
    *Fiott & als. v. The Commonwealth.
    
    July Term, 1855,
    Lewisburg.
    i.Continuances — Refusal of.— Under what circumstances it is error to refuse a continuance of a cause.
    2. Allens — Real Estate of — Case at Bar. — A subject and citizen of Great Britain purchased land in Virginia in 1793, and he lived until 1818. By the treaty of 1794 between Great Britain and the United States, he was entitled to hold the land; and no proceedings having been instituted during the war of 1812 to escheat it, that war did not divest his rights but tbe land descended on his death to his heirs.
    
      3. Escheat — Evidence—Copy of improperly Recorded Deed.— In a case of escheat between the heirs of the alien and the commonwealth, both parties claiming under the same person, and the inquisition referring to a deed to the alien for'the land, as recorded in the county of K, an office copy of said deed is evidence for the heirs, though it was not recorded upon proper proof.
    On the 12th of March 1831, an inquisition was taken before the escheator of Cabell county ; and the jury having been charged to enquire what lands and tenements John Piott, late of the city of London and kingdom of Great Britain, merchant, now deceased, died seized of ; whether he left any heirs, or made other disposition of said lands in his lifetime; and whether the said John Piott was an alien at the time of his death; they found that the said John Piott, late of the city of London, long before his death, was seized of a tract of land lying in the county of Cabell, containing about eight hundred acres, being part of a tract containing two thousand and eighty-four acres, conveyed to the said John Piott by Charles Vancouver; as by deed dated the 27th day of July 1793, now of record in the County court of Kanawha county, would more fully appear; and being so seized, the said John Piott, on the -day of-- 1818, *died; he the said John Piott at the time of his death being an alien.
    This inquisition was returned into the Circuit court of Cabell county ; and at the April term 1833 of that court, John Piott, John EJde and Philadelphia his wife, John Vaughan and Charles Vaughan, who claimed a freehold in the said lands, appeared by their attorney, and after craving oyer of the inquisition, filed a demurrer thereto, in which the attorney for the commonwealth joined. They also filed their traverse of the office found; and time was allowed the attorney for the commonwealth to reply or demur thereto. And it was ordered that the es-cheator of Cabell county be summoned to appear on the first day of the next term, to defend the rights of the commonwealth.
    At the September term 1833 of the court, an order was made authorizing the traversers to take depositions in or near the city of London, before the American consul at London, or the secretary of legation of the United States. At the September term 1836, the attorney for the commonwealth had leave to withdraw his joinder in the demurrer ; and on his motion, the said demurrer was stricken out, as having been improvidently received. The plaintiffs then moved for leave to withdraw their traverse ; and in lieu thereof to file their monstrans de droit, which was allowed ; and the attorney for the commonwealth took time to plead, reply or demur ; and the cause was continued. At the term of the court the plaintiffs were allowed to withdraw from the papers their monstrans de droit, and file an amended one ; and the attorney was allowed until the first day of the next term to plead, reply or demur. At the next term of the court the attorney for the commonwealth craved oyer of the deed of conveyance from Charles Vancouver to the said John Fiott, whereof mention was made in the monstrans de droit, and demurred generally to the monstrans de droit; *and the plaintiffs joined in the demurrer. The cause was from thence regularly continued until the May term 1839, when the plaintiffs had leave to withdraw their joinder in the demurrer; and also to withdraw the paper of which oyer had been craved by the attorney for the commonwealth, and to file in lieu thereof the parchment copy purporting to be the original conveyance of the 27th of July 1793, from Vancouver to John Fiott, Charles and John Vaughan. And the attorney for the commonwealth had leave until the next term to change the pleadings on her part, so far as he might deem it necessary by reason of the substitution aforesaid.
    The monstrans de droit as amended, after insisting that the inquisition of escheat was insufficient in law, sets out that John Fiott and Fde and wife are the heirs at law of John Fiott deceased, and as such capable of taking and holding the land in the inquisition mentioned ; and that Charles and John Vaughan are citizens of the United States. That it is not true, as stated in the inquisition, that the land was, on the 27th of July 1793, conveyed by Vancouver to John Fiott deceased ; but that it was conveyed to him and said Vaughan. That it is not true that Fiott was seized of the land ; but that he and the Vaughans were jointly seized. And that it was not true that at the time of the death of John Fiott he was such an alien, within the meaning of the laws and treaties of the United States and the laws of Virginia, as to be incapable by reason thereof to hold lands in any of the United States ; but that he was at the time of acquiring seizin of said lands, and up to the time of his death, a citizen of ffondon in England, and a subject of the king of Great Britain, and that by the treaties between that king and the United States, the rights and interests of the said John Fiott were preserved to him, and his claim to seizin of said lands recognized *and declared to be good and valid. And they further averred that John Fiott died after the ratification of the treaty of 1794, and that he left at his death the plaintiffs John Fiott, and Philadelphia Fiott who intermarried with John Fde, his children and lawful heirs, capable of inheriting said lands ; and to whom the said lands descended, and in whom the title was vested on the death of said Fiott, and remained vested in them in common with the said Vaughans, at the time of the pending of the inquisition aforesaid.
    At the October term 1839, the attorney for the commonwealth withdrew his demurrer, and replied generally to the monstrans de droit, and issue was thereupon joined ; and by consent the cause was continued. At the April term 1840, the death of Charles Vaughan was suggested ; and in December a scire facias was issued to revive the suit in the name of his heirs : And at the April term 1841, the suit was revived. At ttífe April term 1842; the death of John Vaughan was suggested, and in May a scire facias was issued to revive the suit in the name of his heirs ; and at a special term in November the suit was revived.
    At the April term 1843, the plaintiffs moved for leave to amend their monstrans de droit, which was refused ; and the cause was continued at their costs; but with the express notice to them and their counsel, that after the unexampled delays in preparing the cause for trial, no further continuance could take place oil account of the absence of Apperson, their agent, or for the failure to take the necessary depositions, or to have proper parties before the court. And if unfortunately a continuance should be again asked for, it must be supported on strict legal grounds, fully verified by affidavits, and accounting for past neglects.
