
    GENERAL COURT,
    MAY TERM, 1797.
    John Davidson’s Lessee against Charles Beatty.
    EJECTMENT .for part of a trie* of land ealledKnave’s Disappointment, known and distinguished by the numbers, 281. 55. and 87. on a plat of that part of Knave’s Disappointment called Beatty and Hawkins’ Addition to George Tozun, situate in Montgomery county.
    Three bills of exceptions were taken at the trial of this cause.
    1st exception. The plaintiff, at the trial of the cause,, to make out his title, produced a paper purporting to be a deed dated the 10th of May, 1794, from John Gordon, of the city of Annapolis, conveying the land in question to John Davidson, in which deed was contained a power of attorney as follows: “ And the said John Gordon hath made, constituted and appointed, and by these presents doth make, constitute and appoint, Thomas Johnson, of Prince George’s county, resident in the city of Washington, his true and lawful attorney, for him, and in his name, place and stead to enter upon the said land and premises hereby granted and conveyed, or into some part thereof, in the name of the whole, to enter, and full snd peaceable possession and- seisin thereof, or of some part thereof, in the name of the whole, to enter, and full and peaceable possession and seisin thereof, for him and in his name, and stead to take and have, and after such possession and seisin thereof, or of some part thereof, in the name of the whole, unto the said John Davidson to give and deliver. To have and to hold the same to the said John Davidson, his heirs and assigns for ever, according to the true intent and meaning of these presents, the said John Gordon hereby ratifying, confirming and allowing all and whatsoever his said attorney shall lawfully do in the premises. In witness,” &c. Which deed of conveyance, containing the’ said power of attorney, was duly executed, acknowledged and recorded.
    The plaintiff offered to read the same to the jury, but the defendant objected to the reading of the power of attorney contained in the said deed, unless the plaintiff produced some proof other than the deed itself, to prove the execution of the said power of attorney.
    
      Mason, for the defendant,
    objected that this deed should not go to the jury, until the plaintiff proved a previous fact. John Gordon, the bargainor, executed a power of attorney to a certain Thomas Johnson, to enter on lands and deliver possession thereof to the lessor of the plaintiff. In the deed to the lessor of the plaintiff, this power of attorney is recited, and set out as a part thereof, and recorded. The objection is that before the plaintiff offers this deed to the jury he must prove the power of attorneys for the power of attorney is not such an instrument of writing as gains any credit by recording, because the recording of it is not authorized by act pf assembly.
    
      Martin, for the plaintiff,
    contended it was not necessary to prove the power of attorney. The power of attorney so set out in the deed as a part of the deed, is proved as much as the deed, and every person is estopped to say it is not a part thereof. It was like the case of a deed containing a covenant for further assurance; also like the case of a deed containing a covenant for the payment of money, and like a mortgage deed containing a covenant for the payment of the mortgage money. • These were covenants distinct in their nature from a deed of bargain and sale, yet it has always been the practice, in actions of covenant, in such cases to produce the deed in evidence, and the deed so produced, if acknowledged and recorded, is good evidence to support such action.
    
