Opinion
AUGUST TERM, 1796.
Lee and Ingersoll, in objection to the request, stated, that, from the nature of the cause, delay would be worse to the Defendant in error, than a decision adverse to his claim; that the Plaintiff ought always to be ready for trial; that there had been sufficient notice of Mr. Campbell's death, for engaging the assistance of other counsel; that the case depended entirely on the record, might yet be considered by counsel, so as to obtain a decision during this court, and that it had already been postponed one term, at the instance of the Plaintiff in error.
BY order of the court, a letter from the Plaintiff in error, dated the 29th of July, 1796, and directed to the Clerk, was read. The letter stated, "that the Plaintiff had employed Mr. Campbell, of Virginia, to argue the cause; that on the 25th of July, he was informed, that Mr. Campbell had died in Richmond, on the 18th of the fame month; and that, being left without counsel, in consequence of this event, he prayed the cause might be continued till next term."
But, BY THE COURT: — In all questions of this nature, we must be governed by a found discretion; in order to prevent, on the one hand, an unnecessary procrastination, and, on the other hand, to avoid an injurious precipitation of trials. In the present instance, we think there is a sufficient foundation laid before us, to justify our granting a continuance 'till the next Term. If the cause were now to be taken up, it must be heard and decided ex parte. It is true, that counsel might even at this time be employed, so as to admit, perhaps, of an argument before the court rises; but it is reasonable, that in a cause of such magnitude, the counsel should have an opportunity to investigate the principles, and to consider the authorities connected with it, out of term, and unencumbered by the pressure of the current business of the court.
The Attorney General stated the point in controversy to arise on these facts: Lord Fairfax was a citizen of Virginia, and died in the year Page 306 1780; having made a will by which he devised certain lands in that state, to the Defendant in error, who then was, and ever has been, a British subject, resident in Great Britain. The question is, whether being thus an alien, the Defendant in error can take and hold the lands by devise? And, it will be contended, that his title is completely protected by the Treaty of Peace, concluded between the United States and Great Britain, in the year 1783.
CHASE, Justice: I recollect, that in Harrison's case, a decision in favor of such a devisee's title was given, by a court in Maryland. It is a matter, however, of great moment; and ought to be deliberately and finally settled.
Let the Cause be continued.