1 of 38 DOCUMENTS 

PATTERSON vs. MARYLAND INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 71; 1810 Md. LEXIS 15 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. An action on the case was brought by the appellant, (the assured,) against the appellees, (the assurers,) on a policy of insurance, dated the 23d of October 1795, whereby the assured caused himself to be insured, lost or not lost, at and from Baltimore to the coast of Africa, with liberty of trading on the said coast, and at and from thence back to Baltimore again, upon the body, tackle, apparel, and other furniture of the schooner called The Industry. The declaration contained four counts--The first on a Barratry by the master and marines, whereby the vessel was wholly lost to the assured. The second on a Barratry by the master on the 1st January 1796, &c. The third for a capture by pirates, &c. The fourth for a capture by persons unknown, &c. Plea, the general issue. At the trial the plaintiff, (now appellant,) read in evidence to the jury the policy of insurance, dated the 23d of October 1795. He also gave in evidence, that at the time of making the policy, he was and still is a citizen of the United States, and then was the sole owner of the schooner The Industry, mentioned in the policy, an American vessel, regularly documented as such; and [**2]  that the said schooner sailed from the port of Baltimore in good safety, on the voyage mentioned and described in the policy, on or about the 23d of October 1795, with Nathaniel A. Ogden on board as master, and Thomas Buckner as mate, for the said voyage, and a certain Charles Leonard Le Baron as supercargo for the said voyage. That on the 23d of May 1796, the schooner The Industry returned to Baltimore, and was reported and entered at the custom-house there, by the plaintiff, as coming from Saint Bartholomew's in the West Indies. That the said master, mate and supercargo, arrived in the said schooner at the port of Baltimore, together with one Henry Hains and John Mannel, who left the port of Baltimore in the said vessel, as seamen, and returned in her as such, and who were the only seamen who sailed in the said schooner on the said voyage, and returned in her as aforesaid. He also gave in evidence, that Ogden and Buckner have been dead about two years, and that Hains and Mannel went from the port of Baltimore in the month of November in the year 1796, to the eastern shore of this state, and cannot now be found or heard of in the port of Baltimore. But offered no evidence to prove [**3]  that the said mariners and supercargo were dead, or that any summons issued for them to testify in this cause, or that any steps have been taken by the plaintiff, previous to the empannelling of the jury in this cause, to ascertain their present residence, or to procure the benefit of their testimony. He also gave in evidence, that on the 23d of May 1796, and until on and after the 26th day of the same month, Thomas Donaldson was a notary public, residing in the port of Baltimore, and duly authorised and commissioned. He also offered in evidence, that it is, and for more than twenty years last past, has been the usage and custom of merchants, insurers, and others dealing in and making insurance in the port of Baltimore, in cases where they have adjusted their losses without suit, to receive the protests of the captures of vessels insured, as evidence of the matters therein stated, when losses are claimed, and for insurers, when called on for payment of such losses, to require the said protests to be produced, or their nonproduction to be accounted for by the claimants, before such losses are adjusted or paid, and not to call in question the truth of the facts stated in such protests,  [**4]  unless some strong ground of suspicion should appear. He also gave in evidence, that it is usual in Baltimore for the captains of vessels arriving from other ports, to note their protests with a notary within twenty-four hours after their arrival respectively, which noting is done by informing the notary of the principal matters intended to be contained in such protests respectively, and intended to be thereby protested against. But that it is not deemed essential that such noting should be done within twenty-four hours as aforesaid, or within any other particular time, and that protests are never objected to by insurers, or others, for not being noted within twenty-four hours, or any other particular time, provided the said protests be noted or made within a reasonable time after arrival. And thereupon the plaintiff, to prove the several matters contained in his declaration in this cause alleged, produced a protest made in the port of Baltimore on the 26th of May 1796, by Ogden, Buckner, Hains and Mannel, by Thomas Donaldson before mentioned, and by him duly certified under his notarial seal, and recorded in his office, and offered to read the said protest to the jury, for the purposes [**5]  aforesaid, as the protest of the said master and mate. He also, for the purposes aforesaid, produced a protest made in the island of Saint Bartholomew's, in the West Indies, on the 26th day of March 1796, by Ogden, Buckner, Hains, and one John Cockeny, then a seaman on board of the schooner, before a notary public there, and duly certified by him under his notarial seal, and offered to read the last mentioned protest in evidence, for the purposes as aforesaid, as the protest of the master and mate. The defendants offered in evidence, that Ogden and Buckner, from the time of their arrival at the port of Baltimore, resided there for several years, and that the defendants had no knowledge of the protest of the 26th of May 1796, or of the matters therein contained, until and after the institution of this suit, and that the plaintiff, from the making of the policy of insurance, until the present day, hath constantly resided at Baltimore. The defendants objected to the reading of the protest of the 26th of May 1796, to the jury. And the court, (Nicholson, Ch. J. and Hollingsworth, A. J) sustained the objection. The plaintiff excepted; and the verdict and judgment being against him, he appealed [**6]  to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin and Harper, for the Appellant, contended, that as the master and mate were both dead, the protests made by them, and the seamen, ought to have been received in evidence upon common law principles, as the seamen were transient characters, and it was not known where they were to be found. They cited Peake's Evid. 14, 15; and Bryden vs. Taylor, 2 harr. & Johns. 396.

W. Dorsey, for the Appellees. The protest of a captain can only be read in evidence to invalidate his testimony; it is not evidence per se. He cited Peake's Evid. 74. Senat vs. Porter, 5 T. R. 158. Christian vs. Coombe, 2 Exp. Rep. 489. Ritchette vs. Stewart, 1 Dall. Rep. 317. Boyce vs. Moore, 2 Dall Rep. 196; and Walsh vs. Gilmor, (on appeal in this court.)

Curia adv. vult.  

JUDGES:
The cause was argued at the last term before CHASE, Ch. J. GANTT, and EARLE, J. CHASE, Ch. J. dissenting.  

OPINIONBY:
EARLE 

OPINION:

 [*74]  At the present term the opinion of the court was delivered by
EARLE, J. A voluntary affidavit ranks in equal grade with hearsay testimony in the scale of evidence, and in no case is received where better testimony can, from the nature of the case, be had.
The [**7]  protest of the captain was merely a voluntary affidavit, and a notary public, except in those cases where a protest by the lex mercutoria, as in cases of foreign bills, or by statute, as the act of 1785, ch. 38, statute 9 & 10 William III, ch. 17, 3 & 4 Ann, ch. 9, in case of damages on inland bills and notes, has no authority to take a protest. The point of view in which the authority of this officer is to be considered generally, relates to those commercial transactions occurring in one country which are to be proved in another, or in which foreigners are interested; and the office derives its existence from the courtesy of one nation to another; and where he is to do certain acts by statute, the authority is limited to its designated object.
At common law, the best evidence must be had the nature of the transaction admits of. This claim is founded on a loss at sea, in a trading voyage. The captain's protest, before a notary, is produced as evidence of the loss, and the transaction is of late occurrence. Part of the crew are stated to have been residents of the eastern shore, to have returned in the vessel, and to have remained for sometime after in Baltimore.  [**8]   Those persons were not searched for, and it does not appear that they had left the state, and could not be found. Therefore, as those persons cannot be presumed to be out of the reach of the process of the court, the plaintiff should have produced them, for they must be supposed to be equally cognizant of facts happening on board the vessel on her voyage.
Besides, a party is entitled to cross examine a witness, and it is a general rule, that without giving him an opportunity to do so, his deposition shall not be evidence. In this 

 [*75]  case there was no opportunity, and on that ground the protest was incompetent. It is true that in some few cases similar protests have been read in evidence, but it has been to impeach the testimony of the protesters, and not to dispense with their parol testimony, or that of others, or of other proof.
This protest is not to be considered as a deposition de bene esse. It differs in two essential particulars; for first, depositions de bene esse are taken by some court, or by an express authority derived therefrom, or under our acts of assembly to perpetuate evidence; and secondly, they are always taken upon notice given to the adverse [**9]  party, if practicable.
By the law of merchants, the captain must protest, on arriving at a port, against damages happening in a voyage thereto, but such protest is not evidence to charge the underwriters upon their policy. It is to protect the captain from his liability, and in such cases some others of the crew must join in the protest; and the reason is, that the captain may thus perpetuate that evidence which may be necessary to exonerate him from personal responsibility, as the crew, being persons of no fixed residence, and liable to more than ordinary casualties, their testimony is therefore more necessary to be taken, and is more liable to be lost.
As to using this protest as prima facie evidence only, it is equally as objectionable as if used as positive proof. For the purpose for which it was produced in this case, as in all others, throws the onus probandi upon the adverse person, and therefore, if allowed as evidence on that score, it established the cause of action unless contradicted. For prima facie evidence is sufficient, if not destroyed by other proof, as a note is prima facie evidence of a consideration, and throws the onus probandi on the opposite [**10]  party.
The court affirm the judgment of the court below, with costs to the appellees.  

DISSENTBY:
CHASE 

DISSENT:

CHASE, Ch. J. dissenting from the opinion of the court delivered the following opinion: The copy of a protest is not evidence per se; but under certain limitations and restrictions is admissible. It is evidence, if the captain, and those who signed it, and whose depositions are offered to be read, are dead, or out of the reach of the process of the 

 [*76]  court. It is evidence to impeach the credit of the captain, and those who have signed it, when examined in relation to the facts and circumstances detailed in it, without laying any foundation for introducing it, in the same manner that a deposition is evidence to impeach the credit of a witness when examined in court, by showing he is inconsistent, or has contradicted himself. The credit, the protest is entitled to, must be determined by the jury under all circumstances and the evidence in the case.
A deposition legally taken is not evidence per se, and cannot be admitted without showing the death of the deponent, or his not being amenable to the process of the court. This case is not distinguishable on principle from [**11]  the ordinary case of receiving depositions in evidence; for the protest is taken by a public officer authorised to take it, and whose office and authority are recognized by the courtesy of nations.
The usage of trade and general utility, from necessity, require the admission of this kind of testimony, subject to the restrictions already mentioned.
It would be to little purpose to allow of protests, in commercial transactions, to be made on oath before a notary public, and to be by him recorded, if copies of such protests cannot legally be received as evidence in those cases in which the persons who made the protests are dead, or not amenable to the process of the court.
Although the evidence of seafaring persons, and others, may be perpetuated in the manner the acts of assembly have prescribed, those provisions do not exclude this kind of testimony, but must be considered as supplying additional means of proof.
The office of notary is an office of public notoriety; and acting under the solemnity of an oath, his acts are recognized by the courtesy of nations, and considered as records, with the view of furnishing evidence in those cases to which his acts refer.
In this case it [**12]  is admitted by the counsel, that the protest was made in convenient time, and it appears to have been made at the proper place--the port of destination, and where the parties concerned in interest resided at the time.
It is proved in the case, that the captain and mate, whose testimony was objected to, were dead at the time.

 [*77]  This kind of proof is not conclusive, but is prima facie evidence, and may be counteracted and repelled by other testimony; and as the credit of it must be determined by the jury, I cannot see any inconveniencies attending the admission of it, equal to those which will result from its rejection. I think it is the safest way to allow it to go to the jury; and therefore am of opinion that the judgment of the court below ought to be reversed.  

2 of 38 DOCUMENTS 

M'EVOY, et al. vs. THE MAYOR, &c. OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 193; 1810 Md. LEXIS 42 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of debt, brought in the name of The Mayor and City Council of Baltimore, at the instance and for the use of The Trustees of the Roman Catholic Church, in the Town of Baltimore, against the defendants, (now appellants.) The facts as agreed upon were these: It is admitted that the bond stated in the declaration was duly executed by the defendants to the plaintiffs, on the 7th of December 1802, reciting, that "whereas the above bound James M'Evoy hath obtained from the mayor of the city of Baltimore a license of admission to use and execute the office and employment of a broker within the city of Baltimore. Now the condition of this obligation is such, that if the above bound James M'Evoy, do and shall well and faithfully execute and perform the office and employment of a broker, between party and party, without fraud, collusion, imposition, or any crafty or corrupt devices, and do and shall faithfully execute every trust committed to him as broker, then this obligation to be void," &c. The bond was thus endorsed: "Approved Decr. 7, 1802. Jas. Calhoun, Mayor," &c. It is admitted that the said James M'Evoy received the tickets expressed [**2]  in the following receipt, viz. "Balto. Sepr. 12, 1803. Recd. of Fras. Beeston, one hundred tickets to the Roman Catholic Cathedral Church Lottery, numbered from No. 10601 to 10700, both included; for which I promise to be accountable. James M'Evoy, Broker." That the said M'Evoy sold the said tickets before the 8th of October 1804, for the sum of $ 1000. That after the said tickets had thus been sold, the said James M'Evoy gave the following promissory note for the payment of the said sum of money. "$ 1000. Baltimore, Octo. 8, 1804. Thirty days after date, I promise to pay the Revd. Francis Beeston, or order, one thousand dollars, for value received. James M'Evoy." That at the time of receiving the said promissory note the said Francis Beeston, who was the agent of the said Trustees of the said Roman Catholic Church, gave to James M'Evoy a receipt for the said note, expressing that the said note, when paid, should be considered as a full payment of the money received for the said tickets; and that the said promissory note hath not been paid. The county court gave judgment for the plaintiffs. From that judgment the defendants appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder,  [**3]  for the Appellants, contended, that taking the promissory note released the bond entered into as broker. That it was an indulgence granted to the principal in the bond, by which the sureties were released. He also contended, that the act of 1796, ch. 68, incorporating the city of Baltimore, did not take in the case of brokers, so as to entitle any person to recover on their bonds.

Harper, for the Appellees.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*194]  JUDGMENT AFFIRMED.  

3 of 38 DOCUMENTS 

D'ANJOU & BALL vs. DEAGLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 206; 1811 Md. LEXIS 4 

June, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action on the case against the defendant, (now appellee,) as a common carrier of goods and chattels from Baltimore to Norfolk, for negligence, &c. The general issue was pleaded. At the trial the plaintiffs, (now appellants,) gave in evidence, that the defendant, on the 20th of April 1803, and before and afterwards, was the proprietor and owner of a packet or vessel, which he employed in carrying and transporting passengers and merchandise from the port of Baltimore to the port of Norfolk in Virginia, and thence back to Baltimore, for hire and reward. That the plaintiffs had directed J. and R. K. Lowry of Baltimore, to barter certain chairs of the plaintiffs for a bale of Madrass handkerchiefs of the value of $ 200, and to ship the same for their account and risk, on board the said packet, in order to be transported to Norfolk, and there delivered to the plaintiffs. That J. & R. K. Lowry, pursuant to the instructions of the plaintiffs, committed the bale of handkerchiefs to one Cannon, their clerk and assistant, with direction to put them on board the packet belonging to the defendant, in order that they might be carried to Norfolk, and [**2]  there delivered to the plaintiffs. That Cannon went on board the packet with the bale of handkerchiefs, and not finding the captain there, he delivered the same to a boy named Peter Florey, who was then in the employ of the defendant, and who was called cabin-boy of the vessel, but who was proved to have usually received small packages, or bundles of goods or merchandize, sent on board the vessel to be forwarded to Norfolk, when they were of a size sufficient to be stowed away in the cabin, and requested him to take particular care of the same, and that they belonged to the plaintiffs, to whom they were to be delivered on the arrival of the vessel at Norfolk. They also gave in evidence, that small packages of merchandize, which were intended to be sent to Norfolk in the vessel of the defendant, had been frequently committed to the care of Peter Florey, employed as aforesaid, in the presence and view of the defendant, and that he never countermanded such delivery, or in any way complained that the same was irregular. That the bale of handkerchiefs never was delivered to the plaintiffs. The defendant then gave in evidence, that the plaintiffs, finding that the handkerchiefs did not come [**3]  to hand, afterwards retained certain moneys of J. and R. K. Lowry, then in their hands, arising from the sale of a quantity of butter, consigned to the plaintiffs by J. and R. K. Lowry, to the amount of the price and value of the handkerchief, and as and for satisfaction and payment thereof. He also gave in evidence, that the recovery in this cause was to be for the use of J. and R. K. Lowry, and that they had ordered the suit in this behalf to be instituted and conducted. He then prayed the court to direct the jury, that if the jury should, from the evidence, be of opinion that the plaintiffs applied the proceeds of the butter, consigned to them by J. and R. K. Lowry, to satisfy and pay themselves for the handkerchiefs which were not delivered, and that J. and R. K. Lowry have assented to that act, then that the plaintiffs upon the record are not entitled to recover in this form of action. This opinion and direction the court [Nicholson, Ch. J. and Hollingsworth and Jones, A. J.] accordingly gave. The plaintiffs excepted; and the verdict and judgment being against them they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Winder, for the Appellants; and [**4]  by

Stephen, for the Appellee.  

JUDGES:
The cause was argued before POLK, BUCHANAN, and EARLE, J.  

OPINION:

 [*208]  JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

4 of 38 DOCUMENTS 

COCKEY'S Lessee vs. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 20; 1810 Md. LEXIS 6 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Ejectment for a tract of land called Franklin's Neglect and Cockey's Discovery, lying in Baltimore county. The defendant, (now appellee,) took defence on warrant, and plots were made.

1. The plaintiff at the trial gave in evidence the certificate and patent of a tract of land called Franklin's Neglect and Cockey's Discovery, surveyed on the 14th of January 1802, for, and granted to, John Cockey, the lessor of the plaintiff, on the 23rd of April 1803. He also gave in evidence that the said tract of land is truly located by him, as his claim and pretensions, on the plots. The defendant gave in evidence that the tracts of land called Gibson's Forest and Warner's Chance, for which she takes her defence, began, as located by her on the plots, and that the black letter A on the plots, is the termination of the third line of Lord Baltimore's manor. And also that for forty years now last past, Thomas Franklin, whose heir at law the defendant is, and those claiming under him, down to the defendant, to the present time, have been in the actual possession and occupation of parts of the said lands, as located on the plots, claiming the whole, and using [**2]  and cultivating the parts so located, and that no person, except Franklin, and those claiming under him, has ever been known to possess or claim any part of the lands until the lessor of the plaintiff caused the certificate of Franklin's Neglect and Cockey's Discovery to be made and returned. She also gave in evidence, that the lands on the west side of the said two tracts as located, were held and possessed by John Wilson, and that the lands on the east side of the said tracts, as so located, were held and possessed by the Boyce family, and that the lands lying between Boyce and Wilson's lands were always deemed and reputed to be the lands of Franklin. She also gave in evidence, by Thomas Jones, esquire, formerly collector of quit rents of the Lord Proprietary, for Baltimore county, that from the year 1769, till the expiration of the proprietary government in Maryland, during which period Jones was collector, Franklin paid quit rents for the said two tracts of land, under the names of Gibson's Ridge and Warner's Chance, and that there is a tract of land in Harford county, called Gibson's Ridge, containing 500 acres, for which quit rents were paid during the said period by other persons.  [**3]  She also read in evidence two receipts from Jones to Franklin for the quit rents, one for quit rents of Gibson's Ridge and Warner's Chance, containing 1056 acres, for one year ending the 29th of September 1771, and the other for one year ending the 29th of September 1774. She further gave in evidence the certificate of a tract of land called The Valley of Jehosaphat, lying in Baltimore county, upon the head of Gunpowder river, and upon the N side of the S branch of that river, surveyed on the 27th of September 1683, for Richard Smith, and containing 2500 acres. She also gave in evidence, that the three first lines of the last mentioned tract of land are truly located by her on the plots, and that the termination of the third line thereof is at the little black figure 1 on the plots; and that the true beginning of Warner's Chance is at the red letter A on the plots, and is near to a branch running into the little falls of Gunpowder, and that the said branch is truly located by her on the plots. She also gave in evidence a regular descent from Franklin to her, as his heir at law. She then offered to read in evidence, for the purpose of showing title to Gibson's Forest and Warner's Chance [**4]  in Franklin, under whom she claims, a deed from John Clark to Franklin, bearing date the 2d of August 1765, duly acknowledged according to law on the same day, and recorded among the land records of Baltimore county, on the 31st of October 1765, whereby, in consideration of £  375 current money, Clark conveyed to Franklin "all those two tracts or parcels of land lying in Baltimore county, between the north and south branches of Gunpowder river, the one called and known by the name of Gibson's Forest, originally, on or about the 20th day of October 1695, was surveyed for a certain Miles Gibson, beginning at a bounded red oak standing on the side of a hill near a run, supposed to have been bounded for the land of Richard Smith, and running thence north east sixty-six perches to the end of the south-west line of his Lordship's manor," &c. containing 720 acres. "The other tract called Warner's Chance originally, on or about the 17th of November 1710, was surveyed for a certain John Warner, for 336 acres, beginning at three bounded red oaks standing on a point near the head of a branch descending into the little falls of Gunpowder river, the said trees standing on the N W side of the said [**5]  branch, and runs thence," &c. She also offered to read in evidence a note or memorandum entered in the said records, under the record of the said deed, in page 14 of Liber B, No. P, viz. "See alienation receipt recorded in this book fol. 534;" which memorandum is written by way of interlineation, in a different ink, and a different handwriting from the record of the said deed, namely in the handwriting of John Beale Bordley, then clerk of Baltimore county court. She also offered to read in evidence the record of a receipt for the alienation fine on the said deed, which receipt is mentioned in the said memorandum, and is recorded among the land records aforesaid in Liber B, No. P, page 534, and is stated to be endorsed on the deed from Clark to Franklin as recorded in the said book in pages 10, &c. and is as follows, viz. "Received forty-two shillings and three pence sterling, for an alienation fine of the within mentioned two tracts of land, for the use of Lord Baltimore, by order of his Lordship's agent Edw. Lloyd, esquire.

John Boyd."

She also proved to the jury that John Boyd, by whom the said receipt purports to be signed, was, on the 2d of August 1765, and for sometime [**6]  afterwards, receiver of alienation fines in Baltimore county. But the plaintiff objects to the reading of the said deed and record of the said receipt; and the court, (Nicholson, Ch. J.) overruled the objection, and permitted the said deed and receipt to be read in evidence to the jury, which was accordingly done. The plaintiff excepted.

2. The defendant then, to show title in Franklin and those claiming under him, down to her the defendant, in and to Gibson's Forest and Warner's Chance, read in evidence a commission from Benjamin Tasker and Benjamin Young, registers and chief judges of the land office, to Thomas Jeanings, bearing date the 18th of May 1746, constituting and appointing him chief clerk of the land office. She also gave in evidence, that Jennings continued to hold and execute the office of clerk of the land office, under the said commission, until the time of his death, which took place some time in 1759. And also, to prove that some of the records of the land office have been lost, she gave in evidence, that original patents for land have been found in the state of which no record ever could be discovered in the land office, or elsewhere; and that in the year 1776 [**7]  or 1777, the records of the land office were removed from Annapolis to Upper Marlborough in PrinceGeorge's county, where they remained one year and upwards; and that there has been a tradition or report in the land office of the loss of some of its records prior to 1746. She also gave in evidence, that no certificates, warrants or patents, for the tracts of land called Gibson's Forest and Warner's Chance, or either of them, or of any tracts of either of those names, can be found among the records of the land office, now existing, where they have been repeatedly searched for, and that no such record books as Liber D D, No. 8, or Liber No. 28, do now exist or can be found among the records of the land office, or elsewhere. The defendant then produced two papers, purporting to be true copies from certain books of records in the land office, one called Liber D D. No. 8, and the other called Liber No. 28, certified by the said Jennings then clerk of the land office, under his hand as clerk thereof, of two certificates of surveys, one of Gibson's Forest, and the other of Warner's Chance, the first surveyed for Miles Gibson on the 20th of October 1695, and the latter surveyed for John Warner [**8]  on the 17th of November 1710, and describing each of those tracts as they are described in the deed from Clark to Franklin as herein before set forth. She also proved, by witnesses produced and sworn, who were well acquainted with the said Jennings, and with his signature, that the name Thomas Jennings, subscribed to the said papers, purporting to be copies of the certificates of Gibson's Forest and Warner's Chance, are the handwriting and signature of the said Jennings, and are also in the handwriting with other copies of land records and patents appearing to have been made and issued by the said Jennings while clerk as aforesaid; and she also gave in evidence, that while the said Jennings was clerk as aforesaid, another person of the name of Thomas Jennings was an assistant to him, and wrote for him in the said office; and she then produced a paper, purporting to be a true copy from a record book in the said office called Liber No. 28, of the certificate of Gibson's Forest, similar to the copy herein before mentioned. She also proved by witnesses produced and sworn, which witnesses were well acquainted with the said last mentioned Thomas Jennings, and with his signature and handwriting,  [**9]  that the last mentioned paper, and the signature thereto, are in the hand writing and signature of the last mentioned Jennings. She also gave in evidence, that John Lawson, one of the clerks of the land office, did sometimes, in his official certificates, style himself Register. She also gave in evidence, that the body of the last mentioned paper, purporting to be a copy of the certificate of Warner's Chance, is in the same hand writing with the body of some patents issued from the land office before the year 1760. The plaintiff then read in evidence certain entries from the proprietary debt books, for the years 1754 to 1771, inclusive, whereby it does not appear that the quit rents on Gibson's Forest and Warner's Chance were charged to Thomas Franklin on the said debt books. he also offered in evidence by John Brewer, that he was, and at present is, an assistant clerk to John Kilty, register of the land office, and bad for eleven years last past been clerk in the said office, acting for many years in said office as a clerk to John Callahan, the register thereof, and that he never heard or understood that any record book belonging to the said office had been lost or missing of late [**10]  years; he never heard or understood that any record book of said office had been lost during the revolutionary war, or at any period shortly before. That Mr. Callahan, now dead, informed him, that he had never seen in the office a reference to a book in the office, which he could not find; that seeing a record book of certificates in the office for a number which he could not find patents, he was sometimes times induced to believe a record book of patents might have been lost, but on the whole he thought no book was lost; and that the warrants are all recorded in different books from the books in which the certificates and grants are recorded; and he never heard, nor from many years examination of the records has he any reason to believe, that any record book of warrants was lost. The plaintiff also offered in evidence the certificate and grant of Franklin's Delight and Ruth's Garden, surveyed for Thomas Franklin on the 1st of October 1729, lying in the fork of Gunpowder river, and on the N side of the S branch of said river, on the head of a branch called the Water Fall Branch, &c. and that they were truly located on the plots as located by the defendant; and also that the grantee [**11]  was the same person who is grantee in the deed from Clark to Franklin. Also the certificate of the tract of land called Gibson's Ridge, surveyed the 19th of September 1683, for Miles Gibson, lying on the S W branch of Bush River; and proved by a witness sworn, aged 61 years, that he has been well acquainted with the last mentioned tract of land for 37 years, and that no person of the name of Franklin has held or possessed any part of it during that time. That before 1767 the whole of the said land was possessed by Thomas Bond, &c. who were and had been in possession thereof for 45 years and upwards, and held and claimed the same under purchases from Gibson. That the said land lies now in Harford county, and about 45 miles from where Franklin lived. The defendant then offered to read in evidence the said three papers, (copies of the certificates of Gibson's Forest and Warner's Chance,) to support her title to the land for which she takes defence. To the reading of the said three papers to the jury the plaintiff objected. But the court did permit the said certificates to be read to the jury, to be determined by them whether they were or were not genuine. The plaintiff excepted.

3.  [**12]  The plaintiff then prayed the opinion of the court, and their direction to the jury, that from the evidence the jury are not at liberty, and cannot presume that patents issued for Gibson's Forest and Warner's Chance. Which opinion the court refused to give. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Key and Winder, for the Appellant, cited in their argument on the first bill of exceptions, Peake's Evid. 70. Chitty on Bills, 402. Owings vs Norwood's Lessee, 2 Harr. & Johns. 96. Faulkner vs Eddy's Lessee, 1 Binny's Rep. 188; and Oneale vs Lodge, 3 Harr. & M'Hen 433. On the second bill of exceptions, they cited Chitty on Bills, 402.

Martin, Harper and Kell, for the Appellee, on the first bill of exceptions, cited Gittings's Lessee vs. Hall, 1 Harr. & Johns. 18. Ford vs Lord Grey, 6 Mod. 44. 11 Vin. Ab. tit. Evidence, 57, pl. 9. Lofft's Gilb. 102, 103; and Carroll's Lessee v Llewellin, 1 Harr. & M'Hen 164. On the second bill of exceptions they cited Lloyd vs Gordon, 2 Harr. & M'Hen. 254. Carroll's Lessee vs Norwood, 4 Harr. & M'Hen. 287. Peake's Ev. 23. Vin. Ab. tit. Evidence,  [**13]  97. Tolly's Lessee vs Ford, 1 Harr. & Johns. 413. Boreing's Lessee vs Singery, 4 Harr. & M'Hen. 398. And on the third bill of exceptions they cited Co. Litt. 6. Gilb. L. E. 97, 100. Hall's Lessee vs Gough, 1 Harr. & Johns. 119; and Carroll's Lessee vs. Norwood, 4 Harr. & M'Hen. 287.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.GANTT, J. dissented from the opinion of this court as to the second and third bills of exceptions.  

OPINIONBY:
CHASE 

OPINION:

 [*26]  CHASE, Ch. J. delivered the opinion of the court. In actions of ejectment to recover the possession of land, it is incumbent on the plaintiff to show a grant of the land from the proprietary. To prove such grant he must produce the patent, or copy under seal. This is the general rule, and must be generally adhered to, because there can be no recovery in ejectment without showing a legal title in the plaintiff, which cannot be done without producing a grant from the proprietary.
The cases in which this general rule has been deviated from, and in which secondary evidence has been resorted to, and admitted, for the purpose of obtaining the direction of the court to the jury to presume and find a grant, rest [**14]  on strong facts and circumstances, evincing an equitable right to the land--an incipient title from the proprietary, and length of possession in conformity thereto--mesne conveyances and wills, transmitting the right from the taker up to the plaintiff.

 [*27]  In actions of ejectment the producing the grant of the proprietary is the first step in deducing title; if that is wanting, and inferior testimony is resorted to for presuming a grant, the foundation must be laid by stating and combining all the facts and circumstances existing in the case, on which the prayer to the court is to be made for their direction to the jury, to presume and find a grant.
In this case, to repel the plaintiff's title, an attempt is made by the defendant to prove an antecedent grant, without producing it, or giving any evidence that such grant ever existed, without showing an incipient title, or proof that the records of the land office were lost or destroyed, and without showing any rightful possession accompanying the defendant's claim.
Length of possession is the great and leading fact in presuming grants and deeds, and without which no grant or deed can be presumed.
There are no facts stated [**15]  in the first bill of exceptions, by which the right and possession of the proprietary could be divested. It is not stated that Clark was ever in possession of the land; and if he was, he was an intruder, and his deed could not operate to transfer any right to the land, for he had no right or interest to transmit; and the entry and possession of Franklin under Clark's deed, was an intrusion, the land being vacant land. The proprietary continued in possession until the act of confiscation; and the acts for appointing commissioners vested the right to the land, and the actual seisin and possession, in the state, which continued in the state until the grant made to Cockey, the lessor of the plaintiff.
The court are of opinion, that the deed from Clark to Franklin, and the certificate of the receipt for the alienation fine endorsed on that deed, are not legal and competent evidence; and that the court below erred in admitting the same to be read to the jury to show title in the defendant to the land in question, and do dissent from the opinion expressed in the first bill of exceptions.
It is the exclusive right of the court to decide on the legality and [**16]  competency of all testimony, which is to be read or given to the jury; and this court are of opinion, that the court below erred in allowing the three papers, purporting to be copies of certificates for Gibson's Forest and Warner's Chance, to be read in evidence to the jury, the same not 

 [*28]  having been certified by Thomas Jennings under the seal of the land office, and the same being without date, and the court below having referred the same to the jury to determine whether they were genuine or not. This court dissent from the opinion expressed in the second bill of exceptions.
It of right belongs to the court to determine on the legal sufficiency of the facts and circumstances which will warrant the jury in presuming and finding a patent; and this court are of opinion, that the court below erred in not directing the jury that the proof in this case was insufficient in law for the jury to presume a grant from the proprietary, and they dissent from the opinion in the third bill of exceptions.
GANTT, J. dissented from the opinion of this court as to the second and third bills of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

5 of 38 DOCUMENTS 

WOOD vs. GRUNDY & THORNBURGH'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 13; 1810 Md. LEXIS 5 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Ejectment for a lot situate in the city of Baltimore, in that part of the city called Howard's late addition to Baltimore, and known on the plot thereof by No. 687, &c. The demise in the declaration was stated to be on the 1st of January 1801. The general issue was pleaded.

1. The plaintiff, (now appellee,) at the trial, produced and had witnesses sworn to prove that Aquila Brown, of Baltimore, merchant, was a person using trade and commerce at the said place, and that he was indebted before and on the 20th of February 1802, and afterwards, to Nicholas Norris, in a sum exceeding $ 2000; that Norris on the 22d of February 1802, sued out a writ of copias ad respondendum against Brown, which was returned non est. And the defendant, (now appellant,) having offered evidence to prove that the debt due to Norris had not become due or payable before or at the time when the writ of capias ad respondendum was issued, the plaintiff further produced and showed to the court the commission, qualifications, depositions and proceedings, before the commissioners, and their judgment thereon, as herein after mentioned, and offered to read the judgment of the [**2]  commissioners to the jury, to prove that Brown had committed an act of bankruptcy before the issuing of the said commission; and further offered to prove that Norris, in the petition and writ aforesaid mentioned, was one and the same person, and that Brown, in the writ and judgment aforesaid mentioned, was one and the same person. The defendant objected to the judgment of the commissioners being read in evidence to show that Brown had committed an act of bankruptcy, as in the said judgment stated. But the court, (Nicholson Ch. J) was of opinion, that the judgment of the commissioners was prima facie evidence of the bankruptcy, and might be read to the jury to support the title of the assignees of Brown; but that if the jury should be of opinion, that the debt from Brown to Norris was not due at the time of issuing the capias ad respondendum, that then the judgment of the commissioners did not prove the bankruptcy. The defendant excepted.

2. The plaintiff then read in evidence the patent for a tract of land called Lun's Lot, granted to Edward Lun, on the 20th of July 1673; also an act of assembly passed at April session 1782, entitled, "An act for an addition to Baltimore town,  [**3]  in Baltimore county," reciting, that John Eager Howard had set forth that he was seized and possessed of a great part of Lun's Lot, part of which had been laid out into lots, and annexed to Baltimore-town, &c. He prayed a law authorising other parts of the said tract to be laid out into lots, &c. The commissioners of Baltimore-town were therefore required to cause the said tract of land to be surveyed and laid out into lots, &c. at the proper cost and expense of the said Howard, &c. The plaintiff also read in evidence the original location of said addition, made in pursuance of said law, from the original record filed in the Mayor's office of the city of Baltimore; and offered evidence to prove, that lot No. 687 in the said addition, on the said plot, is the same lot for which the present ejectment is brought. He also read in evidence a deed from John Eager Howard, in the said act mentioned, to Henry Didier, for the said lot, dated the 8th of October 1792; and also a deed for the said lot from Didier to Aquila Brown, dated the 15th of April 1795. He also offered in evidence, that Brown, in the said deed mentioned, was a person using trade and commerce at the city of Baltimore on the [**4]  19th of February 1802, and indebted to Norris in a sum exceeding $ 2000, and that Norris sued out a writ of capias ad respondendum against Brown, to recover said debt, on the 22d of February 1802; and produced and showed to the court the petition, commission, qualification, depositions and proceedings, before the commission of bankruptcy, and their judgment thereon; and read to the jury the judgment of the commissioners to prove, that Brown had committed an act of bankruptcy before the commission issued; and further read in evidence the appointment and qualification of the assignees under the proceedings of bankruptcy; and read in evidence the deed from the commissioners to the assignees, the lessors of the plaintiff, bearing date the 23d of February 1802; and offered evidence to prove, that the commissioners in the said deed mentioned were the same persons appointed under the commission of bankruptcy; and that the lessors of the plaintiff, and the grantees in that deed named, are the assignees under the said commission, and no other or different. The defendant then offered to prove, that the debt of Norris was not payable at the time of issuing the writ by him against Brown. The court,  [**5]  upon the prayer of the plaintiff, directed the jury, that if they believed the debt from Brown to Norris was due and payable at the time of issuing the capias ad respondendum, in the name of Norris against Brown; and also if they believed the evidence offered by the plaintiff, that then the plaintiff is entitled to recover. The defendant excepted.

3. The plaintiff then offered evidence to prove, that the lots, for which this ejectment is brought, was part of the land mentioned in the act of assembly aforesaid, (1782, ch, 2,) so claimed by Howard, and laid off into a town, and that the said lot was conveyed by Howard to Didier, and was improved by Didier about ten years ago, and continued in his occupation and possession until he sold it to Brown, who continued in possession of the lot and premises until the 22d of February 1802. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if they believed the evidence on the part of the plaintiff, that then Brown had a legal and valid estate in the lot on the 22d of February 1802, according to the limitations in his deed. Which direction the court gave. The defendant excepted.

4. The plaintiff [**6]  then prayed the opinion of the court, and their direction to the jury, that the petition, commission and assignment, under the commission of bankruptcy issued against Brown, (which he offered in evidence,) were competent and proper to prove the facts therein mentioned, and that if the defendant does not show title to the premises in the declaration mentioned, out of Brown, before and on the 22d of February 1802, that then the defendant must claim subsequent to the act of bankruptcy stated in the commission; and if the jury so find, that then the assignment of the bankrupt's effects gives title to the premises in the lessors of the plaintiff, and the plaintiff is entitled to recover. Which direction the court gave. The defendant excepted.

5. The plaintiff further prayed the opinion of the court, and their direction to the jury, that if the defendant shows no title out of the plaintiff before the 22d of February 1802, and no conveyance from him at any time since, that then the assignment under said cause of bankruptcy is evidence of title in the lessors of the plaintiff, until some title is shown out of Brown before or after that day. Which direction the court gave. The defendant [**7]  excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Martin and W. Dorsey, for the Appellant, in arguing on the first bill of exceptions, contended that the judgment of the commissioners, under the commission of bankruptcy, was not prima facie evidence sufficient to prove that Brown was a bankrupt under the bankrupt law of the United States of the 4th of April 1800. In England, under the bankrupt laws, the assignees in suits brought by them, are bound to prove every fact by viva voce evidence. The proceedings of the commissioners are not evidence even in actions to recover money due to the bankrupt; they are not evidence except in actions between parties and privies. Upon common law principles the judgment of the commissioners is not evidence for any purpose; and the bankrupt cannot be a witness to prove his own bankruptcy. They cited the bankrupt law of the United States, passed on the 4th of April 1800, (3 Vol. Laws U. S. 320.) Bull. N. P. 37. Cooper's B. L. 105, 173, 306, 307, 380. Abbot vs. Plumbe, 1 Dougl. 216. Chapman vs. Gardner, 2 H. Blk. Rep. 279. Bateman vs. Bailey, 5 T. R. 512. Selw. N. P. 222, 226, Vaughan [**8]  vs. Martin, 1 Esp. Rep. 440. 1 Lofft's Gilb. 31, 32, 64, 65. Mann vs. Shepherd, 6 T. R. 79. Field vs. Curtis, 2 Stra. 815; and Bickerdike vs. Bollman, 1 T. R. 405.

On the second bill of exceptions they contended, that the declaration in ejectment shows that the demise was laid on the 1st of January 1801, long before the title accrued to the lessors of the plaintiff, and therefore the plaintiff could not recover. They cited Berrington vs. Parkhurst, 2 Stra. 1086. Runn. Eject. 86. Bull. N. P. 105, 106, 86, 87. 2 Esp. Dig. 443. 3 Blk. Com. 205; and Aslin vs. Parkin, 2 Burr. 668.

