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record evidence of any payment whatever, and the deed itself does not recite any consideration.

"4th. The act of Congress of March 3, 1843, entitled 'An act to provide in certain cases for the sale of the real estate of infants within the District of Columbia,' repealed the Maryland act of 1798, so far as concerned the sale of the real estate of infants; and since that act of Congress was passed, the real estate of infants could only be sold upon a bill filed therefor as prescribed by said act of Congress; and, as no such bill was filed in reference to the real estate in question, the deed of Eliza V. Thaw to Agricol Favier did not convey the interest of Columbus Thaw therein.

"5th. The orphans' court of the District of Columbia, at the date of the proceedings therein relating to the sale of the real estate by Eliza V. Thaw, guardian, was one of limited jurisdiction; and a party claiming title to real estate under its proceedings must show affirmatively that it had jurisdiction; and that not having been shown in this case, the deed from Mrs. Thaw to Agricol Favier did not convey the interest of the plaintiff in the real estate in question.”

But the court refused so to instruct the jury, and directed a verdict for the defendant; a verdict and judgment were rendered accordingly; and the plaintiff excepted to the refusal and direction.

The court in general term, Justices Hagner and James sitting, reversed the judgment, for the reasons stated in an opinion delivered by Mr. Justice Hagner, and reported in 4 Mackey, 347, 358-390. Upon the defendant's petition, a reargument was ordered before the whole court, and the original judgment was affirmed, for the reasons stated in the opinion delivered by Mr. Justice Cox, and reported in 5 Mackey, 200– 228, Mr. Justice Hagner dissenting. The plaintiff sued out this writ of error.

Mr. F. P. Stanton and Mr. S. R. Bond for plaintiff in

error.

The principal questions for consideration are:

First. Did the Maryland act of 1798 give jurisdiction to

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the orphans' court, with the approval of its order by the late Circuit Court, to decree the sale of real estate of infants?

Second. If such jurisdiction was conferred by said act, was it in force in this District at the date of the alleged decree and sale, or was it repealed or superseded by the act of Congress of March 3, 1843, entitled "An act to provide in certain cases for the sale of real estate of infants within the District of Columbia?"

Third. Assuming that the act of 1798 conferred upon the orphans' court the power to decree the sale of an infant's real estate under its provisions, does the record in this case show that it acquired jurisdiction for that purpose and that the alleged sale was legally made?

Fourth. Was the infant's interest in the property in question real estate in such a sense as to be the subject of such a sale?

I. The Maryland act of 1798, c. 101, sub-chapter 12, provides, in § 6, that every guardian appointed by the court having the care of real estate, shall, within three months after executing his bond, procure the said estate to be viewed and reported on by two skilful, discreet persons, not related to either party, and appointed by the orphans' court, who shall take an oath to appraise the same without favor or prejudice, and shall estimate the annual value thereof, and set down what improvements, etc., are on the land, and their condition, etc., and shall make a certificate of all they have done, and the same shall be returned by the guardian to the orphans' court within three months.

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Section 7 provides that " No guardian shall commit waste on the land; but the court may, on his application, allow him to cut down and sell wood and account for the same, in case it shall deem the same advantageous or necessary for the ward's education and maintenance."

Section 8 provides that the guardian shall either cultivate or lease such real estate, or may with the court's approbation, undertake the estate on his own account and be answerable for the annual value.

Section 9 provides that the guardian shall account for all profit and increase of the estate, etc.

VOL. CXXXVI-34

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Section 10 is as follows:

"And once in each year, or oftener if required, a guardian shall settle an account of his trust with the orphans' court; and the said court shall ascertain, at discretion, the amount of the sum to be annually expended in the maintenance and education of the orphan, regard being had to the future situation, prospects and destination of the ward; and the said court, if it shall deem it advantageous to the ward, may allow the guardian to exceed the income of the estate, and to make use of his principal, and to sell part of the same, under its order: Provided, nevertheless, That no part of the real estate shall, on account of such maintenance or education, be diminished without the approbation of the Court of Chancery or General Court, as well as of the orphan's court."

This proviso is claimed by the counsel for the defendant to confer upon the orphans' court plenary power, upon the ex parte petition of the guardian, without bill or citation of any kind to the infant, to pass a decree for the sale of his real estate upon an ex parte ratification of the decree by the late Circuit Court, and this in the face of the express provision in the same act establishing the orphans' court, "that the said orphans' court shall not, under any pretext of incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given by this or some other law."

