 
 Attorney 
 
 knowledge or privity, ot the defendant. He does not be- 
 liove the certificate recorded in Collier's book to be a true 
 copy of his certificate; and that Colder is grossly mistaken 
 in two important tacts, ami those facts are misconceived 
 and mistaken in the bill of complaint. That Colder never 
 did make out or sign a certificate of Sing cry's Tronting 
 Streams for the oflice, but that the same was made out, 
 signed and returned, by the deputy, and is now in the of- 
 fice, and it was usual and customary for Colder' a deputy 
 so to do with his assent, as will appear by a great number 
 of original certificates in the land office, made out at th,e 
 very period when the defendant's was, and sonxcof them on 
 surveys made in the reserves. That the certificate return- 
 ed to the office is the true and genuine certificate of 
 Singcry's Treating Streams, which was made out for, 
 and delivered to him as such, by Colder 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 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 
 Colder 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 hath inserted calls. The de- 
 fendant denies afcl fraud, combination, $.c. 'J'hat the ca'J 
 in his certificate and patent were of such notoriety, ami 
 hi.s possession o(, aud the beginning trees of Petticoat's 
 Loose were so well known to the neighbourhood, and to 
 the surveyors in the county, that younger surveys were 
 made, which called for aijd run with the line apu to the 
 call mentioned in the 'defendant's patent, as is demon- 
 strated by the location of the tract of land catted Horatio's 
 Lot, on the plot filed. That the defendant, actuated by 
 the most honest principles, made a resurvey yn his (and iq
 
 CASES IN TIIK I'CirRT OF APPEALS 
 
 1809. 170-2, and included the whole of his lands, ami returned ;t 
 *" " v ~"' cerl i lie at t; to the office, and the execs* of the number n! 
 
 acres Mas called surplus; that lit- \\;>> \\iilinjr to pay for it. 
 i.iU'-). General 
 
 and made his resurvey with tliat intent, but by reason of 
 
 the act of 1"85, ch. 81, the treasurer could not receive 
 such payment, and it was not until after t!.,- tiou 
 
 tiiat the rclator, combining and lea^um;: with Caldtr, who 
 to rover his own ncgji.uiMUT ai.d malc.onduct in office, com- 
 bined with the relatur to cheat the defendant out of his 
 land, and recommended (lie re-la tor to take up the Mirplu* 
 as vacancy, which Caldcr \\.\ to support, by throwing all 
 lilamc on his deputy, although the records of the land of- 
 fice, falsify the oath of (\<l>lcf in two es>entia! facts; first, 
 they show that it v. a* customary fir his deputies to make 
 out certificates and si-n i,U name; and secondly, that In; 
 himself, in certificates made out and si^i^d by him. did 
 give calls. He admits the action of ejectment instituted 
 in the treneral court hv the les;.>e of the relator, for reco- 
 very of part of the defendant's land, included in the i 
 tor's tract called fioreinp's Hubitation Pock, but the facts 
 never came to issue; that the case wa determined on a 
 point of law, to which a bill of exception.- was taken, and 
 the judgment of the court was appealed from, and the ap- 
 peal will go up to the court of appeals in June next. He 
 does not believe the relator is entitled in anv court of law or 
 equity to a vacation of the defendant's original giant, the 
 same cats only originate in a ill lire to ruin and oppre.-s the 
 defendant: Lmau-c if the rclator ultimately succeeds in the 
 court of appeals, a decree to coii\eya!l the ('HHM!. 
 ri^ht and title to the relator, in iVc, of all the land con- 
 tained in his patent of JJorcing's Habitation l!c>ck, will be 
 sufficient He further states, that he claims the whole of 
 the land included in his patent called Sin^cri/'s 7 
 Xlrcams; that the call was an honest one; that the tra< 
 land called Mcrryuum's .' and l'<(ttcoat':i /,oa,vr, 
 
 never did lay contiguous or close to each other, but a! . 
 lay, were located and held, as by the table of courses tl. 
 of on <he jilot filed; that the sur\ey \vas n-.ade by a deputy 
 of ('alder named Jumm ////, who made out the cei tilica: 
 was common with CWt/fr's deputies in UK . and that 
 
 fW/c/erdid not himself make the same out; and the de- 
 fendant believes the mistake exists on CaMir's books; that 
 the entry was made therein from the depu
 
 HANSOX. Chancellor, (December G, 1805.) The chan- 
 cellor has considered the petition of the defendant. It ap- 
 pears to him convenient to both parties in this cause to 
 grant the prayer of the petition, instead of having proceed- 
 ings, which would have the same effect as is proposed l>y 
 the petition, and would be attended with delay and ex- 
 pense. It is therefore ordered, that the prayer be grant- 
 ed; 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 ar- 
 gued, and submitted, to the chancellor for his tlcciaiyu. 
 
 OF MARYLAND. 493 
 
 and the call omitted to be inserted; that (lie call did exist 180P. 
 in the original, and was actually bona fide run to at the ^v~^ 
 time of the survey: and the defendant oujrht not to lose his 
 
 J . . 
 
 land from the fraud, negligence or mistake, of Colder aiul 
 his deputies. 
 
 The testimony of a number of witnesses was taken un- 
 der commissions and returned. The defendant after- 
 wards by his petition, (referring to the proceedings here* 
 in set forth, and to the action of ejectment depending 
 between the parties,) stated that the judgment of the gene- 
 ral court in that action had been reversed in the court of 
 appeals, and the record returned to the general court, with 
 a procc'lcnifo 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 
 Troitiing Streams was forged, that the patent thereon is- 
 sued was void, or an opinion to that effect. But on a full 
 and fair trial before the jury, a verdict was rendered in fa- 
 vour of the defendant, by which the fairness of the certifi- 
 cate, and validity of the patent was ascertained. That in- 
 asmuch as theie facts have happened since this cause had 
 been set down for hearing in this court, he is apprehensive 
 that hi: will not be able to avail himself thereof, without 
 the order of this court. Prayer fur 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.
 
 i \-l.S IN THK COURT OF A1TKALS 
 
 Chancellor, (July term, 1806.) The object >f 
 v * the bill i, that I'M.- . I'Hitiraie and patent of Sintri/'y 
 'ini,- \,v, </*;,y, theiein mentioned ID liavc been fraudu- 
 lently obtained, may In- vacated and annulled, en cui'ifctcd 
 ill flu- manner <.t;il-d. 
 
 It \vas lik-d on the l)lli of November 1TW, at whidi 
 time us the In /mrriu-j li;id obiaim-d a \i-nlict and 
 
 jm';ment in his favour in au ejectment for the land, from 
 vhkh X'ji^'ri/ had appealed. 
 
 Ou the I Sib of November \' <}'>, a petition was presented 
 to the late chancellor by Sini.-trt/. Matinu; the venlict and 
 and also statijij; that the jml^iniMit had been re- 
 and that on the suit b.'in;; a^ain tiiod, a verdict 
 
 s reiidercd in his favour, ;unl piavin^ that the record of 
 the proceeding! in t!>e ejectment ini^lu be takt-o a> part of 
 tin* proceedings in this r-uu.-i % ; which prayer \va graiitvd, 
 as appears by the order of December 5ib, IKO.i. 
 
 The proceeding^ liave according!} l>eon tiled, and from 
 their coMu-xion vith 1he other totimonv, the chancellor 
 lias felt considerable dirtk-uliv in forming his opinion. 
 
 Me was at first persuaded that this verdict was either 
 conclusive as to the question of (rand, or of such weight 
 as to prevent his drawing a dillVrent conclusion from the 
 vhole of the evidence. The authorities on this sul.jf. I 
 arc not very clear. The case most in favour of this nosi- 
 lion, i: Cmi'triccix! rs. Monimtnt. -2 I'n-iwn. ^."5?, in which 
 I'.ia court declared, that the question was, whether an as- 
 
 li'nent was fraudulent or not; and that tavin^; bersi tried 
 ut law there was uo room for equity to ink-rlVre; that if they 
 sliuuld relieve the phintitV, tliey must declare that not ty 
 In- fraudulent in equity which was found to be ?o at la - . 
 
 !Jt un fur: her consideration he has changed his opinion, 
 on the folldwing grounds: That the suit in tliis case rc- 
 1'encd to, havini: been an ejectment, the verdict is tiiit final 
 between the partie*, but anuthei ejc-cti.ient may be brought. 
 () MJclv furtln-r riiit tiie verdict may be uivi-n in e\iileuve 
 tin the opinion of t\\ !%. meii on the fact, but it cannot be 
 i on 1 . 1'l-^f, as that would be to defeat the object of the suit. 
 \ ! it in a court of law tb- (jue^tion of fraud n;ay be 
 again examined, it cannot be closed against a court of 
 equity, in which fraud is the great i-ubject of relief. 
 
 !i mu^t be ad'...ilU.l also, that the recynl, v.hich is <hut 
 made part of the proceedings, cannot have a greater e8ec.t 
 . uar lu this suit, t'.iua if it i.ad been astd as a pita.
 
 OP MARYLAND- 493 
 
 A decree determining the rights of the parlies might be l09 
 pleaded to this bill, and so might a judgment of a court of *^~^^ 
 la\r, but it must be a judgment which has finally deter- 
 
 Attoriiej-Uvnml 
 
 mined 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 es- 
 tablished, and that the complainant is entitled to relief. 
 
 [n addition to the particular object of the bill, as herein 
 before stated, there is a prayer for general relief, and 
 Jtoreingi at whose relation the bill is filed, is satisfied that 
 Singenfs patent should remain valid for such part of the 
 land as is not included in the patent for Boreing'% Hubi* 
 tal ion Hock, and it appears that for so ihuch the public had 
 been paid by Singery. Tt is therefore considered proper 
 in this case, and conformable to the practice in similar 
 cases, to decree a conveyance from Singe.n/ of the part 
 claimed by Boreing, instead of vacating the patent to 
 bingery, as prayed. Decreed, that Gingery 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, 
 iiow held by him under his patent for a tract of land called 
 {Singery's Troitting Streanis, A'hich is comprehended in 
 the lines of a tract of land called Boreing's Habitation 
 Rock, which was granted by this state to Ezckicl Borclng 
 on the 24th of April 1T95, beginning, &c. with all and 
 singular the appurtenances, &c. and all the right, title and 
 interest, df Singery, therein and thereto. And upon the 
 due execution and acknowledgment and recording of the 
 deed, Borc.ing 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. 
 
 The cause was argued before CHASE, Ch. J. GA.NTT, 
 and EARLE, J. 
 
 Shaaff, and Johnson, (Attdrney-Gtncrnl,) for the Ap- 
 pellant, cited Undrrwood vs. Morduani, 9, Ttr/j. 238. 
 Bright vs. Eynon, 1 Burr. 376. Fermor's case, 3 Ci>kc, 
 78. 1 Fonbf. 13, (notes.) Moses v.s. Macferlan, 3 Burr. 
 1009; and A'egro James vs. Gaither, (ants 176.)
 
 4fiG CASES IN THE COURT OF APPEALS 
 
 nid T. B> 
 
 ^-v I. '. .". ll'.-n:;. : 
 
 ww.'i. /V*. ?.-' 
 
 210. Sface vs. J/ahbolt, 2 / c*. .. liar 
 
 '!", !'\oprictar\/ vs. .h.inin.ti, 1 //arr. 
 
 A-.l/'//oi. 
 
 457. 77<e s t //c/rr. ^ M lien. G; aud Car- 
 
 re.'* j/i i j. CWe, 1 ////. <$ Johns. 570. 
 
 =E, Cli. .T. delivered the opinion of the court. To 
 the ejectment brought by the lessee of Jioreing, for Z?orr- 
 <;>^*s Habitation flock, against .V'//^TJ/, the question in 
 
 between the parties, on tlie (li.Tciont i <>n the 
 
 plot?, v.-as. v.-lif) was entitled to that part of /forcing's Ha- 
 bitation fiorl: which was covered by or included within 
 : f nj's Trotting fifrcamr.* This q'-i^stion miejit have 
 been decided on the different rorlificale.s ai nf t!.e 
 
 ich evidence as might hr jiu-d v.'/.at 
 
 he true location of the respective tracts claimed by 
 Ihe litigating parties. It appears by tin- ir-.;u 
 inony in this case, that the certificate and grant .| 
 ry's TfOi'fi Streams are older <han the certificate and 
 grant of /i or ring's Habitation Kuck, and would have a 
 preference, so far as the riinilictin^ grants interfered. 
 
 To rt'pel the defendant's defence, and to impeach hi- 
 title, the plaintiff offered to prove, that the certificate of 
 
 n/'.s Trouting Streams w.is forced, and the evidence 
 for that puij .;dinitted by the court; and such evi- 
 
 dence could not have been deemed admissible by the court, 
 n!y on the ground that if it wa proved to be forged, the 
 grant obtained on it was fraudulent, and could not have 
 ;iiiy operation in law to pa-^s the land to the defendant. 
 That decision must rest on the principle, that what corn- 
 rices in iniquity must transmit its impure or deleterious 
 fluidity to the grant which was intiMidnl to perfect or com- 
 plete the title of the, party, and will invalidate it, un 
 live Proprietary was apprised of the tnal-praclice before 
 fee inraitig the grant. The evidence in a court, of law, 
 and in a court of equity, to impeach thnn, is the same, 
 p-irol evidence being admissible in both the effect ami 
 final result U rhr> same. In chancery trio patent U vacat- 
 ed, and the j'j.I/MH-tit and decree are declared to be nulli- 
 und the parly U enjoined from proceeding further on
 
 Ofr MARYLAND. 4-07 
 
 th'efii. In a court of law, the judgment is that they can- 1809 
 not and di not transfer or pass any rirht or interest. In a ' *""-'' 
 
 1 . . sinsrery 
 
 court of law, the mode of examination is preferable, be- v 
 
 Allorney-Guueral 
 
 cause the evidence is better sifted, and more critically in- 
 quired into, and the credit of the witnesses is better test- 
 ed. 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 oC 
 chancery to compel a discovery of facts and circumstances, 
 which are confined to the knowledge of the parties, in or- 
 der to prove a fraud; which, it is believed, is the only rea- 
 son 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 opera- 
 tion 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 plaintiif 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 inope- 
 rative to pass any right or interest, which does not extend 
 to a patent? A judgment or decree must stand on as higli 
 authority as a patent. In this case the fact of forgery came 
 before the court and jury collaterally, and was not direct- 
 ly 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 forg- 
 ed, 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 de- 
 fendant cannot be compelled to answer any fact which will 
 criminate himself, yet the court of chancery has jurisdic- 
 tion over the case; and on proof of the forgery, by which 
 a fraud has been committed, will grant iclief by vacating 
 the grant or deed from whence the injury has arisen, or 
 
 VOL. H. 63
 
 498 CASES IN THE COURT OF APPEALS 
 
 1809. Vill make' uch decree aS the circumstance* of the case 
 **" ""^jr"""' render necessary. 
 
 The court arc' of opinion, that the forgery of the certifi- 
 cate of Singer i/' n Tniittin^ Streams, and the fraud con- 
 sequent thereon, have been fully established, and aftirm 
 the decree of the court of chancery, tvith costs' to the ap- 
 pellee. 
 
 (JAXTT, J. dissented. 
 
 DECREE AFFIRMED. 
 
 DECEMBER." HUXTT & PARKS vs. GIST, et a!, 
 
 edr p '^te7 i 'f APPEAL from a decree of the Court of Chancery. The 
 EluSr**!Mtt filed by the appellees against the appellants, on the 
 NTnd UT.n.V- lGt!l of January 1795, stated that Ifi/lium Parka, deceas- 
 "I'in^i 'that' "h.- ed, w as seized and possessed of a tract of land in Jhilli 
 hi.'"'n"hu <r r? l r!i't > ,orc county called Turkey Cock //<N/, containing 50 acre*, 
 iw aer'i l> of' > iami which by virtue of a special warrant, wax on the I Oth of 
 
 C;i-<l /' V), vllIXI'-. - . \ C \ L -i- 1 
 
 in the county oijuly 17o4 resurveyed for him, and a certificate thereof rr>- 
 tr'nanm Then'-un- turned into the land office, by which he caused (o be aiMod 
 unpertainin^now j 02 acres of land supposed to be vacant.- and consolidated 
 
 in the po^-rion g 
 
 or oecui>ti;,ii r>r t| ie whole into one survey by the same name of Turkey 
 
 the iail Vf P." J ' ' 
 
 o n ibiii inchan- Coc/c Alleii. That Park*, ncsfectinj t<x compound for the 
 
 erry lur |i-\tic w 
 
 ^w'ThaT th^re a( l^ e( l vacancy within the time required, a proclamation 
 irm,'oiTiie7lo"a" warrant wa thereupon granted to Edward Stevenson, and 
 Sn7 ac n rip.?.?n h e 0" the 2-2d of February 1 764, assigned the same to 
 hi| K iiT" h n y tifii c " U iIa Furks, who by virtue of the warrant of proclamation atad 
 d?n^ ' P "not Vd- i assignment, on the 28th of the same month* had resurvey- 
 iht'it wmliit "ii7 ed for him the added vacancy before mentioned, excluding 
 
 l by the partn-i .. . ... ... ,- , . 
 
 thai they rre to seven acres thercoi as oeittz wnhiD the lines of elder sur- 
 
 br Initl off at die- 
 
 rmth.mmcrtt pnn veys, and upon the rcsurvcv caused to be added the 
 
 nfthe tract. That J ' . r 
 
 the bond i >.,. i quantity of 127 acres of vacant land, iiiviiij; tn the 
 
 fur uncertain'). ' 
 
 riccpt on the W h le the name of Parki's Death Knot; and on the 5th ot 
 
 pnneiplc of rl. c- 
 
 ion, nd that March 1T64 , he obtained a patent on the certificate. Tmrt 
 
 Ih'Ttf W H 1 ^ fTI- 
 
 ti".Therr7uy on the 14th of April 1764, Parks executed and delivered 
 r!rh'r'of?he J pv- to Joshua Cockw, deceased, a bond of conveyance Tor 120 
 l^oro^ acres of the land called Parks" s Death Knot, by which 
 i>,iV|rt bond it was, as the complainants believe, intended to ge- 
 b? 1 "K^ cure to Cockeu 120 acres of the vacancv added on the procla- 
 
 nd., ti. one . n , , 
 
 rminuu matlon warrant, formms the southernmost parts ot J'arks 7 * 
 
 fir mid 
 
 Ml bou 
 
 of i 
 
 afidr 
 fll 
 
 t* flle l*od cuUTeycU to him, without notice that there rw any <Jignation of the JiO acwi.
 
 OF MARYLAND. 499 
 
 Death Knot. That before Parks obtained the assignment 1809. 
 from Stevenson, (which was procured by Cockey,) or at the 
 
 f * r /, ; i 
 
 tune oi sucli assignment, it was agreed between 1 arks and 
 
 Oiit 
 
 Cockey, that as Parks was unable to pay the caution mo- 
 ney on the certificate to be returned in virtue of the as- 
 signment, Cockcy should_ pay the same, and should have, 
 for such payment, 120 acres of the land, to be secured by 
 the certificate; in consequence whereof Cockcy did pay the 
 caution money, and thereupon patent issued, as before stat- 
 ed, 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 Parka died about 10 years ago intestate, leaving a son 
 named William Parks, (one of the defendants,) of full age, 
 his heir at law, who hath also at different times acknow- 
 ledged the bond of conveyance, and the equitable right 
 thereby created. That Cockcy ificd some tiine in 1765, 
 having first duly made his will, dated the 3d of December 
 1764, whereby, among other things, he devised as follows: 
 f 'Item. I give and bequeath to my eldest daughter Penelope 
 J)cye Cockci/, 100 acres of land, being part qf a tract of 
 land known by the name of Parka 1 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 Deyc sole exe- 
 tutor. That Jonhua Cockey left the complainant, Thomas 
 Deyc Cockey, his eldest son and heir at law, then an infant 
 \inder the age of 21 years, and also the other children men- 
 tioned in the wjl|. And that after the deaMi of Joshua 
 Cockf.y, his executor proved his will, and took out letters 
 thereon, and, among other papers of Joshua Cockci/, came 
 to the possessiop 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. Cvckcy,zs 
 heir at law qf J. Cockey. That Penelope Deye Cocjtey, af- 
 terwards intermarried with Thomas Gist, and she $nd her 
 husband are two of the complainants in this cause. That 
 Thomas Deyc Cockey, one of the complainants, believing 
 that the whole of the land intended to be secured by the; 
 b >nd of conveyance was meant to be devised to Penelope _ 
 Dcye Cockey, now Gist, by the wjll of Joshua Cockey t *l*
 
 900 CA>ES IN THE COURT OF APPEAL^ 
 
 1809. though only 100 acres are (herein mentioned, did on the 
 17th of January 1794, execute a bond i.f conveyance, by 
 vlm-h he bound himself to coivev to her, in fee, all his 
 right, title and inteicst, in ihc said land. That on the 19th 
 of December 1789, Parks, the younger, sold and convey- 
 ed part of Parks' s Dtath Kital to Jub Iluntf, (one of the 
 defendants?) and that the land included, within the metei 
 and bounds in thai coiiv-\ m< <\ is the south east part of 
 tlie land intended to be secured by the bond of convey- 
 ance before mentioned; and that Ilimlt 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 mak- 
 ing of the conveyance to him. That on the 13th of March 
 1790, Parks, for the purpose of indemiiifxing and securing 
 fluntt from all claims against the land so convened to him, 
 did by another deed convey to him in fee all the residue of 
 Parks'* Death Knol, with proviso that if Park* should in- 
 demnify him from all claims against the land first convex nl 
 to JIuntt, the last mentioned conveyance should be void. 
 That on the 10th of April 1790;/3mfct^MWMg the other lands, 
 conveyed to Ifunllin fee all the tract called Turkey CockJll- 
 /et/, with an exception as to a small part thereof, and also all the 
 tract called Parka's Death Knol, excepting 51 acres there- 
 of before conveyed to Ilunlt by the deed first herein re- 
 ferred to, and also excepting 120 acres of that tract, for 
 which the bond of conveyance was give.n. That 1'arl,*, 
 the elder, at sundry times, and down to the time of his 
 death, applied to JJcye, as executor of Corky, to pay va- 
 rious assessments and charges on the 120 acres of lain! in 
 the bond of conveyance mentioned, allciti^, that as the 
 land belonged to the estate of Cockty. all iLm..^ thereon 
 ought to be paid out of his estate; in coriscqiu nee of which 
 applications Deye, as executor of Cock<ij, paid ;i!l siuh as- 
 sessments and charges a= were exhibited to him by Parks, 
 \vho acknowledged the bond of conveyance, and that the 
 iteration of the bond had bet 11 dulv paid, and fie- 
 quently offered to JJn/c to make him a conveyance of the 
 land mentioned in the bond, a executor of Cocknj, &.c. 
 That in the deed of conveyance last before referml to, 
 Parks, the younger, and llunU, (the defendants,) have both 
 acknowledged the bond of conveyance, and an exiting 
 right under and in virtue of the same. That Ilnnif, in 
 consequence of the conveyances to him from Park*,
 
 OF MARYLAND. 501 
 
 entered into and taken possession of the land therein men- 1809 
 tioned. Prayer, tha,t the defendants mav be compelled ^--*~v^> 
 
 Huiitt fc I'arks 
 
 to convey to the complainant, Penelope Dcije Cist, in fee v ? 
 
 simple, or to such of the complainants as may be thereto 
 entitled, the HO 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 
 3764, in the penal sum of 500, and conditioned as fol- 
 lows: "The condition of this obligation is such, that if 
 the above bounden WilKtan Parks, and Eleanor his wife, 
 and each and every of them, and each and every of their 
 heirs, executors, administrators and assigns, do and fchall, 
 upon demand and at 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 as- 
 sured unto him, the said Joxhua Cockey, his heirs and as- 
 signs, for ever, al) 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 Parkas Death 
 Knot, situ ate, lying and being, jn the county of Baltimore 
 aforesaid, with the appertenances 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 b,e 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 to- 
 tally ignorant for what consideration the land was to be 
 conveyed, or what part of the land was intended to be con- 
 veyed; and they did not know or admit that the southern- 
 most or south easternmost parts was intended to be 'convey- 
 ed 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 south- 
 or south easteinmo&t part. That Pcndop^ ope p,f
 
 6C3 < ^SES IN mi. roriiT OK AITKALS 
 
 1R09. the complainants, came of full age 1 j years p:*t or more, 
 anil T. /). CocLrit, (one other of the complainants.) not 
 less than 1 } or 1 2 \rar- past. That Purks, tlie grantor, 
 and after lis death, /'MI-/-*, the son. were willing to comply 
 M ith the bond of conveyance, and cunvo} to ('nckcy, or to 
 whomsoever was entitled under the bond, whatever land 
 they were thereby cu;>iled to have coin eyed to them; b,ut 
 no person chose to come forward and in uivt- a coin fvance, 
 or ascertain what part of the land he, she or they, were en- 
 titled to under the said contract. That pn the i2Sd of Oc- 
 tober 1789, Parks, being desirous tf veiling the residue of 
 the land to extricate himself from difficulties under which 
 he then suffered, did advertise publickly in the Maryland 
 Journal and Bultimort ^Idt-frtinei^ vciuc#tiiig any person 
 vho was entitled to 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. I). 
 Cockry and 1'cnthpc Dtyt (list, were then both of full qge, 
 and that neither of them did apply to receive the convey- 
 ance, although thus called upon. That Parks was at that 
 lime under execution, and had no method of freeing him- 
 self therefrom but by a sale of some part of his lands. 
 That he applied to 7/to//, and proposed to sell him a part 
 of his lands in order to raise nioney to free himself' from 
 the execution; and in consequence Ihinlt purchased from 
 Parka the lands mentioned in the dt'cU of the HHh of De- 
 r ember 1789, which was then supposed to contain 31 acre*, 
 for which Huntl paid six dollars per acre. That the land 
 being found to contain I'ight and a quarter acres more, he 
 paid for the surplus on the 15th of March 1T91, That 
 Jlwitf 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 (hereof 
 actually ran in, an^l lay between, twp tracts of land owned 
 by him. That Ihmlt had seen and knew of the bond of 
 conveyance which had been so executed by /W,,v, the 
 older, to /. Cofftry, and had advised with counsel as to 
 the efl'ect then-of, and it wa* by the advice of coin 
 that he made his purchase. That on the 10th of April 
 1790, Parks executed a deed to lluntt for the land* 
 therein mentioned, which was intended to secure to Httntt 
 the payment of 88 3 6, then due to him, with interest 
 }Iu*tt admitted, that on the 13th of March 1790, Pgrkt
 
 OF MARYLAND. 503 
 
 executed in due form of law another Conveyance (6 hini, 1809 
 tlte object and intention of which was to secure and gua- ^^-vO 
 
 J IIuiut& I'iirli* 
 
 rantce to him the lands first sold to him; that after deduct- * 
 
 ing 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 ot convey- 
 ance to be conveyed to Cockcy. That they were instruct- 
 ed, that after the length of time which had elapsed since 
 the execution of the bond of conveyance, without the com- 
 plainants either possessing the land so alleged to have been 
 contracted to be sold to their father, or claiming an execu- 
 tion 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 Hunt I, who i.s a 
 purchaser for a valuable and bona fide consideration; and 
 they claimed the beriefit 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 convey- 
 ance was Intended to secure 120 acres of the vacancy add- 
 ed on the proclamation warrant taken out by Edward Sle- 
 vcnson, and assigned to Fftyliam Parks, on which a sur- 
 vey was made the 28th of February 1764, as appears by 
 the certificate returned to the land oftke, being in the 
 whole 127" acre?. And also that it was intended to exclude 
 the part added as the third vacancy, although the third va- 
 cancy is returned as containing only six acres. The first 
 awl second vacancy added arc returned as containing, the 
 one six, and the other 1 15 acres, making together 121 acres 
 instead of 120, which it may be inferred from the evidence 
 they were supposed to contain by the parties to the bond. 
 The complainant, Penelope Dcye Gist, is therefore entitled 
 under the will, and bond of conveyance from Thomas fitye. 
 CocAttt/, which are not contested, to a conveyance for that 
 part of Parks's Death Knot, which is claimed by the bill. 
 The part of Parka's Death Knot which was conveyed by 
 the defendant William Parks, to the uther defendant,
 
 50 1 (ASKS IX THE COURT OF APPEALS 
 
 1309 Job Httntt, by the deed of the 10th of December 1730, 
 -rated therein to contain 31 acre--, and by the morf^i^-- 
 of the 13th of March 1700, the re-idue U aUn coir, 
 to him, thereby vesting in him the le^al title in the whole. 
 Ami inasmuch as /'u //.-.< has an equitable title to the resi- 
 due, and by joining in the convevanrc for the pirt convey- 
 ed by him to IlunH will not be bound to make a general 
 warranty, or be liable to any risk or loss thereby, it is con- 
 sidered that a joint deed will be tin- most proper to 
 the legal title in the complainant, Pcnc'.opc. Dei/e Gist, ac- 
 cording to the bonds Decreed , thaf the defendants shall, 
 by a good deed to be executed by them, and acknowledged 
 and recorded according to law, i;ivp, ;rant, &c. to the com- 
 plainant, Penelope Drt/e Gist, and her heirs, 120 acres of 
 land called Park? a Death Knot, situate, &c. the said 1 :<t 
 acres being part of a trar.t of land resurveyed for William 
 Parks, deceased, father of Jf'il/iam Parks, me of ihe defen- 
 dants, on the assignment of Edward Sievm-ion, on or about 
 the 28(h of February 17G4, and patented to IHlfiam Parks, 
 deceased, on or about the 15th of March 1704; to be laid 
 oflTas follows, to witr To include the whole of the first va- 
 cancy described in the certificate of the rcsurvey, to be- 
 gin at, &c. containing six acres; to include also the serond 
 vacancy described in the certiGcateof 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 JHleyi on which the 
 proclamation warrant was taken out, &c. And all the es- 
 tate. &c. of the defendants therein, and which was in 
 JTiliiam Parks, deceased, and all and singular the here- 
 ditaments and appurtenances to the same belonging, or in 
 anv manner appertaining. And upon the due execution, 
 at kmmleil^mcnt, and recording of the deed, the complai- 
 nant, Penelope Drye Gist, her heirs and assigns, shall be 
 entitled to hold (lie said land free, clear and discharged, 
 f.-nm all claim of the defendants, or either of them; the 
 said conveyance bein^ in satisfaction of the bonds in the 
 proceedings mentioned. Decreed also, that the defendants, 
 and each of them, deliver up to the complainants, T/wmas 
 (iixf, and Pmelope Dei/e Gist his miff, the quiet and 
 praceable p<>^>'-^ion of the land hereby decreed to be 
 tom-yedj and that they pay to the complainants the costs
 
 OF MARYLAND. 003? 
 
 of this suit, &c. From this decree the defendants ap* 1809. 
 pealed to this court. 
 
 Hunt 
 
 The cause was argued before CHASE, Ch. J. GANTT, Oot 
 and EARLE, J. 
 
 Martin and Price, for tlie Appellants, referred to Co. 
 Lilt. 145. 2 /tec. Jth. tit. Election, (B) 443. Taylor 
 vs. Stebbert, 2 Vcs. jr. 437. A/oor, 72, case 197. /% 
 ward's case, 2 C0A:e, 36. 
 
 Johnson, (Attoiney General,) and Winder, argued for 
 the Appellees. 
 
 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 thereby the same could be 
 identified and located, parol evidence is not admissible to 
 show that it was intended by the parties that the 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 elec- 
 tion; and there is no evidence to prove that there was any 
 election made by either of the parties, or their represen- 
 tatives, anterior to the time of the execution of the deed 
 from William Parks, junior, to Job Huntt, on the 19th of 
 December 1789. That Hunlt was a fair and bona fide 
 purchaser of the land conveyed to him by that deed, with- 
 out 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 chan- 
 cery be reversed, with costs to the appellants, and that the 
 appellants, by a sufficient deed or deeds, convey to Pene- 
 lope 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, if not, so as to be most conve- 
 nient, exclusive of the land conveyed to Huntt by Parks, 
 the younger, by the deed of the 19th of December 1789, 
 vot it 64
 
 306 CASES IN THE COURT OF APPEALS 
 
 1809. anil exclusive of the land conveyed by Parks to Arabella 
 
 That the court of chancery make all nee. 
 orders, and take measures for having this decree curried 
 into full and complete eftect. 
 
 DECREE REVERSED, &.C. 
 
 THOMAS vs. THOMAS. 
 
 APPEAL from Frederick County Court. Trespass f6r 
 RktMy.'tiMi Breaking and entering the close of the plaintiff, (now ap- 
 [&to* pellec.) called The Itesurvey on Hazzard. The defendant, 
 Jnfund-S'p^- ( the appellant,) pleaded the general issue. A warrant of 
 SStattoapoiMfrttorvey was ordered and issued, and the lands in dispute 
 rWniiiA^Mr, were located and plots returned. The plaintiff at the trial 
 twwnhhUnJiDd in August 1806, offered in evidence the patent of Tfic lle- 
 t. Mi UK- surveii on Hazzard. granted to Notlcu Thomas^ on the 14(h 
 
 wvm.1 I in., from 
 
 ih.it P ..i,,t < r<r- of February 1754: that the patentee entered arid died MM/. 
 
 f>m iih-r |xiiii', 
 
 iio ms.k.a on e( | an( | that the plaintiff is his heir at law, and entered, 
 
 I'M- pint', ilm- 
 
 iiionti tin., t*. , c> ji e further offered in evidence the plots and explana- 
 
 n them; ami 
 
 if die dr'eiidmit tj on8 an j f| ie patents for the several tracts of land locat- 
 
 xiai it no IIIIK- I 
 
 t^'i^M^'frer w'id e( l thereon by him, and that the same are truly located by 
 
 wch i * l hl n u l ;ji u t h'm on the plots. He also offered evidence, that the de- 
 
 nrt"hitV.r to "he fendant had cut down, cleared and cultivated, part of the 
 
 ^,1"' p^l'mHy land within said locations; that the plaintiff in 1800, before 
 
 ar ?onic r toid this suit was brought, forewarned a person who was work- 
 
 iii" under the direction of the defendant within said loca- 
 
 O 
 
 tions, not to cut on his land, and which person, having 
 given the information to the defendant, was directed by 
 him to cease cutting there. He also offered evidence, that 
 he had at two different times told different persons that he 
 expected one day to get the land now in controversy, but 
 the defendant was not present at either of those ron 
 tions, and did not appear ever to have heard of this claim.' 
 Tin-, defendant then read in evidence the patent of a 
 tract of land called Mordund, granted to him on the 28th 
 of June 1784. He also gave in evidence the plots and ex- 
 planations, with the several locations by him made there- 
 on, and offered to prove that such locations were truly 
 iiimlr. lie also read in evidence a record, with the plot* 
 and explanations belonging thereto, of an action of trespass 
 instituted in Frederick county court by the plaintiff, against 
 him the defendant, for breaking and entering the close of
 
 OF MARYLAND. 
 
 507 
 
 ihe plaintiff called The Restirvcy on Hazzanl, to which the 
 defendant appeared and pleaded the general issue, and a 
 warrant of resurvey issued, and the lands in dispute were 
 located on plots made and returned in that action. At the 
 trial in that suit, the jury gave their verdict that the de- 
 fendant was not guilty of the trespass complained of, and 
 the plaintiff' was nonsuited. He also offered evidence, that 
 the plaintiff and defendant in that action, and in the pre- 
 sent action, are the same persons, and that the tracts of 
 land, so far as in that record located, are the same as located 
 in the present suit. That the pretensions and locations of - 
 the plaintiff on the plots in that record, of the land called 
 The Resurvey on Hobsori's Choice, from the end of the 4tst 
 line thereof to the end of the 44th line, correspond with 
 the location as made by the defendant on the plots in thin 
 cause. He also offered evidence, that the plaintiff in 1782 
 acted as surveyor to run the division lines between the 
 plaintiff and defendant, and that the lines were run, and 
 an apple tree was marked at the end of the 41st line of 
 The Resurvey on Hobsori's Choice, in the presence of the 
 plaintiff and defendant, as a corner between them. That 
 from the apple tree so marked, the plaintiff run, as divisi- 
 onal lines between himself and the plaintiff, the lines located 
 by him on the plots; and that the defendant has ever since 
 that running been cutting and clearing the land on the west 
 side of the said divisional lines. Other evidence was give a 
 by the defendant, which it is unnecessary to notice, it hav- 
 ing no relation to the point decided by the court. The de- 
 fendant then prayed the opinion of the court, and their di- 
 rection to the jury, that if from the evidence they find that 
 the plaintiff, twenty years before the institution of this suit, 
 run his land in presence of the defendant to the aforesaid 
 apple tree, as a boundary between his lands and the lands 
 of the defendant, and the several lines located by him as. 
 divisional lines between them; and if the defendant has at 
 no time committed any trespass over said divisional lines, 
 that in such case the defendant is not a trespasser, and not 
 liable to this suit, unless he was previously warned or for- 
 bid to come to said lines. But the county court, \_Bucha- 
 nan, Ch. J. Clagett and Shriver, A. J.] refused to give the 
 direction as prayed. The defendant excepted; and the 
 verdict and judgment being against him, he appealed to 
 this court. 
 
 1809
 
 CASES IN THE COURT OF APPEALS 
 
 The cau?e was argued before CHASE, Ch. J. 
 CAN IT, and EARLE, J. by 
 
 Harper, for the Appellant; and by 
 for the Appellee, 
 
 JUDGMENT AFFIRMED. 
 
 DECEMBER. BEURT, use BURGESS'S AdmV. vs. NICHOLLS. 
 
 ^ VF.XIMTIOM EXPONAS. A judgment was rendered in 
 'Inn-i*'! tne late general court at May term 1791, in favour of ''. 
 in.TK 1 , Btrry against . Aicholls and 6'. Jivrgess, on which 
 .d ilT'uid ou* writs of execution regularly issued, but were not execut- 
 dJuin""rator,!f h c ed, until the 14th of July 1806, when a writ of, fieri facia* 
 
 p.iii! lh- unvMint . . . "... . ,. 
 
 of nir juH.nn. in was issued. returnable to this court, against Aficnol 
 
 to H.whnJ.K-cUcl 
 
 the jd e mit to survivor of B\tTKt*t* whose death was suggested, and 
 
 ntl for the 
 
 i- of the aJmi- W a.s returned by the slicriff. "laid as pr. schedule, not 
 
 mt nine ol'C A J 
 
 '' t?- sold, &.c. v The schedule described the propeitv .IN follow: 
 
 ird tor the 
 
 i,e arfn.i- V i 7> " (>ne house and lot in the town of Upper Murlbor( 
 
 nnfralor Of C, Inr 
 
 of Jo//?l IloilFCS of TkOOtlU; aiid iintt 
 
 mM?on'o!*H S '.t!' 1 ' tou se and lot in the town of Upper filarlborovgh, occupied 
 
 tenu.,,1, VW ,M. by /j/,//; ; , 7; /? i. r? Esquire." The plaintiff' gave diiec- 
 
 lions in writing to the clerk of this court, dated (lie 1 
 
 of Augn>t 1M.'.\ to have the judgment he had obtained 
 again-t E. A"< <:/*<.//, arid C. Burgess as security, entered 
 for the use of Dennis M. Burgess, adm'r. of C. Burgess^ 
 the money having been paid to him by said Burgess. On 
 the 10th of November 1809, the present writ of vendil'wni 
 erponas issued for a sale of the above property, and 
 endorsed for the use of Dennis M. Burgess administrator 
 of Charles Burgess, and was returned by the sheriff, that 
 the property remained unsold. &c. 
 
 Motion on the part of the defendant to quash the writ 
 of tenditioni eyponas, for the following reasons: 1. Be. 
 cause, in the description of the property tr ken under the 
 firri facias, there was not such certainty as the law re- 
 quires. 2. Because the judgment, wherenn the execu- 
 tion issued, was obtained against the defendant and (\ 
 Jlurgtss, and by the endorsement on the execution, and 
 the note of the plaintiff to the cleik, filed in court, it ap- 
 peared, that before issuing the fieri facia* the judgment 
 wiw sati*fad, and the execution was> issued /yr tin tist of 
 
 '
 
 OF MARYLAND. 
 
 tlic administrator of one of the original defendants against 
 the other. 
 
 The motion was argued before CHASE, Ch. J. NicHot- 
 sox, GAXTT, and EARLE, J. by 
 
 r, for the motion; and by 
 Clagelt, contra. 
 
