
    Howard vs. Moale, et al. Lessee.
    
      'I he death ofoiw* of the io-sors oll the plaintiff, in an action of ejectment, maybe*sug« gested after the jury ave sworn, and his heir; &e. need not appear, or be made a party On the question* whether or not a grant of land from the proprietary to “R M, and the heirs ofhis body lawfully begotten, forever,” created an estate tail in 11 M, and upon his cNath wuhout issue* the reversion was in thu stale standing in the place of tit ■ proprietary, notwithstanding R M’s deed barring the estate tail. Held, that no interest in the nature of a trust estate ever was vested either in , the proprietary, or in the state in the putee of the proprietary, no act having been done which could create a trust in either; and that they could only be considered as parties having a reversionary interest expectant oil the determination of the catate tail
    
      'Vim jura regalia, as attached to the person of the king in England, never did attach to the lord proprietary of Maryland
    
    Hie proprietary held the d iminion of Maryland, and property of the noil, which ho could sell anti dispose of m the same manner as any >th *r person, and subject to the same beneficiary, legal and rights, Us in the hands of other parson
    On an equitable interest being ootamed in land agreeably to the rules of the hyiA office,, the party entitled to a grant which ho could compel of the proprietary
    Appeal from the General Court The appellee, on the 5Ih of May 1801, instituted his action of ejectment for a tract of latid called David’s Fancy, situate in B ultimo fe bounty, into forty-eight separate parts, to be divided, nine parts of which were demised by John Mo ate ^ nine parts by 
      jRichard II. Moale, nine parts by Robert North 3Ioale, nine parts by Samuel 3'ioale, nine parts by Randle Hulse Moale, one part by Thomas 3Ioc.de, one part by Richard Curson, Junior, and one oilier part by Rebecca Russell. The defendant, (now appellant,) pleaded not guilty, and took defence on the plots made and returned in the cause.
    
      ^he reversionary interest of tfie proprietary; reserved in lands granted by him, might be destroyed byídeed niá'iíSbv the tenant in tail, uhder the act of June 1773, clu 1, as effectually as the reversionary right of any individual
    The state held the proprietary’s reversionary interest merely by substitution in his place, and a deed since the act of November 1782 ch 23; was competent to bar and extinguish the reversionary interese of the state
    A grant for escheat land will vélate bnckto the original gVrtnt
    A subsequent gran*;-covering land in which tire proprietary had a reversionary interest, ’ wiil operate to pass such reversionary interest
    A grant of land surveyed under a com’mon warrant, will not pass land not then liable to escheat, 4iut which afterwards becá'tfie escheat, and as such granted ttf a third person, (tifóte)
    
    and grant do, by oper law, to- the tract, Within the principle and rule of law of relation between grants and certificates
    Where the first and second gours&s of an original grant of a. tract of land called D F, are descrito* ed„as “beginning at a bounded locust tree,- being the Ñ E bounded tree of D F’s land, ^called U C;j and running by the hind of the said P, E 05 p's. to a bounded oak, then N E 350 ps. to a bounded: red oak of the said P’s lamí; and the first and second courses of an escheat grant of the sanie land "called IX F, is described as “beginning at a locust now bounded at or very near to the place where stood abounded locust: the original beginning tree of J> F, and a bounded tree of a tract of land called Ú C, formerly laid out for D P, and ronning thence with the said land E 65 ps. (it being ex* pressed in tfie certificate of the original survey to run by the land of the said P, E 65 ps. to a bound» ed oak, which cannot be found,) thence N E 238 ps still .bounding on the said land, to the N W branch of Patapsco river, (it being therein expressed to run N E 350 ps. to*a bounded red oak of the said P’s land, and the certificate of the said P’s land mentioning to run that course to a bounded red oak standing by the side of the said N W bramch, which oak is not known.”) Held, that there was no doubt or ambiguity, and that if the begining of D F is rightly located on the plots- at the termination of the twelfth fine of U C, and there is no evidence of the existence of any tree as called for at the termination of the first line of S> F, then the expressions in the escheat grant do' bind that grant to the true location of the original tract called D F; as to the two first lines thereof, so far as the second line of the original did actually extend; and that the first and second lines ol the original tract dof< toy virtue of the expressions therein used, bind those lines on the thirteenth and fourteenth lines of XJC
    Where the plaintiff has not located his escheat grant on tire plots in the cause coextensive with the location of the original tract; he caimoi give evidence to extend bis pretensions beyond the lines and limits he has given to the escheat grant; but he is estopped by tliat location from goin'g beyond the letter V, located on the piots, from whence he must run to the head of Howard?? Branch, at whatsoever point the same may be agreeably to Ins location of his pretensions;' and the location by which the defendant lias taken defence
    The plaintiff cannotgive any evidence of the lines of his'escheat grant, running otherwise than he has located them on the plots in the cause as his pretensions; but he is not precluded'from giving evidence of any other lines, as the lines of the original tract; by way of illustration; and he may sup'1 port the location of ¿is pretensions, so far as he can show that they are located within the limits of the oiiginal tiact
    From the place, where the seco; H line of a tract of land terminated, the third line thereof, viz. <sThen N N W 86- ps* to a bounded red oak, then,” ke. mfist run the number of perches expressed in the grant, and cannot in its length be increased or diminished, unless proof is made of the tVee called for, or the place where it stood
    So the fourth line, viz. “Then S W to the head of Howard's Branch, then,” fccc. must run a straight' line to the head of Hoxvard's Branch
    * A private plot of the lands rn di'pute^permittedy under certain circumstances, tobe read'hi evidence
    The course and distance expressed is! a grant of land, must always*be controlled by a call expressed therein as the termination of the course; and the following cotlvse aild distance used in the grant, viz» “N E 50 ps. to-a small branch which makerfrtltó outward narrows of the said land,” must be complied with, as nearly as they can, to strike litó branch described, a& it existed at the time of the sur» 'yey, subject to the variation of the compass on that line
    court refused to direct the jury, that the second line a tract land, vizps.; to a bounded red oak of the sa‘id u’s land,” (being the fourteenth line of that land, which tree being, lost, the place where it stood could not be proved.) must terminate at the end of 350 ps from, the it a matter of fact to lie left to the determination of the
    . The court refused to direct the jury, that an escheat grant did not pass any land’ included in the original grant, except the same was included within the metes and bounds of the escheat grant, as-particularly described; and tliat the escheat grant did nor,-by legal operation,-convey all the land iiy eluded within the original grant, unless the particular metes and bounds of the escheat grant did aU so include the same
    A deposition taken on the sui rey,-of a witness, who was absent out of the state.at the time of the {nal, was- peimiued to be read in evidence, due diligence having been used to obtain the attendance* of the witness
    The court directed: the jury, tliat they might find the true location of D F, for which the ejectment ivas 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’* pretensions beyond the location of his pretensions made on tile plots, or beyond a straight line to be drawn from the letter V to the head of Howard's Branch
    . 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 tobe drawn from the letter V, to the head of Howard's Branchy (he having located that tine of his grant in that maimer,) although those-lands. shou.d 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
    The court refused to direct the jury, tltat 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 p retenso as to prevent him from recovering'what is contained in his pretensions» within the true bear 
      non, the defendant is also estopped from saying that the true location is different from the location given by the plaintiff
    