      The Court were of opinion, and so determined, that the deed itself, with the endorsements thereon, were, without other proof, sufficient evidence to prove the execution of the said power of attorney, and permitted the said power of attorney, without other proof, to be read to the jury.
    To this opinion the defendant excepted.
    2d exception. The plaintiff offered evidence of a title regularly deduced to John Gordon, and then produced a paper, purporting to be a deed of conveyance of the land for which the ejectment was brought, from John Gordon to John Davidson, the lessor of the plaintiff.
    The defendant, to rebut the title of the plaintiff, offered evidence to prove that George Gordon died in the month of September, 1766; that the aforesaid John Gordon, under whom the plaintiff makes title, is the son and heir at law of the said George Gordon; and that the said John Gordon, after the death of his father, entered into the lands mentioned in the declaration, and became seised thereof, and continued so seised until the month of September, 1768.
    The defendant then produced and read to the jury the record of the judgment, and proceedings rendered in the then provincial court of Maryland upon the 18th oí May, 1768, between a certain William Black, plaintiff, and the aforesaid John Gordon, defendant. And also produced and read to the jury the record of certain proceedings in the provincial court of Maryland, upon an attachment, and the judgment of condemnation thereon, in the name of the aforesaid William Black, plaintiff, against the said John Gordon, defendant; which attachment issued on the aforesaid judgment, the 26th of September, 1768, returnable on the third Tuesday of October then next. The sheriff returned that he had laid the said attachment on the lands and tenements of the said John Gordon. Upon which attachment and return, judgment of condemnation was rendered at October term, 1768.
    The defendant then offered to prove, that the lands in the declaration mentioned are parts of the land mentioned in the return upon the said attachment, and also in the said judgment of condemnation upon the said attachment had and rendered. That the said John Gordon continued seised and possessed of the said lands mentioned in the declaration until the execution of the said attachment. And then offered to prove that William Black aforesaid, in virtue of the said condemnation on the attachment, entered upon the lands mentioned in the declaration, and became seised thereof.
    The plaintiff then moved the court to direct the jury, that by the aforesaid judgment of condemnation, the said William Black did not gain any right of property, or right of entry, into the said lands so condemned, and that neither the right of property, or the right of possession, of him the said John Gordon, in and to the said lands so condemned as aforesaid, were lost or taken away by the said judgment of condemnation.
    Key, for the plaintiff.
    A writ issued in the name of William Black against John Gordon. Judgment was confessed and an attachment issued on the judgment. The sheriff returned the attachment, upon which return condemnation was entered, that the lands be condemned, and that William Black havé execution. Upon which judgment of condemnation no process issued to affect the Pr°Pert>'-
    The title to the lands was not devested' out of John Gordon, by this judgment of condemnation. The attachment and judgment has no analogy to the common law mode of execution ; the effect, therefore, of them must rest entirely on the true construction of the act of assembly of 1715, c. 40. The act of assembly was intended to give a remedy in such cases only where no remedy was provided, and not in cases where there was a remedy before. That act relates only to absentees and not to residents, and the first object of the law was to give a remedy by attachment against persons who absconded, and against whom two non ests were returned. The other object was against non-residents.
    There are three clases of attachments. The first where two non ests are necessary, and extends only to persons who remove from place to place. The second extends to non-residents ; there a short note, and one non est, is necessary. The third class is where judgment had been obtained against a resident, who afterwards becomes a nonresident ; the act then authorizes an attachment to issue, to affect the rights and credits. The attachment on a judgment obtained against a resident, could only affect rights and credits. Act 1715, c. 40. s. 7. The act of assembly did not mean to allow the attachment by way of execution, against any but non-residents.
    The attachment is not an execution, but is a necessary process to affect the rights and credits of an absent debtor. On the condemnation an execution is awarded by ca. sa.} ft-fa. or otherwise. The clause of sci. fa. in the attachment resembles the sci. fa. against terretenants. The intention is, that the garnishee should come in to show cause. The attachment would be a circuitous mode, if it were used to affect the goods and chattels in the hands of a defendant present. A fi. fa. would have been effectual in the first instance; why, then, should a circuitous strode of execution be given when the plaintiff had an Immediate remedy by fieri facias. The act provides only for cases where there was no remedy.
    Admit, for the sake of argument, that the attachment was proper j yet the judgment of condemnation does not devest the property out of the defendant. If the property were devested by condemnation, there would be nothing for the fi. fa. to operate on, and yet such an execution must issue against the defendant.
    The property which the sheriff has in the goods taken under a fieri facias, is a qualified one. The goods are in custodia legis. If the sheriff takes lands under a fi.fa. he has a power only to sell; he cannot give the land over to the plaintiff; for it is not devested out of the defendant until the sale is completed. The sheriff, while the lands are in his possession, or in custodia legis, cannot bring an action of trespass, or receive the rents due; he has nothing more than an authority to sell. If the right were devested from the defendant when in the hands of the sheriff under the fieri facias, and the sheriff should die before the sale, where would the title be ? In the heirs at law of the sheriff? That would be the consequence.
    If the sheriff on a fieri facias sells a term for years, he cannot give possession, but must leave the vendee to bring his ejectment. 2 Show. 85.
    Where the residue of a term of years was sold by the sheriff under a writ oi fieri facias, the vendee had a right to the possession, and might peaceably take it. 3 T. E. 296, 297, 298.
    The property of the debtor is transferred to the vendee through the medium of the sheriff.
    Suppose the property is devested out of the defendant by the condemnation, where is the property in the intermediate time between the time of the judgment of eondemnation, and the issuing of the execution? It 
      cannot vest in the plaintiff, for the value of the land might be much above the amount of the debt. Suppose, after the condemnation, the plaintiff sues out a ca. sa., where is the property ? Can it be in the plaintiff, and the defendant still subject to the debt ? And why should a remedy by ca. sa, or fi. fa. be given after the condemnation, when the plaintiff has the land already in satisfaction of the debt ?
    
      Shaaff, for the defendant.
    The defendant in this case rebuts the plaintiff’s title, by showing an attachment on judgment against the party under whom the plaintiff claims for the land in question.
    1st point. That the seizure, return by the sheriff, and condemnation of the land, devested Gordon?s right to the possession of the land.
    2d point. That the seizure and return by the sheriff, the condemnation and subsequent taking possession by the original plaintiff in the attachment, vested in him the complete legal title in the land.
    It is first to be considered whether, after judgment, an attachment can go against the defendant’s lands in his possession. This involves a consideration of the whole law of 1715, c. 40.
    I am willing to admit, that the reason of forming the law was to grant a remedy against absent defendants, and to attach credits; and for this sole object was the third section ; in which it is expressly said, that any of the defendant’s goods, &c. may be attached.
    Under the words, and the uniform acceptation of this section, the goods of the defendant may be taken ; and bince the statute of Geo. II. lands are liable in the same manner.
    The seventh section, under which this attachment issued, has the same words as the third section, and, of «course, ought to have the same construction.
    It may be objected it would be nugatory to issue an attachment against the defendant’s lands after judgment against him, when he might take them under execution of fi.fa. But it is answered, that if the construction is given to the law which I shall give it, no absurdity will follow by letting the party take the goods in specie, when attached fay the sheriff.
    However, the law certainly contemplated cases in which the party might issue his attachments where he might have issued his execution originally, and taken the goods •as if the goods were in the plaintiff’s own hands; and ■«f it should be urged that that part only related to cases where the plaintiff was indebted to the defendant, it may be answered from the act, that the words have a more general import.
    1st point. That the seizure and condemnation devested Gordon's right.
    The attachment authorizes the sheriff to take the property into his possession, and produce it at court.
    It would, therefore, be absurd to authorize him to take and keep it, if the party defendant in attachment had a right to the possession.
    In the case of personal chattels, if the sheriff has actually taken them into his possession, there can be no doubt but the defendant would have no right to the possession ; and as this act was made when personal estate alone was liable to an attachment, the same rule of decision is to. apply to land, which is now liable in consequence of the statute of Geo. II.
    If the sheriff has actually taken the goods, he is liable for them, and must produce them if he be .entitled to the possession.
    This is further confirmed by the command of the writ, which orders him to attach land and goods, &c. and the words being the same, the operation of the expressions ought equally to relate to lands and goods : and when a difficulty arises as to the nature of a process, the terms of it will have great weight in explaining it.
    The nature of every attachment, when directed against property, is to take it into possession.
    Thus on a fi.fa. the property is devested out of a defendant when laid. But it may be objected, that when land is taken under a fi. fa. the sheriff cannot turn the defendant out. 2 Bac. Abr. 331. 2 Show. 85.
    