 THE COURT sustained the motion, and 
 
 VENDITIONI EXPONAS
 
 INDEX 
 
 OF THE 
 
 CONTAINED IN THIS VOLUftXXL 
 
 A. 
 
 ABATEMENT, 
 
 1. An appeal or writ of error, standing 
 under rule argument, does not abate 
 by the death of either party. Lynch 
 v Colgate, 37 C mite. J 
 
 2. The act of 1797, ck. 114, s. 4, direct- 
 ing, "that if a cause in the court of 
 chancery is set down regularly for 
 hearing, or submitted to the chancel- 
 lor, and one of the parties dies there- 
 after, and before a decree is passed, 
 the cause shall not abate, and the 
 chancellor may decree as if such par- 
 ty were alive," cannot take effect in 
 a cause where there might be a de- 
 cree for a reconveyance of land to the 
 party dead, on paying or bringing 
 money into court. Brogdcn v Wal- 
 ker's Ex'r. 285 
 
 3. On the death of a defendant in an ac- 
 tion of debt, &c. a summons may issue 
 to an executor de son tort, (there be- 
 ing no legal executor or administrator 
 of the deceased), to appear to and 
 defend the action. Norfolk v Gantt, 
 
 435 
 See Ejectment 27. 
 
 ACCOUNT. 
 
 See Cause of Action 1. 
 
 ACCOUNT IN BAR. 
 
 See Discount 4 
 Evidence 59. 
 
 ACKNOWLEDGMENT. 
 
 See Evidence 51, 77. 
 
 Limitation of Actions 9. 
 
 ACKNOWLEDGMENT OF DEEDS. 
 
 1. Where deeds, defectively acknow- 
 ledged by femes covert grantors, were 
 
 held not to pass the estate in the lands 
 to the grantees. Greene v Muse ei al. 
 Lessee, 6:J 
 
 Ilollingsworth et ux. v. M f Donald et a/. 
 
 230 
 
 2. A literal adherence to the form of the 
 certificate of the acknowledgment of 
 a deed by a feme covert is not essen- 
 tially requisite; and the omission of 
 words deemed essential can be sup- 
 plied by the substitution of words e- 
 quipollent, or of similar import and 
 signification. 1 'fallings war th et ux. v 
 McDonald et al. 237 
 
 3. If a grantor of land, residing in a par- 
 ticular county, and having a tempora- 
 ry residence in another county, in nei- 
 ther of which counties does the land 
 lie, acknowledges the deed in the 
 county in which his temporary resi- 
 dence is, such deed is not good and 
 valid in law to pass and transfer the 
 grantor's interest in the land. Hull v 
 Gii 'tings' '3 Lessee, 383 
 
 4. 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. 
 
 Ib. 390 
 
 5. The words "legally authorised and as- 
 signed," in a certificate of the clerk 
 of a county court to a deed acknow- 
 ledged before two justices of the 
 peace of that county, is a substantial 
 compliance witli the directions, anil 
 within the meaning of the act of No- 
 vember 1766, c/i. 14, and are words of 
 the same import a* "duty cominitusion- 
 ed and sworn," Ib. 
 
 ACTION. 
 See Auctioneer 1.
 
 f.VDKX. 
 
 Covenant 2, 5, C. 
 
 ACTS. 
 
 person will be permitted 
 fir.n hU own acts. He cannot set up 
 gc un<ler an insolvent law 
 .>4aTi''"i his prior acts. I)-*- 
 QmtaoviKj, 411 
 
 2. If -i mortgagor of slaves *Jb them for 
 a full consideration, and after hit dis- 
 charge uini ! an insolvent law, pur- 
 chases them of the mortgager, his 
 
 S'lb> till;;- his t'r- 
 
 tls to the slaves, will ^nnre in law to 
 Confirm, and not to defeat, las con- 
 tract with tho vendee. Ib. 
 
 ACTS OF ASSEMBLY. 
 
 1. Certain acts of assembly construed or 
 explained, &c. 
 J715, c'i. 4V, (Attachment.) 379 
 
 , eli. 1 , .. -i, ( Manumission.) 1 76 
 1756, dt. 17, (Vesting entailed I 
 &e.) 167 
 
 ~>, s. 8, (Assignment to 
 
 ;,-.) 2J8 
 
 ."(Nov.) cA- 14, (Certific 
 th.- ;:nent of a Deed. ) 389 
 
 177*,, (June) rA. 1, (Estate Tail.) 69 
 I774> (March) cA. 28, (Insolvent Debt- 
 ors.) 61 
 
 . (July) ch. 8, (To perpetuate 
 \.) 396 
 
 1730, (Oct-)cA. 45, 49, 51 (Confisca- 
 tion.) 96, 471 
 1781, (Nov.) fti. :0,s. 8, ( Escheat. )96 
 17S2, (Nov.) rJi. '.>.',, (Estate Tail.) 69 
 17SJ, r/i. 46, (Discount.) 
 
 cli. 72, *. 11, (Uecording a Deed 
 
 by a IK-ctv i'.) 281 
 
 cA. 80, (Vew Parties.) 4J5 
 
 1786, eh. 45, ('Descent. Estate Tail. } 
 
 314 
 1795, eh. 56, T Attachment. J 344, 37^ 
 
 1797, ch. 110, . 2, 3, f Gaming. J 5 
 
 ch. 1 14, .*. 4, ^Abatement. J 285 
 
 cA. 119, ("Saving Rights fcc.J 96 
 
 1798, c/<. 101, f Executors kc. Aiidi-J 
 tor. 435 
 
 2. An act of assembly directing that an 
 
 auctioneer shall (five bond before he 
 
 , if the fact was that 
 
 the license was obtained prior to the 
 
 -.f the bond, it was capable 
 
 of proof, and in the power of the par- 
 
 d himself of it on his 
 
 plm '! .; ii- r:.l prrformanrc, :nd in- 
 
 !.:. f i.-t in his r -ji'lnJor to 
 
 'mn of the plaintiff assiffn- 
 
 iie breach. M Thr. 
 
 , i.'c. 41 
 
 3. A repealing ordinance cannot . 
 or affect any ri^ht which was ar,. 
 b\ any person under the first onli- 
 nance In-fore the r'.-jx-:il tln-r-.-of. Id. 
 4 The intention and m<-.-\nini< of the 
 i.iture are to be collected from 
 the law itself, and they are not to he 
 in-.'d by anv thing- in the pream- 
 
 ble. iMidlrr e ouu 
 
 5. In th.- construction of mi act of .is. 
 
 ly, the intention of the Ic^isla- 
 ture is to prevail, an-1 i.s to be collec- 
 ted from ' ,,f the law, and 
 
 t!u- circ i-i ; ;c-h produccil it. 
 
 ' ft nf. f***ee f Ihtnt-ood. 167 
 
 6. Where laixl had been <!.-. 
 
 to Jii-, son H, inlail male, r^inaindi-r in- 
 tail male to his eldest HOII C, n-ni-.iiM.ler 
 intail male to histiiird son I), remain- 
 der in fee to his two K and 
 
 F, as tenants in common, was, on the 
 petition of H to the Icgisl 
 in:,' that he had nn\y fmiiile heirs, (viz. 
 two dan-filters L and M) who co'ild 
 not inherit the land, wh'-rebv it would 
 
 C, ('.vho united in th 
 by :i:i acl '>ft: 
 ed in the t>u-'d _/" 
 
 and wisi'gn*, with a pro\i*o that if Ii 
 s!"vil t l h-ave any male heirs at the time 
 of his death, or that the said female 
 heirs should not have i.^iic, then the 
 land should d^.scen.l -,rid stand limited 
 a- i .y the will of A is de-vised. \ 
 wanls B had a son bora named U, who 
 died in the life -time of H, leaving 
 three daughters, H, J and K. Dnr- 
 iie life of G, the land was con- 
 veyed to him in fee by H, of which 
 he died seized, leaving the said three 
 daughters. l\ aftrrw.-u-ds died, Icav- 
 i"', r i- I, and 
 
 M, who entered, S;c. They are both 
 since dead, M having survived L, 
 KavinT a dansr'.iter N", married to the 
 defendant. On ejectment brought in 
 the name of the lessee of H, .1 and K, 
 the three daughters of <i llrld, that 
 frjnalc hi-ir.t meant tlie two daughters 
 of n, and that an estate in fee simple 
 1 in them to be defeated on the 
 happening of two contingencies, 1st. 
 If ii Kl\ i^-viie m-ih- at tlit- time of his 
 death, and id. If K should die with- 
 out leaving issue nrdr at the time of 
 his death, and his two '. houki 
 
 die without leaving issue; and that 
 the pUintiir was not entitled to 
 rer. 
 
 her or not an estate, vested by 
 an .ict of ass'-mtdy in two persons, 
 their he'n-s and assign*, is a joint te- 
 nancy or tenancy in common * Ib.
 
 INDEX. 
 
 513 
 
 ADMINISTRATION. 
 
 See Executors & Administrators. 
 
 AD MINIS TRATOR. 
 
 See Executors & Administrators. 
 Executor Pro Forma. 
 
 ADMISSION. 
 
 foe Evidence 77. 
 
 Judgment 2, 3. 
 
 Location of Lands 3, 16. 
 
 Special Verdict 1. 
 
 Trespass 6. 
 
 ADMISSION OF EVIDENCE. 
 
 See Evidence 33. 
 
 ADVERSARY POSSESSION. 
 
 1. No adversary possession of land can 
 avail against the state, flail v Git- 
 tings Jitn'rs. Lessee. 112 
 
 2. An advei-sary possession commencing 
 against the Lord Proprietary, ceased 
 to operate against the state after the 
 act of confiscation. Ib. 
 
 3. .Nothing but twenty years adverse 
 possession can defeat a title acquired 
 under a grant. Ib. 
 
 4. A person out of possession for more 
 than twenty years, where there is not 
 an adversary possession in virtue of 
 some right or by actual enclosures, 
 his heir, or person claiming 1 under 
 him, may bring- an ejectment without 
 an actual entry into the land. Ham- 
 mond et aL Lessee v Warfield. 156 
 
 5. A naked possession, (^possession 
 without right, ^) is only adversary to 
 the extent of actual enclosures, Ib. 
 
 6. Where the defendant, in an action of 
 ejectment, was in possession of 100 
 acres of land by enclosures and cul- 
 tivation for 15 years, and then enlarg- 
 ed his enclosures so as to include 150 
 acres, and he possessed the same, so 
 enlarged, by enclosures, for 6 years 
 thereafter, claiming- the same as his 
 own. Held, that he had title to the 
 
 1 100 acres by adversary possession. 
 Hall v Git'ings's Let^t-r. 391 
 
 See Kjectment 2, 3, 4, 6, 19, 20. 
 
 Entry 1. 
 
 Limitation of Actions 2, 3. 
 
 AFFIDAVIT. 
 
 See Evidence 76. 
 
 AGENT. 
 
 See Court of Chancery 54. 
 
 AGREEMENT. 
 
 Sec Contract. 
 Covenant. 
 
 VOL. IT. 65 
 
 See Overseer 1. 
 
 Parol Agreement. 
 
 Special Agreement. 
 
 Warranty. 
 
 ALIEN. 
 
 1. No British subject could hold land in 
 this state on the 19th of November 
 1794, the time when the treaty was 
 made with Great Britain. Owings v 
 Norwood's L&Mec. 104 
 
 See Foreigners 1. 
 
 Mortgage 4; 5. 
 
 ALIENATION. 
 
 See Fieri Facias 3. 
 
 ALLEGATA AND PROBATA. 
 
 1. A judgment of the court below re- 
 versed, because there was one count 
 in the declaration to which the evi- 
 dence dkl not a-nply. Grant v Rids- 
 daleetal. 186 
 
 See Assumpsit 1. 
 
 Replevin 2. 
 
 Variance 1. 
 
 ALTERATION. 
 
 See Evidence 9. 
 
 AMJ5IGU1TY. 
 
 Sec Covenant 1. 
 Grant 30, 36. 
 
 ANCIENT DEEDS AND RECORDS. 
 
 See Evidence 10, ">6, 61. 
 
 Inspeximus 1. 
 
 Presumption 4. 
 
 Specific Performance 1. 
 
 ANSWER IN CHANCERY. 
 
 1. An answer to a bill in chancery is 
 riot to be considered as standing good 
 if it be contrary to the testimony of at 
 least two witnesses, or of one witnes.i 
 and strong equitable circumstances. 
 Nurwood v Ntrwood, 23 & 
 
 2. An answer to a bill in chancery will 
 prevail unless refuted by the testimo- 
 ny of two witnesses, or of one witness 
 with equitable "circumstances. Haj)- 
 kins v Stump et al. 304> 
 
 3. If inteiTogatories, stated in a bill, are 
 not answered, the complainant has a 
 right to except to the answer? and if 
 the interrog-atories are proper, the 
 defendant will be compelled to an- 
 swer plainly, fully and explicitly- If 
 then any material matter charged in 
 the bill has been neither denied nor 
 admitted by the answer, it stands on 
 hearing of the cause for wuglil. 
 
 Ib, 305
 
 J1-* 
 
 INDIA* 
 
 4. Whether or not the Answer of one of 
 the defendants to a bill in 
 evidence ag:in.-.t another defendant* 
 trMiaiiH r Mxtgion, 47* 
 
 See Evidenc 
 
 Preference 1. 
 
 AN IT DATED. 
 &e Promissory Note 3. 
 
 APPEAL. 
 See Abatement 1. 
 
 Court of Appeals. 
 
 APPLICATION or PAYMENTS. 
 
 1. If a debt is due on mortgage and on 
 open account, and partial payments 
 are made by the debtor, without any 
 application, the law will apply the 
 payments to the mortgage debt. Dor- 
 3ft/ c Ga-^atrai/, 4 1C 
 
 C. r.iymcnts made by a mortgagor are 
 not to be applied to discharge a debt 
 due on the mortgage, in favour of a 
 purchaser of part of tlie property 
 mortgaged, who had not paid tor it, 
 and who had made a gift thereof to 
 his son to defraud his creditors. H. 
 
 ARRKST OF JUDGMENT. 
 
 See Covenant 8. 
 Slander 1, 3. 
 
 ASSETS. 
 See Distribution 1- 
 
 Krecutors Sc Administrators. 
 
 Foreign La'.vs 4- 
 
 Pleading 3, 4. 
 
 Plenc Atlministruvit 1. 
 
 Preference 2. 
 
 ASSIGNEE !c ASSIGNOR. 
 &e Court of Chancery 5. 
 
 Mortgage , 3. 
 
 ASSIGNMENT. 
 
 1. Whether or not an attorney at law 
 can assign to the surety a judgment 
 obtained against principal and 
 where it has been paid by the sure.ty, 
 so as to enable him to take out exe- 
 cution in his own name under the ai-.t 
 
 of i7r>3, rh. :.";, s. a> QUL,-I. 
 
 iiwd v Nurwood, J8 
 Sec Court of Chancery S. 
 KquiUblc Assignment 1. 
 
 ASSUMPS1T. 
 
 1. If the plaintiff in an action of axtump- 
 tit tiles an account in court containing 
 the items of his claim against the de- 
 fendant, he is precluded from going 
 Into evidence u> establish liis claim in 
 
 a manner different from that in which 
 he has elected by his account t>. 
 sider the defendant his debtor. // 
 
 / r DC l.n -i^\ 
 
 '2. In atmumjmit for one Year's sen k-cs 
 as an overseer, and a ;jintttf'iin mirttit 
 for such services /A///, that if there 
 was a special agreement between the 
 parties for the plaintiff's MT\>. 
 an overseer, then he is not entitled to 
 recover upon his declaration. 
 nii:ti r iSYi/t'A ailm'r, 
 
 3. The amount expressed in a note, pur- 
 porting to be a genuine bank note, 
 hut which was proved to be forged, 
 may be recovered, in an action of </.- 
 xumpxit, 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 t<> be genu- 
 ine, fthd tile defendant did not war- 
 rant it to be genuine, or endorse i'. 
 Min/d v li 
 
 4. U and J sold and delivered to II 1'-, 
 a quantity of sugar, under a parol a- 
 greement with J K, that J It 
 
 pay for the sugar if II It did dot. . I 
 H paid n and J for the sugar, and :m 
 action ofussumpsit was brought in the 
 naniv-s of H ana .1, for the u>- of J it, 
 
 <-t H H //./(/, that the I 
 cr.uld not be sustained. linnu-*- r 
 Jilackittiiiir, ft al. 
 
 5. In w.v.M//,//></V on a foreign bill of ex- 
 change, the pl.iintiif is to ree< 
 much nioin-y as will, at the time of the 
 verdict, purchase u similar bill. 
 
 tint v I'nylirr, <k/U 
 
 . laranty I. 
 Limitation of Actions 9. 
 
 ATTACHMENT. 
 
 1. The plaintitf on a judgirent ofron- 
 dciunation on an att:iclniK-ut on judg- 
 ment, where there was no furl facia* 
 on such judgment, and *ale thereun- 
 der of the laud i-ondemuH-d, docs not 
 ac((uirc a legal estate in the land by 
 virtue of the judgment, attaH. 
 
 and condemnation. Uu\ngs v A'or- 
 ti-tHxl'y Isjaeei 
 
 2. An administmtor mr.y issue an attach- 
 ment on warrant under the act ol 
 1795, rh 56. M. Cm/ r tin-tin'.* nrini' 
 
 344 
 
 o. A sum of money due and owin,. 
 which by express agreement M 
 be paid in work and labour, is a cre- 
 dit which may lie attnrhrd in virtue of 
 the attachment law- of in.S, cA 40. 
 and 1795, ch 56. LvuJerman c \\'il- 
 ton. -'.79
 
 INDEX. 
 
 015 
 
 ATTESTATION. 
 
 >'-/' Presumption 4. 
 WUi 1, 2. 
 
 ATTORNEY AT LAW. 
 
 3. A receipt given by the attorney of 
 the plaintiff for a sum of money, 
 stated to be in full of a judgment, is 
 not conclusive evidence that the judg- 
 ment is satisfied, so far as to prevent 
 the plaintiff from taking 1 out execu- 
 tion on the judgment for any balance 
 which may be actually due thereon. 
 Hughes v ODwinell, 324 
 
 See Assignment I. 
 
 AUCTIONEER. 
 
 1. A person who intrusted an auctioneer 
 with the sale of goods, &c. and has 
 a claim against him for money arising 1 
 on the sale of the goods, has a right 
 to apply for and direct a suit on the 
 auctioneer's bond for the recovery of 
 his claim. M'MecJien v Mayor, &e. 
 p/ Baltimore, 41 (nvlt} 
 
 Set Evidence 31. 
 
 Pleading 6. 
 
 AUDITOR. 
 See Executors and Administrators 8. 
 
 AUTHENTICATION. 
 
 1. A will was executed in Philadelphia! 
 and transmitted by the testator to the 
 Island of Alartinique, and a copy of it 
 proved by the testamentary executor, 
 certified by a notary public of that 
 island, with the certificate of the 
 chief colonial officer, that it is the 
 signature of the notary, and returned 
 under a commission to take testimo- 
 ny, is sufficiently authenticated, and 
 may be admitted in evidence. 
 
 De So/try v Terrier De Laiftre, 193 
 
 2. How far the proceedings in a court 
 in a foreign country is leg-ally authen- 
 ticated, and how far the exemplifica- 
 tion produced contains the whole pro- 
 ceedings, &.c. 11}. 198 
 
 o. The mere showing 1 the seal of a 
 court pf our own state, .in another 
 court of the state, is a sufficient au- 
 thentication of the judgment of the 
 court it purports to certify. Ib. 
 
 AVEUMENT. 
 See Shnder I. 
 
 B. 
 
 BANK AND BANK NOTE. 
 
 See Assumpsit 3. 
 
 Forged Bank Note* 
 
 BARGAIN AND SALE. 
 
 1. Whether a frust estate, or any but a 
 legal estate, can pass by a deed of 
 bargain and sale ' llollingsiuorlh et .r. 
 r M'l)onnM ft. al. 230 
 
 2. Whether a feme rmert can pass her 
 real estate in any other Way than by 
 deed of bargain and Siife? lb 
 
 See Conveyance. 
 
 Estate Tail 2. 
 
 feme Cqvert 2. 
 
 BEGINNING. 
 See Location of lands 5, if. 
 
 Verdict 1, 3. 
 
 REQUEST. 
 
 1. A bequest to a ci'editor does not ex- 
 tinguish a debt or claim which he has 
 against the testator. Partridge v 
 Partridge, 63 
 
 KILL OF EXCEPTIONS. 
 
 1 . A paper certified in a record trans- 
 mitted' on appeal, purporting to be a 
 bill of exceptions taken at the trial of 
 a cause, was held not to be a bill of 
 exceptions in the case, it riot appear- 
 ing that the seals oJ the judges of the 
 court belosv had been affixed to it. 
 /Jm v tl'ifson, tt id. 345 
 
 2. As a matter of practice, the evidence 
 offered to the jury, on which the opi- 
 nion of the court is prayed, ought to 
 be state^ in the bill of exceptions. 
 The court of appeals, however, will 
 retain a bill of exceptions where tb.0 
 court below was called on and did 
 give a direction to the jury, although 
 no facts are stated therein. Barnes 9 
 Blacki&tan, et al. 37S 
 
 BILL OF EXCHANGE. 
 
 1. In assumpsit on a foreign bill' of ex- 
 change, the plaintiff is to recover as 
 much money as will, at the time, o 
 the verdict, purchase a similar bill. 
 Brydcn v Taylor. 400 
 
 See Notary Public 1. 
 
 Promissory Note. 
 
 BILL OT REVIEW. 
 See. Court of Chancery 8, 9, 10, 11, 12, 
 13, 14, 40. 
 
 BILL OF REVIVOR. 
 
 See Abatement 2. 
 
 Court of Chancery 20, 22, 
 
 BILL OF SALE. 
 
 1. If slaves remain in the possession of 
 the vendor, the bill of sale' must be 
 ackuowUdtfcd and recorded; and wlie-
 
 516 
 
 INDKX. 
 
 ther or not they remained ia his pos- 
 session, is matter of fart for the ju- 
 ry; and if tlu-y were nut in his pos- 
 session, then the hill of s:iK- is not 
 required to :<,. recorded, and it i> not 
 rvulence, although it has li< ( n re- 
 corded, unless the execution of it is 
 proved. Durst ij v GasiHttvuy. 403 
 Sec Mortgage 6. 
 
 Hixmxr. KXPRESSIONS. 
 
 See Grant 30, 36, ^y. 
 
 BLANK INDORSEMENT. 
 See Promissory Note 1. 
 
 BOXD. 
 
 1. The court will not so construe the 
 recital in a bond as to defeat its ope 
 ration and render it a nullity. .'.. 
 cfifn v The Mayor, i/c. 41 
 
 A bond given by one partner for a 
 simple contract debt due from the 
 partners to a creditor, and accepted 
 by him, is by operation of law a re- 
 lease of the other partner, and an ex- 
 tinction of the simple contract debt, 
 at kw and in equity. ll'ili- 
 // . 474- 
 
 3. Such bond, although not bind- 
 ing on the partner who did not exe- 
 cute it, is obligatory on the partner 
 who did execute it- Ib. 
 
 See Auctioneer 1. 
 
 Judgment 2, .">. 
 
 Non Est FactumJ. 
 
 Surety 1. 
 
 Uncertainty 1. 
 
 BOUNDARIES OF LAND. 
 See Hearsay Evidence 1, -1, 
 
 BREACH. 
 See Covenant 
 
 BRITISH SUBJECTS. 
 
 1. No fifiliffi Mibject could hold lands 
 in this state on tlie 19th of November 
 1794. Owin^x v Nvr'juuod's Lesser, lo4 
 
 Set Confiscation. 
 
 ' <* 4. 
 
 Mortgage 4, 5, 7. 
 
 BRITISH TREATY. 
 See Confiscation 3, 4, 6. 
 Mortgage 5, 7- 
 
 c. 
 
 ( M r.s w SURVF.YS AND CHANTS. 
 
 #K Grant 30, 33, 34,: 
 
 Location of LaJndb 8. 
 
 u nov 
 
 1. If the plaintiff in an action of af- 
 mripxit files an account in court i on- 
 taifiinythe iteins of his claim against 
 the defendant, he is precluded from 
 ,' into evidence to establish his 
 claim in a nuuiiur different from tlr.it 
 in which he has , I. . ti .1 b\ his account 
 to consider the defendant his debtor. 
 J)e > /</. 
 
 See Contract. 
 
 Foreign Laws. 
 
 Joinder of Actions 1. 
 
 CAUTION \H>NI:Y. 
 
 See Composition Money. 
 
 CAVEAT. 
 S>r Grant 17. 
 
 Certificate of Survey It 
 
 CAVEAT EMPTOR. 
 
 See Warranty. 
 
 rr.RTAiNn 
 
 See Ejectment 2'J. 
 
 Verdict 4. 
 
 CERTIFICATE. 
 See Acknowledgment of Deeds 5. 
 
 Clerk 1. 
 
 CERTIFICATE OF SURYI", 
 1. Where a certificate of resun 
 
 liable to be vacated upon a raveaf, 
 and the vacant land ii-lnd.v} therein 
 might be and was legally granted to 
 another person Whether or not a 
 grunt for the land in the first mention- 
 ed certificate will puss the ! 
 lid in annul 1 1 a/ I 41 
 
 /tii /H mini tt e! n/. I*.<u<tt v WarJitU, 161 
 
 Fraud 4, 6, 7. 
 
 Grant 15, 16, 1'J, 20, 21, 22, 24, 
 
 41. 
 
 Land Office 10, 11. 
 
 Parol Evidence 3. 
 
 Relation. 
 
 Warrant of Kesurvcy 3. 
 
 ; i i ( i i K ' 
 
 1. A judgment by confession i; an ad- 
 mission of the right of the nominal 
 plaintiff to recover the pcnaltv of the 
 bond; and whether the judgment i* 
 in t!,e ri.^lit of th<- plaintiff, or for the 
 use of another, is not material, and 
 cannot be a cause of revrsin^ the 
 judgmeut. M'Mtchen v The Mayor. 
 tfc. 41
 
 INDEX. 
 
 517 
 
 2. Whether or not a trust estate is an- 
 swerable to the creditors of win!. /jut 
 trust? I/vllingsworl/i, et uz. v M'Dn- 
 nuhl, ft at. 230 
 
 See Assumpsit 4. 
 
 CHALLENGE. 
 
 See Criminal Prosecution 6. 
 
 CHANCERY. 
 
 Sec Court of Chancery. 
 
 CLERK. 
 
 Set. Evidence 8, 17, 31, 45. 
 
 Commission and Commissioners 3. 
 
 COLLATERAL CONDITION. 
 
 See Judgment 2, 3. 
 
 COLLATERAL QUESTIONS. 
 
 See Evidence 38, 87- 
 
 Fraud 6. 
 
 Verdict 6. 
 
 COLLOQUIUM. 
 
 See Slander 7, 8. 
 
 COMMISSION AND COMMISSION- 
 ERS. 
 
 1. In executing a commission issued to 
 a foreign country for the purpose of 
 taking testimony, notice i.s not neces- 
 sarjVbut time should he. given, that 
 the opposite party might exhibit 
 cross interrogatories. Oicings v tfw- 
 u-ood's Lessee, 06 
 
 2. As to the manner of striking com- 
 missioners and issuing commissions to 
 a foreign country to take testin ony. 
 l)e tfolfl-y v Terrier, 196 
 
 o. In executing- a commission to take 
 testimony, it is not necessary that tiie 
 commissioners should appoint a. clerk. 
 Beard v Ileide, 442 
 
 4. Depositions returned under a com- 
 mission issued to Pennsylvania to take 
 testimony in the cause, were not per- 
 mitted by the general court to lie 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. Sorting's 
 Lessee v Singery, 459 
 
 5. Depositions similarly taken were not 
 permitted to be read in evidence, al- 
 though offered in evidence by the op- 
 posite party; concurred in by the 
 court of appeals. lb, 46'J 
 
 See Foreign Laws 2. 
 
 COMMON LAW, 
 
 Sec Conveyance 3. 
 
 -T Trust and Trustee I. 
 
 COMMON RECOVERY. 
 
 See Feme Covert 2. 
 
 COMMON WARRANT. 
 
 1. A common warrant may be located 
 on any uncultivated land in the coun- 
 ty, to the surveyor of which it is di- 
 rected, if no person has acquired a 
 right of pre-emption to such vacant 
 land. Hammond et al. Lessee v Kvr- 
 ris, 132 
 
 See Grant 40. 
 
 COMPETENT WITNESS. 
 
 1. Where there is a mortgage;, with co- 
 venant bj the mortgagor that he will 
 pay the money, and he assigns his 
 equity of redemption, is he a com- 
 petent witness for the assignee to- 
 prove that the money loaned was con- 
 tinental money? Worlhiiiirtun v Bicb- 
 nell, 53 
 
 Sec Hearsay Evidence 1. 
 
 Witness 2. 
 
 COMPOSITION MONEY. 
 
 1. Aslothe manner of applying lanj 
 warrants to the payment of composi- 
 tion money. Iluiitnumd et al. Leaver o 
 WarfieM, l.itJ 
 
 2. The jury are to find when the com- 
 position money was paid on surveys 
 of land. JL 
 
 0. Where the relation of a grant to the 
 certificate of survey depends upon 
 the time when the composition money- 
 was paid. Hammond et al. Lessee 
 jV</m', 152 
 IIi,i/nno)id et al. Lessee v lVurfield t 152 
 
 See Grant 41. 
 
 CONDEMNATION. 
 
 See Attachment i. 
 
 CONDITIONAL SALE 
 
 See Freedom 1. 
 
 Manumission 3. 
 
 CONFESSION. 
 
 See Executors and Administrators & 
 
 Judgment 2, 3. 
 
 CONFIRMATION- 
 
 See Acts 2. 
 
 Contract 11. 
 
 CONFISCATION. 
 
 1. Lands liable to confiscation may l>e 
 granted by the state under an escheat 
 warrant. Gwings v Norwood's Lessee, 
 
 99 
 
 2. Tlic state by its commif.ioners was 
 in posocision of all British
 
 518 
 
 i:\ 
 
 . -indrr 
 
 J.l by virtue of the act of conlise.v 
 
 tJu*. ami the act o appoint conu'iis- 
 
 Ib. 101 
 
 & >o British subject could hoUl land 
 
 w* this state on the li>th of November, 
 
 line w'.icn the trtaU vn-ii 
 
 .'<i'i was m:uic. /*. 
 
 1 .mis were n*>rtgagcd to a 
 
 ri(i\/i subject, oil failure of payim-nt 
 
 tt" the mortgage m>n.-\, a complete 
 
 Icy-' 'V.d in the mortgagee 
 
 liable to confiscation, and \\ us vested 
 
 itttlie state ur.dcr the acts ofconfisca- 
 
 iiihject to. the right of redemp- 
 
 tiun; and the riH?/i treaty c.u>nut 
 
 operate on sueli a ca.se. Uu 
 
 jfurwood 1 05 
 
 toward r J&tfA, rt /. Le*Kt % 2.~>, 
 
 '. ("notffj 
 
 5. The acts of confiscation vested tlie 
 risin and possession of all lands lia- 
 ble- to confiscation, in the commission- 
 ers on behalf of the state, uud dives- 
 led the poi.--.es. >i on of all oilier pei^ons. 
 llni I I ~i 
 
 confiseation thcequlta. 
 interests of Jfrt/wA^subjecta in 
 were confiscated without (j^? 
 or entry, or other act done, 
 atxl ahhough such ei(iiit:ir>li- inttfcs'.^ 
 vere iwt discovered until long after 
 tW t rt-Hty of peace. fSmitfi^ et al. v 
 
 i >N rifiUOVS VAC \\CY- 
 Set \\ an-.int of HesurviA 4,5. 
 
 5<-c Escheat 1,2, 3,4, 5. 
 
 CONSENT. 
 See Evidence '^ 
 
 CONSIDERATION. 
 S Tmirt of Chancery 34. 
 
 Evidence 74. 
 
 &M Acknowledgment of Deeds I, 2, .1, 
 4,5. 
 
 - Acts of Assembly I, 2, 3, 4, 5, 6. 
 - Contract 5. 
 
 Con\-\;*nee }, 2,3. 
 ' ' Covenant. 
 
 ( -execution 1, ~ 
 
 - I)c\i- 
 
 - linint '^3, 24. 
 " Guaranty 1 - 
 
 " - Indictment 1. 
 
 - - Kcr.iud 1 . 
 
 - - 'I > st:iinri!t:irr System 1 . 
 
 - - Tn:->t , t i>d Tru-tec I . 
 . - I 
 
 
 
 M' 
 
 See Court of Chnnoery J, 2 
 - .Mortgage I,* 1 . 
 
 ( uvUM.KNXT. 
 1. A will to take cll'i-et i-u :i t -iiii' 
 
 cy, has no effect if vlie contingency 
 ciui-s not happen ort&keeHcct. Sec 
 V\ ILL o, awl 
 
 v M'Bonaidi 316 
 
 . 
 
 CONTHAt I 
 
 A contmct executed i' 1761, 
 ing to convey a tract of land, enforc- 
 ed by tUe court of chancery in fa- 
 vour of the li-ii- at law, on bill filed 
 in i*W. Unffntr v J)icl>>'"i, 
 
 If ; contract, is in writinjj it will it- 
 self show where it is to be executed; 
 but if it docs not appear l>\ the face 
 of i|, the presumption is that ' 
 be executed in the country wherf it 
 was made. H it doi s ^\>\>- .ir that it 
 haj .- view to be executed in a parti- 
 cular country, it must be carried into 
 effect pursuant to the laws ol 
 country. 1)> ,W/,-y r 7Vt-ur, 
 
 If a contract is by parol, the party 
 is at liberty to go into evidence to. 
 prove the inU-niion of the parties as 
 to where it was to lie executed. In. 
 
 A contract made in a foreign coun- 
 try must be governed by tin: laws of 
 that country, and no act now lodgment 
 of the debt in another country can 
 change the original na<ure of the 
 debt. Ib. 221 
 
 It is a general principle, which ad- 
 mits of few exci p;ion> t that in con- 
 struing contracts made in a !< 
 country, the courts are governed by 
 the Isx li> n as to what respects the 
 ice of the contract; that is, the 
 rights acquired, and the ohl'iL. 
 creat'-d by it ; and the remedy or mode 
 of enforcing the contract is to be 
 conformable tu the laws of the coun- 
 Uy where the action is instituted. 
 
 ///. 228 
 
 Where by the terms of a contract it 
 is to be executed in another country, 
 there the parties to it, by coiuiuon 
 consent, adopt the laws of that coun- 
 try us* the rule of decision. Ib. 
 
 Where a contrart is confra bonu 
 mvr'-ft as for the pricv of prostitution, 
 %ach a contract, though Icp.d is. s-n,.; 
 countries, would not be cntbrceil in 
 thi state. 
 
 A contract made in one county
 
 INDEX. 
 
 519 
 
 view to the execution or perfor- 
 nuuice of jt in another country, is 
 governed in all things both as to its 
 essence and the mode of enforcing 
 H, bv the laws of the latter country. 
 
 A. 
 
 9. If a. contract is made in this state be- 
 tween foreigners, and the debtor dies 
 in a foreign country, the creditor m.iy 
 recover in this state according to our 
 laws. fb< 
 
 10. The court of chancery will not en- 
 fo ; ce a specific performance of a spe- 
 culating contract for continental mo- 
 ney, Hupklivi v Stump el ul. otJl 
 
 11. If a mortgagor of slaves sells thorn 
 for a full consideration, and after his 
 discharge under an insolvent law, 
 purchases them of the mortgagee, 
 his subsequent ac'.s in perfecting his 
 title to the slaves, will enure in law 
 to confirm and not to defeat his con- 
 tract with the vendee, Dorsey v Gi;s- 
 iHLuiuy, 4 ' 1 
 
 12. As to a variance between a descrip- 
 tion of land contracted to be sold, 
 and conveyed, and that used in a 
 grant of the land. See COURT OF 
 C :IA \<- ic ar 33^ and Ilamm&tid v Saji- 
 phigton, 446 
 
 J. 7 ,. There being no designation of part 
 of a tract of land, contracted by a 
 bond of conveyance to be conveyed, 
 nor any description whereby it can 
 be identified, parol evidence is not 
 admissible to show that it was intend- 
 ed by the parties to be laid off in a 
 particular manner, and the bond is 
 void for uncertainty, except on the 
 principle of election. JJuntt and 
 Parks v Gift ct uL 498 
 
 Srt Covenant. 
 
 Creditor 1. 
 
 Equitable Estate 2, 
 
 French Laws. 
 
 . Parol Agreement. 
 
 CONVEYANCE. 
 
 3. The same words, which in a devise 
 of land would create an estate tail, 
 will in a conveyance of a freehold es- 
 tate create a fee tail. Hullingswurth 
 et HJC. v M f Donald ef ul. 230 
 
 ,?. In a conveyance of a freehold or IE- 
 gal estate, technical words an-, ap- 
 propriated 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 
 dt &irjn>rt> y.'u> arc not indispensably* 
 iaur) , but may be supplied. ty 
 
 words equipollent or tantamount, 
 plainly designating or poi-itiug out 
 the body from whom the iicirs inhe- 
 ritable are to issue or descend. ft>, 
 o. Whether or not the court is ut iiber- 
 ty, in expounding a deed of convey- 
 ance 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 construc- 
 tion of a conveyance of a frcehoiii 
 estate, and to give an exposili<,> 
 cording to the. invention of the p:.r~ 
 ties as in a will' L' 1 :, 
 
 4. A deed of conveyance, executed by 
 a tenant in tail, and not enrolled 
 within the time prescribed by law, 
 but enrolled thereafter, and after the 
 djulh of the tenant in tail, under a. 
 decree of the court of chancery for 
 that purpose, cannot operate against 
 the issue in tail. Janes ct ul. vJout?, 
 
 281 
 
 5. An estate tail is not within the pro- 
 visions of the act of 1785, ck. 72, t. 
 
 11, authorising the chancellor to de- 
 cree the recording of certain deerti- 
 
 L 
 
 6. If a grantor of land, residing in -x. 
 particular county, and having a tem- 
 porary residence in another county. 
 in neither of which counties does the 
 land lie, acknowledges the deed hi 
 the county in which his temporary 
 residence is, such deed is not gooi 
 and valid in law to pass and transfer 
 the grantor's interest in the, larui. 
 I fall v Gittings's Letscc^ SS5 
 
 7. A temporary residence in any county 
 of the state, is not sufficient to en- 
 able a grantor, being a citizen of tle 
 state, to acknowledge a deed, durir.^ 
 such temporary residence, for L'.i.d 
 lyir.g in any other county of tins 
 state. il). 391. 
 
 8. The wnHs "Irgatly nutlurrhed and as- 
 ,^'iv/c.y," in a certificate of the clerk of 
 a county court to a deed of convey- 
 ance acknowledged before two jns 
 tices of the peace of that county, ISA 
 substantial compliance with the di- 
 rections, and within the meaning o'f 
 the act of Nsoentfier 1766, ck. 14, aixl 
 are word* of the same import as **(!- 
 iy ammissimed and fnoorn." fb, 
 
 9. As to a variance between a descrip- 
 tion of land contr.*rted to hesoMsiid 
 conveyed, and that mentioned in 
 grunt of the laud, see COLUT **r 
 di ISTKBT 3;>, and 
 
 Hllinnuni'l ! $;i/j/) ; n>;tiin, 4-46 
 
 10. Where the court of chancery, in.
 
 520 
 
 ixnr.x 
 
 decreed a 
 '>y the par- 
 
 !fee 
 
 <'DI ii r ind 
 
 * .'. 487 
 
 __ i; .1. mi !-. ! - ' 
 
 , ' i, Cl, 44. 
 
 _ Dewripuoa J. 
 
 . _ i ', <<. 
 
 - ! ',57. 
 
 - IVmc Covert I, 2, J. 
 
 - Inspv'v.tnus I . 
 
 - l.ocatMii of I .amis 4, 14. 
 
 - - Mo.-tir... 
 
 - Parol Agreement 2- 
 
 . ' 'Hi .;. 
 
 - Propriety.-. 
 
 - State 1 . 
 
 rni'Y. 
 Sec Authentication 1 . 
 
 - Kvideiice :,.;, -15, 5?, 73. 
 
 V.i .: v Public I . 
 
