Nov. 1802 tioner was again called upon and compelled to go te brad Garretson V8. Cale. Annapolis on the first Monday in November, but having a letter from his counsel to the said R. R. who well knew the agreement to have been that he was not to be obliged to attend until the meeting of the court of appeals, the petitioner was again dismissed, and suffered to return home. That he has no doubt but had the court of appeals made a court on the second Monday of November, to which they adjourned, they would have had the entry made in the said suit, struck out, and would have admitted the said cause to be argued, but unfortunately, by the absence of one of the judges, no court was held that could make any entry, or do any business. That in consequence of the court of appeals having twice failed to meet at the times when they might have had a session, there will be a necessity to have an act of assembly in order to enable the court of appeals to bring forward such causes as ought to have been decided at the sessions of November 1798, and June 1799, and which have been discontinued, as jus tice in their opinion shall require to be brought forward; and the petitioner expected there would be a provision, that if said court shall think, under the circumstances of the petitioner's case, justice requires it, they shall be empowered to reinstate the said case, and make any entries therein which they might have made had they met on the said second Monday of November, to which day they adjourned. That all his desire is to have his cause fairly and candidly heard and determined; if on such hearing and determination, the decree shall be affirmed, he will cheerfully submit thereto, and comply therewith. That the petitioner hath been actuated by no want of respect to the chancellor, or to the court, but has declined doing any act which might injure his title in consequence of the reasons before stated. He feels the strongest confidence that the chancellor is one of the last persons in the state who would wish to prevent him from a fair and full discussion of his case in the court of appeals, or who would, had he known the circumstances of the case, suffered the process of the court of chancery to be used for such a purpose. He prays that all process upon the said attachment may be staid, &c. THE CHANCELLO, on the same day, having considered this petition of Garrelson's, together with the deposition therein referred to, and the petition appearing reasonable, it was adjudged and ordered, that Garretson be discharged from the attachment issued against him at the suit of Cole, on his, Garretson's, paying the costs of the attachment; provided nevertheless that if, at any time hereafter, at the instance of Cole, and at discretion, the chancellor may issue against Garretson an attachment or other process for not complying with the final decree obtained against him by Cole. On the 21st of January 1800, Cole renewed his petition to the chancellor for an order directing the sheriff to bring into court the body of Garretson; and the CHANCELLOR on the 27th of the same month, passed an order that the sheriff of Baltimore county bring into the court, on the first day of the next term, viz. on the 18th of February next, the body of Garretson, whom the said sheriff had returned attachedon the 19th of February 1800, Cole filed a new pet Nov. 1802 Garretson Cole. tion, stating the decree and affirmance, and servicesABYA &c. and prayed for an attachment, &c, HARVARD LAW SCHOOL Martin, (Attorney General,) solicitor for Garretson, to whom the chancellor had given an opportunity to LIBRARY shew cause why an attachment ought not to issue in this case, contended, in the first place, that there had not been a proper foundation laid even for the former attachment which issued; for these reasons, 1. There ought to have been a writ of execution of the decree served upon the defendant before an attachment of contempt could be issued for noncompliance. A copy of a decree, under seal, and the shewing it to the party, and leaving a copy of it with him, is very different from a writ of execution of a decree, and the service of it, and is insufficient. Nov. 1802 Garretson VS. Gule. 2. That the copy was served by one Sindall, as an attorney for Cole, and by him the deed was tendered -But it is not stated that he shewed to Garretson the power of attorney, It is true, he says he left with him a copy of it, but that copy would not enable him to determine whether it was genuine or false. Nay, had he shewn the original power, Garretson could not have known, whether the name signed thereto, or the name of the witness, were genuine, and the instrument, as will appear by the chancellor's view, carries with it great cause why it should be suspected, from the variety of alterations appearing on its face, 3. A person, who is obliged to convey, is not obliged to do it at the instance of any person to whom the deed is to be made, nor to know that he is an attorney for the person; nor is a person obliged to take a deed executed by a power of attorney, and so it has been determined. 