On the third bill of exceptions they contended, that the title set out did not give Brown a title to the lot in question; and there was no evidence that Col. Howard had a title to the premises by him conveyed to Didier, under whom Brown claimed.

On the fourth and fifth bills of exceptions they contended, that under the bankrupt law the whole proceedings of the commissioners, not a particular part, may be evidence for certain purposes, but that here a part only of the proceedings had been offered and admitted as evidence.

Key, Harper and S. Chase, jr. for the Appellee, confended, upon the first [**9]  bill of exceptions, that the commissioners were created a court of record, and with competent jurisdiction; that they acted judicially, and their judgment must be a judicial act, and sufficient evidence for the purpose for which it was admitted. They cited Burr. Settl. Cases, 136. Billings vs. Prinn & Delabore, 2 W. Blk. Rep. 1017. The King vs. Forrest, 3 T. R. 38. The King vs. The Inhabitants of, &c. Ibid 380. Cooper's B. L. 174. Darby vs. Baughan, 5 T. R. 210; and the 51st and 56th sections of the bankrupt law of the U. S.

Upon the second bill of exceptions they contended, that an ejectment was a fictitious action, and may be moulded by the court for certain purposes. The demise is a matter of form, and is an immaterial part of the declaration; and besides, under the act of 1809, ch. 153, it could be amended. They cited Doe vs. Pilkington, 4 Burr. 2449. Bennett vs. Ganby, Carth. 178. Aslin vs. Parkin, 2 Burr. 665. Small vs. Cole, Ibid 1159. Fairclaim vs. Shamtitle, 3 Burr. 1292. Oates vs. Brydon, Ibid 1895; and the act of 1809, ch. 153, s. 3.

Upon the third bill of exceptions they contended, that the act of April 1782, ch. 2, recites that Col. Howard was seized and possessed [**10]  of Lun's Lot, and directs that Lun's Lot should be laid out and form a part of Baltimore town; and there was sufficient evidence offered without deducing title from the grantee of Lun's Lot.

Upon the fourth and fifth bills of exceptions they contended, that the 56th section of the bankrupt law renders it unnecessary to produce more than certain papers in evidence. The assignment of the commissioners was evidence of all the facts therein stated; and it was sufficient evidence against an intruder without title.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*18]  CHASE, Ch. J. delivered the opinion of the court. The court dissent from the opinions of the county court as expressed in the several bills of exceptions taken in this case.
On the first bill of exceptions, the court are of opinion, that the proceedings of the commissioners of bankruptcy are not legally admissible as evidence in this case, to prove the act of bankruptcy committed by Aquila Brown--the proceedings being res inter alios acta, and not evidence according to the principles of the common law, and not made evidence by the laws of the United States,  [**11]   which relate to 

 [*19]  this subject. The opinion, therefore, of the court below on this bill of exceptions is erroneous.
On the second bill of exceptions, the court are of opinion, that the opinion of the court below is erroneous, this court being of opinion, that it appears by the proof stated in the case that the lessors of the plaintiff below had no title at the time of the demise laid in the declaration of ejectment, but that their title, if they had any, accrued subsequently to that time.
An ejectment is an action to try the right of possession to the land in controversy. The lease, entry and ouster, laid in the declaration, are fictitious, and substituted in the place of a real lease, actual entry and ouster. The time of the demise is matter of substance, and not form, and the plaintiff must show a title in his lessors anterior to the time of the demise, because without such title they could not make a real lease.
In an action for the mesne profits, the plaintiff can recover profits from the time of the demise, without showing title, the defendant being concluded by it; but if he claims profits prior to the time of the demise, the defendant may controvert his title.  [**12]  
The court will allow the plaintiff to amend his declaration at any time before verdict, by changing the time of the demise, for the attainment of justice, on such terms as will impose no hardships on the defendant.
That clause of the act of last session, (Nov. 1809, ch. 153, s. 2,) which has been referred to, does not extend to matters of substance, but to form.
It appearing on the record that the lessors of the plaintiff had no title to the land in question, at the time of the demise, the judgment must be reversed.
On the third bill of exceptions, the court are of opinion, that according to the whole proof stated in the case, the plaintiff has no right to recover, there being no title deduced from the patentee of Lun's Lot to John Eager Howard, and there being no possession proved in Aquila Brown, and those under whom he claims, sufficient to entitle the plaintiff to recover in ejectment without showing title.
JUDGMENT REVERSED.  

6 of 38 DOCUMENTS 

DAVIS vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 154; 1810 Md. LEXIS 31 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the Court of Oyer and Terminer, &c. for Baltimore county. An indictment was found at September term 1810, for assaulting, and attempting to commit Sodomy, on the body of W C. The indictment contained two counts. The first count stated, that Davis, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on, &c. with force and arms at, &c. in and upon one W C, a youth of the age of 19 years, in the peace of God, and of the state of Maryland, then and there being, did make an assault, and him the said W C, then and there did beat, wound, and ill-treat, with an intent that most horrid and detestable crime, (among christians not to be named,) called Sodomy, with him the said W C, and against the order of nature, then and there feloniously, wickedly and devilishly, to commit and do, to the great displeasure of Almighty God, contrary to the act of assembly in such case made and provided, and against the peace, government, and dignity of the state. The second count stated, that the said Davis, not having the fear of God, &c. but being moved, &c. on, &c. with force and arms, &c. in and upon the said W C, in the peace of God, &c. then [**2]  and there being, did make an assault, and him the said W C then and there did beat, &c. with an intent then and there feloniously, &c. with him the said W C, against the order of nature, to have a venereal affair, and with him the said W C, that sodomitical, detestable, and abominable sin, (among christians not to be named,) called Buggery, then and there feloniously, &c. and against the order of nature, to perpetrate and commit, to the great displeasure of Almighty God, and disgrace of all human kind, contrary to the act of assembly in such case made and provided, and against the peace, government, and dignity of the state. The traverser having appeared, filed a suggestion, on oath, that he could not have a fair and impartial trial in the court of oyer and terminer, &c. and prayed the court to order and direct the record of the proceedings to be transmitted to the judges of an adjoining county court, there to be tried, &c. This prayer the court refused. The traverser having pleaded not guilty, the case was tried, and a verdict of guilty was found against him. His counsel moved the court in arrest of judgment, for the following reasons: 1. That the indictment concludes against the [**3]  act of assembly, which makes the facts charged in the indictment criminal, or which forbids it. 2. That the facts charged in the indictment, as there charged, is no offence indictable by the laws of this state. 3. That the indictment is insufficient, inasmuch as it does not charge the traverser with an intent to have carnal knowledge of the body of W C. 4. That the indictment is insufficient wholly to authorise the court to pass judgment on against the party. The court, (Scott, Ch. J.) overruled the motion, and rendered judgment on the verdict, that the traverser should be imprisoned in the gaol of Baltimore county, from the 9th of January 1811, until the 9th of April 1811, and that he stand in the pillory on the third Saturday of January, being the 19th day of the said month, in the year 1811, for the space of fifteen minutes, between the hours of 12 and 1 o'clock of the same day, and that he also pay to the state the sum of $ 500, for his fine laid upon him for the offence aforesaid, according to the act of assembly in such case made and provided, and that he be committed to prison until he pays the said fine, &c. To reverse that judgment the traverser brought the present writ of [**4]  error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder and Brice, for the Plaintiff in error, contended, 1. That the cause should have been removed to an adjoining county court on the motion, &c. of the traverser. They referred to the acts of 1799, ch. 58, s. 1; 1804, ch. 55, s. 3; and 1805, ch. 65, s. 49, s. 25.

2. That the indictment was founded on the act of 1793, ch. 57, when no such crime as that charged in the indictment, is prohibited by that act. They referred to Stubb's Cr. C. C. 108, 109, 110. 2 Hawk. 35, 45. 76; and Hale, 170, 171.

3. That admitting it to be an offence, it was not sufficiently set out in the indictment. 1 East's C. L. 480. Stubb's Cr. C. C. 202, 203. 12 Coke, 36, 37; and 1 Hale, 628.

5. That the judgment was entered as an offence against the act of assembly.

Johnson, (Attorney General,) for the state, contended, that it was discretionary with the court, under the acts of assembly, to remove the cause or not; and having decided that the cause should not be removed, no appeal lies therefrom. He referred to the act of 1805, ch. 65, s. 49. Upon the other questions he referred to the act of 1793, ch. 57, s. 10. Stubb's Cr. C. C. 140; and East's C. L. 448.  

JUDGES:
 [**5]  The cause was argued in this court before CHASE, Ch. J. POLK, BUCHANAN, NICHOLSON, and EARLE, J. POLK, J. dissented.  

OPINIONBY:
EARLE 

OPINION:

 [*156]  EARLE, J. delivered the opinion of the court. The court are of opinion, that an assault, with an intent to commit the crime charged in this case, is within the act of 1793, ch 57, and is thereby punishable. The objections made to the indictment do not appear to the court to have any solidity in them. As the judgment of the court may be either at common law, or under the act of assembly, the conclusion contra formam statuti, is not improper; and the crime intended to be committed, being only in aggravation of the assault, it is sufficiently set forth in the manner it is stated.
The criminal court of Baltimore county have an undoubted power, we conceive, to order the record of proceedings on an indictment to be transmitted to the adjoining county court, the party charged having previously complied with the directions of the act of 1805, ch. 65, s. 49. The criminal court of Baltimore county, although denominated the Court of Oyer and Terminer and Gaol Delivery, must be considered as a branch of Baltimore county court,  [**6]  exercising criminal jurisdiction only, which is vested in all the other county courts in the state. Unless it is so considered, this consequence will be the necessary result, that the citizens of Baltimore county will be deprived of a privilege which is enjoyed by the citizens of all the other counties--the privilege of removing the indictment into an adjoining county, when a fair and impartial trial cannot be had in the county in which the person is indicted. The power is to be exercised in the discretion of the court, according to all the circumstances attending the prosecution, and it being impossible they should appear in the record, neither party can appeal, we think, from the decision of such a question.
The unmeaning expressions that follow the judgment of the court below, are to be rejected as surplusage.
POLK, J. dissented.

 [*157]  NICHOLSON, J. I am of opinion, that an assault, with intent to commit sodomy, is punishable by the act of 1793, ch. 57. The punctuation of the tenth section might perhaps warrant a different construction, by separating the words "or sodomy," from "assault, with intent to commit murder, robbery or rape." Such a construction would [**7]  confine the punishment to the actual perpetration of sodomy, which clearly was not the intention of the legislature. All the higher offences, such as murder, robbery, rape, burglary, arson, sodomy, and the like, are included in the general antecedent expressions, "felony with or without benefit of the clergy," and the legislature could not mean to descend to a particular designation of a single offence, which had been before made punishable by the general clause. The crime of sodomy is too well known to be misunderstood, and too disgusting to be defined, farther than by merely naming it. I think it unnecessary therefore, to lay the carnaliter cognovit in the indictment, particularly as Stubbs, a compiler of some repute, gives a form of indictment without these words, and East, another author of merited celebrity, does not consider them essential.
The criminal court of Baltimore has not, in my judgment, any authority to transmit indictments to an adjoining county court for trial. The act of 1804, ch. 55, s. 3, does not give the authority, for it speaks only of transmitting proceedings from one county court to another county court, and manifestly relates [**8]  only to those courts which had been created by the preceding section. The criminal court of Baltimore is not a county court, but a court of limited jurisdiction, established by the act of 1793, ch. 57, for especial purposes, and expressly named and styled "The Court of Oyer and Terminer and Gaol Delivery." The county courts are created by the constitution as changed in 1804 and 1805, which declares that they shall be composed of a chief judge, and two associate judges, to be thereafter commissioned by the governor and council, and it has never heretofore been supposed that the criminal court of Baltimore was one of these. The forty-ninth section of the act of 1805, ch. 65, is merely restrictive; it confers no new authority upon any court, but was intended barely to prohibit the removal before the indictment is found.

 [*158]  Although I differ with the other members of the court in some of their reasoning, I nevertheless concur with them in affirming the judgment.
JUDGMENT AFFIRMED.  

7 of 38 DOCUMENTS 

BURGESS vs. GUN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 225; 1811 Md. LEXIS 12 

June, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of replevin for 110 hhds. of tobacco, marked C. The defendant, (now appellant,) pleaded property. The facts were admitted at the trial to be these--Alexander Mactier, on the 17th of May 1800, at the city of Baltimore, entered into an agreement with Howes Goldsborough, that a charter party should be drawn between them for the Snow Maryland, Capt. Thos. Burgess, from Baltimore to Amsterdam, for and in consideration of 6,500 Spanish milled dollars, payable on her delivering the cargo at the said port. In pursuance of this agreement, Goldsborough afterwards put on board the Snow, at the city of Baltimore, the tobacco mentioned in the declaration, and after lading the tobacco, to wit, on the 30th of May 1800, sold the same to the plaintiff, and gave an order on the defendant, who was the master of the Snow, to deliver the tobacco to the plaintiff. This order the defendant refused to comply with, and the plaintiff sued forth the present writ of replevin. In pursuance of said agreement a charter party was drawn up and approved by both parties, who agreed to sign it. Goldsborough afterwards, and after the lading the tobacco on board the [**2]  Snow, in pursuance of said agreement sent for the charter party so drawn up, and had it in his custody with a view to sign it, but instead of signing it, he afterwards wholly refused to sign it, in consequence of his having failed, and transferred as before stated, the tobacco to the plaintiff, and destroyed the charter party; and that the charter party was never executed. Before and after the sale of the tobacco to the plaintiff, Alexander Mactier, and the defendant, and the Snow, were at all times ready to take on board any cargo which Goldsborough might chuse to put on board; but that after having put on board the tobacco, and certain other goods, he wholly refused and neglected to put on board any further cargo. The Snow was in all respects prepared to sail her said voyage, as related to the part to be performed by Mactier, except the shipping of her hands, and her clearance, both which Mactier was ready and willing to have done as soon as Goldsborough should complete the lading of the cargo; and that it was always the practice in the port of Baltimore to ship hands, and clear out the vessel, after the cargo is put on board. The goods, which had been put on board, were not a full [**3]  lading for the Snow, and were not the whole of the cargo intended to be put on board by Goldsborough, and that he did not order, nor wish the Snow to sail on the said voyage with the cargo then on board; and that he assigned the tobacco to the plaintiff, in payment of a debt contracted for the purchase of the same tobacco from the plaintiff, and abandoned altogether any further connexion or concern in said intended voyage, or the property laden on board the Snow, and refused to complete the lading of the Snow, which was to have been performed by him previous to her sailing; and that the Snow was prevented from sailing on said voyage, for the purpose of delivering the cargo at Amsterdam, solely by the acts of Goldsborough and the plaintiff; and that the defendant, as master of the Snow, and the agent of Mactier, did refuse to deliver the tobacco in pursuance of the herein before recited order of Goldsborough; but insisted, that the cargo should be completed, and the vessel should proceed to perform the voyage according to said agreement, and that the freight should be paid; both of which Goldsborough and the plaintiff absolutely refused on their part. The Snow never sailed on the said [**4]  voyage. After the tobacco was taken under the present writ, out of the Snow, and Goldsborough and the plaintiff had so refused to permit her to proceed on her voyage, Mactier did, on the 19th of June 1800, sell the Snow to Robert Gilmor & Sons. Mactier, before the agreement herein before stated between him and Goldsborough, expended a considerable sum of money in preparing the Snow for a voyage on the high seas. Upon these facts, the plaintiff prayed the opinion of the court, and their direction to the jury, that he was entitled to recover. This direction the court, [Nicholson Ch. J.] gave, being of opinion that the defendant had no lien on the goods for freight, no freight being in fact due before the commencement of the voyage; and that if injury had been sustained by the owner of the Snow, in consequence of a violation of the contract on the part of Goldsborough, the proper remedy was to be sought by an action against him. The defendant excepted; and the verdict and judgment being against him, he appealed to thiscourt.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Harper and Winder, for the Appellant, cited 1 Esp. Dig. 146. How vs. Beech, 3 Lev. 244. Winter vs. Foweracres, 2 Roll. Rep. 39. Co. Litt.  [**5]  209, a. Hurford vs. Peter, Cro. Jac. 483. Touteng vs. Hubbard, 3 Bos. & Pull. 295, 296, (note;) and 1 Com. on Cont. 354, p. Lawrence, J.

Martin and W. Dorsey, for the Appellee, cited Smith vs. Wilson, 8 East, 437. Molloy, 370; and Curling vs. Long, 1 Bos. & Pull. 634.  

JUDGES:
The cause was argued before POLK, BUCHANAN, EARLE, and JOHNSON, J.  

OPINION:

 [*228]  JUDGMENT AFFIRMED.  

8 of 38 DOCUMENTS 

COLVIN vs. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 38; 1810 Md. LEXIS 10 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. The declaration contained five counts; the first, that the plaintiff, (the appellee,) was possessed of two shares of stock of the Bank of Baltimore, of the value of $ 1000, of which the defendant, (the appellant,) had notice, and in consideration that the plaintiff, at the special instance and request of the defendant, would sell to him the said two shares, and that the plaintiff would, in pursuance of such sale, transfer the stock to the defendant on, &c. he undertook, and then and there promised the plaintiff to pay him the sum of $ 900, it being the rate or sum of $ 450 for each share of the stock, when requested. The plaintiff averred, that he, confiding in the promise and undertaking of the defendant, afterwards, &c. did sell to the defendant the said stock, and that the plaintiff hath always been ready, and still is ready, to transfer the said stock in due form of law to the defendant. The second count, general indebitatus assumpsit, for two shares of stock, &c. sold by the plaintiff to the defendant. The third count, quantum meruit, for two shares of stock, &c. The fourth count, similar to the first count, with an averment that [**2]  he offered to transfer the stock, &c. which the defendant refused to accept, &c. The fifth count was a similar count, omitting the averment of an offer to transfer, &c. The general issue pleaded. At the trial the plaintiff offered evidence, that the defendant, having applied to Thomas Barklie, who was a known public broker residing and dwelling in the city of Baltimore, and with whom he was in the habit of transacting business as a broker, to inform him whenever stock of the Bank of Baltimore was at the price of $ 450 per share, as he wished to become a purchaser, but did not specify the number of shares he wished to purchase; and that a certain Benjamin Williams, James Cox, and the plaintiff, did afterwards, on the 22d day of February 1804, place with Barklie a quantity of shares of stock of the said bank to the number of ten, or upwards, and did authorise Barklie to make sale thereof at the price of $ 450 per share; that Barklie, being thus authorised, did make out the bill of parcels, a copy whereof is as follows, viz.

"Balto. 22 Feb. 1804.

Mr. Richard Colvin Bot. of Thomas Barklie, Broker, ----Shares of Baltimore Bank Stock a 450 pr. Share, to be transferred on the 23 [**3]  instant. $ ----." And did send the same by W. Boyce his clerk, to the defendant, who received the said bill of parcels, and was informed he might have what shares he wanted; and after looking over his bank book to see what amount of money he had in bank, the defendant filled up the blank in the bill of parcels with the number seven, and carried out on the bill of parcels the amount of the seven shares in money, which he entered thereupon, and having showed to Boyce the bill of parcels thus filled up and extended, kept the same in his possession. The plaintiff also proved, that five of the shares mentioned in the bill of parcels were the property of Benjamin Williams, and that the remaining two shares were the property of the plaintiff, and that at the time of the delivery of the bill of parcels to the defendant, Barklie did not inform the defendant to whom the seven shares belonged, but that Barklie, on the 23d of February 1804, informed him that five of the shares were the property of Benjamin Williams, and the remaining two shares the property of the plaintiff; and that B. Williams and the plaintiff, on that day, offered to transfer to the defendant the seven shares; that is, the [**4]  plaintiff his two shares, and B. Williams his five shares, upon the respective payment of $ 450 for each of the shares; but the defendant refused to pay for the seven shares, declaring that he would neither accept of a transfer of the said shares, nor pay for the same. That the plaintiff was at that time a stockholder of two shares in the said bank, and B. Williams was at that time also a stockholder of five shares, and that the plaintiff did tender to the defendant the two certificates of his two shares, and B. Williams the five certificates of his five shares, on the morning of the 23d of February 1804, which the defendant refused to receive. The plaintiff then moved the court to direct the jury, that this testimony was sufficient to maintain the first, fourth and fifth counts of the plaintiff's declaration. The court, (Nicholson, Ch. J. and Hollingsworth, A. J.) gave the direction. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
W. Dorsey, for the Appellant. 1. The plaintiff below ought not to have recovered on the first and fifth counts of his declaration, and it is doubtful whether he could recover on [**5]  the fourth count. In the first count it is not stated that there was a tender of the shares. 2. By the statute of frauds the contract was not binding, unless part of the goods was received, or some note or memorandum in writing given. There must be a contract signed by the party to entitle the plaintiff to recover. Here is a mere sketch of a writing, neither filled up, nor the shares delivered. It is clear that the requisitions of the statute have not been complied with. The intention of that statute was to prevent verbal agreements from being set up. It may be said that Barklie was the agent of both parties; and if so, yet the agreement is not such as the statute contemplates. It does not state the number of shares, although the price is stated. This is a material omission. 3. If the agreement is obligatory, yet there is a material variance between the declaration and the proof. The evidence is the sale of seven shares, and the declaration is for two shares. 4. There was no objection that Barklie was a broker, and he might have sued for the seven shares. If this action is correct, seven actions might have been brought; and if this could be done, the statute of frauds would be evaded.  [**6]  There is no evidence on the bill of parcels who the seller was. The action ought to have been in the name of Barklie.

Harper, for the Appellee. Although in some cases the agent may maintain an action, yet in every such case the principal or owner may sue. There is a double remedy given. The usual mode is for the owner to sue in his own name, and this is done every day. There are many sales where the principal is not known in the transaction, where it is effected by an agent or vendue master. If a note is given to the agent, he may sue, but if there is no note, the principal can sue. This is necessary in all sales by agents. Barklie is known to be a broker, and there being no note in this case, the agent, could not sue. It is a special contract, made through the agent, for the respective shares. The shares are not jointly the property of all the owners of shares put in the hands of a Broker for sale, and a joint action could not be maintained. It was a several interest in the whole. If there had been but one share, then it would have been the property of all. This is the case of several persons who happen to employ the same agent to sell their stock. In the proof it appears, that [**7]  at the same time there was a special contract for other shares sold to the same person. It is a special contract with the plaintiff for two shares, and with B. Williams for five shares, neither having an interest in the shares of the other. This is not a contract within the statute of frauds. It is for the sale of shares of stock, and is for a kind of property which is not embraced by that statute. The 17th section of the statute says, that "no contract for the sale of any goods, wares or merchandises," shall be good, &c. The question is, whether bank stock was contemplated by that statute? It speaks of goods, in contradiction to real estate. Would it embrace lease-hold estate? The term goods is to be taken in a restricted sense. If the word goods was alone used it might be doubtful, but the three words are to be taken together, and they were not intended to apply to stock in a Bank. This point has not been finally settled, and is open for decision. The judges in England are divided in opinion. 1 Com. on Contr. 88 to 91. This was a contract executed--There was a complete sale, and such an one as the defendant could be enforced to perform in a court of equity. The formality was only [**8]  to be complied with, but the sale was complete, and the stock was vested without a delivery. The sale of a horse at a stable is good without a delivery, and an action may be brought for the horse, if there is no delivery. The defendant had such a right which he could enforce the performance of. The offer to sell was accepted and agreed upon. It was a complete sale. The transfer could only be made in a particular way, and was not a condition precedent to the payment of the money. If the sale of bank stock is within the statute, then here is a note or memorandum in writing. The bill of parcels was in the hand-writing of Barklie, the agent of both parties. The defendant filled up the blanks, and though he put it in his pocket, will it be said that it would bind the plaintiff and not the defendant? The defendant, by filling up the blanks, made it his writing. The statute does not say any thing about a signature or a delivery.  

JUDGES:
The case was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*42]  THE COURT said, that the sale of bank stock is within the statute of frauds; and that Barklie was the common agent of both the appellee and appellant.
JUDGMENT AFFIRMED.  [**9]  

9 of 38 DOCUMENTS 

NORWOOD vs. MARTIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 199; 1810 Md. LEXIS 45 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore County Court, issued on the 30th of May 1810, for the removal of a judgment rendered in that court at March term 1810, for $ 334 debt, $ 500 damages, and $ 7 93 1/3 costs. The damages by (agreement,) to be released on payment of interest on the debt from the 1st of January 1809. A record of the proceedings was transmitted to this court to June term last, with the writ of error, endorsed, "Bond filed, and securities approved."

T. Buchanan, for the Plaintiff in error, at this term, exhibited a petition on the part of the plaintiff in error, stating that he had on the 30th of May 1810, entered into bond with sureties, approved by the chancellor, for prosecuting a writ of error on the judgment rendered against him in Baltimore county court, at the suit of the defendant in error, a copy of which bond he exhibited, being in the penal sum of $ 800, and in the usual form. That a transcript of the record of said judgment had been transmitted to, and was now depending in this court. That on the 29th of November 1810, the defendant in error sued out a writ of capias ad satisfaciendum on the judgment from Baltimore county court, under which the plaintiff in error had been [**2]  arrested, and was in custody of the sheriff of that county under the said pretended execution; from which he prayed to be discharged, &c.

And on the motion of the counsel of the plaintiff in error, it was ruled by the court, that the defendant in error show cause, by Friday the 4th of December instant, why a writ of habeas corpus should not issue to the sheriff of Baltimore county, to produce the body of the plaintiff in error before this court, &c.

Martin, in person, now showed cause. He contended, that as the penalty in the writ of error bond was not in double the amount of the debt, damages and costs, the writ of error did not operate as a supersedeas. He referred to the act of 1713, ch. 4. The approval by the chancellor was only as to the security, and has nothing to do with the form of the bond. He also contended, that as the petitioner, (as was the case,) was then present in court, and not in the actual custody of the sheriff of Baltimore county, he was not entitled to a writ of habeas corpus. He referred to 3 Bac. Ab. tit. Habeas Corpus, (B 3) 427. Rex vs. Kessel, 1 Burr. 637 He further insisted that this court, as a court of appeals, had no authority [**3]  to issue the writ. It can only be issued, if at all, by the court out of which the ea. sa. issued, or by a member of this court out of court.  

DISPOSITION:
RULE DISCHARGED.  

OPINION:

 [*200]  RULE DISCHARGED.  

10 of 38 DOCUMENTS 

M'MECHEN'S Lessee vs. GRUNDY & THORNBURGH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 185; 1810 Md. LEXIS 41 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court from a judgment rendered in favour of the defendant in that court, in an action of ejectment brought to recover the possession of a lot of ground in the city of Baltimore, described by metes and bounds. The general issue was pleaded.

1. At the trial the plaintiff below read in evidence a grant of Todd's Range to James Todd, on the 1st of June 1700; and proved that the premises, mentioned in the declaration, were part of that tract, and that Aquila Brown being seized and possessed of the said premises, did, on the 20th of February 1802, convey the same to M'Mechen, the lessor of the plaintiff, in consideration of the sum of $ 14,050, by deed duly executed, acknowledged and recorded. He also offered evidence, that I. and J. P. Pleasants had previously to the 29th of December 1801, endorsed sundry notes for the accommodation of Brown, to the amount of $ 16,000, none of which were then payable, and did not become payable till after the 20th of February ensuing; and that Brown, on the 29th of December 1801, applied to I. and J. P. Pleasants to endorse further and other notes for his accommodation, which they refused to do, unless Brown would secure [**2]  them, by the conveyance of property, against any responsibility which they might incur by reason of such proposed endorsements; that Brown did then agree with I. and J. P. Pleasants to secure them, by the transfer of bank stock, against any responsibility which they might incur by reason of such endorsements to be made by them for the accommodation of Brown; that in pursuance of such engagements, I. and J. P. Pleasants did endorse for the accommodation of Brown three promissory notes, each for $ 4,674, dated the 29th of December 1801, drawn by Brown, and payable to and endorsed by I. and J. P. Pleasants, one in 170 days, another in 180 days, and the other in 190 days; and that Brown did thereupon sign and deliver to I. and J. P. Pleasants the following receipt: "Received, December 29th, 1801, of Israel and John P. Pleasants, their three several endorsements of my notes for four thousand six hundred and seventy-four dollars each, making fourteen thousand dollars, which I promise to provide for and pay as they become due, say on the 17th and 27th of June, and 7th of July next; and as a security for the faithful performance thereof, I hereby engage to deposit bank stock to the amount [**3]  in their hands.

A. Brown, jr."

That Brown, afterwards did negotiate, for his own use and accommodation, the said three notes so endorsed by I. and J. P. Pleasants, with a certain E. Pannell, and that I. and J. P. Pleasants afterwards, on the 19th of February 1802, knowing Brown to be in difficult circumstances, called on him and requested him to secure them, in pursuance of his said engagement, against any responsibility which they might incur by reason of their said endorsements; and thereupon Brown having then no bank stock, offered to convey to them the premises mentioned in the declaration, for the purpose of indemnifying them as aforesaid, but which they did not accept. That the lessor of the plaintiff, on the 20th of February 1802, in order to assist I. and J. P. Pleasants, agreed with Brown and I. and J. P. Pleasants, that if Brown would sell and convey to him the property mentioned in the declaration for the amount of the said notes, that he would pay Pannell the amount of the said notes when due; and that Brown, in pursuance of his said undertaking to I. and J. P. Pleasants, and at their request, and in pursuance of the above mentioned agreement between the lessor [**4]  of the plaintiff, I. and J. P. Pleasants and himself, did on the 20th of February 1802, sell and convey to the lessor of the plaintiff, by the deed herein before mentioned, the premises mentioned in the declaration; and that the lessor of the plaintiff did, at the respective periods at which the said three notes became due, pay the amount of them to Pannell, the holder; and that the premises mentioned in the declaration were not worth the amount of the said three notes, so paid by the lessor of the plaintiff. That Brown's affairs being desperate, and it being impossible for him to go on with his business, or pay his debts, he was, on the said days, and particularly on the 20th of February 1802, very fearful of being arrested by his creditors, or some of them, and took measures to avoid such arrest. The defendants then gave in evidence, that Brown was, on the 17th of February 1802, and long before, and from that day until the 22d of the same month, a merchant, residing in the city of Baltimore; that he was at the said times, and long before, a person actually using the trade of merchandise, by buying and selling in gross, and dealing in bills of exchange; and that he was on the 20th [**5]  of February 1802, indebted to N. Norris above the sum of $ 1,000 then due; that on that day Norris sued out of Baltimore county court a writ of capias ad respondendum against Brown, which writ was directed, and the same day delivered, to the sheriff of Baltimore county, to be served upon Brown; that the sheriff on the same day, at 4 o'clock in the afternoon, called at the dwelling house of Brown to serve the writ, who concealed himself therein, and directed one of his clerks to inform the sheriff that he, Brown, was not at home, although he was at that time in his said house, and did deny himself for the purpose of preventing himself from being arrested upon the said writ. That Brown did, before the 20th of February 1802, declare that he had been advised to become a bankrupt, and that he was determined to become one. That on the 17th of February 1802, Brown, being indebted to R L, J M, & R C, in the sum of $ 7000, on a protested bill of exchange drawn by him in their favour, and before that time protested for nonpayment, R C called on Brown, and urged him to pay or satisfy the said bill; and that Brown did therefore, for the purpose of discharging the said bill, execute and deliver [**6]  to R L and J M, with the assent of R C, on the 17th of February 1802, a bill of sale of a Brig called The Hunter, then belonging to Brown. That on the 19th of February 1802, Brown and J P, being tenants in common of and in three tracts of land in Anne-Arundel county, containing 300 acres, Brown did, at the urgent request of J P, by deed duly executed and recorded, convey to J P, and his heirs, all his Brown's interest and estate in the said lands, in consideration of the sum of $ 2000 about two years before that time expended by J P for Brown in the improvement of the said land, and in pursuance of an agreement so to convey, made by Brown with J P soon after the time of making the said improvement, and two years before the date of the deed. That all the said conveyances, including the deed to the lessor of the plaintiff, were made by Brown with a view to, and in contemplation of, an act of bankruptcy, stoppage of payment, and insolvency by him to be committed, and with intent to give to the several persons aforesaid, being a part of his creditors, a preference in payment of their debts, to the exclusion or injury of his other creditors; that the debts then due from him to the said [**7]  persons, together amounted to $ 23,000, the property so conveyed to $ 16,000, the whole of his debts to all his creditors $ 460,000, and the whole of his property and estate to about $ 100,000. That Brown did actually stop payment on the 19th of February 1802, and that one of his notes was duly protested for nonpayment on the 20th of the same month, in the afternoon. That on the 20th of February 1802, N. Norris presented to J W, then district judge of the U. S. in and for the district of Maryland, a petition stating that Brown had become bankrupt, &c. and praying the judge to grant unto him a commission of bankruptcy against Brown, &c. And did also, on the 22d of February 1802, make affidavit in writing of his debt, amounting to $ 2356 39, &c. He also executed on the 22d of February 1802, and delivered to the judge, his bond as required by law. That on the 22d of February 1802, the judge did, by commission under his hand and seal, appoint J C, &c. to act as commissioners of Brown. That the commissioners, having taken the oath required, &c. did on the 22d of February 1802, proceed to execute the said commission, and cause reasonable notice in writing to be served on Brown, &c. That [**8]  Brown, on the 23d of February 1802, in pursuance of the notice, appeared before the commissioners, and submitted himself to the commissioners, and did not require that any jury should be impannelled, &c. That the commissioners did, on the 23d of February 1802, on due examination and proof, adjudge and declare Brown a bankrupt. That the commissioners did immediately after they had adjudged and declared Brown bankrupt as aforesaid, cause due and sufficient notice to be given to Brown's creditors, and did in such notice appoint a convenient time and place for the said creditors to meet and prove their debts, and to choose assignees, &c. which notice was duty published, &c. That at the time and place specified in the said notice, the creditors of Brown proved their debts, and did then and there duly appoint the defendants, assignees of Brown. That the commissioners afterwards, on the 11th of March 1802, made, executed and delivered, a deed to the defendants, appointing them assignees, and conveying to them all and singular the goods, &c. of Brown, of which he was possessed, &c. The plaintiff then offered evidence, that it was previously to the 20th of February 1802, concerted between Brown [**9]  and Norris, the petitioning creditor, that Norris should sue forth a writ of copias ad respondendum against Brown, and that Brown should keep his house so that he should not be taken or served with the writ, and that Norris should thereupon petition the district judge for a commission of bankruptcy against Brown; and that in pursuance of the said concerted agreement between Norris and Brown, Norris did sue forth the writ herein before mentioned against Brown, and that Brown did, in pursuance of the said agreement, keep his house at 4 o'clock, P. M. on the 20th of February 1802, so that he could not be served with the said process; and that Norris did, in further execution of the said concerted scheme, petition the district judge for a commission of bankruptcy, who issued the commission herein before mentioned; and that the commissioners appointed in and by the said commission, and herein before named, did declare Brown a bankrupt on account of his having so as aforesaid avoided the service of the said process. That on the 20th of February 1802, there was no debt due and payable from Brown to Norris. That the deed from Brown to the lessor of the plaintiff was executed and delivered [**10]  to the lessor of the plaintiff on Saturday the 20th of February 1802, at 8 o'clock in the morning, and that Brown did not consent to commit an act of bankruptcy until the 19th of February 1802, in the evening, and then with reluctance, although persuaded or advised so to do by some of his friends, and that he did not refuse to pay any of his creditors their respective debts until the 20th of February 1802. The county court, [Nicholson Ch. J.] upon the prayer of the defendants, directed the jury, that if they believed from the testimony in the cause that Brown had agreed, on the 19th of February 1802, with his friends, to deny himself to the sheriff for the purpose of committing an act of bankruptcy, thereby to lay a foundation for a commission of bankruptcy; that he did so deny himself on the 20th; that a commission issued in pursuance thereof, and that he was declared a bankrupt; that the deed from him to the lessor of the plaintiff was executed on the 20th of February, after he had formed this resolution, with a view solely to secure the Pleasants against any responsibility which they might afterwards incur on account of their endorsements for Brown's use; and that the lessor of [**11]  the plaintiff accepted the said deed, and agreed to take up Brown's notes endorsed by the Pleasants, when they became payable, with the same view of relieving the Pleasants from their future responsibility, and to secure them against any loss which they might sustain in consequence of the derangements of Brown's business, then the said deed is not a bona fide purchase in the purview of the tenth section of the act of congress, but must be considered fraudulent in point of law, by giving a preference to certain persons, who might possibly afterwards become creditors, in exclusion of other creditors, if the jury believe that Brown had other creditors to a considerably larger amount than his funds. And inasmuch as the deed was a fraudulent conveyance, made in contemplation of, and with a determination to commit an act of bankruptcy, it is void, and is in itself an act of bankruptcy, and will support the commission and adjudication of the commissioners, although the act, upon which the commission issued, was subsequent to the execution of the deed, but upon the same day, and although the said act might not have been an act of bankruptcy. The deed to the lessor of the plaintiff being void,  [**12]  he cannot recover in this cause, as he has shown no other title than that derived from Brown, which did not pass, by reason of the fraud upon Brown's other creditors. The plaintiff excepted.

2. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if the jury shall be of opinion from the evidence, that Brown was, on the 20th of February 1802, seized of the premises mentioned in the declaration, and being so seized did on that day convey the same to the lessor of the plaintiff by deed duly executed, acknowledged and recorded, for a fair and full price, and that the said deed was executed and delivered to the lessor of the plaintiff by Brown, before the act of bankruptcy committed by Brown, on which the commission of bankruptcy against him issued, and that the lessor of the plaintiff had no knowledge, information or notice, of any act of bankruptcy committed by Brown at the time of the execution and delivery of said deed, that then and in that case the plaintiff is entitled to recover. This opinion and direction the court refused to give. The plaintiff excepted. The verdict and judgment being for the defendants, the plaintiff appealed to this [**13]  court.  

DISPOSITION:
JUDGMENT REVERSED, &c.  

COUNSEL:
Martin and W. Dorsey, for the Appellant, contended, 1. That the conveyance from Brown to the lessor of the plaintiff could not be deemed a voluntary preference on the part of Brown; and if it was not voluntary, it was not fraudulent. And 2. That if it was made in contemplation of bankruptcy, and to give a preference, still it was not by that circumstance void, because it was made on the pressing application of creditors. They referred to the act of congress, to establish an uniform system of bankruptcy, passed on the 4th of April 1800, ch. 19. Phoenix vs. Ingraham's assignees, 5 Johns. Rep. 412. Hartshorn vs. Slodden, 2 Bos. & Pull. 582. Ex Parte Scudamore, S Ves. 85. Worseley vs. De Mattos, 1 Burr. 467, 480. Harman vs. Fishar, 1 Cowp. 117. Small vs. Dudley, 2 P. Wms. 427. Rust vs. Cooper, 2 Cowp. 629. Hooper vs. Smith, 1 W. Blk. Rep. 441. Thompson vs. Freeman, 1 T. R. 156, (note.) Smith vs. Payne, 6 T. Rep. 152. Yeates vs. Groves, 1 Ves. jr. 280. Hopkins vs. Grey, 7 Mod. 189. Cock vs. Goodfellow, 10 Mod. 489, 497; and Smith vs. Hodson, 4 T. R. 211, 212.

