
    GENERAL COURT,
    OCTOBER TERM, 1787.
    Aquila Paca’s Lessee against Jacob Forwood, Richard Lee and others.
    EJECTMENT for three tracts of land, called Delph, ;ontaining 600 acres; DelplCs Neglect, containing 120 
      acres; and Goldsmith’s Hall, containing 800 acres, lying in Harford county.
    It appears from the special verdict, found in this case, that Aquila Paca was seised in fee-simple of the said tracts of land, and devised them to John Paca, his son, in tail, remainder over to his nephew Aquila Paca, in tail. By virtue of which devise, after the death of the devisor, John Paca, the son and devisee, entered into the said lands, and, being seised thereof, died leaving issue, Aquila Paca, who entered and was seised as tenant in tail, by virtue of his grandfather’s will.
    That Aquila Paca, the grandson, being seised of the land in question, signed, sealed and delivered a deed, in writing, not indented, in the form following: “ This indenture, made this sixth day of November, seventeen hundred snd eighty-three, between Aquila Paca of Harford county, of the one part, and Henry Johns of the same county, of the other part. Whereas the said Aquila Paca is seised, as tenant in tail, of the following tracts or parcels of land, &c. which entails the said Aquila Paca is desirous of barring by this present indenture, under an act of assembly in such case made and provided, and that he may be enabled to dispose of and limit the same to the uses in his last will to be declared, hereby conveying to the said Henry Johns an estate in fee-simple, for the use, intent and purpose, that the said Henry may reconvey to him, the said Aquila Paca, an absolute estate in fee-simple, thereby to dock and bar all estates in tail in the premises, and that the said Aquila Paca may fully and absolutely be seised of an indefeasible estate in fee-simple therein. Now this present indenture witnesseth, that the said Aquila Paca, for and in consideration of the premises, and also for and in consideration of the sum of five shillings, current money, to him in hand paid, &c. hath given, granted,” &c. [/« common form.]
    Which deed was acknowledged in the form followings 
      u Be it remembered, that on the 6th day of November, 1783, came the within named Aqüila Paca, before us the subscribers, two of the state of Maryland's justices of the peace for Harford county, and acknowledged the within instrument of writing, to be his act and deed, for the uses therein mentioned, and the lands and tenements there described, to be the estate of the within named HenAy Johns, his heirs and assigns, according to the true intent arid meaning thereof, and according to the fortn of an act of assembly, in such case made and pro» vided,” Sic.
    On the 7th of November, 1783, Henry Johns, by a deed of bargain and sale, not indented, recoriveyed the said land to Aqüila Paca, who entered into the said land* arid on the 8th of November, 1783, devised it to the defendants in this cause, iri fee, after which devise the said Aqüila Paca died, leaving no issue.
    The plaintiff in this cause is the nephew of Aquild Pácá the grandfather, and claims the land as the remainder-man in tail, under the will of the said Aquila Paca.
    
    
      Note. At May term, 1786, there was an entry on the docket of “ notice to produce the original deeds from Aqüila, Paca to Henry Johns, and from Henry Johns to Aquila Paca, for the lands for which this ejectment is brought.
    Jenings, for the plaintiff.
    