      The jun.by then* an for which the ejectment was brought, to be from A to a, to 3, to four perches below big K the head of Howard's Branch, and then to A; they also found for the plaintiff his pretensions, (not being to the extent of the said location.) to be from A to a, to V, to four perches below big F, the head of Howard** Branch, and then to A, and that the defendant was guilty of the trespass complained of within the said pivteusKms, andnotgiiilty as to the residue of the_ trespass complained oí in the residue ot the land. Held, that there was no uncertainty m ‘he verdict '
    A mortgage of lands to a British subject before was act of confiscation,but it was protected by the British treaty, and the mortgage property was ■creed to be sold to pay the mortgage debt.
    The plaintiff) at the trial court, in May 1804, made his claim and pretensions for a tract of land called David’s • Fancy, resurveyed for John Moale, on the 1st day of November 1 "38, as the same is located by him., the. plaintiff, upon the plots returned in tiie cause, as per table of courses No. 2, viz. From the letter Jl, (1) N. 86f, E. 65 perches, (2) N. 41J, E. 235 perches to b, (3) N. 25|, W. 86 perches to V, (4) N. 86, W. 112í perches to F, (5) S. 51, W. 14, (6) S. 24, TV. S, (7) Sr 67, W, 12, (8) S. 10| W. 40, (9) S. 70, TV. 4, (10) S. 47, W. 6, (11) S. 361, TV. 16, (12) S. 34, W. 21, (13) S. 75, TV, 8, (14) S. 18i W. 14, (15) S. 71, TV. 14, (16) S. 35, TV. 14, (17) S. 89, W. 10, (18) S. 28, TV. 14, (19) S. 8, TV. 18, (20)-S. 10i, E. 18, (21) S. 65, E. 18, (22) S. 14), E. 38, (23) S. 40|, E. 23, (24) S. 7, TV. SI, (25) thence to the beginning, containing 257 acres. The defendant took defence for all that part of Liads Lot, granted to Edward Lun on the 20th of July 1673, beginning at red JL 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 blacic drawn line to 4, then with the red broken dotted line to V, then to red I, then with the black lines, black figures 19, 20, red figures 14, 15, 16, 17, 18, 19, and then to red Jl, as per table of courses No. 26„- Judgment was entered against the casual ejector for the land called David’s Fancy, undefended on the plots by the defendant. After the jury were sworn by the issue, the plaintiff) 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 declaraiion mentioned, who demised nine parts of the premises, (in forty-eight parts to be divided,) to the plaintiff, had died, and which was not denied.
    1. The first bill of exceptions. The plaintiff, to make title to the tract called David’s Fancy, read in evidence a certificate of survey of David’s Fancy made for David Williams on the 22d of June 1671, and- containing 100 acres, which certificate recites, that by virtue of a warrant granted unto Robert Wilson for 650 acres, bearing date the 17th of June 167-1, 100 acres thereof was assigned unto David Williams, by Wilson, there was, therefore, laid out for Williams t‘a-parcel of land called David’s Fancy, lying in Baltimore county, on the N. side of Patapsco river, and on a branch called the Middle Branch, beginning at a bounded locust tree, being the N. E. bounded tree of David Poole’s land 
      , and running by the land of the said. Poole, E. 65 perches, to a bounded oak, then N. E. 150 perches to a bounded red oak of the said Poole’s land, then N. N. W. 86 perches to a bounded red oak, then S. "W. to the head of Howard’s Branch, then bounding on the said branch, and the said Middle Branch, to the first bounded tree, containing and laid out for 100 acres more or less.” The plaintiff also offered in evidence a patent for the land called. David’s Fancy, granted to Williams on the 1st of May 1672. The courses, &c. in the patent corresponding with those in the certificate, except in the patent the S. W. coúrse, last above mentioned, is described’ to run “S. W„ and by W. to the head of Hoivard’s Branch,’? &c. He also offered evidence, that Williams departed this life, intestate, and without heirs. He also produced and read to the jury, a warrant of escheat issued to John Moale, setting forth that there was escheat to the Lord Proprietary, a tract of land called David’s Fancy, lying in Baltimore county, on the W. side of the Middle Branch, originally granted on the 1st of May 1672, to David Williams, for 100 acres. That on the ‘13th of March 1722, a certain Thomas Cromwell, by his petition, setting forth that he Was seized in fee thereof, obtained a special warrant to re-purvey it, and a certificate thereof was returned, by which it appeared that there were 83 acres of surplus land included, for which Cromwell never compounded nor sued out grant of confirmation thereon, contrary to sundry ot his Lordship’s proclamations for that purpose published. That apprehending his Lordship’s rights liad not been 11 a 7 . complied with, Moah* on the 14th oí* April 1737, obtained i • 37 * ’ a special warrant to resurvey the said tract, yi order to have the benefit of the surplus, and the contiguous vacancy, if any. That since, upon the strict search made both in the records of the provincial court and county court pf the county where the land lay, as aRo in the records pf the commissary’s office, he could not fnjd any conveyance from TFiBiams to one John Jllhrine, who had pretended a right to the land, nor to any other person, nor that ever he willed the same to any person whatsoever; by which means, Mode was advised that the land had bepopie escheat to Ms Lordship; and- he, being the first discoverer, and desirous 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 t,t> rpawvey, for and in the name of Mode, the tract of escheat land called David’s Fancy, according to its ancient metes and bounds, with its surplus-age, and by his outlines adding what vacant land lie could find to the same contiguous, \yhefher cultivated or oilier-wise, not running his iin.es, &c. He also offered evidence, that the warrant, not having bepn executed in time, was, on the 1 T'th of May IT'S8, renewed for si'-t. months longer. That in virtue of the last mentioned warrant, a certificate of survey was returned, dated the 1st of November ITS8, by which it appears, that there was resurveyed for and in the name of Mode, the tract of.land called David’s Fancy, with ds surplusage, according to the ancient metes and bounds thereof, as shown to the surveyor, lying in tin-county aforesaid, oil the E. sirle of the middle branch of Paiapsco river, beginning at a locust now bounded at or very near to the place where stood a bounded locust, the original beginning tree of David’s Fancy, and a bounded tree of a tract of land called Upton Court, formerly laid out fyr David Poole, and running thence, with the said land, E. 65 perches, (it being expressed in the certificate of the original survey to run by the, land of the said Poole, E. 6j perches to a bounded oak, which cannot be found,) thence N. E. 238 perches, still bounding ou the said land to the N. W. branch of Patap&co river, it being therein express eel, to run N. E. 150 perches to a bounded red oak of the said Poolers land, and the certificate of the said Poole’s land mentioning to. run that course to a bounded red oak, Standing by the side of the said N. W. branch, which oak is not known, thence N. N. ~W. 86 perches, S. 83° SO' W. 133 perches, to the head of Howard’s Branch, it being expressed to run S. W- to the head of Howard’s Branch, thence bounding on the said branch, and the aforesaid Middle Branch, to the first hounded tree, as mentioned in the certificate of the original survey, as follows, viz. S. by W. 16 ps. S. 41, E. 16 ps. N. 83,, W, 24 ps. S. W. 40 ps. N. 73, W. 10 ps. S. 22, W. 24 ps. W. 9 ps. S. 30, W. 12 ps. N. 74, W. 10 ps. still bounding on Howard’s Branch to the Middle Branch, thence S. 38, W. 16 ps. S. 11, W. 15 ps. S. 2, E. 12 ps. S. 12, 15. 12 ps. S. 70, E. 12 ps. S.’ 12, E. 38 ps. S. 37, E. 28 ps. still bounding on the Middle Branch, and thence by a straight line, bounding on the branch, to the beginning^ containing- and laid out for 257 acres more or less, to be held,” &c. “by the name of Da■vid’s. Fancy.”- He also read in(evidence.the grant issued thereon to Einhard Moale, dated the 29th of September 1750, which grant recites, that Charles Croxall, (guardian and next friend to Ei.chard Moale, an, infant, under the age of-twenty-one years,) did set forth, that a certain. John Moale, deceased, father to Richard, did heretofore set forth that there was escheat, &c. (as in the recital in the special warrant granted to John Moale,) that a warrant issued, was renewed, and a resurvey made, and certificate thereof returned, by which it appeared, &c. That before John Moale obtained a grant of. confirmation for the same,, fie died, but before his death he made his last will and testament, in which was. the following bequest: “Item. I give and bequeath unto my infant son, to be christened by the name of Richard, all that tract of land I bought of Jacob Giles, named Upton Court, and also the land adjoining 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 yet being issued out, to him my said beloved infant son, and his heirs lawfully begotten, from him and their bodies, for evermore; but if either of my aforesaid sons should die without such heirs aforesaid, then it is my will, that the land which I have herein devised the dead son, heir less, shall go to the living son, to be held of him, and his lawful heirs, from ge« aeration to generation as aforesaid.” Croxall, therefore; prayed, that for as much as the right of the escheat land was in Richard Molde, and all requisites complied with; gi'ant of confirmation might issue to him on the certificate; agreeably to the bequést aforesaid, &c. Therefore, in consideration thereof; and other the premises, &c. the i$ Lord proprietary did give, grant and confirm, unto him., 156 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 resurveyed, and still called David’s Fancy lying,” &c. as described in the certificate herein before mentioned — -“Ttí is have and hold tire same unto him the said Richard Moale, and the heirs of his bodylawfully begotten, for ever; to be il holden, of” &c. He also read in evidence the last will and testament of John Moale, for whom the certificate of survey was made aiid returned, dated the 14th of January 17"39-40. Whereby he devised to his son John, to him and his heirs law» fullybegotten from his and theirbodies, for ever more, sundry parcels of land; and he also devised to his infant son, to’ be christened by the ñamé 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 11th of April 1783, from Richard Moale to Janies Croxall, reciting that Moale was seized of an estate, in fee tail,- in and of a tract of land called David’s Fancy, (saving and excepting that part thereof before conveyed by him to Mary Tribole.t,) lying, &c. and it was the intent, meaning and design of Moale, according to the act of assembly, &e. fully and effectually tobar, dock and destroy the entail, and to grant, convey and transfer to Croxull, and his heirs, absolutely and fully, the said tract of land, (saving and excepting as aforesaid,)’ with the appurtenance» thereunto belonging, in order, and with the intent, and for the purpose, that Croxall, on lfis becoming thereby seized thereof in fee simple, might reconvey and assure ufito Moale, 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, witressed, 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 and excepting as aforesaid,) in the usual form. He also read in evidence a deed of indenture, dated the 12th of April 1783; from James Croxall to Richard Moale, forth© tract tailed David’s Fancy, excepting that part sold by -Moale to Mary Ti-ibolet
      