    I know of no case where a distinction is taken between cases where land is taken under a fi. fa. (as a term for years) and where goods only are; and the case in Bacon and Shower may mean that the sheriff cannot, by violence, turn them out; but does not determine the right of possession. If the sheriff had got exclusive possession, could the defendant have sued him or his assignee for recovery ?
    This is supposing that the seizure alone would be sufficient to devest the title. But the condemnation certainly will. It is the judgment of court that the property attached shall be condemned towards satisfaction of the debt.
    I therefore think, that the debt of the original plaintiff is satisfied to the amount condemned, and the pro-, perty devested from the defendant. If the defendant does not appear within the year, I suppose the debt then absolutely paid, pro tanto; can he then claim possession ?
    This reasoning relates to property actually attached and scheduled, on which I consider, by the condemnation, that the property is devested.
    In the case of a garnishee, where the property remains in his hands, there can be no doubt, because the garnishee then becomes liable for the amount under both the 3d and 7th sections of the act of 1715. Also when the property remains in the hands of the garnishee, the original plaintiff is not barred by the condemnation, but may proceed against the defendant. See 1 Bac. 692. 1 Com. 603.
    It is here to be considered, as the present plaintiff in ejectment claims against this attachment, if he can maintain a suit against the sheriff or his appointee ?
    In the case of goods he certainly could not, if they remained in the hands of the sheriff, because he was bound to keep them ; if they were in the hands of a garnishee5 he could, because the garnishee was answerable in respect of them.
    However it might be, as to destroying the whole right, yet it certainly operated as a pledge until the money was paid ; and it is not contended that the condemnation money has ever been paid. The attachment has never been reversed; therefore, stands as it originally did.
    I conclude that the seizure, return and condemnation, devests the property.
    If the property is devested, where does it vest ? This brings the consideration of the second point, that the seizure and condemnation vested the title in the plaintiff in the attachment.
    1 will consider this case under the two sections of the law, and under both I think the meaning is the same. First, under the third section.
    I contend that under that law the plaintiff, when the property is scheduled and returned, may acquire an exclusive right; but that when the attachment is only laid in the garnishee’s hands, then execution goes generally against him ; that it is not necessary to sell the property where it is scheduled and actually attached.
    Where property is scheduled and returned, the judgment of condemnation is of those particular goods, towards satisfying the plaintiff’s debt.
    To prove that the property cannot be sold, I lay down this position. That the execution must pursue the nature of the judgment; and that on a judgment for a particular thing, a general execution cannot be taken out. 1 Durn. 81. 50.
    j£ t¡-¡;s ¡s right, no execution can go to sell this property, because the executions spoken of are general executions — ca. sa., fi. fa., &c.
    
    
      Ca. sa. it cannot be; nor fi.fa., because the nature of that process is general, and there is no form of execution on any judgment which will affect it. What kind off. fa. issues against heirs, devisees and terretenants ? Is it not a special one to sell particular designated lands ?
    As the judgment of condemnation is of particular property, that alone is to be affected by the judgment, and if the plaintiff cannot sell it, he must be entitled to take it: and in case of goods there is no process which can give actual possession, and where land came to be affected, title might be acquired in the same way.
    I therefore conclude, if any execution is meant, it must be a process to give immediate possession, as an habere facias possessionem, or liberate.
    
    But if the plaintiff is entitled to the possession by the condemnation, he may enter without an execution. 4 Bac. Abr. 459. Co. Lit. 34. b. 1 Co. 106. 10 Co. 38. 3 Com. Dig. 307. 11 Vin. 15. 7 Mod. 66. 1 Burr. 88, 2 Sid. 156. 3 Com. Dig. 293. The case is here put, that in dower it is necessary to take execution. But see the reason of it; until assignment the title remains in the heir.
    It will be said that the reason given in these cases is, that the writ ascertains in certainty the demand; but' that the attachment does not specify the property. But it may be answered, that the case of an attachment is rather a middle .case, and that the return of the sheriff makes the claim certain, which is confirmed by the condemnation.
    I should think the true reason ought to be, that when the judgment ascertains the right, the party ought not fo be driven to an execution to give possession, if it can fee obtained without; and the reason why an execution is required is because the possession is disputed.
    The judgment in condemnation operates like a conveyance, and the execution is designed to give an investiture, and only necessary where the possession is disputed.
    It may be said, that the cases of entry after a judgment has always been where there has been an existing right established by the judgment; but that here a new right is acquired. But it may be answered, that the judgment on condemnation establishes the right.
    This construction does not destroy the operation of the. hws saying that executions may issue — naming them ; because they may issue against the garnishee who has money due from him to the debtor. This is warranted foy the judgment in such cases, which is, that the plaintiff recover against the garnishee so much money, on which a general execution may issue under the law. The executions spoken of in the law only relate to garnishees.
    It is here particularly to be noticed that when the law passed, that goods were only in view, and terms for years perhaps ; and no execution can be found on any judgment where goods have been taken by execution, delivered over in specie.
    An absurdity to grant- an execution to deliver possession, supposing the goods, &c. to be in the plaintiff.
    On the 7th section. If any attachment can go against £he defendant’s own land and goods in his possession, it must be complete without execution, because the executions spoken of there do not extend to him; the words being “ the same execution as against the original defendant himself.” And it would be absurd to have a sale in such case, because that might have been done on the original judgment: and by the express words in the act, goods, &c. may be attached in the plaintiff’s own hands.
    Thus, I think, the sound construction of the law is. that when the property is actually attached and returned, the plaintiff takes it at an appraisement; where it remains in the garnishee’s hands, the plaintiff may have bis general execution against the garnishee, when the property remains his own.
    . The 7th section speaks of attachment as an execution. See 1787, c. 36. 1788, c. 47. 1790, c. 59.
    As to the argument drawn from inconvenience, viz. that the debtor ought to have the benefit of the sales ; that if more property Í3 attached than will pay the debt, it will be injustice to let the plaintiff retain it $
    It is answered, that it will be presumed that the appraisement is right and equal to the value ; if so, no harm is done.
    As to the second objection, it will be the duty of the sheriff to take no more than will pay the debt. If the thing is entire and cannot be divided, the plaintiff will be debtor to the amount of the surplus. Perhaps there will be a lien, and the property be considered as pledged for it. This same inconvenience exists in the case of goods attached and delivered over, and it has always been the practice to deliver them over.
    In the case of a garnishee, the debtor will clearly be bound by the appraisement, because the property, on execution, becomes the property of the garnishee.
    