 Oldce Copy. 
 
 i o :'<>; \ : 
 
 other or not n corporation can 
 ii- to and prosecute an action un- 
 
 iey L-^ally uuiii- 
 
 by letter of attorney tinder their cor- 
 
 por.iu -. il ' (Jit ere. The warrant of 
 
 attn: >iot be spread o;i tlie 
 
 .: J. J/'JA Jte-'i o Tlit MH-JIH; < 
 
 41 
 
 COSTS. 
 
 See Crv.'rt of Appeab J. 
 Dower 3, 4. 
 
 IT HANK NOTE. 
 
 ililipsil J. 
 
 \ ! BRLOC'ATI 
 
 of Lands 3, 5, 16. 
 
 USK AST) DISTANCE. 
 
 >,./. 
 Li.ciUon of Lands 8 
 
 UT- 
 
 ^^ !' rt. 
 
 - ! '-, G. 
 
 - 
 
 LPPEALS. 
 
 . ')<irt raiiMOt tn 
 
 >f il. ry IK-- 
 
 i s'ipijort of tli<: 
 .'/rtourt. 
 
 41 
 
 -. A il .. rev ot ' ilic cuurt of cbanccry 
 
 in favour of the r.->ntj>I,iiu'i'it, buttln*. 
 
 . 
 
 tlic :ip;)-,-al of tlie dtfciulant,rt\ 
 as to costs and a il> 1 di- 
 
 r<-rtiii)f tint tin- :4|ip.-lli-i- should ro- 
 Hi both courts. IL'ff- 
 nrr v I)i, ' 46 
 
 H',.i-t!,i,i K ti,n r liifl-'itU, 5* 
 
 Ilojf-ni.i ' 46 
 
 ! , - 
 1'roccdendo j, J. 
 
 COURT OF CHANCERY. 
 
 1. A bond for the convi^.-xi! 
 
 of laud, executed in 176', i i. 
 by t!ie court of chanc.cn in favour of 
 K ir at hivr of the obligee, on a 
 bill tili-d in I71>i. / 
 
 40 
 
 2. W i; inrf the cqnita- 
 bK- iiUi-rcst in land, is in 
 
 yi-t if his equitable interest is not 
 kii )-A'n, it will not prrvy;!, 
 t-d, over tlic 1 . .icing 
 
 .iitable ii,' 
 
 5"> 
 
 ; ( .\ i ci cu ' '*, of iv al 
 
 and pel-villa! propi-:- . .re the 
 
 payment of a su:u in the tfu-n ciinvnt 
 money, and it \ 
 
 between tlu-m that the personal pro- 
 perty :;houU !) . <m A', en 
 do;-sinij on the iiiort^:A'e that it 
 specie debt. A curm-vcd 
 hib equity of redt-nijiiin'i in t 1 , 
 
 to (', wlio, on the 
 tions of B, of the sum due < 
 mortj-'agv, and th;.t it should not he 
 released unless C executed to 1. 
 bond for that sum, did nccoiilin 
 cctite such bond; or. - lit at 
 
 la\v \v:s brought, and judgment ren- 
 deivd thereon. On a bill til'-i! 
 an injunction was obtained t 
 pl-oe The auditor 
 
 vas ordered to Mate the nn.r 
 d< Li in continental nioney, reducing 
 it ii.to specie at J for 1, with i;r 
 and credit the pawnrnts made; and 
 on .i.-nt the debt appeared 
 
 to be overpaid. Drcrctd, th.it the in- 
 junction I>e perpetual, tt'ort/tinqfr-n 
 el al v Kickncll, 58 
 
 4. A contract for tile purchase of land, 
 bnnn fide made for a vahuble consi- 
 
 'erest 
 
 in the vendee from the time irf the 
 'ition of the contract, a If hough 
 the money is not paid at. that time. 
 A\ hen the money is p:*id ar,:.->r. : 
 the terms of the contract, the v 
 
 .itled to a A jicf^- 
 
 iu:nt obtained by a third person a-
 
 INDEX. 
 
 g-ainst the vendor, rnesne the making 
 the contract and the payment of the 
 money, cannot deft :tt the equitable 
 interest tints acquired, nor is it a iirn 
 on the land to affect the right of sneh 
 ct'*tui yuc Ifiul. Ilunii^on v l!,I,lcn, M 
 5 r Where A, in consideration of a ifebt 
 due from him to II, assigns to him 
 (not tinder the act of 176j, ch. 23, *. 
 9, 10,) the howl of C, and (' is or be- 
 comes insolvent On a hill hied hy 1J 
 against A, to compel payment of the 
 bond so assigned Dtc.rcnl, that the 
 court of chancery had no jurisdiction; 
 that if the assignment was an extin- 
 guishment of the original debt, the 
 complainant was not entitled to relief 
 either at law or in equity; and if the 
 assignment was not an extinguish- 
 ment of the original debt, the com- 
 plainant had his remedy at law on 
 the original contract, there being no 
 circumstances disclosed in the bill to 
 make it necessary for him to resort to 
 a court of equity. Girver v Christie 
 & Jay, 67 
 
 6. A parol contract between a father-in- 
 law and son-in-law, that the father-in- 
 law would give a real estate to his 
 grandson, in consideration of the son- 
 in-law paying one half of the value of 
 the land Not enforced, though pos- 
 session was held hy til; son-in-law, 
 and a part of the purchase money 
 paid. IVlngale r Dail, 76 
 
 7. A specific performance of a bond for 
 the conveying of lands, executed in 
 1777, decreed, on bill filed in 1797, al- 
 though strongly contested on the 
 ground that the bond was never exe- 
 cuted, or if executed, that it was ob 
 tained by fraud. Suuiiders et ux. v 
 Simpson cf. itx. 81 
 
 8. A decree of the chancellor is subject 
 to his control only upon a bill of re- 
 view, or a bill in the nature of a bill 
 of review. HoUingsvxfth et ux. v 
 M'/),->ntil,tet al. 230 
 
 9. A hill of review lies after the decree 
 is signed and enrolled, Ib. 
 
 10. A bill in the nature of a bill of re- 
 view lies after the decree is made, but 
 before enrolment, Ib. 
 
 11. A decree must be considered as en- 
 rolled after it is signed hy the chan- 
 cellor, and filed by the register, Ib. 
 
 12. A bill of review will only lie for 
 two causes Krror apparent on the 
 decree, or for some, matter relevant, 
 existing at the time of the decree, and 
 discovered since, Ib. 
 
 13. A bill of review cannot be support- 
 ed for matter existing at the time of 
 the decree, and discovered since, with- 
 
 \OL. ii. 66 
 
 out affidavit of such, and the exis- 
 tence of it at the time of the decree, 
 to lay the foundation for applying to 
 the chancellor for his leave to hie a bill 
 of review, and obtaining such leave, fb. 
 
 14. On petition suggesting proper mut- 
 ter, supported by affidavit, as the 
 ground for filing a bill of review, the 
 chancellor exercises his judgment on 
 the propriety of interfering or med- 
 dling with his decree, for the cause 
 disclosed, and grants or rejects the 
 application accordingly, Ib. 
 
 15. A and B entered into a bond to C, 
 on which separate suits were brought, 
 and judgments recovered. B pays 
 both judgments, and, as surety there- 
 in, obtains an assignment of the judg- 
 ment against A, from the attorney of 
 C, and issued an execution in his owrt 
 name, as assignee of C, against A, 
 on the judgment against him, for the 
 whole sum of money recovered. A 
 filed a bill in the court of chancery 
 against B, charging that the bond was 
 for a joint debt due from both of 
 them; that he had paid nearly one 
 half of the debt, and that B was lia- 
 ble for the other halfAlso, that B 
 was indebted to him in- & suia of mo- 
 ney recovered by a decree in chance- 
 ry, which he refused to discount- 
 prayer for general relief, and for an 
 injunction to stay the execution. In- 
 junction granted. B by his answer 
 denied that the debt was a joint oe; 
 that he was the surety of A in the 
 bond. He admitted the- decree ob. 
 tained, but that he had appealed there- 
 from, which appeal was depending 
 and undetermined. Decreed* that B 
 was a co-principal with A in the bond 
 to C r on the ground that he received 
 in specifics, as his .share of the per- 
 sonal estate of hi* father, (for whose 
 debt the bond was given,) as a consi- 
 deration for his becoming a principal 
 in the bond with A. That A be charg- 
 ed with one half of the amount of 
 the bond, with interest, and credited 
 with the payments by him made, and 
 the amount of the decree since finally 
 made in his favour, and be also charg- 
 ed with B's distributive share of his 
 father's estate, with interest. By which 
 a balance was due from A to B. J)e- 
 rrcfd also, that the injunction be dis- 
 solved, and tliat B be permitted to 
 tke out execution at law in the name 
 of '.', for the use of B, against A, oil 
 the judgment at law, for the said ba- 
 lance, with interest, &c. and costs at 
 law. Norwood v Norwood, 238 
 
 16. An answer tp a bill in chancery is
 
 332 
 
 LVDEX. 
 
 hot to be considered a standing pood 
 il' it be contrary to the testimony ot 
 at least two witnesses, <>r of ( 
 
 and Mrong equitable circum- 
 tar.i 
 
 ip ct ul. 
 
 17. On a bill ill the court of chancery to 
 be ! AJnst the verdict of a 
 jury, and judgment therein rendered 
 at law, it appeared th:it the appliculi- 
 on in effect was, that the chancellor 
 act a* a tribunal of appeal from the 
 verdict of a jury. There was 
 
 no surprise on he complainant whilst 
 defendant at law; no discovery of 
 testimony since the trial at law, and 
 there was no sufficient proof of 
 Fruud. Derrntl, that the facts set 
 forth by the complainant, in his bill 
 of complaint, were not sufficient to 
 warrant the court of chancery to in- 
 terpose and grant the relief prayed. 
 
 *179 
 
 18. The court of chancery cannot de- 
 cree that a deed of conveyance, exe- 
 cuted by a tenant in tail, may be re- 
 corded after the expiration of the time 
 limited by law for the recording 1 of 
 deeds an estate tail not being ' 
 
 the provisions of the act of 1785, r/i. 
 72, a. ! I. Junes ft al. r Jones, 281 
 
 19. The act of 1797, c/i. 114, a. 4, di- 
 recting 1 "that if a cause in the court 
 of chancery is set down regularly for 
 hearing; or submitted to the chancel- 
 lor, and one of the parties dies there- 
 after, and before a decree passed, the 
 cause shall not abate, and the chan- 
 cellor may decree as if such party 
 were alive," cannot take effect in a 
 cause where there might be a decree 
 for a reconveyance of land to the par- 
 ty dead, on paying 1 or bringing mo- 
 ney into court. Brngden v J/' 
 /.Vr. L*c. 285 
 
 20. A bill in the court of chancery, 
 (which was afterwards, on the death 
 of \V, thf: complainant, revived in the 
 name of his executor, legatees and 
 devisees,) charged that B, (the de- 
 fendant and uncle of \V,) committed 
 a fraud in procuring Ws execution 
 and acknowledgment of deeds con- 
 veying his whole estate, real and per- 
 
 ' ftonai, variant from thos-; In- had 
 ! to cx'-cnte; that the deeds u 
 tended only as a security for .. 
 due from W to H, and not 
 conveyances in fee simple Prayer 
 for a discovery, and permission 
 deem the property intended to be 
 gaged, on paying the debt, and 
 for a reconveyance, und other relief. 
 
 Iff!'!, without deciding whether of 
 not there was fraud in obtaining the 
 dci ds, that the deeds are to be 
 
 Mi-d by a weak young- man, 
 con-nun-, ility to protect 
 
 hi-, property, or to niav.uge hi> ov. n 
 concerns, and therefore resol\ingtw 
 place himself im<!< r t!u- gtiidan- 
 protection of an :di< ctioir.ite relation. 
 That it could not be imagined ho 
 ni'-ant to convey every part of'l. 
 pK- property tor the bcnciit of his 
 kinsman only, and to be absolute}} 
 dependent on him for suhsi-- 
 The ' (instruction is, 
 
 that the deeds \vtre intended to se- 
 cure to I? a debt, which was trifling 
 in comparison of the value of the 
 property conveyed. Here then w 
 .Irir.i;- trust, or here there wa 
 an equity of rcdunption, or here wag 
 a silly intemperate young man, who 
 really did not know what he was about, 
 and who therefore ought to !i.. . 
 protection of a tribunal, whoe pecu- 
 liar duty it i.s to watcii over i 
 lunatics, madmen and fouls. If \V 
 . of the purport 
 of the deeds, Mt it may 
 it v.-ys sufficient toy 15 to have an ample 
 security for his deot, and to - 
 his nephew from all imposition which 
 might be attempted by others. 1k- 
 ', that on payment to H, on or 
 before, Etc. of the sum of money ex- 
 pressed as the conMderation in the 
 bill of sale, with inte: > lioultl 
 
 convey, fcc. to the executor complain- 
 ant, all the personal property, &.c. 
 And on pa\nieat to B, on or before, 
 &.c. of the sum of money cxp: 
 as the consideration of the deed ot* 
 ccnve\ance, with interest, &c. H 
 
 lit convey, Stc. unto the dt 
 complainant^, and their heirs, accord- 
 ing to the will of W, the land which 
 i>y W to R, J;c. Bnt 
 if the complainants should fail to niak-r 
 pavments, f^c. there should be s-ld. 
 for the payment to B of the said two 
 sums of money, with intere-t, &.C. so 
 much of the per.-onal property and 
 land as should be , &.C. 
 
 I'.x'r. i'c. 291 
 
 ',\. I'ravid is not to be considered as a 
 single fact, but a conclusion to b 
 drawn from all the circumstances of 
 th- case. H. 'X)'2 
 
 22. The relief which may have been 
 obtained by a complainant who li:<s 
 died, nriy be granted to his repix-sen 
 tatives reviving the suit. Jf>. 
 
 23. A representative instituting an ori
 
 INDEX. 
 
 523 
 
 jj'mnl suit may have the same relief 
 winch would have been granted to 
 his ancestor, devisor, testator, &.c. Ib. 
 
 24. A K being- indebted, as deputy she- 
 rift' and deputy collector, to It A, 
 suits were brought on his bonds as 
 such, and judgments obtained there- 
 on. A few days before the judg- 
 ments were obtained, A R conveyed 
 the whole of his real and personal 
 f slate to A J and U H, who were sure- 
 ties for A H in the bonds before men- 
 tioned. K A Hied his bill against A 
 R, A J and U U, charging that the con- 
 veyance was executed fraudulently, 
 and with intent to deceive and injure 
 him, and though apparently for a mo- 
 ney consideration, was in truth exe- 
 cuted to guarantee and indemnify 4 
 J and RJB, as sureties in the bonds; 
 that A K retains possession of the pro- 
 perty, and has sold a part thereof for 
 his own benefit. Prayer for a disclo- 
 sure of the trusts and vacation of the 
 deed, and for general relief. A J, in 
 his answer, stated that A R was in- 
 debted to him for money paid as his 
 surety to other persons, and also in- 
 debted to him on open account, and 
 for money lent. Held, that the real 
 and personal property, and increase, 
 if any, remaining in the hands of A 
 K, A J and U H, or any of them, be 
 sold for the purpose of paying, in the 
 first place, the sum of money due to 
 K A. .rlinoKS v Robinson tt al. 320 
 
 25. Where a bill had been filed in the 
 court of chancery, under which tes- 
 timony was taken and returned, and 
 the bil! afterwards dismissed by the 
 complainant, who filed a new bill 
 against the same defendants, to obtain 
 the same relief for which the former 
 bill was filed Held, (on the petition 
 of the defendants,) that the testimo- 
 ny so taken in the former suit be re- 
 ceived and read in evidence in the 
 new suit. Hopkins v Stump ct al. 
 
 301 
 
 26. The court of chancery will not en- 
 force a speculating contract for conti- 
 nental money. Ib. 304 
 
 27. The answer of a defendant to a bill 
 in the court of chancery will prevail 
 unless refuted by the testimony of 
 two witnesses, or of one witness with 
 equitable circumstances. Ib. 
 
 28. If interrogatories stated in a bill are 
 not answered, the complainant has a 
 right to except to the answer, and if 
 the interrogatories are proper, the 
 defendant will he compelled to an- 
 
 plainly, fully and explicitly, if 
 
 then any material matter charged in 
 the bill has been neither denied nor 
 admitted by the answw, it stands on 
 hearing of the cause for nought. Ib, 
 
 29. If A has purchased land from D, 
 and paid for it, without receiving a 
 conveyance, or if B holds in trust foi* 
 A, in cither case A has an interest lia- 
 ble to be taken and sold on -A. fieri fa- 
 cias, and the purchaser is entitled to 
 the aid of the court of chancery to 
 obtain the legal title. Ib, 
 
 30. But if A has only contracted and 
 given his bond for the purchase mo- 
 ney of a tract of land, and received 
 jn return a bond of conveyance 
 Has A such an equitable interest as ia 
 liable to be sold on * fieri facias so us 
 to place the purchaser in the room of 
 A? Ib. 
 
 31 . 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 H 
 certain time, he was to have the be- 
 nefit of the purchase; but as he could 
 not raise th;; money, it became neces- 
 sary to sell a part of the premises to 
 reimburse C U which part W D, 
 and M his wife, were desirous to pre- 
 serve 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 was, previous to the sale, 
 made known to R W, who approved, 
 and it was agreed that J S, (who con- 
 sented,) should be the nominal pur- 
 chaser, and U W was to become his 
 surety for the payment of the pur- 
 chase money. J S became the pur- 
 chaser, and it was known and under- 
 stood at the time, that he purchased 
 for M, the wife of W U. In the bond 
 fpr the purchase money R W became 
 surety for J S, and possession of th 
 premises had always been in VV D, 
 \vho procuring a part of the purchase 
 money, applied to R W to obtain a 
 bond of conveyance from C D to M 
 the wife, 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 no- 
 thing to do with it. J S had been in- 
 duced, in order to secure R W, to di- 
 rect C I) to give a bond of convey, 
 ance to H W, who assured J S that 
 no advantage should be taken of W 
 Pj and that when he paid the pur-
 
 INDIA 
 
 chnse money, a deed should he exe- 
 cuted to his wife M. The pi* 
 won i I) to K \V, who 
 
 brought an ejectment against NV 1). 
 Tin- uiiiuiint of pnncip.d and interest 
 of the purcht.se mm, ider^'l 
 
 t>y \V 1) to II W, and a deed denvind- 
 v Inch he refused. W 1). and M 
 vifc, tiled their bill against U \V, 
 to he quieted iit their poss.-ssion of 
 the promises, Hnd to compel a con- 
 veyance from him to M the wit- 
 DtcretiL, that R \\ coiuey the Kind ia 
 question to \V D, and M liis wife, in 
 fee simple, and tlut an account he 
 Stated, Stc. and the balance due he 
 paid at tlie time ii \V shall cou\\-v 
 the land. MB. r It'a/?' . 
 
 >\\\ in chancery, with all the pro- 
 ceedings and tlje decree thereon, can- 
 not be read in evidence in a case be- 
 tween different parties from those 
 named in the proceedings. Doney v 
 ii'uy, 409 
 
 33. N II contracted with, and for a va- 
 luable consideration conveyed to J 
 S, by metes and bounds, H(J(, 
 part ot' a tract of Ian . lying 
 
 jm-J being, in the state of Kentitfki/, 
 in the county of Bourhon, and n/i "i* 
 riviin branch of Licking. " A grant of 
 the land described it as "lying and 
 beinj in the county of Bwrtton, on 
 fi' uniin launch of Licking, in the 
 State of /".y.'/u'a." After the grant 
 of the land, a new state, by the name 
 of Kentucky, was formed fVom /"<.- 
 gitiia, and the county of Rnurbon be- 
 came a part of Ktntucku, winch c"un- 
 ty was afterwards divided, and two 
 Hew counties erected, called Clarke 
 and Alison counties, and the hind 
 now lie- in those t\TO counties. J S 
 filed his bill in chancery to have the 
 contract vacated, and the coti 
 tion money repaid to him, &.c. De- 
 ', that his bill be dismissed. 
 Hammond r Sa f >[>h!^to:i, ' 446 
 
 31. A II hcing entitled to a lot of ground, 
 but ignorant of his right, was induced, 
 as he alleged, by the fraud and im- 
 position of the ugvnt of P, U, in 1791, 
 to execute a conveyance to B B for 
 tin- lot on a am*ll consideration, lie 
 filed hi* bill jn chancery in 1798, to 
 have the conveyance vacated, &c. 
 The answers of 1J H's r-.-pr 
 and the agent, denied all fraud, &c. 
 jfecrettf, that as it do6 nut ap|> urthat 
 fmud was perpetrated, or if it w:is, 
 that li II WH a contriver or privy to, 
 a-tuker of it; as the complainant 
 suffered many \cara to cl*p before 
 
 he filed his hill; as the property 
 since been greatly improvi . 
 changed, and hath devolved on i< 
 reprecentatives; a^the argunu-nt from 
 conveiiiei: 
 
 flii'jnce, the eomplaiinnt is not enti- 
 tled to recover. Hill dismissed. // 
 ,,iil'n,< r Hall, rial. -114 
 
 .35. TrandlH-'. 1 - \ 'is tenants 
 
 in common, under the act to duvet 
 UN, wi'li s s. i.fand in, (among 
 ot!ier>, ) of a lot of ground, eon" 
 separately with <i K, an i 
 com ey to biot all Iheir interests there* 
 in, <c.i (hi pa\ ment to eaeii oft 
 $300; and the n. i, po<- 
 
 ; to (jr 
 
 K, who After the death of i an I It F, 
 filed a bill in chancery against "> ^, 
 she being their heir at law, for a sp--- 
 cih'c performance of the contract. J> 
 JS by her answer, alleged that both T 
 and B I" were in Ijuiji'i of intempcr- 
 anci*, and wer-.- alni': I, in a 
 
 state of intoxication. That the lot, 
 was contracted to be sold by them 
 when in a state "t 
 wh'-n they were incapuole ot 
 acting business, at a 
 low its value, 8iC. l)r.T-:i, t!i. - -> 
 convey to (.i Iv one undivided third 
 part of the lot of ground; hut as to ihe 
 contract of B F, on account of the 
 sat i -factory proof of hi-, imbecility, it 
 ought not to be enforced; and that G 
 R deliver to, or pi-runt, > ^ to take 
 or enjoy f.vo unditided third j>. 
 the lot of ground, without her re- 
 funding the consideration pJd l>v him 
 to B F. lit In r/i, 421 
 
 36. Whether or not the answer of one 
 of the defendants to a liil in ri 
 
 ry, is evidence ihcr defen- 
 
 dant' ll'U/ii. 'it, 474 
 
 37. A bond given by one partner fora 
 simple contract debt due from the 
 partners to a credit , epted 
 by him, is, by operation of law, a ve- 
 K-rxse of the other partner, and an ex- 
 tinction of the simple contract debt, 
 at law and in equity. ///. 
 
 38. Ignorance ot >cc-n- 
 
 sequencc -. re 'H ! in}; tvoin a ei editor's 
 
 ;>ting the hond ot one of the part- 
 ners for a simple contract dt-l>t chic 
 from the partm rshij), cannot . 
 or form a ground for relief in equity. 
 
 59. Such a bond although not bind- 
 
 ing on the partner w ho did not exe- 
 cute it, is obligatory on the partner 
 who did execute it. Jb. 
 
 40 Wiicrc a bill was tiled in chancery
 
 INDEX. 
 
 523 
 
 to se< aside end annul a decree, before 
 obtained by tlie cif tcndi.nt agwinst tlie 
 complainant, on the ground of fiaud 
 practised by the defendant in obtain- 
 ing that decree, there appearing to be 
 no evidence of fraud, the bill was dis- 
 missed, but without cmts. On an ap- 
 peal to the court of appeals by the 
 camplainantj that court ujjjlnntd so 
 much of the decree as dismissed the 
 bill, but reversed that part of it which 
 directed that the dismissal should be, 
 without costs, and decreed thai the ap- 
 pellant pay to the appellee his costs 
 incurred in both courts. Jlj/'niui,- v 
 Baker, 486 
 
 41. Fraud may be inquired into as well 
 at law as in equity; and where frauds 
 are clearly established, tlie courts of 
 law, and a court of chur.cery, have 
 concurrent jurisdiction. S'tngtry v 
 The jlltonity-Gemrul, 4ir 
 
 42. On a bill in chancery for vacating a 
 certificate of survey and grant of tlie 
 land, on tlie ground of a fraud pom- 
 mitted by a forgery of the certificate 
 JJffi.', 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 the court 
 admitted evidence to establish the for- 
 ger/, and the jury gave their verdict 
 in favour of the defendant, who claim- 
 ed under the certificate alleged to be 
 forged. Ib. 
 
 43. Although on a bill in chancery charg- 
 ing- 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 for gen, by which a fraud 
 has been committed, will grant relief 
 by vacating the grant, &c. from 
 whence the injury has ari&cn, or will 
 inake such decree as the circumstances 
 of the case render necessary. Ib. 
 
 44- The forgery of a certificate of sur- 
 vey, and the fraud consequent there- 
 on, being fully established Decreed, 
 that the defir.dant, (cla : nang ui.der 
 such certificate and the grant there- 
 on,) should convey to the complain- 
 ant all that part of the land held by 
 him under his grant above mentioned, 
 which is comprehended in the lines of 
 the land granted to the complainant. 
 
 Jit. 
 
 45. W P being seized of a tract of land 
 called P 1), containing 275 acres, ex- 
 ecuted a bond of conveyance to J C, 
 conditioned that lie would convey to 
 
 him, all his right, S^c. "of, in and to, 
 120 acres of land called P U, situate, 
 lying and being;, in the county ol 1', 
 with the appurtenances thereunto be- 
 longing or appertaining, now in the 
 Possession or occupation of the said 
 V P." On a bill in chancery for a 
 specific performance, s.c. /Aid, that 
 there being no designation of the 120 
 acres of land, nor any description 
 win-reby it could be identified and lo- 
 cated, parol evidence is not admissible 
 to show that it was intended by the 
 parlies that the 120 acres were to be 
 laid off at the southernmost part of 
 the tnict. That the bond is void for 
 uiif.erti.inty, except on the principle 
 ci' flection; and there is 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 \V P for part of the tract 
 described by metes and bounds, to 
 one of the defendants, who was a Ixma 
 fide purchaser of the land conveyed 
 to him, without notice that there was 
 any designation of the 120 acres. 
 liuntt cj Parks v Gi*t, et at. 4'J8 
 
 46- A complainant is not entitled to re- 
 lief in equity against the executors of 
 a joint obligor, who was a surety m 
 the bond. Per llani(/fl t Chan. Wil- 
 liams v llc(?i;son, 474, (~note_) 
 
 See Abatement 2. 
 
 Grant 25, 41. 
 
 Injunction 1. 
 
 Preference 1, 2. 
 
 Surety 2. 
 
 COVENANT. 
 
 1. In an action of covenant brought on 
 the llth of February 17W, upon an 
 agreement executed on the 18th of 
 March liT9(\ between M (the plain- 
 tilf,) and G (the defendant,) stipula- 
 ting, inter alia, that a complete 'mer- 
 chant mill should be built by Al, of 
 materials to be provided by G, \\ho 
 vas also to provide a framed or hew- 
 ed K-gged dwelling-house at the mill, 
 for M to reside inland HI agreed that 
 he would take up his residence at the 
 mill in the dwelling house, and woufd, 
 act as the manager and superintcn- 
 dai.1 pf the mill, which \vas to be 
 worked for the joint benefit of M 
 and G in equal parts; thtt is to say, 
 M to rt reive one half of the net pro- 
 fits, and G ihe other Imlf. The co- 
 partnerhip to commence as soon as 
 the mill should be ready to do work, 
 and continue for ten years. That * 
 of book:; should, be kc^t.
 
 INIIKX. 
 
 which should contain all the transac- 
 tions of Hie copartnership, and 
 tl- mint should 
 
 1 In.- lire wood should 
 be turnishid from the farm ort which 
 t; i.>id<d, for the use of two fire 
 places in the nill and dwelling-hi 
 yl tiii- eipial co-t of tlie parties for 
 cutting and hauling it to thr 1. 
 and 1J :n ii -; of lai.d, including two 
 acrrs of bottom l.m.i, most conveni- 
 cnt to M, to he put under good and 
 sufficient fence for his use. 'II 
 duration avcrr>-d, that the mill was 
 completed on the -1st of Junt !'.'.-<, 
 and that M performed, Sic. 
 breach .ifsigned was, that (J, did on 
 the .'1st of Jann:.ry 17:'J, for' ildy 
 eject M from the mill and premises, 
 him out. That G did 
 not pro\ idc a fr.imed or hewed ! 
 dwelling-house at the mill, for M to 
 reside in. That (J, on the day and 
 id, Ht'ler the mill was 
 complete and put into complet* 
 lion, did prevent M from receiving 
 one half i.t the m-t profits of the mill, 
 but that (i did, contrary to tlu consent 
 of M, receive the whole of the profits 
 from the clay and year last aforesaid, 
 until the bringing of this action, and 
 hath refused to pay any part thereof 
 to M. Nor did Q furjndi M with 12 
 acres of land, including two acres of 
 bottom land most convenient to M, 
 under good and sufficient fence, for 
 Jtl's use. The witness to the agree- 
 ment was offered by (' to prove what 
 took place between the parties pre- 
 \ious to and at the time of the agree- 
 ment, as to their intention and mean- 
 ing in the agreement; also another 
 ..ho proved that when he 
 i work upon the dam for the 
 mill, lie received O;I!<T> fn.m G to 
 build the dwelling-house for M, but 
 that M told him to continue to work 
 at the dam, and not mind the house, 
 as he could jitaki- siiift with the count- 
 ing room in the mill, which he occu- 
 EK-I'I, and declared that it aiisv 
 is p. '. and that there 
 
 was no occasion to build the dw>-ll:n ; , r - 
 in. til it S'I'.KU the convei. ; 
 
 cf ti. y/'W, tint the construction of 
 the agreement is a matter of law to 
 be determined by the court. That 
 parol evidence m:y be admitted to 
 explain doubtful parts but no e.vi- 
 d to prove the 
 i.r to provo ;.ny 
 nt i.ot inrhi'lu-1 in 
 . in the agreement. 
 
 That the evidence offered did not 
 dis-. -inguish the ce: 
 
 or bar the plaintitl \ ii.usc, or right of 
 action against the druiitiani, for the 
 
 h in not building the !. 
 that it \v*s only a consent to a tc-ni- 
 pora- *>n o! the building of 
 
 tin dw-lling-housc, and is ci;K prt,- 
 per in mitigation of damages. 
 riion r li(it/"iri/, 
 
 2. JitM also, that at the time of 
 
 bringing the ae.tion, tl-e pl.iintit! had 
 
 of action, being dc|>ri\c'il of 
 the In. in iils und(.rthe contract. 
 
 /b. 4f>6 
 
 3. 7/c/rf nlso, that the covenant, 
 on the part of the defendant, that the 
 plaintiff should receive one half of 
 the profits of the mill, is an indcpt-n- 
 dent covenant^ and that it was not in- 
 cumbent un the plaintiff, to entitle 
 himself to a ncovery, to prove a 
 conii'liau-e \\ith, or fuliilmuit of, 
 cverv stipulation in (he covenant on 
 his p.irt to be performed. Ib. 467 
 
 4. //'/./ also, thv it was not iieces- 
 
 iitill', in order to sup- 
 port his arti"ii, to prove that he took 
 up his residence at the mill, at 
 perintendi'd the nme as miller, anil 
 (It vnted his time and attention to the 
 mill in such manner as ii usual for 
 men under v. ages to do particular 
 work; that he kept n regn'^r set of 
 hooks, in which vore contained all 
 the 1 transactions of the copartnership, 
 and that he efl'ected a settlement of 
 the partnership accounts at the end 
 of the year 1798, or that he was pre- 
 vented from doing so by the defen- 
 dant. That it was only necessary for 
 the plaintiff to prove U.M he did en- 
 ter upon the management and super- 
 intendence of the mill, according to 
 the covenant, and did work and ma- 
 nage the s:noe. Ib. 
 
 5. ///A/a!.;o, that for withholding 
 
 from the plaintiff' the one half of the 
 profits of the mill, he could only rtco- 
 \rrthi-n-for, from the time whin such 
 withholding of the profits firM ii.in- 
 menced, down to the time when the 
 action was brought. Ib. -J68 
 
 6. ill,] also, that the plaintiff 
 
 might recover damage >- for cue hali'of 
 the net profits of the mill clown to the 
 time of bring':!!.; tin- action, on!. : 
 dam.. 'ini; aril turning 
 
 him "f tin- mill, 
 
 and for all advantages and benefit! 
 which might attend or result from the 
 
 . thereof, during the line*- 
 pircd term of ten years,
 
 INDEX. 
 
 licmtcct withiit the net profits of the 
 mill; and that ail action or actions may 
 be brought by the plaintiff against 
 the defendant for one half of the net 
 profits which might have been made, 
 or may be made, from working- the 
 mill under the contract, from the llth 
 of February 1799, during the continu- 
 ance of the partnership under the 
 same . Ib. 
 
 7. Held also, that this being 1 an ac- 
 
 tion founded on contract, the plaintiff 
 had only a right to recover damages 
 for the actual loss, injury and incon- 
 venience, by him sustained by occasion 
 of the breaches of covenant assigned 
 by him, (exclusive of his part of the 
 profits of the mill,) according 1 to the 
 whole of the circumstances existing 
 in the case, without reference to the 
 force, if any, with which the plaintiff 
 was dispossessed. lu. 469 
 
 8. Held also, that it was no ground 
 
 to arrest the judgment upon the ver- 
 dict, (which was for the plaintiff,) 
 because the declaration stated as a 
 breach on the part of the defendant, 
 the not enclosing the twelve acres of 
 land, &c. Ib. 
 
 CREDIBILITY. 
 
 1. The letters of a witness permitted 
 to be read in evidence to impeach his 
 credit as to what he had sworn upon 
 his examination taken under a com- 
 mission, contradictory to the contents 
 of the letters) but not to prove any 
 other fact. Be Sobry v DC Laistrt, 
 
 219, 220 
 
 CREDIT. 
 See Attachment 3. 
 
 CREDITOR. 
 
 J. Any creditor may sue an executor 
 pro furma, provided he shows himself 
 to be a creditor under the hiws of the 
 country where the contract was made; 
 and as long as assets remain in the 
 hands of such executor, he is answer- 
 able to the creditors. De Solry v 
 Terrier, 224 
 
 2. Whatever fund in this state is an- 
 swerable for debts, is answerable to 
 all creditors alike, according to the 
 laws of the state. Ib. 
 
 3. Unless the jury are satisfied, accord- 
 ing 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 re- 
 nouncing, then the plaintifl', (who is 
 coheir and creditor,) is entitled to re- 
 
 cover whatever the jury may fnui 
 due on the contract made in Prqaec, 
 according to the laws of France. Ib. 
 
 228 
 Sec Request 1. 
 
 Cestui Que Use 2. 
 
 Foreigners 1. 
 
 French Laws 1, 2. 
 
 Preference 1, 2, 3. 
 
 CRIMINAL PROSECUTION. 
 
 1. A J'aro table set up in a house, not 
 a. dwelling-house, out house, or place 
 occupied by a tavern keeper, retailer^ 
 &c. is not an offence under the act of 
 1797, ck. : 0, which directs that "no 
 
 faro table" &c. "shall be set np, kept 
 or maintained, in any dwelling-house, 
 out house, or place occupied by any 
 tavern keeper, retailer," &c. Hakir 
 v The ISlulc, .i 
 
 2. \Vliether or not the court can refuse 
 to permit tiie counsel in a criminal 
 case from arguing to the jury against 
 the court's construction of an act of 
 assembly, after the court had been 
 called upon to give a construction to 
 the act? Quci'e. ibid. 
 
 3. An indictment containing two counts, 
 one charging felony, and the other a 
 misdemeanor, was held to be good* 
 Burk v The State, 426 
 
 4. After the prisoner has pleaded ge- 
 nerally to an indictment haying two 
 counts, the jury may be sworn ami 
 charged upon one of the counts only, 
 to the exclusion of the other, Ib* 
 
 5. V/hen nine jurors are sworn in a 
 criminal case, and the rest of the 
 original pannel is exhausted by pe- 
 remptory challenges, the court can 
 legally award an order for the sum- 
 moning only three talesmen, and 
 when eleven are sworn, to summon 
 but one. Ib. 
 
 6. As to the manner of awarding a 
 venire for summoning talesmen, in 
 criminal cases, capital. Ib. 
 
 7. As to the joinder of offences in cri- 
 minal cases, and the joinder of causes 
 of actions in civil cases. Ib. 
 
 See Indictment. 
 
 CROP. 
 
 See Overseer 1. 
 
 CURRENT MONEY. 
 
 See Court of Chancery ,S. 
 Mortgage 1, -.
 
 1X1. 
 
 D. 
 
 M \c.r.$. 
 
 1. In an action <M" replevin the jury may 
 Mich damages as thiv think the 
 plamtilF U jusHy entitled to, 
 rf{ui\u!int for the injury suv 
 
 413 
 
 <Stt CoYenant. 
 On laration 3. 
 
 Dowvr 1, 4. 
 
 Ueplcvin 1. 
 
 DATE. 
 
 &e rroiiii.'sory Not? 
 
 DAY BOOK. 
 S Evidence 8. 
 
 DT.RT. 
 
 $6e Application of Payments 1. 
 
 Hoquest 1. 
 
 Discount 2, 4. 
 
 - ' Extinguishment 1. 
 > KcU. 
 
 DF.HTOR AMI CHKD1TOR. 
 
 ini^iis'jnK-nt 1. 
 Hclcxse 1. 
 
 DBCLARATlQfJr. 
 
 1. A judgment of tin- court below upon 
 
 a jeinTal vcrd'.ct if. u*xit>nj"'f, was 
 
 v there was one count 
 
 in the declaration to which the evi- 
 
 il-iico did not apply. Grant r 
 
 2. A declaration containing 1 sundry 
 
 counts on a letter of credit or tia- 
 
 ran'v, some of whic.i were held to 
 
 be fb. 
 
 \ leclaration in replevin, omitting 
 
 i damage, is fuUl. Fagtl c 
 
 350 
 
 Ket Covenant 8. 
 
 Dower 1. 
 
 Joinder of Actions 1. 
 
 T |{'pli-\in ! 
 
 Slander 1, 1 
 
 DF.f !.ui vmv*. 
 
 of tbc 
 ,!c of 
 
 the slave for which an action (' r--- 
 <\ wa* brought, and bef> 
 
 
 
 of the plaintifl' 
 nay, 
 . \\ '.. P.s-ver to a bill in eh-in- 
 
 . f'-din 
 
 :h the 
 
 an}' winusfiibla in evidence, 
 
 yet the declaratiims of the defrndant 
 arc; and a witmss may rvcur to the 
 n-lit s'i hi-* memory, as to 
 tlie declarations made to him b> tlie 
 defendant 
 
 3. Declaration* made by the defendant 
 before and after his dWimiyv undir 
 an insolvent law, ma\ be given in e\i- 
 dcnee r>;^ , /i. 410, 41J 
 
 ,*5. 
 nee. 
 
 Iff REE. 
 
 1. A bill filed in chuici-ry to stt a-idc 
 and ann'jl a decree obixuiud \>\ hand. 
 
 l''l M'|, , ;i;ui 
 
 $ee Court of Chancery 15. 
 
 - Enro 1 
 
 - - Kvidi-nce 5<J, 78. 
 
 - livvcratl 1. 
 
 DEBDL 
 
 1. P.irol evidence not admitted to nrove 
 tint a deed of in:innmissiin wa-. -t- 
 
 cs '. ,i his 
 
 name thereto. Ntgro JOJHCS v Gui- 
 
 176 
 &c Conveyance. 
 
 - Inspcximus 1. 
 
 DKFF.CTIVF: 
 
 See Acknowledgment of Deeds. 
 
 - Presumption J. 
 
 DEFECTIVE TITLE. 
 
 See Gr.mt 7. 
 
 - Presumption 3. 
 
 DELIVERY. 
 See Evidence 8. 
 
 - Non Esi Kactum 1. 
 
 1. A f*rnera! demurrer to a declaration 
 
 in dower b Tilled, jnd^rm-nt 
 
 was i I for the diMnuudant for 
 
 dower and costa. A 
 
 53 (' 
 
 ': PARTUHK IN I'LLADIXU. 
 -Kdin 1 1. 
 
 ! -Mil-XT COVr.XA.NT. 
 See Covenant 3, 4, 8. 
 
 in- c i>i ri'iv. 
 