We deny the correctness of this interpretation. Looking at the specific and guarded provisions of that act to protect the rights of an infant in respect to his personalty and to his slightest interest in the realty, such as the cutting and selling wood therefrom, or its careless cultivation even, it is beyond reason and belief that the same legislative body should, in the same act, have intended to confer upon the orphans' court, to which it positively prohibited the exercise of any incidental or constructive jurisdiction, authority to sell the infant's realty, including timber and improvements, without the slightest direction as to the manner of sale or the proceedings by which the same was to be effected.

The authority, if any, must be expressly conferred. Where are the words found which give any such express grant of

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power? The brief proviso, negative in its terms, "that no part of the real estate shall, on account of such maintenance and education, be diminished without the approbation of the Court of Chancery or General Court, as well as of the orphans' court," is the sole expression in the law upon which our opponents rely as the grant of such power. The words sell or sold do not occur in it. If it was intended to confer the power to sell real estate it would have said so, as nothing was to be taken by implication. The acts of Congress of 1843, 5 Stat. 621, c. 87, and 1856, 11 Stat. 118, c. 163 (Rev. Stat. D. C. §§ 968, 973), relating to the sale of real estate of infants, etc., explicitly treat the proceeds of such sale as real estate standing in the place of that which was sold.

In the Maryland system of jurisprudence at that time there was no necessity to confer such power upon the orphans' court, nor could any exigency arise wherein the interest of infants could demand its exercise; for whenever there was a proper occasion for the sale of the realty, the guardian could procure such sale through the more guarded and appropriate proceedings of a Court of Chancery.

The courts of Maryland have maintained the jurisdiction of the Court of Chancery of that State, independent of statute, to decree the sale of an infant's real estate upon a proper showing, and through proper proceedings. In Corrie's Case, 2 Bland, 488, Chancellor Bland says it has always been admitted that the Chancellor of Maryland was invested with all the powers in relation to infants with which the Chancellor of England had been clothed. To the same effect are Dorsey v. Gilbert, 11 G. & J. 87; Downin v. Sprecher, 35 Maryland, 474; Long v. Long, 62 Maryland, 33; Taylor v. Peabody Heights Co., 65 Maryland, 388.

The office of that proviso was this; after a sale through a Court of Chancery, to authorize the application of the proceeds of the sale, by the concurrent action of the Court of Chancery and the orphans' court, to such maintenance and education. In this way the act supplied a seeming defect in the then existing law whenever a case should arise where the infant's personal estate was insufficient for his support and education;

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but the instances are numerous which show with what caution the realty was allowed to be encroached upon, especially as its possession was a qualification to vote or to hold office; and until the act of 1785, c. 80, § 9, authorized the guardian to apply a tenth part of his ward's personal estate, annually, for his education, no part of the principal of the personalty could be so used. The orphans' courts were generally presided over by laymen presumably unqualified to supervise, especially without specific statutory directions, the often complicated proceedings, as practised in a Court of Chancery, for the sale of real estate and the protection of all the rights and interests involved. There are numerous Maryland decisions showing how jealously the orphans' court was excluded from control over, or interference with, real estate. Stewart v. Patterson, 8 Gill, 46; Hayden v. Burch, 9 Gill, 79.

It is argued, in avoidance of the fact that the practice pursued in this case was never adopted in Maryland, that after the organization of the courts in the District of Columbia they were not bound to follow the Maryland courts in their construction of the act in question. We do not deny that the District judiciary is independent of that of Maryland. We only maintain that the adjudications and practice in the State where the act was originally passed, and where it remained in force, certainly until 1816, and from which it was, in 1801, adopted as the law of this District, are most persuasive, if not conclusive, arguments in favor of the construction which they have placed upon the act. Metropolitan Railroad v. Moore, 121 U. S. 558.

We deem it wholly irrelevant to the argument what may have been the opinion or practice upon this question in any other jurisdiction than that of Maryland, as the only point in the argument is to shed light upon the intention of the legis lative body which passed the act under consideration, and that intention must be judged by the occasion supposed then and there to exist for its passage.

Before closing this point of our argument we would call attention to section 16 of sub-chapter 12 of the act of 1798, which provides that "nothing in this act contained shall be