[English and others vs. Foxall.]

cross bill, and require separate decrees. The decree as to the deficiency, cannot be sustained, unless it can be done under the prayer for general relief. There is no doubt, but that under the general prayer, other relief may be granted than that which is particularly prayed for. But such relief must be agreeable to the case made by the bill; and there is nothing in the first bill to sustain the particular relief granted as to the deficiency. This part of the deed must therefore be reversed. The residue is affirmed, omitting the name of Mrs Foxall in the investment directed to be made. There is nothing in the marriage settlement which entitles her to be joined with the trustees in the investment. In the other cause the decree dismissing the bill is affirmed.

In the first case the following decree was rendered.

This cause came on to be heard on the transcript of the record from 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, this Court is of opinion, that the decree of the said circuit court in this cause is erroneous in this, that there is nothing in the first bill to sustain the particular relief granted as to the deficiency; whereupon it is considered, ordered and decreed by this Court, that the decree of the said circuit court, so far as it grants the particular relief as to the deficiency in this cause, be, and the same is hereby reversed and annulled; and that the residue of said decree in all things else be, and the same is hereby affirmed, omitting the name of Mrs Foxall in the investment directed to be made; and that the cause be, and the same is hereby remanded to the said circuit court for further proceedings to be had therein, according to law and justice.

ANTHONY TAURIN CHIRAC AND OTHERS, PLAINTIFFS IN ERROR vs. GEORGE REINECKER, DEFENDANT IN ERROR.

After the plaintiffs had proved, by a surveyor, that most of the lines and streets in "Howard's late addition to Baltimore town" had been run by him as the same were marked in a particular plot, upon which was the lot of ground for which the ejectment was brought, they gave the plot so authenticated in evidence. This was contained in a volume in which were also other plots. The defendant then offered in evidence another plot, in the same volume, but gave no evidence to authenticate it, claiming to use the same in evidence, as it was authenticated in the same volume in which was that exhibited by the plaintiffs. It was held, that the whole volume was not in evidence; and if the defendant meant to use any plot in the same, it was his duty to establish it by competent proof of its particular authenticity. [619] Evidence to establish heirship and pedigree, had been obtained under a com'mission issued for that purpose to France, in an action of ejectment, in which the plaintiffs had recovered the lots of ground for which this suit was instituted. In the course of that trial, a bill of exceptions was tendered by the plaintiffs and sealed by the court, in which the evidence contained in the commission was inserted. The commission and the testimony obtained under it were afterwards lost. In an action for mesne profits, brought by the plaintiffs in the ejectment, against the landlord of the defendant in the suit, who had employed counsel to oppose the claims of the plaintiffs, but who was not a party to the suit on the record; it was held, that the testimony, as copied into the bill of exceptions, was legal and competent evidence of pedigree. [620]

It is well known, that in cases of pedigree, the rules of law have relaxed in respect to evidence, to an extent far beyond what has been applied to other cases. This relaxation is founded on principles of public convenience and necessity. [621]

Where A. was the real landlord of the premises in controversy in an ejectment, and employed counsel to defend the suit, but was not a party defendant on the record, the record of the recovery in the ejectment, when offered in evidence in an action of trespass for mesne profits against B., is not conclusive evidence of title in the plaintiffs; but is prima facie evidence thereof, and is evidence of the plaintiffs' possession; but B. may controvert the title of the plaintiffs. As to third persons, strangers to the suit, the record is evidence to show possession of the property in the plaintiffs. [622]

When the court was asked to instruct the jury upon a particular point, if they believed from the evidence certain facts, and there was not the slightest evidence from which the jury had a right to believe the existence of any such facts, the court ought not to have given such instructions, since they were calculated to mislead them, and raise a mere speculative question. [625] By the law of descent of Maryland, a person claiming as heir must prove himself heir of the person last seised of the estate; and if an intestate leaves a brother of the whole blood who survived him and died without issue, and with-, out having ever been actually seised of the estate, the estate will descend to the half blood of the person so seised. [625]

[Chirac and others vs. Reinecker.]

ERROR to the circuit court of Maryland.

An action of trespass, for mesne profits, was instituted by the plaintiffs in error in the circuit court of the United States for the Maryland district, Anthony Taurin Chirac and others, against the defendant in error; upon the recovery of certain real estate in the city of Baltimore, by the judgment of this court at February term 1817. 2 Wheaton, 259. The ground lies in a section of Baltimore, called "Howard's late addition to Baltimore town," and is part of the lot designated in that addition by, the number 802. The párties, plaintiffs in this action, were the same with those in the ejectment, with the addition of the husband of Maria Bonfils Desportes, one of the plaintiffs, with whom he has since intermarried.