      . He also offered in evidence, that Richard Moale died sometime in the year 1786, without issue of his body lawfully begotten, having first duly made and executed his last will and testament in writing* dated the 22d of February 1786, whereby he devised all that part of the tract of land called David’s Fancy, for which this suit is brought, to his brother John Moale', in fee simple. That John Moale, the devisor first named, left, at the time of his death, two sons, to wit, John Moale, his eldest son and heir at law, and Richard Moale, the patentee before named. That John Moale; the devisee last named, died in the year 17P7, having first duly made his last will and testament; dated the 20th of July 1797, whereby lie devised all that part of David’s Fancy, for which this suit is brought, to his sons John Moale., Richard Moale, Robert North Moale, Samuel Moale, George Washington Moale, and Randle flulse Moale, their heirs and assigns, to be equally divided between them* share and share alike, hs teuants in common; He also gave in evidence,, that George Washington Moale, the devisee mentioned in the last mentioned will of John Moale the younger, died after his father John Mould, in the year 1797, intestate* unmarried, and without a child. That the lessors of the plaintiff; to wit* John Moale, Richard II. Moale, Robert North Moale, Samiiel Moale, Randle Hulse Moale, Thomas Moale, Rebecca Russell, and Elizabeth* wife to Richard Carson, in the declaration mentioned, are the children and the only children, of John Moale, the last named devisor; that Richard Moale-, one of the lessors of the plaintiifi, died since the bringing of this suit, andduring the pendency thereof, leaving issue now in full life. He also offered evidence; that the true location of the land called David’s Fancy, granted to David Williams in 1672, is, as he hath located the same upon the plots returned in this cause; and also that the true location of the land called David’s Fancy, granted to Richard 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 -lOfh of October 1672, and grant of Dun’s Lott, to Edward Dun, bearing date on the 20th of July 1673, whereby it appears that there was surveyed “a parcel of land lying in Baltimore county, on the N side of Patapsca river, and on a branch called the N W Branch, called Dun’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, called Salisbury Plains, and running with the line of the said land N W and by N 38 ps. to a bounded hickory in the line of the said land, then S W 165 ps. to abounded red oak, then ¡3 40 ps. then W N W 45 ps. to a bounded hickory 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 ps. 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 abounded red oak standing in a bite of the N W branch, then bounding on the said branch lying up N SO ps. to a bounded red oak, then N N W 38 ps. then W N W 10<) ps. then N and by W SO ps. to a locust marked with four notches, then NKE45 ps. to a bounded red ©ak in the line of the land of Thomas Cole, then W 75 ps. to a bounded oak of the said Cole’s land, then by the said land N N E 275 ps. to another bounded oak, then E 65 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 1762, and grant of Dun’s Lott Enlarged, dated the 25th of March 1763, surveyed for and granted to Cornelius Howard, and Ruth his wife, and containing 414 acres, more or less, being in virtue of a special warrant tó resurvey a tract of land called Lun’s Lott; and also proved, that Lun’s Lott and Lun’s Lott Enlarged, are truly located on the plots returned in this cause. He also ©JFered evidence to prove, that he is heir at law to Edward 
      
      Zuh, the patentee of Lurís Lott, and also the heir at ls\V’ of Cornelius Howard, and Ruth his wife; the patentees of Lun’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 made title to the lahds for which the defendant hath taken, defence in this cause, nor any part thereof, and cannot recover in this actions,
    
      Ridgely, for the Defendant,
    contended; that the grant to Richard Moale of the 29th of September 1750, for David’s Fancy, vested in him an estate tail, and that upon his death, without issue, the reversion is in the state of Maryland, Standing in the place 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, ch. 25. Pigott, 85, 87, 88, 89. Neal vs. Wilding, 1 Wils. 275. Pool vs. Nedham, Yelv, 149. Anon, Noy, 132. 18 Vin. Abr. tit. Common Recovery, 233, pi, 9. 5 Bac. Abr. tit. Prerogative, (E. 5.)
    
    
      Shaajf, on the same side,
    cited the act of assembly of October' 1780, ch. 45. Owings vs. Norwood’s Lessee, (ante 96.) Allen vs. Stewart and Patten, 
      
      . Laws 
      vs. The Attorney General, 
      
      . Kelly’s Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Russell’s Lessee vs. Baker, 1 Harr. & Johns. 71. Gitting’s jun. Lessee vs. Hall (ante 112.) 5 Bac, Abr. tit. Prerogative, (E. 3.) Com. Dig. tit. Estates, (B. 31.) Statutes 34 Hen. VIII, ch. 20. Bets of assembly of November 1787, ch. 9, and, 1785, eh. 87. The State vs. Stump, et al. 2 Harr. & M'Hen. 174. Laidler vs. Young’s Lessee, (ante 69.)
    