      Aqüila Paca, by deed-poll, conveyed the lands to Henry Johns, in order to bar the entail under the act of 1783, c. 23. j he then took a reconveyance rind devised in fee to the plaintiffs.
    The question is, whether this deed-poll is sufficient under the act of assembly to bar the entail. And whether the deed ought not to have been indented ?
    The act of assembly is plain and explicit. It enacts, that “ any person or persons, seised of an estate-tail, in possession, reversion or remainder, shall have full power to grant, bargain and sell, and convey' any lands, tenements, or hereditaments, whereof he, she or they shall be so seised, by such manner and form of conveyance or assuranee, as any person seised of an estate in fee-simple, may^ by the laws of this state, grant, bargain, sell and convey any lands, tenements, or hereditaments, whereof such person is seised of an estate in fee-simple; and all and every such grants, bargains, sales and conveyances, of any person or persons so seised in tail, shall be good and. available to all intents and purposes, against all and every person and persons, whom the grantor, bargainor or vendor might or could debar, by any mode of common recovery, or any ways or means whatsoever.”
    Can land be conveyed by a deed-poll, as a bargain and sale ? A deed cannot be a bargain and sale, unless it be indented. Indenting and enrolment are absolutely necessary to its efficacy. It is expressly mentioned by the statute, and considered an essential requisite by every commentator on the statute.
    Though indenting may be considered as a mere ceremony, yet the legislature having directed it as an essential part of the conveyance by bargain and sale, it must be complied with, until the law is altered by the legislature. Sealing at this time of day is of as little importance as indenting, for no person can now be known by his seal. So there can be no deed without delivery, and yet in point of reason, there is no more use in the one than in the other.
    The statute of 27 Hen. VIII. c. 10. transferred the possession to the use. Now as a use might be created by any instrument of writing, and even by parol, it followed as an effect of the statute of uses, that secret conveyances might be made. Wherefore, the statute of 27. Hen. VIII. c. 16. called the statute of enrolments, was made to prevent this inconvenience. It directs in what manner a bargain and sale shall be executed, to convey such a use as will be executed by the statute. If the bargain and sale be not executed pursuant to the directions of this statute, no use can arise, and, consequently, there will be nothing to draw to it the possession.
    The party is empowered to convey lands by bargain and sale, only in virtue of the statute of enrolments; he must, therefore, pursue the words of that statute. All writers agree, that indenting is a necessary circumstance to constitute a deed of bargain and sale. 2 Inst. 672. Shep. Touch. 222. 1 Shep. Assur. 283. 2 Bl. Com. 338. 1 Bac. Abr. 273. 276. Finch’s Law, (note.) 10 Gilb. Uses, 87. 90, 91. 3 Leon. 39. Cowell’s Interpreter, verb. Bargain and Sale. Litt. Rep. 23. Wood’s Convey. 482. 1 Lili. Convey. 13. 3 Bac. 336.
    If the statute, as it is plain it does, requires an indenture, can a deed, in legal idea, be called an indenture, when there is no act of indenting ? This would be confounding all distinction between a deed-poll and an indenture ; as the act of indenting makes the essential difference between them. For the difference between a deed-poll and a deed indented, see Co. Litt. 229. a. 143. b. Shep. Touch. 50, 51, 52. 2 Inst. 673. Wood’s Convey. 481, 482.
    The mode of pleading shows that a deed of bargain and sale must be indented, for it is always alleged to be indented, and if the allegation of its being indented be omitted, it is intended a deed-poll. Co. Litt. 229. a. 1 Co. 21. 109. 116. But what would it signify, whether it was intended one deed or another, if they are both to have the same effect.
    Pleading, though it does not make the law, is evidence of it, for pleadings must be conformable to law. It would be strange, if an indenture should have one effect in pleading, and another if produced in evidence.
    It is clear, that a deed-poll could not convey land before the statute of enrolments; and, unless that statute supports such a mode of conveyance, it can have no other effect than it had at common law. At common law, all conveyances operate by way of feoffment or grant, 1 Burr. 92. Of the first are feoffment, fine or recovery, the two latter being in the nature of feoffments on record, and being suffered in the Icing’s Courts, are of equal notoriety as, livery, of seisin. This deed cannot be said to be either of these, for it has no livery of seisin to make it a feoffment, nor is it either a fine or a recovery. If ft Operates by way of grant, it must be either by exchange, release, confirmation, grant of the reversion, (which, at common law, before the statute of Anne, required attornment,) bargain and sale, or will j the two last operate by force of the statutes, the others at common law. It cannot operate as a release, for there was no precedent estate to be enlarged, nor any precedent right, to which another right could be transmitted to make it operate as a'release by way of mitter le droit. It cannot operate as a grant of the reversion, for there was no precedent estate transferred, on which a reversion could depend. To talk of a will is out of the question ; therefore, if it has any operation at. all, it must be as a bargain arid sale, qnd this again brings it to the question, whether it has the requisites pointed out by the statute, to give it such operation. At common law it created a use, and nothing more 5 and such use might also he created by, parol, but this only gave a right for an equitable applica* tion, and these secret transfers were intended to be abo? fished by the statute of enrolments. 2 Bl, 327. 337, 338. 2 Inst. 675, 12 Mod, 162, Cro. Eliz. 345, 1 Bac, 276.
    
    Indenting, was requisite to a bargain arid sale, in order that either party might have a counterpart, but if he waived this, it was no reason tyhy the general regulation, which might be productive of salutary effects, should be destroyed. ' Suppose a person was bound to convey hy indenture, and he tendered one executed, and offered to deliver it to the obligee, on his signing a counterpart, and he refused, could he be sued on his bond ? If a deed-poll is to have the same effect by the statute of enrolments, as an indenture, he certainly might,
    A deed-poll cannot be said to be an indenture, even if it begins with the words, “ this indenture.” Co. Litt. 229. a. 5 Rep. 20. b. It has, in other respects, not so high an effect, for on a lease by a deed-poll, a man may plead nil habuit in tenementis, but he cannot to an indenture. 2 Raym., 1154. 1 Stra. 611. 2 Stra. 818,
    
