APRIL TERM, 1763.

Lib. D. D. No. 3. fol. 191.

#### George Maxwell’s Lessee *against*Edward Lloyd.

EJECTMENT for a tract of land called *Harwoods*Lyon, lying in *Talbot*County, and containing 400 acres.

At the trial of the cause, the plaintiff, in order to make out his title to the lands in question, offered to give in evidence to the Jury a copy, under seal of the land-office, of a patent for the lands in question from the Lord Proprietary to one *Thomas*Harwood, dated the 12th of *February,*1663. Whereupon the defendant opposed the said copy’s being given in evidence, because the original patent, of which the paper offered was a copy, was surrendered and made *void;*and to prove it, shewed in evidence to the Court, the following entry in the margin of the record of the said patent: “ This patent, delivered into the land- *“*office, and made void, *vide*Lib. H. H. fol. 167. Anotc ther issued in the name of *Philip Stevenson*upon resur- “ vey, with addition of 200 acres more in one entire sur- “ vey.” And the defendant insisted, that it was the usage and custom of the Province, at the time when such surrender was made, to surrender, abrogate and make void grants for lands in the same manner which the entry in the margin of the record aforesaid purporteth;(a) and shewed to the Court forty-seven marginal entries in the record of so many patents between the years 1658 and 1671, of the same purport with that in the margin of the record of the patent in question.

The Court were of opinion, that the said original patent was annulled and made void, and would not allow the plaintiff to give the said copy of the patent in evidence to *213the Jury. To which opinion the plaintiff excepted, and appealed to the Court of Appeals.

At *October*Term, 1766, the case was argued in the Court of Appeals.

Johnson, for appellant.

In this case, there are four points judged material to be raised on the part of the appellant:

1st. It was wrong in the Court below to stop the plaintiff at that stage of the cause from shewing the patent in evidence ; because, though regularly vacated in Chancery, yet by the stat. of 3 and 4 *Echo.*VI. ch. 4. and the supplement, 13 Eliz. ch. 6. the plaintiff had a right to read the patent in evidence, as he might have derived a title *mesne*the time of the grant and the surrender. 5 *Co.*53. a. 52. b.

2. The marginal entry ought not to have been read, because it was not a full judgment, but only minutes of one, and therefore not evidence of the surrender of the grant. *Vin.*tit. “ Evidence,” 122.

3. There is a defect in the entry, because it does not appear before what jurisdiction the surrender was made, Or when the grant was made void. *Plow.*102.

4. If the marginal entry is evidence, yet it is a fact to be tried by the Jury, and the Court ought to have directed the Jury hypothetically. 2 *Roll. Rep.*117. 4 *Co.*71. *Hindi’s*case, 1 *Vent.*257.

The marginal entries can only be considered in the nature of minutes of the proceedings of the Court, which are not admissible evidence. *Holt's Rep.*347. *Carter's*case, Old *L. Evid.*287. pi. 56. 6 *Mod.*149. An order of Chancery is not evidence without shewing the bill on which it was founded. No act of any Court is to be read in evidence, unless the whole of the proceedings are produced. *Vin. Abr.*tit. “ Evidence,” 122. where the minutes of a judgment were produced,1, and a warrant for execution made upon it, the Judge was of opinion that the *214judgment ought to have been drawn up, and that the minutes were no evidence of it. *Comb.*387. That this marginal note cannot operate to vacate the grant is plain, for none but the King can cancel letters patent, and the Chancery Court was the only Court whére this patent could have been surrendered or vacated. 4 *Inst.*79. *Ilro. Abr.*tit. “ Petition,” sec. 11. *Hob.*63. Suppose a surrender to have taken place in Chancery, and the proceedings to have been produced, yet the Court of Chancery not being a Court of record, the fact ought to have been tried by the jury. *Tr. per*Pais, 156. *Teh.*226. *Vaugh.*143, 144,

*y.*Hall, for appellant.

The judgment of the Provincial Court is erroneous for several reasons, and though it should be admitted this was á regular surrender, yet the plaintiff might have made a title by mesne purchase between the date of the patent and the time of its surrender. *Hob.*63. *Martin*v. *Marshall and Key.*There are no proceedings to shew on what this marginal entry was founded, and to admit it to be conclusive as to the parties, is a doctrine pregnant with great inconvenience. It might have been offered to the Jury as circumstantial evidence, and if .the matter had been examined into, this entry might have been found fraudulent^ The keepers of the land-office books have the estates of the people of this Province in their power, and therefore their proceedings should be admitted with caution.