Harper argued for the Appellees.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN,  [**14]  and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*192]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that the conveyance from Aquila Brown to William M'Mechen, the lessor of the plaintiff, is not fraudulent, the same having been made for a valuable consideration, and for the purpose of substantially complying with the engagement of Brown to the Messrs. Pleasants, to transfer or deposit bank stock with them, to secure them against any loss they might sustain by endorsing the three notes. As Brown could not comply with his engagement to transfer or deposit bank stock with the Messrs. Pleasants, when applied to by them, and as Brown offered to convey the house and lot to them as a substitute for the bank stock, and inasmuch as the conveyance was made to M'Mechen, with the concurrence of all the parties then concerned, on his engaging to take up the notes, the preference acquired by the Messrs. Pleasants was consequential, and nothing more than a substantial fulfilment of the engagement made by Brown to them at the time of endorsing the notes.
The court are of opinion, that to render a payment or transfer by a debtor to his creditor,  [**15]  fraudulent as to the other creditors, under the bankrupt law, it must be spontaneously made in consequence of a formed design to become 

 [*193]  a bankrupt. In this case the conveyance made by Brown was not voluntary, but produced by the application of the Messrs. Pleasants for a transfer of bank stock, which they were entitled to, and the refusal of Brown to comply with his engagement, or to make any provision to indemnify them, would have subjected him to an action at law, or bill in chancery for a specific execution of his contract, and in that point of view the application of the Messrs. Pleasants must be considered as importunate and pressing.
The court reverse the judgment of the court below, this court dissenting from the opinions expressed in both of the bills of exceptions, and awarded a procedendo.
JUDGMENT REVERSED, &c.  

11 of 38 DOCUMENTS 

BOWLY'S Lessee vs. LAMMOT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 4; 1810 Md. LEXIS 3 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Ejectment for a tract of land called Chatsworth, lying in Baltimore county. Defence was taken on warrant, and plots were made. At the trial it was admitted by the parties that William Lux, deceased, was seized in fee simple, on the 1st of January 1773, of the tract of land called Chatsworth, granted to him by patent, containing 950 acres; and being so seized, made his will on the 5th of May 1773, whereby he devised, among other things as follows: "Item. I give and bequeath to my dear wife Agnes Lux, for and during her natural life, my tract of land and plantation called Chatsworth, with the dwelling-house and all the buildings and improvements thereon, (save and except the Rope Walk.) "Item. I give and bequeath to my dear son George Lux, his heirs and assigns, my tract of land called Chatsworth, lying in Baltimore county, containing 950 acres; but in case my said son should die before he attains of legal age, and without issue, then I leave and bequeath the said tract of land called Chatsworth to my dear wife Agnes Lux, or her assigns, to be at her own will and disposal as it originally was, save and except five acres, to be laid off in a long square [**2]  on the south two degrees west one hundred and thirty-one perch line, being the fifth line from the beginning; and that said five acres, together with the Rope Walk, and all the buildings and improvements thereon, I give and bequeath to my dear nephew and partner, Daniel Bowly, his heirs and assigns; and it is further my will and intention, that if my said dear wife should die before my dear son George, so that my estate be vested in him, and he should afterwards die before he attains legal age, and without lawful issue, then and in such case, I leave and bequeath all that part of my said tract of land called Chatsworth, that lies to the northward of a north west line drawn from the beginning trees of the tract of land called Hap Hazard, to Agnes Walker, and the heirs of her body lawfully begotten, and in default of such issue to Charles Walker, his heirs and assigns, for ever; and all the rest and residue of the said tract called Chatsworth, I give and bequeath to my said nephew Daniel Bowly, and his heirs and assigns, remainder over to my dear brother Darby Lux, his heirs and assigns, for ever, subjecting the same nevertheless in either case to the payment of £  500 sterling to Agnes [**3]  Walker, and her heirs." William Lux died on the 10th of May 1778, leaving George Lux his only son, and heir at law, then of the age of twenty-one years. Agnes, the wife of the testator, survived him several years. Daniel Bowly was the nephew of William Lux, and at the time of the date of the said will was in partnership with him in carrying on the manufactory of rope, in a Rope-Walk situated on a part of Chatsworth, but Bowly was not at that time in any manner interested in the land called Chatsworth, nor was there any lease of the Rope-Walk, or any articles or terms of partnership. George Lux lived many years after his arrival at the age of twenty-one years; and after the death of his mother, and while he was in the actual seisin and possession of the land, did, on the 17th of April 1787, by deed, convey in trust, &c. to William Russell, "all that part of Chatsworth which hath not heretofore been granted and conveyed, and whereof the fee simple remained at and before that time in the said Lux, a part of which is now under lease to his under tenants," &c. Russell, after the execution of the said deed, entered upon and became seized of such part of Chatsworth, as could legally pass [**4]  in virtue of the said deed, to and for the purposes of the deed; and afterwards by deed, dated the 27th of April 1789, conveyed to Harry Dorsey Gough parts of Chatsworth, described by courses and distances, and containing sixteen and a quarter acres. Gough, on the 9th of May 1801, conveyed to Lammot, (the defendant,) the parts of Chatsworth conveyed to Gough by Russell. The five acres of land, mentioned and described in the will of William Lux, are included within the lines of Chatsworth, and are part thereof; and they are truly located by the plaintiff on the plots in the cause, and are the same five acres of land which the plaintiff claims as his pretensions; but the RopeWalk did not occupy or cover more than two or three acres of Chatsworth. The two parcels of land, mentioned and described in the deeds from Lux to Russell, and from Russell to Gough, and from Gough to the defendant, are parts of Chatsworth, and include the land for which this ejectment is brought, and are truly located on the plots, and for which the defendant hath taken defence. Darby Lux, named in the will, was the testator's eldest brother, and survived him, and is since dead, leaving issue at this time in full [**5]  life and being. Upon these facts the defendant prayed the opinion of the court, and their direction to the jury, that the lessor of the plaintiff acquired no estate in the five acres of land in the said will mentioned, competent to support this suit. Of which opinion the court, (Nicholson, Ch. J. and Hollingsworth, A. J.) were, and did so direct the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Martin, Ridgely and Winder, for the Appellant, cited Shep. T. 84. 14 Vin. Ab. tit. Grants, 58, 62, 63. Wyat, vs. Aland, 1 Salk. 324. Bac. Ab. tit. Wills, (F) 522. Smith vs. Packhurst, 3 Atk. 136; and Coke Litt. 5, 56.

Key and Purviance, for the Appellee, cited Chew's Lessee vs. Weems, 2 Harr. & Johns. 173, (note). Brogden vs. Walker's Ex'r. &c. Ibid 285; and Belt's Lessee vs. Belt; et al. 4 Harr. & M'Hen. 80.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*7]  CHASE, Ch. J. delivered the opinion of the court. The following principles prevail in the construction of wills. The intention of the testator is to be collected from the words [**6]  of the will, and the whole of the will is to be considered and compared together. Such construction must be made as will gratify every part of the will, if it can be done consistent with the general intent.
The question is, whether the testator intended an immediate devise of the Rope-Walk to his nephew Daniel Bowly, or intended it to be a contingent executory devise in Bowly, depending on the executory devise to Ann Lux, vesting in her, on the death of George Lux under age, and without issue?
The Rope-Walk, and the five acres, must be considered as the same. The five acres, as described in the will, is a particular and precise designation, by metes and bounds, of the land comprehended under the general terms, The Rope-Walk.
It is plain the testator did not intend to die intestate of any part of his estate, and particularly of his land called Chatsworth. It is also plain he intended the Rope-Walk for Bowly. If he intended a contingent devise to Bowly, there was no necessity for excepting the Rope-Walk in the devise to his wife for life, because Bowly was not to have it until Chatsworth vested absolutely in her on the death [**7]  of George Lux under age, and without issue, and she might have enjoyed the whole of Chatsworth without interfering with such intention. But if he intended an immediate devise to Bowly, it was necessary to insert in the devise to his wife, for life, the exception of the Rope-Walk.
Is there any thing in this will to prevent it being expounded in such manner as will effectuate that intention?
The ninth clause is that part of the will on which the question principally depends. If in reading this clause 

 [*8]  we stop at the words, "but in case," the consequence would be, that a fee simple would vest in George Lux absolutely. The testator did not intend to give a fee simple to his son, but to modify it in such manner as to create an executory devise to his wife, on the happening of two contingencies; and to effect that intention, it is necessary to read on and complete the sentence, which is not complete until you come to the saving clause which excepts the Rope-Walk. The whole clause is one entire sentence, comprehending two dispositions connected with each other, and one arising out of the other; and the intention of the testator, as to the two objects [**8]  of his bounty, his son and wife, cannot be ascertained until the sentence is finished. The exception or restriction is as operative at the end of the sentence as it would have been at the commencement, and the saving pervades the whole disposition, and extends to the first as well as the latter part of the clause. The saving does not relate to the estate created, but to the thing devised.
This construction is enforced by an expression in a subsequent part of his will, where the testator uses the term his estate, (evidently meaning Chatsworth) vesting in his son upon the death of his wife; importing thereby it could not vest in him during her life; and if it did not, the devise to Bowly must have been intended by the testator an immediate, and not a contingent devise of the Rope-Walk to Bowly, otherwise it would have vested in his son during the life of the wife.
There is no complete disposition in the clause, until the creation of the estate limited to the wife by way of executory devise. The insertion of the saving manifests plainly what the devise is to operate on, by excepting a particular part, the Rope-Walk, which the generality of the words would have [**9]  included, and if it had been the intention of the testator to apply the contingency to Bowly, it is natural to suppose that he would have repeated the words, making the estate contingent immediately after the devise to him, which of itself vests an absolute fee.
BUCHANAN, J, dissented.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED a.

a See the case of Lammot's Heirs & Devisees vs. Bowly's Heirs, on appeal from chancery, 6 H. & J. 500.

12 of 38 DOCUMENTS 

WOOD vs. REPOLD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 125; 1810 Md. LEXIS 28 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit. The declaration contained two counts, one on a bill of exchange drawn on the 6th of January 1802, by Aquila Brown, of Baltimore, on Edward Goold, and Son, of New York, for $ 3780, and payable 60 days after date to Wood, (the defendant, now appellant,) by the name of Gabriel Wood, & Co. or order, which bill was endorsed by Wood, by the name of G. Wood & Co. payable to the plaintiff, (Repold,) and was, on the 10th of March 1802, presented to Goold and Son for payment, (the same having been accepted,) and payment being refused, the bill was on that day protested. The other count was for money laid out, expended and paid. The general issue was pleaded. The plaintiff at the trial gave in evidence that Aquila Brown, being a merchant, residing and carrying on commerce at Baltimore, did there draw the following bill of exchange on Edward Goold, and Son, of New York, in favour of and payable to the defendant.

"Baltimore, January 6, 1802. $ 3780

Sixty days after date pay to the order of Messrs. G. Wood, & Co. thirty-seven hundred and eighty dollars, value received, which charge to account of

A. Brown, Junr.  [**2]  Messrs. Edwd. Goold & Son, New-York."

Endorsed. "For value received pay the within to George Repold.

Gabriel Wood, & Co.

George Repold.

Accepted, Edwd. Goold, & Son."

The plaintiff also gave in evidence, that this bill was made by Brown for the sole purpose of being discounted to raise money for his own use; that for enabling him to raise money on it, the defendant, at the request of Brown, and for the purpose of enabling him to raise money on the bill, and without any other consideration, endorsed the bill in blank, by the name of Gabriel Wood & Co. on the day of the date of the bill, and immediately delivered it back, so endorsed, to Brown, but had at that time no knowledge or information that it was to be endorsed after him by the plaintiff, or that Brown intended to apply to the plaintiff to endorse it. That Brown, after receiving back the bill, so endorsed by the defendant, carried it on the same day to the plaintiff, and requested him to endorse it after the defendant, for the purpose of giving it further credit, and of thereby enabling Brown to raise money on it for his own use and benefit; that the plaintiff, in compliance with this request, and for [**3]  the purpose of giving additional credit to the bill, and of thereby assisting Brown to obtain the money on it, did endorse it in blank, and immediately delivered it back, so endorsed, to Brown, who soon afterwards procured it to be discounted, for his own use and benefit, by the Bank of Baltimore. That at the time of these endorsements no communication had taken place between the plaintiff and defendant respecting the bill or endorsements, or respecting any endorsements to be made by them, or either of them, for Brown, or for his use or benefit; and that the plaintiff received no consideration for his endorsement, except such as might arise in law from the previous endorsement of the defendant, and from the making of the bill by Brown; and that the bill was never delivered to the plaintiff by Brown or the defendant, except for the purposes aforesaid. The plaintiff also gave in evidence, that the bill, having been discounted by the Bank of Baltimore, was duly presented by that bank to the drawees, for acceptance and payment, and not having been accepted or paid was by them duly and regularly protested for non-acceptance and non-payment, of which protests notice was duly and legally [**4]  given by the said bank to Brown, and to the defendant and the plaintiff; that payment of the bill was then demanded immediately by the bank from Brown, who failed to pay it; whereupon notice of such failure was given by the bank to the plaintiff and the defendant, and payment of the bill thereupon was demanded of them by the bank. The plaintiff further gave in evidence, that he and the defendant, being so called on for payment of the bill, did agree that each of them should pay one half of the sum due thereon, but that the right of the plaintiff to recover from the defendant, as prior endorsor of the bill, the sum so by the plaintiff to be paid, with interest, should not in any manner be affected by the said agreement; and that the plaintiff, in pursuance of the said agreement, did on the 20th of March 1802, pay to the bank the sum of $ 1890, being one half of what was then due on the bill. The defendant then prayed the court to direct the jury, that the plaintiff, if the jury should believe the facts so offered in evidence by him, is not entitled in law to recover in this action the amount paid by the plaintiff to the bank. Which opinion the court, [Nicholson Ch. J.] refused to [**5]  give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin, Shaaff, W. Dorsey, Winder, and S. Chase, jr. for the Appellant, contended, 1. That as no consideration was given or paid by Repold to Wood for the bill of exchange, Repold was not entitled to recover in this action.

2. That Wood and Repold were to be considered as co-securities; and that where one surety paid, he might call on the other to become contributory, and as Wood paid one half of the bill. Repold was not entitled to recover the other half of him. In support of the first principle, they cited Kyd on Bills, 276. Puget vs. Forbes & Gregory, 1 Esp. Rep. 117. Chitty on Bills, 9, 50, 51, 181. Evans's Ess. 103, s. 2. Imp. M. P. 391, 392. Wats. on Part. 240. Petrie vs. Hannay, 3 T. P. 418, 421. Ex Parte Lambert, 13 Ves. 179. 1 Com. on Cont. 9 to 13. 1 Esp. Dig. 32. Pillans vs. Van Mierop, 3 Burr. 1671. Mansell vs. Burridge, 7 T. R. 350. Cowley vs. Dunlop, 7 T. R. 571. Gorgerat vs. M'Carty, 2 Dall. Rep. 149. Jeffries vs. Austin, 1 Stra. 674. Pearson vs. Garrett, 4 Mod. 242; and Grant vs. Naylor, 4 Cranch, 224.

3. The undertaking of the [**6]  endorsors was, that if the drawer or acceptor did not pay the bill, then the endorsors, as sureties, were to see it paid. Evans's Ess. 51. 1 Lutw. 888.

4. It is law, as well as equity, that if one surety paid, he had remedy against the other for his contribution. Rogers vs. Mackenzie, 4 Ves. 755. 2 Com. on Cont. 186, 190. Turner vs. Davies, 2 Esp. Rep. 478. Deering vs. The Earl of Winchelsea, 2 Bos. & Pull. 270. Cowell vs. Edwards, Ibid 268. Wright vs. Hunter, 1 East, 20. Child vs. Morley, 8 T. R. 614. Evans's Ess. 51, 149. Kyd on Bills, 113, 114. Master vs. Miller, 4 T. R. 342; and Pillans & Rose vs. Van Microp & Hopkins, 3 Burr. 1663.

5. Where bills are not negotiated in the regular course of trade, notice is not necessary, and the strict principle is not applicable to them. De Berdt vs. Atkinson, 2 H. Blk. Rep. 337, per Buller, J.

6. The declaration is defective, in not stating that Repold had entitled himself to recover by having taken up the bill. 1 Harr. Ent. 290.

Key, Harper, T. Buchanan, J. Bayly, and Boyd, for the Appellee, contended, 1. That the last endorsor of a bill of exchange, by the law of merchants, can recover of his antecedent endorsors. They [**7]  referred to 2 Com. Cont. 164, 188. Rogers vs. Mackenzie, 4 Ves 755. Sir F. Deering's case, 2 Bos. & Pull. 270. Turner vs. Davies, 2 Esp. Rep. 478. Martindale's Lessee vs. Troupe, 3 Harr. & M'Hen. 317, Pinkney's argument; and Murray vs. Elibank, 13 Ves. 8.

2. An accommodation bill of exchange is a mercantile transaction. They cited French vs. Bank of Columbia, 4 Cranch, 141, 156, 157. Nicholson vs. Gouthit, 2 H. Blk. Rep. 612. Mallet vs. Thompson, 5 Esp. Rep. 179. 1 Esp. Dig. 43, 46. Simmonds vs. Parminter, 1 Wils. 185. Chitty on Bills, 13; and Encyclopedia, tit. Bills of Exchange.

3. Repold and Wood were not joint sureties, and of course each of them was not bound to contribute one half, on the dishonour of the bill. They cited Preston vs. Merceau, 2 W. Blk. Rep. 1249, 1250. Toussaint vs. Martinnant, 2 T. R. 105. 2 Com. Cont. 174. Peake's Evid. 78. Chitty on Bills, 1, 2, 103, 112, 115, 116, 117, 118. Peacoke vs. Rhodes, Dougl. 636. Russell vs. Langstaffe, Ibid 516. Heylen vs. Adamson, 2 Burr. 674. Smith vs. Knox, 3 Esp. Rep. 48. Smith vs. Clarke, Peake's N. P. 225. Parker vs. Kennedy, 1 Bay's Rep. 416. Nicholson vs. Gouthit, 2 H. Blk. Rep. 612. Atkins vs. Banwell, 2 East,  [**8]  506. Seddons vs. Stratford, Peake's N. P. 215; and Kyd on Bills, 89, 113.

4. The general position, that between the immediate parties to a bill of exchange the consideration may be gone into, is admitted; but the meaning of that general rule is not that the endorsee must have paid value to his proximate endorsor. They cited Russell vs. Longstaffe, Doug. 514. Smith vs. Knox, 3 Esp. Rep. 46, 47. Mallet vs. Thompson, 5 Esp. Rep. 179. Scott vs. Lifford, 1 Campb. 246. Seddons vs. Stratford, Peake's N. P. 215. Bank of Columbia vs. French, 4 Cranch, 141. 1 Morg. Ess. 41, 42. Chitty on Bills, 9, 51, 181, 185. Evans's Ess. 104, s 2, 103, s. 2. Forth vs. Stanton, 1 Saund 211 b. Puget vs. Forbes, 1 Esp. Rep. 117. Imp. M. P. 391, 392. Wats. on Part. 244. Ex Parte Lambert, 13 Ves. 179; and 1 Com. Cont. 2, 9, 13, 16.

5. As to the equity of the case, they cited Toussaint vs. Martinnant, 2 T. R. 105. Osborne vs. Rogers, 1 Saund. 264, (notes.) Underhill vs. Horwood, 10 Ves. 226; and Philips vs. Hunter, 2 H. Blk. Rep. 412.

Curia adv. vult.  

JUDGES:
The cause was argued at December term 1809, before CHASE, Ch. J. GANTT, and EARLE, J. and was reargued at the present term before CHASE, Ch. J.  [**9]  POLK, BUCHANAN, GANTT, and EARLE, J. CHASE, Ch. J. dissenting.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*130]  BUCHANAN, J. at this term delivered the opinion of the court a. Aquila Brown, a merchant of Baltimore, wishing to raise a sum of money, drew a bill of exchange on a house in New-York for $ 3780, in favour of Gabriel Wood and Company, at sixty days, and took it to Wood, who at his request, and without any consideration, but solely to enable him to raise money on the bill, endorsed it in blank, and returned it to Brown. Brown then took it to Repold, who also, at his request, but without consideration, and to give a further credit to the bill, endorsed it in blank, and delivered it back to Brown, who took it to the Bank of Baltimore, and got it discounted. No money consideration passed between Repold and Wood; there was no communication or understanding on the subject between them, nor had Wood any knowledge that Repold was to endorse after him. The bill was afterwards regularly protested for nonpayment. Whereupon, Repold paid one half of the amount to the Bank of Baltimore, and obtained possession of the bill, and then brought suit [**10]  against Wood, as his endorsor, to recover back the sum so paid by him to the bank. The declaration contains two counts, the first, the common count on a bill of exchange by an endorsee against an endorsor; the other a money count for money laid out, expended and paid, for the use of Wood. It is objected that the plaintiff below is not entitled to recover, on two grounds--First. That he and Wood, by their endorsements, became co-securities for Brown, and was each to contribute his proportion. Second. That an endorsee 

 [*131]  cannot recover against his immediate endorsor, unless a money consideration passes at the time of the endorsement; and that in this case no money consideration did pass, the endorsement by each being only to enable Brown to raise money on the bill. If Repold and Wood could be considered as standing in the relation of co-securities for Brown, the first objection would be fatal; for in the capacity of co-security, Repold could not recover on the first count in the declaration, but must rely upon the money count, and having paid but one half of the amount of the bill in question to the Bank of Baltimore, he could [**11]  not, on the second count, recover back from Wood the sum so paid, being only what he himself, as a co-security, would be bound to contribute. But I am at a loss to imagine on what principle Wood and Repold are to be viewed in the light of co-securities. There is no doubt, that two or more may jointly endorse a bill of exchange; and in such case, each would be bound to contribute his just proportion of the amount; but then the endorsement itself must be joint, and not several and distinct, or at least, to create between two successive endorsors a liability to contribution, there must be a correspondent understanding between them. But here the endorsement does not purport to be joint, or bear in itself any evidence of a joint understanding between the endorsors, nor does there, in any manner, appear to have been any such understanding between them; on the contrary, when Wood endorsed the bill there had been no communication between him and Repold, and he did not know, or even suppose, that Repold was to endorse it after him, and I can perceive no resemblance between their relative situation, and that of co-securities in a bond. Every man who signs an instrument [**12]  of writing, is considered as understanding the nature of the obligation or contract into which he enters, and by his signature, subjects himself to the operation of the law governing such instruments. If two or more persons become securities for another in a bond, the law imposes upon them a joint undertaking or liability; and if one pays the debt of the principal, he may recover from each of the co-securities his aliquot proportion of the sum paid; and in such transactions, it is not necessary, to constitute a co-securityship, that they should all execute the bond at the same time, or that there should be an understanding between them; the nature of the instrument, 

 [*132]  and the law operating upon it, create the joint liability. Therefore, if one signs a bond, as security, at one time, not knowing who, or that any person is to come after him, and another signs it at a different time, by operation of law they are co-securities, and either who pays the whole, may call upon the other for his contribution. But not so with respect to the endorsors of a bill of exchange. Every endorsor is considered in law as a several and collateral security, and is as a drawer to his endorsee. [**13]  An endorsement presupposes a consideration passing from the endorsee to the endorsor, and of necessity precludes the presumption of a joint undertaking; for the law is consistent, and both presumptions cannot stand together. But in the case of the securities in a bond, there is not only no presumption of any consideration moving from one security to the other, but the fact is directly contrary, and the very nature of the transaction excludes the idea. I cannot, therefore, entertain the first objection, but think, that the endorsements of Wood and Repold must be considered as several and successive, to be operated upon by the law regulating such transactions. Nor can I perceive that the second objection is better supported. The bill in question, though drawn and endorsed for the accommodation of the drawer, to enable him to raise money upon it, must be considered as if it had been made in the ordinary course of business, subject to all the law and incidents attending bills of exchange, endorsed and passed in a regular course of negotiation. The same principles of law, and the same rules of evidence, equally apply to both, and when so considered, the objection that Wood received [**14]  no money consideration at the time of his endorsement, appears to me to have no weight. The position that, as between the immediate parties to a bill of exchange, as the drawer and acceptor, the payee and drawer, the endorsee and his immediate endorsor, the want of consideration is a sufficient defence to an action on the bill, is certainly a correct one, and extends to all bills of exchange, whether for accommodation, or otherwise. But that principle, when tested by the established practice and settled forms of proceedings in actions on bills of exchange, will, I think, be found applicable only to that particular stage of the negotiation at which the bill has stopped in the hands of the party suing, who having never passed it 

 [*133]  away, has consequently been obliged to pay nothing upon it, nor has created any liability on himself to pay, and therefore can only recover, in virtue of a consideration passed by him to the party from whom he received it; and in such case, it is that consideration alone which gives him a right of action. And although the law supposes a consideration, and the plaintiff is under no necessity to prove one, yet if none did pass, it was a naked undertaking,  [**15]  of which the defendant may discharge himself at the trial, by showing a want of consideration, or that it was an illegal one; but the same principle does not apply to this, or any case of an endorsor, or intermediate endorsee, who under his liability on his endorsement has been obliged or pay or take up the bill. If it did, there never could be a recovery on a bill of exchange by an endorsor, or intermediate endorsee, against the drawer or immediate endorsor; for every endorsor, by his endorsement, discharges the preceding parties as to himself, and constitutes his endorsee the payee. No consideration, therefore, which he may have originally paid for the bill, can afford him a ground of action; for having parted with all his interest in it, he is presumed in law to have received a valuable consideration for it, and can have no right to the money a second time. He cannot then recover, in consideration of what he may have originally given for the bill; nor could he have an action on the bill, in consideration of payment by him in virtue of his endorsement, as such payment is not a consideration originally given for the bill, but must be subsequent, which is contrary to every day's experience;  [**16]  for no action is more common than that by an endorsor against a drawer, or an intermediate endorsee against his endorsor, in which the plaintiff can only recover, on proof of payment by him to the bona fide holder of the bill; which payment gives him a new title to receive the money from the antecedent party, and is the very foundation of the suit, and the consideration money between them, as immediate parties to the bill, is never made a subject of inquiry, and if proved, could not aid the plaintiff. How then can that be deemed necessary, to entitle a party to recover, which, if proved, can avail him nothing? And this shows that the principle, that as between the immediate parties to a bill of exchange the want of consideration is a sufficient defence, is only applicable 

 [*134]  where a payee or endorsee has never parted with the bill. In such case, if he has given nothing for it, he cannot be entitled to recover any thing upon it; and that it does not apply to any party to a bill, who, on its being protested, has been obliged to take it up; in which case it is not the consideration originally moving from him, which entitles him to recover, but it is the subsequent payment [**17]  alone on which the law raises the promise, and gives him a new cause of action, and he sues in the capacity in which he paid the bill, and not that in which he received it. This application of the principle contended for, clears the case before us, I think, of all difficulty. The blank endorsement by Wood was an undertaking to pay the whole amount of the bill, if the acceptor or drawer should not, and it gave Brown authority to carry his credit into market, and to pledge it to all the world. On the faith of that pledge, Repold put his name on the bill, and thus incurred a liability, under which he has been obliged to pay one half of the amount of it to the Bank of Baltimore, where it was discounted; and it does not now lie in the mouth of Wood to say that he received nothing for it. Wood, by his endorsement, became liable for the whole amount of the bill, which liability was not in any manner lessened or impaired by Repold's endorsement, for the bank might have stricken out Repold's name, and recovered the amount from Wood. If then his liability was not extinguished by Repold's endorsement, what has since extinguished it? Surely not the payment [**18]  by Repold, who certainly is entitled to indemnity from some of the antecedent parties. Wood was as a security, that if the acceptor or drawer should not pay the money, he would. They have both failed to pay it, and he, as their security, now stands responsible to Repold for so much as he has paid. But it is said, that as Repold was himself also a collateral security, the payment by him was only in discharge of his own pledge, and therefore gives him no cause of action against Wood; but that argument goes too far; for suppose Wood on his liability had paid the money to the bank, would it not equally have been in discharge of his pledge? And yet it will hardly be said, that he could not, in that case, have recovered in an action on the bill against Brown, (if he was solvent,) 

 [*135]  in consideration of such subsequent payment, though no money or other valuable consideration originally passed from him to Brown. And if Wood, on redeeming his pledge, could have sustained an action on the bill against Brown, on what principle is it, that Repold, having redeemed his, cannot sustain an action against Wood, who as to him, is the drawer of [**19]  the bill, and to whom Repold stands in the same relation as he to Brown? And again, if a subsequent payment will give one immediate party a right of action on a bill of exchange against another, without any money consideration having originally passed between them, how can it be that the same principle does not extend to all? Nor is there any hardship in the case; Wood was bound for the whole of the money, and Repold, having paid a part of it, there is nothing unreasonable in his recovering it back again.

a Polk and Gantt, J. concurred.

DISSENTBY:
CHASE; EARLE 

DISSENT:

CHASE, Ch. J. As I do not concur in opinion with the court, respect and deference for their judgment, and what is due to myself, impel me to communicate the principles and reasons on which my dissent is grounded, and I have endeavoured to draw my opinion up in a plain and perspicuous manner, that my reasoning, and the principles and positions of mercantile law, on which it is founded, may be clearly discerned and understood.
A bill of exchange [**20]  is assignable, and carries internal evidence of a consideration, in order to facilitate and strengthen that commercial intercourse which is carried on through its medium. The endorsement on a bill of exchange carries the same internal evidence of a consideration, and creates a liability or obligation to pay the money to the fair holder of it, who, after due diligence used, and the precautionary steps have been taken, can resort to the drawer or any of the endorsors, for payment of the money. All the endorsors are equally liable on their respective and several endorsements, and the holder can support an action against either, without regard to the order in which their names stand on the bill. Every endorsement is in the nature of a new bill. The consideration of a bill of exchange may be inquiredinto between the immediate parties to it, as between the drawer and payee, the drawer and acceptor, and the endorsee and his immediate endorsor.

 [*136]  As a bill of exchange, and the endorsement on it, carry with them internal or prima facie evidence of consideration, the onus probandi of the want of consideration is imposed on the defendant in both cases.
In this case it is admitted [**21]  no consideration passed from Repold to Wood, as a motive or inducement for Wood's endorsement, except as might arise in law from the previous endorsement of Wood. It is also stated, that Wood and Repold endorsed the said bill, at the request of Aguila Brown, to give credit to it, and to enable him to receive the money on it for his own use and benefit, and that at the time of said endorsement no communication had taken place between Wood and Repold respecting the said bill or endorsements, or respecting any endorsements to be made by them, or either of them.
This is a suit brought by the endorsee of a bill of exchange, against his immediate endorsor, to recover the money paid by him to the Bank of Baltimore, and which he was compellable to pay.
It cannot make any difference in this case, as to the question of consideration, whether the bill is considered as an accommodation bill, or as passing in the ordinary course of mercantile transactions; the essential properties and qualities appertaining to bills of exchange attach to each, and the usual forms and requisites must be complied with to establish a right of recovery against the drawer and [**22]  endorsors.
Every endorsor of a bill of exchange becomes a collateral security, and by his endorsement engages to pay the money, if the drawer or acceptor does not.
The endorsement of a bill of exchange, without consideration, is a nudum pactum, as between the endorsor and his immediate endorsee, and no action can be supported on it by such endorsee.
The endorsement of a bill of exchange creates a liability in favour of every fair or bona fide holder of it, and such liability results, by operation of law, from the nature of a bill of exchange, and therefore an inquiry into the consideration in such case is precluded. The inquiry into the consideration of a bill of exchange, or the endorsement, being confined to the immediate parties to it, cannot restrict the negotiability of the bill, nor can any evils flow from it.

 [*137]  The payment of the money to the bank by Repold, was certainly not any consideration moving from Repold to Wood; nor could any liability from Wood to Repold be created by it. The consideration must exist at the time of the endorsement. The money was paid by Repold to the bank, in consequence of his own endorsement, and [**23]  thereby he acquired a right of action or remedy against Brown, the drawer, but not against Wood, because Wood had received no consideration for his endorsement. Wood's name being on the bill, although it might be an inducement with Repold to become an endorsor, as the risk of his securityship might be diminished by it, was not, most assuredly, a request by Wood to Repold to become an endorsor, nor could it, in law, render him liable to Repold.
To give validity to an endorsement, and make it operate as a transfer to the endorsee from his immediate endorsor, there must be an existing consideration, at the time of the endorsement, of money, or something of the value of money, moving from the endorsee to the endorsor. The priority of the endorsement, independent or exclusive of any other circumstance, cannot create any liability. If the endorsement of itself created a consideration, it would be conclusive evidence in all cases, and the principle of law, which allows of an inquiry into the consideration between the immediate parties, would be infringed, and become a nullity.
It is stated in the case, that no consideration was received by Wood from  [**24]  Repold, except such as might arise by operation of law from the previous endorsement.
It has been contended by the counsel of the appellee, that as Wood endorsed the bill at the request of Brown, and delivered it to him for the purpose of enabling him to procure money on it, that Brown, by implication of law, became the agent of Wood, to use all necessary means to obtain the money, and that the request of Brown to Repold to endorse the bill, was the request of Wood, and that the subsequent payment of the money by Repold to the Bank of Baltimore, coupled with the request, created a good and valid consideration.
There can be no doubt but that, by these acts of endorsement and delivery, the credit of Wood was pledged to any person who would pay money on it, and that Wood would have become liable to such person; but surely they 

 [*138]  could not constitute Brown the agent of Wood, or impart any authority to Brown to request Repold, or any other person, to endorse the bill. The full extent of Wood's engagement was to be responsible to any person who would advance the money on his credit. An agent cannot be made by [**25]  operation of law, and more especially when he is to do an act, in that capacity, for his sole and exclusive benefit.
The case stated excludes all agency to make a request, because it states there was no consideration but what might arise by operation of law from the prior endorsement, and also states, that Repold endorsed the bill at the request of Brown, and does not state that it was done at the request of Brown, as the agent of Wood.
Both the endorsors' names were on the bill before the bill was negotiated, and the discount was obtained; and they both signed for the express purpose of giving credit to the bill, and enabling the drawer to get the money on it. No money passed from Repold to Wood, nor any other consideration; they were both collateral securities for the drawer, that the drawee should pay the bill; on the failure of the drawee to pay the bill, and on the holders complying with the usual requisites, they became liable on their respective endorsements to pay the money to him. On the admission that Repold paid the money to the bank, he could have resorted to the drawer, but Wood, his immediate endorsor, is not liable to pay the money to [**26]  him, for want of consideration, and this on the supposition that it was a bill which had been transferred by Wood to Repold in the ordinary course of mercantile business, without consideration.
The payee of a bill of exchange cannot transfer it unless by a special endorsement, or an endorsement in blank, and delivery to the endorsee. In this case the endorsement by Wood was in blank, and the delivery was to Brown, and not to Repold; so that there was not any transfer from Wood to Repold. The bill came to the possession of Repold by delivery from Brown, not for the purpose of transferring it to him, but for the special purpose of his endorsing it to give it further or additional credit, and was, after endorsement by Repold, redelivered to Brown, for the sole purpose of enabling him to obtain money on it for his sole benefit. If a real bill, on what principle 

 [*139]  of law is it that the first endorsor is legally responsible to the second without any transfer or consideration?
Considering it as an accommodation bill, (of which there can be no doubt,) and that as such, it has all the qualities and properties incident to a bill of exchange [**27]  negotiated in the accustomed mercantile manner, what is there in this case to prevent the want of consideration from being a bar to the recovery? I think there is not any thing in this case to distinguish it from the common action of an endorsee against his immediate endorsor, who endorsed without consideration.
As to the question of contribution on the ground of its being an accommodation bill: Wood and Repold are collateral securities; their names are on the same bill as endorsors, and they both signed prior to the obtaining the money by discount; they became securities for the drawer that the drawee would pay the money. It is not necessary that both securities should sign at the same time, one may sign one day, and the other on another day; nor is it necessary they should have a previous conference as to their intention of becoming securities, in order to render them liable to contribution. The liability to contribute results, as a consequence of law, from their having entered into the same engagement for the same person, and to do the same thing; the one having paid the whole money, it is on a principle of justice that the other is compellable to contribute his proportion. [**28]  The action for contribution cannot be supported on the bill of exchange as such; but to entitle the party to a recovery it must specially set forth all the circumstances of the case as the ground of the action.
I can see nothing to distinguish this case from the common cases of securities on bonds and notes, the liability is similar, and the principle of justice is the same.
EARLE, J. The contending parties in this suit are the only endorsors of a bill of exchange, endorsed by each, at the request and for the accommodation of the drawer, to enable him to raise money for his own use and benefit; and the action is brought by the last against the first endorsor, on the ground of his having paid the bill to a fair holder. The principal questions arising out of the case are:
Whether there is a consideration between the parties sufficient to maintain the action? And

 [*140]  Whether a want of consideration is a defence that may be used against the present appellee?
As I agree with the chief judge on all the points he has touched in delivering his opinion, it seems unnecessary for me to give the result of my reflections upon any of them. I must, however, be allowed to make some short [**29]  remarks on the two adjudged cases referred to in the argument, as decisive of the above questions.
The cases alluded to are those of Seddons vs. Stratford, and Russell vs. Langstaffe, neither of which, it appears to me, can be assimilated in circumstances or principles to the case before us.
The first is the case of an endorsor, who endorsed for accommodation, and having paid the note to a fair holder rested his claim upon his payment; but his suit was not against his immediate endorsor, nor did the defendant endorse solely to accommodate and raise money for another. The note was passed for premiums of insurance, and endorsed by Stratford, the payee, to Clode, who, as I understand the Reporter, endorsed to Seddons. The plaintiff and defendant being remote parties in the negotiation of the paper, between them the consideration could not be inquired into; and if they were immediate parties, the want of consideration was no defence for Stratford, because he had received value at the time of the endorsement--at all events he had not endorsed for accommodation. The situation of Wood in this transaction is far different. He endorsed immediately to Repold,  [**30]   and received value from no person; and it is therefore open to him to inquire into the subject of consideration, and show the total want of it.
Russell vs. Langstaffe resembles the case before us still less. The defendant had endorsed to raise money for another, and the plaintiff was his immediate endorsee, but Russell gave value for the note, and claiming merely as endorsee, founded his demand upon the money he had advanced to accommodate Galley. The money he advanced was the consideration he gave for the paper, and Langstaffe was not at liberty to defend on the ground that he had received no consideration when he endorsed, because he undertook to pay the note if Galley did not, to any person who would furnish the maker with the money. In no respect is the situation of Repold to be compared to that of Russell. He is endorsor as well as endorsee; and in his 

 [*141]  action insists on an act done by him as endorsor. He did not give a consideration for the bill, but only paid to the person who did give a consideration for it; and instead of advancing to accommodate, he as a debtor, paid to fulfil his own engagement. His case is not within the contemplation [**31]  of the understanding of Wood to pay to those who should advance for Brown, and it therefore seems to me, to be competent to Wood to show that there is no consideration between him and the appellee.
Not being able to discover how the payment of Repold can be viewed as a consideration, and it appearing to me that the want of consideration may be shown between the parties to this action, it is my opinion that the court below erred in refusing to give to the jury the directions prayed for. I am for reversing the judgment.
JUDGMENT AFFIRMED.  

13 of 38 DOCUMENTS 

HUGHES'S Lessee vs. HOWARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 9; 1810 Md. LEXIS 4 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Ejectment for a tract of land called Gist's Inspection, lying in Baltimore county, containing 400 acres. Defence was taken on warrant, and plots were made, by which it appeared that the plaintiff located Gist's Inspection, as beginning at I on the plots, which was not counterlocated nor denied by the defendant, but admitted by him to be the place of beginning of Gist's Inspection.

