78*] *As to the aid which courts of equity will extend in carrying into effect instruments of emancipation, cited 1 Hen. & Mun. 519; 2 Ibid. 132; 1 Leigh, 465; 6 Rand. 162. no time limited in which it should be done. I that the deed was executed in the presence of And although, until that act should be per- another witness, who did not attest it by subformed freedom might not pass, still no act of scription, the Court of Appeals ruled such the grantor then could revoke the deed. This proof to be incompetent and inadmissible under view is illustrated by the case of a bargain and the statute. See 2 Harris & Johnson, 176. sale, under Stat. 27 Hen. VIII., requiring en- The case of Wicks v. Chew et al. 4 Har. & rollment before lands, etc., should pass. It has Johns. 543, a case arising under the statute of been decided, under that statute, that if the 1796, is yet more strongly illustrative of the bargainer dies, or aliens the land, or marries, rule above mentioned. By the statute just reor becomes bankrupt, after the execution of ferred to (ch. 67, Sec. 29, Kilty's Laws), deeds the deed, and before its enrollment, and then of manumission are required to be recorded within the time limited the deed is enrolled, it within six months from their date. By another overrides any and all of these intermediate acts, statute of Maryland, passed in 1785 (Kilty's and takes effect, by relation, from the time of Laws, ch. 72), it is provided, in the [*79 its execution. Shep. Touch. 224, 226; 2 Vin. third section thereof, "That in case any deed Ab. 419; 1 Bac. Ab. 688; 7 Leigh, 696, 711, hath been or hereafter shall be executed, to the 712. There can be no difference, as to the law validity of which deed recording is necessary, of relation, whether the formal act, remaining and such deed hath not been or shall not be reto be done, be enrollment or attestation; nor corded agreeably to law, without any fraudulent whether a time be or be not limited in the intention of the party claiming under the same, statute. the Chancellor, upon petition of the party to whom the said deed was executed, or of his, her, or their legal representative, or of any of them claiming the land or other thing conveyed or intended to be conveyed by such deed, and without the appearance or hearing of the defendant or defendants, shall have power to decree the recording of the said deed in the county or general court records, within such time from the date of the decree as it ought originally to have been recorded from the date of the deed"; giving to the deed, when thus admitted to record, the same effect it would have had if the irregularity thus cured had never occurred. Chew and others, claiming freedom under a deed from Darnell, against Wicks and others, heirs and devisees of Darnell, filed their petition with the Chancellor, stating that Darnell had died without putting the deed on record within the six months prescribed by law, and praying the Chancellor, upon due notice to the heirs and devisees, to decree that the deed be recorded, that thereby validity might be restored to it. The Chancellor, deeming himself so authorized by the third section of the Act of 1785, decreed that the deed be admitted to record within six months from the date of his decree. The Court of Appeals reversed this decision of the Chancellor, and the reasoning of the court conclusively shows the principle on which they place these instruments of manumission, and on which they distinguish them from transactions with a party who is sui juris. Mr. Justice Daniel, after having read the statement of the case at the commencement of this report, proceeded to deliver the opinion of the court: By the statute of Maryland, passed in 1715 (ch. 44, sec. 22), it is enacted, "That all negroes, and other slaves then imported, and their children, then born or thereafter to be born, shall be slaves for life." Upon examining the legislation of Maryland, from the period of the law of 1715, a variety of enactments will be seen, showing the policy of this State in the government of her slave population; and, as entering essentially into that policy, must be considered the several regulations under which she has permitted manumission, either by deed or by will. The enactments here referred to may be found in Kilty's Laws, Vol. I., session of 1752, ch. 1, where they are collated, by their dates, down to the Act of December 31st, 1796, under which last-mentioned statute the questions now before this court have immediately arisen. In the interpretation given to these statutes by the tribunals of the State, one characteristic will impress itself on every mind; and that is, the strictness with which the laws have been expounded in reference to the power of manumission conferred by them. It seems to have been thought that very little, or indeed nothing, was permitted by the policy of the State to construction or implication, but that rather the conditions prescribed for the exercise of the power conceded should be