    The statute of uses introduced a new species of conveyance, by bargain and sale, and the statute of enrolments was made by the legislature, who had power to enumerate the requisites. They knew there was a distinction between deeds poll and deeds indented. If they meant not to discriminate them, then the word indented is of no signification, though it has a known legal construction. Other statutes require deeds to be indented, viz. 32 Hen. VIII. c, 28. which enables ecclesiastical persons, and husband and wife, to make leases of the wife’s land; also 13 Eliz. c. 7. which authorizes commissioners to make sale • of bankrupts’ estate ; also 43 Eliz. c. 11. for draining wastes, &c. These statutes require the conveyances and contracts to "be by indenture, and that they must be indented. Vide Co. Litt. 44. b. Hargrave's Co. Litt. 44. b. refers to Bac. Abr. tit. Lease, letter E. s. 2. See also Finch's Law, 110. 1 Wood's Convey. 482. 484. 685, 686. 7 Vin. 415. pl. 13. So is the law on 5 Eliz. c. 4. which requires infants to be bound by indenture. 1 Settlem. Cases, 284. 417. Burn's Just. 55. Adj. Cases, 93. The statute 3 W. £2? M. c. 11. made a binding by indenture and habitation, a settlement. The requisite of an indenture could not be dispensed with, and that occasioned the interposition of parliament. 31 Geo. II. c, 11.
    A bargain and sale must be enrolled before a Court of Justice, which implies that it must be acknowledged. . Co. Litt. 225. b. 7 Fin. 414. pi. 2. Lili. Convey. 421. All conveyances, except by bargain and sale, whether to pass a use or a freehold, were to be by deed, except where there was an actual transmutation of the possession, by livery of seisin. There could not be even a covenant to stand seised, without a deed. 12 Mod. 162. Wood’s Convey. 647, 648. The form of the acknowledgment shows it should be indented. Lili. Convey. 21. Wood’s Convey. 655. It is not necessary that a counterpart be taken, or that both parties sign and seal an indenture. Co. Litt. 229. a. 231. 5 Co. 23. Wood’s Convey. 481.
    
      J. T. Chase, for the plaintiff.
    The deed in this case, is a deed-poll, and not indented. And if it operates at all, it must operate as a bargain and sale. A deed-poll is that which is plain, without any indenting, so called because it is cut even, or polled. Co. Litt. 229. A deed-poll was called, charta de una parte. Co. Litt. 143. b. A deed indented, is when the deed is indented, or cut unevenly, or in and out on the top or side, answerable to another, that comprehends the self-same matter and form. Co. Litt. 229. 1 Wood’s Convey. 481. It cannot be a deed indented, or operate as such, unless it is actually indented; for if it begins hcec indentura and is not indented, it is no indenture, because words cannot make it indented. Lill. Convey. 21. Co. Litt. 143. b. 229. 5 Co. 20. Style’s case. 1 Wood’s Convey. 480. 2 Lnst. 672. If the words, this indenture, are omitted and it is indented, yet it is an indenture in law. Co. Litt. 227. 1 Wood’s Convey. 480. 5 Co. 20. 2 Lnst. 672. An indenture is sometimes bipartite, tripartite, &c. and sometimes a counterpart is taken by each party. 1 Wood’s Convey. 480, 481. Co. Litt. 229. It is not necessary that a counterpart be taken, or that both parties sign and seal one indenture. Co. Litt. 229. 1 Wood’s Convey. 481. Every deed that is pleaded, shall.be intended to foe a deed-poll, unless it be alleged to be indented. Co. Litt. 229. 1 Wood’s Convey. 481. In all the forms of pleading, when a bargain and sale is pleaded, it is alleged to be indented. Vide Pleadings, 1 Co. 21. 116.
    At common law, a bargain and sale might be by parol, for a use was raised thereby, and the statute 27 Hen. VIII. c. 10. transfers and unites the possession to the use. 2 Inst. 695. 162. Cro. diz. 345. 1 Bac. Abr„ 276. Gilb. Uses, 87. The statute of 27 Hen. VIII. c. 10. passed the possession to the use, so that a bargain and sale, although by parol, became a complete conveyance of the freehold and inheritance, before the statute of enrolments. 27 Hen. VIII. c. 16. 2 Bl. 327. 337, 338. The statute of 27 Hen. VIII. c. 16. is confined to a deed of bargain and sale. No conveyance but a bargain and sale could be, at common law, by parol, unaccompanied with acts of notoriety, which is supposed to be the reason why the statute did not comprehend other conveyances. The bargain and sale being a secret conveyance, was liable to be used as an engine of fraud and injustice, and to guard against these mischiefs, the statute of enrolments was made, which required writing, indenting, sealing, and enrolling, and as a consequence of the latter requisite, acknowledgment. No deed can be enrolled, unless it be duly and lawfully acknowledged. 7 Vin. 414. Lill. Convey. 21. Co. Litt. 225. The makers of the statute of enrolments, had a right and power to require what qualifications they thought proper, to make a deed of bargain and sale valid, and they might have adopted any others, instead of those specified in the statute.
    If a deed is indented, signed and sealed, by the grantor, &c. it is good, although the counterpart is not signed by the grantee. Co. Litt. 229. A counterpart is proper in many cases j 1st. Where there are stipulations or covenants for the benefit of the grantor, &c. for formerly, when a title or benefit was claimed under a deed, it was pleaded with a profert, arid the counterpart was sufficient; 2d. For detecting rasures and interlineatiofts jn t^e original, which might operate to pass a greater estate, and other lands than was intended by the grantor, &c. 3d. For preventing a fraudulent deed being imposed on the grantor, as the original, by producing the counterpart, and comparing it with such fraudulent deed. Such precaution is for the benefit of the grantor, but his waiving or not taking a counterpart, is his own fault, and will riot invalidate the deed. Indenting is Used to- ascertain the identity of the conveyance, by the Sameness of the cutting. Harg. Co. Litt. 143. note.
    It might be the intention of the makers of the statute of enrolments, iii requiring indenting, to guard against the mischiefs of erasures and interlineations, and the substituting a fraudulent deed in the place of, or as the original. Whatever might have been the reasons which induced the legislature to require indenting, as a requisite to give validity to' a deed of bargain and sale, is not material, and ingenious men might suggest reasons which never occurred to the makers of the act.
    Indenting being required, be the reasons what they may, it must be complied with; for without it the deed can have no efficacy or operation, as a bargain and sale, and it is so held by every authority, and writer on the subject, since the making of the statute. 2 Inst. 672. 674. Shep. Touch, 222, 223. 1 Shep. Assur. 283. 1 Bac. Abr. 273. 276. 2 Bl. 338. Gilb. Uses, 90, 91. 87, 88. 3 Lev. 39. Bridal’s Convey, vol. 2. 157. 160. Lill. Convey. 15. note. 1 Wood, 654. 482. Lill. Rep. 23. Com. Dig. 543. 1 Cunningh. tit. Bargain and Sale. The fprm of pleading is evidence that the law is so. If a deed is pleaded, it is intended a deed-poll, if it is not alleged to be indented. Co. Litt. 229. In pleading a bargain and sale, the deed is always alleged to bé indented. 1 Co. 21. 116. 109.
    