      Martin, (Attorney General,) Key, and If'. Dorsey, for ■¡.lie. Plaintiff,
    cited Calvert’s Lessee vs. Eden, et al. 2 Harr. & M'Hen. 279. Act of assembly of Nov. 1782, ch. 23. Doe vs. Pegge, 1 T. R. 758, (note). Armstrong vs. Peirse, et al. 3 Burr. 1900. Goodtitle vs. Jones, 7 T. R. 46, per Ashhurst, J. Doe vs. Wharton & Dixon, 8 T. R. 2. Gilb. on Uses & Trusts, 83, 85, 86. 5 Bac. Abr, tit. Prerogative, (E. 3). Owings vs. Norwood’s Lessee, (ante 96.)
    
      Harper, in reply,
    cited Hall vs. Gitting’s Lessee (June, 1809). Kelly's Lessee vs. Greenfield. Russell’s Lessee vs. Baker. Gitting’s Jun. Lessee vs. Hall, and Owings v Norwood’s Lessee.
    
    Dose, J. delivered the opinion, of the court.
      
      . 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 slate of Maryland in place of the proprietary. There docs 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 parties having a reversionary interest expectant- on the determination of an estate tail.
    The jura regalia, as attached to the person of the king in England, never did attach to the lord proprietary of Mary land.
    
    
      The lord.proprietary held the dominion and property of the soil, which he could sell and dispose of in the sam& manner as any other person, and subject to the same beneficiary legal; and equitable rights, as in the hands of any other person; and on an equitable interest being obtained; agreeably to the rules of his land office, by any person taking out a warrant, returning a certificate of survey, and paying the composition money, the party became entitled to q 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 t)ie year 1783, his reversionary interest in the lands., in question would have been destroyed by the deed made by Richard Mode, the grantee in tail, under the operation of the act of 1782, as effectually as the reversionary right of any citizen of Maryland),,.
    
    The question then occurs, whether the caséis-ma-teiially altered by the proprietary’s rights passing into the hand's; of the. state?-
    On this view of the subject* a doubt might arise, wheither 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 nq ether, 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?, ehase from the proprietary.
    By the last will of John Mo ale, the elder, his interest iq the lands passed: agreeably to the disposition made by the. said-will, and the deed, made in. 178.3, bj_Richard MoctleA the devisee, and the patentee of the land, was.competent to bar and extinguish the, reversionary interest of-the state.
    As these points have been elaborately and ingeniously argued by the learned-, counsel- concerned, the. court have thought proper thus shortly, to. notice them, and. express their ide^s relative, to. them»,
    But let us suppose that the opinion of the court, so far, is not well founded, évery objection to the plaintiff’s title» arising from any particular prerogatives or privileges ip the-. proprietary or the state, which would protect their rights, from being affected in the same manner as those.of citizens, is, in the opinion of the court, completely removed by the operation of the grant of hurt’s Lot Enlarged.
    
    The escheat anti grant of the proprietary thereon will jelate 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 hurt’s Lot, the original, but on the contrary the presumption is strong that it did not oijcur until nearly about the time of the obtentioq of the escheat warrant.
    By the grant of hurt’s Lot Enlarged, all the reversionary interest of the proprietary in David’s Fancy, so far as. Lun’s Lot Enlarged Interferes with and include» any part of David's Fancy, passes to a citizen, and of course is liable to be operated upon, and barred, in virtue of the act of-assembly of X782, by the deed from Moats to Croxall in 1783.
    For these reasons the court refuse to give the opinion and direction to the jury, which is prayed by the defendant’s counsel. The defendant excepted, 
    
    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 Tata on the 12th of March 1667, and a grant thereon issued lo David Poole on the 2d of August 1668, by which it appears that there was surveyed “a. parcel of land called Upton Court, 
      tying in Baltimore county, on the N side of P&apseo ¡fiver, opposite the land of Hugh Kinsey, beginning at s, bounded red oak standing on tha southernmost side of a point of land formerly called Whetstone Point, and from the said oak bounding on the said, river by aline drawn M TV ami by N 40 perches, then N TV and by TV 40, perches, and from the end of the N TV and, by TV line by a line drawn W 100 perches,, bounded on the TV by a line drawn W N TV 30 perches, then, N TV 100 perches, to a small creek, then over the said creek by a line drawn W and by S SO perches., then TV S TV 45 perches, then S W 8Q perches to the mouth of another small creek, then over the said- creek S and by TV 45 perches, then S Wand by S 55perehes to,a point which maketh the mouth of a branch called the Middle Branch? then bounding on the said branch by a line drawn If TP and by N 180 perches to a marked oak opposite a small island, and from the said oak NE 50 perches to a,small branch which máketh the outward narrows of the said land, then E 65 perches, bounded on the E by a line, drawn HE 150 perehes to a bounded red oak standing Try the N W branch, then ESE 56 perches, then E N E 120' perches, then E S E 44 perches, then S S E 100 perches to a small cove, then over the said cove by a line drawn S E 100 perches, to a point called The Sandy Point, then S S E 48 perches to. another marked oak on Whetstone Point, and from the said oak to the first bounded tree, containing 500 acres of land more or less.’’ He also gave in evidence the plots and locations in ibis cause, and the. admission ofth.e plaintiff 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 Upton Court terminated at the black letter A on the plots/ and further gave in evidence to the jury that the beginning of David’s Farcy, the original, was at the letter A/ and also that the beginning of David’s Fancy, the escheat in 1"38, was 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 evidence in the cause that the, twelfth line of Upton Court terminated at the letter A, and that the beginning of David’s, Fancy, the original, and David’s Fancy, the escheat, was at the same place, that then the escheat certificate and pa-J ¿c-iitof David's Fancy* granted to Richard Moahva IT’S1!?; do by operation of law relate to the original tract called David’s Fancy, patented in 1675*5 and that the expressions in the escheat grant contained, do, by operation of law, bind the escheat land to rim with the true location of the original tract of David’s Fancy, as tó the two first lines ¿hereof, so far as the said lines extend; and that the first and second lines of the original David’s Fancy, do by virtue of the expressions therein used, bind the said lines to mi with íha S3th md I4íh Unes of Upton Court.
    
    
      Shaaff ami Harper, for the Defendant,
    referred to Dorsey’s Lessee vs. Hammond, 1 Harr. & Johns. 190. Darnall’s Lessee vs. Goodwin, 1 Harr. & Johns. 282. Helm’s Lessee vs. Howard, 2 Harr. & M'Hen. 57. Hammond’s Lessee vs. Norris, (ante 130;) and Kyger vs. Kirkpatrick, 1 Harr. & Johns. 298.
    Doxe, .T. delivered the opinion of the court. Three, propositions have been stated by the prayer of the plainiilFs counsel, for the opinion of the court, and their direction to the jury.
    1st. That the escheat certificate and 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.
    gdly. 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
    3d!y. 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 lines •of Upton Court.
    