 1. The deposition of a witness taken on 
 i dispute, 
 
 permitted to be read in cviden 
 the trial, the viti uut of tl>c 
 
 state, and due dihgenoc luviiii; been
 
 INDEX. 
 
 0)60 
 
 Msec! to procure his attendance. Ihw- 
 
 nrd e Moals et fit. Lcs.ice, 272 
 
 2. The deposition of a witness to be 
 
 taken under the act of July 1779, ch. 
 
 8, to perpetuite testimony. Sec UK- 
 
 SIDENTH 2, ami 
 
 liri/den v Taylor, 396 
 
 See Commission and Commissioners 4, 5. 
 
 DEPUTY CLEKi:. 
 See Clerk I . 
 
 DESCENDANTS. 
 
 See Evidence 56. 
 
 DESCENTS. 
 
 Sec Estate Tail 10. 
 
 Tenant in Common 1. 
 
 DESCRIPTION. 
 
 1. Whether or not lands seized under a 
 furl f/t : -'(ii are sufficiently described 
 in the sheriff's return thereof? See 
 1'fKiu FACIAS 2, and 
 
 M'Kl Jerry v Smith's Lessee, 72 
 
 2. If there are two descriptions of the 
 land granted, the one by name and 
 the other by metes and bounds, the 
 grant will operate to pass the land ac- 
 I'ording to that description which is 
 most beneficial to the grantee. Ifall 
 v GitHngs, Jr'it Lessee, 117 
 
 3. An escheat grant operates to pass the 
 whole of the original tract escheated. Ib 
 
 4. As to a variance between a descripti- 
 on of land contracted to be sold and 
 conveyed, and that used in a grant of 
 the land, see COUKT os CHANCERY 
 3 >, and 
 
 Hammond v Sappini*'.nn, 446 
 
 5. There being no designation of part 
 of a tract of land contracted by a bond 
 of conveyance to be conveyed, nor 
 tiny description whereby it can be 
 identified, parol evidence is not ad- 
 missible to show that it was intended 
 by the parties to be laid off' in a par- 
 ticular manner, and the bond is void 
 for uncertainty, except on the princi- 
 ple of election. Huntt c> Parks v 
 Gist, et al. 498 
 
 &e Evidence 24. 
 
 DESIGNATION. 
 
 1. There being no designation of part 
 of a tract of land contracted by a bond 
 of conveyance to be conveyed, nor 
 any description wrhireby it can be 
 identified, parol evidence is not admis- 
 sible to show that it was intended by 
 the parties to be laid off in a particu- 
 lar manner, and the bond is void for 
 uncertainty, except on the principle 
 VOL. II. 67 
 
 of election. Ifuntl & Parka v Gitt 
 d al. 49S 
 
 1)EVASTAV[T. 
 
 See Executors and Administrators 7. 
 
 DEVISE. 
 
 1. A devise of lands to a creditor does 
 not extinguish tho debt or claim which 
 he has against the testator. Partridge 
 v Partridfr?., 63 
 
 2. The following devise created an es- 
 tate tail in the devisee, viz. "I give 
 and devise to my son R L, all that 
 land called," Sic. "to him and his 
 heirs for ever; and in case he dies 
 without heirs, to my son J L, and the 
 heirs of his body lawfully begotten- . JI 
 Laidter v Young's Lctssee t 69 
 
 3. An estate tail cannot be devised un- 
 der the act of 1782, ch. 23. 16. 
 
 4. A will containing the following 1 de- 
 vise, viz. "I give and bequeath to my 
 sister E W, all my real estate, during 
 her natural life, and after her decease 
 to ITU nephew T W, and his heirs 
 lawfully begotten; but incase my said 
 nephew should die before he arrives 
 to the age of 21, or leaving 1 issue law- 
 fully bcg-ottcn, theft, &.c. T W ar- 
 rived to the age of 21 years, and died 
 without issue Held, that the estate 
 tail was docked by the deed fronv T/ 
 W to W B, although W I! was de- 
 clared to hold the land in trust for T 
 W, and those claiming under him. 
 Broifdtn v IValkrr's Ex'r. &fc. ^85 
 
 5. T T by his will dated in 1795, devised 
 his lands to be equally divided between 
 his two nephews WC and \V S, to 
 them and their heirs for ever; and hi 
 case W C died without lawfuT issue, 
 then devise-done Iraft'of the said lands 
 to his nephew G S, to him and his 
 heirs for ever. Held, as- 1# a moiety 
 of the lands devised to W C, flrat on 
 his death without lawful issue, the es- 
 tate tail became extinct, and the limi- 
 tation over to (i S took effect, and one 
 moiety of the lands vested in him in fee 
 simple. Sm:'tk ef til. v Smith et al. 314 
 
 6. K II by his will devised as follows, 
 viz. "I give and bequeath unto my 
 dearly beloved son C H, the free use 
 of my land called," &.c. "with all the 
 houses," &c. "during his natural life, 
 to occupy and enjoy the same; and 
 after the decease of my son C H, I 
 give and bequeath the said land," &c. 
 "with all the houses," &c. "unto the 
 heirs of my son C H, lawfully be- 
 gotten of his body for ever; and for 
 want of such heirs, I give," &c. 
 Held, by the county court, that
 
 B30 
 
 I??DKX. 
 
 under this devisf , C II took an estate 
 mta Krys iJ Horn v Golds- 
 
 borough's Lotetf 371 
 
 See Executory Devise. 
 
 DILIGENCE. 
 See Deposition 1. 
 Evider.cc 48. 
 
 DISAFFIRM 
 See Acts 1, 2. 
 
 DISCHARGE. 
 See Insolvent Debtor 1, '.'. 
 
 DISCOUNT. 
 
 1. Thr defendant may set off, asrVmst 
 the plaintiff's demand, a' note of the 
 plaintiff's accrued subsequent to the 
 commencement of the action. Clurkr 
 v Magnifier et aL 77 
 
 2. A debt or demand may be set ofT, or 
 pleaded in discount,- altliough such 
 debt or dcmund was not subsisting at 
 tlie time the action was brought. Ib. 
 
 3. In an action of trover for corn plac- 
 t-.l iii the warehouse Of die defen- 
 dants on storage,' and which t!. 
 fused to deliver, but claimed to-ret.Mii 
 it for the payment of a debt due to 
 them from the pl.iiiUitF, for articles 
 .sold and delivered IfrlJ, tlr.it us 
 there was no evidence that the corn 
 was delivered to the defendants to 
 be applied by them to the dis- 
 charge of the debt duo by the plain- 
 tiff to them, or was placed in their 
 hand* as factors, with authority to 
 sell the same, the plaintiff was en- 
 titled to recover. Levering v Bond's 
 Mm'r. 300 
 
 4. The defendant, as surety for F R in 
 a bond for the payment of inon.-y 
 jfivcn to the plaintiff as trustee for 
 the sale of an estate, having pleaded 
 payment, at trial ofl'cruj to file an ac- 
 count in bar, claiming in the name of 
 T B a sum of money due to him as 
 his proportion of the amount of the 
 sales of the .-state ///</, that the ac- 
 count could not be filed. Irantt o 
 Rou'ie's .-Mnr'r. ^. 371 
 
 See Court of Chancery 1 5. 
 Evidence 59. 
 
 DISTRIBUTEE 8c DISTRIBUTION. 
 1. Any creditor may sue an executor 
 pn> formti, provided he shows him- 
 self to be a creditor under the laws 
 of th<; country where the contract 
 v.1* in i lc, n-.\t\ a* long as assets re- 
 ouiu in the hand* of such executor 
 
 he is answerable tr tUe creditors; aini 
 if there is any surplus it is ti> ^o into 
 the mass of the MICCCVMOH, to lie dis- 
 tributed according to the laws of the 
 country win-re the trstator was domi- 
 nie. I. ' /)( .V-..';r,y ; 7' 
 
 2. Personal property adheres to the 
 person; ami wherever the testator irt 
 doimcil at the tune of his death, the 
 property is to lie distributed accor- 
 ding to the laws of that countr . 
 
 3. No part of the personal estate of a tt-s- 
 tator, dying in France, U subject to dis- 
 tribution among his coheirs, but th-s 
 surplus or residuum remaining after 
 
 the payment of all his de'j 
 legaci.-s. ^6. 22 
 
 Sec Evidence 3. 
 
 DOMICIL. 
 See Contract 9. 
 
 - Distribution 1, 'J. 
 Foreign Laws 4. 
 
 - Ftv.K'ii I .i-v- 1, . 
 
 I, 2 
 
 - Testator 1, 2. 
 
 DOHMAN i- i>\:n 
 
 Sec Partner and Partnership L. 
 
 DORMANT TITLE. 
 See Possession 5. 
 
 DOWBR 
 
 1. In an action of dower it is rmt rte- 
 cessary to lay any damaces in tiic de- 
 
 claration. j\i ': . !^, 53 
 
 2. Parol evidence admitted to prove 
 that the laud granted to the hu 
 
 of the demandant is the same land of 
 which dower is demanded. /'/. 
 
 3. A demurrer to a declaration in dow- 
 er being overruled, judgment was 
 entered for dower and costs. 
 
 Jb. rnntr ) 
 
 4. In an action of dower a ju<l. 
 w-is confi-sM-d' for the deuui.- 
 dower claimed in the lands. A writ 
 of h'ibcrc jitcian uriyiintm issued, anil 
 tle dvmambnt's dower laid off. On 
 the return of the writ, the county 
 court i-ntep-d judgment for nominal 
 d-tmages. and cosN. On appeal, the 
 judgment for the damages aivl <-tKt< 
 was reversed. Hammond i 11 
 etux. 
 
 DRrVKr.VVF.SS. 
 See Court of Chancery 35. 
 
 niLHiF.NCE. 
 See Deposition 1. 
 Evidence 48.
 
 INDEX. 
 
 531 
 
 E. 
 
 EJECTMENT. 
 
 1. An equitable title in the defendant 
 to lands, will not prevent a recovery 
 against him in an action cf ejectment 
 brought by a person liavir.g 1 the legal 
 title. Sounders, et ux. v &imp\wi, t 1 ux. 
 
 . 
 
 2. VVJiether or not twenty ye:irs exclu- 
 sive and unmixed possession of a tract 
 />f land by cultivation and general use ? 
 without an actual enclosure, is such .a 
 .possession as will bar a recovery in 
 an action of ejectment? Qucre. Cheney 
 v Kinggold, et al. Lessee, t>7 
 
 3. Whether or not twenty years posses- 
 sion of a part of a tract of land by 
 actual cultivation and .enclosure, with 
 nn exclusive and unfixed enjoyment 
 of all exterior to the enclosure, by 
 sparsim cutting and general user, will 
 bar a recover}- in ejectment, of the 
 parts not enclosed? Qucre. Jb. 
 
 4. Where the plaintiff with title, hav- 
 ing possession by enclosure and cultU 
 vation of a part of a tract of land, 
 claiming the ' whole, and the defen- 
 dant, withou| title, having possession 
 by enclosure of a" part \of the same 
 tract, with the vise (by cutting tim- 
 ber, Stc.) of the ether parts not in- 
 ^closed, the plaintiff ia- bound by the 
 act of limitations as to that part of the 
 Jnnd which is in the possession of the 
 defendant by actual enclosure for more 
 than twenty years next preceding 
 the bringing his ejectment, but not as 
 to the parts used by the defendant ex- 
 terior to the enclosure. Ib. 
 
 5. VVhen t\yo ire in mixed fxosscssio.n 
 of the same land, one by title, a^d 
 the other by wrong, the law considers 
 him having- the title, as in possession 
 to the extent of his right. fl>. 
 
 6. 'I he act of limitations did not attach 
 or run against the Lord 1'rop.rietary 
 on any possession of vacant lands, Ib. 
 
 7. If the testimony of a witness interested 
 is intended to be objected to because 
 of his holding adjoining 1 land, his in- 
 terest must be located on the plots. 
 Hall r Gitt'nigs jr's. Lessee, 120 
 
 $. The declarations of a former holder 
 of adjoining lands, as to the bounds 
 of the land in dispute, admitted in 
 evidence, it not appearing by the plqts 
 that he was interested in establishing 
 the facts related by him . Ib. 121 
 
 9, I nan action of ejectment the plain- 
 tiff must recover on the strength of 
 his own tide. Jb. 122 
 
 IP, The defendant in ejectment may 
 
 prevent the plaintiff from recovering 1 , 
 by showing a .title in himself, or a clefir 
 subsisting title in a stranger. Ib, 
 
 11. A clear subsisting title outstanding 
 in another, means such a title as A. 
 stranger could recover on in ejectment 
 against either of the contending par- 
 ties*. Ib. 
 
 12. Possession is presumptive evidence 
 of right, and a defendant in eject- 
 ment cannot be deprived of his pos- 
 session by any person but the right- 
 ful owner of tlve land that is, he who 
 hath the JIK possessionis. Ib. 
 
 13. ;>othing but twenty years adverse 
 possession can defeat a title acquired 
 under a legal grant. lb 
 
 14. I he jury were directed, that if they 
 believed certain facts, then the pre- 
 sumption of Jaw was, that / S, to 
 whom the land in dispute was grantrd 
 in 164, was seized thereof, at the 
 iime of his will in 1683, and his death, 
 in ! 685, and no presumption could 
 arise from the said facts, that he waa 
 not so seized. Jb. 126 
 
 15. VV'here the plaintiff has made but 
 one location on the plots, of the be- 
 ginning of the tract of land for which 
 the ejectment is brought, and that is 
 counterlocated, the jury cannot, by 
 reversing lines, &c. ascertain by their 
 verdict a different beginning for the 
 plaintiff than that located by him. 
 Hammond, d al. Lessee r Nvrris, 148 
 
 J6. The plaintiff in ejectment must 
 
 'make such locations of the land on 
 
 the plots as will suit his case. Jb. 
 
 \7 . I he jury cannot find a loca- 
 tion of their 6wn, but if they find for 
 the plaintiff, they must find some one 
 of his locations on the plots. Ib. 
 
 18. If the beginning of a tract of lantj 
 is lost or cannot be proved, then the 
 beginning is to be found by reversing 
 }he lines of the tract from the first 
 known and established boundary. 
 Ib. 149 
 
 1'9. A person out of possession for more 
 than twenty years, where there is not 
 an adversary possession in virtue of 
 some right or by actual enclosures, 
 his heir, or a person claiming under 
 him, may bring an ejectment without 
 actual entry into the land. Hammond, 
 et al. Lessee v Warfield, 156 
 
 20. A naked possession, (possession 
 without right,) is only adversary to 
 the extent of actual enclosures. Ib. 
 
 21. To entitle the party to the benefit 
 of the relation of his patent to the 
 certificate of survey, it is incumbent 
 on Lun to show an equity ; and t^
 
 B38 
 
 INI 
 
 producing copier under seal, of the 
 warrant, ceitilicatc and grant, 
 suthcient to entitle him to such bene- 
 fit. ///. .58 
 I he timr wh< n a certificate t>f sur- 
 was returned to the land o'hcc is 
 * matter of fact dctcnninable by tlie 
 Ib. 159 
 
 crtain facts and circumstan. 
 admissible in evidence to prove at 
 what time a certificate of sui\c\ \\.s 
 returned tn the lund office. Jb. 
 
 24. 'l*he actings ami doings of a person 
 under whom tin- parts do. s not claim, 
 not permitted to be given in evidence. 
 
 Hi. 
 
 25- A mortgagor cannot support an 
 ejectment h.r the land mortgaged, 
 unices lie can show thntthi- mi' 
 
 had been satisfied rrevious to tlie time 
 of bringing the ejectment. Btall, rf 
 al. Ltsfcc v //aru.'ood t 172 
 
 26- In an action of ejectment brought 
 by the h-s-.ee of the I't.-tn/nf "" l } <i>.>./>, 
 the plaintiff offered to read in evi- 
 dence certain entries in a book pur- 
 porting to be, and proved by a wit- 
 
 . who was formerly register of the 
 Vestry, to be handed down to him as 
 the vcstiy hook of the parish J/'h', 
 that the testimony was improper, and 
 ought not to be read in evidence. 
 J/u.v/w if Strath v Gunbij, c.t ul. Lesstf, 
 
 248 
 
 27. The death of one nf the lessors of the 
 plaintiff in an action of ejectment, 
 may be suggested after the jury arc 
 sworn, and his heir, &c. need not ap- 
 
 -, or l>f m:ide a party. Howard, o 
 M<tk, ct ul. Lf.'xfe, 249 
 
 28. Where the first and second coui-ses 
 of an original grant of a tract of bud 
 called Jt f, are described as "begin- 
 ning at a bounded locust tree, bring 
 
 N K bounded tree of D P's land, 
 d U (J] and running by the l.vid 
 of th<; said P, i - 
 
 oak, then N I-'. I "<> ps to a bounded 
 red oak of thr s-^id /"^land;" and the 
 first aiul second courses of an c 
 ^rant of the >unc bud called D /', is 
 
 ''cginniiv .it a I 
 
 now biiiindcd M or very near to tho 
 place where stood a bounded ! 
 the origins! beginning tree of i) F, 
 and a bounded t.-ve of a tract of land 
 called I' (', f>rmerly laid out for I) P, 
 nd running trtence with the said L-md, 
 t<>5 pg (it being < .1 tlia 
 
 of the originaK survey to 
 run by the land of th.- sid P, K 6-i 
 pit to a bounded red oak, which can- 
 UOf bcfound,) thcucc N t -JJ8 ps sUll 
 
 bounding on thr said land, to the N 
 
 XV liniiirh of l'i:'' f \*rn i:\er, 
 ing then in rx^revs, .1 to run > i 
 
 a hounded red oak of the said 
 J"i lain), and the certificate of the 
 .aid /"v lund mentioning to mn Hut 
 course to a hinimli ii i\-d i 
 by ihe >i(K ot 
 
 \vliirh oak is n/t know n") lltM, that 
 there was no doubt or an: 
 th*t if the beginning of U /'is rightly 
 located on the plots in t' 
 the termitution ol the twelfth hn< of 
 /" (', and there is no evidence of the 
 existence of *ny tree, as culler, 
 the termination of the first Kt.e of I) 
 }\ then the e\j>r-s,inis ill the i 
 gran*, do bind that grant to the tn e 
 location of the original '.r.ict culh-d I) 
 F, as to the tw<> thereof, so 
 
 fnr as the second line of the o 
 did actually extend; and that t 
 and second lines of tlie original tract 
 do, by virtue of the express. ons tin n-. 
 in used, bind i'.. ..n the thir- 
 
 teenth and fourteenth liiKb ! I ' '. '. 
 
 23. V^'hcrc the plaintiff has not i 
 
 his escheat grant on the plols in the 
 cause co-extensive with the location 
 of the original tract, he cunno* 
 evidence to extend his prete: 
 beyond tlie lines and limits he has 
 given to the escheat grant; but he is 
 estopped by that location from going 
 be\ond the'letttr /', located on liio 
 plots, from whence he must nn to 
 the head of //<*'/' branch, at wtiat- 
 t-ver poifit the same ma\ b> 
 to his location of his pj-fteii.^io-. 
 the location by which the defendant 
 has taken d. fence . ///. ^(56 
 
 30. The plaintiff cannot give any evi- 
 dence of the lines of 'his esdie.-i! 
 ninning otherwise th:i' he h:..s located 
 them on the plots as his pretensions- 
 but he is irot precluded from giving 
 evidence of any other lin<-s, us tho 
 lines of the ori.i-urd tr-ict, by u 
 illu-.tmtion; and he Hiuy support the 
 :)ivt!-|iio:is, <o fin- gs 
 ;in show tbiit tlie\ are 1, 
 within the limits of the original tract, 
 Hi 
 
 31- 'I he court refused to Hirect the jury 
 
 that an i^chi :it grant did not p.i 
 
 land inrluded in the origin d j-rmr', 
 except the sarru ...h-d witliin 
 
 the metes and -bounds ot the M-hcat 
 grant, as pariicnlavly denrri!>.-l : ..n.f 
 that the escheat grnt did not b\ 
 operation convey all the land includ- 
 ed witfajn the original grant,
 
 INDEX. 
 
 033 
 
 * the particular metes and bounds of 
 the escheat grant did also include 
 lli<-m. Ib.in 
 
 32. The court directed the jury, that 
 tlu'v may find the true location of the 
 tract, of land called 1) F, for which the 
 ejectment was brought, by a greater 
 or less variation of the compass as may 
 appear to them proper from the evi- 
 dence, provided that by such allow- 
 ance of variation they do not enlarge 
 or extend the plaintiff's pretensions 
 beyond the location of his pretensions 
 on the plots, or beyond a straight line 
 to be drawn from the letter V to the 
 head of HMVUH/'* Crunch,' Ib. <!74 
 
 33. 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 on the plots, to the 
 head of Howard's IVranch, (he having 
 located that line of his grant in that 
 manner,) altho' 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 plain- 
 tiff's pretensions, as located on the 
 plots. 7^275 
 
 ,")4. 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 contain- 
 ed in his pretension* within the true 
 location, the defendant is also estop- 
 ped from saying that the true location 
 is different from that given by the 
 plaintiff. J(j. 
 
 55- The jury, by their verdict in an ac- 
 tion of ejectment, ' hiving* found tlie 
 true location of the haul, for which 
 the ejectment was brought, to be from, 
 the letter .# to a, to 3, to four pcrclifs 
 leluw big /', the head of Howard' $ 
 Branch, ami then to Jl : they also 
 found for the plaintiff* his preten- 
 sions, (not being to the extent 
 of the said location, "* to be from A t0 
 C, to f, to/our prrc'teii Islmv big /', the! 
 head of Howard's Hranch, and then to 
 Jl, 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 com- 
 plained of in the residue of the land. 
 lli-ld t that there was uncertainty in 
 the verdict. //;." 276 
 
 3(5. A private plot of the lands in dis- 
 pute, permitted, under certain cir- 
 cumstances, to bt; read iu evidence, 
 
 37. A deposition taken on the survey, 
 of a \\ itliess, 'who \vas absent out of 
 the state at the time of the trial, was 
 permitted to he read in tvidenct-, due 
 diligence having both used to obtain 
 the attendance of the witness. Jfi. ^72 
 
 38. "Where the facts offered in cvjder.ce 
 by the pla'.lititt were not sufficient and 
 legal e\idence to warrant the jury in 
 finding that a pel-son under Whom the 
 plaintiff claimed died sci/.cd of the 
 land for which the ejectment was 
 brought, in opposition to 6U years 
 possession of the defendant the 
 strongest presumption of a good titie 
 being in favour of the defendant. Da- 
 t'/4 f * /rfsfec v Jjai'is's Ilrirs, 
 
 40. A 1' by his will devised to C C & A 
 M all his real estate to be sold by them 
 for the payment of his debts. Evi- 
 dence of a sale made at auction by 
 them to W G of a part of the real es- 
 tate, together 'with u inenioraiiduni of 
 the sale subscribed by the auctioneer, 
 apd a receipt given by them for the 
 purchase money Hi Id, to be admis- 
 sible and competent to show a title a* 
 law in W G, without a deed of bargain 
 nnd s'ale, or other conveyance to him 
 from the trustees, and to be sufh'cieiit 
 to enable his lessee to recover the 
 lands in an action of ejectment. Keys 
 EJ? Horn v QoUitofOUglfB Lessee, 36S 
 
 41. \\ here a deed for part of a tract of 
 land has not been particularly located 
 on the plots in the' cause, it may be 
 road in evidence if the whole tract i 
 united in the same person, and tha 
 whole has been located. Hull c Gil* 
 
 lings' xLe&vc?, " 382 
 
 42. If the possession of land has gone 
 agreeably to an ancient deed which, 
 Heeded no enrolment, the inspexiinut 
 <>f the deed may be read in evidence, 
 and is effectual to pass' the land, 
 
 Jb.330 
 
 43. f^ffme cpvcrf, one of the grantors in 
 a deed conveying a tract of land, tliti 
 acknowledgment of which by 1u-r, 
 having been declared to be defective, 
 was admitted to give evidence oh tlm 
 part of the defendant in an action 'ot 
 ejectment brought for the same land 
 by a person claiming- under her deed, 
 
 Ib. 3tf6, CnoleJ 
 
 44. Where the defendant in an action 
 of ejectment was in possession of 
 ^OO acres of land by enclosures and 
 cultivation for \5 years, and then en- 
 larged his enclosures, sous to include 
 150 acres, and he possessed liu srnie, 
 so t-ii!;.: ;;<:<[ by enclosures, for 6 years 
 ti -".. . : .'.:$ Uii a.,:iic fc's his
 
 INDIA 
 
 \vn Held, thut he hail title to the 
 100 acres by u sscsMon. 
 
 Ib. 390 
 
 ;5. Where the expressions used in -x 
 jrrant of i.m.l described it as 
 i>n the ndtfc of (iunpowder river, 
 hepinning at a bounded o:.k, bcinj; 
 the UT-itirnmost bounds of a tract <f 
 Jan. I laid out tor M S, xi>d rnnninjf \\ 
 500 ps. to a bounce. i 
 tlit gr:ut /.//*, and running .N from 
 .the s*id oak," 5tc. flclct, th:t th-.-y 
 clo not operate to hind the first line, tc 
 terminate at the great falls, although 
 no evidence is given of ijic tree or 
 plar.e where it stood. /. 392 
 
 46- The declarations of a <1 
 
 person, then sei/.ed of a particular 
 
 of land, not located on the plots 
 
 in tin- cause, were offered in e \idej.re 
 
 by the defendant in an action of 
 
 ejectment, In prove the end of the 
 
 first line of that tract, which was the 
 
 :ni.n "f the land claimed and 
 
 located on the plots by the defendant. 
 
 ', tint the declarations \verc not 
 
 dMMtble jivevjden /6. 393 
 
 an action of ejectment for oO 
 
 - of arable land, 10 acres c; 
 
 <low, and JiM acn-s of voodland, 
 
 }>art of .1 tract of land called 11 ]', 
 
 <hc jurj- by their verdict found .the 
 
 true location of that trnct, ard also 
 
 the locations of other tracts for whicii 
 
 <he dtfeiu'.ant took 'I hey 
 
 . found for the p!:iintiH' all ihe 
 
 jand called // / d by them, 
 
 v.hich lies cJc-.i" of the other iract.s so 
 
 .located by them, and which lies to 
 
 eastward of a division line be- 
 
 t ween the plaintiff's lessor and J Sj 
 
 Jro.ni a pavticuku- |)oint to another. 
 
 J/fh/, that the verdict, and the jndff- 
 
 jiient tlu-reon r-.-n.lere:!, were i. 
 
 .in, and w- 
 
 <han the pluintirf chdined in 1. 
 tion . 
 
 48. A surveyor's ori"inal liook of stir- 
 . and his j):trol ^eatunony, ad- 
 mitted by the general court, in an -ic- 
 t evi- 
 <lence to j)if>\e tha' ,te of 
 
 ,-y r- turned f> the l.tiul 
 vas iorgtd. JJ'^iin^'t j. 
 
 4Jj 
 \ rand -1, a, <~'. 
 
 Lwation of Lands. 
 
 . Presumption -, 
 Verdict 6 7. 
 
 KLKCTTOH, 
 
 J. T! - 
 
 '.'ii< I, contracted by 
 
 hond of conveyance to be 
 nor any description \ 
 
 lentifird, p:Ti'l t\i !i-)n'i- is not 
 
 admissible to show that il \vus intrmi- 
 ; tlie parties to be laid ( ' 
 
 p:!-iicnlar manner; and the boiul is 
 i'or mice:- n Ue 
 
 prineiple of ejection. 
 
 -;<_ Jjf Action J. 
 -- C'urt of Chancery 45. 
 
 - PracUce 2. 
 
 i \' i os\ 
 See Ejectm> 
 
 - i.iinitation of A<:lions 2, 7, 8, II. 
 
 - 1'o-M-vsior ;?, 4, 8. 
 
 Tixsuass 5. 
 
 J.XUOLMF.NT. 
 Zee Bill of Sale 1. 
 
 - Conveyance 4, 5. 
 
 Court of Chancery 9, 10, 11, J8. 
 
 - Kst:te "J'ail 8. 
 
 - Evidence 10, 5G, 61. 
 
 - lii<.|>fximiis 1. 
 
 - J. ea.se ;uul Ke lease. 
 
 } NTR1ES. 
 
 ,J, 46, 56. 
 --- Presumption 2. 
 
 F.NTRY. 
 
 1. A persoji out of possession fpr^nore 
 than twenty j cars, where there i* 
 not .in adversary possession in virtue 
 of rijjht or by actual enclosures, bis 
 l.eir, or person cl.iiming under linn, 
 may bring 1 an ejectment without :;n 
 actual entry iito the luiul. Jfi.> . 
 (I itl. 7^'<" r. /I-.-,. '.'(.',/, 
 
 See Confiscation 2, 4, - 
 
 Kscheut 7. 
 
 - Oflice Found 1. 
 
 KXURE. 
 
 Vendor and Vendee 1 . 
 
 ITAIU.F. ASSIGNMENT. 
 ourt of Chancery 5. 
 
 1 Cll T UBLK i:STATB. 
 
 1. Where a person, having the equita- 
 bh- intrrest, is ill possession of t in- 
 land, yet if his equitable in'e: 
 
 fiot known, it will not pn v.-.ii, it es- 
 UlMished, over the k COm- 
 
 iii- ' ,uent to the equitable 
 
 interest. Jt'irnn. ,>n v A'/,.'.,.. 
 
 2. A contract for th<- purchase of land, 
 boiin JiHr made for eon- 
 
 , > cat* lUe ccjmtabk inlcrgst
 
 1NBTES. 
 
 033 
 
 Jrt the vendee from the time of t!*c 
 execution of the contract, ultliotigh 
 the money is not paid at that time. 
 When the money i.s paid, the vendee 
 .is entitled to a conveyance. A judg- 
 ment obtained l>y a third person a- 
 gainst the vendor, mcsne the making 
 the contract and the p:\ inent of tbe 
 money, cannot defeat the equitable 
 interest thus acquired, nor is it a lien 
 on the land toatl'cct the right of snclv 
 k&ttyi jjttt trust. Hompzon v Edekii) 64 
 
 3. An equitable estate in tlie defendant 
 to lands, will not prevent a recovery 
 against him in :in action of ejectment 
 brought by a person having the legul 
 title. Saunders, et uj; . v S-imjjwn, el ux. 
 
 is- 1 , fnolej 
 
 4. By the acts of cwifis.c'ation, the equi- 
 table interests of British subjects in 
 lands in this state, were confiscated 
 without office f'Hind, or entry,, or other 
 act done* and although sucb equitable 
 interests were not discovered until 
 long 1 after the treaty of peace be- 
 tween Great-Britain and the United 
 States. Smith, et ul. v Tht State, 471 
 
 See Kjectment 25 T 40. 
 
 - Kieri Facias -I, 5, 6. 
 . - (irant'2^, 26. 
 
 - Judgment S. 
 
 - - Proprietary 4., 
 
 - Trust &. Trustee 2 r 3. 
 
 - Vendor &, Vendee '. 
 
 EQUITY. 
 
 See Court of Chancery. 
 
 EQUITY OF REDEMPTION, 
 
 1. Where an absolute deed of convey- 
 ance of la-ncl and personal property 
 was held to be intended to secure the 
 payment of a debt, and the part y per- 
 mitted to redeem, Stc. See COURT OF 
 ("iiiKuEHY 20, and 
 Brogdcn v Walker's Ex'r. &c. 235 
 
 See Court of Chancery 3 f %Q. 
 
 Mortgage 2, 3, 5, 6. 
 
 See Writ 
 
 KRKOK, 
 
 Error. 
 
 ESCHEAT. 
 
 1. If the heirs of J S, itv whom was 
 the title to a tract of land, were to- 
 ying in (rrcat Britain at the passage 
 of the acts of confiscation, then :m 
 escheat warrant issued to E N for the 
 same 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 sect, of the act of Nor. 1781, eft, 
 20. Owings v Norwood's Lestee, 96 
 
 2. Such grant is valid to pass the 
 
 land tr> E N, notwithstanding; he bud 
 not paid more than two thirds of the 
 appraised value of the land. Jt>, 
 
 3. l.ands liable to- confiscation, may be; 
 granted by tha state, under an es- 
 eheat warrant. lb. 
 
 4. Such escheat grant will ope- 
 rate by relation so as to give title 
 from tue date of the wan-ant of es- 
 cheat, lb. 
 
 5. The 8'th sect, of the act of 
 
 JVotf. 17S1, eft. 2", secured the land 
 so escheated to the party, on his pay- 
 ing two thirds of the value. lb. 
 
 6. Where the court would not direct 
 the j-ury that the pluintilF's cschc.it> 
 grunt did not pass the land, the de- 
 fendant claiming the same under a 
 defective title. lb. 
 
 7. Lands escheated to the state vests 
 without office found or an actual en- 
 try. Hall v (jitlings Jun'rs JLf3fftc r 
 
 112 
 
 8. The act of confiscation vested the 
 seizin and possession of all lands 
 liable to confiscation in the commis- 
 sioners, on behalf of the state, and 
 divested the possession of all other 
 persons. lb, 
 
 9. If lands, liable to escheat, arc; 
 included in a certificate of survey 
 and grant under an escheat warrant 
 on another tract of land, such gran*: 
 will operate to convey a good title to 
 the land so included, if there has 
 been possession for more than twenty 
 years, &c. lb. 115 
 
 10. Land not liable to escheat at tins 
 time it was included in a grant on a 
 survey made in virtue of an escheat 
 warrant on another tract of land, but 
 which afterwards became escheat, 
 will not pass under such grant, and 
 the state is i>t estopped from grant- 
 ing it to any other person. lb. 
 
 11. An escheat grant relates to the 
 original grant, llali v Gillixgs Jun'rs. 
 Iscxsee, 115, 117 
 Howard v Moak et al. Le.t!>te r 260, 263 
 
 12. An tscheat grant operates to pass 
 the whole of the original tract es- 
 cheated. If?. 
 
 13. The jury were directed, on certain 
 evidence of title and descent, that 
 land which had been granted as es- 
 cheat land was not liable to be es- 
 cheated. JIalli- Gittiiigs Jun'rs. Lex- 
 see, 122 
 
 It. Land is not eschentable us lor a- as
 
 B3G 
 
 1M)K\. 
 
 there arc heirs of the orit,'inil tenant 
 or g< 74. 
 
 ; is thit posMhiliU ofii 
 
 >.i the 
 of the 
 
 -.mtee, and he cannot groit 
 ,,-.iin nut i: .1 hap- 
 
 Jb 
 
 1 . V-i escheat grant is primu 
 evidence of title; but being a pre- 
 sumption of right, it only c\ists until 
 the contrary is proved. Ib. 1-5. 
 
 SLC Grant 89, 30, 31, 37,38. 
 
 ESCROW. 
 See Non Est 1'actum. 
 
 ESTATE TAIL. 
 
 1. A, fiy his will de\ise.d as follows: "I 
 and devise to my son If I. all that 
 laod called" <ic. "to him an<l his heirs 
 for ever, together with the lands there- 
 to adjoining; and in cn-e In- dies with- 
 o-ii ln-ir-;, to my son J L and the ! ir; 
 of his L'ody lawfully begotten." Thii 
 atcd an estate tail in H I., 
 the dcviace. f^ciidlcrv Young's Lessen. 
 
 69 
 
 \T the art of 3' 
 temnt in tail may defeat the 
 tail altogether, or convey only a limit- 
 t 1 or <|.i*lifi"d estate. A common 
 deed of bar.cpiin and sd<- <>' "-:ites to 
 convey th estate, and ve^t a fee sim- 
 ple in the grantee. fb- 
 
 3. Ff a limited interest is COT 
 
 by a tenant in tail, upon the expira- 
 t ; on of the particular intnvst, the te- 
 nant iit tail ajriin takes the estate tail 
 as originally held. Ib. 
 
 4. A le:nc for sevx-n yeai-s, m:ide hy a te- 
 nant in tail, will have the effect to 
 
 state for the term therein 
 cxpr Ib. 
 
 5. A mortage mado hy a cnant in tail 
 
 .( estate tail for a limited 
 
 tim.^. If the money is paid, the old 
 
 ite is revived. Ib. 
 
 6. An estate t-rl cannot he devised un- 
 der then.-' of Vov. 17 /' 
 
 7. I he following words in the .' 
 
 "-'- of bnd.i 
 
 mt, after vesting a life estate in K 
 P, "an 1 frf>m and after IIT de 
 tlint T P, and //-A ' . shall 
 
 hive and possess the said land- and 
 
 ' 
 
 T P', tint' 1 ! ii-ifhuut Iti'i-fiil /'s'./% the 
 
 rt to and !>e vest- 
 
 ; I', and h'tr hrin, for 
 
 
 i u reversion in fetto 
 
 II P. ->r!!t d MX. v M 
 
 ft <'l. 
 
 S. The court of chancery cannot i! 
 that a det 
 by a tenant in tail, iijuy >; 
 
 the expiration of the time Ihnit- 
 
 vd ii\ l^'.v tv.rthe recordmr ofdreda 
 
 an estate t:iil not be:!)),' within the pio- 
 
 *. of 17tSJ, </i. 7J, .-. 1 1. 
 
 9. T T hy his will, dated in 1795, dt- vis- 
 ed Ins Lri'!-. t be equally divided be- 
 tween his two nephew- U < ind \V 
 S, to them and their he ; 
 and in e-.i-- \\' c .!i-.l \v ' 
 
 . then lie ! iiult'of t!ic 
 
 land* to hi-* nephew ( S, i.> niiu -mt 
 his heirs forever. /////, us to a moie- 
 ty of the. lands devise 1 to \V C, that 
 on his death without lawful issu*- the 
 Mil !. ram.- extinct, and the li- 
 i?ii::iti'>M o" ' - fok ctfert, and 
 
 one moiety of the la. p< > f.i.ii 
 
 in fc^: simple. Smith et ul. r 
 etal. 3U 
 
 1 '. I he art of ! 
 
 !, and 
 
 for transmit tiit^ the tenancy in 
 the issu-: of the tenan', ii alter 
 chnnjfd only hy making 1 the land dc- 
 scendiblii to all tlr^ ciiildren of the 
 tenant intail, and their respective is- 
 sue iiulefinilely. Jh. 
 
 II. R H by his will devised to !i 
 (' H the free use of his land called, 
 See. rluring hit nuturul I iff, and aftei- 
 the death of his son, he devised the 
 land unto the heirs of his son C M. 
 lawfully he-gotten of his body, for 
 erer, and for the want of such liein, 
 then over, ?ic. //</</ by the county 
 court, that C H t<ok an e>tate intail 
 p.-nerd in the land so devised to him. 
 Kt us ? fltrwt v Gt)ld*Lorougk' Latee, 
 
 /S Acts of A*embly 6. 
 - Conveyance I, 2. 
 
 Devise I. 
 
 . Proprietary I, 5, 6. 
 
 I.JTATE VESTED. 
 
 Set Vested Estate. 
 
 K5IOPPELL. 
 Acts 1.2. 
 
 Assmnpsit I. 
 
 Cause of Action I. 
 
 Escheat 10. 
 
 < Irani 1 J, :H . 
 
 Location of Lands 9, 13. 
 
 Practice - . 
 
 Vendor !i Vendee,
 
 INDEX. 
 
 EVIDENCE. 
 
 1. On the plea of no asset-* of pkne. ad- 
 minintracU, the onus jiroliiuuli lies on 
 the plaintiff. Morgan, v Uludt ct ux. 
 
 38 
 Wihon v Slade el ux. 281 
 
 2. If an executor or administrator ne- 
 glects to return an inventory is he 
 bound for all debts and legacies! 1 
 Qucre. Ib. 
 
 3. An executor cannot give in evidence 
 that he had equally and proportion- 
 ably, or nearly so, distributed the re- 
 sidue of the personal estate of his tes- 
 tator, after payment of debis, among 
 the legatees. Morgan v Sludc et MOT. 
 
 38 
 
 4. Where an act of assembly directs 
 that an auctioneer shall give bond be- 
 
 12. The declarations of a former holder 
 Of adjoining lands as to the bounds of 
 the land in dispute, admitted in cvi. 
 deuce, it not appearing by the plots 
 in the cause that he was interested. 
 