      There are many other statutes which require deeds to he indented. The statute of 32 Hen. VIIL c. 23. which enables ecclesiastical persons, tenant in tail and husband and wife, to make leases by writing indented under real, tor term of years or for life. To make good leases under this statute, the lease must be by deed indented, and ttot by deed-poll or by parol. Harg. Co. Lift. 44. 2 Bac. Abr. 536. 1 Wood’s Convey. 484. 482. 686. Vide 13 Eliz. c. 7. s. 2. which authorizes the commissioners to sell the lands, See. of a bankrupt by deed indented and enrolled. 1 Wood, 96. A bargain and sale of a bankrupt’s estate must be by deed indented and enrolled. 1 Wood, 482. 7 Vin. 415. pl. 13. By 43 Eliz. c. 11. s. 3. commoners may convey their right of common in waste lands, by writing indented, &c. 1 Wood’s Convey. 482, 483. 5 Eliz. c. 4. s. 43. a person within age of twenty » one, bound apprentice by indenture, shall be obliged to serve, See. Cess. Cases, 284. case 222. An infant can be bound no other way than by indenture, as 5 Eliz. c. 4. directs ; and because the deed was not actually indented, although it began this indenture, 8cc. the Court held he was not an apprentice, and the plaintiff was non-suited in an action for enticing away and detaining his apprentice. 1 Burn’s Just. 57.
    
