Jars, of which complainant by his own shewing has paid no part, altho he has had time and means to have done so. That said estate, would remain in the hands of defendant as Escheator general, subject to all legal and equitable claims against it, and that he is ready and willing to pay all just claims against said estate, which shall be legally prefered against it. Admits that, as his duty was, he did institute proceedings as stated in the bill to render such escheated property available to the state, and that by an inquest dated 24th of October, 1823, the estate of the said Adam Rum, both real and personal, was declared to be escheated in due form of law. Expressly denies that the estate of the said Adam Rum is indebted to complainant between 1900 and 2000 dollars, as charged in the said bill; and also denies that the said estate is indebted, to complainant any thing, upon a fair and just settlement of accounts; states that at the death of the said Adam Rum, he may have been indebted to complainant in some small sum, but this is not admitted, but proof required thereof, and alleges, that ever since the date of his administration, the said complainant has been in possession of the entire estate of the decedent, both real and personal, using and enjoying it, and that he has never accounted to this defendant or to any one else, for the rents issues and profits of said estate. That complainant made on the plantation last year seven bales of cotton not accounted for; has used the pork and stock of said estate for his own benefit, and never accounted for the same, and moreover, hath suffered the personal estate to be greatly impaired contrary to his duty as a faithful trustee, and that though twelve months and more had expired since he assumed the administration, he hath not yet caused his accounts to be settled by the court of probate, or even presented them for allowance, manifesting there by in all his conduct, a disposition to produce delays, and to defraud the said estate.

By appraisement and inventory, made an exhibit in complainants bill, it appears that the personal estate of the said Adam Rum, amounted to 6,772 dollars, 42 cents, which amount is determined as its value, by the inquest, made an exhibit in the answer, which also returned that decedent died siezed of 510 acres of land in fee simple, yielding a clear yearly issue of 120 dollars, and that the said personal estate is of the clear yearly value of 580 dollars.

We have examined the statutes with great care and reflection, and find the case pregnant with difficulties, and shall not flatter ourselves that in the opinion we shall give, it will be our good fortune to satisfy the mind of all parties. On the case made by bill and answer, the later swearing off the equity charged in the former, we are of opinion, that the decretal order of the honorable the superior court of chancery, so far as it directed a dissolution of the injunction, was correct, and should be affirmed by us if indeed the chancellor had jurisdiction, and so far as said order directed a dismissal of plaintiff's bill, it must be vindicated, if at all, either on the ground of a want of jurisdiction, or of a construction of the several acts "pari materia" in regard to this subject, each of which grounds we will examine. Though, the proposition, that an inferior court, whose decisions are supervised and may be reversed by the supreme court, should nevertheless controll the proceedings of this higher court by its mandatory fiats, strikes the mind with some degree of novelty and inconsistency, yet when we consider of the organization of our judicial system, and the controling powers of a court of chancery over proceedings at law, however sanctioned by the highest tribunals, we must admit the necessity, and in reference to the present system, the propriety of such interposition and controul.— Neither do we think there is any thing in the argument, which would distinguish original proceedings, on the law side, before the supreme court, and in the case at bar, such argument would go to elevate the doings of the ministerial officers of this court, in relation to escheats, (for the matter is chiefly conducted by them) above the solemn and deliberate adjudications of this court, upon full argument and consultation. We are therefore inclined to the opinion, that the jurisdiction belongs to the chancery court to controul these proceedings at law, on equitable grounds, in the exercise of which power, if it errs, its acts are reversible by this court, not as a court of law, but as having the highest chancery supervising powers. So far from impeaching the legality of what has been done, a release of errors, either express, or implied, admits and sanctions the proceedings at law, which nevertheless, are superseded on account of reasons moving the conscience of the chancellor to the belief that the complainant is entitled to relief, which a court of law could not afford him.

The act establishing the orphans court system, passed 26th of Novem

ber, 1821, which directs the mode of taking out administration on intestates estates, and descent and distribution thereof. The act establishing a literary fund, passed the same day, and the act to reduce into one the laws relating to escheats, passed on the 13th June, 1822. This reference to dates is made, in order to shew, that the provisions of the two first, were known to the legislature, at the time they passed the last, and that consequently, in case of conflict, the latter should prevail, according to the maxim adopted in regard to the construction of laws. "Leges, posteriores priores contrarias abrogant." They being however in some respects "pari materia" are to be reconciled as far as practicable, and receive the most harmonious construction possible. It will be no infraction of this rule, to admit, if such be the fact, that the last act has made special provisions, excepting particular cases out of the general provisions contained in the first and second.