1. At the trial in October 1806, the jury by their verdict say, "that they find the bounded red oak tree, mentioned in the grant of Lun's Lot, to have stood at figure 9 in the plots, and the said tract of land to run thence, what is called, in the defendant's table of courses on the plots, the thirty-eight perches N 25 1/2 [degree] W, and 100 perches N 70 1/2 [degree] W lines, according to their several courses and distances in the grant of Lun's Lot, with four degrees of variation; and the jury find the beginning of Gist's Inspection to be at figure 9 in the plots, and to run thence course and distance according to the grant of Gist's Inspection, with an allowance of two degrees for variation. And the jury find for the plaintiff all the land lying within Gist's [**2]  Inspection, according to the location thereof made by the jury, which is not covered by their location of Lun's Lot. Motion by the plaintiff to set aside the verdict--1. Because it is against evidence. 2. Because it is against the admissions of the plaintiff and defendant on record. The plaintiff afterwards, at the next term, withdrew his motion, and prayed the court to enter judgment on the verdict; but the court refused to enter a judgment on the verdict. Motion was then made by the plaintiff for a venire de novo; and the verdict was set aside, and a venire de novo awarded.

2. The defendant, at the second trial in March 1807, having located on the plots the land called Lun's Lot, as located and returned by certain commissioners on the 2d of August 1782, and on the present plots made the W N W 100 perches line of the said location terminate in lot No. 892 of the city of Baltimore, to prove his said location correct on the present plots, read in evidence the proceedings, certificate and plot, made out and returned by the said commissioners in 1782. And as the defendant had read in evidence the said last mentioned proceedings for the purpose aforesaid, the plaintiff offered to [**3]  read the same to the jury, to show that the same did not correspond with the location made on the present plots by the defendant; but that the W N W 100 perches line terminated in lot No. 900, and not in No. 892. But the defendant objected to the plaintiff's using the said proceedings, plot and certificate, for the purpose aforesaid. And the county court, (Nicholson, Ch. J. and Hollingsworth, A. J.) determined, that inasmuch as the plaintiff had not counterlocated the proceedings of the commissioners, he could not, by the evidence offered, controvert the location thereof as made by the defendant. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin and Winder, for the Appellant, stated that the first question was upon the first verdict found by the jury; that the ejectment was brought for Gist's Inspection, the beginning of which tract was admitted by both parties to be at letter I on the plots, and the only question for the jury, was as to the variation of the compass on the lines running from the beginning at I; but the jury, disregarding the admission of the parties, by their verdict [**4]  found the beginning of Gist's Inspection to be at figure 9 on the plots. They contended that the finding of the jury, as to the beginning of Gist's Inspection, ought to have been rejected as surplusage, and the court should have corrected the verdict so as to make the beginning at the letter I, and rendered judgment thereon. If the jury find what is contrary to the agreement of the parties, it is mere surplusage, and judgment is to be entered on the remaining part of the verdict. They cited 7 Bac. Ab. tit. Verdict, (W) 41. Dyer, 115, 147, 183. Goddard's case, 2 Coke, 4. Hassall vs. Juxon, Cro. Eliz. 283. 2 Roll. Ab. 691, (R) pl. 1, 2, 3, 10. Jenk. 102. Wilcox vs. The Servant of Skipwith, 2 Mod. 5. Clare vs. Pepys, Cro. Eliz. 41. 5 Com. Dig. tit. Pleader, (S. 17, 18.) S Leo. 80. Tonkin vs. Croker & Billing, 2 Lutw. 1216. 1 Leo. 66. Foster vs. Jackson, Hob. 53, 54. Vin. Ab. tit. Trial, 386, 407, 437, 438. Pal. 19. Trials Per Pais, 284. Co. Litt. 227. a. Rules of Practice, 11 Mod. 64, (2). 2 Bulstr. 56. Tonkin vs. Croker, 2 Ld. Raym. 860. M Ferran vs. Taylor, 3 Cranch, 280; and Hall vs. Gittings's Lessee, 1 Harr. & Johns. 28.

Harper and W. Dorsey, for the Appellee, stated that two [**5]  questions arose upon the refusal of the court below to enter judgment upon the first verdict--1. Did the court err in so refusing? And 2. If they did, was it competent for the appellant to avail himself of it on his appeal? They admitted, on the first question, that the court might mould the verdict so as to carry the intention of the jury into effect; but they contended, that if it had been done in this case there would have been quite a different finding from that contemplated by the jury, since the jury might not have found the same variation of the compass from the beginning at the letter I, which they did from the figure 9. In all the cases cited by the counsel for the appellant, after the surplusage was stricken out, there was a complete verdict remaining upon which judgment could be entered.

On the second question, they contended, that the plaintiff below, on the refusal of the court to enter judgment on the verdict, should have availed himself of the error at the time by an appeal or writ of error; but having submitted to the decision, and prayed the court to award a venire de novo, which was granted to him, he has waived all error, if there was any.

On the question [**6]  arising on the bill of exceptions, they referred to Hammond, et al. Lessee vs. Norris, 2 Harr. & Johns. 148. Keedy vs. Chapline, S Harr. & M'Hen. 578; and Jarrett's Lessee vs. West, 1 Harr. & Johns. 501.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*11]  CHASE, Ch. J. delivered the opinion of the court. As to the first question in this case arising on the refusal of the court to enter up judgment on the verdict of the jury.
It appears to the court that the verdict was insufficient, and that the court below did not err in refusing to enter judgment on it, and in granting a venire facias de novo.
The jury were concluded by the admissions of the parties, and ought to have found the beginning of Gist's Inspection at I, the place admitted; but having disregarded 

 [*12]  the admissions of the parties, and found the beginning of Gist's Inspection at a different place, figure 9, the subsequent finding of the jury is predicated on that mistake, and the courses and distances of Gist's Inspection, as found by the jury, must run from figure 9, and the court have no power to change the verdict, and to lay them down from I,  [**7]  contrary to their intention plainly expressed.
If the verdict of the jury is insufficient, or contrary to the admissions of the parties, the court have the power of granting a new trial, or ordering a venire, for the attainment of justice.
It is the acknowledged and exclusive province of the jury to decide on the variation of the compass, and to make such an allowance as corresponds with the proof, and will advance justice. The juries, in fixing the variation of the compass, are not confined to any certain rules, but are governed by the circumstances existing in the case. The juries, in some cases, have refused to make any allowance, in others they have allowed at the rate of one degree for every twenty years, and in others they have been influenced by ancient runnings and proof of possessions. There being, therefore, no certain criterion by which the allowance can be ascertained with precision, it would be assuming too much in the court to change the verdict in this case, by running the courses according to the patent of Gist's Inspection from I, instead of the figure 9, with the same allowance of variation.
[a It appears to me that the plaintiff has relinquished all [**8]  advantage he might have been entitled to, by acquiescing in the opinion of the court, and moving for a venire facias de novo, and obtaining a new trial. The ground of the motion was the insufficiency of the verdict, and was granted at the instance and on the suggestion of the plaintiff. If the court below had erred in refusing to enter up judgment on the verdict, and the plaintiff had rested his case on it, judgment of non pross would have been given, and the plaintiff could have obtained redress by writ of error; but according to this mode of proceeding, if sanctioned by this court, the plaintiff will have the benefit of a second trial, and the right of afterwards questioning the judgment below. The venire facias was granted on the motion, and 

 [*13]  at the instance of the plaintiff, and on the ground that the verdict was insufficient and void, and the plaintiff, having had the benefit of a second trial, and failed, cannot now, I think, be allowed to question the legality and propriety of the proceeding.

a The part here inserted in crotchets did not form a part of the opinion of the court.

 [**9]  
The court considered it as a principle, established beyond controversy, that where there is a location on the plots by either of the parties, of a tract of land, deed, plot, &c. and there is no counterlocation by the adverse party, such location is admitted.
It is also established, that no evidence can be given of the location of a deed, plot, &c. which does not correspond with it.
In this case the proceedings, certificate and plot, of the commissioners, being variant from the location made on the plots by the defendant of the said proceedings, certificate and plot, could not legally be admitted as evidence. The defendant having produced and read the same to the jury, without objection being made to the legality of the evidence, could not render the same legally admissible when offered by the plaintiff; and this court are of opinion, that the court below did not err in rejecting the said testimony, and do affirm the judgment.
GANTT, J. dissented as to the opinion expressed on the bill of exceptions.
JUDGMENT AFFIRMED.  

14 of 38 DOCUMENTS 

RUSK vs. SOWERWINE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 97; 1810 Md. LEXIS 22 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Replevin for a slave. The appellant was the plaintiff below. General issue and limitations were pleaded.

1. The plaintiff offered evidence, that John Bailey, being in his life-time possessed of a negro woman named Hannah, and being indebted to Daniel Dulany, deceased, to secure the debt, on the 12th of April 1769 executed a mortgage to Dulany of said negro slave, and other property, which was duly acknowledged and recorded, and was offered in evidence. And to prove that the slave in controversy was a descendant from Hannah, the plaintiff offered as a witness to that fact, a black woman named Minta; and on the defendant's objecting to her, as an incompetent witness, the plaintiff offered evidence that the witness, and the late Benjamin Bannaker, a black man of Baltimore county, were born of the same parents, and that the witness and Bannaker were always reputed to be free; and that their mother was also reputed to be free, and to be descended of free parentage, and did actually enjoy freedom. That Bannaker exercised in his life the rights of a free man in holding real property, in voting at elections, and being allowed and permitted to give [**2]  evidence in courts of justice in cases in which free white citizens were concerned; but it did not appear that at the times Bannaker was so admitted as a witness, objections were made to his competency. The Court, (Nicholson, Ch. J.) determined Minta to be an incompetent witness, the plaintiff and defendant being free white christian persons. The plaintiff excepted.

2. The plaintiff then proved, that Dulany, the mortgagee, above named, died in the year 1797, having by his last will and testament appointed his wife Rebecca his executrix, to whom letters testamentary were duly granted on the 25th of March 1797, copies of which will, dated the 13th of March 1786, and the letters testamentary, were offered in evidence. The plaintiff then produced to the court William Cooke, esquire, as a witness, and upon examining him, he proved to the court, that shortly after the granting of letters testamentary to Rebecca Dulany, he received a power of attorney from her, authorising him to act for her in all things relating to the said estate, as well in collecting the debts due to the testator, as in making sale of the real and personal estate belonging thereto; and that he received the power [**3]  of attorney while he resided at Annapolis; that on his removal to Baltimore he supposed it might have been mislaid; for that having occasion to refer to it not long since, he had looked among his papers but could not find it; that he did not make very strict search for it, and believes that it is among his papers, because all his papers are kept under lock and key, and few persons have access to them except himself. The Court, (Nicholson, Ch. J.) determined, that unless the original power of attorney was produced, or proved to be lost, or that the plaintiff had issued a subpena to the witness, with a duces tecum, the plaintiff could not give any evidence whatever of the power of attorney to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Harper, for the Appellant; and by

Boyd, for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*99]  THE COURT agreed with the court below in the opinions expressed in both of the bills of exceptions.
JUDGMENT AFFIRMED.  

15 of 38 DOCUMENTS 

TYSON vs. RICKARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 109; 1810 Md. LEXIS 24 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of replevin, brought by the appellee against the appellant. The defendant below, by his avowry justified the taking the goods, &c. being for one year's rent in arrear, amounting to $ 393 75, of a lot of ground leased by him to William Belton. Three pleas were pleaded to the avowry by the plaintiff, the first and second, of the statute of usury, and the third, in bar de injuria sua propria; to all which pleas there were replications, each tendering an issue, but to the replication to the last plea only, issue was joined, and upon that issue a verdict was given for the plaintiff. Motion by the defendant, that judgment on the verdict be arrested, because there was no issue joined in the pleadings. The court overruled the motion, and entered judgment on the verdict for the plaintiff.

1. The plaintiff and defendant at the trial, admitted the following facts, viz. That William Belton was, at the time of executing the mortgage to John Hayes, legally and rightfully possessed of the lot and premises hereinafter mentioned, for the residue of the term of 99 years in the assignment from Alice Smith and John Smith to William Belton. That [**2]  a deed of mortgage from William Belton to Robert Maxwell, dated the 23d of June 1801, was duly executed, acknowledged and recorded, for all that moiety of lot No. 64, in Baltimore town, which had been assigned and transferred to Belton, by Alice and John Smith, on the 10th of May 1794 That the said mortgage deed was made for the purpose of securing the repayment of $ 2000, which had been lent and advanced by Maxwell to Belton, on a contract, whereby Belton had agreed to allow Maxwell an interest at the rate of eighteen per cent per annum on the money thus advanced, and that the payment of said interest, so to be allowed, was secured by a promissory note from Belton to Maxwell, which note was duly paid by Belton to Maxwell. That the principal sum of $ 2000, so advanced on the mortgage, not being paid at the time stipulated in the deed for that purpose, Maxwell urged Belton for repayment thereof, and that Belton applied to James M'Evoy, a broker in the city of Baltimore, and requested him to borrow a sum of money, from 3000 to 3500 dollars, on mortgage of the same property before conveyed to Maxwell, as well for the purpose of repaying the money lent to him by Maxwell, as also to supply [**3]  other wants of his own, and authorised the said broker to allow an interest of fifteen per cent per annum, on the money he might be enabled thus to procure on mortgage. That M'Evoy applied to Nathan Tyson, (the defendant,) to loan the sum of $ 3500 to Belton, for which he should receive an interest of fifteen per cent per annum, and that the property so conveyed to Maxwell should be mortgaged to him to secure the repayment thereof. That on this application being made to him, the defendant immediately replied that he was willing to advance the money, but would have nothing to do with a mortgage, because he considered it a troublesome business, and gave M'Evoy an immediate and positive refusal to advance any money in that way; but said that he would make an absolute purchase of the property from Belton for the sum required, and would rent the property to Belton at a rent equivalent to an interest of fifteen per cent per annum, with a condition that Belton should have a right, when he pleased, (as M'Evoy then understood,) to purchase the property for the principal money advanced, on paying up the rent. That M'Evoy returned to Belton, and informed him of the terms on which the defendant [**4]  would agree to advance the sum of $ 3500; that Belton thereupon authorised M'Evoy to close the contract on the terms proposed by the defendant, and expressed his warm approbation thereof, observing at the same time it would be more advantageous to him to obtain the money in this way, than to let the property remain on mortgage to Maxwell, as he would now only pay at the rate of an interest of fifteen per cent instead of eighteen per cent. That in pursuance of the agreement so made through M'Evoy, Belton authorised the defendant to apply the sum of $ 2000, part of the $ 3500, so agreed to be paid for the purchase of the property, to the payment of the debt remaining due on the mortgage executed to Maxwell, and to receive from Maxwell an assignment of the mortgage. That the defendant paid the sum of $ 2000 to Maxwell, and Maxwell executed an assignment of the mortgage to him, in due form of law, by deed bearing date the 1st of April 1803. That the defendant paid the residue of the sum of $ 3500 to Belton, and Belton on the 1st of April 1803, executed a deed in due form of law to the defendant, purporting to transfer all his right and equity of redemption to the property mortgaged to [**5]  Maxwell; and that the defendant duly executed, acknowledged, and delivered to Belton, a lease of the said property, bearing date the 1st of April 1803, reserving the annual rent of $ 525 over and above the annual rent reserved by the original lease from Smith to Belton, to be paid quarterly in four equal payments, with a covenant that Tyson, at any time within five years, on payment of the full sum of $ 3500, together with all arrearages of rent then due to him by Belton, would execute a release and assignment of all his interest and estate in the premises, to Belton--which lease has been duly recorded. That if the defendant had a legal right to make the lease to Belton, there was due to him, at the time of the distress, the sum of $ 375. That the mortgage to Hayes was previous to that made to Maxwell. The plaintiff, to support the issue on his part, proved by two witnesses, who were house carpenters, and who had examined the house and lot mentioned in the deed from Belton to the defendant, that the same were worth, and would sell for $ 7500, and by two other: witnesses, one a master-builder, and the other a bricklayer, who had also made the same examination, that the house and lot [**6]  were worth, and would sell for, $ 6500, and that the lot alone was worth about $ 4500. The defendant gave in evidence, that the house and lot were seven years ago worth $ 4500. The plaintiff then prayed the court to direct the jury, that upon the statement of facts and evidence, he the plaintiff was entitled to recover. But the county court. [Nicholson, Ch. J. and Hollnigsworth, A. J.] refused to give the direction as prayed, but did direct the jury, that to constitute usury there must be a lending and borrowing at a greater rate of interest than six per centum per annum. When these facts occur, and are established, no device or stratagem whatever can evade the statute. If the contract is in the shape of a bond, note, mortgage or annuity, it matters not, the borrowing and lending at an illegal interest contaminate the whole transaction, and make it void. Where an annuity is sold, the mere circumstance of giving the privilege of redemption does not of itself constitute usury; but in the sale of an annuity, whether there is or is not a privilege of redemption, yet if the original contract was in fact a borrowing and lending, and the sale of the annuity only a device to avoid the statute,  [**7]  it is nevertheless usury. All the cases in the books refer to the original intention of the parties; and if in the case now before us, the jury should be of opinion that the original transaction was a borrowing and lending, and the deeds, executed in the particular form in which they appear, merely as a device to evade the statute, then the contract is usurious, and the deeds void. The circumstance of there being no covenant or bond by Belton for the repayment of the money does not vary the case; he had already given a pledge more than equivalent to the money advanced, if the jury believe the testimony in the case as to the value of the property. Tyson agreed to forbear in making absolute his title to the thing pledged, for five years, on condition of Belton's paying $ 525 annually, and the obligation to redeem, though not formally expressed in the deed, is virtually in the value of the house and lot. The intention of Belton to borrow is palpable--it is admitted in the case; that of Tyson to lend is not admitted; and the fact of his intention to lend, and to use this form of conveyance as a colouring, must exist in order to constitute usury. It is a fact which the court cannot infer,  [**8]  as not being within our province, but must be found by the jury; and if they believe this fact, their verdict must be for the plaintiff. The plaintiff excepted to the refusal of the court to give the direction by him prayed, and the defendant excepted to the direction which the court did give.

2. The plaintiff then insisted, that the money which the defendant furnished to Belton was on loan, and not as money furnished for the purchase of the lot of ground above mentioned. The defendant then prayed the direction of the court to the jury, that to constitute a loan it is necessary for the jury to be convinced that it was the agreement between Belton, and him the defendant, that the principal was at all events to be repaid to him the defendant in money. But the county court directed the jury, that if the agreement between the parties was, that Tyson's title to the house and lot should become absolute at the end of five years unless the money was then repaid, and the original agreement contemplated an accommodation of money by way of loan by Tyson to Belton for that time, that then the method of satisfying Tyson the money originally advanced, did not alter the nature of the transaction.  [**9]  The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin, Harper and Purviance, for the Appellant.

1. Upon the motion in arrest of judgment, and irregularity in the pleadings in not joining issues to the replications to the first and second pleas, and there being a verdict only upon the issue joined to the replication to the third plea, they cited Bac. Ab. tit. Verdict, (M.) 1 Inst. 227, and Smith vs Raymond, 1 Day's Cases, 189.

2. Upon the question of usury in the bills of exceptions, they cited the act of 1704, ch 69. Murray vs. Harding, 2 W. Blk. Rep. 862. S. C. 3 Wits, 396. Lawley vs. Hooper, 3 Atk. 278. Green vs. Suasso, 2 Atk. 231. Irnham vs. Child, 1 Bro. Ch. Rep. 94. Spurrier vs. Mayoss, 1 Ves. jr. 529. S. C. 4 Bro. Ch. Rep. 28. Vin. Ab. tit. Usury, (E.) Bac. Ab. tit. Usury, (C.) Tate vs. Wellings, 3 T. R. 531; and Floyer vs. Edwards, 1 Cowp. 115.

Winder, for the Appellee. 1. Upon the first question he cited Bac. Abr. tit. Verdict. (M) (X.) Hill vs. Lewis, 1 Salk, 1SS; and Rex vs. Hayes, 2 Stra. 844, 845.

6. Upon the second question, Bac. Abr. tit. Usury, (C.) Hedgeborough [**10]  vs. Rosenden, 1 Vent. 254. Morse vs. Wilson, 4 T. R. 353. Lowe vs. Walter, 2 Doug. 740; and Turner vs Bouchell et. al. (ante 99.) 

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J. GANT and EARLE, J. concurred CHASE, Ch. J. dissenting.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*113]  BUCHANAN, J. I perfectly agree in opinion, on both of the bills of exceptions, with the judges before whom this cause was tried in the court below.
On a question of usury it is the view, the intention of the parties, which gives character to the transaction, and no matter what the form, where the real truth and substance 

 [*114]  is a loan of money--a lending on one side, and a borrowing on the other, at more than an interest of six per centum per annum, no shift or device can take it out of the act of assembly.
In the investigation of such questions the original intention of the parties must often be come at by matter de hors the particular instrument of writing executed between them, otherwise the act of assembly would be a dead letter; and in this case I think the court below did right in leaving it to the jury to decide upon the whole of the evidence, whether in the true contemplation [**11]  of the parties, the transaction in question was a real sale by one, and a purchase by the other; or whether it was only colourable to hide an usurious loan; and in directing them to give a verdict for the plaintiff below, if they found it to be the intention of Tyson and Belton, the one to lend, and the other to borrow--the amount of the rent reserved being equal to an interest of fifteen per centum per annum.
As to the second bill of exceptions. A stipulation to repay the principal in money is not necessary to constitute a loan; it is enough if the principal is secured, and not bona fide put in hazard; and it matters not what the nature of the security is, if it is sufficient. As if a man borrows £  20 to pay £  10 for interest for one year, and pawns goods to the lender of the value of £  100, on a stipulation in writing by the lender, to return the goods on payment by the borrower of £  30, with interest thereon--this is an usurious lending, though there is no undertaking by the borrower to repay the principal. So in this case the principal sum advanced by Tyson was secured by the deed from Belton. The true ground is, not that there must be a stipulation [**12]  to repay the principal at all events in money, but that it must in some way be secured, as distinguished from being put in hazard; but whether it is secured by pawn or pledge, or a conveyance of land, or is by agreement to be returned in lands, goods or money, is not material. If the principal is secured, and the interest reserved is more than the law allows, it is usury.
The position contended for, "that whenever it is in the power of a borrower of money to pay the principal within a limited time without interest, it is not usury," I conceive has no bearing upon this case; but is only applicable to cases in which the increased sum is stipulated for 

 [*115]  nominae penae, and there is no immediate reservation of interest, as in the case of a man lending £  20, to receive £  40 at the end of two years, or only £  20 if paid at the end of the year, in which the payment of the smaller or larger sum is intentionally and expressly by the contract placed at the option of the borrower.
Every case of usury must depend on its own circumstances, and the intention of the parties, when it can be come at, and not the words used, must govern. [The judge here stated the facts, and [**13]  then continued.]
The intention to negotiate a loan has been found by the jury, whose province it was to inquire into the meaning of the parties; and so far from the rent being reserved nominae penae, or its appearing to have been the intention of the parties that Belton might discharge himself of all rent by payment of the principal before any rent had accrued, that is, before the end of the first quarter, it seems clearly to have been their understanding and intention that he should not; for the stipulation in the lease is to reconvey on payment of the principal, together with all arrearages of rent, which shows that they contemplated an accrual of rent, and that the money was not to be paid before such accrual.
No matter, therefore, what the strict legal construction of the lease from Tyson to Belton is, that cannot regulate the case, if it was not the intention of the parties, that Belton might, by paying the principal at any time before the expiration of the first quarter, discharge himself from the rent up to the time of such payment; and that intention was matter for the jury.
With respect to the matter in arrest of judgment--The not joining issue on the [**14]  first and second replications was healed after verdict, and the motion properly overruled.
GANT and EARLE, J. concurred.  

DISSENTBY:
CHASE 

DISSENT:

CHASE, Ch. J. As I differ from my brethren of the court, I am induced, from respect for their opinion, to communicate the reasons which impelled me to dissent from their judgment.
I concur in opinion generally, that every case of usury must be decided on its own circumstances.
To make a contract usurious there must be a loan of money, wares, merchandize, or other commodity, to be 

 [*116]  paid or restored to the lender at a higher rate of interest than the act of assembly allows. To constitute usury it is essential that the thing lent is to be restored.
In this case it was a conditional sale of land and houses. A power was given to the vendor to avoid the sale, by the payment of the consideration money at any time within five years. A lease was made of the same property by the vendee to the vendor, reserving a sum of money equal to fifteen per centum on the sum for which the property was sold. The rent was payable quarterly. It was optional in the vendor to return the money or not; and it he had returned it within three months, he would [**15]  have defeated the sale, and exempted himself from the payment of interest, or making any remuneration; so that, whether the money was to be returned or not, depended on the vendor, and on his opinion whether it would be most for his benefit to avoid the sale or note; it depended on the vendor whether any rent was to be paid. The inequality of price merely as such, cannot render the contract or sale usurious. The purchase was contingent, and defeazible by the vendor. The money was not to be repaid certainly, and at all events, nor was any rent or interest to be certainly paid. These ingredients are indispensably necessary to constitute usury.
It is the exclusive province of the jury to find facts; and it belongs to the court exclusively to decide the law arising on the facts found. It is necessary for the administration of justice, that the boundaries between the jurisdiction of the court, and the province of the jury, should be fixed. It appertains to the court to determine on the legal sufficiency of evidence to prove a fact in issue. As for instance, in an action of trover and conversion, conversion is the material fact to be found by the jury. Proof of a demand and refusal [**16]  is evidence legally sufficient on which the jury may find conversion. To constitute a valid feoffment, livery is indispensably necessary. The proof of a deed of feoffment, and possession under it for a length of time, is legally sufficient for the jury to find livery. But proof of a demand would not authorise the jury to find the fact of conversion. So the proof of a deed of feoffment would not authorise the jury to infer livery, and find a feoffment, because the evidence is not legally sufficient. These are adduced as familiar instances, and of frequent 

 [*117]  occurrence, to elucidate the subject. A lending is one of the ingredients to constitute usury, and the jury must find that fact, and that fact cannot be found without evidence legally sufficient to find it. The facts stated, negative a lending. Tyson, when applied to, refused to lend money on mortgage, but said he would purchase the property, and give a lease of it on a rent equivalent to the interest, at the rate of fifteen per centum on the purchase money. If a bona fide transaction, and there appears no evidence in the case to impeach it, the inequality of price cannot contaminate it; if it would, many of [**17]  the purchases in and about Baltimore would be rendered suspicious. The rent to be paid being fixed, a certain per centum, with reference to the purchase money, cannot pollute it. Some of the witnesses prove the property worth $ 7500, others $ 6500, and others $ 4500. The aggregate amount of these sums, divided by three, will leave the sum of $ 6166, the price at which the property may be fairly estimated, which sum, at nine per centum, would produce $ 551. Ten per cent. is the lowest rate at which the rent of houses and lots is fixed. There must be some evidence to prove the fact of lending, and that what was done was a mere device to colour and disguise the transaction, which in itself was usurious. There is no evidence stated, legally sufficient, from whence the jury could infer a lending, and that the several conveyances were colourable, and devised to conceal a contract which was usurious. The jury cannot arbitrarily find facts, but there must be evidence in the case legally sufficient to warrant the deductions and finding of the jury.
For these reasons I am of opinion that the judgment of the court below ought to be reversed.
JUDGMENT AFFIRMED.  

16 of 38 DOCUMENTS 

CLARKE vs. HARRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 167; 1810 Md. LEXIS 37 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit, brought by the appellee against the appellant. The declaration contained two counts. The first count sets out a bill of exchange drawn on the 19th of October 1801, by A. Brown, on W. and T. Raikes & Co. of London, in favour of Clarke, (the defendant in the court below,) or order, for £  6500 sterling, and by him endorsed to Harris, the plaintiff, who endorsed it to G. Simpson, the cashier of the Bank of the United States, and by him endorsed to F. Baring & Co. Averment, that F. Baring & Co. on the 19th of January 1802, at London, to wit, &c. caused the bill of exchange to be presented to W. and T. Raikes & Co. for their acceptance, but they neglected and refused so to do, and the bill of exchange was protested for nonacceptance, of which premises Clarke afterwards, on the 1st of July 1802, had notice. That F. Baring & Co. afterwards, when the bill became due and payable, to wit, on the 23d of March 1802, caused the bill to be presented to W. and T. Raikes & Co. for payment, but they did not then, or any other time, pay the same, but neglected and refused so to do, and the bill was protested for nonpayment. That by [**2]  reason of the premises the plaintiff, as endorsee of the bill, was obliged to pay, and did pay, the sum of money mentioned in the bill, together with reexchange, interest, damages and costs, amounting, &c. to £  11,233 6 6 current money, of all which premises, Clarke, (the defendant,) afterwards, &c. had notice, by reason whereof he became and was liable to pay, &c. and being so liable, he in consideration thereof afterwards, &c. undertook, and then and there faithfully promised the plaintiff to pay, &c. The second count was for money laid out, paid and expended, by the plaintiff, for the defendant, &c. The general issue was pleaded.

1. The plaintiff at the trial proved that A. Brown was a person using trade and commerce, and carrying on merchandize at the city of Baltimore, on, after and before, the 19th of October 1801, and that he drew his bill of exchange for £  6500 sterling on W. and T. Raikes, merchants of London, by the names of W. and T. Raikes, & Co. in favour of Clarke, the defendant, or order. And that Clarke afterwards endorsed the bill of exchange to Harris, or order, and that Harris afterwards endorsed it to G. Simpson, cashier and agent of the Bank of the United [**3]  States, or order, for and on account of the president, directors and company, of the Bank of the United States; and further, that Simpson afterwards, as agent of the president, directors and company, of the Bank of the U. S. endorsed the bill to F. Baring & Co. or order, and that afterwards F. Baring & Co. caused the bill to be protested for nonpayment thereof, viz. on the 23d of March 1802. And the plaintiff offered to prove by the oath of D. Harris, for that purpose sworn to the jury, that the original bill of exchange, together with an original protest thereof for nonacceptance, and protest for nonpayment thereof, came to his hands as agent for the Bank of the U. S. and were respectively delivered by him to the district attorney of the U. S. for the purpose of instituting suits on the bill against Clarke, (the defendant,) and Harris, (the plaintiff). He also offered in evidence the records of proceedings in the circuit court of the U. S. in and for the Maryland district, against Harris and Clarke respectively, at the suit of G. Simpson. And offered to prove, that the bill of exchange in those records mentioned is the same bill offered in evidence in this cause; and that Simpson,  [**4]  the plaintiff in the records, is the same Simpson who is cashier and agent of the Bank of the U. S. and that Harris, the plaintiff in this suit, and Clarke the defendant in this suit, are respectively the same persons who were defendants in the records. He then offered to prove by D. Harris, that the protest for nonacceptance of the bill of exchange is not in his possession, nor in the possession of the district attorney of the U. S. nor in the office of the clerk of the circuit court of the U. S. among the other papers, but is lost or mislaid; and therefore offered, under such circumstances, to be permitted by parol to prove the protest for nonacceptance. To the admissibility of which evidence the defendant objected. But the county court, [Nicholson, Ch. J. and Hollingsworth, A. J.] were of opinion, that the testimony was proper and competent to prove the protest for nonacceptance. The defendant excepted.

2. The plaintiff then offered to give in evidence by D. Harris, the cashier of the Office of Discount and Deposit, that in the usual course of the post from Philadelphia to Baltimore, he received a letter from G. Simpson, cashier of the Bank of the U. S. dated the 3d of April [**5]  1802, enclosing protests for nonacceptance of the bill of exchange, and that he, on the day he received the same, called on the defendant, and gave him verbal notice of such protest; and shortly after, be believes on the 8th of the same month, for greater certainty, he made out a written notice to be sent to the defendant of the protest, and copied such notice in a book, which the witness produced to the court, and that the defendant did afterwards admit he had received the written notice. The plaintiff further offered to give evidence by D. Harris, that he received a letter from Simpson, dated in Philadelphia the   day of   1802, containing protests of the bill of exchange for nonpayment, and that he received the same in the usual course of the post from Philadelphia to Baltimore; and that on the day of receiving the same, he called on the defendant, and gave him verbal notice of the last protests; and that on the same or the next day he, for greater certainty, made out a written notice to the defendant, and delivered the same to L. G. to be delivered to the defendant, and that the witness copied this notice in a book, then produced by him; and did offer to prove by the witness,  [**6]  that the defendant did afterwards acknowledge to him the receipt of the written notice. To this testimony, the defendant objected, because the notices being in writing, and no notice having been given by the plaintiff to the defendant to produce them, no evidence ought to be given of their contents. But the county court, [Nicholson, Ch. J. and Hollingsworth, A. J.] were of opinion, that such evidence was admissible to be given to the jury; and the same was accordingly given. The defendant excepted.

3. The plaintiff then gave in evidence, that the bill of exchange was made by Brown for the sole purpose of being discounted to raise money for his own use; and that for enabling him to do so the defendant, at the request of Brown, and for the sole purpose of enabling him to raise money thereon, but without any other consideration, did endorse the bill in blank, and immediately delivered it back, so endorsed, to Brown, but at that time had no knowledge or information that the bill was to be endorsed after him by the plaintiff, or that Brown intended to apply to the plaintiff to endorse the bill. And further gave in evidence, that Brown, after receiving back the bill so endorsed by [**7]  the defendant, carried it to the plaintiff, and requested him to endorse the bill after the defendant, for the purpose of giving it further credit, and of thereby enabling him, Brown, to raise money on it for his own benefit. That the plaintiff, in compliance with this request, and for the purpose of giving additional credit to the bill, and to enable Brown to obtain money thereon for his own use, did endorse the bill in blank, and immediately delivered it back, so endorsed, to Brown, in blank, who soon after sold it to G. Simpson, cashier of the Bank of the U. S. for his Brown's own benefit. That at the time of the endorsements no consideration had taken place between the plaintiff and defendant respecting the bill or endorsements, or respecting any endorsement to be made by them, or either of them, for Brown, or for his use or benefit; and that the plaintiff received no consideration for the endorsements, except such as might arise in law from the previous endorsement of the defendant, and from the making of the bill by Brown, and that the bill was never delivered to the plaintiff or to the defendant Brown, except for the purpose before mentioned. The plaintiff also gave in evidence,  [**8]  that the bill having been sold to Simpson, as before mentioned, was duly presented to the drawee for acceptance and payment, and not having been accepted or paid, was duly and regularly protested, for nonacceptance and nonpayment; of which protest notice was duly and legally given by Simpson to Brown, and to the plaintiff and defendant, and payment thereof immediately demanded by Simpson of Brown, who failed to pay it. Whereupon, notice of the failure was duly given by Simpson to the plaintiff and defendant, and payment of the bill was demanded of them by Simpson. The plaintiff further gave in evidence, that he and the defendant, being so called on for payment of the bill, did mutually agree that each of them should pay one half of the sum of money due thereon, but that the right of the plaintiff to recover from the defendant, as the prior endorsor of the bill, the sum so by the plaintiff to be paid, with interest, should not in any manner be affected by the agreement. And that the plaintiff did, in pursuance of that agreement, on the 12th of December 1802, pay to Simpson, cashier of the Bank of the U. S. the sum of $ 15,206 67, being one half of what was then due on the bill. The [**9]  defendant then prayed the court to direct the jury, that the plaintiff, if the jury should believe the facts so offered in evidence by him, is not entitled in law to recover in this action the sum so paid by him to Simpson, cashier of the Bank of the U. S. Which opinion. [Nicholson, Ch. J.] refused to give. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Shaaff, W Dorsey, Winder, and S. Chase, jr. for the Appellant, contended, 1. That the declaration was defective, because it was not averred in the first count that the defendant had notice of the protest of the bill of exchange for nonpayment; and that the plaintiff took up the bill by paying it, &c. They cited Reshton vs. Aspinall, Doug. 683.

2. That if this count is defective, there being a general verdict, it would not be cured, even if there should be a good count in the declaration. They cited Marriot vs. Lister, 2 Wils. 141. Holt vs. Scholefield, 6 T. R. 691; and Baldwin vs. Elphinston, 2 W. Blk. Rep. 1037.

3. That the plaintiff could not recover on the money count stated in the declaration, they cited Chitty on Bills, 378, and Gibson [**10]  vs. Minet, 1 H. Blk. Rep. 602.

On the first bill of exceptions they contended, 1. That it was not competent for the plaintiff below to give in evidence the records of the circuit court, because they were between different persons than the parties in this action.

2. That no parol evidence ought to be admitted to prove a protest of a bill of exchange for nonacceptance or non-payment.

On the first point, they referred to Peake's Evid. 34, 85. Bryden vs. Taylor, 2 Harr. & Johns. 296. Gittings's Lessee vs. Hall, 1 Harr. & Johns. 18; and Davis's Lessee vs. Batty, Ibid 264. On the second point, they cited Peake's Evid. 107; and Shaw vs. Markham, Peake's N. P. 165.

On the second bill of exceptions, they contended, 1. That parol evidence that notice in writing had been given to the defendant, ought not to have been admitted, without a previous notice to the defendant to produce such written notice.

2. That notices of the nonacceptance, and nonpayment of the bill of exchange, were not given by the plaintiff to the defendant, but by a third person. On this point they cited Tindall vs. Brown, 1 T. R. 167; and Ex Parte Barclay, 7 Ves. 597.

Key, Harper, and T. Buchanan,  [**11]  for the Appellee, as to the defects in the first count in the declaration, referred to the act of 1809, ch. 153, s. 2.

On the first bill of exceptions, they cited Peake's Evid. 97, and Chitty on Bills, 239, 240.

On the second bill of exceptions, they cited Chitty on Bills, 239, 240. Stedman vs. Gooch. 1 Esp. Rep. 5. Kufh vs. Weston, 3 Esp. Rep. 54. Saunderson vs. Judge, 2 H. Blk. Rep. 509. Chapman vs. Lipscombe, 1 Johns. Rep. 296; and Gotlieb vs. Danvers, 1 Esp. Rep. 455.

On the third bill of exceptions, they referred to Wood vs. Repold, (ante 125.) 

JUDGES:
The cause was argued at the last term before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J. and was reargued at the present term before CHASE, Ch. J. POLK, BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*172]  THE COURT agreed with the County Court in the opinions given in the several bills of exceptions.
JUDGMENT AFFIRMED.  