    By 3 W. & M. c. 11. s. 8. a person hound an apprentice by indenture, and inhabiting in any town or parish gains a settlement therein. After the making of this statute, many persons had been bound by writings not indented, and it was adjudged that no settlement was gained thereby, and that the Qualification of indenting could not be dispensed with» Adjudged Cases, 93. King v. Inhabitants of Mawnan. The parliament interposed in this case.
    The stat. 31 Geo. II. c. 11. recites, that great numbers of persons had been unwarily bound apprentices by certain deeds, writings, ike. not indented, and enacts, that no person thus bound shall be removed. Section 2. Proviso. That no judgment, order or decree, made be»fore the 1st May, 1757, shall be made void or set aside'.-
    The stat. 29 Car. II. c. 3. enacts, that no lands, &c. shall pass-by any contract, unless the same be in writing and signed by the party. The statute requires signing as a material circumstance, which is not to be dispensed with in a Court of Equity or Law; for signing is absolutely necessary for the completion of the contract. 1 P. Wms. 770. 2 Stra. 1186. Vide 2 Vern. 475. Sel. Cas. 24.
    Whether the deed is- indented or not, is to be determined by the Court on inspection; so whether a deed is sealed or signed,, or whether a deed is enrolled, and within the time prescribed, whenever the law requires certain solemnities to give validity or effect to a deed or writing, which, when performed, must appear on the deed; the Court, when the deed is produced, will judge of them. All contracts which are executed with solemnity, ought first to be produced to the Court, who are the proper judges of all things which belong to the effect of such contract, before they can be given in evidence to the Jury to judge of the fact, whether such contract was really executed. Glib. Evid. 220. 110, 111. The reason why deeds must be shown or produced to the Court is, because it is the proper office of the Court to j.udg.e of their sufficiency, to see that they are duly executed. 4 Bac. Abr. 109. 2 Bac. Abr. 307. .The deed ought not only to approve itself, but it ought to be proved by others. 10 Co. 93.
    If the indenting is cut off, or the seal torn- off, so that the deed, when produced, does not appear to have the necessary solemnities,, the party will be allowed to prove that the deed was sealed, or was indented, and that the seal was torn off, , or the indenting cut off, by some casualty. 2 Bac. Abr. 308. Theory of Evid. 74. Cro. Eliz. 110. 1 Vez. 389. 505. 1 Mod. 4. If the. defendant in an ejectment claims title in virtue of nos- . . . session, the plaintiff may prove constant reputation m the country, that these lands were held under A. so as to give the acts of A. in evidence. 1 Ld. Raym. 310, 311. The deed itself ought to be given in evidence, and not the copy only. Gilb. Evid. 96, The copy of a record is admitted in evidence, because the record is fixed in a certain place, and cannot be had; and therefore a copy is the best evidence. Gilb. Evid. 96. Deeds are only private evidence, not confined to a certain place, but lodged in the custody of the party, and not of the law, and must be produced, for the law requires the best evidence. Gilb. Evid. 96. The producing of a copy creates a presumption that it is intended to conceal or cover some defect apparent on the deed, which would vacate it. Gilb. Evid. 96. No possible inconvenience can result from obliging the party to produce the deed, if in his custody. Gilb. Evid. 96. The allowing a copy of the enrolment when the party has the original deed in his power, will be attended with inconvenience ; fraud will be covered thereby, and defects in the execution of the deed concealed. The copy of a deed is admissible, where the deed is proved to be burnt, or proved to be in the custody of the defendant; because it is the best evidence, and there is no ground for the presumption that it is intended to cover or conceal some defect. Gilb. Evid. 97, 98. Cartk. 80.
    
    The Court never orders the original deed to be produced, where the copy is evidence, without a particular foundation, as rasure or a new entry. 1 Stra. 307. A copy of a note is good evidence, where the original is lost; but the Court must be satisfied as well of the loss as that the original note was genuine. 1 Esp. 144. 1 Atk. 446. Where the effect or the contents of a deed are proved, and the deed is afterwards given in evidence, and they disagree, there the deed shall control the other evidence. Gilb. Evid. 98. The copy of the enrolment of a deed which needs enrolment, may be given in evi¿jence> ancl js a sufficient attestation, (Glib. Evid, 99.) without proof of the sealing and delivery, 1 Salk. 280, 281. The acknowledgment of a party js good evidence pf its being sealed and delivered, 1 A«/4, 380, 381. The recital of a lease in a deed of lease and release, is''good evidence of such lease against the releasor and those who claim under him. 1 Salk. 286. 6 Mod. 44* After forty years’ quiet possession, the Jury may presume and .find a conveyance or an actual' ouster. Co.wp. 220, . If the party has a deed in his power, and refuses to produce it, the other may give parol evidence pf the contents. 4 Burr. 2488. The not producing a deed, warrants the strongest presumption, that*. if produced, it would show that the defendant, had no title, 4 Burr. 2487.
    It is contended, that since the act of November, 1766, c. 14. indenting is not necessary to give validity and operation lo a deed of bargain and sale, from the following words in the second section ,• -‘ no estate of inheritance pr freehold, or any declaration or limitation of use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance by which the- same shall be intended to pass or take effect, shall be acknowledged, ¡sc, and be also enrolled in the records, be. within six months,” &c. It is said, that if these requisites qre complied with, any estate of inheritance or freehold shall pass. To this it may be answered, that the act of 1766 is, an additional supplementary act to the act pf 1715, c, 47. It appears by the preamble of the act of 1766, that the act of 1713 die? not extend to, or regard smy conveyances -but deeds of bargain and sale; that the good end and purposes of the act of 1713, were eluded by the use of feoffments, lease and release, &c. and that, there should be a general registry of all deeds.
    
      A deed of bargain and sale is not within the words ot intention of the act of 1766, which is proved by the title, the preamble, and the general purview of the act. The mischiefs experienced and complained of were, that creditors and purchasers were insecure; titles of lands were not preserved; deceits were practised by mortgagors ; and pretended titles were purchased. These mischiefs arose from feoffments, lease and release, &c. because they were not recorded or registered. They did not arise from the use of bargains and sales. The intention of the legislature was to remove these mischiefs. This was to be done by making it necessary to enrol those deeds from whence the evils resulted. The intention was not to take away, but to superadd solemnities. The taking av/ay the circumstance of indenting, could not have any tendency to suppress the evils complained of.
    The sections 7. and 8. in the act of 1715, are in substance the same with sections 2, 3, and 4. in the act of 1766, from whence it may he concluded, that those provisions in the subsequent act, do not comprehend a deed of bargain and sale. Section 5. in the act of 1766, proves undeniably, that the deed of bargain and sale is. not within the act, because a deed of bargain and sale is particularly mentioned in that clause, which was unnecessary, if it was comprehended within the words of the second section.
    
