V. OWINGS the treaty. Whether it is an obstacle to the plainNORWOOD's tiff's recovery is a question exclusively for the decis sion of the courts of Maryland. LESSEE. Harper, on the next day, having suggested to the court that he understood the opinion to be that this court had no jurisdiction to revise the decisions of the state courts, in cases where the construction of a treaty was drawn in question incidentally, and where the party himself did not claim title under a treaty, was about to make some further observations on those points, when MARSHALL, Ch. J. observed, that Mr. Harper had misunderstood the opinion of the court, in that respect. It was not that this court had not jurisdiction if the treaty were drawn in question incidentally. The reason for inserting that clause in the constitution was, that all persons who have real claims under a treaty should have their causes decided by the national tribunals. It was to avoid the apprehension as well as the danger of state prejudices. The words of the constitution are, "cases arising under treaties." Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right gros out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is to be protected. But if the person's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by the treaty. If Scarth or his heirs had claimed, it would have been a case arising under a treaty. But neither the title of Scarth, nor of any person claiming under him, can be affect ed by the decision of this cause. Harper. The opinion is more limited than I apprehended. But in this case the land is claimed as confiscated, and the question is, whether the plain OWINGS V.. LESSEE. tiff's title, by confiscation, is good under the treaty. The defendant has a good title against every body Noxwood'S who cannot show a better. He has a right to protect himself, by showing that the plaintiff has no title. In order to do this, he insists that the title of the plaintiff is inconsistent with the treaty. He has a right to set up the treaty in opposition to the confiscating act of Maryland. Martin, on the same side. The reason of the clause in the constitution was, that there might be uniformity of decision upon all questions arising upon the construction of the constitution, and laws and treaties of the United States. In every case, the question concerning a treaty must come on incidentally. The intention was, that wherever a state court should decide against a claim, set up under the construction of a treaty, such decision should be examinable in this court. This was the cotemporaneous exposition given to the constitution by the first congress, convened under that constitution, and which was composed of a great number of the leading members of the convention by which the constitution was framed; and who must have well known what was the intention of that body in adopting that article. The right of the plaintiff to recover in this suit, and the right of the defendant to retain the possession as against this plaintiff, depend upon the treaty. The property having been once granted, the state could not again acquire the title but by escheat or confiscation. The court below decided, that it was not a case of escheat, because the heirs of Scarth were living. Whether the property was confiscated within the meaning of the treaty, is therefore the only remaining question, upon the merits of the case. That question, however, is not before this court, until this court shall decide whether they are OWINGS V. LESSEE. competent to consider it in this case. We con NORWOOD S sider the judiciary act as a correct exposition of the constitution in this respect, and that this is clearly a case within the provisions of the 25th section of that act. This argument produced no alteration in the opinion of the court; and the Writ of error was dismissed.* As this cause occupied a considerable portion of the time and talents of the courts and bar of Maryland, and as it decided several important points in that state, it i-deemed not improper to give a short abstract of the case as it appears in the bills of exception. Upon the trial, the defendant Owings took 10 bills of exception. The 1st bill of exceptions stated that the plaintiff offered in evidence a patent from the lord proprietor of Maryland to Thomas Brown, lated November 10, 1695, for a tract of land called Brown's Adventure, containing 1,000 acres. Also a patent from the state of Maryland to Edward Norwood, the original plaintiff in this action, dated 25th June, 1800, for a tract of land called "The Discovery," containing 5:20 1-2 acres, included within the lines of Brown's Adventure. The defendant offered evidence that the heirs of Brown, the origina! patentee, were still living in Maryland. The defendant offered in evidence a deed from Brown to Gadsby, dated May 2, 1700, on which was an endorsement dated May 4, 1699, purporting to be a receipt for the alienation fine due to the lord proprietor. And the following "Memorandum : That the date of this was originally according to the date of the above receipt, but aliened by consent of the provincial court and parties, to bring it within the act of assembly. "W. TAYLARD." Whereupon the defendant prayed the court to instruct the jury that if they were of opinion that the endorsements were made at the request of Gadsby the grantee, and with his privity and consent, and that the deed with the endorsements was recorded for his benefit, and with his assent, then the endorsements are competent to be read in evidence to support the facts therein contained against the title of Gadsby to the lands in the deed mentioned. But the court was of opinion that the memorandum,of Taylard" was not evidence, being an act done by the said W. Taylard without authority, and that the said deed was valid and operative in law to transfer the said land to the said Gadsby." The 2d bill of exceptions states that, in addition to the above evidence, the plaintiff offered in evidence a deed from Gadsby to Barker, 'for 130 acres, part of Brown's Adventure, dated 10th of July, 1701. Also a deed from Gadsby to Aaron Rawlins of the residue of Brown's Adventure, dated 2d of October 1703. Also a deed of mortgage in fee from Rawlins to Jonathan Scarth, dated the 13th of May, 1706. tle also offered evidence that Barker and Searth died before 1795, without heirs. Also an escheat warrant to the plaintiff, dated 28th of October, 1795, and a certificate of resurvey, and a patent thereupon to the plain MOSS v. RIDDLE & CO. Moss V. RIDDLE. ERROR to the circuit court for the district of Columbia, in an action of debt