fulfilled almost to the letter. Of the propriety of views such as these, on the part of the State, with regard to her own internal policy, no just ground of complaint can be alleged; but of the reality of those views, a reference to a few of the adjudications of her courts will leave no doubt. By the Stat. of 1752 (ch. 1, sec. 5), manumission was allowed, by writing, under bond and seal, "evidenced by two good witnesses at least." Under this statute arose the case of Negro James v. Gaither, which was a claim to freedom, upon a writing signed and sealed, but subscribed by a single witness only. Parol proof being offered to establish the fact They declare that the statute of 1785 embraces only cases of mutual but inchoate rights, but still of rights founded on some valid consideration, such as courts can take notice of and enforce; that manumission by the laws of Maryland is a mere gratuity, and until evidenced by, all the acts or requisites the law prescribes, has no legal existence, and can have created no faculty in the contemplated object of that gratuity. The language of the Court of Appeals is as follows: "The acts of Assembly referred to (i. e., by the Chancellor in support of his decree) are not intended to give relief in cases which were before without remedy, but to give an additional remedy by enabling a party, acquiring equitable rights under a deed not operative in law for want of recording, to perfect those rights, by applying to the Chancellor to order the original instrument to be recorded, and thus to give it the effect which by law it would have had if recorded in due time, instead errors upon the record; but they are all necesof going into chancery to compel a conveyance, sarily subordinate to a decision upon the validor enforce a specific performance. They are ity of the *instrument of manumission as [*81 intended to give an accumulative remedy to affected by the failure to record it within six persons able to contract, and who by deed ac- months from its date. This omission is admitquire rights which equity will protect, with the ted in the petition for freedom, and is made out power to prosecute those rights. But by the by the proofs upon which the instruction prayed laws of this State, a negro, so long as he is a by the defendant in the court below was asked 80*] slave, can have *no rights adverse to those and refused, and it remains to be considered of his master; he can neither sue nor be sued, how far such omission operated to destroy all nor can be make any contract or acquire any foundation of the right sought to be asserted in rights under a deed which a court of law or this case. This inquiry, as a question of Maryequity can enforce. And as it is the recording land law, we think is without difficulty. The of a deed of manumission within the time pre- decisions already quoted are clear and explicit. scribed by law, which entitles him to his free- They treat the right asserted and the instrument dom, he continues a slave and can acquire no alleged in evidence thereof as having no legal rights under such an instrument until it is so existence, as nullities to all intents and purposes, recorded, and consequently cannot go either into and therefore as nothing of which common law a court of law or equity for relief of any kind." or equity can take cognizance, until that right Again, the court say in this case, that "A and the pretended evidence of it can be brought master may execute and acknowledge a deed of forward, attended with every mark and atmanumission, and afterwards destroy it or keep tribute of being, which the statute has called it, and refuse to have it recorded, and the slave for, and one of these, as clearly defined as any remains a slave without redress." Another other, is admission to record. This, indeed, is striking instance of the rule of interpretation of treated as the great, the capital test of existence, their own statutes, adopted by the courts of for it is this which places the transaction definMaryland, is found in the case of Negro Anna itively beyond the control of the master, and Maria Wright v. Lloyd N. Rogers, reported in proclaims, beyond the power of denial, both 9 Gill & Johns. 181. In this case, Tilghman, the intent and its consummation. And why the owner of the female slave, executed and should this not be treated as a question of delivered to her, in 1832, a deed of manumis- Maryland law? The statutes of Maryland in sion, which was duly acknowledged but not re- being at the cession of the District of Columbia corded. Subsequently, Tilghman sold and were adopted as the laws of the County of conveyed the same slave by bill of sale, duly Washington, to be there enforced until altered acknowledged and recorded, to a purchaser by authority of Congress, and the rights of who had notice at the time of the previous deed person and of property vested or existing under of manumission. This purchaser afterwards those laws, and all interpretations of those laws sold the slave to