Opinion
(March Term, 1797.)
In a caveat a verdict was found against the plaintiff, which was confirmed in the county court, before which time, however, the plaintiff had obtained a grant from the State for the land; and now, in the Superior Court, it was held that the grant could not be impeached at law, but as the defendant appeared to have had the justice of the case on his side, he shall have the costs of the caveat.
CAVEAT. Upon the trial the jury found for the party opposed to Mr. Cupples, which verdict was confirmed by the county court; before which time Mr. Cupples, for his ward, had obtained a grant from the Secretary's office; and the verdict and proceedings of the county court were moved into this Court.
There have been so many decisions that a grant, although irregularly obtained, is valid in law, that we think ourselves bound by them at present, although we cannot subscribe to the reasoning of them. Of course, it is useless now to consider whether these objections to the verdict are valid or not. However, with respect to costs, it is necessary to say something. There can be no doubt but in point of equity Mr. Cupples should pay them. There has been the verdict of a jury against him, and that verdict confirmed by the county court. Upon argument he has caused an abatement of the suit, like that partial abatement which sometimes happens in case of the death, destruction, or ceasing of the principal thing in dispute, so that the Court cannot give judgment for it, as where an action is brought against tenant per autre vie, and cestui qui vie dies, demandant may proceed for damages for detention; in ejectment for lands leased, if the lease expires before a decision, plaintiff may proceed for damages and costs. Here, before the suit is decided, one of the parties puts an end to it by removing (457) out of the Court's power the thing in controversy. The Court cannot give judgment upon the merits of the dispute, or for the principal; but the party may proceed for the accessory.
There was judgment for costs.
NOTE. — As to the grant's being unimpeached at law, see Reynolds v. Flinn, ante, 106.