      Second Question. Under the act of 1782, c. 23. can an estate-tail or a remainder in tail be barred by the last will and testament of the tenant in tail ?
    Prior to this act of assembly, a common recovery or a fine was necessary to bar an estate-tail. But by this act, an estate-tail may be granted, bargained, sold or conveyed, by such form of conveyance or assurance as a fee-simple may be granted, bargained, sold or conveyed, and that every such grant, bargain, sale and conveyance, shall be good against all persons whom the grantor% bargainor or vendor, could bar by common recovery.
    
      An estate tail is not barrable by will, neither is a will within the words or intention of the act. There is nothing said of a will, nor are there any words used which are properly applicable to a will. If the legislature had intended that a will should bar an estate-tail, they would have mentioned it, and would not have cautiously avoided using any words which are applied to wills. The design of the legislature was to make the mode of barring estates-tail more easy and less expensive. They have superadded several modes to the common recovery, and the specifying particular modes, is an exclusion of all others. The words “ grantor, bargainor or vendor,” are not properly applicable to the maker of a will. Testator and devisor are the words used to designate the maker of a will. A will does not take effect until the death of the testator. On his death, the right of the issue in tail, or remainder-man per formant doni, attaches, and will be preferred to any right derived under a will. A surrender of a copyhold will bar an estate-tail. A surrender to the use of a last will, will bar, because the estate passes by surrender, otherwise, if it passed by the will. 2 Vez. 603, 604. If one joint-tenant makes a will, the other joint-tenant shall take as survivor, and not the devisor, because the right of survivorship attaches on the death of the joint-tenant, and shall be preferred.
    Smith, for the defendants.
    If only the form of indenting be wanting to the parchment or paper, that is not material; for it might even be done in Court, and therefore no exception is now taken on so trifling an omission. 3 Bac. Abr. 336. note.
    Judges have power over statute laws, to mould them to the truest and best use, according to reason and best convenience. 19 Vin. Abr. 528. Hob. 346. Neither reason nor convenience can require the mere form of inf-denting at this day.
    
      Though it is true, as a general rule, that the preamble of a statute is the key to open the minds of the makers as to the mischiefs which are intended to be remedied by the statute, yet this rule must not be carried so far as to restrain the general words of the enacting clause by the particular words of the preamble. 4 Bac. Abr. 645. 1 Bl. Rep. 95. 8 Mod. 144. 1 P. Wms. 320. 2 Stra. 1211. 7 Geo. I. c. 31. 3 Wils. 271. Cowp. 540.
    If the act of 1715 must be adhered to, and the act of 1766 does not relate to bargains and sales, then all bargains and sales must be in writing, and could not be printed. See 2 Inst. 672. 7 Vin. Abr. 411.
    If is the intention of the act of 1782, to give the utmost latitude to conveyances. It does not say that the person seised of an estate-tail, shall have power to convey by any particular grant or assurance, but by any manner and form of conveyance, as any person seised of an estate in fee-simple may convey.
    In the construction of statutes, the true reason and remedy is to be considered, and Judges must always make such construction as will suppress the mischief, and advance the remedy; and to suppress subtle inventions and evasions for continuing the mischief. 3 Co. 7. b. Estates-tail were mischievous, and occasioned many inconveniences and difficulties. By them children were rendered disobedient; farmers were ousted of their leases made by the tenants-in tail; creditors were defrauded of their debts ;• innocent purchasers were deprived of lands they had fairly bought. They were justly branded in England as the source of new contentions and mischiefs unknown to- the common law, and almost universally considered as- the common- grievance of the realm; and the reason which prevented the repeal of it, was the attachment of the nobility to it, because it prevented their family estates from forfeiture. 2 Bl. Com. 116. Pigot, 5, 6, 7.
    