      The precedents. It has been the practice from the year 1715 to 1774, to deliver personal property over at an appraisement.
    Where real property is attached, they have sometimes Issued a liberate to put the party into possession, but there are many instances in which this has not been done. This proves it to be the practice to derive title by the judgment of condemnation, and it has been contended above, that if title can thus be derived, that a liberate is not necessary. There is no instance in which a fi. fa> has issued to sell the property attached.
    
      
      Mason, for the defendant.
    This question depends on the act of 1715, c. 40.
    1. The seizure and condemnation devested the property out of the defendant.
    , 2. It vested the property in the plaintiff, and no entry or execution was necessary.
    The act is first to be considered as to its effects in relation to goods and chattels, as at its first institution it related only to them.
    As to the plaintiff’s position, that the attachment would lie against none but non-residents. The act by the first section makes two non ests necessary to found an attachment on against a non-resident. By the second section one non est returned is sufficient against a non-resident; -and the seventh section takes in all cases.
    In May, 1793, the attorney-general, in his own case, issued an attachment on a judgment obtained in the name of the state for his use against William Osborn, on which attachment judgment of condemnation was had, and a fieri facias afterwards issued on the condemnation.
    No execution can issue against the defendant, except it be an attachment, and an attachment is an execution. The judgment in attachment is not against the defendant, but against the goods; the execution, therefore, cannot possibly issue against the defendant. What would be the consequence if the construction were otherwise? Suppose the property in the hands of the plaintiff, is he to issue execution against himself ? The attachment in its nature is itself an execution. It is awarded under the act in order to have the benefit of an ex parte judgment. If the party comes into court within the time mentioned by the act, and shows that the plaintiff’s claim upon which he has judgment was satisfied, the court,will award a restitution ; this shows that the law contemplates a specific transfer of the property by the condemnation. The act says, instead of any other execution, he shall be entitled to his attachment. As to the argument that the attachment is no lien upon the property, but only a ground on which to proceed to judgment; the attachment is a devestment of the right from the defendant, at least pro tempore. The judgment of condemnation goes to the goods only taken on attachment, and it condemns them to the use of the plaintiff; the execution must follow the judgment, and can, in this case, have no operation upon any thing else, for the execution is a creature of the judgment, arising out of it, and must pursue it. After condemnation the possession of the defendant is changed. From the year 1721 to.1774, no fieri facias, or other execution, has issued against goods and chattels in the hands of the defendant. Expositions cotemporary with the law are the best evidence of the law, and a long series of decisions involving much property, becomes the law. Many estates depend on this construction. The first instance of laying a fieri facias on lands was in the year 1747, and since that time attachments have been laid on lands. Since the statute of Geo. II. lands are in the same predicament with goods and chattels, and may be affected in the same manner; by that statute-domestic debts were not included, nor did they come within the purview of the law, yet it is the practice at this day not to be shaken, for lands to be taken byfieri facias, and sold for domestic debts. The taking of lands by attachment under the act of assembly, arises out of the construction of the act. In the case of Salmon v. Harvey, a fi. fa. issued and was laid on personal property and lands ; the defendant delivered a schedule and appraisement to the plaintiff in satisfaction. Upon solemn argument the general court determined, that since the extension of the statute of Geo. II. lands were liable to be taken by fi. fa. and that, therefore, there was no difference between lands and chattels since that statute, and that the defendant might compel the plaintiff to take them in satisfaction in the same way.
    Wherever aright is acquired to a specific thing, possession may be taken of it. Where there is a right of entry. .ihe person having the right may enter peaceably. From the year 1759 to 1766, liberate issued on judgments of condemnation. This practice of issuing a liberate may be thus explained: where there was a forcible detainer of the possession of the plaintiff, the liberate issued j but where the condemnation was acquiesced in, and no force by the defendant to keep possession, there the liberate d'ui not issue, because it was not necessary.
    Martin, (Attorney-General,) for the plaintiff.
    From the year 1658 to 1774, (except in a few straggling cases,) the judgment of condemnation alone was not supposed to be sufficient to give a title to .the property condemned, without an execution. Oúi attachment lay/ is founded on the custom of foreign attachments in London. Priv. Land. 255. As to the mode of proceeding. The process as to appraise goods in the hands of the garnishee, and deliver them over. One year and a month is given to contest the claim of the plaintiff. According to the custom of London, goods in the hands of a plaintiff, or of a third person, only are attachable. Notice is given to the garnishee to come and show cause.
    From the similarity of the proceedings under the custom of London, and under the act of assembly, the same construction ought to be given to the one as to the other. Under the practice of foreign attachments no instance can be shown where the property vested in the plaintiff, unless upon execution after condemnation.
    The goods in the hands of the defendant ¡cannot be attached, because, if the process of attachment will reach goods in the hands of the defendant, he is liable to be warned to appear, and it is improbable to suppose such a defendant absent. How can the defendant be absent when you can take the goods in his hands r “ In the hands of any person or persons whatsoever,” canno? raean the hands of the defendant who was absent.
    
