480 ; Jenkins v. Walter, 8 Gill & J.
218 ; Hill on Trustees, 376 ; because
he would otherwise be able to play
fast and loose with his cestuis que trust,
and throw the hazards of his own
business on them, by designating the
fund on which the loss has fallen, as
theirs, whether it was or was not so
in reality.
470 POWER, WHERE PROPERTY BEYOND JURISDICTION.
POWER, WHERE PROPERTY BEYOND JURISDICTION.
[*767] *PENN v. LORD BALTIMORE.
MAY 15, 1750.
reported 1 "ves. 444.
Power of Court of Equity over Property out of its Jurisdiction,
By A decree in Personam.] — Specific performance decreed, of articles
executed in England, concerning boundaries of two provinces in America.
The bill was founded on articles entered into between the plaintiffs and de-
fendant, 10th May, 1732, which articles recited several matters as introduc-
tory to the stipulation between the parties, and particularly letters patent,
granted 20th June, 8 Car. 1, by which the distinct property and government
of Maryland, under certain restrictions, is granted to the defendant's ancestor,
his heirs and assigns ; farther, reciting charters or letters patent in 1681, by
which the province of Pennsylvania is granted to Mr. William Penn and his
heirs ; and stating a title to the plaintiffs, derived from James, Duke of York,
to the three lower counties, by two feoffments, both bearing date 24th of
August, 1682. The articles recite, that several controversies had been be-
tween the parties, concerning the boundaries and limits of these two provinces
and three lower counties ; and make a particular provision for settling them,
by drawing part of a circle about the town of Newcastle ; and a line to ascer-
tain the boundaries between Maryland and the three lower counties ; and a
provision in what manner that circle and line should run and be drawn ; and
that commissioners should do it in a certain limited time, the final time for
which was on or before the 25th of December, 1733. There was, beside, a
r*^pQ-i provision in the articles, that if there should be a want of a *quorum
of commissioners meeting at any time, the party by default of whose
commissioners the articles could not be carried into execution, should forfeit
the penalty of £5000 to the other party ; and a provision for making convey-
ances of the several parts from one to the other in these boundaries, and for
enjoyment of the tenants and landholders.
The bill was for a specific performance and execution of the articles ; what
else was in the cause, came by way of argument to support, or objection to
impeach, this relief prayed.
When the cause came on before, it was ordered to stand over, that the at-
torney-general should be made a party j 1 who now left it to the Court to make
a decree, so as not to prejudice the right of the crown.
The first objection for defendant was, that this Court has not jurisdiction
1 See Ridg. Ca. t. Hardw. 444.
PENN V. LORD BALTIMORE. 477
nor ought to take cognizance of it, for that the jurisdiction is in the king in
council.
Second objection, that, if there is not an absolute defect of jurisdiction
in this Court, yet, being a proprietary government and a feudary seigniory
held of the crown, who has the sovereign dominion, the parties have no power
to vary or settle the boundaries by their own acts; for such agreement to set-
tle boundaries, and to convey in consequence, amounts to an alienation, which
these lords proprietors cannot do. But supposing they may alien entirely,
they cannot alien a parcel, as that is dismembering, for which there is a rule
in the feudal books concerning feuda indivisibilia.
Thirdly, this agreement ought not to be carried into execution by this Court,
as it affects the estates, rights, and privileges of the planters, tenants, and in-
habitants within the district, and the tenure and law by which they live, with-
out their consent.
Fourthly, supposing all this answered, yet this agreement is not proper to
be established, from the general nature and circumstances. First, as it is
merely voluntary, and the Court never decrees specifically without a p-â„¢-.