      That a devise is a form of conveyance, see 1 Burr. 92, 93. Shep. Touch. 1, 2. 50. Bac. L. Tracts, 147. 152. 2 Bl. Com. 294. 373. 378, 379. 382. Cowp. 90. 1 Bl. Com. 102. 1 Burr. 429. A devise is a breach of a condition. Cro. Eliz. 60. Popham, 106. A devise is sufficient to bar the entail of the trust of a copyhold estate. 2 Fern. 585.
    Chase, for the plaintiff.
    The act of 1715, c. 47. requires a bargain and sale to be indented and sealed. The act of 1773, enables a tenant in tail to bar by deed, instead of a common recovery. The Court may determine, on inspection, whether the deed be indented or not; it is an object which the senses may discern, without evidence. What amounts to an indenture is proper for the Court to determine, and who did the act is for the Jury to decide. What is demonstrable to the senses admits of no further proof. Chance or casualty cannot make an indenture. There cannot be an indenture unless it be actually indented. Vide note in Co. Litt. 148. The Court, and not the Jury, formerly determined, that the bare writing (seal) on the paper, was a seal. If there be but two witnesses to a will of real estate, no matter how well the will be authenticated, the will is not evidence, because the law requires three witnesses. If this deed is good, all deeds on uncut paper are indentures, and that is saying that the word indenture in the act of assembly, shall have no effect. The legislature may direct what ceremonies they please to a deed, and they cannot be dispensed with. If deeds were records, there could be no allegation against them ; but as they are, nothing can be averred in support of what does not appear on them, unless to prove the legal solemnities were once there. 1 Sess. Cases, 417. If one ceremony can be dispensed with, why may not others ?
    
      Stone, for plaintiff.
    Indenting is a necessary constituí eftt part of a bargain and sale. The requiring the cereittony of indenting was a wise provision to detect forgeríes, and it is not the less useful because people are too negligent in using the advantage allowed them by tbe law. If indenting is always to be left to the Jury, the Court can have no control over them as to a legal question. So if a jury are to determine if a deed has a seal. Suppose a writing on wood, stone, or slate, was offered in evidence.
    Where the husband, after marriage, got the deeds of settlement into his hands, out of the custody of the wife, and cancelled them and took off the seals; on proof of this, the Court permitted the cancelled deeds to be read in evidence. Hetley, 138. A deed lost, may be proved by showing that it once existed, and that it is lost and cannot be come at. 1 Vez. 38-9. To every deed two things arc necessary; that it be sufficient inlaw, which is called the legal part, because the judgment of that belongs to the judges; the other concerns matter of fact, that is, whether it be sealed and delivered as a deed, and the trial thereof belongs to the country; and therefore every deed ought to approve itself, and the Court, upon the view of the deed, shall determine, whether the wbrds of it are sufficient in law, whether it be not raised or interlined in material parts, &c. 10 Co. 92. The Court being the tribunal, they must necessarily judge of the evidence offered to show that a deed has all the requisites. It would be a strange distinction, that the tribunal of judging should be altered according as the matter comes before the Court, on evidence or in pleading. 4 Co. 38. Belamy's case. Latch. 226. Palm. 402, 403. Sty. 459.
    If one solemnity be disregarded in the executing of a deed, others also will, such as the affixing the seal and writing. Indentures operate as estoppels in some cases; deeds-poll do not. But say that indenting is not necessary, and this rule will be destroyed. Yelv. 201. The paper being rough at the edges, affords no presumption ' that it,ever was indented, because an indenture is smooth, though in waived lines. The statute of frauds requires contracts for lands to be in writing, and signed by the party. These circumstances, required by the statute, ^ ' can in no case be dispensed with. 1 P. Wms. 770, 771.
    A devise is not a conveyance under the act of assembly. The will of a joint-tenant is not good to convey his land, though the jointure was severed before his death. The statute of 34 Hen. VIII. has expressly excluded all devises by joint-tenants. 1 Bl. Rep. 476. 3 Burr. 1497. 2 Vez. 602. Suppose a tenant in tail was bound to make a conveyance, would a devise be a performance of his obligation ? If the act of assembly intended to include a devise, why does it not specify it, as it does grants and bargains and sales. The act could ■not have intended to alter the operation of the law, so as to let an estate-tail be transferred by an instrument, which would operate only after the death of the tenant in tail. The intention was, to give his transfer of the estate the same effect as a common recovery would have, not a greater. Could any recovery be suffered in such a manner as to convey the estate-tail, after the tenant in tail’s death ? The words grantor, bargainor, and Vendor only,- and not devisor, are inserted, and the preamble of the act shows, that the object was to substitute, deeds instead of common recoveries. If a man is bound to convey, would tendering a will save him from the penalty ? No. But bis heir could not be sued, for it can be no' conveyance till his death, and then the issue in tail will take the land. To say that the tenant in tail may transfer his estate by a devise, is vesting a fee-simple in the tenant in tail, and not regulating the transfer of an estsite-tail. A will is not a deed. 1 TVils. 178, A man cannot convey to his wife, but may devise to her, because it does not take effect till after his death. But.if a will was ip all respects to be likened to a conveyance, he could not make such a devise. Under the act of assembly, there must be some act to turn the estate-tail into a fee-simple, and that act must immediately pass the estate from the grantor. Statutes ought to be construed, as near as possible, on common law principles; therefore, though the statute de donis says a fine levied of an estate-tail shall be void, yet it is construed to work a discontinuance, because illegal alienations in other cases had such an effect.
    