17 of 38 DOCUMENTS 

KENNEDY vs. M'FADON & CATON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 194; 1810 Md. LEXIS 43 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for money had and received; for money laid out and expended; for money lent and advanced; for work and labour as an agent, &c. and a quantum meruit for work and labour, &c. brought by the plaintiff, (now appellant,) against the defendants, as surviving partners of William M'Fadon, & Co. The general issue was pleaded; and at the trial the plaintiff offered in evidence, that the defendants, and a certain William M'Fadon, now deceased, and a certain Richard Lawson, also deceased, together with the plaintiff and Henry Child, Howell Price and Richard Price, were the joint owners and proprietors of the brig called The Betsy, and her cargo, in the following proportions, to wit: Richard Caton one-fourth part; John M'Fadon and Richard Lawson, now deceased, as copartners in trade under the firm of John M'Fadon, & Co. one-fourth part; William M'Fadon, now deceased, Richard Lawson, also deceased, and the aforesaid John M'Fadon, as copartners in trade under the firm of William M'Fadon, & Co. one other fourth part; Henry Child, Howell Price and Richard Price, as copartners in trade under the firm of Child, Price, & Co. one-eighth [**2]  part; and the plaintiff the remaining eighth part. The plaintiff also offered evidence, that the said brig Betsy, and her cargo, owned as aforesaid, sailed from the port of Baltimore on a voyage to the Island of St. Domingo, where the plaintiff then resided, and to whom the said vessel and cargo were consigned for sale and disposal on their arrival; that in the prosecution of the above mentioned voyage, the vessel and cargo were captured and seized as prize, by a privateer commissioned and authorised to cruise by the French government; that they remained in the possession of the captors for a few days, until they were recaptured by an English ship of war, and afterwards carried into Kingston, in the Island of Jamaica; that immediately thereafter proceedings were instituted in the vice-admiralty court established in that island, and were continued, until by a final decree of the said court, the said vessel and cargo were restored to the above named proprietors thereof, free from and exonerated of the claim of salvage made by the recaptors; that the recaptors interposed an appeal from the sentence of the vice-admirally court, and prayed that the same might be brought before the lords [**3]  commissioners of appeals in prize causes in Great-Britain, and the appeal was accordingly allowed, and the property so liberated ordered to be restored to the proprietors, or their agents claiming on their behalf, on giving security to abide the final decree of the lords commissioners of appeals. The plaintiff also offered in evidence, that John Campbell and Francis Whittle, of the Island of Jamaica, at the instance and request of the above mentioned owners, became the security in the stipulation so as aforesaid awarded to be given by the said owners on the restoration of the Betsy and her cargo. That the vessel and cargo were afterwards sent to the port of Baltimore, and came to the bands and possession of Richard Caton, and the said John M'Fadon and Richard Lawson, now deceased, who disposed of the same. That the sentence and proceedings of the vice admiralty court in Jamaica were afterwards reversed by the lords commissioners of appeals, and a decree was by them made that salvage should be paid to the recaptors, out of the brig and cargo, to the amount of $ 15,000. That Campbell and Whittle were compelled to pay to the recaptors, in consequence of their having become security in [**4]  manner above mentioned, the said sum of money, being the amount awarded as salvage. That Campbell and Whittle, after having paid the last mentioned sum of money, remitted an account thereof to the above named owners, requesting the reimbursement of the sum they had thus been compelled to pay in consequence of their having become security; that not being able to obtain the payment of the said sum of money, they instituted a suit in the circuit court of the United States for the Maryland district, against the above named owners, and obtained a judgment thereon; that in the interval between the payment of the moneys by Campbell and Whittle, for the decree of salvage before recited, and the institution of the suit by Campbell and Whittle, for the recovery of the said sum of money, the defendants, Richard Caton and John M'Fadon, became bankrupts, within the view and meaning of the law of the United States, then existing on that subject, and obtained a regular certificate of discharge of all debts due by them antecedent to the act of bankruptcy on which the commissions issued, by which they were respectively declared bankrupts; that the plaintiff, in pursuance of the said judgment, being [**5]  the only solvent person of the owners above named, paid and satisfied the whole amount of the said judgment; and that the present suit is brought for the recovery of the proportion of the said money which the defendants ought in justice and equity to contribute. He further offered in evidence to the jury, that there was nothing due from him to the defendants on account of their joint adventure in the said brig and cargo. The defendants then offered in evidence, that at the time of the sailing and capture of the brig Betsy, they, with the plaintiff, and the other owners above mentioned, were engaged as copartners in the above mentioned proportions, in many other mercantile adventures and speculations, which continued for several years; that on the whole of these speculations and adventures, the defendants have always claimed, and still do claim, a considerable balance to be due to them from the plaintiff, and that no liquidation or settlement between the said joint owners, or any of them, hath yet taken place of the said speculations, adventures and claim, or of the business of the brig Betsy, her cargo, capture or salvage aforesaid. The defendants them, by their counsel, prayed the [**6]  opinion of the court, and their direction to the jury, that if they believe all the matters so offered in evidence by the plaintiff and defendants, the plaintiff is not entitled in law to recover in this action. Of which opinion was the court, [Nicholson, Ch. J. and Hollingsworth, A. J.] and so directed the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin, for the Appellant.

Harper and Winder, for the Appellees. They argued that the plaintiff and defendants were partners, and that one partner could not sue another in a court of common law, where there was no liquidated balance ascertained to be due.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, GANTT, and EARLE, J. GANNT, J. dissented.  

OPINION:

 [*197]  THE COURT concurred with the County Court in the opinion in the bill of exceptions.
GANTT, J. dissented.
JUDGMENT AFFIRMED.  

18 of 38 DOCUMENTS 

CARROLL'S Lessee vs. MAYDWELL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 292; 1812 Md. LEXIS 5 

December, 1812, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of ejectment, brought to recover a tract of land called The Addition, otherwise called Haile's Addition, otherwise called Addition. The defendants, (now appellees,) took defence on warrant, and plots were made. 1. The plaintiff at the trial, gave in evidence, the certificate and patent of The Addition, surveyed on the 10th of January 1701 for, and granted the 10th of October 1704 to Nicholas Haile; and also the will of Nicholas Haile, the patentee, dated the 27th of February 1729, containing, among others, the following devises: "Item. I will to my beloved wife Frances Haile, my now dwelling plantation called part of Merryman's Lot, and my new plantation called Haile's Addition, to her and for her use, without molestation, during her natural life; and after her decease to my son Neale Haile, and my daughter Mary Haile. Item. I will to my son Neale Haile my now dwelling plantation, which is called part of Merryman's Lot, to him and his heirs for ever; also I will that my son Neale Haile, to have part of that tract of land called Haile's Addition, adjoining to my now dwelling plantation, and to began at a great stone standing by [**2]  the great run of this tract, and to run with a straight line to a bounded black oak standing on the land called Haile's Addition, to my son Neale Haile, and his heirs lawfully begotten, for ever; but and if he die without issue lawfully begotten, then all this land to the next of kin, Item. I also will that my eldest daughter Mary Haile, shall have all the remainder part of that tract of land called Haile's Addition, to her and her heirs of her body lawfully begotten for ever; but and if she die without issue lawfully begotten, then that land to the next of kin." He also gave in evidence a deed tripartite, dated the 11th of April 1771, between Neale Haile, the devisee in the said will, on the one part, and Joseph Ensor of the other part, and William Cooke of the third part, being a deed leading uses for suffering a common recovery for docking, destroying and extinguishing, all estates tail, and all reversions, remainders, thereupon expectant or depending, of and in 105 acres of land, lately the dwelling plantation of Nicholas Haile, deceased, being part of a tract or parcel of land called Merryman's Lot, lying in Baltimore county; also 30 acres of land lying in the same county, being [**3]  part of a tract or parcel of land called Haile's Addition, adjoining to the said dwelling plantation of Nicholas Haile, and which were devised to the said Neale Haile by his father Nicholas Haile; and for limiting and assuring the same unto and to the use of the said Joseph Ensor, his heirs and assigns," &c. "The said recovery to ensure, and the recoverer to stand seized of the premises to the use of the said Joseph Ensor, his heirs and assigns, for ever." And also a common recovery suffered of the said lands, by Neale Haile to Joseph Ensor, in the provincial court at April term 1771, in pursuance of the above mentioned deed. He also gave in evidence, that the land called Haile's Addition, in the said will, deed, and common recovery mentioned, and the land called The Addition in the said patent mentioned, is the same land, and that it was and is commonly known by the name of Haile's Addition. And also gave in evidence the plots in this cause; and that the locations made thereon by him were true. He also gave in evidence a deed of indenture from Joseph Ensor, in the common recovery mentioned, to the lessor of the plaintiff, for the said lands, dated the 27th of June 1771. The defendants [**4]  then gave in evidence, by consent, the deposition of Benjamin Long, taken in a former action relative to the lands claimed in this action. This deposition, (taken on the survey in the case of Merryman and others against Maydwell, and sworn to in open court on the 15th of November 1788,) states, that he the deponent, (aged 71 years,) bought a tract of land called The Forrest, of W. Worthington, of the quantity of 200 acres; that William Carter agreed with the deponent for half the said land, on condition that the said Carter paid to Worthington £  10 sterling; before the land was made over to the deponent, Carter exchanged his part with Neale Haile for the land that said Haile then lived on, with his mother, which is the land in dispute. That then Carter moved from the place he then lived to the place that he had of Neale Haile, and Neale Haile moved to the place he had of Carter. That he understood from Haile that he gave Carter a bond of conveyance for the said land. That Haile, about 8 or 10 years after the exchange, told the deponent he did know whether he would make over the land to Carter, as he thought the land was worth more than the penalty of the bond. That Carter, a few months [**5]  before his death, told the deponent he never gave Haile liberty to make over the said land to Joseph Ensor. That the deponent assisted to build the house shown to the sheriff and surveyor, which house Carter moved into and lived with Neale Haile's mother, until he built a house for himself; and that Carter lived at the said place in the hard winter, which the deponent thinks was about 1740, and that he never understood but that the said Carter was in quiet and peaceable possession, until his death. The defendant also gave in evidence, that Frances Haile, the wife of Nicholas Haile, the devisor and patentee, in the said will mentioned, was alive and in possession of the said lands, which are part of the same that were devised to her by the will of Nicholas Haile, during her life, at the time when the said common recovery was suffered, and long after. And that William Carter, owning two tracts of land in Baltimore county, called The Forrest or The Forrest Resurveyed, did in the fall of the year 1739, exchange and swap the said lands with Neale Haile, for those parts of Merryman's Lot, and The Addition, or Haile's Addition, which were devised to him by the will of Nicholas Haile, and [**6]  that each of the said parties respectively delivered to the other the possession of the lands which they had thus exchanged, in the latter end of the fall of 1739, or the beginning of the year 1740. That William Carter, and his family, lived in the same house with Frances Haile, the devisee for life under the will of Nicholas Haile, during that winter, and in the spring he built himself a house on said land, and began to clear and cultivate the same, and continued in the undisturbed possession of the same from that time until about the year 1778, with the approbation and consent of Frances Haile, the tenant for life, when he removed away, and Joseph Ensor, under a contract of purchase from Carter, entered into possession of the place. That Joseph Ensor, if he ever paid any part of the consideration which he was to have paid to Carter for the said land, altogether failed to pay a considerable portion of it. That about the time of the death of Joseph Ensor, which happened sometime about the year 1779 or 1780, Carter returned and took possession of the said land again; and that Carter, and the defendants claiming under him, have been in the peaceable possession of the lands, for which [**7]  this ejectment is brought, from that time till the institution of this suit. The plaintiff then further gave in evidence, the deposition of George Chiles, taken by consent, and admitted in evidence, and all and singular the matters therein contained, (subject to the same legal exceptions which might be made to it, if the facts were given in evidence by the deponent in person,) to prove that Frances Haile did surrender her life estate in the said lands to Neale Haile, at or before the time of suffering the said common recovery, and that Joseph Ensor entered into and held possession of the said land, under the said common recovery, by and with the assent of Frances Haile, and did pay to her a valuable consideration for the said surrender and assent; and that the said common recovery ws suffered, and the said possession under it taken and sold, by and with the assent of William Carter, in the said deposition of Benjamin Long mentioned, under whom the defendants claim. This deposition of George Chiles, aged upwards of 74 years, was taken on the 4th of May 1807, and stated, "that he was well acquainted with a parcel of land called The Addition, or Haile's Addition, in Baltimore county,  [**8]  which was part of the dwelling plantation of Nicholas Haile, deceased, and was by him devised, as this deponent understood, to his son Neale Haile; and that he was also well acquainted with the said Neale Haile, and with Frances Haile the widow of the said Nicholas Haile, deceased, and with Joseph Ensor, late of Baltimore county, deceased, and William Carter, also of the said county, deceased, whose daughter he this deponent married. That he knew the tract of land in Baltimore county called Merryman's Lot, adjoining the tract called The Addition, or Haile's Addition; and that the dwelling plantation of Nicholas Haile was chiefly on the tract called Merryman's Lot, and included also a part of the tract called The Addition, or Haile's Addition; and that when he first became acquainted with the said lands, and the said Frances Haile, she lived in a house on Merryman's Lot, which was then said to have been the dwelling-house of her husband Nicholas Haile. That about 36 years ago he first became acquainted with William Carter, who then resided on the said dwelling plantation, and claimed it as his own under a purchase from Neale Haile; and he hath frequently heard Carter say that he had [**9]  never obtained a conveyance from Neale Haile, some difference having arisen between them respecting a tract of land which he had given to Neale Haile, in payment or exchange for the said plantation. That about two years or a year and a half after, he so became acquainted with Carter, he married the daughter of Carter, and about two years after his marriage, went to live with the said Joseph Ensor, as his overseer. That after living with Ensor in this manner one year, Ensor purchased from Carter the aforesaid dwelling plantation, consisting of part of Merryman's Lot, and part of The Addition, or Haile's Addition; immediately after which Carter put Ensor into possession of said plantation, and removed away from it; that Ensor thereupon put this deponent on said plantation as his overseer, with two horses, one cow, and one slave, to cultivate it. That he does not know what sum Ensor agreed to pay for the said plantation, but perfectly recollects, that at the time of the purchase he paid and delivered to Carter a negro woman slave in part payment, but does not remember at what price. That about one year, or something less, after he went to live on said plantation as overseer, Ensor being [**10]  desirous of obtaining a conveyance of the said land and plantation from Neale Haile, applied to Carter for his consent that such a conveyance should be made, to which Carter consented, observing that Haile's deed or conveyance would be as good as his own; on which Ensor answered, that it would be better. That this deponent was called as a witness to this conversation, which took place at Ensor's house. That Ensor at the same time informed Carter that Haile demanded from him £  80 for making the said conveyance, which he thought very hard, as the land had already been sold to him; to which Carter replied, that he could not help it; and that he Ensor and Haile must settle that matter between them. That soon after this transaction, Neale Haile came to the house of Ensor for the purpose of going with him to Annapolis to make the above mentioned conveyance. That Frances Haile, who then resided on the said plantation, and in the house which had been her said husband's dwelling house, as this deponent always understood, and who was then, as this deponent understood and believes, upwards of 90 years old, went with them to Baltimore-town, on their way to Annapolis, for the purpose, as this [**11]  deponent understood, of making over, before a magistrate, her right to the said land and plantation, so as to enable Neale Haile, her son, to convey it to Ensor. That this deponent did not go before the magistrate, but knows that Neale Haile, Ensor and Frances, did go together for the above purpose, as they said; and that this deponent's wife, who was the granddaughter of Frances, together with several other of her grandchildren, did accompany her. That they went, as this deponent understood, before William Aisquith, then a justice of the peace for Baltimore county, and now deceased. That this deponent saw them return, and understood from them that a paper had been signed by Frances, before the said magistrate, for the above mentioned purpose. That after their return Frances went back to her house; and Ensor and Neale Haile, with this deponent, and several other persons, then proceeded to Annapolis to have the conveyance completed, which however was not done at that time, which, as well as this deponent recollects, was in the fall of the year; and that in the spring following, they went again to Annapolis for the same purpose, when the said conveyance was executed, for which Ensor [**12]  agreed to pay Haile £  35, Haile having increased his demand from £  80 to £  35. That while Carter lived on the said plantation, after this deponent became acquainted with him, Frances Haile had a separate part of the land in her sole occupation, which she usually rented out; and that all the rest of the land was held and occupied by Carter. That when Carter sold to Ensor, and Ensor placed this deponent on the plantation, he took the whole of the land into his possession, and directed this deponent to pay her £  5 per annum, to go to mill for her, to bring and cut her fire-wood, and to render her other services of this nature, as long as she should live, and choose to remain there. That in pursuance of these orders he did, for three years, pay her £  5 per annum in necessaries, which he purchased for her use, and did perform for her the said services to the value, as he believes, of £  10 per annum more. That she always received the said payments and supplies, of which this deponent kept an account, but never heard her say, nor mentioned to her particularly, what they were for; nor does he know that the said directions were given to him by Ensor in consequence of any agreement with [**13]  her; and that at or about the end of the said three years, her house was burnt down, on which her son George Haile came and took her away; and after which the said payments, supplies and services, were discontinued, Ensor being then dead. That some time before the death of Ensor, and after they went to Annapolis the second time, when the conveyance was made by Neale Haile to Ensor, he heard Carter apply to Ensor for payment of the balance due to him for the said land, on which Ensor asked him how much was due, and he replied £  70; and that Ensor then said, that he could not pay till the fall, but would then discharge the whole debt. That after Ensor's death he remained on the said plantation about three or four years, as a tenant, and paid rent to the guardian of Ensor's sons; and that at the end of this time, Carter came and took possession of the place, alleging that £  70 of the purchase money was due to him from Ensor, or his heirs, and that he would keep the place till it was paid. That he does not recollect the year or precise time at which any of the above mentioned events took place, further than he hath stated above. And further, that when he, on going to live on the said [**14]  plantation, as above stated, took possession of the whole of it for Ensor, including that part which had before been solely occupied by Frances Haile, she made no objection thereto, nor did she ever afterwards object thereto, but always received the above mentioned payments and services as her right" The defendant then prayed the court to direct the jury, that the plaintiff had not made title to the lands in question. And the Court, [Nicholson, Ch. J. and Jones, A. J.] did direct the jury, that the common recovery was defective, there being no legal surrender of the life estate, and of course that the plaintiff had not made title, and could not recover in this action. The plaintiff excepted.

2. The plaintiff then gave in evidence, that Frances Haile died while Ensor, and those claiming under him, were in possession of the said lands. And the defendants gave in evidence, that Frances Haile continued in possession of the said land until the time of her death, which happened after the death of Ensor. The plaintiff then prayed the opinion of the court, and their direction to the jury, that the deed of indenture tripartite, of the 11th of April 1771, passed to and vested in Joseph [**15]  Ensor a base fee simple in the lands in the declaration mentioned; and that Neale Haile being now dead, and there being no proof of an entry into the said lands, or action to claim therefor by his issue, or any person claiming under them, the said base fee passed to the plaintiff's lessor by virtue of the said deed of indenture from Ensor to him, and will enable the plaintiff to maintain this action. This opinion the court refused to give. The plaintiff excepted.

3. The plaintiff then gave in evidence an indenture of and for the lands in the declaration mentioned, from Neale Haile the devisee in the will of Nicholas Haile, to Elijah Merryman and David M'Mechen, dated the 5th of September 1789, and also a deed of indenture of and for the said lands, from said David M'Mechen and Elijah Merryman, to the lessor of the plaintiff, dated the 1st of May 1794. The former of the said deeds recited, that Neale Haile, in the year 1771, did convey to Joseph Ensor, in fee simple, part of two tracts of land situate in Baltimore county, one called Merryman's Lot, and the other Addition, commonly called Haile's Addition. That the said Merryman and M'Mechen were appointed trustees of Joseph Ensor,  [**16]  an idiot, the son of the first named Joseph Ensor, by act of assembly, and the said lands were vested in them by the said act. That there were defects in the said deed from the said Haile to the said Ensor, and doubts whether the fee in the said lands was not still remaining in the said Haile; and for confirmation of the said title, and aid defects, and to bar the estate in tail, the said Neale Haile agreed to execute the said deed. He did, therefore, in consideration of the premises, and of five shillings, &c. grant, &c. the said lands, &c. unto the said Merryman and M'Mechen, in trust for the said Joseph Ensor, the idiot, and subject to a mortgage from the said Joseph Ensor to the lessor of the plaintiff. The defendant then gave in evidence an act of assembly, passed at April session 1783, ch. 13, appointing the said Merryman and M'Mechen trustees of the person and estate of Joseph Ensor, an idiot, the son and heir at law of the said Joseph Ensor, deceased. Whereupon the plaintiff prayed the direction of the court to the jury, that the said last mentioned deeds are good and operative in law to vest in the lessor of the plaintiff an estate in tee simple in the lands aforesaid. Which [**17]  opinion and direction the court also refused to give. The plaintiff excepted; and the verdict and judgment being for the defendants, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Key and Harper, for the Appellant, contended, on the first bill of exceptions, 1. That Frances Haile had not a life estate under the will of Nicholas Haile, but that Neale Haile took an immediate estate tail in possession. 2. That the common recovery was valid, because the life estate of Frances Haile, if she took such an estate, ought, in point of law, to be presumed to have been surrendered by her to Neale Haile, or to Carter, and extinguished; or that it should have been left to the jury for them to presume, whether or not there had been such a surrender, from the facts and circumstances disclosed in evidence. Upon the doctrine of presumption, they referred to Warren vs. Greenville, 2 Stra. 1129. Goodtitle vs. Chandos, 2 Burr. 1065. Earl vs. Baxter, 2 W. Blk. Rep. 1228. Mayor of Hull vs. Horner, Cowp. 104, 105. Eldridge vs. Knott, Ibid 214, 216. Wilkinson vs. Payne, 4 T. R. 469. England vs. Slade, Ibid 682. Doe vs. Sybourn, 7 T. R. 2, 3. Campbell vs. Wilson, 3 East, 297. The [**18]  King vs. The Inhabitants of Long Buckby, 7 East, 45. Daniel vs. North, 11 East, 371, 374, (note). Bull. N. P. 110. 1 Esp. Dig. 254. 2 Esp. Dig. 173. Beedle & Beard's case, 12 Coke, 4, 5; and Gittings's Lessee vs. Hall 1 Harr. & Johns 18.

The second bill of exceptions was waived.

On the third bill of exceptions, they referred to the act of 1782, ch. 23, under which a common deed of bargain and sale may dock an estate tail, and cited Laidler vs. Young's Lessee, 2 Harr. & Johns. 69. Jones et al. vs. Jones, ibid 281. Saunders vs. Simpson, 2 Harr. & Johns. 82, (note).

Martin and Winder, for the Appellees, on the first bill of exceptions, contended, 1. That Nicholas Haile devised a life-estate to his wife Frances Haile, with remainder in tail to his son Neale, a 2. That presumptions have always been made to confirm and not to disturb possession. That in this case there was not the requisite possession to lay the foundation for presuming a surrender. That the court were correct in not directing the jury, or in leaving it to them, to presume the surrender, even if they thought there had been one. It was for the court to say whether the facts found amounted in law to a surrender.  [**19]  They referred to Carroll, et al. Lessee, vs. Norwood, 4 Harr. & M'Hen. 287; and 2 Blk. Com. 150, 158.

a CHASE, Ch. J. The Court are satisfied that Mrs. Haile took a life-estate in the whole lands devised to her, and that Neale Haile, the son, took an estate tail in remainder.

On the third bill of exceptions, they contended, 1. That the conveyance to Merryman and M'Mechen was to them as trustees of Ensor, the idiot, and that they were not authorised by the act of April 1783, ch. 13, appointing them trustees, to part with the estate, except in the mode pointed out by that act. 2. That Neale Haile contracted with Carter by way of exchange; and that a tenant in tail could part with his estate by exchange; and that Carter, by the exchange with Neale Haile, obtained a legal estate in the lands. To prove that an exchange might be by parol, they cited Co. Litt. s. 62. Ferkins, s. 244, s. 279, s. 285. Co. Litt. 50, b, s. 64, 66, 51, a. 10 Vin. Ab. 128, pl. 4, 129, 132, pl. 12, 134, 138, pl. 1, 4, 5. Machil vs. Clerk, 7 Mod. 25. Jenkins, 124, 249; and The Stat. Frauds, 29 Car. II, ch. 3, s. 1.

Key and Harper, in reply, as to exchange of lands by parol, referred to Coke Litt.  [**20]  s. 62. 2 Blk. Com. 294, 297; and 4 BAc. Ab. 494.

Curia adv. vult.  

JUDGES:
The cause was argued at June term 1811, before CHASE, Ch. J. and BUCHANAN, EARLE, and JOHNSON, J.  

OPINIONBY:
CHASE 

OPINION:

 [*301]  CHASE. Ch. J. at this term, delivered the opinion of the court, stating that the court concurred with the County Court as to the opinions in the first and second bills of exceptions, but dissented as to the opinion in the third bill of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

19 of 38 DOCUMENTS 

THE BALTIMORE INSURANCE COMPANY vs. TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 198; 1810 Md. LEXIS 44 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Covenant on a policy of insurance on the cargo of a vessel which was captured, and the cargo condemned as being contraband of war. Evidence was given at the trial that a quantity of tin and shot were shipped on board the vessel by the captain, which were not mentioned in any of the ship's papers, or documented in any manner; that it was on board when the vessel was captured, and that its being on board was not communicated to the defendants, (the appellants,) before or at the time of executing the policy; also, that the plaintiff, (the appellee,) had no knowledge of it, it being concealed from him by the captain.

Nicholson, Ch. J. directed the jury, that as it was an open policy, in which the assured could only recover according to the value of his interest, and as his interest was proved and admitted greatly to exceed the amount insured, the warranty could not be extended by implication beyond the interest. If the tin and shot had been the property of the plaintiff, then being a part of the interest insured, it would have been embraced by the warranty; or if they had been put on board with the plaintiff's knowledge, then it would have been [**2]  his duty to have had them regularly documented, and for his neglect in this respect the policy might have been vitiated; being put on board, however, by the captain, with a fraudulent view, he was guilty of barratry, and this barratry, altho' possibly the remote cause of the loss, cannot exonerate the underwriters. Neither can they be excused by any alleged misrepresentation or concealment of facts. The representation, which was the foundation of the policy, does not state either vessel or cargo to be neutral; and if the insurers intended that no property should be put on board, but such as was neutral, they should have insisted on a representation to that effect, or should have included it expressly in the warranty. The defendants excepted, and appealed to this court, but at this term they dismissed their appeal.  

DISPOSITION:
APPEAL DISMISSED.  

OPINION:

 [*198]  APPEAL DISMISSED.  

20 of 38 DOCUMENTS 

DENT'S Adm'r. vs. SCOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 28; 1810 Md. LEXIS 7 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Assumpsit, brought by the appellee against the appellant on the 14th of March 1801. The declaration contained the following counts: First, "That whereas on the 15th day of April in the year 1794, at Baltimore county aforesaid, in consideration that Scott, at the special instance and request of Dent, in his life-time, would deliver to Dent 100 barrels of superfine flour, and 50 barrels of fine flour, at or before the 15th of July of the same year, he, Dent, in his life-time, then and there undertook and promised Scott to pay him the sum of $ 8 for each and every barrel of said flour, at two months next after the delivery thereof; and that he, Scott, confiding in the promise of Dent, so made by him in his life-time, afterwards, to wit, on the 15th of July 1794, at the county aforesaid, did deliver to Dent, in his life-time, 100 barrels of superfine flour, and 50 barrels of fine flour, whereof Dent in his life-time afterwards, to wit, on the same day and year last mentioned, at the county aforesaid, had notice; and by reason of the premises, and according to the said promise and assumption of Dent, so made by him, he, Dent, in his life-time, became [**2]  liable to pay, and ought to have paid, to Scott, the sum of $ 8 for each and every of the said 100 barrels of superfine flour, and 50 barrels of fine flour, at two months next after the 15th of July 1794, to wit, at" &c. Second. And whereas afterwards, to wit, on the same day and year first aforesaid, at the county aforesaid, the said Dent, in his life-time, accounted, together with the said Scott, of and concerning divers other sums of money before that time due and owing from the said Dent in his life-time, to the said Scott, and in arrear and unpaid, and upon that account he the said Dent was then and there found in arrear to the said Scott in other large sum of money, to wit, the sum of £  225 like money; and being so found in arrear, he the said Dent, in his life-time, in consideration thereof afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, took upon himself, and then and there promised the said Scott to pay him the said last mentioned sum of money, when he the said Dent should be thereto afterwards requested." Third. "And whereas afterwards, to wit, on the same dame day and year first aforesaid, at the county aforesaid, the said Dent, in his life-time,  [**3]  was indebted to the said Scott in other £  225 like money, for other 100 barrels of superfine flour, and 50 barrels of fine flour, before that time sold and delivered to the said Dent, in his life-time, and at the special instance and request of the said Dent; and being so indebted, he the said Dent, in his life-time, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, in consideration thereof assumed upon himself, and then and there promised the said Scott to pay him the said last mentioned sum of money when he the said Dent should be thereto afterwards required." Fourth. "And whereas afterwards, to wit, on the twentieth day of September, in the year eighteen hundred, at the county aforesaid, the said several sums of money being due as aforesaid, and then unpaid to the said Scott, by the said Dent, at the time of his decease, he the said Dent then being dead, he the said Simpson, to whom, together with a certain Hannah Dent, administration of all and singular the goods and chattels, rights and credits, which were of the said Dent, at the time of his death, were in due form of law committed, and the said Hannah then being deceased, and the said Simpson then [**4]  being surviving administrator as aforesaid, and then having in his hands unadministered assets of the estate of the said Dent, deceased, a large sum of money, to wit, the sum of £  1000 like money, at the county aforesaid, sufficient to discharge, and liable to pay, the said several sums of money due as aforesaid to the said Scott, and the said administration then being in full force and unrepealed, he the said Simpson, as administrator aforesaid, in consideration thereof afterwards, to wit, on the same day and year last aforesaid, at the county aforesaid, assumed upon himself, and then and there, as administrator aforesaid, promised the said Scott to pay him the said several sums of money when he the said Simpson should be thereto afterwards requested." The defendant pleaded three pleas--1. "And the said Simpson, by Philip Moore his attorney, comes and defends the wrong and injury whence, &c. and says that the said Dent, in his life-time, and the said Simpson, since his decease, did not, nor did either of them, undertake and promise, in manner and form as the said Scott hath above thereof complained against him the said Simpson; and of this he puts himself upon the country, and so [**5]  forth; and the said Scott in like manner, and so forth." 2. "And for further plea in this behalf as to the supposed promise in the said first count of the said declaration mentioned, the said Simpson, by leave of the court here first had and obtained, according to the form of the statute in such case made and provided, says that the said Scott, his action aforesaid against him to have or maintain ought not, because he says that the cause of action in the said first count in the said declaration mentioned, did not accrue to the said Scott, at any time within three years next before the day of suing out the original writ in this cause; and this he is ready to verify, wherefore he prays judgment if the said Scott his action against him the said Simpson to have or maintain ought, and so forth." 3. "And for further plea in this behalf as to the supposed promises in the second and third counts of the said declaration mentioned, the said Simpson by like leave," &c. "says, that the said Scott his action aforesaid against him the said Simpson to have or maintain ought not, because he the said Simpson says, that the said Dent, in his life-time, did not undertake and promise, in manner and form [**6]  as he the said Scott hath above thereof complained against him the said Simpson, at any time within three years next before the day of suing out the original writ in this cause; and this he the said Simpson is ready to verify: wherefore he prays judgment if the said Scott his action aforesaid against him the said Simpson to have and maintain ought, and so forth." The plaintiff entered a special demurrer to the 2d and 3d pleas, and assigned for causes of demurrer--1. That the defendant in his 2d and 3d pleas hath altogether omitted the words "comes and defends the force and injury when, and so forth." 2. That the defendant in his 2d and 3d pleas, hath plead the same, and the matters therein contained in bar, without beginning the same with a defence, and in the same pleas hath made no defence. The defendant joined in demurrer; and the county court at February term 1804, ruled the demurrer good. A verdict was given for the plaintiff on the issue to the first plea, and damages assessed, &c. judgment thereon de bonis intestatoris, si non, &c. From which judgment the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
W. Dorsey, for the Appellant. This is a plain case, in which [**7]  it is unnecessary to cite authorities. It is admitted that the defendant must take defence, this he does immediately on his appearance, and this record states that the defendant "comes and defends the force and injury when, and so forth, and prays leave to imparle," &c. This is a full defence, and it need not be repeated. In S Blk. Com. 296, it is said, that "it is incumbent on the defendant within a reasonable time to make his defence, and to put in a plea," showing that it is not necessary that the defence should be in the plea. Co. Litt. 127, is to the same effect. But if it is necessary that there should be defence taken in the plea, the plea might have been refused for that defect, but being accepted, it is made good, and the defect cannot be taken advantage of by special demurrer. Ferrer vs. Miller, 1 Salk, 217. It is admitted that defence must be taken in some part of the record. It has been done in this case on the appearance of the defendant, and also in his first plea. Every thing is admitted to give jurisdiction to the court. If the declaration contains four counts, then the fourth count has not been answered by the pleas of the act of limitations. Where there is a special [**8]  demurrer the first fault may be resorted to. Here it appears that the third count, if there are only three, is defective, for there are two distinct promises alleged in the same count; first the intestate's promises and then the administrator's. This is a form of pleading which is not allowed, as no one plea which the defendant could plead would answer the case. If it is considered that there is a fourth count, then no judgment can be given on it, because it is defective. Each count must be a full declaration of itself, and must not depend upon any other count. The fourth count speaks of several sums of money, referring to all the antecedent counts, so that take the count alone and there is no certainty in it; for each count must contain a distinct cause of action. 5 Bac. Ab. tit. Pleas and Pleadings, (B) 328, and the cases there cited. The fourth count is defective, and there is no consideration expressed in it to support a promise. This count was intended to take the case out of the act of limitations, but being defective, and there being a general verdict, the judgment must be reversed. The proper form of a declaration, on a promise made by an executor or administrator, may be seen [**9]  in Secar vs. Atkinson's Adm'x. 1 H. Blk. Rep. 102, 108, and 1 Harr. Ent. 179, 161, 162.

Kell, was to have argued for the Appellee.

Curia adv. vult.  

JUDGES:
The cause was argued at the last term before CHASE, Ch. J. BUCHANAN and GANTT, J. BUCHANAN, J., dissenting.  

OPINIONBY:
CHASE 

OPINION:

 [*32]  CHASE, Ch. J. now delivered the opinion of the court.
The court are of opinion, that the second and third pleas of the act of limitations were well pleaded, and that the court below erred in giving judgment for the plaintiff on the demurrer to those pleas.
The court are also of opinion, that the judgment on the verdict be affirmed with costs, the court being of opinion that the last count in the declaration is substantially good, having reference to the precedent counts, and which is founded on the consideration specified in the first, second and third counts in it, and having incorporated so much thereof in the same as is necessary to render that count valid in law.  

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, J. I am of opinion, that the causes assigned for demurrer to the second and third pleas of the defendant below, are not available in law, and that the court erred in giving [**10]  judgment for the plaintiff below on the demurrer.
Full defence was made before imparlance, and is again set out in the first plea; and after defence is once well 

 [*33]  made, it is not necessary to repeat it in every plea. Moreover, I think the fourth count in the declaration is bad. The cause of action is not sufficiently set out, and can only be ascertained by reference to the preceding counts, which reference shows that it is for the same sums of money mentioned in the other counts, and in fact blends the three preceding counts into one; whereas every count in a declaration should be distinct, and should set out a separate cause of action. I am therefore of opinion that the judgment ought to be reversed.
JUDGMENT AFFIRMED.  

21 of 38 DOCUMENTS 

WILSON vs. MITCHELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 91; 1810 Md. LEXIS 20 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of slander, brought by Alexander Mitchell, the appellee. The declaration contained four counts. After stating that the appellee had been, and continued to be, a merchant, and commission merchant, and a faithful buyer and seller of merchandize, &c. the first count of the declaration charged David Wilson, the appellant, with speaking the following false and scandalous words of the appellee, "that he sold goods and merchandizes on commission for a higher sum than he returned an account of sales for; and that he cheated his employer, by putting part of the money for which the goods sold, in his (the appellee's) pocket." The second count, after stating that the appellee had in his business aforesaid sold at Curacoa certain number of boxes of soap, it being part of the outward bound cargo of the sloop Delight, for and on account of a certain Marcus M'Causland, and the said Alexander, for the sum of five dollars and an half for each box, and had returned a true and faithful account of the sale to the said M'Causland, yet the appellant David, well knowing, &c. falsely spoke these words; "He (meaning the said Alexander,) sold the soap,  [**2]  (meaning the aforesaid boxes of soap,) at six dollars per box, but has returned an account of sales to Marcus M'Causland, (meaning the said Marcus M'Causland,) only for five dollars and an half." The third count charged that the said David, on the 10th of April 1801, voluntarily made a certain written paper, purporting to be an affidavit, and purporting to be sworn to before a certain G G P, and caused certain false statements of and concerning the said Alexander, in his business aforesaid, to be written, &c. in the following English words, viz. "And this deponent, (meaning thereby the said David,) further deposes and declares, that in the outward bound cargo of the sloop Delight, there was a certain quantity of American soap, which to his, (meaning the said David's,) certain knowledge, was sold at Curacoa by the said Alexander Mitchell, (meaning the aforesaid Alexander,) at six dollars current money of the U. S. of America; any thing in the account of sales, (meaning the aforesaid account of sales returned to the said Marcus M'Causland,) rendered by the said Alexander Mitchell, (meaning still the said Alexander,) to the contrary notwithstanding." The fourth count charged, that the [**3]  said David, out of his further malice and envy against the said Alexander before had and conceived, speaking of the said Alexander in his business aforesaid, &c. charged him with the infamous and hurtful crime of fraud and deceit, and with selling the goods, &c. intrusted to his care, for more money than he returned in his account of sales, and with fraudulently and dishonestly keeping out of the monies for which the goods, &c. were sold, more than he was entitled to for his commission, &c. The general issue was pleaded.

1. The Plaintiff at the trial offered to read in evidence the testimony taken under a commission, issued at his instance out of the county court, and directed to Joseph Foulke and Henry Basden, of the Island of Curacoa. At the foot of the form of the oath, written on the commission, to be taken by the commissioners, were written the names of the commissioners, with their seals, and also these words-- Sworn before us the 28th of May 1806.

Joseph Ingram

P. L. Brion."

Then followed the interrogatories and answers of witnesses, and the whole authenticated by this certificate-- "We, the undersigned commissioners, do hereby certify to the honourable the [**4]  judges of Baltimore county court, that after we had severally taken the oath directed in said commission, and administered the oath to Clement Davis, whom we appointed aso ur clerk in said commission directed, that we proceeded to examine the witnesses produced; and we do certify, that the annexed answers were made to the annexed interrogatories. As witness our hands and seals this 28th day of May 1806.

Joseph Foulke, (L. S.)

Henry Basden, (L. S.)"

The defendant's counsel objected to the admissibility of the testimony taken under this commission, on the ground that the commission did not appear to have been duly executed. But the court, [Nicholson, Ch. J. and Hollingsworth, A. J.] overruled the objection, and permitted the commission and depositions to be read in evidence to the jury. The defendant excepted.

2. The plaintiff, in support of the issue joined on the third count of his declaration, offered to read in evidence an affidavit, dated the 10th of April 1801, and proved to have been made before G. G. Presbury, one of the justices of the peace for Baltimore county, by the defendant, (Wilson,) and to have been signed by Wilson. The only part necessary to be [**5]  stated is this, viz. "And this deponent deposes and declares, that in the outward bound cargo of the sloop Delight, there was a certain quantity of American soap, which to his certain knowledge was sold at Curacoa by the said Alexander Mitchell, at six dollars per box, current money of the U. S. of America, any thing in the account of sales rendered by the said Alexander Mitchell to the contrary notwithstanding." The defendant objected to the reading of this paper to the jury. But the court, [Nicholson, Ch. J. and Hollingsworth A. J.] overruled the objection. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Harper, for the Appellant. 1. The question under the first bill of exceptions, arises on the ground that it does not appear that the commissioners, named in the commission, took the oath required, before some person legally authorised to administer it. The court will not presume that the persons, before whom the oath appears to have been taken, had proper authority. This is not similar to Bryden vs. Taylor, 2 Harr. & Johns. 396, nor De Sobry vs. Terrier, Ibid 191. In the former [**6]  case, the court presumed that the person, who acted as a justice, was such, because they were bound to know who were the justices of the peace, records thereof being in the court; but this court are not bound to know, nor have they the means of knowing, the officers of a foreign country; they can only know legally, by having it certified to them under the seal of such country. The court are bound to notice a public seal, as in De Sobry vs. Terrier, such seals being evidence of themselves.

2. The second bill of exceptions rests upon a variance between the third count in the declaration, and the affidavit offered to support it. In that count it is stated that the soap was sold at six dollars for the whole quantity; and the affidavit stated it to have been sold at six dollars per box. This is a substantial variance. But even if it was not, it would still be fatal; for where a written instrument is professed to be set out, it must be done word for word.