Consideration ; secondly, as the time for performance is lapsed; L
thirdly, that these articles are in nature of submission to arbitration, which
cannot be supplied by interposition and act of this Court ; fourthly, that de-
fendant was imposed on or surprised in making tbis agreement; fifthly, that,
if there was no imposition or fraud, defendant grossly mistook his original
right, and, under that mistake and ignorance, the articles were founded and
framed ; sixthly, the agreement in some material parts is so uncertain, that it
cannot be decreed with certainty, according to the intent of the parties, for
that no centre is fixed, without which it is impossible to make a circle ; nor is
it sufficiently described, whether it should be a circle with a radius of twelve
miles, or only a periphery of twelve miles; seventhly, there is a covenant for
mutual conveyances, whereas the plaintiffs have no estates in the lower coun-
ties, so as to make an effectual conveyance to defendant ; and an agreement
must be decreed entirely, or not at all. On the plaintiff's own showing the
legal estate and property is in the Crown ; so that, at most, they have but an
equitable right, in which the Crown is trustee; and then, this Court cannot
decree a conveyance. In Reeve v. Attorney- General, 1741, lands were de-
vised to a wife, and after her death, to be sold, and the money to be divided
among the plaintiffs. The testator died without heirs, so that the legal inter-
est in the estate descended to the Crown, but with a trust to be sold. On a
bill to have the will established, and to hold against the Crown, or the lands
sold, his Lordship dismissed the bill, and said, where the Crown was trustee,
the Court has no jurisdiction to decree a conveyance, but they must go to a
petition of right ; eighthly, this Court cannot make an effectual decree in the
cause, nor enforce the execution of their own judgment.
Lord Chancellor Hardwicke.— I directed this cause to stand over for
judgment, not so much from any doubt of what was the justice of the case, as
478 POWER WHERE PROPERTY BEYOND JURISDICTION.
by reason of the nature of it, the great consequence and importance,
[*770] an( j jj^g great i a k or an0 > ability of the argument on both sides, it
beino- for the determination of the right and boundaries of two great provin-
cial o-overnments and three counties ; of a nature worthy the judicature of
a Roman senate, rather than of a single judge; and my consolation is, that
if I should err in my judgment, there is a judicature, equal in dignity to a
Roman senate, that will correct it.
It is unnecessary to state the case on all the particular circumstances of
evidence, which will fall in more naturally, and very intelligibly, under the
particular points arising in the cause.
The relief prayed must be admitted to be the common and ordinary equity
dispensed by this Court, the specific performance of agreements being one of
the o-reat heads of this Court, and the most useful one, and better than da-
mages at law, so far as relates to the thing in specie, and more useful in a case
of this nature than in most others, because no damages in an action of cove-
nant could be at all adequate to what is intended by the parties, and to the
utility to arise from this agreement, viz., the settling and fixing these bounda-
ries in peace, to prevent the disorder and mischief which, in remote countries
distant from the seat of government, are most likely to happen, and most mis-
chievous. Therefore, the remedy prayed by a specific performance is more
necessary here than in other cases, provided it is proper in other respects ;
and the relief sought must prevail, unless sufficient objections are shown by
defendant, who has made many and various for that purpose.
First, the point of jurisdiction ought in order to be considered, and, though
it comes late, I am not unwilling to consider it. To be sure, a plea to the
jurisdiction must be offered in the first instance, and put in primo die;
and answering submits to the jurisdiction, much more when there is a pro-
ceeding to hearing on the merits, which would be conclusive at common law;
yet a court of equity, which can exercise a more liberal discretion than com-
mon law courts, if a plain defect of jurisdiction appears at the hearing, will
no more make a decree than *where a plain want of equity appears.