    At the April term 1844, it was ordered that the attorney for the commonwealth do appear here on the next Wednesday to show cause why the inqriisition *should not be quashed for errors apparent on its face. At the September term an order was made discharging the rule ; and the plaintiffs excepted. And in October 1846, by consent, other commissioners' were authorized to take the depositions in Uondon.
    In April 1847, the cause was called for trial, when the plaintiffs moved the court for a continuance, which was refused; and they excepted. The case was then tried, and there was a verdict and judgment for the commonwealth ; the court having overruled a motion for a new trial.
    Upon the molion to quash the inquisition, the plaintiffs, after deducing the title to the land from the patent by regular conveyance to Vancouver, introduced a deed bearing date the 27th of July 1793, from Vancouver to John Fiott and Charles and John Vaughan, conveying the land to them, from which it appeared that Fiott paid for the land, and the Vaughans only took in trust for him. The acknowledgment of this deed is certified by James Sanderson, styling himself lord mayor of Uondon, buf there is no seal to it. They proved that Charles and John Vaughan were citizens of the United States, and the parties in whose names the suit was revived are their heirs. They also offered to introduce two depositions taken upon interrogatories, before the American consul at London, at the time but not at the place designated in the notice, for the purpose of proving that the plaintiffs John Fiott and Philadelphia Ede were the children and heirs of John Fiott deceased ; that Philadelphia was married to John Éde, and that John Fiott the eider died in 1818: And the proof is conclusive if true, of which the record shows no reason to doubt. These depositions were taken in February 1844. But the attorney for the commonwealth objected to the depositions, on the ground that they were not taken at the place designated in the notice ; and the court sustained the objection, and refused to read them.
    *On the motion for a continuance of the cause, the plaintiffs proved, to the satisfaction of the court, that Mr. Apper-son, who was the agent of the plaintiffs, lived in Mount Sterling, Kentucky; and that directly after the last term of the court, the counsel for the plaintiffs; who lived in Charleston, Kanawha, wrote to him to make arrangements to have the London depositions retaken, and that Apperson did not answer said letter. That the counsel was absent from home for six or eight weeks, but again wrote to Apperson early in January 1847, apprising him that one hundred dollars had bad been placed in the hands of Prime, Ward & King of New York, to obtain a bill on London to defray the expenses of taking the depositions (this being the cost of taking the two depositions in London) ; and that said counsel immediately gave notice to the escheator of Cabell that the depositions would be taken at a certain place in London on the 27th of March 1847, and had taken the other necessary steps to have the depositions taken: but if taken, they had not arrived.
    They also offered the depositions of the same witnesses twice taken in this cause, which the attorney for the commonwealth had apprised the counsel of the plaintiffs he would object to being read on the trial of the cause ; and they offered that if the attorney would agree to the reading of either of the said depositions, they would go to trial; which offer the attorney rejected.
    It was also known to the court that the cause had been continued before the last term, that the plaintiffs might take these depositions; and that at the last term the court refused to continue the cause any longer for the purpose of taking the deposition ; but it being suggested that the counsel for the plaintiffs had some important papers in the cause which he had forgotten and had left in Kanawha, the court laid it over until the last Friday of the term ; but when that *day arrived, the court was occupied in a cause which took up the balance of the term. And upon this state of facts, the court refused either to continue the cause or to pass until the latter part of the term, in order to see whether the depositions might not arrive during the time.
    On the trial of the cause the plaintiffs having traced the title under which they claimed from the patent to Charles Vancouver, then offered in evidence an original deed from Vancouver to John Fiott, Charles and John Vaughan, bearing date the 27th day of July 1793, and purporting to be acknowledged before James Sanderson, lord mayor of London. The certificate was without seal; and though it stated that he was lord mayor of London, there was no other evidence of the fact. ' The attorney for the commonwealth objected to the introduction of the deed as. evidence, on the grounds that there was nothing to show that Sanderson was lord mayor of London, and because the deed was not a recorded, deed in Virginia. The defendants then produced to the court an order of the County court of Kanawha, made July 7th, 1794, directing a deed from Vancouver to Fiott and the Vaughans to be admitted to record, and also an office copy of the deed, and asked the court to examine the order and deed, and decide whether it had not been recorded in Virginia; which examination the court made, but was not satisfied that it was the same deed, because of some discrepancies between the original deed offered and the copy produced, and excluded the deed from the jury.
    The plaintiffs then proved that John and Charles Vaughan resided in the United States, and that the persons in whose names the suit was revived were their heirs. And they thereupon moved the court to quash the inquisition for errors apparent upon its face : which motion the court overruled.
    *The plaintiffs then asked for instructions, which were refused; but it is unnecessary to state them.
    After the verdict was rendered, the plaintiffs asked for a new trial, on the ground that they were improperly forced into trial; and of surprise by the rejection of the deed offered in evidence by them. But the court overruled the motion; and they excepted. On the application of the plaintiffs, this court granted a supersedeas to the judgment.
    Price and Fisher, for the appellants,
    insisted :
    1st. That the inquisition should have been quashed, because it did not respond to the enquiry whether John Fiott left heirs. The inquisition found that he was a subject of the king of Great Britain ; and he was therefore upon this question to be so considered. And under the treaty of 1794 between Great Britain and the United States, his heirs were enabled to inherit land in Virginia. See the 9th clause of the treaty, 2 United States Laws, p. 476; Blight’s lessee v. Rochester, 7 Wheat. R. 535; Harden v. Fisher, 1 Id. 300; Hughes v. Edwards, 9 Id. 489; Craig v. Radford, 3 Id. 594; Orr v. Hodgson, 4 Id. 453 ; Inglis v. Trustees Sail- or’s Snug Harbor, 3 Peters’ R. 99; Shanks v. Dupont, Id. 242; State of Georgia v. Brailsford, 3 Dali. R. 1; Jackson v. Wright, 4 John. R. 75; Stephens v. Swann, 9 Leigh 404; Hubbard v. Goodwin, 3 Id. 492; 1 Tuck. Conn. 66. The land having descended to the heirs, and they being entitled to hold, it could not be escheated on account of the alienage of John Fiott.
    