Under these various laws the true construction would seem to be, that the escheator general is entitled to the custody of all property real and personal of a deceased person dying here without heirs. The debts of the deceased are to be collected by process against the escheator general, by each creditor, and an administrator is not entitled to the custody of the property. This being the view of the law entertained by a majority of the court, the - decree of the chancellor dissolving the injunction must be affirmed.

Judge Ellis concurred with Chief Justice Hampton.
Judge Turner dissented.

HARRISON & GIBSON vs. CALEB STOWERS.

APPEAL FROM A DECREE OF THE SUPERIOR COURT OF CHANCERY FOR THE WESTERN DISTRICT.

Where B is in possession of land and A represents it as embraced within the survey of a tract belonging to A, and threatens to oust B if he does not purchase A's right which B accordingly does for cash, if it afterwards is made manifest that the land is not embraced by A's claim, a court of chancery will rescind the contract and decree a restoration of the purchase money, though it is not proved that A was cognizant of the fact that the land was not embraced by his claim.

A contract may be rescinded on proof of mutual error, as well as in cases of proof of fraud,

OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS. The complainant alleges in his bill-that some time in the year eighteen hundred and sixteen, he resided on a plantation on Pine Ridge, in the county of Adams-and Nathaniel Harrison, and Simeon Gibson, being then seized or pretended to be seized of a tract of land adjoining the complainant, under and by virtue of a donation from the Government of the United States to the representatives of Abner Pipes, and that said Harrison made repeated applications to him to purchase said tract, or part thereof, and for the purpose of alarming and harrassing the complainant, repeatedly represented to him, that a part of his plantation upon which several of his improvements were situated, as embraced within the limits of said donation, and often threatened to sell the premises to some other person, unless said complainant would immediately consent to purchase the same. It is further stated, that complainant being repeatedly harrassed by continued applications from Harrison, and believing at the time his house lay within the limits of the donation from the United States to the legal representatives of Abner Pipes, and fearing if the land was sold to any other person, he would be turned out of his possession and improvements, at last consented to purchase a part of said tract of land from Harrison and Gibson, for which he agreed to give the sum of four hundred dollars --and accordingly, on the 7th of December, 1818, by indenture, Harrison and Gibson conveyed to the complainant, one hundred and thirty acres, more or less, for and in consideration of the sum of four hundred dolars, the receipt of which is acknowledged. Complainant further states, before concluding the purchase aforesaid, he frequently went to the Register's office, in Washington, to ascertain whether the land upon which he resided was vacant or not-and uniformly found the same represented on the office map as belonging to the representatives of Abner Pipes. The complainant further states, that after he had been in possession of the land purchased as aforesaid, he discovered the same was advertised for public sale, under the authorities of the United States, and being alarmed at his situation, he repaired to the Land Office a second time, and found that the donation of A. Pipes, under which Harrison and Gibson claimed, had been erroneously laid down in the Register's office-and that the 130 acres purchased as aforesaid, was not included in the donation to Pipes; but, be

longed to the United States, and that the original survey of said donation had been found, by which the error was corrected. The complainant expressly charges in his bill, that Harrison and Gibson were well acquainted with the real location of A. Pipes' donation, and knew at the time of the sale and conveyance aforesaid, that it did not extend to the plantation and improvements of Stowers. It is further stated-that in July, 1821, the land purchased by complainant, from Harrison and Gibson, was set up at public sale in the town of Washington, under the authority of the Government of the United States, and believing that no title vested under the conveyance from Harrison and Gibson to Stowers, he became the purchaser, for the sum of two hundred dollars, and shortly after the sale and purchase from the United States, notice was given to Harrison and Gibson and demand made of them, to refund the amount of the purchase money, or compensate the complainant by an allotment of land out of the donation they held of the representatives of Pipes. It was expressly understood by the parties, that the tract of land sold was a part of Pipes' donation, when in fact it appears from the survey to lie much lower down. The bill concludes with a prayer for specific and general relief.

The answer of the defendant admits all the material allegations set forth in complainant's bill-except as to the knowledge of defendant about the real situation of the donation. This case coming on to be heard before the Chancellor, on the second Monday in January, 1824, and the case having been argued by counsel, and mature deliberation being had thereon-It was decreed, that the contract between the parties be annulled, and the deed of conveyance be delivered up to be cancelled, and that defendants pay back the amount of purchase money, with interest, and six per cent damages, and costs of suit.

An appeal was taken from the decree of the Chancellor to this court. From the bill, answer, and exhibits in this case, I cannot conceive how the Chancellor could have given a different decree, without doing manifest injustice to the complainant. "The court having equal jurisdiction to relieve in respect of plain mistake in contracts in writing, as against frauds in contracts." Suppose an instrument of writing in the nature of a contract was executed, contrary to the intention of all parties,-would not this court upon a proper shewing afford relief, even in the ab