
    Wood vs. Grundy & Thornburgh's Lessee.
    A pot, at. from Baltimore county court. Ejectment for a lot situate in the city of Baltimore, in that part of the city called Howard’s late addition to Baltimore, and known, on the plot thereof by No-, 687, &c. The deniise in the declaration was stated to be on the 1st of January 1801» The general issue was, pleaded,
    
      The proceedings of the com» missionin’® of bankruptcy are not , evidence to prove tint act of bankruptcy committed by the bankrupt — the proceedings beings res inter ptfos prtn$ said not evidence According to the pxineiplesof the eotmntm.law,and pomade evidence, by the law®, of tbt V. which relate to this subject. « » . , , < *
    Whole the demise in a declaration m ejectment was stated to be op the 1st of January 3Pf>1, and tjte conveyance offered in evidence, under which tin? plaintiff claimed, was dated on the 23d of Ke{n nary 18C2 — Held, that an ejectment is an action to try iheripht of possession to t)u* land in controversy. The entry and otMcv, mid in the dts. laxaiiun, are fictitious, and substituted m the place of areal lease>ntiiuai entryendouster 'Ihetimi’of the demise is matiei of substance, aíul nottyjim, and .the plaintiff must show' a title in his lessors anterior to the tune of the demise, btcause without speh.titls. they comd not maike a real lease. - . 1 > • , • - ,
    In an action for the thesne proftst the plaintiff can recover profits from the time df the demise, w,rkout showing utfe, the due noeiu I t nip toncVded by it», But if Ue claims profits prior to the time of the <k mise, the deft mfant may controvert his title. ’ ' .
    The court will allow the plaintiff in t.jt ctnm.t To amend his declination, by clmnp’inp the time of the deii.jM', at any sime hi foie vex diet, on such turns as will impose no hard hips on the defindanu
    Th« second sexi'wn of the act of J809, ch 153. relative mjhe amendment oi judicial proceedings, dots BOt extend to muuers of substance,.but to i'oun ,’
    The plaintiii m < j^efrot xit grave xji evidence a grant to E L in 1673, for $ fact of land called L L; also an act ot assembly parsed m 17.->2, w'h.ieh rt cited that J E H had set forth that he was st Med and possessed of L I», tec. and diverted that b L should he <a d out pnd form part uici> t<nnt\ also that lot No 687 was part oí b L, so, claimed by J E H. and laid off as part of the said town; that, the tot w>as' conveyed by J EH to li 1), vyhenpossessed itiróm 1792 to 1796,,'when In couv* y ed it to A B, who auo possessed T until 1202, w hen he conveyed it t*> the lessors of the p.axnxjfi — behL that the plaintiff had no right to recover, there heiiig no title tedueed from the pi ¡.met t /, L L to J EH, and theie bemj* jio possession proved in A B, and those umie? whom lie claimed, suiLúent Vi'emitfe the piaipuifi to recover without sliovíug
    