 76. 121 
 
 13. The jury were directed, on certain 
 evidence of title and descent, that 
 land which had been granted as es- 
 cheat land was not escheatable, altho* 
 the land had not been claimed under 
 the original grantee for upwards of 
 100 years. Ib. 122 
 
 14. Possession is presumptive evidence 
 of right, and a defendant in eject- 
 ment cannot be deprived of his pos- 
 session by any person but the right- 
 ful owner of the land that is, he who 
 hath \\\c jus jxisscssianis . Ib. 
 
 fore he obtains a license, if the fact 15. An escheat grant is prima facie evi- 
 dence of title} but being a presump- 
 tion of right, it only exists until the 
 contrary is proved, Jb. 
 
 16. A deed located on the plots in the 
 cause, and not counterloeated by the 
 opposite party, may be read in evi- 
 dence by the party locating it, to 
 show how it is located; but when its 
 validity comes in question, if it is a 
 defective deed, it is to have no ef- 
 fect. Hammond et al. Lessee v Nvrrit;, 
 
 130 
 
 17. The clerk of a court has no autho- 
 rity by law to certify a fad under the 
 seal of the court. His duty is to grant 
 exemplifications. Ib. 131 
 
 18. Parol evidence is not admissible to 
 prove that a tract of Ian:I, mentioned 
 in a certificate of survey, never wa* 
 actually surveyed under the warrant 
 which issued for that purpose. 76. 1^2 
 
 19. Parol evidence as to the law, practice, 
 and usages of the land office, respect- 
 ing the proprietary instructions, dif- 
 ferent kinds of warrants and their ef- 
 fects, certificates of surveys and re- 
 surveys, caveats and grants, and de- 
 cisions of the judges of the land of- 
 fice, admitted in evidence in an ac- 
 tion of ejectment, with the consent 
 of the parties. Ib. 132 
 
 20. The rules of the land office cannot 
 be proved by witnesses. They are 
 (o be found on the records of the of- 
 fice, and in the proclamations of tlte 
 proprietary. Hammond ct al. Lessee 
 
 V ll'arfiel'f, 151 
 
 21. Opinions as to the rules of the land 
 office cannot be received as evidence. 
 
 was that tile license was obtained 
 prior to the execution of the bond, it 
 is capable of proof. M'Mcc/ienv T/ie 
 Mayor, &c. 41 
 
 5. Parol evidence admitted to prove 
 that the land granted to the husband 
 of the demandant is the same land of 
 which dower is demanded. Ke?j'rr v 
 Young, 53 
 
 6. Parol evidence admitted to prove, 
 that a debt secured by a mortgage 
 was continental money, a'tho' ex- 
 pressed to be a specie debt. Worth* 
 ini;tii t> Bichndl, 58 
 
 7. Where there is a mortgage with a 
 covenant by the mortgagor that he 
 will pay the money, and he assigns 
 his equity of redemption, is he a com- 
 petent witness for the assignee to 
 prove that the money loaned was con- 
 tinental money? Ib. 
 
 8. Unless the contrary is proved, it is 
 presumptive evidence that a clerk 
 \vlio is dead and who made certain 
 entries on the books of his employer, 
 delivered the. goods as charged.^ 
 Clarke v M'igruihr et ul. 77 
 
 9. A memorandum made by a clerk in 
 the record of a deed stating that the 
 date of the deed had been altered, 
 &.c. is not evidence, being an act done 
 without authority, and will not invali- 
 date the deed. Outings v Norwood's 
 Lessee, 96 
 
 10. Ancient deeds of lease and release 
 not required to be enrolled may be 
 read in evidence. Ib. 106 
 
 11. If the testimony of a witness is in- 
 tended to be objected to because of 
 his hol.ling adjoining land, his inte- 
 rest must be located on the plots. 
 ffatl v Gittlnga Jr>s. Lease, 1-0 
 
 VOL. ii. 68 
 
 23. The usage anil practice of the land 
 office du>t be proved by the adjudi-
 
 93d 
 
 INJjKX. 
 
 cations of tlie judpff j of th*t office^ 
 and not by the opinions of \vi 
 as to what tli.it usa^e and practice 
 may be. fit. 
 
 3. To entitle the pirty m>t seized of 
 the original tract of Ian 1 U> t!: 
 tion of liis i,-r.<iit to the certificate ef 
 resurvey for the vacant laud included 
 therein, he must prove tint his certi- 
 ficate was returned to an 1 in tl; 
 office at the time the junior survey 
 \ude. H.tinmoirl ct a!, v 
 
 24. A deed for a certain number of * 
 
 cre> of land, (beinjf part of a tract,) 
 
 without metes or bounds, but refer- 
 
 ring to another deed (not produced,) 
 
 . is not leg.il evi- 
 
 dence to show title, or to support the 
 locution of the same on the pli>ts in 
 the cause, without producing- the 
 deed to wliich it n ' 
 
 - >. Where certain facts ni! circumstan- 
 ces were not a : 
 
 to prove that a deed recited in ano- 
 ther deed li^J been executed. 
 
 /b. U7. 
 
 26. The time when a certi:. 
 
 A as returned to the ! 
 matter of fact determin.iblc b\ t'ic 
 iurv. lla/um'Mid et al. Lessee v ll'tr- 
 
 159. 
 
 27. Certain facts and circumstances not 
 permitted to he given in evidence to 
 j'l-ove at what time a certificate of 
 survey was relumed to the Ian 1 of- 
 fice. Ik 
 
 23. The actings and doings of a person 
 under hoin thtf party does not claim 
 in an action of ejectment, not permit- 
 ted u> be given in evi K-nce. 1L. 
 
 29. 1'ar >1 evidence not admitted to 
 prove that a deed of nunumission un- 
 der the act of 1752, ch !, s 5, was 
 attested in the presence of two wit- 
 nesses. ffegro Jamet v Cfatfher, 176. 
 
 CO. Whether or not tlie counsel of the 
 plaintiff U bound tO ansm-r wlifther 
 or not lie h-is in po<---.-ion certain let- 
 ter* written by the d-.-fi-ndant to the 
 plaintifT relative to the subject in di-- 
 pute. M. 
 
 31. As to what is lesral evidence of a 
 sale made at auction The entries 
 ma Ir^ l>y a clerk to the auctioneers 
 are not the best evidence. V>. 
 
 ' ,rol evidence admitted to prove 
 the manner in which wilU are nnde 
 nd proved in France. J)c .W/rv v Trr. 
 r\'r, 191 
 
 \ f-opy of a will, executed \s\ 
 dclp/ua, an 1 ininsmiltcd by the testa- 
 
 tor t ; by a no- 
 
 i it isl-in 1. and : 
 cd undt-ra coin n -- ,i is,i|,' ( ! t 
 
 i xhentirat- 
 
 cd by Inning tin- c ol" the 
 
 rY.. t' e.ilo .-, that it is the 
 
 .'lire of t!i in 1 which, 
 
 with the tcstiiir isnta- 
 
 ry executor, returned under the com- 
 n, is s'llVu-i'-ii'dy pn>vi-!, 
 ne n-a-1 i;i evidence. Ib. 
 
 ol. Proof of tlie /V(;.v/i laws in 
 meutary airnir^. 
 
 a commission to take testimony, and 
 ad:nhu-d \\\ eri : : Ib. 
 
 o5. '!'! h wing thj seal of a 
 
 court of our ow\< p court 
 
 of the state, is :i ntira- 
 
 tion of th ''u court it 
 
 t:fy. 7V 
 
 36- Th 1 .' s:':d of(!it- court of a t. 
 
 country diu-^ n,t pi <;it it 
 
 tun- Ib. 
 
 3T. l':,ri>l , . : to prove 
 
 the seal of the co-jrtofu {>. 
 try. 
 38. vVl, ; - r - ^ fji|;-<tion 
 
 tally t.r CMilaternlly ' ourt, 
 
 - 1 ne itrie: : 
 til'- ad nis-i,'i;i of '-\ \ 1 
 served as if the (jueslion was u 
 in i- /';. 219 
 
 C laws of a foreign country are to 
 be proved hy cvi.!.- > 
 are to decide what is p;-o;>er evidenco 
 i.l to c-Mistrne them, 
 anrdjudpe of tlr-ir applicability to the 
 'jurt Jb. 
 
 W. The leK'-rs ol'a witness per;nitu-d 
 to be read in evidence to impeach 
 the credit of the wr 
 he had sworn upon his e\:iminatioa 
 t.ikcii under a rcMTimis .ion, coir 
 tory to the contents of (li- 
 mit to prove am o'liM- f.ict. Ib. 220 
 41. If a contract is liy parol, til- party 
 is at liberty 1 . 
 
 prove the inti-nti.-m of tlie par' 
 to wlien- it w:\st-) be executed. Ifi. 
 I?. It tlie plainiifF in an actiot 
 
 '!/ files an account in e >urt eon- 
 t.iinin^ the items of liis chiin a^ains* 
 the diT-ii liTii, IK- i^ pr=rlud--d from 
 g<iin^ into cvidcnc'- to establish his 
 claim in a manner di<Veren from that 
 in which he Ins rl.-eted '> liis ac- 
 count to consider the defendant liis 
 de'>' 
 
 43. In an action of drVt upon a icuardi- 
 anV Imn,! dit.-d in '7'7, the plaintifl" 
 proved by i witross, that Una of the. 
 plaintiff wasjduhm; (us minority, rent-
 
 INDEX. 
 
 ed by the defendant, to the witness, 
 in l~yi, and that the rent was after- 
 Wards lessened, in consequence of an 
 agreement between them that the 
 Witness shqujd take charge of the 
 defendant's stock upon the land. 
 JIt.fi/, that such evidence was in-.ulu.is- 
 sible. U unity v Selby. 244. 
 
 44. A copy of a paper purporting to bo 
 an additional inventory to the inven- 
 tor}- of the estate or the deceased, 
 Certified under the hand and seal of 
 the register of wills to be a true copy 
 taken from the original additional in- 
 ventory offered, (not proved.) by the 
 nduiinistrutor, and lodged in the of- 
 fice of the register, was held to be in- 
 competent evidence to charge the ad- 
 ministrator with the amount of the 
 goods and chattels therein mention- 
 ed. Emory's Jldm'r. D. jtJ. A. v 
 Thompton'a lx j x. 244 
 
 45. An original pa; ; er purporting to be 
 an f'udditional inventory to the inven- 
 tory of the deceased, offered by the 
 admir.irftrator," proved to be in the 
 Land writing of a person who acted 
 as a clerk for the administrator, and 
 endorsed "additional inventor}-," in 
 the hand writing of the administrator, 
 found among the papers in the office 
 of the register of wills, wrapped up 
 in the original inventory of the estate 
 of the deceased, was held to be com- 
 petent evidence to charge the admin- 
 istrator with the several sums of mo- 
 ney specified in tliK said paper, as 
 part of the goods and chattels of the 
 deceased. Hi. 
 
 46. In an action of ejectment brought 
 by the lessee of *,he ftstry of a Parish, 
 the plaintiff offered to read in evi- 
 dence certain entries in a book, pur- 
 porting' to be, and proved by a wit- 
 ness, who WLIS formeriy register of the 
 vestry, to be handed down to him as 
 the vestry book of the parish Held, 
 that the testimony was improper, and 
 ought not to be read in evidence. 
 Atcrtin and Smith v Gunby et al. LC.K- 
 
 <17. A private plot of the lands in dis- 
 pute permitted, under certain circum- 
 stances, to be read in evidence. How- 
 ard v Aloak et a{. Lesree, 268 
 
 48. A deposition t;>ken on the survey, 
 of a witness, who was absent out of 
 the state at the time ofUie trial, was 
 permitted to be read in evidence, due 
 diligence having been used to procure 
 the attendance of the witness. 
 
 Jb. 272 
 
 jp, YVIiere the facts offered in evidence 
 
 by the plaintiff were not sufficient 
 and legal evidence to warrant the ju- 
 ry m finding that a person, under 
 whom he claimed, died seized of the 
 land for which the ejectment was 
 brought, in opposition to (JO years pos- 
 session oi'thc defendant the strong- 
 est presumption of a good title being 
 in favour or the defendant. David's 
 Lf'itxc v J lupin's htirf, 293 
 
 50. Kvidcnce taken in a former suit in 
 chancery between the same parties 
 for the saiii'j relief!, and which suit 
 was dismissed by the complainant, 
 may be read in evidence by the de- 
 fendants on the hearing of the new- 
 suit. Jn'jjfiiiis v Stump d al. 301 
 
 51. \n (iteumpsU for work and labour^ 
 the act of limitations was pleaded 
 Held, thtJ, evidence of an acknow- 
 ledgment 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 bar the act of limi- 
 tations. Pot v Conuwy's JLd'r. 307 
 
 52. A receipt given by the plaintiff's 
 attorney for a sum of money stated to 
 be in full of a judgment, is not con- 
 clusive evidence that the judgment; 
 is satisfied EO far as to prevent the 
 plaintiff from taking out an execu- 
 tion for any balance which may be 
 actually due' thereon. Hughes v O'jDon* 
 nell, 324 
 
 53. In an action, of trespass q. c. f. the 
 plaintiff offered to prove that he was 
 in possession of the land on which, 
 &c. and that the defendant committed 
 the trespass complained of on the 
 land sp in the possession o.f the plain- 
 tiff, at the place by him located on 
 the plots in the cause llfld, that such 
 evidence was admissible, lioginire, 
 ct a I. vM'Coy, 351 
 
 54. The plaintiff proved by a wit- 
 ness, that he was present v.hen the 
 land on Which, &.c. was originally lo- 
 cated or taken up, and that the tract 
 was then located, as it now is on the 
 plots in the cause Held, that the evi- 
 dence was adjni -bible. J5. 
 
 55. Where the docLration in an action 
 of replevin staled the taking of the 
 goods ta. be in Gay -fired, from the 
 dwelling house of th.e plaintiff Held, 
 that evidence of the defendant's hav- 
 ing taken the goods in Gjy-stnet, was 
 sufficient, without prqving that he 
 took them from the dwelling house 
 f the plaintiff, Faget v
 
 610 
 
 INDKX. 
 
 56. A record honk ol nunty 
 court, containing the certificate anil 
 affidavit of a purlin 17iV, that ho. 
 had in 16H', in X<iint Mury'i county, 
 married u n-.^n> man named I, K, to 
 u white woni.in naitu d K S, Imtli ->.r- 
 vants of VV K an affidavit of a per- 
 son who was present at the inar- 
 
 proving the sa'ne, as al-o 
 the issue by that marriage, and 
 an entry from a parish rcgisti r of 
 the bttcr county, stating that the 
 above were therein recorded in 1702, 
 and the whole recorded in the above re- 
 cord book in 170.3 The entry t!u-i nf 
 in the record book, (there being proof 
 of the loss of the originals and of the 
 parish register,) was oflered in evi- 
 dence in a petition for freedom, b\ a 
 person claiming 1 as a descendant from 
 E S, to prove the existence of a frc-e. 
 white woman named K S in the fami- 
 ly of W K, her marriage, and the is- 
 sue by that marriage ll> Id, that the 
 entry OH the record book was compe- 
 tent and admissible evidence. - N 
 vCofiff!, 360 
 
 57. A F by his will, devised to f 
 
 A M, all his real estate, to be sold by 
 them for the- payment of his debts. 
 Evidence of a sale made at auction by 
 them to VV li, of a part of the 
 together with a memorandum of the 
 sale subscribed by the auctioneer, and 
 receipt given by them for the pur- 
 chase money l!'U\r\ be admissible 
 and competent to show a title at law 
 in \V ('., without ; deed of bargain 
 and sale, or oilier convex ance to him 
 from tin- trustees, and to he sufficient 
 to enable his lessee to recover such 
 rea* estate in an action of ejectment. 
 Zi ll(jin v Guldjiburuugh'a l*s~ 
 <*, 569 
 
 33. The not returning an inventory on 
 the. estate of the deceased b\ his ad- 
 jniniMrator, is not sufficient evidence 
 to charge -the administrator with a 
 debt of tlie intestate. Lctkt't adm . 
 v Beanw, .573 
 
 5V. To establish an account in bar claim- 
 ing a discount in the name of !' H, 
 the principal in a bond given to a 
 trustee for the sale of a real estate, 
 and on which action wan brought a- 
 fpinrt, his surety, the defendant offer- 
 ed to read a copy imd< i MM I of a dc- 
 tret of the court of chancery, for the 
 ale of thv rntate of J K, and lh<- ap- 
 pointment of the plaintiff tn:- 
 makc the -ul( , and the ' 
 port of Ue sle, and ratification by the 
 
 chancellor, together \\ith t>ip s\jli- 
 
 tor's statement and ratification there- 
 
 iwini; the pr'>|x>rlion due to tin: 
 
 creditors and among- others, of the 
 
 bum due to F II alio\e inn . -d, and 
 
 claimed to be .:ct off Jle/il, that such 
 
 .- c- vis niiuliiiissiole. (jiiiitt P 
 
 ''ni'r. 
 
 60. In the s.mie action, the plain- 
 
 tifl'toshow lhat F I'. , i'lcd 
 
 to the proportion adjudged to him out 
 
 of tile pfi'Meds (if : hi It :d CSt 
 .1 1.. and to pro'e that F H w:b one 
 of the sureties in the adiinnistrution 
 of the personal estate of J i., and that 
 it had been mis-ipplv -d, and i.ot legal- 
 ly adir.inistered, oflered in tv'uUiice 
 the administration bond, and an ac- 
 count signed by F 1!, for the adn.ni;-- 
 tratrix //./</, that the evidence was 
 not admissible. ll>- 376 
 
 61. If the possession of land has gone 
 agreeably t'> an aiicient deed which 
 needed no enrolment, the infjicjrimiti 
 of the dee<l muy be read i' 
 
 an 1 ii pfi'. rtiud to ;^-s the laiul. J!'. 'I 
 
 3K(J 
 
 62. \\ here a ded for part of a tract of 
 land has not been particular!) 
 
 ed on the plots in the cause, it may 
 be rend in evidence if the whole tnirt 
 is united in the same person, and tiie 
 whole has been loc.. 11. 
 
 63. \fcine covert, one of the grantors in 
 a deed r.nnvejing a tract of bud, the 
 acknoudengment of which by her, 
 having been declared to he iK t 
 
 was admitted to -ive evidence on the 
 part of the defi-ndant in an net ion of 
 pjectiii'-ut -brouglit for the same laml 
 bv a person claiming under lu-r deed. 
 >'6, (r.ottj 
 
 64. The declarations of a <lcceased per- 
 MHI. then seized of a particul.r, 
 
 of land not located on the plots in th 
 
 cause, were oll'ered in evidence by 
 
 the defendant in an action u< 
 
 incut, to prove the end of the first line" 
 
 of that tract, which wa- the !><- K 
 
 Of the land claimed and located 
 
 plots by the defendant Hilil, that 
 
 the declunitioi: 
 
 in vvli-in i-. Jb. 
 
 65. Where a person acted in the cha- 
 1 racter of a justice <it . altho' 
 
 he did not 30 n\ |o hltiiself, yet it i 
 prima J/icif evidence tliat lie ! 
 thority to act as .uch. ti> 
 hr, ' Si6 
 
 \'hat u alleged as a motive or in- 
 ducement ii. ti dc by 
 a witness, mav be rcuJ in 
 
 lit. 3SU
 
 INDEX. 
 
 67. The minutes of the proceedings of 
 a irotary public of a foreign country 
 art to be considered HS records under 
 the cvirtcsy of nations; and a copy, un- 
 der tin- lumd and notarial seal of a no- 
 tary, is sufKcicht evidence of the pro- 
 test of it foreign bill of exchange. 
 
 Jb. 399 
 
 68. Where a person was frequently seen 
 in the counting house of the plaintiff 
 transacting business as a principal, 
 and was generally supposed, believ- 
 ed 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. Jb. 400 
 
 69. The admissions bj counsel of cer- 
 tain facts stated in a special verdict, 
 taken at a former trial between the 
 same parties in the sahie action, are 
 not evidence upon a new trial between 
 them. Homey v Gt:ssuif(iy t 402 
 
 70. If slaves remain in the possession of 
 the vendor, the bill of sale must be 
 recorded; and whether they remained 
 in his possession, is a matter of fact 
 for the jury: and if the jury find they 
 were not in his 'possession, then the 
 hill of sale is not required to be re- 
 corded, ami it is not evidence, al- 
 though it has been recorded, unless 
 the execution of it is proved. Jb. 403 
 
 71. ' o h:y the foundation for proving an 
 original deed lost, the' evidence must 
 he given to the court. Jb. 404, fnolej 
 
 72. I'roof being made of the loss of an 
 original deed of Mortgage of land and 
 slaves, dated in IV'63, the insjtexhhus 
 was admitted to he read 'as legal evi- 
 dence, although the deed was not re- 
 corded in the manner prescribed by 
 law so far as respected the slaves in 
 dispute. Jb. 407 
 
 73. v ^ here a deed is lost, or not in the 
 power of the 'party to produce it, it 
 is only necessary to show an examined 
 copy, or prove the contents of the 
 deed. Ib. 
 
 74. <_ crtain facts refused to be admitted 
 in evidence to prove that a person, 
 who purchased certain slaves, and had 
 made a voluntary gift of them, never 
 paid any consideration for the slaves. 
 
 Jb. 408 
 
 75. Certain acts ?nd declarations of 
 the defendant, subsequent to his sale 
 of the slave for which the Action of 
 replevin is brought, before his in- 
 solvency, are not evidence to defeat 
 the claim of the plaintiff. Jb. 
 
 76. An afli'davit made by a debtor, and 
 payment into the treasury under the 
 
 tender law, admitted in evidence to 
 prove the person \v:is indebted and 
 made the pajment into the treasury. 
 
 lt>. 
 
 77. Proceedings in chancery under an 
 insolvent law, are not evidence in 
 favour of the person who had obtain- 
 ed the benefit of that law, to prove 
 an acknowledgment and admission by 
 him on his application for the benefit 
 of that law. lb> 
 
 7$. A bill in clmnccry, with all the pro- 
 ceedings and the decree thereon, can- 
 not be read in evidence in a case be- 
 tween different parties from those 
 named in the proceedings. Ib. *09 
 
 79. ^n answer in chancery made by the 
 respondents therein, from information 
 derived from the defendant in this 
 cause, is not admissible in evidence; 
 but the declarations of the defendant 
 are admissible evidence, and -j. witness 
 may recur to the answer to refresh his 
 memory as to the declarations made 
 to him by' the defendant. Jb. 4l6 
 
 8'J. Declarations made by the defendant 
 before and after his discharge under 
 an insolvent law, may be given in evi- 
 dence againsit him. /. 4]2 
 
 81. A surveyor's original book of sur- 
 veys, and his parol testimony admit- 
 ted by the general court, in an action 
 of ejectment, as competent evidence 
 to prove that a certificate of survey, 
 returned to the lane! otfice, was forged. 
 See COLIIT or CHAKCEIIY, 42, 4'J, 44, 
 and 
 
 JJi Tt h> 'i Le.tscc v Singer y, 4 55 
 
 82. ' he proprietary instructions of th 
 30th of June 1<69, requiring a sur- 
 vey of reserved lands to be made, &c. 
 read in evidence. /^ 
 
 83. The general court refused to direct 
 the jury that it 'was not competent in 
 a court of law to give evidence to the 
 jury, or to go into any parol examina- 
 tion of the surveyor or his books to 
 vacate a grant, or to prove that tha 
 certificate of survey returned to the 
 tind office, as a foundation for tjie 
 grant, was forged or fraudulent, and 
 not made out by him or his authority.. 
 
 Jb. 45* 
 
 84 . Depositions returned under a com, 
 mission issued to Perinsylvate'v to take 
 testimony in the cause, was not per- 
 mitted by the general court to be read 
 in evidence, it not appearing by the' 
 return of Uie commissioners that they 
 bad given any notice, or tfyat proper 
 notice had been given. J.6. 459 
 
 35. Depositions simiUrlytuken were not 
 ncnuutsd to be read L: uud'.i: '-.;_. ^.
 
 INI 
 
 in eridenre "by the 
 
 - opposite party; concurred in by the 
 court of pp Ib. 
 
 -rt of law admit!'. 
 <len> t that a certificate of 
 
 MM V 
 
 : not h:iv f been dct : 
 ( niv on the ground, tliht it ihi 
 certitvMi- \\is pn-ved to Ix 
 the grant ub'aincd 0:1 it 
 Jent, anu could not have an\ opera- 
 m h;w to po.*> the hnd to the 
 grantee therein. Singtry i' 'i .. 
 
 -(t>'iitrct, -I*,' 
 
 the fact of the forgery of a 
 
 of surn-v, urn!, r the grant 
 
 on which the deieiui.ur claimed, came 
 
 before the court and jury collaterally, 
 
 an 1 \v:ia not directly in <n.icMion, the 
 
 i<wtie beiwi en the p.. , who 
 
 li.i-1 the right, of possession to the 
 
 land in i . tin- verdict in 
 
 favour of ; ,.it cannot be re- 
 
 \'.t'.< IK-, to prove that the 
 
 eel"..' 76. 
 
 88. 1 i: ;" pan 
 
 of a tract ot lai.it i-Mitraclc.! by a 
 bond of conveyance to be 
 nor any description wh< n-!,\ it run be 
 identified, pa:-ol evidence is not ad- 
 missible to show thwt it was intended 
 by the parties to be laid off in a par- 
 ticular ma:uv r; and the bm.d is void 
 for uncertainty, e\ct-pt on the princi- 
 ple of election. Iluntt U Parks e GW, 
 et al. 4 ( J8 
 
 ns\ver in Chancery 2, 3, 4. 
 
 Bill (i -is 2. 
 
 i .ani-u-y 17, 25. 
 
 . Covenant ', 3, *. 
 
 F.jectmciH 33. 
 
 . ti'rantol, 
 
 . -re. 
 
 . I.r-c.vrjn of I.:.n.!i9, 10, 16. 
 
 Plcoc Adnitnibtravit 1. 
 
 Presumption. 
 
 '1 . 
 
 i-FTIONS. 
 Sue Answer in (-' !. 
 
 I M ( I (!0\. 
 
 1. A receipt given by tli phtintiff'n aU 
 ton none] , s;.i'> <l i> 
 
 judgment, is not con- 
 .t tlu- ju-i 
 to I rent the 
 
 ::<kil>i| out c^|' 
 
 Uially 
 
 : if 1 1 
 
 2. A juUjaient Lu\in^ been 
 
 ! his Mir. 
 
 who sun n :\\ ( . 
 
 landb. The adniiniktrutor o< * 
 
 amount ot Hie .!<:(!- ir.ent lu H, 
 who c r< it. d tin >< i-ii- 
 
 ihe ii'.'iiin 
 ot ('. .; 
 for the use ot t] 
 
 for a i;ile of the !M : 
 
 UlisOlu, CvC. :.!: ( tilC 
 
 dittmlunt, t'ltc.ititd'. Luiy r-\. 
 
 508 
 <S"pf Assigr.mr p.t 1. 
 
 - J>H-d I. 
 
 - - Fieri Facia*. 
 
 - P:irol Evidence 6. 
 
 r.xr.cuTOR n?< SON TORT. 
 
 1. On the death of a defendant in an 
 action of debt, Jkc. u summons may 
 issue to an c\:rutor lit. :i ;. li rl, 
 being no ]cgft] i-.\i.cutor or :u: 
 tralor of tl .>r U* 
 nd defend the action. Xurfvlk v 
 
 ft, 
 
 2. An executor . . being siirr.- 
 Mi'.'iicd, appt-nred to :!i action ..I debt, 
 brought r.gainst t!i' . und 
 com. 
 
 the lebt \\:is due to the plaintiff. An 
 
 auditor was then appointed to ascer- 
 
 tain the sum for which judgment 
 
 should be rendereii, i ^ hud 
 
 to ti 10 the 
 
 art . : 
 
 This appointment of uu-.: 
 
 U-nvards j-tricki'ii out !>y tl.e county 
 
 court, and :. ji'.!;;iiH'nt \v:is rendei'eil 
 
 on tiie conlV.-..,. .oned 
 
 for the debt an.! 
 
 m, fi >i">i tit km i* jr 
 
 Krrf.r b. ing brought, tl,c 
 
 b) the cct.it ot ap, 
 
 l.\r.<TTn;; PRO FORMA. 
 See Kxccuion. & Adnui.istrator* o, 4. 
 
 n:. \TORS. 
 
 1. It' an executor or a... : neg- 
 
 . an im i 
 
 tKHind 
 
 t r Stadc, i 
 
 2. An c-xccufor cannot give ;n cvi 
 that !. ...,d prupof 
 bl\, d tin- n si- 
 due ' 
 
 tator nong 
 
 the several legatees. Jitr 
 
 tt us. >* 
 
 3. Any creditor may uc an
 
 INDEX. 
 
 543 
 
 pn furmi, provided he shows him- 
 self to be a creditor under the laws 
 'of the country where the contract 
 v.'as made, and as Jong as assets re- 
 main in the hands of such executor, 
 he is answerable to the creditors; aixl 
 if there is any surplus it is to go into 
 the muss of tlie succession, to be dis- 
 tributed according to the laws of )he 
 country where the testator was do- 
 miciled. De Sof/ry j; Terrier, 224 
 
 4. Art executor pro forma is accounta- 
 ble to the testamentary executor; 
 only for the surplus remaining after 
 pavment of debts. Ib. 
 
 5. Whatever fund in this state is an- 
 s\\-(Tubk- for debts, is answerable to 
 all creditor;; alike, according to the 
 laws of the State. Ib. 
 
 6. If (he. liiws of this state give a pre- 
 ti'ivnce to its citi/ens in the payment 
 of the debts of a deceased, the de- 
 fendant, if sued by a foreign creditor, 
 must pieud such preference. Ib. 
 
 7. The not returning an inventory on 
 the estate of the deceased by his ad- 
 ministrator, is not sufficient evidence 
 to charge the administrator with the 
 debt of the intestate. Iseckt's Mm'-r. 
 t l JfauirN, 373 
 
 8. Where the executor, &c. had con- 
 fessed the action, and admitted the 
 debt was due to the plaintiff', and an 
 auditor was appointed to ascertain 
 the sum for which judgment should 
 
 ' he rendered, regard being had to 
 the assets, &c. according to the act 
 of 1798, c/i. 101, sid cfi. B, . 9, v/hich 
 appointment was afterwards stricken 
 out by the court, and a judgment 
 rendered on the confession above 
 mentioned, for the debt and costs 
 de bmiis tcstntoris, si rum de bonis pro- 
 pnis as to costs, such judgment was 
 held to he erroneous, and was re- 
 versed. Norfolk v Ganff, 4.35 
 
 9. Art administraior must comply with 
 the order of the orphans court di- 
 recting rt sale of the personal estate 
 Of the deceased for the payment of 
 debts, and he cannot retain the pro- 
 perty at the appraised value, on pay- 
 ing the debts out of his own funds to 
 the amount of the appraisement. 
 Hall r Griffith, 48 
 
 10. After payment of the debts of the 
 deceased, and all legal costs and 
 charges attending the administration, 
 the administrator must deliver over 
 the residue of the personal estate spe- 
 cifically to the representatives of the 
 deceased. Ib. 
 
 11. Where an administrator retained a 
 part of the personal estate- of the de- 
 ceased, at the appraised value, an'l 
 sold a part for the benefit of the es- 
 tate, and a part as his own property 
 11' Id, that he must account for the in- 
 crease of the slaves, and for the use, 
 labour and hire, r.f ;dl slaves retained 
 or hired by him; and whore one of tha 
 slaves hud runaway, he- must account 
 for such slave at the appraised value, 
 unless he us-d all reasonable endea- 
 vours to regain possession of the slave . 
 He is to be allowed for money e-- 
 pended in clothing and maintaining 
 snch slaves, as were unable to work, 
 and in bringing up, clothing, fkc. the 
 increase of --Lives, so long as they con- 
 tinued a charge. Also for all debts 
 paid; for his commission, and all legal 
 cots. II'.- is to be charged with the 
 amount of the inventory; with the 
 sum gained on the sales of the pro- 
 perty, and with the debts received. 
 
 7. 
 
 12. A complainant i<? not entitled to re- 
 lief in equity against the executors 
 of a joint obligor, who was a surety 
 in the bond. Per Hanson, Chan. Wil- 
 liams v Hodgson, 474, fnotcj 
 
 See Attachment 2. 
 
 Evidence 44, 45. 
 
 Executor DC Son Tort. 
 
 Pleading 1, 3, 4. 
 
 Plene Administravit 1. 
 
 EXECUTORV DEVISE. 
 
 1. Where the limitation over is in fee 
 after an indefinite failure of issue, it 
 is not good as an executory devise, 
 because of its tendency to create a 
 perpetuity by rendering property tin- 
 alienable, flrury & Bennett v Negro 
 Grac?, 556 
 
 2. Z W, by his will devised as follows: 
 "1 devise and bequeath the whole of 
 my property, r'-al and personal, to my 
 beloved daughter M VV, to her and 
 her heirs for ever; and in cast she dies 
 ivitlit>'<! lawful i.ssue, then the whole of 
 my said property is to be possessed 
 by my dear wife A, during her 
 iviiinwhond, and no longer, and at her 
 death or marriage to be sold at public 
 sale, and the moiioy arising therefrom 
 to be equally divided between H, C 
 and N ." M VV obtained possession 
 of the property so devised to JUT, and 
 died in the 17th year of her age, un- 
 married, and without having any issue, 
 having by her will manumitted -.ill her 
 slaves. "A, the widow of the tcsto-
 
 9*1 
 
 IND 
 
 tor, is now livir.i*, Vn< -n^ in th* life- 
 time m' M \V 
 
 mmunutted 
 
 );ic.i tor IHT freedom 
 
 .-.t II, C and N - ///./, tli.a the 
 
 11 the \\illlo A, dm''!!!? 
 
 her widowhood, constituted * good 
 
 itory dnUe, because it was to 
 
 Ct on the coutin^'-fu-y t" M 
 
 V. ,t h-aving' issue at the 
 
 if bet (ka'h: .md Uiat the peti- 
 
 t loner is not entitled to 
 
 /See Devise 7. 
 
 F.M'MPLIFI CATION. 
 
 &e Authentication I, ^. 
 Kvidencc '" , 33. 
 
 - OMCI: <'opy 1. 
 
 - Official Acts 1. 
 Record 1. 
 
 EXPLANATION. 
 A!r Covenant 1. 
 
 1. A bond tfiven by om- partner for a 
 simple contract debt d-.ie from the 
 partners to a creditor, and acrvpt-d 
 hy lii in, is by operation of law a re- 
 lease of the other partner, and an ex- 
 tinction of the simple contract <!,.;, 
 at law and in eiuHy. William* v 
 
 f/IM?XW, * ? * 
 
 See Bi-q-jcit 1 . 
 
 - Court of Chancery 5. 
 
 - - Covenant 1. 
 
 - - Ueviso 1. 
 
 - - French Laws *, 5. 
 
 - Ignorance 1. 
 
 F. 
 
 FACTOR. 
 
 See Discount 3. 
 
 i vniKUft CHILD. 
 
 Sire Parol Agreement 1. 
 
 FKC SIMPLE. 
 fire D"VMC 4, S. 
 -- i:v>,tc Tail '2, 9. 
 
 TAIL. 
 
 See Estate Tail. 
 
 .. 
 
 -nny br jom- 
 
 ,-,1 , , in lictin-jiit. Bt*M r 
 
 Vale, 4 - b 
 
 1 
 
 j I-N'. 
 
 conveyances, .lefrcttvely nc- 
 ftinct 
 
 were hcM not to p .. .tp. in 
 
 tli." Ian It to the grantees Grt^ft 
 
 -, et ul. L J 
 
 HuUingworth t et uj . : M-I)onul<l,rtul. 
 
 2. A fc>nr conrt cannot transfer or pass 
 her interest in Imul to another unless 
 by fine, common recovery or deed, 
 
 ..ii'l .'. k M'. .--cord- 
 
 iij.i" to the niodv- I !>> llu aet 
 <>l l.i, >:'.- . . H 
 
 t M'lh.iuH, et al. -V>0 
 
 3. A liter.d adherence to the form uf 
 the certificate of the acknovrledgment 
 of a deed by r. . - 
 
 tKMltial'M reij'i:>iile; ,i'l I the oh.. 
 of wnnls deemed essential can be. 
 supplit d bv the substitution of words 
 equipollent, or of Miuilar im]n.. 
 sit^niHcation. 16. 
 
 Sit Witness .1. 
 
 FIKRI FACIAS. 
 
 1. \uvitiiftffin; ufier sc-i'.'ire un Ter 
 
 a furi J'i , is no 
 
 xcdeaa. 1> iV. c Cfui;>- 
 
 tin-, 7 
 
 -'. U letherornot the return made on 
 a fieri fifini >>y a >'ner.!i', stauni; that 
 he had laid it "on four acres of laml 
 ne:ir /fa/// w>re-town, and i*djoining; 
 tlc Ian Kof d /-," al-o on "about 'i7 
 acres of land more or less, part of 
 T //or T li, :.n 1 part of At X, King- 
 to the N side of y j (7/-->lreet nr.ir Ilui- 
 tiiti'ire town," ifv. and the sherin'' 
 return on a teaditioiu txp. 
 for salo of the lands, that he had 
 "mode and sati-ried plaintitFin part," 
 together with parol evidence of the 
 sule of the lands by the sheet if, and 
 his deed therefor to the purchaser, 
 are sufficient to vest the legal title to 
 Uic lands in the purchaser > M- Elder' 
 ty o Smit' 7'2 
 
 ;. II the defendant, during the pen- 
 dency of a itdre facia*, on a judg- 
 ment against him, aliens his '. 
 the pl.iintill' after a Jlit on the ncirt 
 facii :r a ft" i _/'/<""'-". aid 
 
 "levy it on the lands so aliened, with- 
 out proceeding airainst the all 
 
 Ib. 
 
 4. If \ has purrh.tscd land from H, and 
 paid lor it, without receiving a con- 
 ice, or it I< 'tolds in tiMi-,t for A. 
 
 \ ha* an interest liable 
 to be taken and sol.l .-'./>, 
 
 and the purchaser in entitled to the 
 Hid of the court of chancery to ob- 
 tain tlie legal title. Fwf JlMiion, 
 Chan. 
 
 r Stump, et al.
 
 INDEX. 
 
 545 
 
 5. But if A has only contracted and 
 given his bond for the purchase mo- 
 ney of a tract of land, and received 
 in return a bond of conveyance Has 
 A such an equitable interest as is lia- 
 ble to he sold on a fitri facias, so as 
 to place the purchaser in the room of 
 A? Ibid. Ib. 
 
 0. Whether or not land is hound by a 
 judgment, so far, as that if A has a 
 judgment against him, and before 
 execution, A buna fide sells his rig-lit 
 to B, that C, the plaintiff, may on 
 fieri facias take and sell it without 
 inquiring or seeking for other pro- 
 perty.' fb'ul. Ib. 
 
 1 '. A judgment having- been obtained 
 by B against K, and C his surety, a 
 Jl'ri facias issued thereon against E, 
 who survived C, and was laid on E's 
 luiul. Tiie administrator of C paid 
 the amount of the judgment to B, 
 who directed the judgment to be en- 
 tered for the use of the administrator 
 of C. A vcnditiiiid cxpunas, issued for 
 the use of the administrator of C, for 
 a sale of the land, was returned 
 unsold, &.c. and was, on motion of 
 the defendant, qua&hed. Ee,rnj v Ni- 
 choll*. 508 
 
 See Attachment 1. 
 
 - Insolvent Debtor 1. 
 
 FIXE. 
 S?e Feme Covert 2. 
 
 FOREIGNERS. 
 
 1. If a contract is made in this state be- 
 tween foreigners, and the debtor dies 
 in a foreign country, the creditor may 
 recover in the courts of this state ac- 
 cording- to the laws of the state. J)e 
 
 v Tcrriti; 228 
 
 FOREIGN COURTS. 
 
 iS'ee Authentication 2. 
 -- Seal 2, 3. 
 
 FOREIGN LAWS. 
 
 1. Parol evidence admitted to prove the 
 manner in which wills are made and 
 proved in France.. De Sobi-y Ex'r. of 
 f l\rntr v Terrier, 191 
 
 2. Proof of the French laws in testamen- 
 tary affairs, Jkc. returned under H com- 
 mission to take testimony, and admit. 
 ted in evidence. Ib. 198 
 
 3. 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 thorn, 
 and judge of their applicability to the 
 question before the court. Jb. 219. 229 
 
 VOL. ii. 69 
 
 4. Any creditor may sue an executor 
 firofor/ita, provided he shows himself 
 to be a creditor under the laws of the 
 country where the contract was made; 
 and as long as assets rem.iin in the^ 
 hands of such executor, he is answer- 
 able 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. 
 
 Ib. 224. 
 