    On the first point, tiie court are of opinion that the es-cheat certificate and patent of David’s Fancy do, by operation of law, relate to the original tract called David’s 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 been contended by the defendant's counsel, that the court are precluded from'acting upon them, by the decision of the court of appeals in the case of Dorsey's Lessee vs. Hammond, and that by the rule laid down by that decision, these are to be considered as questions of location, and must be left to the determination of the jury.
    This court, let their private opinions be as they may}' Will always ’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 j'uriés as to the construction of grants by the decision of the court of appeals ih Dorsey vs. Hammond, and h'ow far th'e rule and principle thereby adopted may operate to preclude uncer^ iainty of decision, is not for us to consider.
    ■ The. question 'then arises* whether the court áré.precludé'd by that determination from giving their opinion on the question now before them? and we think - that we are not so precluded; but that the present question rests on grounds ftnd principies entirely distinct from thát case, and Helms vs. Howard, which has been cited to the court.
    fn Dorsey’s Lessee vs. Hammond, the question was, whether the binding call in one course woiild be extended to the subsequent courses? the first Using imperative binding 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. Howard is founded on the same principle. In that case all the expressions could not be gratified; there were two distinct' and different courses, one of which must be pursued, and the other rejected. Therefore, the court said, it must be left to the jury as a matter of location, to determine which mnst be adopted, and which rejected.
    In the present case the court arc of opinion, that no such doubt or ambiguity appears. Abstractly considered, .the expressions are unquestionably binding, and the court of appeals have so far concurred with this court as-to say, ifea'i we are competent to determine where expressions arfe 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 thirteenth line of Upton Court. But the court think, diat they are not restricted by the decision in Dorsey and Ham,* mond, from giving their opinion hypothetically in the present 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 the first line of David’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’s 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 virtue 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 lha jury. The defendant excepted.
    S. 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, surveyed for John Moale on the 1st of November 1738, different from the land called David’s Fancy, surveyed for David Williams on the 22<1 of .Tune 1671, and hath not on the plots located those lands in the same way, the pláihtiff shall not be permitted to give any evidence to the jury, that the two tracts of land have the same location; and that thé plaintiff is concluded by the location he hath given on the plots of the tract of land called David’s Fancy, surveyed for John Moale; He Further pntyed the opinion of the court* and their direction to the jury, that as the plaintiff1 hath in this cause located the two first lines of David’s Fáñéy, surveyed for John Moale the 1st of November 1738, running front the black letter A, then with the black- broken aiid dotted lines No. 1 and No. 2, to the black letter b, and hath given no other location thereof on tíié 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 aiiy other location of the two first fines.
    
      fehttaff and Harper* for the Defendant,
    contended that the plaintiff ought not to give proof different from his allegations; They cited Hammond vs. Norris, (ante 130.)
    Martin, (Attorney General,) and Key, for the Plaintiff,
    cited Carroll et al. Lessee vs. Norwood, 1 Harr. Johns 167. Gray et ux. Lessee vs. Amos, in the General Court at October term 1796, where the plaintiff located bis pretensions three ways, neither of which the jury found, although their finding was in favour of the plaintiff, and included mote land than lie claimed; He took judgment for the land claimed by him within the finding of the jury, ánd entered a release as to the residue. Darnall’s Lessee vs. Goodwin, 1 Harr. & Johns. 282. Hicks vs. Scott, in the General Court, on the E. S. Nicholson vs. Hemsley, 3 Harr. & M'Hen. 409, where dotted lines were made on plots by the jury, without objection. Kirkpatrick vs. Kyger, 1 Harr, & Johns. 298.
    Done, J. delivered the opinion of the court. The court are of opinion, that as the plaintiff has not located his prey tensions co-extensive with the location of David’s Fancy, the original, surveyed in 1671, he cannot be permitted to give evidence to the jury to extend his pretensions beyond the lines and limits which he has given to the tract of land called David’s Fancy, under the escheat grant to John Moale in 1738, but is estopped by that location from going beyond the black letter Y, from whence he must run to the 'bead of Howard’s Brandi, at whatever point the jury may 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 Mode the 1st of November 1738, running otherwise than as they are located from the black letter A on the. plots, with the black broken and dotted lines No 1 and No. 2, to the black letter b, as the location of his pretensions^ but that the plain» tiff is not precluded from giving evidence 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 Ids pretensions, so tar 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 courts and their direction to the jury, that from the place where the jury find the termination of the second line 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 mads of the tree called for, or the place where it stood.
    Done, J. The court direct the jury according to the 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 letter r, the gum tree, or at black letter F* or at any point between; and that the plaintiff is competent tp, recover so far as his pretensions are included within the lines of David’s Fancy, the original, as. found by the jury.
    Done, J. The Court do not think the last prayer is,embraced 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 line to the head of the branch. That the course in the certificate, and the course located, is but one line,.
    6. The third bill of exceptions. Tile defendant produced and.swore Zadiariah Maccubbin, as a, witness to the jury, to prove, and who did prove, that Richard Moale, under whom the lessors of the plaintiff make title, and, John Eager Howard, the defendant in this cause, employed Maccubbin to tun the tract of land called David's fancy, that they both attended at times during tlie survey, and that op said running, the fourth line of the land was run course and distance, by and with the leased lands of Moale, to a point On Howard'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 Moaley hi order to show the true location of that line. The plaintiff then produced to Maccubbin a plot of the land called David’s Taney, and proved by him thathhe said plot was the one which he made out for Moale, on the running so made; that the. same now produced 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. plqts in this cause made; and further proved by Maccubbin, that after the same running he also made out a, plot for the defendant. He then offered to read in. evidence the plot so mpde out by Maccubbin for Moale., The defendant further proved by Maccubbin, that the corrected lines on the plot were never run on the ground, and that the plot was made out after the survey, at the instance and direction of Moale, and that the. corrected, lines, of. the plot were drawn upon tlie plot a.t the sole direction, of Moale, without the knowledge, and in the absence of the defendant. Maccubbin further proved* that he has no recollection whether he did or did not run. any of the lines of Upton Court, which are laid down on the plot, and that tlje whole plot, and all the explanations, were made in the offic.e of Maccubbin, in the absence of. the defendant; and that Moale, during the time he was employed in making the plot and explanations, frequently was present, and gave him directions about the work. Maccubbin further proved, that the four lines terminating at black letter C, were never run on the ground, and that those lines never were laid down on the plot by the direction or with the knowledge of the defendant* or in his presence^ but that the waters and branches, designated on the plot, were made by actual survey. The defendant then objected to the reading the plot and explanations to the jury.
    
      Shaajft for the Defendant,
    cited Jarretl vs. Tfest, 1 Harr. Sr Johns. 501.
    Do.nk, 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 U in the presold question.
    The court do, not say whether it would have been evidence originally had it been offered, but as the, defendant had offered evidence by the witness, who made ihe survey, to show Richard Moqle did not claim, if is, 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 giyen in evidence to the jury. The defendant excepted,
    7. The defendant then prayed the opinion of the court, and their direction to the 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 origin nal certificate 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 j.ury, that the course and distance in a certificate or grant must always be controlad by a call expressed in the sames and that in this case the course and distance must be complied with, as nearly as they can, to strike the branch described to be at the end of the twelfth line of the tract of Sand 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 variation 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 Mange, made on the 26íh of January 1722-3, for Thomas Cromwell, in virtue of a special warrant of repurvey to him granted, to yesurvej the trspt called David’s Fancy, granted to David Williams on the 1st of May 1672, for 19ft acres; whereby was resurveyed for Cromwell, the said land, with contiguous vacancy added, &c, flying on (he N side of Pat apsco river, and on the W aide of the Middle Branch, beginning at a bounded locust stump standing near the said branch, said stump being a. boundary of a parcel of land called Upton Court, and running thence with said land É 65 perches, s.till with said land N E 250. perches, to the N W branch, then N N W 86 perches, thence S. W by "VV 70 perches, thence W N W 54 perches, to a bounded white oak of John Howard's land,, called Timber Neck, standing in a small fork descending into the head of How-., (trd's Branch, thence with the said, land S W by W 54 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 60 perches, still with said branch S 56° W 70 perches, still with said, branch S 50° ~VY 60 perches to the Middle Branch, thence, S' 20° E 50 perches, thence with a straight line to the said, locust stump, containing 185 acres of land more or less,” &c. He also offered evidence of ancient runnings of the tract called Upton Court, hy which the fourteenth line, thereof was run and extended to the N W branch of Patapsco river, and that no land has ever been taken up southward of the black letter b, and below the red letter L, except 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. Fancy surveyed for David Williams on the 22d of June 1671, must be terminated at the end of the 150 perches from the beginning, from whence the third line of that tract must run. according to its course and distance, as expressed in the original certificate and patent thereof, and the fourth line from the end of the third line, to the head of Howard's branch.
    