      2d. That the original deed from Vancouver to Fiott was certified by the lord mayor of Hondon, and was properly authenticated to make it evidence; and therefore it was error to exclude it on the trial. Cales v. Miller, 8 ■Gratt. 6; Hassler’s lessee v. King, 9 Gratt. 115. Moreover, it was expressly referred to in the inquisition as having been recorded in the county of Kanawha ; *and it was upon that deed thus recorded, that the inquisition found that John Fiott had been the owner of the land, and based the escheat.
    3d. That the depositions which had been taken and were objected to by the attorney for the commonwealth, clearly showed that the plaintiffs John Fiott and Philadelphia Hde were the only children and heirs at law of John Fiott the elder ; and under the circumstances it was error to compel the plaintiffs to go into the trial before the depositions had been again taken.
    The Attorney General for the commonwealth,
    insisted :
    1st. That if the inquisition was insufficient in law on its face, it passed no title to the commonwealth ; and therefore it was unnecessary to quash it: If sufficient on its face, it should not have been quashed.
    He insisted further, that the inquisition was sufficient. That there were two causes for which lands would escheat: One, when a citizen dies without heirs ; the other, when an alien dies. An alien may hold lands against all persons, and against the commonwealth until office found. But when he dies his land does not descend to his heirs, but it becomes at once the land of the commonwealth without an office found; and the office is only necessary to ascertain the fact. When therefore the inquisition found that John Fiott was an alien, it was unnecessary to enquire or find whether he left heirs.
    He insisted further, that if by the treaty of 1794 an alien heir might inherit lands, that was an exception to the general rule, and need not be found by the inquisition, but should be set up by the party claiming the benefit of the exception in his monstrans de droit. This is the principle applicable to pleadings generally, and there is nothing in the statute in relation to escheats to change it. 1 Rev. Code of 1819, p. 353. See Hill’s Case, 5 Gratt. 682.
    *He further submitted, whether the treaty applied to persons who purchased land in this country after the peace of 1783 ; and whether it was not confined to those who held lands prior to that time, and adhered to Kngland. All the cases he had seen related to the latter class of persons ; unless perhaps the title of Denny Martin to Ford Fairfax’s lands.
    He further insisted, that the treaty of 1794 was terminated by the war of 1812. Vattel, book 3, § 175 ; Id. book 4, § 8. That the treaty of Ghent did not restore this provision of the treaty of 1794, upon which the plaintiffs relied; and John Fiott having died in 1818, his heirs could not inherit from him in Virginia.
    2d. He referred to the proceedings in the cause, and the great delay which had occurred in the trial of the cause, to show that the court properly required the parties to proceed to try the cause.
    3d. That the deed was not properly certified to render it admissible either as evidence or to record. To do either, it must have been certified in the usual manner in which deeds were certified by the lord mayor of Hondon. Deeds are required to be acknowledged before a court or chief magistrate of a city, because they have seals, and are accustomed to authenticate deeds and other papers. And there is no case in our courts in which it has been held that a certificate of a mayor or other chief magistrate of a city was good without a seal. In Hassler’s lessee v. King, the certificate was under seal, and therefore it was presumed to be in the usual form.
    