Winder, for the Appelle. 1. The objection to the execution of the commission offered in evidence in the first bill of exceptions, has no force. If this commission is defectively executed, there never was one legally executed.  [**7]  Here the county court delegated an authority to certain persons, who certify that they have performed what the court directed. If this is not evidence, then the court are not to believe that the commissioners examined the witnesses; and they must have other proof that the depositions of the witnesses were properly taken. In the cases of Bryden vs. Taylor, and De Sobry vs. Terrier, the objections did not arise under commissions issued from the court.

2. There must be a clerical mistake in the third count, in the omission of the words per box. The objection in the court below was not on this ground, but because the affidavit was not set out at length. The great strictness in setting out the whole instrument has been greatly relaxed; and where the substantial words are proved, it is now held to be sufficient. This is the case of a libel. Here the reference is to the affidavit, and the defendant has notice of the words charged and relied on. It is so in a libel, where the publication is referred to, and it may be known.

3. There being a general verdict in this case, and there being other counts in the declaration, which are good, the action can be sustained, and the judgment [**8]  may be entered on any one of the good counts, under the act of 1809, ch. 153.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINIONBY:
CHASE 

OPINION:

 [*95]  CHASE, Ch. J. The court could never permit the plaintiff to take a judgment on a count upon which he had given no evidence.
The court concur with the court below, in the opinion expressed in the first bill of exceptions, but dissent from that in the second bill of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

22 of 38 DOCUMENTS 

NOLAND vs. RINGGOLD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 216; 1811 Md. LEXIS 8 

June, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Washington County Court. This was an action of assumpsit, brought by the endorsee (now appellant,) against the maker, (now appellee,) on the following promissory note:

$ 2500.

Baltimore, 10th July, 1801.

Sixty days after date I promise to pay to Simon Wilmer, No. 28 Cheapside, Baltimore, twenty-five hundred dollars, for value received.

Saml. Ringgold."

Thus endorsed, "S. Wilmer."

The declaration contained, besides a count upon the note, counts for money lent and advanced, for money had and received, and for money laid out and expended. The general issue was pleaded; and at the trial sundry bills of exceptions were taken on the part of the defendant, to the opinions of the court, and a verdict given in favour of the plaintiff. The defendant moved the court in arrest of judgment, and among other reasons assigned, one was because it did not appear that the note, set forth in the declaration, was a negotiable note, and that therefore the plaintiff was not entitled to support an action thereon in his own name. The county court arrested the judgment, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
W. Dorsey and Taney, for the [**2]  Appellant, contended, 1. That the note was a negotiable note under the statute of 3 and 4 Anne, ch. 9, and that Wilmer had a right to endorse it so as to enable the holder to bring the suit thereon in his own name. They referred to that statute, and to Smith vs. Kendall, 1 Esp. Rep. 231. Burchell vs. Slocock, 2 Ld. Raym. 1545 Moore vs. Page, Ca. temp. Talb. 288. Kyd on Bills, 63, 64. Brown vs. Harraden, 4 T. R. 148; and Chitty on Bills, 165. 2. That there being several counts in the declaration, besides that on the note, all defects are cured by the act of 1809, ch. 153, for the amendment of judicial proceedings.

T. Buchanan, for the Appellee, cited Smith vs. Kendall, 6 T. R. 123. Evan's Ess. 139, 126. Downing vs. Backenstoes, 3 Caine's Rep. 137. Lex. Mer. 41. Dawkes vs. De Lorane, 3 Wils. 211. Hill vs. Lewis, Salk. 132, 133. Gerard vs. La Coste, 1 Dall. Rep. 194. Chitty on Bills, 59, 60, 90, 91. Josselyn vs. Ames, 3 Mass. Rep. 275; and Barriere vs. Nairac, 2 Dall. Rep. 249.  

JUDGES:
The cause was argued before CHASE, Ch. J. and POLE, NICHOLSON, EARLE, and JOHNSON, J.  

OPINIONBY:
CHASE 

OPINION:

 [*217]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that to enable [**3]  the assignee to maintain a suit in his own name, on a promissory note against the maker of the note, it is essential that the words "or order," or "bearer," or words equivalent, should be inserted in the note.
Prior to the statute of 3 & 4 Ann, ch. 9, no suit could be maintained on a promissory note, as such, by the payee against the maker. In assumpsit to recover money due on a promissory note, the plaintiff must have set forth the consideration for which it was given; and the plaintiff, although he could give the note in evidence, could not entitle himself to a recovery without proving the consideration on which it was given. Lord Holt resisted frequent attempts, which were made, to declare on the note as such, and to make it evidence without proving the consideration, and his persevering in that opinion is supposed to be the cause of enacting the statute of 3 & 4 Ann, ch. 9.

 [*218]  That statute contains two provisions--The first empowers the payee to sue on the note, and makes it sufficient evidence to support his action without proving the consideration. The words of the statute are, "the money mentioned in such note shall be construed to be by  [**4]   virtue thereof due and payable to the person to whom the same is made payable." The second provision empowers the assignee to sue in his own name if the note is made payable to A B, or order, or bearer. The insertion of those words makes the note transferrable, by giving authority to the payee to assign it. A note of hand being a chose in action, is assignable only under the statute, and no notes are within the statute for the purpose of assignment, but such as are made payable to A B, or order, or bearer.
The words or order, or bearer, are of no import or signification as to a suit brought by the payee, because as to him, the only thing essential was the enabling him to sue on the note, and to make it evidence without further proof.
All the cases which have been cited are suits by the payee, or the administrator or executor of the payee, against the maker, in which the courts decided the notes were within the statute--because as to him it was of no consequence whether the note was assignable or not. The case of Burchell vs. Slocock, 2 Ld. Raym. 1545, was a suit by the administrator of the payee against the maker, and the court decided the note was within [**5]  the state, although not made payable to order, or bearer, and very rightly, for the reasons the court have suggested. The court know of no case in which it has been determined that an assignee can maintain a suit in his own name against the maker, on a note in which those words are not inserted.
The court are of opinion, that the act of assembly of November 1809, ch. 153, does not take in this case.
JUDGMENT AFFIRMED.  

23 of 38 DOCUMENTS 

WINTER vs SUMVALT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 38; 1810 Md. LEXIS 9 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. This was an action of slander, brought by the appellee against the appellant. The slanderous words charged in the declaration were these: "You, (meaning the plaintiff,) are a rogue, and I, (meaning himself the defendant,) can prove that you, (meaning the plaintiff,) cheated Mathias Sitler, (meaning one Mathias Sitler of the city of Baltimore,) out of a hundred dollars." The general issue was pleaded, and there was a verdict for the plaintiff for one cent damages. Motion, and reasons in arrest of judgment. 1. Because the words spoken had no reference to the plaintiff in the way of his trade or business. 2. Because they were not in themselves actionable. The county court overruled the motion, and rendered judgment on the verdict for the plaintiff. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND JUDGMENT ON THE VERDICT ARRESTED.  

COUNSEL:
Kell, Winder, and M'Mechen, for the Appellant, cited 1 Com. Dig. tit. Action, (F. 7,) 268. Ludwell vs Hole, 1 Stra. 696. S. C. 2 Ld. Raym. 1417. Davis vs Miller, 2 Stra. 1169. Wake vs Chapman, Hardres's Rep. 8; and Cockaine vs Hopkins. 2 Lev. 214.

Scott, for the Appellee.  

JUDGES:
The cause was argued before [**2]  CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*38]  JUDGMENT REVERSED, AND JUDGMENT ON THE VERDICT ARRESTED.  

24 of 38 DOCUMENTS 

STEVENSON vs. RIDGELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 281; 1811 Md. LEXIS 26 

December, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. The plaintiff in the court below, (now appellant,) brought an action of replevin against the defendant, (the appellee,) for 12 hogsheads of tobacco. The defendant pleaded property; and at the trial the plaintiff gave in evidence, that he was the inspector of a public tobacco warehouse established at Fell's Point in Baltimore county, and that while acting in that capacity twelve hogsheads of tobacco were deposited at that warehouse, for which, after being inspected, twelve several notes were issued by him to the persons who lodged the said tobacco, as appeared by the notes produced in court by the plaintiff. He further gave evidence, that the holders of the said notes presented them to him while he was inspector, and demanded a delivery of the tobacco mentioned in them; that he then delivered to said holders by mistake, other tobacco than that mentioned in the notes, and which were accepted by them in mistake, without any objection on their parts; that the tobacco so delivered was different from that they were entitled to receive; and upon the delivery of the said tobacco the said notes were delivered up to him as inspector; that he was afterwards,  [**2]  and some time before the institution of this suit, removed from his office of inspector, and the present defendant appointed to succeed him; that the said twelve hogsheads of tobacco, for which the said notes were issued, were advertised for sale by the defendant as inspector, under the act of assembly of 1802, ch. 27; and that no demand was made for the said tobacco by the plaintiff, until after the publications of the said advertisement. The defendant then prayed the court to direct the jury, that on these facts the plaintiff was not entitled to recover. And the court, [Nicholson, Ch. J.] did accordingly so direct the jury, being of opinion, that the surrender of the tobacco notes to the inspector, as such, for the purpose of having the tobacco delivered to the respective holders, transferred no property in the tobacco to the inspector, although other tobacco than that due on the notes was delivered to them, and that to sanction such practices would be to open a door to the most abominable frauds, which might be committed by inspectors upon the several counties in which they reside; that it was the duty of every public officer to act correctly in the discharge of his functions,  [**3]  and if he acted incorrectly, even by mistake, he could not avai himself of his own negligence to his own benefit, and to the injury of a third party. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin and Winder, for the Appellant; and by

T. B. Dorsey, for the Appellee.  

JUDGES:
The cause was argued before BUCHANAN, EARLE and JOHNSON, J.  

OPINION:

 [*282]  JUDGMENT AFFIRMED.  

25 of 38 DOCUMENTS 

ENNISS vs. O'CONNER et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 163; 1810 Md. LEXIS 35 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court from a judgment rendered in favour of the defendants in that court, (the present appellees,) in an action of covenant. The defendant pleaded the general issue.

1. The plaintiff at the trial read in evidence a contract between him and Catharine, (one of the defendants,) whilst she was sole and unmarried, and with whom Michael, (the other defendant,) hath since intermarried, by the name of Catharine Welsh, dated the 13th of July 1796, as follows: "Articles of agreement between Catharine Welsh, of Baltimore-town, of the one part, and Joshua Enniss, of the place aforesaid, of the other part, witnesseth, that the said Enniss doth covenant and agree to finish the carpenter and joiner's work of a house for the said Mrs. Welsh, on Bond street, in a plain workmanlike manner, as may be adjudged by a carpenter or joiner, as may be hereafter appointed; and the said Catharine Welsh, on her part, doth covenant and agree to give the present advance on the measurement of the aforesaid work. As witness," &c. Signed and sealed by the parties. The plaintiff further offered in evidence, by persons not appointed by the parties for that purpose, that he, after the [**2]  execution and delivery of the contract, and in compliance therewith, did progress in the completion and finishing the carpenter's and joiner's work of the house, mentioned in the contract of the defendant Catharine, whilst she was sole and unmarried, in a plain workmanlike manner, and was then and there willing and ready to have completed and finished the whole carpenter's and joiner's work of the house in a plain workmanlike manner, but Catharine, whilst sole, &c. refused to permit the plaintiff to finish the whole of the carpenter's and joiner's work, and discharged him from the same. He further offered evidence, by the testimony of witnesses who were not appointed according to the manner prescribed by the contract, that the value of the work so done by him for Catharine, whilst sole, &c. at the time he was prevented from proceeding with and finishing the work, amounted to the sum of ----, and that the damages sustained by the plaintiff, by reason of his not being able to finish the work, according to the contract, in consequence of the refusal of Catharine to permit him, amounted to the sum of ----, But the court, (H. Ridgely, Ch. J.) was of opinion, that the plaintiff was bound [**3]  to show, in order to entitle him to recover, by a person or persons appointed for that purpose by the parties, that as far as he had progressed in the building he had executed the same in a plain and workmanlike manner, according to the averment in the declaration, and that the plaintiff having offered no such evidence, it was irrelevant to go into evidence to show that the plaintiff was prevented from going on with the work by the defendant Catharine, or to go into any evidence of the damage sustained by the plaintiff. The plaintiff excepted.

2. The plaintiff, in support of the declaration, then offered to prove by G. Hall, B. Spencer and D. Harrison, that the defendant had appointed Harrison to measure and adjudge the work done by the plaintiff, but that Harrison refused to act, unless some other persons were appointed to act with him; that the defendant then nominated G. Hall, J. Boyer and J. Moore, for that purpose; that when Harrison, Hall, Boyer and J. Moore, came to the house, Hall refused to proceed unless he had the plaintiff's consent, and Hall, in the presence of the defendant, requested Spencer to go to the plaintiff and ask him if he consented that he or they, (meaning [**4]  the persons appointed,) he is not certain which, should measure and adjudge the work, to which the plaintiff replied he was satisfied that he or they, (he does not recollect which,) should; which answer of the plaintiff, Spencer informed Hall of, upon which Hall and Harrison, Boyer and Moore, each of them did individually measure and examine every part of the work; and that Hall, in making up his opinion of the work, did not rely upon the information or examination of any person but himself, and that his judgment was formed solely from his own measurement and observation on the work, but that Hall did not conceive himself authorised to act alone, and said he would not, without the other persons so appointed acted also. That the day after Hall had so measured and adjudged the work, he informed the plaintiff that he, together with Harrison, Moore and Boyer, had adjudged and measured the work, upon which he expressed his entire approbation; and that Hall, and the other persons so appointed, were carpenters. But the court, (H. Ridgely, Ch. J.) refused to permit the above evidence to go to the jury to support the plaintiff's declaration. The plaintiff excepted; and the verdict and judgment [**5]  being for the defendants, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder, for the Appellant; and by

W. Dorsey, for the Appellees. He cited Bristow vs. Wright, 2 Doug. 666, 667.

The first bill of exceptions was abandoned by the appellant's counsel.  

JUDGES:
The case was argued before CHASE, Ch. J. POLK, BUCHANAN, and GANTT, J.  

OPINION:

 [*165]  JUDGMENT AFFIRMED.  

26 of 38 DOCUMENTS 

CARROLL vs. COCKEY'S Adm'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 282; 1811 Md. LEXIS 27 

December, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of covenant, brought by the appellant against the appellee. At the trial, the plaintiff read in evidence the deed mentioned in the declaration, dated the 18th of July 1788, between John Cockey, the defendant's intestate, of the one part, and the plaintiff, of the other part, whereby in consideration of the sum of £  3000 current money, the said Cockey granted, &c. unto the plaintiff, his heirs and assigns, for ever, all that part of three tracts of land called Cockey's Trust, Hellmore, & Cockey's Recovery, situate in Baltimore county, which is contained within the metes and bounds, &c. following, to wit, beginning, &c. containing 300 3/4 acres of land more or less, &c. The deed contained the following covenants: "And whereas there issue out of Jones's Falls two races or water courses into that part of said tract of land called Cockey's Trust, still remaining unsold, which said races or water courses intersect the above mentioned S 3 1/2 [degree] E 359 perch line, one of which said races lays northwesterly about 30 perches from the end of the said S 3 1/2 [degree] E 359 perch line, the other near the S westermost part of said [**2]  Cockey's Trust: And whereas it is agreed by and between the said parties to these presents, that the said Carroll, his heirs, &c. shall have the full benefit of the said two races or water courses, as soon as the same shall intersect the said S 3 1/2 [degree] S 359 perch line, and that the said Cockey, his heirs, &c. shall not at any time hereafter alter, change or divert, the course of either of the said two races or courses of water, out of his land, by any other ways or channels than those now laid out through the said S 3 1/2 [degree] E 359 perch line. And the said Cockey for himself, &c. doth hereby covenant, &c. to and with the said Carroll, his heirs, &c. that he the said Carroll, his heirs, &c. shall have the full and free use and entire benefit of the said two races or water courses, as soon as they intersect the said S 3 1/2 [degree] E 359 perch line, and that neither he the said Cockey, his heirs, &c. will at any time hereafter alter, change or divert, the course of the said races or water courses, from their present sources through their present channel, or injure the said waters in their said courses; but that the same shall flow freely and uninterruptedly through [**3]  their present channels, until they intersect the said S 3 1/2 [degree] E 359 perch line, except such part thereof as may be necessary to water the meadows of the said Cockey, his heirs, &c. in the said three tracts of land; and the said Carroll, his heirs, &c. shall have free access, with or without workmen, to the sources of the said races, to increase the streams of water, or to do any other matter or thing to them that he the said Carroll, his heirs, &c. may find necessary for their improvement. And the said Cockey, for himself, &c. doth hereby further covenant, &c. to and with the said Carroll, his heirs, &c. and to and with every of them, by these presents, that he the said Cockey, his heirs and assigns, shall and will, at all times hereafter, keep the said races or water courses, proceeding from the southwestermost part of the said Cockey's Trust, in good order and repair through the said tract, until it intersects the said S 3 1/2 [degree] E 359 perch line, and that he the said Cockey now is the true and lawful owner of the said part of the said three tracts of land," &c. The plaintiff also gave in evidence the plots and explanations returned in this cause, (the land having [**4]  been surveyed under a warrant for that purpose,) and that the locations made by him on said plots were correct. He also gave in evidence, that from the time of making the said deed, to the present time, the water hath not flowed in any manner, nor at any time, along the said race or water course issuing out of Jones's Falls at the point B, as designated on the plots; and that the said John Cockey in his life-time, and before the bringing of this suit, was frequently requested, on the part of the plaintiff, to cause the said water to run along the said race, as designated on the plots, up to the S 3 1/2 [degree] E 359 perches line in the said deed mentioned, but always refused or omitted so to do. The defendants then gave in evidence, that at the time of making the said deed, the water of Jones's Falls did not flow along the said race issuing out as aforesaid at B, nor along any part thereof, and that the said water could not so flow, as the said race was, at the time of making the said deed, and then prayed the opinion of the court, and their direction to the jury, that according to the true construction of the covenant in the said deed, John Cockey was bound to leave the races,  [**5]  mentioned in said covenant and declaration, in the situation they were at the time the convenant was made, and should keep them in repair in the situation they then were, or in which the plaintiff might afterwards place them; and that if the jury should be of opinion that said Cockey had done no act to obstruct, alter, change or divert, the course of the water in either of said races, since the making of the covenant, and that the water in the upper race could not and did not flow along said race to the divisional line, without any act done or permitted by said Cockey to prevent it, and that the said Cockey at all times allowed and permitted the plaintiff, with or without hands, to enter on his lands, and to widen, deepen or increase, the said streams, for their improvement, or to do any other matter or thing to them that the plaintiff might deem necessary, that then the plaintiff was not entitled to recover in this action. And the Court, [Nicholson, Ch. J.] was of opinion, and so directed the jury, that upon a construction of the whole covenant taken together, the intention of the parties was, that Cockey should permit the water to flow through certain channels over his land, as [**6]  designated in the covenant, for the benefit of Carroll, and that if the water did, at the date of the covenant, flow through those channels or races, Cockey was bound to keep them in such order and repair as that the water might always after continue to flow as freely as at that time; but that if the water did not and could not come into and flow through the upper race or channel, at the date of the covenant, then Cockey was not bound to deepen or widen the race for the purpose of conducting the water to the land purchased by Carroll. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Harper, for the Appellant; and by

Winder, for the Appellees.  

JUDGES:
The cause was argued before BUCHANAN, EARLE, and JOHNSON, J.  

OPINION:

 [*285]  JUDGMENT AFFIRMED.  

27 of 38 DOCUMENTS 

HANNAN vs. TOWERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 147; 1810 Md. LEXIS 30 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill, filed by the present appellee, stated that she is the sister of the defendant, Hannon, (now appellant,) and before her intermarriage with J. Towers, who is now dead, lived with the defendant for several years, and rendered him valuable services by attending to his family concerns, and superintending his domestic affairs. That in 1792 she intermarried with J. Towers. That the defendant, with a view of remunerating her for her services, agreed to grant and convey to her husband and herself, for their lives, a lot and dwelling-house in the city of Baltimore, situate in Albemarle-street, being part of lot number 326, and in evidence of the contract, executed and delivered the following instrument of writing, viz. "To all people to whom these presents shall come, greeting. Jahn Hannan do send greeting. Know ye, that I the said John Hannan, of Baltimore-town, in the state of Maryland, do give and grant unto John and Eliza Towers, a dwelling-house and lot in Albemarle-street, being part of lot number three hundred and twenty-six, containing twenty feet in front and forty feet in depth, of which, before the signing of these present,  [**2]  I have delivered to Eliza Towers an inventory signed with my own hand, and bearing even date. To have and to hold the said premises, or dwelling-house, during the lives of the said John and Eliza Towers, from henceforth absolutely, without any manner of condition. In witness whereof I have hereunto set my hand and seal this fourth day of June, in the year of our Lord one thousand seven hundred and ninety-three.

Signed, sealed and delivered, in the presence of James Hannan, Michael Hannan"

John Hannan, [L S.]

The bill also stated, that the defendant, in pursuance of the contract, put J. Towers, and the complainant his wife, in possession of the house and lot. That they expended a considerable sum of money in repairing and enlarging the house, by adding another story to it. That they continued in possession until the death of J. Towers, and the complainant continued in possession until 1800. That in 1797, after the death of J. Towers, the defendant brought an ejectment against the complainant for the house and lot, and obtained judgment, and in 1800 executed a writ of possession, and turned the complainant out of possession of the house and lot, and still holds the same,  [**3]  and appropriates the profits to his own use and benefit. Prayer, to be reinstated in possession, and that the defendant account for the profits thereof, and convey unto the complainant a legal estate in the premises for her life, and for other relief, &c. The answer of the defendant states, that the instrument of writing was wholly voluntary and gratuitous, and without any consideration. That some time after the marriage of the complainant with Towers, who was a sea faring man, &c. he was prevailed upon, in order to give him the appearance of a permanent residence in Baltimore, and thereby give him a greater probability of getting employ from that port, to put him in possession of the house, and did give him some written instrument, but whether the same refers to the complainant he knows not, because the same, though referred to in the bill, is not exhibited, &c. He denies any contract which can give her any interest in the property, but if there be one it must be produced and proved. Commissions issued, and testimony was taken and returned, and the case argued and submitted to the chancellor.

KILTY, Chancellor, (27th of April 1807.) The object of the bill is to compel the defendant [**4]  to convey to the complainant a legal estate in the lot therein mentioned, which had been conveyed to her, and her husband, who is since dead, by the instrument of writing exhibited. One of the grounds of defence is, that the above deed, if it had been acknowledged and recorded, would have been a lease for their joint lives, and that the estate would have ceased upon the death of either, on account of there being no words of survivorship. The chancellor considers it a sufficient reason to induce him to request the opinion of the chief judge of the third judicial district, as provided for by law. He therefore requests judge Chase to express in writing his opinion, whether the above deed, if it had been acknowledged and recorded according to law, would have created an estate on the joint lives of John and Eliza Towers, which would have ceased upon the death of either on account of their being no words of survivorship? Or, whether it would have created an estate in joint tenancy, which would have survived to the longest liver, and of course whether Eliza Towers, (no severance of the joint tenancy appearing,) would on the death of the said John Towers be entitled to the said lot for her [**5]  life?

CHASE, Ch. J. gave the following opinion in writing: The grant being unto John and Eliza Towers, to have and to hold the premises or dwelling-house during the lives of the said John and Eliza Towers, I am of opinion, that a joint estate vested in John and Eliza Towers during their lives, and the quality of survivorship being incident to a joint estate, or joint tenancy, without any technical or other words being necessary to confer that quality. I am also of opinion, that the whole devolved on the survivor during her life, according to the case as stated by the honourable chancellor.

Kilty, Chancellor. This point being thus determined by the chief judge, which, if the law had been otherwise would have made an end of the case, the other points are to be considered. The chancellor has examined the case, and the result of his examination is, that the complainant is entitled to the relief which she prays.

The remaining ground of defence set up by the answer is, that the instrument of writing, given to the complainant, was wholly voluntary and gratuitous, and without any consideration.

It is certainly laid down as a principle, that a court of equity does not decree [**6]  specifically without a consideration, or that it will not carry into execution a voluntary deed without either a valuable or meritorious consideration. It will not be necessary in the present case to depart from this principle, however questionable it may be, when applied to instruments solemnly executed and delivered; but an inquiry into the grounds of it may not be improper.

The maxim of the civil law, quod ex nudo pacto non oritur actio, has given rise to the principle above stated, and to the position in support of it, that putting a nude contract into writing, even when under seal, will not supply the want of consideration, which is stated by Powell to be an essential defect in a contract by the civil law. But in the opinion given by Justice Wilmot, in Pillans vs. Mierop, 3 Burr. 1670, (tho' contradicted by the judges in the case of Rann and Hughes,) he stated, that "there was no radical defect in the contract for want of consideration, but it was made requisite, in order to put people upon attention and reflection, and therefore, if by stipulation or writing, it was good without consideration." The reasoning of Powell to the contrary does not appear satisfactory.  [**7]  It is, that "when the maxim was adopted and received into our system, it was accepted in its full extent; our law not recognizing any ceremonies analogous to a stipulation, which seems to have been, not the creation, but the ratification of a a promise or contract in form before a magistrate." But inasmuch as the putting a contract into writing, with the sealing and delivery, are stronger evidence of deliberation than the stipulation of the civil law, it would seem reasonable to give to those solemnities the same effect of preventing contracts from being made, and without consideration; and the words cited by Justice Wilmot from Plowden are to this effect--"The delivery of the deed is a ceremony in law signifying fully his good will that the thing in the deed should pass from him who made the deed to the other." Powell, in reply to the observation of Blackstone, "that the rule as to nudum pactum does not hold in some cases, where a promise is authentically proved by written documents, as of a voluntary bond or note of hand," remarks, that "the former turns on the ground that it is an instrument under seal and delivered, which binds the parties, and alters the property, though there [**8]  be no consideration;" that "the latter is of a distinct species; and that as long as a note of hand is confined to the parties who fabricate it, the want of consideration is a clear bar to recovering any thing upon it, upon the ground that it is nudum pactum." But the law only permits the defendant, (not being estopped by deed.) to inquire into the consideration of the note, and the burthen of proof lies on him, and not on the plaintiff, the note being prima facie evidence of his claim. Powell, in the preceding part of the same chapter observes, that "where a contract or agreement is by deed, the cause or consideration is not inquirable into in an action upon it; for every deed importing in itself a consideration, namely, the will of him who made it, a contract or agreement, where either of them is by deed, is never considered as mudum pactum." It appears to be strange, that whilst courts of law not only give their validity to sealed instruments, but in every possible case exercise an equitable jurisdiction for the attainment of justice, courts of equity should be studious to find cases in which they may avoid giving relief. Admitting it to be discretionary with courts of equity to [**9]  decree the specific performance of agreements, yet they ought to pay that deference to the solemnity of deeds, as to intend them the acts of reasonable men, and arising from a good consideration, unless the contrary be proved. And where no consideration on the face of the deed, it should not on that account be deemed merely voluntary; but it should be incumbent on the grantor to prove any circumstances of fraud, unreasonableness or surprise, in order to show that a specific performance would be unjust.

But the present case, (in addition to the important circumstance of its being against the grantor himself, and there being no creditor, or other person concerned,) is not a bare voluntary agreement without a consideration expressed or implied. And the chancellor considers the following as established principles, to wit: That a consideration may be averred and resorted to without being expressed in the deed; and that to avoid the rule, it has been laid down, that any consideration, however small, will be sufficient, a court of equity being willing to lay hold of any just ground to uphold an agreement.

There is in the first place a good consideration as against the defendant,  [**10]  or even his heirs, if he was not living--that of blood or natural love and affection, which, though not expressed in the deed, appears to have existed, from the bill, the answer and the evidence, the complainant being the defendant's sister. The service rendered to him by the complainant as a house-keeper, as proved by the depositions, without a strict examination of the value of it, is a valuable consideration, so far at least as to come in aid of this deed; and even the reason assigned by the dependant himself, to wit, the giving Captain Towers the appearance of a permanent residence, and thereby giving him a greater probability of getting employ, may (as tending to his sister's support,) be viewed as a sufficient consideration to show that the deed was not merely voluntary, and may also show, what indeed is sufficiently manifest without it, that there was no fraud or surprise on the defendant in obtaining the deed. After the usual expressions in the grant, it contains the following: "of which, before signing, I have delivered to Eliza Towers an inventory, signed with my own hand, and bearing even date." And it appears that possession was given and held until the complainant, after [**11]  the death of her husband, was turned out of possession, in consequence of the judgment in the ejectment; and this possession would have been sufficient to take the case out of the statute of frauds, if the agreement or lease had been by parol, and to oblige the defendant to execute a lease accordingly.

With regard to the improvements, it is believed that those which are proved in this case would have been sufficient to procure a decree for a lease if they had been made only on a promise of one, and this on the ground, that the lease was in part executed, and that the lessor should not take advantage of his own fraud to run away with the improvements made by another. And a fortiori, they ought to be considered in favour of the complainant, when made after the execution of the lease, and after possession under it, and not only with the knowledge of the defendant, but by his labour as a workman employed by the grantee, Captain Towers.

From the opinion of the chief judge of the third judicial district, it follows, that the title of the surviving lessee is equal to that held by both, and therefore, if the defendant is now right in his pretentions, he might at any time have brought [**12]  his ejectment, and have taken possession as soon as the improvements were made. Captain Towers might have ceased to sail from the port of Baltimore, if he had continued alive, and thereby have furnished a pretence as solid as the one now set up. But no person is at liberty so to release himself from his engagements; and in a case less strong than the present, (Villers vs. Beaumont, 1 Vernon, 100,) the chancellor uses these expressions: "If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this court will not loose the fetters he hath put upon himself; but he must lie down under his own folly; for if you would relieve in such a case, you must consequently establish this proposition, viz. That a man can make no voluntary disposition of his estate but by will, which would be absurd."

If the principles of equity herein stated are (as the chancellor supposes,) sufficient to bear out the complainant, there can be no apprehension of hardship on the defendant, on considering the nature of the claim, and the defence set up, which is not of a nature to be countenanced by this court. Decreed, as to that part of the [**13]  bill praying for a conveyance, that the defendant do, by a good and sufficient deed, executed, delivered and acknowledged, according to law, convey to the complainant the premises in the proceedings mentioned, to wit, &c. with all and singular the appurtenances and privileges thereto belonging. To have and to hold the same from the day of the date of this decree, for and during the term of the natural life of the complainant. Decreed also, that the complainant have the possession of the house and lot with, &c. Also Decreed, as to the part of the bill praying for an account, that the defendant account with the complainant for the rents and profits of the lot, during the time of his possession thereof under the judgment in the ejectment; and that an account be taken by the auditor, &c. From this decree the defendant appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

COUNSEL:
Martin, for the Appellant, contended, that the contract ceased on the death of John Towers; and if it did not, that being a voluntary contract, a court of equity could not enforce it. That the contract was made to a man and his wife, and there were no words of survivorship; and it was clear that there was no survivorship in [**14]  the case of a grant to a man and his wife, as they could not hold as joint tenants. He cited 3 Bac. Ab. tit. Joint Tenants and Tenants in Common, (G) 685, (J) 691:

Johnson, (Attorney General,) and W. Dorsey, for the Appellee, cited Co. Litt. 180, a, s. 277. Ibid 182, a, s. 283. Ibid 113, a. (note.) Ibid 181, b. 2 Blk. Com. 180, 181; and Pow. on Dev. 303.  

JUDGES:
The cause was argued before POLK, BUCHANAN, and GANTT, J. POLK, J. dissented.  

OPINION:

 [*153]  DECREE AFFIRMED.
POLK, J. dissented.  

28 of 38 DOCUMENTS 

MARYLAND INSURANCE COMPANY vs. GRAHAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 62; 1810 Md. LEXIS 13 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Covenant by the appellee against the appellants. The declaration stated, "That whereas by a certain deed made between Thomas Graham of the one part, and The Maryland Insurance Company of the other part, at Baltimore county, on the twenty-fourth day of September, in the year one thousand eight hundred and two, which deed, sealed with the seal of The Maryland Insurance Company aforesaid, the said Graham here into court brings, the date whereof is on the day and year aforesaid, the said Graham, according to the usage and custom of merchants, (through and by Hugh Young and William Young, merchants, trading in partnership under the name and firm of Hugh and William Young, his attorneys and agents.) in his own name, did make insurance, and cause himself to be insured against all risks, lost or not lost, at and from New Geneva to The Natches, with liberty to touch at Charleston on the Ohio," &c. (in the words of the policy.) "And it was also further agreed by the said deed, that in case of any loss or misfortune, it should be lawful for the said Graham, the assured, his factors, servants and assigns, to sue, labour and travel for, in and about the defence,  [**2]  safeguard and recovery, of the said goods and merchandizes, or any part thereof, without prejudice to the said insurance, to the charges whereof The Maryland Insurance Company aforesaid, by the said deed, did covenant and agree to contribute, according to the rate and quantity of the sum therein insured; and so The Maryland Insurance Company aforesaid were content, and by the said deed did bind themselves to the said Graham for the true performance of the covenants in the said premises, confessing themselves paid the consideration due to them for the said assurance, by the said Graham, after the rate of five per centum on the cargo of the said boat called The New Geneva, so by them insured against all risks. And it was also covenanted and agreed, by the said deed, between The Maryland Insurance Company aforesaid, and the said Graham, that the said Graham should abate two per centum to The Maryland Insurance Company, in case of the loss of the said cargo in the said voyage, and that such loss should be paid by The Maryland Insurance Company, to the said Graham, in ninety days after the proof and adjustment thereof, the amount of the note given for the said premium of insurance, if unpaid,  [**3]  being first deducted. And it was also further covenanted and agreed by the said deed, mutually between the said parties, that if any disputes should arise relating to a loss on the said policy of insurance, the same should be referred to two persons, one to be chosen by the said Graham, the assured, the other by The Maryland Insurance Company aforesaid, which said two persons should have power to adjust the same; and if they should differ, to choose a third, any two of whom agreeing, their determination should be obligatory on both parties. In witness whereof The Maryland Insurance Company aforesaid did, by the president thereof, subscribe the sum of sixteen thousand two hundred and sixteen dollars current money, thereby assured, and cause the common seal of the said company to be affixed to the said premises, in Baltimore, to wit, at the county aforesaid, on the day and year aforesaid, as by reference to the said deed will fully appear. And although he the said Graham hath well and duly performed, fulfilled and kept, all and singular the covenants," &c. "contained in the said deed or policy of assurance, on his part to be performed," &c. "and hath fully paid and satisfied The Maryland [**4]  Insurance Company aforesaid, a large sum of money, to wit, the sum of eight hundred and twelve dollars and five cents current money, as a premium and reward for the assurance of the above mentioned sixteen thousand two hundred and sixteen dollars. The said Graham in fact faith, that the said boat or vessel called The New Geneva, at the time of making the deed or policy, to wit, on" &c "at," &c. "was in safety, and that divers goods," &c. "of a large value, to wit, of the value of," &c. "were then and there shipped by the said Graham in and on board of the said boat or vessel, to be carried therein from" &c. "to," &c. "upon on the voyage in the said writing or policy of assurance mentioned, whereof The Maryland Insurance Company aforesaid, to wit, at," &c. "had notice; and being so in safety afterwards, that is to say, on," &c. "departed and sailed," &c. (in the usual manner stating the loss of the vessel, of which the company had notice.) "And the said Graham then and there requested The Maryland Insurance Company aforesaid, to pay him the said Graham the said sum of money insured by them as aforesaid, which The Maryland Insurance Company aforesaid ought to have paid to the said Graham,  [**5]  according to the form and effect of the covenant contained in the said deed or policy of assurance; yet The Maryland Insurance Company aforesaid, not regarding their said promises," &c "have not paid to the said Graham the sum of money assured," &c. concluding in the usual manner of such declarations. The policy of insurance was in the usual manner, stating, that "whereas Hugh and William Young, for account of Thomas Graham, do make insurance, and cause themselves, and their and every of them, to be insured, lost or not lost, at and from New Geneva to the Natches, with liberty to touch at Charleston on the Ohio," &c. "and in case of any loss or misfortunes, it shall be lawful to and for the assured, their factors, servants and assigns, (and the assured on their part agree and engage by themselves, their factors, servants or assigns,) to sue, labour and travel, for, in and about the defence, safeguard and recovery of the said goods or merchandizes, or any part thereof, without prejudice to this insurance, to the charges whereof we the assurers will contribute according to the rate and quantity of the sum herein insured; and so we the assurers are contented, and do hereby bind The Maryland [**6]  Insurance Company to the assured, their executors, administrators and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for the assurance by the said assured, or their assigns, after the rate of five per cent. on cargo by said boat insured against all risks. And in case of loss, the assured is to abate two per cent. and such loss to be paid in ninety days after proof and adjustment thereof, the amount of the note given for the premium, unpaid, being first deducted. And it is mutually agreed, that if any disputes shall arise relating to a loss on this policy, it shall be referred to two persons, one to be chosen by the assured, the other by The Maryland Insurance Company, which two persons shall have power to adjust the same; but in case they cannot agree, then those two persons shall choose a third, and any two of them agreeing, their determination shall be obligatory on both parties. In witness whereof The Maryland Insurance Company have, by the president, subscribed the sum insured, and caused their common seal to be annexed to these presents in Baltimore, the twenty-fourth day of September one thousand eight hundred and two.  [**7]  " The general issue was pleaded. Verdict and judgment for the plaintiff, from which the defendants appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin, for the Appellants. This action is founded upon a policy of insurance executed by an incorporated company, under their common seal, which therefore is considered a specialty, and the action must be covenant or debt. No person can sue upon the policy but he who can be considered a party to the specialty. The policy cannot, as to the assurers, be considered a specialty, and as to the assured a simple contract. An agent cannot seal an instrument for another, so as to be obligatory. This principle is established in Burnett vs. Kensington, 7 T. R. 207. Hugh and William Young alone can bring the action, and be considered parties to the specialty, Godin vs. The London Assurance Company, 1 Burr. 489, was covenant on a policy executed by The London Assurance Company. Godin, & Co. brought the action in their own names, yet they were only the agents who made the insurance for the use of Uhthoff. In 7 Wentw. 38, is a declaration against The London Assurance Company by Jacob Mendes Da Casta, yet he was only the agent who effected the insurance [**8]  for Solomon Israel. No person can declare upon a policy under seal, but he, who in consideration of law, is party to the specialty. The agents in these kind of policies do declare upon them in their own names; therefore, he for whose use the insurance is effected, is not considered a party to the policy so as to declare in his own name. The case of De Ghetoff vs. London Assurance Company, S Brown's P. C. 525, also establishes the principle, that a suit at law must be in the name of the party who effected the insurance. A charter party executed by the master, though said to be done on behalf of the owners, doth not furnish a direct action grounded upon the instrument itself against them. Abbott, 146, (122.) But the owners must be made responsible by a special action on the case, or by a suit in equity. Abbott, 88, (80.) The rule of the law of England is, that the force and effect which that law gives to a deed under seal, cannot exist unless executed by the party himself, or by some one in his presence and by his direction; or in his absence by an agent authorised by another deed. And in all these cases the deed must be made "in the name of the principal," and not by the agent in his [**9]  name, for the use of his principal. Abbott, 146, (122, 123.) If an obligation be made to J D to the use of J S, it is a good obligation to J S in equity, but he cannot sue at law. The suit must be in the name of J D. Shep. Touch. 369.