L ' ' J It is certain, that the original jurisdiction, in cases of this kind relat-
ing to boundaries between provinces, the dominion and proprietary govern-
ment is in the King and Council; and it is rightly compared to the cases of
the ancient commotes and lordships marches in Wales; in which, if a dispute
is between private parties, it must be tried in the commotes or lordships ; but
in those disputes, where neither had jurisdiction over the other, it must be
tried by the King and Council ; and the King is to judge, though he might
be a party, this question often arising between the Crown and one lord proprie-
tor of a province in America. So, in the case of the marches, it must be
determined in the King's Courts, who is never considered as partial in these
cases, it being the judgment of his Judges in B. R. and Chancery. So, where
before the King and Council, the King is to judge, and is no more to be pre-
sumed partial in one case than in the other. This Court, there/ore, has no
original jurisdiction on the direct question of the original right of the bound a-
PENN V. LORD BALTIMORE. ' 479
ries; and this bill does not stand in need of that. It is founded on articles
executed in England under seal, for mutual consideration, which gives juris-
diction to the King's Courts, both of law and in equity, whatever be the sub-
ject-matter. An action of covenant could be brought in B. R. or C. B., if
either side committed a breach ; so might there be for the £5000 penalty,
without going to the Council. There are several cases wherein collaterally,
and by reason of the contract of the parties, matters out of the jurisdiction
of the Court originally, will be brought within it. Suppose an order by the
King and Council, in a cause wherein the King and Council had original
jurisdiction, and the parties enter into an agreement under hand and seal for
performance thereof, — a bill must be in this Court for a specific performance,
and, perhaps, it will appear this is almost literally that case. The reason is,
because none but a court of equity can decree that. The King in Council is
the proper judge of the original right; and if the agreement was fairly en-
tered into and signed, the *King in Council might look on that, and r#7 ^ 9n
allow it as evidence of the original right ; but if that agreement is L -*
disputed, it is impossible for the King in Council to decree it as an agree-
ment. That Court cannot decree in personam in England, unless in certain
criminal matters, being restrained therefrom by stat. 16 Car. 1, c. 10, and
therefore, the Lords of the Council have remitted this matter very properly
to be determined in another place, on the foot of the contract. Hie con-
science of the party was bound by this agreement ; and, being within the juris-
diction of this Court, which acts in personam, the Court may properly decree
it as an agreement, if a foundation for it. To go a step farther, as this Court
collaterally, and in consequence of the agreement, judges concerning matters
not originally in its jurisdiction, it would decree a performance of articles of
agreement to perform a sentence in the Ecclesiastical Court, just as a court of
law would maintain an action for damages in breach of covenant.
As to the second objection : If it was so, it would be very unfortunate; for
suits and controversies might be, for that reason, endless; and this has sub-
sisted above seventy years. This objection is insisted on at the bar, and not
by the answer. The subordinate proprietors may agree how they will hold
their rights between themselves ; and, if a proper suit is before the King in
Council, on the original right of these boundaries, the proprietors might pro-
ceed therein without making any other parties except themselves. In this
respect also, it is properly compared to the case of lordships, marches, and to
counties palatine. When the marches subsisted, there might be a suit in B.
R. concerning their boundaries; and the lord of each march in question need
be the only party. If a matter of equity arose, either of the lordship's marches
might have sued in equity to settle, because this is the king's court of general
jurisdiction as to matters of equity ; and an agreement between the parties re-
lative to these boundaries, if proper in other respects, to carry it *into
a specific performance, is a matter of equity. The Court might, in- L J
deed, by reason of their tenure, require the Attorney-General to be made a
480 POWER, WHERE PROPERTY BEYOND JURISDICTION.
party, to know if he had anything to object ; hut then, might hold plea of the
cause. Suppose both counties palatine were in subjects' hands, (as both have
been formerly,) and subsisted so, and a question had arisen concerning the
boundaries of these two counties palatine, and the respective Earls Palatine
had entered into articles concerning these boundaries, this Court would have
held plea of such articles as well as concerning the boundaries of manors,
seigniories, and honors ; for these are honors, only a franchise of a higher
nature. To say that such a settlement of boundaries amounts to an alienation
is not the true idea of it; for if fairly made, without collusion, (which can-
not be presumed,) the boundaries so settled are to be presumed to be the true
and ancient limits. But suppose it savors in some degree of an alienation,
why ought it not to be ? There is no occasion to determine that, nor will I ;
but it is a new notion, that the lords proprietors of these provinces may not
alien to natural-born subjects. This is nc opinion ; but the grants themselves
are framed so as to be most open to alienation ; being grants to them and their
heirs, to be held in common socage, not iu capite of the Crown, but as Wind-
sor castle is. What rule of law is there, that lands or a franchise granted to
be held in common socage, not in capite, but as a particular honor or manor,
cannot be aliened without license? All the objections concerning knights'
service or capite lands, are out of the case, and the Act 7 & 8 Will. 3, c. 22,
s. 16, supposes the proprietors may alien to a natural-born subject. The first
words of the clause there are, that they and their assigns may be restrained
from alienating without license, which supposes that it was assigned, and this
appears in the case of Carolina. As to the not alienating a parcel, the rule
cited out of the feudists is not applicable, those books treating of different
tenures; but I admit neither of these proprietors could dismember their pro-
vinces, so as to alter *the nature of the thins; granted, and thereby
L J bind the Crown, of whom they held; for the tenure and services
would still remain on the whole, and the Crown might demand the whole ser-
vices from either. It is, therefore, something like the case of the office of
high constable of England, held by tenure of grand sergeanty ; which was
very extraordinary, to hold the manors by tenure of such an office. In Kel.
