OCTOBER TERM, 1726.

#### John Digges’s Lessee *against*John Beale.(a)

THIS was an ejectment for 750 acres of land, part of a tract called Barbadoes, situate in *Charles*County. At the assizes held for *Charles*County a special verdict was found. It stated that by the several conditions of plantations, published at several times by the Right Honourable Cecilias, late Lord Proprietary of *Maryland,*containing encouragement to the subjects of *England*to come into the Province of *Maryland*to inhabit, and the terms upon which persons coming into the said Province might have land therein. That *Walter*Bayne, late of *Charles*County, deceased, was an *English*subject, and after the publication of the said conditions of plantations, came into the Province of *Maryland*and brought several other *English*subjects with him, in the year 1663, and that the said *Walter Bayne*had complied with the terms and conditions so published, whereby he was entitled to 750 acres of land in any part of the Province of Maryland, not before reserved for the Lord Proprietary’s own use, nor surveyed for any other person. That the usual method of acquiring estates in land within the said Province from the first settlement thereof, hath always been and still is, to issue warrants or precepts forth of the land office directed to his Lordship’s surveyors, who were always sworn officers, commanding them to lay out the quantity of land mentioned in such warrant or precept, for the person therein mentioned, in any part of the Province, not before surveyed for any other person, nor reserved for his Lordship’s use, and to return a certificate of the survey, of the quantity of land mentioned in such warrants or precepts, containing the situations, *68metes and bounds, and the day, month, and year, in which such surveys were made, upon which return the person for whom survey or surveys was made, was entitled to his Lordship’s grant for such land, and by virtue of such survey and grant, to an estate of inheritance in fee-simple therein : Provided that the land mentioned in such grant^ was not before thereof either reserved for the Lord Proprietary’s own use, or surveyed for some other person. That the usual and only way whereby the privity of reserves for his Lordship’s use, and other surveys for private persons, and the estates in all the lands in Maryland, has been and still is determined, is by the dates of the certificates of the several reserves and surveys, containing the particular situation, and metes and bounds of such reserves or surveys, which certificate always contain the particular time wherein such reserves or surveys were made, with the metes and bounds thereof, which always have been and still are returned into and entered in his Lordship, the Lord Proprietary’s land office, where all reserves and certificates of surveys are entered, and whence all warrants of precepts for taking up land are issued.