In this case the declaration is not supported by the policy. The declaration states, that "the said Graham, according to the usage and custom of merchants, (through and by Hugh and William Young his attorneys and agents,) in his own name, did make insurance, and cause himself to be insured." The policy declares, "that Hugh and William Young, for account of Thomas Graham, do make insurance, and cause themselves, and them, and each of them, to be insured." The declaration says, "It was further agreed by said deed, that in case of loss, &c. it should be lawful for the said Graham, his factors, servants and assigns, to sue," &c. The policy says, "in case of loss, &c. it shall be lawful to and for the assured, (to wit, Hugh and William Young,) and their factors," &c. The declaration says, "and so The Maryland Insurance Company aforesaid did bind themselves to the said Graham for the true performance," &c. The policy says, "do bind themselves to the assured,  [**10]  (the said Hugh and William,) their executors," &c. The declaration says, "confessing themselves paid the consideration due to them for the said insurance by the said Graham." The policy says, "by the said assured, (the said Hugh and William,) or their assigns." The declaration says, "and it was agreed by the said deed between the said Graham and The Maryland Insurance Company aforesaid, that in case of loss the said Graham should abate two per cent. to The Maryland Insurance Company aforesaid, and that such loss should be paid by The Maryland Insurance Company aforesaid, to the said Graham, in ninety days," &c. The policy has only these words, "and in case of loss the assured, (Hugh and William,) is to abate two per cent. and such loss to be paid in ninety days," &c. The declaration says, in case of disputes they are "to be referred to two persons, one to be chosen by the said Graham," &c. The policy only says, "one to be chosen by the assured," to wit, Hugh and William Young. Thus the court will perceive, that the declaration is, as if the insurance had been effected by Graham in his own name, but through his attorneys. Whereas the policy is entered into by Hugh and William Young [**11]  in their own names, though for the use of Graham; and hence comes within the decisions referred to in Abbott and Shepherd's Touchstone, that though Graham has an equitable interest in the policy, yet the suit upon the policy must be in the name of Hugh and William Young. That the suit at law must be brought in the name of him who has the legal title, whoever may be interested, is so clear, that it would be superfluous to cite authorities to prove it. The court are however referred to one of a very recent date, and of high respectability, Lewis vs. Harwood, 6 Cranch, 82. In that case Whetcroft assigned a bond given to him by Lewis, to T. & B. Harwood, who instituted a suit thereon in the Circuit Court of the U. S. for the district of Virginia, against Lewis, in their own names. A trial was had, and a judgment given in their favour. Lewis brought the case, by writ of error, before the Supreme Court of the U. S. where the judgment was reversed, because, though the defendants in error were indisputably justly entitled to the money, yet the suit was brought in a wrong name.

W. Dorsey, for the Appellee. It is conceded that the only remedy on the policy is debt or covenant. The latter [**12]  remedy has been resorted to; and the only question is, whether this action can be sustained in the name of Graham? In 3 Wentw. 378, there is a declaration in the name of the assured on a similar policy. The case of Godin vs. The London Assurance Company, cannot affect the present case. There the insurance was effected by Godin, Guion, & Co. and was made as well in their own names, as for and in the name and names of all and every person or persons to whom the same doth, may, or shall appertain, in all or in part; and Godin, Guion, & Co. endorsed on the policy, that the insurance was made by the order of Uhthoff. In that case no objection was made to the right of the plaintiff to sue, but the only question was, whether the person, for whose benefit the policy was effected, had an insurable interest in the thing insured. Besides, the person for whose benefit the insurance was made, was not mentioned in the policy. Abbott, 123, (147,) reports a case which unquestionably shows the present action may be maintained. "If a charter party is expressed to be made between parties, but runs thus--This charter party witnesseth, that C, master of the ship W, with the consent of A and B the owners [**13]  thereof, lets the ship to freight to E and F, and the instrument contains covenants by E and F, to and with A and B; in this case A and B may bring an action upon the covenants expressed to be made with them." In the case before the court the policy of insurance is not expressed to be made between The Maryland Insurance Company of the one part, and Hugh and William Young of the other; but in these words: This policy of insurance witnesseth, that Hugh and William Young, for account of Thomas Graham, do make insurance; and the covenants contained in the deed are between The Maryland Insurance Company and the assured, to wit, Thomas Graham, and this suit is founded on the covenants made by the company to and with the assured. The case cited from Shepherd's Touchstone does not apply, because there was no covenant between the obligor and the cestui que use. It is difficult to conceive how the case of Burnett vs. Kensington, 7 T. R. 207, can be brought to bear on the present case, as this suit is founded on a deed executed by The Maryland Insurance Company by their corporate seal.

In answer to the objections urged on the ground of the supposed variances between the declaration and the [**14]  policy, it is sufficient to observe, that the instrument is declared on according to its legal effect.

In De Ghetoff vs. London Assurance Company, 3 Brown's P. C. 525, the policy was effected in the name of De Conninck, and the names of the assured did not appear on the face of the policy. And it was held that De Conninck, the trustee, might bring an action of covenant on the policy. If the names of the parties assured had appeared on the instrument, then the assured might have sustained an action in their own names, according to the principles established in the case cited from Abbott.

It has been the uniform practice in this state to institute suits in this way, and the objection has never before been suggested. In a case decided by the supreme court of the U. S. at the last term, a similar declaration was sustained. Bigelow and Proud effected a policy similar to the present one, for and on account of Jacques Ruden, with The Maryland Insurance Company. An action was brought in the circuit court of the U. S. held at Baltimore, on the policy, in the name of the assured against the company, and the plaintiff obtained a verdict and judgment. The cause was removed to the supreme [**15]  court of the U. S. on bills of exceptions, and the judgment below affirmed. Maryland Insurance Company vs. Ruden, 6 Cranch, 338. The case of M'Donough vs. Templeman, 1 Harr. & Johns. 156, supports the present action. In that case Burrows executed the agreement for and on account of M'Donough, and the declaration was in covenant in the name of M'Donough, and was sustained; but the court held, that The George Town Bridge Company, and not Templeman, ought to have been sued, as he executed the agreement as their agent.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*69]  JUDGMENT AFFIRMED.  

29 of 38 DOCUMENTS 

NORWOOD vs. NORWOOD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 57; 1810 Md. LEXIS 12 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Assumpsit by the appellant against the appellee, for money laid out, expended and paid. Plea, the general issue. At the trial the plaintiff proved that an action of ejectment had heretofore been instituted in the general court, by Charles Carroll and others' lessee, against the plaintiff and defendant in the present action, for two tracts of land called Enlargement and Brown's Adventure. That after the institution of that ejectment, Carroll and others' lessee, brought another action of ejectment in the general court also against the plaintiff and defendant, for a tract called Yates his Forbearance, in which last action the plaintiff there obtained a verdict and judgment, against the present plaintiff and defendant, for possession of the tract called Yates his Forbearance, and also for the costs expended by the plaintiff in that action, amounting to £  186 4 10, the whole of which was paid by the present plaintiff. The plaintiff also proved, that in the first aforesaid action of ejectment, a judgment of nonsuit was entered, from which there was an appeal to the court of appeals, where the same was reversed, and judgment entered for Carroll and others'  [**2]  lessee, against the plaintiff and defendant in this action, for the costs of the appeal, amounting to £  58 6 4, and which costs were also paid by the plaintiff here, to the agent of Carroll, and others, as by a receipt exhibited. This action was brought to recover a moiety of those costs. The defendant then proved, that in the first mentioned ejectment for Enlargement and Brown's Adventure, there had been certain plots and locations made by order of the general court, which were returned and filed in that court as proceedings in that ejectment, and also that certain depositions of witnesses, relative to the boundaries and lines of those tracts of land, had been taken by consent in that action. That William Hammond was the legally authorised attorney of Carroll and others' lessee, in both of the above mentioned ejectments, and that the plots and locations, which had been made in the first mentioned action for Enlargement and Brown's Adventure, were precisely the same that must necessarily be made in the other ejectment for Yates his Forbearance, as far as they went, and that it would only be necessary to make some trifling additions to render them completely sufficient to try the ejectment [**3]  for Yates his Forbearance. The defendant also proved, that Hammond, the attorney for Carroll and others' lessee, entered into the following agreement with the defendant in this action: "That the plots used in the former ejectment, which was tried between Charles Carroll, and company, and Edward and Samuel Norwood, shall be used in the cause now depending between the same plaintiffs, and Samuel Norwood, each party having liberty to make such amendments to those plots as they may think necessary." He also proved, that the plots mentioned in this agreement were the same which had been made in the ejectment for Enlargement and Brown's Adventure, and that the cause mentioned, as "now depending," in the agreement, was the ejectment for Yates his Forbearance. The defendant also proved, that he entered into another agreement with Hammond, the attorney of Carroll and others' lessee, "that the admissions of boundaries, proofs and depositions, taken in the former cause between the same parties, shall be received in evidence in the same manner as if they had been taken in the present suit." And that the depositions in the last agreement mentioned are the same depositions herein before mentioned,  [**4]  which were taken by consent in the ejectment for Enlargement and Brown's Adventure, &c. The defendant also proved that Hammond, the said attorney, after the two agreements had been entered into, applied to the plaintiff in this action, and desired him, in order to save costs and trouble, to enter into the same agreement with him, to which the plaintiff at the time consented, but afterwards utterly refused to do, alleging as his reason, that he never would agree to any thing which was recommended by James Winchester, (the present defendant's counsel,) and that new plots and locations must be made. The defendant also proved, that after the judgment of nonsuit was given in the general court against Carroll and others' lessee, in the ejectment for Enlargement and Brown's Adventure, Carroll and others' lessee, instituted another ejectment in the general court, for the two tracts of land called The Enlargement and Brown's Adventure, and that it was agreed on all sides, both by the plaintiff and defendants in the last mentioned ejectment, that the plots and locations, which had been made in the first suit brought for the same tracts of land, should be used in the last mentioned action for [**5]  the same lands, and that the said plots were so used, and no others were ever made in the last ejectment. That when the sheriff of Baltimore county served a notice on the defendant, to make locations in the last suit of the three ejectments in which locations were made, he informed the sheriff that he should not make any locations in that case, nor would he pay any part of their expense. He also proved, that when the sheriff and surveyor were actually making locations, and and laying down pretensions, by the direction of the present plaintiff, on the last occasion, he, the present defendant, told the sheriff and surveyor that he would have nothing to do with the locations they were making, nor would he pay any part of the expense. The defendant also proved, that the defendants in the last mentioned ejectment, recovered a judgment in the general court for the sum of £  131 2 3, it being the costs of the ejectment for Enlargement and Brown's Adventure, in which a judgment of nonsuit was rendered against Carroll and others' lessee, and that of the said sum the defendant in this action received £  19 1 0, alleging that he had paid to that amount, and claiming no more, and that the present [**6]  plaintiff received the balance, being £  112 1 3. That on the ejectment instituted for The Enlargement and Brown's Adventure, the defendants in that action were entitled to £  39 12 0, as costs, from Carroll and others' lessee, which were discounted in payment of so much of the sum of £  58 6 4, herein before mentioned, as costs recovered in the court of appeals by Carroll and others' lessee, against the present plaintiff and defendant, and is a part of the £  53 6 4, stated to be paid to the agent of Carroll and others' lessee, by the present plaintiff, in the receipt exhibited, and that the balance of the £  58 6 4, viz. £  18 14 4, was paid exclusively by the present plaintiff; and that the £  58 6 4, was discharged as just above stated, and not by a payment of money by the plaintiff, as the receipt purports. The defendant then moved the court to direct the jury, that if they should believe that any part of the aforesaid costs were incurred by the plaintiff unnecessarily, and contrary to the wish and consent of the defendant, and contrary to the agreements herein before mentioned between Hammond and the defendant, that the plaintiff was not entitled to recover in this action one [**7]  half thereof from the defendant. But the court, (Nicholson Ch. J.) refused to give the direction to the jury; and directed the jury, that the plaintiff was entitled to recover the same, inasmuch as the sum of money, for which the present suit was instituted, was the legal costs of suit which had been expended by Charles Carroll and others' lessee, in prosecuting an ejectment against the present plaintiff and defendant; that for these costs a judgment had been rendered in the general court against the present plaintiff and defendant; that each was bound for the whole to the plaintiff in ejectment, by the judgment which had been rendered against them, and that if the whole amount had been paid by either, he had a right to recover a moiety from the other. That the defendants in ejectment might have severed in their defence, and ought to have done so, if either had no confidence in the other; that by agreeing to defend the suit jointly, each had a right to direct such locations, as he thought would contribute to their mutual defence. That this suit, however, was not for money paid by the plaintiff for locations made by himself, but for costs incurred by the plaintiff in ejectment in making [**8]  his locations, and in otherwise prosecuting his suit for which a judgment had been rendered jointly against the present plaintiff and defendant. The plaintiff in ejectment might perhaps have insisted, at the trial, upon the agreement with the present defendant, and might not have made other locations than those contained on the old plots, but this he did not chuse to do. He went on to make entire new plots, for the expense of which he recovered his judgment, and the present defendant is liable for his moiety to the present plaintiff, unless he can show himself entitled to other credits than those contended for by reason of the new plots. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder, for the Appellant, (who cited 2 Com. on Contr. 151.) and by

Key, for the Appellee.  

JUDGES:
The case was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J. BUCHANAN, J., dissenting.  

OPINION:

 [*61]  THE COURT concurred with the court below in the opinion given in the bill of exceptions.  

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, J. In this case I differ in opinion with the rest of the court. [He here stated the facts.]  [**9]  
The question is, whether the plaintiff can, in an action for money paid, &c. recover from S. Norwood one half of so much of the costs adjudged against them in the action of ejectment as might have been saved under the agreement.
The action of assumpsit is an equitable action and in order to support it the law will often raise an implied promise according to the circumstances of the case. But there must always be either an express or implied undertaking. In this case there is neither, on the contrary all the equity is with the appellant. The costs of making out new plots, so far as they contain the same locations which were made on the old ones, and of the attendance of witnesses whose depositions had before been taken, were incurred by the plaintiff in the ejectment, in consequence of E. Norwood's refusal to accede to the agreement. But it is said, that the judgment in the action of ejectment was joint, and 

 [*62]  that each of the defendants in that suit was bound for the whole of the costs adjudged to the plaintiff, which the appellant might have avoided by severing in his defence. But I cannot perceive how his not having severed, in any manner affects the case;  [**10]  for defendants may sever in their defence in other actions of tort, and yet it a joint judgment for damages is rendered against two in an action of trespass or trover, &c. and one pays the whole, he cannot recover against the other a moiety of the money so paid. Nor can one security, who is compelled to pay the whole of the money, in all cases resort to his co security for a contribution; as if one becomes a joint security at the instance of another, though he is thereby made liable to the person to whom the security is given, yet he cannot be called upon by the other, because it was at his instance that he became a security. And this is a stronger case, with more equity on the side of the appellant; for the costs, which are the subject of controversy, were not only incurred at the instance of the appellee, but against the consent of the appellant; and the law therefore will not raise against him an implied undertaking to pay, and the judgment being joint makes no difference, and cannot shut out any equitable defence which the party might otherwise have bad.
JUDGMENT AFFIRMED.  

30 of 38 DOCUMENTS 

PETERS vs. JOHNSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 291; 1812 Md. LEXIS 4 

December, 1812, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. An action of debt was brought by the plaintiff below, (now appellant,) against the defendant, (now appellee,) upon a bond executed by the latter to the former on the 15th of April 1807, reciting that the parties had referred certain differences between them to two arbitrators, &c. and conditioned that the defendant abide by the award to be made by the arbitrators, the award to be delivered to each of the parties within 60 days from the date of the bond. The defendant pleaded, that no award was made and delivered by the arbitrators to the parties within 60 days, &c. The plaintiff replied, that by a writing endorsed and signed by the defendant on the bond, further time was given to the arbitrators until the 25th of June 1807, to make an award, and that the arbitrators did make an award, which was delivered to the parties before that day. This agreement and award were set forth by the plaintiff in his replication, and a nonperformance of the award averred, &c. The defendant demurred to the replication, and the county court ruled the demurrer good, and gave judgment for the defendant. From that judgment the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT [**2]  AFFIRMED.  

COUNSEL:
Winder, for the Appellant, contended, that the action could be supported on the defendant's bond to the plaintiff, with the agreement endorsed thereon, extending the time within which the award was to be made. He referred to Jenkins vs. Lace, 8 T. R. 87, and Evans vs. Thompson, 5 East, 191.

Harper, for the Appellee. The action should have been brought on the agreement or on the award, but not on the bond. He cited Littler vs. Holland, 3 T. R. 590. The agreement gave no authority to the arbitrators to make the award, as it was signed by the defendant alone, and was therefore not binding on the plaintiff.  

JUDGES:
The cause was argued before BUCHANAN, EARLE, and JOHNSON, J.  

OPINION:

 [*291]  JUDGMENT AFFIRMED.  

31 of 38 DOCUMENTS 

BONNER vs. BOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 278; 1811 Md. LEXIS 24 

December, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of slander, and the words charged in the declaration to have been spoken, were, that "he (meaning the plaintiff, now appellant,) had stolen my horse, and brought him home this morning." "His partner stole my pocket book; and there is the man, (pointing at and meaning thereby him the plaintiff,) who stole my horse and brought him home this morning." Also "that he, (meaning the plaintiff,) had stolen my horse, and brought him home this morning." The general issue was pleaded. On the trial the plaintiff proved that the defendant, (now appellee,) amoungst a crowd of people, assembled at a public vendue, said, pointing at the plaintiff, "there is the man who stole my horse, and fetched him home yesterday morning." The defendant then moved the court to direct the jury, that the plaintiff was not entitled to recover. And the Court, [Nicholson Ch. J. and Jones, A, J.] gave the direction. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court, where the cause was argued before BUCHANAN, EARLE, and JOHNSON, J.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Winder, for the Appellant, contended,  [**2]  that the words spoken were actionable; and that the offence alleged against the plaintiff brought him in danger of legal punishment.

Boyd, for the Appellee, cited 2 Esp. Dig. 497, 498. Bull. N. P. 5. And contended that the words spoken imported but a trespass, and not an act which could make the plaintiff liable to a criminal prosecution.  

OPINION:

 [*279]  JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

32 of 38 DOCUMENTS 

PIERPOINT'S Adm'rs. vs. PIERPOINT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 165; 1810 Md. LEXIS 36 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Covenant by the appellee against the appellants. The general issue was pleaded; and at the trial the plaintiff gave in evidence the following agreement, dated the 17th of October 1799. "I do promise and oblige myself to convey to Samuel Pierpoint, or his assigns, six acres of land, lying between his house and Sam. Clark's, as I do acknowledge I have received the full purchase money for said land. In witness" &c. Signed and sealed by Thomas Pierpoint. And proved that T. Pierpoint, the intestate, executed the same. He also gave in evidence a grant dated the 20th of December 1797, issued to Joseph, Thomas, Walter, Benedict and Samuel Pierpoint, and Adam Ground, as tenants in common, for a tract of land called Pierpoint's United Defence, containing 357 acres. He also proved, that the six acres of land, mentioned in the above agreement, is part of the land mentioned in the grant, and that S. Pierpoint (the plaintiff,) and T. Pierpoint, (the defendants' intestate,) are the same S. and T. Pierpoint mentioned in the grant. It was admitted by the parties that T. Pierpoint never made a conveyance of the six acres of land mentioned in the agreement to the [**2]  plaintiff, and that the plaintiff had several times requested T. Pierpoint to convey the land to him, which he promised to do, but never did, nor has it ever since been conveyed to the plaintiff, or been in his possession, nor a deed of conveyance for the same ever tendered, either before or since the death of T. Pierpoint, to the plaintiff; and that the plaintiff never tendered a deed of conveyance for the land to T. Pierpoint to be executed by him. The defendant then proved, that T. Pierpoint died in September 1800; and thereupon moved the court to direct the jury, that to entitle the plaintiff to recover in this action against the defendants, it is incumbent on him to prove to the jury that he had tendered a deed of conveyance of the six acres of land from T. Pierpoint to himself, to T. Pierpoint, in his life-time, to be executed by T. Pierpoint, and that T. Pierpoint neglected or refused to execute the same. This direction the court, [Nicholson, Ch. J.] refused to give, but directed the jury, that the plaintiff was entitled to recover in this action against the defendants unless they proved to the jury that T. Pierpoint had made a regular and legal conveyance of the six acres [**3]  of land to the plaintiff, or had tendered a deed of conveyance for the same to the plaintiff. The defendant afterwards moved the court to direct the jury, that T. Pierpoint was entitled to a reasonable time to have the land, mentioned in the grant, divided between the several tenants in common thereof, before he was bound to make a conveyance of the six acres, mentioned in the agreement, to the plaintiff; and that T. Pierpoint died before that reasonable time had expired. But the court refused to give the direction. The defendants excepted; and the verdict and judgment being against them they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder, for the Appellants.

T. B. Dorsey, for the Appellee. He cited Halling's case, 5 Coke, 23. Heard vs. Wadham, 1 East, 629. Seton vs. Slade, 7 Ves. 278. Pincke vs. Curties, 4 Bro. Chan. Rep. 332; and Smith vs. Burnham, 2 Anstr. 527.  

JUDGES:
The cause was argued before CHASE, Ch. J. POLK, BUCHANAN, and GANTT, J.  

OPINION:

 [*166]  JUDGMENT AFFIRMED.  

33 of 38 DOCUMENTS 

ROACHE vs. PENDERGAST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 33; 1810 Md. LEXIS 8 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Assumpsit by the appellee against the appellant. The declaration contained two counts, one for money had and received, and the other for money lent. The defendant, in the court below, pleaded non assumpsit, and an account in bar, which he filed and offered to set off, &c. General replication thereto, and issues joined. At the trial the plaintiff produced as a witness one Garrett Rice, who proved that the plaintiff advanced to the defendant $ 150, to be employed as a capital in trade, $ 50 whereof to be considered as the plaintiff's share, another $ 50 to be considered as the defendant's share, and the remaining $ 50 to be considered as the witness's share. That three persons were to share in the profits arising in the course of their joint trade, which was to continue for an indefinite period; and that on the dissolution of the partnership, the plaintiff was to be entitled to receive his $ 150, $ 50 from the defendant, and $ 50 from the witness, exclusively of his one third of the profits which might be made by the partnership, and also whether there should be a profit or loss in their business. The witness also proved that he was present when the [**2]  plaintiff applied to the defendant for an account of the profits, which the defendant refused, alleging that the plaintiff was not entitled to any part of the profits, but paid the plaintiff a sum of money, the amount whereof he did not know, it being in part of the sum originally advanced by the plaintiff, but he believed it to be less than the $ 150 advanced as aforesaid. The witness also proved, that in a conversation between him and the defendant, the defendant stated that he would raise an account against the plaintiff, which would more than extinguish the $ 150 advanced by the plaintiff at the commencement of the partnership, provided the witness would swear to it. The witness also proved, that after the commencement of the partnership, and previous to the defendant's refusal to account, he continued to live with the defendant, who had the management of the business, and that while living with the defendant he, as a partner, collected sundry debts owing to the concern. The defendant then prayed the court to direct the jury, that Rice, the witness produced on the part of the plaintiff, was not a competent witness; and also, that if the jury should believe the foregoing facts to [**3]  be true, that in point of law they constitute a partnership, and that it is not competent for the plaintiff, in the present form of action, to recover against the defendant. Both of these directions the county court, (Nicholson, Ch. J.) refused to give; but directed the jury, that the refusal by the defendant to exhibit an account of the profits, alleging that the plaintiff was entitled to no part thereof, and the payment by him to the plaintiff of a part of the original sum advanced amounted to a dissolution of the partnership, and that upon its dissolution the plaintiff had a right of action in his individual capacity against each of the other copartners in their individual capacity, for the sum of $ 50 loaned them originally, or for so much thereof as remained unpaid at the time of the institution of the suit. The defendant excepted. Verdict and judgment for the plaintiff for $ 103 damages, and costs. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Boyd, for the Appellant. The claim in this case was for $ 50, and the verdict, and judgment thereon rendered were for $ 103, a sum recovered beyond the amount which was due, except upon the principle [**4]  of profits made in a partnership transaction; because allowing legal interest upon the sum advanced, the verdict could not exceed $ 65, even supposing not a cent of money had been paid to the plaintiff by the defendant subsequent to the advance of the $ 50, which is proved not to have been the fact. The first objection to the opinion of the court below is, that no witness is competent to prove a partnership establishing his interest therein, because of the fraud which might be practised by the admission of such evidence; and the second objection is, that the plaintiff misconceived his remedy, the same being only in a court of chancery; because no settlement ever was had, or account stated. The plaintiff might have received, out of the copartnership, more than his capital and profits, and now may be indebted to the partnership, which facts only can be established in chancery. Smith vs Barrow, 2 T. R. 476. Esp. N. P. 96, and Index, tit. Partnership. The express promise to pay the $ 50 loaned, is but what the law would have implied, and does not change the mode of discovery. The refusal to account, though it may amount to a dissolution of the partnership, cannot rescind the original contract,  [**5]  the same having been partly executed. Huntt vs Silk, 5 East, 452. It is not known but the partnership has lost instead of having made profit, and that the defendant, being the acting partner, may have paid the amount of the claims against the firm to ten times the amount of the capital advanced. By the mode of proceeding resorted to, the defendant was precluded from making every defence allowed a copartner in equity, and has applied to a court which, from its organization, cannot do complete justice to the parties. It may also be observed, that on the final liquidation of the partnership accounts, the plaintiff may appear to have not only received his proportion of the profits, but his capital, and the capital advanced to the defendant, and more, and instead of being a creditor may be a debtor of the defendant. If it should be contended that here is a special promise varying the general rights of partnership, then it is a special contract, and ought to have been declared on as such, and there ought to have been a special averment that the partnership was dissolved, whereby an action had accrued to recover the above sum of $ 50, and a general indebitatus assumpsit will not lie. Wherever [**6]  a duty is to arise, on the happening of a particular event, and it is uncertain at what time the event may take place, or that it may ever take place, this amounts to a special agreement; and before that duty can be enforced in a court of justice, there must be an averment that the event has happened on which the duty arises. As for instance if a promise be made to pay a certain sum of money on A's going to Rome, or if money should be lent to be repaid on A's going to Rome, and returning therefrom; on these events happening, the money can only be recovered by a special action on the case, and not on a general indebitatus assumpsit. This form of action is only applicable to cases, where the contract is executed, and the debt is immediately due, or, what is the same thing, payable at a time certain and specified--as in the common cases of goods sold and delivered, payable immediately, or in six months. But if goods should be sold to A, and payable when a certain event should take place, then this agreement is special, and must be declared on as such, and not generally. These distinctions, it is conceived, are too obvious to require authorities. But the promise made and proved in this [**7]  case is nothing more than what arises by implication of law; and therefore does not vary the relative situation of the parties, or give other remedies than are provided for in the ordinary cases of partnership by a suit in chancery. Because it is obvious, that where one partner advances to his active partner the whole capital, on a dissolution of the same he must be charged in the settlement of the concern for the money so loaned him, and this duty arises immediately on the dissolution of the partnership. The express promise therefore, raises no other obligation, nor can be enforced in no other manner, than is pointed out in all partnership cases. Besides, this doctrine would lead to this inconvenience, that the rights of the parties in the same transaction must be determined before two forums--First the $ 50 to be recovered in a court of law, and the partnership transaction in a court of chancery; and the common law abhors the splitting and multiplying of suits. And what is still more inconvenient and absurd is, that on the liquidation of the partnership, on a final account the plaintiff might be found to be a debtor, which would enable the defendant to obtain an injunction, thereby [**8]  generating three suits, which the proper tribunal would settle in one--an absurdity in judicial proceedings which the court surely, by every reasonable construction, will endeavour to avoid. The court will also observe, that by the plaintiff's own showing, the jury must have taken into view the profits, because the proof adduced on his part proved a receipt of a greater sum than that loaned, which is an additional proof of the impropriety of sustaining such actions in a court of common law; and which proof was a sufficient ground, in itself, to have defeated the action of the plaintiff without any other cause.

W. Dorsey, for the Appellee. It appears that the appellant, appellee and the witness, agreed to enter into partnership, in which there was no limitation of time as to how long the partnership should continue. The appellee loaned to the appellant, and the witness, each $ 50, before the commencement of the partnership. There is no good ground of objection to receiving the evidence of the witness, because of his being one of the partners. The payment made by the appellant to the appellee was evidence of the dissolution of the partnership, because it was to be dissolved when [**9]  the $ 50 was paid. It cannot be a claim against the partnership, although the money was to constitute a part of the fund put into the capital. The loan was made to each partner, the appellant and the witness, in his separate capacity, and it cannot be said to be a partnership transaction, being loaned before the partnership. There is no solidity in the objection as to the form of action. If there had been a condition annexed to the payment of the money, then it must be specially averred. The dissolution of the partnership was an event that must take place, and it cannot be assimilated to an event which might never happen.  

JUDGES:
The cause was argued before CHASE, Ch. J. BUCHANAN, GANTT, and EARLE, J. GANTT, J. dissented.  

OPINIONBY:
EARLE 

OPINION:

 [*37]  EARLE, J. delivered the opinion of the court. It appears to the court that the judge erred in his direction to the jury, "that the facts proved amounted to a dissolution of the partnership." He ought to have left it to the jury to decide, whether from the facts and circumstances proved, the partnership in question was dissolved. The dissolution of the partnership was an important point to be established by the plaintiff; for the money claimed [**10]  was not due until the partnership was dissolved.
Rice, the witness, testified to an undertaking distinct from the partnership, which the court are of opinion may be enforced in a court of law in the form of action used, and without declaring upon a special contract between the parties.
GANTT, J. dissented.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

34 of 38 DOCUMENTS 

JOHNSTON vs. COPE ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 89; 1810 Md. LEXIS 19 

June, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit by the appellant against the appellees, on an agreement for the sale of six bales of linens called Flanders sheetings, to be furnished and supplied by the latter to the former, of good and merchantable linens, at and for a large sum of money, and for which payment had been made. The declaration stated, that although six bales were afterwards delivered, yet they were not good, sound, merchantable linens, but on the contrary bad and unmerchantable, &c The general issue was pleaded; and at the trial the plaintiff prayed the court to direct the jury, that if they should be of opinion from the testimony, that the merchandize in question was sold to the plaintiff for the full merchantable price, that it implies a warranty that the same was, at the time of the sale, good, sound and merchantable; and that if the merchandize in question was unsound, and that unsoundness was not obvious to the buyer at the time of the sale, in the state in which such goods are usually sold, the plaintiff is entitled to recover on the ground of such implied warranty. This direction the court, [Nicholson, Ch. J. and Hollingsworth, A. J.] refused to give, being of [**2]  opinion that the bare circumstance of selling goods and chattels for a full price, does not of itself raise a warranty, and that the seller is not responsible for the unsoundness of such goods and chattels, unless he warranted them to be sound, or knew of their unsoundness at the time of sale, in which latter case he would be liable for the fraud. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Nisbet, for the Appellant. The common law maxim of caveat emptor is now exploded, and the more reasonable principle of the civil law, "that a fair price implies a warranty," has been adopted. 2 Wood. Lect. 415, & 1 Pow. on Cont. 150. The plaintiff is not bound to show that the defendant knew of the defect or damage in the things sold; for a man ought to have skill in the way of his business, and ignorance is considered as a deceit upon those with whom he deals. 3 Wood. 199. Bevingsay vs. Ralston, Skin. 66; & Denison vs. Ralphson, 1 Vent. 366. The court below grounded their opinion principally on a case of Parkinson vs. Lee, 2 East, 314, and the case of Stuart vs. Wilkins, 1 Doug. 20. The first of these cases was a sale [**3]  by sample, and the commodity was proved to be the same as the sample. That is a very different case from the one before this court, where the sale was of linens in bales, without opening them, and without the exhibition of a sample. The court below go farther in their decision than the case required; and so far as they appear to decide the case before the court, it is a mere obiter opinion, and that founded on another obiter opinion of Lord Mansfield; for the case Stuart vs. Wilkins was merely as to the form of the declaration. The common understanding of mankind, and the general usage of merchants, is in favour of the implied warranty. An instance has rarely occurred where, on a sale of goods by invoice or in bales, a concealed damage has been discovered, in which the vendor has refused to refund the money, and take back the goods, or compensate for the injury sustained. Upon this principle substantial justice is done, for the loss will ultimately fall upon the person who knew of the damage, and fraudulently packed up the goods as merchantable.

T. B. Dorsey, for the Appellees. The common law principle of caveat emptor never has been exploded as to the quality of goods sold, but [**4]  only as to the title. 2 Blk. Com. 451, (and Christian's notes.) That there is no implied warranty as to the quality, is evident from 3 Blk. Com. 164. Parkinson vs. Lee, 2 East, 314. Williamson vs. Allison, Ibid 446. If a sound price implies a warranty, why are express warranties ever made, or why are actions of deceit ever brought? The universal understanding of every man buying and selling is against implied warranties. The authorities of 2 Wood. Lect. 415, 3 Wood. Lect. 199, and 1 Pow. on Contracts, 150, are the incautious dicta of commentators, unsupported by the decision in Denison vs. Ralphson, 1 Vent. 366, and Bevingsay vs. Ralson, Skin. 66, on which they profess to be founded; these cases were on express warranties, and it was therefore properly decided that the scienter need not be proved.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, GANTT, and EARLE, J.  

OPINION:

 [*91]  JUDGMENT AFFIRMED.  

35 of 38 DOCUMENTS 

OWINGS vs. REYNOLDS, et al. Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 141; 1810 Md. LEXIS 29 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   ERROR to the General Court. This was an action of ejectment for a tract of land called Taylor's Forest, lying in Baltimore county. The case as agreed upon, and submitted to the court, was this: John Owings, deceased, being seized in fee of the tract of land called Taylor's Forest, by his last will and testament, dated the 8th of February 1762, devised, (among other things,) as follow: "And as to what it has pleased God to bless me with, I dispose as follows," &c. "I give and bequeath to my son Caleb Owings, 60 acres of land, being part of a tract of land called Taylor's Forest, beginning," &c. "I give and bequeath to my loving wife, Asenath Owings, my dwelling plantation, and the remainder part of my part of Taylor's Forest, joining the said plantation, except the 60 acres willed to my son Caleb, to her during her natural life, and after her decease to fall to my son Lot Owings; and if he should die under age, its my will the said land should fall to my son Caleb, and my daughter Asenath Odell." John Owings, shortly after the execution of his will, died seized and possessed of the land therein mentioned. Asenath Owings, wife of John Owings, the testator, after her husband's death [**2]  entered upon the land, and became possessed thereof, claiming the same under the devise, and occupied and possessed it until her death, which happened some time in the month of April 1792. Lot Owings named in the will, attained the age of 25 years, and died intestate in the year 1773, leaving the lessors of the plaintiff, Rachel, Nancy, Sarah and Lot, his heiresses at law, and who have intermarried with Nicholas, Charles and John Reynolds, and John Peck, the other lessors of the plaintiff. The defendant, Caleb Owings, is the same person named in the will of John Owings, to whom, and a certain Asenath Odell, the land was limited over by the will, in case Lot Owings should die under age; and Caleb Owings, the defendant, is the eldest son and heir at law of John Owings, the testator.

CHASE, Ch. J. The question submitted to the court in this case is, what estate is devised to Lot Owings by the will of his father John Owings, in the lands in question-- an estate in fee simple or for life?

It is admitted that there are not any words of limitation or inheritance in this will superadded to the devise of Lot Owings; and also, that unless the testator has used words in his will indicating [**3]  an intention to give a fee in the lands in controversy to Lot Owings, an estate for life only passed to him. But it is contended, the testator has used words in his will which, when the several parts of it are considered together, plainly import an intention to give a fee to Lot Owings; and three circumstances are principally relied on as indicative of such intention--1. The introductory clause--2. The limitation over to Caleb Owings and Asenath Odell, if Lot Owings died in his minority; and 3. There being no clause disposing of the residue.

It is established beyond controversy, that the intention of the testator is to prevail if not repugnant to some rule or principle of law; and that such intention is to be collected from the words of the will. That no technical words are necessary to create a fee. But the principle established by analogy to the rules prevailing in the limitation of estates by deed at common law is, that if law is given generally without adding words of limitation, an estate for life only passes; and this rule, though it often interferes with and defeats the intention of the testator, is so firmly settled, that no probable conjecture can shake it. As there are [**4]  not any words appropriated in a will to the creation of a greater estate than for life, the courts, without infringing the above rule, have decided, that if it appears on consideration of the whole will, to be the plain intention to give a fee in the land, a fee passes. It is also an established rule in the construction of a will, that the heir at law is not to be disinherited unless by express words or necessary implication.

Having premised thus much, I will now consider those circumstances from which it is said a plain intention in the testator to give a fee to Lot Owings, is to be inferred.

Introductory clauses are in general mere form, and inserted without any particular or precise meaning being annexed to them; for almost every person who makes a will, sets down with an intention to dispose of his whole estate; and therefore they cannot have much influence--and only in favour of the clear intention of the testator. Denn vs. Gaskin, Cowp. 659, 660.

The introductory clause in this case, "as to what it has pleased God to bless me with," can have no weight to induce the court to decide a fee passed to Lot Owings. It does not contain the word estate, nor any word of [**5]  similar import, from whence an inference can be drawn, by coupling it with the clause in question, that the intention was to give a fee; and besides, there are no words to connect the devise of the land in question with the introduction, so as to pass the whole interest. Denn vs. Gaskin, Cowp. 660.

As to the limitation over, if Lot died in his minority. It appears to me, the meaning of the testator, to be collected from the words of his will, was that Lot Owings should have an estate for life, with a contingent remainder to Caleb Owings and Asenath Odell for their lives, on the contingency of Lot Owings dying in his minority. But if the contingency did not happen, there are no words to show Lot's estate was to be enlarged to a fee. If it could be implied, it is by no means a necessary implication, for the substitution was not to the heir at law, but to Caleb Owings and Asenath Odell. Fowler vs. Blackwell, 1 Com. Rep. 353.

Caleb Owings is the heir at law who is entitled to that part of the real estate which is not disposed of; and the heir at law is not to be disinherited unless by express words or necessary implication. Gascoign vs. Barker, 3 Atk. 10. 2 Ba. Ab. 66, 81.  [**6]  Byas vs. Byas, 2 Ves. 164, 165.

Nothing can be inferred from the testator's not disposing of the residue.

In order to make a devise of lands, without any limitation added, a fee, such an intention must appear as is sufficient to satisfy the conscience of the court in pronouncing it such; if it is barely problematical, the rule of law must take place. Roe vs. Blackett, Cowp. 240..

DUVALL and DONE, J. were of opinion, that Lot Owings took a fee, and judgment was consequently entered on the case stated, for the plaintiff, and the defendant brought the present writ of error.  

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Ridgely, T. Buchanan and Harper, for the plaintiff in error, cited Frogmorton vs. Holyday, 3 Burr. 1618; and Tomkins vs. Tomkins, cited in 1 Burr. 234.

