The State, use of W. County, vs. B. and O. R. R. Company.-1842.

ber of the Federalist, a work of distinguished merit and ability, written principally by two eminent members of that convention of enlightened men, by whom the Constitution of the United States was formed, Mr. Madison, speaking of that principle contained in it, which prohibits the States from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, uses the following language as indicating his understanding of the views of the convention when they adopted that prohibitory clause of the Constitution-"The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional defences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights." In 2 Dallas, 320, Judge Patterson, who was also a member of the convention by which the Constitution was formed, speaking of the import of the same constitutional restriction upon State legislative power, expresses himself in the following terms: "Over public property they have a disposing and controling power, over private property they have none, except perhaps in certain cases, and those under restrictions; and except also what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents." In 2 Kent's Com. 275, Chancellor Kent says: "Public corporations are such as are created by the government for political purposes, as counties, cities, towns and villages, and the whole interest in them belongs to the public." In the Dartmouth College case, the Chief Justice, in delivering the opinion of the court, observed, that the provision in the Constitution never had been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with the government, and its funds

The State, use of W. County, vs. B. and O. R. R. Company.—1842.

were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake in any degree, in the administration of civil government. A contract of that kind he held to be within the purview and protection of the Constitution. In 9 Cranch, 52, Mr. Justice Story, in delivering the opinion of the court, says: "In respect also to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the use, of those, for whom, and at whose expense, it was orginally purchased." In 9 Gill & John. Rep., 401, this court express themselves to the same effect, where they say: "Public corporations are to be governed ac cording to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control and direct the corporation, its funds and franchises. That is of the essence of a public corporation." Again, in page 397 of the same book, it is said: "A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government, subject to the control of the Legislature, and its members, and officers of the government for the administration or discharge of public duties, as in the cases of cities, towns, &c."

In 1804, the justices of the levy courts of the respective counties were incorporated, and all property belonging to any county, or appropriated to any county use or purpose, was vested in them for the benefit of the county; and by an act passed in 1829, chap. 21, commissioners are directed to be chosen biennially by the voters of the county of Washington, who are likewise incorporated, and in whom the same powers and privileges are vested, as were given to the justices of the levy courts by the act of 1804, and all property belonging to the county or appropriated to its use, is in like manner vested in

The State, use of W. County, vs. B. and O. R. R. Company.-1842.

the said commissioners. The money then for which this suit has been brought, if recovered, would be vested in this body coporate, as a public corporation, for public or county purposes, and would not be private property, belonging to the citizens of the county in their individual rights or private capacities. It would be held by the commissioners as public property given by the State, to be used only under legislative authority, for public purposes, and be subject in their hands, in all respects whatsoever, to the controling power and jurisdiction of the Legislature.

It is a circumstance moreover worthy of consideration, as indicating the public character of these commissioners, and the official relation in which they stand to the government as public agents, that the act of incorporation provides, that in case of death, resignation, refusal to act, or removal from the county, the vacancy so occasioned, shall be filled by the Executive of the State, until a new election shall take place.

To put the question in a still stronger light, let it be supposed for the sake of the argument, that the one million of dollars had been appropriated as a forfeiture to the use of the Eastern Shore of Maryland, one of the two great divisions of the State, could it be contended with any semblance of reason or propriety, that a remission of the penalty by the State would not be a legitimate exercise of legislative power? Or to put the question in a still clearer point of view, suppose the money had been appropriated to the use and benefit of all the counties of the State, designating each of them by their respective names, (which would be substantially to the use of the State,) could it be successfully maintained, that the gov ernment, if the public good required it, would have no right to remit the forfeiture? And if it could be lawfully done, where the interests of all would be involved, upon what principle of sound reasoning could it be urged, that the same power and jurisdiction would not exist, where the rights of one alone would be concerned? If the interest of Washington county could be merged in the public good in association with her sister counties, without a violation of constitutional law, where 56 v.12

Miles vs. Knott.-1842.

reasons of State policy required the sacrifice to be made upon the altar of the general welfare, it is difficult to conceive upon what ground of fair reasoning a similar power could be denied to exist, where her interest alone, in her separate capacity, should be offered up as a victim, to attain the same object. A jurisdiction which would be rightfully exercised in the one case, could not be wrongfully exerted in the other.

