Darby

V.

subject to the land laws of Tennessee. Their 1825. laws affecting devises, and the rules of their Courts respecting evidence in ejectment, must be the law of this case, as far as the constitution of the United States does not control the one or the other.

Mayer.

The lex loci ræi sila governs as to the effect of a de

country

ther.

one

of

But Quere, how the ral principle is

far this gene

modified by the

With regard to the modification under which vise the right of devising may be exercised, there is lands in anono question that the power of the State is unlimited; and wills of realty, wherever executed, must conform to the laws of Tennessee. The right of determining whether its laws have been complied with in this respect, is a necessary result from the power of passing those laws. in this respect, it has been supposed, that right of the States is in some measure controlled provisions of by that article of the constitution, which declares tion and laws "that full faith and credit shall be given in each respect to the State to the public acts, records, and judicial dit," proceedings of every other State." And hence be given to the that a will of lands duly recorded in one State, judicial proso as to be evidence in the Courts of that State, ceedings of is rendered evidence thereby in the Court of every other State, provided the record, on the face of it, shows that it possessed the solemnities required by the laws of the State where the land lies.

As this is a question of some delicacy as it relates to devises of lands, the Court passes it over at present, being induced to adopt the opinion, that the rule could not be applied to this case, since the laws of Maryland do not make the probate here offered evidence in a land-cause in the Courts of that State.

the constitu

of the U. S. in

faith and cre

&c. to

public acts, records, and

each State in

every

State?

other

1825.

Darby

V.

Mayer.

law of Mary

dence of the

will of lands, in

ejectment, is

the common

land.

That the law of Maryland, with regard to the evidence of a devise in ejectment, is the common law of England, is clearly recognised in the case of Smith's lessee v. Steele, (1 Harris and M'Henry, The local 419.) In that case, as in this, a copy of the will land, as to evi- and probate were offered in evidence, and was probate of a supported by proof of the loss of the original will an action of from the office of probates. Yet the whole arthe same with gument turns, not on the admission of the copy law of Eng-and probate per se, but whether admissible at all to prove the existence and contents of the original will. And the Court declare, in permitting it to be read in evidence to the jury, that they are at liberty to find for or against the original will, not holding them bound from the production of the probate to find for the plaintiffs. It is observable also in that case, that it is yielded in argument throughout, that the admission of the probate could only be sustained on the idea, that the acts of 1704 and 1715, now no more in force, permitted the ordinary to take probate of wills of land. But it has been supposed, that the Maryland law of probates of 1798, has, by express enactment, made such probates evidence in their own Courts. And had it been shown, that such had been the established construction of that law, and the practice of the State Courts under it, this Court would not have hesitated to relinquish their own views on the correct construction to be given to that clause.

As it is, we must pursue the suggestions of our own minds with regard to the legal construction of the act.

Darby

V.

Mayer.

The act of

Assembly of
Maryland of

1798, s. 4. ch.

not extend to

pro- a will of lands

so as to make the probate conclusive evi

action of eject

The clause alluded to is the 4th sec. ch. 2. art. 1825. 3. of the act in question, and is in these words : "An attested copy, under the seal of office, of any will, testament, or codicil, recorded in any office authorized to record the same, shall be admitted in evidence in any Court of law or equity, provided that the execution of the original will 2. art. 3. does or codicil be subject to be contested until a bate hath been had according to this act." It is true, that the generality of the terms in the dence in an first lines of this clause is such as would, if un-ment. restricted by the context, embrace wills of lands. It is also true, that the previous chapter in the same article prescribes the formalities necessary to give validity to devises of real estate; it is further true, that the previous sections of the second chapter indicate the means, and impose the duty of delivering up wills of all descriptions to the Register of the Court of Probates, for safe keeping, after the death of the testator, and until they shall be demanded by some person authorized to demand them for the purpose of proving them.

But it is equally true, that the act does not authorize the registering of any will without probate. Nor does it, in any one of its provisions, relate to the probate of any wills, except wills of goods and chattels.

The clause recited makes evidence of such wills only as are recorded in the offices of Courts authorized to record them. But when the power of taking probate is expressly limited to the probate of wills of goods and chattels, we see not

Darby

1825. with what propriety the meaning of the clause in question can be extended to wills of any other description. The Orphan's Court may take proMayer. bates of wills though they affect lands, provided

V.

By the laws of Tennessee,

a will of lands

State is not

they also affect goods and chattels ; but the will, nevertheless, is conclusively established only as to the personalty.

Unless the words be explicit and imperative to the contrary, the construction must necessarily conform to the existing laws of the State on the subject of wills of real estate. And when the power of taking probates is confined to wills of personalty, we think the construction of the clause recited must be limited by the context.

We are, therefore, of opinion, that there was the probate of nothing in the law of Maryland which could, unin another der the constitution, make the document offered made evidence to prove this will per se evidence in a land cause. in an eject-Nor does there appear to exist any rule of law in in Tennessee. Tennessee, which could make such a document good evidence under the laws of that State.

ment for lands

Since, therefore, the charge of the Court was general in favour of the defendants, and the effect of each particular piece of evidence upon the minds of the jury cannot be discriminated, this opinion disposes of the whole cause.

The case presents several other, and very important questions, but the Court will at present decline remarking on them.

Judgment reversed, and a venire facias de novo awarded.

[INSTANCE COURT. PRACTICE.]

J. MANRO and others v. JOSEPH ALMEIDA, and the goods, chattels, and credits of the said AL

MEIDA.

The Courts of the United States, proceeding as Courts of admiralty and maritime jurisdiction, have jurisdiction in cases of maritime torts, in personam as well as in rem.

The Courts of the United States, proceeding as Courts of admiralty and maritime jurisdiction, may issue the process of attachment to compel appearance, both in cases of maritime torts and contracts. Under the Process Act of 1792, c. 137. [xxxvi.] s. 2. the proceedings in cases of admiralty and maritime jurisdiction in the Courts of the United States, are to be according to the modified admiralty practice in our own country engrafted upon the British practice; sufficient reason for rejecting a particular process, which has been constantly used in the Admiralty Courts of this country, that it has fallen into desuetude in England.

and it is not a

The process by attachment may issue, wherever the defendant has concealed himself or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty.

It may issue against his goods and chattels, and against his credits and effects in the hands of third persons.

The remedy by attachment in the admiralty, in maritime cases, applies even where the same goods are liable to the process of foreign attachment, issuing from the Courts of common law,

It applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence.

In case of default, the property attached may be condemned to an swer the demand of the libellant.

It is not necessary that the property to be attached should be specified in the libel.

It seems, that an attachment cannot issue without an express order of the Judge, but it may be issued simultaneously with the monition; and where the attachment issued in this manner, and in pursuance of the prayer of the libel, this Court will presume that it was regu larly issued.

4825.

Manro

V.

Almeida