      1. The plaintiff, (now appellee,) at the trial, producer] and had witnesses sworn to prove that Jlqixiki Brown, of Baltimore, merchant, \vas. a person using trade and commerce at the said place, and that he was indebted before and on the 20th ofFebruary 1802, and afterwards, to Nicholas Norris, in a sum exceeding §2000; that Norris on the 22d pf February 1802, sued out a writ of capias qd respondendum against Brown, which was returned non est. And the defendant, (now appellant,) having offered evidence to, prove that the debt due to Norris, liad n,ot become clue or payable before or at the time when the writ of capias ad resyondendmri was issued, the plaintiff further produced and showed to the court the commission, qualifications, depositions and proceedings, before the commissioners, and their judgment thereon, as, herein after mentioned, and offered to, jread the judgment of the commissioners to the jury, to prove, that Brown had committed ap act of bankruptcy before thq issuing of the said commission; and further offered to prove, that Norris, in the petition and writ aforesaid mentioned, was one and the same person, and that Brown, in the writ and judgment aforesaid mentioned, was ope and the same! person. The defendant objected to the judgment of the commissioners being read in evidence to show'that Brown, had committed an act ofbankruptey, as in the said judgment stated. But the court, (Nicholson Ch. J) was of opinion, that the. judgment of the commissioners was prima facie evidence of the bankruptcy, and might be read to the jury to Support the title of the assignees of Brown', but that if the jury should be of opinion, that the debt from Brown to Norris was not due at the time of issuing the capias ad respondendum, that then the judgment of the commissioners did po.t prove the bankruptcy. The defendant excepted.
    2, The plaintiff then read in evidence the patent for a, tract of land called Lun’s IMX granted to Edward Lixn, on the 20th of July 1673; also, an act'of assembly passed at April session 1782, entitled, t‘Ap act for an addition'to Baltimore town, in Baltimore county,” reciting, that John Eager Howard had set forth that he was seized and possessed pf a great part of Lun’s Lot, part of which had beep laid out into lots, and annexed to Baltimore-tmvñ, ike. lie prayed a law authorising other parts of the said tract to be laid out into lots, &c. The commissioners of Baltimore-town were therefore required to cause the said tract of land to be surveyed and laid out into lots, &c, at the proper cost and expense of the said Howard, &c. The plaintiff also (read in evidence the original location of said addition, mode in pursuance of said law, from the original record filed in the Mayor’s office of the city of Baltimore; and offered evidence to prove, that lot No. 68" in the said addition, on the said plot; is the same lot for which the present ejectment is brought; He also read in evidence a deed from John Eager Howard, in the said act mentioned, to Henry Didder, for the said lot, dated the 8th of October 1792; and also a deéd for the said lot from Didier to Aquild Brown, dated the 15th of April 1795. He also offered iri evidence, that Brown, in the said deed mentioned, was a person using trade and commerce at the city of Baltimore on the 19th of February 1802, and indebted t.o Norris in a sum exceeding gSOOO; and that Norris sued out a writ of capias ad respondendum against Brown, to recover said debt, on the 22d of February 1802; and produced and showed to the court the petition, commission, qualification, depositions and proceedings, before the commission of bankruptcy, and their judgment thereon; and read to the jury the judgment of the commissioners to prove, that Broten had committed an act of bankruptcy before the commission issued; and further read in evidence the appointment and qualification of the assignees under the proceedings of bankruptcy; and read in evidence the deed from the commissioners to the assignees, the lessors of the plaintiff’, bearing date the 23d of February 1802; and offered evidence to prove, that'the commissioners in the said deed mentioned Were the same persons appointed under the commission of bankruptcy; and that the lessors of the plaintiff, and the grantees in that deed named, are the assignees under the said commission, and no other or different. The defendant then offered to prove, that the debt of Norris was not payable at the time of issuing the writ by him against Brown. The court, upon the prayer of the plaintiff, directed the jury, that if they believed the debt from Brown to Norris was due and payable at the time of issuing the capias ad respondendum, in the name of Norris against Brown; and also if they believed the evidence offered by the plaintiff, that the» tlié pláintiffis entitled'to recover* The defendant except* ed.
    3. íllé plaintiff then offered evidence to prove, that ■ the lots, for which this ejectment is brought, was part of the land mentioned in the act of assembly aforesaid, (1782, Ah, 2,) so claimed by Howard, and laid off into a town, and that the said lot was conveyed by Howard to Di~ ¿litir, and was improved by Didier about teri year's ago, and (continued in his occupation and possession until he sold it to Brown, who continued in possession of the lot and premises until fhe22d of February 1802. The plaintiff then prayed the opinion ofthecdurt, and their direction to the jury, that if they believed the evidence on the part of the plaintiff, that then Brown had a legal and valid estate in the lot on the 22d of February 1802, according to the limitations in his deed. Which direction the court gave. The defendant excepted.
    4. The plaintiff then prayed th’e opinion of the court, and their direction to the jury, that the petition, commission and assignment, under the commission of bankruptcy issued agahist Brown, (which he offered in evidence,) Were competent and proper to prove the facts therein mentioned, and that if the defendant does not show title to the premises in the declaration mentioned, out of Brown, before and on tiie 22d of February 1802, that then the defendant must claim subsequent to the act of bankruptcy stated in the-commission; and if the jury so find, that then the assignment of the bankrupts effects gives title to the premises in the lessors of the plaintiff, and the plaintiff is entitled to recover. Which direction the court gave. The defendant excepted.
    0. The plain tiff further prayed the opinion of the court, ■and their direction to thq jury, that if the defendant shows no title out of the plaintiff before the 22d of February 1802, and no conveyance from him at any time since, that then the assignment under said cause of bankruptcy is evidence of title in the lessors of the plaintiff, until some title is shown out of Brown before or after that day. Which direction the court gave. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.
    The cause was argued before Chase, Ch. J. Buchanan,, Gantí. and Earle, J.
    
      
      Martin md IV. Dorsey, for the Appellant,
    in arguing $n ih a first bill of exception?, contended that the judgincut of the commissioners, under the commission of bankruptcy, was not 'prima facie evidence sufficient to prove that .Brown was a bankrupt under the bankrupt law of the United States of the 4th of April 1800. In England, under the bankrupt laws, the assignees in suits brought by them, are bound to prove every fact by viva voce evidence. The proceedings, of the commissioners are not evidence' erran in actions to recover money due to the bankrupt; they are not evidence except in actions between- parties and privies. Upon common law principles the judgment of the commissioners is not evidence for any purpose; ami the bankrupt cannot be a witness'to prove his own bank-i-«ptcy. They cited the bankrupt law of the United States, passed on the 4th of April 1800, (3 Vol. Laws U. S. 320.) Bull. N. P. 37. Cooper's B. L. 105, 173, 306, 307, 380. Abbot vs. Plumbe, 1 Dougl. 216. Chapman vs. Gardner, 2 H. Blk. Rep. 279. Bateman vs. Bailey, 5 T. R. 512. Selw. N. P. 222, 226. Vaughan vs. Martin, 1 Esp. Rep. 440. 1 Lofft's Gilb. 31, 32, 64, 65. Mann vs. Shepherd, 6 T. R. 79. Field vs. Curtis, 2 Stra. 815; and Bickerdike vs. Bollman, 1 T. R. 405.
    On the second bill of exceptions they contended, that the declaration in ejectment shows that the demise walJ laid on the 1st of January 1801, long before the title accrued to the lessors of the plaintiff, and therefore the plainiiff could not recover. They cited Berrington vs. Parkhurst, 2 Stra. 1086. Runn. Eject. 86. Bull. N. P. 105, 106, 86, 87. 2 Esp. Dig. 443. 3 Blk. Com. 205; and Aslin vs. Parkin, 2 Burr. 668.
    On the third bill of exceptions they contended, that the title set out did not give Brown a title to the lot in question; and there was no evidence that Col. Howard liad a title to the premises by him conveyed to Didiér, under whom Brovin claimed.
    On the fourth an d fifth bills of exceptions they contended, that under the bankrupt law the whole proceedings of the commissioners, not a particular part, maybe evidence for certain, purposes, but that here a part only of the proceedings had been offered and admitted as evidence.
    