      In attachment two things are ascertained ; first, the plaintiff’s debt; second, that the goods are the defendant’s ; .i-ii and whenever property is attached, there must be a condemnation ; then the plaintiff may have ca. sa.,fi. fa., lev. fac. and. if the plaintiff wishes the specific property, he may have e/egit, which will take the property so condemned. But if the plaintiff does issue an execution against the goods, th & fieri facias must be special to take the goods which were condemned. The execution is to satisfy the plaintiff out of the goods condemned. By the construction that execution must issue on the condemnation, we do justice to all parties. But suppose the attachment and condemnation vested the right of the thing condemned in the plaintiff, without a sale or execution, and the debt was 10/. and the lands condemned worth 5,000/. shall the plaintiff have possession of this land, or is it not the most proper construction that the plaintiff shall issue execution and have a sale, so that the surplus may go to the defendant after the plaintiff’s demand is satisfied ? In the case of scire jacios against terretenants, the plaintiff has a right to have his debt satisfied out of the lands ; so it is in the case of an heir at law; there is no right acquired to the specific thing; the lien does not give property, possession, entry or right of entry.
    In 1704 an act passed directing the manner of suing out attachments, similar to the act of 1715, the latter having only a few alterations. The first law of attachment, passed in 1704, is to be found in Liber L. L. No. 3. fol. 1.
    From the year 1704 to 1745, only two cases of attachment are to be found, one in 1708, and the other in 1721, where process issued on a judgment of condemnation. These were the cases of Pagan & Co. v. Gray, in 1708, Liber P. L. No. 2. fol. 231. and Garrett v. Steuart, in 1721, Liber W. G. No. 1. fol. 551. In these cases no goods could be found, and the party prayed leave of the court to issue an elegit, and the court permitted it; there was a jury'sworn by the sheriff, and the land was extended ; why was this done if the defendant’s land could have been taken by the plaintiff under the attachment ?
    The attachment on an absolute judgment is to affect debts due to the defendant, and goods in the hands of a third person. There is a lien on the goods from the time the attachment is laid.
    As to the plaintiff’s having an execution against himself. If goods are attached and condemned in the hands of the plaintiff, an execution may issue against the defendant to levy the money ; but it must be laid on the specific property attached and condemned. The attachment is admitted to be .an execution, and is in the nature of a scire facias; a scire facias is an execution, and a release of executions will release it; the expressions, then, of the act giving attachment, or any other execution, does not prove that an attachment is such an execution as is final, as is a fieri facias.
    
    The property was never devested from the owner by being in the custody of the law.
    In the case of distress for rent, the tenant has five days'5 within which he1 may replevy ; if he does not replevy the goods within that time, the landlord may sell them, and the overplus, after the rent is paid, goes to the tenant. The goods are in the custody of the law ; there is no change of property before the sale ; the property remains in the defendant subject to the lien.
    So in the case of a bankrupt, from the time of the act of bankruptcy, until the assignment, the property is in the custody of the law.
    In the case of a feri facias the goods remain the property of the/defen dant, and are not devested tilla sale is made. Park. Rep. 112. 1 Brownl. 41. Detinue will lie against the sheriff by the defendant, for goods take© in execution, and detained in his own hands ; he cannot detain them, and satisfy the debt out of his own money-but he must sell, and make return of his so doing. Noy¿ lOY- The property is not devested out of the defendant until the last act completing the execution is done. The sheriffacquires no property in the goods taken under execution ; they are in the custody of the law.
    Goods and chattels are taken possession of by the sheriff under an execution, but the case of land is much stronger, for the sheriff does not take possession of the land when he lays his execution; he canno't take possession of a term for years.
    
      If the sheriff on a fieri facias do sell a lease or term of years, he cannot put the person out of possession, and the vendee in, but the vendee must bring his ejectment. 2 Show. 85. 3 T. R. 295. 298.
    On an attachment the sheriff does not take possession of the goods; he returns a schedule and an appraisement, but does not bring the goods into court. If the garnishee removes the goods, he is liable for their Value. By the fotm of the writ of attachment, the sheriff is ordered to bring the goods, &c. to be condemned for the plaintiff, in order that he may have thereof his execution. Prim. Land. 291.
    The first case of lands being taken under a fieri facias for a domestic debt, was the case of Benjamin Tasker v. Christopher Gist, in the year 1740. From the year 1658 to the year 1745, only nine cases are to be found where attachments issued out of the provincial court. Several cases in the provincial court cited, showing that in some instances after condemnation nothing issued, and in others, the attachment and return was considered as an extent, áhd a liberate issued to deliver possession.
    In 1746 and 1747, liberate issued in every case of a condemnation on an attachment. Indeed, from 1744 to 1774, liberate issued generally. In those times it seems to have been a well established practice to issue liberatet and in those cases where no liberate is entered, the prd* sumption is, there was payment- on the condemnation.
    
      In case of a recovery in a real action, or in ejectment, the plaintiff is entitled, to his writ of seisin, and of ha- * . # here fac, pass, to put him m possession; the reason is, because the plaintiff does Hot gain his title by the reeovery, but the recovery is by a decision of the court, that the plaintiff had the right, or the right of entry, before and at the time of the bringing the suit.
    
      Mason, in reply.
    In the custom of London, 281. it is stated that the defendant’s own goods are liable in his hands, by sequestration, which is like an attachment. If a tract of land of 5,000 acres may be taken under an attachment for a debt of 10/., the same inconvenience may happen under the proceedings in an elegit.
    
    A liberate is not necessary in any case except in statute Staple. 3 Com. Dig. 307. 5 Com. Dig. 503. 2 Bac. Abr. 334. Where land is seized, and afterwards the writ of liberate is awarded, the party may presently thereby enter without the sheriff’s delivering possession. Cro. Eliz. 463.
    From 1745 to 1774 there are fifty-three cases of attach* jnent and condemnation of land; nine of them have issued on judgments confessed.
    
      Pinkney's
    
    notes. 1 Salk. 280. Brooke and Smitlu Judgment of condemnation on foreign attachment alters the property, and, if before action brought, is evidence oa non assumpsit.
    
    
      Qumre if, where goods are attached in England, whether the property is any otherwise altered than by vesting it in the garnishee j it certainly does not vest in the plaintiff,
    
      W* Jones, 406. says, that where goods are attached the value ought to be found before judgment, and the reason obviously is, that execution may issue against the garnishee, to the value as of his own proper debt, on which execution either his body or goods may be taken, and as he thus becomes liable for the debt, it is but reasonable that the property should vest in him. This must be the meaning of 1 Salk. 280.
    The garnishee is liable in England after condemnation, as of his own proper debt. Jac. Law Dict. Vid. Priv. Lond. 257. 260.
    