      Z. Hollingsworth, for plaintiff.
    Where a legal solemnity is necessary to constitute an act, such legal solemnity must appear to the Court to have been executed, otherwise the act cannot be admitted in evidence.
    The legality of evidence must be always offered to the Court, and the sufficiency of evidence, so far as it tends to a question of legality; and this legality is t‘o be considered under two heads ; 1st. The applicability of evidence ; 2d. As to its legal requisites. The first applies to cases where there is no defect in the evidence, considered in the abstract, but it is rejected on account of its not being pertinent to the issue. This the Court determines. Under this head are the several cases of variance in assumpsit, trover, &c. The second is where the evidence offered might be applicable, if it were not in itself defective, and, therefore, the objection does not arise from its applicability, but for the want of some requisite of legal institution. For example : if a witness is produced, who is interested; if hearsay testimony is offered, &c. Here the matter to be related might be pertinent, but the legal requisite of disinterestedness, m the first instance, and the want of the solemnity of an oath, in the second, would be such objections, that the Court would not suffer the testimony to be given.
    It would be a strange mode of arguing, to say that the Jury should judge whether these legal requisites are wanting, and that they ought to determine whether the witness was interested, or declared the matter on oath',though the contrary is- fully proved to the Court. And Court should direct the Jury to- credit or reject ^le testimony, as- they believed or disbelieved the facts on which the objections were grounded.
    * As to this second division of evidence, that of the existence or non-existence of legal requisites, it does not relate to the applicability of the matter offered, but its non-admissibility, for want of such legal requisites. As the principle of the objection is grounded on matter of law, and the instrument on which the objection is made, is produced, it is determinable by the Court. Thus in the cases püt, of a paper without seal, a will with only two witnesses, a deed not stampt, &c.; there,- if it appears by the writing produced that the solemnity re» quired is Wanting, the Court will say it is not evidence1. The fact of the existence of a legal ceremony, and of its having existed, are different; so its existence and its appropriation are different facts, the first the Court are t© determine, the Jury the latter.
    Evidence,- ex vi termini, imports the making something evident; but how can a thing be made evident by pi'oving its non-existence. At this rate, any thing upon ' earth may be given in evidence, and he who has the greatest powers of eloquence, or a popular subject, or weak jurymen, will expect to succeed coxitrary to- every principle of law. The paper is to prove something ox-nothing ; if nothing, the producing of it is idle ; if something, what is it ? That it was ixxdented. But how can that be proof of a fact, which carries on the very face of it evidence to the contrary. If the law directed that all conveyances should be written with black ink, as making the most permanent impression, could a deed written with red ink he offered in evidence, because the Jury xrxightthink it black ink? No evidence should be offered that cannot have any effect, or that will produce an effect contrary to what the law requires. A deed not indented, cannot be of any effect to prove a deed indented ; and a deed not indented contradicts the supposition that it was. It is to the last degree idle, to offer any testimony respecting a thing self-evident. It can neither receive addition nor diminution by other evidence. Where a thing is self-evident, it is the highest evidence that either law or reason acknowledges. Demonstration is the next evidence. Gilb. Evid. 2. To admit proof to the contrary, and be regulated by that proof, without regard to the thing itself ¡ would be rejecting the strongest evidence, to be governed by the weakest. This would be as absurd as shutting out the light of the sun, that we might have a supposed superior illumination from a taper. But here there is not even any evidence, so that it would be like shutting out the light of the sun, that we might see the better in the dark.
    They say the deed is indented, and that the Jury are to determine it on inspection. The same might be said of a seal; and any little protuberance or cavity produced in the manufacturing of the paper, might, with the same propriety, be contended to be a seal, and be left to the Jury to find it. This is saying that the provision of indenting made by the law, shall be a nullity, as scarce any paper is to be found without some little unevenness. If the Jury are to judge by inspection, then the thing must carry evidence one way or the other, and are not the Court as competent to discover it as the Jury? If a deed is not enrolled, it is not evidence, and yet it might be, that it did not appear on the face of the deed that it was enrolled. This case is more strong, because it could not be indented without its appearing, so there would be no reason for presumption.
   Harrison, Ch. J.

cited 3 Atk. 151. to show that the act of 1766, does not alter the provisions of the act of 1715, as to indenting. Also, Cowp. 267. 2 Vez. 634. 3 Atk. 161.

The Court were of opinion, that indenting was indispensable. That the deed couldnot operate as a covenant to stand seised, for want of a proper consideration. That devises are not a m0(je 0f conveying estates-tail, given to tenant in tail, by the act of assembly, such act having the words grantor, bargainor, and vendor, and no words to show that devisor was meant to be included. And gave judgment, on the special verdict, for the plaintiff.

(Harrison, Ch. J. atid Goldsborough, J.)  