Johnson, (Attorney General) for the defendant in error, referred to Brogden vs. Walker's Ex'r. &c. 2 Harr. & Johns. 285, and Chew's Lessee vs. Weems, 1 Harr. & M'Hen. 463. S. C. 2 Harr. & Johns. 173, (note.) He also referred to the case of Frazier's creditors vs. Frazier's heirs, in the court of chancery, a.

a In the case of Frazier's creditors vs. Frazier's heirs, a bill was filed by the creditors of Alexander Frazier, for the sale of his real estate, for the payment of his debts. The answer of John Alexander Frazier, an infant defendant, by his guardian, among other things stated, that Alexander Frazier died in June 1790, above the age of twenty years, intestate, and without leaving issue, leaving the said J. A. Frazier, his only brother, his heir at law. That the father of Alexander and J. A. Frazier, by his will dated the 18th of March 1777, devised among other things as follow, viz. "I give and bequeath all the land that I am possessed of to be equally divided between my two sons, Alexander and John Alexander, to them and their heirs, for ever; but if in case either of my said sons should die without any heir lawfully begotten of his body, or before he arrives to the age of twenty years, that then in such case his part to be the sole right and property of my surviving son, his heirs and assigns, for ever." "Item. Whereas I have given all my land, to my two sons, my will is that the devision line shall begin at Rake's land, and so running towards Fishing creek. My son Alexander to have the first choice of the land" "Item. My will and desire is, that my son Alexander do, out of his part of my estate, expend so much money as will be sufficient to give my son John Alexander a good education." By the will the testator appointed his son Alexander his executor. It was submitted to the chancellor to determine what estate passed to Alexander under this devise. It does not appear from the papers in the case that the chancellor decided what estate Alexander took under the devise. In November 1795, an agreement was entered into by the counsel of the parties, in which it is stated that Alexander, under the will of his father, had the right of election as to which part of the land he would choose; and it being doubtful whether any election was made by him, and also doubtful whether the court of chancery could determine the fact of election, for the prevention of controversy in future, it was agreed that the chancellor, with the consent of parties, should decree a sale of the whole of the lands devised, &c. the proceeds of the land to be equally divided between the creditors of Alexander and the defendant, each one half. The chancellor decreed accordingly. A sale having been made, J. A. Frazier exhibited an account, in which, amongst other matters, he charged the deceased as follows, viz:

"To a charge on the estate for default of expending money in the education of John Alexander Frazier, as directed by the will of Alexander Frazier, (the father,) deceased, say 8 years at £  40 per year,    £  320 0 0."

HANSON, Chancellor, (August 1799.) This charge is founded on the claimant's construction of his father's will. Now supposing it the intent of the will to charge Alexander with his brother's education and maintenance, the strangest words imaginable are used. It is not "I give Alexander one half of my estate on condition that he lay out the sum of --in the complete education and maintenance of his brother at some approved school," or, "I will that the part of my estate devised to Alexander be charged with the expense of providing a good education to his brother, and likewise completely maintaining him at some approved school." No! it is, "my will and devise is, that my son Alexander, do, out of his part of the estate, expend so much money as will be sufficient to give my son John Alexander a good education."

It is apparent from the whole will, (setting aside this disputed part,) that the testator contemplated perfect equality between his two sons, except that he gives Alexander, the elder, the choice of two equal parts, and makes him executor; which is just what was reasonable, &c.

Now, by changing the disposition of the words, and putting "out of his part of the estate," at the end of the clause, it stands perfectly consistent with that intended equality, and it is well observed by counsel, that transpositions are frequently made for the purpose of supporting a rational construction of the whole. It may be observed, that there are few men, who, in speaking or writing do not express themselves in such a manner, that if you understand them, according to the strict rules of grammar, you make them speak contrary to their intention.

It is alleged, without proof, that Alexander was burthened with the education of his brother, on account of his (the said Alexander's) having already received a good education; and that by so charging him, equality was preserved. But it is not so. In such a case, the eldest son would be educated at the charge of the whole estate, and the younger at the charge of the elder's part.

For illustration, suppose the whole estate to be £  4000, and that £  500 had been expended in educating Alexander, more than had been expended on John. To make them equal it ought to be directed that £  500 shall be expended on John, and the residue divided between them. In that case, they will have been educated at equal expense, and the share of each will be £  1750. But according to the construction contended for, they will have been educated at equal expense, and John will get £  500 more than his brother; that is, they each share £  2000 out of the £  4000, John has his part clear; but £  500 is taken from Alexander to educate and maintain John. When the contemplation of equality is so apparent, when an easy obvious transposition will support that equality, and when, without the transposition, such inequality takes place, it is impossible to admit the claimant's construction of the will.

"My will and desire is, that my son Alexander, out of his part of the estate, shall expend so much money," &c. as already has been observed, is strange language to constitute a charge on Alexander's part. "My will and desire," are words very significant. "To expend so much money," are equally so. In short, the meaning of the whole clause was, that Alexander, the executor, should be authorised to lay out as much of John's part of the personal estate, as would suffice to give him a liberal education; without this provision in the will, John's education might be defective. The guardian, whom he might choose, or who might be appointed without the provision, might not think proper to expend so much money as might suffice, particularly if the annual profits should not correspond with the proofs in this cause, or might happen in some year to fall short.

In addition to all this--supposing us compelled to take his for Alexander's, it may be asked, whether good education must comprehend maintenance; or whether, to prevent the great inequality in favour of a younger son, education might not mean barely the price of tuition, books, &c? Lodging, food and clothing, must be had, whether at school or at home; and therefore it might be said, that he who is charged with education is not of course charged with those articles of necessity.

In construing a will, it is notorious that the judges have never considered the question as a mere point of grammar. The question ever is, "what was the intent of the testator," to be collected from the whole of his words. Amongst grammarians there is no doubt that his is considered in propriety as referring to the antecedent, if there be one, and not to a subsequent. It may indeed, in this case, be contended that the testator was not aware of any antecedent, or any rule of grammar. It is probable that he was no grammarian.

Let it just be supposed that he had appointed two executors, and had said "my will and desire is, that my executors, (instead of saying my son Alexander,) do, out of his part of my estate, expend," &c. is there even a rigid grammarian who would say, that the testator violated the rules of grammar. No! he would say, "his" refers to the antecedent, if there be one, but the word "his" may well be placed so as to refer to a subsequent, as is the case of Mr. Frazier directing his two executors, out of his part of the estate, to educate his son John Alexander.

On the whole, from the fullest investigation of this case, and on full deliberation, it does not appear to the chancellor that John Alexander Frazier hath any just claim against the estate of Alexander Frazier. [**7]  

JUDGES:
The cause was argued before POLK, BUCHANAN, and GANTT, J. GANTT, J. gave no opinion.  

OPINION:

 [*144]  THE COURT reversed the judgment of the General Court.
GANTT, J. gave no opinion.
JUDGMENT REVERSED.  

36 of 38 DOCUMENTS 

HAWKINS'S Lessee vs. GCULD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 243; 1811 Md. LEXIS 20 

December, 1811, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Queen Anne's County Court. Ejectment for a tract of land called Macklinborough. Defence on warrant, and plots returned. At the trial the plaintiff, (now appellant,) read in evidence the certificate and patent of the tract of land called Macklinborough. He also traced his title from the patentee to a certain Judith Howden, who he proved to have intermarried with one Thomas Wyatt; and then read the following deed from Thomas Wyatt, and Judith his wife, to John Parsons, to prove an alienation of her title to Parsons, and his heirs, for ever, viz. "Among the land records of Talbot county, among other things the following is enrolled, to wit, Thomas Wyatt, and Judith Wyatt his wife, the said Judith being first privately examined as the law requires, come before the court, and did acknowledge this following deed of sale unto John Parsons: This indenture made the 16th day of November, in the eighth year of the Dominion of Charles, absolute Lord and Proprietary of the Provinces of Maryland and Avalon, Lord Barron of Baltimore, &c. 1683, between Thomas Wyatt, and Judith Wyatt his wife, of the one party, and John Parsons of the other party, both inhabitants in Talbot county, in [**2]  the aforesaid province of Maryland--Witnesseth, that Thomas Wyatt, with the consent of Judith Wyatt his wife, for and in consideration of five thousand and eight hundred pounds of tobacco, to him in hand already, before the sealing and delivery hereof the said John Parsons, the recept whereof he doth acknowledge, and for every part thereof doth hereby absolutely and clearly exonerate, acquit and discharge, the said John Parsons, his heirs, executors, administrators and assigns, and by these presents hath given, granted, bargained, alienated, sold, enfeoffed and confirmed, unto him the said John Parsons, his heirs and assigns, for ever, a parcel of land lying and being in Chester river, and in Talbot county, and in the said province of Maryland, beginning at," &c. "containing and now laid out for one hundred and ninety and nine acres, more or less; to have and to hold the said lands for ever, together with all ways, easements and privilledges, to the same belonging or appertaining, together with all writing, deeds, charters, devidents, touching or concerning or any part or parcel thereof, to have and to hold the said parcel of land according to the bounds above mentioned, together with [**3]  all meadow or feeding pasture grounds, underwoods, water courses, fishing, fowling ways, profits, commodities, commons of pastures, hereditaments whatsoever, to the said lands, the said lands being lately in the tenure or occupation of the said Thomas Wyatt, and also all the estate, right, title and interest, use or possession, property, claim and demand whatsoever, of him the said Thomas Wyatt, of, in and to, the same, with all writings, and all deeds, evidences, charters, transcripts, fines, pattents, court rolles, excripts and muniments whatsoever, touching and concerning the premises, or any part or parcel thereof, to have and to hold, and shall and will, forevermore, warrant and defend by these presents; and the said Thomas Wyatt, at the time of ensealing and delivery hereof, of these presents, is and standeth, is, and until a good pure and perfect and absolute estate of inheritance of all and singular the before granted premises, and every part thereof, shall be fully vested, settled and executed, in and upon the said John Parsons, and his heirs, according to the true intent and meaning of these presents, shall remain, continue and beseized, of an in the said lands, and all and [**4]  singular other the premises, in and by these presents granted, bargained and sold, with all and every of these rights and appertenances, and members, of a good, perfect and absolute estate of inheritanced, in fee simple, without any condition or limitation of any use or user, or estates, in or to any person or persons whatsoever, to alter, change, defeat, determine, or make void the same; and that the said Thomas Wyatt, at the time of ensealing and delivery of these presents, hath full power, good right, and lawful authority, to grant, bargain, sell, and convey, and all and singular the before hereby granted or mentioned premises to be granted, premises with their and every of their rights and appertenances, unto the said John Parsons, his heirs and assigns, in manner and form aforesaid; and that he the said John Parsons, his heirs or assigns, and every of, shall and may, by force and virtue of these presents, from time to time, and of all times hereafter, lawfully, peacably and quietly, have, hold, occupy, possess and enjoy, the said lands, and all and singular the before granted premises, with their and every of their rights, members and appertenances, to have, receive and take,  [**5]  the issue and profits thereof, to his and their own proper use and behoof for ever, without any lett, suit, trouble, denial, interruption, eviction or disturbance, of the said Thomas Wyatt, his heirs or assigns, or of any other person or persons whatsoever, lawfully claiming from or by, or under him, or any of them, or by his or their means, act or consent, title, interest, privity or procurement, and that free and clear, and freely and clearly acquitted, exonerated and discharged, or otherwise, from time to time well and sufficiently save and keep harmless by the said Thomas Wyatt, his heirs, executors or administrators, of and from all manner of fines, or other gifts, grants, bargains, sales, leases, mortgages, joynters, dowers, title of dower, statute merchants, and of staple, recognizance, extents, judgments, executions, uses, entailes and issues, with all other titles, troubles, incumbrance whatsoever. In witness whereof the before named Thomas Wyatt, and Judith Wyatt his wife, of the one party, and John Parsons of the other party, hath interchangeably set their hands and seals the day and year above written.

Signed, sealed and delivered, in the presence of us.

John [**6]  Punowes,

his

Richd.   Bridge."

mark

his

Thomas Wyatt, [Seal.]

mark

her

Judith   Wyatt, [Seal.]

mark

This deed was certified by the clerk of Talbot county court to be copied from one of the land records of that county. The plaintiff also read in evidence a deed from John Parsons to John Hamer, and one from John Parsons and Dameras Parsons his wife, to John Hamer. He then read in evidence the will of John Hamer, devising his dwelling plantation to his daughter Mary Hamer, and proved that a certain Mary Hamer married one John Chaires, and by him had two sons John Chaires and James Chaires, of whom John Chaires was her eldest son and heir at law; that she survived her said husband Chaires, and intermarried with a certain Solomon Clayton, and after his death she became the wife of one Edward Downes, and died the widow of Downes in the year 1779. The plaintiff also proved by a witness, that he, the witness, was at the funeral of the said Mary Downes, and when he had returned home with her mother, who is now dead, he was informed by her, that the maiden name of the said Mary Downes was Hamer, but that he did not remember to have [**7]  understood from her that the said Mary Downes was the daughter of John Hamer. The plaintiff also proved by said witness, that the late John Chaires, deceased, who was sometimes called Preacher John, was the eldest son of the above named John Chaires, son of the said Mary Downes, and that the said Mary Downes, at her decease, was a very old woman. By another witness--that many years ago he lived in the family of the above named Mary Downes, and that he constantly understood from her and others, that preacher John Chaires was her grandson, the son of her eldest son John Chaires, at that time deceased; and that the plantation in Johny Cake Neck, held by the said Mary Downes, she delivered up to her said grandson in her life-time. Which last mentioned evidence was offered, not to prove a possession in the plantation aforesaid, but merely to show that John Chaires, preacher, was grandson and heir at law of Mary Downes. The plaintiff then read in evidence a deed from the said preacher John Chaires, to the lessor of the plaintiff. When the plaintiff had thus traced his title from the patenfee, the defendant moved the court to instruct the jury, that the above mentioned deed from Thomas Wyatt [**8]  and Judith his wife, to John Parsons, was inoperative to pass a fee from Judith Wyatt to John Parsons, she not being a grantor in that deed, and that there was a chasm in the evidence, and that the plaintiff, who is to recover on the strength of his title, could not therefore support his ejectment. The court, [Purnell, A. J.] was of opinion, and did so state to the jury, that the said deed from Thomas Wyatt and Judith his wife, to John Parsons, was ineffectual to pass the fee simple estate to John Parsons, the said Judith not being a grantor in the said deed, and that the title of the plaintiff was not fully made out. The plaintiff excepted; and the verdict being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Carmichael, for the Appellant, contended, that a different construction will be given to a deed of 1683 from what would be given to a modern deed; and although the deed in question would be invalid if a recent one, it was valid as an ancient deed. He referred to 2 Blk. Com. 298, 379, 380. Wright vs. Kemp, 3 T. R. 470; and Langdon vs. Goole, 3 Lev. 21. In the deed, the name of Judith Wyatt is inserted in the premises. Lord Say and Seal's case, 10 Mod. 46. That [**9]  if the deed was originally invalid it was made valid by the acts of 1674, ch. 2, s. 4, and 1715, ch. 47, s. 4.

Kerr, for the Appellee The deed is incompetent to pass the fee in the land from Judith Wyatt, either at common law or under the acts of assembly. It does not, on the face of it, purport to pass any interest except that of the husband. 1. Judith Wyatt has not granted. 2. If she did, yet the deed was not properly acknowledged.

1. Judith Wyatt doth not grant either in the premises, or in the habendum. 2 Blk. Com. 298. If the deed can operate, it must be as a deed of bargain and sale. It cannot operate as a bargain and sale, for there is no money consideration. 1 Blk. Com. 464. Gittings's Lessee vs. Hall, 1 Harr. & Johns. 14. Chaney's Lessee vs. Watkins, Ibid 527. The words of the conveyance, must express the extent of the interest to be passed. Wood's Convey. 228, 239. The deed must be sealed and delivered by the party contracting. Co. Lill. 35, b. There must be a grantor, grantee, and a thing granted. 2 Blk. Com. 296, 297. Wood's Convey, 236.

2. The deed was not executed and acknowledged by Judith as the acts of assembly required. 1 Bac. Ab. 467. Wood's Convey.  [**10]  167, 169. Webster vs. Hall, 2 Harr. & M.Hen. 19. Flanagan vs. Young, Ibid 38. Lewis vs. Waters, 3 Harr. & M.Hen. 430. Mayson's Lessee vs. Sexton, 1 Harr. & M.Hen. 276; and Hammond's Lessee vs. Brice, Ibid 323, 333. It is not stated when the deed was recorded.

Carmichael, in reply. The deed was acknowledged in open court, and therefore the form of the acknowledgment need not appear. It is also aided by the act of 1807, ch. 52. The deed was recorded in time, for having been acknowledged in court it was left with the clerk to be enrolled, and his omission of the time of enrolment will not invalidate it.  

JUDGES:
The cause was argued before POLK, NICHOLSON, and JOHNSON, J.  

OPINION:

 [*248]  JUDGMENT AFFIRMED.  

37 of 38 DOCUMENTS 

RINGGOLD vs. TYSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 172; 1810 Md. LEXIS 38 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Washington County Court, from a judgment rendered in favour of the plaintiff in that court, (the present appellee,) in an action of assumpsit on a promissory note, drawn by the defendant, (the appellant,) on the 5th of May 1804, payable to S. Wilmer, or order, for $ 1000, and by Wilmer endorsed to the plaintiff. The declaration also contained counts for money lent and advanced, for money had and received, and for money laid out, expended and paid. Plea, the general issue.

1. At the trial in March 1807, the plaintiff read in evidence the promissory note declared on, and which was admitted to have been drawn and signed by the defendant, and endorsed by Wilmer. [The endorsement by Wilmer was in blank.] The defendant then read in evidence a release, dated the 26th of March 1807, from himself to Wilmer, "of and from all claims, debts, dues and demands, of every nature and kind whatsoever," &c. which was admitted by the plaintiff to be duly executed, signed, sealed and delivered, by the defendant to Wilmer. And also a release, dated the same day from Wilmer to the defendant, "of and from all manner of debts, dues and demands, contracts and agreements, of every nature [**2]  and kind existing between them," &c. This release the plaintiff also admitted was duly executed, signed, sealed and delivered, by Wilmer to the defendant. The defendant then produced Wilmer, and offered to prove to the jury by him, that on or about the 10th of July 1804, he as the great of the defendant, paid the amount of the note to the plaintiff, to whom the same had been endorsed by Wilmer. But the court, [Clagett and Shriver, A. J.] rejected the witness as incompetent to prove those facts. The defendant excepted.

2. The defendant then offered to prove by Wilmer, a conversation with the plaintiff, in which he admitted that he was not entitled to recover in this suit any thing from the defendant upon this particular note, the same having been paid. This evidence the court also refused to let him give. The defendant then prayed the court to direct the jury, that the plaintiff was not entitled to recover. This direction the court refused to give. The defendant excepted.

3. The defendant then offered to prove by Wilmer, that he the defendant drew the note, upon which this suit is brought, payable to him, Wilmer, for the purpose of raising money thereon for the use of him,  [**3]  the defendant, and without any value passing from Wilmer to the defendant, That Wilmer called upon the plaintiff with the note, and informed him that he was the agent of the defendant, and that he wanted to borrow money for the defendant upon the note. That the plaintiff did thereupon discount the note at a discount upon the sum therein expressed, at the rate of three per centum per month, and took and received from Wilmer, as the agent of the defendant, the note at the price of $ 940, which sum, and no more, the plaintiff paid to Wilmer for the defendant, as and for the price of the note. That in consequence of the money so paid, Wilmer endorsed and delivered the note of the plaintiff. But the court refused to permit Wilmer to be sworn to the jury to prove these facts, or any of them, and rejected him as an incompetent witness. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Martin, Key, and T. Buchanan, for the Appellant, stated, that the first and third bills of exceptions presented two questions--1. Whether or not a payee of a promissory note was a competent witness, in an action by the holder against [**4]  the drawer to prove payment--mutual releases having been executed to each other by the payee and drawer? And 2. Whether or not he was competent to prove that the note was void in its creation, as given on a usurious consideration? To show that he was a competent witness, they cited Clarke vs Shee & Johnson, Cowp. 199. Peake's Evid. 161, 144, 180, 181. Charrington vs. Milner, Peake's N. P. 6. Phetheon vs. Whitmore, Ibid 40. Humphrey vs. Moxon, Ibid 52. Adams vs. Lingard, Ibid 117. Rich vs. Topping, 1 Esp. Rep. 176. Jordaine vs. Lashbrooke, 7 T. R. 601. Birt vs. Kershaw, 2 East, 458. 1 Esp. Dig. 259. Staples vs. Oakes, 1 Esp. Rep. 332. Chitty on Bills, 282, 283, 284, 52, 205. Dickinson vs. Prentice, 4 Esp. Rep. 32. Shuttleworth vs. Stephens, 1 Campb. 407, (and note.) Kyd on Bills, 283. Brown vs. Davies, 3 T. R. 81. Lowe vs. Waller, Doug. 736. Abrahams, qui tam, vs. Bunn, 4 Burr. 2251. Baker vs. Arnold, 1 Caine's Rep. 275, 276. Twambly vs. Henley, 4 Mass. Rep. 442. Bliss vs. Thompson, Ibid 491. Bosanquet vs. Dashwood, Co. temp. Talb. 38; and Wilson vs. Lenox, 1 Cranch, 201, (note.)

On the second bill of exceptions, they stated the question to be, whether an endorsee could bring an [**5]  action in his own name on a promissory note endorsed in blank by the payee? To show that he could not, they cited Clark vs. Pigot, Salk. 126. Lucas vs. Haynes, 2 Ld. Raym. 871. Bull. N. P. 275, 278. 1 Esp. Dig. 28. Chitty on Bills, 117; and Gray & Biddle vs. Wood, 2 Harr. & Johns. 328.

W. Dorsey, Harper, and Winder, for the Appellee, on the first and third bills of exceptions, cited Walton vs. Shelly, 1 T. R. 296. Bent vs. Baker, 3 T. Rep. 27. Charrington vs. Milner, Peake's N. P. 6. Phetheon vs. Whitmore, Ibid 40. Humphrey vs. Moxon, Ibid 52. Adams vs. Lengard, Ibid. 117. Rich vs. Topping, 1 Esp. Rep. 176. Hart vs. M'Intosh, Ibid 298. Jordaine vs. Lashbrooke, 7 T. R. 601. Caldwell vs. Bull, a. M'Cullough vs Houston, 1 Dall. Rep 441. Stille vs. Lynch, 2 Dall. Rep. 194. Baker vs. Arnold, 1 Caine's Rep. 258. Winton vs. Saidler, 3 Johns. Cas. 185. Coleman vs. Wise, 2 Johns. Rep. 165; and Churchill vs. Suter, 4 Mass Rep. 156.

a The case here referred to of Caldwell vs. Bull, in this court at December term 1809, was an appeal from Baltimore County Court. It was an action of assumpsit, for goods sold and delivered, and the general issue was pleaded. At the trial the defendant, (now appellee,) offered in evidence by way of set off, a promissory note drawn by the plaintiff, (the appellant,) in favour of William Hays, and by him endorsed to the defendant. The plaintiff then offered to prove by Hays, that while the note remained in his possession, and before he endorsed it to the defendant, he erased from the body of the note the name "William Hays," and in this defaced state delivered the note to one Barklie, a broker, and requested him to negotiate it by selling it, and that Barklie did offer it for sale, but was unable to sell it. That Hays afterwards inserted the name "William Hays" in the body of the note, and endorsed it to the defendant, to whom he communicated the circumstance of the erasure, before and at the time he endorsed the note. The defendant objected to the proof of the erasure by Hays, on the ground that it might tend to invalidate the note; and that Hays was an incompetent witness to invalidate an instrument to which he had given credit by endorsing it, and passing it away. And the court, [Nicholson, Ch. J. and Hollingsworth, A. J.] sustained the objection, and directed the jury, that Hays was an incompetent witness to prove the erasure. The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court, where the judgment was affirmed by consent. [**6]  

JUDGES:
This cause was argued before CHASE, Ch. J. GANTT, and EARLE, J.--BUCHANAN, J. having been concerned as counsel did not sit. The questions which arose in this case had been argued in this court on the Eastern Shore in the case of Lloyd vs. Tyson, before POLK, BUCHANAN, and GANTT, J.--EARLE, J. having been concerned as counsel did sit in that case.--NICHOLSON, J. did not sit in either case. POLK and BUCHANAN, J. concurred. GANTT, J. dissented. EARLE, J. concur.  

OPINIONBY:
CHASE 

OPINION:

 [*175]  CHASE, Ch. J. In this case, which is a suit brought by the endorsee of a negotiable promissory note against the 

 [*176]  drawer, three questions on bills of exceptions are brought before this court for their decision.
The first question is, whether the endorsor can be received as a witness to prove payment of the money to the plaintiff?
The second question is, whether he is a competent witness to prove the note was given on an usurious consideration?
The third question is, whether the endorsee of a promissory note can recover in his own name on an endorsement in blank?
The two first questions are of the greatest importance, and have claimed the particular attention of the court,  [**7]  because on our judgment depends one of the principal rules of evidence which will be adhered to or relaxed accordingly, in this state, in future.
These questions have been ably discussed by the counsel for the parties, and all the cases and law relating to them have been brought before the court, and with great strength of argument observed on.
The objection to the endorsor being received as a witness, is grounded on the rule laid down in Walton vs. Shelly, that no person shall be admitted as a witness to Impeach or invalidate an instrument or writing which he has signed and given credit to.
This is acknowledged to be a rule of policy, and adopted by the court in that case in conformity to a maxim of the civil law, neno allegans suam turpitudinem est audiendus. This as a rule of evidence was unknown in the common law courts in England prior to that case.
The rule that prevailed antecedent to that time, and as a rule of the common law, is, that every person not interested in the event of the suit was admissible as a witness.
It is certain this rule was deviated from, and I think infringed by the decision of the court in that case; and the evils resulting from it as [**8]  a general rule pressed so hard upon the court, and involved them in so many difficulties, by interfering with the decisions of the courts in other cases, as to induce them to modify it; and in three years afterwards they restricted it to the case of negotiable instruments; and after relaxing it from time to time, they exploded it in the case of Jordain vs Lashbrooke, 7 T. R. 601, and re-established the rule which prevailed according to the principles of the common law.

 [*177]  Unquestionably the rule in Walton vs. Shelly cannot prevail as a general rule, because in the cases of wills, deeds and bonds, the witnesses to them may be examined to impeach their validity; in the first case to prove the insanity of the testator, in the second case to prove the deed was not sealed or delivered, and in the third case to prove the bond was given on an usurious consideration--or that the obligor was unlettered, and that the bond was not read or was misread to him. The witnesses in these cases, by their attestations, held out there was no legal objection to them, and that they will prove those requisites which are essential to their validity.
The decision in Walton vs Shelly is [**9]  overruled by the court in Jordaine vs. Lashbrooke, and the law considered as settled in England. The case at nisi prius conformed to Walton vs. Shelly, while it remained the ruling decision, although the courts indicated an inclination to modify and relax the restriction. Lord Mansfield said, the rule is founded in policy, and on that ground it was adopted. It is the duty and province of the court dicere non legem, and if the rule was not known at that time as a rule of evidence at the common law, the court's opinion as to its policy would not warrant them in the adoption of it.
An accomplice is a legal and competent witness against the principal, and in giving testimony must declare his own turpitude and participation in the crime, which is a circumstance that impeaches his credit. The maxim of the civil law, when considered with reference to the common law, may be understood as affecting the credit of the witness, and declaring that he stands in that predicament which renders his testimony suspicious, and that he ought to be heard with caution.
At one time an underwriter on a policy, in a suit against another underwriter on the same policy, was held to be [**10]  an incompetent witness, and rejected from the supposed bias on his mind resulting from a community or similarity of interest. That doctrine has been exploded as a deviation from, or infringement of, the common law rule of evidence, that every person who is not interested in the event of the suit is a competent witness. An heir at law is admitted as a witness in a suit brought by his ancestor, relating to the bounds of his land, notwithstanding the bias on his mind from the expectation of his inheriting the land. All 

 [*178]  these cases indicate plainly, and recognize the rule, that a person not interested in the event of the suit is a competent witness, and cannot be incapacitated by the situation in which he stands, from whence a bias on his mind is inferrable.
It is the peculiar and exclusive right and province of the jury to decide on the credit of witnesses, and the court cannot declare them incompetent, from any conjectural influence on their minds inclining them to favour one party more than the other; the jury, in forming their opinion, will consider all circumstances attending the witness in giving his testimony.
The common law is part of the law of Maryland, and [**11]  cannot be abrogated or impaired by any principle or maxim of civil law. The rule of evidence, so often recurred to, is a rule established by the common law, and was in full force and operation in this state, at the time of the decision in Walton vs. Shelly, which introduced the maxim of the civil law, as an exception to that rule, on the ground of policy.
That decision has been the ground of the judgments in the courts of the states, and their decisions must rest on that authority, and cannot be entitled to more weight.
The maxim of the civil law may be considered as confined to the parties, and was so considered by the judges, (Gross and Lawrence.)
A plaintiff, whose action arises exturpi causa, shall not be heard in alleging his own turpitude in support of his action against a particeps criminis.
To illustrate the position, A promises B a sum of money if he will grant him an office which concerns the administration of justice, or procure it to be granted, and the office is obtained, and A refuses to pay the money--B cannot recover it. So if A gives B a sum of money to procure him an office, and B so expends the money, and the office is not obtained. A cannot [**12]  recover the money of B, or the person to whom it was paid.
So in the case of simony, where A promises to pay B a sum of money if he will procure him to be presented and instituted to a chapel, which was a donative in the King's gift; and B does procure him to be thus presented and instituted, B cannot recover the money of A.

 [*179]  In support of such actions the plaintiffs cannot be heard because of the illegality and turpitude of the consideration.
As to the third question. The legal operation of an endorsement in blank, in cases in which the sum is filled up in the bill, confers a right in the holder to consider it as a transfer to himself, or an authority to receive the money from the drawee, for the use of the endorsor, and he makes his election accordingly, by filling it up as a transfer or authority; and as it has not been filled up as a transfer in this case, the plaintiff below cannot support the action.
POLK and BUCHANAN, J. concurred
GANTT, J. dissented.  

CONCURBY:
EARLE 

CONCUR:

EARLE, J. I concur in the judgment of the court upon the two first bills of exceptions in this cause.
If the endorsee was not a competent witness for all purposes, it must be acknowledged [**13]  he was for some. He might have been sworn to prove that the note was paid by Ringgold to Tyson after the endorsement of it, and no solid objection could have been raised to his being permitted to state, that as the agent of Ringgold he made the payment.
A blank endorsement of itself transfers no interest in a bill of exchange or promissory note. Independent of the authorities referred to by the counsel of the appellant upon this point, a cause, lately determined in the court of appeals on the eastern shore, concludes the question. It was the action of Joseph Wood, and Elizabeth his wife, for the use of Benjamin Sluyter, against Gray & Biddle. It originated in Cecil county court, on a promissory note passed to the wife while sole, and by her endorsed in blank to Sluyter, whose pleasure it was to use the names of the husband and wife in the prosecution of his action. At the trial the defendants offered to prove, that value passed from Sluyter at the time of the endorsement, and was the consideration of it; and meant to contend, that the property in the note was transferred, and that the suit ought to have been in the name of Sluyter, as endorsee. [**14]  But the court held, that the title to the note was not assigned by the blank endorsement; and the rejection of the testimony having produced a bill of exceptions, their judgment was revised and affirmed in this court. 2 H. & J. 328.
In the third bill of exceptions in the record, a more serious point is presented for consideration, and in deciding 

 [*180]  it, I must also beg leave to dissent from the judgment pronounced by the court. I am for uniting with the courts of judicature in the commercial states of Massachusetts, New York and Pennsylvania, in giving stability to a legal principle that will restrain men from invalidating negotiable paper, to the credit and currency of which they have contributed by the endorsement of their names; as well for the sake of preserving within the union, a uniformity in the adjudication of great mercantile questions, as because I deem the principles of the case of Walton vs. Shelly, the law of this state. It has been adjudicated, it is true, since the establishment of our independence, and in this view, it is not a binding authority in our courts of justice; but it unquestionably contains a recognition of the [**15]  principle contended for, as a principle well understood in King's Bench in the year 1786, and perfectly familiar to the learned in the profession of the law at that period. Lord Mansfield, and the other judges, who sat in the cause, and particularly Judge Buller, treated the rule, "that a party to a negotiable instrument shall not be received as a witness to invalidate it," as a known and long settled general rule of law; and the counsel, who argued in behalf of the plaintiff and defendant, on the one hand asserted, and on the other admitted, the existence and propriety of the principle, and only differed about the application of it to the subject then under discussion. My deduction from the report of this case is, that the rule in question was established long anterior to 1786, and this opinion seems to receive strength from considering the case of Abrams vs Bunn, decided about the year 1768, where the rule is glanced at, if not recognized, by the judge, in stating the reasons of the judgment of the court. Whether this case is the law of Great Britain at this day, is a question which need not be inquired into. For it is certain that general principles, confessedly [**16]  a part of the common law at the time of our revolutionary war, cannot be affected or altered by the subsequent decisions of foreign tribunals. But if I was to hazard an opinion on the question, I should say that Walton vs. Shelly is still authority in England. Jourdaine vs Lashbrooke contradicts it; but it cannot be concealed, that the competency of witnesses was by that decision enlarged, to prevent evasions of a statute that materially affected the revenue of the kingdom; and it is to be remarked, that the 

 [*181]  case itself has never received the sanction of the supreme appellate jurisdictions of that country. When Winton vs. Saidler was determined in New York in the year 1802, (it was the first time the point occurred in that state,) it is impossible to suppose the judges were unapprized of Jourdaine vs. Lashbrooke; and yet we find them acknowledging the principles of Walton vs. Shelly in their fullest extant. They must have proceeded upon the ground that the latter case, from the peculiarity of its circumstances, did not unsettle the authority of the former, or, as I think on this occasion, they must have believed, that Walton vs. Shelly refers [**17]  to rules and principles which existed long antecedent to the controversy between those parties.
The case now before the court falls within the reason of Walton vs. Shelly, and according to my judgment ought to be decided by it, although there is a striking feature in the facts which distinguishes it in some degree from that authority, and from almost all the cases determined upon the same subject. It was not proposed to prove by Wilmer, the endorsee, that the note was given upon an illegal contract, and therefore void ab initio; but supposing it was a valid instrument, he was offered as an evidence to prove the illegality of the consideration upon which he transferred it to the endorsee. The cause of action itself was not to be impeached; but as the suit could not be sustained without the aid of the endorsement, a recovery was to be barred by showing it to be a nullity. The admission of the testimony thus putting it in the power of the witness, not merely to destroy a paper to which he had given credit by his name, but to abrogate his own act of endorsement, and thereby in effect release the defendant from a debt which, from any thing that appears to the contrary, is  [**18]  bona fide due and owing from him.
I am of opinion, that the judgment of the court below, in the third bill of exceptions, ought to be affirmed.
JUDGMENT REVERSED.  

38 of 38 DOCUMENTS 

MITCHELL, et al. vs. RINGGOLD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 159; 1810 Md. LEXIS 33 

December, 1810, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Washington County Court. Assumpsit on a promissory note, and for money had and received. Plea, the general issue.

1. The plaintiffs, (the present appellants) at the trial, read in evidence a paper purporting to be a promissory note, dated the 3d of July 1804, drawn by the defendant, (now appellee,) in favour of Simon Wilmer, or order, for $ 3000, and endorsed in blank by Wilmer. It was admitted to have been signed by the defendant, and endorsed by Wilmer, and that the whole of the paper, except the signature of the defendant, was in the hand writing of Wilmer. The defendant then offered in evidence, from the paper itself, that since it had passed from his, the defendant's hands, it had been altered by cutting off and obliterating the date it originally bore, and by giving to it a new and different date. He then prayed the court to direct the jury, that if they were satisfied that the date of the paper had been altered since it had passed from the hands of the defendant, and without his privity and consent, that then the paper offered no ground of action against the defendant, but was as to him a nullity. This opinion and direction the court gave. The plaintiffs excepted.  [**2]  

2. The plaintiffs then, to prove that Wilmer made the alteration in the date of the note, (if any such had been made,) as agent of the defendant, and was duly authorised to make the same, and that he made the same before the note had been passed to the plaintiffs, read in evidence an agreement between the plaintiffs and defendant in these words: "In some of the cases against Samuel Ringgold, the dates of the notes appear to be altered; it is admitted that these alterations were made by Simon Wilmer, while the notes were in his possession, and before he passed them to the plaintiffs." And to prove that Wilmer had authority from the defendant to alter the date of this note, the plaintiffs read in evidence twenty letters from the defendant to Wilmer, which were admitted to be in the hand writing of the defendant, and dated from the 5th of October 1801, to the 19th of June 1404, inclusive. He also read in evidence three notes for $ 2500, drawn by the defendant in favour of Wilmer, and by him endorsed, dated, one the 10th of July 1801, another the 10th of May 1803, and the other the 20th of September 1803; also another dated the 5th of May 1804 for $ 1000. The plaintiffs then offered [**3]  in evidence, that all the above notes, except the dates, the sums and endorsements, are in the hand writing of the defendant, and that the dates, the sums, and endorsements of Wilmer's name, are in the hand writing of Wilmer. They also offered in evidence, that the defendant lives now, and has lived for 10 years past, in Washington county. And also offered in evidence by a witness, that he had several times seen in the hands of Wilmer, notes bearing the signature of the defendant, but whether they had been signed by him he does not know, as he has never seen him write, and is not acquainted with his hand writing; that Wilmer had purchased goods of the witness, which were sent to the defendant. The defendant then, to show that the note upon which this suit is brought was transferred by Wilmer to the plaintiffs in discharge and satisfaction of a previous debt due from Wilmer to the plaintiffs, and not for any purpose beneficial to the defendant, read in evidence the deposition of a witness taken by consent. The plaintiffs then prayed the court for their opinion and direction to the jury, that if they find, from the evidence above stated, that the note upon which this action is brought [**4]  has been changed or altered in the dating, but that the changes or alterations were made by Wilmer as the agent of the defendant, while the note was in his possession, and before it had ever been discounted or transferred to any one, and that after the change had been made, he transferred the same to the plaintiffs for a fair and valuable consideration, that in that case the letters and other proof above mentioned, contain sufficient evidence of authority to Wilmer to make the change, and the plaintiffs are entitled to recover. Upon this prayer the court, (Clagett and Shriver, A. J.) were divided in opinion, and therefore the opinion and direction were not given to the jury. The plaintiffs excepted.

3. The plaintiffs then prayed the opinion and direction of the court to the jury, that if they find from the evidence that the dating of the note has been changed, but that the same was changed while the note was in the possession of Wilmer, the agent of the defendant, and by him, and afterwards passed to the plaintiffs, that then the letters, and other proof above stated, are evidence to the jury that Wilmer was authorised by the defendant to make the change. The court refused to [**5]  give this direction. The plaintiff excepted.

4. The plaintiff also prayed the opinion and direction of the court to the jury, that if they find from the evidence that the note was delivered by the defendant to Wilmer as his agent, to be discounted in Baltimore, and that the note was blank as to date and sum at the time of such delivery, and that Wilmer filled up the date and sum; but before he discounted the note, and while it continued in his possession, changed the date to that which it now bears, and then endorsed it to the plaintiffs for a fair and bona fide consideration, that such change does not destroy the validity of the note, and that if the defendant insists that any other alteration has been made so as to destroy the validity of the note; it is incumbent on him to prove that it has been made. Upon this prayer the court were divided in opinion, and the direction was consequently refused. The plaintiffs excepted.

5. The opinion prayed by the plaintiffs in this exception was like that in the next preceding exception, except that it also called upon the court to say, that there was no evidence in the cause of any other alteration of the note than that of its date.  [**6]  Upon this prayer the court were also divided in opinion, and the direction was not given. The plaintiffs excepted. Verdict and judgment being for the defendant, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Harper, for the Appellants; and by

Key and T. Buchanan, for the Appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J. POLK and EARLE, J.  

OPINION:

 [*161]  THE COURT concurred with the County Court in the opinions expressed in the several bills of exceptions.
JUDGMENT AFFIRMED, a.

a See Cardwell vs. Martin, 1 Camp. 79, 81, (note;) 180, b, (note 5.)