      Vide 2 Bac. Abr. 334. and note the difference between statute merchant and staple.
    
      2 Lill. Abr. 169. On extent the party has no interest in the goods till liberate. Vide also 5 Com. Dig. 474.
    
    He may enter after liberate awarded, but not before. What is the reason ?
    
      ^umre, if attachment against property whereof there Is no garnishee, has not been taken by analogy to extent ?
    
      Vide precedent where liberate always issued. Wm. Jones, 91. property remains in the cognisor on extent, Until liberate.
    
    Attachment and condemnation either requires to be perfected by subsequent execution, or it is an execution in itself; if an execution in itself, of what kind ? An extent is no liberate.
    
    It cannot be an execution in itself. The law gives no direction to appraise, and the appraisement is extra-official. Suppose the property is overvalued, there is no remedy for it. No criterion by which to fix the value.
    
      Vide act 1692, c. 63. Lib. L. L. fol. 172. Lib. W. H. and L. fol. 103. and Lib. L. L. No. 2. fol. 17. Act 1704, c. 14. Lib. L. L. No. 3. fol. 1.
    The title of the act of 1682, c. 63. is “ An act limiting the extent of attachments, and providing what shall be levied on attachments and executions.”
    The preamble, “ For the settling the manner of proceedings on attachments, limiting the extent of them. and providing what shall be levied on attachments and executions.”
    The beginning of the enacting clause is, “ That from henceforth no attachment shall issue out,” &c.
    Chase, J. delivered the following opinions
    The act of 171S, c. 40. provides a special and auxiliary remedy for the recovery of debts in three several cases, and this special remedy is by attachment.
    The first case is that of two non ests returned on a writ against a person resident within the state.
    The second is the case of a foreigner, or a person absent out of the state, against whom one non est with a short note left at his last place of abode, and proof of the plaintiff’s debt, is a sufficient grourid for the attachment.
    The third is the case of an absolute or final judgment, upon which the attachment is to issue.
    The third section prescribes the mode of proceeding.
    The attachment is awarded against the goods, chattels and credits of the defendant, and contains a clause of scire facias, commanding the sheriff to make known to the person in whose hands the goods, &c. are attached, to show cause why they should not be condemned, and execution thereof had.
    It is apparent in the case of the garnishee, the attachment is in the nature of a scire facias, because he can come in and plead to it, and upon a judgment of condemnation execution is to be taken out, and the execution will suit and correspond with the garnishee’s case. If a debtor be a defendant, a ca. sa. or fi. fa. may issue, at the election of the plaintiff. If goods and chattels are condemned, a fi. fa. will issue to levy the debt and costs by sale of the goods so condemned. The words “ or otherwise” were inserted that the provision might be ample, and take in every kind of execution which might foe applicable to the case, the elegit in particular
    
      Where goods are seized or taken by a sheriff on a fieri facias, they are in the custody of the law. The sheriff has a special or qualified property in them, and can maintain trespass or trover for them. He is to sell them and levy the plaintiff’s debt and costs. He has a qualified interest for a special purpose.
    The sheriff on a fieri facias at common law cannot deliver the goods at an appraised value to the plaintiff in satisfaction of his debt. He cannot retain them and pay the plaintiff his debt and costs. His authority is to sell and bring the money into court. When the sale is made, his power over the goods ceases, and the vendee may take possession.
    By the statute of 5 Geo. II. c. 7. lands are made liable to the payment of all debts, and are subjeetto the like reme-.' dies, proceedings and process in any court of law or equity that personal estates are.
    Under the act of 1715, since this statute, the same process and mode of proceeding is to be pursued against lands as against personal estates.
    The judgment of condemnation is not for a specific thing, by the delivery of which the judgment is satisfied; but the goods are condemned, and rendered liable to execution and sale, for the purpose of satisfying the debt and costs recovered by the plaintiff.
    Another circumstance, not adverted to by the counsel, proves it never was the intention of the act that the specific goods taken on the attachment should be delivered to the plaintiff in execution and satisfaction of the debt j there is no mode prescribed for ascertaining the value of the goods attached at which they should be delivered over by the sheriff on the attachment. A jury is not called in to make a valuation, as in the elegit ; appraisers are not to be summoned and sworn for the purpose, as in the fieri facias law, passed the year following, nor is the? sheriff empowered to make a valuation; but of his own accord, at his will and pleasure, and without authority fee sets a value on the goods attached; which being without authority is no valuation.
    By the 7th section, any person having, or who shall obtain a judgment, dn the ordinary way, or by the common course of proceeding,) without complying with the requisites prescribed in the third section, may, instead of any other execution, take out an attachment against the goods, chattels and credits of the defendant in the plaintiff’s own hands, or in the hands of any other person or persons whatsoever; which attachment is to contain a clause of scire facias commanding the sheriff to make known to such person or persons in whose hands or possession the said goods, chattels and credits of the absent defendant shall be attached, to appear and show eause why they should not be condemned, and execution had.
    By this clause also, the attachment, from its nature and operation having the clause of s ire facias, and giving the party a day to come in and plead, must be considered as a scire facias.
    