170, and Dy. 285, 1 the Judges reported their opinion to King Henry 8, that
the tenure was not extinct by the division, but that the king had a right to
insist on the performance of that office from the Duke of Buckingham, by
reason of his moiety ; but this exacting the performance of the service from
either subject is at the king's pleasure to do or not. This is an instance, that,
in honors and tenures of this kind, the king cannot be prejudiced by any alien-
ation, division, or severance between the parties ; and if material services are
reserved on the grant, (though here it is by fealty only, in lieu of all,) the
entire services might be exacted from either, not being apportionable. But
the settling limits is not a dismembering, and if a license to do this was neces-
sary from the Crown, in law or policy, it sufficiently appears there was such ;
1 1 Inst. 106, 149, 1G5.
PENN V. LORD BALTIMORE. 481
for it appears, by Orders of Council made in 1685 and 1709, the Crown has
not only recommended, but ordered, this division to be made, so far as respects
the three lower counties, as to which there is no dismembering; for the divid-
ing line is thereby exactly the same; indeed, the circle is not within these
Orders ; but as to that no difficulty can arise.
As to the third objection : The tenure of the planters, &c, remain just the
same as before, and is preserved by this agreement. The proprietors could
not prejudice them by their agreement; but if they could, care is taken by
the agreement to preserve them. The King of England is still their sove-
reign and supreme lord ; both charters require the law of the respective pro-
vinces should be conformable to the law of England, as near as could be.
Consider to what this objection goes : in lower instances, in the case of manors
and honors in ^England, which have different customs and by-laws p^r-,
frequently, yet, though different, the boundaries of these manors may L ' J
be settled in suits between the lords of these manors, without making the
tenants parties ; or may be settled by agreement, which this Court will decree,
without making the tenants parties, though in case of fraud, collusion, or pre-
judice to the tenants, they will not be bound ; but, notwithstanding, it is bind-
ing on the parties, and to be established as to them. Suppose two bordering
manors had been granted out in tail in recompense of services, the reversion
in fee to the Crown ; in a suit between the lords concerning the boundaries, it
is not necessary to make the king or tenants parties to this suit. Indeed, the
Crown would not be bound by that agreement or decree ; but it is still bind-
ing between the parties. But in this case the same final answer occurs that
does under the other objection, viz. that if there is no fraud or collusion, it
must be presumed to be the true limits, being made between the parties in an
adversary interest, each concerned to preserve his own limits, and no pecuni-
ary or other compensation pretended. And, (abstracted from the general
question of want of jurisdiction,) suppose either party insisted there was such
a breach of the proviso here, as incurred the penalty, and brought debt in B.
R. for that penalty, and the defendant there brought a bill here to be relieved,
(which probably would have been done,) the Court must have relieved against
the penalty, on performance of the articles ; judging on the terms of the re-
lief, and dispensing with the point of time, the Court could not have avoided
it. Then how does this case differ ? For it will not be pretended the King
in Council would have had plea in that case ; it must have come into the king's
courts of equity, which must have judged of the manner of performing that
agreement.
The next head of objection is taken from the general nature and circum-
stances of the agreement.