4. There was not produced to Garretson a certifi cate of the clerk of the court of appeals that the decree was affirmed; and without that, Garretson was not obliged to notice the application made to him, especially as it was not made by any person authorised by the court of chancery, nor any writ of execution of the decree from the court of chancery shewn to him, or served upon him. 5. When the said copy of the decree was served on Garretson, he was in the custody of the sheriff, and locked up in gaol, as Sindall proves himself, he therefore could not have executed the deed had he wished so to have done. It is true he might have signed and sealed it, but he could not have perfected it, 6. Every man, when a deed is offered to him to execute, has a right by law to lay it before counsel learned in the law, to have their opinion whether it be such a deed as he is required to execute, in order that he may avoid the injury which otherways artful, designing men might cause him to suffer, by taking advantage of his ignorance. This Garretson could not do, circumstanced as he was when the application was made to him; therefore the application made to bim under such circumstances, and his refusal, was Nov. 1802 not a contémpt, or ground for an attachment. He adverted to Garretson's petition to the chancelJor of the sd of December, and the chancellor's order thereon discharging Garretson, &c. And appealed to the chancellor's knowledge of the law, whether, after a person has been heard, and by a solemn decision discharged from an attachment, he can afterwards be attached by reason of the acts for which he had been formerly attached, and on a hearing discharged. He thinks he hazards nothing in saying, that in the annals of judicial or equitable proceedings nothing of the kind can be discovered, and that such procedure would be an outrage to common sense and common justice. Has any thing been done since the discharge of the 3d of December to entitle Cole to obtain an attachment against Garretson? Has, since that time, any writ of execution of the decrce been served upon him? Has, since that time, any deed been offered to him to sign? Nothing of the kind is preter.ded. Upon the principle, which caused the chancellor to discharge Garretson on the 3d of December, it is contended that no procedure ought to be had before the time when the court of appeals shall meet; and it is very respectfully submitted to the chancellor, that in the previous application there has not been much respect shewn to him or to the court of appeals. A law passed the last session, (November 1799,) directing the court of appeals in what cases they are empowered to reinstate actions. On this law they are to act. It rests therefore with them, and with them only, to give it a construction in the first instance, and also in the last. To that court applica tion will be made to reinstate the case of Garretson against Cole, and no doubt they will take care there shall not be a failure of justice. Why should an attachment be granted? Why should it be applied for? When by a law of this state, the decrce if honestly affirmed, is as valid, and gives Cole all the rights which could flow from a conveyance under the decree. Why then do Cole, and his counsel, at Garretion VS. Cole, Garreston Coles Nov. 1802 tempt per fas et refas to force Garretson to execute a deed, except to obtain an advantage which they are conscious they cannot obtain from the mistaken or fraudulent entry of affirmance; and is a court of chancery obliged to aid and support what is founded in error or fraud? On the contrary, it is among the most sacred duties of that court to protect against, and relieve from fraud, error or imposition. THE CHANCELLOR, on motion of Cole's counsel, granted him leave to amend his last mentioned petition of the 19th of February, in any manner he thought proper. And the petition was amended, praying that the chancellor would decree the title to be vested, and issue a writ of injunction, in the nature of the habere facias possessionem, to deliver to Cole the possession of the land and premises in the decree mentioned. HANSON, Chancellor, on the 24th of February 1800, passed the following decree: "The complainant applies, by petition, for an injunction or process of some kind, to secure him the benefit of the decree, long since passed in this court, and affirmed in the court of appeals. The defendant, by his solicitor, insists that, notwithstanding the said decree and affirmance, there is no foundation for any process whatever. The nature of the present contest requires, in the chancellor's opinion, that he should make some remarks on proceedings, in which, from mere tenderness to the defendant, he went perhaps to at least the verge of impropriety. It would seem, as if some of those proceedings were expected to be ruinous to the complainant's cause; and contemptible indeed must be the jurisdiction of this court, if from its defects, a man, in any case, is to derive no benefit from a decree, which it is authorised to make. ' Although from the bill, answer and proofs, it appeared, that the defendant had merited a vacation of his patent, and that in strictness, a vacation might, and ought to be decreed, the chancellor, on deliberation conceived, that he might only decree that, which |