    According to the sound construction of this clause, and the obvious and plain meaning of the makers, to be co lected from their words, an attachment cannot issue against goods and chattels in the hands of the defendant.
    The words are, “goods and chattels in the plaintiff’s own hands.” The reason is plain, to subject such goods to the payment of his debt, and to acquire a preference; for else some other creditor might lay an attachment on the goods of the defendant in the plaintiff’s hands.
    The next part of the clause, “ or in the hands of any other person or persons whatsoever.” These words, from the generality of the expression, seem to comprehend all persons, and to take in the defendant; but when coupled with the subsequent words of the clause, “ in whose hands or possession the said goods, chattels and credits of the absent defendant shad be attached,” the clause will read, any person or persons whatsoever having goods, chattels and credits of the absent defendant in his hands.” But if an attachment could be laid on goods in the defendant’s hands, there must be the same proceeding as in other cases.
    Now as to the intention of the makers. This act was providing a remedy for extraordinary cases, and never contemplated the case where an execution would be effectual in the first instance.
    For what purpose should an attachment issue on an absolute judgment against goods and chattels in the hands of the defendant ? Not for the sake of a circuitous, round about, dilatory way to accomplish what might be effected without it. This could answer no purpose but to create delay, and enhance the expenses of the suit, objects not in the contemplation of the legislature.
    The intention of this clause was to enable the plaintiff to come at goods, chattels and credits belonging to the defendant, which were in the hands of other persons besides the defendant, even in the plaintiff’s own hands, and the clause, according to the words and intention of the legislature, must be confined to those cases.
    For these reasons I am of opinion that the attachment issued irregularly, and ought to have been quashed, and the possession restored to the defendant by the sheriff, and that the plaintiff in that suit acquired no right in consequence of the attachment, nor was the right of the defendant devested out of him.
    A practice not conformable to the act of assembly, nor warranted by it, nor sanctioned by the decisions of the court, can have no influence in deciding this case. I consider it as a case of the first impression, and I feel myself at liberty to determine according to my judgment of what ought to be the proceeding under the act.
    
      a Whereupon the court were of opinion, and directed the jury, that by the aforesaid seizure under the attach® ment and judgment of condemnation thereupon, the said William Black did not gain any right of property to, or right of entry into, the said lands so condemned; and that neither the right of property or the right of possession or entry, of him, the said John Gordon, in and to the said lands so condemned as aforesaid, were lost or taken away by the said seizure under the attachment or judgment of condemnation thereupon.”
    The defendant excepted to this opinion of the court.'
    3d exception. The plaintiff, to make title to the lands in the declaration, offered in evidence an instrument of writing, purporting to be a deed of conveyance from John Gordon to John Davidson, the lessor of the plaintiff, dated the 10th of May, 1794, being the deed mentioned in the first exception.
    Whereupon the defendant, by his counsel, alleging that the land in the declaration mentioned is within the territory of Columbia, and offering by parol evidence to prove the same, objected that no interest or estate passed by the said deed, it not having been recorded in pursuance of the act of assembly of the year 1791, c. 45. by the clerk for recording deeds of land within the territory of Columbia.
    
    And thereupon it was insisted, on the part of the plaintiff, that, to entitle the defendant to object against the' operation of .the said deed, he ought to have located on the plats returned in this cause, that part of the territory of Columbia lying in this state, so that it might appear that the land mentioned in the said deed was within the said territory; and also that it was necessary the defendant should prove to the jury that such commissioners as are in the said act mentioned had been appointed, and that they, or some two of .them, had appointed a clerk, according to the provisions of the said act, within six calendar months after" the execution of the said deed, and that the said clerk had duly qualified j and the plaintiff, by his counsel, prayed the opinion of the court accordingly.
    
      
      Shaaff, for the defendant,
    objected to the deed being read in evidence, it being for lands lying within the ciistrict of Columbia, and not recorded among the records of the district. That by the act of assembly of N-vember, 1791, c. 45. s. 7. the commissioners of the city of Washington were authorized to appoint a clerk for the recording of deeds for all lands lying in the district.
    By section 8. no deed can operate to transfer any lands within the territory of Columbia, unless recorded by the clerk appointed by the commissioners, within six calendar months from the date.
    That it is admitted the lands in question lie within the district of Columbia, and the deed hath not been recorded by the said clerk amongst the records of deeds.
    
      Key, for the plaintiff.
    The defendant must show that commissioners have been appointed, and that they have appointed a clerk pursuant to the seventh section of the act.
    The defendant will not be permitted to prove the lands lie within the district of Columbia, as he hath not located the said district by which it can appear that the land lies within the territory. Suppose the case of a large manor, and there was a' contest for a smaller tract of land lying within the manor, the manor must be located on the plats in the cause, before the party claiming would be permitted to prove the land lay within the manor.
    
      The Court determined they were bound by law to take judicial cognisance that there was such a board or body corporate as the commissioners of the district of Columbia, and such an officer as the clerk of the commissioners.
    The court also decided that they were bound to take judicial notice of the district of Columbia., and that the defendant might prove that the land in question lies within the district of Columbia, without its being located on the plats, the lines and extension of it being delineat d, described and admitted by a law of the state.
    The opinion of the court appearing on the bill of exceptions was, “ That the said deed, for want of being recorded, in pursuance of the said act, did not pass any estate or interest to the lessor of the plaintiif; and that the court were bound to take notice of the district of Columbia., and that there were such commissioners and clerk appointed.”
    To this opinion the plaintiif excepted.
    The plaintiif then oifering evidence to prove a title by possession under the statute of limitations;
    
      
       Mr. Pinkney had been employed as eonas?Ü before he left the United States on a foreign mission-
    
   Chase, J.

delivered the following opinion of the court:

Where a person shows title to a tract of land, as for instance Blackacre, and is in possession of part, possession of part is possession of the whole.

Where a person claims by possession alone, without showing any title, he must show an exclusive adverse possession by enclosure, and his claim cannot extend beyond his enclosures.

The reason is obvious, and the determination, when considered, will be found to correspond with the principles of justice, and to be in favour of the rightful owner of land, and against the intruder or trespasser.

Two principles, generally recognised and sanctioned by the decisions of the court, when understood, will show the propriety and justice of the determination. A title to a tract of land, as Blackacre, with possession of part is possession of the whole tract. Where two are in possession of a tract or a house, it is his possession who has the right.

According to the first principle, right and possession of part being possession of the whole, nothing can exclude the rightful owner from the advantages of his general possession, or operate in derogation of his right, (consistent with the second rule,) but acts of ownership done by the intruder, which unequivocally show a claim of title in opposition to, or adversary to, the rightful owner, and such acts as necessarily exclude him from enjoying- or participating in the advantages derivable from the possession.