First, it is true, the Court never decrees specifically without a considera-
tion : but this is not without consideration ; *for though nothing r-^n-,
valuable is given on the face of the articles as a consideration, the L
settling boundaries, and peace and quiet, is a mutual consideration on each
VOL. III. — 31
482 POWER, WHERE PROPERTY BEYOND JURISDICTION.
side and in all eases make a consideration to support a suit in this Court for
performance of the agreement for settling the boundaries. 1
The objection of the time for performance being lapsed may be answered ;
for it is the business of this Court to relieve against lapse of time in perform-
ance of an agreement, and especially where the non-performance has not
arisen by default of the party seeking to have a specific performance, as it
plainly does not here.
Next, these articles are not like submission to arbitration. In those eases,
generally the time is conditional so as determination be made by such a
day; here the line and circle are agreed on by distinct, independent cove-
nants, and that they shall form the boundaries of these tracts of land ; this,
therefore, is a particular, certain, specific contract of the parties, that there
shall be the boundaries ; nothing left to the judgment of the commissioners,
who are merely ministerial, to run the line, &c, according to the agreement,
and set the marks. Therefore, it is not like an award, but is an agreement,
which this Court will see pursued.
As to any imposition or surprise, the evidence is clearly contrary thereto.
It would be unnecessary to enter into the particulars of that evidence ; but
it appears, the agreement was originally proposed by the defendant himself ;
he himself produced the map or plan afterward annexed to the articles; he
himself reduced the heads of it into writing, and was very well assisted in
making it : and farther, that there was a great length of time taken for con-
sideration and reducing it to form. But there is something greatly support-
ing this evidence, viz. the defect of evidence on the part of the defendant,
which amounts to stronger negative evidence than if it was by witnesses; for
it was in his own power to have shown it, if otherwise. Then, am I to pre-
sume he was imposed on, in a plan, too, sent to himself by his own agents ?
As to the plan itself, *it was in his own power: with regard to the
L -• original of these minutes of the agreement, wrote by himself, though
ordered by the Court to be produced, they are not produced ; which negative
evidence supports the evidence of the fairness of carrying on this agreement
on the part of the plaintiff's.
I admit, that, though no imposition or fraud, yet a plain mistake contrary
to the intent, would be a ground not to decree specific performance. But con-
sider the evidence thereof: the defendant and his ancestors were conversant
in this dispute about fifty years before this agreement was entered into, and
had all opportunities; therefore, no ignorance, want of information, or mis-
take, are to be presumed; and in cases of this kind, after an agreement, and
plain mistake contrary to intent of parties not shown, it is not necessary for
the Court to resort to the original right of the parties ; it is sufficient if doubt-
ful. To consider the points in dispute ; and first, upon the defendant's char-
ter, in which it is insisted the whole 40th degree of north latitude is included,
and if so, that it is not to be limited by any recital in the preamble. There
1 And see Stapiiton v. Stapilton, and note, ante.
PEXN V. LORD BALTIMORE. 483
is great foundation to say, the computations of latitude "at the time of the grant
vary much from what they are at present; and that they were set much lower
anciently than what they are now, as appears by Mr. Smith's booh, which is
of reputation ; but I do not rely on that, for the fact is certainly so. But
whatever that was, does it take it in by the description ? It comes to the ques-
tion, whether the usque ad is inclusive or exclusive ; therefore, however de-
scribed, the same question remains. But there is another argument used by
the plaintiffs to restrain the defendant's charter from taking in the whole 40th
degree, viz. the recital of it; for the plaintiffs say, the information, given to
the Crown by Lord Baltimore, was, that, this part was land uncultivated and
possessed by barbarians ; whereas, it was not so, but possessed by Dutch and
Swedes ; and, therefore, the king was deceived in his grant. There is con-
siderable evidence that Dutch and Swedes were settled on the east part of that
country ; but *this is said to be no deceit on the Crown : for, though
some stragglers were settled there, yet, if not recognized by the Crown, L ' ' J
that is not a settlement. I am of a different opinion ; for, in these countries
it has been always taken, that that European country which has first set up
marks of possession has gained the right, though not formed into a regular
colony ; and that is very reasonable on the arguments on which they pro-
ceeded. Then, will not that affect the grant? If the fact was so, that
would be as great deceit on the Crown, in notion of law, as any other matter
arising from the information of the party; because such grants tend to involve