 See Contract 2, 3, 4, 5, 6, 7, 8. 
 
 Distribution 2. 
 
 French Laws. 
 
 FORGED BANK NOTE. 
 
 See Assumpsit 3. 
 
 FORGERY. 
 
 1. A surveyor's original book of surveys, 
 and his parol testimony, admitted by 
 the general court, in an action of e- 
 jectment, as competent and admissi- 
 ble evidence to prove that a certifi- 
 cate of survey returned to the land of- 
 fice, was forged. JBwcing's Letmee v 
 Singer y t 455 
 
 See Court of Chancery 42, 43, 44. 
 
 Evidence 86, 87. 
 
 FORMULA. 
 
 See Acknowledgment of Deeds 1, 2, 5. 
 Feme Covert 1, 3. 
 
 FRAUD. 
 
 1 . Fraud is not to be considered as a 
 single fact, but a conclusion to be 
 drawn from all the circumstances of 
 the case. Jtrogden v Walker's Ex'r. 
 &?c. 293 
 
 2. Fraud may be inquired into in a court 
 of law. !">ee FOUUCHY, 1. PAROL EVI- 
 DENCE 9, and 
 
 jBofelng'-f Lessee v Singery, 455 
 
 3. Where a bill was filed in chancery to 
 set aside and annul a decree hereto- 
 fore obtained by the defendant against 
 the complainant, on the ground of 
 fraud practised by the defendant in 
 obtaining that decree, there appear- 
 ing to be no evidence of fraud, the 
 bill was dismissed. Hoffman v Baker, 
 
 *i>b' 
 
 4. Where a court of law admitted evi- 
 dence to prove that a certificate of 
 survey was forged, such evidence 
 could not have been deenird admissi- 
 ble, only on the ground, that 
 certificate was proved to be forged, 
 the grant obtained on it was fraudu- 
 lent, and could not have RIIV opera- 
 tion in law to puss the hud to the
 
 tflG 
 
 1NDKX. 
 
 grantee therein. Singtry 
 itty-Genfral, * A ' 
 
 .id may be inquired into as well 
 at law us ii! equity, and where frauds 
 arc clear! 
 
 law and :i court of chancery have con- 
 cum '<-* H>. 
 
 6. On a bill in chancery for vacating a 
 
 ficjitc of survey and grant of the 
 land, on the ground of a fraud com- 
 mitted by a forgery of the certificate 
 //'//, th.it th.: court of chancery 
 had jurisdiction, although the C^UL-.- 
 tion of forgery of the same certincl^ 
 had, in an action of ejectment be- 
 tween the wine parties, come col- 
 laterally ho fore a court of law ami 
 jury, and the court admitted evidence 
 to establish the forgery, and the jury 
 pave their verdict in favour of the de- 
 fendant, who claimed under the cer- 
 tificate alleged to be forged. Ib. 
 
 7. Although on a bill in chancery charg- 
 ing 1 forgery, the defendant cannot l>e 
 Compelled to answer any fact which 
 will criminate himself, yet that court 
 
 .11.1 till 
 
 proof of the forgery, by vv :. 
 
 eeii committed, will grant riTu-f 
 by vacating the grant, &.c. from 
 whence the injury has arisen, or will 
 make such decree as the circumstances 
 of tin; case render necessary Ib, 
 
 See. Court of Chancery 7, tQ, 2*, 3-*, 
 40, 4*. 
 
 FREEDOM. 
 
 1. A parol sale of a slave for seven 
 
 years, and then to be set free and 
 
 manumitted by the vendee, who, on 
 
 the expiration of the seven 
 
 executed a deed of ifMnumiauon 
 
 Jfc/il, that it was suflicicnt to grant 
 
 !<>m to the slave. Negro Cain v 
 
 ml, 573 
 
 ~. Where a slave was sold in this state 
 
 by an administrator of a deceased, to 
 
 a person resident therein, b-it who 
 
 afterwards removed to / 7, _"'"'/ and 
 
 took the slave with him IftlJ, that 
 
 lave was not entitled to his frce- 
 
 d'im. .iV^rr; fi'-.nrg' 454 
 
 5" F.tidei," 
 
 II :-.. Kvidence 2, 3. 
 
 Manumission 1 , 2. 
 
 FRENCH LMVS. 
 
 1. If an heir pure and simple, heir with 
 benefit of inventory, nr beneficiary 
 has not i. 1 with tin- 
 
 C or succc- 
 
 ins '"* France, so as to prevent h 
 cover) as such under the French 
 
 laws, he can recover in the courts of 
 
 this -.true on a contract made in J 
 
 2. \Vlx-iluT or not his having intr:- 
 meddled would di -feat his right of f 
 
 Ib. 
 
 ". Unless the jury ar<- satisfied, accor- 
 ding to the laws <>t r.-n'i'-, tli r 
 heir with benefit of imentory, wl.n 
 or, cannot recover in 
 the quality of creditor, without re- 
 nouncing, then such eo-'n, ir i.-, . : 
 to recover as a creditor whatever the 
 jury may find due on a contract 
 nu'fr in France, according to tin- 
 of France. 22B 
 
 jiart of the personal estate of a 
 testator (lying in /',. < -ct to 
 
 duttibution uinong his co-heir^, but 
 the sin |il. Miuin, remaining 
 
 after the payment of all hi- 
 legacies; nnd a debt due to ofte of tl.e 
 co-li '.'ich entitled to pay- 
 
 ment as a debi due t .-, un- 
 
 a law 
 
 uditiT 
 
 witii .ton , it In 
 
 not renounce as f-o-heir. Ib. 
 
 5. The lav. are matt 
 
 faet to be found by the jury, upmi 
 cvi<lcnce to be produced to them; 
 nnd unless the) find some law <<!' 
 France which extinguishes the cluim 
 or right of recovery of (he plaiiitifi", 
 (being- co-heir and creditor,) he h:is 
 ur'.ght to recover. //. 
 
 6. Vt here tl.e court directed the jury 
 tiiat it did not appear to tin- court 
 that there was any law of Frumt 
 which was :i legal impediment to the 
 pl;uniiH''s r.-co. 11 
 
 Set Foreign Laws. 
 
 G. 
 
 GAHNlSHfeE, 
 
 Sec Attachment J. 
 
 I. Dr.SCRIPTIOX. 
 See Description 
 
 (,r\n; \i, ;:I.;T CATION. 
 
 Fee Hearsay KviJencc '2, J. 
 
 See 
 
 ' INK. 
 Bank Note- 
 
 (.!< \ 
 
 >1 evidence admitted to provr 
 that the land granted to the nusljan.l 
 of a dcnundant is tho vin.e land i>
 
 INDEX. 
 
 which do\vcr is demanded. Knfirv 
 Young, 53 
 
 J. If the heirs of J S, in whom the title 
 to a tract of land was, were living- in 
 Great Hrilain at the passage of the act 
 of confiscation, then an escheat war- 
 rant issued to E N for the said land, 
 issued without authority of law. But 
 thut a grunt which issued for the land 
 surveyed under such warrant, came 
 within the provisions of the 8th sect. 
 of the act of J\'nv. 1781, ch. 20. Ow- 
 !^'' i> Norwood's Lessee, 96 
 
 p. Such grant is valid to pass the 
 
 land lo E N, notwithstanding he had 
 paid no more than two thirds of the 
 appraised value of the land. Jo. 
 
 4. Lands liable to confiscation may be 
 granted by the state under an escheat 
 warrant. lb. 
 
 5. Such escheat grant will operate 
 
 by relation so as to give title from the 
 date of the warrant of escheat. lb. 
 
 6. The 8th section of the act of 
 
 Nov. 1781, cti. 20, secured the land so 
 escheated to the party on his paying 
 two thirds of the value. lb. 
 
 7. Where the court would not direct 
 the jury that the plaintiff's escheat 
 grant did not pass the land, the de- 
 fendant claiming the same under u de- 
 fective title. Jb. 
 
 8. If land liable to escheat is included 
 in a certificate of survey and grant, 
 vnder an escheat warrant on another 
 triict of land, such grant will operate 
 to convey a good title to the land so 
 included, if there has been possession, 
 and payment of emit rents, for more 
 tjian twenty years, &c. Hall v Git- 
 ting&Jrs. Lessee, 115 
 
 ?. 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 after- 
 wards became escheat, will not pass 
 under such grant, and the state is not 
 estopped from granting it to any ci- 
 ther person. 16. 
 
 1.0. An escheat grant relates tp the ori- 
 giual grant. Hall v Gittings Jrs. Les- 
 see, ' 115 
 Hoica--d v Moah et al. Lessee, 260, 263 
 
 11. If there are two descriptions of'land 
 granted, the one by name and the o- 
 ther by metes and bounds, the grant 
 will operate to pass the land accord- 
 ing to that description which is most 
 beneficial to the grantee. Hull v Gil- 
 tings Jrs. Lessee, 117 
 
 12. An escheat grant operates to pa:-s 
 t^e whole of the original traut es- 
 
 cheated. Hull's Git/ings J>s. Lessee, 
 
 117 
 Ilmrard v Noale ct al. Lessee, 263 
 
 13. The jury were directed on certain 
 evidence of title and descent, that 
 land which hud been granted as es- 
 cheat land was not liable to be es- 
 cheated. Hall v Giltingis Jrs. Lessee, 
 
 122 
 
 14. An e$cheat grant isprima facie evi- 
 dence of title; but being a presump- 
 tion of right, it only exists until the 
 contrary is proved. lb. 
 
 15. Where a certificate of resurvey was 
 liable to be vacated upon a caveat, 
 and the vacant land included thereiti 
 might be and was granted to another 
 person, whether or not a grant for the 
 land in the first mentioned certificate 
 will not pass the land? Hammond et 
 ql. Lessee v Norris, 13U, 
 ffammond eta!. Lessee v War/! eld, 151' 
 
 16. To entitle the party, not seized of 
 the original tract resurveyed, to the 
 relation of his grant to the certificate 
 of resurvey for the vacant land in- 
 cluded therein,' he must prove that 
 his certificate was returned to and in 
 the land office 'at the time the junior 
 survey was made. ll<j.mm<jnd, ct al. 
 Lessee v Nrirris, 132 
 
 17. If a person, ngt seized of the ori- 
 ginal tract, takes out a warrant to re- 
 survey such tract, he acquires a title 
 in the vacant land included in such re- 
 survey, when the composition money 
 is paid, unless some other person in 
 the mean time becomes interested iri 
 such vacant land. lb. 
 
 18. Where the grant will relate to the 
 certificate of resurvey so as to over- 
 reach a mesne grant for the same land, 
 Hammond, et al. Lessee v Aorris, 132 
 Huinmijud, dal. Lessee v Warfidd, 152 
 
 155 
 
 1C>. A grant for vacant land, not con- 
 tiguous to the original tract included 
 in a certificate under a warrant of re? 
 survey, will operate to pass such va- 
 cant land, unless some other person 
 in the mean time becomes interested 
 in such vacancy. lb. 
 
 20. Where the relation of a grant to the 
 certificate of survey depends upon th$ 
 tiiue when the caution money was paid. 
 
 lb. 
 
 21. Where it depends upon the 
 
 time when the certificate was return- 
 ed to the land office. lb. 
 
 22. To entitle the party to the benefit 
 of the relation of his grant to the cer- 
 tificate of survey, it i* incumbent on
 
 048 
 
 INDEX. 
 
 Mm to show an equity, and flie pro- 
 ducing copies under sell of tlie war- 
 rant, certificate of survey and grant, 
 is not sufficient to entitle liim to such 
 it. J{<t'.ini<)iiJ t ct a 1. Lt-iaee v 
 ll'<,r field, 159 
 
 J3. A grant of land is to be construed 
 rnoit favourably for the grantee. Tol- 
 soii' /stnlitun, 17-V 
 
 t4. A grant for land cannot he corrected 
 or controled by the Certificate of SUr- 
 vcy, but will pass the Kind compre- 
 hended within the courses and dis- 
 tances expressed in the grant. Il>. 
 
 25. If a grant is for more land than is 
 contained in the certificate of survey, 
 it may be lacated in the court of chan- 
 cery; but if it is for less land, the 
 grantee's remedy, if any, must be in 
 equity. Ib. 
 
 26. The Proprietary held the dominion 
 of Maryland, and property of the 
 Boil, which he could sell and dispose 
 of in the same manner as any other 
 
 in, and subject to the same bene- 
 ficiary Ie.if.tl and equitable rig 1 
 in tin- hands of any other p rson ; and 
 on an equit.ible interest being obtain- 
 ed agreeably to the rides of the land- 
 office, by any person taking otit a 
 warrant, returning a certificate of 
 survey, and paying 1 the composition 
 money, the party became entitled to 
 a grant, which he could compel from 
 the Proprietary. Howard? '.' 
 ul. Lessee, 249, 2.59 
 
 27. I he reversionary interest of the 
 Proprietary, reserved m lands granted 
 by him, might be destroyed by deed 
 
 by the tenant in tail under the 
 act of Jtuu 17' '5, c/r. 1, as effectually 
 as the reversionary right of any indi- 
 vidual. Jb. 
 
 28. A subsequent grant, covering land 
 in which the Proprietary had a rever- 
 
 t, will operate to pass 
 su li reversionary interest. fb. 
 
 29. An escheat certificate and grunt do, 
 by operation of law, relate to the 
 original tract, ai.d is strictly within 
 the principle and rule of law of rela- 
 tion betwern grunts and certificates. 
 
 /!,. Jfi.J 
 
 30. Where the first and second . 
 
 of an original tract of land ralied 
 
 /> l-\ are described as "beginning at 
 
 a hounded locust tree, bring the N 
 
 1 "inded tree of /> . Jcall- 
 
 rd >'<',} and running by the land of 
 
 * ps. to a bounded oak, 
 
 then N E 150 p. to a bounded red 
 
 ..f the said / JI , land;" and flic 
 
 first aitd second course* of an es- 
 
 cheat grant of the snme hnd called 
 J) f, is described as "beginning at a 
 locust, now bounded at or ver 
 to the pl-.ice where stood a bounded 
 1'): u-i', tfie original beginning tree of 
 D >', and a bounded fee of a tract 
 of l.iiid called f (', formerly laid out 
 for 1) 1', and running thercc with 
 the laid land, K 6j p.s. (i; being ex- 
 pressed in tin: certiticate oftl;- 
 nal survey to run by the land 
 said P, E 63 ps. to .1 Ix.iiiuU.: 
 which cannot be found.) tlu IK 
 23S ps, still bounding on th< 
 
 land, to the N W branch of /Y 
 river, (it being therein i\p 
 to run N E loO ps. to a bound 
 oak of tli: siu! /'' land, Mid t!^ 
 tificate of the said P's land mention- 
 ing to run that course to a boumied 
 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 /> /'i< rightly 1< 
 on tiie plots at the termination of the 
 twelfth line off.' <', and theie is n> 
 evidence of the of any tree 
 
 as called for at the termiuvioii 
 of the first line of J) /', then the 
 expressions in the escheat grant 
 do bind that grant to the true locati- 
 on of the original tract called /> /'. .u 
 to the two first lines thereof, so 
 the second line of the nni;inal did ac- 
 tually extend, and that tlu- !ir>t un.l 
 second lines of the original tract <io, 
 by virtue of the expressions- tlu r. - 
 in used, bind those lines on the thir- 
 teenth and fourteenth lines of (' '. 
 
 Ib. 264 
 
 31. Where the plaintiff has not located 
 h'.s escheat grant on the plots co-ex- 
 trusive with the location of the origi- 
 nal tract, lie cannot give evidence to 
 Vend his pretensions b?_i'>i:d the 
 lines and limits he I :o t!ie. 
 t-scheat grant; but I. > d l-y 
 that location from }" >l t'nr 
 letter /", lor.iU ! on the ; 
 
 wheuco In- must run tu the li, 
 .rr/'i branch at \vh. 
 
 the s:ime may be, agrc'-ably tr his !>. 
 : of his pi-eli.ii-.ions, and the lo- 
 .11 by which the defendant Ins 
 
 32. The plaintiff cannot give a:r. 
 dence ofthe lin- ;;Tai.t 
 running otherwise than li- 
 ed them on the plots as hi 
 
 or>R, hut he isnot precluded from giv- 
 ing evidence of any other i 
 linen of the origin J tract, by way of
 
 INDEX. 
 
 illustration; and lie ir>ay support the 
 location of his pretensions so f:ir as 
 he can sliow that tlicy arc located 
 within the limits of the original tiact. 
 
 Jt>. 
 
 33. I-Yom the place where the second 
 line of a grunt of land terminated, the 
 third line thereof, viz. "Then N 
 JS' V. .S6 p. to a bounded red oak," 
 must run the number of perches ex- 
 pressed in '.he grant, and cannot in 
 its length he increased or eliminis'hc-d, 
 unless proof is made (,fthe tree called 
 for, or the place where it stood. 
 
 Jh. 267 
 
 34. So the fourth line, viz. "Then 
 
 S \v to the head ot //, u- aril's branch," 
 must nn, a straight line to the head of 
 I/ward's hrj'iich. 74. 
 
 35. The course and distance expressed 
 in a ^rant of land, must always be con- 
 trolfd by a call expressed therein as 
 the termination of the course; and the 
 following 1 course and distance used in 
 a grant, viz. ".N K 50 ps. to a small' 
 branch which maketh the outward' 
 iiar-ows cf the said land," must be 
 complied with as nearly as they call 
 to strike the. brunch described, as it 
 existed at the time of the survey, sub- 
 ject to the variation of the compass on 
 that line. Hi. 269 
 
 36. Where the court refused to direct 
 the jury that the second line in a grant 
 of land, vi/. "Then N K 150 ps. to a 
 bounded red oak of the said P'x land," 
 (being the fourteenth line of that 
 land, which tree heirg- lost, the plae.e 
 where it stood could not be proved,) 
 must terminate at the' end of 15Q ps. 
 from the beginning thereof, it being 
 a matter of fact to be left to the de- 
 termination of the jury. lit. 270 
 
 37. The court refused to direct the jury 
 that an escheat grant did not pass any 
 Jaud included iij the original grant, 
 except the same was included within 
 the metes and 1 bounds of the escheat 
 grant as particularly described; and 
 that the escheat giant did not, by le- 
 gal operation, convey all the land in- 
 cluded within the original grant, un- 
 less the particular metes and bounds 
 of the escheat gr..nt did also include 
 the same. lit. 271 
 
 38. 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. Quere. 
 
 Jb. 261, (~notej 
 
 39. Where the < xpresMons u>ed in a 
 grant of land ih scribed it as "h ing on 
 
 the ridge of gunpowder river, begin- 
 ning at 'a bcimded oak being llie 
 \\ t-hicrnmost bounds ot a tract ot l;>inl 
 laid out for M. S. ant! running \\ :>'*() 
 ps. to a bounded oak ttu'inlu.^ by the 
 /// full*, and running M tiom tli 
 said oak," Ixc. IhM, that they do not 
 operate to bind the first line to termi- 
 nate at the great falls, oltho' no evi- 
 dence is given of the tree or place 
 w here it stood . Hull v GiUingft Les- 
 ser., 392 
 
 40. As to a variance between a descrip* 
 i.fii of land contracted to be sold ai.d 
 cor.veycd; and that mentioned in & 
 grant oftlie laud, see COIUT OF CHAS- 
 c>:iiY, 33 and 
 
 liuiuiwind v Supping/on, 446 
 
 41. A certificate ot survey was returned 
 to the land office for a tract of'laml 
 called B J, surveyed on the linli of 
 April 1794, for A J. On the bth of 
 May 1797, A J obtained a warrant of 
 resr.rvey on Jf'C, and in his rc-survcy 
 made on the 1st of May I79f, Ke in- 
 cluded B J, and called the laud li &. 
 On the 10th of May 179^, A J obtain- 
 ed a proclamation warrant on his own 
 certificate of the land called B K, and 
 had it executed on the 29Ui of April 
 1799. Kut D \V had, on the 2Ult of 
 February 1798, obtained a proclama- 
 tion warrant on B ./, and had it execu- 
 ted on the 22d of May 1798, and call- 
 ed the land B C. A .) paid the com- 
 position money on B S on the 8th of 
 May 1799, and L> W paid the compo- 
 sition money on ft ^' on the 9th of 
 Ma) 1799. .Both certificates were ca- 
 veatcd by the opposite purtv;undt)ie 
 Judge of the land ofh'co ordered a 
 grant to issue to A J for the land call- 
 ed B A'. To vacate v hich grant a bill 
 was filed in the court of chancery in 
 the name of the attorney general at 
 the relation of D \V. Decreed, ibul ihc 
 bill be dismissed. Tut .IttMnty Cc- 
 trul vJurrttt, 4~2 
 
 See Fraud 2, 4, 6, 7. 
 
 1'arol Kvidence 9. 
 
 Proprietary 1. 
 
 Reversion. 
 
 Trespass 4. 5. 
 
 GUARANTY. 
 
 1 . '''he defendant in a letter of credit 
 to the plalntiirs in favour of H and 
 Ci, used the following- expressions; 
 "1 will guarantee their cn^a^x-njcntj, 
 should you thiiik it nee:fsxirv, for ;uu' 
 transaction tiny ma\ h.ne with your 
 h j^bc .' ' //. <V, tiiat the guaranty us 
 an absolute one, and to cor.iiiiuc ur (
 
 1M)K\ 
 
 td coutuiTiTiaMded by t!,' % defendant. 
 
 r. /^u'if.'u 
 ftran i. 
 
 .i \UPI.\.\ 
 
 Guardian. 
 
 II. 
 
 See 
 
 HANDWRITING. 
 
 T. J. 
 
 ini.MH !< AI'ION. 
 & Dcscrij.:. 
 
 ID HOT. 
 uirt of Ch;.> 
 
 M.V ,r TIII: LAW 
 
 i- %' '.n,<>- 
 
 quenccs resulting fi ( r lu\ 
 
 ing- accepted the d< . >i th c 
 
 UTS for;* simple contract debt 
 due from llic partiM jshij., cam 
 cuse or I'iiui a ground lor n.lii . 
 qnity. /J , -'i'AOM, 47^ 
 
 &e Court of Ch i 
 
 H.I.USTI.'A'i; 
 See Location of Lands !<>'. 
 
 IH'.AK- \V I.VIpr.MT. 
 
 1. Tlie declarations of a former holder 
 of the adjoining lands, as to the 
 bounds of the land in dispute in nn 
 action cf e-ji-rtnicni, admitud in evi- 
 dence, it not appearing by the plots, 
 t.'iat lit was interested in establishing 
 the fuels related by him. liaii 
 
 '. ' U I . 
 
 2. In a. petition for 
 following jiai't of 
 
 of a witness was held to be compe- 
 tent under- 
 stood she, [the ance-'..r ( (lie peti- 
 tioner,] came fj-om R N, but did not 
 inow it of his own knowlcdp 
 Jif-ard that she wont by the name of 
 Patt Shorter." As also this part of 
 the deposition of another witness: 
 " ! hat his mother, in her life -time, 
 to',1 him it was generally reported, 
 and she always understood, that a wo- 
 rt. an named Fi. '. :imc to the 
 :v of J Lt> 
 
 >, 360 
 
 ?. The declarations of a deceased per- 
 son, then seized of a particular tract 
 of land, not located on the plots, were 
 offered hi evidence b\ tin- defendant &c Con, 
 in an action of . j.-i-tn.en 1 , t-> 
 the end of the fir.-t line ',(' tli:/ 
 which was the begin 
 claimed and looted on the p; 
 
 defendant f.'ilrf, that the decla- 
 !e in i-vi- 
 
 , :>y.J 
 
 freedom, the See Court of chancery .35. 
 deposition 
 
 IMI'LII:I> \VAKI:ANTV. 
 
 See Warranty. 
 
 I.MlM?0\ri) VAI.I 
 See Couit ol'Chui.n.i - 
 
 IN \DK.nr Af V (UTF;l 
 See Court of Chancery 20,34, 
 
 JNCl 
 
 See Ejectmcm -, o, 4. 
 
 - Limitation oi . 7, 8. 
 
 IXC M 1 \\IT.N 
 
 0. 
 
 IN' VALUE. 
 
 INl)!',l'i:NDr.NT C 
 Co>el.ain o, 4, . 
 
 ;K. 
 
 an cst-' in a<~t 
 
 of assembly in (!:* fnit'iir krlrx i a 
 person it being on a contin;, 
 which nf . htcrs 
 
 then living will take. J>calltti.< 
 
 16 7 
 Possession 4. 
 
 r.ntrv 1. 
 
 
 
 u\ 
 
 AI. OPINION. 
 
 wpi 
 
 1. AO indicti .ii'mg two counts, 
 
 one , and the i \ii r a 
 
 ,i'.ld t(j be gon<l. 
 
 Jturk r Tii" A 
 . As t-> the join.. -.rin'i- 
 
 n. 1 1 c.jeM, and 'he joinder ol 
 
 of action in civil casig. 
 3. After the prisoner has (Jiudi.: 
 
 rally to :u indictmc'it having two 
 :) may be 
 
 thai"--'! >i;,oii .*! f't the conn'..- 
 
 tO t! v;!'. Jb. 
 
 Sec Criminal Prosecution 1. 
 
 NT, 
 
 Stt Blank Jiidi:
 
 INDUCEMENT. 
 
 1. Wlv.it is alleged as a motive or in- 
 ducement, in the deposition made by 
 a witness, may be read in evidence. 
 liry den v Taylor . 393 
 
 INJUNCTION. 
 
 1. Whenever, on motion to dissolve an 
 injunction, it appears from the answer 
 that the complainant was entitled 
 to an injunction at the time of obtain- 
 ing it, the same shall continue until 
 final hearing 1 or further order, unless 
 the defendant admits every thing al- 
 leged in the bill, on account of 
 which the injunction was obtained. 
 "When that admission is made, and 
 the injunction has been to stay 
 execution at hi\v, the injunction may 
 be dissolved, with a proviso that riot 
 more be levied than remains due after 
 allowing every tiling claimed by the 
 complainant. Hut when a proper 
 ground for the injunction is admitted 
 by the answer, and there still remains 
 .1 dispute between the parties, the in- 
 junction is invariably continued until 
 final hearing or further order. 
 Lynch v Cul^ale, 34 
 
 See Court of Chancery 15. 
 
 INNUENDO. 
 
 See Slander 4, 5, 6. . 
 
 INSOLVENT DEBTOR. 
 
 1. Property, acquired by an insolvent 
 debtor after he has been legally dis- 
 charged under the insolvent law of 
 March 1774, ch. 28, otherwise than "hy 
 descent., if'//, decfse, bequest, or in a 
 course of distribution," is not liable for 
 or subject to debts contracted prior to 
 his discharge; and if such property is 
 liable, it cannot be affected by a Jifri 
 
 facia*, without a stire facia* having 
 previously issued, if a year and a day 
 have elapsed. PoJlitt v Parnona, 61 
 
 2. No person can set up his discharge 
 under an insolvent law to disaffirm 
 his prior acts. See ACTS, 1, 2, and 
 Dor at y v Gaspeutavy, 411 
 
 See Declarations 1, 3. 
 
 Evidence 77. 
 
 - - Reference 1. 
 
 INSPEXIMTJS. 
 
 1. If the possession of land has gonr a- 
 greeably to an ancient deed, which 
 needed no enrolment, the luftpcximus 
 of the d-.-ed mny he read in evidence, 
 and is effectual to pass the land. Hdl 
 v Giff! tigs' s /<f.s.v , , 380 
 
 ", Proof being made of the loss of an 
 
 original deed of mortgage of land run! 
 .daves, dated in 1763, the Jrupexiritui 
 was admitted to be read as legal evi- 
 dence, altho' the deed WHS not record- 
 ed in the manner prescribed by law 
 so far as respected the slaves in dis- 
 pute Dorsey v Gassuway, 403 
 See Evidence 5o. 
 
 INSTRUCTIONS. 
 
 1. The proprietary instructions requir- 
 ing a survey of his reserved lunds to 
 be made, &c. read in evidence. Bore- 
 ing's Lessee v Singery. 456 
 
 INTEMPERANCE. 
 See Court of Chancery 20. 
 
 INTEND ABBN'ft 
 
 See Court of Appeals 1. 
 Judgment 1. 
 
 INTENTION. 
 See Acts of Assembly 4, 5, 
 Will 4. 
 
 INTERESTED WITNESS. 
 
 Sec Witness 1. 
 
 INTERROGATORIES. 
 
 See Answer in Chancery '.!. 
 
 Commission and Commissioners 1. 
 
 Notice 1. 
 
 INTESTATE'S ESTATE. 
 
 1. Any creditor may sue an executor 
 pro forma, provided he shows himself 
 to he 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 answer- 
 able 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, /-'c 
 Sobry r 'J ' r/vVr. 2:24 
 
 2. Personal property adheres to the per- 
 son; and wherever the intestate is 
 domicif at the time of his death, the 
 property is to be distributed accoi fl- 
 ing to the laws of that country. lb. 
 
 INTOXICATION. 
 
 Sec Drunkenness. 
 
 INVENTORY. 
 Se.e Evidence 4-i, 46, 58. 
 
 Executors & Administrators, 1, 7. 
 
 Plene Administravit I . 
 
 JOINDER OF ACTIONS. 
 1. When causes of action may be join-
 
 INDIA. 
 
 -I in the . .n. Lurk 7?"? 
 
 JtHNW.K OF i i 
 
 \> ?>?>! ;. .iuler of otVences in cri- 
 mii; .' joinder of c ms- 
 
 , civil cases. //w/i n 
 TV * 
 
 ' ning two counts, 
 
 1 thrt other 
 10 be 
 
 JOINT TF.N.VNTS. 
 
 1. Win-re :n < U ve-^ed hy an net 
 
 of assembly in two persons tlu-ir 
 
 hfirj and assigns is it an estate in 
 
 j<.'">t tenancy or tenancy in common' 
 
 , ft nl. fs.w i' Iluru.ti'itl, 167 
 
 jjj-e Acts of Assembly o 
 
 JOINT ORLIGUHS. 
 
 Mrt of Clrincery I-'"'. 
 - Kxecutors Sc Administrators li. 
 Surety ''>. 
 
 IRRELEVANT. 
 
 Slander 
 
 issr:;. 
 
 50. 
 
 1. Can the defrn Lint by his rejoinder 
 put in i>- in I distinct 
 
 I'ion HS-i^aiii^ l)iv:ich- 
 ' > ).).!. of the con- 
 
 ait ion of:< iry 'uoaJ 1 Q 
 
 Afir^i'il r **! ' ' 38 
 
 IK- Ailui'uiistravit I 
 -- - Slun Icr *. 
 
 .IflX'.F.S & JUSriCES. 
 
 Ses Dill of KXCL-;J:;OMS I. 
 
 JL'DGMKN T. 
 
 .1^:1 1 11 ito cu'irt cannot tn- 
 
 >\\\, h:it will m;iki: every 
 
 intcn.l.n -lit in s:i;);)orl of 
 
 rior court. 
 
 41 
 
 2. A 
 
 .mini 
 
 >vcr the pciul'.\ 
 bin I liuvin^' a r>!lter.ii con! 
 and . .1 i> in the 
 
 of tin: pliiutitT. or for tl. 
 of an 
 
 i j it. //j. 
 
 3. - v, s tin; 
 [il ii vlailt 
 t-j tli-i cxtwt of il t c pciul'.y ot" tlij 
 
 bond upon \vhu . 
 although the defoilint had ;>! 
 ffciHTiil |>ri-t>rni:iii'-'', utul vvii 1 , 
 rcplic:tion on tlie u.irt of t!u- \< 
 ai-i^iuii^ breaches withdrew the plea 
 and ' i'-ni. fh. 
 
 4. A jinljjnu-ni ol>t incJ by a third |KT- 
 
 ..;.iinst the vendor uf l:uv ; 
 _/?(/<? niaile fora valu.i:>le consideration, 
 //' wf tlii- nmkinif the contract ^n<l 
 the payment of the money, cannot 
 defeat tlu- et|nital)li- interest uc<niired 
 by th;- vcn K-'j, nor is it a lien on the 
 land to alVect the ritf'iit of such cattui 
 i/'lf tr:i\! . /Iii.itjtMiti i' fc..' .64 
 
 .">, A j'ld.^inrnt i-. u li.n on the Ian 1 <!' 
 the <!i it a-, a 
 
 fund for its payment. Bnt th> : 
 
 f^lnt'j in the l.'iul is not veV.ed in '. iio 
 judgment creditor, ultlioug'h lie can 
 convert it into money tosatUfy hisdc-Lt 
 by pursuing the proper mean*. /'. 
 
 0. If the defendant, during the [> 
 cy of a ncire. fuciu.i on a jn. !_;.!! 
 gviinsl him, alic:nhis laiuU, the plain - 
 tif!', after a Ji'it 0:1 the 
 nuy is^iii; a ff ri f.ir'in.t, ;m<l Ir-, 
 the Ian Is so aliened, without p:-<> 
 in>,' a^ii^t the alienees. M'LMerry v 
 Sii'. ' /. 
 
 7. Where the judgment of a court he- 
 low, after a general verdict in n*- 
 SitirifMiif, was reveised, because of a 
 defective count in tlie declaration. 
 
 (intnL C ll'-dJiltr, ft III. 186 
 
 8. Whether or not land is hound by a 
 judtf.irjnt, so far, as that if A has a 
 judgment against him, and bef-r 
 edition, A oona }\\$ right to 
 B, that C, the plaintirT, in ty, on Jl ri 
 
 >e and .sell it without IH- 
 <l uirlng or so. king tor olhci- proper' v ' 
 tfjpktIU r */uinj>, i-t (i/. 
 
 9. A receipt given by the plaintitf's at- 
 torney for a s:iui of money, s'.ated to 
 he in full of a ju.lgiiient, is not con- 
 clusive evidence tint the judgm -ut 
 i^ s.itisfieil, so far as to prevent th? 
 plain'ilHrom taking out execution for 
 any balanc." tiiat m.iy be actually due 
 thereon. ILi^li 
 
 10. A j-i Ig n jut having been obtained 
 by I! i . and C his sui 
 
 ft. f-i. issued thereon against K, w!io 
 survived < . : u;. 1>. 
 
 The ad'iiinistnitor of C. paid the 
 amount of the judgment to K. 
 directed the judgment lo he ei 
 for the uso of t!ie admini^' 
 
 i-.-d for the 
 
 u- of ;!i administrator of C, for a 
 
 of the 1. .nds, was relumed un- 
 
 soUl, uad \v*a on luuUou of tlio d-^-
 
 INDEX. 
 
 533 
 
 fendant quashed. Berry v J\~eJinll.i, 
 
 5G8 
 See Attachment I . 
 
 Court of Chancery 15, 17, 24. 
 
 Covenant ft. 
 
 Dower .5, K 
 
 Executor DC Son Tort 2. 
 
 Kxecutors &. Administrators 8. 
 
 " Insolvent Debtor 1. 
 
 JURA TIRGALIA. 
 
 See Proprietary 2, 3, 5. 
 
 JURISDICTION. 
 
 1> Fraud may be inquired into as well 
 at law as in equity; ami where frauds 
 are clearly established, the courts of 
 law and a court of chancery have 
 concurrent jurisdiction. 'Ain^i-.n/ t> 
 Tiie Attorney Gi-nrral, 487 
 
 See Court of Chancery J, 33, 42, 43. 
 
 JU1JY. 
 
 1. Whether or not H will was legally 
 executed is a mutter of fuct for the 
 jury. Hail v Glllini^ ,//* J,ex?re t 121 
 
 2. The jury are to find when the com- 
 position money was paid on surveys 
 of land. 
 
 Hammond ft a!. Lessee v A^m.9, 130 
 Htttnnnmd et al. Lessee v WarjielJ, 151 
 
 3. The time when a ceriificate of sur- 
 vcy was returned to tlie land office is 
 a matter of tact determinable by the 
 jury, llunvnond ct al. Lessee v II "ar- 
 f.fl'if, 159 
 
 See Criminal Prosecution 4, 5, 6. 
 
 Location of Lands 11. 
 
 Presumption. 
 
 Variation. 
 
 Verdict 1, 2, 3. 
 
 JUSTICES OF TIIE PEACE. 
 
 1. Where a person acted in the charac- 
 ter of a justice of the peace, al- 
 though he tiki not style himself as 
 such, yet it is pr'niM facie evidence 
 that he had authority to act as such. 
 Bryiku v Ihylur, 396 
 
 L. 
 
 IAC.HES Sc LENGTH OF TIME. 
 
 L.i.nitation of Actions. 
 Specific Performance 1. 
 
 LAM). 
 
 S^c Judgment 4, 5, 6, 8. 
 
 LAND OFFICE. 
 
 1. Parol evidence admitted, with the 
 came'it nj't he pariics; to prove the law, 
 practice, and usage of the land office. 
 J, et al. Lessee a Awns, 13 ] 
 
 VOL. ii. 70 
 
 2. I'arol evidence is not admissible to 
 prove the rules, usages :md practices, 
 of the land office. Haiujmntd, et ul. 
 Ltn-ecv IVarfidd, 151 
 
 3. J'bc courts of justice will take no- 
 tice of the rules of the land office as 
 forming 1 regulations relative to pro- 
 perty, and will direct the jury as 
 to the law arising from such rules. Ib. 
 
 4. The rules of the land office cannot 
 be proved by witnesses; they are to be 
 found on the records of the office, 
 and in the proclamations of the Pro- 
 prietary. Ih. 
 
 5. Opinions as to the rules of the lami 
 office cannot be received a.s evidence. 
 
 H). 
 
 C . The us<ge and practice of the land 
 office must be proved by the adjudi 
 cations of the judges of that office, 
 and not by the opinions of witnesses 
 as to what that usage and practice 
 may be. Jo. 
 
 7. The adjudications contain the 
 
 legal information as to what have been 
 the usage and practice in the land 
 office. Ib. 
 
 8. To entitle the party, not seized of 
 the original tract, to the relation of his 
 grant to the certificate of resurvey 
 lor the vacant land included therein, 
 he must prove that his certificate was 
 returned to, and in the land office, at 
 the time the junior survey was made. 
 Hammond, ct al. Lessee v A7>m'a, l^i> 
 
 9. VVhere the relation of the grant to 
 the certificate of survey depends upon 
 the time when the certificate was re- 
 turned to the land office. Hammond, 
 et al. Lessee v Warfield, 1 1 
 
 10. The time when a certificate of sur- 
 vey was returned to the land office is 
 a matter of fact determinable by the 
 jury. Ib. 159 
 
 11. Certain facts and circumstances not 
 admissible in evidence to prove at 
 what time a certificate of survey was 
 returned to the laud office. Ib. 
 
 See Grant 41. 
 
 LAPSR OF TIME. 
 
 See Court of Chancery 34. 
 
 Limitation of Actions. 
 
 Presumption 4. 
 
 Specific Performance 1. 
 
 LI:ASE. 
 
 See Estate Tail *. 
 Evidence 10. 
 
 LEASE & RELEASE. 
 See Evidence 10.
 
 1NDFAV 
 
 LCC.ACV t LEGATEE. 
 See Bequest I . 
 Executors & Administrators 1, 2. 
 
 LETTER OF ATTORNEY 
 See Corporation . 
 
 LETTER OF CREDIT. 
 See Guaranty I. 
 
 LEX LOCI. 
 
 See Contract 
 
 Distribution. 
 
 - Foreign I^aws * 
 
 I- ' -.tate 1, ?. 
 
 Personal Estate I. 
 
 LIABIHTV. 
 See Surety 1 . 
 
 LICENSE. 
 See Trespass C. 
 
 Lir,v 
 
 See Court of Chancery -'4. 
 Equitable Estate 2. 
 
 - Fieri , 6. 
 ' Judgment +, 5, 6, 8. 
 
 - Overseer 1. 
 
 Preference 1. 
 
 LIFE ESTATE. 
 See Estate for Life. 
 