Rogers, to whom, in 1833, he by the supreme tribunal of Maryland, became executed and delivered a bill of sale, which was in like manner the rules of right within the acknowledged and recorded according to law. same county. This case, too, is one of a right The Legislature, at their session, December, sought to be maintained under a Maryland 1834, passed a special law, authorizing the deed statute, a right which seeks to lay its foundation of manumission to be recorded, providing fur- in the terms of that statute, and nowhere else. ther that the same when recorded should be as But whilst it is conceded as a general proposivalid and effectual for every purpose as if it tion that the laws of Maryland, at the period of had been duly recorded according to law. the cession of the District of Columbia, are After the deed had been recorded pursuant to laws of the County of Washington until changed this law, the negro filed her petition for free- by the authority of Congress, it has been urged dom; the judgment of the County Court was that, in instances in which the Maryland statagainst her title, and that judgment was af-jutes have received no settled interpretation by firmed by the Court of Appeals. the Maryland courts anterior to the cession of By the 29th section of the statute of 1796, this district, the federal courts are free to inter(Kilty's Laws, ch. 67), the power of manumis-pret the provisions of those statutes as they sion by writing under seal was re-enacted from would be to pass upon any other subject of previous statutes, enumerated and repealed in original cognizance, and would not be bound by the 31st section of the Act of 1796. In the 29th decisions of the State courts made posterior to section, many of the conditions contained in the the cession. This position is not denied; it has prior laws are prescribed, and amongst these are indeed been sanctioned by this court in the the requisitions, that the slave to be emancipated cases of Fenwick v. Chapman, 9 Peters, 461, shall be sound in mind and body, and not over and Wallingsford v. Allen. 10 Peters, 583. 45 years of age; that the deed of manumission But admitting this position fully, still we must shall not be in prejudice of creditors; that it also admit that the courts of the United States shall be acknowledged before a magistrate, and would feel great respect for the decisions of the entered amongst the records of the County State courts upon questions essentially connectCourt where the person or persons granting ed with the general internal policy of the State, such freedom shall reside, within six months nay, would yield to those opinions upon matfrom the date of such instrument of writing. ters of doubtful construction, or wherever well Upon the construction of this section of the Act ascertained and paramount obligations did not of 1796 arose the questions presented to the forbid such an acquiescence. But the statute court below, and now brought here for adjudica- of 1796 was anterior to the cession of the Distion. These questions are various, as appears trict of Columbia; and although the [*82 by the bill of exceptions sealed by the judges of cases of Wicks v. Chew et al. 4 Harr. & Johns., the Circuit Court, and yument of and of Anna Maria Wright v. Rogers, 9 Gill Where a case is removed from Alexandria County to Washington County, in the District of Columbia, whatever defenses might have been made in Alexandria County, either as to the form of the action or upon any other ground, or whatever would have been a bar to the action, may all be relied on in the new forum. transferred. But the mode of proceeding by which the rights of the parties are determined, must be regulated by the law of the court to which the suit is A reference to arbitrators, therefore, which is sanctioned by the laws of Maryland governing Washington County, is not to be overthrown because it is not sanctioned by the laws of Virginia, governing Alexandria County. The validity of the reference, and of the proceedings and judgment upon it, must be tested by the laws of Maryland. Although the charter of a company does not, in terms, give the power to refer, yet a power to sue being one of the modes of prosecuting a suit to and be sued includes a power of reference, that judgment. & Johns., were posterior to that event, still In reference to the agreement signed by counsel and annexed to the record in this case, and by which all the powers that a court of equity could properly exert in aid of instruments defectively executed were conceded to the Circuit Court as if sitting as a court of equity, we remark that the grounds presented by that agreement are entirely covered by the opinion above expressed of the absolute nullity of the deed in question, it being no more with in the powers of a court of equity than it is within those of a court of law, to set up and establish that which is illegal or wholly void. Order. This case came on to be heard on the transcript of the record of