That by virtue of a warrant or precept issued out of his Lordship’s land office in the usual form, for 750 acres of land, his Lordship’s sworn surveyor on the 19th *oí December,*1663, surveyed for the said *Walter Bayne 750*acres of land in *Charles*County, and returned his certificate thereof into the said office, in the following words, to wit: “ *19th December,*1663, Laid out for *Walter Bayne*of this “ Province, gentleman, a parcel of land in *Charles*County “ called *Durham,*lying in the woods on the east side of the “ *Main Fresh Run*of *Port Tobacco Creek,*beginning,” &c. “ containing and now laid out for *750*acres more or less, a to be held of *Zachia*Manor.” That the land was after-wards granted by the then Lord Proprietary, in due form of law, to the said *Walter Bayne,*by a grant dated the 7th of *September,*1666. By virtue of which grant the said *Walter Payne*was seised of the said land in fee, and being so *69thereof seised, by his last will and testament in writing, duly executed and proved, dated the 12th day of April, 1670, gave and devised the said land unto his daughter *Eleanor*and her heirs and assigns forever, and shortly after died. That the said *Eleanor*by virtue of the devise aforesaid, was seised of the said land. That after the death of the said *Walter*Bayne, to wit, on the 10th of *Fe*bruary, .1673, the said Eleanor, then being a minor of the age of six years, a *scire facias*issued out of the Chancery Court, the entry whereof and the proceedings thereon are recorded in the records of the said Court, in the words following, to wit: “ Command was given to the sheriff of “ *Charles*County, that whereas we did by our letters pa- “ tent under our great seal of our said Province of *Mary-*“ land, bearing date the 7th day of September, in the year “ of our Lord 1666, for the consideration therein named, “ grant unto *Walter*Bayne, of our said Province, a parcel “ of land called Durham, lying in the woods on the east w side of the *Main Fresh Run*of *Port Tobacco*Creek, “ containing and then laid out for 750 acres more or less, “ as by the said grant remaining upon record, relation “ being thereunto had more fully and more at large, it doth “ and may appear; now for that we had long before that “ time reserved for our own use, a parcel of land called “ *Pangay a Manor,*of which the said parcel of land is *part;*“ and the said *Walter Bayne*being sensible thereof, frau- “ dulently procured our grant aforesaid, to the ,disinheri- “ son of us and our heirs of the premises: and the said <s *Walter Bayne*being since deceased, we do command “ you that by good and lawful men of your bailiwick, you “ make known and give warning to the heirs of the said “ *Walter Bayne,*or any assigns that claimeth the same 15 under him, that they be before-us in our Court of Chan- “ eery the' tenth of *February*next, wheresoever we shall “ then be, to shew cause if any they have, wherefore “ the said letters patent of the aforesaid land as aforesaid •“ made, ought not to be revoked and annulled, and the *70*U*same into our hands be seised; and to do and receive « what our said Court shall do or grant to be done in this “ behalf; and how you shall execute this precept that you “ shall make known to our said Court at the day aforesaid: “ and have you there this writ. At which day, that “ is to say, the 10th day of February, in the 42d year of “ the dominion of Cecilias, *&c.*Anno Dom. 1673, *John*“ Allen, the high sheriff of *Charles*County, returns the said “ writ endorsed as follows, viz. By virtue of this writ, I u have by *John Grub*and *Clement*Thompson, good aqd “ honest men of my bailiwick, made known unto the widow “ of the within named *Walter*Bayne, that she be and ap- “ pear at the day and place within contained, to shew cause “ if any she hath, as by the writ within I am commanded. “ *John*Allen, sheriff. Whereupon *Eleanor Bayne,*widow “ of the said *Walter,*being called, appeared by her son'-in- “ law, *Mdttherw Hill,*of *Charles*County, gentleman, who “ surrendered up the said grant of the land called *Durham, “*into the hands of the said Lord Proprietary, and the “ Court ordered the same to be cancelled, which was done *“*by tearing off the seal in open Court, and further ordered “ that the record of the said patent be vacated, obliterated *a*and scored out by the Honourable the Chancellor of this “ Province, and this Court do adjudge, order and decree “ the said land called *Durham,*in the said patent named, “ to be seised into the hands of the Lord Proprietaiy; and “ that the said Lord Proprietary (notwithstanding the grant “ aforesaid, by the said *Walter*surreptitiously obtained) is “ lawful and right owner of the said land and premises, “ and every part and parcel thereof, and the same may “ possess or dispose of at his pleasure.”

That it doth not appear by the Chancery proceedings, but that the said writ of *scire facias*was issued, returned, and judgment rendered thereon the very same day.

That although the proceedings aforesaid, vacating the grant to die said *Bayne*were carried on with so much speed, yet that the land called *Barbadoes,*which as the plaintiff alleges, includes the land called *Durham,*was-. *71surveyed for *Elizabeth Warton*before the impetration of the writ of *scire facias*aforesaid, to wit, on the 24th of September, 1673, and stated by the certificate returned to be land lying in the manor of *Pangay a.*

That the first entry that was made of the reserve of *Pangay a*manor in the land office, was on the 1st day of May, 1665, which entry did not contain certain metes and bounds of the said manor; nor does it appear that the said manor was surveyed, nor the metes and bounds thereof reduced to any certainty until the 24th of *April,*1667.

