ADM'R.

BEATTY's adopted as the law of that part of the district of ColumADM'RS. bia in which the land lies, the title has relation to the v. return of the certificate of survey and payment of the BURNES's purchase money to the state, if the original warrant of survey was general-but if it was a special warrant, the title relates to the date of the warrant. That is to say, in either case the title relates to that act of the party which appropriates and locates a particular tract of land under a warrant of survey. Beatty had two warrants. The first was a special warrant for 80 acres, and was dated the 22d of April, 1791, before the statute of Maryland of 1791, which ceded the territory of Columbia to the United States. The other warrant was for 6 arces, and was dated the 26th of March, 1792. A special warrant contains the name of the county in which it is to be executed, and also such a location, or description of the land intended to be surveyed, as the party directs. It binds and secures the land, therein described, from the operation of other warrants, but it may be located any where else. A common warrant is for the number of acres required, "not formerly surveyed for, nor cultivated by any person," and is directed to any surveyor legally required. Kilty's Landholder's Assistant, 468.

Beatty's title relates (if not to the date of the first warrant) to the date of the return of the certificate of survey, and payment of the purchase money which was on the 16th of April, 1792..

Nothing but the form of a grant was necessary to complete the title before congress assumed the jurisdic

tion.

But it is contended; that the state of Maryland, by the 2d section of the act of Nov. 1791, ch. 45, ceded to the United States the land in question. That section is as follows: "Be it enacted," &c. "that all that part of "the said territory, called Columbia, which lies within

the limits of this state, shall be, and the same is here"by acknowledged to be, forever ceded and relinquish"ed to the congress and government of the United “States, in full and absolute right and exclusive juris"diction, as well of soil, as of persons residing, or to "reside, thereon, pursuant to the tenor and effect of

"the eight section of the first article of the constitution BEATTY'S "of government of the United States; provided that ADM'RS. "nothing herein contained shall be so construed to vest v: "in the United States any right of property in the soil, BURNES's "as to affect the rights of individuals therein, other ADMʼR. "wise than the same shall or may be transferred by “such individuals to the United States; and provided "also that the jurisdiction of the laws of this state, "over the persons and property of individuals residing within the limits of the cession aforesaid, shall not "cease or determine until congress shall by law provide "for the government thereof, under their jurisdiction, ❝in manner provided by the article of the constitution before recited."

This section did not transfer to the United States the vacant lands in the district of Columbia.

The 8th section of the 1st article of the constitution of the United States only gave congress power "to ex"ercise exclusive legislation over such district (not ex"ceeding 10 miles square) as may, by cession of par❝ticular states, and the acceptance of congress, become "the seat of the government of the United States." It did not authorize congress to accept the right of soil. The act of Maryland does not use words of conveyance of soil. They purport only a cession of jurisdiction. "Ceded and relinquished" are not words of grant. If they conveyed the soil they conveyed the persons also, for the same words are applied to them as to the soil. The legislature of Maryland were not competent to convey the soil, and it is doubtful whether they could transfer the jurisdiction. A title to vacant lands in this part of the district could only be attained by the regular proceedings in the land office of Maryland.

2. As to the statute of limitations.

The action of assumpsit given by the 5th section of the act of Nov. 1791, c. 45, is not to be considered as within the clause of the statute of limitations applicable to assumpsits. It purports to be a substitute for an action of ejectment, which is limited to 20, not to 3 years. It is evident that the object of the legislature was merely to protect the possession, not to take away the right.

BEATTY'S It is therefore natural to suppose that they intended ADM'RS. that every person who could maintain ejectment should

v. be entitled to maintain this action of assumpsit which BURNES's was given in lieu of it, and only given that the judgADM'R. ment might affect the vendor and not the vendee; and that the Plaintiff should recover the price and not the land itself. The statute applied to conveyances and sales then already made as well as to conveyances and sales thereafter to be made. Suppose a sale made more than three years before the statute. The legislature did not surely intend to give a barred remedy in the place of an effective one. An action of debt given by statute for an escape is not barred by the statute of limitations.