      
       For monographic note on Deeds, see end of case.
    
    
      
       Continuances — flatter of Sound Judicial Discretion— Appellate Practice. — A motion for continuance is addressed to the sound discretion of the trial court, and, unless it plainly appears that such discretion has been abused, the appellate court will not interfere therewith. See the principal case cited as authority for this rule in Bank of Ravenswood v. Hamilton, 43 W. Va. 76, 27 S. E. Rep. 296; Davis v. Walker, 7 W. Va. 450; State v. Harrison, 36 W. Va. 738, 15 S. E. Rep. 985; Marmet Co. v. Archibald, 37 W. Va. 783, 17 S. E. Rep. 301; Apperson v. Cabell, 1 Va. Dec. 559. See also, foot-note to Hewitt v. Com., 17 Gratt. 627; monographic note on. “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
       Escheat. — See monographic note on “Escheat” appended to Sands v. Lynham, 27 Gratt. 291.
    
   AUFRN, P.

It seems to me that under the circumstances of this case and the facts certified by the court, as having been proved in support of the motion for a continuance made by the plaintiffs at the May term 1847, that the court erred in overruling the motion and ^forcing them into a trial. The proceeding commenced in April 1833; but the issue on which the cause was tried was not made up until the October term 1839. For this delay the commonwealth was as much responsible as the plaintiffs. The time from 1840 until the November term 1842 was occupied in efforts to revive in the names of the representatives of two of the plaintiffs whose death had been suggested. At the April term 1843 the plaintiffs, upon affidavit, obtained a continuance, but were warned by the court that no further continuance would be granted unless the application should be supported on strict legal grounds. The cause was afterwards continued generally until the April term 1844, when a rule was awarded against the attorney for the commonwealth, returnable at the same term, to show cause why the inquisition should not be quashed. The cause stood upon this rule, perhaps for advisement, and was regularly continued until the spring term 1846, when the rule was discharged, as appears by an entry made at the fall term 1846; and at that term an agreement was made that depositions might be taken in Hondon, before certain officers therein named. At the succeeding term held on the 3d of May 1847, the trial was had. From this statement it would seem that although the cause had not been prosecuted with much diligence, the delays were not altogether attributable to the plaintiffs. But there are other facts showing that they were making efforts to prepare for a trial. It seems that on the 8th day of July 1841, they took in Hondon the depositions of two witnesses upon notice, before the American consul. The depositions were taken on interrogatories at the time, but it appears from the consul’s certificate they were not taken at the place mentioned in the notice ; and for this reason were objected to by the attorney for the commonwealth.