That *Mathevj Hill*in the proceedings mentioned was neither guardian to the said Eleanor, nor a person learned in the law, nor a practitioner in the Court of Chancery,. That the grant of the said land to the said *Walter*Baynj was enrolled among the land records of the Province of *Maryland,*and that the enrolment thereof is not yet can-celled or altered, unless the marginal entry aforesaid be a eancelment of the said enrolment. That authentic copies from the records of such grants have always been deemed, adjudged and taken to be as good and conclusive evidence inlaw as the original grants under the proper seal and in due form. That the usual manner of rendering, enterings recording and enrolling judgments and decrees in the several Courts of law and equity in *Maryland,*and executing such judgments and decrees, have always been and still are according to the laws of *England*and the usage and practice of the Courts of law and equity in Westminster„ That it hath been the constant custom when land has been laid out within the bounds of lands formerly surveyed for the grantees voluntarily to surrender their grants in order to obtain new warrants for the same quantities of land elsewhere ; which grants upon such surrender have been can-celled in the Provincial Court, and entries made in the margins of the records of the enrolment of such grants, at the charge and instance of the grantees, in the same manner as the entry in the margin of the enrolment of the said *Bayne’s*grant; and that the usual manner of entering the vacation of such patents in the land office, is by *72making marginal notes in the books where such patents are recorded. That the said *Eleanor*the devisee in the year 1684, being then of the age of seventeen years, intermarried with one *John*Stone, deceased ; that she the said *Eleanor*was covert of the said *John*by the space of sixteen years ; and that then the said *John*died, to wit, in the year 1697; that the said *Eleanor*survived .the said *John ;*and about eighteen months after his death, intermarried with one *Hugh Tears,*which same *Hugh Tears*died about a month after his marriage with the said Eleanor. That the said *Eleanor*after the death of the said *Hugh Tears,*to wit, on the 22d of *June,*1700, intermarried with *John*Beale, the defendant, by whom she had issue, *Richard Beale*and *John Beale,*now living. That the said *John Beale*and *Eleanor*his wife, in the .year 1704, commenced their action of trespass and ejectment in the Provincial Court for the recovery of the said land, wherein it was so far proceeded that a verdict was found by the Jury ; but it does not appear that any judgment was rendered thereon.(*a)*

That it was usual and customary to require surveyors to mention in their returns, or certificates of surveys the names of the manors or honours of which lands should be held ; and that the surveyors have been informed of the designed names of such manors or honours, before the situation or bounds of such manors have been reduced to any certainty, or any survey thereof made. That the said manor of *Pangay a*contains about 6,000 acres, exclusive of the said 750 acres, called *Durham.*We find that the' .tract of land called *Barbadoes*contains 4,540 acres of land, exclusive of the 750 acres. That the recital in the grant of 400 acres to the said *Eleanor*Bayne, daughter of *WEter Bayne,*viz. “ That the widow of the said *Walter*“ had surrendered the grant of the 750 acres called *Dur**73M A®» into the Secretary’s Office to be vacated,” is false ; and that the said grant was not surrendered otherwise than as mentioned in the proceedings upon the *scire facias.*That the said *Eleanor Bayne*when the grant of the 400 acres was made, was an infant of nine years of age ; that the said 400 acres is not of half the value of the said *750*acres *;*that the said Eleanor, when she arrived to the age of twenty-one years, nor at any time after, did not agree to the said grant, nor accept of the land therein mentioned; that the now defendant hath always disclaimed and still doth disclaim the same; that several tracts of land lie Within the reputed bounds of the said manor of Pangaya, and were granted long after the survey of the *750*acres called Durham,, which were not granted as part of the said manor, but according to the conditions of plantations already mentioned, are still held and enjoyed, by the patentees and those who have their estates, by and under their original grant, &c. And if upon the whole, &c.

George, attorney for *plaintiff.*— Dulany for defendant.

Dulany, for defendant.

Two things are to be considered. 1st. The effect of the judgment for vacating the grant to *Walter Bayne.*2d. If that judgment be irregular, how *Beale*can avoid it. "Whether by plea or writ of error, &c.