      Harper, for the Defendant,
    cited Thompson et al. Lessee vs. Brown, 1 Harr. & Johns. 335. Dallas vs. Stansbury, (in the General Court May 1801,) Hammond vs. Ashton, (Ibid May 1797.) Owings vs. Kelly, (Ibid May 1796.) Hellen vs. Garretson, (Ibid October 1797.)
    
      Key, contra,
    cited Helm's Lessee vs. Howard.
    
    
      Xíoxk, J. This court are bound by the decision in Dorsey’s Lessee vs. Hammond, which must govern in deciding upon the prayer now submitted. The court are of opinion, that the termination of the second line of David’s Fahey, surveyed for David Williams on the 22dofJune 1671, is a matter of fact to lie 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 excepted.
    9. The fifth bill of exceptions. The.plaintiff then gave In evidence, that the twefthlme of Upton Court terminated at the letter 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 at the letter black A; and that the escheat land called David’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 Yv branch of Fatapsco river, has been always held, claimed and considered, as Upton Court and David’s Fancy, 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 Patapsco 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 Fancy, the original, therein called for, was lost, anil no evidence 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. S. 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 letter black A, with the inner black lines 1 and 2, to little Mack a, by the side of the N W bianch of Fatapsco ri- ■ ven ' The defendant then prayed the opinion of the court, and their direction to the jury, that if they are of opihion from the evidence-, that the original beginning tree of David’s Fancy* surveyed for John MoaU on the 1st of November 1738, is proved át 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 thereon issued, was run as described on the plots by the black broken line numbered with the black figure!; and that the second line of the land, as expressed in the certificate and patent thereof, and run by the surveyor, run to the N W branch of Pataps'co river, at the black letter b oh the plots; and that the third line of the land, a? described in the certificate and patent run by the surveyor* run to the black letter V on the plots; and that the fourth line of the land as run by the surveyor, and described by the certificate and patent thereon, run to the head- of Howard’s Branch, at the black letter i, and froth thence with the meanders of Howard’s Branch, and to the beginning, that then the certificate, and the pateht thereon issued, do not in law operate to pass any land which may be included within the Original grant of David’s Fancy, surveyed for David Williams on the 22d of June 1671, except the same may be also included within the metes and bounds of David’s Fancy, surveyed on the 1st of November 1738, as above described; and that Dúvid’s Fancy, surveyed the' 1st of November 1738, does not, by legal operation, convey all the land contained within the original certificate and patent of David’s Fancy, surveyed on the 22d of June 1671, unless the particular metes and bounds of David’s Fancy, surveyed the 1st of November 1738, shall also include the same.
    Done, J. This point has been decided by this court in Gitlings Jun’s. Lessee vs. Hall. The court therefore refuse to give the opinion and direction prayed for by the defendant’s counsel. The defendant excepted.
    10. The sixth bill of exceptions. The plaintiff offered to read the deposition of Wmdel Lawrence, taken under the survey made in this cause. The plaintiff having proved by Anne Lawrence, a witness sworn in court, that her husband, Windel iMwrence, went on board the Norfolk packet, captain Deagle, to go to Norfolk, about three Weeks agó 
       He first said that he intended to go td Alexandria, but the morning he left Baltimore, lie informed the witness he would go to Norfolk. That when he departed, he said he should stay 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 tlie witness and his family, consisting of five children at this time, live in Baltimore. The plaintiff also proved by another witness, John F. Holland, that about the loth of May 1804, he settled with Windel Law-fence, when he informed the witness that he owed some money; that he must go away if the witness did not supply him. The witness told him that he would, but that he lost so much time by attending as a witness at Annapolis, 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 reiurned since. That Lawrence had been in his brother’s employ for 2 or 3 years previous. That it is the general reputation of the neighbourhood, that he has left 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 witness, 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 about the early part of May 1804, and that he the witness bath not seen him since. That he left the employment of Holland and Ensor, in Baltimore, where the witness worked with him. The defendant objected to the reading of the deposition in evidence to the jury.
    Bone, .T. The court arc of opinion, that the deposition of Windel Lavorence is competent and legal evidence to be read to the jury.
    This is different from the case of DarnalPs Lessee vs. Goodwin. 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 lie is out of the reach of the process of the court. The defendant excepted.
    
      11. The seventh bill of exceptions. The plaintiff then prayed the opinion of the court, and their direction to the jury, that although David’s Fancy, the original, is located by the plaintiff from A on the plots, with ail allowance for variation amounting to sii .degrees and an half of a degree^ and though David’s Fancy, the escheat patent, is located from the same place, with an allowance of three 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 less variation, as shall appear to them proper from the evidence iii the cause.'
    
      Martini (Attorney General,)
    for the Plaintiff, cited Esp. 490.
    
      Shaajf and Harper? contra,
    cited Hammond vs. Norris, (ante 130.)
    Done, J. The court are of opinion* and so direct the jury* that they may* agreeably to the'evidence given iu this cause, find the true location of David’s Fancy, under the" escheat patent, by a greater or less variation of the 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 location of his pretensions made on the plots, or beyond a straight line tobe-drawn from the letter Y to the head of Howard’s Branch* wherever the jury shall find the samé to be; The plaintiff excepted.*
    12. The eighth bill of exceptiansi The' Court having-given their opinion -and direction to the jury, in the seventh bill of exceptions, that the plaintiff had made title to tiré 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, agreeably to the evidence given, find the true location of David’s Fancy, under the escheat patent, by a greater or1 less variation, as should appear to them proper from the evidence; provided that by such allowance of variation they were hot to enlarge or extend the pretensions of the plaintiff beyond, the location of his pretensions made on the I>lots, or beyond a straight line to-be drawn from the letter V, to the head of Howard’s Branch, wherever the jury should find the same to be; the plaintiff prayed the opini-. and direction of the court to the jury, that if the jury ¡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 Patapsco river, and from thence to biack 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 pretensions located on the plots, which shall lay within the location 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 be. 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 front 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, acr, pording to the true location, as so found by the jury, and also within the lines of the plaintiff’s pretensions, as a^ 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 David’s Fancy, the escheat,, different from what is located by him for his pretensions, so as to prevent him from recovering what is contained in his pretensions within the true location, the defendant is also estopped from saying that the true location is different fropx the location given by the plaintiff.
    