But this is a case of trust, and trusts are not within the statute of limitations. Burnes received the money for the use of Beatty. In a case of trust, the statute does not begin to run till a demand is made. On this point there is a case of money received by an attorney for his client; and another of fees received for a judge by his clerk. We could not prevent Burnes from receiving the money. The law, therefore, makes him our trustee.

JONES, contra.

It is said that the legislature of Maryland was not competent to convey the soil, and that congress had no power to accept it.

Exclusive legislation comprehends all the rights over the territory and inhabitants which the state of Maryland had. If, therefore, the authority rested upon those words alone, the right to accept a cession of the soil would be implied. The constitution of the United States requires a cession of territory before congress could exercise exclusive legislation. The constitution of Maryland does not limit the mode in which the state shall grant its vacant lands. It is competent to do it by a legislative act as well as by the intervention of the land office. But the constitution of the United States is paramount to the constitution of Maryland as to the cession of the district of ten miles square. It authorizes particular states to cede as well as Congress to accept.

ADM'R.

The 2d section of the act of Maryland, 1791, c. 45, BEATTY'S has sufficient words to pass the right of soil as well as ADM❜RS of jurisdiction. It declares that all that part of the 12. territory, called Columbia, which lies within the limits BURNES'S of this state shall be, and the same is hereby acknowledged to be, forever ceded and relinquished to the congress and government of the United States, in full and absolute right" "of soil," and "full and absolute" "exclusive jurisdiction"" of persons residing," &c. with a proviso that the right of soil should not so vest in the United States as to affect the rights of individuals therein. This implies an intention that the right of soil should vest in the United States wherever the rights of individuals should not be affected thereby. It is not only clear, therefore, that the state was competent to convey, and has used sufficient words of conveyance; but it is equally clear that it was its intention to convey, and that it has conveyed to the United States all its lands which were vacant at the date of the act, (19th December, 1791.) It follows, therefore, that on the 3d of April, 1792, the date of the survey, the state of Maryland had no vacant lands in the district of Columbia, liable to be surveyed under the warrant.

The act of 1791 gives the action only to a person whose title then existed, (19th Dec. 1791.) Beatty's title relates back no farther than the 16th of April, 1792, the date of the return of the certificate of survey, and the payment of the money to the state.

2. As to the statute of limitations. We admit that when a statute gives an entire new cause of action, it may not be barred by the act of limitations. But this statute only gives a new form of remedy upon as old cause of action. The declaration does not purport to be founded on the statute. It contains only a general count for money had and received to the Plaintiff's use.

As to a trust not being within the act of limitations, the cases on that point are all in equity. But here there was no trust. The parties were adverse Claimants.

F. S. KEY, in reply.

1. The state of Maryland had sovereign rights, and VOL. VIII. 14

BEATTY's private rights. She meant to grant only her sovereign ADM'RS. rights. She presumed that all the soil had been grant

2. ed to individuals, and that there was no vacant land in BURNES's the district. The terms she used are appropriate to a ADM'R. transfer of jurisdiction only.

The 3d section of the act of 1791 is conclusive that she did not mean to convey her private rights. By that section the lots in Carrollsburgh and Hamburgh, (small villages included within the lines of the city of Washington) which were the property of the state, were subjected to the same terms of trust as the other lots in the city. That is to say, one half thereof was to be reconveyed to the state, and the other half to be sold for the use of the public.

The constitution of Maryland speaks of the land office, and thereby continues all the rules and laws of that office. No lands could pass from the state but through the forms of the land office.

Beatty's title relates back at least as far as the 16th of April, 1792. But the special warrant was prior to the act of 1791, and the proviso of that statute saves all the rights of individuals, so that if Beatty had a right to locate his warrant in the city before the date of the act, that act did not deprive him of that right, He had a contrary title then existing. But if he had not, the statute had, and he claims as her assignee.

The statute did not mean to exclude the heirs and assigns of those who then had title from the benefit of the remedy provided.

2. As to the statute of limitations. Burnes received the money as trustee. When he received it he knew of Beatty's claim. 1 Saund. 37, 383. Bac. Ab. 472.

PINKNEY, as amicus curio,

Stated that he had never heard of the relation of title being carried farther back than to the certificate of survey; even on a special warrant: for, although special, may be located any where.

it