the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo. So, also, a power to agree with a proprietor for the purchase or use of land includes a power to tree to pay a specified sum or such sum as arbi trators may fix upon. It is immaterial whether the power of reference is lodged in the president and directors or in the stockholders assembled in general meeting; for the entire corporation is represented in the court by its counsel, whose acts, in conducting the suit, are presumed to be authorized by the party. Where the order of evidence provides for the appointment of an umpire, it is no error if he is appointed before the referees had heard the evidence and discovered that they could not agree. Where the agreement for reference contained a clause, providing that upon payment of damages of the owner of the land he should convey it to the other party, it was proper for the umpire to omit all notice of this. It was not put in issue by the pleadings, nor referred to the arbitrators. HIS case was brought up by writ of error from the Circuit Court of the THIS United States for the District of Columbia, in and for the County of Washington. It originated in the County of Alexandria, and was removed to the County of Washington under an act of Congress providing for such removals. The circumstances of the case are so fully set forth in the opinion of the court that it is unnecessary to do more than refer to it for a statement of the facts. The cause was argued at December Term, 1845, by Messrs. Bledsoe and Coxe for the plaintiff in error, and by Messrs. William T. Swann and Jones for the defendant in error. At the present term the court gave its opinion. Mr. Bledsoe, for the plaintiff in error, contended: 1. That there was no legal or valid reference. 2. That there was no legal or valid award. 3. That there was no legal or valid judgment. 1. The president and directors had no power under their charter to submit a case to arbitration. The rule is well settled that they have no power except under the charter. 5 Conn. Rep. 568; 2 Cranch, 158; Angell & Ames on Corp. 200, 201, 229, 242; *7 Cranch, 299; 14[*84 Johns. 118; 12 Johns. 241; 15 Wend. 256; 7 83*] *THE ALEXANDRIA CANAL COM- Cowen, 462; 1 Cowen, 513; 12 Wheat. 58. PANY, Plaintiff in Error, V. FRANCIS SWANN, Defendant. Arbitration—in action of trespass no question of justification before arbitrators where only general issue pleaded-corporation as a party-submission-assent of attorney—umpire selected before disagreement. The charter (Davis's Laws, 558) says, that where land is to be taken, the company may agree as to the price. But if no agreement can be made, they are to apply to justices of the peace, who are to call a jury. But in that case the whole twelve must agree. The thirteenth section of the act thus pointing NOTE. AS to arbitrament and award, see notes to 6 L. ed. U. S. 516; 43 L. ed. U. S. 118. out the mode of condemning land, none other was justifiable. The seventeenth section gives the company the right to enter upon land, and therefore they cannot be guilty of a trespass. One partner cannot bind another by agreeing to arbitrate. Watson on Part. 445; 3 Bing. 101; 11 Com. Law. Rep. 52; Story on Part. 169; 1 Peters, 222, 228. The attorney here has undertaken to make the president and directors do things which are not justified by law. In England, where property is taken for public use, the party has no remedy; and in this case the remedy given by the charter is exclusive. 11 Mass. 364, 365, 368; 20 Johns. 735; 4 Wend. 347, 367, 370; 4 N. H. Rep. 547; 2 Johns. 283; 7 Johns. Ch. Rep. 315; I N. H. Rep. 339. Mr. Bledsoe then examined the terms and mode of arbitration. Mr. William T. Swann, for the defendant in error, made the following points: 1. It will be unnecessary to consider any part of the record prior to the submission of the case to arbitration; as the submission in such a case, under a rule of the court, operates as a waiver of all exceptions (if any could be conceived), or as a release of all errors anterior to the rule. case was by the company itself, and not by the president and directors only. The attorney in court represented the whole company. Mr. Jones, on the same side: If they object to the award they should have moved, in the court below, to set it aside. Otherwise it is presumed to be right. It is too late to urge the objections in an appellate court, because, as the court below never passed a judgment upon the point, it would make this a court of original jurisdiction. 