 I. IMITATION OF ACTION'S. 
 
 1. Specific performance of a bond exe- 
 cuted in IT 1 ' 1 *. fr conveying 1 a tract 
 of land, decreed by the court of chan- 
 cery in favour of the heir at law of (lie 
 obligee, on bill filed in 1792. lluff- 
 n'r'x devisees v DicJewi'* //"'-, 46 
 
 2. Where the plaintiff with title, having 1 
 possession by enclosure and cultiva- 
 tion of a part of a tract of land, claim- 
 ing the whole, and the defendant 
 without title, having possession by en- 
 closure of a part of the same tracl, 
 vith the use, (by cutting- timber 8tc.) 
 of the other parts not enclosed, the 
 plaintiff is bound by the act of limita- 
 tions as to that part of the land which 
 I* in the possession of the defendant 
 by actual enclosure for more than 
 twenty years next preceding the 
 bringing the ej-ctincnt, but not as to 
 the parts uw?d by t!i 
 
 rior to thr enclosure. C'fuiney r / 
 gnhl rf nl fs.ixtr, 
 
 3. The art of limitations did not attach 
 or run : r.ord Proprietary 
 on iinv possession of v-xcant lands. //*. 
 
 4. No adversary possession of land run 
 avail against t!ic bUtc. Hall v (Ht- 
 tingt Jr$ La**, 112 
 
 5. An adversary possession commencing 
 o^-ainst the Lord IV 
 
 - 
 
 act of '. ntisi-.ition. In. 
 
 'hinif but 
 
 : a title UK. 
 under a grant. Jit. UV 
 
 7. A person out of possession for more 
 than twenty years, w Inn- then 
 
 nn adversary ] in \irtueof 
 
 some right or by actual t-iu-lo-.uri-s, 
 liis heir, or p- under 
 
 him, muy bring: ;HI '. '. ithout 
 
 an actual entry into tlic- land. Jfuin- 
 l)li>n 'I'lirfnlil, l."..i 
 
 8. A naked posse-won. >i witli- 
 out rij^ht,) is only to the 
 extent of actual er.clovi. lb. 
 
 9. In (unimj'ixit i< : . !.!ionr, )<< 
 Ct of limit;,;i ,;is was pK:ided 
 that evi.li lice ot':i:i ^im-nt 
 by tlie defendant that the plain 1 
 berformed work for him, bi:t that he 
 had an account in bar, and wii.-n a 
 
 nl who was tiu-ii up the hay 
 shoiild come to town, he would havft 
 
 .;ion of t!ie act of limi- 
 tation,. /'. r (';,;.<: y'v ai/in'r. S'j7 
 1C. Where the defendant was in | 
 
 sion of, and holdinc,' a slave tor the 
 space oftt: .ut.T.edcnt totlic 
 
 institution of an action of replevin a- 
 p-ainst him for the slave HtM t that 
 the net of limitations v. .is a bar to the 
 plain'.!, i\ !vco\vrv, notwithstanding 
 tin- j)n>[>crty in the .--lave had been in 
 the plaintiff, and the slave was loaned 
 by him for an indefinite time to J S, 
 who during that loan sold the .slave *o 
 the defendant! and although the suit 
 u;i, brought within three years from 
 the time the plaintiff knew of such 
 
 Jtntric i 
 
 11. Where the defendant in an action 
 of ejcctm-i.t v. .1, in possession <i 
 100 acres of land, by enclosures and 
 cultivation, P,>r l.S years, and tl,. 
 
 I liis en.-!' I to include 
 
 150 acres, and he pos^ 
 same, so enlarged, by enclosures for 
 6 years th Aiming the sami; 
 
 as liis own IfrM, that he had title to 
 th-- l!)')ai : possession. 
 
 // 3yi 
 
 , 4, 5, J8. 
 Possession 5. 
 
 I.fMITATFOV OF r.STATE. 
 See Executory Devise 
 
 I.OC \TION OF LA V 
 
 1. If the testimony of a witness is in- 
 tended to be objected to because of
 
 INDEX. 
 
 553 
 
 his holding 1 adjoining land, &c. his 
 interest must be located on the plots. 
 ffaU v Oittings Jr's. /,<..', 120 
 
 2. The declarations of a former holder 
 of adjoining' lands, as to the hounds 
 of the land in dispute, i:i an action of 
 ejectment, admitted in evidence, it 
 not appearing- hy the plots that lie 
 WHS interested in establishing the fuels 
 related by him. fit. 12 i 
 
 3. A deed located on the plot?, and not 
 counterlocated by the opposite party, 
 may be read in evidence by the party 
 locating it, to show how it is located; 
 but when its validity comes in ques- 
 tion, if it is had, it is to have no 
 effect, lluiiinwnd el al. Lessee v Acr- 
 m, loO 
 
 4. A deed for a certain number of acres, 
 part of u tract of land, without metes 
 or bounds, but referring 1 to another 
 deed, (not produced,) to ascertain 
 Ihc same, is not legal evidence to 
 F!IOW title, or to support the location 
 thereof on the plots, without pro- 
 ducing the deed to which it refers. 
 
 lb. 142 
 
 5. Where there is but one location of 
 the beginning of a tract of land on 
 the plots, and that is counterlocatcd, 
 the jury cannot, by reversing lines, 
 &c. ascertain a different beginning 
 for the plaintiff than that located hy 
 him. lb. 148 
 
 6. The plaintifiTin ejectment must make 
 such locations on the plots of the 
 land claimed, as will suit his case. 
 
 Jb. 
 
 7. The jury cannot find a location of 
 their own, but if they find for the 
 plaintiff they must find some one of 
 the plaintiff's locutions on the plots. 
 
 lb. 
 
 8. Where the first and second courses 
 of ah original grant of a tract of land 
 called JJ F, are described as ".begin- 
 ning- at a bounded locust tree, being 
 the N E hounded tree of P U's land, 
 [called tfC,] and running by the land 
 of the said P, & 65 ps. to, u hounded 
 oak, then N E 150 ps. to a hounded 
 red oak on the said P's land;" and 
 the first and second courses of an es- 
 cheat grant of the same land called 
 D /', are professed to be run in the 
 same manner //<;/;/, that there is no. 
 doubt or am!>ig-m< y, and uiat if the 
 beginning of 1) T\A rightly located 
 on the plots at the termination of the 
 12th line of U (', and there is no evi- 
 dence of the existence of any tree as 
 called for at the termination of the 
 tot line of D F, then tiic expressions 
 
 in the escheat grant hind that grant 
 to the true location of the original 
 tract called J) F, as to the 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 13th and 14th lines of 
 UC. Sec On A XT, 30, and 
 Jl(>u:ard v Mouk, et al. Lessee, 26.3 
 
 9. Where the plaintiff has not located 
 his escheat grant on the plots co-ex- 
 tensive with the location of the origi- 
 nal 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 whatever point 
 the same may be, agreeably t> his lo- 
 cation of his pretensions, and the lo- 
 cation' by which the defendant haa 
 taken defence. lb. 26G 
 
 10. The plaintiff cannot give any evi- 
 dence of the lines of his escheat grant 
 running otherwise than he has located 
 them on the plots as his pretensions; 
 but lie 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^ 
 
 lb. -267 
 
 11. The court directed the jury, that they 
 might find the true location of D P t 
 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 lo- 
 cation 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. lb. 27* 
 
 12. The court directed the jury, that 
 the plaintiff could not recover any 
 land which should be found to lie 
 without a straight line to be drawn 
 from tlie letter P"to the head of How- 
 ard's branch, (he having located that 
 line of his grant in that manner,) altho' 
 those lands sh.ou.ld lie within the lines 
 of the tract of land for which the e- 
 jectmi-nt was brought, and also with- 
 in the lines of the plaintiff's preten- 
 sions as located oatlie plots. Jb. 275
 
 030 
 
 INDEX. 
 
 13. The coort refused to direct the ju- 
 ry, that it'the plaintitt .1 fmm 
 Mio\\iri the true !oc:.tion ol th- l:tiul, 
 for which tlu- i jecUiu nt is brought, 
 
 -cut fiom \ -'i-d b\ h;'ii 
 
 for liis fir. . so as to p; 
 
 linn from recovering what :s contain- 
 ed in |,is ; - within the true 
 
 ion, the defendant is alsu 
 pul from saying that the true location 
 iid.lfcn.-nt fioin the location given by 
 tin- plaintiff. H-. 
 
 14. Where a dec<l for part of a tract of 
 hud has not been particularly located 
 Oil the plots, it may be read in evi- 
 dence if the whole tract of hmi is n- 
 nitcd in the same person, and the 
 vholi -has been located. JiullvGit- 
 lin^s'a Lessee, 383 
 
 15. 1 tie declarations of a deceased per- 
 son, then .ei/ed ot a particular tr:>ct 
 of land, not located on ihe plots, were 
 offered in evidence by the defendant, 
 in an action of eject incut, to prove the 
 end of the hr.-t line of that tract, 
 which was the beginning of the land 
 claimed and located on the plots by 
 the defendant //(./</, that the decla- 
 rations wtJe not udmin&ible in evi- 
 
 .^c. 76.393 
 
 16. In trespass q. c. f. the defendant 
 took defence for, and located on the 
 plots, a Unct of land called fl (\ 
 vhich included a tract culled T N, on 
 vhich the trespass was alleged to 
 have been committed, and whicli hut 
 tract the plaimiti located on the plots; 
 Jtnd he also locutcd lot N<>. 3.351, but 
 he did not coiuucrlocate the location 
 niafie 1-y the defendant. The defen- 
 dant read in evidence tlu- I;T uit '.f 
 d ' , which called tobe^in at the end 
 of the second line of lot No. 3351. 
 
 ', that it was not necessary for 
 
 him to produce the ^rant of lot No. 
 
 :, to prove the location of that 
 
 lot, and the beginning of 6f C. 'J'm/t- 
 
 i l ]{>Zt.r, -141 
 
 17. 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 *nd 
 
 boundary. IL.iuvwud d ol. Lu>sce v 
 
 Xorris, 149 
 
 See Evidence 54, 64. 
 
 Grant 33, 34, 35, 36, 37, 39. 
 
 V umtion. 
 
 Vtrdirt 1, 2, 3, 4, 5. 
 
 !> 1'KOI'KIETAKY. 
 See Propricury. 
 
 F DKED. 
 
 See Evident 71, 
 
 M. 
 
 MAM >'. 
 
 1. PHT' ' .-milted to 
 
 tl.ul :i dei'd >} r:>i>niin^>ii)ii was at- 
 
 i in the ; F Hr v u- 
 
 1 the 
 
 saiiK 1T6 
 
 2. A deed of nianun.i.sMon m.ler the 
 
 art ..' '< <l ill 
 
 the p: i . in ' 't' only <n 
 will to ^i\e irredom to 
 
 the slaves tin nil) n Jb. 
 
 3. A pnrol salt- ot'x .sl:\ 
 
 and then to be sit free and iiMiiunm- 
 ted by the vendee, \vho, on tl 
 pirutton of the - 
 
 a deed of nunuiBUaaion II- Id, that it 
 ullieient t(> ur:..iii fi< ili'in to the 
 slave. A'^ro ( 
 
 MAKKKT OVFKT. 
 
 J. The pu;-' : ;jiibl'C 
 
 mark -iicd l>y law for the 
 
 sale of horses, kr. dn-s not 
 the purchusir 10 lui'ui tl, 
 
 '. the claim ot the true < 
 
 ^ill, 308 
 
 2. There is no //<;./ ktt-^nd in tl.^ 
 
 lij. 
 
 MARRIAGt:. 
 Set Evidence 56. 
 
 MKMOUANDUMS. 
 See Evidence y. 
 
 METLS AND BOUNDS. 
 See Grant 37- 
 
 MISDEMEANOR. 
 1. Fel'nii/ I'.r.-l 
 
 joined in the same indictr. 
 c T/iC Mutr, 
 
 MISTAKK. 
 See Court of Chancery 46. 
 
 
 
 Ml III. V liON 01 I.AMAGCS. 
 See Covenant I. 
 
 MIXED POSSESSION. 
 Possession 1. 
 
 MO! 
 
 ). Parol evident 
 a dcLit atcaicd (>) montage wae con-
 
 INDEX. 
 
 537 
 
 tinental money, allhough expressed 
 to be a specie debt. Wtiftkington v 
 
 JiictiM-U, 58 
 
 2. It there is a mortgage, with a perso- 
 nal covenant by the mortgagor that 
 hr will pay the money, and he assigns 
 his equity of redemption, is he a 
 competent, witness for the assignee to 
 pi-ox e that the money loaned was 
 continent*] monev ? (^uere. Hi. 
 
 3. 'I lie assignee of a mortgage is enti- 
 tled to the sumc relief which the 
 mortgagor xvould have been entitled 
 to against the mortgagee. lb. 
 
 4. Vv here certain facts would not war- 
 rant the presuming- a mortgage made 
 in 1706 xvas satished before 178^', the 
 mortgagee being 1 a Eritiiih. subject, 
 and although he was never in posses- 
 sion of the mortgaged premises the 
 party not showing- uny tiile under the 
 mortgagor. Owings v Norwood's J.t*- 
 gee t 96 
 
 ,5. Where lands were mortgaged to a 
 lifitixh subject, on failure of payment 
 of the mortgaged money, a complete 
 legal estate vested in the mortgagee, 
 liable to confiscation, SMK! was vested 
 in the state under the acts of confiscati- 
 on, subject to the right of redemption. 
 The British treaty cannot operate on 
 such a case. Ib. 
 
 6. A deed, purporting to be absolute, 
 for the conveyance of land and perso- 
 nal property, was held, as intended, 
 to secure a debt, and the party per- 
 mitted to redeem, &.c. See COLBT OF 
 t. IIA.VCKHY 2',', and 
 
 Broaden v Waffteft Ex'r. fc?c. _ 285 
 
 7. A mortgage of lands to a British sub- 
 ject before the revolution, wi.s not 
 thereafter defeated by the act of con- 
 fiscation, but it wus protected by the 
 Uritixh treaty, and dicrecd to be sold 
 to pay the mortgage debt, tfouoord 
 v Mo'ak tt al. Lcusee. 25$, 259, 
 
 fnotcs.J 
 
 8. If a mortgage of slaves xvas subsid- 
 ing, and the mortgagor, claiming the 
 absolute ownership of them, sold 
 them fora full consideration, although 
 as to the mortgagee the sale would 
 transfer only the equitable interest in 
 the slaves, yet as between the vendor 
 and vendee, the operation of the con- 
 tract would be to pass the absolute 
 ownership in the slaves to the vendee; 
 &. notwithstanding the after discharge 
 of the vendor under an insolvent law, 
 and his purchase of the slaves from 
 the mortgagee, his subsequent acts in 
 perfecting 1 his title to the slaves, will 
 enure lu law to confirm, and nut 10 
 
 defeat his contract with the 
 J'i/t-n/1 GaXKttVftl/i 411 
 
 & Application of Payments !, 2. 
 
 - Court of Chancery o, 20. 
 
 J-:jectn<eni 
 
 Jvjtatc Tail 5. 
 
 MUTUAL COVENANTS, 
 
 See Covenant 3, 4. 
 
 N. 
 
 NATURAL GUARDIAN. 
 
 1. \Vhcre a mother, as tlie natvralgWtr- 
 dian of her infant cliihlreii, who were 
 under the age of 1 1 yi.are, hired u 
 slave, belonging to them, u> a :>ta cap- 
 tain, to pcrionn a voyage, on wage?, 
 the slave to be returned, SwC. and Unr 
 vessel being sold by her owners at 
 the port to Which she sailed, the. slave 
 was put by the captain on board ut 
 another vessel hound home, and fur- 
 nished with provisions for the voyage, 
 but never returned home, in an ac- 
 tion of froi-fr by the children, prose- 
 cuting by their pruc.hiin uwy, against 
 the captain, for the value of the slave 
 Held, that the action was veil 
 brought. Hay ct al v C-wn-r, ;]*/ 
 
 NO ASSETS. 
 
 See Pleading 1, 3, 4, o. 
 
 NOMINAL PLAINTIFF. 
 
 Sec Judgment 2. 
 
 NON EST PACTUM. 
 
 1. A executed a bond to H, and deli- 
 vered it to C, to be delivered to B 
 Held, not to be the act and deed of 
 A, it not having been received by li. 
 Owing* v Aw uiovd'n Lessee, lOtf 
 
 NON RESIDENT. 
 See Ackno\\ Icdgment i>t Deeds 3, 4. 
 
 NOTARY PUBLIC. 
 
 1. The minutes of the proceedings of a 
 notary j)ul>hc of a iori ign covtntn, 
 are to be consult re -d as lecoms, un- 
 der the cnrtesy of nations; and a co- 
 py, under the hi;d and notarial se:vl 
 of a notary, is sufficient evidence of 
 the protest of a foreign bill of ex- 
 change. Jirydcn v Taylor, 3i*9 
 
 Ste Authentication 1. 
 
 NOTICE. 
 
 1. In executing a commission issued to 
 a foreign country for the purpose of 
 , notice is nut nctcs-
 
 53 
 
 IN Hi 
 
 . but time should be pivcn that 
 
 : ty infill i. 
 
 trri' - - u'tWa 
 
 Luxe, 9 
 
 ^arrant of resurvey taken out by 
 
 a p. , M-izefl of the orijpn.il 
 
 . .il notice of the loeati- 
 
 on .it tin wunuu. liuiniiHtnd ft ul. 
 
 Ltif 
 
 'iiid <ttil. Jstfset r H'urfrlJ, 151 
 .1. \\hrre\acant land, not contiguous 
 to the original tract rcsurveycd, i> in- 
 rltidcd in a certificate "t I--MU 
 i> not k-tf.il notice of the locution of 
 the warrant, until the certificate is 
 rcturm <1 to the land-oflice. 
 niotu/ t! i- /(/, 1M 
 
 4. It not appearing In tin. return of the 
 commissioners to u commission 
 oil to Pcnnsylt </, to take testimony, 
 that they had given any notice, or 
 tu:.t proper notice h:wl been given, 
 the testimony taken thereunder was 
 rot permitted to be read in evidence. 
 was it evidence, altlio' oH'ered 
 by the o;.'p.'!>ite party. Ji 
 
 '//, 45 y, 4oU 
 
 Set Court i 45. 
 
 Designation 1. 
 
 - Equitable Kstate 1. 
 
 Warranty. 
 
 0. 
 
 OFFFCF. COPY. 
 Set Evident 
 
 OFFICK FOUND. 
 
 1 Lane's esch<-:itd to the state vests 
 without oj/ic r fi-<t(j or an actual cntiy. 
 Hall t Gtttin^s Jr's. 1. l^ 
 
 Set Confiscation i, 4, 5, 0. 
 
 OFFICIAL ACTS. 
 
 J. The < h-;k of a cunt li;i-> MO itttthori- 
 ty by law to ra-fify <i fad under s' :-!. 
 -int is to grant exemplification* 
 /' ..u>ri* t lol 
 
 y, I?. 
 
 ORPHANS COURT. 
 See Executors & AdministratoH. 
 
 ONUS I'KOliANDI. 
 See Court of Chancery 4l ; . 
 
 - J'leatliv 
 
 - Flcne Administravit I. 
 
 OPERATION OF DEEDS. 
 See Grant*, II, I*, 5, :i. 
 
 ORDINANCE. 
 Stt Repeal 1. 
 
 ORIGINAL, 
 
 Evidence *', -, '->. 
 
 o\ I;K>* 
 1. An overseer cannot rHmn a p 
 
 the crop madr on : pjantation - hn 
 
 aliare, un.ler an u^ri i-;n n w itli In. 
 
 fiii])l'jyer that !. 
 
 j,.,rt ot Hi-.- i-rcp in ad ( . 
 
 TKOVCR 2, ar.d 
 
 H trnw f Mutitiigl, 365 
 
 OYKK Sc TKKV.INER, ?cc. 
 See Court of Over J* 'i ci miner, ^c 
 
 P. 
 
 PARISH 
 
 &X Evidence 46, 5G. 
 
 PAHOL A(.HF.KMKNT. 
 1. A parol contract bctweti; a fa 
 law ami son-in-law, that tlio former 
 would give a real estate t, 
 son, in consider ui'in oi' th.- v n-.u-lavv 
 pa\ing- one half of : '!' tlie 
 
 land No; 
 sion was helil by the son-Nt l.i 
 
 ]):.i'l of the pun -ii^sc IIIUIKV p.iid. 
 
 n'iitipu't v Duil, 76 
 
 "2. VV 1) becoming an insolvent <i 
 his real estate \vas sold l)y his !: 
 and purchased by C 1), to wh..m \\ 
 deed was executed. C D, in making 
 the purchase, :-.t ted pn-fcsiedly as a 
 triei.d to \\ 1), so K.r that if lie could 
 procure the purchase money within a 
 reriain time, he was to have the be- 
 nefit of the purchase; but as he could 
 not raise the money, it In . 
 to sell a pall of the j 
 reimburse C 1) which p:-:t U l, 
 and M his wife, vvt-iv 
 serve to thcmsehes, ami were anxious 
 to procure a friend to become the 
 fiuicha-i-r for and on belmlf of M the 
 wiff, and as a trustee for her. WhicU 
 intention was, jjrcvious to th-.- 
 made known to \\ \\ , who approvv<l, 
 nd it was agreed tl^t .1 :-, i \. !io con- 
 vntcd,) should be '.. 1 pur- 
 
 chaser, and U \\ wus ;o bf-ci 
 surety for tl.e payment of tli- 
 
 -\ . .1 ^ In <. ime the pur- 
 i it was known and under- 
 stood at the time, that he put. 
 for M, the wile of \V U. In the bond 
 for the purchav 
 Mir.-u 1'ii'J S, j'.ml ; 
 pru | been in ^V 13, 
 
 who jirocurinir ..- purchase 
 
 nioiu-y, ap;)li-'! " ){ \\ tC ''ain a 
 bond of conve\ancc from C' I" 
 the wife, for the property, w !.
 
 INDEX. 
 
 539 
 
 V us informed by R W that he had got 
 a bond to himself, as J S ha.il given it 
 all up to him, and that W 1) had no- 
 thing 1 to do with it. J S had been in- 
 duc.ed, in order to secure it \V, to di- 
 rect C D to give a bond of convey- 
 ance to II W, who assured J S that 
 no advantage should be taken of \V 
 I), and that when he paid the pur- 
 chase money, a deed should be exe- 
 cuted to his wife M. The premises 
 were conveyed by C D to 11 W, who 
 brought an ejectment against W D. 
 The amount of principal and interest 
 of the purchase money was tendered 
 by W L) to II VV, and a deed detmnd- 
 ed, which he refused. \V D, and M 
 his wife, filed their bill against R VV, 
 to be quieted in their possession of 
 the premises, and to compel a con- 
 veyance from him to M the wife 
 Ikcrccd, thut It \V convey the land in 
 question to W D, a;iu M his wife, in 
 fee simple, and that an account be 
 stated, &c. and the balance due be 
 paid at the time H VV shall convey 
 the land. Davis et ux. v Walsh, ^29 
 Stf. Contract 3. 
 
 - Covenant 1. 
 
 Warranty. 
 
 PAKOL EVIDENCE. 
 J . Farol evidence admitted to prove 
 that the land granted to the husband 
 of the demandant, is the same land 
 of which dower is demanded. Ksefer 
 v Young, 53 
 
 2. Parol evidence admitted to prove, 
 that a debt secured by a mortgage 
 \vas continental money, although ex- 
 pressed to be a specie debt. jf'orth- 
 ingion v Bicknell> 53 
 
 3. Pavol evidence is not admissible to 
 prove that a tract of land, mentioned 
 in a certificate of survey, never was 
 actually surveyed by the surveyor, 
 &c. Hainiuofid ct al. Lessee v jVw-m, 
 
 132 
 
 4. Parol evidence admitted, with 1lie 
 consent of the parties, to prove the 
 
 , usage and practice, of the land 
 ' 
 
 5. Parol evidence is not admissible to 
 prove the rules, usages and practices, 
 of the land office. Hammond et ul. 
 Left.iec v Warfitld, 161 
 
 6. Parol evidence not admitted to prove 
 that a de.-d of manumission was at- 
 tested iu the presence of two wit- 
 nesses. Nfgi-o James v Gaither, 176 
 
 7. Parol evidence admitted to prove the 
 manner in which wills are made anil 
 proved in France* D& Sobry v Ter- 
 rier, 191 
 
 8. A surveyor's original books, and his 
 parol testimony, admitted by the ge- 
 neral court as competent and admis- 
 sible evidence, to prove that a certi- 
 ficate of survey returned to the land 
 office was forged. Borelng's Legatee 
 v tilngery, 45J 
 
 9. The court refused to direct the jury 
 that it was 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 oflic.ft 
 as a foundation for the grant, \;---, 
 forged or fraudulent; and not made 
 out by him, or his authority. /A. 458 
 
 10. There being no designation of part 
 of a tract of land contracted by a 
 bond of conveyance to be conveyed, 
 nor any description whereby it can 
 be id'-ntihVd, parol evidence is not 
 admissible to show that it was intend- 
 ed by the parties to he laid oil' in a 
 particular manner; and the bond is 
 void tor uncertainty, except on the 
 principle of election. Huntt & Park* 
 r (}>*t ct al. 49S 
 
 See Covenant 1. 
 
 Fieri Facias 2. 
 
 PARTIES & PRIVIES. 
 See Ejectment 24. 
 
 Evidence 28, 78. 
 
 PARTNERS AND PARTNERSHIP. 
 
 1. Where a person was frequently st-eii 
 in the counting-house of the plain- 
 tiff, transacting business as a princi- 
 pal, and was generally supposed, be- 
 lieved and understood, in the town, 
 to be a partner in the plaintiff's house, 
 it is not sufficient evidence to prove 
 that such person was a partner of the 
 house of the plaintiff. Dry den v 
 Taylor, 400 
 
 2. A bond given by one partner for a 
 simple contract debt due from the 
 partners to a creditor, and accepted 
 by him, is by operation of hw a re- 
 lease of the other partner, arul an ex- 
 tinction of the simple contract debt, 
 at law and in equity. William v 
 Ifody?on t 474 
 
 3. Ignorance of the law, as to the con- 
 sequences resulting from a creditor 
 having accepted the bond of one of 
 the partners for a simple contract 
 debt due from the partnership, can- 
 not excuse or form a ground for re- 
 lief in equity. //,. 
 
 4. Such a bond, altho' not bind- 
 ing' oatlip partner who did not exc-
 
 JXIHA. 
 
 
 
 1'ATl 
 
 ! \v\jr\T. 
 See Application of Payments 1,2. 
 
 &e Evidence 56. 
 
 PKKFOKMAVCE. 
 
 M-t. 
 
 'ant ", 4. 
 
 - Specific Performance. 
 
 PBfePBTUrtT. 
 
 See Executory Devise I. 
 
 PKKSOXM. I-^TATE. 
 
 ' property a'' hen-; to the 
 ji-rsini: an 1 wherever tl: 
 
 -cil at the tiiiu- of his death, the 
 rf>p'-rlv isto'i- I'-': IVi'. ,! accord- 
 it>_- -> th<- ] of that country 
 
 pi.uvni-F. 
 
 $rr (VsM? Q H- Use 1. 
 
 PI.K M)IXG. 
 
 1 Wlx-ther or n !:r 
 
 T'r>;n t'ic pl'-a of per- 
 .nccili :tn :ir>i-)'i ->n a tfiUmellt:i- 
 
 iv . I v Blade '.i 
 
 8 
 
 !>v his rci 
 
 ;i i-ssiic tvi . ui.l 'list'mrt 
 
 to :i replir .'m^ I) reach - 
 
 .nd' QiUff. 
 11.. 
 
 ?. On t'lo plea of nn a*>"-h or /)'''i a</- 
 .://' lies on 
 ftlic pl:ii:tirt'. .'/, 
 
 2SI 
 
 - i mo in 
 V- pLa o, "/'(.!. u-l-n' 
 
 //. 
 5- Th 
 
 am! a surrt-j-iindor thereto 
 
 38 
 
 !iat an 
 ire h 
 
 "i the 
 TiSle 
 
 !.y t , of it on UU 
 
 pK-u of tfener.t! pcr'"ori)-mcc. -. 
 
 ! lii-< ri-joindcr to 
 the rcj)!ic:tiou of tin- pl:i:. 
 
 ; !ic breach. '.' v I1\t 
 
 11 
 
 ..rnt on a {jmorul ver- 
 dict in a--v .'. />*'' w. : , he- 
 
 co'iiH in '' 
 
 cl:X". . 186 
 
 "ii [. 
 
 Plfiur Ailininistruvit 1. 
 
 Preference 3. 
 
 PU:NF. ADMIMSTHAVIT. 
 
 1. On th i'Mi" _;->i:i>-.i to a |jlca of plrnr 
 '.i!<-lrtir!f t tin- pl.iiniiit' di.'l iiot 
 oll'i-r < v ill- -nrt- \vhiclv 
 
 h.iil .-'.nif to the han-K i" 
 <l.iiit -, t'.sat it 
 
 \v fs neci wan for the plaintiff to show 
 th.it a-isets h;ul co'ne to the h.<; 
 the executors; and that the plea \v:<s 
 notjna Imissiou of <,-< N <<> tli.-.uiioiiiit 
 f)f i!ie pi.iintiti .'ihovijfh the 
 
 'ili.'-s iliil in>t ;)r<\f the contrary 
 by the pi 
 
 r evidence 
 
 I ux. 281 
 
 See Pleadings 1, 3, 4. 
 
 PLOTS. 
 
 1. A private plot ot'tlu- lan.ls in dispute. 
 p-niiitte:l, ntrtcr certain ciro.nn- 
 st.inrcs, to be read in evidence 
 aril i- Mj'tif, ct til. 1. 26S 
 
 &< Location of Lunds. 
 
 Ilecord 1. 
 
 POSSESSION. 
 
 1. Where two p in mixed 
 
 NMOII oi' th I, the OIK: 
 
 by right, and thi-. other by wron^, i 
 is tli ,i of him who is in by 
 
 ri^'ht. Ifnll r I' 
 1 . H7 
 
 
 
 of rijfht, and a ' 
 cannot be de;j.'ived o!" !i;> 
 
 
 
 of tlie land tint is he who h.ith tin: 
 jm iMHSCiiaioiiia. Hall v Giltin^v, Jr.* 
 
 i out of possession for 
 than is not 
 
 .-y possession in virtue of 
 right or by actual c ncl ' 
 h'n hci:', or p. under 
 
 liiin, tnav briivv 
 anci'i:d '-:i l rv into the land 
 
 i with- 
 
 -iry to the 
 
 ex:- . ul eticloi'if9. lb.
 
 INDEX. 
 
 561 
 
 5. Where the facts offered in evidence 
 by the plaintiff* were not sufficient 
 and legal evidence to Warrant the 
 jury m iinding,th:it a person, under 
 whom the plaintiff chimed, died seiz- 
 ed of the bud for which the eject- 
 ment was brought, in opposition to 
 60 years possession of the defendant 
 the strongest presumption of a good 
 title being in favour of the defendant. 
 JDovis'g LtKxee v Davis' s Heirs, 295 
 
 C. A parol sale may be mnde of a slave 
 for a term of years, and then manu- 
 mitted by the vendee, under an agree- 
 ment between the vendor and vendee. 
 Aegra Cato v Howard, 323 
 
 7. If the possession of land has gone 
 agreeably to un ancient deed which 
 needed no enrolment, the inspcximus 
 of the deed may be read in evidence, 
 and is effectual to pass the land. Hall 
 v G lit ings' s Lessee, 380 
 
 8. Where the defendant in an action of 
 ejectment was in possession of 1UO 
 acres of land, by enclosures and cul- 
 tivation, for Id years, and then en- 
 larged his enclosures so as to include 
 150 acres, and he possessed the same, 
 so enlarged by enclosures, for 6 years 
 thereafter, claiming the same as his 
 own Held, that he had title to the 
 100 acres by adversary possession. Ib. 
 
 391 
 See Dill of Sale 1. 
 
 Confiscation 2. 
 
 Ejectment 2, 3, 4, 5, 6^ 38. 
 
 Equitable Estate 1, 2. 
 
 Escheat 9. 
 
 Limitation of Actions 2, 3, 6, 10. 
 Trespass 1, 3, 5. 
 
 PRACTICE. 
 
 1. In executing a commission issued to 
 a foreign country, for the purpose of 
 taking testimony, notice is not neces- 
 sary, but time should be given that 
 the opposite party may exhibit cross 
 interrogatories. Oiaings v Norwood's 
 Lessee, 98 
 
 2. If the plaintiffin an action of afxiimp- 
 sit files an account in court contain- 
 ing the items of his claim against the 
 defendant, he is precluded from going 
 into evidence to establish his claim in 
 * manner different from that in which 
 he has elected by his account to con- 
 sider the defendant his debtor. JJe 
 fiobryv Ikrrier, 222 
 
 3. Testimony taken in a former suit in 
 chancery between the same parties 
 for the same relief, where the suit had 
 been dismissed by the complaiimnt, 
 may be read in evidence by the de- 
 fendant on the hoaring of the new 
 
 \--9L. n. 71 
 
 suit. Per Hanson, Chan. Hopkintv 
 Stump etal. 30 1 
 
 Sec Abatement 2. 
 
 Answer in Chancery 2, 3. 
 
 Uill of Exceptions 2. 
 
 Bill of Review. 
 
 Commission & Commisiioncrs 2, Si 
 
 Discount 5. 
 
 Injunction 1. 
 
 Location of Lands 1, 3, 5, 14. 
 
 PREAMBLE. 
 
 See Acts of Assembly 4. 
 
 PRECEDENT COVENANT. 
 
 See Covenant 3, 4, 8. 
 
 PREFERENCE. 
 
 1. S B sold and transferred to E S, 80 
 shares of bank stock, and took his 
 notes therefor. Two days thereafter 
 K S became insolvent, and transferred 
 all his property to trustees for the be- 
 nefit of his creditors. The trustees 
 sold the slock, and received the pro- 
 ceeds. On a bill filed by S B against 
 E S, and the trustees, claiming to be 
 paid the amount of the notes out of 
 the proceeds of the sales of the stock, 
 in preference to the other creditors, 
 it seems that he was not entitled to 
 such preference. Winchester et al. v 
 Sronke, 1. 
 
 2. Where a preference is claimed by 
 one of the creditors, it should ap- 
 pear by the proceedings, that there 
 were other creditors whose claims are 
 proved and allowed; also the amount 
 of the estate and claims should ap- 
 Dear, so as to show the proportion 
 which the creditor, claiming the pre- 
 ference, is entitled to, in case be had 
 no right to a preference. Ibid. 
 
 3. If the laws of this state give a pre- 
 ference to its citi/cns in the payment 
 of the debts of a deceased, the de- 
 fendant, if sued by a foreign creditor, 
 must plead such preference. Be 
 Sobrif v Ti-rritr, 224 
 
 Sec Court of Chancery 24. 
 
 Executors & Administrators 5, 6. 
 
 PREROGATIVE. 
 
 See Proprietary. 
 
 PRESUMPTION. 
 
 1. Unless the contrary is proved, it is 
 presumptive evidence that a clerk, 
 who is dead, and who made certaia 
 entries on the books of his employer, 
 delivered the goods as charged, Clarice. 
 v Mtgruder, ct al. 77 
 
 2. Where certain facts would not war- 
 rant the .presuming a mprtgage, made
 
 ofrs 
 
 INDEX, 
 
 in 1706, was satisfied bvfore 17RO, 
 the mortgagee being a British sub- 
 ject, ami as iu % vcr in 
 
 possession of UK- mor gaged premises 
 the party n< ' y title un- 
 
 der the mortgagor. Uu-itig 
 
 V.-(X>fft I.' 
 
 3. Where the court would not direct 
 the jury to presume a tiUe had iv-en 
 perfected, conveyances living been 
 produced showing a defective title 
 had been transferred. Ib. 
 
 4. The jury were directed, that from 
 the length of tiir.e elapsed since the 
 making a will, they ought to presume 
 that it hud been duly executed and 
 proved. Hull r (sittings Jt'?. Lessee, 
 
 131 
 
 5. Possession is presumptive evidence 
 of right, and a defendant in ejectment 
 cannot be deprived of his pos 
 
 by any person ljut the rightful owner 
 of the land; that is, he who hath the 
 jus ponteatimua. /. 1 22 
 
 6. An escheat grant is prima facie evi- 
 dence of title, but being a prc-suni]>- 
 
 of right, i only exists until the 
 contrary i.s pro Ib. 
 
 7. The jury were directed, that if they 
 believed certain facts, then the pre- 
 sumption of law was, that a certain 
 person was seized of the land, for 
 which -the ejectment was brought, at 
 the time of his will and death, and 
 no presumption from the said tacts 
 could arise tlut he w;w not to seized. 
 
 Ib. 126 
 
 te Contract?. 
 - Ejectment 38. 
 . - K vide nee 49, 71. 
 
 Possession 5. 
 
 PRETEH 
 
 See Location of Lands 1<J, 11, 12, IK 
 - Verdict 4. 
 
 PRIM\ I ' veil: EVIDENXT 
 See Evidence 15, 65. 
 
 Justices of the Peace. 
 
 PRINCIPAL. 
 See Court of Chancery 15. 
 
 PRIORITY, 
 8e Preference. 
 
 ? court of appeal* roncurred in 
 tlie cpiuion expressed by the cour* 
 brl.> ' '.it re- 
 
 .' the jnd.cn. -iit cii tin J 
 :-, :tnd Hwardi d H prvc 
 Buckunun r (iortvii, 
 
 1. The court of appeals having rrvtrstd 
 
 judgment of the court belo-.v on thy 
 
 forn, >.t' proceedings, (there heing a 
 
 ina'ernl variance !t.:-.v.-i-n tlic wr'.t 
 
 deration, ) 
 
 i with a proccdendo. I 
 v /.'".. ^t, <4 al. 345 
 
 PIIOCLAMAT10N WARRANT. 
 See Grant 4 1 . 
 
 PROFITS. 
 
 See Guardian 1. 
 
 PROMIiH. 
 See nuaanty 1. 
 
 PROMISSORY NOTE. 
 
 1. An action of <!.<.<, nttfjxi,' <>n a ptotris- 
 sory note tndortcd in bltmk by the 
 payee, may he maintained in the name 
 of the payee for the use of the hold- 
 er, altho' the holder had paid a valu- 
 able consideration for the note to the 
 payee at the time of the endc'i-scmi-nt 
 
 y nitldlr,\ JJW-/i. 
 
 2. A; 'tv is not invalidated 
 by being anftd Ibid- 
 
 See Bill of I'-xchrmjye . 
 - Notary Public 1. 
 
 PROPRIETARY. 
 
 1. On the question whether or not a 
 grant of land from the Proprietary 4o 
 
 "K M, and the heirs of his boi:> 
 fully begotten, for cvir," 
 estate tail in K M, and upon his death. 
 without issue, the reversion was in tin: 
 state standing in the place ot the pro- 
 prietary, notwithstanding R M's deed 
 barring the estate tail, Held, that no 
 interest in the nature of a lrn->( 
 ever w:is M--.U d either in the Propric- 
 t ny, or in the state in the place ot tlu- 
 Proprie.turv, i>:> act having been dona 
 which coidd ereah.- a trust in either, 
 and that they could only be 
 tiered as parties having a reversion:iry 
 interest expectant on the determina- 
 tion of the estate tail. Howard, t 
 Mal,; it id. I. "59 
 
 2. 'I'liKJura regalia, as attached to the 
 person of the King in England, 
 
 did attach to the Lord Proprietary 
 liind. Ib. 
 
 ;1 T])e. Proprietary held the domim'oii 
 of Maryland :ut<l property of the <oil, 
 which he could sell and tiUpo>e of \:i 
 the s:tinc manner as any other person, 
 and 
 
 leg*! ^, as in tlie 
 
 hands of any other j. Ib. 
 
 4. (m an eqiu!..u!i' ir.tt -rvst hcingob- 
 .jlv to t!io
 
 INDEX. 
 
 03 
 
 of the land-office, the party became 
 entitled to a grant, which' he could 
 compel of the Proprieiarv. Ib. 
 
 5- Th? reversionary interes't of the Pro- 
 prietary reserved in land granted by 
 Lim, might be destroyed by deed 
 mude by the tenant in tail ui.'der the 
 act of June 1773, c/t 1, as cffVetnally 
 as the reversionary right of any indi- 
 vidual. ]ij 
 
 6. A subsequent grant covering land 
 in which the Proprietary had u'rever- 
 sionury interest, will operate to pass 
 such reversionary interest. 2b. 
 
 See Instructions 1. 
 
 Limitation of Actions 3, 5. 
 
 State 1. 
 
 PROTEST. 
 See Notary Public 1 . 
 
 PURCHASE & PURCHASER. 
 She Market Overt 1, 2. 
 
 Warranty. 
 
 Vendor &, Vendee 1. 
 
 R. 
 
 RECEIPT. 
 
 1. A receipt given hy the plaintiff's at- 
 torney fora sum of money, stated to 
 be in fall of a judgment, is not conclu- 
 sive evidence that the judgment is sa- 
 tisfied, so fur as to prevent the plain- 
 tiff from taking out execution for any 
 balance which may be actually due 
 thereon, lluglai v (fDonnell, 324 
 
 RECITAL. 
 