This judgment is void on many accounts. 1st. It is rendered against a minor, and that minor was not called to make a defence, a right to which every one living is entitled to. By *Magna C'harta*“ *nullus liber homo capiatur*a *vel imprisonetur aut disseisietur de libero tenemento suo*“ *vel libertatibus vel liberis consuetudinibus suis, aut*utla= *il*getur, *aut*exuletur, *aut aliquo modo*destruatur, *nec super*“ *cum*ibimus, *nec super cum*mittimus, *nisi per legale ju-*“ *dicium parium suorum, vel per legem terree.”*c. 29. *% Inst.*45* And by 16 *Car.*I. c. 10. declaratory ©f the common law.

*742d. This judgment is evidently erroneous, being contrary to law. For on a *scire facias*to vacate a patent the Court only has the power to cancel the patent. 4 *Inst. 79.*88. It is evidently erroneous, because the infant is condemned unheard. 2 *Roll. Rep. 17. Holford*v. *Platts. Cro. Jac.*465. *Infant's*Law, *27,*28. 30, 31. *Law of*Error, c. 22. *Beale*has no remedy against the judgment. He is injured by it, and yet he can have no writ of error, his wife not being a party to the *scire facias.*2 *Mod.*308. 2 *Roll. Rep. 17. Holford*v. *Platts.*1 *Roll. Ab.*809. And although an assize is a *festinum*remedium, and specially provided and favoured, yet it is not so with a *scire facias*to repeal a patent *nisi pro bono publico.*In the case of *Darcy*v. Jackson, Palmer, 224. Baron et feme levie fine, la feme eteant deins age, connusee suffer un recovery, in que il vouch le baron et feme et eteant deins age, appeare come vouchee per attorney et n’est guardian, lui semble que ceo est error, *Car.*VII. *H.*IV. 16. un port error et allege qu un appeare per lui come attorney, et n’ ad garrant; car el ne poit doner a lui garrant, car infants sont in protection del ley ; et ne respond si non per guardian elect per le Court ou per roy. Est dit que ley ne trust infants in matters tendant a leur inheritance, 225. *Chamberlaine*J. quant feme appeare en common recovery come vouchee oves baron per attorney le feme eteant dans age, soit error, car al common ley en touts cases, soit infant plaintiff ou defendant, doit sue et etre sue per guardian tanq. &c. W. 2 cap. 15. W. 1 cap. *47.*per prochein amij, 244. *Houton.*J. II teigne que le appearance del, feme deins age per attorney est error, 250. *Dodderige.*J. Accord, 252. Chief Justice. Accord, *257.*If an infant makes a warrant of attorney it is void. *Rep. in*Parliament, 153. 953. If the guardian mispleads to the prejudice of the infant an¿ action lies. *Palm.*252. Vide 3 *Mod.*221. Fines and recoveries are common assurances of the realm, and are therefore much favoured. *Bro. Intro.*1. It is always supposed at least that the person against whom it is suffered has received a compensation, yet its being suffer*75ed by an infant is erroneous, so careful is the law of the estates of infants that it may be reversed. In the case at bar an infant is disinherited by colour of justice and no guardian was appointed against whom the defendant may have a remedy for mispleading. No person was appointed to defend the right of a helpless infant. The infant was not made a party to the proceedings, and thereby was ousted of his right to error and attaint. This judgment is more erroneous and more unjust in all its circumstances than any of the judgments mentioned in the cases cited, Which have been avoided by pleading, or reversed for error. In the case of *King*v. *Dilliston,*3 *Mod.*221. error to reverse a judgment in ejectment, copyhold land was held of a manor of which *H. W.*and wife were seised of for life, remainder to *J. B.*in fee. It was a custom of the manor, that if any customary tenant should surrender his estate, that such surrender should be presented at the next Court of the manor, and public proclamation made three Court days afterwards, the party to whose use the surrender was made, to come in and be admitted tenant, and if he refused, then after three proclamations made, the stewart issued forth a precept to the bailiff thereof, to seize the copyhold as forfeited. The Jury found that *H. W.*and wife and *y. B.*made a surrender out of Court to the use of *R. F.*and his heirs who died before the next Court, and that *y. F.*an infant was son and heir. That after the surrender» three proclamations were made at three several Courts held for the manor, but that *J. F.*did not come to be admitted tenant; that the stewart issued the precept to the bailiff, who seized the land as forfeited to the Lord of the Manor, who entered and made the lease to the plaintiff, upon which the defendant re-entered. The single question upon this special verdict was, whether this was a forfeiture and so a good seizure to bind the right of an infant, and it was resolved by Eyre, *Gregory*and Dolben, against the Chief Justice, that the infant was not bound. The Chief Justice argued that infancy cannot protect an estate, to which the infant hath no right till admittance, for till then he has nei - *76*thtr jus in re nor jus ad rem.*That itwas a condition aunexec^ t0 estate to be performed by the infant, by which is bound notwithstanding his nonage, otherwise his estate is forfeited,

