Wood v. Owings. 1 C.

plains the doubt as to the person who was to be considered as covenanting that the vessel should lay off and on, for twenty-four hours, at the port of Falmouth, and tends to show who was responsible for the breach of that covenant. This, too, is in addition to covenants in the charter-party, which are plainly Groverman's, and is therefore the more to be considered as a covenant on his part. The act was to be performed by his authority, and the covenant was his covenant.

• On a consideration, then, of the whole.contract between [* 239] the parties, the court is of opinion that Groverman remained

the owner of the vessel during the voyage, and is answerable for any misconduct of the captain.

The covenant to lay off and on at the port of Falmouth, being the covenant of Groverman, the freighters are not answerable in this action for the breach of it, should the orders of Fox be understood as their orders. It is probable that the course taken by the captain was the most prudent course; but were it otherwise, the orders of Fox might excuse the owner from any action brought by the freighters for loss sustained by them in consequence of going into Falmouth, but could not entitle him in this action against the freighters.

It is, then, the opinion of this court, that on this special verdict, the law is for the defendants.

Judgment reversed, and the circuit court to enter judgment for the defendants.

8 C. 39.

GABRIEL WOOD, original Defendant, v. WILLIAM OWINGS and JOB SMITH, Assignees of WILLIAM Rовв, a bankrupt, original Plaintiff.

1 C. 239.

The act of Maryland requiring a deed of land to be acknowledged and recorded does not apply to the instrument, but to the estate designed to be conveyed, and such an instrument is an executed deed from the time of its delivery.

THIS was a writ of error to the circuit court for the fourth circuit, sitting at Baltimore. It was an action by assignees of a bankrupt, and the question raised, together with the material facts upon which it depended, are stated in the opinion of the court. The case was argued by Martin, for the plaintiff, and Harper, for the defendant.

Wood v. Owings. 1 C.

[* 250 ] *The CHIEF JUSTICE delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the fourth circuit sitting at Baltimore, in the following case.

On the 30th of May, 1800, William Robb, who was then a merchant, carrying on trade and merchandise in the State of Maryland, signed, sealed, and delivered to Gabriel Wood, an instrument of writing, purporting to convey to the said Gabriel his real and personal estate, in trust, to secure him from certain notes and acceptances made by him, on account of the said Robb, and afterwards, in trust for other creditors in the deed mentioned. This deed was aoknowledged on the 14th of June; and was then enrolled according to the laws of Maryland.

On the 12th of July, 1800, a commission of bankruptcy was sued out, founded on the execution of the deed above-mentioned, and the said William Robb being declared a bankrupt, his effects were assigned to William Owings and Job Smith, who brought this suit against Gabriel Wood, to recover the money received by him under the deed aforementioned.

Judgment was confessed by the defendant below, subject to the opinion of the court on a case stated, of which the foregoing were the material facts.

The court gave judgment in favor of the assignees, to which judgment a writ of error was sued out by the present plaintiff.

The only question made by the counsel was, whether the deed stated in the case was an act of bankruptcy.

On the 4th of April, 1800, congress passed an act to es[*351] tablish a uniform system of bankruptcy throughout the United States, which declares, among other things, that any merchant who shall, after the first day of June next succeeding the passage of the act, with intent unlawfully to delay or defraud his creditors, make, or cause to be made, any fraudulent conveyance of his lands or chattels, shall be deemed and adjudged a bankrupt.

It was admitted, in the argument, that this deed, if executed after the 1st day of June, would have been an act of bankruptcy, but that being sealed and delivered on the 30th of May, it was not within the act, which only comprehends conveyances made after the 1st of June.

For the defendants in error it was contended, that, by the laws of Maryland, a deed is not complete until it is acknowledged, and therefore this conveyance was made on the 14th of June, when it was acknowledged; and not on the 30th of May, when it was sealed and delivered.

The Maryland act alluded to was passed in 1766, and declares, "that after the 1st day of May next, no estate of inheritance or free.

Wood v. Owings. 1 C.

hold, or any declaration or limitation of use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance, by which the same shall be intended to pass or take effect, shall be acknowledged in the provincial court, or before one of the justices thereof, in the county court, or before two justices of the same county where the lands, tenements, or hereditaments, conveyed by such deed or conveyance do lie, and be also enrolled, &c., within six months after the date of such deed or conveyance."

The 5th section gives the conveyance, so acknowledged and enrolled, relation to the date thereof.

It is a well-established doctrine of the common law, that a deed becomes complete when sealed and delivered. It then becomes the act of the person who has executed it, and whatever its operation. may be, it is his deed. The very act of livery, which puts the paper into the possession of the party for whose benefit it is made, seems to require the construction that it has become a deed.