      Martin, (Attorney -General,) and Fey, -for the Plaintiff;
    cited Com. Dig. tit. Estoppel, (B) (C.) Brereton vs. Evans, Cro. Eliz. 700. Ludford vs. Barber, 1 T. R. 86. Co. Litt. 352, a. Cray et ux. Lessee vs. Amos, (October 1796.)
    Done, 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 vipw. in the ease. The court refuse to. grant the prayer. The plaintiff excepted.
    The jury returned the following verdict: The. jury, find the true location of David’s Fancy, the original, and David’s Fancy, the escheat, to be from the beginning at black A, as described upon the plots in this cause returned, then with the inner black lines. 1 and 2, to little black a, on the. north west branch of Fatapsco, river, and from the said a, the jury find the third line to run to figure black 3, and from thence the jury find the fourth line runs to four perches below big black F, which the jury find the head of Howard’s Branch, and from, thence, with Howard’s Branch and the Middle Branch, binding on the same, to the beginning at A; and the jury-find for the plaintiff his pretensions from the said A, with lines 1 and 2, to a, and from thence to V, and from Vto, four perches below big F, which the jury find the head of Howard’s Branch, and with the same, binding on the branches to the beginning; and that the defendant is guilty of the trespass arid ejectment complained of in the declaration, within the - said pretensions, in the manner complained of by the plaintiff. Ariel as to the residue of the, trespass and ejectment complained of in the residue of the. tract of land called David’s Fancy, for which the defend flant hath taken defence upon the plots returned in this cause, the jury find the defendant „is in no wise guilty thereof. Judgment — That the plaintiff recover against the. defendant his several terms aforesaid yet to come and unexpired, of and in all that part of the said tract of land called David’s Fancy, in the declaration mentioned, lying* &c. which is contained within the description and finding of the jury, that is to say, beginning at black A, upon' the said plots in this cause returned, and running with the inner black lines 1 and 2 to little black a, on the northwest branch of Patapsco river, and from thence to V, and from Vto four.perches below big t, the head of Howard’s Branch, and with the same, binding on Howard’s Branch and the Middle branch, to the beginning — and also for costs. As to thé residue, &c. judgment for the defendant. The defendant appealed to this court.
    The cause was argued a.t the last term before Tilgh-t man, Buchanan, Nicholson, and Gantt, J. on the first, second, third, fourth, fifth, and sixth bills of exceptions?" taken by the defendant helo a..........
    
      
      Harper, Shaaff and Taney, for the Appellant,
    stated, that the first bill of exceptions embraced three points — . 1. Whether theLord Proprietary be not estoppedby his grant of Lwvs Lot as to all such parts of David’s Fancy, (the. original,) as are included within the true location of Lun’s. Lot? 2. Whether the entail created by the patent of David’s Fancy, (the escheat,) be docked by the deed of bargain and sale to Croxall? 3. Whether, admitting these two points to be determined in favour of the plaintiff below, any estate in the escheat land passed to the lessors of the plaintiff by the will of John Moale, it not appearing that John Moale entered or died seized?
    On the first point they cited Kelly’s Lessee vs. Greenfield, 2 Harr. & M'Hen. 121. Russell’s Lessee vs. Baker 1 Harr. & Johns. 71. 2 Blk. Com. 295. Co. Litt. 47, b, 352, a. 10 Vin. Ab. 471, 482, 485. Fairtitle vs. Gilbert, 2 T. R. 171. Hayne vs. Maltby, 3 T. R. 441. 4 Com. Dig. tit. Estoppel, 80, 84. 10 Vin. Ab tit. Estoppel, (B. a.) Co. Litt. 47, a, 363, b, 366, b; and The Attorney General vs. Anderson, 1 Harr, & M'Hen. 219.
    On the third point they cited 5. Bac. Ab. tit. Verdict, (D.) Mahoney vs. Ashton, 1 Harr. & M'Hen. 210. Stat, 32 Hen. VIII, ch. 1. 5 Bac. Ab. tit. Wills and Testaments, (D. 1.) Stat. 34 Hen. VIII, ch. 5, s 3, 5. Wallis vs. Fletcher, Cro. Eliz. 530. Ingram vs. Tothill, 1 Mod. 217. Bunter vs. Coke, 1 Salk. 238. 2 Bac. Ab. tit. Legacies and Devises, (B) 51, 52, 2 Blk. Com, 310, 209, 227, 228, 312, 323, 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 law, relate to the original patent? 2. Whether the expressions used in the original patent of David’s Fancy do, by operation of law, bind its second line on the fourteenth line of Upton Court?
    
    As to tire first question, they cited The Attorney General vs. Snowden, 1 Harr. Johns. 332. Ratcliffe’s case 3 Coke, 40. Kelly’s Lessee vs. Greenfield, 2 Harr. & M'Hen. 2 Blk. Com. 244. The Attorney General vs. Anderson, 1 Harr, & M'Hen. 219; and Litt. Sect. 348.
    As to the second question, they cited Helm’s Lessee vs. Howard, 2 Harr. & M'Hen. 57. Dorscy’s Lessee vs. Hammond, 1 Herr. & Johns. 190; and Davis’s Lessee vs. Betty, Ibid 264.
    
    
      That on the third bill of exceptions, the question was,' whether a plot in which the defendant below had nothing r . . - . ® *° ^0’ ^ie niaking of, which he was ignorant, and which was made for and under the direction of R. Ihoale, under whom the lessors of the plaintiff claim, could be given in evidence against the defendant, merely because it was in part founded on a survey made-at his instance and that of R. Mode? They cited Anonymous, 1 Stra. 95. Bull. N. P. 247, 248; and Bridgman vs. Jennings, 1 Ld. Raym, 734.
    
    That on the fourth bill of exceptions two questions arise i — 1. Whether the termination of the second line of Da,? vid’s Fancy, (the original,) be not a question of law for the decision of the court? 2. Whether the true legal construction of the patent of David’s Fancy, (the original,) be po.t to terminate its second line at. the end of 150 perches?
    On the first of these questions they cited Gibson’s Lessee vs Smith, 1 Harr. & Johns. 253. Gittings’s Lessee vs Hall, (on appeal in this court.). Dorsey’s Lessee vs. Hammond. 1 Harr. & Johns. 190.
    On the second, Gittings’s Lessee vs. Hall, (.on appeal- i^ this court.)
    That on t\\o fifth bill-of exceptions, the question was,, whether the location of the escheatpatent oí David’s Fant cy be not independent of, the location of the original, ex-, cept so. far as the lines of the former expressly call to bind on those of the latter? They cited Helm’s Lessee vs. Howard, 2 Harr. & M'Hen 57 Dorsey’s Lessee vs. Hammond 1 Harr. & Johns. 190. Howard’s Lessee vs. Cromwell, Ibid 118; and Hawkins vs. Hanson, 1 Harr. & M'Hen. 523.
    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. Whether in this case the plaintiff below be not precluded by his neglect from the benefit of this testimony? They cited Darnall’s Lessee vs. Goodwin, 1 Harr. & Johns. 282; and 1 Lofft’s Gilb, 60.
    ' That three questions arise upon the record, independent; of and unconnected with the bills of exceptions — 4. That the death of one of the lessors of the plaintiff, since the action \yas brought, and suggested after the jury were sworn, Fíabes the proceedings erroneous. 2. That the finding of the jury is uncertain; and 3. That the judgment is entered to recover all the several terms stated in the declaration, including the term on the demise of the lessor, whose death was suggested.
    In arguing the first and third questions they cited Howard’s Lessee vs. Gardiner, 3 Harr. M'Hen. 98. The acts of 1785, ch. 80, and 1801, ch. 74, s. 38. Com. Dig. tit. Abatement. Aslia vs. Parkin, 2 Burr. 667, 668. Parker vs. Harris, 1 Salk. 262. Henriques vs. Dutch West India Company, 2 Stra. 808. Lampen vs. Hatch, Ibid 934. Frederick vs. Lookup, 4 Burr. 2021; and Cuming vs. Sibly, Ibid 2490.
    As to the second question they cited Bac. Jib. tit. Verdict, (Q.) and Gittings’s Lessee vs. Hall, 1 Harr. & Johns, 14.
    Johúson, (Attorney (xeneral,) Key, Mason and Martini, for the Appellee,
    on the first bill of exceptions cited, as to the first point, 1 Pow. on Cont. 152, 160. Co. Litt. 45, a, 47, b, 352, a, 363, b. 2 Blk. Com. 245, 346. 10 Vin. Ab. tit. Estoppel, 433, pl. 1; 461, pl. 3; 463, pl. 22, pl. 26; 475, pl. 4; 476, pl. 1. Goodtitle vs. Morse, 3 T. R. 365. 3 Com. Dig. 271; and Pickett vs. Dowdall, 2 Wash. Rep. 106. As to the second point, they cited Calvert’s Lessee, vs. Eden, 2 Harr. & M'Hen. 279. And as to the third point they cited Lux’s Lessee vs. Pellett, 1 Harr. & Johns. 83. (note.) Taylor vs. Horde, 1 Burr. 60. 16 Vin. Ab. tit. Possession, 455, pl. 1 Smith vs. Stapleton, 1 Plowd. 431. Moore, 214 Deux vs. Jefferies, Cro. Eliz. 352; and Sacheverel vs. Bognott, Ibid 356.
    On the second bill of exceptions, they cited as to the first question, 2 Blk. Com. 244, 245. Burgess vs. Wheate, 1 W. Blk. Rep. 146. 163, 166. Co. Litt. 215, b; and the State vs. Reed, 4 Harr. & M'Hen. 6. And as to the second question they cited Dorsey’s Lessee vs. Hammond, and Gibson’s Lessee vs. Smith.
    