2 Schoale & Lefroy, 712. When the cause was removed, it was to be tried by lex fori, of which arbitration is a part. It is denied that the president and directors had any power to submit the case. But how does it appear that the president and directors did it, and not the company? A corporation can only appear by its corporate name. This suit was so brought and they appeared to it. So the power of the attorney is denied. But will the court presume that he acted without authority? A corporation is liable for a tort. 16 East, 5; Angell & Ames on Corp. 328, 329; 8 Peters, 117. Mr. Coxe, for plaintiff in error, in reply and conclusion, examined the history of the law of arbitration, and the statutes of Virginia and Maryland; and then contended that an action of trespass quare clausum fregit would not lie against a corporation. He then examined the authorities cited by Mr. Jones. If the corporation kept within their charter they were not suable, of course. If they went beyond it, and 2. No exceptions having been taken in the court below to the award, the grounds of the appeal are unknown; nor can any, by the counsel in this case, be conceived. But if any objections could be presented, it is now too late; they should have been presented either by mo-appointed agents to do things not justified by tion or exception in the court below. 3. In this case the award is supported by a recital of various matters of procedure under the arbitration in the award itself, by the certificate of two of the arbitrators, and by affidavits proving such matters of procedure in the case. This is a support far beyond what the law requires. A simple award of a sum of money under the submission, without any recital of such facts in the award, and without any proof of them, is sufficient; any omission or irregularity in regard to such extrinsic matters being brought forward by motion in the court below to set aside the award. Mr. Swann then examined the record, and contended that the arbitration was according to law. The other matters of defense, he said, cannot be alleged here. There is no special 85*] plea in *Washington County, and we do not admit the facts upon which the argument rests. The charter does not give the remedy spoken of to the party aggrieved, because he cannot originate the process of summoning a jury, etc. 4 Gill & Johns. 147; 4 Wend. 667, 672. If the company have power to enter land without condemnation, it ought to have been specially pleaded. A submission of a cause to arbitration disembarrasses it of legal question. 1 Washington Rep. 320; 10 Mass. Rep. 215; 8 Serg. & Rawle, 3; 4 Hen. & Mun. 216; 5 Binney, 177. The statute of Maryland, passed in 1778 (ch. 21, secs. 8, 9), points out the mode of proceeding by arbitration. It is a common law process, too. The power to refer is a necessary incident to the power to be sued. If the company are sued they can defend themselves in any manner known to the laws. The submission in this law, the agents are responsible. A suit only lies against the employer when the agent is acting within the scope of his authority. This suit was brought in Alexandria, where the corporation appeared by attorney and filed pleas. When it was removed to Washington an amended declaration was filed, but it was not a *substitute for the old one, because the [*86 old one remained in court, and so did the former pleas. Mr. Coxe then contended that the reference was improper and illegal, and cited Kyd on Corp. 45, and commented on the charter of the company. Mr. Chief Justice Taney delivered the opinion of the court: This case is brought here by writ of error from the Circuit Court for Washington County, in the District of Columbia. The suit was originally brought in Alexandria County by the defendant in error, against the plaintiff'; and upon the motion of the former was removed to Washington County under the provisions of the Act of June 24, 1812, sec. 3. The points raised in the argument make it proper to state the pleadings more fully than is usually neces thority of the Act of Congress, for the purpose | established in the Circuit Court for the county of making the canal; and that it is ready to in which the suit was originally instituted. satisfy any damages to which the plaintiff is Undoubtedly, whatever rights the canal comentitled, when they shall be ascertained in the pany had in Alexandria County, and whatever mode pointed out in the act of incorporation. defenses it might there have made, either as After these pleas were put in, and before any to the form of the action or upon any other replication was filed or issue joined, the cause ground, it might still rely upon them in the was removed to the Circuit Court for the new forum; and whatever would have been a County of Washington, by an order passed on bar to the action in Alexandria County would the 12th of November, 1841, upon the motion be equally a bar in Washington. The question of the defendant in error. The case was con- here, however, is not upon the rights of the tinued in that court without any alteration in respective parties, but upon the mode of prothe pleadings until November Term, 1842, ceeding by which they were determined; and when an amended declaration was filed. This this must evidently be regulated by the law of declaration consisted of a single count, and the court to which the suit was transferred. differed from the original one only in under- For after the removal took place, the action, taking to set out the abuttals of