Under every view, therefore, which we have been able to take of this case, we think that the claim of the appellants is wholly groundless and untenable, and that the judgment of the court below ought to be affirmed.

JUDGMENT AFFIRMED.

RICHARD H. MILES US. FRANCIS KNOTT'S LESSEE. -Decem

ber, 1842.

The misrecital in the writ of fieri facias of the judgment, on which it is founded, does not render it inadmissible as evidence for the party who pur. chased under it.

The failure to recite the judgment accurately in the writ of fi. fa., does not render the process void.

It is erroneous process, but such an error does not affect the title of a purchaser acquired under it.

The act of 1778, chap. 21, sec. 7, gives plaintiffs a year after a stay entered on the docket to issue execution.

The act of 1823, chap. 194, gives three years from the date of the judgment, and not from the expiration of the stay, to issue execution.

If there be no stay on a judgment, or a stay not exceeding two years, execution must be taken out within three years from the date of the judgment. If the stay be for three years, or a longer period than three years, the execution may be taken out within a year from the expiration of such stay, according to the act of 1778, chap. 21.

So far as the right to issue execution is concerned, the judgment of superse deas dates from the day of its confession, and not from the day of its being

filed.

No execution can rightfully issue on a supersedeas judgment after three years from its date, without a scire facias to revive it.

Whether a title would pass to a purchaser under an execution issued upon a supersedeas judgment, more than three years after its date, depends upon the question whether the writ was void or voidable. If void, no title could

Miles vs. Knott.-1842.

pass. If voidable, the purchaser acquires a title. Such process is only voidable.

The question of irregularity in the issuing of a writ of execution can never be discussed collaterally in another suit.

The copy of an account of the defendant, passed against a deceased person, certified by the register of wills, under his seal of office, is not evidence against him to establish the facts set out upon the face of such account. The law does not authorise such vouchers to be recorded, nor are they left in the custody of the register.

In an action of ejectment against the defendant in a judgment, whose land had been levied upon and sold to pay his debt, by the purchaser thereof, he is not called upon to show title out of the State. All that is required on the part of the plaintiff, is the production of the judgment against the defendant, the fieri facias, and proof of the sale of the land to the plaintiff. Declarations to affect a sale made by a deputy sheriff, on the ground that they are a part of res geste, must appear to have been made at the time of the sale.

Declarations of a deputy sheriff, at the time he made a sale of land under a

fi. fa., are inadmissible in an action of ejectment for the land, to contradict the return of the sheriff, and thus show that a tract returned as sold by one name, was in fact sold by another name.

A verdict in ejectment which calls to run from one fixed object to another, with the meanders of a stream, not located upon the plots, is so entirely uncertain, whether it is within the lines of the tract claimed and defended or not, that no judgment could be entered upon it, nor writ of possession executed under it. It may therefore be set aside upon a motion in arrest, and a venire de novo awarded.

APPEAL from Saint Mary's county court.

This was an action of Ejectment, brought on the 28th January, 1834, by the appellee against Eleanor Ellis, for a tract of land called Penerine. At August term, 1834, she appeared, pleaded not guilty, and took defence on warrant, on which issues were joined. Her death being suggested, the appellant, her tenant in possession, was summoned, and appeared to the action. At March term, 1841, a jury was sworn, who returned a verdict, that the defendant in possession was guilty of the trespass and ejectment aforesaid, "of and in all that part of the tract or parcel of land in the declaration aforesaid mentioned, called Penerine, beginning at a blue stone marked A on the plot, and running thence to a locust marked B; thence with the meanders of the run to a poplar marked C; thence to D; thence to E; thence to the beginning boundary in manner and form as, &c.