The plaintiff appealed to the court of appeals. At June term, 1798, the appeal was dismissed by the appellant’s attorney.

Opinion of John Thomson Mason, Esq. given before the above suit was brought.

John Gordon, in a manner not necessary upon the present occasion to be explained, became seised in fee-simple of and in a tract of land called Knave’s Disappointment: being so seised, William Black, of London, merchant, in 1768, obtained a judgment against him for the sum of 1,273/. 6s-. 2d. sterling, besides costs of suit in the provincial court. Upon this judgment an attachment under the act of 1715, c. 40. was sued out, and laid upon the lands called Knave’s Disappointment, which were appraised to the sum of 500/. sterling, and, in October, 1768, were condemned upon this attachment.

The whole of this business was transacted by Mr. Stephen West, now deceased, who at that time acted under a power of attorney from William Black. Upon the 1st of June, 1770, Stephen West, as attorney in fact for William Black, for the consideration of 500/. sterling, sold and conveyed this land to Adam Stewaft, who, on the 10th of the same month, for the consideration of 550/. sterling, sold and reconveyed the same land to Stephen West in his own right. On the 7th oí July, 1770, Stephen West, for the consideration of 900/. sterling, sold and conveyed this land to Charles Beatty and George Fraser Hawkins, who laid the same off into lots which they called The Addition to George Town, and sold and conveyed them to the present holders, or those under whom the present holders now claim.

John Gordon at this time set up a title to this land, but offers terms of compromise to the tenants in possession»

The ohject of this opinion is to advise the present holders, as to the expediency of accepting on rejecting those terms of compromise. To this end it will be wholly unnecessary to give any opinion as to a great part of the case above stated. If the right be not in John Gordon, the present holders can derive no benefit from a compromise with him; or if the right be in him, and his remedy to enforce that right be gone, they have not any thing to fear from him.

. I shall, therefore, on this occasion, confine myself to two inquiries.

1st; Whether at this time there is in John Gordon an existing title to the lands in question ?

. 2d. If there be such a title, whether there be a l'emedy to reduce that title into possession ?

The first question will turn upon the condemnation in 1768, under the act of 1715, c. 40.

If this act of assembly was at this day res integra, and now for the first time to receive a construction, it would probably create some difficult questions. When taken in some points of view, the condemnation seems to vest the property condemned in him for whom the judgment of condemnation was rendered; and yet some other expressions of the same law, seem strongly to imply the necessity of an execution to carry that judgment into effect. And it will perhaps be no strained construction of the act of assembly, to make it afford to the plaintiff an option to take the property upon the condemnation subject to redemption at any time within one year,- or to have the property sold under execution, and hold the proceeds, thus subject to the demand of the defendant.

The true and genuine construction of a statute, is to gratify the meaning and intention of the makers thereof; and the expositions of judges and lawyers cotemporary with the law in its origin, afford the strongest evidence of what that intention was. The constant practice under that law, from its passage in 1715 to the late revolution, has been to deliver over the property, upon a condemnation, to the plaintiff, with a view to vest it in him ; and I am told that no instance can be adduced ‘of a fi. fa¿ having issued upon a condemnation under attachment.

When a statute susceptible of divers expositions has been proceeded under, and enforced by, a competent jurisdiction, that construction which has been at first adopted will not be easily changed, and particularly at the same tribunal. But when a construction thus adopted has been invariably pursued, for a series of sixty or eighty years, and innumerable titles are acquired and held under the law thus expounded, that exposition itself has gained the strength and efficacy of a law, and will never be shaken. A contrary doctrine-would introduce that uncertainty which the law abhors; and in this particular instance defeat a number of titles, held under a long and uniform series of judicial proceedings.

I am therefore of opinion, upon the first point, that the condemnation in 1768, did vest the legal estate of Knave’s Disappointment in William Black, in fee-simple, and consequently, that there is no existing title in John Gordon.

But to consider the subject in the other point of view, and supposing the title of John Gordon to be good, it may, nevertheless, be a naked right, without a remedy to reduce it into possession, or make it effectual.

By the existing law of the land, no man can ent- r into lands, or support an ejectment after twenty years, to be computed from the time that his right of entry or title first accrued.

In 1768 the condemnation took place, in 1770 the sale to Beatty and Hawkins, who, in the same year obtained a complete exclusive possession - of the whole, which is evidenced by the survey of the land, laj ing it off as a town, and the sale of the lots. Since that period of time nothing has been done by John Gordon to defeat the possession, nor has there been any act of the tenants amounting to a dereliction of their possessions, or evidencing an intention to do so. Under this view of the ease, then, Gordon has lost his remedy by ejectment even if he has a title. Nor do I think the circumstance of many lots lying unimproved and unenclosed, will place those lots in a different situation from the others. The extent of the possession acquired by Beatty and Hawkins is well ascertained j it will cover those who purchased under them, and must, in contemplation of law, continue until it be defeated by some adverse act, or relinquished and abandoned by the holders. Neither circumstance has an existence in fact; and the latter can never be presumed, because it is absurd to suppose that men purchased without an intention to hold; and yet if their conduct be construed as a desertion of the possession they had acquired, this desertion took place the very moment after the purchase.

To suppose that an actual possession of every inch of a tract of land by enclosure is necessary to preclude a right of entry under the statute of James, is to destroy the operation of that statute ; for it is such a possession as was probably never had in this country. So, too, to suppose that an occupancy by being on the land, or even by actual enclosures, for every moment of time in the whole twenty years is necessary, would produce the same effect as it would be to suppose such an occupancy as never existed anywhere.

Upon the whole, my opinion is, that John Gordon has no title to the land called Knave's Disappointment, and even if he has a title, he has lost his right of entry from length of time ; and, therefore, my advice to the present holders is, to enter into no terms of compromise whatever with him, or with Major John Davidson who claims under him.

Gorgetown, June 14, If94.

John T. Mason,  