Garretson he supposed would fully relieve the complainant, with- Nov. 1802. out further loss to the defendant, than that relief required. He therefore decreed a conveyance by the defendant of the land in question. To administer justice with mercy, the chancellor has constantly considered the great duty of a judge. Every judge, on his entrance into office, should be enjoined to do this, and much is to be lamented, if the conduct of the persons to whom that mercy is intended to be shewn, shall dictate the necessity of administering strict justice, without regard to mercy. If they cannot consist with each other there is no doubt that the latter must yield to the former. By the appeal of the defendant, the complainant had long been excluded from the benefit of the decree. The defendant was duly served with copy of it, under seal, to which was annexed a copy of the affirmance, and on proof to the satisfaction of the chancellor, of the said service, and of the defendant's neglect, and even refusal to obey, an attachment for contempt was, at the complainant's instance, issued against him. But the complainant, by his counsel, Soon after consented to waive, or suspend, the benefit of the attachment, until the court of appeals should be applied to by the defendant at its next sitting, to reinstate the cause and decide on argument. By so doing he granted no inconsiderable indulgence to the defendant. But the defendant, disappointed in his expectation by the court of appeals, conceives that the legislature will reinstate the cause, and, on his petition to the chancellor, is absolutely discharged from the attachment, on the express proviso that another attachment, or other process, shall hereafter issue, &c. &c. The legislature has indeed passed an act for reinstating all causes which went off the docket of the court of appeals undecided, but has made no particular provision, relative to this cause. It is however alleged, that notwithstanding an affirmance of the chancellor's decree in the usual way, the cause has not been decided by the judges of appeals; that they alone can determine whether or not there has been a VOL. I. 49 VS. Cole: Nov. 1802. decision, and that this court ought not to proceed until the decision shall have been obtained. Garretson 58. Cele. The chancellor will not presume to assert what that decision would or may be. He cannot be absolutely certain, that that honourable body will not say, that in a case where they have affirmed the chancellor's decree they have not decided the cause. But when the chancellor is applied to, as for a matter of common right, for process to enforce his decree, he is to be satisfied that there is just cause for refusing the process. He is otherwise to give his order for its issuing. The mere suggestion that the court of appeals may decide that a cause, in which they have affirmed a decree, has gone off undecided, is by no means, in his opinion, a reason for refusing the pro cess. The only question, which the chancellor has now to decide is, what is the proper process for giving the complainant the full benefit of the decree? That another attachment might issue, the chancellor, under the circumstances of the case herein before stated, entertains not the least doubt, but it certainly is not the best process for the complainant's purpose. The defendant's counsel may be right in his idea, that the decree is in law equivalent to a conveyance, and if so there is no need of compelling a conveyance, nor would a conveyance only render the complainant full justice. However the chancellor is satisfied, that the complainant was entitled to process to enforce the Conveyance, and that the attachment which issued, was strictly proper, and reasonable. For although Garretson's deed might not be absolutely necessary for completing Cole's legal title, it was certainly eligible, in order that all doubts, which might be entertamed by Cole and others, unlearned in the law, might be dissipated, and the opinion in favour of his title established. Now if the defendant was really satisfied that the decree was sufficient to invest Cole with the legal title, why should he refuse to execute the tendered deed? With what colour does he complain of the hardship to which the attachment subjected him. It is the first time perhaps that a man in such a way has dared to complain of oppression, in being required to do that, which in his own opinion was to have no operation to his prejudice, and which had been directed by the adjudication of a court of justice. If there be oppression it is by the decree, and not by the complainant's taking out under the chancellor's order process to enforce it. Had this court decreed a vacation of the patent instead of a conveyance of part of the Jand it contained, there would have been no ground for this complaint. The process or writ, which will best serve the complainant, is an injunction to deliver possession. After much deliberation on the subject, and examination of the books, it appears to the chancellor proper to be granted. Here has been a decree for vesting a legal title in the complainant by a conveyance from the defendant, whose neglect to perform the decree (even if it had not been served upon him) under the act of 1785, has rendered the decree equivalent to a conveyance. The complainant's title then is here established, and therefore he must be supposed in conscience and equi, ty entitled to the possession. An injunction for possession is not a new thing in a court of equity. It has long been used