Hollyday, for appellee,

Takes two points into consideration, as sufficient for the determination of this case:

1. That the entry is evidence of a proper and legal surrender, and was made in a proper place.

2. That the judgment of the Provincial Court was founded on usage and practice.

(a)

**See *ante,*the case of *Digges*v. *Beale, October*Term, 1750.

In the early settlement of a country the jurisdiction of separate Courts are pftep blended in epch other, Formerly *215fe this State the Chancellor exercised his office, and kept the great seal in the land-office. In *England*it was kept in •the Exchequer. Could an enrolment in the Exchequer be refused as not being evidence? In the construction of grants the law must be taken as it was at the time of the grant made. *Co. Litt.*8. b. The precedents produced from the land-office of similar surrenders having been made, proves what was considered to be the law at the time the surrender was made. The surrender in this case was a proper and legal surrender, to prove which the land-office must be taken to be a branch of the Court of Chancery, and is like the petty bag office in England, which is a Court of record. The King’s letters patent are always enrolled in Chancery. 4 *Inst.*88. And a *scire facias*lies to repeal them. 4 *Inst,*79. 88. *Scire facias*will not lie for the forfeiture of a patent in another Court, unless an office be found in such other Court before the *scire facias*issues, except the forfeiture appears of record in the same Court whereupon to found the *scire facias.*4 *Bac. Abr.*409. 3 *Lev.*223.

There are no set form of words necessary to constitute a surrender, nor is there any formal proceedings necessary. 2 *Roll. Abr.*204. a. 205. 10 *Co.*67. b. Record of the. surrender of letters patent may be by the verb *sursumreddo.*Dyer, 176. So in pleading it may be by the words sur*sumreddo*and *restituo*only. 10 *Co.*67. 1 *Co. Alton-wood1 s*case.

The verb *restituo*may well enough be rendered *delivered into the office;*but the record here goes farther, having the words “ and made void.” So will many words by operation of law amount to a release. *Co. Litt.*264. The Court will take notice of the constitution of other Courts. 2 *Co.*16. *Lane's*case. *Roll. Abr.*524. *Cro. Car.*213. 328. 11 *Mod.*68. They will also receive information thereon by precedents, or by certificate of the Justuses. *Cro. Eliz.*503. All patents pass under the great seal, which shews the land-office to be a branch of the ■Court of Chancery, where the great seal is always, kept. *216*Stran.*158. Unless the enrolment of letters patent were considered as a record, the exemplification of it would not-be evidence. 3 and 4 *Edw.*VI. c. 4. 13 *Eliz.*c. 6. *scye fucias*grounded on a record, must be in the same Court where the record is. 2 Bulst» 10. 3 *Lev.*223. The *King*v. *Butler.*Remembrance made of the surrender, is sufficient evidence to pass it to the King. 17 *Fin.*172. 2 *Boll. Abr.*205. A record is not to be tried by a Jury, or the examination of witnesses, but by inspection of the record itself by the Court. *Co. Litt.*117. b* 260. a. A fee-simple may be surrendered to the King. *Co. Litt.*330. a. *Bro. Surrender,*pi. 51. If a man would surrender his patent, he ought to do it in the same Court out of which it issued. *E'itzh. Abr. Surrender,*p. 5. The marginal entry itself, is a complete record of the surrender, and no other proceeding or proof of it can be required. But if this were not strictly a proper and legal surrender, yet it is good by reason of the uniform constant course of the land-office, which appears by the precedents in the land record books. Usage and precedent are not to be neglected in things indifferent, or which are not *mala in sé. Jenk..*162, 163. The rule that precedents which pass *sub silen*tio, are to be considered of little or no authority is to be Understood, where there are judicial precedents, to the contrary. 1 *P. W.*223. The custom of a Court is the law of the Court. *Cro. Car.*528. The course of the Exchequer prevailed against the law. *Cro. Car.*513. The Constant practice of the Court prevailed against a statute. 1 *P. W.*223. An acquittance by the mayor only, held not to be good by all the Justices ; yet because he is the head of the corporation, and one hundred precedents were shewn of the like in the time past, it was allowed. *Bro. Corp.*87. *Finch's Law,*40. For other instances'of precedents prevailing against the law, vide *Anderson*49. *Teh.*126. *Noy,*172. *Bro. Cov.*87. 1 *Stra.*147. *Finch's Law,*40. *Garth.*284. *Fin.*Precedent, 502. The Court of King’s Bench will, upon a writ of error, take judicial notice of private customs. 11 *Mod.*68. The Court did *217right in refusing to let the patent be read in evidence, for the evidence of the surrender came from the plaintiff himself ; the exemplification of the patent, was accompanied with a circumstance which proved that it had lost its force and eifect. Cancelled deeds are void and cannot be given in evidence, unless proof of the ill practice how they came to be cancelled be oifered. *Het.*138. *Vin.*Evidence, 106. Formerly if a deed appeared to be razed or interlined in a place material, the Judges adjudged, upon their view, that the deed was void. But of later times, the Judges have left it to the Jurors to say, whether the razing were before the delivery or not. *Co. Litt. 225.*b. And the reason why the Judges have referred the fact to the Jury is, because upon their view, they could not determine whether the razure was before or after executing the *deed;*but in the case at bar, there could be no doubt whether the surrender were after the patent, and, therefore, the Judges might well determine upon their view. Vide Palmer, 402. *Latch.*226. *Comb.*337.

The Court of Appeals reversed the judgment of the Provincial Court.

Note. In a manuscript report of this case, in anote book of the late Thomas Jennings, Esquire, from which the principal part of the arguments of counsel were taken, is the following note in the hand-writing of Mr. *Jennings,*who was counsel in the cause : I was informed *“ by*one of the Judges of the Court of Appeals, that they did not de- “ termine whether the grant was vacated or not; but that it ought to have been read in evidence.” •>