* The question now made to the court is, whether the act [*252 ] of the legislature of Maryland has annexed other requisities

to an instrument of writing conveying lands, without the performance of which not only the passing of the estate, intended to be conveyed, is arrested, but the instrument itself is prevented from becoming the deed of the person who has executed it.

Upon the most mature consideration of the subject, the opinion of the court is, that the words, used in the act of Maryland, which have been recited, consider the instrument as a deed, although inoperative till acknowledged and enrolled.

The words do not apply to the instrument, but to the estate that instrument is intended to convey.

Since, then, the bankrupt law of the United States does not affect deeds made prior to the 1st of June, 1800, and this deed was made on the 30th of May, 1800, the court is of opinion, that the rights vested by the deed, (whatever they might be,) are not devested in favor of the assignees of the bankrupt, and, therefore, that they ought not to have recovered in this case.

Judgment reversed, and judgment of non pros. to be entered.

14 H. 253.

United States v. Simms. 1 C.

UNITED STATES v. SIMMS.

1 C. 252.

The acts of congress of the 27th of February, 1801, (2 Stats. at Large, 103,) and 3d of March, 1801, (2 Stats. at Large, 115,) did not enable the United States in their own name to recover a penalty, given by the law of Virginia to the person who should sue for the same, for an offence committed in that part of the District of Columbia which was ceded by Virginia.

The fines mentioned in the second section of the last-mentioned act are such only as accrued by law, in whole or in part, to the government.

THIS was a writ of error to the circuit court for the District of Columbia. The defendant was indicted for keeping a faro bank at Alexandria, contrary to the act of assembly of Virginia, which made it an offence, punishable by a fine of $150, "to be recovered in any court of record by any person who will sue for the same." The court below decided, that the indictment in the name of the United States could not be sustained. No question was raised as to whether a writ of error would lie in a criminal case.

*

[* 256 ] The CHIEF JUSTICE delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the District of Columbia, sitting in the county of Alexandria, in the following case.

By an act of the legislature of Virginia a penalty of $150 is imposed on any person who permits certain games, enumerated in the act, to be played in a house of which he is the proprietor. The penalty, by that act, is given to any person who will sue for the

same.

After the passage of this act, congress assumed the government of the district, and declared the laws of Maryland to remain in force in that part of the district which had been ceded by Maryland; and the laws of Virginia to remain in force in that part of the district which had been ceded by Virginia.

Subsequent to the act of assumption an act passed, supplementary to the act entitled "An act concerning the District of Columbia;" the 2d section of which is in these words: (here the chief justice read the whole section, and the substance of the indictment.)

It is admitted that, under the laws of Virginia, an indictment for this penalty could not be sustained; but it is contended that the clause in the supplemental act which has been recited, makes a new

United States v. Simms. 1 C.

appropriation of the penalty, and gives a new remedy for its recovery.

It is insisted that the words "all fines, penalties, and forfeitures accruing under the laws of Maryland and Virginia," &c., necessarily include this penalty, and by giving a recovery in the name of the United States by indictment, appropriate the penalty to the public treasury. On the part of the defendant in error it is contended, that the words relied on do not change the law further than to substitute in all actions heretofore carried on in the names of the States of Maryland and Virginia respectively, the name of the United States instead of those names; and that the provisions of the act apply only to fines, penalties, and forfeitures accruing to [257] the government.

This subject will perhaps receive some elucidation from a review of the two acts of congress relative to the District of Columbia.

The 1st section of the first act declaring that the laws of the two States, respectively, should remain in force in the parts of the territory ceded by each, was, perhaps, only declaratory of a principle which would have been in full operation without such declaration; yet it manifests very clearly an intention in congress not to take up the subject of a review of the laws of the district at that time, but to leave things as they then were, only adapting the existing laws to the new situation of the people.

Every remaining section of the act to the 16th, is employed on subjects where the mere change of government required the intervention of the general legislature.

The 16th section continues still to manifest a solicitude for the preservation of the existing state of things, so far as was compatible with the change of government, by declaring that nothing contained in the act should be construed to affect rights granted by, or derived from, the acts of incorporation of Alexandria and Georgetown, or of any body politic or corporate within the said district, except so far as relates to their judicial powers.

This act had given to the circuit court, which it established, cognizance of all crimes committed in the district, and of all penalties and forfeitures accruing under the laws of the United States.

It was soon perceived that the criminal jurisdiction of the court could not be exercised in one part of the district, because, by the laws of Virginia, persons guilty of any offence, less than murder in the first degree, were only punishable in the penitentiary house, erected in the city of Richmond, which punishment the court of Columbia could not inflict.

* It was also perceived that some embarrassments would [* 258 ]