upon the joint bond of Welsh and Moss for the payment of money. A bond cannot be delive red to one of the obligees as au escrow. Fraud con. sists in inten Welsh, who was the principal debtor, not being found in, and not being an inhabitant of, the district tion, and that of Columbia, the suit abated as to him. intention is a fact which must be averred in a plea of The defendant Moss, in his first plea, after pro- fraud. tiff, dated 25th of June, 1800 The plaintiff also offered evidence, that the lands are truly located on the plats as directed by the plaintiff. The defendant offered evidence that the heirs of Brown were still living in Maryland; that Scarth's heirs are still living in England, and that he and his heirs were always British subjects, and always resided in England The court had directed the jury that if the heirs of Searth werc living in England at the passage of the acts of October session, 1780, c. 45 c. 49. and c. 51, the warrant of escheat which issued to the plaintiff, issued without authority of law, but that a patent which issued on such a warrant came within the provision of the act of November session, 1781, c. 208 8 whereupon the defendant offered in evidence the valuation of the land so escheated by the plaintiff, and the sum by him paid into the treasury for the said lands on the 24th of December, 1799, and that the sun so paid, was only two thirds of the appraised value of the said lands so escheated, and prayed the direction of the court, that if the jury should be of opinion that the plaintiff had paid only two thirds of the appraised value, he could not entitle himself to the benefit of the warranty contained in the act of November, 1781, c. 2. 8. 8 "But the court were of opinion, that if the jury should find the facts as stated, the said patent was good, valid and operative in law to pass the said land to the said Edward Norwood and his heirs, and so directed the jury notwithstanding the said Edward Norwood had not paid more than two thirds of the appraised value of the said land. The court considering the case of the said Edward Norwood as coming fully within the provision of the 8th sect of the act of November session, 1781, c. 20. and that the two thirds of the value of the said land was as much as the said Edward Norwood was liable to pay; to which last opinion, and to so much of the former opinion as declares the said patent to come within the provisions of the act of November, 1781, c. 20. § 8 the defendant excepted." The 3d bill of excentions, in addition to the foregoing evidence, stated, that the defendant offered evidence of a judgment of condemnation of these lands upon an attachment from the provincial court in 1732, for a debt of 3977-98. 6d. sterling, due from Scarth to one Littleton Waters. The plaintiff offered in evidence duplicate writs of attachment to other counties issued by Waters for the same debt, upon which sundry sums of money were attached and condemned in the hands of garnishees, amounting altogether to 2261, 83. d. sterling. Moss testing that he did not deliver to any person, unRIDDLE Conditionally, as his act and deed, the writing in the declaration mentioned, averfed that he signed and To show that the lands attached by Waters was the 386 acres located on the plats as being in the possession of the Baltimore company, the plaintiff read in evidence the lord proprietor's old rent-roll, stating 870 acres to be in possession of Rawlins, and 130 in the possession of John Barker. And the last rent-roll stating 419 acres to be in possession of Searth, and 385 in the possession of Charles Carroll & Co.; and the lord proprietor's debt-book for the year 1754, (being the oldest book of that kind remaining,) which charges the Baltimore company with the quit-rents of 386 acres and no more, and Scarth with 419; which charges were continued annually until the revolution And the defendant thereupon prayed the opinion of the court, that by virtue of the said judgment and attachment and condemnation by him given in evidence, a legal estate was vested in the said Littleton Waters in the said tract of land called Brown's Adventure. But the court were of opinion, and so directed the jury, that the said Littleton Waters did not acquire a legal estate in the said land by virtue of the said judgment, attachment and condemnation. The 4th bill of exceptions stated the same facts, and further that the defendant read the act of assembly passed at November session, 1797, c. 119. and prayed the opinion of the court, that by virtue of that act the right of the state was so far vested in the persons possessing the land called Brown's Adventure under the condemnation aforesaid, that the plaintiff could not in virtue of his said warrant, certificate and patent have any right or title to the said land; or, if any, then no more than the proportion or compensation to which a discoverer of confiscated property is entitled. But the court were of opinion that the right of the plaintiff to Brown's Adventure attached upon his obtaining the warrant of escheat, and that his right was saved and protected by the proviso in the 2d section of the said act of November, 1797, c. 119. And that the grant transferred to him the interest the state had in the land called "The Discovery" from the time of his obtention of his said warrant of escheat. The 5th bill of exceptions states the same facts, whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if the warrant of escheat which issued in this case, issued without authority of law. then the warranty contained in the act of November, 1781, c. 20. § 8 did not operate to give title to the plaintiff, and that there can be no relation to a warrant which issues without authority of law, or to a certificate made in pursuance of such war rant. But the court were of opinion, that the act of 1781, c. 20. § 8. did secure to the plaintiff the said land so by him escheated on his paying two thirds of the value of the said land, being what the plaintiff was liable to pay for the same as confiscated British property; and that the grant obtained by the plaintiff did operate to pass the land to him by relation from the date of the said warrant. The 6th bill of exceptions also stated the same facts, and that the defendant thereupon prayed the court to direct the jury that if the said tract of land called Brown's Adventure belonged to a British subject at the time of passing the act for confiscating British property in the state of Maryland, and if no actual possession had been taken thereof by the said state or its agents, and no sale or disposition, made |