 1. The court will not so construe the 
 recital in a bond as to defeat its ope- 
 ration and render it a nullity. 
 M'Mechenv Th,e May or t &e. 41 
 
 See Evidence 24, 25. 
 
 RECORD. 
 1 . A warrant of attorney, authorising an 
 
 attorney to appear for the defendant, 
 need not be spread on the record. 
 
 See Issues 1 . 
 
 REJOINDER. 
 
 m* The jfayur, &c, 
 Ste Authentication 2. ' 
 
 Dill of Exceptions 1. 
 
 Court of Appeals 1. 
 
 Evidence 9, 58, 77, 78, 
 
 Judgment ]. 
 
 Notary Public 1. 
 
 RECORD EVIDENCE. 
 See Evidence 9, 58. 
 
 REDEMPTION 1 , 
 Sft Equity of Redemption. 
 
 RELATION. 
 
 See Escheat 4, 1 1. 
 
 Grant 5, 10, 16, 18, 20, 21, 22, 29, 
 
 37, 41. 
 
 RELEASE. 
 
 J. A bond given by one partner for a 
 simple contract debt due from the 
 partners to a creditor, and accepted 
 by him, is by operation of law a re- 
 lease of the other partner, and an ex- 
 tinction of the simple contract debt, 
 at law and in equity. Williams v 
 ffodgRon . 474 
 
 6Vt Evidence 10. 
 
 Ignorance 1. 
 
 Insolvent Debtor. , 
 
 RELEVANT. 
 See Slander 2. 
 
 RELIEF. 
 
 1. The relief which may have been ob- 
 tained by a complainant, who has 
 died, may be granted to his represen- 
 tative reviving the suit. Broaden v 
 
 Walker's Ktff. &c. 293 
 
 2. A representative instituting aji origi- 
 nal suit, may have the same relief 
 which would have been granted to his 
 ancestor, devisor, testator, Stc. lit. 
 
 REMEDY. 
 
 1. It is a general principle, which ad- 
 mits of few exceptions, tha| in con- 
 struing 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 the contract is to be con- 
 formable to the laws of the country 
 where the action is instituted. J)e 
 Sobry v Terrier, 288 
 
 2. A contract made in one country 
 with a view to the execution or per- 
 formance of it in another country, i 
 governed in all things, both as to ita 
 essence and the mode of enforcing it, 
 by the law's of the latter country. Ib. 
 220, 288 
 
 Sue French Laws. 
 
 RENT, 
 See Guardian 1. 
 
 REPEAL. 
 
 I, A repealing ordinance cannot destroy 
 cr affect any right wliicb, wa* acquire-.'
 
 504 
 
 INDEX. 
 
 by any prron under tbc first ordi- 
 mnce before the repeal therrof. 
 AMechcn r The Mayor, t*c. 41 
 
 Sit. Acts of Assembly.' 
 
 REPLEVIN. 
 
 1. If tlie declaration in an action of re- 
 f)h vin docs not allege damage to hat e 
 been sustained, it is fatal, f'agd v 
 
 ri: 350 
 
 2. Where the declaration in replevin 
 Alleged the taking of the p -operty to 
 be in Gay-street, from f/it dwelling. 
 house of the paint iff Held, that evi- 
 dence of the defendant's having taken 
 the property in (ruy-fire<.t was suf- 
 ficient, without proving that he took. 
 it from the dwelling-house of the 
 plaintiff. lb. 
 
 3. In an action of replevin, the jury 
 may (five such damages as they think 
 the plaintiff in justly entitled to, a 
 an equivalent for the injury sustained. 
 Dursfij v Cctsatcay, 412 
 
 <Scf Limitation of Actions 10. 
 
 - Pleading 10. 
 
 REPRESENTATIVES. 
 fre Court of Chancery 2^,2.5. 
 
 - Kelief I, 2. 
 
 REPUTATION. 
 Sec Hearsay Evidence 2, 3. 
 
 RESERVED LANDS. 
 
 1. The Proprietary instructions requir- 
 ing a survey to be made of reserved 
 lands, Sec. read in evidence. Sorting's 
 Lfitee v Singery, 456 
 
 RESIDENCE. 
 
 1. A temporary residence in any coun- 
 ty of the state, is not buflicirnt 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. Hull v Gidinif&'s Leuee, 383 
 
 2. A permanent residence is not requir- 
 ed of a person whose deposition is a- 
 botitto be taken under the act of July 
 1779, ch. 8, to perpetuate testimony j 
 but a temporary or transient residence 
 i sufficient, ''he fact of resident i- in 
 not required to be placed on rtcurd. 
 Lrydrn v Taylor, 596 
 
 Bfe Acknowledgment of Deeds 3. 
 Conveyance o. 
 
 See 
 
 RETENTION, 
 
 Str Executors it Administrators '. 
 11. 
 
 RETURN k RETURN DAY. 
 Set Description I. 
 
 Fieri Facias I. 
 
 REVERSAL. 
 
 1. A decree in favour of the complai- 
 nant, but directing that each party 
 bear his otvn costs, was, on the appeal 
 of the defendant, reversed us u> 
 
 and a decree passed directing tliat 
 the complainant should recover his 
 costs in the court of chancery, lioff- 
 nfr v flick *<m, 46 
 
 H'frtliiit:;li:i r Bichidl, 5S 
 
 Huffman r Brkcr, 4S6 
 
 2. Where a judgment of the court be- 
 low, after a general verdict in as- 
 funt]>sit^ \vas reversed, because of a 
 defective count in the declaration. 
 Grant v lt'td*dul', ef ul. 186 
 
 3. The court of appeals having * 
 
 ed a judgment of the court below oit 
 the form of procerdini;-, tin re being 
 a material \uriance bftwetn tlie \\i;t 
 and the declaration, refused to remit 
 the record with a procedendo. 
 : Jl'ihon, et ul. 
 
 4. The court of appeals having concur- 
 red in the opinion expressed by tin- 
 court below in the bill of exception.;, 
 but reversed the judgment on the 
 form of proceedings, awarded a />rr,. 
 cedindo. Smillt <J huchanun v Gir.-- 
 ton, 
 
 See Court of Appeals 3. 
 Covenant 8. 
 
 KFA'ERSINC; LINES 
 Vie Verdict 1, 3. 
 
 REVERSION. 
 See Proprietary 1, 5, 6. 
 
 State 1. 
 
 REVIEW. 
 
 See Bill of Review. 
 
 REVIVOR. 
 
 Ste Bill of Revivor. 
 
 RIGHT OF ACTION. 
 See Fjcc-.inent 19. 
 
 Remedy 1, 2. 
 
 IlHiKT OF ENIl:V 
 See Entry 1. 
 
 RULES OF THE LAND OFFICE.. 
 
 Sit Grant 41. 
 .Land CfT.cc.
 
 INDEX. 
 
 563 
 
 RUNNINGS. 
 
 See Trespass 6. 
 
 S. 
 
 SALE. 
 
 1. A slave may be sold by parol fora 
 term of years, and after which to be 
 manumitted by the vendee. Kegro 
 C-ato v I/vv;aid, 323 
 
 2. If a mortgagor of slaves sells them 
 for a full consideration, and after his 
 discharge under an insolvent law, 
 purchases them of the mortgagee, his 
 subsequent arts in perfecting' his title, 
 will enure in law to confirm, and not 
 to defeat his contract with the ven- 
 dee. f)or.iey v Gassuwuy, 411 
 
 S'ee Freedom i. 
 
 Manumission 3. 
 
 Market Overt. 
 
 Warranty. 
 
 SATISFACTION. 
 
 1. A receipt given fur the plaintiff's at- 
 torney for a sum of money, stated to 
 be in full of a judgment, is not con- 
 clusive evidence that the judgment 
 is satisfied, so far as to prevent the. 
 plaintiff' from taking out execution for 
 any balance which may be actually 
 due thereon. Hughes f O'floraftil, 3~'4 
 
 SCIRE FACIAS. 
 
 1. If the defendant, during the penden- 
 cy of a scire facias on a judgment a- 
 gainst him, aliens his lands, the plain- 
 tiff, after a Jiat on the stire facias, may 
 issue A fieri facias, and levy it on the 
 lands so aliened, without proceeding 
 against the alienees. JUPJMderri/ v 
 Smif/i's Lessee, 72 
 
 '2. A scire facias against terre -tenants is 
 either general, without naming them, 
 Or special against them by name. Jb. 
 
 See Insolvent Debtor 1. 
 
 SEAL. 
 
 1. The mere showing the seal of a 
 court of our own state in another 
 court of the state, is a sufficient au- 
 thenticatioi? of the judgment of i.he 
 court it purports to certify. Dt Solrnj 
 v Terrier, 218 
 
 2. The seal of the court of a foreign 
 country docs not prove itself; but it 
 must he proved by testimony. lb. 
 
 3. Tarol evidence admitted to prove the 
 seal of a court of a foreign country, lb. 
 
 See Bill of Exceptions 1. 
 
 SEISIN. 
 See Ejectment 08. 
 
 Evidence 49. 
 
 Possession 5. 
 
 SEIZURE. 
 Ste Fieri Facias 1. 
 
 SET OFF. 
 
 See Discount 
 
 SHERIFF. 
 See Fieri Facias 2. 
 
 SIMPLE CONTRACT DEBT. 
 
 See Eond 2. 
 
 Extinguishment 1. 
 
 Release 1. 
 
 SLANDCR. 
 
 1. In an action of slanJir for words 
 spoken, it was alleged that tlie de- 
 fendant had charged the plaintiff wi& 
 poisoning the defendant's horse 
 llfld, that the words were not act 
 tionttble. Chaplin v Cruikthcni/ff, 217 
 
 2- The court refused to direct the 
 
 jury, that if the horse was alive, the 
 words laid in the declaration were 
 not actionable, the same being irrele- 
 vant to the issue. Jb. 
 
 3. The. com t also refused to di. 
 
 rect the jury, that if the words spo- 
 ken did not amount to an offence for 
 which the plaintiff might be indicted, 
 they were- not actionable, as the de- 
 fendant might take advantage of it in 
 arrest of judgment. lb. 
 
 4. Where the words charged to have 
 boon spoken were, that 'he the said 
 J swore, juke, and buxrre in a lie," in- 
 nueiidu, "meaning that the said J had 
 committed perjury; that the said i 
 had taken a, talse path before a magis- 
 trate" Htld, that the words were not 
 actionable. Stiietly v Biggs, 365 
 
 5. No words are actionable unless they 
 impute a crime to the plaintiff which 
 subjects him to punishment. Jb, 
 
 0. The office pf the innuendo is to ex- 
 plain doubtful word* where there is 
 matter sufficient in the declaration to 
 maintain the action; and if the words 
 in themselves are not actionable, their 
 meaning cannot be extended by it to 
 i)>ake them actionable. Jb. 
 
 7. If the words may be understood in 
 'a sense not criminal, there must be a. 
 colloquium in the introductory pajl, 
 to show they were spoken in a cri- 
 minal sense, or they arc not actiona- 
 ble, lb. 
 
 8. To make the word foresworn, slan- 
 der, it must be introduced b\ a crille- 
 quiunt, setting forth seme judicial 
 proceeding ia wUicu tb>" -party wa*
 
 SL 
 
 A v. 
 
 th 
 
 IliU of --ale . 
 r'rredorn . 
 Main.- 
 
 \uul. 
 
 SPECIAL 
 
 4. In . "<'* " 
 
 ?u overseer, and a ijttunhim muruit tor 
 
 t^c same stm.T.- UtM, that if there 
 
 < -.p-ri.il nyreemetit between the 
 
 . tin" : nl iXendunt for tlie plxin- 
 
 as un overseer, the 
 
 VtfY could not recover upon his 
 
 ration. (. 'i tjin'r. 
 
 tnrt of land, decree 
 for a chu iL.cn in 1. 
 
 40 
 fftfr* 2. 'I be specific perfqi-mance of a bond 
 
 fir conveying J.tml, 
 
 ...ii^h 
 d lhat 
 the bond 
 
 ..u-d tint ; 
 
 SaiinJirfi, tl (i.c v Xmi;ujn t ; .. , 1 
 3. 'I he court of cliaii- 
 
 force a spccilir p< -rn -n.:>i:. e 
 spcctil:itji .u'lit:-! 
 money, h'.j'f.'. . JO4 
 See C<;i;it of Ciiimcery >o, 
 I'arot Agreenitnt. 
 
 SPF.C Tl . \ : WG - OH ! ILVCT. 
 See Speci(ic Performa; 
 
 SPECIAL AUTHOR11 V 
 
 V A special .int'.iority must he strictly 
 ' ' 
 
 pursued, 
 
 7'ayl/fr, 
 
 o'J6 
 
 SPKCIAL CONTJIACT. 
 
 %tt Special Agreement. 
 
 sn;!-l.\L DKSCRIPTION. 
 
 i 
 
 VERDICT. 
 
 . aihnisMons of counsel of certain 
 
 1 in a special verdict, taken 
 
 former trial hctwccn the sapie 
 
 s in the same siction, :ire not 
 
 evidence on a new trial 
 
 iiijrttyv Gaffim *w^ 
 
 SPECIAL WARRANT. 
 
 I A spccb} warrant is used U- affect 
 >:ted land, in '.yhicli the iocation 
 '.he cjuantity of ; 
 :uii the party pavs the coi 
 
 1,1 I.efon- tlie time <rf 
 ;!iv miinhrr 
 
 ..- within thr usual time cf 
 '.\ more 
 
 i'tidc Mid pr.-i-U'<t!i the land thus 
 
 If on :h<: .sun-i.y bcin.if 
 
 M to the party tliat he 
 
 much Ixiul M he paid for, 
 
 if utirpius of his UTr- 
 
 i,y ^a(.Ullt land, \vnirli 
 
 a <.j. :mnt is competen\ to 
 
 HI <H:tl^uiiy, ( r 
 
 'he land ao located in. 
 Jlamwyrid, ti al. LeiscK 
 
 
 of a 
 
 . 
 
 STATE. 
 
 1. The state held tlie Proprietary^ Tt- 
 versionai} .i.rejy by subst' 
 
 ;i in liis jil'-re, :. 
 the act of N 
 
 ecmpi-'.-.nt t'. ' 'tiguiMh tha 
 
 revi : ' of the bLate. 
 
 J/fu 
 
 Stc Adver- 
 
 ' ! *', J, 6. 
 
 Escheat 10. 
 
 Limitation of Actions 5. 
 
 Ofiicc Found. 
 
 1 ropriftaiy I. 
 
 SUCCESSION. 
 Se French Laws i, 2. 
 
 Iuti"-t:itc's Estate 1. 
 '1'cstator '. 
 
 SUMMONS. 
 
 1. Cn the. death of a defendant in as 
 action of debt, &c. a biuiinon.s m. y 
 issue toki. 
 being no i 
 tor of tl;- 
 ant! defend the action. -Ac; 
 
 :!t t 4J5 
 
 5.UIT.IIM PI \ 
 
 I. A writ U error, sft -r seizure under 
 a furi facia*, and 1 
 *vparstdu. Jlcut'y't *1<j 
 
 7 
 
 Sl'RK 1 S 
 
 1. A surety is not answerable beyond 
 his enic^fQicnt. A/'J/tV/ra v The 
 
 Mutj'ir, , 
 
 2. A purchased land from 1), uud in the 
 bond g-ivt-H for the purchas>e r. 
 
 C becomes bounii .surety, B : 
 
 him wnn an icta t^t Uic
 
 tnoncy ulitf'it 'c paM from the sale of 
 wood on the hind, t< prevent the sale 
 of which U afterwards obtained nrt in- 
 junction. On a bill in chancery 
 brought by the surely, it was decreed 
 that lie shuO.ld be relieved from his 
 suretyship, Lynch v Cu/e^rttr., 34 
 
 3. A coutplainant is not entitled to re- 
 lief in equity against the executors of 
 a joint obligor, who was a surety in 
 tlu- bond. Per If'inson, Chan. IV'd- 
 liunis v Hodgson, .574 CiwftJ 
 
 4. A judgment having been obtained by 
 JJ against K>, and C his suivtv, a $-J&- 
 issued thereon against H, who surviv- 
 ed C, and wa.s laid on. K's land. The 
 administrator of C paid the Hiriount of 
 the judgment to K, who directed the 
 judgment to lie entered for the mo of 
 the administrator of C. A veridit'umL 
 fjrptmnS) issued for the Use of the ad- 
 ministrator of (J, for a sale of the land, 
 \vris returned uu.iold, <kc. and \va oil 
 motion of the defendant quzxhml . 
 Berry v A7cW/v, 503 
 
 V?e Assignment 1. 
 
 Court of Chancery 15, 24. 
 
 Discount 5. 
 
 Evidence 59, 60. 
 
 SURVEY. 
 
 if re. Deposition 1. 
 
 Oant. 
 
 Location of Lands. 
 
 Parol Evidence 3. 
 
 SUSP KNS ION. 
 Set. Covenant 1. 
 
 T. 
 
 TALCS. 
 
 See Criminal Prosecution 5, 6. 
 
 TECHNICAL WOltUS, 
 
 See Conveyance ~. 
 
 TEMPORARY RF.STDF.NCK. 
 Se Acknowledgment of D*'cds 3, 4. 
 Residence 2, 3. 
 
 TENANT IN COMMON. 
 
 1. A tenant in common under tlic act to 
 direct descents, rn.iy dispose of his 
 imprest in any particular part of the 
 estate so held in common. R:iitii-!{fr 
 r S mi ill, , 4^1 
 
 See Acts of Assembly 6, 7. 
 
 Court of Chancery 35. 
 
 TEXAXT IN TAIL. 
 
 See Estate 1'uil, 
 
 TRTlVt 0? 
 
 1. A parol sale may be made rff a Slav* 
 
 fora ter;n ol'veurs^ and aft.tr the (X-- 
 
 piration thereof to be Wamimirte'A Hfr 
 
 the ven.lje. xVVi/ro Catn v Lifnrti f r'&L 
 
 TERIiP.-TENANT. 
 
 Sf, Fieri Facias ;. 
 Scire I'acias 1 , 2. 
 
 Sec Administration Bond-. 
 - - Pleading 1, 2. 
 
 TEStAffJTi. 
 
 1. Any creditor may site an 
 pn. forma, prov'uled he sliows hittt* 
 self to be a creditor under th- 
 of the country where the COiura ' 
 was made; and as long :;s assets re- 
 
 main' in the hui'.ds of such exfc't'..--, 
 he is an.s\ver:iblc to the credit*.-:- 
 if there is any surplus, it is to . 
 the mass of the succession, to (><. di" 
 tributed according to the laws of th* 
 ca';:rii-v \vh.-ix- the testator was do- 
 nilciled. 1)z So-^ry r Terrier-, 2:24 
 2. Personal pru^'-My adheres to the p^i'- 
 srin, and wherever the testator is do- 
 micil at the time of lii> death, thft 
 property is to be distributed acv<'-' 
 dinj to the laws of that country. /5. 
 
 TESfrMONY. 
 
 1. Testimony taken in a farmer su it ih 
 rliiijicery between tiTC sam j 
 for tl;e s;ime relief, and which -.va* 
 dismissed by the complainant, may 
 be read in evidence by the d 
 dan's on the hearing of the liew s!l!- 
 Hopkina v Sftirnp, ct at. 3GL 
 
 C. The testimony of a witness lioft 
 resident of the stutf, taken under the 
 act of Jnl./ 1779, ch. 8, to perpetual 
 testimony,- read in evidence. 
 Ri:siiiKxi<K 2, aria 
 Hrydr.n ii Tuylori 3^6 
 
 See Evidence. 
 
 TITLE. 
 
 t. Wlieff an ejectment can be support- 
 ed uo-ni a'i c'n-iitable title to laiids-^ 
 See E.IE7TXENT i'>, au 1 
 /dy* S3 Ihni v ColdsljorOugh's LtS?tr\ 
 
 369 
 
 Sc-5 Acts 2. 
 
 - Adversary l'osession 3; 5, 6. 
 
 - - Limitation of Actions 2, 6j 9 1 1 , 
 
 - Trespass 6. 
 
 - Vendor &. Vendee 1. 
 
 TREATY. 
 
 SM Alien 1. 
 
 - Confiscation 3, -t, 6.
 
 INDEX. 
 
 rn; 
 
 1. loan s<:li''\ ; t: -.;.!,; 7. c. f. the 
 plamUlVorVci.vl to prove that he was 
 in possession of the land on which the 
 .i%> was alleged to have been 
 committed, and that the defendant 
 committed the trespass complained 
 of, on the land M in th. - possession of 
 the plaintiif, at the place by him lo- 
 1 o.i the plots. II M, t'.iat such 
 evidence was a.i.uL>aiuL-. llugnnrc 
 
 2. The plaintiff offered to prove hy a 
 witness, that he was prcscut when the 
 land, on which the trespass was al- 
 lejjvd to have been committed, w;s 
 orijjiailly located cr taken up, and 
 tJuil the tract was then located, as it 
 now U on the plots. Held, that the 
 CM l-jur;. -A a- ulmisiible to prove the 
 ori^iiul beginning and location of the: 
 land. PJ. 
 
 3. In an action of trespass <j. c. / on 
 a tract of land called G L), t'.ie d'ei'en- 
 dant took defence far a tract of' land 
 Called -i, on a / 
 
 d trespass w.ts committed-- 
 thai the [iLuntiJf was only entit; 
 recov ei- for a tr oittodwithf 
 
 it* the lines of the truci called G J), .is 
 tLe samo was located Uy him on tne 
 plots, altho' he had been in tit-. 1 po..- 
 session ajtd cultivation of the land, on 
 tvtiich tli. % trespass v/as allied to be 
 com nitteti, claiming tli<- same a< part 
 of (i D, for upwards of 50 years, and 
 it luia always been called and reputed 
 ^ part of that tract. G. & J. CV//i- 
 tii'Vi v Bran.-.. 3(i,S 
 
 4. In trespass y. c. f. the defendant 
 tooli defence for, and l^-ated on 
 the pints, a tract of land Called G C, 
 which include:! a tract called 7' .V, 
 <u which the lri'.spai \v.is aliened to 
 have been committed, and which l.i-,t 
 tract the [jUintiff !.K.-atctl oil th'- ;)!(.>; 
 <1 be also located l-.t .No. . : ..". ", I, lit 
 he did n->t coujitcrlocate the ! 
 
 by the defendant. The de- 
 
 ..kiit r^ad in evidence the grant of 
 
 G C, which called to begin at llie end 
 
 of the second I'm;.* of lot No. -5.-51 - 
 
 , that it *.i -ary for him 
 
 tw produce th.' grant fi-r lot No. .1J51, 
 
 to prove the location ot t'>at lot, and 
 
 >efinninjf of G C. T-jmli 
 Hi:- r, 44-4 
 
 5. Hie co-'.rt refused to direct the jury 
 in an action of tresjn*-. '/. c.f. that >t 
 wji- ,-. on tht pUuuiff, in or- 
 
 '. ion, to prove a 
 to the land, on which the tres- 
 pass vu alleged to be committed, or 
 
 to prore n actual possession by en- 
 clu.i i on the plots. ft. 
 
 . \I.HO, that if the phiinutf, 20 year* 
 
 before bringing the action, run his 
 lairl in the presence of the defendant 
 to a point, marked on the plots, as a 
 boundary between his land ami the 
 laud ot the defendant, and tlu- several 
 lines from that point to certain other 
 points, abo marked on the pli. 
 divisional lines between them; an.i if 
 the defendant has at no time commit- 
 ted any trespass over said divisional 
 lines, in such case he is not a m-ju-- 
 ser, and not liable to the action, uii- 
 Icss he w;w previously warned or for- 
 bid to come to aid lines. T bonus o 
 
 50 C> 
 
 Tftovtnt. 
 
 1. A slave having been hired by the rtc- 
 turul guardian of infant children to a 
 sea captain to perform a < 
 
 wages, the slave to be safely returned 
 &.c. The >) sold by her 
 
 owners at the port to which >Iir V<-nt, 
 
 s:on.i by tile captain, and Hit or. 
 
 ..t' another vessel bound 
 
 he never return.-l. In an action of 
 
 troi-er by the children against the cap- 
 
 lnii i'or the value of the :,l.-u t - //>.!/, 
 
 that the action was well brought. HL.V 
 
 et id- v Conner. J 17 
 
 2. In an action of Irorcr brought by an 
 employer against his overseer to n. 
 cover the value of a hhd. of tobacco 
 made on the plantation, and in-.peri.-d 
 in the name of the employer, and the 
 note delivered to the overseer to be 
 by him delivered to his employer, 
 but whic'i lined : i,i.i vjld by 
 the over-seer, as hi> share of th. 
 
 of six bhds. under an agreement t-ti- 
 
 : into l.ctween the parties, stipu- 
 
 latin.; vhat the overseer should have 
 
 on<; sixth part of all tr.hucco ma'ti 
 
 flfltl, that the plaintiH" was entitled to 
 
 .or. Wccma v b/oZA'/i^T, 365 
 
 See. Discount 3. 
 
 TKUST k TRUSTEE. 
 
 1. Whether or not the court is at liber- 
 ty, in expounding a.iicil of convey- 
 ance creating or limiting a use or 
 trust at common law, an.l not united 
 to the possession by the statute of 
 , to reject the rules eAtahl;-.h>-d 
 by the common law in the con'rnc- 
 lion of a conveyance of a freehold ci- 
 Ute, and to give an exposition ac- 
 cording to tli e int'-ntion of the par- 
 ties as in a will > ll'illinsm.'crth ct ux 
 v itDomldtt (J. 230
 
 INDEX. 
 
 569 
 
 2. Whether a trust estate, or any but a 
 legal estate, can pass by a deed of bar- 
 gain and sale? Ib. 
 
 3. Whether a trust estate is answerable 
 to the creditors ofetatuique truxt. Ib. 
 
 4. As to the distinctions between trusts 
 executed and executory, see the ar- 
 guments of counsel in this case. Ib. 
 
 See Court of Chancery 20, 24, 31. 
 
 Discount 5. 
 
 Ejectment 40. 
 
 .. Evidence 59. 
 
 Parol Agreement 2. ^ 
 
 - Preference 1. 
 
 u. 
 
 UNCERTAINTY. 
 
 1. There being no designation of part 
 of a tract of land, contracted by a bond 
 of conveyance to be conveyed, nora- 
 ny description whereby it can be 
 identified, parol evidence is not ad- 
 missible to show that it was intended 
 by the parties to be laid r-.Tin a par- 
 ticular manner; and the bond is void 
 for uncertainty, except on the princi- 
 ple of election. Hunt & Porks v 
 Gist etal. 493 
 
 See Description 4, 5. 
 
 USAGE & PRACTICE. 
 See Land Office 1, 2, 3, 4, 5, 6, 7. 
 
 USE. 
 See Trust & Trustee. 
 
 V. 
 
 VACANT LAND. 
 
 1. Land included in a grant, but exclud- 
 ed from the certificate of survey on 
 which the grant issued, cannot be 
 taken up as vacant land. Tolson'/t 
 Lessee v Lanham, 174 
 
 See Certificate of Survey 1. 
 
 Grant 15, 16, 19. 
 
 Relation. 
 
 - Warrant 1 . 
 
 Warrant of Resurvey 2, 4, 5. 
 
 VACATING GRANTS, &c. 
 
 1. As to a variance between a description 
 of land contracted to be sold and con- 
 veyed, and that used in a grant of the 
 land as a ground for vacating the con- 
 veyance, &c. See COUIIT OE CHANCE- 
 JIT 33, and 
 Hammond v Sappington, 446 
 
 See Court of Chancery 44. 
 
 Fraud 6, 8. 9. 
 
 Grant 25, 41. 
 
 Parol Evidence 9. 
 
 VOL. II. T2 
 
 VARIANCE. 
 
 1. As to a variance between a descrip- 
 tion of land contracted to be sold and 
 conveyed, and that used in a grant 
 of the land SeeCocuT OF CujkHctKir 
 33, and 
 Hammond v Sappington, 446 
 
 See Location of Lands 9. 10. 
 
 VARIATION OF THE COMPASS. 
 
 1. The variation of the compass is to be 
 ascertained by the jury on the evi- 
 dence before them. Howard v Moale, 
 etal. Lessee, 274 
 
 See Grant 35. 
 
 Location of Lands II. 
 
 VENDITIONI EXPONAS. 
 
 See Fieri Facias 2. 
 
 VENDOR AND VENDEE. 
 
 1. If a mortgage of slaves was subsist- 
 ing, and the mortgagor, claiming the 
 absolute ownership of them, sold them 
 for a full consideration, altho' as to 
 the mortgagee, the sale would trans- 
 fer only the equitable interest in the 
 slaves; yet as between the vendor ami 
 vendee, the operation of the contract 
 would be to pass the absolute owner- 
 ship in the slaves to the vendee; and 
 notwithstanding the after discharge 
 of the vendor under an insolvent law, 
 and his purchase of the slaves from the 
 mortg-agce, his subsequent acts, in 
 perfecting his title to the slaves, will 
 enure in law to confirm, and not to 
 defeat his contract with the vendee. 
 Darsey v Gaasaway, 411 
 
 See Bill of Sale 1 . 
 
 Equitable Estate 2. 
 
 VENIRE. 
 See Criminal Prosecution 5, 6. 
 
 VERBAL AGREEMENT & CON- 
 TRACT. 
 
 See Contract 3. 
 
 Parol Agreement. 
 
 Warranty. 
 
 VERDICT. 
 
 1. Where the plaintiff has made but 
 one location on the plots of the be- 
 ginning of the tract of land for which 
 the ejectment is brought, and that is 
 counterlocated, the jury cannot find 
 a beginning for the plaintiff different 
 from that located by him. Hammond, 
 et al. Lessee v Norris, 14S 
 
 2. The jury cannot find a location of 
 their own, but if they find for the
 
 570 
 
 INDEX. 
 
 plaintiff, they must find <ome one of 
 
 hi- l-H-a'-.or.s on the plots. /.'. 
 
 ". It" tin- beginning of :\ tract of land is 
 
 or cannot ( >e proxcd. then the br 
 
 ginning' i* to be fmmd h\ re\ er>ing the 
 
 lines of th<- tr.4> t from the first known 
 
 and established boundary. lit. 419 
 
 4. The jur\ by their verdict in an xcti- 
 on of <. -jectment, found the true loca- 
 tion of the land tor which the eject- 
 nient was brought '.o be from It-: 
 
 on the plo's ;<i n, to .1, to/Jft/r perches 
 Ar/nr big /', tlie head ot 7/' brunch, 
 and )ien to./; they jil>o found for tlie 
 plaintiff his pretension* (not being to 
 the extent of tlie said location) to be 
 from .? to a, to f . to fi.iir perches btlow 
 /'. tin- h. -;.! ot '//'. branch, and 
 then to ./?, and that tlie defendant was 
 guilty of the trespass complained of 
 within the said pretensions :md not 
 guilty as to the n-iduc of the tres- 
 pass complained of in the residue 
 of the land Hi Id, that there was no 
 uncertainty in the verdict. Howard 
 /-, et a I Ijcttee, 276 
 
 5. In '-'ii action of ejectment for 50 acres 
 of arable land, 10 acr.-i. of meadow 
 and 1U<, acres of wood-land, part of a 
 tract- o* land called // /', the jury by 
 their verdict found the tme location of 
 that tract, and .No the lorationsof oth- 
 er tracts for which the defendant took 
 defence They aUo found for the 
 plaintiff all the land called // /'. :.s 
 1 .'! by them, which lies clear of 
 the other tracts so located by tbf-ni, 
 and which li<-s to t'ue '-astwavd of a 
 division line between the plaintiff's 
 lessor and J S, from a i articular po nt 
 to another point Iltld, that the ver- 
 dict, and die judgment i . ndcred 
 thereon, were not uncertain, and 
 vere not for more land than the plain* 
 tiff claimed' in his action. Hull v 
 
 ;*93 
 
 fi. \\li<re tin tict of thr forgery of a 
 c-rt'fn.:i'.- ;(' -'iney, under the grant 
 on which ;.t rl.t'm.. .!, . :.iue 
 
 before the c'.urt and jury collaterally, 
 in an action < ', and was 
 
 m>t directly rn (jucstion, the issue be- 
 twri-n the partits being, who had the 
 right of possession to the land in con- 
 troversy, the vtrdict, which was in 
 i:.\')jr of ihe defendant, r.aiuut he n-- 
 ceivpd an evidence to pnne that the 
 cer not for?- ; 
 
 1 i a/, 
 
 7 i ,t having directed 
 
 the jt.rv, tl M t it they Co nui (lie certi- 
 
 '.at nothing pas 
 the yran:, .. u.uj be i/;cUoi.cd whe- 
 
 ther the verdict could conclude the 
 plaintiff, if the fact of forgery hud 
 been directly ii. is-' ,/. 
 
 See Court oM'lianccry 1", 
 
 Issues 2. 
 
 Judgment?. 
 Keversal 1 . 
 
 Variation of the Compass. 
 
 VKS I I-.D KM'ATK. 
 See Acts of Assembly 6. 
 
 VESTKD RIGHTS. 
 
 See Acts of Assembly J. 
 Kepeal 1. 
 
 VINDICTIVE DAMAGES. 
 
 Bee Covenant 7. 
 
 VOID fc VOIDABLE. 
 
 See Evidence 9. 
 Urant 15. 
 Uncertainty 1. 
 
 w. 
 
 \VARKANT. 
 
 1. The nature and efficient qualities of 
 the different kinds of warrants \\ hu h 
 arc used to take up vacant land . 
 &ee COM.XOK WABRAXT I. Si-niAt 
 I\'ABR.>T I, WABHAWT or KKI>LU- 
 TKT I , and 
 Hannnnnd, et al. Lessee v Nurrif, 132 
 
 WARRANT OF ATTORNEY. 
 See Corporation 1. 
 - Kccord 1. 
 
 WARRANT OF RESURVF.Y. 
 
 1. A warrant of resurvey is taken out 
 for the purpose of re.-.ur\e% ing a tract 
 or parcel of- land in which the party 
 IIHS a fe simple. In virtue of *ur.h 
 \varrant he acquires a right <: 
 emption in all the adjoini' 
 
 and if he makes his sun-y, an- 1 
 the caution money within l-:> \tars 
 from the date of hi* warrant, h- 
 Co;. ;,| ic equitable 'list-Test in all the 
 \ included in ! tltun- 
 
 mmtil, ft al. J^cffcr r A>- 1 - 
 
 2. A prr-.on vvl.o takes out a warrant of 
 resuney wiihout bi-ir,;; s< i/rd of tlio 
 original tract ; 
 
 title iu the vacant land included in 
 imc.h rf-uney, wh-n tlu- com; 
 mone\ is paid, miles* wn.c- ..:!,. r f-i-r- 
 mn in til;' n;ean t.nn- I 
 terested in RI:< >"d. 
 
 3. A warrant of i 
 
 a per*'in r."t (?.< d ot ' 
 
 tract, is nut Ji^ul notice of the loca
 
 INDEX. 
 
 tion of the warrant. Hammond, dal. 
 Lessee v jVwm, 123 
 
 Hammond, et ul. Lcssf-e v Wtirfeld, 151 
 
 4. A grHiit for vacant land, not contigu- 
 ous to the original tract, included in a 
 certificate under a warrant of resur- 
 vey, will operate to pass such vacant 
 land, unless some other person in the 
 mean time becomes interested in such 
 vacancy. Hammond 'et al. Lessee v 
 Warfidd, 152, 15J. 
 
 5. Where vacant land, not contiguous 
 to the original tract resnrveyed, is in- 
 cluded in a certificate of resurvey, it 
 is not legal notice of the location of 
 the warrant \miil the certificate is re- 
 turned to the land office. Jb. 155 
 
 See Grant 41. 
 
 WARRANTY. 
 
 1. If the seller of goods 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, the purchaser 
 may return the goods, and recover 
 back the money, in an action for mo- 
 ney had and received; or he may even 
 have this action without a return of 
 the goods if he give notice to the 
 seller where they are deposited. Rut- 
 tcrvBlnlie, 253 
 
 2. If A sells ahorse to B, affirming him 
 to be sound, and 1$ receives the horse, 
 and sees Out on a journey, but finds 
 the horse to be unsound, and leaves 
 him on the road, he may recover 
 buck the money he paid for him, in 
 an action for money had and received, 
 if he gives notice to A where the 
 horse is; and lie is not bound to re- 
 turn the horSe. Ib. 
 
 3. But if B gives no notice to A, 
 
 but sends the horse to vcndue, and 
 sells him for half what he gave Here 
 B has elected to abide by his contract, 
 and he can never resort to A to make : 
 good the difference ef price. Jb. 
 
 4. .If a merchant buys goods, the seller 
 warranting them to be of a particular 
 description of quality, and the mer- 
 chant, without examining 1 , sends them 
 to the West Indies, where, upon open- 
 ing, 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 Ins action on the special 
 agreement of waiTu.,y, and recover 
 damages for the full amount of the 
 injury he has sustained nor is he 
 
 r J U> return the goods, or put 
 
 himself to any further expense or 
 trouble about them. Jb. 
 
 5. But if the merchant sells the 
 
 goods, and receives the amount of 
 sales, not as agent for the seller, but 
 upon his own account, it will deprive 
 the merchant of his remedy upon the 
 warranty. Ib. 
 
 See Counterfeit Bank Note. 
 
 WILL. 
 
 1. Whether or not a will was legally ex- 
 ecuted and proved, are matters of fact 
 for the jury. JUailv Gittings Jr. Les- 
 sec, 121 
 
 2. The jury were directed, that from 
 the length of time elapsed since the 
 making of a will, they ought to pre- 
 sume it had been duly executed and 
 proved. Jb. 
 
 3. A paper was exhibited for record as 
 the last will of C W, proved to have 
 been signed by him at a lime when 
 he was about to leave the state. It 
 was couched somewhat in the form of 
 a letter, and stated, "If I should not 
 come to you again, my son M shall 
 pay," f*c. Evidence was given that 
 he went to Kentucky, and returned, 
 and that he lived several weeks there- 
 after Held, that the paper could not 
 be admitted to record as the will of 
 C W . Wagner v M'Dcnald, 346 
 
 4. In expounding wills, the first and 
 great principle to be observed is, that 
 the intention of the testator is to pre- 
 vail, unless such intention is opposed 
 to some rule of law. Drury <? Bennett 
 v Negro Grace, 355 
 
 See Axithentication 1. 
 
 Bequest. 
 
 Wevise. 
 
 Evidence 33. 
 
 Foreign Laws 1. 
 Parol Evidence ?. 
 
 WITNESS. 
 
 1 . If the testimony of a witness is in 
 tended to be' objected to in an action 
 of ejectment because of his holding 1 
 adjoining lands, &.c. his interest must 
 be located on the plots. Hall v Gii- 
 tings Jrs. Lessee, J20 
 
 2. 'I he declarations of a former holder 
 of adjoining lands as to the bounds of 
 the fend in dispute in an action of 
 ejectment, were admitted inevidence, 
 it not appearing by the plots that lie 
 was interested. Ib. 121 
 
 3. A ft.me cwcrt, one of the grantors in 
 a deed conveying a tract of land, the 
 acknowledgment of which by her hav- 
 ing Lci-ii dfccUccd to be ueJ'cctive,
 
 INDEX. 
 
 * admitted to give evidence on the 
 part of the defendant, in an action of 
 ejectment brought for the same hn.l, 
 by n person claiming under her deed. 
 Hni: Lessee. i86 ("note. _) 
 
 4. The deposition of a witness, non re- 
 sident (it . taken under the 
 act of July 1779, cA. 8, to perpetuate 
 testimony, admitted in evidence feee 
 RESIDENCE, 2, and 
 Brydtn v T\iylor, 396* 
 
 5. A witness may recur to a paper, 
 which is not rvidence, for the pur- 
 pose of refreshing his memory. Dor- 
 gey v Uassaway t 410 
 
 See Answer in Chancery I, 2, 
 
 Competent Witn. 
 
 Credibility 1. 
 
 Deposition I, 2. 
 
 Manumission I, 2. 
 
 See Slander. 
 
 WO [IDS. 
 
 WKIT OF ERROR. 
 
 1 . A writ of error, after seizure under A 
 & fieri fiifUiSf and before a sale, is no 
 titpersedeai. JJealty'sAd.'n'r. v Chap 
 tine, 
 
 Sec Abatement I. 
 
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