(a)

**Vide ante, *Digges*v. *Beale, April*Term, 1705.

(a)

**See the case of *Beale*et Ux. Lessee v. *Edward Diggcs, April*Term, 1705, ante, p. 26.

It is to be noted, there is a difference between such conditional estates where the Lord has an interest, and is deprived of it by the infancy, &c. and between the present case. It is a fundamental and immutable principle of *Magna Charta*that justice must not be sold. So it is, that no man ought tobe condemned unheard. If then a sentence be passed against a person unheard, and such sentence, till it be reversed, is to have the same force and effect with the justest j udgment, or a j udgment in which only some legal formalities have been omitted, or a judgment which though erroneous, has been pronounced by the Judge after he had exercised all the faculties of his mind and understanding, to discriminate the truth or falshood, justice or injustice of the allegations of the contending parties; and the person against whom such sentence has passed unheard, is obliged to be at the expense of reversing such judgment; can he be said not to buy justice ? To this it is objected that all erroneous judgments which are allowed to be voidable, and indeed all manner of judicial proceedings which are attended with a charge are liable to the same objection. To this it is answered when two parties contend for any thing, it cannot be known who has the right, till all the evidence relating to it can be brought to light and a proper examination, which cannot but be attended with a charge, which -the aggressor generally pays; and if after all,, the Judge is mistaken, either in the force of the evidence or makes wrong inferences from, and gives an erroneous judgment, that is a determination of the matter in dispute, till a further examination of it, by which something arising from the nature of the evidence which was at first overlooked may be discovered, or just inferences deduced so as to forma right judgment — this examination is also attended with charge, but free from the imputation of selling justice. But in the former case, where, by the very right of nature,*77every man living who is neither an idiot or lunatic, cannot but know that every person has a right to be heard in defence of his Fife, his liberty, or his property. And to put a man to the expense and fatigue of a formal proceeding to reverse such a judgment, is surely a selling hint justice, or which is the same thing, putting him under the necessity of buying it. In *Hutchinson?s*case, 3 *Lev.*36.' where a fine was levied by an infant, the Court vacated it upon inspection of the record. A judgment by default after the appearance of an infant by guardian shall bind him, but not if he never appear, or if he doth appear in person and make default. 3 *Salk.*196. pi. *7.*

Errors must be assigned before a *scire facias ad aud. errores. Lev. Ent.*88, 89. *Clift. Ent.*313. 315. 1 *Lutw.*854 *a.*Where the Court find a title in the King, they ought *ex off.*to give judgment for him though he' is no party, *Vaug.*299. If the Proprietary has such a prerogative as it is contended for, then he appears to have been deceived in his grant, and the grant is therefore void. A grant of a chattel interest in land in fee by the King is void. 3 *Leu.*134. And if the King is deceived in the true value of the land, the grant is void. 1 *Rep.*52. 11 *Rep.*11.

*The Court*gave judgment upon the special verdict for the defendant. The plaintiff appealed to the Court of Appeals.

Lib. W. G. No. 2. folio 513.

The Court of Appeals at *February*Term, 1728, 9. affirmed the judgment of the Provincial Court, and the appellant prayed a further appeal to the *King in Councilf*which was granted.