      .Key, Harper and S. Chase, jr. for the Appellee,
    contended, upon the first bill of exceptions^ that the coimnissio'ners were created a court of record, and with competent jurisdiction; that'they acted judicially, and their judgment must be h.. judicial act, and sufficient evidence for the purpose for which it was admitted. They cited Burr. Settl. Cases, 136. Billings vs. Prinn & Delabore, 2 W. Blk. Rep. 1017. The King vs. Forrest, 3 T. R. 38. The King vs. The Inhabitants of, &c. Ibid 380. Cooper's B. L. 174. Darby vs. Baughan, 5 T. R. 210; and the 51st and 56th sections of the bankrupt law of the U. S.
    
    Upon the second bill of exceptions they contended, that an ejectment was a fictitious action, and may be moulded by the court for certain purposes. The demise is a. matter bf form, and is an immateriabpart of the declaration; arid besides, undér the act of 1809, ch. 153, it could be amended. They cited Doe vs. Pilkington, 4 Burr. 2449. Bennett vs. Ganby, Carth. 178. Aslin vs. Parkin, 2 Burr. 665. Small vs. Cole, Ibid 1159. Fairclaim vs. Shamtitle, 3 Burr. 1292. Oates vs. Brydon, Ibid 1895; and the act of 1809, ch. 153, s. 3.
    Upon the third bill of exceptions they contended, that the act of April 1782, ch. 2, Vefcites that Col. Howard was seized and possessed of Lun’s Lot, and directs that Lun’s Lot should be laid out and form a part of Baltimore towns and there was sufficient evidence offered without deducing title from the grantee of Lun’s Lot.
    
    Upon the fourth and fifth bills of exceptions they contended, that the 56th section'of the bankrupt law renders it unnecessary to produce more than certain papers in evidence. The assignment of the commissioners was evidence of all the facts therein stated; add it was Sufficient evidence against an intruder without title.
   Chase, Ch. J.

delivered the opinion of the court. The court dissent from the opinions of the county court as expressed in the several hills of exceptions taken in this case.

On the first bill of exceptions, the court are of opinion, that the proceedings of the commissioners of bankruptcy are not legally admissible as evidence in this case, to prove the act of bankruptcy committed by Aquila Brown — the proceedings being res inter alios acta, and not evidence according to the principles of the common law, and not made evidence by the laws of the United States, whifch relate to this subject. The opinion, therefore, of the court below cn this bill of exceptions is erroneous.

On the second bill of exceptions, the court are of opinion, that the opinion of the court below is erroneous, this court being of opinion, that it appears by the proof stated in the case that the lessors of the plaintiff below had no title at the time of the demise laid in the declaration of ejectment, but that their title, if they had any, accrued subsequently to that time.

An ejectment is an action to try the right qf possession to the land in controversy. The lease, entry and ouster, laid in the declaration, are fictitious, and substituted ip the place of a real lease, actual entry and ouster. The time of the demise is matter qf substance, and not form., and the plaintiff must show a title in his lessors anterior to the time of the demise, because without such title they could not make a real lease.

In an action for the mesne profits, the plaintiff can recover profits from the time of the demise, without showing title, the defendant being concluded by itj but if he claims profits prior to the time qf the demise, the defendant ma,y controvert his title.

The court will allow the plaintiff to, amend his declaration at any time before verdict, by changing the time of the demise, for the attainment of justice, on such terms as will impose no hardships on the defendant.

That clause of the act of last session, (Nov. 1809,. eft. 153, s. %) which lias been referred to, does pot extend to matters of substance, but to form.

It appearing on the record that the lessors of the plain-, tiff had no title to the land in question, at the time of the demise, the judgment must be reversed.

On the third bill of exceptions, the court are of opinion, that according to. the whole proof stated in the case, the plaintiff has no right to recover, there being no title deduced from the patentee of ¿Ain's Lot to John Eager Howard, and there being no possession proved in Jlquila Brown, and those under whom he claims,, sufficient to entitle the plaintiff to recover in ejectment without showing title.

7V$GM#KT BEYEKSEP*  