    On the fourth bill of exceptions they cited Dorsey’s, Lessee vs. Hammond.
    
    On the fifth bill of exceptions they cited Gittings’s Lessee vs. Hall, 1 Harr. & Johns. 14. Tolson’s Lessee vs. Lanham, (ante 174;) and Gitlings’s Lessee vs. Hall, ,(on appeal in this court)
    
      On the sixth bill of exceptions they referred to the acts of July 1721, ch. 14, and July 1779, ch. 8. Stevenson vs. Myers, 1 Harr. & Johns. 102. Glib. L. E. 60. 1 Lofft's Gilb. 214. 218; and Fry vs. Wood, 1 Atk. 445.
    On the alleged errors in the record they cited, on the first and third points raised, Far vs. Denn, 1 Burr. 362, 363, 364. Oates vs. Brydon, 3 Burr. 1897. Runn. Eject. 411, 413, 414. 438, 439. Addison vs. Oatway, 1 Mod. 252. Anon. 1 Salk. 260. Bull. N. P. 98. Thrustout vs. Grey, 2 Stra. 1056. Fairclaim vs. Shamtitle, 3 Burr. 1290. Aslin vs. Parkin, 2 Burr 667. 1 Bac. Ab. tit.
    
      Abatement, (F.) And ds to the second point they cited Cottingham vs. King, 1 Burr. 628, 629, 630. Carroll et nl. Lessee vs. Norwood, 1 Harr. & Johns. 186. Darnall's Lessee vs. Goodwin, Ibid 284. Sullivane vs. Seagrave, 1 Stra. 695. Camell vs. Clavering, 2 Ld. Raym. 789, Bindover vs. Sindercombe, Ib. 1470 2 Bac. Ab. 230, 231; 232; and Whiltingham vs. Andrews, 1 Salk. 255.
    
      Curia adv. vult.
    
    
      
      
        CaJ Called “Upton Court.”
    
    
      
      
         The defendant’s attornies, at this stage of the trial, made their objections to the grant to Richard Moale.-, but as the bill of exceptions contained the whole evidence of title adduced by the parties, we have adopted the mode pursued in the bill of exceptions.
    
    
      
      
        fa) In the case of Allen vs. Stevjart and Patten, in the court of chancery, at May term 1799, the bill was filed on the 29th of August 1798, and it was admitted, that the land mentioned in the bill was mortgaged to Allen by Patten on the 20th of May 1771, to secure the payment of £142 0 6 sterling money, with interest thereon on the 20th of May 1773. It was admitted that Allen was a subject of the King of Great Britain, residing 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 interest on the mortgage debt.
      ' Haksos-, Chancellor. It appears, that under the circumstances of this case, the chancellor is under no necessity of deciding, or submitting to the general court, the question, as the complainant is a British subject, whether or not the interest of the complainant, in the mortgaged property mentioned in the bill, was defeated by the revolution in America, and the confiscation act of this state; and that the complainant is entitled to have his debt paid by the defendant, or discharged from a sale of the property. Decreed, that unless the mortgaged debt, with interest thereon (except from the 4th of July 1776 to the 3d of September 1783,) until paid, shall be paid on the 9lh of November next, the property in the bill mentioned shall be sold, &c.
      
        Kilty and Sltmff, for the Complainant,
      
        Moale, for the Defendants.
    
    
      
      
        fa ) The case of Lawson vs. The Attorney General, in the Court of Chancery in 1800, was similar to that of Allen vs. Stewart and Batten. In 1769, one Semple mortgaged lands to Lawson, a British subject, and being nothing more than to secure the payment of a debt, it was protected by the treaty. The attorney gene, ral was made 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.
    
    
      
      
        fb) Chase, Ch. J. did not sit, his sister being interested in the, land in question.
    
    
      
      
        ~a) I). Dulany, Esquire’s opinion on the following case stated.A- was seized of a certain tract of land, under a title derived legally from the original grantee. B obtained a common warrant of surrey, and under this warrant, a survey was made, which included part of tire land that had before been granted to A, and R, oil tile certificate returned by the surveyor, obtained a patent. Afterwards A, who was seized as aforesaid, died without heirs, and without having- conveyed, or disposed of his title, in consequence whereof the land, of which A died seized, became, escheat. After-wards C obtained a warrant on the escheat, and as a part of the land, whereof A died seized, was included in the survey of the grant to B, the query is, whether B is entitled to the part so included, or C, who,claims under the escheat? X am of opinion that; B is not entitled to any part of the land under the common' warrant that 1 e obtained, which he was net entitled to when he obtained ti ereon a patent, and as at the tune when the patent was obtained by B, the title was in A under a prior grant, I am of opinion that B cannot claim title to the part included in the patent to A.
      
        Daniel Dulany.
      
      August 13, 1783„
    
    
      
      
        faj The trial commenced on tlie Stli of June 1804.
    
   fPiiE Court,

(at this téi-m,) concurred in the opinions of the General Court, as contained in the several bills of exceptions taken 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.

Nicholsox, J.

I atn for affirming the judgment upon all the bills of exceptions; also upon the alleged uncertainty of the verdict and judgment; also for the alleged error as to the death of Richard It. Moale. I am decidedly of opinion, that the death of the plaintiff’s lessor does not abate a suit in ejectment. In affirming the judgment of the general court, upon the first bill of exceptions, I wish it to be understood that Ido not entertain the most remote idea, that the Lord Proprietary was not liable to be es-. topped, as other individuals are, or that he had any other of the incidental prerogatives of the Kings of England: he had only such of the direct prerogatives as were expressly granted by the charter.

JUDGMENT AFFIRMED,  