the close in according to the act of Congress, was pending which the trespass was alleged to have been in Washington County, to be there prosecuted committed. The defendant in the Circuit and tried, and the judgment of that court to Court pleaded not guilty to this declaration, be carried into execution. And as the act upon which issue was joined and a jury sworn; neither directs nor authorizes any change in its but before a verdict was rendered a juror was practice or proceedings in removed cases, it withdrawn by consent, and upon the motion follows that they must be prosecuted and tried of the parties by their attorneys the matter in like other actions in that court, and could not variance between them was by a rule of court lawfully be prosecuted and tried in any other referred to four arbitrators named in the order manner. In impaneling a jury, for example, of reference. The reference was made upon for the trial of the facts, it could not put aside certain terms specified in a written agreement the jurors required by law to attend that court, filed in the case, setting forth the manner in and *direct a panel of twelve to be sum- [*88 which the arbitrators were to be selected and moned for the particular case, pursuant to the the damages calculated, with power to the ref-law of Virginia. Nor could it deny to either erees to choose an umpire, if they or a major-party the right to strike off four names from ity of them could not agree. the list of twenty, according to the law of 87*1 *The arbitrators, before they entered Washington County, although the rule is otherupon an examination of the case, appointed an umpire, who afterwards made his award, and thereby awarded that the defendant (in the District Court) should pay to the plaintiff the sum of six thousand nine hundred and sixtyeight dollars and seventy-five cents, in full satisfaction of all the matters of damage and value submitted to his umpirage. This award was filed September 21, 1843, and notice of it regularly served on the plaintiff in error; and thereupon a judgment was entered for the amount awarded on the 17th of January, 1844. It is upon this judgment that the present writ of error is brought. It appears from the record that no objection was taken to the award in the Circuit Court, nor any affidavits filed to impeach it. Several depositions were filed by the defendant in error, which are not material to this decision, except in one particular, which will be hereafter noticed, on account of an objection to the award founded upon it. · wise in the County of Alexandria. And upon the same principles the selection of arbitrators, the proceedings before them, and the legal effect of their award, could be no more influenced by the law upon that subject, on the other side of the Potomac, than the summoning, striking and impaneling of a jury. The validity of the reference, therefore, and of the proceedings and judgment upon it, must depend upon the law of Maryland and not upon the law of Virginia. And if the judgment given by the Circuit Court was authorized by the former, it cannot be impeached upon the ground that such proceedings would not have been lawful in Alexandria County. Trying the case upon these principles, it is very clear that as no objection was taken to the award in the Circuit Court, the judgment upon it was correct and must be affirmed in this court, unless some substantial objection appears on the face of the proceedings or in the award itself. The reference to arbitrators and the proceed- It has been urged, however, that it is apings thereon, and the judgment given by the parent, on the face of the proceedings, that the court below, were all under and intended to be arbitrators committed a mistake in the law; pursuant to the Acts of Assembly of Maryland that the record shows the acts complained of of 1788 (ch. 21, sec. 9, and 1785, ch. 30, sec. to have been done in execution of the power 11). It is admitted that these proceedings conferred on the company to construct a canal; were not authorized by the laws in force in and that under the act of Congress they had a Alexandria County; and it is objected by the right to enter upon any land they deemed necplaintiff in error that, inasmuch as no judg-essary for that purpose, leaving the damages to ment could have been lawfully rendered upon these proceedings in Alexandria County, no judgment ought to have been rendered upon them in Washington; that the removal of a case under the laws of Congress is a mere change of venire; and that the rights of the parties are still to be tried according to the laws and modes of proceeding recognized and be afterwards ascertained in the mode pointed out by the law; and that, consequently, an action of trespass will not lie. But it is very clear that this question of law was not before the referees or the court; nor was it in any way involved in the decision of either. For if the plaintiff in error could have justified the entry upon the ground suggested, the justi |