The defendant in the ejectment was John Charles Francis Chirac. This action was brought against the defendant in error, on the ground that he was, in fact, the real defendant in that suit; he having taken on himself the defence, employed counsel, and being the real party, in interest; as he had been the receiver of the rents and profits of the estate, during the whole period for which they were claimed by the plaintiffs in this action.

After a trial of this case in the circuit court of Maryland, it was removed by the plaintiffs by writ of error to this Court; and at February term 1826, the Court decided, among other points which were presented by the record, "That the action for mesne profits may be maintained against him who was the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit; although he was not a party to that suit, and, did not not take upon himself the defence thereof upon the record, but another did as landlord." Also, that "a recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons. But when the action is brought against the landlord in fact, the record in the ejectment suit, is admissible to show the possession of the plaintiff connected with his title; although it is not conclusive upon the defendant, in the same manner as if he had been a party on the record."

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[Chirac and others vs. Reinecker.]

At the trial of this case in the circuit court, in December 1827, after the same had been returned to that court under the mandate of this Court, the plaintiffs gave evidence to show, that the defendant in error was, before the institution of the ejectment, the claimant and actual landlord of the property, and had continued such until the recovery of the same; and that he had employed counsel, and had sustained the defence by his funds exclusively. They also proved, that the property had been conveyed to him by the defendant in the ejectment. The evidence of title exhibited by the plaintiffs, showed the property to be in John Baptist Chirac, as whose heirs the plaintiffs claimed and recovered the same in the ejectment; and, in order to show the location of the ground, the plaintiffs exhibited in evidence to the jury, the public plot of "Howard's late addition to Baltimore town;" by which it appeared, that the lot embraced part of a street called Walnut street, which, the plaintiffs further proved by the city records, had been shut up, and the ground included in it divided between the owners of lots bounding upon it.

The plaintiffs then offered in evidence the record of the proceedings, judgment, and writ of possession, in the ejectment; but the defendant objected to the reading of the same, except to show the possession of the property of the plaintiffs mentioned in the record. The court admitted the parts of the record as prima facie evidence of title in the plaintiffs, and permitted them to be read in evidence as such proof of title.

The defendant then offered to exhibit in evidence, a plot from the volume of plots, in which was that already mentioned, of "Howard's late addition;" to show that the whole of Walnut street was out of the limits of "Howard's late addition;" and that the parties under whom John B. Chirac claimed, and John B. Chirac, had no title to a certain portion of the ground recovered in the ejectment. The plaintiffs objected to the use of the plot in evidence, and for that purpose. The court allowed the testimony, and the plaintiffs excepted.

The plaintiffs then read in evidence certain depositions, taken under a commission issued in this cause to France,

[Chirac and others vs. Reinecker.]

showing the kindred of John Baptist Chirac, and the marriage of Maria Bonfils; and also offered evidence by Mrs Lafolloniere, of the death, before John B. Chirac, of Gabriel Chirac, the only brother, or relation in that degree, of the whole blood, of John Baptist Chirac. And they then proved, that the original depositions taken in the ejectment cause were lost; and therefore, in order to show the pedigree of the plaintiffs' family, offered to read in evidence the bill of exceptions, which embodies these depositions, contained in the record and proceedings of the recovery in ejectment; but the court, upon the defendant objecting, refused to allow it to be so read in evidence, and the plaintiffs excepted.

After this evidence was given, and the testimony was closed on both sides, (none having been offered on the part of the defendant, except that stated in the first exception, on the point of location,) the plaintiffs offered in evidence the record of recovery in the ejectment, as conclusive evidence of the right and title of the plaintiffs to the premises, against John Charles Francis Chirac, and against the defendant holding under that title-but the court refused to admit the evidence so offered. The plaintiffs excepted.

The plaintiffs then prayed the court to instruct the jury, that if the jury believed the evidence given, the plaintiffs had shown a sufficient title to the premises in the declaration to entitle them at law to maintain this action against the defendant. The court refused to give this instruction -and the plaintiffs took a further exception.

The defendant then prayed the court as follows:

1. That if from the evidence the jury believed that John B. Chirac, who died seised of the premises in the declaration mentioned, had any brother or brothers, sister or sisters, of the whole blood, or their descendants, who survived the said John B. Chirac the younger; then the plaintiffs are not entitled to recover.

2. That if the jury believe that the said John B. Chirac, the elder, had by his second wife another son beside the said John B. Chirac the intestate, then it is incumbent upon the plaintiffs to show, before they can entitle themselves to