The depositions of the same witnesses were retaken, *and the same error was committed ; the American consul certifies that they were taken on the first day of February 1843 at his office in the city of lion-don, being- the day, but not the place, mentioned in the notice. To the reading of these depositions the commonwealth’s attorney apprised the plaintiffs’ counsel he would object. The plaintiffs again, through their agent residing in the state of Kentucky, proceeded to take steps to have the depositions retaken the third time. The sum of one hundred dollars was placed in the hands of persons in New York to obtain a bill on London to defray the expenses of taking the depositions, that being the real cost of taking the two depositions in this cause in London; and notified the attorney for the commonwealth that the depositions would be taken in the city of London on the 27th March 1847. But the depositions, if taken under this notice, had not arrived in this country, or been received by the clerk of the court on the 27th of April 1847, when the cause was called for trial. It further appears from the facts certified,-that some delay occurred between the October term 1846 and the April term 1847, in giving the notice and taking the necessary steps to take the depositions, owing to the fact that it was necessary to correspond with-the agent of the plaintiffs who resided in Kentucky, and the absence of their attorney from his home in Kanawha county for six or eight weeks of the time. Still it would seem that notice was given to take the depositions in time to have received them by the most expeditious mode of communication between this country and England. Whatever may have been the negligence of the parties prior to the October term 1846, they seem to have proceeded with reasonable diligence after the agreement at October term 1846. Their agent resided in another state, and some time would necessarily be consumed in corresponding with *him, and in providing the means for taking depositions in England. Applications for continuances are addressed to the discretion of the court, and much must be left to the tribunal which has the parties before it, and must determine from a variety of circumstances occurring in its presence whether applications for continuances are made in good faith, or are merely intended to protract the controversy : And even when made in good faith, a reasonable degree of diligence should be exacted. The opposite party should not be kept in court and exposed to the risk of losing his testimony by the negligence of the other side.

But in this case it does not appear that the commonwealth could be subjected to any inconvenience by a delay for a term. Under the inquisition, if regularly returned and recorded, she was entitled to the possession. The inquest of office is her evidence of title. On this she rests ; her right to the land cannot be controverted by any person who does not show an interest in the subject. According to our statute, as expounded by this court in the case of French v. The Commonwealth, 5 Leigh 512, the parties suing out the mon-strans de droit are plaintiffs, and must show a good right to the subject. Until they show their interest, they cannot be heard in opposition to the right of the commonwealth, as ascertained by the office found. And it does not appear that she was in a condition to suffer any injury from the loss of testimony of otherwise, by continuing the cause. That the application was made in good faith, is, manifest from the previous efforts of the plaintiffs to procure this testimony at a considerable expense, and the sum expended to retake the depositions the third time ; and from the offer made at the time to go into the trial, if the attorney for the commonwealth would waive the objection to the depositions.

The materiality of the testimony, if credited, is *clear. The inquisition finds that John Fiott, late of the city of London, long before his death, was seized of the tract of land in Cabell county, containing about eight hundred acres, part of a tract of two thousand and eighty-four acres conveyed to said John Fiott by Charles Vancouver, as by deed dated the 27th of July 1793, now of record in the County court of Kanawha county, will more fully appear; and being so seized, that he died in 1818, being at the time of his death an alien : and that he had made no disposition thereof in his lifetime.

The depositions prove that John Fiott was-a subject of the king of G-reat Britain ; that he died in England in 1818, leaving John and Philadelphia, two of the plaintiffs, his. children and heirs.

The inquisition shows that John Fiott acquired title to the land by a conveyance from Vancouver, dated in July 1793, and recorded in the County court of Kanawha county. An alien may take by purchase. The conveyance clothed him with the title, and no inquest or office found divested him of the title before his death. The title thus, vested in him was confirmed by the ninth article of the treaty of 1794; and upon his death in 1818, descended to his children and heirs.

It does not appear that any attempt was made to confiscate the property or divest the title of the heirs by office found during the war of 1812, or since. It is therefore unnecessary to enquire what would be the effect of the war upon such rights.

But it has been determined by the Supreme court that the termination of a treaty by war does not divest rights of property already vested under it. Society for, &c., v. New Haven, 8 Wheat. R. 464; Fox v. Southack, 12 Mass. R. 143.

Upon the exhibition of the proof contained in the depositions, the said heirs would be entitled under the authority of Hannon v. Hannah, 9 Gratt. 146, to exhibit *the copy of the deed rejected on the trial as evidence, whether properly recorded or not; as the inquisition refers to it and both claim under it; and having thus shown their interest, could avail themselves of any objection to the inquisition upon amotion to quash, or show upon the trial their claim to the land, and that the same was superior to the right acquired by the commonwealth ; as under the treaty of 1794 the lands could not be escheated on account of the alienage of their ancestor, and they were authorised to take by descent.

I think the judgment should be reversed, and the cause remanded for a new trial.

The other judges concurred in the opinion of Allen, P.

Judgment reversed.  