in England; it is directed in certain cases by the aforesaid act of assembly; and it would disgrace, our laws and administration of justice, if, after a title to land has been established by the adjudication of a court, there could be no way of obtaining possession, but after obtaining judgment in ejectment. On the whole it is' adjudged, ordered and decreed, that the defendant Job Garretson, having neglected to execute the deed by the original decree in this cause directed, the said decree hath operated as the said deed would have operated, to convey unto the complainant Richard Cole, and his heirs, the land thereby directed to be conveyed; that the defendant Job Garretson deliver possession of the said land to the said complainant, and that an injunction issue from this Nov. 1802. Garretson vs. Cole: Nov. 1802. court, directing the said defendant to deliver the said land to the said complainant." Garretson VS. Cole. Injunction accordingly issued as follows, viz. "MaWrit of Injune ryland, sc. The State of Maryland to Job Garretson, tion from the court of chancery compel the defen. of Baltimore county, and every and all other person dant to deliver possession of lands and persons whatsoever, who are in possession of all to the complain decree, &c. ant, pursuant to a or any part of that part of the tract or parcel of land, situate in the county aforesaid, called The Silent Cyphers of Africa, or The Silent Zephyrs of Africa, which is contained within the lines of a tract of land called Cole's Discovery. Whereas it hath been represented to the court of chancery, in a cause wherein Richard Cole is complainant, and you, the said Job Garretson, are defendant, that by the original decree in the cause passed on, &c. it was decreed that, &c. and that affidavit was afterwards made to the satisfaction of the chancellor, of the service of a copy of the said original decree, under the great seal of the state, upon you the said Garretson, and of your refusal and neglect to obey, fulfil, and perform the said decree; and that by a subsequent decree or order made in the said cause on the, &c. it was adjudged, ordered and decreed, that you the said Garretson, having neglected to execute the deed by the said original decree directed, the said decrce hath operated, as the said deed would have operated, to convey unto the said complainant, Richard Cole, and his heirs, the land thereby directed to be conveyed, and that you the said Garretson should deliver possession of the said land to the said complainant, and that an injunction issue against you the said Garretson, to enjoin you to deliver possession of the said land to the said complainant; and the matters stated in the said representation being all just and true, Therefore, in consideration of the premises, you the said Job Garretson, your servants, slaves, agents, and all persons assisting you, and every and all other person or persons in possession of the said land, are strictly enjoined and commanded, that you, each and every of you, do deliver the possession of the said land and premises, and of every part and parcel thereof, to the said complainant Richard Cole, pursuant to the said decree; and that you cease from any further molesta tion of the said Richard Cole, in the quiet possession of the said land. Hereof fail not at your peril. Witness," &c. On the 7th of March 1800, Cole, by his petition to the chancellor, represented, that on the 4th inst. be caused the injunction heretofore issued in this cause, for delivery of possession of the land specified in the said decree, to be served on the defendant Garretson, and on a certain T. S. a tenant in possession of part of the said land, as by the annexed affidavit appeared. That the said Garretson and T. S. both refused to comply with and obey the said injunction. He prayed that a commission or writ might issue to the sheriff of Baltimore county, to put the petitioner in possession of the said land, pursuant to the directions of the said decree and injunction, &c. Writ of habere facias possessionem from the court of chancery, after a refusal by the de fendant to comply with a writ of in ing him to deliver to the complain HANSON, Chancellor, on the 15th of March 1800, ordered that a writ or commission issue as prayed. Habere facias possessionem accordingly issued as follows, viz. Maryland, sc. The State of Maryland to the Sheriff of Baltimore county, Greeting. Whereas by the original decree passed in the court of junction requir chancery on, &c. in a cause wherein R. C. is complain- possession of lands ant, and J. G. is defendant, it was decreed, &c. And ant. whereas by a subsequent decree or order, made and passed in the said cause on the, &c. it was adjudged, &c. And whereas according to the decrees aforesaid, and in conformity therewith, on the, &c. an injunction did issue directed to the said J. G. his servants, slaves, agents, and all persons assisting him, and every and all other person or persons in possession of the said land, commanding that he the said J. G. and all and every person or persons aforesaid, should deliver the possession of the said land and premises, and every part and parcel thereof, to the complainant R. C. and that he the said J. G. should cease from any further molestation of the said R. C. in the quiet possession of the said land: And whereas it hath been represented to the said court of chancery, that on the 4th of March instant, at the county aforesaid, a true copy of the injunction so as aforesaid issued was served on and de |